AGBO v. JOMEC & SONS TRADING CO. (NIG) LTD
(2022)LCN/16082(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, January 26, 2022
CA/A/382/2018
Before Our Lordships:
Moore Aseimo Abraham Adumein Justice of the Court of Appeal
Uchechukwu Onyemenam Justice of the Court of Appeal
Mohammed Mustapha Justice of the Court of Appeal
Between
MR. IFEANYICHUKWU AGBO APPELANT(S)
And
JOMEC & SONS TRADING COMPANY NIGERIA LIMITED RESPONDENT(S)
RATIO
THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING
The concept of fair hearing requires or envisages that the contending parties to a case should be given opportunities, by the Court, to present their respective cases without let or hindrance from the beginning to the end. See Ekpeto v. Wanogho (2004) 18 NWLR (Pt. 905) 394. It also requires the Court or Tribunal to be fair and impartial, without showing any bias against or in favour of any of the parties before it. See Newswatch Communications Limited v. Alhaji Aliyu Ibrahim Atta (2006) 12 NWLR (Pt. 993) 144.
The law is that fair hearing lies in the procedure adopted in the determination of a case and not in the correctness of the Court’s decision. See U.B.A. Ltd v. Achoru (1990) 6 NWLR (Pt. 156) 254 and State v. Dr. Olu Onagoruwa (1992) 2 NWLR (Pt. 221) 33 at 56.
It is an indispensable requirement in the administration of justice that a Court or Tribunal must be fair and just, and should hear both sides of a case by giving the parties ample opportunity to present their respective evidence and perspectives of the case. See U.B.N Ltd. v. Nwaokolo (1995) 6 NWLR (Pt. 400) 127; Olumesan v. Ogundepo (1996) 2 NWLR (Pt. 433) 628; Ekiyor v. Bomor (1997) 9 NWLR (Pt. 519) 1 and Simon Ezechukwu v. I. O. C. Onwuka (2006) 2 NWLR (Pt. 963) 151.
The legal implication of denial of a party’s right to fair hearing is that the Court is in breach of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the rules of natural justice and its own rules. See Alhaji Chief Yekini Otapo v. Chief R. O. Sunmonu & Ors (1987) 2 NWLR (Pt. 587) and State v. Dr. Olu Onagoruwa (supra).
The consequence is that a decision reached by a Court or Tribunal in breach of a party’s right to fair hearing cannot be regarded as valid. See Deduwa v. Okorodudu (1976) 9-10 SC 329 and State v. Dr. Olu Onagoruwa (supra). PER ADUMEIN, J.C.A.
WHETHER OR NOT AN INDOLENT PARTY CAN BE AIDED BY THE COURT
The law is that an indolent party cannot be aided by the Court, when he complains of lack of fair hearing. See Vincent Ugo & 3 Ors v. Diokpa Ummuna & 4 Ors (2018) 2 NWLR (Pt. 1602) 102 at 131 per Musa Dattijo Muhammad, JSC.
It also been held that where a party indulges in delays, he cannot validly complain of denial of his right to fair hearing. See Muhammadu v. Kano Native Authority (1968) 1 All NLR 424; Okoduwa v. State (1988) 2 NWLR (Pt. 76) 333; Kotoye v. C.B.N. (1989) 1 NWLR (Pt. 98) 419; Savannah Bank Nigeria Plc v. Motor Parts Installation Enterprises Limited (1997) 3 NWLR (Pt. 492) 209; Otu v. Udonwa (2000) 13 NWLR (Pt. 683) 157 and Simon Ezechukwu v. I.O.C. Onwuka (2006) 2 NWLR (Pt. 963) 151. PER ADUMEIN, J.C.A.
