SHOLA v. OFILI & ORS (2020)

SHOLA v. OFILI & ORS

(2020)LCN/15558(CA)

In The Court of Appeal

(BENIN JUDICIAL DIVISION)

On Monday, November 30, 2020

CA/B/367A/2010

Before Our Lordships:

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

VICTORIA SHOLA APPELANT(S)

And

1. EZEDIASHI OFILI 2. OSAKPAMWAN IGBINEWEKA 3. OSAZEE KINGSLEY IGBINEWEKA RESPONDENT(S)

RATIO:

PROCEDURE FOR THE PROVE OF BREACH OF FAIR HEARING

Now, the observance of the right to fair hearing of the citizen in the determination of their civil rights and obligations by every Court in the land is a fundamental prerequisite to valid adjudication to ensure that decisions are not reached without a hearing of the citizen. However, an allegation of denial of the right to fair hearing, as grave as it could be and the dire consequences it could have on the proceedings and judgment of a Court if proved, does not operate in a vacuum but is dependent on the facts and circumstances of each given case. In other words, whether the right to fair hearing was breached or not is a question of facts to be determined on the facts and circumstances placed before the appellate Court. Thus, it is the law that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case since it is primarily a matter of fact. Therefore, it is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constitute a breach of the party’s right to fair hearing. See Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See also News Watch Communications Limited V. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt. 993) 144. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

WHAT CONSTITUTE THE TRUE TEST OF FAIR HEARING?

I thought I should observe at once, here and now, that the true test of fair hearing is indeed the impression of a reasonable person who was present at or through the trial whether from his observation justice has not only been done but is seen to have been done in the case. Indeed, justice must not only be done in the thinking of the Court but must also be seen to have been done in the thinking and or estimation of any reasonable person seised of the proceedings of the Court. See Otapo v Sunmonu (1987) 2 NWLR (Pt.58) 587. See also Wilson v. AG of Bendel State (1985) 1 NWLR (pt.4) 572; A. U. Amadi v. Thomas Aplin & Co Ltd (1972) ALL NLR 413; Mohammed Oladapo Ojengbede v. M. O. Esan & Anor (2001) 18 NWLR (Pt.746) 771. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

PRINCIPLE OF HEARING NOTICE

My lords, a calm reading of the plethora of decided authorities on the prime place of the issue and service of hearing notice process in the litigation processes in our Courts, in line with the requirements of the sacrosanct provisions of the Constitution of Nigeria 1999 (as amended) readily reveals the following well settled position of the law, namely:
1. Where a Party is entitled to ‘Hearing Notice’ of proceedings and where there is failure to serve him, the failure goes to the root of the competence or jurisdiction of the Court to deal with the matter since in law service of process on a Defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or his counsel must be one of those fundamental conditions’ precedent required before the Court can have competence and jurisdiction.
2. ‘Hearing Notice’ being the only legal means and procedure to get a party to appear in Court, it must be properly served and thus improper or invalid service or no service of hearing notice at all renders such proceedings a nullity.
3. Where the failure of a party in a case to appear in Court is due to the failure to serve him a ‘Hearing Notice’, any judgment given in that circumstance will be one given without jurisdiction and being a nullity is liable to be set aside on appeal.
4. That by whatever other informal means a party was aware of the hearing dates of a case cannot and does not constitute a substitute for the necessity to serve him with a ‘Hearing Notice.
5. The issue of service of a ‘Hearing Notice’ on a party intimating him of the hearing date is very fundamental to the due administration of justice and its importance cannot be over emphasized as it is that service of the Hearing Notice that confers on the Court the jurisdiction to entertain the matter.

WHETHER OR NOT PARTIES CAN BE DENIED RIGHT TO FAIR AND FULL PARTICIPATION IN PROCEEDING WHERE NO FAULT IS ATTRIBUTED TO THE PARTIES

I must say that there is the utmost need for Courts to be fair and render equal treatment to the parties before it, more particularly in the observance of their right to fair and fully participate in the proceeding where no fault is attributable to them, including the right to cross examine witnesses for the other party, which is one of the hall mark of the adversarial system of administration of justice in this Country. Thus, it cannot be over emphasized that in law under the adversarial system of jurisprudence, which we operate in this country, the art of cross-examination is perhaps one of the greatest weapon to attack an adversary. It is thus very fundamental as it is the pivot, and indeed the central hub and gravity of the administration of both criminal and civil justice in Nigeria. system. This is so because it reinforces in very clear terms the application of the rule of natural justice of audi alteram partem, hearing the other party. Therefore, to without any just or legal or reasonable cause or reason, deny a party the right to cross examine his adversary and his witnesses would and indeed clearly amounts to denial of fair-hearing as enshrined in Section 36(1) of the 1999 Constitution of Nigeria. See Onwuka V. Owolewa (2001) 7 NWLR (Pt. 713) 695. See also Okogi V. Okoh (2010) 9 NWLR (Pt. 1199) 311. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

WHETHER A COURT OF LAW CAN DENY A PARTY HIS RIGHT TO FAIR HEARING ON ACCOUNT OF CONDUCT WITHOUT ANY LAWFUL JUSTIFICATION

Now, whether or not a party before the Court is an irritant or recalcitrant or even out-rightly annoying in his conducts, he is still entitled to the safe guards of the law put in place to ensure fair hearing to the citizen, such as service of hearing notice where the circumstance demands the service on him of a hearing notice or even fresh hearing notice, and no Court of law can on account of the conduct of a party deny him or abrogate his right to fair hearing without any lawful justification merely on the basis of his annoying and or recalcitrant or irritating conducts before the Court.
So also no matter how frustrating to expeditious hearing the conduct of a party may be and the amount of delays likely to be occasioned by such a party, yet no Court of law can abrogate or even deny such a party the right to be fairly heard in accordance with the due process of law in line with the Constitutional guarantee to right to fair hearing before a decision affecting his civil rights and obligation is reached by the Court. In law a proved breach of the right to fair hearing carries with it devastating consequences on both the proceedings, no matter how meticulous, and the judgment, no matter how sound, of the Court. It is thus better for Courts to err on the side of caution when it comes to the observance of the right to fair hearing as constitutionally guaranteed to the parties before the Courts. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

WHETHER OR NOT THE DECISION OF A COURT CAN BE SET ASIDE HAVING PROVED BREACH OF RIGHT TO FAIR HEARING

In law where there is a proved breach of the constitutionally guaranteed right to fair hearing of the parties, a decision reached thereby is both susceptible and liable to be set aside without much ado by an appellate Court if so called upon. This is so because the principles of fair hearing are not only fundamental to adjudication but also a constitutional requirement which cannot be legally wished away. It is indeed a fundamental right of universal application. See Agbapuonwu V. Agbapuonwu (1991) 1 NWLR (Pt. 165) 33 @ p. 40. See also J.O.E. Co. Ltd V. Skye Bank Plc (2009) 6 NWLR (Pt.1138) @ p. 518; Robert C. Okafor & Ors V. AG and Commissioner for Justice Anambra State (1991) 6 NWLR (Pt. 200) 659. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

WHETHER OR NOT THE BREACH OF RIGHT TO FAIR HEARING CAN RENDER A JUDGEMENT IN NULITY

My lords, the right to fair hearing is a Constitutional right intended by the framers of the Constitution for the safeguard of the citizen from being condemned or adjudged liable without being heard. It is so fundamental in law that the effect of its breach, as has been so profoundly pronounced upon by the Courts in a plethora of decided cases as are replete in the law reports, would almost invariably render such proceedings and resultant judgment a nullity. See Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt.1323) 276. See also Amadi V. INEC (2013) 4 NWLR (Pt.1345) 595; Ovunwo & Anor. V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522; Pan African Incorporation & Ors. V. Shoreline Lifeboat Ltd & Anor (2010) All FWLR (Pt. 524) 56; Action Congress of Nigeria V. Sule Lamido & Ors (2012) 8 NWLR (Pt.1303) 560 @ p.593; Judicial Service Commission of Cross River State & Anor V. Dr. (Mrs) Asari Young (2013) 11 NWLR (Pt.1364) 1. BIOBELE ABRAHAM GEORGEWILL, J.C.A.

