NATIONAL UNION OF CIVIL ENGINEERING CONSTRUCTION FURNITURE & WOOD WORKERS V. UNITED BANK FOR AFRICA PLC & ORS. (2010)

NATIONAL UNION OF CIVIL ENGINEERING CONSTRUCTION FURNITURE & WOOD WORKERS V. UNITED BANK FOR AFRICA PLC & ORS.

(2010)LCN/3739(CA)

In The Court of Appeal of Nigeria

On Monday, the 26th day of April, 2010

CA/L/411/08

RATIO

FAIR HEARING: EFFECT OF A BREACH OF THE RULE OF FAIR HEARING

COURT: DUTY OF COURT TO EVALUATE EVIDENCE BEFORE IT

As stated in Ajileye vs. Falenyode (1998) 4 NWLR (pt 545) 184, a trial judge has the right within the limits of the case before him to explore all angles and aspects of the facts, look at them with an analytical mind, express his opinion and make his findings based on the evidence before him and I may add expound on the law. PER RAPHAEL CHIKWE AGBO, J.C.A.

FAIR HEARING: THE CONCEPT OF FAIR HEARING

The concept of fair hearing is of great antiquity and universal. The right to a fair hearing is a very essential right for a person to secure justice and fair hearing connotes a fair trial. The right of address by counsel when a court raises an issue suo motu is an important aspect of the right to fair hearing. When the court fails to give the parties the opportunity to be heard before Judgment or Ruling as in the instance case any decision arrived at amounts to the denial of fair hearing rendering the proceedings null and void. See Ibom v. Gaji (1997) 6 N.W.L.R. (pt.509) 526 at 527.528 S.C. PER REGINA OBIAGELI NWODO, J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria

Between

NATIONAL UNION OF CIVIL ENGINEERING CONSTRUCTION FURNITURE & WOOD WORKERS Appellant(s)

AND

1. UNITED BANK FOR AFRICA PLC
2. PRINCE ADE BABINGTON-ASHAYA
(RECEIVER/MANAGER, PIEDMONT PLYWOODS NIG. LTD.)
3. PIEDMONT PLYWOODS NIGERIA LTD
(IN-RECEIVERSHIP)
4. CORPORATE AFFAIRS COMMISSION Respondent(s)

