NNOKWA MICRO FINANCE BANK NIGERIA LIMITED v. AACB MICRO FINANCE BANK NIGERIA LIMITED
(2014)LCN/6956(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of March, 2014
CA/E/230/2006
RATIO
NATURAL JUSTICE: IMPLICATIONS OF A BREACH OF PRINCIPLES OF FAIR HEARING
It is settled principle of law that where, in any proceedings, the rules of natural justice or the principles of fair hearing are breached, such a breach renders the entire proceedings null and void and the appropriate consequential order is one of retrial before another judge of the court. See Rasaki Asahi v. Madam Towuro Egeibon (1994) 6 NWLR (Pt 348) 23 at 44 and Adigun v. A.G. of Oyo State (No.2) & Ors (1987) 2 NWLR (Pt 56) 197. PER ADZIRA GANA MSHELIA, J.C.A.
FAIR HEARING: IMPLICATIONS OF FAILURE TO SERVICE OF HEARING NOTICE
The purport of opportunity to be heard arises when hearing notice is served on a party or the party is not served to be in court.
It is the proceedings in the case that determines the question of fair hearing. Furthermore, it is trite law that failure to effect service of process where it is required renders the subsequent proceedings and judgment a nullity. See Tsokwa Motors (Nig) Ltd v. UBA Plc. (2008) 2 NWLR (Pt. 1071) SC 347 and Wappah v. Mourah (2006) 18 NWLR (pt 1010) 18. Therefore lack of service of processes including hearing notice does not only affect the form but goes to the root of the matter. In Okorafor Mbadinuju v. Chukwunyere Ezuka (1996) 8 NWLR (Pt 364) the Supreme Court held that failure to notify the parties of the date for hearing of the matter renders the proceedings null and void as the court lacks jurisdiction to entertain the matter. See Sken Consult (Nig) Ltd v. Ukey (1981) 1 SC 6. It is therefore, the service of hearing notice that confers jurisdiction on the trial court to entertain an application or to hear the substantive matter. PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
NNOKWA MICRO FINANCE BANK NIG. LIMITED Appellant(s)
AND
AACB MICRO FINANCE BANK NIG. LIMITED Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): In this appeal, the respondent was the plaintiff in a suit which it instituted against the appellant as defendant in the High Court of Anambra State, holden at Awka. The plaintiff’s claim as per the writ of summons against the defendant is as follows:
(a) The sum of N200, 000.00 (Two hundred thousand naira) being the said facility granted.
(b) 3% interest per month on the said sum of N200,000 from June, 2000 till judgment is delivered.
(c) 5% judicial interest from the date of Judgment till judgment debt is liquidated.
The suit was commenced under the undefended list procedure but on notice of defence given by the defendant, it was transferred to the general cause list and pleadings ordered. Pleadings were duly exchanged and suit was set down for trial on the 21/7/2003 and 23/7/2003 respectively. However, full trial commenced on 23/9/2003 in the absence of the appellant, and PW1 the bank manager testified on behalf of the plaintiff. Learned counsel for the respondent addressed the court after PW1’s evidence. The trial court fixed the matter for judgment. After evaluating the evidence adduced and the submission of plaintiff/respondent’s counsel, the learned trial judge C.J. Okoli, Chief Judge entered judgment on 30/9/2003 in favour of the plaintiff wherein he stated as follows:-
“Judgment is hereby entered for the plaintiff against the defendant for the sum of N200, 000.00 together with interests on the said amount at the rate of 3% per month compound interest from June 2000 to this day. Thereafter, there shall be interest on the judgment debt at the rate of 5% per annum until payment.”
Dissatisfied with the decision, defendant lodged an appeal to this court vide its Notice and Grounds of Appeal dated 8.04.2003 and filed on 8-10-2004 pursuant to order of this court made on 4-10-2004. The Notice of Appeal contained three grounds of appeal as follows:-
GROUND 1: ERROR IN LAW
The court erred in law and breached the defendant’s right to fair hearing when the court proceeded to hear the suit on the 23rd day of September 2003 and delivered judgment thereon on the 30th day of September 2003 without the defendant being notified of the hearing and this denied the defendant opportunity of being heard.
PARTICULARS OF ERROR
(a) The suit was on the 23rd June 2003 initially adjourned to 21st and 23rd July, 2003 for hearing.
