Ika Local Government Area V. Mr. Augustine Mba (2006)
LawGlobal-Hub Lead Judgment Report
OMOKRI, J.C.A.
This is an appeal against the Judgment of the High Court of Akwa Ibom State, sitting at Abak, presided over by Justice E. I. Edemekong, delivered on 22/6/04 in Suit No.HA/UND/18/2004.
The present respondent, who was the plaintiff at the trial court, instituted proceedings against the appellant, who was the defendant, claiming:
“1. The sum of N295,000.00 (Two Hundred and Ninety-five thousand Naira) being the total sum of the three contracts awarded the plaintiff by the defendant for production of Executive Name Tags Vide Jobbing orders numbers IKA LG/AD/S/49/T/VOL.1/159 of N100,000.00 (One Hundred thousand Naira) dated 30th April, 2003 and IKA LG/AD/S/49/T/VOL.1/160 of N95,000.00 (Ninety-five thousand Naira) dated 5th May, 2003 respectively and which payments were both approved in the same respective jobbing orders after completion on 12th May, 2003, and another contract awarded the plaintiff by the defendant on 3rd July, 2003 to design 6 (six) Executive Name Tags at the sum of N130,000.00 (One Hundred and Thirty thousand Naira) which he executed on 8th July 2003 of which he was only paid N30,000.00 (Thirty thousand Naira) on 22nd December, 2003.
- 25% interest rate per annum on N295,000.00 (Two Hundred and Ninety-five thousand Naira) from 1st June, 2003 till the whole sum is liquidated.”
On the 24/3/04, the respondent filed an application praying the court below to place the suit filed on the undefended list. On the 3/5/04 court ordered the writ of summons issued should be placed on the undefended list and that same be marked accordingly. The suit was then adjourned for hearing on 22/6/04.
On that day the appellant filed an application before the court below praying for an order extending time within which the appellant, may enter appearance in the suit and file a statement of defence to the suit. The application which was brought pursuant to Order 22 Rule 3 of the High Court of Akwa Ibom State (Civil Procedure) Rules and under the inherent jurisdiction of the court, is supported by an 11 paragraph affidavit deposed to by one Godwin Tommy.
The learned trial Judge dismissed the application and entered judgment for the respondent in the sum of N295,000.00 at 10% per annum from the date of the judgment until the final liquidation of the judgment debt. Another sum of N5,000.00 was awarded as cost of the action.
Dissatisfied with the judgment delivered by the court below, the appellant appealed to this court on two grounds of appeal on 22/6/04, the same day the ruling/judgment was delivered. The two grounds of appeal are reproduced hereunder shorn of their particulars.
“Ground 1
The learned trial Judge erred in law by refusing to grant the appellant extension of time within which to file its notice of intention to defend, its affidavit disclosing defence, as stipulated by the order of the learned trial court enter on 3rd May, 2004. The application for extension of time was made by the appellant pursuant to Order 22 rule 3(1) of the Akwa Ibom State High Court (Civil Procedure) Rules, 1989 which application the trial court refuse and consequently denied the appellant fair hearing in the matter.
Ground 2
The learned trial Judge erred in law in his ruling/judgment which implies that Order 22 of the Akwa Ibom State High Court (Civil Procedure) Rules, 1989 does not gave the appellant a remedy to apply for extension of time to file its notice of intention to defend and its affidavit disclosing defence since the matter was instituted under undefended list procedure.”
The parties duly filed, served and exchanged their respective briefs. The appellant in its brief dated 23/11/04 and filed on 3/12/04 distilled 3 issues for determination out of the two grounds of appeal filed. The issues are as follows:
“(i) Whether the appellant was not denied its constitutional right of fair hearing when the trial court rejected its application for extension of time to enter appearance and file its defence to the suits.
(ii) Whether the trial High Court was wrong in holding that Order 23(1), (2) of the High Court of Akwa Ibom State Civil Procedure Rules does not apply to undefended list procedure provided for in Order 23 of the said High Court Rules and that Order 23 override Order 22.
