MRS. RISIQUAT F. AIYEDUN v. REGISTRAR, UPPER AREA COURT ILORIN & ORS
(2016)LCN/8364(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 22nd day of March, 2016
CA/IL/1/2014
RATIO
CONSTITUTIONAL LAW: RIGHTS OF PERSONS; WHAT ‘FAIR HEARING’ INVOLVES
It also makes it obligatory on the Court or Tribunal that will determine the rights of the person to accord him fair hearing. ‘Fair hearing’ in the con involves:
1. a hearing that does not contravene the principles of natural justice and;
2. a hearing that must consist of the whole hearing when tested from the point of view of a reasonable person who was present at the trial, whether, from his observation justice has been done in the case. PER. MOHAMMED LADAN TSAMIYA, J.C.A.
NATURAL JUSTICE: THE CONCEPT OF NATURAL JUSTICE; THE PILLARS OF NATURAL JUSTICE
Sub-Section (1) of 36 entrenches the common law concept of natural justice with its pillars, namely:
a. that a man shall not be condemned unheard, and
b. that a. man shall not be a judge in his own cause.
See:- Deduwa v. Okorodudu (1976) 9-10 & C 329 at 346. Mohammed v. Kano N.A. (1969) 11/11 NLRB 424 AT 426. PER. MOHAMMED LADAN TSAMIYA, J.C.A.
PRACTICE AND PROCEDURE: HEARING NOTICE; WHETHER THE COURT ISSUE A HEARING NOTICE WHERE A PARTY FAILS TO APPEAR IN COURT
The issue of service of Court process is essential. I am not unmindful of the fact that Appellant’s Counsel fails to appear in some days but in OGUNDOYIN v. ADEYIMI (2001) 13 NWLR (Pt. 730) 403, the Supreme Court clearly decided that where a party fails to appear in Court, the Court owes it as a duty to examine its records to determine whether the party was served with the hearing notice but deliberately absented himself including his Counsel from Court and did not take opportunity of being heard. When the Appellants’ were not heard before their Appeal was dismissed they were not by any stretch of imagination given a hearing by the Court below.
Similarly, from the record it could be seen that Appellant’s Counsel repeatedly absents himself from Court. In that situation the only procedure to take is to issue a hearing notice. Hearing notice is the Court’s process by which a party to the proceedings is notified of the date the matter has been fixed in Court when he is not otherwise aware of such date. PER. MOHAMMED LADAN TSAMIYA, J.C.A.
JUSTICES
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
Between
MRS. RISIQUAT F. AIYEDUN Appellant(s)
AND
1. REGISTRAR, UPPER AREA COURT ILORIN
2. ATTORNEY-GENERAL AND COMMISSIONER FOR JUSTICE
3. HENRY GEORGE
4. ALH. NURUDEEN A. ADELEKE
5. OTUNBA OLUMIYIWA ADESANYA
6. DR. ADEYINKA J. ADEYEMI Respondent(s)
MOHAMMED LADAN TSAMIYA, J.C.A. (Delivering the Leading Judgment): This is an Appeal against the Ruling of the High Court of Kwara State in the Ilorin Judicial Division delivered on 07/11/2012 in Suit No. KWS/16M/2012.
The action leading to this Appeal was commenced at the Upper Area Court 1, Ilorin Division by the Appellant (the Plaintiff at the Court of 1st instance) vide an Application for civil summons in Suit No. CV/FM/14/2010 dated 7th April 2010. By the said summon, the Appellant sued her deceased husband’s father, mother and two brothers as 1st and 2nd 3rd and 4th Defendants (herein Respondents) asking for the following Reliefs:
1. Declaration that the Estate relates to Abdul-Ganiyu Olushola Aiyedun is to be distributed in accordance with Islamic Law.
2. An Order for account in respect of the properties left behind by the deceased husband in care of the Respondents especially 3rd and 4th Respondents.
3. Distribution of the Estate of late Abdul-Ganiyu Olushola Aiyedun among the legal and rightful heirs forth with in accordance with Islamic Law.
4. An Order of perpetual injunction restraining the Respondents, their
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servants, agents and/or privies from dealing with the Estate of the deceased in any way or manner apart from their share (if any) to be assigned to them in accordance with Islamic Law (See P.60, 62 of the record).
After filing this Suit, it was then set down for trial. The case suffered several adjournments between 14th April 2010 and 21st March 2012 when the Court of 1st instance (Upper Area Court) affirmed the sale of the Estate in question to one Mrs. Folamide Tonia Sikirat Olawumi after hearing of the Counsel to both parties to this action.
