GLOBAL FLEET OIL & GAS LTD v. IFEANYI (2021)

GLOBAL FLEET OIL & GAS LTD v. IFEANYI

(2021)LCN/15111(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Monday, March 29, 2021

CA/L/1203/2014

Before Our Lordships:

Biobele Abraham Georgewill Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

GLOBAL FLEET OIL & GAS LTD APPELANT(S)

And

CHUKWURAH I. IFEANYI RESPONDENT(S)

RATIO

CONSEQUENCE OF A PROCEEDING CONDUCTED IN BREACH OF THE RIGHT TO FAIR HEARING OF A PARTY

In law, the effect of such a breach when established is far reaching as it renders any such proceeding, no matter how meticulous, and the resultant judgment or decision, no matter how sound, a nullity. See Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276. See also Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595; Ovunwo & Anor. V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522; Pan African Incorporation & Ors. V. Shoreline Lifeboat Ltd & Anor (2010) All FWLR (Pt. 524) 56; Acton Congress of Nigeria V. Sule Lamido & Ors (2012) 8 NWLR (Pt. 1303) 560 @ P. 593; Judicial Service Commission of Cross-River State & Anor V. Dr (Mrs) Asari Young (2013) 11 NWLR (Pt. 1364) 1. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

WHETHER THE COURT AS WELL AS THE PARTIES ARE BOUND BY THE RECORD OF PROCEEDINGS

It is trite that parties are bound by the record of proceedings and so also is an appellate Court bound by the Record of Appeal as compiled and transmitted to it and therefore cannot go outside the contents of the Record of Appeal to decide on issues in contention in the appeal between the parties before it. See Agbeotu V. Brisibe (2005) 10NWLR (Pt. 932), see also Idakula V. Richards (2001) 1 NWLR (Pt. 693) 111, UBA Plc V. Ujor (2001) 10 NWLR (Pt. 722) 589, Mokwe V. Williams (1997) 11NWLR (Pt 528) 309, Odofin V. Agu (1992) 3 NWLR (Pt. 229) 315. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

BURDEN PLACED ON A PARTY WHO CHALLENGES THE CORRECTNESS OR OTHERWISE OF A RECORD OF PROCEEDINGS OF A COURT

It is also the law that it is the party who challenges the correctness or otherwise of a record of proceedings of a Court that is under a duty to swear to an affidavit and serve on the Court and Judge that they may either accept or counter the allegation of incorrectness of the record of proceedings. Where such a party fails to fulfil these conditions precedent, the record of proceedings which by law is presumed to be correct unless and until it is rebutted as allowed by law, remains correct and binding. However, where an affidavit challenging it is filed and the Court or Judge, upon which it was served, either fails or refuses to file a counter-affidavit in rebuttal or files an affidavit of facts in support of the challenge, then the correction sought to be made by the party who challenged the record of proceedings shall be accepted by the Court as correct and shall be reflected as the correct record of proceedings of the Court. See Ogli Oko Memorial Farms Ltd & Anor V. NACB Ltd & Anor (2008) LPELR – 2306 (SC). The law on the procedural requirements and steps necessary to be taken by party who intended to challenge the record of any Court proceedings have been well settled and it is that a party who intends to challenge the record of proceedings of a Court must file an affidavit challenging the record of proceedings setting forth the particulars of the challenge against the record of proceedings of the Court. The affidavit when filed shall be served on the Court and Judge whose record is being challenged. Upon service on the Court and Judge, it is left for the Court and or Judge to file if they so desire to contest the challenge to the record of proceedings, a counter-affidavit debunking the challenge or affidavit of facts accepting the particulars of the challenge to their record as pointed out by the party so challenging the record of proceedings. See Ojengbede V. Esan & Ors (2001) 18 NWLR (Pt. 746) 771. See also Chief of Army Staff V. Isah (2017) LPELR – 41979 (CA). PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

IMPORTANCE OF THE OBSERVANCE OF THE PRINCIPLE OF FAIR HEARING

My Lords, the principle of fair hearing for a party to be fairly heard by being given the opportunity to be heard before decision affecting his civil rights and obligations are reached by a Court of law, is not only fundamental to adjudication but also a constitutional requirement which cannot be legally wished away. Indeed, it is a fundamental right of universal application and must be scrupulously observed by the Court in all proceedings, without exception, before it. See J.O.E. Co. Ltd V. Skye Bank Plc (2009) 6 NWLR (Pt. 1138) @ p. 518. See also Robert C. Okafor & Ors V. AG and Commissioner for Justice Anambra State (1991) 6 NWLR (PT. 200) 659.However, in considering whether or not a proceeding and or judgment or decision of a Court was in breach of the right to fair hearing of a party, it is the law that each allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case. This is so because fair hearing is primarily a matter of fact. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constituted a breach of the party’s right to fair hearing. See Newswatch Communications Limited V. Alhaji Ibrahim Atta (2006) 12 NWLR (Pt. 993) 144. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

EFFECT OF THE DENIAL OF FAIR HEARING ,AS GUARANTEED UNDER SECTION 36(1) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999 (AS AMENDED) , OF A PARTY ON A COURT PROCEEDING

There is nowhere throughout the Record of Appeal in which there was any proceedings in this case before the Court below whether as to the hearing of any of these applications filed one each by the Appellant and the Respondent or as to the hearings of the Respondent’s Suit by the Court below. There can be no doubt that fair hearing is in most cases synonymous with natural justice, an issue which clearly is at the threshold of our legal system. Thus, once there has been a denial of fair hearing as guaranteed under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the whole proceedings automatically becomes vitiated. A denial of fair hearing can ensure from the conduct of the Court in the hearing of a case. This seems to me to be the gravamen of the instant appeal, which is directed not so much as the merit or otherwise of the Respondent’s case but primarily aimed at the proceedings and judgment of the Court below. The true test of fair hearing therefore is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case. See Otapo V. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Wilson V. AG of Bendel State (1985) 1 NWLR (Pt. 4) 572. See also A. U. Amadi V. Thomas Aplin & Co Ltd (1972) All NLR 413; Mohammed Oladapo Ojengbede V. M.O. Esan & Anor (2001) 18 NWLR (Pt. 746) 771. PER BIOBELE ABRAHAM GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the National Industrial Court of Nigeria, Lagos, Lagos Judicial Division; Coram: B. B. Kanyip J., (as he then was but now President, NICN) in Suit No. NIC/LA/226/2011: Chukwurah I. Ifeanyi V. Global Fleet Oil & Gas Ltd delivered on 13/5/2013, in which the claims of the Respondent as Claimant were granted against the Appellant as Defendant.

The Appellant was peeved by the said judgment and had promptly appealed against it vide its Notice of Appeal filed on 3/6/2013 on one Ground of Appeal at pages 64 – 66 of the Record of Appeal. The Record of Appeal was compiled and transmitted to this Court on 18/12/2014 but was deemed properly transmitted on 27/1/2021. Subsequently and with the leave of this Court, an Amended Notice of Appeal was filed on 27/6/2019 on three Grounds of Appeal but was deemed as properly filed on 27/1/2021. The Appellant’s brief was filed on 24/4/2019 but was deemed as properly filed on 27/1/2021. The Respondent’s brief was filed on 31/5/2019 but was deemed as properly filed on

27/1/2021. The Appellant’s reply brief was filed on 26/1/2021 but was deemed as properly filed on 27/1/2021.

