Walter Wagbatsoma Vs Federal Republic Of Nigeria (2018)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

The appellant in this appeal and four other defendants were arraigned, on Information, before the High Court of Lagos State for the offences of obtaining money by false pretence under Section 1 of the Advance Fee Fraud and other Fraud Related Offences Act, 2006; forgery and uttering under the Criminal Code, Cap. C17, Laws of Lagos State of Nigeria, 2003 and conspiracy to commit the said offences.

Sequel to their non-guilty plea, the case went to trial. The Prosecutions case was woven around the testimonies of twelve witnesses and seventy-one exhibits. At the end of the prosecutions case, the appellant and the other defendants, by their No Case Submission, contended that the Prosecution failed to make out a prima facie case against them; worse still, that the said High Court (hereinafter, simply, referred to as the trial Court) had no jurisdiction to entertain the case having regard to Sections 251 (1) of the Constitution of the Federal Republic of Nigeria, (as amended) (hereinafter, simply, referred to as the Constitution) and

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Section 1, 2 and 19 of the Admiralty Jurisdiction Act, [AJA].

In its Ruling, the trial Court dismissed the No Case Submission. It held that it had the requisite jurisdiction to try the offences of obtaining property by false pretences, forgery, uttering and conspiracy. It proceeded to strike down the provisions of Section 19 of the AJA. The appellants appeal to the Court of Appeal, Lagos Division, (hereinafter, simply, called the lower Court) was unsuccessful. The lower Court, however, found that, in striking down Section 19 of the AJA, the Ruling breached the appellants right to fair hearing. It nevertheless, declined to set aside the ruling of the trial Court.

Aggrieved by the said judgment of the lower Court, the appellant approached this Court entreating it to resolve his three issues couched thus:

1. Having regard to the lower Courts finding that the trial Court breached the principle of fair hearing in striking down Section 19 of the Admiralty Jurisdiction Act, whether the lower Court was not in grave error and so acted without jurisdiction when it thereafter failed to set aside the trial

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Courts Ruling

2. Having regard to the clear provisions of Section 251 (1) (a), (g), (n), (s) and (3) of the Constitution, Section 8 (1) of the Federal High Court Act (FHC Act), Sections 1, 2, 19 and 25 of the AJA vis-a-vis the information preferred against the appellant at the trial Court, as well as the evidence adduced by the Prosecution, whether the lower Court was not in grave error in holding that the trial Court rightly assumed jurisdiction on the Information dated 20th July 2012
3. Whether the lower Court was not in error when it failed to be bound and to follow the decision of this Honourable Court in George v FRN [2014] 5 NWLR (pt 1399) 1 and its own decisions in Okey Nwosu v FRN – Appeal No: CA/L/601/11 delivered on 21st November, 2013 and Akingbola v FRN – Appeal No: CA/L/490/14 delivered on 31st December, 2014

On his part, learned senior counsel for the respondent, Rotimi Jacobs, SAN, subsumed the above three issues into only one which he framed thus:

Whether the Court of Appeal was not right in upholding the decision of the High Court of Lagos State that it had the jurisdiction to entertain the Information

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contained in Charge No: ID/115C/2012 bordering on the offences of obtaining money by false pretence under the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, forgery, uttering and conspiracy under Sections 467 and 468 of the Criminal Code Cap. C17, volume 2, Laws of Lagos State, Nigeria, 2003

The respondents approach notwithstanding, this appeal would be determined based on the issues which the appellant set out above. However, the consideration of issues two and three would abide the determination of the first issue. If this issue [issue one] is resolved in his favour, there would no need broaching the other issues.

