ZENITH PLASTICS INDUSTRIES LTD v.SAMOTECH LTD

CITATION: (2018) LPELR-44056(SC)

In the Supreme Court of Nigeria

ON FRIDAY, 23RD MARCH, 2018Suit No: SC.22/2008

Before Their Lordships:

MUSA DATTIJO MUHAMMAD Justice of the Supreme CourtKUDIRAT MOTONMORI OLATOKUNBOKEKERE-EKUN Justice of the Supreme Court

CHIMA CENTUS NWEZE Justice of the Supreme CourtEJEMBI EKO Justice of the Supreme CourtSIDI DAUDA BAGE Justice of the Supreme Court

BetweenZENITH PLASTICS INDUSTRIES LIMITED - Appellant(s)

AndSAMOTECH LIMITED - Respondent(s)

RATIO DECIDENDI

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1. APPEAL - REPLY BRIEF: Effect where Court fails to consider a reply brief"Therefore, in determining the appeal and for all the parties to have equal opportunity of being heard, all theprocesses had to be considered. Now, in the course of the judgment, the Court below noted at page 218 of therecord that learned counsel for the respondent had argued that the Notice and Grounds of Appeal and theadditional ground of appeal were in breach of Order 3 Rule 2 (3) of the Court of Appeal Rules and that there wasunnecessary repetition in some of the grounds. The learned Justice who wrote the lead judgment proceeded atpage 219 of the record to state as follows:"Learned counsel for the appellant did not file a Reply to enable him respond to the above submissions. Notfiling a Reply brief or responding to the above submissions is in no way fatal. This is so because the court hasthe power suo motu to strike out incompetent grounds of appeal. See: Order 3 Rule 2(2),(3) and (4) of the Courtof Appeal Rules. If indeed the appellant failed to file a Reply brief, the above position taken by the Court wouldhave been in order. However, where the Court states that the appellant did not file a Reply brief when theprocess was properly before it, it creates a different scenario altogether. It is a clear admission that theappellant's case was not considered in its entirety. This fact was admitted by learned counsel for the respondentin paragraph 4.1 of his brief. Since the Court erroneously held that the appellant did not file a Reply brief, therewas no opportunity for it to consider whether the Reply brief met the requirements of a Reply brief. It is not forlearned counsel for the respondent to contend before us that the only new issue raised in the respondent's briefhad been addressed in the main brief or that the Reply brief was a re-hash of arguments in the main brief.Learned counsel for the appellant contends that apart from addressing the objection raised by the respondent,the Reply Brief also contained submissions on other aspects of the appeal relevant to its case. Order 6 Rule 5 ofthe Court of Appeal Rules 2002 permits an appellant to file a Reply Brief, if necessary. Having exercised its rightunder the Rules, by filing a Reply Brief, the Lower Court had a duty to consider it and make necessary findings inrespect of the arguments proffered therein. The Court could only reach a determination as to the competence ofthe Reply brief or the materiality of the submissions of learned counsel after giving it due consideration. Havingheld that the appellant failed to file a Reply Brief, when it had in fact filed one, means that the entirety of itscase was not considered by the Court before it reached its decision. It may well be that if the Court hadconsidered the Reply brief it could have found that it did not provide any material assistance to the Court inresolving the issues before it. However, it would have come to that conclusion fully seised of all the relevantmaterial submitted by the parties. The argument of learned counsel for the respondent to the effect that therehas been no miscarriage of justice in this case and that the Lower Court's omission is not fatal, is misconceived.A similar submission was made in Kotoye vs C.B.N. (supra). The Court held that it was not necessary to considerwhether or not the order made in that case was more beneficial to the appellants or the respondents. It heldthat once it is established that a party entitled to be heard was not heard, a breach of the principles of fairhearing is established. It concludes the matter and the proceedings are vitiated. I am satisfied that there was abreach of the appellant's right to fair hearing by the Lower Court when it failed to consider its Reply Brief."PerKEKERE-EKUN, J.S.C. (Pp. 15-18, Paras. B-C) - read in context

