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GANA v. BIDA EMIRATE COUNCIL & ORS (2020)

GANA v. BIDA EMIRATE COUNCIL & ORS

(2020)LCN/14300(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, June 19, 2020

CA/A/68/2017

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

ALHAJI MUHAMMADU KPANJA GANA (The Etsu Dazhi Doko) APPELANT(S)

And

  1. BIDA EMIRATE COUNCIL 2. DOKO TRADITIONAL COUNCIL 3. EXECUTIVE GOVERNOR OF NIGER STATE 4. ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, NIGER STATE 5. LOCAL GOVERNMENT SERVICE COMMISSION (NIGER STATE) 6. MOHAMMED SANTILI DAZHI RESPONDENT(S)

RATIO

THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING

Fair hearing generally connotes the observance of the twin pillar rules of Natural justice, the apex Court in ARIJE V ARIJE (2018) LPELR-44193(SC) held thus:
“Now the right to fair hearing is one of the fundamental rights guaranteed in Chapter IV of the 1999 Constitution. See Section 36 (1) thereof. It is one of the twin pillars of natural justice which support the Rule of Law. The pillars are an indispensable part of the process of adjudication in any civilized society. They are: audi alteram partem (hear the other side i.e. one must be heard in his own defence before being condemned) and nemo judex in causa sua (no one may be a judge in his own cause). See: R Vs. Rand (1866) LR Q.B. 230; Ndukauba Vs Kolomo & Anor. (2005) 4 NWLR (PT.915) 411; Ikomi Vs The State (1986) 5 SC 313; Akpamgbo Okadigbo Vs Chidi (2015) LPELR-24564 (SC) 1 @ 39 E – F. The concept of fair hearing encompasses not only the principle of natural justice in the narrow technical sense just referred to, but in the wider sense of what is right and fair to all concerned and is seen to be so. See: Unibiz Nig. Ltd. Vs Commercial Bank Credit Lyonnais Ltd. (2003) 6 NWLR (Pt.816) 402. Fair hearing requires that the trial must be conducted according to all applicable legal rules with a view to ensuring that justice is done to all parties before the Court. The law is trite that any proceedings conducted in breach of the right to fair hearing are a nullity and liable to be set aside. See: Ariori Vs Elemo (1983) 1 SC 81; Kotoye Vs C.B.N (1989) 1 NWLR (Pt.98) 419. It is equally trite that where the principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same, the proceedings would still be null and void. See: Salu vs. Egeibon (1994) 6 NWLR (Pt. 348) 23; Adigun vs. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678; Bamgboye vs University of Ilorin (1999) 10 NWLR (Pt. 622) 290. All the authorities referred to above underpin the importance attached to the observance of the principles of natural justice in any adjudication. Per KEKERE-EKUN, J.S.C. PER NIMPAR, J.C.A.

WHETHER OR NOT ADMINISTRATIVE OR QUASI JUDICIAL INVESTIGATIVE BODIES MUST OBSERVE FAIR HEARING RULES

It is trite that administrative or quasi judicial investigative bodies must observed fair hearing rules; see GYANG & ANOR V COP LAGOS STATE & ORS (2013) LPELR-21893(SC) which held:
“It has long been settled in a line of cases decided by this Court that administrative bodies or tribunals, acting judicially in the determination or imposition of a decision that is likely to affect the civil rights and obligations of a person, are bound and enjoined to strictly observe the principles of fair hearing. See R v. ELECTRICITY JOINT COMMISSION (1968) NMLR 102: ADEYEMI v. ATTORNEY-GENERAL FEDERATION (1984) 1 SCNLR p. 525: ADIGUN v. ATTORNEY-GENERAL OYO STATE & 18 ORS (1987) 1 NWLR (Pt.53) 682; OYEYEMI V. COM. FOR LOCAL GOVERNMENT (1992) 2 NWLR (pt.226) 661 at 67; AKIBU v. ODUNTAN (2000) 13 NWLR (pt.685) p.446; STATE v. AJIE (2000) 11 NWLR (pt.678) 434 and AKANDE v. NIGERIAN ARMY (2001) 8 NWLR (pt.714) P.1. This principle often expressed by the Latin Maxim “AUDI ALTERAM PARTEM” MEANING “HEAR THE OTHER SIDE,” HAS BEEN FOR LONG ENSHRINED IN OUR JURISPRUDENCE.” PER NIMPAR, J.C.A.

WHETHER OR NOT BREACH OF FAIR HEARING NULLIFIES A JUDGEMENT

In some cases, where there is a breach of fair hearing which consequently nullifies the Judgment. See A.G. LEVENTIS (NIG) PLC V AKPU (2007) LPELR-5 (SC) which held:
“…it is firmly settled that it is the duty of all lower Courts to consider all issues placed before it except in the clearest cases. In the case of Owodunni v. Registered Trustees of Celestial Church of Christ & 3 Ors. (2006) 6 S.C. (Pt. II) 60; (2000) 6 SCNJ (299 at 426-427, this Court- per Ogundare, JSC., (of blessed memory) stated that this Court has frowned, in a number of cases, at the failure of lower Courts, to decide all issues placed before them. That unless in the clearest of cases, an intermediate Court should endeavour to resolve all issues put before it. His Lordship referred to the cases of Odunayo v. The State (1972) 8-9 S.C. (Reprint) 173; (1972) 8-9 S.C. 290 at 296- per Sowemimo, JSC., (as he then was and of blessed memory) and Ifeanyi-Chukwu (Osondu) Ltd. v. Soleh Boneh Ltd. (2000) 3 S.C. 42; (2000) 5 NWLR 322 at 351 which is also reported in (2000) 3 SCNJ 18.” PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the Niger State High Court delivered on the 15th December, 2016 by Hon. Justice Musa Baba Abdul in suit NO. NSHC/BD/16/2013, the trial Court below dismissed the suit of the Appellant; and affirmed the dismissal/termination of the Appellant’s appointment as village head and Etsu- Dazhi of Doko town. Dissatisfied with the decision, the Appellant filed a Notice of Appeal on the 23rd January, 2017 setting out 11 grounds of Appeal.

​Facts giving rise to this Appeal are amenable to brief summary. The Appellant was the Village head of Doko, the Etsu- Dazhi of Doko, problems arose in his relationship with his subjects and the elders of the town sent a petition to Bida Emirate Council, it set up a committee to investigate the allegations. Thereafter, a committee was set up by the Government to investigate the allegations against the Appellant. The Bida Emirate committee in the course of its investigations took testimonies from witnesses and one of such was the Chief Judge of Niger State which the Appellant alleges testified behind his back and was not

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given an opportunity to cross-examine him amongst other allegations. The report of the committee was accepted and acted upon which led to Appellant’s dismissal. The Appellant dissatisfied instituted the suit leading to this Appeal.