THE PRINCIPLE OF “JUSTICE DELAYED IS JUSTICE DENIED” AND “JUSTICE RUSHED IS JUSTICE CRUSHED” ON THE BREACH OF PARTIES FUNDAMENTAL HUMAN RIGHT

Now, while it is true that “justice delayed is justice denied” yet it is also equally true that “justice rushed is justice crushed” and thus it would indeed be a travesty of justice for a Court not to properly and dispassionately hold the balance of justice between the two extremes of rushing or crushing justice. The most important thing is that at all times in proceedings before the Courts the enshrined constitutionally guaranteed rights of the citizen to fair hearing, to be fairly heard, before decision affecting his civil rights and obligations is reached, must be faithfully observed by the Courts. The right to be heard and for substantial justice to be done to the parties by the Courts cannot be sacrificed at the altar of speed. See Section 36 (1) of the Constitution of Nigeria 1999 (as amended) which provides as follows:
“In the determination of his civil rights and obligation, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
See also Abubakar V. Yar’Adua (2008) 4 NWLR (Pt. 1078) 468: p. 503, where the Supreme Court had stated inter alia as follows:
“…Courts of law cannot sacrifice the constitutional principle of fair hearing at the altar of speedy hearing of cases when the content of the speedy hearing is not in consonance with fair hearing ….Although the law is that speedy hearing is one vital and important aspect of fair hearing, speedy hearing of a case which denies a party access to pre – trial evidence, such as interrogatories, is not fair as it turns contrary to the Constitutional principle of fair hearing. In the instant case, the Court of Appeal was wrong in rejecting the application to administer interrogatories on the ground that it would impede speedy trial of the case.” BIOBELE ABRAHAM GEORGEWILL, J.C.A.

BIOBELE ABRAHAM GEORGEWILL, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Judgment of the High Court of Edo State, Coram: H. A. Courage – Ogbebor, in Suit No. B/133/2007: Ezediashi Ofili V. Mr. Okeke & Ors, delivered on 28/1/2010, wherein the Claims of the 1st Respondent as Claimant were granted against the Appellant as 3rd Defendant and the other Defendants in the said Suit.

The Appellant was pissed with the Judgment of the Court below and had appealed against it vide her Notice of Appeal filed on 12/4/2010 on five grounds of appeal at pages 148A – 148F of the Record of Appeal. The Record of Appeal was duly transmitted to this Court on 17/3/2014. On 4/3/2015, the Appellant was granted leave and filed her Amended Notice of Appeal on 16/3/2015 on six grounds of appeal. The Appellant’s brief was filed on 6/3/2017 but was deemed as properly filed on 22/10/2018. The 1st Respondent’s brief was filed on 15/11/2018. The Reply brief was filed on 3/12/2018. The 2nd and 3rd Respondents did not file any brief and the appeal proceeded to hearing on the Appellant’s brief and 1st Respondent’s brief only, with hearing notice served on 2nd and 3rd Respondents on 12/11/2020.

At the hearing of this appeal on 16/11/2020, Frank O. Ezekwueche Esq., learned counsel for the Appellant adopted the Appellant’s brief and Reply brief as his arguments in support of the appeal and urged the Court to allow the appeal and set aside the Judgment of the Court below. On his part, Peace Folorunsho Esq., learned counsel for the 1st Respondent adopted the 1st Respondent’s brief as his argument in opposition to the appeal and urged the Court to dismiss the Appeal for lacking in merit and affirm the Judgment of the Court below.

By a Writ of Summon filed on…, the 1st Respondent as Claimant claimed against the Appellant as 3rd Defendant and other Defendants the following reliefs, namely:
The 1st Respondent at the trial Court filed an action vide Amended Statement of Claim suing the Appellant and 2nd Respondent praying for the following reliefs:
1. A declaration that the Plaintiff is the rightful owner of ALL THAT piece or parcel of land measuring 200 feet by 100 feet and covering an Area of approximately 2173.99 square yard, lying and situate at Ekosodin, Benin City more particularly marked and delineated in Survey Plan No. OSA/77BD6362 attached to the Certificate of Occupancy No. BDSR606 dated 7/2/81 Registry in the office at Benin City granted to the Plaintiff by the then Executive Governor of Edo State Prof. A. AlIi.
2. The sum of N500,000 being general damages for Trespass, without the authority and/or authority of the Plaintiff piece of land measuring 200 feet by 100 feet and situate at Ekosodin, Benin City.
3. An order of perpetual injunction restraining the Defendants, their heirs, assigns, privies, servants and/or agents from further or any other form of trespass or interfering or meddling with the Plaintiff s proprietary right over the land. See pages 20-23 of the Record of Appeal.

In response, the Appellant as 3rd Defendant counter claimed against the 1st Respondent as Claimant as follows:
1. An Order of the Court setting aside the Certificate of Occupancy No. BDSR 606 dated 7/2/1981 issued in favor of Mr. Ezediashi Offili, the Plaintiff. See pages28 – 33 of the Record of Appeal

BRIEF STATEMENT OF FACTS
By an Amended Statement of Claim the 1st Respondent as Claimant before the Court below claimed a declaration of title as the rightful owner of all that piece of land measuring 200 feet by 100 feet and covering an area of approximately 2173.88 square yards lying and situate at Ekosodin, Benin City more particularly marked and delineated in Survey Plan OSA/77BD6362 attached to the certificate of occupancy No. BDSR 606 dated 7/2/81 Registry (sic) in the office at Benin City on the strength of a grant by the Oba of Benin to his predecessor in title as in Exhibit P3, coupled with a subsequent grant to him by the then Executive Governor of Edo State, Prof A. Ali. He also claimed the sum of N500, 000 as damages for trespass upon the land against the 2ndRespondent and the Appellant herein. The 1st Respondent as Plaintiff further claimed an order of perpetual injunction restraining them, their heirs, assigns, privies, servants and/or agent from further or any other form of trespass or interfering or meddling with the Plaintiff/1st Respondent’s proprietary right over the Land. By her Statement of Defense and Counter Claim the Appellant denied the claims of the 1st Respondent and counter claimed for the setting aside of the Certificate of Occupancy granted to the 1st Respondent.

The parties filed and exchanged pleadings vide Amended Statement of Claim. The 1st Respondent called four witnesses who testified as Mr. Ezediashi Ofili, the Claimant, PW1, one Mr Chukwuka Odogwu, PW2, one Austin Joel Esebamen Remison and PW3, one Mr. Joseph Eko Eferaro Ukpedor and tendered several documents admitted in evidence as Exhibits and closed his case. In her defense, the Appellant called only one witness, herself as DW2 and tendered some documents admitted in evidence as Exhibits and closed her case. At the commencement of the case before the Court below, it was the 1st Respondent and the other Defendants that filed and exchanged their pleadings and the matter proceeded to trial until after all the witnesses for the 1st Respondent had testified before the Appellant was granted leave to file her defense to the claims of the 1st Respondent but was however refused leave to recall the witnesses of the 1st Respondent for the purposes of their cross examination. These witnesses had earlier testified before the Appellant obtained the leave of the Court below to file her pleadings. However, at the close of the case of the 1st Respondent as Claimant, the Appellant gave evidence in support of her pleadings.

