CONSOLIDATED TIN MINES LTD v. DUNG & ORS (2020)

CONSOLIDATED TIN MINES LTD v. DUNG & ORS

(2020)LCN/14216(CA)

In The Court Of Appeal

(JOS JUDICIAL DIVISION)

On Thursday, May 21, 2020

CA/J/329/2017

Before Our Lordships:

Tani Yusuf Hassan Justice of the Court of Appeal

Mudashiru Nasiru Oniyangi Justice of the Court of Appeal

Boloukuromo Moses Ugo Justice of the Court of Appeal

Between

CONSOLIDATED TIN MINES LTD APPELANT(S)

And

(1) SYLVESTER DUNG (2) JUSTICE ALFRED SAGAI (3) BUREAU FOR LANDS AND SURVEY AND TOWN PLANNING PLATEAU STATE RESPONDENT(S)

RATIO

WHEN WOULD AN ISSUE RAISED BY A PARTY BE SAID TO BE COMPETENT

By this issue, the Respondent is challenging the competence of the two issues distilled by the Appellant in the main appeal. The question that one may ask is when is an issue competent? The general rule is that for an issue to be competent, it must be predicated and originated from a ground or grounds of appeal. Where an issue is not in compliance with the foregoing, such issue will be declared incompetent. See ALATAHA VS ASIN (1999) 5 NWLR (Pt. 601) 32, PUNCH (NIG) LTD V JUMSUM (NIG) LTD (2011) 12 NWLR (Pt. 1260) 162, CONTRACT RESOURCES (NIG) LTD V STANDARD TRUST BANK LTD (2013) 6 NWLR (Pt. 1350) 260. It is trite that an Appellate Court will only hear and determine an appeal based on issue(s) formulated from ground(s) of appeal. Where an issue is not covered by any ground of appeal, such issue is incompetent and will be struck out. See DEACON J.K. OSHATOBA AND ANOR V CHIEF JOHNSON OLUJITAN AND ANOR (2000) 5 NWLR (Pt. 655) 159, AKPELU, OMO V JUDICIAL SERVICE COMMITTEE, DELTA STATE (2000) FWLR (Pt. 20) 676 at 695. For an issue to be competent, it must have enured from a competent ground of appeal and is emanating from the decision appealed against, if not, such will be incompetent and liable to be struck out. SeeOJE V BABALOLA (1991) 4 NWLR 185 at 267, IBRAHIM V OJOMO (2004) 1 SC (Pt. 11) 136, KACHALLA V BANKI (2006) ALL FWLR (309) 1420. PER ONIYANGI, J.C.A.

WHETHER OR NOT GROUNDS OF APPEAL MUST ARISE FROM THE JUDGEMENT O THE COURT APPEALED AGAINST

It is settled principle of law that grounds of appeal must arise or flow from or related to judgment of the Court appealed against. SeeLASISI OGBE V SULE ASADE (2009) 12 SC. (Pt. 111) 37, NDULUE AND 1 ANOR V OJIAKOR AND 2 ORS (2013) 1 -2 SC (Pt. 11) 91, VEEPEE IND. LTD V COCA IND LTD (2008) 4-5 SC (Pt. 1) 116. PER ONIYANGI, J.C.A.

WHETHER OR NOT IT IS THE DUTY OF THE TRIAL COURT TO ISSUE AND SERVE NOTICE OF HEARING

It is also crystal clear that the Court did not sit till 28th day of September, 2015, a period of not less than ten months. In such situation, the duty is on the Trial Court to notify all parties personally of the next date of adjournment. See ATTORNEY GENERAL RIVERS STATE V UDE (2006) 6-7 SC 54, IMMINENT NIGERIA COMPANY V PRUDENTIAL CO-OPERATIVE MICRO FINANCE BANK (NIGERIA) LTD (2014) LPELR 22700. The failure of the Trial Court to issue and serve hearing notice on the Appellant as required by law constitutes a fundamental breach which will entitle the Appellant against whom the order striking out his suit and dismissal of his motion to relist the suit to an order setting aside of the said order. SeeWIMPEY LTD V BALOGUN (1986) 3 NWLR (Pt. 28) 324 at 325, B.O.N LTD V ADEGOKE (2006) LPELR – 7599, TENO ENGINEERING LTD V ADISA (2005) 10 NWLR (Pt. 933) pg. 346 at 353. The law is trite on the failure to serve a party in a case with Hearing Notice. Such failure to serve hearing notice indicating clearly when and where the Court will sit constitutes a fundamental irregularity which will ordinarily vitiate the proceedings and render it a nullity. See SKEN CONSULT (NIG) LTD & ANOR V GODWIN SEKONDY UKEY (1981) 1 SC p. 5, OGBUESHI JOSEPH O. G. ACHUZIA V WILSON FIDELIS OGBOMAH (2016) LPELR – 40050. Proceeding conducted in the absence of issuance and service of Hearing Notice on partie(s) renders such proceedings void. This is so because the Court will lack the jurisdiction to entertain the case where any of the parties is not served. See COMPAGNIE GENERAL D.E GEOPHYSIQUE (NIG) LTD CGG NIG LTD V AMINU (2015) LPELR- 24463, MARK V EKE (2004) 5 NWLR (Pt. 865) p. 54, S AND D CONST. CO. LTD V CHIEF BAYO AYOKU ABD ANOR (2011) LPELR – 2965, NYAMATI ENTERO LTD V N.D.I.C (2006) ALL FWLR (Pt. 915) p. 411. So also, failure to serve a party with Hearing Notice will amount to denial of fair hearing. Fair hearing implies that each party to a dispute before a Court must be accorded adequate opportunity to state his own case. This is the principle of “Audi alteram patem”. See ARIAYEFAH NWAOSU V IBEJIMBA NWAOSU (2000) 4 NWLR (Pt. 653) 351 at 359, OGBUESHI JOSEPH O. G. ACHUZIA V WILSON FIDELIS OGBOMAH (2016) LPELR- 40050. PER ONIYANGI, J.C.A.

