OMAKA v. UMOFFIA & ORS
(2020)LCN/15264(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Tuesday, May 19, 2020
CA/C/27/2016
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
Philomena Mbua Ekpe Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Between
OMAKA JOE OMAKA APPELANT(S)
And
MADAM PATIENCE OKANG UMOFFIA & ORS RESPONDENT(S)
RATIO
CONSTRUCTION OF A STATUTORY PROVISION
In the construction of a statutory provision, where a statute mentions specific things or person, the intention is that those not mentioned are not intended to be included. See Oluwalogbon vs. Government of UK (2005) 14 NWLR (pt. 946) 760, Ehuwa vs. OSIEC (2006) 18 NWLR (pt. 1012) 544 at 568 – 569, Ogbuagu J.S.C., Mil. Gov. Ondo State vs. Adewunmi (1988) 3 NWLR (pt. 82) 2, Bendel State vs. Aideyan (1989) 4 NWLR (pt. 118) 646, Omoworare vs. OMISORE (2010) 3 NWLR (pt. 1180) 58, Orji vs. Ugo Chukwu (2009) 14 NWLR (pt. 1161) 2007 at 291 – 293, Jokolo vs. Kebbi State (2009) 11 NWLR (pt. 1152) 391, Johnson vs. Mobil Prod. (Nig.) Unltd. (2010) 7 NWLR (pt. 1194) 462, S.E.C. vs. Kasunmu (2009) 10 NWLR (pt. 1150) 509 at 537. PER OWOADE, J.C.A.
WHETHER OR NOT DECLARATION OF RIGHT COUPLED WITH PERPETUAL INJUNCTIONS CAN ONLY BE GRANTED BY HEARING EVIDENCE AND NOT GRANTED IN DEFAULT OF DEFENCE
Indeed, it is trite that declarations of right coupled with perpetual injunctions can only be granted by hearing evidence and cannot be granted in default of defence. This is because the onus is clearly on the Plaintiff in a claim for declaration or rights including title to land to lead strong and positive evidence to establish his entitlement to such declaration. The law is thus settled that the Court does not grant declaration of right either in default of defence or, indeed on admission without hearing evidence and being satisfied by such evidence. See Ogunjumo vs. Ademolu (1995) 5 NWLR (pt. 389) 254 at 269, Vincent Bello vs. Magnus Eweka (1981) 1 SC 101, Wallersteiner vs. Moir (1974) 3 ALL E.R. 217, Motunwase vs. Sorungbe (1988) 5 NWLR (pt. 92) 90 at 101 – 102.
In the case of Ogolo vs. Ogolo (2006) 5 NWLR (pt. 972) 163 at 184 Onnoghen J. S. C. (as he then was) held thus:
“It must be noted that the reliefs claimed by the Respondent at the trial Court and which were granted in the default judgment included a declaratory relief. The law is settled that such relief cannot be granted without oral evidence by the Plaintiff even where the Defendant expressly admitted same in the pleadings, the said relief being equitable in nature, when looked at from that angle. It becomes very clear that the trial judge was under a misconception of the law when he granted the declaratory judgment in default of statement of defence thereby rendering the said judgment liable to be set aside upon proper application to that effect”.
See also Okedare vs. Adebara (1994) 6 NWLR (pt. 349) 157 at 186, Usikaro vs. Itsekiri Land Trustees (1991) 2 NWLR (pt. 172) 150 at 173, O. E. O. L. G. vs. Etiti (2001) 2 NWLR (pt. 696) 63 at 71. PER OWOADE, J.C.A.
WHETHER OR NOT SERVICE OF HEARING NOTICES IS A KEY PRINCIPLE OF PROPER ADJUDICATION
In the case of Teno Engineering Ltd. vs. Adisa (2005) ALL FWLR (pt. 260) 183 at 187, Belgore JSC spoke for the Supreme Court and held that one of the key principle of proper adjudication is the service of hearing notices which is a fundamental aspect of the principle of natural justice i.e. audi alteram partem and consequently a principle of fair hearing.
