AKINNIRAN v ADE & ORS

AKINNIRAN v ADE & ORS


IN THE COURT OF APPEAL
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN

ON FRIDAY, 10TH FEBRUARY, 2017


Appeal No: CA/I/43/2011
CITATION:

Before Their Lordships:

CHINWE EUGENIA IYIZOBA

HARUNA SIMON TSAMMANI

NONYEREM OKORONKWO


BETWEEN

MR. ISAAC AKINNIRAN

(APPELLANT)

AND

MRS FUNLAYO ADE (NEE JAGO)
MR. JAMES AKIN
MR. CHRISTOPHER IDOWU JAGO
(FOR THEMSELVES AND ON BEHALF OF MRS VICTORIA JAGO BRANCH OF LATE PA SAMUEL OYEWOLE JAGO FAMILY)

(RESPONDENTS)


PRONOUNCEMENTS



A. APPEAL
1. Issues for Determination – Whether a Respondent who files neither a cross appeal nor respondent’s notice can distill issues for determination outside the grounds of appeal filed by the Appellant

Whether a respondent who files neither a cross appeal nor respondent’s notice can raise issues for determination not related to the grounds of appeal filed

“The Appellant is obviously correct. None of the above three grounds of appeal relate to viability or otherwise of the Statement of Defence of the Appellant before the lower Court. The Respondents did not file Respondents’ Notice or cross appeal. They cannot therefore distil an issue outside the Appellant’s grounds of appeal. See ALL PROGRESSIVE GRAND ALLIANCE & ANOR V. UMEH & ORS (2011) 8 NWLR 427 where the SC observed: “The law on the formulation of issues by a Respondent is well settled. It is to the effect that any issue formulated for determination of an appeal by the Respondent must relate to the grounds of appeal filed by the Appellant. However for the Respondent in an appeal to validly raise any issue not related to or arising from the grounds of appeal filed by the Appellant, such Respondent must file a cross-appeal or file a Respondent’s Notice. See Momodu v. Momoh (1991) 1 NWLR (Pt. 169)608 and Ossai v Wakwah (2006) 4 NWLR (Pt. 969) 208. See also the case cited by the Appellant in his brief: NWAGWU V. FADIPE (2012) 13 NWLR (PT 1318) 547 AT PAGE 561 PARAS F – G where the Court of Appeal held thus: “It is necessary to observe at this stage that in formulating issue for determination, a respondent who has not cross appealed or filed a respondent’s notice must confine himself to the grounds of appeal filed by the Appellant. See Ossai V. Wakwah (2006) 4 NWLR (pt. 969) 208 at 224 B – C; Okoye V. N.C. & F. Co. Ltd. (1991) 6 NWLR (pt. 199) 501. The Respondent’s issue 2 does not arise from the notice and grounds of appeal filed by the Appellant. It is therefore incompetent and accordingly discountenanced. The law on the issue is so trite that nothing more needs to be said. Respondents’ issue 1 being incompetent is hereby struck out.” Per IYIZOBA, JCA read in context

B. CONSTITUTIONAL LAW
2. Right to Fair Hearing – Elements of the principle of fair hearing

Attributes of the principle of fair hearing

“The right to fair hearing as enshrined in Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), encapsulates so many elements or attributes. Thus, a hearing would be said to be fair, if the person to be affected by the decision of the Court is granted: ?(a) An opportunity to be present all through the proceedings in order to hear all the evidence against him;
(b) The opportunity to cross-examine or otherwise confront or contradict all the witnesses that testify against him;

(c) Opportunity to have read before him all the documents tendered in evidence at the hearing; (d) To have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, pre-judicial to him; (e) Opportunity to know the case he has to meet at the hearing and to have adequate opportunity to prepare his defence; and (f) Opportunity to give evidence himself, call witnesses, if he likes, and make oral submissions either personally or through a counsel of his choice.” Per TSAMMANI, JCA read in context

C. PRACTICE AND PROCEDURE
3. Hearing Notice – Nature of the service of hearing notice

Fundamental nature of the service of hearing notice on parties in the adjudication process and effect of failure to serve hearing notice where required

