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BALOGUN v. BALOGUN & ORS (2022)

BALOGUN v. BALOGUN & ORS

(2022)LCN/16030(CA) 

In the Court of Appeal

(ILORIN JUDICIAL DIVISION)

On Thursday, April 28, 2022

CA/IL/91/2021

Before Our Lordships:

Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal

Isaiah Olufemi Akeju Justice of the Court of Appeal

Kenneth Ikechukwu Amadi Justice of the Court of Appeal

Between

ASHIRU BALOGUN APPELANT(S)

And

1. ASHIRU BALOGUN (For Himself on Behalf of Members of Alhaji Sanni Abba Balogun Family) 2. KAZEEM ABUBAKAR OYEWO (For Themselves and On Behalf of Members of Abubakar Oyewo Family) 3. BUYING VENTURES LIMITED RESPONDENT(S)

 

RATIO: 

The issue of service of Hearing Notice

The service of Hearing Notice in any case is very important in adjudication. See the Supreme Court case of: COMPACT MAINFOLD & ENERGY SERVICES LTD VS. PAZAN SERVICES NIG. LTD (2019) LPELR 49221 PER GALUMJE, JSC who held as follows:
“What then is the essence of hearing notice? The issue of service of hearing notice on a party notifying him of the hearing date of matters is very fundamental to the administration of justice. It is the service of hearing notice that confers on the Court the jurisdiction competence to entertain the matter before it. Thus where a matter is adjourned to a date other than the date the parties had previous notice of hearing, the Court has duty to notify them of the subsequent adjournment. The Court should not predicate its decision on mere assumption that a party must have been served with Court process at one stage and that he should be aware of the subsequent hearing dates. See Obimonure v. Erinosho (1966) 1 ANLR 250, Skenconsult (Nig.) Ltd v. Ukey (1981) 1 SC.6; Wema Bank Nig. Ltd v. Odulaja (2000) FWLR (Pt. 17) 138 142-143.”

See also OGAH VS. EMENIKE (2019) ALL FWLR PT. 1021 PG 239 where the Supreme Court held also
“The law is clear as daylight. When a party is not in Court and an adjournment is made, the adjourned date must be communicated to the absent party, usually by means of a hearing notice as the Court will have no jurisdiction to proceed in his absence- Habib (Nig) Bank Ltd v. Opomulero (2000) 15 NWLR (Pt. 690) 315; TSOKWA Motors (Nig) Ltd v. U.B.A. Plc (2008) ALL FWLR (Pt. 403) 1240, (2008) 2 NWLR (Pt. 1071) 347; Leaders & Company Ltd v. Bamaiyi (2010) 18 NWLR (Pt. 1225) 329, (2010) LPELR-1771 (SC), (2011) NSCQR Vol. 46, (2010) 12 SC (Pt. 14) 55; Darma v. Ecobank (Nig) Ltd (2017) 9 NWLR (Pt. 1571) 489, (2017) LPELR-41663 (SC).
It is the duty of the trial Court, to ensure that there was service of hearing notice on an absent party before proceeding. The duty is on the Court, not the Registrar of the Court and the Court should normally call for proof of service to ensure there was service and put it in record. Anything short of this, is a dereliction of duty.

See also ACHUZIA VS. OGBOMAH (2016) ALL FWLR PT. 830 PG. 1261.
“In this vein, it cannot be gainsaid that service of hearing notice on a party notifying him of the date and place of hearing is a sine qua non for the just disposal of the cause or matter. The service of Court processes on all parties is fundamental”.

​Counsel also argued that failure to effect service of a process on an opposing party, where service is required in law, amounts to non-fulfillment of a condition precedent to the exercise of jurisdiction by the Court see:
OBIMONURE V. ERINOSHO & ANOR (1966) 2 SCNLR 228; SKENCONSULT (NIG) LTD V. UKEY (1981) 1 SC 6; A.C.B. PLC V. LOSADA (NIG.) LTD & ANOR. (1995) 7 SNCJ 158 AT 167; ARIYEFAH NWAOSU V. IBEJIUBA NWOSU (2000) 4 NWLR (PT. 653) AT 359.

