GITTO COSTRUZIONI GENERALI NIGERIA LIMITED & ANOR V. UMOH EFFIONG ETUK & ANOR
(2013)LCN/6100(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 17th day of April, 2013
CA/C/181/2010
RATIO
“The constitution did not define what amounts to “miscarriage of justice” for the purposes of the provisions on addresses by parties after the close of evidence in a case. However, the phrase has been judicially defined by the Supreme Court in several cases, among which is Larmie v. D.P.M.S. Ltd. (2005) 12 SC (Pt.1) 93 at 107 where it said:- “The terms “miscarriage of justice” has been variously defined but its essence is that it is the decision or outcome of legal proceedings that is prejudicial or inconsistent with substantial rights of a party. As it is used in constitutional standard of reversible error in judgment, miscarriage of justice means a reasonable probability of more favourable outcome for the defendant.” See also Nnajifor v Ukonu (1986) 4 NWLR (36) 505; Ojo v Anibire (2004) 5 SC (Pt.1) 1.” PER GARBA, J.C.A.
“The law is now common knowledge that an established breach of the principle and right to fair hearing by a court in the conduct of its proceedings or determination of a case, would not only render the whole proceedings but also any decisions reached therein, null and void. See Okafor v. Attorney-General. Anambra State (supra); Alsthom S.A. v. Saraki (2005) 1 SC (I) 1; ANPP V Ogunsola (2002) 5 NWLR (761) 484; Newswatch Comm. Ltd. v Attah (supra); Haastrup Lines (W.A.) Ltd. v Wichie (2006) ALL FWLR (304) 483; Tanko v UBA Plc (2010) 17 NWLR (1221) 80.” PER GARBA, J.C.A.
“In the recent case of S & D Construction Co. Ltd. v Ayoku (2011) 6 MJSC (Pt.II) 132 at 146, the Supreme Court had held that:- “A party who is aware or is reasonably presumed to be aware of the date which its case is scheduled for hearing does not require hearing notice to be served on it.” In the more recent case of E.B. Plc. Awo Amamana v Nwokor (2012) 14 NWLR (1321) 488 at 506, this court, in line with above principle, had stated that:- “A mindful and diligent counsel conscious of his obligation and duty to his client and the administration of justice would appear in court the following day after he sent a letter for adjournment with a view to finding out the fate of his case.” PER GARBA, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
Between
1. GITTO COSTRUZIONI GENERALI NIG. LTD
2. MR. EFFIONG ETUK (MACHINE OPERATOR) Appellant(s)
AND
1. UMOH EFFIONG ETUK
2. UWEM EFFIONG ETUK Respondent(s)
MOHAMMED, LAWAL GARBA, J.C.A. (Delivering the Leading Judgment): This appeal is from the decision of the Akwa Ibom State High Court delivered on the 27/1/10 in suit No. HU/324/2005 in which judgment was entered in favour of the Respondents. The Amended notice of appeal filed on 23/2/12 with the leave of court, contains seven (7) grounds of appeal out of which six (6) issues were distilled by the learned counsel for the Appellants in the Appellants’ brief filed on 12/05/11 but deemed on the 23/2/12. The issues are as follows:
“1. Whether the Appellants were denied fair hearing thereby occasioning a miscarriage of justice when the lower court denied them the opportunity of presenting their defence by failing to order for hearing notices to be served on the Appellants following the failure of their counsel to appear on the 4th of June 2009, the 21st of October 2009, the 5th of November 2009, and the 11th of January 2010 (Ground 1 of the notice of appeal).
2. Whether there was a denial of fair hearing occasioning a miscarriage of justice when the learned trial judge failed to call for final addresses before delivering judgment? (Ground 2 of the Notice of Appeal).
3. Whether the Respondents proved actionable nuisance and/or negligence, and whether the Lower Court was right in holding the Appellants liable in actionable nuisance and/or negligence, when it held that “it is declared that the acts of the defendable by maliciously clearing away in the process of their road construction along Abak Road, Uyo on 17th September, the sand mound erected by the Plaintiffs along their school fence and the lack of expert measures to prevent flooding of the Plaintiffs school, library, computers and other equipments during the said road constructions amounted to actionable nuisance and/or negligence on the part of the defendants.” (Ground 3 of the Notice of Appeal).
4. Whether the lower court was right in holding the Appellants jointly liable for the acts of the 2nd Appellant. (Ground 4 of the Notice of Appeal).
5. Whether the learned trial judge admitted and acted on inadmissible evidence thereby occasioning a miscarriage of justice when he admitted the evidence of PWI that “THE FLOOD WATER THAT NORMALLY RAN ALONG ABAK ROAD, UYO BROUGHT DOWN THE UNPROTECTED SCHOOL FENCE AND HAD A FIELD DAY IN TIIE SCHOOL DESTROYING ALMOST EVERYTHING IN THE SCHOOL COMPOUND? (Ground 5 of the Notice of Appeal).
6. Whether the lower court was right in holding the Appellants liable for special damages when there was no proof of special damages by the Respondent.”
These issues were adopted with a minor modification in the number by the learned counsel for the Respondents in the Respondents’ brief filed on the 10/8/12, but deemed on the 3/12/12.
The facts of the case before the High Court leading to the appeal were that the 2nd Appellant said to be an employee of the 1st Appellant was alleged to have cleared sand mould erected by the Respondents to protect their school fence which led to the flooding of the school premises, causing damages, special and general, to them. The Respondents sued the Appellants before the High Court for nuisance and negligence as set out in both the writ of summons and the statement of claim. In the course of trial, the counsel for the Appellants stopped appearing in the case, was absent when the case was eventually adjourned for judgment without an order for final address and when judgment was entered in favour of the Respondents.
I now turn to the issues for determination and the submissions by learned counsel on them. I intend to use the Appellants’ issues in deciding the appeal.
