DEPARTMENT OF STATE SECURITY SERVICE ZAMFARA STATE COMMAND & ORS v. ZAYYANU MOHAMMAD & ORS
(2018)LCN/12380(CA)
In The Court of Appeal of Nigeria
On Friday, the 23rd day of February, 2018
CA/S/32/2016
RATIO
COURT AND PROCEDURE: WHERE THERE IS DELAY IN FILING COUNTER-AFFIDAVIT
“Still on the issue, in the case of NIPCO PLC vs. HENSMOR NIGERIA LTD & ORS (2011) LPELR-9264, this Court per DANJUMA, JCA held the view that; So long as good and substantial reasons justifying the delay are proffered, the length of the delay in filing the application may not be considered material. See ADEKUNLE OJORA vs. BAKARE (1976) 15 C 47; BINTUMI vs. FANTAMI (1998) 13 NWLR (PT. 581) 264; UNITY BANK OF NIG. PLC vs. NDACE (1998) 3 NWLR (PT. 541)331. Arising from the foregoing, the attitude of this Court to the hasty disposal of the application of the Appellants as Respondents when they sought the exercise of the discretion of the Court below to extend time for them to file their Counter Affidavit amounts to no more in the estimation of this Court than a clear deprivation of the Appellants of their Constitutionally right to Fair Hearing.” PER MUHAMMED LAWAL SHUAIBU J.C.A
FUNDAMENTAL RIGHT: RIGHT TO PERSONAL LIBERTY
“I need to be emphasized that the Constitution of the Federal Republic of Nigeria, 1999 (as amended) while guaranteeing the citizen’s right to personal liberty under Section 35 thereof also provides for circumstances in which the said right may be curtailed by law upon reasonable suspicion that a person has committed a criminal offence. See Section 35 (1)(c) of the 1999 Constitution and the cases of F.R.N. V. EKWENUGO (2007) 3 NWLR (PT.1021) 209 AND SAMBO V. NIG. ARMY COUNCIL (2017) 7 NWLR (PT.1565) 400.” PER MUHAMMED LAWAL SHUAIBU J.C.A
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria
Between
1. DEPARTMENT OF STATE SECURITY SERVICE Zamfara State Command
2. HON. ATTORNEY GENERAL Zamfara State
3. ABDULLAHI KURE (SDS) DSS Gusau Appellant(s)
AND
1. ZAYYANU MOHAMMAD
2. ALH. LAWALI HASSAN
3. HAJIYA JUMMAI HASSAN
4. ALH. IBRAHIM HASSAN
5. ALH. YUSUF ABDULLAHI
6. ABDULLAHI MAMAN Respondent(s)
FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Ruling of the Federal High Court, Gusau Judicial Division (hereinafter referred to as the Lower Court) holden at Gusau, Zamfara State presided by Z. B. ABUBAKAR, J in suit No. FHC/GS/CS/13/2015 delivered on the 1st day of December, 2015. The Appellants at the Court below were the 1st, 2nd and 4th Respondents, wherein the 1st, 2nd, 3rd and 4th Respondents on the 27th of October, 2015 filed motion for the enforcement of the 1st Respondent’s Fundamental Rights to personal liberty among others, before Court below brought pursuant to Order 2 Rule 1 of the Fundamental Right (Enforcement Procedure) Rules, 2009, Sections 34, 35, 41 and 46 of the Constitution of the Federal Republic of Nigeria, 1999 and in accordance with Articles 5 and 6 of the African Charter on Human and People Rights (Ratification and Enforcement) Act, Cap 10, Laws of the Federation of Nigeria, 1999 wherein the Applicant prayed for the following Orders:
“The applicant is praying this Hon. Court for the following orders:
1. AN ORDER of Hon. Court restraining all the Respondents, their agents, police, privies and/or anybody acting on their behalf and instructions from arresting, detaining, harassing and/or interfering in any way with the right to personal liability of the 1st Applicant or any member of his family.
