JIBRIL ONALO & ORS V. NDANUSA AGUDA (2007)

JIBRIL ONALO & ORS V. NDANUSA AGUDA

(2007)LCN/2528(CA)

In The Court of Appeal of Nigeria

On Monday, the 19th day of November, 2007

CA/A/35/05

RATIO

CONSTITUTIONAL LAW – FAIR HEARING : WHAT IS THE BASIC CRITERIA AND ATTRIBUTE OF FAIR HEARING

“A basic criteria and attribute of fair hearing includes that the court or tribunal hear both sides not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case. Udo Akagha V Paico Ltd. 1993 4 NWLR pt 288 pg 434 Kotoye V. CBN 1989 1 NWLR pt 98 pg 419 Adigun V. A-G Oyo State 1987 1 NWLR pt 53 pg 678. By virtue of section 36(1) of the 1999 Constitution, in the determination of his civil rights and obligations a person is entitled to a fair hearing within a reasonable time by a court or other tribunal established by law. In trials a hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his case or call witnesses Military Governor of Imo State V. Nwauwa 1997 2 NWLR pt 490 pg 675 UBA Plc. V. Okonkwo 2004 5 NWLR pt 867 Pg 445 Essien V. Edet 2004 5 NWLR pt 867 pg 519.” PER OLUFUNMILOLA OYELOLA ADEKEYE J.C.A.

COURT – APPLICATION FOR ADJOURNMENT : WHETHER THE COURT IN ITS WISDOM HAS TO IDENTIFY WHEN AN APPLICATION FOR ADJOURNMENT IS FRIVOLOUS AND CALCULATED TO DELAY AND FRUSTRATE HEARING AND WHERE IT IS SUPPORTED BY PLAUSIBLE REASONS NECESSARY TO DO SUBSTANTIAL JUSTICE IN A MATTER

“The court in its wisdom and experience has to identify when an application for an adjournment is frivolous and calculated to delay and frustrate the hearing of a case and where such application is supported by plausible reason necessary to do substantial justice in a matter. In this case, the current counsel for the defendant in the case when there was a move by the court to set the matter down for hearing afresh, applied for an adjournment based on his letter to the chief judge to grant a new venue for the hearing of the case in view of an undisputed threat to his life.” PER OLUFUNMILOLA OYELOLA ADEKEYE J.C.A.

APPEAL – DEFECTS IN AN APPEAL : WHETHER THE COURT OF APPEAL IN THE INTEREST OF JUSTICE MAY WAIVE DEFECTS IN AN APPEAL OR NON-COMPLIANCE WITH THE RULES OF COURT AND DECIDE AN APPEAL ON MERIT

“The Court of Appeal may in the interest of justice waive defects in an appeal or non-compliance with the Rules of Court and decide an appeal on merit. See Ayinla v. Adigun (1986) 3 NWLR (pt. 30) 1 NWLR (pt. 48) 149. The relevant rule of court for our purpose here is Order 3 Rule 15 (1) & 3 of the Court of Appeal Rules 2002 wherein it is stated: “A respondent intending to rely upon a preliminary objection to the hearing of an appeal must give the appellant three days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with twenty copies thereof with the Registrar within the same time”. That Rule further states that if the Respondent fails to comply with the above rules, the court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such other order as it thinks fit. See Otobaimere v. Akporehe (2004) 14 NWLR (pt. 894) 591 at 610. “PER MARY U. PETER ODILI J.C.A.

APPEAL – GROUNDS OF APPEAL : WHAT IS THE ESSENCE OF THE FORMULATION OF ISSUES IN AN APPEAL

“The essence of the formulation of issue is to reduce the grounds of appeal into terse, compact formulations which take cognisance and consideration of the same issues running through more than one ground of appeal. Hence on the formulation of the issues for determination the grounds of appeal from which they have been formulated, disappear giving way and are replaced by the issues so formulated. Sanusi v. Ayoola (1992) 9 NWLR (pt. 265) – 275 at 291; Okonkwo v. Okolo (1988) 2 NWLR (pt. 79) 632: Ugo v. Obiekwe (1989) 1 NWLR (pt. 99) 566; Oniah v. Onyia (1989) 1 NWLR (pt.99) 514.” PER MARY U. PETER ODILI J.C.A.

JUSTICES

OLUFUNMILOLA OYELOLA ADEKEYE Justice of The Court of Appeal of Nigeria

MARY U. PETER ODILI Justice of The Court of Appeal of Nigeria

OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria

Between

1. JIBRIL ONALO
2. ALI ONALO
3. DANJUMA ADULLAHI
4. YAKUBU AUDULLAHI Appellant(s)

AND

NDANUSA AGUDA
(OBAJE OTALU ATTAH IGALA) Respondent(s)

