STERLING BANK PLC V. S. W. EKWERE & ANOR
(2012)LCN/5509(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of June, 2012
CA/C/154/2010
RATIO
FAIR HEARING: IMPORTANCE OF FAIR HEARING
Fair hearing within the meaning of S. 36 (1) of 1999 constitution means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties. It requires the observance of the twin pillars of the Rules of natural justice namely audi alteram partem and nemo judex in causa sua. Eshenake v. Gbinijie (2006) 1 NWIR pt 961 pg 228.
In the instant case, the trial court did not afford the Appellant fair hearing in that he was not issued with a hearing notice notifying him of the date, the hearing was adjourned to.
The right to fair hearing is a constitutional right enshrined in S. 36 of the 1999 constitution. The right cannot be waived or statutorily taken away. Also, trial courts are enjoined to ensure that hearing notices are issued on parties before embarking on the trial of any matter before then. NACB Ltd vs. Obadiah (2004) 4 NWLR pt 865 pg 326, Chinbu vs. Tonimas (Nig) Ltd. (1999) 5 NWLR pt 595 pg 115, Bamgboye v. Unilorin (1999) 10 NWLR pt 622 pg 290, Awonuji vs. The Registered Trustee of the resicrucian order, Amorc (Nig) (2000) 6 SC pt 1 pg 105, Araka v. Ejeagwu (2001) 5 WRN pg 1. PER UZO I. NDUKWE-ANYANWU, J.C.A.
FAIR HEARING: EFFECT OF A BREACH OF FAIR HEARING ON THE WHOLE PROCEEDINGS
It is trite law that once there is a breach of fair hearing, the whole proceedings in the course of which the breach occurred and the decision arrived at by the court becomes a nullity. ANPP v. INEC (2004) 7 NWLR pt 971 pt 16, All Peoples Party vs. Ogunsola (2002) 5 NWLR pt 761 pg 484, BON Ltd. v. Adegoke (2006) 10 NWLR pt 983 pg 339. PER UZO I. NDUKWE-ANYANWU, J.C.A.
JUSTICES
UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
STERLING BANK PLC. Appellant(s)
AND
S. W. EKWERE
EKET LOCAL GOVERNMENT COUNCIL Respondent(s)
UZO I. NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State sitting in Eket delivered on 6th July, 2009 in suit No HEK/MSC/29/09.
These are the facts of this suit as stated by the Appellant in his Appellant’s brief.
Appellant was the garnishee in suit HEK/MSC.28/09, while 1st Respondent was the judgment creditor and 2nd respondent the judgment debtor.
1st respondent in execution of his judgment against the 2nd respondent for the payment of N1, 663,712.90 obtained a garnishee order nisi dated 11th May 2009 against the appellant after which the matter was adjourned to 15th June, 2009 for hearing (p.5).
On the returned date of 15th June, 2009, the court found that the suit was not ripe for hearing as the appellant was only served on 12th June, 2009 (p.12). Appellant was not in court but was still within time allowed by the rules to appear in court and show cause.
Consequently, the court could not proceed under the circumstance and adjourned the matter to 6th July, 2009 for hearing. No hearing notice was ordered, issued or served on the appellant for this fresh hearing date (p .12)
On 30th June, 2009, appellant however filed an affidavit to show cause, principally that it does not have the amount sought to be attached (pp.6-7). On 6th July, 2009, appellant without knowledge of the new hearing date could not be in court and on the same day, the court made the garnishee order nisi absolute against the appellant ordering appellant to pay the sum of N1, 663,717.80 to the 1st respondent. Aggrieved, the appellant appealed to this.
The appellant filed his notice and 4 grounds of appeal on 28th July, 2009. An amended notice and 3 grounds of Appeal was filed on 8th March, 2011 and deemed properly filed and served on 6th June, 2011. Also filed is the Appellant’s brief on 8th March, 2011 but deemed properly filed and served on 6th June, 2011.
In it, the appellant articulated 2 issues for determination as follows:
Whether the failure to serve the Appellant a hearing notice before the order absolute did not violate appellant’s right to fair hearing and render the entire proceeding a nullity.
Whether appellant filed affidavit in response to the order nisi and if so whether the said affidavit dated 30th June, 2009 did not show cause in the garnishee proceeding.
