VISCO PRODUCTION SUPPORT SERVICES LTD & ANOR v. SKYE BANK
(2020)LCN/15918(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, March 12, 2020
CA/L/52/2017
Before Our Lordships:
Joseph Shagbaor Ikyegh Justice of the Court of Appeal
Obande Festus Ogbuinya Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
1. VISCO PRODUCTION SUPPORT SERVICES LIMITED 2. EDWIN IKECHUKWU ANYADIGIBE APPELANT(S)
And
SKYE BANK PLC (Formerly Afribank Nig. PLC/ Mainstreet Bank Limited) RESPONDENT(S)
RATIO:
EFFECT OF FAILURE TO SERVE COURT PROCESSES
Where service of process is required and there is failure to do so, the order ensuing from the proceeding is a nullity and the party affected is entitled ex debito justitiae to have it set aside. See SGBN Ltd. v. Adewunmi (2003) 10 NWLR (Pt. 829) 529; Mark v. Eke (2004) 16 WRN 57; (2004) 5 NWLR (Pt. 865) 54; Tsokwa Motors (Nig.) Ltd. v. UBA Plc. (2008) 2 NWLR (Pt. 1071) 347. Per OBANDE FESTUS OGBUINYA, J.C.A.
BREACH OF FAIR HEARING.
A proof of breach of fair hearing carries with it a miscarriage of justice. Put differently, a miscarriage of justice is inherent in a breach of a right to fair hearing, see Mpama v. FBN Plc. (supra); Eze v. Unijos (2017) 17 NWLR (Pt. 1593) 1; N.U.T, Taraba State v. Habu (supra); Thomas v. FJSC (2019) 7 NWLR (Pt. 1671) 284. Per OBANDE FESTUS OGBUINYA, J.C.A.
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal is an offspring of the decision of the High Court of Lagos State, holden in Lagos (hereinafter addressed as “the lower Court”), coram judice O.A. Ogala, J., in Suit No. LD/1418 CMW/2015, delivered on 30th November, 2016. Before the lower Court, the appellants and the respondent were the respondents and the claimant respectively.
The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. At the instance of the first appellant, the respondent, on 2nd October, 2008, granted a loan facility of N150m to it for the purpose of fabrication of mud skips. The loan was guaranteed by the second appellant, its alter ego. The loan was secured by a mortgage/charge on the first appellant’s assets on the authorisation of the second appellant. At the expiration and maturity of the facility, the appellants failed, refused and neglected to repay the accrued sum despite the repeated demands from the respondent. As at 17th February, 2015, the accrued sum of the loan had risen to N191m. Sequel to the default in repayment, the respondent beseeched the lower Court, via a writ of summons filed on 10th November, 2015, and tabled against the appellants, jointly and severally, the following reliefs:
a. The sum of N191,926,535.40 (One Hundred and Ninety-one Million, Nine Hundred and Twenty-six Thousand, Five Hundred and Thirty-five Naira, Forty Kobo) against the Defendants, jointly and severally, being outstanding balance on loan advances granted to the 1st Defendant and guaranteed by the 2nd Defendant.
b. The Claimant claims interest against the Defendants at 22% per annum from the date of this writ till judgment and thereafter at the rate of 6% per annum until final liquidation.
c. An Order directing the Claimant to sell the parcel of Land situated at Rumuaghaolu in Obio/Akpor Local Government Area of Rivers State Known as A.C. Bobmanuel Estate (Visana Prestige Homes) together with the improvements thereon and all other assets of the company which was used as Security for the Loan.
d. Cost of the action.
The respondent filed, alongside with the writ of summons, an application for summary judgment, pursuant to the provision of Order 11 Rules 1 and 2 of the Lagos State High Court (Civil Procedure) Rules, 2012 (the High Court rules, for short), for the same reliefs in the writ of summons and statement of claim.
