SASSADA CONSTRUCTION COMPANY LIMITED v. DR. (ENGR) ONOJA ONJE
(2019)LCN/13282(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of May, 2019
CA/MK/233/2014
RATIO
ADJOURNMENTS: THE COURTS SHOULD INFORM COUNSEL WHEN IT CANNOT SIT
TWhere a Court, in the presence of Counsel to both sides, adjourns a case to a certain date for hearing, but for some reason it is unable to sit on that date, it is important and mandatory that notices indicating the new date for the hearing of the case be issued and served on the parties or their Counsel. This ensures not only that they become aware of the new date, but that there is a record of the issuance of such notice and the fact that it was served on Counsel. Without such record, it cannot be validly contended that the party who is not in Court was aware that the matter was coming up that day.PER JUMMAI HANNATU SANKEY, J.C.A.
SERVICE: THE EFFECT OF FAILURE TO SERVE
See the decision of the Supreme Court in Achuzia V Ogbomah (2016) LPELR-40050 (SC) 14 per Galadima, JSC:
“It is trite that failure to serve a party in a case with a hearing notice indicating clearly when and where the Court is to sit is a fundamental irregularity which easily vitiate the proceedings, and make it a nullity, however well conducted and decided. The effect is extrinsic to the adjudication. See the English decision in CRAIG v. RANSEEN (1943) k. b 25 at pp 262-263 cited and relied upon by this Court in SKEN CONSULT (NIG) LTD & ANOR v. GODWIN SEKONDY UKEY (1981) 1 SC. pt at p. 15.”PER JUMMAI HANNATU SANKEY, J.C.A.
FAIR HEARING: WHAT IT ENTAILS
In his contribution to the Judgment of the Court, Peter-Odili, JSC at page 22-23 of the same judgment also opined thus:
The requirement of fair hearing implies that each party to a dispute before a Court or Tribunal must be accorded adequate opportunity to state his own side of the case under the principle of “audi alteram partem”, an immutable principle and the other leg of natural justice. This position was well expatiated in the case of Ariayefah Nwaosu V Ibejimba Nwaosu (2000) 4 NWLR (Pt. 653) 351 at 359 where it was stated as in this case in hand that the Court cannot without issuing and serving hearing notice on the party affected, proceed to abridge the time and hear evidence in the absence of the party to be affected. See also Obimonure v. Erinosho & Anor (1966) All NLR 245 at 247.PER JUMMAI HANNATU SANKEY, J.C.A.
SERVICE: LACK OF SERVICE IS A FUNDAMENTAL ISSUE
The import of service of process on the defendant is well captured in Skenconsult (Nig.) Ltd & Anor v. Sekondy Ukey (1981) 7 SC 6 wherein this Court held thus:-
“The service of process on the Defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or any counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. This very well accords with the principles of natural justice.”PER JUMMAI HANNATU SANKEY, J.C.A.
LACK OF SERVICE AFFECTS THE JURISDICTION OF THE COURT
A Court has jurisdiction to hear a case when among other things, its jurisdiction is properly invoked by proper service of the Court process on the defendant. Where the defendant has not been served in accordance with what the substantive and/or procedural law prescribes, the jurisdiction of the Court is not properly invoked for it to entertain the case. Thus, the issue of service is so fundamental that it goes straight to the jurisdiction of the Court. See: Esabunor V Faweya (2019) LPELR-46961(SC) 23 per Rhodes-Vivour, JSC; Ogah V Emenike & Ors (2019) LPELR-46644(CA) 12-13 per Yahaya, JCA; Adeyinka & Ors V Agbakwuru & Ors (2019) LPELR-46824(CA) 13-16 per Tukur, JCA; Nigerian Navy V Ironbar (2017) LPELR-43528(CA) 24-25 per Saulawa, JCA; GTB V NDIC (2018) LPELR-44381(CA) 9-19 per Ogakwu, JCA; Compact Manifold & Energy Services Ltd V Pazan Services (Nig) Ltd (2017) LPELR-41913(CA) 21 per Nimpar, JCA; Obiozor V Nnamua (2014) LPELR-23041(CA) 31 per Agim, JCA; Imminent Nigeria Company V. Prudential Co-Operative Micro Finance Bank (Nigeria) Ltd (2014) LPELR-22700(CA) 33-34; Miden System Ltd V Effiong (2011) 2 NWLR (Pt. 123) 254 at 366; Wema Bank Nigeria Ltd & Ors V Odulaja & Ors (2000) FWLR (Pt. 17) 138, 142-143; ACB Plc V Losada Nig & Anor (1995) 7 SCNJ 158 at 167.PER JUMMAI HANNATU SANKEY, J.C.A.
THE COURT SHOULD ALWAYS INFORM PARTIES OF ADJOURNMENTS
In Achuzia V Ogbomah (2017) LPELR (40050) 1 at 28, the apex Court held as follows:
The law is trite that a Court should always put a party on notice of date of its adjournment of any matter by sending hearing notice to him/it once he was not in Court or represented on a given previous date.PER JUMMAI HANNATU SANKEY, J.C.A.
