NIGERIAN AGRICULTURAL CO-OP & RURAL DEVELOPMENT BANK LTD. ANOR. v. MBIO OKU IKOT OKU ODUNG MULTI-PURPOSE CO-OP SOCIETY LTD. & ORS.
(2013)LCN/5846(CA)
(2013) LPELR-20202(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 16th day of January, 2013
CA/C/301/2011
RATIO
APPEAL: WHETHER THE APPELLATE COURT CAN FORMULATE ISSUES FROM THE GROUNDS OF APPEAL SUO MOTU
Since the law is now firmly established that this court is at liberty to use and consider issues from the grounds of an appeal which it considers material and crucial in the determination of the appeal, from those formulated by the parties or even ignore some or all issues raised in briefs, I intend to consider issues (ii) and (iii) of the Appellants in the determination of the appeal. Recently, the Supreme Court had restated the law in the case of Chabasava v. Anwasi (2010) 10 NWLR (1201), 163 at 181 per Mukhtar, JSC, (now CJN) that:-
“In facts, the law permits an appellate court, to ignore some or all issues raised in the briefs of argument and formulate its own issues, the way it deems them to be material once they are distilled from the grounds of appeal. See Opara v. D. S. (Nig.) Ltd. (1995) 4 NWLR (Pt.390) page 440; Bankole v. Pelu (1991) 8 NWLR (Pt.211) page 523 and Uko v. Mbaba (2001) 4 NWLR (Pt.704) page 460. PER MOHAMMED LAWAL GARBA, J.C.A.
APPEAL: REQUIREMENT FOR RAISING NEW OR FRESH ISSUE ON APPEAL AND ITS EXCEPTION
Ordinarily, the law is that an issue which is new or fresh can only be properly raised in an appeal with prior leave of the court. The law however makes an exception where the fresh or new issue is one challenging the jurisdiction of a trial or lower court to entertain the action from which an appeal emanated. For an issue which touches or goes to the jurisdiction of a court to entertain a case/appeal, it can be raised as a new or fresh issue in an appeal without the need for prior leave of the court to raise it. See Comfort v. Admo Cases Nig. Ltd. (2000) ALL FWLR (335) 93; Adesanya v. President (2001) FWLR (46) 859, (01) 2 NOLR, 358; FRN v. Ifegwu (2003) 15 NWLR (842) 113; Elugbe v. Omokhafe (2005) ALL FWLR (243) 629, (04) 18 NWLR (905) 319. PER MOHAMMED LAWAL GARBA, J.C.A.
FAIR HEARING: THE DOCTRINE OF FAIR HEARING
The law is now trite and so common knowledge that the provisions of Section 36 (1) of the 1999 Constitution guarantee that in the determination of his civil rights/obligations in judicial proceedings before courts or tribunals established by law, a citizen of Nigeria is entitled to a fair hearing within a reasonable time. In practice, the doctrine of fair hearing envisages that judicial proceedings before the courts or tribunal be conducted in accordance with all legal rules formulated to ensure that justice is done to all the parties therein. It requires the observance of what have become popularly known as the twin pillars of the rules of natural justice, .i.e. audi alteram partem and nemo judex in causa sua. By the principle, a court or tribunal is required and owe the legal duty to provide equal and reasonable opportunity to all the parties in the proceedings before it, to present their respective cases freely. PER MOHAMMED LAWAL GARBA, J.C.A.
FAIR HEARING: BASIC CRITERIA OF THE PRINCIPLR OF FAIR HEARING
The basic criteria and attributes of the principle of fair hearing have been held to be:
“a) that the court or tribunal shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case,
(b) that the court or tribunal shall give equal treatment, opportunity and consideration to all concerned,
(c) that the proceedings be heard in public and all concerned shall be notified of and have access to such place of public hearing,
(d) that having regard to all the circumstances, in every material decision in the case, justice must only be done but must manifestly and undoubted be seen to have been done. See Fagbule v. Rodrigues (2002) 7 NWLR (765) 188; Usani v. Duke (2004) 7 NWLR (871) 116; Kotoye v. CBN (supra); Eshenake v. Gbinije (2006) 1 NWLR (961); Awoniyi v. Reg. Trustees of Rusicrucian Order, Amorc (2000) 6 SC (Pt.1) 103Put simply, in compliance with the guaranteed right to fair hearing, a court or tribunal shall allow the parties to a case to be heard and should listen to both sides on all material issues in a case before delivering a decision in the case. The right to fair hearing is therefore a question of equal and reasonable opportunity provided or given by the court or tribunal to the parties in a case to present their respective cases in the proceedings. It is fundamental and pivotal in all judicial proceedings and the law is firmly established that failure to adhere to it or, any breach of the right will automatically render the proceedings in which the breach occurred, null, void and of no effect whatsoever. See Adigun v. A-G, Oyo State (1987) 1 NWLR (53) 678; App v. Ogunsola (2002) 5 NWLR (761) 484; BON Ltd. v. Adegoke (2006) 10 NWLR (983) 339; Military Governor of Lagos State v. Adeyiga (2012) 2 MJSC (pt.1) 76 at 131.
The law is also settled that the right to fair hearing cannot be taken away by state or waived and so courts or tribunals have a duty to ensure that hearing notices are not only issued but also served on the parties before embarking on the conduct of judicial proceedings in any case which comes before them. See Chigbu v. Tonimas Ltd. (1999) 3 NWLR (593) 115; Bamgboye v. Unilorin (supra) also reported in (1999) 10 NWLR (622) 290 at 305; NACB v. Obadiah (2004) 4 NWLR (863) 326. PER MOHAMMED LAWAL GARBA, J.C.A.
PROCEDURE: ESSENCE OF HEARING NOTICE
The essence of a hearing notice is to put on notice or notify or inform a party or his counsel who are not aware of a date set down by the court in their absence for the hearing of his case. Once a case was adjourned in the presence of a party or his counsel in open court, the law and indeed the principle of fair hearing which applies to all parties, does not require that such a party shall be issued and served with a hearing notice of that date of hearing of which he is fully aware. See Janason Triangles v. C. M. & P. (2002) 15 NWLR (789) 176 at, 192; Onadeko v. UBN (2005) ALL FWLR (250) 57. PER MOHAMMED LAWAL GARBA, J.C.A.
