Wema Bank Plc V. Olotu & Anor (2022)

LAWGLOBAL HUB Lead Judgment Report

TIJJANI ABUBAKAR, J.S.C. 

This appeal is an off-shoot of the decision of the Court of Appeal Ibadan Division delivered on the 2nd day of December, 2015, affirming the decision of the Oyo State High Court, wherein the trial High Court granted the reliefs prayed for by the Respondent in part and awarded N20,000,000 as damages and further sum of N234,275.79.

The Respondents as plaintiffs in suit No. 1/417/2005 commenced by a Writ of Summons in High Court of Justice Ibadan, where the following reliefs were sought for against the Appellant, who was the defendant at the trial Court.;

I. “A declaration that the 1st defendant’s purported termination of the two contracts agreements, both dated 20th December, respectively, with the plaintiffs is wrongful, improper and constitute breaches and/or repudiation of its obligations to the plaintiff.

ALTERNATIVELY

A DECLARATION that the 1st defendant is in breach of its obligation to implement the terms of the arbitral award of Adegbola Adeniyi, Esq. dated 8th December, 2004 in the matter of an arbitral reference between the plaintiffs and the defendants.

II.

AN ORDER directing the defendants to pay the plaintiffs forthwith consequential damages for breach of contract/repudiation of contractual and other obligations under the terms of the two ROT contracts in respect of Ramat and Olori Hostels of 20th December, 2021, as the arbitral award of Adegbola Adeniyi, Esq dated 8th December, 2004 between the plaintiffs and 1st defendant

(a) Loss of anticipated profit from the benefit of the two ROT Contracts of 20th December 2001 for the term often (10) years – N200,000,000.00

(b) Damages being loss of sums invested in the execution of the two ROT Contracts of 20th December 2001 for total failure or want of consideration – N32,000,000.00

Two Hundred and Thirty Two Million Naira N232,000,000.00

III. Interest on the sum of N232 million from 8th December, 2004 at 19% per annum being commercial banking lending rate till the date of the judgment and thereafter at the rate of 10% per annum until that part of the judgment debt is liquidated

IV. A DECLARATION that the plaintiffs do not owe, are not indebted, or howsoever liable to the 2nd defendant either in the sum of N16,248,989.21 (Sixteen million, two hundred and forty eight thousand, nine hundred and eighty nine Naira and twenty one Kobo) as at 1st February, 2005 or at all.

V. A DECLARATION that the 2nd defendant is liable to the plaintiffs to the sum of N4,944,535.74 (Four million nine hundred and forty-four thousand, five hundred and thirty-five Naira and seventy-four Kobo) being money had and received for lack/total failure of consideration in the 2nd defendant’s maintenance of account No. 02644 and loan account in the names of the plaintiffs at their Polytechnic Ibadan branch.

VI. An order directing the 2nd defendant to pay to the plaintiffs the sum of N4,944,535.74 (Four million nine hundred and forty-four thousand, five hundred and thirty-five Naira and seventy-four Kobo) forthwith.

VII. An order directing the 2nd defendant to pay interest to the plaintiffs on the sum of N4,944,535.74 (Four million nine hundred and forty-four thousand five hundred and thirty-five Naira and seventy-four Kobo) at the rate of 19% per annum being commercial bank lending rate from 19th June 2004 till the date judgment is delivered and thereafter at the rate of 10% annum till the date the judgment debt is finally liquidated.

VIII. ALTERNATIVELY TO III AND/OR (IV), (V) & (VI)

AN ORDER directing that account and inquiries be made and conducted into all details of the operation of account No. 02644 and loan account held in the names of the plaintiffs as well as account No. 20826 held in the name of the 1st plaintiff, at the Polytechnic Ibadan branch of the 2nd defendant, and making further directions as to the final disposal of the inquiry result, including directions of refund of amounts found or certified to be due to the plaintiffs and interest due thereon.

