RESORT SAVINGS AND LOANS PLC v. MOHAMMED & ORS
(2020)LCN/15238(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Wednesday, April 22, 2020
CA/YL/124/18
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
RESORT SAVINGS AND LOANS PLC APPELANT(S)
And
1. ADAMU MOHAMMED 2. BELLO AHMAD MOHAMMED 3. MUSTAPHA KADIR RESPONDENT(S)
RATIO
DEFINITION OF “FAIR HEARING”
In ARIORI & ORS VS. ELEMO & ORS (1983) LPELR – 552 (SC) P. 44, PARA. A; his Lordship Obaseki, JSC simply defined “fair hearing” thus:
“Fair hearing, therefore, must mean a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause.”
Also, in INEC VS. MUSA (2003) LPELR – 24927 (SC) P. 94, PARAS. A –B, his Lordship Tobi, JSC defined fair hearing thus:
“Fair hearing, in essence, means giving equal opportunity to the parties to be heard in the litigation before the Court. Where parties are given opportunity to be heard, they cannot complain of breach of the fair hearing principles.”
See DANGOTE GEN. TEXTILE PRODUCTS LTD & ORS VS. HASCON ASSOCIATES (NIG) LTD & ANOR (2013) LPELR – 20665 (SC) P. 21, PARAS. A – B, ASAKITIKPI VS. STATE (1993) LPELR – 572 (SC) P. 8, PARA. A; NTUKIDEM & ORS VS. OKO & ORS (1986) LPELR – 2075 (SC) P. 43, PARAS. D – F, UBN LTD & ANOR VS. NWAOKOLO (1995) LPELR – 3385 (SC) P. 27, PARAS. D – E and UGURU VS. STATE (2001) LPELR – 3325 (SC) PP. 13 – 14, PARAS. F – A. PER UWA, J.C.A.
WHETHER OR NOT BREACH OF FAIR HEARING ONCE SUBSTANTIVE IN A DECISION VITIATES THE WHOLE DECISION
The stampeding procedure followed by the trial Court was wrong. The Court cannot in pursuit of quick disposal of a matter sacrifice the Constitutional principle of fair hearing at the altar of speedy hearing of cases when the speedy trial disregards the principle of fair hearing in availing the parties equal opportunity to be heard. See MOHAMMED VS. KANO N.A. (1968) LPELR – 25487 (SC) P. 3, PARAS. B – C, DARMA VS. ECOBANK (2017) LPELR – 41663 (SC) PP. 23 – 24, PARAS. E – C and YUSUF VS. STATE (2011) 6 – 7 SC (PT. V) P. 180. In such situation as has occurred here, it is not whether the same decision would have been reached had the Appellant been in Court but, all that needed to be shown is that there was a departure from the rules and procedure for a fair trial. The effect of conducting proceedings in breach of right to fair hearing, in OVUNWO & ANOR VS. WOKO & ORS (2011) LPELR – 2841 (SC) P. 17, PARAS. A – E, His Lordship, Chukwuma Eneh, JSC held thus:
“The point must be made that a breach of fair hearing once substantive in a decision afflicts and clearly vitiates the whole decision and not just as to a part of it thereof. Once it is showed as it has been showed here that the decision of the Appellate High Court has been violated for breaching the appellants’ right to fair hearing it follows naturally without more that the lower Court’s resolution of issue 1 (one) cannot stand and so the whole decision collapses with it as it has no leg on which to stand. This is so as fair hearing is a fundamental Constitutional right as entrenched in the 1999 Constitution as amended. And the breach of fair hearing in any proceedings without more vitiates such proceedings in their entirety; it renders the entire proceedings null and void. See MILITARY GOVERNOR, IMO STATE VS. NWAUWA (1997) 2 NWLR (PT. 496) 675 at 708 per Iguh JSC.”