The learned counsel for the Appellants had argued his issues 1 and 2 together and said that the Appellants were denied fair hearing by the High Court because it failed to order for hearing notices to be served on their counsel on the dates of the trial when he was not in court. According to him, it is a mandatory requirement of the law that where a party is absent from court, that court should order hearing notice to be served on him so as to inform him of the progress of the case and afford him the opportunity of presenting his case. He placed reliance on Faladu v Kwoi (2003) 9 NWLR (826) 657 and then cited dates of hearing of the case on which counsel for the Appellant was absent and that no hearing notices were served on him, including when the Appellants’ case was closed by the High Court and the matter adjourned for judgment without calling for final addresses from the parties. It was his submission that whether or not a party called evidence in a case, he had a right to final address as provided for in the constitution and unless he waives or failed to utilize it, a court cannot proceed to deliver judgment without the final addresses of the parties. He said it was wrong for the High Court to have foreclosed the Appellants from the final address on the ground that they did not defend the action against them as borne out at page 144 of the record of appeal. Learned counsel said even when the judgment could not be delivered on the adjourned date fixed by the High Court due to the strike action of the Judiciary Staff Union of Nigeria, no hearing notice was served on the Appellants’ counsel of the date when it was eventually delivered. It was contention of counsel that the non service of the hearing notice had deprived the Appellants of their right to present their defence, cross examine the Respondent’s witness or make a final address before judgment was delivered by the High Court and thereby denied a fair hearing. The cases of Mbadimuju v Ezuka (1994) 6 NWLR (3 64) 535 at 553 and Adigun v Attorney-General, Oyo State (1987) 1 NWLR (53) 678 were cited on the effect of failure to serve hearing notice on a party as well as the cases of Akabogu v Akabogu (2003) 9 NWLR (826) 458; Salami v Odogun (1991) 2 NWLR (173) 291 and Ayisa v Akanji (1995) 7 NWLR (406) 129 at 144, on the effect of failure by a trial court to allow parties to deliver final addresses at the close of evidence. It was the further submission of counsel that the failure to serve hearing notices and call for final addresses before judgment, vitiated the proceedings of the High Court for denial of fair hearing and he urged he urged us to so declare.
The submissions by the learned counsel for the Appellant on his issues 3 &, 4 are that the Respondent did not prove the tort of negligence which has 3 conditions that must be satisfied together as follows:-
a) that the defendant owed a duty of care to the plaintiff
b) that the duty of care was breached;
c) that the plaintiff suffered damages arising from the breach.
Counsel said the plaintiff must plead detailed particulars of the facts that constitute negligence which is a question of fact to be decided in the light of the circumstances of each case, citing U.T.B. v Ozoeng (2009) 3 NWLR (1032) 448. It was his contention that the Respondents’ pleadings fell short of the standard required by law as no particulars were pleaded and that the sand moulds cleared by the Appellants were on or a long a public path since the Respondents did not show that it was on their property. Counsel said because the Appellants as agents of the State Government working on a road construction had removed sand mould erected on the road by an individual to protect his fence, they cannot be liable for negligence for carrying out a public duty on behalf of the government. Relying on Osondu v. Soleh Boneh Nig. Ltd. (2000) 5 NWLR (656) 322 at 360, he argued that the Respondents did not show that the Appellants owed them any duty of care and so the High Court speculated on the cause of the flood in their school. It was the further argument of counsel that the Respondents did not plead that 2nd Appellant was employee of the 1st Appellant who acted in the course of his employment for the vicarious liability of the latter to arise. So the evidence of PW1 that 2nd Appellant was an employee of the 1st Appellant goes to no issue as stated in Iheanacho v Chiyere (2004) 17 NWLR (901) 157 8, he submitted. Counsel also cited Eseigbe v. Agholor (1990) 7 NWLR (161) 234 at 247 – 8 among others on when vicarious liability of a master arises for the acts of a servant and contended that there were no pleadings and evidence from the Respondents to establish the vicarious or joint liability against the 1st Appellant.
On his issue 5, counsel said the Respondents did not plead that their school fence was brought down by the rain that normally ran along Abak Road, referring to the pleading in paragraph 10 of the Respondents’ statement of claim. He argued that the evidence of the Respondents as to the cause of damage to their property was unsupported by their pleadings and if taken out of their case, it would fail.
On the last issue 6, it was submitted by counsel that the Respondents did not specifically prove special damages suffered by them as required by law and so the High Court was wrong to have awarded them such damages. That the Respondents did not tender receipts or any documents in proof of the special damages suffered by them. In conclusion, learned counsel urged us to allow the appeal, set aside the judgment appealed against for being a nullity and order a retrial. In the alternative, we were urged to hold that the Respondents had failed to prove their claim before the High Court.
In his submissions on the issue 1, the learned counsel for the Respondents had said that the Appellants were not deemed fair hearing because their counsel were duly aware of all the dates of hearing but opted not to app ear before the court. He set out portions of the record of appeal to show that hearing notices were ordered to be served on Appellants’ counsel application for adjournment and when adjournments were made at their instance. It was his contention that even when the Judiciary strike intervened, the Appellants’ counsel ought to have been deligent to have found out after the strike, what the position of the case was, but they went to sleep and so cannot be heard to complain of denial of fair hearing. That in the circumstances of the case, there was no need for the High Court to have issued hearing notices to the Appellants as that would have amounted to an over indulgence to them and that a party who has been duly notified of a hearing date but opted out of the proceedings has no justification to complain of denial of fair hearing. Cases including Jonason Ltd. v. Charles Moh. Ltd. (2002) 12 NSCQR 1; Nirchamdani v Pinheino (2001) FWLR (48) 1307; Obimiami Brick & Stone Nig. Ltd. v A.C.B. Ltd. (1992) 3 SCNJ I and Newswatch Comm. Ltd. v Atta (2006) 4 KLR, 1481 were cited on when hearing notices were to be served on parties and the application of the principle of fair hearing.
On the issue 2, it was submitted by learned counsel that failure to hear final addresses does not vitiate a final or render the proceedings null unless a miscarriage of justice was thereby occasioned, relying on Akabogu v Akabogu (supra) and Obodo v Olomu (1987) 3 NWLR (59) 111. According to learned counsel, there can be no miscarriage of justice by failure to hear final addresses where the parties had waived their rights, even though it is a legal and constitutional requirement. He referred to page 143 of the record of the appeal where he said the High Court had observed that the Appellants had waived their right to final address constructively or at least, impliedly by abandoning the case. He urged us to hold that the High Court did not deny the parties the right to final address and that no miscarriage of justice was occasioned.
Next, the Appellants’ Issue 3 and 5 were argued by the learned counsel for the Respondents and he said that the submission in the Appellants’ brief that the sand mounds which the Respondents erected was piled along the school fence on a public path, was a new fact which was not pleaded. He cited Oloruntobaogu v Abdul Raheem (2009) 6 KLR (209) 1673 at 1679 and page 149 of the record in support of the submission. It was his contention that the evidence of PW1 showed that the sand mounds erected by the Respondents was on their property and that the Appellants owed them the duty of care not to destroy their property which they breached. Pages 53, 54 and 184 of the record of the appeal were referred to by counsel who then pointed out that the Respondents’ claim was that the Appellants in the process of clearing the sand, negligently removed all the embarkment sand erected by the Respondents to protect the school fence thereby allowing flood water along Abak road to gush through into the school premises. He argued that the Respondents’ had thereby proved the duty of care owed them by the Appellants and its breach as required in the case of Osondu v Soleh Boneh (supra) and so were entitled to succeed in the absence of any evidence from the Appellants. The case of UTB v Ozoena (supra) was cited.
