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UDEME v. ARCHIBONG (2020)

UDEME v. ARCHIBONG

(2020)LCN/15657(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, March 30, 2020

CA/C/479/2017

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

UchechukwuOnyemenam Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

HON. BARR. MFON UDEME APPELANT(S)

And

EMMANUEL IME ARCHIBONG RESPONDENT(S)

 

RATIO:

ALL  LOWER  COURTS MUST CONSIDER ALL ISSUES PLACED BEFORE THEM

By the elementary principle of law, the trial Court was duty bound to evaluate and resolve all the issues as formulated by parties. The apex Court Per C. C. Nweze, JSC in HONEYWELL FLOUR MILLS PLC V. ECOBANK (2018) LPELR – 45127 (SC); held thus: “It is now well settled that, except in clearest of terms, it is the duty of all lower Courts to consider all issues placed before them.” see: A. G. LEVENTIS PLC V AKPU (2007) LPELR 5 (SC); OWODUNNI V. REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST AND ORS (2000) 6 SC (PT. II) 60; [2000] 6 SCNJ (PT. 299) 426,422; IKPEAZU V. OTTI AND ORS (2016) LPELR- 40055 (SC) 19; A – C; KATTO V. CBN (1991) 9 NWLR (PT. 240) 126, 149; OKONJI V. NJOKANMA [1991] 7 NWLR (PT. 202) 131, 150; CHUKWU V. SOLEH BONEH (2000) 2 SCNJ 18, 38; BRAWAL SHIPPING (NIG) LTD V. F. I. ONWADIKE CO. LTD (2000) 6 SCNJ 508, 522; OJOGBUE V. NNUBIA [1972] 6 SC 227; YAKASSAI V. INCAR MOTORS LTD. (1975) 5 SC 107; CITEC INTERNATIONAL ESTATE LIMITED & ORS V. JOSIAH OLUWOLE FRANCIS & ORS (2014) LPELR – 22314 (SC); C.N. OKPALA AND SONS LTD V. NIGERIAN BREWERIES PLC (2017) LPELR-43826(SC) 17; A –F. To achieve this purpose, the trial Court was required to place the evidence of the parties side by side on an imaginary scale to weigh them and then proceed in resolving the issues by accepting one and rejecting the other. He will then decide the matter on the balance of probabilities or preponderance of evidence. See: OLONADE V. SOWEMIMO (2014) 14 NWLR (PT. 1428) 472.

THE JUDEGMENT OF A COURT MUST BE SPECIFIC AND ALL ISSUES MUST BE DETERMINED BEFORE THE CONCLUSION OF A CASE

It is an age long principle of law that the judgment of a Court must be precise and specific in terms and must resolve all the issues posed for determination. A Judge must never leave any material issue or issues raised by a party or parties to the suitwithout considering and determining same before concluding the case. Failure to do so will tantamount to denial of justice or fair hearing. See: YUSUF V. ADEGOKE (2007) 30 NSCQR (PT.1) 269; ODETAYO V. BAMIDELE (2007) 30 NSCQR (PT.2) 915; ONWE & ORS V. NWAOGBUINYA & ORS (2001) 5 NSCQR 53.
It does appear to me from numerous apex Court decisions that there are occasions where failure of the trial Court or this Court to pronounce on all issues will not lead to a reversal of the decision UCHECHUKWU ONYEMENAM, J.C.A

IT IS NOT A MICARRIAGE OF JUSTICE WHERE A PARTICULAR ISSUE IS NOT DETERMINED

See: UZUDA V. EBIGAH (2009) 15 NWLR (PT. 1169) 1 S.C.; (2009) LPELR-3458 (S.C);BRAWAL SHIPPING V. ONWADIKE & CO. (2000) 6 SCNJ 509.
From the above, it is obvious that there has been a major shift from the general principle of law that the mere fact that an intermediate Court fails to pronounce on an issue vitiates the decision. It is settled law that when an issue placed before the Court is not crucial or material and as such does not necessarily determine the real issue between the parties, non reference or pronouncement on it by the Court does not prima facie amount to denial of fair hearing nor adjudged to have occasioned a miscarriage of justice. See: F.M.H. V. C.S.A LTD. (2009) 9 NWLR (PT. 1145) 193 AT 222 PARAS D – E where Mustapher CJN as he then was, opined: “In my respective view, it does not constitute a denial of fair hearing or occasion miscarriage of justice merely because a trial or appellate Court did not consider a particular issue or issues for consideration in the determination of a case” UCHECHUKWU ONYEMENAM, J.C.A. 