(b) The learned trial judge did not sit on the 21st July 2003 and the defendant and his counsel were unable to attend court on 23rd July 2003.
(c) Trial or hearing did not commence on the said 23rd of July 2003 as previously adjourned by the learned trial judge.
(d) Neither the defendant nor her counsel was served any notice notifying them that hearing has been re-fixed for 23rd of September, 2003 or any other date.
(e) Even after the proceedings of 23rd of September 2003 no opportunity was given to the defendant to defend the suit before judgment was fixed for 30th September 2003.
(f) The hearing conducted on 23rd of September 2003 and judgment delivered on 30th September 2003 without notice to the defendants breached the defendant’s right to fair hearing and occasioned a miscarriage of justice.
GROUND 2:
The learned trial judge acted without jurisdiction and breach the defendant’s right to fair hearing in granting the plaintiffs motion for extension of time to file reply when the said motion was never served on the defendant who had no notice of it.
PARTICULARS:
(a) Pleadings closed on the 23rd June 2003 and the suit was thereafter adjourned for hearing.
(b) On the 23rd day of July, the learned trial judge granted a motion giving the plaintiff an extension of time to file a reply to the statement of defence.
(c) The said motion was not served on the defendant or her counsel.
(d) That the hearing granting of the said motion without the same being served on the defendant breached the defendant’s right to fair hearing and occasioned a miscarriage of justice.
GROUND 3: ERROR OF LAW
The learned trial judge erred in law in relying on the reply to the statement of defence filed by the plaintiff as part of the pleading of the plaintiff upon which the trial court considered the case and delivered its Judgment when the said reply was never served on the defendant.
PARTICULARS
(a) On the 23rd day of July, 2003 and in the absence of the defendant, the learned trial judge granted the plaintiff’s motion seeking an extension of time within which to file reply to the defendant’s statement of defence.
(b) The defendant later filed and relied on the said reply in proof of this case.
(c) The said reply was never served on the defendant and/or her counsel.
(d) The reliance by the trial court on the said reply to the statement of defence occasioned a miscarriage of justice on the defendant.
In compliance with rules of court, parties exchanged briefs of argument. Appellant’s amended Brief of Argument settled by Barr. F.C. Nwankwo was dated 25.05.2011 and filed on 01.06.2011. The Respondent’s Amended Brief of Argument settled by P.E. Okoye Esq., was dated 18-05-2011 and filed on 20-05-11. Appellant’s amended reply brief was dated 25-05-2011 and filed on 01-06-2011. When the appeal came up for hearing, counsel adopted their respective briefs of argument. Appellant’s counsel urged the court to allow the appeal and set aside the judgment of the lower court. While respondent’s counsel after adopting the brief urged the court to dismiss the appeal. Appellant formulated two issues for determination as follows:-
ISSUE No 1: Whether or not the appellant’s right to fair hearing was breached by the trial judge, when in the absence of the defendant and his counsel:
(i) The case was re-fixed for hearing in the absence of the defendant and his counsel and heard without hearing notice to the appellant or his counsel.
(ii) He granted the plaintiffs/respondent’s motion on notice for extension of time to file reply to the statement of defence when the said motion (and the reply therein attached) was not served on the defendant/appellant or his counsel who had no notice of it. Grounds 1 and 2.
ISSUE NO. 2
Whether the trial judge acted properly in law when he relied on the reply to the statement of defence when the trial court considered the case and delivered its judgment when the said reply was never served on the defendant or his counsel.
The respondent formulated a sole issue considered as germane for determination as follows:-
“Whether the appellant’s right to fair hearing was breached by the trial court.”
Respondent’s sole issue is not dissimilar to appellant’s first issue as such I will adopt appellant’s two issues in determining this appeal.
