MONTERRY NIGERIA LIMITED v. SINDENG NIGERIA LIMITED (2012)

MONTERRY NIGERIA LIMITED v. SINDENG NIGERIA LIMITED

(2012)LCN/5678(CA)

In The Court of Appeal of Nigeria

On Thursday, the 29th day of November, 2012

CA/B/233/2000

RATIO

FAIR HEARING THE RIGHT TO FAIR HEARING CANNOT BE WAIVED

The right to fair hearing cannot be waived or statutorily taken away. Also all trial courts are enjoined to ensure that hearing notices are issued on parties before embarking on trial of any matter before them.
See Bamgbose v. Unilorin (1999) 10 NWLR (Pt. 622) 290 @ 305 SC; Awoniyi vs. The Register Trustees of the Rosicrucian Order Amorc (Nig) (2000) 6 SC Pt. 1, 103.PER GEORGE OLADEINDE SHOREMI, J.C.A.

FAIR HEARING: WHEN A HEARING IS NOT FAIR

In the case of Military Governor of Lagos State & 4 Ors. vs. Adeyiga & 6 Ors., the Supreme Court says:
“That a hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard or present his case or call evidence. The right to fair hearing is substantially a question of opportunity of being heard. The right lies in the procedure followed in the determination of a case and not in the correctness of the decision arrived at in a case – see FBN Plc. v. TSA Ind. Ltd. (2010) 4-7 S.C. (Pt. 1) 242; Bamgboye v. University of Ilorin (1999) 6 SC (Pt. 11) 72; Awoniyi vs. The Registered Trustees of the Rosicrucian Order Amorc (Nigeria) (2000) 6 SC (Pt. 1) 103; Araka v. Ejeagwu (2001) 12 SC (pt. 1) 99; A.G. Anambra State (1991) 7 SC (Pt. 11) 138 and Mohammed v. Olawunmi (1990) 4 SC 40″PER GEORGE OLADEINDE SHOREMI, J.C.A.

JUSTICES

GEORGE OLADEINDE SHOREMI Justice of The Court of Appeal of Nigeria

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

MONTERRY NIGERIA LIMITED Appellant(s)

AND

SINDENG NIGERIA LIMITED Respondent(s)

GEORGE OLADEINDE SHOREMI, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of the Delta State High Court delivered on 6/4/1998 dismissing the application of the appellant for extension of time within which to apply to set aside the order of court dated 19/10/95.
Setting aside the order of the court dated 19/10/95 as the same is null and void and of no effect whatsoever, the same having been obtained in breach of the principles of fair hearing the applicant herein and or his counsel having not been issued or served with any hearing notice, and or the motion on notice, having been heard in the absence of the applicant/appellant or his counsel.
The learned trial Judge refused to grant the application and accordingly dismissed same with cost.
The applicant now appellant appealed against the ruling/judgment by his notice and ground of appeal at pages 120-122. For ease of reference I quote verbatim the said grounds of appeal:
“Ground One:
The learned trial judge erred in law in failing to observe that entertaining and determining the motion for the defendant/appellant to furnish security in the absence of the defendant/appellant and/or its counsel led to a fatal denial of fair hearing.

Particulars of Error of Law
(1) On 18/5/95 the trial judge ordered that hearing notice be served on the defendant/appellant to enable it and/or counsel attend court. Same was never served on the defendant/appellant and/or its counsel.
(2) The hearing notice ordered was never issued much less served on the defendant/appellant or its counsel.
(3) The application/motion for defendant to furnish security was never served on the defendant or its counsel.
(4) The learned trial judge went on to entertain and determine the motion in spite of the fact that neither the motion nor the hearing notice was served on the defendant or its counsel.
(5) Consequently the whole proceedings including the order made by the trial court on the 19th day of October, 1995 ordering the defendant to furnish security, is in violent breach of the principles and tenets of fair hearing and was null and void and of no efficacy whatsoever.

