HUNPONU-WUSU v. SKETCH BOX (NIG) LTD & ORS (2021)

HUNPONU-WUSU v. SKETCH BOX (NIG) LTD & ORS

(2021)LCN/14945(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, January 15, 2021

CA/L/91/2016

RATIO

JURISDICTION: ATTITUDE OF THE COURT TO ISSUE OF JURISDICTION

The law compels the Courts to accord premier attention to issue of jurisdiction, which is numero uno in adjudication, when raised in any proceedings. See Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193. I will obey this legal commandment so as not to insult the law. PER OBANDE FESTUS OGBUINYA, J.C.A.

JURISDICTION: NATURE OF JURISDICTION

Jurisdiction, a mantra in adjudication, connotes the authority/power of a Court to determine a dispute submitted to it by contending parties in any proceeding. See Ajomale v. Yaduat (No. 1) (1991) 5 SCNJ 172; Mobil Pro. Co. Untltd. v. LASEPA (2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunnaya (1977) 1 IM SLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1.
A Court of law is invested with jurisdiction to hear a matter when: “1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”. See Madukolu v. Nkemdilim (2006) 2 LC 208 (1961) NSCC (Vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387. The three ingredients must co-exist in order to infuse jurisdiction in a Court.

Where a Court is drained of the jurisdiction to entertain a matter, the proceeding germinating from it, no matter the quantum of diligence, dexterity, artistry, sophistry, transparency and objectivity injected into it, will be marooned in the intractable web of nullity. See Elugbe v. Omokhafe (2004) 18 NWLR (Pt. 905) 319; Lokpobiri v. Ogola (2016) 3 NWLR (Pt. 1499) 328; Garba v. Mohammed (supra); Isah v. INEC (supra). PER OBANDE FESTUS OGBUINYA, J.C.A.

PROCEDURE: WIDE DICHOTOMY BETWEEN NON-PAYMENT OF FILING FEES AND INADEQUATE PAYMENT OF FILING FEES

To begin with, there is a wide dichotomy/gulf between non-payment of filing fees and inadequate payment of filing fees. They are not coterminous and mutually exclusive in their consequences on an action. See SPDN LTD. v. Agbara (2016) 2 NWLR (Pt. 1496) 353. Undoubtedly, it is settled law that failure to pay filing fees renders a process, or an action, incompetent which will oust a Court of its jurisdiction to adjudicate over it. See Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252; Okolo v. UBN Ltd. (2004) 3 NWLR (pt. 859) 87; O.O.M.F. Ltd. v. NACB Ltd. (2008) 12 NWLR (Pt. 1098) 412; Akpaji v. Udemba (2009) 6 NWLR (Pt. 1138) 545; Ogwe v. IGP (2015) 7 NWLR (Pt. 1459) 505; NAOC Ltd. v. Nkweke (2016) 7 NWLR (Pt. 1512) 588; G.E. Int’l Operations (Nig.) Ltd. v. Q-Oil & Gas Services Ltd. (2016) 10 NWLR (Pt. 1520) 304. This is because, filing a process or action denotes “payment by the litigant of the appropriate filing fees as assessed by the appropriate or designated Registrar of the Court concerned.” See O. O. M. F. LTD. v. NACB LTD. (supra) at 429, per Onnoghen, J.S.C. (now CJN); Sule v. Orisajimi (2019) 10 NWLR (Pt. 1681) 513. PER OBANDE FESTUS OGBUINYA, J.C.A.

COURT: ATTITUDE OF THE COURT TO RAISING SUO MOTU ISSUES

Indisputably, the law seriously frowns on a Court raising an issue suo motu, on its own motion, and deciding same without input from the parties. Such an untoward judicial exercise will drag the Court into the arena of conflict as well as impinge on the inviolable rights of parties to fair hearing as entrenched in Section 36 (1) of the Constitution, as amended. See INEC v. Ogbadibo LG (2016) 3 NWLR (Pt. 1498) 167; Gwede v. INEC (2014) 18 NWLR (Pt. 1438) 56; Egbuchu v. Continental Merchant Bank Plc. (2016) 8 NWLR (Pt. 1513) 192; Adedayo v. PDP (2013) 17 NWLR (Pt. 1382) 1; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229; Mainstreet Bank Ltd. v. Binna (2016) 12 NWLR (Pt. 1526) 316 Mabamije v. Otto (2016) 13 NWLR (Pt. 1529) 171 A-G., Fed. v. A-G., Anambra State (2018) 6 NWLR (Pt. 1615) 314; Ogar v. Igbe (2019) 9 NWLR (Pt. 1678) 534. However, it is not an inelastic rule of law. It admits of certain exceptions. The need for address by parties becomes unnecessary when: “(a) the issue relates to the Courts own jurisdiction; (b) both parties are/were not aware or ignore a statute which may have bearing on the case…. (c) … on the face of the record serious questions of the fairness of the proceedings is evident.” See Omokuwajo v. FRN (2013) 9 NWLR (Pt. 1359) 300 at 332, per Rhodes – Vivour, J.S.C.; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592; Effiom v. C. R. S. I. E. C. (2010) 14 NWLR (Pt. 1213) 106; Gbagbarigha v. Toruemi (2013) 6 NWLR (pt. 1350) 289; Kusamotu v. APC (2019) 7 NWLR (Pt. 1670) 51; Garba v. Tsoida (2020) 5 NWLR (Pt. 1716) 1. PER OBANDE FESTUS OGBUINYA, J.C.A.

APPEAL: NATURE OF AN APPEAL AGAINST COSTS

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Jamilu Yammama Tukur Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

JUSTICE OLUSHOLA HUNPONU-WUSU (RETIRED) AS ADMINISTRATOR OF THE ESTATE OF CHIEF S.T. HUNPONU-WUSU OWNERS OF 119A, FUNSO WILLIAMS AVENUE, IPONRI, SURULERE APPELANT(S)

And

SKETCH BOX (NIG) LTD 2. MR. J.A. ADEGUN (SENIOR MAGISTRATE II SITTING AT THE MAGISTRATES’ COURT OF LAGOS STATE) 3. THE DEPUTY SHERIF, HIGH COURT OF LAGOS STATE 4. MR. OLUSOTO MICHAEL (SHERIFF, HIGH COURT OF LAGOS STATE) RESPONDENT(S)

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the correctness of the decision (ruling) of the High Court of Lagos State, holden at Lagos (hereinafter abridged to “the lower Court”) coram judice: A.M. Lawal, J., in Suit No. LD/228MR/2014, delivered on 21st October, 2015. Before the lower Court, the appellant and the second-fourth respondents were the defendants while the first respondent was the claimant.

