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UBIAM v. UBIAM & ORS (2020)

UBIAM v. UBIAM & ORS

(2020)LCN/15648(CA)

In the Court of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, March 30, 2020

CA/C/271/2016

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

YargataByenchitNimpar Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

THOMAS E. UBIAM APPELANT(S)

And

1. PAULINUS IME UBIAM 2. MALACHY E. UBIAM 3. EMMANUEL E. UBIAM RESPONDENT(S)

RATIO:

EXCPTIONS TO AFFIDAVIT NOT COUNTERED STAND ADMITTED

It is trite that there are exceptions to the rule that when facts in an affidavit are not countered they stand admitted, true and must be relied upon, see EXCHANGE ASSURANCE (NIG) LTD. VS. ASWANI TEXTILE INDUSTRIES LTD. (1992) 3 NWLR (Pt. 227) 1 where it restated thus:
“If an affidavit is self contradictory or if the facts contained therein are presumed to be true and when taken together are notsufficient to sustain the prayers of the Applicant, it would be needless for a Respondent to file a counter affidavit.”
Some the exceptions to the rule are as follows:
i. If the affidavit is self contradicting
ii. If the facts contained therein are not worth countering by the filing of a counter affidavit in opposition
iii. Where the depositions in an affidavit is in conflict with documents or documentary evidence in the case, the Court will reject the deposition even where there is no counter affidavit.
See C.C.  ONYEMELUKWUE  VS.  WEST AFRICAN  CHEMICAL  COMPANY LIMITED (1995) 4 NWLR (Pt. 387) 24 at 55. YARGATA BYENCHIT NIMPAR, J.C.A

PERVERSE DECISIONS OF THE COURT OCCASION TO MISCARRIAGE OF JUSTICE

A Court cannot go outside its record to determine any issue, that would be perverse and perverse decisions are usually set aside, see UGBOJI VS. STATE (2017) LPELR-43427 (SC) where the apex court described a perverse decision as follows:
“The decision is perverse, if among other things, the Court took into consideration matters extraneous to the facts in issue, or matters which it ought not to have taken into consideration. See ATOLAGBE vs. SHORUN (1985) NWLR (pt.2) 360. When a Court goes out of the proceedings to import and rely on extraneous matters to predicate its decision on, the natural consequence of this cloister justice is a miscarriage of justice. A decision that occasions a miscarriage of justice is also perverse. See MISR vs. IBRAHIM (1975) 5 SC 55; IROLO vs. UKA (2002) 14 NWLR (pt.786) 195 (sc); FBN vs. OZOKWERE (2013) LPELR – 21897 (SC).” Per EKO, J.S.C YARGATA BYENCHIT NIMPAR, J.C.A

PROOF OF SERVICE OF PROCESS IS BY AFFIDAVIT EVIDENCE

See Fumodoh vs. Aboro (1991) 9 NWLR (Pt.214) 2010 at 229; Agbareh& Anor. Vs. Mimra& 2 Ors (2008) 2 NWLR (Pt.1011) 378 at 411 – 412; Badejo vs. Minister of Education (1996) 9 -10 SCNJ 51.” Per GALINJE, J.S.C.
The Court is also empowered to note the absence of proof of service in the Court’s file to conclude the process was not served. Proof of service of a relevant process before any Court must be in the relevant file and not in a different Court and in a matter not between the parties. See NDAYAKO & ORS. VS. DANTORO & ORS. (2004) LPELR-1968(SC) which held:
“Under normal circumstance the best evidence of proof of service of process is by affidavit of service. It is not disputed that there was such document in the Court’s file. That document forms part of the Court’s record which the Court could look at to confirm that there was proofof service even if it was not tendered as an exhibit: See CHIEF M.O.A AGBAISI AND ORS. VS. EBIKOREFE (1997) 4 NWLR (PT. 502) 630, 648; ADE VS. UKU (1977) 5 FCA 218 AT 228; OGBUANYINYA V. OKUDO AND ORS. (1979) 6-9 SC 32, (1979) 3 LRN 318 AT 34; LADUNNI VS. KUKOYI (1972) ALL NLR (PT. 1) 133; SALAMI & ORS. VS. OKE (1987) 4 NWLR (PT. 63) 1 AT 9, (1987) 2 NSCC 1167 AT 1173; U.T.C.(NIG.) LTD. V. PAMOTEI (1989) 3 SCNJ 79 AT 97, (1989) 2 NWLR (PT. 103) 244.” YARGATA BYENCHIT NIMPAR, J.C.A

