MR. PIUS GBENEYEI & ORS v. MR. WILLIAMS ISIAYEI & ORS (2014)

MR. PIUS GBENEYEI & ORS v. MR. WILLIAMS ISIAYEI & ORS

(2014)LCN/7315(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 25th day of June, 2014

CA/B/8/2007

RATIO

COURT: INTERFERENCE; WHEN CAN AN APPELLATE COURT INTERFERE WITH THE EXERCISE OF DISCRETION OF THE TRIAL COURT

It is a trite restatement of the law that where a trial court properly exercises discretion in a matter, an appellate court will not interfere simply because it might have exercised the discretion differently. It is only where the discretion is not a proper exercise of judicial discretion and has occasioned a miscarriage of justice that an appellate court will interfere. See NGWU vs. ONUIGBO (1999) 13 NWLR (PT 636) 512 at 524 – 525 and T. S. A. INDUSTRIES LTD VS. KEMA INVESTMENTS LTD (2006) 2 NWLR (PT 964) 300. In exercising discretion, a court must be guided by the spirit and principles of law. In the words of Mohammed, JSC in OLUMEGBON vs. KAREEM (2002) 34 WRN 1 at 8:
“…judicial discretion would mean that they were to act according to the rules of reason and justice not according to private opinion and according to law and not humour.”
See also THE OWNERS OF THE M. V. LUPEX V. NIGERIAN OVERSEAS CHARTERING & SHIPPING LTD (2003) 9 MJSC 156 at 168. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

ACTION: THE TRIAL OF AN ACTION; PROCEDURAL LAW GOVERNING THE TRIAL OF AN ACTION

The law is that the procedural law governing the trial of an action is the adjectival law in force at the time of the trial of the action, unless there is a provision to the contrary: OWATA vs. ANYIGOR (1993) 2 NWLR (PT 276) 380 at 391G, 392E and 395 D – E. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

PRACTICE AND PROCEDURE: PRESENTATION OF EVIDENCE; THE GUIDING LEGAL PROCEDURE ON PRESENTATION OF EVIDENCE

In precis terms, under the procedure, the party on whom the burden of proof lies shall begin by producing his witnesses. When he has concluded his case, the other party shall be at liberty to call his own evidence, but where he does not call evidence, the party beginning shall then address the court first and the other party will reply. Where the other party calls evidence and concludes his case, he will then address the court first and the party beginning will thereafter address the court. In stating the guiding legal procedure on presentation of evidence, Lewis, JSC stated as follows in THE LIQUIDATOR OF EFUFU C. P. M. S. LTD (J. F. OGUNKOYA) V. ABEYETA (1970) ALL NLR 12 or (1970) LPELR (2338) 1 at 7:
“The party beginning should be allowed to conclude his evidence. Once he has done so, it is open to the other party to submit that there is no case for him to answer, in which case the judge should decline to give ruling at that stage unless the party states that he does not intend, in any event, to call evidence: Tandoh vs. CPA (1944) 10 WACA 186. In an exceptional case it cannot be open to doubt that where a plaintiff himself has shown that he has no case a judge trying a case as judge and jury is entitled to stop the case after the plaintiff has closed his case and addressed the court: Aduke vs. Aiyelabola (1942) 8 WACA 43.” per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

COURT: MISCARRIAGE OF JUSTICE; WHAT CONSTITUTES MISCARRIAGE OF JUSTICE

Now, what constitutes miscarriage of justice varies from case to case as the concept is denoted by the facts of the given case. In simple terms, miscarriage of justice is a failure of justice. Miscarriage of justice occurs when the court fails or refuses to follow the Rules and arrives at a decision which is prejudicial and inconsistent with the legal rights of a party.
Miscarriage of justice is failure on the part of the court to do justice. It is justice misplaced, mis-appreciated or misappropriated. See OGUNTAYO vs. ADELAJA (2009) 15 NWLR (PT 1163) 150 or (2009) LPELR (2353) 1 at 43 – 44 (per Tobi, JSC) and ONAGORUWA VS. STATE (1993) 7 NWLR (PT 303) 49 (per Tobi, JCA (as he then was]). The miscarriage of justice on the basis of which an appellate court will interfere is where the violation of some principle of law or procedure is such that if corrected a different result will be the outcome; or it may be the neglect of some principle of law or procedure which if it had not been neglected a different result will be the outcome: DAGACI OF DERE vs. DAGACI OF EBWE (2006) 7 NWLR (PT 979) 382 or (2006) LPELR (911) 1 at 42. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO FAIR HEARING; THE TEST OF FAIR HEARING AND THE PURPOSE OF THE CONSTITUTIONAL PROVISION ON FAIR HEARING