MARY U. PETER-ODILI, JCA (Delivering the lead Judgment): The Plaintiff now Respondent at the Kogi State High Court holden at Idah Coram Justice S.S. Idagili claimed against the Defendant now Appellants jointly and severally:
(a) An order affirming the agreement entered into by all the parties dated the 8th day of December 2000 acknowledging the entire land as vested in the stool of Obaje Otah presently occupied by the plaintiff as subsisting and binding on all the parties thereto as well as the entire members of the Obaje Otah Descendents’ Union of which the Defendants are part.
(b) An Order of court restraining Defendants from unilaterally, by themselves or (sic) through their servant agents or otherwise collecting tributes from tenants on Anyimekwu Lands or from Leasing out fishing ponds or unilaterally allocating farmlands and fishing ponds to themselves or their tenants without the consent, authority, sanction or approval of the Beaded Obaje Otah who is the Head of Obaje Otah Descendants.
(c) An Order restraining the defendants, their servants and agents from further causing trouble, harassing and chasing out tenants and relations from the land and fishing ponds, encouraging breakdown of law and order within Obaje Otah stool lands and fishing ponds by taking laws into their hands.
(d) An Order directing defendants to account for the tributes they have collected from the land and the fishing ponds leased out by them or forcefully acquired by them.
(e) A perpetual order restraining each of the Defendants from further tampering with the stool land including the ponds on the land whether by themselves or their servants, workers or privies.
The learned trial Judge entered judgment for the Plaintiff/Respondent. The Defendants/Appellants being dissatisfied with the judgment of 17th June 2004 has appealed to the Court of Appeal.
FACTS STATED BRIEFLY
On being served with the said Statement of claim, the Appellants on the 20th May 2002 filed a Joint Memorandum of Appearance dated 15th May 2002. Thereafter, when the Appellants failed to file any defence to the action, the Respondent on 11th October 2002 filed a Motion on Notice seeking an order of the trial court entering final judgment in the suit in favour of the Respondent.
When the matter came up on 22nd October 2002, an adjournment of the suit was sought and granted by the trial court, at the Appellants’ instance, to 4th November 2002 for hearing. On the said 4th November 2002, the Appellants finally filed an application seeking an extension of time within which to file their defence. The said application was moved by the Appellant and granted by the trial court on the said date. The suit was adjourned again for hearing to 2nd December 2002. The Appellants, with leave of court filed a Joint Statement of Defence.
In 2003, the matter despite being ripe for hearing, was adjourned on six (6) different occasions particularly on 30th April 2003, the case was adjourned as a result of a letter addressed to the Hon. Chief Judge from the Appellants’ counsel – Dr. S.E. Mosugu, and copied to the trial court, wherein he requested for a transfer of the case from the trial court on the ground of his (Dr. Mosugu’s) life. On that date, neither the Appellants nor their counsel were present in court despite being aware that the matter was for hearing. Thereafter on 10th November 2003, the Appellants were requested by counsel, J.O. Sani Esq. in court who asked for an adjournment and same was granted by the trial court and the matter was adjourned to 28th November 2003.
On 19th January 2004 when the matter subsequently came up, the Respondent’s counsel applied for the case to be set down for hearing. The trial court granted the said application and adjourned the matter to 11th February 2004. On the 11th February 2004 and 24th February 2004 the Plaintiff and his witness (PW1) testified and the Plaintiff thereafter closed his case with the matter adjourned to 8th March 2004 for address.
When the matter came up on 8th March 2004, the 1st Defendant sought an adjournment on the ground that his lawyer Dr. S.E. Mosugu had written to the Chief Judge about the case. The trial court refused the application for an adjournment and the Respondent’s counsel thereafter addressed the trial court and the matter was adjourned to 29th April 2004 for judgment. After an adjournment of the suit to 10th May 2004, judgment was eventually delivered on 17th June 2004 with all parties present in court. It is against that judgment that the Appellants have now appealed to this court.
The Appellants filed a Brief on 29/3/05 and a Reply Brief on 23/5/06.
The Respondent filed their Brief on 9/3/06 and it was deemed filed on 16/5/06. Respondent filed a Notice of Preliminary Objection on the 9/3/06 and incorporated arguments thereof in the Respondents Brief.
In the Appellant’s Reply Brief was answer to the arguments on the Preliminary Objection. It is stating the trite that I shall handle the Preliminary Objection first.
PRELIMINARY OBECTION:-
Mrs. Olabisi Soyebo for the Respondent submitted that the trial court did not in its judgment make any pronouncements from which ground A of the Appellant’s Notice of Appeal filed on 5th July 2004 could have arisen. That it is settled that for grounds of appeal to be competent, they must arise from the decision appealed against. She cited Sanusi v. Ayoola (1992) 9 NWLR (pt. 265) 275 at 290 (h); Akibu v. Oduntan (2000) 13 NWLR (pt. 685) 446 at 461 (h).
Learned counsel further stated that the Appellants did not put up any defence before the trial court nor did they lead any evidence in

MISSING PAGE

CA/A/252/94 reported in (1997) 10 NWLR (pt. 526) p. 540 in which Judgment was delivered against the Respondent, when the entire suit was caught by the principle of Res judicatam and Respondent was consequently estopped from relitigating the suit. That it is trite law that jurisdiction and competence are the live wires of proper adjudications, so much so that where these are absent, no matter how well conducted the proceedings may have been the entire adjudicative process would be a nullity. She cited Madukolu v. Nkemdilim (1962) 2 SCLR 341; Ebe v. Ebe (2001) NWLR (pt. 860) 215; Dunguns V. Mbudiye (2005) 8 NWLR (pt. 927) 492.
Learned counsel for the Appellants further contended that points of jurisdiction along with res judicatam/estoppel as in this case can be raised at any stage of the proceedings. She cited Dungus v. Mbudiye (supra); Ladimeji v. Salami (1998) 5 NWLR (pt. 548) 1; Oloba v. Akereja (1988) 7 SCNJ 56.
Learned counsel for the Appellants gave details in the Record of proceedings showing the relationship between the previous proceedings of 1997 judgment and the one which had brought about this appeal for which Res judicatam applies. That it is not correct that the Ground A of the Grounds of Appeal is not connected or did not arise in the course of the proceedings for which it should be struck out.
It is true that any grounds of appeal which does not relate to any issue decided by the court whose decision is being challenged is incompetent and must be struck out; Akibu v. Oduntan (2000) 13NWLR (pt. 685) 446 at 461.