Furthermore, counsel said the evidence of PW1 was substantially in accordance with the facts pleaded by the Respondents especially paragraph 10 of the statement of claim and so clearly admissible, citing inter alia, Ibeanu v Ogebeide (1998) 62 LRCN 4880 and Cappa & Dalberto Ltd. v Tilo (2003) 9 NWLR (824) 49. The case of Avong v KRPC Ltd. (2002) 14 NWLR (788) 508 was also cited on the law that the admissibility of evidence is governed by relevance and its was submitted that the evidence of PW1 was relevant to the facts pleaded in paragraph 10 of the statement of claim and was unchallenged. Learned Counsel then sets out facts of the cases cited in the Appellants’ brief which he said are distinguishable with the Respondents’ case because evidence given in those cases was not supported by pleadings.
On Issue 4, it was the submission of learned counsel that in paragraph 3 of the statement of claim, the Respondents had pleaded that the 1st Appellant had employed the 2nd Appellant in their business of road construction and that PW1 had testified that latter was an employee of the former and not an independent contractor. That the Appellants did not plead independent contractor, and so cannot bring it up at this stage. In addition, counsel said the pleadings and evidence of the Respondents show that the 2nd Appellant acted in the course of his employment with the 1st Appellant when he committed the act complained of by them and was not on a frolic of his own or an independent contractor. Learned counsel cited SGBN Ltd. v Eleganza Ind. Ltd. (2004) 8 NWLR (875) 432 ACB Ltd. v Apugo (1995) 6 NWLR (399) in inter alia, on the liability of a principal for the acts of his agent, and Asafa Food Factory v Alraine Nig. Ltd. (2002) 12 NWLR (781) 353 at 373 and CBN v Okojie (2004) 10 NWLR (882) 488 on the law that both a principal and his agent can be held liable for the act of the agent. It was his further submission that the 1st Appellant can only act through its personnel and so would be liable along with the personnel for the acts committed by such personnel, placing reliance on High-Flow Farm Ind. Ltd. v University of Ibadan (1993) 4 NWLR (290) 719 and Okeke v Pelmag Nig. Ltd . (2001) 4 NWLR (915) 245.
On his last Issue 5, learned counsel for the Respondent had referred to pages 52, 53 and 140 – 1 of the record of appeal and submitted that the Respondents had pleaded the particulars of the special damages suffered and specifically proved them through the evidence of PW1 without challenge from the Appellants who are therefore deemed to have admitted them. He relied on the cases of Hayes v Hayes (2000) 3 NWLR (648) 276 at 284 and Agbaje v Ibru Sea Foods Ltd. (1972)) 5 SC, 50 at 293 and argued that the main purport of pleading and particuliarizing special damages is to obviate any surprise to the opposite party, citing Rean Plc v Anumnu (2003) 6 NWLR (815) 5 at 62. It was then submitted that the strict proof of special damages means no more that the evidence should be such as would readily lend itself to quantification or assessment and so does not mean unusual proof. The case of Oloyede v Pior (2005) ALL FWLR (279) 1277 at 1282 was relied on for the submission and we were urged to hold that the Respondents have fully satisfied the requirements of the law on the pleading and proof of special damages. In conclusion, learned counsel for the Respondents urged us to dismiss the appeal and uphold the decision by the High Court.
It may be recalled that the 1st issue canvassed by the learned counsel was whether or not the Appellants’ right to fair hearing was violated or denied because hearing notices were not issued and served on to them for the dates they were absent during trial or because the High Court did not call for final address before delivering judgment in the case. I would say that the constitutionally guaranteed right of the Nigerian citizen or indeed any person or party, to a fair hearing in all judicial proceedings before all the courts created by the constitution and other statutes in the country is so fundamental and crucial that the established position of judicial authorities is that it cannot be waived or taken away even by the statutes. See Okafor v Attorney General, Anambra State (1991) 3 NWLR (200) 59; Araka v Ejeigwu (2001) 5 WRN 1; Awoniyi v R.T.R.O. Amore (Nig) (2000) 6 SC 1 at 103; Bamgboye v . University of Ilorin (1999) 10 NWLR (622) 290; Ovunwo v Nwoko (201 1) 6 MJSC III 83 at 112 – 113; Ferble v T.S.A. Ind. (101) 15 NWLR (1266) 247.
The principle as provided for in the constitution, means that in the conduct of judicial proceedings to determine the civil rights or/and obligations of the parties therein, the twin pillars of natural justice shall be adhered to and applied by the courts. The basic attributes of the principle of fair hearing would therefore include:
1) that a court shall hear both parties to a case
2) that a court gives or provide equal opportunity, treatment and consideration to the parties, to and in presenting their own side of the case
3) the proceedings are held in public and all the parties shall be informed or notified of the dates and have free access to the venue of the hearing
4) that the proceedings are conducted in accordance with all the legal rules formulated to ensure that justice is not only done, but manifestly seen to have been done to the parties in the case.
See Usani v Duke (2004) 7 NWLR (871) 116- Fagbule v Rodrigues (2002) 7 NWLR (765) 188; Eshenake v Gbinije (2006) I NWLR (961) 288; Alabi v Doherty (2006) ALL FWLR (299) 1527; Newswatch Comm. Ltd. v Atta (supra).
From the above attributes, the test for determination of whether the principle of fair hearing was complied with in a given proceedings would be objective, that is the view of a reasonable observer of the proceedings of whether the trial was fair and justice was done to both parties in the case. See ANPP v INEC (2004) 7 NWLR (311) 16; NEPA v Arobieke (2006) ALL FWLR (316) 284; Ugwu v Lekwuwa (2010) 17 NWLR (1222) 211; P.A.I. Incorp. v. S.L. Ltd. (2010) 6 NWLR (1186) 98; Peters-Pam v Mohammed (2008) 9 MJSC, 117. The right to fair hearing in judicial proceedings is an issue of opportunity to be heard and lies therefore in the procedure adopted or followed in the conduct of the proceedings in a case and not in the correctness or otherwise of the eventual decision by the court, which is an end product of the proceedings. See Mohammed v Olowunmi (1990) 2 NWLR (133) 458; Omokhodion v FRN (2006) ALL FWLR (292) 1; FBN Plc v T. S. A. Ltd. (supra); Saleh v Monguno (2003) 1 NWLR (801) 22; FBN Plc v T.S.A. Ind. Ltd.(2010) 15 NWLR (1216)215 at 303.
On the state of the law on fair hearing, courts are therefore required under the principle to ensure that the requisite hearing notices of the dates of hearing of cases before them are not only issued by their Registries, but also served on the parties before embarking on the conduct of proceedings in the cases. Except the parties are aware of the dates fixed or set down for hearing of their cases before the court, hearing notices are required to be served on them if an opportunity was to be provided them to present their own side of the case in accordance with the attributes of the principle of fair hearing set out earlier in this judgment. See Chigbu v. Tonimas Nig. Ltd. (1999) 3 NWLR (593) 115; N.A.C.B. Ltd. v Obadiah (2004) 4 NWLR (863) 326; BON Ltd. v. Adegoke (2006) 10 NWLR (988) 339.
