UNITED BANK FOR AFRICA PLC. v. EDET OKON EFFIONG (2011)

UNITED BANK FOR AFRICA PLC. v. EDET OKON EFFIONG

(2011)LCN/4484(CA)

In The Court of Appeal of Nigeria

On Friday, the 15th day of April, 2011

CA/C/107/2008

RATIO

SETTING ASIDE JUDGMENT: WHETHER A TRIAL COURT CAN SET ASIDE ITS JUDGMENT ENTERED AGAINST AN ADVERSE PARTY EITHER IN DEFAULT OF APPEARANCE OR PLEADING

The law is basic that a trial court may in the exercise of its discretionary power, set aside its judgment entered against an adverse party, either in default of appearance or pleading. see Ajuwo, v. Akanni (1993) 9 NWLR (pt. 316) 182; Amadi v. N. N. P. C. (2009) 9 NWLR (pt. 316) 182. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

INTERFERENCE WITH EXERCISE OF DISCRETION BY THE TRIAL COURT: CIRCUMSTANCES WHERE AN APPELLATE COURT WILL BE FREE TO INTERFERE WITH THE EXERCISE OF DISCRETION MADE BY A TRIAL COURT

Let me restate the established position that it is upon known or undisputed facts as found and in all instances fully disclosed facts, that a Judge seeking to do what is just, fair and equitable may exercise his discretion. Hence, no exercise of discretion can be regarded as having been judicially and judiciously exercised upon a factual circumstance which is devoid of full disclosure, riddled with misrepresentations or dotted with imprecise, concealed and suppressed facts. Thus, materials placed before the court must be patent, plain and potent. Where this has not been done, an appellate court will be free to interfere with the exercise of such discretion by the trial court. See Okere v. Nkem (1992) 4 NWLR (Pt. 234) 132/149. Oyeyemi v. Irewole Local Govt. (1993) 1 NWLR (Pt.270) 4621 477. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

SERVICE OF COURT PROCESS: WHETHER SERVICE OF COURT PROCESS MUST BE PERSONALLY EFFECTED ON AN ADVERSE PARTY OR HIS COUNSEL

It is the law as established, that in any proceedings that will bring a suit to an end with the delivery of judgment, it is incumbent that service of court process, such as a motion for judgment, ought to have been personally effected on the affected party or his counsel. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

SERVICE OF COURT PROCESS: EFFECT OF FAILURE TO SERVE COURT PROCESS ON A PARTY ON THE PROCEEDING

The law is trite, that due service of a court process and production of satisfactory proof of service are conditions precedent to the hearing of such suit. Thus, failure to serve the process on a party and with presentation of satisfactory proof of the same, are fundamental vices which vitiate subsequent proceedings in the matter, regardless of merit or proper conduct thereof and render them void, See the cases of odutola v, Kayode (1992) 2 NWLR (pt. 324) 1; Teno Eng. Ltd. v. Adisa (2005) 10 NWLR (pt.933) 346; Mark v. Eke (Pt. 865) 4″. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

SERVICE OF COURT PROCESS: WHETHER A TRIAL COURT MUST BE DULY SATISFIED BY HAVING BEFORE IT, PROOF THAT THE PROCESS OF THE COURT HAD BEEN SERVED ON AN ADVERSE PARTY

Now as in the instant case, where it has been averred that a court process such as a hearing notice or a motion for judgment has been served on an adverse party, it is required and indeed necessary for the trial court to be duly satisfied by having before it, evidence of that service as required by law. There must be satisfactory proof of such service. This is moreso, in such an instance where the adverse party who has been alleged to have been duly served, failed to appear in court in response to the process allegedly served on him. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

SERVICE OF COURT PROCESS: WHAT IS THE BEST PROOF OF SERVICE OF COURT PROCESS ON AN ADVERSE PARTY AND HOW A DISPUTE REGARDING WHETHER OR NOT SERVICE OF A COURT PROCESS HAS BEEN EFFECTED ON A PARTY WILL BE RESOLVED

Basically, the best proof of service of court process on an adverse party is the unconditional appearance, presence or representation of the person who has been served with the said court process. Hence, where there is a dispute regarding whether service of a court process has been affected on a party; an affidavit of service is regarded as prima facie evidence that such service had been carried out. That is the law. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

JUSTICES

KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria

JA’FARU MIKA’ILU Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

Between

UNITED BANK FOR AFRICA PLC. – Appellant(s)

AND

EDET OKON EFFIONG – Respondent(s)

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.(Delivering the Leading Judgment): This is a double barrel appeal. It has been brought against two decisions of I. N .B. Isua, J, of the High court of Akwa Ibom state, Uyo Judicial Division, delivered in Suit No. HU/229/2005 on 16th January, 2006 and 16th November, 2006 respectively.

