3PLR – ARC. OLUCHUKWU ODEGA V. AUGUSTINE OLLOH 

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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ARC. OLUCHUKWU ODEGA

V.

AUGUSTINE OLLOH 

IN THE COURT OF APPEAL OF NIGERIA

ON WEDNESDAY, THE 25TH DAY OF MARCH, 2015

CA/B/322/2013

LN-e-LR/2015/18 (CA)

 

 

OTHER CITATIONS

(2015) LPELR-24568(CA)

 

BEFORE THEIR LORDSHIPS

HELEN MORONKEJI OGUNWUMIJU, JSC

HAMMA AKAWU BARKA. JSC

UGOCHUKWU ANTHONY OGAKWU, JSC

 

BETWEEN

ARC. OLUCHUKWU ODEGA – Appellant(s)

AND

1. AUGUSTINE OLLOH – Respondent(s)

 

REPRESENTATION

Chike Onyemenam SAN with S. I. Abudei – For Appellant

AND

Chief J. O. Offor – For Respondent

 

MAIN ISSUES

1. LAND LAW/REAL ESTATE: Statutory right of occupancy – order for dispossession, injunction against trespass and damages – use of accelerated hearing in land matters – need to observe fair hearing – effect of failure thereto
2. CONSTITUTIONAL LAW – FAIR HEARING: Section 36 of the 1999 Constitution – Meaning of fair hearing dependent on the entire circumstances of each case – Test of determining whether court observed fair hearing – Dependence of fair hearing on fair trial – effect of non-compliance thereto
3. ETHICS – LEGAL PRACTITIONER: Failure of appellate brief to distil any issue for determination – attitude of court thereto
4. ETHICS – COURT: perverse judgment – miscarriage of justice due to abuse of discretion of court by judge – abuse of court’s power to act suo motu –gross disregard of the essence of collective moral subjection to constituted authority by judge – display of contempt for judicial gravity leading to rushed judgment and crushed justice – Neglect of the dictum: “To qualify as a just trial under Section 36 of the Constitution, the hearing must be seen to be impartial, dispassionate, non-discriminatory, even-handed, reasonable and rational”
5. PRACTICE AND PROCEDURE -COURT – DISCRETION OF COURT: duty of court to exercise discretion judicially, judiciously and equitably guided by the spirit and principles of the law – attitude of appellate court to improper exercise of court discretion
6. PRACTICE AND PROCEDURE – ACCELERATED HEARING AND FAIR HEARING: Basic principles of fair hearing to be observed in ordering accelerated hearing – constitutional and other relevant standards which are non-negotiable in the use of accelerated proceedings – effect of failure to observe fair hearing rules on outcome of accelerated hearings
7. PRACTICE AND PROCEDURE – RECORD OF PROCEEDINGS: Nature and effect of record of proceedings – obligation of appellate court not to depart from record of proceedings before it – Attitude of court to counsel’s story not captured in the record of proceedings
8. PRACTICE AND PROCEDURE – SERVICE OF HEARING NOTICE: Fair hearing and fair practice – purpose of service of a hearing notice on a party and effect of failure to serve same – effect of failure to notify party of slated hearing on outcome of proceedings
9. WORDS AND PHRASES – “MISCARRIAGE OF JUSTICE”: Meaning – Effect thereof on judicial outcomes What amounts to miscarriage of justice

 

 

 

MAIN JUDGMENT

HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment):

This is an appeal against the Judgment of the High Court of Delta State delivered by Hon. Justice T. C. Makwe, on the 05/03/13 wherein the learned trial Judge granted the claims of the Respondent as he found same to be meritorious.  The following are the facts that led to this appeal:

 

The Respondent as Plaintiff commenced the action by issuing a writ of summons filed on the 29/03/11 against the Appellants. In the Statement of Claim filed on 29/03/11 he asked for the following reliefs:

1. An order that the claimant is the person entitled to statutory right of  occupancy over the piece or parcel of land measuring approximately 1.871 hectares lying, being and situate along prince Ikechukwu Iyeke way, behind golf course, Umudaike family land Asaba Oshimili South Local Government Area, Asaba, Delta State.
2. An order that the defendant’s claim of possession and ownership over the said parcel of land is null, void and of no effect whatsoever.
3. An order of perpetual injunction restraining the defendants, his privies and agents from his/their trespass unto the parcel of land aforesaid.
4. N100,000,000.00 (One Hundred Million Naira only) being general damages against the defendant as a result of his trespassory acts/injuries occasioned on the said land.
5. N25,000,000.00 (Twenty Five Million) being cost of reconstruction of another wall fence round the said parcel of land.

 

The Statement of Defence was filed on 14/11/11 deemed filed on 24/11/11.  At the Pre-Trial Conference on 22/03/12 both parties and Counsel agreed to adjourn the case to 23/04/12 for report of settlement.

 

On the 23/04/12 the Counsel for the Appellant informed the Court that settlement between the parties had broken down and the case was subsequently adjourned to 31/05/12 for Hearing. On the 5/3/13 after an adjournment on the request of the Appellant’s Counsel, the Trial Court granted accelerated hearing of the suit, admitted written and oral evidence from the Respondent and gave leave to the Respondent to deliver his final address and summarily delivered the Judgment.

The Appellant not satisfied with that decision has appealed to this Court.  The Appellant filed a Notice of Appeal on the 06/03/13. The Appellant’s brief of argument is dated 18/09/13 filed 19/09/13. The Respondent’ brief of argument is dated 30/9/13 filed 02/10/13.

In the brief settled by Chike Onyemenam now SAN, the Appellants raised one issue for determination:

WHETHER THE LEARNED TRIAL JUDGE’S HEARING AND DELIVERY OF FINAL JUDGMENT IN THE SUBSTANTIVE SUIT IN THE ABSENCE OF THE APPELLANT AND HIS COUNSEL WAS IN VIOLATION OF THE APPELLANT’S CONSTITUTIONAL RIGHT TO A FAIR HEARING, THUS OCCASIONING A GRAVE MISCARRIAGE OF JUSTICE ON THE APPELLANT.

It is noteworthy to state here that the Respondent’s brief settled by Chief James O. Offor had an introduction and statement of facts without distilling any issue. It is very peculiar process indeed. Arguments were not formally canvassed in the brief but some form of argument was proffered on the Issue identified by Appellant’s counsel. There is no doubt that Respondent’s brief is in violation of Order 18 R 3 (3) and Order 18 (4)(2) for not submitting an issue for determination. However, it is my humble view that notwithstanding this shortcoming and the inelegance of the brief, it is expedient in the interest of justice to also consider it in the determination of this appeal.

SOLE ISSUE

WHETHER THE LEARNED TRIAL JUDGE’S HEARING AND DELIVERY OF FINAL JUDGMENT IN THE SUBSTANTIVE SUIT IN THE ABSENCE OF THE APPELLANT AND HIS COUNSEL WAS IN VIOLATION OF THE APPELLANT’S CONSTITUTIONAL RIGHT TO A FAIR HEARING, THUS OCCASIONING A GRAVE MISCARRIAGE OF JUSTICE ON THE APPELLANT.

On this sole issue, the Appellant’s counsel argued that hearing and delivery of final judgment in a land case by the Trial court against the Appellant in one sitting in the absence of the Appellant occasioned a grave miscarriage of justice. He argued that Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides that a court shall be constituted in such a way as to secure its independence and impartiality and guarantees every citizen’s right of fair hearing. Counsel submitted that the Appellant applied to the trial Judge to disqualify himself from hearing the substantive case on the ground that he would not likely get a fair trial since the learned trial Judge had concluded at pre hearing session that the Appellant that he was not the rightful owner of the land and suggested that the Appellant pay N3,000,000.00 (Three Million Naira) to the Respondent. The Appellant filed motion on 3/10/12 urging the Court to disqualify itself. The motion was refused. The Appellant filed notice of appeal to this court on 3/12/12. Appellant also applied to the trial court for a stay of further proceedings. He contended that on the 5/3/13, the date fixed for the hearing of the motion for interlocutory injunction, the Court suo motu moved the said motion for stay filed the previous day and in the absence of the Appellant, dismissed same, heard the motion for injunction, granted suo motu accelerated hearing on the substantive suit, summarily heard the substantive suit and summarily delivered judgment in a land case, in the same sitting all in the absence of the Appellant and his counsel.