The test of fair hearing is the reasonable man test, id est, whether an ordinary citizen sitting in the court room watching the proceedings would leave the court room with the impression that justice has been done: MOHAMMED vs. KANO NATIVE AUTHORITY (supra), NDUKAUBA VS. KOLOMO (2005) 1 SC (PT 1) 80 at 90 and ALSTHOM S. A. vs. SARAKI (2005) 1 SC (pt 1) 1 at 14 – 15. The constitutional provision on fair hearing is designed to ensure that in the administration of justice, parties must each be accorded every opportunity of canvassing their case within the rules regulating the procedure: NIGERIA – ARAB BANK LTD v. COMEX (1999) 6 NWLR (PT 608) 648 and ATOBATELE vs. FASERU (2012) LPELR (9305) 1 at 20 – 21. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.

JUSTICES

HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria

HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria

UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria

Between

1. MR. PIUS GBENEYEI
2. MR. CHRISTOPHER DOVE
3. CHIEF GARDEN GBENEYEI
4. MR. FRANCIS AKARA
(for themselves and on behalf of Okia Community in Burutu L.G.A. Delta State) Appellant(s)

AND

1. MR. WILLIAMS ISIAYEI
2. MR. MONDAY LUGBENWEI
3. MR. OKUKU IMOLE WURUTUAWEI
(for themselves and on behalf of Agge Community in Ekeremor Local Government Area Bayelsa State) Respondent(s)

UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Delta State sitting at Bomadi in Suit No. HCB/13/2004, delivered on 27th September, 2007 wherein the case of the Plaintiffs/Appellants was dismissed. The judgment of the lower court is at pages 163 – 165 of the Main Record of Appeal, and also at pages 5 – 7 of the Additional Records of Appeal, which was deemed 25 properly filed and served on 2nd November, 2012. The Notice of Appeal against the aforesaid decision of the lower court is at pages 166 – 167 of the Main Record of Appeal.

PREFATORY
The facts leading on to this appeal in so far as can be deciphered from the Records of Appeal are fairly simple and straightforward. They are not convoluted in any manner whatsoever. For a full appreciation of the issue arising in this appeal it will be apposite to give a detailed background of the facts leading on to this appeal. Apropos of the foregoing, the Appellants herein, who were the Plaintiffs before the lower court commenced Proceedings against the Respondents herein as the 1st – 3rd Defendants and Shell Petroleum Development Company of Nigeria Limited, which was sued as the 4th Defendant. The Appellants, who expressed in the writ that they brought the action in a representative capacity, and which representative capacity was approved by the lower court in its order of 22nd November 2004 (see page 26 of the Records), claimed the following reliefs against the Defendants:

“As against the 1st, 2nd and 3rd Defendants
1. A declaration of statutory right of occupancy to that piece or parcel of land known and called Okia Community Land, which said land is lying being and situate at Okia Community in Burutu Local Government Area of Delta State of Nigeria, a place within the jurisdiction of this Honourable Court, which said piece or parcel of land will be more particularly delineated and shown on a survey plan to be filed hereafter in support of this action.

As against the 4th Defendant
2. An order of interlocutory injunction restraining the 4th Defendant, from dealing with the 1st, 2nd and 3rd Defendant’s Agge Community, in any manner whatsoever, (including to implementation of the Integrated Pipeline Surveillance Scheme (IPSS) in relation to the Plaintiffs aforesaid Community land situate at Okia Community, Burutu L.G.A., Delta State.
3. A declaration that the Plaintiffs Okia Community being the rightful and bona fide owners and in possession of the said Okia Community land, host to the aforesaid facilities belonging to 4th Defendant, is the Community rightfully entitled to be considered by 4th Defendant for the implementation of the integrated Pipeline Surveillance Scheme (IPSS) for host communities as conceived by 4th Defendant.

As against the 1st – 2nd – 3rd and 4th Defendants
4. Perpetual injunction restraining the Defendants by their servants, agents, privies, workmen or otherwise however from interfering or disturbing the Plaintiffs right and title to peaceful possession and occupation of the said piece or parcel of land situate at Okia Community or preventing or denying the plaintiffs of the right of reaping the benefits accruing to their Community as host to the 4th Defendant’s facilities located at the said Plaintiffs Okia Community, land, in Burutu L.G.A., Delta State.
5. Any other relief in reliefs as this Honourable may deem fit and proper to grant and/or make in the circumstances.”

