FIRST OPTION MOTORS LTD & ANOR v. OGUN STATE GOVT & ORS (2022)

FIRST OPTION MOTORS LTD & ANOR v. OGUN STATE GOVT & ORS

(2022)LCN/16680(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Friday, April 08, 2022

CA/IB/438/2018

Before Our Lordships:

Yargata Byenchit Nimpar Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Between

1. FIRST OPTION MOTORS LIMITED 2. ENGINEER WALI OLAYIWOLA AKANDE APPELANT(S)

And

1. OGUN STATE GOVERNMENT 2. ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE, OGUN STATE 3. BUREAU OF LANDS AND SURVEY RESPONDENT(S)

RATIO

THE FUNDAMENTAL PRINCIPLE AND REQUIREMENT OF LAW THAT PARTIES ARE ENTITLED TO BE HEARD ON THE CASES PUT FORWARD BY THEM BEFORE THE COURT

Bringing it near home, Section 36(1) of the 1999 Constitution provides thus:
36. (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.
The simple principle established by the provision which has been interpreted in a plethora of cases is that parties must be heard. See AGBAHOMOVO & ANOR V. EDUYEGBE & ORS (1999) LPELR-224(SC) wherein the apex Court held thusly:
“It is conceded that it is a fundamental principle and requirement of law that parties are entitled to be heard on the cases put forward by them before the Court. Thus, the case of Nwokoro & Ors v. Onuma & Anor (1990) 3 NWLR (Pt.136) 22; (1990) 5 SCNJ 93 in which the Court of Appeal considered the appellants’ case on the original brief of argument duly filed in Court, this Court in allowing the appeal on the ground that they were not given a fair hearing and/or hearing at all (per Karibi- Whyte, J.S.C), observed at pages 32-33, H-A and page 100 as follows: “A party is entitled as of right to the consideration of his case before the Court. Thus, where the Court has relied on the case abandoned by the litigant in the determination of his grievance before it, it will not only be a misuse of expression that he has been give a fair hearing, it will also be more accurate to say that he was not heard at all.” Nnamani, J.S.C., of blessed memory, in his contribution at page 35 and page 103 respectively of the report added: “The right to be heard is so fundamental a principle of our adjudicatory process that it cannot be compromised on any ground.” Per ONU, J.S.C. PER NIMPAR, J.C.A.

THE PRINCIPLE OF FAIR HEARING WITH AD-HOC DISCIPLINARY COMMITTEES

The Constitutional provision does not only apply to Courts of law but also adhoc bodies with the mandate to determine the rights of people concerning any subject matter. See AROBIEKE V. NELMC (2017) LPELR-43461(SC) wherein the apex Court held thusly:
“… but once a body of persons such as the AD-HOC disciplinary committee or by whatever name called are vested with authority to hear and determine particular issues or dispute either by consent of the disputants or by an order of Court, or by provisions of a statue, such a body will be required to carry out its functions with that fairness and impartiality which the rules of natural justice dictate. … I dare say basic that the rules of fair hearing – natural justice can neither be compromised nor waived. The reason is that any infraction to that basic rule of fair hearing should automatically bring to naught whatever had been done in the process of the inquires embarked upon by the panel, judicial or administrative. See Federal Polytechnic Mubi v T.L.M Yusuf (1991) 1 NWLR (Pt. 165) page 81 at 100, Olaniyan and Ors v University of Lagos & Anor (1985) 2 NWLR (Pt. 80) 25.” Per PETER-ODILI, J.S.C.
It is therefore a fundamental error to say, a title awarding body is not under a duty to give the Appellants a hearing before their interest in the land in issue is affected, it is wrong, such decision is perverse and the breach of fair hearing has a fundamental effect on the proceedings so conducted behind the parties. See MFA & ANOR V. INONGHA (2014) LPELR-22010(SC) wherein the apex Court held thusly:
“It has been held that the Constitutional right to fair hearing is synonymous with the common law principles of natural justice. See 7-UP Bottling Co. Ltd. V. Abiola & Sons Ltd (1995) 3 SCNJ 37 and Deduwa V. Okorodudu (1976) 1 NMLR 237 AT 246. It is also well settled that any proceedings conducted in breach of a party’s right to fair hearing, no matter how well conducted would be rendered a nullity. See Tsokwa Motors (Nig.) Ltd V. U.B.A. Plc. (2008) All FWLR (pt. 403) 1240 @ 1255 A-B, Adigun v. A.G. Oyo State (1987) 1 NWLR (pt. 53) 674, Okafor v. A.G. Anambra State (1991) 3 NWLR (pt.200) 59, Leaders & Co. Ltd. V. Bamaiyi (2010) 18 NWLR (Pt. 1225) 329. It was held in the recent decision of this Court in: Abubakar Audu V. FRN (2013) 53 NSCOR 456 @ 469: “The law is indeed well settled that fair hearing within the meaning of Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, means a trial or hearing conducted according to all legal rules formulated to ensure that justice is done to the parties. It requires the observation or observance of the twin pillars of the rules of natural justice, namely, audi alteram partem and nemo judex in causa sua. These rules, the obligation to hear the other side of a dispute or the right of a party in dispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground. See Nwokoro V. Onuma (1990) 3 NWLR (Pt.136) 22. The effect of a denial of fair hearing is trite in law. In other words once there is a breach of the right of fair hearing, the whole proceeding in the course of which the breach occurred and the decision arrived at by the Court, become a nullity.” Per KEKERE-EKUN, J.S.C. PER NIMPAR, J.C.A.

THE EFFECT OF BREACH OF FUNDAMENTAL RIGHT TO FAIR HEARING

Breach of right to fair hearing has a serious effect as held in the case of ARIJE V. ARIJE & ORS (2018) LPELR-44193(SC) and DINGYADI & ANOR V. INEC & ORS (2010) LPELR-40142(SC) wherein the apex Court held thusly:
“The law is trite that the effect of breach of the right of fair hearing in any proceedings of Court as happened in the instant case rendered the proceedings including the judgment of 10th March, 2010 dismissing the appeal, a complete nullity. See Rasaki Salu v. Taiwo Egeibon (1994) 6 S.C.N.J. 223 also reported in (1994) 6 N.W.L.R. (Pt. 348) 23 at 44 Adio JSC (of blessed memory) said – “It also had to be remembered that the denial of a 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 also Adigun v. Attorney-General of Oyo State (1987) 1 N.W.L.R. (Pt. 53) 678. All Courts including this Court are bound to observe the rule of natural justice in all their proceedings including proceedings in Chambers where parties and their Counsel are not present. This cannot be achieved unless and until all parties are heard or given the opportunity of being heard. See Alhaji Yekini Otapo v. Chief R. O. Sunmonu & Others. (1987) 5 S.C.N.J. 57 also reported in (1987) 2 N.W.L.R. (Pt. 58) 587.” Per MOHAMMED, J.S.C.
Consequently, a fall out of the beach of fair hearing is the nullification of the recommendation and acceptance of same which resulted in the revocation of the Appellants title, this was arrived at without a hearing. It is hereby set aside because it is null and void. PER NIMPAR, J.C.A.

