THE GOVERNOR OF IMO STATE & ORS v. E.F. NETWORK NIGERIA LIMITED & ANOR (2019)

THE GOVERNOR OF IMO STATE & ORS v. E.F. NETWORK NIGERIA LIMITED & ANOR

(2019) LCN/4620(SC)

In the Supreme Court of Nigeria

Thursday, March 7, 2019


Case Number: SC.1001/2016

 

JUSTICES:

OLABODE RHODES-VIVOUR

AMINA ADAMU AUGIE

OLUKAYODE ARIWOOLA

JOHN INYANG OKORO

CHIMA CENTUS NWEZE

 

APPELLANTS

1. THE GOVERNOR OF IMO STATE2. THE ATTORNEY GENERAL OF IMO STATE3. ENVIRONMENTAL TRANSFORMATION COMMITTEE (Carrying on Under the name Imo Entraco)4. THE MINISTRY OF PETROLEUM AND ENVIRONMENT, IMO STATE

 

RESPONDENTS

1. E.F. NETWORK (NIG) LTD2. MR. GIDEON EGBUCHULAM

 

MODE OF ARGUING A PRELIMINARY OBJECTION

“Ordinarily, the accepted practice is that the respondent should argue his preliminary objection in his brief of argument to which the appellant will reply. That procedure adopted by the respondents obviates the need to separately file a Notice of Preliminary Objection. The arguments on the Preliminary Objection in the respondents’ brief of argument ordinarily supersedes the Notice earlier given. See; Lawan Abdullahi Buba Wassah & Ors Vs Tukshahe Kara & Ors (2014) LPELR -Â 24212 (2014) 12 SCM 258.”

 

HOW TO RAISE A NEW POINT ON APPEAL

“Appeal does not lies on that point to this Court not having been taken by the Court below. It amounts to new point and there are procedure by which an appellant can raise a new point which was not taken before the Court below in this Court. Those steps must be taken before raising the new point in this Court. See; Nigeria Engineering Works Ltd. Vs. Denap Ltd. & Anor (2001) 12 SC (Pt.11) 1361 (2001) NWLR (Pt.746) 726; Raphael Agu Vs. Christian O. Ikewibe (1991) 3 NWLR (Pt.180) 385″ 

 

 

PRINCIPLE OF FAIR HEARING

“Generally, a hearing cannot be said to be fair if any of the parties in a case is refused a hearing or denied the opportunity to be heard, present his case or call his witnesses. However, in Major Bello M. Magaji vs. The Nigerian Army (2008) 8 NWLR (Pt.1089) 338; (2008) 34 NSCQR (Pt.1) 108; 5 SCM 156, (2008) LPELR – 1814, the Court opined that it has become a fashion for litigants to resort to their right to fair hearing on appeal, as if it is a magic wand to cure all their inadequacies at the trial Court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation, in the interest of fair play and justice. The Court had held further as follows: “Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is principle which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.” Per Tobi, JSC. –

 

 

RIGHT TO FAIR HEARING

“All parties in a matter are entitled to fair hearing. In other words, both the plaintiffs and the defendants are entitled to be treated fairly. Both are entitled to justice and this must be seen to be done.”

 

DUTY OF THE PARTY CLAIMIMNG THAT HIS RIGHT TO FAIR HEARING WAS BREACHED

“But fair hearing is not an expression of mere rhetoric or empty verbalism but a fundamental right of the individual guaranteed in the Constitution, a breach of which will nullify the proceedings in favour of a victim. It cannot be construed outside the facts, and a Party alleging the breach must show clearly that the said right is violated or breached –see Gbadamosi V. Dairo (2007) 3 NWLR (Pt. 1021) 282 SC. In other words, it is not enough for a Party alleging such a breach to merely wave the banner of fair hearing, and expect this Court to jump to attention and decide the case in his favour, just for the asking. The facts of his case must show that the said right was indeed violated. But more often than not, the cry of lack of fair hearing is misleading. See Adebayo V. A.-G., Ogun State (2008) 7 NWLR (Pt. 1085) 201, wherein this Court per Tobi, JSC, hit the nail on the head, as follows: “Parties, who have bad cases, embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse Party and the Court, with a view to moving the Court away from the live issue in the litigation – – They make the defence in most inappropriate cases because they have nothing to canvass in their favour – – The fair hearing provision in the Constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a causal principle of law available to a Party to be picked up at will in a case and force the Court to apply to his advantage. – – It is a formidable and fundamental constitutional provision available to a Party, who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants, who have nothing useful to advocate in favour of their case, leave the fair hearing constitutional alone because it is not available to them just for the asking.”

