THE REGISTERED TRUSTEES OF REVIVAL FAITH INTERNATIONAL MINISTRIES v. BARRISTER BERNADETTE UYOH-OBOT
(2019)LCN/12840(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2019
CA/C/13/2011
RATIO
INTERPRETATION: MEANING OF FAIR HEARING AND FAIR TRIAL
“Fair hearing, in essence, means giving equal opportunity to the parties to be heard in the litigation before the Court. It was defined in MOHAMMED VS. KANO N.A (1968) ALL NLR 411 AT 413 (Reprint) by Ademola C.J.N. and considering the meaning of fair hearing said: It has been suggested that a fair hearing does not mean a fair trial. We think that a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of fair hearing, it was suggested by counsel, is the impression of a reasonable person who was present at the trial whether from his observation; justice has been done in the case.’ Also see the case of ARIORI & ORS. VS. ELEMO & ORS. (1983) LPELR-552 (SC) which described it thus: ‘Fair hearing, therefore, must mean a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause.’ The right to fair hearing is sacrosanct and cannot therefore be lightly disregarded or discarded by the Court. It is one of the pillars on which the concept of justice and fairness is built. It is what enjoins a Court or tribunal to hear both sides.” PER YARGATA BYENCHIT NIMPAR J.C.A.
SERVICE: THE IMPORTANCE OF SERVING A NOTICE
“The apex Court in the case of LEEDO PRESIDENTIAL MOTEL LTD. VS. BANK OF THE NORTH (1998) LPELR-1775 (SC) restated the fundamental nature of the service of a hearing notice on parties in the adjudication process and the effect of failure to serve same where required thus: Where a party is entitled to notice of a proceeding and there is failure to serve him, the failure is a fundamental defect which goes to the root of the competence (or jurisdiction) of the Court to deal with the matter. See: SKENCONSULT (NIG.) LTD. & ANOR. VS. UKEY (1981) 1 SC.6, 27” PER YARGATA BYENCHIT NIMPAR J.C.A.
JUSTICE
MOJEED ADEKUNLE OWOADE justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR justice of The Court of Appeal of Nigeria
Between
THE REGISTERED TRUSTEES OF REVIVAL FAITH INTERNATIONAL MINISTRIES – Appellant(s)
AND
BARRISTER BERNADETTE UYOH-OBOT – Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Akwa Ibom High Court sitting at Ikot Ekpene, coram: Hon. justice Enefiok Udoh and delivered on the 21st day of July, 2008 wherein judgment was entered in favour of the Respondent and against the Appellant in default of defence. Dissatisfied with the said decision, the Appellant filed a Notice of appeal on the 24th day of July, 2008 setting out four (4) grounds of Appeal.
Facts surrounding the appeal are clear and straight forward, it was simply a case of trespass to land alleged against the Appellant. The Respondent took out a writ of summons against the Appellant wherein he claimed the following reliefs:
i. A sum of N1,000,000.00 (One Million Naira) only being general damages for trespass in that sometimes in the Month of February, 2002, the Defendants without leave or licence of the Plaintiff wrongfully broke into and entered, upon the Plaintiffs land lying and situate at NO. 14 Okop Eto Road, Ikot Ekpene and cleared same heaped some trips of fine sand preparatory to erecting a permanent building thereon and which land was in the Plaintiffs exclusive possession.
ii. Perpetual injunction retraining the defendant/ Appellant and each of them, their servants, privies, agents and others howsoever from further entry or acts of trespass on the Plaintiffs said land.
Parties joined issues and the matter went to trial, by some events the appellant was foreclosed and was not allowed to put in its defence. The Court below still went on to consider the claim and judgment was entered against the Appellant thus this appeal.
The Appellants Brief of Argument settled by ESSIEN OBONG ESQ., is dated 13th day of July, 2017 filed on the 14th day of July, 2017 and deemed on the 26th day of September, 2018. It distilled 3 issues for determination as follows:
a. Whether the Respondent showed positive and numerous acts of ownership and possession to warrant the consideration of relief for damages, trespass and declaration of title in her favour by the learned trial judge.
b. Whether the right of fair hearing of the Appellant was not breached when the learned trial judge refused to grant leave to the Appellant to Cross examine the Respondent and also to open her defence before judgment was delivered.
c. The learned trial judge wrongly placed the weight of evidence in favour of the Respondent, when the evidence before him could not support same having not considered the evidence of the Appellant.
