HERITAGE BANK v. AWOLESI
(2022)LCN/16801(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, June 09, 2022
CA/L/441/2009
Before Our Lordships:
Onyekachi Aja Otisi Justice of the Court of Appeal
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
HERITAGE BANK LIMITED APPELANT(S)
And
MRS. SADE EUNICE AWOLESI (Substituted For Olumuyiwa Awolesi On 21/2/22) RESPONDENT(S)
RATIO
THE FUNDAMENTAL RIGHT TO FAIR HEARING
The right to fair hearing is a primordial procedural right enshrined in S. 36 of the 1999 Constitution, which subsumes the twin pillars of natural justice: audi alteram partem and nemo judex in causa sua – being the “the twin pillars of justice for the modern society or welfare or egalitarian state…the rule or principles of eternal justice” that must be scrupulously observed whenever a person’s legal rights and obligations fall for determination: OLANIYAN v UNIVERSITY OF LAGOS [1985] 2 NWLR (PT 9) 599 at 623 –per Oputa, JSC. It is one of the essential cornerstones of adjudication by judicial process [see AMADI v THOMAS APLIN CO. LTD (1972) 4 SC 228] and consists of the right to information; the right and/or opportunity to make statements as well as confront other statements made against that person; and the right to have the Court or Tribunal take note of such statements. In DEDUWA v OKORODUDU (1976) 1 NMLR 236 at 246, the Supreme Court held that “a fair hearing must of course be a hearing that does not contravene the principles of natural justice”. Indeed, fair hearing before a fair tribunal is the first test of due process, which cannot be lightly esteemed; and any proceeding plagued by want of fair hearing is liable to be set aside for being a nullity. See OYEYEMI v COMMISSIONER FOR LOCAL GOVERNMENT, KWARA STATE & ORS [1992] 2 NWLR (PT. 226) 661 at 685- per Nnaemeka-Agu JSC, VICTINO FIXED ODDS LTD v JOSEPH OJO & ORS (2010) 4 SCM 127 at 135-136 and BAMGBOYE v UNIVERSITY OF ILORIN [1999] 10 NWLR (PT. 622) 290. PER AFFEN, J.C.A.
WHETHER OR NOT SERVICE OF HEARING NOTICE BEFORE HEARING ANY MATTER IS FUNDAMENTAL TO THE COURT’S JURISDICTION
It is hardly necessary to state that service of hearing notice before hearing any matter is fundamental to the Court’s jurisdiction to hear a matter pending before it. Service of a motion or other Court processes on a party does not obviate the obligation to give notice of hearing of that motion or process. Hearing Notice is a document issued by the Court Registry which gives parties to a suit legal notification of the date(s) on which the suit or an application therein would be heard: DARMA v ECOBANK (NIG) LTD [2017] 9 NWLR (PT. 157) 480. It is the only valid means of informing a party who was absent from Court of the return date. Thus, a Court of law, which is also a Court of equity, ought not to proceed with the hearing of a case or a pending application unless it is satisfied that hearing notice was duly served on a party not present or represented by counsel. See COMPACT MANIFOLD & ENERGY SERVICES LTD v PAZAN SERVICES LIMITED (2019) LPELR-49221(SC) 1 at 26 –per Okoro, JSC, ALHAJI AUWALU DARMA v ECOBANK NIG. LTD [2017] 9 NWLR (PT. 1571) 480 at 511 and NIGERIA AGRICULTURAL & CO-OPERATIVE BANK LTD v MR. LEWECHI OZOEMELAM [2016] 9 NWLR (PT. 1517) 376. PER AFFEN, J.C.A.
THE CONSEQUENCE OF THE FAILURE TO SERVE A PARTY HEARING NOTICE OF A PROCEEDING
Where a party is entitled to notice of a proceeding and there is failure to serve him, the failure is a fundamental defect which goes to the very roots of the competence (or jurisdiction) of the Court to deal with the matter [see LEEDO PRESIDENTIAL MOTEL LIMITED v BANK OF THE NORTH LIMITED & ANOR (1998) LPELR-1775 (SC)], and any order ensuing from a proceeding in which there is failure to serve hearing notice where same is required, constitutes a nullity for which the party adversely affected is entitled ex debito justitiae to have the order set aside. See MBADINUJU v EZUKA (1994) 10 SCNJ 109, NUT TARABA STATE & ORS v HABU & ORS (2018) LPELR-44057(SC), ESTATE OF LATE CHIEF H. I. S. IDISI v ECODRIL (NIG) LTD [2016] 12 NWLR (PT. 1527) 355, UNIBIZ NIG. LTD v COMMERCIAL BANK CREDIT LYONNAISE LTD (2003) LPELR-3380 (SC), TSOKWA MOTORS (NIG) LTD v UBA PLC. (2008) 2 NWLR (PT. 1071) 347 and SGBN LTD v ADEWUNMI [2003] 10 NWLR (PT. 829) 529 amongst a host of other cases. That is an unfortunate scenario with which we are confronted in the instant appeal. PER AFFEN, J.C.A.
