LIFESIGN HEALTHCARE LTD v. SYSMEX EUROPE GMBH & ANOR (2020)

LIFESIGN HEALTHCARE LTD v. SYSMEX EUROPE GMBH & ANOR

(2020)LCN/13997(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Wednesday, March 25, 2020

CA/L/195/2017

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Tijjani Abubakar Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Between

LIFESIGN HEALTHCARE LIMITED APPELANT(S)

And

1. SYSMEX EUROPE GMBH 2. LAB ASSIST LIMITED RESPONDENT(S)

RATIO

SERVICE OF HEARING NOTICE ON AN ABSENT PARTY

Now, the service of hearing notice occupies a pre-eminent position in legal proceedings. In SKENCONSULT NIG LTD vs. UKEY (1981) 1 SC 6 the Apex Court held that service of process is to enable a party appear to defend the matter and due appearance by the party is a fundamental condition precedent before the Court can have competence and jurisdiction. This accords with the requirement of fair hearing and the principle of audi alteram partem. See also NWAOSU vs. NWAOSU (2000) 4 NWLR (PT 653) 351 at 359. The jurisdiction of a Court is a term of comprehensive import embracing every kind of judicial action. It is to a Court what a door is to a house. This is why jurisdiction is a threshold issue and it involves a radical and fundamental question of competence. The service of hearing notice is an essential aspect of our procedural law. It is a jurisdictional issue and a condition precedent to the competence of a Court to assume jurisdiction and adjudicate over the rights of the litigants in the matter: AKINMOSIN vs. MAKINDE (2012) LPELR (19686) 1 (CA), FIRST BANK vs. UDEOZO (2017) LEPELR (43263) 1 at 12-15 and DARMA vs. ECOBANK (2017) 9 NWLR (PT 1571) 480 at 504.
The law is that a hearing notice is a means of getting a party to appear in Court. Therefore the issuance of hearing notice from day to day on the absent party is imperative. The consequence of non-service of hearing notice is that the entire proceedings, no matter how well conducted would be vitiated. This is the prescriptible effect of the right enshrined in both the common law principle of audi alteram partem and the constitutional right to fair hearing enshrined in Section 36 (1) of the 1999 Constitution. See generally DARMA vs. ECOBANK (2017) LPELR (41663) 1 at 35-36 (SC). PER OGAKWU, J.C.A.

WHETHER OR NOT A COURT SHOULD ALWAYS PUT A PARTY ON NOTICE OF DATE OF ITS ADJOURNMENT OF ANY MATTER

This, in my view is the crucial question. In ACHUZIA vs. OGBOMAH (2017) LPELR (40050) 1 at 28, the Apex Court held as follows:
“The law is trite that a Court should always put a party on notice of date of its adjournment of any matter by sending hearing notice to him/it once he was not in Court or represented on a given previous date.”
See also A-G RIVERS STATE vs. UDE (2006) 6-7 SC 54, IMMINENT NIGERIA COMPANY vs. PRUDENTIAL CO-OPERATIVE MICRO-FIANCE BANK (2014) LPELR (22700) 1 at 33-34 and NWAKAJI vs. OSAROLUKA (2014) LPELR (22677) 1 (CA). PER OGAKWU, J.C.A.

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): The Appellant, as Claimant before the High Court of Lagos State, instituted an action against the Respondents in SUIT NO. LD/1633/2007: LIFESIGN HEALTHCARE LIMITED vs. SYSMEX EUROPE GMBH & ANOR. The Appellant claimed the following reliefs:
“a) A Declaration that based on the authorization letter from the 1st Defendant dated 6th September, 2007, the Claimant is the only recognized agent/new partner of the 1st Defendant in Nigeria and is the only organisation recognized to deal with GHAIN and other USAID Implementing partners in the supply of fifty-two (52) KX2IN Sysmex.
b) A Declaration that the Claimant is entitled to be paid commission or fees in the event that the 2nd Defendant has supplied the KX2IN Sysmex to GHAIN and other USAID Implementing partners prior to the filling of this suit.
c) AN ORDER OF PERPETUAL INJUNCTION restraining the 2nd Defendant, its agents, servants and on [sic] privies from dealing with GHAIN and other USAID Implementing partners in Nigeria in the supply of fifty-two (52) Sysmex Systems or any other Sysmex products without noting

