MRS NSE AKANIYENE & ORS V. MRS GRACE O. ETIM (2012)

MRS NSE AKANIYENE & ORS V. MRS GRACE O. ETIM

(2012)LCN/5505(CA)

In The Court of Appeal of Nigeria

On Thursday, the 28th day of June, 2012

CA/C/141/2010

RATIO

EVIDENCE: PURPOSE OF CROSS-EXAMINATION OF WITNESSES

I agree that Cross-examination of a witness is very important to the party cross-examining. The purpose is to discredit a witness and demolish the case of the opposing party. It is also designed to put across the case of the party cross-examining the witness. Olomosola v. Oloriawo (2002) 2 NWLR Pt.750 page 113. PER UZO I. NDUKWE-ANYANWU, J.C.A.

EVIDENCE: HOW SHOULD A TRIAL COURT EVALUATE EVIDENCE

FAIR HEARING: RIGHT OF FAIR HEARING

The right of fair hearing is a constitutional right enshrined in section 36 of the 1999 Constitution. The right cannot be waived or statutorily taken away. Also, trial Courts are enjoined to ensure that hearing notices are issued on parties before embarking on the trial of any matter before them. Bamgboye v. UNILORIN (1999) 10 NWLR pt.622 page 290; Awoniyi vs. The Registered Trustees of the Rosicrucian order, Amorc (Nig,) (2000) 6 SC pt 1 page 103; Araka v. Ejeagwu (2001) 5 WRN page 1. PER UZO I. NDUKWE-ANYANWU, J.C.A.

FAIR HEARING: TESTS FOR DETERMINING WHETHER A PARTY WAS ACCORDED FAIR HEARING

The question one would ask in this type of case is whether the trial was conducted according to all the legal Rules formulated to ensure that justice is done to the parties. This requires the observance of the twin pillars of the Rules of natural justice which are audi alteram partem and nemo judex in causa sua. Eshenake v. Gbinije (2006) 1 NWLR Pt.961 Page 228. PER UZO I. NDUKWE-ANYANWU, J.C.A.

FAIR HEARING: CONSEQUENCE OF A BREACH OF FAIR HEARING

It is trite law that once there is a breach of fair hearing, the whole proceedings in the course of which the breach occurred and the decision arrived at by the court becomes a nullity: ANPP v. INEC (2004) 7 NWLR Pt.871 page 16; All Peoples Party v. Ogunsola (2002) 5 NWLR Pt.761 page 484; BON Ltd. vs. Adegoke (2006) 10 NWLR Pt.983 page 339. PER UZO I. NDUKWE-ANYANWU, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

1. MRS NSE AKANIYENE
2. MRS GLORY PAUL ETIM (Nee MBONG SAMPSON)
3. JOHN USORO
4. MR ETIM PAUL UKO
5. MR AKANIYENE EFFIONG
6. IKOT BENSON Appellant(s)

AND

MRS GRACE O. ETIM Respondent(s)

UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Akwa Ibom State High Court sitting at Eket. The Respondent as plaintiff filed a suit in High Court, Eket Akwa Ibom State. The claims of the plaintiff/Respondent were set out as follows:
1. A declaration that the Plaintiffs are the rightful owners of all that piece or parcel of land lying and situate along RCC Road, Ekpene Ukpa Eket, the said piece of land more particularly described and delineated on Survey Plan No. RIM/2960 drawn by R. UKO, a licenced Surveyor.
2. A declaration that any contract or conveyance of whatever nature entered into by the defendants and any person or body corporate and touching on the said piece of land situate along RCC Road, Ekpene Ukpa, Eket without the prior consent and authority of the plaintiffs is void, illegal and or no effect whatsoever.
3. A PERPETUAL INJUNCTION restraining the Defendants by themselves, their agents, servants, privies associates hireling from trespassing in howsoever way into or tampering or dealing in any manner whatsoever with the plaintiff’s landed property lying and situate along RCC Road, Ekpene Ukpa, Eket.
4. An order of Court mandating the Defendants to remove any materials or objects they had carried into and dumped or fixed on the plaintiffs land lying and situate along RCC road, Ekpene Ukpa, Eket.
5. 5 million damages for trespassing into and waste on the piece or parcel of land lying and situate along RCC Road, Ekpene Ukpa, Eket.
After a full trial, the trial Judge delivered his considered judgment on 26th April, 2010 and held inter-alia granting the claims of the plaintiff/Respondent as follows:-
“1. I declare that the plaintiffs are the deemed holders of the Statutory Right of occupancy in respect of all that piece or parcel of land lying situate along Atabong/Eket Road (now RCC Road) Ekpene Ukpa, more particularly described and delineated on survey plan No. RIM/2960 drawn by R. Uko, a licensed Surveyor.
2. I declare that any contract or conveyance of whatever nature entered into by the defendants and any person or body corporate and touching the said piece of land in dispute without the prior consent and authority of the plaintiffs is void, illegal and of no effect whatsoever.
3. An order or perpetual injunction is hereby made restraining defendants by themselves, their agents, servants, privies, and associates from trespassing onto or tempering or dealing in any manner whatsoever with the plaintiff’s land lying and situate along Atabong Road (now RCC road, Ekpene Ukpa), Eket.
4. It is ordered that the defendants shall remove any materials or objects they carried into or dumped or fixed on the plaintiffs, said land.
5. The defendants shall jointly and severally pay N3m (Three Million Naira to the plaintiffs as damages for trespassing onto and waste on the plaintiffs, said land.
Being dissatisfied, the defendant as Appellant filed a notice and 8 Grounds of Appeal. The Appellants filed their appellants, amended brief on 6th July, 2011. Also filed was the Appellant’s Reply brief on the 18th April, 2012 and deemed properly filed and served on 25th April, 2012. The Appellants articulated 3 issues for determination as follows:-
1. Whether the trial court was right in relying on the further Amended statement of Claim and the evidence thereof in awarding Plaintiff’s claim with N3 million damages notwithstanding its non-compliance with the provisions of order 26 Rules 2, 3, 4 and 6 of the High Court (Civil procedure) rules of Akwa Ibom State, 1989 (the rules applicable at the time this action was instituted).
2. Whether having regards to the evidence of the parties led before the trial court coupled with the exhibits tendered, the judgment made in favour of the Plaintiff is not against the weight of evidence as to who proved a better title to the land in dispute.
3. Whether in view of the evidence of DW 1 and DW 2, the trial court was right to hold that the evidence regarding the dealings of the 3rd Defendant and his mother with the land in dispute remained largely unchallenged.
The Respondent filed a Respondent, brief on 21st December, 2011 and deemed properly filed and served on 25th April, 2012. In it, he also articulated 3 issues for determination as follows:-
“Whether the trial court was right in relying on the further amended statement of claim and evidence thereof in awarding the Plaintiff’s claim?
Whether having regards to the evidence of the parties before the trial court including the exhibits rendered, the learned trial Judge was right to have given judgment in favour of the plaintiffs?
Whether in view of the evidence of DW 1 and DW 2, the Trial Court was right to hold that the evidence regarding the dealings of the 3rd Defendant and his mother with the land in dispute remained largely unchallenged?
The issues of both parties are basically me same. However, I will utilize the issues as articulated by the Appellant in the determination of this Appeal.
ISSUE 1
The learned counsel for the Appellants submitted that instead of the Respondent filing an “amended statement of claim”, the Respondent filed a further amended statement of claim without leave. Counsel referred the Court to 026R 2, 3, 4, & 6 of the Akwa Ibom State High Court (civil Procedure) Rules 1989 and submitted that the Court granted the Respondent leave to file an ‘amended statement of claim, instead the Respondent filed a ‘further amended statement of claim’.
Counsel referred the court to the cases of Olaore v. Oke (1987) 7 NWLR pt 67 pg 769, Chinweze v. Masi (1989) 1 NWLR pt 97 pg 254 where the Supreme Court held that “rules of court are made for the benefit of the court and the parties in order to facilitate the process of adjudication and they must, therefore, be followed by counsel” See also John vs. Blakk (1988) 1 NWLR pt 72 pg 648.
