ALHAJI ALIYU ABDU v. ALHAJI ALIYU MUSTAPHA & ANOR
(2018)LCN/12180(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 28th day of November, 2018
CA/K/227/2016
RATIO
FUNDAMENTAL RIGHT: RIGHT TO FAIR HEARING
“The right to fair hearing is provided for all, the plaintiff, the defendant, the appellant, the respondents and indeed the Court and the Society at large. This preposition has been enhanced by the exposition of the principle of law in the case of Newswatch Comm. Ltd v. Atta supra P. 584, wherein the Apex Court stated that: ‘The constitutional principle of fair hearing is for the both parties. In other words, fair hearing is not a one-way traffic but a two way traffic in the sense that it must satisfy a dual carriage way, in the context of both the plaintiff and the defendant or both the appellant and the respondent. The Court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly that will not be justice. That will be injustice.’ The issue of fair hearing holds a formidable position in the eyes of the law. This is because the consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void. See S.A.P Ltd v. Min. of Petroleum Resources (2018) 8 NWLR (Pt. 1616) P. 391 @ 407.” PER IBRAHIM SHATA BDLIYA, J.C.A.
JUSTICES:
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYA Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
ALHAJI ALIYU ABDU – Appellant(s)
AND
1. ALHAJI ALIYU MUSTAPHA
2. FEDERAL HOUSING AUTHORITY – Respondent(s)
IBRAHIM SHATA BDLIYA, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the Kano State High Court (the lower Court) in suit No. K/2-9/2011, delivered on the 28th day of May, 2015, by NURA SAGIR UMAR, J. Dissatisfied with the judgment, the appellant appealed to this Court by filing a Notice of appeal which was amended and filed on the 4th of January 2018 but deemed properly filed on the 16th of January, 2018.
The appellants amended brief of argument was filed on the 4th day of January 2018, out of time, and same was deemed properly filed on the 16th day of January 2018, containing five (5) issues for determination, on page 2 thereof. The 1st respondents brief of argument was filed on the 17th day of April, 2018, with 5 issues for determination culled from the grounds of appeal on page 3 thereof. The issues for determination contained in the appellants and the 1st respondents briefs of argument are intertwined, interwoven and dovetailing, such that one set of issues can hardly be resolved without delving into the others. For the forgoing reason, the 5 issues contained in the appellants amended brief of arguments are hereunder compressed into 3 issues to be resolved in the determination of the Appeal. The three issues for determination are therefore, these:
(a) Whether or not the hearing of the 1st respondents counter-claim on the 25th of February 2015 without issuance and service of hearing notice on the appellant was outside the jurisdiction of the Court and amounted to a denial of fair hearing which occasioned a miscarriage of justice.
(b) Whether or not the learned trial Judge ought to have adjourned the 1st respondents counter-claim to another date for cross examination after hearing DW1s evidence in Chief.
(c) Whether or not the failure of the learned trial Judge to hear and determine the application of the appellant dated 18th May 2015 before entering judgment amounted to a denial of fair hearing which occasioned a miscarriage of justice.
ISSUE 1
Oluwafemi Adebayo Esq., who settled the appellants brief of argument did submit that the learned Judge of the lower Court adjudicated on the counter-claim of the respondent when the appellant was not served with a hearing notice on the 25th of February, 2015. Learned counsel referred to the proceedings of the lower Court conducted between the 22nd of January and 25th of February as recorded on pages 40-45 of the printed record of appeal to buttress the submission supra. That on the 25th of February 2015, the lower Court reserved judgment which was delivered on the 9th of April, 2015, without issuing and serving the appellant with hearing notice, therefor.
It is learned counsels contention that to hear and determine a suit where one of the parties was not served with a hearing notice breached the rule of natural justice of fair hearing. That without the issuance and service of hearing notice on any of the parties to the dispute, the lower Court had no jurisdiction in adjudicating over the dispute between the parties thereto. Learned counsel further canvassed that where a party to a dispute before a Court of law was absent on a particular date, and the suit was adjourned for hearing to a future date, a hearing notice ought to be issued and served on him for the hearing of the suit on the adjourned date.
