KATSINA FLOUR MILLS LTD v. ALH. YAHAYA ALASAN MIKAILU CO. LTD & ANOR (2020)

KATSINA FLOUR MILLS LTD v. ALH. YAHAYA ALASAN MIKAILU CO. LTD & ANOR

(2020)LCN/14176(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Thursday, May 07, 2020

CA/K/103/2018

Before Our Lordships:

Saidu Tanko Hussaini Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

KATSINA FLOUR MILLS LIMITED APPELANT(S)

And

1. ALH. YAHAYA ALASAN MIKAILU CO. LTD 2. ALH. YAHAYA ALASAN MIKAILU RESPONDENT(S)

RATIO

WHETHER OR NOT IT IS EVERY IRREGULARITY THAT AUTOMATICALLY NULLIFIES AN ENTIRE PROCEEDINGS

It is not every irregularity that automatically nullifies an entire proceedings, particularly where the irregularity did not in any way materially affect the merit of the case or issue on hand. See: Egbo vs. Agbara (1997) 1 NWLR (Pt. 481); Emedo vs. State (2002) 15 NWLR (Pt. 789) 196. PER HUSAINI, J.C.A.

WHEN THE QUESTION ARISES AS TO WHETHER OR NOT A PARTY ENTITLED TO RECEIVE NOTICES OF HEARING WAS SERVED AT ALL

It follows therefore that when the question arises as to whether or not the party entitled to receive Notices of hearing was served at all, the question can only be resolved by the production of “proof of service” on the said party. It is for the person or party who alleges that the other party had been served or put on Notice to prove that, that other party was served either by electronic means or that the party was served personally or though the address he left for service on him. It is only by this proof can the party entitled to hearing Notice, can be said to be “aware” of the date so fixed for hearing. In Achuzia vs. Ogbomah (2016) ALL FWRL (Pt. 830) 1261, 1270, the Court held thus:
“The Court must satisfy itself of proof of service of Notice of hearing before it proceeds to hear the matter and give judgment on the evidence adduced in before it. Where the Court fails to do so and proceeds to hear the case, the proceedings, no matter how well conducted is a nullity.”
See further the decision in Darma vs. Eco Bank (Nig) Ltd (2017) 9 NWLR (Pt. 1971) 480, 511. Where service of fresh Notice is required failure to serve same will render proceedings as a nullity. See: Zenith Bank vs. Archibong (2013) LPELR-20204 (CA); Ezechukwu vs. Onwuka (2016) LPELR-26055 SC; Akpabuyo Local Govt. Vs. Edim (2003) 1 NWLR (Pt. 800) 23; Faudu vs. Maikori (2003) 9 NWLR (Pt. 2003) 9 NWLR (Pt. 826) 643.
I am not oblivious of such decisions as in Effanga vs. Rogers. Rogers (2003) 7 FWLR (Pt. 157) 1058 and Ohajunwa vs. Obelle (2008) 3 NWLR (Pt. 1075) 52, 78 which says that there would be no need to serve hearing Notice on a party if counsel was in Court on the date adjournment was given. In such a situation it is for the party who alleges that the counsel was in Court on that date, to prove it . PER HUSAINI, J.C.A.

SAIDU TANKO HUSAINI, J.C.A.(Delivering the Leading Judgment): The Respondents were Plaintiffs at the High Court of Katsina State. At the said High Court, the Respondents via a Motion Exparte filed by them dated 16th day of July, 2015 sought to place their suit under the Undefended List. The Court granted the said Exparte application and thus placed the said suit under the Undefended List and adjourned the matter for hearing as such. The Appellant as defendant then, thereafter filed their Notice of Intention to defend the suit on the merit based on the supporting affidavit filed along with the Notice. The trial Court saw reason with the appellant and accordingly, ruled in their (Appellant) favour hence the suit was transferred to the General Cause List. Parties were ordered to file and Exchange pleadings. They did.