WHEN WOULD A DECISION OF THE COURT BE SAID TO BE FINAL

In the case of EBOKAM V EKWENIBE AND SONS LTD (1999) 7 Sc (Pt. 1) 39, the Apex Court of Nigeria gave meaning to a final and interlocutory decision thus:
“a decision can only be regarded as final where the decision clearly and wholly disposes of all the rights of the parties in the case. But where the decision only disposes of an issue or issues in the case, leaving the parties to go back to claim other rights in the Court, then that decision is interlocutory. And in order to determine whether the decision is final or interlocutory, the decision must relate to the subject matter in dispute and not to the function of the Court making the order.”
See also the case of OGOLO V OGOLO (2006) 2 Sc (Pt. 1) 61. A decision of a Court is said to be final when it finally disposes of the right of the parties. See MADAM ABUSATU AGBOGUNLERI V MR JOHN DEPO AND 3 ORS (2008) 1 SCNJ 523, it is also trite that a final order for purposes of appeal can be made in an ordinary application, if it disposes of the right of parties on the particular issue and there is no need for any reference to the Court which made the order. See CLEMENT EZENWOSU V AARON NGONADI (1992) 2 SCNJ 420. Put in another way, if the decision or order given by a Court is such that the matter in respect of which it is given would not be brought back to the Court for further adjudication, such decision or order is final. See HONDA PLACE V GLOBE MOTORS HOLDINGS (2005) 10-11 SCM 56, CHIEF OZO NWANKWO ALOR AND ANOR V CHRISTOPHER NGENE AND ORS(2007) 2 SCNJ 154. Let me add that a decision will be said to be final when the Court that gave the decision has nothing else or nothing more to do with the case to the extent that the Court becomes functus officio. PER ONIYANGI, J.C.A.

MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal was the Plaintiff in suit No. PLD/203/2013 filed against the Respondents as Defendants. The matter came up before the trial Court on 13th day of October, 2014. On that day, two different motions for leave to enter appearance out of time and the other for leave to file joint statement of defence by the 1st and 2nd Respondents respectively filed on 8th August, 2014 were taken by the Trial Court (High Court of Plateau State) sitting in Jos and granted (see pages 24 to 26 of the Record of appeal). Thereafter the substantive matter was adjourned to 24th day of November, 2014 for hearing. The matter did not come up on that date but on 28th day of September, 2015. The reason for this amongst others are the Judicial Staff Union strike and the Court’s Annual Vacation. On that day neither the Appellant nor his Counsel was in Court. Learned Counsel representing the 1st and 2nd Defendants (Respondents) urged the Court to strike out the suit for absence of the Plaintiff. Learned trial judge in exercise of the Court’s discretionary power ruled in favour of the

application and consequently struck out the suit by the Plaintiff (Appellant) for want of diligent prosecution. (See page 27 of the record of appeal).

Upon getting to know that his suit has been struck out, the Plaintiff’s (Appellant’s) Counsel filed a motion for relisting the suit. After regularizing the counter processes by the 1st and 2nd Defendants (Respondents) on 18th day of April, 2016 the motion by the Plaintiff (Appellant) to relist the suit was taken and adjourned to 12th day of May, 2016 for Ruling. In his considered ruling delivered on 12th day of May, 2016 the application by the Plaintiff (Appellant) was refused and in consequence dismissed. Against that order of dismissal hence this appeal which is predicated on the Notice of Appeal dated 8th day of July, 2016 containing five Grounds of Appeal. In paragraph 4 of the said Notice of Appeal, the Appellant sought for the following reliefs (see pages 39 to 42 of the Record of Appeal).