2. A DECLARATION that the kidnap, arrest and detention of this 1st and 2nd Applicants is illegal, unconstitutional and an outright violation of the fundamental right to personal liability of the Applicants are guaranteed by the 1999 Constitution of the Federal Republic of Nigeria.
3. An ORDER compelling all the Respondents jointly and severally to pay ?20,000,000.00 as general damage for unlawful arrest, detention, torture, intimidation and harassment of the 1st and 2nd Applicant.
4. AN ORDER directing all the Respondents to tender public apology to the 1st and 2nd Applicant in two National daily Newspapers for breach of their fundamental right to human dignity, personal liability and freedom of movement as provided by the 1999 Constitution of the Federal Republic of Nigeria.
5. AND FOR SUCH FURTHER ORDERS as this Hon. Court may deem fit to make in this circumstance of this case…”
The 1st, 2nd, 3rd and 4th Respondents motion was accompanied by a 28 paragraphs affidavit, a statement and description of the parties, the reliefs sought and the grounds upon which the reliefs are sought as well as verifying affidavit. Upon being served with the originating processes of the 1st, 2nd, 3rd and 4th Respondents, beginning from the headings, Affidavits and as well as the opening paragraphs, they were all discovered to be defective. (Pages 1, 3, 10, 13, 15, 19, 21, 28 and 31 of the Record of Appeal refers). In opposition of the grant of the Application, the Appellants filed a Notice of Preliminary Objection dated 9th day of November, 2015 challenging the jurisdiction of the trial Court based on the numerous defects of the 1st, 2nd, 3rd and 4th Respondents processes.
In addition, the Appellants as Respondents, via a Motion on Notice filed on the 26th November, 2015 sought the leave of the Court below for extension of time to file and serve their Counter-Affidavit and written addresses out time. On the 26th day of November, 2015 when the Application came up for hearing and after all the processes have been served on all the parties, without any objection by any of the Respondents, the trial Court refused the grant of the Application and effectively denied the Appellants an opportunity to defend the case. Finally the Court entered a judgment against the Appellants with award of damages. In its judgment also the Court overruled the Appellants? Notice of Preliminary Objection Challenging the Competence of the application despite numerous defects addressed by the Appellants in the 1st, 2nd, 3rd and 4th Respondents’ processes.
Dissatisfied with the said Ruling, the Appellants lodged an appeal to the Court of Appeal Sokoto Division vide a Notice of Appeal dated the 15th day of December, 2015 but filed on the 16th December, 2015 Challenging the decision of the Lower Court on Grounds 1, 2 and 3 of their Notice of Appeal. (Pages 95-98 of the Record of Appeal).
These Grounds of Appeal are reproduced here without their particulars as follows;
GROUNDS OF APPEAL;
1. The learned trial judge erred in law when he refused to grant the 1st, 2nd and 4th Respondent’s Application for extension of time to file a counter affidavit dated 25th day of November, 2015 and filed on the 26th day of November, 2015 thereby deprived them of their right to fair hearing.
2. The Court below erred in law when it failed and misdirected itself to take cognizance of paragraphs 4.5 of the 1st, 2nd and 4th Applicant’s Preliminary Objection dated and filed on the 9th November, 2015 in its Ruling.
3. The Ruling of the trial Federal High Court below is unreasonable, unwarranted and cannot be supported by the weight of evidence.
ISSUES FOR DETERMINATION;
Three (3) issues were nominated for the determination of this Court by the Appellants thus;
1. Whether the learned trial Judge of the Lower Court was right in refusing or neglecting to have afforded the Appellants’ full opportunity to defend their case thereby occasioned a miscarriage of justice against the Appellants.
2. Whether the numerous defects of the Respondents’ Processes did not deprive the trial Court of its jurisdiction to have heard and determined the suit.
3. Whether the learned trial Judge was right or justified in law to have awarded One Million (#1,000,000.00) Naira to the 1st and 2nd Applicants against the Respondents jointly and severally when there was no evidence to support same.