In the lower court, the respondent herein was the plaintiff, while the appellant was the defendant. The respondent’s writ of summons with which the action was commenced before the lower court was filed on 15th Aug, 2005. Thereafter, the respondent filed his statement of claim on 10th November, 2005. In the said statement of claim which supercedes the initially filed writ of summons, the respondent in paragraph 19 thereof claimed thus:

“The Plaintiff claims against the Defendant

i) a declaration that his purported summary dismissal is invalid, wrongful, void and of no effect.

ii) the setting aside of the Defendant’s letter of purported summary dismissal of 11 February 2005.

iii) an injunction restraining the Defendant from interfering with the Plaintiffs service except as spelt out in the condition of senrice or laid down by law.”

On 29th November, 2005 the appellant herein filed a memorandum of appearance in the following terms:

“MEMORANDUM OF APPEARANCE

PLEASE enter an appearance for UNITED BANK FOR AFIRICA PLC, sued as the Defendant in this action.

DATED the 28th day of November, 2005.

( SIGNED)

NKOYO I. NYA

OROK IRONBAR & ASSOCIATES

DEFENDANT’S SOLICITORS

11, KING STREET

CALABAR.

FOR SERVICE ON:

The Plaintiff

C/O His Counsel

Elizabeth Chambers

(Legal Practitioners)

19, NEPA Line

Uyo.”

Thereafter, on 22nd December, 2005, the respondent filed a motion on notice for judgment against the appellant in default of defence on the ,grounds inter alia, that time had run out for the filing of appellant’s defence to his suit. The said motion on notice, which has a seven paragraph affidavit in support was fixed for hearing on 16th January, 2006. The said respondent’s motion on notice is reproduced below:

“MOTION OF NOTICE

TAKE NOTICE that this Honourable Court will be moved on Monday the 16th of January, 2006 in the hour of 9 0′ clock in the forenoon or so soon thereafter as the Plaintiff/Applicant and/or his Counsel on his behalf maybe heard praying for the following reliefs:

i) final judgment for the reliefs claimed in the writ of summons and statement of claim and cost in default of the Defendant’s defence

ii) an order of this Honourable Court striking out the Memorandum of Appearance filed out of time and without leave of court

iii) for such further order(s) as this Honourable Court may deem fit to make in the circumstances.

Dated this 22nd day of December 2005

(Signed)

Eyakndue Eninnam Esq.

(Plaintiff Applicant’s Counsel)

Elizabeth Chambers

(Legal Practitioners)

19 NEPA Line, Uyo

For Service On:

The Defendant

Aka Road Uyo”

On 16th January 2006, when the said application came up for hearing, while the respondent and his counsel were present, the appellant and its counsel were absent. The motion for judgment was accordingly moved and the trial court granted the same. It gave judgment in favour of the respondent in tandem with the reliefs claimed in his statement of claim as reproduced above, inclusive of N2,000.00 awarded as costs.

when the appellant became aware of the said judgment, the appellant on 14th February, 2006 applied vide its motion on notice that the said judgment delivered on 16th January 2006 be set aside. In the said motion, the appellant prayed in the main for the following reliefs/orders:

“i) Extension of time to apply to set aside the judgment of this court.

ii) Setting aside the judgment of this court of 16th day of January, 2006.

iii) Deeming the statement of Defence and counter – claim attached hereto as properly filed and served and sufficient for the hearing in this matter.”

The trial court heard arguments in respect of the motion fifed by the appellant and delivered its considered ruling thereon on 16th November, 2006, wherein, the application was held to have failed and it was accordingly refused.

Dissatisfied and aggrieved with the two rulings/decisions, the appellant filed two separate notices of appeal to this court. Thus, on 9th July, 2009, this Court deemed the two notices of appeal as having been duly and properly filed and with the grant of leave that both appeals could be argued together. From the two notices of appeal and grounds of appeal respectively contained therein, the appellant in its brief of argument prepared by Chief Orok I. Ironbar of counsel and filed on 12th August, 2009, three issues were identified therefrom for the determination of this appeal. The issues are as follows:

“Whether the learned trial judge acted judicially and judiciously when he heard the motion for judgment. (Covered by grounds (i) and (iii) of the notice at Pp 11 -12).