The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. On 20th August, 2013, an Environmental and Special Offences Court, presided over by His Worship, A.A. Paul, made an order against the first respondent and the owner of the premises known as No. 119A Funsho Williams Avenue, Surulere, Lagos State. The first respondent had a private agreement with the Enforcement Unit of the Ministry of Environment to allow it to occupy the premises till 15th November, 2013 and vacate same. On 10th and 30th September, 2013, the second respondent, His Worship J.A. Adegun, made ex parte orders directing the first respondent to vacate the premises. Following those orders,

the third and fourth respondents went to the premises to enforce those orders and carted away the first respondent’s goods to the premises of the lower Court. The first respondent brought an application, filed on 10th October, 2013, which sought for the discharge of the orders of 10th and 30th September, 2013. The second respondent heard the application and, in a ruling, delivered on 14th February, 2014, it refused the application. The first respondent then filed Suit No. LD/228MJR/2014, an ex-parte application, on 11th March, 2015, in the lower Court, for an order for an extension of time and leave to apply for an order of certiorari to remove into the lower Court for the purpose of being quashed the ex parte orders made by the second respondent on 10th and 30th September, 2013 in Suit No. SOCE/33/2013. The lower Court granted the ex parte application on 16th March, 2015. The appellant filed an application, on 18th May, 2015, to set aside the order of 16th March, 2015. The first respondent reacted to it by filing counter-affidavit and written address. The appellant filed a further affidavit and reply on points of law. In a considered ruling, delivered

on 21st October, 2015, found at pages 1-10 of the additional record, the lower Court dismissed the application with costs against the appellant.

The appellant was dissatisfied with the decision. Hence, on 3rd November, 2015, the appellant lodged a notice of appeal which is copied at pages 919-925, Volume II, of the record. Subsequently, with leave of this Court, the appellant filed an amended notice of appeal on 29th December, 2017, which hosts ten grounds, and prayed this Court as follows:
(i) Allow the appeal;
(ii) An Order of this Honourable Court setting aside the decision of the Honourable Justice A.M. Lawal of the Lagos High Court sitting in Lagos made on 21st October, 2015 wherein the Court dismissed the Appellant’s application dated 18th May, 2015 seeking to set aside and/or discharge in its entirety the Order of 16th March, 2015 granting leave to the 1st Respondent to apply for an Order of Certiorari.
(iii) An Order of this Honourable Court granting the application dated 18th May, 2015 by setting aside and/or discharge in its entirety the Order of 16th March, 2015 granting leave to the 1st Respondent to apply for an Order of Certiorari.

IN THE ALTERNATIVE TO THE ABOVE RELIEF
(iv) An Order directing the Chief Judge of the Lagos State High Court to reassign the matter to another Judge of the Lagos State High Court for hearing of the Appellant’s application dated 18th May, 2015 and any other application.
(v) Cost of the Appeal.

Thereafter, the parties, through counsel, filed and exchanged their respective briefs of argument in line with the procedure for hearing civil appeals in this Court. The appeal was heard on 19th October, 2020.

During its hearing, learned appellant’s counsel, Oladipo Osinowo, Esq., adopted the appellant’s brief of argument, filed on 16th February, 2018, and the appellant’s reply brief, filed on 22nd May, 2019, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the first respondent, P.E. Tagbo, Esq., adopted the first respondent’s brief of argument, filed on 4th June, 2018 but deemed properly filed on 6th May, 2019, as forming his reactions to the appeal. He urged the Court to dismiss it. The second-fourth respondents were duly served, but they filed no briefs of argument.

In the appellant’s brief of argument, learned counsel distilled eight issues for determination to wit:
1. Whether the 1st Respondent misrepresented facts in obtaining the Orders made on 16th March, 2015.
2. Whether the lower Court was right In refusing to set aside its ruling of 21st October, 2015, following concealment of material facts in respect of the Orders dated 10th and September, 2013, sought to be quashed before the lower Court.
3. Whether in view of the subsisting order of Court of competent jurisdiction made on 14th February, 2014, dismissing the 1st Respondent earlier application seeking to set aside the orders of 10th and 30th September, 2013, the subsequent order made on 16th March. 2015, granting leave to the Respondent to seek to set aside the same orders made on the 10th and 30th September, 2013 is not a nullity.
4. Whether the failure of the lower Court to consider the Appellant’s Reply on points of Law and properly evaluate the affidavit evidence before reaching its decision did not breached the Appellant’s right to fair hearing.
5. Whether having regard to the

ratio decendi in the case of MR. PIUS ILOKA & ANOR V. DONATUS ENEMUO & ORS. (2013) LPELR-20380 (CA), the order made on 16th March, 2015 extending time for the 1st Respondent ought not to be set aside when the 1st Respondent did not pay appropriate default/late filing penalty.
6. Whether the award of cost of N60,000 (Sixty Thousand Naira) by the lower Court against the Appellant was not punitive and excessive.
7. Whether having regard to the fact that the Appellant had indicated his challenge to the originating processes in his defence, it can be said that he had waived his right or acquiesced to the irregularity of the originating process.
8. Whether the deficiency in payment of appropriate fees in respect of Court processes affects the validity of such Court processes.

In the first respondent’s brief of argument, learned counsel crafted five issues for determination viz:
(i) Whether the 1st Respondent misrepresented or concealed material facts before the Lower Court in seeking extension of time and leave to bring the Originating Notice of Motion for an Order of Certiorari.
(ii) Whether the Lower Court was right

to refuse to set aside and/or discharge the orders made on 16th March, 2015 granting leave to the 1st Respondent/Applicant to file an Originating Notice of Motion for Certiorari on the ground that the Appellant/4th Respondent had taken steps in the proceeding after becoming aware of the irregularity.
(iii) Whether the Lower Court was right to grant the 1st Respondent leave to file an Originating Notice of Motion for Certiorari even though the Magistrate Court refused its earlier application to set aside the Orders of 10th and 30th September, 2013.
(iv) Whether the Lower Court failed to consider the Appellant’s Further Affidavit, Reply on Points of Law and the decision in PIUS ILOKA & ANOR v. DONATUS ENEMUO & ORS in reaching its decision of the 21st October, 2015.
(v) Whether the cost awarded against the Appellant by the Lower Court is excessive.

A close look at the two sets of issued shows that they are identical in substance. In fact, the first respondent’s issues can be conveniently subsumed under the appellants. For this reason of sameness, I will decide the appeal on the issues canvassed by the appellant; the undoubted owner of the appeal.