In the amended statement of claim at pages 143 – 145 of record, the Respondents as Plaintiffs claim against the Appellant for the breach of contractual relationship, payment of the sum of N8,989,700.00 (Eight Million, Nine Hundred and Eighty Nine Thousand, Seven Hundred Naira) and the cost of prosecuting the suit. In the amended

statement of defence at pages 146 – 148 of the record of appeal, the appellant denied the claim of not having any contractual relationship with the Respondents let alone the claim of indebtedness against her in the sum of N8,989,700.00 (Eight Million, Nine Hundred and Eighty Nine Thousand, Seven Hundred Naira) or any other sum.

Issues having been joined via pleadings, the suit proceeded into hearing. Respondents as Plaintiffs called evidence of three (3) witnesses and tendered documents which were admitted and marked as Exhibits 1, 2, 3A, 4, 5, 6A – 6F, 7A – 7F, 8A – 8D, 9, 10 and 11.

At the close of evidence of witnesses for the Respondents/Plaintiffs, the Appellant/Defendant opened their defence and called Dw1. In the course of hearing of defence case, the witness (DW1) sought to tender a loan agreement by which the Appellant obtained loan facilities in the sum of N54,000,000.00 from Unity Bank.

The said loan grant was admitted as Exhibit12. The case was adjourned thereafter for continuation of defence on the 6th December, 2017. Sitting of Court did not however hold on the said 6th December, 2017 on account of other

official engagements of which the Court or Judge was involved.

On the 12th December, 2017 when the case next come up, the Court on the application made by the Plaintiffs through their counsel was constrained to close the case of the defendant and thereafter adjourned the case to the 28th December, 2017 for Judgment. The Appellant, upon becoming aware of the proceedings held on the 12th December 2017, applied, via the Motion, No. KTH/1117/M/2017 dated 18th December, 2017 and sought to set aside the proceedings of 12th December, 2017. The Motion was taken or argued but the trial Court, in the ruling delivered on the 16th January, 2018, the same date, the Motion was argued, refused and dismissed same. The trial Court, proceeded same day/date to deliver Judgment in the case, granting all the reliefs sought by the Respondents as per their claim.

The appeal to this Court is premised on the said judgment delivered on the 16th January, 2018, vide the Notice of appeal dated and filed on the 29th January, 2018, with seven (7) grounds or appeal.

The main record of appeal and Additional Record of Appeal were both transmitted to this Court.

Parties thereafter filed and exchanged their respective briefs of argument. The brief of argument for the Appellant dated the 13th March, 2018 was filed on the same date.

Following the order for extension of time granted in this Court, the Respondents filed their brief of argument on the 21st February, 2019 to which is incorporated, Respondents’ Notice of Preliminary Objection and arguments canvassed thereto at paragraphs 4.0 – 4.8. Respondents had before then, on the 11th February, 2019 issued a Notice by which the Respondents took objection to issue No.2 proposed or distilled in the Appellant’s in brief of argument. That was the setting as at the 30th January, 2020 when the appeal came up for hearing. Parties on both sides were represented by counsel. Mr. Aiyoy, Teryange, learned counsel who appeared for the Appellant, introduced his case and adopted his (Appellant’s) brief of argument to urge on the Court to allow the appeal.

It was at this point, the attention of the Court was invited to the pendency of the Notice of Preliminary Objection filed by the Respondents. Their counsel, Mr. Chidi Ejenwafor, sought to argue same hence the

question arose whether at this point in time, the said notice of Preliminary Objection and argument canvassed in their brief had not abated to render it superfluous and thus abandoned, given a plethora of decisions on this point? See the case of Sani v. Okene Local Govt. Traditional Council (2008) 12 NWLR (Pt. 1162) 691; Maclom Enid Sankey v. Mr. Lucky Okiemite Onayifeke (2013) LPELR – 21997 (CA)

Learned Respondents’ counsel, undaunted as he was, argued that the issue raised vide the Preliminary Objection was fundamental in nature and for which reason, the same can be argued at any time. To him, it is never too late to raise and argue a jurisdictional question as in this case vide the Notice of Preliminary Objection.

