ZANS FOODS & BEVERAGES LTD v. FBN PLC & ANOR (2022)

ZANS FOODS & BEVERAGES LTD v. FBN PLC & ANOR

(2022)LCN/16661(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, March 25, 2022

CA/IB/84/2017

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

ZANS FOODS & BEVERAGES LIMITED APPELANT(S)

And

1. FIRST BANK OF NIGERIA PLC 2. WUYI ADEYEMO (RECEIVER OF ZANS OF FOODS & BEVERAGES LIMITED) RESPONDENT(S)

RATIO

INSTANCES WHERE A DECISION OR JUDGEMENT CAN BE SET ASIDE ON APPEAL

THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The respondents, in this Court, are the plaintiffs in Suit No. FHC/IB/CS/76/2016 which they commenced by way of an originating summons and wherein they are asking the Federal High Court, holden at Ibadan, to answer the following questions.:
“(a) Whether the 2nd plaintiff being appointed the receiver of the defendant by Deed of Appointment dated 5th April, 2016 is entitled to enter and take possession of the property at Oyo State Small Scale Industries complex, Old NTC Road, Iyaganku, Ibadan and generally exercise all his power and perform his duties as receiver without any interference, obstruction and or hindrance in any manner whatsoever by the defendant or any other person acting or claiming under their authority.
(b) Whether consequent upon the appointment of the 2nd plaintiff as Receiver of the defendant, the right power or authority of the defendant to enter into and remain in possession or deal in any manner with the property at Oyo State Small Scale Industries complex, Old NTC Road, Iyaganku, Ibadan should not be held in abeyance pending the conclusion of the performance of the duties of the 2nd plaintiff as a Receiver.
(c) Whether the plaintiffs are not entitled to an order of injunction restraining the defendant or any person claiming under their authority from entering into and remaining a possession of the aforementioned property at Iyaganku while the 2nd plaintiff as the Receiver is still carrying on his duties.
(d) Whether the 2nd plaintiff is entitled to an order directing the Commissioner of Police, Oyo State Command and the Iyaganku Divisional Police Officer, their deputies and officers attached to them to assist the 2nd plaintiff in the exercise of his powers and the performance of his duties as the Receiver of the defendant’s asset at Oyo State Small Scale Industries Complex Old NTC Road, Iyaganku, Ibadan, until the conclusion of the Receivership.”

In the event that their questions are answered in the affirmative, the respondents seek the following relief from the trial Court:
“(i) An order of this Honourable Court directing the 2nd plaintiff being appointed a Receiver of the defendant’s property at Oyo State Small Scale Industries Complex Old NTC Road, Iyaganku, Ibadan, pursuant to the Deed of Appointment dated 5th April, 2016 and in accordance with the All-Assets denture Deed dated 24th April, 2008 and instrument of appointment dated 11th March, 2016, to take such steps as may be necessary to realize the assets of the defendant with a view to paying its outstanding to the 1st plaintiff.
(ii) A declaration that the 2nd plaintiff being appointed a Receiver of the defendant or any person holding in trust for him have rights, powers or authority to enter into or remain in possession or in any manner whatsoever in the property of the defendant at Oyo State Small Scale Industries Complex Old NTC Road, Iyaganku, Ibadan pending the conclusion of the receivership.
(iii) An order of injunction restraining the defendant, its privies agents or any person claiming under or in trust for them from interfering, harassing or disturbing, frustrating or taking any steps towards interfering directly or indirectly obstructing the 2nd plaintiff or his authorized representatives from doing anything that would prevent the Receiver from performing his lawful duties as Receiver of the defendant or barring him from taking possession of the said property pledged as security of the plaintiff.
(iv) An order directing the Commissioner of Police, Oyo State Command and the Iyaganku Divisional Police Officer, their deputies and officers attached to them to assist the 2nd plaintiff in the exercise of his powers and the performance of his duties as the Receiver of the aforesaid defendant’s asset pledged as security for the facility granted him by the first plaintiff.
And for such further order or orders as this Honourable Court may deem fit to make in the circumstances.”

