MR. ANTHONY OKE & ANOR v. UNITED BANK FOR AFRICA PLC & ANOR (2015)

MR. ANTHONY OKE & ANOR v. UNITED BANK FOR AFRICA PLC & ANOR

(2015)LCN/7926(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 30th day of June, 2015

CA/EK/45/2014

RATIO

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO FAIR HEARING; THE IMPLICATION OF ANY JUDGEMENT WHICH HAS BREACHED FUNDAMENTAL RIGHT TO FAIR HEARING

A hearing in a matter in court cannot be said to be fair if any of the parties appearing before the court is refused a hearing or denied the opportunity to be heard or present his case or call evidence. See GOVERNOR IMO STATE Vs NWAUWA (1997) 2 NWLR (PT. 490) 675, wherein the Supreme Court per IGUH JSC at page 709 held that:
“The term “fair hearing” has been judicially interpreted to involve situations where whether having regard to all the circumstances of a case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the tribunal was fair to all the parties to the proceedings. It is said to mean a trial conducted according to all the legal rules formulated to ensure that justice is done to all the parties to a cause or matter.”
Therefore any Judgment which is given without compliance and which has breached fundamental right to fair hearing is a nullity and capable of being set aside by the court that made the orders or by the appellate court. See A.G. RIVER STATE Vs Ude (2007) FWLR (PT. 347) 598 at 614 and BAMGBOYE Vs UNIVERSITY OF ILORIN (1999) 10 NWLR (PT.622) 290. per. ADZIRA GANA MSHELIA, J.C.A.

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO FAIR HEARING; WHETHER THE PRINCIPLE OF FAIR HEARING INCORPORATES THE AUDI ALTERAM PARTEM RULE

The principle of fair hearing incorporates the audi alteram partem rule. It means “hear the other side.” The components of the audi alteram partem rule were fully set out in the case of ESHENAKE Vs GBINIJE (2006) 1 NWLR (PT. 961) 223 at 249. In MAGNA MARITIME SERVICES LIMITED & ANOR Vs S.A. OTEJU & ANOR (2005) 14 NWLR (PT. 945) 517 at 543 Paras C-D, EDOZIE JSC had this to say:-
“The expression “fair hearing” means a trial conducted according to all the legal rules formulated to ensure that Justice is done to the parties in a case, and one of such rules is the rule audi alteram partem. See ARIORI Vs EZEMO (1983) 1 SC 13 at 24 (1983) 1 SCNLR 1 at 254, RASAKI A. SAHI Vs MADAM TOWERO EGEIBON (1994) 6 NWLR (PT.348) 23. Fair hearing lies in the procedure followed in the determination of the case and not in the correctness of the decision. See State Vs ONAGORUWA (1992) NWLR(PT.221)33at56.”
In general, the rule is that a verdict should not be entered against a man on a matter relating to his civil rights or obligations without being given an opportunity of being heard. A denial of right to be heard or opportunity to be heard is a breach of constitutional right and rules of natural justice and should not be allowed. per. ADZIRA GANA MSHELIA, J.C.A.

CONSTITUTIONAL LAW : FUNDAMENTAL RIGHT TO FAIR HEARING; THE TRUE TEST OF FAIR HEARING IN A PROCEEDING

The true test of fair hearing is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case. per. ADZIRA GANA MSHELIA, J.C.A.

EVIDENCE : CROSS-EXAMINATION; THE MAIN AIM OF CROSS-EXAMINATION

The aim of cross-examination is to enable the cross-examining party to demolish or weaken the case of the party being cross-examined, to also allow the cross-examining party the opportunity of stating or representing its case through the witness of its opponents. See IWUOHA Vs OKOROIKE (Supra) 250 para D. The entire process revolves around this art of cross-examination. The Evidence Act, 2011 actually underscores the purposes of cross-examination in S.223 which provides inter alia that:-
“When a witness is cross-examined, he may, in addition to the questions referred to in preceding sections of this part, be asked questions which tend to:
(a) Test his accuracy, veracity or credibility; or
(b) Discover who he is and what is his position in life; or
(c) Shake his credit, by injuring his character……” per. ADZIRA GANA MSHELIA, J.C.A.

JUSTICES

ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria

AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

Between

MR. ANTHONY OKE & ANOR Appellant(s)

AND

UNITED BANK FOR AFRICA (UBA) PLC & ANOR Respondent(s)

ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): The appellant commenced an action against the Respondents by filing Writ of Summons and Statement of Claim dated 8th of September, 2010 at the Ekiti State High Court claiming the following reliefs:-
(a) The sum of One Hundred and Fifty Thousand Naira (N150,000) being the value of items destroyed on the first plaintiff’s premises on 4th March, 2010 by the Second defendant and five unknown persons, while the 2nd defendant acted as an agent of the First Bank.
(b) The sum of Five Million Naira (N5,000,000.00) being damages for trauma and assault suffered by the second plaintiff in the hands of the second defendant acted as an agent of the First defendant.
(c) The sum of Four Million Naira (N4,000,000.00) being damages for physiological trauma suffered by the first plaintiff in the hands of the second defendant, through series of arrests and detention in the Police custody instigated by the second defendant.
(d) The sum of Six Million Naira (N6,000,000.00) for breach of contract by the first defendant in connection with a “No Wahala loan” granted the 1st plaint in June, 2009 and which was unilaterally by the first defendant in August, 2009. The tenor/duration was supposed to be four (4) years, but the bank claimed it was wrongly booked for the first plaintiff on his account domiciled at Oye Ekiti Branch, and refused to issue the statements of account requested for by the first plaintiff.
(e) An order of this honourable court asking the first and 2nd defendants to release the first plaintiff’s statement of accounts for all his accounts kept with first defendant.
(f) An order of this honourable court restraining the first defendant and 2nd defendant from further instigating security operatives to arrest and detain the first plaintiff and harassing the second plaintiff.

The respondents entered appearance and filed joint statement of defence and counter-claim dated 7th March, 2011 and filed same day. The 1st defendant counter-claim as follows:-
(i) The 1st Defendant counter-claim against the 1st plaintiff for the sum of Six Hundred and Forty Seven Thousand Nine Hundred and Sixty-Six Million Naira, Sixty-Three Kobo (N647,966.63) being balance as at 30th September, 2010 of the temporary facility otherwise called “no wahala loan” granted to the 1st plaintiff on 10th August, 2009 at the 1st Defendants Oye Branch under Account No 05700160000050) belonging to the 1st Plaintiff trading under the business name and style “Andyjo’s Nigeria Enterprise” and which sum the 1st Plaintiff has failed and neglected to pay despite repeated demands.
(ii) INTEREST or the sum of Six Hundred and Forty Seven Thousand Nine Hundred and Sixty-Six Million Naira, Sixty-Three Kobo (N647,966.63) at the rate of 10% per annum until the whole debt is finally liquidated.
(iii) The 1st Defendant counter-claim against the plaintiffs jointly and severally for the sum of Three Million One Hundred and Eighty-Six Thousand Four Hundred and Forty Five Naira, Twenty Three Kobo (N3,186,445.23) being balance as at 30th September, 2010 of the facility granted to 2nd plaintiff on 12th May, 2009 and guaranteed by the 1st plaintiff at the 2nd plaintiff’s request at 1st Defendant’s Oye Branch under Account No. 05700250005172 belonging to the 2nd plaintiff and which sum the plaintiffs have failed and neglected to pay despite repeated demands.
(iv) INTEREST on the said sum of Three Million One Hundred and Eighty-Six Thousand Four Hundred and Forty Five Naira, Twenty Three Kobo (N3,186,445.23) at the rate of 22% per annum from 1st October, 2010 until the date of Judgment and thereafter at the rate of 10% per annum until the whole debt is finally liquidated.
(v) The 1st Defendant counter-claim against the 1st plaintiff for the sum of Nine Hundred and Six Thousand Five Hundred and Twenty-Two Naira, Fifty-One Kobo (N906,522.51) being balance as at 30th September, 2010 of the temporary facility otherwise called “no wahala loan” granted to the 1st plaintiff on 19th January, 2010 at the 1st Defendant’s secretariat, Road, Ado-Ekiti Branch under Account No. 0560020018091 belonging to the 1st plaintiff which sum the 1st plaintiff has failed and neglected to pay despite repeated demands.
(vi) INTEREST on the said sum of Nine Hundred and Six Thousand Five Hundred and Twenty-Two Naira, Fifty-One Kobo (N906,522.51) at the rate of 22% per annum from 1st October, 2010 until the whole debt is finally liquidated.

The appellants filed their reply to the respondents joint statement of Defence and Defence to counter-claim dated 7th March, 2011 and filed same day.

Trial commenced on the 4th day of July, 2011 and appellants called their 1st witness. See page 37 of the record. On the 20th of March, 2012, the learned trial Judge struck out the suit instituted by the appellants for the absence of both plaintiffs and their counsel though served with hearing notice. The counter-claim was then adjourned for hearing. See pages 49 to 51 of the record. Learned counsel for the appellants filed a motion on notice dated 15th May, 2012, though dated 16th of May, 2012 asking for enlargement of time within which the appellants shall file their application to set aside the order of the court striking out their suit. The learned trial Judge on 5th of July, 2012 struck out the said application and the respondents called their first witness in proof of their counter-claim. After series of adjournments, the matter was adjourned to 18th of October, 2013 for definite hearing. The then counsel for the appellants wrote a letter dated 16th of October, 2013 asking for adjournment but the trial court refused the application and hearing proceeded with respondents as counter-claimants calling their 2nd witness. See page 84 of the record. The court noted that the claimant’s counsel appeared last in the case on the 8th of March, 2013. Hearing was adjourned to 25th of October, 2013. On that day, claimants’ counsel failed to appear in court. 1st claimant sought the leave of court to engage the service of another lawyer but the court refused to adjourn the hearing. See lines 5 to 13 of page 104 of the record. After concluding with the examination in chief of the respondents’ 2nd witness, the court adjourned the matter to 29th of November, 2013 for cross-examination. On the 29th of November, 2013, a new counsel in the person of Akingbade Emmanuel announced his appearance for the claimants and the respondents’ counsel objected to the appearance on the ground that Order 48 Rule 2 of the Rules of the court had not been complied with and also that previous costs awarded against the claimants have not been paid. The new counsel requested for adjournment so that he could fulfill all the conditions. The court refused the application and proceeded to foreclose the claimants’ right to cross-examination. See page 88 of the record. Learned counsel for the defendants was allowed to address the court. The court then adjourned the matter for Judgment. The learned trial Judge on 31st of January, 2014 entered Judgment in favour of the defendants as per the reliefs sought in the counter claim. See page 108 to 109 of the record.

