MR. ONIGHA OGAR ONAH V. CHIEF (SIR) LINUS E. OKOM
(2011)LCN/4584(CA)
In The Court of Appeal of Nigeria
On Friday, the 27th day of May, 2011
CA/C/22/2009
RATIO
INTERLOCUTORY AND SUBSTANTIAL APPEAL: WHETHER AN INTERLOCUTORY AND SUBSTANTIVE APPEAL IN THE SAME MATTER CAN BE TAKEN TOGETHER FOR THE SAKE OF TIDINESS, DOING THE NEEDFUL AND EXPEDITIOUS DISPOSAL OF APPEAL MATTERS
To my mind and without belabouring the point, an interlocutory appeal and a substantive appeal in the same matter, for the sake of tidiness, doing the needful and expeditious disposal of appeal matters, ought to and should be taken together. This is more so, when whatever be the fate of the substantive appeal, can be conveniently subsumed or accommodated under whatever could have been the outcome of the interlocutory appeal. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
HEARING NOTICE: PURPOSE OF SERVICE OF HEARING NOTICE; CIRCUMSTANCE WHERE A PARTY DOES NOT REQUIRE THE SERVICE OF A HEARING NOTICE
The purpose of service of hearing notice is in essence, to give notice to the parties. The question then may be asked; what is the essence of service of hearing notice on a party who is already on notice? The simple answer is none. This is more so, in a case where an adjournment date has not been fixed in the absence of or behind the back of such a party. Indeed, such a party, stricto senso, does not require the service of a fresh hearing notice and in all fairness, should not expect one, as it will be totally uncalled for. Thus, where a party in a suit has knowledge and is aware of an adjournment date or can be fixed with such knowledge, if such a party decides to be absent and inexcusably, too, on the stated day, the obvious inference to be drawn from that course of action, is that the party does not intend to contest the case at all or continue with the same any longer, He has backed out, stepped down, thrown in the towel or has abandoned it. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
FILING OF PLEADINGS: WHETHER A DEFENDANT WHO FAILED TO FILE HIS PLEADING IS STILL ENTITLED TO A HEARING
It is duly noted, that it is the practice as established that a defendant who failed to file his pleading is still entitled to a hearing. This is more so, because such a defendant could for instance, decide to reply solely on a point of law which is embedded in the case presented by the plaintiff without the need to file his pleadings and adduce evidence thereon. Such a defendant may even decide to rest his case on the plaintiffs case and merely wish to address the trial court on issues raised in the plaintiff’s case. All these and more are permissible by law. See Faladu v. Kwoi (2003) 9 NWLR (Pt. 826) 643/657. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
FAIR HEARING: WHEN DOES THE PRINCIPLE OF FAIR HEARING BECOMES INVOCABLE; WHETHER THE PRINCIPLE OF FAIR HEARING IS APPLICABLE IN FAVOUR OF A PARTY WHO FAILED TO APPEAR AND DEFEND AN ACTION FILED AGAINST HIM
Howbeit, the principle of fair hearing becomes invocable where a party is untowardly shut out and openly denied the opportunity to be heard. It is not applicable in favour of a party who fails to appear and defend an action filed against him. Thus, a party or his counsel who fails to appear in court on a date fixed for hearing which he is aware of and without justifiably excusing his absence, does so at his own peril and would have nobody to blame but himself. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
HEARING NOTICE: CIRCUMSTANCE IN WHICH THE ORDER ISSUANCE OF HEARING NOTICE BECOMES COMPELLING OR MANDATORY
It is worth restating in the given facts and particular circumstances of the instant case, that the dire need to order issuance of hearing notice only becomes compelling or mandatory in the case of an absent party and not where it is otherwise. Thus, a party who is aware of a hearing date as a result of his presence or that of his counsel in court on the day the adjournment was made requires no further hearing notice to be issued and proof of service in respect thereof. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
JUSTICES
KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
MR. ONIGHA OGAR ONAH Appellant(s)
AND
CHIEF (SIR) LINUS E. OKOM Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): This is a double barrel appeal with one of the barrels firing blanks as we shall see anon. The respondent as plaintiff commenced proceedings against the then defendants jointly and severally in the High Court of Cross River State, Ogoja Judicial Division, claiming declaration that he is entitled to exclusive possession, use and quiet enjoyment of the land in dispute and perpetual injunctive order of restraint, inclusive of N10 Million as general damages for trespass and ‘-” sundry costs. The suit was numbered/registered as Suit No.HJ/68/2001. The learned trial judge, Michael Edem, J. delivered his judgment thereon on 26th July, 2007 and ruling in respect of a motion to set aside the said judgment on 26th November, 2007.