The Appellant’s brief settled by T. E. MOSUGU ESQ., is dated 17th day of February, 2020 and filed 18/2/2020 but deemed on the 23.3.2020; it donated 5 issues for determination as follows:
a. Whether the learned trial Judge had properly evaluated the evidence adduced by the parties in this case. (Grounds 5 and 6)
b. Whether, there has been a denial or a breach of fair hearing guaranteed to the plaintiff/appellant by the provision of Section 36(1) Constitution of the Federal Republic of Nigeria 1999 as amended. (Ground 1)
c. Whether from the facts and circumstances of this case and having regards to the provisions of Section 80(1) and Section 132(1) of the Local Government Law of Niger State 2001, the 1st Respondent had power to remove/dismiss the Appellant as the Etsu-Dahi and village head of Doko without the approval of the 3rd Respondent being first had and obtained. (Ground 2, 3, 9 and 10).

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  1. Whether the Appellant had established his claim on preponderance of evidence. (Grounds 7, 8 & 11).
    e. Whether the appointment of the Appellant (as distinct from the recommendation for the appointment), qualified the Plaintiff as civil servant governed by civil service rule/staff regulations in matters of dismissal/termination of appointment. (Grounds 4)

The First Respondent’s Brief settled by ANIETIE U. J. UDOH ESQ., it is dated 23rd March, 2017 and filed on the 23rd May, 2017 but deemed 23/3/2020. It formulated 3 issues for determination as follows:
a. Whether having regard to the facts of this case, the lower Court was correct to hold that the Appellants right to fair hearing was not breached in the process of his removal/dismissal as the village head of Doko. (Ground 1).
b. Whether the lower Court was correct to hold that the Appellants removal/dismissal as the village head of Doko was proper and in accordance with the laid down procedure. (Ground 2,3,4,9 & 10).
c. Whether having regard to the entire circumstance of this case, the lower Court was correct to hold that the Appellant was entitled to relief he sought in

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this case. (Grounds 5, 6, 7, 8 & 11).

The 3rd and 4th Respondents’ Joint Brief settled by ADAMU MOH’D PANTI ESQ., Solicitor General, MOJ, NIGER STATE, is dated 20th November, 2017 filed on the same day but deemed on the 23/3/2020, it donated 3 issues for determination thus:
a. Whether having regard to the facts of this case, the lower Court was correct to hold that the Appellants right to fair hearing was not breached in the process of his removal/dismissal as the Village Head of Doko. (Ground 1).
b. Whether the lower Court was correct to hold that the Appellants removal/dismissal as the Village Head of Doko was proper and in accordance with the laid down procedure. (Ground 2, 3, 4, 9 and 10).
c. Whether having regard to the entire circumstance of this case, the lower Court was correct to hold that the Appellant was not entitled to the reliefs he sought in this case.

The 5th and 6th Respondents also filed a joint Brief settled by J. J. USMAN ESQ., it is dated 15th day of August, 2017 and deemed 23/3/2020. It distilled 4 issues for determination thus:
a. Whether the Appellant’s fundamental right to fair

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hearing in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) was breached. (Ground 1).
b. Whether the learned Trial Judge was right when his lordship held that the Appellant’s removal/dismissal as the Etsu-Dazhi/village Head of Doko was proper. (Grounds 2, 3, 9 & 10).
c. Whether the learned trial Judge was right when his lordship held that the Appellant was not entitled to the reliefs sought. (Grounds 5, 6, 7, 8 & 11).
d. Whether the Appellant was a staff of the local government whose appointment, discipline and removal is subject to Civil Service Rules/Staff regulations. (Grounds 4)

The Appellant also filed a Reply Brief to the Respondents’ Briefs dated 18th February, 2020, filed same day but deemed on the 23/3/2020.

PRELIMINARY OBJECTION
The 5th and 6th Respondents filed a Notice of Preliminary Objection on the 15/8/17. It gave notice to raise an objection on the following ground:
“TAKE NOTICE that the grounds of the objection are that:
The Honourable Court lacks the jurisdiction to entertain, hear and determination this appeal having regard to the

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Appellant’s failure to file amended writ of Summons and Statement of claim which itself divested the trial Court of its jurisdiction, thereby rendering the entire proceedings a nullity.”

As required by the Rules of Court, the Preliminary Objection must be resolved before any step can be taken in the Appeal. This is informed by the essence of a Preliminary Objection which seeks to terminate the Appeal in limine, see the apex Court’s decision in the case of STATE V KAPINE & ANOR (2019) LPELR- 49511(SC) wherein the apex Court said:
“It is incumbent to consider and determine respondent’s preliminary objection to the competence of the appeal first. The essence of the preliminary objection is, if made out, to foreclose the hearing of the appeal and save the valuable time of the parties and indeed the Court. The resolution of the preliminary objection, therefore, will determine whether or not the appeal will be determined on the merit. To otherwise proceed on an incompetent appeal is to embark on a fruitless exercise since, without the necessary jurisdiction of considering the appeal, the Court’s eventual decision on same, no matter

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how well conducted the proceedings are, is ab initio null and void. See GABRIEL JIM JAJA V. COMMISSIONER OF POLICE, RIVERS STATE & ORS (2012) LPELR – 20621 (SC); and GENERAL MOHAMMED A. GARBA (RTD) V. MUSTAPHA SANI MOHAMMED & ORS (2016) LPELR – 40612 (SC).” Per MUHAMMAD, J.S.C.

It is even more imperative here to first resolve the Preliminary Objection because it borders on jurisdiction which is very important to any adjudication.

5th & 6th RESPONDENTS’ SUBMISSION ON THE PRELIMINARY OBJECTION
The 5th and 6th Respondents proffered arguments in support of the preliminary and is found at pages 5-7 of the 5th and 6th Respondents’ Brief. They also distilled a sole issue for determination under the Preliminary Objection. It states thus:
Whether the lower Court had the jurisdiction to entertain, hear and determine the suit having agreed to the Appellant’s failure to file amend Writ of Summons and statement of claim.

The Respondents state that jurisdiction of Court is a crucial question of competence which is extrinsic to the adjudication on the merits. The law on this point has been graphically captured in the

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dictum of Bairamian, FJ in leading of MADUKOLU V. NKEMDILIM (1962) N.S.C.C VOL 2 Page 374 at 379 and 380. The Respondents submitted that the second and third limbs of the factors in determining jurisdiction are relevant in the consideration of this issue. They contended that the Honourable Court is divested of its jurisdiction to entertain, hear and determine this matter.

They argued that the provision of Order 13 Rule 18 of the High Court of Niger State (Civil Procedure) Rules 2012, post amendment compliance is not discretionary but mandatory after leave is granted to amend Originating processes as was done here on the 18th December, 2013 along an order to amend the processes (therefore the filling an amended Writ of Summons and statement of claim became compulsory). Where a party is granted leave to amend and he refuses to comply with the law on amendment, the purported amended Writ of Summons and statement of claim becomes a nullity, citing UNION BANK OF NIG. PLC V. NWUCHE (2007) ALL FWLR (PT. 383) 179 AT 188. The 5th & 6th Respondents argued that failure to file an amended process meant there was no valid writ of summons and Statement of Claim

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before the trial Court thereby divesting the trial Court of jurisdiction.