See also Mpama vs. First Bank of Nigeria Plc. (2013) ALL FWLR (pt. 674) 129 at 147, A-G River State vs. Ude (2007) ALL FWLR (pt. 247) 589 at 613, S. G. B. N. Ltd. vs. Adewunmi (2003) 10 NWLR (pt. 829) 526 at 539 – 540, N. I. I. T. Zaria vs. Dange (2008) 9 NWLR (pt. 1091) 127, Mbadinuju vs. Ezuka (1994) 10 S. C. N. J. 109 at 121 – 122, John Andy Sons & Co. Ltd. vs. Mfon (2006) 12 NWLR (pt. 995) 461, Essien vs. Edet (2004) 5 NWLR (pt. 857) 519, B. O. N. vs. Abiola (2007) 1 NWLR (pt. 1014) 23, Usman vs. K. S. H. A. (2007) 11 NWLR (pt. 1044) 148, Nasco Mgt Serv. Ltd. vs. A. N. Amaku Trans Ltd. (2003) 2 NWLR (pt. 804) 290. PER OWOADE, J.C.A.
THE PRINCIPLE OF FAIR HEARING
Truly, the question of fair hearing is not just an issue of dogma. Whether or not a party had been denied of his right to fair hearing is to be judged by the nature and circumstances of a particular case.
The crucial determinant is the necessity to afford the parties equal opportunity before the Court give its judgment. The very essence of fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is a hearing which is fair to both parties to the suit. 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 of the conflict. The hearing must be fair and in accordance with the twin pillars of justice – namely audi alteram partem and nemo judex in causa sua. See Barrister (Mrs.) Amanda Peters Pam & I OR. Vs. Nasiru Mohammed & Anor. (2008) 16 NWLR (pt. 1112) 1 at 48 – 49 per Oguntade JSC. Mohammed vs. Kano N. A. (1968) 1 ALL NLR 424 at 433. Ogundoyin vs. Adeyemi (2001) 13 NWLR (pt. 730) 403 at 423 per ONU JSC ASTC vs. Quorum Consortium Ltd. (2004) 1 NWLR (pt. 855) 601. So Maisonka & Co. (Nig.) Ltd. vs. Adzege (2001) 9 NWLR (pt. 718) 312. PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the judgment of His Lordship, the Honourable Justice Elias O. Abua of the Calabar Judicial Division of the High Court of Cross River State, delivered on the 28th Day of May, 2013 in suit No: HC/80/2012.
On 8th March, 2012, the Respondent as Claimant issued a Writ of Summons accompanied by statement of claim against the Appellant and four (4) other Defendants now substituted for the Appellant only.
The Respondents as Claimants claim for declarative and injunctive orders as follows:
a. A declaration that the 1st Claimant never demised her property nor did she authorize the 2nd & 3rd Defendants to demise her property to the 1st Defendant or anybody.
b. A declaration that the 1st – 3rd Claimants never gave the Defendants consent to the transaction.
c. A declaration that the purported transaction is void, as it never existed. The same having been forged.
d. A declaration that the 1st Defendant entered into a void transaction inspite of the Caveat conspicuously printed on the property, and was thus in trespass of the property.
e. An order nullifying the alleged assignment of all that land and building lying and situate at 118/9 Old Ikang Road, Calabar.
f. An order that the Defendants have trespassed on the property occupied by the 4th & 5th Claimants.
g. An order on the 1st Defendant to return the stolen landed documents in respect of all that property lying and situate at 118/9 Old Ikang Road to the 1st Claimant.
h. General damages in the sum of N50,000,000.00 (Fifty Million Naira) jointly and severally against the Defendant.
The said statement of claim of the Respondents/Claimants was accompanied by written statements on oath of the claimants. The Appellant(s) had not entered appearance in the suit and had not filed any processes when on 28th May, 2013, Patrick Ekuri Esq., appeared for the Claimants (Respondents) and moved the Court orally for judgment as per claimant’s statement of claim filed on the 8th day of March, 2012. As the Defendants have neglected to enter appearance or file any defence in this case. In so moving the Court, the Claimants (Respondent) relied on the provision of Order 13 Rule 17 of the High Court (Civil Procedure) Rules 2008 of Cross River State.
