Chief John B. Utobivwi & Ors V. Ilayegue Omamo & Ors (2007)
LawGlobal-Hub Lead Judgment Report
SAKA ADEYEMI IBIYEYE, J.C.A.
The two actions, albeit in a representative capacity, which culminated in this appeal were separately instituted by the appellants and the respondents as plaintiffs.
The first of the two actions which was instituted by the appellants on the 31st July, 1979 in Suit No. UHC/36/79 on behalf of the Arhavwarien community sought in their paragraph 15 of their Further Amendment Statement of Claim the following reliefs:
“(i) A declaration that the plaintiffs and the defendants have been from time immemorial joint users of all that piece or parcel of land lying and situate between Egbayan parcel of land and Arhavwarien creek/river within the jurisdiction of this Honourable Court, the extent and features of which are shown on the Plan No. TJ.BD.486 dated 12th December, 1979 filed with the Statement of Claim.
(ii) N4,000.00 (Four thousand Naira) being general damages for trespass in that the defendants have on several occasions disturbed and prevented the plaintiffs, from working on and/or making use of the said parcel of land.
(iii) Perpetual injunction restraining the defendants, their agents and/or servants from interfering with the plaintiffs whenever they are working on or putting the said parcel of land into lawful use.”
The second action which can be aptly described as a cross action, which was initiated by the respondents in a representative capacity in behalf of Okparabe clan of the Ivwreokpe village community in Suit No. UHC/42/49 on 14th October, 1997 sought the following reliefs shorn of particulars to relief (2) (below):
“(1) A declaration that under Ivwreokpe and the entire Okparabe clan native law and custom, the plaintiffs and all their people of Ivwreokpe (or Okpe village) are entitled to the exclusive use, possession and occupation of the land known as and called ENYUWEUWI lying and situate at Ivwreokpe side of Oturhie. Ivwreokpe or Okpe village is on and forms part of the said land in dispute and Arhavwarien town.
(2) N6,000.00 (Six thousand Naira) being special and general damages for trespass committed by the defendants and all the people of Arhavwarien who without the consent of the plaintiffs broke and entered part of the said land with force and arms and destroyed plaintiffs’ rubber trees, plantain and cocoyams and other property thereon sometimes in 1977.”
On the 15th May, 1981, the learned counsel for the plaintiffs in Suit No. UHC/36/79 sought the leave of court that this case which is between the same parties and in respect of the same land be consolidated with Suit No UHC/42/79. Since the learned counsel for the defendants did not raise any objection to consolidation as requested, the said two actions were consolidated for purposes of hearing and determination.
After pleadings had been duly filed and served, the plaintiffs in Suit No. UHC/36/79 became the plaintiffs in the consolidated suits, while the plaintiffs in Suit No. UHC/42/79 became the defendants. The consolidated suits were thereafter transferred from the Ughelli Judicial Division to the Otu-Jeremi Judicial Division of the Delta State High Court of Justice and were respectively re-numbered HCG/20/96 and HCG/30/96.
After a series of adjournments the consolidated suits were set down for hearing on 28/6/99. Both the appellants and their learned counsel were absent from court on that day. The learned counsel for the defendants/respondents who was in court made an oral application by urging the court to invoke Order 37 Rule 8 of the High Court (Civil Procedure) Rules 1988 of Bendel State of Nigeria as applicable in Delta State to dismiss Suit No. HCG/20/96 which was an integral part of the consolidated matters (supra). The trial court acceded to the defendants/respondents’ oral application and accordingly dismissed the said suit for want of interest by the plaintiffs and their learned counsel. The learned trial Judge in almost the same breath called upon the defendants to open their case in Suit No. HCG/30/39, which was the survivor of the hitherto consolidated suits, (supra). The 3rd plaintiff in Suit No. HCG/30/99 testified on the same date, 28/6/99, and continued on 8/7/99 and 28/7/99 when the. 2nd and 3rd witnesses also testified and the 4th plaintiff testified on 30/7/99. At the close of the defendants/respondents case on 30/7/99, their learned counsel addressed the court which adjourned judgment to 5/8/99. It is pertinent to point out that the plaintiffs/appellants and their learned counsel in the initial consolidated matters were not in court throughout the foregoing proceedings.