(iii) Whether the provisions of Order 23 of the Akwa Ibom State High Court (Civil Procedure) Rules 1989 which the trial court strictly and rigidly apply is superior to the constitutional provision for right of fair hearing enshrined in section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria in the light of the provisions of section 1(1) and section 1(3) of the 1999 Constitution of the Federal Republic of Nigeria.”
The respondent in his brief dated 14/2/05 and filed on 17/5/05 articulated two issues for determination. The two issues are as follows:
“1. Whether the learned trial Judge was right in law to dismiss the appellant’s motion for extension of time and enter judgment in favour of the respondent in accordance with Order 23 Rule 4 of the Akwa Ibom State High Court (Civil Procedure) Rules given the neglect of the appellant to file a notice of intention to defend and affidavit disclosing defence on the merit within time.
- Whether the undefended list procedure contained in Order 23 of the Akwa Ibom State High Court (Civil Procedure) Rules is inconsistent with the provision of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria and whether it breaches the principles (sic) fair hearing – given Section 36(2)(a) & (b) of the Constitution.”
The parties adopted and relied on their respective briefs of argument before this court.
The appellant, on Issue 1, submitted that it was denied its right of fair hearing by the court below and it was shut out of the case by refusing it entry into the case and to file its defence. The appellant contended that the rejection of the appellant’s application for extension of time to enter appearance in the suit and to file statement of defence (notice of intention to defend and affidavit disclosing defence) was not in accordance with law. Relying on Saleh vs. Monguno (2003) 1 NWLR (Pt. 801) 221 at 224 and 248; Okafor vs. A-G, Anambra State (1991) 6 NWLR (Pt. 200) 659 and Mohammed v. Kano Native Authority (1969) 1 All NLR 428, the appellant contended that fair hearing principle entrenched in the constitution is so fundamental in the administration of justice that a breach of it will vitiate or nullify the whole proceedings. It was also the contention of the appellant that Order 22 Rule 3(1) and (2) of the High Court of Akwa Ibom State (Civil Procedure) Rules, 1989 gives the court a discretion to grant or to refuse to grant an application for extension of time made by a party to a suit. It was further contended that a court is obliged to exercise its discretion judicially and judiciously but that in this case the trial Judge did not exercise its discretion judiciously.
On Issue 2, the appellant contended that the court was wrong in holding that Order 23 of the High Court of Akwa Ibom State (Civil Procedure) Rules overrides Order 22 of the same rules and that the order does not apply to the undefended list procedure provided under Order 23 of the said rules. It is the contention of the appellant that Order 22 of the said Rules is a general provision which transcends and covers all proceedings without any exception. The applicant relied on Usman vs. Ram (2001) 8 NWLR (Pt. 715) 449.
The appellant contended that it is a general rule for undefended list procedure that a trial court must be satisfied that there is no defence for a defendant before entering a suit under undefended list. Entry of a suit in the undefended list is not automatic. The appellant relied on Socfin Consultants Services & Anor. v. Asuamah (02) FWLR (Pt. 30) p. 1729 at 1747 paragraphs B – C. The appellant also contended that the trial court failed or refused to consider the averments in paragraphs 5 – 10 of the supporting affidavit for the motion for extension of time.
On issue 3, it is the submission of the appellant that Order 23 of the High Court of Akwa Ibom State (Civil Procedure) Rules is not superior to the provisions of Section 36(1) of the 1999 Constitution in the light of the provisions of Section 1(1) and (3) of the 1999 Constitution. Order 23 of the said rules is subject to the right of fair hearing guaranteed by the 1999 Constitution. It was also submitted that the trial court’s rejection of the appellant’s motion was a breach of constitutional right. The appellant relied on Odogwu & Ors. vs. Onochie & Ors. (2002) 8 NWLR (Pt. 769) page 254 at 261.
