ZARAMI v. ALIYU
(2020)LCN/15830(CA)
In the Court of Appeal
(GOMBE JUDICIAL DIVISION)
On Wednesday, November 11, 2020
CA/G/29/2020
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Uzo Ifeyinwa Ndukwe-Anyanwu Justice of the Court of Appeal
James Gambo Abundaga Justice of the Court of Appeal
Between
KAKA ZARAMI APPELANT(S)
And
MAIRO ALIYU RESPONDENT(S)
RATIO:
PRINCIPLE OF LAW ON THE ISSUE OF JURISDICTION
It is trite that when the jurisdiction of a Court is challenged, the Court will take umbrage under S.6 of the 1999 Constitution to consider the issue challenged to decide, whether it has the jurisdiction to entertain the appeal. ADELEKE Vs OSHA (2006) 16 NWLR (pt 1006) pg 608. EGBEBU Vs IGP (2006) 5 NWLR (PT 972) PG 146. It is proper for a party on appeal to raise the issue of jurisdiction without obtaining the leave of the Appellate Court. The issue of jurisdiction being fundamental can be raised at any stage of the proceedings without leave of the Court. However, an issue of jurisdiction cannot be raised in a vacuum; there must be materials in the proceedings to sustain the submission on jurisdiction, Unilorin vs Adeniran (2007) 6 NWLR pt 1031 pg 498 MAKINDE VS OJEYINKA (1997) 4 NWLR pt 497 pg 80, H. R. Ltd vs F. INV LTD (2007) 5 NWLR pt 1027 pg 326. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
WHAT IS FAIR HEARING?
In ARIORI VS MURAINO ELEMO (1983) LPELR 552, OBASEKI JSC held
“That fair hearing, therefore, must mean a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause”
In INEC VS MUSA (2003) LPELR 24927, TOBI JSC held that
“Fair hearing in essence means giving equal opportunity to the parties to be heard in the litigation before the Court. Where parties are given opportunity to be heard, they cannot complain of breach of the fair hearing principles.” UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
THE TRUE TEST OF FAIR HEARING
It has been said that the true test of a fair hearing,… “is the impression of a reasonable person who was present at the trial, whether from his observation, justice has been done in the case” Per ADEMOLA JSC in MOHAMMED vs KANO N. A (1968) LPELR 25487. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
ESSENCE OF SERVICE OF COURT PROCESSES
The essence of service is to ensure that a party is put on notice of the pending litigation against him. Failure to serve process of Court where service of process is required renders null and void an order made against the party who should have been served. TUBONEMI VS DIKIBO (2006) 5 NWLR PT 974 PG 565. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
CONSEQUENCE OF NON-SERVICE OF COURT PROCESSES
Service of process is vital under due process of law. GUDA VS KITTA (1999) 12 NWLR PT 629 PG 21. Any judgment based on a process, which is not served is liable to be set aside. Hypolite Vs Egharevba (1998) 11 NWLR pt 575 pg 598. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
FAILURE TO GIVE NOTICE OF PROCEEDINGS
Failure to give notice of proceedings to an opposing party in a case where service of process is required is a fundamental omission which renders such proceedings null and void because the Court has no jurisdiction to entertain it. Tubonemi vs Dikibo (supra) Ononye Vs Chukwuma (2005) 17 NWLR pt 955 pg 90 Mark vs Eke (2004) 5 NWLR pt 865 pg 54. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
WHETHER AN APPELLATE COURT CAN EXERCISE JURISDICTION TO CORRECT THE ERRORS OF THE LOWER COURT THAT HAS NO JURISDICTION.
“It is settled law that an appellate Court cannot exercise jurisdiction in a matter once the lower Court or the Court below is without jurisdiction. An appellate Court can only exercise jurisdiction to correct the errors of the lower Court or the Court below. Thus, once an appellate Court has decided that the lower Court or the Court below had no jurisdiction, it has no appellate jurisdiction of its own to exercise. Per OGBUAGU JSC in EHUWA vs ONDO STATE INDEPENDENT ELECTION COMMISSION (2006) LPELR 1056. See also AKINBOBOLA VS PLISSON FISKO Nig. Ltd (1991) 1 NWLR pt 167 pg 270. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
POSITION OF LAW ON BREACH OF FAIR HEARING
It is trite law that once there is a breach of fair hearing the whole proceeding in the course of which the breach occurred and the decision arrived at by the Court becomes a nullity.