the Claimant’s interest as the 1st Defendant’s agent/new partner in Nigeria.
d) AN ORDER of injunction restraining the 2nd Defendant from inducing a breach of contract between the Claimant and the 1st Defendant by its attempt to upstage the Claimant in the supply of fifty-two (52) KX2IN Sysmex Systems to GHAIN and other USAID Implementing partners.
e) AN ORDER (in the alternative to Relief d above) for €2,000,000.00 (Two Million Euros) as damages for inducing a breach of contract between the Claimant and 1st Defendant.
f) AN ORDER of this Honourable Court appointing an official referee or any officer of this Court for the sole purpose of determining the status of the contract (the supply of fifty-two (52) KX2IN Systems to GHAIN); subject matter of this suit and if he so finds that the contract has been executed by the 2nd Defendant, payment to the Claimant of 20% of the cost of the contract being the commission due to the Claimant as agent/distributor and new partner of the 1st Defendant in Nigeria.
g) Special Damages in the sum of €2,000,000.00 (Two Million Euros) against the 1st Defendant for the injury suffered by the

Claimant which was occasioned by the 1st Defendant issuing two letters of authorization to two Companies both of which were participating in the same tender.
h) Payment to the Claimant by the 1st Defendant and 2nd Defendant jointly and severally of sum of €2,000.000.00 (Two Million Euros) or a sum equivalent to 20% (to any other sum on quantum meruit) of the contract sum for work done by the Claimant in convincing the USAID Implementing agencies to standardize on the use of the 1st Defendant’s products.”

The 1st Respondent filed an application wherein it urged the Court to strike out the Appellant’s suit for want of jurisdiction on the grounds, inter alia, that the writ of summons by which the action was initiated was signed in the name of a law firm.

The Appellant was absent at the hearing of the application on 17th February 2016. In its Ruling delivered on 10th March 2016, the lower Court found and held that the application had merit, granted the same and struck out the Appellant’s suit. The Appellant was dissatisfied with the decision of the lower Court and appealed against the same by Notice of Appeal filed on

24th March 2016. The chafed Ruling of the lower Court is at pages 223-227 of the Records, while the Notice of Appeal is at pages 228-231 of the Records.

In obeisance to the Rules of the Court, Records of Appeal were compiled and transmitted and briefs of argument filed and exchanged between the Appellant and the 1st Respondent only. The 2nd Respondent did not file any brief. At the hearing of the appeal, the learned counsel for the Appellant and the 1st Respondent urged the Court to uphold their respective submissions in the determination of the appeal.

The Appellant’s Brief was filed on 25th May 2018 but deemed as properly filed on 15th October 2018. The Appellant distilled four issues for determination as follows:
1. Whether the Learned Trial Judge was right when he held that the Writ of Summons dated 27th December, 2007 which writ was later amended on 21st January, 2009 by order of Court and dated 10th February, 2009 were not signed.
2. Whether the Learned Trial Judge was right when he struck out the suit on the ground that the Writ of Summons and other originating processes were signed by I.O. Iluyomade & C0., a Law firm,

which is not a Barrister and Solicitor of the Supreme Court.
3. Whether the Learned Trial Judge was right when he proceeded to hear the 1st Respondent’s application dated 31st August, 2015 and refused to hear and determine the Appellant’s application dated 9th March, 2016 which application was pending and properly brought before the Court.
4. Whether the Learned Trial Judge was right when he proceeded to hear and determine the 1st Respondent’s application dated 31st August, 2015 in the absence of the Appellant’s Counsel and 2nd Respondent’s Counsel in Court when there was no evidence that hearing notices had been issued and served on the Appellant and the 2nd Respondent.