Upon Shell Petroleum Development Company of Nigeria Limited being served with the court processes, it filed its Statement of Defence as well as an application challenging the jurisdiction and competence of the court to entertain the substantive action. The said application was duly argued and in a considered Ruling delivered on 25th July 2005 and which is at pages 122 – 130 of the Main Records, the lower court upheld the application and struck out Relief numbers 2 and 3 of the Statement of Claim (which I have already reproduced herein) and further discharged Shell Petroleum Development Company Limited since the surviving Reliefs 1 and 4 of the Statement of Claim did not affect them.

From the Records of Appeal, it seems that consequent upon the Ruling striking out Shell Petroleum Development Company of Nigeria Limited and Reliefs 2 and 3 of the Statement of Claim, the Appellants applied to amend their Statement of Claim. The said motion is at pages 147 – 154 of the Main Records of Appeal. The motion was duly argued and in its Ruling of 11th December 2006, which is at pages 156 – 158 of the Main Records of Appeal, the lower court dismissed the application as lacking in merit. It does appear that the Appellants were dissatisfied with the dismissal of the said application to amend their Statement of Claim and in addition to lodging an appeal against the same, they filed an application for stay of further proceedings pending the determination of the appeal.

The said motion was duly argued on 27th September, 2007 (see pages 1 – 3 of the Additional Records of Appeal) and in a Bench Ruling the lower court dismissed the motion and thereafter called upon the Appellants to proceed with their case, since the matter was fixed for hearing that day. See pages 3 – 5 of the Additional Records of Appeal and pages 159 – 162 of the Main Records of Appeal.

Page 5 of the Additional Records of Appeal shows that the Appellants opened their case with the 1st Appellant who adduced very terse and laconic preliminary testimony. There is no account of what transpired thereafter, or if any application was made by counsel, but page 5 of the Additional Records contains the note by the lower court that it had waited for 15 minutes for the Plaintiffs’ counsel to proceed with the evidence of the 1st Plaintiff, but that the learned counsel said that he cannot go on whereupon the lower court called upon the Defendants/Respondents counsel to comment on the attitude of the 1st Plaintiff and their counsel. After taking the comments of the Defendants/Respondents counsel, the lower court proceeded to dismiss the case because the evidence of the 1st Plaintiff did not prove the reliefs in the Statement of Claim and the court was satisfied that the plaintiffs refused to utilise the opportunity offered them to prove their case. The Plaintiffs/Appellants were miffed by the decision of the lower court and appealed against the same. And so here we are.

THE APPEAL
The Main Records of Appeal having been transmitted by the Registrar of the lower court, the Respondents’ Counsel obtained leave of court to compile and transmit additional records to include the proceedings in the lower court of 27th September 2007. The said Additional Records of Appeal were deemed as properly compiled and transmitted on 2nd November, 2012. The parties filed and exchanged briefs of argument.

The Appellants’ Brief of Argument is dated and filed on 17th February 2010. Two issues were therein distilled as arising for determination as follows:

1. Whether the dismissal of the suit by the learned trial Judge based on the evidence adduced by the 1st Appellant halfway and on the first day the Appellants opened their Case without calling on the other Appellant who was also present in court before dismissing the Suit did not amount to a denial of fair hearing.
2. Whether the dismissal of the suit by the learned trial Judge on the first day the Appellants opened their case did not result to a miscarriage of justice.

The Respondents’ Brief of Argument is dated and filed on 19th March 2013. The Respondents formulated a sole issue for determination as follows:
Whether the learned Trial Judge was right in dismissing the Plaintiffs case on the day the case was fixed for hearing when Plaintiffs without any excuse failed, refused and neglected to continue to testify after giving evidence half way?

The Appellants filed a Reply Brief in answer to the submissions in the Respondents’ Brief of Argument. The said Reply Brief is dated and filed on 23rd January 2014.
At the hearing of the appeal, F. O. Owumi, Esq., of Counsel who appeared for the Appellants adopted the submissions in the Appellants’ Brief, settled by Emmanuel O. Uti, Esq., as well the Appellants’ Reply Brief which he settled himself. He urged the Court to allow the appeal. On his part, E. K. Agbroko, Esq., learned counsel for the Respondents adopted the submissions in the Respondents’ Brief of Argument which was settled by Larry Ovwromoh, Esq., and he urged the court to affirm the decision of the lower court and dismiss the appeal.

