Consequence of a Finding of Breach of Fair Hearing 

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 3rd day of March, 2023

Before Their Lordships

Kudirat Motonmori Olatokunbo Kekere-Ekun

Mohammed Lawal Garba

Helen Moronkeji Ogunwumiju

Ibrahim Mohammed Musa Saulawa

Adamu Jauro

Justices, Supreme Court

SC/114/2006

Between

CHIEF EMMANUEL OBASAN                       APPELLANT

                                  And

1. MOJIDI ABUDU      RESPONDENTS

2. AILERU ADENUGA  (For and on behalf of the Paripete Ruling House of Ago Iwoye)

3. THE SECRETARY, IJEBU NORTH  LOCAL GOVERNMENT

4. THE ATTORNEY-GENERAL, OGUN STATE

5. GOVERNOR, OGUN STATE

(Lead Judgement delivered by Honourable Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC)

Facts

Following the demise of Oba D. M. Osiyemi, the then Ebumawe of Ago-Iwoye in 1988, a public notice was issued by the Ijebu North Local Government requesting the Paripete Ruling House to present a candidate to fill the vacant stool. After a meeting of the Ruling House, the names of four persons including C. A. Adesanya (now deceased), were nominated and forwarded to the Kingmakers. The Kingmakers selected the said C. A. Adesanya and forwarded his name to the Military Governor of Ogun State for approval, despite protests from some members of the family that the Kingmakers usurped the function of the family to elect one of the candidates. Nevertheless, the selection of C. A. Adesanya as the Ebumawe of Ago Iwoye was approved. 

The Appellant and one Otunba Samuel Onalaja felt aggrieved and instituted an action before the High Court of Ogun State, seeking inter alia, an order nullifying the selection and appointment of the said C. A. Adesanya as Ebumawe of Ago Iwoye. The said C. A. Adesanya, died before trial commenced. Pleadings were duly filed by the parties at the trial court; however, the trial court opined that since the basic facts were not in dispute, oral evidence need not be called. The trial court directed parties to formulate issues for determination, which would form the basis of the conduct of trial. The Appellant and his co-Plaintiff distilled their issues for determination, which were agreed to by the 3rd – 5th Respondent.

At the hearing, some documents were tendered from the Bar and admitted in evidence by consent, while respective counsel addressed the court on the issues of law as formulated. On the date finally reserved for judgement, the 3rd – 5th Respondent brought an application for leave to amend their statement of defence, which was granted. In their Further Amended Statement of Defence, the 3rd-5th Respondent raised the issue of waiver for the first time, by which they pleaded that the Appellant’s ruling house had by conduct waived the right to nominate only one candidate, having participated in the process that led to the nomination of four candidates from the Paripete Ruling House and the eventual selection of the late Oba C. A. Adesanya as Ebumawe. 

Without hearing the parties on the issue of waiver, the trial court proceeded to deliver its judgement, in which it raised a fresh issue to accommodate the waiver pleaded by the 3rd – 5th Respondent. The trial court answered the issues initially formulated by the Appellant and the 3rd -5th Respondent in the Appellant’s favour, but resolved the issue of waiver against the Appellant. The trial court held that the Appellant’s ruling house had by conduct waived their right to present a single candidate for election to the stool of the Ebumawe of Ago-Iwoye, by reason of certain steps taken by the Appellant during the selection process. Dissatisfied, the Appellant filed an appeal at the Court of Appeal. The Appellant ‘s grouse was that the trial court breached his right to fair hearing, by not affording him the opportunity to address the court on the issue of waiver raised by the trial court in its judgement. The Court of Appeal allowed the appeal and declared the proceedings at the trial court and the judgement a nullity, for breach of the Appellant’s right to fair hearing. The Court of Appeal ordered that the case be assigned to another Judge of the High Court of Ogun State for trial de novo. Dissatisfied with the order of rehearing, the Appellant filed an appeal before the Supreme Court.

Issue for Determination 

The Supreme Court considered the following issue in its determination of the appeal:-

Whether the Court of Appeal was right to have ordered a trial de novo, in the circumstances of the case.