WHETHER OR NOT ALL COURTS MUST PRONOUNCE ON ALL ISSUES PROPERLY PLACED BEFORE IT
Binding case law donates the proposition that all Courts lower than the Supreme Court in the judicial hierarchy should pronounce on all issues properly placed before them for determination and not restrict themselves to one or more issues which in their opinion may dispose of the matter. See OJOGBUE v NNUBIA (1972) 8 SC 227, XTOUDOS SERVICES NIG. LTD v TAISEI W. A. LTD [2006] 15 NWLR (PT. 1003) 533, KATTO v CENTRAL BANK OF NIGERIA [1991] 9 NWLR (PT. 214) 126 at 149, OJIKUTU v OJIKUTU (1971) LPELR-2375(SC), OKONJI v NJOKANMA [1991] 7 NWLR (PT. 202) 131 at 150, 151-152, ADEGBUYI v ALL PROGRESSIVES CONGRESS (2014) LPELR-24214 (SC), OYEDIRAN v AMOO (1970) 1 ALL NLR 313 at 317, ATANDA v AJANI [1989] NWLR (PT. 111) 511 at 539 and TITILOYE v OLUPO [1991] 7 NWLR (PT. 205) 519 at 529. The obvious rationale, apart from the demands of fair hearing, is to obviate the risk of possibility that the only issue(s) decided could be faulted on appeal. See BRAWAL (NIG) LTD v F. I. ONWADIKE CO. LTD & ANOR (2000) LPELR-802(SC) 1 at 13-15 –per Uwaifo, JSC. Failure so to do may occasion a miscarriage of justice, especially if the issue(s) not pronounced upon is crucial. However, because instances in which the Court of Appeal as an intermediate Court deems it necessary to order a retrial or the judgment is considered a nullity and further consideration of the matter will prejudice the issues which could arise at the retrial being ordered or in a fresh action between the parties, as the case may be, are treated as a preeminent exception [see SANUSI v AMEYOGUN [1992] 4 NWLR (PT. 237) 527 at 550-551 –per Nnaemeka-Agu, JSC, EDEM v CANON BALLS LTD (2005) 12 NWLR (P. 938) 27 and OSAREREN v FRN (2018) LPELR-43839(SC)], I will permit myself to refrain from considering, and making pronouncement on, the outstanding issues in the instant appeal. Having adjudged the ruling delivered by Marsh, J. on 26/3/09 a nullity liable to be set aside, the proper order to make is to remit the Respondent’s application dated 17/4/07 back to the lower Court for rehearing. Thus, considering and determining the outstanding issues will undoubtedly prejudice the rehearing: a step that would be undesirable and ill-advised. PER AFFEN, J.C.A.
PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment): The litigation from which this appeal stems was previously pending before his Lordship, M. A Dada, J., who, in a considered “ruling” [judgment] delivered on 21/11/05 (which lies at pp. 71- 72 of the records) adjudged Omega Bank Plc [as the Appellant was then known] entitled to recover against Olumiyiwa Awolesi, now substituted by Mrs. Sade Eunice Awolesi (as Defendant) “the sum of N55,388,090.29 and interest from 15/9/04 at the rate of 21% p.a. till today and hereafter at the rate of 6% p.a. until final liquidation of the entire judgment sum, less tax”. It was equally ordered that upon payment of the moneys ordered to be recovered and all other moneys (if any) secured by or under legal mortgage, the Bank (subject and without prejudice to the due exercise of any power of sale for the time being vested on it) would release the security constituted by the mortgage; and that “all parties shall be at liberty to apply to the Court as they may be advised”. Execution was subsequently levied and the mortgage property situate at No. 8, Agbaoku Street, Ikeja, Lagos sold to a third party [Alhaji Roland Olatunji] as evidenced by a Deed of Assignment copied at pp. 80-83 and 216-219 of the records.
On 10/5/06, Dada, J. struck out two separate applications dated 8/3/06 filed on behalf of the Respondent (qua Defendant/Applicant) seeking to set aside the ruling (judgment) of 21/11/05 as well as the execution and sale of the mortgage property. A similar application dated 15/5/06 but filed on 18/5/06 was equally struck out by Dada, J. on 10/7/06 for want of diligent prosecution, whereupon the Respondent engaged a new counsel (Messrs Abiodun Adesanya & Co) which filed a motion on notice dated 17/4/07 (at pp. 249-370 of the records) praying the lower Court for:
“1. AN ORDER of this Honourable Court extending the time within which the Defendant/Applicant may apply to set aside
(a) The ruling delivered in this suit on the 21st November, 2005
(b) The Writ of Attachment and the sale of the immovable property of the Defendant/Judgment Debtor/Applicant lying being and situate at No. 8 Agbaoku Street, Opebi, Ikeja, Lagos,
(c) The sale of the immovable property of the Defendant/Judgment Debtor/Applicant lying being and situate at No. 8 Agbaoku Street, Opebi, Ikeja, Lagos.
2. AN ORDER setting aside the ruling delivered in this suit on the 21st November, 2005.
3. AN ORDER setting aside the writ of attachment and sale of immovable property of No. 8 Agbaoku Street, Opebi, Ikeja, Lagos dated 26th January, 2006.
4. AN ORDER setting aside the sale of No. 8 Agbaoku Street, Opebi, Ikeja, Lagos.
5. An Order restoring the Defendant/Applicant to the possession and ownership of No. 8 Agbaoku Street, Opebi, Lagos.
AND for such further or other orders as this Honourable Court may deem fit to make in the circumstances.
TAKE FURTHER NOTICE that the grounds upon which this application is brought are as follows:
1. The Originating Summons dated the 10th September 2004 in Suit No ID/599M/04 which was struck out on the 10th January 2005 was not revived before the Originating Summons dated 16th February 2005 filed on the 17th February 2005 bearing the same suit number ID/599M/04 was heard and determined thus there was non-compliance with due process and did not comply with the conditions as stated in Madukolu vs Nkemdilim (1962) 2 SCNLR at 587.
