ALFA BASIRU BABATUNDE TIJANI & ANOR v. PA. ISAIAH OYEWO & ORS
(2019)LCN/13287(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of May, 2019
CA/IB/304/2014
JUSTICES
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
1. ALFA BASIRU BABATUNDE TIJANI
2. WOLE AKANDE Appellant(s)
AND
1. PA. ISAIAH OYEWO
2. MR. SUNDAY OYEWO
3. MRS. OMOYIOYE OLADELE
4. MRS. FAYEKE OLALEKAN
(For themselves and on behalf of Oladele family) Respondent(s)
RATIO
THE CONSTITUTIONAL RIGHT OF A PARTY TO A FAIR HEARING
Now, the whole of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) has enshrined and guaranteed to persons the right to fair hearing. Particularly, Section 36(1) of the 1999 Constitution (supra) stipulates that:
?36.-(1) In the determination of his 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 impartiality.?
The right to fair hearing as entrenched in Section 36(1) of the Constitution (supra) forms an essential element or bedrock of the rule of law. This right to fair hearing as enshrined in Section 36(1) is a Constitutional entrenchment of the twin pillars of natural justice known by their Latin phrases of ?audi alteram partem? and ?nemo judex in causa sua.? Those phrases simply mean that, a person has the right to be heard before the determination of his civil rights and obligations; and that no person should be a judge in his own cause. The right to fair hearing enjoys Constitutional guarantee, and therefore a breach of it in any trial or proceeding goes to the root of the trial or proceedings and may have the effect of nullifying or voiding such trial or proceeding.
It would be seen therefore that the right to be heard is one of the cornerstones of the rules of natural justice as applied in our judicial process; and therefore a fundamental requirement in the administration of justice in Nigeria. See Adigun v. A.G; Oyo State (1987) 18 N.S.C.C. (pt.2) 346; Adeyemi v. Ike Oluwa & Sons Ltd (1993) 3 NWLR (pt. 309) 27 at 40; Egwu v. Uniport (1995) 8 NWLR (pt.414) 419; Bamgboye v. University of Ilorin (1999) 10 NWLR (pt.622) 290; A.G; Benue State & Ors v. Umar & Ors (2008) 1 NWLR (pt. 1068) 311 and Arije v. Arije & Ors (2018) LPELR ? 44193 (SC). Thus, in State v. Onagoruwa (1992) 2 NWLR (pt.221) 33, the Supreme Court held that:
?Fair hearing under Section 36 (1) of the Constitution incorporates the audi alteram partem rule? The rule is in fact one of the essential cornerstones of our judicial process. It is an elementary and fundamental principle of administration of justice in Nigeria?.?
The right to fair hearing does not depend on the correctness of the decision arrived at by the Court but lies in the procedure to be followed in the determination of the case. The right to fair hearing in relation to a case therefore means that the proceeding was conducted in accordance with the relevant laws and rules of Court put in place in order to ensure that the principles of fair hearing were observed before the case is determined. In other words, once the principles of natural justice (which includes right to be heard) have been violated in any proceeding, it would be immaterial that the decision of the Court would have been the same, if the rules had been observed. It therefore follows that, a hearing can only be said and seen to be fair when, inter alia, all the parties to the dispute are heard or given the opportunity to be heard. Accordingly, where one of the parties is either denied a hearing, or not afforded the opportunity to be heard, such hearing will be in violation of the audi alteram partem rule. See Aladetoyinbo v. Adewunmi (1990) 6 NWLR (pt.154) 98; Pam & Anor v. Mohammed & Anor (2008) LPELR ? 2895(SC); Ogundoyin v. Adeyemi (2001) 13 NWLR (pt.750) 430 and Bamgboye v. University of Ilorin (1999) 10 NWLR (pt.622) 290. Inherent in the right to be heard is the duty of the Court to inform the parties of the date, time and place of the hearing. PER TSAMMANI, J.C.A.
WHETHER OR NOT THE ISSUANCE AND SERVICE OF HEARING NOTICE IS A CONDITION PRECEDENT TO THE HEARING OF ANY SUIT
The issuance and service of hearing notice in respect of a proceeding before a Court of law on a party entitled to such service is a condition precedent to the hearing of any suit. It is of such fundamental nature that its breach will have the effect of voiding any proceeding conducted in the absence of such service. In other words, service of Court process/hearing notice is a pre-condition to the vesting of jurisdiction in the Court. Accordingly, where notice of proceedings is required, failure to notify any party is a fundamental omission which will entitle the party not served before the order of Court is made against him, to have the proceedings and order set aside. Thus, failure to serve or issue notice of hearing where such notice is required, is a fundamental omission which goes to the root of the jurisdiction of the Court; and liable to be set aside as a nullity. See Ecobank & Anor v. U. Jecklin (Nig.) Ltd (2015) LPELR ? 24759 (CA); Skenconsult (Nig.) Ltd & Anor v. Ukey (1981) 1 S.C.6; Achuzia v. Ogbomah (2016) LPELR ? 40050 (SC); Aluko v. Ajiboye (2011) LPELR ? 8836 (CA) and Shell Pet. Dev. Co. Nig. Ltd v. Esowe (2008) 4 NWLR (pt.1076) 72. My Learned Brother, Ekpe, JCA elucidated on the point in the case of Akpabuyo LG v. Edim (2003) 1 NWLR (pt.800) 23 as follows: The aspect of the case that I want to emphasise upon is the non-service of hearing notice on the Appellant for the proceedings of 16th December, 1999 and/or thereafter in the Court below. It is the law and practice of our Courts that where hearing notice is shown to have not been served on a party for the hearing of a matter on a particular date, the Court or Judge before whom the matter is pending should, while adjourning it to another date, order that fresh hearing notice be served on the party against that adjourned date. Untill the hearing notice is shown or proved to have been served on that party, it will be improper for the Court or Judge to embark upon the hearing of the matter as that will amount to a clear violation of the right to fair hearing. Proof of service of process of the Court is by affidavit of service shown to by the bailiff of the Court who effected the service of the process. PER TSAMMANI, J.C.A.
