GOV. OF PLATEAU STATE & ORS v. CHIRMAN & ORS (2020)

GOV. OF PLATEAU STATE & ORS v. CHIRMAN & ORS

(2020)LCN/14751(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Wednesday, November 11, 2020

CA/J/171/2019

RATIO

FAIR HEARING: RIGHT TO FAIR HEARING

Section 36(1) of the Constitution of Nigeria provides thus:
S. 36(1) In the determination of his Civil right and obligation, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and partiality.”
By the foregoing provision, which guaranteed the right to fair hearing in the determination of party’s civil right and obligations by a Court or Tribunal established by law. See BIDA V COMMISSIONER OF REVENUE (1972) 1 ANLR (Pt. 1) pg. 191 at 195, SHYLLON V ASIEN (1994) 6 NWLR (Pt. 353) 670 at 698; OTAPO V SUNMONU AND ORS (1987) 2 NWLR (Pt. 58) 587 at 608, 616, MATTARADONA AND ANOR V ALU (1995) 8 NWLR (Pt. 412) 225 at 239. PER ONIYANGI, J.C.A.
PROCEEDING: NATURE OF PROCEEDINGS INITIATED UNDER AN ORIGINATING SUMMONS PROCEDURE

It is trite that proceeding initiated under an Originating Summons procedure as in this appeal at hand are those where the sole or principal questions at issue are or are likely to be one of construction of a written law, or of any instrument made under any written law, or of any deed, will, contract or other document or source other question of law. Put in another way where there is unlikely to be any substantial dispute of facts. See WAKWAH V OSSAI (2002) 2 NWLR (Pt. 752) 548 at 561-562, KEYAMO V HOUSE OF ASSEMBLY LAGOS STATE (2002) 18 NWLR (Pt. 799) 605 at 613 paras. E – F. It is also trite that where originating process is an Originating Summons, the Affidavits filed in support serves as the Statement of Claim while the Counter Affidavits serves as the Statement of Defence. See NIGERIA NATIONAL PETROLEUM CORPORATION (NNPC) V FAMFA OIL LTD (2012) (Pt. 11328) page 163 at 233 – 234 paras. F – A. PER ONIYANGI, J.C.A.
AFFIDAVIT: ESSENCE OF A COUNTER AFFIDAVIT

In the case of TAIWO VS DAMBARE (2001) 14 WRN 52 at 67, Umoren JCA said thus:

“A Counter Affidavit is expected to counter or act or depose to contrary or opposing facts vis-a-vis the affidavit in support. Like a statement of defence in relation to a statement of claim, the main function of counter affidavit is to be in opposition to the affidavit in support as far as the main issues in dispute are concerned. It is good law that a denial whether in pleading or in affidavit must not give room for any conjecture or speculation. A denying paragraph in an affidavit should specifically deny the particular or paragraphs in the affidavit in support.”
See also OGUNSOLA V USMAN (2013) FWLR (Pt. 180) 1465, ADEJUGBE V OLOGUNJA (2004) ALL FWLR (Pt. 201) 1652. It is also trite that a counter affidavit filed by a party must be considered by the Court. See S.T.B. LTD V INTERDRILL NIG. LTD (2003) ALL FWLR (Pt. 366) 756. PER ONIYANGI, J.C.A.
WORDS AND PHRASES: MEANING OF THE WORD “FURTHER”

In the Blacks Law Dictionary, Sixth Edition, page 675, the word “further” is defined thus:-
“Not a word of strict legal or technical import, and may be used to introduce negation or qualification of some precedent matter, but generally when used as an adverb it is word of comparism, and means “additional” and is equivalent to “moreover or furthermore, something beyond what has been said or likewise, or also” wider, fuller, or something new. Occasionally it may mean any further or other.” PER ONIYANGI, J.C.A.
AFFIDAVIT: MEANING OF A FURTHER AFFIDAVIT

For the foregoing, a further affidavit will therefore, mean an affidavit introduced to negate or qualify some precedent matter, mostly a previous affidavit, or it simply means additional fact in a different affidavit meant to provide wider, fuller and newer information beyond what has already been said in an earlier affidavit. See the case of ATTORNEY GENERAL OF NASARAWA STATE V ATTORNEY GENERAL OF PLATEAU STATE (2012) 10 NWLR (Pt. 1309) 419 at 457. PER ONIYANGI, J.C.A.

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

THE EXECUTIVE GOVERNOR OF PLATEAU STATE 2. THE ATTORNEY GENERAL OF PLATEAU STATE 3. PLATEAU STATE GOVERNMENT 4. LANGTANG NORTH LOCAL GOVERNMENT APPELANT(S)

And

MR. CLEMENT CHIRMAN (National President Of The Guzum Cultural, Economic And Social Development Organization GACESDO) Suing For Himself And On Behalf Of The People Of Guzum) 2. HON. JOAB DADI (District Head Of Guzum) 3. HON. NANMAN BALE (Ponzhi Dambar) 4. HON. NICHOLAS MUSA (Ponzhi Tummwat) RESPONDENT(S)

MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): The Respondents in this Court as Plaintiffs by way of an Originating Summons dated and filed on the 7th day of December, 2010 at the High Court of Justice Plateau State sitting in Langtang sought for the determination of the following questions against the Appellants as Defendants.
(1) Whether by virtue of the Chiefs (Appointment and Deposition) Law (Cap. 20) – the Appointment and Deposition of Chiefs (Appointment of (Ponzhi Taroh) Chief of Yargam) Order, 1975, the 1st and 2nd Plaintiffs or any person belonging to “Ce Zinni” Ruling House are eligible to be candidates at any elections to fill the vacant stool of the Ponzhi Tarok?
(2) Whether by virtue of Paragraph 4 of the Chiefs (Appointment and Deposition) Law (Cap. 20) – the Appointment and Deposition of Chief (Appointment of (Ponzhi Tarok) Chief of Yargam) Order, 1975, the 2nd – 4th Plaintiffs and all the holders of the title in the said Gazette are legally entitled to fill the vacant stool of the Ponzhi Tarok?
(3) Whether in view of the

