GBENGA OLORUNFEMI V. NIGERIAN EDUCATIONAL BANK LTD.(2002)

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  1. GBENGA OLORUNFEMI V. NIGERIAN EDUCATIONAL BANK LTD.

2002)LCN/1165(CA)

In The Court of Appeal of Nigeria

On Thursday, the 25th day of April, 2002

CA/A/73/98

 

JUSTICES

DAHIRU MUSDAPHER   Justice of The Court of Appeal of Nigeria

ZAINAB ADAMU BULKACHUWA   Justice of The Court of Appeal of Nigeria

ALBERT GBADEBO ODUYEMI   Justice of The Court of Appeal of Nigeria

Between

 

  1. GBENGA OLORUNFEMI Appellant(s)

AND

NIGERIAN EDUCATIONAL BANK LTD. Respondent(s)

 

MUSDAPHER, J.C.A. (Delivering the Leading Judgment): This matter was heard denovo by this court on the 12/2/2002. The matter was heard earlier by a different panel and when an issue was discovered requiring the parties to make further address and to file supplementary briefs, the matter was heard afresh by a different panel of this court. The matter started this way. In the High Court of the Federal Capital Territory Abuja and in suit No. FCT/HC/CV/189/96, the plaintiff vide paragraph 22 of the amended statement of claim claimed against the defendants the following reliefs:
“22 Whereof the plaintiff claims against the defendants jointly and severally as follows:
(a) A declaration that the powers of ownership contained in the power of Attorney of the 7/4/1993 have passed to the plaintiff and that he is entitled to the possession of the said property.
(b) Possession of the property from the occupants of the property in good and tenantable repairs.
(c) The rent of N665.583.34 being the balance of the rent collected by the first defendant from the 2nd defendant from April 1984 until the three years tenancy expires in September, 1996.
(d) Tenancy calculated at N22,916.66 per month from 1st and 2nd defendants being the monthly prorata rent on N275,000 per annum from September, 1996 until judgment and delivery up of possession to the plaintiff.
(e) A rental of N20,000 per month from the 1st and 3rd respondents from April 1994 until judgment and delivery up of possession of the two bedroomed flat to the plaintiff.
(f) N 2,000.000.00amages against the defendants for trespass.
(g) IN THE ALTERNATIVE the plaintiff claims N21,769,6l6.21, in return for relinquishing its claim of ownership of the plot.”
The defendants in the court below were the appellant herein as the 1st defendant, United Bank For Africa Plc as the 2nd defendant and Albert Legogie as the 3rd defendant. The 2nd and 3rd defendants never appeared at the trial. It was the appellant herein as the 1st defendant who appeared at the trial where he resisted the plaintiff’s claims and set up a counter-claim. At the trial the plaintiff called one witness and the 1st defendant appeared only once and took no further part in the proceedings. Based on the evidence adduced before him the trial Judge, Saleh CJ, partially found for the plaintiff. It is against this decision that the first defendant felt unhappy and had appealed to this court. Now the plaintiff shall hereinafter be called the respondent while the first defendant, the appellant.
The notice of appeal was amended with the leave of the court and the final grounds of appeal are:
1. The decision of the lower court is against the weight of evidence.
2. The learned trial Chief Judge erred in law when he held as follows:
“Consequently I grant the plaintiff prayer in paragraph 22 of the statement of claim, that is exhibit 5 is valid and passed on the plaintiff rights and obligations of Alpha therein by virtue of exhibit 11 and so plaintiff is entitled to be paid his money plus interest from 1st, 2nd and  3rd defendants. and this error occasioned a miscarriage of justice.
Particulars of Error
(i) The relief claimed in paragraph 22(a) of the statement of claim is in nature of declaration of title to appellant’s landed property mentioned in the power of Attorney dated 7/4/93.
(ii) There was no evidence of any legal mortgage of the appellant’s said landed property to Alpha Mortgage Finance Company Ltd. to which there was consent of the appropriate authority as required bylaw.
(iii) The loan agreement between the appellant and Alpha Mortgage and Finance Co. Ltd. was not produced in evidence before the trial court.
3. The learned trial Judge erred in law when he held that exhibit J which is the Power of Attorney is Genuine and transferred title from the appellant to Alpha Mortgage and Finance Co. Ltd. and finally to plaintiff respondent.
Particulars
