ALHAJI AUWALU DARMA vs. ECO BANK NIGERIA LIMITED (2017)

ALHAJI AUWALU DARMA v. ECO BANK NIGERIA LIMITED

In The Supreme Court of Nigeria

On Friday, the 17th day of February, 2017

SC.20/2005

 

JUSTICES

OLABODE RHODES-VIVOUR    Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD    Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI    Justice of The Supreme Court of Nigeria

CHIMA CENTUS NWEZE    Justice of The Supreme Court of Nigeria

AMIRU SANUSI    Justice of The Supreme Court of Nigeria

Between

 

ALHAJI AUWALU DARMA  Appellant(s)

AND

ECO BANK NIGERIA LIMITED  Respondent(s)

AMIRU SANUSI, J.S.C. (Delivering the Leading Judgment):  This appeal is against the judgment of the Court of Appeal, Kaduna division delivered on 15th July 2004 which dismissed the appeal filed before it by the appellant against the decision of High Court of Justice of Kano State delivered on 9th June 2001 which entered Judgment against the respondent under the Undefended list Procedure on the sum of one million, three hundred and ninety five thousand, five hundred and seventy nine Naira eighty one kobo (N1,395,579;81k)

The present respondent as plaintiff sued the appellant under the undefended list procedure at the High Court of Kano State (the trial Court) claiming the above mentioned sum being outstanding balance (as at the 30th of April 1999) of an overdraft facility approved in favour of the appellant by the respondent bank. Upon being served with the Court process, the plaintiff/appellant filed notice of intention to contest the claim by filling a seven paragraph affidavit. At the commencement of the trial the appellant admitted liability to the tune of three hundred thousand Naira N300,000) only and the trial Court

 

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thereupon entered judgment against the appellant on the sum admitted by the plaintiff/appellant and it thereafter transferred the suit to the general cause list with regard to the outstanding balance and adjourned the matter for hearing and ordered Parties to file their respective pleadings.

Subsequently, the trial High Court granted several adjournments due to the absence of the defendant, now appellant the case then adjourned to 19th June 2001 and on that day the appellant was not in Court or represented by a counsel hence the respondent upon proof that hearing notice was served on him appealed to the trial Court to enter judgment in its favour in respect of the amount outstanding against him (the appellant) and the trial Court obliged and entered Judgment on the outstanding sum of N1,398,589:81k against the plaintiff/appellant with 10% interest from the date of Judgment until full liquidation of the Judgment sum.

Aggrieved by the decision of the trial High Court, the defendant (now appellant)

 

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appealed to the Court of Appeal Kaduna division (the Court below) which dismissed his appeal. The appellant still dissatisfied with the Judgment of the Court below, has now appealed to this Court vide notice of appeal dated 24th of August 2004.

Briefs of argument were filed and exchanged by Parties and later amended by them with leave of this Court to reflect the new name of the respondent, that is to say from Oceanic Bank International Nigeria which was its former name, to its present name i.e Eco Bank Nigeria Limited. In its amended Appellant’s brief of argument settled by one Adam Abubakar Esq the appellant proposed two issues for the determination of this appeal as set out below.
1. Whether the learned Justices of the Court of Appeal did properly and Judiciously stated (sic) the law on the facts when they held that Section 294 of the Constitution of the Federal Republic of Nigeria 1999, Order 37 Rules 11, 12 and 13 of the Kano State High Court (Civil Procedure) Rules 1988 relied upon by the Appellant were irrelevant in arriving at a decision that a denial of fair hearing has been occasioned.
2. Whether the learned justices of the Court

 

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of Appeal did properly and judiciously treated, and considered (sic) all the issues raised by the appellant in this brief of argument on their judgment.

On its Part, the respondent in its amended Brief of argument also raised two issues for determination which read as below:-
(a) whether the learned Justices of the lower Court properly held that Section 294(1) of the 1999 Constitution and Order 37 Rules 11, 12 and 13 of the Kano State High Court (civil Procedure) Rules 1988 relied on by the Appellant were irrelevant in arriving at its decision that the appellant was accorded a fair hearing by the trial Court before Judgment was entered against him on the 19th June 2001
(b) Whether Ground no 3 of the Appellant’s notice of Appeal is competent and if so whether the learned Justice of the lower Court properly considered the issues distilled (sic) from the grounds (sic) of appeal when they dismissed the on 15th July, 2004.

Looking at the two sets of issues proposed by the parties, it is clear that Issue No 1 raised by the appellant is very much similar to corresponding issue No I raised by the respondent in the latter’s brief of argument.