That might very well be so. Issues relating to the exercise of jurisdiction by the Courts can be raised at any time and howsoever. This is so because, where a Court has no jurisdiction, the proceedings are a nullity ab intio. See Okoye v. CPMB Ltd (2008) 15 NWLR (Pt. 1110) 335 (SC).

My worry or concern in the instance is not only about the failure of the Respondents’ counsel to raise and argue his objection at the

time he should but whether the objection even if argued can dispose of the appeal in its entirety. That is the question. For all intents and purposes, the procedure of challenging a suit or appeals by way of Preliminary Objection can be resorted to and utilized only where the objection taken will conclusively terminate the hearing of the suit or appeal in its entirety, as the case may be.
Where on the other hand the grouse, even if resolved in favour of the respondent cannot terminate the suit or appeal, then the procedure does not qualify to be brought by way of Preliminary Objection but through a Motion on Notice to strike out that specific point in the suit or appeal. See the decisions in Uko Ikono vs. State (2016) LPELR-41151 (CA); SPDC Nigeria Ltd vs. Amadi (2011) LPELR-3204 (SC); Madubuike vs. Madubuike (2016) LPELR-40679 (CA). The respondent in his Notice of objection had sought to challenge the validity of issue No. 2 distilled and contained in the appellant’s brief of argument. Even if the said objection is resolved in their favour, the appeal does not abate by reason of the existence of issue Nos. 1, 3 and 4 formulated and contained in the

appellant’s brief of argument. To me therefore, respondents’ Preliminary Objection is not well founded and it does not matter that the same was not taken or argued before commencement of hearing of the appeal. The Preliminary Objection being incompetent, it must be struck out and that does it.

I will now focus my attention on the merits of the appeal. Issues formulated for determination of Court in this appeal, from the perspectives of the appellant, in her brief, are as follows:-
“(1) Whether the appellant was given fair hearing by the lower Court in her bid to present her case and defend suit No. KTH/18/2016 before the lower Court proceeded to deliver its judgment (Distilled from Grounds One (1) and Six (6) of the Notice of Appeal)
(2) Whether the lower Court was right when it entered judgment in favour of a non-juristic person (Distilled from Ground Two (2) of the Notice of Appeal)
(3) Whether the lower Court was right when it held that the Respondents have proved their claims against the Appellant and entitled to the grant of all their reliefs as per their Writ of Summons and Statement of Claim (Distilled from Grounds

Three (3), Five (5) and Seven (7) of the Notice of Appeal)
(4) Whether the lower Court was right when it awarded the Respondents reliefs not sought, pleaded or proved by them (Distilled from Ground Four (4) of the Notice of Appeal.”

The Respondents, on their part, in the brief of argument filed on their behalf had, at paragraph 5.1 raised issues similar to those of the Appellant’s stating thus:-
“(1) Whether the appellant’s right to fair hearing was infringed in the course of trial by the lower Court (Distilled from grounds 1 and 6 of the Notice and Grounds of Appeal)
(2) Whether the 2nd respondent (sic) is a non-juristic person to warrant the decision of the lower Court to be set aside by this Court (Distilled from Ground 2 of the Notice and Grounds of Appeal)
(3) Whether the lower Court was right when it held that the respondents have proved their claims against the appellant and entitled to the grant of all their reliefs as per their Writ of Summons and Statement of Claim (Distilled from Grounds 3, 5 and 6 of the Notice and Ground of Appeal)
(4) Whether the lower Court was wrong when it awarded

N100,000.00 (One Hundred Thousand Naira) as damages on favour of the Respondents and N100,000.00 and (One Thousand Naira as cost? (Distilled from 4 of the Notice and Grounds of appeal).”