THE GENERAL PRINCIPLE OF FAIR HEARING

I therefore hold that the refusal, failure and or neglect by the trial Court to consider and resolve the issues posed for determination by the Appellant is tantamount to denial of justice or fair hearing to the Appellant, which breach of the principle of fair hearing to the Appellant renders the judgment of the trial Court no decision, null and void and of no effect. This stems on the established principle of law that where there is a breachof the rule of natural justice of fair hearing, the proceedings in the case are null and void. Once the principle is violated, it does not matter whether if the proper thing had been done, the decision would have been the same. The proceedings will still be null and void. See: SALU V. EGEIBON (1994) 6 SCNJ (PT.2) 223; SALEH V. MONGUNO (2003) 1 NWLR (PT.801) 221; GBAGARIGHA V. GEORGE (2005) 1 NWLR (PT.953) 163 AT 171 R.11; ADIGUN V. ATTORNEY GENERAL OF OYO STATE (1987) 1 NWLR (PT.53) 678; EJEKA V. THE STATE(2003) 7 NWLR (PT.819) 408 UCHECHUKWU ONYEMENAM, J.C.A. 

A DENIAL OF FAIR HEARING CAN BE SETTLED BY MAKING AN ORDER OF RETRIAL OR REHEARING

Where as in this case I have held that failure of the trial Court to consider and pronounce on material issues to the just determination of the case subject of this appeal amounts to the violation of the Appellant’s right to fair hearing; the position of the law is long settled that once there is a denial of fair hearing, which is a breach of the principle of the rules of natural justice, the only order that can be made by an appeal Court is one of retrial or rehearing to enable the appellant to be properly heard and not shut out. See: DANLADI V. DANGIRI & ORS. (2014) LPELR – 24020 (SC); OTAPO V. SUNMONU (1987) 2 NWLR (PT. 58) 587; SALU V. EGEIBON (1994) 6 NWLR (PT. 348) 23. UCHECHUKWU ONYEMENAM, J.C.A. 

 

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State sitting in Uyo delivered on 27th October, 2016, Per Margaret-Mary E. Udoma, J.

The Respondent instituted this action against the Appellant via Writ of Summons claiming as follows:
a. The sum of N12,000,000.00 being the agreed sum between the Claimant and the Defendant to restore the Claimant to his status before the demolition of his twin bungalow as a result of the fraud of the Defendant.
b. Interest on the said N12 million at the rate of 10% per annum for 1st February 2012 till judgment is delivered and at the same rate until the total liquidation of the debt.
c. Cost of this action accessed at N100,000.00

The Respondent averred that the Appellant sold a parcel of land to him at the cost of N3,750,000.00 and a power of Attorney was donated to him by the Appellant to that effect. The said Power of Attorney was marked as Exhibit 1. The Respondent took possession of the said land and surveyed same through the services of Surveyor F. E. Udoh. The survey Plan No. FE/AK/2/2011/38 and its certificate of Deposit were both admitted and marked Exhibits 8 and 9, respectively.

The Respondent’s case also was that while he had commenced the building of twin flats on the land up to the stage of roofing, one Princewill Albert Akpan, whom he later discovered had previously acquired the same land from the Appellant, invaded the site with policemen and workmen and destroyed the Respondent’s house with the fence to the foundation. The Respondent contacted the Appellant who apologized and undertook to compensate the Respondent by giving him his adjourning land with his uncompleted building and also provide funds in the sum of N 12,000,000 to restore him to his former state with regards to his house before the demolition. The parties executed a Memorandum of Understanding (Exhibit 6) to that effect with their respective witnesses. Flowing from the agreement in the Memorandum of Understanding, the Appellant donated another Power of Attorney (Exhibit 5) to the Respondent in respect of the new land with an uncompleted building on it. Exhibit 5 was executed by both parties and their respective witnesses.

The Respondent also stated that the Appellant refusedto pay him the agreed sum of N12,000,000.00 which he undertook to pay to him to restore him to his former state before the demolition of his house on the land, despite several demands including his Lawyer’s letter of demand (Exhibit 7).

The Appellant filed his Defence and a Counter-claim wherein he denied all the claims of the Respondent stating his own side of the story. He also contended that, as there is a covenant not to sue in Exhibit 6 which estops the Respondent from instituting this suit; as well as a clause in Exhibit 5 which renders null and void any other documents in respect of the transaction, the Respondent’s action must fail.