 

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At any rate, I will consider this appeal on the guidance of the issues raised in the appellants brief and in doing so I will consider the two issues together

In his submissions on the first issue the learned appellant’s counsel argued that having regard to Section 294 (1) of the 1999 Constitution and Order 37 Rules 11, 12 and 13 of the High Court (Civil Procedure) Rules 1988 of Kano State, the Appellant has right to address the Court, call evidence and which said right was Constitutional and statutory. The said right can not be denied him as was done by the trial Court in this instant case. He said the appellant was never aware of the evidence given against him because Judgment was based on the evidence and he was not afforded the opportunity of cross examining the said PW1.

Learned appellant’s counsel further submitted that the procedure adopted by the trial Court had occasioned him miscarriage of Justice and had breached the provisions of Section 36 of the 1999 Constitution (as amended) since his right to address the trial Court was denied him and therefore he was denied fair hearing which was further aggravated by the delivery of judgment of

 

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19th June 2010, a date on which the matter was not fixed for hearing of the matter. He further submitted that date meant or given by the Court for hearing of a matter should not be turned into a date for delivering of Judgment. He added that the lower Court was wrong to have affirmed the trial Court’s Judgment. He urged this Court to resolve this issue in favour of the appellant.

With regard to the second issue for determination, the learned counsel for the appellant referred to Page 49 of the printed record and stated that the discretion exercised by the trial Court was because the appellant was accorded several indulgences but he refused to make himself present during the trial despite hearing notices served on him. Some of those hearing notices as recapped by respondent’s counsel were borne out by the record include the following:-
(i) When the respondent was granted extension of time to file pleading after being ordered to file same on 29/7/1999
(ii) When this respondent did not make his witnesses available on 26/1/2000
(iii) When the Court adjourned at the instance of appellant on 23/1/2000 on the account of the appellant’s failure

 

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to comply with order to serve hearing notice on the appellant

Learned counsel in denial of the above instances argued that it was only on 19th June 2001 that the appellant was absent for the first time. He submitted that the discretion of the trial Court was not rightly exercised against the backdrop of the facts that the respondent was also accorded several indulgences in addition to the conduct of the appellant as against the background of the facts that the respondent was accorded several indulgences in relation to the conduct of the case as against the appellant whose absence from Court on the 19th June 2001 was a case of an act of inadvertence that was not condoned by the trial Court, even though the respondent’s several inadvertences were condoned. He referred to Section 36(1) of the 1999 Constitution which provides for fair hearing and argued that it is the duty of the trial Court to hear and make findings on evidence placed before it.

With regard to Section 294(1) of the 1999 Constitution (as amended) and Order 37 Rules 11, 12 and 13 of the Kano State High Court (Civil Procedure) Rule 1988, learned appellant’s counsel submitted that

 

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rights to address Court, call evidence at the conclusion of the other parties’ case, summing up the evidence already given and comment on it, are not only fundamental but constitutional and statutory. He argued that addresses by counsel form part of the case and failure to hear address of one party vitiates the trial because it is only after the addresses the Court founds the law on the issues fought not in favour of the evidence adduced. It also assists the other party to know what summing up is, on facts and the law as revealed by the evidence before the Court.

Learned appellant’s counsel further submits that the trial Court was wrong when it held that Order 37 of the Kano State High Court Rules 1988 relied upon by him were irrelevant in claiming that he was denied fair hearing or that miscarriage of Justice was occasioned on him. That is so, because he was not aware of the evidence given against him leading to the Court giving Judgment against him on the evidence of PW1 without him being given an opportunity to cross examine the respondents witness i.e. PW1. He concluded his arguments by submitting that all these lapses on the part of the

 

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trial Court conduct of the proceedings are clear examples of his being denied his Constitutional right of fair hearing and also amount to breach of fair hearing in accordance with the principle of “audi alteram partrem and Nemo judex in causa sna”

Learned appellant’s counsel opined that failure to accord any party fair hearing is fundamental omission which entitles the party so denied, the privilege against whom the judgment was entered to have such Judgment set aside on the ground that condition precedent to the exercise of Jurisdiction to enter Judgment has not been fulfilled. He cited and relied on the cases of Olumesam vs Ogundepo (1996) 2 SCNJ 185; Ayisa vs Akanji (1995)7 SCNJ 253; Mbadinuju vs Ezuka (1994) 10 SCNJ 122

He further submitted that the discretion of the trial Court was not rightly exercised against the backdrop that the Respondent was accorded several indulgences in relation to the conduct of the case as against the Appellant whose absence from Court on the 19th June, 2001 was a case of an act of inadvertence that was not condoned by the Court, even though the Respondent’s several inadvertences were condoned He referred to

 

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Section 36 (1) of the 1999 Constitution which provides for the fair hearing and argued that it is the duty of a trial Court to hear and make findings on evidence placed before it. He urged the Court to resolve this issue in favour of the Appellant and to allow the appeal.

The Respondent herein, also formulated two issues for the determination of the appeal.

