FYENU & ANOR v. BAKO
(2022)LCN/16704(CA)
In The Court Of Appeal
(MAKURDI JUDICIAL DIVISION)
On Friday, May 27, 2022
CA/MK/33/2011
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Cordelia Ifeoma Jombo-Ofo Justice of the Court of Appeal
Muslim Sule Hassan Justice of the Court of Appeal
Between
1. CHIEF FYENU 2. BABATUNDE ADEKUNLE APPELANT(S)
And
NA ALLAH BAKO RESPONDENT(S)
RATIO
THE POSITION OF LAW ON WHERE A DEFENDANT DEFAULTS TO FILE A DEFENSE
To finish with the case of the plaintiff and adjourn straight away for judgment without making provision for defence to open its case or whatever, is determinable pursuant to the provisions of Order 22 Rule 9 of the High Court (Civil Procedure) Rules, 2010 which stipulates as that:
“In all actions other than those in the preceding Rules of this order, if the defendant makes default in filing a defence, the plaintiff may apply to a Judge for judgment, and such judgment shall be given upon the statement of claim as the Judge shall consider the plaintiff to be entitled to.”
This is to say that where the defendant has defaulted in filing their defence, the plaintiff may apply to the Judge for judgment. PER JOMBO-OFO, J.C.A.
THE DUTY OF THE COURT WHERE A MOTION IS FILED IN CONNECTION WITH A MATTER PENDING BEFORE A COURT
This is in the face of the settled law that, where a motion is filed in connection with a matter pending before a Court, the Court is duty bound to hear and rule on such application, no matter how irregular or frivolous it may appear, before deciding on the substantive suit. A failure to do so would amount to a breach of the applicant’s right to fair hearing. See the cases of Mobil Producing Unlimited vs. Monokpo (2003) 18 NWLR (Pt. 852) 346 at 413, Onyekwuluje vs. Animashaun (1996) 3 NWLR (Pt. 439) 637 at 644, Nalsa & Team Associates vs. NNPC (1991) 8 NWLR Pt. 212, pg. 652 at 676, Magna Maritime Services Ltd vs. Otesu (2005) All FWLR Pt. 270, pg. 1995 at 2012 and United Parcel Service Ltd vs. Prince Obot Ufot (2006) 2 NWLR Pt. 963, pg. 1, where Omokri, JCA., had this to say:
“It is the bounden duty of a Court to hear and determine all applications pending before it before making a final pronouncement by way of delivery of judgment. This is so even where a Statement of Defence was irregularly filed. The Court in the interest of justice is bound to examine it to see if it discloses adefence on the merit. See A-G., Federation vs. Ajayi (2000) 12 NWLR Pt. 11, pg. 89.” PER JOMBO-OFO, J.C.A.
WHETHER OR NOT THE COURT MUST HEAR ALL COURT PROCESS BROUGHT BEFORE IT
Also, in the authority of H.S.H.M.C. Ltd. vs. Sahyra Nig. Ltd. (2008) All FWLR Pt. 397, pg. 132, this Court further reiterated at pg. 150 thereof that:
“A Court of law or a Tribunal has a legal duty in our adjectival law to hear any Court process, including a motion before it. The process may be downright stupid, unmeritorious or even an abuse of Court process. The Court must hear the party or parties and rule one way or the other. A Judge whether of a Court of law or Tribunal has no jurisdiction to come to a conclusion by resorting to his own wisdom outside established due process that a motion cannot be heard because it has no merit … It is not only essential but mandatory for a Court before which a motion (or application) has been brought to hear and determine it at the appropriate time.” PER JOMBO-OFO, J.C.A.
WHETHER OR NOT THE RULE OF FAIR HEARING IS A TECHNICAL DOCTRINE
More instructive is the long-standing authority of Kotoye vs. Central Bank of Nigeria (1989) 1 NWLR Pt. 98, pg. 448, where our respected Nnaemeka-Agu, JSC., (of blessed memory) stated point blank as follows:
“The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding had, in fact, been given an opportunity of hearing. Once an appellate Court comes to the conclusion that the party entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the order/judgment thus entered is bound to be set aside.” PER JOMBO-OFO, J.C.A.