In reaction, the appellants entered a conditional appearance, filed a statement of defence and a preliminary objection to the action. The matter came before the lower Court on 24th March, 25th April, 30th May, 16th June, 20th September and 2nd November, 2016. In a considered judgment, delivered on 30th November, 2016, found at pages 225-228, the lower Court granted the respondent’s application and entered judgment in its favour.
The appellants were dissatisfied with the decision. Hence, on 21st December, 2016, the appellants lodged a 3-ground notice of appeal, copied at pages 247-249 of the record, wherein they prayed this Court: “To allow the appeal and set aside the judgment of the trial Court.” Thereafter, the parties filed and exchanged their respective briefs of argument in line with the rules regulating the hearing of civil appeals in this Court. The appeal was heard on 28th January, 2020.
During its hearing, learned counsel for the appellants, Olakunle Fapohunda, Esq. adopted the appellants’ brief of argument, filed on 2nd November, 2017 and deemed properly filed on 28th January, 2020, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondent, Amobi Agu, Esq. adopted the respondent’s brief of argument, filed on 6th July, 2018 and deemed properly filed on 28th January, 2020, as forming his reaction against the appeal. He urged the Court to dismiss it.
In the appellant’s brief of argument, learned counsel distilled a single issue for determination to wit:
Considering the facts and circumstances of this appeal, vis-a-vis the principle of natural justice- audi alteram partem; the clear provision of Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); and decisions of superior Courts of record, whether the lower Court was not in grave error and acted without jurisdiction when it assumed jurisdiction over same and entered judgment against the Appellants summarily on 30th November, 2016.
Admirably, learned counsel for the respondent adopted the single issue crafted by the learned appellant’s counsel.
Arguments on the issue
Learned counsel for the appellants submitted that a party is entitled to fair hearing in any proceedings. He relied on Section 36 (1) of the Constitution, as amended; Blacks Law Dictionary, 9th Edition, Page 789 Genesis 3: 11-13 of the Holy Book; Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587; Olatunbosun v. NISER (1988) 3 NWLR (Pt. 80) 25. He noted that audi alteram partem and nemo judex in causa sua formed the doctrine of natural justice. He observed that the appellants filed processes that challenged the jurisdiction of the lower Court. He asserted that a Court must be fair to all parties in a case. He referred to Usani v. Duke (2004) 7 NWLR (Pt. 871) 116; Ayorinde v. Fayoyin (2001) FWLR (Pt. 75) 483; Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419.
Learned counsel contended that non-service or improper service of hearing notice would render a proceeding a nullity. He cited Olurunyomi v. Akhaegbe (2008) 8 NWLR (Pt. 1195)48; B.O.N. v. Adegoke (2006) 1
0 NWLR (Pt. 988); Odutola v. Kayode (1994) LPELR (sic-no-page) (SC); Aluko v. Ogungbemi (2008) All FWLR (Pt. 397) 179; Achuzia v. Ogbomah (2016) LPELR -40050(SC); Darma v.Eco Bank (Nig.) Ltd. (2017) 9 NWLR (Pt. 1571) 480. He maintained that the lower Court wrongly failed to issue hearing notices to the appellants on 20th September, 2016 and 2nd November, 2016.
It was argued by learned counsel that the lower Court was, under the doctrine of stare decisis, bound to follow decisions of the appeal Courts on the need for hearing notices. He cited Atolagbe v. Awuni (1997) 9 NWLR (Pt. 522) 536. He reasoned that the goal of the law was to ensure substantial justice to all before the Court. He referred to Josiah v. State (1985) 1 NWLR (Pt. 1) 125; Ajide v. Kelani (1985) 3 NWLR (Pt. 12) 248. He urged the Court to nullify the judgment of the lower Court.
