Judgment Summary

UBIAM

v.

UBIAM & ORS

(2020) LPELR-49645(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, March 30, 2020

CA/C/271/2016

Before Our Lordships

Mojeed Adekunle Owoade

Justice of the Court of Appeal

Yargata Byenchit Nimpar

Justice of the Court of Appeal

Muhammed Lawal Shuaibu

Justice of the Court of Appeal

Between

MR. THOMAS E. UBIAM

APPELANT(S)

And

1. PAULINUS IME UBIAM 2. MALACHY E. UBIAM 3. EMMANUEL E. UBIAM

RESPONDENT(S)

RATIO DECIDENDI
CONSTITUTIONAL LAW - RIGHT TO FAIR HEARING - Principles of fair hearing; whether a party who had
an opportunity of being heard but did not utilize it can bring an action for breach of fair hearing

"...The second issue formulated by the Appellant alleges breach of right to fair hearing which was over
ruled by the Court below. From the record of appeal, there was no time the matter was heard behind
the Appellant except the day judgment was delivered and which was known to him but he declined to
be in Court. There was no time the Respondents were given a hearing behind the Appellant. Fair hearing
is nothing more than an opportunity to be heard, once that opportunity is given; there cannot be a
breach of fair hearing. Whether a party who had an opportunity of being heard but did not utilize it can
bring an action for breach of fair hearing: "The law is quite settled that a complaint of lack of fair hearing
will only avail a party where he is able to show that he was denied the opportunity of presenting his
case. Whether or not he was denied fair hearing depends on the facts and circumstances of the case. It
has been held in several decisions of this Court that the crucial determinant of whether or not a party
has been denied fair hearing is whether the parties were afforded an equal opportunity to present their
case before judgment is delivered. The Court will take an objective view of the entire proceedings. The
true test of fair hearing is the impression of a reasonable man present at the trial and whether from his
observation, justice has been done in the case. See: Mohammed vs. Kano Native Authority (1968) 1 ALL
NLR 424; Akaninwo vs. Nsirim (2008) 1 SC (Pt. III) 151; Otapo vs. Sunmonu (1987) 2 NWLR (Pt. 58) 587 @
605. See AYOADE VS. STATE (2020) LPELR-49379(SC). The effect of a breach of the right to fair hearing is
that the entire proceedings and any judgment or order made therein become a nullity. See:AUDU VS.
F.R.N (2013) LPELR - 19897 (SC) 13; AKINFE VS. THE STATE (1988) 3 NWLR (PT. 85) 729; BAMGBOYE VS.
UNIVERSITY OF ILORIN (1999) 10 NWLR (PT. 622) 290. Conversely, it has been held severally, that where
the Court creates an enabling environment for the parties to ventilate their grievances, either in the
prosecution or defence of their case, the failure of a party to take advantage of such conducive
environment cannot be the basis for a complaint of lack of fair hearing. See MFA & ANOR. VS. INONGHA
(2014) 1-2 SC (PT. 1) 43; INAKOJU VS. ADELEKE (2007) LPELR - 1510 (SC). It is clear on the record that the
trial District Court the appellant participated in the visits to the various lands to be shared, he was in
Court all through and no party called any witness or testified because the nature of the case did not
warrant such procedure (see pages 208-210 of the record of Appeal). All that was before the District
Court was a list of properties to be shared, both participated in visits to locus in quo, appellant did not
challenge the list and did not raise any issue on the visits made to the various pieces of land. Appellant
did not make any application that was not considered by the day judgment was handed down, he was
aware and acquiesced all through. He cannot be heard to complain at this stage. The Appellant is merely
trying to use the term breach of fair hearing to whip up sentiments. Parties were treated equally and I
also do not see where there was a breach of fair hearing as would nullify the proceedings."

PRACTICE AND PROCEDURE - SERVICE OF COURT PROCESS(ES) - Whether a court is competent to

proceed to judgment when there is a pending application for transfer which was allegedly served on the
court