Thereafter, the case was adjourned to 25th April 2012 for continuation of hearing the case. However, in that circumstance, on 8th March 2012, the Appellant filed an Application before the High Court pursuant to Order 11, Rule 2 of the Fundamental Right (Enforcement Procedure) Rules 2009 and Section 36 (1) (2) and 47 (1) and (2) of the Constitution of the Federal Republic of Nigeria (as amended) seeking the following Reliefs:-
1. Declaration that the now service of hearing of notice and hearing of Applicant before an order of sale of her property made by the Upper Area Court is null void for breach
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of Applicant right to fair hearing.
2. An Order of this Honourable Court quashing the said processes of the Upper Area Court llorin referred to as Exhibit Dm 1 and setting aside the order of sale through Oloyede Oyediran Esq., Auctioneer as appointed by the Creditors and ordered by the Honourable Upper Area Court.
3. An Order of the Honourable Court setting aside the Consequential act of sale predicated on the order of sale for being a nullity.
4. And for such further Order(s) or direction as this Honourable Court may deem fit to make in the circumstances, Ground upon which this Application is predicated.
1. The learned Judge of the Upper Area Court Ilorin proceeded to make an Order for the sale of the Applicant’s property referred to as NITEL Fund Estate, Awolowo Road, Ikorodo, in Ikorodu Local Government Area of Lagos State, upon the application of the Creditors of the Applicant’s deceased husband without hearing the Applicant before the said Order was made by the Honourable Upper Area Court Ilorin.
2. That hearing notice was not issued and served on the Applicant fixing her with notice of the proceeding of the 2nd of November 2011
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of the Upper Area Court Ilorin within which proceeding the prejudicial order of sale through an auctioneer as nominated by the Creditor’s Counsel was ordered by the Honourable Upper Area Court Ilorin.
3. That the non-service of hearing notice on the Applicant as stated in Paragraph 2 hereof and the non-hearing of the Applicant with respect to the question affecting her civil right and obligation id est the sale of her property, infringed the Applicant’s guaranteed right to fair hearing entrenched in Section 36 of the Constitution of the Federal Republic of Nigeria 1999(as amended).
4. In the premises, the proceedings of the Honourable Upper Area Court that infracted and curtailed the Applicant’s right to fair hearing guaranteed within Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) are vitiated for reason of breach of fair hearing and therefore renders same null, void ineffectual.
After hearing both parties to this case, the High Court, on the 7th November 2011, delivered its Ruling and held that the Application of the Applicant/Appellant praying that the proceedings and Order of the Trial Upper Area Court
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(Court of 1st instance) be quashed, is lacking Merit and is accordingly, dismissed.
Being dissatisfied by the said decision of the High Court, the Appellant filed a Notice of Appeal on two (2) Grounds.
In the Appellant’s brief of argument filed on 13th March 2014, two Issues were distilled for determination of this Court. They are:-
7. WHETHER the appointment of Mr. Oloyede Oyediran by the Upper Area Court as Auctioneer of the sale of the Appellant’s late husband’s property at Ikorodu, Lagos to settle the deceased’s outstanding debts in accordance with Islamic Sharia Law, without the participation of the Appellant or her Counsel therein, violated her right to fair hearing and did the Court below not err in failing to so hold?
2. WHETHER the Court, below did not misdirect itself in law when it held that any defect that may have arisen in the procedure adopted in the sale of the property at Ikorodu, Lagos State had been cured by the ratification of same by the Counsel that appeared for the Appellant at the Upper Area Court on 21/03/2012?
The 1st and 2nd Respondents also raised two Issues in their brief of argument for
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consideration in this Appeal. The two (2) Issues read:-
I. Whether the Court below was right to have held that the Appellant cannot complain of violation of her right of hearing by the trial Upper Area Court; and
II. Whether the Court below was right to have held that any defect arising from the procedure adopted, in the sale of the property had been cured by the ratification of same by the counsel who appeared for the Appellant at the trial Upper Area Court.
On their part, the 3rd, 4th and 6th Respondents in their joint brief of argument raised only one Issue for determination and it reads:-
“Whether based on the facts and the circumstances of the proceedings at the Upper Area Court (the Court of 1st instance) the Judge was not right in dismissing the Applicant’s Application for lacking in merit.”
The 5th Respondent also raised one Issue for consideration. The Issue is:
1. Considering the facts and circumstances of this case, whether the High Court was not right in holding that the Appellant cannot complain of being denied fair hearing before the Upper Area Court (1st instance Court).
?