Dissatisfied with the decision, appellants lodged an appeal to this court vide their Notice and Grounds of Appeal dated 29th day of April, 2014 and filed on same date. Pursuant to order of court sought and obtained, the appellants’ Notice of Appeal was amended on 24th day of October, 2014 but deemed properly filed and served on 4th day of November, 2014. The amended Notice of Appeal contained 4 grounds of appeal. The grounds shorn of particulars read as follows:-
“GROUNDS OF APPEAL:
GROUND 1
The learned trial Judge erred in law and breached the Claimants/Appellants’ right to fair hearing when he denied their counsel audience on the 29th November, 2013 and foreclosed their right to cross-examination of the Defendants’ 2nd witness.

GROUND 2
The learned trial Judge erred in law in awarding cost of Seventy Five Thousand Naira (N75,000.00) against the Claimants/Appellants for asking for adjournment to enable them engage a new counsel to prosecute their case.

GROUND 3
The learned trial Judge erred in law in his holding that the Defendants/Counter Claimants established their counter-claim against the Claimants/Counter Defendants.

GROUND 4
The decision of the court is against the weight of evidence.

4. RELIEFS SOUGHT FROM THE COURT OF APPEAL
i. Allow the Appeal
ii. Declare the counter-claim proceedings before the trial court a nullity.
iii. Set aside the entire decision of the trial court.”

In compliance with the rules of court, parties filed and exchanged their respective briefs of argument. The appellants’ brief of argument settled by Emmanuel Akingbade Esq. dated 11th day of November, 2014 was filed on 12th day of November, 2014. While the Respondents’ brief of argument settled by Femi Sarumi Esq. dated 20th day of March, 2015 was filed on 20th day of March, 2015. Appellants’ Reply brief dated 2nd day of April, 2015 was filed on 8th day of April, 2014. At the hearing, both counsel adopted their respective brief of argument. Appellants’ counsel urged the court to allow the appeal and grant the reliefs sought as per the notice of appeal. While respondents’ counsel urged the court to dismiss the appeal.

The appellants’ brief of argument contained three issues for determination as follows:-
(i) Whether having regard to the facts and circumstances of this case, can it be said that the appellants were accorded fair hearing on the trial courts proceedings of 29th day of November, 2013.
(ii) Whether the learned trial Judge did not exercise his discretion wrongly when he awarded the cost of Seventy Five Thousand Naira (N75,000.00) against the appellants for asking for adjournment to get a new counsel to prosecute their case for them.
(iii) Whether the learned trial Judge was not wrong in holding that the defendants have clearly established the counter-claim against the claimants. Distilled from grounds one, two, and three of the amended Notice of Appeal.

On behalf of the Respondents, two issues were distilled for determination from Grounds 1, 2, and 3 of the amended Notice of Appeal, as follows:-
(1) Whether by the totality of the conduct of the Appellants before the lower court, the learned trial Judge denied the Appellants their right to fair hearing and if no, whether the learned trial Judge did not exercise its discretion Judicially and Judiciously in awarding the sum of Seventy Five Thousand Naira (N75,000.00) against the Appellants as cost of adjournment granted to them on 25th day of October, 2013. Grounds 1 and 2.
(2) Whether by the unchallenged evidence (both Oral and documentary) placed before the trial Judge, the lower court was not right to have held that the Respondents who were the Defendants/Counter-claims before the court have not established their counter-claim against the Appellant. Ground 3 of the Amended Notice of Appeal.

In determining this appeal, I will adopt the issues raised by the appellant.

