IGUEBEN LOCAL GOVT & ANOR v. JAVY INVESTMENT (NIG.) LTD & ANOR
(2022)LCN/16850(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Tuesday, June 28, 2022
CA/B/151/2021
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
1. IGUEBEN LOCAL GOVERNMENT 2. MR. JULIUS ASEMOTA APPELANT(S)
And
1. JAVY INVESTMENT NIG, LTD 2. ODEBISI JAMES OKPIA RESPONDENT(S)
RATIO
THE POSITION OF LAW ON CIRCUMSTANCES WHERE A PARTY CANNOT BE HEARD TO COMPLAIN OF BEING DENIED THE RIGHT TO FAIR HEARING
As expressed by Edozie, JSC, in Magna Maritime Services Ltd & Anor Vs. Oteju & Anor (2005) LPELR-1817(SC) on circumstance where a party cannot be heard to complain of being denied the right to fair hearing: “Where a party to a suit has been accorded a reasonable opportunity of being heard and in the manner prescribed under the law and for no satisfactory explanation it fails or neglects to attend the sitting of the Court or boycotts same, that party cannot thereafter be heard to complain about lack of fair hearing. In the case of Okoye v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501 at 541, this Court observed, inter alia, as follows:- “I must also bear in mind the fact that the duty of Court under Section 33(1) of the Constitution is to give the person whose civil right or obligation is to be determined the opportunity of fair hearing. If he knew that the proceedings were going on and did not apply to be heard or the opportunity was made available to him and he failed to or neglected to take it, he cannot now properly complain of a denial of fair hearing. If he was aware that such a proceeding was going on, he could not properly fold his hands and fail to take steps to avail himself a hearing. It is when he has taken such steps and is rebuffed that he can complain of a denial.”
It is also the law that having been served with all processes for use in the Court and a date for hearing properly communicated to him, a party cannot be heard to complain that he was not granted fair hearing. See Abia State Transport Corporation vs. Quorum Consortium Ltd (2009) LPELR-33(SC). See also Ezeigwe vs. Nwawulu (2010) LPELR-1201(SC) where the Supreme Court also expressed that where a party has been given an opportunity to be heard, then he cannot later complain of lack of fair hearing. Where he was given the opportunity but he failed or neglected or refused to utilize same, he cannot later be heard to complain of lack of fair hearing.
Further, in Inakoju, Ibadan South East & Ors vs. Adeleke & Ors (2007)4 NWLR Part 1025 page 423, Ogbuagu, JSC had the following to say:
“Section 36 of the 1999 Constitution, has been thoroughly abused by litigants and especially by many learned counsel who cling or hang on a straw like a drowning man wanting to save his life. This section has been blown out of proportion by many learned counsel who stand, with respect, on quick sand. It is however, also reported in (2005) AN FWLR (pt. 270) 1995) my two Learned brothers, dealt with the issue of fair healing. Therefore, a party or parties given an opportunity to be heard and who is/was aware of proceedings going on in the Court and not taking any steps required by law or the rules of that Court, cannot be heard to complain of denial of fair hearing. No party has the right, it must be stressed, to hold a Court of law to ransom. There are too many decided authorities on this issue including those cited and relied on in the respective briefs of the respondents. I regret to say that the reliance on Section 36 of the 1999 Constitution, has been thoroughly abused by litigants and especially by many learned counsel who cling or hang on a straw like a drowning man wanting to save his life. This section has been blown out of proportion by many learned counsel who stand, with respect, on quick sand. I will however, as many times as possible, where the circumstances call for its reliance, by me, refer to the pronouncement of Achike, JCA (as he then was) in the case of Kaduna Textile Ltd. v. Umar (1994) 1 NWLR (Pt. 319) 143 at 159 C.A. said His Lordship (of blessed memory), inter alia, as follows: “The question is, is it fair and just to the other party or parties, as well as the Court that a recalcitrant and defaulting party should hold the Court and the other parties to ransom? Should the business of the Court be dictated by the whims and caprices of any party? I think not. It goes without saying that justice must be even handled, for the law is no respecter of persons.” PER ORJI-ABADUA, J.C.A.
WHETHER OR NOT THERE IS NEED TO EXERCISE CAUTION IN AN APPLICATION FOR THE FAIR HEARING PROVISION IN THE CONSTITUTION
Tobi, JSC gave the Court a guide as to how to treat complaints of denial of fair hearing by parties in the case of Orugbo v. Una (2002) LPELR – 2778 (SC) when he stated:
“There is need for caution in the application of the fair hearing provision in the Constitution. Where the facts of the case, as in this appeal, do not support the application of the provision, parties should not urge the Court to invoke the provision, and even if so urged, the Court should not succumb to the pressure. Both the respondents and the Court below saw breach of fair hearing principle by the Koko District Customary Court. I do not see any breach. The Court did a very good job and I commend it. It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial Court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation and the Court as the umpire, so to say, has a legal duty to apply it in the litigation, in the interest of fair play and justice. The Courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless, or completely dead outside the facts of the case.”