Paragraph 4 of the Chiefs (Appointment and Deposition of Chiefs (Appointment of (Ponzhi Tarok) Chief of Yargam) Order, 1975, the Defendants can lawfully exclude the 2nd – 4th Plaintiffs, or any person holding the title in Paragraph 4 of the Legal Notice No. 3 of 1975, from participating as Traditional Selectors on the stool of the Ponzhi Tarok?
(4) Whether having regard to the provisions of the Chiefs (Appointment and Deposition) Law (Cap. 20) – The Appointment and Deposition of Chiefs (Appointment of (Ponzhi Tarok) Chief of Yargam) Order, 1975, there can be in existence any other method of selection of the Ponzhi Tarok, other than the Chiefs (Appointment and Deposition) Law (Cap. 20) – The Appointment and Deposition of Chiefs (Appointment of (Ponzhi) Tarok) Chief of Yargam) Order, 1975?
(5) Whether having regard to the provisions of the Chiefs (Appointment and Deposition) Law (Cap. 20) – The Appointment and Deposition of Chiefs of (Ponzhi Tarok) Chief of Yargam) Order, 1975, the Defendants can lawfully amend the said Legal Notice otherwise than in accordance with the Native Law and Custom of the Tarok people?

The grounds upon which the foregoing

questions are predicated are:-
GROUNDS
(1) By the provisions of the Chiefs (Appointment and Deposition) Law (Cap. 20) – The Appointment and Deposition of Chiefs (Appointment of (Ponzhi Tarok) Chief of Yargam) Order, 1975, the 1st Defendant is empowered to codify the applicable Native Law and Custom, regulating the selection of the Ponzhi Tarok.
(2) Acting in furtherance of its powers, the 1st Defendant acting in Council made an order published by a valid Legal Notice, published in the Benue Plateau State of Nigeria Gazette, setting out the mode of selection and the applicable Native Law and Custom regulating the selection of the Ponzhi Tarok.
(3) On the basis of the said Legal Notice, the Ponzhi Tarok Edward Zhatu was selected as the Ponzhi Tarok.
(4) The Ponzhi Edward Zhatu passed on to join his ancestors on the 10th day of November, 2008.
(5) By the said selection method prescribed by the Legal Notice, the 2nd – 4th Plaintiffs are entitled to participate as traditional selectors of the stool of Ponzhi Tarok while 1st and 2nd Plaintiffs are eligible to be candidates for the stool.
(6) Sequel to the provisions of the

Legal Notice, and the applicable Native Law and Custom, the 2nd – 4th Plaintiffs (amongst all the other selectors mentioned in the Legal Notice as constituting the Electoral College, were invited to a meeting of the traditional selectors at the instance of Defendants, to enable the 2nd – 4th Plaintiffs amongst other selectors each an eligible candidate of their choice.
(7) On arrival at the venue, the scheduled selection, the agents of the Defendants called off the selection exercise.
(8) The Defendants have sought to alter the applicable Native Law and Custom regulating the selection of the Ponzhi Tarok, and on the 18th January, 2010, the 1st Defendant requested the Elder and Traditional leaders of Tarok to meet and take a position regarding the applicable instrument regulating the selection of the Ponzhi Tarok.
(9) On the 4th day of May, 2010 the Tarok Elders Forum wrote the 1st Defendant intimating him of the decision of the Tarok people on the applicable instrument.
(10) Prior to the letter to the 1st Defendant, the Langtang North and Langtang South Traditional Council met on the 28th April, 2010, and resolved that the

1975 Gazette on the mode of selection of the Ponzhi Tarok remain unassailable.
RELIEFS SOUGHT
(1) A DECLARATION that the stool of the Ponzhi Tarok is a chieftaincy institution for the entire Tarok tribe and the mode of selection is the Native law and Custom of the Tarok people, as codified by Legal Notice No. 3 of 1975.
(2) A DECLARATION that by virtue of the codification of the Ponzhi of Tarok Order, the Chiefs (Appointment and Deposition) Law (Cap. 20) – The Appointment and Deposition of Chiefs (Appointment of (Ponzhi Tarok) Chief of Yargam) Order, 1975, the only and subsisting method of selection of the Ponzhi Tarok, is the procedure set out in the said Legal Notice No. 3 of 1975.
(3) A DECLARATION that by virtue of the provisions of Paragraph 4 the Chiefs (Appointment and Deposition) Law (Cap. 20) – The Appointment and Deposition of Chiefs (Appointment of (Ponzhi Tarok) Chief of Yargam) Order, 1975, the 2nd – 5th Plaintiffs and those mentioned in Paragraph 4 of the Legal Notice are the only recognized traditional selectors as the Electoral College for the stool of the Ponzhi Tarok.
(4) A DECLARATION that the Defendants,

lack the power to effect any alteration, or modification of the Native Law and Custom regulating the appointment or selection of the Ponzhi Tarok, except upon the request of the Tarok people.
(5) AN ORDER OF PERPETUAL INJUNCTION RESTRAINING the Defendants, their servants, agents or privies from undertaking any selection exercise of the Ponzhi Tarok, other than the procedure set out in Paragraph 4 of the Chief (Appointment and Deposition) Law (Cap. 20) – The Appointment and Deposition of Chiefs (Appointment of (Ponzhi Tarok) Chief of Yargam) Order, 1975.
(6) AN ORDER OF PERPETUAL INJUNCTION RESTRAINING the Defendant, their servants, agents or privies from taking any step towards the repeal amendment or any alteration of the Ponzhi Tarok, in any manner as would exclude the Plaintiffs from the selection process.
(7) AN ORDER OF MANDATORY INJUNCTION compelling the 4th and 5th Defendants, pursuant to Paragraph 5(1) of the Chiefs (Appointment and Deposition) Law (Cap. 20) – The Appointment and Deposition of Chiefs (Appointment of (Ponzhi Tarok) Chief of Yargam) Order, 1975, to commence and conduct the selection into the office of the Ponzhi

Tarok, in accordance with the provisions of the Legal Notice No. 3 of 1975.