The respondent, on issue 1, submitted that the “audi alteram partem” principle of natural justice is not eternal. It is to be applied subject to the stipulated rules of procedure governing the court of law before which a matter is adjudicated. In all circumstances, the opportunity to be heard is limited and fixed and the person seeking to be heard must act within that time limit or loose the right to be heard. Order 23 rule 3 (1) of the rules gives the defendant the opportunity to be heard by allowing him time to file a notice of intention to defend and affidavit disclosing the defence filed. Order 23 rule 4 of the same rule provides that where the defendant neglects to take advantage of the opportunity given in Order 23 rule 3(1), the court shall hear the suit as undefended suit and enter judgment in favour of the plaintiff. The respondent referred to the cases of Ben Thomas Hotels Ltd. vs. Sebi Furniture Co. Ltd. (1989) 5 NWLR (Pt. 123) 523; Udemba & Anor. vs. Morecab Finance (Nig.) Ltd. (2003) 1 NWLR (Pt. 800) 96 ratios 1, 3, 4, 5 & 6; Planwell Watershed Ltd. & Anor. vs. Ogala (2003) 18 NWLR (Pt.852) 478, (2003) 16 NSCQR 138 ratios 1, 6, 8, 9 & 10; Akpabuyo Local Government v. Edim (2003) 1 NWLR (Pt. 800) 23 ratios 1 & 2 and Stabilini Visinoni Ltd. vs. Ejike (2001) 35 WRN 136 Ratio 5.
The respondent pointed out that the appellant admitted that it was served with the court processes on the 1st day of June, 2004 and it also admitted that it had 8 days from the day of service to file his notice of intention to defend and affidavit disclosing its defence. The appellant neglected to comply with the rules of the court and failed to comply with the order of the trial court. The respondent pointed out that even when the appellant came to court far out of time it only filed a bare motion for extension of time and an affidavit. It did not deem it necessary to file a notice of intention to defend or exhibit a proposed copy or an affidavit disclosing a defence to the suit so as to give the court an idea of what defence it has.
The respondent submitted that Order 22 of the High Court of Akwa Ibom State Rules which allows for extension of time does not apply to matters under the undefended list procedure under Order 23 of the Rules. He referred to the case of Kraus Thompson Organisation v. National Institute for Policy and Strategic Studies (NIPSS) (2004) 17 NWLR (Pt.901) 44, (2004) 18 NSCQR 157 at 167.
The respondent concluded that Order 23 rule 3 of the said rules clearly meet the requirements of Section 36(1) and 2(a) of the 1999 Constitution. It afforded the appellant the opportunity to be heard. All rights are enforceable in accordance with the rules of court and it is the rules of court that stipulate the nature of opportunity to be afforded to a party in accordance with the provisions of Section 36(2) of the 1999 Constitution. The appellant having neglected to take the advantage of the opportunity given to it by the rules to present its case in the peculiar circumstances of Order 23 of the rules cannot be heard to complain of fair hearing.
On receipt of the respondent’s brief of argument, the appellant filed a reply brief dated and filed 31/5/2005. Relying on the case of Ekeiloanya vs. Anyaonu (2003) 7 NWLR (Pt. 819) page 259 at 264 ratio 6 particularly at page 272 C – F, any given case with a view to avoiding injustice to the parties. The appellant relied also in P.C. Enye v. Kevin Ogbu (2003) 10 NWLR (Pt.828) p.403 at 412 Ratio No.9 and Ndaba (Nig.) Ltd. & Anor. vs. Simon Orakwe (2003) FWLR (Pt.171) page 1693.
The appellant also submitted that even if a defendant takes an improper step such as merely filing a notice not supported by an affidavit, he may take an adjournment to give him a chance to take a proper step to enable the court to consider the notice of intention to defend and affidavit disclosing the defence. He relied on Aubergine Collections Ltd. & Anor. vs. Habib Nigeria Bank Ltd. (2002) FWLR (Pt.128) page 1276 at page 1278 ratio 2.
Having carefully perused the issues for determination formulated by the parties, I observed that the appellant filed 2 grounds of appeal but formulated or distilled 3 issues for determination. It is wrong in law for a party to formulate more issues than grounds of appeal filed. Therefore, the 3 issues formulated are unnecessarily prolix.