Arguments on the issues:
Issue one
Learned appellant’s counsel submitted that the first respondent’s application was not made within 3 months of the orders of 10th and 30th September, as required by Order 40 Rule 4 of the High Court of Lagos State (Civil procedure) Rules, 2012 (the High Court Rules) hence the need for an order of extension of time. He stated that the first respondent did not present material facts and misrepresented facts that the time started counting from 14th February, 2014 which was a ground to set the leave granted aside. He relied on Nwadiaro v. The President and Member of Customary Court, Ossomala (2016) LPELR-40925 (CA); Okeke v. Okoli (2000) 1 NWLR (Pt. 642) 641; Akuma Ind. Ltd. v. Ayman Enterprises Ltd. (1999) 13 NWLR (Pt. 633) 65; UTB v. Dolmetsch Pharmacy (2007) All FWLR (Pt. 385) 434.

On behalf of the first respondent, learned counsel submitted that it was a mere error without any fraudulent intention to mislead the Court. He relied on Teriba v. Adeyemo (2010) 11 NWLR (Pt. 1211) 242. He added that it was a mistake of counsel which could not be used to punish the

litigant. He cited FHA v. Emelie (2013) 5 NWLR (Pt. 1347) 281.

Issue two
Learned appellant’s counsel contended that the first respondent concealed that: it was aware of the ruling of 20th August, 2013, refused to abide by it, that the orders of 10th and 30th September, 2013 were made to enforce that ruling and that the ruling 14th February, 2014 was subsisting without appeal. He said if it had revealed all those material facts its application could not have been granted. He cited Gallaher Ltd. v. British American Tobacco (Nig.) Ltd. (2015) 13 NWLR (Pt. 1476) 325. He observed that parties could not vary or negotiate orders of Court without recourse to it. He referred to Mobil Oil (Nig.) Ltd. v. Assan (1995) 8 NWLR (Pt. 412) 129. He insisted that the lower Court should have set aside the leave on ground of concealment of material facts. He cited UTB v. Dolmetsch Pharmacy (supra).

For the first respondent, learned counsel submitted that those material facts were disclosed in the application.

Issue three
Learned appellant’s counsel argued that since the ruling of 14th February, 2014 was not appealed against/set aside,

the first respondent was stopped, under issue estoppel, from challenging the order of 30th September, 2013. He relied on Rafukka v. Kurfi (1996) 6 NWLR (Pt. 453); Bwacha v. Ikenya (2011) 3 NWLR (Pt. 1235) 610. He observed that previous decision would be binding until set aside. He cited Kamalu v. Umunna (1997) 5 NWLR (Pt. 305) 321; Nigergate v Niger State Govt., (2008) All FWLR (Pt. 406) 1938. He described the first respondent’s application as an abuse of Court process. He referred to Mabamije v. Otto (2016) LPELR-26058 (SC).

On the side of the first respondent, learned counsel submitted that the application made the ruling of 14th February, 2014 otiose. He relied on ACB Plc v. Nwaigwe (2011) 7 NWLR (Pt. 1246) 380; Onyekwuluje v. Benue State Govt., (2005) 8 NWLR (Pt. 928) 614; MHWUN v. Minister of Labour and Productivity (2005) 17 NWLR (Pt. 953) 120.

Issue four
Learned appellant’s counsel stated the importance of fair hearing – its absence would vitiate proceeding. He relied on Atano v. A-G., Bendel State (1988) 2 NWLR (Pt. 75) 132; Aluko v. Ajiboye (2012) All FWLR (Pt. 653) 1953; Aiyetan v. NIFOR (1987) NWLR (Pt. 59) 48.

He asserted that the lower Court failed to consider the appellant’s submissions and facts in his affidavit which caused a breach of his right to fair hearing and same rendered the whole proceedings a nullity. He cited Egbuche v. Egbuche (2013) LPELR-22512 (CA); Nyesom v. Peterside (2016) LPELR-40036 (SC); Uzuda v. Ebigah (2009) 15 NWLR (Pt. 1163) 1; Audu v. FRN (2013) 5 NWLR (Pt. 1348) 397.

On behalf of the respondent, learned counsel posited that the lower Court considered the appellant’s further affidavit, reply on points of law and the case of Iloka v. Enemuo (2013) LPELR-20380 (CA). He referred to pages 1,2,4-5, 8 and 9 of the additional record. He persisted that the appellant was not denied of his right to fair hearing. He cited Victino Fixed Odds Ltd. v. Ojo (2010) 8 NWLR (Pt. 1197) 486.

Issue five.
Learned appellant’s counsel submitted that the lower Court wrongly failed to follow the decision in Iloka v. Enemuo (supra) and set aside its decision because of default/late filing penalty. He cited Ogwe v. IGP (2015) 1-2 SC 91; Omega Bank Plc. v. Govt., of Ekiti (2007) All FWLR (Pt. 386) 658; Nigeria Agip Oil Co. Ltd. v. Nkweke

(2016) LPELR-26060; Order 44 Rule 4 of the High Court Rules.

On the part of the respondent, learned counsel contended that payment of inappropriate fees amounted to an irregularity that would not nullify the proceedings. He referred to Akpaji v. Udemba (2009) 6 NWLR (Pt. 1138) 545; ACB v. Henshaw (1990) 1 NWLR (Pt. 129) 646; Ogwe v. IGP (2015) 7 NWLR (Pt. 1459) 505; Order 5 Rule 1 (2) of the High Court Rules.

Issue six.
Learned counsel argued that the cost of N60,000 awarded against the appellant was punitive and was not a judicious and judicial exercise of discretion of the lower Court. He relied on Akinrele v. Yagboyaju (2011) 26 WRN 47; Layinka v. Makinde (2002) 10 NWLR (Pt. 775) 358; Vandighi v. Hale (2014) LPELR-24196 (CA); ACB v. Nwaigwe (2000) 1 NWLR (Pt. 640) 203. He urged the Court to reverse the cost award.

For the 1st respondent, learned counsel posited that the cost awarded was not excessive and the lower Court duly exercised its discretion judicially and judiciously before the award. He cited Order 49 Rule (11) of the High Court Rules; Olokunlade v. Samuel (2011) 17 NWLR (Pt. 1276) 290; Akinbobola v. Fisko (1991) 1 NWLR (Pt. 167) 270.

Issue seven
Learned appellant’s counsel submitted that the appellant filed a conditional appearance and never waived his right to challenge the grant of the orders of 16th March, 2015. He narrated the features of waiver of rights. He cited Auto Import-Export v. Adebayo (2005) 19 NWLR (Pt. 959) 44; Fawehinmi Cons. Co. Ltd. v. O.A.U (1998) 6 NWLR (Pt. 553) 171; Ugwuanyi v. Nicon Insurance Plc (2013) 11 NWLR (Pt. 1366).