See also LEEDO PRESIDENTIAL MOTEL LTD VS. B.O.N. LTD (1998) LPELR 1775, DARMA VS. ECO BANK (NIG) LTD (2017) ALL FWLR PT. 887 PG. 124 where NWEZE JSC held:
“By the 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. Owolewe (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.C. (1971) 1 ALL NLR 28.” -PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. 

Effect of non-service of Hearing Notice

See: PDP VS INEC (2018 LPELR 44373 where Rhodes-Vivour JSC held that:
“When a case is called and the defendant is absent, it is the duty of the Court to find out if the defendant was served. If he was not served the case is adjourned to another date for service to be properly effected on the defendant.
“…The law is trite that failure to serve Court process or hearing notice, where one is required is a fundamental breach of fair hearing of the party concerned, and renders the proceedings and subsequent judgment a nullity – Pam vs. Mohammed (2008) LPELR-2895, (2008) 16 NWLR (Pt. 1112) 1, Olorunyolemi vs. Akhagbe (2010) 8 NWLR (Pt. 1195) 62 INEC vs. DPP & Ors. (2014) LPELR- 22809 Achuzia vs. Ogbomah (2016) LPELR–40050 at page 14.
In Nyesom vs. Peterside (2016) 7 NWLR (Pt. 1572) 452 at Page 551 the Supreme Court, per Okoro JSC held as follows:- “There is no doubt that fair hearing is in most cases synonymous with natural justice …” -PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. 

Duty of Court to create the atmosphere for fair hearing

See: NUSIA COMMERCIAL FARMS LTD VS. NAL MERCHANT BANK LTD (2001) 16 NWLR PT 740 PG 510.
“Fair hearing is an opportunity to be heard in a Court proceedings or in any situation where Justice is required to be established. In the instant case, the appellants were from the commencement of the action given ample opportunity to prove their claim and challenge the counter-claim. Their silence and nonchalant attitude to the suit was in the circumstance equivalent to acquiescence. They cannot be heard to complain that they were not given a fair hearing’
Counsel referred the Court to OKIKE v. LPDC (2006) I NWLR (PT 960) 67 at 99; SKYPOWER AIRWAYS LTD V. OLIMA (2005) 18 NWLR (PT 957) 224 at 251; GBONYI V. NAL MERCHANT BANK PLC (2010) ALLFWLR (PT 528) 886 at 895.
In NEWSWATCH COMMUNICATION LTD VS. ALH. ALIYU IBRAHIM ATTA (2006) 4 SC PT II PG 114 PER TOBI, JSC held:
It is 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 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 denying him lair hearing. -PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. 

Effect of failure to serve a party notice of proceedings

The law is well settled that any failure to serve a Party entitled to notice of proceedings is a fundamental defect, which goes to the root of the competence OR jurisdiction of the Court to deal with the matter. See: AHMED VS. ADEYEMI (2006) LPELR 9807. -PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. 

On when a party refuses to be an active part of a trial process

The Court must not invoke the principle in favour of one of the Parties to the disadvantage of the other Party undeservedly. To do this, will amount to injustice. Per Tobi in NEWSWATCH COMMUNICATION LTD VS. ATTA (2006) 12 NWLR PT. 993 PG 144. See also: ADO VS. HON COMMISSIONER FOR WORKS BENUE STATE (2007) LPELR 8324, MUHAMMED VS. KPELAI (2001) 6 NWLR PT 710 PG 700 where Mukhtar, JCA as she then was state.
“A party who wants to be absolved from liability must be conscientious and vigilant in defending his case, even if his Counsel is not in Court to follow the progress of the case. Equity aids the vigilant and not the indolent. A party who deliberately refuses to be an active part of the trial process, does so at his own peril for if at the end of the day the end result of a case is not in his favour, he has himself to blame”
The miscarriage of justice is a double-edged sword that operates both ways. A Party cannot hold the other to ransom and expect justice to lean towards him only. -PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A

