OHEN & ANOR v. IGP & ORS (2021)

OHEN & ANOR v. IGP & ORS

(2021)LCN/15537(CA)

In The Court Of Appeal

(LAGOS JUDICIAL DIVISION)

On Thursday, July 22, 2021

CA/L/417/2017

Before Our Lordships:

Obande Festus Ogbuinya Justice of the Court of Appeal

Fatima Omoro Akinbami Justice of the Court of Appeal

Abdullahi Mahmud Bayero Justice of the Court of Appeal

Between

1. DR. GEOFERY OHEN 2. ABACUS ESTATE LIMITED APPELANT(S)

And

1. INSPECTOR GENERAL OF POLICE 2. NIGERIA POLICE FORCE 3. RESORT INTERNATIONAL LIMITED 4. DR. BOLANLE OLAWALE BABALAKIN 5. BI-COURTNEY LIMITED RESPONDENT(S)

 

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the correctness of the decision of Federal High Court, Lagos Division (hereinafter addressed as “the lower Court”) coram judice: A.M. Anka, J., in Suit No. FHC/L/CS/222/2016, delivered on 16th December, 2016. Before the lower Court, the appellants and the respondents were the applicants and the respondents respectively.

​The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. On 21st July, 2009, Aso Savings and Loans Plc., a mortgage banking institution, granted a credit facility of N500M to the fifth respondent. The fifth respondent’s property situate at No. 70 Alexander Avenue, Ikoyi, Eti-Osa Local Government Area of Lagos State, registered under Title No. 34 at page 34 in volume 113 at the Federal Lands Registry, Ikoyi, Lagos, was used as collateral/security for the loan. A legal mortgage was created thereon in favour of the Aso Savings and Loans Plc. The fifth respondent defaulted in the repayment of the facility even after consent judgment over it. The Aso Savings and Loans Plc then sold the mortgaged property, No. 70 Alexander Avenue, Ikoyi, Lagos (the property) to the appellants who took peaceful possession and commenced renovation of it. Subsequently, on 7th October, 2015, the third–fifth respondents wrote a petition against the appellants to the first respondent. The appellants alleged that the petition led to the arrest and detention of the first appellant for five hours on 22nd December, 2015. Sequel to that, the appellants beseeched the lower Court, via an originating motion filed on 16th February, 2016, under the fundamental right proceeding, and tabled several declaratory, mandatory/injunctive and monetary reliefs against the respondents.

In reaction, the respondents joined issue with the appellants and denied liability by filing counter-affidavits and written addresses. The suit was duly heard by the lower Court. In a considered judgment, delivered on 16th December, 2016, found at pages 429-462, the lower Court “dismissed” the originating motion.

The appellants were dissatisfied with the decision. Hence, on 6th February, 2017, the appellants lodged a 7-ground notice of appeal, which is copied at pages 472A– 472L of the record, wherein they prayed this Court:
To allow this appeal, set aside the judgment of the lower Court appealed against and exercise its powers under Section 15 of the Court of Appeal Act to grant the Appellants’ reliefs as prayed in their application to enforce their fundamental rights.

Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure for hearing civil appeals in this Court. The appeal was heard on 21st June, 2021.

During its hearing, learned appellants’ counsel, Dr. Charles D. Mekwunye, adopted the appellants’ brief of argument and the appellants’ reply brief, both filed on 20th March, 2020, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the third–fifth respondents, O. Awonuga, Esq., adopted the third–fifth respondents’ brief of argument, filed on 29th June, 2020, as forming his reactions against the appeal. He urged the Court to dismiss it. For record purposes, the first and second respondents were duly served, but they filed no brief of argument.

In the appellants’ brief of argument, learned counsel distilled seven issues for determination to wit:
i. Whether the fair hearing right of the Appellants were not breached by failure of the learned trial Judge to consider all the issues raised and cases cited by the Appellants?
ii. Whether the fair hearing right of the Appellants were not breached following the misapplication and misinterpretation of the provisions of Order 6 Rule 5 of the Fundamental Rights (Enforcement Procedure) Rules 2009?
iii. Whether the fair hearing right of the Appellants were not breached following the trial Court’s refusal to be bound by decisions of the superior Courts cited to it by the Appellants?
iv. Whether the fair hearing right of the Appellants were not breached when the learned trial Judge considered only the 6th Respondent’s Counter-Affidavit as his finding of facts in this case in resolving the issues raised by the Appellants?
v. Whether the fair hearing right of the Appellants were not breached when the learned trial Judge misdirected himself on the facts and issues submitted to it for consideration?
vi. Whether the fair hearing right of the Appellants were not breached when the learned trial Judge suo motu struck out paragraphs 9 (b), 10(i), (iv), (v), (vi), (x), (xi), 12(c), (d), (e) and (f) of the Appellants’ Further Affidavit?
vii. Whether the trial Court’s decision to affirm the actions of the 1st–2nd Respondents because the Appellants engaged the Police via their Petition and the Police Investigation revealed the 2nd Appellant’s company trespassed the property No. 70 was not perverse?

