MADAM NKOYO NNANAH V. MR. ESSIEN USORO
(2013)LCN/6136(CA)
In The Court of Appeal of Nigeria
On Monday, the 29th day of April, 2013
CA/C/252/2011
RATIO
FAIR HEARING: DEFINITION UNDER SECTION 36(1) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
“Fair hearing within the meaning of S.36 (1) of the 1999. Constitution means a trial conducted according to all the legal rules formulated to ensure that justice is done to parties. It requires the observance of twin pillars of the rule of natural justice namely audi alteram partem ad nemo judex in causa sua Eshenake v. Gbinije (2006) 1 NWLR (Pt.961) page 222.PER UZO I. NDUKWE-ANYANWU, J.C.A.
SERVICE OF HEARING NOTICE AND OTHER PROCESSES: WHEN NOT NECESSARY
Service of Hearing Notice or other processes of the court is or may not be necessary where the party to be served or his counsel is present in court when the matter is adjourned to another date for its hearing. See also UBA PLC Vs. Effiong (supra). PER UZO I. NDUKWE-ANYANWU, J.C.A.
WHEN THE COURTS WILL NOT ORDER HEARING NOTICES
When a case is set down for hearing on a date fixed in open court in the presence of parties and their counsel, there is clearly no duty on the court to order hearing notice nor is there a duty on the Registrar of the court to issue another hearing notice. See Adeyemi vs. Lan & Baker (Nig.) Ltd. (2000) 7 NWLR Pt.663 page 33.PER UZO I. NDUKWE-ANYANWU, J.C.A.
WHEN A PARTY FAILS TO SHOW UP AFTER BEING SERVED WITH PROCESSES OF COURT
It is not the duty of a court to wait for a party who is duly served with the processes of court and fails to show up. The court is free to begin hearing on any matter when it is satisfied that the parties to the case were duly served with hearing notices. Nyamati Ent. Ltd. vs. NDIC (2006) All FWLR Pt.293 page 356.PER UZO I. NDUKWE-ANYANWU, J.C.A.
WHEN A PARTY DELIBERATELY REFUSES TO BE AN ACTIVE PART OF THE TRIAL PROCESS
“A party, who deliberately refused to be an active part of the trial processes, does so at his own peril for if of the end of the day the result of a case is not in his favour, he has himself to blame. The miscarriage of justice is a double -edged sword that operates both ways. A party cannot hold the other to ransom and expect justice to lean towards him only. See the case of Mohammed v. Kpelai (2001) 6 NWLR Pt.710 page 700 per Muktar, JCA as she then was.PER UZO I. NDUKWE-ANYANWU, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
MADAM NKOYO NNANAH Appellant(s)
AND
MR. ESSIEN USORO Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State sitting in Calabar delivered on the 24th day of November, 2010. The Appellant in this case substituted the former Appellant who was the defendant and counter-claimant in the trial court. The Respondent was the plaintiff and the claimed inter alia as follows:
“1. A declaration that the plaintiff is entitled to possession and statutory Right of Occupancy to the property situate and known as No.10A Bassey Street, Calabar, Cross River State which property is registered as No.77 in page 77 Volume 121 of the Register of Deed kept in the Lands Registry in the office of Calabar.
2. An order directing the defendant to vacate and deliver up physical possession of No.10A Bassey Street, Calabar, Cross River State being property of the plaintiff by virtue of transfer of ownership by a Deed of Assignment.
3. An order directing the refund of all rents amounting to N288,000.00 (two hundred and eighty-eight thousand Naira) per annum, purported or fraudulently collected from the plaintiff’s tenants at No.10A Bassey Street, Calabar, from the dote of conveyance till judgment is given.
4. An order of court restraining the defendant, her agents, privies, hirelings, legal representative or executors-in-title from further interfering with the plaintiff’s property of No.10A Bossey Street,
Calabar, Cross River State.
5. N10,000.00 (ten million naira) damages.
6. Cost of litigation assessed of N250,000.00 (two hundred and fifty thousand naira) only.”
The defendant filed her defence and her counterclaim and claimed as follows:
“1. A declaration that the defendant is entitled to the statutory right of occupancy over the property situate and known as No.10A Bassey Street, Calabar, Calabar South Local Government Area of Cross River State of Nigeria and wrongly registered by the plaintiff in the Lands Registry, Calabar as No.77 at page 77 in volume 121.
2. A declaration that the plaintiff is not entitled to lay claim to the defendant’s property situate and known as No.10A Bassey Street, Calabar as the purported Assignment of the property to plaintiff had been rescinded and the plaintiff collected port of the purchase price of the said property before the registration of Lands Registry, Calabar.
3. A declaration that the registration of the Deed of Assignment dated 10th day of July, 2005 concerning defendant’s property situate and known as No.10A Bassey Street , Calabar after the plaintiff had collected part of the alleged purchase price of the property is null and void and of no effect whatsoever.
