COMMISSIONER OF POLICE v. SAINT JOHN ONYEBINAMA
(2018)LCN/11898(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of July, 2018
CA/YL/153C/2017
RATIO
COURT AND PROCEDURE: FAILURE TO SERVE HEARING
“The law is quite trite that, service of hearing notice is fundamental and germane under due process of law. Hence, failure to serve hearing notice renders the proceedings at whatever stage a nullity. See amongst an army of judicial authorities, the cases of: (1) Chief of Naval Staff v. Edeh (2015) LPELR-24581; (2) Onadeko v. U.B.N. Plc. (2005) 4NWLR (Pt.916) p.440; (3) Credit Alliance Financial Services Ltd. V. Mallah (supra); (4) F.B.N.Plc. v. T.S.A. Ind. Ltd. (2015) 11 NWLR (Pt.1470) p.346 and (5) Scott-Emuakpor v. Ukavbe (1975) 12SC p.41. In an earlier decision of this Court per Ngwuta, J.C.A (as he then was, now J.S.C.) in the case of: Leader Olumba Olumba Obu (Roland Obu) v. Etinyin Ededem Archibong (1), it was held in the following very pungent words that: A hearing notice ought to be served on the appellant and the fatal effect of non-service of the process on the proceedings cannot be mellowed down by the state of mind of the Court or the respondent. It is an infringement of the appellants right to an opportunity to be heard in his defence. See U.B.A. LTD. V. MRS. NGOZI ACHORU (1990) 1 WASC 1 at 3 ratio 8. And in jurisprudence, the infringement of a right gives rise to a remedy at law. See J. E. K. APPIAH V. THE REPUBLIC (1990) 1 WASC 27 AT 28?” PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
JUSTICES:
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
Between
COMMISSIONER OF POLICE – Appellant(s)
AND
SAINT JOHN ONYEBINAMA – Respondent(s)
OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the High Court of Taraba State holden in Jalingo in its appellate jurisdiction (hereinafter referred to as the lower Court) delivered on 12th of June, 2017 in Appeal No. TRSJ/67CA/16.
The background facts of this matter are that, at the Chief Magistrates Court of Taraba State holden in Jalingo (hereinafter called the trial Court), the Respondent was charged with the offence of Criminal Intimidation of a certain Police Informant, contrary to Section 397(b) of the Penal Code Act, Cap. P3, Laws of the Federation of Nigeria, 2004. At the end of the trial, in the judgment of the trial Court delivered on 31st of May, 2016, the Respondent was found guilty as charged and sentenced to five months imprisonment but with an option of fine in the sum of five thousand Naira. The Respondent was unhappy with the said judgment of the trial Court and filed an appeal against it to the lower Court on 24th of June, 2016.
The lower Court later on 20th of February, 2017 granted leave to the Respondent to file additional grounds of appeal. The appeal was heard by the lower Court on 27th of February, 2016. On those two days, the Appellant and his counsel were not present in Court. At the said oral hearing of the appeal on 27th of February, 2016, the Respondents counsel adopted his written address filed in substantiation of the appeal and the matter was adjourned for the delivery of the judgment therein. Hence, on the 12th of June, 2017 the lower Court delivered its judgment, allowed the appeal of the Respondent and set aside in its entirety the judgment of the trial Court that was appealed against. In the stunning judgment which can best be described as a default judgment, unknown to criminal law, the lower Court held that because the Appellant did not file a written address in opposition to the written address of the Respondent, the Appellant had conceded to the appeal and the Respondent was thereby entitled to judgment.
The Appellant dissatisfied with the said judgment of the lower Court filed this appeal against it to this Court. The notice of appeal is dated and was filed on 24th of August, 2017.
In it, the lone ground of appeal with its particulars read as follows:
SOLE GROUND
ERROR IN LAW
The Court below erred in law for allowing the appeal and setting aside the decision of the trial Chief Magistrates Court without giving the Respondent, now Appellant, Fair Hearing.
PARTICULARS OF ERROR
a. The Appellant, then Respondent at the Court below was not given sufficient time to prepare and respond to the Appeal.
b. That the inability of the Appellant, then Respondent, to appear during the appeal session was fatal to its case.
c. That the Courts judgment and its ratio decidendi were hinged on inability of the Appellant, then Respondent, to appear and respond to the argument of the Respondent, then Appellant.