The respondents’ action was filed in the lower Court on 27/06/2016. The appellant filed its counter-affidavit and written address in opposition to the originating summons on 10/10/2016. And 08/11/2016 the appellant proceeded to file a motion on notice in which it sought three principal prayers and an omnibus relief.

The appellant’s motion on notice was supported with an affidavit of 36 paragraphs, exhibits and a written address. In opposition thereto, the respondents filed a counter-affidavit of 8 paragraphs by which they tendered many exhibits and it was also supported with a written address.

After the adoption by the parties of their respective processes, the trial Court delivered a reserved ruling on the 15th day of February, 2017 in which it refused the application and same was struck out. This appeal is against the said decision. The appellant filed its notice of appeal on 15/02/2017, and which notice of appeal was amended by an order of this Court. The appeal was heard on the amended notice of appeal filed on 12/04/2019 but deemed as properly filed on 09/11/2020; appellant’s amended brief filed 12/04/2019 and also deemed as filed on 09/11/2020; and the further amended respondents’ brief filed on 25/10/2021.

The learned counsel for the appellant raised three issues for determination as follows:
(i) Whether from all the circumstances of this case, the refusal to grant the Appellant’s application dated the 8th day of November, 2016, did not occasion a denial of fair hearing (grounds 1 and 3).
(ii) Whether the ruling of the learned trial Judge has the attributes of a Court decision. (ground 2).
(iii) Whether the reception and reliance on the Respondents’ counter-affidavit did not deny the Appellant the right to a reply. (ground 4).”

The learned counsel who settled the respondents’ further amended brief. H. S. Adebayo Esq. also identified three issues which he framed as follows:
“(i) Whether the trial Court refusal to grant the Appellant/Applicant’s application dated 8th November, 2016 on the ground inter alia that the application amount to another suit in itself, amount to a denial of fair hearing? (Distilled from grounds 1 and 3).
(ii) Whether the ruling delivered by the trial Court on 15th February, 2017 has the attributes of a Court decision. (Distilled from ground 2).
(iii) Whether the consideration given the Counter-Affidavit filed by the respondents when out of time is beyond the discretionary power of the Honourable Court? (Distilled from ground 4).”

Emeka Ozoani, Esq., (now SAN) who settled the appellants’ amended brief, argued all his issues together. I adopt the issues as distilled by the learned counsel for the appellant and I shall also treat and resolve the issues together.

Learned counsel contended, inter alia, as follows: “Under corporate law, the condition precedent upon which the Court assumes jurisdiction in receivership is the existence or otherwise of an outstanding borrowed principal sum or interest. Refer CERAMIC MANUFACTURING (NIG) PLC V. N.I.D.B. (1999) 11 NWLR (PT. 627) 383. The appointment of a receiver, often referred to as equitable execution, is an equitable relief. By the appointment, the company neither loses its legal personality nor its title to the goods in receivership. See INTERCONTRACTORS (NIG) LTD V. U.A.C. (1998) 2 NWLR (PT. 76) 313; INTERCONTRACTORS (NIG) LTD V. NATIONAL PROVIDENT FUND MANAGEMENT BOARD (1988) 2 NWLR (PT. 76) 280.”

The learned counsel proceeded to reproduce the relief sought by the respondents in their originating summons and grounds upon which the relief had been predicated. And after making copious references to the depositions in the affidavit in support of its motion on notice, counsel contended and urged this Court to hold that “the ruling of the trial Federal High Court was a denial of fair hearing”.

Learned counsel also argued that “the ruling of the trial Federal High Court in issue is devoid of the constituent of a Court decision”. And on what the constituents of a good decision are, the learned counsel referred the Court to the cases of Mogaji v. Odofin (1974) 4 SC 91, Ojogbue v. Nnubia (1972) 1 NWLR (Pt. 2) 226, Oro v. Falade (1995) 5 NWLR (Pt. 396) 385 and Olomosola v. Oloriawo (2002) 2 NWLR (Pt. 750) 113.

Counsel for the appellant finally contended that, having regard to the facts of the motion on notice, “the learned trial judge ought to have adjourned the motion to enable the respondents comply with the Rules of Court and further to afford the appellant the opportunity to respond to the counter affidavit before arriving at its decision” and that “These acts undoubtedly operated on the mind of the Court which led to a gross miscarriage of justice and a denial of fair hearing”.

