ALHAJI (CHIEF) WAIDI OLATUNJI v. LASISI ADEDAPO & ORS
(2013)LCN/6640(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of December, 2013
CA/I/100/2010
JUSTICES
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
CHIOMA NWAOMA UWA Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
ALHAJI (CHIEF) WAIDI OLATUNJI
(Trading under the Business name of OLATUNJI & SONS) Appellant(s)
AND
1. LASISI ADEDAPO
2. RASAKI ADEDAPO
3. LAYI ADEDAPO
4. MADAM ADERINOLA ADEDAPO
5. SILIFATU ADERIBIGBE
6. ABIDEEN ADERIBIGBE
7. AFUSATU ADERIBIGBE
(for themselves and on behalf of Adedapo/Aderibigbe family) Respondent(s)
RATIO
THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING AND NATURAL JUSTICE
It is pertinent to look at the concept of fair hearing as fair hearing is a fundamental factor in every judicial proceeding. In the case of Chukwuma v. FRN (2011) LPELR-869 (SC) my lord Mohammed JSC held @ pp 23-24 that:-
“The concept of fair hearing postulates a hearing in which the authority is fairly exercised, that is consistent with the fundamental principles of justice embraced within the conception of due process of law. Contemplated in a fair hearing is the right to present evidence, to cross-examine and to have findings supported by evidence. It thus, implies that both sides be given an opportunity to present their respective case and that each side is entitled to know that case is being made against it and given an opportunity to reply thereto”. On natural justice Rhodes-Vivour JSC @ 46-42
“Natural justice demands that a party be heard before the case against him is determined. Once there is no infringement of the principle of natural justice against him the trial is fair.” In the case of Alsthom & Anor v. Saraki (2005) LPELR-435(SC) Per Ejiwunmi JSC (of blessed memory) @ page 23 held that:-
“Fair hearing according to the law, envisages that both parties to a case be given an opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It also envisages that the court or tribunal hearing the parties case should be fair and impartial without showing any degree of bias against any of the parties”
(see also Section 36 of the constitution of the FRN 1999 (as amended) & Azuokwu v. Nwokanma & Anor (2005) LPELR-690 (SC), Pam & Anor v. Mohammed & Anor (2008) LPELR – 2895 (SC). Thus, requisite from these formidable definitions of fair hearing is the presence of the parties which can only be by the knowledge of the dates of the sitting of the court. In other words, the parties must each be notified of the relevant dates on which the matter will be heard. The exception to this rule is when both parties are in court when a matter is adjourned, no service of hearing notice for the said adjournment is necessary if the court sits on the said date. However, if for any reason the court did not sit, then fresh hearing notices must be issued. PER DONGBAN-MENSEM, J.C.A.
THE MEANING OF THE LATIN MAXIM “AUDI ALTERAM PARTEM”
The rule of natural justice expressed in the latin maxim audi alteram partem is at the very core of the concept of justice. Before any decision is arrived at, a party must be heard, or at least, given an opportunity of being heard.
Although parties do sometimes indulge in an irritating game of hide and seek, a court must not allow itself to be driven to a point of exasperation as to close the door of hearing against a party on account of such irritation. The door must be kept open. If a party was in court on a day a matter was adjourned, such a party does not need a hearing notice since he was in court to know the adjourned date. But if for some reason the adjourned date is changed, he is entitled to a notice of the new date the case is adjourned to. PER DANIEL-KALIO, J.C.A.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): On the 1st of June, 2007 Honourable Justice A. A. Adeniran upheld the case of the Respondents as Plaintiffs and against the Appellant as Defendant. The parties shall hereafter be referred to simply as Appellant and Respondents respectively.
The Respondents as Plaintiffs before the High Court of Justice of Oyo State sought the following reliefs in their Statement of Claim:-
(1) A declaration that the purported agreement dated 26th day of June, 1996 executed between the plaintiffs and the Defendant for not including essential terms of the contract and so it is illegal and void and should be set aside for the following grounds viz:-
a. It does not represent the true intention of the parties when the contract was entered into between the parties sometimes in March, 1996 at the meeting held in Adetona’s compound, Idikan, Ibadan.
b. Though the documents contained illiterate’s jurat provisions of Illiterate protection Laws of the Federation of Nigeria, 1958 cap. 83 were not complied with.
(2) In the alternative, a declaration that the Defendant is in breach of the fundamental terms of the contract Agreement for the non-completion of the construction project.
(3) An order for the termination of the said contract Agreement for non-completion of the construction works of the project.
(4) An order for recovery of possession of the plaintiffs’ landed properties.
(5) A declaration that the Defendant is only entitled to be paid Quantum Meruit for the work done for the period 1/10/96 to 30/09/97 on the plaintiffs house he (the Defendant) having failed to complete construction works on the project within the agreed stipulated time.