Ground Two:
The learned trial Judge erred in law in failing to observe that in considering and relying on the plaintiff’s further and better affidavit of 10 paragraphs which affidavit was not served on the defendant/appellant and/or its counsel serious injustice was unleashed on the defendant.

Particulars of Error of Law
1. Plaintiff on 5/10/95 in arguing the motion relied on the 17 paragraphs affidavit in support of the motion as well as on a further and better affidavit of 12 paragraphs dated 29/3/95.
2. On 5/10/95 when the motion was heard the learned trial Judge stated that he could grant the order sought as the plaintiff has not indicated in his affidavit what sufficient security the defendant is to furnish. The learned trial Judge then advised plaintiff to file a further and better affidavit.
3. Consequently the plaintiff/respondent swore to a further and better affidavit of 10 paragraphs and relied on same in moving his motion/application on 19/10/95.
4. The further and better affidavit of 10 paragraphs was never served on the defendant/appellant.
5. That in spite of 4 above, the learned trial Judge used and relied heavily upon this further and better affidavit of 10 paragraphs to grant the order sought.

Ground Three:
The plaintiff/respondent’s affidavit evidence before the court was insufficient to sustain the order of the learned trial Judge for the defendant/appellant to furnish security.

Particulars of Error of Law
1. Repeats and relies on particulars in support of ground 2.

Relief sought from the Court of Appeal
To set aside the said ruling dated 6/4/98 and in its stead uphold applicant’s motion and set aside the trial court’s order dated 19/5/95 and for such further or other orders as this Honourable Court may deem fit to make in the circumstances.”