In response, the learned counsel for the respondents relied on the cases of Gbadamosi v. Dairo (2007) 1 SCNJ 444, Magaji v. Nig. Army (2008) 8 NWLR (Pt. 1089) 338 and Tetrazzi Foods Ltd v. Abbacon Inv. Ltd (2015) LPELR – 25007 and argued that a party complaining of denial of fair hearing “owes the duty and bears the legal burden of demonstrating from the record of such proceedings, how the right was denied or breached”. On the meaning of breach or lack of fair hearing, learned counsel for the respondents referred to the cases of Orugbo v. Una (2002) 16 NWLR (Pt. 792) 175 and Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423.

Learned counsel submitted that since both parties were given equal opportunities to present their case on the appellant’s motion on notice, the appellant’s complaint has no foundation.

The respondents’ argued that judgment writing depends on the peculiar and personal dexterity of the Judge who writes the judgment. In support of this, counsel cited the case of Usiobaifo & Ors v. Usiobaifo & Ors. (2005) LPELR – 3428 (SC). Counsel further argued that for the appellant to succeed in its complaint that “the ruling lacks the standard attribute of a legal judgment has the burden of proving that he suffered a miscarriage of justice”. To support this argument, learned cited and relied on the cases of Rivers Vegetable Oil Co. Ltd. v. Egbukole (2009) LPELR – 8379; Nigeria Custom Service Board v. Echy (Nig) Ltd. (2017) LPELR – 42891 and Babayo & Anor v. Reg. Trustees of the United Methodist Church & Anor (2019) LPELR – 49278 (CA).

Learned counsel finally contended that the trial Court properly exercised its discretion by asking the respondents to pay the default fee and which was duly paid by the respondents.

In the appellant’s motion on notice, filed on 08/11/2016, it sought the following three principal prayers, to which it added the omnibus relief, as follows:
“1. AN ORDER of this Honourable Court seeking LEAVE to direct the plaintiffs/Respondents to furnish the Defendant/Applicant her comprehensive detailed statement of accounts domiciled with the 1st plaintiff/Respondent with accounts numbers – 3020999204 and 2006094416 from 2005 till the time of filing this suit.
2. AN ORDER of this Honourable Court seeking LEAVE to direct the plaintiffs/Respondents to furnish the Defendant/Applicant a comprehensive detailed statement of accounts from 2005 till the time of filing this suit opened and operated by the 1st plaintiff/Respondent in the name of ZANS FOODS & BEVERAGES LIMITED, in accounts number 3065421843 and 2018670736 which was opened without the knowledge, authority and mandate of the Defendant/Applicant.
3. AN ORDER directing the 1st plaintiff/Respondent to furnish the Defendant/Applicant with the mandate, cards and forms upon which accounts number 3065421843 and 2018670736 which was opened without the knowledge, authority and mandate of the Defendant/Applicant.
4. AND FOR SUCH Order or further orders that this Honourable Court may deem fit to make to give effect to the above prayer.”

The appellant anchored its prayers on the following grounds:
“1. That this application has become necessary for the determination of the comprehensive detailed statement of accounts by a forensic expert for proper accounting, auditing and analysis.
2. That the comprehensive detailed statement of accounts of the Defendant/Applicant has become necessary in the circumstances so as to enable this Honourable Court in resolving all issues or matters in controversy between the parties so that same can be effectively and effectually determined by this Honourable Court.
3. That it will enable the Defendant/Applicant to determine the real status of her financial statement of accounts opened and operated by the 1st plaintiff/Respondent.
4. That grant of this application will enable the Defendant/Applicant to situate her defence in this suit in the interest of fair hearing.
5. That it will meet the interest of justice if this application is granted in the interest of justice and fair hearing.”