(i) There cannot be a transfer or change of title of landed property without the consent of the appropriate authority and due registration of the transferring instrument.
(ii) There was no evidence to show that the 1st defendant appellant was given consent to transfer the property to Alpha Mortgage and Finance Co. Ltd. Nor did Alpha Mortgage Finance Co. Ltd. obtain consent to transfer same to the respondent.
4. The learned trial Judge erred in law when he entered judgment in favour of the respondent in the sum of  N21,769,616.21.
Particulars
(i) Despite acknowledging the fact that there was no statement of Account from Alpha Mortgage Finance from 23/7/93 to the appellant telling him the balance before the due date and after due date, the court still proceeded to enter judgment in favour of the respondent in the sum of N21,769M6.21.
(ii) It is on record that the plaintiff did not display nor tender in evidence nor even secondary evidence, if not the original agreement.
5. The proceedings and or judgment of the learned trial Chief Judge amounted to a nullity in that the appellant was not given a fair hearing.
Particulars
(i) There was evidence that the appellant filed a statement of defence to the respondent’s claims.
(ii) There is no evidence on the printed record that the appellant was served with a hearing notice that the matter would come up for hearing on the 9th of April, 1998 which the respondent argued and closed its case.
(iii) There is also no evidence on the printed record that the appellant was served with a hearing notice that the matter was coming up for continuation of hearing on 3/6/98 which was the date the plaintiff moved his motion to amend the statement of claim and went ahead to address the court.
(iv) The appellant was not given opportunity to defend himself.”
Before the examination of the grounds of appeal and the issues distilled there from, it shall be appropriate at this stage to set out the background facts of this matter. The case for the respondent was that, the appellant by letters of 1/2/92 and 5/3/93 applied to Alpha Mortgage and Finance Co. Ltd. (hereinafter called simply Alpha) for a loan facility to enable him develop a piece of land. The facility was granted at 13 per cent interest and as a condition to appellant  deposited with Alpha his Certificate of Occupancy No. FCT/ABU/LA/225 concerning the property to be developed. Eventually, the appellant executed a power of Attorney in favour of Alpha that was on the 7/4/1993 and exhibit 5 in the court below. The appellant defaulted in repaying the loan to Alpha.
By the 5/10/1993, the total amount due on the loan agreement was N861,226.52. The appellant made a part payment of N451,961.50 thus leaving a balance of N409,265.02 It is claimed by the respondent, that on the failure of the appellant to settle the debt Alpha “exercised its power to sale” under the Power of Attorney and sold the property to the respondent. Alpha executed a Power of Attorney on the 19/4/1994 exhibit 10 “evidencing the sale in favour of the respondent”.
Further by an Instrument of Indemnity exhibit 11, Alpha assigned all its rights in the loan agreement to the respondent. The Instrument of Indemnity was executed on the 22/4/1994. It is further alleged that the balance outstanding on the loan agreement as at June 1996 including interest and penalty stood at N21,769,616.21.
This claim was said to be in the alternative. The respondent also as shown above claimed rent which had accrued and which will accrue jointly and severally against the appellant and the 2nd and 3rd defendants. As mentioned above the 2nd and 3rd defendants never appeared and the appellant appeared only once during the proceedings and he did not lead any evidence in defence of the claim against him nor in proof, on his counter-claim.
The matter was mentioned in court on 7/11/1996 when the respondent moved an ex-parte motion to serve the defendants including the appellant by substituted means. The motion was granted and the matter was adjourned to 19/11/96 for “continuation”.
