NTOL CLEMENT ASHAGBA & ORS. V. MR. MICHAEL MONN & ANOR.
(2011)LCN/4600(CA)
In The Court of Appeal of Nigeria
On Friday, the 3rd day of June, 2011
CA/C/23/2009
RATIO
PROLIFERATION OF ISSUES: WHETHER AN APPELLANT IS PERMITTED TO FORMULATE MORE THAN ONE ISSUE FROM A GROUND OF APPEAL
A legal practitioner who is familiar with the practice in the Appellate Courts must by now understand that proliferation of issues is not tolerated by the Courts. It is the practice that whiles two or more grounds of Appeal may generate one issue for determination, an Appellant is not permitted to formulate more than one issue from a Ground of Appeal. See Agbetola v. Lagos State Executive Council (1991) 15 NWLR (Pt. 188) 664; Mercantile Bank of Nigeria Plc v. Nwobodo (2005) 14 NWLR (pt. 945) 379; Amodu v. The Commandant, Police College, Maiduguri (2009) All FWLR (Pt. 488) 195. PER ISAIAH OLUFEMI AKEJU, J.C.A.
ISSUES FOR DETERMINATION: WHETHER THE ISSUES FOR DETERMINATION IN AN APPEAL MUST RELATE TO OR BE FOUNDED UPON THE GROUND OF APPEAL FILED
It is also settled that an issue must relate to or be founded upon the Ground of Appeal filed. See Emespo J. Continental Ltd. v. Corona Shifah-Rtsgesellschaft (2006) All FWLR (Pt. 321) 1233. PER ISAIAH OLUFEMI AKEJU, J.C.A.
FAIR HEARING: THE PRINCIPLE OF FAIR HEARING
The principle of law that a man should be heard in the determination of his rights and obligations by or against any government or authority is recognized in our legal system and it is indeed a guaranteed right under Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, The fair hearing principle is also a principle of natural justice based on the twin pillars of audi alteram partem i.e. hear the other party, and nemo judex in causa sua i.e. do not be a judge in your own cause. It is therefore required that in proceedings before a court or any authority, the rule of fair hearing must be given due recognition and application by ensuring that parties have the opportunity of being heard. PER ISAIAH OLUFEMI AKEJU, J.C.A.
BREACH OF FAIR HEARING: EFFECT OF A TRIAL CONDUCTED IN OF THE PRINCIPLE OF FAIR HEARING
The effect of a breach of the principle of fair hearing is that the whole trial is vitiated and rendered null and void. See Bamgboye v. University of Ilorin (1999) 10 NWLR (pt. 622) 290: Okafor v. Att. General Anambra state (1991) 6 NWLR (Pt. 200) 656; Military Governor of Imo State v. Nwauwa (1997) 2 NWLR (Pt. 490) 675. PER ISAIAH OLUFEMI AKEJU, J.C.A.
FAIR HEARING: WHETHER A PARTY WHO HAS HAD AMPLE OPPORTUNITY TO BE HEARD BY HAVING ADEQUATE NOTICE OF THE CASE AGAINST HIM BUT FAILED TO ATTEND THE PROCEEDINGS WITHOUT ANY REASON KNOWN TO COURT CAN COMPLAIN OF LACK OF FAIR HEARING
It is the facts and circumstances of each case that will determine whether this right has been breached by court, the court is to create a conducive atmosphere and opportunity for the parties to present their cases and not for them to be heard compulsorily. Thus a party who has had ample opportunity to be heard by having adequate notice of the case against him and the place, date and time of the hearing but failed to attend the proceedings without any reason known to court cannot after all complain of lack of fair hearing. PER ISAIAH OLUFEMI AKEJU, J.C.A.
JUSTICES
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
1. NTOL CLEMENT ASHAGBA
2. EMMANUEL ISHAKA
3. IMUM AFOK
4. UGEH ARUKU
5. MARK MGBA IKPOK
6. EKPANG UGEH
(Sued as Representing Ndok Community Ogoja L.G.A of Cross River State) Appellant(s)
AND
1. MR. MICHAEL MONN
2. MR. KIERIAN MODEY Respondent(s)
ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): At the Ogoja Division of the High Court of Cross River State, the Appellants were the Defendants in Suit No. HJ/59/2005 instituted by the Respondents through the Writ of Summons and Statement of Claim filed on 1/8/2005 for the reliefs endorsed on the Writ of Summons and particularized in the Statement of Claim as follows:
“1. A DECLARATION that the 1st plaintiff is the owner of the twenty plots lying and situate off Ogoja/Ikom Road Ndok junction Ogoja having paid for same and as witnessed by agreement dated 1st day of October 1990.