See WAGBATSOMA VS. FEDERAL REPUBLIC OF NIGERIA (2008) LPELR – 43722 (SC) PP. 29 – 30, PARA. D; DEDUWA & ORS VS. OKORODUDU & ORS (1976) LPELR (SC) PP. 31 – 32, PARAS. F – E and JSC VS. ISEDE & ANOR (2019) LPELR – 46956 (CA) PP. 52 – 53, PARAS. C – D. The issue of fair hearing is fundamental for it is well settled that any proceeding conducted in breach of a party’s fundamental right to fair hearing, which is guaranteed by Section 36 of the 1999 Constitution, renders the entire proceeding null and void. See also KOTOYE VS. C.B.N. (1989) 1 NWLR (PT. 98) 419 at 488, C – D, A.G. RIVERS STATE VS. UDE & ORS (2006) 17 NWLR (PT. 1008) 436; (2006) LPELR – 626 (SC) at 19, B – D and ODEDO VS. P.D.P. (2015) LPELR – 24738 (SC) at 38 – 39, C – B.PER UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the Adamawa State High Court, Yola presided over by Hafsat Abdulrahman, J., delivered on the 9th day of December, 2016.
The background facts on the part of the Appellant (defendant at the lower Court) are that the Respondents as plaintiffs commenced this suit vide their writ of summons filed on 8th March, 2016 with other accompanying originating processes and a motion for summary judgment. The matter was mentioned on the 22nd March, 2016 and adjourned in the absence of the Appellant to 25th April, 2016. The appellant upon being served with the respondents’ originating processes on 9th May, 2016 filed a motion for extension of time within which to file her Memorandum of Appearance, statement of defence and other accompanying processes. After three further adjournments, as a result of the absence of the appellant, the matter was adjourned to 21st July, 2016 for definite hearing. On the said date, the learned counsel to the Respondents asked that the matter be adjourned to enable the parties settle out of Court as there were moves to do so and the matter was adjourned to 12th October, 2016 for report of settlement. There was no record of Court’s sitting until 14th November, 2016. In the absence of the Appellant, the Respondents’ counsel proceeded to adopt his motion for summary judgment filed on 8th March, 2016 and the case was thereafter adjourned to 5th December, 2016 for Ruling. On the 9th of December, 2016, the trial Court entered judgment in favour of the Respondents.
Thereafter, the Appellant on 3rd April, 2017 filed a motion on Notice that the judgment be set aside but, the application was refused. All effort to have the judgment set aside, varied or stayed proved abortive. Dissatisfied with the judgment, the Appellant appealed to this Court vide his Notice of Appeal filed on 1st August, 2018 containing four grounds of appeal, from which the following two issues were formulated for the determination of the appeal thus:
1. “Whether the Respondents are entitled to the judgment before the lower Court in the light of the inadmissible evidence, fraud, misrepresentation and lack of fair hearing against the appellant? (Distilled from grounds 1, 2, 3 and 4 of the notice of appeal).
2. Whether the Respondents had proved their case before the trial Court in light of the inadmissible documents to warrant judgment entered in their favour.” (Distilled from ground 3 of the notice of appeal).
The Respondents on their part distilled the following two issues:
1. “Whether an indolent or indifferent Defendant can complain of lack of fair hearing. (Distilled from grounds 1, 2 and 4).
2. Whether Public Documents annexed to an affidavit required certification and whether evidences adduced during trial which was not challenged can be considered admitted.” (Distilled from ground 3).
In arguing the appeal, the learned counsel to the Appellant F.D. Nzarga Esq., relied on his brief of argument filed on 13/11/18, deemed properly filed and served on 11/6/19 as his argument in this appeal in urging us to allow same, set aside the decision of the trial Court and remit the case back to the High Court to be tried by another Judge. In arguing his first issue, it was submitted that the trial Court had on 21/7/16, adjourned the matter to 12/10/16 for possible settlement out of Court which fell through and that in the absence of the appellant’s counsel the motion for summary judgment ought not to have been moved irrespective of the defence raised by the appellant in her processes. It was submitted that the trial Court only relied on the Respondents’ argument and Exhibits tendered in determining the matter. The Exhibits were said to be inadmissible, which ought to have been either discountenanced or expunged. The Exhibits were said to be photocopies which did not comply with the provisions of the Evidence Act. The learned counsel submitted that the judgment sum of N7,760,760.80 granted to the Respondents was not correct as the sum owed the Respondents but, rather the sum of N4,532,551.98. Further, that the Appellant’s application to have the judgment set aside having been obtained under a false representation and fraud was refused by the trial Court. Also, another application to have the judgment sum varied to reflect the correct figure owed was also refused by the trial Court. It was contended that there was a breach of the appellant’s right to fair hearing. See OTAPO VS. SUNMONU (2011) ALL FWLR (PT. 576) 419 at 460, PARAS. G – H.