As can be seen from the appellant’s prayers and grounds, reproduced above, these claims, when juxtaposed with the relief and grounds in the respondent’s originating summons, constitute an independent cause of action, even if it was only between the appellant and the 1st respondent and to which the 2nd respondent – an alleged appointed Receiver of the appellant should not even be a party. The trial Court was, therefore, roundly right in holding that “The application is diversionary in nature”. The appellant’s motion for the prayers sought therein was reprehensible because the success or otherwise of the respondents’ originating summons was evidently not dependent on the detailed statements of accounts identified as Account Numbers: 3020999204 and 2006094416, as the questions raised in the originating summons did not require the detailed statements of these said two accounts for the Court to answer them; and especially bearing in mind the issues raised in the respondents’ learned counsel’s written address in support of the originating summons and the appellant’s written response thereto.

To say the least in this matter, the appellant’s loud complaint of denial of its right to fair hearing has no factual or legal foundation, as the mere fact that the decision of the trial Court was not in its favour does not mean that it was denied a fair hearing. After all, a Court’s decision cannot be reasonably expected to favour both parties always.
The law, as it relates to fair hearing, is that it is an indispensable requirement of justice that the judex or adjudicating authority should be fair and just, and must hear both sides by giving them ample opportunity to present their respective cases. See Union Bank of Nigeria Ltd V. Benjamin Nwaokolo (1995) 6 NWLR (Pt. 400) 127, Thomas Eniyan Olumesan v. Ayodele Ogundepo (1996) 2 NWLR (Pt. 433) 628, Godwin Ekiyor v. Chief Furukama Bomor (1997) 9 NWLR (Pt. 519) 1 and Simon Ezechukwu & Anor v. I.O.C. Onwuka (2006) 2 NWLR (Pt. 963) 151.

In this case, the appellant filed a motion on notice which was supported with an affidavit and a written address on 08/11/2016. On 23/11/2016, the respondents filed their counter-affidavit and a written address in opposition to the appellant’s motion on notice. And on 25/01/2017, when both the respondents’ originating summons and the appellant’s motion on notice were to be heard by the trial Court, the learned counsel for the appellant insisted that his motion on notice should take precedence over the respondents’ originating summons. For the avoidance of any doubt, the record of the proceedings in the trial Court on 25/01/2017 is hereby fully reproduced:
“CASE CALLED UP
1st Plaintiff absent.
2nd Plaintiff present.
Defendant present.
Mayowa Adeyemo for the Plaintiff.
Godwin Eluu for the defendant.
DEFENDANT COUNSEL: The matter is for the hearing of our Motion on Notice dated 8-11-2016 and my learned friend has filed a Counter Affidavit in reply.

PLAINTIFF COUNSEL: The originating processes are still pending before the Court and that is also ripe for hearing.
THE COURT: Have you filed your reply to the originating summons Mr. Godwin?
DEFENDANT COUNSEL: I also have a little observation in response to the counter-affidavit. The said counter-affidavit was filed on 8/11/16.
THE COURT: Move your Application and if the counter-affidavit is not competent then raise it.
DEFENDANT COUNSEL: We intend to move the motion dated 8/11/2016. It is a motion on Notice brought by the orders on the face of the application and under the inherent jurisdiction of this Court. Praying for the reliefs on the face of the application.
In support of the Application is 36 paragraph affidavit together with 14 exhibits. We have also filed a Written Address dated 8/11/2016 and we rely on all the depositions and the exhibits therein. We adopt the Written Address as our argument in this case.
Counter-Affidavit was filed in response to our Application. There Counter-Affidavit dated 24/11/2016 is out of time for nine days and there is no application regularizing the Counter-Affidavit. We urge the Court to discountenance the Counter Affidavit.
PLAINTIFF COUNSEL: We filed our Counter-Affidavit dated 24/11/2016 deposed to by Babajide Olutope. We have also filed our Written Address and we adopt it as our argument in this case.
On the issue of the Counter-Affidavit being out of time, I am not sure of the date we were served.
THE COURT: Let us confirm from the records of the Court. You were served on the 8/11/2016 and you filed on the 24/11/2016. So how many days are you in default?
PLAINTIFF COUNSEL: That is nine days and we are ready to pay for the default.
THE COURT: Go and pay your default fees and file the evidence of payment move your counter.
PLAINTIFF COUNSEL: We move in terms of the Counter-Affidavit.
THE COURT: I will have to consider my ruling on this Motion on Notice first. If I don’t see evidence of your default payment I am going to discountenance your Counter Affidavit.
Counsel agreed on 15/02/2017.
THE COURT: Case Adjourned till 15th February, 2017 for ruling.
SIGNED
JUSTICE N. AYO-EMMANUEL
25/01/2017.”

