Alhaji Aminu Ibrahim V. Nigeria Universal Bank Ltd (2001)
LawGlobal-Hub Lead Judgment Report
MAHMUD MOHAMMED, J.C.A.
This is an appeal against the judgment of the Kaduna State High Court of Justice sitting at Kafanchan and delivered by Mukaddas J. on 11/5/98. The respondent as plaintiff took out a writ of summons under the undefended list and claimed against the appellant as defendant before the Kafanchan Judicial Division of the Kaduna State High Court, the sum of N259, 448.67k, with 21% interest from 30/8/97 till judgment and 10% interest from the date of judgment being accumulated loans, overdrafts and interest thereon as at 29/8/97. When the undefended suit came up for hearing before the lower court on 25/2/98, there was no proof of service on the appellant who was the defendant and consequently, the matter was adjourned to 31/3/98 for service to be effected on the appellant.
When the case came up for hearing on 31/3/98, the appellant who was duly served, was represented by counsel who filed a motion dated 27/3/98 for extension of time to file and serve his notice of intention to defend the suit together with the affidavit of defence. As the appellant’s counsel was not ready to move the appellant’s motion on 31/3/98, at the instance of the appellant applicant, both the motion and the undefended suit were adjourned for hearing on 11/5/98. However on 11/5/98 when the matter came up for hearing as scheduled, only the respondent’s counsel was in court while the appellant was absent and not represented by counsel. There upon the undefended suit proceeded to hearing at the instance of the respondent’s counsel and judgment was entered for the respondent on the same date 11/5/98 with neither the respondent’s counsel nor the learned trial judge saying anything on the appellant’s motion for extension of time to file notice of intention to defend the suit which was also slated for hearing the same day.
The Defendant against whom judgment had been entered who is now the appellant before this court, aggrieved by that judgment, has now appealed against it to this court. The notice of appeal filed on 4/8/98 contains the following two grounds of appeal.
“FIRST GROUND
That the trial judge contravened the fundamental right of the Appellant to a fair hearing as entrenched in section 33(1) of the 1979 Constitution of Nigeria (as amended) and the rules of natural justice because he proceeded to hear and determined the suit without hearing the Appellant on his motion on Notice dated the 27th day of March, 1998 which is pending before the court.
PARTICULARS
(i) The appellant filed a motion on Notice dated the 27th day of March, 1998 seeking inter-alia an order for extension of time to file and serve NOTICE OF INTENTION to Defend.
(ii) That on 31st day of March, 1998 the court’s attention was drawn to the existence of the said motion on Notice.
(iii) That on the 11th day of May, 1998 the learned trial judge despite the pendancy of the said motion on Notice dated the 27th day of March, 1998 proceeded to enter judgment infavour of the respondent.
(iv) The said Motion on Notice dated the 27th day of March, 1998 was not struck out before judgment was entered infavour of the respondent.
GROUND TWO
That the judgment was against the weight of evidence.
Briefs of argument were duly filed and served by the parties before this appeal came up for hearing on 21/3/2001. In the appellant’s brief of argument, only one issue was distilled from ground one of the grounds of appeal while the omnibus ground of appeal No.2 was specifically abandoned by the appellant and consequently no issue for determination was framed from it. I shall come back to the effect of the abandonment of the omnibus ground of appeal by the appellant later in this judgment. Meanwhile the only issue for determination in this appeal arising from ground one of the appellant’s grounds of appeal is:-
“1. Whether the trial judge was right to have entered judgment infavour of the respondent on the 11th May, 1998 without any consideration or pronouncement on the appellant’s motion on Notice seeking for extension of time to file notice of intention to defend and which motion on Notice has been adjourned to the same 11th May, 1998 for hearing.”
The respondent which adopted the single issue for the determination of the appeal however framed the issue as follows:-
“Whether the appellant was accorded fair hearing in the circumstances of this case.”
In support of the lone issue for determination, it was argued by the learned counsel for the appellant that the lower court was in great error by failing to accord the appellant a hearing in respect of his motion on Notice dated 27/3/98 for extension of time to file notice of intention to defend the suit also slated for hearing on 11/5/98 relying on the case of IN RE-CHIEF HEBRON JAJA & ANOR V. CHIEF S.A. PEPPLE & ANOR V. CHIEF PAUL D. FABURA & 2 ORS (1995) 2 NWLR (PT.375) 65 AT 77.