The principle of law espoused by the Apex Court and this Court in the cases of A. G. Rivers State v. Ude & 12 Ors. (2006) 6-7 S.C P. 131 @ 142; and Wema Bank v. OdulajA (2000) 3 SCNJ P. 64 @ 69 were cited and relied on to reinforce the submissions supra. Learned counsel therefore did urge that issue 1 be resolved in favour of the appellant.
For the respondent, A. B. Kura Esq., of learned counsel, who settled the brief of argument, did contend that the appellant was afforded the opportunity to appear in Court to defend the counter-claim but he deliberately and or intentionally refused to be in Court on the days slated for the hearing of the case. That the appellant knew of the hearing dates of the case at the lower Court but refused to be present as could be gleaned on pages 40 -45 of the printed record of appeal, wherein the proceedings of the Court were recorded, by the learned trial Judge. Counsel further pointed out that once the preliminaries of a case were completed, that is, service of the Writ and entry of appearance by the parties, it is the duty of counsel or the parties to find out the date fixed for the hearing of the case.
That is not the duty of the Court to inform them of the hearing date. The principle of law enunciated in the cases of Afonja Comm. Bank (Nig) Ltd v. M. Akpan (2003) All FWLR P. 146; Aina v. Obabiolorunkosi (1986) 2 NWLR (Pt. 22) P. 316, were referred to in reinforcement of the submissions supra.
Furthermore, learned counsel cited and relied on the case of S & D Const. Ltd. v. Chief Bayo Ayoku & Ors. (2011) LPELR 2965 (SC) to buttress the point being made, that is, that parties are presumed to know the date for hearing of a matter after the completion of preliminary issues, therefore, there is no requirement to effect service of hearing notice by them. That they are deemed to be aware of the date of hearing or they are deemed to have been aware of the date for the hearing of the case. Learned counsel referred to pages 10 -11 of the supplementary record of appeal to reinforce his contention that the appellant knew of the hearing dates, but willfully absented himself from the Court on the dates the counter-claim of the respondent was heard and granted.
Learned counsel did submit that the doctrine of fair hearing is not for the weakling, the slumbered, the indolent or the lazy litigant.
That a party to a suit before a Court of law must be alert and alive to take advantage of being heard by the Court. That where parties were notified of the date for the hearing of the case, any party that refuses to be in Court cannot be heard to complain of lack of fair hearing. The principle of law propounded in the cases of Military Governor, Lagos State v. Adeyiga (2001) FWLR (Pt. 83) P. 2137 @ 2155; Newswatch Comm. Ltd v. Atta (2006) 12 NWLR (Pt. 993) P. 144 @ 171 and Obimiami Brick & Stone (Nig.) Ltd. v. ACB Ltd. (1992) 3 NWLR (Pt. 229) P. 260 were cited and relied on to reinforce the submissions supra. Concluding, learned counsel did contend that where a party to a litigation before a Court of law is aware of the hearing date, but refused to appear in Court, he cannot complain of lack of fair hearing even if the Court proceeded with the matter in his absence. The case of INEC v. Azudibia (2010) All FWLR (Pt. 505) P. 1684, was cited and relied on to buttress the point canvassed supra. This Court has been urged to resolve issue 1 against the appellant.
I think, it is pertinent, at this juncture, to have recourse to the proceedings of the lower Court in respect of the counter-claim, in order to find if the appellant was served with hearing notices for all the days the proceedings were conducted. On page 11 of the supplementary record of appeal, the proceedings conducted on the 9th of July, 2013 were recorded. These are the proceedings:
The plaintiffs claim stands struck out.
Ahmed – We want to date to prove our counter-claim.
Court – Case is adjourned to 17/10/13 for proof of defendant’s counter-claim.
The lower Court did not sit, until the 17th day of June, 2014 as recorded on page 40 of the printed record of appeal. The Court did not order that hearing notice be issued and served on the appellant (as plaintiff) or defendant to the counter-claim. The Court then adjourned the matter to 16th of July 2014 for mention. It made an order that hearing notice be issued and served on the appellant. The proceedings are as follows:
Court: Case is refixed for further mention on 16/7/2014. Hearing notice to be served on counsel to the plaintiff Mohd Umar & Co.