As can be garnered from the statement in support of the Originating Summons and the affidavit in support which can be found on pages 8 – 11 and 12 – 15 of the record of Appeal, the summary of the facts upon which the claims of the Respondents as Plaintiff before the trial Court is predicated goes thus:
The Tarok Nation, made up of a single tribe of the Hill Tarok (Zinni) and the Plain Tarok (comprising Bwarat, Ce, Gani, Kumbwang and Tummwat communities. Prior to 1955, the aforementioned duo communities were under different Divisions. The Hill Tarok was under Pankshin Division and the Plain Tarok was under the Shendam Division. In 1955, the people of Tarok decided to come under one united chiefdom and authority to be known as Ponzhi Tarok and hence, the Hill Tarok and Plain Tarok united and metamorphosed into Ponzhi Tarok. By this marriage, the Ponzhi Tarok became the paramount ruler of all Tarok people. It is also the Plaintiffs (Respondent’s) case that all Tarok people agreed and subscribed to the Benue Plateau State Legal Notice No. 3 of 1975. The Chief

(Appointment and Deposition) Law (Cap. 20). The Appointment and Deposition of Chiefs (Appointment of (Ponzhi Tarok) Chief of Yargam) Order 1975 would regulate the selection of the Ponzhi Tarok. By that Legal Notice No. 3 of 1975, the candidate for election as Ponzhi Tarok would be from the Ruling families of Gazum and Ce of Langtang. By the said instrument, the Electoral College for the selection of Ponzhi Tarok is made up of the following title holders:
(a) Madakin Langtang
(b) Galadima Langtang
(c) Ponzhi Dibbar
(d) Ponzhi Dambar
(e) Ponzhi Mbin of Langtang
(f) Ponzhi Gazum
(g) Ponzhi Mbin of Bwarat
(h) Ponzhi Mbin of Gani
(i) District Head of Gazum
(j) District Head of Langtang
(k) District Head of Bwarat
(l) District Head of Gani

It is also the case of the Plaintiffs that the 1st plaintiff amongst other descendants of the “Ce Zinni” lineage of Gazum are eligible to contest the vacant stool of Ponzhi Tarok and so also the 2nd to 4th Plaintiffs are entitle to participate as members of the Electoral College for the selection of the Ponzhi Tarok.

Consequent upon the transition of the Ponzhi Tarok (Edward Zhatu) to the great beyond on the 10th day of November, 2008, and thereby creating vacancy to the stool of Ponzhi Tarok, the 1st and 2nd Respondents (Plaintiffs) set in motion in compliance with the dictates of the Legal Notice No. 3 of 1975 and invited 2nd – 5th Respondents/Plaintiffs as members of the Electoral college for the selection of Ponzhi Tarok. The meeting was called off by the agents and officials of the 2nd – 5th Defendants. Suspecting that the agents of the Defendants/Appellants wanted to exclude some of the Plaintiffs from participating as selectors and as candidates. Several meetings were held where Tarok Elders affirm that the stool of the Ponzhi Tarok is regulated by the Legal Notice No. 3 of 1975. They also aver that the 2nd – 4th Plaintiffs amongst other selectors listed in the legal Notice constituting the Electoral College were invited to a meeting of the traditional selectors at the instance of the Defendants to elect an eligible candidate of their choice. The meeting did not hold because it was said to have been called off by agents of the

Defendants/Appellants. It is also their deposition that the Defendants/Appellants sought to alter the applicable Native Law and Custom regulating the selection of Ponzhi Tarok. This led to the directive of the 1st Defendant/Appellant on the 18th day of January, 2010 that the Elders and Traditional Leaders of Tarok should meet and take a position regarding the applicable instrument regulating the selection of Ponzhi Tarok. The Elders of Langtang North and Langtang South prior to the directive of the 1st Appellant met on the 28th April, 2010 and resolved that the 1975 Gazette on the mode of selection of Ponzhi Tarok remain unassailable and hence on 4th day of May, 2010, the Tarok Elders Forum wrote to the 1st Appellant intimating him of their resolve on the applicable instrument. Not this alone, at the meeting of Langtang Traditional Council held at the palace of the Ponzhi Tarok on the 19th March, 2009, it was resolved that the 1975 Gazette is the applicable instrument that would guide the selection of Ponzhi Tarok and that any amendment to existing Gazette will only be considered after the selection/appointment of a new Ponzhi Tarok.

For the failure and refusal of the Defendants to call and conduct the selection of a new ponzhi Tarok in accordance with the dictate of the Legal Notice No. 3 of 1975 gave birth to the suit by the Plaintiffs/Respondents against the Defendants/Appellants at the trial Court.

Issues were joined before the trial Court by parties. The Appellants filed a Counter Affidavit of 7 paragraphs and some annexure. They also filed a Notice of Preliminary Objection dated 15th December, 2010 and filed on 16th December, 2010 challenging the locus standi of the 1st Respondent. The Court concluded at the end of the day that the said Notice of Preliminary Objection was abandoned and hence struck it out.

The Respondents as Plaintiffs filed a Further and Better Affidavit in response to the Counter Affidavit while the Appellants filed a Further and Better Counter Affidavit. This process by the Appellant was discountenanced by the trial Court and struck out. That action by the trial Court constitutes one of the complaints of the Appellants which would be attended to at the appropriate stage of this judgment.

