PASTOR MICHAEL ANI & ANOR v. CHIEF (MRS.) PHILOMINA EFFIOK (2011)

PASTOR MICHAEL ANI & ANOR v. CHIEF (MRS.) PHILOMINA EFFIOK

(2011)LCN/4445(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 6th day of April, 2011

CA/C/50/2009

RATIO

RECORD OF APPEAL: WHETHER THE APPELLATE COURT CAN READ INTO A THE RECORD OF APPEAL WHAT IS MISSING THEREFROM OR OMIT FROM THE RECORD WHAT IS CLEARLY EMBEDDED THEREIN

The law is firmly established that parties and the court are bound by the record of appeal. Thus, an appellate court is debarred and disentitled from reading into the record of appeal what is missing therefrom or omit from the record what is clearly embedded therein, until the contrary is proved. see ogolo v. Fubara (2003) 4 NWLR (pt. 831 ) 231; Gonzee Ltd. v. NERDC (2005) 13 NWLR (Pt.943) 634. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

SERVICE OF COURT PROCESS: DUTY OF THE COURT TO ENSURE THAT THERE WAS PROPER SERVICE OF THE RELEVANT COURT PROCESS ON THE OTHER PARTY

The law and practice are settled for all times, that it is the bounden duty of a court to confirm and or verify, that there is proper proof of service of the relevant court process on the other party who may be affected by the outcome of a proceeding before the court. Thus, where a party was neither present in court nor represented by a counsel, the court should not rely simply on the viva voce statement by its registrar, that there was service of the requisite court process. Rather, the court itself, should examine the proof of service which must be placed before it, in order to determine and satisfactorily too that the process was actually served and the particular person who was served, with what and when the said service was effected. Importantly, the conduct of all these steps should be borne out by the trial court’s record of proceedings. See F. B. N. Plc v. T. S. A. Industries Ltd. (2007) 15 NWLR (pt . 1216) 247. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

ADDRESS OF COUNSEL: ESSENCE OF THE ADDRESSES OF COUNSEL AT THE END OF A HEARING

SERVICE OF COURT PROCESS: EFFECT OF THE FAILURE TO SERVE A COURT PROCESS ON THE ADVERSE PARTY

Where failure to serve a requisite court process is required, failure to serve goes beyond mere procedural irregularity. It goes to the root of the case and affects the core essence of the court’s jurisdiction. Proceedings in such a case, be it initial or continual is a nullity and will suffer the consequence of being set aside no matter how well conducted. See Atser v. Gachi (1997) 6 NWLR (Pt.510) 609; Union Bank Ltd. v. Nwaokoto (1995) 6 NWLR (pt. 400) 127. Thus, where the proceedings before a trial judge has been adjudged to have been conducted in breach of principles of fairness and impartiality, the proper order to be made by an appellate court is one of retrial before another judge. see Salu v. Egeibon (1994) 6 NWLR (Pt.348) 23 PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

RECORD OF APPEAL: WHETHER THE PARTIES AS WELL AS THE APPELLATE COURT ARE BOUND BY THE PRINTED RECORD OF APPEAL; DUTY OF THE APPELLATE COURT TO CONSIDER ALL THE ISSUES RAISED IN AN APPEAL ON THEIR MERITS, BEFORE DECIDING THE FATE OF THE APPEAL

The practice has been firmly established, that both the parties and an appellate court are bound by the printed record of appeal. See Onwuka,v. Ononuju (2009) 11 NWLR (Pt. 1151) 174. Unless, where the same has been successfully challenged. Also, that an appellate court has the bounden duty to consider the issues raised in an appeal on their merits, before ,deciding the fate of the appeal. This is regardless of whether the respondent has filed a brief of argument or not. See Salau v. Para -koyi (2001) 13 NWLR (Pt.860) 215. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.

JUSTICES

JA’FARU MIKA’ILU Justice of The Court of Appeal of Nigeria

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

1. PASTOR MICHAEL ANI
2. REGISTERED TRUSTEES OF THE NEW COVENANT MINISTRY, CALABAR Appellant(s)

AND

CHIEF (MRS.) PHILOMINA EFFIOK (DECEASED)
(SUBSTITUTED BY MR. PIUS EWA EFFIOM) Respondent(s)

MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of His Lordship, D. N. Eyamba Idem, Chief Judge of High Court of Justice, Calabar, delivered on 16th May, 2006 in Suit No. HC/396/2003, wherein judgment was entered in favour of the plaintiff by the grant of declaration of entitlement to the statutory right of occupancy in respect of the land situate at No. 4 Eta Okon Street, Calabar, Calabar South Local Government Area, declaration that the erection of a permanent church building thereon by the defendants is illegal and the award of N15,000.00 as general damages.
At the trial court, the reliefs claimed by the plaintiff against the defendants as endorsed on the issued writ of summons and paragraph 13 of the statement of claim subsequently filed thereto are reproduced below:
“(13) The defendants activities on the land particularly the illegal erection of a permanent church defendants trespassers and liable to damages.
Consequent upon the alleged wrongful acts of the defendants, the plaintiff has suffered loss and damages and claim form the defendants the following:-
(a) A Declaration that the plaintiff is entitled to the statutory right of occupancy over the parcel of land situate at No.4 Eta – Okon Street, Calabar South Local Government Area.
(b) A Declaration that the erecting of a permanent church building on the plaintiff parcel of land at No.4 Eta – Okon Street despite he pendency of the suit is illegal and without the consent of the plaintiff is a breach of contract. (sic)
(c) N20 Million (Twenty million) general and special damages.”
Before the trial court, the plaintiff testified in support of her claim and also tendered various documents which were marked and admitted as exhibits. The defendants who had hitherto filed their statement of defence, wherein they denied virtually all the averments contained in the plaintiff’s pleadings, also testified by calling one defence witness and tendered various documents as exhibits before the trial court.
At the end of it all, the trial court’s decision, favoured the plaintiff. The defendants were dissatisfied with the said judgment.
They obtained leave of this Court to file their notice and grounds of appeal out of time. Upon the grant of the said leave on 17th February, 2009, the defendants filed their notice of appeal, which contained two grounds of appeal on 23rd February, 2009. It is to be noted, that during the hearing of the matter before the trial Court, the 1st defendant died and he was substituted with the 1st appellant herein. Also, while the appeal was pending before this court, the plaintiff too died and she was substituted by the present respondent. Henceforth in this judgment, the defendants shall be called the appellants, while the plaintiffs before the trial court will be referred to as the respondent.
From the two grounds of appeal contained in the notice of appeal, two issues were formulated for determination. They are:
1. Whether the defendants were given fair hearing when the court below did not even order hearing notices to be issued when the defendants and counsel were absent.
2. Whether it was correct for the court to make out a case for the plaintiff in the lower court.
On the 30th November, 2010, this Court granted appellant’s application, brought by way of motion on notice and filed on 16th July, 2010, wherein it was prayed that the appeal be heard and determined on the brief of argument filed by the appellants alone, since the respondent has failed or neglected to file any brief of argument in response thereto. Also on 13th January, 2011 when the appeal matter came up for hearing before us, when we were satisfied that the respondent has been duly served with hearing notice against the day’s sitting, we proceeded with hearing of the appeal. Learned counsel for the appellant, A.. B. Cohbam Esq. adopted and relied on appellant’s brief of argument which was filed on 23rd April, 2009. In his oral amplification on the appellants’ brief, learned counsel for the appellants referred to page 65 of the record of appeal and stated that on the date mentioned therein, he was in coma and on admission in the hospital receiving treatment and as such, ho service of court process could have been effected on him under that condition. It was urged on us, that the appeal be allowed with the setting aside of the lower court’s decision.
Regarding the two issues formulated above, let me state, that if I come to the conclusion that there was no fair trial or that the trial was somewhat inconclusive, there would be no cause to give further consideration to the second issue. Howbeit, if I should come to the conclusion that there was a fair trial and the trial was conclusive, notwithstanding the complaints of the appellants herein and the absence of address by their learned counsel, I shall then proceed to consider the second issue.
On the first issue, the appellants owe the bounden duty to establish that they were not given fair hearing by the trial court.
Learned counsel for the appellants referred to page 65 of the record of appeal and quoted what was stated therein by the learned trial Judge in the judgment of the trial court thus:
“Thereafter this case was subsequently adjourned till 25/4/2005 for the defendant’s counsel’s address. This was not forthcoming due to persistent absence of defendant’s counsel irrespective of Hearing Notices issued and served on the defendants through counsel A.B. Cohbam Esquire. On 14/4/05. U.B Eba of counsel for the plaintiff applied to address the court on the next adjourned date. This was allowed and adjourned till 21/11/05 and thereafter 12/12/05. However counsel chose to abandon his address and urged the court to enter judgment on facts as presented.”
It was then pointed out, that with the adjournment having been brought back from 25th April, 2005 to 14th April, 2005, the parties should have been notified of the new date. Learned appellants’ counsel expressed surprise, as to how the learned counsel for the respondent got wind of the new date and was opportuned to have participated and proceeded with hearing in the matter on the said date.
It was the submission of the learned counsel for the appellants, that their right to fair hearing guaranteed by section 36 of the 1999 Constitution has been seriously breached on the ground that part of the hearing before the trial court, was conducted in the absence of the appellants. It was then submitted that the entire proceeding has been rendered a nullity. Authorities of Oneyemeh & Ors. V. Egbu – chulam & ors. (1996) 37 LRCN 563/568, (1996) NWLR (pt. 448) 255/269 and Ikweki v. Ebele (2005) 11 NWLR (pt. 936) 397) to buttress the point that parties to an action must be given fair hearing which includes the observance of the rule of audi ateram partem, the breach of which lies at the heart of the Nigerian judicial system. It was added, that once it is breached, it does not matter and it is immaterial whether the decision reached thereafter is correct. It was urged on us that this issue as argued, be resolved in favour of the appellants.