CORDELIA IFEOMA JOMBO-OFO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the final judgment and interlocutory ruling of the High Court of Justice, Nasarawa State holden in Keffi (hereafter the lower/trial Court) in suit No. NSD/K31/2011 and Motion No. NSD/K13M1/2012, presided over by Hon. Justice Ridwan M. Abdullahi, J., and delivered 26th January, 2012 and 13th February, 2012 respectively. (See pages 63 – 66 and 108 – 114).
The plaintiff at the lower Court who herein is the respondent had sought the following reliefs against the defendants/appellants vide a writ of summons issued 9th June, 2011 in suit No. NSD/K31/2011:
1. A DECLARATION that the plaintiff for and on behalf of Sarkin Noma Madaki’s family is the customary owner entitle (sic) to a statutory right of occupancy over that farmland measuring about 8 hectares lying and situate at Tudu Wada, Karu LGC.
2. A DECLARATION that any purported claim of ownership by the 2nd defendant either by sale or whatsoever means is void ab initio and accordingly set aside.
3. AN ORDER setting aside the purported sale or contract of sale by the 1st defendant to the 2nd defendant in respect of the land measuring about 8 hectares as the land in dispute.
4. A PERPETUAL INJUNCTION restraining the said defendants, their privies, assigns, or whatsoever from further entrance on the land and or doing anything on the land. (See pages 1 – 5 of the record of appeal).
The defendants/applicants by a Motion on Notice No. NSD/K31M/2011 dated 17th July, 2011 and filed 20th July, 2011 prayed the lower Court to strike out Suit No. NSD/K31/2011 for want of jurisdiction. The motion which was brought pursuant to Order 9 Rule 2 (1) and (2) of the Nasarawa State High Court, and was supported by an affidavit of 5 paragraphs deposed to by one Sunday Auta a Litigation Clerk in the Law Firm of Prince Kenny Clet & Co. (See pages 20 – 23 of the record of appeal and 20 – 24 of the supplementary record of appeal).
The plaintiff/respondent opposed the Motion with a 12 paragraphed counter-affidavit sworn to by Na’Allah Bako residing at Tudu Wada, Karu, Nasarawa State. Written addresses were filed and exchanged by the parties. (See pages 25 – 30 of the supplementary record of appeal).
Thereafter and in a considered ruling delivered 26th September, 2011, the learned trial Judge dismissed the application No. NSD/K31M/2011 for lacking merit. (See page 32 of the supplementary record of appeal).
Be that as it may, on 26th January, 2012, the learned trial Judge entered judgment in favour of the plaintiff in Suit No. NSD/K31/2011 as follows:
“In line with the provision of Order 22 Rule 9 (supra) this Court hereby entered judgment in favour of the plaintiff/PW2 and the family of Sarkin Noma Madaki in whose consent the plaintiff filed the suit. All the four reliefs sought in the writ of Summons, statement of claims and witness deposition of the plaintiff/PW2 are therefore granted. (See pages 63 – 66 of the main record of appeal and 36 – 41 of the supplementary record of appeal).”
On 30th January, 2012 the defendants as applicants filed a Motion on Notice seeking the following orders against the plaintiff/respondent:
“An Order of the Honourable Court setting aside the judgment entered for the plaintiff/respondent herein by this Honourable Court on the 26th of January, 2012 in default of appearance and defence of the defendants/applicants.” (See pages69 – 73 of the main record of appeal and 42 – 50 of the supplementary record).
Upon consideration of the foregoing application and the affidavit in support as well as the counter-affidavit in opposition and the applicable laws, the learned trial Judge in his ruling in re: Motion No. NSD/K13M1/2012 delivered 13th February, 2012 ordered as follows:
“In the light of the above, I refuse to exercise my discretion in favour of the applicants and therefore dismissed the application in its entirety with cost of N5,000.00 against the applicants in favour of the respondent.” (See pages 108 – 114 of the main record of appeal and 81 – 87 of the supplementary record).
Aggrieved by the judgment delivered 12th January, 2012 and the ruling of 13th February, 2012, the defendants (as appellants) filed a Notice of Appeal on 21st February, 2012 at the lower Court. Pursuant to the leave of this Court granted them, they further amended the Notice of Appeal and the said Further Amended Notice of Appeal was deemed properly filed on 2nd December, 2021.