2. Thus, all the proceedings and the ruling delivered on the 21st November 2005 were a nullity in Suit No. ID/599M/04.
3. There could not have been service of the Originating Processes and/or issuance of hearing notice on the applicants when there was no duly constituted suit before the Honourable Court. Thus there was non-service of the Originating Process upon the Defendant.
4. Since there was no duly constituted suit before the Honourable jurisdiction to have entertained the matter for Court there was no the Originating Summons dated 16th February, 2005 was never issued as it did not comply with Order 6 Rule 2(1) of the High Court of Lagos State (Civil Procedure) Rules, 2004.
5. No originating process with Suit No ID/391M/2004 between the parties herein was filed or served upon the Defendant/Applicant.
6. The property at No. 8 Agbaoku Street, Opebi, Ikeja, Lagos was sold to Alhaji Roland Olatunji Ayodeji on the 4th January, 2006 prior to the issuance of the writ of attachment and sale of immovable property dated 26th January, 2006 and was therefore wrongful and full of irregularities.
7. No Writ of Execution dated the 18th January 2006 was levied before the Writ of Attachment and Sale of Immoveable Property dated 26th January 2006 was issued.
8. The writ of attachment and sale of immovable property dated 26th January 2006 was not in compliance with Sections 44, 46 and 47 of the Sheriff and Civil Process Act Cap – Laws of Lagos State nor was any leave of Court obtained for and before the issuance of the said writ of attachment.
9. There was no ruling of the Court which informed the writ of attachment and sale of immovable property dated 26th January, 2005.
10. No hearing notice was issued and served on the Applicant in respect of the proceedings of 11th October, 2005 which had led to the ruling of 21st November, 2005 with the effect of robbing the Honourable Court of jurisdiction to have entertained the matter.
11. The Honourable Court lacked jurisdiction to have entertained this suit AND
12. For such other order(s) as this Honourable Court may deem fit to make in the circumstances.”
The Appellant caused to be filed on its behalf a counter-affidavit deposed on 23/5/07 by one Uche Njoku (a legal officer in the employment of the Appellant) as well as a written address (copied at pp. 380–391 of the records). In the interim, M. A. Dada, J. was transferred from the Civil Division to the Criminal Division of the High Court of Lagos State (hereinafter “the lower Court”), whereupon the matter was reassigned to his Lordship, L. G. A. Marsh, J. before whom the Respondent applied by motion ex parte dated 14/1/09 (which lies at p. 409–414 of the records) for: “AN ORDER grating (sic) leave to the Claimant/Applicant (sic) to substitute its name in this suit from Omega Omega Bank Plc to Spring Bank Plc”. It cannot escape notice that A. O. Oduntan, Esq. of counsel for the Defendant/Applicant is recorded as having appeared “for the claimant” in the proceedings of 19/1/09, and even though the Respondent was not the “Claimant/Applicant” as misrepresented in the motion ex parte, judicial imprimatur was given to the substitution (at p. 415 of the records): “Order as prayed (sic)”! The Respondent’s [Defendant’s] application dated 17/4/07 was eventually argued on 12/2/09 in the absence of Appellant’s [Claimant’s] counsel, and in a considered ruling rendered on 26/3/09 (which lies at pp. 420–428 of the records), Marsh, J. recorded an order setting aside the earlier ruling (judgment) entered on 21/11/05 by Dada, J.
This present appeal is an expression of the Appellant’s discontent with the ruling of 26/3/09. By an Amended Notice of Appeal filed with the leave of this Court on 28/2/22 (which relates back to 3/4/09 when the original Notice of Appeal was filed), the Appellant faulted the ruling on four grounds. As enjoined by the Court of Appeal Rules 2021, the parties filed and exchanged briefs of argument. The Amended Appellant’s Brief was filed on 28/2/22, whilst the Amended Respondent’s Brief filed on 18/3/22 was deemed properly filed and served at the hearing of this appeal on 21/3/22. The four issues for determination distilled by the Appellant are:
1. Whether from the circumstances of this case, there were deliberate acts of the Respondent to prevent the Appellant from having the knowledge of the proceedings before Hon. Justice L. G. A. Marsh particularly the proceedings of 12th February, 2009 which resulted in the ruling of 26th March, 2009 and thereby deprived the Appellant a fair hearing?
2. Whether the Learned trial Judge erred in law to have set aside the judgment of Hon. Justice M. A. Dada delivered on 21st November, 2005 on 26th March, 2009 being a final judgment of a Court of coordinate jurisdiction?
3. Whether the Learned trial Judge was in error to have ordered restoration of possession and ownership to the judgment Debtor/Respondent when it was clear that possession and ownership of the property has been transferred by the Appellant to Alhaji Roland Olatunji Ayodeji?
4. Whether Hon. Justice L. G. A. Marsh was not in error to have set aside the sale pursuant to the terms of the judgment of Hon. Justice M. A. Dada delivered on 21st November, 2005 and if the sale to a third party (Alhaji Roland Olatunji Ayodeji) could be set aside in view of the provisions of the Sheriff and Civil Process Act?