At the hearing of this appeal on 27/1/2021, Mofesomo Tayo – Oyetibo Esq., learned counsel for the Appellant adopted the Appellant’s brief and the reply brief as his arguments and urged the Court to allow the appeal and set aside the judgment of the Court below. On his part, Chukwudi Ajaegbo Esq., learned counsel for the Respondent adopted the Respondent’s brief as his arguments and urged the Court to dismiss the appeal and affirm the judgment of the Court below.

By a complaint filed on 21/12/2011, the Respondent as Claimant commenced an action against the Appellant as Defendant claiming the following reliefs, namely:
1. Whereof the Claimant claims against the Defendant the sum of N1,663,931.86 only being money owing by the Defendant to the Claimant arising from the Defendant’s deductions of Car Loan from the Claimant’s salary without providing value for same from November 2005 to January 2011 totaling N1,385,000.11k and the additional sum of N778, 931.75 owing by the Defendant to the Claimant from November 2009

to 1/2/2011, which sum is due and payable by the Defendant to the Claimant.
2. The claimant further claims interest on the aforesaid stated amount owing at the rate of 10% per month from January, 2011 until judgment is delivered in the case. See pages 1 – 10 of the Record of Appeal.

BRIEF STATEMENT OF FACTS
The gist of the case of the Respondent, as Claimant before the Court below as can be gleaned from the averments in the Statement of Facts as in the Record of Appeal was that the Respondent was a staff of the defendant from August 2005 until the 1/2/2011 when the Appellant relieved him of his service. The Appellant at the time the Respondent was working with it as its staff made deductions from his monthly salary from July, 2008 – January, 2011 for purposes of providing a car for him but the Appellant did not provide the said vehicle to him until he was relieved of his services. The Appellant had also monthly deductions from the Respondent’s salary from July, 2009 – January, 2011 to pay for the Appellant’s own share of Employer Pension Contribution but had failed to remit the said amount. The Respondent claimed that at the time of

the withdrawal of his services by the Appellant on 1/2/2011, the Appellant had deducted a total sum of N1,663, 931. 86 from the Respondent’s salaries made up of N1, 385,000.11 and an additional sum of N778,931 on 1/2/2011, which sums are due and payable by the Appellant to the Respondent. The Appellant also refused to pay any terminal benefits to the Respondent without justification and had also failed and refused to refund to the Respondent the monies it had unlawfully deducted from his salaries despite repeated demands. The Respondent and his other colleagues affected by the same act of wrongful termination and refusal to refund unlawfully deducted monies from their respective salaries wrote a Petition to the Mediation Centre, Ministry of Justice, Lagos State, where the matter was subsequently referred to the Office of the Public Defender, Ministry of Justice, Lagos State but all to no avail for the amicable resolution of the issues with the Appellant, hence the action in the Court below against the Appellant.

However, the case of the Respondent in this appeal is that before the Court below, several other ex-employees colleagues of the

Respondent also filed similar suits against the Appellant on similar facts and that it was with the consent of the respective parties in all these sister cases and their respective counsel that the Court below had on 13/5/2013 applied the decision in one of the sister case to also determine this Respondent’s Suit against the Appellant.

On the other hand, the gist of the case of the Appellant as Defendant before the Court below as can be gleaned from the averments in its Statement of Defense as in the Record of Appeal was that the Respondent was its former employee between June, 2009 and January, 2011 and that deductions were made from the Respondent’s salaries for the provision of comfortable and most satisfactory means of transportation in form of a staff bus which conveyed the Respondent to and from work as well as other places of official assignments. It denied any liabilities to the Respondent whose services were terminated because his services were no longer required by the Appellant.

However, the case of the Appellant in this appeal is that both the Respondent’s application for summary judgment against the Appellant and the

Appellant’s own application to call an additional witness were neither listed nor heard by the Court below and that neither of the parties testified nor called any of their witnesses to testify in this Suit before the Court below before it entered its judgment against the Appellant.

At the Court below, the Respondent had filed an Application for summary judgment against the Appellant praying for judgment against the Appellant on the ground that the Appellant has no real defense to the claims of the Respondent. On 8/3/2012, the Appellant entered a conditional appearance to the suit of the Respondent and also filed its Statement of Defense. On 10/10/2012, the Appellant filed an application for leave of the Court below to call an additional witness but the application was neither listed nor heard by the Court below and on 13/5/2013, the Court below entered judgment in favor of the Respondent against the Appellant in line with its judgment in another sister Suit filed by one of the ex-staff – colleague of the Respondent against the Appellant, hence this appeal. See pages 7 – 8, 9 – 10, 27 – 29, 43, 46 – 47, 62 – 63 and 64 – 66 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, two issues were distilled as arising for determination from the three Grounds of Appeal namely:
1. Whether in the delivery of its judgment of 13/5/2013, the failure of the Court below to afford the Appellant the opportunity to be heard in relation to the Respondent’s claims is not a violation of the Appellant’s right to fair hearing? (Distilled from Grounds one and two)
2. Whether the decision of the Court below to give judgment in the substantive Suit despite the pendency of the Appellant’s application filed on 10/10/2012 to call an additional witness was not a violation of the Appellant’s right to fair hearing? (Distilled from Ground three)

In the Respondent’s brief, two issues were also distilled as arising for determination in this appeal, namely:
1. Whether or not the delivery of judgment by the Court below violated the Appellant’s fundamental right to fair hearing?
2. Whether or not the pendency of Appellant’s application to call an additional witness ought to vitiate the judgment of the Court below?

I have given due considerations to the fact and circumstances of this appeal, the judgment of the Court below and the submissions of counsel in their respective briefs and I am of the view that the two issues for determination as distilled in the Appellant’s brief best represent the real issues for determination in this appeal. In my view, a consideration of these two issues would invariably involve a consideration of the two issues as distilled in the Respondent’s brief. I hereby set down the Appellant’s two issues as the issues for determination in this appeal.

ISSUE ONE
Whether in the delivery of its judgment of 13/5/2013, the failure of the Court below to afford the Appellant the opportunity to be heard in relation to the Respondent’s claim is not a violation of the Appellant’s right to fair hearing?

APPELLANT’S COUNSEL SUBMISSIONS
On issue one, learned counsel for the Appellant had submitted that in law, in the determination of its civil rights and obligations by the Court, the Appellant is entitled to a fair hearing and contended that it is the duty of the Court to preserve this right and to see to it that

the Appellant is not precluded from its exercise of the right in any manner otherwise than as provided in the Constitution and urged the Court to hold that a breach of this right would render the proceedings as well as the judgment of a Court a nullity liable to be set aside on appeal. Counsel referred to Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and relied on Newswatch Communications Ltd V. Atta (2006) LPELR – 1986 (SC); Adigun V. AG. Oyo State (1987) 1 NWLR (Pt. 53) 674.

It was also submitted that a Court of Law is under a duty to hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case and shall give equal treatment, opportunity and consideration to all parties and contended that whilst the parties had filed and exchanged all necessary processes in the Suit before the Court below they were neither heard nor allowed to present their respective cases as pleaded by them before the Court below proceeded to deliver its judgment in favor of the Respondent without given neither any hearing to the Appellant nor

considering its defenses in the judgment and urged the Court to hold that the judgment of the Court below having been reached in breach of the Appellant’s right to be heard on its defense before any decision affecting its civil rights and obligations is reached was a nullity and liable to be set aside and to allow the appeal and set the null judgment of the Court below. Counsel relied on Kotoye V. CBN (1989) 1 NWLR (Pt. 98) 419; A.G. Rivers State V. Ude (2006) 17 NWLR (Pt. 1008) 436; Achuzia V. Ogbomah (2016) LPELR – 40050 (SC); Ogli Oko Memorial Farms Limited & Anor V. Nigerian Agricultural And Co-Operative Bank Limited (2008) 12 NWLR (Pt. 1098) 1.