RELIEF SOUGHT
“To set aside the final Ruling/Ruling/Decision dismissing the Motion to relist the suit struck-out on the 28th September, 2014 without Hearing Notice being served on the

Plaintiff/Appellant or its Counsel.”

Parties filed and exchanged their briefs of argument. In the adopted Appellant’s brief of argument filed on 22nd day of January, 2018, the following issues are presented for the determination of the Appeal:
(1) Whether the Trial Court did not err in law in dismissing the Motion on Notice dated 4th December, 2015 and filed 9th December, 2015 to relist the suit that was struck out on the 28th September, 2015 without Hearing Notice issued and or served on the Plaintiff then now Appellant or its Counsel having regards to the antecedent of this case (Grounds 1, 3, 4 and 5).
(2) Whether the Trial Court did not err in law by not giving both parties equal opportunity to be heard on the merit when it struck out for lack of diligent prosecution without any hearing Notice howsoever issued thereby depriving the Appellant of its fundamental right to fair-hearing in its suit as encapsulated in Section 36(6) of 1999 Constitution of Nigeria as amended which occasioned a miscarriage of Justice in the circumstances (Ground 2).

The 1st and 2nd Respondents adopted brief of argument was filed on 23rd day of

July, 2018. Therein he formulated the following lone issue for determination:
“Whether the Trial High Court exercised its discretion not to relist the Appellant’s suit properly i.e. judicially and judiciously.”

Not the foregoing alone, he also registered a Notice of Preliminary Objection pursuant to Order 10 Rule 1 of the Court of Appeal Rule, 2016 challenging the competence of the appeal. The grounds of objection are:
GROUNDS OF OBJECTION
(1) Grounds 1, 2, 3 and 4 are complains against the Trial High Court’s exercise of its discretion and ought to be appealed against by leave of this Court which Appellant has failed to do they are incompetent and liable to be struck out.
(2) Ground 5 is omnibus ground for criminal appeal and not civil so invalid and same ought to be struck out.
(3) Ground 2 has no issue argued on it and same should be deemed abandoned and liable to be struck out.
(4) Issue 1 formulated by the Appellant which apparently lumped together otherwise valid grounds of Appeal with invalid grounds of Appeal and argued together render all the grounds of Appeal and the issue for determination

incompetent.
(5) Issue 2 relates to no ground at all and same is thus incompetent.
(6) Consequent upon all the above, the Appeal itself is rendered incompetent and ought to be struck out.

In respect of the foregoing Grounds of Preliminary Objection, the Respondents formulated the following issues for determination.
(1) Whether the appeal is competent in view of the various defects affecting the Notice and Ground of Appeal.
(2) Whether the two issues formulated by the Appellant are competent considering the defects in them.

The Appellant’s reply to the Preliminary Objection by the Respondent can be found in the Appellant’s reply to the 1st and 2nd Respondents’ brief of argument filed on 22nd November, 2018 and deemed as properly filed and served on 10th day of June, 2019. See paragraphs 2.0 to 3.1 of the said reply brief of argument of the 1st and 2nd Respondents. He did not formulate any different issue for determination but rather, he adopted the issues formulated by the 1st and 2nd Respondents. The two issues formulated by the 1st and 2nd Respondents will therefore be adopted for the determination of the

Preliminary Objection. I will treat the issues in the reverse order. Therefore I will take issue two first and thereafter issue one.

ISSUE TWO
Whether the two issues formulated by the Appellant are competent considering the defects in them.

The contention of the 1st and 2nd Respondents is that this issue is a product of grounds 4 and 5 of the Notice of Preliminary. The issue is to the effect that the two issues formulated by the Appellant in the main appeal are incompetent and as such liable to be struck out. It is the argument of the 1st and 2nd Respondents that the issue formulated on ground 5 of the Appellant in the main is tainted and as such incompetent and liable to be struck out. He added that once an invalid ground of appeal is lumped together with a valid one to make an issue, the said issue is tainted with incompetence and as such would be struck out. He relied on the case of IGBOKWE V EDOM (2015) 8 CAR 224 at 240. He urged the Court to hold that issue one formulated by the Appellant having being tainted with the virus of incompetent ground is itself incompetent and should be struck out. He added that the Appellant’s issue 2 is

also incompetent in that it hinges on no ground of appeal. He added that the claim of the Appellant that he distilled issue 2 from ground two of the Notice of and Ground of Appeal cannot stand because both issue two and ground 2 are at variance and at cross purpose to each other.

Further he said while ground 2 is a challenge to the Trial High Court dismissal of the Appellant’s “Application to relist the suit which was earlier struck out”, the issue two is an attack on the Appellant’s suit which was “struck out for lack of diligent prosecution”. He argued that the Appellant’s issue two does not relate or concern the ground two of its Notice and grounds of appeal. His contention is that while ground two of Appellant’s Notice is about the dismissal of its Motion to relist its earlier struck out suit, issue two is an argument on the merit of striking out the Appellant’s suit which is not the subject matter of this appeal. He submitted that issue two cannot be said to have been distilled from the grounds of the Appellant’s Notice of Appeal.

