EYIDE v. MOMOH (2020)

EYIDE v. MOMOH

(2020)LCN/14036(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Thursday, March 26, 2020

CA/B/413/2011

Before Our Lordships:

Helen Moronkeji Ogunwumiju Justice of the Court of Appeal

Samuel Chukwudumebi Oseji Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

CLIFFORD EYIDE APPELANT(S)

And

DEACON RICHARD MOMOH RESPONDENT(S)

RATIO

WHETHER OR NOT GROUNDS OF APPEAL MUST SET OUT THE PARTICULARS OF ERROR ALLEGED

All that is required in law is that a ground of appeal may either set out distinctly the particulars of error alleged or it may incorporate and make such particulars of error as part and parcel of the ground of appeal. Once this required threshold is met, such a ground of appeal is competent. I find Ground 5 to have met this threshold and it is therefore, competent in law. The preliminary objection to its competent lacks merit. See Abubakar V. Waziri (2008) 14 NWLR (Pt. 1108) 507 @ p. 532. PER GEORGEWILL, J.C.A.

WHEN CAN A HEARING BE SAID TO BE FAIR

It was also submitted that in law a hearing can only be fair when all the parties to the dispute are given a hearing or an opportunity of a hearing and thus if one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as fair hearing and contended that the Appellant was not heard before Judgment was entered in favor of the Respondent by the Court below since in law it was the duty of the Court below to give hearing notices to the parties and hear the other side before the rights and obligations of the parties can be fully determined and urged the Court to hold that the proceedings and judgment of the Court below fell far below this threshold requirement of fair hearing and thus liable to be set aside and to allow the appeal and set aside the proceedings and judgment of the Court below. Counsel relied on Ogundoyin V. Adeyemi (Supra) @ p. 422; Ene V. Asikpo (2011) All FWLR (Pt. 553)1907 @ p. 1916.

It was further submitted that in law, a trial Court cannot begin to hear a matter before it unless it is abundantly sure that the Defendant is aware that the matter against him is fixed for hearing on that date and where the Defendant is absent from the Court, it must be satisfied through evidence of an affidavit of service that the Defendant has properly and satisfactorily been served with the hearing notice in accordance with the law and where there is necessity for a fresh hearing notice to be issued when original hearing date is aborted by unforeseen circumstance and contended that the Court below failed in its duty to ensure that equal opportunity is afforded the Appellant, being a Defendant before it, to defend the claims made against him by the Respondent, more so having duly filed his statement of defense and urged the Court to hold that since the Court below failed to make sure that the Appellant was served with hearing notice it amounted to a breach of right to fair hearing of the Appellants and thereby occasioned a grave miscarriage of justice and to allow the appeal and set aside the judgment of the Court below for being null and void and of no legal effect whatsoever. Counsel relied on So Mai sonka Ltd. V. Adzege (2001) NWLR (Pt. 718) 312; P. N. Emerah & Sons Nig. Ltd V. Dunu (1998) 9 NWLR (Pt. 564) 96; Olomosola V. Oloriawo (2002) NWLR (Pt. 750) 113 @ p. 123; Olaniyan V. Adeniyi (2007) 3 NWLR (Pt. 1020) 1 @ p. 21. PER GEORGEWILL, J.C.A.

BREACH OF RIGHT TO FAIR HEARING

The law is that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case. This is so because fair hearing is primarily a matter of fact. Thus. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constitute a breach of the party’s right to fair hearing. See Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See also Newswatch Communications Limited V. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt. 993) 144. PER GEORGEWILL, J.C.A.

THE TRUE TEST OF FAIR HEARING

I thought I should observe at once here and now, that the true test of fair hearing is indeed the impression of a reasonable person who was present at or through the trial whether from his observation justice has not only been done but is seen to have been done in the case. Indeed, justice must not only be done in the thinking of the Court but must also be seen to have been done in the thinking and or estimation of any reasonable person seised of the proceedings of the Court. See Otapo v Sunmonu (1987) 2 NWLR (Pt. 58) 587. See also Wilson v. AG of Bendel State (1985) 1 NWLR (pt.4) 572; U.Amadi v. Thomas Aplin & Co Ltd (1972) ALL NLR 413; Mohammed Oladapo Ojengbede v. M. O. Esan & Anor (2001) 18 NWLR (Pt.746) 771. PER GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the High Court of Edo State, Coram: F. O. Akinbami J., (as he then was) in Suit No. B/250/2003: Deacon Richard Momoh V. Clifford Eyide & Anor delivered on 28/2/2011, wherein the claims of the Respondent were granted against the Appellant.

The Appellant, who was the 1st Defendant before the Court below, was peeved with the said judgment and had appealed against it to this Court vide his Original Notice of Appeal filed on 15/4/2011 on six grounds at pages 85 – 90 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on 20/12/2011 but was deemed properly transmitted on 19/5/2014. The Appellant’s Brief was filed on 30/10/2018. The Respondent’s Brief was filed on 19/11/2018. The Appellant’s Reply was filed on 29/11/2018. The Respondent filed a Notice of Preliminary Objection on 28/6/2018.

At the hearing of this appeal on 10/3/2020, Michael Ekwemuka Esq., learned counsel for the Appellant adopted the Appellant’s brief and reply brief as their arguments and urged the Court to allow

the appeal and set aside the judgment of the Court below. On his part, V. N. Eluma Esq., learned counsel for the Respondent adopted the Respondent’s brief as his arguments in support of his preliminary objection and in opposition to the appeal and urged the Court to strike out the Appeal for being incompetent and or dismissing the same for lacking in merit and to affirm the judgment of the Court below.