In the third–fifth respondents’ brief of argument, learned counsel crafted two issues for determination, viz:
1. Whether the Appellants’ right to a fair hearing was breached by the lower Court?
2. Whether the decision of the lower Court as it relates to the conduct of the police was perverse?

A close look at the two sets of issues shows that they are identical in substance. In fact, the third–fifth respondents’ issues can be conveniently subsumed under the appellants’. For this sameness, I will decide the appeal on the issues nominated by the appellants: the undisputed owners of the appeal. However, for reasons that will unfold anon, I will handle issue two first. I will take it as a sole issue

Arguments on the issue
Learned appellants’ counsel submitted that the appellants’ right to fair hearing was breached when the lower Court misapplied and misinterpreted the provision of Order VI Rule 5 of the Fundamental Right (Enforcement Procedure) Rules, 2009 (FREPR) when it struck out their further affidavits. He stated that averments in affidavit which are not controverted are deemed admitted. He relied on Agbaje v. Ibru Sea Food Ltd. (1972) 5 SC 50; Alagbe v. Abimbola (1978) 2 SC 39; Egbuna v. Egbuna (1989) 2 NWLR (Pt. 106) 773; A–G., Anambra v. Okeke (2002) 5 SCNJ 318. He explained that the appellants never intended to amend their statement so that Rules 3 and 4 of Order 6 of FREPR were inapplicable. He asserted that the Order did not provide for motion on notice. He added that all the rules of the order must be read together. He cited Ekunola v. CBN (2005) LPELR–11414 (CA). He reasoned that rules of Court must be interpreted in manner to avoid technicality. He persisted that the striking out breached the appellants’ right to fair hearing and caused them miscarriage of justice.
For the third–fifth respondents, learned counsel contended that the appellants did not challenge the striking out of their further affidavits. He stated that appellants’ complaint was an error in law which was defined in Anoghalu v. Oraelosi (1999) 13 NWLR (Pt. 634) 297. He explained that not all error in law would lead to upturn of judgment. He cited Enugu State University of Science and Technology v. Institute of Journalism, Management and Education (2010) 11 NWLR (Pt. 1205) 297). He took the view that the striking out was not a breach of the appellants’ right to fair hearing since the further affidavits were not before the lower Court. He postulated that the lower Court rightly interpreted Order 6 of the FREPR as the appellants needed leave of Court before using the further affidavits because of the use of the word “may” therein. He opined that rules of Court must be obeyed. He referred to Bayero v. Mainasara & Sons Ltd. (2006) 8 NWLR (Pt. 982) 391; Owners of the MV. Arabella v. NAIC (2008) 11 NWLR (Pt. 1097) 182; G.M.O.N. & S. Co. Ltd. v. Akputa (2010) 9 NWLR (Pt. 1200) 443.

On points of law, learned appellants’ counsel posited that the word “may” used in Order VI of the FREPR means “shall” in relation to further affidavit dealing with new matters in a counter-affidavit. He cited PDP v. Sheriff (2017) LPELR–42736 (SC); Ifezue v. Mbadugha (1984) 1 SCNLR 427. He added that rules of Court must be obeyed, but interest of justice is paramount in adjudication. He referred to T.M. Lewin (Nig.) Ltd. v. Smart Mark Ltd. (2017) LPELR – 43136 (CA).

Resolution of the issue.
A clinical examination of the issue reveals the kernel of it. It chastises the lower Court’s finding that the appellants’ further affidavits, filed on 6th May, 2016 and 13th May, 2016, to refute the counter-affidavit of the first and second respondents were incompetent. The lower Court’s declaration against those further affidavits, which snowballed into their expulsion from the suit, was erected on the appellants’ infraction of the provision of Order VI, especially Rule 5, of the FREPR by their failure/neglect to file a motion on notice seeking leave of Court for their usage. As expected, the feuding parties are diametrically opposed on the lower Court’s pronouncement and interpretation of the provision. While the appellants disclaim the lower Court’s view point, the third–fifth respondents welcome it. The legal impasse is a subtle summon on this Court to explore the contours of some canons of interpretation of statutes vis-a-vis the provision.