WHETHER OR NOT THE BURDEN OF PROOF IS ON THE PARTY WHO ALLEGES THE VIOLATION OF HIS RIGHT TO FAIR HEARING
The burden is on the party who alleges the violation of his right to fair hearing to prove same. The evidence of violation can be deduced from the record of appeal. This is because, the trial Court is required to state clearly that the right to fair hearing has been complied with. In other words, it is the record of appeal that will disclose whether or not there was compliance with the requirements of fair hearing. Thus, where the issue boils down to whether or not hearing notice was issued and duly served, it is record of appeal and the affidavit of service deposed to by the Bailiff who effected such service that will suffice. See Gbadamosi v. Dairo (2007) 3 NWLR (pt.1021) 282 at 307 paragraph D; Mbanefo v. Molokwu (2009) 11 NWLR (pt.1153) 431 449; Raji v. Wema Bank (2015) LPELR ? 41699 (CA); Maikyo v. Itodo & Ors (2007) LPELR – 1821 (SC) and Magit v. University of Agriculture, Makurdi (2006) All FWLR (pt.298) 1313. In Udoka & Anor v. Urua (2013) LPELR ? 22152 (CA), my learned brother, Garba, JCA said:
. I would in line with the above principle now consider the facts and circumstances of the Appellants? case of denial of his right to fair hearing as contained in the record of the appeal not forgetting the law that the burden is on the party alleging a breach of the right to prove it as settled in cases such as It is apparent therefore, that the determination of whether or not there has been a breach of fair hearing would inevitably depend on the facts of that case. Clearly, the record of appeal will be a veritable tool to assist the Court in arriving at a just conclusion. PER TSAMMANI, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Oyo State High Court of Justice, holden at Ibadan delivered by A. A. Aderemi, J., on the 8th day of October, 2013 in Suit No: I/318/2012.
By a Writ of Summons and Statement of Claim filed on the 16/4/2012, the Respondents as Plaintiffs claimed the following reliefs:
(i) Declaration that the Claimants are entitled to the Certificate of Statutory Right of Occupancy over and in respect of the parcel of land situate, lying and being at Arodogun Village, Oke-Omi, Ibadan which is more particularly described and delineated on Plan No: OY/1430/2009/515 dated 23/12/2009 measuring 91.982 Acres, drawn by Oladokun T. O. Registered Surveyor.
(ii) N1 Million jointly and severally from all the Defendants being special and general damages for trespass committed by the Defendants on the said land at Arodogun, Oke-Omi, Village, Ibadan.
(iii) Perpetual Injunction restraining the Defendants by themselves, their Servants, Agents, Privies or any person claiming through, under or in trust for them from further trespassing or
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otherwise entering upon the said land in any part thereof or carrying on any activities on the said land which are inconsistent with the rights of the Claimants.
As required by the Rules of that Court, the statement of claim was accompanied by Written Statements on Oath of the witnesses, copies of the documents to be relied on at the trial and the List of witnesses. The 1st and 2nd Appellants who were the 1st and 2nd Defendants at the trial, responded by filing a joint statement of Defence and counter-claim. It was also accompanied by the Written Statements on Oath of their witnesses, List of witnesses. The 1st and 2nd Defendants/Appellants also filed a Motion on Notice seeking that the suit be struck out or dismissed for want of jurisdiction. They also filed another Motion on Notice praying for interlocutory injunction. The Plaintiffs/Respondents responded to the two motions. In two separate Rulings the learned trial Judge dismissed the motion seeking the striking out or dismissal of the suit for want of jurisdiction but granted the Application for interlocutory injunction. Hearing of the suit then commenced on the 14/3/2013. At the trial, the
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Plaintiffs/Respondents called witnesses and closed their case. The Defendants/Appellants were absent throughout the hearing but in a considered judgment delivered on the 08/10/2013, the learned trial Judge gave judgment in favour of the Plaintiffs/Respondents. Being dissatisfied with the judgments, the Appellants have filed this appeal.
