THE STATE v. ISYAKU ABDULLAHI & ANOR (2016)

THE STATE v. ISYAKU ABDULLAHI & ANOR

(2016)LCN/8261(CA)

In The Court of Appeal of Nigeria

On Friday, the 4th day of March, 2016

CA/K/73/C/2015

RATIO

PRACTICE AND PROCEDURE: WHETHER THE ADDRESSES OF COUNSEL IS AN ESSENTIAL PART OF A PARTY’S CASE
The law is trite, the addresses of counsel is an essential part of a party’s case. It is the duty of the Court to afford parties opportunity of addressing it by way of explaining the essential issues in favour of a party after close of cases of both sides. In the instant case, there was the need to have allowed counsel to file a reply to the points of law raised by the respondent?s address. There was also the need to allow counsel adumbrate the favourable points in favour of the appellant. The failure to give the appellant the opportunity to file the reply occasioned a miscarriage of justice as result of the denial of fair hearing to the appellant. Okoebor v. Police Council (2003) 12 NWLR (Pt. 834) 44. per. IBRAHIM SHATA BDLIYA, J.C.A.

CONSTITUTIONAL LAW: WHETHER THE PROVISION OF SECTION 35 OF THE 1999 CONSTITUTION DEALS WITH RIGHT TO PRIVATE DEFENCES

Without much ado the provisions of Section 35 of the 1999 Constitution (altered) deals with right to private defences. It has nothing to do with the right to address a Court of law in a criminal proceedings. To appreciate the import and or purport of the provisions of Section 180(f) of the Evidence Act, 2011, (amended) same reproduced hereunder:
“180. Every person charged with an offence shall be a competent witness for the defence at every stage of the proceeding whether the person so charged is charged solely or jointly with any other person provided that:
(f) in cases where the right of reply depends upon the question, whether evidence has been called for the defence the fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply.” per. IBRAHIM SHATA BDLIYA, J.C.A.

1999 CONSTITUTION AND THE EVIDENCE ACT; WHETHER THE PROVISION OF SECTION 180(F) OF EVIDENCE ACT 2011 IS INCONSISTENT WITH THE PROVISION OF SECTION 294, OF THE 1999 CONSTITUTION

Are the provisions of Section 180(f) of the Evidence Act 2011 (amended) not inconsistent with the provisions of Section 294, of the 1999 Constitution (amended), which provides that:
“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.? (Underlining mine for emphasis). As earlier pointed out in this judgment, the provisions of Section 294(1), of the said Constitution guarantees the right to address the Court before taking a decision on any matter. The Supreme court alluded to this position of the provisions of the Constitution in the case of Bayo v. Njidda (2004) 8 NWLR (Pt. 876) P. 544 @ 606 thus: “Under Section 294(1) of the 1999 Constitution, parties to a judicial proceeding are vested with the right to make final addresses one after the other before the trial Court delivers its judgment in the matter. A trial will obviously be vitiated where one of the parties is afforded the opportunity to present his address and the other is denied such opportunity as that will amount to an infraction of the audi alteram partem rule of natural Justice.” If the intendment of the law makers of Section 180(f) of the Evidence Act, 2011 is to deny right of address to a prosecution where an accused only testified in his defence without calling more witnesses, then Section 180(f) of the Evidence Act is inconsistent with the provisions of the 1999 Constitution, particularly Section 294(1). Where the inconsistency exists, Section 180(f) shall be void to the extent of the inconsistency as the Constitution is supreme. Section 1(3) of the 1999 Constitution of the Federal Republic of Nigeria as amended, which provided that:
“If any other law is inconsistent with the provision of this Constitution, this Constitution shall prevail, and the other law shall to extent of the inconsistency be void.” In view of the foregoing, the learned trial judge of the Lower Court erred in law when he denied the appellant the right to address the Court and took a decision to proceed with the delivery of the judgment on the 5th of March 2015. Issue I is hereby resolved in favour of the appellant. per. IBRAHIM SHATA BDLIYA, J.C.A.