A DECLARATION that the 2nd defendant is liable for inducing and or procuring the 1st defendant to breach and repudiate its obligations to the plaintiffs under terms of the two R. O. T contracts of 20th December, 2001, as well as the arbitral award of Adegbola Adeniyi, Esq dated 8th December, 2004.

A DECLARATION that both 1st and 2nd defendant conspired to unlawfully and illegally breach and repudiate the 1st defendant’s obligations to the plaintiffs under the terms of the two R. O. T contracts of 20th December 2001 and the arbitral award of Adegbola Adeniyi, Esq of 8th December, 2004.

AN ORDER directing the 2nd defendant to pay to the plaintiffs the sum of N350 Million (Three hundred and fifty million Naira) being consequential and other damages for their torts of procuring/inducing the 1st defendant to breach its contracts with the plaintiffs.

A DECLARATION that the 2nd defendant repudiated its obligation to the 1st plaintiff in the way and manner of maintaining account No 20826 held at its polytechnic Ibadan Branch and wrongfully caused the 1st plaintiff loss of business good will profit as well as defamation to his person, financial standing, credit and integrity in wrongfully refusing to honour cheque No 28146976 drawn on account No 20826 in the sum of N75,000

AN ORDER directing the 2nd defendant to pay to the 1st plaintiff the sum of N25M Million (Twenty-five million) being consequential and other damages for the loss of good will and defamation to the financial and commercial standing, credit and integrity of the 1st plaintiff.

AN ORDER directing the 2nd defendant to pay to the 1st plaintiff the sum of N350,000 (Three hundred and fifty thousand Naira) being damages for loss of business opportunity and profit in the transaction of property at Lodge Street, Oke Ado, Ibadan on the 16th September, 2004.

AN ORDER directing the 2nd defendant to pay to the plaintiffs on the sum of N350 Million (Three hundred and fifty million Naira) interest at the rate of 10% per annum from the date of judgment until the judgment debt is finally liquidated.

AN ORDER directing the 2nd defendant to pay to the 1st plaintiff on the sum of N25 million (Twenty five million) interest at the rate of 19% per annum from 16th September, 2004 until the date of the judgment and thereafter at the rate of 10% per annum from the date of judgment until the judgment debt is finally liquidated.

AN ORDER directing the 2nd defendant to pay to the 1st plaintiff on the sum of N350,000 (Three hundred and fifty thousand Naira) interest at the rate of 19% per annum from the 16th September, 2004 until the date of the judgment and thereafter, at the rate of 10% per annum from the date of judgment until the judgment debt is finally liquidated.

AN ORDER directing the defendants to jointly and severally pay to the plaintiffs their full taxed costs of the prosecution of this suit.

IX. A declaration that the defendant’s letter with reference No. 2011 purporting to dismiss the plaintiff from the services of the 1st defendant on the ground of consideration of the senior staff Disciplinary committee, Appointment and Promotion Committee bordering on allegation of crimes which the plaintiff had not been convicted for by any regular Court of the land is unlawful, irregular and a flagrant violation of the plaintiff’s right to employment and consequently null and void and of no effect whatsoever.

X. An order of this honourable Court setting aside the purported dismissal of the plaintiff by the defendants, same being unlawful, malicious irregular and flagrant violation of the plaintiff’s right to employment until mandatory retirement age.

XI. An order of this Honourable Court directing the defendants to reinstate the plaintiff to his employment with the 1st defendant and to be paid all his benefits and emoluments, including the 50% of the salary arrears increment effective from the period of his interdiction being August, 2009 till the period of the purported dismissal.

XII. An order awarding the sum of N5,000,000.00 (Five million Naira) to the plaintiff as general and exemplary damages against the defendant.

