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UDO v. AKPAN & ORS (2020)

UDO v. AKPAN & ORS

(2020)LCN/15659(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, April 27, 2020

CA/C/394/2016

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

UchechukwuOnyemenam Justice of the Court of Appeal

YargataByenchitNimpar Justice of the Court of Appeal

Between

FRANCIS OKON UDO APPELANT(S)

And

1. BASSEY EDET UDO AKPAN 2. UDUAK EDET UDO AKPAN 3. UWEM EDET UDO AKPAN 4. VICTOR EDET UDO AKPAN RESPONDENT(S)

 

RATIO:

THE BURDEN OF  PROOF  ON THE PLAINTIFF TO PLEAD AND PROVE HIS CLAIMS TO THE SATISFACTION OF THE COURT

See: AREWA TEXTILE V. FINETEX LTD. (2003) 7 NWLR (PT. 819) 332. In DUMEZ NIGERIA LIMITED V. PETER NWAKHOBA & ORS. (2009) ALL FWLR (PT. 461) 842; the state of the law was tersely laid down, per Mohammed, J.S.C.
“The law on the requirements of the plaintiff to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the Defendant is indeed well settled. The burden of proofon the plaintiff in establishing Declaratory Reliefs to the satisfaction of the Court is quite heavy in the sense that such Declaratory Reliefs are not granted even on admission by the Defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence.” UCHECHUKWU ONYEMENAM, J.C.A. 

EFFECT OF FAILURE TO ADOPT WRITTEN DEPOSITION ON OATH

It is my stance therefore that the failure of the Respondents to adopt any written deposition on oath via a witness to prove their case amounts to failure to prove their case by evidence. Under such circumstance, where the Respondents did not adduce evidence, I hold that the Respondents failed in law to establish their case to entitle them to a judgment in declaration of title to land. UCHECHUKWU ONYEMENAM, J.C.A. 

FAILURE TO SERVE A PROCESS IS A FUNDAMENTAL VICE 
The Respondents relied on the case of GE INTERNATIONAL OPERATIONS LTD. V. Q OIL AND GAS SERVICES LTD. (2016) ALL FWLR (PT. 838) 842; to contend that the trial Court was right in relying on the Respondents’ statement of claim without evidence based on Order 20 Rules (1) & (9) of the Akwa Ibom High Court (CIt is the law that where service of process is required, failure to serve is a fundamental vice and the person affected by the order but not served with the process is entitled ex-debito justitiae to have the order set aside as a nullity. Such an order of nullity becomes a necessity because due service of process is a condition sine qua non to hearing of any suit (application) if golden and fundamental principle of audi alteram partem is to have any value see: SKENCONSULT (NIG.) LTD. V. GODWIN UKEY (1981) 1 SC. 6; SCOTT-EMUAKPOR V. UKAVBE (1975) NSCC 435, (1975) 12 SC. 41.
In this caseivil Procedure) Rules, 2009. UCHECHUKWU ONYEMENAM, J.C.A. 

THE POSITION OF THE LAW ON THE  PRINCIPLE AND BREACH OF  FAIR HEARING

I will like to note at this point that the categories or aspects of breach of fair hearing are broad and stretches to regulations by the rules of Court, practice direction and other Court practices recognized by the law. The law is that, in determining whether the principle of fair hearing has been breached, the decisive point to consider is not whether any injustice was done to any of the parties due to want of hearing but whether the party or parties was afforded opportunity to be heard. This Court, Per Sanusi, JCA (as he then was but now JSC) in ODIGWE V. JUDICIAL SERVICE COMMISSION, DELTA STATE (2011) ALL FWLR (PT. 583) 1918 aptly stated the position of the law when he said:
On the issue of denial of fair hearing raised by the learned appellant’s counsel, with due deference to the learned appellant’s counsel, the time honoured principle of fair hearing as enshrined in Section 36(1) of the 1999 Constitution enjoins Courts or tribunals to give equal opportunity toparties to present their case in Court. See: NDABA (NIG.) LTD. V. UBN PLC UCHECHUKWU ONYEMENAM, J.C.A. 

FAILURE TO SERVE A PARTY WITH A HEARING NOTICE IS A FUNDAMENTAL IRREGULARITY

See the decision of the Supreme Court in ACHUZIA V. OGBOMAH (2016) LPELR-40050 (SC) 14 per Galadima, JSC:
“It is trite that failure to serve a party in a case with a hearing notice indicating clearly when and where the Court is to sit is a fundamental irregularity which easily vitiate the proceedings, and make it a nullity, however well conducted and decided. The effect is extrinsic to the adjudication. See the English decision in CRAIG V. KANSEEN (1943) K. B 25 AT PP 262-263 cited and relied upon by this Court in SKEN CONSULT (NIG) LTD.& ANOR V. GODWIN SEKONDY UKEY (1981) 1 SC. PT AT P. 15.” UCHECHUKWU ONYEMENAM, J.C.A. 

THE PRINCIPLE OF AUDI ALTERAM PARTEM AND THE LEG OF NATURAL JUSTICE

In his contribution to the Judgment of the Court, Peter-Odili, JSC at page 22-23 of the same judgment also opined thus:
The requirement of fair hearing implies that each party to a dispute before a Court or Tribunal must be accorded adequate opportunity to state his own side of the case under the principle of “audi alteram partem”, an immutable principle and the other leg of natural justice. This position was well expatiated in the case of ARIAYEFAH NWAOSU V. IBEJIMBA NWAOSU (2000) 4 NWLR (PT. 653) 351 AT 359 where it was stated as in this case in hand that the Court cannot without issuing and serving hearing notice on the party affected, proceed to abridge the time and hear evidence in the absence of the party to be affected. See also OBIMONURE V. ERINOSHO & ANOR (1966) ALL NLR 245 AT 247. UCHECHUKWU ONYEMENAM, J.C.A. 

THE DENIAL OF FAIR HEARING AND BREACH OF THE RULE OF NATURAL JUSTICE

In SALU V. EGEIBON (1994) 6 NWLR (PT. 348) 23 AT 44, Wali, JSC stated: “It has also to be remembered that denial of fair hearing was a breach of one of the rules of natural justice, that is, the requirement that a party must be given a fair hearing. The consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void. See: ADIGUN V. ATTORNEY-GENERAL OF OYO STATE (1987) 1 NWLR (PT. 53) 678. If a principle of natural justice is violated, it does not matter whether if the proper thing has been done, the decision would have been the same; the proceeding will be null and void. In other words, if the principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. 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, Uyo Judicial Division delivered on 21st July, 2016 by Winifred I. A. Effiong, J. The Appellant in this appeal was the Defendant in the trial Court, while the Respondents were the Plaintiffs.