On behalf of the respondent, learned counsel enumerated the ingredients of fair hearing. He relied on Section 36 (1) of the Constitution, as amended; Kano Native Authority v. Obiora (1959) 4 FSC 226/ (1999) SCNLR 577 1. He noted that audi alteram partem formed a vibrant component of fair hearing. He cited Arubo v. Aiyeleru (1993) 2 SCNJ 90/ (1993) 3 NWLR. (Pt.280) 126. He asserted that a person who failed to take advantage of fair hearing created by the Court would not blame it. He cited Kaduna Textiles Ltd. v. Umar (1991) 1 NWLR (Pt. 319) 143; A-S.R. Co. Ltd. v. O.O. Biosah & Co Ltd. (1997) 11 NWLR (Pt. 527) 145; Erinfolami v. S.G.B. (Nig.) Ltd. (2008) 7 NWLR (Pt. 1086) 306; Bill Const. Co. Ltd. v. Imani & Sons Ltd. (2006) 19 NWLR (Pt. 1013). He stated that the lower Court, in order to ensure transparency, ensured that the appellants were served with all the Court processes. He narrated the happenings on the different dates of the proceedings.
Learned counsel contended that when a defendant defaulted in appearance, a plaintiff would be at liberty to prove his case as happened before the lower Court. He cited Order 10 Rules 2 and 3 of the High Court Rules. He claimed that the appellant’s conduct was reprehensible and full of delay so that they would not rely on lack of hearing. He referred to A.G, Rivers State v. Ude (2006) 17 NWLR (Pt. 1008) 436; Ajani v. Giwa (1986) 3 NWLR (Pt. 32) 796. He persisted that the appellant’s abandoned their case and could not be plead lack of fair hearing. He relied on MFA v. Inongha (2014) LPELR-22010 (SC).
Resolution of the issue
A clinical examination of the issue, amply, showcases its hub as a plain one. It quarrels with the lower Court’s failure to issue and serve hearing notices on the appellants prior to its delivery of the judgment which is in heat of expunction.
By way of necessary prefatory remarks, Nigeria operates an adversarial system of adjudication in which service of Court process on a party to a proceeding is fundamental. It is service of process that infuses a Court with the jurisdiction to entertain a matter. It enables a party to appear before a Court without being ambushed. Service of process is sine qua non for hearing of any matter in a Court law in that it vests Courts with jurisdiction. It is required in all proceedings save those initiated via ex parte applications. Where service of process is required and there is failure to do so, the order ensuing from the proceeding is a nullity and the party affected is entitled ex debito justitiae to have it set aside. See SGBN Ltd. v. Adewunmi (2003) 10 NWLR (Pt. 829) 529; Mark v. Eke (2004) 16 WRN 57; (2004) 5 NWLR (Pt. 865) 54; Tsokwa Motors (Nig.) Ltd. v. UBA Plc. (2008) 2 NWLR (Pt. 1071) 347; Otu v. ACB Int’l Bank Plc. (2008) 3 NWLR (Pt. 1073) 179; Okoye v. CPMB Ltd. (2008) 15 NWLR (Pt. 1110) 335 Achuzia v. Ogbomah (2016) 11 NWLR (Pt. 1522) 59 (supra); Apeh v. P.D.P (2016) 7 NWLR (Pt. 1510) 153; Nwadiogbu v. A.I.R.B.DA. (2010) 19 NWLR (Pt. 1226) 364; Uzodinma v. Izunaso (No.2) (2011) 17 NWLR (Pt. 1275) 30; Estate of Late Chief H.I.S. Idisi v. Ecodril (Nig) Ltd. (2016) 12 NWLR (Pt. 1527) 355; B.B. Apugo & Sons Ltd. v. O.H.M.B (2016) 13 NWLR (Pt. 1529) 206; Emeka v. Okoroafor (2017) 11 NWLR (Pt. 1577) 410; Regd. Trustees, P.C.N v. Etim (2017) 13 NWLR (Pt. 1581) 1; Zakirai v. Muhammed (2017) 17 NWLR (Pt. 1594) 181; APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1; Adegbola v. Osiyi (2018) 4 NWLR (Pt. 1608) 1; Ezim v. Menakaya (2018) 9 NWLR (Pt. 1623) 113; Onwubuya v. Ikegbunam (2019) 16 NWLR (Pt. 1697) 94.