The background story of the appeal is an interesting one. I will therefore state extensively from the record so as to make the situation clear to any reader.
“1. By paragraph 23 of plaintiff/respondent statement of claim, plaintiff claims against the defendant as follows:-
(i) The sum of N98,015,16 being the amount over paid by the plaintiff to the defendant.
(ii) Interest on the sum of N98,016,16 at the rate of 20% per annum from December, 1992 to the date of judgment and thereafter at the same rate until total liquidation of the judgment sum.
(iii) The sum of N99,901,198,84 (Ninety-nine million, Nine Hundred and One Thousand, hundred and ninety-eight Naira, eighty-forty kobo) being special and general damages suffered by the Plaintiff due to the wrongful seizures of plaintiff’s equipment by the defendant.
2. After the service of the writ on the defendant, the defendant entered appearance by virtue of a Memorandum of Appearance dated 15th day of June 1993 and filed on the 21st of June 1993.
3. Consequently, plaintiff filed its Statement of Claim. At paragraph 23 of the Statement of Claim plaintiff claimed against the defendant the total sum of N100,000,000.00 (One Hundred Million Naira) being special and general damages. The Statement of Claim was attached as Exhibit to a Motion on Notice dated 16th day of March, 1994 but filed on 17/3/94.
4. On 29th day of March, 1995 plaintiff filed a motion on notice dated 28th day of March, 1995 praying the Honourable Court for the following order:-
i. An order of this Honourable Court directing the defendant to furnish sufficient security to fulfill any decree that may be made against them.
ii. An order of this Honourable Court for the accelerated hearing of this suit.
iii. And for such further order or orders as this Honourable Court may deem fit to make in the circumstances.
5. On the 30th day of March, 1995 when the aforementioned motion on notice came up for hearing, defendant’s Counsel U. B. Obilor, Esq. applied for an adjournment because the said Motion dated 28/3/95 was served on them the previous date (29/3/95) and that they needed time to file a counter-affidavit. In the circumstances, the case was adjourned to 18/5 /95 for hearing of the said Motion.
6. On 18/5/95, the next adjourned date parties were absent.
Mrs. R. Craig represented the plaintiff/applicant.
Defendant/Respondent’s Counsel to the Motion was absent.
In the circumstance, the Honourable Court ordered hearing notice to be issued on the defendant. The case was then adjourned to 26/6/95
7. On 26/6/95, the next adjourned date, parties were absent again. O. A. Sanya, Esq., represented the plaintiff/applicant. Defendant/Respondent’s Counsel was absent. It was stated clearly at page 30 of the Record that on this date-26/6/95, there was no proof of service in the Courts file that the said motion on notice to be heard has been served on the defendant in compliance with the Courts order made on 18/5/95. In the circumstance the case was adjourned to 5/10/95 for hearing.
8. On 5/10/95, plaintiff was present in court and was represented by O. A. Sanya, Esq. Defendant was absent and unrepresented by Counsel. From the record, there was no proof of service on the defendant or its Counsel of the hearing notice ordered to be issued and served by the Honourable Court on the 18/5/95.
Notwithstanding the Honourable Court permitted O. A. Sanya, Counsel to plaintiff/applicant to proceed ahead with the said motion dated 28/3/95 but filed on 29/3/95. On the said 5/10/95 the case was adjourned to 19/10/95 for continuation of the hearing of the said motion in the absence of defendant and its Counsel and advised plaintiff/applicant’s Counsel to file a further and better affidavit.
On 19th October, 1995, the plaintiff/applicant was present and represented by Mrs. R. Craig defendant and his counsel were absent. From the record there is no indication that the defendant and counsel were aware that the case was coming up on 19/10/95 for the continuation of the motion.
No hearing notice was issued and served on them. The hearing of the motion continued to conclusion and the Honourable trial court delivered its ruling same date (19/10/95) in the absence of the defendant and/or its counsel. Therefore, the case was adjourned for hearing to 7/12/95 in the absence of the defendant and/or its counsel.
On 7/12/95 plaintiff was present. Defendant was absent. The case was adjourned to 12/3/96 for hearing in the absence of the defendant and/or his counsel and no hearing notice was ordered by the court.
On 12/3/96 plaintiff was present and represented by O. A. Sanya, Esq. Defendant and its counsel were absent. It is not surprising that defendant and its counsel were absent because they were not in court on 7/12/95 (the previous date the matter came up) when the matter was adjourned to 12/3/96 and no hearing notice was issued and served on them. The Honourable Court permitted the plaintiff to open its case through Friday Iserameiya who started testifying same date – 12/3/96 but could not finish before the matter was adjourned to 29/5/96 for continuation of hearing in the absence of defendant and its counsel and no order for hearing notice to be issued and served on the defendant or its counsel was made.
12. On 29/5/96 plaintiff was present and was represented by G. I. Uloko. Defendant was absent and unrepresented. The case was adjourned to 8/7/96 for continuation on the application of Barrister G. I. Uloko on the ground that he had just been briefed. It is worthwhile to mention that the case was adjourned in the absence of the defendant and its counsel and no order was made that hearing notice be issued and served on the defendant and/or its counsel.
13. On 8/7/96 plaintiff was present and represented by G. I. Uloko. Defendant was absent and unrepresented. It is not surprising that defendant and its counsel were not in court because on 29/5/95 when the matter was adjourned to this date (8/7/96) defendant and its counsel were not in court and no hearing notice was served on them. The Honourable Court permitted plaintiff to continue with its case and Friday Iserameiya who started his evidence for plaintiff on 12/3/96 concluded his evidence and plaintiff’s case was closed. The Honourable Court then adjourned the case to 31/11/96 straight away for address.
14. On 13/11/96, case did not go on. Case adjourned to 4/12/96 in the absence of defendant and its counsel. There was no way defendant and its counsel could be in court on 13/11/96 because they were not in court on 8/7/96 when the case was adjourned to 13/11/95 because they were not in court on 8/7/96 when the case was adjourned to 13/11/96 and no hearing notice was issued and served on them.