On the same day, the learned trial judge entered judgment for the Claimants/Respondents. The Court event of 28th day of May, 2013 is best captured as it is shown on page 57 of the Record.
IN THE HIGH COURT OF CROSS RIVER STATE OF NIGERIA
IN THE CALABAR JUDICIAL DIVISION
PRESUMED AT CALABAR
BEFORE HIS LORDSHIP, HON. JUSTICE ELIAS O. ABUA – JUDGE
THIS TUESDAY, THE 28TH DAY OF MAY, 2013
SUIT NO. HC/80/2012
BETWEEN:
Madam Patience Okang Joe Umoffia & 2 ORS. – Claimants
AND
Mr. Omaka Omaka Joe & 4 ORS- Defendants
Parties:
1st and 3rd Claimants present
Defendants all absent
Appearances:
Patrick Ekuri Esquire with Chris Onugba Esquire for Claimants
Defendants Unrepresented.
EKURI:
All Defendants have been served with all originating processes in this case. 4th and 5th Defendants have been served by substitute means after leaving the Court in that regard had been granted.
Matter was adjourned for Pre-Trial. No memo of appearance or Statement of Defence filed by the defence.
We apply under Order 13 Rule 17 of the High Court (Civil Procedure) Rules 2008 for judgment as per Claimants’ Statement of claim filed on the 8th day of March, 2012 as the Defendant have neglected to enter appearance or filed any defence in this case.
JUDGMENT
I have perused the contents of this file and noted that all the Defendants have been served originating processes in this case.
They have failed to file any appearance and have also not filed any Statement of Defence. I shall in the circumstance and as urged by the Claimants enter judgment against the Defendants jointly and severally as per the Statement of Claim of the Claimants of 8th March, 2012.
Judgment for the Claimants as per their Statement of Claim in para. 17 thereof.
Cost of N20,000 awarded Claimants against the Defendants jointly and severally.
SGD.
HON. JUSTICE ELIAS O. ABUA
JUDGE
28TH MAY, 2013
Dissatisfied with the above judgment, the Appellant with leave of this Court filed a Notice of Appeal containing three grounds of Appeal in this Court on 17th June, 2015. The Appellant’s three (3) grounds of Appeal together with their particulars are reproduced below for ease of reference.
GROUNDS OF APPEAL:
1. GROUND ONE; ERROR IN LAW:
The learned trial judge erred in law when he assumed that he could act under Order 13, Rule 17 of the High Court of Cross River State (Civil Procedure) Rules 2008 to make a declaration of title to land and/or order the recovery of possession of land from, cum order injunctive reliefs against the Appellant without any evidence being led before him and on an oral application of counsel.
PARTICULARS OF ERROR:
i. The Claims before the learned trial judge were for various declaratory and injunctive orders against the Appellant and the 4th, 5th and 6th Respondent.
ii. The 1st, 2nd and 3rd Respondents were in a nutshell seeking declaration of ownership to the disputed property, nullification of the transaction they entered into with Appellant, injunction including damages for trespass.
iii. When the matter came up before the learned trial judge on Tuesday, the 28th day of May, 2013, learned counsel to the Claimants/Respondents merely drew the Court’s attention to the fact that there was “no memorandum of appearance or statement of defence.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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iv. Learned counsel then applied orally for judgment and the learned trial judge there and then entered judgment summarily in favour of the 1st, 2nd and 3rd Respondents herein against the Appellant and the 4th, 5th and 6th Respondent.
v. There was no evidence led by the Claimants/Respondents in support of their claims before the learned trial judge on the basis of which the judgment was given.
vi. Order 13, Rule 17 of the Cross River State High Court (Civil Procedure) Rules 2008 does not envisage judgment being given without evidence.