4. An order canceling the registration of defendant’s property situate and known as No.10A Bassey Street, Calabar and registered of the Lands Registry, Calabar as No.77 of page 77 in volume 121.
5. N20 million damages.
6. A perpetual injunction restraining the plaintiff, his servants, agents, workmen or privies from trespassing, interfering or entering the property or parading or holding up himself as the owner of the said property situate and known as No.10A Bassey Street, Calabar or doing any other thing inconsistent with the defendant’s right of ownership of the property.”
At the close of pleadings the trial commenced with the plaintiff/Respondent giving evidence as Pw1 and calling one other witness as Pw2. The Defendant/Appellant applied for a date for her defence. She was accordingly granted 4 days for her defence, 30th, 31st March and 1st and 2nd April, 2009. On those days scheduled for the defence, the defendant/Appellant and her counsel were absent in court. On the 1st April, 2009, the Respondent’s counsel applied to file his address. His application was granted. He then filed and served the Appellant’s counsel. The Appellant’s counsel failed to come to court on 25th day of June, 2009 when the address was adopted and the court adjourned to 6th day of August, 2009 for judgment. On 4th day of August, 2009, the Appellant counsel filed a motion for extension of time for the defence to file her written deposition on oath and that of her witnesses after over 6 months the plaintiff/Respondent closed his case. The learned trial Judge refused the application and went ahead to deliver his considered judgment, the application sought to arrest. The trial Judge gave judgment to the plaintiff/Respondent hence this appeal.
The Appellant being dissatisfied filed her notice and four grounds of appeal. The Appellant filed her Appellant’s brief on 16th day of January, 2013 and articulated three issues for determination as follows:
“1. Whether the High Court of Justice, Calabar exercised its discretion judicially and judiciously in dismissing appellant’s application for extension of time to file her written deposition and those of her witnesses in line with the provisions of the Cross River State (Civil Procedure) Rules, 2008 and in view of the appellant’s in-health which prevented her from opening her defence on the dates appointed for that and by the court proceeding for judgment in the suit thereafter.
2. Whether the judgment of the High Court of Justice, Calabar delivered in Suit No.HC/428/2007 on 24/11/2010 is not judgment in default of appellant presenting her defence due to her ill-heath which led to her eventual death and also should the judgment not be set aside having regards to the facts and circumstances of the case.
3. Whether the appellant was given a fair hearing to prove her counter-claim when she partly recovered from her sickness and approached the court to allow her defend and prove her counter-claim before same was dismissed without a hearing before the judgment was delivered.”
The respondent filed his own brief on 1st February, 2013 and also articulated three issues from the grounds of appeal. The issues are as follows:
ISSUE 1
Whether the Appellant was denied fair hearing considering the fact that the four (4) days her counsel applied for to open defence were granted without reservation and were utilized, without excuse or explanation court.
ISSUE 2
Whether the Appellant was given opportunity to prove her counter-claim.
ISSUE 3
Whether the judgment in the instant case can properly be called default judgment considering the abandonment of same after initial participation and inspite of the court’s indulgence in the Appellant’s favour.
The issues articulated by both parties are almost the same in material particular however, I will utitize those issues articulated by the Appellant.
ISSUE 1
Learned Counsel to the Appellant Chief G. A. Udousoro who also prepared the brief submitted that the Appellant by a motion applied for extension of time to file her written deposition and those of her witnesses. This application was refused and the trial Judge Proceeded and delivered his judgment on the main suit. Learned counsel claimed that the Appellant was sick and travelled to Akwa Ibom where she could not communicate. Counsel also argued that in her absence on 1st April the court continued without serving him with a hearing notice. That none service of hearing notice on him occasioned injustice on the Appellant See Agena Vs. Katseen (1998) 3 NWLR Pt.543 page 560. Counsel argued that further adjournment without serving the Appellant with hearing notice had occasioned a miscarriage of justice. See U.B.A. PLC Vs. Effiong (2012) All FWLR pt 634 page 172.
Counsel opined that the ill-health of the Appellant should have been considered as a special circumstance to persuade the court to exercise its discretion judiciously and judicially and allow the Appellant to file her deposition and that of her witnesses. See Abacha Vs. State (2003) 3 ACLR page 1.
Counsel therefore urged the court to resolve this issue in favour of the Appellant.
The learned counsel to the Respondent Aniekan Essiet submitted that the learned trial Judge granted the Appellant four consecutive days to put in her defence. The Appellant and her counsel absented themselves from court without any apologies for the first three days. See Inokoju Vs. Adeleke Rashidi & Ors (2007) NSCQR vol. 29 pt 2 page 999 per Ogbuogu JSC as follows:
“It is stated that the question, is whether a party entitled to be heard, has been given the opportunity of being heard. In its nature, a party who has or had, every opportunity to present his case before the court and who fails to do so cannot be heard to complain of breach of his right of fair hearing. It is said that fair hearing is like a sacred cow, but it cannot be invoked where a litigant is just crying wolf where in fact there is none.” (as in the instant case leading to this appeal)
Counsel continued that the trial Judge adjourned the case for the defence to open and granted the Appellant 4 consecutive days. There was no point again to serve hearing notice since the adjourned dates were given in court in the presence of both parties. See Fatokun Vs. Somade (2002) FWLR Pt.93 page 193 where the court held as follows:
Service of Hearing Notice or other processes of the court is or may not be necessary where the party to be served or his counsel is present in court when the matter is adjourned to another date for its hearing.
