MR. ADEREMI ABIDOGUN v. CHIEF FELIX KOLA OGUNWALE
(2019)LCN/13638(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of July, 2019
CA/AK/11/2017
RATIO
HEARING NOTICE: SERVICE OF A HEARING NOTICE IS A PRE CONDITION TO JURISDICTION
In the case of ENL CONSORTIUM LTD V SHAMBILAT SHELTER (NIG) LTD (2018) LPELR 43902 (SC), PETER-ODILI, JSC puts it more bluntly when he held:
Serving of hearing notice on the appellant is a precondition to the exercise of jurisdiction of the Court below as it is basic to the invocation of jurisdiction of the Court. The flipside of the coin is that non-service of hearing notice therefore robs the Court of jurisdiction to hear and determine the matter and any order made against the party who should have been served with the hearing notice becomes null and void.PER PATRICIA AJUMA MAHMOUD, J.C.A.
FAIR HEARING: NON SERVICE OF A HEARING NOTICE IS A BREACH OF THE FUNDAMENTAL RIGHT TO FAIR HEARING
The appellant, not having been served a hearing Notice for a hearing on the merit, had her fundamental right to fair hearing breached.
This, alone, had vitiated the trial and judgment given. It is set aside and the appeal allowed in terms of the leading judgment allowing the appeal and a trial de novo is ordered before another judge to be so designated by the Hon Chief Judge of Osun State. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES:
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
MR. ADEREMI ABIDOGUN – Appellant(s)
AND
CHIEF FELIX KOLA OGUNWALE – Respondent(s)
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of the Osun State High Court sitting in Ede Judicial Division presided over by Hon. Justice A. O. Oyebiyi and delivered on the 10/06/2016.
The complaint of the appellant is that the writ of summons and all other originating processes in this suit meant for service on them as defendants were initially served on one MR Olusola Adewale on the 19/11/2014. That it was only upon moving a motion filed on the 28/11/2014 challenging the said service that same was set aside. (Pages 29-36 of the printed records refer). The appellant further alleged that the case file was subsequently transferred to the present Court which adjourned it for mention to the 13/01/2015. That as a result of JUSAN strike and annual vacation of the lower Court, this matter did not come up again until the 30/09/2015. That on the said date, the appellant through his counsel withdrew their motion filed on the 26/11/2014 because he had then been personally served with the writ of summons and other originating processes. That on 11/12/2014 they
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embarked on moves for amicable settlement of this claim with the plaintiff/respondent. That this move broke down in November 2015. That after some hiccups and setbacks in the case, the matter was adjourned to the 10/12/2015 by agreement of both counsel. That on the said date his counsel wrote a letter to the Court seeking an adjournment to some suggested dates in January and February 2016 on health grounds and copied the counsel to the plaintiff/respondent. That the registrar of Court informed them that since the Court did not sit and the plaintiffs counsel was not in Court, when a new date was given by the Court, same would be communicated to the parties via hearing notices. The appellant admitted that MR Adesina Sodiq was on the 10/12/2015 served with a motion dated 25/11/2015 from the plaintiff/respondent to set the matter down for hearing. That this motion did not have a return date for its hearing. That unknown to them (appellant and his counsel) the matter had been adjourned to the 11/01/2016 for hearing of the motion, but without a hearing notice issuing to them. That on the said date the matter was heard, concluded and set down for adoption of
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final written addresses. That on a search in the file and records of the Court as evidenced at pages 49 and 50 of the records there is no evidence of any hearing notice on the said MR Adesina Sodiq.
The appellant contended that in order to enable him defend the case effectively and on the merits, he filed an application on notice on the 29/01/2016, for an order to set aside the proceedings conducted on the 11/01/2016, extend time to file and serve the appellants defence together with other relevant processes and to deem them as properly filed and served the appellant having paid relevant filing fees including the sum of N16,400 default fees for late filing of the processes. This motion was heard by the lower Court on the 29/04/2016 which in a considered ruling delivered on the 10/06/2016 dismissed same.
The appellant dissatisfied with this decision and upon the leave of the lower Court sought and obtained on the 27/10/2016 by a notice of appeal filed on the 28/10/2016 appealed to this Court on the following five grounds: –
1. The learned trial judge erred in law when he held that the Appellants counsel was on 10/12/2015 served with
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the hearing notice which fixed the case for hearing on 11/1/2016 through Mr. Adesina Sodiq and he proceeded to dismiss the Appellants motion on notice dated and filed on 29/1/2016 praying to set aside the Lower Courts proceedings of 11/1/2016 and so on, thereby depriving the Appellant of the opportunity to effectively defend the case on merits and thereby occasioning substantial miscarriage of justice to the Appellant.