It was further submitted that there is no rule of law or legal precedent that permits a Court to give judgment against a party without that party first being given the opportunity to present its case and contended that a Court of law was under a duty to hear a party willing to conduct his case and to consider the case of respective cases of the parties in its judgment before reaching its decisions and urged the Court to hold that the judgment delivered by the Court below fell far short of a valid

judgment in which the respective cases of the parties were given due consideration and reasons proffered before a decision one way of the other was reached and to allow the appeal and set aside the null judgment of the Court below. Counsel relied on Ogboru V. Uduaghan (2012) LPELR – 8287 (SC); Ogba & Ors. V. Onwuzo & Anor (2005) LPELR – 2272 (SC); Nigerian Army V. Aminun – Kano (2010) LPELR – 2013 (SC).

It was also further submitted that from the contents of the judgment of the Court below it was based on the alleged similarity between this case and the case ofIroko Lateef V. Global Fleet Oil and Gas Ltd, on the alleged agreement of parties and counsel and the application of Section 12(2)(a) of the National Industrial Court Act and contended that in law, none of these were legal basis for a valid judgment of a Court of law in that it all amounted to mere denial of the right of fair hearing to the Appellant by the Court below as there were no any such agreement of the parties and counsel in the Record of Appeal and or any relationship shown between the facts of these two cases and urged the Court to hold that all these issues having been

raised suo motu and decided upon by the Court below without hearing from the parties rendered such a decision a nullity having been reached in breach of the Appellant’s right to fair hearing and to allow the appeal and set aside the null judgment of the Court below. Counsel relied on Olatunji V. Adisa (1995) LPELR – 2577 (SC); Eze V. FRN (2017) 15 NWLR (Pt. 1589) 468; Oyekanmi V. Nepa (2000) LPELR – 2873 (SC); Governor of Gongola State V. Tukur (1989) 4 NWLR (Pt. 117) 592; Kalu V. State (2017) LPELR – 42101 (SC); Ezewanji V. UNN (2017) 18 NWLR (Pt. 1598) 509.

RESPONDENT’S COUNSEL SUBMISSIONS
On his issue one, whether or not the delivery of judgment by the Court below violated the Appellant’s fundamental right to fair hearing, learned counsel for the Respondent had submitted that it was clear to both parties and the Court below that the sister case in Suit No. NIC/LA/222/2011: Iroko Lateef V. Global Fleet Oil and Gas Ltd., were both filed at the Registry of the Court below and forms part of the fact which the Court below can take judicial notice of without necessarily calling further evidence and contended that it was clear that the

sister case of Iroko V. Global Fleet was heard and determined by the same Judge of the Court below and urged the Court to hold that since in law, processes filed at the Registry of a Court is presumed to be before that Court, the Court below was seised of the facts of the two sister cases and was right to have entered judgment in one to bind the sister case on similar facts and between a common Defendant and its ex – employees and to dismiss the appeal and affirm the judgment of the Court below. Counsel referred to Section 122(2) (m) of the Evidence Act 2011 and relied on Governor of Nassarawa State V. Shewaza (2017) LPELR – 44032 (CA); Nitel V. Mayaki (2007) 4 NWLR (Pt. 1023) 173.

It was also submitted that since both sister cases have a common Defendant and were before the same Judge of the Court below, it was indubitable that the Court below was fully seised of the facts of both cases and contended that the fact of the similarities between these two sister cases and the inferences drawn therefrom by the Court below does not amount to raising any issue suo motu and urged the Court to so hold and to dismiss the appeal and affirm the judgment of the Court

below. Counsel relied on Dantiye V. Kanya (2008) LPELR – 4021 (CA); Olalomi V. NIDB (2009) 16 NWLR (Pt. 1167) 266 @ P. 304; Adeoye V. Oju (2018) LPELR – 44976 (CA).

It was further submitted that the submission by the Appellant’s counsel that there was no agreement reached by parties that the decision in one of these two sister cases should bind the other sister case was a bare face denial of the true facts of what transpired at the Court below and contended that in law, the Appellant who seeks to contradict the Record of Proceedings of the Court below was under a duty, but which it failed to discharge, to adduce evidence to challenge the correctness of the record of proceedings before the Court below by furnishing an affidavit to that effect and urged the Court to hold that the parties are bound by what transpired before the Court below and that the clerical error in the use of the word ‘bind’ by the Court below which was a mere accidental slip was neither substantial nor did it affect the validity of the judgment of the Court below and to dismiss the appeal. Counsel referred toBabalola’s Law Dictionary, @ P. 6, and relied on

Jabre V. Jabre (1999) 3 NWLR (Pt. 596) 606; Onah V. Okenwa (2010) LPELR – 4781 (CA); Gov. Kwara State V. Lafiagi (2005) 5 NWLR (Pt. 917) 139; Sommer V. Federal Housing Authority (1992) 1 NWLR (Pt. 219) 548; Gambo V. Doka (2016) LPELR – 40251 (CA); Agbeotu V. Brisibe (2005) All FWLR (Pt.257) P.145 @ p. 1481; Adegbuyi V. APC (2014) LPELR – 24214 (SC); Chrome Air Services Ltd V. Fidelity Bank (2014) LPELR – 24099 (CA); Stirling Civil Engineering Nig. Ltd V. Ambassador Mahmood Yahaya (2005) 11 NWLR (Pt. 935) 181.

It was also submitted that in law, the right to fair hearing can be waived and contended that where a Court has given every opportunity to a party to be heard but that party decides not to utilize it, he will be deemed to have waived his right and cannot be heard to complain that his right to fair hearing was breached and urged the Court to hold that since it is on unchallenged record that the parties and their counsel consented to the Court below applying the decision in the sister case ofIroko V. Global Fleet, then the Appellant cannot now complain of denial of fair hearing and to dismiss the appeal and to affirm the judgment of the Court

below. Counsel relied on Egboma V. State (2013) LPELR – 21358 (CA).

It was also further submitted that there was in law no need for the Court below to call on the parties to address it when the issue merely relates to the application of the Law setting it up in relation to how it regulates its own proceedings and contended that in law, a Court can raise an issue of law or jurisdiction suo motu and decide upon it without hearing the parties before it and urged the Court to hold that the Appellant neither alleged nor showed any miscarriage of justice from the reliance of the Court below on the provision of its enabling Law and to dismiss the appeal and affirm the judgment of the Court below. Counsel referred to Section 12(2)(a) of the National Industrial Court Act and relied on Omokuwajo V. Federal Republic of Nigeria (2013) 9 NWLR (Pt. 1359) 300; Otu V. Ani (2013) LPELR – 21405 (CA); Imah V. Okogbe (1993) 9 NWLR (Pt. 316) 156; Olubode V. Salami (1985) 2 NWLR (Pt. 7) 282; Mora V. Nwalusi (1962) All NLR 681; Atoyebi V. Gov., Oyo State (1994) 5 SCNJ 62; Ibrahim V. JSC Kaduna State (1998) 14 NWLR (Pt.584) 1; Ogembe V. Usman (2011) 17 NWLR (Pt. 1277) 638;

Eze V. Federal Republic of Nigeria (2017) LPELR – 42097(SC).