The Notice of Appeal contained in pages 243 ? 245 of the Record of Appeal was dated the 23/10/2013 and filed on the 24/10/2013. It consists of two (2) Grounds of Appeal as follows:
GROUNDS OF APPEAL
1. The learned trial Judge erred in law by denying the Appellants fair hearing contrary to the provisions of Section 33(1) and (2) (sic: 36(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
PARTICULARS OF ERROR
(i) Pleadings were filed and exchanged in this suit.
(ii) The lower Court heard the Applications for interlocutory injunction on 22/01/2013 and adjourned Ruling till 8/02/2013.
?(iii) On 8/2/2013, the Court did not sit to deliver the ruling and the Registrar of the lower Court informed counsel and parties that a new date for the delivery of
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the Ruling will be communicated to them.
(iv) That since, no hearing notice was issued and served on the Appellants before the delivery of the Ruling.
(v) Counsel to the Appellants at the lower Court abandoned the case without their knowledge and since they have no notice of any further proceedings in the case.
(vi) No hearing notice was served on the Appellants personally to intimate them of further development on the matter.
2. The Lower Court lacks necessary competence and jurisdiction to hear and determine Suit No: I/318/2012 in view of a valid and subsisting judgment in Suit No: 13/2011 delivered on 8/6/2011.
PARTICULARS OF ERROR
(i) Suit No: I/318/2012 is caught in the web of the doctrine of estoppel per rem judicatam as parties, subject matter and issues were the same as in Suit No: 13/2011.
(ii) Parties include privies.
(iii) Issue of jurisdiction can be raised at any stage of the proceedings.
(iv) A plea of estoppel per rem judicatam deprives the Court of jurisdiction to determine an issue to which it relates if it succeeds.
?(v) The existence of the judgment in Suit No:
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13/2011 was brought to the attention of the learned trial Judge both in the Appellants? pleadings and Motion on Notice dated 10th July, 2012 but filed on 12th July, 2012.
(vi) The learned trial Judge misconceived the issue joined and thus failed to resolve this crucial issue which has occasioned a grave miscarriage of justice to the Appellants.
Further Grounds of Appeal will be filed on receipt of the record of proceedings.
As required by the Rules of this Court, the parties filed and exchanged Briefs of Arguments. The Appellants? Brief of Arguments is dated the 24/11/2015 and filed on the 25/11/15. Therein, only one issue was distilled for determination as follows:
(i). Whether the Appellants who were not served with any hearing notice by the trial Court before the Court proceeded to hear and determine the suit can be said to be given a fair hearing as enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
[Ground 1].
?The Respondents? Brief of Arguments is that dated and filed on the 19/01/2018 but deemed filed on the 17/04/2018. The Respondents
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adopted the sole issue formulated by the Appellants as the issue for determination in this appeal. In reply on points of law, the Appellant filed an Appellants? Reply Brief. It was dated the 31/1/2018 and filed on the 17/4/2018. This appeal shall therefore be resolved on the sole issue as formulated by the Appellant. However, there is a preliminary issue raised by the Respondents in paragraphs 2.03 ? 2.04 of the Respondents? Brief of Arguments. I propose to resolve that preliminary issue first.
On the preliminary issue, Alhaji S. Niyi Ajewole; Esq who settled the Respondents? Brief of Arguments contended that no issue has been raised by the Appellants in respect of ground two (2) of the Notice of Appeal. The cases of Ngilari v. Mothercat Ltd (1999) LPELR ? 1988 and Sapo v. Sunmonu (2010) All FWLR (pt.531) 1408 at 1418 paragraphs E ? F were then cited to submit that, in law, where a ground of appeal is not covered by the issues for determination, it is deemed abandoned and should be struck out. We were accordingly urged to strike out ground two (2) of the Notice of Appeal as having been abandoned.
?Mr. M. O. Oladejo
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who settled the Appellants? Brief of Arguments did not respond to the preliminary issue raised by the Respondent. It is the known law that, where a party raises an issue and the opponent does not respond thereto, it is deemed that the issue is admitted or conceded unless the issue raised is wrong in law. See Brittania-U (Nig.) Ltd v. Seplat Petroleum Development Co. Ltd & Ors (2016) LPELR ? 40007 (SC); Godsgift v. State (2016) LPELR ? 40540 (SC) and F.R.N. v. Saraki (2017) LPELR ? 43392 (CA). In the instant case, the Appellant did not respond to the preliminary issue raised by the Appellant. That point is therefore deemed conceded.
Indeed, it is the settled law that appeals are determined on the issues formulated and the issues formulated must flow or take root from the grounds of appeal filed. Consequently, any ground of appeal from which no issue is formulated is deemed abandoned. Such issue is liable to and should be struck out. See Ogbe v. Asade (2009) 18 NWLR (pt.1172) 106; Amaran v. Virgin Atlantic Airways & Ors (2018) LPELR ? 44786 (CA); Eke v. Ogbonda (2006) 18 NWLR (pt.1012) 506 and Adeshola v. Rahman (2018) LPELR
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? 45699 (CA). That being so, since no issue was distilled from Ground Two (2), same is hereby struck out as having been abandoned.