On behalf of the 1st respondent, learned counsel argued that the appellant’s filing of counter-affidavit, on 1st April, 2015, without first filing a motion to set aside the order of 16th March, 2015 amounted to taking step in the proceedings and acquiescence in the irregularity. He cited Zakirai v. Muhammad (2017) 17 NWLR (Pt. 1597) 181; Noibi v. Fikolati (1987) 1 NWLR (Pt. 52) 619; Ogbaegbe v. FBN Plc (2005) 15 NWLR (Pt. 957) 357; Compagnie Noga D’importation Et D’exportation S.A. v. Nigeria Produce Marketing Board (1968) All NLR 570; Kano State Urban Dev. Board v. Fanz Const. Co. Ltd. (1990) 4 NWLR (Pt. 142) 1; Onward Enterprises Ltd. v. MV “Matrix” (2010) 2 NWLR

(Pt. 1179) 530; Amasike v. The Registrar-General CAC (2010) 13 NWLR (Pt. 1211) 337; NUB Ltd. v. Samba Petroleum Co. Ltd. (2006) 12 NWLR (Pt. 993) 98.

Issue eight
Learned appellant’s counsel stated the importance of jurisdiction. He cited Sylva v. INEC (2015) LPELR-24447 (SC). He reasoned that the first respondent’s application was filed after the time (3 months) allowed by Order 40 Rule 4 of the High Court Rules and the lower Court had no jurisdiction to hear it. He claimed that the first respondent paid inadequate default fees which denied the lower Court of jurisdiction to hear its application. He referred toUkpe v. Registered Trustees of the Apostolic Church of Nigeria (2012) LPELR-19709 (CA); Order 44 Rule 4 of the High Court Rules; Iloka v. Enemuo (supra); Udofel Ltd. v. Skye Bank Plc (2014) LPELR-22742 (SC); Okolo v. UBN Ltd (2004) 1 SC (Pt. 1) 1; Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252; Ogwe v. IGP (supra).

Resolution of the issue
A clinical examination of issues five and eight, clearly reveals that they are intertwined and share a common mission/target: to puncture the lower Court’s grant of the first

respondent’s application. Given this interwoven judicial relationship, I will, in order to conserve the scarce judicial time and space, amalgamate them and fuse their considerations. The hub of the conjoined issues is plain. They centre on the jurisdiction of the lower Court to hear the first respondent’s application, which ignited the appellant’s application that mothered the appeal, in the face of insufficient payment of filing/default fees thereon. The law compels the Courts to accord premier attention to issue of jurisdiction, which is numero uno in adjudication, when raised in any proceedings. See Okwu v. Umeh (2016) NWLR (Pt. 1501) 120; Brittania-U (Nig.) Ltd. v. Seplat Pet. Co. Dev. Ltd. (2016) 4 NWLR (Pt. 1503) 541; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR (Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193. I will obey this legal commandment so as not to insult the law.

(2002) 18 NWLR (Pt. 798) 1; Ndaeyo v. Ogunnaya (1977) 1 IM SLR 300; Ebhodaghe v. Okoye (2004) 18 NWLR (Pt. 905) 472; Garba v. Mohammed (2016) 16 NWLR (Pt. 1537) 144; A.-G., Kwara State v. Adeyemo (2017)1 NWLR (Pt. 1546) 210; Isah v. INEC (2016) 18 NWLR (Pt. 1544) 175; Angadi v. PDP (2018) 15 NWLR (Pt. 1641) 1.
A Court of law is invested with jurisdiction to hear a matter when: “1. it is properly constituted as regards numbers and qualifications of members of the bench, and no member is disqualified for one reason or another; and 2. the subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and 3. the case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction”. See Madukolu v. Nkemdilim (2006) 2 LC 208 (1961) NSCC (Vol. 2) 374 at 379, per Bairamian F. J., Tukur v. Taraba State (1997) 6 SCNJ 81; Dairo v. UBN (2007) 16 NWLR (Pt. 1029) 164; Okereke v. Yar’Adua (2008) 12 NWLR (Pt. 1100); Saraki v. FRN (2016) 3 NWLR (Pt. 1500) 531; Oni v. Cadbury Nig. Plc. (2016) 9 NWLR

(Pt. 1516) 80; Diamond Bank Ltd. v. Ugochukwu (2016) 9 NWLR (Pt. 1517) 193; Okpe v. Fan Milk Plc. (2017) 2 NWLR (Pt. 1549) 282; Bello v. Damisa (2017) 2 NWLR (Pt. 1550) 455; Osi v. Accord Party (2017) 3 NWLR (Pt. 1553) 387. The three ingredients must co-exist in order to infuse jurisdiction in a Court.

Now, as already noted, the gravamen of the appellant’s chief grievance, indeed his trump card on the twin issues, is that adequate filing/default fees were not paid for the first respondent’s application which drained the lower Court of the requisite jurisdiction to entertain it. To begin with, there is a wide dichotomy/gulf between non-payment of filing fees and inadequate payment of filing fees. They are not coterminous

and mutually exclusive in their consequences on an action. See SPDN LTD. v. Agbara (2016) 2 NWLR (Pt. 1496) 353. Undoubtedly, it is settled law that failure to pay filing fees renders a process, or an action, incompetent which will oust a Court of its jurisdiction to adjudicate over it. See Onwugbufor v. Okoye (1996) 1 NWLR (Pt. 424) 252; Okolo v. UBN Ltd. (2004) 3 NWLR (pt. 859) 87; O.O.M.F. Ltd. v. NACB Ltd. (2008) 12 NWLR (Pt. 1098) 412; Akpaji v. Udemba (2009) 6 NWLR (Pt. 1138) 545; Ogwe v. IGP (2015) 7 NWLR (Pt. 1459) 505; NAOC Ltd. v. Nkweke (2016) 7 NWLR (Pt. 1512) 588; G.E. Int’l Operations (Nig.) Ltd. v. Q-Oil & Gas Services Ltd. (2016) 10 NWLR (Pt. 1520) 304. This is because, filing a process or action denotes “payment by the litigant of the appropriate filing fees as assessed by the appropriate or designated Registrar of the Court concerned.” See O. O. M. F. LTD. v. NACB LTD. (supra) at 429, per Onnoghen, J.S.C. (now CJN); Sule v. Orisajimi (2019) 10 NWLR (Pt. 1681) 513.
The charge against the first respondent’s application is that of inadequate payment of filing/default fees. However, it paid the filing fees as