15. On 4/12/96 plaintiff was present and represented by G. I. Uloko. Defendant was absent and unrepresented. It is not surprising because defendant and its counsel were not in court on 13/11/96 when the case was adjourned to 4/12/96 and the court did not order hearing notice to be issued and served on them. On the said 4/12/95 plaintiff’s counsel opened and concluded his final address. Therefore, the Honourable court adjourned the matter straight away for judgment to 18/12/96, even at this, the court did not make an order for hearing notice to be issued and served on defendant or its counsel that judgment would be delivered on 18/12/96.
16. On the said 18/12/96 the Honourable Court delivered its judgment in the presence of plaintiff and its counsel but in the absence of the defendant and its counsel.”
Abiding by the rules of this court briefs were exchanged by parties.
When the appeal came up for hearing on 16/10/12, the appellant’s counsel J. O. Agbamu Esq., identified and adopted his brief dated 14/4/2003 and filed on 15/4/2003 but deemed properly filed and served on 16/4/2003 he relied on same and urged the court to allow the appeal. Miss Ighodalo for the Respondent identified the respondent’s brief dated 21/2/2010 and filed on 25/2/2010. The counsel adopted same and relied on same as her argument that the appeal be dismissed.
The appellant distilled 2 issues I believe from all the grounds of appeal. The issues are –
(1) Whether the learned trial Judge afforded the appellant fair hearing or fair trial in this case.
(2) Whether the award to the respondent of the total sum of N33,128,400.00 was justifiable in law.
He argued that the appellant was not given fair hearing relying on the case of So Mai Sanka Ltd. vs. Adzege (2001) FWLR Pt. 68 P.1104 @ 117. He argued that the trial Judge ran foul of the principles of fair hearing/trial. He argued that a tribunal or court should conduct its proceedings in such a manner that an observer will conclude that the tribunal or court was fair to all parties. He submitted that the appellant was not given an opportunity to present its case and therefore denied fair hearing.
He concluded that failure of the trial court to order Issuance of Hearing Notice to the Appellant or counsel despite the fact that appellant/counsel were absent at all adjournments is a fundamental vice and therefore denial of fair hearing. He relied on Somai Sanka’s case supra.
The respondent in its brief adopted Issue One as distilled by the appellant. The respondent argued that the case of Sonka cited by the appellant does not support his case. He argued that fair hearing is said to mean a trial conducted according to all the legal rules formulated to ensure that justice is done to all parties to a cause or matter.
He argued that where a party has had opportunity to be heard but refuses to avail himself of that opportunity he cannot be said to have been deprived of his right to fair hearing, the operative word being “opportunity”. He cited the case of Maritime Academy of Nigeria vs. Associated Quantity Surveyors (2008) All FWLR pt. 406 p. 1872, 1879 B-C and the case of Otakpo & Ors. vs. Sunmonu & Ors. (1987) 5 SCNJ 56 and Aladetoyinbo vs. Adewun (1990) 6 NWLR (Pt. 154) 98 @ 108.
He submitted that the appellant was given sufficient opportunity to be heard.
On issue of Hearing Notice the respondent argued that the purpose of issuance of hearing notice is to bring to the knowledge of parties to a suit that they have a matter to answer before the court. It is an essence to give notice to the parties in the case. Referred to Intagro Ltd. v. Bassey & Anor. (2008) All FWLR pt. 450 ,452-453; Peter Asuquo & Anor. Alice Daniel Eshiet & Anor. (2008) All FWLR Pt.401, P.470 @ 972.
He concluded that the trial court acted according to law in proceeding with the case. He urged the court to resolve Issue 1 in favour of the plaintiff.
The modern concept of fairness is found in the celebrated case in which the right to be heard was firmly enunciated in Cooper vs. Wardsworth Board of Works (1975/1 ALR (corom) 1 where it was said to be “of universal application founded on the plainest principles of justice. Fair hearing presupposes first and foremost a hearing. The major feature of this system is the passive and inactive role of the Judge in the prosecution of cases in court.” This emphasizes the active role of counsel for the prosecution and for the defence. What is a hearing worth to an accused who does not understand the language of the court, who does not know the rules of procedure and who therefore cannot present his case. The ordinary layman even the intelligent and educated layman is not skilled in the science of law and he therefore needs the aid and advice of counsel per Oputa, JSC in Josiah against the State (1985) 1 SC 400 @ p. 416 (1985) 1 NWLR (Pt. 1) 125 @ 140.
The above in my view is also applicable in civil matters. In Otapo vs. Sunmonu supra, the Supreme Court concluded that the refusal of the Court of Appeal to hear the appellant or his counsel was in breach of his right to fair hearing when both the rules of natural justice and the constitutional provision of S.33(1) of the 1979 Constitution. The doctrine of fair hearing as enshrined in S.36(1) of the 1979 Constitution as amended is absolutely at the threshold of the Nigeria Adversarial Legal system and any legal system worth its salt. The cherished doctrine of fair hearing is often times taken for granted and thus treated with levity if not with contempt. However the fact is that it is more than a mere technicality or euphemistic or philosophical expression. It is a doctrine of substance. A breach of fair hearing undoubtedly strikes deeply at the Roots and thus renders the whole trial or proceedings null, void and of no effect whatsoever. Chime & Anor. vs. Onyia & 2,798 Ors. (2009) 2 NWLR Pt. 1124, 1.
See also Sigbemu vs. Imafidon (2009) 13 NWLR Pt. 1158, 231 where this court at p. 253 held that where a person’s legal right and obligation are called into questions, he should be accorded all opportunity of being heard before any adverse decision is taken against him with reference to such right and obligation. It is also an indispensable requirement of justice that adjudicating authority shall as far as possible or practicable hear both sides to a dispute to attain the bench mark of a fair trial. See also the judgment of this court in Apatira v. L.I.L.G. Council (2006) 17 NWLR Pt. 1007, 46 @ 62 G-H.