By a Writ of Summons filed on 25th February, 2016, the Respondents claimed against the Appellants the following at the trial Court;
(i) A DECLARATION that the purported sale transaction of the land in dispute by the Defendant without the consent and or authority of the Plaintiffs is wrongful, illegal, null and void and of no effect.
(ii) A DECLARATION that the Plaintiffs are entitled to the statutory right of occupancy of the two (2) pieces or parcels of land known as and called “Amaka” lying and situate along Anua/Mbak Road in Ifa Ikot Akpanmbia Village in Uyo Local Government Area of Akwa Ibom State hereinafter referred to as the land in dispute within the jurisdiction of this Honourable Court.
(iii) A sum of N10,000,000.00 (Ten Million Naira) being general damages for trespass in that on or aboutthe month of April 2012, the defendant without let or permission, unlawfully broke into the Plaintiffs’ land known as and called “Amaka” lying and situate along Anua/Mbak Road, in Ifa Ikot Akpanmbia Village in Uyo Local Government Area, within the jurisdiction of this Honourable Court, sold one parcel of the said land, outright to a third party and the second parcel pledged to a woman for the purposes of farming, both parcels of land which were and still in the exclusive possession of the Plaintiffs.
(iv) Perpetual injunction restraining the Defendant, whether by himself, agents, assigns, privies, servants or others whosoever called from any further acts of trespass on the Plaintiffs’ said parcel of land.

​It is the Appellant’s case that he was not put on notice of the adjourned dates of the pending matter at the trial Court and as such was not aware of the progress of the matter until he was served a motion for final judgment. That the trial Court went ahead to give judgment in favour of the Respondents before the expiration of the time prescribed by the Rules of Court for him the Appellant to react to the Respondent’s motion for default judgment.

The Respondent’s case is that the Appellant failed to file his defence or make himself available throughout the pendency of the matter even after several hearing notices were issued and served on him. The trial Court subsequently delivered its judgment on 21st July, 2016 upon the application of the Respondents granting all the reliefs sought on the writ of summons and the statement of claim. Dissatisfied with the judgment, the Appellant filed his Notice of Appeal on 28th July, 2016.

The appeal was heard on 29th January, 2020. Parties adopted their briefs of argument. The Appellant’s brief was filed on 23rd January, 2017 and settled by EtimOffiong, Esq., while the Respondents’ brief was filed 21st June, 2017 and prepared by Lady Helen Egube (JP).

The Appellant formulated six issues for the determination of this appeal, to wit:
(i) Whether it was proper for the trial Court to grant the declaratory reliefs sought by the Respondents without taking oral evidence?
(ii) Whether the trial judge breached the Appellant’s right to fair hearing and caused a miscarriage of justice when he heard the motion forjudgment on 14th July, 2016, a date fixed for mention, considering the fact that the motion was served on the Appellant on 12th July, 2016?
(iii) Whether the Respondents who placed reliance on traditional history as the source of their title pleaded and proved same as required by law to be entitled to the grant of a statutory right of occupancy by the trial Court?
(iv) Whether the Respondents whom the trial Court declared title in favour and ordered an injunction identified the land upon which the declaration of title and an order of injunction were made in their favour with certainty as required by law?
(v) Whether the trial Court rightly granted the Respondents statutory right of occupancy when no filing fee was paid for the relief as required by the Rules of Court?
(vi) Whether the award of N10,000,000.00 (Ten Million Naira) general damages was excessive?

The Respondents adopted the issues as formulated by the Appellants. I shall adopt the issues as distilled by the Appellant for the determination of this appeal.

SUBMISSIONS ON ISSUE 1
Whether it was proper for the trial Court to grant the declaratory reliefs sought by theRespondents without taking oral evidence?

Submitting for the Appellant, Mr. Offiong stated that it was not proper for the trial Court to grant the two (2) declaratory reliefs sought by the Respondents in their Writ of Summons and statement of claim without taking oral evidence from the Respondents or their witnesses. That it is for a claimant whose relief is declaratory in nature to establish his claim on the strength of his case without relying on the weakness of the opponent case.

That the Court does not grant declaration of right either in default of defence or on admission without taking oral evidence and being satisfied that the evidence led is credible. He referred to: AKANDE V. ADISA (2012) ALL FWLR (PT. 635) PAGE 250, particularly PAGES 273-274, PARAS H-B; I.N.E.C V. ATUMA (2013) ALL FWLR (PT. 697) PAGE 619, particularly PAGES 636- 367, PARAS G-C; AIYEOLA V. PEDRO (2014) ALL FWLR (PART 744) PAGE 17, particularly 39 PARAS A-C.

He argued that Order 20 Rule 6 of the Akwa Ibom State High Court (Civil Procedure) Rules, 2009 relied on by the trial Court in its judgment does not make provision for default judgment in respect of a land matteror a declaration of title to land or any other declaratory reliefs. That by failing to adopt their witness depositions, the Respondents failed to prove their case by evidence. That it was improper for the Court to grant the reliefs contained in the writ of summons and statement of claim same having been abandoned by the Respondents witnesses in their depositions. In conclusion, he urged the Court to resolve the issue in the Appellant favour.

In his response, learned counsel for the Respondents reproduced the provisions of Order 20 Rule 6 of the Akwa Ibom State High Court (Civil Procedure) Rules, 2009 in submitting that land matters are not excluded in the said order. That the Court is empowered with the discretion to take evidence or not and to enter judgment as per the claims. Relying on: GE INTERNATIONAL OPERATIONS (NIG) LTD. V. Q OIL AND GAS SERVICES LIMITED (2016) ALL FWLR PT. 838 PAGE 842 particularly PAGE 864 – 865 HELD H – B1, the learned counsel contended that the issue of adoption of witness Statement is inapplicable because of the requirement for witness statement on oath and that by the provisions of Order 20 Rule 9 theCourt can waive the adoption of witness statement on oath. She urged the Court to discountenance the authorities relied on by the Appellant and dismiss the appeal.