2. GROUND TWO: ERROR IN LAW:
The learned trial judge erred in law when he acted on the provisions of Order 13, Rule 17 of the High Court of Cross River State (Civil Procedure) Rules 2008 and failed to take into consideration the procedural provision of Order 21, Rule 1 of the High Court of Cross River State (Civil Procedure) Rules 2008, which failure has occasioned a breach of the Appellant’s right to fair hearing and a serious miscarriage of justice.
PARTICULARS OF ERROR:
i. Order 13, Rule 17 of the High Court (Civil Procedure) Rules of Cross River State, 2008 permits a claimant to apply to a judge for judgment in default of appearance.
ii. Order 21, Rule 1 of the same High Court Rules provides that where by the Rules any application is authorized to be made to a judge; such application shall be made by motion on notice to the other party.
iii. The application in the instant case was made orally and not by motion.
iv. The judgment was also entered summarily by the learned trial judge and without notice to the Defendants therein, particularly the 1st Defendant/Appellant herein.
v. The High Court of Justice by our law is not a Court of summary jurisdiction but a superior of record.
3. GROUND THREE: ERROR IN LAW:
The learned trial judge erred in law when he failed to give the Appellant the opportunity to be heard before giving judgment against him.
PARTICULARS OF ERROR:
i. The matter was listed for pre-trial on 28th day of May, 2013. This was not slated for a motion for judgment and no such matter was pending before the learned trial judge.
ii. The Appellant was not in Court on previous adjourned dates and there was no proof that the Appellant had notice that the matter was adjourned to 28th May, 2013.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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iii. The Appellant was entitled not only to know of the pendency of the suit in Court, he was also entitled to be served with hearing notice of subsequent adjourned dates, including the date of judgment when any decision is to be taken against him.
iv. The Appellant’s constitutional right to fair hearing was breached by the learned trial judge.
The Appellant with leave of this Court obtained an order to have the appeal heard on the Appellant’s brief of argument alone on 10th March, 2020 and later by leave of the Court granted on 21st November, 2018 filed an Amended brief of Argument on 21st January, 2019.
Learned Counsel for the Appellant nominated two issues for determination of the appeal. They are:
1. Was the learned trial judge not in error when he acted under Order 13, Rule 17 of the High Court of Cross River State (Civil Procedure) Rules, 2008 to make a declaration of title to land among other declaratory/injunctive reliefs against the Appellant without any evidence before him and on an oral application of learned counsel? (Ground 1).
2. Whether the learned trial judge afforded the Appellant fair hearing when he acted under Order 13, Rule 17 of the High Court of Cross River State (Civil Procedure) Rules 2008 to enter judgment for the Respondents without taking cognizance of the provisions of Order 21, Rule 1 of the same High Court Rules? (Grounds 2 and 3).
Learned Counsel for the Appellant argued issues No. 1 and 2 together. He submitted that the main complaint of the Appellant in this appeal is the summary way the learned trial judge entered judgment in the case on the very first day the matter came up before him granting all the declaratory and injunctive reliefs together with the damages claimed by the Claimants therein without any evidence before him and without affording the Appellant sufficient opportunity to be heard. That approach is not only against settled position of the law on the grant of such declaratory reliefs, it also breaches the Appellant’s right to fair hearing.
He submitted that the invocation and application of Order 13, Rule 17 of the High Court of Cross River State (Civil Procedure) Rules 2008 in the circumstance of the case was improper and has unduly occasioned a miscarriage of justice. This is so because, beside the fact that the case before His Lordship, the learned trial judge was a land dispute, the reliefs sought were not such that could be granted without satisfactory or credible evidence being led in proof thereof. They were declaratory and injunctive reliefs together with monetary claim for damages. No assessment was made as to the quantum or damages the Late Madam Patience Okang Umoffia (the then 1st Respondent) was entitled to, if at all in the circumstances. The learned trial judge shut his eyes and just granted the entire eight (8) reliefs. The learned counsel for the Ekuri Esq, merely invoked Rule 17 of Order 13 of the High Court of Cross River State (Civil Procedure) Rules 2008, the learned trial judge relied upon the same provision, it provides thus:
“if no appearance is entered within the time prescribed in the originating process in a claim for recovery of land, or if appearance is entered but the defence is limited to part only of the claim, a claimant may apply to a judge for judgment stating that the person whose title is asserted in the originating process shall recover possession of the land, or of that part of it to which the defence does not apply.”