The facts of the case are as follows: The respondent as plaintiff in the court below filed his writ of summons on 23rd July, 2001 and his statement of claim on 14s January, 2002. The reliefs claimed against the then defendang are reproduced below:
“WHEREOF THE PLAINTIFF claims the following Reliefs against the Defendants jointly and severally:-
1. A DECLARATION that the Plaintiff is entitled to the exclusive possession as well as the use and quiet enjoyment of all that piece of landed property lying and situate at Obudu/Katsina Ala Junction, Abuochiche, Bekwarra Local Government Area which land is covered by Certificate of Occupancy No.OG/308/86 dated 2/01/87 and more particularly described and delineated on Survey Plan No. EP/CR.2848 of 4/3/78.
2. AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants, their agents, privies and heirs from entering unto or trespassing or interfering in any manner howsoever with the Plaintiffs aforestated land
3. The sum of N10 Million General Damages for trespass and interference with the plaintiff’s land.
SPECIAL DAMAGES
The sum of N250,000.00 being Solicitors’ cost of this action.”
The defendants were duly served with the writ of summons and statement of claim. On 14th January, 2002, the learned counsel for the defendants informed the trial court that moves to settle the matter amicably, “has broken down.” He then asked for sixty days within which to file their statement of defence. (P.31 of the record) Again, on 18th March, 2002, the learned counsel for the defendants, “urged the Court for a date to regularize matters” as the defendants were yet to file their statement of defence. Similarly, on 2nd December, 2003, the learned counsel for the defendants informed the trial court that, “the statement of defence will soon be filed.” (Pp. 32 & 33 of the record)
On 18th May, 2004, the learned counsel for the defendants, S. E. Adie Esq. sought to withdraw his appearance for the defendants and his application was granted. Inexplicably, on 14th February, 2005, the same learned counsel announced appearance for the defendants and at his instance, the plaintiff’s case was dismissed by the trial court “for want of diligent prosecution and/or abandonment”‘ (Pp. 34 & 35 of the record) Howbeit, on 8th March, 2007, the suit was relisted and adjourned with consent of learned counsel for the parties to 27th March, 2007 for mention, with an award of N1,000.00 costs in favour of the defendants. (P. 7 of the record) For reasons not stated in the record” the trial court did not sit on 27/03/2007 . The suit came up on 7th June, 2007 and it was adjourned with consent of learned counsel for the parties to 20th June, 2007 for mention. Again, the record of appeal did not disclose what happened on 20/06/2007. However, on 18th July, 2007, when the suit came up before the trial court, it was adjourned with consent of both learned counsel for the parties to 23rd July, 2007 for hearing. The learned trial judge then added that, “fresh hearing notice to defendants .” (P.8 of the record)
On 23rd July, 2007, both the defendants and their learned counsel were absent in court without excusing ‘their absence. Upon due application made by the learned counsel for the plaintiff, the case was heard, whereat the plaintiff testified as PW1 and tendered some documentary exhibits. At the close of plaintiffs case, learned counsel for the plaintiff informed the trial court, that the defendants are yet to file their statement of defence. He then applied for a date for judgment. The matter was then adjourned to 26th July, 2007 for judgment. (Pp. 9 – 11 of the record) The judgment was accordingly delivered on the said adjournment date. The trial court granted the reliefs sought by the plaintiff. (pp. 13 – 19 of the record).
