MISS ANIEMA UDO UKO v. MR. CELESTINE E. UCHA
(2014)LCN/7473(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of October, 2014
CA/C/22/2013
RATIO
CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO FAIR HEARING; THE MEANING OF FAIR HEARING AND THE CONSEQUENCE OF THE ABSENCE OF FAIR HEARING IN A PROCEEDING
I have to agree with learned counsel for the Appellant that the procedure adopted by the trial court was in breach of the principle of fair hearing. Fair hearing implies that the court shall hear both sides not only in the substantive case but also in all material issues in the case before reaching a decision which could be prejudicial to any party in the case, Sheldon v. Bromfield Justices (1964) 2 Q.B. 573 at 578; Bobo v. Nigerian Civil Aviation & Anor. (1991) 7 SCNJ 1, (1991) LPELR-692(SC). In the case of Nalsa & Team Associates v. Nigerian National Petroleum Corporation (1991) 8 NWLR (Pt. 212) 652, (1991) 11-12 SC 83, Karibi-Whyte, JSC said: It is elementary and fundamental principle of our administration of justice to hear all applications properly brought before our courts. Accordingly where on application is properly brought before the court, the principle of fair hearing demands that it should be heard on its merits. See Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587 S.C.
As emphasized in Nalsa’s case, there is a basic distinction between hearing an application and granting the prayers in it. Hearing on application does not necessarily mean granting the prayers sought. But, the application, properly filed, must be heard on its merits and be granted or dismissed. See also Amadi v. Thomas Aplin and Co. Ltd (1972) 4 SC 205, (1972) ALL NLR 413. The procedure adopted by the trial Judge was in breach of the fundamental principle of fair hearing entrenched in the constitution. By striking out a motion on notice, which was before the trial court but not yet served on the Respondent, that is to say, it was not yet ripe for hearing, the learned trial Judge failed to act judiciously on time honoured judicial principles. Fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision, Orugbo v. Bulara Uno (2002) 9-10 SC 61; Attorney General, Rivers State v. Ude (2006) 6-7 SC 54. When a trial has been found to have breached the principle of fair hearing, the proceedings amount to a nullity. The proceedings cannot be salvaged as they are null and void ab initio, Orugbo v. Bulara Una (supra); Attorney-General, Rivers State v. Ude (2006) 6-7 SC 54; Ojengbede v. Esan (supra); Leaders of Company Ltd v. Bamayi (2010) LPELR-1171(SC). The only order to make in the circumstance is to set aside the proceedings. per. ONYEKACHI AJA OTISI, J.C.A.
JUSTICES
DALHATU ADAMU Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH JUDE JELLA Justice of The Court of Appeal of Nigeria
Between
MISS ANIEMA UDO UKO – Appellant(s)
AND
MR. CELESTINE E. UCHA – Respondent(s)
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): The Respondent as plaintiff had commenced Suit No. HUK/MISC.43/2007 in High Court of Akwa Ibom State, Ukanafun Judicial Division under the undefended list, against one Udo Uko Etok, now deceased, as defendant. The late defendant filed a Notice of Intention to Defend, upon which the matter was transferred to the general cause list. In the course of proceedings, the Appellant, on her application, was joined as the 2nd defendant.
The Respondent filed Statement of Claim on the 20/5/2008, while the Amended Statement of Defence of the 1st Defendant and the Appellant was filed on 25/5/2009. Hearing commenced with the evidence of the Respondent. While proceedings were pending, there was an industrial action embarked upon by the Judiciary Staff Union of Nigeria (JUSUN), consequent upon which proceedings were stalled since the trial court could not sit. The 1st defendant and the Appellant were represented by C. M. Idemudo, Esq. and B. I. Ademola-Bello, Esq. of the Chambers of C. M. Idemudo, Esq. The complaint of the Appellant is that they were not subsequently issued with any hearing notice to enable them defend the matter. That when court resumed its sitting on 3/2/2010, the Respondent and his counsel were in court, while the now deceased 1st Defendant and the Appellant, as well as their Counsel, were absent. The trial court did not order hearing notice to issue on them. This position was the same on various dates and still no hearing notice was ordered to issue on them. On 9/6/2010, in the absence of the defendants, they were foreclosed by the trial court from cross examining the PW3. The trial court then called on the Respondent to proceed with the case. Again, no hearing notice was ordered to issue on the 1st Defendant and the Appellant. On 2/11/2010, the trial count foreclosed the 1st defendant and Appellant from defending the action, in their absence. On 4/5/2011, the defendant and the Appellant as well as their counsel were absent. The Respondent’s counsel adopted their final address and the trial Judge adjourned the case for judgment. The trial Judge did not issue hearing notice on the 1st Defendant and the Appellant. The learned trial Judge delivered judgment in default of defence and in the absence of the 1st Defendant and the Appellant on 6/6/2011. The judgment was against the 1st Defendant and the Appellant. A new Counsel for the 1st Defendant and Appellant had filed a Motion on Notice for leave to defend the action, fixed for hearing on 6/6/2011. But, the trial Court did not countenance the motion. The 1st Defendant and the Appellant, dissatisfied with the said judgment appealed to this Court, before the demise of the 1st Defendant.