That it is by law that the lower court was bound to have pronounced on the appellant’s motion on 11/5/98 notwithstanding the absence of the appellant and his counsel and as such the lower court was wrong in ignoring the appellant’s motion. Learned counsel further relied on the decision of this court in CHIEF VIRCILUS ANI V. CHIEF LUKE MAMA NNA (1996) 4 NWLR (PT.440) 101 AT 123 AND 129 and submitted that the appellant was indeed denied a fair hearing by the lower court which has the discretion to grant the appellant’s application having regard to the case of BULLET INTERNATIONAL NIG. LTD V. ALHAJI YAHUZA ADAMU (1997) 3 NWLR (PT.493) 348 AT 357 – 358. On the above arguments, the appellant urged this court to allow the appeal and set aside the judgment of the lower court for being a nullity on ground of breach of the appellant’s right of fair hearing.
The contention of the respondent on the lone issue however is that the appellant was not denied a fair hearing in this matter and that the trial court rightly entered judgment for the respondent when the appellant who secured the adjournment of the matter to 11/5/98 intentionally chose not to attend the court to move his motion and thereby waved his right to be heard as was explained in ODU’A INVESTMENT COMPANY LTD V. JOSEPH TAIWO TALABI (1997) 10 NWLR (PT.523) 1 AT 51. That where a party had been afforded a reasonable opportunity to be heard and failed to attend court without offering any satisfactory explanation, he can not be heard to complain of denial of fair hearing if the case of KADUNA ILES LTD V. ALHAJI ISA UMAR (1994) 1 NWLR (PT.319) 143 AT 159 is taken into consideration. That as the appellant was absent in court to move his motion on the day it was fixed for hearing, the lower court had no obligation to consider it as the Audi Alteram Partem rule of Natural Justice only requires the court to hear or afford parties who are present in court the opportunity of being heard. This submission had support in the case of JAMES AKREBE V. HIS ROYAL HIGHNESS E.O. EFEIZOMOR AND 10 OTHER (1993) 7 NWLR (PT.307) 588 AT 601 cited in the respondent’s brief of argument. The learned counsel to the respondent while conceding to the position of the law that the lower court had the discretion to grant extension of time to the appellant to file his notice of intention to defend the suit, having regard to the circumstances of this appeal; it was not possible to exercise such discretion by the trial court.
It is indeed elementary and fundamental principle of our administration of justice in this country for our courts to hear all applications properly filed and consequently pending before the courts. Therefore where there is such pending application and the court refused to hear it or strike it out inspite of the presence of the applicant in court and prepared to move it, such conduct of the court would amount to clear denial of fair hearing in contravention of section 33(1) of the 1979 Constitution and rules of natural justice. See NALSA & TEAM ASSOCIATES V. N.N.P.C. (1991) 8 NWLR (PT.212) 652 AT 676.
The position of the law is that any decision of our court of law which is handed down in violation of the principle of Audi Alteram Partem is in breach of the right of fair hearing also guaranteed under section 33(1) of the 1979 constitution which was then inforce when this case was heard and determined at the lower court on 11/5/98. See ADIGUN V. A-G. OYO STATE (1987) 1 NWLR (PT.53) 678; AKANDE V. THE STATE (1988) 3 NWLR (PT.85) 681 AND ALFA V. ATANDA (1993) 5 NWLR (PT.296) 729.
However the Audi Alteram Partem rule of Natural justice only requires the court to hear the parties or afford the parties who are present in court the opportunity of being heard. Therefore where a party had been given the opportunity of being heard in any matter before our courts but such a party flagrantly throws away the opportunity of being heard by deliberately staying away from the court without any lawful excuse, that court cannot be accused of violating the parties right to fair hearing in proceeding with the matter. See JAMES AREBE V. EFEIZOKOR & ORS (1993) 7 NWLR (PT.307) 588 AT 601 AND KADUNA ILES LTD V. UMAR (1994) 1 NWLR (PT.319) 143 AT 159. In such circumstances where a party refused to avail himself of the opportunity of being heard by a court of law in any matter pending before it, such a party would be deemed to have waived his right to be heard in the matter and cannot be heard to complain after words of any denial of fair hearing which he himself had refused to take. See ODU’A INVESTMENT COMPANY LTD V. JOSEPH TAIWO TALABI (1997) 10 NWLR (PT.523) 1 AT 51.