Counsel argued that the trial court denied the Appellant his right to be heard under the Constitution and under the doctrine of Audi alteram, demonstrating contempt for the Appellant. He further argued that the trial court in a rush to present a situation of fait accompli viz-a-viz the Appellant’s Appeal forgot he ordered accelerated hearing suo motu of the substantive matter on the said 5/3/13 in the absence of the Appellant and ought to have fixed the said hearing days and notify the Appellant, who was unaware until the judgment was entered.

Appellant’s counsel submitted that the Respondent hurriedly testified and abandoned 3 or 4 witnesses whose witness disposition he had frontloaded, and in a desperate bid to conclude the said case on the same date forgot that after a plaintiff closes his case, the defendant is called upon to open his defence, and so the defendant was not even called upon for the trial court to record the fact that he failed to do so. Counsel insisted that the case was not fixed for hearing on that day, but instead the learned trial judge suo motu granted the Respondent leave to deliver his final address orally instead of by way of a written address as provided for in Order 31 Rules 1-5 of the High court of Delta State (Civil Procedure) Rules 2009. The Court then delivered a bench judgment on the spot against the Appellant.

 

Counsel posited that in the hearing of a case and delivery of final judgment in a manner which deprived a party the opportunity to present his case, no matter how weak the said case may be in the eyes of the trial Court amounts to a denial of the Defendants constitutional right to a fair hearing, thus rendering the hearing and judgment obtained under such circumstances null and void and liable to be set aside. Counsel cited Chukwuma V. F.R.N (2011) All FWLR (Pt 585) Pg 231 at 247; Otapo V. Sunmonu (2011) ALL FWLR (Pt 576) Pg 419 at 460, Pan African Int. Inc. V. Shoreline Lift Boats Ltd (2010) All FWLR (Pt 524) Pg 56 at 65; Imonikhe V. Unity Bank Plc (2011) All FWLR (Pt 586) Pg 423 at 441.

The gist of the Respondent’s counsel convoluted argument on this issue is that the Appellant adopted delay tactics to delay the trial and frustrate justice. Counsel argued that at the trial Court when the Appellant neglected/failed to enter Appearance and file his statement of Defence at the expiry of the mandatory period, the Respondent had to file a motion on Notice pursuant to order 20 of the Delta State (Civil Procedure) Rules 2009, for an Order entering judgment against the Appellant and for default of defence on the 21/06/11. On the 14/11/11 the Appellant filed his motion on notice for extension of time to file his memorandum of appearance with his statement of defence, Pre-Trial Conference was held 22/3/12 and on 5/3/13. Respondent’s counsel complained that the Appellant continued his wicked tactics to frustrate the trial by being absent from Court. He argued that the learned trial Judge refused the motion to recluse himself and the motion for interlocutory injunction and in the interest of substantial justice ordered accelerated hearing. He submitted that a counsel from the chambers of the Appellant was in court and witnessed these proceedings, and disappeared as the court ordered hearing to commence.