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The respondent was the claimant in Suit No. NSHC/SD/64/2017 which it instituted against the appellant, then defendant, in the High Court of Niger State holden at Suleja. In the said suit, the respondent sought, against the appellant, the following relief:
“(1) The sum of Seven Million, Eight Hundred and Three Thousand, One Hundred Naira (N7,803,100.00) being the total sum of money owed the Plaintiff by the Defendant for goods bought between 20/10/2015 to 6/6/2015(sic)
(2) Ten percent interest on the said sum of N7,803,100.00 from date of judgment till the entire debt is liquidated.
(3) The sum of Five Hundred Thousand Naira (N500,000.00) being the cost of filing and furtherance of this action. “
The respondent’s writ of summons and statement of claim in the said suit was accompanied by a motion on notice in which the respondent, as the applicant therein, sought the following relief:
“(1) AN ORDER for summary judgment in the sum of Seven Million, Eight Hundred and Three Thousand, One Hundred Naira (N7,803,100.00) against the Defendant/Respondent which sum the Defendant/Respondent owes the Plaintiff/Applicant and which he refused to pay despite repeated demands.
(2) Ten percent interest on the said sum of N7,803,100.00 from date of judgment till the entire debt is liquidated.
(3) The sum of Five Hundred Thousand Naira (N500,000.00) being the cost of filing and furtherance of this action. “
The record of appeal shows that the respondent filed its originating processes and its motion on notice for summary judgment on 17/07/2017.
On 26/10/2017, the respondent’s motion on notice for summary judgment was moved by its learned Counsel – B. O. Aghaegbuna, Esq., and the trial Court reserved its ruling to be delivered on 29/01/2018. On the said 29th day of January, 2018, the trial Court rendered its ruling whereby it entered summary judgment in favour of the respondent and against the appellant. This appeal is against the said decision of the trial Court.
The appeal was heard on the amended notice of appeal filed on 20/05/2019 but deemed as filed on 29/06/2021; the appellant’s brief filed on 16/02/2021; and the respondent’s brief filed on 30/09/2021 and deemed as properly filed on the said date.
The learned counsel for the appellant raised the following lone issue for determination:
“Whether the Appellant was denied the right of fair hearing after filing a Motion on Notice for extension of time to file Memorandum of Appearance, Statement of Defence, list of witnesses, Witnesses Statement on Oath, List of documents and other documents out of time.”
On behalf of the respondent, learned counsel articulated two issues for determination as follows:
“1. Whether an Appellant who chooses to file an application before the Court on the date stated by the Court for judgment or ruling and is yet to serve the necessary parties will complain of denial of fair hearing.
2. Whether judgment Orders and other orders of Court are meant to be obeyed by the parties.”
The appellant’s amended notice of appeal contains only one ground of appeal and, therefore, it is not capable to give ‘birth’ to more than one issue. The law is that a party cannot distill more than one issue from a ground of appeal. See Niger Construction Co. Ltd v. Okugbeni (1987) 4 NWLR (Pt. 67) 787; Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267 and John Shoy Int’l Ltd v. Federal Housing Authority (2016) 14 NWLR (Pt. 1533) 427.
In the case of Lasisi Ogbe v. Sule Asade (2009) 18 NWLR (Pt. 1172) 106 at 123-124 per Chukwuma-Eneh, JSC, the Supreme Court specifically held that:
“Two issues cannot be raised from one ground of appeal as a ground of appeal is supposed to encompass a single complaint. “
Another principle of law, relevant here, is that an issue for determination must arise from the grounds of appeal. See State v. Dr. Olu Onagoruwa (1992) 2 NWLR (Pt. 221) 333 and David Amadi v. Attorney-General of Imo State (2017) 11 NWLR (Pt. 1575) 92. Therefore, an issue which is not covered by a ground of appeal is incompetent. See Rear Admiral Francis Echie Agbiti v. The Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175 and Dr. Ray Pedro Ugo v. Augustina Chinyelu Ugo (2017) 18 NWLR (Pt. 1597) 218.
The second issue formulated by the learned counsel for the respondent does not arise from the appellant’s sole ground of appeal and it is hereby struck out, for being incompetent.
The appeal will be resolved on the lone issue raised by the learned counsel for the appellant.