JUSTICES

UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria

IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria

Between

THE STATE Appellant(s)

AND

1. ISYAKU ABDULLAHI
2. ABDULLAHI SANI Respondent(s)

IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment): Isyaku Abdullahi and Abdullahi Sani, (hereinafter refer to as the respondents) were jointly arraigned on a two (2) counts charge before the Katsina State High Court (the Lower Court) for committing the offences of conspiracy and rape under Sections 97 and 283 of the Penal Code, respectively. They were alleged to have conspired and raped Hajara Isyaku. They pleaded not guilty to the two counts charge. At the trial, the prosecution called five witnesses and tendered exhibits to prove the 2 counts against them. At the close of the prosecution case, the respondents gave evidence in their defence. They did not call other witness(es). They filed a written address. The prosecution informed the Court of its intention to file written address. After hearing the parties, the learned trial judge of the Lower Court ruled on the 16th of March 2015 that the prosecution had no right to file written address by virtue of Section 35 of the Constitution 1999 (amended) and Section 180 (f) of the Evidence Act, 2011 (amended).

?Dissatisfied with the ruling of the Lower Court, the prosecution

filed a notice of appeal to this Court on the 19th of March 2015, challenging the ruling of the Lower Court on two grounds, which are thus:
“GROUND ONE
The learned trial judge erred in law when his Lordship denied the Appellant the right to file its final address.
Particulars of Error
1. That the Respondent were allowed to file their final address and adopt same.
2. That when the Appellant sought to file its own final address, the trial judge held that the Appellant has no right of address.
3. That despite the authorities cited and relied upon by the Appellant, the trial judge ruled against the Appellant and adjourned the case for judgment.
GROUND TWO
The learned trial judge erred in law and misdirected himself which occasioned miscarriage of justice when he relied on Section 35 of the Constitution and Section 180(f) of the Evidence Act and held that the decision of Court of Appeal in Kalu Vs The State is no longer relevant to the case.

Particulars of Error
1. That the decisions in Kalu vs The State (2011) 4 NWLR (Pt.1238) 429 at 434-436, ratios 7 – 12 were cited and retied upon by the Appellant.
2. That the trial judge held that Kalu vs The State (Supra) was decided in 2010 by the Court of Appeal and therefore is irrelevant having being overtaken by Section 35 of the Constitution and Section 180(f) of the Evidence Act which were simultaneously amended in 2011.?

The appellant’s brief of argument was filed on the 27th of April, 2015. The respondents did not file brief of argument. After the expiration or lapse of the period within which the respondent’s brief of argument ought to have been filed, the appellant sought and obtained leave of the Court on the 27/10/2015 to argue the appeal on the appellant’s brief of argument only. The appeal was heard on the 2nd of February 2016 whereat, Abdurrahaman Umar, learned Chief State Counsel adopted the appellant’s brief of argument and urged the Court to allow the appeal, set aside the ruling of the Lower Court and make an order allowing the appellant to file its written address before the Lower

Court.

On page 3 of the appellant’s brief of argument, 2 issues have been formulated from the 2 grounds of appeal for the determination of the Court in this appeal, which are thus:
?1. Whether the learned trial judge erred in law when His Lordship denied the Appellant the right to file its final addresses. Tied to Ground to Ground 1 of the Notice of Appeal).
2. Whether the learned trial judge erred in law and misdirected himself which occasioned miscarriage of justice when he relied on Section 35 of the Constitution and Section 180(f) of the Evidence Act and held that the decision of Court of Appeal in KALU VS STATE is no longer relevant. (Tied to Ground 2 of the Notice of Appeal).”

ISSUE I
?WHETHER THE LEARNED TRIAL JUDGE ERRED IN LAW WHEN HE DENIED THE APPELLANT THE RIGHT TO FILE ITS FINAL ADDRESS BEFORE JUDGMENT.?

Umar Esq., of learned counsel who settled the appellant’s brief of argument pointed out that respondents’ final written address dated 4th of March 2015 was filed on the 5th of March 2015 and served on the appellant on same date in Court. That the respondents’ counsel adopted same on the 5th of

March 2015. That counsel to the appellant sought for an adjournment to enable him peruse the respondents’ brief to enable him file a reply thereto but the Lower Court refused to do so on the ground that the appellant has no right to do so, since the defence did not call witness nor tendered exhibits at the trial. Section 180(f) of the Evidence Act, 2011 and Section 35 of the 1999 Constitution (amended) do not support the decision of the Lower Court on the right to address the Court before judgment, nor does the provision of Section 180(f) of the Evidence Act, 2011. That even if the provisions of Section 180(f) of the Evidence Act, 2011 contains such provisions, they are inconsistent with the provision of Section 294 of the 1999 Constitution, therefore, they are null and void to the extent of the inconsistency. The case of Bayo v. Njidda (2004) 8 NWLR (Pt.876) P.608 were cited to reinforce the submissions supra.

