Mr. Anthony Ezeafulukwe V. Jim Obatoyinbo (2007)

LawGlobal-Hub Lead Judgment Report

MARY U. PETER-ODILI, J.C.A.

This is an appeal against the order of the High Court of Justice of the Federal Capital Territory, Abuja delivered by the Hon. Justice I. M. Bukar on the 4th of November, 2002 in suit No: FCT/HC/CV/1151/2002 wherein the learned trial Judge struck out the Plaintiffs suit on the ground that it was an abuse of process of court.

STATEMENT OF FACTS

The appellant by a writ of summons together with a statement of claim both dated 28/10/2002 filed a suit against the respondent claiming some declaratory reliefs, eviction order and damages.

The matter was assigned to the trial court on 30/10/2002 and on 4/11/2002 the learned trial Judge in Chambers struck it out on the basis that it was the same as the case in suit NO: FCT/HC/CV/95/2002 struck out on the 21/10/2002.

Being dissatisfied with the said decision of the trial court the appellant has appealed to the Court of Appeal through a Notice of Appeal dated the 18th November 2002 and filed the same day containing 3 grounds of appeal which are without the particulars as follows:-

Ground 1:

The learned trial Judge erred in law in striking out plaintiff’s suit NO.FCT/HC/CV/1151/2002 on the ground that it will amount to abuse of Court process if the Plaintiff is allowed to file the suit having filed suit NO.FCT/HC/CV/951/2002 which was struck out on 21/10/2002.

Ground 2:

The learned trial Judge erred in law in striking out the Plaintiff’s suit without giving the parties, particularly the Plaintiff, the opportunity to address him on the propriety or otherwise of filing a fresh suit, the subject matter of this appeal, thereby truncating the Plaintiff’s constitutional right to fair hearing.

Ground 3:

The learned trial Judge erred in law when he relied on extraneous matters in striking out the Plaintiff’s suit on the ground that the present suit on appeal is similar to (sic) NO. FCT/HC/CV/951/2002 which was struck out on 21/10/02. The Appellant on the 22/8/03 filed a brief of argument which was deemed filed on 18/3/04. The Appellant also filed a Reply Brief on 21/9/05 and it was deemed filed on 20/10/05.

The Respondent’s Brief was filed on 26/10/04 and deemed filed on 26/5/05 and in it the Respondent incorporated their preliminary objection to the Appeal.

ARGUMENT IN RESPECT OF PRELIMINARY OBJECTION

Learned counsel for the Respondent said the Appellant first instituted this action in Suit NO.FCT/HC/CV/446/2002 for lack of jurisdiction because the 3rd to 6th defendants were agencies of the Federal Government and that the plaintiff/appellant’s suit discloses no cause of action, the plaintiff/appellant appealed against the trial court’s ruling of 24/06/2002 in his Notice of Appeal dated 8th day of July, 2002 and in Appeal No.CA/A/105/2002. That while pursuing his Appeal, the plaintiff/appellant equally instituted another case (i.e this suit) in suit NO: FCT/HC/CV/951/2002 before Honourable Justice Bukar against the respondent herein (who was sued as the 1st defendant in the previous suit) in respect of the same subject matter as suit NO:FCT/HC/CV/446/2002, Appeal NO:CA/A/105/2003 i.e in respect of plot 2811A, Maitama District, Abuja.

Mr. Gbadamosi of counsel for the Respondent said apart from the two cases referred to, the plaintiff also instituted yet another case in Suit NO:FCT/HC/CV/1155/2002 also before Justice Bukar which was not made known to the defendant herein but same was judicially noticed by the trial court and same informed the learned trial Judge’s decision to strike out the Plaintiff’s case on 4/11/02. That it was as a result of the multiplication of suits in respect of the same subject matter and against the same defendant (s), the learned trial Judge, I.M. Bukar of the High Court of the Federal Capital Territory struck out this suit on 4/11/2002. That unknown to Justice I. M. Bukar, the appellant’s suit had earlier been struck out by Justice Gumi in suit NO:FCT/HC/CV/446/02 on 24/6/02 in respect of the same subject matter. That dissatisfied with the striking out of this second suit, the plaintiff/appellant again appealed against the ruling via his Notice of Appeal dated 18th November, 2002 and filed on the same day. That it is submitted that the institution of this suit at the trial court as well as the prosecution of the present appeal constitute an abuse of court process.