ARGUMENTS ON THE ISSUES

CONTENTION OF THE APPELLANT

ISSUE ONE

1. Having regard to the lower Courts finding that the trial Court breached the principle of fair hearing in striking down Section 19 of the Admiralty Jurisdiction Act, whether the lower Court was not in grave error and so acted without jurisdiction when it thereafter failed to set aside the trial Courts Ruling

At the hearing of this appeal on November 15, 2017, counsel for the appellant, Yusuf Asamah

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Kadiri adopted the Amended Appellants brief filed on November 8, 2017, although, deemed properly filed and served on November 15, 2017. And the Reply Brief filed on October 23, 2017. He set out the order of the lower Court at page 2318 of the record wherein the Court only set aside the part of the decision of the trial Court that struck down Section 19 of the AJA without hearing from the parties.

He contended that the finding of the lower Court ought to have resulted in the setting aside of the entire decision of the trial Court, Dingyadi v INEC [2011] 18 NWLR (pt 1224) 1, 53 -54; Agbiti v Nigerian Navy [2011] 4 NWLR (Pt 1236) 175, 216; Nyesom v Peterside and Ors (2016) LPELR -40036 (SC). In his submission, parties are not entitled to waive a breach of the right to fair hearing, Menakaya v Menakaya [2001] 16 NWLR (Pt 738) 303, 236; Ariori v Elemo [1983] 1 SCNLR 1, 28.

He maintained that once there is a breach of the said right to fair hearing, the entire proceedings become vitiated, Danladi v Dangiri [2014] 11 SC 1, 75; Olumesan v Ogundepo [1996] 2 NWLR (pt 433) 628, 645; Idakwo v Ejiga [2002] 13 NWLR (pt 783) 156, 165 – 166; PAI Incorp v

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SL Ltd [2010] 6 NWLR (Pt.1189) 98, 109 -110.

He submitted that, having found that the decision of the trial Court occasioned a breach of the right to fair hearing, the lower Court was under obligation to set aside the entire decision of the trial Court, it being immaterial whether the decision had any effect on the final decision of the trial Court, Olumesan v Ogundepo (supra); Idakwo v Ejiga (supra).

He contended that the issue of Section 19 of the AJA was inextricably, tied to the application before the trial Court as well as the appeal before the lower Court, citing pages 2109 -2128 of the record for the Amended Notice of Appeal from the trial Court to the lower Court. He pointed out that Grounds 2 and 5 were anchored on Section 19 of the AJA; also, issue one in the Amended Brief of Argument, pages 2177 – 2217 of the record; and the appellants application at the trial Court, written addresses in support of the application, pages 1705 – 1782; 1864 – 1901, respectively, of the record, which showed that the issue of Section 19 (supra) was intrinsic to the application which the trial Court was called upon to make a

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decision.

He explained that, although the lower Court found that the trial Court breached the appellants right to fair hearing, it still declined to set aside the said decision of the trial Court, an approach which he found to be wrong, AG, Rivers State v Ude (2006) LPELR -626 (SC). He maintained that, by the said finding, the lower Court itself had no more jurisdiction to proceed with the matter, Odofin v Agu [1992] 23 NSCC (pt.1) 520, 532; Obi v INEC [2007] 11 NWLR (pt 1046) 560, 628 – 629.

In his submission, the only option open to the lower Court, sequel to its finding that there was a breach of the appellants right to fair hearing, was to set aside the decision complained against. He canvassed the view that, by declining to set aside the ruling of the trial Court which had breached the appellants right, the lower Court was in itself, in breach of the appellants right to fair hearing.Amoo v Alabi [2003] 15 NSCQLR 132, 144; Gafar v Government of Kwara State [2007] All FWLR (pt 360) 1415, 1440; Buhari v INEC [2008] 19 NWLR (pt 1120) 246, 402; FBN v Abraham [2008] 18 NWLR (pt 1118) 172,

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190.

RESPONDENTS ARGUMENTS

On his part, Learned Senior Counsel for the respondent, Rotimi Jacobs, SAN, adopted the respondents brief which was filed on June 28, 2017, although, deemed properly filed and served on November 15, 2017.

He explained that, at the High Court, the appellant had contended that the charges against him had to do with admiralty matters. The trial Court, he observed, ruled that the charge was not an admiralty matter and that Section 19 of the AJA could not take away the jurisdiction of the State High Court. It therefore struck down the section.