WHEN A HEARING NOTICE WILL BE REQUIRED
A hearing notice would be required where a Court adjourns a case beyond a date when the litigants have notice of the hearing of the case. Thus, except a party or his Counsel is present in Court and therefore is aware of the adjourned date, the Court has a duty to notify the parties of any subsequent adjournment. Where service of a fresh hearing notice is required, failure to serve such notice is a fundamental vice and the person affected by any order made, but not served with the process, is entitled ex debito justitiae to have the order set aside as a nullity. This is because due service of a fresh hearing notice in the circumstance is a condition sine qua non to the hearing of the suit. See: Madukolu V Nkemdilim (1962) 2 SC NLR 31; Mbadinuju V Ezuka (1994) 8 NWLR (Pt. 364) 535 at 566; Skenconsult (Nig) Ltd V Ukey (1981) 1 SC 6; & Scott-Emuakpor V Ukavbe (1975) NSCC 435.PER JUMMAI HANNATU SANKEY, J.C.A.
HEARING NOTICE: DEFINITION
A hearing notice has been defined as a process by which a party to proceedings is notified of the date the case has been fixed in Court, where he is not otherwise aware of such date. Therefore, service of hearing notice is imperative where a party is not present in Court or duly represented. See: Folorunsho v Shaloub (1994) 3 NWLR (Pt. 333) 413 at 430; So Mai Sonka Co. (Nig.) Ltd V Adzege (2001) 9 NWLR (Pt. 718) 312 and Madueke V Madueke (2011) LPELR (4532) 1 at 22-23.PER JUMMAI HANNATU SANKEY, J.C.A.
JUSTICES
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
SASSADA CONSTRUCTION COMPANY LTD Appellant(s)
AND
DR. (ENGR.) ONOJA ONJE
(Carrying on business in the name and style of Memdon Soil and Water Engineering Consultants) Respondent(s)
JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Default Judgment of the High Court of Justice Benue State in suit No. OKP/HC/1/2013, delivered on the 25/7/2013 by Igoh J., of the Benue State High Court sitting in Okpoga, Benue State.
A brief summary of the facts leading up to the Appeal is as follows: On 10-01-13, the Respondents took out a Writ of Summons claiming ?
– The sum of N300, 000.00 being the outstanding balance of payment in respect of an agreement between the parties due to the Plaintiff;
– N250, 000.00 daily earnings from the D7H Bulldozer purportedly seized by the Appellant;
– An order for the immediate release of the D7H Bulldozer to the Respondent; and
– the sum of N10, 000,000.00 as general damages.
On 01-02-13, the Respondent filed a Motion on notice wherein he prayed for final judgment to be entered for him due to the Defendant’s failure to file and enter her defence. Before the Respondent could move the motion, the Appellant filed a memorandum of Appearance and Notice of preliminary objection on 22-02-13 supported by a written address,
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challenging the jurisdiction of the lower Court to hear the suit. The Respondent in turn filed a written address in opposition to the preliminary objection.
On 26-02-13 when the case came up for hearing of the preliminary objection, Counsel for both parties were in Court and the suit was adjourned to 02-05-13 for the preliminary objection to be heard along with the substantive suit. However, on that date, to wit: 02-05-13, the lower Court did not sit and the matter was further adjourned to another date. On 06-06-13 when the case next came up for hearing, the lower Court was informed by the Respondents Counsel that the Appellant’s (Defendants) Counsel had telephoned the Court Registrar and informed him that he was unable to arrive in Court. He stated that the Defendants Counsel had not suggested a date for a subsequent return. The Respondent’s (Plaintiffs) Counsel therefore suggested 02-07-13 and the lower Court obliged by granting an adjournment to that date. However, neither the Appellant/Defendant nor his Counsel was served a fresh hearing notice for that date.
On the next date of adjournment, id est 02-07-13, the
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Appellant/Defendant and his Counsel were not in Court and there was nothing before the Court to explain their absences. The Respondents (Plaintiffs) Counsel was therefore allowed to proceed with the hearing of the case. In the course of proceedings, since written addresses had been duly filed, both the Appellant’s Notice of preliminary objection and the Respondents motion on notice asking for Judgment to be entered for the Plaintiff in default of defence were heard and the matter was adjourned for Ruling. On 25-07-13, the lower Court delivered its Ruling wherein it dismissed the preliminary objection raised by the Appellant/Defendant and granted the application for Judgment to be entered in default of defence pursuant to Order 20 of the Benue State High Court (Civil Procedure) Rules, 2007.
Piqued by this turn of events, the Appellant on 23-12-13 filed a motion on notice seeking inter alia for an order that the Default Judgment be set aside. The lower Court heard the application on 10-07-14 and dismissed it, declining to set aside the Default Judgment. Dissatisfied with this decision, the Appellant filed a Notice of Appeal on 10-07-14
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complaining on two grounds.
At the hearing of the Appeal on 04-03-19, S.U. Akoh, Esq., holding the brief of Adah Usman Esq., adopted the Appellant?s Brief of argument filed on 10-04-18 in urging the Court to allow the Appeal. He withdrew issues number 3, 4 and 5 distilled for determination in the Brief of argument and same were duly struck out. In like manner, M.M. Ngor Ngor Esq., learned Counsel for the Respondent, withdrew issue six in the Respondent?s Brief of argument. Same was also struck out. He then proceeded to adopt the Respondent?s Brief of argument filed on 18-05-18 and deemed duly filed on 24-01-19 in urging the Court to dismiss the Appeal and uphold the Judgment of the lower Court.