Counsel argued further, that the Respondent filed a Further Amended Statement of Claim instead of Amended Statement of Claim and as such breached the court orders. Learned counsel insisted that as it is, there is no valid statement of claim for the court to work on. Counsel, therefore, urged the court to hold that the lower court was in error using, and relying on the Further Amended Statement of Claim. Counsel urged the court to resolve this issue against the Respondent.
In Response, the learned counsel to the Respondent submitted that, the learned trial Judge granted the Respondent leave to file their Amended Statement of Claim within 14 days. This the Respondents complied with but inadvertently framed it Further Amended Statement of Claim. The learned counsel to the Respondent submitted that the error was just a failure to comply as to form which is a mere technicality which 25 R 28 Akwa Ibom State High Court (Civil Procedure) Rules 1989 allows the Court to over look. 0 25 R 28 provides:
“No technical objection shall he raised to any pleading on the ground of any alleged want of form Dapialong V. Dariye (2007) 8 NWLR pt 1036 pg 332
Where Onnoghen JSC held that-
“The reign of technical justice is over and on the throne now sits substantial justice. Long may you reign substantial justice”.
Counsel also referred to the case of UTC (Nig) Ltd. V. Palotei (1989) 2 NWLR pt 103 pg 244 where Oputa JSC held as follows:
“It is a well established principle that the object of courts is to decide the rights of the parties and not to destroy them for mistakes they make in the conduct of their case by deciding otherwise than in accordance with their right”
Learned counsel accepted that it was inadvertence on their part in the heading of their process but the Appellant’s were not deceived and have thereafter filed their own amended statement of defence in answer to the so called “further amended Respondent’s statement of claim”. By so doing the Appellants have taken fresh steps in the case and actively participated in the hearing and trial up till judgment.
Counsel submitted that the Appellants can no longer complain about the document and the irregularity. Counsel urged the court to resolve this issue for the Respondents.
The failure of the Respondent to caption his process correctly as per the order given by the trial court is a matter of procedural law. There are indeed two types of jurisdiction, procedural and substantive. Whilst a litigant can waive that of procedural law, he cannot waive that of substantive law. A litigant may submit to the procedural jurisdiction of the court. The learned trial Judge adequately dealt with this issue in his judgment where he held as follows:
“In this case the defendants’ counsel is not saying that the further amended statement of claim filed on 21st November, 2001 overreached the defendants. His contention is that it did not accord with the terms of the order of the court. Having perused the further amended statement of claim and the records of the court leading to the order for the amendment, I am unable to agree with the defendants’ learned counsel. In any case it is on record that the further amended, statement of claim was filed on 21st November 2001 while the defendants, motion on notice to amend their statement of defence was not filed by the defendants until 24th April, 2002, almost five months after the further amended statement of claim had been filed on 21st November, 2001. This means that the defendants and their counsel were in possession of the further amended statement of claim before they applied to amend their statement of defence. Five months represented a long enough time for them to have noticed the incompetency of the further amended statement of claim. If they noticed it, they did nothing about it before or after their motion was later heard on 27th June, 2002 and granted. They then proceeded to file their amended statement of defence on 1st July, 2002. In their amended statement of defence vis-a-vis the further amended statement of claim, the defendants joined issues with the plaintiffs. It was on the basis of the pleadings and the issues joined that the case proceeded to hearing on 29th October, 2002 when the plaintiffs opened their case. The defendants and their counsel actively took part in the hearing to the end. The point seriously made here is that it is too late at this address stage for the defendants’ counsel to contend that the further amended statement of claim is incompetent. To accept or act on that contention is to encourage parties and their counsel to set traps and lay in ambush for the opposing parties and spring surprise on them.”
An order of Court is one which directs a party to a case to do something in relation to the case. Chia vs. Uma (1998) 7 NWLR Pt.556 page 95; Below vs. Fayose (1999) 11 NWLR Pt.627 page 510.
In the instant case, the trial Judge made an order granting the Respondent leave to amend his Statement of Claim. That, the amended Statement of Claim was wrongly captioned, “Further Amended statement of claim” is a procedural defect that can be waived by any or both parties. Where the Appellants, knowing of this defect, had taken fresh steps in the case, would be taken that they have waived their rights. The Respondent filed the so called Further Amended Statement of Claim on 21st day of November, 2001. The Appellants amended their own statement of defence in answer to the wrongly captioned statement of claim on 24th day of April, 2002. The Appellants were neither deceived nor ambushed when he replied. Instead, issues were, therefore, joined and the trial started and concluded. None of the parties was under any illusion about the issues.
The Appellants definitely took many fresh steps after discovering the error. It would be taken that they have waived their rights and, therefore, cannot complain about it. This error is procedural and may be waived by any of the parties. The trial Judge was right in his judgment to hold that the Appellants was neither ambushed nor overreached by the so called “Further Amended Statement of Claim.” The Appellants have not suffered any hardship and there was no miscarriage of justice to either of the party. There being no miscarriage of justice, this issue is resolved against the Appellants.
