MR. ABAYOMI OLALEYE v. MR. ALAMU DADA & ANOR (2019)

MR. ABAYOMI OLALEYE v. MR. ALAMU DADA & ANOR

(2019)LCN/13245(CA)

In The Court of Appeal of Nigeria

On Monday, the 13th day of May, 2019

CA/IB/184/2014

RATIO

APPEAL: ISSUES FOR DETERMINATION MUST ARISE FROM THE GROUNDS OF APPEAL

It is trite that issues for determination in an appeal must arise from the Grounds of Appeal. In NSIRIM VS. AMADI (2016) 5 NWLR (PT. 1504) 42 AT 60 PARAGRAPHS B – C, the Supreme Court held thus:
An issue or issues for determination must arise from the Grounds of Appeal relied upon. . .. .
Therefore, when an issue(s) formulated is not based on the Ground of Appeal filed, the legal effect is that they are on that account irrelevant-see UGOCHUKWU VS. OBIEKWE (1989) 1 NWLR (PT. 99) 566; OSINUPEBI VS. SAIBU (1982) 7 SC. 104.
Furthermore, in the case of AMADI VS. A.G. IMO STATE (2017) 11 NWLR (PT. 1575) 92 AT 108 PARAGRAPH D – E it was held thus:
The law and practice in the Appellate Courts are now well settled that issues for determination are formulated from and on the basis of the Grounds of Appeal filed.
An issue formulated must therefore not only relate to the grounds, it must fall within the existing Grounds of Appeal challenging the correctness of the judgment appealed.

APPEAL: ISSUES FOR DETERMINATION MUST BE DISTILLED FROM THE GROUNDS OF APPEAL

It is also trite that issues for determination must be distilled from the Grounds of Appeal which in turn must be predicated on the ratio decidendi of the decision of the Court appealed against. See OMINIYI VS. ALABI (2015) 6 NWLR (PT. 1456) 572; HONIKA SAWMILL (NIG.) LTD. VS. HOFF (1994) 2 NWLR (PT. 326) 252 and BRIGGS VS. C. L. O. R. S. N. (2005) 12 NWLR (pt. 938) 59 AT 90 PARAGRAPHS F – H.PER FOLASADE AYODEJI OJO, J.C.A.

APPEAL: ISSUES: A NUMBER OF GROUNDS COULD BE FORMULATED INTO A SINGLE COMPOSITE ISSUE

It is a well settled principle governing formulation of issues in an appeal that a number of grounds could where appropriate be formulated into a single composite issue. See LABIYI VS. ANRETIOLA (1992) 8 NWLR (PT. 258) 139 AT 159 PARAGRAPHS C – D.PER FOLASADE AYODEJI OJO, J.C.A.

APPEAL: WHETHER AN ISSUE NOT LINKED TO ANY GROUND OF APPEAL IS INVALID

Where an Appellant formulates an issue which cannot be linked to any ground of appeal such issue is invalid and liable to be struck out. See DAIRO VS. UBN (2007) 16 NWLR (PT. 1059) 99 AT 134 PARAGRAPH H.PER FOLASADE AYODEJI OJO, J.C.A.

APPEAL: ATTITUDE OF THE COURT TOWARDS DEFECTIVE BRIEFS
It will not be justice to throw out a brief merely because it is defective. It is not justice to throw out a brief merely because it is faulty. It is not justice to throw out a brief merely because it is inelegantly written. A defective, faulty and inelegant brief will certainly attract the attention and comment of an Appellate Court, but beyond that, nothing should happen, unless the defect, fault or inelegance of the brief affects the merits of the appeal. In OBIORA VS. OSELE (1989) 1 NWLR (PT. 97) 279 it was held that the Court of Appeal cannot dismiss an appeal of an Appellant on the ground that his brief of argument is defective.”PER FOLASADE AYODEJI OJO, J.C.A.

THE COURT SHOULD ALLOW JUSTICE OVER TECHNICALITIES

It is pertinent to state at this point that the era of technicality is long gone and the general attitude of Courts is to focus squarely on the attainment of substantial justice. The Supreme Court in OYEYEMI VS. OWOEYE (2017) 12 NWLR (PT. 1580) 364 AT 394 PARAGRAPHS B ? G had this to say on technical justice:
We are not judicial technicians in the workshop of technical justice. The jurisprudence or logic of our reasoning is, and as humanly possible would be devoid of technicalities. The need to do substantial justice and avoid delving into the error of technicalities is well settled. The principle has been rehashed ago in a long line of authorities for example: NATIONAL REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION (N.R.M.A.F.C.) VS. JOHNSON (2007) 49 WRN PAGES 167- 170 where per Odili JCA (as he then was) opined as follows:
The Courts have deliberately shifted away from narrow technical approach to justice which characterized some earlier decisions to now pursue the Court of substantial justice. See MAKERI SMELTING CO. LTD. VS. ACCESS BANK NIG. PLC. (2002) 7 NWLR (PT. 766) 447 AT 476 ? 477.”PER FOLASADE AYODEJI OJO, J.C.A.