Counsel referred the court to Order 13 Rule 17 of the High Court of Cross River State (Civil Procedure) Rules 2008 which provides as follows:
“If no appearance is entered within the time prescribed in the originating process in a claim for recovery of land, or if appearance is entered but the defence is limited to part only of the claim a Claimant may apply to a judge for judgment stating that the person whose titled is asserted in the originating process shall recover possession of the land, or of that part of it to which the defence does not apply.”
Counsel argued further that in order to ensure fairness, the Respondent indulged the appellant and further sought leave to file a written address. This was to give the appellant an opportunity to file a reply and a defence if any.
The ill-health of the Appellant was never an issue until the date adjourned for judgment. The Appellant cannot complain about the courts discretion exercised judicially and judiciously. See Ohwovoriole Vs. FRN (2003) FWLR pt 141 page 2019 –
Counsel argued further that the ill health of the appellant cannot be used as an excuse to derail the cause of justice. The trial court in its ruling held thus:
“As for the issue of the alleged sickness of the Defendant let me say that it a bare averment not supported by evidence or reliable evidence whatsoever. Her counsel also from the records, never relied on it as a reason for her or their non-appearance in court…”
“In my humble opinion, however, a calm perusal of the Applicant’s affidavit as it concerns her alleged sickness is so entirely lame and lacking in any particulars whatsoever as to render it worthy of any reasonable belief or reliability. When was she taken for treatment? And by whom? Whom treated her and when? What kind of sickness was she suffering.”
Learned counsel submitted that the trial court exercised its discretion judiciously and judicially and finally urged the court to resolve this issue against the Appellant.
The question to be answered in issue one is whether, the Appellant had a fair trial. I might have to repeat myself to make the trial obvious to the ordinary man on the street.
“Fair hearing within the meaning of S.36 (1) of the 1999. Constitution means a trial conducted according to all the legal rules formulated to ensure that justice is done to parties. It requires the observance of twin pillars of the rule of natural justice namely audi alteram partem ad nemo judex in causa sua Eshenake v. Gbinije (2006) 1 NWLR (Pt.961) page 222.”The appellant in this appeal was given four consecutive days to put up her defence i.e. 30th, 31st March and 1st and 2nd April 2009. These dates were given in court in the presence of all the parties. It therefore means that none of the parties deserves to be issued with hearing notice for these dates. See Fatokun Vs. Somade (supra) where the court held:
Service of Hearing Notice or other processes of the court is or may not be necessary where the party to be served or his counsel is present in court when the matter is adjourned to another date for its hearing. See also UBA PLC Vs. Effiong (supra). The Appellant is not entitled to be served with Hearing Notice for those four days. On the 1st April 2009 the 3rd day the Respondent applied to be given leave to file his written address. The written address was filed and served on the appellant. It still did not wake the appellant from slumber.
When a case is set down for hearing on a date fixed in open court in the presence of parties and their counsel, there is clearly no duty on the court to order hearing notice nor is there a duty on the Registrar of the court to issue another hearing notice. See Adeyemi vs. Lan & Baker (Nig.) Ltd. (2000) 7 NWLR Pt.663 page 33.
It is not the duty of a court to wait for a party who is duly served with the processes of court and fails to show up. The court is free to begin hearing on any matter when it is satisfied that the parties to the case were duly served with hearing notices. Nyamati Ent. Ltd. vs. NDIC (2006) All FWLR Pt.293 page 356.The Appellant in this case was accorded a fair trial, but he failed to utilize the dates granted him in court. The Appellant and her counsel failed or neglected the opportunity offered them to appeal in court and put in her defence and prove her counter-claim. The counsel did not even accord any respect to the court by informing the court that his client is of large and won’t be able to appeal to put in her defence. The counsel kept quiet and surfaced after over six months to state that the Appellant has been sick. Any one can be sick but this ought to be communicated to the court as soon as possible. The party whose case is in court is not absolved from tardiness even if she has engaged the services of a lawyer.
“A party, who deliberately refused to be an active part of the trial processes, does so at his own peril for if of the end of the day the result of a case is not in his favour, he has himself to blame. The miscarriage of justice is a double -edged sword that operates both ways. A party cannot hold the other to ransom and expect justice to lean towards him only. See the case of Mohammed v. Kpelai (2001) 6 NWLR Pt.710 page 700 per Muktar, JCA as she then was.”The Appellant has argued that the hearing was done in his absence thereby occasioning a miscarriage of justice. This is not the case here. The Appellant did not show or indicate which day proceedings went ahead without his notice. The Appellant deliberately of his own accord absented himself from court despite that, the dates were given in his presence. As held in the case of Mohammed vs. Kpelai (supra):
“The principles of audi alteram partem is not a massive shield which a litigant can cover himself with, with a view to circumventing the due process of law, or shielding himself from the consequences of litigation at his whims and caprices.”