It was argued that the procedure adopted by the trial Court was wrong irrespective of the correctness of the decision. See MMSL & ANOR VS. OTEJU & ANOR (2005) 6 SCM 82 at 113 – 114. It was submitted that the issue of fair hearing goes to the jurisdiction of the lower Court, therefore that this Court can intervene to set aside the judgment. See OCHU VS. FEDERAL REPUBLIC OF NIGERIA (2011) ALL FWLR (PT. 503) 2008 at 2022, PARAS. D – A, (CA), PHCN VS. ALABI (2011) ALL FWLR (PT. 557) 698 at 710 PARAS. B – E, (CA), J.B. (NIG) PLC VS. OBASEKI (2014) ALL FWLR (PT. 757) 774 at 790, PARAS. C – D (CA), NDUKAUBA VS. KOLOMO (2005) ALL FWLR (PT. 248) 1602 at 1616 PARAS. C – D (SC) and TANKO VS. U.B.A. PLC (2011) (PT. 556) 408 at 420, PARA. E (SC).
It was submitted that the Appellant was not given fair hearing especially where the Appellant filed a statement of defence with other accompanying processes. It was argued that the matter was fixed for report of settlement, not hearing. Further, that the correctness of the decision arrived at is immaterial but the procedure followed in arriving at the decision. See F.B.N. PLC VS. T.S.A. INDUSTRIES (supra) at 677, PARAS. G – H. It was argued that fair hearing cannot be sacrificed for speedy trial. See TOLANI VS. KWARA STATE JUDICIAL SERVICE COMMISSION (2009) ALL FWLR (PT. 481) 880 at 907 TO 908, PARAS. E – G and DINGYADI VS. INEC (2010) ALL FWLR (PT. 550) 1204 at 1311, PARA. G. It was submitted that all that need be shown is that there has been a departure from the rules which permeated all judicial procedures. See UKA VS. IROLO (2002) FWLR (PT. 127) 1167 at 1199, PARAS. C – E and AMADI VS. NNPC (2000) FWLR (PT. 9) 1527 at 1554 – 1555, PARAS. H – B. It was submitted that the Court ought not to have adopted a strange procedure. Further, that the judgment of the trial Court occasioned a miscarriage of justice. We were urged to set aside the judgment for being a nullity. See OGBESHE VS. IDAM (2014) ALL FWLR (PT. 728) 992 at 1014, 1015, PARA. E.
In arguing issue two, the learned counsel recapped the claim at the trial Court. It was argued that the Respondents used the deposit slips used to pay money into the Appellant’s account to arrive at the judgment sum of N7,760,760.80 irrespective of the fact that there had been withdrawals from the same account. It was re-argued that the learned counsel to the Respondents ought not to have proceeded to adopt their motion for summary judgment behind the appellant’s back when the matter was fixed for report of settlement. Further, that the Exhibits relied upon by the Trial Court ought not to have been utilized as they did not comply with the requirement of the Evidence Act, being photocopies and electronically generated evidence. It was submitted that these Exhibits ought to have been expunged or discountenanced. Further, that Exhibit Mustapha “B” is a statement of account that was electronically generated and did not comply with Section 84 of the Evidence Act, 2011. It was submitted that the deposit slips tendered are secondary evidence from questionable custody. The amount given as owed was given as N4,532,551.98. It was concluded that the judgment was obtained by fraud and or misrepresentation and ought to be set aside.