Per TOBI, JSC (PP. 36-37, para A)
See also Abubakar Tatari Ali Polytechnic v. Maina (2005) LPELR – 11224 (CA) p, 24 paras C- F. PER ABUNDAGA, J.C.A.
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): On the 31st October, 2018, the Respondents initiated an action against the Appellants and then sought the following reliefs:
(a) The sum of N4,500,000.00 (Four million, five hundred thousand naira), being the contract sum for the purchase and installation of a transformer and its accessories at Idumu Otutu quarters, Igueben, Igueben Local Government, sometime in March, 2014, by the claimants, which contract was duly executed by the claimants at the behest of the defendant.
(b) Against the 1st defendant only, the sum of N1,263,310.13 (One million, two hundred and sixty-three thousand, three hundred and ten naira, thirteen kobo), being retention fee of the contract sum of N12,633,101.25 (Twelve million, six hundred and thirty-three thousand, one hundred and one naira, twenty-five kobo), for the construction of a block of three classrooms and headmaster’s office at Udeneria Primary School, Udo, Igueben Local Government Area, which the defendants have failed, refused and/or neglected to pay the claimants since June, 2014, despite repeated demands.
(c) 21% interest per annum on the debt stated in reliefs (a) and (b) from the day of January, 2018 till the date of judgment in this suit.
(d) 10% interest on the debts stated in reliefs(a) and (b) from the date of judgment till the entire judgment sum is liquidated.
(e) Costs of litigation as assessed by the honourable Court.
(f) N20,000,000.00 (Twenty million naira) general damages for breach of contract.”
By the record of appeal before this Court, some Motions for Change of Counsel were filed by the Appellants in the proceeding. The one filed on 12/3/2020 was struck out on 11/1/2021. Then on 16/3/2021, another Motion for Change of Counsel was filed on behalf of the Appellants. The Motion was somewhat moved on 28/4/2021 but on observing some anomalies in the Motion paper, he then applied to withdraw it. Upon the withdrawal, learned Counsel for the Respondents informed the lower Court that the matter was adjourned for final address on that date which the Court proceeded to hear. P. I. Okoh, Esq., Counsel for the 2nd Respondent adopted his address followed by Counsel for the Claimants. It is clear on the record that E. E. Ighalo, Esq., the new Counsel for the 1st Respondent did not adopt any as none was filed on behalf of the 1st Respondent. Then on the 6th July, 2021, the judgment of the lower Court was delivered in favour of the Claimants.
Being irked by the swift action of the lower Court in permitting the adoption of final written addresses of the other Counsel on the apparent inactions of the 1st defendant’s Counsel to seek for an adjournment to afford them the opportunity to participate in the proceeding, the 1st defendant then filed a Notice of Appeal on the 26th July, 2021 which was anchored on one ground of appeal. The record of appeal was received by the Registry of this Court on 29/10/2021. The Appellant’s Brief of Argument was filed on 29/11/2021 while the Respondents’ Brief was filed on 9/12/2021.
In the Appellant’s Brief of Argument, one issue was projected for determination herein, that is to say: “Whether the 1st Defendant/Appellant was given fair hearing at the trial.”
The Respondents for their part also postulated a lone issue thus:
“Whether having regard to the facts and circumstances of this appeal contained in the records of appeal, Appellant’s right to fair hearing was not fully observed by the lower Court.”
The grouse of the Appellants is that the lower Court refused to take the 1st Defendant/Appellant’s Motion for Change of Counsel and went ahead to deliver judgment against the 1st Defendant/Appellant in default of appearance thereby depriving the 1st Defendant/Appellant of fair hearing. He reproduced the provisions of Section 36(1) of the Constitution of Federal Republic of Nigeria, 1999 enshrining fair hearing and then submitted that had the 1st defendant been granted fair hearing the result of the case would have been different, and that, it would be in the interest of justice to remit the case to the lower Court for trial de novo. He cited the case of Ahmed vs. RTA KRCC (2020) Vol. 300 LRCN page 1 where the Supreme Court held that when a question of fairness of hearing arises in a case, the appellate Court has a duty to scrutinize the proceedings to see whether the result of the case would have been the same even if the breach of the principle of fair hearing had not occurred. And where the breach occurred the proper thing must be done by sending the case back for retrial. He contended that the 1st Defendant/Appellant did not apply to withdraw the Motion for Change of Counsel but assuming they did, it is trite law that the sin of Counsel should not be visited on the litigant. He then urged that this appeal be allowed.