(6) Sum of N900,000.00 (Nine Hundred Thousand Naira) being damages for the breach of the contract as follows:-
(a) sum of N72,000.00 (Seven-Two Thousand Naira) being arrears of rent at the rate of N4, 000.00 per month for the period of 1st October, 1997 to 31st March, 1999 in respect of the four shops which Defendant failed to construct on the first floor of the Plaintiffs house.
(b) Sum of N18, 000.00 (Eighteen Thousand Naira) being arrears of rents at the rate of N1,000.00 per month for the period of 1st October, 1997 to 31st March, 1999 in respect of the four rooms which Defendant failed to construct on the first floor of the Plaintiffs’ house.
(7) An order of injunction restraining the Defendant his servant and/or agents from going into the plaintiffs landed properties situate at NW2/528, Ikolaba’s Compound, Idikan, Ibadan harassing and or preventing the Plaintiffs, their servants and/or agents from carrying on the reconstruction and or using the landed properties.”
Pleadings were filed and exchanged by the Parties. The Respondent tendered exhibits, called witnesses who were cross-examined by the Appellant. The Appellant did not lead evidence or call any witness in support of his statement of defence.
The learned trial Judge delivered a considered judgment granting all the claims of the Respondents as Plaintiffs except the 6th claim. Agitated by the trial court’s decision, the Appellant filed a Notice of Appeal containing four grounds. (See pages 166-168 of the record).
The appeal came up for hearing on the 18th day of November, 2013.
The learned counsel for the Appellant S. A. Sanni Esq., highlighted and adopts the Appellant’s brief of argument dated 5th August, 2010 and filed on the same day but deemed filed on the 18th November, 2012, counsel raised and argued 4 issues for determination as follows:-
“i. Whether the trial judge was right in law when the court proceed to hear the suit on the 11th day of December, 2006, 15th day of January, 2007, 12th February, 2007, 6th day of March, 2007 and 1st day of June, 2007 respectively without the issuance for service hearing notices to that effect on the Appellant.
ii. Whether the trial judge was right in law when the court went ahead to read into the agreement between the parties the period within which the project must be concluded, when the same was not included in the contract agreement.
iii. Whether the trial judge was right in law when the court held that the Appellant is in breach of fundamental terms of the contract of non-completion of the work within a period of one year.
iv. Whether the trial judge was right in law when the court went ahead to give back the possession of the property back to the Respondents before the expiration of the 60 years which was agreed on by the parties.”
The Respondent’s learned counsel K. A. Oyesola adopts and relies on the Respondent’s brief of argument dated 13th May, 2011 and filed on the same day but deemed fired on the 18th November, 2012. Counsel also raised and argued 4 issues for determination as follows:-
“i. Whether the Appellant can complain of fair hearing when the lower court amply gave him opportunities to defend his case but chose not to.
ii. Whether the trial judge was right in law when he acted on the uncontroverted evidence of the Plaintiffs as to the terms of the agreement between the parties.
ii. Whether the trial judge was right in law when he held that the Appellant was in breach of fundamental terms of the contract for non-completion of the work within a period of one year.
iv. Whether the trial judge was right in law when the court gave back possession of the property to the Appellants after the Appellants have successfully led evidence of the breach of fundamental terms of the contract.”
Issue one
The learned Counsel for the Appellant submits that whenever a case is adjourned for hearing in the absence of the other party in a proceeding, it is mandatory for a hearing notice to be issued for service as a precondition for continuation of the suit. That the trial court failed to issue hearing notice of the suit on the following dates:-
i. 11th December, 2006
ii. 15th January, 2007
iii. 12th February, 2007
iv. 1st March, 2007 and,
v. 6th June, 2007
Which failure is unconstitutional and a breach of the fundamental right of fair hearing of the Appellant. That this court looked at a similar situation in the case of So Mai Sonka v. Adzege (2001) FWLR (Pt.68) page 1104 @ 1122 and held as follows:-
“a right to fair hearing is a constitutional right available to all citizens of Nigeria, particularly in a court of law a breach of which nullifies the hearing of the case.
Where a hearing date is fixed in the absence of a party, he is entitled to a hearing notice. That is the type of situation where a judgment given in a case heard in the absence of a defendant may be regarded as one given without jurisdiction and must be set aside. For the absence of the party is due to failure to notify him of hearing date by service of hearing notice.
Where adjournments are granted at the other parties instance on the court’s instance, the party that is neither in court nor represented, must be informed of the next adjourned date.”
Counsel urges this court to set aside the trial court’s proceedings of the above mentioned dates.