In his Brief of argument, the Appellant distilled five issues for determination, out of which three were struck out. Therefore, the issues that remain for determination are –
i. Whether the learned trial Judge violated the right to fair hearing of the Appellant and acted without jurisdiction when he proceeded to hear and grant the respondent’s Motion No: OKP/HC/8m/2013 for final Judgment without ascertaining whether the Appellant was aware
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of the adjournment date of 2/7/2013 and/or have been served with hearing notice and proceeded to hold suo motu that the Appellant is aware of the adjournment date while ruling on an application to set aside the Ruling/Judgment of 25/7/2013. (Ground 2)
ii. Whether the learned trial Judge was right when he refuse to consider and or rely on the Appellant’s unchallenged affidavit and then proceeded to make a finding that the Appellant was aware of the 2/7/2013 adjournment date, when he did not properly or at all evaluate the affidavit evidence in favour of the Appellant and in the process refused to set aside his Judgment/Ruling of 25/7/2013. (Ground 1)
The Respondent adopted the issues proposed for determination by the Appellant. However, since I find the issues crafted unduly unwieldy, clumsy and cumbersome, I re-frame them into one sole issue as follows:
(a) Whether the Appellant?s right to fair hearing was breached (Grounds one and two)
Learned Counsel contends that the learned trial Judge violated the Appellant?s right to fair hearing and acted without jurisdiction when he held, while ruling on the application to set aside his
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Ruling/Judgment, that the Appellant was aware of the hearing date of 02-07-13 without affording the parties any opportunity to address him on the point. He argues that on 26-02-13 when the case came up for hearing of the Notice of Preliminary objection filed by the Appellant (as Defendant before the lower Court), it was adjourned to 02-05-13. The Court did not sit on 02-05-13 and the suit was further adjourned off-record to 06-06-13. However, on 06-06-13 when the matter was called up for hearing of the Defendant?s preliminary objection and the substantive suit, the Plaintiff?s Counsel could not make it to Court due to a blockade on the Akwanga Road because of the Ombatse crisis which had led to the killing of several Policemen and operatives of the State Security Service (SSS), as Counsel was coming in from Abuja. He therefore communicated his predicament to the Court through a phone-call to the Court Registrar. The Plaintiff?s Counsel (now Respondents Counsel) therefore suggested 02-07-13 and the suit was adjourned to that date. However, this new date was not communicated to the Defendant (Appellant).
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On that date, both the Respondent?s motion for Judgment and the preliminary objection were heard, and Judgment/Ruling was subsequently delivered on 25-07-13. Irked by this development, the Defendant therefore filed Motion No. OKP/HC/121M/2013 praying that the Judgment be set aside on the ground that the he was not heard before Judgment was delivered, as required by law. The motion was not opposed by the Plaintiff (Respondent) as he did not file a counter affidavit. Yet, on 02-07-14, the learned trial Judge dismissed the application holding that the Appellant was aware of the adjournment for hearing of the suit to 02-07-13.
Learned Counsel submits that the Respondent did not adduce any evidence via a counter affidavit to the Appellant/Applicant?s affidavit in support of his motion to show that, contrary to his assertions, the Appellant was aware of the adjournment of the suit to 02-07-13. The learned trial Judge, while agreeing with his submission that the adjourned date was not communicated to the Applicant, yet proceeded to hold that he was aware of the date and that it would amount to an over-indulgence for Courts to go out of their way to issue or serve
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hearing notices on parties or their Counsel who were in Court or who should be aware of the next date of adjournment. Counsel complains that this finding was made suo motu without affording the parties any opportunity to address on it. He submits that the trial Judge was under a legal duty to give parties the opportunity to react to issues raised by it as he has no jurisdiction to raise an issue suo motu and unilaterally resolve it without hearing the parties. Reliance is placed onOyede V Ohesesi (2005) All FWLR (Pt. 282) 1908; Kankoara vs. Ejezie Anuwai 1339 (2005) ALLFWLR (Pt. 422) 1005 at 1049, D-G, B.
The Court is therefore urged to hold that the Judgment was delivered in breach of the Appellant?s right to fair hearing as contained in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The Court is also urged to hold that the Default Judgment delivered on 25-07-13 was made without jurisdiction and so, to set it aside in the interest of justice. Reliance is placed on SPDC (Nig) Ltd V Niger Optical Services Co. (2007) 7 NWLR (Pt. 872) 420 at 436, C; & Adeyemi V Lan & Baker (Nig) Ltd (2007) 7 NWLR (Pt. 663) 33, 45-50, H-A.
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In addition, learned Counsel submits that the learned trial Judge was wrong to have refused to set aside the Judgment, and instead proceeded to make findings of facts that can only be made after a full trial, and that this has occasioned a grave injustice against the Appellant. He argues that it was the default of the Appellant to appear in Court on 02-07-13 to argue the Notice of preliminary objection, as well as the circumstances pursuant to Order 20 Rule 9 of the Benue State High Court Civil Procedure Rules 2007, that led to the default Judgment. In such a circumstance, the lower Court is imbued with power either inherently or under Order 20 Rule 12 to set it aside on the application of the Defendant showing good cause. Reliance is placed on Ogolo V Ogolo (2006) 2 SC (Pt. 1) 61 at 67 per Onnoghen, JSC. It is therefore submitted that the lower Court had the inherent and coercive powers under Order 20 Rule 12 of the Benue State High Court Rules 2007, when relevant materials are placed before it, to set aside its default Judgment. Reliance is placed on Ogolo V Ogolo (supra) which referred to Williams V Hope Rising Voluntary Funds
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Society (1982) 1-2 SC Reprint 7 wherein some of the relevant materials in an application of this nature where identified to include: the conduct of the applicant from the service of the Writ upon him to the date of Judgment, so as to make his application worthy of a sympathetic consideration.