The Respondent adopted the Appellant’s issues, but with slight modifications that do not seem to me material, and I will proceed presently to dispose of this appeal on the basis of the issues identified by the Appellant who is the proponent of the appeal after all. Arguing issue one, the Appellant traced the rather chequered trajectory of the suit that generated the instant appeal and pointed out that after the Respondent’s application was struck out by Dada, J. on 10/7/06 for want of diligent prosecution (as shown p. 248 of the records), nothing more was heard until Messrs Abiodun Adesanya & Co. filed the motion on notice dated 17/4/07 seeking to set aside the judgment entered on 21/11/05 by Dada, J. The Appellant maintained that the Respondent’s counsel appeared before Dada, J. on several dates without serving hearing notice or otherwise putting it on notice; that it was not informed even when the case was reassigned to Marsh, J.; and that not having been given notice of the proceeding of 12/2/09, the Appellant was understandably not present (and could not have been present) when Marsh, J. heard the Respondent’s application and proceeded to set aside the judgment of Dada, J. on 26/3/09. In the Appellant’s estimation, the deliberate and consistent acts of the Respondent prevented it from having knowledge of the proceedings resulting in the ruling of 26/3/09 which set aside the judgment of Dada J., and it has thereby been deprived of the right to fair hearing enshrined in s. 36 (1) 1999 Constitution, citing OTAPO v SUNMONU [1987] 2 NWLR (PT. 58) 607 and OGUNDOYIN v ADEYEMI (2001) 7 SC (PT II) 98 and insisting that the hearing before Marsh, J. cannot qualify as fair hearing. The Appellant submitted that any judgment or ruling given without due compliance with S. 36(1) 1999 Constitution has breached the fundamental right of fair hearing and liable to be set aside, calling in aid DEDUWA v OKORODUDU (1976) 9-10 S.C. 392 and MADUKOLU v NKEMDILIM (1962) 2 SCNLR 31. This Court was urged to resolve issue one in favour of the Appellant and set aside the ruling of 26/3/09 for being a nullity.
The Respondent’s reaction is that it never prevented the Appellant from having knowledge of the proceedings before Marsh J. to whom the matter was reassigned administratively upon the transfer of Dada, J. from the Civil Division to the Criminal Division, which is a fact known to the Appellant; and that since the Respondent’s motion was duly served on the Appellant which caused a counter-affidavit and written address to be filed in opposition thereto, the principle of audi alteram partem was satisfied and S. 36(1) CFRN was complied with by the lower Court. The cases of SHAHIMS v AKINOLA [1993] 5 NWLR (PT. 294) 434 and KADUNA TEXTILES LTD v UMAR [1994] 1NWLR (PT. 319) 143 are cited. The Respondent maintained that the Appellant’s counsel failed to exercise due diligence and was absent at the hearing of the motion dated 17/4/07 despite letters by the Respondent’s counsel advising of hearing dates and issuance of hearing notices as admitted in the Notice of Appeal; and that Appellant’s counsel did not show up even when the matter came up earlier before Dada J., hence the records did not include any hearing notices. The Respondent argued that the Appellant’s lack of diligence cannot be blamed on it, insisting that the Appellant was undoubtedly aware of the application to set aside the judgment of 21/11/07 but went to sleep and failed to exercise due diligence even after filing a counter-affidavit and written address in opposition thereto. The case of OKUNRINBOYE EXPORT CO. LTD & 3 ORS v SKYE BANK PLC (2009) 23 SC 88-89 was relied upon; that the Appellant’s right to fair hearing cannot be said to have been breached as the Respondent’s processes were served on the Appellant and the lower Court gave due consideration to the Appellant’s counter-affidavit and written address in its ruling of 26/3/09 (at p. 422 of the Records).
Calling in aid the cases of BARR (MRS) AMANDA PETERS PAM v NASIR MOHAMMED & ANOR [2008] 16 NWLR (PT. 1112) 1 at 48, MILITARY GOVERNOR, LAGOS STATE v ADEYIGA [2012] 5 NWLR (PT. 1293) 291 at 320, DARMA v ECOBANK [2017] 9 NWLR (PT. 1571] 480 at 502, REGD. TRUSTEES, PRESBYTERIAN CHURCH v ETIM [2017] 13 NWLR (PT. 1581) 1 at 43, ADEBAYO v T. S. G. (NIG) LTD [2011] 4 NWLR (PT 1238) 493 at 508, CHAMI v U. B. A. PLC [2010] 6 NWLR (PT 1191) 474 at 497, AJIDAHUN v AJIDAHUN [2000] 4 NWLR (PT 654) 605 at 614 and BILL CONSTRUCTION CO LTD v IMANI & SONS LTD/SHELL TRUSTEES LTD [2006] 19 NWLR (PT 1013) 1 at 14, the Respondent maintained that a party who opts not to utilise ample opportunity given to him to ventilate his grievance cannot be heard to complain of breach of fair hearing; that it is not sufficient for party to merely allege that his right to fair hearing was breached during trial, rather he owes the legal duty to show from the record of trial that the right was in fact and indeed, breached in the course of the proceedings vide ADEYEMI v STATE [2011] 5 NWLR (PT 1239) 1 at 40; that the Appellant should not be given the opportunity to gain advantage from its own wrong, citing ENEKWE v IMB (NIG) LTD [2006] 19 NWLR PT 1013) 146 at 181; that the Respondent followed Order 13 Rule 17 (1) and Order 5 Rule 16(1) and (3) the High Court of Lagos State (Civil Procedure) Rules 2004 which allow for an application to add or substitute a party be made ex parte, hence the Respondent’s ex parte application to substitute the defunct Omega Bank Plc which had fused into Spring Bank Plc was granted by the lower Court, especially as the proof of service of the Respondent’s motion bore an endorsement showing Spring Bank and the Appellant’s counter affidavit deposed by one Uche Njoku contained the address of Spring Bank Plc. The Court was urged to resolve Issue One in favour of the Respondent.