In the case of U.B.A. v Ajileye (1999) 13 NWLR (633) 116 at 121 it was held that failure to serve hearing notice or any process when required by the law is fundamental and deprives the court of the jurisdiction over the process or hearing as the case may be. See also Auto Import-Export v Adebayo (2002) 18 NWLR (299) 554; Oke v. Oyedun (1986) 2 NWLR (23) 548.
The law is now common knowledge that an established breach of the principle and right to fair hearing by a court in the conduct of its proceedings or determination of a case, would not only render the whole proceedings but also any decisions reached therein, null and void. See Okafor v. Attorney-General. Anambra State (supra); Alsthom S.A. v. Saraki (2005) 1 SC (1) 1; ANPP V Ogunsola (2002) 5 NWLR (761) 484; Newswatch Comm. Ltd. v Attah (supra); Haastrup Lines (W.A.) Ltd. v Wichie (2006) ALL FWLR (304) 483; Tanko v UBA Plc (2010) 17 NWLR (1221) 80. The complaint by the learned counsel for the Appellants on the 1st issue is that he was not served hearing notices and so not aware of the hearing of the Respondents’ case up to the time judgment was delivered. On overview of the relevant portion of the record of the appeal would reveal what happened during the hearing. Page 132 of the record of the appeal shows that Mr. Godknows Njoku, Esq., had appeared for the Appellants as 1st and 2nd defendants before the High Court on 6/8/2007 when his application for extension of time to file the Appellants statement of defence was granted, and the case was adjourned to the 6th and 7th November 2007, for hearing. The High Court did not sit on the 6/11/2007 and so the case was adjourned to 6/12/07, a date Etetim Inuk, Esq., appeared for the Appellants and once again because the High Court did not sit, the case was further adjourned to the 17/1/08 for hearing. The High Court did not sit on the 17/1/08, both counsel were in court when the case was adjourned to the 15/2/08 for hearing on which date, once more, the High Court did not sit and so the case was further adjourned to the 18/3/08 for hearing. There was no record that counsel for the parties were in court on that day. However, on the 18/3/08, Inuk Esq., appeared for the Appellants and the case was adjourned, as has become usual, because the High Court did not sit, to the 17/4/08 for hearing, on which date Godknows N. Njoku appeared for the Appellants. The High Court next sat on the 7/10/08 when the same G. N. Njoku, Esq., appeared for the Appellants and “with consent of both counsel” the case was adjourned to the 3/11/2008 for hearing on which date, because Respondents’ counsel was absent, the case was adjourned to the 21/2/08.
The next sitting of the High Court was on the 26/2/09 because of the Judiciary Staff strike as shown by the record and the Appellants’ counsel was absent and did not send letter to the court. The High Court then adjourned the case to the 2/4/2009 for hearing and ordered hearing notice to be issued and served on the Appellants and on that day, i.e. the 2/4/09, Mr. Robin A Umon, Esq. appeared for the Appellants and because the Respondents’ counsel was absent, he applied for and the High Court adjourned the case to 18/5/09 for hearing. On the 18/5/2009, the Appellants’ counsel was absent from court but wrote for a stand down to 12.00noon and because it was not convenient for counsel to the Respondents, the High Court adjourned the case to 4/6/09 with an order that the Clerk of Court inform counsel for the Appellants when he came at 12.00 noon, of the date of adjournment. On the 4/6/09, Appellants’ counsel was absent from court and did not send a letter to the High Court and that court proceeded to take the evidence of PW1. The case was later adjourned to the 8/7/09 for continuation on which date, Appellants’ counsel was again absent and did not send a letter and so PW1 concluded his evidence in chief and the case was adjourned to the 6/8/09 for cross examination. On that day, the 6/8/09, one Emanuel Nsabe, counsel for the Appellants wrote a letter to the High Court for adjournment but was absent from court and the case was adjourned to 21/10/2009, one of the dates suggested by him in the letter for adjournment, for him to cross examine the PW1. Mr. Nsabe, Esq., was absent on the 21/10/2009 and did not write to the court and so the Respondents’ counsel closed his case and it was adjourned to the 5/11/09 for defence. When on 5/11/09 the Appellants’ counsel was absent and as usual did not write to the court, learned counsel applied that the case be adjourned for judgment. The High Court then ruled thus:-
“Court: Since the defendants have not defended the action there will be no need to call for addressed (sic) from the counsel. The case is adjourned to 11/1/20l0 for judgment.”
The judgment, as stated, was delivered on the 27/1/10. It would appear that for the purposes of the Appellants’ complaint in issue 1, the proceedings of High Court from the 2/4/2009 are what called for closer consideration. Mr. Umiom, Esq., for the Appellants had applied for an adjournment and the High Court adjourned the case to 18/5/2009, in his presence, for hearing. Since he was physically present in and before the High Court when the case was adjourned at his own instance, he was fully aware of the date of adjournment and therefore there was no duty on the High Court to order and ensure that he was served with a subsequent hearing notice of the said date. Issuance and service of hearing notice on the Appellants’ counsel was therefore not required in law in the circumstances since the essence of service of hearing notice is to notify and inform the party in whose name it was issued or to whom it was directed, of the date mentioned thereon fixed by the court for the hearing of the matter to which it relates. See Janason Triangles v C.M & P. (2002) 15 NWLR (879) 176 at 192-3; Onadeko v UBN (2005) ALL FWLR (250) 57. On the 18/5/09, the date to which the case was adjourned to by the High Court in the presence of the Appellants’ counsel, he was absent but wrote to the court to request for a stand down to 12 noon of the same date. It was his duty to attend the High Court by the time he requested for the stand down of the case whether or not the request was granted by that court on that date. He, it was who sought the indulgence of the High Court to stand down the case to a specified time of the day of the adjournment he was aware of and so owed both the court as an officer thereof, and the Appellants as his clients, the legal and professional duty and obligation to attend the court at the time he named in his letter to find out what the outcome of his request to the court was. After adjourning the case on that day, because a stand down to the time requested by the Appellants’ counsel in his letter to the court was not convenient to the Respondents’ counsel, the High Court in my respectful view had fully discharged its obligation under the law by ordering the Clerk of court to inform the Appellants’ counsel of the adjournment of the case to the 4/6/09 for hearing when he came at the time he requested from the court. Whether or not he attended the court and was informed of the date of next adjournment, the High Court had no further duty to send hearing notice of that day to the counsel for he was deemed to have been aware of it and cannot be heard to complain that he needed to be served hearing notice of that date. In the recent case of S & D Construction Co. Ltd. v Ayoku (2011) 6 MJSC (Pt.II) 132 at 146, the Supreme Court had held that:-
“A party who is aware or is reasonably presumed to be aware of the date which its case is scheduled for hearing does not require hearing notice to be served on it.”
