UMAR v. WILLIAMS & ORS
(2022)LCN/16582(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Wednesday, April 13, 2022
CA/A/192/2013
Before Our Lordships:
Haruna Simon Tsammani Justice of the Court of Appeal
Biobele Abraham Georgewill Justice of the Court of Appeal
Bature Isah Gafai Justice of the Court of Appeal
Between
BABA KURA UMAR APPELANT(S)
And
1. BEATRICE OLUKEMI WILLIAMS 2. HON. MINISTER FEDERAL CAPITAL TERRITORY 3. FEDERAL CAPITAL DEVELOPMENT AUTHORITY RESPONDENT(S)
RATIO
WHETHER OR NOT THE RIGHT TO FAIR HEARING IS FUNDAMENTAL TO JURISDICTION
Now, it is settled law that, the right to fair hearing is a fundamental aspect of jurisdiction. It is a universal concept founded on natural law which states that, no man shall be condemned or damnified without being heard, or given the opportunity to be heard in defence. This concept has been enacted in our constitution; that is the Constitution of the Federal Republic of Nigeria, 1999 (as amended). This is enshrined in Section 36(1) of the Constitution, which is the grundnorm, and it stipulates as follows:
“36. (1) 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”.
This provision has been the subject of judicial interpretation by the Supreme Court, and by extension this Court, in a legion of authorities. Thus, the attributes of the right to fair hearing has been determined to include the right to be heard which in its Latin term is expressed as audi alteram partem. Generally, the essential elements of the right to fair hearing are:
(a) Each party must be given an opportunity to have a counsel of his choice to represent him at the proceedings.
(b) A party must be afforded the opportunity to call all necessary witnesses in support of his case.
(c) He must also have the opportunity to cross-examine or otherwise challenge the evidence of the witnesses presented by the adversary.
(d) At the close of the case, a party or his counsel must be afforded the opportunity to address the Court before judgment.
Those and more are the essential constituents of fair hearing. See Njiokwuemeni v. Ocher (2004) 15 NWLR (Pt. 895) 196; Ndukauba v. Kolomo (2005) 4 NWLR (Pt. 915) 411; Ovunwo v. Woko (2011) LPELR-2841 (SC) and S & D Construction Co. Ltd. v. Ayoku & Anor. (2011) 13 NWLR (Pt. 1285) 487. Essentially therefore, for all the above elements or attributes to be observed, the Court must afford each party the opportunity to be in Court, and that can only be done, where the parties are notified of the date, time, place of the proceedings and the nature of the case he is to meet at the trial. In simple terms, he must be given or issued and served a hearing notice. PER TSAMMANI, J.C.A.
WHETHER OR NOT THE ISSUANCE AND SERVICE OF HEARING NOTICE ON PARTIES ACTIVATES THE JURISDICTION OF THE COURT
The issuance and service of hearing notice on the parties activates the jurisdiction of the Court to hear and determine any suit. Service of hearing notice is therefore a condition precedent to adjudication and failure to comply may result in the entire proceedings being vitiated. Thus, the parties to a case are entitled, as of right to be served hearing notice for proceedings of each day, save where he or his counsel was in Court when the matter was adjourned to another date. See Apeh & Ors. v. PDP & Ors. (2016) LPELR-40726 (SC); Sken Consult Nig. Ltd. v. Ukey (1981) 1 SC 6; NACB Ltd. v. Ozoemelam (2016) 11 NWLR (Pt. 1517) 376; Achuzia v. Ogbomah (2016)11 NWLR (Pt. 1522) 59 and Somai Sonka Co. (Nig.) v. Adzege (2001) FWLR (pt. 68) 1104. Thus, the Supreme Court in Compact Manifold & Energy Services Limited v. Pazan Services Nigeria Limited (2019) LPELR-49221 (SC), held per Galunje, JSC as follows:
“…The issue of service of hearing notice on a party notifying him of the hearing date of matters is very fundamental to the administration of justice. It is the service of hearing notice that confers on the Court the jurisdictional competence to entertain the matter before it. Thus, where a matter is adjourned to a date other than the date the parties had previous notice of hearing, the Court has a duty to notify them of subsequent adjournment. The Court should not predicate its decision on mere assumption that a party must have been served with Court process at one stage and that he should be aware of the subsequent hearing dates” PER TSAMMANI, J.C.A.
WHETHER OR NOT A BREACH OF RIGHT TO FAIR HEARING CAN VITIATE AN ENTIRE PROCEEDING
Where the breach of the right to fair hearing has been proved by the evidence on record, the entire proceedings including the judgment, the product of that proceeding will be set aside for being a nullity. Hearing and determination of a cause in breach of the right to fair hearing, will have the effect of depriving the Court of the jurisdiction to have heard and determined the suit, as same will be deemed to have been conducted without jurisdiction and therefore, a nullity. See Onyemeh v. Egbuchulam (1996) 5 NWLR (Pt. 448) 255 at 266-267; Long-John & Ors. v. Blakk & Ors. (1998) LPELR-1791 (SC); Newswatch Communications Ltd. v. Attah (2006) LPELR-1986 (SC); AG; Rivers State v. Ude & Ors. (2006) LPELR-626 (SC) and Inakoju & Ors. v. Adeleke & Ors. (2007) LPELR-1510 (SC). Thus, in Oviarobo v. Ogboe (2015) LPELR-25690 (CA), by learned brother, Barka, JCA observed as follows:
“The position of the law as laid down by the apex Court is that, fair hearing is synonymous with natural justice, an issue clearly at the threshold of our judicial system. Once it has been established that there is a denial of fair hearing as enshrined in Section 36(1) of our Constitution, the whole proceedings automatically become vitiated with a basic and fundamental vice rendering the entire judgment null and void.” PER TSAMMANI, J.C.A.
THE DUTY OF THE COURT IN DETERMINING A MATTER
From what I stated above, the duty of the Court is to give each party to the proceeding adequate time and opportunity of being heard in the matter. Once, the party has been given that opportunity, he must take the benefit, as the exercise of that right is not absolute. The opportunity given to exercise the right to be heard, does not transform into or mean that, the party must exercise that right at his own terms, pace or pleasure, for the right to exercise the right is a double, howbeit triple sword or benefit enuring to the plaintiff, the defence and the Court. Consequently, where a party has been afforded that opportunity to be heard, but fails or refuses to utilize such opportunity, he cannot complain when the Court closes such opportunity at a later stage of the proceedings. He must live with the unpalatable consequences of his dereliction. See Okike v. LPDC (2005) LPELR-2450 (SC); Orugbo v. Una (2002) 16 NWLR (Pt. 792) 175; Federal Housing Authority v. Kalejaiye (2010) LPELR-1267 (SC); Ezechukwu & Anor. v. J. O. C. Onwuka (2016) LPELR-26055 (SC) and Ayoade v. State (2020) LPELR-49379 (SC). Thus, the Supreme Court in Newswatch Communications Ltd. v. Alhaji Aliyu Ibrahim Attah (2006) 12 NWLR (pt. 993) 144 at 171 paras. B- E held that:
“A trial Judge can indulge a party in the judicial process for sometime but not for all times. A trial Judge has the right to withdraw his indulgence at the point the fair hearing principle will be compromised, compounded or will not really be fair as it affects the opposing party who equally yearns for it in the judicial process. At that stage, the party who is not up and doing to take advantage of the fair hearing principle put at his door steps by the trial Judge, cannot complain that he was denied fair hearing…”
See also Bill Construction Co. Ltd. v. Imani & Sons Ltd./ShelI Trustees Ltd. (2006) LPELR-782 (SC); Joel Okunrinboye Export Co. Ltd. & Ors. v. Skye Bank Plc. (2009) LPELR-1618 (SC) and Onyenobi v. Amadi & Ors. (2013) LPELR-22041 (CA). That being so, a party who had the opportunity of being heard, but failed or refused to utilize the opportunity, cannot be heard to complain that his right to be heard was breached. PER TSAMMANI, J.C.A.
HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal was initiated by a Notice of Appeal which was filed on the 19/12/2012 against the judgment of Federal Capital Territory (FCT) High Court of Justice delivered on the 23rd day of October, 2012 in Suit No: FCT/HC/CV/1319/2007.
By an Amended Writ of Summons and Amended Statement of Claim filed on the 6th day of May, 2009, the 1st Respondent who was the Plaintiff in the Court below, sought the following reliefs:
1. A declaration that the plaintiff is entitled to the right of occupancy in respect of Plot 717, Cadastral Zone 84, Jabi District, Abuja.
2. A Order of this Honourable Court that the purported rivocation/withdrawal by the 1st and 2nd Defendants of the allocation of Plot No. 717, Cadastral Zone B4, Jabi District, Abuja to the Plaintiff is unconstitutional, a breach of the Land Use Act, null, void and of no effect.
3. An Order of perpetual injunction restraining the 3rd Defendant from trespassing or continuing development of Plot 717, Cadastral Zone 84, Jabi District, Abuja in any manner prejudicial to the interest of the plaintiff.
4. An Order of this Honourable Court confirming the right of the plaintiff as beneficial owner of Plot 717, Cadastral Zone B4, Jabi District, Abuja.
5. The sum of N3,101,543.25k being special damages derivable as cost of construction already done and demolished by the 2nd and 3rd Defendants,
6. The sum of N200,000,000.00 being general damages against the 1st, 2nd and 3rd Defendants.
The brief facts of the case has been stated by the 1st Respondent at pages 4-5 of the 1st Respondent’s Brief of Arguments as follows:
“Sometime in the year 1999, the 1st Respondent was allotted a plot of land being Plot 717, Cadastral Zone B4, Jabi District, Abuja, to wit: a Certificate of Occupancy No. FCT/ABU/OY.1934 was issued to her. The 1st Respondent forwarded her building Plan to the 3rd Respondent and same was approved. Prior to the grant of the approval, the 2nd Respondent had issued a notice calling for recertification of Certificate of Occupancies of land owners in the Federal Capital Territory. The 1st Respondent complied by submitting the Certificate of Occupancy and another certificate was issued to her for the said property. The 1st Respondent thereafter mobilized her engineers to site and they commenced building sometime in January, 2006.
While the construction was ongoing, the 1st Respondent received a letter from the Development Control, an Agency under both the 2nd and 3rd Respondents that the building plan earlier submitted and approved has been withdrawn due to the fact that the plot allocated to the 1st Respondent had been revoked. Consequently, a “stop work” notice was posted on the property and the structure erected by the 1st Respondent was demolished. Several letters and visits to the offices of the 2nd and 3rd Respondents by the 1st Respondent to re-consider their stand proved abortive. The 1st Respondent was later notified that the plot of land allocated to her had been given to the Appellant without recourse to due cause. She therefore instructed her Attorney to prosecute the matter by instituting this action in the Court of law”.
It should be noted that, the facts as summarized by learned counsel for the 1st Respondent were not challenged by the Appellant who centred his complaint on the ground that he was not given the opportunity of exercising his constitutional right to be heard in the trial Court. It is also important to note that, at the trial, the Plaintiff/1st Respondent called one witness. The 2nd and 3rd Respondents who were the 1st and 2nd Defendants in the trial Court also called one witness. At the conclusion of evidence and addresses of counsel, the learned trial Judge gave judgment in favour of the Plaintiff/1st Respondent. The Appellant who was the 3rd Defendant was dissatisfied with the judgment and consequently filed this appeal.
The Notice of Appeal consisting of eight (8) Grounds of Appeal was filed on 19/12/2012. The parties then filed and exchanged Briefs of Arguments. The Appellant’s Brief of Arguments settled by Ikechukwu Uzuegbu; Esq was filed on 12/2/2018 but deemed filed on 01/7/2021. Therein, five (5) issues were distilled for determination as follows:
1. Whether the failure of the trial Court to properly put the 3rd Defendant/Appellant on Notice of the case put forward by the Plaintiff/1st Respondent does not amount to a denial of fair hearing?
(Distilled from Grounds 1 and 5),
2. Whether the entire proceedings were not null and void?
(Distilled from Grounds 2, 6 and 8),
3. Whether the provisions of Land Use Act 1978 has unrestricted application in land administration in the Federal Capital Territory by virtue of the provisions of Section 1(3) and (4) of the Federal Capital Territory Act, 2004?
(Distilled from Ground 3).
4. Whether the Plaintiff/1st Respondent was given Notice of Revocation of Plot 717, Cadastral Zone B4, Jabi Abuja?
(Distilled from Ground 4).
5. Whether the trial Court did not go outside its jurisdiction in awarding the sum of N1,000,000.00 (One Million Naira) as general damages even when the plaintiff never sought for an order declaring the 3rd Defendant/Appellant a trespasser to the land in issue?
(Distilled from Ground 7),
The 1st Respondent filed a Brief of Argument on 30/7/2021. Three (3) issues were distilled therein for determination as follows:
a. Whether the trial Court afforded the Appellant the opportunity to present his case by putting him on notice of the case.
(Distilled from Grounds 1 and 5).
b. Whether the trial Court erred in law when it delivered its judgment outside statutory 90 days,
(Distilled from Ground 2),
c. Whether the trial Court was vested with the jurisdiction to entertain the suit as initiated.
(Distilled from Ground 8),
The Appellant’s Reply to the 1st Respondent’s Brief of Arguments was filed on 12/10/2021 but deemed filed on 20/10/2021. The 2nd and 3rd Respondents did not file any Brief of Arguments.