APPELLANT’S REPLY TO PRELIMINARY OBJECTION
The Appellant states that Counsel to the 1st, 2nd, 5th & 6th Respondent explicitly and or implicitly raised the Preliminary Objection to the competence of the Appellant’s suit without basis and therefore misconceived. He submitted that there was an amended Statement of claim as referred to by learned counsel to the 5th and 6th Respondents at paragraph 2.19 of the 5th and 6th Respondents’ brief. He went on to argue that counsel to the first Respondent’s paragraph 1.03 is totally incorrect. He referred to Ground 1(iv)-(v) of the Record of Appeal. The committee in its report and in the evidence of its chairman did not advise/recommend the dismissal of Appellant, because the Bida Emirate Council did things outside the rules and that action was wrong.

​Secondly, the Counsel to the 5th and 6th Respondents’ entire argument on the Preliminary Objection, as well as the Counsel to the 1st Respondents submissions/objection and Mr. Panti’s (the Director of Civil Litigation) in paragraphs 1.8 – 1.12

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of the latter’s brief were both being blatantly disingenuous in their flat denials that there was no amended statement of claim.

RESOLUTION OF PRELIMINARY OBJECTION
The objection is fundamentally a challenge to the jurisdiction of the Court below to hear and determine the claim contending that there was no amended statement of claim before the Court and consequently, the suit was not initiated by due process. The Appellant disagreed.

Jurisdiction is very important to any adjudication and this is settled by a plethora of authorities, I will cite just one of the numerous authorities, see GARBA V MOHAMMED & ORS (2016) LPELR-40612(SC) wherein KEKERE-EKUN, JSC said:
“There is no doubt that the issue of jurisdiction is fundamental to adjudication. It is the blood that gives life to the Court and enables it exercise its powers as conferred by the law establishing it. Without jurisdiction the proceedings and any decision reached therein is null and void ab initio. See: Kalio v. Daniel (1975) 2 SC 15; AG Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) 552 @ 567; Oloriode v. Oyebi (1984) 1 SCNLR 390; Madukolu v. Nkemdilim (1962) 2 SCNLR

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  1. This underscores the importance of the issue under consideration.”
    Lack of jurisdiction nullifies everything done in the proceedings conducted without jurisdiction. It is important therefore for any Court to be sure it has jurisdiction before proceeding with the trial. The contention of the 5th and 6th Respondents touch on amended processes. The 5th and 6th Respondent argued that the suit was fought on the assumption that there was an amended statement of claim when in fact there was none.

From the Record of Appeal, the Appellant by motion on Notice sought to amend the originating process and attached a proposed Amended Writ of Summons and a proposed amended statement of claim. The amended writ of summons was duly signed by the trial Judge, see pages 497 of the Record of Appeal. However, there is nowhere in the Record of Appeal where the amended statement of claim was filed. What was attached to the Motion on Notice is the proposed amended Statement of claim. A proposed process is certainly not the process, the word proposed as defined by Dictionary. Com states thus:
1. “To offer or suggest for consideration, acceptance or action or

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to suggest.”

​From the definition of proposed, the process bearing such title is what it is, a proposal and furthermore, it is usually attached to the affidavit supporting the motion for amendment. An amended statement of claim will read just that and a diligent counsel would normally state on the face of such amended process the date the order was made. These days, counsel would file a clean copy and seek to deem it upon the grant of the application for amendment and it is certainly irregular to deem a proposed process. The trial Court indeed deemed the proposed amended statement of claim as duly filed. In fact, the proposed amended statement of claim bears the necessary endorsement required to be on an amended process. The Appellant did not file a clean copy of the Amended statement of claim. However, in view of the existence of a valid statement of claim accompanying the original Writ of Summons, that activated the jurisdiction of the Court and having so activated, the amendment will be governed by procedural jurisdiction of the Court and not substantive jurisdiction. The situation was not as the 5th and 6th Respondents posited that there was no

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statement of claim before the trial Court.

Generally, when a trial Court grants leave to amend a process and the party fails to file the amended process or seek for extension of time to file, the original process remains the extant process. The order made will merely lapse and can only be acted upon with extension of time. There is no compulsion to file the amended process; the party is free to have a change of heart. Does it affect the jurisdiction of the Court? The answer is in the negative, the suit was commenced by competent processes and therefore the jurisdiction of the Court was properly ignited and kept burning, see AKWA IBOM STATE WATER CORPORATION & ANOR V NNAN (2019) LPELR-47352(CA) where the distinction between substantive jurisdiction and procedural jurisdiction and its effect on jurisdiction thus:
“Clearly therefore, the Amended Writ of Summons contained on pages 52 – 53 of the Record of Appeal is invalid and constitutes an irregular process. The next question in relation to Appellants Issue One is whether the irregularity in the filing of the said Amended Writ of Summons goes to the jurisdiction of the Court as to render

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the proceedings conducted in the Court below in the case on appeal a nullity. The simple answer to the above enquiry is in the negative. This is because the valid writ of summons of the Respondent filed on 7/12/2001 sufficiently ignited the jurisdiction of the Court below to hear the case on appeal. And the “fire of ignition” cannot be obstructed by an irregularly filed Amended Writ of Summons. Put in another way, when there is a valid writ of summons as in the instant case, a defective and/or irregular Amended Writ of Summons cannot go to the jurisdiction of the Court to try the case. Indeed, one might say that the valid writ of summons satisfies the requirement of substantive jurisdiction while the defective Amended Writ of Summons only relates to procedural jurisdiction which can and indeed in this case has been cured by the participation of the parties in the proceedings and having not been timeously raised until appeal could not affect the conduct and conclusion of the proceedings. The Supreme Court again pronounced on the distinction between substantive jurisdiction and procedural jurisdiction in the case of HERITAGE BANK LTD. V BENTWORTH FIN. (NIG.) LTD.

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[2018] 9 NWLR [PT. 1625] 420 @ 434. The facts of the HERITAGE BANK LTD. case [supra], particularly in relation to the distinction between substantive and procedural jurisdiction are that in spite of the fact that the statement of claim was allegedly not signed by a known legally qualified Legal Practitioner, but a firm of Legal Practitioners, the appellant, as the defendant, condoned the defective process. They joined issues and participated in the proceedings until judgment was delivered. In these circumstances, Eko, JSC, who read the lead judgment of the Supreme Court explained that jurisdictional defect that renders the adjudication incompetent ultra null and void is the substantive jurisdiction because such jurisdictional issue is extrinsic to the adjudication. MADUKOLU V NKEMDILIM [1962] 2 SCMLR 341. That when want of substantive jurisdiction is raised, the issue is whether the jurisdiction vested statutorily in the Court below allows it to adjudicate on the matter. That is why it is extrinsic. That when, however the issue is whether a process filed in the course of the proceeding or adjudication is an irregular process having not being issued or