In an abiding loyalty to the desire of the law, I have consulted the record book – the spinal cord of every appeal. My port of visit is the residence of the lower Court’s 33 page judgment which monopolises pages 429–462 of the record. I have perused it with the finery of a toothcomb. Admirably, it is submissive to comprehension. It is decipherable from the judgment that the provision of Order VI of the FREPR is the cynosure of the issue. Due to its kingly position on the issue, it is imperative to pluck it out from its domicile in the statute book, ipsissima verba, as follows:
ORDER VI– AMENDMENTS OF STATEMENTS AND AFFIDAVITS.
1. No grounds shall be relied upon or any relief sought at the hearing of the application, except the grounds and the reliefs are set out in the statement.
2. The Court may, on the hearing of the application allow the statement to be amended and may allow further affidavits to be used if they deal with new matters arising from the counter-affidavit of any party to the application.
3. The application for amendment shall be supported by an exhibit of the proposed application to be amended and may be allowed by the Court upon such terms or otherwise as may be just.
4. Where a party who obtained an order to amend fails to comply with the order within the time allowed by the order of Court, such party shall be deemed to have abandoned the amendment unless he obtains all order of Court for extension of time to file the same.
5. Where the applicant intends to ask to be allowed to amend his statement or use further affidavit, he must put the other party or parties on notice of his intention to amend.
​Indisputably, the provision is rebellious to ambiguity/clarity. To this end, the law commands the Court to employ the literal rule on its interpretation, id est, to accord it its ordinary grammatical meaning without any embellishments, see Berliet v. Kachalla (1995) 12 SCNJ 147, Dingyadi v. INEC (No. 2) (2010) 18 NWLR (Pt.1224) 154; Kraus Thompson Org. Ltd. v. NIPSS (2004) NWLR (Pt.901); Uwazurike v. A.G., Fed. (2007) 8 NWLR (Pt. 1035)1; Branco v. Wemabod Estate Ltd. (2011) 6 NWLR (Pt. 1243) 378; Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275. I will pay due fidelity to this legal commandment, in the construction of the provision, in order not to insult the law.
It is a common ground, between the contending parties in the appeal, that the casus belli is the construction the lower Court placed on the provision of Order VI Rule 5 of the FREPR displayed above (the interpretation, for short). The lower Court weaved the “put the other party or parties on notice on his intention” as envisaging a motion on notice. To begin with, the phrase motion on notice or application is absent from the provision of the Rule 5 as against Rule 3 which specifically mentions application. In the glaring absence of motion on notice or application, the lower Court, with due reverence, deeply, erred in law when it imported and propagated it into the provision. It is a recognised canon of interpretation of statutes, which embrace subsidiary enactments, that the express mention of specific thing excludes the other things unmentioned. In the Latin days of the law, it was encapsulated thus: Expressio unius est exclusio alterius or Inclusio unius exclusio alterius or Enumeratio unius exclusio alterius. The case-law has since given its blessing to this rule of interpretation, see Ehuwa v. O.S.I.E.C (2006) 18 NWLR (Pt.1012) 544; P. & C.H.S. Co. v. Migfo (Nig.) Ltd. (2009) 11 NWLR (Pt. 1153) 611; A.G., Fed. v. Abubakar (2007) 10 NWLR (Pt. 1041) 1; PDP v. INEC (2014) 17 NWLR (Pt. 1437) 525; Sun Ins. (Nig.) Plc. v. UECC Ltd, (2015) 11 NWLR (Pt. 1471) 576; Jev. v. Iyortom (2015) 15 NWLR (Pt. 1483) 484; Shinkafi v. Yari (2016) 7 NWLR (Pt. 1511) 340; Opia v. INEC (2014) 7 NWLR (Pt. 1407) 431; A.G., Lagos State v. A.G., Fed. (2014) 9 NWLR (Pt. 1412) 217; Sun Ins. (Nig.) Plc. v. U.E.C.C. Ltd. (2015) 11 NWLR (Pt. 1471) 576; Oni v. Gov., Ekiti State (2019) 5 NWLR (Pt. 1664) 1.
​It is elementary law that the primary duty/function of the Court/Judex is jus dicere, not jus dare, id est, to declare what the law is and not to formulate one, see Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 367; Kraus Thompson Org. Ltd. v. N.I.P.S.S. (2004) 17 NWLR (Pt. 901) 44); Dickson v. Sylva (2017) 8 NWLR (Pt. 1567) 167; Coca-cola (Nig.) Ltd. v. Akinsanya (2017) 17 NWLR (Pt. 1593) 74. It will constitute a serious fracture of the rudimentary/traditional role of the Court to factor the missing “motion on notice or application” into the provision as solicited by the third–fifth respondents. The law does not grant this Court the licence to indulge in such untoward and injudicious exercise which will reek of judicial legislation – a judgment wearing the garb, colouration or flavour of a statute. That will tantamount to an unjustifiable usurpation, trespass and invasion of the exclusive constitutional territory of the legislature. Such is not only antithetical to the raison d’etre for adjudication, but an amputation of the constitutional doctrine of separation of powers. I must decline such enticing supplication that has the potential to strangulate the existential and cherished doctrine of separation of powers which is, firmly, entrenched in the Constitution – the fons et origo of our laws.
That is not all. Those appellants’ further affidavits, which the lower Court ostracised from the suit, were intended to neutralise or demolish new matters which germinated from the averments in the first and second respondents’ counter-affidavits. In this wise, Rule 2 of the Order VI equips the lower Court with the power to permit their usage in fundamental rights proceeding. To equate the phrase “put the other party or parties on notice of his intention” with filing a motion on notice or application is, to my mind, tantamount to saddling on an applicant, who besieges the Court for redress under the shelter of fundamental right action, with unbearable burden. That will defeat every logic and rationale for enforcement of fundamental right expeditiously. It will, also, defile the overriding objectives of the FREPR, which reside at their cradle in the preamble, that fundamental rights “shall be expansively and purposely interpreted and applied”.
