ALHAJI AHMADU MUSA V. ALHAJI BUKAR DALWA & ORS.
(2010)LCN/3680(CA)
In The Court of Appeal of Nigeria
On Thursday, the 1st day of April, 2010
CA/J/242/2001
RATIO
JUSTICE: THE NATURE OF NATURAL JUSTICE/FAIR HEARING
Natural justice/fair hearing demands that a party must be heard before the case against him is determined, the Audi Alteram partem rule simply means please hear the other side. See F.C.S.C.V. Laoye 1989 2 NWLR Pt. 106 P 652, Akande v State 1988 3 NWLR pt. 85 P 681. Isiyaku Mohammed v Kano N. A. 1968 1 All N. L. R. P 42. PER HON. JUSTICE BODE RHODES-VIVOUR, J.C.A.
PROCEDURE: EFFECT OF FAILURE TO GIVE NOTICE OF PROCEEDINGS WHERE SERVICE OF PROCESS IS REQUIRED
The position of the Law is that failure to give Notice of proceedings to the opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void. This is so because in the absence of service the Court would have no jurisdiction to entertain the case. See. Obimonure v. Erinosho 1966 1 ANLR P. 250, Scott – Emuakpor v Ukaibe 1975 2 SC P 41. PER HON. JUSTICE BODE RHODES-VIVOUR, J.C.A.
JURISDICTION: WHEN WILL A COURT BE SAID TO HAVE JURISDICTION
The Court is said to have jurisdiction in a matter when:-
(1) It is properly constituted as regards the number and qualifications of the members.
(2) The subject matter of the case is within its jurisdiction and;
(3) The case comes before the Court initiated by due process of law. Madukolu vs. Nkemdilim (1962) 2 SCN LR Pg 341. PER UZO NDUKWE-ANYANWU, J.C.A.
JUSTICES
ZAINAB ADAMU BULKACHUWA Justice of The Court of Appeal of Nigeria
BODE RHODES-VIVOUR Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
Between
ALHAJI AHMADU MUSA Appellant(s)
AND
1. ALHAJI BUKAR DALWA
2. MODU GONIMI
3. GONI BUJI Respondent(s)
HON. JUSTICE BODE RHODES-VIVOUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against a judgment of K. M. Kolo, Chief Judge Borno State (as he then was) given on the 21st day of July, 1998 whereby judgment was entered for the Plaintiffs jointly and severally for the sum of N150,000.00 with costs assessed at N1,500.00. The Plaintiffs are the Respondents before this Court. The appeal, though against the whole judgment is really against the way the learned trial Judge conducted the case. The appellant complains of being denied fair hearing. In accordance with Order 17 rule 2 of the Court of Appeal Rules 2007 the appellants brief flied on the 20th of June 2003 was deemed duly filed and served on the 21st of January, 2004. The Respondents did not file a brief. Learned Counsel for the appellant formulated a sale issue for determination. It reads:
“Whether the appellant was accorded fair hearing in the conduct of the proceedings by the lower court and whether the refusal of the Lower Court to recall the Respondents for cross-examination by the appellant accords with fair hearing”
At the hearing of the appeal on the 23rd day of February, 2010 learned counsel for the appellant N. A. Dammo Esq. adopted his brief and urged us to allow the appeal.
The Respondents were absent and unrepresented at the hearing of the appeal.
In his brief, learned counsel for the appellant argued that the refusal by the learned trial judge to allow the appellant recall PW1, PW2, PW3 for cross examination amounts to denying the appellant a fair hearing. Reliance was placed on Section 36 of the Constitution.
M.G. Imo State v Nguwa 1997 2 NWLR Pt 490 p. 675 Nig. Arab Bank Ltd v Commex 19996 NWLR Pt. 608 P. 648 Nakundi v Rabiu 1998 3 NWLR Pt 543 p. 671
He submitted that since the appellant was denied fair hearing the proceedings in the Court below are null and void ab initio.
In a considered Ruling delivered on the 7th day of May, 1997 the learned trial judge dismissed the appellants application to recall PW1, PW2 and PW3 for cross-examination.
