Mr. Alaba Sigbenu V. Mr. Taiwo O. Imafidon (2008)

LawGlobal-Hub Lead Judgment Report

ALI ABUBAKAR BABANDI GUMEL, J.C.A.

This is the apeal against the judgment of the High Court of Delta State, Ward Judicial Division in Suit No. W/132/2002. The judgment was delivered by Anigboro, J. on 31st March, 2003. The claim of the Plaintiff (Respondent herein) before the lower Court as endorsed in paragraph 9 of his statement of claim dated 20th May, 2002 but filed on 30/5/02 was for the sum of N1, 467, 000.00 (One Million, Four Hundred and Sixty-Seven Thousand Naira) being money owed to the plaintiff (Respondent) by the defendant (Appellant herein). In addition to this, the plaintiff also claimed for interest and exemplary and/or general damages in the sum of N1,000,000,00 (One Million Naira).

The Defendant (Appellant) entered appearance in a memorandum dated 10th July, 2002 and later filed a statement of defence dated 2nd August, 2002. In paragraph 14 of this statement of defence, the defendant averred that the claim of the Plaintiff was without basis, vexatious, malicious and an attempt at gold digging and prayed that same should be dismissed with costs.

Issues having been duly joined the matter was fixed for Hearing on 20th January, 2003.

On this scheduled date for trial, the Court was satisfied that the defendant was served with hearing notice through his counsel. While the defendant and his counsel were absent on this date, the Plaintiff and his counsel were present and the learned trial judge ordered the case of the Plaintiff to proceed to full hearing as scheduled. Being led in evidence by his counsel, the Plaintiff went a head to give oral evidence and tendered some cheques in evidence to support the averments in the Statement of Claim. At a point, the court suo motu stopped the hearing and adjourned to 6th February, 2003 for continuation of hearing. An order was made for Hearing notice to issue on the defendant and his counsel. For reasons which will feature later in this judgment, proceedings in this matter could not be held on 6/2/03. However, proceedings resumed on 21st March, 2003 when the Plaintiff concluded his evidence and Counsel closed the case of the Plaintiff. The Court thereafter adjourned the case to 31st March, 2003 for judgment. The proceedings of the 21st March, 2003 were held in the absence of the defendant and his counsel. In its judgment of 31/3/03, the Court gave judgment to the Plaintiff (Respondent) in the sum of N1,467,000.00 and award N2,000.00 costs against the defendant (Appellant).

In a motion on notice filed on 4th April, 2003, the defendant/appellant prayed for an order setting aside the judgment of 31/3/03 and for the matter to be set down for hearing on the merits. This motion was supported by a 9 paragraph affidavit deposed to by the defendant/appellant himself, while the Plaintiff/Respondent opposed it by way of a 12 paragraph Counter-affidavit dated and flied on 8th May, 2003.

For reasons which do not appear quite obvious from the record of appeal, no decision appeared to have been made on this application to set aside the judgment of 31/0/03. With the leave of this Court dated 19th February, 2004, the Appellant filed a notice of appeal dated and filed on 23rd February, 2004 against the judgment of 31/3/03. By an application dated 27th October, 2006 and filed on 2nd November, 2006, the Appellant sought for leave to amend his notice and grounds of appeal. This application was granted on 28th November, 2006 and the amended notice of appeal was deemed as properly amended and served. Appellant was also granted extension of time to file his brief of argument the time limited by the rules of this Court to do so having expired.

The Respondent filed his brief of argument. The Respondent’s brief is dated 8th January, 2007 and filed on 9th January, 2007. Added to this, the Respondent also filed a notice of preliminary objection dated 14th May, 2007, but filed on 4th July, 2007, challenging the jurisdiction of this Court to entertain this appeal. The Appellant’s reply brief responded to the preliminary objection and other issues raised in the Respondent’s brief of argument. At the hearing of the appeal before us on 14th April, 2008, respective learned Counsel adopted and relied on their respective briefs of argument.