While arguing issue one, learned counsel for the appellants submitted that, it is now elementary law that every person is entitled to fair hearing in the determination of his Civil rights and obligations. According to counsel, Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria as amended which guarantees the right has received attention of all kinds in a plethora of cases. Reliance was placed on ONI Vs FAYEMI (2008) 8 NWLR (PT.1089) 400, OKEREKE & ANOR Vs IBE & ORS (2008) LPELR 4714 (art), ADIGUN Vs A. G. OYO STATE & ORS (1987) 3 SC 308; 1987 1 NWLR (PT. 53) 678, AVONG Vs K.R.P.C. LTD (2002) 14 NWLR (PT. 788) 508. Learned counsel also relied on the cases of OGOLO Vs FABURA (2003) 11 NWLR (PT.831) 231 @ 262 B-C and ONWUKA Vs OWOLEWA (2001) 7 NWLR (PT. 718) 695 at 713 to emphasize the right to cross-examination. Counsel relied on the case of ONWUKA Vs OWOLEWA (Supra) wherein the court held that to deny a party the right to cross-examine his adversary without legal reasons amounts to denial of fair hearing as enshrined in Section 36(1) of the 1999 Constitution of Nigeria. Whether a party has been afforded an opportunity to exercise his right to fair hearing depends upon a careful consideration of the facts and circumstances of each case and the test to be applied in each case is an objective one based on the impression of a reasonable and fair minded observer at the trial. See GADO Vs ILIYASU (2014) LPELR-23066 (CA).

On principles applicable to circumstances where a party engages the services of a new counsel to take over his matter received serious consideration in PAM Vs ANPP & ORS (2007) LPELR-CA/A/118/2007; (2008) 4 NWLR (PT. 10077) 219. Learned counsel relied on the case of PAM Vs ANPP (Supra) and submitted that the appellants were unlawfully denied their right to cross-examine the 2nd defence witness on the 29th of November, 2013 when the trial Judge denied their new counsel audience and foreclosed their right to cross-examination. Counsel reproduced the proceedings of 29th day of November, 2013 appearing at pages 89 to 90 of the record.

Learned counsel further submitted that the rules of court under which the case was commenced and conducted was the Ondo State High Court (Civil Procedure) Rules as applicable to Ekiti State, and no part of the rules required filing of application for change of counsel as a condition precedent for granting of audience to a counsel who appears for a party in a case before the court. That Order 48 Rule 2 of the rules, relates to sittings of the court, as such the learned trial Judge erred in his ruling when he said that appellants’ counsel was not properly before the court having not complied with Order 48 Rule 2 of the rules of court. It was the contention of learned counsel for the appellant that Order 48 rule 2 of the Ekiti State 2011 High Court (Civil Procedure) Rules is not applicable to the case at hand. This is because as at the 1st day of August, 2011 when the Ekiti State High Court (Civil Procedure) Rules 2011 came into existence, the matter was already part-heard with the trial having commenced on the 4th of July, 2011 when the 1st claimant gave evidence as PW1. Counsel relied on Order 1 Rule 1 which states: “These Rules shall apply to all causes and matters filed before or after the commencement of these rules but are yet to proceed to trial”. According to counsel, the learned trial Judge was wrong when he said that the necessary application for a change of counsel under Order 48 rule 2 of the rules of court have not been complied with. Learned counsel relying on the portion of the law stated in PAM Vs ANPP & ORS (Supra) contended that the court must allow the counsel to represent the party without any restriction or any procedural requirement because there is no rule of law or practice that limits the number of counsel to be engaged by a party in any adjudication. That the court cannot validly exercise any discretion to curtail the fundamental right of a litigant to a trial within the meaning of Section 36 of the Constitution. Counsel urged the court to hold that the learned trial Judge unlawfully refused audience to the counsel for the appellants in the proceedings before him on 29th day of November, 2013 and he ipso facto denied the appellants their constitutionally protected right to fair hearing. Counsel referred to the trial court’s proceedings of 18th and 25th of October, 2013 to show that appellants clearly wanted their case to be prosecuted by a counsel, and they never compromised their right to have one. He urged the court to resolve this issue in favour of the appellants.

In response, respondents first itemized instances where the trial court granted adjournment to the appellants, in urging us to determine whether the appellants were denied fair hearing. Learned counsel submitted that “fair hearing has been defined in a plethora of authorities by the apex court. Counsel referred to the case of BARRISTER (MRS) AMANDA PETERS PAM & ANOR Vs NASIRU MOHAMMED & ANOR (2008) ALL FWLR (PT. 435) 1868 @ 1915 wherein NIKI TOBI, JSC, defined fair hearing as “giving equal opportunity to the parties to be heard in the litigation before the court. It means a trial conducted to all legal rules formulated to ensure that Justice is done to the parties.” See also EKPETO Vs WANOGHO (2004) 18 NWLR (PT. 905) 394 and INEC Vs MUSA (2003) 3 NWLR (PT. 806) 72. Counsel contended that fair hearing involves fair trial and a fair trial of a case consists of hearing the whole thing. It implies that every reasonable and fair minded observer who watches the proceedings should be able to come to the conclusion that the court or tribunal has been fair to all parties. That the burden of proof of breach of fair hearing is on the party alleging breach of same and he must do so in the light of the totality of the facts of the case because it is the totality of the facts of a case and the facts alone that determines the acts which constitute non-compliance with the principle of fair hearing. According to counsel, there was an agreement between parties that apart from front loading, all other steps in the matter shall be in accordance with the new rules; as such, appellants cannot be heard to complain about the insistence of the respondents on the need for the appellants to file an application for change of counsel on 29th day of November, 2013.