I want to abide by all the issues raised and contained in the Respondents’ brief of argument in addressing this appeal. Issues No. 1 and 2 raised thereat are precise and direct to the point. These are issues of critical importance as they relate to the question of fair hearing or lack of it, as well as issue of exercise of jurisdiction by the Court below, have been alluded to. I intend to first address those questions and if need be, proceed to consider issue Nos. 3 and 4 raised in the Respondent‘s brief of argument.

ISSUE NO. 1
Whether the appellant’s right of fair hearing was infringed in the course of trial by the lower Court. The position taken by the appellant on this point, is well articulated in the appellant’s brief of argument at pages 6-13. The submission made, but put briefly, is that the appellant and his counsel were not put on Notice relative to the proceedings conducted and taken at the trial Court on the 12th

December, 2017, when the Court ordered that the case of defendant/appellant, be closed. That the Court thereafter, on the said 12th December, 2017 also adjourned the matter to the 28th December, 2017 for judgment. He further argued that efforts made by Appellant to set aside the proceedings of 12th December, 2017 and for them to reopen their defence case was rebuffed by the trial Court, hence, the case of the appellant, it is argued, was not fairly considered and treated. It is further argued that the Appellant was not served with Hearing Notice against the 12th December, 2017. We were referred to the case of Fubara vs. Mimmah (2003) 112 LRCN 2182, 2185 and thus urged to hold that the said proceedings of the 12th December, 2017, leading to the judgment delivered on the 15th January, 2018 rendered the entire proceedings as a nullity and same be set aside. We were referred to the decisions in APC vs. Nduul (2018) 2 NWLR (Pt. 1602) 1, 22-23; Apeh vs. PDP (2016) ALL FWLR (Pt. 824) 1, 18; Achuzia vs. Ogbomah (2016) ALL FWLR (Pt. 830) 1261, 1270; Darma vs. Eco Bank Nig. Ltd (2017) 9 NWLR (Pt. 1571) 480, 511. We were urged to resolve issue No. 1 in favour of the appellant.

ISSUE NO. 2
Whether the 2nd Respondent is a non-juristic person to warrant the decision of the lower Court to be set aside by this Court (Distilled from Ground 2 of the Notice and Grounds of Appeal).

It has been argued for the Appellant, relative to Issue No. 2 that the outfit by the name Alhaji Yahaya Alasan Mika’ilu Co. Ltd is not a juristic person and yet action was instituted against it as a defendant while the trial Court took proceedings and made findings and delivered Judgment in favour of the defendants in that name, among others. We were urged to hold that, action instituted against defendants in that name was incompetent and the trial Court lacked jurisdiction to entertain the matter, citing in his brief, the decision in: Lastma vs. Esezobo (2017) 5 NWLR (Pt.1559) 350, 375; Dairo vs. Regtd Trustees, T. A. D, Lagos, (2018) 1 NWLR (Pt.1599) 62, 76, 80, 90. We were urged to resolve issue No. 2 in favour of the appellant.

In response to issues 1 and 2 above, the respondents or counsel representing them has argued per contra. Relative to issue No. 1, it was argued that the trial Court did not deny the appellant her

right to fair hearing when the Court closed defence case on 12th December, 2017 and set the matter down for judgment which was given thereafter in favour of the respondent. It was argued that the appellant was given ample opportunity and facilities to defend the suit, but that the appellant refused to take advantage of the opportunity given her, hence the appellant cannot be heard to say to the contrary if judgment turned out against it. We were referred to the decision in: Newswatch Communication Ltd vs. Alhaji Aliyu Ibrahim Atta (2006) LPELR-SC 101/2001; Erinfolami vs. SGB Nig Ltd (2008) 7 NWLR (Pt. 1086) 306 (CA); Ikoli Ventures Ltd vs. SPDCN Ltd (2008) 12 NWLR (Pt. 1101) 422 (CA); Akpamgbo Okadigbo vs. Chidi (2015) 3 SCNJ 267.