In the more recent case of E.B. Plc. Awo Amamana v Nwokor (2012) 14 NWLR (1321) 488 at 506, this court, in line with above principle, had stated that:-
“A mindful and diligent counsel conscious of his obligation and duty to his client and the administration of justice would appear in court the following day after he sent a letter for adjournment with a view to finding out the fate of his case.”So when on the 4/6/2009, counsel did not appear and did not write to the High Court to excuse the absence at the hearing, it is my firm view that the High Court was right in the circumstances to proceed with the hearing in his absence as it was under no obligation, legal or moral, to gratuitously order hearing notice to be served on the counsel who opted to stay away from the hearing. However because the only witness for the Respondents had started his testimony in chief in the absence of the counsel for the Appellants and the case had to be adjourned for him to conclude the evidence, the duty arose on the part of the High Court, in line with the spirit of the twin pillars of natural justice and fair hearing as espoused by the apex court in the land; the Supreme Court of Nigeria in many cases, including the ones cited earlier in this judgment, to order for the issuance and service of hearing notice on the counsel for the next date of adjournment at which PW1 was to conclude his testimony. This was to notify the counsel that hearing in the case had in fact started in his unexcused absence and that some evidence in support of the Respondents’ case had been taken and would continue on the next date of adjournment of which he was not aware of. There is no record of any such order by the High Court on the 4/6/2009 when the case was adjourned to the 8/7/2009 for continuation of the evidence of PW1, when after the conclusion of that evidence in the absence of counsel for the Appellant so the High Court adjourned the case for cross examination to the 6/8/2009. Again, there was no order on record for hearing notice to be served on the said counsel for that date. Somehow, on the 6/8/2009, Nsabe, Esq., counsel for the Appellants wrote to request for an adjournment and the case was adjourned to the 21/10/09, one of the dates suggested by him, for cross examination of PW1, on which date he was absent and did not write to the High Court on the absence. The learned counsel for Respondents then closed their case and asked for a date for the Appellants to open their defence. The High Court adjourned the case to 5/11/2009 for defence without record of an order to issue and serve the Appellants’ counsel with hearing notice of the date. On the 5/11/09, there was no record that the Appellants or counsel were aware of the date or that they were served with hearing notice thereof but the Appellants’ counsel was absent and did not write to the court and so as stated earlier on, counsel for the Respondents applied for the case to “be adjourned for judgment because as it is addresses are not necessary”. The High Court adjourned the case for judgment, again, without any order for the issuance and service of hearing notice on the Appellants’ counsel who was absent. In the case of Kanumba v Bunu (2006) ALL FWLR (300) 1709 at 1728, paras E-F, this court had held that:-
“A court which adjourns a matter in the absence of a party, has a duty to notify him.”
The court again restated the position in the case of Omabuwa v. Owhofatsho (2000) ALL FWLR (323), 1655 at 1677 paragraphs F-G, when it held that:
“where a court adjourns a case beyond a date which the litigants had notice of hearing of the case, the court has a duty to notify them of the subsequent adjournment.
See also Ude v. Attorney-General. Rivers State (2002) 4 NWLR (756) 66; Mobil Nig. Ltd. v Pam (2000) 5 NWLR (657) 506.
The law is that a party to a case is entitled to be notified of every date the suit is set down, fixed or adjourned in his absence for hearing and in the absence of a notice of hearing served on him in accordance with the requirements of the Law and Rules of court, the proceedings conducted in breach of the right to be heard, becomes a nullity. See Faladu v Kwoi (2002) FWLR (113) 36s, (02) 9 NWLR (826) 643; Otapo v Sunmonu (1987) 5 SCNJ,59; Principal, GSS, Ikachi v Igbudu (2006) ALL FWLR (299) 1420; Somaco Ent. Ltd. v NNB Plc (2006) ALL FWLR (293) 193.In the circumstances of the case before the High Court, when it adjourned the matter in the absence of the counsel for the Appellants on the 21/10/09 to 5/11/09 for defence and on that day, to the 11/1/2010 for judgment, it had the duty to notify him or the Appellants of such adjourned dates. The absence of any record of an order for the issuance and the actual service of the hearing notices in respect of those dates which the Appellants’ counsel was not aware of, clearly shows that the High Court did not discharge the duty to notify the counsel of the hearing of the case on the named dates, thereby denying him the opportunity to present the Appellants’ side of the case as required by the principle and the constitutional right to fair hearing. The seemingly unserious attitude of the Appellants’ counsel in the conduct of the case did not in my view mitigate or relieve the High Court of the obligation to ensure that he was duly served with the hearing notices of all the dates to which the hearing of the case was adjourned in his absence. It is important that the record of proceedings of the High Court should clearly show the order for the service and actual service of hearing notice for such dates on the absent party before proceeding with the hearing otherwise it may be embarking on a futile exercise as the proceedings would be null and void. That unfortunately, is the position in respect of the High Court proceedings in the case of the Appellants for violating their right to fair hearing at the trial. For that reason, I resolve the issue 2 in Appellants favour.
Issue 2 relates to the failure by the High Court to call or order for final addresses from the parties at the conclusion of evidence and before judgment was delivered. The extract of the record of appeal on the adjournment by the High Court of the case for judgment on the 5/11/09 without an order or calling for addresses from the parties, which appears at page 145 of the record of appeal, and the judgment delivered thereafter on the 27/1/2010, clearly show that the Appellants were not given or provided the opportunity to deliver a final address in the case before the High Court delivered the judgment appealed against. The 1999 Constitution of the Federal Republic of Nigeria (as altered), in Section 294(1) has made the following provisions for inter alia, final address in a case:-
“294.-(1) Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
Simply put, a court established under the constitution, such as the High Court of Akwa State from whose decision this appeal enured, is required to deliver its decision, for our purpose here, after the conclusion of evidence and final addresses. Undoubtedly, the provisions envisaged that there would be final addresses after the conclusion of evidence in the trial of a case to be made by the parties or their counsel to the court before it shall deliver its decision as prescribed therein. Being the ground norm, the provisions expectedly, did not provide the details of whether the trial court had to order or call for such addresses, what form the addresses shall be in; i.e. oral or written, who among the parties is to make the address first, etc. However, the provisions appear to confer a right on the parties to a case to make final addresses after the conclusion of the evidence in the case before the court was required to deliver its decision in the case. Since it is a personal right and so a benefit conferred or vested in the parties, it can legally and effectively be waived by any or all of the parties to the case like all other personal, private and domestic right conferred by statutes. The parties cannot be forced to exercise the right to address a court after the conclusion of evidence if they did not desire or are not willing to do so and it is not pafi of a court’s judicial duty to inquire into the reason/s of a party for the exercise of his dissection not utilize the right under the provisions. See Eboigbe v NNPC (1994) 5 NWLR (34) 649; Mobil Producing (Nig) Unltd v LASEPA (2002) 18 NWLR. In the case of Co-operative & Comm. Bank v Mbakwe (2002) FWLR (109) 1678 at 1687, it was held that:
“where a law makes provisions in favour of a person, such person, can waive his right under the law. This is so even if the provisions involve the fundamental rights of the person concerned. In appropriate cases, such a person can waive the rights. Umanwa v Umanwa (1987) 4 NWLR (Pt. 65) 407; Ariori v Elemo (1983) 1 SC.13; Adejumo v David Hughes & Co. (1989) 5 NWLR (Pt. 120) 146.”The right conferred by the provisions above can therefore in law be waived by all or any of the parties and the only requirement I would say, is that the waiver of the right by any of the parties must be clearly and expressly made by him and a record of it made by the court before which it was made so as to form part of the proceedings at the trial. Let me also point out that the provisions are unambiguous and plain and they do not say that the right to make final address after the close of evidence is conferred or vested only in a PW who called evidence at the trial. Even Order 30, Rules 13 and 14 of the Akwa Ibom State High Court Civil Procedure Rules 2009 which were in force at the time the judgment appealed against was delivered, did not say that a party who did not call evidence at a trial was not entitled to make an address after the close of evidence in a case. Rule 14 only provides the time limits for the other party to file an address where he calls evidence, after the close of the evidence. This is what the Rule concisely provides for:-
“14. Where the other party calls evidence he shall within 2l days after the close of evidence filed address.”
