ALFA OLOMOWEWE & ORS v. MRS. OLUBUNMI IRANLADE
(2019)LCN/13628(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 9th day of July, 2019
CA/IB/348/2013
RATIO
FAIR HEARING: WHEN A PARTY IS ABSENT DURING PROCEEDINGS DUE TO NO FAULT OF HIS
It also behooves the trial Court before commencing hearing behind the back of the defendant (appellants) to ensure that the defendants had notice of hearing (after nine months of Court not sitting). This minimal procedural safeguard was not taken. Instead, after being away for nine months, the Court resumed on 15/2/2012 in the absence of defendants and without ensuring the defendants had notice of its resumption declared ?HEARING OPENS?. This is a breach of a Procedural Safeguard for fair hearing. PER NONYEREM OKORONKWO, J.C.A.
FAIR HEARING: IT COVERS BOTH SUBSTANTIVE AND PROCEDURAL MATTERS
Fair hearing, besides the constitutional endorsement in Section 36 of the 1999 Constitution of Nigeria, is a rule of natural justice of great antiquity. It prescribes an unwavering rule that is both procedural and substantive that parties must be given equal opportunity or advantage in the presentation of their cases. PER NONYEREM OKORONKWO, J.C.A.
FAIR HEARING: TEST TO DETERMINE WHETHER THERE WAS FAIR HEARING
The application of the principle of fair hearing is invariably objective and never in the subjective contemplation of the judex. The test of fair hearing being the impression of a reasonable person who was present at the trial whether, from his observation, justice has been done. P.A.I.I. & 2 Ors. vs. Shoreline Lift-boats Ltd. & Anor. (2010) 3 SC (pt. 1) 59 at 73; Inakoju & 17 Ors. vs. Adeleke & 3 Ors. (2007)1 SC (pt. 1) at 110…………………………..
It has been held that in such a case, the decisive question is always whether having regards to all the circumstances of the particular case, the hearing was conducted in such a manner that an impartial observer will conclude that the tribunal was fair to all the parties in the proceedings. Kuusu vs. Udom (1990) 1 NWLR (pt. 127) 421 at 448. PER NONYEREM OKORONKWO, J.C.A.
FAIR HEARING MUST BE CONSISTENT THROUGHOUT THE PROCEEDINGS
Fair hearing must also be consistent and fair throughout the duration of the proceedings from beginning to the end without any cessation or infraction.
In Baba vs. NCATC (1991) 5 NWLR (pt. 192) 388, it was said that ?the concept of Fair hearing is not one that allows a staggered process within which a party may be given fair hearing on certain days, while evidence taken behind his back on other days and back to being put in the picture subsequently”. This scenario captures the facts and circumstances of this case on appeal. PER NONYEREM OKORONKWO, J.C.A.
JUSTICES
NONYEREM OKORONKWO 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 OLOMOWEWE
2. MR. ROTIMI OBATAYO
3. MR. ASIEKHAMEN E.M. AYOBAMI
4. PASTOR ENILOLOBO
5. AUGUSTINE OSOSA
6. PASTOR OBISANYA
7. PASTOR ABINA Appellant(s)
AND
MRS. OLUBUNMI IRANLADE Respondent(s)
NONYEREM OKORONKWO, J.C.A. (Delivering the Leading Judgment): This appeal arose from the judgment and ruling of the Ogun State High Court Coram Mobolaji A. Ojo J. delivered in Suit No. HCT/55/2001 on 25th day of May 2013 wherein the claims of the plaintiff (herein respondent) were all granted.
