STERLING BANK PLC v. P. A. OYOYO (2016)

STERLING BANK PLC v. P. A. OYOYO

(2016)LCN/8259(CA)

In The Court of Appeal of Nigeria

On Friday, the 4th day of March, 2016

CA/K/356/2013

RATIO

APPEAL: THE NOTICE OF APPEAL; WHETHER THE ONLY KNOWN AND LEGITIMATE WAY OR METHOD OF LAYING A COMPLIANT BEFORE AND HIGHER COURT OR TRIBUNAL IS BY FILING A NOTICE OF APPEAL

Now, it is settled law that the only known and legitimate way or method of laying a complaint before a higher Court or Tribunal, to show grievances of an aggrieved party against a decision taken by an inferior Court or Tribunal, is by filing a notice of appeal which contains the grounds of appeal against that decision. The notice of appeal is the ‘spinal cord’ of an appeal. It is the foundation upon which an appeal is based. It is the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. It contains what the subject matter of the appeal is – Aderibigbe Vs Abidoye (2009) 10 NWLR (Pt 1150) 592, Akpan Vs Bob (2010) 17 NWLR (Pt 1223) 421, Dingyadi Vs Independent National Electoral Commission (No 1) (2010) 18 NWLR (Pt 1224) 1. This present appeal is predicated on the amended notice of appeal of the Appellant dated the 10th of March, 2014 and filed on the 27th of March, 2014.
This notice of appeal is the foundation upon which the jurisdiction of this Court to entertain this appeal is predicated – Uwazurike Vs Attorney General Federation (2007) 8 NWLR (Pt 1035) 1, Odunze Vs Nwosu (2007) 13 NWLR (Pt 1050) 1 and First Bank of Nigeria Plc Vs Maiwada (2013) 5 NWLR (Pt 1348) 444. And the notice of appeal, just like pleadings, is binding on the parties – Federal Airport Authority of Nigeria Vs Greenstone Ltd (2009) 10 NWLR (Pt.1150) 624. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

CONSTITUTION LAW: THE RIGHT OF FAIR HEARING; THE DEFINITION OF THE TERM FAIR HEARING

This complaint touched on the doctrine of fair hearing. The term “fair hearing’ has been judicially interpreted to involve situations where, whether having regard to all the circumstances of a case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the tribunal was fair to all the parties to the proceedings. It is said to mean a trial. conducted according to all the legal rules formulated to ensure that justice is done to all the parties to a cause or matter ? Ariori Vs Elemo (1983) 1 SCNLR 1, Kuusu Vs Udom (1990) 1 NWLR (Pt 127) 421, Okafor Vs Attorney General, Anambra State (1991) 6 NWLR (Pt 200) 659 at 678, Military Governor of Imo State Vs Nwauwa (1997) 2 NWLR (Pt.490) 675, Bamgboye vs University of Ilorin (1999) 10 NWLR (Pt.622) 290, Kalu Vs State (2011) 4 NWLR (Pt 1238) 429. Fair hearing also postulates that parties have a right to be heard at every material stage of the proceedings – Ekuma Vs Silver Eagle Shipping Agencies PH Ltd (1987) 4 NWLR (Pt.65) 472 at 486, Agbahomovo Vs Eduyegbe (1999) 3 NWLR (Pt.594) 170, and Agbiti Vs Nigerian Navy (2011) 4 NWLR (Pt 1236) 175. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

CONSTITUTIONAL LAW: THE RIGHT OF FAIR HEARING: THE RULE OF FAIR HEARING AND THE IMPLICATION OF THE BREACH OF FAIR HEARING