“It is trite that the service of hearing notice on a party is not just procedural but a substantive issue which goes to the jurisdiction of the Court to hear the suit. Where the Court failed to sit on a date originally fixed for adjudication or when that schedule was aborted by unforeseen circumstances, fresh hearing notices must be ordered and served on the parties to intimate them of the new date in order to uphold the principle of fair hearing. This is why the Courts have adopted the practice whenever a matter is fixed for hearing and one of the parties is absent in Court; of searching its records to see whether hearing notice was duly issued; and recording the outcome of the search. If there was no service of hearing notice, the Court is duty bound to adjourn the case and order that hearing notice be issued on the defaulting party. I repeat the quotation from the appellant’s brief: MANKANU V. SALMAN (2005) 4 NWLR (PT. 915) @ 292 – 293 G – C where the Court of Appeal held thus: “After going through the submission of both counsel and the record of proceedings I hold that the lower Court, whatever happened, ought to have ordered that hearing notice (be served) on the Appellants against the proceedings of 19/9/99. I agree that both parties were present in Court when the learned trial judge fixed a date for defence. However, that date fell on certain crisis in the state which necessitated the Court not to sit on that date. When the lower Court ultimately fixed another date for defence, the Appellants should have been informed of the new date …. The lower Court must endeavor to order for a fresh hearing notice to be re-issued on them.”
At page 301, paragraphs a- c, the Court went further to say “…But the lower Court should

have caused hearing notices to be served on the Defendants … In doing so, the Court would have exercised the requisite caution and satisfied itself that indeed, the Defendants had due notice. This may appear to be an-over indulgence of the Defendants but I think it is a desirable price to pay in the quest to attain maximum justice.” Also in OGUNDOYIN V. ADEYEMI (SUPRA) cited copiously by both sides, the SC held that where a party fails to appear in Court, the Court owes it as a duty to examine its records to determine whether the party was served with hearing notice. It is clear therefore that all the submissions of learned counsel for the Respondents about the lackadaisical attitude of the Appellant or his appearing only twice and choosing when or whether to appear at all go to no issue. What is important is this: “Was hearing notice served on him on the date hearing finally took place in his absence?” The submissions of learned counsel for the Respondents will be meaningful only if there was evidence that the party was issued hearing notice and he deliberately absented himself from Court. There is no evidence from the Records that hearing notice was issued on the Appellant. The learned trial Judge failed to comply with this time tested and trite procedure. The failure of the lower Court to order issuance and service of hearing notice on the Appellant or his counsel for the hearing of 21/12/07 and 11/01/08 was in clear breach of his right to fair hearing as guaranteed by Section 36 (1) (6) of 1999 Constitution of the Federal Republic of Nigeria as amended. In the case of BADA V. ATUNBI (2011) LPELR-9256(CA) Mukhtar JCA (as he then was) summarized it all as follows:

“The duty on the Court to notify litigants of hearing date is a constitutional one by virtue of Section 36 of the 1999 Constitution which guarantees every person the right to fair hearing including the right to be notified of the hearing date…This Court in S.P.D.C. Nig Ltd v. Niger Optical Services Co (supra) at p. 435 paras G-H per Ikongbe JCA observed thus: (Citation: (2004) 7 NWLR ‘The duty of getting the hearing of a case back on track after disruption is on the Court, not on the litigant or his lawyer. The Court is to notify the parties of the new date fixed after the disruption of hearing. The defendant’s duty to appear in Court on the date notified to it to defend the plaintiff’s action does not become due until the Court performs its own, that is informs him of the new date. Therefore where the Court is in default of this primary duty, it cannot justifiably hold the defendant to its own duty which is only secondary… A Court must be willing to go an extra mile in satisfying itself that a party to a case has notice of the hearing date. In doing so, the Court would have exercised the requisite caution and satisfied itself that indeed, the parties had due notice. Although this may appear to be an over-indulgence of the parties, but it is a price desirable to pay in the quest to attain maximum justice. Thus, where parties are repeatedly absent in Court, the only procedure to take is to issue a hearing notice.’
The Appellant’s motion for setting aside the judgment entered without placing them on notice of the hearing proceedings ought to have been granted in the circumstances because the proceedings and the judgment were null and void.” Any hearing conducted
in the absence of proof of service of hearing notice on any of the parties is a denial of fair hearing and cannot be allowed to stand. In OGUNDOYIN V. ADEYEMI (SUPRA) @ 421A – D as quoted by the Respondent in his brief, the Supreme Court held: “Fair hearing is also a rule of natural justice. Thus, in Donatus Ndu V. The State (1990) 7 NWLR (Pt. 164) 550 at 578 Nnaemeka – Agu, J.S.C. stated the law succinctly thus: ‘The very essence of fair hearing under Section 33 of the Constitution of 1979 is a hearing which is fair to both parties to the suit, be they plaintiffs or defendants or prosecution and defence. The section does not contemplate a standard of justice which is biased in favour of one party and to the prejudice of the other. Rather it imposes an ambidextrous standard of justice in which the Court must be fair to both sides to the conflict.” Still quoting from the above case at PAGES 422 – 423 H – C, the Supreme Court observed: “The hearing notice issued on 9/9/93 was meant to re-fix the appeal for and to supersede the 13/9/93 date. There was no proceeding in the appeal on 13/9/93 as it
did not come up on that day. The learned Justice of the Court below owed it as their duty to examine the Court record as to whether the Appellants were served with hearing notice but deliberately absented themselves, including their counsel from Court, and did not take the opportunity of being heard. In those circumstances, can it be said that the Appellants were given a fair hearing in the instant case here on appeal? I take the firm view that the Appellants were not given a fair hearing in the instant case here on appeal. In Alhaji Chief Yekini Otapo V. Chief R. O. Sunmonu & Ors (Supra) Obeseki, J.S.C. in answering a similar question said “… A hearing can only be fair when all the parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as fair hearing.” When the Appellants were not heard before their appeal was dismissed they were not by any stretch of imagination given a hearing let alone fair hearing by the Court below. It is indeed trite law that a party who will be affected by the result of a judicial enquiry must be given opportunity of being heard, otherwise the action taken following the inquiry will be unconstitutional and illegal…”
The above quotation is very apt. The Appellant was not given the opportunity to be heard. The proceedings of 21/12/07 and the judgment of 11/01/08 are unconstitutional and illegal. See also the following cases: EMUAKPOR V UKAUBE (175) 12 SC 41; ADIGUN V. ATTORNEY GENERAL OF OYO STATE (1987) 1 NWLR (PT. 53) 678 @ 709; OYEYEMI V. COMMISSIONER FOR LOCAL GOVERNMENT KWARA STATE (1992) 2 NWLR (PT. 226) 661; MOHAMMED & ANOR V. OLAWUNMI (1990) 2 NWLR (PT. 133) 458 AT 485 B – C; URHATA V. MENTA LTD (1968) NWLR 55 AT 58; MADUBUIKE V. MADUBUIKE (2001) 1 NWLR (PT. 695) 472; OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599; OTAKPO V. SUNMONU (1987) 2 NWLR (PT. 58) 587.
I agree with the submissions of learned counsel for the Appellant in his Reply brief that all the authorities referred to by the Respondent were instances where the complaining party was given the opportunity to present his case by being served the relevant hearing notice and he failed to take advantage of it. Such a party cannot complain of lack of fair hearing. In the instant appeal, hearing notice was not served on the Appellant. He was denied fair hearing.” Per IYIZOBA, JCA read in context

4. Hearing Notice – Nature and importance of service of hearing notice on parties to an adjudication process

Fundamental nature of the service of hearing notice on parties in the adjudication process and effect of failure to serve hearing notice where required

“…The concept of fair hearing, which is an attribute of natural justice includes the right to be heard. See Yakubu v. Gov; Kogi State (1995) 8 NWLR (pt.414) p.386 and S & D Construction Co. Ltd v. Chief Bayo Ayoku & Anor (2011) LPELR – 2965 (SC). Accordingly, failure of the Court to issue hearing notice to a party where such service is required is a fundamental error which may have the effect of nullifying the entire proceedings of the Court, because in such a situation the Court would have no jurisdiction to proceed with the case in the absence of such hearing notice. A Court must therefore ensure that all the parties to the dispute have been duly served hearing notice before proceedings are commenced or continued. See Mark v. Eke (2004) 5 NWLR (pt.865) p.54 and Nyamati Enterprises Ltd v. N.D.I.C. (2006) All FWLR (pt.293) p.356. See also Udukauba v. Kolomo (2005) 4 NWLR (pt.91S) p.411 at 430 – 431.” Per TSAMMANI, JCA read in context


LEAD JUDGMENT DELIVERED BY IYIZOBA, JCA


This appeal is against the judgment of Ogun State High Court sitting at Ota in Suit No. HCT/343/2004 delivered by H. O. Solanke J on the 11th day of January 2008. The Respondents who were the Plaintiffs in the lower Court claimed as follows:

i. A sum of Five Million Naira (N5M) being special and general damages for the trespass committed on the plaintiff family land situate at 39 (formally 41) Alagbole Road, Alagbole Bus Stop, Alagbole, Ogun State.

ii. An order of perpetual injunction restraining the defendant either by himself, servant, heirs, assigns and or any person claiming from and or through him from further entering into and or further committing any other or further acts of trespass on the said land situate at 39 (formally 41) Alagbole Road, Alagbole Bus Stop, Ogun State.