"The Appellant under the first issue questions the competence of the District Court to proceed to
judgment when there was a pending application for transfer which he alleged was served on the Court.
The Court below found otherwise because there was no proof of service before the Court and dismissed
the appeal. The ground upon which the appellant maintained his stands was because there was no
counter affidavit to Appellant's affidavit. As posited by the Court below, it is not every time that an
affidavit is not countered that it must be relied upon. It is trite that there are exceptions to the rule that
when facts in an affidavit are not countered they stand admitted, true and must be relied upon, see
EXCHANGE ASSURANCE (NIG) LTD. VS. ASWANI TEXTILE INDUSTRIES LTD. (1992) 3 NWLR (Pt. 227) 1
where it restated thus: "If an affidavit is self contradictory or if the facts contained therein are presumed
to be true and when taken together are not sufficient to sustain the prayers of the Applicant, it would be
needless for a Respondent to file a counter affidavit." Some the exceptions to the rule are as follows: i. If
the affidavit is self contradicting ii. If the facts contained therein are not worth countering by the filing of
a counter affidavit in opposition iii. Where the depositions in an affidavit is in conflict with documents or
documentary evidence in the case, the Court will reject the deposition even where there is no counter
affidavit. SeeC.C. ONYEMELUKWUE VS. WEST AFRICAN CHEMICAL COMPANY LIMITED (1995) 4 NWLR
(Pt. 387) 24 at 55. The Appellant therefore cannot go to town with the fact that his affidavit was not
countered and therefore the facts deposed therein are sacrosanct. As found by the Court below, the
Senior Magistrate was right in examining the affidavit along the record of the trial District Court to arrive
at a decision. The issue basically was one of service of a process in pending proceedings. It is settled that
Court processes are served by officers of Court called Bailiffs and they as a matter of practice swear to
affidavits of service setting out the facts, place, mode of service, date and the particular process served,
see A.G. ANAMBRA STATE VS. OKEKE (2002) LPELR-604(SC). The document allegedly served was a
motion seeking transfer of the suit before the District Court to the High Court for consolidation with
another pending suit before the chief Judge. The findings by the Court below was that the motion was
filed by a non party and was not served on the District Court. The record of proceedings did not also
indicate that the District Court was aware of the said motion. The argument of the Appellant is that the
proof of service was before the High Court. It is absurd for the Appellant to expect the record of service
before the High Court to be part of the record before the District Court without taking the proper step
to bring such a process into the record of the District Court. How did the Appellant expect that the
District Court would be bound by an application not made before it and not brought to its attention? A
more vitiating aspect of it was that the said process was filed a non party. A Court cannot go outside its
record to determine any issue, that would be perverse and perverse decisions are usually set aside, see
UGBOJI VS. STATE (2017) LPELR-43427 (SC) where the apex court described a perverse decision as
follows: "The decision is perverse, if among other things, the Court took into consideration matters
extraneous to the facts in issue, or matters which it ought not to have taken into consideration. See
ATOLAGBE vs. SHORUN (1985) NWLR (pt.2) 360. When a Court goes out of the proceedings to import
and rely on extraneous matters to predicate its decision on, the natural consequence of this cloister
justice is a miscarriage of justice. A decision that occasions a miscarriage of justice is also perverse. See
MISR vs. IBRAHIM (1975) 5 SC 55; IROLO vs. UKA (2002) 14 NWLR (pt.786) 195 (sc); FBN vs. OZOKWERE
(2013) LPELR - 21897 (SC)." Per EKO, J.S.C The appellant sought that the District Court should hand down
a perverse decision by looking beyond what was before it and to take a decision with regards to an
application also not before it. The motion seeking for transfer was not before the District Court and it
couldn't have done otherwise than to proceed to hand down its decision as it did. I also agree with the
Court below that the District court was not in error. More fundamentally, the application for transfer
was not made by a party in the proceedings before the District Court that is in HU/MISC.133/2014, it
was made by Mrs. Margaret Ekpo who was not a party in the matter before the District Court, this bring
up Section 37 of the Customary Law of Akwa Ibom State into play. It provides thus: "Any application for
an Order of Transfer made by either party shall operate as a stay of proceedings before the District
Court". The contention of the parties here is the phrase "either party" which the Appellant says includes
other persons who are not before the Court as parties. That interpretation is outlined and cannot be
stretched to include strangers to the proceedings. Why would a stranger or an interloper be allowed to
interfere with proceedings before the Court? To allow such interference is to open the doors of justice
to absurdity in judicial proceedings. Either party means one of the parties before the Court and not any
other person not listed in the matter before the Court. Obviously, the application for transfer even if
before the District Court as long as it was not made by either party, the Court has no business
countenancing with such an application and therefore, it was in order to proceed to hand down its
decision. There was nothing to inform its staying proceedings. The operative words in "any application
for transfer" is circumscribed by either party before the Court as the only ones qualified to make the
application that the Court can recognize and stay proceedings. It is certainly not for a stranger to the
proceedings. Therefore, the application upon which the Appellant seeks to stand on is not one
contemplated by the statutory provision and cannot enure him any benefit. More so, it was not shown
to have been served on the Registrar of the Court. The argument of the Appellant is preposterous and
holds no water. There is the issue raised by the Appellant alleging that the Court below raised the issue
of non service suo motu. I agree that a Court of law is not permitted to raise any issue suo motu and
proceed to determine the issue without giving parties an opportunity to address the Court before it is
determined, see COOKEY VS. FOMBO & ANOR. (2005) LPELR-895(SC) where the apex Court held thus: "It
is also the law that a Court should not take up a point suo motu and decide the matter before it on that
point without hearing the parties: see U.B.A. Ltd. vs. Achoru (1990) 6 NWLR (Pt. 156) 254; Okafor vs.
Attorney-General and Commissioner for Justice, Rivers State (1998) 7 NWLR (Pt.556) 38, 31 LRCN 3679
at 2713; Katto vs. Central Bank of Nigeria (1999) 69 LRCN 1119, (1999) 6 NWLR (Pt. 607) 390." The
Appellant was the party who raised the issue of service of the motion seeking transfer and even
attempted to use it to challenge the record of appeal. Even though, the process in contention was not
filed by the Appellant. How the appellant can wake up to claim a process of a third party and seek to use
it in the manner sought is very interesting but absurd. What the Court below did was to look at the
record of appeal and make a finding, a Court is entitled to look into the record before it and make
findings, see ABIODUN VS. FRN (2018) 43838(SC) which held: "The lower Court was entitled to look into
any document in its record and make use of it in order to arrive at a just decision. When a document is
in the record of the Court, it cannot be a new issue on which a judge is precluded from looking at. This
Court has in a number of decided cases held that a Court of law is entitled to look into its record and
make use of any document it considers relevant in determining issues before it. See Fumodoh vs. Aboro
(1991) 9 NWLR (Pt.214) 2010 at 229; Agbareh & Anor. Vs. Mimra & 2 Ors (2008) 2 NWLR (Pt.1011) 378
at 411 - 412; Badejo vs. Minister of Education (1996) 9 -10 SCNJ 51." Per GALINJE, J.S.C. The Court is also
empowered to note the absence of proof of service in the Court's file to conclude the process was not
served. Proof of service of a relevant process before any Court must be in the relevant file and not in a
different Court and in a matter not between the parties. See NDAYAKO & ORS. VS. DANTORO & ORS.
(2004) LPELR-1968(SC) which held: "Under normal circumstance the best evidence of proof of service of
process is by affidavit of service. It is not disputed that there was such document in the Court's file. That
document forms part of the Court's record which the Court could look at to confirm that there was
proof of service even if it was not tendered as an exhibit: See CHIEF M.O.A AGBAISI AND ORS. VS.
EBIKOREFE (1997) 4 NWLR (PT. 502) 630, 648; ADE VS. UKU (1977) 5 FCA 218 AT 228; OGBUANYINYA V.
OKUDO AND ORS. (1979) 6-9 SC 32, (1979) 3 LRN 318 AT 34; LADUNNI VS. KUKOYI (1972) ALL NLR (PT. 1)
133; SALAMI & ORS. VS. OKE (1987) 4 NWLR (PT. 63) 1 AT 9, (1987) 2 NSCC 1167 AT 1173; U.T.C.(NIG.)
LTD. V. PAMOTEI (1989) 3 SCNJ 79 AT 97, (1989) 2 NWLR (PT. 103) 244." The Court did not raise the
issue suo motu because the Appellant had referred the Court below to his affidavit challenging record
which he deposed to the fact of service. The Court below merely noted the absence of proof of service
and appellant's affidavit cannot take the place of an affidavit of service which was sworn to by the
bailiff."