While arguing issue one, learned counsel for the appellant submitted that the suit was on the 23rd June 2003 set down for hearing to the 21st and 23rd July 2003 for hearing. That the court did not sit on the 21st day of July 2003 due to strike embarked upon by Anambra State Judiciary workers and the defendant and her counsel were unable to attend court on the 23rd day of July, 2003. Counsel stated that the record clearly showed that the trial or hearing did not commence on the said 23rd July 2003 as previously adjourned by the learned trial judge. According to learned counsel, it is equally clear from the record that neither the defendant nor her counsel was in court on the said 25th July 2003 when the court made an order re-fixing the hearing date to 23rd and 25th September 2003. That no hearing notice was served on the defendant or her counsel notifying them that hearing has been re-fixed to 23rd and 25th of September 2003 or any other date. That even after the trial or proceeding of 23rd September 2003, no opportunity was given to the defendant or her counsel to defend the suit before judgment was fixed and given on the 30th day of September, 2003. That the trial judge did not adjourn for defence on the 25th September, he had earlier fixed for trial. Learned counsel contended that the proceedings conducted on the 23rd of September 2003 and the judgment delivered thereafter on the 30th day of September 2003 without hearing notice to the defendant/appellant or her counsel breached the defendant’s right to fair hearing and occasioned a miscarriage of justice. The law and the Constitution has taken stringent steps to make sure that no case is tried in the absence of any of the parties. Reliance was placed on Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999. See also Evangelist Patrick Essien v. Rowland Nsefik Rogers (2003) FWLR (Pt 157) 1058 paras (6).
Learned counsel further contended that there is no where in the record of appeal where the learned trial Chief Judge ordered a hearing notice to be given to the defendant/appellant before he commenced the hearing and proceeded to judgment. That he did not make inquiry or bothered about it even though it is by law his duty. It is the contention of the appellant that neither the defendant/appellant nor her counsel was aware that the date for hearing was changed or re-fixed by the trial judge. To show that service of hearing notice is very fundamental, counsel relied on the cases of Okoroafor Mbadinuju & 3 Ors v. Chukwunyere Ezuka & 5 Ors (1994) 10 SCNJ 109 at 111; Mai Sanka Co. (Nig.) Ltd. & Ors. v. Engr. Adzege (2001) FWLR (Pt 68) 1104 at 1121 and Azaki Fadawa & Ors. v. Agmada Jatau (2003) FWLR (Pt 164) 228 at 236 – 237.
Appellant’s contention in this appeal is that the procedure adopted by the trial judge which inevitably deprived him of defending the suit breached his fundamental right to fair hearing. He cited Sam Fam Financiers Limited v. Mr. Charles S.B. Aina (2003) FWLR (pt 159) 1482 at 1485 para. (6) in support of his contention.
That the principle of fair hearing is breached where the parties are not given equal opportunity to be heard in the case before the court as happened in this present appeal, where the appellant was totally shut out from confronting the plaintiff with his defence. It amounts to a fragrant breach of the appellant’s fundamental right to fair hearing. See Ifeanyichukwu Ejeka v. The State (2003) FWLR (Pt. 162) 1893 at 1897, Amama Community Bank Nig Ltd and Anor v. Mr. Okwu Olu (2003) FWLR (Pt 158) 1309 at 1310. That the effect of failure to observe the rule of fair hearing in a trial, especially where the principle of natural justice, audi alteram partem, is violated, the proceedings will be declared null and void. It does not matter whether the proper thing had been done, the decision would have been the same. See on this point the case of Alhaji Buka Talbari v. Mallam Mustapha Fajibe (2003) 7 FR 224 at 227 paras. (3)
The second arm of issue No. 1 complained of non-service to the defendant/appellant or her counsel of motion on notice for extension of time to file reply to the statement of defence.
According to learned counsel on the 26th day of June 2003, the court closed the pleadings of the parties and adjourned the suit for trial. However, on the 23rd day of July, 2003 the trial judge granted a motion giving the plaintiff/respondent an extension of time to file a reply to the statement of defence. That the said motion was not served on the appellant or her counsel. Counsel submitted that the hearing and granting of the said motion without the same being served on the defendant or her counsel breached the defendant’s right to fair hearing and occasioned a miscarriage of justice. That Section 36(1) of the constitution was clearly breached by the trial judge. It is submitted that the subject of the complaint is a motion on notice and not ex-parte application which was brought pursuant to order 20 Rule 3(1) of the High Court Rules, of Anambra State 1988. Counsel referred to the provisions of Order 16 Rules 15, 16 and 17 of the then Anambra State High Court Rules and contended that the effect of the rules referred to (supra) is that service of process i.e. motion paper is envisaged by law as a condition precedent before an order could be made by a trial judge pursuant to such motion on notice. That failure to serve such process renders the order or judgment therein made a nullity as the jurisdiction of the trial court was not properly invoked. See Alhaji J. A. Oduta v. Inspector Kayode (1994) 2 SCNJ 21 at 22 and Odita v. Okwudinma (1969) 2 All NLR 228 at 231 – 232.