The case of the Respondents/Plaintiffs was that the land in dispute formed part of a large tract of land originally belonging to their father, Late pa Samuel Oyewole Jago through purchase. They claimed that the land was partitioned by their father amongst his children in accordance with the native laws and customs in Idi-Igi basis of inheritance. They further claimed that the land in dispute fell within the portion partitioned to their mother, Mrs Victoria Adunni Jago. The Appellant who was the defendant claimed he bought the land in dispute for valuable consideration from one Kehinde Jago a member of the Respondents’ family; that after the purchase, he was put into physical possession of the land and immediately commenced construction thereon. The Appellant claimed the Respondents then approached him for more money which demands he turned down. Following his refusal to pay more money, the Appellant claimed the Respondents instituted this action claiming as set out above. The lower Court after taking evidence from the Respondents’ five witnesses delivered judgment granting their claims. The Appellant who claimed non service of hearing notices when the Respondents’ second to fifth witnesses testified appealed against the judgment. His original notice of appeal was subsequently amended by the order of the Court. Out of the three grounds of appeal in the amended Notice of appeal dated 30/09/14 and filed same day but deemed properly filed and served on 13/10/14, the Appellant in his brief of argument settled by O.O. Ojutalayo Esq., formulated the following two issues for determination:

i. Whether the failure of the lower Court to convey the notice of the proceedings of the 21st day of December, 2007 to the Appellant or his counsel did not amount to an infringement of the Appellant’s right to fair hearing which makes the proceedings of the said date and the judgment predicated on it a nullity – Ground 1.

ii. Whether the Respondents proffered sufficient credible and convincing evidence at the lower Court by which it could be said that they had discharged the onus of proof imposed on them by law and thus entitled to the reliefs granted in their favour – Grounds 2 & 3.

The Respondents in their brief settled by Alhaji Habeeb Usman Lanase distilled three issues for determination viz:

1. Whether there was a valid Statement of Defence before the lower Court.
2. Whether the Appellant was denied fair hearing at the lower Court.
3. Whether the learned trial judge was right in granting the reliefs of the Plaintiffs/Respondents.

The Appellant in his Reply brief settled by A.A. Isiolaotan Esq., of Messrs Sola Ojutalayo & Co. challenged the competence of the Respondents’ issue 1. I think it is appropriate to deal with that point first. The contention of the Appellant is that Respondents’ issue 1 is grossly incompetent and liable to be struck out because it did not arise from any of the grounds of appeal filed by the Appellant and the Respondents did not file any Notice to contend or cross appeal. The three grounds of appeal in the amended Notice of appeal without their particulars are as follows:

1. The trial judge erred in law when he proceeded to conduct substantial part of the proceedings by taking the evidence of W2-PW5 on the 21st day of December 2007 without an order to issue and serve hearing Notice of the aforesaid date on either the Appellant or his counsel to notify them of the new date for further hearing after the original fixture had been aborted thereby violating the Appellant’s constitutionally guaranteed right to fair hearing.

2. The learned trial Judge erred in law when he awarded the sum of N2,000,000. 00 (Two Million Naira Only) as general damages against the Defendant and in favour of the Claimant when such award is not borne out by the evidence on record.

3. The trial Judge erred in law by giving judgment in favour of the Respondents on the claim for trespass predicated upon partitioning when that decision is not borne out by the evidence canvassed by them (The Respondents) at trial.

The Appellant is obviously correct. None of the above three grounds of appeal relate to viability or otherwise of the Statement of Defence of the Appellant before the lower Court. The Respondents did not file Respondents’ Notice or cross appeal. They cannot therefore distil an issue outside the Appellant’s grounds of appeal. See ALL PROGRESSIVE GRAND ALLIANCE & ANOR V. UMEH & ORS (20 ) 8 NWLR 427 where the SC observed:

“The law on the formulation of issues by a Respondent is well settled. It is to the effect that any issue formulated for determination of an appeal by the Respondent must relate to the grounds of appeal filed by the Appellant. However for the Respondent in an appeal to validly raise any issue not related to or arising from the grounds of appeal filed by the Appellant, such Respondent must file a cross-appeal or file a Respondent’s Notice. See Momodu v. Momoh (1991) 1 NWLR (Pt. 169)608 and Ossai v Wakwah (2006) 4 NWLR (Pt. 969) 208.