​The law, in its infinite wisdom, tasks/imposes on the Court the bounden duty to interpret a legislation in a manner that ensures that its mission is accomplished. In this regard, it must bear in mind, like a badge on its shoulder, that a law must not be construed to emasculate its purposes. In the heydays of the Latin law, it was couched: Ut res magis valeat quam valeat- that a matter may have effect rather than fail, see F.C.S.C. v. Laoye (1989) 2 NWLR (Pt. 106) 652; Onochie v. Odogwu (2006) 6 NWLR (Pt. 975) 65; Elebanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76; Olalomi Ind. Ltd. v. N.I.D.B. Ltd. (2009) 16 NWLR (Pt. 1167) 266; A.G., Fed., v. A-G, Lagos (2013) 16 NWLR (Pt. 1380) 249; A.G., Nasarawa State v. A.G., Plateau State (2012) 10 NWLR (Pt. 1309) 419; Abegunde v. O.S.H.A (supra); Gov., Kwara State v. Dada (2011) 14 NWLR (Pt. 1267) 384; Amadi v. INEC (2013) 4 NWLR (Pt. 1345) 595; Dickson v. Sylva (2017) 8 NWLR (Pt. 1567) 167; Skye Bank Plc v. Iwu (2017) 16 NWLR (Pt. 1590) 24. The interpretation which the lower Court accorded to the Rule 5, with due respect, castrated the purpose/aim of further affidavit in any adjudication; a fortori its purport in fundamental right proceeding. It has the potency to disable quick determination and dispensation of justice in the firmament of fundamental right matters as enjoined by the FREPR.
Indubitably, the lower Court’s interpretation of Rule 5 necessitates the deployment of the golden rule of interpretation of statutes on the provision. The famous rule traces its ancestry to Grey v. Pearson (1854) 6 H.L. Cas. 61 at 106 which, in turn, owes its pedigree to Mattison v. Heart (1854) 4 C.B. 357 at 385. In A.D.H. Ltd. v. A.T. Ltd. (2006) 10 NWLR (Pt. 989) 635 at 649, Pats-Acholonu, JSC, graphically, captured the import and elements of the rule in these illuminating words:
“The dictates of the principle or doctrine of Golden Rule in statutory interpretation imposes on the Court the duty to give a construction that seeks to liberate and expound the horizon of the law to make it a living law that would cater for the future. I believe that where a provision in a statute is liable to be construed either in the positive or in the negative form or connotation, then it is definitely more beneficial to adopt the interpretation that is more in tune with the public will and benefit.”
See also, Idehen v. Idehen (1991) 7 SCNJ (Pt. II) 196; Ugwu v. Ararume (2007) NNLR (Pt. 1048) 367. The interpretation on Rule 5, to all intents and purposes, with due regard, inflicts an untold hardship and inconvenience on the appellants. It exhibit serious repugnancy to fairness within the purview of utilisation of the counter and further affidavits of the parties. It is a classic exemplification of absurdity. It totally, punctures the letter and spirit of pro bono publico: the bedrock/touchstone of the golden rule of interpretation. In effect, the interpretation does not deserve the approbation of this Court.
In an avowed bid to pacify the injunction and requirement of the prescription of Order VI Rule 5 of the FREPR, the appellants filed “NOTICE OF INENTION TO USE FURTHER AFFIDAVIT PURSUANT TO ORDER VI RULE 5 OF THE FUNDAMENTAL RIGHTS (ENFORCEMENT PROCEDURE) RULES, 2009”. This notice monopolises pages 266 and 267, 326 and 327 and 351 and 352 of the record. The notices were in respect of the appellants’ two further affidavits that were jettisoned by the lower Court. Flowing from this brief juridical survey on canons of interpretation of legislations, inclusive of subsidiary enactments, done in due obeisance to the law, the notices are, ample, satisfaction and compliance with the prescription of Rule 5 which commands applicants intending to use further affidavits to “put the other party or parties on notice of his intention” to do so. This is more so when the notices were served on the opponents, the respondents. Each notice is a sufficient notification on the adverse respondents even as it conserves the scarce juridical time with the potential for speedy disposal of fundamental right proceeding. Admirably, the law has directed the Courts to display activism and dispatch in determining fundamental right actions, seeFidelity Bank Plc. v. Monye (2012) 10 NWLR (Pt. 1307) 1; Laffia Local Govt. v. Gov., Nasarawa State (2012) 17 NWLR (Pt. 1328) 94; Benson v. C.O.P. (2016) 12 NWLR (Pt. 1524) 445.
In the light of this brief legal anatomy, I endorse, in toto, the alluring submission of the learned appellants’ counsel that the interpretation placed on the provision of Rule 5 smells of an enticing supplication to technicality. Indisputably, presently, the Courts have evolved the paradigm shift from the pangs of technicality to dishing out substantial justice: “Justice fairly administered accordingly to rules of substantive law, regardless of any procedural errors not affecting the litigant’s substantive right; a fair trial on the merits,” see Bryan A. Garner(ed) Black’s Law Dictionary (8th edition) page 881. Technicality means a harmless error/mistake that does not go to the root of a case, see Olley v. Tunji (2013) 10 NWLR (Pt. 1362) 275. The “spirit of justice does not reside in form and formalities, nor in technicalities,” see Bello v. A.G., Oyo State (1986) 5 NWLR (Pt. 45) 828 at 886, per Oputa, JSC;Omisore v. Aregbesola (2015) 15 NWLR (Pt. 1482) 205. Substantial justice and technical justice, arch enemies in adjudication, had been in a protracted imaginary battle on which to win and arrest the attention of the Nigerian Courts. However, in the process of the juridical duel, the case-law, rightly, intervened and slaughtered technicality and buried it, deeply, under the temple of substantial justice. To accede to the first–fifth respondents’ request will be akin to resurrecting the deceased technicality. This will be an affront to the law.
​The foregoing exposition, with due deference, exposes the poverty of the dazzling argument of the learned counsel for the third-fifth respondents in support of the interpretation of the provision. It will smack of judicial sacrilege to crown the lower Court’s interpretation of Order VI Rule 5 of the FREPR with the toga of proper/legitimate construction in the sense that it discloses serious hostility to the law.