“A party seeking to invoke the principle of audi alteram partem in his favour must show that he was deliberately bye-passed and excluded from proceedings before he can succeed. Folbad Invest. Ltd. vs. Alpha Merchant Bank Ltd. (1996) 10 NWLR (Pt.478) page 344.”The Appellant and her counsel have not handled this case with diligence. More especially learned counsel to the Appellant should have treated the trial court with a lot more courtesy than he did. The court is not expected to continue waiting for the Appellant of her own whims and caprices.
The court cannot be held to ransom by any litigant who has set out to frustrate the proceedings of court and constituted himself a clog in the wheel of machinery of the court. Mohammed vs. Kpelai (supra).
In the instant case, the court gave the Appellant ample opportunity to put in her defence. The Appellant and her counsel failed to avail themselves of the opportunity offered by the court to put in her defence. The Appellant and her counsel have themselves to blame for opportunity lost to put in her defence.
The Appellant cannot turn around and state that she was not heard or that the proceedings conducted in her absence constituted a miscarriage of justice.
“A party who alleges that the proceedings of a court occasioned a miscarriage of justice to him has the burden to prove it.” Mohammed vs. Kpelai (supra).That the Appellant in this case has failed to prove, Donatus Ndu vs. The State (1990) 7 NWLR Pt.164 page 550; Maikya vs. Itodo (2007) 7 NWLR Pt.1034 page 443.
Where a court gives a party an opportunity to be heard and he failed to avail himself of that opportunity he cannot be heard to say he was not accorded fair hearing. The Appellant in this case cannot complain. No aspect of fair hearing was breached in this case. The Appellant had the opportunity to be heard. The trial Judge was right in dismissing the application by the Appellant to file her witness statement an oath to defend herself and prove her counter-claim. This issue is therefore resolved against the Appellant.
ISSUE 2:
Learned counsel to the Appellant submitted that the judgment delivered on 24th day of November, 2010 in suit No.HC/428/2007 was not a judgment on the merit. Counsel argued that the judgment was in default which should be set aside by the Appellate Court. See Alabi vs. Lawal (2004) 2 NWLR Pt.856 page 134 where the Court of Appeal held:
“Judgment obtained when one party is absent or in default of filing of statement of defence or denial of fair hearing can be set aside by the trial court or the appellate court.”
Counsel maintained that the Appellant’s failure to put in her defence was as a result of ill-health. Counsel therefore urged the court to set aside this judgment and resolve this issue on behalf of the Appellant.
The learned counsel to the Respondent submitted that a default judgment was described in the case of Bello vs. INEC (2010) All FWLR Pt.526 page 397 as:
“A default judgment is one given in default of appearance or pleadings against a defendant or plaintiff in a cross-action whose names appear as such defendant or plaintiff in the record of the trial court.”
Counsel opined that the judgment was not a default one as the Appellant was given the opportunity of putting in her defence and proving her counter-claim. The Appellant did not do so but gave the excuse that the Appellant was sick. This assertion the court did not believe. The court did not believe this because the learned counsel to the Appellant failed to show any courtesy to the court but kept off. See Rule 3 of the Rules of profession of conduct. See Magna Maritime Ltd. vs. Oteju (2005) NSCQR Vol.22 Pt.1 page 295 where the Supreme Court held as follows:
“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 not 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.”
Counsel finally urged the court to resolve issue 2 against the Appellant.
The Appellant has urged the court to hold that the judgment delivered on 24th day of November, 2010 was a default judgment and should be set aside. How can this judgment be default judgment when the Appellant participated in the trial.
The Appellant’s counsel took part and vigorously cross-examined the two prosecution witness. The Appellant only opted out in her defence and counter-claim.
The trial court dismissed the Appellant’s application to file her statement under oath and that of her witnesses. The trial court exercised that discretion and held that, the, reason for absenting herself from court was not cogent. That discretion was exercised judiciously and judicially. I cannot fault that. The Appellant failed to utilize the opportunity afforded her to be part of the trial.
The Respondent proved his claim and judgment was given in his favour. The second issue is also resolved against the Appellant.
ISSUE 3:
Learned counsel to the Appellant submitted that the Appellant was not given an opportunity to prove her counter-claim. Furthermore the trial Judge dismissed the Appellant’s counter-claim as follows:
“As for the defendant’s counter-claim, it is hereby firmly dismissed in its entirety for abandonment after unnecessary waste of time and expenses, with N5,000.00 costs to plaintiff.”
Counsel submitted that the court should have considered the Appellant’s ill-health to grant her application for extension of time to file her defence. See Atisefinni vs. DPP (2002) FWLR Pt.122 page 88.