On 9th February 2016, when this
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Appeal came up for hearing, the 1st and 2nd Respondents informed this Court that they filed, on 25th November 2014, a notice of preliminary objection against the hearing of this Appeal as the Appeal is incompetent and as such this Court lacks jurisdiction/ competence to entertain it. Their preliminary objection is based on three grounds that:-
1. The motion on notice with which the Appellant’s action was initiated at the High Court was neither dated nor signed.
2. The Suit of the Appellant was not initiated at the Court below by due process of law.
3. The Court below lacked the jurisdiction to entertain the Suit.
In the same vein, the 3rd, 4th and 6th Respondents also draw the attention of this Court to their joint Notice of preliminary objection filed on 6th June 2014 against the hearing of the Appeal. The objection which is similar to that of 1st and 2nd Respondents and therefore no need to re-print it.
It should be noted that, all the arguments in relation to these preliminary objections raised are contained in their respective brief of arguments which are adopted relied upon and urge the Court to uphold them.
?In
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response, the Appellant told this Court that he replied each objection in the Amended Appellant’s reply brief, from pages 3-7 thereof. The reply briefs is adopted and relied upon as the argument in response and urged the Court to dismiss each objection and determine the Appeal on its merit.
On the main Appeal, the Appellant, in accordance with the Rules of this Court filed the Appellant’s brief of argument on 13th March, 2014 which was adopted and relied upon, and urged the Court to allow the Appeal. Also on receipt of the Respondent’s brief of argument, the Appellant’s Reply brief of argument, in response, was filed on 29th April, 2015 which was later amended with the leave of this Court granted on 8th June 2015. The amended Appellant’s reply brief was adopted and relied on and the Appellant finally urges this Court to allow the Appeal.
?The 1st and 2nd Respondents filed their joint brief of argument on 25th November 2014 and it was deemed as properly filed and served on 25th April 2015 having been filed out of time. The brief was adopted and relied on by the 1st and 2nd Respondents and urged the Court to dismiss the Appeal for lacking
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merit.
The 3rd, 4th and 6th Respondents filed their joint brief of argument on 30th April 2014 and deemed as properly filed and served on 15th April 2015 having been filed out of time. They adopted and relied on it and urged the Court to dismiss the Appeal.
The 5th Respondent filed his brief of argument on 9th April 2015 which he adopts and relies on, and urges the Court to dismiss the said Appeal for lacking merit.
Considering the Grounds of Appeal, Issues raised by each party to this case as well as the Record of Appeal, it is appropriate for me to fall back on the more comprehensive Issues formulated by the Appellant.
At this stage, it is necessary to deal with the preliminary objections of the Respondents.
The 1st, 2nd, 3rd, 4th and 6th Respondents’ complaints centered on failure of either the Appellant or the counsel representing her to sign and dated the originating motion giving rise to this Appeal, and therefore the Suit was not initiated by due process of law which robbed the High Court its jurisdiction to entertain the matter.
?In response, the Appellant contended that the originating process was signed
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by the Appellant’s Counsel in the name of “Chief Henry Akunebu” who wrote his name as registered in the legal Practitioner Register. Since the name of the legal Practitioner representing the Appellant was stated on the body of the motion papers that suffices as a signature and the case of SLB CONSORTIUM LTD. v. NNPC (2011) 9 NWLR (Pt. 1252) 317 AT 331-332 was cited in support of the contention.
On the issue of date, it was submitted that since the motion duly paid and filed, even if it is undated it is competent and the case of AYOOLA v. YAHAYA (2005) 7 NWLR (Pt. 923) 122 AT 135 was relied.
I have examined the document in question, and from its nature, it is an originating Court process which was used to initiate the Civil Suit challenging the trial of the Upper Area Court in SUIT No. UAC/CVFM/14/2010. The originating motion filed in this case was given in the prescribed form. It stated the name and address of the legal practitioner representing Appellant as CHIEF HENRY AKUNEBU, AKUNE AKUNEBU & CO. 69. EBUTU UKIWE, STREET. JABI-ABUJA.
?It is important to point out that a process prepared and filed in a Court of law by a Legal
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Practitioner must be signed by the Legal Practitioner. And by the provisions of Federal High Court (Civil Procedure) RULES 2000, an originating Court process must be signed by the legal Practitioner or by a Plaintiff if he sues by himself. See ORDER 3, RULE 12 (3) THEREOF. By the wordings it is mandatory and not discretionary. The question in this circumstance of the Case is what suffices as signature?