assessed by the Court registrar. The shortfall is a classic exemplification of inadequate payment of filing fees which does not divest a Court of jurisdiction. In Ogwe v. I.G.P. (2015) 7 NWLR (Pt. 1459) 505 at 528, Fabiyi, J.S.C., confirmed:
It is basic to say it without any form of hesitation that based on the position of this Court in the case of Akpaji v. Udemba (supra) payment of inadequate filing fees is a mere irregularity. The usual remedy should be an order that the appropriate filing fees or its shortfall be paid. Such a shortfall has nothing to do with the jurisdiction to hear the appeal as in the instant appeal…
See also NAOC Ltd. v. Nkweke (2016) 7 NWLR (PT. 1512) 588; GE Int’l Operations (Nig.) Ltd v. Q-Oil & Gas Service Ltd. (supra); Rasaki v. Ajijola (No.1) (2018) 7 NWLR (Pt. 1617) 13; A.T.S & Sons v. B.E.C. (Nig) Ltd. (2018) 17 NWLR (Pt. 1647) 1.
Nota bene, the error in the computation of the filing/default fees was that of the lower Court’s registry, not the first respondent’s, which has one of its primary duties as assessment/calculation of fees for litigants. In the eyes of the law, the

first respondent should not be punished for the mistake that is not traceable to it. The insufficient/part-payment of the filing/default fees for the respondent’s application, which is in the heat of extermination, does not taint it with any irremediable defect that will contaminate its validity/viability and de jure, strip the lower Court of the vires to adjudicate over it. In effect, the lower Court did not fracture the law when it entertained the application in the presence of deficiency of filing of default fees. In effect, all the diatribes, which the appellant’s counsel heaped against the judicious exercise of the lower Court on the point, pale into insignificance. They are disabled from their birth. In the end, I have no choice than to resolve the conflated issues five and eight against the appellant and in favour of the first respondent.

That takes me to the treatment of issue six. It is another issue that orbits around the perimeter of jurisdiction. The meat of the issue is simple and falls within a lean scope. It chastises the lower Court’s award of N60,000 costs against the appellant. Curiously, the feuding parties did not

address this Court on the propriety or otherwise of this Court to entertain the issue. Hence, I am propelled by law to query the vires of this Court to hear it suo motu. I will justify my action shortly.

unnecessary when: “(a) the issue relates to the Courts own jurisdiction; (b) both parties are/were not aware or ignore a statute which may have bearing on the case…. (c) … on the face of the record serious questions of the fairness of the proceedings is evident.” See Omokuwajo v. FRN (2013) 9 NWLR (Pt. 1359) 300 at 332, per Rhodes – Vivour, J.S.C.; Aderibigbe v. Abidoye (2009) 10 NWLR (Pt. 1150) 592; Effiom v. C. R. S. I. E. C. (2010) 14 NWLR (Pt. 1213) 106; Gbagbarigha v. Toruemi (2013) 6 NWLR (pt. 1350) 289; Kusamotu v. APC (2019) 7 NWLR (Pt. 1670) 51; Garba v. Tsoida (2020) 5 NWLR (Pt. 1716) 1.

To begin with, I take shelter under the canopy of the various exceptions to the doctrine of suo motu, displayed above, to raise the point in that the issue, as will unveil anon, relates to this Court’s own jurisdiction and the contending parties ignored a statute, the Constitution, the fons et origo of our laws, which might have a bearing on it. The casus belli on the issue appertains to costs awarded to first respondent as a successful party in the appellant’s application. It is at the discretion of Court to award costs

which discretion must be exercised judicially and judiciously. See NNPC v. Klifco (Nig) Ltd. (2011) 10 NWLR (Pt. 1255) 209; Olusanya v. Osinleye (2013) 7 NWLR (Pt. 1367) 148; Luna v. C.O.P, Rivers State (2018) 11 NWLR (Pt. 1630) 269; Mekwunye v. Emirates Airlines (2019) 9 NWLR (Pt. 1677) 191.

It is settled law, beyond any peradventure of doubt, that an appeal against costs is not as of right. It is incumbent on party who appeals against an order of costs to obtain leave of Court or the appeal/ground will be infested with incompetence, see Oketade v. Adewunmi (2010) 8 NWLR (Pt. 1195) 63, Section 241 (2) (c) of the Constitution, as amended.
In due fidelity to the expectation of the law, I have visited the appellant’s amended notice of appeal, filed on 29th December, 2017, which warehouses a legion of ten grounds of appeal. I have perused them alongside their army of particulars with the finery of a toothcomb. Interestingly, they harbour no equivocation. I am unable to locate, even with the prying eagle-eye of a Court, where the appellant disclosed that he appealed against the award of the costs with the blessing of this Court or the lower Court as

decreed by the sacrosanct prescription of Section 241 (2) (c) of the Constitution, as amended. The appellant, in his infinite wisdom, starved this Court of any concrete evidence of appeal against the award with the imprimatur of either the lower Court or this Court.
In the sight of the law, leave in this context, signifies permission. See S.U. Ojemen v. Momodu (1983) 1 SCNLR 188; Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 7181(1987) 2 NSCC, Vol. 18, 1219; Garuba v. Omokhodion (2011) 14 NWLR (Pt. 1269) 145; Otu v. ACB Int’l Ltd. (2008) 3 NWLR (Pt. 1073) 179. Where leave of Court, trial or appellate, is required for filing an action/process and a party ignores seeking and obtaining the requisite leave before filing same, the action/process is rendered incompetent. See UBN Plc. v. Sogunro (2006) 16 NWLR (Pt. 1006) 504; Garuba v. Omokhodion (supra); Thor Ltd. v. FCMB Ltd. (2002) 4 NWLR (Pt. 757) 427; Ugboaja v. Akitoye-Sowemimo (2008) 16 NWLR (Pt. 1113) 278; Akinyemi v. Odu’a Inv. Co. Ltd. (2012) 17 NWLR (Pt. 1329) 209; Okwuagbala v. lkwueme (2010) 19 NWLR (Pt. 1226) 54; Nwaolisah v. Nwabufoh (2011) 14 NWLR (Pt. 1268) 600; Njemanze v. Njemanze

(2013) 8 NWLR (Pt. 1356) 376; lmegwu v. Okolocha (2013) 9 NWLR (Pt. 1359) 347; Ugwu v. State (2013) 14 NWLR (Pt. 1374) 257. Indubitably, the appellant failed to obtain leave of Court to appeal against the award of costs of N60,000. The failure is a costly one that has caustic consequences on the issue. It is plagued by incompetence and this Court is not clothed with the garment of jurisdiction to handle it. Consequently, I strike the issue six out for being incompetent.