By a Writ of Summons in Suit No.B/250/2003 filed on 6/5/2003, and by his amended Statement of Claim filed on 6/5/2009, the Respondent as Claimant claimed against the Appellant, and two other persons, as Defendants, one of whose name was later struck out following his death pending the determination of the Suit, the following reliefs, namely:
1. A declaration that the Plaintiff is the rightful owner of that pieces or parcels of land covering an area of 1650.805 square meters and 1.676 hectares at Ward A, Ogbaneki, Benin City covered by survey plan numbers ISO/ED/1090/93 and JSO/ED/814/94 and Plaintiff is entitled to be granted a Certificate of Occupancy in respect of these lands.
2. The sum of N10, 000, 000 being damages suffered by the

Plaintiff when the Defendants, their servants and/or agents removed Plaintiff’s beacon post, put buildings on his parcels of land and sold the land.
3. An order of perpetual injunction restraining the Defendants, their servants and agents from continuing with their acts of trespass on the said parcel of land. See pages 1 – 3 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
Upon service of the Writ of Summons, the Appellant who was the 1st Defendant filed a Joint Statement of Defense with the 2nd Defendant. The gist of the case of the Appellant in this appeal is that at the Court below, the 2nd Defendant had on 16/8/2010 written to the Hon Chief Judge of Edo State praying for the reassignment of the Respondent’s Suit to another Judge. However, the application was refused by the Hon Chief Judge of Edo State vide his letter dated 18/8/2010. The Court below then continued with the hearing of the Respondent’s Suit, while the 2nd Defendant continued in his protestations that the Court below is presided over a first cousin to the Respondent, who was the Plaintiff before the Court below. The Appellant did not lead any evidence due to

circumstances which is the subject of this appeal. On 9/2/2011, the very date the Respondent called two witnesses in the absence of the Appellant and closed his case, his counsel proceeded to address the Court below and at the conclusion of which the Court below adjourned the matter to the very next date, 10/2/2011 for judgment. However, the judgment was subsequently delivered on 28/2/2011 by the Court below, hence the appeal. See pages 4, 10 – 12, 58 – 62, 63 – 79 and 83 – 84 of the Record of Appeal.

On the other hand, the gist of the case of the Respondent in this appeal that Respondent, is that he was the Plaintiff before the Court below, wherein he claimed against the Appellant and others a declaration of title to some parcels of land, damages for trespass and an order of perpetual injunction in respect of the land put in dispute by the Appellant and his co-defendants. However, though the Appellant entered appearance and filed a joint Statement of Defense, he never filed his defense as he chose rather to stay away from the proceedings following the denial of an application for transfer of the suit by the 2nd Defendant which was refused by the Hon. Chief

Judge of Edo State. The Court proceeded with the trial, and at the conclusion entered its judgment in favor of the Respondent on his claim of ownership to the land in dispute against the Appellant, against which judgment this appeal was filed by the Appellant. See pages 1 – 3 and 83 – 83 of the Record of Appeal.

ISSUE FOR DETERMINATION
In the Appellant’s brief, three issues were distilled as arising for determination from the six grounds of appeal, namely:
1. Whether the Court below was right when it entered judgment in favor of the Respondent without affording the Appellant an opportunity to be heard? (Distilled from Grounds 1 and 2)
2. Whether the Court below was right when it assumed jurisdiction to continue with the trial, conclude same in favor of the Respondent when the condition precedent to assumption of jurisdiction in the circumstances of the case had not been met? (Distilled from Ground 3)
3. Whether from the totality of the evidence adduced by the Respondent, the Court below was right when it held that the Respondent was the rightful owner of the land in dispute? (Distilled from Grounds 4, 5 and 6)

In the Respondent’s brief, three issues were distilled as arising for determination in this appeal, namely:
1. Whether the Appellant’s Appeal should not be dismissed based on the Preliminary Objection?
2. Whether the Appellant was accorded fair hearing by the Court below?
3. Whether the Court below rightly entered judgment for the Respondent as per his claim?

I have taken time to review the pleadings of the parties and the evidence as led by the Respondent. I have also calmly considered the circumstances leading to the judgment of the Court below delivered on 28/2/2011 entering judgment for the Respondent against the Appellant on the evidence led by the Respondent and his witnesses only. I have also considered the submissions of counsel in their respective briefs in the light of the proceedings leading up to the decision of the Court below, and it does appear to me that the three issues as distilled in the Appellant’s brief are apt and best represent the real issues arising for determination in this appeal, and a consideration of which would, in my view, cover a consideration of issues two and three as distilled in the

Respondent’s brief. But before considering these issues for determination, there is a notice of preliminary objection challenging the competence of the appeal and since in law competence is the soul of adjudication, let me proceed anon to consider and resolve the preliminary objection first!

NOTICE OF PRELIMINARY OBJECTION
By a Notice of Preliminary Objection filed on 28/6/2018, the Respondent is challenging the competence of this appeal and praying this Court for an Order dismissing the Appeal in that all the six grounds of appeal are incompetent. The grounds for the preliminary objection are as follows:
1. That Grounds 1, 2, 3, 4, and 6 are incompetent in that they are not borne out by the printed records.
2. That Ground 5 is incompetent in that it has no particulars
3. That the Notice of Appeal filed on 15/4/2011 is incompetent in that it is wrongly headed in the Court below rather than in this Court and is also undated.

RESPONDENT’S COUNSEL SUBMISSIONS
Learned counsel for the Respondent had submitted that Grounds 1, 2, 3, 4 and 6 are incompetent in that their particulars are either false or speculative

and or not borne out by the printed records and contended that in law a particulars of error not related to a ground of appeal is incompetent and liable to be struck out and urged the Court to hold that since these Grounds of appeal are not furnished with particulars of the error complained as borne out by the printed records they were incompetent and to strike them out. Counsel referred to Order 6 Rule 2 (2) of the Court of Appeal Rules 2011 and relied on Gwandu V. Gwandu (2007) 17 WRN 77 @ p. 83; Nwadike V. Ibekwe (1987) 4 NWLR (Pt. 67) 718 @ p. 747; Ikweki V. Ebele (2005) 7 MJSC 125 @ p. 129; Nwokoro V. Onuma (1999) 2 NWLR (Pt. 631) 342 : pp. 272 – 273; Asogwa V. PDP (2013) 7 NWLR (Pt. 1353) 207 @ p. 220; Okonkwo V. Okonkwo (2013) 51 WRN 112 @ p. 116; Imonikhe V. AG. Bendel State (1992) 6 NWLR (Pt. 248) 396 @ p. 399.