It is the case of the Respondent that Appellant failed to show diligence in defending the matter. The Record of Appeal would demonstrate that the trial court had shown sufficient indulgence to the Appellant, which was disregarded.
In the Amended Notice and Grounds of Appeal filed on 25/3/2013, the Appellants raised three Grounds of Appeal; and, sought an Order to allow the appeal and set aside the judgment and orders of the lower court delivered on June 6, 2011 by Hon Justice Pius P. Idiong; and to declare the proceedings and judgment in Suit No. HUK/43/2007 a nullity.
The Appellants’ Brief of Argument, settled by Paul A. Udoh, Esq. of Counsel, was filed on 25/3/2013. The Respondents’ Brief settled by Victor Nkonong, Esq. of Counsel on 1/7/2013, and deemed properly filed and served on 9/10/2013. The Appellants’ Reply Brief was filed on 7/11/2013 and deemed property filed and served on 16/9/2014. The respective Briefs were adopted by Mr. Udoh for the Appellant and by Samuel Akpobio, Esq. of Counsel for the Respondent on 16/9/2014.
In the Appellants’ Brief, three Issues have been distilled for determination as follows:
1. Whether the proceedings and judgment of the Court below was not a nullity being in breach of the principles of fair hearing.
2. Whether the finding and judgment of the trial High Court was not perverse thereby occasioning a miscarriage of justice.
3. Whether from the pleadings and evidence of the Respondent and findings of the Court below the friendly loan agreement allegedly entered into between the Plaintiff/Respondent and 1st Defendant was not thereby subsumed and extinguished by the Merger Agreement between the Respondent and the 1st Defendant.
The Respondent adopted the issues raised for determination by the Appellant, but with minor amendments as follows:
1. Whether the proceedings and judgment was a nullity and whether it is in breach of principles of fair hearing.
2. Whether the finding and judgment of the trial High Court was perverse and occasioned a miscarriage of justice.
3. Whether from the pleadings and evidence of the Plaintiff/Respondent and findings of the Court the friendly loan allegedly entered into between the Plaintiff/Respondent and 1st Defendant/Appellant was subsumed and extinguished by the merger agreement between the Plaintiff/Respondent and the 1st Defendant/Appellant.
I shall adopt the issues raised by the parties for the determination of this appeal. I however consider Issue No. 1, as raised by both parties, which affects the competence of the proceedings and judgment on appeal, to be control in determination of this appeal.
Issue No. 1
It was submitted for the Appellant that the proceedings and judgment of the Court below were in breach of the principle of fair hearing and therefore a nullity. Neither the Appellant nor the 1st Defendant was served with any hearing notice upon the persistent absence in court of the 1st Defendant and the Appellant, as well as their Counsel.
The Record of Appeal confirms that Counsel representing the 1st Defendant and the Appellant in the Court below, namely C. M. Idemudo and B. I. Ademola-Bello, Esq. of C. M. Idemudo, Esq. (Essien Ubong Chambers) ceased to appear in Court for the matter prior to delivery of the judgment appealed against. Reliance was placed on the processes filed by the 1st Defendant and Appellant in the Suit and the proceedings of the trial at pages 5, 26, 30, 41, 45, 48, 62, 70, 83B – 134 of the Record of Appeal.
