Alh. Mohammed Sanusi & Ors. V. Alh. Mohammed Bello Gidiya & Ors. (2006)
LawGlobal-Hub Lead Judgment Report
IBRAHIM TANKO MUHAMMAD, J.C.A
This is an appeal against the decision of the Niger Stale High Court delivered ,on 27th May 2002 in respect of the stool of the ‘SARKIN BAUCHI’ otherwise referred to as the District Head of Rijau in Rijau Local Government Area of Niger State.
The appellants being dissatisfied with the said decision have appealed to this Court vide a Notice of Appeal filed on 01/07/02 consisting of 8 grounds of appeal. On the 05/02/2003 the appellants by way of Motion on Notice applied for an order for leave to amend the said Notice of Appeal. This order was granted by this court on the said 05/02/2003. The amended Notice of Appeal filed by the Appellant contained 6 grounds of appeal.
This appeal was heard on the 19/01/06. Both parties filed, exchanged and adopted their respective briefs of argument.
The facts of the case were that Alhaji Muhammad Kuki Rijau was until the 19th day of February, 2001 when he died, the District head of Rijau, Rijau Local Government Area of Niger State otherwise known or addressed as ‘Sarkin Bauchi Rijau’. The said Alhaji Muhammad Kuki Rijau was selected to the throne some time in 1971.
The 1st Appellant and the 2nd Respondent were contestants to the vacant stool of Sarkin Bauchi. The 2nd and 3rd Appellants are the Magajin Gari and Galadima of Rijau while the 2nd Respondent is the Sarkin Sudan of Kontogora and the Chairman Kontogora Emirate Council. The 3rd, 4th, 5th, and 6th Respondents are the village Heads of Ratagiwa, Zente, Kirho and Uddu respectively.
On the death of the late District Head of Rijau, an Electoral College was set up by the Kontogora Emirate Council. The Electoral College consists of seven members namely (1) Magajin Gari of Rijau (2) Galadima (3) The Imam of Rijau (4) Village Head of Ratayagiwa (5) Village Head of Uddu (6) Village Head of Zante and (7) Village Head of Kirho.
The 11th day of July 2001 was fixed for the selection of the New District Head of Rijau, but the selection could not hold because the Imam and some other members of the Electoral College were absent. The 200 Respondent then warned that at the next date to be fixed, if any member of the committee absents himself the election would take place.
On the next date 21st July 2001, four out of the seven members were in attendance, and the four members voted the 1st Respondent as the New Sarkin Bauchi (District Head) of Rijau.
The appointment of the 1st Respondent as the new District Head of Rijau was approved by the Ministry of Local Government.
It was the contention of the Appellants at the lower court that:-
a. There are five Traditional Kingmakers for the selection of the District Head of Rijau.
b. That the Village Heads are not Traditional Kingmakers and ought not be part of the ad-hoc Electoral College.
c. That the two of the four surviving traditional kingmakers were not invited to the selection exercise.
In a nutshell the appellant averred that the whole process and exercise of selecting the 1st Respondent as Sarkin Rijau was illegal, null and void.
The Respondents on the other hand, contended that:-
(a) until 1971 there was no practical process of selecting the District Head of Rijau.
(b) That when Alhaji Muhammadu Kuki died in the year 2001, two of the Kingmakers had pre-deceased him.
(c) The Village Heads have always been part of the process of selecting the District Head of Rijau.
(d) That the surviving kingmakers were duly notified of the date for the selection of a New District Head of Rijau.
The Appellants at the close of the Respondents case orally applied that the court should direct that the secretary of the Emirate council appear in court for cross examination. The court refused to grant this oral prayer, after which the appellant counsel applied for a date for address. The court ordered that counsel should submit written addresses on or before the 20th May 2002. On the 17th May 2002 the Appellant filed a Motion on Notice dated 10/512002 seeking inter alia, leave of the court to call fresh evidence. On the date fixed for judgment, neither the appellants nor their counsel were in court and the motion on Notice filed by the appellant to call fresh evidence was struck out. Judgment was delivered, dismissing the entire claim of the Appellants and awarding twenty five Naira costs in favour of the Respondent.