The Respondents Brief settled by ESSIEN UBONG S. ESSIEN, ESQ., is dated 8th day of November, 2018 filed on the 19th day of November, 2018 but deemed on the 22nd day of November, 2018. He formulated 3 issues namely:
i. Whether the Appellants who did not raise the issue of the capacity of the plaintiff/ Respondent to sue at the trial Court could be allowed to do so on Appeal.
ii. Whether the Applications of the rule of fair hearing is without qualifications.
iii. Whether the Appellants who did not lead any evidence at the trial Court can challenge the weight of evidence.
I have considered the Notice of Appeal, the Record of Appeal and the issues formulated for determination by both sides in their respective briefs and I am of the respectful view that the issues settled by the Appellant shall determine the appeal effectively and I therefore adopt them for resolution in this appeal. However, I shall start from the second issue which raises a question as to whether fair hearing rule was not breached. Being a fundamental question, resolution must start from there.
ISSUE TWO:
Whether the right of fair hearing of the Appellant was not breached when the learned trial judge refused to grant leave to the Appellant to Cross examine the Respondent and also to open her defence before judgment was delivered.
The Appellant in arguing issue two submitted that the trial Court refused to give the Appellant an opportunity to cross examine the Respondent after counsel for the Appellant was not in Court on the 17th day of April, 2008 but wrote asking for adjournment with suggested dates but none was convenient to the Court and the Court adjourned the matter to 19th day of June, 2008 for continuation of hearing. Appellant contended that in the absence of the Appellant on the 17th day of April, 2008, the Appellant had no knowledge of subsequent dates since no hearing Notice was issued by the Court before proceeding with the trial and that it amounts to breach of fair hearing. He argued that the record does not show them the trial judge directed that the Appellant be served with a hearing Notice. He argued that failure to serve hearing notice offends Section 36 of the 1999 Constitution as Amended and relied on MPAMA VS. FIRST BANK OF NIGERIA PLC (2013) ALL FWLT (PT. 674) 129.
Another feature is the outright dismissal of the motion filed by the Appellant seeking leave to cross examine the Respondent with cost, the Court below held that the motion was incompetent. Appellant observed that the Respondent did not join issues with the Appellant on the motion since he did not file a counter affidavit but merely made an oral submission. He argued that since the facts in support of the motion were not denied, they stand admitted and therefore the trial judge erred in not hearing and granting the motion. Appellant submitted further that the merit of the motion was not even considered because the trial judge was bent on using technicalities to defeat the ends of justice, citing SURAKATU VS. NHDS (1981) 4 SC 20 and AJUWA VS. SPDC (NIG.) LTD. (2010) ALL FWLR (PT. 536) 437.
The Appellant observed that the Registry of the Court below inserted a wrong miscellaneous number on the motion paper, the basis on which the Court below found that the motion was incompetent. Arguing the Appellant submitted that it is not the duty of the Appellant to insert numbers and in this case the registry made the error which should not have been visited on the Appellant, relying on the G.T.M. ENT. LTD. VS. C. R. & INV. LTD. (2012) ALL FWLR (PT. 655) 399. On failure to allow the Appellant to cross examine the Respondent, appellant relied on SOLEYE VS. SHONIBARE (2002) FWLR (PT. 95) 221 and CHIORLU VS. AKANI (2001) FWLR (PT. 71) 1781 to submit that a party who has shown interest in defending a claim against him should be allowed to do so since the Appellant had shown such seriousness. He urged the Court to resolve this issue in favour of the Appellant.
The Respondent on this issue submitted that the application of fair hearing Rule is not without qualification which is that every party to a case must be given an opportunity of being heard, citing ADEDEJI VS. POLICE SERVICE COMMISSION (1967) 1 ALL NLR 67. Submitting further, the Respondent argued that oral hearing need not be granted.
The respondent submitted that the Appellant was represented in Court by a representative of the Appellant (an elder of the church) and a counsel on the 12th February 2008 and that was when the Respondents witness was to be cross examined. Furthermore, that the Appellant applied for adjournment which means the Appellant was aware of the next adjourned date but abstained from Court. When the trial Court foreclosed the Appellant. He further submitted that the Appellant did not apply to set aside the order until the motion filed on the 7th day of July, 2008 which was wrongly brought in the suit with a wrong miscellaneous number and it was consequently dismissed. The Respondent submitted that an opportunity was therefore given to the Appellant and urged the Court to resolve the issue in favour of the Respondent.