Before the judgment was, however, delivered on 6/8/99 and not 5/8/99, the learned counsel for the plaintiffs/appellants filed a motion dated 4/8/99 essentially seeking that the judgment about to be delivered be stayed and set aside all the proceedings conducted in the case in their absence. Ruling on the said motion and judgment in the substantive Suit No. HCG/30/99 Were both delivered on 6/8/99 in favour of the defendants/respondents against the appellants. In effect, the learned trial judge refused the application for stay of judgment, setting aside proceedings conducted in the absence of the appellants and permitting the appellants to cross examine all the respondents’ witnesses and call evidence in support of their pleadings.
The appellants were utterly aggrieved by the ruling delivered on 6/8/99 and filed only one ground of appeal.
The only issue distilled from the ground of appeal reads:
“Whether from the general conduct, the facts and in the circumstances of this case, the learned trial judge was right in proceeding with the hearing of the deconsolidated case without giving the appellants fair hearing as provided in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999.”
The respondents, in turn, also identified one issue from the ground of appeal for the determination of this appeal which is substantially the same but differs only in wording from the appellants’ issue is as follows:
“In the light of the appellants’ conduct and nonchalant attitude in this case, can the trial judge be said to have breached the principle of fair hearing when he proceeded to determine the consolidated suits?”
It is apparent from the wording of the two sets of issues identified by the appellants and the respondents that there is striking similarity. In other words, the issue raised by the appellants subsumes that of the respondents. I shall, in these circumstances, determine the instant appeal on the issue raised by the appellants.
At the hearing of the appeal, the learned counsel for the appellants adopted and relied on the appellants’ amended brief of argument deemed properly filed on the 6th May, 2004. The learned counsel for the respondents equally adopted and relied on the respondents’ amended brief of argument.
In arguing the only issue raised by both parties for the determination of this appeal, the learned counsel for the appellants made a number of submissions. Thus, the learned counsel for the appellants contended that from the general conduct of this case, the learned trial judge was wrong in not giving the appellants an opportunity of fair hearing as the rush in the procedure adopted by him was less than orthodox. He submitted that that approach amounted to a negation of fair hearing and the proceedings thereof amounted to a nullity. He expatiated in contention that when the case, was set down for hearing in the absence of the appellants on 28/6/99, after, deconsolidating the suits by striking out the appellants’ own Suit No. HCG/20/96, he alleged that the learned trial Judge failed in his judicial obligation to order the issuance of a hearing notice to be served on the appellants as a necessary safety lock to the proceedings, more so when it was glaring to him that the appellants and their learned counsel were absent from court on that day. In furtherance of his submissions the learned counsel highlighted some of the antecedents of this case by saying that on 16/6/99, the 1st plaintiff in Suit No. HCG/20/96 of the consolidated suits was present while the defendants were absent. Their respective learned counsel were equally absent on that day. The trial Court in consequence adjourned the case to 25/6/99 “for parties and their counsel to decide what to do with the case”. He added that the Court did not sit on the adjourned date. It instead sat on 28/6/99 when only the 3rd respondent and the learned counsel for the respondents were present. The learned counsel for the appellants submitted that in order to satisfy the fundamental principle of fair hearing, the trial Court should have ordered hearing notice to be served on the appellants or their learned counsel since they were absent from Court on that date more so when the trial court ordered a major restructuring or deconsolidation by dismissing Suit No. HCG/20/96 on that date. He particularly relied on the cases of SAIDU V. MAHMOOD (1988) 2 NWLR (PART 536) 130 at 138 and 139; COMMISSIONER OF POLICE V. IHEABE (1998) 11 NWLR (PART 575) 666 at 679; MOHAMMED V. HUSSENI (1998) 14 NWLR (PART 584) 136 on the importance of notice of hearing. The learned counsel further submitted that a court hearing a case in the absence of a party when hearing notice was neither issued nor served on him violates the principle of AUDI ALTERAM PARTEM enshrined in the Constitution of the Federal Republic of Nigeria 1999. He cited in support of this submission the cases of UZONDU V. UZONDU (1997) 9 NWLR (PART 521) 466 at 482 and 483; S.B.N. PLC. V. M.P.I.E. LTD. (1998) 3 NWLR (PART 492) 209 at 218 and DUBAI V. SALEH (1997) 2 NWLR (PART 488) 502 AT 508. He elaborated on the issue of hearing notices by submitting that the learned trial judge erred in law and misdirected himself on the facots and therefore wrong to have proceeded with the hearing of the case without giving the appellants an opportunity of a fair hearing and without ordering hearing notice to be served on the appellants by his refusal and/or dismissal of the appellants’ timeous application by way of a motion on notice brought before him seeking to re-open the case conducted and closed in the appellants’ absence in order to enable the appellants to be heard on the merits particularly a sensitive land case.