WHETHER OR NOT THE BURDEN OF PROOF IN CRIMINAL CASES SHIFTS FROM THE PROSECUTOR TO THE ACCUSED PERSON

Admittedly, the burden of proof of a crime does not shift because it is static. See ANYASODOR V. STATE (2018) LPELR-43729(SC) wherein the apex Court held thusly:
“It is trite law that the burden of proof in criminal cases is always on the prosecution which must prove all the elements of the offence charged in order to secure conviction of the accused person. See Section 138(1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 2004 (as amended). See also the cases of Duru v. The State (1993)3 NWLR (pt.281) 290, Amadi vs Federal Republic of Nigeria (2008) 12 SC (pt. III) 55 and Abdullahi Vs State (2008) 5-6 SC (pt. 1) 1. The prosecution also has the onus to prove the guilt of the accused person beyond reasonable doubt through credible and reliable evidence in proof of the case against the accused person. The burden therefore, does not shift.” Per SANUSI, J.S.C. PER NIMPAR, J.C.A.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Ogun State sitting in Abeokuta and delivered by HON. JUSTICE O. O. MAJEKODUNMI on the 5th July, 2018 in Suit No.: AB/83/2016 wherein the lower Court entered judgment in favour of the Respondents and dismissed the Appellants’ claims in its entirety. The Appellants dissatisfied with the decision, filed a Notice of Appeal dated 20th September, 2018 setting out 10 grounds of appeal.

Facts leading to this appeal are straight forward and amenable to brief summary. The subject matter of the Appellant’s suit is in respect of the revocation of a Certificate of Occupancy No.: 0033691 dated 14th May, 2011 and registered as No. 78 at page 78 in Volume 759 of the Register of titles of the Ogun State lands registry (Exhibit C2 and Exhibit D6). It is the case of the Appellants as Claimants that the land in dispute was originally jointly purchased from the families of Semolu, Okinrende, Olowoshebi and Sadiku who were the original owners of the land. Sometime in 2003 after the sale, a joint receipt was issued to the 2nd Appellant who in turn transferred his interest in the said land to the 1st Appellant at its incorporation, as 2nd Appellant’s Equity contribution. The Appellants also contended that the original owners of the land in dispute were not at any time given notice nor informed that their lands had been compulsorily acquired by government because no compensation was paid to them. The Appellants averred that they became aware of the acquisition at the point where the 2nd Appellant sought to obtain a legal title to the land. Having become aware of the acquisition of the land in dispute, the 1st Appellant applied for accommodation within the industrial window for the area and paid the requisite fees for the processing of its Certificate of Occupancy. A Certificate of Occupancy was issued in favour of the Appellants but the Judicial Commission of Inquiry into Allocation of Lands recommended that the said Certificate of Occupancy be revoked having discovered serious irregularities in the application and issuance process.

The contention of the Appellants at the High Court was that the Commission of Inquiry violated the Appellants’ right to fair hearing and that the said Commission exceeded its jurisdiction, hence their reason for approaching the Court to quash the recommendations of the Commission of Inquiry as well as the decision to cancel the 1st Appellant statutory right of occupancy by the Respondents based on the Report of the Commission of Inquiry.

On the other hand, the case of the Respondent is that the land in dispute was acquired sometimes in 2004 for public purposes having served the requisite Notice of Acquisition to the land owners and compensation paid thereafter. The 1st Appellant contended that he approached the office of the 3rd Respondent for allocation of the land in dispute 2010.

During trial, the Appellants called 4 witnesses and tendered 9 Exhibits while the Respondents called a sole witness and tendered 4 Exhibits. Thereafter, the trial Court dismissed the Appellants’ claims in its entirety. The Appellants aggrieved with the said judgment brought the instant appeal.

Pursuant to the rules of the Court, the parties filed and exchange their briefs which were adopted at the hearing of the Appeal. The Appellants’ brief settled by OMONIYI JOHNSON ODEYEMI, ESQ., is dated 6th day of March, 2020, filed on 30th April, 2020 but deemed on the 3rd November, 2021. The Appellants distilled 3 issues for determination as follows:
1. Was the learned trial Judge correct in holding that the Commission was not a title declaring body and need not invite all allottees of the government land and properties in its fact mission and was the decision not to invite the 1st Appellant to defend its title in the land, a fair one. (Distilled from grounds 1, 2, 5 and 9)
2. Whether allegation of crime must be prove beyond reasonable doubt. (Distilled from grounds 3 and 4)
3. Whether the trial Court considered appropriately the totality of the evidence of the parties at the trial before arriving at its judgment. (Distilled from grounds 6, 7, 8 and 10)

The Respondent’s brief settled by O. A. ADEJOBI, ESQ., is dated 14th January, 2022 and filed on the same day but deemed on 17th January, 2022. The Respondents adopted issues 1 and 3 raised distilled by the Appellants but formulated another third issue for determination as follows:
1. Whether the Respondents did not prove fraud in the procurement of the Certificate of Occupancy No.: 0033691 dated 14th May, 2011 i.e Exhibit C2/D6

APPELLANTS’ SUBMISSION
ISSUE ONE
Arguing this issue, the Appellants relied on Section 36 of the 1999 Constitution of Nigeria to submits that the Appellants were not given the opportunity to defend the allegations against them before the Commission of Inquiry and it is trite that when a party who is entitled to be heard is denied a hearing before a decision affecting him is made, then by virtue of Section 36 of the 1999 Constitution of Nigeria that decision cannot bind him because he is not given the opportunity of being heard. The Appellants argued that as the trial Judge held, that the Commission was not a title declaring body and need not invite all allotees of the government land and properties in its fact-finding mission, therefore the Appellants submit that the decision of the Commission was perverse because it was not reached as a result of a proper consideration of facts as placed before the Court, particularly the breach to fair hearing.

Predicated on the above, the Appellants argued that from the provision of the Land Use Act, only the High Court has the jurisdiction to determine the Appellants’ rights on the land and not the commission and also the trial Judge failed to properly evaluate the evidence before him particularly Exhibit C7 and C8 which are documents from the Respondents in determining the right of the Appellants from the Commission even after the trial Judge held that the Commission is merely a fact finding body which has no power to determine the rights of any individual.