On the 19/11/96 the appellant appeared in court and the matter was adjourned to 24/2/1997 for hearing. Nothing was recorded until 9/4/1997 when in the absence of the appellant the respondent called its only witness. At the end of his evidence-in-chief, the matter was adjourned to 29/4/1997 for cross examination. Nothing was recorded again until the 24/6/1997 still in the absence of the appellant, the respondent’s counsel requested adjournment in order to serve the appellant with a hearing notice. The matter was adjourned to 15/7/1997. On that date the appellant was not served since the learned counsel for the respondent asked for another adjournment to 28/7/1997 “to try to serve” the appellant. Again when the matter came up it was adjourned to 22/9/1997. Nothing happened until 4/3/1998 when the learned counsel again asked for an adjournment for hearing notice to be served on the appellant the matter was adjourned to 23/4/1998. Again in the absence of the appellant when the matter came up on the 28/4/1998 it was adjourned to 3/6/1998 at the request of the respondent’s counsel. On that date a motion was moved by the respondent amending the statement of claim and the learned counsel for the respondent addressed the court and judgment was reserved to the 22/6/1998.
Now, the appellant in his brief has identified, formulated and submitted three issues for the determination of the appeal. They are:
“(i) Whether the Power of Attorney that is, exhibit 5 executed by the appellant in favour of Alpha validly transferred ownership of that property Plot No.332 Kofiruduo Street, Wuse II Abuja to Alpha and if the answer is in the negative what then is the effect of the Power of Attorney and Indemnity executed by Alpha in favour of the respondent.
(ii) Whether the respondent has proved its case as required by law thus entitling it to the judgment entered in its favour by the lower court.
(iii) Whether the appellant was given a fair hearing.”
For the respondent, the learned counsel also formulated issues for the determination of the appeal.
They are:
“(i) Is the appeal competent without an application for extension of time within which to apply to have the default judgment of the lower court set aside?
(ii) Is the appeal competent without an application to have the judgment of the lower court set aside?
(iii) Whether the appellant can raise the issue of consent of the relevant authority to alienate land for the first time on appeal without leave.
(iv) Whether the Court of Appeal will interfere with the findings of fact by the lower court when they have not been shown to be perverse or against the law or to be inadmissible evidence (sic).
(v) Whether or not the lower court has not bent over backwards to give the appellant fair hearing which opportunity he carelessly squashed.”
I have earlier in this judgment reproduced the grounds of appeal and that it is now elementary and settled law that issues for the determination of an appeal must arise from the grounds of appeal.  Thus issues 1,2 and 3 of the respondent could not arise from the grounds of appeal. See FBN Ltd. v. Owie (1997) 1NWLR (Pt. 484) 744; Okpokiri v.Okpokiri (2000) 3 NWLR (Pt. 649) 461; Merchantile Bank of Nigeria Pic. V Linus Nwobodo (2000) 3 NWLR (Pt. 648) 297 at 305 it was held:
“An issue for determination must arise or derive from the grounds of appeal filed. When an issue or argument is not covered by a ground of appeal in the notice of appeal, it is incompetent and should be struck out by the court …”
A distinction must be made between a notice of preliminary objection to the competence of an appeal under the provisions of Order 3 rule 15 of rules of this court and an issue for the determination of the appeal. While the former deals with the general competence of the appeal, the latter deals with the argument that the appeal may not succeed. See Uzoewulu v. Ezeaka (2000) 14 NWLR (Pt. 688) 629. Where the issues for the determination of an appeal have no link or connection with the grounds of appeal they have no relevance whatsoever to the appeal and shall be discountenanced. See Azaatse v. Zegeor (1994) 5 NWLR (Pt. 342) 76; Animashaun v. University College Hospital (1996) 10 NWLR (Pt. 476) 65.
Accordingly “issues” 1, 2 and 3 formulated by the respondent can only pass as “objections” to the competence of the appeal under Order 3 rule 15(2) aforesaid and cannot be the issues within the meaning of Order 6 of the rules of this court. I accordingly strike them out since the proper procedure under Order 3 rule 15(2) had not been complied with. I shall however discuss issues 4 and 5 at the relevant place.
Now, I shall deal with the issues as formulated by the appellant.
Issue No.1