On 30th July, 2007, the defendants applied to the trial court by way of motion on notice, to set aside the judgment in question. An affidavit with various exhibits annexed thereto was filed in support of the said motion. The plaintiff in opposition filed a counter – affidavit with an exhibit annexed therewith. (Pp. 20 – 46 of the record) The motion was duly heard, argued, taken and dismissed by the trial court in its ruling which was delivered on 26th November, 2007.
The defendant upon being dissatisfied, brought applications to this Court for extension of time within which to appeal and the same were granted on 20th October, 2008. Subsequently, the defendant filed his notices of appeal on 22nd October, 2008, against both the judgment and ruling on the refusal of the trial court to set aside its judgment. The notices of appeal contained two grounds of appeal and three grounds of appeal respectively. Henceforth in this judgment, the defendant will be referred to as the appellant, while the plaintiff will be called the respondent. On 17th May, 2010, this Court granted leave to the appellant to file and argue four additional grounds of appeal in respect of the notice of appeal against the judgment of the trial court which was delivered on 26th July, 2007.
It is noteworthy, that in the appellant’s amended brief of argument prepared by Matthew Ojua Esq. and filed on 12th January, 2010, it was stated therein that:
“Two notices of appeal are included in the record of proceedings. This appeal shall however be based only the notice- of appeal against the default judgment of 26/7/07 filed on 22/10/08.” (sic)
The learned counsel for the respondent in his brief settled/prepared by Mba E. Ukweni Esq. and deemed filed with leaven of this Court granted on 28th October, 2009, it was urged upon us, to dismiss the appeal against the trial court’s refusal to set aside the judgment in question, on the ground that it has been abandoned and or for want of prosecution. Reliance was placed on Order 17 Rule 10 of the Court of Appeal Rules, 2007 and the case of N. N. B. Plc. v. Denclag Ltd. (2005) 4 NWLR (pt. 916) 549/576 – 577. On this contention by the respondent’s counsel that the appeal against the trial court’s ruling delivered on 26th November, 2007 be dismissed under the requisite rules of this Court, it was submitted by the learned counsel for the appellant in appellant’s reply brief which was deemed filed with leave of this Court granted on 11th May, 2010, that the appeal before this Court is the one “against the judgment of 26th July, 2007″, while the appeal against the trial court’s refusal to set aside its judgment in question, as stated in the trial court’s ruling delivered on 26th November, 2007,” is not before the Court. According to him, the “Court can therefore not strike out what is not before it,” To my mind and without belabouring the point, an interlocutory appeal and a substantive appeal in the same matter, for the sake of tidiness, doing the needful and expeditious disposal of appeal matters, ought to and should be taken together. This is more so, when whatever be the fate of the substantive appeal, can be conveniently subsumed or accommodated under whatever could have been the outcome of the interlocutory appeal. Thus, where as in the instant case, this has not been done and going by the standpoint of the appellant quoted above, it can be safely deduced that the appellant has abandoned the said appeal and the same is accordingly dismissed.
From both the original and additional grounds of appeal, the appellant extracted two issues for determination in this appeal. The issues are reproduced below:
“1. WHETHER THE RIGHT TO FAIR HBARING OF THE APPELLANT WAS NOT BREACHED WHEN THE LEARNED TRIAL JUDGE PROCEEDED TO TRIAL WHEN THE HEARING NOTICE ORDERED WAS NOT SERVED? (GROUNDS 1 & 2) AND ADDITIONAL GROUNDS 4 & 5).
2. WHETHER AFTTER ORDERING THE SERVICE OF A HEARING NOTICE THE JURISDICTION OF THE LOWER COURT WAS NOT FETTERED BY THE FAILURE TO SERVE THE NOTICE? (ADDITIONAL GROUND 3)”
On his part, the respondent adopted the two issues suggested by the appellant with modification thereto and posited one issue therefrom in the following terms:
“Whether, in the circumstance of the case, the learned trial judge breached the appellant’s right to fair hearing when he proceeded to trial without proof of service of the hearing notice ordered by him?”