It is in respect of this that the appellants have now filed their Notice and grounds of appeal. The appellants have formulated three issues for determination:-
- “Whether the plaintiffs were accorded fair hearing by the trial court.
- Whether the trial Court’s findings leading to the dismissal of the suit were supported by evidence.
3.Whether the sum of N25,000 awarded for inconveniences was not excessive or was proper in the circumstances”.
Learned counsel for the respondents adopted the above issues.
On issue NO.1, it was the Appellants argument that the lower court by striking out the Appellants motion on Notice to call fresh evidence and the trial courts decisions to dispense with hearing addresses of counsel, amounts to a breach of their fair hearing.
The appellants counsel submitted that the Motion on Notice filed by the Appellant to call fresh evidence after the close of the Respondents case became necessary in view of the testimony of DW2. Learned Counsel for the Appellants submitted that the Appellants were taken by surprise with the nature of evidence given by the Respondent’s witness DW2.
The Appellants submitted that hearing notice in respect of the above motion was not served on the Appellants or their counsel and therefore the trial judge lacked the competence to refuse it and strike it out.
Learned Counsel for the Appellants further submitted that failure of the trial Judge to hear address of the parties 10 this suit occasions miscarriage of justice and vitiates the trial, and urge this court to hold that there was a breach of fair-hearing and order a retrial.
The Respondents’ counsel on the other hand, submitted that there is no breach of fair hearing as the Appellants’ counsel was absent in court on the 27thof May 2002 when the motion was fixed for hearing as well as judgment in the substantive suit. Learned Counsel for the Respondents submitted that he was in court on the 27th of May 2002 but elected not to address the court and the appellant’s motion was struck out for want of diligent prosecution as neither the appellants nor their counsel was in court and there was no notice as to the reason for their absence.
The Respondents through their counsel further submitted that the motion for leave to call fresh evidence was an after thought and calculated to delay proceedings.
On the issue of filing of written addresses, learned counsel for the Respondents submitted that the Appellants counsel had every opportunity of addressing the court up till 20th May, 2002 as ordered by the court but the Appellants’ counsel elected to waive his right to do so. Learned counsel submitted further that where the Defendants/Respondents elect not to address the court by way of “summing up” at the close of their case, the Plaintiffs/Appellants cannot be entitled to a “general reply” as contemplated by the Rules of Court.
Under issue one, the question being raised by the appellant was whether he was accorded fair hearing by the trial court by striking out of the Appellants’ motion on Notice to call fresh evidence.
Section 36(1) of the Constitution 1999, provide as follows:
- In the determination of his civil rights and obligations, including any question or determination by or against (my government or authority, a person shall be entitled to a fair hearing within a reasonable time by court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
Fair hearing has been interpreted by the courts to be synonymous with fair trial and so implying that every reasonable and fair minded observer who watches the proceedings should be able to come to the conclusion that the court or other tribunal has been fair to all the parties concerned. See UNIBIZ (NIG) LTD v. CBCC LTD (2003) 6 NWLR (pt.816) 402.
One fundamental way of ensuring that fair hearing principles are seen to be adhered to is that processes which include hearing notices must be served on the parties to a cause so as to enable them appear to prosecute and, or defend their cause and due appearance by parties or their counsel is a fundamental condition precedent required before the court can be said to have competence and jurisdiction to go into adjudication given that all other essential conditional ties are in place.
See SKENCONSULT (NIG) LTD & ANOR v. SEKONDY UKEY (1981) SC 6.
It is well settled law and practice that a court of law must not give judgment against a person who has not had an opportunity to defend the suit in the sense that hearing notice which will bring to his notice the date, time and place of trial has not been served on him. It would amount to a grave error on the part of a judge to proceed to enter judgment or make an order against a party who is shown not to have been given the opportunity to appear in court.See SBN PLC v. CROWN STAR & CO LTD (2003) 6 NWLR (part 815) 1.
I shall now proceed to examine the facts of this case as recorded in the printed Record of proceedings to see whether the appellants were served with the hearing notices.