It is submitted that exhibit 5 the Power of Attorney issued by the appellant to Alpha did not transfer the ownership of the property to Alpha and that the subsequent Power of Attorney Alpha issued to the respondent exhibit 10 is null and void and of no effect. It is further submitted that by section 21 of the Land Use Act, it is prohibited to alienate a Statutory Right of Occupancy either by assignment, mortgage, transfer of possession, sublease or otherwise without the consent of the appropriate authority first had and obtained. It is again argued that exhibit 5 executed by the appellant could not qualify as a deed of legal mortgage which entitled Alpha to further transfer the property to the respondent. It is also submitted that exhibit 5 was registerable instrument and by the provisions of section 6 of Land Registration Law of the former Northern Nigeria applicable to Abuja Federal Capital Territory and Section 13 of the Federal Capital Territory Act, any instrument affecting land must be registered and where it is not registered it becomes inadmissible in any proceedings. See Jinadu Ajao & Others v. Bello Adigun (1993) 3 NWLR (Pt. 282) 389 (1993) 3 SCNJ 1.
It is further submitted that in law a Power of Attorney does not confer, transfer or alienate title to the  donee. See Ude v. Nwara (1993) 2 NWLR (Pt. 278) 638; (1993) 1 SCNJ 77.
For the respondent it is argued that the issue of the consent of the appropriate authority or the issue of the registration of the Powers of Attorney are issues which were not raised at the trial and as such could not be raised at this appeal stage without leave. See British American Insurance Co. v. Omolayo (1991) 2 NWLR (Pt. 176) 721; Edokpolo v. Sem-Edo Wire Ind. Ltd. (1989) 4 NWLR (Pt. 116) 473; Osakwe v. Governor of Imo State (1991) 5 NWLR (Pt. 191) 318.
Now, there is no dispute whatever that the appellant executed exhibit 5 Power of Attorney in favour of Alpha and later Alpha executed a Power of Attorney in favour of the respondent all in respect of same property belonging to the appellant. The issue of consent and registration was clearly fresh issues which did not arise for determination in the court below. In the case of Eze v. A.-G., Rivers State (2001) 18 NWLR (Pt.746) 524 the Supreme Court recently restated the law in raising a fresh point on appeal. The Court of Appeal and the Supreme Court will not allow a party on appeal to raise a question not raised in the court of trial or grant leave to argue new grounds not canvassed in the trial court except where the new grounds involve substantial or procedural points of law which need to be allowed to prevent an obvious miscarriage of justice. Thus the rule is not rigid but flexible and subject to the demands of justice.Where there is merely an omission to raise a legal proposition which can be supported by the facts as found by the trial court without the need for additional evidence an appellate court in the exercise of the discretion and the interest of justice will allow the point to be raised as a fresh issue. See Oredoyin v. Arowolo (1989) 4 NWLR (pt. 114) 172; Orogan v. Soremekun (1986) 5 NWLR (Pt. 44) 688. But where there is no evidence upon which to base the legal proposition, the court will hold that it is too late to raise the point, See Akpene v. Barclays Bank of Nigeria (1977) 1 Supreme Court 47.
Where the legal point cannot be raised without the benefit of additional evidence, the court will refuse leave to argue the fresh point, in the instant case, it shall be necessary to lead evidence of the non-registration of the document and also of failure to obtain consent. In any event, except in some very special circumstances, leave of court must be sought and obtained before a fresh point can be canvassed on appeal.
In the instant case, no leave was sought to raise the issues therefore the arguments of counsel go to no issue.The main issue for consideration is whether exhibit 5 passed title to Alpha. It appears to me that Alpha had been validly appointed as an Attorney and was vested with powers to alienate the property.
