Alhaji Asimiyu Ado V. Waheed Fadairo Ado & Ors (2016)

LawGlobal-Hub Lead Judgment Report

OBIETONBARA DANIEL-KALIO, J.C.A. 

On 27/2/13 a Brief proceedings before the Lower Court culminated in the judgment of that Court. The proceedings under reference read as follows:-
Parties absent
Mr. Aiyeokutan applies for striking out of the entire suit. The Claimant has not been diligent in the prosecution of his case, I also pray for the striking out of the Counter-Claim my own case. We are no longer willing to prosecute it.
Court:- In view of the prayer of Mr. Aiyeokutan before this Court, This suit is hereby dismissed.”

Following the above judgment, the Appellant became aggrieved. He had in his statement of claim claimed inter-alia that he be declared as the proper person to be recognized as the Mogaji/Baale of Ado family of Oke-Ado, Ibadan. Now, his case had been dismissed.

In his Notice of Appeal filed on 3/4/13, he sought to have the judgment set aside on two grounds, namely;
“GROUND ONE
The learned trial judge erred in law when she dismissed the Appellant’s claim when no such prayer was before the Court.
GROUND TWO
The learned trial judge lacked the

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jurisdictional power to dismiss the Appellant’s case No I/642112.”

Both grounds were accompanied with particulars of the errors claimed to have been committed by the learned trial judge.

The Appellant’s Brief of Argument was filed on 18/11/13 but deemed by an order of this Court, as properly filed and served on 27/1/14. Following the failure of the Respondents to file their Brief of Argument, the Appellant filed a motion on notice on 11/1/16 seeking to have the appeal set down for hearing on the Appellant’s Brief alone. The motion was granted on 28/1/16.

Following the order of the Court allowing the appeal to be heard on the Appellant’s Brief alone, the matter was adjourned to 1/3/16 for the hearing of the appeal. A Hearing Notice was served on the Respondents through their learned counsel E. M. Aiyeokutan Esq on 24/2/16. However the Respondents and their counsel failed to appear in Court for the hearing despite the service of the Hearing Notice. In the circumstances, the appeal was heard on the Appellant’s Brief alone.

The Appellant’s Brief of Arguments was prepared by I. A. Saka Esq. Two issues for determination were distilled from the

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two grounds of appeal. The two issues are
1. Whether from the evidence contained in the record of the proceedings, the learned trial judge was right to have dismissed the entire suit.
2. Whether the judgment of the learned trial judge delivered on 27th February, 2013 is not worthy of being set aside.

On the first issue, it was submitted that there is nothing in the record of the Lower Court to show that the Appellant and his counsel were aware that the case was to come up on 27/2/13. It was contended that by reason of the Appellant not being aware of the 27/2/13 date, his right to fair hearing prescribed by Section 36 (1) of the 1999 Constitution had been breached. Learned Counsel also submitted that the Court made the order of dismissal of the Appellant’s suit without considering pending applications before it such as the one for joinder of the Olubadan-in-council, the one for extension of time to file a Reply to the Statement of Defence, the motion for interim injunction and one other motion for an interlocutory injunction. Learned counsel cited the cases of Bamisile v. National Judicial Council (2013) All FWLR Part 678 p.911 at 933; Ovunwo v.

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Woko (2011) All FWLR Part 587 p.596 at 620; Deduwa & Ors v. Okorodudu & Ors (1976) NSCC P.199 at 509-510 and Adigun v. A.G. of Oyo State & Ors (1987) 1 NWLR Part 53 P.578 on the need to hear such applications. We were also referred to Order 30 Rule 3 of the High Court (Civil Procedure) Rules of Oyo State 2010.

Learned counsel submitted that assuming though not conceding that there was no genuine reason for the Appellant and his counsel to be absent from Court on 27/2/13, the proper order by the Court would have been one striking out the pending applications or the case and not one of dismissal of the suit. It was argued that the order of the learned trial judge was even contrary to the Respondents’ prayer before his Court adding that a Court cannot grant to a party what it did not claim. The case of Ekpeyong v Nyang (1975) 2 SC 71 was cited in support.

From the Record of Appeal, the case was adjourned to 27/2/13 from 28/1/13, The proceedings of 28/1/13 from the Record of Appeal indicate the following:-
“Parties absent
Counsel to both parties write for an adjournment.
Court: Case adjourned to 27/2/13 for hearing of

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application. Hearing of notices to issue on the parties.”

When the matter came up on 27/2/13, did the Lower Court ensure that its order that hearing notices be issued on the parties was complied with? The answer clearly is no. Without ensuring that the hearing notices were issued as ordered, the Lower Court willy-nilly dismissed the Appellant’s case on the application of Mr. Aiyeokutan. That was clearly wrong. The court must first satisfy itself of the proof of service of the Hearing Notice and where not satisfied of that, must adjourn the hearing. There is no discretion in the matter. See Alhaji Yusuf Dan Hausa & Co. Ltd v. Panatrade Ltd (1993) NWLR (Part 298) p.204. As this Court held in the case of Dimasa Property Limited v. Nurudeen Abioye Yusuf (2009) LPELR 8144 (CA).
It is settled law that service of process is a fundamental requirement to competence of an action, any default deprives the trial Court of necessary competence and jurisdiction to hear the suit.”

Appellant’s learned counsel was right in his submission that the Lower Court should have considered the pending applications before it before dismissing the

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Appellant’s suit. There were indeed pending motions before the Lower Court as I found out when going through the Record of Appeal. The trite position of the law is that where there are pending processes before a Court such as motions, those processes have to be dispensed with before a final decision is taken in the main action. See Akpan v. Bob (2010) 17 NWLR part 1223 P. 421; Irolo v. Uka (2002) 14 NWLR part 780 P.195 at 250. The principle of fair hearing demands that such motions be heard. See Nalsa & Tean Associates v NNPC (1991) 8 NWLR part 212 P. 652. Clearly the Appellant was deprived of fair hearing before his suit was dismissed and also denied fair hearing in that his pending applications were not heard. It was a case of double whamming. The dismissal in the premises cannot stand.

Issue 2 is whether the judgment of the learned trial judge delivered on 27/2/2013 is not worthy of being set aside. No pun intended, but is this issue worthy of consideration having regard to the consideration and resolution of issue 1? I think not. It will amount to tautology to consider it. It remains for me to observe that the judgment of the Lower Court is not a

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final judgment since it was a judgment in default of appearance and both parties were not heard on the merits of the case. See Bello v INEC & Anor. (2010) 8 NWLR part 1196 P.342. A judgment not pronounced on the merits may be set aside by any trial Court in the judicial division where the judgment was obtained. See Bello v INEC (Supra). Order 30 Rule 4 (2) of the High Court (Civil Procedure) Rules, 2010 of Oyo State provides thus:-
“Any judgment obtained where any party does not appear at the trial may be set aside by the judge upon such terms as it may deem fit.

I would have thought that learned counsel for the Appellant would have taken advantage of the above provision to have the judgment of the Lower Court set aside at the Lower Court. It would have saved precious time and money.

All said, the appeal has merit. The judgment of the Lower Court delivered on 27/2/13 is hereby set aside. It is ordered that the case be tried on the merits by another judge of the High Court of Oyo State that the Chief Judge of Oyo State may designate. I make no order as to costs.

Other Citations: (2016)LCN/8632(CA)