ISSUE 2:
The learned Counsel to the Appellants stated that the Respondent’s survey plan Exhibit A, was made in 1975. Exhibit B, the Deed of Conveyance, was made in 3rd February, 1977 and registered in 2001, during the pendency of this suit. Counsel also stated that the area of the land of the Respondent is 554.67 Square yards, located in Ekpene Ukpa Eket.
The learned Counsel to the Appellants submitted also that the Appellants’ landed property Exhibit E, the Survey Plan was made on 6th day of June, 1998 and located along RCC Road Ekpene Ukpa Eket with an area of 288.272 Square metres. Counsel urged the court to find that both Exhibit A and E are two different properties, both in size and location. Counsel referred the Court to ID (1) the ‘Agreement of Land Sale’ and the case of Agbo vs. State (2006) 6 NWLR Pt.977 page 545 and Sapo & Anor v. Sunmonu (2010) 3-5 Pt. 11 page 130.
Learned Counsel urged the Court to hold that the Respondent could not properly identify her land both from her evidence and the exhibits tendered, See Nwabuoku vs. Onwondi (2002) 2 NWLR pt.755 page 558. Exhibit B being made during the pendency of this suit in the trial Court, Counsel urged the Court to hold that failure to properly identify the land in dispute is fatal to the Respondent’s case.
In reply, the learned Counsel to the Respondent submitted that the Respondent bought the land in 1974 and was given a Receipt ID (1) acknowledging the transaction with a promise to prepare a formal document to that effect. In 1975, a Survey plan, Exhibit A, was made and a deed of conveyance, Exhibit B, signed by the parties in 1977 to perfect their legal title to the land. All these have bestowed on the Respondent both equitable and legal title to the land in dispute. Counsel submitted that the Respondent gave oral evidence that the land in dispute was in Ekpene Ukpa. So also the Deed of conveyance before the urbanization of the area and consequently the creation of new streets and roads. Counsel urged the Court to hold that the Respondent has proved her title to the land in dispute in more ways than one. It is only the Respondent who has a legal document to the land. The Respondent has also exercised acts of ownership on the land by surveying it, giving it out to their employee who farmed on the land until her demise. The Respondent took action when the Appellants encroached on the land. She took steps to stop them. The Respondent made contacts with the Appellants, reported both to the Traditional Ruler and the Police and finally instituted this suit in court. Counsel urged the court to resolve this issue for the Respondent.
There are five ways of Proving or establishing title to or ownership of land. These are by traditional evidence; production of documents of title duly authenticated in the sense that their due execution must be proved; by positive acts of ownership extending over a sufficient length of time; by acts of long possession and enjoyment of the land; by proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land, would in addition, be the owner of the land in dispute. The law is that the establishment of one of the five ways is sufficient proof of ownership. Nkado vs. Obiano (1997) 5 NWLR Pt.503 page 31 at 34, Nkwo vs. Iboe (1998) 7 NWLR Pt.558 Page 354.
The Respondent in proving their title to the disputed land tendered Exhibit A, the Survey Plan, and Exhibit B, the Deed of conveyance. The sale receipt was identified as ID (1) and forms part of the Court’s records. The Respondent, by oral and documentary evidence, laid claim to the land in dispute.
The law is that “where” a party has satisfied the Court as to his title to land in dispute, the court need not inquire into the title of his predecessor in title. The party does not need to prove the title of his vendors except where it has become an issue. Ajibulu vs. Ajayi (2004) 11 NWLR Pt.885 page 458; Dosunmu vs. Joto (1987) 4 NWLR Pt.65 page 297.
The Respondent relied on her Survey Plan Exhibit A and the deed of lease Exhibit B and tendered them in proof of her title to the land in dispute. Uzochukwu v. Eri (1997) 7 NWLR Pt.514 Page 535; Dokubo v. Omoni (1999) 8 NWLR Pt.616 page 647.
One of the prerequisites of proving title to land is that the party claiming title must ascertain the size of the parcel of land he is claiming: that is its size and the boundaries. Faagunwa v. Adebi (2004) 17 NWLR Pt. 903 page 544.
The Respondent tendered the survey plan (Exhibit A) that had the size and location of the land. The recitals in the deed of conveyance also matched that in the survey plan. These were fortified by the Respondent’s oral evidence.
The Appellants in proof of their title tendered a deed of assignment dated 9th day of June, 1998. They also tendered as Exhibit E & F, two survey plans dated 1998 and 2002 respectively.
Obviously, the Respondent transactions on the land ended in 1974 and 1977 about 22 Years before the Appellants had any transactions on the land. The Appellants were accosted as soon as the Respondent noticed an encroachment on the land. The Respondent approached the Appellants and a letter was written to the Appellants by the Respondent’s Solicitors. A report was made to the traditional Ruler who placed a traditional injunction. The Respondent reported to the police twice and as a final resort instituted this action in the High Court of Akwa Ibom State.
There is no doubt that the Respondent acquired this land about 22 years before the Appellants. The Respondent was given a receipt (ID (1)) for the transaction in 1974 with a promise to perfect the title later. This ID (1) is evidence that there was a sale of land between the owner and the Respondent.
The payment of the purchase price by a party for a Plaintiff automatically confers a right on the party which right is enforceable unless otherwise determined. E.F.P. Co. Ltd v. NDIC (2007) pt 1039 page 216.