It was submitted that the trial Court was aware of the persistent absence of the 1st Defendant and the Appellant in trial court; as well as the absence of their counsel or his deliberate abandonment of the case in the court below. That it is wrong for the trial Count to continue to hear the case in the absence of the 1st Defendant and the Appellant. It was further submitted that it was wrong for the court below to foreclose the 1st Defendant and the Appellant from defending the action without giving hearing notice to the 1st Defendant and the Appellant who were absent on several occasions to enable the 1st Defendant and the Appellant to engage the services of another regal practitioner to represent them in the action.
At page 123 of the Record of Appeal, the trial Judge on the 3/2/2010 said:
I do not blame the Defendants for not coming to court today, I think their absence has to do with the long strike action embarked upon by the Staff of the Judiciary which was suspended only recently. We will oblige them one more adjournment.
It was submitted that the deceased 1st Defendant and the Appellant were not aware of the adjourned dates and were persistently absent from Court. Their Counsel was also constantly absent from court. In spite of this fact, the 1st Defendant and the Appellant were not issued with any hearing notice for the adjournment date(s) by the court below. Thereby, the trial court failed to give the 1st Defendant and the Appellant on opportunity to be heard.
The trial Judge said in his judgment at page 153 of the Record of Appeal:
The stage was therefore set when this matter came before this Court on 4/5/2011. On that date and in the absence of the defendants and their counsel, this court granted the plaintiff leave to adopt his written final address.
The Court was referred to the proceedings of 4/5/2011 at pages 133-134 of the Record of Appeal. The trial court noted had that the 1st Defendant and the Appellant’s Counsel abandoned or withdrew from the case midway when the 1st Defendant and Appellant were to defend the action. It was submitted that when a counsel withdraws from or abandons a matter, the party represented by the counsel should be put on notice to enable him engage another counsel of his own choice. This is to afford the party an opportunity of presenting his case before the court in a manner that will guarantee fair hearing. To continue hearing the case in the absence of that party amounts to hearing without giving him notice or fair hearing as guaranteed in Section 36 of the Constitution of Nigeria, 1999; relying on the case of Ndukoubo v. Kolomo and Anor (2005) 124 LRCN 479, where, at page 496, Kalgo, JSC said:
And the fact that the Appellant was not in court on various occasions before the withdrawal of his Counsel from the case does not mean that he waives his right to fair hearing or trial, since all trials must conform with settled principles of justice.
Learned counsel for the Appellant referred the court to the proceedings of pages 68-76 of the Record of Appeal. Prior to the delivery of the judgment in the Suit appealed against, the 1st Defendant and the Appellant, through their new counsel, filed motion a notice on 3/6/2011 praying the court for leave to defend the action in the interest of fair hearing. The motion was accompanied by a written address. By the provisions of Order 31 Rule 4 of the High Court (Civil Procedure) Rules, Akwa Ibom State, the written address filed by the Appellant’s new counsel in the court below was to be deemed adopted by the Court below in absence of Counsel for the 1st Defendant and Appellant. Order 31 Rule 4 of the High Court (Civil Procedure) Rules provides:
Oral argument of not more than thirty minutes shall be allowed for each party provided that where any party fails to appeal to adopt his written address on the day fixed for hearing, such address shall be deemed to have been adopted and the Court may proceed to ruling or Judgment.
The trial Judge failed to consider the motion on notice of the 1st Defendant and the Appellant for leave to defend the action and proceeded to deliver Judgment in default of defence and in the absence of the 1st Defendant and the Appellant without hearing notice. It was submitted that the proceedings and judgment of the lower count were in breach the principle of fair hearing having contravened Section 36 of the Constitution of the Federal Republic of Nigeria 1999. That fair hearing is the fundamental constitutional right of a party in an action, the breach of which renders the proceeding and judgment of a Court a nullity. Reliance was placed on Agip (Nig.) Ltd v. Agip Petroli International & Ors. (2010) 119 LRCN 128, Orgli Oko Memorial Farm Ltd. & Anor v. Nig. Agric. & Co-operative Bank Ltd. & Anor (2008) 165 LRCN 91. The court is urged to so hold and to allow the appeal on this issue.