Issues formulated must correlate with the grounds of appeal. It is bad and deplorable for a party to formulate more issues than the grounds of appeal, because issues must be married to the grounds of appeal. An issue for determination ordinarily may be formulated from one ground of appeal or from more than one ground of appeal. In the instant appeal the appellant formulated 3 issues out of 2 grounds of appeal. However, where there is a proliferation or prolixity of issues in a brief, the court merely rebukes, reprimands or cautions counsel. The party does not suffer any serious sanction or penalty. Such issues will only be discountenanced as going to no issue. The court will regard them as merely an excess load. See the cases of Consolidated Breweries Plc. v. Aisowieren (2001) 15 NWLR (Pt.736) 424; Mechanic v. Onisesin (1998) 2 NWLR (Pt. 538) 446; Sale vs. Yahaya (1998) 4 NWLR (Pt. 546) 462; Igboidu v. Igboidu (1999) 1 NWLR (Pt. 585) 27; Onwo vs. Oko (1996) 6 NWLR (Pt. 546) 584; Isibor v. The State (2002) 3 NWLR (Pt. 754) 250 at 271; A-G, Federation v. Guardian Newspapers Ltd. (1999) 9 NWLR (Pt.618) 187; Eze v. Nwaubani (2003) 7 NWLR (Pt. 818) 50 at 62 – 63 and U. P. S. Ltd. v. Ufot (2006) 2 NWLR (Pt. 963) 1 at 11. Therefore, notwithstanding the fact that the issues for determination are prolix the court is obliged to consider the appeal on its merit.
The court is free either to adopt the issues formulated for determination by the parties or to formulate such issues as are consistent with the grounds of appeal. See Labiyi v. Anretiola (1992) 8 NWLR (Pt. 258) 139 at 159; Dung vs. Gyang (1994) 8 NWLR (Pt. 362) 315 and Onwo vs. Oko (supra).
The three issues formulated by the appellant can be conveniently condensed into two. Issues 1 and 3 are interwoven and repetitive therefore, they can be taken together as they relate to the issue of fair hearing under ground one of the grounds of appeal. Issues 1 and 3 will be considered as issue one and issue 2 which relates to ground two of the grounds of appeal will be considered as it is. After a careful examination of the said issues 1 and 2, it appears more reasonable and logic to begin with issue 2.
The appellant’s issue 2 is whether the trial High Court was wrong in holding that Order 22 rule 3(1) and (2) of the High Court of Akwa Ibom State (Civil Procedure) Rules does not apply to undefended list procedure provided for in Order 23 of the said High Court Rules and that Order 23 override Order 22.
In order to bring the above issue into proper perspective it is important that I consider the provisions of Orders 22 Rule 3(1) and (2) and 23(4) of the High Court of Akwa Ibom State. Orders 22 rule 3(1) and (2) and 23(4) states:
“Order 22 rule 3(1). The Court may, on such terms as it thinks just, by order extend or abridge the period within which a person is required or authorized by this provisions, or by any judgment, order or direction, to do any act in any proceedings.”
Order 22 Rule 3(2): The Court may extend any such period as is referred to in paragraph (1) although the application for extension is not made until after the expiration of that period.
Order 23(4): Where any defendant neglects to deliver the notice of defence and affidavit prescribed by subrule (1) of rule 3 or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given without calling upon the plaintiff to summon witnesses before the court to prove his case formally.”
In construing any provision of statute the court is bound to consider other part of the statute together in order to discover the true intention of the legislature. More importantly the rules of construction and interpretation of statutes is that all related provision of the statute should be read together as a whole. See Matori v. Dangaladima (1971) 3 SC 53; University of Ibadan v. Adamolekun (1967) 1 All NLR 213 and Dantsoho v. Muhammed (2003) 6 NWLR (Pt. 817) 457, (2003) 6 MJSC pg. 97 at 104 Ratio 12.
By virtue of Order 22 Rule 3(1) and (2), the trial court may on such terms as it thinks just, by order extend or abridge the period within which a person is required or by these provisions or by any judgment, order or direction to do any act in any proceedings. The court may extend any such period as is referred to in paragraph (1) of the rules although the application for extension is not made until after the expiration of that period. Thus, under the provisions of Order 22 rule 3(1) until a judgment is entered, an extension of time may be allowed for rectifying a mistake or oversight; or for taking a procedural step.