ANPP VS INEC (2004) 7 NWLR (pt 871) PG 16, ALL PEOPLE PARTY VS OGUNSOLA (2002) 5 NWLR (PT 761) PG 484. UZO IFEYINWA NDUKWE-ANYANWU, J.C.A.
UZO IFEYINWA NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Borno State sitting as a Court of first instance delivered by Hon. Justice B. A. Waziri on 23rd October, 2019.
The brief facts of this appeal as recapped by the Appellant in this case who was the claimant in the Court below is as follows:-
The appellant, as the claimant sued one Mr. Haruna Mari and Mairo Aliyu at the initial stage of the suit. Thereafter, the second defendant filed her statement of defence and counter/claim. At the stage of pre-trial, the claimant withdrew his suit earlier filed. Thereafter, same was struck out by the lower Court but the counter-claim filed by the 2nd defendant in the main suit stands and the name of Haruna Mari being the 1st defendant on the main suit was struck out as well by the order of the lower Court. The Amended counter claim and the statement of defence formed the record in page 20 to 73 of the record of the lower Court. The respondent’s claim is that she is the lawful holder of the Statutory Right of Occupancy in and over plot No. 196, measuring about 1500 sq. meters situate on BOTP/122, Residential Layout, Maiduguri, covered by Right of Occupancy No: BO/25293/7 granted by the Borno State Government and is therefore, the rightful beneficiary thereof. The lower Court delivered its judgment on 23rd day of October, 2019 in favour of the respondent, the appellant was aggrieved, and hence the present appeal.
The Appellant filed his notice and seven (7) grounds of appeal on 4th November, 2019. The Appellant filed his Appellant’s brief on 24th April, 2020. The Appellant’s reply brief was filed on 9th September, 2020.
The Appellant in his brief articulated four (4) issues for determination as follows:
1. Whether the lower Court is right when it delivered its judgment in favour of the respondent without considering the facts, that the grant covering the land in dispute was never tendered in evidence before it.
2. Whether the lower Court was right in adopting the written address of respective parties without giving a chance to the appellant who was within time to file his reply on the point of law.
3. Whether the lower Court was right in allowing the respondent to amend and add witness statement on oath at the stage of taken evidence and after the pre-trial conference.
4. Whether the judgment of the Court is against the weight of evidence.
The Respondent in her brief filed on 6th April, 2020 articulated two (2) issues for determination as follows:
1) Whether the trial lower Court embarked on any prejudicial procedure that occasioned miscarriage of justice against any of the parties? (distilled from grounds 1, 3, 5 and 8 of the notice and grounds of appeal)
2) Whether the decision of the trial Court is against weight of evidence.
The second issue of the Appellant touch on the jurisdiction of the Court and must be treated first before delving properly into the main appeal if the Court has jurisdiction.
It is trite that when the jurisdiction of a Court is challenged, the Court will take umbrage under S.6 of the 1999 Constitution to consider the issue challenged to decide, whether it has the jurisdiction to entertain the appeal. ADELEKE Vs OSHA (2006) 16 NWLR (pt 1006) pg 608. EGBEBU Vs IGP (2006) 5 NWLR (PT 972) PG 146. It is proper for a party on appeal to raise the issue of jurisdiction without obtaining the leave of the Appellate Court. The issue of jurisdiction being fundamental can be raised at any stage of the proceedings without leave of the Court. However, an issue of jurisdiction cannot be raised in a vacuum; there must be materials in the proceedings to sustain the submission on jurisdiction, Unilorin vs Adeniran (2007) 6 NWLR pt 1031 pg 498 MAKINDE VS OJEYINKA (1997) 4 NWLR pt 497 pg 80, H. R. Ltd vs F. INV LTD (2007) 5 NWLR pt 1027 pg 326.
The Appellant submitted that he was not allowed to file his Appellant’s reply even though he was within time to file his reply brief.
I will like to recount what happened at the lower Court on 7th August, 2019.
The counter/claimant Respondent’s counsel Z. M Umar was represented by A. Haruna. The counsel for the defendant/Appellant S. Ali was absent from Court without any excuse.
The Court however, held that the defendants written address, already filed and served on 6th August, 2019 would be deemed as adopted and the Court would act on it. The counter claimant adopted his written address filed on the 6th of August, 2019. Thereafter, the Court adjourned for judgment.