It seems as clear as crystal that this appeal relates to the exercise of discretion by the lower court. The discretion exercised by the dismissal of the Appellants’ case. The Appellants complain that the manner in which the discretion was exercised amounted to a denial of their right to fair hearing and that it occasioned a miscarriage of justice. The issues for determination distilled by the parties though differently worded impact on the manner in which the lower court exercised its discretion. However, it seems to me that the issues as variously distilled can be subsumed under one expansive and distensible issue which would encompass and be cumulative with the issues distilled by the parties. See SANUSI vs. AMOYEGUN (1992) 4 NWLR (PT 237) 527 at 550 – 551 and NEKA B.B.B. MANUFACTURING CO. LTD VS. A. C. B. LTD (2004) 17 NSCQR 240 at 250 – 251. From the peculiar facts of this matter and the arguments of counsel, the issue which I find apt in this regard and on the basis of which I will presently consider the submissions of counsel and resolve this appeal is:
Whether the decision of the lower court to dismiss the Appellants case consequent upon the failure of the 1st Appellant to continue his testimony amounted to a denial of fair hearing and thereby occasioned a miscarriage of justice.

SUBMISSIONS OF COUNSEL

The Appellants submit that when the 1st Appellant ran into difficulties with his testimony, the lower court ought to have called on the 4th Appellant who was in court to present his case and that failure to do so amounted to a denial of fair hearing. It was contended that it was not open to the lower court to hold that the Appellants did not prove their case when it did not give the 4th Appellant who was in court the opportunity to give evidence and it also did not follow the procedure established in MOGAJI vs. ODOFIN (1978) 4 SC 91 so as to know which evidence was more probable. It was therefore posited that the dismissal of the case amounted to a denial of the Appellants right to fair hearing. The cases of MOHAMMED V. KANO NATIVE AUTHORITY (1968) 1 ALL NLR 424 at 426 and KOTOYE vs. CBN (2001) FWLR (PT 49) 1567 at 1600 were referred to.

It is the further submission of the Appellants that the action was a land matter and that being the first time the matter had come up for hearing, the lower court ought to have granted an adjournment for the Appellants to have another opportunity to present their case since a trial need not be unduly hasty in order to avoid producing an unjust result. The cases of UGHELLI SOUTH L.G.C. vs. EDOJAKWA (2006) ALL FWLR (PT 308) 1301 at 1317 C – D and USIKARO vs. ITSEKIRI LAND TRUSTEES (1991) 2 NWLR (PT 172) 152 at 180 were relied upon. The Appellants maintained that their right of fair hearing having been breached any judgment entered will be a nullity.

The Appellants contend that their case having been dismissed on the first day that they opened their case without the proper procedure being followed by the 1st Appellant being foreclosed and the 4th Appellant who was present being called upon to testify, a miscarriage of justice was occasioned. The definition of miscarriage of justice in TOTAL (NIG) LTD vs. NWAKO (1978) 5 SC 1 was referred to and it was posited that the miscarriage of justice vitiated the decision of the lower court and rendered the same a nullity.
The cases of OBODO vs. OLOMU (1987) 3 NWLR (PT 59) 111 and SALAMI vs. ODOGUN (1991) 2 NWLR (PT 173) 291 were relied upon.

In reply the Respondents submit that no law precludes a court from dismissing a case on the first day of hearing if there are reasons to do so. It was contended that the lower court gave the Appellants the opportunity to proceed with their case but they failed, refused or neglected to do so. The cases of UCHE vs. OBINYA (2002) FWLR (PT 92) 1728 at 1735 and BAMAWO vs. GARRICK (1995) 6 NWLR (PT 401) 356 were referred to. The Respondents maintained that the Appellants did not seek for an adjournment as the Records shows that they kept mute and that after waiting for 15 minutes the lower court then heard from the Respondents Counsel who submitted that the case should be dismissed.

It is the further contention of the Respondents that in line with the procedure laid down in MOGAJI vs. ODOFIN (supra) at 95 – 95, the lower court was right in dismissing the Appellants case as the evidence they adduced was scanty and of no quality and weight relative to the pleadings and claim before the court. The Respondents argue that the Appellants were given a fair hearing but that they failed to utilise the opportunity in consequence of which they cannot complain of lack of fair hearing. The case of PETROTEUM (SPECIAL) TRUST FUND VS. INTEGRATED FACILITY MANAGEMENT SERVICES LTD (2003) FWLR (PT 155) 738 AT 751 E – F was cited in support.