(OLUKAYODE ARIWOOLA, J.S.C.) This is an appeal against the judgment of the Court of Appeal, Owerri Division in Appeal No.CA/OW/201/2014 delivered on the 4th day of July 2016 which upheld the judgment of the trial High Court of Imo State, holden at Owerri delivered on 11th February, 2014 Coram: I. O. Agudua, J. The respondents herein as claimants had commenced an action at the Owerri Judicial division High Court, holden at Owerri by filing a Writ of Summons on 27th September, 2011. (See page 1Â of the record). The record shows that the suit was given No. HOW/538/2011. Filed along with the Writ of Summons was a Motion Exparte and a 24 paragraphs affidavit in support deposed to by the 2nd respondent and a written address in support of the Motion. In the said application, the claimants had sought the following reliefs: (a) An order of Court setting down this suit under the “Undefended List”. (b) An order deeming the writ of summons (Exhibit E) as duly filed and served, the filing fees having been paid. (c) And for such order or other orders as the Honourable Court may deem fit to make in the circumstance. On 25/10/2011 when the matter came up for hearing, being an exparte application, it was undefended but the Court refused the reliefs sought to place the matter on the Undefended List of the Court. Instead, the Court ordered the claimants (hereinafter referred to as the respondents) to file their statement of claim and frontload accordingly as required by the rule. (See; page 146 of the record). The statement of claim and other processes were later filed and duly served on the defendants, (hereinafter called appellant but they did not file any defence to the claim. On the 5th of January, 2012, the respondents filed a Motion on Notice for an Order entering judgment in favour of the claimants, the appellants having failed or neglected to enter appearance and file their statement of defence. Upon service of the application for judgment on the appellants on 7/2/2012, the appellants filed an application on 21/2/2012 for extension of time to enter their Memorandum of appearance and file their statement of defence etc. Yet, the appellants failed to file the said processes to show that they were actually desirous of defending the action. On the 15th June, 2012, the respondents again filed another application for judgment in default after the time extended by the Court for the appellants to regularize had expired. Instead of considering the application for judgment, the trial Court in its wisdom ordered that trial be conducted and Pre-trial process was ordered, and it took place. On 12/12/2013 both parties were represented by counsel and the matter was adjourned to 13/2/2013 for pre-trial conference to commence. On the 5th June, 2013 the sole issue as determined and filed by the respondents was adopted by the conference and the case was adjourned to 4/7/2013 for hearing. When the matter came up for hearing on 4/7/2013 both parties were adequately represented by counsel. Mrs. J.C. Ibe, the Chief State Counsel was for the appellant. While S. O. Ejiogu Esq., with S. I. Uwade Esq., represented the respondents. The respondents opened their case by calling the 2nd respondent as PW1. He adopted his depositions made on 17th November, 2011 as his evidence. He tendered Exhibits A,B,C,D,E,F,G,H,J,K,L,M,N,O, P,Q,R,S,T,U,V,W, W1-W6, X Y, Z and they were admitted as claimants documents. It is noteworthy that the witness was not cross examined by the appellants’ counsel in Court, and the Court recorded cross examination for the witness as NIL. The matter was adjourned to 25/7/2013 for the defence. The learned counsel for the appellants – Mrs. Ibe wrote to Court on the next adjourned date for yet another adjournment on the ground of ill health. When the claimants counsel had no objection, the application was granted, and further hearing was adjourned to 24/9/2013 for defence. The matter suffered yet another adjournment on 24/9/2013 due to the absence of the learned counsel for the appellants. The matter was adjourned to 12/11/2013 for defence. Upon realizing that the defendants did not file any defence, even though they were represented by counsel, who urged the Court to allow her address the Court, the defence was foreclosed pursuant to Order 30 Rule 13 and matter was adjourned to 19/12/2013 for addresses of counsel. On 21/01/2014 when the matter came up for address of counsel, Mrs, Ibe, who had then become Assistant Director of Civil Litigation sought to move her application earlier filed on 18/12/2013, again seeking, inter alia, the following relief: “An Order of Court staying proceedings in suit No. HOW/538/2011 Between E.F. Network, Mr. Gideon Ebuchulam Vs. The Governor of Imo State & 3 Ors and accordingly referring the parties therein (i.e. the Applicant and the Claimant) to Arbitrar Panel in accordance with Clause 12 of the Service Agreement between the Parties.” The application was moved and considered. It was accordingly dismissed. Address of counsel was taken. While the claimant’s counsel’s address earlier filed on 12/11/2013 was adopted, the learned counsel for the appellants addressed orally. Judgment was adjourned to 11/2/2014 when it was given in favour of the claimants in the following terms: “1. That the Defendants are hereby ordered to pay to the Claimants the sum of N800,000,000 (Eight Hundred Million Naira) being the outstanding contract sum on the contract dated 15/9/2007 between the parties and representing the supply of 40,000 Nos of rolling Plastic Refuse Containers at the cost of N20,000 per container. 