Relying on Section 28(1) of the Land Use Act, 1978 and the cases of ONONUJU V. ANAMBRA STATE (1998) 11 NWLR (PT. 573) 304, OLATUNJI V. GOVERNOR OF OYO STATE (1995) 5 NWLR (PT. 79) 586, NIGERIA ENGINEERING WORKS LTD V. DENAP LTD (1997) 10 NWLR (PT. 118) 446, IBRAHIM V. JONAID SALIK MOHAMMED (2003) 4 SCM, ALHAJI TENIOLA V. ALHAJI OLOHUNKUN (1999) 5 NWLR (PT. 602) 280 and S.O. ADOLE V. BONIFACE B. GWAR (2008) 8 SCM 18 to submit that the Ogun State Government could not have validly revoked the Appellants statutory right of occupancy over the plots in dispute without a notice of intention to revoke served on the Appellants. The Appellants cited MR. A.O. OSHO & ORS V. FOREIGN FINANCE CORPORATION (1991) 4 NWLR (PT. 184) 157, ADMINISTRATOR ESTATE OF GEN. SANI ABACHA V. SAMUEL DAVID EKA SPIFF & ORS (2009) 3 SCM 1 and GUINNESS NIG LTD V. ENGR. UGWU UDEANI (2004) 14 NWLR (PT. 678) 367.

The Appellants also relied on Section 36 of the 1999 Constitution to submit that the above Section refers to situations where a statutory body determines nothing final and conclusive and where there is provision to make representation to the administering authority before the effective decision is made, therefore concerning the appeal under consideration, the Appellants were not served any notice to appear before the judicial commission of Inquiry. The Appellants referred the Courts to ADIGUN V. A.G. OYO STATE (1987) 1 NWLR (PT. 53) 678, KANO N.A. V. OBIORA (1959) 4 F.C., WAPPAH V. MOURAH (2006) 18 NWLR (PT.) 18, KIM V. THE STATE (1992) 14 NWLR (PT. 233) 17 and A.C.B. PLC V. LOSADA NIG LTD (1995) 7 NWLR (PT. 405) 26. Further on this issue, they submit that having found that the Appellants were not given fair hearing, the trial Court ought to have nullified the entire proceedings and declared the 1st Appellants as rightful holder of the statutory right of occupancy over the land in dispute.

According to the Appellants, the trial Judge held that the Commission of Inquiry is a fact finding Tribunal and not a right finding tribunal yet the Commission determined the rights of the Appellants in their recommendation to the Respondents without giving the Appellants an opportunity to defend themselves and the law is trite that when an administrative Tribunal is to determine whether an officer is guilty of misconduct or breach of the regulations, then a lis inter partes arises and so throw up the necessity for a hearing before deciding and in such a case, the administrative body is acting judicially and the principles of fair hearing binding on judicial bodies would by the same token bind such administrative bodies relied on DISTRICT OFFICER V. QUEEN (1961) SCNLR 83, HART V. MILITARY GOVERNOR OF RIVER STATE (1976) 11 SC 211, LEGAL PRACTITIONER DISCIPLINARY TRIBUNAL V. CHIEF GANI FAWEHINMI (1985) 2 NWLR (PT. 7) 300, OBOT V. CBN (1993) 8 NWLR (PT. 310) 140 and BABA V. N.C.A.T.C (1991) 5 NWLR (PT. 192) 388

On the same score, the Appellants contends that the trial Judge in his findings ought to have found that the Respondents were in breach of the principles of natural justice in their dealings with the Appellants because it is trite that any proceedings where a person is not a party, the decision should not bind the person as held in ADELEKE V. RAJI (2002) 13 NWLR (PT. 783) 142 and ATSER V. GACHI (1997) 6 NWLR (PT. 510) 609. Continuing, the Appellants submits that the effect of failure to observe the rule of natural justice i.e. audi alteram partem by the Commission makes the decision reached null and void ab initio, and is like an order made without jurisdiction as held by the House of Lords in RIDGE V. BALWIN (1963) 2 ALL E.R 66 and U.A.C. V. MCFOY LTD (SUPRA).

In the light of the foregoing, the Appellants argument is that the trial Judge misdirected himself and consequently arrived at a wrong decision when the lower Court held that the 1st Appellant’s file with the Respondents is sufficient for the Commission to arrive at its recommendation and asked “what would the Appellants say to the commission that would be different from what was contained in their file?” Though the Appellants were told that their file has been forwarded to the Commission but the trial Judge failed to understand that the Appellants could not barge on the Commission proceedings without an invitation. Furthermore, the Appellants submits that based on their submission and authorities cited, the Appellants urged the Court to resolve this issue in favour of the Appellants.

ISSUE TWO
In arguing this issue, the Appellants restated the principles of burden and standard of proof in criminal case as provided in Section 138(1) of the Evidence Act, 2011 and argued that the trial Judge implied at page 689 of the record that the failure of the Appellants to file a reply to the statement of defence alleging fraud opens the Appellants to the inference that the allegation of fraud made against them are true, however, there was no admission on the part of the Appellants because the Appellants in their own statement of claim joined issues with the Respondents on the procedure and application which led to the issuance of the certificate of occupancy. That the processing up to the issuance of the certificate of occupancy to the Appellants was done by the Respondents, therefore, since all the Appellants did was the submission of an application for statutory right of occupancy, it will be wrong to allege any fraud against the Appellants and more so, the Respondents have not alleged any forgery of the statutory right of occupancy.

Predicated on above, the Appellants contend that it will be great injustice to the Appellants after the Respondent collected millions of Naira from the Appellants for the processing of the Appellants’ application for allocation of land and subsequent issuance of the Certificate of Occupancy, the Respondents turned around and alleged fraud. The trial Court relied on the argument of the Respondent that the allocation was not done transparently and with diligence and that the administrative process of allocation of land was not duly followed.

The Appellants contends that if there was any irregularity in the process of handling the Appellants’ application for allocation, it is the Respondent that should be blamed and not the Appellant’s and it is trite that he who alleges must prove, this the Respondent failed to do yet the trial Court concluded that the Appellants admitted fraud and the law is also trite that when a plaintiff fails to file a reply to deny an averment in the statement of defence he can lead evidence during trial to deny same. The Appellants urged the Court to resolve this issue in favour of the Appellants.

ISSUE THREE
The Appellants argued that the trial Judge failed to evaluate the issue of the identity of land in dispute because CW3 and CW4 who are the Appellants’ vendors averred that the land in question was never acquired by government and they also tendered their survey plan showing the coordinate of their own land, that Exhibit D1 showed the coordinates of the land acquired which was different from the land in dispute and the Respondents never called any member of the family they acquired the land from. Continuing, the Appellants submits that the acquisition of the said property by the Respondent was further faulted by Exhibit D2-D3 which has the names of the families that were compensated and no representative of the family that sold the land described by the Appellants where included in the list.

