CASE IDENTIFICATION
EDITORIAL SUMMARY
Editorial — not part of the judgment as delivered
Facts of the Case
The appellant, as substituted plaintiff, commenced an action in 1988 at the High Court of Rivers State, Port Harcourt, claiming a declaration of entitlement to control, management, and enjoyment of a property known as Plot 138, Gborokiri (Borokiri) Layout, Port Harcourt, and a perpetual injunction restraining interference. The claim was based on an irrevocable power of attorney granted to the original plaintiff by a lessee of the property. The property had been released to the lessee after being categorized as abandoned property during the civil war, but the 1st respondent later claimed ownership by purchase from the Rivers State Government. The 2nd respondent admitted selling the property as abandoned property.
The trial before Tabai, J., concluded on 21st June, 1993 with the dismissal of the appellant’s suit on the grounds that the appellant lacked locus standi. Dissatisfied, the appellant appealed to the Court of Appeal, Port Harcourt, which unanimously affirmed the trial court’s judgment. The appellant then brought a further appeal before the Supreme Court.
Issues for Determination
ISSUE 1: Whether the procedure whereby a substantial part of the defence up to judgment on the merits in the case was conducted in the absence of the plaintiff/appellant or counsel on his behalf, infringed the Rules of fair hearing.
ISSUE 2: Whether the power of attorney (exhibit B) in this case is a document that requires the consent of the Governor in a transaction affecting land.
ISSUE 3: Whether the power created under the irrevocable power of attorney (exhibit B) executed in favour of appellant’s late father survived the plaintiff’s late father for the benefit of the plaintiff/appellant by inheritance.
ISSUE 4: Was the Court of Appeal right in upholding the judgment of the trial court ordering a dismissal of the plaintiff/appellant’s case instead of striking it out.
Decision / Holding
The appeal was allowed. The Supreme Court held that the trial court’s procedure, in continuing to hear the defence and delivering judgment after granting the appellant’s counsel leave to withdraw without issuing a fresh hearing notice to the appellant, constituted a denial of the appellant’s right to fair hearing. The judgments of the trial court and the Court of Appeal were set aside, and a retrial de novo was ordered before the High Court of Rivers State.
Ratio Decidendi / Principles
CONSTITUTIONAL LAW — Fair Hearing — When a Party Has Not Been Afforded an Opportunity to Present His Case “If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as a fair hearing… Without fair hearing, the principles of natural justice are abandoned; and without the guiding principles of natural justice, the concept of the Rule of Law cannot be established and grow in the society.” Per Oguntade, JSC, in Ndukauba v. Kolomo & Anor (2005) NLC-2372000(SC) at p. 5; Paras B–C.
CONSTITUTIONAL LAW — Fair Hearing — Consequence of a Breach of Fair Hearing Renders Proceedings Null and Void “The denial of fair hearing to a party is often fatal to the judgment of the court… If a principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same; the proceedings will still be null and void.” Per Oguntade, JSC, in Ndukauba v. Kolomo & Anor (2005) NLC-2372000(SC) at p. 7; Paras A–B.
CONSTITUTIONAL LAW — Fair Hearing — Obligation of a Trial Court When Counsel Withdraws Mid-Trial “With respect to the trial Judge, I think he was mistaken not to have directed that a fresh hearing notice be served on the appellant when his counsel withdrew from the case. Had this been done, appellant would have been enabled to engage a new counsel or straighten his relationship with his old counsel or appear by himself.” Per Oguntade, JSC, in Ndukauba v. Kolomo & Anor (2005) NLC-2372000(SC) at p. 6; Paras C–D.
CONSTITUTIONAL LAW — Fair Hearing — The Principle of Audi Alteram Partem Requires Notice of Every Material Step in Proceedings “Fair hearing also imposes some obligations on the tribunal or court hearing the parties’ case, and fundamentally the court or tribunal should not take or hear evidence in a case or receive any submissions or representation from one party at the back of the other.” Per Kalgo, JSC, in Ndukauba v. Kolomo & Anor (2005) NLC-2372000(SC) at p. 10; Paras B–C.
Orders of Court
The appeal was allowed. The judgments of the trial High Court and the Court of Appeal were set aside. The suit was ordered to be tried de novo before the High Court of Rivers State. The sum of N10,000.00 costs was awarded against the respondents.
APPEARANCES
Counsel for the Appellant(s)
Dr. I. N. Ijiomah
Counsel for the Respondent(s)
Chief F. D. Lott (with him M. M. Kalu, Esq.)
Amicus Curiae
None
JUDGMENTS / OPINIONS OF THE COURT
Authoritative judicial text as delivered
Lead / Majority Opinion
— (DELIVERED BY OGUNTADE, J.S.C. (DELIVERING THE LEAD JUDGMENT):)
This appeal is another reminder of the old abandoned property conundrum from Rivers State. Augustus A. Ndukauba, now deceased commenced an action in 1988 against the respondents in this appeal claiming for:
(i)  A declaration that the plaintiff is the person entitled to the control, management and enjoyment of the    property known as Plot 138, Gborokiri (Borokiri) Layout (8 Etche Street) Port Harcourt until the determination of the building lease in respect of the said plot.
(ii)  A perpetual injunction restraining the defendants, their servants and/or agents from interfering with    plaintiff’s control, management and enjoyment of the said plot until the determination of the lease of the    property.
In the course of proceedings before the Port Harcourt High Court of Rivers State, the plaintiff Augustus A. Ndukauba died and his son, the present appellant was substituted for him. The parties later filed, and exchanged pleadings after which the case  proceeded to hearing before Tabai, J. (as he then was).
At the conclusion of hearing, the trial court in its judgment on 21/6/93 dismissed the appellant’s suit on the ground that “he has not shown any interest or locus standi to sue.”
Dissatisfied, the appellant brought an appeal before the Court of Appeal, Port Harcourt (Coram: Ogebe, Pats-Acholonu and Ikongbeh, JJCA). The said court in an unanimous judgment affirmed the judgment of the trial court and dismissed the appeal. The appellant has brought a further appeal before this court on five grounds of appeal.
P.1
The issues distilled for determination in this appeal from the five grounds of appeal are these:
“(i)    Whether the procedure whereby a substantial part of the defence up to judgment on the merits in the case    was conducted in the absence of the plaintiff/appellant or counsel on his behalf, infringed the Rules of fair    hearing.
(ii)Â Â Â Â Whether the power of attorney (exh
Dissenting Opinion(s)
None
REFERENCES
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