Counsel submitted that the Appellant was not given a fair hearing considering all the circumstances of this case. See Mohammed vs. Kano N.A. (1968) 1 All NLR page 424, Babalola vs. Ogun State Polytechnic (1998) 5 NWLR Pt.550 page 483; Obadaro vs. President Ibadan West District grade “B” Customary Court (1965) NWLR page 39; Okochuwa vs. State (1998) 7 NWLR Pt.557 page 232; Ntukidem vs. Oko (1987) 5 NWLR Pt.45 page 909: Adefulu vs. Okulaja (1998) 5 NWLR page.550 page 435.
Counsel finally urged the court to resolve this issue in favour of the Appellant.
In response learned counsel to the Respondent argued that a counter-claim is a distinct claim from the claim which it relates. The counter-claim has to lead credible evidence to succeed. She cannot rely on the weakness of a claimant’s case as proof of her counter-claim. See Garba vs. Kur (2003) 11 NWLR Pt.831 Page 280.
Counsel submitted that the Appellant lost the opportunity to lead evidence to prove her counter-claim when she lost the four days allowed her to do so. See the case of Mohammed vs. Kpelai (supra) where the court held as follows:
“Equity aids the vigilant and not the indolent. As such, it does not lie in the mouth of an indifferent and indolent defendant who absented himself from the proceedings up to judgment to complain that he was not availed his constitutional right of fair hearing.”
No court worth its soft will wait indefinitely for an indolent Appellant. See Mohammed vs. Kpelai (supra). It is the duty of the counsel to notify the court, of any absence from court. See FBN vs. Maiwada (2012) Vol.51 NSCQR page 155; Government of Zamfara vs. Gylanye (2012) Vol.51 NSCQR Page 1.The court did not just glass over the Appellant’s counter-claim but he indeed adequately evaluated the evidence before it. The trial judge then made a finding in its judgment and dismissed the counter-claim. Counsel therefore urged the court to resolve this issue against the Appellant.
At the risk of being repetitive the Appellant had the opportunity of putting in her defence and also lead evidence to prove her counterclaim. She failed to avail herself of that opportunity. I have already discussed this issue of length in the first issue. This issue is also resolved against the Appellant.
Having resolved all the three issues articulated by the Appellant against her, this appeal is therefore unmeritorious. It is dismissed. I affirm the judgment of the trial court. I make no orders as to costs.
JOSEPH TINE TUR, J.C.A.: I have read the lead judgment of my Lord Uzo I. Ndukwe-Anyanwu, JCA and I concur with the reasoning and conclusion arrived at. The facts have been set out in the lead judgment. I adopt them with the following comments.
The writ of summons and statement of claim were filed on 8th day of November, 2007. The memorandum of appearance was entered on behalf of the Respondent on 19th day of November, 2007 and the statement of defence and counter-claim on 18th day of December, 2007. A reply and defence to the counter claim was filed on behalf of the respondent on 2gth day of January, 2008. Thus pleadings were filed and exchanged before the High Court of Cross River (Civil Procedure) Rules, 2008 came into effect on the 29th day of September, 2008. Order 1(1) of the 2008 Rules provided that:
“1(1) These Rules shall apply to all proceedings including all part-heard causes and matters in respect of steps to be further taken in such actions.
(2) The application of these Rules shall be directed towards the achievement of a just, efficient and speedy dispensation of justice.
(3) Where a matter arises in respect of which no adequate provisions are made in the Rules, the Court shall adopt such procedure as will in its view do substantial justice between the parties concerned.”
Actual hearing commenced on 7th day of July, 2008. The respondent closed his case on 12th day of February, 2009, after calling Pw1 and Pw2 to testify. Both were cross-examined by learned Counsel to the appellant late Chief G. Udousoro, Esq.. Documents were also tendered, admitted and marked as Exhibits “1”-“8” when the High Court (Civil Procedure Rules) 2008 came into effect on 29th day of September, 2008. By Order 1(1) of the Rules (supra) they were to apply to all proceedings including all part-heard causes and matters in respect of steps to be further taken in such actions. That means the appellant’s learned Counsel should have taken steps to file written depositions on oath of the witness accompanied with documentary exhibits and list of witnesses in support of the defence/counter-claim as provided under Order 17 rules 21(1) of the 2008 Rules which provides as follows:
“(1) The statement of defence shall be a statement in summary form and shall be supported by copies of documentary evidence, list of witnesses and their written statements on oath.”
The record of appeal shows the following entry on 12th day of February, 2009:
“Court: By consent case is adjourned, for defence on 30, 31st, March and 1st and 2nd April, 2009.”
Neither the appellant nor her learned Counsel appeared in Court to defend the claim nor prosecute the counter-claim till 31st day of March, 2009 when learned Counsel to the respondent applied for adjournment to 1st day of April, 2009. The record of that day reads as follows:
“Court; Re -adjourned for last time case is adjourned to tomorrow, 1st day of April, 2009 for defence, due to the defendant’s absence.”