PARTICULARS OF ERRORS
1. Neither the Appellant nor his Counsel nor Mr. Adesina Sodiq (also known as Mr. Adesina Sodiq) nor anybody representing the Appellants Counsel was ever served on 10/12/2015 or on any other date with any hearing notice which fixed the case and the Respondents motion for setting down for hearing on 11/1/2016 and there is no affidavit or proof of the purported service of the said hearing notice anywhere in the Lower Courts file and records.
2. The only Court process which was served on Mr. Adesina Sodiq on 10/12/2015 and in respect of which the Bailiff deposed to an affidavit of service on 10/12/2015 was the Respondent???s motion for setting down dated 25/11/2015
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(together with the supporting affidavit and Counsels written address).
3. The Respondents motion for setting down was as at 10/12/2015 not fixed for hearing, no hearing date was written on the said motion, no hearing notice had been ordered by the Court to be issued and served and no hearing notice had been served on the Appellant, his Counsel, Mr. Adesina Sodiq and/or anybody representing the Appellant.
4. The Learned Trial Judge was not available in Court and the Lower Court did not sit on 9/11/2015 and 10/12/2015 which were the two adjournment dates proceeding 11/1/2016 when the motion for setting down was moved and granted and when the Plaintiffs case was opened, closed and adjourned for the adoption of Counsels final written addresses on 29/1/2016.
5. The Respondent did not allege in his counter affidavit filed to oppose the Appellants motion dated 29/1/2016 the purported service of the said hearing notice which fixed the case and the Respondents motion for setting down for hearing on 11/1/2016 on Mr. Adesina Sodiq.
6. The Lower Courts finding that Mr. Adesina Sodiq was served with the
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hearing notice is perverse and it has occasioned substantial miscarriage of justice to the Appellant.
2. The Learned Trial Judge erred in law when he raised suo motu and based on his ruling delivered on 10/6/2016 on the allegation that the hearing notice which fixed the case and the Respondents motion for setting down for hearing on 11/1/2016 was served on Mr. Adesina Sodiq on 10/12/2016 without affording the Appellant the opportunity to first react thereto.
PARTICULARS OF ERRORS
1. The Respondent did not allege in his counter affidavit filed to oppose the Appellants motion dated 29/1/2016 the purported service of the said hearing notice which fixed the case and the Respondents motion for hearing on 11/1/2016 on Mr. Adesina Sodiq.
2. The Learned Trial Judge raised and decided suo motu in his ruling the issue of the purported service of the said hearing notice on Mr. Adesina Sodiq, thereby occasioning substantial miscarriage of justice to the Appellant.
3. The Learned Trial Judge erred in law when he refused all the Appellants prayers and dismissed the Appellants motion on notice dated and filed on
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29/1/2016, thereby occasioning substantial miscarriage of justice to the Appellant.
PARTICULARS OF ERRORS
1. The Appellant gave good and substantial reasons to support his application dated 29/1/2016.
2. The Lower Court did not consider and/or adequately consider the reasons given by the Appellant for his said application before it was dismissed.
3. The Appellant has thereby suffered substantial miscarriage of justice.
4. The Learned Trial Judge erred in law when he failed to use his discretion judicially and judiciously when he dismissed the Appellants motion on notice dated 29/1/2016 by relying on the affidavit of service of the Plaintiffs motion on notice for setting down deposed to by the Court Bailiff on 10/12/2015 which did not cover the purported service of any hearing notice on the Defendant, the Defendants Counsel and/or their Agents thereby occasioning substantial miscarriage of justice.
5. The ruling of the lower Court delivered on 10/6/2016 was against the weight of evidence.
NB:- The Appellant intends to file additional grounds of appeal on the receipt of the Lower Courts ruling
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delivered on 10/6/2016 and the record of appeal.
Whereof the appellant sought the order of this Court:
(1) Allowing the appeal and setting aside the ruling of the lower Court delivered on the 10/06/2016.
(2) Granting the appellants motion on notice dated and filed on the 29/01/2016 and
(3) Remitting the substantive case back for trial de novo before the lower Court.
In support of his appeal, the appellant filed his brief of argument on the 30/11/2017 which was deemed on the 14/11/2018. The appellant also filed a reply brief on the 14/01/2019 which was deemed on the 09/04/2019. In arguing the appeal MR. G. A. Adesina of counsel for the appellant adopted both briefs as their legal arguments in support of the appeal. In the brief counsel submitted two issues for determination by the Court thus:-
(1) Whether the Lower Courts proceedings of 11/1/2016 was valid and ought not to be set aside when there was no hearing notice issued by the Lower Court, there was no service of any hearing notice on the Appellant, his Counsel and/or their Agents and when they were never in any other manner informed of the said date,
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considering all the other facts and circumstances of this appeal (Distilled from Grounds 1, 2 and 5 of the Grounds of Appeal)
(2) Whether the Lower Courts refusal to grant the Appellants alternative prayers in the motion dated 29/1/2016 to reopen the case to enable the Appellants Counsel cross examine the Respondents only witness and so on does not amount to denial of fair hearing and miscarriage of justice to the Appellant? (Distilled from Grounds 3 and 4 of the Grounds of Appeal).