The trial Court delivered its judgment on 27th October, 2016; granting all the reliefs sought by the Respondent. Dissatisfied with the said judgment, the Appellant filed his Notice of Appeal on 25th January, 2017.

The appeal was heard on 28th January, 2020. The Appellant’s brief was settled by Dasil Akpan Esq., while the Respondent’s brief was prepared by C. I. Odo, Esq.

The Appellant distilled five issues for determination, to wit:
1. Whether failure, refusal and or neglectby the learned trial judge to consider, resolve and make specific pronouncement on the issue brought before him for determination by the Defendant/Appellant did not occasion injustice and denial of fair hearing to the Appellant?
2. Whether failure, refusal and neglect by the learned trial judge to properly appraise, assess and evaluate the evidence adduced at the trial did not occasion injustice to the Appellant thereby rendering the judgment a nullity?
3. Whether the learned trial judge did not err in law by holding that “covenant not to sue” ousts the jurisdiction of the Court?
4. Whether the learned trial judge was right when he awarded pre-judgment and post judgment interest to the Respondent when there was neither express nor implied agreement to that effect and no evidence was led thereon by the Respondent?
5. Whether the cost of 100,000.00 awarded by the learned trial judge in favour of the Respondent against the Appellant was a judicial and judicious exercise of the Court’s discretion?

The Respondent adopted the issues raised by the Appellant but however re-couched and reduced the issues to three, viz:
1. Whether the learned trial Judge in its judgment failed to evaluate and/or resolve the issues of the Appellant to warrant the setting aside of its judgment by this Court.
2. Whether the learned trial judge was wrong to declare the covenant not to sue to be null and void for restricting the constitutional right of the Respondent to Court.
3. Whether the award of pre-judgment and post judgment interest to the Respondent and the award of cost of N100,000.00 were justifiable in the circumstances of this case.

Since the issues distilled by both parties are the same, I will adopt the issues as re-couched by the Respondent for the determination of this case.

SUBMISSIONS ON ISSUE 1
“Whether the learned trial Judge in its judgment failed to evaluate and/or resolve the issues of the Appellant to warrant the setting aside of its judgment by this Court”

Mr. Akpan submitted that the trial Court failed to resolve or make specific pronouncement on the issues raised by the Appellant for determination. He argued that the error is tantamount to denial of justice and fair hearing to the Appellant which renders the judgment null and voidand of no effect. He referred to: YUSUF V. ADEGOKE (2007) 30 NSCQR (PT. 1) 269 AT 297; ODETAYO V. BAMIDELE (2007) 30 NSCQR (PT. 2) 915 AT PP. 926 AND 927; GBAGARIGHA V. GEORGE (2005) 1 NWLR (PT. 953) 163 AT 171 R.11.

The learned counsel contended that the trial Court’s judgment was perverse for failing to properly evaluate the evidence adduced by both parties on the balance of probabilities, thereby occasioning a miscarriage of justice to the Appellant. He cited: MBANI V. BOSI (2006) 1 NWLR (PT. 991) 400 AT PAGE 414; USHAE V. COP (2005) 11 NWLR (PT. 937) 449 AT 534.

He urged the Court to invoke its power under Section 15 of the Court of Appeal Act and resolve the issues raised by the Appellant.

Mr. Odo, arguing for the Respondent, submitted that the duty of evaluation and resolution of issues formulated by parties to a case is that of the trial Court. He argued that the learned trial Judge properly evaluated and resolved the issues raised by both parties before arriving at its judgment granting the three reliefs prayed by the Respondent and dismissing the Counter Claim of the Appellant, which was wrongly typed objection. He cited: UKEJE V. UKEJE (2014) 11 NWLR (PT 1418) 384.

Replying, the Appellant’s counsel submitted that the trial Court gave opinions in its judgment rather than evaluate evidence before it. It is his argument that the trial Court did not adopt the proper method for evaluating evidence in a civil case, citing MADAM RABIATU ODOFIN & ORS. V. A. R. MOGAJI &ORS.(1978) 3 S. C. 91 AT 93, (2004) LC VOL. 1 686 AT 696. He urged the Court to re-evaluate the evidence adduced at the trial with a view to arriving at a just decision, citing CHUKWU & ORS. V. AMADI & ORS. (2009) 3 NWLR (PT. 1127) 56.