Principles governing Right to Fair Hearing
The right of fair hearing is guaranteed under Section 36(1) of the 1999 Constitution. It is also a principle of natural justice based on the twin pillars of Audi Alteram Partem and Nento Judex in Causa Sua.
​It is therefore, required that in any proceeding in Court, the Rule of fair hearing must be given due recognition and application by ensuring that parties have equal opportunity of being heard. The effect of a breach of the principle of fair hearing is that the party of the hearing wherein a breach of the principle of fair hearing occurred may be vitiated. See: BAMGBOYE VS. UNILORIN (1999) 10 NWLR PT 622 PG 290, OKAFOR VS. A.G. ANAMBRA STATE (1991) 6 NWLR PT 200 PG 656, MILITARY GOVERNMENT IMO STATE VS. NWAUWA (1997) 2 NWLR PT. 490 PG 675, ASHAGBA VS. MONN (2011) LPELR 9122.
It is for the Court to give ample opportunity for the parties to present their cases. PER UZO IFEYINWA NDUKWE-ANYANWU, J.C.A 

UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of the High Court of Kwara State delivered on 21st June, 2021 by A.A. Adebara J. dismissing the Appellant’s Motion on Notice for an Order to set aside the proceedings of 30th November, 2020 or in the alternative an order reopening of the case of the Appellant to recall the two (2) witnesses called by the 1st Respondent on the 30th November, 2020 when the matter came up for continuation of hearing.

The Appellant in the Court below had written for an adjournment on 9th November, 2020 when this case came up for hearing. The Appellant suggested the 30th November, 2020 or any other date in December, 2020. The Court obliged him the 30th November, 2020 which he had requested.

On the 30th November, 2020, this case came up for hearing, the Appellant and his Counsel failed to turn up without any communication to the Court.

​The Court continued hearing with a rider that if and when the Appellant and his Counsel surfaced, they would be allowed to join. The Appellant and his Counsel failed to turn up that day and DW1 and DW2 gave their evidence in chief and were cross-examined by Counsel present in Court.

The Counsel in protest filed the Motion on Notice praying the Court for the orders already recapped above. Both Counsels adopted their written addresses in furtherance of their position to grant or not to grant the orders as prayed. The learned trial Judge in his considered ruling held in dismissing the Motion refused both prayers.

The Appellant was irked hence this appeal. The Appellant filed his Notice with five (5) Grounds of Appeal on 5th July, 2021. The Appellant’s Brief was filed on 30th November, 2021 and articulated only one Issue for determination as follows:
Whether the trial Court was not wrong by dismissing the application to set the proceedings of 30th November, 2020 and also refused the alternative prayer to cross-examine the two witnesses called in the absence of the Appellant’s Counsel, when hearing notice was not issued and served on the Appellant for the proceedings on 30th November, 2020.

​The Counsel for the 2nd and 3rd Respondent filed their Brief on the 31st December, 2021. However, before the hearing of this appeal, 2nd Respondent died and the Court struck her name off the processes.

The 3rd Respondent also articulated one Issue for determination as well
WHETHER THE APPELLANT CAN CLAIM DENIAL OF FAIR HEARING FOR FAILURE TO BE SERVED WITH HEARING NOTICE WHEN, HAVING APPLIED FOR ADJOURNMENT AND THE CASE HAVING BEEN ADJOURNED TO 30TH NOVEMBER, 2020 SPECIFICALLY SUGGESTED BY HIM, THE TRIAL COURT DISMISSED HIS APPLICATION TO SET ASIDE THE PROCEEDINGS AND RECALL OF WITNESS CALLED ON THE SAID 30TH NOVEMBER, 2020.

The 1st Respondent filed no Brief. The Issues articulated by both parties are substantially the same in content, however, I will utilise the issue articulated by the Appellant the obvious owner of this appeal.

SOLE ISSUE
The Appellant’s Counsel submitted that the Court granted the Appellant an adjournment to the 30th November, 2020 after considering his letter of adjournment. This date was not communicated to the Appellant by Hearing Notice. The service of Hearing Notice in any case is very important in adjudication. See the Supreme Court case of: COMPACT MAINFOLD & ENERGY SERVICES LTD VS. PAZAN SERVICES NIG. LTD (2019) LPELR 49221 PER GALUMJE, JSC who held as follows:
“What then is the essence of hearing notice? The issue of service of hearing notice on a party notifying him of the hearing date of matters is very fundamental to the administration of justice. It is the service of hearing notice that confers on the Court the jurisdiction competence to entertain the matter before it. Thus where a matter is adjourned to a date other than the date the parties had previous notice of hearing, the Court has duty to notify them of the subsequent adjournment. The Court should not predicate its decision on mere assumption that a party must have been served with Court process at one stage and that he should be aware of the subsequent hearing dates. See Obimonure v. Erinosho (1966) 1 ANLR 250, Skenconsult (Nig.) Ltd v. Ukey (1981) 1 SC.6; Wema Bank Nig. Ltd v. Odulaja (2000) FWLR (Pt. 17) 138 142-143.”