In reply, it was submitted for the Respondent that the proceedings and judgment of the lower court did not amount to a nullity; the action not having been founded on illegality and the trial court having acted within its jurisdiction. It was submitted that the 1st Defendant and the Appellant were given fair hearing throughout the proceedings. Learned Counsel for the 1st Defendant and Appellant attended the trial court religiously at inception of the case. He filed all necessary processes, had the matter transferred to the general cause list. Pleadings were exchanged by the parties. Counsel for the 1st Defendant and Appellant, Idemudo, Esq., cross examined PW1, PW2 and was present during the testimony of PW3 but asked for adjournment to enable him cross examine PW3. The trial court adjourned for this purpose. But, Mr. Idemudo did not appear to cross examine PW3. The Court further adjourned for the 1st Defendant and Appellant’s Counsel to appear on various other dates but he failed to appear. Learned Counsel relied on the proceeding of the lower court as revealed in the Record of Appeal to submit that every opportunity was given to the 1st Defendant and the Appellant to defend the action. Mr. Idemudo who appeared for the 1st Defendant and Appellant never notified the trial court of his withdrawal from the matter. The trial court was not notified of any intention to change counsel by the 1st Defendant and the Appellant. By Order 48 Rule 1 of the Akwa Ibom State High Court (Civil Procedure) Rules, 2009, the legal practitioner, having not applied to withdraw, is bound to be in the matter until judgment.
Even after the defence was foreclosed, Mr. Idemudo appeared and the trial court still gave further dates to enable him recall PW3 for cross examination. After judgment date was fixed, the matter was adjourned but the 1st Defendant and the Appellant as well as their Counsel failed to appear to defend the action. It was further submitted that a hearing notice by the Civil Procedure Rules need not be served on a party whose counsel refuses to prosecute his matter with diligence. The Court was urged to dismiss the appeal and to hold that lack of diligence of a party does not render proceedings of a court a nullity.
Learned Counsel for the Respondent rightly submitted that the Record of Appeal reveals that Mr. Idemudo who appeared for the 1st Defendant and the Appellant of the lower court, initially fully participated in the proceedings before the lower court. On 1/12/2009, Mr. Idemudo sought a date to cross examine PW3, which was granted and the matter adjourned to 9/12/2009. On that date, the trial court did not sit on account of a JUSUN strike. On a further adjournment to 3/2/2010, the 1st Defendant, the Appellant and their Counsel did not appear. The learned trial Judge in further adjourning the matter noted that their absence may be on account of the long strike action by JUSUN. However, Mr. Idemudo appeared on 17/2/2010 when the court did not sit and took an adjournment to 23/3/2010 for cross examination of PW3. But, he failed to appear in court on the adjourned date. The trial court ruled:
The defendant shall be granted one more adjournment to cross examine the PW3. If the (sic) fail to do so on the return date of the case, they shall be foreclosed and the case shall proceed from there.
Notwithstanding the ruling of trial court, on the next date, 21/4/2010, in the absence of the Counsel for the 1st Defendant and the Appellant, the Court further adjourned to 20/5/2010 and again to 9/6/2010. The 1st Defendant and Appellant were foreclosed from cross examining PW3 on 9/6/2010, and, the trial court adjourned to 5/7/2010 for defence to open. On that date, the court again adjourned to 20/7/2010 to further allow the 1st Defendant and the Appellant the opportunity to defend the action.
On 20/7/2010 C. M. Idemudo, Esq. for the 1st Defendant and the Appellant appeared before the trial court and applied to recall PW3 for cross examination. The matter was adjourned to 9/8/2010 for Counsel to address the trial court on the propriety of his application. But on 9/8/2010, Mr. Idemudo, and, the 1st Defendant and Appellant were absent. The trial court of page 128 of Record of Appeal said:
When this matter came before me on 20/7/2010, learned counsel for the defendant prayed the court for adjournment to enable him recall PW3 I had on that day adjourned the case to enable learned Counsel to justify the proposed re-call of PW3 for the purpose of cross examining him. Today, both the defendants and their counsel are absent in Court. Learned counsel has also not written to court. The impression the action of the defendants has created in my mind is that the defendants are not serious in their request to recall the PW3 for the purpose of the cross examination of that witness by them.
The matter was then adjourned to 2/11/2010 for defence. When the Appellant’s Counsel failed to appear, the trial court foreclosed the defence, adjourning the matter to 22/11/2010 for address. There were other adjournments on record for this purpose. On 12/4/2011, the Appellant and Counsel were absent. The learned trial Judge at page 132 of the Record of Appeal said:
I will give the defendants and their counsel the benefits of the doubt today in view of the fact that this court did not sit from 1/2/2011 to 28/3/2011 because of the industrial action embarked upon by the Staff of the Judiciary of this state.