From the provisions of Orders 22 Rule 3(1) and (2) and 23(4) quoted above, there is no doubt that the court has discretionary power to extend time in any proceeding under the rules with a view to avoiding injustice. See the cases of Ekeiloanya v. Anyaonu (supra) and Ayalogu v. Agu (2002) 3 NWLR (Pt. 753) page 168. Justice must be even handed.
The power of the court is unfettered by the provision of Order 23 Rule 4 of the rules. There is nothing in Order 23 Rule 4 which says that the court should not grant an extension of time within which to comply with the provision of the rules. It occurs to me therefore that Orders 22 and 23 are not mutually exclusive rather they are complimentary. Order 22 of the Akwa Ibom State High Court (Civil Procedure) Rules is the only provision dealing with the extension of time under the rules and it is not in conflict with the provisions of Order 23 of the said rules which is silent as to extension of time.
In the light of Order 22 Rule 3(1) & (2) of the aforesaid rules the trial court was obliged to consider the appellant’s motion for extension of time within which to defend the suit. See Ndaba (Nig.) Ltd. & Anor. vs. Simon Orakwe (supra). In the instant case on appeal the learned trial Judge at pages 11 – 12 of the record held as follows:-
“It must be observed that Order 23 of the High Court Rules which regulates the undefended list procedure comes immediately after Order 22 which regulates the procedure for computation of time. In reckoning, it must be presumed that Order 23 was intended by the law makers to override the provisions of Order 22, in which case, bearing the special provisions it does in content, Order 22 was not intended to have any application to the procedure under Order 23. The provisions therefore must be strictly followed.
In the case of Ben Thomas Hotels Ltd. v. Sebi Furniture Co. Ltd. (1989) 5 NWLR (Pt.123) 523, (1989) 12 SCNJ 171. The Supreme Court held that the court was bound to enter judgment on the return date if no notice of intention to defend and affidavit are filed upon proof of due service at least 5 days earlier.
In this case there is an affidavit of service sworn to by one Ema Dickson Akpabio, Chief Bailiff of this court that on the 1st day of June, 2004 he served on the Chairman of Ika Local Government one copy of a court order, and writ of summons together with the processes in this case. The order of court was clear and explicit.
To come with an application for extension of time to enter appearance and to file a statement of defence is not acting in accordance of the provision in Order 23 of the High Court Civil Procedure Rules. Such an application, which is not contemplated by the rules can therefore not be granted by this court.”
The decision of the trial court reproduced above is not in accord with the current position of the law. It was wrong for the trial court not to have considered the merits of the application for the extension of time within which to file notice of intention to defend and affidavit disclosing the defence and to hold that Order 22 does not apply to the proceedings under Order 23 of the rules. There is nothing in Order 23 of the Akwa Ibom State High Court (Civil Procedure) Rules that says so. If the legislator had intended that Order 23 should override Order 22 it would have said so clearly and expressly in the Rules. In Ojukwu v. Obasanjo (2004) 12 NWLR (Pt.886) 169, (2004) 10 MJSC page 1 at 33, the Supreme Court held:
“A Court of law is without power to import into a meaning of a word, clause or section of a statute something that it does not say.”
Order 22 apply to the undefended list procedure under Order 23 of the rules. This issue was settled in the case of Ndaba (Nig.) Ltd. & Anor. v. Simon Orakwe (supra). The Court of Appeal while considering Order 21 rule 3(1) and (2) of the Kwara State High Court (Civil Procedure) Rules, 1989 which is similar to and identical with Order 22 rule 3(1) and (2) of the Akwa Ibom State High Court (Civil Procedure) Rules, 1989, held thus:
“In the light of the provisions of Order 21, rule 3 (1) and (2) the failure of the lower court to hear and determined (sic) the appellants motion for extension of time within which to defend the suit runs foul of the said provisions and consequently shut out the appellant the opportunity of his defence thereby deny him of fair hearing contrary to section 33(1) of the 1979 Constitution.”