Counsel contended that since the Appellant had abandoned all their processes in the case, with leave of court the Respondent addressed the Court orally and the court proceeded to judgment.  Counsel argued that the Appellant’s right to fair hearing was never violated and did not occasion any miscarriage of justice as the rules of court  vital to the speedy administration of justice must be obeyed.  He further argued that since the Appellant’s counsel agreed with the Respondent’s Counsel on the next date of hearing he cannot be heard to complain that he was not given a fair hearing, particularly as he never applied for an adjournment. Counsel cited Senator Amanga Nimi Barigha V. P.D.P & 2 Others (2013) MSCJ Vol XV Pg 29 at Pg. 35.  Counsel insisted that a counsel from Appellant’s chamber was in court but disappeared when proceedings started.

Let us begin by looking closely at the circumstances of this case to glean what actually happened on the 5/3/13 at the trial court. This can be found at Pages 206-207 of the Record. The pertinent portion is set out below:

“Claimant present.
Defendant absent.

Chief J.O. Offor appears for the claimant
Court: The motion on notice filed on 04/03/2013 served on Chief Offor this morning in the open court is taken as moved.

Chief Offor does not oppose the motion.  He urges court to grant it.
Court: Ruling:

Time is extended to today to enable the Defendant file a written address in opposition of the motion for interlocutory injunction.

The said written address attached to the affidavit in support of motion is hereby deemed properly filed and served.

Chief Offor further says that he has just been served now another motion filed on the same date yesterday 4/3/2013 for stay of proceedings and that he is prepared to take it.

Court: The motion on notice for stay of proceedings filed on 4/3/2013 is taken as moved.”

 

What is most amazing about this proceeding is that there is nothing on the record to show that Hearing Notice was served on the Appellant or his counsel and they were both absent without explanation.  This is borne out of the fact that on the previous date of adjournment as shown on Pg.192 of the record being 20/2/2013, the Appellant and his counsel were absent. Appellant’s counsel had written to seek for adjournment to attend a Bar meeting.  The case was adjourned by the learned trial judge but the record does not show that any order was made for hearing notice to be issued on the Appellant’s counsel.

The inescapable position of the law is that the Appellate Court is bound by the record of proceedings before it and cannot depart from it on the ipsi dixit of counsel or on speculation. Records of proceedings are the only indication of what took place in a Court, it is always the final reference of events, step by step of what took place in a court.  See Olaniyan v Oyewole (2008) 5 NWLR Pt 1079 Pg 114 at Pg 132. The story of the Respondent’s counsel which is not supported by the record of appeal before this Court is solely to throw dust into the eyes of this Court. Needless to say, the story cannot fly in the face of the record before this Court.

Service of hearing notice is imperative where a party is not present in court or duly represented. See  Somisonkahonlor Co. (Nig) V. Adzede (2001) FWLR (Pt 68) 1104. Failure to notify the party of the hearing of the matter renders the proceedings null and void as the court lacks jurisdiction to entertain the matter. Let me state it clearly that the issuance of a Hearing notice on a party is to intimate him of the hearing date which is very fundamental to administration of justice as it confers on the trial Court the jurisdiction to entertain the matter. It is not for the Court to assume that the party must have been served the hearing notice or that he is aware of the date.

In this case, after the case was called, the learned trial judge moved the motion for extension of time filed the previous day by the Appellant and which was just served on the Respondent’s counsel in open court.  The motion for extension of time to file written address against the application for interlocutory injunction not being opposed by Chief Offor (Plaintiff’s counsel) was granted.  The written address attached to the motion was deemed properly filed and served even though the prayers on the face of the motion paper did not include a deeming order.  The learned trial judge did not stop at that.  The court went further to move a motion for stay of proceedings which was filed a day earlier by the Appellant.  After hearing Respondent’s counsel’s opposition to it, the court refused the application as lacking in merit.  Learned counsel for the Respondent, Chief Offor then moved his two motions for interlocutory injunction filed on 29/03/2012 and 28/06/2012 respectively.  The court heard the arguments of learned Respondent’s counsel, refused the applications “in the interest of substantial justice” and ordered accelerated hearing of the case.

