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TRANSOCEAN PROPERTY AND INVESTMENT CO. LTD v. FRN (2021)

TRANSOCEAN PROPERTY AND INVESTMENT CO. LTD v. FRN

(2021)LCN/15673(CA)

In the Court of Appeal

(LAGOS JUDICIAL DIVISION)

On Friday, May 14, 2021

CA/L/1453C/18

Before Our Lordships:

Chidi Nwaoma Uwa Justice of the Court of Appeal

Tunde Oyebanji Awotoye Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

TRANSOCEAN PROPERTY AND INVESTMENT COMPANY LTD APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

 

RATIO

CONDITIONS THAT MUST ARISE FOR A COURT TO REVISIT ITS DECISION

​In resolution of issue one, no doubt there are conditions that arise in which the law permits a Court to revisit its decision. See UKACHUKWU VS. UBA (2006) (supra) where the following conditions were outlined by the Supreme Court:
1. When the judgment is obtained by fraud or deceit either in the Court, or of one or more parties.
2. When a judgment is a nullity, a person affected by an order of Court which can be properly described as a nullity is entitled Ex-debito justicia to have it set aside.
3. When it is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it.
4. Where the judgment was given in the absence of jurisdiction.
5. Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.
See IGWE VS. KALU (2002) 14 NWLR (PT. 787) 435 at P. 453 – 454, OLUSEGUN ADEBAYO ONI & ANOR VS. DR. JOHN OLUKAYODE FAYEMI & ORS (2012) LPELR – 14799 (CA) PP. 4 – 5, PARA. E and ADEOSUN VS. AFOLABI (2018) LPELR – 45703 (CA) PP. 11 – 14, PARA. D.  PER UWA, J.C.A.

WHETHER OR NOT AN OBJECTION TO THE COMPETENCE OF A COURT MUST BE DECIDED BEFORE THE SUBSTANTIVE MATTER

​It is trite that there has to be a valid plea or a determination of the validity of a plea before proceeding would continue to culminate in a conviction or otherwise. Therefore, any objection to the competence of a Court or proceedings (which includes arraignment and plea being taken), it ought to be looked into first before proceeding into the substantive matter otherwise the proceedings and/or conviction whatever the case may be would be a nullity. The arraignment and plea are the foundation of any criminal trial, one cannot put something on a faulty foundation or on nothing, it would not stand; it is bound to collapse. See, MACFOY VS. U.A.C. LTD (1961) 3 ALL E.R. 1169 at 1172, Appeal No. CA/L/1214C/2016, AMAJUOYI AZUBUIKE BRIGGS VS. FRN & 6 ORSdelivered by this Court on 15/6/17 (unreported) and DUDAFA VS. FRN & ORS (2017) LPELR – 45257 (CA). PER UWA, J.C.A.

WHETHER OR NOT AN ORDER WHICH IS A NULLITY CAN BE SOUGHT TO BE SET ASIDE BY THE PERSON AFFECTED

An order which is a nullity can be rightly sought to be set aside by the person affected, in this case the Appellant. In such a case the Court that made the order can in its inherent jurisdiction set aside its order, in such a situation an appeal would not be necessary. See, ALAYA VS. ISAAC (2019) LPELR – 46881 (CA) PP. 24 – 34, PARAS. D – C, OBIMONURE VS. ERINOSHO & ANOR (1966) LPELR – 25301 (SC) PP. 1 – 6, PARAS. F – D, CHIEF MAURICE CHUKWU VS. CUSTOMARY COURT UMUNUMO EHIME MBANO LGA & ORS (2014) LPELR – 23813 (CA) PP. 97 – 98, PARAS. B – A and CRAIG VS. KANSEEN (1943) K.B. 256, in which lord Green stated the position of the law thus:
“Those cases appear to me to establish that a person who is affected by an order which can properly be described as a nullity is entitled ex–debito justicia to have it set aside… so far as procedure is concerned, it seems to me that the Court in its inherent jurisdiction can set aside its own Order, and that it is not necessary to appeal from it.”
See, OBIMONURE VS. ERINOSHO & ANOR (1966) (supra); ABUBAKAR & ORS VS. CEMENT COMPANY OF NORTHERN NIGERIA (2018) LPELR – 44061 (CA) P. 14, PARAS. A – E and OCHUKPUO & ORS VS. DILIMSON (2018) LPELR 46114 (CA) PP. 14 – 16, PARAS. F – C.
PER UWA, J.C.A.