In his reaction to the submissions of appellant’s counsel, the learned counsel for the Respondent argued that the appellant was accorded fair hearing before judgment was entered against him and that there was no breach of constitutional requirement of address as a condition precedent to delivery of judgment He also referred to the sequence of events as which ensued to the effect that the Appellant’s counsel failed to attend Court on the 26th January, 2000. He also referred to subsequent return date i.e 28th June, 2000, 11th December, 2000, 25th January 2001, 21st March, 2001 and 19th June, 2001. He argued that the Appellant was neither in Court nor represented by counsel on those days, He confided that prior to the time or date the suit was heard and Judgment entered, the Appellant

 

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counsel was duly served with a hearing notice and was therefore aware that the suit was to be heard on that day. He submitted that Order 37 Rule 2 allows a plaintiff (Respondent, herein), to proceed and prove its case or claim in default of appearance by the defendant and that the same Order 37 Rule 7 allows a Court to proceed and enter Judgment in favour of the party in Court after proof of his or its case

Learned respondent’s counsel argued that the Judgment of the trial Court was a default judgment since same was obtained upon default of appearance of the Appellant on the date fixed for hearing and that the lower Court took cognizance of this fact in its Judgment. He argued further, that Section 294 (1) of the 1999 Constitution merely relates to situation where both Parties are represented in Court and that the position is totally different because the Appellant was given all the opportunity of being heard, but he elected to stay away, despite being given several opportunities to appear and defend the matter consistently right from February 2000 until Judgment was entered against him after proof of the suit by plaintiff on the 19th June, 2001

 

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implying abandoning his defence. He argued that the Appellant’s reliance on Order 37 Rules 11, 12 13 of the Kano State High Court (Civil Procedure) Rules 1988 is totally misconceived as this order and Rules are only relevant in the proper course of proceeding in a suit when both parties attend Court at the trial and led evidence in proof of their respective case. He argued further, that the Appellant chose to abandon his defence by consistently absenting himself from Court for 16 months from 23rd February, 2000 to 19th June, 2001 when the judgment was finally delivered hence he cannot allege a breach of fair hearing. Fair hearing is not a one way traffic and rules of Court are designed to be obeyed to ensure substantial justice to all the parties before it He then urged the Court to resolve this issue infavour of the Respondent.

Issue no 2 relates to whether ground 3 of the Appellant’s notice of appeal is competent and if so, whether the lower Court properly considered the issues formulated from the grounds of appeal when it dismissed the appeal. He stated that this issue arose from Ground 3 filed before the Supreme Court.

The learned counsel

 

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to the Respondent submitted that ground 3 of the Appellant’s notice of appeal dated 23rd August, 2004 (pages 100-101 of the Record) did not relate to the decision and does not therefore constitute a challenge to the ratio decidendi of the lower Court’s Judgment and therefore it is incompetent. He cited the case of SARAKI VS KOTOYE (1992) 9 NWLR (Pt 264) 156. He urged the Court to hold that Ground 3 did not pose challenges to any of the ratios of the lower Court’s Judgment of 15th July, 2004. He urged that it should be struck out for being incompetent.

He argued further, that if this Court holds that ground 3 is competent, the lower Court properly considered the issues emanating from 4 grounds of appeal before them in affirming the judgment of the trial Court in the Judgment delivered on the 15th of July, 2004. He referred to page 88 of the record where the lone issue distilled by the Court is contained. He submitted that the lower Court dealt with this issue and it succeeded in resolving the entire complaints of the Appellant. He urged the Court to resolve this in favour and dismiss the Appeal.

It seems to me that the core issue in this appeal

 

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is whether the present appellant was denied fair hearing by the trial Court when it on 19th June, 2001 entered judgment against him. In his submission the appellant even conceded that hearing notice was served on his solicitor, vide Particular (C) of Ground I of his Notice of Appeal. In the said paragraph, the appellant stated thus:-
“That hearing notice supposedly from the Court registry was served on the Appellant’s solicitor’s office that the matter was adjourned to the 19th June 2001 for hearing but was unfortunately not brought to the attention of the solicitor on account of mix up occasioned by the fact that the receiving clerk was on relief duty, due to the absence of the Secretary who was away for burial

With the above admission by the Appellant, there is no dispute that he was indeed served with hearing notice through his solicitor to appear in Court or be represented on 19th June 2001 for the hearing in the case. Since the hearing notice categorically indicated that the matter was slated for hearing on 19th June 2001, it will be of no moment for the appellant to argue that the matter was heard on a date not earlier fixed for

 

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hearing.