JUSTICE
MOHAMMED LAWAL GARBA justice of The Court of Appeal of Nigeria
UZO I. NDUKWE-ANYANWU justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI justice of The Court of Appeal of Nigeria
Between
1. NIGERIAN AGRICULTURAL CO-OP & RURAL DEVELOPMENT BANK LTD.
2. BEN O. EKPOAppellant(s)
AND
1. MBIO OKU IKOT OKU ODUNG MULTI-PURPOSE CO-OP SOCIETY LTD.
2. DAVID UDO NTUK
3. ARCHIBONG UDO UBEHERespondent(s)
MOHAMMED LAWAL GARBA, J.C.A. (Delivering the leading Judgment): The Respondents herein had sued the Appellants before the High Court of Akwa Ibom State sitting at Ikot Ekpene in suit No.HK/3/1993 which was later transferred to Ikono Division of that court. After trial, judgment was entered in favour of the Respondents on the 6/4/2004 and after execution of the said judgment against the property of the 1st Appellant in 2007, the Appellant applied to the High Court unsuccessfully, to set aside the execution. On the 21/7/2010, the Appellants filed another application before the High Court seeking the following reliefs:-
1. An Order of court extending time for the Defendant/Judgment Debtor/Applicants to apply for setting aside of the judgment that was delivered on 6th April, 2004 by this honorable court in suit No.HKN/3/2003 in violation of or contrary to the principles of fair hearing.
2. An Order setting aside the judgment that was delivered by this honorable court on 6th April, 2004, in suit No.HKN/3/2003 for the purpose of providing opportunity to the Defendants/Applicants/Judgment Debtors, to defend the case.
3. A consequential order of court staying execution or setting aside the execution that was levied against the properties of the defendants/judgment debtors/applicants sequel to the judgment of the court that was delivered on 6th day of April, 2004.
4. An order of court granting leave to Barr. Felix J. Udom or any other lawyer in the firm of Paul Usoro (SAN) & Co. to take over this case from Barr. Samuel Ikpo of Samuel Ikpo & Co. and handle same on behalf of the defendants/judgment debtors/applicants pending the determination of this application/case.
AND for such further order or orders as this honourable court may deem fit to make in the circumstances of this case.
This appeal is against the ruling of the High Court in the application, delivered on the 27/7/2011 dismissing it for lacking in merit. The notice of appeal containing four (4) grounds was filed on the 1/8/2011 and in the Appellants’ brief filed on the 25/1/2012, Mr. Felix J. Udom, Esq., learned counsel for the Appellants has distilled the following issues which he says arise for decision in the appeal:-
i. Whether the Ruling/Decision of the learned trial judge was against the weight of affidavit evidence and the argument of Applicants/Appellants’ counsel.
ii. Whether the learned trial judge erred in law when he refused to set aside the judgment of suit No.HKN/3/2003 which was a nullity and also delivered in violation of the principle of fair hearing.
iii. Whether the High Court of Akwa Ibom State, Ikono Judicial Division had jurisdiction to entertain suit No.HKN/3/2003 which affected a Federal Agency.
The Respondents brief settled by Ekpo Ntekim, Esq., was filed on the 11/5/12 but deemed on the 11/6/12 and the Appellants’ issues (ii) and (iii) were adopted as the issues calling for determination in the appeal. However, the three (3) issues raised in the Appellants’ brief were argued by Mr. Ntekim in the brief.
A careful reading of the grounds contained in the Appellants’ notice of appeal would easily reveal that the particulars of the omnibus grounds (i), ground (ii) and (iii) along with their particulars are entirely on the complaint of lack or want of fair hearing against the judgment of the High Court. The common issue in the three (3) grounds of the appeal is that of the alleged breach or non compliance with the principle of fair hearing in the trial which resulted in the judgment of the High Court the Appellants are seeking to set aside.
For that reason, the real and crucial issues that require determination in the appeal are the issues (ii) and (iii) formulated in the Appellants’ brief. Since the law is now firmly established that this court is at liberty to use and consider issues from the grounds of an appeal which it considers material and crucial in the determination of the appeal, from those formulated by the parties or even ignore some or all issues raised in briefs, I intend to consider issues (ii) and (iii) of the Appellants in the determination of the appeal. Recently, the Supreme Court had restated the law in the case of Chabasava v. Anwasi (2010) 10 NWLR (1201), 163 at 181 per Mukhtar, JSC, (now CJN) that:-
“In facts, the law permits an appellate court, to ignore some or all issues raised in the briefs of argument and formulate its own issues, the way it deems them to be material once they are distilled from the grounds of appeal. See Opara v. D. S. (Nig.) Ltd. (1995) 4 NWLR (Pt.390) page 440; Bankole v. Pelu (1991) 8 NWLR (Pt.211) page 523 and Uko v. Mbaba (2001) 4 NWLR (Pt.704) page 460.”One other point which needs be mentioned here is that the Appellants issue (iii) was distilled from ground four (4) of the notice of appeal which did not arise from the ruling of the High Court appealed against. In fact the issue was not raised before and was not considered by the High Court in the ruling appealed against. Ordinarily, the law is that an issue which is new or fresh can only be properly raised in an appeal with prior leave of the court. The law however makes an exception where the fresh or new issue is one challenging the jurisdiction of a trial or lower court to entertain the action from which an appeal emanated. For an issue which touches or goes to the jurisdiction of a court to entertain a case/appeal, it can be raised as a new or fresh issue in an appeal without the need for prior leave of the court to raise it. See Comfort v. Admo Cases Nig. Ltd. (2000) ALL FWLR (335) 93; Adesanya v. President (2001) FWLR (46) 859, (01) 2 NOLR, 358; FRN v. Ifegwu (2003) 15 NWLR (842) 113; Elugbe v. Omokhafe (2005) ALL FWLR (243) 629, (04) 18 NWLR (905) 319.It is in the premises of the above position of the law that the Appellants issue (iii) which did not arise from the decision/ruling appealed against, but which challenges or questions the jurisdiction of the High Court to entertain the case of the Respondents, would be considered in the appeal. In addition, the Respondents, counsel has not challenged the said issue but has reacted to it by adopting and arguing it in his brief of argument.
The Appellants’ arguments on the issue (ii) are that the Appellants’ right to fair hearing was breached in the trial before the High Court because they were not served hearing notices and that they were denied the right to address the court before the judgment of the High Court was delivered. It was argued for the Appellants that the only method of proof of service of hearing notice was by the affidavit of service by the bailiff filed before the High Court as provided under Order 12, Rule 28 of that Court’s Rules, 1989. According to counsel for the Appellants, it was “unlawful for the Plaintiffs’ counsel to report to the court on 13/12/2004 that hearing notice was served” on the Appellants because there was no record of the affidavit of service filed by the bailiff. Citing the provisions of Section 294 (2) of the 1999 Constitution, he submitted that the High Court was supposed to have adjourned the case for reply address by the Appellants when on 25/2/2004 the Respondents’ counsel concluded/reopened his final address.