But Alpha still remained an agent of the appellant. The law is that there must be strict adherence to authority conferred by Power of Attorney. If the agent in the pretended exercise of authority acts in excess of and outside the reasonable scope of his special powers, a third party may not be able to make the grantor liable. For example a power to sell land belonging to the donor does not give authority to exercise a power of sale vested in the donor as a mortgage or a trustee. See Green v. Whitehead (1930) 1 CH 38. An agent acting under a power of attorney should as a general rule, act in the name of the principal. A deed executed in pursuance of such a power is properly executed in the name of the principal. If the deed is executed in the name of the donee alone without showing that the donee was acting as an agent, the donor may not be held liable. See Vandepitte v. Preferred Accident Ins. Com of New York (1933) AC 70 at 79. No doubt Alpha had the authority to alienate the property but what happened in this case, Alpha claimed to have “exercised its power of sale” because of the default of the appellant to settle his debt. And it did so by executing a Power of Attorney in favour of the respondent. In my view a donee of a Power of Attorney has no authority to “appoint” another agent without express authorisation in the deed, that is, exhibit 5. The Maxim Delegatus Non Protest Delegare applies. Let me recap what I have been trying to point out. Ordinarily Alpha as the donee of the Power of Attorney, exhibit 5, had the authority in its absolute discretion to alienate the donated property by sale thereof in the name of the appellant without any problem. But in the instant case there is no evidence of sale as required by law. What was offered as proof of sale was exhibit 10 which is clearly a Power of Attorney simply granted to the respondent. Even if Alpha had the express authority to appoint the respondent as another agent, the respondent remained an agent of the appellant notwithstanding that the appointment is coupled with interest. In any event, there is no authority to sell property by executing  a Power Attorney. It must be emphasized that the grant of a Power of Attorney transfers no interest in the land.  In my view neither Alpha nor the respondent can claim to be the owners of the property. Though Alpha was validly appointed as agent of the appellant, even though Alpha had interest in the property since they advanced money for the erection of the buildings on the land, yet in law they remained agents of the appellant. The respondents herein under the undisputed facts have no legal right to the property to entitle them to claim declaration of title against the appellant. See Gregory Obi Ude v. Clement Nwara (1993) 2 NWLR (Pt. 278) 638 at 665 NNAEMEKA-AGU stated:
“A Power of Attorney merely warrants and authorises the donee to do certain acts in the stead of the donor and so is not an instrument which confers, transfers, limits, charges or alienates any title to the donee: rather it could be a vehicle whereby these acts could be done by the donee for and in the name of the donor to a third party …. The mere issuance of a Power of Attorney is not per se an alienation or patting with possession ….”
It accordingly follows that Alpha as agent could not transfer what it did not have especially by means of executing a Power of Attorney, even if Alpha had the right to appoint the respondent as agent by the execution of a Power of Attorney, exhibit 10. Before 1 part with this issue, I may mention that since the respondent was not entitled in law to a declaration of title to the land in dispute, the issue of the error in describing the property in exhibit 5 and 10 becomes no longer relevant or important. Accordingly the supplementary briefs filed by counsel on this point on the invitation of the court are unnecessary and I accordingly discountenance the arguments since they can no longer serve any purpose.
Issue No.2
This issue is concerned with the burden of proof that is to say whether the respondent has proved all his allegation to entitle him to judgment. I have while considering the first dealt with the question of the claim of declaration of title to the land and the claim for the payment of the rents. I need not consider them again at this stage, since I have shown that the respondent was not entitled to the claims in law. The respondent was not entitled in law to the declaration since the property never passed to him as an agent, consequently, he was not also entitled to claim the rents because he was never in possession as an owner of the property. What remains is to consider whether there is proof of the alternative claim of N21,238,124.00 in return for relinquishing the claims for ownership of the property.
It is submitted that the loan agreement between the appellant and Alpha was never placed before the trial Judge in evidence. What was placed before the court was exhibit 11 which merely assigned Alpha’s rights to the respondent under the loan agreement, the terms of which were not stated. It is further argued that no statement of account was tendered to show the balance of the sum due to Alpha from the appellant.