Now, the foregoing are the arguments put forward by the parties in respect of Issue One, which interrogates whether the turn of events in the case at hand reveal deliberate acts of the Respondent to prevent the Appellant from having the knowledge of the proceedings before Marsh, J., particularly the proceedings of 12/2/09 which resulted in the ruling of 26/3/09, and thereby undermined the Appellant’s right to fair hearing. It occurs to me however that the law is not concerned as such with the deliberateness or otherwise of the conduct of litigants as it affects the right to fair hearing. Rather, the preoccupation of the law is with the effect (if any) of parties’ conduct on the fairness of the proceedings. The right to fair hearing is a primordial procedural right enshrined in S. 36 of the 1999 Constitution, which subsumes the twin pillars of natural justice: audi alteram partem and nemo judex in causa sua – being the “the twin pillars of justice for the modern society or welfare or egalitarian state…the rule or principles of eternal justice” that must be scrupulously observed whenever a person’s legal rights and obligations fall for determination: OLANIYAN v UNIVERSITY OF LAGOS [1985] 2 NWLR (PT 9) 599 at 623 –per Oputa, JSC. It is one of the essential cornerstones of adjudication by judicial process [see AMADI v THOMAS APLIN CO. LTD (1972) 4 SC 228] and consists of the right to information; the right and/or opportunity to make statements as well as confront other statements made against that person; and the right to have the Court or Tribunal take note of such statements. In DEDUWA v OKORODUDU (1976) 1 NMLR 236 at 246, the Supreme Court held that “a fair hearing must of course be a hearing that does not contravene the principles of natural justice”. Indeed, fair hearing before a fair tribunal is the first test of due process, which cannot be lightly esteemed; and any proceeding plagued by want of fair hearing is liable to be set aside for being a nullity. See OYEYEMI v COMMISSIONER FOR LOCAL GOVERNMENT, KWARA STATE & ORS [1992] 2 NWLR (PT. 226) 661 at 685- per Nnaemeka-Agu JSC, VICTINO FIXED ODDS LTD v JOSEPH OJO & ORS (2010) 4 SCM 127 at 135-136 and BAMGBOYE v UNIVERSITY OF ILORIN [1999] 10 NWLR (PT. 622) 290.
Perhaps, a synopsis of the facts undergirding this appeal will illuminate the issue under consideration. The defunct Owena Bank Plc [which initially metamorphosed into Omega Bank Plc, and subsequently to Spring Bank Plc before eventually emerging as Heritage Bank Limited, the Appellant herein] granted a N25m Warrant Refinancing Facility (WRF) as well as a N15m Overdraft Facility (OD) to Continental Commodities Limited on the terms and conditions set out in an Offer of Credit Facility dated 7th May 1999. The purpose of these facilities was “to simultaneously finance the supply of cocoa to local processing industries and export under contract to the international market”. The facilities were secured inter alia by a Deed of Legal Mortgage between (or, more appropriately, among) Continental Commodities Limited as “Borrower”, Olumiyiwa Awolesi [who is substituted by the Respondent herein, Mrs. Sade Eunice Awolesi] as “Surety”, and the Bank as lender. The Surety mortgaged all that the property situate at 8 Agbaoku Street, off Opebi Road, Ikeja, Lagos covered by a certificate of occupancy registered as No. 70 at Page 70 in Volume 1995U at the Lands Registry, Lagos in favour of the Bank, and covenanted as between him and the bank to be treated as “a principal debtor and a principal debtor for all principal monies, interest, charges and other liabilities hereby secured and shall not be released by time being given to the Borrower or by anything by reason of which but for this provision the Surety would as surety only have been released”.
The facilities were not repaid as agreed, whereupon the Bank initiated Suit No. ID/559M/2004: Omega Bank Plc v Olumuyiwa Awolesi vide an Originating Summons issued out of the Registry of the High Court of Lagos State on 10/9/2004, praying for the following reliefs:
“1. An order granting the Claimant a right of Foreclosure of the Defendant’s mortgage.
2. An order granting the Claimant right to exercise power of sale over the mortgaged property under the legal mortgage.
3. An order directing the defendant to deliver possession of the mortgaged property to the Mortgagee/Claimant.
In the alternative:
4. An order directing the Defendant/Mortgagor to pay the outstanding debt of N55,388,090.29K as at 31st August 2004 being principal and accrued interest on the debt secured by the mortgaged property to the Claimant.” The records reveal (at pp. 30 and 33 respectively) that his Lordship M. A. Dada, J. granted an order of substituted service on 8/11/04 but subsequently took the view on 1/12/04 that: “The Originating Summons dated 10/9/04 is not premised on any particular Rules of Court and it is therefore incompetent and is hereby struck out”. The Claimant then proceeded to file a fresh Originating Summons dated 16/2/05 (with the same suit number) as follows:
“LET MR. OLUMUYIWA AWOLESI of 26, Emina Crescent, off Toyin Street, Ikeja in Ikeja Judicial Division within forty-two days after service of this summons on him, inclusive of the day or such service, cause and appearance to be entered for him to this summons which is issued upon the application of Owena BANK Nig. Plc, Engineering Close, Victoria Island, Lagos who claims to be entitled of (sic):
1. An order of foreclosure or the mortgage and delivery of possession to the Mortgage/Claimant.
2. Payments of the mortgage debt or sale of the mortgaged property.
Mortgage of property known as 8, Agbaoku Street, Ikeja Registered as 70/70/1995U Land Registry, Alausa, Ikeja Lagos pursuant to the N15 Million facility granted to Continental Commodities Limited secured by the Defendant’s property, for the determination of the following questions:
1. Whether the Claimant is entitled to a right or foreclosure over the defendant’s mortgaged property situate at 8, Agbaoku Street, Ikeja and registered as 70/70/19952 Land Registry
2. Whether the Claimant’s right of sale under the mortgage has crystallized to enable it recover its debt.
3. Whether the Claimant is entitled to an order for payment of debt i.e. the principal and accrued interest of N555,388,090.29K as at 31st August, 2004 and interest at 30% p.a. until date or judgment and thereafter 5% until rail liquidation.