Learned counsel was of the view that, in determining whether the trial Judge granted the appellants a fair hearing, this court has a duty to assess the totality of the conduct of the Appellants before the proceedings of 29th day of November, 2013. That the learned trial Judge granted adjournments on thirteen occasions before the 29th day of November, 2013. He urged the court not to take the event of 29th day of November, 2013 in isolation in determining whether the learned trial Judge afforded the appellants fair hearing. Learned counsel maintained that appellants’ counsel was duty bound to comply with the new rules. That the reason adduced as the basis of denial of fair hearing by the appellants is an after-thought. Counsel referred to events that took place on 29th day of November, 2013.

Furthermore, learned counsel submitted that assuming but not conceding that the appellants are right in their submission as contained in paragraph 4.03 to 4.10 particularly 4.06 of the Appellants’ Brief of Argument, there is a professional duty imposed on Emmanuel Akingbade Esq. and Dele Adefisayo Esq to inform the court as well as the Respondents’ counsel of the change of counsel. Reliance placed on DR. (REV) OLAPADE AGORO VS OBA ADEKUNLE AROMOLARAN & ANOR (2011) LPELR-8906 (CA). That the trial Judge having enforced the provisions of Order 48 Rule 2 of Ekiti State High Court (Civil Procedure) Rules and Order 49 Rule 8 of Ekiti State High Court (Civil Procedure) Rules as well as Rule 29(2) of the Rules of Professional Conduct of Legal Practitioners 2009, the defence of fair hearing is not available to the Appellants because the rules of the lower court and the provision of Rules of Professional Conduct have in themselves complied with fair hearing. Counsel urged the court to hold that the trial Judge did not breach the appellants’ right to fair hearing.

This issue is crucial in that the complaint of the appellants relates to denial of fair hearing. The kernel of appellants’ complaint is that they were not accorded fair hearing in the trial court’s proceedings of 29th day of November, 2013 when the Judge refused to grant audience to the new counsel for the appellants and foreclosed their right to cross-examination.

I wish to note that the complaint of the appellants relates to the proceedings of 29th day of November, 2013. I find it necessary at this stage to narrate in detail what transpired at the trial court. The proceedings of the said 29th day of November, 2013 are contained on pages 89 to 90 of the record of Appeal. The relevant parts of the proceeding are reproduced hereunder thus:-
“……………1st claimant present, the 2nd is absent. The 2nd defendant are absent. Akingbade Emmanuel for the claimant. Femi Sarumi for the defendants. Mr. Femi Sarumi objects to his appearance, on the basis that Mr. Akingbade Emmanuel is appearing for the first time in this case under Order 48 rule 2 of the Rule of Court the claimant is enjoyed (sic) to file an application for a change of counsel. Having failed to file an application he cannot appear in this case. The cost of Seventy Five Thousand Naira (N75,000.00) was awarded and pursuant to order 49 such cost must be paid for his appliance (sic) to be granted in this case. Mr. Akingbade confirmed that no application has made to change counsel. On the issue of cost, he confirmed no knowledge about this. He now urges the court to adjourn this case to enable the claimants fulfill all the conditions. In reply Mr. Sarumi Cites COSY ENZENWAFOR Vs COMMISSIONER OF POLICE (2009) LPELR 4004/CA where OMOLEYE JCA demystified the word interest of Justice. Interest of justice is for all parties. He urges the court not to entertain the application as he cannot be heard and he urges the court to allow the address by the defendants to proceed.
RULLING-The learned counsel for the claimant is not properly before the court. The necessary application for a change of counsel under order 48 rule 2 of the rules of court have not been complied with, consequently the request for an adjournment is hereby refused. The claimants cannot also cross-examine the defence witness who gave evidence in this case last as having engaged the services of a counsel who refused to show up again in this case cannot now prosecute the claim again. Consequently, the cross-examination of the witness is foreclose. The address of the learned counsel for the defendants is allowed to proceed.”

The proceedings of the trial court reproduced supra are clear and unambiguous. There is no dispute as to the fact that appellants were denied representation by counsel of their choice and their right to cross-examine the 2nd witness called by the respondents was foreclosed. The question now is whether the learned trial Judge breached the appellants’ right to fair hearing. The right to fair hearing is a fundamental constitutional right guaranteed by Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 and a breach of this right in trial or adjudication will vitiate the proceedings, rendering the same null and void and of no effect. 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 constitution in such manner as to secure its independence and impartiality. The determinant factor for the application of the principle of natural justice is fairness. In other words, natural Justice is fair play in an action. See EXPARTE OBIYAN (1973) 12 SC 21. I would restate the well known principle of law pertaining to fair hearing as reiterated in the case of LAMBERT IWUOHA Vs FELIX OKOROIKE (1996) 2 NWLR (PT.429) 231; wherein Rowland JCA (of blessed Memory) held thus:-
“It is a fundamental requirement of our adversary system of administration of Justice that a party to the litigation before the court must be heard before the court can determine his civil rights or obligations before it. The right to be heard is so fundamental a principle of our adjudicatory process that it cannot be compromised on any ground. NWOKORO Vs ONUMA (1990) 3 NWLR (PT. 136) 22 at 35, (1990) 5 SCNJ 93, 1990 5 SC (PT. 1) 124 referred to and applied.”