Learned Counsel for the Appellant contends notwithstanding the provisions of Order 13, Rule 17 of the High Court of Cross River State (Civil Procedure) Rules, the Courts do not grant declarations of right coupled with perpetual injunctions in default of defence without hearing evidence and being satisfied by such evidence that the claimant is entitled to the declarations and injunctions sought. This, said counsel is because declaration of rights are not granted even on the basis of admission by the other party. The party seeking a declaration of his entitlement to certain rights must prove his entitlement thereto.
He referred on the above to the cases of Ogunjumo vs. Ademolu (1995) NWLR (pt. 389) 254 at 269 per Iguh J.S.C., Motunwase vs. Sorungbe (1988) 5 NWLR (pt. 92) 90 at 101 – 102 per Nnamani J.S.C., Bello vs. Eweka (1981) 1 S.C. 101, Nwabuoku vs. Onwordi (2006) ALL FWLR (pt. 331) 1236 at 1249.
Appellant’s Counsel conceded that by Order 13, Rule 17 of the High Court of Cross River State (Civil Procedure) Rules 2008, the trial Court has the discretion to enter judgment in default of defence but that provision is subject to other applicable provisions of the Rules, particularly Order 30, Rule 2 of the High Court of Cross River State (Civil Procedure) Rules 2008, dealing with proceedings in default of appearance by defendant at trial which provisions are in consonance with the case – laws above cited. Rule 2 of Order 30 of the High Court Rules of Cross River State provides:
“When a cause is called for hearing; if the claimant appears and the Defendant does not appear, the claimant shall proceed to prove his claim, so far as the burden of proof lies upon him; but if he cannot so proceed, the judge shall unless he sees good reason to the contrary, strike the cause out.”
Learned counsel for the Appellant submitted further that the ambit of the discretion provided by Order 13 Rule 17 above is limited to the fulfillment of those conditions precedent that are applicable to proving certain matter. For instance, that the instant case did not just focus on a declaration of title to land, the claim itself is rooted on averments founded on criminal allegations yet said counsel, our law is that if the commission of a crime by a party to any proceedings is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.
He referred on the above to the provision of Section 135 (1) of the Evidence Act 2011 and also to the cases of Olateju vs. Comm. For Land and Housing Kwara State (2010)14 NWLR (pt. 1213), State vs. Njoku (2010) 1 NWLR (pt. 1175) 243, M. M. A. Inc. vs. N. M. A. (2013) 3 NWLR (pt. 734) 1.
Learned Counsel for the Appellant pointed out two other fundamental errors of procedure in the judgment appealed against.
The first is that the learned trial judge proceeded with the matter to judgment on the very first day the case came before him even when the record of proceedings revealed that the case was slated for pre-trial.
Second, that the learned trial judge entered the judgment on the oral application of learned counsel for the Claimants/Respondents contrary to the prescription of Order 21, Rule 1 of the High Court of Cross River State (Civil Procedure) Rules 2008; which directs that every application to the Court must be made by Motion on Notice and supported by affidavit.
The culmination of these breaches according to counsel was a violation of the Appellant’s right to fair hearing. The Appellant was entitled to know that judgment was to be entered against him.
On this, Appellant’s counsel referred to the provision of Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and the case of Olufeagba vs. Abdul Raheem (2009) 18 NWLR (pt. 1173) 384 SC.
He added that a breach of the constitutional provision relating to fair hearing as in the instant case vitiated such proceedings and renders same null and void.