According to the Appellants, the trial Court failed to evaluate the additional statement on oath of CW3 when the Court held that the Appellants did not prove their vendor’s root of title even though the matter of root of title was not in contention as the Appellant had no contention with his vendors, therefore the Appellants had no obligation to prove root of title. The Appellants urged the Court to resolve this issue in favour of the Appellants and to allow the appeal and set aside the judgment of the trial Court.

RESPONDENTS’ SUBMISSION
ISSUE ONE
Arguing this issue, the Respondents submit that the law is trite that a certificate of occupancy is only prima facie evidence of title to land and possession of same is not a conclusive proof to the land it relates, consequently, where it is successfully challenged, it can be nullified as held in OTUKPO V. JOHN & ANOR (2012) LPELR-SC.228/2011. The Respondent argued that the Certificate of Occupancy No.: 0033691 was not validly issued as same was fraught with serious irregularities and the registration of a Certificate of Occupancy does not and cannot, cure or validate any irregularities in its procurement, the Respondent relied on OMIYALE V. MACAULAY & ORS (2009) LPELR-SC.132/2003. The Respondents restated the principle of fraud extensively as held in NWANOSIKE & ANOR V. UDENZE & ANOR (2016) LPELR-CA/PH/69/2009 and ALHAJI ISIYAKU YAKUBU V. ALHAJI USMAN JAUROYEL & 2 ORS (2014) 8 SCM 215, to submit that the Respondents have been able to discharge this burden and urge the Court to resolve this issue in favour of the Respondents.

ISSUE TWO
In arguing this issue, the Respondents submit that the Commission of Inquiry was set up by law and it carried out its functions in accordance with and in compliance with the Law establishing it. The Respondents referred the Court to Section 18 of the Commissions of Inquiry Law, Cap Laws of Ogun State, 2006. Continuing, the Respondents contend that on the issue of fair hearing, the Appellants had the opportunity to present there before the Commission, considering that they were aware of the sitting of the Commission but they failed to appear, this was confirmed by the 2nd Appellant’s Statement on Oath when he averred that he was informed by the Director-General of the 3rd Respondent of the fact that the file of the 1st Appellant’s title deed had been forwarded to the Commission. Therefore, the Commission only had recourse to the documents available in the policy file of the Appellants which was in the custody of the 3rd Respondent.

According to the Respondents, the said documents were forwarded by the 1st Appellant in its application to the 3rd Respondent for allocation of the land in dispute and the Commission based its findings and recommendations on the records before it. Furthermore, where all the procedural steps stipulated by law to safeguard and guarantee an Appellant’s right to fair hearing were duly complied with, it cannot be said that the right to fair hearing has been breached. The Respondents relied on ISAH V. STATE (2018) LPELR-CA/S/115C/2017. The Respondents resolved this issue against the Appellants.

ISSUE THREE
The Respondents submits that the lower Court considered the totality of evidence presented and issued raised before arriving at its decision in the judgment and the law is settled that once the Plaintiff is unable to prove his root of title, the consequence is that his case stands dismissed as held in AYANWALE V. ODUSAMI (2011) LPELR-8143(SC) and JAMAICA V. YAKUBU (2018) LPELR-CA/MK/77/2016. Continuing, the Respondents submitted further that the Appellants merely traced their title to the land in dispute to their alleged predecessors but could not establish the latter’s root title, therefore, it is right to submit that the trial Court properly evaluated the evidence. The Respondents urged the Court to resolve this issue in favour of the Respondent, dismiss this appeal and uphold the decision of the trial Court.

RESOLUTION
I have reviewed the Notice of Appeal, the Records of Appeal and the briefs of learned Counsel for the parties and I am inclined to adopt the issues crafted by the Appellants who initiated the appeal, this will allow the Court to fully resolve all issues identified against the judgment. In doing so, the issues distilled by the Respondents would also be resolved.
ISSUE ONE
WAS THE LEARNED TRIAL JUDGE CORRECT IN HOLDING THAT THE COMMISSION WAS NOT A TITLE DECLARING BODY AND NEED NOT INVITE ALL ALLOTTEES OF THE GOVERNMENT LAND AND PROPERTIES IN ITS FACT FINDING MISSION AND WAS THE DECISION NOT TO INVITE THE 1ST APPELLANT TO DEFEND ITS TITLE IN THE LAND, A FAIR ONE?

The challenge here is whether the Appellants were entitled to be given a hearing before their title over the land was revoked. It is a Constitutional and universal principle that parties be heard before their rights are affected one way or the other. Bringing it near home, Section 36(1) of the 1999 Constitution provides thus:
36. (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.
The simple principle established by the provision which has been interpreted in a plethora of cases is that parties must be heard. See AGBAHOMOVO & ANOR V. EDUYEGBE & ORS (1999) LPELR-224(SC) wherein the apex Court held thusly:
“It is conceded that it is a fundamental principle and requirement of law that parties are entitled to be heard on the cases put forward by them before the Court. Thus, the case of Nwokoro & Ors v. Onuma & Anor (1990) 3 NWLR (Pt.136) 22; (1990) 5 SCNJ 93 in which the Court of Appeal considered the appellants’ case on the original brief of argument duly filed in Court, this Court in allowing the appeal on the ground that they were not given a fair hearing and/or hearing at all (per Karibi- Whyte, J.S.C), observed at pages 32-33, H-A and page 100 as follows: “A party is entitled as of right to the consideration of his case before the Court. Thus, where the Court has relied on the case abandoned by the litigant in the determination of his grievance before it, it will not only be a misuse of expression that he has been give a fair hearing, it will also be more accurate to say that he was not heard at all.” Nnamani, J.S.C., of blessed memory, in his contribution at page 35 and page 103 respectively of the report added: “The right to be heard is so fundamental a principle of our adjudicatory process that it cannot be compromised on any ground.” Per ONU, J.S.C.