In the same vein, service of hearing notice, the means and procedure to compel a party to appear in Court, is imperative in adjudication. Hearing notice is a document, which is issued from the Court registry, which gives legal notification to parties in a suit the dates on which it would be heard, see Darma v. Ecobank (Nig.) Ltd. (2017) 9 NWLR (Pt. 157) 480. Service of hearing notice on a truant party ignites the jurisdiction of a Court over a matter. Where it is necessary to serve hearing notice, but it is not effected on a party, the Court will be robbed/drained of the vires to try or continue to hear an action and any orders flowing from it will be enmeshed in and vitiated by nullity, see John Andy Sons & Co. Ltd. V. Mfon (2007) 4 WRN 173; Mbadinuju v. Ezuka (1994) 10 SCNJ 109; Nasco Mgt. Service Ltd. v. A. N. Amaku Trans Ltd. (2003) 2 NWLR (Pt. 804) 290; Mpama v. FBN Plc. (2013) 5 WLR (Pt. 1346) 177; S & D Const. Ltd. V. Ayoku (2011) 13 NWLR (Pt. 1265) 487; Apeh v. PDP (supra); NACB Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Ugo v. Ummuna (2018) 2 NWLR (Pt. 1602) 102; Ezim v. Menakaya (supra); ENL Consortium Ltd. v. S.S. (Nig.) Ltd. (2018) 11 NWLR (Pt. 1630) 315; Achuzia v. Ogbomah (supra); NUT, Taraba State v. Habu (2018) 15 NWLR (Pt. 1642) 381.
Now, the appellants’ chief grievance, indeed their trump card on the sole issue, is that they were denied service of hearing notices for proceedings of 20th September, 2016, 2nd November, 2016 and 30th November, 2016 conducted by the lower Court. In due fidelity to the desire of the law, I have visited the record, the bedrock of every appeal, especially at the residence of the relevant proceedings of 16th June, 2016, 20th September, 2016, 2nd November, 2016 and 30th November, 2016 which monopolise pages 221-224 thereof. Each day’s proceeding is brief and wrapped in one page. I have perused them with the finery of a tooth comb. Interestingly, they are comprehension-friendly. It is discernible from the record, that the appellants were not served with hearing notices for the proceedings of the aforementioned dates. On 16th June, the record discloses that the appellants were duly, represented by counsel, Olakunle Fapohunda, Esq. The matter was adjourned to 20th September, 2016. In the eyes of the law, since the appellants were represented by counsel on 16th June, 2016, they were not qualified to be issued with hearing notices in respect of the proceedings of 20th September, 2016, see S & D Const. Co. Ltd. v. Ayoku (supra). However, for proceedings of 2nd November and 30th 2016, the appellants deserved service of hearing notices. Curiously, I am unable to find, even with the prying eagle-eye of a Court, where the lower Court ordered for service of hearing notices on the appellants against the proceedings of 2nd and 30th November, 2016, a fortiori their service on them. In other words, the lower Court failed to make such order during the proceedings of 20th September and 2nd November, 2016 on which the appellants were absent and unrepresented by counsel. The respondent’s counsel admitted this much in the respondent’s brief of argument. That is a commendable advocacy that is worthy of emulation.
In Mbadinuju v Ezuka (1994) 10 SCN 109 at 121 and 122, Ogundare, JSC, confirmed:
There is nothing on record to show whether the parties and/or their counsel were served with hearing notice for 13/2/78. Neither is there anything on record to show that the parties were served with the hearing notice that the main suit itself would be put on the Court’s list for that day. In the absence of such proofs, it will be difficult to conclude the parties knew of the proceedings for that day.