After all said and done, the learned trial judge in his wisdom answered the questions posed by the Plaintiffs in their Originating Summons positively and in the following terms. (See pages 255 – 257 of the record of Appeal):
“I now proceed to answer the questions posed by the Plaintiffs and the reliefs sought as follows:
By virtue of the Legal Notice No. 3 of 1975, the Ce Zinni Ruling House in which 1st and 2nd Defendants are family members are eligible to contest the stool of the Ponzhi Tarok. This is distilled from grounds 5 and 6 of the Originating Summons. Secondly questions 4 – 5 covering grounds 2-4 and 7-9 are answered in favour of the Plaintiffs.
Consequently, the case of the Plaintiffs is meritorious. I find this judgment in their favour and for the avoidance of doubt, I hereby make the following orders:
(1) Legal Notice No. 3 Volume 7 of 2nd December, 2010 having been illegally procured is hereby declared null and void and accordingly set aside consequently, all actions, exercises taken relating to the selection of Ponzhi Tarok under the purview of the law is further declared as null and void and has no effect whatsoever.

(2) I declare that the purported repeal of Legal Notice No. 3 of 1975 as a complete nullity. The said Benue Plateau Legal Notice No. 3 of 1975 is accordingly restored as the valid and applicable law for the deposition and appointment of Ponzhi Tarok including the regulation and the method of selection.
(3) I hereby declare that the stool of Ponzhi Tarok is a stool for the entire Tarok people in line with the provisions of the Legal Notice No. 3 1975.
(4) It is further declared as captured in this judgment that 1st – 4th Defendant lack the constitutional right and power to unilaterally, initiate, make or produce any law relating to the method and regulations for the selection of Ponzhi Tarok in isolation of the desire of the entire Tarok people and particularly the king makers and the ruling houses as captured in the Legal Notice No. 3 1975.
(5) The Defendants are hereby restrained from undertaking any repeal, modification or alteration of Legal Notice No. 3 without recognizing the principles of due process so as to protect the cultural heritage and the Native Law and Custom of the Tarok people as it relates to the extant Law and any subsidiary

legislation regulating the appointment and deposition of Chief as it affects the stool of Ponzhi Tarok.
(6) The 1st – 4th Defendants, their agents, servants, privies or whosoever acting in their behalf and under their instruments are hereby restrained from initiating the modification, amendment, repeal or review of the Legal Notice No. 3 of 1975 relating to the method of selection and the regulations on the stool of Ponzhi Tarok except with the consent of the Tarok people.
Accordingly, the Defendants are advised to initiate without further delay the process for the selection of a new Ponzhi Tarok pursuant to Benue Plateau Legal Notice No. 3 of 1975.”

The foregoing outcome did not go well with the Defendants and hence this appeal vide their notice of appeal dated 29th November, 2018 filed on 30th November, 2018. The said notice was amended pursuant to the order of this Court granted on 3rd day of March, 2020. The amended Notice of Appeal filed on 3rd day of March, 2020 was deemed as properly filed and served on the same date. In content, it has six Grounds of Appeal. In paragraph 4 of the said amended Notice and Ground of appeal, the

Appellants sought for the following reliefs.
RELIEFS SOUGHT
(1) An Order allowing the appeal.
(2) An order setting aside the decision of the High Court of Plateau State sitting at Langtang delivered on the 22nd December, 2018 by Hon. Justice S. J. Bakfur.
(3) An order striking out or dismissing the entire suit filed by the Respondents at the lower Court, the Plaintiff now Respondents having not complied with Section 65 of the Local Government Law 1999 and Section 18 of the Chieftaincy Law of Plateau State.

In compliance with the Rules and Practice of this Court, Counsel filed and exchanged their respective briefs of argument.

The Appellants in their brief of augment filed on 2nd June, 2020 and deemed as properly filed and served vide the order of this Court granted on the 29th day of June, 2020 raised the following four issues for the determination of this appeal:
(i) Whether Exhibit MAD2, a letter written to the Chairman, Langtang North Local Government Council, attached to the Respondents (the then Plaintiffs) Further and Better Affidavit was sufficient evidence of compliance with condition precedent as stipulated in

Section 64 of the Local Government Law of 1999 and Section 18 of the Chieftaincy Law 2005 (Ground two)
(ii) Whether the trial Court did not infringe on the Fundamental Right of the Appellants (the then Defendants) to fair hearing when it struck out the Appellants Further and Better Counter Affidavit and went ahead to rely on the Respondents (the then Plaintiffs) Further and Better Affidavit and Reply which were a reply to the Appellants Further and Better Counter Affidavit already struck out (Ground three).
(iii) Whether the failure of the lower Court to consider the issue raised by the Appellants and arguments thereon, simply because the Respondents did not raise same did not infringe on the Appellant’s right to fair hearing (Ground four).
(iv) Whether the Appointment and Deposition of Chiefs (Appointment of Ponzhi Tarok) Chief of Yargam Order 1975 which is a subsisting Legislation made pursuant to and resting on the repealed Chiefs (Appointment and Deposition) Law 1963 can still apply, the present law having been repealed by Section 22 of the Plateau State Chieftaincy Law 2005 and the Governor having validly made the Appointment and

Depositions of Chiefs (Appointment of Ponzhi Tarok) Order 2010 pursuant to the subsisting Plateau State Chieftaincy law 2005 (Distilled from Grounds five and six).

On the other hand, the Respondents in their brief of argument dated 27th day of July, 2020 and filed on 28th July, 2020, presented two issues for the determination of the appeal. They are:
(1) Whether the lower Court rightly assumed jurisdiction in the hearing and determination of the suit? (Grounds 2)
(2) Whether the lower Court was right in resolving the question posed for determination in favour of the Plaintiffs? (Grounds 1, 3, 4, 5 and 6).

Haven read the respective briefs of argument by parties, I will adopt the issues formulated by the Appellants. I will however prefer to consider issues 2 and 3 first and thereafter issues 1 and 4. Issues 2 and 3 would be taken together since they both are complaining about the refusal of the trial Court to consider the Further and Better Counter Affidavit of the Defendants (Appellants), and which process was discountenanced and struck out consequent upon the finding of the Court that the said Further and Better Counter Affidavit constitute

an abuse of Court process.

