JONATHAN ODULATE & ORS v. DUPE ODULATE
(2016)LCN/8567(CA)
In The Court of Appeal of Nigeria
On Thursday, the 5th day of May, 2016
CA/I/75/2012
RATIO
COURT: DUTY OF COURT TO BE ALERT AND NOT BREACH ANY CONSTITUTIONAL PROVISION
In all proceedings, the Court must always use its third eye to ensure that it does not fall into any trap set up by any of the parties. The Court must be alert and ensure that it does not breach any Constitutional provision in the course of upholding its dignity in all proceedings. Thus, the dictum in the case of: – NEWSWATCH LTD VS. IBRAHIM ATTAH (2006) NSCOR (Pt.1) page 463 that:-
“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 slumbered, the indolent or the lazy litigants but it is for the party kicking who is alive and kicking in the judicial process by taking advantage of the principle is not available to a party who set a trap in the litigation process against the Court and accuse the Court of assumed wrong doing even when such so-called wrong doing is as a matter of fact propelled or instigated by the party….” is not applicable in breach.
Only when all the legal loopholes are dully plugged up by meticulous compliance with fundamental injunctions such as Constitutional provisions may the Court proceed. With due respect to the learned trial Judge the Court had already enslaved itself to the parties by waiting for three years without moving to rid itself of a matter weighed down by reluctant participants/parties. Order 30 of the Ogun State High Court (Civil Procedure) Rules empowers the trial Court to accelerate the hearing of a suit or foreclosing same for on-prosecution. PER MONICA BOLNAAN DONGBAN-MENSEM, J.C.A.
JUSTICES
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
1. JONATHAN ODULATE
2. IYABO ODULATE
3. ADETOUN ODULATE Appellant(s)
AND
DUPE ODULATE Respondent(s)
MONICA BOLNA?AN DONGBAN-MENSEM, J.C.A.(Delivering the Leading Judgment): This appeal challenges the decision of the Ogun State High Court holden at the Sagamu Judicial Division Coram Justice S. O. Olusanya (J.).
The Judgment was delivered on the 31st July 2007 and it is contained on pages 16-19 of the Record of Appeal while the proceedings of the Court leading to the Judgment took place on the 27th July 2007 with only the Respondent giving evidence at the trial. It is on pages 13-15 of the Record.
The Appellants were opposed to the claims of the Respondent at the trial Court in respect of a disputed building at Adelarin Ogunlesi Street, Iwera off Oba Awolesi Road, Sagamu Ogun State. They claimed the said building to belong to their late Father Mr. Olanipekun Odulate who also was the Respondent’s husband as contained in their pleadings before the trial Court. See pages 11-12 of the Record.
From the sole ground of appeal, the Judgment of the learned trial Court and the arguments for and against the appeal, fair hearing is the thorny issue of this appeal.
?
The Appellants who were the Defendants at the trial Court allege that they were
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never given opportunity to be heard. The processes with which the suit went on trial were the Amended writ of Summons and statement of Defence shown on pages 11-12 of the Record.
The Appellants who are dis-satisfied with the Judgment of the trial Court filed with the leave of this Court, granted on 19th June 2008, (on page 22 of the Record), a Notice of Appeal dated 20th June 2008 but filed on the 3rd July 2008. The Notice and ground of appeal are at pages 20-21 of the Record for this appeal transmitted on the 21/05/14. The records were deemed dully filed on the 25/03/15.
The facts as presented by the Appellants are apt and are hereby adopted as part of this Judgment as follows:
The sole issue raised by the Appellants and adopted by the Respondent is:
“Whether or not the Constitutional principle of fair hearing under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 was breached by the Learned Trial Judge when he commenced the trial on the 27th July 2007 and delivered Judgment on the 31st July 2007 in the absence of the Defendants/Appellants and without giving them opportunity to present their case?.
?
The
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grouse of the Appellant is that the learned trial Judge failed to adjourn the matter to enable them to cross-examine the Respondent and give evidence in their own defence. That the Court thereby denied them a fair hearing in breach of the Section 33 of the 1979 Constitution and now Section 36 of the 1999 Constitution.