Whether the learned trial judge was justified to grant a declaratory relief in the absence of testamentary evidence from the plaintiff.

(Covered by grounds (ii) of the notice of pp 11 – 12 and ground (ii) of notice at Pp. 37 to 38, of the record).

Whether the learned trial judge was justified in refusing to set aside its judgment given in the absence of the Defendant. (This is covered by grounds (i) and (iii) of the notice at Pp. 37 to 38, of the record).”

At the hearing of the appeal on 13th January, 2011, this Court granted the appellant’s prayer for leave to hear and determine this appeal without the respondent’s brief. Thus, on 7th February, 2011, when we were duly satisfied that the respondent was properly served with hearing notice against the day’s sitting, we ordered that hearing in this appeal should proceed. Thereafter, N. E. Ene Esq., learned counsel for the appellant adopted and relied on the appellant’s brief of argument which was filed on 12th August, 2009. we were urged to set aside the trial court’s rulings/decisions of 16th January, 2006 and 16th November, 2006 and remit the matter to the High court for hearing on the merit.

In the said appellant’s brief, learned counsel argued both issues one and two together. Reference was made to paragraph 19 (i) of the statement of claim and it was pointed out, that “it is obvious that this is a declaratory relief.” It was submitted that such a relief cannot be granted by a trial court even on admission by the adverse Party, talk less of on a motion for judgment as it was in the instant case. Reference and copious quote were made to and from the supreme court decision in Ayanru (retd) v. Mandilas Ltd. (2007) 10 NWLR (pt. 1043) 4621477. Again, strong reliance was placed on a previous supreme court decision – Ezeokonkwo v. okeke (2002) 11 NWLR (pt.777) 1/29, which according to learned appellant’s counsel, is relevant to this appeal as it mentioned and touched upon, “in default of defence.”

Learned appellant’s counsel also referred to pages 28 and 29 of the record of appeal and made the point that it was on the very first day that the matter came up before the trial court, that the motion for judgment was heard and a favourable judgment was accordingly given thereon without the oral testimony of the respondent or any other form of evidence being placed before the trial court. It was then submitted, that in the given circumstances of this appeal “the learned trial court judge did not act judiciously.” Thus, it was added that it, “was certainly wrong to have given judgment on a claim for declaratory relief without hearing evidence.”

Regarding the third issue, it was contended in the main, that the learned trial judge was not justified in his refusal to set aside his said judgment and proceed thereafter to hear the matter on the merit. It was the argument of the learned counsel for the appellant, that in the appellant’s motion on notice, seeking to set aside the judgment in question, it was deposed that the appellant was not served with respondent’s motion on notice for judgment. Mention was also made, that the respondent who deposed to a counter affidavit, attached an affidavit of service to his counter affidavit’ Attention was then drawn to the trial court’s ruling, to the effect that, “no attempt has been made to discredit the affidavit of service”, hence, the refusal by the learned trial judge to grant appellant’s application to have the judgment obtained in its absence and or default of defence, to be set aside. Appellant’s respectful submission, is to the effect that in view of the conflict between the two affidavit evidence placed before the trial court, the need had arisen for the taking of oral evidence as the only means of resolving the stalemate’ citing General and Aviation services Ltd. v. Thahal (2004) 10 NWLR (pt. 880) 50/90, it was submitted and with reliance being placed on the concluding prouncement of Ejiwumi JSC, in the cited case, that the holding by the trial court, “that the respondent by attaching the bailiffs proof of service” to respondent’s counter affidavit, “had resolved the matter and there was no conflict in the two affidavits, was with respect wrong”‘

Again learned appellant’s counsel cited Eronini & ors v. Iheuko (1989) 2 NWLR (pt. 101) 46/60 with the submission that the trial court ought to have set aside its judgment in default in favour of

a hearing on the merit and for not doing this, it has not exercised its discretion in respect of this matter judicially and judiciously. We were urged to resolve the three issues as argued in favour of the appellant herein.

The conjoined short point in this appeal is whether or not, the trial court in the given circumstances of this case’ should have given judgment in the first instance in default of defence/pleading and thereafter, whether it ought to have properly exercised its discretion and grant the application of the appellant herein in respect thereof, put differently, the issue is simply, whether or not in the given circumstances of the case, the trial court was right in its refusal to set aside the default judgment obtained against the appellant and in favour of the respondent herein, moreso, in an action seeking for declaratory relief and where no scintilla of evidence was adduced on the printed record by the said respondent.