The learned counsel for the appellants went on to deal extensively on the affidavit evidence filed for and against the reliefs sought by the appellants in their motion on notice dated and filed on 4/4/99. He particularly referred to the conflicting averments therein and submitted that it was wrong of the trial judge to have preferred the averments in the respondents’ counter affidavit to taking oral evidence in order to resolve the conflict with particular reference to the Ijaw/Itsekiri Warri crisis. The learned trial Judge instead accepted the respondents’ counsel’s version of the crisis which engulfed Warri and particularly Otu Jeremi area where the trial court is situate. The learned counsel for the appellants strenuously argued that, in the prevailing circumstances where issues were joined in the affidavit and counter affidavit, the learned trial judge could not adequately resolve those conflicting averments and he relied on the view of the Supreme Court in the case of LAWRENCE OLU IBUKUN & ANOR. V. ADESOLA OLU-IBUKUN (1974) 2 SC 41 where at page 48 it was held, inter alia, that the trial judge in that case was in error in making finding of facts on the conflicting affidavit filed by both parties without taking oral evidence.
The learned counsel for the appellants went on to submit that the learned trial judge had, in the prevailing circumstances, failed to appreciate the excusable and cogent reasons which accounted for the absence of the appellants during the proceedings which culminated in the judgment delivered on 6/8/99. He therefore urged the court to hold that the appellants were able to show that they were not unwilling litigants. He finally submitted that in the prevailing circumstances highlighted above, the ruling should be set aside and a retrial of the case on the merits be ordered.
In reply, the learned counsel for the respondents argued that from the general conduct of the case and the unconcerned attitude of the appellants in the consolidated suits, the learned trial Judge was in order when he proceeded to start the trial of the case. He equally argued that the question of the Court ordering that hearing notices be issued to the parties did not arise in the instant case since the appellants and their legal representatives were quite aware of the dates of adjournments. He specifically mentioned that Chief J.J.A. Rerri was in Court on one of the trial days. He added that the only reason given by Chief J.J.A. Rerri why he was not in Court for the trial was that his clients failed to come to his office to inform him of the adjourned date.
As regards the Court’s ruling on the motion on notice filed by the appellants to judgment of the court in Suit No. HCG/30/96, the learned’ counsel submitted that the granting or refusal of that application was at the discretion of the lower Court and that it exercised that discretion judiciously and judicially because the application in point was made mala fide and it was accordingly refused. He submitted that from the facts of this case, there were no irregularities which could amount to a total infraction of the appellants’ right to fair hearing as enshrined in Section 33(1) of the Constitution of the Federal Republic of Nigeria 1979. He contended that the appellants could not be heard to complain that they were not aware of the hearing or continued hearing of the case because their learned counsel, Chief J.J.A. Rerri, was aware of the continued hearing. He submitted that it is trite to say that when a party is represented by counsel notice in respect of a case is usually through that counsel.
As regards the rule of fair hearing the learned counsel for the respondents stated the obvious that it is not technical in nature. It is instead one of substance as it stipulates that both parties must be heard or be given opportunity of being heard by the Court or tribunal which determines their rights and obligations. He argued that where a party in the proceedings whether civil or criminal is given an opportunity of presenting his case before the Court of law and he fails to avail himself of that opportunity, he cannot complain that his right to fair hearing has been breached. He cited in support of that submission the case of ARIORI V. ELEMO (1983) 1 SC N.L.R. 1 at 24. He urged the court to dismiss the appeal against the ruling and/or judgment of the trial Court.