In the present case, it is quite clear from ground one of the appellant’s grounds of appeal quoted in full earlier in this judgment and the lone issue arising from that ground for the determination of this appeal, that the complaint of the appellant of the alleged violation of his right of fair hearing under section 33(1) of the 1979 constitution relates only to the hearing of his motion on notice dated 27/3/98 which was also slated for hearing on 11/5/98, the same day the respondent’s undefended suit also slated for hearing was heard and the judgment now on appeal was delivered. Therefore as far as that ground of appeal is concerned the complaint in it does not relate to the judgment delivered on the undefended suit also on 11/5/98 in respect of which the only ground of appeal attacking it is the general or omnibus ground of appeal filed by the appellant which specifically complained against the judgment being against the weight of evidence. However, since the omnibus ground being the only ground appealing against the judgment had been specifically abandoned by the appellant in his brief of argument and also no issue had been framed from that ground, the inevitable consequence is that the appeal against the judgment of the lower court of 11/5/98 had been abandoned. This is because the ground of appeal is analogous to pleadings at the trial stage of a case. As the parties are bound by their pleadings at the trial stage and are forbidden from adducing evidence which is at variance with their pleadings, so are parties also bound by their grounds of appeal on appeal and can not be allowed to argue any issue which is contrary to the grounds of appeal. See NATIONAL INVESTMENT & PROPERTIES CO. LTD. V. THOMPSON ORGANIZATION LTD. & ORS (1969) 1 ALL NLR 136 AT 142 AND IGNEDO DIELI & ORS V. OSAKWE IWUNO & ORS (1996) 4 NWLR (PT.445) 622 AT 633. In the result, the omnibus ground of appeal having been abandoned without any issue arising from it for the determination of the appeal is hereby struck out.
Returning to the lone issue complaining of denial of fair hearing by the appellant in respect of his motion dated 27/3/98 which was also slated for hearing on 11/5/98 but which the lower court did not say anything upon before proceeding to hear the respondent’s suit, it is necessary in my view to examine the record of the lower court very carefully before resolving the issue. The record at page 4 shows that when the plaintiff’s/respondent’s suit filed under the undefended list came up for hearing on 25/2/98 at the court below, all the parties were absent and Mr. E. Kantiyok who appeared for the plaintiff asked for adjournment in order to serve the defendant. Consequently, the matter was adjourned to 31/3/98 for hearing. However, before the date fixed for the hearing of the suit, the defendant now respondent after he was duly served, filed a motion on notice dated 27/3/98 on 30/3/98 a day to the date fixed for the hearing of the suit. When the case came up for hearing on 31/3/98, the record at page 10 shows the parties absent again but both were duly represented by counsel. The proceedings then went on like this:-
“Kantiyok: for the plaintiff
T. Kambai: hold brief for S. Atung for the Defendant
Kantiyok: The matter is for hearing under undefended list – we are ready.
T. Kambai: S. Atung for the Defendant has filed an application seeking leave to defend the matter on merit. E. Kantiyok has just been served in court today. In the circumstance we shall ask for another date.
E. Kantiyok: In the circumstance we will ask for N2.500.00 costs for our several trips to court from Kaduna.
T. Kambai: We concede to N200 in the interest of justice more so because S. Atung is putting appearance in the matter for the 1st time.
Court: The matter shall be adjourned to 11/5/98 for hearing/motion. We award N300.00 costs to the plaintiff.”
When the matter came up again on 11/5/98 as scheduled for hearing, both the defendant now appellant and his counsel were absent in court and there was no explanation on record for their absence. Therefore on the application of the learned counsel to the plaintiff/respondent, the respondent’s suit under the undefended list was heard by the trial court and judgment entered infavour of the plaintiff/respondent. The record does not show anything on the motion dated 27/3/98 filed by the defendant/appellant who was absent and not represented.