The principle of fair hearing incorporates the audi alteram partem rule. It means “hear the other side.” The components of the audi alteram partem rule were fully set out in the case of ESHENAKE Vs GBINIJE (2006) 1 NWLR (PT. 961) 223 at 249. In MAGNA MARITIME SERVICES LIMITED & ANOR Vs S.A. OTEJU & ANOR (2005) 14 NWLR (PT. 945) 517 at 543 Paras C-D, EDOZIE JSC had this to say:-
“The expression “fair hearing” means a trial conducted according to all the legal rules formulated to ensure that Justice is done to the parties in a case, and one of such rules is the rule audi alteram partem. See ARIORI Vs EZEMO (1983) 1 SC 13 at 24 (1983) 1 SCNLR 1 at 254, RASAKI A. SAHI Vs MADAM TOWERO EGEIBON (1994) 6 NWLR (PT.348) 23. Fair hearing lies in the procedure followed in the determination of the case and not in the correctness of the decision. See State Vs ONAGORUWA (1992) NWLR (PT.221) 33 at 56.”
In general, the rule is that a verdict should not be entered against a man on a matter relating to his civil rights or obligations without being given an opportunity of being heard. A denial of right to be heard or opportunity to be heard is a breach of constitutional right and rules of natural justice and should not be allowed.

The true test of fair hearing is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case.

I have stated the law and all that relating to fair hearing. The burden is on the party alleging breach of the right to fair hearing and indeed the audi alteram partem rule to prove the breach. The party alleging must prove (a) That there was a matter before a court (b) That he was not given an opportunity to be heard (c) That he had the right to be heard, that is he had a locus standi in the matter (d) That even if he was heard the hearing was inadequate and therefore unfair. See ONAGORUWA Vs IGP (1991) 5 NWLR (PT.193) 593 at 641. Have the appellants satisfied the requirements? My answer is in the affirmative. The record clearly showed that appellants’ new counsel was denied audience on the 29th day of November, 2013 on the ground that he did not comply with Order 48 Rule 2 of the rules of court by filing application for change of counsel. By virtue of Section 36(1) of the Constitution of Nigeria, 1999, for the determination of his civil rights and obligations, a citizen has the fundamental right to a counsel of his own choice. In PAM Vs ANPP (Supra) this court stated thus:-
“A litigant is free at all times to change his counsel. He can do so personally in court by announcing it or through any counsel of his choice. The court cannot intervene in any form under the guise that it was exercising a discretion to approve or disprove as the court had no such discretion to give leave to a litigant to change his counsel. If such discretion were to exist, it would also imply that the court could refuse such leave and that would be odious in the extreme both to the litigant and the legal profession. See N.U.R. Vs N. R. C. (1996) 9 NWLR (PT. 473) 490.”