2. The defendants are also hereby ordered to pay to the Claimants N200,000,000 (Two Hundred Million Naira) being special and general damages. Aggrieved by the above judgment in favour of the Claimants led the appellants to appeal to the Court below on four (4) Grounds of Appeal. All the issues distilled were resolved against the appellants having been adjudged lacking in merit, the appeal was dismissed. Further aggrieved, the appellants filed a Notice of Appeal of four grounds on 11/7/2016 to this Court. Pursuant to the Rules of this Court, briefs of argument were filed and exchanged. The appeal was heard on 11/12/2018 on the following processes: (1) Appellants’ brief of argument filed on 03/11/2017 but deemed properly filed and served on 28/11/2017. (ii) Respondents’ brief of argument filed on 16/11/2017 but deemed properly filed and served on 28/11/2017. (iii) Appellants’ Reply brief of argument filed on 22/12/2017. In the appellants??? brief of argument settled by M. O. Nlemedim Esq., the following three issues are distilled for determination of this appeal; (a) Whether the improper commencement of this suit did not rob the trial Court of the requisite jurisdiction to entertain same. (Ground 1) (b) Whether the refusal of the appellants’ application for extension’ of time and leave to defend the suit did not deny the appellants their constitutional right to be heard in the matter. (Ground 2). (c) Whether the Court below was right to have affirmed the judgment of the trial Court which granted all the reliefs sought by the respondents as claimed (Ground 4). In the respondents’ brief of argument settled by F.R. Onoja Esq., the learned counsel adopted the issues distilled by the appellants to oppose the appeal. He drew the attention of the Court to the Preliminary Objection earlier filed and argued in the brief of argument, I shall deal with the Preliminary objection first, which is argued on pages 4-9 of the respondents’ brief of argument. Learned counsel contended that ground 2 of the Notice of Appeal is incompetent as the Supreme Court lacks jurisdiction to entertain it. The reason he gave is that when the trial Court ruled on the 21st January, 2014 and refused the appellants permission to file processes in the case out of time and to recall PW1, the learned trial Judge became functus officio in relation to that decision. He contended that there was no appeal lodged against the decision, as the appeal to the Court below was against the final judgment which was delivered on 11/2/2014 but not against separate ruling refusing the applicants leave to file their defence and recall PW1. He submitted that as there was no separate and distinct appeal against the decision, it remains valid and binding on the appellants. He relied on Kubor Vs. Dickson (2013) 4 NWLR (Pt.1345) 534 at 592; Okwranobi Vs. Mbadugha (2013) 17 NWLR (Pt.1383) 255 at 272; 273. He urged the Court to strike out ground 2 as this Court lacks jurisdiction to entertain that particular ground. He referred to ground 3 of the Notice of Appeal and contended that no issue had been formulated therefrom in the brief of argument. He stated that the said ground is deemed abandoned. He relied on Victor Vs. State (2013) NWLR (Pt.1369) 465 at 481; Ajibade Vs. Pedro (1992) 5 NWR (Pt. 241) 257; Ibrahim Vs. Mohammed (2003)6 NWLR (Pt.817) 615. On ground 4 of the Notice of Appeal, learned counsel contended that the appellant’s complaint is about the award of damages by the trial Court. He referred to the appellants’ ground 4, of their Notice of Appeal to the Court below at pages 173-176 of the record of appeal, wherein the appellants had raised the issue that the damages claimed was not proved by the respondents at the trial Court and that the trial Court was in error to have made an award on it. He however contended that at the Court below the appellants failed to distil and argue any issue in respect of that ground. The said ground 4 was accordingly struck out by the lower Court. Learned counsel submitted that having abandoned that ground and had it struck out, the appellant cannot now raise it afresh at this Court without leave. He urged the Court to strike out grounds 2, 3 and 4 of the grounds of Appeal. This Court is left with only ground 1 of the Notice of Appeal for consideration. Learned counsel for the appellants in his reply brief of argument to the respondent’s brief of argument, referred to the Notice of Preliminary Objection filed on 16/11/17, the