A purchase of land can be proved by a purchase receipt or by an agreement of sale, or by any fact that shows such a transaction did take place. Adepate v. Babatunde (2002) 4 NWLR pt 756 page 99.
A purchase receipt is evidence that there was an agreement for sale of land and that the consideration for sale was paid by the purchaser Aminu v. Ogunyebi (2004) 10 NWLR pt 882 page 457.
A Survey plan was made in 1975, Exhibit A, showing the beacons, the size of the land and the owners. In 1977, a formal deed of conveyance was made with all the necessary recitals and particulars. The Respondent had been in possession of this land and showing acts of possession by allowing one of their employees farm on the land until her demise. The Respondent proved all the basic ingredients for the declaration of title she sought from the Court. I, therefore, hold that the Respondent was entitled to be declared the owner of the disputed land. The second issue is, therefore, resolved against the Appellants in favour of the Respondent.
ISSUE 3:
The learned counsel on this issue catalogued all the adjournments in this case. In the final analysis he submitted that the evidence of the 3rd defendant was expunged because he was not re-examined. In sum, he submitted that the Appellants did not have a fair hearing as enshrined in the constitution. Newswatch Communication Ltd. vs. Atta (2006) 12 NWLR Pt.993 page 144. Counsel urged the court to hold that a miscarriage of justice had occurred and that the court should allow this appeal.
In response, the Respondent’s counsel stated that the 3rd Defendant gave his evidence in chief on 16th day of June, 2006 and for all the many adjournments for 3 years he never surfaced in court until 17th June, 2009 when the Respondent’s counsel applied that his evidence in chief be expunged. It should be noted that the Appellants, Counsel stated in his own words.
“Regrettably I can no longer defend the absence of this witness.”
The learned counsel to the Respondent had submitted that, the Respondent had pleaded and given in evidence that the land in dispute was hers. Also that 3rd defendant’s mum was allowed to farm on the land until her death to the knowledge of the 3rd defendants. After the 3rd defendant’s mum died, he was mandated to look after the said land. The 3rd defendant later asked for permission from the Respondent to sell a part of the land to the 2nd defendant to enable him has access to the Road. This was refused but the 3rd defendant still went ahead and sold the land to the defendants.
Learned counsel submitted that these pieces of evidence were never controverted in the Appellants’ pleadings nor challenged during cross examination of the Respondent.
Finally, the learned Counsel for the Respondent urged the court to disregard the allegation that Appellants where not given a fair trial because, the evidence of the 3rd defendant in chief was expunged. Counsel urged the court to resolve this issue on behalf of the Respondent.
This issue is whether the Appellants were given a fair trial as the Appellants complained that the evidence in chief of the 3rd defendant was expunged. Was the court right in expunging the 3rd defendant’s evidence after adjourning several times for him to be cross-examined? It was the Appellants who failed to produce the 3rd defendant for cross-examination since he was vital to them to clear the allegations or controvert the evidence of the Respondent. It is the Appellants’ duty to produce the 3rd defendant if his evidence may help in the determination of that case. Imhanria v. Nigeria Army (2007) 14 NWLR pt.1053 page 76; Framo (Nig.) Ltd. v. Daodu (1993) 3 NWLR pt.281 page 372; State vs. Nnolim (1994) 5 NWLR Pt.345 page 394.
I agree that Cross-examination of a witness is very important to the party cross-examining. The purpose is to discredit a witness and demolish the case of the opposing party. It is also designed to put across the case of the party cross-examining the witness. Olomosola v. Oloriawo (2002) 2 NWLR Pt.750 page 113.