It is not very clear from the ruling of the trial court whether the learned trial Judge relied on Order 48 Rule 2 of the Ondo State High Court (Civil Procedure) Rules as applicable to Ekiti State or the new Ekiti State High Court (Civil Procedure) Rules, 2011. It is evident that the suit was commenced under the Ondo State High Court (Civil Procedure) Rules as applicable to Ekiti State. As at the time that Ekiti State High Court (Civil Procedure) Rules, 2011 came into effect, the matter was already part-heard. The Ondo State High Court (Civil Procedure) Rules, did not require filing of an application for change of counsel in a proceeding. By Order 1 Rule 1 of the Ekiti State High Court (Civil Procedure) Rules, 2011, the rules are not applicable to part heard cases. Order 1 Rule 1 states: “These Rules shall apply to all causes and matters filed before or after the commencement of these rules but are yet to proceed to trial.” The case under consideration is part heard. The proceedings is supposed to be conducted in accordance with the old rule. However, learned counsel for the respondent stated that parties agreed to conduct remaining proceedings in accordance with the new Ekiti State (Civil Procedure) Rules, 2011. If that was the true position of things, then Order 48 Rule 2 of the Ekiti State High Court (Civil Procedure) Rules, 2011 will apply and appellants’ counsel was required to file application for change of counsel. Even if the learned trial Judge relied on Order 48 Rule 2 of Ekiti State High Court (Civil Procedure) Rules, counsel ought to have been granted adjournment to enable him comply with the rules. As earlier observed, a party is entitled to change his counsel at will. The trial court was wrong to have refused the adjournment sought. Appellants were also denied the right to cross-examine the 2nd witness called by the respondents in proof of their counter claim. This was also done in breach of the appellants’ right to fair hearing. The importance of cross-examination cannot be over emphasized. The law places a duty on the trial Judge to provide the opportunity for all parties to be heard. It is pertinent at this stage to note the observation of Nnaemeka Agu, JSC in Dawodu Vs Olugundudu (1986) 4 NWLR (PT. 33) 104 particularly at page 114 where he held:
“…………The learned trial Judge obviously acted out of exasperation for the proceedings. Having regard to the constant out-cry against delays in the trial of cases and the consequent congestion of our courts, this is understandable. But, in showing his disapproval of the situation, he should have done well to remember that certain features of our adversary system of administration of justice carry with them some implications of inevitable delay. The audi alteram partem rule, (which together with the rule nemo judex in causa sua form the twin pillars upon which fair hearing is based), carried with it the need to give to all parties due notice of hearing and the opportunity to be heard and to cross-examine every witness called by ones adversaries. Generally, a breach of the rule, save in a few statutory exceptions will invalidate the proceedings because it is breach of not only the right to fair hearing entrenched in our Constitution but also a breach of rule of natural law.” (Underlining mine for emphasis).
The principle of fair hearing lies not in the correctness or propriety of the decision but rather in the procedure followed in the trial and determination of a case. In State V. Onagoruwa (1992) 2 SCNJ 1 @ 56 the Supreme Court per Karibi Whyte, JSC, re-emphasized this principle thus:-
“It is only when the opponent has been heard that the Judge would be seen to be discharging the duty of an unbiased umpire. Learned counsel for the respondent appears to consider the absence of miscarriage of justice as a consideration to ameliorate an infringement of a provision of fundamental human right. This is not the correct legal position. The violation of the rule of audi alteram partem per se lies in the breach of the fundamental human right. Once right is violated, it is irrelevant whether the decision made subsequent thereto is correct. See: ALHAJI UMORU ABBA TUKUR V. GOVT. OF GONGOLA STATE (1989) 9 SC 1; (1989) 4 NWLR (PT.117) 517, (1989) 9 SCNJ, (1989) ALL NLR 5575, (1989) 20 NSCC (PT.111) 225.”
In another related case of OLOWOOKERE Vs STATE (2012) 12 WRN 89 at 117, His lordship NWEZE JCA as (he then was) observed as follows:-
“Instructively the touch stone for determining the observance of fair hearing in trials is not the question, whether injustice has been occasioned on any party due to want of hearing. It is rather the question whether an opportunity of hearing was offered to the parties to be heard, in this case the appellant thus in order to be fair, “hearing or opportunity to be heard must inter alia encompass a party’s right to cross-examine witness.”
The procedure adopted by the learned trial Judge constitutes a breach of the principle of fair hearing. Learned counsel for the respondents made heavy weather about the conduct of the appellants. The record showed that the series of adjournments granted to the appellants referred to by the respondents’ counsel relates to the substantive suit which had already been struck out. None of the grounds of appeal made any complaint relating to the substantive suit. The complaint relates to the proceedings of 29th November, 2013 and the Judgment delivered by the lower court in respect of the counter-claim on 31st January, 2014. The record showed that hearing commenced in respect of the counter-claim on 5th day of July, 2012. From 5th day of July, 2012 to 29th day of November, 2013 there were a total of five adjournments. On 1st day of August, 2012, 27th day of September, 2013 and 18th day of October, 2013 the case was adjourned at the instance of defence counsel, while on 25th day of January, 2013 and 12th day of April, 2013 the case was adjourned at the instance of the claimant. As far as the proceedings relating to the counter-claim is concerned, the complaint of the respondents that appellants delayed the hearing of same is unfounded.
I agree with learned counsel for the appellants that the appellants were unlawfully denied their right to cross-examine the 2nd Defence witness on the 29th of November, 2013, when the learned trial Judge denied their new counsel audience and foreclosed their right to cross-examination.

It is settled principle of law that where, in any proceedings, the rules of natural justice or the principles of fair hearing are breached, such a breach renders the entire proceedings null and void and the appropriate order is one of retrial before another Judge of the court. See RASAKI ASAHI Vs MADAM TOWURO EGEIHON (1994) 6 NWLR (PT. 348) 23 at 44 and ADIGUN Vs A. G. of OYO STATE (No.2) & ORS (1987) 2 NWLR (PT. 56) 197. In EGEVAFO EKPETO & ORS Vs IKORO WANOGHO & 4 ORS (2004) 18 NWLR (PT. 205) 394 at 411 paras A-C the Supreme Court held thus:-
“There is no doubt at all that the principle of fair hearing is fundamental to all court procedure and proceedings and like jurisdiction the absence of it vitiates proceeding, however well conducted.”