Now, arguing the lone issue, learned counsel for the Appellant cited the cases of University of Lagos & 3 Ors v. Dr. Fidelis Nwokedi Amatokwu (2015) 13 WRN 176 at 195 ? 196 and Ogundoyin v. Adeyemi (2001) 12 NWLR (pt.730) 403 at 423, to contend that, a hearing can only be said to be fair when all the parties to the dispute are given a hearing or opportunity to be heard. That, accordingly, where one of the parties is refused a hearing, or not given opportunity to be heard, the hearing cannot qualify as fair hearing. That, for a party to be availed the benefit of fair hearing, it must be shown that from all the circumstances of the proceedings, they were indeed given the right to present their case. The case of Zaboley International Ltd v. Oye Omegbehin & Anor (2005) 46 W.R.N. 103 at 137 ? 138 was cited in support and to further submit that, the crux of the Appellants? case is that they were no hearing notices served on them before the trial Court proceeded to hear and determine the suit.<br< p=””
</br<
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Learned Counsel for the Appellant went on to submit that, from the record of appeal, the trial Court delivered Ruling on the Application for interlocutory injunction in the absence of the Appellants and their counsel as shown in page 170 of the record of appeal. That, as shown in page 175 of the records, the Plaintiffs/Respondents opened their case in the absence of the Appellants on the 14/3/2013 but there is no evidence on the record that hearing notice was served on the Appellants and their counsel before that date. That the learned trial Judge only relied on the oral submission of the Respondents? counsel to the effect that he had called the Appellants? counsel to remind him that the case would come up on that date. In fact, learned counsel for the Appellant referred in detail to the history of the proceedings as evidenced on the record of appeal, to contend that, it is apparent from records, that the Appellants were not present throughout the trial, though in some instances, the learned trial Judge ordered hearing notices to be served on them but there is no evidence on the record of appeal, that such hearing notices were served on the
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Appellants. That, the learned trial Judge relied mostly on submissions of the Respondents? learned counsel as indication that hearing notices were served on the Appellants.
It was then contended that, by virtue of Section 6(5)(e) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the trial Court being a Court of record is bound by its own record, particularly, the report of the Bailiff who had served such hearing notices, if any had indeed been served and not on the oral submission of counsel to any of the parties. It was accordingly submitted that, failure to serve hearing notices on the Appellants before the case was heard and determined resulted to denial of fair hearing. The case of Alhaji Abdulkareem Mankanu & Anor v. Mallam Garba Salman (2005) WRN 149 at 165 was then cited to also submit that failure of the learned trial Judge to ensure that the Appellants were served hearing notice before proceeding to hear and determine the suit was a breach of fair hearing against the Appellants, and therefore, null, void and of no effect.
Learned Counsel for the Appellants also cited the cases of Scott Emuakpor v. Ukavbe & Ors ?
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(1975) NSCC (Vol.9) 435 at 439; Dawodu v. Ologundudu (1986) 4 NWLR (pt.33) 104 at 114; Madam Kinkuiya Odija v. Ezedinon Okwudima & 2 Ors (1969) NMLR 121; Layanju v. Araoye 4 FSC 154 and Craig v. Kanseen (1981) 1 S.C.6 to contend that, the failure to serve hearing notice on the Appellants amounts to breach of the principles of natural justice. That the breach goes to the root of the competence and jurisdiction of the trial Court to have heard and determined the suit. The cases of Unilag v. Amatokwu (supra) at 196 ? 197 and Alhaji Tijani Hashim v. Minister, FCT & 3 Ors (2005) 43 WRN 88 at 104 ? 105 were then cited to urge us to hold that the failure to serve hearing notice on the Appellants rendered the trial a nullity, and to resolve the issue in favour of the Appellants.
?
In response, learned counsel for the Respondents contended that, the Additional Record of Appeal at page 232 show that on the 7/6/2013 the Appellants Counsel refused service; and page 233 shows the Affidavit of service of the enrolled order of the Court, hearing notice and a Letter on the Appellants? Counsel. That at pages 235 and 237 of the Additional
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Record of Appeal are Affidavits of service of Hearing Notice on the Appellants? Counsel. That at page 236 of the Record of Appeal is a Letter written and served on the Appellants? Counsel; Olusegun Jayeola; Esq which showed that the Appellants? Counsel was in Court when the matter was adjoined to the 14/3/2013. That the said counsel was also informed of the hearing fixed for 7th and 8th days of May, 2013. That the Additional Record of Appeal discloses that the Appellants? Counsel was notified of the proceedings on the dates the Appellants complain of.
Learned Counsel for the Respondents went on to submit that, the Appellants? Counsel was served hearing notice. Furthermore, that neither the Court nor the Respondents were aware that the Appellants? Counsel was no longer representing the Appellants as there was no notice to that effect. The cases of Shahimi v. Akinola (1993) 5 NWLR (pt.294) 434 at 447 paragraphs C ? D and Afonja Community Bank (Nig.) Ltd v. Akpan (2003) All FWLR (pt.146) 909 at 921 ? 922 paragraphs D ? A were cited in support, and to further submit that in any case, service on counsel at
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the address given by him is good service on the litigant. Learned Counsel for the Respondent conceded that failure to serve notice of hearing on a party to a case robs the Court of jurisdiction, and that all the cases cited by the Appellants have correctly stated the principles. Learned Counsel however posited that, the facts of this case are different from the facts of the cases cited in that, as in this case, there are proofs of service of Hearing Notices on the Appellants? Counsel at the trial Court. Furthermore, that in this case, the principles of fair hearing were observed by the trial Court. The case of Ezechukwu v. Onwuka (2016) All FWLR (pt.824) 148 at 166 paragraphs B ? E was cited to urge us to hold that the Appellants failed to establish failure of fair hearing; and to dismiss the appeal.
