MR OLAOLU AMUSAN AYOOLA v. MR GABRIEL O. AJIBARE
(2012)LCN/5631(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 30th day of October, 2012
CA/IL/54/2011
RATIO
”A party who was in court when his matter was adjourned to a particular date, cannot turn around to claim that he is not aware of the date of adjournment.” Per GALINJE J.C.A
”..fair hearing lies in the procedure followed in the determination of the case and not in the correctness of the decision. For where a court arrives at a correct decision in breach of the principle of fair hearing, an appellate court will not save the decision in favour of the breach of fair hearing.” Per GALINJE J.C.A
CONSTITUTIONAL LAW :FAIR HEARING: WHERE THE DEFENCE OF FAIR HEARING WILL NOT AVAIL A PARTY
”The law is settled that a court of law can indulge a party only within the confines of its rules. 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. See Magna Maritime Ltd as Oteju (2005) 22 NSCQLR 301 @ 307, (2005) 5 S.C (pt.11) 34 (2005) 14 NWLR (pt.945) 517 where Edozie JSC held at page 320 thus:- “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.” Per GALINJE J.C.A
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
OBANDE O. F. OGBUINYA Justice of The Court of Appeal of Nigeria
Between
MR OLAOLU AMUSAN AYOOLA Appellant(s)
AND
MR GABRIEL O. AJIBARE Respondent(s)
PAUL ADAMU GALINJE J.C.A. (Delivering the Leading Judgment): The Respondent herein, who was the Claimant at the High Court of Kwara State sitting at Ilorin, claimed against the Appellant as per the writ of summons and the statement of claim both filed on the 29th day of November 2010, the following reliefs:-
“a. A declaration that the claimant is the bonafide alottee of a piece of land situate, lying and being at the University of Ilorin Temporary site layout; as described in the allocation paper issued by the Kwara State Town Planning and Development Authority, Ilorin dated 12/6/85.
b. An order declaring null and void any subsequent sale, allocation or assignment of any part or whole of the said land to the defendant without the permission, consent or authority of the claimant as well as the destruction of the Claimant’s development on the land.
c. An order of this honourable court directing the removal or demolition of the structure erected or affixed on the land by the defendant, his agent and privies.
d. Special damages in the sum of Eighty-Nine Thousand Naira Only (N89,000.00) being the current cost of the following claims
i. 200 pieces of building block (9 inches) at N100 N 20,000.00
ii. Bags of cement at N1,500 N22,500.00
iii. 1 load of gravel N9,000.00
iv. 1 load of sharp sand N4,000.00
v. 1 load of soft sand N3,500.00
vi. Workmanship N30,000.00
= = = = = = =
N89,000.00
e. General damages in the sum of N500,000.00 (Five Hundred Thousand Naira Only) being the cost additional expenses as a result of increment in prices of materials to reconstruct the development, as destroyed.”
The claims were front loaded with the statement on Oath of the Respondent. Annexed thereto are the following documents:-
1. Kwara state Town Planning and Development Authority letter of allocation to the claimant dated 12/6/85
2. Kwara State Government Revenue Receipt Nos 3826 and 3634 dated 13/6/85
3. Approved building plan dated 4/6/85
4. Kwara State Government Revenue Receipt No. RG001815376 of 14/5/2010.
5. Two copies of photograph together with their negatives.
At the pre trial conference that was held on the 31/1/2011, the Appellant and his counsel were not in attendance despite being served, with notice. It was as a result of the non appearance of the Appellant, as borne by the record of this appeal at page 120, that learned counsel for the Respondent asked for judgment in accordance with Order 33 Rule 7 (1)(b) of the Kwara State High Court (Civil Procedure) Rules 2005. However, the lower court ruled that the Respondent had to prove his claims which were set up as special damages.