In consequence, Issue two is without any root from any

ground of appeal and hence incompetent. He added that where an issue does not arise from any of the ground of appeal, it ought to be struck out. He relied on the following cases; LIVESTOCK FEEDS PLC V FUNTUA (2005) ALL FWLR (Pt. 286) 753 at 764 paras. E. F, DIAMOND BANK LTD VS UGOCHUKWU (2007) ALL FWLR (Pt. 384) 290 at 371-318 paras G-A. He urged the Court to find and hold that since the two issues formulated by the Appellant are incompetent and liable to be struck out, the appeal itself has no support and same equally be struck out for being incompetent.

The argument of the Appellant in respect of this issue is that it is sad that the 1st and 2nd Respondents have woefully failed to appreciate the fundamental purpose of the Notice and grounds of appeal and how this Court have treated any error or inelegance in couching of a notice and ground of appeal. He argued further that for the fact that a particular ground of appeal is inelegantly couched, does not defeat the entire substance of the justice and merit of the entire appeal. It is his contention that a notice of appeal can be incompetent and valid if it contains at least one valid ground or grounds of

appeal. He relied on Section 241(2) of the Constitution of the Federal Republic of Nigeria 1999 as amended. He referred to the case of ERISI AND ORS V IDIKA AND ORS (1987) 3 NWLR (Pt. 666) 503 at P. 516. It is his argument that it is a clear misconstruction on the part of the 1st and 2nd Respondents’ Counsel to contend that ground five is incompetent but he conceded that the said ground is inelegantly couched but it carries along with it the basic ingredient that must be present to sustain the omnibus ground of appeal in a civil appeal.

On the issue of issue (2) two which is said not to hang on any ground of appeal, he submitted that the two issues are alleging a breach in the fundamental right to fair hearing of the Appellant when the suit was struck out for want of diligent prosecution. He added that it is the dismissal that the Appellant complained of in his application where he stated that he was not served with any hearing notice. He added that a careful perusal of the particulars on ground two it appear manifest that the issue on the said ground is squarely in tandem with the particular of error being alleged. He urged the Court to

discountenance the Preliminary Objection and resolve all the issue in favour of the Appellant and determine the appeal on merit.

competent, it must have enured from a competent ground of appeal and is emanating from the decision appealed against, if not, such will be incompetent and liable to be struck out. SeeOJE V BABALOLA (1991) 4 NWLR 185 at 267, IBRAHIM V OJOMO (2004) 1 SC (Pt. 11) 136, KACHALLA V BANKI (2006) ALL FWLR (309) 1420.

The complaint of the 1st and 2nd Respondents in this ground of objection is centered on grounds 4 and 5 of the ground of appeal. It is his case that the grounds are incompetent. The question is whether or not the grounds are competent ground that can accommodate the two issues formulated by the Appellant in the main appeal.

The complaint of the Appellant in the main is the absence of service of hearing notice which led to his absence in Court on the day his suit was struck out. Secondly his appeal grounded upon failure of the trial Court to consider his reason for his absence on the day his suit was struck out in the consideration of his application to relist the suit which was dismissed by the Trial Court. Ground 4 of the ground of appeal is challenging the appropriateness or otherwise of the order dismissing the Appellant’s application

to relist his suit struck out. His contention is that the Trial Court erred in not serving him with a hearing notice and for that singular omission, miscarriage of justice is occasioned. Ground 5 is an omnibus ground which described the Ruling of the Trial Court dismissing his motion to relist his suit no. PLD/J210/2003 struck out on 28th September, 2014.

It is this decision of the Court that he said has being taken without recourse to the weight of evidence. The evidence here are affidavit evidence wherein the Appellant averred to the fact that he was not served with any hearing notice as against the conclusion of the Trial Court that he was not diligent in prosecuting the suit when he was absent in Court.

The 1st and 2nd Respondents applicant have not displayed any reasonable cause to show that the two grounds are not complaints emanating from the decision of the Court striking out the suit of the Appellant and subsequently dismissing his application to relist the suit. I find no virus in the grounds of appeal as alleged to render the grounds incompetent. The complaint palpably may be lacking in elegance but not in substance. They are complains

that are brought to life by the decision of the Trial Court striking out the suit and dismissing the Appellant’s application to relist the said suit struck out. It is settled principle of law that grounds of appeal must arise or flow from or related to judgment of the Court appealed against. SeeLASISI OGBE V SULE ASADE (2009) 12 SC. (Pt. 111) 37, NDULUE AND 1 ANOR V OJIAKOR AND 2 ORS (2013) 1 -2 SC (Pt. 11) 91, VEEPEE IND. LTD V COCA IND LTD (2008) 4-5 SC (Pt. 1) 116. The mere fact that the words like “unreasonable” and “unwarranted” are used to favour ground 5 of the ground of appeal which principally is challenging the failure of the trial judge to consider the affidavit evidence before it on the reason for the absence of the Appellant on the date the suit was struck out and which is described and codified as failure of the trial Court to act on the weight of evidence are sufficient and adequate in the circumstance to stem the complaint of the Appellant in issues 1 and 2 in the main appeal. I therefore have no hesitation in coming to the conclusion that the two issues are competent. I resolve issue two of the Preliminary Objection against the

1st and 2nd Respondents.