Because the preliminary objection of the Respondent boarders on jurisdiction, I would wish to make a decision on it one way or another before the appeal proper, as circumstances may permit. The fulcrum upon which ‘the preliminary objection was raised and argued with leave of the Court is that ground (c) of the conditions of appeal was not perfected within the stipulated period and no leave was sought and obtained by the Appellant.

According to learned Counsel to the Respondent this failure goes to the entire root and competence of this appeal and the jurisdiction and competence to entertain it as presently constituted.

Learned Counsel then went on to submit that before an appellate Court can successfully adjudicate over an appeal the conditions of appeal must be satisfied or fulfilled within time or timeously. Immediately after this submission, learned Counsel explained that the Appellant was served with Civil Form 6 as an invitation to the parties to settle records. He also admitted that the record of appeal was settled by both parties. After admission, learned Counsel picked on condition (c) of the conditions of appeal at page 35 of the record and maintained that it was to be fulfilled within a stipulated period of 20 days. According to learned Counsel, the Assistant Chief Registrar (ACR) of the lower Court erroneously issued Civil Form 9 indicating that the Appellant had fulfilled the conditions of appeal imposed on him timeously. Learned Counsel argued that the fulfillment of condition @ is precedent to this Court assuming jurisdiction to entertain this appeal. He added also that the consequence of failure of the Appellant to fulfill all conditions precedent is to render the appeal incompetent and liable to being struck out. He referred to the case of PATRICK IZUAGBE OKOLO & ANOR V. UNION BANK NIG. LTD (2004) ALL FWLR (PT.197) 781 where the issue of jurisdiction was the effect of jurisdiction on adjudication and competence of appeal were emphasized and he urged this Court to strike out this appeal for same being incompetent.

At pages 1 to 2 of the reply brief dated 16/01/07, learned Counsel to the Appellant responded to the arguments and submissions on the preliminary objection of the Respondent. In an opening remark learned Counsel said that the preliminary objection is entirely misconceived, without merit and same should be dismissed. He went on to explain and argue that where an appellant fails to comply with any condition of appeal imposed by the Registrar of the lower Court, it is the duty of the Registrar under Order 3 rule 20 (1) of the Court of Appeal Rules 2002 to furnish that fact to this Court by way of certificate of non-compliance on the basis of which the appeal would be dismissed. He then pointed out that there is no such certificate of non-compliance in the instant appeal.

Added to the above explanation and argument, learned Counsel pointed out that with respect to this appeal, there is before this Court a certificate of due compliance with all conditions of appeal pursuant to Order 3 rule 13 (1) (b) in Civil Form 9. According to learned counsel this Certificate in Civil Form 9 is a conclusive proof of the fact that the appellant has fully complied with alit he conditions of appeal within time. This is against the background that it was the same Registrar of the Court below that imposed the conditions of appeal and it was before him that they ought to have been fulfilled as such he was the one who was in the best position to state before this Court whether or not the Appellant satisfied the conditions of appeal within time. He urged the Court to dismiss the notice of preliminary objection and proceed to decide this appeal on the merits.

I have carefully examined and read the entire record of appeal in this appeal. From a reading of page 34, the invitation to settle record and conditions of appeal is dated 23rd March, 2004. Learned Counsel to the Respondent, by way of this preliminary objection complained that condition (c) of the Conditions of Appeal was not fulfilled timeously by the Appellant.

This condition required the appellant to pay a total sum of N120 as statutory fees within 20 days. At page 35 of the record of appeal is a Civil Form 9 dated 23rd March, 2004. It is as follows:

CIVIL FORM 9

IN THE COURT OF APPEAL OF NIGERIA CERTIFICATE OF REGISTRAR THAT CONDITIONS OF APPEAL IMPOSED ON THE APPELLANT AT THE SETTLEMENT OF RECORDS OF APPEAL HAVE BEEN DULY COMPLIED WITH (ORDER VIII RULES 12(b) SUPREME COURT APPLICABLE TO COURT OF APPEAL PARTIES AND SUITE NUMBER AS AT FRONT PAGE:

I, the undersigned Assistant Chief Registrar of the High Court of Justice, Warri in the Delta State of Nigeria, do hereby certify that the Appellant in this appeal did timely complied with the Conditions of Appeal imposed on them in this appeal. (Underlining mine)

Dated at Warri, this 23rd day of March, 2004.