It appears to me from the foregoing arguments, submissions and the record of appeal that the issue, among others, which is of particular moment in this appeal relates to the essence of hearing notice in the course of any litigation in a Court of law. Hearing notice is a recognized court process whereby parties to a case are given adequate information of the hearing date, the type of case they are likely to meet and the venue of the trial. It is now very well settled that one fundamental way of ensuring that the principles of fair hearing are seen to be adhered to is that Court processes which include hearing notices must be served on parties to a suit.
In expatiation of this principle, it is pertinent to state that the service of Court process which include hearing notice on a plaintiff so as to enable him appear to prove his case or on a defendant so as to enable him appear to defend the reliefs sought against him and due appearance by the parties or their learned counsel is a fundamental condition precedent to vest competence and adjudicative power on a Court. This accords with the principle of natural justice.
One of the essential elements of natural justice is that both sides to a case shall not only be heard but they shall also be seen in the true eyes of the Court to be heard. See SKENCONSULT (NIG) LTD. V. UKEY (1981) 1 SC 6; S.B.N. PLC. V. CROWN STAR & CO. LTD. (2003) 6 NWLR (PART 815) 1 at 16; CRAIG V. KANSSEN (1943) K.B. 256; SCOTTEMUAKPOR V. UKA VBE (1975) 12 SC 41.
In order to satisfactorily deal with the issue of whether or not hearing notice was served on the appellants or their learned counsel before the learned trial judge embarked on his judicial obligation in this case, it is only apt for me to scrutinize the record of appeal. I have read from page 167 of the record where the relevant proceedings started on 16/6/99 to page 175 where the substantive case on 30/7/99 was adjourned to 5/8/99 for judgment in the case of HCG/30/96. It should be pointed that Suit No. HCG/20/96 which is an integral part of the consolidated suits of HCG/20/96 and HCG/30/96 had since been dismissed on 28/6/99 albeit in the absence of the appellants. I observed that there were five adjournments. I also observed that on each adjourned date the appellants were absent. No hearing notices were issued on the absenting appellants nor their learned counsel by the Court below on those five adjournments culminating in taking a date for judgment on 5/8/99 (vide page 175 of the record). The learned counsel attempted to find solace in the lapse highlighted by saying that Chief J.J.A. Rerri, the learned counsel for the appellants was in court on one of the several days the case was mentioned and positively heard by the Court below. The effect of this assertion was however whittled down when on being asked by the trial court, Chief Rerri said that he could not participate in the proceedings because the appellants did not inform him that the case would come up on that date. What this portends is that he, Chief Rerri as the learned counsel for the appellants, was not put on notice by the appellants to participate in the proceedings. The approach of the lower Court to the issue of notification is an affront to the principle that when a party is represented by counsel notice of the case is usually served on or through the counsel. This was apparently not done in this case. It is trite that a Court must be willing to go extra mile to satisfy itself that a party to a case has notice of the hearing date. See SAIDU V. MAHMOOD (1998) 2 NWLR 1(PART 536) 130 AT 138/139; COMMISSIONER OF POLICE V. IHEABE (1998) 11 NWLR (PART 575) 666 AT 679; MOHAMMED V. HUSSENI (1998) 14 NWLR (PT.584) 136. It is also trite that it is a violation of the principle of natural justice of audi alteram partem as enshrined in S. 33(1) of the Constitution of the Federal Republic of Nigeria 1979 (being the applicable grundnorm when the instant action was instituted) not to put the other party on notice. See UZONDU V. UZONDU (1997) 9 NWLR (PT.521) 466 AT 482 AND 483; S.B.N. PLC. V. M.P.I.E. LTD. (1998) 3 NWLR (PT.492) 209 AT 218; DUBA V. SALEH (1997) 2 NWLR (PT.488) 502.