Counsel urged the court to resolve issue one in favour of the appellant.
The arguments canvassed by the respondent under the sole issue is in response to appellant’s submission under issue one. Learned counsel commenced the argument by contending that a thorough appraisal of the proceedings of this case, in the lower court shows clearly the appellant’s lackadaisical attitude in the defence of the suit since it was filed in May 2002 as an undefended list to September 2003 when judgment was delivered. That appellant woke up after the execution of the judgment in April, 2004. Counsel urged the court to note that even in the absence of the appellant’s counsel on 19/2/2013, the trial court transferred the matter to the general cause list, and ordered pleadings to be filed and served by the parties within 15 days for each party. According to respondent’s counsel, appellant never deemed it necessary to file its statement of defence until the respondent’s application for judgment was served on the appellant’s counsel in May 2003, yet the trial court granted the appellant’s application for extension of time and refused respondent’s motion for judgment on 23rd June, 2003. That on the same 23/6/2003, in the presence of the parties, and their counsel, the court, among other things, slated the matter for hearing on 21st and 23rd July, 2003. According to counsel on 18th July 2003, the respondent filed a motion on notice dated 17th day of July, 2003 for an extension of time to file its reply to react to new issues raised by the appellant in his statement of defence and attached the proposed reply. That the motion was fixed for the 21st day of July, 2003 one of the days already fixed by the court for hearing the matter.
According to respondent’s counsel the motion was served on the appellant’s counsel by the bailiff of the court, one Mr. Osakwe, on the same day it was filed. That on 21st July 2013, the court did not sit because students of Nnamdi Azikiwe University Awka had a demonstration in Awka and that grounded activities in the capital city including court. That the court sat on 23rd July, 2003 and after being satisfied that appellant was served with motion dated 17/7/2003, it heard the motion and granted same and the matter was adjourned to 23rd and 25th September 2003.
It is the contention of respondent’s counsel that appellant was given an ample opportunity to defend the suit at the trial court. Learned counsel strenuously argued that on the 23rd June, 2003 both the appellant and its counsel were in court when the matter was adjourned to 21st and 23rd July 2003. That the fact that the court did not sit on 21st July 2003 was not an excuse since the matter was adjourned for two days. That on 23rd July, 2003 the court had to further adjourn the matter to 23rd September 2003 since appellant did not send any letter explaining his absence.
Appellant or its counsel ought to have inquired about the proceedings of 23rd July, 2003 and they would have known that the matter was adjourned to 23rd September, 2003 for hearing.
That equity, it is said does not wait for the indolent. Reliance was placed on the cases of Attorney-General of Anambra State v. B.C. Nwobodo (1992) NWLR (Pt 256) 711 at 725 paras. G – H, and Hassan Shahimi v. A.A. Akintola (1993) 5 NWLR (Pt 294) 433 at 447 paras F9 to support his contention that audi alteram partem rule does not apply in a situation where a party was afforded opportunity to defend himself but he deliberately, refused to avail himself of such an opportunity. See also James Ekrebe & Anor. v. His Royal Highness E.O. Efeizomor II & Anor. (1993) 7 NWLR 307) 588.
Learned counsel also contended that a party who elected not to be heard cannot complain of breach of fair hearing. Cases cited in support are: Nuba Commercial Farms Ltd. & Anor v. NAL Merchant Bank Ltd & Anor. (2001) 6 NWLR (Pt. 740) 510 at 520 paras. B- E: Eze Cornelius Ofoegbu & Ors v. Prince James Iheanacho (2001) 5 NWLR (Pt 703) 219 at 226 paras A – B and Murli Mirchandani & Anor v. Babatunde Pinheiro (2001) 3 NWLR (Pt 701) 557 at 571 paras C – D and page 571 paras. D – E. That it is not for the court to wait indefinitely for the convenience of a party, for justice delayed is justice denied. Counsel urged the court to resolve this issue in favour of the respondent.