RESOLUTION OF ISSUE 1
A declaratory judgment is discretionary. It is the form of judgment which should be granted only when the trial Court is of the opinion that the party seeking it, is, when all the facts are taken into account, fully entitled to the exercise of the discretion in his favour. See: ATUNRASE & ANOR V. SUNMOLA & ANOR. (1985) LPELR-634 (SC); EGBUNIKE & ANOR. V. MUONWEOKWU (1962) LPELR- 25051 (SC). A Claimant can only succeed on the strength of his case and never on the weakness of the Respondent’s case. See: AREWA TEXTILE V. FINETEX LTD. (2003) 7 NWLR (PT. 819) 332. In DUMEZ NIGERIA LIMITED V. PETER NWAKHOBA & ORS. (2009) ALL FWLR (PT. 461) 842; the state of the law was tersely laid down, per Mohammed, J.S.C.
“The law on the requirements of the plaintiff to plead and prove his claims for declaratory reliefs on the evidence called by him without relying on the evidence called by the Defendant is indeed well settled. The burden of proofon the plaintiff in establishing Declaratory Reliefs to the satisfaction of the Court is quite heavy in the sense that such Declaratory Reliefs are not granted even on admission by the Defendant where the plaintiff fails to establish his entitlement to the declaration by his own evidence.”
This in essence means: declarations of right in a case cannot be made on admission or in default of pleading of the Defendant. See: I.N.E.C V. ATUMA (2013) ALL FWLR (PT. 697) PAGE 619; ABIDAKUN & ORS V. OYEBODE & ORS. (2013) LPELR – 20483 (CA). See also: WALLERSTEINER V. MOIR (1974) 3 ALL ER 217 AT 251, where Buckley, I. J., said it has been my experience, and I believe it to be a practice of long standing, that the Court does not make Declarations of right either on admission or in default of pleading… But only if the Court was satisfied in evidence”. See also: METZGER V. DEPARTMENT OF HEALTH AND SOCIAL SECURITY (1977) 3 ALL ER 444 AT 451; BELLO V. EWEKA (1981)1 S.C. 101; MOTUNWASE V. SORUNGBE (1988) 12 S.C. (PT. 1) 130; (1985) 5 NWLR (PT.92) 102.
In the instant case, the Respondents who were the Plaintiffs brought their motion under Order 20 Rule (9) of the Akwa Ibom State High Court (Civil Procedure) Rules, 2009, praying for:
“An Order entering final judgment for the Plaintiffs against the Defendant as per their claims as set out in paragraph 13 of the Statement of Claims.”
The learned trial Judge relied on the Respondents’ Writ of Summons and Statement of Claim to enter judgment in default of the Appellant’s pleading (defence) although no statement on oath was adopted by the Respondents. It is the contention of the Appellant that the Respondents’€ claims seeking declaratory reliefs could not be granted without the Respondents adducing cogent and concrete evidence to establish their claims even when the Appellant had no defence. He submitted that the trial Court erred in relying on the Respondents’€ statement of claim in entering judgment in default of defence in favour of the Respondents.
For the fact that declaratory reliefs cannot be granted upon the admission, default in pleading or defence of a defendant, the question herein is whether the learned trial Judge was right when he entered judgment for the Respondents upon their writ of summonsand statement of claim when no witness adopted a written statement on oath as evidence in prove of the Respondents’ case. The Respondent contended that since an action for declaration of title to land is not one of the actions referred to in preceding rules of Order 20 Rule 9 of the Akwa Ibom State (Civil Procedure) Rules, the learned trial Judge was right when he relied on the Respondents’ Statement of Claim to enter judgment for the Respondents in default of the Appellants defence. I have gone through Order 20 Rules 1 to 9, it is correct that the rules did not mention actions for declaration of title which lured the trial Court to rely on Rule 9 to enter judgment for the Respondents on their statement of Claim. The Apex Court has maintained that the requirement for oral evidence to entitle a Claimant to a declaratory judgment arises from the fact that the Court has discretion to grant or refuse a declaratory relief and that its success depends entirely on the strength of the plaintiff’s own case and not on defence. Where there is no evidence adduced before a trial Court, there will be no facts for the said Court to take into account to decidewhether the Claimant is entitled to the exercise of its discretion for the grant of declaration of right.
Order 20 Rule 9 of Akwa Ibom State High Court (Civil Procedure) Rules, 2009 is clearly the provision for default judgment. Order 20 Rule 6 of the Akwa Ibom State High Court (Civil Procedure) Rules, 2009 only makes provision for the recovery of possession and not a declaration of title. There will be need at this point to highlight the fine distinction between action for recovery of land as used in Order 20 (6) of the Akwa Ibom state (Civil Procedure) Rules and action for declaration of title to land. A claim for recovery of possession postulates that the plaintiff is not in possession at the time of the action and that he was once in possession but is at the time of the action seeking to be restored to possession of the land. See: CARRENA & ORS. AKINLASE (2008) LPELR- 833 (SC); AROMIRE V. AWOYEMI (1972) LPELR-560 (SC); TIJANI V. AKINWUNMI (1990) 1 NWLR (PART 125) 237 AT 247; ERNEST NZEKWU & ORS V. MADAM CHRISTIANA NZEKWU ORS. (1989) 2 NWLR (PART 104) 373 AT 391. A Claimant in an action for recovery of possession of land is always one who is outof possession, but now claims to have the right to immediate possession of the land. In such a situation, such a person seeking to dispossess the person in possession must prove that he is entitled to such possession. Where a person is in possession, a Claimant who seeks to turn him out can only recover the land upon the strength of his own title. The burden is therefore cast on him to show that he has a superior legal right and therefore entitled to possession. See:ISAAC & ANOR (1997) 5 S.C.N.J. P. 240. AROMIRE V. AWOYEMI (1972) 2 S.C. P.1; ERNEST NZEKWU & 2 ORS V. MADAM CHRISTIANA NZEKWU (1989) 3 S.C. (PT.II) P. 76; ADEWUYI V. YEWANDE (2015) LPELR – 41675 (CA).
​On its own, action for declaration of title postulates prima facie ownership of the land. It can only be maintained by a Claimant who though may not be in physical possession but claims ownership of the land. Whereas the ownership of land involves a right to the possession of it, a right to the possession of land does not signify ownership of land. Accordingly, a Claimant without title to land may sue for recovery of land because of his legal right to possession but it is only aClaimant who asserts ownership of land that can bring an action for a declaration of title to land. An action for recovery of land and action for declaration of title to land are different as they obviously seek different reliefs.