On the next date, 4/5/2011, at page 133 of the Record of Appeal, learned Counsel for the Respondents, Elijah Umoh Esq., informed the trial court thus:
My attention has been drawn to the motion on notice dated 15/12/2010 filed by Chief/Barr. C. M. Idemuo on behalf of the defendants. The defendants are absent in court, Even thought (sic) their counsel who filed that motion was in this court today and even appeared in the other case involving the defendants on record, he left the court without called(sic) this case. I think learned counsel and the defendants have abandoned this motion.
The motion was upon the application of Mr. Umoh struck out. The written address of the Respondent was adopted and the trial court concluded of Pages 133 of the Record of Appeal thus:
It doe(sic) not appear to me the defendants who did not call any evidence in this case dare(sic) desirous to address the court. Consequently, I shall proceed to adjourn the case for judgment.
The matter was then adjourned to 30/5/2011, and further to 6/6/2011 for judgment.
On the said 6/6/2011, the Appellant and Counsel, Mr. Idemudo were absent. However, this exchange transpired between the trial Judge and learned Counsel for the Respondent:
Court to plaintiff’s counsel:
Q: My attention has been drawn to a motion on notice filed by Paul A. Udoh, Esq. as counsel for the defendants in this suit. Has the said processes (sic) been served on you?
A: No. I have not seen such a Process. I have also asked the plaintiff whether the said process has been served on him. His answer is in the negative.
The process referred to by the learned trial Judge was a motion filed on 3/6/2011 by one Paul A. Udoh, Esq. on behalf of the 1st Defendant and the Appellant. The said Paul A. Udoh, Esq. was not in court to move the motion. Neither were the 1st Defendant and the Appellant. The trial court described the said motion as an attempt to arrest the judgment of the court, which is not an application within the purview of the Akwa Ibom High Court (Civil Procedure) Rules. The process was ruled to be on abuse of process and it was struck out. The trial court proceeded to deliver its judgment.
The said motion on notice filed on 3/6/2011 by Paul A. Udoh, Esq. as counsel for the 1st Defendant and the Appellant, found at page 68 of the Record of Appeal, sought the following orders:
1. An order granting leave to the Defendants/Applicants to defend the action on the merit by giving them opportunity to file their written statement on oaths in the interest of fair hearing.
2. An order suspending or setting aside the ruling of this Honourable Court foreclosing the Defendants/Applicants from defending the action and/or adjourning the suit for judgment.
In the supporting affidavit, of page 688 of the Record of Appeal, the Appellant as 2nd Defendant/Applicant deposed as follows:
3. That the Defendants/Applicants were represented in the suit by C. M. Idemuoh, Esq.
4. That the Plaintiff/Respondent gave evidence in the matter and our former Solicitor, C. M. Idemuoh Esq. was prosecuting the suit through his junior counsel B. I. Ademola-Bello, Esq. but did not file our written statement on Oaths.
5. That the said B. I. Ademola-Bello, Esq. was a Youth Corps Member who later left after his service year hence, the Defendants/Applicants were no longer represented in the matter and did not have proper information or notice as to the position of the case.
6. That on 4th May, 2011 our former solicitor C. M. Idemuoh, Esq. without our knowledge or notice withdrew his appearance from the suit.
7. That when I became aware that our former solicitor C. M. Idenudoh, Esq. has withdrawn his appearance, I promptly contacted him and he confirmed that he has withdrawn his appearance in the two suits he handled for us namely suit Nos. HUK/43/2007 and HUK/40/2008.
8. That C. M. Idemudo, Esq. gave me a note to engage the services of another solicitor. The note dated 25th May, 2011 is photocopied, attached and marked Exhibit “A”.
9. That I promptly engaged another solicitor, Paul A. Udoh, Esq. who informs me and I verily believe him that upon his enquiry at the court, he discovered that we were foreclosed from defending the suit and the same was adjourned for judgment.
10. That since the commencement of the suits, the 1st Defendant/Applicant was seriously incapacitated, sick, bed ridden and could not attend court. The medical report dated 26th August, 2010 is attached and marked Exhibit “B”.