The 1st Respondent’s Brief was filed on 1st November 2019 but deemed as properly filed on 9th March 2020, wherein two issues were crafted for determination, namely:
1) Whether the lower Court was right when it struck out the Appellant’s suit on the ground that the originating processes by which the suit was commenced were incurably defective?
2. Whether the lower Court was right when it proceeded to hear and determine the 1st

Respondent’s application dated 31st August 2015 in the absence of the Appellant and without countenancing the Appellant’s motion dated 9th March 2016

The Appellant’s issue number four raises the question of fair hearing as it contends that hearing notices were not issued and served on it against the date when the lower court heard the 1st Respondent’s application of 31st August 2015. In view of the fatal consequences of a breach of the right of fair hearing in the trial process, I will consider the Appellant’s issue number four first and thereafter consider the other issues, if it becomes necessary so to do, based on the manner in which the said issue number four is resolved.

ISSUE NUMBER FOUR
Whether the Learned Trial Judge was right when he proceeded to hear and determine the 1st Respondent’s application dated 31st August, 2015 in the absence of the Appellant’s Counsel and 2nd Respondent’s Counsel in Court when there was no evidence that hearing notices had been issued and served on the Appellant and the 2nd Respondent.

SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant

submits that service of hearing notice is very necessary where a party is not present in Court or duly represented and that failure to so serve is a fundamental omission that will lead to any order made being set aside vide SOMAISON KAHONLOR CO LTD vs. ADZEGE (2001) FWLR (PT 68) 1104 ratio 7, SCOTT-EMUAKPOR vs. UKAVBE (1975) 9 NSCC 435 at 439 and JOHN ANDY SONS & CO. LTD vs. MFON (2006) 12 NWLR (PT 995) 461 at 478.

It was stated that the presiding judge of the lower Court was away on official assignment for about seven months and that when the matter was adjourned for the hearing of the 1st Respondents’ application, the Appellant was not in Court and the lower Court did not order for hearing notice to be issued and served on the Appellant against the adjourned date of 17th February 2016. It was asserted that the failure to serve the Appellant a hearing notice for the hearing date of 17th February 2016 divested the lower Court of the jurisdiction to entertain argument on the 1st Respondent’s application on the said date. The case of MADUKOLU vs. NKEMDILIM (1962) SCNLR 31, SCOTT-EMUAKPOR vs. UKAVBE (supra) and MANKANU vs. SALMAN (2005) 4 NWLR

(PT 915) 270 at 302 were referred to.

It was maintained that the lower Court did not sit for a long time when the presiding judge was away on official assignment and that fresh hearing notices ought to have been served on the parties to notify them of when the case would come up, even if it is felt that the party is not diligent. It was stated that it was not for the Court to assume that the party would be aware of the hearing date. The cases of JOHN ANDY SONS & CO LTD vs. MFON (supra) at 478 & 479, CREDIT ALLIANCE FINANCE SERVICES LTD vs. MALLAH (1998) 10 NWLR (PT 569) 341 at 348 and MANKANU vs. SALMAN (supra) at 300-301 were relied upon.

It was conclusively submitted that failure to serve fresh hearing notice, where it is required, is a fundamental vice which renders the proceedings null and void for want of jurisdiction and any orders made will be set aside ex debito justitiae. The cases of ZENITH BANK vs. ARCHIBONG (2013) LPELR-20204 (CA), AGWARANGBO vs. NAKANDE ((2000) 9 NWLR (PT 672) 341 at 359, MACFOY vs. UAC (1961) 3 ALL ER 1169, ADEBAYO vs. PDP (2013) 17 NWLR (PT 1382) 1 at 60 -61, ALAO vs. ACB (2000) 9 NWLR (PT 672) 264 at 298 and

MADU vs. MBAKWE (2008) 10 NWLR (PT 1095) 293 at 317 were cited in support.

SUBMISSIONS OF THE 1ST RESPONDENT’S COUNSEL
The 1st Respondent dealt with the Appellant’s issue number four as its issue number two. The 1st Respondent submits that the Appellant failed and neglected to file any processes in response to the 1st Respondent’s application of 31st August 2015, whether as required by the Rules of the lower Court or at all. It was opined that the Appellant’s right to fair hearing was not breached as the right to be heard is not to be heard at all costs. The Appellant, it was posited, was given the opportunity to present its case but it failed to file any processes and thereby failed to take advantage of the provision of the Rules. The cases of DUKE vs. GOVT OF CROSS RIVER STATE (2013) LPELR-1887 (SC) and ARDO vs. INEC (2017) LPELR -41919 (SC) were referred to.

