SHARON PROPERTIES LIMITED v. PAUL B. NIGERIA PLC (2014)

SHARON PROPERTIES LIMITED v. PAUL B. NIGERIA PLC

(2014)LCN/7422(CA)

In The Court of Appeal of Nigeria

On Thursday, the 17th day of July, 2014

CA/A/333/2011

RATIO

APPEAL: PRELIMINARY OBJECTION; THE CONDITION FOR A PRELIMINARY OBJECTION RAISED IN THE RESPONDEDNT’S BRIEF TO BEAR CONSEQUENCE AND BE CONSIDERED BY THE COURT, WHETHER A PRELIMINARY OBJECTION PROPERLY RAISED SHOULD BE DETERMINED FIRST AND THE PRIMARY PURPOSE OF A PRELIMINARY OBJECTION

It is a settled principle of law that a Preliminary Objection raised in the Respondent’s brief is of no consequence and cannot be considered by the Court, unless it has been moved by the Respondent at the hearing of the appeal, otherwise it is deemed abandoned.

Another established principle of law on Preliminary Objection is that once it is properly raised and moved by the Respondent, it should be determined first by the court before proceeding to hear or consider the merits of an appeal. See Kotoye vs. Saraki (1991) 8 NWLR (Pt.211) 638; Goji vs. Ewete (2001) 15 NWLR (Pt.736) 273 at 280; Odu vs. Agbor-Hemeson (2003) 1 NWLR (Pt.802) 624; U.B.A. PLC. vs. A.C.B. (Nig.) Ltd. (2005) 12 NWLR (pt.939) 232 at 259; Ngige vs. Obi (2006) 14 NWLR (1999) at 222.

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO FAIR HEARING; THE IMPORTANCE OF THE ISSUE OF FAIR HEARING TO ANY MATTER
It is trite that the issue of fair hearing is fundamental and goes to the root of any matter. This is so because a party in a trial is constitutionally allowed to ventilate his views in any matter, civil or criminal, against him and where it is established that a party had been denied his right to be heard, the entire proceeding becomes vitiated and a nullity. per. ABUBAKAR JEGA ABDULKADIR, J.C.A.

COURT: COURT’S DISCRETION; WHETHER THE COURT MUST EXERCISE ITS DISCRETION TO ADJOURN CASES FIXED FOR HEARING JUDICIALLY AND JUDICIOUSLY AND THE DUTY OF THE COURT TO DO JUSTICE TO BOTH PARTIES IN ADJOURNING A CASE
It is a settled legal principle and our law reports are replete with a plethora of authorities that an adjournment of cases fixed for hearing are not granted as a matter of course but may be granted at the discretion of the court, which discretion must be exercised judicially and judiciously and that where a refusal of adjournment would cause or result in a serious injustice to the party requesting it, the adjournment should only be refused if that is the only way to do justice to the other party. See the cases of: Erinfolarin v. S.G.B. Nig Ltd (2008) 7 NWLR (Pt.1086) 306; NITEL PIC vs. MAYAKI (2007) 4 NWLR (Pt.1025) 173; M.F.A vs. INONGHA (2005) 7 NWLR (Pt.923) 1.

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO FAIR HEARING; WHETHER ALL PERSON IS ENTITLED TO FAIR HEARING UNDER THE CONSTITUTION AND THE DUTY OF THE COURT TO PROVIDE ENABLING ENVIRONMENT FOR THE ENFORCEMENT AND OBLIGATION OF THE RIGHT WITHIN REASONABLE TIME
It is correct that section 36 (1) of the 1999 Constitution (as amended) gives all persons including the Appellants the fundamental right to fair hearing in the determination of their civil rights and obligations. This right however is expected to be enjoyed and exercised within a reasonable time. Put differently, the courts are only expected to provide the enabling environment for the enforcement and obligation of the right within a reasonable time.
Section 36(1) of the 1999 Constitution, as amended, provides as follows:
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”
See the case of S.C.C (NIG) LTD VS. OUR LINE LTD (1995) NWLR (PT.395) 364.
In the case of Chijioke vs. SOETAN supra 214 paras D-E, M.D. Muhammad J.C.A, observed that: “…it is true that the 1999 constitution in Section 36(1) gives the Appellant the right to fair hearing. The lingering misapprehension must be corrected outrightly. The constitution only creates an opportunity for the Appellant to be heard before a decision is taken against his interests. The opportunity does not last forever and is enjoyed subject to the Rules of Court and the dictates of justice: where the Appellant chose to enjoy his opportunity of being heard as guaranteed by the Constitution responsively (sic) and in a manner that constituted injustice to his adversary, he lost and rightfully too, the right and opportunity. Justice is not for the Appellant alone. It is his as much as it is for the respondent and the court…” per. ABUBAKAR JEGA ABDULKADIR, J.C.A.