same date that the respondents’ brief was filed. He contended that, that date of filing of the Preliminary Objection on 16/11/2017 having predated the appellants’ brief of argument which was deemed properly filed and served on 28/11/2017 is incompetent and should be struck out. Learned counsel contended further that in consequence, the preliminary objection argued in the respondents’ brief of argument cannot stand, hence it ought to be struck out as well. It is noteworthy that the appellants’ brief of argument to which the respondents responded with the Preliminary Objection was filed on 3/11/2017 but upon an application to regularize, the said brief was deemed properly filed and served on 28/11/2017. Consequently, the respondents’ brief of argument was also accordingly deemed properly filed on same 28/11/2017. Ordinarily, the accepted practice is that the respondent should argue his preliminary objection in his brief of argument to which the appellant will reply. That procedure adopted by the respondents obviates the need to separately file a Notice of Preliminary Objection. The arguments on the Preliminary Objection in the respondents’ brief of argument ordinarily supersedes the Notice earlier given. See; Lawan Abdullahi Buba Wassah & Ors Vs Tukshahe Kara & Ors (2014) LPELR – 24212 (2014) 12 SCM 258. In the result, the appellants’ argument on this point is to say the least, a misconception and does not hold water. On the main objection to ground 2 of the appellants’ notice of appeal contained on page 266 of the record of appeal, learned counsel contended that it is a misconception by the respondents. He referred to the appellants’ notice of appeal against the ruling of the trial Court on pages 137-138 of the record, filed at the Court below on 9/5/2014 at page 174 of the record. He also referred to the appellants’ argument of denial of fair hearing in their issue No.2 of their brief of argument and that this was considered by the Court below in its judgment which is being challenged now in this Court. He submitted that the ground is competent. On the attack on ground 3 of the grounds of appeal, learned counsel conceded that the appellants indeed abandoned ground 3 of the Notice of Appeal. Without any further ado, ground 3 of the Notice of appeal is accordingly struck out, no issue having been formulated therefrom. He submitted that ground 4 of the Notice of Appeal is competent, learned counsel contended that the appellants are entitled to raise the issue of want of proof of the damages claimed and awarded by the trial Court which was upheld by the Court below. He contended further that the respondents have not shown any injury they will suffer by raising this issue before this Court. He submitted that this Court is entitled to make any order to ensure the determination on the merit of the dispute between the parties. He urged the Court to overrule this ground of objection for lacking in merit. It is noteworthy that the ground 4 of the Notice of Appeal to this Court is on the award of N200,000,000 as special and general damages in favour of the respondents by the trial Court. This same point was raised as ground 4 in the appeal to the Court below on page 175 of the record. However, the appellants did not raise any issue from the said ground and same was adjudged abandoned and was accordingly struck out. In which case, the Court below was never given the opportunity to make an opinion on the issue and therefore not appealable. This Court does not have competence to consider the decision of the trial Court upon which the Court below never took a decision. It goes without saying that appeal lies only from the decision of the Court below not from the trial Court. Appeal does not lie on that point to this Court not having been taken by the Court below. It amounts to new point and there is procedure by which an appellant can raise a new point which was not taken before the Court below in this Court. Those steps must be taken before raising the new point in this Court. See; Nigeria Engineering Works Ltd. Vs. Denap Ltd. & Anor (2001) 12 SC (Pt.11) 1361 (2001) NWLR (Pt.746) 726; Raphael Agu Vs. Christian O. Ikewibe (1991) 3 NWLR (Pt.180) 385. In the circumstance, the point in ground 4 did not arise in the decision of the Court below, rendering the ground incompetent and liable to being struck out. Accordingly, ground 4 and issue 3 distilled therefrom are struck out. Now to the main appeal. The only two issues for consideration are issues 1 and 2 couched by the appellants as follows: – 1. Whether the improper commencement of this suit did not rob the trial Court of the requisite jurisdiction to entertain same. 2. Whether the refusal of the appellants’ application for extension of time and leave to defend the suit did not deny the appellants their constitutional right to be heard in the matter. However, in my humble view, reading through the two grounds 1 and 2 of the Notice of Appeal, the issues arising from them will be re-couched by me, as the Court