A trial Court before which evidence is adduced by the parties in a civil case should first put the totality of the evidence of both parties on an imaginary scale and 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, before the court would come to a decision as to which evidence it rejects. In determining which is heavier, the trial Court should have regard to the admissibility, relevance, credibility and conclusiveness of the evidence adduced by the parties. Egba vs. Appah (2005) 10 NWLR Pt.934 page 464; Olaleye vs. Adefumo (2005) 10 NWLR Pt.933 page 429; Fagbenro vs. Arobadi (2006) 7 NWLR Pt.978 page 174.
If the Appellant perceived that the 3rd defendant was a vital witness, they would have made sure he was available to be cross-examined. The Court after several adjournments expunged his evidence in chief. The 3rd defendant is even a party to the proceedings and understood the importance of his evidence since he was alleged to have been the one who sold the land to the 4th defendant.
The Court cannot wait indefinitely for the 3rd defendant to surface at anytime he pleased to be cross-examined. See the case of Mohammed v. Kpalei (2001) 6 NWLR pt 710 pg 700. Where a person fails to come to court can it be said that he was not given a fair hearing. In trials in a first instance court, what the trial Judge owes a litigant is to inform him of the date of the trial. This means that Hearing Notice must be issued to parties who are absent in Court informing them of the next adjourned date. Where such a notice is given to a party and he absents himself from court without excuse, the court does not wait for him indefinitely like in this case. Several adjournments was given at the instance of the Appellants. In fact, the Appellants’ counsel in his own words said in frustration
“Regrettably I can no longer defend the absence of this witness DW 3.”
This statement meant that he had defended hrs absence for a long time and can no longer do so.
Can the Appellants’ counsel now turn around to allege that the Appellants were not given a fair trial because the evidence in chief of the 3rd defendant was expunged?
The right of fair hearing is a constitutional right enshrined in section 36 of the 1999 Constitution. The right cannot be waived or statutorily taken away. Also, trial Courts are enjoined to ensure that hearing notices are issued on parties before embarking on the trial of any matter before them. Bamgboye v. UNILORIN (1999) 10 NWLR pt.622 page 290; Awoniyi vs. The Registered Trustees of the Rosicrucian order, Amorc (Nig,) (2000) 6 SC pt 1 page 103; Araka v. Ejeagwu (2001) 5 WRN page 1.