On 1st day of April, 2009 Chief G. Udousoro, Esq. and the appellant did not appear. Learned Counsel to the respondent intimated the Court that the appellant having abandoned their case he should be granted 14 days to file a written address and serve the appellant. The Court adjourned for address on 18th day of May, 2009. On 18th day of May, 2009 the Court did not sit hence the matter was further adjourned to 25th day of June, 2009 for address. On that day A. Eshiet, Esq. intimated the Court that the written address was filed on 8th day of April, 2009 and served on the appellant, yet he had not been served a reply address. The registrar affirmed that no reply address had been filed though the appellant was served. Learned Counsel adopted the written address and asked for judgment. The Court adjourned for judgment to 6th day of August, 2009. But the matter came up on 13th day of October, 2009. Chief G. Udousoro, Esq. with F. Ekanem, Esq. and A. Akpan, Esq. represented the appellant. The records of 13th day of October, 2009 read as follows:
“Chief G. Udousoro with F. Ekanem and A. Akpan for defendants.
Udousoro: I just learnt that the matter is actually listed for judgment. We have a motion on notice filed on 4th day of August, 2009 for order extending for defendant to file her written depositions of witnesses and prosecute the case.
Eshiet: I am just now being served here in Court. They had a lot of time to have done so, not today that matter is slated for judgment. We ask for time to counter the contents of the affidavit, if only they will not abandon it again. In the past, they filed such processes and then disappeared into thin air only to reappear when it was slated for judgment to seek another excuse to delay the matter.
Udousoro: I undertake to be here on the adjourned and subsequent adjourned dates.
Court: Case is adjourned by consent and undertaking of Counsel to 21st day of October, 2009 definite arguments on both sides.
Sgd; O. I. Itam, Judge 13/10/2009.”
Series of adjournments followed until 20th day of April, 2010 when Counsel moved the application and Eshiet, Esq. responded. The learned trial Judge dismissed the application on 24th day of November, 2010 and proceeded to deliver judgment in favour of the respondent. The learned trial Judge further dismissed the appellant’s counter-claim with N5,000.00 cost to the respondent. Can it be seriously contended that the appellant was not given an opportunity to defend the suit and prosecute the counter-claim? I do not think so.
There is no provision under the High Court (Civil Procedure) Rules, 2008 for a party to arrest the judgment of the trial Court whatsoever be the reason. For that was the purport of bringing the application for extension of time to file written depositions of witnesses on 4th day of August, 2009. See Newswatch Communications Ltd. vs. Atta (2006) All FWLR (Pt.318) 580 at 608-609 paragraph “H”-“A” where the Supreme Court held that:
“The rules of Court do not make provision for an application to arrest a judgment, which is about to be delivered by a Court. An application not recognized by the Rules of Court cannot be described as a proper application. I think that the application, to arrest the judgment about to be delivered, was in fact a cynical attempt to taunt the trial Court, given the fact that the appellant had before then, disdainfully refused to put in its defence. I am unable to see that the appellant was in the circumstance denied its right to fair hearing.”
See also Bob-Manuel vs. Briggs (1995) 7 NWLR (Pt.409) 537.
Secondly, the appellant had before 30th, 31st March, and 1st to 2nd April, 2009 to have, if she so desired to filed the witnesses’ deposition in order to put in their defence but they did not. One may argue that the application by the respondent’s learned Counsel on 1st day of April, 2009 to file a written address was premature since the appellant still had one day, namely, 2nd April, 2009 and learned Counsel could have appeared. However I do not see any miscarriage of justice
“I think I have seen through the case the appellant is struggling to make. I have seen so much gimmick and foul play in the case. The respondent first saw this and placed all the cards at our disposal. That is good advocacy. I have said it in the past and I will say it here again that the provision of fair hearing in the Constitution and as adumbrated by the Courts in the case is for both parties in the litigation. If is not only for the appellant. It is also not only for the respondent. It is for both parties in the litigation, if I may repeat at the expense of prolixity. And so the judge in the application of the principles of fair hearing must ensure that the pendulum tilts in favour of the party really aggrieved by the Court’s conduct of violating the principles. The duty of a Court is to create the environment for fair hearing in an egalitarian manner for the benefit of the parties. A Court of law cannot force parties to take advantage of the principles. Once the Court creates the environment, its duty stops and the parties are at liberty to take advantage of the environment created by the Court. If the parties fail to take advantage of the environment created by the Court, they cannot be heard on appeal to complain that they were denied fair hearing. Such will be unfair to the judge who has placed the fair hearing principles at the door steps of the parties.”
