FIRST BANK OF NIGERIA PLC v. COL. RICHARD V.I. ASOM & ORS
(2011)LCN/4532(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 11th day of May, 2011
CA/J/188/2004
RATIO
PRINCIPLE OF FAIR HEARING: ESSENCE ACCORDING FAIR HEARING TO PARTIES IN A MATTER
Fair hearing is a basic and fundamental principle of the administration of justice. No decision can be regarded as valid unless the trial judge has heard both sides. Audi alteram partem is one of the two pillars upon which the principles of natural justice rest. Once there is a denial of the right to be heard, an appellate court does not concern itself with the reasons for its breach or the consequences of the said breach. It has no alternative but to allow the appeal against the decision and treat it as though there has been no hearing. SEE TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 9 SCNJ 1: 4 NWLR (PT. 117) 517: VICTINO FIXED ODDS V. OJO (2010) 41 NSCOR 991. PER UCHECHUKWU ONYEMENAM, J.C.A
APPLICATION FOR ADJOURNMENT: WHETHER WHERE THERE IS AN APPLICATION FOR ADJOURNMENT, THE JUDGE MUST DECIDE ON IT ONE WAY OR THE OTHER BEFORE TAKING FURTHER STEPS
A letter for an adjournment is an application before a court which must be heard on the merits and decided upon before proceeding with the case. When a court fails to hear an application for an adjournment on the merits but takes further steps in the case the court will be guilty of a breach of the party’s constitutional right to fair hearing. Where there is an application for adjournment the judge must decide on it one way or the other before taking further steps. When a judge refuses an adjournment he must call on the parties to proceed and if a party is unable to proceed the judge is entitled in law to make an appropriate order in the circumstances. SEE UCHE V. OBINYA (SUPRA): IN RE: ALASE (2002) 10 NWLR (PT 776) 553. PER UCHECHUKWU ONYEMENAM, J.C.A
FAIR HEARING: THE CRITERIA FOR DETERMINING THE OBSERVANCE OF FAIR HEARING IN TRIALS
The criteria for determining the observance of fair hearing in trials is not the question whether any injustice has been occasioned on any party due to want of hearing. It is rather whether an opportunity of hearing was afforded to parties entitled to be heard. The rationale for this is aptly summed up in the maxim qui aliquid statuerit parte inaudita alteraa equum licet dixerit hand aequum facerit, which postulates that he who determines any matter without hearing both sides, though may have decided rightly, has not done justice. See ADELEKE V. RAJI (2002) 13 N.W.L.R. (PT. 783) 142: UBN V. ASTRA BUILDERS (2010) 41 NSCOR 1016. PER UCHECHUKWU ONYEMENAM, J.C.A
DISCRETIONARY POWERS OF COURT: HOW THE DISCRETIONARY POWERS MUST BE EXERCISED
Discretionary powers must be exercised according to common sense and in accordance with justice. There are no hard and fast rules regarding the exercise of judicial discretion but the need to do substantial justice with a view of ensuring hearing on merits without afflicting injustice which cannot be compensated with the award of cost on the adverse party is the determinant factor. Courts and indeed all ministers in the temple of justice must always bear in mind that in the exercise of discretionary power such as the relistment of a suit that has been struck out, the general guiding principles of law must be the consideration of doing justice to all the parties in the dispute. It is for this reason that the facts of each case and not previous decisions play a more prominent role in the exercise of discretionary powers. SEE UBN V. ASTRA BUILDERS (SUPRA): LONG JOHN V. BLAKK (SUPRA): EHIDIMHEN V. MUSA (2000) 4 SC (PT 11) 166. PER UCHECHUKWU ONYEMENAM, J.C.A
INTERFERENCE WITH THE EXERCISE OF DISCRETION: INSTANCES WHERE AN APPELLATE COURT WILL INTERFERE WITH THE EXERCISE OF THE DISCRETIONARY POWERS OF A LOWER COURT
The appellate court would not interfere with the exercise of the discretionary powers of a lower court except when such exercise occasions a miscarriage of justice. A very good instance is when as in the instant case, the exercise of judicial discretion by the trial judge has the effect of driving a litigant away from the temple of justice without hearing her case on the merits. The procedure followed and not the correctness of the decision is the interest of fair hearing. This is why where a court arrives at a correct decision in breach of the principles of fair hearing, an appellate court will sacrifice the correct decision on the altar of fair hearing. SEE ORUGBO v. UNA (2002) FWLR (PT. 127) 1024 AT 1037: UBN v. ASTRA BUILDERS (SUPRA). It was held in: Kotoye v. C.B.N. (1989) 1 NWLR (98) 419 @ 448 B-D as follows: “For the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing. Once an appellate court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the order or judgment thus entered is bound to be set aside. This is because such an order is against the rule of fair hearing, one of the twin pillars of justice, which is expressed by the maxim audi alteram partem. PER UCHECHUKWU ONYEMENAM, J.C.A
JUSTICES
K.M.O KEKERE-EKUN Justice of The Court of Appeal of Nigeria
A.A.B. GUMEL Justice of The Court of Appeal of Nigeria
U. ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
1. FIRST BANK OF NIGERIA PLC – Appellant(s)
AND
1. COL. RICHARD V.I. ASOM
2. MRS. VICTORIA ASOM
3. BEM HOTELS LIMITED – Respondent(s)
UCHECHUKWU ONYEMENAM, J.C.A (Delivering the Leading Judgment): The appellant has brought this appeal against the decision of the High Court of Justice Benue State sitting at Makurdi delivered on 24th day of October, 2003. The decision of the said high court dismissed Motion No. MHC/938M/2002 seeking to relist Suit No. MHC/288/95 struck out on 15/10/2001. The appellant filed notice and grounds of appeal dated 21/11/2003.