Now, the gravamen of the appellants’ chief grievance, indeed their trump card on the decisive issue, is that the lower Court’s decision, delivered on 16th December, 2016, which struck out their further affidavits, was an erosion of their inviolable right to fair hearing as guaranteed by Section 36(1) of the Constitution, as amended. Fair hearing denotes a trial which is conducted in accordance with all the legal rules formulated to ensure that justice is done/dished out to parties to the cause, see Eze v. FRN (2017) 15 NWLR (Pt. 1589) 433; Ardo v. INEC (2017) 13 NWLR (Pt. 1583 450; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1; Akingbola v. FRN (2018) 14 NWLR (Pt. 1640) 395; La Wari Furniture & Baths Ltd. v. FRN (2019) 9 NWLR (Pt. 1677) 262. Owing to its olympian status in the appeal, it is germane to display some of the notable features of fair hearing – a mantra which, nowadays, competes with jurisdiction for prominence in adjudications.
The ancient concept of fair hearing traces its paternity to divinity. It was a common law doctrine which has metamorphosed into our corpus juris and, firmly, enshrined in Section 36(1) of the Constitution, as amended. It donates to the citizens, the inviolate right to ventilate their grievances on the altar of the two concrete pillars of natural justice videlicet: audi alteram partem – hear the other side and nemo judex in causa sua – no one should be a judge in his own case.

