“However, what the appellants seem to be complaining about here is that the lower court has improperly pronounced on issue 1 (one) for determination prior to ordering a rehearing of the appeal before the appellate High Court.

In other words, that having made up its mind on the matter, it should have proceeded straight on to order a .. rehearing, without more; and should not have allowed the appeal in part prior to making an order of rehearing of the matter.

The respondents have conceded the point. 1 am satisfied that the lower court, with respect, has partly allowed the appeal when it has resolved issue 1 (one) before it against the appellants in favour of the respondents. And that by so having pronounced on issue 1 (one) it has unarguably interfered with, albeit dealt with a vital question which otherwise is properly for resolution at the rehearing of the appeal and thus has erred in pre-empting that issue tantamounting to not having provided a level playing ground for the parties at the hearing before the appellate High Court.

I must however in the interest of providing a level playing ground for both parties for and avoidance of any doubt hereby set aside the resolution of issue 1 (one) against the appellants in favour of the respondents as pronounced by the lower court as having been made in error.

And 1 so order as it is crucially important in order to clear the way for a rehearing of the appeal as has been ordered by the lower court (as affirmed by this court) to be complied with by the appellate High Court.

For the avoidance of doubt, 1 hereby set aside the lower court’s resolution of issue 1 (one) having been made in error. The entire case is hereby remitted to the Customary Court of Appeal which has since replaced the appellate High Court for a rehearing. And 1 so order.”

Per MOHAMMED JSC: [Pp. 615 – 616, paras. D – C] The appeal is against the judgment of the Court of Appeal, Port-Harcourt Division delivered on 4 July 2005. In that judgment, even though the court allowed the appeal from the decision of the trial High Court of Rivers State which heard the case on appeal, upon holding that there had been a breach of the right of fair hearing and therefore sent the case back to the High Court for rehearing the appeal by another Judge, the Court of Appeal again proceeded in its judgment and determined same  appeals on the merit.

Obviously, by proceeding to resolve the issue on the merit of the case between the parties, the Court of Appeal had completely lost the sight of the fact that the same issue on the merit of the case contained in the issue of the omnibus ground of appeal was still pending before the High Court of Justice for consideration and resolution by another Judge of that court following the Court of Appeal’s order of rehearing. This order was made by the court below in its judgment at pages 188 – 189 of the record where the court said in the lead judgment as follows:

“Parties have agreed that there is a clear breach of fair hearing since the court below failed to determine the issue touching on the omnibus ground of appeal. And since there is a clear breach of fair hearing, the mandatory order that is warranted is one ordering a fresh trial of the appeal by another Judge of the court below. And order accordingly.”

The law on the effect of the act of breach of the rule of natural justice or denial of fair hearing by any court, is as correctly stated above by the court below having regard to a number of authorities including the cases of Adigu v. Attorney-General, Oyo State (1987) 1 NWLR (Pt. 53) 678; Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587 and Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23.