THE POSITION OF LAW ON THE FUNDAMENTAL RIGHT TO FAIR HEARING

In my considered but humble view, there was a breach of fair hearing by the trial Court. At any and all stages of a trial, it must be clearly seen that a party entitled to be heard before his fate is decided has been given fair hearing, where this is lacking the decision arrived at is bound to be set aside. The right to fair hearing is fundamental and guaranteed by the constitution, breach of which nullifies the proceedings in favour of the party deprived of fair hearing, in this case the Appellant. It is a cardinal principle, thus it is enshrined in our Constitution, Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The conviction of the Appellant is not being challenged but, it is the procedure followed by the trial Court that has been faulted, not the correctness of the decision. It is where the aggrieved party has been fully heard that the trial Court would be seen as an unbiased umpire and as having conducted a fair trial. The trial Court ought to have determined the application one way or the other before proceeding with the conviction of the Appellant if need be. See, VICTINO FIXED ODDS LTD VS. OJO & ORS (2010) LPELR – 3462 (SC) PP. 13 – 14, PARAS. B – A, EKUNOLA VS. CBN & ANOR (2005) LPELR – 11414 (CA) PP. 61 – 62, PARAS. F – E, AYOADE VS. STATE (2018) LPELR (CA) PP. 28 – 29, PARAS. D – A, ALUKO VS. AJIBOYE (2011) LPELR – 8836 (CA) PP. 32 – 33, PARAS. F – B AND UZODINMA VS. IZUNASO & ORS (2011) LPELR – 20027 (CA) P. 25, PARAS. B – D.  PER UWA, J.C.A.

 

CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is from the decision of Babs Kuewumi, J. of the Federal High Court Lagos Division, (hereafter referred to as the trial Court), delivered on the 3rd day of July, 2018 in which the trial Court refused the Appellant’s motion seeking to set aside her conviction and commence trial de Novo from arraignment.

​The background facts are that the Appellant was the 6th Defendant in the fifteen count 2nd Amended charge before the lower Court dated 14th September, 2016. The Appellant is one of the four artificial persons charged together with three other natural persons in the charge, pages 17 – 23 of the Records of Appeal. During the arraignment at the trial Court, the 1st, 2nd and 3rd Defendants who are natural persons were said to have been called up to the dock where each pleaded not guilty to the charge. It was contended by the Appellant that, the Appellant, 4th, 5th and 7th Defendants who are artificial persons (incorporated companies under CAMA) were not put in the dock. It was made out that none of the three natural persons in the dock was a representative of the Appellant or any of the other three artificial persons. It was alleged that during the proceedings of 15th September, 2016 one Bioghowori Frederick, said to have been brought to Court by the operatives of the Economic and Financial Crimes Commission (EFCC) in company of three others, namely: Agbor Baro, Friday Davies and Taiwo Ebenezer stood in the Court’s gallery and indicated that he was a representative of the Appellant. It was alleged that the said Bioghowori Frederick was not put in the dock when the charge was read to him and his plea sought. He pleaded “guilty” to all the counts pertaining to the Appellant from where he stood on the last row of the gallery. It was made out that the said Bioghowori Frederick had initially denied having anything to do with the company and disowned it, his statement made to the EFCC on 27th of July, 2016, pages 646 – 647 of the printed records of Appeal which formed part of the proof of evidence filed before the trial Court was referred to. It was stated that the said Bioghowori Frederick who pleaded guilty for the Appellant who purported to be a director or representative of the Appellant was never remanded or granted bail, also, that after the conviction he has been walking about a free man.