At the trial before the Court below, several documents were tendered by the parties and admitted in evidence as follows: Exhibit P1, Receipt dated 7/3/77; P2, Letter dated 20/3/77; P3, Oba’s Approval dated 17/4/77; P4, Certificate of Occupancy No.BDSA606; P5, Receipt No. AOO1699717; P6, Certificate of Occupancy BDSA1281; P7, Certificate of Occupancy BDSA1281; P8, Plan No. ISO/ED/D018/2007; P9, Subpoena; P10, Oba’s Approval dated 17/4/72; P11, Plan No. ISO/BD/457/82; D1, Oba Approval dated 2/5/71; D2, Agreement dated 10/5/76; D3, Deed of Assignment dated 6/11/08; D3A, Revenue collector receipt 10/9/09; D4, Plan SEA/ED/D101/2008.

At the close of the respective cases of the parties, their counsel filed and exchanged written addresses which were subsequently adopted by them. On 28/1/2010, the Court below delivered its judgment, in which it granted the claims of the 1st Respondent against the Appellant, while dismissing her counter claim, hence this appeal. See pages 20 – 23, 28 – 33, 34 – 47, 55 – 57, 48 – 54, 116 – 147, 148 of the Record of Appeal.

ISSUES FOR DETERMINATION
In the Appellant’s brief, five issues were distilled as arising for determination from the six grounds of appeal, namely:
1. Whether having regard to the state of the pleadings of the parties and the totality of evidence adduced particularly the contradictions in the Plaintiff’s/1st Respondent’s root of title (Exhibits P3 & P10), the Court below was right in holding that the 1st Respondent/Plaintiff established the title of his Vendor, Johnson Edobor in respect of the said land in dispute? (Distilled from Ground 1)
2. Whether the Learned Trial Judge was right in law in holding that the 1st Respondent was entitled to a grant of Exhibit P4 (certificate of occupancy) when the 1st Respondent did not discharge the burden of proving that the Land in dispute was vested in him before the commencement of the Land Use Act 1978. (Distilled from Ground 2)
3. Whether the Learned trial Judge was right in holding suo motu in respect of Exhibit P3 that “as at the time the action was filed in 2007, Exhibit P3 tendered by the Plaintiff/1st Respondent was 35 years old and by virtue of Section 123 of the Evidence Act as held in the case of Ogbahon v. Reg. Trustees Of C.C.C. (2002) 1 NWLR Pt 749) 675@ 684 R.12, “a document of twenty years old and produced from proper custody are accorded due execution or attestation and thereby authentic” without affording parties the opportunity to address the Court on such a weighty issue upon which the judgment turned?” (Distilled from Ground 4)
4. Whether having regard to the totality of the evidence adduced before the Court, the Learned Trial Judge’s judgment that the 1st Respondent/Plaintiff proved a better title than the 2nd Respondent and the Appellant is not against the weight of evidence? (Distilled from Ground 5)
5. Whether the failure by the Honourable Court to issue and serve hearing notices on the Appellant on the diverse dates the suit came up for hearing before the Plaintiff/1st Respondent closed his case on 27/6/2008 and the refusal of the Motion filed by the Appellant dated the 6th day of November 2008 for the recall of the Plaintiff/1st Respondent and some of his witnesses for cross-examination did not breach the 2nd Appellant’s fundamental right to fair hearing? (Distilled from Grounds 3 and 6)

In the Respondent’s brief, two issues were distilled as arising for determination in this appeal, namely:
1. Whether having regard ‘to the pleadings of the parties and the totality of the evidence adduced before the trial Court, the Learned trial Judge was right to have entered Judgment in favor of the 1st Respondent?
2. Whether the refusal of the application brought by the Appellant for the recall of 1st Respondent and some of his witnesses for cross – examination is tantamount to breach of fundamental rights to fair hearing of the Appellant?

I have given due considerations to the pleadings as to the issues joined therein and the evidence, both oral and documentary led by parties as in the printed record. I have also calmly reviewed the submissions of counsel in their respective briefs in the light of the findings in the Judgment of the Court below appealed against and it does appear to me that the five issues as distilled in the Appellant’s brief are very apt as the proper issues arising for determination in this appeal, a consideration of which, in my view, would invariably involve a due consideration of the two issues as distilled in the Respondent’s brief.

My lords, I shall consider these five issues in the following manner; Appellant’s issues one, two and four shall be considered together with 1st Respondent’s issue one; Appellant’s issue three shall be considered on its own, while Appellant’s issue five shall be considered together with 1st Respondent’s issue two.

However, since Appellant’s issue 5, taken together with the 1st Respondent’s issue 2, deals with the fundamental issue of fair hearing. I shall consider and resolve it first one way or the other before if need be, in the event that if it is resolved against the Appellant then I shall proceed to consider the other four issues, but in the event that if it is resolved in favor of the Appellant, then that would be the end of the matter as there would then be no need to proceed further to consider the other four issues. In the circumstances therefore, I hereby proceed anon to consider the Appellant’s issue 5.

ISSUE FIVE
“Whether the failure by the Honourable Court to issue and serve hearing notices on the Appellant on the diverse dates the suit came up for hearing before the Plaintiff/1st Respondent closed his case on 27/6/2008 and the refusal of the Motion filed by the Appellant dated the 6th day of November 2008 for the recall of the Plaintiff/1st Respondent and some of his witnesses for cross-examination did not breach the 2nd Appellant’s fundamental right to fair hearing?”

APPELLANT’S COUNSEL SUBMISSIONS
On issue five, learned Counsel for the Appellant had submitted that the Appellant was served with the Originating processes of the 1st Respondent by means of substituted service vide pasting on the shops already built on the land in dispute but the Appellant had consistently and resolutely maintained that she only became aware of the pendency of the Suit sometime in September 2008 through the 2nd Defendant’s message and contended that the Court below was in law wrong to have proceeded with the trial of the Suit on 19/5/2008, 20/6/2008 and 27/6/2008 when all the witnesses for the 1st Respondent testified without the prior service of any hearing notice on the Appellant as required by law and urged the Court to hold that the Court below brazenly breached the Appellant’s right to fair hearing thus rendering the entire proceedings and judgment of the Court below a nullity and liable to be set aside and to allow the appeal and set aside the judgment of the Court below.

It was also submitted the Court below had not acted impartially as required by law when in granting the application by the Appellant for leave to file her pleadings and to recall the 1st Respondent’s witness who had earlier testified for the purposes of their cross examination by her Counsel. The Court merely granted her the leave to file her pleadings while refusing her the further leave sought to recall the witnesses for the 1st Respondent for cross examination, while extending similar leave to the 2nd Defendant to recall the PW3 for the purpose of further cross examination and thereby shutting out the Appellant from full participation in the proceedings and contended that in law such a proceeding skewed against the interest of fair hearing for the Appellant is one liable to be set aside and urged the Court to so hold and to allow the appeal and set aside the judgment of the Court below arrived at in breach of the Appellant’s right to impartial administration of justice which the Court below brazenly denied to her in its conduct of its proceedings leading to the judgment appealed against.