In response, learned Counsel for the Respondent submitted that it is trite that when the Court has afforded a party the opportunity to present his case and the party fails to utilize the opportunity so presented, the defaulting party cannot be heard subsequently to complain of breach of his or her right to fair hearing. He then drew the attention of this Court to the enunciation of the Supreme Court in the case of Mgbenwelu vs. Olumba [2017] 5 NWLR Part 1558 page 169 at 196 197, per Akaahs, JSC that: “It is settled law that a party served with a writ of summons and statement of claim in a matter against him and chooses to react, cannot later turn around to accuse the Court of a breach of his right to fair hearing if the Court proceeds, in the circumstance, to hearing and determine the matter. It is not the duty of the Court to compel a party duly served with the originating processes to defend the action, where he has no such a desire. All that is required of the Court is to create and maintain an enabling environment for parties to exercise or take advantage of their right to fair hearing in any proceeding before it. In the instant case, appellant was afforded the opportunity which he decided not to take advantage of and should therefore not be heard to complain of a breach of his right to fair hearing.”
Learned Counsel further made reference to the cases of Ahmed vs. Ahmed [2013] 15 NWLR Part 1377 page 274 at 338, Erinfolami vs. S.G.B. (Nig) Ltd [2008] 7 NWLR Part 1086 page 306 Audu v. INEC (No. 2) [2010] 13 NWLR (Part 1212) 456 at 520 and contended that the Appellant was afforded ample opportunity to present its defence to the Respondents’ suit but it woefully failed, refused and/or neglected to file its defence or present its case before the Lower Court. He then referred to pages 28, 31, 61, 63, 69-74 and 87-87A of the record of appeal which showcased the hearing notices served on the Appellant, the Motion on Notice filed by the Appellant on 16-3/2021 and portrayed the proceedings of the lower Court on the 28th April, 2021. He explained what transpired in Court on that day that led to the Appellant’s Counsel on his own volition withdrawing the said Motion for Change of Counsel.
Counsel submitted that by the decisions in Adetokunbo v. PDP & Ors (2021) LPELR (CA), Gonzee Nigeria Ltd v. Nigerian Educational Research and Development Council (2005) LPELR – 1332 (SC) and Larmie v. Data Processing Maintenance and Services Ltd (2005) LPELR-1756 (SC), the Appellant is bound by the record of the Court. He emphasized that at no time did Counsel for the Appellant present the Appellant’s defence after he voluntarily withdrew his incompetent Motion. He stressed that no Motion was filed for leave to present the Appellant’s defence to the suit before judgment was delivered in the suit. He stated that Appellant treated the entire proceeding with grave levity and disdain.
The complaint of the Appellant herein is that it was not given fair hearing. In determining the issue, I find it appropriate to resort to the Supreme Court decision in Ejeka vs. State (2003) 7 NWLR Part 819 page 408 wherein the Court said thus: “The principle of fair hearing is breached where parties are not given equal opportunity to be heard in the case before the Court. Where the case presented by one party is not adequately considered, the affected party can complain that he was denied fair hearing. Fair hearing is not an abstract term that a party can dangle in the judicial process but one which is real and which must be considered in the light of and circumstances of the case. A party who alleges that he was denied fair hearing must prove specific act or acts of such denial and not a mere agglomeration of conducts which are merely cosmetic and vain.”
In the light of the foregoing, it is imperative to ascertain whether the principle of fair hearing was breached by the lower Court. At this juncture, I find it compelling to examine the record of proceedings of the lower Court contained in the record of appeal transmitted hereto. The record indicates that the Appellant was served with the Writ of Summons and Statement of Claim in the suit on the 31st October, 2018. It was served with hearing notice on the 12th November, 2019. On 22/3/2020, an application for Change of Counsel was filed but the same was struck out on 11/1/2021. Then on the 2nd March, 2020, the 1st defendant filed a Motion for extension of time to file the 1st defendant’s Statement of Defence out of time and for an order deeming the same as properly filed and served. On 11/1/2021, hearing notice was served on the 1st defendant. On 19/2/2021, subpoena issued on 15/2/2021 was served on the 1st defendant. Then on 6/4/2021, the Claimant’s final written address dated 23/3/2021 was served on the 1st Defendant.
However, on 16/3/2021, the Appellant’s Motion on Notice for Change of Counsel was filed and then served.