On the same day, without so much as time to draw breath, the claimant opened and closed his case having given sole evidence in proof of his claim.  Learned Respondent’s counsel addressed the court.  The learned trial judge entered judgment by giving a bench judgment granting the declaratory and other reliefs sought by the Respondent.  In the first instance, unless a date had been given to the motions filed by the Appellant’s counsel and communicated to him, the motions ought not to have been heard in his absence without prior notice.  Secondly, after an order of accelerated hearing was made, the Appellant’s counsel should have been served with hearing notice of the next date of adjournment and an enrolled order of the court in respect of the order of accelerated hearing since neither he nor his client were in court when the order was made.

In the circumstances of this case, I have to consider whether the learned trial judge’s actions in the exercise of his discretion occasioned miscarriage of justice.  Discretion of a Court or Judge is the power or right conferred by the law on a court in acting in certain circumstances, according to the dictates of the judge’s or court’s own judgment and conscience, uncontrolled and unfettered by the judgment or conscience of others.  See Suleiman v. Commissioner of Police (2008) 3 SCNJ 1 at 9 – 10. Therefore, the exercise of a court’s discretion depends upon the peculiar facts and circumstances of each particular case.  See: ICAN  v. Attor. Gen. Federation (2004) 3 NWLR (Pt. 859) 186; Nicon Hotel Inter. S.A. v. Nicon Hilton Hotels & Anor. (2007) 7 NWLR (pt. 1032) 86 at 113 – 114.
It should be noted that with the enormous power entrusted to the judge or court, in exercising its discretion, it cannot so exercise the discretion on a hunch or capriciously.  This court, in Siat S.A. Brussels v. S. See Ltd (2009) 17 NWLR (pt. 1171) 525 at 544 per my Lord, Rhodes-Vivour, JCA (as he then was) had admonished that:

“Exercise of discretion does not entail the Judge acting as he likes.  It entails the Judge acting judicially and judiciously, that is with sufficient, correct and convincing reason.”

 

Furthermore, the apex court in Lupex v. N.O.C. & S Ltd (2003) 15 NWLR (pt. 844) 469 at 488 held inter alia, that:

“Judges and courts exercise their discretion in accordance with rules of law and justice and not according to private opinion.  An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law.”

 

There is no doubt that in this case, I have to say with the greatest respect to the learned trial judge that the unsolicited rush to justice was not a proper exercise of his Lordship’s discretion.  The court may have been exasperated by the seeming indolence of the Appellant in defending the claim, however a rush to judgment in this case has amounted to justice crushed.

The learned trial Court was competent to exercise its discretion to refuse the motions for interlocutory injunction and Order accelerated hearing. With respect, it is obvious that what is wrong and smacks of high handedness and disregard for the rules of proper administration of justice is the error of not fixing the dates for the accelerated hearing and effecting hearing notice same on the Appellant.  It is clear to any reasonable person, that due to the absence of the Appellant and his counsel they were unaware of the order of accelerated hearing made on 5/3/13 to hear the substantive suit. The trial court misdirected itself in law and contravened S.36 of the 1999 Constitution which guarantees the right of the parties to so present their cases.

 

I have to say that in the resolution of this case, it is important to point out that  the essence of collective moral subjection to constituted authority is that justice must not only be done but must be seen to be done. To qualify as a just trial under Section 36 of the Constitution, the hearing must be seen to be impartial, dispassionate, non-discriminatory, even-handed, reasonable and rational.  The decision of the learned trial judge to order accelerated hearing suo motu and proceed upon same in the absence of the Appellant is incredible to say the least. Any procedure that puts a party at a juridical disadvantage fails to ensure fairness. The procedure adopted and the reasons given by the learned trial judge is with the greatest respect in gross violation of Sec. 36 (4) (5) (6) d of the 1999 Constitution.

 

In Pam v. Mohammed (2008) 16 NWLR Pt. 1112 Pg. 1 at Pg 48, the Supreme Court held as follows:

“The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case. The crucial determinant is the necessity to afford the parties equal opportunity to put their case to the court before the court gives its judgment……….”