XIII. Plus the cost of this action. ”

Just by way of brief summary of facts, the Respondents in this appeal were the Plaintiffs at the trial Court. The Respondents in a bid to secure a contract for the renovation and operation of Hostel for a period of ten years at the Polytechnic Ibadan obtained a credit facility with the Appellant to the tune of N12,000,000. The Appellant despite being aware of the 5% remittance to the Polytechnic allegedly failed to remit same. As a result of Appellant’s failure to remit the 5%, the polytechnic in a letter dated 15th June, 2004 terminated the contract with the Respondents.

The Appellant’s case was that a loan of N12,000,000 was granted to the plaintiffs/Respondents for the renovation of Olori and Ramat Hostels of the polytechnic Ibadan and that it was not a signatory to the agreement between the polytechnic and the Respondents. The Appellant alleged that the management of the 2 hostels were given to the Appellant by the management of the Polytechnic Ibadan being the guarantor of the loan facility to the plaintiffs after the revocation of the contract between the plaintiffs and the polytechnic.

The Respondents as plaintiffs approached the High Court of Oyo State, Ibadan to seek redress. At the close of the trial, the trial Court granted the reliefs of the Respondents in part and awarded the sum of N20,000,000 (Twenty million Naira only) as damages and a further sum of N234,275.79 (Two hundred and thirty-four thousand, two hundred and seventy-five Naira seventy-nine Kobo) Also the Court granted 10% of the judgment sum until it is finally liquidated.

The Appellant became aggrieved by the decision and therefore filed Notice of appeal at the lower Court in Ibadan on the 2nd day of July, 2010

The Appellant’s appeal was heard, determined and dismissed by the lower Court. The Appellant further appealed to this Court.

Learned Counsel for the Appellant Kolawale Esan, Esq filed the Appellants brief of argument on the 24th day of October, 2016, in the Appellant’s brief, learned Counsel nominated the following issues for determination.

1. Whether the Court of appeal was not in error in its decision when consideration was only given to the notice of appeal dated 2nd July, 2010 containing three grounds of appeal instead of the amended notice of appeal dated 7th May, 2012 containing 11 (eleven) grounds of appeal filed pursuant to the order of the Court of appeal dated 30th day of April, 2012. Ground 1
2. Whether the Court of appeal was not in error in not considering the argument of the appellant on the issue of the arbitral award which was canvassed in the appellant’s amended notice of appeal filed on 7th May, 2012 pursuant to order of the Court of appeal dated 30th April, 2012 granting leave to the appellant to canvass this point on appeal. (ground two)
3. Whether the Court of appeal was not in error when consideration was given to only 4 (four) issues instead of nine issues formulated and properly placed before the Court of appeal by the appellant and whether the Court of appeal was not in error in relying on the law of tort in affirming the decision of the trial Court? (ground 3)
4. Whether the award of the cost of N100,000.00 (One hundred thousand Naira) against the appellant was not excessive in the circumstances

​The learned counsel for the Respondents filed a brief of argument of the Respondents on the 23rd February, 2021, he formulated corresponding four issues for determination. The issues are reproduced as follows;

I. “Whether the Court of appeal was not right in handing down its decision in favour of the respondents by affirming the judgment of the trial Court formulating its own issues different from that of the appellant and the respondent in arriving at the Court’s decision. (Distilled from ground one of the notice of appeal)

II. Whether the issue of arbitral award can be raised when such did not form part of the decision of the lower Court. (Distilled from ground 2 of the notice of appeal)

III. Whether there is a breach of banker/customer relationship between the appellant and the respondents. Distilled from ground 3 of the notice of appeal.

IV. Whether the Court of appeal was not right in awarding the sum of N100,000 (One hundred thousand Naira) as cost in this case. Distilled from ground four of the notice of appeal.

SUBMISSIONS OF COUNSEL FOR THE APPELLANT

ISSUES ONE AND THREE

Learned counsel began his argument by submitting that the lower Court was in grave error when it gave consideration to the three grounds of appeal contained in the original notice of appeal, thereby ignoring inadvertently the 11 grounds of appeal contained in the amended notice of appeal filed on the 7th day of May, 2012.