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply submissions, learned counsel for the Appellant had reiterated his earlier submissions and further submitted that there was no basis for the application of any rule of judicial notice since there is nothing in the Record of Appeal to show that the sister case of Iroko V. Global Fleet have similar facts for which any judicial notice ought to be taken thereof by the Court below and contended that the Court below was under a duty to consider each case based on its peculiar and particulars facts and urged the Court to hold the Court below merely abandoned the consideration of the Appellant’s defense and thereby breached its right to fair hearing and to allow the appeal and set aside the null judgment of the Court below. Counsel referred to Order 19 Rules 9 and 13 of the Rules of the National Industrial Court and relied on Adegoke Motors Ltd V. Adesanya (1989) 3 NWLR (Pt. 109) 250.

It was reiterated that in law, the Court below had no power to raise issues, including the applicability of Section 12(2)(a) of the National Industrial Court Act

and resolving them without calling on the parties to address it and contended that it amounted to denial of the Appellant’s right to fair hearing and which rendered the entire proceedings and judgment of the Court below a nullity and urged the Court to so hold and to allow the appeal and set aside the judgment of the Court below. Counsel relied on Madukolu V. Nkemdilim (1962) 2 SCNLR 341; Adebayo & Ors V. PDP & Ors (2013) LPELR – 20342 (SC); Oshoboja V. Amuda 1992 LPELR – 2804 (SC).

RESOLUTION OF ISSUE ONE
My Lords, issue one deals with the vexed issue of when in law can the proceedings of a Court and the resultant judgment be said to be in breach of the right to fair hearing as constitutionally guaranteed to the citizens of this Country in the determination of their civil rights and obligations before a Court of law. In law, the effect of such a breach when established is far reaching as it renders any such proceeding, no matter how meticulous, and the resultant judgment or decision, no matter how sound, a nullity. See Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276. See also Amadi V. INEC (2013) 4 NWLR (Pt. 1345) 595;

Ovunwo & Anor. V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522; Pan African Incorporation & Ors. V. Shoreline Lifeboat Ltd & Anor (2010) All FWLR (Pt. 524) 56; Acton Congress of Nigeria V. Sule Lamido & Ors (2012) 8 NWLR (Pt. 1303) 560 @ P. 593; Judicial Service Commission of Cross-River State & Anor V. Dr (Mrs) Asari Young (2013) 11 NWLR (Pt. 1364) 1.

Now, the issue here is whether the judgment of the Court below delivered on 13/5/2013, in which the Court below alluded to its judgment in a sister case brought by another ex-employee of the Appellant and held that it was to bind the decision in this case as agreed by the parties and their counsel due to the similarities between the two cases and upon invocation of the provision of Section 12 (2) (a) of the National Industrial Court Act which confers on the Court below the powers to regulate its own proceedings where there are no specific rules to govern such circumstances, amounted to a denial of the right to fair hearing of the Appellant as constitutionally guaranteed to it by Section 36(1) of the Constitution of Nigeria 1999 (as amended)?

While the Appellant had vehemently contended that there was no such agreement between the parties that the judgment in the sister case of Iroko V. Global Fleet should bind its case and thus depriving it of the opportunity of presenting its defence to the claims of the Respondent against it and thereby denied it of its right to fair hearing, it was equally vehemently contended by the Respondent that the facts in both cases filed by co ex-employees of the Appellant were similar and the Court below was right as agreed by the parties to have made the other case of Iroko V. Global Fleet to be applicable to the case filed on similar facts by the Respondent against the same Defendant, the Appellant and thereby expeditiously determining both cases based on similar facts which did not in any way amounted to a breach of the right to fair hearing of the Appellant.

I am aware that the proceedings, the subject matter of this appeal was one commenced by way of a complaint before the Court below and in which the parties filed and exchanged their pleadings by way of Statement of Facts by the Respondent as Claimant or Applicant and Statement of Defence by the Appellant as

Defendant or Respondent. A cursory look at these pleadings shows clearly that the parties had joined issues on the monetary claims of the Respondent made against the Appellant. Thus issues were joined on the right of the Respondent’s entitlement to the monetary claims he made against the Appellant, his former employer and which claims were unequivocally denied by the Appellant in its Statement of Defence. The parties also have pending before the Court, two applications, one each by the Appellant for leave to call an additional witness and by the Respondent for summary judgment, both of which there is no record in the Record of Appeal of their having been heard and determined by the Court below.

It was on the above state of the pleadings and proceedings that the Court below had on 13/5/2013, in its judgment granting the reliefs claimed by the Respondent as Claimant against the Appellant as Defendant, held inter alia thus:
“The claims of the claimant as per the complaint filed in this Court on 21/12/ 2011…. The facts of this case, the originating processes (except for the actual sums claimed) and the defense processes as well as

the submissions filed by the parties are similar to those filed in Mr. Iroko A. Lateef V. Global Fleet Oil & Gas Ltd Suit No. NIC/LA/222/2011. By agreement of counsel and the parties and the authority of Section 12(2)(a) of the National Industrial Court (NIC) Act 2006, which permits the Court to “regulate its procedure and proceedings as it thinks fit, it was agreed that the decision in Mr. Iroko A. Lateef V. Global Fleet Oil & Gas Ltd Suit No. NIC/LA/222/2011 just delivered should abide by the instant case. It should however be noted that the claimant’s employment by Exhibit A commenced on 9/11/2009 and terminated by Exhibit B on 1/2/2011. The benchmark for calculating the claims of the claimant shall be November 2009 to January 2011 i.e. 15 months. In consequence and for all the reasons given in Mr. Iroko A. Lateef V. Global Fleet Oil & Gas Ltd Suit No. NIC/LA/222/2011, judgment is hereby entered for the claimant…” See pages 62 – 63 of the Record of Appeal.

Now, not only had the parties duly joined issues in their pleading for which ordinarily a trial at plenary is the next course open to the Court below to hear the evidence

of the parties, for which they had also filed both list of witnesses and their written statements on oath, in order to determine their right and liability over the subject matter of the claims of the Respondent, there were also two applications, one filed by the Respondent for summary judgment and one filed by the Appellant for leave to call an additional witness.

I have scanned through the Record of Appeal and I cannot find anywhere either of these two applications were moved and determined by the Court below or withdrawn by the parties and struck out by the Court below to pave way for hearing of the Respondent’s Suit at plenary before the Court below. I have also taken time to scan through the entire Record of Appeal to see for myself when the parties and their respective counsel agreed, as alluded to in the judgment of the Court below, to be bound in this case by the judgment to be delivered in the case of Iroko V. Global Fleet, filed by a co ex-employee of the Respondent with the Appellant.

In the instant appeal, there is no record throughout the Record of Appeal of any proceedings in which the parties to this appeal, as parties before

the Court below and or their respective counsel agreed that the judgment in the case of Iroko V. Global Fleet should bind the judgment in this case. In other words, whatever judgment is reached by the Court below in the case of Iroko V. Global Fleet shall bind the judgment in this case. The Court below is a Superior Court of Record created by the Constitution of Nigeria 1999 (as amended). Thus, such an important agreement as alluded to in the judgment of the Court below ought to and must be manifest and seen in its record of proceedings. Indeed, agreements of any kinds or nature between parties are not reached by them inside the judgments of the Courts and a Court has no power to create any agreement for parties solely in its judgment and proceed to enforce such agreement for them without the ad idem of the parties. See Section 254(A) of the Constitution of Nigeria 1999 (as amended). See also Confitrust Nig. Ltd V. Emmax Motors Ltd & Ors (2016) LPELR – 41428 (CA) per Georgewill, JCA; Nwankwo V. E. D. U. S. U. A. (2007) 5 NWLR (Pt. 1024) 377; Larmie V. D. P. M. S. Ltd (2005) 18 NWLR (Pt. 985) 438.