For the respondent it is submitted that exhibits 1 and 2 the application for the loan and exhibits 3 and 4 the replies by Alpha constitute the loan agreement and accordingly there was placed before the trial Chief Judge all the conditions of the loan agreement and that there were sufficient facts from the exhibits for the court to come to a decision as to the amount the appellant was owing Alpha.
The finding of the learned trial Judge was on the evidence adduced before him and the presumption is that a finding of fact made by the trial court is correct unless it is shown to be perverse.
Now, the question is, has the respondent proved the alternative claim of N21,238,124.00? Exhibit 11 contains this clause:
“The assignor hereby assigns all rights in the Mortgage/loan transaction between Olorunfemi Gbenga and Alpha Mortgage Finance Co. Ltd ….”
By exhibit 8, the total amount due on the loan agreement was N623,968 as at 12th June, 1993. PW1 in his evidence before the trial court said the amount the appellant was owing on the loan agreement “at the end of the year 1993 N463,725.86 was outstanding.” The loan was said to carry 13 per cent interest and 20 per cent penalty. He further testified “as at June 1996 at the rate Alpha was charging interest the balance was N 18,141,346.84 excluding penalty which penalty ground total was N21,769,616.21″ and this was the alternative claim. That is all the evidence adduced  at the trial.
The learned trial Judge himself has stated when he was discussing the alternative claim””. It appears strange with no explanation from plaintiff or anyone else the silence from July 93 till April 94″ … Plaintiff having stepped unto the shoes of Alpha is entitled to all monies Alpha is entitled to. The question is how much?
Calculation must start from 23/7/93 date of exhibit 9. “The learned trial Judge clearly had doubts as to the correctness of the figure put forward by the respondent. Earlier on he held that” … the plaintiff has not displayed or tendered evidence or even secondary evidence if not original of the loan agreement but exhibits 3, 4, 5, 6, 7, 8 and 9 establish beyond doubt the loan.” He ended up by saying the court has no power to embark on a “frolic of its own in search of the accurate figure” yet he proceeded to accept the figure of PW 1 in the absence of any other figure.
But it must be remembered that this figure was arrived at by the evidence if Alpha had charged interest and full penalty. There was no evidence that Alpha had charged any penalty. The trial court was wrong to have inferred that Alpha or the respondent had charged the penalty. In any event, there is no statement of account the only evidence which one might say credible is the all contained in exhibit 9 which put the total indebtedness and interest as at 31/7/1993 at the sum of N724,828 and the evidence of PW1 that as at the end of the year 1993, what was outstanding was N463,72S.86. Clearly there is doubt and confusion as to how much the respondent was owing Alpha as at the time of filing the writ. In the case of Yesufu v. ACB Ltd. (1976) 4 S.C. 1, it was held by the Supreme Court that the secondary evidence of a bank statement of account is admissible only where it is shown that a certified copy of the statement of account if certified by an official of the bank giving evidence, has been compared with the original. Any statement of account prepared from a voucher is not admissible as secondary evidence of the entries in a banker’s book. See also Yassin v. Barclay Bank (1968) 1 All NLR 171. See also UBN Plc. V Sparkling Brew Ltd. (2000) IS NWLR (Pt. 689) 200. The usual way of proving a debt is by putting in the statement of account or secondary evidence where it is admissible. In the instant case, there is clearly no proof of the loan as required by law.
The finding that the respondent has proved the loan cannot be supported having regard to the evidence. The finding made by the learned trial Judge is in my view perverse and under such circumstances, a Court of Appeal is entitled to interfere with such a finding, and I do so in the instant case. The alternative claim of the respondent on the assigned loan agreement has not been made. I therefore resolve the 2nd issue in favour of the appellant. The evidence of PW 1 the only witness is clearly hearsay evidence as to the amount recoverable by the respondent on the assignment of the debt. Similarly the exhibits do not also qualify as banker’s book within the meaning of Evidence Act. I accordingly resolve the second issue in favour of the appellant and reverse the perverse finding of fact by the trial Judge.