The Respondents posit that the lower court having observed the demeanour of the 1st Appellant in the witness box and the attitude of keeping mute for 15 minutes came to the conclusion that it was an orchestrated and designed plan and that the court had a duty to assert its control over the proceedings. The case of FAGBULE vs. RODRIGUES (2003) FWLR (PT 137) 1171 at 1186 was relied upon.

In their Reply Brief, the Appellants maintain that the lower court should have granted them an adjournment as was done in the case of PETROLEUM (SPECIAL) TRUST FUND v. INTEGRATED FACILITY MANAGEMENT SERVICES LTD (supra) relied upon by the Respondents; and that they were neither negligent nor did they fail to utilise the opportunity afforded them.

RESOLUTION OF THE ISSUE
Let me reiterate that the facts of this matter are not convoluted. Simply put, the case was set down for hearing.
The Appellants opened their case. In the course of adduction of evidence by the 1st Appellant they ran into a hitch; the lower court thereafter dismissed their case. Now the pristine question is whether in the light of the regnant adjectival laws governing the proceedings at hearing, the dismissal of the case was a proper exercise of judicial discretion. It is a trite restatement of the law that where a trial court properly exercises discretion in a matter, an appellate court will not interfere simply because it might have exercised the discretion differently. It is only where the discretion is not a proper exercise of judicial discretion and has occasioned a miscarriage of justice that an appellate court will interfere.
See NGWU vs. ONUIGBO (1999) 13 NWLR (PT 636) 512 at 524 – 525 and T. S. A. INDUSTRIES LTD VS. KEMA INVESTMENTS LTD (2006) 2 NWLR (PT 964) 300. In exercising discretion, a court must be guided by the spirit and principles of law. In the words of Mohammed, JSC in OLUMEGBON vs. KAREEM (2002) 34 WRN 1 at 8:
“…judicial discretion would mean that they were to act according to the rules of reason and justice not according to private opinion and according to law and not humour.”
See also THE OWNERS OF THE M. V. LUPEX V. NIGERIAN OVERSEAS CHARTERING & SHIPPING LTD (2003) 9 MJSC 156 at 168. Now, did the lower court act in accordance with the principles of law when it proceeded to dismiss the case of the Appellants when they could not continue with the testimony of the 1st Appellant?

The Appellants counsel submitted that when the 1st Appellant ran into a hitch, the lower court should have invited the 4th Appellant who was in the court to open his case. I am not impressed by the contention. It has to be remembered that the Appellants were suing in a representative capacity, as duly approved by the lower court.
In the circumstances the Appellants had the same, similar or joint interest in the matter. They filed a joint Statement of Claim and the lower court therefore could not have treated the matter as if it were a several claim by inviting the 4th Appellant to proceed with his own case. Howbeit, the question remains the approach which the lower court ought to have followed when it became faced with the decision of the 1st Appellant and his counsel to keep mute. (See page 5 of the Additional Records).

The trial before the lower court was a trial conducted on pleadings. The law is that the procedural law governing the trial of an action is the adjectival law in force at the time of the trial of the action, unless there is a provision to the contrary: OWATA vs. ANYIGOR (1993) 2 NWLR (PT 276) 380 at 391G, 392E and 395 D – E. At the time of the trial on 27th September 2007, the regnant rules of procedure for the High Court of Delta State was the High Court Civil Procedure Rules of the defunct Bendel State, 1988. Order 37 Rules 15, 16, 17, 18, 19, 20, 21 and 22 thereof set out the order of proceeding at the trial of a case where pleading has been filed.

The above dictum emphasises that at all times a plaintiff is to conclude his evidence and close his case. Page 5 of the Additional Records shows that the Appellants never closed their case nor was their case closed by the court. When from the Records the Appellants kept mute, the lower court invited the Respondents’ counsel “to comment on the attitude of the 1st Plaintiff and the learned Counsel”. In making his comments, the Respondents’ Counsel seemed to have been oblivious of the stipulations of Order 37 Rules 15 et sequentia of the applicable Rules of court which required that the Appellants case should have been closed, after which the Respondents would either call evidence or rest on the Appellants case, if they so desired. Rather unfortunately, the Respondents counsel urged the court to dismiss the Appellants case without the closure of the Appellants case first being adhered to as required by the provisions of the Rules. Sadly, without affording the Appellants the opportunity of closing their case or closing the case of the Appellants suo motu, since the Records reflect that the 1st Appellant and their counsel kept mute, the lower court proceeded to dismiss the case of the Appellants.

