MALACHY OKOLO & ANOR v. WALTER IBEZIM & ANOR
(2018)LCN/11802(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of June, 2018
CA/E/553/2016
RATIO
THE COURT MUST HEAR AND DETERMINE A MOTION
It is now a settled law that once a motion is brought to the notice of the Court, the Court is duty bound to hear and determine the motion no matter how regular, frivolous or stupid they may appear especially one challenging the jurisdiction of the Court. The Court has a duty to hear all pending motions before delivery of final judgment in a matter. Failure or refusal to hear a pending motion before judgment is delivered is a denial of fair hearing guaranteed by the Constitution and a breach of the rule of natural justice though it is not in all cases that failure to hear a pending motion before delivery of judgment is fatal to the proceedings. per MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
PROPER PROCESS OF ORIGINATING SERVICE AND JURISDICTION OF THE COURT
It is trite law that proper service of the originating processes on a party to the proceedings is a condition precedent to the exercise of the Courts jurisdiction. Where there is no proper service of the originating process, the Courts jurisdiction is not activated. per MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
THE ESSENCE OF SERVING A COURT PROCESS
The law is settled that service of a Court process and hearing notice where the law requires service on the parties to the proceedings is mandatory for proper activation of the Courts power to exercise its jurisdiction to adjudicate on a matter brought before it. The purpose of service of hearing notice is to notify the parties of the pendency and date fixed for the case in Court. It is trite law that failure to issue and serve hearing notice on a party where one is required renders the proceedings conducted in his absence a nullity and liable to be set aside. per MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBE, Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR, Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF, Justice of The Court of Appeal of Nigeria
Between
- MALACHY OKOLO
2. GABRIEL OKOH Appellant(s)
AND
- WALTER IBEZIM
2. ANTHONY OKOH Respondent(s)
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment):
Walter Ibezim, the 1st respondent in this appeal Instituted Suit no. E/170/2013 at the High Court of Enugu State, Enugu Judicial Division and claimed the following reliefs against the appellants and the 2nd respondent:
“1. A declaration that the plaintiff is entitled to the right of occupancy over and in respect of plot 181, New Homeland II, lying and situate at Umuchigbo Iji Nike.
2. An order of perpetual injunction restraining the defendants acting by themselves or through their agents, servants or privies from interfering by ways of acts of trespass with the plaintiffs right to ownership and enjoyment of the said plot 181, New Homeland II, lying and situate at Umuchigbo Iji Nike.
3. The sum of Two Million Naira (2,000,000.00) being special and general damages against the defendants for their use of building materials belonging to the plaintiff and their acts of trespass on plot 181, New Homeland II, lying and situate at Umuchigbo Iji Nike.
When the Court processes could not be served on the 2nd and 3rd defendants who are now the 1st appellant and 2nd respondent in this appeal that is Gabriel Okoh and Anthony Okoh, the 1st respondent applied for an order of substituted service by pasting the processes on the land in dispute. The application was granted on 30/10/2013. On 30/9/2014, the appellants applied by a motion on notice for an order setting aside the order of substituted service and service of the Court processes on them. While the application was pending, the 1st respondent by a motion on notice filed on 14/10/2014 applied for an order entering judgment in his favour and against the appellants and 2nd respondent. The two applications were still pending on 23/2/2015 when the 1st respondent filed a notice of preliminary objection to the hearing of the motion filed on 30/9/2014 seeking an order to dismiss or strike out the motion on the ground that the 2nd appellant has no locus standi to institute the action and the Court lacks the jurisdiction to entertain the motion as constituted. All the applications stated above were pending on 9/1/2015 when the 1st respondent filed another motion on notice seeking the following declarations:
“(1) The declaration that the defendant/respondents have no opposition and thus do not intend to oppose the position of plaintiff/applicant as canvassed in his reply to their defendants/respondents motion on notice and finally his plaintiff/applicants Notice of Preliminary Objection.
(2) A declaration that 1st and 2nd defendants/respondents have no application before the Honourable Court.
(3) A declaration that there is no dispute between the plaintiff/applicant, and the 3rd defendant/respondent.