The learned counsel for the Respondents submits that for proper determination of the case, it is pertinent to look at the way and manner the Appellant conducted his case at the trial court as he was not diligent at all and that the learned trial judge attested to this fact at page 160 of the record. That a person who was not heard but given ample opportunity of being heard which he failed to make use of and opted out cannot complain of a lack of fair hearing. The learned Counsel refers to the case of Oguntayo v. Adelaja (2009) ALL FWLR (pt. 495) page 1623 @ 1640 which held that:-
“In litigation, where the trial court refuses or fails to allow a party to present his case, his constitutional right to fair hearing is obviously breached. In the instant case, the counsels were given opportunity to be heard, but the Plaintiff’s Counsel failed to use same, he cannot now complain of breach of fair hearing. A person who was not heard but given ample opportunity of being heard which he failed to make use of cannot thereafter complain of a loss of fair hearing. Fair hearing is not a one way affair, it affects both parties…”
(See also Obienu v. Okeke (2006) ALL FWLR (PT. 340) page 116 @ 1169, Azudibia v. INEC (2010) ALL FWLR (pt. 505) pg. 1684 @ 1690)
Counsel submits that the Appellant, at its instance caused several adjournments and even brought an application to recall the Respondents’ witnesses for the purpose of cross-examination which was granted and again he failed to open his case which led the trial court to close the defence three years after the defence cross-examined the Respondents’ witnesses. That the claim not to have been served hearing notice, assuming without conceding that counsel was not served with hearing notice on the alleged dates, notwithstanding the Appellant did not make any effort within the three years before judgment was delivered. (Refers page 133, 141-143 & 145-147 of the record).
Counsel further submits that in considering whether there is a breach in fair hearing the attitude of the party complaining must be considered which the trial court did and found that Appellant was not diligent and displayed lack of interest in defending his case. Referring to the maxim that says “Equity aids the vigilant and not the indolent”. That the onus is on the Appellant to prove how he was denied fair hearing after being given ample opportunity which he refused to use and that the cases he referred to on fair hearing cannot avail the Appellant.
On this issue, both the Appellant and the Respondent addressed the question of fair hearing, in particular, the Appellant who argued that his fundamental right of fair hearing was breached as he was not informed on certain days that the court sat. In this situation, what is fair hearing?
Was the Appellant given the opportunity to present his case? Did the Appellant deliberately opt out instead of presenting his case? It is pertinent to look at the concept of fair hearing as fair hearing is a fundamental factor in every judicial proceeding. In the case of Chukwuma v. FRN (2011) LPELR-869 (SC) my lord Mohammed JSC held @ pp 23-24 that:-
“The concept of fair hearing postulates a hearing in which the authority is fairly exercised, that is consistent with the fundamental principles of justice embraced within the conception of due process of law. Contemplated in a fair hearing is the right to present evidence, to cross-examine and to have findings supported by evidence. It thus, implies that both sides be given an opportunity to present their respective case and that each side is entitled to know that case is being made against it and given an opportunity to reply thereto”.
On natural justice Rhodes-Vivour JSC @ 46-42
“Natural justice demands that a party be heard before the case against him is determined. Once there is no infringement of the principle of natural justice against him the trial is fair.”
In the case of Alsthom & Anor v. Saraki (2005) LPELR-435(SC) Per Ejiwunmi JSC (of blessed memory) @ page 23 held that:-
“Fair hearing according to the law, envisages that both parties to a case be given an opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It also envisages that the court or tribunal hearing the parties case should be fair and impartial without showing any degree of bias against any of the parties”
(see also Section 36 of the constitution of the FRN 1999 (as amended) & Azuokwu v. Nwokanma & Anor (2005) LPELR-690 (SC), Pam & Anor v. Mohammed & Anor (2008) LPELR – 2895 (SC).
Thus, requisite from these formidable definitions of fair hearing is the presence of the parties which can only be by the knowledge of the dates of the sitting of the court. In other words, the parties must each be notified of the relevant dates on which the matter will be heard. The exception to this rule is when both parties are in court when a matter is adjourned, no service of hearing notice for the said adjournment is necessary if the court sits on the said date. However, if for any reason the court did not sit, then fresh hearing notices must be issued.
Now, there would clearly be an infringement if the case of a party is heard and determined behind his back. Is that what happened in this appeal? Was the Appellant dully served with hearing notices before the court proceeded?
In this appeal, the learned trial judge found that the Appellant was rather reluctant or an evading defendant in the suit before the court. His lordship held @ page 156 that:-
“this case came up for hearing on several occasions but had to be adjourned from time to time mainly at the instance of the defendant. It eventually came up again for hearing on 17/5/03. The Defendant and his counsel were again absent and at the instance of the defendant. It eventually came up again for hearing on 7/5/03. The Defendant and his counsel were again absent and at the instance learned counsel for the plaintiffs allowed the plaintiffs to proceed with the case.”