Counsel contends that upon becoming aware of the default Judgment, the Appellant promptly filed Motion No. OKP/HC/85M/2013 on 09-09-13 and subsequently Motion No: OKP/HC/121M/2013 on 23-12-13 seeking to set aside the default Judgment. The nine paragraph affidavit in support of Motion No. OKP/HC/121M/2013 wherein the Appellant stated that the reason for his failure to appear in Court on 02-07-13 was due to the non-communication of the next adjourned date for hearing, following his absence in Court on the previous date when the Ombatse crises and the consequent blockade on the Abuja-Akwanga road impeded the Defendant/Appellant’s Counsel from getting to the Court traveling from Abuja. This fact was communicated to the Court vide the Registrar on that date on which the case was further adjourned to 02-07-13. However, that the new date was neither communicated to the
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Appellant nor was a hearing notice issued to him to that effect. It is therefore contended that the Appellant gave sufficient explanation for his absence in Court on 02-07-13.
The Respondent neither opposed the Appellant?s application to set aside the Default Judgment nor did he file a counter-affidavit. Thus, the Appellant’s affidavit having not been opposed, is deemed admitted as the truth; and the trial Judge ought to have relied on it to set aside the Default Judgment. Ogoejeofo V Ogoejeofo (2006) 3 NWLR (Pt. 966) 205 is relied on.
Counsel also submits that there was no inordinate and undue delay on the part of the Appellant to make his application unworthy of a sympathetic consideration. There was no evidence before the lower Court that re-opening the case would occasion any embarrassment or injustice to the Respondent. Rather, what was before the Court demanded a full trial.
It is finally submitted that where the appellate Court finds that the lower Court completely abandoned its duty of making findings of fact or where the evidence before it has not been evaluated or properly evaluated, the proper order to make is to remit the matter
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to the trial Court for trial de-novo since the issues of fact which should form the basis of the Court’s decision would not have been settled. Reliance is placed on Anyanwu V Onuigbo (2001) FWLR (Pt. 52)2158, 2170-2171, G-A. The Court is therefore urged to make an order setting aside the Ruling/Judgment of the lower Court.
In response, learned Counsel for the Respondent agrees that Courts are enjoined to afford parties an opportunity to be heard. He however contends that the lower Court did exactly this on 26-02-13 when Counsel for Appellant introduced and sought to move the preliminary objection. The preliminary objection was thereafter adjourned to 02-05-13 because Counsel for the Appellant only served the objection on the Respondent on the date slated for hearing of the suit. On that date the Court did not sit. However, on the next date on which the case came up, to wit: 06-06-13, the lower Court adjourned hearing on the preliminary objection and the substantive suit to 02-07-13 based on the Appellant?s Counsel?s inability to be in Court. However, on 02-07-13, the Appellant was again not in Court and no message was sent to Court to explain
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Counsel’s absence. It is therefore submitted that the lower Court properly considered the Appellant’s preliminary objection before reaching the conclusion it arrived at in its Judgment. Reliance is placed on Newswatch Communication Ltd V Atta (2006) 4 KLR 1487, 1492-1493, B-B.
It is Counsels contention that the conduct of the Appellant as borne out by the Record amounts to ?bluffing the Court?. Magna Maritime Services Ltd and Anor V Oteju & Anor (2005) LPELR-1817(SC) 22-23, E-E & 26 per Niki Tobi, JSC & Edozie, JSC are relied on.
It is further argued that the lower Court, having severally indulged Counsel for the Appellant and yet he persistently absented himself from Court, he cannot be heard to complain of an absence of fair hearing. Thus, Counsel submits that the decision of the lower Court was properly grounded and cannot be faulted. Reliance is placed on Adaka V Ikot Abasi Traditional Rulers Council (1991) 6 NWLR (Pt.198) 484, 491-492 per Niki Tobi, JCA (as he then was); Onah V Okom (2012) All FWLR (Pt. 647) 703,721-722; & Adeyemi V Lan & Baker (Nig) Ltd (2000) 7 NWLR (Pt. 663) 33, 49-50, H-A.
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Furthermore, it is submitted that the Appellant did not at any time file any Motion No: OKP/HC/121M/2013. Instead, he only filed Motion No: OKP/HC/85M/2013 which was subsequently struck out on the 17-12-13 for lack of diligent prosecution. However, Motion No. OKP/HC/121M/2013 upon which the Ruling of the lower Court appealed against was issued, was not filed by the Counsel for the Appellant on record, but by one A.P. Echeobu Esq. of A.P. Echeobu & Co, who purports to be Counsel for the Applicant/Defendant. It is contended that the only Counsel appointed by the Appellant is the Law Firm of Gamzaki Law Chambers, and not the Law Firm of A.P. Echeobu & Co. Thus, that the only Counsel allowed to file any process on behalf of the Appellant is the Law Firm of Gamzaki Chambers being the Law Firm which filed a memorandum of appearance in the suit. It is contended that at no time did the Appellant change Counsel or instruct A.P. Echeobu Esq. to file Motion No: OKP/HC/121M/2013. Also, that Suleiman Usman Esq., who moved the motion before the lower Court, did not state that he instructed Echeobu Esq., to file the motion on behalf of his Chambers or the Appellant.
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Therefore, Suleiman Usman Esq., cannot be heard to file an appeal on a motion which his Law Firm did not file. He concludes that the motion was filed by a meddlesome interloper and no argument or grievance can emanate from such. In respect of the absence of a counter affidavit challenging the reliefs sought in the motion, Counsel submits that a party’s case succeeds on its strength and not on the weakness of the opposing party.