The Constitutional provision does not only apply to Courts of law but also adhoc bodies with the mandate to determine the rights of people concerning any subject matter. See AROBIEKE V. NELMC (2017) LPELR-43461(SC) wherein the apex Court held thusly:
“… but once a body of persons such as the AD-HOC disciplinary committee or by whatever name called are vested with authority to hear and determine particular issues or dispute either by consent of the disputants or by an order of Court, or by provisions of a statue, such a body will be required to carry out its functions with that fairness and impartiality which the rules of natural justice dictate. … I dare say basic that the rules of fair hearing – natural justice can neither be compromised nor waived. The reason is that any infraction to that basic rule of fair hearing should automatically bring to naught whatever had been done in the process of the inquires embarked upon by the panel, judicial or administrative. See Federal Polytechnic Mubi v T.L.M Yusuf (1991) 1 NWLR (Pt. 165) page 81 at 100, Olaniyan and Ors v University of Lagos & Anor (1985) 2 NWLR (Pt. 80) 25.” Per PETER-ODILI, J.S.C.
It is therefore a fundamental error to say, a title awarding body is not under a duty to give the Appellants a hearing before their interest in the land in issue is affected, it is wrong, such decision is perverse and the breach of fair hearing has a fundamental effect on the proceedings so conducted behind the parties. See MFA & ANOR V. INONGHA (2014) LPELR-22010(SC) wherein the apex Court held thusly:
“It has been held that the Constitutional right to fair hearing is synonymous with the common law principles of natural justice. See 7-UP Bottling Co. Ltd. V. Abiola & Sons Ltd (1995) 3 SCNJ 37 and Deduwa V. Okorodudu (1976) 1 NMLR 237 @ 246. It is also well settled that any proceedings conducted in breach of a party’s right to fair hearing, no matter how well conducted would be rendered a nullity. See Tsokwa Motors (Nig.) Ltd V. U.B.A. Plc. (2008) All FWLR (pt. 403) 1240 @ 1255 A-B, Adigun v. A.G. Oyo State (1987) 1 NWLR (pt. 53) 674, Okafor v. A.G. Anambra State (1991) 3 NWLR (pt.200) 59, Leaders & Co. Ltd. V. Bamaiyi (2010) 18 NWLR (Pt. 1225) 329. It was held in the recent decision of this Court in: Abubakar Audu V. FRN (2013) 53 NSCOR 456 @ 469: “The law is indeed well settled that fair hearing within the meaning of Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, means a trial or hearing conducted according to all legal rules formulated to ensure that justice is done to the parties. It requires the observation or observance of the twin pillars of the rules of natural justice, namely, audi alteram partem and nemo judex in causa sua. These rules, the obligation to hear the other side of a dispute or the right of a party in dispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground. See Nwokoro V. Onuma (1990) 3 NWLR (Pt.136) 22. The effect of a denial of fair hearing is trite in law. In other words once there is a breach of the right of fair hearing, the whole proceeding in the course of which the breach occurred and the decision arrived at by the Court, become a nullity.” Per KEKERE-EKUN, J.S.C.
It is trite that the 1st Respondent is empowered by the Commission of Inquiry Law of Ogun State, particularly Section 18 of the Law to set up Commission of Inquiry to investigate any issue, so the question is not whether the 1st Respondent can set up the Commission of inquiry but that the Commission must act in conformity with the Constitutional and universal demands of giving whoever has interest in the subject a hearing. The argument of the Respondents is that the Commission was merely a fact finding Commission and therefore not bound to adhere to fair hearing rules is misconceived. A fact finding commission must also observe fair hearing rules See JUDICIAL SERVICE COMMISSION OF CROSS RIVER STATE & ANOR V. YOUNG (2013) LPELR-20592(SC).
To further argue that the Commission only had recourse to documents in the title files alone and not any document in the possession of the Appellants, notwithstanding, the Commission could not arrive at such a recommendation without hearing the Appellant because the 1st Respondent acted on the recommendation without calling on the Appellants to respond to the allegations in the recommendation. There was a breach of Appellants’ right to fair hearing.
Looking at the recommendation of the commission of Inquiry Report, Exhibit C8, its recommendation was as follows:
“There is definitely more than meet the eye in this transaction, considering the serious irregularities noted above. For this reason, the Commission recommends that the allocation made to First Options Motors Company Limited and the Certificate of Occupancy issued thereto be cancelled forthwith and physical possession of the land be recovered by Government from the company.”
The Commission breached fundamental principles of fair hearing by making the recommendation without giving the company a hearing. See GYANG & ANOR V. COP LAGOS STATE & ORS (2013) LPELR-21893(SC) wherein the apex Court held thus:
“… in the case of ADIGUN v. ATTORNEY-GENERAL OYO STATE (Supra) …The complaint in the case is that before the “AGIRI COMMISSION” one party …was not at all invited to testify to put their case before the Commission. This was a clear breach of the principle of fair hearing.” Per GALADIMA, J.S.C
And also BOKO V. NUNGWA & ORS (2018) LPELR-45890(CA) wherein the Court held thus:
“… The appeal committee of the 2nd Respondent failed to give the Appellant an opportunity to be heard. Its proceedings and subsequent decision cannot therefore be validated… The proceedings and decision of the said appeal committee therefore amounted to a nullity.” Per OTISI, J.C.A
It was a serious breach of right to fair hearing and the finding of the lower Court that it did breach provisions of the Land Use Act is flawed because it makes it worse that the provisions of the Land Use Act were not in contemplation when the recommendation was made and acted upon by the 1st Respondent.

Breach of right to fair hearing has a serious effect as held in the case of ARIJE V. ARIJE & ORS (2018) LPELR-44193(SC) and DINGYADI & ANOR V. INEC & ORS (2010) LPELR-40142(SC) wherein the apex Court held thusly:
“The law is trite that the effect of breach of the right of fair hearing in any proceedings of Court as happened in the instant case rendered the proceedings including the judgment of 10th March, 2010 dismissing the appeal, a complete nullity. See Rasaki Salu v. Taiwo Egeibon (1994) 6 S.C.N.J. 223 also reported in (1994) 6 N.W.L.R. (Pt. 348) 23 at 44 Adio JSC (of blessed memory) said – “It also had to be remembered that the denial of a 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 also Adigun v. Attorney-General of Oyo State (1987) 1 N.W.L.R. (Pt. 53) 678. All Courts including this Court are bound to observe the rule of natural justice in all their proceedings including proceedings in Chambers where parties and their Counsel are not present. This cannot be achieved unless and until all parties are heard or given the opportunity of being heard. See Alhaji Yekini Otapo v. Chief R. O. Sunmonu & Others. (1987) 5 S.C.N.J. 57 also reported in (1987) 2 N.W.L.R. (Pt. 58) 587.” Per MOHAMMED, J.S.C.
Consequently, a fall out of the beach of fair hearing is the nullification of the recommendation and acceptance of same which resulted in the revocation of the Appellants title, this was arrived at without a hearing. It is hereby set aside because it is null and void.

I resolve issue one in favour of the Appellants.