Background Facts
In the amended statement of claim of the plaintiff at page 73 of the record, the respondent claimed the following reliefs:
a. A DECLARATION that the plaintiff is neither party nor privy to the sales of all that parcel of land situate, lying and being at No.1 Moricase Avenue, Baale Akinosi village near Iju-Ajuwon Ogun State.
b. A DECLARATION that the plaintiff is entitled to all that statutory right of occupancy in respect of all that piece or parcel of fenced land situate, lying and being at No.1 Moricase Avenue, Baale Akinosi Village near Iju-Ajuwon Ogun State.
c. A DECLARATION that the 1st & 2nd Defendants had by means of fraudulent misrepresentation to the plaintiff procured the later to transfer and assign the property in dispute in this case to the 3rd Defendant.
d. AN ORDER that the sales
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of all that piece or parcel of fenced land situate, lying and being at No.1 Moricase Avenue, Baale Akinosi Village near Iju-Ajuwon Ogun State herein mentioned to the 3rd Defendant vide the purchased receipt dated 4th April 2000 be set aside on ground of fraud, misrepresentation and illegality which has colored the said transaction.
e. AN ORDER that the 1st, 2nd & 3rd Defendants pay to the plaintiff the sum of N300,000.00 (Three Hundred Thousand Naira) only as a special and general damages for losses sustained by the plaintiff as a result of the fraudulent, misrepresentation employed by the 1st & 2nd Defendant in causing the property in question in this case to be delivers to the possession and custody of the 3rd Defendant.
f. AN ORDER that the 3rd Defendant deliver up to the plaintiff the custody and possession on the property in question in this case.
g. AN ORDER Restricting the 1st, 2nd and 3rd Defendants perpetually either by themselves, servants, agent and/or privies from further interfering with the plaintiff?s title, right, ownership control and possession of the property in question.
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The defendants (herein appellant) filed an amended statement of defence to which was subjoined a counter-claim wherein the appellants claimed as follows:
?WHEREOF the 1st Defendant Counter-Claim against the Claimant the sum of N1,500:00 (One Thousand Five Hundred Naira Only) being balance of the agreed ten percent (10%) commission due from the Claimant to the 1st Defendant by virtue of the conclusion of the contract of sale between her and the 3rd Defendant in respect of the subject of the within Suit. Interest at the rate of 18% from the month of April, 2000 till Judgment date in this Counter-Claim. And the cost of this Action?.
Before hearing commenced in the case, there were numerous adjournments over a long period of time. The trial Court itself made an express allusion to this state of affairs in the following manner at page 351 of the record where the trial judge recorded thus:
Both counsel filed their addresses but due to a combination of factors, the Court did not sit on a couple of occasions and eventually only the claimant?s counsel was present in Court on 12/12/2012 to adopt the written address and the Court adjourned ruling to 17/1/2013.
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Thereafter, the Court delivered ruling on 17/1/13 and further adjourned the case for continuation of the substantive suit. The record shows that the defendants? counsel last appeared in Court on 24/4/2012. The claimant continued her evidence on 21/2/2013 and closed her case.
The trial Court did not explain what was meant by ?due to a combination of factors the Court did not sit on a couple of occasions?. However the appellants in their brief allege that the trial Judge was on occasions away on National assignment and the office ?was under lock and key? due to an industrial action by Ogun State Judiciary Staff Union; see the affidavit of 3rd defendant at page 302-303 of record at paragraph 8-9. The respondents neither in their brief nor any deposition on record reputed this assertion of fact.
So, in effect, whether National assignment or Industrial action, the baseline is that the Court did not sit on a number of occasion. Parties in a case are often ? enjoined to keep track of their cases and monitor the movement of their case including adjournments or even stoppages for some reasons of expediency but it is a known
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fact that where the Court could not sit for sometime ?due to combination of factor? as the trial Court found in this case, the parties may and most often would lose track of the case necessitating a duty in the trial Court in such circumstance to issue ?hearing notice? to a party or parties as the case may be.
Appeal
In this appeal the complaint of the appellant centered on fair hearing in the sense that hearing notices of the date for resumption of Court sittings were not issued and served by the Court and its official.
In the Notice of Appeal filed by the appellant at page 351 of the record, the first ground of appeal raises the issue of fair hearing poignantly thus:
The learned trial judge erred in law when he failed to apply the principles and doctrines of ?audi altrem partem? fair hearing and substantial justice in the consideration of the said Application of 22/4/13 seeking to Set Aside the proceedings conducted ex-parte the Appellants on 12/12/12, 17/1/13, 21/2/13, 14/3/13 and 9/4/13 without any directive on issuance and or service of Hearing Notice on the Appellants to conclude the hearing which
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led to His Lordship entering of final judgment in favour of the respondent.