Findings –
Where a Court, in the presence of Counsel to both sides, adjourns a case to a certain date for hearing, but for some reason it is unable to sit on that date, it is important and mandatory that notices indicating the new date for the hearing of the case be issued and served on the parties or their Counsel. This ensures not only that they become aware of the new date, but that there is a record of the issuance of such notice and the fact that it was served on Counsel. Without such record, it cannot be validly contended that the party who is not in Court was aware that the matter was coming up that day. To say that the Appellant did not deserve any hearing notice as her Counsel was present on 02-05-13 (when the Court
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did not sit) but the matter was adjourned to 06-06-13 for hearing of the motion for Judgment, would have been valid if the hearing took place on 06-06-13. Where proceedings in a case are adjourned by a Court in the presence of a party or his Counsel on a certain date, the absence of the party or his Counsel on that stated date cannot prevent the proceedings from going on. Such a party cannot validly complain that he or his Counsel was not served a notice of that day’s hearing. Such a complaint is not available to such a party as he has no right to further notice of hearing on that date.
?In the present case, the proceedings in the case did not take place on the 02-05-13, the date slated for hearing of the preliminary objection filed by the Appellant along with the substantive suit, in the presence of both Counsel. As aforesaid, on that date, the Court did not sit and the suit was further adjourned off-record to 06-06-13. On 06-06-13, the Appellant could not get to Court for certain reasons which were brought to the notice of the Court by no other person than Counsel for the Respondent himself. The Court therefore further adjourned the suit to 02-07-13.
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Thus, since this adjournment was made in the absence of the Appellant?s Counsel, he was entitled to be served with notice indicating the next date of hearing.
As aforesaid, where a party and his Counsel are absent on a certain date the Court, in adjourning the case to another date for hearing, has a duty to order a fresh hearing notice to be issued and served on the absent party or his Counsel indicating the next date of hearing of the case. So, the finding of the learned trial Judge that it is an over indulgence for a party to be served hearing notice in these circumstances, is not valid. While I am also of the school of thought which believes that it is desirable that parties should be proactive in following up on the progression of their cases in Court, as this will help in the diligent prosecution and defence of their cases, the Court must also do what the Law requires it to do. The failure of a party to go to the Registry of the Court to find out or get the new date for the hearing of his case, does not relieve the Court of its responsibility to issue and serve him or his Counsel hearing notice or justify the failure of the Court to do so. The
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Record of Appeal shows clearly that the Appellant was not in Court on the previous date, id est 06-06-13, for reasons which he explained and which were duly captured on record, (page 70 of the Record of Appeal), and yet, no fresh hearing notice was issued and served on him when the matter was further adjourned. It is therefore indisputable from the Record of this appeal that after 06-06-13, the Defendant or its Counsel did not receive notice of the new date for hearing of its pending motion raising a preliminary objection to the hearing of the suit filed by the Defendant, as well as the Plaintiff?s motion for Judgment in default of defence.
The question that arises at this juncture is whether the Appellant was deprived of its right to fair hearing since it was not availed an opportunity to be in Court to argue its preliminary objection, and to be heard on the motion for Judgment to be entered in default of defence. Let me state straightaway that it is trite, as has been held in seemingly endless judicial authorities, that any proceeding in a case which holds without the parties or one of the parties having been duly served with a hearing notice of
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the date for hearing of the matter, does violence to the principles of fair hearing as enshrined in the 1999 Constitution, and such proceedings held or taken in the absence of a party who was not put on notice of the date of such proceedings, amounts to a nullity. See the decision of the Supreme Court in Achuzia V Ogbomah (2016) LPELR-40050 (SC) 14 per Galadima, JSC:
“It is trite that failure to serve a party in a case with a hearing notice indicating clearly when and where the Court is to sit is a fundamental irregularity which easily vitiate the proceedings, and make it a nullity, however well conducted and decided. The effect is extrinsic to the adjudication. See the English decision in CRAIG v. RANSEEN (1943) k. b 25 at pp 262-263 cited and relied upon by this Court in SKEN CONSULT (NIG) LTD & ANOR v. GODWIN SEKONDY UKEY (1981) 1 SC. pt at p. 15.”
In the same Judgment, Kekere-Ekun, JSC stated thus:
“No matter how tardy a party might be in the prosecution or defense of his case before the Court, he has a constitutional right guaranteed by Section 36 (1) of the Constitution to be notified of the dates when the cause or matter will be heard.” ?
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In his contribution to the Judgment of the Court, Peter-Odili, JSC at page 22-23 of the same judgment also opined thus:
?The requirement of fair hearing implies that each party to a dispute before a Court or Tribunal must be accorded adequate opportunity to state his own side of the case under the principle of “audi alteram partem”, an immutable principle and the other leg of natural justice. This position was well expatiated in the case of Ariayefah Nwaosu V Ibejimba Nwaosu (2000) 4 NWLR (Pt. 653) 351 at 359 where it was stated as in this case in hand that the Court cannot without issuing and serving hearing notice on the party affected, proceed to abridge the time and hear evidence in the absence of the party to be affected. See also Obimonure v. Erinosho & Anor (1966) All NLR 245 at 247. The import of service of process on the defendant is well captured in Skenconsult (Nig.) Ltd & Anor v. Sekondy Ukey (1981) 7 SC 6 wherein this Court held thus:-
“The service of process on the Defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or any counsel must be those
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fundamental conditions precedent required before the Court can have competence and jurisdiction. This very well accords with the principles of natural justice.”