RESOLUTION
The main grouse here is the refusal to allow the Appellant cross-examine the Respondents witness, failure to serve hearing notices and alleged breach of fair hearing along the consequences of it. Fair hearing and its features have received judicial pronouncement in a plethora of cases. Fair hearing, in essence, means giving equal opportunity to the parties to be heard in the litigation before the Court. It was defined in MOHAMMED VS. KANO N.A (1968) ALL NLR 411 AT 413 (Reprint) by Ademola C.J.N. and considering the meaning of fair hearing said:
It has been suggested that a fair hearing does not mean a fair trial. We think that a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of fair hearing, it was suggested by counsel, is the impression of a reasonable person who was present at the trial whether from his observation; justice has been done in the case.”
Also see the case of ARIORI & ORS. VS. ELEMO & ORS. (1983) LPELR-552 (SC) which described it thus:
“Fair hearing, therefore, must mean a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause.”
The right to fair hearing is sacrosanct and cannot therefore be lightly disregarded or discarded by the Court. It is one of the pillars on which the concept of justice and fairness is built. It is what enjoins a Court or tribunal to hear both sides.
The principle is sacrosanct to any determination of the rights and obligations of the citizens in the Courts or before administrative tribunals. The right to fair hearing is constitutionally guaranteed under Section 36 (1) of the Constitution of Nigeria 1999 (as amended). Thus, whenever there is breach, it attracts consequences. A breach of the right to fair hearing renders the proceedings in which it was committed as well all subsequent proceedings and any resultant decision therein a nullity, notwithstanding how meticulous the proceeding would have been or how sound the resultant decision would have been on the merit. They are all a nullity. See EKPENETU VS. OFEGOBI (2012) 15 NWLR (PT. 1323) 276; AMADI VS. INEC (2013) 4 NWLR (PT. 1345) 595; OVUNWO & ANOR. VS. WOKO & ORS. (2011) 17 NWLR (PT. 1277) 522; PAN AFRICAN INCORPORATION & ORS. VS. SHORELINE LIFEBOAT LTD. & ANOR. (2010) ALL FWLR (PT. 524) 56; ACTION CONGRESS OF NIGERIA VS. SULE LAMIDO & ORS. (2012) 8 NWLR (PT. 1303) 560 @ P. 593; JUDICIAL SERVICE COMMISSION OF CROSS RIVER STATE & ANOR. VS. DR. (MRS.) ASARI YOUNG (2013) 11 NWLR (PT. 1364) 1.
However, it is the law that an allegation of denial of the right to fair hearing, as grave as it could be and the dire consequences it could have on the proceedings and judgment of a Court if proved, is dependent on the facts and circumstances of each given case. In other words, whether the right to fair hearing was breached or not is a question of facts to be determined squarely on the facts and circumstances placed before the Court. This is so because fair hearing is primarily a matter of fact. It is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constituted a breach of the party’s right to fair hearing. See NEWSWATCH COMMUNICATIONS LIMITED VS. ALHAJI IBRAHIM ATTA (2006) 12 NWLR (PT. 993) 144. The right to fair hearing of any citizen in the determination of their civil rights and obligations by Courts and Tribunals and even quasi judicial bodies is to ensure that decisions are not reached without a hearing of the citizen and that is fundamental. See CEEKAY TRADERS LTD. VS. GENERAL MOTORS LTD. (1993) 2 NWLR (PT. 222) 132.
The facts summarized earlier in this judgment are straight forward, the matter came up on the 17th day of April 2008 when the Appellant wrote for adjournment and the suit was adjourned. On the next adjourned date being the 19th day of June, 2008, the Court below foreclosed the Appellant from cross examining the Respondents witness and adjourned to 16th day of June, 2008 for defence and on that date the Appellant and counsel were again absent and the defence was foreclosed and matter adjourned to 20th day of June, 2008 for address. The Respondent on the said date addressed the Court. The Court below then adjourned the matter to 21st day of July, 2008 for judgment which was delivered, judgment entered for the Respondent. In all that no hearing notice was ordered to be issued and served on the Appellant.