I am of the view therefore that the provisions of Order 20 Rule 9 of the Akwa Ibom State High Court (Civil Procedure) Rules, 2009 which makes provision for a default judgment based on the statement of claim of a Claimant without evidence of any form let alone evidence that is cogent and concrete to entitle the Claimant to the grant of his claim, cannot and does not relate or apply to an action for declaration of title to land which by a well settled principle of law cannot be granted in default of defence and not even on the admission of the defendant who has defended the action but only on the strength of the evidence of the Claimant which the Court after consideration of material facts placed before it by the Claimant adjudges entitles the Claimant to judgment. See: MATANMI & ORS. V. DADA & ANOR. ​(2013) LPELR – 19929 (SC). Upon a calm consideration of the wordings of Order 20 Rule 9 of Akwa Ibom State High Court (Civil Procedure) Rules, 2009, ​it is conclusive that by the referred rule, evidence is not required for any relief sought under that order, in which case therefore I hold that an action seeking for declaration for title to land as a relief which cannot be granted without evidence is excluded under the provisions of that rule. The Expressiouniusest exclusion alterius Rule is applicable. This means that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have been excluded by implication. See: OPIA V. INEC & ANOR. (2014) LPELR – 22185 (SC); PDP V. INEC (1999) 11 NWLR (PT 625) 200; BUHARI V. DIKKO YUSUF (2003) 1 NWLR (PT.841) 446; UDOH V. ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD (1993) 7 NWLR (PT.304) 139; HALSBURY’S LAWS OF ENGLAND 4TH EDITION PARAGRAPH 876.
Therefore, the judgments that may be obtained under Order 20 Rule 9 of Akwa Ibom State High Court (Civil Procedure) Rules, 2009 are limited to those which could be obtained upon statement of claim.
​Let me also note that, the evidence required for a declaratory judgment envisages inter alia, an oral evidence given on oath from thewitness box which oral evidence can only be obtained by the Court from a witness, who after taking oath before the trial Court proceeds to adopt his witness written statement on oath deposed to before the commissioner for oath; and until the witness’ written statement on oath is adopted as his evidence-in-chief from the witness box, that statement on oath abides in the realm of pleadings and not evidence. See: PROGRESSIVE ACTION CONGRESS V. I.N.E.C (2009) ALL FWLR (PT. 478) 260; DUROSARO V. AYORINDE (2005) 8 NWLR (PT. 927) PAGE 407. Accordingly, whereas in the instance case, the statement on oath of the Respondents’ witnesses were not adopted by their witnesses as their evidence-in-chief, the same could not constitute the Respondents’ evidence for the purposes of obtaining a judgment for declaration of title to land. This is for the simple fact that a statement on oath cannot speak unless it is adopted by the witness who deposed to it and where it is not adopted as in this case, it remains an oath made before a commissioner for oath and the Court cannot rely on it as evidence. For the judgment under appeal, since none of the Respondents’witnesses’ written statement on oath was adopted as evidence by those who deposed to them, neither was any tendered in evidence, or annexed to the affidavit evidence; it means it was only the affidavit evidence in support of the motion for judgment that the trial Court relied upon in entering a declaratory judgment for title to land. This nature of evidence particularly the affidavit in support to the motion under consideration, cannot ground the grant of an action to declaration of title to land.
The referred rules of Akwa Ibom State provides:
Rule 1
“If the Claim is only for a debt or liquidated demand, and the defendant does not within the time allowed for the purpose, file a defence, the Claimant may, at the expiration of such time, apply for final judgment for the amount claimed with cost.
Rule 9
“In all actions other than those in the preceding Rules of this Order, if the defendant makes a default in filing a defence, the Claimant may apply to the Judge for judgment, and such judgment shall be given upon the Statement of Claim as the Judge shall consider the Claimant to be entitled to”.
Above in this judgment I had taken time to consider whether Order 20 Rule (9) (Supra) applies to this case and I came to the conclusion that the rule is not applicable to judgment in a declaration of title to land. Glaringly too, Order 20 Rule (1) which is for liquidated demand does not relate to the instant case. In GE INTERNATIONAL OPERATIONS LTD. V. Q OIL AND GAS SERVICES LTD (2016) ALL FWLR (PT. 838) 842, the Plaintiff’s motion filedpursuant to Order 20 Rule 9 of the River State High Court (Civil Procedure) Rules 2006, prayed for:
“An Order entering judgment in favour of this Claimant/Applicant in terms with its Writ of Summons and Statement of Claim, the defendant/respondent having failed/refused to file its statement of defence and other processes within the time limited by the Rules.”
The action in GE INTERNATIONAL OPERATIONS LTD. V. Q OIL AND GAS SERVICES LTD (supra) was for liquidated demand as opposed to the instant case which is for declaration of title to land. The Apex Court considered Order 20 Rules (1) and (9) of the Rivers State High Court (Civil Procedure) Rules 2006 akin to that of the Akwa Ibom State High Court under consideration, but the facts of the case in GE INTERNATIONAL OPERATIONS LTD. V. Q OIL AND GAS SERVICES LTD (supra) differs from the instant case. Referring to Order 20 Rule (9) of the River State High Court Rules (supra), the Apex Court, Per. N. S. Ngwuta, J.S.C. stated thus:
“Under this rule, judgment could be entered for the plaintiff in default based on the statement of claim. The requirement that a plaintiff must bycredible evidence satisfy the Court that he is entitled to the declaratory relief he claims is satisfied by the witness statement on oath pursuant to the 2006 Rules of the Rivers State High Court”
The Supreme Court noted that judgment could be entered for the plaintiff in default of defence based on the statement of claim under Order 20 Rule (1) for liquidated demand. The Apex Court did not stop there but acknowledged and affirmed the old long principle of law that requires that before any declaratory relief is granted by a trial Court, the plaintiff must by credible evidence satisfy the Court that he is entitled to the relief. That is to say evidence is mandatory for the grant of a declaratory relief and the Apex Court went further to acknowledge that a witness statement on oath pursuant to the Rivers State High Court Rules satisfies the requirement of evidence which it noted could be documentary or oral. In the Akwa Ibom State High Court Rules, Order 32 provides for evidence generally. By Order 32 Rules 1 & 2 of the Akwa Ibom State High Court Rules, evidence of a witness consists of his written deposition and oral examination in open Court.Without a witness confirming his written deposition in open Court, the written deposition will not be legally adjudged evidence. NWALUTU V. NBA & ANOR (2019) LPELR – 46916 (SC).
So although the trial Court could rely on statement of claim to enter judgment in default, but there must be credible evidence before it before it could enter judgment on action for declaration of title to land. The Apex Court held thus:
“It therefore seems to me that the Court may in the overall interest of justice properly insist on oral evidence in the case of applications for judgments in default of defence in a declaratory action.”
See: MAJA V. SAMOURIS (supra). The justice of the case in the instant case I hold is such that evidence was material for the grant of the Respondents’ reliefs for declaration of title to land.
For all I have said above particularly for the fact that an action for declaration of title to land does not come under the contemplation of Order 20 Rule (9) of the Akwa Ibom State High Court Rules, the case of GE INTERNATIONAL OPERATIONS LTD. V. Q OIL AND GAS SERVICES LTD. (supra), is therefore not applicable tothe instant case leading to this appeal. I therefore hold that the learned trial Judge was in error and failed to exercise his discretion judicially and judiciously, when he relied merely on a statement of claim without credible evidence to enter judgment in default of defence for the Respondents in an action for declaration of title to land.