In deference to the rules of practice of this Court, briefs of argument of the two parties on both sides of the divide were filed and exchanged by their counsel. The brief of argument of the Appellant dated 2nd of October, 2017, filed on 4th of October, 2017 was settled by Y. N. Akirikwen Esq., the Attorney General of Taraba State. In the brief, the single issue crafted from the lone ground of appeal for the determination of the appeal reads as follows:
Regard being had to the proceedings of the lower court, whether there is a breach of the Appellants right to fair hearing
The brief of argument of the Respondent was filed within time. It is dated 13th of November, 2017, was filed on 17th of November, 2017 and settled by E.I. Chukwu Esq. of the Law Chambers of Ande Musa & Co. In it, the sole issue crafted in the Appellants brief was also adopted for the determination of the appeal by the Respondent.
At the oral hearing of the appeal, the briefs of argument of the parties were adopted by their counsel who urged upon this Court to hold in favour of the parties opposing positions in the appeal respectively.
I have carefully read the briefs of argument of the Appellant and Respondent and given consideration to the submissions of counsel therein including the legal authorities rested on by them in validation of their respective positions in the appeal. I am at one with the parties learned counsel that the sole issue crafted for determination in the Appellants brief of argument and adopted by the Respondent is apt for the just determination of the resolution of the appeal.
As already alluded to by me at the start of this judgment, while the appeal of the Respondent was pending at the lower Court, he filed a motion on notice for the leave of that Court to file additional grounds of appeal. The parties are in agreement that the said motion together with its hearing date were duly served on the Appellant. However, at the oral hearing of the motion on 20th of February, 2017, the Appellant was absent and not represented by counsel. On the said date, the motion was moved by the Respondent, granted by the lower Court and the additional grounds of appeal which had already been filed was deemed properly filed that day, that is, 20th of February, 2017- see page 49 of the record of appeal.
The case was not formally adjourned by the learned lower Court Judges and an order for service of hearing notice on the Appellant, who was absent from the Court and not represented by counsel, was also not made. The lower Court reconvened on 27th of February, 2017 and understandably, the Appellant was again absent from Court and not represented by counsel. Notwithstanding, the Respondent was called upon by the lower Court to argue his appeal. Hence, the learned counsel for the Respondent adopted his written address which had been filed prior to that day.
Thereafter, the lower Court reserved its judgment in the appeal see pages 50 to 51 of the record of appeal. It should be noted that, although the lower Court in its proceedings of 27th of February, 2017 recorded that hearing notice was served on the Appellant, the said hearing notice referred to had to do with the proceedings of 20th of February, 2017 and not in respect of the proceedings of the day, that is, 27th of February, 2017. For as I already adverted to above, hearing notice could not have been served on the Appellant for the hearing of 27th of February, 2017, because the lower Court failed to make an order for such on 20th of February, 2017 and of a fact, the matter was not formerly adjourned on the latter date.
Equally, at the end of the proceedings of 27th of February, 2017, the matter was not adjourned to a specific date for the delivery of judgment and the lower Court again failed to make an order to communicate to the Respondent the next hearing date either that day or in Chambers thereafter, when the judgment was ready for delivery.
The Respondents counsel submitted that the Appellant ought to have taken it upon himself to conduct investigations to know the hearing dates in the matter. He even blamed the Appellant for failing to file a brief of argument in response to the Respondents brief of argument in the appeal at the lower Court. The Respondents counsel further argued that, the Appellant ought to have filed a motion to arrest the judgment of the lower Court before it was read on 12th of June, 2017 on becoming aware that the judgment would be delivered that day. With due respect to the learned counsel for the Respondent, all his referred submissions are lamentably naive as to the relevant laws and quite staggering.
For it is not the duty of a party, especially a defendant/respondent to fish for hearing dates and processes filed in an action/appeal he has been dragged to Court to defend. I have perused the record of appeal, the only document that I am bound by, I cannot see any proof that, the additional grounds of appeal and indeed the brief of the Respondent, labeled Appellants Written Address/Submissions in that appeal, were actually served on the Appellant herein after those processes had been deemed properly filed on 20th February, 2017, the day the Appellant was absent from and not represented by a counsel in Court. Incidentally, the Respondents counsel did not categorically confirm with particular details that those processes were duly served on the Appellant before the hearing of the appeal at the lower Court.