Learned counsel relying on Section 36 (1) of the 1999 Constitution and inter alia, the cases of Kotoye v. CBN (1989) 1 NWLR (98) 419; Bamgboye v. Ilorin (1999) 70 LRCN 214 and Okoebor v. Police Council (2003) 12 NWLR (834) 444, submitted further that the failure by the High Court to adjourn the case for address by the Appellants before judgment rendered the judgment a nullity. It was the contention of the learned counsel that the case of Okike v. L.P.D.C cited before the High Court was in support of their application because their case is that the Appellants were not given the opportunity to address the court before the case was adjourned for judgment and they have suffered miscarriage of justice when the judgment was executed. The cases of Mobil v. Monokpo (2004) 115 LRCN 3016 at 3094 on non-compliance with the Rules which affect the foundation or props of the case and PURIFICATION TECHNIQUES (NIG) LTD. v. A.G. LAGOS STATE (2004) ALL FWLR (211) 1479 at 1491 on the effect of non-compliance with the right to fair hearing were referred to and we were urged to allow the appeal on the ground.
On the issue (iii), the submissions by the learned counsel for the Appellants are that because the 1st Appellant is a Federal Government agency, the Akwa Ibom State High Court has no jurisdiction to entertain the case against it by the authority of NEPA v. Edegbenro (2002) 103 LRCN (2280) 2295 which held that the Federal High Court was vested with exclusive jurisdiction over Federal Government and its agencies. We were invited to allow the appeal on this issue.
For the Respondents, it was submitted in respect of the issue (ii) that the principle of fair hearing is for the benefit of all parties in a case and not to be invoked in favour of only one of the parties. The learned counsel for the Respondents said that a court has the duty to give or provide equal opportunity to the parties in a case to present their cases before it but that a party who refused or failed to take advantage or to utilize the opportunity provided by the court cannot turn round to complain that he was denied fair hearing. That a trial court may indulge a party for sometime but not for ever and has the right to withdraw such indulgence at the point the principle of fair hearing is about to be comprised, compounded or prejudicial to the opposite party, citing Newswatch Communication Ltd. v. Attah (2006) 34 WRN 8 at 11. According to counsel, the High Court had provided opportunity to the parties in the case before it but that the Appellants failed to take advantage or utilize it by their sudden absence from the trial without reason despite the service of the hearing notice served on them. Pages 90 – 99 and 100 – 101 of the record of appeal were referred to on the opportunity said to have been given to the Appellants by the High Court and the statement by the Supreme Court at pages 29 – 30 of the Newswatch v. Attah case (supra) on the application of the principle of fair hearing was relied on. In addition, the case of Usani v. Duke (2006) 17 NWLR (1009) 610 on the law that where a party is fully aware that his case is going on and voluntarily stops attending court, he cannot turn round to complain of want of fair hearing, was cited and it was further submitted that the provisions of Section 36(1) of the Constitution did not provide for the court to compel a party to utilize the opportunity provided by the court to present his case.
Learned counsel referred to pages 58 – 70 of the record of appeal said to show that the case had been adjourned for the Reply address by the Appellants after the final address by the Respondents’ counsel and hearing notice was served on the Appellants on the adjournment. He said that the argument that the case was adjourned for judgment without giving the Appellants the opportunity to address the High Court was unfounded and has no basis. The cases of Orugbo v. Una (2002) 16 NWLR (792) 175 at 199 and Magit v. Uniagric, Makurdi (2005) 19 NWLR (959) 211 at 243 – 4 were cited on the meaning and application of the principle of fair hearing on the peculiar facts and circumstances of a case. We were urged to discountenance the Appellants’ submissions on the issue.
After setting out the provisions of Section 251 (1) of the Constitution on the issue (iii), the learned counsel for the Respondents had submitted that the claims by the Respondents before the High Court were for breach of contractual agreement and so fall under the proviso to Section 251 (1) (q), (r) and (s) of the constitution which according to him, automatically oust the jurisdiction of the Federal High Court in respect thereof. He said the import of the proviso is to confer jurisdiction on State High Courts to entertain the Respondents’ case and that what determines jurisdiction under the proviso are the parties and subject matter of a case. In further argument, it was contended that it is not all cases involving the Federal Government or its agencies that come within the exclusive jurisdiction of the Federal High Court and each case would be determined on its own peculiarities, reliance placed on the FMBN v. Lagos State Govt. (2010) 5 NWLR (1188) 570 at 601 and NNPC v. Okwor (1998) 7 NWLR (559) 156. Specially, the Federal High Court was said not to have jurisdiction in matters founded on simple contract, relying on the authority of Onuorah v. K.P.P.C. Ltd. (2005) 6 NWLR (921) 397. We were urged to dismiss the appeal.
The Appellants issue (ii) complaints of the denial of fair hearing for failure to serve hearing notice and to allow counsel to deliver final address before judgment. The law is now trite and so common knowledge that the provisions of Section 36 (1) of the 1999 Constitution guarantee that in the determination of his civil rights/obligations in judicial proceedings before courts or tribunals established by law, a citizen of Nigeria is entitled to a fair hearing within a reasonable time. In practice, the doctrine of fair hearing envisages that judicial proceedings before the courts or tribunal be conducted in accordance with all legal rules formulated to ensure that justice is done to all the parties therein. It requires the observance of what have become popularly known as the twin pillars of the rules of natural justice, .i.e. audi alteram partem and nemo judex in causa sua. By the principle, a court or tribunal is required and owe the legal duty to provide equal and reasonable opportunity to all the parties in the proceedings before it, to present their respective cases freely.