It was further submitted that the Court below did not at any time ordered the issuance and service of any hearing notice on the Appellant on any of the subsequent hearing dates to apprise her of the hearing as required by law and contended that in law the entire proceedings of the Court below in the Suit up till the date that the 1st Respondent closed his case was conducted in breach of the Appellant’s right to fair hearing having not been served with any hearing notice and urged the Court to hold that the conduct of the proceedings in which all the witnesses for the 1st Respondent testified at the back of the Appellant due to no fault of hers was unconstitutional being in breach of the Appellant’s right to fair hearing and thus amounting in law to a sheer nullity and should be set aside. Counsel referred to Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria and relied on Leedo Presidential Motel V. BON Ltd (1998) 10 NWLR (Pt. 570) 353; Auto Import Export V. Adebayo (2002) 18 NWLR (Pt. 799) 554; Onwuka V. Owolewa (2001) 7 NWLR (Pt. 713) 695; P. N. Emerah & Sons Nig. Ltd V. Dunu (1998) 9 NWLR (Pt. 564) 86; Scott-Emuokpor V. Ukavbe (1975) 12 SC 41; Agena V. Katseen (1998) 3 NWLR (Pt. 543) 560; Okoroafor & Ors V. Chukwunyere Ezuka & Ors (1994) 8 NWLR (Pt. 364) 535; Sken Consult (Nig) Ltd V. Ukey (1981) 1 SC 6; Okogi V. Okoh (2010) 9 NWLR (Pt. 1199) 311.

1ST RESPONDENT’S COUNSEL SUBMISSIONS
On his issue two, learned Counsel for the 1st Respondent had submitted that the Appellant was duly served with the Originating processes and very much aware of the 1st Respondent’s Suit but deliberately refused to attend the Court below to participate in the proceedings because according to her, the 1st Respondent wrongly spelt her name on the Writ of Summons and contended that in the circumstances the Court below was right when it refused the leave sought by the Appellant to recall the 1st Respondent’s witnesses for the purposes of their cross examination since it was merely meant to delay the expeditious hearing and determination of the 1st Respondent’s Suit and was for no useful purpose and urged the Court to hold that the refusal of leave to recall the 1st Respondent’s witnesses did not amount in any way to any denial of the Appellant’s right to fair hearing, she having deliberately refused to attend and participate in the proceedings of the Court below despite having been duly served with all the processes in the 1st Respondent’s Suit.

It was also submitted that in law 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 a Suit, whether the Claimant or the Defendant and contended that the doctrine of the right to fair hearing is to the effect that parties be given equal opportunity to present their case and no party should be given more opportunity in presenting their case and urged the Court to hold that the Appellant was afforded ample opportunity to come to the Court below to present her case but she deliberately chose to absent herself from the proceedings before the Court below and to resolve issue five against the Appellant in favor of the 1st Respondent. Counsel relied on Barr. Mrs. Amanda Peters Pam & Anor V. Nasiru Mohammed & Anor (2008) 16 NWLR (Pt. 1112) 1; Prince Abubakar Audu V. FRN (2013) 5 NWLR (Pt. 1348) 397; Hon Muyiwa Inakoju & Ors V. Hon Abraham Adeolu & Anor (2007) 143 LRCN 1.

It was further submitted that the fundamental right to fair hearing of the Appellant was never breached by the Court below and contended that in law a party who had the opportunity to attend the proceedings of a Court but chose to stay away cannot turn around to claim the denial of the right to fair hearing and urged the Court to hold that the Appellant who had all the opportunity to attend and participate in the entire proceedings of the Court below leading to the delivery of the Judgment appealed against but had on her own volition choose to stay away from the proceedings until when she sought and obtained the leave of the Court below to file her pleadings and since justice is a two way traffic to both parties she cannot now turn round to baselessly allege a denial of her right to fair hearing by the Court below, an allegation which had remained unproved and to resolve issue five against the Appellant in favor of the 1st Respondent. Counsel relied on Charles C. Ikechi Okike V. LPDC & 2 Ors (2006) 1 NWLR (Pt. 960) 67; Josiah V. The State (1985) 1 NWLR (Pt. 11) 125; Kalu V. The State (1988) NWLR (Pt. 90) 503; Okomu Oil Palm Ltd V. Mr. O.J. Okpame (2006) LPELR-CA/B/4/2001.

APPELLANT’S COUNSEL REPLY SUBMISSIONS
In his reply on law, learned counsel for the Appellant reiterated his earlier submissions and had submitted further that there was evidence before the Court below that the Appellant was ordinarily resident in Lagos and did not get wind of the substituted service of the Court processes on time and contended that the submission that the Appellant was aware of the 1st Respondent’s Suit but deliberately stayed away from the proceedings before the Court below was misconceived and lacking in substance and urged the Court to discountenance same and to hold that the entire trial before the Court below fell far short of the prescribed standards to guarantee the parties right to fair hearing and to allow the appeal and set aside the null proceedings and Judgment of the Court below.

RESOLUTION OF ISSUE FIVE
My lords, issue five deals squarely with the question whether or not the proceedings of the Court below conducted on 19/5/2008, 20/6/2008 and 27/6/2008 when all the witnesses for the 1st Respondent testified in the absence of the Appellant and the subsequent Judgment it delivered on 28/1/2010 amounted to a breach of the constitutionally guaranteed right to fair hearing of the Appellant as alleged by the Appellant or amounted to no breach at all of the Appellant’s right to fair hearing as contended by the 1st Respondent?

My lords, there can be no doubt that fair hearing, which in most cases is synonymous with fair trial and natural justice, is an issue which is clearly at the heart and threshold of our legal system and thus once it is shown that there has been a denial of fair hearing as guaranteed by the Constitution, the whole proceedings automatically becomes vitiated. A denial of fair hearing can ensure from either the conduct of the proceedings and or the decisions of the Court in the hearing of a case.

The gravamen of the complaint of the Appellant under issue five is the failure of service of hearing notice for the proceedings of 19/5/2008, 20/6/2008 and 27/6/2008 when all the witnesses for the 1st Respondent testified and were discharged from the witness stand and in addition the refusal of the Court below to grant leave to the Appellant to recall these witnesses for the purposes of their cross examination by the Appellant’s counsel on the ground that the Appellant deliberately stayed away from proceedings despite having been served with all the processes of the 1st Respondent, while at the same time granting leave to the counsel for the 1st Defendant to recall a witness whom he had earlier cross examined for the purposes of further cross examination.

Having averted my mind to some of the general principles of law on the issue of fair hearing, let me now proceed to consider the facts of this case as can be gleaned from the Record of Appeal of the proceedings before the Court below to scrutinize to see whether the facts fit the bill of denial of fair hearing as vehemently alleged by the Appellant but stoutly denied by the 1st Respondent. These are what transpired before the Court below in this case leading to the subsequent delivery of its judgment on 28/1/2010.

The Appellant was duly served with the Originating processes and pleadings of the 1st Respondent by pasting on the shops on the land in dispute by a Bailiff of the Court below pursuant to a valid and subsisting Order for substituted service made to that effect by the Court below. Subsequently, by an application filed before the Court below, the Appellant as 3rd Defendant had sought the following reliefs:
1. AN Order granting leave to the 3rd Defendant to enter appearance in this Suit out of time.
2. An Order of the Court extending the time within which the 3rd Defendant/Applicant may file and serve her Statement of Defense in this action.
3. An Order of the Court deeming as properly filed and served the 3rd Defendant’s Statement of Defense.
4. An Order of the Court granting leave to the 3rd Defendant/Applicant to recall the Plaintiff (Mr Ezediashi Ofili); PW1 (Mr Chukwuka Odogwu) and PW3 Mr Joseph Eko Eferaro Ukpedor for cross-examination by the 3rd Defendant. See page 33F of the Record of Appeal.

In its wisdom, the Court below had after hearing both parties through their counsel granted only reliefs 1, 2, and 3 to the Appellant while refusing relief 4 by which the Appellant who had just been granted leave to file her pleadings had sought the further leave of the Court below to recall the four witnesses that had earlier in the proceedings testified for the 1st Respondent for the purposes of cross examining them. The Appellant was thereby unable to cross examine these witnesses and had to proceed to open her defense.