Learned counsel submitted that the original notice of appeal against the judgment of the trial Court in this appeal contains three grounds of appeal, however, upon receipt of the record of appeal and perusal of the original notice of appeal, the Appellant filed a motion on notice dated 15th April, 2011 wherein the Appellant sought for leave to amend the notice of appeal filed on the 30th day of June, 2010 to substitute and to extend the grounds of appeal to nine. Learned counsel also sought for leave to canvas new points not raised in the Court below. Learned counsel submitted that upon hearing the motion on the 30th April, 2021, all the prayers were duly and accordingly granted. Learned counsel submitted that upon granting the prayers, the Appellant filed the amended notice of appeal on the 7th day of May,2012.

​Learned counsel for the Appellant then submitted that the lower Court erroneously used the notice of appeal filed on the 2nd day of July, 2012 as against the amended notice of appeal filed on the 7th day of May, 2012. Learned Counsel for the Appellant referred to the judgment of the lower Court at page 407 of the records of appeal, the judgment of the lower Court, the lower Court Counsel said referred to the Notice of appeal filed on the 2nd day of July, 2010. Learned Counsel submitted that the failure by the lower Court to refer to competent Amended Notice of appeal filed on the 7th day of May, 2017 amounts to denial of fair hearing and occasioned miscarriage of justice. Learned Counsel said the grounds considered by the lower Court were not the grounds of appeal of the Appellant, and that the lower Court inadvertently ignored eight of its grounds of appeal.

Learned Counsel for the Appellant said the lower Court had a duty to ensure that the Appellant’s appeal was not heard on incomplete records, relying on the decision in OSAHON V. FRN (2003) 16 NWLR (Pt. 845) 89 Pg. 114, BRONIK MOTORS LTD V. WEMA BANK LTD (1983) 1 SCNLR 296, BARCLAYS BANK NIG LTD V. CENTRAL BANK OF NIGERIA (1976) 6 SC 1751 and EKPEMUPOLO V. EDREMODA (2009) 8 NWLR (Pt. 1142) 166 Pg. 196-197.

​Learned Counsel for the Appellant said the lower Court failed to consider its own records where it granted the Appellant leave to amend the original notice of appeal, Counsel submitted that both parties and the Court are bound by the records, in support of this submission Counsel relied on TEXACO PANAMA INCORP (OWNERS OF THE VESSEL MV STAR TULSA V. SHELL PET DEV CO NIG LTD (2002) 5 NWLR (Pt. 759) 209 at 234, SOMMER V. FHA (1992) 1 NWLR (Pt. 219) 548, 557-558. Learned Counsel for the Appellant also said the four issues for determination considered by the lower Court did not arise from the three grounds of appeal filed on the 2nd day of July, 2010, he said the extant notice of appeal was the one filed on the 7th day of May, 2012. Appellant said they had eleven grounds of appeal and nine issues for determination. Counsel contended that there was clear breach of fair hearing by the lower Court he therefore urged this Court to resolve this issue in favour of the Appellant and declare the decision of the lower Court a nullity.

ISSUE TWO

On the second issue for determination, learned counsel submitted that the lower Court erred in law when it held that the first issue raised by the Appellant relate to the arbitral award given in a previous proceeding which was not enforced or was abandoned by the parties.

Learned counsel submitted that the Court of appeal erroneously failed to note that the Appellant indeed sought for and obtained leave of the Court of appeal to canvass new point on the issue of arbitral award through a motion dated 15th April, 2011. Counsel further submitted that on the 30th April, 2012 when the Appellant’s motion was taken, the lower Court granted all the prayers on the face of the motion.

Learned counsel added that the issue on jurisdiction based on the arbitral award to the Respondent which the Court of appeal failed to consider is a question of law to which this Court has the power to pronounce on relying on UKATTA V. NDINAEZE (1997) 4 SCNJ pg. para 20-25. Learned Counsel urged this Court to resolve this issue in favour of the Appellant against the Respondents.