The lower Court did not sit on the 16th of July 2014 until on the 15th of December, 2014. The appellant was not in Court. The Court did not find out if he was served with hearing notice. The learned Judge of the lower Court recorded the proceedings of 16th July on 2014 as follows:
Court: Case is fixed for proof of the 1st defendants counter claim on 22/1/2015. Hearing notice to be issued to the plaintiff through his counsel.”
The lower Court did not sit on the 22nd day of January 2015, it however sat on the 25th of February 2015. The Court did not confirm if the appellant was served with a hearing notice as ordered at the last sitting, that is on the 15/12/14. On the 25th of February 2015, the lower Court called upon the respondent to adduce evidence to prove the counter-claim. The proceedings conducted on the 25/12/15 have been recorded on pages 41-45 of the record of appeal. The Court did not find out if the appellant was served with hearing notice as ordered on the 15th day of December, 2014. The respondent called a witness who testified as DW1. After giving evidence he was discharged by the Court. The Court then adjourned to 9th day of April, 2015, for judgment. On the 9th of April 2015, the judgment was delivered, and the counter-claim was adjudged in favour of the respondent. It is necessary to point out that there was no service of hearing notice for the proceedings of 25/2/15 on the appellant. He was not in Court on the 9th of April 2015, when the Court delivered its judgment.
From the foregoing summation, it is crystally clear that there was no hearing notice issued and served on the appellant for the proceedings so conducted on the 17th of June, 2014; 16th of July 2014; 15th of December, 2014; 22nd of January 2015; 25th of February 2015 and 9th of April 2015. It is to be noted that there were no affidavits of service proving service of the hearing notices on the appellant, if at all he was served with same. The only conclusion to be arrived at, in the circumstances, is that there were no hearing notices that were issued and served on the appellant as aforesaid. Section 36(1) of the 1999 Constitution (Amended) provides:
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.”
In A. G. Rivers State v. Ude & 12 Ors (2006) 6-7 S.C. Page 131 @ 142, Musdapher J.S.C (as he then was) of blessed memory, had this to say on the need to observe a litigants right to fair hearing in the determination of his rights and or obligations; thus:
Now fairness is the determining factor for the application of principles of natural justice. In other words, natural justice is fair play in action. See Ex parte Obiyan (1973) 12 S.C 21. A hearing of matter in Court cannot be said to be fair if any of the parties appearing before the Court is refused a hearing or is denied the opportunity to be heard or present his case or call evidence: See for example Governor, Imo State v. Nwauwa (1997) 2 NWLR (Pt. 490) 675.
The right to fair hearing is a fundamental constitutional right guaranteed by the Constitution of the Federal Republic of Nigeria adjudications vitiates the proceedings rendering the same null and void and of no effect. Any judgment which is given without due compliance and which has breached fundamental right of fair hearing is a nullity and is capable of being set aside either by the Court that gave it or by an appellate Court. See Bamgboye v. University of Ilorin (1999) 6 S.C (Pt. 11) 72; (1999)10 NWLR (Pt. 622) 290 Deduwa v. Okorodudu (1976) 9-10 S.C (Reprint) 207; (1976) 9-10 S.C 392; Amadi v. Aplin (1972) 4 S.C. (Reprint) 205; (1972) 4 S.C. 228; Sadu v. Kadir (1956) 1 FSC 39-41.
The learned Justice went on to state on page 143 of the case supra, thus:
But it must be emphasized that failure to serve a hearing notice where the service of hearing notice is required renders null and void any order made against the party who should have been served with the process. See Madukolu v. Nkemdilim (1062) 2 SC NLR 31. Again, where a Court adjourns a case beyond the date when the litigants have notice of the hearing of the case, the Court has a duty to notify the parties of the subsequent adjournment. Whenever the Court adjourns a matter for want of service, the adjourned date should be endorsed on the process and fresh service attempted unless it be shown that hearing notice and the service thereof has been effected before the adjournment.
Muhammed, J.S.C, expressed similar view in the case of Wema Bank Plc v. Odulaja (2000) 3 SCNJ P. 64 @ 69 as follows:
Failure to give notice of proceedings to an opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void because the Court has no jurisdiction to entertain it.