On the 9th May 2005, the defence closed its case and the Appellants Counsel made an oral application to the effect that the court directs that the secretary of the council appear in court for cross-examination. The court ruled that such application has no legal basis and it was refused. Learned counsel for appellants then applied for a date for address. The court directed that written addresses be submitted to the court on or before 20/5/2005.
On the 17th May 2002, the appellant filed a motion on Notice for leave to call fresh evidence. The Registrar minuted same to the trial judge in which the trial judge minuted back that the motion on notice be fixed for 27th May
2002 for hearing. The Registrar now wrote a letter on the 21st May 2002 to the appellants’ counsel informing him that the case was fixed for judgment on the 27th May 2002. The Appellants’ counsel by a letter dated 23/5/02 wrote back intimating the court that the Motion on Notice filed by the appellants was yet to be heard. (See pages 99-1038 of the printed Record of appeal).
The appellants’ counsel did not receive a reply to this letter and never received any hearing Notice. On the 27th May 2002, the matter came up in court and the trial judge ruled as follows:
“There is filed before this court a Motion on Notice dated 17/5/2002 as filed in Minna brought pursuant to order 36 Rule 29 of this Court’s civil procedure Rules for leave to call fresh evidence by the Plaintiff. The learned counsel to tile said Plaintiffs is not in Court to move same, so it is hereby ordered struck out.”
Going from the scenario of what happened as stated above it is obvious that the appellants filed a Motion on Notice but no hearing Notice was served on the Appellants as to the date in which the Motion was to be heard.
The appellants were not aware that the 27/5/05 was fixed for the hearing of his Motion on Notice. Even though the trial judge minuted to the Registrar, to fix 27/5/05 for hearing of the motion. The court Registrar in this case made a mistake by erroneously informing the Appellants that the matter was for judgment.
It is trite law that fixing of matters for hearing in the court is an exclusive function of the court officials, and a litigant has no control over it. Where there is any default in the performance of the functions of the court the blame cannot and must never be placed at the door steps of a litigant who is seen to have carried out his own duty under the law or rule.See INNAH V UKDI (2002) 9 NWLR (pt 773) 563 at 599 Para B-C
In the instant case it is the duty of the court officials to issue the parties hearing notices to notify them when the motion on Notice of the appellants was fixed for hearing. The court Registrar in this case erroneously fixed the case for judgment instead Of fixing it for hearing. The non-appearance of the Appellants counsel in court on the 27/05/2002, was as a result of the mistake made by the court Registrar.
In the case of CC.B (NIG) PLC VS. A. G. ANAMBRA STATE & ANOR (1992) 8 NWLR (part 261) 258 at page 561 Olatawura JSC (as he then was) held and I quote;
“However, it will be contrary to all principles to allow litigants to suffer for the mistake of the court registry. The registry as well as the parties are duty bound to observe the rules of court.When litigants or counsel on their behalf file application, the registry is to give hearing date.”
In the light of above the learned trial judge was wrong to have struck out the appellants’ application because their counsel was not in court.
In my view, the proper thing for the learned trial judge to do in that instance was to adjourn the matter to another date and give orders that hearing notices must be served on the appellants counsel to afford him opportunity to move his application.
It is the bounden duty of a court to hear and determine all applications pending before it before making a final pronouncement by way of delivering judgment. See AMOO v. ALABI (2003) 12 NWLR (part 835) 537.
The attributes of fair hearing presupposes that the court or tribunal shall hear both sides not only in the case but also in all other material issues before reaching a decision in the case which may be prejudicial to any party in the case. The court shall give equal treatment, opportunity and consideration to all concerned. Rules of natural justice demand that a party must be heard before the case against him is determined. See ATTORNEY GENERAL FEDERATION v. AJAYI (2000) 12 NWLR (part 682) 509. AMOO V ALABI (2003) 12 NWLR (part 835) 537; ADIGUN v. A-.G. OYO STATE (1987) 1 NWLR (part 53)678.
The 2nd leg of issue NO.I deals with the trial court’s decision to dispense with hearing addresses of counsel.
Section 294(1) of the 1999 Constitution stipulates that:
“Every Court established under this Constitution shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses, and furnish all parties in the cause or matter determined with duly authenticated copies of the decision on the date of delivery thereof:
(underlining supplied by me).