4. Whether the Claimant is entitled to delivery of possession of the mortgaged property.”
An order of substituted service was granted on 20/4/05, and the matter came up on 16/5/05, 12/7/05, 26/9/05, 3/10/05 and 11/10/05 when the Originating Summons dated 16/2/05 was heard by Dada, J. who delivered the ruling [judgment] dated 21/11/05, which was subsequently set aside by Marsh, J. on 23/3/09. It was the setting aside of the ruling of Dada, J. by Marsh, J. at the instance of the Respondent whose application dated 17/4/07 was heard on 12/2/09 in the absence of the Appellant and/or its counsel that generated the instant appeal. The relevant enquiry therefore is as to whether the Appellant’s right to fair hearing was undermined or otherwise dealt with in a manner inconsistent with constitutional guarantees in the circumstances surrounding the hearing of the Respondent’s setting aside application by Marsh, J. on 12/2/09.
Our recourse is to the record of appeal, which reveals (at pp. 405–406) that the matter came up for the first time before Marsh, J. on 3/11/08. A. O. Oduntan appeared for the Defendant/Applicant, but there was no appearance for the Claimant, whereupon the matter was adjourned till 27/11/08 for mention with the rider: “Hearing notice to issue”. On 27/11/08, there was no representation for the Claimant and the matter was adjourned till 17/12/08 for hearing, but the fixture was disrupted by the industrial action embarked upon by Judiciary Staff, and the matter was further adjourned till 19/1/09 for mention. The proceedings at pp. 415-418 of the records show that on 19/1/09, Marsh, J. granted the Respondent’s ex parte application to substitute Spring Bank Plc for Omega Bank Plc, and adjourned the matter till 28/1/09 when it was further adjourned till 4/2/09. There is nothing on record to show that hearing notice was served on the Appellant and/or its counsel against all or any of these various dates. Crucially, A. O. Oduntan, Esq. of counsel for the Defendant/Applicant [Respondent] is recorded to have said on 4/2/09 (at p. 416) that: “I was unable to serve Hearing Notice yesterday. The hearing notice is yet to be served. I wrote them a letter for abundances (sic) of caution; I will seek an adjournment for service of this hearing notice”, whereupon the Court “Adjourned till 9/2/09 for Proof of Service/Arguments”. The proceedings of 9/2/09 did not indicate whether any hearing notice was served, but there was no representation for the Claimant [Appellant] and the case was further adjourned till 12/2/09 when the application was eventually heard. The records capture the proceedings of 12/2/19 (at p. 418) thusly:
“Parties absent.
Mr. A. O. Oduntan for the Defendant/Applicant
No appearance for the Claimants
Oduntan: We have a Motion dated 17th April 2007 seeking to set aside the judgment of this Court dated 21st November, 2005. The claimants have been served. They filed counter-affidavit and written address. We seek to adopt our written address dated 17th April 2007.”
With the above prefatory remarks, A. O. Oduntan, Esq. proceeded to move the Respondent’s motion dated 17/4/07, which culminated in the ruling of 26/3/09 by which Marsh, J. set aside the earlier ruling (judgment) delivered by Dada, J. on 21/11/05. It cannot escape notice that there is no indication that Hearing Notice was served on the Appellant or its counsel against 12/2/09. The Defendant/Applicant’s counsel, A. O. Oduntan merely stated (rather glibly, I must say) that the Claimants have been served and proceeded to talk about the fact that “they filed counter-affidavit and written address”, which only goes to show that the motion dated 17/4/07 was served, but not that hearing notice was served on the Appellant or its counsel. In the absence of anything on record to show that hearing notice was served against 12/2/09 when the Respondent’s motion for setting aside was moved/argued before Marsh, J., it will be difficult to conclude the Appellant knew of the proceedings for that day. See MBADINUJU v EZUKA (1994) 10 SCN 109 at 121, 122 –per Ogundare, JSC. There is no gainsaying therefore that the Appellant’s constitutional right to fair hearing was unmistakably undermined and compromised in the circumstances leading to the hearing of the Respondent’s motion dated 17/4/07 on 12/2/19, and the ruling delivered on 26/3/09 by Marsh, J. (which is predicated on the ‘unfair hearing’ that took place on 12/2/09 behind the back of the Appellant) is standing on quicksand, if it is standing at all. It has no legitimate firm foundation and is bound to crumble.
It is hardly necessary to state that service of hearing notice before hearing any matter is fundamental to the Court’s jurisdiction to hear a matter pending before it. Service of a motion or other Court processes on a party does not obviate the obligation to give notice of hearing of that motion or process. Hearing Notice is a document issued by the Court Registry which gives parties to a suit legal notification of the date(s) on which the suit or an application therein would be heard: DARMA v ECOBANK (NIG) LTD [2017] 9 NWLR (PT. 157) 480. It is the only valid means of informing a party who was absent from Court of the return date. Thus, a Court of law, which is also a Court of equity, ought not to proceed with the hearing of a case or a pending application unless it is satisfied that hearing notice was duly served on a party not present or represented by counsel. See COMPACT MANIFOLD & ENERGY SERVICES LTD v PAZAN SERVICES LIMITED (2019) LPELR-49221(SC) 1 at 26 –per Okoro, JSC, ALHAJI AUWALU DARMA v ECOBANK NIG. LTD [2017] 9 NWLR (PT. 1571) 480 at 511 and NIGERIA AGRICULTURAL & CO-OPERATIVE BANK LTD v MR. LEWECHI OZOEMELAM [2016] 9 NWLR (PT. 1517) 376.