This is what His Lordship had to say:
“…Court business is a serious matter. It is firm and steadfast. If a party were put on Notice for the date of hearing and the party refused failed or neglected to appear, such a party cannot be heard to say he was not given opportunity to cross-examine the witnesses nor could he be heard to say that he was not afforded a fair hearing.. Once a court is satisfied that a party is served with the appropriate notice the court would forge ahead as it is not for the Court to wait for the parties and their counsel rather it is for the parties to wait for the court. It is therefore my view that in the instant case there is no basis to recall the Plaintiffs who testified on their own behalf in the absence of the defendant who was aware of the date but chose to be absent. There is no compelling reason to recall the said Plaintiffs for the purpose of cross-examination. That opportunity had slipped away and slipped away for ever …”
The above explains why the learned trail Judge did not allow the appellant to recall PW1, PW2, PW3 for cross-examination. ”
It is apposite I review proceedings in the Court below. The writ of Summons and statement of claim were served on the appellant (a fact not denied by the appellant). On the 9th of October, 1996 trial commenced.” Records of appeal show that the appellant was served, but was absent and, unrepresented. PW1, PW2, PW3 gave evidence on Oath. On the 13th of January, 1997 the appellants counsel was present in Court. He informed the Court that he had an application to file statement of defence out of time. The Motion was heard on the 16th of January, 1997 and granted. Appellant’s motion to recall PW1, PW2, PW3 for cross-examination was heard on the 22nd of April 1997 and dismissed in a considered ruling, delivered on 7th of May 1997. The following witnesses (which included the Respondents) testified for the Respondents during trial.
1. Alhaji Bukar Dahoa
2. Modu Ganemami
3. Goni Buji
4. Abdullahi Ladu Bukar
5. Modu Gana Dan Azumi
6. John Aliya
Nos. 4, 5, and 6 were cross-examined by Mr. Dada Learned Counsel for the appellant (see pages 13, 14, and 16 of the Record of Appeal).
After the Respondents closed their case, Mr. N. A. Dammo appeared for the appellant. Two witnesses testified for the appellant. Yerima Tela Mohammed and the appellant Counsel addressed the Court thereafter and then judgment was delivered on the 21st of July 1998.
The position of the Law appears clear that in civil cases, a Judge cannot call or recall a witness but there is the power to do so under Section 223 of the Evidence Act. Great caution is called for, and the Judge must strive to be detached and on no account usurp the functions of counsel. The end result being to see that justice is done between the parties.
See Tiwani Ltd v C.T.M.B. Ltd. 1997 8 NWLR Pt 515 p. 140 – Tabaa v Lababedi 19744 SC P.139
Furthermore, a Judge can only call a witness with the consent of the parties. See I. Omoregbee v. D.P. Lawani 1980 3- 4 SC P 108.
In criminal trials, a Judge has wider powers in that by virtue of the provisions of Section 200 of the Criminal Procedure Act, and Section 237(1) of the Criminal Procedure Code he can summon anyone as a witness and recall and re-examine any witness already examined. Again this power should be exercised with caution, and on no account to assist the prosecution proves his case. See Akinfe v State 1988 3 NWLR Pt.85: P 729.
These are discretionary powers and they must be used judicially and not arbitrarily. These sections supra should only be invoked where the aim is to discover relevant facts or obtaining proper proof of such facts.
Now, the grant of an application to recall a witness is at the discretion of the court. That is to say the Judge must at all times act judicially and judiciously. Judicial and judicious exercise of discretion is an exercise of discretion with correct and convincing reason.
All applications that are granted or refused at the discretion of the Court have rules governing them. In this case a party seeking to have a witness recalled must:-
(a) Supply the Court with good enough facts as to why he wants the witness recalled.
(b) What questions he intends to ask the witness.
It is only on (a) and (b) that the trial Judge can exercise his discretion to grant the application. In this matter the appellant gave three reasons why he wants PW1, PW2, and PW3 recalled for cross-examination. They are:
1. That he had no counsel on the day the Respondents testified.
2. That he was unable to reconcile with his counsel who had withdrawn his services.
3. That when he reconciled with his counsel the Respondents had testified and were not cross-examined.
On (1) he did not explain why he was not in Court on the 9th of October, 1996 and did not have the decency to inform the Court why he was unable to attend Court.
On (2) the Memorandum of appearance was signed by appellants counsel (dated 8/3/95).
Trial commenced on 9/10/96. He has not said when his counsel withdraws his services.
On (3) He has not said when he reconciled with his counsel.
It is clear the appellant has not given any reason for his absence when PW1, PW2, and PW3 testified and has not stated why he wants the witness recalled, or what purpose they would serve in settling the dispute.
In discretionary matters an indulgence can be granted when credible excuse is given. A Judge cannot or should not act as he likes. In the circumstances the learned trial Judge was right to refuse to recall PW1, PW2 and PW3 for cross-examination.