The above cited provision of the Constitution has been judicially interpreted that the Constitution vests a right in the parties to a case to make final addresses. Thus, where the court completely refuses or shuts its mind from an address that is very relevant for the due determination of the case a decision reached by such skewed act cannot stand the test of fairness. The Supreme Court in the case of OBODO v. OLOMU (1987) 3 NWLR part 59 – page 113 held and I quote:-
“The procedure whereby the parties to a case at the conclusion of evidence are to address the court on the evidence before the court, enumerating the issues canvassed and adverting to the law governing the issues has taken such a root in our superior courts that denial of it cannot be regarded as mere procedural irregularity. Just as a party is not compellable to give evidence to prove his case so is a party not compellable to address the court where he has the right so to do. But where the right exists a party must not be denied that right and denial of the right may render the proceeding a nullity, if miscarriage of justice is occasioned. Such an address for convenience of the court can be in writing because the rules of court are not clear about this but it must be in accordance with rules whereby a party is not denied by implication of the right of address.”
The trial court in the instant case ordered that written addresses be submitted to the court on or before 20/5/2002. The appellants field a Motion on Notice on the 17/5/2002. With the filing of the Motion on Notice it means that the matter has not come to conclusion. Parties cannot proceed to file their respective addresses until the application before the court is heard and determined. If either of the party to the suit files his address it will amount to pre- empting the mind of the court as regards the outcome of the application before the court. If the application (which is for leave to the appellants to call fresh evidence) succeeds it means re-opening the case of the appellants and address cannot come until after giving evidence.
In my view, the learned trial judge was wrong to have held on the 27th May 2005 thus:
“This court has fixed this case for judgment today and notice to that effect were dispatched to the counsel dated 21/5/2002. I shall therefore proceed to deliver the judgment accordingly.”
Before the above pronouncement the learned trial Judge had earlier struck out the Motion on Notice. Even though the learned trial judge gave a deadline for the submission of written addresses, there was no order as to when the respondents were to serve the appellants with their address. No order was made obliging the respondents’ counsel to serve his address on the appellants.
I am of the opinion that the procedure taken by the learned trial judge was wrong. The respondents’ counsel in his brief has argued that he has waived his right to address the court.
I agree that a party entitled to address the court may waive that right but it must be shown that he has so waived his right. This did not happen in this case.See OBODO V. OLOMU (1987) 3 NWLR part 59 page 113.
Fair hearing or lack of it lies in the procedure followed by the determination of a case where there is denial of fair hearing in any judicial proceedings that proceedings will be declared a nullity.See CHIDOKO V FIRST CITY FINANCE CO LTD (2001) 2 NWLR (part 697) 216
It appears that the learned trial judge was in a haste to give his judgment.
He ordered that written address be submitted on or before 20/5/2002 by the 17/5/2002 there was an application filed by the appellant. The trial judge minuted on 21/5/2002 that the application be fixed for hearing for 27/5/2002. The judgment read in court on the 27/5/2002 was dated 20/5/2002.
Where judicial proceedings are delayed, it leads to a denial of justice. Equally hurried or rushed judicial proceedings leads to a denial of justice. Aniagolu, JSC (as he then was) in the case of STATE CIVIL SERVICE COMMISSION v. BUZUGBE (1984) 7SC 19 sounded the warning that:
“Instances may exist where short cuts may prove invaluable and achieve their objectives. It is, however, generally to be recognized that in legal matters and particularly in matters of natural justice short cuts many times prove counter-productive, be short-circuiting legal norm of natural justice and rendering the whole exercise a futility. In that case the short-cut becomes the ineffective long route. ”
I resolve issue NO.1 in favour of the appellants.
This means that this issue determines the whole appeal as the proceedings were initiated with invalidity. There is no need for me to consider the remaining issues. Accordingly I allow the appeal on issue one alone. I declare the lower courts judgment a nullity. I remit the case to the Hon. Chief Judge of Niger State for a trial denovo by another judge with liberty to the appellants to move their Motion on Notice to call fresh evidence, if the need for that arises. I order each party to bear its own costs in this appeal.
Other Citations: (2006)LCN/1924(CA)