is entitled to do, for clarity, precision and to lead to proper determination of the appeal as follows: 1. Whether the Court below was right in upholding that the commencement of this suit did not rob the trial Court of the requisite jurisdiction to entertain same, the way it was commenced 2. Whether the Court below was right in upholding that the refusal of the appellants’ application for extension of time and leave to defend the suit did not deny the appellants their constitutional right to be heard in the matter. See; Okoro Vs. The State (1988) 12 SC 191; Latunde & Anor Vs. Bello Lajinfin (1989) 4-5 SC 59. Learned counsel for the appellants took the said issues seriatim. On the first issue, he contended that the respondents sought to commence the suit that gave rise to this appeal by way of undefended list which is provided for under Order 11 Rule 8 of Imo State High Court (Civil Procedure) Rules, 2008. He referred to the application by the respondents brought ex parte on 27th September, 2011 for an order of Court to enter the suit under Undefended List and to deem the writ of summons annexed thereto as Exhibit as duly filed and served. He contended further that the Court refused the said application and struck it out. He referred to Order 3 Rule 2 of the Imo State High Court (Civil Procedure) Rules on the procedure and requirements for commencing a suit by Writ of Summons. He submitted that the procedure was not complied with by the respondents. He contended that the Motion Exparte having been struck out, all Exhibits attached to it must have gone out with it, hence the subsequent statement of claim and other processes filed had nothing to stand on. He submitted that the said suit was not initiated by due process of law, hence the Court has no jurisdiction to entertain it. He relied on Madukolu Vs. Nkemdilim (1962) All NLR 587. He submitted that the suit ought to have been struck out for want of competence. Learned counsel contended that assuming without conceding that the writ of summons attached to the Motion exparte was competent, the suit suffered the same fate, as the writ of summons was not accompanied by a statement of claim, written statement on oath, List of witnesses, etc as required by Order 3 Rule 2 of the Rules of Imo State High Court. He submitted that the trial Court was in grave error to have entertained the suit. And the Court below fell in the same error when it upheld the validity of the suit by holding that the respondents complied with the appropriate Rules of Court in commencing the action. He urged the Court to resolve the issue in favour of the appellants. In responding on this issue, learned respondents counsel submitted it contains a basic fallacy. He contended that indeed the suit was sought to be commenced under undefended list procedure but the trial Judge in his wisdom refused the application and ordered the suit to be heard under the ordinary list procedure. Upon order of pleadings and other required documents, the appellants were duly served with all processes but they neglected to respond by filing defence. He submitted that the respondents complied with the requirements of Order 3 Rule 2 of the Rules of Imo State High Court in commencing this action, and the trial Court and Court below were right in giving judgment and affirming same respectively. Learned counsel referred to the findings of the Court below on the respondent’s compliance with the requirements of the Rules and the Courts holding that, that was why the registry of the trial Court accepted the filing of the processes from the respondents. He urged the Court to resolve the issue in favour of the respondents but against the appellants. As I stated earlier, the respondents as claimants sought to commence this action under the Undefended List procedure believing that the defendants had no defence. However, upon hearing the exparte application and before the defendants could file any process, much more, the required Notice of Intention to defend, the trial Judge refused the application to enter the suit as Undefended, but ordered that the claimants should file their statement of claim and other required processes to prosecute the case under the general cause list requiring pleadings and frontloading. One thing is worthy of note in the proceedings. The Writ of summons dated 27th September, 2011, was separately filed and paid for, distinct from the Motion Exparte and other processes. In other words, the writ was not attached merely as an Exhibit. Therefore, when the Motion Exparte was considered by the trial Court and refused, it was only the application, the supporting affidavit and address of counsel in support that were struck out but not the Writ of Summons which was already given suit No. HOW/538/2011. As a result, when the trial Court ordered that the claimants shall file their statements of claim and other required processes, for the matter to be heard on pleadings and serve same on the defendants, the Statement of Claim dated 9th November, 2011, List