It is therefore my considered view that that when the lower Court became aware that following the absence of Counsel for the Appellant in Court on 06-06-13, which absence was explained and upon which the suit was adjourned, the Defendant should have been notified of the subsequent date of adjournment. The failure to serve notice of the subsequent date of hearing on the Appellant means that the requirement of fair hearing was not observed and the resultant decision is a nullity, cannot be salvaged and cannot be allowed to stand.
A Court has jurisdiction to hear a case when among other things, its jurisdiction is properly invoked by proper service of the Court process on the defendant. Where the defendant has not been served in accordance with what the substantive and/or procedural law prescribes, the jurisdiction of the Court is not properly invoked for it to entertain the case. Thus, the issue of service is so fundamental that it goes straight to the jurisdiction of the Court. See: Esabunor
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V Faweya (2019) LPELR-46961(SC) 23 per Rhodes-Vivour, JSC; Ogah V Emenike & Ors (2019) LPELR-46644(CA) 12-13 per Yahaya, JCA; Adeyinka & Ors V Agbakwuru & Ors (2019) LPELR-46824(CA) 13-16 per Tukur, JCA; Nigerian Navy V Ironbar (2017) LPELR-43528(CA) 24-25 per Saulawa, JCA; GTB V NDIC (2018) LPELR-44381(CA) 9-19 per Ogakwu, JCA; Compact Manifold & Energy Services Ltd V Pazan Services (Nig) Ltd (2017) LPELR-41913(CA) 21 per Nimpar, JCA; Obiozor V Nnamua (2014) LPELR-23041(CA) 31 per Agim, JCA; Imminent Nigeria Company V. Prudential Co-Operative Micro Finance Bank (Nigeria) Ltd (2014) LPELR-22700(CA) 33-34; Miden System Ltd V Effiong (2011) 2 NWLR (Pt. 123) 254 at 366; Wema Bank Nigeria Ltd & Ors V Odulaja & Ors (2000) FWLR (Pt. 17) 138, 142-143; ACB Plc V Losada Nig & Anor (1995) 7 SCNJ 158 at 167.
Thus, the right to a fair hearing is sacred, sacrosanct and fundamental as it is entrenched in the grundnorm, id est Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended). At its core, the principle of fair hearing entails giving both sides to a dispute or the matter before a Court of law the opportunity
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to be heard, before a decision that would bind them is reached. It is a constitutional right; and grounds the validity of any legal proceedings. Fair hearing implies that a party to a suit has been accorded a reasonable opportunity of being heard in the manner prescribed under the law and that every process filed by each party is given due consideration.
The paramount question here remains whether in fact the Appellant was served with a hearing notice against the further adjourned date of 02-07-13 for the hearing of the motion on notice for Judgment. Doubtless, the Appellant was not served a hearing notice. The Respondent has not argued otherwise. Instead, his contention is that the Appellant should have monitored what had transpired in Court after she was/had been served with a hearing notice against 06-06-13 when the matter was further adjourned to 02-07-13 in its absence. I am not enthused by this contention.
In Achuzia V Ogbomah (2017) LPELR (40050) 1 at 28, the apex Court held as follows:
?The law is trite that a Court should always put a party on notice of date of its adjournment of any matter by sending hearing notice to him/it
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once he was not in Court or represented on a given previous date.
So there remained a duty on the lower Court to serve a hearing notice on the Appellant against the hearing date of 02-07-13 since it was not in Court on 06-06-13. A hearing notice would be required where a Court adjourns a case beyond a date when the litigants have notice of the hearing of the case. Thus, except a party or his Counsel is present in Court and therefore is aware of the adjourned date, the Court has a duty to notify the parties of any subsequent adjournment. Where service of a fresh hearing notice is required, failure to serve such notice is a fundamental vice and the person affected by any order made, but not served with the process, is entitled ex debito justitiae to have the order set aside as a nullity. This is because due service of a fresh hearing notice in the circumstance is a condition sine qua non to the hearing of the suit. See: Madukolu V Nkemdilim (1962) 2 SC NLR 31; Mbadinuju V Ezuka (1994) 8 NWLR (Pt. 364) 535 at 566; Skenconsult (Nig) Ltd V Ukey (1981) 1 SC 6; & Scott-Emuakpor V Ukavbe (1975) NSCC 435. A hearing, in which a party is not served with a fresh
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hearing notice in the required circumstance, and in which his processes are not considered with due pronouncement made thereon by the trial Court one way or the other, does not accord with fair hearing.
Thus, at the risk of being tedious, it is emphasized that when a party is not in Court and an adjournment is made, the adjourned date must be communicated to the absent party usually by means of a hearing notice, as the Court will have no jurisdiction to proceed in his absence. It cannot be re-stated enough that trial Judges must ensure justice and fairness in proceedings before them. It is a cardinal principle of justice that a party is given an opportunity to be heard before an adverse order is made against him. Anything short of that would amount to a parody of justice. The Appellant herein was denied fair hearing when his motion was dismissed and default Judgment entered against him on a date in which there was no proof of service before the lower Court that he or his Counsel had been served hearing notice. Based on the facts contained in the uncontested application to set aside the Judgment and the uncontroverted affidavit before it, the lower Court
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should have properly exercised its power to grant the application and to set aside its Judgment, which was issued in the absence of the Appellant and without due notification of the date of hearing to him.
Furthermore, the lower Court was equally duty bound to ascertain if a hearing notice was served on the Appellant before proceeding any further with the hearing of the matter on 02-07-13. From the Records, it is not contested that hearing notice against the fixture of 02-07-13 was neither issued nor served on the Appellant. It is the constitutional right of a party to be notified of the fixture of a matter fixed for hearing. It is only such notification by the issuance and service of a hearing notice that will afford the party the opportunity of a hearing.