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO FAIR HEARING; WHETHER A PARTY FAILS TO TAKE ADVANTAGE OF THE OPPORTUNITY TO PRESENT HIS CASE WITHIN THE CONFINES OF THE LAW CANNOT BE HEARD TO COMPLAIN THAT HIS RIGHT TO FAIR HEARING HAS BEEN BREACHED

In Bill Construction Co Ltd vs. Imani & Sons Ltd (2006) 19 NWLR (Pt.1031) 1 at 14, Onnoghen JSC, held thus:
“It is settled law that where a party is given ample opportunity to present his case within the confines of the law but he chooses not to utilize same, he cannot later be heard to complain that his right to fair hearing has thereby been breached.”
Also, in the case of Akinduro vs. Alaya (2007) ALL FWLR (Pt.381) 1653 at 1672-1673, Tobi JSC stated inter alia:
“I have said it in the past and I will say it again that the duty of the court is to create the environment for fair hearing and it is the decision of a party to take advantage of the environment created. A party cannot blame the court if he fails to take advantage of the environment created by the court. I see such a situation in this matter. The Appellant should not blame the Court of Appeal. He has himself to blame.”
per. ABUBAKAR JEGA ABDULKADIR, J.C.A.

COURT: RULES OF COURT; WHETHER THE COURT CANNOT GO OUTSIDE THE RULES OF COURT AND DO THINGS THE WAY THEY LIKE

It is trite and must be emphasized that Rules of court must prima facie be obeyed because they provide the guidelines for the conduct of litigation.
In the case of Bhojsons vs. Daniel Kalio (2006) 5 NWLR (Pt.973} 330 at 355, Niki Tobi JSC opined thus:
“Courts of law, like umpires in a game cannot go outside the rules of court and do things the way they like.” per. ABUBAKAR JEGA ABDULKADIR, J.C.A.

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT OF FAIR HEARING; WHETHER A DENIAL OF THE RIGHT TO ADDRESS IS A DENIAL OF FAIR HEARING

JUSTICES

ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria

MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria

TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria

Between

SHARON PROPERTIES LIMITED Appellant(s)

AND

PAUL B. NIGERIA PLC Respondent(s)