The Court of Appeal may in the interest of justice waive defects in an appeal or non-compliance with the Rules of Court and decide an appeal on merit. See Ayinla v. Adigun (1986) 3 NWLR (pt. 30) 1 NWLR (pt. 48) 149.
The relevant rule of court for our purpose here is Order 3 Rule 15 (1) & 3 of the Court of Appeal Rules 2002 wherein it is stated:
“A respondent intending to rely upon a preliminary objection to the hearing of an appeal must give the appellant three days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with twenty copies thereof with the Registrar within the same time”.
That Rule further states that if the Respondent fails to comply with the above rules, the court may refuse to entertain the objection or may adjourn the hearing thereof at the cost of the respondent or may make such other order as it thinks fit. See Otobaimere v. Akporehe (2004) 14 NWLR (pt. 894) 591 at 610.
The Ground of Appeal subject of this preliminary objection is restated as follows:-
“The High Court of Justice Kogi state, Idah erred in law when it entertained, heard and delivered Judgment in this suit when it lacked competence and or jurisdiction to hear the case of ownership and control rights over ANYIMEKWU ISLAND which was the subject of protracted litigation up to the Supreme Court of Nigeria between the same parties (ONALO v. AGUDA), Appeal No. CA/A/252/94 reported-(1997) 10 NWLR (pt 526) P. 540 in which Judgment was delivered against the Respondent, when the entire suit is caught by the principle of Res Judicata and Respondent was consequently estopped from relitigating the suit – same having been finally determined by the Court of Appeal and the Supreme Court against the Plaintiff/Respondent”.
The Respondent herein contends that this Ground of Appeal did not have a basis within the proceedings at the lower court. It is from that ground that issues have been formulated in this appeal.
The essence of the formulation of issue is to reduce the grounds of appeal into terse, compact formulations which take cognisance and consideration of the same issues running through more than one ground of appeal. Hence on the formulation of the issues for determination the grounds of appeal from which they have been formulated, disappear giving way and are replaced by the issues so formulated. Sanusi v. Ayoola (1992) 9 NWLR (pt. 265) – 275 at 291; Okonkwo v. Okolo (1988) 2 NWLR (pt. 79) 632: Ugo v. Obiekwe (1989) 1 NWLR (pt. 99) 566; Oniah v. Onyia (1989) 1 NWLR (pt.99) 514.
I have considered the proceedings at the lower court including the judgment and I find this objection and the reasons for it curious since the Ground is based on issues that were fully articulated at the lower court and not hidden. This objection lacks merit in the extreme and I dismiss it.
ISSUES FOR DETERMINATION
The Appellants through counsel, Dr. Mosugu raised two issues for determination which are:-
1. Whether the learned trial Judge could proceed to hear the case and the address on it and to give judgment on it without ensuring that both parties, especially the Defendants/Appellants (whose counsel had officially written to the court/Chief Judge) either had notice of hearing on particular adjourned dates or were heard after appearing (on the date fixed for plaintiffs address) and requesting for an adjournment and whether the Appellant’s guaranteed constitutional right of fair hearing had been observed.
(2) Whether the learned trial Judge could entertain a fresh suit over Anyimekwu Island in view of the applicability of the principles of Res judicatam and estoppel.
Learned counsel for the Respondent Mrs. Soyebo, on their behalf posed two questions for determination and these are as follows:-
1. Whether having regard to all the circumstances of this case, the Appellants can complain of a denial of fair hearing
2. Whether the trial court rightly granted the reliefs sought by the Respondent?
For ease of navigation I shall utilise the issues as formulated by the Appellants.
ISSUE NO.1
Learned counsel for the Appellants submitted that in the determination of the plaintiff’s suit by the learned trial Judge, the constitutional mandate of Section 36(1) of the 1999 Constitution was violated in so far as it relates to the Appellants who were denied fair hearing and consequently occasioned a miscarriage of justice to the Appellants. That the court to be fair and just should hear both sides by giving them ample opportunity to present their respective cases. He cited the cases of UBA PLC. v. Okonkwo (2004) 5 NWLR (pt. 867) 445; Essien v. Edet (2004) 5 NWLR (pt. 867) 519.
Learned counsel referred to the Record of proceedings with the relevant dates of adjournment as to what transpired. He submitted as one of the several examples that on the 11 -2 – 2004 the reason for Defendants/Appellants absence was that neither they nor their counsel was in court on the altered date of proceedings on 19/1/2004 and there was no order for fresh hearing notice to be issued against 11/2/2004. Also that the learned trial Judge was wrong to have adjourned “for address” rather than for defence or for Address/Defence. He said the learned trial Judge had closed the door on the Defendants/Appellants who should have been heard – even if their defence was stupid.
Dr. Mosugu stated further that on the said 11/2/04 there was no proof of service of hearing notice on Defendants/Appellants and the court did not inquire about them. That there was no order for service of hearing after the close of plaintiff’s case and whilst adjourning for address. He cited Okafor v. Attorney-General Anambra State (1991) 6 NWLR (pt. 2000) 659 Wema Bank Nig. Ltd v. Odulaja (2000) 3 SCNJ 64 at 69.
Dr. Mosugu of counsel went on to restate the records of proceedings of 23-2-2004, the day of judgment of 17-6-2004. He submitted that it would be observed that on 8/3/2004 before Onoja Esq. (for the plaintiff) commenced his address, the 1st Defendant had appeared in court and requested for an adjournment, reminding the court in the process that his lawyer had written to the Chief Judge about this case but the learned trial Judge refused the request for an adjournment.
Learned counsel for the Appellant contended that it was wrong and an error to adjourn for Judgment and to refuse an adjournment for Defence especially as one Defendant was present in the court and spoke to the Judge. That when the Plaintiffs case was re-opened there ought to have been an adjournment plus an accompanying order for the issuance of fresh hearing notice at least on 2nd – 4th Defendants. That this showed that the Judge had assumed or speculated that Defendants would never appear again in the case: He referred to Abuja v. Chairman, Rent Tribunal (2003) 10 NWLR (pt. 829) 633; Sodipo v. Lemminkainen (1986) 1 NWLR (pt. 15) 220 at 234 – 235.
Learned counsel referred to the different dates and the fact that no hearing notices were served on the Defendants/Appellants and so the trial court lacked competence and a miscarriage of justice occurred. He cited Mbadinju v. Ezuka (1994) 10 SCNJ 109 at 121; Skenconsult Nig. Ltd. v. Ukey (1981) 1 SC 6 at 26; Otobaimere v. Akporehe (2004) 14 NWLR (pt. 894) 59; Savannah Bank Nig. Plc. v. Ogutuga (2004) 7 NWLR (pt. 873) 579, 595; Udensi v. Odusote (2003) 6 NWLR (pt. 817) 545.
Learned counsel for the Respondent in response stated that the Appellants were given a fair hearing considering the facts and circumstances of this case. She referred to the Record of proceedings particularly the respective days the matter came up and what transpired in the court. She stated that the conduct of the Appellants throughout the proceedings as evidenced from the Record shows a deliberate lack of interest or nonchalance in the proceedings. That on 10th November 2003 when the matter was again stated for hearing, the Appellants were represented in court by J.O. Sani Esq. That they again appeared in court on 8th March 2004 when the matter came up for address. Also that the Appellants were in court when judgment was delivered but the Appellants made no attempt to put in any defence. She said Appellants acted as on-lookers or at best with a lukewarm attitude to the whole suit despite having at least two different counsel representing them.