The 1st Respondent further submits that the Appellant was duly served with the 1st Respondent’s application of 31st August 2015 and that a party to a suit has a duty to take the suit seriously vide NACB LTD vs. OZOEMELAM (2016) 9 NWLR (PT 1517) 376 at 407-408

and OKOTCHA vs. HERWA LTD (2000) 15 NWLR (PT 690) 249 at 258. It was conclusively submitted that the Appellant’s contention on not being served with a hearing notice was merely a clutch at straws and amounted to asking the Court to validate the Appellant’s tardiness.

RESOLUTION
The Appellant’s complaint under this issue falls with a very narrow compass. The contention is that it was not aware of the date fixed for the hearing of the 1st Respondent’s Motion of 31st August 2015 because the lower Court neither issued nor served it with a hearing notice to notify it of the hearing date of 17th February 2016 when the application was heard. It has consequently asserted that the lower Court, having proceeded to hear the application in its absence without ascertaining whether a hearing notice was served on it, is a breach of its right to fair hearing; which rendered the proceedings of 17th February 2016 null and void and eo ipso the Ruling of the lower Court of 10th March 2016 on the said application. With due deference to learned counsel for the 1st Respondent, the issue is not whether the application of 31st August 2015 was served

on the Appellant or whether the Appellant failed to file processes in respect of the said application as required by the Rules of the lower Court. The critical issue and pith of the Appellant’s contention is that it was not notified of the date fixed for the hearing of the application as required by the Rules of Court.

Our odyssey would begin from the proceedings of the lower Court as borne out by the cold printed Records. I will set out in extenso the proceedings of the lower Court of 19th January 2016 as reproduced on page 219 of the Records. It show thus:
“Parties absent
W. Abioye (Mrs.) hold brief of Godwin Etim for 1st defendant
No appearance for Claimant
No appearance for 2nd defendant
Mrs. Abioye: – We have an application dated 31/8/15
Court: – Case adjourned to 17/2/16 for hearing of the motion on Notice dated 31/8/15
Signed
Hon. Justice K.O. Dawodu
Judge”

So at the proceedings of 19th January 2016, the Appellant was absent and it was not represented by counsel. The lower Court then adjourned the hearing of the 1st Respondent’s application dated 31st August 2015 to 17th

February 2016. Translucent on the Record is the fact that the lower Court did not make any order for hearing notice to be served on the absent Appellant and its counsel to notify them of the date fixed for hearing of the said application.

Come the adjourned date of 17th February 2016 and page 220 of the Records shows the following as having transpired:
“Parties absent
Adefolake Adewusi (Miss) for 1st defendant /Applicant
No appearance for Claimant.
Miss Adewusi: – 1st defendant has application dated 31/8/15. There is proof of service dated 21/9/15. The claimant did not file any counter affidavit.
Court: – This application dated 31/8/15 was served on the claimant since 1/9/15 and the Affidavit of service from on 21/9/15 is before the Court. The claimant failed and neglected to file response to the application. The motion is ripe for hearing. Move your application.
Miss Adewusi: – The motion on notice dated 31/8/15 urging the Court to strike out the claimant’s suit herein for want of jurisdiction. The application is supported by 6 paragraph affidavit with 2 exhibit attached we also filed a written address. I adopt

same. I urge the Court to grant the prayer.
Court: – Case adjourned to 10/3/16 for Ruling
Signed
Hon. Justice K.O. Dawodu
Judge”

It is effulgent that at the hearing date of 17th February 2016, the Appellant and its counsel were absent and the lower Court proceeded with the hearing of the 1st Respondent’s application of 31st August 2015, without first ascertaining if the Appellant, which was not in Court when the matter was adjourned on 19th January 2016, was aware of the hearing date. All the service of process referred to in the proceedings of 17th February 2016 pre-dated 19th January 2016 which was the last adjourned date. The service of process referred to was of the pending motion, not of any hearing notice notifying the Appellant of the hearing of the said motion. It is therefore limpid from the Records that hearing notice was not served on the Appellant to notify it of the hearing date of 17th February 2016, when the Respondent’s application of 31st August 2015 was heard by the lower Court.