Learned counsel for the Respondent further contended that the source of title as well as some reliefs of the appellant herein in Appeal NO:CA/A/104/2003 and the present Appeal i.e. CA/A/104/2003 claimed at the trial court in order to bring to the fore the extent of abuse of court process at least in Suit NO: FCT/HC/CV/446/2002 between the plaintiff/Appellant and the defendant/Respondent and 6 others which is Appeal NO: CA/A/105/2003 before this Court in one hand and suit NO: FCT/HC/CV/1151 which is the present appeal before this Court on the other hand. He referred to the claims in the pleadings of the plaintiff’s at the lower court.

Mr. Gbadamosi stated that what is clear from an analysis of the source of title of the plaintiff/appellant’s in both cases as indicated in his statements of claim is the “oral grant” by Lt. Gen. Jeremiah Useni the then Minister of the Federal Capital Territory, which is unknown to the modes of granting title to land in the FCT. Also that the subject matter of the suit in both cases which incidentally are before this court, is in respect of plot 2811A, Maitama District A6, Abuja. That what is at play is a clear case of abuse of court process. He cited A.R.C. v. JDP Construction (Nig.) Ltd (2003) FWLR (pt. 153) 251 at 270.

That there is a need for the Appellant to withdraw this appeal since the sister case ie CA/A/105/2003 is still pending before this Court. He cited Shell PDC V. Uzoaru (1994) 9 NWLR (pt. 366) 51 at 73. He stated further that where this court comes to the conclusion that its process is abused the proper order is a dismissal. He referred to Aruba v. Aiyeleru (1993) 3 NWLR (pt.280) 126; Kode v. Yusuf (2001) FWLR (pt. 40) 1227 (2001) 4 NWLR (pt. 703) 392.

Learned counsel for the Respondent said the plaintiff/appellant cannot be said to be denied fair haring for not allowing his counsel to address the court before the case was struck out as the issue of fair hearing raised by the appellant is no more than a storm in a tea cup. That the nature of any case can be determined by even looking at the writ of summons, and the trial court can rightly determine its fate whether it has jurisdiction to entertain the matter or the matter deserves a striking out as in the instant case. He cited A.G. Kwara State v. Olawale (1993) 1 NWLR (pt. 272) SC 645 at 673 – 675; Section 74(1) (m) of the Evidence Act; Ajide v. Kelani (1985) 3 NWLR (pt. 12) SC 248 at 269; Okafor v. Nnaife (1987) 2 NSCC 1194 at 1198.

The Appellant in their Reply Brief stated that the Respondent had in his notice of preliminary objection raised three (3) fresh issues or points that:-

1. The institution of this case both at the trial court and before this court is an abuse of court process
2. The striking out of the case by the trial court was premised on compliance with the provision of Section 74(1) (m) of the Evidence Act; and
3. The appellant was inconsistent in the prosecution of his case both at the trial court as well as in this court.

He referred to the Respondent’s Notice of preliminary objection dated and filed 7th June 2004.

Ground one (1) of the said notice of preliminary objection is vague. That the Respondent in the preliminary objection raised in his Brief of Arguments dated 26th October, 2004 without any application for leave of this Court amended the said ground one and based his submissions on the same. That the Respondent’s failure to seek and obtain leave of the court before amending and arguing ground (1) of the Notice of the preliminary objection renders the entire notice of preliminary objection incompetent.

That the three grounds of notice of preliminary objection from which the respondent raised and argued his preliminary objection were not raised, argued and decided at the trial court. That they were not raised either in the appellant’s brief and the Respondent did not seek and obtain the mandatory leave of the court to raise the above fresh points. See ABC Plc v. Emedo (2003) 10 NWLR (pt. 828) 244 at 255 C – E.