Before I proceed, if I need be, I wish to point out that, the 1st Respondent had on 22/1/2020 filed a motion on Notice seeking the dismissal of the appeal for lack of jurisdiction. However, same was raised and argued as a Preliminary Objection in pages 7-13 of the 1st Respondent’s Brief of Arguments. I am of the view that learned counsel erred in terming the said motion as a Preliminary Objection. In law, a Preliminary Objection has been considered as a pre-emptive strike, the resolution of which will determine whether or not the appeal will be determined on the merit. Accordingly, where the objection, if upheld would render further proceedings in the matter unnecessary or impossible, a Preliminary Objection would be filed. Thus, where in an appeal, a Respondent challenges the competence of the appeal, such as on the issue of jurisdiction, or the competence of the entire grounds of appeal, a preliminary objection would be proper. However, where only some of the grounds are challenged, it would be improper to file a Notice of Preliminary Objection. The proper process to file in the circumstances, would be a motion on notice. See Rabiu v. Adebajo (2012) 15 NWLR (Pt. 1322) 125; Abe v. Unilorin & Anor. (2013) LPELR-40612 (SC) and NNPC v. Famfa Oil Ltd. (2012) 17 NWLR (Pt. 1328 at 148. Thus, in Chief Humprey Ezeofor v. Honey King Media Limited (2018) LPELR — 44558 (CA), this Court, per Jauro, JCA (as he then was) held as follows:
“The law is trite that the purpose of Preliminary Objection is to bring the hearing of the appeal to an end for being incompetent or fundamentally defective. Consequently, a successful preliminary objection terminates the appeal. In this appeal, the preliminary objection was filed against one ground of appeal, and there are other grounds of appeal that can sustain the appeal, a preliminary objection is inappropriate…”
In the instant case, the Preliminary Objection challenged the competence of Grounds 2, 3, 4, 5, 6 and 7 of the Notice of Appeal. There is no challenge to the competence of Grounds 1 and 8 of the Notice of Appeal. It is trite law that, even a single Ground of Appeal can sustain an appeal. See General Electric Co. v. Harry Akande (2010) 18 NWLR (Pt. 1225) 596 and Adejumo & Ors. v. Olawaiye (2014) 12 NWLR (Pt. 1421) 252. In that respect, a Preliminary Objection is not appropriate in the instant case. The motion on Notice filed on 22/1/2020 is appropriate in the circumstances. This is more so when the Grounds to sustain same are the same as stated in the Notice of Preliminary Objection. In the circumstance, I shall proceed to consider the motion on Notice filed on the 22/1/2020 since same was never withdrawn.
Now, by the said motion on Notice the 1st Respondent prayed the Court to dismiss the appeal for lack of jurisdiction; OR IN THE ALTERNATIVE:
(2) AN ORDER of this Honourable Court striking out Grounds 3, 4 and 7 of the Notice of Appeal.
(3) AND ORDER of this Honourable Court striking out issues 2, 3, 4 and 5 contained in the Appellant’s Brief of Argument.
(4) AND FOR SUCH FURTHER ORDER OR ORDERS as this Honourable Court may deem fit to make in the circumstance.
The Grounds upon which the Application is premised are as follows:
(a) The issue 2 as formulated by the appellants does not flow from either ground 2 or 6 of notice of appeal.
(b) The issue 2 is therefore incompetent as it appears to have emanated from no competent ground.
(c) Grounds 3, 4 and 7 ought to be deemed abandoned by the Appellant and is (sic) liable to be struck out as no issues were competently formulated therefrom.
(d) The Appellant’s brief filed by the appellant is grossly incompetent, fundamentally flawed and irredeemably defective, same having not flown from any of the grounds of appeal.
(e) The Appellant are (sic) deemed to have abandoned this instant appeal having not filed a competent brief of argument.
(f) In the circumstances, this Honourable Court lacks the jurisdiction to entertain the instant appeal as presently constituted.
In arguing the motion, learned counsel for the 1st Respondent began by contending that issue 2 formulated by the Appellant is not distilled from neither Ground 2 nor 6 of the Notice of Appeal. The case of Adebesin v. State (2014) 9 NWLR (Pt. 1413) 609 at 631 was then cited to submit that, it is elementary law that, where an issue is not rooted on any ground of appeal, such issue is incompetent and liable to be struck out. The cases of Animas-haun v. U.C.H. (1996) 10 NWLR (Pt. 476) 65; Ogunyade v. Oshunkeye (2007) 15 NWLR (Pt. 476) 218 at 240 and Williams v. Williams (2014) 15 NWLR (Pt. 1430) 213 were also cited to further submit that, an issue for determination must flow from one or more of the grounds of appeal. That in the circumstances, issue 2 not having any bearing with grounds 2, 6 and 8 of the Grounds of Appeal, same is incompetent and should be struck out.
In response, learned counsel for the Appellant contended that issue 2 relates to Grounds 2, 6 and 8 of the Notice of Appeal. The case of Kabirikima & Anor. v. Emefor & Ors. (2009) LPELR-902 (SC) was cited in support.
It is settled law that, an issue for determination must be distilled from one or more grounds of appeal. In other words, an issue for determination must arise from and relate to the Ground of Appeal from which it is said to have been raised or distilled, see Aso Savings & Loans Plc. V. Mr. Uzoma lwunamara (2021) LPELR-55878 (CA); Adelekan v. Ecu-line Nv (2006) 12 NWLR (Pt. 993) 33 and Madumere & Ors. v. Okafor & Ors. (1996) 4 NWLR (Pt. 445) 637. Thus, issues for determination must be tailored to the real issue raised in the ground of appeal. That is so, even where the issue raises a point of jurisdiction. Where an issue formulated does not relate to the ground of appeal from which it is said to be formulated, it will be incompetent and accordingly struck out. SeeIkeme & Anor. v. Ugwu (2013) 15 NWLR (Pt. 1377) 358; Achiakpa v. Nduka (2001) 14 NWLR (Pt. 734) 623 and Premier Records Ltd. v. Nwachukwu (2008) LPELR-4866 (SC).
In the instant case, issue two (2) formulated by the Appellant reads as follows:
“Whether the entire proceedings were not null and void?”
Same is said to be distilled from Grounds 2, 6 and 8 of the Notice of Appeal which, without their particulars, read as follows:
“2. The Learned Trial Judge erred in law when he gave judgment outside the stipulated three months after the Final Written Address was adopted.
7. The learned trial Judge erred in law when he proceeded to hear and determine this case when the Plaintiff failed to comply with the provisions of Order 24 Rule 6 of the Federal Capital Territory High Court (Civil Procedure) Rules, 2004 which requires a certificate to be endorsed following amendment of the Writ of Summons and statement of claim which occasioned a miscarriage of justice.
8. The learned trial Judge erred in law when he proceeded with trial in this matter and determined same based on unsigned original Writ of Summons together with the Amended Writ.
Now, a guarded consideration of the three Grounds of Appeal reproduced above, and their particulars would show that three distinct complaints were raised therein. It should be noted that, an issue for determination, is generally a proposition of law or of fact in dispute between the parties, necessary for the determination of the Court. It is therefore not permissible to raise and condense multiple issues into one issue for determination. No doubt in the determination of an issue in an appeal, sub-issues or points may arise for determination, but it’s not permissible to merge distinct issues arising in an appeal for determination, as done by the Appellant in issue 2. Doing that will only obfuscate the issues thereby leading to confusion. That is why it is required that an issue for determination must be clear, concise, precise, accurate and devoid of complexities. It must be such that it can be easily comprehended. See Ikare Community Bank (Nig.) Ltd. v. Ademuwagun (2005) 7 NWLR (Pt. 924) and Unokan Enterprises Ltd. v. Omuvwie (2005) 1 NWLR (pt. 907) 293.
Having held as above, the logical conclusion is that issue 2 is incompetent and accordingly struck out. What follows therefore, as a logical consequence of the above findings is that, the Appellant did not formulate any issue from Grounds 2, 6 and 8 of the Notice of Appeal. The effect is that such Grounds are deemed abandoned; and their fate is to have them struck out. Grounds 2, 6 and 8 of the Notice of Appeal are therefore struck out.