of witnesses, written Statement Under Oath of the sole witness and List of Documents to be relied upon at the trial, contained on pages 15 to 50 of the record, all processes filed on 17th November, 2011. There is no doubt, that the respondents when filing the processes to commence this action at the trial Court, had complied with the Rules of Court -Â Order 3 Rule 2 Sub-rule 1 (a)-(d) of the Imo State High Court (Civil Procedure) Rules. Otherwise, Sub-rule 2 of Order 3 Rule 2 prohibits the Registry from accepting the processes where the claimants failed to comply with the Rule. It reads thus: “Where a claimant fails to comply with Rule 2(i) above, his Originating Process shall not be accepted for filing by the Registry.” No wonder, the Court below had found on page 28 as follows: “This was an unusual situation because the Court did not place the suit on the undefended list, waiting for the defendants to file Notice of Intention to defend the action, and an affidavit disclosing a defence on the merit. It means that from the 25/10/2011 when the application was refused and the trial Court ordered for filing of Statement of Claim and front loading, the Writ of Summons, which had to be served together with the Statement of Claim and other front loaded processes was then validly endorsed and served as per the Order of Court. If there was any defect or noncompliance with the Rules, the process would have been rejected by the Registrar.” There was nothing wrong with the procedure for commencement of this action to rob the trial Court of its competence or jurisdiction to entertain the respondents’ claim against the appellants. The trial Court properly assumed jurisdiction as invoked by the claimants by writ of summons pursuant to Order 3 Rule 2 of the Imo State High Court (Civil Procedure) Rules. And the Court below was right in affirming the decision to assume jurisdiction on the matter. Accordingly, issue No.1 is resolved against the appellants in favour of the respondents. The second issue of the appellants is – whether the Court below is right in upholding that the refusal of the appellants’ application for extension of time and leave to defend the suit did not deny the appellants their constitutional right to be heard in the matter. Learned counsel referred to the appellants’ application filed on the 16th day of December, 2013 praying the Court for an order granting the appellants leave to defend the suit and an extension of time within which to file their statement of defence and other processes. He contended that none of the paragraphs of the affidavit in support was controverted by the respondents who did not file any counter affidavit or any address in opposition to the application. He submitted that those paragraphs were deemed to have been admitted relying on Ajomale Vs. Yaduat No. 2 (1991) SCNJ 178 at 184; UBN Vs. Odusote (1994) 1 SCNJ 1; Shona- Jason Nig. Ltd Vs Omega Air Ltd (2005) 4 FWLR (Pt. 287) 1355 at 1376. He submitted that the trial Court was wrong to have refused the application. He conceded that the appellants had indeed delayed in filing their defence to the suit but he contended that, that was not enough to shut them out from the proceedings. Learned counsel contended that the Court cannot be made or directed to sacrifice justice on the altar of speed. As justice is the end result of fair hearing, and the length of time a fair hearing takes has to make allowance for the full and free exercise of the right of the parties to present their cases through their witnesses and counsel. He contended further that the refusal to accept the processes filed by the appellants in their defence as well as the application for recall of the respondent’s witness for cross examination amounted to unfair trial and in breach of the appellants’ fundamental right to fair hearing, guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, as amended. He submitted that the legal implication of a proceeding where a party’s right to fair hearing is breached is that the proceedings are a nullity and liable to be set aside. He urged the Court to so hold and resolve the issue in favour of the appellants. In responding to Issue No. 2, learned counsel to the respondents adopted his argument in respect of the Preliminary Objection and submitted that there was no appeal against the refusal of the trial Court to grant the appellants’ application to file processes in defence of the suit on the day the matter was set down for final addresses of parties. Learned counsel contended that without an appeal against the interlocutory decision of the trial Court, this Court lacks jurisdiction to entertain the ground of appeal and the issues formulated therefrom. He submitted that the Court below was also in error to have entertained the grounds of appeal alleging denial of fair hearing. He contended that in the unlikely event that he was wrong, learned counsel referred extensively to the findings of the Court below on pages 257-260 of the record where the lower Court came