11. That although I was later joined in the suit, our former solicitor C. M. Idemudo, Esq. did not keep me abreast on the position of the case until he withdrew his appearance.
12. That the 1st Defendant/Applicant and I are ready willing and prepared to defend the action on the merit to its conclusion.
The note from C. M. Idemudo, Esq. referred to in paragraph 8 of the supporting affidavit and annexed as Exhibit A is found at page 70 of the Record of Appeal. The said note, written on the headed paper of C. M. Idemudo, Esq. of Essien Ubong Chambers and dated 25/5/2011, reads as follows:
Dear Counsel,
Please have these files in respect of HUK/23/2007 and HUK/40/2008. The matters were handled most of the time by my junior who has left. I am not continuing again in active court appearances.
My client has not been unkind to me. Treat her equally well.
Thanks.
Yours faithfully,
(Signed)
Exhibit B, referred to in paragraph 10 of the supporting affidavit, is a copy of the Medical Report of the 1st Defendant, issued by the Akwa Ibom State Psychiatric Hospital Eket, doted 26/8/2010, in which the said 1st Defendant/Applicant was described as having:
A mental illness of senile dementia and has been treated in our hospital since 5th March 2010 till date.
Alongside the said motion on notice was a written address filed by Paul A. Udoh, Esq.
Learned counsel for the Respondent informed the trial court, at page 171 of the Record of Appeal, that neither he nor the Respondent had been served with the said motion on notice filed by Paul A. Udoh, Esq. for the 1st Defendant and the Appellant. In other words, the averments of the Appellant in the supporting affidavit had not been challenged.
I have been prolix in recounting the proceedings before the trial court. From these said proceedings, certain facts are evident. The Appellant appeared last before the trial court on 10/8/2009. C. M. Idemudo, Esq. who was representing the 1st Defendant and the Appellant last appeared before the trial court on behalf of the 1st Defendant and the Appellant on 20/7/2010. The motion on notice that C. M. Idemudo, Esq. filed on 15/12/2010 on behalf of the defendants on record, found at page 62 of the Record of Appeal, sought these orders:
a. Striking out the name of the second defendant as a defendant to the action.
b. Staying further action in the matter pending the recovery in health of the 1st defendant/applicant and any other order(s) that this Honourable Court may deem expedient to make in the circumstance.
The supporting affidavit had annexed as Exhibit A, the medical report of the 1st Defendant already reproduced above.
On 12/4/2011, the 1st Defendant and the Appellant as well as their Counsel were absent. The trial court adjourned the matter, noting that there had been a long drown out industrial action by the State Judiciary staff. But, no hearing notice was ordered to issue on the 1st Defendant and the Appellant who had not appeared in court for more than eighteen months; or on their counsel, who had not appeared in court for about nine months.
On 4/5/2011, learned Counsel for the Respondent informed the trial count that the Counsel for the 1st Defendant and the Appellant had appeared in court for another unidentified case involving the defendants on record, but that he left the court without mentioning the instant case. The same date, the written address of the Respondent was adopted and the trial court concluded, of page 134 of the Record of Appeal as follows:
It doe(sic) not appear to me the defendants who did not call any evidence in this case dare(sic) desirous to address the court. Consequently, I shall proceed to adjourn the case for judgment.
No hearing notice was served on the 1st Defendant and the Appellant of this stage to give them opportunity to address the court. Rather the learned trial Judge presumptuously concluded that the 1st Defendant and the Appellant would not be desirous of addressing the court.
On 6/6/2011, there was a motion on notice in the court’s file, now filed by another counsel, Paul A. Udoh, Esq., on behalf of the 1st Defendant and the Appellant. The Respondent and his Counsel indicated to the trial court that they had not been served, indicating that the motion was not ripe for hearing. Indeed, the learned trial Judge of page 172 of the Record of Appeal said:
The application which is by way of motion on notice is fixed for hearing this morning. That motion was filed on 3/6/2011 which was Friday last week and same was fixed for today, Monday, 6/6/2011. Surprising (sic) the defendants did not make any effort to ensure that the said process is served on the plaintiff.
Order 39 Rule 5 of the Akwa Ibom State High Court (Civil Procedure Rules), 2009 provides that:
Unless a Judge grants special leave to the contrary, there must be at least 2 clear days between the services of all processes in respect of a motion and the day named in the notice for hearing the motion.