Learned counsel for the 1st Respondent went on to submit that, no issues were distilled from Grounds 3, 4 and 7 of the Notice of Appeal, therefore, same should be struck out for being incompetent. The case of Golden Construction Co. Ltd. v. Strateco Nigeria Ltd. (2014) 8 NWLR (Pt. 1408) 171 at 204 was cited in support and to further submit that in view of the resolution in issue 2, it is safe to conclude that no issues were distilled from Grounds 2, 3, 4, 6, 7 and 8 of the Notice of Appeal. That a cursory look at the Brief of Argument filed by the Appellant, though said to have distilled issues from those grounds, no argument whatsoever was proffered in support. That the absence of argument in support of those issues renders the Grounds as having abandoned. In other words, no issues were distilled from Grounds 2, 3, 4, 6, 7 and 8 of the Notice of Appeal and therefore fatal to the competence of those Grounds of Appeal.
Learned counsel for the 1st Respondent drew our attention to Grounds 2, 3, 4, 6, 7 and 8 of the Notice of Appeal, to submit that, a careful perusal of those grounds would lead to the irresistible conclusion that no issue was distilled from those grounds. The case of Okoye & Ors. v. Nigerian Construction & Furniture Co. Ltd. & Ors. (1991) 6 NWLR (Pt. 199) 501 was then cited to submit that, it is settled law that, Grounds of Appeal from which no issue was formulated are deemed abandoned and liable to be struck out. That the implication of the above finding is that, the Brief filed by the Appellant is incompetent. That in the circumstances, the Respondent is not duty bound to join issue with the Appellant as the appeal is deemed in such situation, to have been abandoned. The case of Galadima v. Tambai (2010) SCNJ 190 was cited in support. We were urged to strike out the Notice of Appeal for being grossly incompetent by virtue of Order 7 Rule 6 of the Court of Appeal Rules, 2016 (Order 7 Rule 6 of the Court of Appeal Rules, 2021).
Learned counsel for the Appellant did not respond to the submissions of the 1st Respondent. It is settled law that, where a party does not respond to an argument on an issue raised by the other party, he will be deemed to have conceded to the point so canvassed. It therefore means that, it is incumbent on a party to respond to or controvert any point made by the opponent which is crucial that it can determine the appeal one way or the other. Thus, any material point made by a party which is not countered by the opponent is deemed to have been conceded to. See F. B. N. Plc. v. Akinyosoye (2005) 5 NWLR (Pt. 918) 340; Shona-Jason Ltd. v. Omega Air Ltd. (2006) 1 NWLR (Pt. 960) 1 and Eigbe v. N. U. T. (2008) 5 NWLR (Pt. 1081) 604. In the instant case, the Appellant having not responded to or countered the issue raised by the 1st Respondent on the competence of Grounds 2, 3, 4, 6, 7 and 8 of the Notice of Appeal is deemed to have conceded that point.
In any case, it is settled law that, appeals are argued on issues formulated by the parties and not on the Grounds of Appeal. Consequently, issues for determination must flow from the Grounds of Appeal. Accordingly, the arguments of counsel must be within the scope of the issues formulated for determination. In other words, where issues have been formulated the Appellant has a responsibility and indeed, the duty to proffer arguments on each of the issues so formulated. Those issues may be argued independently or in combination with other issues. In other words, where the Appellant fails to proffer arguments on the issues formulated, such issue(s) is deemed to have been abandoned and will be struck out. See Adegbenro & Anor. v. Akintilo & Ors. (2009) LPELR-4423 (CA); Buhari & Ors. v. Obasanjo & Ors. (2003) LPELR- 24859 (SC); Agbo v. State (2006) NWLR (Pt. 977) 545 and Ali v. State (2012) 7 NWLR (Pt. 1299) 209. Thus, the Supreme Court in Onamade v. A.C.B. Ltd. (1997) LPELR-2671 (SC), per Iguh; JSC held that:
“An issue or a preliminary objection in respect of which no argument is advanced in the brief of argument and therefore not canvassed before the Court must be deemed abandoned.”
In the instant case, the Appellant proffered no argument in respect of issues 3, 4 and 5 and which issues are said to be distilled from Grounds 3, 4 and 7. Accordingly, issues 3, 4 and 5 are hereby struck out as having been abandoned. It therefore follows that Grounds 3, 4 and 7 of the Notice of Appeal are incompetent. I therefore order that issues 3, 4 and 5 distilled by the Appellant, and Grounds 3, 4 and 7 from which they were distilled, be and are hereby struck out. I had earlier in the course of this judgment found that issue 2 and Grounds 2, 6 and 8 from which the issue is said to be distilled are incompetent, and were struck out. It therefore means that issues 2, 3, 4 and 5 and Grounds 3, 4, 6, 7 and 8 from which those issues were distilled are incompetent. They are hereby struck out. That leaves issue 1 which is said to be distilled from Grounds 1 and 5.
I have carefully reflected on the said issue 1 and grounds 1 and 5 from which they are distilled. I am satisfied that, that issue is competent and can therefore sustain the appeal for as follows:
“Whether the failure of the trial Court to properly put the 3rd Defendant/Appellant on Notice of the case put forward by the Plaintiff/1st Respondent does not amount to a denial of fair hearing”.
Arguing on the issue, learned counsel for the Appellant referred to Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), to submit that, fair hearing can only be resolved by giving parties the opportunity to lead evidence in support of their case. That in the instant case, the 3rd Defendant/Appellant was not given fair hearing when on 30/11/2010, after the Plaintiff/1st Respondent’s sole witness testified and the matter was further adjoined to 3/2/2011 for cross-examination but no hearing notice was served on the Appellant notifying him of that date. That, on 3/2/2011 when the PW 1 was cross-examined, the matter was further adjourned to the 29/3/2011 for defence but no hearing notice was served on the 3rd Defendant/Appellant. That on 29/3/2011 the Court again adjourned to 17/5/2011 for defence, and again, no hearing notice was served on the 3rd Defendant/AppelIant. Furthermore, that on the 17/5/2011, the 1st and 2nd Defendants/2nd & 3rd Respondents called their only witness who testified as DW1, and the matter adjourned for the 3rd Defendant/Appellant to open his defence instead of the cross-examination of the 1st & 2nd Defendants/2nd & 3rd Respondents’ witness who testified as DW1.
Learned counsel for the Appellant went on to submit that, a hearing cannot be said to be fair, if any of the parties in the case is refused a hearing or denied an opportunity to be heard. The case of Att. Gen. of Rivers State v. Ude (2007) FWLR (Pt. 347) 603 was cited in support, and to also submit that, hearing notice was not given to the Appellant when the matter came up on 30/3/2011 and 17/5/2011. That it is patent from the record of appeal that, the Appellant was not given any opportunity to cross-examine PW 1 and DW1. The cases of Eke v. Mill. Admin. of Imo State (2007) FWLR (Pt. 381) and Victino Fixed Odds Ltd. v. Ojo (2010) FWLR (Pt. 524) 27 were also cited in support.
Learned counsel for the Appellant went on to submit that, where a party is repeatedly absent in Court, the Court seised of the case has a duty to notify him of any date fixed for the hearing of the matter. That in the instant case, the Appellant deposed to the fact that he was not aware that the case which had earlier been struck out, had been relisted. That in the circumstances, a Court should not proceed with the hearing of a matter unless it is sure that the parties are aware of the date fixed for hearing. The case of Ene v. Asikpo (2011) FWLR (Pt. 553) 1918, was cited in support and to further submit that, the trial Court embarked upon the hearing of the suit as if the Appellant was not a party to the suit. It was then submitted that, the Supreme Court has in Alhaji Abdullahi Baba v. Nigerian Civil Aviation Training Centre & Anor. (1991) 5 NWLR (pt. 192) 388 laid down some of the factors to be considered in determining the question of whether there has been fair hearing, as follows:
(a) Has the person to be affected by the outcome of the case been present all through the proceedings to hear all the evidence against
(b) Has he been given the right to cross-examine witnesses who gave evidence against him?