RAPHAEL CHIKWE AGBO, J.C.A. (Delivering the Leading Judgment): The appellant, pursuant to Order 40 of the Federal High Court (Civil Procedure) Rules 2000 as plaintiff took out an originating summons at the Lagos Division of the Federal High Court against the respondents as defendants in Suit No. FHC/L/CS/684/2007 seeking the following prayers:
‘1. A declaration that the plaintiff is a person interested within S. 389(1) of CAMA and entitled to make an application the court for appointment of a Receiver/Manager of the property and assets of the 3rd defendant.
2. A declaration that the 1st defendant is not a holder of a lawful debenture within the meaning of S.209 (1) CAMA as such is not entitled to realize its purported security purportedly created by a Deed of Debenture dated 17th January, 1984 stamped to cover N4 Million and purportedly unstamped on July 2004, to cover N280 Million.
3. A declaration that the Deed of Floating Debenture executed between the 1st and 3rd defendants dated 17th day of January, 1984 stamped to cover N4 Million and purported unstamped on 7th July, 2004 to cover N280 Million is a fraud on the 3rd defendant as such not registrable by the 4th defendant and enforceable against the 3rd defendant.
4. A declaration that the purported registration by the 4th defendant of the Deed of Floating Debenture between the 1st and 3rd defendants dated 17th day of January, 1984 purportedly unstamped on 7th day of July, 2004 to cover N280 Million is irregular, illegal, null and void and unenforceable in that it was obtained by fraud.
5. A declaration that the purported appointment of the 2nd defendant by the 1st defendant as Receiver/Manager of the property and assets of the 3rd defendant pursuant to the Deed of Floating Debenture purported executed by the parties dated 17th January, 1984 and purported unstamped to cover N280 Million on 7th July, 2004 is not valid but illegal null and void.
6. A declaration that in any event, the 2nd defendant as Receiver/Manager of the property and assets of the 3rd defendant is obligated to observe and comply with the provisions of S.390(2) of CAMA by way of preserving the assets of the 3rd defendant for the benefit of all the persons interested within S.389(1) of CAMA.
7. An order nullifying the purported appointment of the 2nd defendant by the 1st defendant as Receiver/Manager of the 3rd defendant.
8. A declaration that any sale and receipt of the assets including money or sums of money of the 3rd defendant by the 1st and 2nd defendants in pursuance of or purported execution of the power under the Deed of Debenture dated 17th January, 1984 as purported unstamped to cover N280 Million is wrongful and illegal as such recoverable by the 3rd defendant.
9. An order of injunction restraining the 1st and 2nd defendants by themselves their agents, servants and or privies from selling or dealing with the property and assets of the 3rd defendant in any manner whatsoever.
10. An order for account by the 1st and 2nd defendants jointly and severally of all money or monies received from the sale, lease, charge or in any way dealing with the assets and or property of the 3rd defendant since 2005.
11. An order of appointment where necessary, by the court of a Receiver/Manager of the property and assets of the 3rd defendant under the supervision or directions of the court.”
As required by the rules the appellant deposed to and annexed to the originating summons a 25 paragraph affidavit in support. Upon service on them of the originating summons the 1st – 3rd defendants, now 1st – 3rd respondents in this appeal filed a notice of preliminary objection praying as follows:
“NOTICE IS HEREBY GIVEN that the 1st, 2nd and 3rd defendants shall on the…….. day of…….., 2007 urge this Honourable Court to strike out this suit on the ground that this Honourable Court has no power and/or jurisdiction to determine this suit as presently constituted.
GROUNDS
1. The plaintiff has no locus standi within the meaning of Section 6(6)(B) of the Constitution of the Federal Republic of Nigeria and the decision of the Constitutional Supreme Court of Nigeria in the case of Adesanya vs. President of F.R.N. (1981) 5 SC 112 to institute this action and claim the reliefs endorsed therein.
2. That plaintiff does not come within the provisions of Section 299 of the Companies and Allied Matters Act, 1990 to commence this suit and seek the reliefs contained in same.
3. By the combination of (1) and (2) above, the plaintiff is not competent to bring and maintain this suit.”
The preliminary objection was accompanied by an affidavit in support which bears reproduction below:
“I, Peter Ojih, male, Christian, Nigerian National of No. 81, Foresythe Street, 1st Floor, Lafiaji Lagos do hereby make oath and state as follows:
1. I am the Senior Litigation Officer in the law Firm of Joseph Nwobike & Co., Counsel to the 1st – 3rd defendants in this suit by reason of which I am conversant with the facts of this case.
2. The facts contained in this affidavit were derived as a result of my official duties and information derived from persons and circumstances specifically stated hereunder.