Appellant responded in the amended appellant’s reply brief. It is submitted that the cases cited by the respondent’s counsel at paragraphs 4.10, 4.11, 4.12, 4.13, 4.14 and 4.15 of the respondent’s brief do not apply to the case under consideration before this Appeal Court. Counsel argued that the cases cited by the respondent’s counsel deal with a situation where a party knew of the adjourned date of hearing and hearing took place but he did not attend court. That the present case deals with a situation where the judge and the respondent’s counsel re-fixed the date of hearing of the case without notice to the appellant or his counsel. Counsel argued that this is a situation whereby, from the circumstances as even admitted in paragraph 2.09 of the respondent’s brief of argument and also as deposed to in the affidavit of the respondent at page 46 of the record of appeal, it is clear that there was lingering national strike and civil disturbances at least up to the 21st of July 2003 making it impossible even for the court to sit on 21st July 2003. That in view of these circumstances admitted in the Respondent’s Brief and also in the Record of Appeal, hearing notices is in the circumstances extremely necessary since the appellant was not present in the court on the 23rd July, 2003 when the date was re-fixed for 23rd and 25th of September 2003 for hearing. Reliance was placed on the case of Agena & anor. v. James Katseen (1998) 3 NWLR (Pt 543) 560 wherein it was held that where the circumstances is such that hearing notice is necessary, it must be issued. The court further held that failure to notify a party of the date of hearing of a matter renders the proceedings null and void as the court lacks jurisdiction to entertain the matter. Reliance was also placed on the case of A.G. Rivers State v. Ude (2007) FWLR Pt. 347, 598 at 614. Counsel contended that the proceedings of 23rd September 2003 showed that immediately the PW1 concluded his evidence in Chief, the court proceeded immediately to take address from the respondent’s counsel and at the same time, adjourn for judgment. That the record revealed that cross- examination of PW1 was not foreclosed and plaintiff/respondent did not formerly close its case neither was the matter adjourned for defence, let alone defence being foreclosed. That even at the point when respondent concluded the address, appellant was entitled to hearing notice to open his defence. Counsel urged the court to discountenance the argument of respondent’s counsel on the issue of hearing notice and breach of rule of fair hearing and the cases therein cited. He urged the court to allow the appeal and set aside the judgment of the trial court.
This issue is crucial in that the complaint of the appellant relates to denial of fair hearing. The kernel of appellant’s complaint is that the trial court re-fixed the matter and proceeded with the hearing up to delivery of judgment in absence of the appellant or her counsel as no hearing notice was served on either of them.
I find it necessary at this stage to narrate in detail what transpired at the trial court from the date pleadings were closed.
The records clearly show that:
1. Appellant’s counsel was in court on 23/6/03 when pleadings were deemed closed. The suit was set down for trial on 21st and 23rd July, 2003.
2. Court did not sit on the 21st July, 2003.
3. The court sat on the 23/7/2003.
Appellant and her counsel were absent.
Respondent’s counsel moved his motion dated 17/7/03 praying for extension of time to file a reply to the Statement of Defence. Relied on the affidavit in support. Prays in terms of the motion paper. The court granted the order as prayed and adjourned the suit to 23/9/03 and 25/9/03 for trial.
The record did not show that the motion on notice filed on 17/7/03 was served on the Appellant before same was moved and granted.
4. On 23/9/2003, the court proceeded with trial in absence of the appellant. After respondent’s sole witness testified the court allowed its counsel to address the court. After the address, the court adjourned the matter to 30/9/2003 for judgment. Part of the proceedings of 23/9/03 read thus:-
“Court: Parties and counsel for both parties were present in court on the 23rd June, 2003 when the court made orders for preparation for trial and settlement of issues and adjourned the case to 23rd July, 2003.
On 23/7/2003, the plaintiff and their counsel were present but the defendant and their counsel were absent. There was no explanation for their absence. The court heard the application of plaintiffs counsel for extension of time to file a Reply to the Statement of Defence. The order was granted and the suit was adjourned to today for hearing. Today, neither the defendant nor their counsel are in court and no explanation was given for their absence. Pleadings having been concluded and the orders for preparations for trial complied with, the court will proceed to the trial of this otherwise simple case of loan transaction.”
5. Judgment was delivered in this matter on 30/9/2003 in absence of the appellant or its counsel.
It is to be noted that after the address presented by respondent’s counsel on 23/9/03, there was no attempt made by the court to serve hearing notice on the appellant.