See also OGAH VS. EMENIKE (2019) ALL FWLR PT. 1021 PG 239 where the Supreme Court held also
“The law is clear as daylight. When a party is not in Court and an adjournment is made, the adjourned date must be communicated to the absent party, usually by means of a hearing notice as the Court will have no jurisdiction to proceed in his absence- Habib (Nig) Bank Ltd v. Opomulero (2000) 15 NWLR (Pt. 690) 315; TSOKWA Motors (Nig) Ltd v. U.B.A. Plc (2008) ALL FWLR (Pt. 403) 1240, (2008) 2 NWLR (Pt. 1071) 347; Leaders & Company Ltd v. Bamaiyi (2010) 18 NWLR (Pt. 1225) 329, (2010) LPELR-1771 (SC), (2011) NSCQR Vol. 46, (2010) 12 SC (Pt. 14) 55; Darma v. Ecobank (Nig) Ltd (2017) 9 NWLR (Pt. 1571) 489, (2017) LPELR-41663 (SC).
It is the duty of the trial Court, to ensure that there was service of hearing notice on an absent party before proceeding. The duty is on the Court, not the Registrar of the Court and the Court should normally call for proof of service to ensure there was service and put it in record. Anything short of this, is a dereliction of duty.

See also ACHUZIA VS. OGBOMAH (2016) ALL FWLR PT. 830 PG. 1261.
“In this vein, it cannot be gainsaid that service of hearing notice on a party notifying him of the date and place of hearing is a sine qua non for the just disposal of the cause or matter. The service of Court processes on all parties is fundamental”.

​Counsel also argued that failure to effect service of a process on an opposing party, where service is required in law, amounts to non-fulfillment of a condition precedent to the exercise of jurisdiction by the Court see:
OBIMONURE V. ERINOSHO & ANOR (1966) 2 SCNLR 228; SKENCONSULT (NIG) LTD V. UKEY (1981) 1 SC 6; A.C.B. PLC V. LOSADA (NIG.) LTD & ANOR. (1995) 7 SNCJ 158 AT 167; ARIYEFAH NWAOSU V. IBEJIUBA NWOSU (2000) 4 NWLR (PT. 653) AT 359.

See also LEEDO PRESIDENTIAL MOTEL LTD VS. B.O.N. LTD (1998) LPELR 1775, DARMA VS. ECO BANK (NIG) LTD (2017) ALL FWLR PT. 887 PG. 124 where NWEZE JSC held:
“By the 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. Owolewe (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.C. (1971) 1 ALL NLR 28.”

See: PDP VS INEC (2018 LPELR 44373 where Rhodes-Vivour JSC held that:
“When a case is called and the defendant is absent, it is the duty of the Court to find out if the defendant was served. If he was not served the case is adjourned to another date for service to be properly effected on the defendant.
“…The law is trite that failure to serve Court process or hearing notice, where one is required is a fundamental breach of fair hearing of the party concerned, and renders the proceedings and subsequent judgment a nullity – Pam vs. Mohammed (2008) LPELR-2895, (2008) 16 NWLR (Pt. 1112) 1, Olorunyolemi vs. Akhagbe (2010) 8 NWLR (Pt. 1195) 62 INEC vs. DPP & Ors. (2014) LPELR- 22809 Achuzia vs. Ogbomah (2016) LPELR–40050 at page 14.
In Nyesom vs. Peterside (2016) 7 NWLR (Pt. 1572) 452 at Page 551 the Supreme Court, per Okoro JSC held as follows:- “There is no doubt that fair hearing is in most cases synonymous with natural justice …”

Counsel thereafter, urged the Court to allow this appeal and overturn the Ruling of the trial Court.

​In response, the 3rd Respondent’s Counsel submitted that the right to fair hearing of the Appellant has not been breached. The Appellant wrote for an adjournment and suggested 30th November, 2020 in his letter. That date was taken as the next adjourned date for the letter of the Appellant’s Counsel. The Appellant or his Counsel ought to have gone to the Registrar to find out what happened in Court.