The brief facts are as follows:
The appellant a public limited company instituted legal action against the respondents on 12th day of December, 1995 on the undefended list –
Suit No. MHC/288/95. The respondents filed their memorandum of appearance on 9/1/96 followed by notice of intention to defend the suit on 10/1/96. On 22/11/96 the appellant filed a statement of claim but the record does not show that the respondents filed any defence.
Between the institution of Suit No. MHC/288/95 in December 1995 and 24/10/2003 when the trial court dismissed Motion No.MHC/938M/2002, the suit was struck out twice on 17/4/2000 and 15/10/2001 respectively for want of prosecution. Motions to relist the suit were filed three times, the last which was Motion No. MHC/938M/2002 dated and filed 21st November 2002 is the subject matter of this appeal. When the motion came up for hearing on 24th October, 2003 the counsel for the respondents, A.F. Nyinya wrote for an adjournment on ground of ill health. The learned trial judge did not rule on the application for adjournment rather he proceeded in his bench ruling to dismiss the motion on the ground that the appellant was not diligent or serious with the prosecution of the suit.
The bench ruling of the lower court which this appeal challenges is as reproduced hereunder;
“Court: It is on record that the suit was on 15.10.01 struck out for “want of seriousness”. There was an attempt to relist the suit. The motion to that effect was on 30.7.02 withdrawn by the counsel for the plaintiff. The motion was then struck out. This instant motion by another counsel seeks to have the suit re-listed because the plaintiff is now more serious since 15/10/2001. The former counsel is blamed for withdrawing the motion on 30/7/2002.
There should be an end to litigation. By counsel withdrawing the motion for relisting of the suit there is an impression that the matter is over. The plaintiff seems to be, through various counsels, approbating and re-probating.
I do not see how the Court can be used for that purpose more particularly that there is evidence of indiligence or unseriousness of the plaintiff.
This motion is accordingly dismissed.”
The appellant’s notice of appeal contains four grounds of appeal. In line with rules of this court, briefs were duly filed and exchanged. In the appellant’s brief prepared by Chief S.O. Agbo dated 31/8/04 and filed 3/9/04, the following two issues were formulated as arising for determination in this appeal:-
1. “Whether the trial judge was right in dismissing the motion for relistment no. MHC/938M/2002 without first ruling on the application for an adjournment before it or hearing the motion on its merit and thereby denying the appellant the right to fair hearing and or having its case decided on its merit.
2. Whether the trial judge was right when he stated that there is evidence of indiligence or unseriousness on the part of the plaintiff in the circumstances of this case and thereby dismissing the motion for relistment even when counsel to the appellant was present in court and did not apply for an adjournment.”
The respondent however submitted in their own brief prepared by T. Oscar Aorabee Esq, that only one issue arises for determination and it is as follows;
“Whether or not, the Trial court rightly exercised its unfettered discretion in dismissing the Appellant’s application to relist suit no. MHC/288/95, before it”.
At the hearing of the appeal on 4/4/11, Chief S.O. Agbo learned counsel for the appellant adopted and relied on the appellant’s brief with additional authorities dated 19/1/09 and filed on 20/1/09 to urge the court to allow the appeal. Mr. S.A. Ngavan, learned counsel for the respondents leading Mrs. Esther Onoja adopted and relied on the respondents’ brief to urge the court to dismiss the appeal. I adopt the issues as framed by the appellant’s counsel in the determination of this appeal.