?
Replying on points of law, learned counsel for the Appellants argued that there is nothing on the records to show that hearing notice was served on the Appellants before commencement of proceedings on the 14/3/2013. That, there is nothing to show that the letters on pages 236 and 238 of the supplementary record, were served as there is nothing on
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those letters to show who received the letters and the name of the person that effected the service. In effect, that there is no Affidavit of service by the person who served the letters. It was that contended that such omission is fatal and support the Appellants? claim that no hearing notices were served on them before the matter was heard and determined. That at page 232 of the Additional Record of Appeal, the Bailiff had deposed to Affidavit of non-service. The case of Mbadinuju v. Ezuka (1994) 8 NWLR (pt. 364) 535 at 554 was then cited in support and to further submit that the Appellants were not accorded any opportunity to be heard as no hearing notices were served on them before the case was heard and determined.
?
Now, the whole of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) has enshrined and guaranteed to persons the right to fair hearing. Particularly, Section 36(1) of the 1999 Constitution (supra) stipulates that:
?36.-(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled
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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 impartiality.?
The right to fair hearing as entrenched in Section 36(1) of the Constitution (supra) forms an essential element or bedrock of the rule of law. This right to fair hearing as enshrined in Section 36(1) is a Constitutional entrenchment of the twin pillars of natural justice known by their Latin phrases of ?audi alteram partem? and ?nemo judex in causa sua.? Those phrases simply mean that, a person has the right to be heard before the determination of his civil rights and obligations; and that no person should be a judge in his own cause. The right to fair hearing enjoys Constitutional guarantee, and therefore a breach of it in any trial or proceeding goes to the root of the trial or proceedings and may have the effect of nullifying or voiding such trial or proceeding.
It would be seen therefore that the right to be heard is one of the cornerstones of the rules of natural justice as applied in our judicial process; and therefore a fundamental requirement
15
in the administration of justice in Nigeria. See Adigun v. A.G; Oyo State (1987) 18 N.S.C.C. (pt.2) 346; Adeyemi v. Ike Oluwa & Sons Ltd (1993) 3 NWLR (pt. 309) 27 at 40; Egwu v. Uniport (1995) 8 NWLR (pt.414) 419; Bamgboye v. University of Ilorin (1999) 10 NWLR (pt.622) 290; A.G; Benue State & Ors v. Umar & Ors (2008) 1 NWLR (pt. 1068) 311 and Arije v. Arije & Ors (2018) LPELR ? 44193 (SC). Thus, in State v. Onagoruwa (1992) 2 NWLR (pt.221) 33, the Supreme Court held that:
?Fair hearing under Section 36 (1) of the Constitution incorporates the audi alteram partem rule? The rule is in fact one of the essential cornerstones of our judicial process. It is an elementary and fundamental principle of administration of justice in Nigeria?.?
The right to fair hearing does not depend on the correctness of the decision arrived at by the Court but lies in the procedure to be followed in the determination of the case. The right to fair hearing in relation to a case therefore means that the proceeding was conducted in accordance with the relevant laws and rules of Court put in place in order to ensure that the
16
principles of fair hearing were observed before the case is determined. In other words, once the principles of natural justice (which includes right to be heard) have been violated in any proceeding, it would be immaterial that the decision of the Court would have been the same, if the rules had been observed. It therefore follows that, a hearing can only be said and seen to be fair when, inter alia, all the parties to the dispute are heard or given the opportunity to be heard. Accordingly, where one of the parties is either denied a hearing, or not afforded the opportunity to be heard, such hearing will be in violation of the audi alteram partem rule. See Aladetoyinbo v. Adewunmi (1990) 6 NWLR (pt.154) 98; Pam & Anor v. Mohammed & Anor (2008) LPELR ? 2895(SC); Ogundoyin v. Adeyemi (2001) 13 NWLR (pt.750) 430 and Bamgboye v. University of Ilorin (1999) 10 NWLR (pt.622) 290. Inherent in the right to be heard is the duty of the Court to inform the parties of the date, time and place of the hearing.