(4) A declaration that 2nd defendant/respondent has no issue against the plaintiff/applicant.
(5) An order of the Honourable Court entering judgment in his (plaintiff/applicant) favour as per his claim dated 18th April, 2013, filed on 19th July, 2014, and filed on 6/8/2014 and also to graciously grant all his (plaintiff/applicants) reliefs.
On 24/6/2016, the 1st respondent filed a motion on notice seeking an order to set down the four motions stated above down for hearing. On 18/12/2013 when the case came up before the Honourable Justice A.R Ozoemena, the respondents were present. The matter was adjourned to 18/2/2014 for report of settlement.
On 18/2/2014, only the 1st respondent was present. The motion for interlocutory injunction was moved and granted. The case was adjourned to 11/3/2014. On 11/3/2014 the 1st respondent was in Court, the appellant and 2nd respondent were absent. The case was adjourned to 7/4/2014 to enable the 1st respondent serve hearing notices on the appellants and 2nd respondent. On 7/4/2014, the 1st respondent was present, the 2nd appellant and 2nd respondent who were defendants were absent. The 1st respondent appeared in person and opened his case. The case was adjourned to 16/4/2014. The case did not come up in Court until 9/6/2014. On that day, the 1st respondent was present. The appellants and 2nd respondent were absent. The 1st respondent continued with his case and testimony. He tendered some documents which were admitted as exhibits.
The case was adjourned to 30/6/14. The case did not come up in Court until 8/7/2016. The 1st respondent was present. The 2nd appellant and 2nd respondent were absent. The 1st respondent concluded his evidence and called PW2 who also concluded his evidence that day. The case was adjourned to 22/7/14 for adoption of address.
Upon the adoption of address on 22/7/2014, the case was adjourned to 29/10/2014 for judgment. Judgment was not delivered as scheduled on 29/10/2014 and the case did that come up again until 25/3/2015. On that day, the 1st respondent appeared in person. The appellants and 2nd respondent were absent but the 1st appellant and 1st respondent were represented by G.O Nwokeiwu and Josiah Chidozie. The matter was adjourned to 29/4/15 but did not come up again in Court until 4/7/2016. The record of proceedings that day that is 4/7/2016 states that one Adaeze Joy Nwomylony held the brief of A.U.G. Ojinta for 3rd and 4th defendants. There was no 4th defendant in the case. In any case, she moved the motion dated 22/6/2016 and filed on 24/6/16 by which an order was sought to set down the four motions mentioned therein down for hearing. The motion was dismissed for lacking in merit. The learned trial judge then proceeded to read his judgment and granted the reliefs sought by the 1st respondent.
Dissatisfied by the judgment, the appellants filed a notice of appeal on 20/7/2016. Though the judgment is dated 22/6/2016, the record shows that it was delivered on 4/7/2016
I do not know how this confusion or error came about except that the appellants motion which was argued on 4/7/2016 was dated 22/6/2016.
Pursuant to an order of this Court made on 18/3/2017, the appellants filed an amended notice of appeal on 31/3/2017. It contains the following 2 grounds of appeal:
GROUND 1 ERROR OF LAW
That the learned trial judge erred in law and thereby occasioned a miscarriage of justice when he refused to hear and determine the motion on notice contending that the appellants were not served with the originating process, and there was yet another motion on notice before him praying him to set the earlier motion down for hearing and determination, but proceeded to deliver judgment in the matter.
GROUND 2 – ERROR OF LAW
That the learned trial judge erred in law and thereby occasioned a miscarriage of justice when he adjourned the matter for judgment on a day the appellants were not in Court and there was nothing on record to suggest that were aware of that date or took it with the plaintiff/respondent, without ordering that the appellants be served with hearing notice, and went ahead to deliver the judgment,without giving the appellants any opportunity to be heard.
The appellants brief of argument was filed on 27/1/2017. It was settled by Anene Ojinta. The 1st respondents brief was filed on 1/3/2017. It was settled by the 1st respondent himself. The 2nd respondent did not file any brief of argument. Appellants reply brief was filed on 15/3/2017.