THE TRUE TEST OF FAIR HEARING
“The law is quite settled that a complaint of lack of fair hearing will only avail a party where he is able to show that he was denied the opportunity of presenting his case. Whether or not he was denied fair hearing depends on the facts and circumstances of the case. It has been held in several decisions of this Court that the crucial determinant of whether or not a party has been denied fair hearing is whether the parties were afforded an equal opportunity to present their case before judgment is delivered. The Court will take an objective view of the entire proceedings. The true test of fair hearing is the impression of a reasonable man present at the trial and whether from his observation, justice has been done in the case. See: Mohammed vs. Kano Native Authority (1968) 1 ALL NLR 424; Akaninwo vs. Nsirim (2008) 1 SC (Pt. III) 151; Otapo vs. Sunmonu (1987) 2 NWLR(Pt. 58) 587 @ 605. See AYOADE VS. STATE (2020) LPELR-49379(SC). YARGATA BYENCHIT NIMPAR, J.C.A

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice, Akwa Ibom sitting in Uyo, coram: Hon. Justice Winifred I. Effiong delivered on the 21st day of March 2016 wherein the Court below dismissed the appeal of the Appellant. Dissatisfied with the decision, the Appellant filed a Notice of Appeal on the 11th April, 2016 setting out 2 grounds of appeal.

​Facts relevant to this appeal are amenable to brevity and I shall summarize them here. The Court below sat on further appeal over a decision of a Senior District Court holden at ObioOffot in Uyo Local Government in suit No. OFDC/2E/2009 in which judgment was against the Appellant herein. The claim before the District Court was for the sharing of their father’s estate amongst the parties. The Appellant was defendant at the District Court. Before the trial district Court delivered its judgment, a different party not the Appellant filed a motion seeking the transfer of the suit to the High Court for consolidation with another suit already pending before the High Court. While the motion was pending, the District Court which was notserved with the motion entered judgment. The Appellant dissatisfied appealed to the senior Magistrate Court which dismissed the appeal and the Appellant proceeded to the High Court on further appeal. The High Court also dismissed the appeal thus this appeal.

The Appellant’s brief settled by SYLVANUS A. OBOT ESQ., was filed on the 21st May, 2018 and deemed on the 22nd January, 2020. It donated 2 issues for determination namely:
1. Whether the Court below was right to have affirmed the decision of learned senior Magistrate that the District Court rightly assumed jurisdiction to proceed with suit NO. OFDC/2E/2009 on the 6th May, 2014 on the ground that there was no proof of service of motion on Notice for transfer duly served on the District Court and therefore Section 37(1) of the Customary Court’s Law of Akwa Ibom State Cap.40 Laws of Akwa Ibom State was not applicable.
2. Whether the Court below was right to have held that the Appellant’s constitutional right to fair hearing including giving of evidence, either by himself or calling of witness and cross examination of opposite party, was not breached in the circumstances of thiscase.

The Respondent’s brief settled by SAMUEL AWAKE ESSIEN ESQ., and it was filed on the 27th August, 2018 but deemed on the 22nd January, 2020. It adopted the issues distilled by the Appellant for determination in this appeal.

Upon a careful perusal of the Notice of Appeal, the record of appeal and the briefs of counsel on both sides, the issues donated by the appellant shall be adopted by the Court for determination in this appeal but shall be so resolved seamlessly.