He noted that, placing reliance on such decisions like Petro Jessica v Leventist Technical Co Ltd 1992 NWLR (pt 244) 675; Aluminium Manufacturing Co Ltd v NPA 1987 NWLR (pt 51) 475; American International Inc v Ceekay Traders Ltd [1981] 5 SC 50, the lower Court upheld the trial Courts decision. He drew attention to page 3218 of the record where the lower Court, having found that the trial Court suo motu raised the issue of the applicability of Section 19 (supra), held that it was wrong and set aside that part of the decision of

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the trial Court that struck down Section 19 (supra).

Learned senior counsel contended that, the lower Court having affirmed the trial Courts decision that the said charge was not on admiralty, held that there was no need for the trial Court to consider Section 19 (supra). The decision of the lower Court, according to him, was that the order striking out Section 19 (supra) was merely an academic exercise.

He maintained that the trial Courts decision on Section 19 (supra) was clearly unnecessary since it had found that the appellants case did not fall within the AJA. In his submission, whatever opinion which the trial Court rendered after its finding on Section 19 (supra) was a mere obiter dictum and an academic exercise. He contended that parties are not permitted to appeal mere obita dicta, Saraki V. Kotoye [1992] 9 NWLR (Pt.262) 154; Nasiru v Bindawa [2006] 1 NWLR (pt 961) 355, 371 -372.

Finally, on this issue, he urged the Court to hold that not every mistake that would lead to the reversal of a judgment, Chukwuma v FRN [2001] 13 NWLR (Pt.1264) 391, 420 – 421; Solola v State [2005] 2 NWLR (pt 937) 460, 485. In his

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submission, the decision of the trial Court on Section 19 of the AJA cannot be regarded as a substantial issue that could occasion a miscarriage of justice.

APPELLANTS REPLY

As indicated earlier, learned counsel for the appellant equally adopted the appellants Reply brief. In the said reply brief, he responded to the issues as follows;

In the first place, he contended that the trial Courts decision, striking out Section 19 (supra), was part of the ratio decidendi and not an obiter dictum, as the respondents senior counsel argued, Omoniyi v Alabi [2015] 6 NWLR (pt 1456) 572, 589 – 591; E B. He pointed out that the lower Court faulted the said decision on the ground that it was raised suo motu, without any invitation to address on it before striking down the said Section 19: an action described as coming from the blues. He argued that the lower Courts reasons formed the bedrock upon which the appellants right to fair hearing was determined.

Citing Ogbolosingha v BSIEC [2015] 6 NWLR (pt.1455) 311, 343; A -H, he contended that the ratio decidendi in a case is not

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determined from isolated dicta in a judgment but on the consideration of the issues in the dispute between the parties and the facts pleaded. He pointed out that parties joined issues on the admiralty jurisdiction at the trial Court.

The appellants position was that admiralty matters were within the exclusive jurisdiction of the Federal High Court. He observed that the appellants first issue for determination at the trial Court was based on the propriety or otherwise of the Court striking out Section 19 (supra): an issue, he argued was valid and sustainable in law.

He re-iterated the submission that the trial Courts failure to invite parties to address it on the issue it raised suo motu amounted to a breach of the appellants right to fair hearing and therefore occasioned a grave miscarriage of justice, Ogwe v IGP [2015] 7 NWLR (pt 1459) 505, 530; Olaolu v FRN [2016] 3 NWLR (pt 1498) 133, 155; 165.

He finally contended that the lower Court having found that the striking down of Section 19 (supra) was an affront on the appellants right to fair hearing, it was a contradiction for the lower Court to hold

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that the charge did not relate to admiralty.