In law, looking at the issues in this appeal and the

divergent contentions of the parties on the fact of the agreement alluded to in the judgment of the Court below, it is my view and I so hold that the onus was on the Respondent who alleges that there was an agreement of the parties to be bound in this case by the judgment of the Court below in the case of Iroko V. Global Fleet and not on the Appellant who had allege that there was no such agreement. This, the Appellant could easily and readily do by pointing out to this Court the relevant date of proceedings before the Court below when the alleged agreement was reached between the parties and with the leave of the Court below to that effect. It is trite that parties are bound by the record of proceedings and so also is an appellate Court bound by the Record of Appeal as compiled and transmitted to it and therefore cannot go outside the contents of the Record of Appeal to decide on issues in contention in the appeal between the parties before it. See Agbeotu V. Brisibe (2005) 10NWLR (Pt. 932), see also Idakula V. Richards (2001) 1 NWLR (Pt. 693) 111, UBA Plc V. Ujor (2001) 10 NWLR (Pt. 722) 589, Mokwe V. Williams (1997) 11NWLR (Pt 528) 309, Odofin V. Agu (1992) 3 NWLR (Pt. 229) 315.

the record of any Court proceedings have been well settled and it is that a party who intends to challenge the record of proceedings of a Court must file an affidavit challenging the record of proceedings setting forth the particulars of the challenge against the record of proceedings of the Court. The affidavit when filed shall be served on the Court and Judge whose record is being challenged. Upon service on the Court and Judge, it is left for the Court and or Judge to file if they so desire to contest the challenge to the record of proceedings, a counter-affidavit debunking the challenge or affidavit of facts accepting the particulars of the challenge to their record as pointed out by the party so challenging the record of proceedings. See Ojengbede V. Esan & Ors (2001) 18 NWLR (Pt. 746) 771. See also Chief of Army Staff V. Isah (2017) LPELR – 41979 (CA).

In the light of the above position of the law on the Record of Appeal, I have no difficulty finding as fact that there was no such agreement between the parties that the judgment in the case of Iroko V. Global Fleet shall bind the judgment in this case. Thus, the allusion to such

non-existent agreement in the judgment of the Court below goes to no issue in the due resolution of the crucial issue in this appeal as to whether the judgment of the Court below delivered on 13/5/2013 without hearing the respective cases of the parties in this appeal, who were before it as Claimant and Defendant was a nullity as vehemently contended by the Appellant or not a nullity as equally vehemently contended by the Respondent?

decision of a Court was in breach of the right to fair hearing of a party, it is the law that each allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case. This is so because fair hearing is primarily a matter of fact. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constituted a breach of the party’s right to fair hearing. See Newswatch Communications Limited V. Alhaji Ibrahim Atta (2006) 12 NWLR (Pt. 993) 144.I have given considerable thoughts to the submissions of counsel in their respective briefs on the applicable principles of law as to what would constitute a breach of the right to fair hearing, as constitutionally guaranteed to the parties before the Courts. I have also taken time to consider the entirety of the proceedings before the Court below from the filing of the complaint and statement of facts by the Respondent on 21/12/2011 to the filing of his application on 21/12/2011 for summary judgment against the Appellant to the Appellant’s filing of its conditional

appearance and Statement of Defense on 8/3/2012 to the Appellant’s filing of an application on 10/10/2012 for leave of the Court below to call an additional witness. See pages 7 – 8, 9 – 10, 27 – 29, 43, 46 – 47, 62 – 63 and 64 – 66 of the Record of Appeal.
There is nowhere throughout the Record of Appeal in which there was any proceedings in this case before the Court below whether as to the hearing of any of these applications filed one each by the Appellant and the Respondent or as to the hearings of the Respondent’s Suit by the Court below. There can be no doubt that fair hearing is in most cases synonymous with natural justice, an issue which clearly is at the threshold of our legal system. Thus, once there has been a denial of fair hearing as guaranteed under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the whole proceedings automatically becomes vitiated. A denial of fair hearing can ensure from the conduct of the Court in the hearing of a case. This seems to me to be the gravamen of the instant appeal, which is directed not so much as the merit or otherwise of the Respondent’s case but

primarily aimed at the proceedings and judgment of the Court below. The true test of fair hearing therefore is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case. See Otapo V. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Wilson V. AG of Bendel State (1985) 1 NWLR (Pt. 4) 572. See also A. U. Amadi V. Thomas Aplin & Co Ltd (1972) All NLR 413; Mohammed Oladapo Ojengbede V. M.O. Esan & Anor (2001) 18 NWLR (Pt. 746) 771.
Having considered the entirety of the facts and circumstances of this appeal, as in the Record of Appeal, I cannot but agree with the apt and unassailable submissions of learned counsel for the Appellant that in the determination of the Appellant’s civil rights and obligations by the Court, it is entitled to a fair hearing and it was incumbent on the Court below to preserve this right and to see to it that the Appellant is not precluded from the exercise of its right to fair hearing in any manner inconsistent with the sacrosanct provisions of the Constitution of Nigeria 1999 (as amended). I therefore have no hesitation holding that the judgment of the Court

below delivered on 13/5/2013 without giving any form of hearing to the claims and defenses of the parties before it was one reached in utter breach of the Appellant’s right to fair hearing and therefore a nullity in law. See Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See also Newswatch Communications Ltd V. Atta (2006) LPELR – 1986 (SC); Adigun V. AG. Oyo State (1987) 1 NWLR (Pt. 53) 674; Kotoye V. CBN (1989) 1 NWLR (Pt. 98) 419; A.G. Rivers State V. Ude (2006) 17 NWLR (Pt. 1008) 436; Achuzia V. Ogbomah (2016) LPELR – 40050 (SC).
In Ogli Oko Memorial Farms Limited & Anor V. Nigerian Agricultural And Co-Operative Bank Limited (2008) 12 NWLR (Pt. 1098) 1, the Supreme Court per Akintan, JSC, had opined inter alia thus:
“It is settled law that the principle of fair hearing is fundamental to all Court procedure and proceedings. Like jurisdiction, the right to fair hearing is both fundamental and constitutional right of every party to a dispute who is to be afforded an opportunity to present his case to the adjudicating authority without let or hindrance from the beginning to the end.

It also envisages that the Court or Tribunal hearing a case should be fair, impartial and without showing any degree of bias against any of the parties. Every party must therefore be given equal opportunity of presenting his case.”
I am unable to find or lay hand on any Rule of the Court below or any legal principles in our civil jurisprudence that permitted the Court below to, in a matter duly pending before it, and in which the parties had filed and exchanged their pleadings as well as having pending applications to give judgment against a party without that party first being given the opportunity to present his case. Indeed, it is a travesty of justice under the guise of expeditious hearing and determination of cases.