The Respondent’s case is that:
“Fair Hearing in the legal parlance means a trial of Court conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause. According to Black?s Law Dictionary, 8th Edition at page 738 Definition, fair hearing is defined to mean ?a judicial or administrative hearing conducted in accordance with the due process”. That fair hearing of a matter must be conducted within a reasonable time, that is, a period of time which in the search of justice does not wear out the parties and their witnesses and which is required to ensure that justice is not only done but appeared to reasonable person to be done. See the cases of:- EGBO VS AGBARA (1997) 1 NWLR (Pt.481) page 293 @ 314; ARIOBI VS. ELEMO (1983) l SCNR 1…? …conceded to a the fact that fair
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hearing is a Constitutional Right which is highly protected and if any party to a proceeding is refused and/or denied the opportunity to be heard, present his case or call witness, cannot be said or called a fair heard trial and such breach of fair hearing in trial vitiates such proceedings rendering same null and void.” See the case of:- ASSOCIATION OF NIGERIA CO-OPERATIVE EXPORTERS LTD VS CO-OPERATIVE BANK PLC (2004) ALL FWLR (Pt.209) pages 1039 @ 1065″. However contends that “where after both parties to a dispute have been fully notified of the hearing date and a party for no justifiable reason decides to opt out of the proceedings, the case of the other person once it is not discredited in any legal way should be the case of be considered on merit. The intention of the other party as to its refusal to take part is not the business of the Court”. See the cases of:- MILITARY GOVERNOR (LAGOS STATE) VS. ADEYIGA (2001) FWLR (pt.83) p.2137 ratio 3 @ 2155-2156 paragraphs H-B; OBINIAMI BRICK & STONE NIG. LTD VS. ACB LTD (1992) 3 NWLR (Pt.229) 260; NEWS WATCH COMM. LTD VS. ATTAH (2006) 12 NWLR (Pt.993) 144 @ 171, 173 & 175…”
?
The facts are undisputed
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that both parties filed and exchanged pleadings upon the order of the Court. However, after pleadings were exchanged, that the Appellants who were the Defendants at the trial, stopped attending the proceedings. The Respondent waited for (3) three years to no avail. By the order of the trial Court, the Appellants were subsequently served by substituted means. After proof of the said service of process by substituted means, the Court granted the Respondent leave to proceed in the absence of the three Appellants who were each sued in their individual capacities. At the close of the Plaintiff’s case the learned trial Judge allowed the learned Counsel to the Plaintiff to make a final address on the same day followed by an adjournment for Judgment.
Judgment was delivered two days thereafter without notice to the Appellants.
The relevant portions of the proceedings as captured in the Judgment at pages 15-17 is hereby reproduced:-
“Pleadings were ordered and served of the defendants showed up in Court at the hearing of this suit. The Plaintiff testified as only witness…. The Plaintiff urged the Court to grant her relief as claimed…”
“The learned counsel
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for the plaintiff…submitted that the Plaintiff has led credible evidence to prove her title and claims before the Court, citing SHADULU VS. ALGAITA (2005) 43 WRN PAGE 171? ?I had earlier mentioned above that the defendants in this case were duly served with the Hearing Notices in this case but chose to stay away at the hearing
It is trite law that where a party is given ample opportunity to present his case within the confines of the law but he chooses not to utilize same he cannot later be heard to complain that his right to fair hearing has been breached. Having provided the required atmosphere the duty of the Court stops there. It becomes the duty or choice of the party seeking to enforce his civil rights to utilize the opportunity so created – BILL CONSTRUCTION CO. LTD VS IMANI & SONS LTD/SHELL TRUSTEES LTD (2007) 7 WRN 152 @ 164.
I therefore agree with the submission of the learned Counsel for the Plaintiff that in this instant case the plaintiff needed minimal proof to establish her case”.
(At page 17-19 of the Record)”.
The records do not support this conclusion of learned trial Judge.
?Contrary to
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the submissions of the learned Counsel for the Respondent in paragraphs 3.05 and 3.06 of the Respondent’s Brief, the fact that Hearing Notices were issued by the Court before trial commenced would not justify the failure of the learned trial Judge to have issued Hearing Notices again on the 27th July, 2007 at the close of the plaintiff’s case which indeed commenced in the absence of the Appellants. The learned Counsel to the Appellants is irked and submits that the learned trial Judge did not allow the Appellants to give their evidence in support of their pleading filed in the Suit which the learned trial Judge did not deem to have been abandoned, nor were the rights of the Appellants to put their defence deemed closed before Judgment was delivered on 31st July, 2007. Cites TOLANI VS. KWARA STATE JUDICIAL SERVICE COMMISSION 2009 ALL FWLR Part 481 at page 880.
?
The above tit – bits from the Judgment of the learned trial Judge provide ample support to the argument of the Appellants that the learned trial Judge adopted a “Frog-jump Procedure” which clearly breached the Constitutional rights of the Appellants to be heard. However repulsive the conducts of the
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Appellants are, the Court must give them the benefit of the doubt before foreclosing them from the procedure. They must be invited by way of service of hearing notices. Having proceeded to take the case of the Plaintiff behind the Defendants, the next step was to invite the Defendants to enter their defence. If they failed to respond upon proof of having been duly served with the hearing notices, then the Court could proceed. It is at that point that the final address of the Plaintiff would be taken and then Judgment reserved.