EVERY PARTY MUST NOT ONLY BE HEARD BUT MUST BE AFFORDED THE OPPORTUNITY TO BE HEARD

It is trite that under our system of adjudication every party must not only be heard but must also be afforded the opportunity of being heard. A party entitled to address the Court may waive that right but it must be shown that he has so waived his right.
The Supreme Court in the case of MPAMA VS. FIRST BANK OF NIGERIA PLC (2013) 5 NWLR (PT. 1346) PG. 176 dealt extensively with the issue of denial of a party the opportunity to address the Court. In that case the 2nd Defendant/Respondent was denied the opportunity to address the Court. The Court held at page 198 paragraph H as follows:
When Counsel for the Respondent is denied the opportunity to sum up his case and address the Court, vital issues which depend on the appraisal and evaluation of evidence would have been left undetermined occasioning a miscarriage of justice. See also POLYCARP OJOGBUE & ANOR. VS. AJIE NNUBIA & 4 ORS 1972 1 ALL NLR (PT. 2) 226.”PER FOLASADE AYODEJI OJO, J.C.A.

FAIR HEARING: NATURE

Fair hearing is undoubtedly a constitutional provision as well as a rule of natural justice. A reasonable man in the present circumstance ceased of all the facts that transpired at the lower Court would wonder why the Appellant was denied his right to address the Court. He would think the trial judge was not fair to him. A trial judge must at all times ensure that there is a level playing ground for all parties before it. In this case, the lower Court did not provide a level playing ground and I so hold. The denial of the Appellant fair hearing is a violation of his Constitutional right entrenched in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).PER FOLASADE AYODEJI OJO, J.C.A.

JUSTICES

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria

FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria

Between

MR. ABAYOMI OLALEYE Appellant(s)

AND

1. MR. ALAMU DADA
2. MR. AYOKUNLE DADA Respondent(s)

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice, Ogun State holden at Ilaro in SUIT No; HCY/23/2011 between:
1. ALAMU DADA CLAIMANTS
2.MR AYOKUNLE DADA
AND
MR. ABAYOMI OLALEYE – DEFENDANT
delivered on the 5th February, 2014.

The Respondents as Claimants instituted the proceedings leading to this appeal wherein they sought the following reliefs:
?1. Declaration that the Claimants are entitled to Customary Right of Occupancy in respect of the parcel of land situate, lying and being along Sokoto/Badagry Express Road at Iboro in Yewa North Local Government Area of Ogun State particularly described on survey plan No. OG/0242/2011/045 and thereon edged RED.
2. Declaration that the Defendant is the customary tenant of the Claimant in respect of a parcel of land situate, lying and being at Oke Imina otherwise called Iyana Imina Iboro along Sokoto/Badagry Express Road in Yewa North Local Government Ogun State particularly described in the dispute survey plan No. OG/0242/2011/045 dated 23/5/2011 and thereon edged BLUE.

3. Forfeiture of the customary tenancy granted to the Defendant by the Claimants particularly described on dispute survey plan and thereon edged BLUE on ground of misconduct.
4. Injunction to restrain the Defendant, his servants, agents, privies and anyone connected with him howsoever from entering the land in dispute and/or dealing with the land in dispute on the said area verged blue on dispute survey plan or any part of Claimant?s land.”
See page 25 of the record.

The Appellant as Defendant at the lower Court Counter Claimed as follows:
?1. Declaration that the Olaleye family of Oke Iboro are entitled to the Customary Right of Occupancy of all that piece of land situate, lying and being at Oke Iboro, along Sokoto-Badagry Express Road, Iboro in Egbado North Local Government Area of Ogun State.
The land is bounded as follows:
In the West by Egundeyi and Ajibode family
In the East by Isola Abatan family
In the North by Fateru family
And in the South by Popoola family
The land is more appropriately described and delineated in Survey plan No. OG/928/2012/1 dated the 17th day of October, 2012

drawn by Ajenifuja K.F. registered Surveyor of Map Consult of 12, Sokemu Road, Ijemo, Abeokuta.
2. The sum of N500,000 (Five Hundred Thousand Naira) damage for trespass committed by the Claimants on Olaleye family land.
3. Perpetual Injunction restraining the Claimants, their servants, privies and anybody claiming through them from further acts of trespass on the Defendants on Olaleye family land.”