As can be seen from the record of the proceedings of the trial Court, reproduced above, the trial Court wanted to take the originating summons filed by the respondents and the appellant’s motion on notice “together” but the appellant’s counsel informed the Court that he had “little observation” because the respondents’ counter-affidavit “dated 24-11-2016 is out of time for nine days and there is no application regularizing the counter-affidavit” and he urged the Court “to discountenance the counter-affidavit”. Upon the trial Court confirming that the counter affidavit was actually filed out of time, by nine days, it ordered the respondents to “Go and pay your default fee and file evidence of payment”. The appellant did not say that it would file any further affidavit in support of its motion on notice.

Before adjourning the appellant’s motion on notice for ruling on “15-02-2017”, which date was agreed on by the learned counsel to the contending parties, the learned trial judge, Hon. Justice N. Ayo-Emmanuel, specifically stated as follows:
“If I don’t see evidence of your default payment. I am going to discountenance your Counter Affidavit.”

The learned trial judge proceeded to deliver the ruling on 15/02/2017 in which His Lordship made oblique reference to the respondents’ counter-affidavit. By proceeding to render its ruling on 15/02/2017 and making reference to the respondents’ counter-affidavit there is a presumption that the respondents had paid the default fee and the trial Court had evidence of the payment of the said default fee. The appellant’s complaint, which is the basis for its issue 3, has no factual or legal justification.

The mere fact that the trial Court, in its experience and wisdom, decided to hear the appellant’s motion on notice, upon the condition that the respondents’ counter-affidavit would not be countenanced by the Court if there was no evidence before it that the default fee had been paid, did not amount to a breach of the appellant’s right to fair hearing. This is because, the mere fact of fast tracking a cause or matter, in a speedy manner, by a Court of law, does not necessarily affect a person’s or a party’s right to fair hearing. See Barrister, Ismaeel Ahmed v. Alhaji Nasiru Ahmed & Ors (2013) 15 NWLR (Pt. 1377) 274 at 338 – 339, per Chukwuma-Eneh, JSC.

The appellant has also complained bitterly that the ruling of the trial Court does not have “the attributes of a Court decision”.

I agree with the learned counsel for the appellant, that in the case of Chief Adekunle Agbakin Oro & 6 Ors v. Joseph Akanbi Falade & 3 Ors (1995) 5 NWLR (Pt. 396) 385 at 407 – 408, per Ogwuegbu, JSC; it was held as follows:
“Every judge has his own style of writing judgments. In my view, the judgment of learned trial Judge in this case contains the constituent facts of a good judgment which includes the issues or questions to be decided, the essential facts, namely, the case of each party and the evidence, or, in appeals, the argument in support of each; the resolution of the issues of fact and of law, the conclusion or the general inference from the facts and the law as resolved, the verdict and the terminal and consequential orders.”
The decision referred to above, notwithstanding, it should be borne in mind that the art of writing of a ruling or a judgment is a matter of style and there is no well-set template for determining whether a decision should be set aside or not for noncompliance.