It is incumbent on a trial Court to ensure that the basic minimum constitutional requirement of notifying the Appellant by service of hearing notice on it was complied with. Unfortunately, the lower Court held onto the erroneous view that serving the Appellant a hearing notice in the circumstances of the case would amount to an ?over-indulgence?. A hearing notice has been defined as a
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process by which a party to proceedings is notified of the date the case has been fixed in Court, where he is not otherwise aware of such date. Therefore, service of hearing notice is imperative where a party is not present in Court or duly represented. See: Folorunsho v Shaloub (1994) 3 NWLR (Pt. 333) 413 at 430; So Mai Sonka Co. (Nig.) Ltd V Adzege (2001) 9 NWLR (Pt. 718) 312 and Madueke V Madueke (2011) LPELR (4532) 1 at 22-23.
Equally, the party affected is entitled to have the same set aside ex debito justitiae. This is because the whole proceedings being a nullity, one cannot impose something on nothing: Macfoy V UAC (1962) AC 152 at 160.
The service of hearing notice is a rudimentary and fundamental procedure to adjudication. Any proceedings conducted where service had not been effected on a party who is entitled to a hearing, amounts to a violation of the right of fair hearing. As stated by Nnaemeka-Agu, JSC of blessed memory in Kotoye V CBN (1989) 1 NWLR (Pt. 98) 419 at 448, the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is
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whether a party entitled to be heard, had in fact been given the opportunity of a hearing. Thus, once an appellate Court comes to the conclusion that the party was entitled to be heard before a decision was reached, but was not given the opportunity of a hearing, the decision reached is bound to be set aside. The Appellant was entitled to be heard before a decision was reached on the preliminary objection and motion for Judgment. It was not given the opportunity to be heard as a hearing notice was not served on it for the adjourned date of 02-07-13. The fact that the Appellant did not attend Court on 06-06-13 for which date it was duly notified, did not obviate the basic minimum constitutional imperative that it still be served a hearing notice on the subsequent date so as to be given the opportunity of a hearing on the adjourned date of 02-07-13. The essence of service of hearing notice on a party is to intimate him of the hearing date which is very fundamental to the administration of justice since it confers on the trial Court the jurisdiction to entertain the matter. See: First Bank V Udeozo (2017) LPELR (43263) 1 at 12-15; Akinniran V Ade (2017) LPELR
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(42175) 1 at 11-19; Ogundoyin V Adeyemi (2001) LPELR (2335) 1 (SC); & Compagnie Generale de Geophysique Nig Ltd V Aminu (2015) LPELR (24463) 1 at 19-20.
The upshot of all the foregoing is that the failure to serve a hearing notice on the Appellant against the hearing date of 02-07-13 is a fundamental vice which occasioned a breach of the Appellant?s right to fair hearing. It went to the root of the case and rendered the proceedings a nullity. Therefore, given the circumstances, the decision arrived at by the lower Court cannot be allowed to stand. An appellate Court must interfere in order to ensure that justice is done. The failure to serve a hearing notice resulted in a denial of fair hearing which is fatal to the decision of the Court. In Salu V Egeibon (1994) 6 NWLR (Pt. 348) 23 at 44, Wali, JSC stated:
It has also to be remembered that denial of fair hearing was a breach of one of the rules of natural justice, that is, the requirement that a party must be given a fair hearing. The consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void. See Adigun v.
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Attorney-General of Oyo State (1987) 1 NWLR (PT. 53) 678. If a principle of natural justice is violated, it does not matter whether if the proper thing has been done, the decision would have been the same; the proceeding will be null and void. In other words, 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 in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision. The result is that the decision of the trial Court and Court below confirming that decision must be set aside. The case must be heard de novo.”
On a final note, I fail to see how the Defendant’s failure to inform the Court about his change of Counsel (as canvassed by the Respondent herein), can justify the non-issuance and service of a hearing notice of the new date for hearing of the suit on 02-07-13 on the Appellant. Indeed, the lower Court in its Judgment of 25-07-13 admitted and sought to justify the non- service of a hearing notice on the Appellant, contending that it would have amounted to an over-indulgence to have served him
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with a hearing notice even while acknowledging that Counsel was not in Court on the previous date of hearing. Thus, based on all the above findings, I resolve the sole issue for determination in favour of the Appellant.
In the result, I find the Appeal meritorious. It succeeds and is allowed. Consequently, the Ruling of the High Court of Justice, Benue State Holden at Makurdi delivered on 02-07-14, Coram Igoh, J. , is set aside; and the substantive Suit no. OKP/HC/1/2013 is hereby remitted to the Chief Judge of Benue State to be assigned for hearing de novo by another Judge of the High Court, other than Igoh, J. The Appellant is awarded the sum Of N100,000.00 as the costs Of this
Appeal against the Respondent.
ONYEKACHI AJA OTISI, J.C.A.: I had the privilege of reading before now the draft copy of the Judgment just delivered by my learned Brother, Jummai Hannatu Sankey, JCA, allowing this appeal. I agree with, and adopt as mine, the comprehensive resolution of the issues raised therein. I will only make few comments in support.