Learned counsel said the Appellants are not deserving of any sympathetic considerations. That it was the application of the Respondent to have judgment entered against the Appellant that awakened the Appellants. That if the Respondent had not filed the said application, it is doubtful if the Appellants would have taken any steps. That it is the obligation of parties in a civil suit to pursue their matter diligently. She cited Ogbu v. Urum (1981) NSCC 81 at 86 – 91.
Mrs. Soyebo further stated that the Appellants had hinged their argument for absence on the fact that Dr. Mosugu for the Appellants had written to the Chief Judge for a transfer of the case to another court citing safety of his life. Learned counsel for the Respondent said the trial court could not wait forever for the Defendants and if Dr. Mosugu their counsel could not attend court any longer they ought to have briefed other counsel who was not so restrained and they chose not to. That they must therefore live with the consequence of their action/inactions as they slept on their rights and cannot plead a lack of fair hearing. She referred to Jonason Triangles Limited v. C.M. & P. Limited (2002) 15 NWLR (pt. 789) 176 at 193; Military Governor of Lagos v. Adeyiga (2003) 1 NWLR (pt. 802) 589: Kaduna iles Ltd v. Umar (1994) 1 NWLR (pt. 319) 143 at 159.
Mrs. Soyebo stated on that the Appellants even entered a memorandum of Appearance but thereafter chose a passive or nonchalant stance even when they were present in court during the trial. That the Appellants knowing that the matter had been adjourned ought to have taken diligent steps to check and ascertain the date the matter was adjourned to. That even on 19th January 2005 they failed to attend court despite being aware that the Respondent’s counsel intended to move the court afresh to have the matter set down for hearing and so there was no obligation to issue any fresh hearing notice on the Appellants as suggested by the Appellants. She cited Mirchandani v. Pinheiro (2001) 3 NWLR (pt. 701) 555 at 571.
Learned counsel for the Respondent went on to say that it is not every application for adjournment that deserves to be granted as each case depends on its own particular facts. That it is a matter entirely within the jurisdiction of the court having regard to all the circumstances of the case and an appellate court will not generally question the exercise of discretion by a lower court merely because it could have exercised the discretion in a different way if it had been in the lower court’s position. She cited Solanke v. Ajibola (1968) ANLR 48 at 54.
In reply on points of law, learned counsel for the Appellants stated that the complaint of absence of fair hearing is that the Appellants were denied opportunity of being heard in the trial of this case within the stipulations of the Constitution, the statutes, rules of court and rules of audi alteram parterm. That Appellant’s counsel had complained to the trial Judge and the State Chief Judge about danger to his life from the Respondent and or his agents. This serious complaint was not denied by Respondent nor his counsel and so it cannot be said in the circumstances that Appellants were over-indulged or went to sleep or non – diligent whilst awaiting the response of the Chief Judge to transfer the case from Idah. That going ahead to hear and determine the case, in the circumstance is tantamount to denial of fair hearing and justice.
It is because of the crucial nature of the question raised in this Issue NO. 1, that I shall have recourse to the judicial authorities for guidance.
A court can only be competent if, among all other things, all the conditions precedent to its jurisdiction were fulfilled. One of such condition precedent is the service of the process on the defendant so as to enable him appear to defend the relief being sought against him. Thus, lack of service of process does not only affect the form but goes to the root of the matter. UBA PLC v. Okonkwo (2004) 5 NWLR (pt. 867) 445 at 466; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6.
Where service of process required, and the person affected by any order but was not served with the process is entitled in the interest of justice to have the order set aside as a nullity.
Daniels v. Insight Engineering Co. Ltd. (2002) 10 NWLR (pt. 775) 231; M.V. Arabella v. N.A.I.C. (2002) 15 NWLR (pt. 791) 570; National Bank v. Guthrie (1993) 3 NWLR (pt. 284) 643; Otobaimere v. Akporehe (2004) 14 NWLR (pt. 894) 591.
Service of process of court is basic to invoking the jurisdiction of the court. The rationale for this is to afford either side the opportunity of putting across their positions for the consideration of the court so that none of the parties can be condemned unheard. The issue of service of court processor any other document emanating from a court is so fundamental that a failure in compliance therewith is capable of rendering the proceedings or any step taken in the proceeding null and void. Otobaimere v. Akporehe (2004) 14 NWLR (pt. 894) 591 at 614, 615.
To underscore the fundamental nature of service in our legal practice there are certain aspects that show that non-service when it should has no alternative. When the court makes an order as to how service of process is to be effected no party has a right to abridge or amend it to suit his convenience. Any alteration as to the place of service must be sought for and granted by the court. If the court makes an order for substituted service of process, the order can be altered only if personal service is effected because the essence of service of any process is for the person to whom the process is directed to have knowledge that he has a case to answer or a claim to dispute. Otobaimere v. Akporehe (2004) 14 NWLR (pt. 894) 591 at 613 – 615.
Where service of process is required, failure to serve is a fundamental vice and the person affected by the order or decision but was not served with the process is entitled in the interest of justice to have the order or decision set aside as a complete nullity. Such an order of nullity becomes necessary because due to service of process is a condition sine qua non to the hearing of any case by a court. It is a fundamental vice which easily vitiates the proceedings. Thus, where proceedings are conducted when no hearing notice is served on a party who should have been necessarily served, the whole proceedings are rendered void no matter how well conducted. Ebe v. Ebe (2004) 3 NWLR (pt. 860) 215 at 241, 254; Mbadinju v. Ezuka (1994) 8 NWLR (pt. 364) 535; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 SC 6; NASCO Management Services Ltd. v. Amaku Transport Ltd. (2003) 2 NWLR (pt. 804) 290.
Where after both parties to a dispute have been duly notified of the hearing date and a party for no justifiable reason decided to opt out of the proceedings, the case presented by the other party, once it is not discredited in any legal way, should be the case to be considered on the merit. The intention of the other party why it refuses to take part is not the business of the court. See Military Government Lagos State v. Adeyiga (2003) 1 NWLR (pt. 802) 589 at 611; Obimiami Brick and Stone Nigeria Ltd. v. A.C.B. Ltd. (1992) 3 NWLR (pt. 229) 260; Ibekendu v. Ike (1993) 6 NWLR (pt. 299) 287.
Jonason Triangles Ltd. v. C.M. & P. Ltd. (2002) 15 NWLR (pt. 789) 176 at 192, 193.
The best notification to parties to an action is the one communicated to them personally in the open court. Thus, where parties by their conduct voluntarily opt out of the trial although they had adequate information of the hearing date and the venue of the trial, they cannot turn round to complain of want of fair hearing as a result of non-issuance of hearing notice.