While the record of appeal was compiled and transmitted to this Court on 21st March, 2012, the supplementary record was compiled and transmitted 3rd November, 2015.
Pursuant to the leave of Court sought for and obtained on 14th May, 2019, the Court allowed the hearing of this appeal on Amended Appellant’s Brief alone. The said Amended Brief which was filed 23rd May, 2013 and deemed properly filed on 27th May, 2013 was settled by Amuwa Olasoji Olatunde, Esq. In spite of the issuance of hearing notice on Abubakar Kana Obere, Esq. of counsel to the plaintiff/respondent, via tel. nos. 0803 623 4113 against the hearing of the appeal slated for 1st March, 2022, neither the counsel nor the plaintiff/respondent was in Court for the hearing of the appeal. A motion for stay of execution filed 17th August, 2012 and which motion was to abide this judgment was thus struck out on 1st March, 2022.
From the 5 (five) grounds of the Further Amended Notice of Appeal the Appellant formulated the following 3 (three) issues for determination:
i. Whether the learned trial Judge denied appellants’ fair hearing when he delivered his judgment on January 26, 2012 when Motion No. NSD/K31M/2012 was pending thus vitiating the whole process. (Grounds 1, 2 and 3 of the Further Amended Notice of Appeal).
ii. Whether the refusal of the learned trial Judge to allow counsel to the Appellants cross-examine the Respondent and the Appellants to state their defence is not against Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the principle of fair hearing and natural justice. (Grounds 4 and 5 of the Further Amended Notice of Appeal).
iii. Whether the learned trial Judge was not in fundamental breach of ORDER 32 RULES 7, 13, 14 and 15 of the Nasarawa State High Court (Civil Procedure) Rules, 2010 by not allowing the Appellant’s counsel to cross-examine the Respondent and the Appellants to testify after the Respondent closed his case, file written address and adopt same. (Ground?).
ISSUE 1 (ONE)
Whether the learned trial Judge denied appellants’ fair hearing when he delivered his judgment on January 26, 2012 when Motion No. NSD/K31M/2012 was pending thus vitiating the whole process.
Learned counsel for the appellants submit that their right to fair hearing was breached by the learned trial Judge who gave judgment based on the evidence of the respondent’s witnesses alone. He contended that they were not allowed to cross-examine the respondent even though motion was filed praying for the appellant’s counsel to cross-examine and also for the appellants to proffer evidence but the trial Judge refused and proceeded to give judgment in favour of the respondent. Appellants canvassed further that the respondent testified in the absence of the appellants and their counsel and without adjourning for defence and appellants to be heard, the learned trial Judge adjourned for judgment. The appellants promptly filed a motion impressing on the trial Court that appellants’ counsel desired to cross-examine the respondent and also proffer evidence in support of their statement of defence, but the learned trial Judge dismissed the appellants’ motion in breach of their rights to be heard.
The appellants forcefully contended that the judgment of the trial Court and the proceedings thereof are a nullity because the trial Court refused to entertain Motion No. NSD/K31M1/2012, which was duly filed on 20th January, 2012 and which motion was in the Court’s file before it gave judgment of 26th January, 2012 and that this error denied the appellants the right to fair hearing as provided in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 as amended. See Owerri Municipal Council vs. Onuoha (2010) All FWLR Pt. 538, pg. 896 at 918. Learned counsel further submitted that the principle of audi alteram partem, hear the other side, constitutes an injunction which means that no man should be condemned unheard or without having had an opportunity of being heard. Counsel finally urged on us to allow the appeal on this issue.
RESOLUTION OF ISSUE 1
The appellants had filed a motion on 20th January, 2012, which was about 6 (six) days prior to 26th January, 2012 when the vexed judgment in Suit No. NSD/K31/2011 was delivered. The reliefs sought in the Motion with No. NSD/K31M1/2012 are as follows:
i. An order extending the time within which the 2nd Defendant/Applicant can enter his appearance in this case out of time.
ii. An order extending the time within which the 1st and 2nd defendant/applicant (sic) can file their list of witnesses, to be called, list of documents to be relied upon, witnesses’ deposition on oath and statement of defence out of time.