The learned counsel to the Respondents O.B. Faison Esq., relied on his brief of argument filed on 10/12/18 but deemed properly filed on 11/6/19 in urging us to dismiss the appeal. In arguing his first issue, it was submitted that a party that seeks fair hearing in Court must also be fair in litigation and must respond to the procedural needs and requirements of litigation without applying any baits on the other party. See INAKOJU VS. ADELEKE (2007) 1 SCN, 1 at 161, 162, P. 17. The learned counsel to the Respondents agreed that the parties on 21st July, 2016 agreed to settle out of Court, page 354 – 355 of the printed records of appeal.
It was argued that the Appellant who stated that the amount claimed was incorrect failed to furnish the Court with the amount alleged to be correct which would be the appellant’s defence. It was submitted that no single Exhibit was annexed to the processes filed and served by the Appellant. It was submitted that the matter was adjourned at the instance of the Appellant on the following dates, 15/6/2016 to 21/6/2016, 30/6/2016, 21/7/2016, 12/10/16, 2/11/2016 and 14/11/2016. Further, that hearing Notices were issued and served on the Appellant and her counsel on these dates, they failed to attend Court and no reason was given for the absence. See BCC LTD VS. IMANI & SDLLTD/SHELL TRUSTEES LTD (2007) ALL FWLR (PT. 348) 806 at 817, PARAS. B – E S.C.
Further, that a party who has waived his right to fair hearing because of non-compliance with same procedural requirements cannot be heard to contend that his right was violated. SeeJEREMIAH VS. THE STATE (2013) LPELR – 21358. The learned counsel agreed that the documents tendered are secondary evidence to show payments made but argued that there was no contrary evidence provided by the Appellant. See ILORIN EAST LOCAL GOVERNMENT VS. ALASINRIN & ANOR (2012) LPELR – 8400. It was submitted that certification is not required on documents in possession of the adverse party. See JUKOK INT’L LTD VS. DIAMOND BANK PLC (2016) 6 NWLR (PT. 1507) 55. Without conceding that the documents were wrongly admitted in evidence, it was submitted that it would not result in a reversal of the judgment of the trial Court. See UNITED BANK FOR AFRICA PLC VS. MRS. VICTORIA FUNMILAYO OGUNDOKUN (2010) ALL FWLR (PT. 504) PAGE 1521 at 1525.
It was submitted that the Court adjourned the matter several times before proceeding to give judgment on 9th December, 2016. It was argued that the Appellant failed to challenge the evidence against her. See KOPEK CONSTRUCTION LTD. VS. EKISOLA (2010) ALL FWLR (PT. 219) PAGE 1039 and MALLE VS. ABUBAKAR (2007) ALL FWLR (PT. 360) PAGE 1575.
I have examined the issues formulated by the parties, they are the same but differently worded. I will utilize the issues as formulated by the Appellant in determining the appeal. The Appellant in her issue one alleged that the trial Court ought not to have relied on inadmissible evidence in entering judgment in favour of the Respondents and also alleged lack of fair hearing against the interest of the Appellant. It was made out that the judgment was fraudulently obtained and a misrepresentation of the facts before the trial court. From the records of Court, the Respondents took out their summons at the trial Court on 8th March, 2016 with their statement of claim, a list of their witnesses, their statements on oath and a list of documents to be relied upon. Also, filed on the same day is a motion on Notice brought pursuant to Order 22 (1) of the Adamawa State High Court (Civil Procedure) Rules, 2013 and under the inherent powers of the Lower Court.
There was a joint affidavit in support of the application with several annexures and a written address in support of their Affidavit. Thereafter, the Appellant on 9th May, 2016 filed a motion on Notice for extension of time within which the Applicant may file her Memorandum of Appearance, Statement of Defence and witness’ Statement on Oath, the processes having been filed and served on the Respondents a deeming order was also sought, an affidavit in support of the application and a written address were all included.