ISSUE FOUR

Learned counsel stated that the Court of appeal was clearly in error and decided contrary to the principle governing the award of costs when it awarded the sum of N100,000.00 (One hundred thousand Naira) as cost in favour of the Respondents. Counsel further submitted that even as the Court has absolute and unfettered discretion to award costs, the discretion must be exercised judicially and judiciously. Where the discretion is not exercised properly, the appellate Court can interfere and make necessary corrections if so doing is found to be just and appropriate.

Learned counsel submitted that in awarding costs, the lower Court did not state reasons for its award, there were no unreasonable expenses incurred by the Respondents to warrant the award of costs.

Learned counsel cited the cases ofREWANE V. OKOTIE EBOH (1960) 5 SC 200 at 2011 LAYINKA V. MAKINDE (2002) 10 NWLR (pt. 775) at 358, NBCI V. ALFIJIR (MINING) NIG. LTD (1999) 14 NWLR (pt. 638) 176.

Learned counsel finally urged the Court to resolve all the issues in favour of the Appellant against the Respondents and allow the appeal.

SUBMISSIONS OF COUNSEL FOR THE RESPONDENTS’

ISSUE ONE

Learned counsel for the Respondents began by citing the case of UNITY BANK PLC V. BOUARI (2008) ALL FWLR (pt. 416) 1825 at 1847 to argue that appeals are always determined on issues formulated for determination and not on the grounds of appeal.

Learned counsel submitted that the argument of the Appellant to the effect that the lower Court failed to consider the amended notice of appeal filed on the 7th May, 2021 is tantamount to challenging the record of proceedings of the lower Court.

Learned counsel submitted that the law is settled that where a party is dissatisfied with the records of the Court, such party ought to swear to an affidavit setting out the facts or part of the proceedings omitted or wrongly stated in the record and go ahead to serve the relevant Judge or the registrar of the Court. Counsel further submitted that the Appellant having failed to challenge the proceedings of the Court of Appeal cannot complain that the proceedings were incomplete. Counsel cited and relied on the decision in ADEGBUYI V. APC LPELR 24214 (SC) p. 18-19.

Learned counsel submitted that the Appellant at page 9 of the Appellant’s brief of argument argued that the Court of appeal did not make pronouncement on all the issues formulated by the Appellant at the lower Court, counsel submitted that the lower Court is at liberty to formulate its own issues for determination in its judgment as are relevant to the appeal before the Court. Learned counsel cited the decision in SHA V. KWAN (2000) ALL FWLR (pt. 11) 1998 at 1815., POROYE & ORS V. MAKARFI & ORS (2017) LPELR-42738 (SC) p.54 and UNITY BANK PLC V. BOUARI (supra) to support this submission.

Learned counsel submitted that it is trite law that the Supreme Court does not interfere with concurrent findings of facts of the two lower Courts except the decisions are perverse, not supported by evidence or the decision has occasioned miscarriage of justice. Counsel relied on the in FRN V. MAISHANU (2019) LPELR-46380 (SC) P. 38

Learned counsel submitted that the Appellant in this appeal has not demonstrated the special circumstance that will warrant the intervention of this Court, he therefore urged this Court to resolve this issue in favour of the Respondent against the Appellant.

ISSUE TWO

Submitting on this issue, learned counsel submitted that the learned trial Judge in his findings of facts only made reference to an arbitral award at page 289 of the record of appeal. Counsel further submitted that the arbitration ensued only between the Respondents and the polytechnic of Ibadan and that Appellant was not a party to it.

Learned counsel contended that arbitration is rooted in the principle of the privity of contract to the extent that only a party to an arbitral proceeding can bring an action to enforce the resultant award that emanates from such arbitral proceedings. Learned counsel again contended that there is nowhere in the records of appeal that showed an arbitration agreement between the Appellant and the Respondents or where the Appellant submitted itself to an arbitration with the Respondents to which an award was rendered. Learned counsel further contended that only a party to an arbitral proceedings can bring an action to enforce the arbitral award that emanates therefrom, the Appellant having failed to participate in the arbitration proceedings cannot by law raise the issue.