ABUBAKAR JEGA ABDULKADIR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of Hon. Justice Valentine B. Ashi, of the High court of the Federal Capital Territory, sitting at Zuba, (hereinafter to be called the Lower Court), delivered on the 12th of April,2011.
The facts of this case, as can be gleaned from the Record of Appeal, are that the Respondent, (as Plaintiff at the Lower Court) by way of Originating Summons, claimed against the Appellant, who was the Defendant at the Lower Court, the following reliefs:
1) An order enforcing the arbitral award dated the 10th of June, 2010, pursuant to the contract between the parties herein dated the 3rd of September, 2004 and arbitral proceedings on disputes arising there under;
2) An order that the defendant bear the cost of this suit consisting of the cost of filing and the cost of the execution and legal fees of this suit in the sum of N5,000,000.00 (Five Million Naira).
3) And for such further or other orders as this Honourable Court may deem fit to make in the circumstance.
The summons is supported by an 18 paragraphed affidavit, deposed to by one Engr. Ade Oluwanyi; the Managing Director of the Respondent company, to which were annexed Exhibits A – E.
Exhibit A, dated the 3rd of September, 2004 is a copy of a Construction agreement between the Respondent and the Appellant;
Exhibit B is a copy of an Arbitral Award to the Respondent against the Appellant, by one Prof. Akin Akindoyeni as Sole Arbitrator;
Exhibit C is a copy of letter publishing the award as per Exhibit B above;
Exhibits D and E are a copy each of a corrigendum to Exhibit B, as well as a letter publishing same, both of which were made subsequent to the award by the same sole arbitrator.
The Respondent’s case as stated in the Affidavit in support of the summons is that on the 3rd of September, 2004 the parties entered into a construction agreement. Pursuant to Clause 19 of the agreement, the parties were to refer any dispute arising there from to an arbitrator, who was to be appointed by the president of the Society for Construction Industry Arbitrators.
A dispute there after arose as regards the final amount due and payable to the Respondent and in line with Clause 19, the dispute went to arbitration with Prof. Akin Akindoyeni, as sole arbitrator.
The Respondent was successful in the arbitration and was awarded the sum of N30,151,687.80 (Thirty Million, One Hundred and Fifty one Thousand, six Hundred and Eighty seven Naira, Eighty Kobo), excluding interests. The Appellant however failed and refused to pay the sums awarded under the award, hence this suit at the Lower Court.
For the Appellant, a 12 paragraphed Counter Affidavit to the originating Summons was filed on the 22nd of March 2011, deposed to by one Julius Bruce, the Chief Operations officer of the Appellant, to which were attached Exhibits A and B. Exhibit A is the Appellant’s letter of complaint written by the Appellant to the Arbitrator, and which was copied to the Respondent, Exhibit B, is the list of repairs done by the Appellant within the 6 months error detection period. The Appellant deposed to the fact that it had applied to the High court of the FCT to have the arbitral award set aside. I cannot find the said CTC of the court processes, attached to the Counter Affidavit.
The story of the Appellant is that it was not given a level playing ground to present its case and consequent upon noticing the fundamental irregularities perpetrated by the Appellant and the Arbitrator, it refused to participate in the arbitration proceedings.
In a judgment delivered on the 12th of April, 2011, the Lower Court found for the Respondent and held inter alia that the Appellant pay to the Respondent, the sums awarded under the awards. At pages 62-63 of the Records, the Lower Court held:
“The Defendant is hereby ordered to pay the sums of money stated hereunder to the plaintiff here of, pursuant to the arbitral award made on the 10th day of June, 2010, coupled with a corrigendum there to published on the 29th of June, 2010, which were together made by Prof. Akin Akindoyeni, the sole Arbitrator; vide a construction agreement entered into between the plaintiff and the Defendant on the 3rd of September, 2004:
I. N23,672,688.86 as outstanding proceeds of work clone for the defendant by the plaintiff under the construction agreement under reference;
II. N650,998.94 as loss of earnings on the said sum;
III. 11% interest on the total of above two heads, from the 14th of November 2009 until final liquidation;
IV. One half of a total of N750,000.00 as the defendant’s share of the arbitrator’s fees payable by the defendant to the plaintiff, with an interest of 11% thereon from the 10th of June, 2010;
V. One half of a total of N156,000 as the defendant’s share of sundry administrative and logistic expenses, payable by the defendant to the plaintiff, with an interest of 11% thereon, from the 10th of June, 2010 until final liquidation;
VI. N5,000,000 as cost of legal fees for the arbitral proceedings, payable to the plaintiff by the defendant with 11% interest there on, from the 10th of June, 2010 until final liquidation;
VII. The sum of N500,000 as cost of this action to be paid to the plaintiff by the defendant.
The Appellant is piqued by this decision and has appealed to this Honourable court vide a Notice of Appeal filed on the 16th of June 2011, upon seven grounds.
The grounds of appeal, shorn of their particulars are here under reproduced:
GROUNDS OF APPEAL
GROUND ONE:
The learned trial judge erred in law when he adjourned this case for final judgment and thereby delivered judgment without allowing parties to adopt their respective written submissions or heard them on oral submissions.
GROUND TWO:
The Learned Trial Judge erred in law when he ordered that the Appellant (Defendant at the Lower Court) should not file any more affidavit without the leave of court after the proceedings of 22nd of March, 2011 thereby denying the Appellant fair hearing.
GROUND THREE:
The Learned Trial Judge erred in law when he discountenanced all the facts raised in the counter affidavit to the Originating Summons filed by the Appellants notwithstanding the fact deposed to the Appellant in that counter affidavit.
GROUND FOUR:
The Learned Trial Judge erred in law when His Lordship held that the Appellant’s counter affidavit and written submissions will not be considered because the Appellant failed to challenge the award within the statutory period.
GROUND FIVE:
The Learned trial judge erred in law when he agreed to invoke provisions of section 31 in favour of the Respondent and held that the Defendant’s objection to the enforcement of the award has to do with issues that are outside the capacity of the court as presently constituted.
GROUND SIX:
The Learned Trial Judge misdirected himself when he held that the Appellant did not deny knowledge of the publication of the award.
GROUND SEVEN:
The Learned Trial Judge erred in law when he held that the Appellant’s objection is dismissed as being misconceived and accordingly the Appellant (Defendant at the Lower Court) should pay to the Respondent the cost of Five Million Naira being legal fees of the Respondent’s counsel for the arbitral proceedings and sum of Five Hundred Thousand Naira being cost for this action at the Lower Court.