​It was contended that not having been authorized by the Appellant to represent her, the then 2nd defendant who is the company secretary to the Appellant filed a motion on Notice dated 16th September, 2016 challenging the “guilty” plea made without authorization. Without hearing the application, the trial Court entered the plea of “guilty” and on the 2nd day of November, 2016 convicted the Appellant for the offences based on the plea of “guilty”, without sentencing the Appellant and the other three artificial persons till date. The trial Court continued the trial of the other natural persons separately in the same charge. The then 2nd Defendant (Amajuoyi Azubuike Briggs) appealed to this Court in Appeal No. CA/L/1214C/2017, where he sought that the Appeal be allowed, that the Ruling of Babs Kuewumi, J. delivered on 7th October, 2016 be set aside and an order entering a plea of “not guilty” be entered on behalf of the 4th – 7th Defendants (including the 6th Defendant). This Court was said to have given its judgment in the said appeal on the 5th day of June, 2017 allowing the appeal, contained at pages 109 – 122 of the printed records of Appeal. In the said judgment, this Court ordered that the Motion filed on the 21st of September, 2016 challenging the “guilty” plea entered for the Appellant and three other artificial Defendants be heard, same having not been heard before the trial Court upheld the plea and convicted the Appellant and her co-defendants.

​It was made out that on arraignment, the challenge of the plea and time of conviction, the Appellant had no counsel until she later briefed the Chambers of Mike Ozekhome (SAN). The Learned Senior Counsel filed a motion on 4/4/2017 seeking to set aside the conviction of the Appellant and three others for want of fair hearing alleging also a miscarriage of justice among other grounds. The trial Court heard the motion on 2nd May, 2018 by which date the judgment of this Court in Appeal No. CA/L/1214C/2017 had been delivered and communicated to the trial Court. While arguing the motion, the Learned Senior Counsel Chief Mike Ozekhome (SAN) drew the attention of the trial Court to the judgment of this Court. The Ruling of the trial Court on the application was delivered on 3rd July, 2018 in which the application was refused in holding that it was functus officio. The Appellant was dissatisfied with the Ruling thus this appeal.

The following issues were formulated by the Appellant for the determination of the Appeal:
(i) “Whether the learned trial Judge was right to hold that he was functus officio in respect of the Appellant’s conviction made on the 2nd day of November, 2016 and to refuse to set same aside in the face of the law, facts and circumstances of this case. (Ground one of the grounds of appeal)
(ii) Whether the conviction of the Appellant on the 2nd day of November, 2016, the proceedings leading to it and the events thereafter are not in breach of statutory and constitutional provisions thereby occasioning a miscarriage of justice rendering the conviction null, void and liable to be set aside.” (Grounds two, three and four of the ground of appeal).

In response, the Respondent on her part adopted the two issues as formulated by the Appellant in urging us to dismiss the Appeal.

​In arguing the appeal, the learned counsel to the Appellant A.I. Asemudara Esq. adopted and relied on his brief of argument filed on 17/6/2020 and his reply brief filed on 15/2/2021, deemed properly filed and served on the same day in urging us to allow the appeal and set aside the Ruling of the trial Court.

In arguing the first issue, it was submitted that the trial Court acted in error when it held that the Court was functus officio in respect of the Appellant’s conviction made on the 2nd day of November, 2016 and refused to set same aside in the face of the law, facts and circumstances of this case. It was argued that the lower Court was wrong to have refused the application dated and filed on 4/4/17, on the basis of being functus officio, defined in the case of FIRST BANK OF NIGERIA PLC VS. TSA INDUSTRIES LIMITED (2010) 15 NWLR (PT. 1216) 247 at 296. It was submitted that the Court could not have been rightly said to have performed or discharged its office/duties in respect of the conviction when the validity of the plea which should precede the conviction had not been determined. See, UKACHUKWU VS. UBA (2006) ALL FWLR (PT. 300) 1736 at 1751 where the Supreme Court outlined the conditions under which a Court can set aside its decisions. See, ADIMORA VS. AJUFO & ORS (1998) 1 NSCC. Further, that the decision/conviction by the trial Court in this case is a nullity because the conviction was based on a plea that was challenged before the trial Court and later at the Court of Appeal as at the time of the conviction. It was argued that the validity of the plea of “guilty” by the Appellant has not been determined, while the trial Court has retained the plea of guilt and conviction. It was argued that the conviction is premature and prejudicial and without the requisite condition precedent of a proper plea and proofs, therefore null and void.