See Obimonure v. Erinosho (1966) 1 All N.L.R 250.
Learned counsel to the 1st respondent cited and relied on the principle of law espoused in the cases of Afonja Community Bank (Nig.) Ltd v. Akpan (2003) All FWLR (Pt. 146); Aina v. Obabiolorunkosi (1986) 2 NWLR (Pt. 22) P. 316; S & D Const. Ltd v. Chief Ayoku & Ors (2011) LPELR 2965(SC); Azudibia v. INEC (2010) All FWLR P. 1684; and did submit on page 7 of the 1st respondents brief of argument that:
We humbly submit that fair hearing principle formerly entrenched in Section 33 of the 1979 Constitution is not for the weakling, the slumbered, the indolent or the lazy litigants but it is for the party kicking who is alive and kicking in the judicial process by taking advantage of the principle. It is a trite law that fair hearing is a constitutional right which is highly protected and if any party to a proceeding is refused and/or denied the opportunity to, present his case or call witness, cannot be said or called a fair hearing vitiate such proceeding rendering same null and void.”
Learned counsel in furtherance of the submissions supra, cited and relied on the principle of law enunciated in case of Newswatch Communications Ltd v. Atta (2006) All FWLR (Pt. 318) P. 584 @ 6; where TOBI, JSC, (of blessed memory) propounded that:
Its the duty of the Court to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the Court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turn around to accuse the Court to denying him fair hearing. That is not fair to the Court and the counsel must not instigate his client to accuse the Court of denying him fair hearing.
A trial Judge can indulge party in the judicial process for some time but not for all the time.
Again, in Azudibia v. INEC (2010) All FWLR (Pt. 505) P. 1684, it was held that:
Where a party is given ample opportunity to present his case within the confines of the law, but he chooses not to utilize same he cannot later be heard to complain that his right to fair hearing has been breached.”
But, in the instant appeal at hand, there were no proof of service of hearing notices on the appellant to warrant the application of the principle of law espoused in the case of Newswatch Communications Ltd v. Atta and Azudibia v. INEC supra as contended by learned counsel to the appellant. This is so because, as found earlier in this judgment, the appellant was not served with hearing notices for the proceedings conducted by the lower Court on the 17th day of June, 2014; 16th of January 2015, 25th of February 2015, 9th of April, 2015.
The right to fair hearing is provided for all, the plaintiff, the defendant, the appellant, the respondents and indeed the Court and the Society at large. This preposition has been enhanced by the exposition of the principle of law in the case of Newswatch Comm. Ltd v. Atta supra P. 584, wherein the Apex Court stated that:
The constitutional principle of fair hearing is for the both parties. In other words, fair hearing is not a one-way traffic but a two way traffic in the sense that it must satisfy a dual carriage way, in the context of both the plaintiff and the defendant or both the appellant and the respondent. The Court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly that will not be justice. That will be injustice.”
The issue of fair hearing holds a formidable position in the eyes of the law. This is because the consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void. See S.A.P Ltd v. Min. of Petroleum Resources (2018) 8 NWLR (Pt. 1616) P. 391 @ 407.
If the principle of natural justice is violated, it does not matter whether had the proper thing been done, the decision would have been the same. The proceedings so conducted will still be null and void. In other words, if the principles of natural justice are violated in respect of any proceedings or decision, it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision. So, a breach of fair hearing strikes deeply at the very roots of a trial. See Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23; Adigun v. A. G. Oyo State (1987) 1 NWLR (Pt. 53) 678 referred to.
The appellants right to fair hearing was breached by the lower Court when the proceedings of the lower Court were conducted on the 17th of June, 2014, 16th of January, 2015, 25th of February 2015 and 9th of April, 2015 when hearing notices were not issued and served on him. Once a person shows that there is an infringement of the principle of natural justice against him, he needs show nothing more. The finding that there is an infringement of the principle is sufficient to grant him a remedy. In effect, the injuria is proof-positive of damnum. In the instant case, the violation of the appellants right to fair hearing was enough to grant him a remedy.
He does not need to show that the decision would have been different if he had been heard on the counter-claim. See Adigun v. A. G. Oyo State (1987) 1 NWLR (Pt. 53) 678; Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23. In the result, I resolve issue 1 in favour of the appellant.