It was also submitted that the entire appeal is incurably defective in that the Notice of Appeal is wrongly headed “in the High Court of Justice, Edo State of Nigeria” instead of “in the Court of Appeal”, which is a mandatory requirement of the law and contended that such a fundamentally defective notice of appeal cannot initiate a

valid appeal and urged the Court to hold that the Notice of Appeal is incompetent and to strike out the Notice of Appeal together with the entire appeal for being incompetent.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
Learned counsel for the Appellant had drawn the attention of the Court to the fact that an issue for determination arising from a preliminary objection is not and cannot be treated as an issue for determination in the substantive appeal as was done in the Respondent’s brief and contended that the preliminary objection argued improperly as part of the substantive appeal is itself incompetent and liable to be struck out and urged the Court to so hold and to strike out the incompetent notice of preliminary objection.

It was also submitted that a community reading of grounds of appeal together with their specific particulars as endorsed in the Notice of Appeal and the Record of Appeal would readily reveal that all the six grounds of appeal are clearly borne out by the Record of Appeal and contended that from the proceedings of 9/2/2011 at pages 58 – 62 of the Record of Appeal it was clearly shown that there was a Motion on

Notice filed on 6/1/2011 by the Appellant which was struck out by the Court below in the absence of the Appellant and two of the Respondent’s witnesses were taken as well as the final address of the Respondent’s counsel on the same date of 9/2/2011 and judgment adjourned to the very next date of 10/2/2011 and urged the Court to hold that these are the particulars that grounded the grounds of appeal in the Notice of Appeal and to dismiss the preliminary objection for lacking in merit. Counsel relied on Ugwu V. State (2013) 14 NWLR (Pt. 1374) 257 @ p. 281.

It was further submitted that a ground of appeal need not carry separate particulars of error once the particulars of error have been incorporated and made part and parcel of a ground of appeal and contended that in law such a ground of appeal is competent and not liable to be struck out as erroneously submitted by the Respondent and urged the Court to so hold and to dismiss the preliminary objection for lacking in merit. Counsel relied on Abubakar V. Waziri (2008) 14 NWLR (Pt. 1108) 507 @ p. 532.

It was also further submitted that once a Notice of Appeal has been duly filed at the

Registry of the Court below, the effective date is the date of filing and not the date it was prepared and contended that the emphasis in law is on the date of filing of a Notice of Appeal and not the date of its preparation and urged the Court to discountenance this ground of preliminary objection. Counsel referred to Order 6 Rule 10 of the Court of Appeal Rules 2016 and relied onAyoola V. Yahaya (2005) 7 NWLR (Pt. 923) 122 @ Pp. 135-136.

It was finally submitted that the wrong heading of the Notice of Appeal is a mere accidental error on the part of counsel and amounts to mere irregularity that will not affect the Appellant’s constitutional right of appeal and contended that at any rate in law a wrongly headed Notice of Appeal but filed in the Registry of the Court below as prescribed by law is not rendered incompetent merely by the fact that it was wrongly headed and urged the Court to hold that it is not every minor error in a Notice of Appeal that would vitiate an otherwise valid appeal and to dismiss the preliminary objection for lacking in merit. Counsel relied on Clev Josh Ltd V. Tokimi (2008) 13 NWLR (Pt. 1104) 422 @ pp. 440 – 441;

Addis Ababa V. Adeyemi (1976) 12 SC 51; Surakatu V. Nigeria Housing Development Society Ltd. & Anor(1981) 4 SC 26; Nwani V. Bakari (Supra); Abubakar V. Yar’ Adua (2008) 4 NWLR (Pt. 1078) 465 @ p. 511.

RESOLUTION OF PRELIMINARY OBJECTION
My Lords, I have taken time to consider the submissions of counsel for the respective parties on the Preliminary Objection. I have also taken time to go through the extant rules of this Court, which is the Court of Appeal Rules 2016. However, the Preliminary objection was also said to have been brought pursuant to Order 6 Rule 2 (2) of the Court of Appeal Rules 2011 as the applicable rule of this Court. I only need to point it out at once that in law the applicable rule of procedure is the extant rule at the time the matter is being heard and not the rule of procedure at the time the matter was filed. This is in contradistinction to the applicable substantive law which is the law at the time the matter was filed. Thus, on this score alone the Notice of Preliminary Objection brought pursuant to Court of Appeal Rules 2011, being no longer the applicable rules of this Court at the time the appeal was heard on 10/3/2020, the

Preliminary Objection is itself incompetent and thus liable to be struck out.

I have looked calmly at the six grounds of appeal filed by the Appellant on 15/4/2011 at pages 85 – 90 of the Record of Appeal. I am at a loss at how an issue said to be arising for determination in the preliminary objection, whose object is to terminate in limine the life of the entire appeal, was argued rather as the very first issue for determination in the substantive appeal itself, the very appeal whose hearing it is seeking to stop? The counsel for the Appellant had contended and urged upon this Court, and quite rightly too in my view that the preliminary objection without a distinct issue for determination is incompetent and thus liable to be struck out. I agree! Consequently, the inchoate preliminary objection is hereby struck out. However, assuming but without so holding that the Notice of Preliminary Objection was competent, I shall proceed to consider it on its merit.

On the merit, I have taken a critical look at each of the six grounds of appeal together with their particulars, where there is any, and read through the entire record of appeal particularly the

proceedings of the Court below on 9/2/2011 as can be seen at pages 58 – 62 of the Record of Appeal and I find it abundantly clear that the entire genesis of this appeal and the six grounds of appeal originated from the proceedings of the Court below on 9/2/2011, which clearly bears out these grounds of appeal. A ground of appeal alleging a breach of the right to fair hearing need not arise directly from the judgment complained of but may arise in proceedings prior to the delivery of the judgment and yet by law because of its sacrosanct and constitutional nature could be raised as a challenge to the judgment the result of an alleged breach of the right to fair hearing. I therefore see no merit in the Respondent’s contention that these grounds, particularly grounds 1, 2, 3, 4 and 6 are not borne out by the Record of Appeal. See Ugwu V. State (2013) 14 NWLR (Pt. 1374) 257 @ p. 281.