Learned counsel for the Appellant submitted further that the drafts men of Order 13 Rule 17 of the High Court of Cross River State (Civil Procedure) Rules 2008 did not intend for it to be used as a shield against fair hearing. Any law that deprives a party of fair hearing is contrary to the provisions of the Constitution and to that extent is void. He referred on this to the case of NWONGU VS. AKU & ORS. (1993) 11 SC 129.
Learned Counsel for the Appellant submitted that the principle of audi alteram partem was not activated in favour of the Appellant in this case.
That the Appellant was not even served with Hearing Notice in this “one day proceeding” and that this fundamental irregularity amongst others occasioned a miscarriage of justice which vitiated the entire proceeding.
He referred to the cases of Teno Engineering Ltd. vs. Adisa (2005) ALL FWLR (pt. 260) 183 at 187, A-G Rivers State vs. Ude (2007) ALL FWLR (pt. 347) 589 at 613, Mpama vs. First Bank of Nigeria Plc. (2013) ALL FWLR (pt. 674) 129 at 147, Pam vs. Mohammed (2008) 16 NWLR (pt. 1112) 1 at 49 – 50. He concluded that it is improper to approach the meaning of fair hearing by placing reliance on any prior assumption as to its technical requirement. The simple approach is to look at the totality of the proceedings before the Court and form an opinion on subjective standards whether or not an equal opportunity has been afforded to parties to “ventilate their grievances”; and in this case the answer is a “No”.
He urged us to resolve the issues in favour of the Appellant.
RESOLUTION OF ISSUES
The Appellant in this appeal has submitted two related issues for determination of the appeal – both bordering on fundamental breaches of fair hearing in the Appellant’s case.
It is appropriate to start the discussion from what I would now call the wrongful invocation of the provision of Order 13, Rule 17 of the High Court of Cross River State (Civil Procedure) Rules 2008 by the Court below. The provision provides thus:
“if no appearance is entered within the time prescribed in the originating process in a claim for recovery of land, or if appearance is limited to part only of the claim, a claimant may apply to a judge for judgment stating that the person whose title is asserted in the originating process shall recover possession of the land, or of that part of it to which the defence does not apply”.
The purpose of the above provision is to create an undefended list type of procedure in situations where title to land is undisputedly asserted and the claim of the plaintiff is merely for recovery of land or possession. The above provision is not appropriate for invocation by counsel or Court where title or even possession is in dispute. It only applies for recovery of land and/or possession where title is ascertained. By its express words, Order 13 Rule 17 of the High Court of Cross River State (Civil Procedure) Rules 2008 intends the procedure for summary judgment therein only for “recovery of land”. The express mention of “recovery of land” excludes claims for declarations in any form simply because the express mention of one thing excludes the operation of another – this is the rule Expressio Unius Est Exclusio Alterius.
In the construction of a statutory provision, where a statute mentions specific things or person, the intention is that those not mentioned are not intended to be included. See Oluwalogbon vs. Government of UK (2005) 14 NWLR (pt. 946) 760, Ehuwa vs. OSIEC (2006) 18 NWLR (pt. 1012) 544 at 568 – 569, Ogbuagu J.S.C., Mil. Gov. Ondo State vs. Adewunmi (1988) 3 NWLR (pt. 82) 2, Bendel State vs. Aideyan (1989) 4 NWLR (pt. 118) 646, Omoworare vs. OMISORE (2010) 3 NWLR (pt. 1180) 58, Orji vs. Ugo Chukwu (2009) 14 NWLR (pt. 1161) 2007 at 291 – 293, Jokolo vs. Kebbi State (2009) 11 NWLR (pt. 1152) 391, Johnson vs. Mobil Prod. (Nig.) Unltd. (2010) 7 NWLR (pt. 1194) 462, S.E.C. vs. Kasunmu (2009) 10 NWLR (pt. 1150) 509 at 537.
By the rule of interpretation that the express mention of one thing precluded the operation of others not mentioned, the provision of Order 13 Rule 17 of the High Court (Civil Procedure) Rules of Cross River State cannot operate to include Respondents/Claimants claims for declaratory and injunctive orders. The learned trial judge was thus in error to have invoked the provisions of the said Order 13 Rule 17 of the High Court of Cross River State Rules to give judgment in the suit against the Appellant without hearing evidence.