The lower Court in its judgment granted the claim of the Claimants and dismissed the Counterclaim of the Appellants/Counterclaimant.
The Court at pages 200 ? 201 of the transcript record held as follows:
?The acts of the Defendant in this case was to deny the title of his overlord, it is trite that such act will attract for forfeiture of his customary tenant.
I therefore find for the Claimants in respect of their claim as follows:
1. I hereby declare that the Claimants are entitled to customary right of occupancy in respect of the parcel of land situate, lying and being at Sokoto/Badagry Express Road at Iboro in Yewa North Local Government Area of Ogun State particularly described on Survey Plan No: OG/0242/2011/045

and thereby edge Red.
2. I declare that the Defendant is the Customary Tenant of the Claimant in respect of the parcel of land, situate, lying and being at Oke Imina otherwise called Iyana Imina Iboro along Sokoto/Badagry Express Road in Yewa North Local Government Ogun State particularly described in the dispute survey plan No.OG/0242/2011/045 dated 23/5/2011 and thereon edged BLUE.
3. I also hold that the Defendant in this case has forfeited the Customary Tenancy granted to him by the Claimants particularly described in the survey plan and thereon edged BLUE on ground of misconduct.
4. An order of injunction is hereby made to restrain the Defendant, his servants, agents, privies and anyone connected with him howsoever from entering the land in dispute and/or dealing within the land in dispute on the said area verged BLUE on the dispute Survey Plan No: OG/0242/2011/045 dated 23/5/2011 or any part of Claimant?s land.
The Defendant has failed to prove his counterclaim, it is hereby dismissed. Cost of N75,000.00 (Seventy-Five Thousand Naira) is awarded against the Defendant in favour of the Claimants.?

Dissatisfied with the decision of the lower Court, the Appellant filed a Notice of Appeal on the 25th of February, 2014, wherein he seeks an order of this Court setting aside the decision of the lower Court and allowing the appeal. See pages 202 ? 207 of the Record.

Briefly, the case of the Respondents as Claimants before the lower Court is that they are the owners of the land. They traced their root of title to the first settler. They claim the Appellant?s father was a customary tenant on the land and paid customary dues (Isakole) on it until he died. They claim the Appellant stopped the payment of the tributes after the death of their father, remained on the land and became very unruly. The Respondent traced his root of title to Eyini who was the first settler on the disputed land.

The Appellant on the other hand claim the disputed land was founded by Ayidingbi their ancestors. The Appellant deny payment of tributes to the Respondents by his fore fathers.

?The Appellant?s Counsel filed an Appellant?s Brief of Argument on the 13th of November, 2015 which was deemed as duly filed and served on the 17th of April, 2018. The Respondents?

Counsel did not file a Respondents? Brief of Argument but a Notice of Preliminary Objection on the 21st of September, 2018 on behalf of the Respondent. The Appellant?s Counsel filed the Appellant?s Reply to the Preliminary Objection on the 8th of October, 2018.

Learned Counsel to the Appellant formulated the following issues for determination from the six Grounds of Appeal:
1. Whether the trial Court was right when it preferred the traditional evidence of the Claimant, Respondent to that of the Defendant/Appellant having regard to the weight of evidence adduced by the parties.
2. Whether the learned trial Court appreciates the legal principle and the heavy evidential burden placed on the Plaintiffs/Respondents when their claim was based on the fact that the Defendant/Appellant is a customary tenant and other consequential reliefs emanating therefrom.
3. Whether the trial Court was right in granting injunction against the Defendant when the Claimants have not established exclusive possession.
4. Whether the trial Judge has not failed in his primary duty when it failed to evaluate properly the evidence of the parties before

finding for the Claimants.
5. Whether the act of foreclosing the final address of the Defendant Counsel in this case does not amount to lack of hearing thereby occasioning miscarriage of justice.

Learned Counsel to the Respondents in his Notice of Preliminary Objection formulated two issues to wit:
1. Whether the Appellant relates any of the issues for determination to any of the grounds of appeal as filed.
2. Whether the entire appeal is not thereby incompetent by virtue of the Appellant?s failure to indicate the ground of appeal from which an issue is formulated.

For his part, Learned Counsel to the Appellant in the Appellant?s Reply to Preliminary Objection formulated the following issues:
(i) Whether the Appellant ties any of the issues to the grounds of appeal.
(ii) Whether the Respondent is misled by the Appellant issues for determination as contained in the Appellant Brief.
(iii) Whether Appellant Brief and issues as filed has occasioned a miscarriage of Justice.

The usual practice is that where a Respondent has an objection to the hearing of an appeal, he files a Notice of Preliminary Objection and

where such objection is capable of disposing of the appeal, it is considered first. If it succeeds, the appeal abates. See LAFIA LOCAL GOVERNMENT VS. THE EXECUTIVE GOVERNOR, NASSARAWA STATE (2012) 17 NWLR (PT. 1328) 94 AT 124 PARAGRAPHS D ? F; DAUDU VS. FRN (2018) LPELR ? 43637 AT 4 ? 5 and ALLANAH & ORS. VS. KPOLOKWU & ORS. (2016) LPELR ? 40724 AT 10 ? 11 PARAGRAPHS D ? A.
The prayer of the Respondent is that the Notice of Preliminary Objection be upheld and the Appellant?s appeal struck out. I shall therefore proceed to treat the Preliminary Objection first.
?
Learned Counsel to the Respondents in his address in support of the Notice of Preliminary Objection argued that the Appellant did not relate the issues formulated in the Appellant?s Brief to the Grounds of Appeal. His contention is that the issues were discussed without reference to the ground to which they are distilled from. He submitted it is the law that issues raised for determination in an appeal must arise from and relate to the Grounds of Appeal to be valid and competent for consideration by the Appellate Court. He submitted further

