WEST AFRICA PORTLAND CEMENT PLC v. ALAO
(2022)LCN/16613(CA)
In the Court of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, January 20, 2022
CA/L/523/2006
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Adebukunola Adeoti Ibironke Banjoko Justice of the Court of Appeal
Between
WEST AFRICA PORTLAND CEMENT PLC APPELANT(S)
And
ISIAKA ALAO RESPONDENT(S)
RATIO
THE EFFECT OF THE FAILURE OF A PARTY TO BE ISSUED WITH A HEARING NOTICE
It is a settled law that where a party ought to be issued with a hearing notice but none was so done to the effect that such failure to serve makes him absent in Court, he has to all intents and purposes been effectively denied justice which borders on fair hearing and a judgment, ruling or decision given, against him will be rendered null and void. See OKAFOR VS A.G. ANAMBRA STATE (1991)6 NWLR (PT 33) 104. Any failure or neglect to serve hearing notice on a party is an infringement of his right to an opportunity to be heard in his defence. See O. O. OBU VS ARCHIBONG (2009) LPELR (8897) (CA), OGUNDOYIN VS ADEYEMI (2001) 13 NWLR (PT 730) 403. S.B.N. PLC VS CROWN STAR CO. LTD. (2003) 6 NWLR (PT 815) 1 AT 16.
It is a well settled law and practice that a Court of law must not give judgment against a person who has not had the opportunity to defend the suit in the sense that hearing notice which will bring to his notice the date, time and place of the trial has not been served on him. It would amount to a grave error on the part of the judex to proceed to enter judgment or make an order against a party who is shown not to have been given an opportunity to appear in Court. See also SKENCONSULT VS UKEY (1981) 1 SC. 6. PER UMAR, J.C.A.
THE POSITION OF LAW ON THE FAILURE OF A TRIAL COURT TO ISSUE AND SERVE HEARING NOTICE ON AN APPELLANT
The failure of the trial Court to issue and serve hearing notice on the Appellant as required by law constitutes a fundamental breach of the Appellant’s right to fair hearing. The law is trite on the failure to serve a party in a case with hearing notice. Such failure to serve hearing notice indicating clearly when and where the Court will sit constitutes a fundamental irregularity which will ordinarily vitiate the proceedings and render it a nullity. See SKEN CONSULT (NIG) LTD & ANOR V GODWIN SEKONDY UKEY (1981) 1 SC p. 5, OGBUESHI JOSEPH O. G. ACHUZIA V WILSON FIDELIS OGBOMAH (2016) LPELR – 40050. Proceeding conducted in the absence of issuance and service of hearing notice on parties render such proceedings void. This is so because the Court will lack the jurisdiction to entertain the case where any of the parties is not served. See COMPAGNIE GENERAL D.E GEOPHYSIQUE (NIG) LTD CGG NIG LTD V AMINU (2015) LPELR- 24463, MARK V EKE (2004) 5 NWLR (Pt. 865) p. 54, S AND D CONST. CO. LTD V CHIEF BAYO AYOKU AND ANOR (2011) LPELR – 2965, NYAMATI ENTERO LTD V N.D.I.C (2006) ALL FWLR (Pt. 915) p. 411. So also, failure to serve a party with hearing notice will amount to denial of fair hearing. PER UMAR, J.C.A.
THE MEANING OF FAIR HEARING
Fair hearing implies that each party to a dispute before a Court must be accorded adequate opportunity to state his own case. This is the principle of “Audi alteram patem”. See ARIAYEFAH NWAOSU V IBEJIMBA NWAOSU (2000) 4 NWLR (Pt. 653) 351 at 359, OGBUESHI JOSEPH O. G. ACHUZIA V WILSON FIDELIS OGBOMAH (2016) LPELR- 40050. PER UMAR, J.C.A.