Where a party is entitled to notice of a proceeding and there is failure to serve him, the failure is a fundamental defect which goes to the very roots of the competence (or jurisdiction) of the Court to deal with the matter [see LEEDO PRESIDENTIAL MOTEL LIMITED v BANK OF THE NORTH LIMITED & ANOR (1998) LPELR-1775 (SC)], and any order ensuing from a proceeding in which there is failure to serve hearing notice where same is required, constitutes a nullity for which the party adversely affected is entitled ex debito justitiae to have the order set aside. See MBADINUJU v EZUKA (1994) 10 SCNJ 109, NUT TARABA STATE & ORS v HABU & ORS (2018) LPELR-44057(SC), ESTATE OF LATE CHIEF H. I. S. IDISI v ECODRIL (NIG) LTD [2016] 12 NWLR (PT. 1527) 355, UNIBIZ NIG. LTD v COMMERCIAL BANK CREDIT LYONNAISE LTD (2003) LPELR-3380 (SC), TSOKWA MOTORS (NIG) LTD v UBA PLC. (2008) 2 NWLR (PT. 1071) 347 and SGBN LTD v ADEWUNMI [2003] 10 NWLR (PT. 829) 529 amongst a host of other cases. That is an unfortunate scenario with which we are confronted in the instant appeal.
The Respondent contended that the Appellant’s right to fair hearing cannot be said to have been breached as the Respondent’s processes were served on the Appellant and the lower Court gave due consideration to the Appellant’s counter-affidavit and written address in its ruling of 26/3/09. The point has already been made that service of the application dated 17/4/07 is not a substitute for the failure to serve hearing notice against 12/2/09 when the said application was heard. This being so, I cannot but find and hold that the Appellant’s right to fair hearing was undermined by the fact that the lower Court failed or neglected to satisfy itself that hearing notice was served on the Appellant and/or its counsel against 12/2/09 when Respondent’s application for setting aside was heard; and it is of no moment that the lower Court considered the Appellant’s counter-affidavit and written address in its ruling of 26/3/09, or even that the eventual decision is correct. See TUKUR v GOVERNMENT OF GONGOLA STATE (1989) 9 SCNJ 1, [1989] 4 NWLR (PT. 117) 517. What is material is that there was a clear breach of the rule of fair hearing enshrined in S. 36(1) of the 1999 Constitution in the instant case, and the proceedings and ensuing ruling delivered by Marsh, J. on 26/3/09 is liable to be quashed for being a nullity. See OTAPO v SUNMONU (1987) 5 SC 228. Issue one is accordingly resolved in favour of the Appellant against the Respondent.
Issues two queries the propriety of the setting aside of the ruling (judgment) delivered by Dada, J. on 21/11/05 being a final judgment of a Court of coordinate jurisdiction; issue three faults the lower Court for restoring the Judgment Debtor/Respondent to possession and ownership of the mortgaged property when it was clear that the Appellant had already transferred possession and ownership to a third party [Alhaji Roland Olatunji Ayodeji]; whilst Issue Four revolves around the lower Court’s alleged error in setting aside the sale of mortgage property pursuant to the judgment of Dada, J. and whether the sale to a third party (Alhaji Roland Olatunji Ayodeji) could validly be set aside in light of relevant provisions of the Sheriff and Civil Process Act. All of these issues relate to the orders granted by Marsh, J. in the ruling of 26/3/09 which are incidental to the setting aside of the judgment of Dada, J. Notwithstanding the affirmative resolution of Issue One in favour of the Appellant, I should consider and pronounce on these outstanding issues.
Binding case law donates the proposition that all Courts lower than the Supreme Court in the judicial hierarchy should pronounce on all issues properly placed before them for determination and not restrict themselves to one or more issues which in their opinion may dispose of the matter. See OJOGBUE v NNUBIA (1972) 8 SC 227, XTOUDOS SERVICES NIG. LTD v TAISEI W. A. LTD [2006] 15 NWLR (PT. 1003) 533, KATTO v CENTRAL BANK OF NIGERIA [1991] 9 NWLR (PT. 214) 126 at 149, OJIKUTU v OJIKUTU (1971) LPELR-2375(SC), OKONJI v NJOKANMA [1991] 7 NWLR (PT. 202) 131 at 150, 151-152, ADEGBUYI v ALL PROGRESSIVES CONGRESS (2014) LPELR-24214 (SC), OYEDIRAN v AMOO (1970) 1 ALL NLR 313 at 317, ATANDA v AJANI [1989] NWLR (PT. 111) 511 at 539 and TITILOYE v OLUPO [1991] 7 NWLR (PT. 205) 519 at 529. The obvious rationale, apart from the demands of fair hearing, is to obviate the risk of possibility that the only issue(s) decided could be faulted on appeal. See BRAWAL (NIG) LTD v F. I. ONWADIKE CO. LTD & ANOR (2000) LPELR-802(SC) 1 at 13-15 –per Uwaifo, JSC. Failure so to do may occasion a miscarriage of justice, especially if the issue(s) not pronounced upon is crucial. However, because instances in which the Court of Appeal as an intermediate Court deems it necessary to order a retrial or the judgment is considered a nullity and further consideration of the matter will prejudice the issues which could arise at the retrial being ordered or in a fresh action between the parties, as the case may be, are treated as a preeminent exception [see SANUSI v AMEYOGUN [1992] 4 NWLR (PT. 237) 527 at 550-551 –per Nnaemeka-Agu, JSC, EDEM v CANON BALLS LTD (2005) 12 NWLR (P. 938) 27 and OSAREREN v FRN (2018) LPELR-43839(SC)], I will permit myself to refrain from considering, and making pronouncement on, the outstanding issues in the instant appeal. Having adjudged the ruling delivered by Marsh, J. on 26/3/09 a nullity liable to be set aside, the proper order to make is to remit the Respondent’s application dated 17/4/07 back to the lower Court for rehearing. Thus, considering and determining the outstanding issues will undoubtedly prejudice the rehearing: a step that would be undesirable and ill-advised.