On issue no. 1, it is the submission of the appellant’s counsel that the learned trial judge erred in law by dismissing motion No: MHC/938M/2002 for relistment without first ruling on the application for an adjournment by respondent’s counsel before it. Counsel submitted that this amounts to a breach of the Constitutional provision of fair hearing. He relied on: UCHE V. OBINYA (2002) FWLR (PT 92) 1728 AT 1735: CHRISDON IND. LTD V. AIB LTD (2002) FWLR (PT.128) 1355 AT 1374. He submitted that the lower court is enjoined by law to consider the motion on its merit before making an order of dismissal. Counsel further submitted that since the court did not call on the counsel for the appellant to move his motion but proceeded suo motu to dismiss the application, the approach is wrongful and unconstitutional. He referred to: SALE V. MONGUNO (2002) FWLR (PT. 87) 671 at 674: ORUGBO V. UNA (2002) FWLR (PT.127) 1027 AT 1037: DENCA SERVICES LTD v. CROSS MARINE SERVICES LTD (2002) FWLR (PT. 86) 490 AT 509.
The respondents’ counsel submitted that failure of the court to rule on the application for adjournment by respondents’ counsel cannot amount to a breach of the appellant’s constitutional right to fair hearing. That the authorities cited on that point would have been relevant only if it was the appellant that applied for an adjournment. He therefore urged the court to discountenance the said authorities. Furthermore counsel submitted that there is no letter for an adjournment on the records compiled and transmitted to this court by the appellant and this court is bound by the record. Counsel argued that the record shows the appellant’s counsel moved the motion for relistment before the learned trial judge ruled. He referred to pages 42 – 43 of the record.
The summation of issue no. 1 which arises from ground 1 as argued above by learned counsel is whether the appellant was given fair hearing by the lower court. Fair hearing is a basic and fundamental principle of the administration of justice. No decision can be regarded as valid unless the trial judge has heard both sides. Audi alteram partem is one of the two pillars upon which the principles of natural justice rest.
Once there is a denial of the right to be heard, an appellate court does not concern itself with the reasons for its breach or the consequences of the said breach. It has no alternative but to allow the appeal against the decision and treat it as though there has been no hearing. SEE TUKUR V. GOVERNMENT OF GONGOLA STATE (1989) 9 SCNJ 1: 4 NWLR (PT. 117) 517: VICTINO FIXED ODDS V. OJO (2010) 41 NSCOR 991.
I agree with the respondent’s counsel that the appellant did not apply for an adjournment on 24/10/2003 neither is there any letter for adjournment by the respondents’ counsel in the record transmitted to this court. However I want to observe that the record of proceedings of the lower court on 24/10/2003 forms part of the record transmitted to this court. The trial judge recording the courts proceedings on 24/10/2003 stated as follows:
“24.10.03
Parties absent
S.O. Agbo for plaintiff/Applicant.
Clerk: Hearing Notice was issued. Mr. A.F. Nyinya counsel for defendants/respondents has written for adjournment. He says he has eye problems” See page 42 of the record.
The record of proceedings of the lower court on 24/10/03 shows that the respondents’ counsel wrote a letter for an adjournment. The submission of learned counsel for the respondents that there is no record that the respondents’ counsel applied for an adjournment is therefore misconceived and not tenable.
I equally agree with Mr. Aorabee for the respondents that the case of CHRISDON V. AIB LTD (2002) FWLR (PT 128) 1355 is not apposite. In the instant case the appellant’s counsel was in court and it was the respondents’ counsel that wrote for an adjournment. Ex diverso I am swayed by the submission of Chief S.O. Agbo that the position of the law enjoins a court to consider an application for an adjournment before proceeding with the case. A letter for an adjournment is an application before a court which must be heard on the merits and decided upon before proceeding with the case. When a court fails to hear an application for an adjournment on the merits but takes further steps in the case the court will be guilty of a breach of the party’s constitutional right to fair hearing. Where there is an application for adjournment the judge must decide on it one way or the other before taking further steps. When a judge refuses an adjournment he must call on the parties to proceed and if a party is unable to proceed the judge is entitled in law to make an appropriate order in the circumstances. SEE UCHE V. OBINYA (SUPRA): IN RE: ALASE (2002) 10 NWLR (PT 776) 553. It is apparent from the record that the respondents’ counsel applied for an adjournment on ground of ill health. The lower court did not consider nor rule on the application for an adjournment before dismissing the motion for relistment before it. This is not in consonance with the principle of fair hearing and as such infringes on the constitutional right of the parties. The provision of Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria relating to fair hearing incorporates the audi alteram partem rule. This principle of fair hearing prohibits a court from making orders that affect the interest of a party without hearing from the parties to the action. The criteria for determining the observance of fair hearing in trials is not the question whether any injustice has been occasioned on any party due to want of hearing. It is rather whether an opportunity of hearing was afforded to parties entitled to be heard. The rationale for this is aptly summed up in the maxim qui aliquid statuerit parte inaudita alteraa equum licet dixerit hand aequum facerit, which postulates that he who determines any matter without hearing both sides, though may have decided rightly, has not done justice. See ADELEKE V. RAJI (2002) 13 N.W.L.R. (PT. 783) 142: UBN V. ASTRA BUILDERS (2010) 41 NSCOR 1016. In the circumstances, it is my view that the trial judge erred in law when he proceeded to dismiss the motion pending before him without first ruling on the application for adjournment.