Other grounds of appeal accompanied and followed the above primal ground.
Issues for Determination
From the three grounds of appeal filed, the appellant elicited four issues for determination as hereunder.
(i) Whether as recognized by the lower Court inter-alia that due to a combination of factors which did not permit the Court to sit on a couple of occasions the lower Court was not duty-bound in the interest of fairness and justice to order the issuance and service of a Hearing Notice on the Appellants when it resumed sittings on 28/11/12 particularly to further the hearing proceedings from 12/12/12 and such others leading to the judgment of 23/5/13?
(ii) Whether the lower Court can make counter-facts for a respondent as the claimant before it or substitute a step in previous adjournment for a differently deserving instance to arrive at its Ruling and or grant in whatever way a relief not claimed by any party before it as made in the judgment of 23/5/13?
(iii) Whether the lower Court can in
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any whatever way foreclose the right of the Appellants to Appeal?
(iv) Whether in the circumstances and facts of this Suit the lower Court had adhered to the fair hearing?s concept of audi alterem partem in arriving at its Ruling and Judgment of 23/5/13 and same should not be wholly set aside by this Honourable Court for its impropriety and Constitutional breaches against the Appellants?
The respondent in her brief of argument framed the respondents issue for determination as follows (however couched)
(i) ?Whether the defendants/counter-claimant was diligent as expected of him using a reasonably man standard, in prosecuting their defence and counter-claim in this matter, to warrant them now to complain that they were denied fair-hearing?.
(ii) ?Whether the Court making an order that 3rd defendant shall deliver possession of the aforesaid land in dispute to the claimant forthwith, in line with leg F of her further amended statement of claims amount to foreclosure of defendants? right to appeal?.
Resolution of Issue 1 of Ground 1
As the trial judge observed in the judgment the last
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appearance of the defendant/appellant was on 24/4/12. From that date 24/4/12, the matter was adjourned to 6/6/2012.
On 6/6/12, the Court recorded parties as absent, case is further adjourned for continuation of hearing to Wednesday 12/12/12.
By the record of the Court, hearing commenced on 15th February, 2012 the Court recorded as follows:
?Only the Claimant present Writ Salako for Claimant?
Nothing whatsoever was said of the defendants and service of hearing notice.
Before this date 15th February, 2012 that hearing commenced the Court?s recording on the record for 9th May, 2011 is as follows:
COURT NOT SITTING, HIS LORDSHIP ON NATIONAL ASSIGNMENT.
NOTE; HIS LORDSHIP WAS ON NATIONAL ASSIGNMENT FOR THE REST OF THE YEAR AND THIS MATTER COULD NOT BE HEARD AGAIN TILL 15/2/2012 HEARING OPENED.
From 9th of May, 2011 to 15th February, 2012 was a period of about nine months. In nine months, even the most diligent litigant could lose track of a case there was need for fresh hearing notice to the parties especially when it was not shown that parties were present on the 9th of May 2011 when the declaration that
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the Court was on National assignment was made. Parties were not shown to be present. This in my view, makes it mandatory for fresh hearing notice to be issued for commencement of hearing.
It also behooves the trial Court before commencing hearing behind the back of the defendant (appellants) to ensure that the defendants had notice of hearing (after nine months of Court not sitting). This minimal procedural safeguard was not taken. Instead, after being away for nine months, the Court resumed on 15/2/2012 in the absence of defendants and without ensuring the defendants had notice of its resumption declared ?HEARING OPENS?. This is a breach of a Procedural Safeguard for fair hearing.
Fair hearing, besides the constitutional endorsement in Section 36 of the 1999 Constitution of Nigeria, is a rule of natural justice of great antiquity. It prescribes an unwavering rule that is both procedural and substantive that parties must be given equal opportunity or advantage in the presentation of their cases. The application of the principle of fair hearing is invariably objective and never in the subjective contemplation of the judex. The test of fair
9
hearing being the impression of a reasonable person who was present at the trial whether, from his observation, justice has been done. P.A.I.I. & 2 Ors. vs. Shoreline