The 1st respondent filed a notice of preliminary objection to the hearing of this appeal. It is dated 28/2/2017 and filed on 1/3/2017. It is seeking an order dismissing or striking out the appeal for want of locus standi and jurisdiction to hear and determine the appeal as presently constituted on the grounds that:
1. 2nd appellant/respondent lacks the locus standi to institute this appeal, albeit in a representative capacity, and as such this Honourable Court lacks jurisdiction to entertain the appeal.
2. Being bereft of the standing therefore, 2nd appellant lacks the legal capacity to bring the appeal either unilaterally, or in a representative capacity.
3. 1st and 2nd appellants do not share common interest and common grievance and reliefs claimed or to be claimed cannot be said to be of benefit to them equally.
4. (sic) any representation and as such not acting for on behalf of anybody.
5. There is no dispute, nor direct issue joined between the respondent/plaintiff, and the 2nd appellant/defendant.
6. The 1st appellant/defendant has no Notice of Appeal before this Honourable Court.
7. The appellants are not entitled to the audience of this Honourable Court in view of their non-compliance with a subsisting order of the lower Court, being a condition precedent.
8. Counsel cannot purport to jointly appear for 1st and 2nd appellants.
9. The competence or otherwise of the 2nd appellant/defendant to institute this appeal in the first instance is an issue to be resolved under this preliminary objection.
10. Preliminary objection can be raised at any stage of proceedings, even on appeal.
In his brief of argument filed in support of the objection and attached to the notice of preliminary objection, the 1st respondent formulated the following issues for determination:
1. Whether 2nd appellant/respondent can bring the appeal in a representative capacity, being bereft of the standing to do so; and as a corollary, whether the Court reserves the jurisdiction to entertain the appeal as constituted.
2. Whether there is any appeal by the 1st defendant/appellant/respondent.
3. Whether there is any dispute between, or direct issue joined or to be joined between the respondent/applicant and the 2nd appellant/respondent.
4. Are the appellants entitled to continued audience of this Honourable Court in view of their non compliance with provision.
In their appellants response to the preliminary objection filed on 15/3/2017, the appellants formulated the following issues for determination:
1. Whether there is anything on the Record of Appeal to suggest that the 2nd Appellant/Respondent was acting in a representative capacity (Ground 1,2,5 and 9 of the ground of objection).
2. Whether the 1st Respondent/Objector who had sued the Appellant can be heard to say that the Appellants do not share common interest or have no common grievance to pursue in this appeal (Ground 3 of the grounds of objection).
3. Whether there is no Notice of Appeal before this Court in this Appeal
4. Whether from the record of Appeal it could be said that the Appellants have complied with the provisions of any law that are conditions precedent to filing this appeal that could rob this Court of its jurisdiction to hear appeal (Ground 7 of the grounds of objection).
5. Whether the preliminary objection filed by the 1st Respondent/Objector is not an abuse of judicial process
I have considered the grounds of objection and the issues formulated by both parties. I find issue 1 formulated by the appellants to be apt for the determination of the preliminary objection. That issue is whether there is anything in the record of appeal to suggest that the 2nd appellant is acting in a representative capacity. All other issues and arguments of the 1st respondent revolve around this issue.
The summary of the arguments of the 1st respondent is that 2nd appellant, Mr. Gabriel Oko lacks the legal capacity and is not competent to file an appeal against the 1st respondent. He further submitted that the 2nd appellant lacks the locus standi to assert and enforce any right against the 1st respondent though the 2nd appellant purports or so it seems to act for himself and in a representative capacity for the 1st appellant without any legal authorization. He also submitted that the 2nd appellant cannot file processes on behalf of himself and 1st appellant and any process purportedly filed for the 1st and 2nd appellants jointly cannot be entertained by this Court.
In his response, the appellants counsel submitted that there is nothing on the face of the originating processes that is suggestive of the fact that the 2nd appellant was sued in a representative capacity and he filed this appeal because judgment was entered against him and the 1st appellant. He further submitted that it is incumbent on the 1st respondent to prove that the 2nd appellant filed this appeal in a representative capacity. He argued that it is preposterous for the 1st respondent who sued the appellants at the Court below to claim that the appellants do not share a common interest. It is further submitted that though the 2nd respondent is said to have died, no application has been made to strike out his name from this appeal but the 1st respondent has unilaterally removed the 2nd respondents name from his respondents brief and notice of preliminary objection. He finally submitted that this objection is an abuse of the process of the Court.