?It has been further contended that the failure or refusal to allow the appellant to file written address or address the trial Court after having been served with the respondents’ written address on the 5th of March, 2015, in Court, tantamount to

denial of fair hearing, rendering the entire proceedings null and void. The cases of Kalu v. State (2011) 4 NWLR (Pt. 1238) P. 429 @ 450 and Obodo v. Olomu (1987) 3 NWLR (Pt. 59) P 111 @ 139 relied on to buttress the submission supra.

Umar Esq., further adumbrated that addresses of counsel in an integral part of the proceedings of the Court, therefore, the refusal to allow a party to address the Court would occasion a miscarriage of justice. The cases of The State v. Lawal (2013) 7 NWLR (Pt.1354) P. 565 @ 582 and Kalu v. The State (2011) 4 NWLR (Pt. 1238) P.429 cited to fortify the submissions supra. In conclusion, counsel contended that the provisions of Section 180(f) of the Evidence Act 2011, if intended to deny a party the right of addressing the Court in the proceedings, same is unconstitutional in view of Section 294(1) of the said Constitution, therefore, by Section 1(3) thereof, same being inconsistent cannot be valid in law. The Court has been urged to resolve issue I in favour of the appellant.

?On pages 9-11 of the printed record of appeal, the learned trial judge of the Lower Court, after the application of learned counsel to the

appellant for an adjournment to enable him address the Court, ruled as follows:
“At the last adjourned date, the Defence counsel filed his closing address and moved to adopt same and equally applied for judgment of the Court in which he prayed for the discharge and acquittal of the two Accused persons. The Prosecuting Chief State Counsel in response had submitted to the Court that he had just been served with the Defence address and needed time to study and respond to same. The Defence counsel opposed the application by submitting that the prosecution had no right of reply under the law, the Defence having called no witness and tendered no exhibit. The prosecution however insisted on filing a reply placing reliance on the case of Kalu v. The State (2011) NWLR (Pt.1238) page 429 at 434-436 ratio 7-12.
Having gone through the submissions of both counsels on the issue as to whether or not the prosecution has the right of reply to the Defence final address and having gone through the relevant statutes and the authority cited, I am of the considered opinion that the provisions of Section 35 of the Constitution of the Federal Republic of Nigeria 1999 as

amended and Section 180(f) of the Evidence Act 2011 as amended and Section 180(f) of the Evidence Act 2011 as amended are very clear on the subject of the Defence of the Accused Persons. These two provisions clearly provide that the prosecution in such situations wherever they occur will have no right of reply to the Defence Final Address. The case of Kalu v. The State (supra) cited and relied upon by the Prosecution Counsel which was decided by the Court of Appeal
Owerri Division on 05/05/2010 is no longer relevant to the case at hand having been over taken by both the Constitution and Evidence Act which were simultaneously amended in 2011.
In the circumstance, counsel’s application to reply to the defence final address in refused and the case accordingly adjourned for judgment at a date to be communicated to both Parties”‘

Was the learned trial Judge of the Lower Court right in his decision supra. A resort to the provisions of Section 294(1) of the 1999 Constitution (amended) is apt at this juncture. The said Section provides:
“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.? (Underlining mine for emphasis)
The provisions of Section 294(1) of the 1999 Constitution (amended) have been interpreted and applied by the Supreme Court in the case Bayo v. Njidda (2004) 8 NWLR (Pt. 876) P. 544 @ 606, wherein it has
been held that:
“Under Section 294(1) of the 1999 Constitution, parties to a judicial are vested with the right to make final addresses one after the other before the trial Court delivers its judgment in the matter. A trial will obviously be vitiated where one of the parties is afforded the opportunity to present his address and the other is denied such opportunity as that will amount to an infraction of the audi alteram partem rule of natural justice.”
See also the case of Offor v. The State (1999) 2 NWLR (Pt. 632) P. 608, wherein same interpretation and effect was given to the provisions of Section 294(1) of the 1999 Constitution (amended). The denial of the right to address the Court by a party to any