After a detailed submission on the two issues as contained at pages 7-13 of the brief, MR Adesina urged the Court to resolve both issues in favour of the appellant, uphold the appeal, set aside the interlocutory ruling of the lower Court delivered on the 10th June, 2016, set aside the proceedings of 11/01/2016, re-open the plaintiffs case, set aside the plaintiffs final address, extend time to file the defendants defence and other processes, deem same as properly filed and served and order for hearing de novo of this matter before another judge of the Osun State High Court.
In opposition to the appeal the appellant
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filed a brief of arguement on the 19/11/2018 in which he raised a sole issue for determination as follows:-
Whether the trial Court was justified to have dismissed the appellants application dated 29/01/2016 to set aside the proceedings of the 11th day of January, 2016.
In arguing the two issues, MR A. Moronkeji of counsel for the respondent adopted the brief as their legal arguments in opposition to the appeal. In summary counsel submitted that the proceedings of 11/01/2016 were regular and ought not to and should not be set aside. That the lower Court was right and justified to have dismissed the appellants application dated 29/01/2016. And finally that the lower Court exercised its discretion judicially and judiciously.
I have carefully gone through the submissions of both counsel as well as the printed records of appeal. One issue that calls for urgent determination is whether the appellant was served with hearing notice of the proceedings of 11/01/2016 in which the plaintiff opened and heard his case? The appellant by paragraphs n, o, p, and q of his affidavit in support of his now famous motion of 29/01/2016
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maintained that he was not served hearing notice for the proceedings of 11/01/2016.
The only contention by the respondents counsel in reaction is that the Court satisfied itself that the appellant had been served with hearing notice. The learned trial judge in his ruling did not help matters either on this when he peremptorily found at pages 161-162 thus:
……… I am unable with due respect to find what counsel based his conclusion in paragraph 4.07 on. i.e that there is established proof of absence of service of hearing notice on the defendant and his counsel before the trial commenced. This is because at pages 50 and 51 of the file are affidavits of service on MR Adesina Sodiq (son of Adesina) at her (sic) chambers, Osogbo. The two affidavits of service are dated 10/12/2015.”
The appellant admitted that a process, the motion to set down the matter for hearing in default of defence was served on Adesina Sodiq but insisted that not only was there no hearing notice for the 11/01/2016, the day the motion was heard as well as the substantive matter but that there was no return date endorsed on the face of the motion. In Other words
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there was no information to the appellant as to when that matter would be heard. The Court went further at page 162 of the records to find:-
By agreement of both counsel, case was adjourned to 10/12/2015. It was in the middle of this that the plaintiff applied to set the suit down for hearing which motion was adequately served on the learned counsel. In all the circumstances of this case, it is my view that, failure of counsel to notify his client does not affect the propriety of the service.
On the authority of the decision of this Court in ADEYEMI V LAN & BAKER (NIG) LTD (2000) 7 NWLR PT 663 (CA), the law is pretty well settled that when a case is set down for hearing on a date fixed in open Court in the presence of parties or their counsel, there is clearly no duty on the Court to order hearing notice nor is there a duty on the registry of the Court to issue hearing notice to parties and their counsel. The only challenge in the instant case is why the Court at page 162 tried to put a responsibility on counsel, it has failed to disprove the allegation of counsel that the Court did not sit on the 10/12/2015. In other words the
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Court has to show that the date on which this matter was heard on the 11/01/2016 was taken in open Court. That is the only way the Court will be absolved from the responsibility of issuing hearing notice.
The only reasonable inference to draw from all this is that there was no hearing notice issued to the appellant for the proceedings of 11/01/2016. The undisputed evidence on record is that when the matter came up on the 10/12/2015, not only did the trial Court not sit but the appellants counsel wrote to the Court for an adjournment on the grounds that he was indisposed. So counsel and the appellant were not in Court. This means they were entitled to a hearing notice of the next adjourned date which was 11/01/2016. In the case of LEEDO PRESIDENTIAL MOTEL LTD V BON & ANOR (1998) 10 NWLR, PT 570, 353, Ogundare, JSC on effect of failure to serve hearing notice has this to say:-
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 deal with the matter ……………..
His Lordship
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went further at page 37, PARAS D-E to emphasise that:
any defect in competence is fatal, for the proceedings are a nullity however well conducted and decided; the defect is extrinsic to the adjudication.