The Appellant and his Counsel did not appear in Court on the date suggested by them and granted by the Court.
The evidence of DW1 and DW2 was taken in the absence of the Appellant and his Counsel.

Counsel argued that the Court did not owe the 3rd Respondent a duty to serve him with Hearing Notice of that date as they suggested the date of adjournment. See: NUSIA COMMERCIAL FARMS LTD VS. NAL MERCHANT BANK LTD (2001) 16 NWLR PT 740 PG 510.
“Fair hearing is an opportunity to be heard in a Court proceedings or in any situation where Justice is required to be established. In the instant case, the appellants were from the commencement of the action given ample opportunity to prove their claim and challenge the counter-claim. Their silence and nonchalant attitude to the suit was in the circumstance equivalent to acquiescence. They cannot be heard to complain that they were not given a fair hearing’
Counsel referred the Court to OKIKE v. LPDC (2006) I NWLR (PT 960) 67 at 99; SKYPOWER AIRWAYS LTD V. OLIMA (2005) 18 NWLR (PT 957) 224 at 251; GBONYI V. NAL MERCHANT BANK PLC (2010) ALLFWLR (PT 528) 886 at 895.

In NEWSWATCH COMMUNICATION LTD VS. ALH. ALIYU IBRAHIM ATTA (2006) 4 SC PT II PG 114 PER TOBI, JSC held:
It is 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 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 denying him lair hearing.

Counsel concedes that Hearing Notice is the only means of communicating the date of hearing to the parties. However, where the date is the one suggested by the Appellant’s Counsel he is not deserving of a Hearing Notice. See JIDE ADIBUA VS. ENGINEER D.C. DIM (2003) 9 FR PG. 1, FABIYI JCA (as he then was held:
“It is the duty of a party who writes to the Court seeking for an adjournment to find out the next date slated for his case. It is not the business of the Court to pamper him with an undeserved hearing notice which may end up creating a bottle neck in the main” Counsel re-iterated that the Appellant was given ample opportunity of being heard but misused the opportunity. The Appellant never claimed that he was not aware of the next adjourned date but claimed that Hearing Notice was not served on him. See: S&D CONSTRUCTION COMPANY LTD VS. AYOKU (2011) 6-7 SC PT. II PG. 101 where Fabiyi JSC held as follows:
“It was canvassed on behalf of the Appellant that hearing notice was not issued in respect of the two dates fixed for trial. To my mind, the new stance equates to clinging to a straw. A party as herein, who already knows or is reasonably presumed to know of the date for which its case is scheduled or hearing does not require hearing notice to be served on it See: Jonason Triangles Ltd v. CM & P Ltd (2002) 15 NWLR (PT. 789) 176.

Adekeye JSC in his concurring Judgment held that:
“It is trite law that hearing notice will not be issued or served on parties who already know or are reasonably presumed to have known of the date on which a matter is slated for hearing.”

​Rhodes Vivour in the same case concurred and held:
Paragraph 16 of the Appellant’s reply to counter-claim is clear that the Appellant was aware that the hearing dates were fixed for 7th and 8th September, 2000. Hearing notice is not necessary when parties are aware of the dates fixed.

Counsel also argued that the burden is on the party alleging breach of fair hearing in a case to prove the breach and must do so in the light of the facts of the case: MAIKYO VS. W.E. ITODO (2007) 3 SC PT II PG. 34, NBC  VS. TAIWO (2018) ALL FWLR PT 940 PG 25.

Counsel submitted that the learned trial Judge exercised his discretion judiciously and judicially in considering the interests of all the parties. The Appellant was indeed in the habit of absenting himself from Court which the Court referred to in his considered ruling.

The trial Judge refused to grant the order prayed for and even the alternative orders canvassed.
Counsel finally urged the Court to resolve this Issue in favour of the Respondent and dismiss this appeal.

RESOLUTION
The purpose of service of Hearing Notice is in essence, to give notice to the Parties. The law is well settled that any failure to serve a Party entitled to notice of proceedings is a fundamental defect, which goes to the root of the competence OR jurisdiction of the Court to deal with the matter. See: AHMED VS. ADEYEMI (2006) LPELR 9807.