It was submitted that the motion dated and filed on 21st September, 2016 ought to have been determined before the Appellant’s conviction and sentence, the Court therefore had the capacity and competence to have made the orders sought in the application that led to this appeal but failed to do so. See, FIDELITY BANK PLC VS. M.T. TOBORA (2009) 8 NWLR (PT. 1142) 83 at 110, PARAS. C – E. It was argued that where there is a breach of fair hearing, the decision ought to be set aside. See, OGUNDOYIN VS. ADEYEMI (2001) 13 NWLR (PT. 730) 403 at 422. We were urged to set aside the conviction. See, GBADAMOSI VS. DAIRO (2007) 3 NWLR (PT. 1021) 282 at 306 – 307.

​It was further argued that the trial Court was misled into giving the decision convicting the Appellant on the false belief that the Appellant and three others consented to the conviction. It was argued that there was no evidence of authorization for the Representation of the Appellant and the taking of plea on her behalf in line with Sections 477 and 478 of the Administration of Justice Act, 2015. It was argued that the decision of the trial Court of 2nd November, 2016 convicting the Appellant and three others was given without jurisdiction, reference was made to Section 36 (6)(C) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) (hereafter referred as the Constitution) and Section 349 of the Administration of Criminal Justice Act (ACJA), 2015. It was submitted that the alleged representative of the Appellant was not put in the dock contrary to Section 269 of the ACJA, 2015. Further, the application challenging the plea of guilty entered for the Appellant had not been taken before the conviction; reference was made to the decision of this Court of 15th June, 2017. We were urged to set aside the conviction.

In response, the learned counsel to the Respondent U.U. Buhari Esq. adopted and relied on his brief of argument filed on 29/1/21, deemed properly filed and served on 4/2/21 as his argument in urging us to dismiss the appeal. In response to issue one, it was submitted that the trial Court having convicted the Appellant, the Court could no longer revisit that issue. See, DILLI VS. ADAMU & ANOR (2016) LPELR – 40227 (CA) to the effect that a Court cannot give a decision or make an order twice. See also OSAYANDE & ANOR VS. THE STATE (1985) LPELR – 2793 (SC) P. 13, PARAS. C – D to the effect that once the Court pronounces any judgment, he is functus officio and any judgment reduced into writing or any reason given subsequently is of no effect and cannot be looked at by the Court of Appeal. It was argued that the decision of the trial Court convicting the Appellant is appealable as of right; reference was made to Sections 241 and 318 of the 1999 Constitution.

It was argued that the alleged fraud was on the basis that the Director of the Appellant appeared and pleaded guilty for the company when in his extra judicial statement he had denied knowledge of the Appellant. Further, that it was up to the Appellant to prove that Bioghowori Frederick whose name and particulars are on Form CAC 07 and Skye Bank Mandate Card of the Appellant’s account is not a Director of the Appellant as he claimed, reference was made to Exhibit A3, at page 433 of the records of appeal. It was refuted that the proceedings before the trial Court was not tainted with fraud. It was argued that the offences for which the Appellant was tried and convicted were under the Money Laundering Act, which the Federal High Court has the exclusive jurisdiction to hear and determine. See, OGUNBODEDE VS. FRN (2017) 5 NWLR (PT. 1559) 337 at 346 – 347 PARAS. C – D. It was argued that since the trial Court had the competence to have heard the matter the decision cannot be rightly termed null and void.