What falls for determination now is whether the appellant at whose instance his motion was adjourned to 11/5/98 for hearing and who without any explanation on record failed to turn up in court on the date fixed for the hearing of the motion to move the same, can complain of the denial of fair hearing by the trial court. The answer of course is in the negative having regard to the state of the law on the vexed question of fair hearing. See AKREBE V. EFEIZOHOR & OR (1993) 7 NWLR (PT. 307) 588 AT 601 AND KADUNA ILES LTD V. ALHAJI ISA UMAR (1994) 1 NWLR (PT.319) 143 AT 159.
The record of the trial court earlier quoted in this judgment shows quite clearly that the appellant was given ample opportunity of being heard on the motion filed by him on 30/3/98 when the same was adjourned at his own instance to 11/5/98 for hearing. Thus having refused to avail himself of the opportunity given by the trial court, there is no basis whatsoever for blaming the trial court of denying him a fair hearing.
There is no doubt whatsoever as argued by the appellant that having regard to the decision of this court in a number of cases including the case of BULLET INTERNATIONAL NIGERIA LTD V. ALHAJI YAHUZA ADAMU (1997) 3 NWLR (PT.493) 348 AT 357 – 358, that the lower court has the discretion to grant the appellant’s application for extension of time to file his notice of intention to defend the action. However such application must first be heard by moving the same before the court by the applicant himself or his counsel before such discretion can be exercised in his favour by the learned trial judge. The lower court indeed can not become a Father Christmas and grant all the reliefs sought by the appellant in his motion dated 27/3/98, when the same motion had not been moved and heard in open court.
It is indeed baffling why the appellant decided to ignore completely in his arguments in the brief, the very important and decisive factor in the determination of this issue, the fact that he was neither present nor represented by counsel in court on the day his motion was fixed by the lower court at the instance of his own counsel for hearing.
However, one cannot say that there is no substance at all in the complaint of the appellant in this issue that the learned trial judge ignored his motion dated 27/3/98 completely in the proceedings of the court of 11/5/98 when the motion ought to have been heard, when it was not even struck out when he failed to appear in court on that day to move the motion. It was indeed wrong for the learned trial judge to ignore the motion he himself adjourned for specific hearing on 11/5/98 simply because the applicant failed to turn up in court and move the same. He was duty bound to mention, consider and pronounce upon all matters fixed for hearing before the court. See IN RE-CHIEF HEBRON JAJA & AR V. CHIEF S.A. PEPPLE & AR V. CHIEF PAUL D. FABURA & ORS (1995) 2 NWLR (PT.375) 65 AT 77.
In the instant case therefore, the lower court was indeed in error in failing to call the appellant’s motion dated 27/3/98 in his absence even though only for striking it out as required under Order 36 Rule 6 of the Kaduna State High Court (Civil Procedure) Rules CAP 68 of the Laws of Kaduna State 1991. Thus, the lower court having failed to strike out the appellant’s motion in his absence to move the same, this court, on the complaint of the appellant in this issue, can step into the shoes of the lower court under section 16 of the Court of Appeal Act CAP 75 of the Laws of the Federation 1990 and Order 1 Rule 20(5) of the Court of Appeal Rules CAP 62 of the Laws of the Federation of Nigeria 1990 and do what the lower court failed to do. See ABUSOMWAN V. AIWERIOBA (1996) 4 NWLR (PT.441) 130 AT 137. The appeal therefore succeeds in part on this issue.
In the final analysis, the appeal against the judgment of the lower court of 11/5/98 having been abandoned as the result of the complete absence of any ground of appeal and necessary issue in the appellant’s brief of argument challenging that judgment is hereby dismissed.
However, the appeal against the failure of the lower court to grant the appellant fair hearing on his motion dated 27/3/98 and pronounce a decision upon the same having succeeded in part is hereby allowed. Consequently in respect of the appellant’s motion dated 27/3/98 which could not be moved before the lower court due to the absence of the appellant and his counsel, there shall be entered a Ruling striking out that motion for want of prosecution.
I make no order on costs.
Other Citations: 2001)LCN/0986(CA)