that it is the Grounds of Appeal that represent the grouse of the Appellant in the first instance and where such connections are not laid bare, they become irrelevant and worthless. He relied on the cases of FAWEHINMI VS. GLOBE MOTORS HOLDING NIGERIA LTD (2018) 12 NWLR (PT. 1633) 197 AT 207 ? 208 PARAGRAPHS H ? B; MODUPE VS. THE STATE (1988) 4 NWLR (PT. 87) 130 and AMADI VS. NNPC (2000) 10 NWLR (PT. 674) PG. 76. Learned Counsel further submitted that the consequence of the failure to indicate from which of the Grounds the issues were formulated is the striking out of such issues. Where all the issues so formulated are not linked with any of the Grounds of Appeal, the entire appeal should be struck out for being worthless and incompetent. He craved in aid of his submission the cases of AKINLAGUN VS. OSHOBOJA (2006) 12 NWLR (PT. 993) PG. 60; EZEJA VS. THE STATE (2005) 6 NWLR (PT. 921) 235 and NIG. PORTS PLC VS. B. P. P. T. E LTD (2012) 18 NWLR (PT. 1333) 454.

?Learned Appellant?s Counsel in his reply to the Preliminary Objection conceded the Appellant did not specifically mention in his brief the Grounds of Appeal to which the issues

formulated relate but said a close look at the issues reveal they relate to the Grounds of Appeal. He argued further that although the attitude of not marrying the issues proposed for determination with the Grounds of Appeal is inelegant and deplorable, such will not be a basis for departing from the cardinal duty of the Court to do justice among parties. He relied on the case of EMMANUEL UGBOJI VS. THE STATE (2017) 73 NSQR 1 AT 34 ? 36.

He contended further that the Appellant?s Brief complied substantially with Order 19 Rule 3(1) of the Court of Appeal Rules and that non-compliance with the form and contents as stipulated under Rule 3 should be treated as a defect. He submitted that a defective, faulty and inelegant brief may attract the attention and comment of an Appellate Court, it should however not be a basis for the dismissal of the appeal unless the defect, fault or inelegance affect the merit of the appeal. He craved in aid of his submission the cases of WEIDE & CO. (NIG.) LTD VS. WEIDE & CO. HAMBURG (1992) 6 NWLR (PT. 249) 627 and KLM AIRLINES VS. ALOMA (2017) 71 NSCQR 312 AT 340.

He finally urged us not to interpret the Rules of Court in a way that defeats justice as Rules of Court are meant to regulate and provide guidelines for the conduct of proceedings before a Court.

correctness of the judgment appealed.?

The Grounds of Appeal filed by the Appellant without their particulars as contained in pages 202 207 of the Record are as follows:
GROUND ONE
The Judgment of the Lower Court is against the weight of evidence.
GROUND TWO
The learned trial Judge erred in law when he held ?I hereby declare that the claimants are entitled to customary right of occupancy in respect of the parcel of land situate, lying and being along Sokoto/Badagry Express Road at Iboro in Yewa North Local Government Area of Ogun State particularly described on survey plan No. OG/0242/2011/045 and thereby edged Red.”
GROUND THREE
The learned trial Judge erred in law when the Court held that the

Defendant is a customary tenant on the land in dispute.
GROUND FOUR
The learned trial Judge erred in law in granting forfeiture to the Claimants when claimants have woefully failed to proof customary tenancy.
GROUND FIVE
The learned trial Judge erred in law in granting injunction against the Defendants/Counter Claimants.
GROUND SIX
The learned trial Judge erred in law and caused a breach of fair hearing when it foreclosed the final written address of the claimant?s counsel on the 17th day of October, 2013 and also foreclosed the Defendants reply to the claimant?s final written address.

I have in the earlier part of this judgment set out the five issues formulated by the Appellant?s Counsel in the Appellant?s Brief of Argument. For ease of reference I shall reproduce them again. They are:
1. Whether the trial Court was right when it preferred the traditional evidence of the Claimant, Respondent to that of the Defendant/Appellant having regard to the weight of evidence adduced by the parties.
2. Whether the learned trial Court appreciates the legal principle and the heavy evidential burden placed

on the Plaintiffs/Respondents when their claim was based on the fact that the Defendant/Applicant is a customary tenant and other consequential reliefs emanating therefrom.
3. Whether the trial Court was right in granting injunction against the Defendant when the Claimants have not established exclusive possession.
4. Whether the trial Judge has not failed to evaluate properly the evidence of the parties before finding for the Claimants.
5. Whether the act of foreclosing the final address of the Defendant Counsel in this case amount to lack of fair hearing there occasioning miscarriage of justice.

I have carefully gone through the issues formulated by the Appellant as well as the Grounds of Appeal. My view is that all the five issues formulated emanate from and are linkable to the grounds of appeal and I so hold.

of his appeal is that such issues must stem from the grounds of appeal. Where an Appellant formulates an issue which cannot be linked to any ground of appeal such issue is invalid and liable to be struck out. See DAIRO VS. UBN (2007) 16 NWLR (PT. 1059) 99 AT 134 PARAGRAPH H.