ISSUES 2 AND 3
(2) Whether the Trial Court did not infringe on the Fundamental Right of the Appellant (the then Defendants) to fair hearing when it struck out the Appellants’ Further and Better Counter Affidavit and went ahead to rely on the Respondents (the then Plaintiffs) Further and Better Affidavit and Reply which were a reply to the Appellants Further and Better Counter Affidavit already struck out.
ISSUES 3
Whether the failure of the lower Court to consider the issue raised by the Appellants and arguments thereon, simply because the Respondents did not raise same did not infringe on the Appellants right to fair hearing (Ground Four).

The contention of the Appellants on the foregoing issues is that the conduct of the Court wherein it struck out the Further and Better Counter Affidavit of the Appellants as well as refusal to consider issues raised by the said Appellants breached the Appellants right to fair hearing. He submitted that the Court’s decision striking out the Appellants’ further and Better Counter Affidavit while

allowing the Respondents Further and better Affidavit and Reply amounted to a breach of the Appellants’ right to fair hearing. He argued that the twin pillars of natural justice which are expressed in the Latin maxim “Audi Alteram Pertem” which means: “let the other party be heard” and “nemo judex in causa sua” which means: “no one should be a judge in his own case” do not only forbid one from being a judge in his case but also require that the Court hears the other party and give equal treatment to both parties. He relied on the following cases: OGUNDOYIN AND ORS V ADEYEMI (2001) LPELR – 2335. On attributes of fair hearing in any case before the Court, he relied on the cases of KOTOYE V CBN AND ORS (1989) LPELR – 1707, S & D CONSTRUCTION COMPANY LTD V AYOKU & ANOR (2011) LPELR – 2965, UNIBIZ (NIGERIA) LTD V COMMERCIAL BANK CREDIT LYONNAIS LTD (2003) – LPELR – 3380. He contented further that the Court’s decision striking out the Appellants’ Further and Better Counter Affidavit while relying on the Respondents Further and Better Affidavit and Reply amounted

to a breach of the Appellants Fundamental Right to fair hearing. According to him, it deprived the Appellant of the opportunity to be heard on the issues, facts and arguments contained in the said Further and Better Counter Affidavit while availing the Respondents the opportunity to be heard in such issues and facts. Parties cannot be said to have been given equal opportunities in the case. He added that the Court in a similar vein, discountenance the issues and argument raised in the defence of the Appellants on the basis that it could only be guided by the issues raised in the Respondents Originating Summons. Reproducing the finding of the Court on the foregoing, he argued that the Respondents presented a half story before the trial Court in their originating process and all the documents attached thereto but never raised issue that would affect their case negatively e.g. the validity or otherwise of the Chiefs (Appointment and Deposition) Law (Cap. 20) the Appointment and Deposition of Chiefs (Appointment of Ponzhi Tarok) Chief of Yargam Order 1975 which had been validly repeal by the Appointment and Deposition of Chiefs (Appointment and Deposition of

Chiefs) (Appointment of Ponzhi Tarok) Order 2010. He added that the Appellants in a bid to defend themselves raised issues which when presented before the Court would justify any action taken after the trial Court closed its eyes to the issues raised by the Appellants and which issues are the fulcrum of their defence before the Court. Thus refusal, he submitted amounted to breach of the Appellants’ right to fair hearing. He added that Courts are bound to consider all issues raised by parties before it. He relied on the cases of ABDULLAHI V THE GOVERNOR OF KANO STATE AND ORS (2011) LPELR – 8925, TANKO V UBA PLC (2010) 17 NWLR ((Pt. 1221) 80 at 92, MARINE MANAGEMENT ASSOCIATES INC AND ANOR V NATIONAL MARITMIE AUTHORITY (2012) LPELR – 20618, ODETAYO V BAMIDELE (2007) LPELR (2007) – LPELR 2211, A.G. LEVENTIS NIG PLC V AKPU (2007) 6 SC (Pt. 1) 239 at 252 – 253 lines 30-10. He urge the Court to resolve the two issues (2 & 3) in favour of the Appellants and to hold that the decision of the Court infringed on the Appellants right to fair hearing.

Reacting to issues 2 and 3 by the Appellants

complaining of lack of fair hearing in the determination of the suit by the Respondents and which issues the Appellants claimed to have formulated from grounds 2 and 3 of amended notice of appeal. He submitted that none of these grounds relates to or complain against the decision of the lower Court on the basis of lack of fair hearing. He contended that it is settled law that in framing issues for determination, the issues must arise from the grounds of appeal. He argued further that where issues formulated for determination do not arise or relate to the ground(s) of appeal, the Court has no jurisdiction to entertain and resolve same. He added that the Appellants who have not complained or expressed any grievance predicated or the breach of their right to fair hearing, have not only formulated issues 2 and 3 predicating same on lack of fair hearing, they have further argued the breach of their right to fair hearing, and the consequence of such breach to the proceedings. It is also his contention that the Appellants in the ground of the amended Notice of appeal, complained that the lower Court’s decision striking out the Appellants further and Better

Counter Affidavit as an abuse of Court process was wrong but relied on the Respondents further and Better Affidavit and Reply on point of law. It is his case that neither grounds 3 and 4 of the amended notice of appeal and particulars of error in either of the grounds of appeal made any reference to indicate by any mention of the absence of fair hearing as to entitled the Appellant make lack of fair hearing on issue arising from the judgment of the lower Court to argue same in the said brief. He urge the Court to discountenance the issue as argued and to proceed to discountenance the argument and submission made in regards to the said issues in the Appellants’ brief. He submitted that no issue of lack of fair hearing arose from the decision of the lower Court and that the trial Court was right in its finding that the Appellant further and Better Affidavit was an abuse of Court process there being no law supporting it. Therefore, the trial Court was clearly not in error to have relied on the portions of the Respondents further affidavit and written address that were unconnected with the response to the Appellants further counter affidavit that it is

uncharitable for the Appellant counsel to give the impression that the lower Court did not consider the argument in the further counter affidavit and written address. He referred to pages 191 -192, 249- 250, 193-194 and 251 of the record of Appeal. He added that the Appellants have not challenged the propriety or correctness of the decision of the lower Court in issues 2 and 3. The Appellants cannot contend that the lower Court did consider the case forwarded by them in the lower Court. He added that the approach of the lower Court was to give a complete and comprehensive decision on all the issues raised before it being a Court of first instance. He relied on the following cases OGUNGWA V WILLIAMS (2020) 8 NWLR (Pt. 1725) 38; TRANSNAV PN LTD VS VELCAN E.N.D. LTD (2020) 7 NWLR (Pt. 1723) 293.

