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THE DIV POLICE OFFICER “C” DIV NORTH BANK MAKURDI & ORS v. SHIKAAN & ANOR (2020)

THE DIV POLICE OFFICER “C” DIV NORTH BANK MAKURDI & ORS v. SHIKAAN & ANOR

(2020)LCN/15596(CA)

In The Court of Appeal

(MAKURDI JUDICIAL DIVISION)

On Monday, July 13, 2020

CA/MK/212/2017(R)

Before Our Lordships:

Adamu Jauro Justice of the Court of Appeal

Onyekachi Aja Otisi Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Between

1. THE DIVISIONAL POLICE OFFICER, “C” DIV NORTH BANK MAKURDI 2. COMMISSIONER OF POLICE, BENUE STATE 3. THE DIVISIONAL POLICE OFFICER, JALINGO DIV TARABA STATE 4. COMMISSIONER OF POLICE, TARABA STATE 5. THE NIGERIA POLICE FORCE APPELANT(S)

And

1. MR. PETER SHIKAAN 2. ALH. NASIR HASSAN D. NAS RESPONDENT(S)

 

RATIO

Meaning of Fair Hearing

Fair hearing requires that the trial must be conducted according to all applicable legal rules with a view to ensuring that justice is done to all parties before the Court; Arije v Arije (2018) LPELR-44193(SC); Orugbo & Anor v. Una (2002) LPELR-2778(SC); Ariori v Elemo (1983) LPELR-552(SC), (1983) 1 SC 81. Fair hearing implies that what is right and fair to all concerned has been done and is seen to be so. Flowing from the concept of fair hearing is that each party to a cause must be given the opportunity to put forward his case or defense freely and fully; PDP & Ors v Ezeonwuka & Anor (2017) LPELR-42563(SC)ONYEKACHI AJA OTISI, J.C.A. 

 Breach of right to fair hearing in a proceeding

The law is trite that any proceedings conducted in breach of the right to fair hearing are a nullity and liable to be set aside; Kalu V State (2017) LPELR-42101(SC).  ONYEKACHI AJA OTISI, J.C.A. 

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): This appeal was lodged against the decision of the Federal High Court of Nigeria, sitting at Makurdi, Coram Hassan Dikko, J, delivered on February 11, 2017 in favour of the 1st Respondent in respect of his application for the enforcement of his fundamental human rights.

The facts leading to this appeal can be summarized in this manner: The 2nd Respondent herein, who was the 1st Respondent at the trial Court, is a businessman that deals in the bulk sale of rice. He had an agreement with the 1st Respondent herein, who was the applicant at the trial Court, for the bulk sale of rice. He initially sold two trucks of rice to the 1st Respondent, worth N4,242,143.09, which the 1st Respondent paid, leaving a balance of N230,000.00 to be defrayed subsequently. The 2nd Respondent made a further supply of three trucks of rice to the 1st Respondent, worth N6,287,461.03, for which the parties agreed would be paid for by the 1st Respondent herein within 2 weeks from the date of purchase.

​The 1st Respondent failed to meet up with this obligation. It was the case of the 2nd Respondent that he made several demands to the 1st Respondent for his payment. But rather than pay the outstanding sum, the 2nd Respondent said he began to receive threats from the 1st Respondent. When he perceived a criminal breach of trust on the part of the 1st Respondent, the 2nd Respondent made a complaint to the police first at Jalingo, Taraba State and subsequently at Makurdi, Benue State. The 1st Respondent was arrested at Makurdi and subsequently handed over to the police at Jalingo, Taraba State.

​The case as presented by the 1st Respondent was that the 2nd Respondent, in an attempt to recover the debt owed to him by the 1st Respondent following their civil transaction, resorted to using the Appellants both in the Benue State and Taraba State Police Commands. Their officers and men arrested and detained the 1st Respondent, first in Makurdi, Benue State and later in Taraba State for 6 days, during which periods of incarceration he also suffered intimidation, threats and oppression. The 1st Respondent deposed that no crime was disclosed to him all through the period of his ordeal. Upon his release on bail, the 1st Respondent filed an action at the Federal High Court, sitting at Makurdi, Benue State seeking to enforce his fundamental rights, which he alleged were infringed upon.

The 3rd and 6th respondents therein who are the 3rd and 5th Appellants herein, filed a Counter Affidavit. The 2nd Respondent herein as the 1st respondent at the trial Court filed his Counter Affidavit. The 4th to 5th Respondents who were the 3rd to 5th Appellants herein also filed their Counter Affidavit. At the conclusion of hearing, arguments of Counsel for the parties, the trial Court in its considered judgment granted the application of the 1st Respondent herein and awarded damages of the sum of N1, 000.00.00 against the Appellants herein and the 2nd Respondent, jointly and severally. Aggrieved by the decision of the trial Court, the Appellants lodged this appeal on 27/3/2017 on five grounds of appeal.