The counter claimant filed its written address on 7th August, 2019. Thereafter, even though the defendant was absent in Court he still was within the (7 days) time to file his reply brief.
The proper thing the Court should have done at that stage is to adjourn the matter to another date to allow the defendant to file his reply if he desires. As it is, the defendant had been shut out of his constitutional right to file his reply.
See Order 34 Rule 10 of the High Court (Civil Procedure) Rules of Borno State 2017 which states as follows
“the party who files the first written address shall have the right to reply on points of law only. The reply shall be filed within 7 days of service after service of the other party’s written address”
By the time the trial Judge adjourned for judgment, the defendant had 7 days within which he could have filed his reply, if he so wishes. This denial robed the Court of the necessary vires to adjudicate on this case. This procedure adopted by the trial judge has shut the defendant out from doing his case the way he deemed fit. The procedure adopted by the Court falls short of fair hearing for the defendant, now Appellant. See SAIBU VS KWARA STATE POLYTECHNIC ILORIN (2008) LPELR 4524.
In ARIORI VS MURAINO ELEMO (1983) LPELR 552, OBASEKI JSC held
“That fair hearing, therefore, must mean a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause”
In INEC VS MUSA (2003) LPELR 24927, TOBI JSC held that
“Fair hearing in essence means giving equal opportunity to the parties to be heard in the litigation before the Court. Where parties are given opportunity to be heard, they cannot complain of breach of the fair hearing principles.”
The right to fair hearing is a very essential right for a person to secure justice. A fair hearing connotes or involves a fair trial and a fair trial of a case consist of the whole hearing. Where the person alleging breach of fair hearing has established it, it follows that a breach of fair hearing in trials vitiates such proceedings rendering same null and void.
The Appellant was not given an opportunity to file and serve his reply which he was still within time to file. The Respondent in this appeal, though this breach was argued by the Appellant as his second issue, failed or neglected to make any response on the issue of this breach.
It has been said that the true test of a fair hearing, it was suggested by counsel,
“is the impression of a reasonable person who was present at the trial, whether from his observation, justice has been done in the case” Per ADEMOLA JSC in MOHAMMED vs KANO N. A (1968) LPELR 25487.
The defendant/Appellant was denied fair hearing in the lower Court when he was not given the opportunity to present his case the way he would have liked. By not given him an opportunity to present his case the way he would have liked. By denying him the opportunity to file and serve his reply since he had seven (7) days from the day the Respondent served him.
The Appellant also complained that he was not served the Respondent’s written address. From the (supplementary) Record of Appeal, it showed that one Ibrahim Isa Musa who was served on 7th August, 2019, was not the counsel on record. It would be taken that the Appellant’s counsel was not even served with the Respondent’s written address.
The essence of service is to ensure that a party is put on notice of the pending litigation against him. Failure to serve process of Court where service of process is required renders null and void an order made against the party who should have been served. TUBONEMI VS DIKIBO (2006) 5 NWLR PT 974 PG 565.
Service of process is vital under due process of law. GUDA VS KITTA (1999) 12 NWLR PT 629 PG 21. Any judgment based on a process, which is not served is liable to be set aside. Hypolite Vs Egharevba (1998) 11 NWLR pt 575 pg 598.
It is clear from the return of service in the supplementary record of Appeal filed on 27th March, 2020 but deemed properly compiled and transmitted on 14th September, 2020. The service of the Respondent’s written address was served on a person whose address was not what was stated as an address for service of the process. Address for service was
“the Defendant … her counsel S. Ali Esq Nubwa Chambers No. 38 Baga Road Maiduguri Borno State.”
However, the person who was served with the hearing notice was one Ibrahim Isa Musa at Gombola Road Opposite Giwa Barracks. One wonders where this individual surfaced from to be served with hearing notice.
Failure to give notice of proceedings to an opposing party in a case where service of process is required is a fundamental omission which renders such proceedings null and void because the Court has no jurisdiction to entertain it. Tubonemi vs Dikibo (supra) Ononye Vs Chukwuma (2005) 17 NWLR pt 955 pg 90 Mark vs Eke (2004) 5 NWLR pt 865 pg 54
“It is settled law that an appellate Court cannot exercise jurisdiction in a matter once the lower Court or the Court below is without jurisdiction. An appellate Court can only exercise jurisdiction to correct the errors of the lower Court or the Court below. Thus, once an appellate Court has decided that the lower Court or the Court below had no jurisdiction, it has no appellate jurisdiction of its own to exercise. Per OGBUAGU JSC in EHUWA vs ONDO STATE INDEPENDENT ELECTION COMMISSION (2006) LPELR 1056. See also AKINBOBOLA VS PLISSON FISKO Nig. Ltd (1991) 1 NWLR pt 167 pg 270.