I resolve issue 1 in favour of the Appellant.

SUBMISSIONS ON ISSUE 2
Whether the trial judge breached the Appellant’s right to fair hearing and caused a miscarriage of justice when he heard the motion for judgment on 14th July, 2016, a date fixed for mention, considering the fact that the motion was served on the Appellant on 12th July, 2016?

Learned counsel for the Appellant submitted that the trial judge breached the Appellant’s right to fair hearing which resulted in a miscarriage of justice. He argued that the entire proceedings were invalidated and rendered null and void by reason of the trial Court’s failure to give the Appellant the 7 days reasonable time to react to the motion for judgment as prescribed by Order 39 Rules 1(3) and (5) of Akwa Ibom State High Court (Civil Procedure) Rules, 2009 which amounted to a breach of the Appellant’s right to fair hearing as guaranteed by Section 36(1) of the 1999 Constitution of Nigeria (as amended). He referred to pages 39 and 47 of the Record; E.W.L.G COUNCIL. V. CHRISTOPHER (2014) ALL FWLR (PT. 745) PAGE 1, RATIO 2 AT PAGE 12 PARAS E-G; UBA PLC. V. EFFIONG (2012) ALL FWLR (PT. 634) PAGE 172, particularly PAGE 193, PARA E.

Relying on: UNITY BANK V. ONYE (2012) ALL FWLR (PT. 627) PAGE 711, Ratio 2, the learned counsel contended that the Appellant’s right to fair hearing was further breached when the trial Court proceeded to hear the motion for judgment on 14th July, 2016 whereas the matter had been slated for mention on that date, moreso since the Appellant was not served hearing notices for most of the dates the case was adjourned to.
​
Reacting, the learned counsel for the Respondents submitted that in determining whether the principle of fair hearing has been breached, the crucial point to consider is not whether any injustice was done to any of the parties due to want of hearing but whether the party or parties was afforded opportunity to be heard. She argued thatthe Appellant exhausted the ample opportunity allowed by law to be heard and the Court cannot wait for the Defendants in perpetuity to defend their case. She relied on: ODIGWE V. J.S.C (2011) ALL FWLR (PT. 583) PAGE 1918 PP. 1939 PARA B-G; OKEKE V. PETMAG NIG. LIMITED (2005) 4 NWLR (PT. 915) 245 AT 253 RATIO 9.

She went ahead to rehash the proceedings that led to the judgment at the trial Court in arguing that the Appellant having failed to utilize the opportunity afforded him by law and the Court to defend himself, he cannot complain of denial of fair hearing. She cited some authorities in that regard and urged the Court to dismiss the appeal.