The Respondent herein gave evidence in support of his statement on Oath and the supporting documents and closed his case. Appellant did not call evidence. At the end of the trial, the learned trial judge Umar J in a reserved and considered judgment held that the Respondent had proved, his case and was therefore entitled to judgment. Learned trial judge entered judgment for the Respondent as per the writ of summons except for special damages which he said was not proved. In addition the sum of N150,000 was awarded to the Respondent as general damages.
The Appellant is dissatisfied with the decision of the trial court. Being aggrieved he has brought this appeal. His notice of appeal, which is at pages 128-129 of the record is dated and filed on the 25th July 2011. It contains only one ground of appeal which I reproduced hereunder as follows:-
“The High Court erred in law when the court denied the Appellant right to fair hearing and shut him out.”
PARTICULARS
i. The Appellant filed a motion on noticed (sic) dated and filed 23rd day of June 2011 served the Respondent (Claimant at the lower court) the said motion.
ii. The Honourable Court refused to hear the said motion despite same being noticed and even expressly brought before the knowledge of the court.
iii. The Appellant, having served the Respondent the said motion on notice as required by the rules, the Respondent did not oppose to the hearing of the said motion.
iv. The Honourable court contravened section 36 of the constitution of Federal Republic of Nigeria, 1999 – (as amended).
Parties filed and exchanged briefs of argument. Mr Raheem Ismaila, learned counsel for the Appellant, who also settled the Appellant’s brief of argument, formulated one issue for determination of this appeal at paragraph 3.01 of the said brief which is dated 27th March, 2012 and filed on the 27th March 2012. The sole issue reads thus:-
“Whether the Appellant’s constitutional right to fair hearing had not been breached considering the circumstance surrounding the trial of this case.”
For the Respondent two issues were formulated at page 7 paragraph 2.0 of the Respondent’s brief of argument dated 15th May 2012 and filed on the 16th May 2012. They read as follows:-
1. “Whether the Appellant’s constitutional right to fair hearing was ever breached considering the circumstances surrounding the trial of this suit
2. Whether the trial court’s had not considered the Appellant’s application to arrest judgment; having ruled that the Appellant (sic) counsel had no proper application before the court worthy of consideration.”
The Appellant has formulated one issue only from the sole ground of appeal he raised. This is in order. He is the aggrieved party and the appeal is his. However the Respondent who has not filed a cross appeal seems to be weeping more by formulating two issues from one ground of appeal. This is not permissible. The issues for determination in an appeal must of necessity be limited by, circumscribed and fall within the scope of the grounds of appeal. It is therefore, not envisaged that the issues for determination will be more in number than the number of grounds of appeal on which they are based. Consequently issues for determination should not outnumber the grounds of appeal filed.In the instant appeal, the Respondent has formulated two issues from one ground of appeal. No wonder he was unable to marry the issues to the ground of appeal. The first issue distilled by the Respondent is similar to the sole issue formulated by the Appellant. I will spare that issue in order to do justice between the parties. The 2nd issue is at large and it is hereby struck out as it does not arise from the sole ground of appeal.
Since the issue formulated by the Appellant is the same as the 1st issue formulated by the Respondent, I will treat them together.
In arguing the appeal, Mr. Raheem Ismaila, learned counsel for the Appellant submitted that the Appellant had no knowledge of the Respondent’s motion on notice which was moved on 13th January 2011, as the Appellant and his counsel were not in court. This according to the learned counsel, amount to a denial of fair hearing to the Appellant. In support of this view, learned counsel cited the authority in PDP vs Abubakar (2007) 41 WRN 61 @ 95.
In a further argument learned counsel drew the court’s attention to the ruling delivered on the 21/1/2011, which he said is a further breach of the Appellant’s/Applicant’s right to fair hearing, when that ruling was premised on the information received from the Respondent’s counsel. According to the learned counsel, there were no facts placed before the trial court establishing the truthfulness of the information it received from the Respondent and the erroneous belief prompted the court to allow the Respondent to proceed with the case.