On a final note, he submitted that the lower Court duly considered the position of the parties and came to the conclusion that the legal Notice of 2010 cannot be the subsisting law.

It is not in dispute between parties that in reaction to the initiating processes (Originating Summons) filed by the Respondents, on the 7th day of

December, 2020, i.e. the Statement of fact, Affidavit in support and Written Address amongst others, the Appellants as Defendants to the action by the Respondents as Plaintiffs before the lower Court filed a seven (7) paragraph Counter Affidavit, Written Address and some annexures. Further to the foregoing counter process the Appellants as Defendants on the 5th December, 2012 filed a Further and Better Counter Affidavit of six paragraphs, some annexures and written address. (See pages 174 – 195 of the Record of Appeal). On 18th of September, 2018, the Plaintiffs/Respondents filed a Further and Better Affidavit of Ten (10) paragraph and some annexures and Plaintiffs (Respondents) reply on point of law. (See pages 196-217 of the Record of Appeal)
Relevant to these issues under discourse, is the finding of the Court on the Further and Better Counter Affidavit filed by the Defendants (Appellants) which can be found on page 251 of the Record of Appeal. Hear the Court thus:
“The next point that has to be stated is that there is nothing in the rules of this Court to file a Further and Better Counter Affidavit. Both the Plateau State High Court

Civil Procedure Rules 1987 and the Practice Direction of the High Court, 2007 do not permit for that the said Further and Better Counter Affidavit is an abuse of legal process and if anything the content has not added any value to the argument of the Defendant. It is hereby struck out.”
By the foregoing, it is crystal clear that the learned trial judge did not put into consideration the facts deposed to by the Plaintiffs in their further and better affidavit in his determination of the issues joined by parties in the case before it. If I may ask, what is the consequence of this on the defence of the Defendants/Appellants to the suit of the Plaintiffs/Appellants before the Court. The contention of the Appellants is that their fundamental right to fair hearing has been violated by the decision of the trial Court not to consider their further and Better Counter Affidavit. Section 36(1) of the Constitution of Nigeria provides thus:
S. 36(1) In the determination of his Civil right and obligation, including any question or determination by or against any government or authority, a person shall be entitled to a fair

hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and partiality.”
By the foregoing provision, which guaranteed the right to fair hearing in the determination of party’s civil right and obligations by a Court or Tribunal established by law. See BIDA V COMMISSIONER OF REVENUE (1972) 1 ANLR (Pt. 1) pg. 191 at 195, SHYLLON V ASIEN (1994) 6 NWLR (Pt. 353) 670 at 698; OTAPO V SUNMONU AND ORS (1987) 2 NWLR (Pt. 58) 587 at 608, 616, MATTARADONA AND ANOR V ALU (1995) 8 NWLR (Pt. 412) 225 at 239.
As I said before, the complaint of the Appellants in the main on this issue is that their Further and Better Counter Affidavit was not considered by the trial Court but struck out. Not this alone the Court went ahead to consider the Further and Better Affidavit of the Plaintiffs/Respondents which was filed in reaction to the Appellant’s Further and Better Counter Affidavit. At this stage, I consider it apt to bring in the time the processes were filed. Before then, it would be recalled that the case of the Plaintiffs

(Respondents) before the trial Court was initiated vide an Originating Summons. It is trite that proceeding initiated under an Originating Summons procedure as in this appeal at hand are those where the sole or principal questions at issue are or are likely to be one of construction of a written law, or of any instrument made under any written law, or of any deed, will, contract or other document or source other question of law. Put in another way where there is unlikely to be any substantial dispute of facts. See WAKWAH V OSSAI (2002) 2 NWLR (Pt. 752) 548 at 561-562, KEYAMO V HOUSE OF ASSEMBLY LAGOS STATE (2002) 18 NWLR (Pt. 799) 605 at 613 paras. E – F. It is also trite that where originating process is an Originating Summons, the Affidavits filed in support serves as the Statement of Claim while the Counter Affidavits serves as the Statement of Defence. See NIGERIA NATIONAL PETROLEUM CORPORATION (NNPC) V FAMFA OIL LTD (2012) (Pt. 11328) page 163 at 233 – 234 paras. F – A.
Upon the initiation of the action by the Plaintiffs (Respondents), they filed an affidavit in support of 32 paragraphs amongst other processes which for the purposes of this

case is the statement of claim. (See pages 12 to 15 of the record of appeal). It was filed on 7th of December, 2010.
In Response, the Defendants (Appellants) filed their Counter Affidavit of 7 paragraphs on 18th January, 2011. See pages 44 – 47 of the Record of Appeal. Along the line so many other interlocutory processes were file by parties.
On the 5th day of December, 2012, the Defendants/Appellants filed a Further and Better Affidavit of 6 paragraphs and some annexures on the same date. He also filed along with the said Further and Counter Affidavit a Written Address on 5th December, 2012. (See pages 174 – 195 of the Record of Appeal). The Plaintiffs then filed on the 18th day of September, 2018, the Plaintiffs’ Further and Better Affidavit in support of (10) Ten paragraphs and some annexures. In addition, they also filed Plaintiffs’ reply on point of law dated 17th September, 2018. See pages 196 – 217 of the record of Appeal. That is to say that the Appellants as Defendants filed their Further and Better Counter on 5th December, 2012 while the Respondents as Plaintiffs filed their