RESOLUTION OF ISSUE 2
The main complaint of the Appellant in issue 2 is the breach of his right to fair hearing in respect of the rules and practice of Court. The Appellant on this issue articulated the violation of his right to fair hearing under three headings as follows:
1. That the trial Court did not give him a reasonable time to be heard on the motion for judgment, that is he was not given the opportunity to be heard on the motion at all.
2. That the case was fixed for mention, whereas thetrial judge proceeded to take the motion for judgment on the date the matter was fixed for mention.
3. That no hearing notice was issued and served on the Appellant throughout the period the matter went on in the trial Court.
The main grouse of the Appellant herein is that the Motion for Judgment which led to the decision appealed against which was filed on 8th July, 2016 and served on the Appellant on 12th July, 2016; was moved 14th July, 2016. The Appellant’s Counsel therefore contends that failure to allow him the reasonable time prescribed under Order 39 Rules 1 (3) and (5) of the Akwa Ibom State High Court Rules (supra), to oppose the Motion for Judgment filed on 8th July, 2016 denied him the opportunity to be heard which amounts to a breach of his right to fair hearing leading to a miscarriage of justice in thIOat the trial Court would not have entered judgment against the Appellant if he had been accorded the opportunity within the reasonable time prescribed by the rules of Court to defend himself.
The right to fair hearing is a constitutionally guaranteed right to all citizens. By virtue of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended),in the determination of any civil rights and obligations, a person shall be entitled to a fair hearing within a reasonable time ” by a Court. I will like to note at this point that the categories or aspects of breach of fair hearing are broad and stretches to regulations by the rules of Court, practice direction and other Court practices recognized by the law. The law is that, in determining whether the principle of fair hearing has been breached, the decisive point to consider is not whether any injustice was done to any of the parties due to want of hearing but whether the party or parties was afforded opportunity to be heard. This Court, Per Sanusi, JCA (as he then was but now JSC) in ODIGWE V. JUDICIAL SERVICE COMMISSION, DELTA STATE (2011) ALL FWLR (PT. 583) 1918 aptly stated the position of the law when he said:
On the issue of denial of fair hearing raised by the learned appellant’s counsel, with due deference to the learned appellant’s counsel, the time honoured principle of fair hearing as enshrined in Section 36(1) of the 1999 Constitution enjoins Courts or tribunals to give equal opportunity toparties to present their case in Court. See: NDABA (NIG.) LTD. V. UBN PLC. (2009) 13 NWLR (PT.1158) 5256. In order to determine whether the principle of fair hearing has been breached the crucial point to consider is not whether any injustice was done to any of the parties due to want of hearing but whether the party or parties was afforded opportunity to be heard. Also in determining such opportunity to be heard, the following conditions must be inherent in the conduct of the case i.e.
(a) both parties must be heard on all material issues before the Courts determines or pronounce on them;
(b) the Court must give equal treatment opportunity and consideration to both parties.
(c) the proceedings/trial shall be held in public and all concerned shall have access to and be informed of the place of public hearing;
(d) that having regards to all the circumstances in every material decision in the case, justice must not only be done but be manifestly seen to have been done for instance, parties should be given chance to cross examining witnesses called by the adverse party or to call witnesses of their choice and make submissions to Court beforethe case is determined.
See: AWUSE V. ODILI (2005) 16 NWLR (PT.952) 46; DURWODE V. STATE (2000) 15 NWLR (PT. 691) 467; JCC INTER LTD. V. NGI LTD. (2002) 4 WRN 91. See also: KOTOYE V. CBN (1989) 1 NWLR (PT. 98) 419; ADIGUN V. A.G., OYO STATE (1987) 1 NWLR (PT.53) 678; DEDUWA V. OKORODUDU (1976) 9 – 10 SC 329; UDO-AKAGHA V. PAICO LTD. (1993) 4 NWLR (PT.288) 434; SALEH V. MONGUNO (2003) 1 NWLR (PT. 801).
Ordinarily, where a trial Court fails or neglects to observe any of the above mentioned pre-conditions of fair hearing, enumerated above, it can be said to be in serious breach of the concept or principles of fair hearing under Section 36 of the 1999 Constitution .”
​In the case at hand, the Motion for Judgment which led to the decision appealed against was filed on 8th July, 2016; see: page 39 of the record of appeal. The said motion was served on the Appellant at 1:15p.m on 12th July, 2016 as per the Court bailiff’s proof of service at page 47 of the records. Thereafter, the Motion for Judgment was moved on 14th July, 2016. The question that arises is whether, the trial Court denied the Appellant the opportunity to be heard in theMotion for Judgment having regards to Order 39 Rules 1(3) and5 of the Akwa Ibom State High Court (Civil Procedure) Rules, 2009. For ease of understanding, I reproduce the provisions of Order 39 Rules 1 (3) and 5 of the Akwa Ibom State High Court (Civil Procedure) Rules; which provides thus:
“Rule 1(3) “Where the other party intends to oppose the application, he shall within 7 days of the service on him of such application, file his written address and may accompany it with a counter-affidavit.
Rule 5 “Unless a judge grants special leave to the contrary, there must be at least two(2) clear days between the services of all processes in respect of a motion and the day named in the notice for hearing the motion”
To ensure fair hearing with regards to the hearing of the application for judgment filed by the Respondents on 8th of July, 2016; the trial Court was duty bound to abide the provisions of Order 39 Rules 1 (3) and 5 of the Akwa Ibom State High Court (Civil Procedure) Rules (supra). The wordings of the said rules in Order 39 (supra) being clear and unambiguous, I shall abide the literal interpretation of the rules. By Rule 1 (3) of Order 39 (supra), the Appellant had 7 days from the service of the Motion for Judgment filed on 8th July, 2016; to oppose the motion either by filing his written address or by filing his written address and a counter affidavit. From the records, the motion which was served on the Appellant on 12th July, 2016; was moved on 14th July, 2016. The only conclusion that can be drawn from the record of proceedings is that the motion/application for judgment was taken before the expiration of seven (7) days from the date the motion was served on the Appellant. This clearly indicates that the Appellant was not granted reasonable time as provided for by Order 39 Rule 1 (3) (supra) to defend the Motion for Judgment which amounts to a violation of the Appellant’s right to fair hearing. Then again is the provision of Order 39 Rule 5 (supra); by this rule except for where a Judge before whom an application is made to grants special leave to the contrary, there must be at least two (2) clear days between the services of all processes in respect of a motion and the day named in the notice for hearing the motion. (Underlining mine for emphasis). The pivot pointis two (2) clear days between the services of all processes in respect of the motion and the hearing of the motion. Reading Rule 5 together with Rule 1(3) of Order 39 (supra), “€œservices of all Processes in respect of a motion” referred to in Rule 5 connotes the services of all required and necessary processes of the parties involved in the motion. This implies the service of the Applicant’s initiating application (motion) supported by an affidavit with the accompanying written address as per Order 39 Rule 1 (1 & 2) to the Respondent on one hand, and the service of the Respondent’s written address; or a written address with an accompanying counter affidavit where necessary to the Applicant; and subsequently, the service of the Applicant’s written address reply on points of law where necessary. By the obvious implication, this means a motion can only be heard two (2) clear days after the time provided for the services of all the processes as provided for by Order 39 Rules 1 (3) and 5 (supra) has lapsed except for when the Respondent waives his 7 days right or the Court has ordered otherwise as in where the Court abridges the timefor the filing of relevant processes in a motion. This was not so in the instant case where the Motion for Judgment in default was moved less than two (2) clear days after the motion was served on the Appellant thereby taking away his right to oppose the motion since his time to oppose was still running. The legal implication of hearing the motion when the Appellant’s time to oppose was unexpired means the Appellant was not given the opportunity by the trial Court to defend the Motion for Judgment and so was not heard on the application. In a similar scenario, this Court Per MASSOUD ABDULRAHMAN OREDOLA, J.C.A (Pp. 20-23, para. B) (Rtd.) in UBA PLC. V. EFFIONG (2011) LPELR-8934(CA); held thus:
€œIt is to be expected that when a party, such as in the instant case, has been effectively fenced off or shunted from its rightful position of being able to present its case/defence, such a party is at liberty to proclaim that it has been treated unfairly and that its constitutionally guaranteed right to fair hearing has been breached.
Furthermore, the legal effect of the trial Court shutting out the Appellant from opposing the Motion forJudgment is that the Appellant was not heard on all issues placed before the trial Court which also amounts to breach of the Appellant’s right to fair hearing. I am not unaware of the argument of the Respondents at page 7 of their brief that the Writ of Summons provided ample opportunity for the Appellant to be heard. They also argued that the Writ contains a proviso that judgment will be entered in default of the Appellant’s defence. Indeed, much ado was made by the Respondents about the fact that the Appellant had not filed a defence to the claim and that the time allowed him had expired before the proceedings complained of took place. I take cognizance of the fact that the Motion for Judgment was moved and judgment delivered based on the fact that the Appellant did not file defence to the Respondents’€ claim. That is beside the point in issue in this appeal, as a defendant who failed to file pleadings is still entitled to a hearing. He could for example decide to rely on a point of law inherent in the plaintiff’s case, without the necessity of filing pleadings and adducing evidence. He may rest his case on the plaintiff’s case and simplywish to address the trial Court on issues raised in the plaintiff’s case. All these are permitted by law. In any event, the Appellant herein had a right under the rules of Court which the trial Court snatched away from him, this right is not in any way tied to his failure to file his statement of defence to the Writ of Summons. Order 39 Rules 1 (3) and 5 gave him the right to oppose the Respondents’ Motion for Judgment and time frame within which the trial Court could rightly hear the motion respectively, but the trial Court denied him his right under Order 39 (supra); thereby breaching his right to fair hearing. See: FALADU V. KWOI (2002) LPELR- 5867 (CA).
Then again is the Appellant’s grouse that, the Motion for Judgment was heard the day the main suit was adjourned for mention without notice of the hearing of the motion. There is no dispute that the trial Court on 30th June, 2016, adjourned the substantive suit to 14th July, 2016 for mention, and by that 30th July, the Motion for Judgment had not been filed. There is nothing on record to show that the Motion for Judgment was adjourned for hearing to the said 14th July, 2016. I willlike to state categorically that the fact that the registry of the Court fixed date on the face of the motion on notice does not constitute notice of hearing of the application on the said date nor the fact that the motion would be ripe for hearing on that date. This is so because as in this case the legal date for the hearing of the application was dependent on at least two(2) clear days after the services of all processes in respect of the motion. A motion can only be fixed for hearing pursuant to Order 39 (supra), upon the filing and services of reactions by all the parties or at the expiration of the time allowed by the rules of Court for parties to react to the motion except where the Court specifically orders otherwise. In the instant case, the only thing the Respondents did was to file the motion and the registry proceeded to fix a date on the face of the motion without due consideration of the time allowed the Appellant by the rules to react to the motion. This was not proper, and any hearing of the application based on the date on the face of the motion without the satisfaction of the provisions of Order 39 Rules 1 (3) and 5 (supra) and service ofhearing notice of the Motion for Judgment is a breach of the right to fair hearing of the Appellant.
It is the law that where service of process is required, failure to serve is a fundamental vice and the person affected by the order but not served with the process is entitled ex-debito justitiae to have the order set aside as a nullity. Such an order of nullity becomes a necessity because due service of process is a condition sine qua non to hearing of any suit (application) if golden and fundamental principle of audi alteram partem is to have any value see: SKENCONSULT (NIG.) LTD. V. GODWIN UKEY (1981) 1 SC. 6; SCOTT-EMUAKPOR V. UKAVBE (1975) NSCC 435, (1975) 12 SC. 41.
In this case on appeal, there is no indication from the records that the motion was adjourned by the Court for hearing, or that the seven (7) days allowed the Appellant by Order 39 Rule 1 (3) (supra) to oppose the motion had as at the time the motion was heard expired. The motion could have at best been adjourned to 14th July, 2016 for mention. As has been decided by the Supreme Court in KANO V. BAUCHI MEAT PRODUCTS CO. LTD. (1978) 9 -10 SC 51 AT 56 following OLUBUSOLA STORES LTD. V. STANDARD BANK (NIG) LTD. (1975) NSCC 137, (1975) 4 SC 51; NEW NIGERIAN NEWSPAPERS LTD. V. OTEH (1992) 4 NWLR (PT. 237) 626, it is wrong for a Judge to treat a date which is for the mention of a case as a hearing date and any judgment consequently obtained in disregard of this amounts to a nullity. See also: FALADU V. KWOI (2002) LPELR  5867 (CA). The trial Judge in this case having heard the Motion for Judgment on the date the main suit was adjourned for mention and before the time allowed the Appellant to oppose the application by Order 39 (supra) had lapsed, the decision entered by the trial Court was in defiance of the rule of justice and a violation of the Appellant’s right to fair hearing and therefore a nullity.
Finally on this issue is the Appellant’s contention that the failure of the Court to serve him with hearing notices of the dates the suit and the Motion for Judgment came up and was finally determined was a breach of his right to fair hearing. He submitted that the only adjourned dates that the trial Court ordered the issuance and service of hearing notices are 6th and 20th April, 2016. From the record ofproceedings at pages 48 to 51, it is correct that the trial Court issued hearing notices to be served on the Appellant on 6th and 20th of April, 2016. Thereafter on 13th June, 2016; 30th June, 2016 and 14th June, 2016; the trial Court did not order the issuance and service of hearing notices on the Appellant. On 30th June, 2016; the Court recorded that the Appellant had been served with the Court processes and he was out of time to file his defence thereupon the Respondents sought for a date to file a Motion for Judgment. The substantive suit was adjourned to 14th July, 2016 for mention and no order was made for the issuance and service of hearing notice on the Appellant. Then on 14th July, 2016; when the substantive suit came up for mention, the Court satisfied itself that the Motion for Judgment had been served on the Appellant without considering whether he was served with hearing notice against that date nor whether the Motion for Judgment was fixed for hearing to that day or ripe for hearing, the trial Court allowed the Respondents’ counsel to move the Motion for Judgment. Then again, the trial Court adjourned for ruling without an order for hearingnotice to issue and be served on the Appellant.