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2. APPEAL - REPLY BRIEF: Effect where Court fails to consider a reply brief"My Lords, in Onuwa Kalu v The State (2017) LPELR - 42101 (SC), this Court [per Nweze, JSC] dealt with a similarcomplaint to that canvassed in the appellant's first issue in this appeal. Like in that case, the complaint hererelates to the Court's failure to consider the appellant's Reply brief. Dealing with the cogency of a Reply brief,this Court [per Nweze, JSC], had this to say at pages 18 et seq: ...the function of a reply brief is to refute the newarguments in the respondent's brief, that is, a reply brief is usually filed in response to new issues raised in therespondent's brief, Sakati v Bako and Anor (2015) LPELR -24739 (SC) 25; Godsgift v. State (supra); Unity BankPlc v. Bouari (2008) LPELR -3411 (SC) 29-30; B-C; Cameroon Airlines v. Otutuizu (2011) LPELR-827 (SC) 40 -41;C-A; Longe v FBN Plc [2010] 2-3 SC 61; Mozie and Ors v. Mbamalu and Ors (2006) LPELR -1922 (SC) 22; A-C.Although, it is not mandatory for an appellant to file a reply brief, however, where a respondent's brief raises apoint of law not covered in his (appellant's) brief, he (appellant) ought to file a reply (brief). Indeed, where hefails to do so (that is, fails to file a reply brief) without an oral reply to the points raised in the respondent's brief,he may be deemed to have conceded to the points of law or issues so raised in the respondent's brief.The cases on this point are many: they are legion. Only one or two may be cited here, Godsgift v State (supra);Longe v FBN Plc(supra); Harka Air Services (Nig) Ltd v. Keazor [2011] 6-7 SC (Pt.II) 1; Dairo v Union Bank [2007)7 SCNJ 13; Mini Lodge Ltd v. Ngei and Anor (2009) LPELR- 1877 (SC) 48; C-F; A.C.B. v. Apugo [1995] 6 NWLR(Pt.399) 65; E.I.I.A v. C.I.E Ltd [2006] 4 NWLR (Pt.969) 119; Popoola v. Adeyemo [1992] 8 NWLR (Pt.257) 1;Akinrinmade v Lawal [1996] 2 NWLR (Pt.429) 218; Musaconi Ltd v. Aspinall (2013) LPELR-20745 (SC) 21-22.Unarguably, the appellant's defence included not only the points he canvassed in the main brief but also hisreply to the points of law which the respondent agitated in the brief urging the trial Court to find in favour of theappellant's guilt, as charged.... Surely, by excluding the appellant's counsel from replying to the respondent'spoint of law, the trial Court's approach, as the Lower Court rightly found, denied the appellant of his right to fairhearing. After all, the test for measuring the fairness of the proceedings in a Court of first instance is theimpression of any reasonable person who was present at the trial, Otapo v. Sunmonu and Ors [1987] NWLR(Pt.58) 587; Obaro v. Hassan (2013) LPELR - 20089 (SC) 32-33; E-B; Tunbi v. Opawole [2000] 2 NWLR (Pt.644)275. Having denied the appellant's counsel the said right, there, can be no doubt that the trial Court wasequally, deprived of its enormous benefits. Its inevitable consequence was that a miscarriage of justice wasoccasioned on the appellant, Okafor and Ors v. A.G, Anambra and Ors (supra); Obodo v. Olomu (supra); Adigunv. A.G. Oyo State (supra). I thus, entirely, endorse the Lower Court's conclusion that this approach of the trialCourt vitiated his entire proceedings and effectively rendered them void and of no effect A.G, Rivers State v. Udeand Ors (2006) LPELR -626 (SC) 19; B-D.Dealing with this Court's attitude to the right to fair hearing, Nweze, JSC, maintained, at pages 9 -14; E - E, that:...its attitude to the fair hearing provisions has been to seek after the highest possible ideal of justice andfairness.Only a handful of cases will be cited here to illustrate this attitude, Ogboh and Anor v FRN (2002) LPELR -2285(SC) 15; A-C; Igboho, Irepa LGC and Anor v. T. B. S. C and Anor (1988) LPELR -1449 (SC) 16; D-E; The State, Exparte Joseph Ajidasile Olakunrin and Ors v. Oba Alaiyeluwa Ogunoye, the Olowo of Owo and Ors [1985] 5 SC 161,193, 233; Akere and Ors v Gov of Oyo State and Ors (2012) LPELR -7806 (SC) 67; B-D. Others include: Adegoke vAdibi (1992) 5 NWLR (Pt.242) 410, 420; Odiase v. Agho (1972) 1 All NLR (Pt.1) 170; Ejowhomu v. Edok-EterMandilas Ltd [1986] 5 NWLR (Pt.39) 1; Oje v. Babalola [1991] 4 NWLR (Pt.185) 267; Abbas and Ors v. Mogaji andOrs [2001] 11 SC 1, 14; Hart v. Military Governor of Rivers State [1976] 11 SC 211; LPDC v. Fawehinmi [1985] 2NWLR (Pt.7) 300, 347; Baba v. N.C.A.T.C. [1991] 5 NWLR (Pt.192) 388, 414 and so on. This, unarguably, was thecontext that yielded this Court's opinion in Kim v State (1992) LPELR -1691 (SC) 11-12; F-E that: Human rights inour written Constitution mark a standard of behaviour which we share with all civilized countries of the word.Since the United Nations Universal Declaration of Human Rights in 1948, though it is still left for various membernations to determine which rights from the plethora of rights then declared they would wish to incorporate intotheir domestic laws, once incorporated, their application lose the character of insular isolationism. Rather theyassume a universal character in their standard of interpretation and application. One of those universalcharacters of their breach is that, in case of a right to fair hearing, once it is duly established that it has beenbreached in a judicial proceeding, it vitiates the proceeding. If therefore, I find that it was breached in this case, Ishall have no alternative but to allow the appeal, Michael Uda Udo v. The State [1988] 3 NWLR (Pt.82) 316;Galas Hired v. The King (1944) A.C. 149; Dixon Gokpa v. IGP (1961) All NLR 423; R v. Mary Kingston 32 C. App. R.183; and Godwin Josiah v. The State [1985] 1 NWLR (Pt.1) (sic). And fair hearing in this respect compendiatesnot only compliance with the two rules of natural justice - audi alteram partem and nemo judex in causa sua. Itentails complying with all the provisions of that section of the Constitution. It also entails doing, during thecourse of the trial, all things which will make an impartial observer leaving the Court room to believe that thetrial has been balanced and fair to both sides to the trial. [Italics supplied for emphasis] It is for these, and themore detailed, reasons in the leading judgment that I, too, shall allow this appeal."Per NWEZE, J.S.C. (Pp. 19-24,Paras. D-F) - read in context