​The Appellants filed their Brief on 28/7/2017. When the matter came up for hearing on 11/6/2020, S.O. Idikwu, Esq., who appeared for the 1st Respondent, informed the Court that the 1st Respondent was not served with the processes. He appeared before the Court out of respect, having been served with a hearing notice. The Court then ordered that both the 1st and 2nd Respondents be served personally with the processes and adjourned the matter to 23/6/2020. The 1st Respondent was served as ordered, following which he filed a Brief on 23/6/2020. But the 2nd Respondent had filed no Brief.

The record of Court revealed that one Grace Barnabas, Secretary of F.O. Obanye & Co in Jalingo was served on 31/7/2017 with the Appellants’ Brief for the 2nd Respondent. The connection of F.O. Obanye & Co. with the 2nd Respondent was not clear. However, upon the order of Court made on 11/6/2020, the 2nd Respondent was now served with the Appellants’ Brief personally on 17/6/2020, which he acknowledged. The record of Court also revealed that the 2nd Respondent was served personally on 19/6/2020 at about 12.43pm with hearing notice for the hearing of the appeal.

​Although the Court proceeded on 23/6/2020 to hear arguments on the appeal from Dr. Agada Elachi, who appeared with Akosu Terfa, Esq., for the Appellants, and from S.O. Idikwu, Esq., who appeared with Cleopatra Atsor, Esq., and G.M. Aize, Esq., for the 1st Respondent, from the record of Court and by the Rules of this Court, the 2nd Respondent was still within time to file his respondent’s brief in response to the Appellants’ Brief. By Order 19 Rule 4 of the Court of Appeal Rules, 2016, a respondent shall within 30 days of the service of the appellant’s brief on him file the respondent’s brief. This simply means that if the 1st Respondent was served on 17/6/2020 with the Appellants’ Brief, he was within his time to respond as at 23/6/2020 when this appeal was argued.
Fair hearing requires that the trial must be conducted according to all applicable legal rules with a view to ensuring that justice is done to all parties before the Court; Arije v Arije (2018) LPELR-44193(SC); Orugbo & Anor v. Una (2002) LPELR-2778(SC); Ariori v Elemo (1983) LPELR-552(SC), (1983) 1 SC 81. Fair hearing implies that what is right and fair to all concerned has been done and is seen to be so. Flowing from the concept of fair hearing is that each party to a cause must be given the opportunity to put forward his case or defense freely and fully; PDP & Ors v Ezeonwuka & Anor (2017) LPELR-42563(SC). I am mindful of the fact that the judgment of the lower Court was against the Appellants and the 2nd Respondent jointly and severally. It would be therefore be unfair and manifestly contrary to fair hearing to hear and determine the appeal without giving the 2nd Respondent an opportunity to respond to the complaints of the Appellants, more so when, by the extant Rules of this Court, he was still within time to respond to the Appellants’ Brief.
The law is trite that any proceedings conducted in breach of the right to fair hearing are a nullity and liable to be set aside; Kalu V State (2017) LPELR-42101(SC). That is the only order to make in this circumstance.

Accordingly, the proceedings of 23/6/2020, as well as the order of this Court made on 23/6/2020 reserving the appeal for judgment are hereby set aside.
The appeal is adjourned to 14/9/2020 for hearing. Fresh hearing notice is to issue on the 2nd Respondent.

ADAMU JAURO, J.C.A.: I was opportuned to have read in draft the ruling Just delivered by my learned brother, ONYEKACHI A. OTISI JCA. I am in agreement with the reasoning and conclusion contained therein to the effect that the appeal was prematurely argued on 23-6-2020 when the 1st Respondent was within time to file his Brief having been served on 17-6-2020.

I adopt the ruling as mine, in setting aside the proceedings of 23-6-2020. I abide by all consequential orders made therein.

JOSEPH EYO EKANEM, J.C.A.: I read before now the ruling of my learned brother, Otisi, JCA and I agree with the reasoning and conclusion therein that the proceedings and the order of 23/6/2020 ought to be set aside. As at that date, the appeal was not ripe for hearing as the 2nd respondent was still within time to file his brief of argument. I therefore set aside the proceedings and the order of this Court made on 23/6/2020.
I abide by the consequential orders made in the ruling of my learned brother.

Appearances:

Dr. Agada Elachi, with him, Akosu Terfa, Esq. For Appellant(s)

S.O. Idikwu, Esq., with him, Cleopatra Atsor, Esq. and G.M. Aize, Esq. – for the 1st Respondent
No appearance for the 2nd Respondent For Respondent(s)