On the issue of breach of the defendants’ right to fair hearing or otherwise, the Court was urged to look at the facts of the case in the conduct of the proceedings before it. We were referred to the case of Union Bank Nigeria Plc vs. Innocent N. Nwanajuo (2012) LPELR-7914 (CA). It was argued that the matter at the lower Court suffered series of adjournments at the instance of the appellant to enable the Appellant defend the

suit, even when it was obvious that the Appellant as defendant employed delay tactics to prolong the hearing of the suit. Learned Respondents’ counsel in his brief at paragraph 6.9, page 4, gave a run-down of the adjournments granted at the instance of the Appellant but conceded to the fact that there was no sitting on 6th December, 2017, the date originally appointed for continuation of defence case due to the official engagement of the trial Judge. He argued that notwithstanding of all these, the Appellant and counsel were informed of the new date, being the 12th December, 2017 but the appellant and the counsel failed to show up. In this circumstance, it is argued, the trial Court was right to close the case of defence and adjourn the matter for Judgment. We were urged to hold that the right of the Appellant to fair hearing had not been violated hence issue No. 1 should be resolved in favour of the Respondents. Respondents counsel, arguing issue No. 2 debunked all the submissions made by the Appellant on this point. He argued to the contrary, stating that both Respondents are juristic persons, even though the 1st Respondent is an artificial person. He

referred us to the Ruling delivered at the Court below on 5th December, 2016 wherein, the name of the 1st Respondent was corrected to tally with Exhibit 1. He argued that the Ruling was a subsisting order of the trial Court and there being no appeal against that order, the ruling or the amendment done still holds. It is submitted that a decision of a Court of which there is no Notice of appeal, cannot be questioned. We were referred to Anah v. Anah (2008) 7 NWLR (Pt. 1091) 75, Olawepo v. Security and Exchange Commission (2011) 16 NWLR (Pt. 1272) 122; Emeka v. Okadigbo (2012) 18 NWLR (Pt. 1331) 55; Duru v. FRN (2013) 6 NWLR (Pt. 1351) 441. It was argued that the continued use of the name Alhaji Yahaya Mika’ilu Co. Ltd instead of Alhaji Yahya Mika’ilu Co. Ltd, was a mere irregularity and this, it is argued, cannot override the Order of amendment already granted by the Court on 5th Dec. 2016. We were urged to resolve this issue No. 2 in favour of the Respondent.

OPINION
I will begin with issue No. 2. In addressing this point, I will refer to the concluding part to the Judgment of the Court below delivered on the 16/1/2017 at page 192 of the

record of appeal. The Court unarguably, entered Judgment in favour of the Plaintiffs thereby granting all the reliefs sought by them as per the writ of Summons and statement of claim. The Appellant has alleged that the Respondents, or at least, one of them is not a juristic person, known to law and for which reason it is not entitled to any relief or remedy awarded by the trial Court. This is the basis of the complaint under Ground 2 of the Grounds of appeal. Issue No. 2 is derived from Ground 2. Going by the record of appeal, it can be recalled that the question whether or not the 1st plaintiff/Respondent was a juristic person, first arose when the plaintiff through her counsel sought to tender Exhibit 1, the certificate of incorporation of “Alhaji Yahya Alasan Mukailu Co. Ltd”. Although the application was vehemently opposed, the trial Court nonetheless admitted same as Exhibit and marked it as such. The Court further granted the request of the plaintiffs to correct the name of the 1st plaintiff/respondent to reflect the correct name in Exhibit 1. See the proceedings of the Court below starting from page 69 to 75 of the record of appeal,