The issuance and service of hearing notice in respect of a proceeding before a Court of law on a party entitled to such service is a condition
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precedent to the hearing of any suit. It is of such fundamental nature that its breach will have the effect of voiding any proceeding conducted in the absence of such service. In other words, service of Court process/hearing notice is a pre-condition to the vesting of jurisdiction in the Court. Accordingly, where notice of proceedings is required, failure to notify any party is a fundamental omission which will entitle the party not served before the order of Court is made against him, to have the proceedings and order set aside. Thus, failure to serve or issue notice of hearing where such notice is required, is a fundamental omission which goes to the root of the jurisdiction of the Court; and liable to be set aside as a nullity. See Ecobank & Anor v. U. Jecklin (Nig.) Ltd (2015) LPELR ? 24759 (CA); Skenconsult (Nig.) Ltd & Anor v. Ukey (1981) 1 S.C.6; Achuzia v. Ogbomah (2016) LPELR ? 40050 (SC); Aluko v. Ajiboye (2011) LPELR ? 8836 (CA) and Shell Pet. Dev. Co. Nig. Ltd v. Esowe (2008) 4 NWLR (pt.1076) 72. My Learned Brother, Ekpe, JCA elucidated on the point in the case of Akpabuyo LG v. Edim (2003) 1 NWLR (pt.800) 23 as follows:<br< p=””
</br<
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?The aspect of the case that I want to emphasise upon is the non-service of hearing notice on the Appellant for the proceedings of 16th December, 1999 and/or thereafter in the Court below. It is the law and practice of our Courts that where hearing notice is shown to have not been served on a party for the hearing of a matter on a particular date, the Court or Judge before whom the matter is pending should, while adjourning it to another date, order that fresh hearing notice be served on the party against that adjourned date. Untill the hearing notice is shown or proved to have been served on that party, it will be improper for the Court or Judge to embark upon the hearing of the matter as that will amount to a clear violation of the right to fair hearing. Proof of service of process of the Court is by affidavit of service shown to by the bailiff of the Court who effected the service of the process
?The burden is on the party who alleges the violation of his right to fair hearing to prove same. The evidence of violation can be deduced from the record of appeal. This is because, the trial Court is required to state clearly that the
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right to fair hearing has been complied with. In other words, it is the record of appeal that will disclose whether or not there was compliance with the requirements of fair hearing. Thus, where the issue boils down to whether or not hearing notice was issued and duly served, it is record of appeal and the affidavit of service deposed to by the Bailiff who effected such service that will suffice. See Gbadamosi v. Dairo (2007) 3 NWLR (pt.1021) 282 at 307 paragraph D; Mbanefo v. Molokwu (2009) 11 NWLR (pt.1153) 431 449; Raji v. Wema Bank (2015) LPELR ? 41699 (CA); Maikyo v. Itodo & Ors (2007) LPELR – 1821 (SC) and Magit v. University of Agriculture, Makurdi (2006) All FWLR (pt.298) 1313. In Udoka & Anor v. Urua (2013) LPELR ? 22152 (CA), my learned brother, Garba, JCA said:
. I would in line with the above principle now consider the facts and circumstances of the Appellants? case of denial of his right to fair hearing as contained in the record of the appeal not forgetting the law that the burden is on the party alleging a breach of the right to prove it as settled in cases such as
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It is apparent therefore, that the determination of whether or not there has been a breach of fair hearing would inevitably depend on the facts of that case. Clearly, the record of appeal will be a veritable tool to assist the Court in arriving at a just conclusion.
Now, I have carefully perused the record of appeal transmitted to this Court on the 27/8/14 and deemed transmitted on the 13/10/2015. It is apparent from the said record that, when the Appellants were served, the Respondents? claim, learned counsel, Olusegun Jayeola; Esq filed two motions before the Court. The first motion which was filed on the 12/7/2012 prayed the Court to strike out or dismiss the suit for want of jurisdiction. The second motion filed on the 20/9/2012 sought for an order of interlocutory injunction. The Plaintiffs/Respondents responded to the two Applications by filing Counter-Affidavits. Upon the filing of a Memorandum of Appearance by Segun Jayeola; Esq of counsel, the 1st & 2nd Defendants/Appellants filed a Joint Statement of Defence and Counter-Claim on 28/9/2012. The trial Court delivered Ruling on the motion to strike out or dismiss the suit on the 22/1/13. On
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that date, the 1st Defendant/Appellant and Jaiyeola; Esq of counsel were in Court. There is however no record of the adjournment of the suit. Ruling on the motion for interlocutory injunction was delivered on the 8/2/2013 in the absence of the Appellants and their counsel; and there is no record of whether they were served notice of the date for the Ruling. There is also no record that the suit as adjoined to any particular date after the Ruling of 8/2/2013.
?
The record of appeal indicates at page 175 that hearing in the suit started on the 14/3/2013 in the absence of the Appellants. The learned trial Judge did not endeavor to establish whether hearing notice had been served on the Appellants but merely relied on information from learned counsel for the Respondents that he had called the Appellants? learned counsel to inform him that the matter would come up on that day. On that information alone, the learned trial Judge granted leave to the Plaintiffs/Respondents to open their case, which they did by calling one witness who testified as CW1. The suit was then adjourned to the 2nd, 7th and 8th days of May, 2013 with the trial Court ordering fresh
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hearing notice to be served on the Appellants. The trial Court further directed counsel for the Claimants/Respondents to write a letter to Counsel for the Appellants intimating him of the last date of adjournment.