A Court of law can indulge a party only within the confines of its rules. In other words, a court of law can indulge a party in so far as its rules permit. Where rules of court in line with the fair hearing principles order a specific conduct on the part of the parties, the court has a duty to enforce the rules. In such a situation, the defence of fair hearing is not available to the aggrieved party because the rule itself has complied with fair hearing. Per Tobi JSC in M.M.S. Ltd. v Oteju (2005) 5 SC 55 at 69.
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 he failed, neglects to attend the sitting of the court, the party cannot thereafter be heard to complain of lack of fair hearing. Kaduna ile Ltd v. Umar (1994) 1 NLR (PT. 319) 143 AT 159.
In M. F. Kent (W.A.) Ltd. v. Martchem Ind. Ltd. (2000) 8 NWLR (pt. 669) 459 at 481 it was held:-
The duty resides in a party who commences proceedings in a court of law to attend court on the several adjourned dates the case may be fixed for. The Defendant who responds to the claim of the plaintiff if he chooses to defend must also acquaint himself with the date of hearing up to the date of judgment in the case.
If a procedural step is to be taken and is not taken, it cannot be blamed on counsel because it is incumbent on a party or litigant to ensure that a procedural step had been taken. John v. Blakk (1988) 1 NWLR (pt. 72) 648; Nzeribe v. Dave Engineering Co. Ltd (1994) 8 NWLR (pt.361) 124; Munkarim v. Agbaje (1982) 11 SC 122.