particularly at page 75 of that record. The trial Court allowed the amendment to be made on account of the wrong use of the name of the 1st Plaintiff/respondent. That was the ruling given on the 5th December, 2016 at the trial Court. Every amendment made takes retrospective effect to the date the original process was filed, in this case, the date the Writ of Summon and the Statement of claim were filed. See the decision in Jatau vs. Ahmed (2003)1 SC (Pt. 11) 118, 125, Rotimi vs. Mcgregor (1974) 11 SC 107, 116; Andy Uba vs. Ukachukwu (2013) LPELR-22045 (CA). The fact that the name (as corrected) was not reflected in the subsequent proceedings leading to Judgment, delivered at the trial Court on 16th January, 2017 is only an irregularity and not every irregularity will vitiate the proceedings of Court and this case is one of them so far as no miscarriage of Justice is shown to have been occasioned. See: Cyril Udeh vs. State (2001) 2 ACLR 3566; Francis Nkie vs. FRN (2011)LPELR-4171 (CA). It is not every irregularity that automatically nullifies an entire proceedings, particularly where the irregularity did not in any way materially affect the merit of the case or

issue on hand. See: Egbo vs. Agbara (1997) 1 NWLR (Pt. 481); Emedo vs. State (2002) 15 NWLR (Pt. 789) 196. On this note therefore, issue No. 2 is resolved against the Appellant and in favour of the Respondents.

The contestation raised and surrounding issue No. 1 relating to whether or not the proceedings of the trial Court should be vitiated on account of want of fair hearing must be resolved by reference to the facts of the case on record, in the conduct of the proceedings at the trial Court. See: Union Bank Nigeria Plc vs. Innocent N. Nwanajuo (supra).
The Appellant as Defendant, at the close of the evidence of Plaintiff/Respondent, opened its own defence and called DW1 as witness. Evidence of DW1 commenced on the 18th July, 2017. See pages 95 on that same day, the Court adjourned proceedings to rule on a point of objection over the admissibility of a document sought to be tendered by defendants. That ruling was not delivered until on the 27th November, 2017. See pages 98-100 of the record of appeal. After the Ruling, the Court in the presence of both counsel adjourned the case to the 6th December, 2017 for continuation of defence. There was no

sitting of Court on the 6th December, 2017 as earlier scheduled until on the 12th December, 2017. See pages 100-101 of the record. On the 12th December, 2017, the defendant and counsel were reported absent but one C. U. Kalu with J. I. Aduwak and C. T. Udeje announced appearance for the plaintiffs now Respondents.
The trial Court, on the application of Plaintiff/Respondents’ counsel, ordered that the case of the defence be closed, given the fact that the defendant and counsel were “aware of today’s date” being the 12th December, 2017. The trial Court proceeded on the said 12th December, 2017 to reserve the case for judgment against the 28th December, 2017. Judgment was eventually delivered on the 16th January, 2018. The Appellant had in the meantime, applied to have the proceedings of 12th December, 2017 set aside to pave way for the defendant/appellant to continue with their defence. That application was refused and dismissed on 16th January, 2018. The lone question therefore is, whether the trial Court was right to close the case of defence as it did on 12th December, 2017 in the absence of proven Notice of Hearing served on the defendant/Appellant against the date?

I have gone through the record of Court before us. Other than the mere assertion made by counsel for the respondent at the sitting of the 12th December, 2017, that the defence and counsel were “aware” of the case fixed against 12th December, 2017, there is no proven case that the defendant/appellant was indeed served any hearing Notice against the 12th December, 2017 given the fact that on the 6th December, 2017 when the case came up for continuation of defence, sitting did not hold.
It follows therefore that when the question arises as to whether or not the party entitled to receive Notices of hearing was served at all, the question can only be resolved by the production of “proof of service” on the said party. It is for the person or party who alleges that the other party had been served or put on Notice to prove that, that other party was served either by electronic means or that the party was served personally or though the address he left for service on him. It is only by this proof can the party entitled to hearing Notice, can be said to be “aware” of the date so fixed for hearing.