It is trite that the rule of fair hearing is not a technical doctrine. It is one of substance.
The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given an opportunity of being heard. The Courts are unanimous that any breach of the right to fair hearing, particularly it trials, naturally vitiates such proceedings and renders the same null and void – Akoh Vs Abuh (1988) 3 NWLR (Pt.85) 696, Ceekay Traders Ltd Vs General Motors Co Ltd (1992) 2 NWLR (Pt.222) 132, Oyeyemi Vs Commissioner for Local Govemment, Kwara State (1992) 2 NWLR (Pt.226) 661, Military Governor of Imo State Vs Nwauwa (1997) 2 NWLR (Pt 490) 675, Olufeagba Vs Abdul-Raheem supra, Agip (Nig) Ltd Vs Agip Petroli International & Ors (2010) 5 NWLR (Pt 1187) 348, Agbiri Vs Nigerian Navy supra. Thus, once an appellate Court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the judgment entered is bound to be set aside – Kotoye Vs Central Bank of Nigeria (1989) 1 NWLR (Pt 98) 419, Olumesan Vs Ogundepo (1996) 2 NWLR (Pt.433) 628, Ogundoyin Vs Adeyemi (2001) 13 NWLR (Pt 730) 403, Olufeagba Vs Abdul-Raheem (2009) 18 NWLR (Pt 1173) 384, Fulani Vs Rufawa (2013) LPELR-CA/K/203/2011. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

AMINA AUDI WAMBAI Justice of The Court of Appeal of Nigeria

Between

STERLING BANK PLC Appellant(s)

AND

P. A. OYOYO (Practicing under the name & style of P. A. Oyoyo & Co.) Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Kano State in Suit No K/327/11 delivered by Honorable Justice Abdullahi Mahmoud Bayero on the 23rd of October, 2012. The Respondent, as plaintiff, commenced the action in the lower Court against the Appellant, as defendant and his claims were for:
i. 10% full professional fee of the judgment sum of N8,758,750.00k which amounts to N875,875.00k
ii. The sum of N5 Million being general damages for the series of inconveniences, negotiations, expenses incurred by the plaintiff and occasioned by the defendant in pursuance of this claim and for breach of contract.
iii. Interest on the sums aforementioned at Court rate interest of 10% from the date of judgment till the judgment sum is fully liquidated.
iv. The sum of N500,000.00 being plaintiff’s Solicitors professional fee for prosecuting this action.
v. Cost of filing this action.

The Respondent filed a statement of claim containing averments of facts of twenty four paragraphs in support of the claims and this was accompanied by the

written deposition of the Respondent on oath, list of documents to be relied on at trial and copies of the documents. The Respondent also filed two additional depositions on oath. The Appellant did not file a statement of defence, but it was represented by Counsel at the lower Court. Counsel to the Respondent informed the lower Court that they were desirous of settling the matter amicably and consequent on which the matter was adjourned on a number of occasions. When the matter came before the lower Court on the 23rd of October, 2012, both parties were represented by Counsel and the Respondent commenced trial by giving evidence in support of his case. The records show that at the conclusion of the examination in chief of the Respondent, Counsel to the Respondent urged the lower Court to enter judgment in favour of the Respondent pursuant to the provisions of Order 27 Rule 2 of the High Court of Kano State Civil Procedure Rules 1988 in default of pleadings. The lower Court acceded to the request and entered judgment in terms of the claims of the Respondent.

?Thereafter, the Appellant filed an application dated the 21st of December, 2012 praying the lower

Court to set aside the Judgment and to grant it an extension of time to file its statement of defence along with its witness statement on oath and all other requisite processes to conduct its defence in the matter. The lower Court took arguments on the motion and it dismissed same in a considered Ruling delivered on the 31st of December, 2012. On the 3rd of January, 2013 the Appellant caused its Counsel to file a notice of appeal dated the 2nd of January, 2013 against the judgment of the lower Court entered on the 23rd of October, 2012 and the notice of appeal contained one ground of appeal. The notice of appeal was subsequently amended with the leave of this Court and an amended notice of appeal containing two grounds of appeal and dated the 10th of March, 2014 was filed by the Appellant on the 27th of March, 2014.

?In arguing the appeal before this Court, Counsel to the Appellant filed a brief of arguments dated the 31st of March, 2014 on the 3rd of April, 2014. Counsel to the Respondent responded by filing a brief of arguments dated the 15th of December, 2014 and the brief of arguments was deemed properly filed on the 26th of January, 2015. Counsel to

the Appellant filed a reply brief of arguments dated the 10th of March, 2015 on the 12th of March, 2015 and the reply brief was deemed properly filed on the 9th of June, 2015. Counsel to the parties relied on and adopted the arguments in their respective brief of arguments at the hearing of the appeal.