The motion which was brought pursuant to Section 36(1) of the 1999 Constitution and Order 14 Rule 11, Order 22 Rule 12 of the Nasarawa State High Court (Civil Procedure) Rules, 2010, was supported by a 20 paragraphed affidavit sworn to by Babatunde Adekule Seton, residing at New Nyanya in Karu LGA of Nasarawa State. (See pages 37 – 50 of the main record of appeal and 42 – 50 of the supplementary record).
The plaintiff/respondent in opposition to the motion, filed a counter-affidavit of 7 (seven) paragraphs sworn to by Suleiman Rabiu, residing at Sabon Layi, Keffi in Keffi LGC. (See pages 97 – 100 of the record of appeal).
It is pertinent to note the sequence of proceedings of the lower Court up until the 26th January, 2012 when the judgment appealed against was delivered. It is apposite to start from 26th September, 2011 when counsel on both sides were present in Court. At the conclusion of that day’s sitting, the learned trial Judge ended the proceedings without stating the next adjourned date and what it was slated for. The trial Court simply ended the day’s proceedings as follows:
CT: The motion is dismissed for been (sic) unmeritorious which (sic) cost of N5,000.00. (See pages 33 of the main record of appeal and 32 of the supplementary record of appeal).
At the end of proceedings, the next date of adjournment and what the sitting will focus on, are usually specified in the record book and then read out or announced in the open Court. None of these steps was taken by the learned trial Court. Failing that, hearing notices are sent out so as to appraise the parties of the subsequent adjournment. Be that as it may, the trial Court sat again on 12th December, 2011. It turned out that both parties were present in Court with nothing to show how those present managed to know of that day’s sitting. However, while A. O. Kana, Esq., for the plaintiff was present in Court, there was no appearance of counsel for any of the two defendants which is understandable given that there was nothing on record of the lower Court to show that hearing notice was issued to the parties, particularly the counsel for the defendants. It was in this precarious situation that the defendants found themselves when the learned trial Judge erroneously sat and took the evidence of two of the plaintiff’s witnesses i.e. the PW1 and PW2 behind the back of the learned counsel for the defendants. Neither the defendants nor their counsel therefore, had the opportunity to cross-examine the said PW1 and PW2. At the end of taking the evidence of the PW1 and PW2, Mr. Kana of counsel for the plaintiffs made the ensuing application which was granted by the trial Court without hesitation:
KANA: We apply for a date to bring the remaining witnesses and suggest the 19/1/2012 for continuation of hearing.
CT: Case adjourned to 19/1/2012 for continuation of hearing. (See pages 33 – 34 of the supplementary record of appeal).
Again, there was no order by the lower Court for hearing notice to be served on learned counsel for the defendants bearing in mind that he was not present in Court due to no fault of his.
On the 19th January, 2012 as adjourned and with the appearance of the plaintiff and his counsel alone, the learned trial Judge in the same manner continued with the hearing of the plaintiff’s witnesses without taking into account the absence of the defendants and or their counsel from Court. It is pertinent to bring to the fore the following communication which transpired between learned counsel, Mr. Kana for the plaintiff and the learned lower Court.
KANA: The case is for continuation of hearing and we have two last witnesses in Court. The 2nd defendant and the defence counsel were around but left the Court quietly. We are ready to proceed with the last two witnesses.
CT: Since the case is for continuation of hearing and the defendants have not shown the desire to defend, the case is to proceed. (See pages 34 – 35 of the supplementary record of appeal).
It seems to me that in this whole scenario anything the learned counsel for the plaintiff asked of the lower Court became law and true, leaving the trial Court with no need for verification and reasoning. Learned counsel quipped to the trial Court that the defendants and their counsel were in Court but stealthily left the way they came, and that was all that the trial Court needed to continue with hearing the case, even where there was again nothing to show that hearing notice was issued to the said defendants and or their counsel. I dare state that Courts are not expected to swallow hook, line and sinker any information coming from learned counsel without verification. The trial Court to my mind allowed itself to be led by counsel for the plaintiff, hence it never felt the need to substantiate information coming from the said counsel. It followed the tune of the learned counsel for the plaintiff to the effect that the defendants have not shown interest in the defence of their case, when in actual fact it was the trial Court that failed to provide an equal or level playing ground for both parties. While it raised the bar for one party it lowered it for the other.