The Apex court has severally held that fair hearing is a two way traffic. (Refers Oguntayo v. Adelaja (2009) ALL FWLR (pt. 495) page 1623 @ 1640).
When a party is put on notice of a pending process against him but elects to stall the progress of the proceeding by an epileptic participation; a court is at liberty to proceed without such a party. After several adjournments at the Appellant’s instance, he failed to avail himself of the indulgence granted to him and at the expense of the opponent.
In the circumstance, I find it difficult to distance myself from the decision of the learned trial judge to proceed without the Appellant. However; on a close perusal of the records, particularly pages 150-153 of the record, the Appellant resurfaced with three witnesses in court. The witnesses were however not heard because the learned Counsel to the Respondents Mr. Tunde Akande asked for an adjournment to enable him appear before an election tribunal. The application was granted and the matter was adjourned for defence on the 18/04/2006 @ page 150 of the record. There is no record of any proceedings having being held on the said 18/04/2006. Probably the court could not sit.
At page 151, the next proceedings shows the date of 06/03/2007 on which date both the Defendant and his learned Counsel were not in court. The court nonetheless proceeded and took the address of the learned Counsel for the Respondents and thereafter reserved judgment.
Before the court proceeded to take the final address, the learned Counsel submitted that the learned Counsel to the Appellant was consistently absent. This allegation cannot be sustained by the proceedings of the court at page 150 on the 28/02/06 when the matter was last adjourned in the presence of the Appellant. There is no evidence that hearing notice was served on the Appellant when the matter was adjourned to 06/03/2007 a date different from 18/04/2006 which the Appellant had knowledge of. Why the court did not sit on the 18/4/2006 is not known as there is no record to that fact. Thus, without more, it is incorrect to state that the Appellant was consistently absent. The learned trial judge was therefore wrong to proceed to final address and then judgment without further inviting the Appellant to present his witnesses.
The trial judge was no doubt exasperated by the conduct of the Appellant and his lordship endured. The walls of the patience however caved in eventually but the learned trial judge shut out the Appellant at the point he had finally awaken to the reality of the case. The Appellant should have been allowed one more chance because when he showed up in court with three witnesses, it was the Respondent’s learned counsel who was not prepared. He said he had to appear before an election tribunal. Although the particulars of the tribunal were not stated, it is common knowledge that election matters take precedence over other matters.
In the light of the proceedings @ pages 150-153 of the records, the Appellant was indeed denied a right to state his case. The foreclosure of the Appellant in these circumstances constitutes a breach of the constitutional right of the Appellant as provided by section 36 of the 1999 Constitution of the FRN (as amended).
The breach is fundamental and thereby renders the judgment of the learned trial judge a monumental waste. In the circumstance a consideration of the other issues formulated is unnecessary. The judgment of the trial court is accordingly set aside being a nullity.
This appeal accordingly succeeds and is hereby allowed.
The prayer of the learned Counsel at paragraph 3.7 that this court sets aside the proceedings of the trial court on the dates the Appellant was not served hearing notice is a unique one. The question which agitates the mind is whether this case is to be sent back to the same judge? It would indeed safe the testimonies already taken but would the interest of justice be better served by such order?
I think not so.
The case is hereby remitted to the Hon. Chief Judge of Oyo State for a proper trial and determination of the issues before another judge of the Oyo State High Court.
A cost of N30, 000.00 is hereby awarded to the Respondent and against the Appellant.
CHIDI NWAOMA UWA, J.C.A.: I have read the draft of the Judgment of my learned brother, M. B. Dongban-Mensem, JCA. I agree with the conclusion arrived at in remitting the case to the Chief Judge of Oyo State for trial and determination before another Judge.
I abide by the order made as to costs.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my Lord Monica Bolna’an Dongban-Mensem J.C.A. and I entirely agree with my lord. The rule of natural justice expressed in the latin maxim audi alteram partem is at the very core of the concept of justice. Before any decision is arrived at, a party must be heard, or at least, given an opportunity of being heard.
Although parties do sometimes indulge in an irritating game of hide and seek, a court must not allow itself to be driven to a point of exasperation as to close the door of hearing against a party on account of such irritation. The door must be kept open. If a party was in court on a day a matter was adjourned, such a party does not need a hearing notice since he was in court to know the adjourned date. But if for some reason the adjourned date is changed, he is entitled to a notice of the new date the case is adjourned to.
For the above reasons and the fuller reasons given by my lord in the lead judgment, I agree that the case be remitted to the Hon. Chief Judge of Oyo State for trial before another Judge. I also agree with the order as to costs.
Appearances
S. O. Sanni with D. C. Ajare Esq.For Appellant
AND
Respondent-AbsentFor Respondent