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filed in accordance with the prescribed practice, the issue raised is whether the process can be countenanced and not whether the Court can ordinarily and competently assume jurisdiction, and adjudicate in the matter in the first place. Still on page 434, the learned Supreme Court Justice continued: In most cases, procedural jurisdiction is secondary to the substantive jurisdiction, the distinction between the two lies in the fact when procedural jurisdiction can be waived, substantive jurisdiction cannot be waived … See also A-G, KWARA STATE & ANOR V. ALHAJI SAKA ADEYEMO & ORS. [2016] 7 SC [PT. 11] P. 149; [2017] 1 NWLR [PT. 1546] 210 @ 239 – 240; ARIORI V ELEMO [1983] 1 SC 13 [1983] 1 SCNLR 1. In the instant case, the cases of UDOEBOI V UDOUSUA [2017] 5 NWLR [PT. 1559] 501 @ 503; KEYSTONE BANK LTD. V J.O.A. & S (NIG.) LTD. [2015] 1 NWLR [PT. 1439] 98.” Per OWOADE, J.C.A
Flowing from above, the fact that an amended statement of claim was not filed pursuant to the order of Court cannot oust the jurisdiction of the Court. Going by the Court’s decision in Heritage Bank supra, the proposed amended statement of claim which the Court

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erroneously deemed was not objected to timeously, it therefore became an irregularity that was waived by the Respondents. The 5th and 6th Respondents joined issues with the Appellant and went through trial on the said proposed statement of claim. Judgment was handed down on it without any complaint until this stage. The objection is therefore unmeritorious and not made out. It is hereby dismissed.

MAIN APPEAL
There are a total of about 13 issues donated by all the parties and they basically seek answers to similar question which are only couched differently. The substances of all the issues donated by the Respondents are identical. The Court shall adopt the issues formulated by the Appellant who initiated the appeal so that all his areas of complaint shall be addressed. In doing so I shall start with issue 2 which alleges breach of fair hearing; being a fundamental issue with constitutional significance and which could nullify the proceedings, it is necessary to resolve it at the onset before taking any further step.

APPELLANT’S SUBMISSIONS
ISSUE 2
The Appellant begins by asking if he was given fair hearing and did the

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Respondents (especially 1st & 3rd Respondent) violate the applicable laws and rules in purporting to remove or dismiss the Appellant? The Appellant answers in the negative, and the second part in the affirmative.

The document that allegedly nailed the Appellant in the course of his tribulation, predicament or trial is Exhibit B2, entitled report of the committee set-up by Bida Emirate Council to investigate the petitions written against ETSU-DAZHI DOKO, ALHAJI MUHAMMADE DAZHI GANA BY the Elites of Doko in Doko District of Laun Local Government Area of Niger State. The Appellant submitted that the learned trial Judge was wrong in his judgment, when he held that the Appellants’ right to fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria (as amended) has not been breached by the Respondents. A person whose right and interest are likely to be affected by a decision must be heard before a decision is taken, relied on ECOCONSULT LTD V. PANCHO VILLA LTD (2000) 3 NWLR (pt 647) 141 at 141-149.

​The Appellant states that they were not given opportunity to cross-examine the witness whose statement was contained in

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paragraph 44 of the committees report which was titled “statement of ALHAJI MUHAMADU LIMAN, MAGAJI GARIN NUPE”. The Appellant submitted that they were not given opportunity to confirm or deny several allegations against him nor to cross-examine on them.

The Appellant alleged a judicial factor in the denial of the fair hearing and state that the two Judges played crucial roles in him being sacked. The Appellant submitted that from Exhibit B2, Exhibit 1, and Court Judges very active roles in the prosecution/persecution of the Appellant before the investigation or inquisitorial committee set-up by the Bida Emirate Council played up sharply.

​The Appellant further states that the trial Judge in his Judgment emphasized the fact that the Appellant was invited to appear before the committee but the Judge was ominously silent on the secret testimony of the Chief Judge of Niger State. The Judge was also silent on the under-current of animosity which the chief Judge held against the Appellant. The Appellant submitted that the Appellant even in his tearful eyes had the right to hear the Chief Judge testify against him. That is fair hearing.

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Appellant relied on the case of HRH ALH. DR ADO BAYERO (THE EMIR OF KANO) V. ALH AMINU BABBA DAN AGUNDI (SARKIN DAWAKINMAI TUTA) Appeal No. CA/K/1299/2011 (Unreported).

The Appellant submitted that, according to Court of Appeal is that: there must be evidence before the Court. The Appellant submitted that there was no such evidence but a chain of delegation of authority i.e. from the Governor (chief servant) to the Hon. Commissioner, to the Permanent Secretary, and all lacking in depth by way of requisite memoranda backing or accompanying the purported chief servants approval either for the removal of Plaintiff or the appointment of the new village head of Doko, the 6th Respondent. He also asked if a delegate sub-delegate? The Appellant starts with the quotation: “it is trite that a delegate cannot delegate”. The Appellant further states that from the case of BAMGBOYE V UNIVERSITY OF ILORIN (1991) 8 NWLR (PART 207) 1 AT 30, the law does not allow or accept as valid what DW3, Permanent Secretary, Rijau did in the termination letter Exhibit A, purported as being delegation by the Hon. Commissioner and as an earlier delegation from the Governor

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who in turn was delegated by the government and people of Niger State. He urged the Court to resolve the issue in his favour.

1st RESPONDENT’S ISSUE ONE
ISSUE 1
In the respectful submission of Counsel, an appropriate starting point in the resolution of this issue is to consider the state of the pleadings as it relates to the issue of fair hearing. The only fact that the Appellant pleaded as constituting breach of his right to fair hearing was not proved.

The 1st Respondent submitted that the Appellants’ case at the lower Court lacked any foundation as he did not file any amended statement of claim pursuant to the Court’s order granting his above application for amendment of his statement of claim. Furthermore, the process that the Appellant (as PW1 and star witness for his case) adopted his evidence in chief on the basis of which all the documents tendered through him were admitted- is a witness deposition he allegedly made in the month of March, 2014. The record however demonstrates that the Appellant did not make any written deposition in March, 2014.

​The 1st Respondent states that since the Appellant alleged that he was

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not given opportunity of being heard by the committee of the Ministry of Local Government on his dethronement and unequivocal admission of the trumps of his said allegation puts an end to any further enquire on the issue. It is trite that admission is the best evidence, and those admissions extracted under cross-examination are potent evidence that a trial Court must accept and act upon. See OGBEIDE V. OSULA & 3 ORS (2004) 12 NWLR (pt 886) 86, 118 C-E

The 1st Respondent submitted that the lower Court rightly found that the Appellants’ right to fair hearing was not breached. In the instant case, the evidence led establishes the opposite of a pleaded fact, such fact is clearly not proved and the Court has no choice but to hold so. Also contended that the other allegations of breach of fair hearing were not pleaded and it is goes to no issue.

​The 1st Respondent submits that the Appellant failed to prove his allegation of breach of fair hearing and adjusted his case at the address to invent new facts on alleged breach of fair hearing. He stated further that the Appellant tried to smuggle in allegation on the composition of the emirates

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committee, and the fact that the Appellant was not allowed to hear and cross-examine certain persons who testified against him. The settled law is that address of counsel cannot take the place of pleadings. See AGHARUKA V. FIRST BANK OF NIGERIA LIMITED & 2 ORS (2010) 3 NWLR (part 1182) 465, 4859.