The gravamen of the preliminary objection is that the Appellant did not in his Brief of Argument marry the issues formulated with the grounds of appeal. It is not that the issues have no root in the grounds of appeal. I have found the issues formulated have a link with the grounds of appeal and that they emanate therefrom. This being so, would it be in the interest of justice to strike out the Appellant?s brief just because the Appellant did not marry the issues with the grounds of appeal in the brief? I do not think it would be in the interest of justice to do so. I would not do so.
To my mind, the failure of the Appellant to specifically marry the issues with the Grounds of Appeal in his Appellant?s Brief though inelegant is not sufficient to render his Brief incompetent. That will not be justice. That defect would not in any way affect the merit of this appeal.

In the case of WEIDE & CO. NIG. VS. WEIDE & CO. HAMBURG (1992) 6 NWLR (PT. 249) PG. 627 Tobi JCA at page 638 PARAGRAPHS A ? C held as follows:
?It is only when non-compliance with Order 6 of the Court of Appeal (Amendment) Rules 1984 affects the merits of the appeal that an Appellate Court should throw out the offending brief otherwise no.
It will not be justice to throw out a brief merely because it is defective. It is not justice to throw out a brief merely because it is faulty. It is not justice to throw out a brief merely because it is inelegantly written. A defective, faulty and inelegant brief will certainly attract the attention and comment of an Appellate Court, but beyond that, nothing should happen, unless the defect, fault or inelegance of the brief affects the merits of the appeal. In OBIORA VS. OSELE (1989) 1 NWLR (PT. 97) 279 it was held that the Court of Appeal cannot dismiss an appeal of an Appellant on the ground that his brief of argument is defective.”
I completely agree with the above reasoning of his lordship. The Respondent has drawn our attention to the failure of the Appellant to marry the issues

formulated with the grounds of appeal in his brief of argument. We have seen it and we agree that was not done. In fact, the Appellant?s Counsel concede to this obvious fact in his Reply to Notice of Preliminary Objection. This failure is a defect and we condemn it. We say ?Appellant?s Counsel you have not done well. You should pay more attention while writing your briefs and be more diligent. You would assist the Court by so doing.”
It is pertinent to state at this point that the era of technicality is long gone and the general attitude of Courts is to focus squarely on the attainment of substantial justice. The Supreme Court in OYEYEMI VS. OWOEYE (2017) 12 NWLR (PT. 1580) 364 AT 394 PARAGRAPHS B ? G had this to say on technical justice:
?We are not judicial technicians in the workshop of technical justice. The jurisprudence or logic of our reasoning is, and as humanly possible would be devoid of technicalities. The need to do substantial justice and avoid delving into the error of technicalities is well settled. The principle has been rehashed ago in a long line of authorities for example: NATIONAL REVENUE

MOBILIZATION ALLOCATION AND FISCAL COMMISSION (N.R.M.A.F.C.) VS. JOHNSON (2007) 49 WRN PAGES 167- 170 where per Odili JCA (as he then was) opined as follows:
The Courts have deliberately shifted away from narrow technical approach to justice which characterized some earlier decisions to now pursue the Court of substantial justice. See MAKERI SMELTING CO. LTD. VS. ACCESS BANK NIG. PLC. (2002) 7 NWLR (PT. 766) 447 AT 476 ? 477.”
The attitude of the Court has since changed against deciding cases on mere technicalities. The attitude of the Courts now is that cases should always be decided, wherever possible on merit?.?
My conclusion on the Respondent?s Preliminary Objection is that same is devoid of substance and it is accordingly dismissed.

Now to the merits of the Appeal.
The Respondent?s Counsel did not respond to any of the issues raised by Appellant?s Counsel but relied solely on the preliminary objection in urging us to dismiss the appeal.
?
Upon a perusal of the issues formulated by the Appellant?s Counsel, I find it expedient to consider issue No. V which bothers

on fair hearing first. A resolution of this issue may be sufficient to dispose of this appeal.

The Notice of Appeal contains six grounds. Among the Grounds of Appeal is ground six which reads as follows:
GROUND SIX
The learned trial Judge erred in law and cause a breach of fair hearing when it foreclosed the final written address of the claimant?s counsel on the 17th days of October, 2013 and also foreclosed the Defendant?s reply to the claimant?s final written address.
PARTICULARS
1. On the 9th of July, 2013, the Court gave 21 days on either side to file final written addresses.
2. This period of time fell within the judicial annual vacation and the annual bar conference in Calabar.
3. None of the parties filed within time.
4. The Defendants however filed the final written address on the morning of the 17th day of October 2013 with a motion for extension of time and payment of N12, 000 penalty.
5. That the attention of the Court was drawn to the fact that on the 17th day of October, 2013 when the matter was being treated.
6. The Court on that day ordered the claimant counsel to file its

written address which was dated the 4th of November, 2013.
7. The Claimants final written address was served on the Defendants counsel on the 4th day of November 2013.
8. The Defendants Counsel filed a reply to claimant’s final written address on the 6th day of November 2013.
9. The learned trial judge also foreclosed the reply and discountenanced same.
10. That the judgment of the lower Court is based on the final written address of the Claimant without any attempt to evaluate the evidence before the Court.
11. The action of the learned trial judge show bias against the Defendants.
12. The action of the lower Court is a breach of the right to fair hearing as guaranteed by Section 36(1)(a) and (b) of the 1999 Constitution as amended.”