I have carefully examined the record. It is true that appellant’s counsel was in court on 23/6/03 when the suit was fixed for trial against 21st and 23rd July 2003. Both counsel are however in agreement that court did not sit on the 21st July, 2003 due to National strike and civil disturbances. It cannot therefore be said that learned counsel for the appellant willfully absented himself on the 23/7/03 when the matter was re-fixed against 23/9/2003 and 25/9/2003 for hearing. While appellant’s counsel could be blamed for not making inquiry as to whether the court would sit on 23/7/2003, he was entitled to be served with hearing notice against the 23/9/2003 since the matter was re-fixed by the court against 23/9/2003 and 25/9/2003 respectively for hearing at the conclusion of proceedings of 23/7/2003. The record clearly showed that the court did not make any attempt to serve the appellant or her counsel with hearing notice. The circumstance is such that hearing notice ought to have been served on the appellant or her counsel. In Attorney General, Rivers State v. Ude (supra) the Supreme Court held that where a court adjourns a case beyond a date when the litigants have notice of the hearing of the case, the court has a duty to notify the parties of the subsequent adjournment.
Furthermore, the record showed that the proceedings of 23/9/03 was conducted in absence of the appellant and her counsel.
As rightly observed by appellant’s counsel, the record revealed that after the lone witness called by the plaintiff/respondent testified, the court immediately proceeded to take address from respondent’s counsel. There is nothing on record to show that plaintiff/respondent formerly closed its case and the court closed the defence case in their absence. At least, even at the point when respondent’s counsel concluded his address, appellant was entitled to be served with hearing notice to open their defence. If the appellant failed to turn up on the adjourned date, then the court would proceed to give judgment in the matter.
What then is the position of the law on failure to serve hearing notice vis a vis the right to fair hearing. The right to fair hearing is a fundamental Constitutional right guaranteed by Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 and a breach of this right in trial or adjudication will vitiate the proceedings, rendering the same null and void and of no effect. In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constitution in such manner as to secure its independence and impartiality. The determinant factor for the application of the principle of natural justice is fairness. In other words, natural justice is fair play in an action. See Ex Parte Obiyan (1973) 12 SC 21. A hearing in a matter in court cannot be said to be fair if any of the parties appearing before the court is refused a hearing or denied the opportunity to be heard or present his case or call evidence. See Governor Imo State v. Nwauwa (1997) 2 NWLR (pt 490) 675. Wherein the Supreme Court per Iguh JSC at page 709 held that: “The term “fair hearing” has been judicially interpreted to involve situations where whether having regard to all the circumstances of a case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the tribunal was fair to all the parties to the proceedings. It is said to mean a trial conducted according to all the legal rules formulated to ensure that justice is done to all the parties to a cause or matter.” Therefore any judgment which is given without compliance and which has breached fundamental right of fair hearing is a nullity and capable of being set aside by the court that made the orders or by the appellate court. See A. G. Rivers State v. Ude (supra) and Bamgboye v. University of Ilorin (1999) 10 NWLR (pt 622) 290.
The principle of fair hearing incorporates the audi alteram partem rule. It means “hear the other side”. The components of the audi alteram partem rule were fully set out in the case of Eshenake v. Gbinije (2006) 1 NWLR (pt 961) 228 at 249. In general, the rule is that a verdict should not be entered against a man on a matter relating to his civil rights or obligations without being given an opportunity of being heard. A denial of right to be heard or opportunity to be heard is a breach of constitutional right and rules of natural justice and should not be allowed. See Otapo v. Sunmonu (1987) 2 NWLR (Pt 58) 587.
The purport of opportunity to be heard arises when hearing notice is served on a party or the party is not served to be in court.
It is the proceedings in the case that determines the question of fair hearing. Furthermore, it is trite law that failure to effect service of process where it is required renders the subsequent proceedings and judgment a nullity. See Tsokwa Motors (Nig) Ltd v. UBA Plc. (2008) 2 NWLR (Pt. 1071) SC 347 and Wappah v. Mourah (2006) 18 NWLR (pt 1010) 18. Therefore lack of service of processes including hearing notice does not only affect the form but goes to the root of the matter. In Okorafor Mbadinuju v. Chukwunyere Ezuka (1996) 8 NWLR (Pt 364) the Supreme Court held that failure to notify the parties of the date for hearing of the matter renders the proceedings null and void as the court lacks jurisdiction to entertain the matter. See Sken Consult (Nig) Ltd v. Ukey (1981) 1 SC 6. It is therefore, the service of hearing notice that confers jurisdiction on the trial court to entertain an application or to hear the substantive matter.