The Respondents filed no briefs. By a motion on notice filed on 4th October, 2011, the Appellant/Applicant sought for an order of court to hear this Appeal on the appellant’s brief alone. This order was granted on 23rd April, 2012. On the 13th June, 2012 this Appeal was heard on the Appellant’s brief alone.
There are 2 issues articulated by the Appellant. The first is on jurisdiction of the lower court.
ISSUE 1
The Appellant’s counsel submitted that the Appellant was denied fair hearing in the court below. The Appellant was not served with the hearing notice and, therefore, did not participate in the hearing. Counsel submitted that the duty to ensure such notification in appropriate cases is always on the court and there must be a finding to that effect before a court can proceed. Rex vs. Inang (2005) FWLR pt 170 to pg 1469 ,Padawa v. Jatau (2003) FWLR pt 164 pg 228, Association of Nig., Co-operative Exporters Ltd v. cooperative Bank Plc. (2004) All FWLR pt 209 pg 1039.
In the instant case, as submitted by Appellant’s learned counsel, the Court did not discharge that burden before proceeding to make the garnishee order absolute against the Appellant. Counsel referred the court to S. 83 (2) of the Sheriffs and civil Process Act which provides as follows:
At least fourteen days before the day of hearing, a copy of the order nisi shall be served upon the garnishee and on the judgment debtor.
Counsel submitted that the order nisi was dated 11th May, 2009 and was adjourned to 1st June, 2009 for the return date for hearing. The order Nisi dated 11th May, 2009 was served on the Appellant on 12th May, 2009, which made the suit premature for hearing. No other date was communicated to the appellant and on 6th July, 2009, the order Nisi was made absolute without the Appellant being present in court.
On the 6th July, 2009 when the order absolute was made, the Appellant was absent not having been served with the hearing notice. The Appellant, therefore, had no opportunity to bring to the court’s attention the fact that he had filed an affidavit to show cause on the 30th June, 2009. The proceedings of 6th July, 2009 was, therefore, conducted behind the appellant thereby violating his right of fair hearing as enshrined in S. 36 (1) 1999 Constitution.
Counsel, therefore, urged the court to hold that the Appellant’s right of fair hearing has been violated and the order absolute a nullity.
Fair hearing within the meaning of S. 36 (1) of 1999 constitution means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties. It requires the observance of the twin pillars of the Rules of natural justice namely audi alteram partem and nemo judex in causa sua. Eshenake v. Gbinijie (2006) 1 NWIR pt 961 pg 228.
In the instant case, the trial court did not afford the Appellant fair hearing in that he was not issued with a hearing notice notifying him of the date, the hearing was adjourned to.
The right to fair hearing is a constitutional right enshrined in S. 36 of the 1999 constitution. The right cannot be waived or statutorily taken away. Also, trial courts are enjoined to ensure that hearing notices are issued on parties before embarking on the trial of any matter before then. NACB Ltd vs. Obadiah (2004) 4 NWLR pt 865 pg 326, Chinbu vs. Tonimas (Nig) Ltd. (1999) 5 NWLR pt 595 pg 115, Bamgboye v. Unilorin (1999) 10 NWLR pt 622 pg 290, Awonuji vs. The Registered Trustee of the resicrucian order, Amorc (Nig) (2000) 6 SC pt 1 pg 105, Araka v. Ejeagwu (2001) 5 WRN pg 1.
It is trite law that once there is a breach of fair hearing, the whole proceedings in the course of which the breach occurred and the decision arrived at by the court becomes a nullity. ANPP v. INEC (2004) 7 NWLR pt 971 pt 16, All Peoples Party vs. Ogunsola (2002) 5 NWLR pt 761 pg 484, BON Ltd. v. Adegoke (2006) 10 NWLR pt 983 pg 339.
In the instant case, the principle audi alteram partem was breached in that the Appellant was not served with a Hearing Notice to inform him of the next adjourned date. This failure had breached the Appellant’s right of fair hearing. All the proceedings of the trial court on 6th July, 2009 without the Appellant is a nullity.
This issue is there resolved on behalf of the Appellant.
The 2nd issue is no longer viable as it would become academic as the whole trial is a nullity.
The Appeal is, therefore, meritorious and allowed. This suit is to be remitted to the Chief Judge, Cross River State to be tried by another Judge de novo.
I make no order as to costs.