The printed record of the Court clearly shows that even when the matter came up before the trial Court on 21st March, 2001 for hearing, the learned counsel for the plaintiff (now respondent) misled the Court that the defendant (now appellant) was not served with hearing notice which justified the latter’s absence from Court. The trial Court, the instance of the Defendant/appellant, adjourned the suit to 19th June, 2001 for hearing when it ruled as below:-
“Case is adjourned to 24/4/2001 for hearing new hearing notice to be sent to the defendant”

However, there was no other sitting held by the trial Court until on 19th June 2001. On the 19th June 2001 the defendant/appellant was absent, hence the respondents counsel informed the trial Court that the case was for hearing and that the Appellant was duly served with hearing notice. He also got leave of the Court to allow him to lead evidence in proof of his case and was so obliged by the trial Court after which the trial Court delivered its Judgment in favour of the plaintiff/respondent.

It is also the contention of the learned counsel for the appellant,

 

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that the trial Judge was wrong to have entered Judgment against him immediately after the plaintiff/respondent closed its case.

Now let us look at the provision of Order 37 Rule 2 of the Kano State High Court (Civil Procedure) Rules 1988. The rules states thus:-
“The trial Judge shall at or after trial direct judgment to be entered as he shall think right and no motion for judgment shall be necessary in order to obtain such judgment
I think from the plain and unambiguous wordings of the above quoted rule, the trial Court had jurisdiction to enter Judgment, once it is satisfied that the plaintiff had led credible evidence in proof of his or its claim without necessarily calling for filing of motion for Judgment. The procedure also does not admit for call for adjournment of the matter for any address to be delivered by counsel.

This brings me to the grouse of the appellant that by adopting this procedure, his right of fair hearing was breached or violated. The time honored principle of fair hearing has, for time immemorial, been entrenched in our laws. The cardinal principle of fair hearing are twofold (s) and are

 

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expressed in the following maxims
(a) Audi alteram Partem meaning that the Judge before whom the complaint or grouse is taken must hear the two parties to the dispute, and
(b) “Nemo Judex in cause” meaning that there should be no evidence of bias, so that one should not be a Judge in one’s own cause.
See Nospetco Oil & Gas Ltd VS Olorunimbe (2012) 10 NWLR (pt 1307) 115 or (2012) 13 WRN 108. The Constitution of the Federal Republic of Nigeria1999, as amended, had entrenched by its Section 36 the principle of fair hearing under those provisions which clearly give the criteria of fair hearing which are as follows:-
(i) That the Court shall hear both sides to a case and also must consider the case of both parties too.
(ii) That the Court must also hear all material issues before reaching its decision which may be prejudicial to any party in the case.
(iii) The Court must give equal treatment opportunity to all the Parties
(iv) That the proceedings shall be held in public and all concerned shall have access and be informed of such place of public hearing
(v) In every material decision of the case, Justice

 

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must be seen to have been manifestly done and not merely done.
See Kotoye vs CBN (2001) FWLR (Pt 49) 567.

It must however be stressed here, that the appellant who, by his own deliberate decision, mis-Judgment or inadvertence fails to avail himself of the opportunity of a hearing, he can not later be heard complaining that he was deprived fair hearing. See the case of Moses Atobatele vs Chief Dele Faseru (2013) 1 NWLR (Pt 1335) 341. As I said supra, in case, the instant case, the defendant/appellant was duly served with hearing notice to avail himself on 19th June 2001 for the hearing of the suit, but he fragrantly refused or failed to be in Court despite the hearing notice served on him and he also did not send any counsel to represent him at the hearing of the suit on the trial Court. He or his learned counsel did not also deem it appropriate to send any letter or message to the Court to inform it of his inability to be in Court to defend the suit. I am therefore in tanderm with the lower Court’s resolve to endorse or affirm the decision of the trial High Court when it entered Judgment in favour of the respondent upon being satisfied that the

 

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latter had proved its claim against the defendant/appellant.
A party, as a matter of law, should always be allowed to freely put forward his side of the case for the trial Court to consider and determine. However, that notwithstanding, a party cannot and should not complain of breach of his right of fair hearing where he refused to avail himself, as on this instant case, of the opportunity provided under the law to present his case. See Okike vs Legal Practitioners Disciplinary Committee (2005) 15 NWLR (pt 949) 471, or (2005) 7 SC (pt 111) 75; AG Rivers State vs Gregory Udo (2006) 7 SCNL 613 or (2006) 17 NWLR (pt 1008) 436; Achuzia vs Ogbonnah  (2016) 2 SC 53.