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3. APPEAL - REPLY BRIEF: Effect where Court fails to consider a reply brief"The failure or denial of fair hearing in this appeal is the fact that the Lower Court, in considering the appealbefore it, had erroneously stated the fact, in its judgment at page 219 thereof, that the learned Counsel for theAppellant before it did not file a Reply Brief in response to the Respondent's argument that the Notice andGrounds of Appeal and the Additional Grounds of Appeal were filed in breach of Order 3 Rule 2(3) of the Court ofAppeal Rules, 2002. In actuality, the Appellant had filed the Appellant's Reply Brief and joined issues on thepoint. With this erroneous stance of the Lower Court, the Court did not consider the substance of the Reply Briefin its judgment. ?Before us, the Counsel for the Respondent conceded that the Appellant, at the Lower Court, didin fact file the Reply Brief and that the Lower Court, inadvertently, did not refer to the Reply Brief in itsjudgment. It was not at all considered. The right of the Appellant to file Reply Brief in response to the issuesraised and argued in the Respondent's Brief is assured by Order 6 Rule 5 of the Court of Appeal Rules, 2002.That right of the Appellant under the said Rules, then prevailing, is not in any doubt. I agree, as my learnedbrother stated in the lead judgment, that there was breach of the right of Appellant herein to fair hearing by theLower Court when it failed to consider his Reply Brief before its final judgment. His right to fair hearingguaranteed by Section 36(1) of the 1999 Constitution, as amended, has thus been violated. The authorities,including DENLOYE v. MEDICAL & DENTAL PRACTITIONERS DISCIPLINARY COMMITTEE (1968) 5 N.S.C.C. 260;KOTOYE v. C.B.N (1989) 1 N.W.L.R. (Pt.98) 419; ORUGBO & ANOR. v. UNA & ORS (2002) 16 N.W.L.R. (Pt.792)175; PAM & ANOR. v. MOHAMMED (2008) 16 N.W.L.R. (Pt.1112) 1; DUKE v. GOVERMENT OF CROSS-RIVER STATE& ORS. (2013) 8 N.W.L.R. (Pt.1356) 347, are unanimous that when there is established a violation of the right tofair hearing; there is thereby a breach of the fundamental procedure culminating in the final decision. Thisbreach of the fundamental procedure vitiates or nullifies the entire proceedings, no matter how well conducted.As stated in ORUGBO & ANOR. v. UNA & ORS. (supra) at page 199 "fair hearing lies in the procedure followed inthe case, not in the correctness of the decision." When a breach of the right to fair hearing is established,miscarriage of justice is implied. This presumption imposes on the beneficiary of the judgment or decision theonus of establishing that there was infact no miscarriage of justice. The Respondent herein has not dischargedthat burden. In this particular case, the error is substantial. It has not been satisfactorily established that theerror in this case was minimal or not substantial. Nnaemeka-Agu, JSC stated in OJE v. BABALOLA (supra) at page282 - that it is not every mistake or error in a judgment that will result in the appeal being allowed. It is onlywhen it is substantial, in that it has occasioned a miscarriage of justice that the appellate Court is bound tointerfere. See ONAJOBI V. OLANIPEKUN (1985) 4 .S.C. (Pt.2) 156, 163; GWONTO v. THE STATE (1983) 1 S.C.N.L.R.142, pp.152 - 153." A judicial hearing conducted in violation of the mandatory provisions of Section 36(1) of the1999 Constitution prima facie occasions a miscarriage of justice as it has not been "conducted in accordancewith all the legal norms designed to ensure that justice is done at all costs to all parties": DUKE v. GOVERNMENTOF CROSS-RIVER STATE (supra) at 366. On this issue alone, and without delving into the merits of the case, Iallow the appeal."Per EKO, J.S.C. (Pp. 25-28, Paras. B-C) - read in context

4. CONSTITUTIONAL LAW - RIGHT TO FAIR HEARING: Meaning and nature of the doctrine of fair hearing"Section 36 (1) of the 1999 Constitution as amended provides: "36(1) In the determination of his civil rights andobligations, including any question or determination by or against any government or authority, a person shallbe entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law andconstituted in such manner as to secure its independence and impartiality." What is fair hearing? In Duke VsGovt. of Cross River State & Ors (2013) 8 NWLR (Pt.1356) 347 @ 366 C it was held by this Court as follows:'The term 'fair hearing' within the context of Section 36 (1) of the 1999 Constitution, is that a trial ought to beconducted in accordance with all the legal norms designed to ensure that justice is done at all cost to all parties.The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. Itimplies that each side has the right to know what case is being made against it and given ample opportunity toreact or respond thereto." (Underlining mine) In Mohammed Vs Olawunmi & Ors (1990) 2 NWLR (Pt.133) 458 @485 B-C it was held per Nnaemaka-Agu, JSC, "The right to fair hearing entrenched in Section 33 (1) of the 1979Constitution entails not only hearing a party on any issue which could be resolved to his prejudice, but alsoensuring that the hearing is fair and in accordance with the twin pillars of justice, namely audi alteram partemand nemo judex in causa sua." Further, in Pam & Anor. Vs Mohammed (2008) 16 NWLR (Pt.1112) 1 @ 48 E-F HisLordship, Oguntade, JSC stated thus: "The question of fair hearing is not just an issue of dogma. Whether or nota party has been denied of his right to fair hearing is to be judged by the nature and circumstancessurrounding a particular case; the crucial determinant is the necessity to afford the parties equal opportunity toput their case before the Court before the Court gives its judgment." See also: Denloye Vs Medical and DentalPractitioners Disciplinary Committee (1968) LPELR- 25526 (SC); (1968) 5 NSCC 260. It is thus clear from theauthorities referred to above that the principle of fair hearing is fundamental and must be observed in theconduct of any judicial or quasi judicial proceedings, The requirement that a party must be given ampleopportunity to present his case means that the Court has an obligation to consider all the material placed beforeit by all parties before reaching a final decision."Per KEKERE-EKUN, J.S.C. (Pp. 11-13, Paras. C-D) - read in context

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5. CONSTITUTIONAL LAW - BREACH OF RIGHT TO FAIR HEARING: Effect of absence of fair hearing on Courtproceedings"The effect of failure to observe the principle of fair hearing is that the proceedings are null and void, no matterhow well conducted. His Lordship, Tobi, JSC had this to say in Orugbo & Anor. Vs Una & Ors. (2002) 16 NWLR(Pt.792) 175 @ 199 A-D: "The fair hearing principle entrenched in the Constitution is so fundamental in thejudicial process or the administration of justice that breach of it will vitiate or nullify the whole proceedings, anda party cannot be heard to say that the proceedings were properly conducted and should be saved because ofsuch proper conduction. Once an appellate Court comes to the conclusion that there is a breach of the principleof fair hearing, the proceedings cannot be salvaged as they are null and void ab initio. After all, fair hearing liesin the procedure followed in the case, not in the correctness of the decision. Accordingly, where a Court arrivesat a correct decision in breach of the principle of fair hearing, an appellate Court will throw out the correctdecision in favour of the breach of fair hearing, See generally: Ceekay Traders Ltd. Vs General Motors Co. Ltd.(1992) 2 NWLR (Pt.222) 132; University of Nigeria Teaching Hospital Management Board Vs Nnoli (1994) 8 NWLR(Pt.363) 376." (Underlining mine) See also: Kotoye v. CBN (1989) 1 NWLR (Pt.98) 419 @ 488 C - D; Wagbatsomav. FRN (unreported) SC.517/2015 delivered on 9/2/2018; Oyeyemi v. Owoeye (2017) LPELR - 41903 (SC) @ 56 B- E."Per KEKERE-EKUN, J.S.C. (Pp. 13-14, Paras. D-F) - read in context