RESOLUTION
If there is any other way to describe the 1st respondent’s objection to the hearing of the 2nd appellants appeal other than being ridiculous and frivolous, I would have done so. First, the 1st respondent instituted the suit from which this appeal emanated against 3 defendants including the 2nd appellant as the 3rd defendant and averred as follows in paragraphs 9 and 16 (a) (f):
(9) When the processes from the Magistrate Court were served on the 1st defendant, the 3rd defendant applied and was joined as a co-defendant. He was joined because he, the 3rd defendant, said that the 1st defendant acquired his interest in the property through him (the defendant).
(16) The plaintiff avers that when he did not hear from the community after over two months despite several reminders, he got information from the aforesaid Mr. Anthony Oko (the 2nd defendant) that he has appealed the decision of his people to their Igwe. Regrettably, nothing positive came out of the said appeal for:
i. After we met with the Igwe on invitation and a hearing date fixed, we later got a phone call from Mr. Anthony Oko (the 2nd defendant) informing us of his admission at the Enugu Orthopedic Hospital for injuries inflicted by his brother during a scuffle between them. All that while the judiciary staff in Enugu State had been on an indefinite, protracted strike.
ii. After we had visited Mr. Anthony Oko (the 2nd defendant) in the hospital and as the matter lingered, we had no other option but to seek immediate redress in Court as soon as the strike was called off for even the Igwe, himself a lawyer, had earlier eluded such suggestion.
iii. My predecessor in-title was to inform me of the following:
a. That when he acquired interest in the property he did not experience or witness any interruption until he finished surveying the land, the registration of the survey plan at the Ministry of Land, Survey and Urban Development and even the stamp duty was done. And the beacons were placed accordingly.
b. That at a later time, Mr. Livinus Anike informed him that a brother to the 2nd defendant whose name was said to be Mr. Gabriel Oko i. e. the 3rd defendant uprooted the beacons as a result of a misunderstanding between him (the 3rd defendant) and his brother (the 2nd defendant).
c. That when he went with his brother, Moses Egbo, to the house of the 2nd and 3rd defendants they found out that their problem was in connection with the money realized from the sale of the property.
d. That they further informed (sic) the Gabriel Oko, the 3rd defendant who was resident in the northern part of the country had instructed and authorized his northern, Anthony Oko (the 2nd defendant) who was at home to sale the property in his behalf. But after doing so, he the 2nd defendant converted part of the money realized from the sale of the property.
f. That when the mother of the 2nd and 3rd defendants died he heard of it and he went with his brother Mr. Moses Egbo with a carton of wine for the condolence and they were received very well by Mr. Gabriel Oko (the 3rd defendant) and his brother (the 2nd defendant) Anthony Oko.
He then claimed the reliefs stated earlier in this judgment against the defendants including the 2nd appellant.
The 2nd appellant remained the 3rd defendant on all the processes filed and exchanged by the parties at the Court below and contained in the record of appeal. Judgment was entered against all the defendants. There is nothing on the record before us to suggest even remotely that the 2nd appellant is prosecuting this appeal in a representative capacity. I cannot understand why the 1st respondent who presents himself as a qualified legal practitioner would plead that the 2nd appellant claims that the 1st appellant acquired his interest through him and that he instructed his brother to sell the property on his behalf would argue that the appellants do not share any common interest in this appeal.