Now on the question posed by the learned counsel for the appellant as to whether the lower Court was right in holding that Section 294 of the 1999 Constitution as amended and Order 37 Rules 11, 12 and 13 of Kano State High Court (Civil Procedure) Rules 1988, were relevant, I think that point requires no dissipation of energy to answer. Considering the antecedents of this appeal. I also do not see any relevance of those provisions to the facts and surrounding circumstances of

 

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this appeal.
Section 294 (1) of the 1999 Constitution, (as amended), relates to period of 3 months it stipulated within which a trial Court should deliver Judgment after taking addresses of counsel to the parties. Such provision is therefore of no relevance to this instant appeal at time the plaintiff/respondent proved or led evidence in proof of his case, there was no defense posed by the appellant due to its default of appearance, hence the question or period for counsel to deliver their addresses does not arise. On the other hand, Order 37 Rules 11, 12 and 13 of the Kano State (Civil Procedure) Rules of 1988 merely provided procedure to be adopted by Court in process of hearing a suit instituted by a party before the High Court. The two sets of laws are therefore of no relevance to this instant case, as rightly held by the lower Court.

In the light of my discourse above, I hereby resolve the dual issues raised by the appellant against him

On the whole, this appeal is adjudged by me to be unmeritorious. It is according y dismissed by me. I affirm the Judgment of the lower Court which had also affirmed the Judgment of the

 

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trial Court.

Appeal is dismissed.

OLABODE RHODES-VIVOUR, J.S.C.: I have had the advantage of reading in draft the leading judgment of my learned brother Sanusi, JSC. I agree with his lordship that there is no merit in this appeal, but in view of the importance of fair hearing in all trials, I add a few words of my own.
The respondent as plaintiff sued the appellant as defendant at a Kano High Court under the undefended list procedure for the sum of N1,395,579.81k (One million, three hundred and ninety-five thousand, five hundred and seventy-nine naira, eighty-one kobo).
Full judgment could not be obtained under the undefended list procedure, so the case was transferred to the general cause list.
Several adjournments were granted due to the absence of the defendant in Court.
Thereafter the case was adjourned to 19 June 2001 for hearing. The plaintiff asked the Court to enter judgment in its favour since neither the defendant or his counsel was in Court. Judgment was entered in favour of the plaintiff. The issue is
Whether the Court was right to enter Judgment in the absence of the

 

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defendant

Relying on Order 37 Rule 2 of the Kano State of Nigeria High Court (Civil Procedure) Rules 1988, the Court of Appeal concluded that the trial judge was right to enter judgment on 19 June, 2001 in the absence of the defendant/appellant.
The Court of Appeal observed:
“By the service of the hearing notice on the appellant through his solicitor, the appellant was undoubtedly given an opportunity to be heard but his house was in shambles and he failed to attend Court on the said 19 June 2001 when the matter carne up for hearing…”

The well laid down position of the law is that failure to give notice of proceedings to the opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void. This is so because the Court would have no jurisdiction to entertain it. See Obimonure v Erinosho (1966) 1 ANLR p.250
Haruna v Ladeinde (1987) 4 NWLR (Pt.67) p.941
Was Hearing Notice served on the defendant for the hearing of the Case on 19 June, 2001
Hearing Notice is a document that emanates from the Registry of a Court, giving legal notification to parties in a suit the

 

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dates on which the suit would be heard.
Once a party or his counsel is served Hearing Notice they are both deemed to have actual knowledge of the date the suit would be heard, and if such a party decides to stay away from Court he does so at his own peril.
By his own admission learned counsel for the defendant/appellant admitted being served hearing notice for 19 June, 2001.
Ground 1 (c) of the Notice of Appeal reads:
“That hearing notice supposedly from the Court registry was served on the appellant’s solicitor’s office that the matter was adjourned to 19 June, 2001 for hearing but was unfortunately not brought to the attention of the solicitor on account of mix up occasioned by the fact that the receiving clerk was on relief duty, due to the absence of the secretary who was away for burial.”

I am satisfied that Hearing Notice was served on the defendant.
Was the defendant denied fair hearing

Section 36 of the Constitution guarantees every one fair hearing in our Courts.
In Isiyaku Mohammed v Kano N.A (1968) 1 ALL NLR p. 42. Ademola CJN explained fair hearing when he said:
“It has been

 

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suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case. ”
See Yusuf v. State (2011) 6-7 SC (Pt.v) p.180
Akande v State (1988) 3 NWLR (Pt.85) p.681
F.C.S.C. v Laoye (1989) 2 NWLR (Pt.106) p.652.

Order 37 Rule 2 of the Kano State of Nigeria High Court (Civil Procedure) Rules 1988 states that:
“If when a trial is called on, the plaintiff appears and the defendant does not appear, then the plaintiff may prove his claim, so far as the burden of proof lies upon him.”

Hearing Notice was served on the defendant/appellant for the hearing of this case by the trial Court on 19 June, 2011.
The defendant/appellant decided not to come to Court to defend the action. By virtue of Order 37 Rule 2 supra the plaintiff/respondent proceeded to prove his claim in the absence of the

 

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defendant/appellant. It is clear that the defendant/appellant denied himself a hearing by not coming to Court to defend the claim. The trial Court was right to enter judgment in the absence of the defendant.
For this and the more detailed reasoning in the leading judgment, I too dismiss the appeal.