MISSING PAGE

It is not every application for adjournment that should be allowed. Each case must be treated according to its special circumstances. Abeki v. Amboro (1961) All NLR (pt. 4) 368; State v. Albert (1982) 5 SC 6; Yakubu v. NITEL Ltd. (2006) 9 NWLR (pt. 985) 367.
An application for adjournment is only prima facie evidence that the applicant is not ready to proceed with the case. It is not conclusive proof of that fact. It is also not a reason why the applicant should not be given an opportunity to decide whether or not to proceed with his case. This is because the limitation a counsel may suffer from his inability to proceed with the applicant’s case or application cannot be taken advantage of in denying the applicant the right to be heard which is a fundamental and indispensable requirement of any judicial proceedings and decisions. Therefore, the court before which an application for adjournment is made, cannot assume an answer one way or the other on such right without affording the applicant a hearing. Aliyu v. Chairman, Rent Tribunal (2003) 10 NWLR (pt. 829) 633 at 647; Ceekay Traders Ltd v. General Motors Co. Ltd (1992) 2 NWLR (pt. 222) 132.
I have tried to refer to the numerous authorities on fair hearing and a denial thereof. The question to answer is whether the cardinal principles of fair hearing were applied in this instance in the circumstances of this particular case. From the records of proceedings many times the defendants/Appellants were absent and there was silence as to hearing notices and when adjournments were taken there was silence as to how the Defendants/Appellants or their counsel were to be in the picture of the next date, Also clearly in place was the silence of why the Defendants/Appellants were not in court and if a notification was made.
As if those peculiarities were not critically worrisome was the big problem an aspect not disputed by any of the parties and evidence in the Record? That fact being that Appellants counsel Dr. Mosugu had had an incident concerning his being counsel for the Defendants/Appellants for which he was concerned for his safety and he proceeded to write to the Chief Judge to reassign to a safer forum. Nothing in the records shows the outcome of that correspondence to the Chief Judge. The situation got all the more troubling when the 1st Defendant himself on one occasion in court reminded the court of that letter by his counsel which reaction of the Chief Judge was awaited and that he should be granted an adjournment to get the reaction of the Chief Judge. The learned trial Judge got seduced by the arguments of learned counsel for the plaintiff/Respondents that the Defendants/Appellants had been too luxuriously indulged (the words mine even though the effect is the same).
It is clear therefore that in this peculiar circumstance no matter how provocative the application for adjournment may be and however the frequency the nagging issue remains that the principle of audi alteram parterm had been jeopardised and the Appellants had been denied of their right to have their side of the story told and heard. That being the case and the denial of fair hearing not having an alternative I find it very simple and easy to find for the Defendants/Appellants that their right to fair hearing had been compromised. I place reliance on Ceekey Traders Ltd. v. General Motors Co. Ltd. (1992) 2 NWLR (pt. 222) 132; Ebe v. Ebe (2004) 3 NWLR (pt. 860) 215 at 241 -245; Mbadinju v. Ezuka (1994) 8 NWLR (pt. 364) 535.
In the light of the foregoing purely based on the facts available including the undisputed that I find that this issue NO.1 is to be answered in the negative. That is, the constitutional right guaranteed in Section 36 of the 1999 Constitution of the Federation of Nigeria had not been complied with. The only course of justice I see before me therefore is to hold that this appeal is meritorious and should be allowed.
The second issue which is based on the doctrine of Res judicata cannot therefore be considered since this court would not have the necessary jurisdiction to entertain arguments in that regard.
The principle of res judicatam which is more of evidence than anything else is a shield and not a sword and for that reason, cannot serve as a basis for any claim and so there is need for full hearing. See Onalo v. Aguda (1997) 10 NWLR (pt. 526) 540 at 556 per Kalgo JCA (as he then was).
From all that I have stated above this appeal is allowed, the decision or judgment of the court below is set aside. I remit this matter to the Chief Judge for re-assignment to another Judge, other than S. Idagil J. for hearing on the merit.
Costs of N20, 000.00 awarded to the Appellants to be paid by the Respondents.

OLUFUNLOLA OYELOLA ADEKEYE, J.C.A: I was privileged to read in draft the judgment just delivered by my learned brother M.U. Peter-Odili, JCA. In our adversarial system of adjudication it is the prerogative of a judex to be dominus litus in his own court. This gives him a wide discretion which he must exercise judicially and judiciously.
Bankole V. Dada 2003 11 NWLR pt 830 pg 174.
Planwell Watersled Ltd. V. Ogala 2003 18 NWLR pt 852 pg 478
In our civil jurisprudence particularly in the conduct of trial granting parties application for an adjournment is an indulgence exercised at the discretion of a judge dictated by the circumstance of a particular case. Thus a judicial discretion is exercisable not on mere figment of the person exercising same but upon facts and circumstances necessary for the proper exercise of that discretion.
NDIC V SBN Plc. 2003 1 NWLR pt 801 pg 311
Incessant applications for adjournment may sometime be provocative or even irritable, but a judge has no reason to derail from, or tread upon the basic tenets of common law right or constitutional right of a litigant that a trial must be conducted according to all the legal rules formulated to ensure that justice is done to all parties to a cause or matter.
Okafor V. A-G Anambra State 1991 3 NWLR pt 200 pg 59.
A basic criteria and attribute of fair hearing includes that the court or tribunal hear both sides not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case.
Udo Akagha V Paico Ltd. 1993 4 NWLR pt 288 pg 434
Kotoye V. CBN 1989 1 NWLR pt 98 pg 419
Adigun V. A-G Oyo State 1987 1 NWLR pt 53 pg 678.
By virtue of section 36(1) of the 1999 Constitution, in the determination of his civil rights and obligations a person is entitled to a fair hearing within a reasonable time by a court or other tribunal established by law. In trials a hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his case or call witnesses Military Governor of Imo State V. Nwauwa 1997 2 NWLR pt 490 pg 675
UBA Plc. V. Okonkwo 2004 5 NWLR pt 867 Pg 445
Essien V. Edet 2004 5 NWLR pt 867 pg 519.
It is however equally supported by a plethora of decided cases of our courts of record, that where both parties to a dispute have been fully notified of the hearing dates and a party for no justifiable reason decided to opt out of the proceedings, the case presented by other party, once it is not discredited in any legal way, the case should be considered on the merit. The intention of the other party why it refuses to take part is not the business of the court. In other words, where a party to litigation has been granted a reasonable opportunity of presenting his case under the law and for no satisfactory explanation has neglected or failed to seize the opportunity, the party cannot thereafter be heard to complain of lack of fair hearing.
Jonason Triangle Limited V. C.M. & P Limited 2002 15 NWLR pt 789 pg 176
Kaduna iles Ltd. V. Umar 1994 1 NLR pt 319 pg 143
Military Governor of Lagos State V. Adeyiga 2003 1 NWLR pt 802 pg 589.
It is the duty of a party to a civil suit to pursue the matter diligently and where a party has put in a defence, he has an obligation to check and ascertain the date the matter was adjourned to up to judgment. The best notice given to parties to an action is that announced to them personally in open court. Solanke V. Ajibola 1968 ANLR 48.
The court in its wisdom and experience has to identify when an application for an adjournment is frivolous and calculated to delay and frustrate the hearing of a case and where such application is supported by plausible reason necessary to do substantial justice in a matter. In this case, the current counsel for the defendant in the case when there was a move by the court to set the matter down for hearing afresh, applied for an adjournment based on his letter to the chief judge to grant a new venue for the hearing of the case in view of an undisputed threat to his life. This is a situation which required that the learned trial judge as an arbiter should tread cautiously and wait for the reaction of the chief judge to the application.
Going ahead by the court to determine the matter on its merit without considering the application of the counselor the appeal of the party who was present in court on the date his counsel was not available is to my mind against the dictates of Section 36(1) of the 1999 Constitution.
On the doctrine of fair hearing and consequently a breach of same, the right to fair hearing is a fundamental constitutional right guaranteed by the Constitution of the Federal Republic of Nigeria 1999, and a breach of it particularly in trials vitiates such proceedings rendering same null and void.
Saleh V. Monguno 2003 1 NWLR pt. 801 pg 221.
With fuller reasons given by my learned brother in the leading judgment, I agree with the conclusion that Issue no one has adequately taken care of this appeal. I also allow the appeal and abide the consequential orders made in the leading judgment.