In Newswatch Communications Ltd. vs. Atta (supra) the Court adjourned the matter to 23rd day of January, 1996 and 24th day of January, 1996 for the appellant to utilize for his defence which she did not. Counsel for the respondent urged the Court to deem that the appellants had no defence to offer. The Court obliged and fixed 14th day of February, 1996 for address. Thereafter the matter was adjourned to 20th day of March, 1996 for judgment. As judgment was not ready it was further adjourned to 25th day of March, 1996. Then did Counsel to the appellant file a motion on notice praying that the judgment be arrested to enable him adduce oral and documentary evidence and open its defence in the suit before judgment. The learned trial Judge, as in this appeal, refused the application. It was argued on appeal that the refusal led to a miscarriage of justice. Once again the Supreme Court held per Niki-Tobi, JSC at pages 600 paragraph “F” to page 603 as follows:
“That takes me to the second issue. It is in respect of the alleged refusal of the learned trial Judge to hear the appellant’s application to arrest the judgment. There is not much difference between the two issues except that the second issue is tied to the fair hearing principle in the Constitution. I will take the issue in the way Counsel formulated it.
Counsel, quite a legion, find the fair hearing principle duty entrenched in the Constitution as a pathway to success whenever they are in trouble on the merits of the case before the Court. Some resort to it as if it is a magic wand to cure all ills of the litigation. A good number of Counsel resort to the principle even when if is inapplicable in the case.
The constitutional principle of fair hearing is for both parties in the litigation. If is not only for one of the parties. In other words, fair hearing is not a one-way traffic but a two-way traffic in the sense that it must satisfy a dual carriage-way, in the con of both the plaintiff and the defendant or both the appellant and the respondent. The Court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be justice. That will be injustice,
It is the duty of the Court to create the atmosphere or environment for a fair hearing of a case, but it is not the duty of the Court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turn around to accuse the Court of denying him fair hearing. That is not fair to the Court and Counsel must not instigate his client to accuse the Court of denying him fair hearing.
A trial judge can indulge a party in the judicial process for some time but not for all times. A trial Judge has the right to withdraw his indulgence at the point the fair hearing principle will be compromised, compounded or will not really be fair as it affects the opposing party. At that stage, the trial Judge will, and rightly too for that matter, retrace his steps of indulgence and follow the path of fair hearing as it affects the opposing party, who equally yearns for it in the judicial process. At that stage, the party who is not up and doing to take advantage of the fair hearing principle put at his door steps by the trial Judge, cannot complain that he was denied fair hearing. Such is the situation I see in this appeal.
The fair hearing principle formerly entrenched in Section 33 of the 1979 Constitution, and now Section 36 of the 1999 Constitution, is not for the weakling, the slumberer, the indolent or the lazy litigant, but it is for the party who is alive and kicking in the judicial process by taking advantage of the principle at the appropriate time. The principle is not available to a party who sets a trap in the litigation process against the Court and accuse the Court of assumed wrongdoing even when such so-called wrongdoing is, as a matter of fact, propelled or instigated by the party through his Counsel.Counsel qua advocate as an expert of law has an unfettered right to advise his client on what line of action to take in the light of the applicable law. While there cannot be any argument on this right of Counsel, the owner of this big power, he is expected to exercise it only in the light of the enabling law in the matter. He should take into serious consideration that the client, the novice in law, will have no choice than to rely wholly and fully on the position of the law as given to him by Counsel.
I believe that the way Counsel conducted the matter was his way and the client, the novice in the law, had no choice than to follow him. He used all the delaying tactics that he knew and were available to him. They were not one, not two, not three but many. He thought that by using such tactics he will finally get his way and when the learned trial Judge adjourned for judgment, Counsel thought, and very wrongly for that matter, that he had caught the trial Judge in the trap or web. He thought, and again, wrongly for that matter, that the appellate Courts will be with him when he dangles the fair hearing principle entrenched in the Constitution. He got it very wrong. He got it all wrong too, and so the appellant, unfortunately, became the victim of all the tactics and tricks of Counsel. It has my sympathy but my sympathy does not go far enough to help him.
The position may have been different if Counsel assiduously and painstakingly defended the action from the first day. Things may not have been different, depending on the facts of the case and the defence put forward by the appellant. But Counsel used fruitless delaying tactics and he has made his client to fall into a ditch where a return journey is impossible to obtain judgment in the case. All his efforts to short-change the adverse party and the Court have come to naught as the road is permanently closed against the appellant. Litigation is not a matter of planting mines to deceive the opponent with a view to destroying his case undeservedly in limine. On the contrary, litigation is a process where the parties set out their cases frankly and fully for the determination of the Court. A trickish and misery presentation of a client’s case is not part of good advocacy.
What was the appellant waiting for between 8th day of May, 1994 when the action was instituted and 14th February, 1996 when Counsel for the respondent addressed the court? Why did the appellant not lead evidence in defence and why did Counsel not address the Court? Why did Counsel wait till 25th March, 1996 “to file a motion to adduce oral and documentary evidence and open its defence in the suit before judgment”? Where was the oral and documentary evidence waiting? Was the oral and documentary evidence not available all along? Did the oral and documentary evidence become available on 25th March, 1996? The statement of claim was filed way back on 25th May, 1994. After filing the statement of defence and counterclaim, what was the appellant waiting for till the judgment was delivered on 9th May, 1996?