ISSUE 2
On this issue, Kura Esq., of learned counsel to the appellant, did submit that on the 25th of February 2015, the lower Court took the evidence of one witness who testified as DW1 to prove the counter-claim of the respondent. That the appellant was not in Court and he was not represented by a counsel. Learned counsel did contend that it was wrong for the lower Court to have discharged DW3, after his testimony, without giving the appellant an opportunity to cross-examine the witness.
Learned counsel referred to the proceedings that were conducted on the 25th of February, 2015 to reinforce his submission that the lower Court discharged the witness without calling upon the appellant to cross-examined him. It is learned counsels further contention that it is only the appellant that can waive the right to cross-examine the witness after having an opportunity to do so.
The case of Igomu v. Ojochide Ibrahim (2014) All FWLR (Pt. 719) P. 1162 @ 1175, cited to buttress the submission that a party in a litigation before a Court of law has a right to cross-examine any witness that testified in the matter before the Court. Concluding, learned counsel adumbrated that the discharge of the witness, DW1 when the appellant was not in Court to cross-examine him tantamount to a denial of fair hearing. Learned counsel urged that issue 2 be resolved in favour of the appellant.
For the respondent, G.D. Ahmad Esq., contended that the lower Court was right when he adjourned the hearing of the case to the 25th of February 2015 after the testimony of the witness, DW1. That the appellant was given adequate opportunity to appear in Court, but he did not, on his own volition. The provisions of Order 2 Rule 3 of the Kano State High Court Civil Procedure, Rules, 2011 was cited and relied on to reinforce the point that judgment can be entered in favour of the respondent, in the absence of the appellant who absented himself from the Court on the 25th of February, 2015. Counsel further pointed out that the import and purport of the law, is that, a party who fails to avail himself to the opportunity given to him to be in Court, but failed to do so, cannot complain of breach of fair hearing as enunciated in the case of Newswatch Comm. Ltd v. Atta (2006) All FWLR (Pt. 318) P. 584. This Court has been urged to resolve issue 2, against the appellant.
On the 15th day of December 2014, the lower Court adjourned the hearing of the counter-claim to the 25th day of February 2015, with an order that hearing notice be issued and served on the appellant as recorded on page 41 of the printed record of appeal thus:
Court: Case is fixed for proof of the 1st defendants counter-claim on 22/1/2015. Hearing notice to be issued to the plaintiff through his counsel.
On the 25th day of February 2015, the 1st respondent, Alhaji Aliyu Mustapha testified as DW1. After his testimony the Court discharged him without making an order calling on the appellant to ascertain whether he would like to cross-examine the witness or not. More importantly, the Court did not find out or enquire whether the appellant was served with hearing notice as ordered on the 15th day of December, 2014.
It was the duty of the lower Court to have enquired if the Order of 15/12/14 was carried out or not before proceeding to take the evidence of DW1. It is not in dispute that at the previous hearing date, the appellant was not in Court, therefore, he was not aware or could not have been aware of the hearing of the case on the 25th of February 2015.
The law is trite, as pointed out in Igomu v. Ojochide Ibrahim (2014) All FWLR (Pt. 719) P. 1162) @ 1175, that:
By virtue of Section 215 of the Evidence Act 2011, cross examination is a right available to parties in litigation. Thus, where a right to cross examination is taken away for whatever reason it amounts to a breach of fair hearing and fair trial and any judgment arising from that proceeding will be perverse and will amount to a nullity, having breached the rules of natural justice which is enshrined in Section 36(1) of the Constitution and must consequently be set aside. See also Ifeanyi v. INEC (2009) 38 WRN 154.”