Further, the 1st Respondent states that a party is not permitted to put up at any stage of the hearing, a case different from that in his pleadings. If a party seeks to rely on such crucial facts as the improper composition of a judicial or quasi-judicial body, or his denial of the opportunity of hearing and cross-examining witnesses, then he must plead such facts before he can be relevant and bound to be considered by Court. See YARE V. NATIONAL SALARIES WAGES AND INCOME COMMISSION (2013) ALL FWLR (Pt. 709). The 1st Respondent submitted that even the belated allegations of breach of fair hearing made were not proved.

Furthermore, the 1st Respondent argued that since the Appellant alleged that he was not given the opportunity to hear witnesses that testified against him or to cross-examine them, the onus is on him to prove his facts in compliance with

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the law that he who asserts must prove. In the absence of the proceedings of the committee or indeed any credible evidence that the Appellant was disallowed from hearing and cross-examining the witness, there is no burden on the 1st Respondent or any of the Respondents to prove the contrary.

Also, the Respondent submitted that EXHIBIT B, which is the letter conveying the approval of the Appellants removal, does not state or in any way suggest that the views of his witnesses were not considered. There was no evidence to support the allegations of the Appellants witnesses’ views not being considered.

The 1st Respondent states that the basis of the Appellant’s 25th hour allegation is on the report of the committee (EXHIBIT B2). The document is not a record of proceedings of the committee, but its report. That there is nowhere in EXHIBIT B2 it indicated that the Appellant was absent when the witnesses testified or that he was not afforded the opportunity of cross-examining any of them.

​The Court is particularly urged to discountenance all the authorities cited as they do not apply to the facts of this case. Finally, he respectfully urge

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my lord to resolve this issue in the affirmative and uphold the decision of the lower Court to the effect that the Appellants right to fair hearing was not breached.

3RD & 4TH RESPONDENT’S ISSUE ONE
The 3rd & 4th Respondent submitted that the Appellant at the lower Court admitted being called upon by the committee set up by the Ministry for Local Government. He stated in line 3-9 page 940 of Volume 2 of the Record of Appeal. The Respondents submitted that it is common knowledge that admission is the best form of evidence. The Respondents submitted that the lower Court conveniently relied upon the admission by the Appellant in his Exhibit C and the further admission extracted during cross-examination that the Appellant had the chance of being heard. The Respondents state that the Appellant raised new issues that were not pleaded at the lower Court. It is settled law that parties are bound by their pleadings. The essence is to put the other party on notice to enable them build a defence. See JULIUS BERGER NIGERIA PLC V OGUNDEHIN (2013) ALL FWLR (pt 696).

The 3rd and 4th Respondent reiterate that though the Appellant has alleged that

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he was not given fair hearing when he was not allowed to cross-examine other witnesses, the burden still rest on him to prove the salient issue, none of the Respondents will be called upon to prove this allegation for him, the Appellant should win the case on the strength of his evidence not the on the weakness of the case of his defence.

5TH & 6TH RESPONDENTS’ ISSUE ONE
ISSUE 1
The Respondents submitted that no right is absolute. Right to fair hearing must be exercised within the legal frame work provided for the hearing of any matter. See Section 36 (1) of the 1999 Constitution of the FRN (as amended). The principle of fair hearing was expounded by the Supreme Court in the case of PAM V MOHAMMED (2008) 16 NWLR (PT. 1112) 1 at 68. The Respondent states that the Appellants contention is that he was not given fair hearing by the 3-man committee of the Ministry of Local Government which investigated the allegations against him leading to his dethronement. They contend that the Appellant was given fair hearing. The 5th and 6th Respondents submitted that the Appellant by his own submission admitted to have been invited by the two

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committees and he appeared. This is an admission which the law says is the best evidence against a party making it.

Further, the respondent states that in the instant case, there was no allegation against any member of the panel set up to investigate the allegations against the appellant. The Appellants’ contention that he was not given fair hearing is misconceived and ought to be discountenanced. Also, the learned counsel to the Appellant as stated at paragraph 5.6, 5.9, 5.10, 5.12, 5.13 of his brief has taken a swipe on certain individuals who were not parties to the suit before the lower Court. No pleadings of the Appellant made reference to them. The Respondent submitted that it is not the case set up by the Appellant at trial. He cannot set up a different case on appeal. The law is firmly settled that parties must be consistent with the case he presented before the Court. SeeADEOSUN V. THE GOVERNOR OF EKITI STATE & ORS-CITATION (2012) LPELR-7843(SC).

​Finally, the 5th and 6th Respondents submitted that the allegation of the Appellant that he was not given fair hearing by the committees is not correct as the Record shows clearly

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where he admitted given fair hearing and even thanked the committee for giving him the opportunity to be heard. They thereby urge this Court to resolve this issue in favour of the Respondent and against the Appellant.

APPELLANT’S REPLY
We shall now treat each of the identified two issues separately in this reply. The Appellant submits that in Exhibit B2 on page 554, the fact that the Appellant was asked to go to Justice JIBRIN NDAJIWO to apologise to him is crystal clear, yet in the same Exhibit B2 the committee met with the learned Judge who gave very damning evidence against the Appellant in his absence. The Appellant further submitted that by suspending the Appellant before he was invited by the committee, the Council has not only breached his constitutional right but also punished him even before he had the opportunity of being heard. See EKPENETU V. OFEGOBI (2013) ALL FWLR (PT 680) AT 1336-1337.

The Appellant states that it is trite law that fair hearing is a requirement even before quasi-judicial panel/committee like that set up by the Bida Emirate Council whose report is Exhibit B as one of the twin pillars of natural justice, fair

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hearing could be implied even when it is not expressly abundantly pleaded specially where there is abundance of documents (Exhibit B2) demonstrating the violation or denial of fair hearing principle. See COCA-COLA NIG. LTD & ORS V. MRS TITLAYO AKINSANYA CA/L/661/2016.

The Appellant argued that it appears that the emirate council chose numbers over quality of witnesses. All petitioners’ witnesses were taken and their evidence recorded without any backing of the allegations with proof.

Furthermore, the Appellant submitted that from the moment the he was suspended by the Emirate Council before he was even invited to appear before the committee, and everything else that followed is a nullity.