The basic criteria and attributes of the principle of fair hearing have been held to be:
“a) that the court or tribunal shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case,
(b) that the court or tribunal shall give equal treatment, opportunity and consideration to all concerned,
(c) that the proceedings be heard in public and all concerned shall be notified of and have access to such place of public hearing,
(d) that having regard to all the circumstances, in every material decision in the case, justice must only be done but must manifestly and undoubted be seen to have been done. See Fagbule v. Rodrigues (2002) 7 NWLR (765) 188; Usani v. Duke (2004) 7 NWLR (871) 116; Kotoye v. CBN (supra); Eshenake v. Gbinije (2006) 1 NWLR (961); Awoniyi v. Reg. Trustees of Rusicrucian Order, Amorc (2000) 6 SC (Pt.1) 103Put simply, in compliance with the guaranteed right to fair hearing, a court or tribunal shall allow the parties to a case to be heard and should listen to both sides on all material issues in a case before delivering a decision in the case. The right to fair hearing is therefore a question of equal and reasonable opportunity provided or given by the court or tribunal to the parties in a case to present their respective cases in the proceedings. It is fundamental and pivotal in all judicial proceedings and the law is firmly established that failure to adhere to it or, any breach of the right will automatically render the proceedings in which the breach occurred, null, void and of no effect whatsoever. See Adigun v. A-G, Oyo State (1987) 1 NWLR (53) 678; App v. Ogunsola (2002) 5 NWLR (761) 484; BON Ltd. v. Adegoke (2006) 10 NWLR (983) 339; Military Governor of Lagos State v. Adeyiga (2012) 2 MJSC (pt.1) 76 at 131.
The law is also settled that the right to fair hearing cannot be taken away by state or waived and so courts or tribunals have a duty to ensure that hearing notices are not only issued but also served on the parties before embarking on the conduct of judicial proceedings in any case which comes before them. See Chigbu v. Tonimas Ltd. (1999) 3 NWLR (593) 115; Bamgboye v. Unilorin (supra) also reported in (1999) 10 NWLR (622) 290 at 305; NACB v. Obadiah (2004) 4 NWLR (863) 326.
In this appeal, learned counsel as seen earlier, has said that the High Court did not record that the hearing notice ordered to be served on the Appellants in their absence, were served on them at the various adjourned dates the case come up for hearing.
From the record of the appeal, proceedings in the case started or commenced on the 22/7/2002 at which Mr. Alfred Edem, Esq. learned counsel for the plaintiffs informed the High Court that the defendants (Appellants) who were absent, had been served hearing notice in the case. The High Court adjourned the case to the following day, 23/7/2002, and the defendants were absent, but PW1 testified on that day and the case was adjourned to 14/8/2002 for continuation of his evidence with an order that fresh hearing notice be issued to defendants and their counsel. On the 14/8/2002, the 1st defendant (1st Appellant) was represented by its Branch Manager, one Victor Ememie, Mr. I. Ekanem, Esq., appeared for the 1st defendant and the case was adjourned to the 17/10/2002 for continuation on which date the defendants and their counsel were absent. The case was then adjourned to 30/1/2002 for continuation of hearing and once more, the defendants and their counsel were absent on the day and the case was adjourned to 4/11/2002 for continuation of hearing on which date, the High Court did not sit but the case adjourned to the 12/11/02.
On the 12/11/02, PW1 concluded in evidence in the absence of the defendants and their counsel and the case was adjourned to the 4/12/2002 for cross-examination of the witness. The case was further adjourned on that date to the 14/11/2003 on which date, the record shows that the defendants and counsel were absent “despite the fact that the court wrote to him in the matter”, and the plaintiffs closed their case. The case was adjourned to 4/2/2003 for defence and because the defendants were absent and not represented, it was further adjourned to 10/3/2003 for address and on that day, to 20/3/2003 for address. On the 20/3/2003 the case were adjourned “for the last time to 30/4/2003 for address but was on the said date, again adjourned to 27/5/2003 for address”.
The address by the learned counsel for the plaintiffs, Mr. Alfred Idem, Esq., started on the 27/5/2003, adjourned to 3/6/2003, 9/7/2003 and 6/8/2003 when it was eventually concluded by Ekpenyong Ntekim all in the absence of the defendants and counsel. The case was adjourned to the 20/10/2003 for reply and fresh hearing notice was ordered to be served on the defendants and their counsel. On the 20/10/2003, the High Court did not sit and so the case was adjourned to the 25/11/03 and later to 13/1/2004 for reply on which date Mr. E. Ntekim informed the High Court that the defendants were served with a fresh hearing notice, but the case was adjourned to the 3/2/2004 for address with another order for issuance of fresh hearing notice on defendants and their counsel.
Because parties were absent, the case was once again adjourned to the 25/2/2004 for address on which date Mr. Alfred Edem, Esq., for the plaintiffs, again addressed the High Court and the case was adjourned to 22/3/2004 for judgment. Eventually, judgment was delivered on the 6/4/2004 in the absence of the defendants and their counsel. I went this far in order to present the full and accurate picture of the proceedings by the High Court from commencement of hearing to the delivery of judgment in the case between the parties to this appeal.
As can easily be noticed, the only time the Appellants were represented in the entire proceedings was on the 14/6/02 when the Branch Manager and I. Ekanem, Esq., appeared for the 1st Appellant and the case was adjourned to the 17/10/2003 for continuation of hearing. It may be remembered that the learned counsel for the Appellants had argued that no hearing notice was served on them and there was no record of such service before the High Court of the dates of adjournments in the proceedings.
Now, the issuance and service of hearing notice on a party in a case only arises where or when such a party was not aware of a date fixed by the court for the hearing of his case. Where a party was present in court and/or represented by counsel when his case was either fixed or adjourned by the court in open court, for hearing or continuation of such hearing, the need to thereafter issue such a party with the hearing notice of the date set down by the court in his presence or presence of his counsel, would not arise and indeed becomes unnecessary in law. The essence of a hearing notice is to put on notice or notify or inform a party or his counsel who are not aware of a date set down by the court in their absence for the hearing of his case. Once a case was adjourned in the presence of a party or his counsel in open court, the law and indeed the principle of fair hearing which applies to all parties, does not require that such a party shall be issued and served with a hearing notice of that date of hearing of which he is fully aware. See Janason Triangles v. C. M. & P. (2002) 15 NWLR (789) 176 at, 192; Onadeko v. UBN (2005) ALL FWLR (250) 57. Consequently, when on 14/6/2002 the hearing of the case was adjourned to 17/10/2002 for continuation of hearing in the presence of a Representative of and counsel for the 1st Appellant, there was no duty on the High Court to issue and serve hearing notice of the adjourned date on the Appellants afterwards. The High Court was right to have continued the hearing of the case on the adjourned date of 17/10/2002 in the absence of the Appellants and their counsel who were fully aware of the continuation of hearing of the case on that day. Being aware of the continuation of hearing of the case on the 17/10/2002 and absenting themselves without any excuse communicated to the High Court as far as the record of appeal shows for the absence, the Appellants and/or their counsel in whose presence the case was so adjourned, had the duty to check from the High Court the position of the case after that day if in fact they were sincerely interested in participating in the proceedings. In the case of Owena Bank v. Muhammed (1998) 1 NWLR (533) 301 at 308, it was held that:-
“A person, who has been appearing in a case or matter before a court of law and who absents himself on a particular date set for hearing has a duty to check the progress of the matter in his absence without any formal notification of an adjourned date.”