The Appellants’ Brief of argument was settled by SIRAJO ABDULLAHI, ESQ., (Deputy Director, Civil Litigations, Ministry of Justice, Zamfara State, Gusau) while the Respondents neither filed a Respondents’ Brief of Argument nor were they represented in Court despite proof of service of processes on them. At the hearing of this Appeal on the 28-11-2017, learned Counsel for the Appellants adopted Brief of argument on behalf of the Appellants urged this Court to resolve this Appeal in favour of the Appellants.
In essence, therefore, the Respondents filed no brief of argument in this Appeal. The implication of this, legally speaking is that the Respondents are deemed to have conceded to the points raised in the brief of argument of the Appellants herein. See the cases of JOHN HOLT VENTURES LTD vs. OPUTA (1996) 9 NWLR (PT. 470) 101; ONYEJEKWE vs. THE NIGERIA POLICE COUNCIL (1996) 7 NWLR (PT. 463) 704; UBA PLC vs. AJILEYE (1999) 13 NWLR (PT. 653) 116; This being an Appeal, however, the Appellants still have the obligation to succeed or fail on the strength of their case. It is not in the character of the Court of Appeal to accept hook, line and sinker the allegations contained in the Appellants’ brief without critically examining whether or not the Reliefs claimed are grantable or sustainable in view of the prevailing law and circumstances applicable to the case in question. That is exactly what this Court is out to do in this Appeal.
SUBMISSIONS OF COUNSEL;
APPELLANTS;
ISSUE ONE;
Whether the learned trial Judge of the Lower Court was right in refusing or neglecting to have afforded the Appellants’ full opportunity to defend its case thereby occasioned a miscarriage of justice against the Appellants.
This Court is informed that upon being served with the Respondents’ originating processes and motion papers, the Appellants filed a Notice of Preliminary Objection dated the 9th day of November, 2015, challenging the competence of the Respondents’ processes on the grounds of numerous defects in both in form and substance. In addition to this, the Appellants on the 26th day of November, 2015 filed an application seeking an extension of time to file their Counter affidavits in opposition of the grant of the Respondents’ motion. The Appellants were of course out of time at the time of seeking to regularize their position but unfortunately the Court below refused to grant the motion for extension of time and consequently, Appellants did not get an opportunity to reply nor were they served with any Counter affidavits by the Respondents in opposition to their application for extension of time.
This Court is further informed that in this matter 1st and 3rd Appellants who are Agents of the Federal Government of Nigeria, arrested the 1st Respondent alone on an alleged infringement of his right upon facts deposed in paragraphs 4 (a)-(d) of the Respondents’ Joint Counter Affidavit filed on the 26th day of November, 2015 deposed to by one Musa Abdullahi, a litigation Secretary of the 2nd Appellant. (Pages 65 to 67 of the Record of Appeal refers).
Learned Counsel drew attention to the fact that the 1st and 3rd Appellants being Agents of the Federal Government of Nigeria and distinct from the 2nd Appellant, as a matter of practice, law and facts, the information they have must be the Appellants’ response to the Application seeking the enforcement of rights and where an action is filed against the 1st and 3rd Appellants, they are required to forward the Court’s processes to the 2nd Appellant to act on their behalf and that time is required for the 2nd Appellant to study and subsequently minutes the said Court’s processes to the appropriate Department for necessary action.
Counsel said that while all of this would be in the process of being done, the five (5) days required by the provision of Order II Rule 6 of the Fundamental Right Enforcement Procedure Rules, would have expired. Counsel however, reiterated that case law has provided a remedy to situations like this, even when the time for the Appellants to respond was above five (5) months and have expired. He cited the case of OGUNDIMU vs. KASUNMU (2008) 8 MJSC 19 at 22, where the apex Court per KUTIGI, JSC (as he then was) had this to say;
“It is settled law that it is not the duration of the delay that matters, rather it is successful explanation of the same. A delay of two to or three years may be waived if it is properly explained, while a delay of even three months may not be countenanced. The application is refused and it is dismissed.”