HOWEVER, in the REGISTERED TRUSTEE OF APOSTOLIC CHURCH, LAGOS AREA. v. RAHAMAN AKINDELE (1967) NMLR 263 in which, following the success of objection to the Application of the Appellants for registration as owners of some land, the firm of Solicitors of J.A. Cole & Cole filed a Notice of Appeal at the High Court, Lagos against the Ruling. In signing the Notice of Appeal, learned Counsel used his name in which he was called to Bar and enrolled at the Supreme Court i.e. “J. A. Cole”. After the hearing of the Appeal the trial Judge drew his attention to the fact that ORDER 3. RULE 2 OF THE HIGH COURT OF LAGOS (APPEALS) RULES had not been complied with because the firm of J.A. Cole & Cole is not a legal Practitioner under the Legal Practitioner Act
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1962 and consequently dismissed the Appeal. Upon appeal to the Supreme Court, the Court allowed the Appeal holding at P.265 Inter-alia as follows:
“The notice filed in this Case was given in the prescribed form. It stated the name and address of the legal Practitioner representing the Appellants as “Messrs. J.A. Cole and Cole. 14/16 Abibu Oki Street Lagos” and was signed,
J. A. Cole
For J. A. Cole & Cole”
The Court went and held that,
Mr. J. A. Cole. is admitted a duly registered Legal Practitioner and entitled to practice as such under the Legal Practitioners Act, 1962. He has no partner in his practice. ?. in signing the notice of appeal, Mr. Cole used his own name that is to say, the name in which he registered as a legal Practitioner. We hold that on any interpretation of the Rules; that was a sufficient compliance with them. ……………..”
The above decision clearly states that a process prepared and filed in a Court of Law by a legal Practitioner must be signed by the Legal Practitioner and that;
“It is sufficient signature if the Legal Practitioner simply writes his own name over and above the name of
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his firm in which he carries out his practice.”
In the instance, the name of ‘Chief Henry Akunebu’ had been written, and written on top of the name of his firm in which he carries his practice as follows:-
“CHIEF HENRY AKUNEBU
PP. AKUNEBU, AKUNEBU & CO.
69 EBITU UKIWE STREET,
JABI-ABUJA”
Applying the principles of law stated in the case of R.T.A.C. v. RAHAMAN AKINDELE (Supra), I hold that since the originating motion in dispute had the name of “Chief Henry Akunebu” written on it and the name was written on top of Chief Henry Akunebu Akunebu & Co., because he is a legal Practitioner registered to practice law in the Roll at the Supreme Court, that suffices as signature. See the case of OKAFOR & ORS v. NWEKE & 4 ORS. (2007) 10 NWLR (Pt. 1043) 521.
On the issue of dating Court process, inAYOOLA v. YAHAYA (2005) 7 NWLR (Pt. 923) 122 AT 135 this Court held that an undated process which was duly paid for and filed, is a valid process. In view of this decision, I am of the view, that the failure of the originating motion in dispute to have been dated cannot invalidate process of a Court once it is duly
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filed with the date of payment of filling fees.
In the circumstances, I find no merit in the preliminary objections raised by the 1st, 2nd and 3rd – 4th and 6th Respondents and accordingly, dismissed by me. I hold that the originating Court process giving rise to this Appeal was initiated by due process of Law and is competent in initiating the proceedings which gives the High Court Jurisdiction to hear and determine the action instituted before it.
On the 5th Respondent’s preliminary objection, he complains that since the Appellant’s case before the Court of 1st instance (Upper Area Court) was based on Islamic personal Law of Succession and the nature of the Appellant’s case before the High Court was a complaint against the circumstances leading to the Order of the Upper Area Court appointing the public auctioneer to sell the deceased husband’s property, the only appropriate step the Appellant ought to have taken against the said Order of the Upper Area Court was to appeal to Sharia Court of Appeal since High Court has no jurisdiction over this matter.
?
The 2nd objection relates to Records of Appeal, which the 5th Respondent challenged
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as incompetent because it does not contain the copy of the Judgment/Ruling appealed against. In other words, the record is incomplete.
In response, the Appellant contended that she has the Constitutional right to go to High Court to seek redress, once her Constitutional right is breached. That, the Record of Appeal was incomplete.
I should remind the learned Counsel for the 5th Respondent that the Appellant went to High Court by virtue of Section 46 of the Constitution (supra). It says:
“46(1) any person who alleges that any of the provisions of this chapter (i.e. Chapter iv) has been, is being or likely to be contravened in any in relation to him. May apply to a High Court in that State for redress.”
Also, Sub-Section (2) of the above Section gave special original jurisdiction to a High Court to hear and determine such type of Application.
Chapter IV deals with the fundamental rights. And from the record of this case, the Appellant complains against the denial fair hearing by the Upper Area Court to her. See PARAGRAPHS 15, 17 AND 19 of the affidavit in support of the originating motion. Thus the initiating of the case giving
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rise to this Appeal. The objection on this part also fails.