to the conclusion that the appellants were given ample opportunity of fair hearing but hey failed. He urged the Court to resolve the issue against the appellants. It is interesting to note that on this issue, the Court below had found as follows: “The allegation of denial of fair hearing because the trial Court refused the appellants the luxury of conducting the case the way they wanted; defying the existing orders of Court to file defence, or refusing to file processes to defend the suit, and even refusing to cross examine a witness only to apply for an order to recall the same witness for cross examination. Appellants cannot, sincerely claim to have been denied fair hearing in the circumstances. In this case, appellants appeared to have demonstrated consistent lack of interest to defend, as shown in delays and failure to file memorandum of appearance and defence or come to Court to defend it, and the case having earlier been adjourned for motion for judgment, but later aborted on the plea of the appellants, to enable them take steps to defend, but again abandoning the defence, and defying the Court order, I do not think appellants are right to complain of denial of fair hearing, when the Court ran out of patience to further indulge them in their dilatory games. The respondents too had a right to fair hearing of this case, to a conclusion. A party who fails to utilize opportunity of prosecuting his case cannot turn round to blame the Court for not being given fair hearing.” As earlier noted, the appellants were the defendants to the respondents’ claim before the trial Court. They were duly served with the claims of the respondents for them to respond. They participated in the trial and had every opportunity to cross examine the witness called by the respondents but refused so to do. They are now complaining of not being heard, in breach of their constitutional right. This is far from being correct. Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides as follows: “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 constituted in such manner as to secure its independence and impartiality.” (Underlining mine) What then is fair hearing? This has long been answered by the Court, in Isiyaku Mohammed Vs. Kano N. A. (1968) 1 All NLR 424 at 426, per Ademola, CJN delivering the judgment of this Court as follows: “It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation, justice has been done in the case.” The term “fair hearing” has also been judicially interpreted to involve situations, 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 come to the conclusion that the Court or Tribunal was fair to all the parties to the proceedings. Indeed, 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. See; Military Governor of Imo State & Anor Vs. Chief B.A.E. Nwauwa (1997) LPELR – 1876. Generally, a hearing cannot be said to be fair if any of the parties in a case is refused a hearing or denied the opportunity to be heard, present his case or call his witnesses. However, in Major Bello M. Magaji vs. The Nigerian Army (2008) 8 NWLR (Pt.1089) 338; (2008) 34 NSCQR (Pt.1) 108; 5 SCM 156, (2008) LPELR – 1814, the Court opined that it has become a fashion for litigants to resort to their right to fair hearing on appeal, as if it is a magic wand to cure all their inadequacies at the trial Court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation, in the interest of fair play and justice. The Court had held further as follows: “Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is principle which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.” Per Tobi, JSC. In this matter, one wonders what the appellants take the Court for. There is no doubt that the trial Court had been too patient with the appellants in accommodating their lack of diligence and seriousness in the manner they had handled the matter. The trial Court gave the appellants opportunity to be heard but they failed to cease the opportunity. All parties in a matter are entitled to fair hearing. In other words, both the plaintiffs and the defendants are entitled to be treated fairly. Both are entitled to justice and this must be seen to be done. It is rather most unfortunate, the way the counsel to the appellants handled the case from the trial Court until now. It certainly leaves much to be desired. The appellants should have themselves to blame for the outcome of the case with the lackadaisical way they handled the matter. It is noteworthy that the statement of claim was filed on 17/11/2011 claiming an outstanding contract sum on the contract dated 15/9/2007 between the parties in the case. Judgment was delivered on 11/2/2014 in favour of the respondents. We are now in March, 2019. I believe that the respondents are equally entitled to be fairly treated and the two lower Courts have done justice in this matter. The appellants were not denied their constitutional right to be heard. Right to be heard could mean opportunity to be heard. Where a person is given the opportunity but fails