 

It is usually counter -productive in the dispensation of justice to jump the gun to ignore the rules of fair hearing.  It is the duty of the Court to satisfy itself that all parties have notice of all the processes to be considered by the court and hearing notice of the day’s hearing before proceeding to hear any party.  Since Justice must not only be done but must be seen to be done, a court must clearly note in its record if it is satisfied that hearing notice had been served on the adverse party.  The court must go the extra mile to satisfy itself that hearing notice was served before proceeding to hear any party.

 

Any judicial officer who ignores or makes light of this important procedure does violence to one of the twin pillars of natural justice -audi alteram partem (hear the other side).  Any decision arrived at would be a nullity as the court lacks jurisdiction in the absence of one of the parties.  Section 36 of the Constitution provides for fundamental human rights.  The import of this section is that to qualify as a fair trial, there must be fair hearing.  Fair hearing must be impartial, dispassionate just, non discriminatory, open minded, even-handed, fair minded, reasonable and rational. The validity of a trial is not dependent on the result of the trial but on the fairness of the process of hearing.

 

The effect of the failure of the learned trial judge to ensure fair hearing is to render the proceedings and judgment delivered on 5th day of March, 2013 null and void and liable to be set aside.  See Chukwuma v. FRN (2011) All FWLR Pt. 585 Pg. 231 at 247-258; Otapo v. Sunmonu (2011) All FWLR Pt. 576 Pg. 419 at 460; Pan African Int. Inc. v. Shoreline Lift Boats Ltd. (2010) All FWLR Pt. 524 Pg. 56 at 65 and Imonikhe v. Unity Bank Plc (2011) All FWLR Pt. 586 Pg. 423 at 441.

In the circumstances, the judgment of the Delta State High Court in Suit No.A/79/2011 delivered by Hon. Justice T. C. Makwe is hereby set aside. The case is remitted back to the Chief Judge of Delta State for trial de novo before another judge.

 

Appeal Allowed. Cost of N50,000 to the Appellant against the Respondent.

HAMMA AKAWU BARKA, J.C.A. :

I read in draft the judgment just delivered by my brother HELEN MORONKEJI OGUNWUMIJU JCA.

The crux of the present appeal borders on lack of fair hearing.

 

It is indisputable that the principle of fair hearing embodied in Section 36(1) of the 1999 Constitution is not negotiable, and where there is a denial of fair hearing, the outcome of the entire proceedings are vitiated and thereby nullified. See Sunkanmi Adebesin v. The State (2014) 9 NWLR (Pt.1413) 609 at 645.

From the entire scenario in this case, it is apparent that the trial judge pushed himself into hearing the case, (a land matter for that matter) by taking evidence, being addressed orally, and writing a bench judgment all in one day, and in the absence of the appellant. I do agree with my Lord that the validity of a trial is not dependent on the result of the trial, but on the fairness of the process of hearing leading to the result. The trial having been conducted in such a rush and behind the back of the appellant is bound to crush as the judgment obtained from the process is vitiated by a fundamental vice, rendering it null and void.

I totally agree with the abundant reasons ably distilled from the records in the lead judgment that the entire process is a nullity and that the appeal be allowed as being meritorious. The judgment of the Delta State High Court in suit No.A/79/2011, delivered by T. C. Makwe J. on the 5/3/2013 is hereby set aside. I abide by consequential orders made in the lead judgment as well as to order on costs.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.:

Fair hearing envisages that the parties to a case should be given the opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It also envisages that the court or tribunal hearing the case should be fair and impartial. See ELIKE v. NWANKWOALA (1984) 12 SC 301 and ALSTHOM S. A. v. SARAKI (2005) LPELR (435) 1 at 23. But what is fair hearing? In MOHAMMED v. KANO N. A. (1968) 1 All NLR 42 Ademola, CJN stated:

“It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation, justice has been done in the case.”

 

I kowtow to this dictum.