Having dispensed with the jurisdictional issues, I reverse/retreat to settle issue one. It is canalised within a narrow compass. It bemoans the lower Court’s grant of the first respondent’s application in the glare of its misrepresentation of facts, id est, that time commenced on 14th February, 2014 instead of 30th September, 2013. That factual representation was contained in the first respondent’s counsel’s letter for payment of default fees which is wrapped at page 760, Volume II of the mountainous record. In paragraph 6 of the first respondent’s counter-affidavit, located at page 793, Volume II of the wordy record, its counsel owned the

statement as inadvertent error without any intention to defraud the Court or the public of its revenue.

It is decipherable from the averment in that paragraph 6 of the counter-affidavit, that the alleged miscalculation/misrepresentation is a classic exemplification of error of counsel. In the view of the law, an error is “something done by a person which is incorrect or which should not have been done”. See Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 357 at 513, per Muhammad J.S.C. Human beings are prone to mistakes on the footing of fallibility. This has received judicial recognition. See Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt. 109) 250. The general position of the law is that the Courts do not form the habit of punishing a litigant for inadvertent errors of his counsel, see Wassah v. Karah (2015) 4 NWLR (Pt. 1449) 37; Abah v. Monday (2015) 14 NWLR (Pt. 1480) 569; SPDCN Ltd. v. Agbara (2016) 2 NWLR (Pt. 1496) 354; Adegbite v. Amosu (2016) 15 NWLR (Pt. 1536) 405; Adegbola v. Idowu (2017) 17 NWLR (Pt. 1595) 353; Adeniyi v. Tina George Ind. Ltd. (2019) 16 NWLR (Pt. 1699) 560.
The bounden duty of a Court is to decide the rights of the

parties, in consonance with the law, and not to penalise them for their unavoidable mistakes. A grant of the appellant’s application on account of counsel’s innocent errors would have snowballed into visiting the sins of counsel on the first respondent. It would smell of judicial sacrilege, and subjecting justice to mockery, to grant the appellant’s application on the footing of mistakes owned and attributable to the first respondent’s counsel. That is not the raison d’etre for the existence of Courts of law and justice. The lower Court was firma terra, in law, when it found, at page 6, lines 18 and 19, of the slim additional record, that “This Court could not find any misrepresentation or concealment by the Applicant {the first respondent} as alleged by the 4th Respondent” {the appellant}. As a result, I will not hesitate to resolve the issue one against the appellant and in favour of the first respondent.

I proceed to handle issue two. The marrow of the issue is narrow. It castigates the lower Court’s refusal to set aside its decision of 16th March, 2015 in the presence of concealment of material facts.

The alleged concealed facts were chronicled in the appellant’s brief, videlicet: it was aware of the ruling of 20th August, 2013, refused to abide by it, that the orders of 10th and 30th September, 2013 were made to enforce that ruling and that the ruling 14th February, 2014 was subsisting without appeal. It is elementary law that an order of Court obtained/procured on the basis of material concealment or misrepresentation is submissive to setting aside for non-disclosure of material facts. See R-Benkay (Nig.) Ltd. v. Cadbury (Nig.) Plc (2012) 9 NWLR (Pt. 1306) 596.

I have, in due allegiance to the desire of the law, visited the record: the spinal cord of every appeal. My port of call is the abode of the first respondent’s application which monopolise pages 111-230, Volume 1, of the expansive record. I have given a microscopic perusal to it. Admirably, it is comprehension-friendly. Those catalogued facts, which the appellant accused the first respondent of their non-disclosure are graphically captured in the statement of facts supporting the grounds upon which the reliefs are sought encased between pages 117-128, volume I, of the record.

They are replicated in the verifying affidavit, which is a mirror image of the statement, occupying pages 129-139, volume 1 of the record. Thus, the first respondent’s application, which stirred the appellant’s application, the offspring/progeny of which parented the appeal, was not guilty of the charge of concealment/hoarding of material facts. Indeed, it was a pseudo-charge which was uncharitable and unsustainable. The lower Court did not, in the least, defile the law when it “could not find any concealment or misrepresentation” against the first respondent’s application. It will smack of injudiciousness to tinker with a finding that has not shown any hostility with the law. I resolve the issue two against the appellant and in favour of the first respondent.

At this juncture, it is the time to handle issue three. The kernel of the issue is plain. It queries the propriety of the first respondent’s application for judicial review, via certiorari, when it had not exercised its rights of appeal over a decision of the Magistrate’s Court made against it on 14th February, 2014.
By way of prefatory observation,

the first respondent’s application was erected on the writ of certiorari. Certiorari is one of the prerogative writs available to the High Court, the lower Court, in the exercise of its supervisory jurisdiction/control over an inferior Court, Tribunal or a body entrusted with the performance of a judicial or quasi-judicial function to ensure that it does not exceed its jurisdiction or commit irregularities thereby making its decision prima facie bad. See Azika v. Gov., Northern Region (1961) All NLR (Pt. 4) 379; Okupe v. F.B.I.R (1974) 4 SC 83; Nwaoboshi v. Military Admin. Delta State (2003) 11 NWLR (Pt. 831) 305; State v. Lawal (2013) 7 NWLR (Pt. 1354) 565. The writ of certiorari has a constitutional flavour as it traces its ancestry to the provision of Section 272 (2) of the Constitution, as amended, see Lawal v. State (supra). Its primary function is to ensure that inferior Courts or anybody reposed with the performance of judicial or quasi-judicial duties/assignments keep within the limits of the jurisdiction bestowed on it by statute that creates it or else its proceedings will be removed into the High Court to be quashed. It is meant to checkmate

abuse/misuse of powers by those inferior Courts or bodies. See J.S.C., C.R.S. v. Young (2013) 11 NWLR (Pt. 1364) 1; Onyekwuluje v. Benue State Govt., (2015) 16 NWLR (Pt. 1484) 40; Korea Nat. Oil Corp v. O.P.S. (Nig.) Ltd. (2018) 2 NWLR (Pt. 1604) 394. The strict procedure for application for certiorari, under the umbrella of judicial review, is ordained in the various High Court Rules. See Ohakim v. Agbaso (2010) 19 NWLR (Pt. 1226) 172. The four conditions that will necessitate for an order of certiorari are: lack of jurisdiction, breach of rules of natural justice, error of law on the face of the record and decision obtained by fraud or collusion. See State v. Lawal (supra); Esabunor v. Faweya (2019) 7 NWLR (Pt. 1671). In judicial review, which warehouses an order of certiorari, an appellate Court is concerned with the legality and not the merit of the proceedings of the affected inferior Court or body. See A.C.B. Plc v. Nwaigwe (2011) 7 NWLR (Pt. 1246) 380.
It is discernible from these brief highlights, that a right to apply to an order of certiorari is available to a party aggrieved by the decision of an inferior Court or a body charged with the