Saturdays and Sundays by Order 44 Rule 2 of the said Rules are not reckoned with in the computation of time. If the motion was filed on Friday 3/6/2011, by Monday 6/6/2011, it was certainly not ripe for hearing, and, more so when the Respondent had not been served with the process. Rather than give opportunity to have the Respondent served and then he responds to the motion formally to enable the Appellant’s motion be determined on its merits, the learned trial Judge waved off the weighty averments of the Appellant, struck out the motion and delivered judgment in the matter.
I have to agree with learned counsel for the Appellant that the procedure adopted by the trial court was in breach of the principle of fair hearing. Fair hearing implies that the court shall hear both sides not only in the substantive case but also in all material issues in the case before reaching a decision which could be prejudicial to any party in the case, Sheldon v. Bromfield Justices (1964) 2 Q.B. 573 at 578; Bobo v. Nigerian Civil Aviation & Anor. (1991) 7 SCNJ 1, (1991) LPELR-692(SC). In the case of Nalsa & Team Associates v. Nigerian National Petroleum Corporation (1991) 8 NWLR (Pt. 212) 652, (1991) 11-12 SC 83, Karibi-Whyte, JSC said:
It is elementary and fundamental principle of our administration of justice to hear all applications properly brought before our courts. Accordingly where on application is properly brought before the court, the principle of fair hearing demands that it should be heard on its merits. See Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587 S.C.
As emphasized in Nalsa’s case, there is a basic distinction between hearing an application and granting the prayers in it. Hearing on application does not necessarily mean granting the prayers sought. But, the application, properly filed, must be heard on its merits and be granted or dismissed. See also Amadi v. Thomas Aplin and Co. Ltd (1972) 4 SC 205, (1972) ALL NLR 413.
The procedure adopted by the trial Judge was in breach of the fundamental principle of fair hearing entrenched in the constitution. By striking out a motion on notice, which was before the trial court but not yet served on the Respondent, that is to say, it was not yet ripe for hearing, the learned trial Judge failed to act judiciously on time honoured judicial principles.
Fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision, Orugbo v. Bulara Uno (2002) 9-10 SC 61; Attorney General, Rivers State v. Ude (2006) 6-7 SC 54.
When a trial has been found to have breached the principle of fair hearing, the proceedings amount to a nullity. The proceedings cannot be salvaged as they are null and void ab initio, Orugbo v. Bulara Una (supra); Attorney-General, Rivers State v. Ude (2006) 6-7 SC 54; Ojengbede v. Esan (supra); Leaders of Company Ltd v. Bamayi (2010) LPELR-1171(SC). The only order to make in the circumstance is to set aside the proceedings.
It would serve no useful purpose to consider the other issues raised in this appeal, the proceedings which gave rise to the appeal having been pronounced to be a nullity.Accordingly, this appeal is allowed. The judgment of Akwa Ibom State High Court, Ukanafun Judicial Division delivered in Suit No. HUK/43/2007 on June 6, 2011 by Hon. Justice Pius P. Idiong, J. is hereby set aside; the proceedings and judgment in the said Suit No. HUK/43/2007 being a nullity. It is further ordered that the matter be and is hereby remitted to the Chief Judge of Akwa Ibom State for hearing de novo before another Judge.
Parties shall bear their respective costs.
DALHATU ADAMU, J.C.A.: I have had the privilege of reading in advance the lead judgment of my learned brother, Onyekachi A. Otisi, JCA, in this appeal. On the 1st issue which is on fair hearing, I agree that since there was a breach of fair hearing, the appeal should be allowed. There is no need to consider the other two issues in the appeal. Accordingly, I too hereby allow the appeal and set aside the judgment of the trial court which is in breach of fair hearing. The judgment and proceedings are declared a nullity by me. I abide by the other consequential orders as made in the lead judgment.
JOSEPH JUDE JELLA, J.C.A.: I have been privileged to read the draft of the Judgment just delivered by my learned brother ONYEKACHI A. OTISI, JCA. All the issues have been dealt with accordingly. I also allow the appeal.
Appearances
Paul A. Udoh, Esq.For Appellant
AND
Samuel Akpobio, Esq. for the 1st – 4th RespondentsFor Respondent