APPELLANT’S SUBMISSIONS
The Appellant submitted that the Court below erred when it held that by the decision of the learned senior Magistrate complained of under issue 1, I hold that the senior Magistrate was right in examining the veracity and authenticity of the deposition of the Appellant in the said affidavit challenging the record of appeal to come to the conclusion it did. That the Court below went on thereafter to hold that, “I cannot see how such discountenance by the Magistrate will occasion a gross miscarriage of justice on a person who had not filed same. Based on the above, I hold that this appeal fails on ground 1 and the issue is resolvedagainst the Appellant.” He went on to summarize what happened before the Magistrate court thus:
i. That the record of appeal from the District Court was transferred without the motion for transfer of the claim to the High Court for consolidation.
ii. The Appellant’s counsel wrote the Registrar of the District Court to demand that the omitted record be forwarded to the Magistrate Court but the Registrar refused and failed to do so.
iii. The Appellant filed an affidavit challenging record of appeal on 25th November, 2014 and attached a copy of an earlier motion on Notice for transfer and other processes.
iv. That paragraphs 6, 7 and 8 of the affidavit deposed to the facts that the Registrar of trial District Court was served with the process but members of the District Court ignored and proceeded.
v. That the affidavit challenging record was served on both the Registrar of the District Court and counsel for the Respondent but none reacted or opposed same but the appeal went on to hearing.
vi. That in the judgment, the senior magistrate held that the jurisdiction of the Court was not ousted in any way and the appeal fails.

That there was nothing on record to show that the process was before the District Court on 5th May, 2014 and as such there was nothing for the District Court to act on.

The Appellant contended that the Senior Magistrate raised the issue of non service suomotu in HU/MISC.133/2014 for the first time in the judgment inspite of uncontroverted and unchallenged evidence on the record. He alleged that parties were not given a chance to address the Court. He relied on OLAOLU VS. FRN (2015) ALL FWLR (Pt. 794) 45; YAR’ADUA VS. YANDOMA (2015) ALL FWLR (Pt. 770) 1215 and IJEWERE VS. ERIBO (2015) ALL FWLR (Pt. 781) 1561. He submitted that parties were not invited to address the Court. That the Court below affirmed the decision of the senior Magistrate on same grounds that there was no service of the process of HU/MISC.133/2014 in the record of appeal from the District Court. Appellant submitted that the proof of service on the Registrar of the District Court will be in the file at the High Court and not the District Court and that proof of service cannot be part of the record of appeal from the District Court. He contended that the Court erred when it held therewas no proof of service before the District Court.

The Appellant submitted that service of processes in the file before the Chief Judge was effected by the bailiff of the High Court and including the processes served on the Registrar of the District Court and therefore the evidence or proof of service cannot be part of the record of appeal. He contended that the Senior Magistrate failed to call on parties to address her on the issue of service and that if it was done, he could have applied for a CTC of the proof of service.

Furthermore, the appellant noted that Court below was of the view that since suit No. HU/MISC.133/2014 was filed by a third party, not any of the parties in OFDC/2E/2009, then the judgment of District Court was justified to have proceeded to determine the suit whether it was served or not. He contended that the District Court in disregarding the motion for transfer because it was brought by a non party to the suit was wrong. Appellant argued that the District Court should have stayed the proceedings pending the determination by the High Court under Section 37 of the Customary Courts Law of Akwa Ibom State which provides for a stayonce there is an application for transfer by either party. Arguing further on the phrase ‘either party’ the appellant contended that it did not mean a party in the proceedings.

On the failure to accept the affidavit challenging record by the senior magistrate, the Appellant submitted that the exceptions relied upon were not applicable. He urged the Court to find for the appellant under issue one.