In my opinion, the provisions of Order 30 Rule 3 of the Kano State High Court (Civil Procedure) Rules, 2011, which provides, thus:
“When a cause is called for hearing if the defendant appears and the plaintiff does not appears, the defendant, if he has no counter-claim shall be entitled to judgment dismissing the action but if he has a counter claim, then he may prove such counter claim, so fare as the burden of proof lies upon him
applies only when the other party who is complaining that the proceedings were conducted in his absence was put on notice having been served with a hearing notice. In the extant situation, the appellant was not served with hearing notice as ordered by the Court on the 15th day of December, 2014, to be in Court for the proceedings of 25th of February 2015. The principle of law espoused in the case of Azudibia v.INEC (2010) All FWLR (Pt. 505) P. 1684 that a party who has been offered adequate opportunity to be in Court to present his case cannot complain of lack of fair hearing is not applicable. I therefore resolve issue 2 in favour of the appellant, that is, the denial of his right to cross-examine the witness, DW1, on the 25/2/15 tantamount to a breach of his right to fair hearing in the matter before the lower Court.
ISSUE 3
Learned counsel to the appellant referred to a Motion on Notice filed on the 18th day of May, 2015, which was earlier in time to the 28th of May, 2015, the date the judgment of the lower Court was delivered. It is his contention that the lower Court ought to have disposed off the motion on notice before the delivery of the judgment on the 28th of May, 2015. That the doctrine of fair hearing demands that any pending motion/application before the Court ought to be determined before judgment is delivered. The principle of law enunciated in Nalsa Team Associates v. NNPC (1991) 11-12 SC P. 83 @ 104 was cited and relied on to buttress the submissions supra. The case of Milkyway Investment (Nig.) Ltd v. Usman (2014) All FWLR (Pt. 758) P. 848 @ 866 was cited and relied on to reinforce the submission that all parties before a Court of law must be afforded the opportunity to be heard on any pending application before final determination of the dispute.
Learned counsel contended that the failure of the lower Court to hear and dispose off the application filed on the 18th of May, 2015, before delivery of the judgment on the 28th of May, 2015, before delivery of the judgment on the 28th of May, 2015 is a breach of the appellants right to fair hearing. This Court has been urged to resolve issue 3 in favour of the appellant.
For the 1st respondent, A. D. Ahmad Esq., did submit that the application by the appellant filed on the 18th of May 2015, was meant or intended to arrest the delivery of the judgment on the 28th of May, 2015. That, the lower Court was right in delivering the judgment on the 18th of May 2015, in that the law does not allow the arrest of the delivery of a judgment which had been reserved. That to do so would tantamount to an abuse of Court Process as enunciated in the case of Newswatch Comm. Ltd v. Atta (2006) 12 NWLR (Pt. 993) P. 144 @ 179.
Submitting further, learned counsel pointed out that the appellant has had ample opportunity to present his case but neglected to do so, therefore, the issue of breach of fair hearing cannot arise in the circumstances. In conclusion, learned counsel urged that issue 3 be resolved against the appellant.
It is to be noted that on the 22nd of January, 2015, the lower Court made an order that hearing notice be issued and served on the appellant in respect of the counter-claim which was adjourned to 25th day of February, 2015 for hearing.
There is nothing in the record of proceedings conducted on the 25th of February, 2015 showing that the order was complied with or carried out. The lower Court did not enquire if the appellant was served with the hearing notice as ordered. The Court just proceeded to the hearing of the evidence of the witness. For clarity, the portion of the proceedings conducted on 15-12-14 and 25-1-15 are reproduced hereunder:
The Proceedings of 15-12-14
2nd & 3rd defendants: Absent Unrepresented.
Mr. Gazali Datti Ahmed for 1st defendant.
Mr. Ahmed: We are applying for a date to prove our counter claim.
Court: Case is fixed for proof of the 1st defendants counter claim on 22/1/2015. Hearing notice to be issued to the plaintiff through his counsel. (Underlining mine)
The Proceedings of 25-2-15
Parties: Absent
Mr. Gazali Datti Ahmed with Usman Musa Ibrahim for 1st defendant.
Plaintiff: Absent and unrepresented.
Mr. Ahmed: This case is fixed for proof. We are ready of the counter claim, of the 1st defendant.
Court: Proceed.
From the foregoing proceedings of the lower Court, there was no proof of the service of hearing notice on the appellant. The lower Court did not ascertain if the order made on the 25-12- 14 was carried out as directed. So also the order made on the 25- 2-15. The lower Court just went on to hear the case of the 1st respondent without ascertaining if the appellant was served with the hearing notice as ordered on the previous sittings of the Court. The appellant was not given the opportunity to be in Court on the 25-2-15 in that he was not notified of the hearing date.