Counsel to the Appellant distilled two issues for determination in this appeal. These were:
i. Whether the non-adjournment of the suit for final addresses of Counsel by the lower Court occasioned a miscarriage of justice against the Appellant.
ii. Whether from the facts of this case the Respondent was entitled to general damages as awarded.

In arguing the first issue for determination, Counsel to the Appellant referred to the provisions of Paragraphs 1-4 of Part A of the Kano State Practice Directions 2010 dealing with the filing of written addresses in suits tried on pleadings and Paragraph 1 of which states that “upon the close of the case of the parties in a suit, the suit shall be adjourned for final addresses to such a day as the Judge may direct? and stated that word used in the provision was “shall” and that this made it

mandatory for the lower Court to have adjourned the matter for final address after. the close of the Respondent’s case; he referred to the cases of Abubakar Vs Nasumu (No.1) (2012) 17 NWLR (Pt 1330) 407 and Onochie Vs Odogwu (2006) 6 NWLR (Pt 975) 65 on the meaning of the word “shall” when used in a statute. Counsel referred to the case of Kubau Vs Rilwanu (2014) 4 NWLR (Pt.1397) 284 or the importance of final address by a party and to the cases of Uhembe Vs Parkes (2012) 3 NWLR (Pt 1395) 475 and Nwankwo Vs Yar’Adua (2010) 12 NWLR (Pt.1209) 518 on the need to obey Rules of Court and Practice Directions and stated that it was obvious from the foregoing that it was mandatory for the lower Court to have adjourned the matter for final address at the conclusion of trial.

Counsel stated that considering the fact that the Appellant did not file a statement of defence, the only opportunity it had to put across its case on the points of law against the claims of the Respondent was the final written address and that the fact that the Appellant did not file a statement of defence did not foreclose its right to file a final address and he referred to the cases of

Ironbar Vs FMF (2009) 15 NWLR (Pt 1165) 506 and Faladu Vs Kwoi (2003) 9 NWLR (Pt 826) 643. Counsel stated that the failure of the lower Court to adjourn the matter for final addresses thus caused a miscarriage of justice as it foreclosed the only possibility it had to counter the claims of the Respondent and he referred to the case ofLarmie Vs DPMS Ltd (2005) 18 NWLR (Pt 958) 438 on the meaning of miscarriage of justice. Counsel urged this Court to resolve the first issue for determination in favour of the Appellant.

On the second issue for determination, Counsel stated that the claim of the Respondent for the sum of N5 Million as general damages was for breach of contract arising from the failure of the Appellant to pay him the 10% agreed professional fee in the sum N875,875.00 for judgment sum obtained and that the Respondent also claimed the sum of N500,000.00 as his Solicitors’ professional fees for the same reason and that after awarding the Respondent the sum of N875,875.00 claimed as professional fee, the lower Court went ahead to award the sums of N5 Million and N500,000.00. Counsel stated that the award of general damages in addition to the

ascertained sum for a breach of contract is wrong and unlawful and amounts to double compensation and he referred to the cases of NMA Vs MMA Inc (2010) 4 NWLR (Pt 1185) 613 and Total Nigeria Plc Vs Morkah (2002) 9 NWLR (Pt 773) 492, amongst others. Counsel urged this Court to also resolve this issue for determination in favour of the Appellant and to allow the appeal.

?In his response, Counsel to the Respondent adopted the two issues for determination formulated by the Counsel to the Appellant. In arguing the first issue for determination, Counsel stated that the Appellant had more than ample opportunity to file its defence to the matter before the lower Court but refused to utilize the opportunity and that the lower Court was thus right in refusing to exercise its discretion to allow the Appellant file its statement of defence out of time after judgment had been entered. Counsel stated that the facts of this case as played out on the records support the refusal of the lower Court to exercise its discretion in favour of the Appellant to file its defence out of time and that it was trite law that once a lower Court exercises its discretion in accordance

with the law, an appellate Court will not disturb same merely on the ground that it would have exercised the discretion differently were it to be in the shoes of the lower Court. Counsel stated that any party seeking the exercise of the discretionary powers of a Court must bring his case within the provisions of the Rules on which he purports to make his application and the Court will always refuse to exercise its discretionary powers when the Rules are not obeyed and he referred to the cases of Oyegun Vs Nzeribe (2010) All FWLR (Pt 516) 425 and Newswatch Communication Vs Atta (2006) All FWLR (Pt 318) 580, amongst others. Counsel urged this Court to resolve the first issue for determination against the Appellant.