On issue two the Appellant submitted that the finding that parties were not denied fair hearing because the decision of the trial district Court was based on the list items submitted to be shared amongst parties was wrong because he was not heard in defence and it therefore breached his right to be heard in defence. He relied on EFFANGA VS. MR. ROGERS (2003) FWLR (Pt. 157) 1058 and AYORINDE VS. CHIEF FAYOYIN (2001) FWLR (Pt. 75) 483. Arguing further, the appellant submitted that once there is a breach of fair hearing it is sufficient to nullify proceedings regardless of whether it occasioned a miscarriage of justice, citing EKPENETU VS. OFEGOBI (2013) ALL FWLR (Pt. 680) 1333. Appellant referred to the features of fair hearing as stated inNDUKAUBA VS. KOMOLO (2005) ALL FWLR (Pt. 248) 1602 and NJIOKWUEMENI VS. OCHEI (2004) 15 NWLR (Pt. 895) 196. He argued that the nature of the case cannot justify the breach of fair hearing as was suggested by the learned Senior Magistrate because sharing of estate is not an exception. He urge the Court to nullify the decision for breach of fair hearing, he relied on UDO VS. CROSS RIVER STATE NEWSPAPER CORPORATION (2002) FWLR (Pt. 104) 665; ZIIDEEH VS. RIVERS STATE CIVIL SERVICE COMMISSION (2007) ALL FWLR (Pt. 243); O.D. DAVIDSON GROUP CONSTRUCTION (NIG) LTD & ANOR V BEES ELECTRICAL CO. LTD. & ANOR. (2000) FWLR (Pt. 63) 154 to urge the court to allow the appeal.

REPONDENT’S SUBMISSIONS
The Respondent in response to the submission that Section 37(1) of the Customary Court’s Law of Akwa Ibom is not applicable because there was no proof of service contended that two grounds relied upon to dismiss the appeal by the Court below are germane and the Court cannot be faulted because Section 37 talks of an application when made by either party shall serve as stay of proceedings and the appellant did show that either party made theapplication. They submitted that parties and their counsel are bound by the record of appeal and no Court can go outside the record of appeal, relied onGARUBA VS. OMOKHODION (2011) LRCN 100 and ADEGBUYI VS. APC & ORS. (2015) 240 LRCN 1.

On the affidavit challenging record, the Respondent’s argued that it cannot take the place of affidavit of service of the motion by the bailiff of the Court as the law is settled a bailiff discharges his duty by deposing to an affidavit, citing A.G. ANAMBRA STATE VS. OKEKE (2002) 99 LRCN 1540. Furthermore, that the affidavit of service states particulars of the process served, date, place and mode of service which shall be proof of service, relied on IDISI VS. ECODRIL NIG. LTD. & ORS. (2016) 260 LRCN 49. That failure to serve a process is fatal and goes to the root of the case and can render the process incompetent. Respondents submitted that the Court cannot go into a private investigation of documents, citing IKPEAZU VS. OTTI & ORS. (2016) 254 LRCN 1.

​Respondents submitted that the decision of the learned Magistrate cannot be faulted, more so, the motion for transfer in HU/MISC.133/2014 was notfiled by the Appellant but one Mrs Margaret EkpoEtim. Furthermore, he submitted that the definition of a party in Section 37 of the Customary Court Law cannot accommodate the contention of the appellant to include a stranger.

On issue two, the Respondents submitted that the Court below held that parties were given fair hearing considering the nature of the case. On fair hearing, they contended that fair hearing as enshrined in the constitution is for all parties but when a party fails to take advantage of an opportunity, then he cannot be heard to complain, relied on EKE VS. OGBONDA (2007) 144 LRCN 391. They referred to the claim before the District Court which was assistance in sharing of their father’s estate which the Appellant made effort to truncate twice with applications for transfers which were all dismissed. The Appellant participated in the submission of list of properties to be shared, several visit to different pieces of land and when matter was adjourned for decision, he refused to attend Court on judgment date. Respondents argued that the appellant cannot whip up sentiments of fair hearing when he participated and knew of the judgment datebut choose to stay away, they relied on EKUNOLA VS. CBN & ANOR (2013) 225 LRCN (Pt.1) 199. They submitted that fair hearing was not breached and the appeal should be dismissed.