In the case of ENL CONSORTIUM LTD V SHAMBILAT SHELTER (NIG) LTD (2018) LPELR 43902 (SC), PETER-ODILI, JSC puts it more bluntly when he held:
Serving of hearing notice on the appellant is a precondition to the exercise of jurisdiction of the Court below as it is basic to the invocation of jurisdiction of the Court. The flipside of the coin is that non-service of hearing notice therefore robs the Court of jurisdiction to hear and determine the matter and any order made against the party who should have been served with the hearing notice becomes null and void. It is therefore wisdom on the part of the Court that any time a party is not in Court; it must satisfy itself that such a party has been served with hearing notice. In other words there is a duty on every Court (appellate Courts inclusive) that once a party or/and his counsel is absent, and it does not matter whether that party is always absent, to
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call for proof of service of hearing notice to ensure that there was service and to put it on record. There is nothing at page 153 of the printed records which carries the proceedings of 11/01/2016, the date in question to show that the learned trial judge bothered himself as to whether or not the appellants counsel was served with hearing notice for that day. Indeed also quite curious was the fact that the learned trial judge not only heard the motion to set the matter down for hearing in default of defence and granted it with automatic alacrity and unusual speed, but went ahead to hear the case of the respondent who had only one witness. The witness was taken in chief by adopting his witness statement and the Court closed the plaintiff/respondents case. This gives the impression that the trial Court was out to scheme out the appellant from the proceedings to the advantage of the respondent. For why else would a Court who has adjourned a matter for hearing of a motion not properly hear and determine that motion and give a date for hearing of the substantive matter with an order for hearing notice to issue to the
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appellants counsel especially as they were not in Court. More worrisome is the attitude of the learned trial judge in trying to shut out the appellant. The preferred principle of practice is to as much as practicable hear all matters on their merits. Here is a defendant who, granted failed to file his defence in time within the rules of Court. He has now come to Court, filed his processes and paid over N16, 000 in default fees. There was no reason in my view why the learned trial judge should not have given the appellants counsel an opportunity to be heard. Fairness and equity demands that. This is especially so as the respondent could have been compensated in costs, even if punitive against the appellant. Trial Courts must at all times ensure that in all matters before them justice and fairness do not only prevail but is seen to prevail. Adjudication is premised on the basic cardinal principle of justice that all parties before a Court be given an opportunity to be heard before a decision is taken affecting them or their interest. I hope this is a big lesson not only to the trial Court but especially to the respondent that at times it is
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better to allow the wheel of justice to grind slowly but have everyone on board than to rush it, leave some behind only to find yourself at the starting line! In wondering aloud, what would have happened if the respondent had not opposed the application of the appellants counsel for extension of time to file their defence and an order to set aside the proceedings of 11/01/2016 but only asked for costs? Maybe, just maybe the matter may have been concluded now and determined on merits. Be that as it may and on the authorities of the Supreme Court referred to earlier on failure to issue hearing notice, I hold that having found that no hearing notice issued to the appellant in respect of the proceedings of 11/01/2016 I hold that the said proceedings are incompetent and a nullity. I therefore set them aside. This appeal succeeds and it is hereby allowed. This matter is to be transferred by the Hon. Chief Judge of Osun State High Court for hearing before another judge. The appellant herein is not to pay a refresh default fees for his defence and other processes. The default fees paid in 2016 is to be revalidated by the trial Court. I make no order as to
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costs in the circumstances of this case.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree with my Lord Patricia Ajuma Mahmoud, JCA in the lead that this appeal be allowed. The appellant, not having been served a hearing Notice for a hearing on the merit, had her fundamental right to fair hearing breached.
This, alone, had vitiated the trial and judgment given. It is set aside and the appeal allowed in terms of the leading judgment allowing the appeal and a trial de novo is ordered before another judge to be so designated by the Hon Chief Judge of Osun State.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I am opportuned to read the lead judgment delivered by my learned brother, PATRICIA AJUMA MAHMOUD, JCA who carefully dealt with the issues raised in the appeal, especially the fundamental issue of service of Hearing Notice. I concurred with the reasoning and conclusion.
The appeal succeeds and hereby allowed.
The matter is to be transmitted to the Hon. Chief Judge of Osun State for assignment to another Judge other than Hon. Justice A. O. Oyebiyi for just and expeditions hearing and determination of the Suit No.
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HED/27/2014.
I adopt the consequential order as to fees mentioned in the lead judgment.
No order as to costs.
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Appearances:
Mr. G.A. Adesina with him, Messrs O.U. Yusuf, T.U. Alaiya and D.M. Akinkunmi For Appellant(s)
Mr. A. Moronkej with him, Mr. G.O. Adediji and Ms. D.O. Ajayi.
For Respondent(s)
Appearances
Mr. G.A. Adesina with him, Messrs O.U. Yusuf, T.U. Alaiya and D.M. Akinkunmi For Appellant
AND
Mr. A. Moronkej with him, Mr. G.O. Adediji and Ms. D.O. Ajayi. For Respondent