On the second issue for determination, Counsel stated that the Appellant merely entered appearance and did not file a statement of defence and did not thus join issues with the plaintiff and that as such the claims of the Respondent before the lower Court were uncontested and that the case therefore fell within the ambit of Order 25 Rule 2 read in conjunction with Order 27 Rule 2 of the Kano State Civil Procedure Rules 1988 which empowered the

lower Court to enter judgment in default of pleadings and that these justify the judgment entered in favour of the Respondent by the lower Court. Counsel stated that the provisions of Order 27 Rule 2 were unambiguous and do not envisage or provide for the filing of a final address by the parties before judgment can be entered and that the Court cannot read into the provisions a meaning which cannot be described as the intention of the legislature and he relied on the case of Uhumwagbo Vs Okojie (1989) 5 NWLR (Pt. 122) 471. Counsel stated that the entire arguments of the Counsel to the Appellant on the strength of provisions of Part A of the Kano State High Court Practice Directions 2010 were irrelevant, and that even if they were relevant, they were not applicable in the instant case because the provisions of the Practice Directions were only applicable when parties have closed their cases and this presupposes a situation where both parties have filed their pleadings and led evidence in support thereof. Counsel stated that since the circumstances in the instant case fell within the provisions of Order 27 Rule 2 of the Kano State Civil Procedure Rules 1988

which did not envisage the filing of final addresses before entry of judgment, there cannot have been a denial of a right of address and that all the case law authorities cited by the Counsel to the Appellant were irrelevant and inapplicable.

On the issue of damages, Counsel stated that the purpose of general damages in any issue involving breach of contract is to, as much as possible, put the party in a position he would have been had there been no breach of contract and that the pertinent question in this matter was whether if the Appellant pays the Respondent his legal fees of N875,875.00 now, can it be honestly said that the Respondent has been placed in the same position he would have been had the fees been paid when it was due? Counsel stated that the obvious answer is No, because by the current trend of inflation at 10% per annum, the same sum cannot purchase the same goods today that it would have purchased two years ago and that as such the lower Court was justified to have awarded damages. Counsel urged this Court to resolve the second issue for determination also in favour of the Respondent and to dismiss the appeal.

?Now, it is settled law

that the only known and legitimate way or method of laying a complaint before a higher Court or Tribunal, to show grievances of an aggrieved party against a decision taken by an inferior Court or Tribunal, is by filing a notice of appeal which contains the grounds of appeal against that decision. The notice of appeal is the ‘spinal cord’ of an appeal. It is the foundation upon which an appeal is based. It is the originating process which sets the ball rolling for the proper, valid and lawful commencement of an appeal. It contains what the subject matter of the appeal is – Aderibigbe Vs Abidoye (2009) 10 NWLR (Pt 1150) 592, Akpan Vs Bob (2010) 17 NWLR (Pt 1223) 421, Dingyadi Vs Independent National Electoral Commission (No 1) (2010) 18 NWLR (Pt 1224) 1. This present appeal is predicated on the amended notice of appeal of the Appellant dated the 10th of March, 2014 and filed on the 27th of March, 2014.
This notice of appeal is the foundation upon which the jurisdiction of this Court to entertain this appeal is predicated – Uwazurike Vs Attorney General Federation (2007) 8 NWLR (Pt 1035) 1, Odunze Vs Nwosu (2007) 13 NWLR (Pt 1050) 1 and First Bank of Nigeria

Plc Vs Maiwada (2013) 5 NWLR (Pt 1348) 444. And the notice of appeal, just like pleadings, is binding on the parties – Federal Airport Authority of Nigeria Vs Greenstone Ltd (2009) 10 NWLR (Pt.1150) 624. Reading through the amended notice of appeal, the subject matter of this appeal is the judgment of lower Court delivered on the 23rd of October, 2012, and not the Ruling of the 31st of December, 2012 wherein the lower Court dismissed the application of the Appellant to set aside the judgment and for enlargement of time to file a statement of defence. The entire arguments of the Counsel to the Respondent on the first issue for determination were directed at justifying the refusal of the lower Court to accede to the application of the Appellant. The arguments were not directed at the judgment entered by the lower Court on the 23rd of October, 2012. They are thus of no relevance in this appeal and will be completely discountenanced.