It is decipherable from this magisterial pronouncement, that the appellants possessed the right of being served with hearing notices even from day to day inclusive of date of delivery of judgment, see Apeh v. PDP (2016) 7 NWLR (Pt. 1510) 153; Darma v. Ecobank (Nig) Ltd. (2017) 9 NWLR (Pt. 1571) 480. Such service becomes more imperative when a party is absent and unrepresented by counsel as happened on 30th September and 2nd November, 2016 supra, see Achuzia v. Ogbomah (2016) 11 NWLR (pt. 1522) 59. After hearing the respondent’s application on 2nd November, 2016, the lower Court adjourned to 30th November, 2016 for ruling thereon. No order for service of hearing notices on the appellant’s was decreed. That was a classic exemplification of transgression of the law in that the appellants were entitled to sum up their case, see Mpama v. FBN PLC (2013) 5 NWLR (Pt. 1346) 176; Achuzia v. Ogbomah (supra). In glaring absence of such order nor service of hearing notices, the lower Court defiled/fractured the law when it proceeded to hear the respondent’s application, afortiori to enter judgment in its favour. Any dereliction in service of hearing notice vitiates the entire proceedings, see Apeh v. PDP (supra).
In a spirited bid to castrate the appellants’ case, the respondent erected defences of indolency and abandonment of case against the appellants. This brief judicial survey, anatomised above with the aid of ex-cathedra authorities, clearly, punctures and disables the two defences in the sense that they fly in the face of the law.
The appellants accused the lower Court’s judgment, which germinated from the proceedings of 2nd November, 2016, as an erosion of their inviolable right to fair hearing as guaranteed/enshrined in Section 36 (1) of the Constitution, as amended. Fair hearing connotes a trial which is conducted in accordance with all the legal rules formulated to ensure that justice is done/dished out to parties to the cause, see Eze v. FRN (2017) 15 NWLR (Pt. 1589) 433; Ardo v. INEC (2017) 13 NWLR (Pt. 1583 450; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1; Akingbola v. FRN (2018) 14 NWLR (Pt. 1640) 395; La Wari Furniture & Baths Ltd. v. FRN (2019) 9 NWLR (Pt. 1677) 262. Due to its olympian status in the appeal, it is germane to display some of the notable features of fair hearing – a mantra which, nowadays, competes with jurisdiction for prominence in adjudications.
The ancient concept of fair hearing traces its paternity to divinity. It was a common law doctrine which has metamorphosed into the corpus of our jurisprudence and, firmly, entrenched in Section 36(1) of the Constitution, as amended. It donates to the citizens the inviolable right to ventilate their grievances on the altar of the two concrete pillars of natural justice to wit: audi alteram partem – hear the other side and nemo judex in causa sua – no one should be a judge in his own case. The whole essence of fair hearing, which is coterminous with fair trial, connotes giving parties to any proceedings, be it judicial or administrative body, an equal opportunity to present their cases. It follows, that fair hearing is totally divorced from correctness of a decision. It centres on the cardinal principle that a fair-minded person who watched the proceedings, before a Court or administrative or quasi judicial body, should conclude that it exhibited even handedness/fairness in apportioning justice to the feuding parties, see O.O.M.F. Ltd v. NACB (2008) 12 NWLR (Pt. 1098) 412; Nwanegbo v. Olawole (2011) 37 WRN 101; Kim v. State (1992) 4 NWLR (Pt. 233) 17; Newswatch Comm. Ltd. v. Atta (2006) 12 NWLR (Pt. 993) 144; FRN v. Akabueze (2010) 17 NWLR (Pt. 1223) 525; S & D Const. Co. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 487; Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Nigeria Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56; J.S.C., Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Mpama v. FBN Plc (2013) 5 NWLR (Pt. 1346) 176; Abah v Monday & Ors (2015) 14 NWLR (Pt. 1480) 569; Gov., Zamfara State v. Gyalange (2013) 8 NWLR (Pt. 1357) 462; Achuzia v. Ogbomah (2016) 11 NWLR (Pt. 1522) 59; Danladi v. Dangari (2015) 2 NWLR (Pt. 1442) 124; Labour Party v. Bello (2017) 2 NWLR (Pt. 1548) 148; Darma v. Ecobank (Nig.) Ltd. (2017) 9 NWLR (Pt. 1571) 480.