Reacting to the respondent’s brief, the appellant filed an appellant’s reply brief. At the hearing of this appeal on 2nd March, 2011, both learned counsel for the parties, adopted and relied on their respective briefs of arguments,
Issues one and two in this appeal touched on the right to fair hearing in the given circumstances of this case and in the sense that having ordered the service of hearing notice, the failure to serve the same, has fettered the jurisdiction of the lower court to proceed with the matter. The learned counsel for the appellant referred to Section 36 (1) of the 1999 Constitution, with copious references to the record of appeal and more particularly to the proceeding of 18th July, 2007 with regard to what transpired on that day. Citing and placing heavy reliance on the cases of Attorney -General of Rivers State v. Ude (2006) 17 NWLR (pt. 1008) 436/457; Tubonemi v. Dikibo (2006) 5 NWLR (pt. 974) 565/587; Omebuwa v. Owhofatsho (2006) 5 NWLR (pt.972) 40/67; N.A.C.B, Ltd. v. Obadiah (2004) 4 NWLR (pt. 863) 326/340, the learned appellant’s counsel submitted, ” that once a hearing notice has been ordered to be served on a party, unless and until it is served and there is evidence of service, whatever order is made against such a party would be liable to be declared null and void.” It was then pointed out that even though the learned trial judge was aware that the hearing notice was not served as ordered, he tried to justify the non – service by stating that it, “was a mere unwanted surplusage.”
Let me state at this point, that the learned trial judge in his ruling delivered on 26th November, 2007 on his refusal to set aside the said judgment added that, “their (defendants) Learned counsel was in Court and announced unconditional appearance for them and consented to hearing … The Applicants would do well to realize that hearing notice is not compulsory on each adjournment.” (p. 69 of the record)
Learned appellant’s counsel further argued, “that where as in this case, a Court has positively ordered the service of a process, failure to serve would affect the jurisdiction of the Court and render whatever is done thereafter, null and void.” Reference to, reliance on and copious quotes were made from the following cases: Intagro Ltd. v. Bassey (2008) All FWLR 419 at 450 452; International Bank Plc. v. Onwuka (2009) 8 NWLR (pt.1144) 462/494; SGBN v. Adewunmi (2003) 10 NWLR (pt.829) 526/539 – 540); N.N.P.C. v. Tijani (2007) 35 WRN 17/32; S.P.D.C. (Nig.) Ltd. v. Esowe (2008) 4 NWLR (pt.1976) 72/89.
Learned counsel for the appellant also contended that the right of the appellant was further breached when the Court failed to adjourn and issue hearing notice in order to enable the appellant cross examine the respondent, open his case and also notify him of the date fixed for judgment. He referred to John Andy & Sons Ltd. v. Mfon (2006) 12 NWLR (pt. 995) 461/477 – 480; Sigbenu v. rmafidon (2009) 13 NWLR (pt.1158) 231/253 – 254; Owoniboys Technical Services Ltd. v. U. B. N. Ltd, (2003) 15 NWLR (Pt. 844) 545/562 and other cases, on the above and other submissions. It was stated in conclusion, that failure to serve the hearing notice on the defendants as ordered, before the trial court proceeded to hearing and determination of the case, “drained the Court of jurisdiction.” Thus, the appellant’s constitutional right to fair hearing was brazenly breached by the court below. We were urged to resolve the issues as argued in favour of the appellant and declare the entire proceedings leading to the judgment, inclusive of the said judgment, null and void and of no consequence whatsoever.
On his part and in response to the arguments canvassed above by appellant’s counsel, the learned counsel for the respondent submitted that the appellant who was represented in court by counsel on 18th July, 2007 when the matter was adjourned to 23rd July, 2007 for hearing and with consent of the parties, was not entitled to be served with a hearing notice and “cannot in fairness stay away from Court purposely to find a reason to torpedo the hearing he agreed to and have the judgment nullified.” For this contention, reliance was placed on Achuzia v. Ogbomah (2004) All FWLR (Pt. 227) 508/520 – 523 and Usani v. Duke (2006) 17 NWLR (Pt. 1009) 610; All FWLR (Pt. 340) 1093. Additionally and according to learned respondent’s counsel, this is more so, “that so long as his counsel appeared in Court on 18/7/2007 on his behalf or as representing him, he is deemed to have appeared in the matter.”