​Learned Counsel finally submitted that the lower Court was right having refused to consider the issues bordering on the arbitral award when there was no evidence in the record of appeal before the Court to show that the Appellant obtained leave before canvassing argument on it. Learned Counsel urged this Court to resolve this issue in favour of the Respondents against the Appellant.

ISSUE THREE

Learned Counsel submitted that the relationship that exists between the Appellant and Respondents in this appeal is that of Banker customer relationship. He submitted that the Appellant owed the Respondents a duty of care and that the refusal of the Appellant to remit the Polytechnic Ibadan the agreed 5% commission on yearly earnings of the Respondents from the management of the hostels led to the termination of Respondents’ contract with the polytechnic.

Learned counsel submitted that from the facts of the case, the decision of the trial Court as well as that of the Court of appeal and the various decided cases cited which explained the relationship between a bank and its customer that the Appellant is in such awful breach of the uberima fidae (utmost good faith) principle required of a bank to its customer, counsel urged the Court to so hold, and resolve this issue in favour of the Respondents against the Appellant.

ISSUE FOUR

Learned counsel for the Respondents submitted that it is trite law that costs follow events, therefore, the successful party in a civil litigation is entitled as of right to cost. Counsel further submitted that the award of cost is at the discretion of the Court which is exercised judicially and judiciously.

He submitted that the award of N100,000 (One hundred thousand Naira) as cost is not excessive particularly since it is an appeal that emanated from the judgment of the trial Court. Counsel submitted that the Respondents in this case are entitled to cost at the Court of appeal, he urged this Court to so hold and resolve this issue in favour of the Respondents against the Appellant

RESOLUTION

The crux of the Appellant grievance here is that the lower Court failed to take cognizance of the amended notice of appeal containing 9 grounds of appeal, instead, considered for the determination of the appeal, the original notice of appeal which has 3 grounds of appeal. Learned counsel for the Appellant contended that such action of the lower Court amounted to denial of fair hearing which resulted in a miscarriage of justice. It is never in contention that the lower Court considered the notice of appeal filed on the 2nd July, 2010, which has 3 grounds of appeal. At page 407 of the record of appeal, the lower Court made reference to the said notice of appeal thereby itemising the 3 grounds of appeal mentioned therein.

Learned counsel for the Appellant submitted that the motion seeking to amend the notice of appeal was taken on the 30th April, 2012 and all the prayers contained therein were granted, consequently, the Appellant filed the amended notice of appeal. At page 313 of the record, a copy of the amended notice of appeal can be found.

The question now is why did the lower Court fail or neglect to take cognizance of the amended notice of appeal, could it be an oversight, mistake or any other reason, I must conclude that whether deliberate or inadvertent, that must be left to the lower Court, what is obviously certain is that, the Court bungled the proceedings. The action of the lower Court which is patently glaring constitutes a clear denial fair hearing.

It is settled principle of law that Courts are bound by their records.

This Court in OGOLO V. FUBARA (2003) 11 NWLR (pt. 831) held as follows and I quote;

“an appellate Court is always bound by the record and the record only. It has no jurisdiction to go outside the record to draw conclusions which are not supported by record. Accordingly, where the conclusion of the Court of appeal is not borne out of the record, the Supreme Court is competent to interfere as such conclusion is perverse…”

In the instant case, the Appellant filed a motion seeking to amend notice of appeal, and the said motion was granted by the lower Court. Therefore, the lower Court is bound to use the amended notice of appeal and not the original notice of appeal. Any decision taken by the lower Court disregarding the amended notice of appeal would be perverse and this Court is allowed to interfere and set it aside. Failure to premise its decision on the amended Notice of appeal and the new issues crafted and submitted for determination would constitute a flagrant disregard to the right of the Appellant to fair hearing.