I have looked more critically at ground 5 in the light of the complaint that it has no particulars, and I thought it is important to point it out at one here and now that in law a ground of appeal need not carry separate and distinct particulars of error set out outside

the ground itself. All that is required in law is that a ground of appeal may either set out distinctly the particulars of error alleged or it may incorporate and make such particulars of error as part and parcel of the ground of appeal. Once this required threshold is met, such a ground of appeal is competent. I find Ground 5 to have met this threshold and it is therefore, competent in law. The preliminary objection to its competent lacks merit. See Abubakar V. Waziri (2008) 14 NWLR (Pt. 1108) 507 @ p. 532.

This Court has over the years in several of our judgment reiterated the need for care and diligence by counsel both in the preparation and presentation of the cases of their clients before the Court. Agreed, that it is the law, now well accepted, that a litigant should not be punished for the sins of his counsel, yet counsel have been enjoined to exercise care and diligence in handling the cases of their clients.

I can see that the Notice of Appeal filed on 15/4/2011 is undated and generally, or should I say ordinarily, in law an undated document is a worthless document. However, in a Notice of Appeal, what determine the filing of an appeal is not the

date of the preparation of the notice of appeal but the date on which it was filed at the Registry of the Court below as prescribed by law. It is purely on this basis that I would, and do hereby, discountenance the preliminary objection challenging the competence of Notice of Appeal on the ground that it is undated since it was duly filed on 15/4/2011 before the Registry of the Court below as required by law. See Order 6 Rule 10 of the Court of Appeal Rules 2016. See also Ayoola V. Yahaya (2005) 7 NWLR (Pt. 923) 122 @ pp. 135-136.

My Lords, I now come to an issue which I had before now thought had been well settled in our law and should not rear its ugly head ever again in pour legal jurisprudence, the issue of wrongly headed Notice of Appeal. This issue has long since 1981 been laid to rest in our law by the apex Court. The law is that mere wrong heading of a Notice of Appeal without more, particularly where filed at the appropriated Registry of the Court below, cannot by itself alone render an otherwise valid Notice of Appeal invalid. That is the law! I therefore find this ground of the preliminary objection as not only lacking in merit but vexatious

as well and it is hereby, without much ado, overruled. See Surakatu V. Nigeria Housing Development Society Ltd. & Anor(1981) 4 SC 26.
In today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway. Indeed, long gone are the heydays of technicality ridding – roughshod over substantial justice in our Courts. Nowadays, substantial justice is king! Technicality, for just its sake devoid of real justice must bow to substantial justice! In the circumstances therefore, I hold that the Respondent’s Notice of Preliminary Objection is both incompetent and or lacking in merit. Consequently, it is hereby struck out for being incompetent and or dismissed for lacking in merit. See Andrew V. INEC (2018) 9 NWLR (Pt. 1625) 507 @ pp. 540 – 541.

ISSUE ONE
Whether the Court below was right when it entered judgment in favor of the Respondent without affording the Appellant an opportunity to be heard?

APPELLANT’S COUNSEL SUBMISSIONS
Learned counsel for the Appellant had submitted that it was a fundamental error by the Court below when it entered judgment in favor of

the Respondent without giving the Appellant an opportunity to he heard in that the right to fair hearing is a fundamental right of the Citizen as enshrined in the Constitution of Nigeria 1999 (as amended) and contended that that the proceedings and judgment of the Court below amounted clearly to a denial and flagrant breach of the Appellant is a right to fair hearing as guaranteed to him by the Constitution and urged the Court to hold that both proceedings and judgment of the Court below reached in breach of the right of the Appellant to fair hearing are null and void and thus liable to be set aside and to set aside the judgment of the Court below. Counsel referred to Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as Amended) and relied on Ogundoyin V. Adeyemi (2001) 13 NWLR (Pt. 730) 403 @ p. 421.

before Judgment was entered in favor of the Respondent by the Court below since in law it was the duty of the Court below to give hearing notices to the parties and hear the other side before the rights and obligations of the parties can be fully determined and urged the Court to hold that the proceedings and judgment of the Court below fell far below this threshold requirement of fair hearing and thus liable to be set aside and to allow the appeal and set aside the proceedings and judgment of the Court below. Counsel relied on Ogundoyin V. Adeyemi (Supra) @ p. 422; Ene V. Asikpo (2011) All FWLR (Pt. 553)1907 @ p. 1916.

It was further submitted that in law, a trial Court cannot begin to hear a matter before it unless it is abundantly sure that the Defendant is aware that the matter against him is fixed for hearing on that date and where the Defendant is absent from the Court, it must be satisfied through evidence of an affidavit of service that the Defendant has properly and satisfactorily been served with the hearing notice in accordance with the law and where there is necessity for a fresh hearing notice to be issued when original hearing date is

aborted by unforeseen circumstance and contended that the Court below failed in its duty to ensure that equal opportunity is afforded the Appellant, being a Defendant before it, to defend the claims made against him by the Respondent, more so having duly filed his statement of defense and urged the Court to hold that since the Court below failed to make sure that the Appellant was served with hearing notice it amounted to a breach of right to fair hearing of the Appellants and thereby occasioned a grave miscarriage of justice and to allow the appeal and set aside the judgment of the Court below for being null and void and of no legal effect whatsoever. Counsel relied on So Mai sonka Ltd. V. Adzege (2001) NWLR (Pt. 718) 312; P. N. Emerah & Sons Nig. Ltd V. Dunu (1998) 9 NWLR (Pt. 564) 96; Olomosola V. Oloriawo (2002) NWLR (Pt. 750) 113 @ p. 123; Olaniyan V. Adeniyi (2007) 3 NWLR (Pt. 1020) 1 @ p. 21.

RESPONDENT’S COUNSEL SUBMISSIONS
On his issue two, learned counsel for the Respondent had submitted that the fact relied upon by the Appellant that the dates suggested by him for an adjournment and taken by the Court below was not communicated to

him was most spurious, fictitious and disingenuous because there is no trace of this information on the printed records and contended that if such state of affairs ever existed it would have been captured in the Records of Appeal, taking cognizance of its importance to the Appellant’s allegation of denial of fair hearing and urged the Court to hold that lack of diligence on the part of counsel cannot become failure of the Court below to afford the Appellant the opportunity to be heard and erroneously being contended in this appeal and to dismiss the appeal and affirm the judgment of the Court below. Counsel referred to the Edo State High Court (Civil Procedure) Rules 2012 and relied on Unilorin V. Oyalana (2011) 31 WRN 73 @ p. 80.