JUDGEMENT SUMMARY

INTRODUCTION:

This appeal borders on Civil Procedure.

FACTS:

This is an appeal against the decision of the High Court of Akwa-Ibom State.

The High Court sat on further appeal over a decision of a Senior District Court holden at Obio Offot in
Uyo Local Government in suit No. OFDC/2E/2009 in which judgment was against the Appellant. The
claim before the District Court was for the sharing of their father's estate amongst the parties. The
Appellant was defendant at the District Court. Before the trial district Court delivered its judgment, a
different party not the Appellant filed a motion seeking the transfer of the suit to the High Court for
consolidation with another suit already pending before the High Court. While the motion was pending,
the District Court which was not served with the motion entered judgment. The Appellant dissatisfied
appealed to the Senior Magistrate Court which dismissed the appeal and the Appellant proceeded to the
High Court on further appeal.

The High Court also dismissed the appeal which led to a further appeal to the Court of Appeal.
ISSUES:

The Court determined the appeal on these issues couched as follows:

1. Whether the Court below was right to have affirmed the decision of learned senior Magistrate that
the District Court rightly assumed jurisdiction to proceed with suit NO. OFDC/2E/2009 on the 6th May,
2014 on the ground that there was no proof of service of motion on Notice for transfer duly served on
the District Court and therefore Section 37(1) of the Customary Court's Law of Akwa Ibom State Cap. 40
Laws of Akwa Ibom State was not applicable.