RESOLUTION OF MAIN APPEAL
The Appellant raised the issue of fair hearing in issue two and it was responded to by the Respondents who argued that there was no breach of fair hearing under their issue one. Fair hearing generally connotes the observance of the twin pillar rules of Natural justice, the apex Court in ARIJE V ARIJE (2018) LPELR-44193(SC) held thus:
“Now the right to fair hearing is one of the fundamental rights

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guaranteed in Chapter IV of the 1999 Constitution. See Section 36 (1) thereof. It is one of the twin pillars of natural justice which support the Rule of Law. The pillars are an indispensable part of the process of adjudication in any civilized society. They are: audi alteram partem (hear the other side i.e. one must be heard in his own defence before being condemned) and nemo judex in causa sua (no one may be a judge in his own cause). See: R Vs. Rand (1866) LR Q.B. 230; Ndukauba Vs Kolomo & Anor. (2005) 4 NWLR (PT.915) 411; Ikomi Vs The State (1986) 5 SC 313; Akpamgbo Okadigbo Vs Chidi (2015) LPELR-24564 (SC) 1 @ 39 E – F. The concept of fair hearing encompasses not only the principle of natural justice in the narrow technical sense just referred to, but in the wider sense of what is right and fair to all concerned and is seen to be so. See: Unibiz Nig. Ltd. Vs Commercial Bank Credit Lyonnais Ltd. (2003) 6 NWLR (Pt.816) 402. Fair hearing requires that the trial must be conducted according to all applicable legal rules with a view to ensuring that justice is done to all parties before the Court. The law is trite that any proceedings conducted in breach of

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the right to fair hearing are a nullity and liable to be set aside. See: Ariori Vs Elemo (1983) 1 SC 81; Kotoye Vs C.B.N (1989) 1 NWLR (Pt.98) 419. It is equally trite that where the principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same, the proceedings would still be null and void. See: Salu vs. Egeibon (1994) 6 NWLR (Pt. 348) 23; Adigun vs. A.G. Oyo State (1987) 1 NWLR (Pt. 53) 678; Bamgboye vs University of Ilorin (1999) 10 NWLR (Pt. 622) 290. All the authorities referred to above underpin the importance attached to the observance of the principles of natural justice in any adjudication. Per KEKERE-EKUN, J.S.C.

The Appellant’s case is principally that he was denied the right to cross-examine some of the witnesses who appeared before the committee investigating the allegation against the Appellant. The Appellant named one MALLAM MUHAMMADU MAMUDU, NDAD /OKO OF KONUFU and the Chief Judge of Niger State, JIBRIN NDAJIWO all testified in the absence of the Appellant and was not cross-examined. It is also on record that he gave a damning testimony against the

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Appellant. This is one obvious breach of the right to fair hearing. Hear the apex Court in the case of TYONEX NIG. LTD & ANOR V PFIZER LTD (2019) LPELR-49520 (SC), it said:
“…Instructively, the touchstone for determining the observance of fair hearing in trials is not the question whether any injustice has been occasioned on any party due to want of hearing. It is rather the question whether an opportunity of hearing was afforded to parties to be heard, in this case, the Appellant, Ogundoyin V. Adeyemi (2001) 33 WRN 1, 13 – 14; (2001) 13 NWLR (Pt. 730) 403. Thus, in order to be fair, “hearing” or “opportunity to be heard” must inter alia encompass a party’s right: to cross-examine or otherwise confront or contradict all the witnesses who testified against him; to have disclosed to him the nature of all relevant material evidence, including documentary evidence, prejudicial to him except in exceptions. Durwode V. State (2001) WRN 50; (2000) 15 NWLR (Pt. 691) 467.” Per NWEZE, J.S.C.
Breach of fair hearing has the consequence of nullifying the proceedings, see DINGYADI & ANOR V INEC & ORS (2010) LPELR-40142(SC) which held thus:

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“The law is trite that the effect of breach of the right of fair hearing in any proceedings of Court as happened in the instant case rendered the proceedings including the judgment of 10th March, 2010 dismissing the appeal, a complete nullity. See Rasaki Salu v. Taiwo Egeibon (1994) 6 S.C.N.J. 223 also reported in (1994) 6 N.W.L.R. (Pt. 348) 23 at 44 Adio JSC (of blessed memory) said – “It also had to be remembered that the denial of a fair hearing was a breach of one of the rules of natural justice that is the requirement that a party must be given a fair hearing. The consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void.” See also Adigun v. Attorney-General of Oyo State (1987) 1 N.W.L.R. (Pt. 53) 678. All Courts including this Court are bound to observe the rule of natural justice in all their proceedings including proceedings in Chambers where parties and their Counsel are not present. This cannot be achieved unless and until all parties are heard or given the opportunity of being heard. See Alhaji Yekini Otapo v. Chief R. O. Sunmonu & Others. (1987) 5 S.C.N.J. 57 also reported in (1987)

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2 N.W.L.R. (Pt. 58) 587.”

The Respondents argued that the Appellant was given a hearing by the opportunity given him to submit his presentation to the committees and therefore he was able to present his defence. The matter goes beyond presentation of defence, if no witness testified, the case could have been different but witnesses were taken behind the Appellant and he was not allowed to cross-examine those witnesses. That alone is sufficient to nullify the reports of the committee and the Judgment of the trial Court which was based on the report to find that the Appellant was lawfully dismissed.
It is trite that administrative or quasi judicial investigative bodies must observed fair hearing rules; see GYANG & ANOR V COP LAGOS STATE & ORS (2013) LPELR-21893(SC) which held:
“It has long been settled in a line of cases decided by this Court that administrative bodies or tribunals, acting judicially in the determination or imposition of a decision that is likely to affect the civil rights and obligations of a person, are bound and enjoined to strictly observe the principles of fair hearing. See R v. ELECTRICITY JOINT COMMISSION (1968) NMLR

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102: ADEYEMI v. ATTORNEY-GENERAL FEDERATION (1984) 1 SCNLR p. 525: ADIGUN v. ATTORNEY-GENERAL OYO STATE & 18 ORS (1987) 1 NWLR (Pt.53) 682; OYEYEMI V. COM. FOR LOCAL GOVERNMENT (1992) 2 NWLR (pt.226) 661 at 67; AKIBU v. ODUNTAN (2000) 13 NWLR (pt.685) p.446; STATE v. AJIE (2000) 11 NWLR (pt.678) 434 and AKANDE v. NIGERIAN ARMY (2001) 8 NWLR (pt.714) P.1. This principle often expressed by the Latin Maxim “AUDI ALTERAM PARTEM” MEANING “HEAR THE OTHER SIDE,” HAS BEEN FOR LONG ENSHRINED IN OUR JURISPRUDENCE.”
The Committee set up by Bida Emirate Council to investigate weighty allegations against the Appellant was acting in a quasi judicial capacity. EXHIBIT B2 is the report the Emirate Council and the State Government acted upon to issue the Appellant his dismissal letter, EXHIBIT A1. Appellant also complained that his witnesses were not called by the committee thereby denying him additional evidence in defence. The Appellant admitted that he was allowed to present his write up but defence is not limited to what the individual or person facing allegations can say, it includes the opportunity to call additional witnesses and also cross all who would

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appear to testify in the investigation. The opportunity must be given. The person can decline to use that window, but it must be offered in clear terms which the record must reflect. It is not what can be inferred, the offer must be real.

On this issue, I find for the Appellant and nullify the committee’s report- EXHIBIT B2 and consequently EXHIBIT B1- the letter of dismissal. The judgment of the trial Court founded on the report cannot stand, it was based on the report set aside for breach of right to fair hearing. It has no foundation to stand and must also be set aside.