Now, the service of hearing notice occupies a pre-eminent position in legal proceedings. In SKENCONSULT NIG LTD vs. UKEY (1981) 1 SC 6

the Apex Court held that service of process is to enable a party appear to defend the matter and due appearance by the party is a fundamental condition precedent before the Court can have competence and jurisdiction. This accords with the requirement of fair hearing and the principle of audi alteram partem. See also NWAOSU vs. NWAOSU (2000) 4 NWLR (PT 653) 351 at 359. The jurisdiction of a Court is a term of comprehensive import embracing every kind of judicial action. It is to a Court what a door is to a house. This is why jurisdiction is a threshold issue and it involves a radical and fundamental question of competence. The service of hearing notice is an essential aspect of our procedural law. It is a jurisdictional issue and a condition precedent to the competence of a Court to assume jurisdiction and adjudicate over the rights of the litigants in the matter: AKINMOSIN vs. MAKINDE (2012) LPELR (19686) 1 (CA), FIRST BANK vs. UDEOZO (2017) LEPELR (43263) 1 at 12-15 and DARMA vs. ECOBANK (2017) 9 NWLR (PT 1571) 480 at 504.
The law is that a hearing notice is a means of getting a party to appear in Court. Therefore the issuance of

hearing notice from day to day on the absent party is imperative. The consequence of non-service of hearing notice is that the entire proceedings, no matter how well conducted would be vitiated. This is the prescriptible effect of the right enshrined in both the common law principle of audi alteram partem and the constitutional right to fair hearing enshrined in Section 36 (1) of the 1999 Constitution. See generally DARMA vs. ECOBANK (2017) LPELR (41663) 1 at 35-36 (SC).
The underlying and critical question at the heart of this issue is whether the Appellant was served with a hearing notice against the adjourned date of 17th February 2016. As already stated, the Appellant was not served a hearing notice. Indeed the 1st Respondent has not argued that the Appellant was served a hearing notice. The 1st Respondent’s contention is that the Appellant was served with the application of 31st August 2015, but that it was complacent and tardy and failed to file processes in opposition to the application as required by the Rules of the lower Court. I am not enthused by this contention. Yes, the Appellant was served with the application; yes, the Appellant was

tardy and did not file any process in respect of the application. But was the Appellant aware of the date the application was to be heard? This, in my view is the crucial question. In ACHUZIA vs. OGBOMAH (2017) LPELR (40050) 1 at 28, the Apex Court held as follows:
“The law is trite that a Court should always put a party on notice of date of its adjournment of any matter by sending hearing notice to him/it once he was not in Court or represented on a given previous date.”
See also A-G RIVERS STATE vs. UDE (2006) 6-7 SC 54, IMMINENT NIGERIA COMPANY vs. PRUDENTIAL CO-OPERATIVE MICRO-FIANCE BANK (2014) LPELR (22700) 1 at 33-34 and NWAKAJI vs. OSAROLUKA (2014) LPELR (22677) 1 (CA). So there remained a bounden duty on the lower Court to serve a hearing notice on the Appellant against the hearing date of 17th February 2016, since it was not in Court on 19th January 2016 when that date was fixed for the hearing of the application. Furthermore, the lower Court was equally duty bound to ascertain if a hearing notice was served on the Appellant before proceeding any further with the hearing of the application on 17th February 2016.

From the Records, it is not contested that hearing notice against the fixture of 17th February 2016 was neither issued nor served on the Appellant. It is the constitutional right of a party to be notified of the fixture of a matter fixed for hearing. It is only such notification by the issuance and service of a hearing notice that will afford the party the opportunity of a hearing.
It is incumbent on a trial Court to ensure that the basic minimum constitutional requirement of notifying the Appellant by service of hearing notice on it was complied with. Unfortunately, the lower Court did not ascertain whether the Appellant was served with hearing notice. A hearing notice has been defined as a process by which a party to proceedings is notified of the date the case has been fixed in Court, where he is not otherwise aware of such date. Therefore, service of hearing notice is imperative where a party is not present in Court or duly represented: FOLORUNSHO vs. SHALOUB (1994) 3 NWLR (PT 333) 413 at 430, SO MAI SONKA CO. (NIG) LTD vs. ADZEGE (2001) 9 NWLR (PT 718) 312 and MADUEKE vs. MADUEKE (2011) LPELR (4532) 1 at 22 – 23.
Without ensuring that this basic