On the issue of incomplete Record of Appeal as alleged by the 5th, Respondent, I wish to point out that by virtue of the Court of Appeal Rules 2011, the settlement of documents to be included in the Record of Appeal, its certification and transmission is the duty of the Registrar of the trial Court. The presumption here is that the record of proceedings at the Court is correct and very applies. See ADEYIGA v. MIL. GOV. LAGOS STATE (1999) 11 NWLR (Pt. 628) 616. If the 5th Respondent is challenging the accuracy of the record of proceedings, he had the singular duty of swearing to an affidavit setting out succinctly the facts and parts of the proceedings said to have been omitted. The Application together with the affidavit should be served on the trial Judge or the Registrar of the Court below who will then swear to a counter affidavit if he desires to challenge the affidavit of the party asserting that the record is incorrect. SeeEHIKIOYA v. C.O.P. (1992) 4 NWLR (Pt. 233) 57. The 5th Respondent in this case did not do that. In the event he cannot be heard to be challenging the accuracy of the
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record now before this Court through preliminary objection.
In the light of what I have said above, the preliminary objection raised by all the Respondents herein, failed and accordingly over-ruled and dismissed.
In the event I am wrong, I now proceed to consider the Appeal on its merit.
ISSUE NO .1
Coming back to the main Appeal the Appellant’s compliant under this issue is that the Upper Area Court (the Court of 1st instance) appointed an auctioneer, one Oloyede Oyediran to sell the Appellant’s late husband’s Estate behind the Appellant’s or her Counsel’s back. Thus, the Appellant was denied right to participate in the selection processes of the said auctioneer. That a number of proceedings including the one approving of the sale of the property were conducted behind her back, consequence upon non-service of hearing notices to her or her Counsel.
In response, the 1st and 2nd Respondents denied the claim and submitted that the auctioneer (Mr. Oloyede Oyediran, Esq.) was not appointed by the Creditors but was actually appointed by the Court upon the fact and circumstance warranting the Variation of the earlier Order made in
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favour of all the parties to appoint auctioneer by themselves. They also submitted that the record of the Court of 1st instance captures the fact that the said Court ordered service of several hearing notices on the Appellant and same were served but the Appellant or her Counsel absented themselves, and page 58 of the record was referred. They contended that no right of fair hearing of the Appellant has been denied or breached. That the alleged adjournment dates 18/5/11 ? 25/1/12, about 8 months or 6 adjournments which she had no notice merely go to conform the indolence, unseriousness and non-diligence of the Appellant. That, as the Plaintiff, the Appellant is expected to be concerned about the prosecution of her case by making enquiry about the dates same was adjourned to, having absented herself from Court without reason on the date to which she had notice of. They finally urge the Court to resolve this Issue in their favour.
?The 3rd, 4th and 6th Respondents on their part submitted, under this Issue that the Appellant cannot, on point of law and fact, alleged being denied fair hearing in the circumstances of this case because the Appellant’s
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Counsel was in Court and participated on the day the Order was granted to the auctioneer to take over the sale, after the Appellant failed to sell the property.
Similarly, the Appellant’s counsel was in Court and participated in the proceedings when the auctioneer rendered the report of sale of the property in the open Court, and the Appellant has the custody of proceeds of the auction’s sale same having been lodged in the Bank Account of the Appellant’s Counsel upon his request. Page 58 of the record was referred. They further submitted that with the ratification of appointment and sale of the property by the Appellant’s counsel, the Appellant is deemed in law to have waived (if any) the alleged fair hearing infraction or any other. That the scope of Counsel conducting a case to act in a particular manner or compromise the case binds his client except or unless where there is no instruction or authority is expressly limited in any way to act and the Appellant has the burden, which she has failed to prove at the trial Court. The case of ADEWUMI v. PLASTEX LTD. (1986) 3 NWLR (Pt. 32) 767 was referred, to support the fact that the Appellant’s Counsel
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decision to ratify or supports the appointment and the sale of the property by the named auctioneer 21/3/2012 cannot be faulted and the trial High Court was right to have held so. They urged the Court to dismiss the Appeal.
?The 5th Respondent, under this Issue submitted in a nutshell, that considering the facts and circumstances of the instance, the Appellant cannot complain of being denied fair hearing in the appointment of the auctioneer and subsequently sale of the property by him. His reason was that in the subsequent adjournments, the Upper Area Court was informed of the inability of parties themselves to come together to appoint a public auctioneer. That on 21/11/2011 the attention of the Upper Area Court was drawn to the expression of interest by the said auctioneer to sell the property if appointed. Then he was subsequently appointed by the Upper Area Court. And on 21/3/2012 the sale’s transaction was reported to Court in the presence of the Appellant’s Counsel. That there is nothing in the record showing that Appellant’s Counsel had been deprived of fair hearing on the appointment of the auctioneer or the sale of the property. He urges this
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Court to dismiss the Appeal.