Now, earlier on 19/5/2008, the 1st Respondent and the 2nd Defendant were present before the Court below when the 1st Respondent’s Suit came up for hearing. The Appellant was absent and not represented by counsel. One E. Okojie Esq for the 1st Respondent as Claimant, while one I.J. Ogbuku with O.L. Odigie (Miss) for the 2nd Defendant. The counsel for the 1st Respondent, Okojie Esq., had proceeded to inform the Court below that they were ready to go on with the hearing of the Suit and the Court below then proceeded to the commencement of the case of the 1st Respondent by taking the evidence of the 1st Respondent, who was subsequently discharged from the witness stand at the conclusion of his evidence in chief and cross examination by the 2nd Defendant’s counsel. The Court below later adjourned the 1st Respondent’s case to 20/6/2008 for further hearing.

On 20/6/2008, the 1st Respondent and the 2nd Defendant were present and represented by counsel but the Appellant was absent and was not represented by counsel. The next witness for the 1st Respondent testified in chief and was partly cross examined by the 2nd Defendant’s counsel and the matter was adjourned to the 27/6/2007 for continuation of cross examination. On 27/6/2008, the 1st Respondent and the 2nd Defendant were present and represented by counsel but the Appellant was absent and was not presented by counsel. The PW3 was further cross examined by the 2nd Defendant’s counsel and discharged from the witness stand. The next witness PW4 then testified in chief and was cross examined by the 2nd Defendant’s counsel and was discharged from the witness stand. The case of the 1st Respondent was then closed and the matter was adjourned to 28/7/2008 for Defense by the 2nd Defendant. On 2/2/2009, the 1st Respondent and the 2nd Defendant were present but the Appellant was absent but represented by counsel, one F. Ezekwueohe Esq. , who argued the Appellant’s application for leave to file her pleadings and for further leave to recall the witness of the of the 1st Respondent for the purposes of cross examining them. The relief of leave to recall the witnesses of the 1st Respondent was stoutly opposed and on 20/2/2009 was upheld by the Court below in its considered ruling, while leave was granted to the Appellant to file her pleadings. The matter was then adjourned to 5/3/2009 for continuation of hearing. On 25/3/2009, only the 2nd Defendant was present but all the parties were represented by counsel. The PW3 was recalled for cross examination by the 2nd Defendant’s counsel and finally discharged from the witness stand. The matter was then adjourned to 29/4/2009 for defence.

My lords, the above were all that transpired before the Court below on 19/5/2008, 20/6/2008 and 27/6/2008 when all the witnesses for the 1st Respondent testified and were discharged from the witness stand in the absence of the Appellant, who was the 3rd Defendant. See 34 – 46 page of the Record of Appeal.

Now, the question arising from the above undisputed facts of the proceedings and circumstances before the Court below is namely this: Are the proceedings with any proof of service of hearing notice on the Appellant? Does the service of a Writ of Summons and pleadings in a Suit on a Defendant, such as the Appellant, obviate the need for further service of hearing notice when a matter is eventually fixed for hearing? How is the service of hearing notice proved? Does failure to serve hearing notice on a party before the hearing of the substantive Suit against such a party, such as the Appellant, amounts to a breach of the right to fair hearing of the Appellant? In other words, and simply put: was the Appellant put on notice or was she so entitled to be put on notice by way of hearing notice or fresh hearing as to the hearing of the 1st Respondent’s Suit against her on?

In order to answer the above simple question in this appeal, I have taken time to meticulously scan through the entirety of the printed records and the entire submissions of the counsel to the parties to see if there was any hearing notice served on the Appellant for the hearings on the dates of 19/5/2008, 20/6/2008 and 27/6/2008 as fixed and further adjourned by the Court below and during which proceedings all the witnesses to the 1st Respondent testified and were cross examined by counsel for the 2nd Defendant and discharged from the witness stand in the absence of the Appellant and or her counsel.

I have scanned through the entirety of the processes served on the Appellant in this Suit and the entire proceedings of the dates of 19/5/2008, 20/6/2008 and 27/6/2008 when all the witnesses for the 1st Respondent testified and were discharged from the witness stand and I cannot find or see any hearing notice being issued and or served on the Appellant for the hearing on all these dates on which the 1st Respondent’s witnesses testified.