There are still questions galore but I can stop here. This is a case where the appellant had no time to present ifs defence but had all the time in the world to file a motion to arrest the judgment of the Court. I am here repeating what I said in the introduction of this judgment. The law is certainly not in its favour.
The law is very much against the appellant. I do not want to say that the appellant is a victim of bad advocacy. It has my sympathy, I say once again. In sum, the appeal fails as it lacks merit. It is dismissed with N10,000.00 costs against the appellant and in favour of the respondent.”
For instance it has been held by the Supreme Court that to grant an adjournment for a party to file an affidavit after the applicant has moved and concluded argument on his application constitutes a breach of fair hearing. See Bill vs. Imani (2006) 12 SCNJ 75 at 82 and NNB Plc vs. Sani (2001) 7 NWLR (Pt.713) 544.
Moreover, there is no medical certificate to support the argument that the appellant had been sick since the institution of the suit on 8th day of November, 2007 till judgment. See Larmai vs. Obih (1980) 5-7 SC 28.
For these and the fuller reasons given in the lead judgment I also dismiss this appeal and abide by the orders of my Lord.
ONYEKACHI A. OTISI, J.C.A.: I have had opportunity of reading in advance the judgment of my learned brother, Ndukwe-Anyanwu JCA in this appeal. The issues raised by the appellant have been fully considered, and, I am in complete agreement with the judgment. The appeal is indeed unmeritorious.
Fair hearing is a Constitutional right; and, fair hearing grounds the validity of any legal proceedings. However, where a party to a suit has been accorded a reasonable opportunity of being heard in the manner prescribed under the law, and for no satisfactory explanation he fails or neglects to attend the sitting of the court, the party cannot thereafter be heard to complain of lack of fair hearing. See: Okotcha v. Herwa Limited (2000) 15 NWLR (pt. 690) 249 at 257 – 258; A.S.R. Co. Ltd v. O. O. Biosah & Co. Ltd. (1997) 11 NWLR (pt.527) 145. Adequate opportunity to defend a case is not breached where a party due to his own tardiness fails to avail himself of an opportunity to defend himself. See also: Malgwi v. Gadzama (2000) 11 NWLR (Pt.678) 258 at 268
Equity will part always ways with an indolent litigant. Akaninwo v. Nsirim (2008) 1 S.C.(Pt.III) 151. In Attorney General, Rivers State vs. Ude (2006) 6-7 S.C. 54 the Supreme Court per Dahiru Musdapher, JSC (as he then was) said:
“It is elementary law that the rules or principles of equity help only the vigilant and they do not assist an indolent party who fails to pursue his right diligently and within a reasonable time. Where this happened the courts regard such delay or indolence of the party either as fatal to his case or as amounting to a waiver of his right under the maxim that equity helps only the vigilant.”
An exception to this principle is where there has been failure to serve a hearing notice, where the service of hearing notice is required. Such failure would render null and void any order made against the party who should have been served with the process. See: Madukolun V. Nkemdilim (1962) 2 SC NLR 31. A hearing notice would be required where a court adjourns a case beyond a date when the litigants have notice of the hearing of the case. The court in that circumstance has a duty to notify the parties of the subsequent adjournment. However, where a party or his counsel is present in court and therefore aware of the adjourned date, there is no reguirement to serve a hearing notice. See also: Attorney General, Rivers State vs. Ude (supra).
At the close of the Respondent’s case as plaintiff in the lower court, the Appellant was given four days for her defence, upon her application. But, on none of those four days did she or her Counsel appear in court, and no explanation for their absence was before the court. Upon application of the Respondent’s counsel and following Order of court, Counsel for the Respondent filed their written address and served the Appellant’s Counsel. The Appellant and Counsel still did not appear on the date the address was adopted. No explanation for their absence was again before the trial court. The matter was then adjourned to 6th August, 2009 for judgment. The Appellant and Counsel suddenly awoke from slumber and filed a motion on 4th August, 2009 seeking extension of time for defence to the written depositions for the Appellant and her witnesses. The trial court refused the application and delivered its considered judgment in favour of the Respondent, dismissing the counterclaim.
The Appellant, who had taken part in the proceedings and thereby been given every opportunity to defend the Respondent’s suit and prove her counterclaim, deliberately abandoned her defence to the action, and her counterclaim. Even her Counsel, as rightly observed in the lead Judgment, did not show much courtesy to the trial court. If there was a problem with proceeding with the defence, the trial court and the other counsel ought to have been notified.
For these and for the more comprehensive reasons given in the lead Judgment, I dismiss this appeal and affirm the judgment of the lower court. I adopt the orders contained in the lead judgment.
Appearances
Chief G. A. Udousoro Esq.For Appellant
AND
Aniekan Essiet Ituen, Esq.For Respondent