ISSUE TWO
This issue seeks to know the standard of proof of a crime. It is beyond citing of authorities that it is trite that proof of an allegation of crime is beyond reasonable doubt. See OMOBORIOWO V. AJASIN (1984) 1 SCNLR 108 and ENGINEER GOODNEWS AGBI & ANOR V. CHIEF AUDU OGBEH & ORS (2005) 8 NWLR (PT. 926) 40 wherein the apex Court held thusly:
“… Where, an allegation of crime is made in a civil case, that criminal allegation must be proved beyond reasonable doubt. See Section 138 (1) of the Evidence Act, now Section 135 (1) of the Evidence Act, 2011(as amended) and the cases of Mogaji v. Odofin, (1978) 4 SC 91, Buhari v. Obasanjo (2003) 17 NWLR (Pt. 850) 423and Engr. Mustapha Yunusa Maihaja v. Alhaji Ibrahim Gaidam & Ors. (2018) 4 NWLR (Pt. 1610) 454.”
Also by the provision of Section 138(1) of the Evidence Act, 2011, it gives a hint on how to prove an allegation of crime in a civil suit, it says:
“The question follows whether the claims of the respondents are about commission of crime to require invocation of Section 138(1) of the Evidence Act – and establishing proof beyond reasonable doubt or a civil claim based on the balance of probabilities according to the decision of the trial and lower Courts. Section 138(1) of the Evidence Act stipulates that: “(1) if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. (2) The burden of proving that any person had been guilty of a crime or wrongful act is subject to the provisions of Section 141 of this Act, on the person who asserts it whether the commission of such act is or is not directly in issue in the action. (3) If the prosecution proves that commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the accused.” The emphasis in the section, going by the opening phrase, is the standard of proof in a civil case with element of criminal wrong doing which reads:- “If the commission of a crime by a party to any proceeding is directly in issue in any proceeding”. The Courts had in the interpretation of Section 138(1) made it applicable to where there is specific allegation of a crime so that its commission can properly be said to be a basis or foundation of the claim or defence as the case may be. See Nwobo v. Onoh (1984)1 (SC) 1 Ikoku v. Obi (1862) 1 All NWLR Vol. 1 pt. 1194 at pg 199, Jules v. Ajani (1980) 5-7 SC. 116, Omoboriwo v. Ajasin (1984) 1 SCN LR 108. In the case of Oruboko v. Oruene 1996 7 NWLR 462 pg 555 at pg 573, paragraph H, pg 575 paras C-D, pg 576 paras B-C. The Court of Appeal took the interpretation a step further to make it more explicit by saying that:- “It is trite that issue of crime in any civil action must arise on the pleading. Thus, Section 138(1) of the Evidence Act only applies where there is a specific allegation of crime in the pleadings so that the commission of a crime can properly be said to be a basis or foundation of the claim or defence as the case may be. Therefore, the application of Section 138(1) of the Evidence Act depends on the averments in the pleadings whether specific allegation of crime can be properly be said to be a basis or foundation of the claim or defence depending on the facts and circumstance of each case.” “Where a Plaintiff makes an allegation of crime in his pleadings but nevertheless can succeed in his claim without proving the crime, it cannot be said that the commission of the crime was a fact directly in issue. Furthermore, where in a civil claim, a person can succeed without proving criminal motive, the motive cannot be regarded as a fact in issue in order to apply the provision of Section 138(1) of the Evidence Act.” See Omorhirhi v. Enetevwere (1988)1 NWLR Pt. 73 pg 746, Nwankere v. Adewunmi (1967) NMLR, pg 45 at pg 48, Okuanime v. Obabokor (1966) NMLR 47, Chief G. Tewogbade v. Mrs. Obadina (1994) 4 NWLR pt 338 pg. 161.” Per ADEKEYE, J.S.C
See the case of ANAMBRA STATE ENVIRONMENTAL SANITATION AUTHORITY & ANOR V. EKWENEM (2009) LPELR-482(SC)

Admittedly, the burden of proof of a crime does not shift because it is static. See ANYASODOR V. STATE (2018) LPELR-43729(SC) wherein the apex Court held thusly:
“It is trite law that the burden of proof in criminal cases is always on the prosecution which must prove all the elements of the offence charged in order to secure conviction of the accused person. See Section 138(1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 2004 (as amended). See also the cases of Duru v. The State (1993)3 NWLR (pt.281) 290, Amadi vs Federal Republic of Nigeria (2008) 12 SC (pt. III) 55 and Abdullahi Vs State (2008) 5-6 SC (pt. 1) 1. The prosecution also has the onus to prove the guilt of the accused person beyond reasonable doubt through credible and reliable evidence in proof of the case against the accused person. The burden therefore, does not shift.” Per SANUSI, J.S.C

The Appellants’ failure to file a reply to the Respondents’ Statement of Defence wherein an allegation of fraud was made was held by the lower Court to be an admission of the crime, see page 689 of the records of Appeal. I agree with the Appellants that the issue of guilt of a party in an allegation of crime in a civil suit cannot be determined on the pleadings, that is not the law. Where a party is duty bound to prove any allegation to the standard of a crime, it must be determined on the basis of evidence and not pleadings. Pleadings, of course must introduce the allegation of crime but proof is beyond reasonable doubt. Assumptions have no place on how a crime is proved, failure to reply to allegation of crime does not remove the burden of proof from the party alleging crime. Principles of admission in a civil claim cannot be used in determining an allegation of crime in a civil suit, because even admissions in a civil suit have qualifications to meet before the Court can find that the other party admitted the facts against him. See ODUTOLA V. PAPERSACK (NIG) LTD (2006) LPELR-2259(SC) wherein the apex Court held thusly:
“An admission against interest, in order to be valid in favour of the adverse party, must not only vindicate or reflect the material evidence before the Court; it must also vindicate and reflect the legal position. Where an admission against interest does not vindicate or reflect the legal position, it will be regarded for all intents and purposes as superfluous. And a Court of law is entitled not to assign any probative value to it.” Per TOBI, J.S.C.