Thus, the duty was on the Appellants and/or counsel to check the progress of the case after the 17/10/2003 when they absented themselves without excuse. If the case had been continued and concluded on the next date of adjournment after the 17/10/2003 in the absence of the Appellants/counsel without any communication to the High Court on the absence, the Appellants would not have had any one to blame but themselves for the consequence of their absence in the proceedings because the law and principle of fair hearing itself would not have allowed them to have held the High Court to ransom. However, as clearly shown by the record above, on the 30/10/2003, the date the case was adjourned to from the 12/10/2003 and on which date the appellants were not represented at the hearing, it was further adjourned to the 4/11/2002 for continuation and there was no record of an order for hearing notice to issue and be served on the Appellants/counsel. From the 4/11/2003, the case was further adjourned to 12/11/2003 when PW1, the only witness in the case concluded his evidence for the Respondents, once again in the absence of Appellants/counsel or record of the service of hearing notice on them for the date. So from the 17/10/2003 which the Appellant/counsel were aware of and absent on, to the 12/11/2012, when the only witness continued and concluded his testimony in the case, there were three (3) dates of adjournment for continuation of hearing in their absence and there is no record by the High Court that they were served hearing notice of the dates. In these circumstances would the Appellants be said to have been accorded a fair hearing in the proceedings of the said dates by the High Court. It has been long settled that the test whether a party in a case was given a fair hearing is the impression of a reasonable person who was present at the trial or who was aware of the proceedings in the case. If from his observation, he would have no difficulty concluding that justice was done to the parties in the case, then principle of fair hearing would have been observed and its objective achieved. See Mohammed v. Kano N. A. (1968) 1 ALL NLR, 43; Akeredolu v. Akinremi (1986) 2 NWLR (25) 710; F.C.S.C. v. Laoye (1989) 2 NWLR (106); Salu v. Egibon (1994) 6 NWLR (348) 34; Ndukauba v. Kolomo (2005) SC (pt.1) 80. I have observed that on the 12/11/2002, the case was adjourned to 4/12/2002 for cross-examination of PW1 and the High Court ordered that:-
“The Assistant Chief Registrar shall write to the 1st defendant and his counsel informing them separately of the pendency of the matter in court.”
However, the High Court did not sit on 4/12/2002 and the case was adjourned by the Asst. Chief Registrar, in the absence of the Appellants and counsel, to the 14/1/2003 without any indication that the order made on the 12/11/2002 by the High Court was carried out by him. That was how later proceedings in the case as summarized earlier were conducted in the absence of the Appellants/counsel and without record that the High Court orders for the issuance and service of Hearing Notice when made, were effected until the 25/2/2004 when the learned counsel for the Respondents re-opened and again concluded his final address in the case and it was adjourned to 22/3/2004 for judgment. The is no record that the Appellants/counsel were afforded an opportunity and duly notified of it, to address the court after the conclusion of the final address by the counsel for the Respondents in the case, before judgment was delivered by the High Court.
Undoubtedly, a reasonable person who was present during the proceedings that culminated in the judgment delivered by the High Court in the case between the parties to this appeal would be wondering if the principal of fair hearing was applicable in the case and if indeed justice was done to the parties therein. It should be noted here that the principal of fair hearing would require that record of every step in the opportunity given to the parties in the proceedings of a case be reflected to be able to objectively speak for itself without difficult. Without the record that equal reasonable opportunity was afforded parties by a court to resent their cases, the principle of fair hearing cannot be said to have been observed in the proceedings of the court. Although the High Court in its ruling had stated that:-
“The record of proceedings shows that since the 12th day of October, 2000 the defendants and/or their counsel have not been appearing in court. No reason was advanced for their absence. So many hearing notices and letters of reminders have been served on the defendants and their counsel but they would not still come to court. It is not known why they decided to abandon the case …” (underline supplied). See page 12 of the record of the appeal.
With due respect to that court, so many hearing notices and reminders may have been ordered to be serve on the Appellants/Counsel, but record of the appeal as summarized before now, shows that there were more days on which proceedings were conducted in the case in their absence without record that they were in fact and deed served with such hearing notices and reminders. Indeed, except for the 17/10/2003 of which they were aware of because the adjournment was made in their presence, there was no record to show that they were served hearing notice for the days the only witness in the Respondents’ case, testified and concluded his evidence during which numerous documentary exhibits were admitted in evidence, In fact as demonstrated by the record of the appeal, the Appellants were not duly served, because there is no record to that effect, for the dates on which they were to have cross-examined the said witness. As rightly submitted by the learned counsel for the Appellants under the provisions of Order 12, Rule 28 of the High Court Rules, 1989, in all cases where service of any writ or document has been effected by a bailiff or other officer of court, an affidavit sworn to by such bailiff or other officer shall on production, without proof of signature, be prima facie evidence of service. Any order for service of hearing notice by a court is to be carried out by a bailiff, process server or other officer of the court as may directed in the order and when such service was effected or not effected or carried, a report is to be made directly as may be required by the Rules of court either by the filing of an affidavit of service before the next date of adjournment or by the officer who effected service to report to court on the adjourned date or to the Court Clerk who would in turn report to the court on the said date. In any of such situations, there must be the record of and by the court that the service was made or effected before the party affected can properly be taken in law to have been duly served or notified of the processes or/and proceedings in respect of which the hearing notice was directed to be served. There is no such record in the record of the appeal before us because even where hearing notice were said to have been served on the Appellants, it was the Respondents’ counsel who would be recorded to have said that they were served and not any officer of the High Court.
As I have said earlier, although a party was required to be diligent in presenting or defending a case before a court and supposed to find out the progress of the case when adjourned in his absence, when the adjournments were incessant and the case not heard at various dates of such adjournments in the absence of a party, prudence should have warranted that such a party be duly served with hearing notice of next dates of adjournments if a level playing field and equal opportunity were to be afforded such a party in the proceedings of the case. In the case of Omabuwa v. Owhofatsho (2006) ALL FWLB (323) 1655 at 1677, it was held that:-
“a party to a case is entitled to be notified of every date the suit is set down for, and in the absence of notice, the proceedings become a nullity and must be set aside. Faladu v. Kwoi (2002) FWLR (pt.113) 365, (2003) 9 NWLR (pt.826) 643.”