We were referred to Ezechukwu v. Onwuka (2005) All FWLR (Pt.280) 1514; C. O. P. v. Effiong Orok Ayi & Ors. (2005) All FWLR (Pt.285) 679; Okon Bassey Ebe v. C. O. P. (2008) 4 NWLR (Pt.1076) 189 and Akpan v. Ekpo (2001) 5 NWLR (Pt. 707) 502/513, where according to learned respondent’s counsel, this Court dealt “with a situation not too dissimilar with the case at hand,”
Learned respondent’s counsel, traced what he described as the antecedents and antics of the appellant in this case and more particularly, to the point that the Appellant(s) and or their learned counsel who consistently sought for time to regularize their position and who persistently failed to file their memorandum of appearance and statement of defence, ” deliberately stayed away from Court on 23/7/2007 only for him (learned appellant’s counsel) to find his way to Court on 26th July, 2007 to listen to the judgment.” He referred to page 54 lines 20 – 25 of the record of appeal for what transpired before the trial court on 22nd October, 2007.
It was further submitted by learned respondent’s counsel that, “fair hearing does not depend on the fancy of either of the parties to a suit.” That the essence and dictates of fair hearing under the 1999 Constitution, “is a hearing which is fair to both parties to the suit, be they plaintiffs or defendants.” Reliance was placed on this point on Okeke v. Oruh (1993) 2 NWLR (Pt. 277) 6221/635, Ndu v. The State (1990) 7 NWLR (Pt. 164) 550/578. Again, that in order “for the appellant’s complaint of breach of fair hearing to succeed, he must show that he came to Court, but was not allowed to defend the case,” We were referred to Bendel Insurance Co. Ltd. v. Edokpolor & Co. Ltd. (1989) 4 NWLR (Pt.118) 725/736; Ekrebe v. Efeizomor II (1993) 7 NWLR (Pt. 307) 588 with the contention that there was no denial of fair hearing to the appellant in the peculiar facts and given circumstances of this case. In another submission, learned respondent’s counsel countered on the argument by appellant’s counsel with regard to issue of an adjournment for the appellant to cross – examine the respondent; that the argument should be discountenanced, more so when there are no grounds of appeal or issues, which touched on the point. It was however, submitted by learned respondent’s counsel for completeness, that a court does not act in vain and in the absence of an application by the appellant for such an adjournment, no such adjournment can be granted by the trial court, since issue of adjournment is discretionary and not one of right, more so, when it is, “dependent on the facts and circumstances of each particular case under consideration.” The cases of N.N.B. Plc. v. Denclag Ltd. (2005) 4 NWLR (Pt. 916) L42; Okere v. Oruh (1990) 6 NWLR (Pt. 606) 175 and Mains Ventures Ltd. v. Petroplast Ind. Ltd. (2000) 4 NWLR (Pt. 651) 151/164-165 were cited in support thereof. We were urged in conclusion to resolve the issues as argued in the negative and against the appellant, dismiss the appeal and affirm the decision of the trial court.
Learned counsel for the appellant in his reply brief, cited the cases of Access Bank Plc. v. U. L. O. consultants Ltd. (2009) 12 NWLR (Pt. 1156) 534/555 and Balonwu v. Obi (2007) 5 NWLR (Pt. 1028) 488/538. He maintained the standpoint, “that a party who is aware of an order of court, whether valid or invalid, null and void, regular or irregular and who might be affected by it”, is obliged to obey it, “as it subsists until it is set aside by the court itself or by a higher court on appeal.” It was added that, instead of challenging or complaining against the said order made by the trial court and with regard to service of hearing notice, that, “the appellant is relying heavily on the efficacy of the order.” Hence, the respondent who did not file a cross appeal or respondent’s notice is bound by the grounds of appeal, filed by the appellant and cannot canvass arguments in opposition thereto. On this contention, reliance was placed on Ikweki v. Ebele (2005) 11 NWLR (pt.936) 397 without stating the page, but quoting therefrom and Saraki v. Kotoye (1992) 9 NWLR (Pt. 264) 156/184. We were urged to strike out paragraphs 4.03 – 4. 09 of the respondent’s brief of argument as the submissions made therein, do not arise from the grounds of appeal filed in this matter.