Learned Counsel to the Appellant in paragraph 8.03 of the Appellant?s Brief of Argument submitted the lower Court did not consider the application for extension of time to file written address and the address of the Defendant/Appellant?s Counsel even though it was filed before the claimant?s final written address. He submitted further at paragraph 8.04 that the right of the

Defendant/Applicant to fair hearing has been breached. He relied on Section 36(1)(a) and (b) of the 1999 Constitution and the cases of AKILU VS. FAWEHINMI (1983) 3 NWLR (PT. 98) PG. 419 AND GODWIN EKIYOR VS. CHIEF FUNKAMA BOMOR (1997) 7 SCNJ 479.

I find it pertinent to narrate how events played out at the lower Court with respect to this issue as borne out by the record. On the 9th of July, 2013, the lower Court adjourned the case to 17th October, 2013 for adoption of written addresses after the defence closed his case. See page 183 of the record. On the said 17th October 2013 when the case came up for adoption of final written addresses, the Defendant?s Counsel was not present and had not filed any written address at the time. The lower Court foreclosed the Defendant from filing a written address and gave the claimant 14 days to file his written address. The Court thereafter adjourned the case to 31st October 2013. See pages 183 ? 184 of the record. On the said 31st October 2013, the claimant and defendant were both represented by counsel. The Defendant?s Counsel moved his motion dated 28th October 2013 wherein he prayed the lower Court

to set aside or rescind its decision to foreclose the defendant?s right to file a final written address. See page 123 of the record. The affidavit in support of the motion reads thus:
?1. That I am the counsel to the Defendant/Counter claimant in this suit.
2. That by virtue of my position in this case I am conversant with facts and development in this case.
3. That on the 9th day of June, 2013 pleadings were closed when the Defendant closed his case and the Court ordered that the final address should be turned in within 21 days.
4. That I could not file the final written address until the time elapsed due to ill health.
5.That during the vacation I travelled to calabar for the Nigerian Bar Association Conference and when I came back I took ill again and I could not complete the address until early in October.
6. That when the matter came up on 17th day of October 2013, I quickly rushed to the registry as early as 8.30 am on that day to file his written address and it was in the course of paying the penalty that I spent some time in the registry.
7. That as soon as I filed the address and the motion for extension of

time I came back to the court room.
8. That at that juncture the learned trial judge had started ruling on why I am not in Court and why the reason for my absence was not explained.
9. That after the ruling I rose to explain to the Court that my absence in Court when the matter was called is not due to any disrespect to the Court and that the written address and the motion for extension of time to file same and the requisite penalty has been paid accordingly.
10. That my client Mr. Abayomi Olaleye was in Court when this exercise was going on in Court.
11. That the receipt of filing of the final written address that of the motion for extension of time filed in the morning of the 17th day of October and the receipt for the penalty is herein attached as Exhibit A.
12. That all these processes have been served on the claimant.
13. That nobody will be prejudiced if this application is granted.
14. That I swear to this affidavit in good faith and in accordance with the Oaths Act.?

The Defendants Counsel moved his motion. The Claimants Counsel did not oppose the application. The lower Court in the face of

the uncontroverted facts in the affidavit in support of the Motion refused to grant the application and further adjourned the case to 12th November 2013 for the adoption of final written addresses. It is significant to note that as at the 31st of October 2013 when the defendant moved the application to set aside the order foreclosing his right to file a final written address the claimants had not filed their written address. On the 12th of November 2013, the claimants adopted their final written address which they filed on 4th November 2013. The Court again refused the Defendants application to file a reply claimants address and counsels application to make oral arguments. The case was thereafter adjourned for judgment. Judgment was delivered on 5th February 2014.
The question now is whether against the above background it can be said that the Appellant was granted fair hearing at the lower Court. What is fair hearing
The Supreme Court in EZE VS. FRN (2017) 15 NWLR (PT. 1589) 433 AT 465 PARAGRAPHS B ? D held thus:
“The principle of fair hearing as enshrined under the Constitution of the Federal Republic of