(Sgd.)

ASST. CHlEF REGISTRAR

HIGH COURT OF JUSTICE,

WARRI

JOA*

This Civil Form 9 was issued pursuant to Order 3 rule 13 of the Court of Appeal, Rules 2002, which in effect provide how the record of appeal shall be compiled and transmitted to this Court, and also what the record of appeal shall comprise of and the number of copies to be transmitted etc.

Order 3 rule 13 (2) provides further that upon the receipt of the record the appeal shall be placed on the cause list as a duly entered appeal. This provision of Order 13 rule 1 is antithetical to Order 3 rule 20 which provides for a Certificate on non-compliance to be issued if a would be appellant failed to comply with the conditions of appeal imposed by the Registrar of the lower Court. The effect and consequence of failure of a would-be appellant to fulfill the condition of appeal is very obvious. As rightly pointed out herein, by learned Counsel to the appellant, it would unmistakably lead to the dismissal of the appeal. It is a Civil Form 16 that is issued for noncompliance with the conditions of appeal.

The foregoing would have simply laid this matter to rest. It would then have been very easy to agree with learned Counsel to the Appellant that the issuance of Form 9 by the Registrar of the lower Court would have precluded him from issuing FORM 16. However, so long as condition (c) remains to be complied with within 20 days, the Form 9 at page 35, and as reproduced above, cannot be fully and absolutely correct and true of its contents. A very careful and close look at page 34 would show that condition (c) was not fulfilled within 20 days as required. At the foot of page 34, it is clear and crystal clear too that the appellant paid for the statutory fees of N120 on 29th April, 2004 i.e, a period of at least 36 days from 23/3/04, when the condition (c) was imposed. This payment pursuant to condition (c) was made on 29th April, 2004 vide receipt NO. DT002212423 of instant date. This is what is clearly endorsed at the foot of page 34. It is also curious that the FORM 9 at page 35 is equally dated 23/3/04, the date on which the conditions of appeal were imposed. This certainly cannot be correct of the contents of the endorsement at the foot of page 34.

In trying to explain this curious and apparently difficult situation, learned Counsel to the appellant, in his reply to the preliminary objection took on learned Counsel to the Respondent for not having furnished enough particulars to support his claim that condition (c) was not timeously fulfilled. Now this is the situation on the ground and upon which the preliminary objection ought to be decided.

I have reviewed, analysed and evaluated the whole scenario and in my view so long as the Civil Form 9 remains part of the record of this appeal, there is a presumption in favour of the appellant that he fully complied with the conditions of appeal. Added to this, the Registrar of the Court below could be deemed to have waived the condition that condition (c) be complied with within 20 days. It is, in my view, within the discretion of the Registrar to so waive the conditions of appeal he imposed wholly or partially. The worst possible scenario is that the non-compliance with condition (c) in the circumstance of the instant case must only be held to be a mere irregularity that was cured within a reasonable time. I therefore see no merit in this preliminary objection and it is accordingly dismissed. Having dismissed the preliminary objection, I shall now proceed to decide this appeal on the merits based on the various arguments and submissions of respective learned Counsel on the issues formulated from the grounds of appeal.