The Appellant was absent on the 19th June, 2008, expectedly the Court should have made an order that the Appellant be served with a hearing Notice and the order fixing the matter for defence since he was not in Court. This was not done and henceforth no hearing notice was served, even when the matter came up for address and judgment. Without any mincing of words, there was a breach of fair hearing.
Meanwhile, the Appellant filed a motion on the 7th day of July, 2008 praying the Court for the following:
a. Granting the Applicant leave to cross examine the plaintiff in his suit and open her defence before judgment is delivered.
b. And for such further order(s) as this Honourable Court may deem fit to make in the circumstances of this case.
The trial judge fixed the motion for hearing on the 14th day of July, 2008 when the Respondents counsel objected to the hearing of the motion on the ground that it was incompetent. The Court below considered the opposition and ruled as follows:
I had already adjourned Suit No. HT/10/2002 for judgment. To this extent, this motion is incompetent and I dismiss it with N1,500.00 (One thousand Five Hundred Naira) to the Respondent.
The Respondent submitted that the motion was dismissed because of a wrong miscellaneous number while the record says the motion was dismissed because the matter had been fixed for judgment. There is no rule of Court that the Court below relied upon to arrive at such a finding. Having foreclosed the Appellants defence the trial judge should have exercised discretion in allowing the Appellant to come in and defend the matter, more so it was not served with any hearing notice to address the Court. The trial judge because of a registry error refused to take the motion seeking leave for the Appellant to cross examine the Respondents witness and put up a defence to the claim. That to my respectful view is not a judicious exercise of discretion. At that stage, the Respondent could be compensated by cost, more so when there was a fundamental defect in the trial Courts failure to serve the Appellant with a hearing notice. There is no way a bystander can confidently say justice was done in this case at the Court below.
I had earlier in this judgment emphasized on the importance of fair hearing and the effect of failure to give parties before the Court a hearing before determining the claim within which they are parties. In doing so, the trial judge has a duty to ensure parties were duly served and the proof of such service of hearing notice before the Court. The Court must always have record of such service before taking any step in the matter, this underscores the importance of fair hearing in any adjudication, see ESSIEN VS. EDET (2004) 5 NWLR (PT. 867) 445 and NPA VS. EYAMBA & ORS. (2014) LPELR-22726 (CA) which held thus:
Therefore, in my respectful view, to proceed with the matter without ascertaining whether or not the hearing Notice ordered by the Court had been served, is tantamount to depriving the affected party of an opportunity to be heard, in breach of Rules governing fair hearing. This being because if the Appellant is not put on Notice of the fact that the matter was coming upon a particular date, their right to fair hearing has been breached. In SPDC VS. ESOWE (2007) LPELR-8670, this Court per Gumel JCA said: The service of a hearing notice is more than just a procedural step in the adjudication of a matter. It is more serious than that. It is a substantive issue as it goes to jurisdiction and competence of the Court to go ahead with the matter.
The apex Court in the case of LEEDO PRESIDENTIAL MOTEL LTD. VS. BANK OF THE NORTH (1998) LPELR-1775 (SC) restated the fundamental nature of the service of a hearing notice on parties in the adjudication process and the effect of failure to serve same where required thus:
Where a party is entitled to notice of a proceeding and there is failure to serve him, the failure is a fundamental defect which goes to the root of the competence (or jurisdiction) of the Court to deal with the matter. See: SKENCONSULT (NIG.) LTD. & ANOR. VS. UKEY (1981) 1 SC.6, 27 where the dictum of Lord Greene, M.R. in CRAIG VS. KANSEEN (1943) KB 256 AT PP. 262263; (1943) 1 ALL ER 108, 113 was cited with approval, Lord Greene has said: “The question we have to deal with is whether the admitted failure to serve the summons upon which the order in this case was based was a mere irregularity, or whether it was something worse, which would give the defendant the right to have the order set aside. In my opinion, it is beyond question that failure to serve process where service of process is required is a failure which goes to the root of our conceptions of the proper procedure in litigation. Apart from proper ex parte proceedings, the idea that an order can validity be made against a man who has had no notification of any intention to apply for it is one which has never been adopted in England.