When the case came up on the 2/5/2013, there was no proof of service on the Appellants and the case was further adjourned to the 7th and 8th days of May, 2013 with an order that fresh hearing notice be served on the Appellants. Claimants/Respondents? counsel was again directed to write the Appellants? Counsel informing him of the adjournment. On the 7/5/2013, there was no proof of service on the Appellants but the Respondents? Counsel informed the Court that Appellants? counsel was in Court earlier that day but left. Despite absence of service on the Appellants, the learned trial Judge merely relied on information from the Claimants/Respondents? Counsel to proceed with the hearing of the suit on that day. Two witnesses were then called by the Respondents who testified as the C.W.2 and C.W.3, and the Respondents closed their case. The suit was then adjourned to the 8/5/2013 for further hearing. However, no hearing
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notice was ordered to be issued and served on the Appellants.
?
The record of appeal does not disclose that there was any proceeding on the 8/5/2013. It was on the 3/6/2013 when the matter came up again for further hearing. It is recorded that the Appellants and their counsel were not in Court. Proceeding was then adjourned to the 17/6/2013 with an order that fresh hearing notice is to be issued and served on the Appellants? Counsel. Respondents? counsel was again directed to write and inform the Appellants? counsel of the adjournment. When the matter came up on the 17/6/2013, the learned trial Judge received information from the Respondents? Counsel that the Appellants? Counsel had collected the hearing notice. The learned trial Judge then observed that, the Appellants? learned Counsel is avoiding service, and accordingly granted leave to the Respondents counsel to file Written Address. The suit was then adjourned to the 24/6/2013 for adoption of the Written Address. In is instructive to note that, further hearing for the defence (Appellants) was closed. Consequently, no further hearing notice was ordered to be issued
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and served on the Appellants.
On the 24/6/2013, the Appellants and their Counsel were again absent. The learned trial Judge observed that the Appellants had filed a Motion on the 19/6/2013 but are not in Court to move the motion, and same was struck out. The trial Court also observed that Appellants? Counsel was aware of the sitting that day, but did not disclose how the said Counsel came to be aware of the hearing of that day since no hearing notice had been ordered to be issued to him against that day. The Claimants?/Respondents? learned Counsel then adopted his Written Address and the suit was adjourned to the 18/9/2013 for judgment. It should be noted that, no hearing notice was ordered to be issued and served on the Appellants or their counsel.
?
On the 18/9/2013, the judgment was not delivered and suit was further adjourned to the 04/10/2013 for judgment. Fresh hearing notice was ordered to be issued and served on the Appellants. On the 4/10/2013, the defence is recorded to have been represented by one M.G. Fagbagbo Lawal; Esq who held the Brief of Segun Jayeola; Esq for the defence. There is however no record of what transpired
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in Court that day but judgment was further adjourned to be delivered on the 8/10/2013. The judgment was accordingly delivered on the 8/10/2013 in the absence of the Appellants.
?
From what I have chronicled above, it is apparent that the Appellants were neither heard nor given the opportunity to be heard before the claim against them was heard and determined. Throughout the commencement of hearing till judgment, the Appellants were not in Court and there was the need to issue and serve on them hearing notices. Furthermore, the learned trial Judge had the duty ascertain and be satisfied that hearing notices were issued and served on the Appellants or their counsel. However, that was not done in this case but the learned trial Judge appears to have abdicated his duty and relied on information supplied by learned Counsel for the Claimants/Respondents. No Affidavit of service is recorded to have been deposed to by any bailiff. Indeed, the documents compiled in the Additional Record of Appeal do not satisfy that requirement. None of the documents is recorded by the learned trial Judge at the hearing to have been served on the Appellants or their counsel. Infact
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none of the documents show on its face to have emanated from the trial Court as none of them was certified by the Registry of the trial Court; rather, they were certified by one Joseph E.U a registrar of the Court of Appeal Ibadan. It therefore means that those documents compiled as Affidavit of service are not from proper custody and therefore cannot be relied upon as evidence of such affidavit of service.
On the whole therefore, I am of the view and do hold that the Appellants were never given the opportunity to be heard. The proceedings of the trial Court was therefore conducted in breach of the Appellants? Fundamental Rights to fair hearing as guaranteed them by Section 36(1) of the Constitution of the Federal Republic of Nigeria (supra). Where the proceedings of a Court are conducted in breach of the right to fair hearing, the proceedings and any decision thereon will be a nullity and liable to be set aside. This is so because the decision of the Court based on that null judgment would have the effect of robbing the Court of the jurisdiction to have heard and determine the matter. See A.G. Rivers State v. Ude (2006) 17 NWLR (pt.1008) 436;
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Bakoshi v. Chief of Naval Staff (2004) 15 NWLR (pt.896) 268 at 293; PDP & Ors v. Ezeonwuka & Ors (2017) LPELR ? 42563(SC); Chitra Knitting and Weaving Manufacturing Company Limited v. F.O. Akingbade (2016) LPELR ? 40437(SC) and Nwabueze v. the People of Lagos State (2018) LPELR ? 44113(SC). Thus, Onnoghen, JSC (as he then was) in the case of Chitra Knitting and Weaving Manufacturing Company Limited v. F.O. Akingbade (supra) said:
?What then is the consequence of a breach of the rights of fair hearing as guaranteed under the provision of Section 36 (1) of the 1999 Constitution as amended. It is settled law that a breach of Constitutional Right of fair hearing in any trial or investigation nullifies such trial or investigation and decision taken thereon is also a nullity. The breach of the rights of fair hearing in any proceeding therefore vitiates the entire proceedings. It follows, therefore, that once an Appellate Court finds, as in this case, that there is a breach of the right of fair hearing in the proceeding in issue, it must allow the appeal having no alternative in the matter.?