Indeed, it is trite that declarations of right coupled with perpetual injunctions can only be granted by hearing evidence and cannot be granted in default of defence. This is because the onus is clearly on the Plaintiff in a claim for declaration or rights including title to land to lead strong and positive evidence to establish his entitlement to such declaration. The law is thus settled that the Court does not grant declaration of right either in default of defence or, indeed on admission without hearing evidence and being satisfied by such evidence. See Ogunjumo vs. Ademolu (1995) 5 NWLR (pt. 389) 254 at 269, Vincent Bello vs. Magnus Eweka (1981) 1 SC 101, Wallersteiner vs. Moir (1974) 3 ALL E.R. 217, Motunwase vs. Sorungbe (1988) 5 NWLR (pt. 92) 90 at 101 – 102.
In the case of Ogolo vs. Ogolo (2006) 5 NWLR (pt. 972) 163 at 184 Onnoghen J. S. C. (as he then was) held thus:
“It must be noted that the reliefs claimed by the Respondent at the trial Court and which were granted in the default judgment included a declaratory relief. The law is settled that such relief cannot be granted without oral evidence by the Plaintiff even where the Defendant expressly admitted same in the pleadings, the said relief being equitable in nature, when looked at from that angle. It becomes very clear that the trial judge was under a misconception of the law when he granted the declaratory judgment in default of statement of defence thereby rendering the said judgment liable to be set aside upon proper application to that effect”.
See also Okedare vs. Adebara (1994) 6 NWLR (pt. 349) 157 at 186, Usikaro vs. Itsekiri Land Trustees (1991) 2 NWLR (pt. 172) 150 at 173, O. E. O. L. G. vs. Etiti (2001) 2 NWLR (pt. 696) 63 at 71.
From the submissions of the learned counsel for the Appellant and even on the face of the proceedings of 28th May, 2013 in the Court below on page 57 of the record there are other infraction or breaches of fair hearing.
For example, learned counsel for the Respondents/Claimants at the Court below intimated the Court that the case was slated for pre-trial and yet proceeded to make an oral application for judgment under the provision of Order 13, Rule 17 of the High Court of Cross River State (Civil Procedure) Rules 2008.
The Appellant/Defendant was not given or served any notice as to the delivery of judgment. On this score, Learned Counsel for the Appellant pointed out the mechanical application of the provisions of Order 13 Rule 17 of the High Court of Cross River State (Civil Procedure) Rules 2008, by the learned trial judge without taking cognizance of Order 21 Rule 1 of the High Court of Cross River State (Civil Procedure) Rules 2008 and other relevant provisions of the Rules led to a breach of the Appellant’s right for fair hearing.
Order 21 Rule 1 (1) of the High Court of Cross River State (Civil Procedure) Rules 2008 provides:
“Where by these Rules any application is authorized to be made by a Judge, such application shall be made by motion which shall be supported by affidavit and shall state under what Rule of Court or Law the application is brought. Every motion shall be served within 5 days of filing.”
None of the breaches of fair hearing highlighted above seems to be comparable to the failure of the Court below to serve hearing notice to the Appellant(s)/Defendant(s) when in fact the case was slated for pre-trial and not delivery of judgment on 28th May, 2013.
In the case of Teno Engineering Ltd. vs. Adisa (2005) ALL FWLR (pt. 260) 183 at 187, Belgore JSC spoke for the Supreme Court and held that one of the key principle of proper adjudication is the service of hearing notices which is a fundamental aspect of the principle of natural justice i.e. audi alteram partem and consequently a principle of fair hearing.