2. Five Million Naira (N5,000,000.00) only being special, exemplary, aggravated and general damages for trespass by Defendants restraining first plaintiff from development and use of his land.
3. Perpetual injunction restraining the Defendants, by themselves, their agents, workers, successors in title heirs assigns executors and administrators from tampering and entering unto 1st plaintiff’s land.”
The 1st Respondent alone testified at the trial of the suit and in the judgment of the lower court delivered on 14/6/2007, the learned trial judge Hon. Justice Michael Edem granted the declaratory and injunctive reliefs sought by the Respondents while N25,000.00 was awarded as general damages and N20,000.00 as cost of transportation from and fueling from Abuja to Ndok and Calabar.
The Appellants as Defendants were dissatisfied with the judgment of the lower court and appealed to this Court by the Notice and Grounds of Appeal filed on 28/10/2008 upon the Order of this Court extending the period to appeal.
The Appellants filed only one Ground of Appeal as follows:
“The learned trial judge erred in law when he proceeded to deliver judgment without availing the appellant the opportunity to be heard or cross-examine the Respondents.
(a) The trial court ought to have issued a hearing notice.
(b) The Appellants had already filed their joint statement of defence with leave of court to defend the suit at the lower court on the merit, but the trial court wrongly struck out same and proceeded to deliver judgment.
(c) The Appellants were denied fair hearing.”
The Appellants’ Brief of Argument filed on 30/3/2009 was settled by Philip Obien Esq., learned counsel and he therein raised three issues for determination as follows:
1. Whether the lower court’s refusal to order hearing notice to be served on the Appellants after the 1st Respondent’s evidence amounted to a breach of fair hearing,
2. Whether the Appellants filed a Defence recognized in law.
3. Whether the lower court’s refusal to set aside its judgment to allow the Appellants cross-examine the 1st Respondent amounted to a denial of fair hearing.
The Respondents’ Brief of Argument filed on 17/9/2010 was deemed by order of this court to be properly filed on 22/2/2011. The Respondents did not formulate any issue of their own but adopted and argued all the three issues formulated by Appellants.
At the hearing of this appeal on 15th March, 2011, the learned counsel on both sides adopted their respective Briefs of Arguments and placed reliance thereon. Learned Counsel for the Appellants urged court to allow the appeal while the learned counsel for the Respondents rather urged upon this court that the appeal be dismissed.
A legal practitioner who is familiar with the practice in the Appellate Courts must by now understand that proliferation of issues is not tolerated by the Courts. It is the practice that whiles two or more grounds of Appeal may generate one issue for determination, an Appellant is not permitted to formulate more than one issue from a Ground of Appeal. See Agbetola v. Lagos State Executive Council (1991) 15 NWLR (Pt. 188) 664; Mercantile Bank of Nigeria Plc v. Nwobodo (2005) 14 NWLR (pt. 945) 379; Amodu v. The Commandant, Police College, Maiduguri (2009) All FWLR (Pt. 488) 195. It is also settled that an issue must relate to or be founded upon the Ground of Appeal filed. See Emespo J. Continental Ltd. v. Corona Shifah-Rtsgesellschaft (2006) All FWLR (Pt. 321) 1233.
The first issue raised by the Appellants is whether the lower court’s refusal to order hearing notice to be served on the Appellants after the evidence of the Respondents was a breach of the rule of fair hearing.
The learned counsel for the Appellants had argued that this failure constituted a gross violation of the rights of the Appellants to fair hearing and placed reliance on Mohammed v. Husseiui (1998) 12 SCNJ 136; Mankanny vs. Salman (2005) 4 NWLR (Pt. 915) 270; S. B. N. Padawa v. Jatau (2003) FWLR (pt. 164) 228; Okonkwo v. Okonkwo (1998) 10 NWLR (pt. 571) 554; Asuwuo v. Eshiet (2008) All FWLR (pt. 401) 970.
The Brief background of the instant case is that at the proceedings of 20th April, 2007 at the lower court, the learned counsel for the Appellants (then Defendants) was present and apologized for the absence of the Defendants. He applied orally for time to file and serve Statement of Defence and specifically requested for three days which the court granted and adjourned to 17th May 2007 for hearing.
The learned counsel did not file the Statement of Defence as ordered by court upon his own request, but filed after six days and the same was served on the (Plaintiffs’) Respondents’ counsel in court on 17th May, 2007. The Appellant and counsel were also absent at the proceedings of 17th May, 2007 without any notice or information whatsoever to court regarding this absence. The lower court struck out the irregularly filed State of Defence and proceeded to hear the case of the Respondents. The Respondents called only the 1st Respondent as PW1 and at the end of his evidence the learned trial judge adjourned for judgment. The lower court heard the Appellants’ motion to arrest the judgment and dismissed the same before delivering the judgment of that court.