MUSA DATTIJO MUHAMMAD, J.S.C.: This appeal further underscores why appeals to the Supreme Court should come only by leave of the Court. Twelve years after the appeal on such a clearly trivial issue had been filed, it is heard and determined now. Look at the injustice the system caused the appellant. The judgment sum by all means a fortune when the appellant commenced the suit, a pathetic pittance today!

My lord Sanusi JSC has, clearly stated the law on the issue the appeal raises rightly, concluded that the appeal lacks merit and that it should be dismissed. I entirely agree.

Learned appellant’s counsel is under a serious misapprehension of what the doctrine of fair hearing codified in Section 36 of the 1999 Constitution is all about. The Constitution and the law only requires that an opportunity be given

 

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to a party to present his case before a decision is taken against him. It does not allow the party the luxury of holding his adversary and the Court to ransom, to willy nilly wait for that party to come to Court when he pleases to make out his case. No! The law and the Courts give to litigants equal opportunities and failure by any of the litigants to appreciate this leads to damning consequences.
By the combined operation of Rules 2 and 7 of Order 37 of the trial Court’s adjectival law, the Court is empowered to allow the respondent prove its case and, where made out, decide against the appellant who though served and was aware of the proceedings, deliberately kept away from Court. Between 26th January 2000 and 19th June 2001, it is evident from the record of appeal, the appellant was served at least five times with hearing notices in respect of the matter. In default of appellant’s appearance in Court, judgment was handed over against him. Appellant cannot, in the circumstances, complain.
This Court per Ogunbiyi JSC in Nicholas Chukwujekwu Ukachukwu v. PDP & Ors (2014) LPELR-22115(SC) has adroitly restated the principle thus:-
The duty of

 

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the Court, trial and appellate, is 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 of denying him fair hearing. After all there is the adage that the best the owner of the horse can do is to take it to the water; he cannot horse it to drink the water.
The horse has to do that itself and by the act of sipping. If the horse is unwilling to sip, that ends the matter. The horse will not blame anybody for death arising from the lack of water”
See also Inakoju V. Adeleke (2007)4 NWLR (Pt 1025) 427 at 621-622.
In the case at hand the appellant who has himself, see the appellant’s brief, admitted being severally served with hearing notices to attend Court and trial, cannot in law assert the denial of fair hearing. See Maikyo V. Itodo (2007) 7 NWLR (Pt 1034) 443.

It is for the foregoing but more so the fuller

 

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reasons supplied in the lead judgment of my brother Amiru Sanusi JSC that I also dismiss the unmeritorious appeal and abide by the consequential orders contained in the very judgment.

CLARA BATA OGUNBIYI, J.S.C.: I read in draft the lead judgment of my learned brother Sanusi, JSC. I agree that the appeal is devoid of any merit and I dismiss same also.

The appeal at hand lays emphasis on the importance of fair hearing and which same could not be obtained the absence of adequate service by way of notice.

Judgment in this appeal was entered in favour of the plaintiff/respondent in an undefended suit. The obvious issue begging for answer therefore is:-
Whether the Court was right to enter judgment as it did in the absence of the defendant

The learned Trial judge entered Judgment in favour of the respondent in the liquidated sum of N1,398,519,81 with 10% interest at Courts rate from 19th day of June 2001 till full satisfaction of judgment.

On his appeal to the Court of Appeal, Kaduna Judicial Division, the appellant was refused favour and his appeal was dismissed.

It is the

 

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appellants argument that the determining factor in this case is its developments thereof as against the background antecedence and thereby questioning whether the learned Justices of the Court of Appeal properly and judiciously stated the law on the facts as they did in respect of Section 294 of the Constitution of the Federal Republic of Nigeria, 1999 and Order 37 Rule 11, 12 and 13 of the Kano State High Court (Civil Procedure) Rules 1988.

It is the submission of learned counsel also that the appeal Court Justices were in error when they held that Order 37 Rules 11, 12, and 13 of the Kano State Civil (Procedure Rules) 1988 were irrelevant in arriving at a decision that a denial of fair hearing has been occasioned; that the appellant was not aware of the evidence given against him. Therefore he was not given an opportunity of cross-examining the sole witness PW1. This, learned counsel remarks has violated rules of procedure and an infringement of the provisions of Section 36(1) of the Constitution; that the contravention of the rules of procedure and constitutional requirement for address before judgment resulted in non observance of the rules of

 

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natural justice which cannot be waived and the hearing cannot be said to be fair in the circumstances. Counsel relied on the authority of the case of Obodo V. Olomu & 1 Or (1987) 6 SCNJ page 72 at 83.