The main question for consideration in the instant appeal, is whether by the procedure charted and covered by the learned trial judge as reviewed above, the same has rendered the trial court’s judgment in question to remain valid or invalid, null and void or subsisting and sustainable. It is basic that the right to fair hearing is a fundamental constitutional one, guaranteed by the 1999 Constitution of the Federal Republic of Nigeria and the breach of which in a trial or adjudication, renders the proceedings null and void. Thus, any judgment which is given without due compliance therewith is a nullity and is liable to be set aside, either by the court that delivered it or by an appellate court. See Bamgboye v. University of Ilorin (1999) 10 NWLR (pt. 622) 290. The principle of fair hearing is one of substance and not a technical rule. Thus, the question is not simply whether miscarriage of justice has been occasioned because of lack of fair hearing. The question is whether or not the party entitled to it and who is deserving of being heard before his fate is sealed or determined, had in fact been given ample and adequate opportunity to do so. See Kotoye v. C. B. N. (1989) 1 NWLR (Pt. 98) 419.
In a civil case just as in a criminal case, the invocable rule of fair hearing entails inter alia, that any of the parties is entitled to prosecute or defend the matter either in person or by a legal practitioner of his choice, Put differently, to be represented by a counsel of his choice in the conduct of his case. Fair hearing is not a one – sided knife. It can be likened to a two – edged sword that can cut both ways. Indeed, it is not a one way traffic but a dual carriage way which accommodates traffic going in the same direction, in the con of both parties being heard timeously and with attainment of justice as its ultimate destination. Hence, the principle must not be invoked by the court in favour of one of the parties to the detriment or disadvantage of the other party and undeservingly too. It further denotes, that both parties to a case are entitled to be given equal opportunities to present their respective cases without let or hindrance from the commencement to the conclusion, See Ekpeto v. Wanogho (2004) 18 NWLR (Pt.905) 394/411. It is however to be noted, that the giving of an opportunity is different from taking it. At times, opportunity can be given, without it being taken.
In the instant case, the learned counsel for the appellant vigorously and seriously canvassed arguments on the issue of non-service of the hearing notice, as ordered by the trial court. The purpose of service of hearing notice is in essence, to give notice to the parties. The question then may be asked; what is the essence of service of hearing notice on a party who is already on notice? The simple answer is none. This is more so, in a case where an adjournment date has not been fixed in the absence of or behind the back of such a party. Indeed, such a party, stricto senso, does not require the service of a fresh hearing notice and in all fairness, should not expect one, as it will be totally uncalled for. Thus, where a party in a suit has knowledge and is aware of an adjournment date or can be fixed with such knowledge, if such a party decides to be absent and inexcusably, too, on the stated day, the obvious inference to be drawn from that course of action, is that the party does not intend to contest the case at all or continue with the same any longer, He has backed out, stepped down, thrown in the towel or has abandoned it.
It is worth restating that it is the duty of a court to engender a conducive atmosphere and provide a level playing ground for the hearing of a matter. It is however, not the duty of a court to ensure that a party takes advantage of the opportunity given or offered to him in the course of hearing of the case.
Indeed, a party who deprives himself of the golden opportunity of being heard fairly, cannot turn around and lampoon the court, by blaming it of denial of fair hearing. After all, you can only take a horse to the water, you can definitely not force it to drink. The need for the court to strike an even balance between the parties, must be vividly remembered by a party who vouchsafe fair hearing, Thus, where a party has been accorded adequate opportunities to be present and put across his case or defence, if such a party fails in this regard, he is obliged to remain silent and keep his peace forever. In the instant case, despite all the indulgence given to the appellant, the filing of his pleadings, that is, his statement of defence, still remained a distant and far fetched pipe dream. Rather, the learned counsel for the appellant, who ought to know better, indulged in and played peek-aboo with the trial court. A case of here today, gone tomorrow. An opportunity is to be taken, so long as it is availing and not otherwise. At times, an opportunity once lost or forfeited can never be regained.