Arising from the foregoing, Counsel submitted that the most important thing in the eyes of the law is for the Appellants to advance good and substantial reasons for the delay via the Appellants’ Application for an extension of time filed on 26th November, 2015 but not to ignore same even when there was no Counter Affidavit by the opposing Counsel. Learned Counsel cited the case of NIPCO PLC vs. HENSMOR (NIG.) LTD. (2011) 23 WRN 140 AT 142, where this Court made it unequivocally clear that so long as the good and substantial reasons justifying the delay are proffered the length of the delay in filing the application may not be material.
Counsel contended that it is obligatory and a duty on Court to make pronouncements on every application filed before it, as it was held in the case of: AFRO CONTINENTAL LTD vs. COOP ASSOCIATION (2003) 13 NSCQR 186 at 196 where the apex Court per UTHMAN MOHAMMED, JSC (as he then was) had this to say on the subject;
“It is trite law and mandatory that a Court must make a decision and pronounce on every application which is before it and failure to do so is a breach of fair hearing. The motion which the trial judge refused to hear has questioned his Court’s competency to hear the matter before him …”
The submission of Counsel therefore the Appellants, is that refusing or neglecting the Appellants’ Application for an extension of time is a denial to Appellants’ right to fair hearing and he urged this Court to so hold. Counsel also cited the case of ABUBAKAR vs. YAR?ADUA (2008) ALL FWLR (PT. 404) 1409 at 1442, per TOBI JSC on the issue of fair hearing thus:
“Courts of law cannot sacrifice the constitutional principle of fair hearing at the altar of speedy hearing of cases when the contents of the speedy hearing are not in consonance with fair hearing. The point I am struggling to make is that speedy hearing of a case which denies a party to pre-trial evidence, such as interrogatories, is not fair as it runs contrary to the constitutional principle of fair hearing.”
Finally, Counsel argued that the consequences of a breach of the rule of natural justice or fair hearing is that the proceedings in the case are null and void; that where the principle is violated, it does not matter whether the proper thing had been done as the consequences would be the same; that is to say, the proceedings will still be null and void. See CITEC INT’L ESTATE LTD vs. FRANCIS (2016) EJSC (VOL. 30) at 135. Counsel urged this Court to resolve this issue in favour of the Appellants and against the Respondents.
ISSUE TWO;
Whether the numerous defects of the Respondents’ processes did not deprive the trial Court of its jurisdiction to have heard and determined the Suit.
The submission of Counsel is that the processes filed by the Respondents were replete with numerous defects, which ought to have led to their being struck out by the Court below but who chose to overlook them. Counsel contended that these defects included the wrong headed processes of the Respondents Motions, wrong opening paragraphs of all the Motions and as well as the headings of their respective affidavits. Counsel further contended that these are against the Rules, Principles and the Standard required by the law, practice and procedure of our Court in adjudication over a dispute for the parties. The attention of this Court is drawn to the aforementioned numerous defects of the Respondents’ processes identified in the records of Appeal at Pages 1, 3, 10, 15, 19, 21, 28 and 31.
The argument of Counsel is that the aforementioned pages demonstrate beyond argument that the Court below completely failed refused or neglected to consider the case put forward for the Appellants in the written address submitted by the Counsel. According to Counsel the obligation of the judge is to reach a decision, which coheres best with the total body of authoritative legal standard he is bound to apply. He added that the paradigm of a rational decision is one reached according to rules, principles and standards and that the law of evidence imposes upon the judge the duty to reject irrelevant matters and confine him to the consideration of relevant matters. He cited the case of: ILOABACHIE vs. ILOABACHIE (2000) 5 NWLR (PT. 656) 178 AT 223 paras A-B. Counsel urged this Court to resolve this issue in favour of the Appellants and against the Respondents.