It is also the established practice that, after a court becomes seised of a matter, it has the bounden duty of notifying the parties and more particularly, the adverse party of any date fixed for hearing of the matter and subsequent adjournment dates in respect thereof. If the court glosses over and or fails to perform such a duty, then it is committing an unpardonable blunder which will be reversed ex debito justitiae by an appellate court.

Indeed, before proceeding with the hearing in a matter, a trial court must leave nothing to assumption. It must be absolutely sure or duly satisfied that the adverse party has been properly served with relevant court processes, showing that the matter is scheduled for hearing on the stated day, before proceeding with and forging ahead to forage into the matter. Thus, where a defendant is absent on such an adjourned or subsequent adjournment dates in which a matter has been fixed for hearing, then the court must be satisfied through the placement of affidavit of service before it, that the adverse party had been duly, properly and satisfactorily served with all requisite and relevant court processes as required by law.

Thus, as a result of the untoward developments which might ensue and somewhat affect him as a result of consequences of such failure to appear, the court must be absolutely, duly and fully satisfied that the alleged service was actually effected as required by law. The proof of service must be satisfactory and verifiable.

The service of hearing notice or as in the instant case, a motion for judgment is more than a mere procedural stage in the adjudication process of a matter. It is a crucial or vital aspect of the entire case/proceedings. Indeed, it is a substantive issue which goes to the root of the matter as it touches the competence and jurisdiction of the court to proceed with the matter thereafter. In the instant case, 16th January, 2006, being the date fixed for hearing of the respondent’s motion on notice for judgment, the trial court ought to have been fully and satisfactorily satisfied that the said motion for judgment was duly and properly served on the appellant. Well see anon, whether this was done.

Nevertheless, it is not that an affidavit of service is a conclusive and or irrebuttable proof of service. The purpose of an affidavit of service is to inform the court that the party who is entitled to be served has been served. Howbeit, where there is counter evidence in the form of an affidavit which contradicts or challenges the contents or depositions contained in the said affidavit of service, then the need has arisen for the trial court to resolve the impasse, one way or the other, since a bailiff’s affidavit of service is not irrefutable or irrebuttable. Like any other piece of evidence, it is capable of being challenged or countered – successfully or otherwise.

In a situation, where a lower court is faced with denial of requisite service of a fundamental court process, either by personal or substituted means, such a lower court is bound to call oral evidence in order to resolve the conflict in the affidavit evidence placed before it, This is more so, because the issue as to whether a court process has been served or not is a question of fact in respect of which oral evidence ought to have been given. See Mohammed v Mustapha (1993) 5 NWLR (Pt. 292) 222/232; Katsina L. A. v. Makudawa (1971) 1 MLR 100. It is thus erroneous on the part of the lower court to treat and or regard the bailiff’s affidavit of service as if it were a final and conclusive proof of such service. See Wappah v, Mourah (2006) 18 NWLR (Pt. 1010) 18/45.

It has long been established by a plethora of authorities, that where the depositions in an affidavit filed in support of an application has been sufficiently challenged by a counter affidavit filed by the adverse party, the conflicting affidavits cannot be the basis for proper exercise of a court’s discretion, without the taking of oral evidence from the parties, deponents or other witnesses as the parties may wish to call in order to resolve the conflicting or opposing evidence contained in their respective affidavits. See Akinsete v, Akindutire (1966) 1 SCNLR 389, (1966) 1 All NLR L47; Fashanu v. Adekoya (1974) 1 All NLR (Pt. 1) 35; Falobi v. Falobi (1976) 9 – 10 SC 1; Eboh v. Ok (1974) 1 SC 178; Ukwu V. Okumagba (1974) 3 SC 35. Ezechukwu v. Onwuka (2006) 2 NWLR (Pt. 963) 151.

Additionally, the facts or depositions in such affidavits have to be proved in similar manner like averments in pleadings.