Nigeria, 1999 as amended (CFRN, 1999) is for both the appellant and respondent. Section 36 (1) of the CFRN, 1999 provides thus:
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such a manner as to secure its independence and impartiality.”
The Supreme Court also in DUKE V. GOVT, CROSS RIVER STATE (2013) 8 NWLR (PT. 1356) 347 AT 366 PARAS B-C also held thus:
“….By the term “fair hearing” within the con of Section 36(1) of the 1999 Constitution, is that a trial ought to be considered in accordance with all the legal norms designed to ensure that justice is done at all cost to all parties. The principle of fair hearing is that both sides must be given to an opportunity to present their respective cases. It implies that side has the right to know what case is being made against it and be given ample opportunity to react or respond thereto.”
Furthermore in EZE VS. UNIJOS (2017) 17 NWLR (PT. 1593) 1 AT 15 PARAGRAPH

H, the Supreme Court held thus:
“An allegation that a party was denied fair hearing can be raised at any stage of the proceedings even at the Supreme Court for the first time. If found to be true it could amount to the trial being declared a nullity for miscarriage of justice.”
The Court held further at page 17 Paragraphs D ? E as follows:
“There would be miscarriage of justice where there is a departure from well laid down procedure before arriving at a decision, thereby resulting in a failure of justice. Where there is a miscarriage of justice the decision would be inconsistent with the substantial right of the party. There is miscarriage of justice when the Court fails to do justice, in such a case injustice reigns supreme. In short, it is justice misapplied. See S. AKPENE DJUKPAN VS. R. OROVUYOVBE & ANOR (1967) 1 ALL NLR 134; (1967) SCNLR 245; OKONKWO & ANOR VS. UDOH (1997) 9 NWLR (PT. 519) 16; OJO VS. O. ANIBIRE & ORS.(2004) 10 NWLR (PT. 882) 571.”
In the instant case, the persistent denial of the Defendant?s Counsel the opportunity to sum up the Defendant?s case through the medium of a written

address is quite worrisome. The question to be asked is whether the Defendant was given the opportunity to address the Court but failed to utilize same. I do not think so. On two different dates before the eventual adoption of the claimant?s final address, the defendant applied to be allowed to address the Court but was denied. On those two dates, the claimants had not filed their written address. The defendant?s counsel on the 17th of October 2013 and the 31st of October 2013 brought it to the attention of the Court that the defendant had filed his final written address. In the affidavit in support of its motion the defendant brought it to the attention of the Court that the written address had been filed. He exhibited the written address as well as the receipt evidencing the penalty paid for late filing of the application. The claimant?s counsel who had not filed the claimant?s written address did not oppose the application. The trial Court still went ahead to refuse the application and by so doing denied the defendant now Appellant the opportunity to sum up his case by way of written address or oral argument. The Court further denied

the Respondent the opportunity to file a response to the claimants address. The lower Court assumed a state of urgency that was nonexistent. The Appellant took steps to address the Court but was denied.
The importance of addresses is recognized by the Constitution of the Federal Republic of Nigeria. Section 294(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended provides as follows:
294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final written addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
It is trite that under our system of adjudication every party must not only be heard but must also be afforded the opportunity of being heard. A party entitled to address the Court may waive that right but it must be shown that he has so waived his right.
The Supreme Court in the case of MPAMA VS. FIRST BANK OF NIGERIA PLC (2013) 5 NWLR (PT. 1346) PG. 176 dealt extensively with the issue of denial

of a party the opportunity to address the Court. In that case the 2nd Defendant/Respondent was denied the opportunity to address the Court. The Court held at page 198 paragraph H as follows:
When Counsel for the Respondent is denied the opportunity to sum up his case and address the Court, vital issues which depend on the appraisal and evaluation of evidence would have been left undetermined occasioning a miscarriage of justice. See also POLYCARP OJOGBUE & ANOR. VS. AJIE NNUBIA & 4 ORS 1972 1 ALL NLR (PT. 2) 226.”
The Court went on further at page 199 Paragraphs D ? H to hold as follows:
?… The need for counsel to sum up his case and address the Court cannot be overemphasized. For one, it is of immense value to the judge in his appreciation of facts and summing up of evidence before him. This is made explicitly clear in the case of MOGAJI V ODOFIN (1978) 4 SC 91 AT 94 where the Supreme Court held as follows:
“In short, before a Judge before whom evidence is adduced by the parties in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he

rejects, he should first of all put the totality of the testimony adduced by both parties on an imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weigh them together. He will then see which is heavier not by the number of witnesses called by each party, but by the quality of the probative value of the testimony of those witnesses.”
The Court can only properly evaluate evidence adduced when counsel in a matter have properly summed up.?
The Court held at page 204 paragraphs D ? F thus:
“Counsel for a party may not want to sum up the evidence and comment thereon but the record must show that he was offered the opportunity to do so. The procedure adopted by the trial Court was a violation of the rules of natural justice. See DEDUWA VS. OKORODUDU (1976) 1 NMLR 237. It constitutes a violation of the respondent’s right to a fair hearing entrenched in Section 36 of the 1999 Constitution as amended and contrary to the argument of learned counsel for the appellant, the respondent who established a denial of his right to fair hearing under the Constitution