It might be apt to re-cap what transpired in Court which is the root of this appeal.
On the 9th November, 2020, the Appellant’s were absent in Court but wrote a letter of adjournment Exhibit ROC5 suggesting 30th November, 2020 OR any other date in December, 2020.

The Court magnanimously acceded to the suggested date of 30th November, 2020. The Court never ordered for fresh Hearing Notice to be served on the Appellant. On the 30th November, 2020, the Appellant and his Counsel were absent in Court.

The Court and the other Parties in the case were of the opinion that since the Court granted the Appellant, the date suggested date that there was no need for Hearing Notice to be issued.

The Appellant was expected to have enquired about what transpired in Court as per his letter of adjournment written to the trial Court.

The trial Court continued with the sitting of the day and the DW1 and DW2 testified and were cross-examined by the Parties in Court.

The Appellant have filed a Motion, the genesis of this appeal, praying the Court to hold that the proceedings of 30th November, 2020 was null and void or in the alternative to recall DW1 and DW2 to be cross-examined by the Appellant. The trial Judge dismissed the application refusing the orders prayed for.

The issue of Hearing Notice borders on the jurisdiction of the Court to adjudicate on any matter. Parties are entitled to be served with Hearing Notice of the date their matter is coming up in Court.

I agree that the Appellant wrote for an adjournment and indicated his preferred date which the Court obliged. It is desirable that a Counsel if he is diligent with his client’s case ought to have gone back to the Court to enquire as to what date his case was adjourned to.

It has become a habit for Counsel who absents themselves from Court and would not go back to enquire as to what happened in Court, such a Counsel should be repudiated in no small measure. It has been held severally that a litigant must be diligent in the prosecution of his case.

​Counsel and litigants should be diligent in the conduct of their cases. In this appeal, the Counsel of the Appellant should have exhibited better diligence in the conduct of his affairs as regards the letter of adjournment.

The Appellant and his Counsel had obviously absented themselves severally in the course of this case, thereby causing unnecessary delay to the progress of this case. Where the Court showed magnanimous to a party, it should be reciprocated. This singular act of not finding out what happened to his case after writing for an adjournment leaves much to be desired. This type of tardiness contributing immensely to the cog in the wheel of progress in the Court system.

The Appellant’s Counsel in this appeal has stated that the Appellant was not given a fair hearing in that a Hearing Notice was not served on him for the 30th November, 2020 when he ought to have found out which day his case was adjourned to. Be that as it may, the Court has warned severally that fair hearing is a two-way traffic, in the sense that it must satisfy a double carriage-way, in the context of both the Plaintiff and the Defendant or both the Appellant and Respondent.
​The Court must not invoke the principle in favour of one of the Parties to the disadvantage of the other Party undeservedly. To do this, will amount to injustice. Per Tobi in NEWSWATCH COMMUNICATION LTD VS. ATTA (2006) 12 NWLR PT. 993 PG 144. See also: ADO VS. HON COMMISSIONER FOR WORKS BENUE STATE (2007) LPELR 8324, MUHAMMED VS. KPELAI (2001) 6 NWLR PT 710 PG 700 where Mukhtar, JCA as she then was state.
“A party who wants to be absolved from liability must be conscientious and vigilant in defending his case, even if his Counsel is not in Court to follow the progress of the case. Equity aids the vigilant and not the indolent. A party who deliberately refuses to be an active part of the trial process, does so at his own peril for if at the end of the day the end result of a case is not in his favour, he has himself to blame”
The miscarriage of justice is a double-edged sword that operates both ways. A Party cannot hold the other to ransom and expect justice to lean towards him only.
The right of fair hearing is guaranteed under Section 36(1) of the 1999 Constitution. It is also a principle of natural justice based on the twin pillars of Audi Alteram Partem and Nento Judex in Causa Sua.
​It is therefore, required that in any proceeding in Court, the Rule of fair hearing must be given due recognition and application by ensuring that parties have equal opportunity of being heard. The effect of a breach of the principle of fair hearing is that the party of the hearing wherein a breach of the principle of fair hearing occurred may be vitiated. See: BAMGBOYE VS. UNILORIN (1999) 10 NWLR PT 622 PG 290, OKAFOR VS. A.G. ANAMBRA STATE (1991) 6 NWLR PT 200 PG 656, MILITARY GOVERNMENT IMO STATE VS. NWAUWA (1997) 2 NWLR PT. 490 PG 675, ASHAGBA VS. MONN (2011) LPELR 9122.
It is for the Court to give ample opportunity for the parties to present their cases.