In the instant case, the appellant claimed and deposed in an affidavit that it was not served with the respondent’s motion on notice for judgment. The respondent deposed to the contrary and placed reliance on the bailiff’s affidavit of service as proof that appellant was duly served on 22nd December, 2005. It is obvious that the counter affidavit filed by the respondent, has sufficiently and seriously challenged the appellant’s deposition regarding non service in the appellant’s affidavit in support of the motion to set aside the default judgment obtained in its absence. In such a given circumstance, the learned trial court judge ought to have called for oral evidence before determining the appellant’s application. If this had been done, the bailiff in question who deposed that he had served the requisite court process on the appellant, would have been able to proffer evidence, which would have enabled the trial court to decisively resolve the conflict and satisfactorily determine whether the requisite court process was properly and duly served on the appellant herein as required by law. I am thus in agreement with the submission of learned counsel for the appellant that the riddle deserves to be unravelled by the calling of oral evidence. The learned trial judge with due respect ought to have ascertained by verifying without just assuming that proper service of the motion for judgment had been effected on the absent party – appellant herein. It was thus wrong for the trial court, not to have done exactly this. Indeed, in the absence of other documentary evidence to substantiate or buttress the two opposing positions, there is scarcely nothing on the printed record to accredit and or discredit either of the parties in the given circumstances of the instant case. Additionally, the respondent herein, going by the appellant’s memorandum of appearance filed on 29th November, 2005 and reproduced in this judgment, ought to have served the appellant with his motion on notice for judgment, care of or through the address of appellant’s solicitor/counsel, whose address for service has been clearly stated and indicated thereon Ironbar & Associates, 11, King street calabar, on the other hand, and to make confusion worse confounded, the bailiff’s affidavit of service merely stated therein, that the process in question was served on an unnamed, “secretary to the Bank, at Aka Road – Uyo”.

It is also pertinent for me to reproduce the record of proceedings of 16th January, 2006, when the respondent’s motion on notice for judgment was moved and granted by the lower court. It shows:

“Plaintiff is in Court.

Defendant is absent

Ekpenyong Ntekim Esq. for the Plaintiff/applicant, wit him Miss Comfort Etim.

No Counsel for the Defendant.

Mr. Ntekim says. they have an application for judgment. Application is bought under order 27 of the High court (civil Procedure) Rules, motion has been served on the Defendant since 22/12/05. Motion is brought on the ground that the defendant has not filed a statement of Defence, neither have they responded to the motion on notice. Submits that application can be granted under Rules 7 and 8 of order 27.

Urges the Court to grant the application since the defendant has failed to react to this motion on notice.” (Underlining added)

The lower court without much ado, proceeded and granted the prayers sought by the respondent therein. It is glaring from the above, that no indication was given by the trial court as to whether the appellant was duly served or not. All that can be gleaned from the printed record was that the “defendant is absent” and “no counsel for the defendant”, Again, it was counsel who simply informed the trial court that the “motion has been served since 22/12/05.” The usual procedure and established practice is for the learned trial judge to clearly indicate that the adverse party was duly served and was absent and unrepresented. Furthermore, that the court was satisfied with the proof of service placed before it. As it can be seen from the above, nothing of the sort happened in the instant case. When a matter comes up before a trial court, the said court has a bounden duty to fully satisfy itself that the adverse party to the case was properly served and can be fixed with knowledge that the matter is scheduled to come up before the trial court on the stated day. The trial court cannot afford the luxury of assumption that a party is or ought to be aware of the suit coming up for hearing in the absence of due enquiry or place reliance on counsel statement to that effect made in open court. This is more so, because it is not the duty of counsel to determine for the court, whether or not there was due and proper service of requisite court process on the adverse party. That duty rightly belongs to the court. See John A. S. C. Ltd, V. Mfon (2007) 4 WRN 173.

It is thus somewhat clear that the learned trial judge did not advert his mind to this aspect of the instant matter. I observe with due respect, that if adequate consideration had been so given, the finding that evidence placed before him being “satisfactory” would not have been the prevalent position as the service allegedly effected on the appellant herein was deficient and unsatisfactory, going by requirements of the law.

Regarding the weight and worth of evidence required from a claimant of declaratory relief, the position of the law has been elucidatingly pronounced upon and restated in a plethora of cases which include Ayanru (retd) v. Mandilas Ltd. (2007) 10 NWLR (Pt. 1043) 462/477 – 478 per Mohammed, JSC, thus:

” A claim for a relief of declaration , whether of title to land or not, is not established by an admission by the defendant, because the plaintiff must satisfy the court by cogent and credible evidence called by him to prove that as a claimant, he is entitled to the declaratory relief. It is the law that a court does not grant declaration on admission of parties because the court must be satisfied that the plaintiff on his own evidence, is entitled to the relief claimed… It is for the plaintiff to prove his case and not for the defendant to disprove the plaintiffs claim.

Therefore, where the plaintiff on his own evidence failed to prove his claim for declaration, his claim must be dismissed. See Agbana v. Owa (2004) 13 NWLR (Pt. 889) 1/17.”