OYEBISI FOLAYEMI OMOLEYE, J.C.A: I had a preview of the lead judgment just delivered by my learned brother, Mary U. Peter – Odili, JCA. The brief facts of the case are as narrated by my learned brother in the said lead judgment. I agree with the reasons articulated to arrive at the conclusion that the appeal is meritorious and should be allowed. I however wish to add the following complimentary remarks.
To start with, learned counsel for the Respondent filed a Notice of Preliminary Objection predicated on the ground that the Appellants’ Notice of Appeal in its ground A is incompetent, same not having arisen from the decision of the trial court appealed against. For reason of convenience, the said ground A is reproduced thus:
“The High Court of Justice Kogi State, Idah erred in law when it entertained, heard and delivered Judgment in this suit when it lacked competence and or jurisdiction to hear the case of ownership and control rights over ANYIMEKWU ISLAND which was the subject of protracted litigation up to the Supreme Court of Nigeria between the same parties (ONALO V. AGUDA), Appeal No. CA/A/252/94 reported-(1997) 10 NWLR (Pt. 526) p. 540 in which Judgment was delivered against the Respondent; when the entire suit is caught by the principle of Res Judicata and Respondent was consequently estopped from relitigating the suit-same having been finally determined by the Court of Appeal and the Supreme Court against the Plaintiff/Respondent”.
It is trite that grounds of appeal must reflect the grievance of the appellant against the judgment/ruling of the trial court for them to be valid. In the absence of a valid ground of appeal, any issue formulated is necessarily incompetent and suffers the fate of striking out. This is so because grounds and issues formulated therefrom are meant to emphasis the real issues for determination between the parties before the appellate court. Appeals are heard and determined on issues distilled from the grounds of appeal filed before the court. A ground of appeal will therefore be said to be incompetent when the respondent is left in doubt or without adequate information as to what the appellant is complaining about. Seethe cases of:
1. Aderounmu V. Olowu (2000) 2 SCNJ p. 180 and
2. Unoh V. Industrial Training Governing Council (2001) 4 NWLR (pt. 703) p. 281
In determining the validity of grounds of appeal and the issues distilled therefrom, it is important to examine the relevant Rules of Court which are the guiding principles for the formulation of grounds of appeal. Order 6 rule 3 of the Court of Appeal Rules, 2007 states that:
”3 – No ground which is vague or general in terms or which discloses no reasonable ground of appeal shall not be permitted” save the general ground that the judgment is against the weight of the evidence, and ground of appeal or any part thereof which is not permitted under this rule may be struck alit by the Court of its own motion or on application by the respondent”
The lucid interpretation of the above provisions is that this court can strike out incompetent grounds of appeal either on its own motion or on a sustained preliminary objection raised by the respondent. See the cases of:
1. Amadi V. Okoli (1977) 7 SC p. 57 at p. 63;
2. Okorie & Ors. V. Udom & Ors. (1960) SCNLR p. 326;
3. Agbaka V. Amadi (1998) 7SC (Pt. II) p. 23 and
4. Osawaru V. Ezeiruka (1978) 6-7 SC p. 135.
It is very obvious, indeed anyone especially a discerning respondent after a careful examination of ground A under attack would be left in no doubt that the appellants are complaining about the competence and jurisdiction of the trial Court to hear the case over Anyimekwu Island which allegedly had been previously litigated upon up to the Supreme Court between the parties; that the suit was caught by the principle of “res judicatam” and the respondent was consequently estopped from relitigating the suit. This can be garnered from the record of proceedings. I find therefore that ground A relates to issues arising from the judgment of the trial court. It is not vague or general in terms or unreasonable. The preliminary objection of the respondent is consequently not sustainable, it is hereby dismissed.
Under issue one (1), the grouse of the appellants is that they were denied fair hearing by the learned trial Judge. That the denial is an infraction of their rights as entrenched in the provisions of Section 36 (1) of the 1999 Constitution and that this has occasioned a miscarriage of justice to them.
As can be gleaned from the record of proceedings, pleadings were filed and exchanged by parties. It is correct that there were several adjournments at the instance of the appellants. It is however noteworthy that the adjournment sought by the appellants and granted them by the learned trial Judge on 30/4/2003 was based on the letter the appellants’ counsel wrote to the Chief Judge of Kogi State requesting that the case be transferred from the trial court because of an alleged threat to the life of the appellants’ counsel. Subsequently, the case was set down for hearing and on 11/2/04, hearing commenced apparently in the absence of the appellants. There is no indication in the record of proceedings that the appellants were served with hearing notices in respect of the days the respondent presented his case. Albeit, on 8/3/04 the day the respondent was billed to address the trial court, the appellants’ counsel was absent but the 1st appellant was personally in attendance and he reminded the learned trial Judge that the response and decision of the Chief Judge were still being awaited regarding the request of the appellants to have the case transferred from the trial court to another location within jurisdiction. Hence, the 1st appellant sought an adjournment for this reason but the trial court refused the application, went on to take the address of the respondent that day and delivered its judgment on 17/6/2004.