​The 1st Respondent contended that breach of fair hearing was not specifically pleaded in the statement of claim. I find that an issue alleging breach of fair hearing was addressed before the trial Court, see page 1061 where the trial Judge summarized issues for determination as raised by the Respondents. Ground one of the Notice of Appeal also raised the issue of fair hearing and no objection was taken seeking to strike out ground one. The Respondents joined issues with the Appellant on the issue, it is therefore late in the day to allege it is a different case. It was

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therefore an issue at the trial Court and propel also here. There is a Ground of Appeal, and it is however, a constitutional breach and a Court of law would not ignore a breach such in the guise of complying with rules of Court, see VICTINO FIXED ODDS LTD V OJO & ORS (2010) LPLER-3462 (SC) which held thus:
“Once right is violated, it is irrelevant whether a decision made subsequent thereto is correct. See: Tukur v. Government of Gongola State (1989) 9 SCNJ 1; (1989) 4 NWLR (pt.117) 517. It should be further stated that on a breach of the right of fair hearing, an Appellate Court does not go to the reasons for its breach or the consequences of same. It has no alternative but allow the appeal against the decision and treat it as though there has been no hearing at all. An Appellate Court is bound to follow this course in the hearing of the appeal. See: Adigun & Ors. v. A.G. Oyo State & Ors. (1987) 2 NWLR (Pt. 56) 197. A denial of the right to be heard is a breach of constitutional right, natural justice and Rules of Court. Such cannot and ought not be condoned in any respect. See Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587. It is a basic and

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fundamental principle of the administration of justice that no decision can be regarded as valid unless the trial judge or Court has heard both sides in the conflict. See: Deduwa v. Okorodudu (1976) 9 – 10 S.C. 329.
Ordinarily, the Court should proceed to determine the other issues donated for determination on the admonition of the apex Court that an intermediate Court should determine all issues presented for determination by parties, but there are exceptions to that rule, particularly in situations where the case is to be sent back for retrial, so that the minds of the Judge to rehear the case is not prejudiced. Also in issues of jurisdiction; where absence of jurisdiction is obvious on the face of the record; where the judgment is a nullity and in the clearest of cases. Another class is where the issue is academic. In some cases, where there is a breach of fair hearing which consequently nullifies the Judgment. See A.G. LEVENTIS (NIG) PLC V AKPU (2007) LPELR-5 (SC) which held:
“…it is firmly settled that it is the duty of all lower Courts to consider all issues placed before it except in the clearest cases. In the case of

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Owodunni v. Registered Trustees of Celestial Church of Christ & 3 Ors. (2006) 6 S.C. (Pt. II) 60; (2000) 6 SCNJ (299 at 426-427, this Court- per Ogundare, JSC., (of blessed memory) stated that this Court has frowned, in a number of cases, at the failure of lower Courts, to decide all issues placed before them. That unless in the clearest of cases, an intermediate Court should endeavour to resolve all issues put before it. His Lordship referred to the cases of Odunayo v. The State (1972) 8-9 S.C. (Reprint) 173; (1972) 8-9 S.C. 290 at 296- per Sowemimo, JSC., (as he then was and of blessed memory) and Ifeanyi-Chukwu (Osondu) Ltd. v. Soleh Boneh Ltd. (2000) 3 S.C. 42; (2000) 5 NWLR 322 at 351 which is also reported in (2000) 3 SCNJ 18.”
Furthermore, in the case of IDIRS & ANOR V SALIK & ORS (2009) LPELR-8518(CA), the Court held:
“It is settled law that the trial Court or Tribunal is under a compelling duty to pronounce on all issues raised before it for determination in the course of trial as failure to do so may amount to miscarriage of justice. In Brawal Shipping (Nig) Ltd. V. F.I. Onwadike Co. Ltd. (2000) 6 SCNJ 508 at 522 the Supreme Court held

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thus:- “The Supreme Court demands of, and admonishes the lower Courts to pronounce, as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal. It has made this clear in its observations in several cases. Failure to do so may lead to miscarriage of justice and certainly will have that result if the issues not pronounced upon are crucial. Consequently, there could be avoidable delay since it may be necessary to send the case back to the lower Court for those issues to be resolved. The obvious exceptions are when an order for a re-trial is necessary or the judgment is considered a nullity, in which case there may be no need to pronounce on all the issues which could arise at the re-trial or in a fresh action as the case may be.” Per JEGA, J.C.A (of blessed memory).
​Breach of a party’s constitutionally guaranteed right to fair hearing, where established, affects the entire proceedings thereby rendering the decision of the Court null and void. Cases attesting to this principle are legion. In

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F.R.N. V. AKUBUEZE (2010) LPELR-1272 (SC), the apex Court restated the principle thus: –
“It is the law that once it is duly established that the right of fair hearing as entrenched under Section 33 of the Constitution has been breached in judicial proceeding, its breach vitiates the entire proceedings. Therefore, when the appellate Court finds that the right of fair hearing is breached, it shall have no alternative but to allow the appeal.” See also Tsokwa Motors (Nig) Ltd V. UBA Plc (2008) ALL FWLR (Pt 403) 1240 at 1255, Edibo v. State (2007) 13 NWLR (Pt. 1051) 305, Eze V. Spring Bank Plc (2011) 12 MJSC (1) and Chitra Knitting and Weaving Manufacturing Company Limited V. G. O. Akingbade (2016) LPELR-40437 (SC).”
​Flowing from above, having declared the committee report, EXHIBIT B2 a nullity for breach of right to fair hearing, the judgment founded on the report is also a nullity, consequently, there is no need to determine the other issues donated for resolution because they become academic and, the Emirate Council could decide to set up another committee to investigate the weighty allegations against the Appellant. If the issues are resolved on the

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basis of the breach of fair hearing, it may prejudice the new committee and could affect the actions of approving authorities in the event of a fresh investigation. Furthermore, a report set aside for breach of fair hearing cannot give rise to live issues for determination to be founded on such a report. I am of the humble view that resolving the remaining issues could be prejudicial to any subsequent action the Emirate Council might want to take on the matter. Suffice to say that all steps taken upon Bida Emirate Council Committee Report (Exhibit B2) is null and void for breach of Appellants right to fair hearing and is hereby set aside. This notwithstanding, the Appellant is not reinstated as the Etsu Dazhi Doko. He can only be reinstated after due clearance from the weighty allegations.

Consequently, the Appeal succeeds, the Judgment of the trial Court in suit NO: delivered on the 15th December, 2016 is hereby set aside.

STEPHEN JONAH ADAH, J.C.A.: I was privileged to read in draft the judgment just delivered in Court by my learned brother Yargata Byenchit Nimpar, JCA.

​I am in agreement with his reasoning and conclusion in this appeal. In

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furtherance of which I make these few comments. The facts of the case has been well captured in the lead judgment, so I do not need to recap them here.