Issue No.3
It is submitted that on a careful examination of the printed record, the appellant was not given fair hearing in the suit. On page 13 of record for example an Enroled Order of the court showed a direction by the court that the appellant be served with a hearing notice to the 23/3/98 for cross-examination of PW1 and apparently the defendant appeared but the court did not sit. The appellant was not ordered to be served with a fresh hearing date and when the matter came up 3/6/98, the court merely adjourned the matter for addresses. On the 3rd of June, the respondent’s counsel simply moved a motion on notice to amend the statement of claim. It was heard and granted that day in the absence of the appellant. It is argued that there is nothing on the record to suggest that the appellant knew that the matter was coming up on the 3/6/98 and that the trial Judge did not satisfy himself that the appellant was served with any hearing notice. It is claimed that by virtue of the decision in Mbadil1uju v. Ezuka (1994) 8NWLR (Pt. 364) 535; (1994) 10 SCNJ 109, the proceedings of that date as well as the judgment based thereon amounted to a nullity.
The respondent argued that the appellant was given every opportunity to defend the action, he simply failed to come to court on the 3/6/98. It is alleged that the appellant had knowledge.
Now, I have checked the record of proceedings and earlier in this judgment I have recorded the number of times the respondent’s counsel asked for adjournment in order to serve the appellant with hearing notice. It is clear that what transpired in court on the 23/3/1998 was not recorded, the matter came up again on the 6/5/1998 and there is no evidence that the appellant was served with hearing notice. Now, fair hearing is a fundamental matter. It is a constitutional requirement that there must be fair hearing in all proceedings before the courts and tribunals, and any decision reached in breach of fair hearing is a nullity. Every party to a suit must be given equal opportunity of being heard. See Okoroike v. Igbokwe (2000) 14 NWLR (Pt. 688) 498; Nwosu v. Nwosu (2000) 4 NWLR (Pt. 653) 351. But where a party simply fails to appear in court and the court proceeded with the matter, it cannot be said the party was not given a fair hearing. See Buzu v. Garabi (2000) 13NWLR (Pt.684) 228; Otu v. Udonwa (2000) 13 NWLR (Pt. 683) 157.
In the instant case, I am of the view that when the court failed to sit on 23/3/1998, hearing notice ought to be served on the appellant.
In the record, there is no evidence of such service, the matter was simply called on 3/6/1998 and the proceedings continued. I am of the view that the 3/6/1998 and all the subsequent matters that took place including the addresses and judgment was a nullity. See Ude v. A.-G., Rivers State (2002) 4 NWLR (Pt. 756) 66. 1 also resolve the 3rd issue in favour of the appellant.
All the issues having been resolved against the respondent, this appeal succeeds and is allowed by me. The decision of the trial court Saleh CJ delivered on the 22nd day of June, 1996 is hereby set aside. In its place I dismiss in its entirety the claims of the respondent and I also strike out the counter-claim of the appellant.
Each party shall bear costs in the court below and I award N7,500.00 costs in favour of the appellant including out of pocket expenses.

BULKACHUWA, J.C.A. I have read before now the leading judgment just delivered by my Lord Musdapher, JCA and 1 agree entirely with the reasons and the conclusions reached therein in allowing the appeal. The appeal is meritorious and should be allowed.
I hereby allow the appeal. I abide by all the consequential orders made in the lead judgment including orders as to costs.

ODUYEMI, J.C.A. I have had the privilege of reading in advance, the judgment just delivered by my learned brother, Dahiru Musdapher, J.C.A.
His Lordship has dealt with all the issues that need be discussed in the judgment. I adopt his reasoning as mine. I agree that the appeal succeeds. I allow the appeal and abide with the order as to costs.

Appeal allowed

 

Appearances

J O. Adesina, Esq.For Appellant

 

AND

Isaac Okpanachi, Esq.For Respondent

 

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