From the record of appeal before us the following facts amongst others are obvious and settled:-
1) The appellant upon being served with the writ of summons under the undefended cause list entered an appearance and indeed filed a notice of intention to defend the action.
2) At subsequent return dates when the matter came up in Court, i.e. 28th June 2000, 11th December 2000, 25th January 2001, 21st March 2001 and 19th June 2001, the appellant was neither in Court nor represented by counsel.
3) Prior to the date when the suit was heard and Judgment entered by the trial Court (19th June 2001), the appellants counsel was duly served with a hearing notice and was therefore aware that the suit was to be heard on that day.
4) The Kano State High Court Rules by the provisions of Order 37 Rule 2 allows a Plaintiff (Respondent in this instance) to proceed to prove its claims in default of appearance by the Defendant (Appellant

 

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herein).
5) The same rules of the Kano State High Court make provisions in Order 37 Rule 7 for a Court to proceed to enter judgment in favour of the party in Court after proof of its case.
6) The judgment of the trial Court was a default judgment since same was obtained upon the default of the appellant to appear in Court on the date fixed for hearing (19th June, 2001).

In its judgment of 15th July, 2015, the lower Court took cognizance of the foregoing facts and reasons and affirmed the trial Courts judgment.

Section 294(1) of the 1999 Constitution under reference also provides as follows:-
“Every Court established under the Constitution shall deliver its decision not later than ninety days after the conclusion of evidence and final address

As rightly submitted by the learned counsel for the Respondent, Section 294(1) of the 1999 Constitution relates to an ideal situation where both parties are represented in Court and took the opportunity thus presented to place their evidence before the Court and to subsequently address the Court upon conclusion of a full trial. The same cannot be said of the situation at hand wherein the appellant was given all the opportunity of being heard from the moment

 

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he was served with the writ of summons and all the relevant Court processes.

For all intents and purposes, the appellant in the circumstance at hand cannot be heard to complain genuinely in this case. This is because the record is well clear that he was availed of several opportunities to appear and defend the matter in Court but he elected deliberately to stay away. The evidence shown is from 23rd February 2000 until judgment was entered against him after proof on the 19th June 2001, thereby impliedly abandoning his defence.

There is also the evidence of service of the hearing notice on the appellants counsel with the hearing notice indicating that the matter was being heard on the 19th June, 2001 but he refused or neglected to attend. It was the respondent only that deemed it necessary to attend Court hearing on the 19th June, 2001. In accordance with the Rules of the Kano State High Court, the counsel proved its claims and obtained judgment.

As rightly submitted also, by the respondent’s counsel, appellants reliance on Order 37 Rules 11, 12 and 13 of the Kano State High Court (Civil Procedure) Rules 1988 does not

 

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help his (appellants) case. This is because the rule concerns the proper course of proceedings in a suit when both parties attend Court at the trial and conducted their cases accordingly. The case at hand is a misnomer because both parties did not join issues by way of pleading and represented in Court on the dates fixed for hearings.

The leading trial judge was right and cannot be faulted when he entered judgment in favour of the respondent upon the application of counsel and the lower Court was rightly so in endorsing same. See the case of Thomas Eniyan Olumesan V. Ayodele Ogundele Ogundepo (1996) 2 SCNJ 172 at 184 wherein Iguh, JSC observed and said thus amongst others:-
Accordingly a hearing can only be said to be fair when, inter alia all the parties to the dispute are given a hearing or on opportunity of a hearing. If one of the parties is refused or denied a hearing or is not given an opportunity of being heard, such hearing cannot qualify as a fair hearing under the audi alteram partem rule. See also Briggs V. Briggs (1992) 3 NWLR (Pt. 228) 128.

The lower Court was in perfect position

 

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when it held at pages 92-93 of the record and said:-
“It is therefore abundantly clear that the appellant was given full opportunity of being heard. A person who was not heard but was given ample opportunity of being heard which he failed to make use of cannot therefore complain of loss of fair hearing.”
See Unibiz (Nig) Ltd V. CBCL Ltd (2003) 6 NWLR (Pt.816) 402 at 452, and Adigun V. A-G. Oyo State & Ors (1987) 1 NWLR (Pt.53) 678.

With the few words of mine supra, and particularly relying on the comprehensive reasonings and conclusion arrived at by my learned brother Sanusi, JSC in his lead Judgment, I also agree that this appeal is devoid of any merit and is hereby dismissed by me.

I abide by all orders made in the lead judgment.

CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading the draft of the leading judgment which my Lord, Sanusi, JSC, just delivered now. I endorse the conclusion that, being unmeritorious, this appeal should be dismissed. This short contribution is limited only to the submission relating to the issuance vel non of the hearing notice on the

 

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appellant’s counsel.