It must be noted that as at 28-5-2015 when the judge of the lower Court delivered the judgment, the application of the appellant for an order to be heard thereon was before the Court. That application can be found on pages 162-168 of the printed record of appeal. The application prayed the Court thus:
1. AN ORDER setting (sic) aside the Court order adjourning the matter for judgment on the 1st Defendants counter claim in default of plaintiff appearance.
2. AN ORDER allowing the Plaintiff to defend the counter claim of the 1st Defendant.
3. Such further order(s) that this Honourable Court may deem fit to make in the circumstances of this case…
The law is trite, any pending application before the Court in the matter between the parties thereto, must be determined, before judgment. This preposition of the principle of law has been espoused in the case of Nalsa Team Associates v. NNPC (1991) 11-12 SC P. 83 @ 104, thus:
It is an elementary and fundamental principle of our administration of justice to hear all applications properly brought before our Courts. Accordingly, where an application is properly brought before the Court the principle of fair hearing demands that it should be heard on its merits.- See Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587 SC.
That the failure of a Court of law to hear and dispose off any pending application before it, which is related to the matter in dispute, is a breach of the doctrine of fair hearing, has the support in the case of Milkyway Investment (Nig) Ltd. v. Usman (2014) ALL FWLR (Pt. 758) P. 848, wherein, this Court held that:
The hearing of a matter in Court cannot be said to be fair if any of the parties appearing before the Court is refused a hearing or is denied the opportunity to be heard or present his case or call evidence: Ologunleko v. Oguneyehun (2008) 1 NWLR (Pt. 1068) 397 @ 404. To this extent, it is trite that a Court and indeed a Court of equity must take, hear and rule on every application before it, Nalsa and Team Associates v. NNPC (1991) 1 SCNJ 5, (1991) 7 NWLR (Pt. 212) 652, Oteju v. Magma Maritime Services Ltd (2010) 1 NWLR (640) 331; Dingyadi v. INEC (No. 1) (2010) ALL FWLR (Pt. 550) 1204) (2010) 18 NWLR (Pt. 1224) 1 @ pages 52-53.”
The Court went further to hold thus, on page 53:
A Court has no discretion to decline hearing any application without giving the parties the opportunity to be heard on such applications. I have carefully studied the proceedings of the lower Court on the 10th October, 2011 as well as other proceedings of the lower Court as contained on the record of appeal. I am unable to locate where the lower Court gave the appellants opportunity to move their notice of preliminary objection dated 20th June, 2011 before proceeding to strike out same for non-diligent prosecution.”
The printed record of appeal, when examined thoroughly, clearly reveals that the appellant was not offered the opportunity to move the motion on notice filed on the 18th of May, 2015. Therefore, the failure of the lower Court to hear and determine the motion on notice filed on the 18th of May, 2018 is a denial of fair hearing to the appellant. Issue 3 is resolved in favour of the appellant.
Having resolved the 3 Issues in favour of the appellant, the appeal succeeds. The judgment of the lower Court in Suit No. K/209/2011, delivered on the 28th day of May, 2015, in respect of the counter-claim is hereby set aside. I make no order as to costs.
UWANI MUSA ABBA AJI, J.C.A.: I read in draft, lead judgment of my learned brother, Ibrahim Shata Bdliya, JCA, just delivered.
I agree completely with the reasoning and conclusions arrived at by my learned brother that the appeal is meritorious and ought to be allowed. For the reasons therein stated which I adopt as mine, I too, allow the appeal.
The judgment of the lower Court delivered on the 28th May, 2015 in respect of the counter claim is hereby set aside.
JAMES GAMBO ABUNDAGA, J.C.A.: I have been privileged to read before now, the lead judgment delivered by my learned brother, Ibrahim Shata Bdliya, JCA.
I am in agreement with him on the conclusions reached on all the issues treated, and that the judgment of the lower Court be set aside and indeed set aside.
I abide by his consequential order as to costs.
Appearances:
Oluwafemi Adebayo Esq. For Appellant(s)
No Appearance for the Respondents For Respondent(s)