Moreso, to adjourn a case for judgment after taking a final address from one of the parties in the absence of another without record of the service of hearing notice on that other party and delivery of judgment without the service of the hearing notice, would undoubtedly stand the principle of fair hearing on its head. In the case of Ihom v. Gaji (1997) 6 NWLR (509) 526 at 527 – 8, the Supreme Court had held that:-
“By virtue of Section 258 (1) of the 1979 constitution, now Section 294 (1) of the 1999 constitution, right of address by counsel is given before judgment. When this is not given, any decision arrived at amounts to breach of fair hearing rendering the proceedings null and void.” See also Onajobi v. Olanipekun (1985) 1 SC, 56; Obodo v. Olomu (1987) 3 NWLR (59) 111; Famuroti v. Agbeke (1991) 3 NWLR (189) 1.
A court should not adopt a method of adjudication alien to the procedural rules of justice for as the last resort in the quest for justice by the parties that come before it, the court should do justice by the procedural law and within the provinces of constitutional provisions enacted to ensure even justice. The moment a court fails to do justice in accordance with the law and the procedure provided for it to attain a fair determination of the disputes between the parties to a case, there would not only be non-compliance with but also a breach of the constitutionally guaranteed right to fair hearing in the conduct of its proceedings. As seen in the authorities cited above, the consequence of an established breach of the right in respect of any party to such proceedings would render them null, void and of no legal effect, howsoever, otherwise well conducted. The record of the appeal shows at pages 75 – 6 that on the 25/2/2004 when the case was called before the High Court there was no record that the appellants/counsel, who were absent, were served with hearing notice of that day’s proceedings. That the counsel for the respondents, Mr. Alfred Edem, leading Henry Ekanem, Esq. addressed the court on remedies available to the Respondents in the case and of the end of the address, the High Court stated that:
“Court: The case is adjourned to 22/3/2004 for judgment”.
It can easily be observed that although the Appellants/counsel were absent when the address, which was final by the counsel for the Respondents in the case, was received by the High Court, the case was simply adjourned for judgment without even an order for hearing notice to be served on them.
As may be recalled, the judgment to have been delivered on the 22/3/04 to which date the case was adjourned after the Respondents’ final address on 25/2/2004 was eventually delivered on the 6/4/2004, in the absence of the Appellants/counsel and record that they were in fact served with hearing notice. There is no record of why the judgment was not delivered on the date it was adjourned to by the High Court or how it was further adjourned to the date it was eventually delivered and whether any of the parties, but particularly the Appellants/counsel were served with hearing notice or somehow aware of the eventual judgment day. Will the chronicle of these events or proceedings by the High Court in the case before it be said to be in line with principle of fair hearing, especially as it relates to or affects the Appellants? Would a reasonable man who was present and watched the proceedings not have difficulty in thinking that justice was fairly done in the case to all the parties? Similarly, one of the twin pillar of the principle of natural justice from which fair hearing was derived, i.e. audi alteram partem, hear the other side, was violated in proceedings of the High Court leading to the judgment appealed against as far as the Appellants are concerned. A trial or hearing in a case cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard in the proceedings because the right to fair hearing is a question of opportunity of being heard. The right lies in the procedure adopted by a court in the conduct of the proceedings in a case and not in the correctness of the decision arrived at the end of a case. See Okafor v. Attorney General, Anambra State (1991) 6 NWLR (200) 659; Moh’d v. Olawunmi (1990) 2 NWLR (133) 458; Araka v. Esengwu (2001) 5 WRN, 1; FBN Plc v. TSA Ind. Ltd. (2010) 15 NWLR (1216) 247.Order 37, Rules 7 and 8 of the High Court Rules, 1987 which are to the effect that when s trial is called and a plaintiff appears but a defendant does not appear, the plaintiff may prove his claim as the burden, may lie on him, relied on by the learned counsel for the Respondent to claim entitlement to judgment after his final address, would only apply if there was a record in the case that the defendant was duly served with requisite hearing notice of the date the case was called for hearing or trial. A defendant not being a talisman or magician, would not appear for the trial of a case on the day it was called for in a court if he was not served with a hearing notice of the date or was shown to be somehow aware of the date. The provisions of the Rules are therefore only applicable when or if a defendant was, notified of the date the trial of the case against him by the service of hearing notice or otherwise notified, of the date. Such notification is accordingly a condition precedent to the applicability of the provisions of the Rules which in any event, are subservient, and subject to the constitutional provisions on the right of a party to a fair hearing in the determination of his civil rights and/or obligations before a court of law. In the circumstances of the proceedings before the High Court as reflected in the record of the appeal, the provisions of Order 31, Rules 7 and 8 do not avail the Respondents. Learned counsel for the Respondents had also argued that there were proofs of service of the hearing notices ordered to be served on the Appellants/counsel by the High Court during the proceedings. However the record of the appeal does not bear such a contention out and like I have shown earlier, the record of the proceedings conducted by the High Court in the absence of the Appellants/counsel do not show that the hearing notices ordered at various times to be served, were in fact served before it proceeded with the hearing in their absence. Copies of the hearing notices at pages 90 – 100 of the record of the appeal first were said to have served for dates before the testimony of the only witness in the case, I after the evidence of the witness. However, there were several other dates as demonstrated in the record of the appeal when the case was adjourned for hearing in the absence of the Appellants counsel and for which there are no record of hearing notices served on them. Some of the adjournments, as shown earlier, were made by the Registrar of the High Court because that court did not sit.
The principle of fair hearing, as rightly stated by the learned counsel for the Respondents, like all other principles of law, is not a cut and dry principle to be applied in the abstract for the convenience of parties to a case. Rather like all other principles, is largely dependent on the peculiar facts and circumstances in which it arises for determination of whether it was complied with or not in the conduct of proceedings by a court as regards any of the parties thereto. While principles of law are largely constant and regular like the sun arising from the east, facts and circumstances vary from one case to the other and they are the arrow heads of the case on which the applicability of the principles of law depends. That is why the application of the principles of law is not mathematics where one plus one (1+1) is 2 (two) today and forever. In law, one plus one (1+1) could be one (1) in the first case or two (2) or even three (3) in a second case depending on the peculiar facts and circumstances of each case. That is the con in which the Supreme Court made the statement in the case of Magit v. Uniagric, Makurdi (Supra) when it said:-
“Fair hearing is not a cut and dried principle which the parties can, in the abstract, always apply at their comfort and convenience. It is a principle which is based on the facts of the case before the court. Only the facts of the case can influence and determine the application or the applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of a case.”