RESOLUTION OF THE ISSUE

As shown above, at the trial Court, the appellant, by Motion on Notice, [pages 1705 et seq] beseeched the Court with an application to acquit and discharge him on the Information dated July 20, 2012 on the ground, inter alia, that:

i. On the aggregate of the contents of the Information itself, the evidence adduced, the materials produced, vis–vis the Constitution and extant laws, this Honourable Court lacks the vires to countenance and/or adjudicate on the Information.

The Grounds of the application were set out on page 1706 of the record. In Ground iii, the applicant contended that:

The entire Nine Counts: Count Nos. 1, 2, 3, 4, 5, 6, 7, 8 and 9 all relate to matters over which it is only the Federal High Court that has exclusive jurisdiction under Section 251 (1) (a) (g) (n) and (3) of the 1999 Constitution, Section 8 (1) of the Federal High Court Act and Section 1 (1) and (2) and 19 of the Admiralty Jurisdiction Act, Cap. A. 5 LFN, 2004.

[Italics supplied for emphasis]

Extensive arguments were canvassed by the appellant and the

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respondent in their written submissions on this issue, among others. In its Ruling, [pages 1958 – 1981 of Volume IV of the record], the trial Court dealt with the submissions of counsel. It dismissed the appellants application. However, at page 1968 of the said record, it introduced a fresh perspective to the application.

After its lengthy consideration of the effect of Section 251 of the Constitution (supra), it proceeded thus:

Section 19 of the Admiralty Jurisdiction Act however appears to widen the scope of Section 252 (3) [supra] by seemingly conferring exclusive jurisdiction on the Federal High Court when it comes to admiralty causes or matters of a criminal kind…

But even if I were wrong in this regard, I believe that this provision (Section 19 of the Admiralty Jurisdiction Act) is inconsistent with the words of the Constitution and would then be struck down to the extent of that inconsistency… [page 1968 of the record; italics supplied for emphasis].

Aggrieved by this development, the appellant approached the lower Court. In Ground Five of his Notice and Grounds of Appeal, he alleged that the trial Court erred

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in the above view. Particulars (iv) (v) and (vi) of the Particulars of Error, [page 2115 of Volume V of the record], were devoted to this complaint. According to the appellant:

(iv) The issue of inconsistency of Section 19 of the AJA with the Constitution was raised and determined suo motu by the learned trial Judge;

(v) Further to (iv) supra/ the appellant was not afforded an opportunity to be heard thereon before the said section was struck down;

(vi) [The] Attorney General of the Federation was neither a party at the lower Court [that is, trial Court] nor joined at any material time when the trial Court struck down Section 19 of the Admiralty Jurisdiction Act.

In his submission, at page 2189 of the record, the appellant invited the lower Court to view the above position of the trial Court as:

…ultra vires and unconstitutional. It thus appear (sic) that the lower Court saw Section 19 of the Admiralty Jurisdiction Act as an obstacle to its acquisition of jurisdiction, thus, striking it down suo motu, without asking for counsels address on it, thus denying the appellant of the right to fair hearing, Finnih v Imade [1992]

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1 NWLR (Pt 219) 511, 537; Ejezie v Anuwu [2008] All FWLR (Pt 422) 1005, 1049. In addition, the lower Court [that is, the trial Court] has no jurisdiction, power or vires to strike down an Act of the National Assembly in a matter in which neither the Attorney General of the Federation nor the National Assembly is a party or heard, Peenok Investment Ltd v Hotel Presidential [1983] 4 NCLR 122, 163. More fundamentally, it has been demonstrated that Section 19 of the Act is very consistent with Section 251 (1) (g) (supra).

The lower Court essentially agreed with the appellants submission that the trial Court was wrong to have raised the issue of Section 19 (supra) suo motu; resolved it and struck it down without any input from counsel. It first pointed out that:

The learned trial Judge struck out Section 19 of the Admiralty Jurisdiction Act, 1991. The [Act] is an existing law which by virtue of Section 315 (1) of the 1999 Constitution is recognised. The 1999 Constitution took into account this law when it provided for the admiralty jurisdiction therefore, it cannot be correct that Section 19 [supra] is contrary to the

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intendment of Section 251 (3) of the 1999 Constitution. It recognises the criminal jurisdiction in admiralty cases.