I have also carefully gone through the entire proceedings of the Court below on those relevant dates of 19/5/2008, 20/6/2008 and 27/6/2008 for hearing and further or continuation of hearing of the case of the 1st Respondent as Claimant and I cannot find or see any endorsement indicating the satisfaction of the Court below of any service of any hearing notice on the Appellant before proceeding to take the evidence of the 1st Respondent’s witnesses and even discharging them from the witness stand without even an opportunity of an adjournment for the purposes of their cross examination by the Appellant in the interest of justice and fairness with a hearing notice or fresh hearing notice issued and served on the Appellant to that effect. Worse still, I have also taken time to review the submissions of counsel for the 1st Respondent in this appeal and there is no where it was pointed out that any hearing notice was ever served on the Appellant on any of those dates 19/5/2008, 20/6/2008 and 27/6/2008 for the hearing of the 1st Respondent’s case.
In the circumstances therefore, I find as fact the Appellant was never served with any hearing notice on all or any of the dates of 19/5/2008, 20/6/2008 and 27/6/2008 when all the witnesses for the 1st Respondent testified and were discharged from the witness stand by the Court below.
So, were the proceedings of the Court below on 19/5/2008, 20/6/2008 and 27/6/2008 lacking in the Constitutional requirement of fair hearing to the Appellant, being a party to the 1st Respondent’s Suit before any decision affecting her was reached by the Court below? In other words, was the Appellant entitled to hearing notice against the date of 19/5/2008 and or fresh hearing notices against the dates of 20/6/2008 and 27/6/2008 when all the witnesses for the 1st Respondent testified and were discharged from the witness stand?
Furthermore, was it fair and proper for the Court below not only to proceed to the hearing of all the witnesses of the 1st Respondent and discharging them from the witness stand without the participation of the Appellant, who was not served with any hearing notice of those dates? Was the Appellant fairly heard or given the opportunity to be fairly heard before the decision affecting her civil rights and obligation was reached in the judgment delivered by the Court below on 28/1/2010? When and how should a Court of law draw the line and maintain the balance between the need for expeditious determination of matters before it within a reasonable time and the due observance of the Constitutional rights of the parties to be fairly heard before decisions affecting their civil rights and obligations are reached by the Court?
However, the 1st Respondent, the 2nd Defendant and the Appellant led evidence and tendered several documents which were admitted in evidence as Exhibits and upon the strength of which the Court below had in its judgment delivered 28/1/2010, while granting the claims of the 1st Respondent as Claimant against the Appellant as 3rd Defendant and dismissing the counter claim of the Appellant against the 1st Respondent held inter alia thus:
“The Defendants were served with the writ and statement of claim and the 1st and 4th Defendants did not enter appearance and they did not file any statement of Defence. The 2nd Defendant filed his statement of Defence and also a counterclaim. The 3rd Defendant also claimed in her counterclaim…. The Defence thereafter opened D.W.1 is 2nd defendant himself …There was no cross-examination by the 3rd Defendant. DW2 is Samuel Aimufua…There was no cross-examination by 3rd Defendant’s Counsel. DW3 is Henry Ediagbonva… There was no cross examination by 3rd defendant. The 2nd Defendant closed his case and 3rd Defendant opened her Defence. The 3rd Defendant Victoria Shola testified for herself. ….. PW3 Under cross-examination P.W.3 stated that exhibit P11 relates to the land in dispute, but I do not believe that piece of evidence…I have perused the plan prepared in 1977 and attached to the Certificate of Occupancy, exhibit P4, and Exhibit P8, the litigation survey plan of the Plaintiff, the beacons numbers are the same. P.W.3 could not have surveyed the same land in 1982 and planted pillars, in that the pillars or survey beacons done in 1977 are still there. He definitely surveyed a different land in Exhibit P11 which is dated 28th of November, 1982. I therefore hold that the land in dispute is different from the land indicated in Exhibit P11, even though D.W.2 stated that he acted as pointer when the land was granted to 2nd defendant’s predecessor in title, I do not believe him. The plaintiff tendered exhibit P3 the Oba’s approval approved on the 17th of April 1972 by the Oba of Benin., as at the time the action was filed in 2007 the said exhibit P3 was about 35 years old. By virtue of Section 123 of the Evidence Act… a document twenty years old and produced from proper custody are accorded due execution or attestation and thereby authentic. I therefore hold that the Oba’s approval is authentic and executed by the proper authorities. In that regard, the title of Johnson Edobor, the Plaintiffs predecessor in title is proved under customary law as the Oba’s approval was tendered…. From the evidence adduced before Court and the analysis above, I am satisfied that the plaintiff was in occupation of the land and he had a better right to the grant….I am satisfied with the evidence that the plaintiff has been in possession since 1977 and the Court will not disturb long and undisturbed possession, even in favour of the real owner by native law and custom …The 2nd and 3rd Defendants filed counter claims each against the plaintiff ….The 3rd Defendant also by an application dated 6th day of November 2008 but filed on the 7th of November 2008 applied for an order for leave to file her statement of defence out of time and he said order was granted. She did not ask for extension of time to file her counterclaim which she also smuggled in and she did not pay for it. The endorsement on the Motions by which the Defendants sought for leave to file their pleadings out of time do not show that filing fees were paid for the counterclaim. It is the law that payment of the prescribed filing fees is a condition precedent to the filing of a valid claim. It is the primary responsibility of a party to pay the appropriate or adequate filing fees prescribed in the rules as a condition precedent for the exercise of jurisdiction, where such a condition is not satisfied the jurisdiction of the Court does not rest or it is ousted. Failure to comply can be fatal because any suit brought in contravention of or without compliance with the rules of Court on payment of filing fees is incompetent and the Court is equally incompetent to entertain or hear same. It is therefore not a mere irregularity which is curable. Neglect to pay filing fees in respect of each relief sought before a trial vitiates the claim in respect of which no filing fees had been paid…Even if that relief had been proved the relief would have failed as this Court had no jurisdiction to entertain the counterclaim. On the totality of the evidence before me….the law ascribes possession to the party with the better title. I am of the firm view that the plaintiff has proved the better title….The plaintiff has proved long acts of possession, having been in possession since 1977, there is evidence before Court that he buried his niece who died in 1981 on the land, he made a wall fence on the land and also put some trips of sand there. The Defendants are therefore in trespass in that the defendants broke and entered the land… In conclusion I am satisfied that the plaintiff has proved that he is entitled to the land in dispute and he is entitled to judgment.” See pages 116 – 147 of the Record of Appeal
My lords, a calm reading of the plethora of decided authorities on the prime place of the issue and service of hearing notice process in the litigation processes in our Courts, in line with the requirements of the sacrosanct provisions of the Constitution of Nigeria 1999 (as amended) readily reveals the following well settled position of the law, namely:
1. Where a Party is entitled to ‘Hearing Notice’ of proceedings and where there is failure to serve him, the failure goes to the root of the competence or jurisdiction of the Court to deal with the matter since in law service of process on a Defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or his counsel must be one of those fundamental conditions precedent required before the Court can have competence and jurisdiction.
2. ‘Hearing Notice’ being the only legal means and procedure to get a party to appear in Court, it must be properly served and thus improper or invalid service or no service of hearing notice at all renders such proceedings a nullity.
3. Where the failure of a party in a case to appear in Court is due to the failure to serve him a ‘Hearing Notice’, any judgment given in that circumstance will be one given without jurisdiction and being a nullity is liable to be set aside on appeal.
4. That by whatever other informal means a party was aware of the hearing dates of a case cannot and does not constitute a substitute for the necessity to serve him with a ‘Hearing Notice.
5. The issue of service of a ‘Hearing Notice’ on a party intimating him of the hearing date is very fundamental to the due administration of justice and its importance cannot be over emphasized as it is that service of the Hearing Notice that confers on the Court the jurisdiction to entertain the matter.