I accordingly record an order setting aside the ruling delivered by Marsh, J. on 26/3/09 for being a nullity. The Chief Judge of Lagos State shall reassign the Respondent’s motion dated 17/4/07 to another Judge of the High Court of Lagos State for rehearing. The parties shall bear and discharge their own costs.
ONYEKACHI AJA OTISI, J.C.A.: My learned brother, Peter Oyinkenimiemi Affen, JCA, made available to me a copy of the judgment, in draft form, in which this appeal was allowed. I agree with, and adopt as mine the resolution of the issues as ably done by my learned brother. I will only make few comments in support.
Service of a hearing notice on a party to notify him of the hearing date of a matter is fundamental to the competence of the Court to hear the matter. It is foundational to the administration of justice. It ensures that the adverse party is given an opportunity to be heard in every aspect of the case before the Court issues any order that may unfavourably affect him under the principle of audi alterem partem, which is one of the legs of natural justice. Fair hearing demands that each party in a dispute is given opportunity to be heard. It is the service of hearing notice that confers on the Court the jurisdiction to entertain the matter before it. Therefore, where a party is entitled to notice of a proceeding and there is failure to serve him, the failure is a fundamental defect which goes to the root of the competence or jurisdiction of the Court to entertain the matter; Skenconsult (Nig.) Ltd. & Anor. v. Ukey (1981) 1 SC.6; Leedo Presidential Motel Ltd v. Bank of The North Ltd & Anor (1998) LPELR-1775(SC); Yusuf Dan Hausa & Co. Ltd v. Panatrade Ltd (1993) LPELR-420(SC); Onwubuya & Ors. v. Ikegbunam (2019) LPELR-49373(SC).
Once a hearing date has been fixed, the Court has a duty to notify the parties or counsel of the date, more so when the party was not present in the last proceedings or is unaware of the fixed date of hearing. The Court ought to be satisfied that there was service on a party. If the Court is not so satisfied, it ought not to proceed with the business of the day; Compact Manifold & Energy Services Limited v. Pazan Services Nigeria Limited (2019) LPELR-49221(SC); AG of Rivers State v Ude (2006) LPELR-626(SC).
If the Court proceeds to hear a matter without service of hearing notice on all the parties in the matter, the proceedings and orders made thereat amount to a nullity, no matter how well conducted the proceedings. A party who is affected by an order made by the Court in that circumstance is entitled, as a matter of right ex debito justitiae, to have the order, which amounts to a nullity, set aside; FBN Plc v TSA Industries Ltd (2010) LPELR-1283(SC); Adegbola v Osiyi (2017) LPELR-42471(SC); Achuzia v Ogbomah (2016) LPELR-40050(SC).
For these reasons and for the more comprehensive reasons already given by my learned brother, I also allow the appeal and abide by the orders made in the lead judgment.
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I had read through the draft copy of the judgment just delivered by my learned brother, PETER OYINKENIMIENI AFFEN, JCA, and found that he resolved all the issues involved in this appeal properly.
My learned brother has carefully established that the Appellant was not served with the Hearing Notice on the basis of which the trial Court’s proceedings was predicated. Failure to serve hearing notice on a party entitled to such service is a fundamental defect in the proceedings and fatal to the case. It amounts to a breach of the right of the party who should have been served a fair hearing, a right guaranteed by Section 36(1) of the 1999 Constitution. The consequence of such failure is that the Court lacks jurisdiction to entertain the proceedings, which are thereby rendered null and void. See: OBIMONURE VS ERINOSHO (1966) 1 ANLR 250; SKENCONSULT (NIG) LTD VS SEKONDY UKEY (1981) 1 SC 6; WEMA BANK NIG. LTD VS ODULAJA (2000) FWLR (PART 17) 138 AT 142-143 A-C; A.C.B. PLC VS LOSADA NIG. & ANOR. (1995) 7 SCNJ 158 AT 162. The proceedings and judgment of the lower Court are therefore null and void for breach of the Appellant’s right to fair hearing.
Therefore, I also set aside the ruling delivered by Marsh, J on 26/3/09 for being a nullity. The Chief Judge of Lagos State shall re-assign the Respondent’s Motion dated 17/4/07 to another Judge of the High Court of Lagos State for rehearing.
I also abide by the order made as to costs.
Appearances:
A. M. Makinde, SAN, with him, O. S. Ishola, Esq. For Appellant(s)
Bamidele Ogundele, Esq. For Respondent(s)