Learned counsel insists that the Appellant was not served with hearing notice for the proceedings of 13th January 2011, and the court did not record the basis of its satisfaction. It is the learned counsel’s further submission that the Appellant was not put on notice against the pre-trial conference which was fixed on the 13th January 2011 and that accounted for the absence of the Appellant and his counsel at the proceedings of 30th January 2011. It is the learned counsel contention that where proceedings in any matter are conducted without service on any of the parties, such, proceedings are a nullity. In aid learned counsel cited F.M.B.N vs. Kasumu (2006) 6 WRN 62 @ 77 lines 10-25, Eigbe vs NUT (2006) 48 WRN 128 @ 55, Odessa v. FRN (2006) 27 WRN 33 @ 64.
Still in argument, learned counsel submitted that the Appellant filed two motions on the 23rd June 2011. The first one sought for the arrest of the judgment that was set to be delivered on the 30tn June, 2011 and the second motion prayed for extension of time within which the Appellant would file and serve his memorandum of appearance, statement of defence, Defendants statement on oath, list of witnesses and list of documents. According to the learned counsel, the failure of the trial court to take and dispose of the applications mentioned above before the proceedings of 21/07/2011, has rendered such proceedings a nullity. In aid learned counsel cited Ekanem vs Akpan (1991) 8 NWLR (Pt.211) 611.
Finally learned counsel submitted that the right to fair hearing is a constitutional right which must not be trampled upon, and if breached, the trial in respect thereto will be a nullity. In aid learned counsel cited O.R.L. vs N.C.C (2007) 18 WRN 87 @ 120. In conclusion he urged the court to allow the appeal.
Mr Abdulganiyu Bello, learned counsel for the Respondent disagreed that the right to fair hearing due to the Appellant was breached by the trial court. Learned counsel made reference to pages 98, 99, 100, 110, 111, 114, 115-117 of the record of appeal and forcefully submitted that the proceedings contained therein have clearly demonstrated that the Appellant was given an opportunity of being heard at every level of the proceedings at the lower court as such, his failure to avail himself of the opportunity he had, does not in any way constitutes a breach of fair hearing to him. In aid learned counsel cited the authority in Magna Maritime Ltd vs Oteju (2005) 22 NSCQLR 395 @ 320, Newswatch Communication Ltd vs Attah (2006) All FWLR (pt.318) 580 @ 601, Ilorin South Local Government vs Samad Paper Converting Co. Ltd (2007) 6 CLRN 113.
Both parties in this appeal have dwelt extensively on the proceedings adopted at the trial court in their argument. This I think is proper, because fair hearing lies in the procedure followed in the determination of the case and not in the correctness of the decision. For where a court arrives at a correct decision in breach of the principle of fair hearing, an appellate court will not save the decision in favour of the breach of fair hearing.
In the instant case, the Appellant’s first complaint is that there was nothing to show on the record indicating that the Appellant had knowledge of the Respondent’s motion that was moved on the 13/1/2011, as the Appellant and his counsel were not in court.
From the proceedings at pages 98-99 of the record of this appeal, both the claimant and the defendant were in court and were represented by Mr. AbdulGaniyu Bello and Mr. I. B Malik when the court extended the period of interim injunction and adjourned the motion on notice to 13/1/2011. A party who was in court when his matter was adjourned to a particular date, cannot turn around to claim that he is not aware of the date of adjournment. Learned counsel for the Appellant is uneconomical with his words, when he argued at paragraph 4.02 as follows:- ,
“There was nothing to show on the record indicating that the Appellant had knowledge of the Respondent motion that was moved on the 13/1/2011 as the appellant or his counsel was not in court. We humbly refer your lordship to page 99- 100 of the record. This is a denial of fair hearing on the part of the Appellant considering the nature of the said motion which was on notice, which from intent and purpose, was contentious…”
This submission is a figment of the learned counsel’s imagination and does not portray him as a minister in the sacred temple of justice. It is alarming to note the rate at which counsel tend to deliberately smuggle falsehood into their submissions as a way of getting decisions in their favour at all cost. This is not right and it is not in conformity with the principle of law practice.