Therefore, the wild submissions in favour of the Respondent that hearing notices and Court processes were served on the Appellant and the rest of them are nothing but bare assertions which are baseless, unsubstantiated and unfounded. It is my very strong view and I hold that the Appellant was also not served with the Respondents additional grounds of appeal and brief of argument to enable him respond thereto appropriately. There is no question in my mind that the Appellant was not given the legally required opportunity to defend the appeal that the Respondent filed against him before the judgment therein was delivered by the lower Court.
It is the duty of the Registry to lodge the processes which Have been filed by parties to an action in the relevant case file, thereby bringing this to the attention of the Judge, give hearing dates after consultation with the Judge in Chambers and liaise with the Bailiff of the Court to effect the service of processes and hearing dates on all the parties in the case. See the cases of: (1) Ajuwa v. S.P.D.C. (Nig.) Ltd. (2008) LPELR-5156 (CA); (2) NITEL Plc. v. Mayaki (2007) 4NWLR (Pt.1023) p.173 and (3) C.C.B. (Nig.) Plc. v. A.-G., Anambra State (1992) 8NWLR (Pt.261) p.528. In the case of: Credit Alliance Financial Services Ltd. V. Mallah (1998) 10NWLR (Pt.569) p.341 at p.348, this Court way back then held that, where the parties are repeatedly absent in Court, just as in the instant matter, the only procedure for the Court to take is to issue hearing notice on the absentee party.
The law is quite trite that, service of hearing notice is fundamental and germane under due process of law. Hence, failure to serve hearing notice renders the proceedings at whatever stage a nullity. See amongst an army of judicial authorities, the cases of: (1) Chief of Naval Staff v. Edeh (2015) LPELR-24581; (2) Onadeko v. U.B.N. Plc. (2005) 4NWLR (Pt.916) p.440; (3) Credit Alliance Financial Services Ltd. V. Mallah (supra); (4) F.B.N.Plc. v. T.S.A. Ind. Ltd. (2015) 11 NWLR (Pt.1470) p.346 and (5) Scott-Emuakpor v. Ukavbe (1975) 12SC p.41. In an earlier decision of this Court per Ngwuta, J.C.A (as he then was, now J.S.C.) in the case of: Leader Olumba Olumba Obu (Roland Obu) v. Etinyin Ededem Archibong (1), it was held in the following very pungent words that:
A hearing notice ought to be served on the appellant and the fatal effect of non-service of the process on the proceedings cannot be mellowed down by the state of mind of the Court or the respondent. It is an infringement of the appellants right to an opportunity to be heard in his defence. See U.B.A. LTD. V. MRS. NGOZI ACHORU (1990) 1 WASC 1 at 3 ratio 8. And in jurisprudence, the infringement of a right gives rise to a remedy at law. See J. E. K. APPIAH V. THE REPUBLIC (1990) 1 WASC 27 AT 28?
Appellant is therefore entitled to have the proceedings declared a nullity as a remedy for a violation of his right to a fair hearing. The proceedings are null and void and I so declare. See F.B.N. PLC. V. OBANDE & SONS ENT LTD. (1998) 2NWLR (PT.538) 410.
None service of hearing notice on the appellant for the hearing on 14/10/2004 is a fatal flaw to the entire proceedings from that date to judgment. It robbed the trial Court of jurisdiction to hear and determine the matter. See SKENCONSULT NIG. LTD. V. UKEY (1981) 1SC 6.
Service of a hearing notice on the appellant in the circumstance of this case is a pre-condition to the exercise of jurisdiction by the Court below and the said Court labored in vain in absence of proof of hearing notice or any other proof that the appellant had knowledge that the case was slated for hearing on 14/10/2004. (The underlining is supplied by me for emphasis).