In view of the prevailing circumstances with regard to hearing notices being served on the appellants, I am unable to agree with the learned counsel for the respondents that there were no irregularities which could amount to total infraction of the appellants’ right to fair hearing as enshrined in S.33(1) of the 1979 Constitution of the Federal Republic of Nigeria. I instead hold that there are glaring irregularities which did irreparable harm to the principle of fair hearing. The expression “fair hearing” means trial of a case or conduct of proceedings according to all relevant rules for ensuring justice. See ARIORI V. ELEMO (supra) at page 24. Justice is ensured vis-a -vis hearing notices when they are served on absenting parties as a condition precedent to notify them, inter alia, of the next adjourned date before jurisdiction is conferred on the Court. Since hearing notice is a due process, it is a condition precedent to the exercise of jurisdiction for the parties to have served it (hearing notice) or at least shown to have been aware of such notice. Where, however, such condition precedent to the exercise of jurisdiction is not fulfilled, the proceedings before the Court must be regarded as a nullity. See SKENCONSULT (NIG) LTD. V. UKEY (supra) at page 26; CAUSE V. ABDUULLAHI (1989) 4 NWLR (PT.116) 387; ANITA V. ASUQUO (1990) 5 NWLR (PT.151) 446 at 456/457.
The effect of dereliction of non-service of hearing notices has been lucidly stated in S.B.N. PLC. V. CROWN STAR & CO. LTD. (2003) 6 NWLR (PT.815) 1 at 16, thus:
“It is a well settled law and practice that a Court of law must not give judgment against a person who has not had any opportunity to defend the suit in the sense that hearing notice which will bring to his notice the date, time and place of the trial has not been served on him. It would amount to a grave error on the part of a judex to proceed to enter judgment or make an order against a party who is shown not to have been given an opportunity to appear in Court.”
It is equally trite that obtaining a judgment without service of the processes by which the judgment was acquired rendered not only the judgment so obtained but also the purported execution of same a nullity. A party affected by such a null decision or order of the Court is entitled ex debito justitiae to have it set aside. See JONPAL LTD. V. AFRIBANK (NIG) LTD. (2002) 8 NWLR (PT.822) 290 AT 304; NWOSU V. UDEAJAA (1990) 1 NWLR (PT.125) 188; AKPABUYO LOCAL GOVERNMENT V. EDIM (2003) 1 NWLR (PT.800) 23 at 39; MBADINUJU V. EZUKA (1994) 8 NWLR (PT.364) 535. In the instant case, it is so glaring that the principles of fair hearing were, with due regard, flouted by the learned trial judge because he failed to issue hearing notices on the absenting appellants on the various dates he embarked on the proceedings which led to the ruling and/or judgment he delivered. In view of this fundamental breach of the rule of fair hearing, the trial embarked upon was a nullity.
I now move to the Affidavit and Counter Affidavit filed in respect of the motion on notice filed by the appellants seeking a number of reliefs. It is not in doubt that issues were joined in the Affidavit and Counter Affidavit filed by the appellants and respondents respectively. In order to appreciate the nature of the issues joined it will be instructive to reproduce the salient averments in the Affidavit and Counter Affidavit in point. Thus paragraphs 4,5,6,7 and 8 of the affidavit read:
“4. Chief J.J.A. Rerri who was assigned to conduct this case informed me and I verily believed that:
(a) There arose a great communal clashes (sic) between the Ijaws and the Itsekiris which claimed so many lives and occasioned great insecurity to the people and brought business activities to a halt in the Niger-Delta area including Otu-Jeremi which made it most unsafe for outsiders to travel freely about.
(b) It is noteworthy to observe that the burning of buildings and other properties which brought soldiers and other men of the force all over Warri metropolis and our chambers happen to be situate right in the heart of the embattled Warri Township at No. 1 Warri/Sapele Road, Warri.
(c) Consequently, our chamber was closed down throughout the period of hostilities which made it impossible for lawyers to travel to Court nor gain access to the files.
5. I am informed and I verily believe them that as a result of the open threat, loss of lives and properties which spread across the Delta area, the defendants/applicants could not have a willing representative to risk traveling to Otu-Jeremi during that period. Appellants’ village is right inside the affected area.
6. I gathered from the defendants/applicants who learnt that the case came up some time during the hostilities that it was adjourned to 5/8/99 for judgment.