See also Mpama vs. First Bank of Nigeria Plc. (2013) ALL FWLR (pt. 674) 129 at 147, A-G River State vs. Ude (2007) ALL FWLR (pt. 247) 589 at 613, S. G. B. N. Ltd. vs. Adewunmi (2003) 10 NWLR (pt. 829) 526 at 539 – 540, N. I. I. T. Zaria vs. Dange (2008) 9 NWLR (pt. 1091) 127, Mbadinuju vs. Ezuka (1994) 10 S. C. N. J. 109 at 121 – 122, John Andy Sons & Co. Ltd. vs. Mfon (2006) 12 NWLR (pt. 995) 461, Essien vs. Edet (2004) 5 NWLR (pt. 857) 519, B. O. N. vs. Abiola (2007) 1 NWLR (pt. 1014) 23, Usman vs. K. S. H. A. (2007) 11 NWLR (pt. 1044) 148, Nasco Mgt Serv. Ltd. vs. A. N. Amaku Trans Ltd. (2003) 2 NWLR (pt. 804) 290.
In the instant case, the totality of the proceedings of the Court below as recorded on page 57 of the record of appeal would give any reasonable observer the impression that the Appellant was not given fair hearing and that the said proceeding did not denote any form of fair trial. It would not be out of place to borrow the words of the learned counsel for the Appellant to say that the judgment of the Court below in this case was a philanthropic judgment.
Truly, the question of fair hearing is not just an issue of dogma. Whether or not a party had been denied of his right to fair hearing is to be judged by the nature and circumstances of a particular case.
The crucial determinant is the necessity to afford the parties equal opportunity before the Court give its judgment. The very essence of fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is a hearing which is fair to both parties to the suit. 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 of the conflict. The hearing must be fair and in accordance with the twin pillars of justice – namely audi alteram partem and nemo judex in causa sua. See Barrister (Mrs.) Amanda Peters Pam & I OR. Vs. Nasiru Mohammed & Anor. (2008) 16 NWLR (pt. 1112) 1 at 48 – 49 per Oguntade JSC. Mohammed vs. Kano N. A. (1968) 1 ALL NLR 424 at 433. Ogundoyin vs. Adeyemi (2001) 13 NWLR (pt. 730) 403 at 423 per ONU JSC ASTC vs. Quorum Consortium Ltd. (2004) 1 NWLR (pt. 855) 601. So Maisonka & Co. (Nig.) Ltd. vs. Adzege (2001) 9 NWLR (pt. 718) 312.
In the instant case, the proceedings that led to the judgment delivered by the Court below on 28th May, 2013 was a breach of the law as well as fundamental principles of fair hearing. The Learned trial judge was in erred of the law and in breach of procedural fair hearing.
Issue No. 1 and 2 are resolved in favour of the Appellant. This appeal is meritorious and it is allowed.
The judgment and Orders of the Honourable Justice Elias O. Abua of the Calabar Judicial Division of the High Court of Cross River State delivered on 28th May, 2013 in Suit No. HC/80/2012 are hereby set aside. Suit No. HC/80/2012 is according remitted to the Honourable, the Chief Judge of Cross River State for re-assignment and trial de novo before another Judge of the High Court of Cross River State.
N30,000.00 costs of this appeal is awarded to the Appellant.
PHILOMENA MBUA EKPE, J.C.A.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother, Mojeed A. Owoade, JCA. I agree entirely with the reasoning therein arid the conclusion arrived thereat.
The appeal is meritorious and is hereby allowed.
HAMMA AKAWU BARKA, J.C.A.: I was opportuned to have read in draft the judgment of my Learned brother MOJEED ADEKUNLE OWOADE, JCA, before now.
The two issues having been resolved to my satisfaction, I have no useful thing to add. I equally allow the appeal and abide with all orders made including that as to costs.
Appearances:
Mba E. Ukweni (SAN), with him, Mrs. O. A. Ochi, Esq., Chief P. O. Akpoke, Esq., Mrs. E. O. Onah, Esq., Eno Edet, Esq., A. J. Akobi, Esq., U. O. Igwenye, Esq. and R. S. Ubana, Esq. For Appellant(s)
1st – 6th Respondents’ Counsel served but absent For Respondent(s)