[page 2317 of Volume v of the record]

At page 2318 of Volume V of the record, the lower Court, in agreeing with the above submissions, held that the trial Courts view on Section 19 (supra):

…was done by the Court suo motu which violates the principle of fair hearing….Counsel were not invited to address the Court before the striking down was down. It was done from the blues so to speak. Therefore, it cannot be allowed to stand. In this regard, I set aside that part of the decision striking down Section 19 of the Admiralty Jurisdiction Act, 1991.

[Italics supplied for emphasis]

This was what provoked the submission before this Court that the above finding [of the lower Court] ought to have resulted in the setting aside of the entire decision of the trial Court, [paragraph 4.2; page 4 of the Amended Appellants brief].

As shown above, learned senior counsel for the respondent took the view that the trial Courts view was a mere obiter dictum. Before

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proceeding further, it would be necessary to dispose of this submission. Was the said trial Courts view on Section 19 of the AJA a mere obiter dictum or part of the ratio decidendi

My Lords, permit me to re-iterate my views, for the Court of Appeal, in Ibrahim v Fulani and Ors (2009) LPELR-4279 (CA) 35 et seq. According to the Court of Appeal, [per Nweze, JCA, as he then was], the search for the meaning of ratio decidendi pokes into an aspect of a long-drawn debate in the epistemology of Jurisprudence and Legal Theory:

Somewhat, beneficially, the search has produced very robust and engaging disquisitions which are remarkable not only for the acuity of their premises and rigour of their logic, but also for the allurement of their syllogisms: Paton and Sawyer, Ratio Decidendi and Obiter Dictum in Appellate Courts.” (1947) 63 LQR 461, 481; Goodhart, Essays in Jurisprudence and the Common Law chapter 1; Glanville Williams, Learning the Law 71; Dias and Hughes, Jurisprudence 74; Lord Lloyd of Hampstead, Introduction to Jurisprudence 375; C. K. Allen, Law in the Making (seventh edition) 259-260; Hood Phillips, 4 First Book of English

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Law (sixth edition) 202-203; Salmond, Jurisprudence 223, cited in P. U. Umoh, Precedent in Nigerian Courts (Enugu: Fourth Dimension Publishers Ltd, 1984) 208; Rupert Cross, The Ratio in 20 MLR 124-116; A. G. Karibi-Whyte, The Tyranny of Judicial precedents, in (1990) Vol.3 No.1 Cal. LJ; Odiase v Agho (1972) 1 All NLR 170, 176; Savannah Bank of Nigeria Ltd v P.A.S.T.A. Ltd (1987) 1 SC 198; 278-279; N.A.B Ltd v B. Eng (Nig) Ltd (1995) 8 NWLR (Pt 413) etc…

Now, the term ratio decidendi [plural: rationes decidendi] has not lent itself to a satisfactory definition, C. K. Allen, Law in the Making (supra) 259-260. It is not surprising, therefore, that the definitions proffered by Professors Hood Phillips and Karl Llewellyn have been subjected to scathing strictures. For Hood Phillips, ratio is the reason for the decision or the principle of law on which the decision was based, see, Hood Phillips, A First Book of English Law (supra) 202-203. Professor Karl Llewellyn argues that ratio decidendi is prima facie the rule of the case, since it is the ground upon which the Court chose to rest its decision, in

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U. Umoh, Precedent in Nigerian Courts (supra) 207.

Professor Goodhart has punctured these definitions. In his Essays in Jurisprudence and the Common Law (supra), the distinguished jurisprudent contended that the ratio decidendi is neither the reason for the decision nor the principle of the law in the judgment. Ironically, Goodharts definition of the term, which Professor Glanville Williams adapted, has received further qualification. Professor Glanville Williams, adapting Goodharts definition had presented the matter thus: the ratio decidendi of a case can be defined as the material facts of the case plus the decision thereon, Glanville Williams, Learning the Law (supra) 71, in P. U, Umoh, Precedent in Nigerian Courts (supra) 207.