Also in Aubergine Collections Ltd. & Anor. v. Habib Nig. Bank Ltd. (supra), Musdapha, JCA, had this to say:
“The procedure under Order 23 is not intended to shut out a defence completely but see Bellow vs. Farmers Supply Co. Ltd. (1994) 5 NWLR (Pt. 342) 127, Bulet Int. (Nig.) Ltd. vs. Adamu (1997) 3 NWLR (Pt. 497) p.342 it appears to me that though there may be no provision under Order 23 to extend time to file notice of intention to defend the action, the affidavit filed may be examined to find out whether the delay for non-compliance with the order has been explained and also whether a defence on the merits is disclosed. If the affidavit satisfied these two requirements, the defendant should be allowed to defend the action and the court should overlook the motion paper or treat it as mere surplusage. Such a motion being an exercise in superfluity should not be allowed to work hardship on the defence on the merits as revealed in the affidavit.”
In Macaulay vs. NAL Merchant Bank Ltd. (1990) 4 NWLR (Pt. 144) 283. It was held that it is not the intendment of undefended list procedure to shut out the defence or to drive him away from on the judgment seat before hearing.
From the above decisions, the argument of the counsel for the respondent and the finding of the trial court that Order 22 cannot apply to the special provisions under the undefended list procedure under Order 23 of the High Court of Akwa Ibom State (Civil Procedure) Rules is untenable. It is significant to note that Order 22 of the Akwa Ibom State High Court (Civil Procedure) Rules is a general provision following the use of the words “in any proceeding”. Therefore, the rule transcends and covers all proceedings, including Order 23 of the rules, without any exception. See the case of Usman vs. Umaru (supra).
Order 23 rule 3(1) of the Akwa Ibom State High Court (Civil Procedure) Rules provides:
“If the party served with the writ of summons and affidavit delivers to the Registrar a notice in writing that he intends to defend the suit, together with an affidavit disclosing a defence on the merit, the court may give him leave to defend upon such terms as the court may think just.”
It is observed that there is no time limit stipulated under the rule and the power of the court is discretionary following the use of the word “may”. The court has the discretion to grant application for the extension of time for the doing of any act under the rules.
Order 23 rule 4, the rule provides:
“Where any defendant neglects to deliver the notice of defence and affidavit prescribed by rule 3 (1) or is not given leave to defend by the court, the suit shall be heard as an undefended suit, and judgment given thereon, without calling upon the plaintiff to summon witnesses before the court to prove his case formally.” [Underlining mine]
The operative phrase in the above rule is “Where any defendant neglects”.
In Oxford Advanced Learner’s Dictionary 6th Edition, page 785, the word “neglect” is defined as:
- to fail to take care of something/somebody;
- to not give enough attention to something;
- to fail or forget to do something that you ought to do.”
In the instant appeal though the appellant has not file his notice of intention to defend, he has nonetheless filed an application for an extension of time within which to do so. Strictly speaking it cannot be said that the appellant neglected to file his notice of intention to defend because the application for extension of time is a manifestation of his intention to comply with the rule. The appellant was not nonchalant or complacent.
Under the old rules where a party is served with a writ of summons under the undefended list procedure, he is required to deliver his notice of intention to defend and together with an affidavit within 5 days after service. Order 23 rule 3(1) and (4) did not stipulate any time limit within which a defendant under the undefended list procedure should file his notice of intention to defend and an affidavit disclosing his defence, rather the time is limited on the writ served on the defendant as ordered by the court. Since the time is limited by the order of the court stated in the writ, then the court has the discretion to extend time as provided under Order 22 rule 3(1) and (2) of the High Court of Akwa Ibom State (Civil Procedure) Rules, 1989.
Moreover, a court of trial has an inherent jurisdiction to extend the time for the doing of any act in any given case in order to avoid injustice to the parties. See the case of National Bank of Nig. v. The Are Brothers (Nig.) Ltd. (1977) 6 SC 97, 107.
In Ekeiloanya v. Anyaonu (supra) at 272 paras D-E:-
“The court has an inherent jurisdiction to extend time in any given case with a view to avoiding injustice to the parties. The undoubted power should not be carried out suo motu but upon application of the party in default. Justice must be even handed. The law is no respecter of persons.”