RESOLUTION OF ISSUE 1
The duty of a trial judge is to consider in whole, the evidence adduced before it by parties in order to determine which is weightier. Therefore in deciding the set of facts given in evidence by both parties in a civil case preferable to the other, after a summary of all the facts, the two set of facts must be put on an imaginary scale, and weighed against each other, then the Court will decide on the preponderance of credible evidence which weighs more, accept it in preference to the other and then apply the proper law to it. See:OLUBODE & ORS. V. SALAMI (1985) LPELR – 2607 (SC); MOGAJI V. ODOFIN (1978) 4 SC. 91. On appeal thereafter, the duty of the Court of Appeal is to consider and weigh carefully the totality of the evidence before the trial Court and to set any finding aside if it comes to the conclusion that it is wrong. But where, a trial Court had duly considered which evidence to accept on the balance of probabilities an appeal Court would not disturb the finding of fact unless it is satisfied that such a finding is unsound.
A trial Judge has the primary duty to receive admissible evidence, assess it, give it probative value and make specific findings of fact thereon. A Judge must carefully examine the evidence and clearly understand and appreciate the issues he has to resolve in the case, and then proceed to resolve them. His duty is to reach a decision upon the basis of what is in issue and that what has been demonstrated upon the evidence by the parties and is supported in law: see: ADELEKE & ORS V. IYANDA & ORS. (2001) LPELR – 114 (SC); BORNU HOLDINGS LTD V. BOGOCO (1971) 1 ALL NLR 324; ADENIJI V. ADENIJI (1972) 4 SC 10 AT 17; SHODEINDE V. THE REGISTERED TRUSTEES OF THE AHMADIYYA MOVEMENT-IN-ISLAM (1983) 2 SCNLR 284 AT 320.
Where he fails in this regard, it is an invitation to the appellate Court to intervene and if the appellate Court can make its own findings from the evidence available, it will interfere with the findings of the trial Judge since it is in as good a position as the trial Court on that score. See: FATOYINBO V. WILLIAMS (ALIAS) SANNI (1956) SCNLR 274 AT 275; LAWAL V. DAWODU (1972) 1 ALL NLR (PT.2) 270 AT 286; OKPALOKA V. UMEH (1976) NSCC (VOL. 10) 519 AT 533.

In the instant case, the issue is whether the trial Court evaluated and resolved all the issues submitted to it by the Appellant in the determination of the case. At the trial Court, the Appellant in his final written address formulated four issues for determination by the trial Court viz –
a. Whether the Claimant can resile from Exhibits 5 and 6 which embody the terms and conditions of the contract agreement voluntarily entered into with the Defendant?
b. Whether the Claimant can maintain this action against the Defendant in view of his covenant not to sue embodied in Exhibit 6 upon which the claim of theClaimant is predicated?
c. Whether exhibits 1 and 6 relating to the land transaction in issue were not rendered null and void, unenforceable and of no effect whatsoever in view of the supremacy of Exhibit 5 over every other document relating thereto?
d. Whether the defendant is entitled to his Counter claim?
See: page 124 of the records.

By the elementary principle of law, the trial Court was duty bound to evaluate and resolve all the issues as formulated by parties. The apex Court Per C. C. Nweze, JSC in HONEYWELL FLOUR MILLS PLC V. ECOBANK (2018) LPELR – 45127 (SC); held thus: “It is now well settled that, except in clearest of terms, it is the duty of all lower Courts to consider all issues placed before them.” see: A. G. LEVENTIS PLC V AKPU (2007) LPELR 5 (SC); OWODUNNI V. REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST AND ORS (2000) 6 SC (PT. II) 60; [2000] 6 SCNJ (PT. 299) 426,422; IKPEAZU V. OTTI AND ORS (2016) LPELR- 40055 (SC) 19; A – C; KATTO V. CBN (1991) 9 NWLR (PT. 240) 126, 149; OKONJI V. NJOKANMA [1991] 7 NWLR (PT. 202) 131, 150; CHUKWU V. SOLEH BONEH (2000) 2 SCNJ 18, 38; BRAWAL SHIPPING (NIG) LTD V. F. I. ONWADIKE CO. LTD (2000) 6 SCNJ 508, 522; OJOGBUE V. NNUBIA [1972] 6 SC 227; YAKASSAI V. INCAR MOTORS LTD. (1975) 5 SC 107; CITEC INTERNATIONAL ESTATE LIMITED & ORS V. JOSIAH OLUWOLE FRANCIS & ORS (2014) LPELR – 22314 (SC); C.N. OKPALA AND SONS LTD V. NIGERIAN BREWERIES PLC (2017) LPELR-43826(SC) 17; A –F. To achieve this purpose, the trial Court was required to place the evidence of the parties side by side on an imaginary scale to weigh them and then proceed in resolving the issues by accepting one and rejecting the other. He will then decide the matter on the balance of probabilities or preponderance of evidence. See: OLONADE V. SOWEMIMO (2014) 14 NWLR (PT. 1428) 472.