The Apex Court, in Baba v. Civil Aviation (1991) 5 NWLR (Pt. 192) 388 at 423, per Nnaemeka-Agu, JSC, evolved the parameters to guide the Court to ensure fair hearing to include the right of the person to be affected:
(i) to be present all through the proceedings and hear all the evidence against him;
(ii) to cross-examine or otherwise confront or contradict all the witnesses that testify against him;
(iii) to have read before him all the documents tendered in evidence at the hearing;<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
(iv) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial to the party, save in recognised exceptions;
(v) to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and
(vi) to give evidence by himself, call witnesses if he likes, and make oral submissions either personally or through a counsel of his choice.
See, also, JSC, Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Eze v. FRN (supra); Olayioye v. Oyelaran (2019) 4 NWLR (Pt. 1662) 351; La Wari Furniture & Baths Ltd. v. FRN (supra); S & D Const. Co. Ltd. v. Ayoku (supra).
As already noted, the law donates to the appellants the unbridled licence to present their case before the lower Court. The denial curtailed their right to address the Court, see Mpama v. FBN Plc. (supra); Achuzia v. Ogbomah (supra). Thus, this is a quintessential instance of violation of the appellants’ inviolate right to fair hearing as entrenched in Section 36(1) of the Constitution, as amended. Put simply, the appellants discharged the burden to prove a denial of fair hearing which the law has saddled on him, see Maikyo v. Itodo (2007) 7 NWLR (Pt. 1034) 443; S & D Const. Co. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 487. The appellants needed not to prove the damages or losses they incurred consequent upon the breach of their right to fair hearing, see Oshiomhole v. Airhiavbere (2013) 7 NWLR (Pt. 1353) 376; Olayioye v. Oyelaran (supra). A proof of breach of fair hearing carries with it a miscarriage of justice. Put differently, a miscarriage of justice is inherent in a breach of a right to fair hearing, see Mpama v. FBN Plc. (supra); Eze v. Unijos (2017) 17 NWLR (Pt. 1593) 1; N.U.T, Taraba State v. Habu (supra); Thomas v. FJSC (2019) 7 NWLR (Pt. 1671) 284.
Where a party’s sacred right to fair hearing is flouted, as in this case, no matter the quantum of fair-mindedness, dexterity, artistry and objectivity injected into the proceeding hosting the breach, it will be mired in a nullity, see Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452; C.K & W. M. C. Ltd. v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Eze v. Unijos (supra); Ezenwaji v. U.N.N. (2017) 18 NWLR (Pt. 1598) 485; Poroye v. Makarfi (2018) 1 NWLR (Pt. 1599) 91; APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1; S.A.P. Ltd. v. Min., Petroleum Resources (2018) 6 NWLR (Pt. 1616) 391; Zenith Plastics Ind. Ltd v. Samotech Ltd. (2018) 8 NWLR (Pt. 1620) 165; Olayioye v. Oyelaran I (supra), La Wari Furniture & Baths Ltd. v. FRN (supra). This is a confluence point where want of fair hearing and jurisdiction embrace themselves to vitiate proceedings that give birth to denial of fair hearing, see O.O.M.F. Ltd. v. NACB Ltd. (supra); Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Achuzia v. Ogbomah (supra); Apeh v. PDP (2016) 7 NWLR (Pt. 1510 153; Abah v. Monday (2015) 14 NWLR (Pt. 1480) 569.
In the eyes of the law, nullity denotes: “Nothing; no proceeding; an act or proceeding in a case which the opposite party may treat as though it had not taken place; or which has absolutely no legal force or effect”, see Lasisi v. State (2013) 12 NWLR (Pt. 1367) 133 at 146, per Ngwuta JSC; Ezenwaji v. U.N.N. (supra); Mamman v. Hajo (2016) 8 NWLR (Pt. 1575) 411. The dire consequence of a nullity is far-reaching. If a decision or proceeding is soiled with nullity, it is void and taken as it was never given or made, see Okoye v. Nigeria Const. & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342. Moreover, such a decision or proceeding, in the view of the law, bestows no enforceable right on its beneficiary party who possesses it nor does it impose any obligations on its victim party, see Ajiboye v. Ishola (2006) 13 NWLR (Pt. 998) 628; Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. The bounden duty of a Court is to set aside a null order ex debito justitiae in that it does not exist in law, see Mamman v. Hajo (supra); N.A.C.B. Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Oyeyemi v. Owoeye (2017) 12 NWLR (Pt. 1580) 364.