Further, that the law is that there is no stay permitted of criminal proceedings in Nigeria. See Section 306 of the ACJA, 2015 and METUH VS. FRN (2016) 17 NWLR (PT. 1541) 226. It was argued that the hearing envisaged by the provision of Section 36 (1) of the Constitution is hearing conducted in line with practice, procedure and the rules formulated by statute and the Rules of Court to ensure justice. See, BAMAIYI VS. STATE (2001) 8 NWLR (PT. 715) 270 at 284. On the meaning of fair hearing and fair trial, reliance was placed on UGURU VS. STATE (2002) 2 NWLR (PT. 771) 90 at 105, AUDU VS. FRN (2013) LPELR – 19897 (SC) PP. 13 – 14, PARAS. G – A and GTB PLC VS. FADCO INDUSTRIES NIGERIA LTD & ANOR (2013) LPELR – 21411 (CA). It was argued that where a party to a proceeding was afforded opportunity to present its case, such a party cannot turn around and claim that its right to fair hearing is infringed. It was submitted that the evidence or record shows that Frederick who pleaded guilty to the charge on behalf of the Appellant is the majority shareholder of the company and one of the signatories to the account of the Appellant, therefore, the Appellant’s reliance on Sections 477 and 478 of the ACJA, 2015 is misconceived in view of the facts and circumstances of this case. The allegation that the Appellant was not in the dock during the proceedings in line with Section 269 of ACJA, 2015 was denied, the Respondent making out that it was not corroborated. It was concluded on this issue that the Appellant was represented and actively participated in the proceedings leading to her conviction.

In the Appellant’s reply brief, the issue of when the Court could set aside its judgment was reargued. Also, reargued was the point that the Appellant ought to have pleaded afresh to the amended charge in line with Sections 216 (2) and 217 (1) of the ACJA, 2015. Also, the required endorsement of the new charge was argued not to have been complied with in line with Section 218 (2) of the ACJA, pages 17 – 23 of the printed records of Appeal. See BUDE VS. STATE (2013) LPELR – 22353 (CA) and ATTAH VS. STATE (1993) LPELR – 598 (SC) PP. 40 – 41, PARAS. D – B. Non-compliance with Section 269 of the ACJA (docking the Appellant) was also re-argued alleging improper arraignment.

​In resolution of issue one, no doubt there are conditions that arise in which the law permits a Court to revisit its decision. See UKACHUKWU VS. UBA (2006) (supra) where the following conditions were outlined by the Supreme Court:
1. When the judgment is obtained by fraud or deceit either in the Court, or of one or more parties.
2. When a judgment is a nullity, a person affected by an order of Court which can be properly described as a nullity is entitled Ex-debito justicia to have it set aside.
3. When it is obvious that the Court was misled into giving judgment under a mistaken belief that the parties consented to it.
4. Where the judgment was given in the absence of jurisdiction.
5. Where the procedure adopted was such as to deprive the decision or judgment of the character of a legitimate adjudication.
See IGWE VS. KALU (2002) 14 NWLR (PT. 787) 435 at P. 453 – 454, OLUSEGUN ADEBAYO ONI & ANOR VS. DR. JOHN OLUKAYODE FAYEMI & ORS (2012) LPELR – 14799 (CA) PP. 4 – 5, PARA. E and ADEOSUN VS. AFOLABI (2018) LPELR – 45703 (CA) PP. 11 – 14, PARA. D. The learned counsel to the Appellant alleged that the decision sought to be set aside was obtained by fraud where a person not authorized to represent the Appellant took plea outside the dock on behalf of the Appellant, which is as good as no plea taken by the Appellant. There is nothing on record as at the time of conviction to show that Bioghowori Frederick was mandated by the Appellant to represent her and taking plea on her behalf in which he pleaded guilty following which the appellant was convicted. The appellant challenged the plea entered on her behalf, this issue needed to have been resolved before the conviction; this was not the case as at 2/11/2016, the date of the conviction.