From the records of appeal, on the 23rd of October, 2012, after recording the appearances of the Counsel to the parties, the proceedings before the lower Court went thus:
?Mr Duru- we have a witness in Court.
PW1-

Christian, speaks English and affirmed. My names are Barrister P. A. Oyoyo of 22b Post Office Road, Kano. on the 20-06-11, I made a statement on oath. I can identify it. I signed it. Yes this is the statement. I urge the Court to accept it as my evidence.
Court-Granted
PW1 (cont)- On 06-06-12, I made an additional statement on oath. I signed it. Yes, this is the document. I want the Court to accept it as my evidence in this case.
Court – Granted
PW1(cont)- On 06-06-12, I made an additional statement on oath. I signed it. Yes, this is the document. I want the Court to accept it as my statement on oath (additional evidence).
Court-Granted.
PW1 – In my statement on oath, I made reference to 11 documents which I pleaded. They are with my Solicitor. Yes, these are the documents – 5 copies and 6 originals. The 5 copies are letters sent from my office to defendant. The originals are with the defendant.
Mr. Duru – I apply to tender the 11 documents in evidence arranged serially and pleaded.
Court – Any Objection
Muktar – No objection
Court – The 11 documents arranged serially duly identified by PW1 carrying different dates and 5

out of which are copies of letters sent by the law firm P.A. Oyoyo & Co (the plaintiff) are admitted into evidence and marked Exhibits C1-C11
Mr. Duru- That is the case for the plaintiff and we urge the Court to enter judgment in favour of the plaintiff pursuant to Order 27 Rules 2 of High Court Civil Procedure Rules 1988.
Court- Pursuant to Order 27 Rule 2 of High Court Civil Procedure Rule 1988 judgment is hereby entered in favour of the plaintiff against the defendant as per statement of claim as contained in the writ of summons dated 12-06-11.?

?It is obvious from the excerpt of the proceedings that it was after the commencement of trial and after the close of the evidence-in-chief of the Respondents that his Counsel applied for judgment in default of pleadings, and the lower Court entered judgment as prayed. The records of appeal do not show that the lower Court allowed room for the cross-examination of the Respondent by the Counsel to the Appellant and/or even gave the Counsel to the Appellant an opportunity of a hearing on the application of the Counsel to the Respondent before it entered judgment. It is elementary that after

the commencement of trial and the leading of evidence by a party, a trial Court can no longer enter judgment in default of pleadings. This is because a defendant who, though did not file pleadings, is entitled to be heard at the trial and cannot be shut out on the ground of lack of pleadings. In Faladu Vs Kwoi (2003) 9 NWLR (Pt.826) 643 at 657 D-E, the Court of Appeal put the matter thus:
a defendant who failed to file pleading is still entitled to a hearing. He could, for example decide to rely on a point of law inherent in the plaintiff?s case without the necessity of filing pleadings and adducing evidence. He may rest his case on the plaintiff?s case and simply wish to address the trial Court on issues tendered in the plaintiff?s case. All that is permitted by law.?
The statement of law was reiterated by the Court of Appeal in Onah Vs Okom (2011) LPELR-CA/C/22/20089. Additionally, once trial commences and evidence is led, the judgment of a trial Court must be based on the evidence led before it – Ibrahim Vs Dangwaram (1997) 1 NWLR (Pt 497) 87, Nigerian Westminister Dredging and Maritime Ltd Vs Smoot (2011)