In determining whether a party was accorded fair hearing, the courts have held that “the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation; justice has been done in the case. Such bystander would be guided by two universally recognized principles. First, were the two sides to the case heard so as to fulfill the principle of audi alteram partem? Secondly, was the judge personally interested in the issue before him, thus violating the principle of nemo judex in causa sua? Ekechukwu v. Onwoka (2006) 2 NWLR Pt. 963 page 151.
The question one would ask in this type of case is whether the trial was conducted according to all the legal Rules formulated to ensure that justice is done to the parties. This requires the observance of the twin pillars of the Rules of natural justice which are audi alteram partem and nemo judex in causa sua. Eshenake v. Gbinije (2006) 1 NWLR Pt.961 Page 228.
In the present case, both pillars were observed. Both the Respondent and Appellants were heard. The Appellants cannot complain where they were given a chance to put in their witnesses without let or hindrance. Where the 3rd defendant refused to or neglected to come to Court to be cross-examined, the blame cannot be placed on the court. The allegation was not that the trial Judge descended into the arena. It is, therefore, beyond reason for the Appellants to say that the Court did not give the Appellants fair hearing.
It is trite law that once there is a breach of fair hearing, the whole proceedings in the course of which the breach occurred and the decision arrived at by the court becomes a nullity: ANPP v. INEC (2004) 7 NWLR Pt.871 page 16; All Peoples Party v. Ogunsola (2002) 5 NWLR Pt.761 page 484; BON Ltd. vs. Adegoke (2006) 10 NWLR Pt.983 page 339.
With the above, I hold that the Appellants were given fair hearing. Issue 3 is also resolved against the Appellants. In the final analysis, all the 3 issues articulated by the Appellants are all resolved against them. The appeal is unmeritorious and, therefore, dismissed. The Judgment of the trial Court is hereby affirmed.
Cost of N50, 000.00 is awarded the Respondent against the Appellants.

MOHAMMED LAWAL GARBA, J.C.A.: I have read the lead judgment delivered by my learned brother, Uzo I. Ndukwe-Anyanwu, JCA, in this appeal before today. The issues submitted for decision in the appeal have been comprehensively considered and lucidly resolved by my learned brother and I am in complete agreement with all the views expressed on the issues as well as the resolution thereof.
For all the reasons set out in the lead judgment which I adopt, this appeal is undoubtedly unmeritorious and deserves an order of dismissal. I join in dismissing it for wanting in merit and abide by the order on costs made in the lead judgment.

ISAIAH OLUFEMI AKEJU, J.C.A.: I read before now the judgment of my learned brother, Uzo I. Ndukwe-Anyanwu, JCA just delivered. The issues in the appeal have been well treated and determined. I adopt the reasoning in the judgment as mine and I agree that the appeal lacks merit, and I dismiss it with costs as in the lead judgment.

Appearances

ALBERT BEN ESQ.For Appellant

AND

E. O. Udoh ESQ.For Respondent