Back to the proceedings of 19th January, 2012. Hearing continued with the taking of the last witness (PW3) who was again not cross-examined, just like the PW1 and 2 before him. The proceeding for that day was rounded off as follows:
KAN: That’s all and (sic) decided to abandoned (sic) the other witness, that is the case of the plaintiff and subject to Order 22 Rules 9 of the High Court (Civil Procedure) Rules, 2010 urge the Court to enter judgment in favour of the plaintiff against the defendants.
CT: Case adjourned to 26/1/2012 for judgment. [Underlining mine for emphasis. (See pages 34 – 35 of the supplementary record of appeal).]
To finish with the case of the plaintiff and adjourn straight away for judgment without making provision for defence to open its case or whatever, is determinable pursuant to the provisions of Order 22 Rule 9 of the High Court (Civil Procedure) Rules, 2010 which stipulates as that:
“In all actions other than those in the preceding Rules of this order, if the defendant makes default in filing a defence, the plaintiff may apply to a Judge for judgment, and such judgment shall be given upon the statement of claim as the Judge shall consider the plaintiff to be entitled to.”
This is to say that where the defendant has defaulted in filing their defence, the plaintiff may apply to the Judge for judgment. Now, given the circumstances of the instant case, can it be said that the defendants were availed the opportunity to file their statement of defence and they failed to utilize same. I do not think so. This is because as I noted earlier, the defendants filed their Motion No. NSD/K31M1/2012 wherein they sought for extended time to file their statement of defence, amongst other processes on 20th January, 2012 which was 6 (six) days to the day the judgment was slated for delivery. Despite the filing of counter-affidavit in opposition to the motion, yet the motion was never placed before the trial Court for determination. This is because of the antics of the clerk of the trial Court, who purportedly failed to place the motion before the learned trial Judge on the cranky excuse that he/she detected some typographical errors on the face of the motion paper. Granted that there were indeed typographical errors on the face of the motion paper, that does not give a clerk of Court the standing to tamper with the process or even to keep it away from the trial Judge. A lot must be happening in the trial Judge’s Court for his clerk to have the impetus to meddle with the processes of Court. I wonder who taught the clerk what process to place before the Court and the ones to keep away from the Court. I would hate to think that the clerk’s meddlesomeness with Court’s processes, enjoy the blessing of the learned trial Judge. If this is the modus operandi of the clerk of the lower Court, then it is illegal and condemnable and the trial Judge has got to be wary and watchful of the said clerk of Court. Dubious characters of the likes of the clerk of the trial Court ought not to be retained in the system.
All said and done, I am satisfied that the motion in view which was filed timeously on 20th January, 2012 i.e. 6 days to the delivery of the vexed judgment, was deliberately kept away from the Court’s file in order to forestall its being heard at all. In the authority of Newswatch Communications Ltd vs. Atta (1999) LPELR-6717(CA) per Musdapher, JCA (Pp. 19-20, paras. B-E) where he held inter alia:
“I have, as mentioned above recounted in great details the conduct of the appellant throughout the trial before the lower Court. In my view, the application to “arrest” the judgment after all the opportunities granted to the appellant which it deliberately refused to take was merely calculated to hinder the due administration of justice. From the records available, the appellant always claimed that they would settle the matter out of Court when indeed they merely wanted to delay the due administration of justice. The procedure for arrest of judgment is now hardly known in our Civil jurisprudential system. … The application made to arrest the judgment is accordingly misconceived both in law and in fact. The appellant had been given ample opportunity to defend the claims made against them and also to prosecute their counter-claim. The appellants merely refused to use the opportunity given them. Under the circumstances, the learned trial judge was fully justified to have (1) closed the defence and (2) concluded that the appellants had no evidence to offer on their pleadings.”