Arguments

Counsel for the Appellant argued that the Court of Appeal ought to have set aside only the portion of the trial court’s judgement relating to the issue of waiver that was raised suo motu, rather than order a rehearing of the entire case. He submitted that it is the duty of the 3rd – 5th Respondent who pleaded the issue of waiver in their Further Amended Statement of Defence to adduce evidence to support the same, and in order to lead such evidence, they ought to have applied to the trial court to set aside its earlier order directing the hearing to be on issues of law alone. He submitted that the implication of pleading the issue of waiver on the day the judgement was delivered, is that it is deemed abandoned and of no moment. He cited NATIONAL BANK OF NIGERIA LTD v P. B. OLATUNDE & CO. NIG. LTD (1994) 3 NWLR (PT. 334) 512 @528 E-G. Counsel for the Appellant argued further that, ordering a trial de novo was akin to giving the 3rd – 5th Respondent a second opportunity to re-litigate the entire case, and this was highly prejudicial to the Appellant. He also submitted that the mere attendance of the Appellant at a meeting could not constitute a waiver, and that in any event, the law is that the where the observance of a statute such as the subject Chieftaincy Declaration is required for the benefit of the public, it cannot be waived.

Counsel for the 1st and 2nd Respondent submitted that the effect of the trial court formulating and deciding an issue suo motu during the judgement is a mistrial, which the lower court could not rectify. Counsel argued that with the amendment of the 3rd – 5th Respondent’s pleadings, the pleadings that stood before the amendment were extinguished, and there was the need to resettle the issues for determination; and a retrial based on the amended pleadings was what would meet the justice in the case. He cited UGO v OBIEKWE (1989) 1 NWLR (PT. 99) 566. He argued further that the Chieftaincy Declaration is not a statutory instrument, but a declaration regulating the selection of the Ebumawe of Ago Iwoye and would at best, qualify as a Regulation and a subsidiary instrument which could be waived, contrary to the Appellant’s arguments. 

Respective counsel for the 3rd Respondent and the 4th – 5th Respondent argued similarly that the order of retrial made by the Court of Appeal accords with Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, as amended, and the position of the law that where it is found that a party has been denied the right to fair hearing, the proceedings, no matter how well conducted, would be declared a nullity. They submitted that the Appellant’s arguments tending to give reasons why the issue of waiver could not have succeeded were speculative, and thus, have no place in law.  

Court’s Judgement and Rationale 

The Apex Court held that the effect of any proceeding conducted in breach of a party’s right to fair hearing is that it is a nullity and liable to be struck out, no matter how sound the judgement or order may be. The Court referred to A-G RIVERS STATE v UDE & ORS. (2006) 17 NWLR (Pt. 1008) 436 and WATGBATSOMA v FRN (2018) LPELR – 43722 (SC) @ 29 – 30 E-D.The Court held that where a court raises an issue suo motu and makes a decision based on that issue without first inviting the parties to address it, it constitutes a breach of the parties’ right to fair hearing and occasions a miscarriage of justice. Once proceedings of a lower court are declared a nullity by an appellate court on grounds of denial or violation of a party’s right to fair hearing, the only proper, appropriate and valid step to take and order to make by the appellate court, is one for a valid trial of the case in which parties shall be afforded and accorded the full right to a fair hearing in the proceedings.

The Court held that although there are a few exceptions, as stated in OMOKUWAJO v FRN (2013) LPELR – 20184 (SC) @ 37 -38 G –D, where the court need not to give parties a hearing where the court raises an issue suo motu, such as where the issue relates to the court’s own jurisdiction or where both parties were not aware/ignored a statute which may have a bearing on the case and which the Judge is expected to take judicial notice of, or when on the face of the record serious questions or fairness of the proceedings is evident; however, none of these exceptions was applicable to the Appellant’s case. The lower court therefore rightfully held that the Appellant’s right to fair hearing was breached, and consequently set aside the proceedings and the judgement of the trial court, and ordered that the case be remitted to the trial court to be heard de novo by a different Judge. The Court held that once the court makes a finding that there has been a breach of the right to fair hearing, it has no other option than to set aside the proceedings and any order or decision rendered therein. The Appellant who complained of breach of his fundamental right to fair hearing, cannot therefore pick and choose which portion of the proceedings and judgement to be set aside. The consequence of successfully establishing the breach, is that the entire proceedings are a nullity. No aspect of the case can be saved under any guise.

Appeal Dismissed. 

Representation

O. A. Owolabi, Esq. for the Appellant. 

B. Ademola-Bello, Esq. for the 1st and 2nd Respondents.

Folashade Alli Esq. with Umar Saka, Esq. for the 3rd Respondent.

S. O. Ajayi, Esq. for the 4th and 5th Respondents with fiat of the Attorney General, Ogun State. 

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Report (NMLR)(An affiliate of Babalakin & Co.)