A hearing can only be said to be fair if each party to the proceedings is given the
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opportunity to be heard or to present his case or call evidence. In a long line of judicial pronouncements, it has been established that the right to fair hearing is substantially a question of opportunity of being heard. The right lies in the procedure followed in the determination of a case and not in the correctness of the decision arrived in a case;APC v. Nduul & Ors (2017) LPELR-42415 (SC); Victino Fixed Odds Ltd v. ojo (2010) LPELR-3462(SC); CITEC Int’l Estate Ltd & Ors v. Francis Ors (2014) LPELR-22314 (SC); Ogundoyin Ors v. Adeyemi (2001) LPELR-2335(SC); FBN Plc v. T.S.A. Industries Ltd (2010) LPELR-1283(SC).
Courts are required under the principle of fair hearing to ensure that requisite hearing notices of dates of hearing of cases before them are not only issued by their Registries, but are also served on the parties before embarking on the conduct of proceedings in the cases. Except the Court is satisfied that the parties are aware of the dates fixed pr set down for hearing of their cases before it, hearing notices are required to be served on them to provide them with opportunity to present their own side of the case, in accordance
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with the attributes of the principle of fair hearing; Gitto Costruzioni Generali Nigeria Ltd Anor v. Etuk & (2013) LPELR-20817(CA), FBN Plc v. T.S.A Industries Ltd (2015) LPELR-25860(CA). The failure to serve a hearing notice for the proceedings on 2/7/2013 on the Appellant amounted to a denial of his right to fair hearing. The Nigeria Union of Teachers, Taraba state ors v. Habu ors (2018), Achuzia v. Ogbomah (2016) LPELR-40050(SC).
I fully endorse the opinion of my Learned Brother expressed in the Lead Judgment that parties ought to be proactive in following up with the progression of their cases in Court. A serious litigant who is committed to the prosecution or defence of his case ought to diligently follow up with the respective Court Registry to obtain information on any adjourned dates for the matter, if for any reason he was unable to appear or be represented at the last Court session. Notwithstanding, the Court still has the duty to ensure that each party is given due notification of hearing dates and is served of processes whenever required. Thereby, the demands of fair hearing would have been met.
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The decision of the lower Court delivered on 25/7/2013, anchored on the proceedings of 2/7/2013, for which the Appellant had no notification, stands null and void; Ovunwo Anor v. Woko & Ors (2011) LPELR-2841(SC); MFA Anor v. Inongha (2014) LPELR-22010(SC) Nwabueze v. The People of Lagos State (2018) LPELR-44113(SC). Therefore, I agree with the Lead Judgment that the ruling of the lower Court delivered on 2/7/2014 ought to be set aside.
For the more detailed reasoning contained in the Lead Judgment, I also allow the appeal and abide by the orders made therein, including the order as to costs.
JOSEPH EYO EKANEM, J.C.A.: I had the privilege of reading before now the lead judgment of my learned brother, Sankey, JCA. I agree with the reasoning and conclusion therein. For the purpose of emphasis, I will only add a word or two of mine.
?Section 36(1) of the Constitution of the of the Federal Republic of Nigeria, 1999 (as amended) guarantees the right to fair hearing of a person in the determination of his civil rights and obligation. A hearing is said to be fair when, inter alia, the parties to the dispute are given an opportunity of a hearing. If one of the parties
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is refused or denied a hearing or an opportunity of being heard, the proceedings of the Court will be set aside. See Akpamgbo – Okadigbo v Chidi (No 1) (2015) 10 NWLR (Pt. 1466) 124, 198.
For the purpose of affording a party an opportunity to be heard, where the original hearing date is aborted for any unforeseen reason, it is incumbent on the Court to order fresh hearing notices on the parties or fresh hearing notice on the absent party. Failure to do so Will occasion a miscarriage of justice and violate the right to fair hearing. See International Bank Plc v Onwuka (2009) 8 NWLR (Pt. 1144) 462, 472.
In the instant matter, on 6/6/2013 when the case came up before the lower Court, the matter was adjourned to 2/7/2013 in the absence of appellant and its counsel. Infact, it was respondent’s counsel who informed the lower Court that the appellant had telephoned the Registrar of that Court and informed him that he was unable to arrive in court. In that circumstance, the lower Court ought to have issued a hearing notice to the appellant, notifying it that the case had been adjourned to 2/7/2013. The lower Court did not do So. On 2/7/2013, in the
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absence of appellant and its counsel the lower Court allowed the respondent to proceed with the hearing of the case. The Court took the appellant’s preliminary objection and the respondent’s motion on notice for judgment to be entered in default of defence. On 25/7/2013, the Court, in its ruling, dismissed the preliminary objection of the appellant and granted the application for judgment in default of defence.
Since the lower Court had not ordered the issuance of hearing notice on the appellant on 6/6/2013 against the hearing of 2/7/2013, but proceeded to hear the matter on 2/7/2013 in the absence of appellant and its counsel, the appellant was denied the opportunity of being heard contrary to Section 36(1) of the Constitution of Nigeria, 1999 (as amended). The lower Court therefore should have set aside the decision that resulted from that breach ex debito justitiae upon the application of the appellant. See Alabi v Lawal (2004) 2 NWLR (pt. 856) 134 and Dingyadi v I.N.E.C (2010) 18 NWLR (Pt. 1224) 1, 54 and 91.
?It is on account of the foregoing that I agree that the appeal has merit. I therefore also allow the same and abide by the consequential orders
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made in the lead judgment of my learned brother.
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Appearances:
S.U. Akoh, Esq. holding the brief of Adah Usman, Esq.
For Appellant(s)
M.M. Ngor Ngor, Esq.For Respondent(s)
Appearances
S.U. Akoh, Esq. holding the brief of Adah Usman, Esq.For Appellant
AND
M.M. Ngor Ngor, Esq.For Respondent