One thing that is certain is that there are judicially recognized instances where a decision or judgment can be set aside on appeal. Some of the recognized conditions for setting aside a decision are:
1. When the Court is without jurisdiction to entertain the action, case, cause or matter. See Kofi Fortie Odikro of Marban v. Barima Kwabena Seifah, Kenyasehene (1958) 2 WLR 57; (1958) 1 All ER 1289; Y. A. Lawal v. Chief Yakubu & Dawodu Anor (1972) 8 – 9 SC 83; Augustine Oyubu v. Francis Akpobarejo (1998) 4 NWLR (Pt. 546) 422, NEN Ltd. & Anor. v. Boniface Asiogu (2008) 14 NWLR (Pt. 1108) 582.
2. Where the judgment or decision is tainted with fraud. See African Continental Bank Plc v. Losada (Nig.) Ltd (1995) 7 NWLR (Pt. 405) 26; S. O. Ntuks & Ors. V. Nigerian Ports Authority (2007) 13 NWLR (Pt. 1051) 392.
3. Where the decision or judgment is fundamentally defective or invalid for sundry reasons. See Obimonure v. Erinosho (1966) 2 SCNLR 228, Skenconsult (Nig.) Ltd. V. Godwin Sekondy Ukey (1981) 1 SC 6, Salami Odofin & Ors V. Abraham Olabanji & Anor (1996) 3 NWLR (Pt. 435) 126, Alhaji Taofeek Alao v. African Continental Bank Ltd (2000) 2 SCQR 1067; (2000) 9 NWLR (Pt. 672) 264, Ichie Josiah Madu v. Humphrey Mbakwe (2008) 10 NWLR (Pt. 1095) 293 and All Progressives Congress v. Engr. George T. A. Nduul & 2 Ors. (2018) 2 NWLR (Pt. 1602) 1.

Since there are reasons for which a decision or judgment may be set aside, the facts and circumstances will determine whether or not a decision or judgment should be set aside. One thing is, however, certain and it is that not every error committed by a Judge that will result in his decision or judgment being upturned or set aside on an appeal. For an error committed by a learned trial judge to warrant his decision or judgment to be set aside or upturned, such error must be substantial and it must have occasioned a miscarriage of justice. See Clement Chukwujekwu v. Alhaji Abdullahi Olalere (1992) 2 NWLR (Pt. 221) 86, Chief Ndarake Akpan v. Chief Udokang Umo Otong (1996) 10 NWLR (Pt. 476) 108, Taofik Adesheinde Oyefolu v. Abayomi Adeyosola Durosinmi (2001) 16 NWLR (Pt. 738) 1, Mohammed Oladapo Ojengbede v. M. O. Esan (2001) 18 NWLR (Pt. 746) 771, Alhaji Mohammed Abubakar v. Bebeji Oil & Allied Products Ltd & 2 Ors (2007) 18 NWLR (Pt.1066) 319, Tsokwa Motors (Nig.) Ltd V. United Bank for Africa Plc (2008) 2 NWLR (Pt.1071) 347 and Oseni Omomeji & Ors v. James Kolawole & Ors (2008) 14 NWLR (Pt. 1106) 180.

In this case, the alleged failure by the trial Court to align its decision with the format prescribed in the cases relied upon by the appellant did not occasion, and has not been shown to occasion, any miscarriage of justice and it should not be any ground or reason to disturb the decision of the trial Court.

I think that I have given sufficiently good and substantial reasons to enable me to resolve all the three issues raised in this appeal against the appellant. For all the reasons given in this judgment, all the issues identified in the appeal are hereby resolved in favour of the respondents and against the appellant.

Having resolved all the issues against the appellant, there is no merit in this appeal. Accordingly, the appeal is hereby dismissed for being bereft of any merit.

The decision of the trial Court delivered on 15/02/2017, whereby the appellant’s motion on notice filed on 08/11/2016 was refused, is hereby affirmed.

Since the appellant has unreasonably delayed the just hearing and determination of the respondents’ originating summons, by its avoidable motion on notice and this appeal, the sum of N500,000.00 (Five hundred thousand naira only) is hereby awarded as costs in favour of the respondents and against the appellant.

YARGATA BYENCHIT NIMPAR, J.C.A.: I read in advance the judgment of my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, PJCA just delivered. I agree with him that this appeal is unmeritorious and therefore, should be dismissed. The Appellant challenged the trial Court’s ruling delivered on February, 2017 on the ground that the refusal to grant the Appellant’s application dated 8th day of November, 2016 is denial of fair fearing.