6. Thus, whenever a matter comes up before a Court of law for hearing, it is the duty of the Court to truly and fully satisfy itself that a party to the case was duly served and is aware that the matter is coming up before the Court that day. More importantly, therefore, it is not for the Court, trial or appellate, to assume that the party having been duly served with the Court processes in the matter should be aware of the hearing date.
See Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria; Leedo Presidential Motel V. BON Ltd (1998) 10 NWLR (Pt. 570) 353; Auto Import Export V. Adebayo (2002) 18 NWLR (Pt. 799) 554; Onwuka V. Owolewa (2001) 7 NWLR (Pt. 713) 695; P. N. Emerah & Sons Nig. Ltd V. Dunu (1998) 9 NWLR (Pt. 564) 86; Scott-Emuokpor V. Ukavbe (1975) 12 SC 41; Agena V. Katseen (1998) 3 NWLR (Pt. 543) 560; Okoroafor & Ors V. Chukwunyere Ezuka & Ors (1994) 8 NWLR (Pt. 364) 535; Sken Consult (Nig) Ltd V. Ukey (1981) 1 SC 6.
My lords, in the instant appeal not only was the Appellant not served with any hearing notice of all or any of the dates of 19/5/2008, 20/6/2008 and 27/6/2008 when all the witnesses for the 1st Respondent testified and were discharged from the witness stand by the Court below, the Appellant was further denied by the Court below, and without any just or reasonable cause or basis, the opportunity which she sought to cross examine the witnesses of the 1st Respondent. It therefore, seems very clear to me and I so hold that the refusal of leave to the Appellant by the Court below to recall the witnesses of the 1st Respondent, who had all testified in her absence due to no fault of her but for the non service of any hearing notice on her, for the purposes of their cross examination, a right extended which was even to the 2nd Defendant in the same case by the same Court below, was clearly an act amounting to travesty of justice and a brazen breach of the Appellant’s right to fair hearing as constitutional guaranteed to her by the Constitution of Nigeria 1999 (as amended). It is a right which is so sacrosanct that it cannot in any manner be abrogated in a Constitutional democracy such as ours by any Court of law. It can, at worst, only be derogated from in accordance with the due process of law. I must say that there is the utmost need for Courts to be fair and render equal treatment to the parties before it, more particularly in the observance of their right to fair and fully participate in the proceeding where no fault is attributable to them, including the right to cross examine witnesses for the other party, which is one of the hall mark of the adversarial system of administration of justice in this Country. Thus, it cannot be over emphasized that in law under the adversarial system of jurisprudence, which we operate in this country, the art of cross-examination is perhaps one of the greatest weapon to attack an adversary. It is thus very fundamental as it is the pivot, and indeed the central hub and gravity of the administration of both criminal and civil justice in Nigeria. system. This is so because it reinforces in very clear terms the application of the rule of natural justice of audi alteram partem, hearing the other party. Therefore, to without any just or legal or reasonable cause or reason, deny a party the right to cross examine his adversary and his witnesses would and indeed clearly amounts to denial of fair-hearing as enshrined in Section 36(1) of the 1999 Constitution of Nigeria. See Onwuka V. Owolewa (2001) 7 NWLR (Pt. 713) 695. See also Okogi V. Okoh (2010) 9 NWLR (Pt. 1199) 311.
The Court below having fixed the 1st Respondent’s case for hearing on 19/5/2008 and on the other subsequent days of 20/6/2008 and 27/6/2008 in the absence of the Appellant, was under a duty not only to issue hearing notice of these dates for service on the Appellant but also to ascertain and satisfy itself on the dates fixed for the hearing of the 1st Respondent’s case that the hearing notice so issued has been duly served on the Appellant before proceeding to hear the testimonies of witness of the 1st Respondent against the interest of the Appellant.
Regrettably, the Court below took none of these vital steps to ensure the impartiality of its proceedings and thereby acted in utter breach of the constitutionally guaranteed right of the Appellant to fair hearing when it proceeded to hear the evidence of the 1st Respondent’s witnesses in the absence of the Appellant and no justification whatsoever has been shown in this appeal for such brazen breach of the constitutional right of the Appellant to fair hearing in any cause or matter in which decision affecting her civil rights and obligations were likely, such as in the 1st Respondent’s Suit before the Court below.
Now, whether or not a party before the Court is an irritant or recalcitrant or even out-rightly annoying in his conducts, he is still entitled to the safe guards of the law put in place to ensure fair hearing to the citizen, such as service of hearing notice where the circumstance demands the service on him of a hearing notice or even fresh hearing notice, and no Court of law can on account of the conduct of a party deny him or abrogate his right to fair hearing without any lawful justification merely on the basis of his annoying and or recalcitrant or irritating conducts before the Court.
So also no matter how frustrating to expeditious hearing the conduct of a party may be and the amount of delays likely to be occasioned by such a party, yet no Court of law can abrogate or even deny such a party the right to be fairly heard in accordance with the due process of law in line with the Constitutional guarantee to right to fair hearing before a decision affecting his civil rights and obligation is reached by the Court. In law a proved breach of the right to fair hearing carries with it devastating consequences on both the proceedings, no matter how meticulous, and the judgment, no matter how sound, of the Court. It is thus better for Courts to err on the side of caution when it comes to the observance of the right to fair hearing as constitutionally guaranteed to the parties before the Courts.
In law where there is a proved breach of the constitutionally guaranteed right to fair hearing of the parties, a decision reached thereby is both susceptible and liable to be set aside without much ado by an appellate Court if so called upon. This is so because the principles of fair hearing are not only fundamental to adjudication but also a constitutional requirement which cannot be legally wished away. It is indeed a fundamental right of universal application. See Agbapuonwu V. Agbapuonwu (1991) 1 NWLR (Pt. 165) 33 @ p. 40. See also J.O.E. Co. Ltd V. Skye Bank Plc (2009) 6 NWLR (Pt.1138) @ p. 518; Robert C. Okafor & Ors V. AG and Commissioner for Justice Anambra State (1991) 6 NWLR (Pt. 200) 659. My lords, having considered the totality of the circumstances of this appeal as revealed in the printed record of all that transpired before the Court below on the dates of 19/5/2008, 20/6/2008 and 27/6/2008 leading to the taking of the evidence of the witnesses to the 1st Respondent in the absence of the Appellant and the subsequent judgment of the Court below on 28/1/2010, I find as fact that the entire proceedings of the Court below were completely skewed in obvious and unpretentious favor of the 1st Respondent without the slightest consideration for the equal right to fair hearing of the Appellant, to be serve with at least a hearing notice. Thus, her entitlement to justice was so flagrantly breached by the Court below.
I agree that it was possible that the Court below might have become exasperated by the conduct of the Appellant in her alleged refusal to attend the proceedings of the Court below after due service of the Writ of Summons and pleadings of the 1st Respondent on her, yet in law that does not obviate the need for the observance of the Appellant’s right to fair hearing by the due service of hearing notice or where necessary even fresh hearing notice on the Appellant in the circumstances of this case. I therefore, find the entire proceedings of the Court below on the dates of 19/5/2008, 20/6/2008 and 27/6/2008 when all the witnesses for the 1st Respondent testified and were discharged from the witness stand by the Court below as completely unfair, oppressive and inimical to the interest of even handed justice to which both parties were entitled as of right from the Court below.
In law, a proceeding in which one of the twin pillars of natural justice, audi alterm partem – let the other party be heard was brazenly breached by the Court below cannot be said to have been a fair proceeding at all. The Appellant was denied a fair hearing by the Court below and no reasonable person observing those one sided and skewed proceedings of those dates of 19/5/2008, 20/6/2008 and 27/6/2008 when all the witnesses for the 1st Respondent testified and were discharged from the witness stand by the Court below, would say justice was not only done but was seen to have been done to the Appellant by the Court below.
Thus, in my finding all the proceedings of the Court below on 19/5/2008, 20/6/2008 and 27/6/2008 conducted without the issuance and or service of any hearing notice on the Appellant and the resultant judgment of the Court below delivered on 28/1/20101all amounted to a nullity being in denial of the Appellant of her right to fair hearing as constitutionally guaranteed to her. See P. N. Emerah & Sons Nig. Ltd. V. Dunu 1998) 9 NWLR (Pt. 564) 96, where it was held inter alia thus:
“Where the failure of a party in a case to appear in Court is due to the failure to serve him a notice of hearing, any judgment given in that circumstance will be one given without jurisdiction and it is liable to be set aside on appeal…. It is a judgment entered without jurisdiction and it is therefore a nullity”.
My lords, the right to fair hearing is a Constitutional right intended by the framers of the Constitution for the safeguard of the citizen from being condemned or adjudged liable without being heard. It is so fundamental in law that the effect of its breach, as has been so profoundly pronounced upon by the Courts in a plethora of decided cases as are replete in the law reports, would almost invariably render such proceedings and resultant judgment a nullity. See Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt.1323) 276. See also Amadi V. INEC (2013) 4 NWLR (Pt.1345) 595; Ovunwo & Anor. V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522; Pan African Incorporation & Ors. V. Shoreline Lifeboat Ltd & Anor (2010) All FWLR (Pt. 524) 56; Action Congress of Nigeria V. Sule Lamido & Ors (2012) 8 NWLR (Pt.1303) 560 @ p.593; Judicial Service Commission of Cross River State & Anor V. Dr. (Mrs) Asari Young (2013) 11 NWLR (Pt.1364) 1.
Now, while it is true that “justice delayed is justice denied” yet it is also equally true that “justice rushed is justice crushed” and thus it would indeed be a travesty of justice for a Court not to properly and dispassionately hold the balance of justice between the two extremes of rushing or crushing justice. The most important thing is that at all times in proceedings before the Courts the enshrined constitutionally guaranteed rights of the citizen to fair hearing, to be fairly heard, before decision affecting his civil rights and obligations is reached, must be faithfully observed by the Courts. The right to be heard and for substantial justice to be done to the parties by the Courts cannot be sacrificed at the altar of speed. See Section 36 (1) of the Constitution of Nigeria 1999 (as amended) which provides as follows:
“In the determination of his civil rights and obligation, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
See also Abubakar V. Yar’Adua (2008) 4 NWLR (Pt. 1078) 468: p. 503, where the Supreme Court had stated inter alia as follows:
“…Courts of law cannot sacrifice the constitutional principle of fair hearing at the altar of speedy hearing of cases when the content of the speedy hearing is not in consonance with fair hearing ….Although the law is that speedy hearing is one vital and important aspect of fair hearing, speedy hearing of a case which denies a party access to pre – trial evidence, such as interrogatories, is not fair as it turns contrary to the Constitutional principle of fair hearing. In the instant case, the Court of Appeal was wrong in rejecting the application to administer interrogatories on the ground that it would impede speedy trial of the case.”
In my finding therefore, the Court below ought not only to have issued and served hearing notice or even fresh hearing notice where the circumstances in this appeal so necessitated and or required it on the Appellant, it ought also to have exercised great caution in all its proceedings of 19/5/2008, 20/6/2008 and 27/6/2008 when it proceeded in the absence of the Appellant to conduct its proceeding as if the right to fair hearing of the Appellant does not matter and of no legal consequences to it at all. The entire proceedings on those dates of 19/5/2008, 20/6/2008 and 27/6/2008 were a charade. In law, justice and its dispensation at all times by the Courts must not only be fair but must also be even handed. I say no more on this.
In the circumstances therefore, I hold firmly that the Appellant was denied of her right to fair hearing by the unjustified and unreasonable proceedings conducted by the Court below on 19/5/2008, 20/6/2008 and 27/6/2008 without any notice to her of those dates of hearing, to which she was lawfully so entitled being a party to the 1st Respondent’s Suit. I reiterate it, even if for the up-teemed time, that the right to fair hearing is not a cosmetic right but a fundamental one and must be scrupulously observed by the Courts. Though, and truly so, justice delayed is justice denied, yet justice rushed is justice crushed and in both extreme circumstances it is the lack of proper balancing by the Court that leads to the injury. Thus, a Court should neither be too slow nor be too fast as being in haste. It must be patient and painstaking while hearing and deciding the rights, obligations and liabilities of the parties before it by scrupulously observing the right to fair hearing of all the parties before it.