It is true that the grant or refusal of an application for adjournment is a discretionary one which must be exercised judicially and judiciously after due consideration of the peculiar circumstances of each case. However, it is established that due regard must be given by the court not only to the reasons for the application but also what the party making the application intends to do if the application is granted. Judicial discretion means the liberty to act within a given set of facts and circumstances in the overall interest of justice. If therefore there is any miscarriage of justice in the exercise of such discretion, it is within the competence of an appellate court to have it reviewed.
The major reason for the latest of the applications for adjournment by the appellants as earlier on noted was to enable all including the trial Court obtain the decision of the Chief Judge regarding the request to have the case transferred from the trial Court. The learned trial Judge was well aware of the request, with all due respect to him, he ought to have waited for the decision of the Chief Judge rather than proceed to hear the case. After all, the case was assigned to him in the first instance by the Chief Judge who still reserves the right to re-assign the case to another court within jurisdiction if there arises a just cause so to do. His Lordship the learned trial Judge could have as well taken up the issue of the request to have the case transferred with the Chief Judge administratively. In my humble opinion, the learned trial Judge should not have been in any haste to hear and determine the case without due consideration of the interests of all parties in the case.
The obvious concern of the learned trial Judge in seeing to it that the hearing of the case was not further delayed could be appreciated, it is however still very germane that in his zeal and quest for speedy dispensation of justice he ought to have ensured that the interest of none of the parties was jeopardised.
The fundamental requisite of due process and procedural fairness entails affording all parties in a suit the opportunity not only to be aware that a matter is pending against them, they must be allowed to make an informed choice whether to acquiesce or contest and be heard on it. Fair hearing connotes giving parties before the court the right to be heard before the court finally decides a matter. This is the time-hallowed principle of natural justice embodying the “audi afteram partem” rule which simply means, “Please hear the other side”, The essential of fair hearing is that a court must hear both sides to a case, Fair hearing demands equal treatment, equal opportunity and equal consideration to all parties concerned in a case. See the cases of:
1. Saleh V. Munguno (2003) 1 NWLR (Pt. 801) p. 221;
2. Udo-Akagha V. Paico Ltd. (1993) 4 NWLR (Pt. 288) p.434 and
3. Kotoye V. C.B.N (1989)1 NWLR (pt. 98) p. 419.
Furthermore, with due respect to learned counsel for the respondent, I do not agree with her that throughout the proceedings at the trial court, the attitude of the appellants showed that they made no attempt to put in any defence which indicated a deliberate lack of interest, non-challance, lukewarmness and thereby slept on their rights. This is far from being the correct assessment of the conduct of the appellants who actually entered an appearance, filed and served a statement of defence, engaged the services of legal practitioners and appeared in court through their counsel and personally on some hearing dates.
It is my considered view, with due respect to the learned trial Judge, that His Lordship did not exercise his discretion judicially and judiciously in refusing the application of the appellants for adjournment to know the decision of the Chief Judge of Kogi State regarding the request to transfer the case from the trial court. With due regard to the competing interests of the parties and the need to 1do substantial justice in the matter, the appellants were obviously denied fair hearing. The proceedings of the trial court starting from 11/2/04 when the respondent opened his case to 17/6/04 when judgment was delivered in favour of the respondent come to naught, are null and void as the proceedings violated the appellants’ right to a fair hearing.
On issue two(2), having found under issue one(1) that the appellants were denied the opportunity to present their own side of the case leveled against them by the respondent before the trial court, it can not be said that the case was heard on the merit “stricto jure”. Therefore, proper or complete evidence not having been adduced at trial, this Court is not clothed with competence to determine issue two (2). It does not fall within the domain of this Court, an appellate Court to take up for consideration the issue of evidence in the case; this is the duty of the trial court.
For the above and the fuller line of reasoning and conclusions in the lead judgment, I am of the view as quite rightly pointed out by my learned brother, Mary U. Peter-Odili JCA, that this appeal is meritonous and it is hereby allowed. The judgment of the trial court being a nullity is hereby set aside; while I abide by the consequential orders of my learned brother in the said lead judgment.