ISSUE ONE
Whether the appeal is competent in view of the virus affecting the notice and Ground of Appeal.

The 1st and 2nd Respondents grouse against the appeal vide this issue is that the Appellant is challenging the exercise of the discretionary power of the Court not to relist of the suit of the Appellant struck out for non attendance. His contention is that since the suit was struck out in exercise of the discretionary power of the Court, the Appellant ought to seek and obtain the leave of the trial Court to appeal. Added to this is that ground 5 of the ground of appeal is drafted as if the appeal is against the decision in a criminal trial. The question here is whether in the circumstance of the fact of this appeal, leave to appeal is required.

Under Section 241(1) of the Constitution of the Federal Republic of Nigeria, 1999 decisions of Courts or Tribunal that are appealable as of right are specified. Those decisions or orders are those which among others finally put an end to the suit before the trial Court and or renders the trial Court functus officio. Under Section 242 of the same Constitution, appeals

which require leave of Court are provided for. It might be appropriate to distinguish a final and interlocutory decisions. In the case of EBOKAM V EKWENIBE AND SONS LTD (1999) 7 Sc (Pt. 1) 39, the Apex Court of Nigeria gave meaning to a final and interlocutory decision thus:
“a decision can only be regarded as final where the decision clearly and wholly disposes of all the rights of the parties in the case. But where the decision only disposes of an issue or issues in the case, leaving the parties to go back to claim other rights in the Court, then that decision is interlocutory. And in order to determine whether the decision is final or interlocutory, the decision must relate to the subject matter in dispute and not to the function of the Court making the order.”
See also the case of OGOLO V OGOLO (2006) 2 Sc (Pt. 1) 61. A decision of a Court is said to be final when it finally disposes of the right of the parties. See MADAM ABUSATU AGBOGUNLERI V MR JOHN DEPO AND 3 ORS (2008) 1 SCNJ 523, it is also trite that a final order for purposes of appeal can be made in an ordinary application, if it disposes of the right of parties on the

particular issue and there is no need for any reference to the Court which made the order. See CLEMENT EZENWOSU V AARON NGONADI (1992) 2 SCNJ 420. Put in another way, if the decision or order given by a Court is such that the matter in respect of which it is given would not be brought back to the Court for further adjudication, such decision or order is final. See HONDA PLACE V GLOBE MOTORS HOLDINGS (2005) 10-11 SCM 56, CHIEF OZO NWANKWO ALOR AND ANOR V CHRISTOPHER NGENE AND ORS(2007) 2 SCNJ 154. Let me add that a decision will be said to be final when the Court that gave the decision has nothing else or nothing more to do with the case to the extent that the Court becomes functus officio. In the light of the foregoing and the fact of this case leading to this appeal at hand where the trial Court struck out the suit by the Appellant for default in appearance and upon hearing an application to relist the suit dismissed the application to relist, in my candid view has put an end to the right of the Appellant to pursue his cause of action before that Court. That order of dismissal also renders the Trial Court functus officio to entertain any other proceeding in

respect of the suit. Therefore the order dismissing the application to relist the Appellant’s suit struck out by trial Court is a final order in the circumstance of this appeal. Therefore no leave as prescribed under Section 242 of the Constitution of the Federal Republic of Nigeria is required to appeal against that order of dismissal of the Appellant’s suit before the Trial Court. Accordingly, I resolve this issue also against the Respondents.

On the whole, it is my ardent conclusion that the preliminary Objection is meritless, same is accordingly overruled and dismissed.

Now on the substantive appeal:
ISSUE ONE
“Whether the Trial Court did not err in law in dismissing the motion on notice dated 4th December, 2015 and filed 9th December, 2015 to relist the suit that was struck out on the 28th September, 2015 without any hearing notice issued and served on the Plaintiff then now Appellant or its Counsel having regards to the antecedent of this case (Grounds 1, 3, 4 and 5)

The argument of the Appellant’s Counsel on this issue is that the Trial Court’s decision in dismissing the application of the