ISSUE THREE;
Whether the learned trial Judge was right or justified in law to award One Million (#1,000,000.00) Naira to the 1st and 2nd Applicants against the Respondents jointly and severally when there was no evidence to support same?
The submission of Counsel under this issue is that the award of the sum of #1,000,000.00 to the 1st and 2nd Respondents herein is against the weight of evidence as there was no credible and conclusive evidence to support same. Counsel contended that the settled principle in the common Law jurisdiction is that, the Appellate Courts are usually reluctant in questioning or inquiring into the exercise of discretion by Lower Courts. But that reluctance, however, Counsel submits vanishes once it is clearly observed that the exercise of such discretion was “manifestly wrong, arbitrary, reckless, and injudicious as it was held by the Supreme Court in EZE vs. A-G, RIVERS STATE (2001) 18 NWLR (PT. 746) 524; GENERAL & AVIATION SERVICES LTD vs. THAHAL (2004) 10 NWLR (PT. 880) 50 at 90-91.
Counsel also argued that this Court in the UAC (NIG.) PLC vs. SOBODU (2007) 48 WRN 34 at 56-57 Per ADAMU-AUGIE, JCA (as he then was) applied the above settled principles and held thus;
“I have considered the above submission on issue 3 of the appellant’s brief. From the respondent’s claim under paragraph (e) of his statement of claim and from the assessment of the damages awarded by the learned trial Judge in his judgment (at pages 222-223) it is clear that the damages so awarded was a general damages which was described as flowing from the event (i.e. from the defendant’s act) are generally presumed by the law and they need not be pleaded or proved.”
The contention of Counsel is that the Court below having denied the Appellants’ ample opportunity to defend their action to move their application filed on the 26th day of November, 2016, such damages awarded by the trial Lower Court was not justified and/or made in line with the law, hence the need for this Court to intervene with the discretion by exercised by the trial Court. He said that the reason for this is that the trial Judge ought not to have denied the Appellants’ right to fair hearing to defend their action in line with the principle of fair hearing. Counsel urged this Court to resolve the two issues in favour of the Appellants.
RESOLUTION OF APPEAL
On the question of whether the learned trial Judge of the Lower Court was right in refusing or neglecting to have afforded the Appellants’ full opportunity to defend their case thereby occasioning a miscarriage of justice against the Appellants, the answer to that question can only be rendered in the positive.
The facts of what played out between the parties in this instant Appeal is as clear as daylight. Upon being served with the Respondents’ originating processes and motion papers, the Appellants spotted what they termed ‘numerous defects’ in the processes of the Respondents. They responded by filing a Notice of Preliminary Objection dated the 9th day of November, 2015, challenging the competence of the Respondents’ processes on those grounds. In addition, the Appellants on the 26th day of November, 2015 filed an application seeking extension of time to file their Counter affidavits in opposition of the grant of the Respondents’ motion. The Appellants did not pretend that they were not out of time and indeed, that was why they sought the Lower Court’s indulgence in regularizing their processes.
However, that is not to be as the Court below on the 1-12-2015 in its Ruling on the Application exercised its discretion in refusing leave. Consequently, Appellants did not get an opportunity to reply to the allegations of the Applicants who had alleged a breach of their Fundamental Human Rights.
It would however be recalled that the reasons for the delay on the part of the Appellants in filing their Counter Affidavits were duly documented in paragraphs 4 (a) to (e) of their affidavit in support deposed to by one Musa Abdullahi on the 26-11-2015 and contained at page 59 of the records of Appeal as follows;
4. That I was informed on Thursday the 25th day of November, 2015 by Sirajo Abdullahi, Esq., a Deputy Director Civil Litigation who is handling this matter in our office at about 3:10 pm in the course of discharging my official duties and I verily believed him to be true as follows;
a. That he was assigned to handle this case on the 6th day of November, 2015 by the Solicitor General of the 2nd Respondent’s office.
b. That the 1st, 2nd and 4th Applicants are the 1st, 2nd and 4th Respondents in the Application filed in suit FHC/GS/13/2015.