To say that an order of that kind is to be treated as a mere irregularity, and not something which is affected by a fundamental vice, is an argument which, in my opinion, cannot be sustained.” As Nnamani, JSC rightly pointed out in SKENCONSULT, (supra), the above is also the attitude of Nigerian Courts on the issue of proper procedure. The learned justice of the Supreme Court, said at p. 26 of the report: “The service of process on the defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or any counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. This very well accords with the principles of natural justice.”
I need not say more. From above, I find this to be a clear case of breach of the right to fair hearing. See TUNBI VS. OPAWOLE (2000) 2 NWLR (PT. 644) 275 @ P. 288. See also OGUNYADE VS. OSHUNKEYE (2007) 15 NWLR (PT. 1057) 218; GTB PLC. VS. SOLOMON (2016) LPELR-40342 (CA). In law, the principles of fair hearing are not only fundamental to adjudication but are also constitutional requirements which cannot be legally glossed over. See AGBAPUONWU VS. AGBAPUONWU (1991) 1 NWLR (PT. 165) 33 @ P. 40. See also AGBOGU VS. ADICHE (supra) @ P. 531; J.O.E. CO. LTD. VS. SKYE BANK PLC (2009) 6 NWLR (PT. 1138) @ P. 518; ROBERT C. OKAFOR & ORS. VS. A.G. & COMMISSIONER FOR JUSTICE, ANAMBRA STATE (1991) 6 NWLR (PT. 200) 659.
There can be no doubt that fair hearing is in most cases synonymous with fair trial and natural justice and once a denial of fair hearing as guaranteed under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended is established, the whole proceedings automatically becomes vitiated. A denial of fair hearing can arise from the conduct of the Court or Tribunal in the hearing of a case. The true test of fair hearing as held in a plethora of cases therefore is the impression of a reasonable person who was present at the trial whether from the observation justice has been done in the case. See OTAPO VS. SUNMONU (1987) 2 NWLR (PT. 58) 587; WILSON VS. A.G. OF BENDEL STATE (1985) 1 NWLR (PT. 4) 572. See also A. U. AMADI VS. THOMAS APLIN & CO. LTD. (1972) ALL NLR 413; MOHAMMED OLADAPO OJENGBEDE VS. M. O. ESAN & ANOR. (2001) 18 NWLR (PT. 746) 771.
The right to fair hearing is not a cosmetic right but a fundamental one. A breach of the right of fair hearing nullifies the entire proceedings because then, the Court was divested of jurisdiction and there cannot be any binding outcome from such a flawed process. The judgment in this case is a nullity and is hereby set aside for failure to afford the Appellant its right to fair hearing by the Court below failing to serve it with a hearing notice for proceedings from 16th June, 2008 up to the date of judgment.
The appeal on this issue alone succeeds and because it is a jurisdictional issue, the Court cannot proceed to resolve other issues for want of jurisdiction, see the case of IKECHUKWU VS. FRN (2015) NWLR (PT. 1457) 1 at 21 where Nweze, JSC stated thus:
It cannot be gainsaid that, as a general rule, an intermediate Court like the lower Court (Court of Appeal) has a duty to pronounce on all issues before it…
However, there are exception to the above rule that applies to the lower Court, as an intermediate Court. thus, for example, where the said Court, decided that it lacks jurisdiction in a matter before it, it, then becomes unnecessary to consider other issues once it has taken a decision on the question of jurisdiction.”
See also BRAITHWAITE VS. SKYE BANK PLC (2013) 5 NWLR (PT. 1346) 1 and ONI VS. CADBURY NIG. PLC (2016) 9 NWLR (PT. 1516)
Consequently, the appeal succeeds. The judgment of the trial Court delivered on the 21st day of July, 2008 is a nullity and is hereby set aside.
Cost of N50,000 in favour of the Appellant.
MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Yargata Byenchit Nimpar, JCA. I agree with my learned brother that there was a breach of the observance of fair hearing by the Court below. I also allow the appeal
I abide with the consequential order and the order as to costs.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to read, in draft, the erudite leading judgment delivered by my learned brother: Yargata Byenchit Nimpar, JCA. I am in full agreement with the reasoning and conclusion of it. I have nothing useful to add to the well-articulated judgment.
I, too, allow the appeal and abide by the consequential orders decreed in the leading judgment.
Appearances:
For Appellant(s)
E.S. Essien, Esq. with him, J. I. Ekong, Esq.For Respondent(s)