For the reasons stated hereinabove, I would resolve issue 1 in favour of the appellants. The resolution of issue one in favour of the appellants, terminates the entire appeal. It would be an exercise in futility to resolve issues 2 and 3 raised by the appellants for determination in this appeal. I do not want to engage in academic exercise. See PLATEAU STATE Vs A. G. FEDERATION (2006) ALL FWLR (PT. 305) 590 at 646 paras H-A and HABIB NIG. LTD Vs GIFTS UNIQUE NIG LTD (2000) ALL FWLR (PT. 241) 234 at 260 paras E-F.

In the final analysis, I hold that this appeal is meritorious and succeeds in part. Appeal allowed in part. The entire proceedings relating to the counter-claim, inclusive of the Judgment of the lower court delivered on the 31st day of January, 2014, are hereby set aside for being a nullity. Since counter-claim is taken as an independent action, I shall make an order remitting same to the Chief Judge Ekiti State for assignment to another Judge of the High Court, with the exception of Fowe J, to hear and determine the case afresh or de novo. Parties to bear their own costs.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the lead judgment prepared by my learned brother ADZIRA GANA MSHELIA, JCA. In my considered view, his lordship has dealt extensively and exhaustively with the issue relating to the breach of Appellants’ right to fair hearing in the proceedings of the Lower Court in the counter-claim and in which Fowe, J. entered judgment in favour of the Respondents. The extensive and incisive consideration of this fundamental issue and its resolution (with which I am in total agreement) has left me with nothing meaningful or useful to add to the lucid lead judgment. Accordingly, I adopt the lucid and illuminating lead judgment as mine.

I too therefore find the appeal (insofar as it relates to the judgment in the counter-claim) to succeed and allow same. The proceedings in the coutner-claim and judgment delivered therein are therefore set aside as the breach of Appellants’ right to fair hearing in respect of the counter-claim has completely vitiated everything the Lower Court presided over by Fowe, J. did in relation to the said counter-claim. I also abide by the consequential order made in the lead judgment that the instant case be remitted to the Chief Judge of Ekiti State for assignment to another Judge of the High Court of Ekiti State (save Fowe, J.) to hear and determine the counter-claim therein de novo.

BOLOUKUROMO MOSES UGO, J.C.A.: I have had the privilege of reading in draft the lead judgment delivered by my learned brother Mshelia J.C.A., and I agree with my Lord’s reasoning and conclusions. I think what the learned trial judge did in this case by refusing to accommodate the new counsel of the appellant because he failed to make a formal application for change of counsel as directed by the Rules of that court and the appellant had failed to pay previous costs of a surprisingly whopping sum of N75,000.00 for an adjournment, earlier amounted to killing a rat with a sledge hammer. I think there was no reason whatsoever to wield that very heavy sledge hammer especially when the appearance or instruction of the new counsel was not disputed and he was not even applying for adjournment. While one may sympathise with a court whose proceedings are bogged down by a party in these days of quarterly returns and sanctions from NJC for non or poor performance, the court must always endeavour to balance that worry against the needs of fair hearing and the duty on the High Court of Justice to live up to the full meaning of its name by doing real justice and hearing cases on merit as much as it is possible to do so. In the pursuit of that if the Rules of court (including the rule of change of counsel in question), which are not masters but handmaids to justice, need be breached from time to time, so be it. See Oloruntoba-Oju v. Abdul-Raheem (2009) ALL FWLR (Pt.497) 1 @ 29 where it was said by the apex court, per Adekeye JSC, that:
“Courts are set up to do substantial justice and in the pursuit of this, all forms of technicalities which will act as a detriment to the determination of the substantial issues between the litigants be shunned. While recognizing that rules of court should be complied with by parties to a suit, it is also in the interest of justice that parties should be afforded a reasonable opportunity in appropriate circumstances for their claim to be adequately investigated and properly determined on merit.”
Emphasis mine.
See also similar sentiments expressed by this Court, per Ogunwunmiju J.C.A., in Olaniyan v. Oyewole (2008) ALL FWLR (Pt.399) 508; (2008) 5 NWLR (Pt.1076) 114 @ 138.
It appears to me that the lower court even failed to advert its mind to the policy direction of its Rules as provided in Order 1 Rule 2(3) of the High Court of Ekiti State (Civil Procedure) Rules (2011), stating that:
The application of these Rules shall be directed towards the achievement of a just, efficient and speedy dispensation of justice.

I think the hearing of the case on appeal could have well gone on at the Lower Court with the new counsel of the appellant without hurting anybody’s interest even without the ‘almighty’ change of counsel application and the payment of costs that day, which in any case could well have been directed to be paid before judgment. Short cuts, they say, sometimes end up longer than the known long route. That is what has happened in this case and it is unfortunate. The trial judge, Fowe J., with all due respect, got lost in the unnecessary thorny short route he chose to take. His decision is perverse and it must be set aside as directed by my Lord in the lead judgment, which I here adopt.

I also abide by the order for costs therein contained.

Appearances

E. K. Akingbade with S. K. Okonkwo Esq.For Appellant

AND

(Miss) P. I. OnyekwenaFor Respondent