Clifford Oba, Esq., learned counsel who settled the appellant’s brief contended that the appellant was “denied his right to fair hearing after filing an application or a motion on notice for extension of time to file memorandum of appearance, statement of defence, list of witnesses, witness statement on oath, list of documents and other documents out of time”. Learned counsel then submitted, inter alia, that:
“The general principle of law is trite and well established that all applications properly brought before a Court must be heard. The reasoning behind this principle is well founded because it is only equitable that a party to a cause or matter should be entitled and ought to be given the opportunity to be heard on his application before a decision can be given either in his favour or against him. This reiterates and affirms the principle of fair hearing as enshrined in our constitution which demands and establishes that all parties must be heard for proper determination of their case. Any breach of this principle will naturally nullify the proceedings, as it has been held in the case of ENEBELI VS. CBN (2006) 9 NWLR (Pt.984) 69 At 78.
In other words, an application may not necessarily have merit, it may be bogusly and inelegantly framed or may even be frivolous, be that as it may, once it is shown that there is some legal basis for the application, the Court is bound to hear it. It is not optional or discretional. See the case of CHARLES ODEDO VS. P.D.P (2015) 63 NSCQR 388 at PP. 425 – 426, per C.B OGUNBIYI, JSC.
A Court has to let a party know the fate of his application (motion) whether properly or improperly brought before the Court. The Court is duty bound to express in writing whether it agrees with the application or not. See the case of ONYEKWULUJE VS. ANIMASHAUN (1996) 3 NWLR Pt. 439 P. 637.
A motion, whether on notice inter parties or ex- parte isa suitor action. See the case of A.D. VS. FAYOSE & ORS (2004) ALL FWLR (Pt.222) 1719 at 1733 CA.
However once a party files an application (motion) it has to be considered, so as to avoid breach of the applicant’s fundamental right to fair hearing. See the case of DANTATA & SAWOE CONSTRUCTION CO. LTD. VS. IBRAHIM (2004) ALL FWLR (Pt.208) 930 at 938 C.A.
My Lords, the Appellant filed an application before the trial High Court for extension of time to file the necessary processes to enable him comply with Order 11 Rule 4 of the High Court of Niger State Civil Procedure Rules 2012 but same application was not considered by the trial High Court, but proceeded to enter judgment in favour of the Respondent as per its claims.
My Lord, we submit that the refusal of the trial Judge to hear the application duly filed by the Appellant before the Registry of the trial Court amounts to a deliberate refusal to hear the application and it is a breach of fundamental right to fair hearing of the Appellant as enshrined in the constitution of the Federal Republic of Nigeria (As Amended).
We further submit My Lords that all the proceedings which followed such a breach should be nullified by this Honourable Court.”
In his response, B. O. Aghaegbuna, Esq., learned counsel for the respondent submitted, inter alia, as follows:
“…the appellant in this case was not denied any right of fair hearing at all. This is so because the appellant was served with the respondent processes since 14/7/2017. The appellant instead of responding as stipulated by law chooses(sic) to go to sleep and on 29/1/2018 when the Court slated the matter for ruling/judgment, the appellant woke from slumber and rushes(sic) to the registry of the Court to file a motion on notice for extension of time to file the appellant processes out of time while the rulings/judgment in respect of the suit is going on in the open Court.”
Learned counsel for the respondent relied on the case of M. S. S. Ltd v. Oteju (2005) Vol. 128 LRCN 1503 and contended that “the appellant was not denied a fair hearing by the trial Court but rather the appellant having no defence chooses (sic) not to file anything before the Court as prescribed by the law.”
The concept of fair hearing requires or envisages that the contending parties to a case should be given opportunities, by the Court, to present their respective cases without let or hindrance from the beginning to the end. See Ekpeto v. Wanogho (2004) 18 NWLR (Pt. 905) 394. It also requires the Court or Tribunal to be fair and impartial, without showing any bias against or in favour of any of the parties before it. See Newswatch Communications Limited v. Alhaji Aliyu Ibrahim Atta (2006) 12 NWLR (Pt. 993) 144.