The trial Court had breached one of the two pillars of justice, Audi alterem partem. By not allowing the Appellant a right of reply when he still had time to do so.
From the foregoing, the Appellant’s right of fair hearing was breached thereby, denying the Court the necessary vires to proceed. It is trite law that once there is a breach of fair hearing the whole proceeding in the course of which the breach occurred and the decision arrived at by the Court becomes a nullity.
ANPP VS INEC (2004) 7 NWLR (pt 871) PG 16, ALL PEOPLE PARTY VS OGUNSOLA (2002) 5 NWLR (PT 761) PG 484.
The trial in the Court below is a nullity. The Appellant’s right of fair hearing having been breached.
This appeal is meritorious. It is allowed. The Court hereby orders suit NO BOHC/MG/CV/60/2018 from whence this appeal stemmed to be transmitted to the Chief Judge Borno State for assignment to another judge for re-hearing.
Each party is to bear its own cost of this appeal.
JUMMAI HANNATU SANKEY, J.C.A.: I had the privilege to read in draft the lead Judgement of my learned brother, Ndukwe-Anyanwu, J.C.A. I agree with the reasoning and conclusion therein, and will only add a few words in furtherance of this agreement.
The facts of the case leading to this Appeal are straightforward. The Respondent/Counter-Claimant, having filed and served his final written address, the Appellant/Defendant was deprived of the right to file his Reply to the Respondent/Claimant’s written address, even though he was still within his time, 7 days, as prescribed by Order 34 Rule 10 of the High Court (Civil Procedure) Rules of Borno State, 2017, to do so. As a consequence, he was shut out of the proceedings at that stage of the proceedings and was therefore not given an equal opportunity to put forward his case. In other words, the trial Court did not make available a level playing field for the parties. This led to a lack of fair hearing to the Appellant.
The issue raised herein is quite fundamental. It is well settled that any proceedings conducted in breach of a party’s fundamental right to fair hearing, which is guaranteed by Section 36 of the 1999 Constitution, renders the entire proceedings null and void.
That is why the Supreme Court in Kotoye V CBN (1989) 1 NWLR (Pt. 98) 419, 488, C-D, held thus:
“The rule of fair hearing is not a technical doctrine. It is one of substance. The question is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing. The order or Judgement thus entered is bound to be set aside. This is because such an order is against the rule of fair hearing, one of the twin pillars of natural justice, which is expressed in the maxim: audi alterem partem.”
See also other decisions of the Supreme Court in Wagbatsoma v. FRN (2018) LPELR-43722(SC) 29-30, D, per Kekere-Ekun, JSC; Hon. Justice Titus Adewuyi Oyeyemi (Rtd) v. Hon. Timoth Owoeye (2017) LPELR-41903(SC) 56, B-E.
Thus, the right of the Appellant to fair hearing having been clearly breached, the proceedings of the trial Court are null and void, and deserve to be set aside.
It is for this reason and the more comprehensive reasons in the lead Judgement that I also find that the Appeal has merit. It succeeds and is allowed. I abide by the Orders made in the lead Judgement, inclusive the Order as to cost.
JAMES GAMBO ABUNDAGA, J.C.A.: I have read the Judgment of my learned brother, Uzo I. Ndukwe-Anyanwu, JCA.
I am in agreement with his Lordship that by shutting out the Appellant from filing his reply on point of law to the Respondent’s written address, which in itself from the record of service cannot be said to have been served on the Appellant, the latter’s right to fair hearing was breached. Any proceeding inflicted with denial of a party’s right of fair hearing no matter how well conducted is null and void. Therefore, the Judgment of the lower Court cannot escape this fatal consequence.
I am therefore on the same page with my learned brother on his conclusion that this is meritorious. It is therefore allowed, the resultant effect of which is that the Judgment of the lower Court is set aside. I abide by the consequential order made in the lead Judgment remitting Suit No. BOHC/MG/CV/60/2018 for hearing before another Judge.
Appearances:
S. Ali, with him, R. Hamman (Mrs) Esq. For Appellant(s)
Z. M. Umar Esq. For Respondent(s)