Further and Better Affidavit on 18th day of September, 2018. That is to say six (6) years thereafter. The learned trial judge in his judgment struck out the Further and Better Counter Affidavit by the Appellants filed earlier in time on the reason that it is unknown to the Procedure Rules but retained and considered the Further and Better Affidavit of the Plaintiffs/Respondents filed later in time (six years later) on the 18th day of September, 2018 in his judgment in arriving at the conclusion reached. Somewhere before now, I said complaints brought to Court under the Originating Summons procedure are fought by affidavit evidence and which serves at the pleadings of respective parties. It might now be proper and timely to look into what a Further Affidavit connotes. It will be recalled that the Appellants as Defendants filed a Counter Affidavit and a Further and Better Counter Affidavit while the Plaintiffs filed an affidavit in support of his Originating Summons and a Further and Better Affidavit in support. One may ask what is a Counter Affidavit. In the case of TAIWO VS DAMBARE (2001) 14 WRN 52 at 67, Umoren JCA said thus:

“A Counter Affidavit is expected to counter or act or depose to contrary or opposing facts vis-a-vis the affidavit in support. Like a statement of defence in relation to a statement of claim, the main function of counter affidavit is to be in opposition to the affidavit in support as far as the main issues in dispute are concerned. It is good law that a denial whether in pleading or in affidavit must not give room for any conjecture or speculation. A denying paragraph in an affidavit should specifically deny the particular or paragraphs in the affidavit in support.”
See also OGUNSOLA V USMAN (2013) FWLR (Pt. 180) 1465, ADEJUGBE V OLOGUNJA (2004) ALL FWLR (Pt. 201) 1652. It is also trite that a counter affidavit filed by a party must be considered by the Court. See S.T.B. LTD V INTERDRILL NIG. LTD (2003) ALL FWLR (Pt. 366) 756.
The issue now is the use of the word “further” for the counter Affidavit. A further affidavit or a further and better affidavit are filed vide the permission of the Court. That is not in contest in this case. It is applicable to both parties who filed further and Better Affidavit and Counter Affidavit. In the

Blacks Law Dictionary, Sixth Edition, page 675, the word “further” is defined thus:-
“Not a word of strict legal or technical import, and may be used to introduce negation or qualification of some precedent matter, but generally when used as an adverb it is word of comparism, and means “additional” and is equivalent to “moreover or furthermore, something beyond what has been said or likewise, or also” wider, fuller, or something new. Occasionally it may mean any further or other.”
For the foregoing, a further affidavit will therefore, mean an affidavit introduced to negate or qualify some precedent matter, mostly a previous affidavit, or it simply means additional fact in a different affidavit meant to provide wider, fuller and newer information beyond what has already been said in an earlier affidavit. See the case of ATTORNEY GENERAL OF NASARAWA STATE V ATTORNEY GENERAL OF PLATEAU STATE (2012) 10 NWLR (Pt. 1309) 419 at 457. Where the Plaintiff in its counter affidavit to the Defendant’s Preliminary Objection, deposed to certain crucial facts which were not countered by a

further affidavit by the Defendant. The apex Court stressing the consequence of the default on the part of the Defendant said:
“The above pungent averment by the Plaintiff in its counter claim have not been countered. They are accepted to be true and correct. They require no further elaboration as the law is very certain and clear that facts admitted required no further proof.”
See also the case of OBEYA V FIRST BANK OF NIGERIA PLC (2012) ALL FWLR (Pt. 636) 544. It is also trite that in cases fought on affidavits, the evidence is what is deposed to in those affidavits. Hence in the case of NIGER–BENIN TRANSPORT CO. LTD V OKEKE (2005) ALL FWLR (Pt. 250) 1286 this Court held thus:
“… a further affidavit performs the twin function of providing additional information and or of replying to a counter affidavit but that it must just like other affidavit contain only facts and not law.”
From the foregoing therefore, and in practice parties are at liberty, except for the rule that prior leave must be sought for and obtained to file and use further affidavits which like other affidavits

rank as evidence upon which the Court can, if legally admissible act upon. Again the use of the word “better” has no big deal in my view, it is just another word to qualify the additional fact deposed to in a further affidavit. It has become a cliche in legal literature and in particular our adjectival law. The comparative adjective “better” generally conveys improved or more suitable situation or condition. It only means that the further affidavit is an improvement of or on the previous one or ones. See SENTINAL ASSURANCE CO. LTD V SOCIETE GENERALE BANK (NIG) LTD (1992) 2 NWLR (Pt. 224) 495 at 503. If the purpose of affidavit is to provide evidence and in particular in a case initiated vide the Originating Summons which pleading and evidence are by affidavit duly sworn to containing facts, such facts sworn to in such affidavit, counter affidavit or further and better affidavit or further are better counter affidavits constitutes evidence upon which the Court can act to determine issues in controversy as in this case at hand. See POLICY AND STATEGIC STUDIES AND ANOR V. FABIAN O. O. OSIGWE AND ANOR (2008) 6 NWLR (Pt. 1083) 239 at 252,

NWOSU V IMO STATE ENVIRONMENTAL SANITATION AUTHORITY AND ORS (1990) 2 NWLR (Pt. 135) 688. It therefore stands to reason that where a cause is contested on affidavit evidence, the deponents are considered as witnesses. It is then incumbent on the Court to treat the affidavits as the oral evidence of the witnesses supported by the documents or annexures if any. See ALHAJI JIBRIN BABALE V MR. INNOCENT EZE (2011) 11 NWLR PART. 1257, 48 at pp. 105-106, SENTINEL ASSURANCE CO. LTD V SOCIETE GENERALE BANK NIG LTD (1992) 2 NWLR (Pt. 224) pg. 503, MARAYA PLASTIC IND. LTD & ANOR V INLAND BANK OF NIG. PLC. (2002) 7 NWLR (Pt. 765) 109 at 117.
In the light of all the foregoing, what is left to be considered is the appropriateness or otherwise of the act of striking out of the Appellants Further and Better Counter Affidavit. The Appellants complaint is that the striking out of their Further and Better Counter Affidavit constitute an infringement on the fundamental right of fair hearing contrary to S. 36(1) of the Constitution of the Federal Republic of Nigeria 1999. The question is what is fair hearing.