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KUDIRAT MOTONMORI OLATOKUNBO KEKERE-

EKUN, J.S.C. (Delivering the Leading Judgment): The

respondent herein, as plaintiff before the High Court of

Rivers State sitting at Port Harcourt, instituted an action

against the appellant, as defendant where, by paragraph 30

of its statement of claim dated 30/12/1996 filed on

6/1/1997, it sought the following reliefs:

"a) N502,400.00 being balance outstanding against the

defendant in respect of electrical work carried out on its

behalf by the plaintiff in September 1995 and July 1996.

b) N1.9 million being damages and losses plaintiff suffered

by reason of the defendant's failure to pay the contract

price as and when due.

c) N20 million general damages for breach of contract and

libel of the plaintiff by the defendant.

d) 25% interest per annum on the total sum of

N22,402,400.00 from December 1996 until judgment is

delivered in the matter and thereafter 25% interest per

annum thereon until full payment thereof is made."

Pleadings were filed and exchanged and evidence led by

the parties in respect of their positions. At the conclusion of

the trial the Court found in favour of

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the plaintiff and awarded reliefs (a) and (b) as claimed. It

also awarded N10 million as general damages for breach of

contract and libel. The defendant/appellant was dissatisfied

with the judgment and appealed to the Court of Appeal,

Port Harcourt Division.

The facts that gave rise to the suit were ably summarised

by the Court below at pages 214-216 of the record, I adopt

the summary of facts hereunder as follows:

"The plaintiff and the defendant entered into a contract for

the plaintiff to construct an 11 KVA electric power line. The

cost of the contract was N1,405,500 (one million, four

hundred and five thousand five hundred naira).

The plaintiff completed the construction of the 11 KVA

electric power line in September 1995 and demanded

payment. The defendant did not pay the debt.

In July 1996, the defendant and its neighbour, Belhope

Plastics Ltd. gave the plaintiff a contract jointly. The

contract sum was N193,000 (one hundred and ninety three

thousand naira). On completion of the contract Belhope

Plastics Ltd paid its own share of N96,500, while the

defendant did not pay its own share of N96,500 despite

demands for payment by the

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plaintiff.

The defendants indebtedness to the plaintiff stood at

N1,502,400 (one million five hundred and two thousand

four hundred naira) made up of N1,405,500 on the 11 KVA

contract and N96,500 on the contract shared with Belhope

Plastics Ltd. Union Bank Plc (the plaintiff Bankers) stopped

all credit facilities to the plaintiff, and this affected the

execution of plaintiffs SHELL contract which SHELL

terminated and which the plaintiff says caused him a loss of

N1.9m.

Due to mounting pressure on the plaintiff from its Bankers

Union Bank Plc to pay up the loans advanced to it to

perform the contracts, the plaintiff authorized the

defendant to pay its debt directly to Union Bank Plc. The

authorization was an irrevocable authority. See Exhibit B.

On receipt of Exhibit B, Union Bank Plc wrote to the

defendant to make confidential inquiry about the plaintiff

and to confirm the authenticity of Exhibit B. The defendant

replied Union Bank Plc.

See Exhibit C. It reads in part.

"... we wish to emphasize that this company has no

business relationship whatsoever with SAMOTECH LTD.

Therefore SAMOTECH LTD. irrevocable authority letter

dated

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19/7/96 should be regarded null and void. We dissociate

ourselves from any transaction/s that may exist between

your bank and SAMOTECH LTD."

After exhibit C the defendant paid the plaintiff N1 million.

This payment left outstanding balance of N502,500.

After due trial on the plaintiffs statement of claim, the

defendants further amended statement of defence, and the

reply to statement of defence, the learned trial Judge

E.N.T. Ebette J handed down his judgment on 25/3/04 in

favour of the plaintiff against the defendant.

The concluding part of the judgment reads:

"...In the event, it is the view of the Court that the plaintiff

has proved that the defendant owes it the sum of N502,000

being the outstanding balance unpaid for the contracts it

awarded to the plaintiff and the sum of N1.9 million being

the amount sustained as a loss for the termination of the

contract awarded to it as shown in Exhibit C. The plaintiff

is also entitled to the sum of N10,000,000 (ten million

naira) as general damages for the breach of contract and

Libel of the plaintiff by the defendant."

In a considered judgment delivered on 12/7/2007 the Court,

in dismissing the

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appeal, held thus at pages 242-243 of the record:

"I agree with the learned trial judge bearing in mind

the circumstances in which Exhibit C was written, any

reasonable man would view the respondent with

disgust, deceitful, untrustworthy, a trickster,

dishonest. The banker customer relationship was

seriously disrupted. The respondent's business

nosedived. The Bank did not want to have any

relationship with the respondent after it received

Exhibit C, except to collect and quickly too, all the

money advanced to the respondent. Exhibit C is

clearly defamatory of the respondent. For the

avoidance of doubt the respondent is entitled to the

following:

1. N502,400.00 (Five Hundred and Two Thousand,

Four Hundred Naira)

2. N10,000,000.00 (Ten Million Naira).

The appeal fails and it is accordingly dismissed. There

shall be no order on costs."

The appellant, still aggrieved, further appealed to this

Court vide a notice of appeal dated and filed on 13/7/2007

containing two grounds of appeal. The appellant realising

that the grounds of appeal were not grounds of law alone,

discarded the original notice of appeal and filed an

application for the

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trinity prayers i.e. extension of time to seek leave to appeal,

leave to appeal and extension of time to appeal against the

judgment of the Lower Court. The application was granted

on 11/6/2008 and the appellant was given 60 days within

which to file its notice of appeal. The said notice of appeal

containing three grounds of appeal was filed on 01/10/2008

and can be found at pages 251- 254 of the supplementary

record.