?On that note, this appeal
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is hereby allowed. The proceeding and judgment of the Oyo State High Court sitting in Ibadan delivered on the 8th day of October, 2013 is hereby set aside. Accordingly, the suit is remitted to the Chief Judge of Oyo State to be heard de novo by another Judge other than A. A. Aderemi, J.
ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the privilege of reading in draft the Judgment just delivered by my learned brother Haruna Simon Tsammani JCA. I entirely agree with his reasoning and conclusion, with particular regard to the fact that the Appellants were never given the opportunity to be heard. There can be no doubt that fair hearing is in most cases synonymous with natural Justice, an issue which clearly is at the threshold of our legal system.
Once there has been a denial of fair hearing as guaranteed under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 as amended, the whole proceedings automatically become vitiated with a basic and fundamental irregularity which renders them null and void. See Mohammed Oladapo Ojengbede v. M.O Esan (Lojaoke) & 1 Or.
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(2001) 8 NSCQR 461. The proceedings of the trial Court was conducted in breach of the Appellants’ fundamental Rights to fair hearing and is therefore a nullity, it is liable to be set aside.
The appeal is also allowed by me. I abide by the consequential orders in the lead Judgment.
FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege to read before now the lead judgment just delivered by my learned brother, Haruna Simon Tsammani JCA and I totally agree with him that this appeal has merit and should be allowed.
The facts leading to this appeal have been fully set out in the lead judgment. The crux of the complaint of the Appellants is that they were not given fair hearing at the lower Court in that they were not served with requisite hearing notices which resulted in their absence at the trial. The law is settled that a Court of law must provide a level playing ground for all parties before it. This would ensure a fair play and indeed fair trial to all participants in the proceedings.
?Right to fair hearing is a constitutional right guaranteed under Section 36 of the 1999 Constitution of the Federal Republic of
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Nigeria (as amended). A Court must ensure that a party to a proceeding must have notice of such proceedings on any date the matter comes up. In other words service of hearing notice on a party is a sine qua non for fair trial.
See ACHUZIA VS. OGBOMAH (2016) 11 NWLR (PT. 1522) 59 AT 75 PARAS E-G; OLORUNYOLEMI VS. AKHAGBE (2010) 8 NWLR (pt. 1195) 48 AT 60 PARAS D – E; ARIAYEFAH NWAOSU VS. IHE NWAOSU (2000) 4 NWLR (PT. 653) 351 359 PARAS G – H; SKEN CONSULT LTD. & ANOR. VS SECONDY UKEY (1981) 1 SC; A.G. RIVERS STATE VS. UDE (2006) 17 NWLR (PT. 1008) 436 AT 457 PARASA – B.
In N.U.T. STATE VS. HABU (2018) 15 NWLR (PT. 16422) 381 AT 392 PARAS A -D Kekere-Ekun JSC held thus:
“The attitude of the Courts to service of Court’s processes were aptly stated thus by this Court in SKEN CONSULT VS. UKEY (Supra) –
“The service of process on the defence (or adversary) so as to enable him appear to defend (or advance) the relief sought against him (or by him) and due appearance by the party or any counsel (retained by him) must be those fundamental conditions precedent before the Court can have competence and jurisdiction. This very
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well accords with the principles of natural justice.”
A Court has a duty to confirm and ensure that service has been properly effected on all parties that may be affected by the outcome of the proceedings. In the instant appeal, the trial judge relied on information from Respondent’s Counsel. He did not bother to cross check whether or not there was affidavit of service or any evidence on record to prove that service was effected on the Appellants. There is no indication on record that the Appellants were served with hearing notices notifying them of the hearing before the lower Court. In our adversarial system of adjudication, failure to notify the Appellants of the hearing of the case at the lower Court through the service of hearing notice robs the lower Court of jurisdiction as the condition precedent for the exercise of such has been breached. This being so, the entire trial was a nullity. It is trite that any proceedings conducted without jurisdiction is a nullity and any judgment thereon is liable to be set aside.
Having failed to notify the Appellants of hearing dates which resulted in the conduct of the trial behind them, the Appellants
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were denied fair hearing.
It is for this and the fuller reasons given by my learned brother in the lead judgment that I also allow this appeal. I abide by all consequential orders made therein.
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Appearances:
M.O. Oladejo, Esq. with him, T.S. Ogundeji, Esq.For Appellant(s)
S.A. Ajewole, Esq.For Respondent(s)
Appearances
M.O. Oladejo, Esq. with him, T.S. Ogundeji, Esq.For Appellant
AND
S.A. Ajewole, Esq.For Respondent