I have also looked at the judgment of the Court below as delivered on 13/5/2013 and it appears very clear to me that, perhaps due to the very strange method of agreement of the parties, where none has even been found to exist in the Record of Appeal, the judgment of the Court below, in all its ramification, falls far short of what the law would term or even consider such a judgment of any validity in law. This is so because in

the judgment of the Court below, there was neither a review and or evaluation of any sort of any evidence nor any findings of facts and application of relevant laws to the findings of facts and the reaching of any decisions flowing therefrom. This is the minimum requirement of any valid judgment even though admittedly there is in law no one single form or style of writing judgment by the Courts. See Ogboru V. Uduaghan (2012) LPELR – 8287 (SC). See also Ogba & Ors. V. Onwuzo & Anor (2005) LPELR – 2272 (SC); Nigerian Army V. Aminun – Kano (2010) LPELR – 2013 (SC).
My Lords, having found as above that the judgment of the Court below is a nullity having been reached in utter breach of the Appellant’s right to fair hearing, I consider all the other issues and contentions under issue one between the parties as to the other reason relied upon by the Court below, most of which have turn out to be baseless and non-existent to be neither here nor there. In law, once a judgment is found to be and declared a nullity, then it remains a nullity and no matter whether the reasons contained therein are sound or even impeccable, it remains a nullity!

However, considering for the purpose of completeness in this judgment and for whatever it is worth, the issue of reference and reliance on the provision of Section 12(2)(a) of the National Industrial Court Act by the Court below and whether it amounted to the Court below raising and deciding an issue suo motu without calling on the parties to address it, I find the contentions by the Appellant in this regard as completely misconceived. A Court of law can and do regularly refer to laws and rules of Court as are applicable and relevant in its consideration of matters before it without necessarily calling on the parties or their counsel to address it on such matter of law and or rules.
It would be expecting too much and quite outside the realm of the requirement of the principle of law that a Court of law is not to raise and decide an issue suo motu without calling on the parties to address it to contended, as was erroneously done by the Appellant in this appeal, that a Court of law must call on the parties even before it refers to any Rules of Court or Law in its judgment as in the instant appeal, in which Section 12 (2)(a) of the NICN Act

empowers the Court below to regulate its own proceedings. I think, and I so hold this is pushing the frontiers of these finer principles of the law, geared at protecting the right of the parties to be heard before decision affecting them are reached by the Courts, too far and even beyond its most elastic scope or limit. I refuse to so extend them!
Now, Section 12 (2) (a) of the NICN Act merely empowers the Court below to regulate its own proceedings where there are no specific rules and such a reference by the Court below, averting its mind as it where to its own powers to regulate its own proceedings where no specific rules exists, does not in a anyway, in my finding, amounts to raising an issue and deciding it suo motu by the Court below. Was the Court below, as well as any other Court of law, supposed or indeed obligated to call on parties to address it before it could make reference to its own Rules of practice and procedure, such as Section 12(2)(a) of the NICN Act? I think not! I find this issue as amounting to nothing more than a heavy storm in a tea cup and truly no kind of real storm can occur in a tea cup no matter how hot the water to brew

the coffee is, it would remain nothing but a storm in a tea cup. Indeed, it is merely making a mountain out of a molehill and nothing more!

My Lords, so fundamental and crucial is the right to fair hearing of the citizen before all Courts of the land that a failure by a Court to observe it in the litigation processes would invariably vitiate both the proceedings and judgment of such a Court whose proceedings is affected by the deadly incurable and highly contagious virus of lack or denial of fair hearing, notwithstanding the merit or otherwise of the cases of the parties or indeed how meticulous the proceedings were conducted or even how sound the resultant judgment was on the merit, they are all a nullity. No more! No less!! See Agbogu V. Adiche (2003) 2 NWLR (Pt. 805) 509 @ p. 531. See also Agbapuonwu V. Agbapuonwu (1991) 1 NWLR (Pt. 165) 33 @ p. 40.
I can see some zealousness and very laudable, in the desire of the Court below to ensure an expeditious determination of the Respondent’s claim. Yet, in law, a determination of a case without a hearing is a flawed process in our system of administration of justice, be it civil or criminal.

The law remains deeply rooted in the notion that justice must not, at any time, be sacrificed on the altar of speed since “justice rushed is Justice crushed or denied” even though the common aphorism, now in the nature of a cliché, “justice delayed is Justice denied” also hold true in law. It is thus in the balancing of these two extremes that lies the dexterity of the Courts! See Abubakar V. Yar’Adua (2008) 4 NWLR (Pt. 1078) 465 @ p. 503. See also Uzodinma V. Izunaso (N0. 2) (2011) 17 NWLR (Pt. 1275) 30.

My Lords, even the issue of similarities as alluded to in the judgment of the Court below is not supported by the Record of Appeal in that there is no record of the Complaint and Statement of Facts and the Statement of Defence in the alleged sister case of Iroko V. Global Fleet to enable this Court compare to see if indeed both cases were of similar facts even though filed by both ex-employees of the Appellant against the termination of their services by the Appellant. The Court below did not also set out in its judgment the areas of similarities in the facts as pleaded and relied upon by the parties in both cases.

As I bring the consideration of issue one for determination to its logical conclusion, I thought I should pause and observe, as an aside, that in law employment and its terms are usually specific to an employee, notwithstanding even where there is a collective agreement same must be incorporated into the individual’s letter of engagement or terms of employment. Any wonder then that the parties did not even file their claims against the Appellant jointly but individually and separately. Perhaps, what the Court below ought to and should have done, subject to the Rules of the Court below, was to consolidate all the cases filed by the ex-employees of the Appellant and proceed to hear them together but giving each of the parties the opportunity to present their respective cases and at the conclusion of trial entering judgment in each of the consolidated cases on the strength of the evidence led in each of such cases. Nothing short of this was expected of the Court below, which would have avoided the colossal waste of time, energy and resources resulting from the null judgment of the Court below. I shall say no more on this!

In the light of the findings above, I hold that the judgment of the Court below was reached in utter breach of the Appellant’s right to fair hearing as guaranteed to it by the Constitution of Nigeria 1999 (as amended). It follows therefore that issue one ought to be resolved in favour of the Appellant against the Respondent. Accordingly, I hereby so resolve issue one in favour of the Appellant against the Respondent.

ISSUE TWO
Whether the decision of the Court below to give judgment in the substantive Suit despite the pendency of the Appellant’s application filed on 10/10/2012 to call an additional witness was not a violation of the Appellant’s right to fair hearing?

My Lords, having come to the inescapable conclusion under issue one that the judgment of the Court below is a nullity, that indeed should be end of this appeal since issue two has thereby been rendered merely academic. Courts of law are loath to spend their precious and scarce judicial time considering and resolving merely academic questions in its judgment, which are better left for scholars in the Faculties of Law in our Universities to grapple with. An issue becomes merely

academic once it is no longer of any utilitarian value to the determination of the appeal one way or the other. See Wema Bank Plc V. AKS Steel Limited (2018) LPELR – 44549 (CA) per Georgewill JCA. See also Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853.

However, I am aware that this Court is only but the penultimate Court enjoined and admonished by the Apex Court to consider, as much as practicable, all issues submitted before it by the parties in an appeal. It is in deference to this admonition by the Apex Court that I am proceeding to consider, albeit briefly, issue two for determination and to resolve same in this judgment.