A preliminary objection was raised in this appeal contending that the Originating Process was incompetent thereby affecting the jurisdiction of the trial Court and that there will be no valid judgment therefrom on appeal. The objection was well argued by the parties. In brief, I wish to echo that where a claim has been initiated by a Writ of Summons and there is no defect incompetence, the Court’s jurisdiction to hear the suit has been activated. A properly filed Originating Process confers jurisdiction on the Court. See: Kente V. Ishaku & Ors. (2017) 12 NWLR (Pt. 1578) 94, Braithwaite V. Skye Bank Plc (2012) LPELR- 15532 (SC). When in the course of a trial an amendment is proposed and the proposal for whatever reason does not fall through, the respondent cannot legitimately say the plaintiffs case was not competent before the Court. What could be attacked is the failed proposal. If the proposal was not followed through and properly filed, the attack should be on the said failed proposal and not

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on the claim already filed and competently pending before the Court. In the instant case, it is on record that there was a mix up wherein the trial Court irregularly deemed the proposed Amended Statement of Claim. The objectors in this instance did not object all through the hearing of the case until the case came on appeal. Since they did not raise the issue timeously, but responded and relied on the irregularly deemed process to the end of the trial, they have lost the vires to complain of such a process as they cannot approbate and reprobate in any case. They are estopped from complaining about the said process of the trial Court.
I am therefore, in agreement with my learned brother in the lead judgment that the objectors had waived or condoned the irregularity. I believe too that the preliminary objection is lacking in merit and I do dismiss it.

​In the main appeal, the main thrust of the complaint is that the appellant’s right to fair hearing was breached. The complaint was that the appellant was not given the opportunity to cross – examine some of the witnesses whose testimony was used against the appellant. The witnesses who testified

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in the absence of the appellant were witnesses called by the committee set up by the Bida Emirate Council whose report is Exhibit B (2). The decision of the trial Court was anchored principally on the report of the said Emirate Council report. The trial Court in its judgment at pages 1067 to 1068 had this to say:
Having considered the evidence adduced by the parties in this suit. I shall now consider the purported and intendment of some of the vital exhibits tendered and admitted in evidence in the course of trial.
Exhibits B3 and C indicates that the plaintiff was accorded fair hearing by the committee set up by Bida Emirate Council. The fuller portion of exhibits B2, (C) and (D) are hereby reproduced. On page 1 paragraph (d) of exhibit B(2) reads as follows:
“The committee therefore, urged the petitioners to read their petitions against Etsu Dazhi, the Village Head of Doko to the hearing of the committee members and Etsu Dazhi Doko. However, Alhaji Usman Ndako Magajin Gari Doko was mandated to read the petitions. A total of twenty seven (27) out of forty (40) petitions were selected and deliberated upon line by line and interpreted to

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Etsu Dazhi for his comments”.
EXHIBIT C reads: –
“My position in respect of the crisis surrounding my suspension from office as the Village Head (Etsu Dazhi) of Doko in Lavun Local Government Area of Niger State. Submitted to the committee investigating the suspension of Etsu Dazhi of Doko by His Royal Highness, Alhaji Yahaya Abubakar, Etsu Nupe by Alhaji Muhammadu Gana Kpanje- 14th August, 2013.
EXHIBIT “D” IS ADDRESSED TO THE PLAINTIFF AND IT READS: –
27th February, 2013. Alhaji Muhammad Kpanje Gana, Dazhi Doko.
INVITATION TO APPEAR BEFORE THE COMMITTEE SET-UP BY THE EMIRATE COUNCIL TO INVESTIGATE THE ALLEGATIONS AGAINST YOU BY SOME ELDERS OF DOKO.
I am directed to inform you that you are invited to appear before the committee set-up by the Emirate Council to investigate the allegations against you by some elders of Doko on Thursday, 28th February, 2013 at the Emirate Council’s chamber Wadata by 10:00am
2. Kindly act accordingly. Aihaji Abdulmalik Usman Tsoeda Rabba, Secretary, Bida Emirate Council.
In view of my findings above, I have no difficulty in arriving at a conclusion that the

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plaintiff was given every latitude to present his case and he actually submitted exhibit “C” as his position in respect of his removal as the Etsu Dazhi of Doko.
Consequently, I hold that the plaintiff cannot be heard to complain of a breach of fair hearing.

The trend and thread in the right of fair hearing is the fact that a party to any dispute or a subject of any investigation must be heard. His being heard is a composite function of the essential ingredients of being accused and being given a hearing. Any of his accusers or those testifying in support of his accusers must be heard by him, cross-examined by him so that he may be satisfied that be reacted in his own defence against his such accusers.

​Fair hearing is not a theoretical right, it is a practical right which comprised of (a) audi alteram partem and (b) memo dat judex in causa sua. These two concepts are that one must be heard in his own defence and that no one should be a judge in his own cause. These twin pillars of justice constitute the test of fairness or fair hearing in any proceedings conducted to determine the rights of parties. So, fair hearing entails the

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conduct of the proceedings thereof in accordance with the relevant Law and Rules in Order to ensure justice and fairness. See Salu V. Egeibon (1994) 6 NWLR (Pt 348) 23; Mohammed V. Olawunmi (1990) 2 NWLR (Pt 133) 458; Ntukidem V. Oko (1986) 5 NWLR (Pt 45) 909; Ariori & Ors V. Elemo & Ors. (1983) LPELR- 552 (SC); Dangote Uen. Textile Products Ltd & Ors V. Hascon Associates (Nig.) Ltd & Anor (2013) LPELR-20665 (SC). In Ovunwo & Anor V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522, the Supreme Court per Adekeye, JSC, held that:
“The right to fair hearing is a very essential right for a person to secure justice. A fair hearing connotes or involves a fair trial and a fair trial of a case consists of the whole hearing. R V. Cambridge University (1723) 1 St. 557. Where the person alleging breach of fair hearing, has established it, it follows that a breach of fair hearing in trials initiate such proceedings rendering same null and void.”
In the instant case, the breach was found in the foundation of the case. The appellant’s right to fair hearing was breached before the committee set up by the Emirate Council. The breach

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flawed the report of that committee.
The lower Court having seen that, ought to have voided that report which ipso facto would impact on the case before the Trial Court. I agree with my learned brother in the lead judgment that this flawed report be voided. With this and for the fuller reasons given in the lead judgment, I agree that this appeal succeeds. The judgment of the lower Court is hereby set aside.
I abide by all the consequential orders made therein.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Yargata Byenchit Nimpar, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

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Appearances:

S. E. MOSUGU, SAN with him, T. E. MOSUGU, ESQ., and O. ALHASSAN IDOKO, ESQ. For Appellant(s)

A.U.J. UDOH, ESQ. – for 1st Respondent

SUNNY TABI, ESQ. – for 2nd Respondent

DANLAMI ALH, ESQ., with him, WUSHISHI CSC, ESQ. – for 3rd and 4th Respondents

J. J. USMAN, ESQ., with him, ISAKA KADIN, ESQ., ST MOMOH, ESQ., SAFIYA MOHAMMED, ESQ., and B.O. OGBU, ESQ. – for 5th and 6th Respondents For Respondent(s)