The peculiar facts and circumstances of the case before the High Court which include absence of record of service of hearing notices on the Appellants/counsel for the dates on which the case was adjourned in their absence and absence of a record of the opportunity given to the Appellants/counsel to address the High Court after the final address by the Respondents’ counsel before judgment, in my view, show that the principle of the right to fair hearing was breached in respect of the Appellants. The appellants/counsel may have been tardy or nonchalant in respect of the case against them but that does not mitigate, the requirement of the principle that they be notified of all the dates on which proceedings were to be and were conducted in the case and given the opportunity to exercise their right to address the High Court after the Respondent’s final address before judgment in the case was delivered. In the case of Adigun v. Attorney General, Oyo State (1987) 18 NSCC 1 at 36, the Supreme Court had held that:-
“If the principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at, but in the absence of the departure from the essential principle of justice such decision must be declared to no decision.”
For the above reasons, I resolve the issue in favour of the Appellants.
The issue (iii) is whether the High Court of Akwa Ibom State has jurisdiction to entertain the suit which affected a Federal Government agency, like the 1st Appellant. Learned counsel for the Appellants had relied on the Supreme Court decision in the case of NEPA v. Adegbenro to say that the State High Court has no jurisdiction in a case where one of the parties is a Federal Government agency.
For the Respondents it was argued that it was not automatic that every case involving a Federal Government agency would rob a State High Court of jurisdiction to entertain it. Also that jurisdiction does not only depend on the parties, but also the subject of the case and a State High Court has jurisdiction where the subject is a simple contract between the parties.
Let me start a consideration of the issue by saying that it would appear that tome learned counsel have not been abreast of or been current with the development of principles of law set out in the judicial interpretations of the provisions of Section 25 (1) (a) – (s) and the proviso thereto in the 1999 Constitution by the Supreme Court, since the case of NEPA v. Adegbenro also reported in (2002) 12 SC (pt.II) 119. I would not want to believe that counsel would choose to ignore the extant position of the law and cite an authority merely because it favours their case with the intent thereby to beguile the court in the correct determination of an issue in dispute. It is a primary duty of counsel to assist the court to determine issues on extant position of the law whether or not they are in their favour.
There is no doubt the decision in NEPA v. Adegbenro, decided under Section 230 (1) (q) (r) & (5) of the 1979 Constitution (which are the same with section 251 (1) (q) (r) and (s) of the 1999 Constitution), by the lead judgment, had held that the Federal High Court had exclusive jurisdiction in matters in which the Federal Government or any of its agencies was a party notwithstanding the nature of the claim.
However, Tobi, JSC, in the same case had stated, in his usual erudition, that:-
“In construing section 230 (1) of the 1999 Constitution as amended (now section 251 (1) of the 1999 Constitution) two important matter arise. They are the parties in the litigation as well as the subject matter of the litigation. The court must consider both.”
Therefore taking the decision as a whole, a difficulty would clearly arise in the understanding of whether in the determination of the exclusive jurisdiction vested under the provisions on the FHC, the parties alone or along with the subject matter of the action is/are material and to be considered by a court. I know the lead judgment was the decision of the apex court in the case but the concurring statement by Tobi, JSC was part of that decision being a pronouncement from that court in the case. The statement by Tobi, JSC, can be said to find support from the much earlier decision by the apex court in the locus classicus case on when a court would have jurisdiction in a matter, i.e. the case of Modukolu v. Nkemdilim (2002) 1 ALL NLR, 587, (6 – 7) 2 NSCC, 375 where it was held that a court is only competent to entertain a case or matter when inter alia, the subject matter of the action is within its jurisdiction. Thus jurisdiction of court generally involves both parties and subject matter of the action, in addition to other requirements of the law.
Specifically, the apex court had in the case of Onuorah v. K.R.C. Ltd. (2005) 6 NWLR (921) 393 at 405, decided after NEPA v. Adegbenro, held that:-
“Section 230 (1) (q) (r) and (s) of Decree No.107 of 1993 which extended the jurisdiction of the Federal High Court also sets out a proviso after subsection (s). It is that: “nothing in the provisions of paragraphs (q) (r) and (s) of this subsection shall prevent a person from seeking redress against the Federal Government or any of its agencies in an action for damages, injunctions or specific performance where the action is based on any enactment, law or equity. A close examination of the additional jurisdiction conferred on the Federal High Court in the Section and by the 1979 Constitution clearly shows that the court was not conferred with jurisdiction to entertain claims founded or contract at in the instant case. In other words, section 230(1) provides a limitation to the general and all embracing jurisdiction of the State High Court because the items listed under the said Section 230(1) can only be determined exclusively by the Federal High Court. All other items not included in the list would therefore still be within the jurisdiction of the State High Court. In the instant case, since disputes founded on contracts are not among those included in the additional jurisdiction conferred on the Federal High Court, that court therefore had no jurisdiction to entertain the appellant’s claim. The lower court therefore acted rightly in its decision that the Federal High Court lacked jurisdiction to entertain the claim.”By the above decision, the apex court apparently has qualified or altered the lead decision in NEPA v. Adegbenro to the extent that the Federal High Court does not enjoy exclusive jurisdiction in matters founded on simple contracts even if against the Federal Government or any of its agencies. It also clearly laid the position that in the consideration of the exclusive jurisdiction vested in the Federal High Court by the provisions of section 251 (1) (q), (r) and (s), the parties alone is not the only material or relevant consideration, but the nature or subject matter of the action as well, Similarly, the case of Jack v. University of Agriculture, Makurdi (2004) 1 SC (Pt.II) 100 at 111, the apex court had considered the nature of the claim in the case and held that the High Court of a State would have jurisdiction notwithstanding that the defendant is a Federal Government agency. See also Adelekan v. Ecu-line NV (2006) 12 NWLR (993) 33; NNPC v. Okwor (supra), FMBN v. Lagos State Govt. (2010) 5 NWLR (1188) 570 at 601; NNPC v. SLB Consortium (2008) 16 NWLR (1113) 297; NOSPECTOR OIL & GAS LTD. v. Olorunimbe (2012) 10 NWLR (1307) 115 at 157 – 9.
The law is now settled therefore that it is not in all cares where a party is the Federal Government or any of its agencies that automatically must be bought or initiated in the Federal High Court under the provisions of Section 251 (i) (p), (r) and (s) of the constitution and that the nature of the claim or subject matter of the action is a material factor in the determination of the jurisdiction.