The law is well settled that once there is denial of fair hearing. The only order this Court can make is one of retrial or rehearing before the lower Court to enable the Appellant be properly heard on the issue.

See OTAPO V. SUMONU (1987) 12 NWLR (Pt. 58) 587; RASAKI SALU v. MADAM TOWURO EGEIBON (1994) 6 NWLR (Pt. 348) 23; ALHAJI SANI ABUBAKAR DANLADI V. BARR. NASIRU AUDU DANGIRI & 6 ORS. (2015) 2 NWLR (Pt. 1442) 124 and ONUWA KALU V. STATE (2017) 14 NWLR (Pt. 1586) 523 at 547.

This Court in KALU V. STATE (2017) LPELR-42101 (SC) held as follows and I quote;

“once there is a breach of the right of fair hearing, the whole proceedings in the course of which the breach occurred and the decision arrived at by the Court become a nullity. Audu v FRN (2013) LPELR-19897 (SC) 13; D-F; Akinfe v. The State (1988) 3 NWLR (pt. 85) 729, 753; Bamgboye v. University of Ilorin [1999] 10 NWLR (Pt. 622) 290, 333.”

See also NUT TARABA STATE & ORS V. HABU & ORS (2018) LPELR-44057 (SC).

The denial of fair hearing to a party is fatal, it renders the proceedings null and void: AKINFE v. THE STATE (1988) 3 NWLR (Pt.85) 729 at 753; ADIGUN v. ATTORNEY-GENERAL, OYO STATE (1987) 1 NWLR (Pt.53) 678; SALU v. EGEIBON (1994) 6 NWLR (Pt.348) 23 at 44; BAMGBOYE v. UNIVERSITY OF ILORIN (1999) 10 NWLR (Pt.622) 290 at 333.

​Where there is denial of fair hearing, miscarriage of justice is presumed to have been occasioned to the party denied fair hearing. Again, where it is shown as in the instant appeal that the lower Court manifestly misunderstood the processes of the Appellant and went ahead to erroneously rely on wrong processes to determine the Appellant’s appeal, this is a clear case of denial of fair hearing, this Court must as a matter of duty declare such decision a complete nullity. This Court in OVUNWO & ANOR V. WOKO & ORS, (2011) LPELR-2841 (SC) per CHUKWUMAH ENEH, JSC (of blessed memory) held as follows:

“As a corollary, a proper interpretation or construction of the provisions of Section 36(1) of the 1999 Constitution (as amended) will show that the right of fair hearing extends beyond merely affording the parties a hearing but also includes a proper consideration and determination of the issues canvassed by the parties before the Court. But can a Court consider the issues without hearing from the parties?

Where a Court of law, without hearing the parties, proceeds to consider the issues in the matter and delivers a judgment it is clear that the parties were denied fair hearing. There is no doubt that fair hearing is in most cases synonymous with natural justice, an issue which clearly is at the threshold of our legal system. Once there is a denial of fair hearing as guaranteed under Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), the whole proceedings automatically become vitiated with a basic and fundamental irregularity which renders them null and void. See OJENGBEDE v. ESAN (2001) 18 NWLR (Pt. 746) 771; OTAPO v. SUMMONU (1987) 2 NWLR (Pt. 58) 587; WILSON V. ATTORNEY GENERAL OF BENDEL STATE (1985) 1 NWLR (Pt. 4) 572.”

In the light of the foregoing therefore, I resolve issues No. 1 and 3 in favour of the Appellant against the Respondents and declare the judgment of the lower Court a nullity.

On the whole therefore the judgment of the lower Court delivered on the 2nd day of December, 2015 in Appeal No. CA/I/93/2011 is hereby declared a nullity and is accordingly set aside. The said appeal is hereby remitted to the President Court of Appeal to constitute a fresh panel of Justices to hear and determine the appeal on the merit.

Parties shall bear their respective costs.

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SC.299/2016