From the above decided authorities referred to and the provision of the Constitution of the Federal Republic of Nigeria and the principles of fairness, can the judgment appealed against stand the acidic test of fair hearing/trial, apart from the first appearance of the counsel to the appellant there is no indication that he or his client was informed of the proceedings till judgment/ruling were given. There is nothing on record to show that the appellant was informed of any proceedings at benchmark shown on Record to be so. The argument of the respondent does not hold water. If it is anything at all, it is in favour of the appellant. He argued that the issuance of Hearing Notice is to enable the respondent to know the case against him. Even if it is so, was any notice of hearing issued to the respondent or his counsel? The right to fair hearing cannot be waived or statutorily taken away. Also all trial courts are enjoined to ensure that hearing notices are issued on parties before embarking on trial of any matter before them.
See Bamgbose v. Unilorin (1999) 10 NWLR (Pt. 622) 290 @ 305 SC; Awoniyi vs. The Register Trustees of the Rosicrucian Order Amorc (Nig) (2000) 6 SC Pt. 1, 103.

The appellant was denied fair hearing therefore his appeal must succeed on this issue. It will therefore not be necessary to consider Issue 2 as it will only be an exercise in futility.
The appeal is allowed. The proceedings, ruling and judgment in Suit No. E/128/93 is hereby declared void, a nullity and therefore of no effect.
The Suit is remitted to the Delta State High Court, Effurun for a proper trial. Cost of N30,000.00 is awarded in favour appellant.

TOM SHAIBU YAKUBU, J.C.A.: I was privileged and read before now the judgment just delivered by my Lord, GEORGE OLADEINDE SHOREMI, JCA, who has meticulously addressed the issue of fair hearing with respect to this appeal. I have nothing more useful to add to his Lordship’s reasoning and conclusion that this appeal be allowed.
I too allow it and abide by the consequential order for the remittance of the case to the Delta State High Court, Effurun, for a proper trial and also the order as to costs, contained in the lead judgment.

TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading the draft of the judgment of my learned brother GEORGE OLADEINDE SHOREMI JCA. I entirely agree with it. I have nothing to add.
I also allow the appeal as the Proceedings, Ruling and Judgment in Suit No. E/128/93 is declared null and void. I also order that the suit be remitted to the Delta State High Court Effurun for hearing de novo. I also award N30,000 costs in favour of the Appellant.

Appearances

J. O. AgbamuFor Appellant

AND

Miss I. E. IghadaloFor Respondent