3. I know that the 2nd defendant was appointed by the 1st defendant as the Receiver/Manager over the assets and undertakings of the 3rd defendant pursuant to the Floating Debenture dated 17th January, 1984.
4. I know that the plaintiff has no interest in the 3rd defendant and is neither a shareholder not a creditor of the 3rd defendant.
5. I have been informed by the 2nd defendant in our office today and I verily believe him that neither the 3rd defendant not himself and the directors of the 3rd defendant instructed or authorized the plaintiff to bring this action.
6. I know that the plaintiff’s interest does not exist in the 3rd defendant and that none is adversely affected by the acts of the 1st and or the 2nd defendants.
7. I have been informed by Ugochukwu Okwesili, Esq. of the Legal Services Department of the 1st defendant today in our office and I verily believe him to be true that the plaintiff is not a party to all the contracts and transactions between the 1st, 2nd and 3rd defendants; and that none was made in its favour.
8. That it will be in the best interest of justice if this suit is struck out since the plaintiff has not shown any interest in the 3rd defendant.
9. And I make this oath in good faith and in accordance with the provisions of the Oath Act, 1990,”
The appellant deposed to a counter-affidavit reproduced hereunder:-
“I, Bright Osabuogbe, MALE, Christian Nigerian Citizen of No. 68 Ipaja New Road Alimosho Lagos State do hereby make oath and state as follows:
1. That I am Assistant General Secretary of the plaintiff in this suit and by reason thereof I am very conversant with the facts of this.
2. That I swear to the facts in this counter-affidavit of my personal knowledge and belief as well as facts furnished me by persons hereinafter named.
3. That I have seen the notice of preliminary objection filed by 1st, 2nd and 3rd defendants dated 13th August, 2007 with the supporting affidavit and I verily believe there is no truth in the averments thereof particularly paragraphs 4, 6, 8 and 9 thereof.
4. That contrary to paragraphs 4, 5, 7 8 and 9 of the supporting affidavit, I verily believe that the plaintiff has disclosed sufficient interest upon the supporting affidavit to the originating summons content of which I hereby affirm as true and correct as such the plaintiff does not need the consent or approval of the 3rd defendant to institute this action.
5. That further to paragraph 4 above, the applicants’ preliminary objection with the supporting affidavit is in bad faith and I verily believe that it will be against the interest of justice to grant the applicants’ prayer.
6. That I am also advised by Johnson O. Esezoobo of Counsel and I verily believe that to strike out the suit will offend against State policy, under Cap. 11 of the Constitution in that it will amount to a denial of the plaintiff’s right of access to court under S.36 (1) of the 1999 Constitution.
7. That I swear to this counter-affidavit in good faith believing the content to be true and correct and in accordance with the Oaths Act of Nigeria.
After taking oral argument from the parties, the trial judge in a considered ruling, adjudged as follows:
“This action is misconceived in the present form and must be dismissed.”
Dissatisfied with this ruling the appellant filed this appeal. Its notice of appeal contains nine grounds to wit:
“1. The learned trial judge erred in law and exceeded the jurisdiction of the court when he found that the action “is misconceived and must be dismissed” contrary to the Supreme Court decision in Lakanmi vs. Adene (2003) 4 S.C (pt 11) 92 at 96 (2003) 10 N.W.L.R. (pt. 828) 353 thus:
“Where however a court is satisfied that it has no jurisdiction to try a matter, for any reason whatsoever, the matter should there and then be struck out” thereby making the proceeding and decision a nullity.
2. The learned trial judge erred in law when he failed to determine and hold that the appellant has locus standi to institute the action upon his various finds inter alia that these ‘averments are all uncontradicted’ but proceeded suo motu to raise the issue of fraud and challenge the form of action and hold that ‘This action is misconceived in the present form and must be dismissed’.
The learned trial judge erred in law and exceeded the jurisdiction of the court when he went beyond the uncontroverted affidavit in support of the originating summons to consider the issue of existence or otherwise of fraud in the attachments to the affidavit and hold that the court would not proceed to pronounce on the existence or otherwise of fraud upon an originating summons thereby deciding the merits of the substantive suit in violation of the appellant’s right to a fair hearing.
4. The learned trial judge erred in law when he raised suo motu as to the locus standi of the appellant ‘to bring the form of action, an originating summons’ and without inviting the parties to address him on the point, held that ‘all the facts are not available for a resolution of the issues raised in the form of originating summons’ thereby going into the merit of the substantive case.