As I earlier on above adverted to, there is no proof, in the record of appeal, that the Appellant herein had knowledge that the case was slated for hearing on 27th of February, 2017 and for the delivery of judgment on 12th of June, 2017. Consequentially, the proceedings on 27th of February, 2017 and 12th of June, 2017 were fatally flawed. For the lower Court was stripped of jurisdiction to continue with adjudication over the appeal from 27th of February, 2017 to 12th of June, 2017 when judgment was delivered. Failure to notify the Appellant and afford him the opportunity to participate in the proceedings on those days, be heard and represented in the appeal to conclusion by the counsel of his choice was an infraction of his constitutionally guaranteed right to fair hearing in all its ramifications under the fundamental human rights provisions, that is, Section 36, Chapter IV, of the Constitution of the Federal Republic of Nigeria,1999 as amended, the supreme law and grund norm of this country.
Consequently, the proceedings on the said two days are in the eyes of the law, null, void and of no effect and I hold so.
In the case of: F.B.N.PLC. V. T.S.A. IND. LTD. (supra), the Apex Court, on the legal effect of null and void proceedings, held again as follows:
The right to fair hearing is a right guaranteed by Section 36 of the 1999 Constitution, the Supreme law of the country, to every citizen of Nigeria. It cannot be waived neither can its breach acquiesced in. The right to fair hearing is a fundamental and constitutional right of a party to a dispute to be afforded an opportunity to present his case to the adjudicating authority. The right lies in the procedure followed in the determination of a case and not in the correctness of the decision arrived at in the case. As reasoned in the case of: Otapo & Ors. V. Sunmonu & Ors. (1987) 2NWLR (Pt.58) pg. 587 at pg. 605- the Supreme Court held that- A hearing can only be fair when all the parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused hearing or not given an opportunity to be heard, the hearing cannot qualify as a fair hearing. Without fair hearing, the principle of natural justice are (sic) abandoned Ogundoyin v. Adeyemi (2001) 13NWLR (Pt.730) pg. 403, U.B.A. Ltd. V. Achoru (1990 6NWLR (Pt.156) pg. 25
A person who is affected by an order of the Court which can properly be described as a nullity is entitled as a matter of right,ex debito justititiae, to have it set aside in order to meet the end of justice. (The underlining is supplied by me for emphasis).
I hold, for the above set out legal juxtaposition and the conclusion reached by me that the proceedings on 27th of February, 2017 and especially on 12th of June, 2017 including the judgment delivered thereat on the latter date were null and void. The Appellant is entitled as a matter of right, that is, ex debito justititiae, to have the said proceedings set aside See the cases of: (1) Leader Olumba Olumba Obu (Roland Obu) v. Etinyin Ededem Archibong (1) (supra) and (2) F.B.N. Plc. V. T.S.A. Ind. Ltd. (supra). It is my humble but firm view and I hold that, the procedure that culminated in the judgment of the lower Court was legally fraught with unfairness and therefore inequitable.
It is crystal clear from my above enunciations that the sole issue crafted by the Appellant for the determination of the appeal must be and is resolved in favour of the Appellant and against the Respondent. Concomitantly, the appeal is imbued with success and hereby allowed.
The proceedings of the 27th of February, 2017 and 12th of June, 2017 inclusive of the judgment delivered by the lower Court on the latter date are accordingly set aside for being null and void.
Therefore, this matter, that is, Appeal No. TRSJ/67CA/16 filed by the Respondent against the Appellant to the lower Court, is accordingly remitted to the Chief Judge of the High Court of Taraba State to be reassigned to a fresh panel of Judges of that Court other than Hon. Justices Nuhu S. Adi, I. M. Sambo and A. B. Abbare, for expeditious adjudication de novo.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the lead judgment just delivered by my learned brother Oyebisi Folayemi Omoleye JCA.
He has dealt fully with the issues for determination. For the reasons contained in the lead judgment, I too allow the appeal; and abide by the order remitting Appeal No. TRSJ/67CA/16 to the Chief Judge of Taraba State to be re-assigned to another panel of Judges for hearing.
SAIDU TANKO HUSSAINI, J.C.A.: I AGREE
Appearances:
C. R. Shaki (State Counsel II, Ministry of Justice, Taraba State) For Appellant(s)
E. I. Chukwu, Esq. For Respondent(s)