RESOLUTION
The Appellant under the first issue questions the competence of the District Court to proceed to judgment when there was a pending application for transfer which he alleged was served on the Court. The Court below found otherwise because there was no proof of service before the Court and dismissed the appeal. The ground upon which the appellant maintained his stands was because there was no counter affidavit to Appellant’s affidavit. As posited by the Court below, it is not every time that an affidavit is not countered that it must be relied upon. It is trite that there are exceptions to the rule that when facts in an affidavit are not countered they stand admitted, true and must be relied upon, see EXCHANGE ASSURANCE (NIG) LTD. VS. ASWANI TEXTILE INDUSTRIES LTD. (1992) 3 NWLR (Pt. 227) 1 where it restated thus:
“If an affidavit is self contradictory or if the facts contained therein are presumed to be true and when taken together are notsufficient to sustain the prayers of the Applicant, it would be needless for a Respondent to file a counter affidavit.”
Some the exceptions to the rule are as follows:
i. If the affidavit is self contradicting
ii. If the facts contained therein are not worth countering by the filing of a counter affidavit in opposition
iii. Where the depositions in an affidavit is in conflict with documents or documentary evidence in the case, the Court will reject the deposition even where there is no counter affidavit.
SeeC.C. ONYEMELUKWUE VS. WEST AFRICAN CHEMICAL COMPANY LIMITED (1995) 4 NWLR (Pt. 387) 24 at 55.
The Appellant therefore cannot go to town with the fact that his affidavit was not countered and therefore the facts deposed therein are sacrosanct. As found by the Court below, the Senior Magistrate was right in examining the affidavit along the record of the trial District Court to arrive at a decision. The issue basically was one of service of a process in pending proceedings. It is settled that Court processes are served by officers of Court called Bailiffs and they as a matter of practice swear to affidavits of servicesetting out the facts, place, mode of service, date and the particular process served, see A.G. ANAMBRA STATE VS. OKEKE (2002) LPELR-604(SC). The document allegedly served was a motion seeking transfer of the suit before the District Court to the High Court for consolidation with another pending suit before the chief Judge. The findings by the Court below was that the motion was filed by a non party and was not served on the District Court. The record of proceedings did not also indicate that the District Court was aware of the said motion. The argument of the Appellant is that the proof of service was before the High Court. It is absurd for the Appellant to expect the record of service before the High Court to be part of the record before the District Court without taking the proper step to bring such a process into the record of the District Court. How did the Appellant expect that the District Court would be bound by an application not made before it and not brought to its attention? A more vitiating aspect of it was that the said process was filed a non party. A Court cannot go outside its record to determine any issue, that would be perverse and perversedecisions are usually set aside, see UGBOJI VS. STATE (2017) LPELR-43427 (SC) where the apex court described a perverse decision as follows:
“The decision is perverse, if among other things, the Court took into consideration matters extraneous to the facts in issue, or matters which it ought not to have taken into consideration. See ATOLAGBE vs. SHORUN (1985) NWLR (pt.2) 360. When a Court goes out of the proceedings to import and rely on extraneous matters to predicate its decision on, the natural consequence of this cloister justice is a miscarriage of justice. A decision that occasions a miscarriage of justice is also perverse. See MISR vs. IBRAHIM (1975) 5 SC 55; IROLO vs. UKA (2002) 14 NWLR (pt.786) 195 (sc); FBN vs. OZOKWERE (2013) LPELR – 21897 (SC).” Per EKO, J.S.C
The appellant sought that the District Court should hand down a perverse decision by looking beyond what was before it and to take a decision with regards to an application also not before it. The motion seeking for transfer was not before the District Court and it couldn’t have done otherwise than to proceed to hand down its decision as it did. I also agree with the Courtbelow that the District court was not in error.
More fundamentally, the application for transfer was not made by a party in the proceedings before the District Court that is in HU/MISC.133/2014, it was made by Mrs. Margaret Ekpo who was not a party in the matter before the District Court, this bring up Section 37 of the Customary Law of Akwa Ibom State into play. It provides thus:
“Any application for an Order of Transfer made by either party shall operate as a stay of proceedings before the District Court”.