Then in terms of conducting hearing in the suit, hearing effectively began on the 23rd January, 2020, when the 2nd Claimant was sworn on the Bible to commence his evidence. On that day, both the 1st defendant and its Counsel were absent. On 4/3/2020, the 2nd Claimant continued with his testimony. It was adjourned to 8/4/2020 for continuation of hearing. On 28/9/2020, fresh hearing notice was further ordered to be served on the 1st defendant. On 11/1/2021, the 2nd Claimant continued with his evidence in chief and was cross-examined by P. I. Okon, Esq., Counsel for the 2nd defendant. On the 10th March, 2021, the 2nd defendant commenced his defence and was equally cross-examined on the same day. The parties were given 21 days respectively to file their final written addresses and the case was adjourned to 28/4/2021 for adoption of the written addresses. On 28/4/2021, Counsel for the 1st defendant, E. E. Ighalo, Esq., appeared for the first time at the proceeding and informed the Court that they filed a Motion for Change of Counsel and wanted to move the same. Then on noticing the glaring error on his Motion paper, Counsel applied to withdraw the same. The same was struck out by the Court. Upon the striking out of the Motion, Mr. Okoh reminded the lower Court that the matter was adjourned to that day for final written address and that they were ready to proceed which was permitted by the lower Court.
What is glaringly clear in the record of appeal herein is that on 28/4/2021 when the Claimants’ Counsel informed the lower Court that the matter was for final written address, no application whatsoever was made for an adjournment by the 1st defendant’s Counsel, present thereat who appeared for the first time on that day despite having been served with hearing notices and other processes in the past, to enable him file another Motion for Change of Counsel.
He did not even attempt to make an oral application for change of Counsel let alone the lower Court refusing the same. On the face of the record of appeal before this Court, Learned Counsel for the 1st defendant was indifferent, indolent on the date of adoption of final written addresses of other Counsel before the lower Court, docile and never uttered a word again as depicted therein. He kept mute until the respective Counsel for the Claimants and the 2nd defendant adopted their written addresses and the lower Court adjourned the case to the 6th July, 2021 for judgment. As rightly observed by the Respondents’ Counsel in the Respondents’ Brief of Argument, no attempt was made by the Appellants’ Counsel to file another Motion for Change of Counsel or for filing of the 1st defendant’s Statement of Defence between the time the suit was adjourned for judgment and the time the judgment was indeed delivered. How can it turn round now to accuse the lower Court of breach of its right to fair hearing. As expressed by Edozie, JSC, in Magna Maritime Services Ltd & Anor Vs. Oteju & Anor (2005) LPELR-1817(SC) on circumstance where a party cannot be heard to complain of being denied the right to fair hearing: “Where a party to a suit has been accorded a reasonable opportunity of being heard and in the manner prescribed under the law and for no satisfactory explanation it fails or neglects to attend the sitting of the Court or boycotts same, that party cannot thereafter be heard to complain about lack of fair hearing. In the case of Okoye v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501 at 541, this Court observed, inter alia, as follows:- “I must also bear in mind the fact that the duty of Court under Section 33(1) of the Constitution is to give the person whose civil right or obligation is to be determined the opportunity of fair hearing. If he knew that the proceedings were going on and did not apply to be heard or the opportunity was made available to him and he failed to or neglected to take it, he cannot now properly complain of a denial of fair hearing. If he was aware that such a proceeding was going on, he could not properly fold his hands and fail to take steps to avail himself a hearing. It is when he has taken such steps and is rebuffed that he can complain of a denial.”
It is also the law that having been served with all processes for use in the Court and a date for hearing properly communicated to him, a party cannot be heard to complain that he was not granted fair hearing. See Abia State Transport Corporation vs. Quorum Consortium Ltd (2009) LPELR-33(SC). See also Ezeigwe vs. Nwawulu (2010) LPELR-1201(SC) where the Supreme Court also expressed that where a party has been given an opportunity to be heard, then he cannot later complain of lack of fair hearing. Where he was given the opportunity but he failed or neglected or refused to utilize same, he cannot later be heard to complain of lack of fair hearing.