It was also submitted that the allegation that the Court below concluded the matter within two days even with notice to recuse herself from the trial on account of her alleged relationship with the Respondent was nowhere captured in the entire proceedings where such an issue was raised or made an issue and more so when there is no part of the printed record where counsel applied to the Court below to disqualify itself from the

case on account of her alleged relationship to the Respondent and contended that the letters at pages 83 – 84 4 of the Records of Appeal were written application to the Hon. Chief Judge of Edo State to transfer the suit to another Court, which the Chief Judge promptly replied refusing the application for transfer and urged the Court to hold no case of breach of the right to fair hearing of the Appellant has been made out against the Court below to warrant this Court to allow the appeal but rather to dismiss the appeal and affirm the judgment of the Court below. Counsel relied on Unilorin V. Oyalana (Supra) @ p. 80.

It was further submitted that the allegation that the Court below hastily concluded the hearing and determination of the case within two days to deprive the Appellant of fair hearing is at variance with the printed records in that though the Court below had adjourned from the case form 9/2/2011 to 10/2/20111 for judgment, the judgment was however not delivered until the 28/2/2011 and contended that the real facts were that the 1st and 2nd Defendants and their counsel deliberately stayed away from the proceedings of 9/2/11, having failed to

accomplish their tendentious desire to get the case transferred to another Court since they had on the records never appeared before the Court below throughout the previous proceedings and urged the Court to hold that their absence in the Court below on 9/2/2011 at the resumed hearing was not unusual, even though they were duly aware of the hearing date and to dismiss the appeal for lacking in merit and to affirm the judgment of the Court below. Counsel relied on Unilorin V. Oyalana (Supra) @ p. 81.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply, learned counsel for the Appellant had submitted that the crux of this appeal is that the Appellant ought to be given notice of the date fixed for the hearing of the case and contended that it is clear from the argument of the Respondent that it must be shown that such notice was given to the Appellant before a plea of denial of fair hearing can be defeated and urged the Court to hold that no such hearing notice was given to the Appellant since the principles of fair hearing cannot be sacrificed at the altar of speedy determination of a case and to allow the appeal and set aside the null proceedings

and judgment of the Court below. Counsel relied on Abubakar V. Yar’ Adua (2008) 4 NWLR (Pt. 1078) 468 @ p. 503.

RESOLUTION OF ISSUE ONE
My Lords, issue one deals squarely with the question whether or not the proceedings of the Court below and the subsequent judgment it delivered on 28/2/2011 amounted to a breach of the constitutionally guaranteed right to fair hearing of the Appellant as alleged by the Appellant or was in observance of the Appellant’s right to fair hearing as contended by the Respondent?
Now, the observance of the right to fair hearing of the citizenry in the determination of their civil rights and obligations by every Court in the land is a fundamental prerequisite to valid adjudication to ensure that decisions are not reached without a hearing of the citizen. However, an allegation of denial of the right to fair hearing, as grave as it could be and the dire consequences it could have on the proceedings and judgment of a Court if proved, does not operate in a vacuum but is dependent on the facts and circumstances of each given case. In other words, whether the right to fair hearing was breached or not is a question of

facts to be determined on the facts and circumstances placed before the appellate Court.
The law is that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case. This is so because fair hearing is primarily a matter of fact. Thus. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constitute a breach of the party’s right to fair hearing. See Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See also Newswatch Communications Limited V. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt. 993) 144.
My Lords, there can be no doubt that fair hearing, which in most cases is synonymous with fair trial and natural justice, is an issue which is clearly at the threshold of our legal system and thus once it is shown that there has been a denial of fair hearing as guaranteed by the Constitution, the whole proceedings automatically becomes vitiated. A denial of fair hearing can ensure from either the conduct of the proceedings and or the decisions of the Court in

the hearing of a case. The gravamen of the complaint of the Appellant under issue one is the failure of service of hearing notice for the proceedings of 9/2/2011 in which not only two of the Respondent’s witnesses testified and were discharged from the witness stand but the Respondent’s counsel was also allowed to make his final address in the case, all in the absence of the Appellant, and the case adjourned to the very next date of 10/2/2011 for judgment, which judgment was eventually delivered on 28/2/2011 without hearing the defense of the Appellant.
I thought I should observe at once here and now, that the true test of fair hearing is indeed the impression of a reasonable person who was present at or through the trial whether from his observation justice has not only been done but is seen to have been done in the case. Indeed, justice must not only be done in the thinking of the Court but must also be seen to have been done in the thinking and or estimation of any reasonable person seised of the proceedings of the Court. See Otapo v Sunmonu (1987) 2 NWLR (Pt. 58) 587. See also Wilson v. AG of Bendel State (1985) 1 NWLR (pt.4) 572;

U.Amadi v. Thomas Aplin & Co Ltd (1972) ALL NLR 413; Mohammed Oladapo Ojengbede v. M. O. Esan & Anor (2001) 18 NWLR (Pt.746) 771.
Let me now proceed to consider the facts as can be gleaned from the record of appeal of the proceedings before the Court below to scrutinize to see whether the facts fits the bill of denial of fair hearing as vehemently alleged by the Appellant but stoutly denied by the Respondent. These are what transpired before the Court below in this case leading to the subsequent delivery of its judgment on 28/2/2011.
The Respondent’s Suit was filed way back on 6/5/2003. It first came up before A.D. Ighodalo J., and later before O. Osadiaye J., before subsequently arriving at the Court below presided over by F. O. Akinbami J., (as he then was), who heard it to final conclusion and delivered the judgment now being appealed against on 28/2/2011 in favor of the Respondent against the Appellant. The case clearly suffered many contentions outside the pleadings of the parties bordering on application for its transfer from the Court below to another judge but which application was promptly refused by the Hon Chief Judge of Edo