The whole essence of fair hearing, which is coterminous with fair trial, connotes giving parties to any proceedings, be it judicial or administrative body, an equal opportunity to present their cases. It follows that fair hearing is, totally, divorced from correctness of a decision. It centres on the cardinal principle that a fair-minded person who watched the proceedings, before a Court or administrative or quasi judicial body, should conclude that it exhibited even handedness/fairness in apportioning justice to the parties, see O.O.M.F. Ltd v. NACB (2008) 12 NWLR (Pt. 1098) 412; Nwanegbo v. Olawole (2011) 37 WRN 101; Kim v. State (1992) 4 NWLR (Pt. 233) 17; Newswatch Comm. Ltd. v. Atta (2006) 12 NWLR (Pt. 993) 144; FRN v. Akabueze (2010) 17 NWLR (Pt. 1223) 525; S & D Const. Co. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 487; Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Nigeria Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56; J.S.C., Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Mpama v. FBN Plc (2013) 5 NWLR (Pt. 1346) 176; Abah v. Monday (2015) 14 NWLR (Pt. 1480) 569; Gov., Zamfara State v. Gyalange (2013) 8 NWLR (Pt. 1357) 462; Achuzia v. Ogbomah (2016) 11 NWLR (Pt. 1522) 59; Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124; Labour Party v. Bello (2017) 2 NWLR (Pt. 1548) 148; Darma v. Ecobank (Nig.) Ltd. (2017) 9 NWLR (Pt. 1571) 480; Olayioye v. Oyelaran I (2019) 4 NWLR (Pt. 1662) 351.