Learned counsel further stated that where a notice of preliminary objection filed by a respondent to an appeal, as in the instant case, clearly raises issues or points which the respondent is ‘in opposition to allow the appeal therefore the notice of preliminary objection should be overruled. He cited Delta State Government v. Okon (2002) 2 NWLR (pt. 752) 665 at 684 – 685; Ojukwu v. State (2002) 4 NWLR (pt. 756) 80 at 91 – 92.

Learned counsel for the Appellant submitted that in the alternative that the court should hold that the three grounds of his notice of preliminary objection is based on base faced misrepresentation of both the facts and the ratio decidendi of the cases. That the respondent missed the point when he stated that:

1. Suit number FCT/HC/CV/446/02 was struck out on the ground that the plaintiff/appellant’s suit disclosed no cause of action.
2. “The plaintiff also instituted yet another case in suit No: FCT/HC/CV/951/02 before the Honourable Justice Bukar against the respondent therein (who was sued as the 1st defendant in the previous suit) in respect of the same subject matter as suit NO: FCT/HC/CV/446/2002
3. “The plaintiff also instituted yet another case in suit NO: FCT/HC/CV/1155/2002 also before Justice Bukar which was not made known to the defendant herein but same was judicially noticed by the trial court and same informed the learned trial Judge’s decision to strike out the plaintiff’s case on 04/11/2002”
4. The learned trial Judge struck out the appellant’s suit “as a result of multiplication of suits in respect of the same subject matter and against the same defendant (s)
5. The learned trial Judge took “judicial notice” under Section 74(1) (m) of the Evidence Act to strike out the case.
6. The appellant was inconsistent with the prosecution of this case at the trial court in that in one of the cases the appellant was claiming that “his root of title was derived from “oral grant” of the plot to him by the then Minister of the Federal Capital Territory, Lt. Gen Jeremiah Useni in 1995 on condition that he keeps the environment clean” and in another case, “he claimed to derive his title from Mapembe villages before he got his “oral grant” from the then Minister Mr. Osuafor of counsel said that the above statements, assertions and arguments are not borne out of the record of this appeal. That it is so because in Suit NO: FCT/HC/CV/446/2002 was not before the learned trial Justice Bukar and that there is no where in the record the said suit appeared before the trial court presided over the said suit NO: FCT/HC/CV/446/2002 was not struck out on the ground “that the plaintiff/appellant’s suit discloses no cause of action”. That the said suit was struck out for want of jurisdiction on the ground that the plaintiff/appellant was challenging the administrative decisions of Federal Government agencies. That it is pure falsehood as misrepresented by the respondent that the learned trial Judge struck out the Plaintiff’s case as a result of multiplication of suits in respect of the same matter and against the same defendant (s).

Learned counsel for Appellant said the argument and conclusions made by the respondents in paragraphs 2.1 – 4.1 of his brief of argument which cover the three grounds are based on false premises and they, therefore, go to no issue. That this is so as it has been held in a plethora of cases that a ground of a court process is incompetent when the factual basis is false or nonexistent.

He referred to Ikem v. Ezianya (2002) 4 NWLR (pt. 757) 245 at 261; Alakija v. Abdullai (1998) 6 NWLR (pt. 552) 1; Arugba v. UNA (2002); Iloabachie v. Iloabachie (2002) 5 NWLR (pt. 656)

178 at 202 – 203. He cited CBN v. Ahmed (2001) 11 NWLR (pt. 724) 369; Idoko v. Ogbeikwu (2003) 7 NWLR (pt. 819) 275 at 288 for what constitute abuse of process.

Mr. Osuafor said the appellant is not in abuse of process of court, rather he is exercising his rights of action and of appeal conferred on him by the constitution, bona fide. He cited Saraki v. Kotoye (1992) 9 NWLR (pt. 264) 156 at 189.

He stated on that the appellant instituted suit NO:FCT/HC/CV/446/2002 against seven different defendants including one Mr. Obaloyinbo who claims to be the managing director of a certain company called KAPITAL VENTURES LTD.