State. At a point, particularly on 15/1/10 the Respondent’s Suit was dismissed by the Court below for lack of diligent prosecution at the instance of the Appellant. However, on the application of the Respondent, it was relisted to the cause list of the Court below about six months later for hearing and determination on the merit as allowed by the Rules of the Court below. See page 22 – 36 of the Record of Appeal.
Interestingly, on 21/1/2011 when the case came up before the Court below for continuation of hearing of the Respondent’s case, both parties were absent but wrote to the Court below for an adjournment of the matter to a subsequent but suggested different dates. While the Respondent wrote for an adjournment suggesting some dates, namely; 9/2/2011, 14/2/2011 and 16/2/2011, the Appellant’s counsel also wrote for an adjournment suggesting some dates, namely; 15/2/2011, 17/2/2011 and 18/2/2011. However, the Court below in granting the adjournment sought by both parties settled on one of the dates suggested by the Respondent, namely; 9/2/2011 as the next date for the continuation of hearing of the Respondent’s case. On 9/2/2011,

the Respondent and his witnesses were present but neither the Appellant nor his counsel was present. The Court below noted this fact and proceeded with the continuation of hearing of the Respondent’s case. The Respondent called two witnesses who at the close of their evidence in chief were discharged from the witness stand by the Court below since neither the Appellant nor his counsel was in Court to cross examine the witnesses. The Court below then proceeded to taking the oral final address of the Respondent’s counsel on the same date of 9/2/2011 and subsequently adjourned the matter to the very next date of 10/2/2011 for judgment.
However, the judgment was eventually delivered on 28/2/2011. These are all that transpired before the Court below on 21/1/2011 and 9/2/2011 going by the record of appeal.
My Lords, the question arising from the above undisputed facts of the proceedings and circumstances before the Court below is namely this: Is the proceedings of 9/2/2011 following from the proceedings of 21/1/2011 in breach of the right to fair hearing of the Appellant? In other words, and simply put: was the Appellant put on notice or was

he so entitled to be out on notice by way of fresh hearing notice as to the hearing of the Respondent’s case on 9/2/2011?
In order to answer the above simple question in this appeal, I have taken time to meticulously scan through the entirety of the printed records and the entire submissions of the Respondent’s counsel to see if the fresh date of 9/2/2011 as settled upon by the Court below on 21/1/2011 as the next date of adjournment for the continuation of the case, being of the three dates suggested by the Respondent and not amongst the three dates suggested by the Appellant’s counsel, was communicated to the Appellant by way of service of fresh hearing notice, being that the 9/2/2011 date was not only earlier than any of the three dates suggested by the Appellant’s counsel but was also not amongst the three dates suggested by him. Here, I bear in mind that the Court below was not bound to have settled on any of the three suggested dates by the Appellant’s counsel since adjournment dates are ordinarily subject to the convenience of the Court.
So, were the proceedings of 9/2/2011 before the Court below lacking

in the Constitutional requirement of fair hearing to all the parties before decision affecting them is reached by the Court below? In other words, was the Appellant entitled to a fresh hearing notice against the date of 9/2/2011 settled upon by the Court below from amongst the dates suggest by the Respondent on 21/1/2011 and further whether or not it was fair and proper for the Court below not only to proceed to the hearing of Respondent’s two witnesses and discharging them from the witness stand without the participation of the Appellant but also proceeding to take the oral final address of the Respondent’s counsel on the same date of 9/2/2011 and adjourning the matter not for the oral final address of the Appellant, should he intend to do so, but for judgment on the very next date of 10/2/2011? Was the Appellant fairly heard or given the opportunity to be fairly heard before the decision affecting his civil rights and obligation was reached in the judgment delivered by the Court below on 28/2/2011? When and how should a Court of law draw the line and maintain the balance between the need for expeditious determination of matters before it within a

reasonable time and the due observance of the Constitutional rights of the parties to be fairly heard before decisions affecting their civil rights and obligations are reached by the Court?
But first what did the Court below say in its judgment as regards the steps taken by it in the proceedings of 9/2/2011? This was what the Court below had to say inter alia on this crucial issue, which happily it averted its mind to in its judgment:
“As I had earlier pointed out, both defendants and their Counsel did not attend Court on the 9/2/2011 when this Suit came up for further hearing despite the fact that this date is one of the dates in the letter of adjournment. Plaintiff wrote to Court on the last adjourned date. Even though defendants filed a Joint Statement of Defense, they did not attend Court to defend this Suit. No reasons were given by them for their failure to appear in Court on the further hearing date. This Court having been satisfied that they were duly served the letter from Plaintiff asking this Court for an adjournment of hearing to the 9/2/11, proceeded to hear the case in their absence. In my view, it is therefore clearly not the

business of this Court to find out why they opted out of the proceedings…In Mohammed V. Hussein (1998), 64, LRCN, 5319, the Supreme Court held as well as other trial Courts that it is the paramount responsibility of an appellate Court to hear the parties but not to shut them out, to hear the merits of the case or appeal and decide according to those merits…What then does a trial Court do in the circumstances, when as in this case, the defendants entered appearance through their Counsel and filed their Joint Statement of Defense. Their Counsel cross-examined PWI and they failed to attend Court on the next adjourned date. The question is should this Court wait indefinitely for the defendant before proceeding with the trial? I respectfully think not. The result is that the Plaintiff’s other two witnesses led copious evidence which were neither challenged nor contradicted. It is trite law that where a party gives evidence in a proceeding which ought to have been challenged or cross-examined upon and it is not so challenged, the trial Court should act on the unchallenged evidence and accept it as being correct and the truth