is not required to prove that he suffered a miscarriage of justice. A miscarriage of justice is inherent in a denial of a right to a fair hearing.”
It is evident from the record that the Appellant wished to sum up the evidence by way of address and took steps to do so but was unjustifiably prevented from doing so by the lower Court. What I find difficult to understand is why the trial judge persistently denied the Defendant?s Counsel the opportunity to address the Court even when the claimant?s counsel had not filed his own address and had no objection to the application of the defendant to so do. It is very clear and I have no hesitation in coming to the conclusion that the Appellant who was the defendant at the lower Court was denied fair hearing.
Fair hearing is undoubtedly a constitutional provision as well as a rule of natural justice. A reasonable man in the present circumstance ceased of all the facts that transpired at the lower Court would wonder why the Appellant was denied his right to address the Court. He would think the trial judge was not fair to him. A trial judge must at all times ensure that there is a level

playing ground for all parties before it. In this case, the lower Court did not provide a level playing ground and I so hold. The denial of the Appellant fair hearing is a violation of his Constitutional right entrenched in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
I would conclude by quoting the Supreme Court in OGUNDOYIN VS. ADEYEMI (2001) 13 NWLR (PT. 130) PAGE 403 AT 422 when it held:
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 before deciding had in fact been given the opportunity of a hearing. Once an Appellate Court reaches the conclusion that a party entitled to be heard before a decision was reached was not given the opportunity of a hearing the order or judgment thus entered is bound to be set aside.?
The Appellant was denied fair hearing at the lower Court. This issue is resolved in favour of the Appellant. Having found that the Appellant was denied fair hearing, the judgment of the lower Court can no longer stand. I find

merit in this appeal and it is hereby allowed. Judgment of the lower Court in SUIT NO.HCY/23/2011 BETWEEN: 1. MR. ALAMU DADA 2. MR. AYOKUNLE DADA AND MR. ABAYOMI ALANI OLALEYE delivered on the 5th February 2014 is hereby set aside. This case is ordered to be remitted back to the Chief Judge of Ogun State for trial de novo before another judge other than A. O. Asenuga, J. Parties are to bear their own costs.

NONYEREM OKORONKWO, J.C.A.: In this appeal, one of the main issues poignantly raised by way of preliminary objection was that the appellant did not relate the issues formulated in the brief to the grounds of appeal. In effect, respondent argued that appellant did not link the issues to the grounds of appeal as some lawyers do by writing at the end of each issue formulated words like “related to ground 2” or “related to grounds 3 and 4″. There is no legal requirement for such formula. Such statement may be made and yet the issue raised may have no bearing to the ground of appeal.
In this appeal, my learned brother Folasade Ayoodeji Ojo JCA, in the lead judgment had clearly highlighted the facts of the case and the judgment

of the lower Court and demonstrated how the grounds of appeal relate to the main essence of that judgment and showed that the issues directly flowed from the grounds of appeal in such a manner as to make for clear comprehension. In other words, the appellant by his grounds of appeal and the issues flowing therefrom showed that the appeal is against the judgment on the main points on issues raised at trial. In T.M. Hambe & Anor v. Agber Hueze (2001) 3 SCM 49, the Supreme Court shed light on the point thus:
”The prime purpose of the rules of appellate procedure, both in the Supreme Court and in the Court of Appeal is, that the appellant shall file a notice of appeal which shall set forth concisely the grounds which he intends to rely upon on the appeal and that such grounds should not be vague or general in terms and must disclose a reasonable ground of appeal as to give sufficient notice and information to the other side of the precise nature of the complaint of the appellant and, consequently, of the issues that are likely to arise on the appeal. Any ground of appeal that satisfies that purpose should not be struck out, notwithstanding that it did

not conform to a particular form.”
I agree with my Lord in the lead judgment that the issue raised in the preliminary objection is irrelevant.

Another point of concern is that of the trial Judge refusing the appellant’s counsel his right of address even when counsel begged for it by motion. My Lord Ojo, JCA has done enormous work on it and I need not belabor the legal issues there further but the manner the trial Judge went about it is indicative of serious bias.
Finally, I adopt the orders made in the lead judgment.

ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the privilege of reading in draft the Judgment of my learned brother Folasade Ayodeji Ojo JCA. I entirely agree with her reasoning and conclusion with particular regard to the fact that the Appellant was denied fair hearing at the lower Court.

There can be no doubt that fair hearing is in most cases synonymous with natural justice, an issue which clearly is at the threshold of our legal system. Once there has been a denial of fair hearing as guaranteed under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended, the whole

proceedings automatically become vitiated with a basic and fundamental irregularity which renders them null and void. See Mohammed Olada Ojengbede v. M.O. Esan Lojaoke & 1 Or.(2001)8 NSCQR 461.
The proceedings of the lower Court was conducted in breach of the Appellants right to fair hearing and it is therefore a nullity. I also find merit in the appeal and it is hereby allowed. I abide by the consequential orders in the lead Judgment.

Appearances:

Olusegun Emehin Esq.For Appellant(s)

Kehinde Asigidi Esq.For Respondent(s)

Appearances

Olusegun Emehin Esq.For Appellant

AND

Kehinde Asigidi Esq.For Respondent