From the above scenario the only live issue is this appeal arising from the lone ground of appeal is issue 1 which poses a narrow question of whether failure to issue hearing notice on the Appellants who were represented by counsel in Court on the date the case was fixed for hearing but who failed to attend court on the date he consented to for hearing was a violation of their right to fair hearing.
On this issue the learned counsel for the Respondents argued that a party who intends to be absorbed from liability must be vigilant in Defending his case, citing Muhammed v. Kpelai (2001) 6 NWLR (Pt. 710) 700. He submitted that where counsel and litigant fail to be vigilant and diligent in their case, the case has to proceed to judgment, citing K.T.T. plc v. Gloede (2002) 7 WRN 78; Bill Construction v. Imani (2007) 3 MJSC 217.
The learned counsel submitted that there was a glaring case of abandonment and unwillingness on the part of the Appellants to take advantage of the opportunity of fair hearing created by the court and they can no longer complain, citing Adeleke v. Ogbonda (2002) 1 MJSC 160. He submitted also that in Mohammed v. Husseini (supra) relied upon by the Appellants the case was previously adjourned sine die unlike in the instant case in which a specific hearing date was fixed. He cited A.G. Rivers State v. Ude (2006) 7 SCNJ 613; ODMF Ltd. v. NACB Ltd. (2008) 44 WRN 166; Magna Maritime v. Oteju (2005) 5 SCNJ 100.
The Appellants filed a Reply Brief which substantially contains arguments rolled together on the proliferated issues. The learned counsel to the appellant has canvassed the issue of fair hearing in his Brief a principle which he said the lower court had breached as far as the Appellants were concerned. It has become white common for counsel to resort to fair hearing at the level of appeal as a mathematical almighty formula that resolves a case in their favour automatically without regard to the very facts and circumstances of the case itself.
The principle of law that a man should be heard in the determination of his rights and obligations by or against any government or authority is recognized in our legal system and it is indeed a guaranteed right under Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, The fair hearing principle is also a principle of natural justice based on the twin pillars of audi alteram partem i.e. hear the other party, and nemo judex in causa sua i.e. do not be a judge in your own cause.
It is therefore required that in proceedings before a court or any authority, the rule of fair hearing must be given due recognition and application by ensuring that parties have the opportunity of being heard. The effect of a breach of the principle of fair hearing is that the whole trial is vitiated and rendered null and void. See Bamgboye v. University of Ilorin (1999) 10 NWLR (pt. 622) 290: Okafor v. Att. General Anambra state (1991) 6 NWLR (Pt. 200) 656; Military Governor of Imo State v. Nwauwa (1997) 2 NWLR (Pt. 490) 675.
It is the facts and circumstances of each case that will determine whether this right has been breached by court, the court is to create a conducive atmosphere and opportunity for the parties to present their cases and not for them to be heard compulsorily. Thus a party who has had ample opportunity to be heard by having adequate notice of the case against him and the place, date and time of the hearing but failed to attend the proceedings without any reason known to court cannot after all complain of lack of fair hearing. As I had stated earlier, the Appellants were duly represented by their learned counsel in court on the day the lower court fixed the instant case for trial and he consented, and the same counsel and litigants were absent from court on that date of hearing without any reason. The best notice is that which was communicated in court and a party who has had the benefit of such communication cannot be heard to complain of non-issuance of hearing notice. The purpose of serving hearing notice on a party is to notify such party that the case would be heard on a particular date and once such a party has had such notice in court, failure to serve hearing notice will not affect the jurisdiction of the court. See Jonason Triangles Ltd. v. C M & P Ltd. (2002) 15 NWLR (pt. 789) 176.
The question posed by issue 1 the only lives issue in this appeal has been resolved against the Appellants.
The appeal consequently fails and it is accordingly dismissed.
I make no order as to costs.
JA’FARU MIKA’ILU, J.C.A.: I have read in draft the lead judgment of my learned brother Isaiah Olufemi Akaju, JCA. It is to be noted that once a date for hearing a case is fixed in court in the presence of a party or his counsel, the said party can not be heard to turn around and claim that he has not been served. The best notice undoubtedly is that which was communicated to the party in court. He has notice as the best notice is that which was communicated in court and he therefore, can not be heard to complain of non-issuance of hearing notice. Once a party has had such notice in court he can not be heard to complain of lack of jurisdiction for non-service.
Appeal fails and it is dismissed.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of reading before now, the lead judgment just delivered by my learned brother, Isaiah Olufemi Akeju, JCA. I agree with him entirely on the reasoning and conclusion that the appeal lacks merit and I also dismiss it. I make no order regarding costs.
Appearances
Philip Obiem Esq.For Appellant
AND
Gabriel I. Ugan Esq.For Respondent