(c) Has he the opportunity to read all the documents tendered in evidence at the hearing of the case?
It was then submitted that the learned trial Judge failed to follow those guidelines. The case of Iyoho v. Effiong (2007) FWLR (Pt. 344) 207 was then cited to further submit that, the trial Court denied the Appellant his fundamental right to fair hearing. We were accordingly urged to resolve this issue in favour of the Appellant.
In response, learned counsel for the 1st Respondent contended that, the Appellant did not remember that he filed a Memorandum of appearance in the suit upon being served the Writ of Summons and hearing notice. It was then submitted that the allegation that the trial Court deprived him of the opportunity to present his case is not backed by any evidence but a ploy to mislead the Court. That, the trial Court availed all the parties before it the opportunity to present their cases. That, the Appellant after filing a Memorandum of Appearance, failed to file a statement of defence and attend the trial but chose to stay away from the proceedings. Learned counsel then chronicled the events for each of the dates fixed for the matter from inception on 06/05/2009 till the date of judgment, which is 23/10/2012. It was then submitted that, what the law requires is that hearing notices be issued and served on the parties to the case, but the Appellant failed to use the several opportunities given to him to present his case.
Learned counsel for the 1st Respondent went on to submit that, a deligent party or counsel has a duty to keep himself abreast of the proceedings. The cases of Aina v. Obabiolorunkosi (1986) 2 NWLR (Pt. 22) 316 at 329; Kaduna Textiles v. Umar (1994) 1 NWLR (Pt. 319) 14 at 159 and Chidoka v. F.C. F. C. Ltd. (2013) 5 NWLR (Pt. 1346) 144 were then cited to further submit that, a party who fails to appear in Court after being accorded the opportunity cannot turn around to complain of breach of his right to fair hearing. The case of N. A. C. B. Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517); Borno College of Agriculture v. Maluma (2014) 15 NWLR (Pt. 143) 605 at 619-620 paras. B-A; Muhammed v. Ekpelai (2001) 6 NWLR (Pt. 710) 700 at 709-710 paras. G-A; Ajidahun v. Ajidahun (2000) 4 NWLR (Pt. 654) 605 at 614 paras. A-B and Bill Construction Co. Ltd. v. Imani & Sons Ltd/Shell Trustees Ltd. (2006) 1 NWLR (Pt. 1013) 1 were also cited in support. That, in the instant case, the Appellant deliberately stayed away from the trial with the aim to delay and frustrate the hearing and determination of the suit.
Learned counsel for the 1st Respondent then argued that, the burden is on the Appellant who alleges that his right to fair hearing has been breached, to prove same. That, it is not enough for a party to merely allege that his right to fair hearing has been breached during trial, but he has a duty to show from the record of appeal that his right to fair hearing was infact breached. The cases of Ndulue v. Ibeh (2016) All FWLR (Pt. 822) 1684 and Fagbule v. Rodrigues (2002) 7 NWLR (Pt. 765) 188 were cited in support. The case of Military Governor, Lagos State v. Adeyiga (2001) FWLR (Pt. 83) 2137 was also cited to further submit that, the Brief of Argument filed by the Appellant is devoid of any concrete proof as required by law. That since the Appellant appeared in Court on 28/4/2010, till judgment was delivered on 23/10/2012, the Appellant did not deem it fit to appear in Court to state his case. That, the record of appeal shows that the Appellant was duly served hearing notice against the 30/11/2010 when the PW1 testified. The same thing for 3/2/2011 when the PW1 was cross-examined.
Learned counsel for the 1st Respondent went on to submit that, at the time when the 2nd and 3rd Respondents (1st & 2nd Defendants) closed their case, the case was then adjourned for the Appellant to open his defence, and hearing notice was served on the Appellant but he failed to appear to present his case. That, it is clear from the record of appeal, that the trial Court accorded him the opportunity to present his case but he failed to avail himself of that opportunity. That in the circumstances, the Appellant cannot be heard to complain that his right to fair hearing was breached. The case of Achuzia v. Ogboma (2004) All FWLR (pt. 227) 508 was then cited in support, and to urge us to resolve the issue against the Appellant.
In reply on points of law, learned counsel for the Appellant contended that, the 1st Respondent tried to mislead the Court by misrepresenting the facts of the case. That the 1st Respondent failed to draw the attention of Court to the fact that, the case was struck out on 23/2/2010 for lack of diligent prosecution before it was relisted on 28/4/2020 but the trial proceeded as if the 3rd Defendant/Appellant was not a party to the suit. That, no hearing notice was served on the Appellant against 30/11/2010 when the 1st and 2nd Defendants (2nd & 3rd Respondents) opened and closed their case. We were again urged to resolve this issue in favour of the Respondent.
Now, it is settled law that, the right to fair hearing is a fundamental aspect of jurisdiction. It is a universal concept founded on natural law which states that, no man shall be condemned or damnified without being heard, or given the opportunity to be heard in defence. This concept has been enacted in our constitution; that is the Constitution of the Federal Republic of Nigeria, 1999 (as amended). This is enshrined in Section 36(1) of the Constitution, which is the grundnorm, and it stipulates as follows:
“36. (1) 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”.
This provision has been the subject of judicial interpretation by the Supreme Court, and by extension this Court, in a legion of authorities. Thus, the attributes of the right to fair hearing has been determined to include the right to be heard which in its Latin term is expressed as audi alteram partem. Generally, the essential elements of the right to fair hearing are:
(a) Each party must be given an opportunity to have a counsel of his choice to represent him at the proceedings.
(b) A party must be afforded the opportunity to call all necessary witnesses in support of his case.
(c) He must also have the opportunity to cross-examine or otherwise challenge the evidence of the witnesses presented by the adversary.
(d) At the close of the case, a party or his counsel must be afforded the opportunity to address the Court before judgment.
Those and more are the essential constituents of fair hearing. See Njiokwuemeni v. Ocher (2004) 15 NWLR (Pt. 895) 196; Ndukauba v. Kolomo (2005) 4 NWLR (Pt. 915) 411; Ovunwo v. Woko (2011) LPELR-2841 (SC) and S & D Construction Co. Ltd. v. Ayoku & Anor. (2011) 13 NWLR (Pt. 1285) 487. Essentially therefore, for all the above elements or attributes to be observed, the Court must afford each party the opportunity to be in Court, and that can only be done, where the parties are notified of the date, time, place of the proceedings and the nature of the case he is to meet at the trial. In simple terms, he must be given or issued and served a hearing notice.