The parties duly filed and exchanged their respective briefs

as required by the Rules of this Court. At the hearing of the

appeal on 9/1/2018, C.A. Adolor Esq. adopted and relied on

the appellant's brief filed on 12/8/2008 in urging the Court

to allow the appeal. E.C.N. Igbokwe Esq. adopted and

relied on the respondent's brief deemed filed on 28/4/2010

in urging the Court to dismiss the appeal,

At page 9 of its brief, the appellant formulated 3 issues for

determination which are reproduced hereunder:

"1. Whether from the circumstances of this case the

learned Justices of the Court of Appeal afforded the

appellant fair hearing when they held that "the

learned counsel for the appellant did not file a Reply

Brief to enable him respond

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to the submissions contained in the Respondent's

brief." (Ground 1)

2. Whether it was not wrong for the learned Justices

of the Court of Appeal to have held that the award of

damages for libel was not improper whereas the

complaint of the appellant in the Court of Appeal is

that it was wrong for the learned trial judge to award

general damages of N10 million for both breach of

contract and libel without categorizing the award for

each cause of action. (Ground 2)

3. Whether it was not wrong for the learned Justices

of the Court of Appeal to have relied on the evidence

of PW2 to hold that Exhibit C was published and

therefore defamatory."(Ground 3)

Learned counsel for the respondent adopted the three

issues.

Issue 1

In support of this issue, learned counsel for the appellant

submitted that in the course of its judgment, the Lower

Court held that it failed to file a Reply brief in reaction to

the preliminary objection raised in the respondent's brief.

He submitted that contrary to the Court's observation, it

filed its Reply brief, though out of time, with leave of the

Lower Court granted on 14/2/2007. The said brief was

deemed duly filed

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and served on that date. He referred to the Reply Brief at

pages 204-209 of the record and the order of the Lower

Court extending the time to file the process at page 210 of

the record. He submitted that the appellant pointedly

addressed the issues raised in the respondent's brief,

particularly as it relates to the lump sum of N10 million

awarded by the trial Court as general damages for both

breach of contract and libel and the failure of the plaintiff

to prove the allegation of defamation.

He submitted that the failure of the Lower Court to

consider its Reply brief amounts to a denial of its

constitutional right to fair hearing as enshrined in Section

36 of the 1999 Constitution of the Federal Republic of

Nigeria. He also referred to Olagunyi Vs Oyeniran

(1996) 6 NWLR (Pt.453) 127 @ 146 B – C; Mohammed

v. Olawunmi (1990) 2 NWLR (Pt.133) 458 @ 485 B-C;

Ejeka Vs The State (2003) 7 NWLR (Pt.819) 408 @

421 C-E. He contended that had the Lower Court

considered the submissions in the Reply Brief, it would

have reached a different conclusion. He submitted that the

effect of the breach of the appellant's right to fair hearing

is that it vitiates the

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proceedings and renders them null and void. He referred

to: Military Governor Imo State Vs Nwauwa (1997) 2

NWLR (Pt.490) 675 @ 708 H; Olagunyi Vs Oyeniran

(supra) and urged the Court to set aside the judgment of

the Lower Court.

Learned counsel for the respondent prefaced his

submissions in response with this concession at paragraph

4.1 of his brief:

“…I concede that the appellant filed a reply brief and

that the Court of Appeal inadvertently did not refer to

the Reply brief."

He however submitted, that notwithstanding this omission,

the Lower Court afforded the appellant "full, adequate and

complete fair hearing" and that the appellant's complaint is

thus untenable. He submitted that the authority of

Mohammed Vs Olawunmi (supra) is not applicable to

the circumstances of this case, as in that case, the

application in question was granted without a hearing. He

submitted that the other authorities relied upon by the

appellant do not support its case. He relied on Ejeka Vs

The State (supra) cited by learned counsel to the effect

that it is not every mistake or error in a judgment that

would result in an appeal against it being allowed.

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He argued that the omission of the Lower Court to refer to

the appellant's brief is an unsubstantial error, which has

not occasioned a miscarriage of justice. He referred to the

observation of the Court that "not filing a Reply Brief or

responding to the above submissions is in no way fatal" as

an indication that the absence of the appellant's Reply Brief

did not affect the finding and decision of the Court.

He submitted that the purpose of a Reply Brief is to

respond to any new points arising from the respondent's

brief and not an opportunity for the appellant to take a

second bite at the cherry or to add more flesh to his earlier

submissions. He contended that the only new issue raised

in the respondent's brief was in relation to the competence

of the grounds of appeal, which was resolved in the

appellant's favour. He noted that the only ground of appeal

struck out by the Court was Ground 3 because no issue was

distilled from it. He argued that other submissions in the

Reply Brief which related to the issue of accord and

satisfaction were fully argued in the appellant's main brief

and that the said issues were duly considered and resolved

against the

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appellant under Issue 2 in the judgment. He submitted that

the issue of libel was also considered and resolved at pages

235-242 of the record.

He reiterated his contention that the appellant did not

suffer any injustice by the omission of the Lower Court to

consider the Reply Brief. He submitted, relying on Oje Vs

Babalola (1991) 4 NWLR (Pt.185) 282 C, that this

Court will only interfere with the judgment of the Court

below if the error or omission is so substantial as to

occasion a miscarriage of justice.

Section 36 (1) of the 1999 Constitution as amended

provides:

"36(1) In the determination of his civil rights and

obligations, including any question or determination

by or against any government or authority, a person

shall be entitled to a fair hearing within a reasonable

time by a Court or other tribunal established by law

and constituted in such manner as to secure its

independence and impartiality.”

What is fair hearing? In Duke Vs Govt. of Cross River

State & Ors (2013) 8 NWLR (Pt.1356) 347 @ 366 C it

was held by this Court as follows:

'The term 'fair hearing' within the context of Section

36 (1) of the 1999

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Constitution, is that a trial ought to be conducted in

accordance with all the legal norms designed to

ensure that justice is done at all cost to all

parties. The principle of fair hearing is that both

sides must be given an opportunity to present their

respective cases. It implies that each side has the

right to know what case is being made against it and

given ample opportunity to react or respond thereto."

(Underlining mine) In Mohammed Vs Olawunmi & Ors

(1990) 2 NWLR (Pt.133) 458 @ 485 B-C it was held per

Nnaemaka-Agu, JSC, "The right to fair hearing

entrenched in Section 33 (1) of the 1979 Constitution

entails not only hearing a party on any issue which

could be resolved to his prejudice, but also ensuring

that the hearing is fair and in accordance with the

twin pillars of justice, namely audi alteram partem

and nemo judex in causa sua." Further, in Pam & Anor.