In the appellant’s statement of defence, the appellant disputed the amount claimed by the Respondents. On the same 9th May, 2016, the Appellant filed her written address in response to the Respondents’ application for summary judgment in which the Appellant also disputed the amount claimed and also urged the trial Court to order for amicable settlement between the parties considering the Banker/Customer relationship that existed between them. Thereafter, the matter was adjourned several times for mention including 9/6/16 when the learned counsel to the appellant O.B. Faison Esq., appeared for the Respondents, there was no appearance for the Appellant (as defendant), the learned counsel informed the Court that the Appellant had been served with the hearing Notice against that day. There was nothing on record to show that the learned trial judge confirmed (from its records) that the Appellant had been served, by whom and when, also who was served. Nothing was said about any affidavit of service from the bailiff of the Court. The learned counsel also informed the Court that the Appellant had responded by filing his statement of Defence and Counter Affidavit to the Respondents’ Motion for Summary Judgment. The learned counsel to the Respondents then asked for adjournment and the matter was adjourned on record to 21/6/2016 for further mention, the Court ordered that fresh hearing Notice be served on the Appellant. On 21/6/2016, counsel on both sides were in Court, the learned counsel to the Respondents O.B. Faison Esq., mentioned his pending motion, the trial Court without any reason on record adjourned the motion to 30/6/2016, for hearing, page 353 of the printed records of appeal. On 30/6/2016, the matter came up again, the learned counsel to the Respondents informed the trial Court that the Appellant was aware of the adjourned date to which the trial Court adjourned the matter for the last time to 21/7/2016 and ordered once again that fresh hearing Notice be served on the Appellant. From the records of Court, on 21/7/2016, the Respondents as plaintiffs were represented by M.B. Abdullahi Esq., who appeared with M.M. Modibbo Esq., while M. Oleku Esq., represented the Appellant as Defendant, page 354 – 355 of the printed records of appeal. The proceedings went thus:
“ABDULLAHI: I have a motion before the Court, but I have been approached by the defendant for possible settlement out of Court. I shall apply for a date to report to Court.
COURT: Case stands adjourned to 12/10/2016 for report of settlement.”
From the above proceedings, the adjournment sought to enable the parties settle out of Court was at the instance of the Respondents’ counsel. There is nothing in the record of Court to show that the Court sat on 12/10/2016 but the matter came up again on 14/11/2016, a date not given on record. On the said date, O.B. Faison Esq., for the Respondents was in Court, there was no representation for the absent Appellant, part of the proceedings on the said date went thus:
O.B. FAISON: “Matter is for commencement of hearing, defendants were served with the hearing Notice as ordered by the Court at its last sitting i.e. 2/11/2016, they are not in Court and no reason adduced for their lack of absent, there is proof of service on the defendant, on the 11/11/2016, learned counsel apply to proceed with the case. But have a motion in Court.”
Learned counsel to the Respondents proceeded to move his motion for summary judgment, at the end of which it was adjourned to 5/12/2016 for Ruling, pages 355 – 356 of the printed records of appeal, even though a judgment was delivered on 9/12/2016 in respect of the Motion, pages 357 – 362 of the records of appeal. On 14/11/16, when the motion was moved the trial Court did not confirm that the Appellant had been served the hearing Notice in respect of that particular day, which was not adjourned on record, apart from the learned counsel to the Respondent saying that the Appellant had been served on 11/11/2016, nothing was said about proof of service, who was served, when and where? Who effected service? These questions remain unanswered.
The learned counsel made reference to the order of the trial Court made on 2/11/206 that the Appellant be issued with fresh hearing Notice. There is nothing from the records of Court to show that the trial Court presided over this matter on that date. There is nothing to show that the matter was fixed for hearing against 14/11/16. On the last date the matter came up on 21/7/16, it was adjourned to 12/10/16 for report of settlement. The outcome of the proposed settlement out of Court is not on record. The date the matter was fixed for commencement of hearing is also not on record. The learned counsel to the Respondents had submitted that at the proceedings of 14/11/16 that he had applied that the matter should proceed to hearing on 11/11/16, there is nothing on record to show that this matter came up on 11/11/16 or had been adjourned to that date even if the Court did not sit.