Secondly, the 1st respondent is a totally confused being. The crux of the 1st respondents objection is that the 2nd appellant has filed this appeal in a representative capacity simply because the 1st and 2nd appellants filed a joint notice of appeal. Yet, he submitted in paragraph 3:13 of his brief in support of the objection that there is and has never been any indication, indeed no evidence that the 2nd defendant/appellant/respondent- Mr. Gabriel Oko is acting in any representative capacity nor for and on behalf of any party or group. In paragraph 3:15, he stated that for instance on the course of motions and various replies to theirs, we had cause to point out to the learned trial judge the fact that we have neither for one moment seen, let alone known any person that goes by the name Malachy Okolo, whether such a person or name is imaginary, or does really exist, and nobody, none of the defendants/appellants have been able to account for the identity and/ or where about of the Malachy Okolo In paragraph 3:24, he stated that the 2nd appellant/respondent is not a proper party to take us on appeal. There is no dispute between the plaintiff/respondent/applicant and the 2nd appellant/respondent was merely joined as a party based on his demand. Thus, he (2nd appellant) has no locus to directly join issues with us in respect of the disputed land. Besides, there is nothing on record to show that the 2nd appellant/respondent is acting for or on behalf of anybody.
The 1st respondent has no slightest idea of what he talks about. If there is nothing showing that the 2nd appellant is acting or filed the appeal in a representative capacity and in fact there is none, then the submissions of the appellants counsel that this objection is an abuse of the process of the Court is correct. It is an improper use of process of the Court. It is hereby dismissed.
MAIN APPEAL
The appellants formulated the following issues for determination:
i. Whether the learned trial judge was right in proceeding with the matter up to judgment, and refusing to hear and determine a motion on notice pending before him challenging the jurisdiction of the Court on account of none service of the originating processes on the appellants
ii. Whether the appellants were denied fair hearing when the learned trial judge adjourned for judgment in the absence of the appellants, without ordering that they be served with hearing notice, especially as they were not aware of the date on which the matter came up
The 1st respondent formulated the following issues for determination:
1. Whether it is correct to say that the learned trial judge refused to hear and determine appellants pending motion; and as a corollary, whether the appellants are not dwelling in the past.
2. Whether the appellants were denied fair-hearing.
3. Whether a Hearing Notice is served as a matter of course, and on every adjourned date.
I find the issues formulated by the appellants to be more apt for the determination of this appeal. On issue 1, the appellants counsel submitted that the learned trial judge was duty bound to hear and determine the motion on notice contesting service of the originating processes. He argued that though the application to set the pending motions down for hearing was refused, the motion challenging the service of the originating process and other motions are still pending but the Court went ahead and delivered its judgment. He stated that the appellants counsel was never asked to move the motion and never failed or refused to do so or deliberately stayed away from the Court knowing that the case was coming up in Court. He referred to F.M.B.N. V. UWADIALE (2003) LPELR 10883 (CA) AT 45 (D F). UNITY BANK PLC V. ZANGO 912 AT 934 935 (G A) MOBIL PROD (NIG) UNLTD (PT. 195) 575, ABIARA V. REG. T.M.C.N (2007) LPELR 8736 (CA) AT 22 23 (D E).
In response, the 1st respondent submitted that it is not correct to say that the learned trial judge refused to hear and determine any appellants pending motion rather the appellants refused or neglected to face the various issues raised by them. He further submitted that the successive, incessant and consecutive absence of the appellants counsel from Court, the virtual abandonment of their matter, showing up in Court when a date was set for judgment and the obvious detriment caused the 1st respondent prompted him to cry out to the Court to rescue him and it necessitated the steps taken by the learned trial judge to do the needful.
RESOLUTION
I have earlier stated the facts which are germane to the determination of this issue as gleaned from the record of appeal. The application to set the pending motions down for hearing was refused but the motions were not struck out. The legal effect is that the following motions are still pending at the Court below:
a. Motion on Notice dated 30th day of September 2014 and filed by the 1st and 3rd defendants/applicants on the same date.
- Motion for Amendment of the written Address in opposition to the Motion on Notice date 20th day of November 2014 and filed on the same date by the plaintiff.
c. Notice of Preliminary objection dated 23rd day of February 2015 and filed on the same day by the plaintiff/applicant.
d. Motion on Notice dated the 9th day of November 2015 and filed on the same date by the plaintiff/applicant.