See also the case cited by the Appellant in his brief:

NWAGWU V. FADIPE (2012) 13 NWLR (PT 1318) 547 AT PAGE 561 PARAS F – G where the Court of Appeal held thus:

“It is necessary to observe at this stage that in formulating issue for determination, a respondent who has not cross appealed or filed a respondent’s notice must confine himself to the grounds of appeal filed by the Appellant. See
Ossai V. Wakwah (2006) 4 NWLR (pt. 969) 208 at 224 B – C; Okoye V. N.C. & F. Co. Ltd. (1991) 6 NWLR (pt.199) 501. The Respondent’s issue 2 does not arise from the notice and grounds of appeal filed by the Appellant. It is therefore incompetent and accordingly discountenanced.”

The law on the issue is so trite that nothing more needs to be said. Respondents’ issue 1 being incompetent is hereby struck out.

The remaining two issues as formulated by the Appellant and the Respondents are the same, although couched differently. I shall adopt the Appellant’s issues and begin with his issue

ISSUE ONE:

Whether the failure of the lower Court to convey the notice of the proceedings of the 21st day of December, 2007 to the Appellant or his counsel did not amount to an infringement of the Appellant’s right to fair hearing which makes the proceedings of the said date and the judgment predicated on it a nullity.

APPELLANT’S ARGUMENTS:

On this issue, it was submitted by learned counsel that it is a cardinal principle of the administration of justice that a party to a cause must be given opportunity to be heard before any decision can be taken against him; and that if the principle is breached, the proceedings conducted in such circumstance would amount to a nullity no matter how eminently or elegantly conducted. Learned counsel cited several authorities, amongst them, the cases of

OGUNDOYIN V. ADEYEMI (2001) 13 NWLR (PT. 730) 403 @ 421 A – D; OYEYEMI V. COMMISSIONER FOR LOCAL GOVERNMENT KWARA STATE (1992) 2 NWLR (PT. 226) 661; MOHAMMED & ANOR V. OLAWUNMI (1990) 2 NWLR (PT. 133) 458 @ 485 B – C; URHATA V. MENTA LTD (1968) NWLR 55 @ 58.

RESPONDENTS’ ARGUMENTS:

Learned counsel relying on the cases of OLATUNBOSUN V ANNENITH (2009) 15 NWLR (PT.1165) 560 @ 573 A; DAIRO VS. FEDERAL REPUBLIC OF NIGERIA (2013) ALL FWLR (PT.663) 1921 @ 1937; OGUNFAYO VS. ADELAJA (2009) 15 NWLR (PT. 1163) 150 S.C.; ADO V. COMM., WORKS BENUE STATE (2007) 15 NWLR (PT. 1058) 429 @449 B – D; E.B. PLC. AWO OMAMMA VS. NWOKORO (2012) 14 NWLR (PT.1321) 488 @ 511 F – G submitted that the Appellant was not denied fair hearing; that he appeared only two times throughout the numerous occasions the case was adjourned; that he deliberately failed to appear to cross-examine PW1 and that a party who deliberately failed to attend Court cannot turn round and claim lack of fair hearing. He urged us to discountenance the submissions of the Appellant’s Counsel on the issue of denial of fair hearing. He referred to A.C.N V LAMIDO (2012) 8 NWLR (PT.1302) 560 @ 594 A– B where it was held that: “The test whether a party in a case was given a fair hearing is the impression of a reasonable person who was present at the trial or who was aware of the proceedings from his observation, he would have no difficulty concluding if justice has been done in the case.”

Counsel also cited the case of; MIL. GOV. LAGOS STATE VS. ADEYIGA (2012) 5 NWLR (PT. 1293) 291 @ 320 B – C; where the Supreme Court observed:

“Whenever a party has been given ample opportunity to ventilate his grievances in a Court of law but chooses not to utilize same he cannot be heard to complain of breach of his right to fair hearing, as what the Court is expected to do by virtue of Section 36 of the 1999 Constitution is to provide a conducive atmosphere for parties to exercise their rights to fair hearing.”