proceedings before a Court of law will vitiate same, consequently rendering same null and void. See the case of Kalu v. State (2011) 4 NWLR (Pt. 1238) P.429 @ 450, wherein, it was held that:
“Addresses of counsel form part of the case and failure to hear the address of one party, however overwhelming the evidence seems to be on one side, vitiates the trial because in many cases, it is after the addresses that one finds that the law on the issues fought is not in favour of the evidence adduced.”
See also the case of Obodo v. Olomu (1987) 3 NWLR (Pt. 111) @ 113. The denial of the right of a party to address the Court before taking a decision would occasion a miscarriage of justice because it is a denial of the right to fair hearing. In Kalu v. The State (2011) 4 NWLR (Pt. 1238) P.429 @ 456 – 457, this Court held that fair hearing involves fair trial which consists of the entire hearing of a case. Failure to accord a party fair hearing renders the entire trial a nullity. Irolo v. Uka (2002) 14 NWLR (Pt. 786) 195; Ogboh v. F.R.N (2002) 10 NWLR (Pt. 774) 21 referred to P.457.
?Address of counsel form part of a case and failure to hear the address of

one party, however overwhelming the evidence seems to be on one side, vitiates the trial because in many cases, it is after the addresses that one finds that the law on the issues fought is not in favour of the evidence adduced. Obodo v. Olomu (1987) 3 NWLR (Pt. 59) 111 referred to P. 450.
The hearing of addresses by every Court established by the Constitution of the Federal Republic of Nigeria is recognized by the Constitution. It is essential before judgment is delivered. Its beneficial effect and impact on the mind of the Judge is not only enormous but unquantifiable. The value is of addressing the Court immense and its assistance to the judge in arriving at a just and proper decision, though dependent on the quality of address, cannot be denied. The absence of an address can tilt the balance of the Judge’s judgment just as much as the delivery of an address after conclusion of evidence.
The law is trite, the addresses of counsel is an essential part of a party’s case. It is the duty of the Court to afford parties opportunity of addressing it by way of explaining the essential issues in favour of a party after close of cases of both sides. In

the instant case, there was the need to have allowed counsel to file a reply to the points of law raised by the respondent?s address. There was also the need to allow counsel adumbrate the favourable points in favour of the appellant. The failure to give the appellant the opportunity to file the reply occasioned a miscarriage of justice as result of the denial of fair hearing to the appellant. Okoebor v. Police Council (2003) 12 NWLR (Pt. 834) 44.

The learned trial Judge of the Lower Court, in its ruling on the 5th of March, 2015, which have been reproduces supra, held that the provisions of Section 35 of the 1999 Constitution (amended) and Section 180(f) of the Evidence Act, 2011 (amended) do not allow the prosecution to address the Court where the defence has not called any witness other than the accused person. Without much ado the provisions of Section 35 of the 1999 Constitution (altered) deals with right to private defences. It has nothing to do with the right to address a Court of law in a criminal proceedings. To appreciate the import and or purport of the provisions of Section 180(f) of the Evidence Act, 2011, (amended) same reproduced

hereunder:
“180. Every person charged with an offence shall be a competent witness for the defence at every stage of the proceeding whether the person so charged is charged solely or jointly with any other person provided that:
(f) in cases where the right of reply depends upon the question, whether evidence has been called for the defence the fact that the person charged has been called as a witness shall not of itself confer on the prosecution the right of reply.”

As earlier pointed out in this judgment, the provisions of Section 294(1), of the said Constitution guarantees the right to address the Court

before taking a decision on any matter. The Supreme court alluded to this position of the provisions of the Constitution in the case of Bayo v. Njidda (2004) 8 NWLR (Pt. 876) P. 544 @ 606 thus:
“Under Section 294(1) of the 1999 Constitution, parties to a judicial proceeding are vested with the right to make final addresses one after the other before the trial Court delivers its judgment in the matter. A trial will obviously be vitiated where one of the parties is afforded the opportunity to present his address and the other is denied such opportunity as that will amount to an infraction of the audi alteram partem rule of natural Justice.”

?If the intendment of the law makers of Section 180(f) of the Evidence Act, 2011 is to deny right of address to a prosecution where an accused only testified in his defence without calling more witnesses, then Section 180(f) of the Evidence Act is inconsistent with the provisions of the 1999 Constitution, particularly Section 294(1). Where the inconsistency exists, Section 180(f) shall be void to the extent of the inconsistency as the Constitution is supreme. Section 1(3) of the 1999 Constitution of the Federal

Republic of Nigeria as amended, which provided that:
“If any other law is inconsistent with the provision of this Constitution, this Constitution shall prevail, and the other law shall to extent of the inconsistency be void.”