It is now a settled law that once a motion is brought to the notice of the Court, the Court is duty bound to hear and determine the motion no matter how regular, frivolous or stupid they may appear especially one challenging the jurisdiction of the Court. The Court has a duty to hear all pending motions before delivery of final judgment in a matter. Failure or refusal to hear a pending motion before judgment is delivered is a denial of fair hearing guaranteed by the Constitution and a breach of the rule of natural justice though it is not in all cases that failure to hear a pending motion before delivery of judgment is fatal to the proceedings. See EMEKA V. OKADIGBO & ORS (2012) LPELR-9338 (SC) AT 44 45.DINGYADI V. INEC (NO.2) (2010) LPELR 952 (SC). IFEANYI OBIOZOR V. NNAMUA (2014) LPELR 23041 (CA). MAGNA MARTIME SERVICE LTD & ORS V. OTEJU & ANOR. (2005) LPELR 1817 (SC) AT 17 (C D).
In the instant case, the motion filed on 30/9/2014 prayed for the following orders:
1. An order of this Honourable Court setting aside aside the Order of substituted service made by this Honourable Court on the 30th day of October, 2013 pursuant to a Motion Ex-parte dated 23rd September, 2013 and filed on 25th September, 2013.
2. An Order (sic) this Honourable Court setting the service of originating processes on the 1st and 3rd defendants/applicants effected pursuant to the said order referred to in relief 1 above.
3. An Order of this Honourable Court setting aside all proceedings in this suit for want of jurisdiction, the originating processes having not been properly served on the 1st and 3rd defendants.
4. A Declaration that this Honourable Court lacks the jurisdiction to take any further steps in this suit pending the proper service of originating processes on the 1st and 3rd defendants.
- And for such other or further order(s) as the Honourable Court may deem fit to make in the circumstances.
It is trite law that proper service of the originating processes on a party to the proceedings is a condition precedent to the exercise of the Courts jurisdiction. Where there is no proper service of the originating process, the Courts jurisdiction is not activated. Therefore where there is a pending motion challenging service of the Court process, the motion must be heard and a ruling delivered before the Court can proceed further in the matter. The Court cannot ignore or refuse or neglect to hear a motion challenging its jurisdiction to hear the substantive case and proceed to deliver its judgment. In the instant case, the learned trial judge embarked on a fruitless exercise when he heard the case and delivered judgment when the motion challenging the service of the originating processes on the appellants and in essence its jurisdiction was still pending. For the above reasons issue 1 is resolved in favour of the appellant.
Issue 2 is whether the appellants were denied fair hearing when the learned trial judge adjourned for judgment in the absence of the appellants, without ordering that they be served with hearing notice, especially as they were not aware of the date on which the matter came up. On this issue, the appellants counsel argued that since the last time the matter came up on record was 25/3/2015 and there was a strike action of the judicial staff union from 7/4/2015 to 10/7/2015 and other intervening or disrupting events following, the learned trial judge should have ordered that the appellants be notified of the next date of adjournment which was not done. He referred to ONYENOBI V. AMADI & ORS (2013) LPELR 22041 (CA) AT 41 (A). BADA & ANOR V. ATUNBI & ANOR (2011) LPELR 9265 (CA) AT 11 12 (F A). He further submitted that no hearing notice was ever ordered to be served and none was served on the appellants. He argued that fair hearing demands that a counsel having appeared in the matter, the Court should have ordered that hearing notice be served on the appellants before adjourning for judgment even if no application was made for an order that hearing notice be issued and served . He submitted that failure to serve hearing notice where one is required renders the entire proceedings and decision of the trial Court a nullity. He referred to HARUNA & ANOR V. LADEINDE & ORS (1987) LPELR 20631 (CA) 27 28 (F A).
In response, the 1st respondent submitted that hearing notices are not served as a matter of course or on every adjourned date as being insinuated by the appellants counsel. On when it is necessary to serve hearing notices, he referred to NNANAH V. USORO (2013) LPELR 20822. He submitted that the appellants counsel was in Court on 18/2/2016 the day the Court resumed after the national assignment having served on an election petition tribunal and counsel personally took a mutually agreed date of 6/4/2016. On that date, counsel was absent in Court without an explanation and his absence continued only to surface whenever a date is fixed for judgment. On 22/6/2016 when judgment was to be delivered, counsel was in Court but the Court did not sit. On 4/7/2016, counsel sent a junior counsel with a motion to play the spoiler when no hearing notice was served in respect of any of those two dates. Counsel submitted that the appellants have a duty to prove a denial of fair hearing which they failed to do.