Appellant to relist the suit is anchored on undue delay in bring the application to relist the suit on the 28th day of September, 2014 in December, 2014. He queried the justification in law possessed by the Trial Court to dismiss the application to relist the suit by the Appellant. He submitted that the reason which supports the application of the Appellant to relist the suit that was struck out for default in appearance was the failure to issue and serve notice on the Plaintiff (Appellant) against that date when the suit was struck out. It is his contention that the conclusion of the Trial Court was hastily arrived at considering the series of adjournments before that date. He referred to the last adjournment on 13th day of October, 2014 to 24/11/2014 when the Court did not sit on the matter until 28th/9/2014 when the matter was struck out without the issuance and service of hearing notice against the date on the Appellant. He submitted that since no notice against the date 28/9/2014 was served on him nor his client, the Court acted without jurisdiction and by that there is a fundamental breach rendering the whole proceedings null and void. He added that

since no Notice of that day was served on the Appellant, there is no way he would have known that the suit has been struck out and for him to apply for the suit to be relisted. He argued that the averments in the affidavit in support of the Motion to relist to the effect that no notice of hearing was served on Appellant against that date were not controverted. He submitted that the principle governing the issuance of hearing notice is cardinal to the assumption of jurisdiction in every suit. He relied on the following cases: ODUTOLA V KAYODE (1994) 2 NWLR (Pt. 324) 710; ALHAJI ABDUKAREEM MANKANU AND 1 OR VS MALAM GARUBA SALMAN (2005) 4 NWLR (Pt. 915) 270. On the need to issue hearing notice on party who absents itself from Court, he relied on the cases of CREDIT ALLIANCE SERVICE LTD V MALLAH (1998) 10 NWLR (Pt. 569) 341, SCOTT EMUAKPOR V UKAVBE (1975) 2 SC 41 at 201. He argued that the failure to serve notice on the Appellants when the Respondent had not obtained an order dispensing with service of such notice render the proceedings a nullity and not merely an irregularity. He relied on the cases of ADEYEMI V LAN AND BANKER (NIG) LTD (2000) 7 NWLR (Pt. 663) 33,

SCOTT-EMUAKPOR V UKAVBE (1975) 2 SC 41, DAWODU V OLOGUNDUDU (1986) 4 NWLR (Pt. 33) 104, ODIJI V OKUDUNMA (1969) NWLR 121 at 302-303. He argued that in the instant case, the suit was adjourned on several occasions and all in the absence of one party such absenting party must be issued with hearing notice. He relied on the cases of CREDIT ALLIANCE FINANCE SERVICE LTD V MALLAH (1998) 10 NWLR (Pt. 569) 341 ADIGUN V ATT. GEN. OF OYO STATE (1987) 1 NWLR (Pt. 53) 678.

On when a Court is competent, he argued that a Court can only be competent if among other things all the conditions precedent for its having jurisdiction are fulfilled. He relied on the cases of OKPOKPO V UKO (1997) 11 NWLR (Pt. 518) 634, SKENCONSULT V UKEY (1981) 1 SC 6. He contended that it is settled law that where service of a process is required, failure to serve is a fundamental vice and the person affected by the order not served with hearing notice or the process is entitled ex-debito justicea to have the order set aside as a nullity because due service of process is a condition sine qua non to have any value. He cited the case ofSKEN CONSULT (NG) V UKEY (1981) 1 SC 6. He submitted that the

conclusions of the Court below at pages 37-38 of the record of appeal are not supported by any demonstrable process of reasoning in law as no reasons or cogent reasons at all were given by the Lower Court as to why it had to dismiss the application to relist the suit that was struck out without any hearing notice after a long period of intervening events other than the Court’s assumption and unsubstantiated reasons advanced by the Court itself and in a blanket form refused the legitimate reliefs sought by the Appellant in its application to relist the suit that was unfairly struck out. He cited the cases of SAGAY V SAJERE (2000) 6 NWLR (Pt. 661) 360, CCB (NIG) LTD V ONWUCHEKWA (2000) 3 NWLR (Pt. 6647) 65 at 68. It is his contention that the failure of the Lower Court to give adequate consideration and value to the affect of non issuance and service of hearing notice caused the Lower Court to misconstrue and misconceive in totality the need to relist the suit. He added that the law is that decision which is the product of such misconception will be set aside on appeal. He relied on the case of ADEJUGBE V OLOGUNJA (2004) 6 NWLR (Pt. 868 46 at 76. On issue

of miscarriage of justice, he referred to the case of GBADAMOSI V DAIRO (2007) 3 NWLR (Pt. 1021) 282. He urged the Court to set aside the final ruling of the Lower Court and resolve the issue in favour of the Appellant.

On behalf of the 1st and 2nd Respondents, it is submitted that the Trial Court exercised its discretion properly in the circumstances of the Appellant’s motion and the Court is urged to uphold and affirm the ruling being appealed against. He argued that it is well settled that a party seeking the indulgence of Court must put forward materials sufficient enough to warrant the said Court to grant to such party the indulgence sought. He relied on the cases of WILLIAMS V HOPE RISING (1982) 1 ALLNLR (Pt. 1) 1 and GENERAL AVIATION SERVICE LTD V CAPTAIN PAUL THAHAL (2004) ALL FWLR (Pt. 211) 1368.