2. Whether the Court below was right to have held that the Appellant's constitutional right to fair
hearing including giving of evidence, either by himself or calling of witness and cross examination of
opposite party, was not breached in the circumstances of this case.

DECISION/HELD:

On the whole, the Court found no merit in the appeal and accordingly dismissed same.

YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the
judgment of the High Court of Justice, Akwa Ibom sitting in Uyo, coram: Hon. Justice Winifred I. Effiong
delivered on the 21st day of March 2016 wherein the Court below dismissed the appeal of the
Appellant. Dissatisfied with the decision, the Appellant filed a Notice of Appeal on the 11th April, 2016
setting out 2 grounds of appeal.

Facts relevant to this appeal are amenable to brevity and I shall summarize them here. The Court below
sat on further appeal over a decision of a Senior District Court holden at Obio Offot in Uyo Local
Government in suit No. OFDC/2E/2009 in which judgment was against the Appellant herein. The claim
before the District Court was for the sharing of their father’s estate amongst the parties. The Appellant
was defendant at the District Court. Before the trial district Court delivered its judgment, a different
party not the Appellant filed a motion seeking the transfer of the suit to the High Court for consolidation
with another suit already pending before the High Court. While the motion was pending, the District
Court which was not
1

served with the motion entered judgment. The Appellant dissatisfied appealed to the senior Magistrate
Court which dismissed the appeal and the Appellant proceeded to the High Court on further appeal. The
High Court also dismissed the appeal thus this appeal.

The Appellant’s brief settled by SYLVANUS A. OBOT ESQ., was filed on the 21st May, 2018 and deemed
on the 22nd January, 2020. It donated 2 issues for determination namely:

1. Whether the Court below was right to have affirmed the decision of learned senior Magistrate that
the District Court rightly assumed jurisdiction to proceed with suit NO. OFDC/2E/2009 on the 6th May,
2014 on the ground that there was no proof of service of motion on Notice for transfer duly served on
the District Court and therefore Section 37(1) of the Customary Court’s Law of Akwa Ibom State Cap.40
Laws of Akwa Ibom State was not applicable.

2. Whether the Court below was right to have held that the Appellant’s constitutional right to fair
hearing including giving of evidence, either by himself or calling of witness and cross examination of
opposite party, was not breached in the circumstances of this

case.

The Respondent’s brief settled by SAMUEL AWAKE ESSIEN ESQ., and it was filed on the 27th August,
2018 but deemed on the 22nd January, 2020. It adopted the issues distilled by the Appellant for
determination in this appeal.

Upon a careful perusal of the Notice of Appeal, the record of appeal and the briefs of counsel on both
sides, the issues donated by the appellant shall be adopted by the Court for determination in this appeal
but shall be so resolved seamlessly.
APPELLANT’S SUBMISSIONS

The Appellant submitted that the Court below erred when it held that by the decision of the learned
senior Magistrate complained of under issue 1, I hold that the senior Magistrate was right in examining
the veracity and authenticity of the deposition of the Appellant in the said affidavit challenging the
record of appeal to come to the conclusion it did. That the Court below went on thereafter to hold that,
“I cannot see how such discountenance by the Magistrate will occasion a gross miscarriage of justice on
a person who had not filed same. Based on the above, I hold that this appeal fails on ground 1 and the
issue is resolved

against the Appellant.” He went on to summarize what happened before the Magistrate court thus:

i. That the record of appeal from the District Court was transferred without the motion for transfer of
the claim to the High Court for consolidation.

ii. The Appellant’s counsel wrote the Registrar of the District Court to demand that the omitted record
be forwarded to the Magistrate Court but the Registrar refused and failed to do so.

iii. The Appellant filed an affidavit challenging record of appeal on 25th November, 2014 and attached a
copy of an earlier motion on Notice for transfer and other processes.

iv. That paragraphs 6, 7 and 8 of the affidavit deposed to the facts that the Registrar of trial District
Court was served with the process but members of the District Court ignored and proceeded.

v. That the affidavit challenging record was served on both the Registrar of the District Court and
counsel for the Respondent but none reacted or opposed same but the appeal went on to hearing.

vi. That in the judgment, the senior magistrate held that the jurisdiction of the Court was not ousted in
any way and the appeal fails.

4
That there was nothing on record to show that the process was before the District Court on 5th May,
2014 and as such there was nothing for the District Court to act on.