A party who fails, falters and refuses to stand up and be counted when the chips are down and when it matters most, cannot be heard to complain that he has been denied his right of fair hearing. When the right of fair hearing was placed at his doorstep, he by – passed and treated it with disdain. In the instant case, the appellant’s counsel who stayed away on the date fixed for hearing, became elusive or evasive, since he admitted on record that he was in court on the date judgment was delivered in the matter, without bothering or having the courtesy to announce his appearance and at least avail the trial court with the reason if any for his absence in court and thereafter make requisite applications if any or at least appraise the trial court with whatever be the latest position or development in the case in so far as they are concerned. All these and more cannot be left to the realm of conjecture they must be clearly stated and convincingly too, before the trial court will be expected to do the needful. As stated by Abraham Lincoln, “it is true that you can fool all the people some of the time, you can even fool some of the people all the time, but you cannot fool all the people all the time.” Hence, a court can indulge a party in the judicial process for some time, but definitely not for all times. Indeed, a trial court judge who is the dominus litis of proceedings in his court has the unfettered right to withdraw an indulgence, draw the line and refuse the exercise of a discretion, at the point when the fair hearing in the matter will be compromised, compounded or rendered comatose; when it will not be really fair to the other party and be self serving to the party who clamour for it.
In the instant case, the appellant had previously succeeded in getting the case struck out for want of diligent prosecution, before it was relisted at great pains and costs to the respondent. The appellant who has exhibited tardiness and a lackadaisical approach to the defence of respondent’s claim, cannot be heard to complain of any denial of fair hearing on the basis that he has been shut out from presenting his defence, which has not been placed before the trial court. The appellant has persistently/repeatedly failed to file his pleadings in the matter. Where is the defence for goodness sake? None has been filed or presented. It is thus non – existent. Parties should not be over indulged or given undue leverage to play on the court’s intelligence or hold it to ransom by engaging in some antics or tactics that are blatantly unhelpful to the cause of justice which we all seek and pursue in the adjudication process.
It is duly noted, that it is the practice as established that a defendant who failed to file his pleading is still entitled to a hearing. This is more so, because such a defendant could for instance, decide to reply solely on a point of law which is embedded in the case presented by the plaintiff without the need to file his pleadings and adduce evidence thereon. Such a defendant may even decide to rest his case on the plaintiffs case and merely wish to address the trial court on issues raised in the plaintiff’s case. All these and more are permissible by law. See Faladu v. Kwoi (2003) 9 NWLR (Pt. 826) 643/657.
Howbeit, the principle of fair hearing becomes invocable where a party is untowardly shut out and openly denied the opportunity to be heard. It is not applicable in favour of a party who fails to appear and defend an action filed against him. Thus, a party or his counsel who fails to appear in court on a date fixed for hearing which he is aware of and without justifiably excusing his absence, does so at his own peril and would have nobody to blame but himself.
In its bid to maintain a proper balance in its handling of the imaginary scale of justice, a court does not make it a habit to give to a party what has not been asked for. Thus, courts do not grant reliefs which have not been claimed by a party. See Union Beverages Ltd. v. Owolabi (1988) 1 NWLR (Pt.68) 128. In this vein, a court has a duty to hear and determine all applications properly brought before it. Hence, where there is no such pending application, there is nothing to be considered, granted or refused by a court. It is basic that, principles of equity and or fairness assist only the vigilant and not the indolent who left things undone until irreparable cum irreversible harm or damage has been wrought.
Thus, the decision whether or not to grant an adjournment is at the discretion of the trial court. And once that discretion has been properly, judicially and judiciously exercised, an appellate court will not interfere therewith. See Odusote v. Odusote (1971) 1 NMLR 228.