c. That as at the time the 1st Respondent sent the Court’s processes to our office annexed with an Order dated the 4th day of November, 2015 to handle same, the 2nd Respondent’s office was not aware of any fact of this case and the time within which to file a Counter Affidavit as well as written address was almost out
d. That when the 2nd Respondent’s Counsel met with the 1st Respondent’s legal officer to verify allegations against their office the time prescribed by the Rules of this Court has elapsed
e. That not until today, the 25th of November, 2015 around 3:10 pm, a legal officer who is in charge of the case returned from a short break for loss of his relation at Jigawa and handed down the remaining relevant facts and documents in respect of this Application.”
In the Lower Court’s Ruling delivered on the 2-12-2015, the Court’s reason for refusing the grant of leave is contained at page 83 of the printed records, lines 29 to 32 and at page 84 lines 1 to 2 thus;
“I have perused the affidavit in support and I cannot found any good reason for long delay in filing this process. As a matter of fact the deposition in paragraph 4(a) has exposed the indolence of the Applicant. By the said deposition the Respondents (that is 1st, 2nd, 4th) have been conferred to have received the Motion on Notice in this case on the said 06-11-2015 and therefore they have no reason not to have responded as required by law.”
It is important to note that the reason given by the Court below for refusing to grant the Motion for Extension of time to file the Appellant’s Counter Affidavit, is the reason contained at paragraphs 4 (a) of the Affidavit in support of Appellants’ motion where is it disclosed that the processes were received in as far back as the 6-11-2015 by the office of the Solicitor-General of the Ministry of Justice, Zamfara State, who in turn assigned it to the office of the Deputy-Director, Civil Litigation and who was assigned to handle the matter. There are a number of assumptions to be made here on the issue of the assignment of the matter to the office of the Deputy-Director, Civil Litigation who is a Public officer engaged in the Zamfara State Ministry of Justice, now asked to make representations on behalf of the 1st and 3rd Appellants who are Public Officers engaged as Agents of the Federal Government of Nigeria.
The first of a number of assumptions is that the likelihood of long consultations to be carried out and the exchange of official correspondences between the Zamfara State Ministry of Justice on the one hand and the Office of the Department, State Security Services (DSS) on the other hand, cannot be ruled out. That, in the opinion of this Court is what the Appellants have deposed to in their paragraphs 4 (b) to (e) in their supporting Affidavit and which the Court below did not bother to consider. The isolated consideration of the Appellant’s paragraph 4(a), rather than the holistic consideration of the entire paragraphs of the supporting affidavit of the Appellants, which the Court below had embarked upon is clearly an error as it is completely flawed. See the case of OGUNSEYE & ORS vs. TRUSTEES WORLD MISSION AGENCY INCORP. & ORS (2017) LPELR 42767, where this Court per TSAMMANI, JCA had the following to say on the subject;
“It should however, be noted that in the construction of a document, including pleadings the entire document must be given a holistic consideration. In other words, it is an acceptable rule that in the construction of documents including pleadings the document must be read as a whole and its parts given a harmonious effect. The various paragraphs of the pleadings should therefore not be read in isolation but effort must be made to achieve harmony between the various paragraphs. See AKAIGHE vs. IDAMA (1964) ALL NLR 317; AGUNDO vs. GBERBO (1999) 9 NWLR (PT. 1071) 378 andNIG. ARMY vs. AMINUN-KANO (2010) 5 NWLR (PT. 1188) 429.”
Another assumption which is apposite in the circumstances of this Appeal is the fact that if there were any delays at all, the gravity of which was heavy enough to deprive the Appellants of the opportunity of registering their defense to the action in which the Respondents had sought to enforce their Fundamental Human Rights, it is a delay which must have been occasioned not by the Appellant themselves but by their Counsel and the settled principle of law is that the sins of a delay occasioned by Counsel should not be visited on the client. See the case of NWANKWO vs. NWANKWO (1993) LPELR-2111 SC, where the apex Court per UCHE-OMO, JSC had this to say on the subject; It is also trite that delays for which Counsel can be held responsible should not be laid at the doors of his client (appellant), it is also the principle observed by the Courts that very late applications for amendment of pleadings and other papers filed shall be granted so long as the interest of justice is thereby served vide CHIEF OJAH & ORS vs. CHIEF OGBONI & ORS (1976) 4 SC 69.”