Learned counsel submitted that from the circumstances of the case at the lower Court, especially considering the refusal of the Defendant’s Counsel to cross-examine PW1 for more than two years, the lower Court’s proceedings of 21st December, 2007 in taking the evidence of PW2, PW3, PW4 and PW5 did not amount to a denial of fair hearing.

RESOLUTION:

It is necessary for a clear picture to examine summarily the history of the proceedings in the lower Court. On the 4th day of November, 2005, the Plaintiffs/Respondents were present, the defendant/Appellant was absent but his counsel was in Court. Learned trial Judge stood down the case and later on that day, hearing commenced with PW1 giving his evidence; pages 48 and 49 of the Record. The Defendant/Appellant’s counsel asked for adjournment for cross-examination of PW1. The case was adjourned. Thereafter the case suffered several adjournments for various reasons on the application of both sides and as a result of the Court not sitting. Finally on 21st December 2007, in the absence of the Defendant/Appellant and his counsel, and in the absence of any evidence that they were served with hearing notice for the day’s sitting, the Court recommenced hearing and took evidence from the remaining witnesses of the Plaintiff/ Respondent (PW2-PW5). The case was further adjourned to 11th day of January 2008 for judgment again without any order for the issuance of hearing notice on the Appellant or his Counsel. On 11th of January 2008, the lower Court delivered j u d g m e n t g r a n t i n g a l l t h e c l a i m s o f t h e Plaintiffs/Respondents. From close scrutiny of the Record, there was no evidence that hearing notice was served on the Appellant before the hearing of 21/12/2007. After taking the evidence of PW2 on 21/12 07, the Court could have adjourned and given the Appellant notice to appear and cross-examine PW2 on the next adjourned date. Nothing of the sort happened. The Court took evidence of all the remaining witnesses, took the address of counsel and adjourned the case to 11/01/08 for judgment. Judgment was delivered on 11/01/08, again without any hearing notice on the Appellant.

It is trite that the service of hearing notice on a party is not just procedural but a substantive issue which goes to the jurisdiction of the Court to hear the suit. Where the Court failed to sit on a date originally fixed for adjudication or when that schedule was aborted by unforeseen circumstances, fresh hearing notices must be ordered and served on the parties to intimate them of the new date in order to uphold the principle of fair hearing. This is why the Courts have adopted the practice whenever a matter is fixed for hearing and one of the parties is absent in Court; of searching its records to see whether hearing notice was duly issued; and recording the outcome of the search. If there was no service of hearing notice, the Court is duty bound to adjourn the case and order that hearing notice be issued on the defaulting party. I repeat the quotation from the appellant’s brief: MANKANU V. SALMAN (2005) 4 NWLR (PT. 915) @ 292 – 293 G – C where the Court of Appeal held thus:

“After going through the submission of both counsel and the record of proceedings I hold that the lower Court, whatever happened, ought to have ordered that hearing notice (be served) on the Appellants against the proceedings of 19/9/99. I agree that both parties were present in Court when the learned trial judge fixed a date for defence. However, that date fell on certain crisis in the state which necessitated the Court not to sit on that date. When the lower Court ultimately fixed another date for defence, the Appellants should have been informed of the new date …. The lower Court must endeavor to order for a fresh hearing notice to be re-issued on them.”

At page 301, paragraphs a- c, the Court went further to say “……..But the lower Court should have caused hearing notices to be served on the Defendants ……. In doing so, the Court would have exercised the requisite caution and satisfied itself that indeed, the Defendants had due notice. This may appear to be an-over indulgence of the Defendants but I think it is a desirable price to pay in the quest to attain maximum justice.”

Also in OGUNDOYIN V. ADEYEMI (SUPRA) cited copiously by both sides, the SC held that where a party fails to appear in Court, the Court owes it as a duty to examine its records to determine whether the party was served with hearing notice.

It is clear therefore that all the submissions of learned counsel for the Respondents about the lackadaisical attitude of the Appellant or his appearing only twice and choosing when or whether to appear at all go to no issue. What is important is this: “Was hearing notice served on him on the date hearing finally took place in his absence?” The submissions of learned counsel for the Respondents will be meaningful only if there was evidence that the party was issued hearing notice and he deliberately absented himself from Court. There is no evidence from the Records that hearing notice was issued on the Appellant. The learned trial Judge failed to comply with this time tested and trite procedure. The failure of the lower Court to order issuance and service of hearing notice on the Appellant or his counsel for the hearing of 21/12/07 and 11/01/08 was in clear breach of his right to fair hearing as guaranteed by Section 36 (1) (6) of 1999 Constitution of the Federal Republic of Nigeria as amended.