The motion for summary judgment was not fixed for hearing, the trial Court ought not to have proceeded with it and entered judgment based on the motion in the absence of the appellant, moreso when there was no proof of service on the Appellant in respect of the date the motion was moved on 14/11/16. As at the time the motion was moved the Appellant had filed a counter affidavit accompanying her reply with a written address and a statement of defence.
The learned counsel had challenged some of the Exhibits admitted in evidence and utilized by the trial Court, to this I would say these Exhibits are of no moment where lack of fair hearing has been alleged. The procedure and proceedings at the trial Court are in issue. The issue of fair hearing or lack of it is so fundamental that a breach of it would render the proceedings a nullity and it does not matter whether the decision reached would have been the same if the principle had been observed. A hearing is said to be fair when all the parties in the dispute are given equal opportunity of hearing. If one of the parties is denied a hearing or not given an opportunity to be heard as has happened in this case, the hearing cannot qualify as fair, where the Appellant as defendant was not notified of the hearing of his case. Moreso, on a date the case should have been for report of settlement; the case was heard behind her back and that of her learned counsel having been represented by counsel on a previous date on 21/7/16 when it was fixed for report of settlement against 21/10/16. A trial should be conducted in line with legal rules and principles placed on ground to ensure that justice is done at all times following the laid down procedure. In ARIORI & ORS VS. ELEMO & ORS (1983) LPELR – 552 (SC) P. 44, PARA. A; his Lordship Obaseki, JSC simply defined “fair hearing” thus:
“Fair hearing, therefore, must mean a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause.”
Also, in INEC VS. MUSA (2003) LPELR – 24927 (SC) P. 94, PARAS. A –B, his Lordship Tobi, JSC defined fair hearing thus:
“Fair hearing, in essence, means giving equal opportunity to the parties to be heard in the litigation before the Court. Where parties are given opportunity to be heard, they cannot complain of breach of the fair hearing principles.”
See DANGOTE GEN. TEXTILE PRODUCTS LTD & ORS VS. HASCON ASSOCIATES (NIG) LTD & ANOR (2013) LPELR – 20665 (SC) P. 21, PARAS.
A – B, ASAKITIKPI VS. STATE (1993) LPELR – 572 (SC) P. 8, PARA. A; NTUKIDEM & ORS VS. OKO & ORS (1986) LPELR – 2075 (SC) P. 43, PARAS. D – F, UBN LTD & ANOR VS. NWAOKOLO (1995) LPELR – 3385 (SC) P. 27, PARAS. D – E and UGURU VS. STATE (2001) LPELR – 3325 (SC) PP. 13 – 14, PARAS. F – A. In the present appeal, the Appellant was heard before a final decision was taken in his matter, where he had indicated having a defence and had filed a statement of defence and responded in opposition to the motion on Notice for the summary judgment; she was not given an opportunity to be heard. The question is not whether injustice has been done because of the lack of fair hearing but, it is whether a party entitled to be heard before a decision is taken was given an opportunity of hearing. The Appellant was denied the opportunity of being heard, it rendered the hearing a nullity and it is bound to be set aside. The trial Court ought not to have allowed the motion for summary judgment to be moved behind the Appellant’s back when the matter was for report of settlement, when no report had been given from the records of Court. The stampeding procedure followed by the trial Court was wrong. The Court cannot in pursuit of quick disposal of a matter sacrifice the Constitutional principle of fair hearing at the altar of speedy hearing of cases when the speedy trial disregards the principle of fair hearing in availing the parties equal opportunity to be heard. See MOHAMMED VS. KANO N.A. (1968) LPELR – 25487 (SC) P. 3, PARAS. B – C, DARMA VS. ECOBANK (2017) LPELR – 41663 (SC) PP. 23 – 24, PARAS. E – C and YUSUF VS. STATE (2011) 6 – 7 SC (PT. V) P. 180. In such situation as has occurred here, it is not whether the same decision would have been reached had the Appellant been in Court but, all that needed to be shown is that there was a departure from the rules and procedure for a fair trial. The effect of conducting proceedings in breach of right to fair hearing, in OVUNWO & ANOR VS. WOKO & ORS (2011) LPELR – 2841 (SC) P. 17, PARAS. A – E, His Lordship, Chukwuma Eneh, JSC held thus:
“The point must be made that a breach of fair hearing once substantive in a decision afflicts and clearly vitiates the whole decision and not just as to a part of it thereof. Once it is showed as it has been showed here that the decision of the Appellate High Court has been violated for breaching the appellants’ right to fair hearing it follows naturally without more that the lower Court’s resolution of issue 1 (one) cannot stand and so the whole decision collapses with it as it has no leg on which to stand. This is so as fair hearing is a fundamental Constitutional right as entrenched in the 1999 Constitution as amended. And the breach of fair hearing in any proceedings without more vitiates such proceedings in their entirety; it renders the entire proceedings null and void. See MILITARY GOVERNOR, IMO STATE VS. NWAUWA (1997) 2 NWLR (PT. 496) 675 at 708 per Iguh JSC.”