Vs Mohammed (2008) 16 NWLR (Pt.1112) 1 @ 48 E-F

His Lordship, Oguntade, JSC stated thus: "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

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surrounding a particular case; the crucial

determinant is the necessity to afford the parties

equal opportunity to put their case before the Court

before the Court gives its judgment."

See also: Denloye Vs Medical and Dental Practitioners

Disciplinary Committee (1968) LPELR- 25526 (SC);

(1968) 5 NSCC 260. It is thus clear from the authorities

referred to above that the principle of fair hearing is

fundamental and must be observed in the conduct of any

judicial or quasi judicial proceedings, The requirement that

a party must be given ample opportunity to present his

case means that the Court has an obligation to consider all

the material placed before it by all parties before reaching

a final decision.

The effect of failure to observe the principle of fair hearing

is that the proceedings are null and void, no matter how

well conducted. His Lordship, Tobi, JSC had this to say in

Orugbo & Anor. Vs Una & Ors. (2002) 16 NWLR

(Pt.792) 175 @ 199 A-D:

"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

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proceedings, and a party cannot be heard to say that

the proceedings were properly conducted and should

be saved because of such proper conduction.

Once an appellate Court comes to the conclusion that

there is a breach of the principle of fair hearing, the

proceedings cannot be salvaged as they are null and

void ab initio. After all, fair hearing lies in the

procedure followed in the case, not in the correctness

of the decision.

Accordingly, where a Court arrives at a correct

decision in breach of the principle of fair hearing, an

appellate Court will throw out the correct decision in

favour of the breach of fair hearing, See generally:

Ceekay Traders Ltd. Vs General Motors Co. Ltd.

(1992) 2 NWLR (Pt.222) 132; University of Nigeria

Teaching Hospital Management Board Vs Nnoli

(1994) 8 NWLR (Pt.363) 376."

(Underlining mine)

See also: Kotoye v. CBN (1989) 1 NWLR (Pt.98) 419 @

488 C – D; Wagbatsoma v. FRN (unreported)

SC.517/2015 delivered on 9/2/2018; Oyeyemi v.

Owoeye (2017) LPELR – 41903 (SC) @ 56 B – E.

I shall now apply the above principles to the facts of this

case. For the hearing of the appeal,

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the processes before the Lower Court were (1) the

appellant's brief filed on 24/8/2005 at pages 154-176 of the

record; (2) the respondent's brief filed on 2/12/2005 at

pages 181-199 of the record and (3) the appellant's Reply

Brief dated 15/2/2006 at pages 204-209 of the record which

was deemed filed on 14/2/2007 pursuant to an order of the

Lower Court of same date.

Therefore, in determining the appeal and for all the parties

to have equal opportunity of being heard, all the processes

had to be considered. Now, in the course of the judgment,

the Court below noted at page 218 of the record that

learned counsel for the respondent had argued that the

Notice and Grounds of Appeal and the additional ground of

appeal were in breach of Order 3 Rule 2 (3) of the Court of

Appeal Rules and that there was unnecessary repetition in

some of the grounds. The learned Justice who wrote the

lead judgment proceeded at page 219 of the record to state

as follows:

"Learned counsel for the appellant did not file a Reply

to enable him respond to the above submissions. Not

filing a Reply brief or responding to the above

submissions is in no way fatal. This is so because the

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court has the power suo motu to strike out

incompetent grounds of appeal. See: Order 3 Rule

2(2),(3) and (4) of the Court of Appeal Rules.

If indeed the appellant failed to file a Reply brief, the above

position taken by the Court would have been in order.

However, where the Court states that the appellant did not

file a Reply brief when the process was properly before it, it

creates a different scenario altogether. It is a clear

admission that the appellant's case was not considered in

its entirety. This fact was admitted by learned counsel for

the respondent in paragraph 4.1 of his brief. Since the

Court erroneously held that the appellant did not file a

Reply brief, there was no opportunity for it to consider

whether the Reply brief met the requirements of a Reply

brief. It is not for learned counsel for the respondent to

contend before us that the only new issue raised in the

respondent's brief had been addressed in the main brief or

that the Reply brief was a re-hash of arguments in the main

brief.

Learned counsel for the appellant contends that apart from

addressing the objection raised by the respondent, the

Reply Brief also contained

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submissions on other aspects of the appeal relevant to its

case. Order 6 Rule 5 of the Court of Appeal Rules 2002

permits an appellant to file a Reply Brief, if necessary.

Having exercised its right under the Rules, by filing a Reply

Brief, the Lower Court had a duty to consider it and make

necessary findings in respect of the arguments proffered

therein. The Court could only reach a determination as to

the competence of the Reply brief or the materiality of the

submissions of learned counsel after giving it due

consideration. Having held that the appellant failed to file a

Reply Brief, when it had in fact filed one, means that the

entirety of its case was not considered by the Court before

it reached its decision. It may well be that if the Court had

considered the Reply brief it could have found that it did

not provide any material assistance to the Court in

resolving the issues before it. However, it would have come

to that conclusion fully seised of all the relevant material

submitted by the parties.

The argument of learned counsel for the respondent to the

effect that there has been no miscarriage of justice in this

case and that the Lower Court's

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omission is not fatal, is misconceived. A similar submission

was made in Kotoye vs C.B.N. (supra). The Court held

that it was not necessary to consider whether or not the

order made in that case was more beneficial to the

appellants or the respondents. It held that once it is

established that a party entitled to be heard was not heard,

a breach of the principles of fair hearing is established. It

concludes the matter and the proceedings are vitiated.

I am satisfied that there was a breach of the appellant’s

right to fair hearing by the Lower Court when it failed to

consider its Reply Brief. This issue is accordingly resolved

in the appellant's favour.

The net effect of the resolution of this issue in the

appellant's favour is that the entire proceedings before the

Lower Court are vitiated. They are rendered null and void.

In the circumstances, the judgment of the Court of Appeal,

Port Harcourt Division in CA/PH/191/2004 delivered on

12/7/2007 is hereby set aside. It is ordered that the appeal

be remitted to the President of the Court of Appeal for re-

assignment to a different panel of that Court for

expeditious hearing and determination.