The appeal was heard on the 3rd of June, 2014. Learned Counsel for the Appellant, in urging this Court to allow the appeal adopted and relied on the Appellant’s brief of argument dated 7th February, 2012 and filed on the 10th of February, 2012 as well as the Appellant’s Reply brief dated and filed on the 24th of February, 2014.
Learned Counsel for the Respondent Israel Usman, in urging this Court to dismiss the appeal adopted and retied on the Respondent’s brief of argument dated and filed on the 9th of July, 2013 but deemed properly filed on the 19h of November, 2013. Four issues were formulated for the determination of the appeal in the Appellant’s brief. They are:
(1) Whether or not the Appellant was given a fair hearing by the Learned Trial Judge in the determination of this case.
(2) Whether or not the failure/neglect of the Learned, Trial Judge to invoke the provisions of Section 31 of the Arbitration and Conciliation Act, 1988 in the determination of this case has not occasioned a miscarriage of justice.
(3) Whether or not in the totality of the 12 paragraphed counter Affidavit of the Appellant to the originating summons of the Respondent, the Appellant could be said to have admitted knowledge of the publication of the award.
(4) Whether or not the Learned Trial Judge exercised his discretion judicially and judiciously in the award of N5,000,000.00 (Five Million Naira) cost being legal fees of the Respondent and N500,000.00 (Five Hundred Thousand Naira) cost of action against the Appellant.

The Respondent adopted the above issues as the issues calling for determination in this appeal.
The Respondent in its brief of argument dated and fifed on the 9/7/2013 incorporated a Notice of Preliminary Objection. The preliminary Objection is at Page 3 Paragraph 3.1 of the said brief of argument.
However, before delving into the issues formulated for determination, it is pertinent to dispose of the preliminary objection first.

THE PRELIMINARY OBJECTION
In paragraph 3.1 of the its brief, the Respondent challenged the competency of Grounds 5 and 7 of the Appellant’s Notice of Appeal, upon the following two grounds:
1. Ground five, complaining that section 31(2) of the Arbitration and Conciliation Act, 2004 was not invoked was not raised at the Lower Court and no leave of Court was sought to raise tame before this Honourable Court.
2. Ground seven complaining of the award of separate sums of N5,000,000.00 and N500,000.00 as legal fees was not raised at the Lower Court and no leave of Court was sought to raise same before this Honourable Court.

This position of the law is in accord with prudence since the object or primary purpose of a Preliminary Objection is to determine or terminate the proceedings in limine at the point it was raised because it challenges the competence of the court to entertain the appeal on the ground it was premised. Where it succeeds and is upheld by the court that would bring the proceedings in which it was raised to an end as there could no longer be any other competent live issues in the case.
See these cases: Onyemeh vs. Egbuchulam (1996) 5 NWLR (Pt.448) 255; NEPA vs. Ango (2001) 15 NWLR (Pt.737) 627; Jaiyeola vs. Abioye (2003) 4 NWLR (Pt.810) 397; A.N.P.P. vs. R.O.A.S.S.D. (2005) 6 NWLR (Pt.920) 140; Adelakan vs. Ecu-Line NV (2006) ALL FWLR (Pt.321) 1213 at 1231: (2006) 12 NWLR (Pt.993) 33.
At the hearing of the instant appeal, learned counsel for the Respondent, Mr. Usman did not move the Preliminary Objection he raised in his brief. He merely adopted his brief of argument and urged us to dismiss the appeal.
In the case of Nsirim vs. Nsirim (1990) 3 NWLR (Pt.138) 285 at 297, the apex Court, per Obaseki JSC (as he then was), opined as follows:
‘While a Notice of Objection may be given in a brief, it does not dispense with the need for the Respondent to move the Court at the oral hearing for the relief prayed for- The preliminary objection not having been raised and argued at the oral hearing is deemed abandoned…”
Also, in the case of Onochie vs. Odogwu (2006) 6 NWLR (pt.975) 65, Ogbuagu JSC, opined at page 79 as follows:
“I note that at the hearing of this appeal, the learned Counsel for the Respondents did not apply/seek leave of the court before the hearing of the appeal to move the said objection. The consequence is that the Preliminary objection is deemed by the court as having been abandoned.”