In their authoritative work, Jurisprudence, (supra) page 74, Dias and Hughes pointed out that:

Goodharts theory implies that it is the deciding Judge who decides what are the material facts and that these can be discovered by a perusal of the judgment.

Lord Lloyd of Hampstead aligns himself with this observation of the erudite jurisprudents, Lloyd, Introduction to

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Jurisprudence (supra) page 375.

This may well be so! However, I must hasten to observe that the above criticisms have no utilitarian value for us since we are bound by the approach adopted by the Supreme Court to this question. That approach would appear to be an amalgamation of the views of Hood Phillips and the definition of Goodhart, as adapted by Glanville Williams. Thus, for example, Karibi-Whyte JSC in Savannah Bank of Nigeria Ltd v P.A.S.T.A. Ltd (1987) 1 SC 198; 278-279 offered the following invaluable guides:

In determining the ratio decidendi of a case, it is safer to consider the claim before the Court and the issue which the Court was called upon to decide. Thus, the reasons given by the Court for deciding the claim before it is the ratio decidendi which the Court is obliged to follow in subsequent cases and will not lightly depart from unless to avoid the perpetuation of errors…Accordingly, opinions in the judgment which are not part of the material facts even where relevant to the determination of the case do not constitute part of the ratio decidendi and are not binding…

[Italics supplied for emphasis]

In

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Omisore and Anor v Aregbesola and Ors [2015] 15 NWLR (pt 1482) 205, this Court [per Nweze, JSC]

explained that:

In Legal Theory, an obiter dictum, in contradistinction to the ratio decidendi of a case, is a Judges passing remarks which do not reflect the reasoning of the Court or ground upon which a case is decided, Paton and Sawyer, Ratio Decidendi and Obiter Dictum in Appellate Courts (1947) 63 LQR 461, 481; Rupert Cross, The Ratio in 20 MLR 124-126; A. G. Karibi-Whyte, The Tyranny of Judicial Precedents, in (1990) Vol.3 No.1 Cal. LJ; P. U. Umoh, Precedent in Nigerian Courts (Enugu: Fourth Dimension Publishers Ltd. 1984) 208; Nwana v FCDA and Ors (2004) LPELR 2102 (SC) 12, F-G; Yusuf v. Egbe [1987] 2 NWLR (pt.56) 341; Amobi v Nzegwu [2013] 12 SCNJ 91.

As indicated above, counsel for the appellant contended that the issue of Section 19 of the AJA was, inextricably, tied to the application before the trial Court as well as the appeal before the lower Court, citing pages 2109 -2128 of the record for the Amended Notice of Appeal from the trial Court to the lower Court. He pointed out that

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Grounds 2 and 5 were anchored on Section 19 of the AJA; also, issue one in the Amended Brief of Argument, pages 2177 – 2211 of the record; and the appellants application at the trial Court, written addresses in support of the application, pages 1705 -1782; 1864 -1901, respectively, of the record, which showed that the issue of Section 19 (supra) was intrinsic to the application which the trial Court was called upon to make a decision.

Against the above background, therefore, learned senior counsel for the respondent could not have been right in his submission. In my humble view, the appellants counsels submission is unanswerable: the said Section 19 of the AJA was intricately, interwoven into both the claim and the issue which the trial Court was called upon to resolve.

Regrettably, as the lower Court found at page 2318 of Volume V of the record, in agreeing with the submissions of the appellants counsel, the trial Courts view on Section 19 (supra):

…was done by the Court suo motu which violates the principle of fair hearing… Counsel were not invited to address the Court before the striking down

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was done. It was done from the blues so to speak. Therefore, it cannot be allowed to stand. In this regard, I set aside that part of the decision striking down Section 19 of the Admiralty Jurisdiction Act, 1991.