I conclude therefore that the provisions of Order 22 rule 3(1) and (2) is applicable to the undefended list procedure under Order 23 Rule 4 of the rules. See Aqua Ltd. vs. Ondo State Sport Council (1988) 14 NWLR (Pt. 91) p. 622 and Salami vs. Chairman L. E. D. B. (1989) 5 NWLR (Pt. 123) 539. It was therefore wrong for the trial court to conclude that the provisions of Order 23 of the rules was intended by the law to override the provisions of Order 22.
I, therefore, resolve Issue 2 in favour of the appellant and against the respondent.
I now come to Issue 1. Having held that the provisions of Order 22 rule 3(1) and (2) of the High Court of Akwa Ibom State (Civil Procedure) Rules apply to the undefended list procedure under Order 23 of the same rules, it follows therefore that the trial court was in error in not considering the motion for extension of time filed by the appellant.
Order 22 Rule 3(1) and (2) aforesaid is designed to promote and ensure fair hearing in a suit. It is made to give access to a party in a suit to do something it could not do within a stipulated time to enable him to be heard by a trial court. The rule is in line with the principles of fair hearing. The principles of fair hearing entrenched in the constitution is so fundamental in the judicial process or the administration of justice that a breach of it will vitiate or nullify the whole proceedings. See the case of Saleh vs. Monguno (supra) and Okafor v. A-G., Anambra State (supra).
Although, the rules of court providing for the undefended list procedure are deliberately designed to allow for quick dispensation of justice to avoid unnecessary clogging of the legal system with proceeding which could otherwise have been easily and quickly disposed of, the need for fair hearing should not be sacrificed on the altar of expediency.
The doctrine of fair hearing envisages that both parties to a case are given ample opportunity of presenting their respective cases without let or hindrance right from the commencement of such case to its logical conclusion. It also envisages that the court hearing a case should be fair and impartial, without showing any bias for or against any of the parties. See the case of Ezechukwu v. Onwuka (2006) 2 NWLR (Pt. 963) 151 at 155.
By virtue of Order 22 of the rules, the trial court, has the discretion to consider the application for extension of time and the averments in the supporting affidavit and decide to grant or refuse to grant the application. In the instant case on appeal the trial court did not examine or consider the application filed by the appellant. For the purpose of justice and fair hearing the trial court ought to have considered the application and exercise its discretion judicially and judiciously. In this instant appeal the trial court did not exercise its discretion judiciously or at all. It is therefore clear that the trial court denied the appellant his constitutional right of fair hearing by not considering his application for extension of time and by entering judgment without given him the opportunity to be heard or to enter into his defence.
The right of fair hearing is guaranteed under Section 36(1) of the 1999 Constitution. The section provides:
“In the determination of his civil rights and obligations, a person is entitled to a fair hearing within a reasonable time by a court or other tribunal established by law.”
In Ezechukwu vs. Onwuka (supra) at page 204, this court held thus:
“Fair hearing within the meaning of Section 33(1) of the 1979 and Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria means a trial or investigation conducted according to all rules formulated to ensure that justice is done to the parties. In other words, it is an indispensable requirement of justice that an adjudicating authority to be fair and just, must hear both sides by giving them ample opportunity to present their cases. Olumesan vs. Ogundepo (1996) 2 NWLR (Pt.433) 628; UBN Ltd. vs. Nwaokolo (1995) 6 NWLR (Pt.400) 127; Ekiyor vs. Bomor (1997) 9 NWLR (Pt.519)1.”
The very essence of fair hearing under section 36 of the 1999 Constitution of the Federal Republic of Nigeria is a hearing which is fair to all parties to the suit: whether the plaintiff, the defendant, the prosecution or the defence. See the cases of Ogundoyin v. Adeyemi (2001) 13 NWLR (Pt. 730) 403 and Ndu v. State (1990) 7 NWLR (Pt. 164) 550 at 189 paras. C – D.