That the issues were not joined as the defendants refused to file any statement of defence, the trial court struck out the suit on ground by lack of jurisdiction. He went on to say that after declining jurisdiction to try the case, the learned trial Judge surprisingly made some far – reaching findings/pronouncements that touched on the substantive matter and that are prejudicial to the appellant and so appellant dissatisfied appealed against the decision challenging those findings that adversely affected the substantive case in appeal number CA/A/105/03.

Learned counsel further contended that suit number FCT/HC/CV/1151/2002 that led to the present appeal was filed by the appellant against the defendant who at all material times is a businessman. That when the learned trial Judge struck out the suit on the ground that the case is similar with another case earlier struck out, in dissatisfaction the appellant appealed against the entire decision in the present appeal NO.CA/A/104/03.

For the appellant it was contended that if the learned trial Judge had declined jurisdiction simpliciter, there would not have been much need to file the appeal but the trial Judge made adverse findings on the substantive matter which prejudiced the appellant and rendered the entire proceedings a nullity. That it would have been difficult for the appellant to properly canvass that issue at the hearing of any subsequent proceeding on the matter without being caught up by the doctrine of res judicata if he failed to appeal. That the action taken by the appellant in all the circumstances of this case do not amount to abuse of court process. He cited Nwobochi v. The State (1998) 10 NWLR (pt. 568) 131 at 154 – 155.

He finally concluded by stating that Section 74(1) (m) of the Evidence Act does not empower a trial Judge to rely on processes of previous proceedings in striking out a suit suo motu, without hearing the parties on the points before taking the decision.

The ruling of the learned trial Judge which dissatisfied the Appellant for which he came to this court is as follows:-

“The case is the same with case NO:FCT/HC/CV/951/2002 which was struck out (sic) on the 21/10/2002. The Counsel is free to apply for relisting of that case but not to file it afresh. This will amount to abuse of the Court process. If there is a new addition to be made that will be made after the relisting of the case by way of amending the claim. This case is therefore struck out”.

The above is seen at page 13 of the Record of proceedings and made on 4/11/2002.

At page 12 the learned trial Judge had minuted to the Registrar of court in the following words:-

“This case is a reproduction of case NO: FCT/HC/CV/95/2002which was struck out on the 21/10/2002 (see P. 90 Minute Book 5). The best he can do if he is still interested in the prosecution of the case is to apply for relisting and not to file it afresh.

Mention this one for striking out on 4/11/2002and call counsel’s attention of this”.

I have considered this preliminary objection and the arguments for and against and I see it as nothing other than a circuitous route in the process of this appeal. The issues raised therein are in effect a response or response to the issues raised in the Appellant’s Brief and it becomes necessary to dispatch without hesitation so that we can get on to the meal of the matter being the appeal proper. What I am saying in substance is that there is no basis for this preliminary objection which serves no useful purpose since by the nature of the appeal the process ought not to be aborted mid-steam or even before getting into the stream. I know that competence of the court is so weighty that it goes to its jurisdiction, the issue thereof can be raised on appeal for the first time and suo motu by the Court of Appeal. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341; Ordojin v. Arowolo (1989) 4 NWLR (pt. 114) 172; Galadima v. Tambia (2000) 11 NWLR (pt. 677) 1; George v. UBA (1972) 8 – 9 SC 264.

That being said this preliminary objection is dismissed for lacking in merit.

In Appellant’s Brief of Argument Appellant raised two issues for determination which are,-

1. Whether having regard to the circumstances of this case, the trial court was right in law in striking out the appellant’s case on the ground that it will amount to abuse of court process as the suit is the same with the case earlier struck out.
2. whether in the circumstances of this case, the appellant was denied fair hearing.

The Respondent in their Brief formulated two issues which are:-

1. Whether the trial court was not right in striking out the Appellant’s case on the ground of

abuse of court process.

2. Whether the trial court denied the Appellant fair hearing by reason of its reliance on documents (processes) placed before it in arriving at its decision.

Seeing and considering the two issues raised by the parties it seems to me tidier to collapse the two issues into one as I am allowed by rule of practice and a surfeit of authorities and that issue being as follows:-

Whether the trial court in striking out the appellant’s case on the ground that it will amount to abuse of court process as the suit is the same with the case earlier struck out had not thereby denied the Appellant his right to fair hearing?