Learned counsel for the appellant submitted that it was wrongful and unconstitutional for the learned trial judge to proceed to dismiss the application for relistment for want of seriousness on the part of the appellant even when appellant’s counsel was in court and was not called upon to move the motion. Conversely, it was learned counsel for respondents’ contention that it was after counsel for the appellant had argued the motion that the lower court ruled on the motion dismissing it dismissing it. He referred to pages 42 – 43 of the record. For better understanding, it will be appropriate to reproduce the proceedings of the lower court on 24/10/03 but without the bench ruling which had earlier been reproduced in this judgment. It is as follows;
“24.10.03
Parties absent
S.O. Agbo for plaintiff/Applicant.
Clerk: Hearing Notice was issued. Mr. A.F. Nyinya counsel for defendants/respondents has written for adjournment. He says he has eye problems.
Agbo: I am aware of Mr. Nyinya’s problems. The suit was struck out for want of prosecution by the plaintiff on 15/10/2001. The applicants have now filed an application for re-listing averring that they are now serious and that they want to pursue the motion. The present application was filed on 21:11:2202. Before then application No. MHC/551m/02 was filed on 27.6.02 to relist the suit. It was withdrawn and struck out on 20.7.02. Aggrieved by counsel’s decision plaintiff decided to change counsel. Hence Mr. Akubo’s brief.
The suit was not dismissed but mere struck out. We should be given an opportunity to have the matter heard.” See pages 42-43 of the record.
Even under a microscopic view, I have failed to see where in the said record the trial judge called on the appellant’s counsel to move the motion or where the motion in issue was heard. At best what is on record is a brief history of the position of the suit sought to be relisted as given by the appellant’s counsel. The contention of the respondents’ counsel on this point, to me is a mirage. I hold that the learned trial judge did not hear the parties before he dismissed the motion.
I commend the brilliant submissions of the learned counsel for the respondents on the lower court’s unfettered discretion under Section 6(6) of the 1999 Constitution of the Federal Republic of Nigeria to grant, refuse by way of striking out or outright dismissal of any application before it. His submissions that the discretion of the lower court is not based on rules of court, that the court is not bound by judicial precedent in the exercise of its discretion and the fact that the appellate court is slow to interfere with the exercise of the discretion of the trial court, all represent the position of the law. The following cases were cited: IVBIYARO V. FRANCIS (2002) 1 NWLR (PT 741 33 AT 44: LONG JOHN V. BLAKK (1998) 6 NWLR (PT.555) 142; EASTERN BREWERIES V. INUEN (2000) 3 NWLR (PT. 650) 663 AT 673 – 674. As brilliant and persuasive as the submissions of the learned counsel on the position of the law in the exercise of a court’s discretionary powers appear, it must be noted that in the exercise of a court’s discretionary powers the principle of fair hearing must be followed. Discretionary powers must be exercised according to common sense and in accordance with justice. There are no hard and fast rules regarding the exercise of judicial discretion but the need to do substantial justice with a view of ensuring hearing on merits without afflicting injustice which cannot be compensated with the award of cost on the adverse party is the determinant factor. Courts and indeed all ministers in the temple of justice must always bear in mind that in the exercise of discretionary power such as the relistment of a suit that has been struck out, the general guiding principles of law must be the consideration of doing justice to all the parties in the dispute. It is for this reason that the facts of each case and not previous decisions play a more prominent role in the exercise of discretionary powers. SEE UBN V. ASTRA BUILDERS (SUPRA): LONG JOHN V. BLAKK (SUPRA): EHIDIMHEN V. MUSA (2000) 4 SC (PT 11) 166.