In the instant appeal, I have earlier discussed in this judgment and hold the view that appellant was entitled to be served with hearing notice by the trial court when the matter was re-fixed against 23/9/2003 and 25/9/2003 respectively. Failure to serve the appellant with the hearing notice is a fundamental omission. As same was not done, I am of the firm view that appellant’s right to fair hearing has been compromised.
The judgment delivered on 30/9/2003 in this matter ought to be set aside as same is a nullity. The law places a duty on the trial judge to provide the opportunity for the party to be heard by ordering hearing notice to communicate the next adjourned date. It is pertinent at this stage to reproduce the observation of Nnaemeka – Agu J.S.C in Dawodu v. Olugundudu (1986) 4 NWLR (Pt. 33) 104, particularly at page 114 where he held “……The learned trial judge obviously acted out of exasperation for the constant adjournments of the proceedings. Having regard to the constant out-cry against delays in the trial of cases and the consequent congestion of our courts, this is understandable. But, in showing his disapproval of the situation, he should have done well to remember that certain features of our adversary system of administration of justice carry with them same implications of inevitable delay. The audi alteram partem rule, (which together with the rule nemo judex in causa sua form the twin pillars upon which fair hearing is based), carries with it the need to give to all parties due notice of hearing and the opportunity to be heard and to cross-examine every witness called by one’s adversaries.
Generally, a breach of the rule, save in a few statutory exceptions, will invalidate the proceedings because it is breach of not only the right to fair hearing entrenched in our constitution but also a breach of rule of natural law”.
The principle of fair hearing lies not in the correctness or propriety of the decision but rather in the procedure followed in the trial and determination of the case. In State v. Onagoruwa (1992) 2 SCNJ 1 at 56 the Supreme Court per Karibe Whyte JSC, re-emphasized this principle thus:-
“it is only when the opponent has been heard that the judge would be seen to be discharging the duty of an unbiased umpire. Learned counsel for the respondent appears to consider the absence of miscarriage of justice as a consideration to ameliorate an infringement of a provision of fundamental human right. This is not the correct legal position. The violation of the rule of audi alteram partem per se lies in the breach of the fundamental human right. Once right is violated, it is irrelevant whether the decision made subsequent thereto is correct. See Alhaji Umoru Abba Tukur v. Government of Gongola State (1989) 9 SC 1; (1989) 4 NWLR (pt. 117) 517 (1989) 9 SCNJ, (1989) All NLR 5575; (1989) 20 NSCC (pt 111) 225.”
The procedure adopted by the learned trial judge constitutes a breach of the principle of fair hearing. In the instance circumstance it cannot be said that appellant was indolent as argued by respondent’s counsel. Appellant was only aware of the adjournment of the matter against 23/7/2003 but the re-fixing of the matter against 23/9/2003 and 25/9/2003 was not brought to the notice of her counsel. Had it been that the matter was heard and concluded on that 23/7/2003, then appellant would have himself to blame. But since it was not so and the court adjourned the matter beyond the date which appellant had notice of the hearing of the matter, the court was duty bound to issue hearing notice against the new date being 23/9/2003. The authorities cited by respondent’s counsel are therefore distinguishable from the facts and circumstances of the case at hand. The cases cited are therefore inapplicable, considering the circumstances of the case.
The complaint of the appellant that the motion on notice moved by the respondent on 23/7/2003 was not served on him has merit. The proceedings of 23/7/2003 clearly showed that appellant’s counsel was not in court and there is nothing on record to show that the motion was served on appellant’s counsel by either the court bailiff or respondent’s counsel. Despite the fact that appellant was aware that the matter was adjourned against 23/7/2003 for hearing, he was entitled to be served with the motion paper. Appellant is entitled to two clear days before the hearing of the motion as provided by Order 16 Rules, 15, 16 and 17 of the Anambra State High Court Rules, 1988. The provisions of the said rules have been reproduced in appellant’s amended brief of argument at pages 7 – 8 as follows:-
Order 16 Rules 15, 16 and 17 provides:-
“15. where a motion is on notice unless the court give special leave to the contrary, there shall be at least two clear days between the service of a notice of motion and the day named in the notice for hearing the motion.
16. Motion papers may, without leave of the court, be served by any person, not withstanding that such person is not an officer of the court, and such papers may be delivered by counsel to counsel without prior order of the court.
17. Where a party acts by a legal practitioner, service of notice of motion on such legal practitioner shall be deemed good service on such party”.