to utilize it, it is too bad for such a person. He should not be taken serious when complaining of being denied fair hearing. In the circumstance, the second issue is resolved against the appellants. Having resolved all the issues against the appellants, the appeal is devoid of any merit and deserves to be dismissed. Accordingly, the appeal is dismissed. Costs of N500,000.00 is awarded against the appellants but in favour of the respondents. OLABODE RHODES-VIVOUR, J.S.C.: I have had the advantage to reading in draft the leading judgment of my learned brother Ariwoola, JSC. I agree with it and for the reasons given I find no merit in the appeal. The appeal is dismissed with costs as proposed by my learned brother, Ariwoola JSC. JOHN INYANG OKORO, J.S.C.: My learned brother, Olukayode Ariwoola, JSC obliged me in draft form a copy of the lead judgment just delivered which I read before now. I totally agree with the reasons marshalled to reach the conclusion that this appeal is devoid of any scintilla of merit and deserves an order of dismissal. I have nothing new to add. I accordingly endorse and adopt my learned brother’s judgment as mine. I abide by the order as to costs. Appeal Dismissed. CHIMA CENTUS NWEZE, J.S.C.: My Lord, Ariwoola, JSC, obliged me with the draft of the leading judgment delivered now. I agree with His Lordship that, being unmeritorious, this appeal deserves to be dismissed. The complaint on the breach of the appellants’ right to fair hearing reminds me of the eloquent formulation in Adebayo v AG, Ogun State (2008) LPELR -80 (SC) 23- 24. For its bearing on the fortune of the appellant’s case, I crave Your Lordships’ indulgence to quote this Court’s view in extenso: I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened. They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases, leave the fair hearing constitutional provision alone because it is not available to them just for the asking. [Italics supplied for emphasis] From all indications, the appellant has “nothing useful to advocate in favour of [their appeal] … [Accordingly, they are advised to] leave the fair hearing constitutional provision alone because it is not available to [them] just for the asking.” It is for these, and the more detailed reasons in the leading judgement that I too, shall dismiss this appeal. Appeal dismissed. AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead Judgment delivered by my learned brother, Ariwoola, JSC, and I agree with him that this Appeal totally lacks merit. The Appellants are in this Court holding a banner with lack of fair hearing on it. But fair hearing is not an expression of mere rhetoric or empty verbalism but a fundamental right of the individual guaranteed in the Constitution, a breach of which will nullify the proceedings in favour of a victim. It cannot be construed outside the facts, and a Party alleging the breach must show clearly that the said right is violated or breached – see Gbadamosi V. Dairo (2007) 3 NWLR (Pt. 1021) 282 SC. In other words, it is not enough for a Party alleging such a breach to merely wave the banner of fair hearing, and expect this Court to jump to attention and decide the case in his favour, just for the asking. The facts of his case must show that the said right was indeed violated. But more often than not, the cry of lack of fair hearing is misleading- see Adebayo V. A.-G., Ogun State (2008) 7 NWLR (Pt. 1085) 201, wherein this Court per Tobi, JSC, hit the nail on the head, as follows: Parties, who have bad cases, embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse Party and the Court, with a view to moving the Court away from the live issue in the litigation – – They make the defence in most inappropriate cases because they have nothing to canvass in their favour – – The fair hearing provision in the Constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a causal principle of law available to a Party to be picked up at will in a case and force the Court to apply to his advantage. – – It is a formidable and fundamental constitutional provision available to a Party, who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants, who have nothing useful to advocate in favour of their case, leave the fair hearing constitutional alone because it is not available to them just for the asking. In this case, it is quite clear that the trial Court bent over backwards to accommodate the Appellants, who were nonchalant about the case. They failed to utilize the opportunity given to them by the trial Court, and cannot be heard to say that their right to fair hearing was violated. Thus, I also dismiss this Appeal, and I also award the same costs of N500, 000.00 to the Respondents.

COUNSELS

M. O. Nlemedin, Esq. (Attorney General of Imo State) with him, C. O. Onwusor, Esq. (State Counsel, M.O.J. Imo State) for the Appellant(s)|F.R. Onoja, Esq. with him, E.D. Moi-Wuyen, Esq., A.O. Otori, Esq. and A.E. Ohiani, Esq for the Respondent(s)|

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