The learned counsel on both sides of the divide have canvassed argument on whether the dismissal of the case occasioned a miscarriage of justice. While the Appellants maintain that the dismissal of the case amounted to a breach of their right to fair hearing and thereby occasioned a miscarriage of justice, the Respondents argue that the Appellants were given the opportunity of a hearing which they failed to utilize on account of which no miscarriage of justice had been occasioned.

In the instant case, the failure to afford the Appellants the opportunity of having their case closed in the adduction of evidence as stipulated in the adjectival law is such that if the opportunity had been afforded them a different outcome may have been arrived at. The effect of the dismissal of the case is that the dispute which the Appellants brought for ventilation in court was not decided on the merits. In deciding whether there has been a miscarriage of justice, the appellate court must be satisfied that it is substantial and not one of mere technicality which caused no embarrassment or prejudice to the appellant. See SABURI ADEBAYO vs. A – G OGUN STATE (2008) 7 NWLR (PT 1085) 201 or (2008) LPELR (80) 1 at 22 F – G. It will be stating the obvious to asseverate that the dismissal of the Appellants case was definitely prejudicial to them and it thus occasioned a miscarriage of justice. Where a case has occasioned a miscarriage of justice, it is liable to be set aside however well decided. See NWANA vs. FCDA (2007) 11 NWLR (PT 1044) 59 or (2007) LPELR (2101) 1 at 22.

The established procedure at hearing in the adduction of testimonial evidence is: examination in chief, cross examination and re-examination. The 1st Appellant was still in evidence in chief when the case was dismissed. The further adduction of evidence in examination in chief by the 1st Appellant was not foreclosed; if this was done the Respondents counsel would then have been required to cross examine the witness before the stage at which the Appellants case would have been closed if they were not forthcoming with any other witnesses would be reached. The lower court seemed to have acted too hastily in acceding to submission of the Respondents counsel for the Appellants case to be dismissed. Regrettably in this instance, justice rushed is justice crushed. I have already demonstrated in this judgment that the stipulations of the High Court Rules on the procedure at hearing were not complied with before the Appellants case was dismissed. This occasioned a breach of the Appellants right to fair hearing and also occasioned a miscarriage of justice. Where there has been a denial of fair hearing, it is incurably fatal to the decision of the court as the decision arrived at is bound to be set aside. See OTAPO vs. SUNMONU (1987) 2 NWLR (PT 58) 587 and F. M. B. N. LTD vs. ADU (2000) 11 NWLR (PT 678) 309 at 318 – 319.

CONCLUSION
In the circumstances and flowing from the foregoing, the issue for determination must be resolved in favour of the Appellants. The decision of the lower Court to dismiss the Appellants case without due compliance with the provisions of the Rules of the lower court amounted to a denial of fair hearing and occasioned a miscarriage of justice. The appeal consequently succeeds and the decision of the lower court is hereby set aside. The case is remitted to the lower court for hearing de novo by another Judge, not being Anigboro, J.
The Appellants are entitled to the costs of this appeal which I assess and fix at N50, 000.00.

HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the brilliantly couched and reasoned judgment of my learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. I agree that the appeal be allowed.
Suffice it to say that the procedure adopted by the learned trial judge was in violation of the rules of court. It has obviously led to a gross miscarriage of justice. I also allow the appeal. The decision of Anigboro J. in Suit No. HCB/13/2004 delivered on 27/9/2007 is hereby set aside. I abide by other consequential orders in the lead judgment.

HAMMA AKAWU BARKA, J.C.A.: I have had an opportunity of reading before now the lead judgment rendered by learned brother, UGOCHUKWU ANTHONY OGAKWU, JCA. Having read the record and the issues therein, and having closely followed the reasons and conclusions adumbrated in the judgment, I find them agreeable, and therefore adopt them as mine.
The appeal succeeds and it is hereby allowed. The case is to be remitted back to the High Court to be heard by another Judge. I abide by the order on costs made.

Appearances

F. O. Owumi, Esq.For Appellant

AND

E. K. Agbroko Esq.For Respondent