I agree with the submission of the learned counsel for the Respondent that the Appellant was aware of the proceedings of 13th January 2011 and deliberately decided not to be present.
The Appellant’s next quarrel is with the ruling which was delivered on the 21/1/2011. According to the learned counsel, the information that was acted upon by the learned trial judge was wrongly placed before him by the Respondent’s counsel and the lower court was wrong to have acted on that information. In order to do justice to this submission, it is pertinent to reproduce part of the ruling of the 21/1/2011 as follows:-
“The Respondent did not file any counter-affidavit. The Respondent was served with the court processes since 15th December, 2010. On 23/12/2010, the Respondent was in court with one Mr. I. B. Malik who appeared for the Respondent. Mr Malik did not file any memorandum of appearance for the Respondent in the case. According to him he was just briefed the previous day. Learned counsel requested for another date to enable him put his house in order and having regard” to the process filed, he said the defendant will comply with the court order. The court subsequently adjourned to 13/1/2011. Up till now Mr. Malik, the supposed counsel to the defendant neither file (sic) any paper nor any memorandum of appearance in the case. The Respondent did not also file any memorandum of appearance as required by Order 16 Rule (1) of the rules of court. Interestingly, counsel to the applicant informed the court that the same Mr. Malik is the counsel to the Respondent in the criminal case in the magistrate court. The court having satisfied itself that the defendant was served with the necessary processes allowed the claimant to proceed with the motion in accordance with Order 17(1) of the rules of court.”
From the passage of the ruling I have painstakingly reproduced above, it will be seen once more that the learned counsel for the Respondent has tended to misrepresent the facts that led to the ruling aforesaid. It is very clear from the passage that the reasons that led to the ruling which restrained the Appellant from further interfering with the disputed land, were from the findings of the learned trial judge during the proceeding in court. The fact that the Appellant had not filed a memorandum of appearance alter the expiration of time to do so and there being no application for extension of time to file such memorandum of appearance, was enough justification for the court to proceed with the matter in his absence.
The decision was not founded on the information from learned counsel for the Applicant who merely informed the court that Mr. Malik was the Respondent’s counsel in the criminal case in the magistrate’s court.
Indeed on the 18th February 2011 the learned trial judge resisted attempt by the learned counsel to pressure him to proceed with the hearing of the case in absence of the Appellant who failed to file a memorandum of appearance and statement of defence in the following words : –
“Court- There is nothing in the court record, that the claimant complied, with the order of hearing notice. There is no return in the sorts record to that effect. Consequently the case cannot proceed to hearing until hearing notice is effectively served on the defendant and evidence of such is seen in the court record.” (see page 110 of the record of this appeal).
The case was further adjourned to 16/3/2011 for hearing. On the adjourned date, parties and their counsel were in court. Learned counsel for the Appellant produced copies of papers titled memorandum of appearance which were filed without seeking for extension of time to do so. These papers were rightly considered worthless papers that did not deserve any consideration. On the basis of the time wasting tactics of the learned counsel for the Appellant, his application for adjournment was refused and the Respondent was allowed to proceed with his case. From the record of this appeal, I am of the firm view that the lower court had given sufficient opportunity to the Appellant to defend the case that was instituted against him. This was done through service of hearing notices and all other court processes that were required to be served on the Appellant. On the authority of the Military Governor of Lagos State & Ors us Adebayo Adegiga & Ors (2003) 1 NWLR (pt.802) 589 @ 617, this court cited with approval the Supreme court authority in Obimiami Brick and, stone Nigeria Ltd vs A.C.B. Ltd (1992) 3 NWLR (pt.229) 260 where their lordships of the Apex Court held:-
“Where after both parties to a dispute have been duty parties to a dispute have been notified of the hearing date and a party for no justifiable reason decides 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 Ibekendu v. Ike (1993) 6 NWLR (Pt.299) 28.