[Italics supplied for emphasis]

In the first place, I affirm the findings of the lower Court that, having taken up the issue of the inconsistency of Section 19 (supra) with the Constitution, the trial Court did not afford counsel the opportunity of advancing arguments on the issue it so raised suo motu. That was a wrong approach.

It cannot be otherwise for it is now settled that where a Court raises an issue suo motu, the parties must be afforded the opportunity of offering arguments on it, Odiase v Agho (1972) 3 SC 71; Adegoke v Adibi (1992) 5 NWLR (Pt. 242) 410; Atanda v Akanmi (1974) 3 SC 109; Kraus T. Org. Ltd v UNICAL (2004) 25 WRN 1, 17. A violation of this canon is an invasion of the right to fair hearing, Oje v Babalola (1991) 4 NWLR (pt 185) 267; Ugo v Obiekwe (1989) 1 NWLR (pt 99) 566. It has actually been elevated to a miscarriage of justice, Owoso v Sunmonu (2004) 30 WRN 93, 106-107, Ojo v Anibire

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(2004) 5 KLR (pt 177) 1205, 1207; Wilson v Wilson (1969) ALR 191.

Perhaps, an explanation is necessary here. In the interest of justice, the trial Court was entitled to raise issues suo motu, Kraus T. Org. Ltd v UNICAL (2004) 25 WRN 1, 17 However, if it does so and unilaterally undertook the resolution of the said issues, it raised suo motu without hearing from the parties, it would have erred. This must be so for the law is now clearly settled that when a Court for any compelling reason, finds it necessary, and particularly in the interest of justice to raise a point or issue suo motu, the parties must be given an opportunity to be heard on such a point or issue. This rule applies even with greater force in favour of the party that would be prejudiced as a result of the point raised without the prompting of any of the litigants in the case, Adegoke v Adibi (1992) 5 NWLR (pt 242) 410; Atanda v Akanmi (1974) 3 SC 109; Odiase v Agho (1972) 3 SC 71; Kraus T. Org. Ltd v UNICAL (2004) 25 WRN 1, 77.

An infraction of this rule amounts to a flagrant breach of the aggrieved partys right to fair hearing as entrenched in the Constitution, Oje

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v Babalola (1991) 4 NWLR (pt 185) 267; Ugo v Obiekwe (1989) 1 NWLR (pt 99) 566. Indeed, it equiponderates to a miscarriage of justice,Owoso v Sunmonu (2004) 30 WRN 93, 106-107; meaning, failure of justice, Ojo v Anibire (2004) 5 KLR (pt 177) 1205, 1207 or justice which is not in consonance with the law, Wilson v Wilson (1969) ALR 191 approvingly adopted in Ojo v Anibire (supra) 1214.

The lower Court, however erred in its effort to save the entire proceedings. It set aside only that part of the ruling that struck down Section 19 of the AJA. With respect that cannot be. This Court cannot allow such makeshift approach to the administration of justice. In the circumstance, I have a duty to purge the entire proceedings of the trial Court of such breaches which have the capacity of tarnishing the allure and purity of its decisions.

That is why I must flush out its proceedings. It is immaterial that they were brilliantly conducted. In a word, they constitute a travesty of justice, Owoso v Sunmonu (supra). The net effect is that I resolve this issue in favour of the appellant. This also, relieves me of the drudgery of the consideration of the other

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issues. This must be so because of the view, which I expressed above, that the approach of the trial Court, as affirmed by the lower Court, was a flagrant breach of the appellants right to fair hearing as entrenched in the Constitution, Oje v Babalola(1991).