The law is that fair hearing lies in the procedure adopted in the determination of a case and not in the correctness of the Court’s decision. See U.B.A. Ltd v. Achoru (1990) 6 NWLR (Pt. 156) 254 and State v. Dr. Olu Onagoruwa (1992) 2 NWLR (Pt. 221) 33 at 56.
It is an indispensable requirement in the administration of justice that a Court or Tribunal must be fair and just, and should hear both sides of a case by giving the parties ample opportunity to present their respective evidence and perspectives of the case. See U.B.N Ltd. v. Nwaokolo (1995) 6 NWLR (Pt. 400) 127; Olumesan v. Ogundepo (1996) 2 NWLR (Pt. 433) 628; Ekiyor v. Bomor (1997) 9 NWLR (Pt. 519) 1 and Simon Ezechukwu v. I. O. C. Onwuka (2006) 2 NWLR (Pt. 963) 151.
The legal implication of denial of a party’s right to fair hearing is that the Court is in breach of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the rules of natural justice and its own rules. See Alhaji Chief Yekini Otapo v. Chief R. O. Sunmonu & Ors (1987) 2 NWLR (Pt. 587) and State v. Dr. Olu Onagoruwa (supra).
The consequence is that a decision reached by a Court or Tribunal in breach of a party’s right to fair hearing cannot be regarded as valid. See Deduwa v. Okorodudu (1976) 9-10 SC 329 and State v. Dr. Olu Onagoruwa (supra).
It should be noted, however, that a complaint of a denial of right to fair hearing is not, and should not be, treated as a magic wand that once it is raised judgment has to be entered in favour of the party who has raised it.
The law is that an indolent party cannot be aided by the Court, when he complains of lack of fair hearing. See Vincent Ugo & 3 Ors v. Diokpa Ummuna & 4 Ors (2018) 2 NWLR (Pt. 1602) 102 at 131 per Musa Dattijo Muhammad, JSC.
It also been held that where a party indulges in delays, he cannot validly complain of denial of his right to fair hearing. See Muhammadu v. Kano Native Authority (1968) 1 All NLR 424; Okoduwa v. State (1988) 2 NWLR (Pt. 76) 333; Kotoye v. C.B.N. (1989) 1 NWLR (Pt. 98) 419; Savannah Bank Nigeria Plc v. Motor Parts Installation Enterprises Limited (1997) 3 NWLR (Pt. 492) 209; Otu v. Udonwa (2000) 13 NWLR (Pt. 683) 157 and Simon Ezechukwu v. I.O.C. Onwuka (2006) 2 NWLR (Pt. 963) 151.
What then are the relevant facts of this case?
As stated earlier, the respondent’s writ of summons, statement of claim and the motion on notice for summary judgment were filed in the registry of the lower Court on 17/07/2017 – pages 1 to 10 of the record of appeal. On the 23rd day of October, 2017 when the matter was fixed for the hearing of the respondent’s motion for summary judgment, one A. A. Owobi, Esq. appeared for the appellant and asked for two weeks adjournment “so that we can be before the Court properly”. Learned counsel for the respondent – B. O. Aghaegbuna, Esq., reminded the trial Court that the motion was supposed to be moved on the “26th of September, 2017 but we were not able to do so”. He further informed the Court that:
“My Lord my learned friend took this date and I don’t know why he is complaining today. See Order 11, Rule 1 (HCCPR) of the Rules of this Court.”
The trial Court, however, ruled as follows:
“In the interest of fair hearing I will reluctantly concede to the application of learned counsel for the defendant.
The matter is adjourned to 26/10/2017 to enable the Defendant do the needful.”
See pages 132 to 133 of the record of appeal.
The record of proceedings on 26/10/2017 is partly as follows:
“Court Resumes 26/10/2017.
B. O. Aghaegbuna Esq: for the plaintiff/applicant.
Plaintiff in Court.