The Appellant contended that the Senior Magistrate raised the issue of non service suo motu in
HU/MISC.133/2014 for the first time in the judgment inspite of uncontroverted and unchallenged
evidence on the record. He alleged that parties were not given a chance to address the Court. He relied
on OLAOLU VS. FRN (2015) ALL FWLR (Pt. 794) 45; YAR’ADUA VS. YANDOMA (2015) ALL FWLR (Pt. 770)
1215 and IJEWERE VS. ERIBO (2015) ALL FWLR (Pt. 781) 1561. He submitted that parties were not invited
to address the Court. That the Court below affirmed the decision of the senior Magistrate on same
grounds that there was no service of the process of HU/MISC.133/2014 in the record of appeal from the
District Court. Appellant submitted that the proof of service on the Registrar of the District Court will be
in the file at the High Court and not the District Court and that proof of service cannot be part of the
record of appeal from the District Court. He contended that the Court erred when it held there

was no proof of service before the District Court.

The Appellant submitted that service of processes in the file before the Chief Judge was effected by the
bailiff of the High Court and including the processes served on the Registrar of the District Court and
therefore the evidence or proof of service cannot be part of the record of appeal. He contended that the
Senior Magistrate failed to call on parties to address her on the issue of service and that if it was done,
he could have applied for a CTC of the proof of service.

Furthermore, the appellant noted that Court below was of the view that since suit No.
HU/MISC.133/2014 was filed by a third party, not any of the parties in OFDC/2E/2009, then the
judgment of District Court was justified to have proceeded to determine the suit whether it was served
or not. He contended that the District Court in disregarding the motion for transfer because it was
brought by a non party to the suit was wrong. Appellant argued that the District Court should have
stayed the proceedings pending the determination by the High Court under Section 37 of the Customary
Courts Law of Akwa Ibom State which provides for a stay

once there is an application for transfer by either party. Arguing further on the phrase ‘either party’ the
appellant contended that it did not mean a party in the proceedings.

On the failure to accept the affidavit challenging record by the senior magistrate, the Appellant
submitted that the exceptions relied upon were not applicable. He urged the Court to find for the
appellant under issue one.

On issue two the Appellant submitted that the finding that parties were not denied fair hearing because
the decision of the trial district Court was based on the list items submitted to be shared amongst
parties was wrong because he was not heard in defence and it therefore breached his right to be heard
in defence. He relied on EFFANGA VS. MR. ROGERS (2003) FWLR (Pt. 157) 1058 and AYORINDE VS. CHIEF
FAYOYIN (2001) FWLR (Pt. 75) 483. Arguing further, the appellant submitted that once there is a breach
of fair hearing it is sufficient to nullify proceedings regardless of whether it occasioned a miscarriage of
justice, citing EKPENETU VS. OFEGOBI (2013) ALL FWLR (Pt. 680) 1333. Appellant referred to the features
of fair hearing as stated in

NDUKAUBA VS. KOMOLO (2005) ALL FWLR (Pt. 248) 1602 and NJIOKWUEMENI VS. OCHEI (2004) 15
NWLR (Pt. 895) 196. He argued that the nature of the case cannot justify the breach of fair hearing as
was suggested by the learned Senior Magistrate because sharing of estate is not an exception. He urge
the Court to nullify the decision for breach of fair hearing, he relied on UDO VS. CROSS RIVER STATE
NEWSPAPER CORPORATION (2002) FWLR (Pt. 104) 665; ZIIDEEH VS. RIVERS STATE CIVIL SERVICE
COMMISSION (2007) ALL FWLR (Pt. 243); O.D. DAVIDSON GROUP CONSTRUCTION (NIG) LTD & ANOR V
BEES ELECTRICAL CO. LTD. & ANOR. (2000) FWLR (Pt. 63) 154 to urge the court to allow the appeal.

REPONDENT’S SUBMISSIONS

The Respondent in response to the submission that Section 37(1) of the Customary Court’s Law of Akwa
Ibom is not applicable because there was no proof of service contended that two grounds relied upon to
dismiss the appeal by the Court below are germane and the Court cannot be faulted because Section 37
talks of an application when made by either party shall serve as stay of proceedings and the appellant
did show that either party made the

application. They submitted that parties and their counsel are bound by the record of appeal and no
Court can go outside the record of appeal, relied onGARUBA VS. OMOKHODION (2011) LRCN 100 and
ADEGBUYI VS. APC & ORS. (2015) 240 LRCN 1.

On the affidavit challenging record, the Respondent’s argued that it cannot take the place of affidavit of
service of the motion by the bailiff of the Court as the law is settled a bailiff discharges his duty by
deposing to an affidavit, citing A.G. ANAMBRA STATE VS. OKEKE (2002) 99 LRCN 1540. Furthermore, that
the affidavit of service states particulars of the process served, date, place and mode of service which
shall be proof of service, relied on IDISI VS. ECODRIL NIG. LTD. & ORS. (2016) 260 LRCN 49. That failure
to serve a process is fatal and goes to the root of the case and can render the process incompetent.
Respondents submitted that the Court cannot go into a private investigation of documents, citing
IKPEAZU VS. OTTI & ORS. (2016) 254 LRCN 1.