In his reply, the appellants counsel submitted that it is clear from the record of proceedings on pages 172 to 183 of the record of appeal that the Court did not sit on 18/2/2016 and 6/4/2016 and apart from 25/3/2016 when the Court sat after the motion dated 30/9/2014 was filed, the only other date the Court sat was 4/7/2016. He contended that hearing notice ought to have been served on the appellants. He referred to ONYENOBI V. AMADI & ORS (SUPRA). He urged the Court to discountenance the arguments of the 1st respondent.
RESOLUTION
The law is settled that service of a Court process and hearing notice where the law requires service on the parties to the proceedings is mandatory for proper activation of the Courts power to exercise its jurisdiction to adjudicate on a matter brought before it. The purpose of service of hearing notice is to notify the parties of the pendency and date fixed for the case in Court. It is trite law that failure to issue and serve hearing notice on a party where one is required renders the proceedings conducted in his absence a nullity and liable to be set aside. See APEH & ORS V. PDP & ORS (2016) LPELR 40726 (SC) AT 22 23 (D E). ACHUZIA V. OGBOMAH (2016) LPELR 40050 (SC) AT 29 (B D), DAHUWA V. ADENIRAN (2003) 17 NWLR (PT. 849) 376; LPELR 10368 (CA) AT 9 (D F). In the instant case, I have perused every page of the record of appeal and the supplementary record compiled by the 1st respondent. I cannot find a single proof of service of hearing notice on the appellants and particularly for 7/4/2014, 9/6/2014 stated to be 9/6/2016 on page 178 of the record, 30/6/2014 and 22/7/2014 on which dates the case was heard and adjourned for judgment. On 11/3/2014, the appellants were absent in Court. The case was adjourned to 7/4/2014. The Court stated that The plaintiff is given another chance of serving the defendant with a hearing notice. That pronouncement in itself is a confirmation that hearing notices were being not been served on the appellants and that none was served on them for that day. When the case came up on 7/4/2014, there is no indication whatsoever that the order of the Court made on 11/3/14 was complied with. It is the duty of the Court to ascertain and satisfy itself that its order for issuance and service of hearing notices on the appellants who were absent in Court on the previous dates was complied with. There is no indication that the learned trial judge performed that duty. Where the Court fails to satisfy itself of the proper service of hearing notice on a party who was absent in Court and proceeds with the hearing of the case, the proceedings of that day is nullity and liable to be set aside. If the Court is not satisfied with the service of the originating process and hearing notice, the matter must be adjourned. The Court has no discretion in the matter. See ALHAJI YUSUF DAN HAUSA & CO. LTD V. PANATRADE LTD. (1993) LPELR 420 (SC) AT 17 (C D). THE CHIEF OF NAVAL STATE V. LT. CDR. EDEH (2015) LPELR 24581 (CA) AT 35 (B E). Not only did the Court fail to satisfy itself of service of hearing notices on the appellants on 7/4/2014 before proceeding with the hearing of the case, at the end of proceedings that day, the Court did not make an order for issuance and service of hearing notices on the appellants to notify them of the adjournment to 16/4/2014. There is no indication that the Court sat on 16/4/2014. The case came up again on 9/6/2014. The same scenario as 7/4/2014 happened. No indication that hearing notices were served on the appellants and no indication that the Court was satisfied with any service of hearing notice on any of the appellants who were absent in Court. Yet the Court continued with the hearing of the case. PW1 continued his evidence and the case was adjourned to 30/6/2014. The case did not come up until 8/7/2014. Again the appellant were absent and again no indication of service of hearing notices on them. PW2 concluded his evidence and called PW2 who also testified and concluded his evidence that day. The only conclusion this Court can reach from the record of appeal is that the appellants were not notified and were not aware that the matter was being heard on each day of 7/4/2014, 9/6/2014, 8/7/2014, and 22/7/2014 when the 1st respondent testified and called his witness.