The appellate court would not interfere with the exercise of the discretionary powers of a lower court except when such exercise occasions a miscarriage of justice. A very good instance is when as in the instant case, the exercise of judicial discretion by the trial judge has the effect of driving a litigant away from the temple of justice without hearing her case on the merits. The procedure followed and not the correctness of the decision is the interest of fair hearing. This is why where a court arrives at a correct decision in breach of the principles of fair hearing, an appellate court will sacrifice the correct decision on the altar of fair hearing. SEE ORUGBO v. UNA (2002) FWLR (PT. 127) 1024 AT 1037: UBN v. ASTRA BUILDERS (SUPRA). It was held in: Kotoye v. C.B.N. (1989) 1 NWLR (98) 419 @ 448 B-D as follows:
“For the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing. Once an appellate court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the order or judgment thus entered is bound to be set aside. This is because such an order is against the rule of fair hearing, one of the twin pillars of justice, which is expressed by the maxim audi alteram partem.”
In the present case, it is my conclusion that the trial judge who did not hear the parties on the motion for relistment but proceeded to dismiss same ran amuck with the principles of fair hearing and as such the exercise of his discretionary power being in breach of the constitutional rights of the parties is a nullity. Accordingly, I have no restraint to interfere with the decision of the trial court. Without more, I resolve issue No. 1 in favour of the appellant.
Having found that the appellant’s right to fair hearing was breached and proceedings a nullity, a consideration of issue no. 2 becomes academic. Accordingly the appeal succeeds. I allow it and set aside the decision of the High Court of Justice of Benue State, Makurdi dated 24th October, 2003 in suit no. MHC/288/95 which dismissed motion no. MHC/938M/2002 seeking relistment of the suit. I order that the matter be heard on its merits before another judge of the High Court of Benue State. I award costs of N50, 000.00 in favour of the appellant.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have had the privilege of reading draft judgment of my learned brother, Onyemenam, JCA just delivered. His lordship has meticulously considered and resolved the main issue in contention in this appeal. I agree with his reasoning and conclusion that the appeal is meritorious and ought to be allowed.
The right to fair hearing is so fundamental to any adjudication that its absence vitiates the entire proceedings no matter how well conducted or how sound the decision reached therein. In Newswatch Communications Ltd V. Atta (2006) 12 NWLR (1993) 144 @ 170H – 171 B, the Supreme Court per Tobi, Justice of the Supreme Court stated thus;
“The constitutional principle of fair hearing is for both parties in the litigation. It is not only for one of the parties. In other words fair hearing is not one-way traffic but a two-way traffic in the sense that it must satisfy a double carriage-way, in the con of both the plaintiff and the defendant or both the appellant and the respondent. The court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be justice. That will be injustice.”
See also: Salu V. Egeibon (1994) 6 NWLR (348) 23 @ 40 Ceekay Traders us G.M. Co. Ltd (1992) 2 NWLR (222) 132.’
I agree with my learned brother in the lead judgment that the learned trial Judge erred in failing to rule on the request for an adjournment and proceeding to dismiss the pending application to relist the suit without calling on the plaintiff’s counsel who was present in court to proceed with his application. In the event that he was unwilling or unable to proceed the court would have then been justified to strike out the application for want of diligent prosecution.
For these and the more detailed reasons given in the lead judgment I also allow the appeal. I abide by the consequential orders therein including the order on costs.
ALI ABUBAKAR BABANDI GUMEL, J.C.A: I have had the privilege of reading before now the lead judgment just delivered by my learned brother Onyemenam, JCA.
I agree with all the reasons and conclusions very ably set out in the judgment. I wish to only add and emphasise that from a reading of the entire record of appeal and the proceedings of the lower Court, there was no indication that the Defendants/Respondents had filed their pleadings to the claim of the Plaintiff/Appellant. It was therefore quite premature and, in my view, inappropriate in the circumstance to dismiss the application for the re-listment of the suit of the Appellant at the lower Court. For this, and all the other reasons set out in the lead judgment, I am of the view that in dismissing the motion for relistment the learned trial failed to exercise his discretion judicially and judiciously in line with judicial practice and ethics. I too, would allow this appeal. I abide by all the consequential orders of my learned brother, including the order for costs.
Appearances
CHIEF S.O. AGBOFor Appellant
AND
S.A. NGAVAN ESQ
MRS. ESTHER ONOJAFor Respondent