The contention of the parties here is the phrase “either party” which the Appellant says includes other persons who are not before the Court as parties. That interpretation is outlined and cannot be stretched to include strangers to the proceedings. Why would a stranger or an interloper be allowed to interfere with proceedings before the Court? To allow such interference is to open the doors of justice to absurdity in judicial proceedings. Either party means one of the parties before the Court and not any other person not listed in the matter before the Court. Obviously, the application for transfer even if before theDistrict Court as long as it was not made by either party, the Court has no business countenancing with such an application and therefore, it was in order to proceed to hand down its decision. There was nothing to inform its staying proceedings. The operative words in “any application for transfer” is circumscribed by either party before the Court as the only ones qualified to make the application that the Court can recognize and stay proceedings. It is certainly not for a stranger to the proceedings.
Therefore, the application upon which the Appellant seeks to stand on is not one contemplated by the statutory provision and cannot enure him any benefit. More so, it was not shown to have been served on the Registrar of the Court. The argument of the Appellant is preposterous and holds no water.
There is the issue raised by the Appellant alleging that the Court below raised the issue of non servicesuomotu. I agree that a Court of law is not permitted to raise any issue suomotu and proceed to determine the issue without giving parties an opportunity to address the Court before it is determined, see COOKEY VS. FOMBO & ANOR. (2005)LPELR-895(SC) where the apex Court held thus:
“It is also the law that a Court should not take up a point suomotu and decide the matter before it on that point without hearing the parties: see U.B.A. Ltd. vs. Achoru (1990) 6 NWLR (Pt. 156) 254; Okafor vs. Attorney-General and Commissioner for Justice, Rivers State (1998) 7 NWLR (Pt.556) 38, 31 LRCN 3679 at 2713; Katto vs. Central Bank of Nigeria (1999) 69 LRCN 1119, (1999) 6 NWLR (Pt. 607) 390.”
The Appellant was the party who raised the issue of service of the motion seeking transfer and even attempted to use it to challenge the record of appeal. Even though, the process in contention was not filed by the Appellant. How the appellant can wake up to claim a process of a third party and seek to use it in the manner sought is very interesting but absurd.
What the Court below did was to look at the record of appeal and make a finding, a Court is entitled to look into the record before it and make findings, see ABIODUN VS. FRN (2018) 43838(SC) which held:
“The lower Court was entitled to look into any document in its record and make use of it in order to arrive at a just decision. When adocument is in the record of the Court, it cannot be a new issue on which a judge is precluded from looking at. This Court has in a number of decided cases held that a Court of law is entitled to look into its record and make use of any document it considers relevant in determining issues before it. See Fumodoh vs. Aboro (1991) 9 NWLR (Pt.214) 2010 at 229; Agbareh& Anor. Vs. Mimra& 2 Ors (2008) 2 NWLR (Pt.1011) 378 at 411 – 412; Badejo vs. Minister of Education (1996) 9 -10 SCNJ 51.” Per GALINJE, J.S.C.
The Court is also empowered to note the absence of proof of service in the Court’s file to conclude the process was not served. Proof of service of a relevant process before any Court must be in the relevant file and not in a different Court and in a matter not between the parties. See NDAYAKO & ORS. VS. DANTORO & ORS. (2004) LPELR-1968(SC) which held:
“Under normal circumstance the best evidence of proof of service of process is by affidavit of service. It is not disputed that there was such document in the Court’s file. That document forms part of the Court’s record which the Court could look at to confirm that there was proofof service even if it was not tendered as an exhibit: See CHIEF M.O.A AGBAISI AND ORS. VS. EBIKOREFE (1997) 4 NWLR (PT. 502) 630, 648; ADE VS. UKU (1977) 5 FCA 218 AT 228; OGBUANYINYA V. OKUDO AND ORS. (1979) 6-9 SC 32, (1979) 3 LRN 318 AT 34; LADUNNI VS. KUKOYI (1972) ALL NLR (PT. 1) 133; SALAMI & ORS. VS. OKE (1987) 4 NWLR (PT. 63) 1 AT 9, (1987) 2 NSCC 1167 AT 1173; U.T.C.(NIG.) LTD. V. PAMOTEI (1989) 3 SCNJ 79 AT 97, (1989) 2 NWLR (PT. 103) 244.”
The Court did not raise the issue suomotu because the Appellant had referred the Court below to his affidavit challenging record which he deposed to the fact of service. The Court below merely noted the absence of proof of service and appellant’s affidavit cannot take the place of an affidavit of service which was sworn to by the bailiff.