Referring to the averments in the affidavit in support of the application to relist the suit struck out by the Appellant i.e. (para. 1a-d) and also (paragraph 4) of the Respondent’s, learned Counsel representing the Respondent submitted that the materials presented to the Court by the Appellant are not only just misrepresentation of fact

but a complete set of falsehood regarding the averred fact that the matter was before another judge before the suit was assigned to Hon. Justice C.L. Dabup. On the issue of lack of service of Hearing Notice, he contended that the assertion is false and that all parties were served when the notice was pasted on the Notice Board of the Main High Court Complex. He also challenged the affirment to the effect of JUSUN Strike which dates he said is not correct. For all the foregoing, he submitted that the reasons given by the Appellant for delay in applying for relisting of the suit is not convincing nor tenable. He contended that the Trial Court was right when it concluded that:
“The Appellant appears not to be abreast with the fact of this case.”

It is his case that the Appellant has not appealed against this pronouncement by the Court. He urge the Court to hold that the finding of the Trial Court based on the exercise of Court discretion dismissing the Appellant’s Motion is proper. The Appellant failed to present materials for the trial Court to grant his application hence the Court’s exercise of its discretionary power is based on

judicial and judicious consideration. He relied on the case of ERONINI VS IHEUKO (1989) 2 NWLR (Pt. 10) 46, CHEVRON NIGERIA LTD V S.O ENIOYE (2005) ALL FWLR (Pt. 265) 1168 at 1171. He added that the Trial Court did carry out its discretionary duty properly in deciding the Appellant’s application that the Appellant did not act diligently in pursuing his action before the trial Court. This he said is evidence by the reaction of the Appellant of not filing the application in issue till after three months from when the suit was struck out. Reacting generally to the argument proffered by the Appellant in his brief of argument, he submitted that the argument is misconceived and completely baseless. In his view, the totality of the Appellant’s arguments are not attacks or challenge to the life issue in the appeal to persuade the Court to exercise its discretionary power in his favour. He added that all the Appellant relied upon is his informed notion that he was not served with Hearing Notice before his suit was struck out. The belief of the Appellant in that regard is a misconception of the law. It is his contention that to relist a suit struck out, he

added that there must be materials placed before the Court upon which the exercise of discretion will be predicated. He cited the case of HARUNA V MODIBBO (2004) 16, NWLR (Pt. 900) at 538-539 paras. G-B. He urged the Court to discountenance all the Appellant’s submission tending to challenge the order striking out the suit by the Trial Court. Finally, he urged the Court to dismiss the appeal.

Considering the foregoing argument for and against in respect of this issue by parties, the question I consider germane is whether or not the Trial Court was right in dismissing the Appellant motion to relist his suit struck out on 28th day of September, 2015 for default in appearance of the Appellant and his Counsel. In brief, the contention of the Appellant is that since after the last sitting of the Court on 13th October, 2014 and on which date the suit was adjourned to 24th day of November, 2014 the Court did not sit due to the reasons amongst others, the strike by the staff of the Judiciary nationwide and the Annual Vacation of the Superior Courts in Plateau State. Since the Court did not sit on the 24/11/2014, there is no Hearing Notice served on him

intimating him that the Court would sit on the matter on 28/9/2015 when the suit was struck out. For the Respondent, it is contended that there was notice pasted on the Notice Board of the Court intimating litigants of the scheduled dates for their cases. It is also the considered view of the Trial Court that the application to relist the suit dated 4/12/2015 and filed on 9th December, 2015 was filed at a time too late.

As, I said before the main contention of the Appellant is that no Hearing Notice was issued and served on the him before the suit was struck out. That is to say that the Appellant was not served with any Hearing Notice before the suit was struck out.

A careful reading of the averments in paragraphs 5 and 6 of the affidavit in support of the motion on notice to relist the suit struck out encompasses the fact and alleged complaint of no service of Hearing Notice on the Appellant. The contention of the Respondent was to contest the date when the strike by the junior staff of the judiciary took place and that the matter was never before any other judge other than the trial judge (Hon. Justice Dabup) and the date for the Court vacation.