The Appellant in this appeal complained that he was not served with Hearing Notice for the 30th November, 2020 it would be recalled that the Appellant was not in Court the day the case was adjourned on his behest.
​Even though he was given the date he requested, still the Appellant reserved the right to be issued with a Hearing Notice. The issuance of a Hearing Notice means that the Court has informed him of the next hearing date. Therefore, he has been afforded an opportunity to be heard. It must be emphasised that failure to serve a hearing Notice when required, rendered null and void any order made against the party who should have been served with the Hearing Notice. See: MADUKOLU VS NKEMDILIM (1962) 2 SCNLR PG 341.
The learned trial Judge had relied heavily on the case of: ADIBUAH VS ENGINEER D.C. DIM (2003) 9 FR PG 1 where Fabiyi JCA (as he then was) in his obilent dictum stated inter alia.
“The hearing notice further ordered by the trial Court, in my own view, appeared to be underserved. The Appellant should have found out from the Registry of the trial Court the next day stated for further hearing of his matter.”
It is to be observed that in that case, even though the Appellant was obliged the date he requested for, the Court, still ordered Hearing Notice to be issued on him.
It is important to serve Hearing Notice on any party absent in Court to inform him of the next date. This is to ensure that the principle of fair hearing is not breached.
​It is true that a diligent Counsel should have gone to enquire whether the date he requested for was indeed granted. However, it is necessary that in all proceedings the Court must endeavour to adhere strictly to the principle of fair hearing as provided in Section 36(1) of the 1999 Constitution bearing in mind that where there is an allegation of denial of fair hearing in a trial, the whole proceedings is brought into question.
In this appeal, the Appellant in the lower Court was not issued with Hearing Notice. This singular act put into question whether the principles of fair hearing was adhered to. To this, I say that the principle of fair hearing was breached when the Appellant was not issued with Hearing Notice for the 30th November, 2020.

In the Motion the Appellant prayed for the following orders:
1. AN ORDER of this Honourable Court setting aside the entire proceedings of 30th day of November, 2020.
OR IN THE ALTERNATIVE
AN ORDER of this Honourable Court for re-opening of the case of the 1st Defendant.
2. AN ORDER of this Honourable Court allowing the 2nd Defendant/Applicant to recall the 2 Witnesses called by the 1st Defendant i.e DW1 and DW2 on 30th day of November, 2020 when this matter came up for hearing for the purpose of being cross-examined by the Counsel to the 2nd Defendant/Applicant who was not in Court
3. And for such further order(s) as this Honourable Court may deem fit to make in the circumstances of this case.

The learned trial Judge in his wisdom refused all the orders in dismissing the Motion.

However, having held that the Appellant’s right of fair hearing was breached, I resolve this sole Issue in favour of the Appellant and allow this appeal. The ruling of the lower Court is hereby set aside.

I hereby order that the Honourable Court below shall allow the 2nd Defendant/Applicant to recall the 2 Witnesses called by the 1st Defendant i.e. DW1 and DW2 on the 30th November, 2020 when this matter came up for hearing for the purpose of being cross-examined by the Counsel to the 2nd Defendant/Appellant who was absent in Court on that 30th November, 2020.
No order as to cost.

ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity of reading the judgment of my learned brother, UZO I. NDUKWE-ANYANWU, JCA, and I agree with the reasoning as well as the conclusion therein. I allow the appeal and abide by the consequential order.

KENNETH IKECHUKWU AMADI, J.C.A.: I have had advantage of perusing the exhaustive and thorough judgment prepared by my learned brother

UZO I. NDUKWE-ANYANWU, JCA. I agree with his lordship that this appeal has merit. It is hereby allowed. I abide by the consequential orders made therein.

Appearances:

H.O Busari For Appellant(s)

Yusuf A.T. – for 1st Respondent

DR. D.A. Ariyoosu, Esq. with him, Kayode Oni, Esq. and C.O. Bamishaye, Esq. – for 2nd and 3rd Respondents

I. Bello, Esq. – for 4th Respondent For Respondent(s)