On the one hand, it was vehemently submitted for the Appellant that there was no basis for the application of any rule of judicial notice since there is nothing in the Record of Appeal to show that the sister case of Iroko V. Global Fleet have similar facts for which any judicial notice ought to be taken thereof by the Court below and contended that the Court below was under a duty to consider each case based on its peculiar and particulars facts and urged the Court to hold the

Court below merely abandoned the consideration of the Appellant’s defense and thereby breached its right to fair hearing and to allow the appeal and set aside the null judgment of the Court below. Counsel referred to Order 19 Rules 9 and 13 of the Rules of the National Industrial Court and relied on Adegoke Motors Ltd V. Adesanya (1989) 3 NWLR (Pt. 109) 250; Madukolu V. Nkemdilim (1962) 2 SCNLR 341.

On the other hand, it was equally vehemently submitted for the Respondent that it is not in every circumstances that failure to hear and determine a pending application would vitiate the judgment of a Court and contended that the failure of the Court below to hear and determine the Appellant’s application to call an additional witness did not, in the peculiar circumstances of this case, vitiate the judgment of the Court below in that in law, it was not enough that the Appellant filed its application to call an additional witness but it must be shown on record to have moved the hand of the Court below to hear it and urged the Court to hold that there being no record of any attempt by the Appellant to move its application, the failure by the

Appellant to move it cannot form the basis of any valid complaint of denial of fair hearing against the Court below and to dismiss the appeal and affirm the judgment of the Court below. Counsel relied on Sambo V. Okon (2013) LPELR – 2039 (CA); Ezekiel Okoli V. Morecab Finance Nig. Ltd (2007) 4 -5 SC 116; Obasuyi & Anor. V. Business Ventures Ltd. (2000) 5 NWLR (Pt. 668) 690. Ndukwe V. LPDC (2007) All FWLR (Pt. 359) 1261; Igbolezim V. Ewuru (2013) LPELR – 21211 (CA); Oforkire V. Maduike (2003) 5 NWLR (Pt. 812) 116; Federal college of Education, Okene v Mrs. Irene Ogbonma (2006) LPELR – 5623 (CA); Aga V. Onah (2012) LPELR – 22103 (CA).

In reply on points of law, it was submitted for the Appellant that on the record of proceedings before the Court below, the Appellant never had the opportunity to move its application due to the fact that no form of proceedings other than the judgment were undertaken by the Court below in this case and contended that in law the Appellant could not have moved its application that the Court below did not give it the opportunity to move and urged the Court to hold that in the circumstances, it was unjust to the Appellant for

the Court below to proceed to enter final judgment against the Appellant without first hearing and determining its pending application and to allow the appeal and set aside the judgment of the Court below. Counsel relied on Adebayo & Ors V. PDP & Ors (2013) LPELR – 20342 (SC); Oshoboja V. Amuda 1992 LPELR – 2804 (SC); Adeyemi V. R. S. Ike – Oluwa & Sons Ltd (1993) 8 NWLR (Pt. 309) 27.

RESOLUTION OF ISSUE TWO
My Lords, issue two deals clearly with the settled general position of the law that a Court of law and even a Tribunal set up under law is under a duty to hear and determine all applications pending before it before proceeding to entering its final judgment in other not to deny the right of the parties to fair hearing by a failure to hear and determine applications filed by the parties and pending before the Court for determination. See Dingyadi V. INEC (2010) LPELR – 952 (SC). See also Mobil Producing (Nig.) Ltd. V. Monokpo (2003) 18 NWLR (Pt. 852) 346.
In Afro Continental (Nig.). Ltd & Anor V. Co-Op. Assoc. of Prof. Inc. (2003) LPELR – 217 (SC), the Supreme Court per Mohammed, JSC had reiterated inter alia thus:

“It is settled law and mandatory that a Court must make a decision and pronounce on every application which is before it and failure to do so is a breach of fair hearing.”
Now, the parties are at least ad idem on one thing in this appeal and that is that the Appellant filed an application on 10/10/2012 seeking the leave of the Court below to call an additional witness but that the Court below neither heard nor determined the said application before it entered its final judgment against the Appellant on 13/5/2013, in which judgment it did not also consider and determine the Appellant’s application, which could have remedied the situation since in law, cases in which though a pending application was not formally heard but the issues raised therein are ruled upon in the judgment would not amount to a denial of the right to fair hearing of such a party. See Newswatch Communications Limited V. Alhaji Ibrahim Atta (2006) 12 NWLR (Pt. 993) 144 @ p. 170. See also pages 46 -53 and 61 – 62 of the Record of Appeal.
It is the well settled law that in the adversarial system of administration of justice, which we operate in this Country, a Court

is under a duty to determine every application brought before it one way or the other before proceeding to deliver its judgment and this is so notwithstanding whether such an application was brought at a very late stage of the proceedings or patently irregular even on its face or even frivolous or that the Court has already written its judgment and ready to deliver it. See Federal Airport Authority of Nigeria V. Wamal Express Services (Nig.) Ltd. (2011) 8 NWLR (1249) 219 @ p. 237; Dingyadi V. INEC (2010) 18 NWLR (Pt. 1224) 1; Nwankudu V. Ibeto (2011) 2 NWLR (Pt. 1231) 209; Ibator V. Barakuro (2007) 9 NWLR (Pt. 1040) 475; Adeyemi V. Ike Oluwa & Sons Ltd. (1993) 8 NWLR (Pt. 309) 27; Danmusa V. Inuwa (2007) 17 NWLR (Pt. 1063) 391; Allstate Securities Ltd & Anor v. Adesoye Holdings Ltd. (2013) 16 NWLR (Pt. 1381) 470.
However, as with almost every established principles of law there are exceptions to every known principle of law and thus there exist some excepted circumstances in law when failure to determine a pending application would not ipso facto amount to a breach of the right to fair hearing. These exceptions include the following

circumstances, though not by any means intended to be an exhaustive list of all such excepted circumstances which categories are never close but depend largely on the peculiar facts of each case, namely; In cases in which an Applicant is himself in contempt of the Court. See Mobil Poducing Unlimited V. Simeon Monokpo (2003) 18 NWLR (Pt. 852) 346; In cases in which an Applicant fails or neglects to draw the attention of the Court to the pending application and is thus deemed to have abandoned same. See Elemchukwu Ibator V. Chief Bali Barakuro (2007) 9 NWLR (Pt. 1040) 475; In cases in which though the application was not formally heard but the issues raised therein are ruled upon in the judgment. See Newswatch Communications Limited V. Atta (supra) @ p. 170; In cases where an Applicant in breach of the Rules of the Court in filing the application. See Abia State Transport Corporation & Ors. V. Quorum Consortium Limited (2009) 3 – 4 SC 187.

Regrettably and I say so with great emphasis taking into consideration the almost 10 years that has elapsed between the filing of the Respondent’s Suit before the Court below on 21/12/2011 to the date

the Court below delivered its judgment and now the judgment of this Court delivered today, 29/3/2021, the Appellant’s application to call an additional witness had neither been withdrawn and struck out nor heard and determined but is still pending before the Court below.

Now, it has been argued for the Respondent that the Appellant did not show any record of its effort to move its application and therefore cannot be heard to complain of any denial of the right to fair hearing. In response, it was argued for the Appellant that it could not have moved an application it was not given any opportunity to move by the Court below whose entire proceedings in the case before it was the delivery of its judgment on 13/5/2013.