minimum constitutional requirement of putting parties on notice had been compiled with, the lower Court proceeded with the matter when the 1st Respondent appeared and the Appellant was not in Court. By all odds, the fact that a party is in Court on the day a matter is slated to come up is not necessarily a confirmation that the other party was actually served with the hearing notice. It is the bounden duty of the Court to ensure that a hearing notice was served on the party who is absent. Where there is no such evidence, to embark on a hearing may be a waste of time, energy and cost, as the decision reached may eventually be declared a nullity and set aside on appeal. Equally, the party affected is entitled to have the same set aside ex debito justitiae. This is because the whole proceedings being a nullity, one cannot foist something on nothing: MACFOY vs. UAC (1962) AC 152 at 160.
The service of hearing notice is a rudimentary and horn-book procedure since the issue of service occupies a pre-eminent position in the adjudicatory process and goes to the very root of the exercise of judicial powers and judicialism. Any proceedings conducted where service

had not been effected on a party who is entitled to a hearing amounts to a violation of the right of fair hearing. As stated by Nnaemeka-Agu, JSC of blessed memory in KOTOYE vs. CBN (1989) 1 NWLR (PT 98) 419 at 448, the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard had in fact been given the opportunity of a hearing by being notified of the date when the matter will be heard. Once an appellate Court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the decision reached is bound to be set aside. See also OTAPO vs. SUNMONU (1987) 2 NWLR (PT 58) 587 at 605.
The Appellant was entitled to be heard before a decision was reached on the 1st Respondent’s application of 31st August 2015. It was not given the opportunity of a hearing as hearing notice was not served on it for the adjourned date of 17th February 2016. See FIRST BANK vs. UDEOZO (supra), MANKANU vs. SALMAN (supra) at 292-293, OGUNDOYIN vs. ADEYEMI (2001)

LPELR (2335) 1 (SC) and AKINNIRAN vs. ADE (2017) LPELR (42175) 1 at 11-19.
Repetition is said to be the daughter of learning; so I iterate that the essence of service of hearing notice on a party is to intimate him of the hearing date which is very fundamental to the administration of justice since it confers on the trial Court the jurisdiction to entertain the matter. Failure to notify the party of the hearing of the matter renders the proceedings null and void as the Court lacks the jurisdiction to entertain the matter. See ESSIEN vs. EDET (2004) 5 NWLR (PT 867) 519, BADA vs. ATUNBI (2011) LPELR (9265) 1 at 11 – 14 and COMPAGNIE GENERALE DE GEOPHYSIQUE NIG LTD vs. AMINU (2015) LPELR (24463) 1 at 19 – 20.
In the circumstances of this matter, the object of service of hearing notice is to notify the Appellant of the date when the pending application of 31st August 2015 is to be heard: KIDA vs. OGUNMOLA (2006) LPELR (1690) 1 at 14. It cannot be confuted that failure to serve process where service of process is required goes to the root of our conception of the proper procedure in litigation. Service is a pre-condition to the exercise of

jurisdiction by the Court. Where there is no service the subsequent proceedings are a nullity ab initio. Where a party is not aware of a fixture for hearing because he was not served, the proceedings conducted will be null and void. See SKENCONSULT (NIG) LTD vs. UKEY (supra), EIMSKIP LTD vs. EXQUISITE INDUSTRIES (NIG) LTD (2003) LPELR (1058) 1 at 39-40, SGBN vs. ADEWUNMI (2003) 10 NWLR (PT 829) 526 and OKOYE vs. CENTRE POINT MERCHANT BANK LTD (2008) 7-12 SC 1.
The quiddity and conspectus of the foregoing is that the failure to serve a hearing notice on the Appellant against the hearing date of 17th February 2016 is a fundamental vice which occasioned a breach of the Appellant’s right to a fair hearing. It went to the root of the case and rendered the proceedings a nullity: FIRST BANK OF NIG PLC vs. T.S.A. INDUSTRIES LTD (2010) LPELR (1283) 1 at 71 – 72 and INEC vs. DPP (2014) LPELR (22809) 1. Put simply, given the circumstances, the decision arrived at by the lower Court on the application which was delivered on 10th March 2016 cannot be allowed to stand since the decision was based on a flawed process that infringed the Appellant’s right