Defendant Absent.
Court Clerk:- My Lord I was informed that the defendant counsel called the registrar requesting for a short adjournment.
B.O. Aghaegbuna Esq:- My Lord that is not the principle of the Court. My Lord a party cannot take adjournment through phone call. It was the Defendant that took this adjournment. Based on that my Lord I am ready to proceed with the application.
Court:- Very well it has being settled that adjournment should be filed before the Court. In the absence of any adjournment letter from counsel to the defendant, the plaintiff is hereby ordered to proceed with his matter.”
It is on record that the respondent’s motion on notice for summary judgment was accordingly, moved on 26/10/2017 and the trial Court adjourned the case to 29/01/2018 for ruling.
On the 29th day of January, 2018, part of the record of the proceedings of that day is as follows:
“C. A. Uche holding the brief for Ben Aghaegbuna for the Plaintiff.
A. A Owobi for the defendant/respondent.
C. A Uche Esq., my Lord the matter is for ruling.
A. A Owobi: My Lord we have an application before the Court for extension of time. We also filed a defense and all other processes against the motion filed the summary judgment.
Uche Esq:. My Lord we are just served this morning with their motion. My Lord, the business of today is for ruling. We are ready to take the ruling.
Court: Where a party is served with the processes and documents referred to in Order 11 Rule 1 of this Order intends to defend the suit shall not later than the time prescribed for defence, file.
a. His statement of defence
b. Depositions of his witnesses
c. The Exhibits to be used in his defence and
d. A written address in reply to the application for summary judgment.
It is clear that the defendant did not abide by the provisions of the above. The ruling of the Court is ready and I am going ahead to deliver it.”
From the proceedings of the trial Court, some of which have been reproduced in this judgment, to say the least, the appellant was evidently indolent in the defence of the respondent’s case or claim and he (the appellant) indulged in deliberate delays and, in the process, shot himself in his foot and did not file any response to the respondent’s case and/or motion as required by Order 11 Rule 4 of the High Court of Niger State (Civil Procedure) Rules, 2012.
The appellant’s purported motion on notice filed on 29th day of January, 2018 more than two clear months after the respondent’s motion for summary judgment had been reserved for ruling further confirms or shows that he was very indolent in his defence of the respondent’s claim.
Having regard to the totality of the facts and circumstances of this case, the trial Court did not breach the appellant’s right to fair hearing, as the appellant was afforded all the opportunity to defend the action but he carelessly or deliberately squandered or wasted same by being indolent and indulging in avoidable and unnecessary delays which no reasonable Court or Tribunal could have judicially condoned.
Without more, the lone issue in this appeal is resolved against the appellant.
The appeal, therefore, fails for it lacks merit and it is hereby dismissed.
The decision of the trial Court contained in its ruling, per Hon. Justice Mariya M. Ismaila, delivered in Suit No. NSHC/SD/64/2017 on the 29th day of January, 2018 is hereby affirmed.
The sum of N300,000.00 (Three Hundred Thousand Naira Only) is hereby awarded as costs in favour of the respondent and against the appellant.
UCHECHUKWU ONYEMENAM, J.C.A.: I had the privilege of reading before now the draft copy of the judgment just delivered by my learned brother MOORE ASEIMO ABRAHAM ADUMEIN, JCA. I agree with His Lordship that the appeal lacks merit. I hereby dismiss the appeal for the same reasons adduced in the lead judgment and affirm the ruling of the High Court of Niger State, delivered on January 29, 2018 by Mariya M. Ismaila, J. in Suit No. NSHC/SD/64/2017.
I abide by the order as to costs.
MOHAMMED MUSTAPHA, J.C.A.: I have had the privilege of reading in advance the judgment of my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN JCA just delivered. I am entirely in agreement with the reasoning and conclusion reached therein.
Appearances:
Clifford Oba, Esq. with him, Onesi Peters, Esq. For Appellant(s)
C. A. Uche, Esq. For Respondent(s)