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The parties shall bear their respective costs in the appeal.

Appeal allowed.

MUSA DATTIJO MUHAMMAD, J.S.C.: I had a preview of

the lead judgment of my learned brother KUDIRAT

MOTONMORI OLATOKUNBO KEKERE-EKUN JSC just

delivered and adopt the reasoning and conclusion therein

as mine in allowing the meritorious appeal. I abide by the

consequential orders reflected in the lead judgment.

CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of

reading the draft of the leading judgment which my Lord,

Kekere-Ekun, JSC, just delivered now. I agree with His

Lordship that this appeal, being meritorious, should be

allowed.

My Lords, in Onuwa Kalu v The State (2017) LPELR -

42101 (SC), this Court [per Nweze, JSC] dealt with a

similar complaint to that canvassed in the appellant's first

issue in this appeal. Like in that case, the complaint here

relates to the Court's failure to consider the appellant's

Reply brief.

Dealing with the cogency of a Reply brief, this Court [per

Nweze, JSC], had this to say at pages 18 et seq:

...the function of a reply brief is to refute the new

arguments

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in the respondent's brief, that is, a reply brief is

usually filed in response to new issues raised in the

respondent's brief, Sakati v Bako and Anor (2015)

LPELR -24739 (SC) 25; Godsgift v. State (supra);

Unity Bank Plc v. Bouari (2008) LPELR -3411 (SC)

29-30; B-C; Cameroon Airlines v. Otutuizu (2011)

LPELR-827 (SC) 40 -41; C-A; Longe v FBN Plc [2010]

2-3 SC 61; Mozie and Ors v. Mbamalu and Ors (2006)

LPELR -1922 (SC) 22; A-C.

Although, it is not mandatory for an appellant to file a

reply brief, however, where a respondent's brief raises

a point of law not covered in his (appellant's) brief, he

(appellant) ought to file a reply (brief). Indeed, where

he fails to do so (that is, fails to file a reply brief)

without an oral reply to the points raised in the

respondent's brief, he may be deemed to have

conceded to the points of law or issues so raised in

the respondent's brief.

The cases on this point are many: they are legion.

Only one or two may be cited here, Godsgift v State

(supra); Longe v FBN Plc(supra); Harka Air Services

(Nig) Ltd v. Keazor [2011] 6-7 SC (Pt.II) 1; Dairo v

Union Bank[2007) 7 SCNJ 13; Mini Lodge Ltd v. Ngei

and Anor (2009)

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LPELR- 1877 (SC) 48; C-F; A.C.B. v. Apugo [1995] 6

NWLR (Pt.399) 65; E.I.I.A v. C.I.E Ltd [2006] 4 NWLR

(Pt.969) 119; Popoola v. Adeyemo [1992] 8 NWLR

(Pt.257) 1; Akinrinmade v Lawal [1996] 2 NWLR

(Pt.429) 218; Musaconi Ltd v. Aspinall (2013)

LPELR-20745 (SC) 21-22.

Unarguably, the appellant's defence included not only

the points he canvassed in the main brief but also his

r e p l y t o t h e p o i n t s o f l a w w h i c h t h e

respondent agitated in the brief urging the trial Court

to find in favour of the appellant's guilt, as charged....

Surely, by excluding the appellant’s counsel from

replying to the respondent's point of law, the trial

Court’s approach, as the Lower Court rightly found,

denied the appellant of his right to fair hearing. After

all, the test for measuring the fairness of the

proceedings in a Court of first instance is the

impression of any reasonable person who was present

at the trial, Otapo v. Sunmonu and Ors [1987] NWLR

(Pt.58) 587; Obaro v. Hassan (2013) LPELR – 20089

(SC) 32-33; E-B; Tunbi v. Opawole [2000] 2 NWLR

(Pt.644) 275.

Having denied the appellant's counsel the said right,

there, can be no doubt that the trial

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Court was equally, deprived of its enormous benefits.

Its inevitable consequence was that a miscarriage of

justice was occasioned on the appellant, Okafor and

Ors v. A.G, Anambra and Ors (supra); Obodo v. Olomu

(supra); Adigun v. A.G. Oyo State (supra). I thus,

entirely, endorse the Lower Court's conclusion that

this approach of the trial Court vitiated his entire

proceedings and effectively rendered them void and of

no effect A.G, Rivers State v. Ude and Ors (2006)

LPELR -626 (SC) 19; B-D.

Dealing with this Court's attitude to the right to fair

hearing, Nweze, JSC, maintained, at pages 9 -14; E - E,

that:

...its attitude to the fair hearing provisions has been

to seek after the highest possible ideal of justice and

fairness.

Only a handful of cases will be cited here to illustrate

this attitude, Ogboh and Anor v FRN (2002) LPELR

-2285 (SC) 15; A-C; Igboho, Irepa LGC and Anor v. T.

B. S. C and Anor(1988) LPELR -1449 (SC) 16; D-E;

The State, Ex parte Joseph Ajidasile Olakunrin and

Ors v. Oba Alaiyeluwa Ogunoye, the Olowo of Owo and

Ors [1985] 5 SC 161, 193, 233; Akere and Ors v Gov of

Oyo State and Ors (2012) LPELR -7806 (SC) 67; B-D.

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Others include: Adegoke v Adibi (1992) 5 NWLR

(Pt.242) 410, 420; Odiase v. Agho (1972) 1 All NLR

(Pt.1) 170; Ejowhomu v. Edok-Eter Mandilas Ltd

[1986] 5 NWLR (Pt.39) 1; Oje v. Babalola [1991] 4

NWLR (Pt.185) 267; Abbas and Ors v. Mogaji and Ors

[2001] 11 SC 1, 14; Hart v. Military Governor of

Rivers State [1976] 11 SC 211; LPDC v. Fawehinmi

[1985] 2 NWLR (Pt.7) 300, 347; Baba v. N.C.A.T.C.

[1991] 5 NWLR (Pt.192) 388, 414 and so on.