On the other hand, Rule 13 provides as follows:-
“13. Where the party beginning has concluded his evidence, the Judge shall ask the other party if he intends to call evidence. If the other party does not intend to call evidence, the party beginning shall within 21 days after close of evidence file a within address. After being served with written address, the other party shall within 2l days file his own written address.”
Nothing in the above provisions of the Rules suggests that a party who did not call evidence after the close of evidence in a case, has no right of address.I am aware of the judicial attitude that an address, even final address in a case, does not add or subtract to a party’s case which is won or lost on the strength of the facts and evidence adduced at the hearing and so is said not to bind a court, see Ugwu v Alaebo (2006) ALL FWLR (309) 1474 at 1481; Aro v Aro (2000) 3 NWLR (649) 443; Obasuyi Business Ventures Ltd. (2000) FWLR (2010) 1722; Ekpenyong v Etim (1990) 3 NWLR (940) 594; Anthony v Gov. of Lagos State (2003) 10 NWLR (828) 288, where however, the right to address was not given to or afforded a party after the close of evidence and before judgment was delivered by a trial court, this court and the apex court have been consistent in holding that the denial was in breach of the constitutional right to fair hearing. This was the reasoning of this court in the case of Akabogu v Akabogu (supra) at pages 458 – 9 when it said:-
“During his oral submission in this court by Ike Onyejiaka, learned counsel for the respondent in this case, it was pointed out that in the instant case neither the plaintiff s nor the defendant’s counsel was called upon to address. Therefore no injustice was caused to anybody.
We could almost have bought the above argument. However, further reflection and research revealed that the very pertinent fact that counsel’s addresses at the end of every trial is not a luxury or cosmetic, but rather a legal and indeed a constitutional requirement in the absence of which a final cannot be said to have been concluded, unless learned counsels on both sides waived their rights, which was not so in this case, see S. 258(1) of the 1979.”
See also case of Oyekan v Akinrinwa (1996) 7 NWLR (459) 128 at 150; Famuroti v Agbeke (1991) 3 NWLR (189) 1; Onajobi v Olainpekun (1985) 1 SC, 156;Kanon v Tekam (2001) 14 NWLR(732) 12; Ihom v Gaji (supra) in which the position was restated that by virtue of the constitutional provisions, right of address by counsel is to be afforded before judgment and that where it was not given, any decision arrived at amounts to breach of fair hearing rendering the proceedings null and void. However, the apex would appear to have in the cases of Ayisa v. Akanji and Obodo v. Olomu (supra) taken into consideration the situation which may be said to be a condition precedent to the nullification of proceedings in which the right to address was not given to the parties or any of them. The situation is that the denial of the right to address may only render the proceedings null if a miscarriage of justice was occasioned thereby. This was the situation provided for in Section 294 (5) of the 1999 Constitution, applicable to the case before the High Court, when it says:
“294.(5) The decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of this section unless the court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
These provisions are clear and straightforward to the effect that a decision of a court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of the section unless an appellate court is satisfied that the party complaining has suffered a miscariage of justice by reason thereof. Once again, for our purpose here, by these provisions, the decision of a trail court shall not be set aside or treated as a nullity merely on the ground only, that the parties were not given the right to address that court after the close of evidence, unless this court is satisfied that the PW complaining has suffered a miscarriage of justice by the denial or failure to be given the right to address. So unless a party complaining of the denial of the right to address satisfies this court that miscarriage of justice was occasioned and suffered by him, the denial ipso facto, would not be a valid ground for setting aside or nullifying the decision of the trial court. The provisions have thus, placed a legal burden on a complainant, usually an appellant, to satisfy this court by demonstrating from the record of the appeal that he has suffered a miscarriage of justice by the failure to afford him the opportunity and right to address the court after the close of evidence in the case. Until that burden is satisfactorily discharged, this court would have no constitutional basis to set aside or nullify a decision by a trial court only on the ground of denial of the right to make address. See Niger Construction Ltd. v Okugbemu (1987) 2 NSCC, 1258.
The constitution did not define what amounts to “miscarriage of justice” for the purposes of the provisions on addresses by parties after the close of evidence in a case. However, the phrase has been judicially defined by the Supreme Court in several cases, among which is Larmie v. D.P.M.S. Ltd. (2005) 12 SC (Pt.1) 93 at 107 where it said:-
“The terms “miscarriage of justice” has been variously defined but its essence is that it is the decision or outcome of legal proceedings that is prejudicial or inconsistent with substantial rights of a party. As it is used in constitutional standard of reversible error in judgment, miscarriage of justice means a reasonable probability of more favourable outcome for the defendant.”
See also Nnajifor v Ukonu (1986) 4 NWLR (36) 505; Ojo v Anibire (2004) 5 SC (Pt.1) 1.
The apex court had in the Lamie v DPMS Ltd. case given guidelines as to when miscarriage of justice would be declared by an appellate court as follows:
“It is the law that miscarriage of justice warranting a reversal of a decision should be declared only when the court, after examination of the entire case including the evidence is of the opinion that it is reasonably probable that a result more favourable to the appellant would have been reached in the absence of the error. A miscarriage of justice therefore means such a departure from the rule which permeates a judicial procedure as to make that which happened not in the proper sense of the word a judicial procedure at all.”