In the instance case, the Appellant alleged that she was not aware that an auctioneer, to sell her late husband’s landed properly at Ikorodu, Lagos State was appointed by the trial Upper Area Court, for purposes of settling outstanding debts in accordance with Islamic Law. She also alleged that no hearing notices were served on her or her Counsel to enable them appear on hearing dates when adjournments were granted.
From the facts and circumstances of this Appeal, the complaint of the Appellant is based on the violation of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (As amended), which provides:
“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 by law and constituted in such a manner as to secure its independence and impartiality.”
?The Sub-Section of the Section confers on every citizen with a grievance the right of access to the Courts. It leaves the doors of Courts
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open to any person desiring to ventilate his grievance there. It also makes it obligatory on the Court or Tribunal that will determine the rights of the person to accord him fair hearing. ‘Fair hearing’ in the con involves:
1. a hearing that does not contravene the principles of natural justice and;
2. a hearing that must consist of the whole hearing when tested from the point of view of a reasonable person who was present at the trial, whether, from his observation justice has been done in the case. Sub-Section (1) of 36 entrenches the common law concept of natural justice with its pillars, namely:
a. that a man shall not be condemned unheard, and
b. that a. man shall not be a judge in his own cause.
See:-
Deduwa v. Okorodudu (1976) 9-10 & C 329 at 346.
Mohammed v. Kano N.A. (1969) 11/11 NLRB 424 AT 426.
The burden is on the Appellant to show that the adjudication by the Upper Area Court (1st instance Court) complained of, led to a failure of justice. In other words, the Appellant who alleges that she has been denied right to a fair hearing must show that her civil rights and obligations have been
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adversely affected by the alleged breach.
I have carefully read the proceedings of the trial Judge of Upper Area Court. After filing the case it was then set down for hearing. The case from the record before this Court suffered several adjournments between 14th April 2010 and 21st March 2012. When the trial Judge of the Upper Area Court, received the report of sale’s transaction of the property in question and sanctioned same. However in the middle of proceedings in which the Sale report was accepted and approved, the learned Counsel for Appellant appeared in Court and announces his appearance for the Appellant. Thereafter the case was adjourned to 25th April 2012 for continuation of hearing.
It is so glaring on the record of this Appeal that the first time this Suit No. UAC/CV/FM/14/2010 came up before the trial Upper Area Court was on 14/4/2010. And from 18/5/2011 ? 25/1/2012 about 8 months, the case suffered a number of adjournments about 8. In all these adjournments, there was no time when the trial Upper Area Court ordered hearing notice to be issued to the Appellant or her Counsel. For instance, on 16/3/2011 when the case came up
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from hearing the Appellant and her Counsel were both absent. Other parties’ Counsel present asked the trial Upper Area Court to vacate the order granting the Appellant leave to sell the home in question since she failed to get the buyer and the request was refused and the case was adjourned to 6/4.2011. The record did not indicate that hearing notice was ordered to be served on the Appellant or her Counsel. On 18/5/2011 the case came up for hearing and both Appellant and her Counsel were absent as there was no service of hearing notice to either of them. But 2nd, 4th, and 5th Respondents were ordered to be served when case was adjourned from 18/5/2011 to 29/6/2011 for continuation of hearing. On 29/6/2011 the Court did not sit until 17/8/2011, and on that adjourned date, the Court again further adjourned the case to 28/9/2011 in the absence of both Appellant and her Counsel and the record did not indicate that hearing notice was ordered to be served on either of them. From 28/9/2011, the Court after sitting for hearing, in the absence of Appellant or her Counsel, adjourned the matter to 21/11/2011 and no order for service of hearing notice to either Appellant
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or her Counsel. Even, the 4th and 5th Respondents who were absent and not represented were not ordered to be served with hearing notice against 2/11/2011. On this 2/11/2011, the record indicated that Appellant was absent and not represented as well as 4th and 5th Respondents. The Court resumes for hearing. It was on this day that Counsel to the 1st and 3rd Claimants/Creditors that moved the oral application urging the trial Upper Area Court to appoint the auctioneer who will dispose of the property in question situate in Ikorodu Lagos State and the application was granted. Thereafter the matter was further adjourned to 7/12/2011 hearing notice was not indicated to be served on the Applicant or her Counsel but ordered to be served on other parties.