It is apothegmatic to state that justice delayed is justice denied. The converse is equally correct; justice rushed is justice crushed. Justice should not be sacrified on the altar of speed. That will be a deprivation of justice, and a massacre of justice. The facts of this matter which have been fully redacted in the lead judgment and does not require my repeating them will no doubt lead the reasonable person observing proceedings to ask the question, what was the haste of the Lower Court? what was the hurry? The Appellant was not in court; the Lower Court “moved” the pending motion which the Appellant filed and granted the same. The Lower Court ordered an accelerated hearing; proceeding to hearing, the Respondent closed his case. The Appellant who was absent and was not aware that accelerated hearing had been ordered was not afforded the opportunity of an adjournment to attend court and defend the action. The Lower Court proceeded to address and thereafter adjourned for judgment. All in the case of one day’s proceedings and in the absence of the Appellant. What was the haste and how has the Appellant been given the opportunity of presenting this case. Doubtless, it cannot be said that there has been a fair hearing nor a fair trial and this definitely occasioned a miscarriage of justice.

What constitutes miscarriage of justice varies from case to case as the concept is denoted by the facts of the given case. Put simply, miscarriage of justice is a failure of justice. Miscarriage of justice occurs when a court fails or refuses to follow the Rules and arrives at a decision which is prejudicial and inconsistent with the legal rights of a party. Miscarriage of justice is failure on the part of the court to do justice. It is justice misplaced, misappropriated or misappreciated. See OGUNTAYO v. ADELAJA (2009) 15 NWLR (PT.1163) 150 or (2009) LPELR (2353) 1 at 43 – 44. The miscarriage of justice on the basis of which an appellate court will interfere is where the violation or some principle of law or procedure is such that if corrected a different result will be the outcome, or it may be the neglect of some principle of law or procedure which if it had not been neglected a different result will be the outcome: DAGACI OF DERE v. DAGACI OF EBWE (2006) 7 NWRL (Pt.979) 382 or (2006) LPELR (911) 1 AT 42.

 

In the instant case, it cannot be disputed that the failure to give the Appellant a fair hearing and fair trial is such that the case was not decided on the merits. It was prejudicial to the Appellant and therefore occassioned a miscarriage of justice. Where a case has occassioned a miscarriage of justice, it is liable to be set aside however well decided. See NWANA v. FCDA (2007) 11 NWLR (Pt.1044) 59 or (2007) LPELR (2102) 1 at 22.

Section 36(1) of the 1999 Constitution dealing with fair hearing is designed to ensure that in the administration of justice, parties must each be accorded every opportunity of canvassing their case within the rules regulating the procedure. NIGERIAN-ARAB BANK LTD v. COMEX (1999) 6 NWLR (Pt.608) 648 and ATOBATELE v. FASERU (2012) LPELR (9305) 1 at 20 – 21. Where as in this case there has been a denial of fair hearing, it is incurably fatal to the decision of the court as the decision arrived at is bound to be set aside for being null and void. See OTAPO v. SUNMONU (1987) 2 NWLR (Pt.58) 587, FMBN LTD v. ADU (2000) 11 NWLR (Pt.678) 309 at 318 – 319 and LEADERS & CO LTD V. BAMAIYI (2010) 18 NWLR (PT.1225) 329 or (2010) LPELR (1771) 1 at 16 – 17.

It is for the foregoing reasons and the fuller reasons in the lead judgment of my Lord, Helen Moronkeji Ogunwumiju, JCA which I was privileged to read in draft that I agree that this appeal is highly meritorious and ought to be allowed. The action at the Lower Court was commenced on 29th March, 2011, about four [years] ago. On account of the undue haste of the Lower Court leading to the denial of the Appellant’s right of fair hearing, this matter was to be heard de novo. I can do no better than restate the aphorism: much haste less speed. From the totality of the foregoing, the judgment of the Lower Court in Suit No.A79/2011 delivered on 5th March, 2013 is hereby set aside. I abide by the consequential orders as well as the order for costs made in the lead judgment.