In all proceedings, the Court must always use its third eye to ensure that it does not fall into any trap set up by any of the parties. The Court must be alert and ensure that it does not breach any Constitutional provision in the course of upholding its dignity in all proceedings. Thus, the dictum in the case of: – NEWSWATCH LTD VS. IBRAHIM ATTAH (2006) NSCOR (Pt.1) page 463 that:-
“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 slumbered, the indolent or the lazy litigants but it is for the party kicking who is alive
8
and kicking in the judicial process by taking advantage of the principle is not available to a party who set a trap in the litigation process against the Court and accuse the Court of assumed wrong doing even when such so-called wrong doing is as a matter of fact propelled or instigated by the party….” is not applicable in breach.
Only when all the legal loopholes are dully plugged up by meticulous compliance with fundamental injunctions such as Constitutional provisions may the Court proceed. With due respect to the learned trial Judge the Court had already enslaved itself to the parties by waiting for three years without moving to rid itself of a matter weighed down by reluctant participants/parties. Order 30 of the Ogun State High Court (Civil Procedure) Rules empowers the trial Court to accelerate the hearing of a suit or foreclosing same for on-prosecution. The case of NEWS WATCH VS ATTAH is therefore not applicable in this appeal.
?In this appeal, the failure of the learned trial Judge to issue hearing notices on the Appellants and dully record the fact of proper service of such hearing notices on each of the Appellants is the undoing of the
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procedure. The substituted service effected before the hearing on which the Court received the evidence of the only witness of the Plaintiff had served its purpose. The Plaintiff having closed her case, it was incumbent on the trial Court to issue fresh hearing notices on the Defendants to come forward and enter their defence. If after being dully served the hearing notices, the Defendants failed to appear on the date set down, then the Court could foreclose them and deem their non-appearance as want of interest.
Having failed to do that the learned trial Judge rushed to judgment and thereby sacrificed the rights of the Appellants to fair trial on the altar of quick disposal.
In the circumstance, the learned trial Court acted without jurisdiction by entering Judgment behind the Appellants and without notice to them to participate in the proceedings. The learned trial Court therefore acted in error which vitiates the proceedings and thereby renders the proceedings of the Court a nullity.
?
This appeal therefore succeeds. The Judgment of the Court and the proceedings leading thereto is hereby set aside. A fresh trial is hereby ordered for the proper
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determination of the rights of the parties.
Accordingly, a trial de novo is hereby ordered before another Judge of the Ogun State High Court as shall be directed by the Hon. Chief Judge of Ogun State High Court.
A cost of N30,000.00 is hereby award to the Appellants and against the Respondent.
HARUNA SIMON TSAMMANI, J.C.A.: I had a preview of the judgment just delivered by my learned brother, M. B. Dongban-Mensem, JCA. It is obvious on the record that the Appellant was denied a hearing before the Court below entered the judgment in this case, and which judgment damnified him. That judgment is a null judgment and is accordingly set aside.
On that ground, I concur with the order for a fresh hearing as ordered by my learned brother. I also abide by the order on costs.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of a preview of the judgment of my lord Monica Bolna’an Dongban-Mensem JCA and I agree with both the reasoning and conclusion reached by my lord. One of the twin pillars of the rules of natural justice is expressed in the Latin maxim audi alteram partem which means hear the other side. This implies the
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need to hear the other side not some of the time, but all of the time. Once a matter is commenced in Court, there is a duty on the part of the Court to ensure always that the parties are aware of the proceedings as they progress. Where a party skips a hearing date, it will be necessary to intimate that party of an adjourned date through the issuance of a hearing notice or some other legally acceptable means of notifying the party unless the party already knows or is reasonably presumed to know the date the matter is slated for hearing. Where the party is so notified and chooses to stay away, then the party cannot complain that he has not been notified. In the matter on appeal before us, the lower Court did not scrupulously ensure that service of a Hearing Notice had been effected on the Appellants. By that lack of scrupulousness on the part of the lower Court, the Court had denied the Appellants their right to fair hearing. In the circumstances, the proper thing is to ensure, that they are availed of that right and that can only be done in this instance by ordering that the matter be commenced de novo.
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Appearances
A. Ajetunmobi, Esq.For Appellant
AND
Adeola A. Adekagun, Esq.For Respondent