The apex Court, in Baba v. Civil Aviation (1991) 5 NWLR (Pt. 192) 388 at 423, per Nnaemeka-Agu, JSC, evolved the parameters to guide the Court to ensure fair hearing to include the right of the person to be affected:
(i) to be present all through the proceedings and hear all the evidence against him;
(ii) to cross-examine or otherwise confront or contradict all the witnesses that testify against him;
(iii) to have read before him all the documents tendered in evidence at the hearing;
(iv) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial to the party, save in recognised exceptions;
(v) to know the case, he has to meet at the hearing and have adequate opportunity to prepare for his defence; and
(vi) to give evidence by himself, call witnesses if he likes, and make oral submissions either personally or through a counsel of his choice.
See, also, JSC, Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Eze v. FRN (supra); Olayioye v. Oyelaran I (2019) 4 NWLR (Pt. 1662) 351; La Wari Furniture & Baths Ltd. v. FRN (supra); S & D Const. Co. Ltd. v. Ayoku (supra). I will be guided by these catalogued elements of fair hearing as the barometer to gauge/measure the appellants’ agitation of infraction of their rights to fair hearing.

​At the cradle of the resolution of this stubborn issue, I had found that the lower Court’s declaration of the appellants’ further affidavits as incompetent and the striking out of the same were offensive to the law on the footing of misinterpretation of the clear provision of Rule 5 of Order VI of the FREPR. There are no extenuating circumstance/facts, furnished by the third-fifth respondents, that will propel me to disturb that solemn finding which I reached in due allegiance to the interpretative jurisdiction of this Court. The caustic/dismal consequence of striking out those competent further affidavits is not far-fetched. It misled the lower Court to ignore the consideration of those further affidavits as the appellants’ processes in the prosecution of the suit. In other words, those vital, viable and valid further affidavits, with the sole target to debunk/douse the effervescent averments in the first and second respondents’ counter-affidavits, were deemed as non-existent processes. Put simply, the lower Court, having expunged them on the pseudo-reason that they were plagued by indelible incompetence, did not use them in the determination of the appellants’ suit which mothered this appeal. That, to my mind, was a quintessential instance of violation of the appellants’ inviolate right to fair hearing as engrained in Section 36(1) of the Constitution, as amended. Put simply, the appellant discharged the burden to prove a denial of fair hearing which the law has cast on them, see Maikyo v. Itodo (2007) 7 NWLR (Pt. 1034) 443; S & D Const. Co. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 487. The appellants needed not to prove the damages or losses they incurred consequent upon the breach of their right to fair hearing, see Oshiomhole v. Airhiavbere (2013) 7 NWLR (Pt. 1353) 376; Olayioye v. Oyelaran I (supra). A proof of breach of right to fair hearing, as happened in the case which parented the appeal, carries with it a miscarriage of justice. Put differently, a miscarriage of justice is inherent in a breach of a right to fair hearing, see Mpama v. FBN Plc. (supra); Eze v. Unijos (2017) 17 NWLR (Pt. 1593) 1; N.U.T, Taraba State v. Habu (supra); Thomas v. FJSC (2019) 7 NWLR (Pt. 1671) 284.
​Where a party’s sacred right to fair hearing is flouted, as in this case, no matter the quantum of fair-mindedness, dexterity, artistry and objectivity injected into the proceeding hosting the breach, it will be mired in the intractable web of nullity, see Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452; C.K & W. M. C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Eze v. Unijos (supra); Ezenwaji v. U.N.N. (2017) 18 NWLR (Pt. 1598) 485; Poroye v. Makarfi (2018) 1 NWLR (Pt. 1599) 91; APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1; S.A.P. Ltd. v. Min., Petroleum Resources (2018) 6 NWLR (Pt. 1616) 391; Zenith Plastics Ind. Ltd v. Samotech Ltd. (2018) 8 NWLR (Pt. 1620) 165; Olayioye v. Oyelaran I (supra), La Wari Furniture & Baths Ltd. v. FRN (supra). This is a confluence point where want of fair hearing and jurisdiction embrace themselves to vitiate proceedings that give birth to a denial of fair hearing, see O.O.M.F. Ltd. v. NACB Ltd. (supra); Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Achuzia v. Ogbomah (supra); Apeh v. PDP (2016) 7 NWLR (Pt. 1510 153; Abah v. Monday (2015) 14 NWLR (Pt. 1480) 569.
​In the eyes of the law, nullity denotes: “Nothing; no proceeding; an act or proceeding in a case which the opposite party may treat as though it had not taken place; or which has absolutely no legal force or effect”, see Lasisi v. State (2013) 12 NWLR (Pt. 1367) 133 at 146, per Ngwuta JSC; Ezenwaji v. U.N.N. (supra); Mamman v. Hajo (2016) 8 NWLR (Pt. 1575) 411. The dire consequence of a nullity is far-reaching. If a decision or proceeding is soiled by nullity, it is void and taken as it was never given or made, see Okoye v. Nigeria Const. & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342. Moreover, such a decision or proceeding, in the view of the law, bestows no enforceable right on its beneficiary party, who possesses it, nor does it impose any obligations on its victim party, see Ajiboye v. Ishola (2006) 13 NWLR (Pt. 998) 628; Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. The bounden duty of a Court is to set aside a null order ex debito justitiae in that it does not exist in law, see Mamman v. Hajo (supra); N.A.C.B. Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Oyeyemi v. Owoeye (2017) 12 NWLR (Pt. 1580) 364.
​The lower Court’s failure to accommodate and consider the appellants’ further affidavits, which cried for its attention in its file, was, with due respect, injurious to the law. It constituted a flagrant infraction of the appellants’ inalienable right to fair hearing as decreed in the sacrosanct provision of Section 36 (1) of the Constitution, as amended, see Otapo v. Sunmonu (supra); Odedo v. Oguebego (supra). On the strength of the inelastic position of the law, dissected above, the lower Court’s decision of 16th December, 2016 and all other proceedings, anterior to it, were/are marooned in the murky ocean of nullity. On this score, the law compels me to mow them down with the unbiased judicial sword of this Court. In effect, I dishonour the third-fifth respondents’ learned counsel’s salivating invitation to endorse the lower Court’s injudicious exercise that was contemptuous of the law. Such will amount to transgression of the law. In the end, I have no choice than to resolve the solitary issue in favour of the appellants and against the third–fifth respondents.

​My noble Lords, for the sake of completeness, the order to make when a person breaches a party’s unassailable right to fair hearing, as engraved in Section 36(1) of the Constitution, as amended, is not a moot point. It is, firmly, settled that: “once there is such a denial of the said right (right to fair hearing) the only order that could be made on appeal is one for re-trial or re-hearing. This is to enable the appellant to be properly heard,” see Kalu v. State (2017) 14 NWLR (Pt. 1586) 522 at 547, per Nweze, JSC;Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124; C.K. & W.M.C. Ltd. v. Akingbade (supra); Akingbola v. FRN (supra); Ahmed v. Regd Trustees, AKRCC (2019) 5 NWLR (Pt. 1665) 300; Fapohunda v. R.C.C.N. Ltd. (2019) 3 NWLR (Pt. 1658) 163. This hallowed and inelastic position of the law, known for its antiquity, makes mincemeat of the appellants’ prayer/solicitation to this Court to invoke its expansive power under Section 15 of the Court of Appeal Act and determine their suit. That extensive jurisdiction “Until it is awakened into action from its sleep by such a complainant, it remains a contended tiger sleeping on its lair”, see Ejowhomu v. Edok-Eter Ltd. (1986) 5 NWLR (Pt. 39) 1 at 35, per Aniagolu, JSC.