thereof…” See pages 75 – 76 of the Record of Appeal.
In law, the issue of adjournment and indeed date of adjournment is one within the exercise of discretion of the Court below. However, such discretion must be properly and validly exercised judicially and judiciously based on the facts and circumstances of the case and not whimsically or carelessly or capriciously or thoughtlessly or even perversely with scant or little or no regards to the facts and circumstances of the case. It must also not be exercised in such a manner as to occasion a miscarriage of justice to the party. See Akinwale V. BON (2001) 4 NWLR (Pt. 704) 448 @ p. 458. See also Ashiru V. Ayoade (2006) 6 NWLR (Pt. 976) 405 @ p. 425; Olori Motors & Co. Ltd V. UBN Ltd. (1998) 6 NWLR (Pt. 554) 493 @ p. 506; Heritage Ban Co. Ltd. V. NUC (2014) 15 NWLR (Pt. 1429) 76; Ukachukwu V. PDP (2014) 4 NWLR (Pt. 1396) 90.
The Court below having on 21/1/2011 settled on one of the three dates as suggested by the Respondent and adjourned that case to that date for continuation of hearing ought to, and was indeed under a duty, to issue and serve fresh hearing date on the Appellant, none

of which suggested three dates were settled upon by the Court below as the date of adjournment for the continuation of hearing of the Respondent’s case. Regrettably, the Court below failed to take this vital step in the due administration of justice geared towards ensuring and securing the right to fair hearing of parties before it.
Now, whether a party before the Court is an irritant or recalcitrant or even out – rightly annoying in his conducts, he is still entitled to the safe guards of the law put in place to endure fair hearing to the citizen, such as service of hearing notice where the circumstance demands the service on him of a fresh hearing notice, and no Court of law can on account of the conduct of a party deny him or abrogate his right to fair hearing without any lawful justification merely on the basis of his annoying and or recalcitrant or irritating conducts before the Court. So also no matter how protracted a proceedings might have become and the amount of delays occasioned by a party, no Court of law can abrogate or deny even such a party the right to be fairly heard in accordance with law before a decision one way or the other

affecting his civil rights and obligation is reached by the Court. This is so because a proved breach of the right to fair hearing carries with it devastating consequences on both the proceedings, no matter how meticulous, and judgment, no matter how sound, of the Court.
It is thus better for Courts to err on the side of caution when it comes to the observance of the right to fair hearing as Constitutionally guaranteed to the parties before the Courts. Thus, in law where there is a proved breach of the Constitutionally guaranteed right to fair hearing of the parties, a decision reached thereby is both susceptible and liable to be set aside without much ado by an appellate Court if so called upon. This is so because the principles of fair hearing are not only fundamental to adjudication but also a Constitutional requirement which cannot be legally wished away. It is indeed a fundamental right of universal application. See Agbapounwu V. Agbapounwu (1991) 1 NWLR (Pt. 165) 33 @ p. 40. See also J.O.E. Co. Ltd V. Skye Bank Plc (2009) 6 NWLR (Pt.1138) @ p. 518; Robert C. Okafor & Ors V. AG and Commissioner for Justice Anambra State (1991) 6 NWLR (Pt. 200) 659.

My Lords, having considered the totality of the circumstances of this appeal as revealed in the printed record of all that transpired before the Court below on 21/1/2011 and 9/2/2011 leading to the judgment of the Court below eventually delivered on 28/2/2011, I find as fact that the entire proceedings of the Court below on 9/2/2011, completely skewed in obvious and unpretentious favor of the Respondent without even the slightest consideration for the equal right to fair hearing of the Appellant and his entitlement to justice also was steeped in the flagrant breach of the Appellant’s right to fair hearing as Constitutionally guaranteed to him by law. Agreed that the Court below might have become exasperated by the conducts of the Appellant and his counsel, yet in law that does not obviate the need for the observance of the Appellant’s right to fair hearing by the due service of fresh hearing notice on the Appellant in the circumstances of what had transpired before the Court below on 21/1/2011 when the Respondent’s case was adjourned to 9/2/2011.
I find the entire proceedings of 9/2/2011 as completely unfair, oppressive and

inimical to the interest of even handed justice to which both parties were entitled as of right from the Court below. A proceeding in which one of the twin pillars of natural justice, audi alteram partem – let the other party be heard, was brazenly breached by the Court below cannot be said to have been a fair proceedings in law at all! The Appellant was denied a fair hearing on the 9/2/2011 by the Court below and no reasonable person observing the skewed proceedings of that date before the Court below would say justice was not only done but was seen to have been done to the Appellant by the Court below. Thus, in my finding both the proceedings of 9/2/2011 without any hearing notice served on the Appellant and the judgment of the Court below delivered on 28/2/2011, including its touted reasons as earlier set out in this judgment, which is not even borne out by the printed record of the proceedings of 21/1/2011 and 9/2/2011, for denying the Appellant of his right to fair hearing as Constitutionally guaranteed to him, were unfair, unjust, hasty and all amounted to a nullity having been arrived at in breach of the Appellant’s right to fair hearing as enshrined

in Section 36(1) of the Constitution of Nigeria 1999 (as amended). See P. N. Emerah& Sons Nig. Ltd. V. Dunu 1998) 9 NWLR (Pt. 564) 96, where it was held inter alia thus:
“Where the failure of a party in a case to appear in Court is due to the failure to serve him a notice of hearing, any judgment given in that circumstance will be one given without jurisdiction and it is liable to be set aside on appeal. In the instant case, since the appellants complained of non-service of hearing notice on them and there was no rebuttal evidence, the judgment entered against them is a judgment entered without jurisdiction and it is therefore a nullity.”
The right to fair hearing is a Constitutional right intended by the framers of the Constitution for the safeguard of the citizen from being condemned or adjudged liable without being heard. It is so fundamental in law that the effect of its breach, as has been so profoundly pronounced upon by the Courts in a plethora of decided cases as are replete in the law reports, would almost invariably render such proceedings and resultant judgment a nullity. See Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt.1323) 276.