To me, the fact that the Trial Court did not sit since the last adjournment on 24/11/2014 and not until 28th September, 2015 when the suit was struck out is not in dispute. It cannot also be said that the strike by the junior staff of the judiciary did not take place and that the Court did not proceed on annual vacation. These are notorious facts relevant to this appeal and which fact can be judicially noticed because both occurred in the judiciary. Not this alone, there was nothing in the record of the Court to show that Hearing Notice was issued and served on the Appellant suggesting that the suit was listed for hearing on that date. Considering the fact of this case, it is not disputable that the Court did not sit on the scheduled date i.e. 24/11/2014. It is also crystal clear that the Court did not sit till 28th day of September, 2015, a period of not less than ten months. In such situation, the duty is on the Trial Court to notify all parties personally of the next date of adjournment. See ATTORNEY GENERAL RIVERS STATE V UDE (2006) 6-7 SC 54, IMMINENT NIGERIA COMPANY V PRUDENTIAL CO-OPERATIVE MICRO FINANCE BANK (NIGERIA) LTD (2014) LPELR 22700. The failure of

the Trial Court to issue and serve hearing notice on the Appellant as required by law constitutes a fundamental breach which will entitle the Appellant against whom the order striking out his suit and dismissal of his motion to relist the suit to an order setting aside of the said order. SeeWIMPEY LTD V BALOGUN (1986) 3 NWLR (Pt. 28) 324 at 325, B.O.N LTD V ADEGOKE (2006) LPELR – 7599, TENO ENGINEERING LTD V ADISA (2005) 10 NWLR (Pt. 933) pg. 346 at 353. The law is trite on the failure to serve a party in a case with Hearing Notice. Such failure to serve hearing notice indicating clearly when and where the Court will sit constitutes a fundamental irregularity which will ordinarily vitiate the proceedings and render it a nullity. See SKEN CONSULT (NIG) LTD & ANOR V GODWIN SEKONDY UKEY (1981) 1 SC p. 5, OGBUESHI JOSEPH O. G. ACHUZIA V WILSON FIDELIS OGBOMAH (2016) LPELR – 40050. Proceeding conducted in the absence of issuance and service of Hearing Notice on partie(s) renders such proceedings void. This is so because the Court will lack the jurisdiction to entertain the case where any of the parties is not served.

See COMPAGNIE GENERAL D.E GEOPHYSIQUE (NIG) LTD CGG NIG LTD V AMINU (2015) LPELR- 24463, MARK V EKE (2004) 5 NWLR (Pt. 865) p. 54, S AND D CONST. CO. LTD V CHIEF BAYO AYOKU ABD ANOR (2011) LPELR – 2965, NYAMATI ENTERO LTD V N.D.I.C (2006) ALL FWLR (Pt. 915) p. 411. So also, failure to serve a party with Hearing Notice will amount to denial of fair hearing. Fair hearing implies that each party to a dispute before a Court must be accorded adequate opportunity to state his own case. This is the principle of “Audi alteram patem”. See ARIAYEFAH NWAOSU V IBEJIMBA NWAOSU (2000) 4 NWLR (Pt. 653) 351 at 359, OGBUESHI JOSEPH O. G. ACHUZIA V WILSON FIDELIS OGBOMAH (2016) LPELR- 40050. The Appellant haven not been properly notified of the sitting of the Court on 28th day of September 2015 rendered the proceeding conducted on that day a nullity. The issue of the hearing notice purportedly pasted on the Court’s Notice Board as contended by the Respondent in my humble view is a substituted service as against the personal service of the Hearing Notice prescribed by law is of no moment. On that note, I am of the fervent view that the Appellant was not issued with the proper and

necessary Hearing Notice of the sitting of the Court of 28th day of September, 2015. I therefore answer the question in the negative and hence the issue is resolved against the Respondents.

The resolution of this issue also provide answer to the question posed in issue two which substantially dwell on failure to issue Hearing Notice and which negates the provision of Section 36(6) of the Constitution of the Federal Republic of Nigeria, 1999 on fair hearing. I therefore adopt my reasoning and conclusion reached in issue one and apply same to issue 2. Therefore the consideration of issue two becomes otiose.

In view of the foregoing, this appeal is adjudged meritorious and it is accordingly allowed. In consequence, I make the following orders.
(1) Both rulings of the High Court of Justice Plateau State delivered on the 28th day of September, 2015 striking out suit number PLD/J203/2014 and that dismissing the motion on notice to relist the said suit delivered on the 12th day of May, 2016 respectively are hereby set aside.
(2) Suit number PLD/J203/2014 is hereby restored and relisted.
(3) The Hon. Chief Judge, Plateau State is hereby

directed to reassign the said suit to another judge other than Hon. Justice C. L. Dabup for expeditious hearing and determination.
(4) Parties to bear their respective costs.

TANI YUSUF HASSAN, J.C.A.: I agree with the lead judgment just delivered by my learned brother, MUDASHIRU NASIRU ONIYANGI, JCA.
Parties to bear their respective costs.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother MUDASHIRU NASIRU ONIYANGI, J.C.A., and I am in agreement with him that the appeal is meritorious and should be allowed.

I am also in agreement with all the consequential orders contained in the lead judgment including costs.

Appearances:

L. Madauci Esq., with him, A. Y. Shagaya Esq. For Appellant(s)

Francis N. Okafor Esq., with him, Peris Shiktu Esq. and Leah Okafor Esq. For Respondent(s)