This, unarguably, was the context that yielded this

Court's opinion in Kim v State (1992) LPELR -1691

(SC) 11-12; F-E that:

Human rights in our written Constitution mark a

standard of behaviour which we share with all

civilized countries of the word. Since the United

Nations Universal Declaration of Human Rights in

1948, though it is still left for various member

nations to determine which rights from the plethora

of rights then declared they would wish to incorporate

into their domestic laws, once incorporated, their

application lose the character of insular isolationism.

Rather they assume a universal character in their

standard of interpretation and application. One of

those universal characters of their breach is

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that, in case of a right to fair hearing, once it is duly

established that it has been breached in a judicial

proceeding, it vitiates the proceeding. If therefore, I

find that it was breached in this case, I shall have no

alternative but to allow the appeal, Michael Uda Udo

v. The State [1988] 3 NWLR (Pt.82) 316; Galas Hired

v. The King (1944) A.C. 149; Dixon Gokpa v. IGP

(1961) All NLR 423; R v. Mary Kingston 32 C. App. R.

183; and Godwin Josiah v. The State [1985] 1 NWLR

(Pt.1) (sic). And fair hearing in this respect

compendiates not only compliance with the two rules

of natural justice - audi alteram partem and nemo

judex in causa sua. It entails complying with all the

provisions of that section of the Constitution. It also

entails doing, during the course of the trial, all things

which will make an impartial observer leaving the

Court room to believe that the trial has been balanced

and fair to both sides to the trial.

[Italics supplied for emphasis]

It is for these, and the more detailed, reasons in the leading

judgment that I, too, shall allow this appeal. I abide by the

consequential orders in the said leading judgment. Appeal

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allowed.

EJEMBI EKO, J.S.C.: The facts of the appeal are adroitly

summarised in the judgment just delivered by my learned

brother, KUDIRAT M. O. KEKERE-EKUN, JSC. I hereby

adopt the summary of the facts and the judgment.

I will only add a few comments by way of emphasis. The

failure or denial of fair hearing in this appeal is the fact

that the Lower Court, in considering the appeal before it,

had erroneously stated the fact, in its judgment at page 219

thereof, that the learned Counsel for the Appellant before it

did not file a Reply Brief in response to the Respondent's

argument that the Notice and Grounds of Appeal and the

Additional Grounds of Appeal were filed in breach of Order

3 Rule 2(3) of the Court of Appeal Rules, 2002. In actuality,

the Appellant had filed the Appellant's Reply Brief and

joined issues on the point. With this erroneous stance of the

Lower Court, the Court did not consider the substance of

the Reply Brief in its judgment.

Before us, the Counsel for the Respondent conceded that

the Appellant, at the Lower Court, did infact file the Reply

Brief and that the Lower Court, inadvertently, did

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not refer to the Reply Brief in its judgment. It was not at all

considered. The right of the Appellant to file Reply Brief in

response to the issues raised and argued in the

Respondent's Brief is assured by Order 6 Rule 5 of the

Court of Appeal Rules, 2002. That right of the Appellant

under the said Rules, then prevailing, is not in any doubt.

I agree, as my learned brother stated in the lead judgment,

that there was breach of the right of Appellant herein to

fair hearing by the Lower Court when it failed to consider

his Reply Brief before its final judgment. His right to fair

hearing guaranteed by Section 36(1) of the 1999

Constitution, as amended, has thus been violated. The

authorities, including DENLOYE v. MEDICAL & DENTAL

PRACTITIONERS DISCIPLINARY COMMITTEE (1968)

5 N.S.C.C. 260; KOTOYE v. C.B.N (1989) 1 N.W.L.R.

(Pt.98) 419; ORUGBO & ANOR. v. UNA & ORS (2002)

16 N.W.L.R. (Pt.792) 175; PAM & ANOR. v.

MOHAMMED (2008) 16 N.W.L.R. (Pt.1112) 1; DUKE

v. GOVERMENT OF CROSS-RIVER STATE & ORS.

(2013) 8 N.W.L.R. (Pt.1356) 347, are unanimous that

when there is established a violation of the right to fair

hearing; there is thereby a breach

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of the fundamental procedure culminating in the final

decision. This breach of the fundamental procedure vitiates

or nullifies the entire proceedings, no matter how well

conducted. As stated in ORUGBO & ANOR. v. UNA &

ORS. (supra) at page 199 "fair hearing lies in the

procedure followed in the case, not in the correctness of

the decision."

When a breach of the right to fair hearing is established,

miscarriage of justice is implied. This presumption imposes

on the beneficiary of the judgment or decision the onus of

establishing that there was infact no miscarriage of justice.

The Respondent herein has not discharged that burden. In

this particular case, the error is substantial. It has not been

satisfactorily established that the error in this case was

minimal or not substantial. Nnaemeka-Agu, JSC stated in

OJE v. BABALOLA (supra) at page 282 -

that it is not every mistake or error in a judgment that will

result in the appeal being allowed. It is only when it is

substantial, in that it has occasioned a miscarriage of

justice that the appellate Court is bound to interfere.

See ONAJOBI V. OLANIPEKUN (1985) 4 .S.C. (Pt.2) 156,

163; GWONTO v. THE

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STATE (1983) 1 S.C.N.L.R. 142, pp.152 - 153."

A judicial hearing conducted in violation of the mandatory

provisions of Section 36(1) of the 1999 Constitution prima

facie occasions a miscarriage of justice as it has not been

"conducted in accordance with all the legal norms designed

to ensure that justice is done at all costs to all parties":

DUKE v. GOVERNMENT OF CROSS-RIVER STATE

(supra) at 366.

On this issue alone, and without delving into the merits of

the case, I allow the appeal. The entire proceedings,

including the judgment, in the appeal No.CA/PH/191/2004

delivered on 12th July, 2007, is a nullity, and I so declare. I

abide by the consequential orders made in the lead

judgment.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of

reading in draft the lead Judgment of my learned brother

M. O. Kekere-Ekun, JSC, just delivered. I agree entirely

with the reasoning and conclusion reached. I do not have

anything to add. The appeal is meritorious, and it is hereby

allowed by me. I abide by all the orders contained in the

lead Judgment.

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Appearances:

C. A. Adolor, Esq. For Appellant(s)

E. C. N. Igbokwe, Esq. For Respondent(s)

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