Section 36(1) of the Constitution of the Federal Republic of Nigeria (as amended) provides that:
In the determination of civil rights and obligations, 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 manner as to secure its independence and impartially.
The first requirement of fair hearing is that both parties in a matter must be afforded equal opportunity of been heard. Hearing of a matter cannot be said to be fair if any of the parties in the matter is denied the opportunity of being heard. A denial of fair hearing is a breach of natural justice as no man is to be condemned without being heard. A breach of the Constitutional right of fair hearing renders the proceedings and judgment entered a nullity. See A.G. RIVERS STATE V. UDE (2006) LPELR 626 (SC) AT 20 (B G). OGLI OKO MEMORIAL FARMS LTD & ANOR N.A.C.B. LTD. (2008) LPELR 2306 (SC) AT 25 26 (E A). OGUNDOYIN V. ADEYEMI (2001) 13 NWLR (PT. 730) 403. (2001) LPELR 2335 (SC) AT 17 18 (E C). MBANEFO V. MOLOKWU & ORS (2014) LPELR 22257 (SC) AT 47 (B D).
It seems to me that the Court was frustrated with the persistent absence of the appellants. On 4/7/2016 when the application to set down the other pending motions down for hearing was refused, the Court stated at pages 182 183 of the record of appeal that I have listened to the applicants and the reply. I have duly considered the application. It is my opinion that the applicants have merely tested the patience of the Court. The defendants have never appeared in this case since 2013. The defendants counsel do not appear except he comes and disappears. This case is for judgment and has to be delivered. There is no evidence on record to show that the appellants had notice of the various dates of adjournment particularly the dates on which the 1st respondent and his witnesses testified but deliberately stayed away from Court. See PAM V. ANPP & ORS (2007) LPELR 9000 (CA) AT 26 (G G). AIYEDUN V. REGISTRAR, UPPER AREA COURT, ILORIN & ORS (2016) LPELR 41186 (CA) AT 28 (A B). The only way to deal with a party who is persistently absent from the Court is to ensure that hearing notices are properly served on the party and affidavit of service is properly filed and record of same is properly kept by the Court. See The law is settled that an appellate Court is bound by the record of appeal and so also the parties unless it is successfully challenged by any of the parties. See ONWUKA V. ONONUJU & ORS. (2009) LPELR 2721 (SC) AT 28 (E F). An appellate Court cannot go outside the record of proceedings to engage in speculation and read into the record what is not there. See OGUNTAYO V. ADELAJA (2009) LPELR 2353 (SC) AT 49 50 (G D). I cannot find anything on the record to justify the frustration of the learned trial judge and to justify the hearing of the case without being satisfied with service of hearing notices on the appellants.
With due respect to the learned trial judge, it seems to me that his lordship did not fully appreciate the importance of service of hearing notice in the circumstances of this case and the need to reflect same on the record. When a party is absent in Court and the Court is satisfied that he has notice that the matter was coming up in Court that day, it is mandatory for the Court to state so clearly on record and the basis for that satisfaction. The entire record of appeal is blank and silent on service of hearing notices on the appellant. From the record before this Court, the appellants were denied their right of fair hearing having not been afforded the opportunity to present their own case before the Court rendered its decision.
The hearing of the matter in their absence and the judgment delivered on 4/7/2016 are nullities. The appeal succeeds. The judgment of the High Court of Enugu state delivered in suit no. CA/E/170/2013 on 4/7/2016 is hereby set aside. The case is hereby remitted to the High Court for hearing of the pending applications and trial of the case de novo before another judge.
Parties shall bear their own costs.
IGNATIUS IGWE AGUBE, J.C.A.: I agree
JOSEPH TINE TUR, J.C.A.: I agree
Appearances:
Anene Ojinta with him, Emeka Anosike For Appellant(s)
Respondent appears in person.For Respondent(s)
Appearances
Anene Ojinta with him, Emeka AnosikeFor Appellant
AND
Respondent appears in person.For Respondent