LPELR-CA/B/191/2006. Thus, once trial commences and a party has led evidence in proof of his case, the provisions Order 27 Rule 2 of the Kano State High Court Civil Procedure Rules 1988 are no longer applicable and proceeding from then on must be governed by the provisions of Order 37 of Kano State High Court Civil Procedure Rules 1988 which provide for
“Trial Proceedings in General” and as expanded by the provisions of Paragraphs 1-4 of Part A of the Kano State Practice Directions 2010. These provisions make room for cross-examination of witnesses and the filing of written addresses. Contrary to the submission of Counsel to the Respondent, by these provisions, the right of address is not only applicable where both parties give evidence. It is applicable even where only one of the parties leads evidence and it is not foreclosed by failure of a party to file pleadings. This point was made in the case of Ironbar Vs Federal Mortgage Finance (2009) 15 NWLR (Pt 1165) 506 where the Court of Appeal in considering the provisions of Order 37 of the High Court of Cross River State (Civil Procedure) Rules stated thus:
?Order 37 Rule 17 of the High

Court of Cross River State (Civil Procedure) Rules does not preclude a defendant who did not call evidence from addressing the Court. Rather, the import of the provisions of Order 37 Rules 17, 18 and 19 of the Rules is that the plaintiff will be the first to address the Court if the defendant does not adduce evidence at the close of the plaintiff?s case. Then the defendant?s address, which is naturally directed at what the defendant considers the flaws in the plaintiff?s case both in law and facts, follows. And the plaintiff has no right to reply to the defendant?s address. At the end of address of parties, judgment is delivered by the Court. In the instant case, the appellant?s argument that the trial Court erred when it allowed the respondent to address the Court is baseless.?

The complaint of the Appellant under the first issue for determination was on failure of the lower Court to allow or adjourn the matter for final written addresses before entering judgment, after taking the evidence of the Respondent. This complaint touched on the doctrine of fair hearing. The term “fair hearing’ has been judicially interpreted

to involve situations where, whether having regard to all the circumstances of a case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the tribunal was fair to all the parties to the proceedings. It is said to mean a trial. conducted according to all the legal rules formulated to ensure that justice is done to all the parties to a cause or matter ? Ariori Vs Elemo (1983) 1 SCNLR 1, Kuusu Vs Udom (1990) 1 NWLR (Pt 127) 421, Okafor Vs Attorney General, Anambra State (1991) 6 NWLR (Pt 200) 659 at 678, Military Governor of Imo State Vs Nwauwa (1997) 2 NWLR (Pt.490) 675, Bamgboye vs University of Ilorin (1999) 10 NWLR (Pt.622) 290, Kalu Vs State (2011) 4 NWLR (Pt 1238) 429. Fair hearing also postulates that parties have a right to be heard at every material stage of the proceedings – Ekuma Vs Silver Eagle Shipping Agencies PH Ltd (1987) 4 NWLR (Pt.65) 472 at 486, Agbahomovo Vs Eduyegbe (1999) 3 NWLR (Pt.594) 170, and Agbiti Vs Nigerian Navy (2011) 4 NWLR (Pt 1236) 175.

?Without doubt, one of the legal rules formulated to ensure that justice is done to all the parties to a cause or matter in a

trial is the right of a party to a case to address the Court after close of evidence. The hearing of addresses by every Court established by the Constitution of the Federal Republic of Nigeria 1999 is of constitutional importance by virtue of Section 294 (1) of the Constitution which recognizes the right of parties to a suit to render addresses before judgment is delivered. The Section reads:
?Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.?
This point was made in the cases of Ndu Vs State (1990) 7 NWLR (Pt 164) 550 at 560, Amough Vs Zaki, (1998) 3 NWLR (Pt. 542) 483, Offor Vs State (1999) 12 NWLR (Pt. 632) 608. As stated earlier, Order 37 Rule 15 of the High Court of Kano Civil Procedure Rules 1988, the rules that guided the procedure in the lower Court in this matter, and as expanded by the provisions of Paragraphs 1-4 of Part A of the Kano State Practice Directions 2010,

also made provisions for addresses to be rendered by parties after close of evidence. Address of counsel forms part of a party’s case and failure to hear the address of a party, however overwhelming the evidence on one side, taints the trial because in many cases, it is after the addresses that the Court finds that the law on the issue fought is not in favour of the evidence. The totality of a case heard entails not only the evidence but also the addresses of counsel. Thus, the Courts have held that the denial of a party’s Counsel of the opportunity of addressing the Court, where established and proved, is not a mere irregularity but a defect in proceedings which strikes at the right of the party to fair hearing – Obodo Vs Olomu (1987) 3 NWLR (Pt 59) 111, Salami Vs Odogun (1991) 2 NWLR (Pt.173) 291 at 301, Oyekan Vs Akinrinwa (1996) 7 NWLR (Pt.459) 128, First Bank of Nigeria Plc Vs Ejikeme (1996) 7 NWLR (Pt 462) 597, Duba Vs Saleh (1997) 1 NWLR (Pt 488) 502, Eagle Construction Ltd Vs Onibugadu (1998) 1 NWLR (Pt 533) 231, Kalu Vs State (2011) 4 NWLR (Pt 1238) 429,Kabau Vs Rilwanu (2014) 4 NWLR (Pt.1397) 284.