Respondents submitted that the decision of the learned Magistrate cannot be faulted, more so, the
motion for transfer in HU/MISC.133/2014 was not
9

filed by the Appellant but one Mrs Margaret Ekpo Etim. Furthermore, he submitted that the definition of
a party in Section 37 of the Customary Court Law cannot accommodate the contention of the appellant
to include a stranger.

On issue two, the Respondents submitted that the Court below held that parties were given fair hearing
considering the nature of the case. On fair hearing, they contended that fair hearing as enshrined in the
constitution is for all parties but when a party fails to take advantage of an opportunity, then he cannot
be heard to complain, relied on EKE VS. OGBONDA (2007) 144 LRCN 391. They referred to the claim
before the District Court which was assistance in sharing of their father’s estate which the Appellant
made effort to truncate twice with applications for transfers which were all dismissed. The Appellant
participated in the submission of list of properties to be shared, several visit to different pieces of land
and when matter was adjourned for decision, he refused to attend Court on judgment date.
Respondents argued that the appellant cannot whip up sentiments of fair hearing when he participated
and knew of the judgment date

10

but choose to stay away, they relied onEKUNOLA VS. CBN & ANOR (2013) 225 LRCN (Pt.1) 199. They
submitted that fair hearing was not breached and the appeal should be dismissed.

RESOLUTION

The Appellant under the first issue questions the competence of the District Court to proceed to
judgment when there was a pending application for transfer which he alleged was served on the Court.
The Court below found otherwise because there was no proof of service before the Court and dismissed
the appeal. The ground upon which the appellant maintained his stands was because there was no
counter affidavit to Appellant’s affidavit. As posited by the Court below, it is not every time that an
affidavit is not countered that it must be relied upon. It is trite that there are exceptions to the rule that
when facts in an affidavit are not countered they stand admitted, true and must be relied upon, see
EXCHANGE ASSURANCE (NIG) LTD. VS. ASWANI TEXTILE INDUSTRIES LTD. (1992) 3 NWLR (Pt. 227) 1
where it restated thus:

“If an affidavit is self contradictory or if the facts contained therein are presumed to be true and when
taken together are not

11

sufficient to sustain the prayers of the Applicant, it would be needless for a Respondent to file a counter
affidavit.”

Some the exceptions to the rule are as follows:

i. If the affidavit is self contradicting

ii. If the facts contained therein are not worth countering by the filing of a counter affidavit in opposition

iii. Where the depositions in an affidavit is in conflict with documents or documentary evidence in the
case, the Court will reject the deposition even where there is no counter affidavit.

SeeC.C. ONYEMELUKWUE VS. WEST AFRICAN CHEMICAL COMPANY LIMITED (1995) 4 NWLR (Pt. 387) 24
at 55.

The Appellant therefore cannot go to town with the fact that his affidavit was not countered and
therefore the facts deposed therein are sacrosanct. As found by the Court below, the Senior Magistrate
was right in examining the affidavit along the record of the trial District Court to arrive at a decision. The
issue basically was one of service of a process in pending proceedings. It is settled that Court processes
are served by officers of Court called Bailiffs and they as a matter of practice swear to affidavits of
service

12
setting out the facts, place, mode of service, date and the particular process served, see A.G. ANAMBRA
STATE VS. OKEKE (2002) LPELR-604(SC). The document allegedly served was a motion seeking transfer of
the suit before the District Court to the High Court for consolidation with another pending suit before
the chief Judge. The findings by the Court below was that the motion was filed by a non party and was
not served on the District Court. The record of proceedings did not also indicate that the District Court
was aware of the said motion. The argument of the Appellant is that the proof of service was before the
High Court. It is absurd for the Appellant to expect the record of service before the High Court to be part
of the record before the District Court without taking the proper step to bring such a process into the
record of the District Court. How did the Appellant expect that the District Court would be bound by an
application not made before it and not brought to its attention? A more vitiating aspect of it was that
the said process was filed a non party. A Court cannot go outside its record to determine any issue, that
would be perverse and perverse

13

decisions are usually set aside, see UGBOJI VS. STATE (2017) LPELR-43427 (SC) where the apex court
described a perverse decision as follows:

"The decision is perverse, if among other things, the Court took into consideration matters extraneous
to the facts in issue, or matters which it ought not to have taken into consideration. See ATOLAGBE vs.
SHORUN (1985) NWLR (pt.2) 360. When a Court goes out of the proceedings to import and rely on
extraneous matters to predicate its decision on, the natural consequence of this cloister justice is a
miscarriage of justice. A decision that occasions a miscarriage of justice is also perverse. See MISR vs.
IBRAHIM (1975) 5 SC 55; IROLO vs. UKA (2002) 14 NWLR (pt.786) 195 (sc); FBN vs. OZOKWERE (2013)
LPELR - 21897 (SC)." Per EKO, J.S.C

The appellant sought that the District Court should hand down a perverse decision by looking beyond
what was before it and to take a decision with regards to an application also not before it. The motion
seeking for transfer was not before the District Court and it couldn’t have done otherwise than to
proceed to hand down its decision as it did. I also agree with the Court

14
below that the District court was not in error.