I n t h e c a s e o f B A D A V . A T U N B I ( 2 0 1 1 ) LPELR-9256(CA) Mukhtar JCA (as he then was) summarized it all as follows:

“The duty on the Court to notify litigants of hearing date is a constitutional one by virtue of Section 36 of the 1999 Constitution which guarantees every person the right to fair hearing including the right to be notified of the hearing date……………………..This Court in S.P.D.C. Nig Ltd v. Niger Optical Services Co (supra) at p. 435 paras G-H per Ikongbe JCA observed thus: (Citation: (2004) 7 NWLR ‘The duty of getting the hearing of a case back on track after disruption is on the Court, not on the litigant or his lawyer. The Court is to notify the parties of the new date fixed after the disruption of hearing. The defendant’s duty to appear in Court on the date notified to it to defend the plaintiff’s action does not become due until the Court performs its own, that is informs him of the new date. Therefore where the Court is in default of this primary duty, it cannot justifiably hold the defendant to its own duty which is only secondary……… A Court must be willing to go an extra mile in satisfying itself that a party to a case has notice of the hearing date. In doing so, the Court would have exercised the requisite caution and satisfied itself that indeed, the parties had due notice. Although this may appear to be an over-indulgence of the parties, but it is a price desirable to pay in the quest to attain maximum justice. Thus, where parties are repeatedly absent in Court, the only procedure to take is to issue a hearing notice.’ The Appellant’s motion for setting aside the judgment entered without placing them on notice of the hearing proceedings ought to have been granted in the circumstances because the proceedings and the judgment were null and void.”

Any hearing conducted in the absence of proof of service of hearing notice on any of the parties is a denial of fair hearing and cannot be allowed to stand. In OGUNDOYIN V. ADEYEMI (SUPRA) @ 421A – D as quoted by the Respondent in his brief, the Supreme Court held:

“Fair hearing is also a rule of natural justice. Thus, in Donatus Ndu V. The State (1990) 7 NWLR (Pt. 164) 550 at 578 Nnaemeka – Agu, J.S.C. stated the law succinctly thus:

‘The very essence of fair hearing under Section 33 of the Constitution of 1979 is a hearing which is fair to both parties to the suit, be they plaintiffs or defendants or prosecution and defence. The section does not contemplate a standard of justice which is biased in favour of one party and to the prejudice of the other. Rather it imposes an ambidextrous standard of justice in which the Court must be fair to both sides to the conflict.”

Still quoting from the above case at PAGES 422 – 423 H – C, the Supreme Court observed:

“The hearing notice issued on 9/9/93 was meant to re-fix the appeal for and to supersede the 13/9/93 date. There was no proceeding in the appeal on 13/9/93 as it did not come up on that day. The learned Justice of the Court below owed it as their duty to examine the Court record as to whether the Appellants were served with hearing notice but deliberately absented themselves, including their counsel from Court, and did not take the opportunity of being heard. In those circumstances, can it be said that the Appellants were given a fair hearing in the instant case here on appeal? I take the firm view that the Appellants were not given a fair hearing in the instant case here on appeal. In Alhaji Chief Yekini Otapo V. Chief R.
O. Sunmonu & Ors (Supra) Obeseki, JSC in answering a similar question said

“………. A hearing can only be fair when all the parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as fair hearing.”

When the Appellants were not heard before their appeal was dismissed they were not by any stretch of imagination given a hearing let alone fair hearing by the Court below. It is indeed trite law that a party who will be affected by the result of a judicial enquiry must be given opportunity of being heard, otherwise the action taken following the inquiry will be unconstitutional and illegal……”

The above quotation is very apt. The Appellant was not given the opportunity to be heard. The proceedings of 21/12/07 and the judgment of 11/01/08 are unconstitutional and illegal. See also the following cases: EMUAKPOR V UKAUBE (175) 12 SC 41; ADIGUN V. ATTORNEY GENERAL OF OYO STATE (1987) 1 NWLR (PT. 53) 678 @ 709; OYEYEMI V. COMMISSIONER FOR LOCAL GOVERNMENT KWARA STATE (1992) 2 NWLR (PT.226) 661; MOHAMMED & ANOR V. OLAWUNMI (1990) 2 NWLR (PT. 133) 458 AT 485 B – C; URHATA V. MENTA LTD (1968) NWLR 55 AT 58; MADUBUIKE V. MADUBUIKE (2001) 1 NWLR (PT. 695) 472; OLANIYAN V. UNIVERSITY OF LAGOS (1985) 2 NWLR (PT. 9) 599; OTAKPO V. SUNMONU (1987) 2 NWLR (PT. 58) 587.