Fair hearing means a trial conducted according to all legal rules formulated to ensure that justice is done to all parties in a matter or cause. Put in another way, it is the trial of a case or conduct of proceedings according to all relevant rules of ensuring that justice is done. In addition, it involves a situation where having regard to all the circumstance of the case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the Court was fair to all parties to the proceedings hence it is said to mean a trial conducted according to all the legal rules formulated to ensure that justice is done to all parties. See PRINCEWILL VS USMAN (1990) 5 NWLR (Pt. 150) 274 at 284, MILITARY GOVERNOR OF IMO STATE V NWAUWA (1997) NWLR (Pt. 490) 490 at 709, MOHAMMED V OLAWUNMI (1990) 2 NWLR (Pt. 133) 458; SALEH V MONGUNO AND ORS (2003) 1 NWLR (Pt. 801) 221 at 246. A hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard or present his case or call evidence. That is to say that the right lies in the procedure followed in the determination of a cause and not necessarily the correctness of

the decision arrived at in a case. See FBN PLC V TSA IND. LTD (2010) 4-7 SC (Pt. 1) 242, BAMGBOYE V UNIVERSITY OF ILORIN (1999) 6, SC (Pt. 11) 72, ARAKA V EJEAGWU (2001) 12 SC (Pt. 1) 99. Considering the complaint of the Appellants in this appeal which in essence is an invitation on this Court to consider whether or not the trial Court has been generally fair on the basis of equality to all the parties. In this circumstance therefore, it is incumbent on this Court to look at the totality of the trial with a view of determining whether or not an equal opportunity has being afforded to parties to fully ventilate their grievance. See PAM AND ANOR V MOHAMMED AND ANOR (2008) 5-6 SC (Pt. 1) 83, AMANCHUKWU V. THE FEDERAL REPUBLIC OF NIGERIA (2009) 2 -3 SC (Pt. 1) 93. In the instance appeal and as I have said somewhere before now in this judgment, that the Court struck out the Appellants’ Further Counter affidavit and refused to consider same, saying that it constitute an abuse of Court process and there after went ahead to consider the Further and Better Affidavit and reply address of the Respondents as Plaintiffs before coming to the conclusion reached thereat

in my humbly view constitute an infringement of the fundamental right of the Appellants to fair hearing. I accordingly so hold. The right to be heard is one of the twin pillars of natural justice i.e. “Audi Alteram partem” and “Nemo judex in causa sua” meaning hear the other side and that no one should be a judex in his own cause. See PEPPLE V GREEN AND ANOR (1990) 4 NWLR (Pt. 142) 108 at 118, SALEH V MONGUNO AND ORS (2003) 1 NWLR (Pt. 801) 221 at 246; BAMGBOYE V UNI. ILORIN (1999) 10 NWLR (Pt. 622) 290.
Having concluded in this appeal that the trial Court failed to consider the Further and Better Counter affidavit which for all intent and purposes constitute additional fact in support of his opposition to the claim of the Appellants herein called Further and Better Counter Affidavit, it then stand to reason that the right to fair hearing on the part of the Appellants has being breached hence the trial is not fair. Thus, there is a violation of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999. I therefore resolve issues 2 and 3 in favour of the Appellants. It therefore means

that the Court has failed to consider all the material placed by parties before it. Having not done that, the outcome of the trial reach thereat by the learned trial Judge is perversed and hence a miscarriage of justice is occasioned. Where the trial Court fails to consider the evidence of any of the parties before reaching a conclusion, a retrial will be ordered. See UMEOJIAKO V EZENAMUO (1990) 1 NWLR (Pt. 126) 253, N.A.B. LTD V SHUAIBU (1991) 4 NWLR (Pt. 186) 450, GLORYLUX ASST. IND. V N.P.F.M.B. (1993) 7 NWLR (Pt. 305) 341, AGBAJE V ADIGUN (1993) 1 NWLR (Pt. 269) 261.

The need to further consider issues 1 and 4 is rendered otious. Accordingly, I set aside both the finding and conclusion of the trial Court striking out the Further and Better Counter Affidavit by the Appellants and same is restored as a potent process of the Appellants in their defence to the claim of the Respondents and to be considered along with other processes filed by parties.

Further to this, and in consequence I find merit in the appeal and same be and is hereby allowed.

The judgment of the High Court of Justice delivered on 22nd day of November, 2018 in Suit No. PLD/L26CV/2017 is hereby set aside.

Order is made remitting back the suit to the Court below for retrial. By this order therefore, the Hon. Chief Judge of Plateau State is directed to reassign this case to another judge other than Hon. Justice S. J. Bakfur for expeditious hearing and determination on all the existing processes filed by respective party.
Parties to bear their respective cost.

TANI YUSUF HASSAN, J.C.A.: I read in draft the lead judgment of my learned brother, MUDASHIRU NASIRU ONIYANGI, JCA just delivered. My learned brother has thoroughly dealt with the issues in this appeal. I have nothing useful to add. I abide by the consequential order made therein.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother MUDASHIRU NASIRU ONIYANGI, J.C.A., and I am in agreement with his reasoning and conclusion; accordingly, I also allow the appeal, set aside the judgment of the lower Court and order a retrial of the case before another Judge of the High Court of Plateau State.
I order that parties bear their costs.

Appearances:

N. Yilji Esq. PSC, with him, N. D. Dashe Esq. For Appellant(s)

S. Obende Esq. with him M. A. Dawam Esq. and R. M. Piwuna Esq. For Respondent(s)