5. The learned trial judge erred in law when he held the appellant’s affidavit evidence with the attachments as ‘incomplete information that may be intriguing but inconclusive of themselves’ when the evaluation of evidence was not a matter before the court at that state.
6. The learned trial judge erred in law and exceeded the jurisdiction of the court when he suo motu considered the substantive suit on a different provision Under S.315 CAMA and held that ‘An originating motion inviting an order for investigation pursuant to S.315 CAMA would be the tool to use in aiming for a determination of the fraud in the affairs of a company when the appellant’s case before the court was instituted under Sections 209, 389(1) and 390 (2) CAMA’.
7. The learned trial judge erred in law when he suo motu raised the issue of form of action and held that the form of action would not be originating summons pursuant to ‘Order 40 of the Federal High Court Civil Procedure Rules” and that “stakeholders who (sic) feels threatened, aggrieved or short-changed can come by way of an originating motion (under) R. 3 Companies proceedings Rules 1992’.
8. The learned trial judge misdirected himself in law and on the facts when after adjudging the appellant a ‘creditor’ but held that the question of fraudulent loans ‘would primarily be a matter for other stakeholders’.
9. The learned trial judge misdirected himself in law when he considered the merit and existence of fraud in the substantive suit and held that ‘notwithstanding that there is no counter affidavit controverting any of the averments in the affidavit in support, the court would not proceed to pronounce on the existence or otherwise of fraud upon an originating summons’.
From these grounds of appeal the appellant distilled the following issues for determination: –
“1. Whether the learned trial judge was right and did not exceed the jurisdiction of the court when he held that the action ‘is misconceived and must be dismissed’ and subsequently dismissed the same and if the answer is in the affirmative, whether the proceeding is not rendered a nullity thereby. This relates to ground one of the grounds of appeal.
2. Whether the learned trial judge was not in error when he failed to determine and hold that the appellant had locus standi to institute the action after finding that its averments were uncontroverted and yet proceeded to hold that it must be dismissed. This relates to ground two of the grounds of appeal.
3. Whether the learned trial judge did not err and indeed exceed the jurisdiction of the court, when he suo motu raised issue of locus standi of the appellant to bring the forms of action and went beyond the uncontroverted affidavit in support of the originating summons to consider issue of existence or otherwise of fraud raised by the appellant without inviting the parties to address on it. This issue relates to grounds three, four, six and seven of the grounds of appeal.
4. Whether the learned trial judge did not misdirect himself in fact and in Law when he held that the question of fraudulent loans is primarily a matter for other stakeholders and that notwithstanding that there is no counter-affidavit, the court would not proceed to pronounce on the existence or otherwise of fraud upon an originating summons” when that was not the issue before the court. This relates to grounds eight and nine of the grounds of appeal.
5. Whether respondents’ notice of the 1st, 3rd respondents is not incompetent and otherwise an abuse of the process of court or whether the decision of the court below can be affirmed on other grounds as in the notice. This relates to the respondents’ notice of 21st February, 2008.”
The 1st – 3rd respondents on the other hand distilled 4 issues for determination to wit-
“4.01. The 1st – 3rd respondents (otherwise herein referred to as ‘the respondents’) submits that, in view of the grounds of appeal and the grounds contained in the respondents’ notice, the following issues calls for determination in this appeal.
4.02. Whether the respondents’ notice dated 21st February, 2008 is competent for the purpose of determining the issues in this appeal.
4.03. Whether or not the appellant has the locus standi to commence the suit and seek the reliefs endorsed on the originating summons.
4.04. Whether, this suit ought to have been commenced by way of an originating summons under Order 40 Rules 1, 2 and 6 of the Federal High Court, Rules 2
In the interim, the 1st – 3rd respondents had filed a respondents’ notice at the registry of the court below which notice reads thus:
“TAKE NOTICE that, upon the hearing of the above appeal the 1st, 2nd, and 3rd respondents intends to contend that the decision of the court below dated the 28th day of January, 2008 shall be affirmed on grounds other than those relied on by the court below.
AND TAKE FURTHER NOTICE that the grounds on which the respondents intends to rely are as follows:
1. The plaintiff /appellant has no locus standi without the meaning of Section 6(6) (B) of the Constitution of the Federal Republic of Nigeria and the decision of the Constitutional Supreme Court of Nigeria in the case of Adesanya vs. President of Federal Republic of Nigeria (1981) 5 S.C.p 112 to institute this action and claim the reliefs endorsed on the originating summons dated 23rd day of July, 2007.
2. The plaintiff/appellant, in view of the substance of their case and reliefs sought from the court below, does not come within the provisions of Section 299 or any other provisions of the Companies and Allied Matters Act, 1990 to commence this suit and seek the reliefs contained in same.
3. By the combination of (1) and (2) above, the plaintiff/appellant is not competent to bring and maintain this suit.
4. In view of (1), (2) and (3) above, the Federal High Court does not have the jurisdiction to entertain this suit,”
The notice is brought pursuant to Order 9 Rule 2. The grounds of this notice is a complete reharsh of the grounds of the preliminary objection the ruling of which is the subject matter of this appeal. To fully appreciate this notice and this appeal, it is necessary to reproduce in full the offending ruling.
We have here for consideration and determination a notice of preliminary objection questioning the locus of the plaintiff herein, suggesting the suit is incompetent at its instance thus negating the court’s jurisdiction in the matter.
The plaintiff took out an originating summons dated 23rd July, 2007 and filed 24th July, 2007.
The affidavit in support deposed to by one Bright Osabuogbe, Assistant General Secretary of the plaintiff deposed that plaintiff ‘is a trade union established by law to look after affairs and welfare of workers in the Civil Engineering Construction, Furniture and Wood Industry in Nigeria further to which the plaintiff duly organized the 3rd respondent’s workers and negotiates (sic) on their behalf with the management of the 3rd defendant (Company in Receivership) with respect to their welfare including wages and conditions of service’.
It was further deposed in the affidavit in support of the originating summons:
‘The 3rd defendant makes monthly deductions from wages of workers and remits to the plaintiff as check-off dues in consequence of which both the persons with beneficial interest in the 3rd defendant’
Also deposed in the affidavit is ‘that from the month of November 2004, up the plaintiff to the tune of N2,976,432.00 which sum represents deductions made but not remitted’. And “That by August 2006, the 3rd defendant also defaulted in payment of salaries and wages of plaintiff’s member workers to the tune of N720,871,340.50 inclusive of arrears of salaries, leave bonuses and gratuities authenticated jointly by the plaintiff’s Union Chairman (Clement Abiola) and 3rd defendant’s Senior Management (Rev. E.M. Aruwaji and Accountant Christopher Idumwonyi) on 7th August, 2006. Exhibit ‘A’ attached to the affidavit in support.
The Assistant General Secretary of the plaintiff deposed in the affidavit in support that it was the plaintiff’s discovery upon seeking audience with the 3rd defendant (when?) that all its Directors ‘had fled the country and the 2nd defendant had taken possession purported enforcement of a Debenture Deed dated 17th January, 1984 and purportedly up stamped to N280 Million in July 2004′, which transaction the deponent is informed by the chairman of 3rd defendant and he verily believes that:
i. He was not aware of my loan transaction between the Company and the 1st defendant.
ii. There was no record of any loan of N280 Million in the company.
iii. The foreign Directors played a fraud on the company in collusion with the 1st defendant and fled the country’.
These averments are all uncontradicted and the court accepts them as factual and the basis on which the plaintiff decided to act to safe guard its interests in the 3rd defendant.
I find that the check-offs, monthly remittances, the 3rd defendant defaulted on amounting to N2,976,432.00 i.e. ‘deductions made but not remitted’ and the unpaid salaries and wages totaling N720,871,340.50 by August 2006 and detailed in Exhibit attached to the affidavit in support of the originating summons are debts due and arising to the plaintiff and the member workers it represents.
The plaintiff and its member/workers of the 3rd defendant are employees and creditors entitled to consideration under Section 390 of the Companies and Allied Matters Act. (CAMA).
The originating summons is particularly found on the plaintiff’s belief that there has been fraud perpetuated on the 3rd defendant by its foreign directors “fled (from the country” and the 1st defendant Bank, UBA.)
Fair enough; the question now is, whether the nature of the plaintiff’s interest, their status as employee/creditors grants them the locus to bring this form of action, an originating summons? The originating summons; among other things, questions the validity of the very instrument under which the said appointment was made i.e. the Deed of Floating Debenture dated 17th January, 1984 between the 1st and 3rd defendants?
