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  • 2003-10-20
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Yakaje vs. Na Haire

MALLAM GARBA YAKAJE

V

ALHAJI GAMBO NA HAIRE

HON. MAGISTRATE SULEIMAN NUHU ZARIA

THE ATTORNEY-GENERAL AND COMMISSIONER

OF JUSTICE, KADUNA STATE

COURT OF APPEAL

( KADUNA DIVISION )

ISA AYO SALAMI, JCA (Presided and Read the Lead Judgment)

MAHMUD MOHAMMED, JCA

VICTOR AIMEPOMO OYELEYE OMAGE, JCA

CA/K/26/97

TUESDAY, 7TH MAY, 2002

APPEAL -Issue for determination - Issue of breach or threatened breach of provision of chapter 4 of the constitution - Where not arising from any ground of appeal - Attitude of appellate court thereto

APPEAL -Issues for determination - Proliferation of issues from a single ground of appeal - Attitude of appellate court thereto

COURT - Ex-parte application for leave of court - Whether court can grant substantive relief while considering

COURT - Issue for determination - Issue of breach or threatened breach of provision of chapter 4 of the constitution - Where not arising from any ground of appeal - Attitude of appellate court thereto

COURT - Issues for determination - Proliferation of issues from a single ground of appeal - Attitude of appellate court thereto

COURT - Rules of Court - Failure of court to observe - Effect thereof


FAIR HEARING - Proceedings which deny right of party to be heard Effect of

PRACTICE AND PROCEDURE - Ex-parte application for leave of court - Whether court can grant substantive relief while considering

PRACTICE AND PROCEDURE  Judicial Review - Application for procedure for granting

PRACTICE AND PROCEDURE - Proceedings which deny right of party to be heard - Effect of

PRACTICE AND PROCEDURE - Rules of Court - Failure of court to observe - Effect thereof

Issues:

1.             Whether or not the lower court was justified in making an absolute orders upon an ex parte application without hearing the appellant?

2.             Was the appellant’s constitutional right to fair hearing not breached?

Facts:

The 1st respondent herein as applicant at the court below by  ex parte application sought for an order of certiorari against the proceedings and decision of the 2nd respondent with a view to quashing and nullifying same.

The respondent’s ex parte application was supported by facts verification affidavit to which only grounds on which the application was sought was attached. Notably, the decision and the proceedings sought to be quashed was not attached to the motion papers. The prayer for leave to apply for an order of certiorari as well as order quashing the decision of the Chief Magistrate were argued, considered and granted by the trial Judge, Makeri. J. without 1st respondent filing a motion on notice whereby the 2nd and 3rd respondents as well as the appellant would have been placed on notice not to talk of offering him opportunity to proffer a defence thereto.

Dissatisfied, the appellant brought this appeal against the trial court’s decision.