Indeed, courts do not make it a habit or encourage the trend of making declarations of right either on admissions by the adverse party or default of appearance and or defence/pleading. In an action for declaratory relief, the court must satisfy itself by evidence properly adduced and not otherwise. See Bello v. Eweka (1981) 1 SC 101. Nkwocha & Ors. v. Ofurum & Ors. (2002) 5 NWLR (Pt. 761) 506; Kwajaffa v. B.O.N. Ltd, (2004) 13 NWLR (Pt.889) 146/172; Ndayako v. Dantoro (2004) 13 NWLR (pt. 889) 181/214.

The judgment delivered by the trial court in the instant case is a default judgment in default of pleadings and appearance. It was delivered in the absence of filing a statement of defence by and appearance of either the appellant herein or its counsel. I have reminded myself of the established position in law to the effect that, ordinarily, an appellate court should tread carefully and be overtly wary of reversing or setting aside the exercise of discretion by a lower court, Howbeit, if the appellate court is positive on the point that there has been a wrongful exercise of the vested discretionary power by the trial court, because it failed to accord due weight to weighty issues or give requisite considerations to relevant factors upon which the exercise of the discretionary power is predicated, the appellate court is entitled and or duty bound to interfere with such exercise of discretionary power by a lower court. see okere v. Nkem (1992) 4 NWLR (Pt.234) 132; Oyeyemi v. Irewole Local Government (1993) 1 NWLR (Pt.270) 462. Thus, where the decision of a trial court is predicated on unresolved conflicting affidavits, an appellate court is entitled to interfere and should not hesitate to do so. Such a decision should not be allowed to stand. See K. Martins (Nig.) Ltd. v. U. P. L. (1992) 1 NWLR (Pt.217) 322.

It 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 or complain that it has been treated unfairly and that its constitutionally guaranteed right to fair hearing has been breached,

such a party who seeks redress must be given due attention, a listening ears and accorded requisite relief. Due process and observance of rule of law, do not reckon with inequality or double standard. All parties before a court deserve to be treated fairly, have their cases determined on the merits and the dispensation of substantial and not technical justice. The era of technical justice is fastly receding into the past. The new positive trend on the horizon is absolute, pristine and substantial justice. A court in the course of determining the rights of parties, must stand aloof, detached and dispassionate in its treatment of any matter before it.

The resultant effect of non – compliance with or breach of right to fair hearing, particularly in the course of conduct of a hearing is the invalidation of such proceedings with the end result that the said proceedings will be rendered null and void. see Akoh v. Abuh (1988) 3 NWLR (pt. 85) 696.

In the instant case, the proved fact, that the appellant was unnecessarily and unduly shut out, culminated into gross breach of its right to fair hearing and thus the decision reached thereon by the trial court is absolutely null and void.

For the above reasons, I hereby resolve all the three issues raised and argued in this appeal in favour of the appellant. In the premise and final analysis, the appeal has merit and it is accordingly allowed by me. I hereby set aside the rulings/decisions of I. N. B. Isua, J., in Suit No. HU/229/2005, delivered on 16th January, 2006 and 16th November, 2006 respectively, wherein the respondent obtained a favourable judgment in default of defence against the appellant and the subsequent refusal of appellant’s application to set aside the said default judgment. The case is remitted to the chief Judge, Akwa Ibom state Judiciary for re – assignment to another Judge other than Isua, J., for a fresh hearing on the merit. Parties are to bear their respective costs. Ordered accordingly.

KUMAI BAYANG AKKAAHS, J.C.A.: I was privileged to read in draft the judgment of my learned brother Oredola, JCA. For the detailed reasons contained in the lead judgment which I adopt, I also allow the appeal and set aside the default judgment. I abide by the consequential order remitting the case to the Chief Judge of Akwa Ibom State for re-assignment to another Judge other than Isua, J. for hearing and determination on the merits.

JA’AFARU MIKA’ ILU, J.C.A.: I have read in draft the lead judgment of my learned brother Massoud Abdulrahman Oredola, JCA. The right to fair hearing is fundamental. The resultant effect of its breach is the invalidation of the preceding. The breach renders the proceedings null and void. In this case the appellant was unnecessarily and unduly shut out. This amounts to gross breach of right to fair hearing and as such the decision reached by the trial court is null, and void. I am also of the view that, the appeal has merit and it is allowed. The ruling/decision of the trial, court is set aside. The case is remitted for retrial by another judge. I award no costs.

Appearances

N. E. Ene Esq.For Appellant

AND

Absent and unrepresented.For Respondent