The simple answer to this question is NO, for the simple reason that all the facts are not available for a resolution of the issues raised in the form of an originating summons. Notwithstanding that there is no counter affidavit controverting any of the averments in the affidavit in support, the court would not proceed to pronounce on the existence or other wise of fraud upon an originating summons, less so when founded on information provided to a deponent by a hapless chairman of the 3rd defendant, as represented, claiming to be in the about a major transaction such as a N4 Million loan taken by the company in the 1980’s which may or may not have developed into a N280 Million commitment in the course of 20 (twenty) years plus.
The question of fraudulent loans or otherwise would primarily be a matter for other stake holders such as directors, shareholders and possibly other contributors to capital. But whether they be Directors, shareholders or creditors, the form of action would not be on originating summons pursuant to Order 40 of the Federal High Court Civil Procedure Rules. A receiver/Manager has been appointed and is in residence at the company premises presumably running the affairs of the company.
The stakeholders who feel threatened, aggrieved or short-changed must come by way of an originating motion. See Rule 3 of Companies Proceedings Rules 1992. Under Section 3 (d) of the Rules, an applicant can apply pursuant to Section 315 of the Companies and Allied Matters Act for an order declaring that the affairs of a company ought to be investigated by an inspector appointed by the Corporate Affairs Commission.
Section 315 (10 (2) (a) of CAMA.
(1) the commission shall appoint one or more competent inspectors to investigate the affairs of a company and report on them in such manner as it directs, if the court by order declares that its affairs ought to be investigated.
(2) The commission may make such an appointment if it appears to it that there are circumstances suggesting that:
(a) The company’s affairs are being or have been conducted with intent to defraud its creditors or the creditors of any other person, or in a manner which is unfairly prejudicial to some part of its members, also see Section 315 (2) (b) (c) and (d).
All relevant information with documentary attachments necessary to sway a court would normally be expected in the affidavit and other motion papers in support of an application of this nature.
The companies’ proceedings rules provide for originating summons but I reiterate, the court would not proceed to pronounce on the existence or otherwise of fraud in the affairs of a company on the basis of incomplete information contained in an affidavit in support herein with attachments that may be intriguing but inconclusive of themselves.
An originating motion inviting an order for investigation pursuant to section 315 of CAMA would be the tool to use in aiming for a determination of fraud in the affairs of a company.
This action is misconceived in the present form and must be dismissed.
The ground of the respondents’ notice is a clear admission by the 1st – 3rd respondents of the fact that the trial court made no conclusive pronouncement on any of the grounds of the preliminary objection. The appellant has challenged the competence of the respondents’ notice. The respondents’ notice is clearly competent.
Order 9 Rule 2 of the Rules of this Court 2007 provides as follows:-
“A respondent who desires to contend on the appeal that the decision of the court below should be affirmed on grounds, other than those relied upon by that court, must give notice to that effect specifying the grounds of that contention.”
Ex-facie therefore, the respondents’ notice is competent. However Issues before any court are circumscribed by the processes before the court. It is clear from the notice of preliminary objection that the trial court was called upon to determine the competence of the appellant to sue the respondents and not the competence of the form of the process with which the appellant proceeded against the respondents. The appellant’s competence to sue having not been determined one way or another, I find the respondents’ notice most unhelpful. The question raised and answered by the trial court was “Whether the nature of the plaintiffs’ interest, their status as employee/creditors grants them the locus to bring this form of action, originating summons.” This was an ingenious re-engineering of the objector’s case for them. It is not for the court to formulate a party’s case for him.
Because the exercise by a court of its jurisdiction to entertain a suit is predicated on the competence of the originating process, every court is competent to suo motu raise the issue of the competence of the process. But before determining the suit or application on the want of competence raised suo motu, it is incumbent on the court to hear the parties on the issues so raised before determining the case on that issue. Where that is not done the court will be trampling on the party’s entitlement to fair hearing enshrined in S. 36(1) of the Constitution of the Federal Republic of Nigeria 1999.
The trial court ought not to have determined the competence of the form of instituting the action without first hearing the parties.