​It is trite that there has to be a valid plea or a determination of the validity of a plea before proceeding would continue to culminate in a conviction or otherwise. Therefore, any objection to the competence of a Court or proceedings (which includes arraignment and plea being taken), it ought to be looked into first before proceeding into the substantive matter otherwise the proceedings and/or conviction whatever the case may be would be a nullity. The arraignment and plea are the foundation of any criminal trial, one cannot put something on a faulty foundation or on nothing, it would not stand; it is bound to collapse. See, MACFOY VS. U.A.C. LTD (1961) 3 ALL E.R. 1169 at 1172, Appeal No. CA/L/1214C/2016, AMAJUOYI AZUBUIKE BRIGGS VS. FRN & 6 ORSdelivered by this Court on 15/6/17 (unreported) and DUDAFA VS. FRN & ORS (2017) LPELR – 45257 (CA).
Without the validity of the plea being determined, the conviction of the Appellant is premature as rightly argued by the learned counsel to the Appellant. It is prejudicial, a plea being a condition precedent before conviction. From the printed records of Appeal, Bioghowori Frederick purportedly took plea as representing the Appellant on 15/9/16 in which he pleaded guilty in the charges the Appellant was arraigned for. After the plea, the matter was adjourned to 27/9/16 for further hearing while Mr. Frederick was granted bail. Before the adjourned date, precisely on 21/9/16, pages 32 – 43 of the printed records of appeal; there was an application filed by the 2nd Defendant challenging the plea of guilty entered for the Appellant. The trial Court did not hear the motion dated and filed on 21/9/16. In the application, the following reliefs were sought:
“AN ORDER of this Honourable Court setting aside the plea of guilty entered on behalf of the 4th, 5th, 6th and 7th Defendants for being null and void for want of competence and jurisdiction of the Honourable Court, instead entering a plea of non-guilty in accordance with Section 478 of the Administration of Criminal Justice Act, 2015.
AND for such Order or further Orders as this Honourable Court may deem fit to make in the circumstances of this case.”

The applicant therein alleged that the purported representative of the Appellant had no authority to do so, contrary to Sections 477 (3)and 478 of the ACJA 2015. Whether right or wrong, the trial Court ought to have determined the application before proceeding to convict the Appellant on 2/11/16. From the records of appeal, I did not see anywhere a reason was given for not hearing and determining the application before proceeding to convict the Appellant.

In the Ruling that led to the present appeal, contained in the supplementary records, the trial Court agreed and recognized the fact that he was in a position to set aside its previous judgment when he held as follows:
“It is not in doubt that a Court can set aside its previous judgment in clear cases of lack of jurisdiction or fraud or where there are steps taken by the Court which constitute or amount to serious procedural irregularity. See, MICHAEL VS. BANK OF THE NORTH (2015) LPELR – 24690 (S.C).”

The trial Court had the power, capacity and competence to have considered and determined the application sought which led to the present appeal for the mere fact that the trial Court made the order convicting the Appellant and three others without determining the motion filed on 21/9/2016 in which the plea was challenged. An order which is a nullity can be rightly sought to be set aside by the person affected, in this case the Appellant. In such a case the Court that made the order can in its inherent jurisdiction set aside its order, in such a situation an appeal would not be necessary. See, ALAYA VS. ISAAC (2019) LPELR – 46881 (CA) PP. 24 – 34, PARAS. D – C, OBIMONURE VS. ERINOSHO & ANOR (1966) LPELR – 25301 (SC) PP. 1 – 6, PARAS. F – D, CHIEF MAURICE CHUKWU VS. CUSTOMARY COURT UMUNUMO EHIME MBANO LGA & ORS (2014) LPELR – 23813 (CA) PP. 97 – 98, PARAS. B – A and CRAIG VS. KANSEEN (1943) K.B. 256, in which lord Green stated the position of the law thus:
“Those cases appear to me to establish that a person who is affected by an order which can properly be described as a nullity is entitled ex–debito justicia to have it set aside… so far as procedure is concerned, it seems to me that the Court in its inherent jurisdiction can set aside its own Order, and that it is not necessary to appeal from it.”
See, OBIMONURE VS. ERINOSHO & ANOR (1966) (supra); ABUBAKAR & ORS VS. CEMENT COMPANY OF NORTHERN NIGERIA (2018) LPELR – 44061 (CA) P. 14, PARAS. A – E and OCHUKPUO & ORS VS. DILIMSON (2018) LPELR 46114 (CA) PP. 14 – 16, PARAS. F – C.
I am of the humble view that the trial Court prematurely convicted the Appellant. See the decision of this Court earlier referred to in this judgment, AMAJUOYI AZUBUIKE BRIGGS VS. FRN & 6 ORS (supra). The trial Court was wrong to have held in its Ruling that led to this appeal that it had no competence to reverse itself or set aside its previous order or decision, it ought to have taken a decision on the pending application that challenged the plea that led to the conviction of the Appellant. The trial Court was also wrong to have held that it was funtus officio in respect of his decision convicting the appellant on the faulted plea.