​The judgment of the Court below is at pages 177 to 187 of the record. At page 177 lines 12-25, the learned trial Judge gave a summary of the history of the case. From pages 177 lines 26 – 29 to page 179 lines 1 – 8 he restated the evidence adduced by the Claimant/Respondent at the trial while from page 179 lines 9 – 36 to page 182 lines 1 – 2, the learned trial Judge extensively reproduced the averments in the Appellant’s statement of defence and counter claim. Frompages 182 to 185 lines 1 – 6 the trial Court summarized the written addresses of the parties. What may be considered as the trial Court’s evaluation and resolution of the issues as raised are found at pages 185 – 187 of the records.

Throughout his judgment, the learned trial judge was silent on most material issues posed for determination by the Appellant. This judicial silence on the issues raised by the Appellant was not golden because the law required the learned trial Judge to speak to the evidence both oral and documentary placed before him by placing them on the imaginary scale, observe their weight and pronounce on them. For this the Appellant contended that the judgment of the learned trial Judge entered in favour of the Respondent would have been otherwise if the Court had, based on the evidence before him, considered and resolved the issues/questions posed by the Appellant.

It is an age long principle of law that the judgment of a Court must be precise and specific in terms and must resolve all the issues posed for determination. A Judge must never leave any material issue or issues raised by a party or parties to the suitwithout considering and determining same before concluding the case. Failure to do so will tantamount to denial of justice or fair hearing. See: YUSUF V. ADEGOKE (2007) 30 NSCQR (PT.1) 269; ODETAYO V. BAMIDELE (2007) 30 NSCQR (PT.2) 915; ONWE & ORS V. NWAOGBUINYA & ORS (2001) 5 NSCQR 53.
It does appear to me from numerous apex Court decisions that there are occasions where failure of the trial Court or this Court to pronounce on all issues will not lead to a reversal of the decision. This Court captured it when Per Onyemenam, JCA in SHITTU V. KWARA STATE POLYTECHNIC, ILORIN & ORS (2014) LPELR – 23820 (CA); held:
“The trial Court as well as this Court are not final Courts and as such, are duty bound to pronounce on all issues submitted to it for adjudication unless for some special circumstances which includes: where the issue is;
(a) merely hypothetical or academic,
(b) not crucial as to lead to a miscarriage of justice,
(c) an order for retrial is necessary,
(d) the judgment is considered a nullity in which case there will be no point to decide on all the issues which could arise at retrial or in a freshaction as the case may be;
(e) subsumable under another one or where the Court framed its own issue that encompassed all the issues placed before it.”
See: UZUDA V. EBIGAH (2009) 15 NWLR (PT. 1169) 1 S.C.; (2009) LPELR-3458 (S.C);BRAWAL SHIPPING V. ONWADIKE & CO. (2000) 6 SCNJ 509.
From the above, it is obvious that there has been a major shift from the general principle of law that the mere fact that an intermediate Court fails to pronounce on an issue vitiates the decision. It is settled law that when an issue placed before the Court is not crucial or material and as such does not necessarily determine the real issue between the parties, non reference or pronouncement on it by the Court does not prima facie amount to denial of fair hearing nor adjudged to have occasioned a miscarriage of justice. See: F.M.H. V. C.S.A LTD. (2009) 9 NWLR (PT. 1145) 193 AT 222 PARAS D – E where Mustapher CJN as he then was, opined: “In my respective view, it does not constitute a denial of fair hearing or occasion miscarriage of justice merely because a trial or appellate Court did not consider a particular issue or issues for consideration in the determination ofa case”
​The learned trial judge, in the instant appeal, only determined whether the Respondent could maintain the action in view of his covenant not to sue in Exhibit 6. He did not determine whether the claimant can resile from Exhibits 5 and 6 which embodied the terms and conditions of the contract between them. Neither did he determine whether or not the Appellant is entitled to his counter Claim. Nor did he also determine whether Exhibit 5 rendered Exhibit 6 unenforceable, null and void. The 3 referred issues which the trial Court failed to consider and pronounce on were material issues crucial to the just determination of the Appellant’s case particularly, the Counter Claim which is a separate action. I therefore hold that the refusal, failure and or neglect by the trial Court to consider and resolve the issues posed for determination by the Appellant is tantamount to denial of justice or fair hearing to the Appellant, which breach of the principle of fair hearing to the Appellant renders the judgment of the trial Court no decision, null and void and of no effect. This stems on the established principle of law that where there is a breachof the rule of natural justice of fair hearing, the proceedings in the case are null and void. Once the principle is violated, it does not matter whether if the proper thing had been done, the decision would have been the same. The proceedings will still be null and void. See: SALU V. EGEIBON (1994) 6 SCNJ (PT.2) 223; SALEH V. MONGUNO (2003) 1 NWLR (PT.801) 221; GBAGARIGHA V. GEORGE (2005) 1 NWLR (PT.953) 163 AT 171 R.11; ADIGUN V. ATTORNEY GENERAL OF OYO STATE (1987) 1 NWLR (PT.53) 678; EJEKA V. THE STATE(2003) 7 NWLR (PT.819) 408.
I therefore hold that the judgment of the learned trial Judge neither considered, resolved nor made specific pronouncement on the three main and material issues brought before him for determination. I accordingly resolve issue 1 in favour of the Appellant.