The issuance and service of hearing notice on the parties activates the jurisdiction of the Court to hear and determine any suit. Service of hearing notice is therefore a condition precedent to adjudication and failure to comply may result in the entire proceedings being vitiated. Thus, the parties to a case are entitled, as of right to be served hearing notice for proceedings of each day, save where he or his counsel was in Court when the matter was adjourned to another date. See Apeh & Ors. v. PDP & Ors. (2016) LPELR-40726 (SC); Sken Consult Nig. Ltd. v. Ukey (1981) 1 SC 6; NACB Ltd. v. Ozoemelam (2016) 11 NWLR (Pt. 1517) 376; Achuzia v. Ogbomah (2016)11 NWLR (Pt. 1522) 59 and Somai Sonka Co. (Nig.) v. Adzege (2001) FWLR (pt. 68) 1104. Thus, the Supreme Court in Compact Manifold & Energy Services Limited v. Pazan Services Nigeria Limited (2019) LPELR-49221 (SC), held per Galunje, JSC as follows:
“…The issue of service of hearing notice on a party notifying him of the hearing date of matters is very fundamental to the administration of justice. It is the service of hearing notice that confers on the Court the jurisdictional competence to entertain the matter before it. Thus, where a matter is adjourned to a date other than the date the parties had previous notice of hearing, the Court has a duty to notify them of subsequent adjournment. The Court should not predicate its decision on mere assumption that a party must have been served with Court process at one stage and that he should be aware of the subsequent hearing dates”.
The question whether or not a party was served hearing notice at the appropriate time or not, is a question of fact. It is therefore the party who alleges that his right to fair hearing has been breached in that he was not served hearing notice, that has the onus of proving that fact. The issue can be resolved by a consideration of the records because, where a party was unable to attend proceedings on a particular date, the Court must order that hearing notice be served on him for the proceedings of the subsequent date of adjourned, and the Court must make a note of that. On the next date of adjournment, the Court must ensure that such hearing notice was indeed served before the conduct of the proceedings for that date. If it is confirmed that the party was not served, the Court must adjourn the proceedings and fresh hearing notice issued. See Obiozor v. Nnamua (2014) LPELR-23041 (CA); Abdulhamid v. Babagana (2017) LPELR-43393 (CA); Odega v. Olloh(2015) LPELR-24568 (CA); Maikyo v. Itodo (2007) 5 MJSC 60 and Gonzee (Nig.) Ltd. v. NERDC (2005) 13 NWLR (Pt. 943) 634. Thus, in Idara Solomon Ukut v. The State (2016) LPELR-41380 (CA), my learned brother, Otisi, JCA held as follows:
“The Record of Appeal is the process to look to in determining if there has been fair hearing. A record of appeal is presumed to be correct and is binding on the Court and on the parties, the appellate Court relies on the record of appeal in resolving the issues arising for determination in the appeal…Not even information contained in the Briefs of Argument of the respective parties can be relied on to supply missing information, outside the record of appeal”.
The burden therefore, is on the party who complains about a breach of his right to be heard, in that the trial Court failed to give him notice of the hearing, to prove from the conduct of the proceedings on the record, how the breach occurred. See Ajayi v. N.U.R. T. W. (2009) 8 NWLR (Pt. 1144) 423; Onyenobi v. Amadi & Ors. (2013) LPELR-22041 (CA); Imasuen v. University of Benin (2010) 3 NWLR (Pt. 1182) 591 and Newswatch Communications Ltd. v. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt. 993) 144. Thus, in Bill Construction Co. Ltd. v. Imani Sons Ltd/Shell Trustees Ltd. (2006) 19 NWLR (pt. 1013) 1, Onnoghen, JSC (as he then was) said: “It is the person who alleges any breach of the rules of fair hearing that has the burden of proof of same. In the instant case, it is the respondents who alleged before the lower Court that their right to fair hearing was breached that owed therefore the duty to prove same, they have to establish how their civil rights and obligations have been adversely affected by the alleged breach”.
Where the breach of the right to fair hearing has been proved by the evidence on record, the entire proceedings including the judgment, the product of that proceeding will be set aside for being a nullity. Hearing and determination of a cause in breach of the right to fair hearing, will have the effect of depriving the Court of the jurisdiction to have heard and determined the suit, as same will be deemed to have been conducted without jurisdiction and therefore, a nullity. See Onyemeh v. Egbuchulam (1996) 5 NWLR (Pt. 448) 255 at 266-267; Long-John & Ors. v. Blakk & Ors. (1998) LPELR-1791 (SC); Newswatch Communications Ltd. v. Attah (2006) LPELR-1986 (SC); AG; Rivers State v. Ude & Ors. (2006) LPELR-626 (SC) and Inakoju & Ors. v. Adeleke & Ors. (2007) LPELR-1510 (SC). Thus, in Oviarobo v. Ogboe (2015) LPELR-25690 (CA), by learned brother, Barka, JCA observed as follows:
“The position of the law as laid down by the apex Court is that, fair hearing is synonymous with natural justice, an issue clearly at the threshold of our judicial system. Once it has been established that there is a denial of fair hearing as enshrined in Section 36(1) of our Constitution, the whole proceedings automatically become vitiated with a basic and fundamental vice rendering the entire judgment null and void.”
In the instant case, the complaint of the Appellant is that, he was not afforded the opportunity to cross-examine the witnesses that testified for the plaintiff/1st Respondent and the 1st & 2nd Defendants/2nd & 3rd Respondents nor was he given the opportunity to present his case at the trial before judgment was delivered. I have carefully leafed through the entire proceedings of the trial Court as depicted by the record of appeal. The records show clearly that, the Appellant who was the 3rd Defendant, was not a party to the suit at its inception. He was in the course of the proceedings, joined as 3rd Defendant by the Amended Writ of Summons and Amended Statements of Claim. The Appellant then filed a Memorandum of Conditional Appearance on 12/5/2009. The Joinder was made consequent upon the Application of the Plaintiff/1st Respondent which was filed on 9/10/2008 and granted on 28/10/2008. The matter was then adjourned to 09/12/2008 for hearing. There was however, no order that the 3rd Defendant/Appellant be served hearing notice against the next date of adjournment.
The Court, however, did not sit on 09/12/2008 but it sat on 11/3/2009. On that date, the Defendants including the Appellant were not in Court and the matter was further adjourned to 12/5/2009. Hearing notices were then ordered to be issued on the Defendants which include the Appellant. When the matter came up on 12/5/2009 the other parties were not in Court but C. Obiako; Esq appeared for the 3rd Defendant/Appellant, and the matter was adjourned to 23/6/2009 with an order that the absent parties be served hearing notice. When the matter came up on the 23/6/2009 the Defendants including the Appellant were neither present in Court nor represented by counsel despite their presence in Court when the matter was adjourned to that date. However, the learned trial Judge further adjourned the matter to 08/10/2009 for “definite hearing” but no order was given that the Appellant and his co-defendants be served hearing notice for 08/10/2009.
When the matter came up on 08/10/2009, the Defendants including the Appellant and their counsel were not in Court. The matter was then adjourned to 26/11/2009 but no order was made that hearing notice be issued and served on the Defendants including the Appellant. The Court did not sit on 26/11/2009 and the matter was again adjourned to 27/1/2010.
On 27/1/2010, the Defendants and their counsel were absent. However, learned counsel for the Plaintiff/1st Respondent informed the Court that, they had caused hearing notices to be served on the Defendants. The suit was then adjourned to 23/2/2010 for hearing of a motion filed by the 1st & 2nd Defendants/2nd and 3rd Respondents. On 23/2/2010, all the parties, including the Appellant and their counsel were not in Court. Consequently, the suit was struck out as having been abandoned. The trial Court had observed and held as follows:
“No reason has been given for the absence of both parties. It appears the plaintiff has abandoned this case. Consequently, this case is hereby struck out in accordance with Order 35 Rule 2 of the FCT High Court (Civil Procedure) Rules, 2004”.