THE POSITION OF THE LAW ON WHEN A PARTY IS DENIED FAIR HEARING
It is trite that where a party is denied fair hearing, the outcome of the entire proceedings would be vitiated and nullified. Fair hearing lies in the procedure followed in arriving at the decision and not in the correctness of the decision. See VICTINO FIXED ODDS LIMITED V OJO (2010) 8 NWLR (PT 1197) 486. A correct decision that was reached through an unfair procedure cannot stand. There will be no alternative to setting aside the proceedings and the decision reached that was tainted by lack of fair hearing. See ADEBESIN V THE STATE (2014) LPELR-22694(SC). PER UMAR, J.C.A.
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Lagos State, Ikeja Judicial Division delivered by I.E. Akande J. on 21st April, 2004 wherein the learned trial Judge amongst other reliefs, declared that the termination of the Respondent’s employment by the Appellant vide a letter dated 15th November, 1994 is unlawful, irregular, null and void. The trial Judge consequently ordered the reinstatement of the Respondent in the Appellant company.
BRIEF FACTS OF THE CASE
By a Writ of Summons and Statement of Claim dated 15th July, 1996, the Respondent as Plaintiff at trial claimed against the Appellant as Defendant for the following reliefs:
i. “A Declaration that the purported termination of the Respondent/Plaintiff employment by the Defendant vide letter reference PFF/11/94 dated 15th November, 1994 in unlawful, irregular, null and void.
ii. Declaration that the Respondent/Plaintiff’s employment with the Defendant is still subsisting
iii. An injunction restraining the Defendant from treating the Plaintiff’s services at an end and/or for reinstatement.
iv. An order that the Defendant pay the Plaintiff’s salary and all the entitlements accruing to him from the 15th November, 1994 till the date of judgment.
ALTERNATIVELY
The sum of N6,018,793.60 (Six Million, Eighteen Thousand, Seven Hundred and Ninety Three Naira, Fifty Kobo) only and 870 (Eight Hundred and Seventy Tonnes of cement only or N6,960,000.00 (Six Million, Nine Hundred and Sixty Thousand Naira) only totaling N12,978,793.60 (Twelve Million, Nine Hundred and Seventy Eight, Seven Hundred and Ninety Three naira, sixty kobo) only, being damages for breach of contract of employment committed by the Defendant against the Plaintiff on 15th November, 1994.”
(See Pages 1-6 of the records).
The trial Court, upon the close of the Respondent’s case, foreclosed the Appellant’s right of cross-examining the Respondent’s sole witness by reason of the Appellant’s persistent absence from the proceedings. The Court further foreclosed the Appellant’s right to open its defence for the same reason stated above.
The Court thereafter adjourned for the final address of the Respondent’s counsel and in a considered judgment delivered on 21st April, 2004, the trial Court entered judgment for the Respondent in the following terms:
i. “A declaration that the purported termination of the Plaintiff’s employment by the Defendant vide letter reference PFE/11/94 dated 15th November, 1994, Exhibit C in this proceeding, is unlawful, irregular, null and void and shall be and same is hereby set aside.
ii. A declaration that the Plaintiff’s employment with the Defendant is still subsisting.
iii. The defendant shall and same is hereby ordered to reinstate forthwith the Plaintiff in his former position in the Defendant’s company, whose employment has been established to be still subsisting in this judgment.
iv. An order that the Defendant pay the one month salary that ought to have been paid to the Plaintiff when Exhibit C was given to him together with the modified items in this judgment in paragraph 18 of the Statement of Claim.
v. An order that the Defendant pays the Plaintiff all his entitlements accruing to him including the basic monthly salaries from 15th January, 1995 till the date of this judgment.
vi. The alternative shall be and same is hereby dismissed accordingly.
vii. Cost of N85,000 awarded in favour of the Plaintiff.”
Dissatisfied with the judgment of the trial Court, the Appellant has invoked the appellate jurisdiction of this Court via a notice of appeal dated 21st June, 2004 and filed on the same date. The said notice of appeal containing two grounds of appeal can be gleaned at pages 54 – 58 of the record of appeal.