The principle of fair hearing is Constitutionally guaranteed in Section 36 of the 1999 Constitution, and no doubt, it is fundamental to the administration of justice. The Court is required to conduct trial or hearing of a case with all fairness to both parties to the suit and without bias or partiality in favour of or against either party.
It is noteworthy that a complaint of breach of fair hearing is usually against the Court and the question is whether the parties before the Court were afforded equal opportunity to fully ventilate their grievances. See the cases of PETERS PAM & ANOR V. MOHAMMED & ANOR (2008) 5-6 SC (PT.1) 83, DEDUWA V. OKORODUDU (1976) NMLR 236 AT 246 and OKANLAWON V. STATE (2015) LPELR-24838(SC).
The whole essence of fair hearing, which is coterminous with fair trial, connotes giving parties to any proceedings, be it judicial or otherwise, the opportunity to present their case. In the instant case, the Appellant filed an application, the Respondent filed their counter affidavit in response to the Appellant’s application thereafter, the trial Court delivered it ruling by refusing to grant the Appellant’s application on the grounds that the success or otherwise of the Respondent’s Originating summons was not dependent on the detailed statements of accounts required by the Appellant in his application From the records of appeal, the Appellant’s complaint of denial of fair hearing is without legal foundation because sufficient opportunity was given to the Appellant to ventilate its case and fair hearing is not synonymous with correctness of a decision but centers on the cardinal principle that a fair-minded person who watched the proceedings should conclude that the Court was fair in apportioning justice to parties. See NWANEGBO V. OLAWOLE (2011) 37 WRN 101, KIM V. STATE (1992) 4 NWLR (PT. 2331), FRN V. AKUBUEZE (2010) 17 NWLR (PT. 1223) 525, NEWSWATCH COMM. LTD. V. ATTA (2006) 12 NWLR (PT. 993) 144, ADENIYI V. GOV. COUNCIL OF YABATECH (1993) LPELR-128(SC) and APC V. DICKSON & ORS (2015) LPELR-40469(CA).

I am therefore in full agreement with the lead judgment of my learned brother MOORE ASEIMO ABRAHAM ADUMEIN, PJCA that the appeal is unmeritorious. I abide by the consequential order in respect of costs.

FOLASADE AYODEJI OJO, J.C.A.: I have had the benefit to read in advance a draft of the lead judgment just delivered by my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA.

The case before the lower Court was commenced vide an Originating Summons by the Respondents as Plaintiffs. The Appellant joined issues by filing a Counter-Affidavit and Written Address in opposition to the originating summons and went on to file an application wherein it alleged that some accounts domiciled with 1st Respondent in its (Appellant’s) name were opened without its knowledge. The Appellant sought amongst others, orders of Court directing the 1st Respondent to furnish it with documents in relation to the said account. The lower Court refused the application.

The Appellant has argued before us that the refusal of the application occasioned a breach of its right to fair hearing.

It is trite that the principle of the right to fair hearing, just like justice itself, operates for the benefit of all parties before the Court. It does not avail only one of the parties. The principle of fair hearing is therefore not a one way traffic. The process of fair hearing is a two-edged sword and it cuts both ways – Appellants have a right to a fair hearing and fair hearing implies also that the Respondents as Plaintiffs are entitled to have their case determined within a reasonable time. The right of the two parties must be balanced, one cannot be sacrificed for the other. In applying the principles of fair hearing therefore, the Court is called upon to balance the scale of justice between the competing interests of the parties so as to do justice between them. The Court has a duty to guard against an attempt by any of parties to make an ass of the law and its rules of procedure. See GOVERNOR, IMO VS. E.F. NETWORK (NIG) LIMITED (2019) 9 NWLR (PT. 1676)95, UKWUYOK VS. OGBULU (2019) 15 NWLR (PT. 1695)308 AND MFA YS. INONGHA (2014) 4 NWLR (RT. 1397)343.

I have given a careful consideration to the affidavit evidence on record and the entire proceedings at the lower Court and I do not find any reason to agree with the Appellant that it was denied fair hearing. There is no basis at all for the allegation. It was one made in the air with nothing to back it up.

I completely agree with my learned brother that this appeal is devoid of merit and should be dismissed. I too dismiss it and abide by all the consequential orders made therein including the order as to costs.

Appearances:

EMEKA OZOANI (SAN) with him, Godwin Eluu, Esq. For Appellant(s)

JAMES UJAH, Esq. For Respondent(s)