See also Amadi V. INEC (2013) 4 NWLR (Pt.1345) 595; Ovunwo & Anor. V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522; Pan African Incorporation & Ors. V. Shoreline Lifeboat Ltd & Anor (2010) All FWLR (Pt. 524) 56; Action Congress of Nigeria V. Sule Lamido & Ors (2012) 8 NWLR (Pt.1303) 560 @ p.593; Judicial Service Commission of Cross River State & Anor V. Dr. (Mrs) Asari Young (2013) 11 NWLR (Pt.1364) 1.
Now, while it is true that “justice delayed is justice denied” yet it is also equally true that “justice rushed is justice crushed” and thus it would indeed be a travesty of justice for a Court not to properly and dispassionately hold the balance of justice between the two extremes of rushing or crushing justice. The most important thing is that at all times in proceedings before the Courts the enshrined constitutionally guaranteed rights of the citizen to fair hearing, to be fairly heard, before decision affecting his civil rights and obligations is reached, must be faithfully observed by the Courts. The right to be heard and for substantial justice to be done to the parties by the Courts cannot be sacrificed at

the altar of speed! See Section 36 (1) of the Constitution of Nigeria 1999 (as amended) which provides as follows:
“In the determination of his civil rights and obligation, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
See alsoAbubakar V. Yar’Adua (2008) 4 NWLR (Pt. 1078) 468, p. 503, where the Supreme Court had stated inter alia as follows:
“…Courts of law cannot sacrifice the constitutional principle of fair hearing at the altar of speedy hearing of cases when the content of the speedy hearing is not in consonance with fair hearing….Although the law is that speedy hearing is one vital and important aspect of fair hearing, speedy hearing of a case which denies a party access to pre – trial evidence, such as interrogatories, is not fair as it turns contrary to the Constitutional principle of fair hearing. In the instant case, the Court of Appeal was wrong in rejecting the application to

administer interrogatories on the ground that it would impede speedy trial of the case.”
In my finding, the Court below ought not only to have issued and served a fresh hearing notice of the next adjourned date of 9/2/2011 on the Appellant, it ought also to have exercised great caution in its proceedings of 9/2/2011 when it proceeded as if it were going to be the last of its days in the Court so that it must conclude the Respondent’s case that day come rain come shine! It not only heard two witnesses of the Respondent in chief but did not even think it wise to adjourn even if for one day the cross examination of these witnesses by the Appellant, who had no proved notice of hearing for the date of 9/2/20111. That was not all! The Court also not only failed to adjourn the case at the close of the Respondent’s case for defense by the Appellant for whatever it was worth but proceeded to take the final address of the Respondent’s counsel, and as if that was not enough of the charade and travesty of justice and the right to fair hearing of the Appellant, the Court below once again failed to adjourn the case for the final address of the

Appellant for whatever it was worth, having taken the final address of the Respondent’s counsel. Justice and its dispensation at all times by the Courts must not only be fair but must also be even handed! I say no more on this!
In the circumstances therefore, I hold firmly that the Appellant was denied of his right to fair hearing by the unjustified and unreasonable proceedings conducted by the Court below on 9/2/2011 without any notice to him of that date of hearing, to which he was lawfully entitled, being not one of the three suggested dates in his counsel’s letter for adjournment on 21/1/2011. I reiterate it, even if for the up-teemed time, that the right to fair hearing is not a cosmetic right but a fundamental one and must be scrupulously observed by the Courts. Though, and truly so, justice delayed is justice denied, yet justice rushed is justice crushed and in both extreme circumstances it is the lack of proper balancing by the Court that leads to the injury. Thus, a Court should neither be too slow nor be too fast as being in haste. It must be patient and painstaking while hearing and deciding the rights, obligations and liabilities

of the parties before it by scrupulously observing the right to fair hearing of all the parties before it. In the light of all the findings above, I have no difficulty resolving issue one in favor of the Appellant against the Respondent.

ISSUES TWO AND THREE
My Lords, having come to the inescapable conclusion that the appeal has merit in that both the proceedings of 9/2/2011 and the judgment of the Court below of 28/2/2011 were reached in flagrant breach of the Appellant’s right to fair hearing, that is indeed the end of the whole matter! Consequently, there is no longer in law any need for this Court to proceed to consider and resolve issues two and three also on their merit, since to do so at this stage would in my view amount to a mere academic exercise and a waste of the scarce and very precious judicial time on what is already staring us in our faces as a nullity. See Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853, where the full Court of the Supreme Court had this to say on this issue:
“It is a principle of law long settled that the general attitude of the Courts of law is that they are

loathe in making pronouncements on academic/hypothetical issues as it does not serve any useful purpose.”
See also Oke V. Mimiko (No. 1) (2014) 1 NWLR (Pt. 1388) 225 @ pp. 254 – 255; Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 @ p 1497.

My Lords, regrettably, it has taken all of 9 years, since the very unfair judgment was entered against the Appellant in flagrant breach of his right to fair hearing, for the Appellant to finally get justice in this case at least at the level of this Court to return to the Court below to be able to ventilate his defense to the claims of the Respondent before another judge of the Court below as the matter may be reassigned to by the Hon Chief Judge of Edo State. What a colossal waste of the precious time of the Appellant for all of 9 years. How so sad! What a travesty and miscarriage of justice!

On the whole therefore, having resolved the sole issue for determination in this appeal in favour of the Appellant against the Respondent, I hold that the appeal has merit and ought to be allowed. Consequently, it is hereby so allowed.

In the result, the Judgment of the High Court of Edo State, Coram: F. O. Akinbami J., (as he then was) in Suit No. B/250/2003: Deacon Richard Momoh V. Clifford Eyide delivered on 28/2/2011, wherein the claims of the Respondent were granted against the Appellant is hereby set aside.

In its stead, the Respondent’s Suit No. B/250/2003: Deacon Richard Momoh V. Clifford Eyide is hereby remitted to the Honorable Chief Judge of Edo State for same to be reassigned to another judge of the Court below for same to be heard de – novo and determined expeditiously according to law.
There shall be no order as to cost.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the erudite judgment of my learned brother Sir Biobele Abraham Georgewill JCA. I agree with the reasoning and conclusions therein that this appeal has merit and should be allowed. I abide by the consequential orders therein.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read before now the judgment just delivered by my learned and noble brother Biobele Abraham Georgewill, JCA.

I agree with the reasoning and conclusion contained therein to the effect that the appeal is meritorious.

I also allow this appeal. I abide by the consequential orders made in the leading judgment including the order as to cost.

Appearances:

Michael Ekwemuka, Esq. For Appellant(s)

N. Eluma, Esq. For Respondent(s)