I agree with the submissions of learned counsel for the Appellant in his Reply brief that all the authorities referred to by the Respondent were instances where the complaining party was given the opportunity to present his case by being served the relevant hearing notice and he failed to take advantage of it. Such a party cannot complain of lack of fair hearing. In the instant appeal, hearing notice was not served on the Appellant. He was denied fair hearing.

In the light of the foregoing, it is needless going into the merits of the appeal by considering issue 2. This appeal has merit and is allowed. The judgment of Solanke J. in Suit No. HCT/343/2004 delivered on 11/01/08 is hereby declared null and void for failure to issue hearing notices to the Appellant. The judgment is set aside and the suit remitted to the Chief Judge of Ogun State for assignment to another Judge for trial de novo. I make no order as to costs.

TSAMMANI, JCA

I concur with the judgment just delivered by my learned brother, C. E. Iyizoba, JCA.

The right to fair hearing as enshrined in Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), encapsulates so many elements or attributes. Thus, a hearing would be said to be fair, if the person to be affected by the decision of the Court is granted:

(a) An opportunity to be present all through the proceedings in order to hear all the evidence against him;

(b) The opportunity to cross-examine or otherwise confront or contradict all the witnesses that testify against him;
(c) Opportunity to have read before him all the documents tendered in evidence at the hearing;
(d) To have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, pre-judicial to him;

(e) Opportunity to know the case he has to meet at the hearing and to have adequate opportunity to prepare his defence; and

(f) Opportunity to give evidence himself, call witnesses, if he likes, and make oral submissions either personally or through a counsel of his choice.

In the instant case, the complaint of the Appellant is that, the trial court conducted substantial part of its proceedings in his absence, as no hearing notice of the hearing date was served on him. As enumerated above, one of the guiding principles of natural justice is that, a person is entitled to adequate notice and opportunity to be heard before any judicial order is pronounced against him. The concept of fair hearing, which is an attribute of natural justice includes the right to be heard. See Yakubu v. Gov; Kogi State (1995) 8 NWLR (pt.414) p.386 and S & D Construction Co. Ltd v. Chief Bayo Ayoku & Anor (2011) LPELR – 2965 (SC).

Accordingly, failure of the Court to issue hearing notice to a party where such service is required is a fundamental error which may have the effect of nullifying the entire proceedings of the Court, because in such a situation the Court would have no jurisdiction to proceed with the case in the absence of such hearing notice. A Court must therefore ensure that all the parties to the dispute have been duly served hearing notice before proceedings are commenced or continued. See Mark v. Eke (2004) 5 NWLR (pt.865) p.54 and Nyamati Enterprises Ltd v. N.D.I.C. (2006) All FWLR (pt.293) p.356. See also Udukauba v. Kolomo (2005) 4 NWLR (pt.91S) p.411 at 430 – 431.

In the instant case, on the 4/11/2005 parties were in Court when the matter was adjourned for the cross-examination of the P.W.1 and continuation of hearing. The case then suffered several adjournments, with the result that the Court did not sit on the case again till the 21/12/2007, which is a period of over two years from the last date of adjournment.

On the said 21/12/07, neither the Appellant nor his counsel was in Court. There is nothing on the record to show that the trial Court investigated to find out if the Appellant had notice of that hearing date.

Proceedings then continued till the learned trial Judge took evidence from the Respondents’ witnesses and thereafter pronounced judgment against the Appellant. Clearly therefore, the proceedings leading to the judgment was conducted without jurisdiction.

For the above reasons, I agree with my learned brother, that on this ground alone, this appeal has merit. It is hereby allowed. The judgment of the Court below is hereby set aside. I abide by the consequential order(s) made therein.

OKORONKWO, JCA

As my lord Chinwe Eugenia Iyizoba observed, fair hearing is a fundamental axiom in any judicial proceedings and any breach of it however slight renders such proceedings void. It is always presumed that infraction of it affects the justice of any case. It is immaterial that in actual fact it did not affect the substance of the case.

It is for this reason that I agree with the lead judgment herein and the orders made.