The second issue formulated by the Appellant alleges breach of right to fair hearing which was over ruled by the Court below. From the record of appeal, there was no time the matter was heard behind the Appellant except the day judgment was delivered and which was known to him but he declined to be in Court. There was no time the Respondents were given ahearing behind the Appellant. Fair hearing is nothing more than an opportunity to be heard, once that opportunity is given; there cannot be a breach of fair hearing. Whether a party who had an opportunity of being heard but did not utilize it can bring an action for breach of fair hearing:
“The law is quite settled that a complaint of lack of fair hearing will only avail a party where he is able to show that he was denied the opportunity of presenting his case. Whether or not he was denied fair hearing depends on the facts and circumstances of the case. It has been held in several decisions of this Court that the crucial determinant of whether or not a party has been denied fair hearing is whether the parties were afforded an equal opportunity to present their case before judgment is delivered. The Court will take an objective view of the entire proceedings. The true test of fair hearing is the impression of a reasonable man present at the trial and whether from his observation, justice has been done in the case. See: Mohammed vs. Kano Native Authority (1968) 1 ALL NLR 424; Akaninwo vs. Nsirim (2008) 1 SC (Pt. III) 151; Otapo vs. Sunmonu (1987) 2 NWLR(Pt. 58) 587 @ 605. See AYOADE VS. STATE (2020) LPELR-49379(SC).
The effect of a breach of the right to fair hearing is that the entire proceedings and any judgment or order made therein become a nullity. See:AUDU VS. F.R.N (2013) LPELR – 19897 (SC) 13; AKINFE VS. THE STATE (1988) 3 NWLR (PT. 85) 729; BAMGBOYE VS. UNIVERSITY OF ILORIN (1999) 10 NWLR (PT. 622) 290. Conversely, it has been held severally, that where the Court creates an enabling environment for the parties to ventilate their grievances, either in the prosecution or defence of their case, the failure of a party to take advantage of such conducive environment cannot be the basis for a complaint of lack of fair hearing. See MFA & ANOR. VS. INONGHA (2014) 1-2 SC (PT. 1) 43; INAKOJU VS. ADELEKE (2007) LPELR – 1510 (SC).
It is clear on the record that the trial District Court the appellant participated in the visits to the various lands to be shared, he was in Court all through and no party called any witness or testified because the nature of the case did not warrant such procedure (see pages 208-210 of the record of Appeal). All that was before the District Court was a list ofproperties to be shared, both participated in visits to locus in quo, appellant did not challenge the list and did not raise any issue on the visits made to the various pieces of land. Appellant did not make any application that was not considered by the day judgment was handed down, he was aware and acquiesced all through. He cannot be heard to complain at this stage. The Appellant is merely trying to use the term breach of fair hearing to whip up sentiments. Parties were treated equally and I also do not see where there was a breach of fair hearing as would nullify the proceedings. I agree with the Court below in finding against the Appellant. This appeal lacks merit and is hereby dismissed.

The judgment of the Court below delivered on the 21st May, 2018 is hereby affirmed.
Cost of N100,000.00 only is awarded against the Appellant, in favour of the Respondents.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the opportunity of reading in draft the judgment delivered by my learned brother Yargata B. Nirnpar, JCA.
I totally agree with the reasoning and conclusion.
I also dismiss the appeal. I abide by the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: My learned brother, B. Nimpar, JCA afforded me with the opportunity of previewing the judgment just delivered.

I agree the reasoning and conclusion that the appeal is bereft any substance. I joined my learned brother in dismissing the appeal for lacking in merit. I abide by the consequential orders.

Appearances:

SYLVANUS A. OBOT ESQ.For Appellant(s)

SAMUEL AWAKEESSIEN ESQ.For Respondent(s)