More fundamentally, the application for transfer was not made by a party in the proceedings before the
District Court that is in HU/MISC.133/2014, it was made by Mrs. Margaret Ekpo who was not a party in
the matter before the District Court, this bring up Section 37 of the Customary Law of Akwa Ibom State
into play. It provides thus:

“Any application for an Order of Transfer made by either party shall operate as a stay of proceedings
before the District Court”.

The contention of the parties here is the phrase “either party” which the Appellant says includes other
persons who are not before the Court as parties. That interpretation is outlined and cannot be stretched
to include strangers to the proceedings. Why would a stranger or an interloper be allowed to interfere
with proceedings before the Court? To allow such interference is to open the doors of justice to
absurdity in judicial proceedings. Either party means one of the parties before the Court and not any
other person not listed in the matter before the Court. Obviously, the application for transfer even if
before the

15

District Court as long as it was not made by either party, the Court has no business countenancing with
such an application and therefore, it was in order to proceed to hand down its decision. There was
nothing to inform its staying proceedings. The operative words in “any application for transfer” is
circumscribed by either party before the Court as the only ones qualified to make the application that
the Court can recognize and stay proceedings. It is certainly not for a stranger to the proceedings.

Therefore, the application upon which the Appellant seeks to stand on is not one contemplated by the
statutory provision and cannot enure him any benefit. More so, it was not shown to have been served
on the Registrar of the Court. The argument of the Appellant is preposterous and holds no water.

There is the issue raised by the Appellant alleging that the Court below raised the issue of non service
suo motu. I agree that a Court of law is not permitted to raise any issue suo motu and proceed to
determine the issue without giving parties an opportunity to address the Court before it is determined,
see COOKEY VS. FOMBO & ANOR. (2005)
16

LPELR-895(SC) where the apex Court held thus:

"It is also the law that a Court should not take up a point suo motu and decide the matter before it on
that point without hearing the parties: see U.B.A. Ltd. vs. Achoru (1990) 6 NWLR (Pt. 156) 254; Okafor
vs. Attorney-General and Commissioner for Justice, Rivers State (1998) 7 NWLR (Pt.556) 38, 31 LRCN
3679 at 2713; Katto vs. Central Bank of Nigeria (1999) 69 LRCN 1119, (1999) 6 NWLR (Pt. 607) 390."

The Appellant was the party who raised the issue of service of the motion seeking transfer and even
attempted to use it to challenge the record of appeal. Even though, the process in contention was not
filed by the Appellant. How the appellant can wake up to claim a process of a third party and seek to use
it in the manner sought is very interesting but absurd.

What the Court below did was to look at the record of appeal and make a finding, a Court is entitled to
look into the record before it and make findings, see ABIODUN VS. FRN (2018) 43838(SC) which held:

"The lower Court was entitled to look into any document in its record and make use of it in order to
arrive at a just decision. When a

17

document is in the record of the Court, it cannot be a new issue on which a judge is precluded from
looking at. This Court has in a number of decided cases held that a Court of law is entitled to look into its
record and make use of any document it considers relevant in determining issues before it. See
Fumodoh vs. Aboro (1991) 9 NWLR (Pt.214) 2010 at 229; Agbareh & Anor. Vs. Mimra & 2 Ors (2008) 2
NWLR (Pt.1011) 378 at 411 - 412; Badejo vs. Minister of Education (1996) 9 -10 SCNJ 51." Per GALINJE,
J.S.C.

The Court is also empowered to note the absence of proof of service in the Court’s file to conclude the
process was not served. Proof of service of a relevant process before any Court must be in the relevant
file and not in a different Court and in a matter not between the parties. See NDAYAKO & ORS. VS.
DANTORO & ORS. (2004) LPELR-1968(SC) which held:
"Under normal circumstance the best evidence of proof of service of process is by affidavit of service. It
is not disputed that there was such document in the Court's file. That document forms part of the
Court's record which the Court could look at to confirm that there was proof

18

of service even if it was not tendered as an exhibit: See CHIEF M.O.A AGBAISI AND ORS. VS. EBIKOREFE
(1997) 4 NWLR (PT. 502) 630, 648; ADE VS. UKU (1977) 5 FCA 218 AT 228; OGBUANYINYA V. OKUDO
AND ORS. (1979) 6-9 SC 32, (1979) 3 LRN 318 AT 34; LADUNNI VS. KUKOYI (1972) ALL NLR (PT. 1) 133;
SALAMI & ORS. VS. OKE (1987) 4 NWLR (PT. 63) 1 AT 9, (1987) 2 NSCC 1167 AT 1173; U.T.C.(NIG.) LTD. V.
PAMOTEI (1989) 3 SCNJ 79 AT 97, (1989) 2 NWLR (PT. 103) 244."