In Achuzia vs. Ogbomah (2016) ALL FWRL (Pt. 830) 1261, 1270, the Court held thus:
“The Court must satisfy itself of proof of service of Notice of hearing before it proceeds to hear the matter and give judgment on the evidence adduced in before it. Where the Court fails to do so and proceeds to hear the case, the proceedings, no matter how well conducted is a nullity.”
See further the decision in Darma vs. Eco Bank (Nig) Ltd (2017) 9 NWLR (Pt. 1971) 480, 511. Where service of fresh Notice is required failure to serve same will render proceedings as a nullity. See: Zenith Bank vs. Archibong (2013) LPELR-20204 (CA); Ezechukwu vs. Onwuka (2016) LPELR-26055 SC; Akpabuyo Local Govt. Vs. Edim (2003) 1 NWLR (Pt. 800) 23; Faudu vs. Maikori (2003) 9 NWLR (Pt. 2003) 9 NWLR (Pt. 826) 643.
I am not oblivious of such decisions as in Effanga vs. Rogers. Rogers (2003) 7 FWLR (Pt. 157) 1058 and Ohajunwa vs. Obelle (2008) 3 NWLR (Pt. 1075) 52, 78 which says that there would be no need to serve hearing Notice on a party if counsel was in Court on the date adjournment was given. In such a situation it is for the party who alleges that

the counsel was in Court on that date, to prove it. In that connection, it is for the respondent or the registry (as in this case) to show that the counsel to the appellant was in Court on the 6th December, 2017, and that the date of 12th December, 2017 was taken in his presence.
Assuming that the trial Court was right, when it made the order to close defence case as it did on 12th December, 2017 (and this is not conceded) was the Court right when it adjourned the case for Judgment without the opportunity being given to the parties, the Appellant in particular, to address the Court?
In Sigbenu vs. Imafidon (2008) LPELR-4510 (CA) this court, Per Gumel, JCA held thus:-
“The right of counsel to address the Court after evidence is well known to the law and the Constitution. It must therefore be accorded its rightful place by our Courts. I agree with the learned counsel to the appellant that it is a fundamental requirement of a fair trial. It is a major yardstick to gauge whether a party has been afforded reasonable opportunity to present his case before a Court of law in Nigeria.”

Needless to say, the failure of the trial Court to grant to the appellant the opportunity to address it after the order made to close defence case, violates defendants right to present his case as required by law and the Constitution of FRN, 1999 (as amended). Section 36 refers.
I am one with the appellant over issue No. 1, which is resolved in her favour and against the respondent. In effect, this appeal has merit and same is allowed on this point. There is no further need to address issue No. 3 and 4 raised for determination. The Judgment of the trial Court holden in Katsina, in suit No. KTH/18/2016 delivered on 16th January, 2018 is hereby set aside.

I order for a retrial before another Judge of the Katsina State High Court. This case in effect, is remitted to the Hon. Chief Judge of the State for reassignment to another Judge of the State High Court. There is no order as to costs.
That is the order and Judgment.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother SAIDU TANKO HUSAINI JCA, where the facts and issues in contention have been set out and determined. This Appeal, I agree, has merit and I also allow it. I am in concert with the orders made by my learned brother.

JAMES GAMBO ABUNDAGA, J.C.A.: I have had the advantage of reading the draft judgment delivered by my learned brother, SAIDU TANKO HUSAINI, JCA. I adopt the reasoning and conclusion reached in the judgment. The proceedings of the Court on 12th December, 2017 during which the defence case was closed due to their absence was without prior hearing notice issued and served by the Court on them. Additionally, after their case was closed they were denied their constitutional right of final address. The judgment given in view of the aforementioned defaults is one inflicted with injustice and cannot be allowed to stand. For these reasons and other well-articulated reasoning of my learned brother, I too allow the appeal and set aside the judgment of the lower Court. I also order retrial of the matter before another Judge of the Katsina State High Court.

Appearances:

A. MACHIKA ESQ. For Appellant(s)

U. KALU ESQ. For Respondent(s)