In this appeal, there is no dispute on the part of the Respondents, counsel that the 1st Appellant is an agency of the Federal Government for the purpose of deciding the issue. Because the point was not canvassed in the Respondents’ brief of argument, I would proceed on the basis that it was conceded by the Respondents in the appeal. The case put forward by the Respondents on the issue, it may be recalled, is that their case against the Appellants was for breach of a contract entered by them with the 1st Appellant for which they incurred losses and therefore claimed damages. I have perused the record of the appeal but did not see the statement of claim filed by the Respondents or even the writ of summons on which the claims were endorsed. The index of the record of the appeal does not indicate that the writ of summons and statement of claim filed by the Respondents were included in the record of appeal. However, the claim said to have been made against the Appellants before the High court by the Respondents, were set out at page 14 of the Respondents, brief of argument and have not been challenged by the Appellants’ counsel.
The claims are thus:-
“a) The sum of N15,842,002.00 being special damages against the 1st defendant for breach of contract and loss of profit.
b) The sum of N1,000,000.00 for general damages.
d) A declaration that the 1st plaintiff has fulfilled all obligations on its part required for the successful and full execution for the loan contract.
d) A declaration that the 1st plaintiff has not breached the loan contract to warrant its guarantors, the 2nd and 3rd plaintiffs being called upon to forfeit properties, the subject of the guarantee and legal mortgage.
A declaration that the 1st plaintiff’s default contingent upon which the 2nd and 3rd plaintiffs would be liable to the 1st defendant, has not occurred.
f) An injunction restraining the 2nd defendant from disposing of the 2nd and 3rd plaintiffs properties at No.6 Abiakpo Street, Ikot Ekpene and plot 78, Commercial Layout, Ikot Ekpene respectively by public auction or private sale of whatever form.
g) An order on the 1st defendant to return to the 2nd and 3rd plaintiffs all the documents of title now retained by them in spite of breaches committed by them.”
Plainly, the substance of the above claims are founded on the breach of the loan agreement entered into by the parties and in consequence of which the Respondents claimed damages against the 1st Appellant. Apparently therefore, the nature of claims in the case is in contract or founded on simple contract and breach thereof. In the premises of the settled principle of the law as demonstrated above, the mere fact that the 1st Appellant is a Federal Government agency does not divest the Akwa Ibom State High Court of jurisdiction to entertain the case. The Federal High Court does not have exclusive jurisdiction over the case and the Akwa Ibom State High Court has the requisite jurisdiction to entertain it. The issue is consequently resolved against the Appellants and in favour of the Respondents.
In the final result, because I have resolved that the Appellants, right to fair hearing was breached in the conduct of the trial of the case by the High court of Akwa Ibom State there is no viable alternative in law but to allow the appeal and declare the judgment delivered in breach of the principle of fair hearing, a nullity.
I do and the judgment is accordingly set aside.
Parties are to bear their respective costs of prosecuting the appeal.
UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Lawal Garba, J.C.A. I am in total agreement that in any court proceeding, the twin pillars of Natural justice audi alteram partem and nemo judex in causa sua must be observed.
The question to be asked in all proceedings is whether
“There was fair hearing within the meaning of S. 36(1) of 1999 Constitution”.
Fair hearing means that the trial was conducted according to all the legal rules formulated to ensure that justice is done to the parties. It requires the observance of the twin pillars of the rules of natural justice. Eshenake v. Gbinije (2006) 1 NWLR pt.961 Page 228
It is trite law that once there is a breach of fair hearing the whole proceedings in the course of which the breach occurred and the decision arrived of by the court becomes a nullity. ANPP v. INEC (2004) 7 NWLR pt.871 page 16, All Peoples Party v. Ogunsola (2002) 5 NWLR pt.761 page 484, B.O.N Ltd v. Adegoke (2006) 10 NWLR pt.983 page 339.
The court hove laid down the true test of fair hearing as; the impression of a reasonable person who was present of the trial whether, from his observation, justice has been done in the case. Such a bystander would be guided by the twin pillars. First, whether the two sides to the case were heard so as to fulfill the principle of audi alteram partem Isiyaku Muhammed v. Kano N. A. SC 417/1967 (unreported) decided on 31st December, 1968, Ezechukwu v. Onwoka (2006) 2 NWLR pt.963 Page 151 .
Our courts hove held in a plethora of cases that trial courts are enjoined to ensure that hearing notices are issued on parties before embarking on the trial of any matter before them.
N.A.C.B. Ltd. v. Obadiah (2004) 4 NWLR pt.863 page 326, Chigbu v. Tonimas (Nig) Ltd. 1999 3 NWLR pt.593 page 115, Banigboye v. UNILORIN (1999) 10 NWLR pt.622 Page 290, Anonyi v. The Registered Trustees of the Rosicrucian Order, AMORC (Nig) (2000) 6 SC pt.1 page 103, Araka v. Ejeagwu (2001) 5 WRN page 1.
The burden is on the party alleging the breach of fair hearing in a case to prove the breach, and he must do so in the fight of the facts of the case. This is because the facts of a case and the facts only determine acts which constitute non-compliance with the principle of fair hearing. Maikyo v. Itodo (2007) 7 NWLR pt.1034 Page 443.In the instant case, the appellants showed the numerous adjourned dates by the court without an order that a hearing notice be issued on the Appellants. Where a Hearing Notice is ordered, the court ought to enquire whether indeed, the Hearing Notice was served. Ordering a Hearing Notice is not enough. The court must ensure that, the Hearing Notice was indeed served. The case in the trial court was adjourned several times but there was no evidence to show that Hearing Notice was ever served on the Appellants informing them of the next adjourned dote. This failure showed that the court did not give the Appellants a fair hearing. The pillar of audi alteram partem was not observed.
The trial in which this breach was occasioned is therefore a nullity. However a litigant who has a matter in court is enjoined to be diligent as well. It is his case that is in court. Even though a party has paid his counsel. He should show a level of interest in his case in court.
For this and the fuller reasons in the lead judgment I too will allow this appeal. The trial in the lower court not observed one of the twin pillars of Natural justice i.e. audi alteram partem. I also abide by all the orders contained in the lead judgment including that as to costs.
ONYEKACHI A. OTISI, J.C.A.: I have had the opportunity of reading in draft the Judgment just delivered by my learned brother, Mohammed Lawal Garba, J.C.A. I am in complete agreement with both the reasoning and conclusion. The issues raised for determination have been exhaustively resolved, and I have nothing further to add. I abide with the Order setting aside the judgment of the lower Court.
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Appearances
Mr. Felix J. Udom, Esq.For Appellant
AND
Ekpo Ntekim, Esq.For Respondent