?The Courts have consistently stated that the right

of a person to fair hearing is so fundamental to our concept of justice that it can neither be waived nor taken away by a statute, whether expressly or by implication and it cannot be compromised in any way by any person or authority neither can its breach be acquiesced to – Ariori Vs Elemo supra, Pan African Bank Ltd Vs Ubani (1999) 13 NWLR (Pt. 633) 166, Bamgboye vs University of Ilorin supra, Kenon Vs Tekam (2001) 14 NWLR (Pt 732) 12, Afonja Community Bank (Nig) Ltd Vs Akpan (2002) 16 NWLR (Pt 792) 154, Olufeagba Vs Abdul-Raheem (2009) 18 NWLR (Pt 1173) 384, First Bank of Nigeria Plc Vs TSA Industries Ltd (2010) 15 NWLR (Pt.1216) 247. What the lower Court did in instant case, at the prompting of the Counsel to the Respondent, was to take away the right of the Appellant to deliver a final address. The lower Court possessed no such powers.

?It is trite that the rule of fair hearing is not a technical doctrine. It is one of substance.
The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given an opportunity of being heard. The Courts are unanimous

that any breach of the right to fair hearing, particularly it trials, naturally vitiates such proceedings and renders the same null and void – Akoh Vs Abuh (1988) 3 NWLR (Pt.85) 696, Ceekay Traders Ltd Vs General Motors Co Ltd (1992) 2 NWLR (Pt.222) 132, Oyeyemi Vs Commissioner for Local Govemment, Kwara State (1992) 2 NWLR (Pt.226) 661, Military Governor of Imo State Vs Nwauwa (1997) 2 NWLR (Pt 490) 675, Olufeagba Vs Abdul-Raheem supra, Agip (Nig) Ltd Vs Agip Petroli International & Ors (2010) 5 NWLR (Pt 1187) 348, Agbiri Vs Nigerian Navy supra. Thus, once an appellate Court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the judgment entered is bound to be set aside – Kotoye Vs Central Bank of Nigeria (1989) 1 NWLR (Pt 98) 419, Olumesan Vs Ogundepo (1996) 2 NWLR (Pt.433) 628, Ogundoyin Vs Adeyemi (2001) 13 NWLR (Pt 730) 403, Olufeagba Vs Abdul-Raheem (2009) 18 NWLR (Pt 1173) 384, Fulani Vs Rufawa (2013) LPELR-CA/K/203/2011.

Counsel to the Appellant underpinned the complaint on failure of the lower Court to give the Appellant an opportunity to file a final

address as having occasioned a miscarriage of justice. The Courts recognize that what amounts to miscarriage of justice varies in relation to particular facts of a case and that to reach the conclusion that a miscarriage of justice has taken place does not require a finding that a different result necessarily would have been reached in the proceedings said to be affected by the miscarriage. It is enough if what is done is not justice according to law ?Adigun Vs Attorney General, Oyo State (1987) 1 NWLR (Pt 53) 678, State Vs Ajie (2000) 11 NWLR (pt 678) 434, Adebayo Vs Attorney General Ogun State (2008) 7 NWLR (Pt.1085) 201. The term “justice” means proper administration of laws; the constant and perpetual disposition of legal matters at disputes to render every man his due. In Obajinmi Vs Adedeji (2008) 3 NWLR (Pt 1073) 1, the Court of Appeal stated that “justice means fair treatment, and the justice in any case demands that the competing rights of the parties must be taken into consideration and balanced in such a way that justice is not only done but must be seen to be done.”