responsibility of execution of judicial or quasi-judicial functions within the ambit of the four conditions chronicled above. The right runs pari passu with the right of appeal. In A.C.B. Plc v. Nwaigwe (supra) at page 395 thereof, Onnoghen, J.S.C. (later CJN), incisively declared:
The above provision of the rule is very much in accord with the decision in Re: Umuolu Village Group Court, Ex Parte Macaulay 20 NLR 111 AT 113 where it was held that where there is a right of appeal from the decision of the Court that made the order, a party who is dissatisfied with the order may nevertheless apply for a writ of certiorari instead of appealing but he cannot do so until the statutory time for appealing has lapsed.
The above decision clearly shows that an appeal is an alternative remedy for an order of certiorari; …. The above clearly shows that you cannot have both at the same time or one after the other. You must choose between the two.
In State v. Lawal (supra), at page 584 thereof, Mohammed, J.S.C. (later CJN), insightfully, proclaimed:
In other words, once grounds for bringing application for order certiorari exists, a person

aggrieved by the decision or order of an inferior Court or Tribunal, can apply for an order of certiorari to issue, even though he has a right of appeal also against the order or decision.
It stems from these magisterial pronouncements, issued in these ex-cathedra authorities, that a party endowed with the rights of a judicial review, via an order of certiorari, and appeal can, in deserving circumstances, exercise one in an alternative to the other. The law does not grant him the unbridled licence to exercise the two incompatible rights simultaneously or contemporaneously. It is a trite rudimentary law, that where the law donates two optional rights to a party, an election to exercise one of them in preference to the other does not constitute an abuse of Court process. SeeR-Benkay (Nig.) Ltd. v. Cadbury (Nig.) Plc (2012) 9 NWLR (Pt. 1306) 596. In the instant case, which fathered this appeal, the first respondent exercised its right, accruing to it under the sanctuary of the order of certiorari, and abandoned its right of appeal. Its application was made on 11th March, 2015. That was months after its right to appeal against the ruling of 14th February,

2014 had expired. It did not pursue the two disharmonious rights concurrently. Thus, it acted in due obeisance to the spirit and letter of the law. Its action did not, in the least, constitute an affront to the law to warrant the intervention of this Court. In the result, I resolve the issue three against the appellant and in favour of the first respondent.

It is now the turn of issue four. The crux of the issue is clear. It quarrels with the lower Court’s decision on the ground that it failed to consider his reply on points of law and evaluate his affidavit evidence which occasioned a breach of his right to fair hearing. Put simply, the appellant, under the issue, accused the lower Court’s decision as an erosion of his inviolable right to fair hearing as guaranteed in Section 36 (1) of the Constitution, as amended. Fair hearing connotes a trial which is conducted in accordance with all the legal rules formulated to ensure that justice is done/dished out to parties to the cause. See Eze v. FRN (2017) 15 NWLR (Pt. 1589) 433; Ardo v. INEC (2017) 13 NWLR (Pt. 1583) 450; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1; Akingbola v. FRN

(2018) 14 NWLR (Pt. 1640) 395. Due to its olympian status in the appeal, it is germane to display some of the notable features of fair hearing – a mantra which, nowadays, competes with jurisdiction for prominence in adjudications.
The ancient concept of fair hearing traces its paternity to divinity. It was a common law doctrine which has metamorphosed into the corpus of our jurisprudence and firmly entrenched in Section 36(1) of the Constitution, as amended. It donates to the citizens the inviolable right to ventilate their grievances on the altar of the two concrete pillars of natural justice to wit: audi alteram partem – hear the other side and nemo judex in causa sua – no one should be a judge in his own case. The whole essence of fair hearing, which is coterminous with fair trial, connotes giving parties to any proceedings, be it judicial or administrative, an equal opportunity to present their cases. It follows that fair hearing is totally divorced from correctness of a decision. It centres on the cardinal principle that a fair-minded person who watched the proceedings before a Court or administrative or quasi-judicial body,

should conclude that it exhibited even handedness/fairness in apportioning justice to the feuding parties. See O.O.M.F. Ltd v. NACB (2008) 12 NWLR (Pt. 1098) 412; Nwanegbo v. Olawole (2011) 37 WRN 101; Kim v. State (1992) 4 NWLR (Pt. 233) 17; Newswatch Comm. Ltd. v. Atta (2006) 12 NWLR (Pt. 993) 144; FRN v. Akabueze (2010) 17 NWLR (Pt. 1223) 525; S & D Const. Co. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 487; Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Nigeria Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56; J.S.C., Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Mpama v. FBN Plc (2013) 5 NWLR (Pt. 1346) 176; Abah v. Monday (2015) 14 NWLR (Pt. 1480) 569; Gov., Zamfara State v. Gyalange (2013) 8 NWLR (Pt. 1357) 462; Achuzia v. Ogbomah (2016) 11 NWLR (Pt. 1522) 59; Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124; Labour Party v. Bello (2017) 2 NWLR (Pt. 1548) 148; Darma v. Ecobank (Nig.) Ltd. (2017) 9 NWLR (Pt. 1571) 480.
The apex Court, in Baba v. Civil Aviation (1991) 7 SCNJ (Pt. 1) 1 at 24/(1991) 5 NWLR (Pt. 192) 388 at 423, per Nnaemeka-Agu, J.S.C., evolved the parameters to guide the Court to ensure fair hearing to include the right of the

person to be affected:
(i) to be present all through the proceedings and hear all the evidence against him;
(ii) to cross-examine or otherwise confront or contradict all the witnesses that testify against him;
(iii) to have read before him all the documents tendered in evidence at the hearing;
(iv) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial to the party, save in recognised exceptions;
(v) to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and
(vi) to give evidence by himself, call witnesses if he likes, and make oral submissions either personally or through a counsel of his choice.
See also J.S.C., Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Eze v. FRN (supra); Olayioye v. Oyelarin 1 (2019) 4 NWLR (Pt. 1662) 351; La Wari Furniture & Baths Ltd. v. FRN (supra); S & D Const. Co. Ltd. v. Ayoku (supra).
Where a party’s sacred right to fair hearing is flouted, no matter the quantum of fair-mindedness, dexterity, artistry and objectivity injected into the