Furthermore, once an appellate Court intends to order, or orders, for a de novo hearing, the law forbids it from treating any other issues in the appeal or points that may arise at the rehearing proceedings, see C. K. & W.M.C. Ltd. v. Akingbade (supra); Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Karaye v. Wike (2019) 17 NWLR (Pt. 1701) 355. I will pay due obedience to this injunction of the law so as not to prejudice the issues that may crop up during the rehearing sessions.

On the whole, having resolved the singular issue in favour of the appellants, the destiny of the appeal is plain. It is imbued merit. Consequently, I allow the appeal. Accordingly, I set aside the proceedings and decision of the lower Court, delivered on 16th December, 2016, for being a nullity. I remit the Suit No. FHC/L/CS/222/2016, filed by the appellants, to the Chief Judge of the Federal High Court for re-assignment to another Judge, other than A. M. Anka, J., for a fresh hearing. The parties shall bear the respective costs they incurred in the prosecution and defence of the fruitful appeal.

FATIMA OMORO AKINBAMI, J.C.A.: I have read in advance, the judgment delivered by my learned brother, Obande Festus Ogbuinya, JCA. His Lordship has dealt exhaustively with the issues in this appeal and I agree completely with the reasoning and conclusions reached therein.

The fulcrum of this appeal is the complaint of the Appellants that, their fair hearing right was breached by the lower Court, in its misapplication and misinterpretation of the provisions of Order 6, Rule 5 of the Fundamental Rights (Enforcement Procedure) Rules 2009, when it struck out their further affidavits. The provisions of the Order 6 state as follows:
ORDER VI- AMENDMENTS OF STATEMENTS AND AFFIDAVITS.
1. No grounds shall be relied upon or any relief sought at the hearing of the application, except the grounds and the reliefs are set out in the statement.
2. The Court may, on the hearing of the application allow the statement to be amended and may allow further affidavits to be used if they deal with new matters arising from the counter-affidavit of any party to the application.
3. The application for amendment shall be supported by an exhibit of the proposed application to be amended and may be allowed by the Court upon such terms or otherwise as may be just.
4. Where a party who obtained an order to amend fails to comply with the order within the time allowed by the order of Court, such party shall be deemed to have abandoned the amendment unless he obtains all order of Court for extension of time to file the same.
5. Where the applicant intends to ask to be allowed to amend his statement or use further affidavit, he must put the other party or parties on notice of his intention to amend.

I will state emphatically that the above provisions of law has no iota of ambiguity at all but, its provisions particularly Rule 5 under our discourse is very clear and unambiguous, and as such, does not demand or require any other rule of interpretation. See BABALE vs EZE (2011) 1 NWLR (PT 1257) 48; A.B.SU VS OTOSI (2011) 1 NWLR (PT 1229) 605 UGWU vs ARARUME (2007)12 NWLR (PT 1048) 365. In PDP VS INEC (2014) 17 NWLR (PT 1437) 525 at 558, the Apex Court held inter alia that:- “The cardinal principle in the interpretation of statutes is that the meaning of the statutes or legislation must be derived from the plain and unambiguous expressions or words used therein rather than from any notions that may be entertained as to what is just and expedient. The literal rule of interpretation is always preferable unless it would lead to absurdity and inconsistence with the provisions of the statute as a whole.” See also MARWA vs NYAKO (2012) 6 NWLR (PT 1296) 199.”

It is for this, and the fuller adumbration of the principles of law by my noble Lord, Obande Festus Ogbuinya, contained in the lead judgment, that I also find this appeal meritorious, and it is accordingly allowed by me. I equally set aside the proceedings and decision of the lower Court delivered on 16th December, for being a nullity. I also remit Suit NO FHC/I/CS/222/2016 filed by the Appellants, to the Chief Judge of the Federal High Court for re-assignment to another Judge, other than A.M. Anka J.
I abide the consequential orders.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I read in advance, the draft of the judgment just delivered by my learned brother Obande Festus Ogbuinya, JCA. I agree with the reasoning and the conclusion that this appeal is meritorious. It is hereby allowed by me. I abide with the consequential orders.

Appearances:

Dr. Charles Mekwunye For Appellant(s)

O. Awonuga, Esq. – for third – fifth Respondents
No legal representation for the first and second Respondents For Respondent(s)