Learned counsel for the Appellant had posited that it is trite law that a plaintiff whose case is struck out is at liberty to file a fresh suit to recommence the suit or subsequent suit without being liable in abuse of court process. He cited Ogunsola v. A.P.P. (2003) 9 NWLR (pt. 826) 486 – 487; Idoko v. Ogbeikwu (2003) 7 NWLR (pt. 819) 275 at 292; CBN v. Ahmed (2001) 11 NWLR (pt.724) 369.

Learned counsel further stated that a trial court is at all times duty bound to uphold and observe all the attributes of fair hearing which include but not restricted to the following:-

1. That the court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case.
2. That the court or tribunal shall give equal treatment, opportunity and consideration to all concerned.
3. That the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of public hearing; and
4. That having regard to all the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.

He referred to Unibiz (Nig.) Ltd v. C.B.C.L. Ltd (2003) 6 NWLR (pt. 816) 402 at 415 – 433; Agbogu v. Adichine (2003) 2 NWLR (pt. 805) 509 at 532 – 533; Abbas v. Solomon (2001) 15 NWLR (pt. 735) 144 at 170; Aliyu v. Chairman, Rent Tribunal (2003) 10 NWLR (pt. 829) 633 at 644.

Learned counsel for the Appellant further stated that it is not the duty of the trial court when adjudicating on a dispute to make inquiry or to investigate on facts, issues or materials not properly placed before it. He cited the cases of:-

1. Adike v. Obiareri (2002) 4 NWLR (pt. 758) 537 at 572
2. Zakhem Canst (Nig.) Ltd v. Nneji (2002) 5 NWLR (pt. 759) 55 at 95.
3. R.E.A.N. PLC v. Anumnu (2003) 6 NWLR (pt. 815) 52
4. Sanni v. Admiluyi (2003) 3 NWLR (pt. 807) 381 at 395 – 396.
5. Duriminya v. COP (1961) NRNCR 70 at 74.

In response learned counsel for the Respondent said it is an abuse of judicial process for the plaintiff to file a notice of discontinuance so that he may have his way in a new suit. He cited Olutirin v. Agaka (1998) 6 NWLR (pt. 554) 366 at 375; Olawore v. Olanrenwaju (1998) 1 NWLR (pt. 534) 436 at 455; Okafor v. A.G. Anambra State (1991) 6 NWLR (pt. 200) 659. Learned counsel further stated that even if the matter is not strictly res juduicata, once a court is satisfied that a proceeding before it is an abuse of its process, the court has the right as done by the trial court to invoke its coercive powers to punish the party in abuse of its process by dismissing the abusive action. He cited Arubo v. Aiyeleru (1993) 3 NWLR (pt. 280) 126 at 142.

That the trial court was right in taking judicial notice of the appellant’s case and thereafter came to the conclusion that the discontinuance of earlier suit in order to file a fresh one constitutes an abuse of court process. That the Appellant cannot be said to have been denied fair hearing since the trial court relied on the processes before it being Appellant’s writ as well as the statement of claim and it is in the interpretation of those documents that the trial court came to its conclusion. He cited AG. Federation v. A.G. Abia State (2002) FWLR (pt. 102) 1 at 216; A. G. Bendel State v. AG. Federation (1981) 10 SC 1; Okafor v. Dumez (Nig.) Ltd (1988) 13 NWLR (pt. 580) 88 at 97; A.G. Kwara State v. Olawale (1993) 1 NWLR (pt. 272) SC 645 at 674 – 675.

Learned counsel stated on that assuming appellant’s counsel was given opportunity to address the court before the striking out order, his address will go to no issue as same could not replace, add or subtract from the documents/processes already before the trial court. He cited Odubeko v. Fowler (1993) 7 NWLR (pt. 308) 637 at 655; Buhari v. Takuma (1994) 2 NWLR (pt. 325) 183 at 191; ACB. Plc v. Obimiami Brick & Stone (1993) 5 NWLR (pt.294) SC 399 at 415 – 416.