Further, in Inakoju, Ibadan South East & Ors vs. Adeleke & Ors (2007)4 NWLR Part 1025 page 423, Ogbuagu, JSC had the following to say:
“Section 36 of the 1999 Constitution, has been thoroughly abused by litigants and especially by many learned counsel who cling or hang on a straw like a drowning man wanting to save his life. This section has been blown out of proportion by many learned counsel who stand, with respect, on quick sand. It is however, also reported in (2005) AN FWLR (pt. 270) 1995) my two Learned brothers, dealt with the issue of fair healing. Therefore, a party or parties given an opportunity to be heard and who is/was aware of proceedings going on in the Court and not taking any steps required by law or the rules of that Court, cannot be heard to complain of denial of fair hearing. No party has the right, it must be stressed, to hold a Court of law to ransom. There are too many decided authorities on this issue including those cited and relied on in the respective briefs of the respondents. I regret to say that the reliance on Section 36 of the 1999 Constitution, has been thoroughly abused by litigants and especially by many learned counsel who cling or hang on a straw like a drowning man wanting to save his life. This section has been blown out of proportion by many learned counsel who stand, with respect, on quick sand. I will however, as many times as possible, where the circumstances call for its reliance, by me, refer to the pronouncement of Achike, JCA (as he then was) in the case of Kaduna Textile Ltd. v. Umar (1994) 1 NWLR (Pt. 319) 143 at 159 C.A. said His Lordship (of blessed memory), inter alia, as follows: “The question is, is it fair and just to the other party or parties, as well as the Court that a recalcitrant and defaulting party should hold the Court and the other parties to ransom? Should the business of the Court be dictated by the whims and caprices of any party? I think not. It goes without saying that justice must be even handled, for the law is no respecter of persons.”
It is indeed baffling that even on the face of the record of appeal before this Court and in the light of all that transpired before the lower Court on 28/4/2021, learned Counsel for the Appellants assumed he had moral justification to file this appeal and raise the lone issue herein. What is horridly disturbing in our system is the unreadiness of party on the wrong to admit his blunder and dereliction and then move on. Instead, they tend to indulge in colossal waste of resources to satisfy their egos and shroud their ineptitude. The Appellant had ample opportunity to apply for an adjournment which he failed to do or even file another Motion before the date slated for judgment but he refused to do so. In consequence thereof, this appeal is devoid of merit and should be dismissed with N50,000 cost against the Appellant in favour of the Respondents.
JAMES GAMBO ABUNDAGA, J.C.A.: I have been privileged to read the draft of the judgment delivered by my learned brother, Theresa Ngolika Orji-Abadua, JCA. His Lordship was down to earth on the vexed issue of whether the appellant was denied fair hearing in the circumstances. The record of appeal is replete with several hearing notices issued to the 1st defendant/appellant which he failed to utilize to his advantage. Most absurd was what happened in Court on 28/4/2021 when the written addresses of the claimant and the 2nd defendant were adopted. Counsel for the appellant having withdrawn his motion for change of counsel which was accordingly struck out, watched and did nothing when the addresses aforestated were adopted. In the circumstances in which counsel exhibited a glaring attitude of ineptitude and indolence, it cannot lie in his mouth to resort to the usual blackmail counsel always resort to – blaming it on sin of counsel.
Neither this nor the so called complaint of denial of hearing can avail the appellant in the circumstances of this appeal.
Tobi, JSC gave the Court a guide as to how to treat complaints of denial of fair hearing by parties in the case of Orugbo v. Una (2002) LPELR – 2778 (SC) when he stated:
“There is need for caution in the application of the fair hearing provision in the Constitution. Where the facts of the case, as in this appeal, do not support the application of the provision, parties should not urge the Court to invoke the provision, and even if so urged, the Court should not succumb to the pressure. Both the respondents and the Court below saw breach of fair hearing principle by the Koko District Customary Court. I do not see any breach. The Court did a very good job and I commend it. It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial Court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation and the Court as the umpire, so to say, has a legal duty to apply it in the litigation, in the interest of fair play and justice. The Courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless, or completely dead outside the facts of the case.”
Per TOBI, JSC (PP. 36-37, para A)
See also Abubakar Tatari Ali Polytechnic v. Maina (2005) LPELR – 11224 (CA) p, 24 paras C- F.
It is therefore for this reason as very well articulated by his Lordship in the leading judgment that I also find this appeal to be utterly lacking in merit. It is hereby dismissed with costs assessed at N50,000.00 against the appellant and in favour of the respondents.
ADEMOLA SAMUEL BOLA, J.C.A.: I have read in draft the judgment of my learned brother,
THERESA NGOLIKA ORJI-ABADUA, PJCA. I am in total agreement with his reasoning and conclusion. I equally consider that this appeal is devoid of merit and should be dismissed.
I abide by the order as to cost of N50,000 against the Appellant in favour of the Respondent.
Appearances:
C. U. Ibhafidon For Appellant(s)
K. O. Obamogie, Esq., with him, O. J. Inegbedion, Esq. For Respondent(s)