to fair hearing as a result of the failure to issue and serve a hearing notice on the Appellant notifying it of the hearing date for the application. The Latinism is ex nihilo, nihil fit (out of nothing, nothing comes): MANAGEMENT ENTERPRISES LTD vs. OTUSANYA (1987) LPELR (1834) 1 at 74, IN RE: OTUEDON (1995) LPELR (1506) 1 at 16 and NZOM vs. JINADU (1987) LPELR (2143) 1 at 44. The null and void proceedings of 17th February 2016 could not have spawned a valid Ruling. An appellate Court must interfere in order to ensure that justice is done. See GUINNESS (NIG.) PLC vs. UFOT (2008) FWLR (PT 412) 1113. This issue is therefore resolved in favour of the Appellant.

CONCLUSION
Even though it is advocated that a Court should consider and determine all issues properly raised before it, in certain circumstances a consideration of all the issues may be dispensed with. This includes where an order for retrial is considered desirable or where the decision appealed against is declared a nullity, in which case there will be no need to pronounce on the other issues flowing from the trial declared a nullity, which issues could possibly arise at the retrial or fresh

action. See BRAWAL SHIPPING (NIGERIA) LTD vs. F. I. ONWADIKE CO. LTD (2000) LPELR (802) 1 at 13-15, EDEM vs. CANON BALLS LTD (2005) 12 NWLR (PT 938) 27, SHASI vs. SMITH (2009) 18 NWLR (PT 1173) 330 at 356 and IFEKAUDU vs. IBEAGWA (2012) LPELR (14436) 1 at 19-20. The manner of the resolution of the fourth issue distilled by the Appellant on the non-service of hearing notice on the Appellant therefore makes inutile the consideration of the other two issues thrust up for determination in this matter. This is so because as already stated the failure to serve a hearing notice resulted in a denial of fair hearing which is fatal to the decision of the Court. Since the proceedings are null and void, there is the need not prejudice a re-hearing of the matter by the lower Court which will be the likely consequence of expressing any opinion on the merits of the other issues raised for determination. In SALU vs. EGEIBON (1994) 6 NWLR (PT 348) 23 at 44, Wali, JSC stated:
“It has also to be remembered that denial of fair hearing was a breach of one of the rules of natural justice, that is, the requirement that a party must be given a fair hearing. The consequence

of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void. See Adigun v. Attorney-General of Oyo State (1987) 1 NWLR (PT. 53) 678. If a principle of natural justice is violated, it does not matter whether if the proper thing has been done, the decision would have been the same; the proceeding will be null and void. In other words, if the principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision. The result is that the decision of the trial Court and Court below confirming that decision must be set aside. The case must be heard de novo. The decision reached on the 1st issue for determination has rendered it unnecessary to consider the other issues.”

In a summation, this appeal is immensely meritorious. The same succeeds. The decision of the lower Court delivered on 10th March 2016, striking out the Appellant’s action is hereby set aside. The case is remitted to the lower Court for de novo

hearing of the action by another judge, to be assigned by the Chief Judge of the High Court of Lagos State; not being Dawodu, J. The parties are to bear their respective costs of this appeal.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in full agreement with the succinct judgment prepared by my learned brother, UGOCHUKWU ANTHONY OGAKWU, J.C.A.

TIJJANI ABUBAKAR, J.C.A.: I read the comprehensive leading Judgment prepared and rendered in this appeal by my Lord and learned brother OGAKWU J.C.A.
I adopt the Judgment as my own and abide by all consequential orders including the order on costs.

Appearances:

O. Aoko, Esq. For Appellant(s)

Ms. Grace Nwaigwe for the 1st Respondent.

Ms. O. M. Coker for the 2nd Respondent. For Respondent(s)