See WAGBATSOMA VS. FEDERAL REPUBLIC OF NIGERIA (2008) LPELR – 43722 (SC) PP. 29 – 30, PARA. D; DEDUWA & ORS VS. OKORODUDU & ORS (1976) LPELR (SC) PP. 31 – 32, PARAS. F – E and JSC VS. ISEDE & ANOR (2019) LPELR – 46956 (CA) PP. 52 – 53, PARAS. C – D. The issue of fair hearing is fundamental for it is well settled that any proceeding conducted in breach of a party’s fundamental right to fair hearing, which is guaranteed by Section 36 of the 1999 Constitution, renders the entire proceeding null and void. See also KOTOYE VS. C.B.N. (1989) 1 NWLR (PT. 98) 419 at 488, C – D, A.G. RIVERS STATE VS. UDE & ORS (2006) 17 NWLR (PT. 1008) 436; (2006) LPELR – 626 (SC) at 19, B – D and ODEDO VS. P.D.P. (2015) LPELR – 24738 (SC) at 38 – 39, C – B.
I hold that the entire procedure leading to the challenged decision is a nullity; the proceedings were not fair therefore the judgment suffers the same fate and is bound to be set aside by this Court. The respondents were not entitled to the judgment of the trial Court; same is hereby set aside for being a nullity. Issue one is resolved in favour of the Appellant.
Issue two is whether the Respondents had proved their case before the trial Court in the light of the inadmissible documents to warrant judgment in their favour? Having held in resolution of issue one that the procedure adopted by the trial Court in arriving at its decision lacked fair hearing and having declared the said judgment a nullity and set same aside, it would be an academic exercise in futility that would not be of any benefit to any of the parties for this Court to determine whether the documents utilized by the trial Court were inadmissible. The judgment having been declared a nullity, documents utilized by the trial Court in arriving at its decision are immaterial and would not make any difference to the faulted procedure. Issue two has been taken care of by the resolution of issue one. Issue two is resolved in favour of the appellant.
Having resolved the two issues in favour of the Appellant, I hold that the appeal is meritorious, same is hereby allowed.
In sum, I hold that the judgment of the trial Court delivered in Suit No: ADSY/34/2016 on 9th December, 2016 is a nullity, same is hereby set aside. I order that the above suit is hereby remitted to the Chief Judge of Adamawa State for assignment to another judge other than Abdulrahman, J., for trial de novo. The hearing should be accelerated.
The parties are to bear their respective costs.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance, in draft the lead judgment just delivered by my learned brother Chidi Nwaoma Uwa JCA. I agree with my learned brother that the Court below erred when it proceeded to hear the matter on a date it was not fixed for hearing. For the reasons contained in the lead judgment, I too set aside the judgment of the Court below in Suit No. ADSY/34/2016 delivered on 9th December, 2016.
I abide by all orders contained in the lead judgment including the order as to costs.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
Appearances:
F.D. Nzarga, Esq., with him, S.N. Augustine, Esq. For Appellant(s)
O.B. Faison, Esq. For Respondent(s)