In view of the foregoing, the learned trial judge of the Lower Court erred in law when he denied the appellant the right to address the Court and took a decision to proceed with the delivery of the judgment on the 5th of March 2015. Issue I is hereby resolved in favour of the appellant.

?ISSUE 2
Whether the learned trial judge erred in law and misdirected himself which occasioned miscarriage of justice when he relied on Section 35 of the 1999 Constitution (amended) and Section 180(f) of the Evidence Act 2011 (amended) and held that the decision of the Court of Appeal in Kalu v. The State is no longer relevant to the case before the trial Court.
On page 10 of the printed record of appeal, it has been recorded as follows:
“I am of the considered opinion that the provisions of Section 35 of the Constitution of the Federal Republic of Nigeria, 1999 as amended and Section 180(f) of the-Evidence Act, 2011 as amended

are very clear on the subject of the defence of the accused persons. These two provisions clearly provide that the prosecution in such situations wherever they occur will have no right of reply to the Defence final address. The case of Kalu v. State (supra) cited and relied upon by the prosecution counsel which was delivered by the Court of Appeal, Owerri Division on 5/5/2010 is no longer relevant to the case at hand having been overtaken by both the Constitution and Evidence Act which were simultaneously amended in 2011.”

In Kalu v. The State (2011) NWLR (Pt. 1238) P. 429 @ 450 – 456, this Court held addresses of counsel form part of a case and failure to hear the address of one party, however overwhelming the evidence seems to be on one side, vitiates the trial because in many cases, it is after the addresses that one finds that the law on the issues fought is not in favour of the evidence adduced. Obodo v. Olomu (1987) 3 NWLR (Pt. 59) 111 referred to P. 450.
The hearing of addresses by every Court established by the Constitution of the Federal Republic of Nigeria is recognized by the Constitution. It is to be taken before judgment is

delivered. Its beneficial effect and impact on the mind of the Judge is enormous but unquantifiable. The value is immense and its assistance to the judge in arriving at a just and proper decision, though dependent on the quality of address, cannot be denied. The absence of an address can tilt the balance of the Judge’s judgment just as much as the delivery of an address after conclusion of evidence.
The decision of the Court of Appeal in Kalu v. The State supra was predicated on the decision of the Supreme Court in the case of Obelo v. Olomu & Ors (1987) 3 NWLR (Pt. 59) P. 111. In the case Obaseki J.S.C (of blessed memory) had this to say on same issue of right of parties to address the Court before the taking of decision by a Court of law as provided for in the Constitution of the Federal Republic of Nigeria:
?The Court of Appeal dismissed the appellant?s arguments on the ground that the result would have been the same if the appellant had submitted a written address in reply to the respondent’s written address.
This appeal is unique in that the complaint is not a failure to hear evidence from the plaintiff or from the

defendant and their witnesses but of failure to provide an opportunity for the delivery of and the consideration of the address of the plaintiff’s counsel in reply before judgment…
The hearing of addresses by every Court established by the Constitution of the Federal Republic of Nigeria is recognized by the Constitution. It is to be given before judgment is delivered. See Section 255(1) of the Constitution of the Federal Republic of Nigeria 1979. Its beneficial effect and impact on the mind of the Judge is enormous but unquantifiable. The value is immense and its assistance to the judge in arriving at a just and proper decision, though dependent on the quality of address, cannot be denied. The absence of an address can tilt the balance of the learned Judge’s judgment just as much as the delivery of an address after conclusion of evidence can.”
As to whether the denial of the right to address the Court on the 5th of March 2015, occasioned a miscarriage of justice or not, I can only adopt what Owoade J.C.A said in the case of Kalu v. The State (2011) 4 NWLR (Pt. 238) P. 429 @ 251 – 252 that:
?I have no doubt in my mind that the

failure to give the appellant the opportunity to file a reply to the respondent’s address in this case has occasioned a serious miscarriage of justice and a denial of fair hearing to the appellant.”

In the same vein, the learned trial Judge of the Lower Court having denied the appellant the right to address the trial Court after the defence of the respondents, a miscarriage of justice was occasioned to them which rendered that proceedings a nullity. This is so, because where a miscarriage has been recognized by an act or omission of the Court, such proceedings would be a nullity of no effect at all. Same is liable to be set aside. I hereby resolved issue 2 in favour of the appellant.