It is worth restating in the given facts and particular circumstances of the instant case, that the dire need to order issuance of hearing notice only becomes compelling or mandatory in the case of an absent party and not where it is otherwise. Thus, a party who is aware of a hearing date as a result of his presence or that of his counsel in court on the day the adjournment was made requires no further hearing notice to be issued and proof of service in respect thereof. In the instant case, learned counsel for the appellant admitted and conceded severally and serially, that they did not file either a memorandum of appearance or statement of defence. Importantly, learned counsel who has not been readily forthcoming with the trial court, stated in the course of proceeding on 22nd October, 2007 that he was present in court when the judgment was delivered and went to Nyanya village where he met and informed the appellant and his family about it. (p. 54 of the record). This presupposes that he knew all along where and how to contact the appellant. In a recent decision of the Supreme Court, Newswatch communications Ltd. v. Atta (2006) 12 NWLR (pt.993) 144/171 per Tobi, JSC it was observed that:
“The principle (fair hearing) is not available to a party who sets a trap in the litigation process against the court and accused the court of assumed wrong doing even when such so called wrong doing is, as a matter of fact, propelled or instigated by the party, through his counsel.”
Regarding the supposedly absolute entitlement of the appellant to address the court on the evidence led, as argued by the learned counsel for the appellant, this can only be done by a party who is present in court and gave indication of such a line of action. Again, in instances where the facts are straight forward and in the main, remain uncontested, with the plaintiff requiring minimum proof, the trial judge could as well and would be free to dispense with final addresses from the learned counsel for the parties. After all, cogent and credible evidence determine cases and not the advocacy or brilliance of counsel as espoused in an address which is but a poor substitute for properly adduced evidence before a trial court.
Ready recourse to invocation of principle of fair hearing and its application are not automatic. Nowadays, the trend is for litigants to latch onto and harp on breach of right of fair hearing on appeal as if it is a cure it all medication or magic wand that conjures all the wishes of a magician. Fair hearing is not a ready made handy tool to be utilized in an all comers and all purposes scenario. It is a principle grounded in fairness and impartiality which must be based on the particular given facts and peculiar circumstances of a case. Indeed, the same dosage does not and cannot cure all ailments. Thus, it is only the facts of each case that will determine or influence the invocation cum application or otherwise of the principle of fair hearing. The principle or its application pales into insignificance when exposed to the bright lights of the facts of the particular case. See Orugbo v. Una (2002) 16 NWLR (Pt.792) 175.
In conclusion and having regard to what I have said above and guided by the availing authorities, the issues canvassed in this appeal are resolved against the appellant and in favour of the respondent’ I therefore find that the appeal lacks merit. I accordingly dismiss it and affirm the decision of the trial court. The respondent is entitled to costs which is fixed at N30,000.00 against the appellant.
KUMAI BAYANG AKAAHS, J.C.A. I am read the judgment of my learned brother, Oredola, JCA. I am in complete agreement that the appellant cannot invoke lack of fair hearing in order to reverse the judgment delivered by the lower court delivered on 26/7/2007 after a tortuous delay of six years occasioned by the appellant. There is no appeal against the substantive suit. The appeal is against the Ruling of the learned trial judge delivered on 26/11/2007 refusing to set aside the judgment he delivered on 26 /7 /2007. The Appellant is not entitled to such indulgence. My learned brother, Oredola, JCA has adroitly dealt rather exhaustively with the attitude which learned counsel for the appellant displayed in the handling of the case in the lower court that renders it impossible to give the appellant a sympathetic hearing on appeal. Since there is no appeal against the substantive judgment, the appeal on the interlocutory ruling is incompetent. I strike out the appeal and award N30,000,00 costs to the Respondent against the Appellant.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the privilege of reading before now the draft of the lead judgment of my learned brother, Massoud Abdulratrman Oredola, JCA, just delivered. I am in full agreement with the reasoning therein as well as the conclusion that the appeal lacks merit. I also dismiss the appeal and abide by the award of N30,000.00 costs against the appellant.
Appearances
Matthew Ojua Esq., with F. Ogrinya Esq.For Appellant
AND
Mba E. Ukweni Esq. with P. A. Akpoke Esq. and Clarkson Out Esq.For Respondent