The learned counsel for the Appellant invited the Court to invoke the provisions of Section 15 of the Court of Appeal Act, and resolve the issues raised by the Appellant, which issues were not determined by the trial Court contending that where there is sufficient material before an appellate Court in respect of an issue which trial Court had failed to treat or advertits mind to such issue shall be resolved by the appellate Court. Where as in this case I have held that failure of the trial Court to consider and pronounce on material issues to the just determination of the case subject of this appeal amounts to the violation of the Appellant’s right to fair hearing; the position of the law is long settled that once there is a denial of fair hearing, which is a breach of the principle of the rules of natural justice, the only order that can be made by an appeal Court is one of retrial or rehearing to enable the appellant to be properly heard and not shut out. See: DANLADI V. DANGIRI & ORS. (2014) LPELR – 24020 (SC); OTAPO V. SUNMONU (1987) 2 NWLR (PT. 58) 587; SALU V. EGEIBON (1994) 6 NWLR (PT. 348) 23.
This can only be the right order as a decision where fair hearing is wanting is a nullity and being a nullity the proceedings too will be null and void meaning there will be no subsisting proceedings to found any issue or issues for the appellate Court to determine. For this therefore, I cannot grant the prayer of the Appellant to invoke the provisions of Section 15 of the Court of Appeal Act, in thecircumstances of this case.
Also for the same reason that both the proceedings and decision of the trial Court is a nullity, I will not proceed to determine the other issues as the same will be a waste of judicial time. In sum therefore, I find merits in the appeal, the same succeeds and is allowed.
I declare the decision of the High Court of Akwa Ibom State in Suit No. HU/126/2014 delivered on 27th October, 2016 a nullity.
I Order the case file to be remitted to the Chief Judge of Akwa Ibom State for reassignment to a different Judge of the jurisdiction for its hearing and determination.

I make no Order as to Costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I AGREE.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I read in draft the leading judgment of my learned brother, ONYEMENAM, JCA. I agree with my noble lord that where a judge leaves any material issue or issues raised by a party or parties to the suit without considering and determining same in his judgment, such failure amounts to denial of fair hearing. A judgment obtained against the principle of fair hearing no matter how well conducted, written and delivered with eloquence, is a nullity.

The question is not whether injustice has been done because of lack of fair hearing. It is whether a party entitled to be heard before deciding, had in fact been given opportunity of a hearing. See KOTOYE V. CBN (1989), NWLR (prt 98) 419 A. G. RIVERS STATE V. UDE (2006) 12 NWLR (prt 1008) 436, OYEYEMI V. OWOEYE (2017) 12 NWLR (prt 1580) 364 and WAGBATSOMA V. F.R.N. (2018) 8 NWLR (prt 7621) 199 at 218.
​It is for these and the more elaborate reasons advanced in the lead judgment that I allow the appeal and set aside the judgment of the trial Court. I also abide by the consequential orders remitting the case to the Chief Judge of Akwa Ibom State for re-assignment to a another judge other than Hon. Justice Magaret- Mary E. Udoma.

Appearances:

DASIL AKPAN with him IDONGESIT KENDYFor Appellant(s)

C. I. ODO with him, B. N. NWAKA and P. C. EDEHFor Respondent(s)