Unlike the foregoing authority the defendants/appellants in the instant scenario were deliberately shut out from enjoying their right to fair hearing as provided under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Firstly, the defendants/appellants were not issued with hearing notices, more especially on the days the PW1, PW2 and PW3 testified in Court, consequent upon which they were denied the opportunity to have the witnesses cross-examined. Secondly, the motion filed 20th January, 2012 wherein they sought to enter appearance and also to enable them file their statement of defence et al, was surreptitiously kept away from the learned trial Judge hence it was never heard. Had the clerk of Court placed the motion paper before the learned trial Judge before the date or even on the date slated for delivery of the judgment, the lower Court would have heard and taken a decision over it one way or the other. Then would the coast have cleared for the lower Court to proceed and deliver judgment?
The learned trial Judge obviously committed an error of law when he overlooked the pending Motion on Notice No NSD/K31M1/2012 filed by the defendants/appellants 20th January, 2012 and then proceeded to hear and determine the plaintiff/respondent’s suit no. NSD/K31/2011. This is in the face of the settled law that, where a motion is filed in connection with a matter pending before a Court, the Court is duty bound to hear and rule on such application, no matter how irregular or frivolous it may appear, before deciding on the substantive suit. A failure to do so would amount to a breach of the applicant’s right to fair hearing. See the cases of Mobil Producing Unlimited vs. Monokpo (2003) 18 NWLR (Pt. 852) 346 at 413, Onyekwuluje vs. Animashaun (1996) 3 NWLR (Pt. 439) 637 at 644, Nalsa & Team Associates vs. NNPC (1991) 8 NWLR Pt. 212, pg. 652 at 676, Magna Maritime Services Ltd vs. Otesu (2005) All FWLR Pt. 270, pg. 1995 at 2012 and United Parcel Service Ltd vs. Prince Obot Ufot (2006) 2 NWLR Pt. 963, pg. 1, where Omokri, JCA., had this to say:
“It is the bounden duty of a Court to hear and determine all applications pending before it before making a final pronouncement by way of delivery of judgment. This is so even where a Statement of Defence was irregularly filed. The Court in the interest of justice is bound to examine it to see if it discloses adefence on the merit. See A-G., Federation vs. Ajayi (2000) 12 NWLR Pt. 11, pg. 89.”
Also, in the authority of H.S.H.M.C. Ltd. vs. Sahyra Nig. Ltd. (2008) All FWLR Pt. 397, pg. 132, this Court further reiterated at pg. 150 thereof that:
“A Court of law or a Tribunal has a legal duty in our adjectival law to hear any Court process, including a motion before it. The process may be downright stupid, unmeritorious or even an abuse of Court process. The Court must hear the party or parties and rule one way or the other. A Judge whether of a Court of law or Tribunal has no jurisdiction to come to a conclusion by resorting to his own wisdom outside established due process that a motion cannot be heard because it has no merit … It is not only essential but mandatory for a Court before which a motion (or application) has been brought to hear and determine it at the appropriate time.”
More instructive is the long-standing authority of Kotoye vs. Central Bank of Nigeria (1989) 1 NWLR Pt. 98, pg. 448, where our respected Nnaemeka-Agu, JSC., (of blessed memory) stated point blank as follows:
“The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding had, in fact, been given an opportunity of hearing. Once an appellate Court comes to the conclusion that the party entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the order/judgment thus entered is bound to be set aside.”
By reason of the foregoing authorities, it does appear to me and I so hold that by not giving consideration to the said Motion on Notice filed 20th January, 2012 and pending as at 26th January, 2012 when the offensive ruling and judgment were delivered, the trial Court thereby denied the said defendants/appellants their right to fair hearing. The learned trial Court ought to have ruled one way or the other on the defendants/appellants’ Motion on Notice before the delivery of the judgment if the need remained. I therefore in the circumstances resolve this all encompassing issue 1 (one) in favour of the defendants/appellants and against the plaintiff/respondent.
ISSUE 2 (TWO) AND ISSUE 3 (THREE) MERGED AND DETERMINED TOGETHER
Whether the refusal of the learned trial Judge to allow counsel to the Appellants cross-examine the Respondent and the Appellants to state their defence is not against Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the principle of fair hearing and natural justice.