In line with the rules and practice of this Court, parties filed and exchanged their respective briefs of arguments. L.I. AYEKI ESQ., settled the Appellant’s brief of argument dated 5th August, 2009 and filed on 7th August, 2009. Same counsel settled the Appellant’s reply brief dated 12th October, 2009 and filed on 14th October, 2009. For the determination of the instant appeal, the Appellant’s counsel formulated two issues as follows:
i. Whether the lower Court was right in foreclosing the Appellant’s right to cross-examine and/or open its defence, without the service of a valid hearing notice on the Appellant?
ii. Having regard to the pleadings in this action was the learned trial judge right in holding that the Respondent’s employment subsisted beyond the 15th November, 1994, and therefore, whether in all the circumstances of this case, the proper measure of damages to which the respondent is entitled is not one month salary in lieu of one month notice?”
OLUSEGUN OLATUBOSUN ESQ., settled the Respondent’s brief of argument dated 23rd September, 2009 and filed on 29th September, 2009. The Respondent’s counsel on the other hand formulated three issues for the determination of the appeal to wit:
i. “Whether in the circumstances of the case, the Appellant Defendant had the opportunity of fair hearing in the proceedings?
ii. Whether in the circumstances of this case, the Plaintiff/Respondent is entitled to the awards made by the learned trial Court?
iii. Whether the acts of the Appellant/ Defendant in:
a. Issuing a dud cheque to the Court below of N5,000,000.00,
and
b. Holding on to the judgment sum of N11,005,309.78 without paying same into Court as condition precedent to the hearing of this appeal constitute disobedience and contempt to the Court and therefore constituting abuse of Court process?”
Before delving into the analysis of the submissions and arguments of the respective counsel as contained in their briefs of argument, it is pertinent to consider the propriety of the Respondent’s issue no.3 formulated for the determination of the appeal. As stated in the preceding part of this judgment, the notice of appeal upon which the machinery of this appeal was set in motion contains two grounds of appeal.
The purpose of grounds of appeal is to bring out the complaints of the Appellant against the decision on appeal for the consideration of the appellate Court. It is the ground(s) of appeal that attack(s) the judgment appealed against. See SARAKI V. ANOR V. KOTOYE (1992) LPELR – 3016 (SC); REDEEMED CHRISTIAN CHURCH OF GOD (HAGIAZO PARISH) V. AKADIRI & ANOR (2019) LPELR – 46780 (CA).
Thus, this Court and the Supreme Court frown upon formulating more issues for determination than grounds of appeal as each issue is supposed to have its base and source on one or more grounds of appeal. The Appellant’s counsel in due observance with the long standing principle against proliferation of issues formulated only two issues from the two grounds of appeal encapsulated in the notice of appeal. The Respondent on the hand ran fowl of the rule by formulating three issues from the two grounds of appeal. Thus, allowing the additional issue sought to be raised by the Respondent would amount to endorsing the Respondent’s proliferation of issues for determination. See DUWIN PHARMACEUTICAL & MEDICAL CO. LTD V. BENEKS PHARMACEUTICAL & COSMETICS LTD & ORS (2008) LPELR – 974 (SC); BILLE V. STATE (2016) LPELR – 40832 (SC); OKPONIPERE V. STATE (2013) LPELR – 19931 (SC).
Apart from being afflicted by rule against proliferation of issues, issue no.3 formulated by the Respondent’s counsel does not by any stretch of imagination arise from the judgment of the trial Court. From the said issue, the Respondent seems to be complaining about the attitude of the Appellant during the judgment enforcement process to wit: (i) issuance of a dud cheque by the Appellant to the Court below and (ii) failure of the Appellant to pay the judgment sum into the trial Court’s coffers pending the hearing and determination of the appeal as ordered by the trial Court.