However, on 28/4/2010, the matter again graced the Cause List of the trial Court. This, time, all the parties, including the 3rd Defendant/Appellant was duly represented by Chigbo Obeako; Esq. On that day, the Plaintiff/1st Respondent’s application to relist the suit was granted and the matter was then ordered to be relisted and further adjourned to the 17/6/2010 for definite hearing. However, on 17/6/2010, the Defendants including the Appellant who were in Court on the previous date of adjournment represented by counsel, were absent in Court and no explanation was given for their absence. The matter was then adjoined to the 29/10/2010 for hearing but no order was made for a hearing notice to be issued and served on the Defendants including the Appellant. On the 29/9/2010 the Plaintiff/ 1st Respondent and the 1st & 2nd Defendants/2nd & 3rd Respondents were in Court by their counsel but the Appellant was absent and unrepresented by counsel. On that date, the 1st & 2nd Defendants/2nd & 3rd Respondents moved their motion to amend their statement of Defence and same was granted. The suit was then adjourned to 30/11/2010 but no hearing notice was ordered to be issued and served on the Appellant. On 30/11/2020, the trial Court recorded proof of hearing notice on the Appellant; and the Plaintiff/1st Respondent called her only witness who testified as the PW1. The PW1 was then stood-down for cross-examination and the matter adjourned to 3/2/2011. No hearing notice was ordered to be issued on the Appellant.
On 3/2/2011, the 3rd Defendant/Appellant and his counsel were not in Court but the learned trial Judge recorded learned counsel for the Plaintiff/1st Respondent as reporting that hearing notice had been served on the 3rd Defendant/Appellant. The PW1 was then cross-examined by learned counsel for the 1st & 2nd Defendants/2nd & 3rd Respondents; and the matter adjourned to the 29/3/2011 for defence but all the parties were not in Court and the Court further adjourned to 17/5/2011 but no hearing notice was ordered to be issued on the parties.
On 17/5/2011, the 3rd Defendant/Appellant was absent. The 1st & 2nd Defendants/2nd & 3rd Respondents called their sole witness who testified as DW1, and was duly cross-examined by the 2nd and 3rd Respondents in this appeal. Learned counsel for the Plaintiff/1st Respondent then applied for:
“…another adjournment to enable the 3rd defendant who hasn’t been coming appear (sic) for their own defence”.
The matter was then adjourned to 12/7/2011 for the defence of the 3rd defendant/Appellant. On 12/7/2011, the trial Court upon satisfying itself that the 3rd Defendant/Appellant had been duly served hearing notice, closed the defence and further adjourned for the Adoption of Written Addresses. After about three adjournments, the parties adopted their Written Addresses; and judgment was delivered on the 23rd day of October, 2012. This has therefore provoked this appeal by the 3rd Defendant/Appellant.
From what I have chronicled above, it is not in doubt that the suit was struck out on the 23rd day of February, 2010 but same was relisted on the 28th day of April, 2010. It is apparent that the Appellant was aware of the striking out of the suit and the relisting of same as he was represented by counsel; Chigbo Obeako on 28/4/2010 when the suit was relisted. He was therefore aware of the next date of adjournment, which was 17/6/2010 but absented himself from Court and no reason was proffered for his absence and that of his counsel. There was one other adjournment, being the 29/9/2010 but the Appellant and his counsel were not in Court and like the previous adjournment, no reason was proffered for their absence. The 1st Respondent who was Plaintiff then opened his case by calling his sole witness. The suit was then adjourned to 3/2/2011 for the cross-examination of PW 1 but the Appellant, despite evidence that he was issued a hearing notice against that date was not in Court.
On 17/5/2011 the 1st and 2nd Defendants/2nd & 3rd Respondents opened their defence when DW1 testified and was cross-examined. The matter was then adjourned to 12/7/2011 for the 3rd Defendant/Appellant to open his defence. Hearing notice was also ordered to be issued and served on the Appellant. However, on 12/7/2011 when the Appellant was to open his defence, neither he nor his counsel was in Court. There was also proof that hearing notice was issued and served on the Appellant against the date allotted him to open his defence. In such circumstance, the learned trial Judge ordered that his case be closed and the 1st Respondent, and 2nd & 3rd Respondents who were the plaintiffs and 1st & 2nd Defendants at the trial Court were ordered to file their Written Addresses. That was done, and the matter proceeded to judgment.
Now, it is apparent from the evidence on record, that the Appellant, aside from filing a Memorandum of Conditional Appearance, which indicates that he intended to contest the competence of the suit against him, did not file any other process. In other words, he did not file any defence in the nature of a statement of defence. Apparently, therefore, the Appellant as 3rd Defendant in the suit did not evince any interest in defending the action. It would appear that, he had chosen to take cover under the canopy of the 1st and 2nd Defendants at the trial. Now that the canopy collapsed, he has decided to brave the elements by coming into the open to claim that the trial Court denied him the right to present his defence; “a defence” he did not present before the trial Court since he did not attempt to file a statement of defence after becoming aware of the Plaintiff’s/ 1st Respondent’s claim against him. The duty of the trial Court was to give him the opportunity to exercise his fundamental right to be heard. The trial Court had no obligation to drag or force him to participate in the proceedings. The trial Court, after presenting him with the opportunity to be heard or present his defence, had done all the constitution required of it, as the Judex.
From what I stated above, the duty of the Court is to give each party to the proceeding adequate time and opportunity of being heard in the matter. Once, the party has been given that opportunity, he must take the benefit, as the exercise of that right is not absolute. The opportunity given to exercise the right to be heard, does not transform into or mean that, the party must exercise that right at his own terms, pace or pleasure, for the right to exercise the right is a double, howbeit triple sword or benefit enuring to the plaintiff, the defence and the Court. Consequently, where a party has been afforded that opportunity to be heard, but fails or refuses to utilize such opportunity, he cannot complain when the Court closes such opportunity at a later stage of the proceedings. He must live with the unpalatable consequences of his dereliction. See Okike v. LPDC (2005) LPELR-2450 (SC); Orugbo v. Una (2002) 16 NWLR (Pt. 792) 175; Federal Housing Authority v. Kalejaiye (2010) LPELR-1267 (SC); Ezechukwu & Anor. v. J. O. C. Onwuka (2016) LPELR-26055 (SC) and Ayoade v. State (2020) LPELR-49379 (SC). Thus, the Supreme Court in Newswatch Communications Ltd. v. Alhaji Aliyu Ibrahim Attah (2006) 12 NWLR (pt. 993) 144 at 171 paras. B- E held that:
“A trial Judge can indulge a party in the judicial process for sometime but not for all times. A trial Judge has the right to withdraw his indulgence at the point the fair hearing principle will be compromised, compounded or will not really be fair as it affects the opposing party who equally yearns for it in the judicial process. At that stage, the party who is not up and doing to take advantage of the fair hearing principle put at his door steps by the trial Judge, cannot complain that he was denied fair hearing…”
See also Bill Construction Co. Ltd. v. Imani & Sons Ltd./ShelI Trustees Ltd. (2006) LPELR-782 (SC); Joel Okunrinboye Export Co. Ltd. & Ors. v. Skye Bank Plc. (2009) LPELR-1618 (SC) and Onyenobi v. Amadi & Ors. (2013) LPELR-22041 (CA). That being so, a party who had the opportunity of being heard, but failed or refused to utilize the opportunity, cannot be heard to complain that his right to be heard was breached.