It flows from the inelastic positions of the law, dissected above, that the lower Court’s decision of 30th November, 2016 was/is marooned in the intractable web of nullity. Since the decision is hostile and offensive to the law, it must be mowed down by the unbiased judicial sword of this Court. In the end, I have no option than to resolve the solitary issue in favour of the appellants and against the respondent.
My noble Lords, for the sake of completeness, the order to make when a person breaches a party’s unforfeitable right to fair hearing, as engraved in Section 36(1) of the Constitution, as amended, is not a moot point. It is settled that: “once there is such a denial of the said right {right to fair hearing} the only order that could be made on appeal is one for re-trial or re-hearing. This is to enable the appellant to be properly heard,” see Kalu v. State (2017) 14 NWLR (Pt. 1586) 522 at 547, per Nweze, JSC; Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124; C.K. & W.M.C. Ltd. v. Akingbade (supra); Akingbola v. FRN (supra); Ahmed v. Regd Trustees, AKRCC (2019) 5 NWLR (Pt. 1665) 300. Furthermore, once an appellate Court intends to order, or orders, for a re-hearing, the law forbids it from treating any other issues in the appeal or points that may arise at the rehearing proceedings, see C. K. & W.M.C. Ltd. v. Akingbade (supra); Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522. I will pay due allegiance to this injunction of the law so as not to prejudice the issues that may crop up during the rehearing sessions.
Before the final verdict, I must observe, by way of obiter, that this case exposes the inherent danger in hasty dispensation of matters and justice. Unarguably, justice delayed, in deserving circumstances, is justice denied. Indeed, “Shakespeare ranks it among the whips and scorns of time. Dickens tells how it exhausts finance, patience, courage, hope,” see Allen v. Sir Alfred Mcalpine & Sons Ltd. (1968)2 Q.B 229/245, per Lord Denning; Usikaro v. Itsekiri (1991) 2 SCNJ 75 at 94. Nevertheless, the converse is true and worrisome: justice rushed smells of mockery and travesty of it, see Danladi v. Dangiri (supra); Uzodinma v. Izunaso (No.2) supra), FRN v. Yahaya (2019) 7 NWLR (Pt. 1670) 85. The respondent and the lower Court, with due reverence, under the guise of quick disposal of cases, jettisoned the accepted Court’s measured speed with which processes travel in adjectival law and thereby scarified justice on the altar of speed. The case will now begin a fresh journey in the bowel of the lower Court and its overall speed will now turn into a millipede pace. What a paradox! The respondent’s desire for quick determination of its action has been truncated by the treatment of the known procedure with contempt. It is unfortunate.
On the whole, having resolved the mono issue in favour of the appellants, the destiny of the appeal is obvious. It is imbued with merit. Consequently, I allow the appeal. Accordingly, I set aside the judgment of the lower Court delivered on 30th November, 2016 for being a nullity. I remit the Suit No. LD/1418 CMW.2015, filed by the respondent, to the Chief Judge of Lagos State for re-assignment to another Judge for hearing de novo. The parties shall bear the respective costs they expended in the prosecution and defence of the fruitful appeal.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in agreement with the concise judgment prepared by my learned brother, Obande Festus Ogbuinya, J.C.A.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have read before now the judgment just delivered by my learned brother FESTUS OBANDE OGBUINYA, JCA, and I agree with the judgment.
The appeal is meritorious and accordingly it succeeds. The judgment of the lower Court is hereby set aside.
I abide by all consequential orders in the lead judgment.
Appearances:
Olakunle Fapohunda, Esq. For Appellant(s)
A. Agu, Esq., with him, A.A. Fadamila Esq. For Respondent(s)