I am of the view that this appeal is not the proper avenue for such complaints notwithstanding their veracity. Without dissipating much judicial energy on a seemingly glaring issue such as proliferation of issues, I agree with the Appellant’s counsel as submitted at paragraph 1.15 of the reply brief that the Respondent’s issue no.3 raised, having not arisen from the judgment of trial Court and the grounds of appeal ought to be discountenanced. Consequently, the Respondent’s issue no.3 is hereby discountenanced.
Having discountenanced the Respondent’s issue no.3, I shall proceed to determine the appeal within the confines of the issues formulated by the Appellant which in my view, are similar to issues 1 and 2 distilled by the Respondent.
ARGUMENTS AND SUBMISSIONS OF COUNSEL ON ISSUE NO.1
On whether the Court below was right in foreclosing the Appellant’s right to cross-examine the Respondent’s sole witness and/or to open its defence, counsel for the Appellant submitted that that the lower Court was wrong in foreclosing the Appellant’s case, when it was evident on the face of the record that the Appellant was not notified of the proceedings of that day. Counsel further submitted that failure of the trial Court to issue and serve on the Appellant, hearing notice of the next adjourned date from the 28th October, 2002 when the Court noticed that the Appellant was absent in Court, before proceeding to foreclose the Appellant from opening its defence and giving judgment against it amounts to a denial of fair hearing.
Counsel chronicled the events on record in respect of the appearances of parties and counsel at trial and submitted that having taken these proceedings in the absence of the Appellant, the Court could have adjourned for mention. That where the Court adjourns for mention, the absent party, which is the Appellant in the instant appeal ought to have been notified by Court.
It was the contention of the Appellant’s counsel that on 6th November, 2003 when the trial Court foreclosed the Appellant’s right to cross-examine the PW1 in the absence of the Appellant, the Court ought to have adjourned proceedings to enable Appellant open its defence. He contended further that the trial Court foreclosed the Appellant’s right to open its defence on the said day at the instance of the Respondent’s counsel and adjourned for address.
The Appellant’s counsel further submitted that having foreclosed the Appellant’s right to cross-examine and open its defence and adjourning for address, the Appellant was also entitled to have been notified of the adjourned date for address despite the denial of the opportunity to cross-examine and defend, that the Appellant had a constitutional right to address the Court as the Appellant could have rested its case on that of the Respondent and address the Court on points of law. Reference was made to the cases of FALADU V. KWOI (2002) FWLR PT.113 PAGE 365 AT 375; JULIUS BERGER VS FEMI (1993) 5 NWLR PT.295 PAGE 612 AT 613; SCOTT-EMUAKPOR V. UKAVBE (1975) 12 SC 41; CREDIT ALLIANCE FIN. SERV. LTD V. MALLAH (1998)10 NWLR (PT.569) PAGE341; AGENA V. KATSEEN (1998)3 NWLR (PT.543) PAGE 560 AT 565 PARAS D.
In the final analysis of issue no.1, counsel urged this Court to resolve this issue in favour of the Appellant and against the Respondent.
In response to the issue predicated on denial of fair hearing, the Respondent’s counsel submitted that by the records of the Court below at pages 18 – 32, and by the assertion of the Appellant at page 3 item 2.2 of the Appellant’s brief of argument, both parties attended the Court and participated actively in the proceedings. Counsel submitted further that however, on 29/6/03, the Appellant chose to withdraw its appearance and as a result, abandoned its case despite the fact that it was adequately notified of the date of hearing. The Court was referred to pages 16 – 17 of the Records. That the Appellant admitted this much in its Appellant’s Brief of Argument at Page 4, paragraph 2.4 that the Appellant copiously stated that it was in the proceedings for at least 32 times until it chose not to come to Court again even when it was notified by a Motion on Notice dated 18th June, 2003. Reference was made to page 16 – 17 of the Records of appeal.