Still on the issue, in the case of NIPCO PLC vs. HENSMOR NIGERIA LTD & ORS (2011) LPELR-9264, this Court per DANJUMA, JCA held the view that;
So long as good and substantial reasons justifying the delay are proffered, the length of the delay in filing the application may not be considered material. See ADEKUNLE OJORA vs. BAKARE (1976) 15 C 47; BINTUMI vs. FANTAMI (1998) 13 NWLR (PT. 581) 264; UNITY BANK OF NIG. PLC vs. NDACE (1998) 3 NWLR (PT. 541)331
Arising from the foregoing, the attitude of this Court to the hasty disposal of the application of the Appellants as Respondents when they sought the exercise of the discretion of the Court below to extend time for them to file their Counter Affidavit amounts to no more in the estimation of this Court than a clear deprivation of the Appellants of their Constitutionally right to Fair Hearing.
The decision to therefore embark upon a speedy disposition of the matter without giving the Appellants an opportunity of being heard is clearly unacceptable to this Court. The consequence or fatality of the denial of the right to fair hearing automatically renders the decision or judgment of Court delivered null and void. See the case of OJENGBEDE vs. ESAN (2001) LPELR-2372 where the apex Court per IGUH, JSC had this to say on the subject;
“There can be no doubt that fair hearing is in most cases synonymous with natural justice, an issue which clearly is at the threshold of our legal system. Once there has been a denial of fair hearing as guaranteed under Section 33(1) of the Constitution 1979, as Amended the whole proceedings automatically become vitiated with a basic and fundamental irregularity which renders them null and void. See OTAPO vs. SUNMONU (1987) 2 NWLR (PT.58) 587; WILSON vs. ATTN-GEN BENDEL (1985) 1 NWLR (PT. 4) 572?.”
In the final analysis, this Appeal succeeds. The issues two and three are resolved in favour of the Appellants and the judgment of the Court below delivered in Suit No. FHC/GS/CS/13/2015 on the 1st day of December, 2015 is set aside. The parties are to bear their respective costs.
HUSSEIN MUKHTAR, J.C.A.: I was honoured with a preview of the judgment just delivered by my learned brother Frederick O. Oho, JCA. I agree with the entire reasoning therein and the conclusion that the appeal has merit and should be allowed.
I therefore allow the appeal and I subscribe to the consequential orders made in the judgment.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the advantage of previewing the judgment just delivered by my learned brother, Frederick O. Oho, JCA and I agree with the reasoning and conclusion that the appeal is meritorious.
I need to be emphasized that the Constitution of the Federal Republic of Nigeria, 1999 (as amended) while guaranteeing the citizen’s right to personal liberty under Section 35 thereof also provides for circumstances in which the said right may be curtailed by law upon reasonable suspicion that a person has committed a criminal offence. See Section 35 (1)(c) of the 1999 Constitution and the cases of F.R.N. V. EKWENUGO (2007) 3 NWLR (PT.1021) 209 AND SAMBO V. NIG. ARMY COUNCIL (2017) 7 NWLR (PT.1565) 400.
In the instant case, the hasty manner in which the Lower Court disposed the application of the appellants as respondents when they sought for extension of time to file their counter affidavit was a clear violation to their constitutional right to fair hearing which inevitably renders the Lower Court’s decision null and void.
Appearances:
Sirajo Abdullahi Esq.(Deputy Director, Civil Litigation Ministry of Justice, Zamfara State) For Appellant(s)
There were no representations on the behalf of the Respondents