In reply on points of law in the Reply brief, the Appellant contended that Appellant Was not accorded fair hearing when the learned trial Judge refused to hear his counsel address the court on the issues the trial court raised suo motu based on materials that are extraneous to the records of that court.

Having stated the summary of the arguments of both counsel I would like to refer and restate the portion of the decision of the court below which is at the root of this appeal and it is as follows:-

“This case is the same with case NO:FCT/HC/CV/951/2002 which was struck out on 21/10/2002. The counsel is free to apply for relisting of that case but not to file it afresh.

If there is a new addition to be made that will be made after the re-listing of the case by way of amending the claim”.

It is necessary to clear the point that an irregularity is not a factor justifying the setting aside of a verdict or decision unless it is established that there has been a miscarriage of justice. I refer to Emedo v. State (2002) 15 NWLR (pt. 789) 196 at 205.

The reason for getting that point out of the way is that there may be a nagging question as to whether what transpired in the court below was an irregularity which would not fundamentally affect the verdict and if not then the decision has to be set aside.

The inherent jurisdiction or power of a court is a necessary adjunct of the powers conferred by the rules and is invoked by a court of law to ensure that the machinery of justice is duly applied and properly lubricated and not abused. One most important head of such inherent powers is abuse of process, which simply means that the process of the courts must be used bona fide and properly and must not be abused. Once a court is satisfied that any proceedings before it is an abuse of process it has the power, indeed the duty, to dismiss it. See C.B.N. v. Ahmed (2001) 11 NWLR (pt. 724) 369 at 390; Aruba v. Aiyeleru (1993) 3 NWLR (pt.280) 126; Okafor v. A -G Anambra State (1991) 6 NWLR (pt. 200) 659.

The learned trial Judge had hinged his decision on the fact that the case before him was an abuse of court process. There has, therefore arisen the need for me to agree or not that an abuse had occurred.

Abuse of court process simply means that the process of the court has not been used bona fide and properly. It also connotes the employment of judicial process by a party in improper use to the irritation and annoyance of his opponent and the efficient and effective administration of justice. See Idoko v. Ogbeikwu (2003) 7 NWLR (pt. 819) 275 at 288 – 289: Ekpo Ltd v. Pafab Int. Ltd (1999) 2 NWLR (pt. 591) 449 at 462.

An abuse of the process is a term generally applied to a proceeding which is wanting in bona fide and is frivolous, vexatious or oppressive. Abuse of process can also mean abuse of legal procedure or Improper use of legal process. It always involves some bias, malice, some deliberateness, some desire to misuse or prevent the system of administration of justice. See Olutirin v. Agaka (1998) 6 NWLR (pt. 554) 366 at 375; Amaefule v. State (1988)4 NWLR (pt.91) 156 at 177; Edet v. State (1988) 4 NWLR (pt. 91) 772.

In the same reasoning it was held by the Supreme Court in:

NV. Scheep v. M “S. Araz” (2000) 15 NWLR (pt.691) 622 at 664.

An abuse of the judicial process means that the process of the court has not been used bona fide and properly. Hence, it is generally accepted that the multiplicity of suits by the same plaintiff against the same defendant in respect of the same subject matter is prima facie, vexatious, oppressive and an abuse of the process of the court. The abuse lies in the multiplicity of the actions rather than in the exercise of the right. FRN v. Abiola (1997) 2 NWLR (pt. 488) 444; Owonikoko v. Arowosaiye (1997) 10 NWLR (pt. 523) 61; Morgan v. W.AA and Eng. Co. Ltd (1971) 1 NMLR 219; Kotoye v. Saraki (1992) 9 NWLR (pt. 264) 156.

Generally, an abuse of court process is constituted when more than one suit is instituted by a plaintiff against a defendant in respect of the same subject matter to the harassment, irritation and annoyance of the defendant and in such a manner as to interfere with the administration of justice. Okafor v. A.G. Anambra State (1991) 6 NWLR (pt. 200) 659; The Vessel “Saint Roland” v. Osinloye (1997) 4 NWLR (PT. 500) 587.