JOSEPH TINE TUR, J.C.A.: I had the privilege of reading in advance the judgment of my Lord, Uzo I. Ndukwe-Anyanwu, JCA and I concur.
In my humble opinion, on the 15th June, 2009 when the appellant was not in court and the garnishee proceedings were adjourned to 6th July, 2009, fresh hearing notice should have been issued and served on the appellant. When the proceedings came up on 6th July, 2009, the learned Judge should have ascertained from the clerk of court and the returns filed by the bailiff whether the appellant was actually served fresh hearing notice against that adjourned date. This is more so that on 30th June, 2009 the Appellant filed an affidavit to show cause why an order absolute ought not to be made in favour of the Respondents. This was obviously in the file. Order 30 rules 1-3 of the High Court of Cross River State (Civil Procedure) Rules, 2008 reads as follows:
“1. When a cause on the weekly cause list has been called for hearing and neither party appears, the Judge shall, unless he sees good reason to the contrary, strike the cause out.
2. When a cause is called for hearing, if the claimant appears and the defendant does not appear, the claimant shall proceed to prove his claim, so far as the burden of proof lies upon him; but if he cannot so proceed, the Judge shall, unless he sees good reason to the contrary, strike the cause out.
3. When the cause is called for hearing, if the defendant appears and the claimant does not appear, the defendant, if he has no counter-claim, shall be entitled to judgment dismissing the action, but if he has a counter claim, then he may prove such counter claim so far as the burden of proof lies upon him.”
A composite reading of the provisions of order 30 rule 1-3 of the Rules supra will reveal that the governing phrase is “when a cause is called for hearing.” Good reasons must appear why all the parties are not in court, or only one of the parties is in court, etc, before a learned Judge may strike out the cause or allow the party that appeared to proceed with the hearing. Good reason for striking out the cause or proceeding to hearing in the absence of one party may be ascertained from the clerk of court, the bailiff, the records in the file, the party or counsel that appeared, etc. For instance there may be no affidavit of service of hearing notice or one of the parties or counsel might have written a letter demanding an adjournment or a stand down, etc. A diligent judge would certainly make inquiries to ascertain the facts before embarking on striking out the cause or proceeding with hearing in the absence of a party. If no such good reasons are forth coming order 30 rule 5 of the Rules supra provides that:
5. The Judge may, if he thinks it expedient in the interest of justice, postpone or adjourn a trial for such time and upon such terms, if any, as he shall deem fit and in any event, not more than fourteen days.”
Striking out a cause from the cause list or allowing one party to proceed in the absence of the other without ascertaining whether there exist good reasons may not always be in the interest of justice. The matter may be relisted or an application may be brought to set aside the proceedings etc. This usually delays speedy trial and escalates the cost of litigation.
The High Court of Cross River State (Civil Procedure) Rules, 2008 contains generally, established and authoritative standards or principles mandating or guiding the conduct of proceedings in civil causes and matters by parties/Counsel and the adjudicating judge for the attainment of justice. Order 1 rule (2) and (3) of the Rules supra provides as follows:
1(1) These Rules shall apply to all proceedings including all part-heard causes and matters in respect of steps to be further taken in such action.
(2) The application shall be directed towards the achievement of a just, efficient and speedy dispensation of justice.
(3) Where a matter arises in respect of which no adequate provisions are made in the Rules, the Court shall adopt such procedure as will in its view do substantial justice between the parties concerned.”
No substantial justice was done in this garnishee proceeding as fair hearing, enshrined under Section 36(1) of the constitution of the Federal Republic of Nigeria, 1999 as altered, was breached. I venture to hold that there has been no just, efficient and speedy dispensation of justice. The garnishee proceedings have to be remitted to the lower Court to be determined by another judge thereby escalating the cost and time of achieving justice which is what the Rules seek to guard against. For these reasons and the fuller reasons given by my Lord, I also allow this appeal and abide by the orders made by my Lord.
ISAIAH OLUFEMI AKEJU: My learned brother, Uzo I. Ndukwe-Anyanwu, JCA gave me the opportunity of reading the draft of the judgment just delivered in this appeal. I am in full agreement with the conclusion that the appeal is meritorious as well as the reasons for this conclusion. I allow the appeal and abide by the consequential order remitting the suit for trial de novo. I make no order as to costs.
Appearances
EKPEDEME NELSON-IYOHO, ESQ.For Appellant
AND
For Respondent