Put in another way, a party to a suit who already knows or is presumed, on the totality of the available evidence on record, to know of the date for which his case is scheduled to be heard, does not require further notice to be served on him. Thus, where such presumption can reasonably be imputed to him, he cannot validly complain that he was denied of the opportunity to be heard. This is particularly so, where the party involved is represented by counsel, who must be alert to his responsibility as counsel, so as to keep himself abreast of the matter scheduled to come up in Court. See Abiola v. Olawoye (2006) 13 NWLR (Pt. 996) 1 at 23 paras. C-F; A. S. T. C. V. Quorum Consortium Ltd. (2009) 9 NWLR (Pt. 1145) 4 at 35 paras. A-B; Chami v. U.B.A. Plc. (2010) 6 NWLR (Pt. 1191) 474 and Akinlolu v. State (2017) LPELR-42670 (SC). My Lord, Odili, JSC elucidated the point inENL Consortium Ltd. v. Shambilat Shelter (Nig.) Ltd. (2018) LPELR – 43902 (SC) in the following words:
“…This does not mean that a party would be allowed to play hide and seek as an artful dodger from notice of process or hearing notice, all in an attempt to plead non-service so as to scale through the huddle of attending to the hearing, delay the proceedings and thereby obtain a cheap victory. The Courts have built in dispute settling mechanisms whereby the parties must come out in the open to make their cases with their cards on the table and not cunningly or craftily. This has made the Courts come up with its legal principle that when an appellant has been given ample opportunity or chance to present the appeal before the lower Court, he skips the Court, he does so at his own point and would bear the result of the game he has played and cannot invoke his right of fair hearing in Court as a party who seeks fair hearing in Court must also be fair in litigation to the adverse party and to the proceedings…”
I had in the course of this judgment comprehensively analysed the proceedings of the trial Court. The totality of the evidence on the record disclose unequivocally that the Appellant having been duly served the Originating processes of this case was aware of the existence or pendency of the Plaintiff/1st Respondent’s claim(s) against him. He then filed a Memorandum of Conditional Appearance but thereafter remained aloof and did not consider it necessary to file any defence. The evidence also show that he was either served hearing notice or presumed on the records to have knowledge of subsequent adjournments of the case. My finding therefore, is that, the trial Court gave the Appellant and his co-defendants adequate opportunity to be heard in their defence, but while the co-defendants took advantage of the opportunity, the Appellant stayed away, hoping that the co-defendants would provide adequate cover for him. Now that the cover has been blown open by the wind, he cannot now resort to crying wolf by contending that he was not granted the opportunity to be heard. My finding is that he had adequate time and opportunity to present his defence but neglected to do so. The appeal on this issue therefore fails, and the issue is resolved against the Appellant.
Having thus resolved, it could be seen that the appeal has no merit, issue one(1) having been resolved against the Appellant. In so resolving, it should be remembered that issues, 2, 3, 4 and 5 had been struck out as having been abandoned. Ultimately therefore, this appeal lacks merit and is accordingly dismissed. The judgment of the FCT, Abuja High Court of Justice, delivered on the 23rd day of October by Maryam E. Anenih, J in Suit No: FCT/HC/CV/1319/2007 is hereby affirmed.
I award two hundred thousand naira cost (N200,000.00) only, against the Appellant in favour of the 1st Respondent only.
BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been privileged to read in advance, a draft copy of the judgment just delivered by my noble lord, HARUNA SIMON TSAMMANI JCA, the Presiding Justice of the Abuja Division. The judgment had, indeed, covered the field on the only live issue, namely issue one, dealing with the allegation of breach of the right of the Appellant to fair hearing as guaranteed by Section 36(1) of the Constitution of Nigeria 1999 (as amended) and resolved same against the Appellant.
My Lords, the issue of fair hearing, in our law, is a matter of fact. Thus, it is one to be made out by the party who alleges that his right to fair hearing has been breached. It is therefore, not enough for a party to merely allege a breach of the right to fair hearing and then fold his hands akimbo, as was done in this appeal by the Appellant, and expect the Respondents to wriggle out of it. The Appellant must, in addition to the allegation of breach of his right to fair hearing, go forward to place before the Court the relevant facts from which the Court can arrive at the finding that the Appellant’s right to fair hearing was. indeed, breached in the proceedings and decision of the lower Court.
In the leading judgment, it has been demonstrated, and quite admirably too, that there was no breach of the Appellant’s right to fair hearing as both parties were given equal opportunities to be heard and were so heard by the lower Court. It is not, and can never be, the law that the right to fair hearing is breached merely because a party, so alleging, lost his case and therefore, it is only observed if that party had won the case.
In the circumstances of this case as revealed in the printed Record of Appeal, the Appellant’s right to fair hearing was scrupulously observed by the lower Court, and therefore, the allegation of breach of his right to fair hearing, forming the crux of issue one, remained bare and did not stick. It is liable to fail. I hold, and very firmly too, that the appeal lacks merit and is liable to be dismissed for the fuller reasons as elaborately and adroitly marshalled out in the leading judgment. I too hereby dismiss the appeal. I shall abide by the consequential orders made in the leading judgment, including the order as to cost.
BATURE ISAH GAFAI, J.C.A.: I have had a preview of the judgment delivered by my learned brother Haruna Simon Tsarnmani, JCA. I agree with the detailed reasonings expressed thereby. I adopt those reasonings as mine.
I will add however, albeit by way of emphasis only, that the determination of this appeal, in the manner impeccably done in the lead judgment, has once again brought to the limelight the abysmal declining standard in the settlement of Briefs of Arguments by some learned counsel, with dire consequences on the party relying on the presumed expertise of such learned counsel. It is obvious that little or no expertise was demonstrated by the learned counsel for the Appellant in the formulation of the 2nd to 5th Issues for determination in the Appellant’s Brief of Argument leading to the fatal consequence of the Order striking same out. Indeed, the Apex Court and this Court have severally advised counsel to be dutiful in the settlement of Briefs of Arguments for their clients; so as to avoid being the conduit pipe of the client’s waterloo; just as has happened in this appeal. InChukwuemeka Ezeuko vs. The State (2016) LPELR-40046 (SC), the Supreme Court, per Ngwuta, JSC aptly put it thus:
“My lords, the virtue of good formulation of Issues upon which a Brief of Argument in an appeal is predicated is known and appreciated the lack it…”
Again in Garba & Ors vs. The State (2000) LPELR-1306 (SC), the Apex Court held thus:
“This Court has said a number of times that when framing Issues for the determination of appeal care should be taken because it is a very serious part of a Brief. Each Issue must be framed in a clear language and must arise and relate to the Grounds of Appeal which represents the questions in controversy in the particular appeal…”
See alsoSheshe vs. Ibrahim (2013) MUBECO Petroleum Co. Ltd vs. First Bank & Ors. (2015) LPELR–40385 (CA).
Worst of all, the only competent Issue remaining for the Appellant is adjudged unmeritorious; which finding I agree with. Thus, on the whole, the appeal must fail. It so fails and is accordingly dismissed by me too. I abide by the order on cost as made in the lead judgment.
Appearances:
I. E Uzuegbu; Esq with him Patience O. Igbita, Esq. For Appellant(s)
Dr. Olukayode Ajulo; Esq. with him Michael Okejimi; Esq for the 1st Respondent.
Abubakar Musa; Esq for the 2nd & 3rd Respondents. For Respondent(s)