The procedure for the issuance of a Certificate of Occupancy which was in contention is a civil process but if the Appellants alleged fraud, then, the burden is on them to so prove and on the standard of a criminal allegation. There is also no such evidence before the trial Court to conclude that the allegation of fraud was proved. Fraud was defined in the case of OTUKPO V. JOHN & ANOR (2012) LPELR-25053(SC) as follows:
“Fraud is defined as an intentional perversion of truth for the purposes of inducing another in reliance upon it to part with some valuable thing belonging to him or to surrender a legal right. It is something dishonestly and morally wrong. Fraud has to be pleaded with particularity and established in evidence. A person alleging fraud is not only required to make the allegation in his pleadings but must set out particulars of fact establishing the alleged fraud, so that the defendant goes into Court prepared to meet then. Olufumise vs. Falana (1990) 3 NWLR, Pt.136, pg.1 UAC vs. Taylor (1936) 2 WACA pg.170 Usenfowokan vs. Idowu (1969) NMLR, P9.77 Ntuks vs. N.P.A (2007) 13 NWLR, pt.1051, pg. 332. Where a person alleging fraud does not specifically plead it, a Court cannot of its volition raise it, as a Court is bound to consider only issues raised on the pleadings before it. Obijuru vs. Ozims (1985) 2 NWLR, pt. 6, pg. 187 Nwadike vs. Ibekwe (1987) 4 NWLR, Pt. 67, pg. 718 Abacha vs. Fawehinmi (2000) 6 NWLR, pt. 660, pg. 228 Section 138 of the Evidence Act…It is clear from the foregoing provision of the Evidence Act that fraud being criminal in nature must be proved beyond reasonable doubt. The burden is on the person who asserts that a person is guilty of a crime.” Per ADEKEYE, J.S.C.
The elements necessary to prove fraud are as follows:
(1) An action or a conduct consisting in a knowing misrepresentation made with the intention that the person receiving that misrepresentation should act on it;
(2) The misrepresentation resulting in the action or conduct;
(3) An action or a conduct in a representation made recklessly without any belief in its truth, but made with the intention that the person receiving that misrepresentation should act on it and so on and so forth.
See the case of ONWUDIWE V. F.R.N. (2006) LPELR-2715(SC) and UMONAM NIG LTD & ANOR V. EFFIONG (2012) LPELR-20037(CA).
Going through the judgment of the lower Court, I cannot see any evidence of the alleged fraud. It was therefore wrong of the lower Court to find that fraud alleged has been established on the arguments of the learned counsel. Even on a civil standard, the claimant has the burden of introducing evidence before the defendant can present evidence to dislodge what the claimant had presented and the evidential burden is also there.
Furthermore, I do not think it is enough to allege fraud simply because the Appellants paid a reduced rate for the processing of their certificate of occupancy when such rates were fixed by the officials of the 3rd Respondent. The Respondent must prove elements of fraud before the Court can agree that the Appellants were guilty of fraudulent handling or processing the certificate of occupancy when officials of the 1st Respondent were all involved and none raised a red flag. None of the documents was found to be false and the Appellants paid all bills given to them in respect of the processing of the title. Indeed, the 1st Respondent and others can revoke titles but it must follow laid down procedure stipulated by the Evidence Act. The advice to revoke the title was given and acted upon without inviting and confronting the Appellants with the allegation, nor were the Appellants given an opportunity to examine those presenting evidence against them before a decision is taken on whether to revoke title or not. The foundation for the revocation is non-existent and nothing done can stand it, it is null and void. Therefore, the allegation of fraud was also not made out.

I resolve issue two in favour of the Appellants.

ISSUE THREE
The Appellants before the trial Court sought a declaratory relief of title to land. The lower Court found that the Appellants failed to establish its root of title. The land in question was acquired from the customary owners directly by the Appellants. It is settled that in a claim for declaration for title the Claimant has 5 methods to prove title, they are:
(a) Traditional evidence.
(b) Production of documents duly authenticated.
(c) By positive acts of ownership extending over a sufficient length of time.
(d) By acts of long possession and enjoyment of the land.
(e) By proof of possession of connected or adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See the following cases: AYANWALE V. ODUSAMI (2011) LPELR-8143 (SC), AYOOLA VS. ODOFIN (1984) 11 SC 120, EWO VS. ANI (2004) 17 NSC QR 36 26, NDUKUBA VS. IZUNDU (2007) 1 NWLR PT. 1016 PG. 432 NKADO VS. OBIANO (1997) 5 NWLR PT. 503, PG.31 NKWO VS. IBOE (1998) 7 NWLR PT. 558, and ADESANYA VS. ADERONMU (2000) 6 SC PT.11, PG.18.

In their pleadings, the Appellants averred that they got the land from customary owners and called their vendors as CW 3 and CW4 and for the identity of the land, they tendered a survey plan C9a-C9d as proof of boundary and location. The Respondents contended that the land in question was acquired by the Government and tendered Notice of Acquisition as Exhibit D1 and names of families compensated as Exhibit D2-D3. The Appellants referred to Exhibit D1 which has the coordinates of the Land acquired by Government and contended that they do not align with the coordinates on their Exhibit C9a-C9d and no member of those listed on Exhibit D2-D3 is from their vendors’ families. The question therefore is whether the land claimed is the same one the Respondent’s claim was acquired. With the survey plans not agreeing or aligning, it presupposes that the land claimed is not the same as the one acquired. With the coordinates, there must have been some overlapping somewhere if the land is the same. It is not possible to have different coordinates over the same land. Bearing is always taken from a particular point that has been so designated and since geographical coordinates are employed, the land must have the same coordinates or some must be the same. The fact of that disparity raises a flag.

The Appellants contended that the lower Court did not evaluate that piece of evidence along the root of title as explained by CW3 additional statement on oath. The response of the Respondents is simple that the Appellants did not establish their root of title and therefore their claim must fail.

Looking at the pleadings of the Appellants in respect of title, the Appellants pleaded their vendors root of title as communities. The lower Court in the judgment said no evidence was presented but it is obvious in the statements of representative of the families who gave their ancestral history and claimed the land and admitted they sold it to the Appellants. They further stated clearly that they were not compensated if the land had been acquired by government. This was not traversed by the Respondent. The ancestral history of a family or community cannot as definite as an individual family history, here, you are considering a group of people united together, clans, family united together as the 3 communities. I disagree with the lower Court that root of title was not established and therefore the claim cannot be granted.

I agree with the Court below that the Appellants not being the customary owners of the land allegedly acquired, it lacks the locus standi to question the validity of the acquisition. See GOLDMARK (NIG) LTD & ORS V. IBAFON CO. LTD & ORS (2012) LPELR-9349(SC) wherein the apex Court held thusly:
“A person who is not the proven owner of land in respect of which notice of acquisition or revocation is issued has no locus standi in law to seek nullification of the acquisition. See Elegushi v. Oseni (2005) 14 NWLR (Pt. 945) pg. 348.” Per ADEKEYE, J.S.C.

However, the Appellants’ vendors can challenge the alleged acquisition but they are not parties in the suit at the Court below.