The Court did not raise the issue suo motu because the Appellant had referred the Court below to his
affidavit challenging record which he deposed to the fact of service. The Court below merely noted the
absence of proof of service and appellant’s affidavit cannot take the place of an affidavit of service
which was sworn to by the bailiff.

The second issue formulated by the Appellant alleges breach of right to fair hearing which was over
ruled by the Court below. From the record of appeal, there was no time the matter was heard behind
the Appellant except the day judgment was delivered and which was known to him but he declined to
be in Court. There was no time the Respondents were given a

19

hearing behind the Appellant. Fair hearing is nothing more than an opportunity to be heard, once that
opportunity is given; there cannot be a breach of fair hearing. Whether a party who had an opportunity
of being heard but did not utilize it can bring an action for breach of fair hearing:
"The law is quite settled that a complaint of lack of fair hearing will only avail a party where he is able to
show that he was denied the opportunity of presenting his case. Whether or not he was denied fair
hearing depends on the facts and circumstances of the case. It has been held in several decisions of this
Court that the crucial determinant of whether or not a party has been denied fair hearing is whether the
parties were afforded an equal opportunity to present their case before judgment is delivered. The
Court will take an objective view of the entire proceedings. The true test of fair hearing is the impression
of a reasonable man present at the trial and whether from his observation, justice has been done in the
case. See: Mohammed vs. Kano Native Authority (1968) 1 ALL NLR 424; Akaninwo vs. Nsirim (2008) 1 SC
(Pt. III) 151; Otapo vs. Sunmonu (1987) 2 NWLR

20

(Pt. 58) 587 @ 605. See AYOADE VS. STATE (2020) LPELR-49379(SC).

The effect of a breach of the right to fair hearing is that the entire proceedings and any judgment or
order made therein become a nullity. See:AUDU VS. F.R.N (2013) LPELR - 19897 (SC) 13; AKINFE VS. THE
STATE (1988) 3 NWLR (PT. 85) 729; BAMGBOYE VS. UNIVERSITY OF ILORIN (1999) 10 NWLR (PT. 622)
290. Conversely, it has been held severally, that where the Court creates an enabling environment for
the parties to ventilate their grievances, either in the prosecution or defence of their case, the failure of
a party to take advantage of such conducive environment cannot be the basis for a complaint of lack of
fair hearing. See MFA & ANOR. VS. INONGHA (2014) 1-2 SC (PT. 1) 43; INAKOJU VS. ADELEKE (2007)
LPELR - 1510 (SC).

It is clear on the record that the trial District Court the appellant participated in the visits to the various
lands to be shared, he was in Court all through and no party called any witness or testified because the
nature of the case did not warrant such procedure (see pages 208-210 of the record of Appeal). All that
was before the District Court was a list of

21
properties to be shared, both participated in visits to locus in quo, appellant did not challenge the list
and did not raise any issue on the visits made to the various pieces of land. Appellant did not make any
application that was not considered by the day judgment was handed down, he was aware and
acquiesced all through. He cannot be heard to complain at this stage. The Appellant is merely trying to
use the term breach of fair hearing to whip up sentiments. Parties were treated equally and I also do not
see where there was a breach of fair hearing as would nullify the proceedings. I agree with the Court
below in finding against the Appellant. This appeal lacks merit and is hereby dismissed.

The judgment of the Court below delivered on the 21st May, 2018 is hereby affirmed.

Cost of N100,000.00 only is awarded against the Appellant, in favour of the Respondents.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the opportunity of reading in draft the judgment
delivered by my learned brother Yargata B. Nirnpar, JCA.

I totally agree with the reasoning and conclusion.

I also dismiss the appeal. I abide by the order as to costs.

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MUHAMMED LAWAL SHUAIBU, J.C.A.: My learned brother, B. Nimpar, JCA afforded me with the
opportunity of previewing the judgment just delivered.

I agree the reasoning and conclusion that the appeal is bereft any substance. I joined my learned brother
in dismissing the appeal for lacking in merit. I abide by the consequential orders.
23

Appearances:

SYLVANUS A. OBOT ESQ.For Appellant(s)

SAMUEL AWAKEESSIEN ESQ.For Respondent(s)