To answer the question whether or not abuse of court process took place some hurdles must be crossed. These are whether the other party or the party whose interest would be jeopardised and in this instance the Appellant should have been heard before the trial Judge would terminate the case in limine especially since the issue had not been raised before the trial Judge.

It is trite that no court is expected to address issues not raised by the parties before it. This is so because courts must as a rule limit themselves to issues raised by the parties before it.

See REAN PLC v. Anumnu (2003) 6 NWLR (pt. 815) 52 at 104; Key Industries (Nig.) Ltd v. Aina (1997) 8 NWLR (pt. 318) 208.

Bearing the above principle in mind and co-relating it to the fact that the learned trial Judge suo motu coming up with the issue of an abuse of court process existing at the instance of the plaintiff/Appellant not giving the Appellant the opportunity of being heard denied him his right to fair hearing which jeopardised the process. It is all the more critical since the learned trial Judge gave no detailed account of the materials from which he derived his conclusion.

In the case of Orugbo v. Una (2002) 16 NWLR (pt. 792) 175 it was held:-

1. The fair hearing principle entrenched in the Constitution is so fundamental in the judicial process or the administration of justice that breach of it will vitiate or nullify the whole proceedings, and a party cannot be heard to say that the proceedings were properly conducted and should be saved because of such proper conduct. Once an appellate court comes to the conclusion that there is a breach of the principles of fair hearing, the proceedings cannot be salvaged as they are null and void ab initio. This is so because fair hearing lies in the procedure followed in the administration of the case not the correctness of the decision. Accordingly, where a court arrives at a correct decision, but in breach of the principles affair hearing an appellate court will throw out the correct decision ‘for breach of fair hearing Ceekay Traders Ltd v. General Motors Co. Ltd (1992) 2 NWLR (pt. 222) 132; NUTHMB v. Nnoli (1994) 8 NWLR (pt. 363) 376.

The true test of 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. However, the reasonable man should be a man who keeps his mind and reasoning within the bounds of reason and not extreme. And so, if in the view of a reasonable man who watched the proceedings, the principles of fair hearing were not breached, an appellate court will not nullify the proceedings. See Orugbo v. Una (2002) 16 NWLR (pt. 792) 175; Mohammadu v. Kano NA (1968) 1 All NLR 428; Funduk Eng. Ltd v. Mcarthur (1995) 4 NWLR (pt. 392) 640; Yakubu v. Governor Kogi State (1995) 8 NWLR (pt. 414) 386.

The all important principle of fair hearing having been compromised by what happened in the court below and the manner the learned trial Judge went about his duty created the impression that he had reached a decision in a court of law with materials outside the confines of what was before him and exercisable by him. Therefore the Appellant cannot be faulted when he raised the query that the learned trial Judge in adjudicating embarked on an inquiry or investigation on facts, issues and materials not properly placed before him. What occurred clearly led to a miscarriage of justice which cannot be ignored. I place reliance on Adike v. Obiareri (2002) 4 NWLR (pt. 758) 57; Sanni v. Ademiluyi (2003) 3 NWLR (pt. 807) 381 at 395- 396; Zakhem Canst. (Nig.) Ltd v. Nneji (2002) 5 NWLR (pt. 739) 55 at 95.

I am conscious of the fact that when on the materials before the court, a case can be determined in limine, it is better for the court to take that course for it would be manifestly absurd for a court to proceed with the taking of evidence of parties to a suit where it appeared that the suit could be decided upon pleadings without evidence being called. However that situation did not occur in the present case. See A.C.B. Plc v. Obmiami Brick & Stone (1993) 5 NWLR (pt. 294) 399 at 415 – 415.

From the foregoing it is clear that there was a miscarriage of justice which vitiated the trial and decision of the court below. This appeal is upheld and allowed. The decision of the court below is set aside. The matter is sent back to the Chief Judge of the FCT to be tried de -novo by a Court other than that presided over by Justice Bukar.

I make no Order as to costs.

---

Other Citations: (2007)LCN/2611(CA)