On the authorities set out earlier on the need for such Preliminary Objection to be moved at the hearing and the consequence of failure or omission to do so, the learned counsel is deemed to have abandoned the Preliminary objection. All submissions contained in the Respondent’s brief on the Preliminary Objection are also deemed abandoned thereby and would be discountenanced.
See also MAGIT vs. University of Agriculture Makurdi (2005) 19 NWLR (Pt.959) 211.
The Notice of Preliminary objection contained in the Respondent’s brief of argument dated and filed on the 9th of July, 2013 at page 3 Paragraph 3.1 is deemed abandoned and is struck out.
CONSIDERATION OF ISSUES

ISSUE ONE:
“Whether or not the Appellant was given a fair hearing by the Learned Trial Judge in the determination of this case.”
In arguing this issue, it is submitted for the Appellant that the Learned Trial Judge was in grave error when the judgment of 12th April, 2011 was delivered without allowing the parties to adopt their respective written addresses or give oral adumbration during the proceedings of 29th March 2011. Reliance was placed on order 36, Rule 5 0f the High court of the FCT (Civil Procedure) Rules, 2004.
In furtherance to this point, Learned Counsel for the Appellant relied on the case of Udogu vs. Egwuata (1994) 3 NWLR (330) 120 at 128 and submitted that a court must not reach a decision on issues brought by parties for adjudication without hearing the parties. Where a trial court decides an issue without hearing the parties, the appellate court must set aside the decision and flush out the proceedings.
It is submitted that the order made by the trial Judge that no more affidavits are to be filed after the proceedings of 22nd March, 2011 is a denial of fair hearing to the Appellant.
It is further submitted that the Appellant was denied the opportunity to canvass points that would buttress its case and that amounted to a grave injustice. The cases of Madagali L.G. vs. N.P.C. (1998) 11 NWLR (Pt.572) 66 at 74 and Njiokwuemeni vs. Ochei (2004) 15 NWLR (Pt.895) 196 at 221 were referred to.
This Court is urged to resolve this issue in favour of the Appellant.
Conversely, it is submitted for the Respondent that the Appellant cannot be heard to complain of lack of fair hearing at the Lower Court because there were several adjournments on his account and that the adjournment for judgment should be considered in the light of the fact that the case had been adjourned for definite hearing for three times on account of the Appellant.
It is also submitted that the trial Judge did not disallow the Appellant from filing any further affidavit. It is submitted that it was only after the case had been adjourned severally because of the late filing of the Counter affidavit that the learned trial Judge ruled that pursuant to order 8 Rule 27 of the High Court of the FCT civil procedure Rules 2004, no I more affidavits should be filed without leave of court. He referred to page 52 of the Records.
This court is urged to resolve this issue in faovur of the Respondent.
In its reply, it is submitted for the Appellant that unlike a prerogative writ and a Fundamental Right application, there is no provision either in the High Court of the FCT Rules or in the Arbitration Rules which stipulates that leave of court is required to file a further affidavit in an Originating Summons.
It is submitted also that neither Order 8 Rule 27 nor order I Rule 4 of the High court of the FCT (Civil Procedure) Rules 2004 said anything relevant to the issue canvassed by the Respondent.
Furthermore, learned counsel for the Appellant submitted that any decision of a court that determines a person’s civil rights and obligations without giving the person whose rights and obligations were so determined the opportunity of making representations must be declared void on appeal. Reliance was placed on these authorities: Nkwocha v. MTN (2008) 11 NWLR (Pt.1099) 439; N.D.I.C. v. IFEDIEGWU (2003) 1 NWLR (Pt.800) 56; U.B.N. PLC vs. CFAO (1997) 11 NWLR (Pt.527) 118; Ekiyor v. Bomor (1999) 9 NWLR (Pt.519) 1.
This Court is again urged to resolve this issue in favour of the Appellant.
It is trite that the issue of fair hearing is fundamental and goes to the root of any matter. This is so because a party in a trial is constitutionally allowed to ventilate his views in any matter, civil or criminal, against him and where it is established that a party had been denied his right to be heard, the entire proceeding becomes vitiated and a nullity.
In the instant case, the Appellant’s contention is that the learned trial Judge was in grave error to have given judgment without allowing counsel to adopt their various written addresses.
To better appreciate this situation, it is important to look at the history of this case.
On the 16/02/2011, when the Lower Court resumed sitting, there was no appearance for the Appellant and the case was adjourned to the 15th of March, 2011 for hearing of the Originating Summons. At the 15th of March, 2011, the Appellant was represented. However, the matter could not go on because the Appellant was not ready and despite objections from the Respondent, the Lower Court adjourned to the 22nd of March, 2011 for hearing. On that date, the matter could still not go on because the Appellant served the Respondent with the counter Affidavit that morning and he needed time to react to it. The matter was again adjourned to the 28th of March 2011 for hearing and the learned trial Judge ruled that no more affidavits are to be filed without leave of Court. 0n that date, the matter could not go on and was further adjourned to 28th of April, 2011 for Ruling.
However, on the 12th of April, Judgment was delivered on this case. See pages 49-52 of the Record of Appeal.
I have laboriously laid out the chequered history of this case. The poser then will be and is: can it truly be said in the given circumstances already laid out that the foreclosure of the Appellant’s defence amounted to a denial of fair hearing?
It is a settled legal principle and our law reports are replete with a plethora of authorities that an adjournment of cases fixed for hearing are not granted as a matter of course but may be granted at the discretion of the court, which discretion must be exercised judicially and judiciously and that where a refusal of adjournment would cause or result in a serious injustice to the party requesting it, the adjournment should only be refused if that is the only way to do justice to the other party. See the cases of: Erinfolarin v. S.G.B. Nig Ltd (2008) 7 NWLR (Pt.1086) 306; NITEL PIC vs. MAYAKI (2007) 4 NWLR (Pt.1025) 173; M.F.A vs. INONGHA (2005) 7 NWLR (Pt.923) 1.