In the light of all the findings above, I have no difficulty resolving issue five in favor of the Appellant against the 1st Respondent.

ISSUES ONE, TWO, THREE AND FOUR
My lords, having come to the inescapable conclusion that this Appeal has merit in that the entirety of the proceedings of the Court below on 19/5/2008, 20/6/2008 and 27/6/2008 and the judgment of the Court below delivered on of 28/1/2010 were reached in flagrant breach of the Appellant’s right to fair hearing, that is indeed the end of the whole matter. Consequently, there is no longer in law any need for this Court to proceed to consider and resolve issues one, two, three and four on their merit, more so when I have decided to remit the case to the Court below for hearing de novo, since to do so at this stage would in my view amount to a mere academic exercise and a waste of the scarce and very precious judicial time on what is already staring us in our faces as a nullity. See Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853, where the full Court of the Supreme Court had this to say on this issue:
“It is a principle of law long settled that the general attitude of the Courts of law is that they are loathe in making pronouncements on academic/hypothetical issues as it does not serve any useful purpose.”
See also Oke V. Mimiko (No. 1) (2014) 1 NWLR (Pt. 1388) 225 @ pp. 254 – 255; Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 @ p 1497.

In the circumstances therefore, the proper order to make in this judgment is one remitting the 1st Respondent’s Suit as between the 1st Respondent and the Appellant to the Court below for hearing de novo and having so decided to remit the 1st Respondent’s suit to the Court below for hearing de novo before another judge of the Court below as it may be assigned to by the Honourable Chief Judge of that Court, where the fundamental right of all the parties to fair hearing would be scrupulously observed without fail, I do not consider it of any more useful purpose to proceed to consider the merit, if any of issues one, two, three and four in this appeal so as to avoid making any findings of facts on the merit on any of the issues as joined by the parties in their pleadings which may amount to prejudging any of such issues in the 1st Respondent’s Suit.

My Lords, regrettably, it has taken all of 12 years, since these very unfair proceedings in 2008 took place and over 10 years since the null judgment of the Court below was entered against the Appellant in flagrant breach of her right to fair hearing, for the Appellant to finally get justice in this case at least at the level of this Court to return to the Court below to be able to ventilate her defense to the claims of the 1st Respondent. How so sad!

On the whole therefore, having resolved issue five for determination in this appeal in favor of the Appellant against the 1st Respondent, I hold that the Appeal has merit and ought to be allowed. Consequently, it is hereby so allowed.

In the result, the Judgment of the High Court of Edo State, Coram: H. A. Courage – Ogbebor in Suit NO. B/133/2007: Ezediashi Ofili V. Mr. Okeke & Ors, delivered on 28/1/2010, wherein the Claims of the 1st Respondent as Claimant were granted against the Appellant as 3rd Defendant, being in breach of the Appellant’s right to fair hearing is hereby set aside for being a nullity in its entirety.

In its stead, the 1st Respondent’s Suit No: B/133/2007: Ezediashi Ofili V. Mr. Okeke & Ors., is hereby remitted to the Honorable Chief Judge of Edo State for same to be reassigned to another judge of the Court for same to be heard de – novo and determined expeditiously according to law.
I make no Order as to Cost.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I read before now the judgment just delivered by my learned brother, Sir Biobele Abraham Georgewill, JCA. As usual, my learned brother has given elaborate reasons for allowing this appeal

For the comprehensive reasons advanced by my learned brother, I also allow this appeal in the manner and terms set out in the leading judgment.
I abide by the order as to costs.

GABRIEL OMONIYI KOLAWOLE, J.C.A.: My learned brother, Biobele Abraham Georgewill, JCA obliged me with the draft of the lead judgment he has just delivered in which he found the appeal, on its issue 5 as meritorious, and because of the radical nature of the said issue, which borders on the failure of the lower Court to accord the Appellant, as the 3rd Defendant in the proceedings which led to the instant appeal a fair hearing, he had no option left than to set aside the flawed judgment.

I agree wholly with the analysis and resolution of the said issue, and I subscribe to the ancillary orders made remitting the suit to the lower Court to be re-assigned by the Hon. , the Chief Judge of Edo State to another judge to be heard de novo and expeditiously given the time lag.

I have no doubt, that the 1st Respondent and her counsel by the outcome of the appeal, would have realised their folly in urging the lower Court to proceed with the hearing when there was no evidence on the record, that the Appellant had been previously served with hearing notices of the proceedings undertaken in her absence. It is not enough to effect service of the Writ of Summons or any other Originating process on a Defendant, as any proceeding undertaken when hearing of the matter begins without hearing notice duly issued and served on the Defendant or a Respondent, is a sheer waste of time and resources for the parties and the Court as such proceeding is nothing but a nullity in the eyes of the law.

This is a classical example of the saying, that in judicial proceedings, its better to “make haste slowly”, and I have not been able to understand the rationale why the lower Court granted the Appellant leave to file her pleadings Out of time, but in the same application, refused her prayer to recall the 1st Respondent’s witnesses who had testified behind the Appellant’s back as both prayers were, by my assessment, predicated on the same factual circumstances. Granting the Appellant leave to file her Statement of Defence out of time, but denying her the opportunity to recall the 1st Respondent’s witnesses in order to cross examine them, was a rather warped logic that invariably made the entire proceedings conducted to become fractured and judicially unsustainable as it was illogical.

I agree that the appeal succeeds on the issue five, which having regard to its radical, perhaps pivotal nature being an issue of jurisdiction, makes the further consideration of all other issues in the appeal, unnecessary as that will amount to a sterile academic exercise that will serve no useful purpose, other than to compromise the independence and impartiality of the judge who will be re-assigned to hear the whole case de novo.

Appeal succeeds, and I abide with the consequential orders made by the lead judgment.

Appearances:

Frank O. Ezekwueche Esq. For Appellant(s)

Peace Folorunsho Esq. – for the 1st Respondent
The 2nd and 3rd Respondents, though duly served with hearing notice on 12/11/2010, were not represented by counsel at the hearing of this Appeal
For Respondent(s)

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