The wordings of Order 16 Rules, 15, 16, and 17 of the High Court Rules of Anambra State are clear and unambiguous. The rules refers to service of motion on notice and not motion ex-parte. The effect of the above High Court Rules, of Anambra State as rightly argued by appellant’s counsel is that service of process i.e. motion paper is envisaged by law as a condition precedent before an order could be made by a trial judge pursuant to such motion on notice.
Failure to serve such process renders the order or judgment therein made a nullity as the jurisdiction of the trial court was not properly invoked. See Alhaji J.A. Odutola v. Inspector Kayode (1994) 2 SCNJ 21 at 22 paras 4 wherein the Supreme Court held that where service of process or notice of a proceeding is required to be given, failure to notify any party to the case is fundamental omission which entitles the party not served and against whom any order is made in absence to have the order set aside on the ground that a condition precedent to the exercise of jurisdiction for making the order has not been fulfilled. See also Geosite Surveyors (Nig) Ltd v. Nwagbara (2007) ALL FWLR (Pt 386) 742. In UBA Plc. v. Tsokwa Motors Ltd (2001) FWLR (pt 22) 1057 at 1073 this court per Mangaji JCA. (of blessed memory) succinctly stated thus:-
“Undoubtedly, service of process on a party to enable him to be present to defend a relief being sought is a sine-quo non to assumption of jurisdiction. Where service of process is required but is not effected, whatever is done thereafter is rendered a nullity. There is nothing an appellate court can usually do than to set aside such proceedings.”
In another related case of Odita v. Okwudinma (1969) 2 ALL N.L.R 228 at 231 – 232 cited by appellant’s counsel, Lewis J.S.C. had this to say:-
“In our view, the failure to serve notice on the appellant or alternatively to obtain an order dispensing with such service renders the proceedings a nullity, and not a mere irregularity – as the appellant was entitled as a person directly affected to notice of the proposed application.”
I agree with appellant’s counsel that the hearing and granting of the said motion without the same being served on the defendant/appellant or her counsel breached the appellant’s right to fair hearing and occasioned a miscarriage of justice. The principles of fair hearing enshrined under S. 36(1) of the 1999 Constitution of the Federal Republic of Nigeria was flagrantly breached by the learned trial judge.
It is settled principle of law that where, in any proceedings, the rules of natural justice or the principles of fair hearing are breached, such a breach renders the entire proceedings null and void and the appropriate consequential order is one of retrial before another judge of the court. See Rasaki Asahi v. Madam Towuro Egeibon (1994) 6 NWLR (Pt 348) 23 at 44 and Adigun v. A.G. of Oyo State (No.2) & Ors (1987) 2 NWLR (Pt 56) 197.
Consequently, issue one will be resolved in favour of the appellant. The resolution of issue one determines the entire appeal.
It would be an exercise in futility to resolve issue 2. The apex court has warned that courts should not embark on academic exercise while resolving issues in a matter.
In the result, I hold that this appeal is meritorious and succeeds on issue one. Appeal allowed in part.
The judgment delivered on 30/9/2003 by C.J. Okoli, Chief Judge Anambra State is hereby set aside. The case is hereby remitted to the Chief Judge of Anambra State to be assigned to another judge of the High Court of Justice Anambra State retrial denovo. Parties to bear their own costs.
IGNATIUS I. AGUBE, J.C.A.: The Judgment of my noble and learned brother Mshelia, J.C.A. has been read in advance and I agree that the learned trial Judge breached the Appellant’s right to fair hearing when he went ahead to hear and determine his case in the absence of the Appellant’s Counsel and without giving either Appellant or his Counsel notice in advance.
Hereby, the Appeal is meritorious and is accordingly allowed on all the authorities cited by parties and considered by my learned brother. I accede to the order of reassignment of the case to another Judge of the Anambra State High Court of Justice for hearing and determination denovo.
EMMANUEL AKOMAYE AGIM, J.C.A.: I had a preview of the well thought out judgment just delivered by my Learned Sister ADZIRA GANA MSHELIA, JCA. I am in complete agreement with the reasoning and conclusions therein.
I also hold that the appeal has merit and is allowed. The judgment of Anambra State High Court in Suit No. A/126/2002 delivered on 30-9-2003 is hereby set aside. The case is remitted back to Anambra State High Court for trial denovo. Parties to bear their own costs.
Appearances
F.C. NwankwoFor Appellant
AND
P.E. OkoyeFor Respondent