I have carefully perused the record of appeal and noted the adjournments in this matter as contained therein. Hearing before the trial court ended on 13/04/2005 and the matter was adjourned to 25/04/2005 for address. On the following dates, 25/04/2005, 25/05/2005, 15/06/2005, 05/07/2005, 27/07/2005 and 27/09/2005, the trial court did not sit for one reason or the other and the matter was variously adjourned by the court registrars. On 10/10/2005, when the court did sit, the appellants’ counsel was absent. The case was adjourned to 24/10/2005 for address upon the application made for the same by the respondent’s counsel. N5,000.00 costs was awarded against the absent appellants. On 24h 0/2005 the court did not sit and the matter was adjourned to 14/11/2005 by okon Itu the Higher Registrar. On 14/11/2005, the appellants’ counsel was absent and the matter was adjourned to 21/11/2005 for the last time for address and with the order that appellants counsel shall be served. On 21/11/2005, learned counsel for the appellants wrote for an adjournment and the matter was adjourned to 12/12/2005. On the said 12/12/2005, the court did not sit, “due to Bar conference” and the matter was further adjourned by the court clerk to 11/01/2006.
There was no record with regard to what transpired on 11/01/2006.
Then on 15/02/2006 the matter was adjourned to 28/03/2006 for judgment on the application of respondent’s counsel who applied for judgment, “since the defendant has persistently failed to address the court”. The respondent’s counsel also, did not address the court. Judgment in the matter was eventually delivered on 16/05/2006. The law and practice are settled for all times, that it is the bounden duty of a court to confirm and or verify, that there is proper proof of service of the relevant court process on the other party who may be affected by the outcome of a proceeding before the court. Thus, where a party was neither present in court nor represented by a counsel, the court should not rely simply on the viva voce statement by its registrar, that there was service of the requisite court process.
Rather, the court itself, should examine the proof of service which must be placed before it, in order to determine and satisfactorily too that the process was actually served and the particular person who was served, with what and when the said service was effected.
Importantly, the conduct of all these steps should be borne out by the trial court’s record of proceedings. See F. B. N. Plc v. T. S. A. Industries Ltd. (2007) 15 NWLR (pt . 1216) 247.