Fair hearing and fair trial are said to be synonymous and the test for its observance is not based on technicality but on the substance of the proceedings and the objective view or opinion of a fairly minded person who was present throughout the proceedings whether, in his opinion, justice has been done to the parties in the case. See NEPA vs. Arobieke (2006) 7 NWLR (Pt. 979) 245 at 276 and Fagbule vs. Rodrigues (2002) 7 NWLR (Pt. 765) 188. In Ariori vs. Elemo (1983) 1 SCNLR 1, the Supreme Court held that fair hearing involves situations where, having regard to all the circumstances of a case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the tribunal was fair to all the parties to the proceedings. It means a trial conducted according to all the legal rules formulated to ensure that justice is done to all the parties to a cause or matter.
Generally, the twin pillars of fair hearing are embodied in the latin maxims nemo judex in causa sua, that is, “you shall not be a Judge in your own cause” and audi alteram partem that is, “hear the other side”.
The pillar of the rule of natural justice relevant to this appeal is the “audi alteram partem” rule. This rule connotes that a court or tribunal in the hearing and determination of suit or dispute between parties must:
(1) hear both sides; not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case.
(2) give equal treatment, equal opportunity and equal consideration to all concerned.
(3) having regard to all the circumstances in every material decisions in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done.
Having abruptly rejected the appellant’s application for an extension of time within which to file notice of intention to defend and affidavit, the trial court shut out the appellant from entering his defence and drove him from the seat of judgment. The appellant was not heard. It is therefore clear that the appellant was denied fair hearing.
The respondent contended that the provisions of Order 23 rule 3 of the High Court of Akwa Ibom State (Civil Procedure) Rules clearly meet the requirements of section 36(1) and (2)(a) of the 1999 Constitution, in that it afforded the appellant the opportunity to be heard. He also contended that all rights are enforceable in accordance with the rules of court which stipulate the nature of opportunity to be afforded a party in accordance with the provisions to section 36 of the 1999 Constitution. It is important that I draw the attention of the learned counsel to the fact that the rules of court are not omnipotent masters at war with justice rather they are subservient handmaids to justice. The provisions of the Akwa Ibom State High Court (Civil Procedure) Rules are not superior to the provisions of the Constitution. The Constitution is the grondnorm and the fundamental law of the land. All other legislations in the land take their hierarchy from the provisions of the Constitution. See Orhiunu v. Federal Republic of Nigeria (2005) 1 NWLR (Pt. 906) 39 at 46. Therefore, Order 23 of the High Court of Akwa Ibom State (Civil Procedure) Rules is subject and subservient to the right of fair hearing entrenched and guaranteed by section 36(1) of the 1999 Constitution. The trial court by entering judgment without giving the appellant the opportunity to be heard or to enter into his defence, committed a fatal error as the breach of appellant’s right to fair hearing rendered the proceedings a nullity.
In So Mai Sonka Co. (Nig.) Ltd. vs. Adzege (2001) 9 NWLR (Pt. 718) 312 at 322, this court held thus:
“The obvious result of non-compliance or breach of fair hearing especially in trials is the vitiation of such proceedings rendering same null and void. Akoh v. Abuh (1988) 3 NWLR (Pt. 85) 696; Oyeyemi v. Commissioner for Local Government, Kwara State (1992) 2 NWLR (Pt. 226) 661; Ceekay Traders Ltd. vs. General Motors Co. Ltd. (1992) 2 NWLR (Pt. 222) 132 and Military Governor of Imo State v. Nwauwa (1997) 2 NWLR (Pt. 490) 675.”
I, therefore, answer issue 1 in the affirmative. That is to say, the appellant was denied of its constitutional right of fair hearing when the court rejected his application for extension of time to enter appearance and to file its defence to the suit. I resolve issue 1 in favour of the appellant and against the respondent. I find merit in this appeal and it deserves to be allowed.
Accordingly, I allow this appeal. The judgment of the trial court in Suit No.HA/UND.18/2004 delivered on 22nd day of June, 2004 in the High Court of Akwa Ibom State sitting at Abak is hereby set aside. The case is hereby remitted to the Chief Judge to be assigned to another Judge other than Justice Edemekong. Costs in the sum of N5,000.00 is awarded in favour of the appellant.
Appeal allowed.
Other Citations: (2006)LCN/2045(CA)