It was the submission of the Respondent’s counsel that the Appellant by its admission, had the opportunity of fair hearing but was negligent in handling the affairs of their offices and this fault cannot be ascribed to either the trial Court or the Respondent. That the Appellant had the opportunity created by the motion on notice dated 18th June, 2003, but it chose to sleep and continued in its slumber and that its non-diligence cannot be visited on either the Court or the Respondent as fair hearing is a right to all parties in a suit. Reference was made to the cases of NEWSWATCH COMMUNICATIONS LIMITED V ATTAH (2006) 12 NWLR (Pt. 993) 144 SC; BANNA V TELEPOWER NIGERIA LIMITED (2006) 15 NWLR (PT 100) 1985 C RATIOS 3, 7, 8 & 9.
It was the submission of the Respondent’s counsel that it was the Appellant who refused to come to Court despite notice and thus resorting to the principle of fair hearing as a shield and magic wand cannot avail the Appellant. Reliance was placed on the cases of OODU’A INVESTMENT LIMITED V. TALABI (1997) 10 NWLR (pt. 523) SC 1; OFOEGBU V IHEANACHO (2001) 4 NWLR (pt. 703) 219 Ratio 4 at Page 221; MUHAMMED S.M.D. V. TERSOO KPELAI (2001) 6 NWLN (pt. 710) 700 at 702-704; OFOEGBU V IHEANACHO (2001) 4 NWLR (pt. 703) 221; AG. RIVERS STATE V. UDE (2006) 17 NWLR (pt. 1008) 436 SC.
Counsel therefore urged this Court to resolve the issue in favour of the Respondent. Save for the aspect of Appellant’s reply brief challenging the propriety of the Respondent’s issue no.3 already discountenanced, the submissions and arguments of the Appellant’s counsel in the reply brief are mere rehash of the Appellant’s brief. The law is trite that the purpose of a reply brief is solely to reply to new issues raised in the Respondent’s brief of argument and not to re-argue the Appellants’ case afresh. After all, repeating an argument all over again will not make it more correct than it already is. SeeKALU V. STATE (2017) LPELR – 42101 (SC); ABDULLAHI V. MILITARY ADMINISTRATOR & ORS (2009) LPELR – 27 (SC); ONWUDIWE V. F.R.N. (2006) LPELR – 2715 (SC).
RESOLUTION OF ISSUE NO.1
It is a settled law that where a party ought to be issued with a hearing notice but none was so done to the effect that such failure to serve makes him absent in Court, he has to all intents and purposes been effectively denied justice which borders on fair hearing and a judgment, ruling or decision given, against him will be rendered null and void. See OKAFOR VS A.G. ANAMBRA STATE (1991)6 NWLR (PT 33) 104. Any failure or neglect to serve hearing notice on a party is an infringement of his right to an opportunity to be heard in his defence. See O. O. OBU VS ARCHIBONG (2009) LPELR (8897) (CA), OGUNDOYIN VS ADEYEMI (2001) 13 NWLR (PT 730) 403. S.B.N. PLC VS CROWN STAR CO. LTD. (2003) 6 NWLR (PT 815) 1 AT 16.
It is a well settled law and practice that a Court of law must not give judgment against a person who has not had the opportunity to defend the suit in the sense that hearing notice which will bring to his notice the date, time and place of the trial has not been served on him. It would amount to a grave error on the part of the judex to proceed to enter judgment or make an order against a party who is shown not to have been given an opportunity to appear in Court. See also SKENCONSULT VS UKEY (1981) 1 SC. 6.
In the instant appeal, the trial Court on 6th November, 2003 at page 31 of the record of appeal foreclosed the Appellant’s right to cross-examine the Respondent’s sole witness in view of the Appellant and its counsel absence from the proceedings, however, before doing this, the trial Court ought to ensure that the Appellant was served with the requisite hearing notice. There was nothing in the record of the Court to show that Hearing Notice was issued and served on the Appellant suggesting that the suit was adjourned for cross-examination of the Respondent’s sole witness on the date its right of cross-examination was foreclosed. Notwithstanding a party’s persistent absence from the proceedings, the duty is on the trial Court to notify all parties personally of the next date of adjournment. See ATTORNEY GENERAL RIVERS STATE V UDE (2006) 6-7 SC 54, IMMINENT NIGERIA COMPANY V PRUDENTIAL CO-OPERATIVE MICRO FINANCE BANK (NIGERIA) LTD (2014) LPELR 22700.