I have given considerable attention to these divergent contentions of the parties on this issue and since the Record of Appeal binds both the parties and this Court, I have taken a calm look at its entire content and I cannot see any other proceedings of the Court below safe the delivery of its judgment on 13/5/2013 as was rightly contended by the learned counsel for the Appellant. I think all that the Respondent, who had alleged

that it was the fault of the Appellant that its application was not heard because it made no attempt to move it, need do was to point the Court to the any other proceedings conducted by the Court below in this case save the delivery of the judgment on 13/5/2013 as alleged by the Appellant. The Respondent failed to show any record of any other proceedings conducted by the Court below save the delivery of its judgment on 13/5/2013. I find that the Appellant was right when it alleged and proved vide the Record of Appeal that the Court below did not conduct any other proceedings in this case save the delivery of its judgment on 13/5/2013 and therefore, the Appellant neither had nor was given any opportunity by the Court below to move its application filed on 10/10/2012 before delivering its final judgment against the Appellant on 13/5/2013. The Court below in my finding therefore, failed to discharge its duty to hear and determine the applications pending before it, including the Appellant’s application filed on 10/10/2012, when it proceeded to deliver its final judgment against the Appellant. This is clearly against the laws of the land.

My Lords, interestingly, even the Respondent’s application filed on 21/12/2011 for summary judgment against the Appellant was neither heard nor determined by the Court below going by the Record of Appeal, but who can blame the Respondent for not complaining about this failure at all when he has been given, as it where on a platter of gold, a judgment in his favor by the Court below against the Appellant.

In the circumstances therefore, in the light of the findings above to the effect that the Court below was wrong not to have heard and determine the Appellant’s application filed on 10/10/2012 for leave to call an additional witness, in law the failure by a Court which is under a duty to hear and determine every application before it no matter how frivolous it may be failed in its duty to render impartial and fair justice to the parties before it and such an unjust judgment reached in utter breach of the right to fair hearing of the Appellant or any party for that matter is a nullity and nothing valid or worth anything can come out from such a null judgment! See Ani V. Nna & Ors. (1996) 4 NWLR (Pt.440) 101 @ p. 120.

In FAAN V. WES (Nig.) Ltd (2011) 8 NWLR (Pt. 1249) 219 @ p. 237, where it was held inter alia thus:
“The process may be a downright abuse of the judicature as an institution. It may be stupid, reckless, irregular, aberrant or unmeritorious, but still, the Court must hear it and rule on it…. The position of the judgment of the Court below is a nullity as it failed to do what it ought to have done in the first place i.e. treating an impending application process before it. That judgment is liable to be set aside and to accordingly to so do.”
My Lords, it is a cardinal principle of our administration of justice that all applications properly brought before the Court must be heard since in law, a party to a cause or matter is entitled and must be given the opportunity to be heard before a decision affecting his rights and obligation can be given either for or against him. See Nalsa and Team Associates V. NNPC (1991) 7 NWLR (P1.212) 652.
In Elephant Group Plc V. National Security Adviser & Anor (2018) LPELR – 45528(CA), this Court per Georgewill JCA, had reiterated inter alia thus:
“It is the law that though a Court is enjoined to hear and

determine every application before it notwithstanding how outrightly frivolous or patently irritating to the Court it may be…. The real essence of this principle of law is to ensure that by the failure to hear and determine the pending application, the Court has not occasioned any breach of the right to fair hearing of the party or miscarriage of justice to the party. Thus, it is only where either both or any of these twin elements are absent, that a failure to hear and determine a pending application before delivery of judgment would not render the judgment a nullity.”

I fully and still subscribe to the above view of the trite position of the law and accept it to represent the extant position of the law on this vexed issue.

In the circumstances therefore and based on all the findings above, I hold that the non-hearing of the Appellant’s application filed on 10/10/2012 for leave to call an additional witness before final judgment was entered against it by the Court below on 13/5/2013 clearly amounted to a breach of the Appellant’s right to fair hearing. Consequently, issue two for determination is hereby resolved in

favour of the Appellant against the Respondent.

Having therefore resolved the two issues for determination in favour of the Appellant against the Respondent, it follows that this appeal has merit and ought to be allowed. Accordingly, I hereby so allow it.

In the result, the judgment of the National Industrial Court of Nigeria, Lagos Judicial Division, Coram: B. B. Kanyip J., (as he then was but now President, NICN) in Suit No. NIC/LA/226/2011: Chukwurah I. Ifeanyi V. Global Fleet Oil & Gas Ltd delivered on 13/5/2013, in which the claims of the Respondent as Claimant were granted against the Appellant as Defendant, is hereby set aside.

Consequently, suit no. NIC/LA/226/2011: Chukwurah I. Ifeanyi V. Global Fleet Oil & Gas Ltd is hereby remitted to the Administrative Judge of the Lagos Division of the Court below for re-assignment to another judge of the Court below for expeditious de-novo hearing and determination according to law.
I make no order as to cost.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the judgment delivered by my learned brother,

SIR BIOBELE ABRAHAM GEORGEWILL, JCA and I am in agreement with his reasoning and conclusions in allowing the appeal as meritorious. I abide by all consequential orders made thereto.

FOLASADE AYODEJI OJO, J.C.A.: I have had the advantage of reading in draft the lead judgment in this appeal just delivered by my learned brother, SIR BIOBELE ABRAHAM GEORGEWILL, JCA. I agree with his reasoning and conclusion that this appeal has merit and should be allowed.

This appeal has again brought to the fore the principle of fair hearing. This principle demands that all parties to a case must be heard. It is a principle enshrined in Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The right to fair hearing is therefore a fundamental right which must be jealously guarded by the Courts of law. In any judicial or quasi-judicial proceedings, the rights of the persons to be affected by the outcome of its decision must be taken into consideration. The Court and/or Tribunal must give such a person affected the opportunity:
(i) To be present at the proceedings and hear all the evidence against him.

(ii) To cross-examine or otherwise contradict witnesses who testify against his interest.
(iii) To enable him access to all documents tendered in evidence against him.
(iv) To disclose to him the nature of all relevant material, evidence, prejudicial against him within the limits of recognised policy.
(v) To know the case against him so that he will have the opportunity to prepare his defence.
(vi) To be free to give evidence in his own defence and call witness, make oral or written submissions either by himself or through counsel of his own choice.
See BABA VS. NIGERIAN CIVIL AVIATION TRAINING CENTRE, ZARIA (1991) 5 NWLR (PT. 192) 388; DARMA VS ECOBANK NIGERIA LIMITED (2017) 9 NWLR (PT.1571) 480; NDUKWE VS. UNION BANK OF NIGERIA PLC (2021) 2 NWLR (PT. 1765) 165; OLUFEAGBA VS. ABDUR-RAHEEM (2009) 18 NWLR (PT.1442) 124; DANLADI VS. DANGIRI (2015) 2 NWLR (PT. 1442) 124; KOTOYE VS. CENTRAL BANK OF NIGERIA(1989) 1 NWLR (PT.98)419.
In the instant appeal, parties before the lower Court were not given the opportunity to call evidence and cross-examine witnesses before the learned trial Judge delivered his final judgment.

Furthermore, the Appellant was not afforded the opportunity to move his application filed for the purpose of calling an additional witness. The procedure adopted by the learned trial Judge was obviously in breach of the Appellant’s right to fair hearing and this rendered the proceedings of the Court a nullity.

It is for the foregoing and the fuller reasons elucidated by my learned brother in the lead judgment that I also allow this appeal and set aside the decision of the lower Court in Suit No: NIC/LA/226/201. I abide by all the consequential orders in the lead judgment.

Appearances:

Mofesomo Tayo – Oyetibo,Esq. For Appellant(s)

Chukwudi Ajaegbo, Esq. For Respondent(s)