?Further again, on 7/12/2011, the Appellant and her Counsel, as well as 4th and 5th Creditors and their Counsel for non-service of hearing notice, were absent and as indicated from the record, the trial Court sat for continuation of hearing and was told that the auctioneer got the buyer but the buyer was interested in inspecting the documents of title deed for which arrangement have been concluded to meet
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the auctioneer and the buyer on 8/12/2011. The Court then adjourned to 14/12/2011. Hearing notices were ordered to be served on the parties absent but Appellant or her Counsel was not included. Despite the previous numerous non-issuance and services of hearing notices on the Appellant or her Counsel as well as 4th and 5th Creditors, when the matter came up on 14/12/2012, the Plaintiff and her Counsel as well as Counsel to 4th and 5th Creditors were absent due to non-service. The Court resumes for hearing and was told by the Counsel to defendants that the document of title deed was just received and will soon be sent to the auctioneer. Then the Court adjourned to 18/1/2012 without ordering hearing notices to the Appellant or her Counsel. The Court did not sit and proceedings did not go on 18/1/2012, rather proceedings came up on 25/1/2012, and Appellant or her Counsel were absent. After proceedings the case adjourned to 22/2/2012, also without hearing notice served on the Appellant or her Counsel only to the parties. The record did not show that proceedings took place on 22/2/2012 but were conducted on 21/13/2012 when the auctioneer applied that the sale’s
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transaction concluded be approved by the Court. There was no evidence that the Appellant or her Counsel was served with hearing notice against 21/3/2012.
From the foregoing it can be clearly realized that proceedings mentioned above, including the proceedings on the date the auctioneer was appointed and that of vacating the order allowing her to sell the properties of her deceased husbands were taken in her absence due to lack of service of hearing notice. She had been completely excluded from the nomination process due to non-service of hearing notice.
The issue of service of Court process is essential. I am not unmindful of the fact that Appellant’s Counsel fails to appear in some days but in OGUNDOYIN v. ADEYIMI (2001) 13 NWLR (Pt. 730) 403, the Supreme Court clearly decided that where a party fails to appear in Court, the Court owes it as a duty to examine its records to determine whether the party was served with the hearing notice but deliberately absented himself including his Counsel from Court and did not take opportunity of being heard. When the Appellants’ were not heard before their Appeal was dismissed they were not by any stretch
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of imagination given a hearing by the Court below.
Similarly, from the record it could be seen that Appellant’s Counsel repeatedly absents himself from Court. In that situation the only procedure to take is to issue a hearing notice. Hearing notice is the Court’s process by which a party to the proceedings is notified of the date the matter has been fixed in Court when he is not otherwise aware of such date.
However, one may argue that the Appellant’s Counsel or Appellant did not show much diligence in prosecuting this case at the trial Upper Area Court. I am unable to agree with that considering the record of Appeal, the Appellant was actually not given opportunity to represent her case by the trial Court, particularly the day the auctioneer was appointed and the proceedings of 25/3/2012.
With the above fundamental lapses graphically illustrated and which marred the Upper Area Court proceedings in the Suit, I am of the view that Appellant was not accorded fair hearing as enshrined in Section 36 of the said Constitution.
?I hold that the omission to afford the Appellant opportunity to participate in at least the eight (8)
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adjourned dates, particularly that of 02/11/2011 when the auctioneer was appointed and that of 21/03/2012 when the sale’s transaction was purportedly prayed to be sanctioned by the other parties, is fundamental vice. It has substantially affected the proceedings of the trial Court in whole.
This first Issue is therefore resolved in favour of the Appellant. This leads me to the second Issue.
ISSUE NO. 2
Under this Issue the question for consideration is whether the defect (if any) that may have arisen in the procedure adopted in the sale of the property in question had been cured by the ratification of same by the Appellant’s counsel that appeared on 21/3/2012. In the Appellant’s brief, it is submitted that appointment of the auctioneer was illegal and therefore the purported ratification by the Appellant’s Counsel on 21/3/2012 notwithstanding cannot in law give life to the already defective sale. For to do otherwise would be to lightly slide away the excruciating agony of the widowed Appellant and adorn the reins of injustice foisted on her with the bright and ever radiant colours of Justice. On this reason, the Appellant urges this Court
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to resolve this Issue in favour of the Appellant and hold that the High court was wrong.
On their part and in response, the 1st and 2nd Respondents submitted that any procedure consented to the Counsel binds the Client. The case of OKESUJI v. LAWAL (1991) 1 NWLR (Pt. 170) 23. It was further submitted that the Appellant’s counsel, there and then did not object the procedure adopted in disposing the property, and the Appellant therefore deemed in law to have waived, if any, the alleged fair hearing denial since her Counsel ratified the sale. They finally urge the Court to resolve this Issue in favour of the 1st and 2nd respondents.