In my considered but humble view, there was a breach of fair hearing by the trial Court. At any and all stages of a trial, it must be clearly seen that a party entitled to be heard before his fate is decided has been given fair hearing, where this is lacking the decision arrived at is bound to be set aside. The right to fair hearing is fundamental and guaranteed by the constitution, breach of which nullifies the proceedings in favour of the party deprived of fair hearing, in this case the Appellant. It is a cardinal principle, thus it is enshrined in our Constitution, Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). The conviction of the Appellant is not being challenged but, it is the procedure followed by the trial Court that has been faulted, not the correctness of the decision. It is where the aggrieved party has been fully heard that the trial Court would be seen as an unbiased umpire and as having conducted a fair trial. The trial Court ought to have determined the application one way or the other before proceeding with the conviction of the Appellant if need be. See, VICTINO FIXED ODDS LTD VS. OJO & ORS (2010) LPELR – 3462 (SC) PP. 13 – 14, PARAS. B – A, EKUNOLA VS. CBN & ANOR (2005) LPELR – 11414 (CA) PP. 61 – 62, PARAS. F – E, AYOADE VS. STATE (2018) LPELR (CA) PP. 28 – 29, PARAS. D – A, ALUKO VS. AJIBOYE (2011) LPELR – 8836 (CA) PP. 32 – 33, PARAS. F – B AND UZODINMA VS. IZUNASO & ORS (2011) LPELR – 20027 (CA) P. 25, PARAS. B – D. The appellant was not given the opportunity for the competence of the plea allegedly entered on his behalf to be determined before his conviction by the trial Court. It is when the application is heard that the trial Court would be able to determine truly the capacity of the person who pleaded on behalf of the appellant and whether or not he was authorized to do so in line with Sections 477 and 478 of the ACJA, 2015. The procedure adopted by the trial Court was not proper; parties must be given equal opportunity to present their cases. I agree with the submission of the learned counsel to the Appellant that conditions that would warrant the learned trial Judge setting aside his decision convicting the Appellant exists and ought to have been utilized, the trial Court was not funtus officio in respect of the decision. The application that led to this appeal was an opportunity the trial Court would have utilized to put his house in order so to say. I hold that the learned trial Judge was not funtus officio in respect of the Appellant’s conviction on 2nd November, 2016 when the “guilty” plea issue had not been determined. The Appellant’s conviction of 2/11/2016 is a nullity, it is hereby set aside. I resolve issue one in favour of the Appellant.

In respect of issue two, whether the Appellant’s conviction of 2/11/16 is not null and void having breached statutory and constitutional provisions, this issue has been resolved in course of the resolution of issue one, there would be no need to repeat what has already been determined.

​In sum, there is merit in the appeal, I allow same. The decision of the trial Court of 3rd July, 2018 in respect of the Appellant is hereby set aside. The application filed on 21st September, 2016 challenging the plea taken on behalf of the Appellant should first be heard and in line with the provisions of Section 396 (2) of the ACJA, 2015, the Ruling is to be delivered at the time of the delivery of the final judgment.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I was privileged to read before now the draft of the judgment just delivered by my learned brother Uwa J.C.A. I fully agree with the reasoning and conclusion therein. The issues raised in the appeal have been exhaustively and thoroughly resolved. I have nothing new to add other than to adopt the reasoning and conclusion and abide by the consequential orders.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the advance copy of the judgment just delivered by my learned brother, Chidi Nwaoma Uwa, J.C.A.

​I adopt without reservation the conclusion of his Lordship allowing the appeal. The application filed on 21st September, 2016 challenging the plea taken on behalf of the Appellant should first be heard, and in line with the provisions of Section 396(2) of the ACJA, 2015, ​ the Ruling is to be delivered at the time of the delivery of the final judgment.
Therefore, the conviction of the Appellant is hereby set aside.

Appearances:

A. I. Asemudara Esq. with Ejieke Onuoha Esq. and Azubuike Solomon Akpe Esq. For Appellant(s)

U. U. Buhari Esq. For Respondent(s)