?In the result, having resolved the 2 issues in favour of the appellant, the appeal succeeds. The ruling of the Lower Court on the 5th of March 2015, denying the appellant the right to address the Court is hereby set aside. The case No.KTH/DM/2C/2010, is hereby remitted to the Lower Court of Katsina State High Court for continuation of the trial to finality by Hon. Justice I. B. Ahmed.

UWANI MUSA ABBA AJI, J.C.A.: I have read before now the judgment

delivered by my learned brother, Ibrahim Shata Bdliya, JCA, just delivered. I completely agree with the reasoning and conclusions arrived at in the lead judgment that the Appellant was denied fair hearing by the trial Court in its proceedings by denying the Appellant the right to address the Court. The appeal succeeds and it is hereby allowed. The case No KTH/DM/2C/2010 is hereby remitted to the Lower Court for continuation of hearing by Hon. Justice I.B: Ahmed.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read the lead Judgment of my learned brother, Ibrahim Shata Bdliya JCA and am in agreement with his reasoning and conclusions.

On the right to file Written Addresses, this Court in Eshenaike v Gbinije (2006) 1 NWLR Part 961 at 228, per Abba-Aji JCA at 250-257 Para EB held:
“… a right of address is a Constitutional right which cannot be taken away from a party by any Court or Tribunal”…..No doubt the failure of the Tribunal to avail itself of the benefit of the Appellant’s address which was filed before it, but allowed itself of a similar benefit of the Respondent’s address filed a

day later, …is an infraction of the rules of natural justice of “audi alterem partem”.
In the case of Obodo v Olomu (1987) 3 NWLR Part 59 Page 111 at 121 Para C-F, Belgore JSC (as he then was) had this to say:
?Addresses form part of the case and failure to hear the address of one party, however overwhelming the evidence seems to be on one side, vitiates the trial; because in many cases, it is after the addresses that one finds the law on the issues fought not in favour of the evidence adduced……. A party entitled to address the Court may waive that right but it must be shown that he has so waived his right.
The learned jurist, Abba-Aji JCA, in the said case of Eshenake v Gbinije Supra also cited with approval the case of Salami v Odogun (1991) 2 NWLR Part 173, Page 291 at 301 where Sulu Gambari, JCA, opined thus:-
“Where an address ought to be given and the same was not accorded, any decision so arrived at will amount to a breach of fair hearing which is entrenched in Section 33 of the 1979 Constitution of the Federal Republic of Nigeria and will surely vitiate the proceedings.”
?In

Agbogu v Adiche (2003) 2 NWLR Part 805 Page 509 at 527 Para G-H, Akpabio JCA held thus:-
“Judicially interpreted, Section 258(1) of the 1979 Constitution vests a right in the parties to make final addresses and where one of the parties makes his final address, the other party must be given opportunity to reply or give his own final address before pronouncement of judgment. A denial to one party from giving his final address whilst the other party is allowed is an infraction of the rule of natural justice of audi alteram partem.”

Indeed, the Constitution of the Federal Republic of Nigeria 1999 (as amended), in Section 294(1) enshrines this right, where it states:
“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.”
Underlining Mine.
?This does not of

course mean that where Counsel fails to avail himself of this right, he can complain later of a deprivation of his rights. It was held in Ekara v Takim (1995) 5 NWLR Part 394 Page 242 at 252, Paragraphs A-B, per Akintan JCA (as he then was) that:
“It is trite law that address of counsel is designed to assist the Court. Where therefore a counsel deliberately fails to avail himself of the opportunity of delivering his address or where the argument is unanswerable, the fact that counsel did not address the Court cannot be denial of fair hearing which could vitiate the judgment.”

The instant case, is however not such a one as in Ekara v Takim Supra. The Appellant’s Counsel sought but was denied the right to address the Court. This, I agree with my learned brother, Ibrahim Shata Bdliya, is an infraction of the Constitution, occasioning a miscarriage of justice. I also set aside the ruling of the Lower Court of 5th March 2015 and remit the case to the Lower Court for adoption of the Appellant’s address and continuation of trial to finality.

Appearances

A. Umar (C.S.C.) with him, S. M. Abubakar (S.C. Ministry of Justice, Katsina State)For Appellant

AND

No appearance for the RespondentFor Respondent