In the present appeal, there is no doubt that from the record of the High Court, the Appellants counsel cannot rightly be said to have waived the right to address the High Court after the close of the evidence in the case because the case was adjourned for judgment and the judgment delivered in his absence since he was not served hearing notices for the dates. He was in the circumstances not given or afforded the opportunity to address the High Court before the judgment appealed against was delivered. The question that arises then is whether the Appellants have satisfactorily demonstrated that they have suffered a miscarriage of justice by the inability to make the said address so as to satisfy us that on that ground alone, we should declare the decision by the High Court a nullity or set it aside. It is on record that although a statement of defence was filed for the Appellants by counsel the counsel for the Appellants (there were four (4) of them from a resume of the proceedings of the High Court stated elsewhere in this judgment) did not appear when the only witness in support of the Respondents’ case, testified and tendered some documents in evidence. Counsel for the Appellants were absent throughout the testimony of the said witness and so he was not cross-examined by any one of them. The evidence he gave, both oral and documentary was therefore unchallenged and uncontroverted throughout the trial. In addition, since the Appellants’ counsel did not appear to present evidence in support of the statement of defence filed for the Appellants, the said statement of defence was in law, deemed abandoned by them. See Ezennah v Atta (2004) 2 SC (Pt.II) 75; Arabambi v Advanced Beverages Ind. Ltd. (2005) 12 SC (Pt.1) 60; Durosaro v Ayorinde (2005) 3 – 4 SC. 14. The High Court was therefore right when it stated on the date the case was adjourned for judgment, “that the Appellants have not defended the action against them”. In the circumstances, the only case for consideration before the High Court was that of the Respondents since there was no case howsoever and whatsoever from the Appellants to be placed on the other side of the imaginary scale of justice it was required to have used in weighing the respective cases of the parties to the case. Put briefly, the Respondents’ case before the High Court was completely uncontested by the Appellants and the law is that in such a situation, minimum proof was required for the pendulum of justice to preponderate in favour of the Respondents. See Nwabuoku v Ottih (1961) 12 SCNLR, 232, (61) ANLR, 487; NEPA v Alli (1992) 8 NWLR (259) 279; Egbunike v. A.C.B. (1995) 2 SCNJ 58 at 78.
In the circumstances of the Appellants case, I am unable to find how an address from their counsel could have reasonably affected the decision of the High Court which was premised on the evidence of the Respondents’ that was completely unchallenged, in their favour. I am aware that a defendant may not call evidence in a case and could rely on the case presented by the plaintiff where and when the circumstances so warrant. However a situation where a defendant files a statement of defence but failed and not opted or chose not to call evidence to support it, and did not even cross examine the witnesses of the plaintiff no amount of brilliance in an address from him can reasonably be expected to defeat the case of the plaintiff on the merit. If a defendant had any point of law on which to challenge the case against him, he is not expected to wait until after the close of evidence in the case for him to raise at the address stage. Even the issue of jurisdiction of a court which is threshold in judicial adjudication and can be raised at any stage thereof it is expected to be raised at the earliest opportunity and stage for it to be determined in order to avoid what might out to be an exercise in futility by the parties and court in the conduct of hearing without the requisite jurisdiction. It was not the suggestion by the learned counsel for the Appellants in this appeal that the High Court did have jurisdiction to entertain the Respondents’ case. I find that the Appellants’ counsel has not satisfied me that the Appellants have suffered any miscarriage of justice by the failure of the High Court to call for final address before delivering the judgment appealed against. Put another way, I am not satisfied from the record of the proceedings of the High Court, that Appellants have suffered real miscarriage of justice solely on the ground that they did not make an address at the close of the evidence by the Respondents, before the judgment appealed against was delivered. The court therefore, pursuant to the provisions of Section 294 (5) of the Constitution, cannot set aside or declare the judgment a nullity solely on that ground that they did not address the High Court before it was delivered. I resolve the issue against the Appellants.
My resolution of the issue I in favour of the Appellants i.e., that the failure by the High Court to issue and serve them hearing notices when such notices were required in law, amounted to a denial of their right to fair hearing which vitiated the entire proceedings before it, the other issue save issue 2 on the same right to fair hearing, would ordinarily have been overtaken by that finding. I am always mindful of the position of the Supreme Court in several cases that this court, being an intermediate court whose decision is subject to a further appeal, is required to make pronouncement on all the issues placed before it by the parties to an appeal except in the clearest of cases. This was how the exhortation was put by the apex court in the case of Federal Ministry of Health v CSA Ltd. (2009) 9 NWLR (1145) 193 at 220-1:
“Except in the Supreme Court, also issues ought and must be considered or dealt with by the intermediate court, exceptional unless in the clearest of cases, the Court of Appeal should endeavour to resolve and pronounce on all issues put before it by the parties.”
In my respectful view, the issue of the denial of the Appellants’ right to fair hearing in the conduct of the High Court proceedings in respect of which they were not issued and served hearing notices and so at which they were absent, is one of the clearest of cases. Having resolved the issue of fair hearing in their favour and in view of the prayer by the learned counsel for the Appellant in the Appellant’s brief that the case be remitted back for retrial, the duty to consider the other issues on the appeal which touch on the merit of the Respondents’ case, the proceedings of which I have found to have breached the right to fair hearing, is abated. If I proceed to determine the other issues, it would be in irreconcilable conflict with my finding that there was denial of fair hearing at the trial of the issues which by operation of the law, render it, a nullity along with judgment appealed against. Similarly, in such a situation, the order for retrial sought for by the Appellants could not be made since nothing or issue would be left for the High Court to retry after a determination and pronouncements on the other issues by this court. In the circumstances, the determination of the issue of denial of fair hearing in favour of the Appellants has effectively subsumed the other issues in the appeal and so pronouncements on them by the court become unnecessary and even undesirable.
In the final result, because of my finding that the Appellants constitutional right to fair hearing was breached or violated and denied by the High Court in the conduct of the proceedings leading to the judgment appealed against, I have to declare the entire proceedings in the case and the judgment; a product thereof, a nullity in line with and in accordance with the established principle of law demonstrated in the judicial authorities cited on the point cited earlier. I do so without hesitation and the proceedings and the judgment of the High Court appealed against, are hereby set aside for being a nullity.
The case is ordered to be remitted back to the Chief Judge of the High Court of Akwa Ibom State for assignment to another judge of that court for trial as prayed for by the learned counsel for the Appellant and required by the justice of the case.
Parties shall bear their respective costs of prosecuting the appeal.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA. I am in total agreement that where ever and whenever there is a breach of fair hearing, the entire proceedings and the decision reached would be declared a nullity.
This appeal is allowed. I abide by all the consequential orders contained in the lead judgment.
JOSEPH TINE TUR, J.C.A.: I read in advance copy of the judgment delivered by my Lord Mohammed Lawal Garba, JCA, and I concur that fair hearing was breached in the circumstances highlighted which necessitates a hearing de novo before another learned trial Judge. I shall add the following comments of mine.