proceeding hosting the breach, it will be mired in the ocean of nullity. See Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452; C.K & W. M. C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Eze v. Unijos (supra); Ezenwaji v. U.N.N. (2017) 18 NWLR (Pt. 1598) 485; Poroye v. Makarfi (2018) 1 NWLR (Pt. 1599) 91; APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1; S.A.P. Ltd. v. Min., Petroleum Resources (2018) 6 NWLR (Pt. 1616) 391; Zenith Plastics Ind. Ltd v. Samotech Ltd. (2018) 8 NWLR (Pt. 1620) 165. This is a confluence point where want of fair hearing and jurisdiction embrace themselves to vitiate proceedings that give birth to denial of fair hearing. See O.O.M.F. Ltd. v. NACB Ltd. (supra); Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Achuzia v. Ogbomah (supra); Apeh v. PDP (2016) 7 NWLR (Pt. 1510) 153; Abah v. Monday (2015) 14 NWLR (Pt. 1480) 569.
As already noted, at the cradle of this issue, the main anchor of the appellant’s agitation is the lower Court’s non-consideration and non-evaluation of his reply on points of law and affidavit evidence respectively. I have, in due loyalty to the desire of the law, consulted the record, the bible of

every appeal, at the residence of the decision, which is in the heat of expunction/decimation, which monopolises pages 1-10 of the flat additional record. I have burrowed through it with meticulosity. Admirably, it is rebellious to any ambiguity. Quite per-contra to the appellant’s vacuous contention, the lower Court, precisely at pages 1,2,4,5, 8 and 9 of the decision, housed in the additional record, gave due and unbiased consideration and evaluation to his reply on points of law and affidavit evidence. In essence, none of the parameters, which guides the Court, as the barometer, to ensure fair hearing, catalogued above, was infracted by the lower Court vis a vis the appellant’s case. It flows that the appellant was duly heard on the application. He was accorded equal treatment, opportunity and consideration with his opponent, the first respondent, in the hearing of the application. It must be place record, apace, that the duty of the Court is to provide the enabling and hospitable environment and grant feuding parties equal chance to present their cases. It is, to my mind, decipherable from the decision, that the lower Court, in an

unbiased manner, created a congenial atmosphere for the appellants to ventilate his grievance, setting aside order of certiorari, as engrained in his application.
The appellant weaved the gravamen of his grouse on the lower Court’s refusal of his application. The point must be underscored that his grudge is on a totally different wicket. I think, with due reverence, learned appellant’s counsel mixed up the issues. Hearing a matter/application and the outcome of it are two divergent streams in the variegated tributaries of adjectival law. They are mutually exclusive. While the want of the former, in deserving circumstances, can denude a party’s right to fair hearing, the latter may be impotent to impregnate it. The consequence is plain. The lower Court’s refusal to grant the appellant’s application cannot, under any guise or any stretch of elastic imagination, tantamount to an infringement of his inalienable right to fair hearing as enshrined in Section 36 (1) of the Constitution, as amended. This is because, he was heard before the decision of the lower Court. See Dec Oil & Gas Ltd. v. Shell (Nig.) Gas Ltd. (2019) 14

NWLR (Pt. 1692) 273. In effect, the appellants’ inviolate right to fair hearing was not, in the least, curtailed by the lower Court. It is, therefore, not available for him to harvest/harness from the vineyard of the beneficent provision of Section 36(1) of the Constitution, as amended. In Adebayo v. A. – G., Ogun State (2008) 7 NWLR (Pt. 1085) 201 at 221 and 222, the apex Court, per Tobi, J.S.C., admonished:
…The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case.
This magisterial pronouncement, in the ex-cathedra authority, with due respect, deflates and exposes the poverty of the learned appellant’s counsel’s alluring argument on the point. It is disabled from birth. It cannot fly.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In the light of this brief juridical survey, the lower Court’s decision, as it relates to the appellants’ application, is not guilty of the appellant’s pseudo-charge of breach of his right to fair hearing levelled against it. The appellant starved this Court of any justification that will compel me to mow down the decision of the lower Court, with the unbiased sword of this Court, on the footing of lack of fair hearing. In conclusion, I am left with no option than to resolve the issue four against the appellant and in favour of the respondent.

Lastly, it remains to thrash out issue seven. The kernel of the issue is disobedient to equivocation. It probes into the correctness of the lower Court’s finding that the appellant acquiesced in or waived his right to challenge the irregularity of the originating process. The aftermath of the other issues, which lean against the appellant, renders the consideration of this issue a footnote and otiose as it snowballs into the constricted four walls of an academic issue. In Plateau State v. A-G., Fed (2006) 3 NWLR (Pt. 967) 346 at 419, Tobi, J.S.C., incisively explained the term, thus:

A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity.
It is settled law, that a Court is drained of the necessary jurisdiction to adjudicate over academic disputes. This is so even if their determination will enrich the jurisprudential content of the law. Such academic questions are divorced from live issues which engage the adjudicative attention of the Courts. See A.-G., Anambra State v. A.-G., Fed. (2005) 9 NWLR (Pt. 931) 572; Ugba v. Suswam (2014) 14 NWLR (Pt. 1427) 264; Salik v. Idris (2014) 15 NWLR (Pt. 1429) 36; FRN v. Borishade (2015) 5 NWLR (Pt. 1451) 155; Danladi v. T.S.H.A. (2015) 2 NWLR (Pt. 1442) 103; FRN v. Dairo (2015) 6 NWLR (Pt. 1452) 141; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229; Dickson v. Sylva (2017) 10 NWLR (Pt. 1573) 299; Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343.
Flowing from this inelastic position of the law, the appellant’s issue seven, to all intents

and purposes, is rendered idle. Its resolution in favour of the appellant will not advance, an inch, the chances of the success of the appeal. Nor will it, if found in favour of the respondent, erode the strength of its case on the appeal. Put starkly, its consideration by this Court, even if found in favour of the appellant or the respondent, will be of no judicial utilitarian value to either of them premised on the result of the other issues. It is trite that Courts are not clad with the requisite jurisdiction to adjudicate over academic issues. In total obedience to the law, I strike out the issue seven for being an incompetent academic issue.

On the whole, having resolved all the live issues against the appellant, the destiny of the appeal is obvious. It is bereft of any grain of merit and deserves the reserved penalty of dismissal. Consequently, I dismiss the appeal. The parties shall bear the respective costs they incurred in the prosecution and defence of the doomed appeal.

JAMILU YAMMAMA TUKUR, J.C.A.: I had the advantage of reading in draft the lead judgment just delivered by my learned brother OBANDE FESTUS OGBUINYA, J.C.A. and I adopt

the judgment as mine with nothing further to add.

BALKISU BELLO ALIYU, J.C.A.: I agree with the judgment just delivered by my learned brother, OBANDE FESTUS OGBUINYA, J.C.A.

Appearances:

Oladipo Osinowo, Esq. For Appellant(s)

P.E. Tagbo, Esq. – for first respondent
No legal representations for second-fourth respondents. For Respondent(s)