Filing of memorandum of appearance and the statement of defence to the suit against the Appellant are provided for by the rules of the lower court, and these processes must be filed within specified time frame. From the record of this appeal, it is very clear that the Appellant did not file these processes within the prescribed period. The law is settled that a court of law can indulge a party only within the confines of its rules. 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. See Magna Maritime Ltd as Oteju (2005) 22 NSCQLR 301 @ 307, (2005) 5 S.C (pt.11) 34 (2005) 14 NWLR (pt.945) 517 where Edozie JSC held at page 320 thus:-
“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 suiting of the court or boycotts same, that party cannot thereafter be heard to complain about lack of fair hearing.”
The trial court, throughout the proceedings in this matter had passionately and patiently accorded. reasonable opportunity all the Appellant to defend the suit, but the Appellant all along refused to embrace the opportunity so given and elected to set trap in the litigation process against the lower court as such he can therefore not be allowed to accuse the lower court of assumed wrong doing which were instigated by him.
The Appellant’s reply brief is of no consequence, because the appellant had no right of being heard even in this motion of 25/3/2012 since he did not file a memorandum of appearance which would have given him a right of being heard.
I am totally convinced that the Appellant was not denied his constitutional right of fair hearing by the lower court. Learned counsel for the Appellant’s argument in some instances seems to impeach certain portions of the proceedings at the lower court. A party can only impeach the record of a court successfully, if he produces the original record that read differently with the record of the appeal in use. Any contrary method is unacceptable.
The sole issue formulated by the Appellant and the 1st issue formulated by the Respondent are hereby resolved against the Appellant. Accordingly the appeal herein lacks merit and it is dismissed.
The judgment of the lower court subject matter of this appeal is hereby affirmed.
The Respondent is entitled to the cost of this appeal which I assess at N30,000.00 against the Appellant.
ITA G. MBABA, J.C.A.: I have had the privilege of reading, in draft, the judgment of my learned brother Paul A. Galinje JCA (PJ) in this appeal, and I agree with his reasoning and conclusion. I have nothing to add, as I too dismiss the appeal and abide by the consequential orders therein.
OBANDE OGUINYA, J.C.A.: I have had a preview of the lucid judgment delivered by my learned brother, Paul A. Galinje, JCA. I am in, complete, agreement with his reasons and conclusions therein.
The focus of the appellant’s grievance is the alleged violation of his inviolable right to fair hearing as enshrined in section 36(1) of the amended 1999 Constitution. Incidentally, it is lost on the appellant that the principle of fair hearing thrives on the peculiar facts and circumstances of a case. It is not an abstract term that is always available to a party’s comfort and convenience, see Magit vs. University of Agriculture Makurdi (2006) 133 LRCN 461/(2006) 19 NWLR (Pt. 959) 211; Olowu vs. Nigerian Navy (2011) 18 NWLR (Pt.1279) 659. The facts and circumstances of this case, as borne out by the record, render the appellant’s clamour for fair hearing untenable in law.
It is incumbent on court to provide a congenial environment for parties to ventilate their grievances, either in prosecution or defence of a matter, in keeping with the tenets of the inalienable principle of fair hearing. The record, amply, demonstrates that the lower court afforded the parties that equal opportunity to present their cases as required by law. Curiously, the appellant, in his infinite wisdom, failed or neglected to utilize his own opportunity. The lower court satisfied the litmus test for fair hearing in the sense that no reasonable man would have accused it of bias against the appellant. If ever there was a breach of the appellant’s right to fair hearing, it was self-made and the law commands him not to complain.
It is for the above reasons, coupled with the detailed ones in the leading judgment, that I, too, dismiss the appeal and abide by the consequential orders made therein.
Appearances
Appellant not representedFor Appellant
AND
Respondent:- AbdulKareem Bello Esq.For Respondent