Let me state straightaway that it is trite, as has been held in legion of judicial authorities, that any proceeding in a case which holds without the parties or one of the parties having been duly served with a hearing notice of the date for hearing of the matter, does violence to the principles of fair hearing as enshrined in the 1999 Constitution, and such proceedings held or taken in the absence of a party who was not put on notice of the date of such proceedings, amounts to a nullity. See the decision of the Supreme Court in ACHUZIA V. OGBOMAH (2016) LPELR-40050 (SC) 14 per Galadima, JSC:
“It is trite that failure to serve a party in a case with a hearing notice indicating clearly when and where the Court is to sit is a fundamental irregularity which easily vitiate the proceedings, and make it a nullity, however well conducted and decided. The effect is extrinsic to the adjudication. See the English decision in CRAIG V. KANSEEN (1943) K. B 25 AT PP 262-263 cited and relied upon by this Court in SKEN CONSULT (NIG) LTD.& ANOR V. GODWIN SEKONDY UKEY (1981) 1 SC. PT AT P. 15.”
In the sameJudgment, Kekere-Ekun, JSC stated thus:
“No matter how tardy a party might be in the prosecution or defense of his case before the Court, he has a constitutional right guaranteed by Section 36 (1) of the Constitution to be notified of the dates when the cause or matter will be heard.”
In his contribution to the Judgment of the Court, Peter-Odili, JSC at page 22-23 of the same judgment also opined thus:
The requirement of fair hearing implies that each party to a dispute before a Court or Tribunal must be accorded adequate opportunity to state his own side of the case under the principle of “audi alteram partem”, an immutable principle and the other leg of natural justice. This position was well expatiated in the case of ARIAYEFAH NWAOSU V. IBEJIMBA NWAOSU (2000) 4 NWLR (PT. 653) 351 AT 359 where it was stated as in this case in hand that the Court cannot without issuing and serving hearing notice on the party affected, proceed to abridge the time and hear evidence in the absence of the party to be affected. See also OBIMONURE V. ERINOSHO & ANOR (1966) ALL NLR 245 AT 247.”
The import of service of process on the defendant is wellcaptured in SKEN CONSULT (NIG.) LTD. & ANOR V. SEKONDY UKEY (1981) 7 SC 6 wherein this Court held thus:
“The service of process on the Defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or any counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. This very well accords with the principles of natural justice.”
See also: APC V. NDUUL & ORS. (2017) LPELR- 42415 (SC).
The fact is that a party to a case is entitled to be notified of every date on which the suit is set down, whether for mention or for hearing in the absence of which, the proceedings become a nullity and must be set aside. Although from the record the Appellant could be reckoned as untardy in the defence of his case, however, his constitutional right under Section 36 (1) of the 1999 Constitution to be notified of the dates when his matter will be coming up in Court or heard cannot be taken away from him. See: FALADU V. KWOI (supra). The emphasis that must be made here is that, service of processes, including hearing notices from day today, is so important that any dereliction in this regard is bound to vitiate the entire proceedings, no matter how well conducted. See: ONWUKA V. OWOLEWA (2001) 28 WRN 89; [2001] 7 NWLR (PT. 713) 695; FOLORUNSHO V. SHALOUB [1994] 3 NWLR (PT. 333) 413, 430, MBADINUJU AND ORS V. EZUKA & ORS. (1994) 10 SCNJ 109; [1994] 8 NWLR (PT. 364) 535; SKEN CONSULT NIG. LTD. V. UKEY (1981) 1 SC 6; HABIB NIG.BANK LTD. V. OPOMULERO AND ORS. (2000) 15 NWLR (PT. 690) 315.
In the application in issue, as in all such cases, the named Appellant was not only entitled to be served with the Motion for Judgment but also the hearing notice for hearing that was scheduled for 14th July, 2016. This must be so for a hearing notice is the only legal means of getting a party to appear in Court. See: ONWUKA V. OWOLEWA (2001) 28 WRN 89; [2001] 7 NWLR (PT. 713) 695, 710. Thus, failure to issue and serve hearing notice is a denial of fair hearing. See also: APEH & ORS V. PDP & ORS (2016) LPELR 40726 (SC).
In the case under consideration, the fact that the Appellant did not attend Court on 20th April, 2016; and 18th May, 2016; for which date she was duly notified, didnot obviate the constitutional imperative that he still be served hearing notices on the subsequent dates so as to be given the opportunity of a hearing on the adjourned dates of, 13th June, 2016; 30th June, 2016; and 14th July, 2016. The essence of service of hearing notice on a party is to intimate him of the hearing date which is very fundamental to the administration of justice since it confers on the trial Court the jurisdiction to entertain the matter. See: FIRST BANK V. UDEOZO (2017) LPELR-43263; AKINNIRAN V. ADE (2017) LPELR -42175; OGUNDOYIN V. ADEYEMI (2001) LPELR- 2335 (SC); COMPAGNIE GENERALE DE GEOPHYSIQUE NIG.LTD. V. AMINU (2015) LPELR -24463.
The end result of all I have said above is that the failure to serve hearing notices on the Appellant against the hearing dates of 30th June, 2016 and 14th July, 2016 is a fundamental vice which occasioned a breach of the Appellant’s right to fair hearing. It went to the root of the case and rendered the proceedings a nullity. Therefore, given the circumstances, the decision arrived at by the trial Court cannot be allowed to stand. This Court must interfere in order to ensure that justice isdone. I therefore hold that the failure to serve the Appellant a hearing notice resulted in a denial of fair hearing which is fatal to the decision of the trial Court.  The decision must be declared to be no decision. The result is that the decision of the trial Court and Court belowconfirming that decision must be set aside. The case must be heard de novo.”
See also: SASSADA CONSTRUCTION CO. LTD V. ONJE (2019) LPELR 47609 (CA).
Consequent upon all I have said above particularly that, the Appellant herein was not served with hearing notices for 30th June, 2016 and 14th July 2016; the trial Court shut out the Appellant from the proceedings of those days. Also for not hearing the Appellant on all issues to wit: hearing the Appellant on the Motion for Judgment; justice could not be said to have manifestly be seen to be done, generally resulting to the breach of the Appellant’s right to fair hearing. I therefore resolve Issue No.2 in favour of the Appellant.
Having resolved Issue 2 in favour of the Appellant on the basis that the trial Court breached the Appellant’s Constitutional right to fair hearing, I hold that the proceedings of the learned trial Judge is a nullity and the same is hereby set aside. For the same reason that the Appellant was denied fair hearing and the decision of the trial Court a nullity, I cannot proceed with the resolution of the other issues raised in the appeal.Appeal therefore succeeds and I order that the case file be remitted to the Chief Judge of Akwa Ibom State to be re-assigned to another Judge within the jurisdiction for hearing and determination.

I make no order as to cost.

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

YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in advance the judgment just delivered by my learned brother, UCHECHUKWU ONYEMENAM, JCA. The judgment considered and resolved all the issues distilled for determination by the parties. I have nothing more to add. I also allow the appeal and abide by the order remitting the case file to the Chief Judge of Akwa Ibom State for reassignment to another judge for hearing.

Appearances:

ETIM OFFIONGFor Appellant(s)

HELEN E. EGUBEFor Respondent(s)