I now turn to consider whether the refusal by the learned trial judge to recall PW1, PW2 and PW3 amounts to denying the appellant fair hearing.
Section 36 of the Constitution state that:
36(1) 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 bylaw and constituted in such manner as to secure its independence and impartiality.
The above is guaranteed and observed in all civilized societies. Indeed, the whole concept of fair hearing, audi alteram partrem rule has its roots in the Old Testament. See Genesis 3: 8 – 14. The Lord gave Adam an oral hearing despite overwhelming evidence by his act of covering his nakedness after eating the forbidden fruit.
Natural justice/fair hearing demands that a party must be heard before the case against him is determined, the Audi Alteram partem rule simply means please hear the other side. See F.C.S.C.V. Laoye 1989 2 NWLR Pt. 106 P 652, Akande v State 1988 3 NWLR pt. 85 P 681. Isiyaku Mohammed v Kano N. A. 1968 1 All N. L. R. P 42.
The position of the Law is that failure to give Notice of proceedings to the opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void. This is so because in the absence of service the Court would have no jurisdiction to entertain the case. See. Obimonure v. Erinosho 1966 1 ANLR P. 250, Scott – Emuakpor v Ukaibe 1975 2 SC P 41.
In this case the appellant was served with the writ of summons and statement of claim and trial was fixed for the 9th day of October 1996 (facts not denied by the appellant). On 9/10/96, the appellant and his counsel were absent in Court. PW1, PW2 and PW3 gave evidence, but there was no one to cross-examine them.
Once a party is served process and does not attend court on the hearing date or bother to write to the Court to explain his absence, he cannot be heard to say that he was denied fair hearing because he was not given an opportunity to cross-examine witnesses who gave evidence when he was absent in Court. It is the appellant who was served process that denied himself a fair hearing and not the Judge. The learned trial Judge was perfectly correct to dismiss the application to recall PW1, PW2 and PW3.
Counsel and Litigants would do well to always remember that the Court keeps to its schedule and they are expected to arrange their affairs, to fall in line with it and not expect the Court to wait on them. This appeal fails and it is dismissed. There shall be no order on costs.
ZAINAB A. BULKACHUWA, J.C.A.: I have been privileged to read before now the draft of the judgment just delivered by my learned brother Rhodes-Vivour J.C.A. I agree that the appeal lacks merit and ought to be dismissed. It is dismissed by me. I make no order as to costs.
UZO NDUKWE-ANYANWU, J.C.A.: I have had the privilege of reading in draft form, the judgment just delivered by my learned brother, Rhodes-Vivour, JCA. I agree that fair hearing is a fundamental pillar of justice in our legal System.
Parties to every suit must be given adequate notice as to the date the proceedings will take place. Failure to give notice of proceedings to an opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void because the Court has no jurisdiction to entertain it. See the cases of Tubonemi Dikebo (2006) 5 NWLR. Pt. 974 Pg 565; Ononye vs. Chukwuma (2005) 13 NWLR Pt. 953 Pg 90; Idiata vs. Ejeko (2005) 11 NWLR Pt. 936 Pg 349; Mark Vs. Eke (2004) 5 NWLR Pt. 865 Pg 54.
I agree totally with the trial Judge that ‘Court business is a serious matter’. There were no compelling reasons placed before the Court to enable it to exercise its discretionary powers to recall PW1, PW2 and PW3 for cross examination. Once a party is duly put on notice about the date fixed for his matter the Court has performed its duty. If a party fails or neglects to appear and partake in the suit which he is a party, he cannot turn round to scream that the Court has not accorded him fair hearing. The Court cannot wait for a tardy litigant, once the court is satisfied that the appropriate notice has been served on the parties.
The Court is said to have jurisdiction in a matter when:-
(1) It is properly constituted as regards the number and qualifications of the members.
(2) The subject matter of the case is within its jurisdiction and;
(3) The case comes before the Court initiated by due process of law. Madukolu vs. Nkemdilim (1962) 2 SCN LR Pg 341.
In the instant case, the Appellant was served with hearing notices as to the adjourned dates his case was to be heard. He failed to take the opportunity to appear in Court and defend. himself. A Court cannot force an unwilling litigant to Court to take his case. The litigant cannot therefore turn around and state that he was not afforded fair hearing.
For this and all the more comprehensive reasons in the lead judgment, I must also dismiss this appeal, it lacking in merit. I abide by the order as to costs in the lead judgment.
Appearances
D. U. Egbele Esq.;
Kuku Esq.For Appellant
AND
A. Akam Esq.;
O. I. Azasi Esq.For Respondent