Issue one set down for determination by the learned Counsel to the appellants complains of the proceedings conducted by the learned trial Judge on (i) 4th day of June, 2009 (ii) 21st day of October, 2009 (iii) 5th day of November, 2009 and 11th day of January, 2010. The writ of summons and statement of claim were filed on 21st day of September, 2005 by the respondents and served on the appellants. The learned Counsel to the appellants by name Etetim Onuk, Esq. filed memorandum of appearances on behalf of the appellants on 5th day of October, 2005 indicating that service of all processes in respect of the suit should be on the Counsel. The importance or significance of this is that service of processes on Counsel is equivalent to service on the appellants. Appearance by Counsel in Court is also equivalent to appearance by the client. See Kehinde vs. Ogunbunmi (1968) NMLR 37. The client may not appear in Court once he is being represented by Counsel. But if Counsel is unable to appear in person there arises the need to communicate the inability to the Court and copy same to the opposing party or his Counsel suggesting alternative convenient dates. The Court is not however bound by the dates suggested by Counsel or a party. The convenience of the Court and the other party or Counsel in Court is the paramount consideration to determine the next adjourned date. The duty of Counsel who applies for an adjournment is, where possible, to instruct the person that brought the letter seeking an adjournment to await the decision of the Court, obtain the next adjourned date and communicate to the Counsel or party that sought the adjournment.
On 18th day of May, 2009 Obong Lawrence Iyoho, Esq. was in Court on behalf of the respondents. A. Umiom, Esq. of Counsel to the appellants had written for a stand down till 12:00pm. Not being convenient to Iyoho, Esq. because of his other commitments, the learned trial Judge adjourned the case to 4th day of June, 2009 for hearing with direction to the clerk of Court that this date should be communicated to A. Umiom, Esq. within 30 minutes when he comes at 12:00pm. Whether Umiom, Esq. came or not, this was not reflected in the proceedings of 4th day of June, 2009 for A. Umiom, Esq. was absent. Nevertheless, Imo Effiong Etuk testified as Pw1. Thereafter the case was adjourned to 8th day of July, 2009 for continuation. No order was made by the learned trial Judge that fresh hearing notice should be served on Umiom, Esq. of Counsel. On 8th day of July, 2009 Pw1 was re-sworn and continued his testimony as if Umiom, Esq. had been served fresh hearing notice. On that day the learned Counsel to the respondent completed examination in chief of Pw1 . The learned trial Judge adjourned to 6th day of August, 2009 for cross-examination without an order for hearing notice to be issued to learned counsel to the appellants. The entry in the record shows what happened on the next adjourned date as follows:
“On Wednesday, the 9th day of July, 2008
Parties are absent.
Plaintiff Counsel is not in Court.
Defendant Counsel is present.
Court not sitting. Case adjourned to 7th day of October, 2008 for hearing.
Sgd,
Mrs. Nkoyo E.J. Akpan
Principal Registrar.”
So when the appellants’ learned Counsel appeared in Court the respondents’ Counsel and his client did not. Mrs. Nkoyo E.J. Akpan, Principal Registrar granted an adjournment because the Court did not sit. Ironically the record shows that the case was adjourned to Wednesday, 19th day of July, 2008 and not Wednesday, 19th day of July, 2009. Besides the adjournment was to 7th day of October, 2008 and not 7th day of October, 2009 for hearing. How could that be, is unexplained!! Again Iyoho, Esq. appeared for the respondents while Emmanuel Nsabe, Esq. for the appellants was absent though he had written a letter for an adjournment which raised the presumption he was aware of the next date. The Court obliged Counsel and the suit was adjourned to 21st day of October, 2009 as suggested by the appellants’ learned Counsel for purpose of cross-examination of Pw1. But on 21st day of October, 2009 Emmanuel Nsabe, Esq. was again absent without any explanation. On the application of Iyoho, Esq. the learned trial Judge adjourned to 5th day of November, 2009 for defence with no fresh hearing notice directed to be issued to Counsel. On that day Emmanuel Nsabe, Esq. was again absent with no explanation to the Court. On the application of Iyoho, Esq. the suit was adjourned to 11th day of January, 2010 for judgment. By this adjourned date the Judiciary Staff Union of Nigeria, Akwa lbom State like their counterparts in other states of the federation were on strike hence the Court could not deliver judgment. The strike was suspended on or about 20th day of January, 2010 hence the record shows that the learned trial Judge delivered judgment on 27th day of January, 2010 without evidence that Counsel to the appellants had been served notice to that effect. In my judgment the issue to be determined in this appeal is whether the proceedings were conducted in such a manner that it can be said it was irregular or improper in a degree which makes it necessary to set aside the judgment. Secondly, is the question whether the conduct of the trial itself and the soundness of the adjudication has led to a miscarriage of justice. See Adeigbe & Anor vs. Kusimo & Anor (1965) NMLR 284 at 28T and Madukolu vs. Nkemdilim (1962) 1 All NLR 587 at 595.
In my humble view when the case came up for hearing on 4th day of June, 2009 the learned trial Judge should have enquired from the clerk of Court whether the orders he made on 18th day of May, 2009 that the date of 4th day of June, 2009 should be communicated to A. Umiom, Esq. was effected or not before proceeding to record evidence from Pw1. There was no such record. Therefore the proceedings conducted on 4th day of June, 2009, which continued on 8th day of July, 2009 and subsequently to judgment were so irregular that they ought to be set aside ex debito justitiae by the learned trial Judge if an application to that effect had been brought in the Court below or on appeal. See Lawrence Scott Emuakpor vs. Ukavbe (1975) 12 SC 41 at 47. The best way of affirming that the order was effected on counsel was for the Registrar or clerk of Court to have produced the affidavit of service on the appellants’ learned Counsel and tender same as exhibit or for the Court to be assured that service had been effected before proceeding to hearing. see SGB (Nig.) Ltd. vs. Adewunmi (2003) FWLR (Pt.170) 661 at 678. By 21st day of October, 2009 when the suit was adjourned for cross-examination of Pw1 the damage had already been caused for the proceedings had been conducted without notice to Counsel to the appellants.
Furthermore, the learned trial Judge did not take into consideration the fact that the Judiciary Staff Union of Nigeria (JUSUN) in Akwa lbom State were on strike. When the strike was called off and work resumed on or about 20th day of January, 2010 all parties/counsel should have been notified that judgment would be delivered on 27th day of January, 2010. This the learned trial Judge did not do. The records show that on the day of judgment Iyoho, Esq. and his client were in Court. The appellants and their learned Counsel were absent.
The learned Counsel to the appellants has shown that the irregularities highlighted in this judgment have led to a violent violation of what may be considered a fair trial or hearing that this Court ought to allow this appeal and remit the case to another learned trial Judge for hearing de novo. That is my humble opinion. I abide by the orders made in the lead judgment by my Lord.
Appearances
Ikani Agabi with A. U. AnahinaluFor Appellant
AND
Obong Lawrence IyohoFor Respondent