The Courts have also held that in adjourning a case, justice must be done to both parties and it is in the interest of justice that the hearing of a case should not be delayed unduly.
Hence unnecessary adjournments which will lead to delays and miscarriage of justice would be refused. See the case of Chijioke v. Soetan (2006) 10 NWLR (Pt.990) 179.
It is correct that section 36 (1) of the 1999 Constitution (as amended) gives all persons including the Appellants the fundamental right to fair hearing in the determination of their civil rights and obligations. This right however is expected to be enjoyed and exercised within a reasonable time. Put differently, the courts are only expected to provide the enabling environment for the enforcement and obligation of the right within a reasonable time.
Section 36(1) of the 1999 Constitution, as amended, provides as follows:
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”
See the case of S.C.C (NIG) LTD VS. OUR LINE LTD (1995) NWLR (PT.395) 364.
In the case of Chijioke vs. SOETAN supra 214 paras D-E, M.D. Muhammad J.C.A, observed that:
“…it is true that the 1999 constitution in Section 36(1) gives the Appellant the right to fair hearing. The lingering misapprehension must be corrected outrightly. The constitution only creates an opportunity for the Appellant to be heard before a decision is taken against his interests. The opportunity does not last forever and is enjoyed subject to the Rules of Court and the dictates of justice: where the Appellant chose to enjoy his opportunity of being heard as guaranteed by the Constitution responsively (sic) and in a manner that constituted injustice to his adversary, he lost and rightfully too, the right and opportunity. Justice is not for the Appellant alone. It is his as much as it is for the respondent and the court…”