AND
Whether the learned trial Judge was not in fundamental breach of ORDER 32 RULES 7, 13, 14 and 15 of the Nasarawa State High Court (Civil Procedure) Rules, 2010 by not allowing the Appellant’s counsel to cross-examine the Respondent and the Appellants to testify after the Respondent closed his case, file written address and adopt same.
The above 2 issues are subsumed and overtaken by my findings in issue 1 (one). They have therefore become moot and spent. The resultant effect is that the appeal is cloaked with merit and therefore succeeds. Consequently, the decision of the High Court of Justice, Nasarawa State sitting in Keffi, presided over by Hon. Justice Ridwan Maiwada Abdullahi, J., in Suit No. NSD/K31/2012 delivered 26th January, 2012 and the ruling in Motion No. NSD/K13M1/2012 delivered 13th February, 2012 respectively, are hereby set aside for being a nullity.
To this end, the case file shall be transmitted back to the lower Court for re-hearing and determination by a Judge other than Hon. Justice Ridwan Maiwada Abdullahi, J.
Appeal succeeds.
IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity of reading the draft judgment of my learned brother, Hon. Justice C. Ifeoma Jombo-Ofo, JCA, I have nothing to add to the well researched judgment which I adopt as mine.
The resultant effect is that the appeal is imbued with merit and therefore succeeds.
MUSLIM SULE HASSAN, J.C.A.: I have had the benefit of reading in draft the leading judgment of my learned brother, CORDELIA IFEOMA JOMBO-OFO, JCA, which has just been delivered. I agree with my Lord that the appeal is meritorious and is hereby allowed.
It is pertinent to note that from the available evidence, the learned trial judge deliberately shut out the Defendants/Appellants without affording them opportunity to make representation and defend themselves, there was no evidence from the records that hearing notices were issue to the Defendants/Appellants on the days PW1, PW2 and PW3 gave evidence in Court, they were denied the opportunity to cross-examine these witnesses.
The trite position of the law is that where there is a breach of fair hearing, the hearing or proceedings will be set aside. The Supreme Court in OYEYEMI V. COMMISSIONER FOR LOCAL GOVERNMENT, KWARA STATE & ORS (1992) 2 NWLR (Pt. 226) Page 661 at 678 paragraphs C-F Per Nnaemeka-Agu, JSC (as he then was) stated:
“This principle, which obliges us to hear a man before his right or interest can be taken away in any judicial or quasi-judicial proceedings or even in purely administrative proceedings in which the right of the person is to be taken away or his interest interfered with, has been reiterated in numerous cases. See for example Copper v. Wandsworth Board of Works, 14 C.B.N.S. 180 at 194 also Broadbent v. Rotherham Corporation (1917) 2 Ch. 31.”
Indeed God heard Adam before he found him guilty and sentenced him. This principle, often expressed by the Latin Maxim: audi alteram partem (hear the other side) is applicable in all cases in which a decision is to be taken in any matter involving a person’s interest in a property, right or personal liberty, it has been applied in numerous Nigeria cases, and even includes all those cases which for want of appropriate explanation are explained away by the well- known judicial acronym exdibito justitia. See for these Deduwa & Ors v. Okorodudu & Ors (1976) 10 SC 329 at 347, Adigun & Ors v. Attorney-General of Oyo State (1987) 1 NWLR (Pt. 53) 678 and so many other cases.”
The effect of breach of the rule of audi alteram partem or of fair hearing is to render the hearing liable to be set aside or declared invalid by the Court. The Court will look at the situation as if such a hearing never in fact took place. The issues in litigation will be set back to the situation before the decision was taken. See OYEYEMI v. COMMISSIONER FOR LOCAL GOVERNMENT, KWARA STATE & ORS (Supra) at page 685 paragraphs A-B.
In the light of the above and the more comprehensive reasons set out in the lead judgment, I too allow the appeal and order that the case file be remitted back to the Chief Judge of Nasawara State for assignment to another Judge for re-hearing.
Appearances:
Amuwa Olatunde, Esq., with him, Mrs. Faith Odeh and Comfort Ogbodo, Esq. For Appellant(s)
Abubakar Kana Obere, Esq. was intimated of the hearing of the appeal via tel. nos. 0803 623 4113, but he failed to put up appearance at the hearing. For Respondent(s)