The 3rd, 4th and 5th Respondents even though did not adopt the 1st and 2nd Respondents arguments in the brief as their arguments under this Issue, their arguments are same and therefore no need to repeat it.
The 5th Respondent did not say anything on this Issue.
In this Judgment, the first aspect of the Appeal dealt with is that raised by the first Issue for determination, namely, whether the trial Upper Area Court Judge in conducting his trial in this Suit, the Appellant had a fair hearing in terms of
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Section 86(1) of 1999 Constitution (as amended).
The question here, is, can right to fair hearing be waived? In the present Appeal, the Respondents contended that the Appellant waived her right to object at the first opportunity. On the question of waiver, it does appear to me that Appellant cannot be regarded as having completely waived her right to complain about breaches of right to fair hearing arising from depriving her of an opportunity of being heard or as in this case, where there is no procedural equality between the parties, if indeed there was sufficient material to that effect. From the record of the Appeal before me, it is my considered view that there is sufficient material to sustain the allegation of denial of fair hearing and procedural inequality between the parties before trial Upper Area court. See the proceedings of 2/11/2011 and subsequent adjournments, as well as repeated selective issuance and services of hearing notices on same parties’ i.e. the 2nd, 4th and 5th Respondents/Creditors without same opportunity to the Appellant or her Counsel at several adjournment dates. SeeFALADU v. KWAI (2003) 9 NWLR (Pt. 826) 643 and UDE v.
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A.N.G. RIVERS STATE (2002) 4 NWLR (Pt. 756) 66. This Issue is resolved therefore in favour of the Appellant.
For what I have stated above, the Judgment of the High Court dated 07/11/2012 refusing to quash the proceedings and Orders of the trial Upper Court, Ilorin, in Suit No. UAC/CF/M/14/2010 is hereby set aside. Having regard to the above decision of mine, the whole proceedings of the trial Upper Area Court, Ilorin in Suit No. UAC/CF/M/14/2010 is hereby quashed.
Accordingly, this Appeal is allowed, it is ordered that the case be remitted to the Chief Judge of Kwara State to be tried before another Judge other than Y. A. Abdul Hamid.
No costs ordered in favour of the Appellant.
HUSSEIN MUKHTAR, J.C.A.: It is a well established principle of law that failure to serve hearing notice on a party, who was not in Court when date is fixed or adjournment taken regarding proceedings therein is a fundamental vice. Service is a condition precedent to the exercise of jurisdiction by the Court seized with a matter. Mere entering of appearance or attendance at some previous sittings of the Court does not in any way whittle down the
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Appellant’s right to be served with hearing notices in several adjournments particularly the fixtures made on 2nd November 2011 and 21st March 2012 when auctioneer was appointed and sale of the jointly-owned property was approved in the Appellant’s absence.
Service on a party is fundamental and where it is not effected, the Court lacks the jurisdiction to proceed with hearing proceedings much less the determination of any issue in the case. The learned trial judge should therefore have declined to allow any stampede on the Appellant’s right by directing service of notice of the proceedings on her.
In my opinion, the participation of Appellant in part of the proceedings at the Court below did not extinguish her right to service of notice of subsequent proceedings fixed by the Court in her absence and it did not amount to a waiver.
For the more articulated reasons given by my learned brother M. L. Tsamiya, J.C.A. in the leading judgment, with which I agree entirely and fully adopt the conclusion that the appeal is meritorious, is glaringly destined. I allow the appeal and subscribe to all the consequential orders in said
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judgment.
CHIDI NWAOMA UWA, J.C.A.: I had the privilege of reading in advance the judgment delivered by my learned brother, Mohammed Ladan Tsamiya, JCA. The issues have been comprehensively dealt with and resolved. I agree with the reasons and conclusion arrived at, in that the appeal be and is allowed. Also, the order remitting the case to the Chief Judge of Kwara State for the matter to be tried de novo by another Judge other than Y. A. AbdulHamid, J. of the High Court of Kwara State.
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I abide by the order awarding no costs.
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Appearances
Adekunle Ojo, Esq. with him, Oluwatosin Adegun (Miss)For Appellant
AND
G. R. Moyosore, Esq. (PSC, Ministry of Justice, Kwara State) for 1st and 2nd Respondents
Y. L. Akanbi, Esq. with him Y. J. Ayodele, Esq. and F. M. Ageba, Esq. for 3rd, 4th and 6th Respondents
Y. A. Alaja, Esq. with him, L. O. Bello Esq. for 5th RespondentFor Respondent