In the case of B & B Gas & oil services (Nig) Ltd vs. Timothy Garde Age & Ors (2007) ALL FWLR (Pt.380) 1595, the Appellants were refused time to address the trial court because the court had entertained enough applications for adjournment. This Court, sitting in Benin, per Ngwuta JCA, held that the trial court ought to have granted an adjournment to the Appellants to address the court because all previous adjournments did not relate to the issue of address. It held further that address of counsel is an aspect of the case and a denial of the right to address is a denial of fair hearing
Applying the above cited case, mutatis mutandis, to the instant case; I agree with counsel for the Appellant that the learned trial Judge erred in not allowing Counsel to orally adopt and adumbrate on their written addresses.
I also endorse the holding of Oguntade J.C.A. (as he then was) in the case of Madagali L.G. vs. NPC (1998) 11 NWLR (Pt.572) 66 at 74 to wit:
“True that Final address is not equivalent before the tribunal, but it is in my view a disparagement of the time honoured practice of allowing parties to deliver the final addresses before judgment to hold that a final address could not have tilted the scale one way or another……A good address directs the attention of the court to the weakness or absence of quality in the opponent’s case… I do not think it was right that the
Lower Tribunal elected to place itself at so obvious a disadvantage by not calling for an address. It is my view therefore that the lower tribunal therefore was in error not to have called for final addresses.”
In the instant case the court below proceeded suo motu to decide the case without hearing the parties. A court of law deciding a case without hearing the litigants? That is doubtlessly outrageous. It is a fundamental defect fatal to adjudication and I so hold.
The need for oral hearing of parties is sanctioned by the rules of the Lower Court. Order 36 Rule 5 of the High court of the FCT Civil Procedure Rules, 2004 provides as follows:
“Oral argument of not more than 30 minutes shall be allowed for each party to adopt and emphasize and clarify the written addresses already filed.”
At the hearing of any case, it is incumbent upon the Courts to allow parties to adopt and orally adumbrate their addresses. Counsel are, however, free to adopt and rely on their addresses at the hearing and say nothing else. This procedure has become necessary in view of the fact that counsel might have become aware of new authorities relevant to their cases after they might have filed their briefs. And by appearing in court on the day of hearing, counsel has the opportunity to draw court’s attention to any new authority. It is also an opportunity for the court to ask counsel any question it may wish in connection with the case and before arriving at its decision.
Where however, a case is called for hearing and the parties have been duly served with the notice of hearing, and the litigant or counsel fails to appear to present oral argument even though addresses have been filed by the parties, then the case will be treated as having been argued.
Judges in the Courts of law do not just wake up and start to write judgments merely because addresses have been filed by the parties without giving them the opportunity to orally ventilate their views. That in my view will amount to no hearing as it is contrary to the Rules above. I have no hesitation therefore in coming to the conclusion that the purported judgment of the court below was a nullity having been based on a case which was never heard. The parties were obviously not given a hearing by the court below before delivering its judgment. That is a fundamental and undisputed requirement for a valid adjudication and the breach was fatal.
Both the 1999 Constitution of the Federal Republic of Nigeria, as amended, at section 36 subsection (1) and Order 36 Rule 5 of the High Court of the FCT Civil Procedure Rules, 2004 when read together enjoin that at the hearing of a matter, parties must be given the opportunity to address the Court for at least 30 minutes each. This important condition was not met when the Lower Court proceeded to determine the case and give judgment.
There can be no doubt that the Court below committed a serious error. Since the parties were denied the right of fair hearing as guaranteed by the Constitution the judgment of that Court is a nullity and I have no hesitation to declare it null and void.
This issue is therefore resolved in favour of the Appellant.
With the resolution of the first issue which goes to the root of the matter since it relates to fair hearing, it renders the remaining issues otiose.
In conclusion, this appeal is meritorious and it is accordingly allowed.
The Judgment of the Federal capital Territory High Court, Abuja, sitting at Zuba delivered by Hon. Justice valentine B. Ashi in suit No.: FCT/ABJ/CV/1067/2011 on the 12th of April, 2011 is hereby set aside.
It is ordered that the suit with No.FCT/ABJ/CV/1067/2011, be sent back to the Chief Judge of the Federal Capital Territory High Court for reassignment and trial de novo by another Judge of that court other than Hon. Justice Valentine B. Ashi.
I make no order as to costs.

MOORE A. A. ADUMEIN, J.C.A.: I read before now the judgment of my learned brother just delivered. My Lord, Hon. Justice Abubakar Jega Abdulkadir, JCA has in a unique way dealt with the issues in this appeal. I have nothing useful to add to the reasoning and conclusions of my learned brother.
For reasons given by my learned brother, I also allow this appeal.
I abide by all the orders made by my learned brother, including the order as to costs.

TANI YUSUF HASSAN, J.C.A.: I have had the opportunity of reading the lead Judgment delivered by my learned brother Abubakar Jega Abdulkadir PJCA. I am in agreement leading to the conclusion in this Appeal.
I abide by the order made as to cost.

Appearances

Mr. B. J. Akomolafe, with Mr. E. Jalto and Mr. J. O. OkosunFor Appellant

AND

Mr. I. UsmanFor Respondent