The failure of the trial Court to issue and serve hearing notice on the Appellant as required by law constitutes a fundamental breach of the Appellant’s right to fair hearing. The law is trite on the failure to serve a party in a case with hearing notice. Such failure to serve hearing notice indicating clearly when and where the Court will sit constitutes a fundamental irregularity which will ordinarily vitiate the proceedings and render it a nullity. See SKEN CONSULT (NIG) LTD & ANOR V GODWIN SEKONDY UKEY (1981) 1 SC p. 5, OGBUESHI JOSEPH O. G. ACHUZIA V WILSON FIDELIS OGBOMAH (2016) LPELR – 40050. Proceeding conducted in the absence of issuance and service of hearing notice on parties render such proceedings void. This is so because the Court will lack the jurisdiction to entertain the case where any of the parties is not served. See COMPAGNIE GENERAL D.E GEOPHYSIQUE (NIG) LTD CGG NIG LTD V AMINU (2015) LPELR- 24463, MARK V EKE (2004) 5 NWLR (Pt. 865) p. 54, S AND D CONST. CO. LTD V CHIEF BAYO AYOKU AND ANOR (2011) LPELR – 2965, NYAMATI ENTERO LTD V N.D.I.C (2006) ALL FWLR (Pt. 915) p. 411. So also, failure to serve a party with hearing notice will amount to denial of fair hearing.
Fair hearing implies that each party to a dispute before a Court must be accorded adequate opportunity to state his own case. This is the principle of “Audi alteram patem”. See ARIAYEFAH NWAOSU V IBEJIMBA NWAOSU (2000) 4 NWLR (Pt. 653) 351 at 359, OGBUESHI JOSEPH O. G. ACHUZIA V WILSON FIDELIS OGBOMAH (2016) LPELR- 40050.
The Appellant haven not been properly notified of the sitting of the Court on 6th day of November, 2003, i.e. the day his right to cross-examine the Respondent’s sole witness and open his defence was foreclosed, rendered the proceeding conducted on that day a nullity. The issue of the Appellant or its counsel persistently absent from the proceeding as contended by the Respondent in my humble view is of no moment. As opposed to the Respondent’s counsel’s contention that the Appellant and its counsel were persistently absent from the proceedings, having perused the record of appeal, the Appellant’s counsel was present in Court on 9th October, 2001, 14th January, 2002, 26th February, 2002, 15th April, 2002, 10th July, 2002, 30th September, 2002, 16th December, 2002, 13th February, 2003, 10th March, 2003. (See pages 24 – 29 of the record of appeal). It is important to state that in almost all the aforementioned dates, the proceedings were adjourned mostly by reason of the absence of the Respondent and his counsel. The case was struck out a couple of times for want of diligent prosecution on the part of the Respondent but was however relisted on the application of the Respondent’s counsel. Looking at these events, the trial Court ought to have been circumspect in foreclosing the appellant’s right to cross-examine the Respondent’s sole witness and to open its defence just because the Respondent’s counsel stated at page 31 of the record of appeal that:
“Mr. Olatunbosun says the Defendant does not want to cross-examine PW1 as the Counsel have been absent in Court consistently. He wants the Court to foreclose the Defendant right to cross-examine PW1.
The Court hereby foreclose the right of the Defendant to cross-examine PW1 in view of both the Defendant and Counsel persistent absence in the proceeding.”
On that note, I am of the fervent view that the Appellant was not issued with the proper and necessary hearing notice of the sitting of the Court of 6th day of November, 2003 when the Appellant’s right to cross-examine the Respondent’s sole witness and open its defence was foreclosed. I therefore resolve the issue against the Respondent and in favour of the Appellant.