By way of preliminary observations, it is, indeed, correct to assert that hearing notice is the only legal means of getting a party to appear in Court, Onwuka V. Owolewa (2001) 28 WRN 89; (2001) 7 NWLR (Pt.713) 695. Thus, the issuance of hearing notice from day to day on the absent party is imperative, Onwuka V. Owolewa (supra); Fetuga V. Barclays Bank D. C. O. (1970) 1 All NLR 28.
In this connection, it must be emphasized that such an absent party is, equally, entitled to be issued and served with a hearing notice of the date of the delivery of he judgment because it is a constitutive part of the hearing of the action, Okoye V. N. C. and F. C. Ltd (1991) 6 NWLR (Pt 199) 501; Akoh V. Abuh [1988] 3 NWLR (Pt 85) 696; C A. F. S Ltd V. Mallah (1998) 10 NWLR (Pt.569) 16; Okafor V. AG, Anambra State and Ors (1991) LPELR-SC.264/1998, 27-28; John A. S.C Ltd V. Mfon (2007) 4 WRN 173, 188  189; Dawodu v. Ologundudu and Ors [1986] 4 NWLR (Pt 33) 104.
The consequence is that where such a process is not served, the entire proceedings would be vitiated. It would be immaterial that it was well-conducted, Habib Nig Bank

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Ltd v Opemulero and Ors (2000) 15 NWLR (Pt.690) 315; Sken Consult Nig Ltd V. Ukey (1981) 1 SC 6; Mbadiniju and Ors v Ezuka and Ors (1994) 10 SCNJ 109; [1994] 8 NWLR (Pt.364) 535; Folorunsho V. Shaloub [1994] 3 NWLR (Pt.333) 413.
This prescription is premised on the radical nature of he right enshrined both in the common law principle of audi alteram partem, Omabuwa v Owhofatsho (2006) 5 NWLR (Pt.972) 40, 67; Tuboneni V. Dikibo (2006) 5 NWLR (Pt 974) 565, 587-588; AG Rivers State V. Ude (2006) 17 NWLR (Pt.1008) 438; Bamgboye V. UNILORIN (1990) 10 NWLR (Pt. 622) 290; Deduwa V. Okorodudu (1976) 9  10 SC 329 and Section 36 (1) of the Constitution of the Federal Republic of Nigeria, Ukpo V. Imoke (2009) 1 NWLR (Pt.1121) 90, 171; Salau V. Egeibon (1994) 6 NWLR (Pt.348) 32; Ceekay Traders Ltd V. G.M.C. Ltd (1992) 2 NWLR (pt.222) 132.
It has, thus, long been settled that failure to effect services on a party renders the eventual verdict void, Habib Nig Bank Ltd V. Opemulero and Ors (supra); Sken Consult Nig Ltd V. Ukey (supra); Mbadiniju and Ors V. Ezuka and Ors (supra); Folorunsho V. Shaloub (supra)

However, the situation in the

 

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instant case is, clearly, different. As shown in the leading judgment, by his own admission, learned counsel for the appellant was served with hearing notice for June 19, 2001. He, however, squandered that prime opportunity to canvass his case. He cannot, therefore, be heard to complain.

In this con, therefore, the plea of fair hearing is un-availing. The fair hearing rule does not apply where counsel had the opportunity of being heard but chose to be silent, Omo v. JSC Delta State (2000) 7 KLR (Pt. 108) 2623 or made cross-examination impossible, Oyedeji V. Akinyele (2002) 3 NWLR (Pt.755) 586, 613. Equally, where counsel, deliberately, fails to avail himself of the opportunity of delivering his address, the absence of his address cannot amount to a denial of fair hearing which could vitiate the judgment of the Court, Chidoka V. First Class Finance Co. Ltd. (2001) 2 NWLR (Pt.697) 216, 227.
This rule also applies to the litigants themselves. Hence, once afforded a reasonable opportunity of being heard, if a party, without a satisfactory explanation, fails or neglects to attend the sitting of the Court, he cannot, thereafter,

 

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be heard to complain of lack of hearing, Okotha V. Herwa Ltd. (2000) 15 NWLR (Pt.690) 249, 258; Adebayo v AG, Ogun State (2008) 7 NWLR (Pt 1085) 201; Mirchandani V. Pinhero (2001) 3 NWLR (Pt 701) 557; Abubakar V. INEC (2004) 1 NWLR (Pt 854) 207; Scott Emukpor V. Ukaube (1979) 1 SC 6; Oyeyipo V. Oyinloye (1987) 1 NWLR (Pt.50) 356; Omo V. JSC, Delta State (2000) 12 NWLR (Pt 682) 444; Nwokocha V. AG, Imo State (2016) LPELR -40077 (SC).

It is for these, and the more detailed, reasons in the leading judgment, that I, too, shall dismiss this appeal as devoid of merit. Appeal dismissed.

 

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Appearances

ADAM ABUBAKAR with him, Abu Haruna
Musa For Appellant

 

AND

ABDULSALAM A. MUSIBAU. For Respondent

 

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