It is trite that the possession of a certificate of occupancy is a rebuttable presumption, a more credible evidence can dislodge a party with a certificate of occupancy. See EZEANAH V. ATTA (2004) LPELR-1198(SC) wherein the apex Court held thusly:
“… a certificate of occupancy properly issued by a competent authority raises the presumption that the holder is the owner in exclusive possession of the land in respect thereof. Such a certificate also raises the presumption that at the time it was issued, there was not in existence a customary owner whose title has not been revoked. The presumption is however rebuttable because if it is proved by evidence that another person had better title to the land before the issuance of the certificate of occupancy then the Court can revoke it. See Osazuwa v. Ojo (1999) 13 NWLR (Pt. 634) 286. See also Atta v. Ezeanah (2000) 11 NWLR (Pt. 678) 363; Shogo v. Adebayo (2000) 14 NWLR (Pt. 686) 121.” Per TOBI, J.S.C.

The issue of the two surveys plans not aligning means the identity of the land the Appellants are claiming is different from the land the Respondents are considering. Furthermore, the failure to establish the names of the Appellants vendors amongst the list of those compensated is a fundamental defect and that means that the Respondents failed to join issues with the Appellants on those fundamental issues and therefore, the defence failed and the case of the Appellants was not challenged as required by law. It therefore means the findings of the lower Court is perverse and has to be set aside.

In any case, the fundamental issue which cannot be overlooked or explained is the breach of fair hearing, a finding made earlier in this. All actions taken after the breach are null and void and all issues raised and resolved are done purely in obeisance to the apex Court’s admonition to resolve all issues presented and to allow the apex Court have a view on the opinion of the Court on those issues. See OWURU & ANOR V. ADIGWU & ANOR (2017) LPELR-42733(SC) wherein apex Court held thusly:
“Generally speaking, the Court of Appeal, being an intermediate Court has a duty to consider all issues placed before it by the parties for determination. The reason is to give the apex Court the benefit of their view on all the issues should there be a further appeal to the Supreme Court. There is however, an exception. In Federal Ministry of Health & Anor v. Comet Shipping Agencies Ltd (2003) 9 NWLR (pt. 1145) 193 at 220, this Court held as follows:- ”In respect of the second issue of the parties, generally, it is settled that except in this Court, all issues ought and must be considered or dealt with by the intermediate Court. In other words, unless or except in the clearest of cases an intermediate Court such as the Court of Appeal should endeavour to resolve or pronounce on all issues put before it.” See also Ifeanyichukwu (Osondu) Co. Ltd v. Soleh Boneh Nig. Ltd (2000) 5 NWLR (Pt.656) 322, Owodunni v Registered Trustees of Celestial Church of Christ & 3 Ors (2000) 10 NWLR (Pt. 675) 315 at 326.” Per ONNOGHEN, J.S.C.

I have resolved the issues only in alternative to the finding that there was breach of fair hearing and therefore all the Respondents did concerning the Appellants title is null and void.

I now set aside the judgment of the Court below for being null and void having been founded on the report of the commission and acceptance of same by the Respondents, all are null and void for breach of fair hearing.

In the light of above and having resolved all the issues in favour of the Appellants, the appeal has merit and is hereby allowed and the judgment of the Ogun State High Court delivered by HON. JUSTICE O. O. MAJEKODUNMI on the 5th July, 2018 is hereby set aside. Appeal succeeds.
I make no order as to cost.

FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA.

The principle of fair hearing entails that both sides in a case must be given equal opportunity to present their respective cases. Fair hearing imposes some obligations on the Tribunal or Court hearing a matter. In a civil case, the irreducible minimum standard to be observed by the Court includes the following:
i. Each party is entitled to Counsel of his choice.
ii. Each party shall be given the opportunity to call all necessary witnesses in support of his case.
iii. Each party shall have the opportunity to cross-examine or otherwise challenge the evidence of witnesses called by his adversary either by himself or by his Counsel.
iv. At the close of the case and in accordance with the relevant rules of Court/Tribunal, each party shall have the right to address the Court/Tribunal on the law in support of his case.
See ARARUME VS. IBEZIM (2021) 8 NWLR (PT. 1779)543, NATIONAL EAR CENTRE VS. NNADI (2021) 17 NWLR (PT. 1805)365, NDUKAUBA VS. KOLOMO (2005) 4 NWLR (PT. 915) 411.
In the instant case, the Commission failed to comply with the irreducible minimum standard required by it in the consideration of the case against the Appellants. I therefore completely agree with my learned brother that the Respondents denied the Appellants fair hearing in the conduct of its proceedings in the matter involving the Appellants.

The violation of Appellant’s right to fair hearing before the Judicial Commission of Inquiry automatically renders the proceedings null, void and of no legal consequence.

It is for the foregoing and the more detailed reasons adumbrated in the lead judgment that I too allow this appeal and set aside the judgment of the lower Court.

ABBA BELLO MOHAMMED, J.C.A.: I have read in advance, the lead judgment just delivered by my learned brother, YARGATA BYENCHIT NIMPAR, JCA. I am in full agreement with his erudite reasoning and conclusions that this appeal is meritorious and deserves to be allowed.

I need to emphasize that the requirement of fair hearing is a fundamental principle of natural justice. It requires that in every decision affecting rights and obligations, all persons whose rights and obligations are likely to be affected must be given a hearing before such decision is taken. This imperative principle has come to be enshrined as a fundamental right in Chapter IV of our Constitution. Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 stipulates that:
In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure it independence and impartiality.
As succinctly highlighted in the lead judgment just delivered, the fact-finding Commission of Inquiry set up by the Respondents which recommended the revocation of the statutory right of occupancy of the Appellants had never given the Appellants a hearing before recommending that their statutory right of occupancy be revoked, which recommendation the Respondents implemented.
The learned trial judge was therefore wrong to have dismissed the Appellants’ claim on the flimsy reason that the Commission of Inquiry was merely a fact-finding Commission, when the said fact-finding of the Commission of Inquiry, which affected the Appellant’s right, was done without giving the Appellants any hearing, contrary to the express provisions of Section 36(1) of the 1999 Constitution quoted above.
In stating the effect of breach of the right to fair hearing and the duty on an appellate Court in such situation, the Supreme Court, per Onnoghen, JSC (as he then was) held in CHITRA KNITTING & WEAVING MANUFACTURING CO. LTD. v AKINGBADE (2016) LPELR-40437(SC), that:
What then is the consequence of a breach of the rights of fair hearing as guaranteed under the provision of Section 36(1) of the 1999 Constitution as amended? It is settled law that a breach of constitutional right of fair hearing in any trial or investigation nullifies such trial or investigation and decision taken thereon is also a nullity. The breach of the rights of fair hearing in any proceeding therefore vitiates the entire proceedings. It follows, therefore, that once an Appellate Court finds, as in this case, that there is a breach of the right of fair hearing in the proceeding in issue, it must allow the appeal having no other alternative in the matter.

It is for the above and the more detailed reasons espoused in the lead judgment, I also allow this appeal and set aside the judgment of the trial Court delivered on the 5th of July, 2018.