It is trite that where a party is denied fair hearing, the outcome of the entire proceedings would be vitiated and nullified. Fair hearing lies in the procedure followed in arriving at the decision and not in the correctness of the decision. See VICTINO FIXED ODDS LIMITED V OJO (2010) 8 NWLR (PT 1197) 486. A correct decision that was reached through an unfair procedure cannot stand. There will be no alternative to setting aside the proceedings and the decision reached that was tainted by lack of fair hearing. See ADEBESIN V THE STATE (2014) LPELR-22694(SC).
Flowing from the hills of the foregoing, having held that the proceedings of the trial Court is tainted by lack of fair hearing, the said proceeding is hereby set aside. Any attempt to delve into the second issue formulated for the determination of this appeal is tantamount to drawing water from an empty well.
On the whole, the judgment of the trial Court delivered by I.E. Akande J. on 21st April, 2004 wherein the learned trial Judge amongst other reliefs declared that the termination of the Respondent’s employment by the Appellant vide a letter dated 15th November, 1994 is unlawful, irregular, null and void and consequently ordered the reinstatement of the Respondent in the Appellant’s company is hereby set aside.
In the circumstance of this appeal, I asked what is the proper consequential order to make. Section 15 of the Court of Appeal Act, provide inter alia, that the Court of appeal may from time make any order necessary for determining the real question in controversy in the appeal and may amend any defect or error in the record of appeal and may direct the trial Court to inquire into all certify its finding on any question which the Court of appeal thinks fit to determine before final judgment in the appeal….. or in the case of an appeal from Court below, in that Court appellate jurisdiction order the case re-heard by Court of competent jurisdiction. See Saliu vs. Wasiu 2016 NWLR (Pt. 1506; Iyaji vs. Eyigebe (1987)3 NWLR (Pt. 61) 523 AT 530.
In view of the powers conferred on this Court in Section 15 of the Court of Appeal Act, the case is hereby remitted to the President National Industrial Court for retrial, being the Court with the jurisdictional competence to entertain and determine labour related matters by virtue of Section 254(C) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Parties shall bear their respective costs.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in draft, the erudite leading judgment delivered by my learned brother, Abubakar Sadiq Umar, JCA. I endorse in toto the legal reasoning and conclusion in it.
An erosion of a citizen’s inviolable right to fair hearing carries with it a miscarriage of justice. Where a party’s right to fair hearing is violated, the law insists that an appellate Court returns the case to the trial Court so that the injured party will be heard. In that wise, the appellate Court has the licence of the law not to attend to any other issues in the appeal in order not to prejudice the issues that may germinate during the de novo proceeding. To this end, I too allow the appeal in the manner ordained in the leading judgment. I abide by the consequential orders decreed therein.
ADEBUKUNOLA ADEOTI IBIRONKE BANJOKO, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, ABUBAKAR SADIQ UMAR, JCA and I am in agreement with him.
There can be no over-emphasising the importance of a hearing notice in the determination of a matter in Court. How can a party that is blissfully unaware of a matter against him defend that matter? It is settled law that where a party ought to be issued with a hearing notice and more is issued, resulting in the absence of that party in Court, that party has thereby been denied a fair hearing. A judgment or ruling delivered against him in such circumstances will be rendered null and void. See MADAM AKON IYOHO VS E.P.E. EFFIONG ESQ & ORS (2007) NSCQR VOLUME 30 PAGE 207.
Based on the foregoing and the careful analysis done by my learned brother, I hereby adopt the reasoning and the conclusion reached by him same as mine.
I hereby equally found this appeal meritorious and order that the case file be transferred to High Court of Lagos State for re-assignment to another Judge for adjudication.
Appearances:
NO APPEARANCE For Appellant(s)
NO APPEARANCE For Respondent(s)