It is noteworthy and pertinent too, that the addresses of counsel at the end of a hearing is not a bonus, cosmetic, luxury or routine, but rather a legal and indeed constitutional requirement. In its inexplicable absence, the trial conducted by a trial court, cannot be regarded as having been conclusively concluded. Indeed, an address by counsel at the close of evidence forms part and parcel of the hearing before the court and its potentials, immense and enormous values cannot be readily quantified. This is more so, since its absence can tilt the balance of the trial court’s judgment and in a similar manner as its effective delivery after the close of the cases for the parties, can direct, focus attention or open new vistas in a case, based on the evidence placed before the court. It is completely a different scenario, where one or both learned counsel for the parties waived or declined his right thereto. See Agbogu V. Adichie (2003) 2 NWLR (Pt. 805) 509.
Thus, in the instant case, it can be argued that if adequate opportunity had been given to the appellants for the delivery of the address and if utilized, it would have somewhat advanced the position of appellants’ case and thereby shed some light or focus on it. In my view, that possibility or likelihood had been foreclosed in the given circumstances of this case. At the crucial point in this matter, that is on 15/02/2006 when the matter was subsequently adjourned for judgment on 28/03/2006 at the instance of the learned counsel for the respondent who declined/waived his right to address the trial court and rather applied for judgment which was eventually delivered on 16/05/2006. In the given circumstance, the trial court should have satisfied itself that the learned counsel for the appellants was duly served with hearing notice against the day’s sitting. This is more so, when going by the record of appeal, when the matter was adjourned on 21/11/2005 to 12/12/2005, the court did not sit on the said adjournment date and the matter was adjourned to 11/01/2006 for address by the court clerk, one Veronica P. Eyo. There was no indication in the record of appeal as to what transpired on the said 11/11/2006 before the penultimate one of 15/02/2006 when the matter was finally adjourned for judgment. I am of the mindset, that the proper thing which the trial court ought to have done, was to further adjourn the case to another date for effective service of hearing notice on the learned counsel for the appellants’ and thereby put them on notice with regard to the new date fixed for hearing/address. It is thus my respectful view, that the procedure adopted by the trial court in its handling of this matter is not in strict compliance with the constitutional provisions for fair hearing as contained in Section 36 of the 1999 constitution of the Federal Republic of Nigeria and Section 294(1) of the same, which provides for final addresses after the conclusion of evidence. Where failure to serve a requisite court process is required, failure to serve goes beyond mere procedural irregularity. It goes to the root of the case and affects the core essence of the court’s jurisdiction. Proceedings in such a case, be it initial or continual is a nullity and will suffer the consequence of being set aside no matter how well conducted. See Atser v. Gachi (1997) 6 NWLR (Pt.510) 609; Union Bank Ltd. v. Nwaokoto (1995) 6 NWLR (pt. 400) 127. Thus, where the proceedings before a trial judge has been adjudged to have been conducted in breach of principles of fairness and impartiality, the proper order to be made by an appellate court is one of retrial before another judge. see Salu v. Egeibon (1994) 6 NWLR (Pt.348) 23

Similarly, there is an embedded right in the parties for the making of final addresses. Section 294 (1) of the 1999 constitution as judicially construed by the apex court and this court, vests such a right to make final addresses in the parties. Thus, where one of the parties was accorded the opportunity to make his final address, the other party, must also be given similar opportunity to reply or give his own final address before the pronouncement of judgment by the trial court. Thus, where in the course of a proceeding, an address ought to have been given and the same has been denied or refused to the party who is so entitled for no just cause or justifiable excuse, any decision reached therein will amount to a breach of the right to fair hearing entrenched in section 36 of the 1999 constitution ‘and will obviously vitiate the proceedings.

In the instant case, it has not been shown on the printed record which I have thoroughly perused, that the appellants were duly served with the requisite hearing notices as required by law. Also, that the trial court was duly satisfied with the proof of service Placed before it.
The practice has been firmly established, that both the parties and an appellate court are bound by the printed record of appeal. See Onwuka,v. Ononuju (2009) 11 NWLR (Pt. 1151) 174. Unless, where the same has been successfully challenged. Also, that an appellate court has the bounden duty to consider the issues raised in an appeal on their merits, before ,deciding the fate of the appeal. This is regardless of whether the respondent has filed a brief of argument or not. See Salau v. Para -koyi (2001) 13 NWLR (Pt.860) 215.

In view of the foregoing, I am of the view point, that the failure to notify and served requisite hearing notices appertaining to adjournments in the instant matter on the appellants herein, coupled with failure to have afforded similar opportunity to the appellants, to address the trial court, as it was done to the respondent’s, counsel who waived it, was not only unconstitutional but also vitiated the judgment in question and rendered it null and void. Thus, with the resolution of the first issue in favour of the appellants, it becomes unnecessary for me to give further consideration to the second issue which touched on the merits of the case and the judgment pronounced thereon by the trial court.
In the premise, the appeal therefore succeeds and it is hereby Allowed judgment of D.N. Eyamba – Idem, CJ, in Suit No. HC/396/2003 is set aside and fresh trial before another Judge of the Cross River State High Court is hereby ordered. There shall be no order as to costs.

JA’FARU MIKA’ILU, J.C.A: I have read in draft the lead judgment of my learned brother Massoud Abdulrahman Oredola, JCA. I agree with the reasons therein and the end conclusion. The appellants’ right to fair hearing has been infringed upon by the lower court. The appeal is allowed. The Judgment of the lower court I set aside. Fresh trial by another Judge is ordered. I make no order as to costs.

ISAIAH OLUFEMI AKEJU, J.C.A.: I had the privilege of reading the draft of the judgment of my learned brother, Massoud Abdulrahman Oredola, JCA. I agree with the reasoning of my learned brother, and the conclusion that the appeal has merit and should be allowed. I allow the appeal and abide by the consequential orders. I make no order as to costs.

Appearances

A. B. COBHAM ESQ.For Appellant

AND

ABSENT AND UNREPRESENTED.For Respondent