7. I know as a fact that no hearing notice was served on our chambers informing it of the commencement of the proceedings since the hostilities started or any other time thereafter.
8. Defendants/applicants informed me and I verily believe them that it will in the interest of justice to set aside proceedings held in the absence of the defendants/Applicants to participate in all the stages of the proceedings and to effectively present their case.”
The respondents in paragraphs 4, 5 and 6 of their Counter Affidavit averred as follows:
“4. That it is true that the proceedings culminating in the judgment fixed for 5/6/99 was in the absence of the Defendants/Applicants.
5. That the crisis in Warri and its environs did not affect the Court proceedings at the High Court Otu-Jeremi. The Court sat throughout to hear cases.
6. That the former lawyer for the defendants from Dr. Mudiaga Odje’s chambers, Chief J.J.A. Rerri was at the very Court on several occasions during the so called crisis. In fact on one occasion, Chief Rerri was in Court during the continued trial of this case. The learned trial judge called his attention to the fact that this particular case was on for continuation. Chief J.J.A. Rerri gave the impression that his clients were no longer interested in the case. He said that they have not been coming to conform with his Chambers. This was on 28/7/99.”
It is apparent that paragraph 4 of the Affidavit is in conflict with paragraph 5 of the Counter-affidavit since the averment in the former was denied in the latter. In order words, the parties joined issue. The learned trial judge appeared to have appreciated that the parties joined issue in their Affidavits and Counter affidavit when he stated in the attendant ruling at, page 187 of the record as follows:
“The applicants based their contention on the facts that there was crisis in Warri and its environs which affected Otu-Jeremi while the respondents deposed that the crisis did not affect Otu-Jeremi. This Court had uninterrupted sitting since 1/6/99 when the Court resumed sitting after the civil servant strike.
I therefore do not agree with the submission of counsel and I do not accept the facts on the issue of the crisis as a cause of default appearance of the defendant in Court.”
(underlining mine for emphasis)
The law on conflicting affidavit evidence is now very well settled. It is that the Court cannot resolve such conflict without taking oral evidence from the parties and possibly their witnesses. Such resolution in the instant case will be to ascertain the effect of the crisis in different parts of Niger/Delta area. The learned trial judge in this case did not appear to have recoursed to taking any oral evidence from the parties before deciding to accept as true the respondents’ averment that the crisis in Warri and its environs where the High Court at Otu-Jeremi is situate did not affect the court proceedings there. A similar situation was dealt with by the Supreme Court in the case of LAWRENCE OLU-IBUKUN & ANOR. V. ADESOLA OLU-IBUKUN (1974) 2 SC 41 at page 48 which held, inter alia,
“That the trial judge was in error in making findings of facts on conflicting affidavits filed by both parties without taking oral evidence.”
I accordingly find solace in the above dictum of the Supreme Court and hold that the learned trial Judge was in error to have relied on the respondents’ averments that the crisis in Warri and Otu-Jeremi was not such that could keep the appellants away from the proceedings in point. Aside this, it has already been held that the learned trial Judge lacked jurisdiction to deliberate and determine the case before him the way he did because the appellants were not put on notice before the judgment delivered on 6/8/99 was passed.
It is pertinent to consider the strenuous effort made by the learned counsel for the respondents in respect of paragraph 6 of the Counter Affidavit (supra). It is true that the appellants did not controvert that averment in their affidavit. I failed to see what useful purpose that averment would serve in the face of the overwhelming defect that the conflicting affidavit was not resolved at all by taking oral evidence on the conflict and resolving it one way or the other. I am of strong opinion that it is when the conflicting affidavit evidence had been adequately resolved that paragraph 6 of the Counter Affidavit could be effectively considered. Even if paragraph 6 of the Counter Affidavit were to be considered, I am of the view that its contents are self defeatist because it is therein stated that Chief J.J.A. Rerri told the trial Court that the appellants had not been going to his chamber to “conform”. In view of this exposition of the relationship between the appellants and Chief J.J.A. Rerri, it will be without basis to hold that he,
Other Citations: (2007)LCN/2398(CA)