Thus, no matter how brilliantly the proceedings were conducted, I am under obligation to vacate them as a travesty of justice, Obawole and Anor v Williams and Anor (1996) LPELR -2158 (SC) 21; B-C; UNICAL v Essien (1996) LPELR – 3416 (SC) 65; B-D; Oje and Anor v Babalola and Ors (1991) LPELR-2368 (SC) 17; E-F; Seldon v. Bromfreld Justices (1964) 2 Q.B. 573, 78; Rex v. Hendon Justices (Ex parte Gorchein) (1973) 1 W.L.R. 1502; Okafor and Ors v. Nnaife and Ors [1972] 3 ECSLR 261; Ugo v. Obiekwe [1989] 1 NWLR (Pt.99) 566, 581; Kuti and Anor. v. Jibowu and Anor. (1972) 1 All NLR (Pt.II)180, 192.

Others include: Salawu Ajao v Karimu Ashiru and Ors (1973) 1 All NLR (pt II) 51, 63; Atanda and Anor. v Akanmi(1974) 1 All NLR (pt I)168, 178; Kuti v Balogun (1978) 1 LRN 353, 357; Olusanya v Olusanya (1983) LPELR -2630 (SC) 10; [1983] 1 SCNLR 134, [1983] 14 NSCC 97; D-G; Odedo v PDP and Ors

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(2015) LPELR – 24738 (SC) 40 – 41; E-D; Prov. Liquidator, Tapp Ind. v. TAPP Ind [1995] 5 NWLR (pt.393) 9; Okonjo v. Njokanma [1999] 14 NWLR (pt. 638) 250, 265; Finnih v. Imade (1992) 1 NWLR (pt.219) 511; Kuti v. Jibowu [1972] 6 SC 147.

Other cases, also, include – Ochonma v. Unosi (1965) NMLR 325; Oyekanmi v. NEPA [2000] 15 NWLR (pt. 690) 414, 439; E – F; Governor of Gongola State v. Tukur [1989] 4 NWLR (pt.117) 592; Adegoke v. Adibi [1992] 5 NWLR (pt. 242) 410; Eholor v. Osayande [1992] 6 NWLR (pt. 249) 524; Ajuwon v. Akanni [1993] 9 NWLR (pt.316) 182; Hambe v. Hueze [2001] 4 NWLR (pt. 703) 372, 388; Ugo v. Obiekwe [1989] 1 NWLR (pt. 99) 566; [1989] 2 SCNJ 31; Abbas v. Solomon [2001] 15 NWLR (pt. 735) 144; [2001] FWLR (pt. 67) 847; Osasona v. Ajayi [2004] All FWLR (pt. 216) 443; [2004] 14 NWLR (pt.894) 527; [2004] 5 SCNJ 82; Fombo v. Rivers State Housing and Property Development Authority [2005] 5 SCNJ 213; Nobis- Elendu v INEC and Ors (2015) LPELR -25127 (SC) 76 -77; Kuti v Balogun [1978] 1 SC 53, 60; Obawole v Williams [1996] 10 NWLR (pt.477) 146; Stirling Civil Eng. (Nig.) Ltd. v Yahaya [2005] 11 NWLR (pt.935) 181; Omokuwajo v FRN [2013] 9 NWLR

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(pt.1359) 300; Ominiyi v Alabi (2015) LPELR SC.41/2004; Ejezie and Ors v Anuwu and Ors (2008) LPELR -1063 (SC); Rekku Fulani and Anor. v. Ephraim Danladi Idi [1990]5 NWLR (pt.150) 311, 318; Oje and Ors v. Babalola and Ors. [1991] 4 NWLR (pt.155) 267; Dairo v UBN [2008] 2 WRN 1, 14 – 15; 35; Nteogwuile v. Otuo [2001] 16 NWLR (pt.738) 58; Adigun v. A-G., Oyo State (1987) 1 NWLR (Pt. 53) 678; [1987] 1 NSCC 346; [1987] 4 SC 272.

In all therefore, I hereby enter an order allowing this appeal. I hereby order the immediate remittance of the case file to the Chief Judge of Lagos State for re-assignment to another Judge of the High Court for the expeditious disposal of the case. Appeal allowed. Case file to be immediately remitted to the Chief Judge of Lagos State for re- assignment to another Judge.

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SC.517/2015