A breach of the rule of fair hearing results in the nullification of the proceedings however well decided they may be. See Irolo vs. Uka (2002) 14 NWLR (PT.786) 195, Offodile vs. Egwuatu (2006) 1 NWLR (pt. 961) 421, Bamigboye vs. Unilorin (1991) 8 NWLR (pt. 207) 1.
The appellant has made heavy weather of the reference to allegations of a fraud and its effect on the form of the suit by way of originating summons by the trial court. But for failure to first hear the parties before dealing with the form of the originating process, I would have upheld the findings of the trial court as to its competence. The appellant in paragraph 23 of the affidavit in support of originating summons alleged fraud, This is because Order 2 Rule 2 (1) (b) of the Federal High Court (Civil Procedure) Rules 2000 provides as follows:
“Subject to the provisions of any enactment or of rules by virtue of which any proceedings are expressly required to be begun otherwise than by writ, proceedings in which a claim
(a)…
(b) made by the plaintiff based on an allegation of fraud-
(e) …
(b) …
(e) …
Shall be begun by writ”.
The trial judge was therefore not chasing shadows when he concluded that suits founded on fraud ought not to be commenced by originating summons. The trial court however, having found the summons incompetent, ought not to have dismissed it, having not heard the suit on the merit.
A lot of verbiage was expended by the appellant on the trial judge’s review of the evidence before him and the state of the law relating thereto. Again, I will say that but for his mistake in not calling on the parties to address him on the form of the originating process, he would have been entitled to appraise the processes before him. As stated in Ajileye vs. Falenyode (1998) 4 NWLR (pt 545) 184, a trial judge has the right within the limits of the case before him to explore all angles and aspects of the facts, look at them with an analytical mind, express his opinion and make his findings based on the evidence before him and I may add expound on the law.
Having found as I had earlier that the trial court determined the suit on the incompetence of the originating summons without hearing the parties, I have no option but to avoid the entire proceedings. This appeal succeeds. The suit is remitted back to the Chief Judge of the Federal High Court for assignment to another judge who shall hear the preliminary objection de novo. The 1st to 3rd respondents’ are condemned in costs to the appellant in the sum of N30,000.00.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: My learned brother Agbo, J.C.A., had obliged me with a draft of the lead judgment, just delivered by him. Having read the judgment before now, I cannot but concur with the reasoning and conclusion reached therein, to the effect that the appeal is meritorious.
Hence, the appeal is hereby allowed by me. The lower court’s ruling resulting in the dismissal of the Suit No. FHC/CS/684/200, filed by the Appellant against the Respondents, is hereby set aside. I abide by the consequential orders remitting the case to the lower court for hearing of the preliminary objection de novo and N30,000.00 costs awarded to the Appellants against the 1st to 3rd Respondents.

REGINA OBIAGELI NWODO, J.C.A.: I read in advance the Judgment just delivered by my learned brother, Agbo J.C.A., and I agree with the reasoning therein and the conclusion that the appeal succeeds.
The concept of fair hearing is of great antiquity and universal. The right to a fair hearing is a very essential right for a person to secure justice and fair hearing connotes a fair trial. The right of address by counsel when a court raises an issue suo motu is an important aspect of the right to fair hearing. When the court fails to give the parties the opportunity to be heard before Judgment or Ruling as in the instance case any decision arrived at amounts to the denial of fair hearing rendering the proceedings null and void. See Ibom v. Gaji (1997) 6 N.W.L.R. (pt.509) 526 at 527.528 S.C.
The learned Trial Judge raised the issue of competency of the action and arrived at a decision without hearing from the parties. The entire proceedings amounted to a nullity. For the forgoing and the reasons in the lead Judgment, I hold also that there is merit in this appeal and I abide by the consequential order made in the lead Judgment inclusive of the order as to cost.

Appearances

JOHNSON O. ESEZOOBOFor Appellant

AND

DR. JOSEPH NWOBIKE (for 1st – 3rd respondent)
4th Respondent absentFor Respondent