?It cannot be contested in the circumstances of this case that the act of

the lower Court in entering judgment in favour of the Respondent after the examination-in-chief of the Respondent, as a witness, without adjourning and giving the Appellant the opportunity of rendering a final address occasioned a miscarriage of justice in this matter. The judgment entered by the lower Court is thus liable to be set aside. The first issue for determination is resolved in favour of the Appellant.

This takes us to the second issue for determination i.e. whether or not the lower Court was correct to have granted the claims of the Respondent for general damages. Now, the conclusion derivable from the finding that the lower Court breached the right of fair hearing of the Appellant on the first issue for determination is that the entire proceedings before the lower Court are null and void. The position of the Supreme Court is that where such a conclusion is arrived at by an appellate Court in the cause of considering a matter, to proceed thereafter to consider the merits of the decision arrived at by such a proceeding is a futile exercise. The point was succinctly made by Tobi,JSC in Orugbo Vs Una (2002) 16 NWLR (Pt.792) 175 at 199 A-D thus:<br< p=””

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“The fair hearing principle entrenched in the Constitution is so fundamental in the judicial process or the administration of justice that breach of it will vitiate or nullify the whole proceedings, and a party cannot be heard to say that the proceedings were properly conducted and should be saved because of such proper conduction. Once an appellate Court comes to the conclusion that there is a breach of the principle of fair hearing, the proceedings cannot be salvaged as they are null and void ab initio. After all, fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision.
Accordingly, where a Court arrives at a correct decision in breach of the principle of fair hearing, an appellate Court will throw out the correct decision in favour of the breach of fair hearing.”
Similarly, in Idakwo Vs Ejiga (2002) 13 NWLR (Pt 783) 156, Ayoola, JSC at page 165 E-H stated thus:
“The question of fairness of a proceeding is quite separate from the question of the merit of the trial Court’s decision. When a question of fairness of hearing arises in a case the only purpose that could have been served

by the appellate Court considering, albeit in a restricted manner, issue of the merits of the case, in my opinion, is to see whether the result of the case would have been the same even if the breach of the principle of fair hearing had not occurred. Whether that exercise will serve any useful purpose will normally depend on the nature of the breach. In my opinion, whether it will be a matter of speculation whether the same decision would have been arrived at had a hearing not tainted by unfairness taken place, an equity into the merits is a futile exercise. I would even go as far as saying that an unfair method cannot produce a fair result.”
Similar statements were made by the Supreme Court in Olufeagba Vs Abdul-Raheem supra and in Torri Vs National Park Service of Nigeria supra. In First Bank of Nigeria Plc Vs TSA Industries Ltd supra, the Supreme Court opined that any judgment or ruling reached in breach of the right of fair hearing will not be allowed to stand on appeal irrespective of the merits of the case.

?The resolution of the second issue for determination in this appeal requires this Court to delve somewhat into the merits of this matter

as made out in the proceedings before the lower Court. This Court will decline to do so as it will amount to an exercise in futility. This Court will thus rest its consideration of this appeal on the resolution of the first issue for determination only.

In conclusion, this Court finds and holds that this appeal has merit and it hereby succeeds. The judgment of the Kano State High Court in Suit No K/327/2011 delivered by Honorable Justice Abdullahi Mahmoud Bayero on the 23rd of October, 2012 is hereby set aside. This case is remitted to the Chief Judge of the Kano State High Court for commencement de novo. The parties shall bear their respective costs of this appeal. These shall be the orders of this Court.

ISAIAH OLUFEMI AKEJU, J.C.A.: I read the judgment of my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU JCA before it was delivered. I agree with the reasoning of my learned brother and the resolution of the issues. I find merit in the appeal and it is allowed. I abide by the consequential order.

AMINA AUDI WAMBAI, J.C.A.: I have read the lead Judgment delivered by my learned brother, HABEEB

A. O. ABIRU, JCA.

He has profoundly dealt with the issues raised in this appeal. I adopt his reasoning and conclusion and have nothing useful to add.

?The appeal has merit and it is hereby allowed by me. The Judgment of the Lower Court is hereby set aside and the case remitted to the Hon. Chief Judge of Kano State to be re-assigned for hearing afresh.

Appearances

Aisha MohammedFor Appellant

AND

M. N. DuruFor Respondent