Appellant formulated the following 3 issues for the determination of this appeal. They are: –

i. Whether the trial Court was right when it failed and or neglected to order, issue and serve the Defendant/ Appellant fresh hearing notice after 6/2/03 when the Court did not sit as a result of the ethnic fighting in Warri at the time.

ii. Whether the learned trial Judge was right in holding that the Defendant/Appellant abandoned the case at the lower Court.

iii. Whether the Appellants Constitutionally guaranteed right to fair hearing was not breached by the trial Court when it failed to adjourn the case after the conclusion of the evidence of the Respondent on 21/3/03 for Cross-examination or for defence or for address, but hastily adjourned the case to 31/3/03 for judgment which the Court delivered.

In arguing issue 1, learned Counsel to the Appellant began with an explanation that the lower Court did not sit on 6/2/03 because of fighting between various ethnic groups in Warri. He added further that the failure of the Court to sit on 6/2/03 was a break and an intervening event beyond the control oft he Court and t he parties. Upon this background learned Counsel argued that notwithstanding what transpired in the case before 6/2/03, the trial Court was duty bound to issue and serve fresh hearing notice on the Defendant/Appellant or his Counsel after 6/2/03. He submitted that the Appellant ought not to have been penalized for no fault of his or that of his Counsel. According to Counsel, when the Court could not sit on 6/2/03 a parties to the action were entitled to a fresh hearing notice before the matter could proceed. He referred to the case of FIRST BANK NIG. LTD V. KHALADU (1993) 9 NWLR (PT.315) 44 where the Court of Appeal was faced with a similar situation as in the instant ” case, Learned Counsel further relied on the case of PADAWA V. JATAU (2003) F WLR (PT.164) 228 AT 2 52 C.F and maintained that a Court cannot begin or continue the hearing of a matter unless it is abundantly clear and sure that the defendant and/or his Counsel were aware that a matter against him has been fixed for a given date, He added that hearing notice must have been served on a party or his Counsel.

Also, as part of his arguments on this issue, learned Counsel tried to explain that though there could be a temporary delay in adjourning a case this ought to be preferred than a hasty determination without regard to procedure, Further to this explanation, learned Counsel remarked that though the adjournment of a case is at the discretion of the Court, that discretion must be judicially and judiciously exercised to avoid miscarriage of justice, With respect to the facts and circumstances of this case, learned Counsel submitted that the lower Court ought to have, in the interest of justice and fair play, adjourned this case when it came up for the first time after the inter-ethnic fighting in Warri abated and Court sittings resumed on 4/3/03 or 21/3/03, According to learned Counsel, this was particularly important because the appellant and his Counsel were not in Court and were not served any hearing notice that the case was coming up on such dates, Still referring to the facts of this case, learned Counsel highlighted that the lower Court acknowledged that it did not sit on 6/2/03 and having so acknowledged it ought to have restrained and warned itself on the need to notify the defendant and his Counsel that the case has been fixed for a particular date, Upon this scenario, learned Counsel maintained that he was not aware at all that the case was fixed for 4/3/03 or 21/3/03, He also to denied ever writing any letter for adjournment on 4/3/03. He submitted that the excuse given by the learned trial Judge in continuing with the matter on 21/3/03 is not tenable in law. To anchor this submission, learned Counsel referred and quoted extensively from the judgment in the case of EFFANGA V. ROGERS (2003) FWLR (PT.157) 1058 AT 1070 B – E.

To add credence and support to his position learned Counsel called in aid the case SO MAI SONKA LTD V. ADZEGE (2001) FWLR (PT.68) 1104. He gave a detailed account of the facts and circumstances of this case and the decision of this Court setting aside a judgment given in similar circumstances of the instant appeal. Upon this decision, he urged this Court to hold that the failure of the lower Court to order, issue and serve hearing notice on the Defendant/Appellant and his Counsel on resumption of Court sitting was legally unjustifiable and that the omission or neglect to order for fresh hearing notice to issue on the Defendant/Appellant or his Counsel has occasioned a grave miscarriage of justice. Learned Counsel further urged this Court to hold that the learned trial Judge, having failed to order for fresh hearing notices cannot be heard to say that the Defendant/Appellant abandoned the case when in fact neither the Defendant/Appellant nor his Counsel was aware that the case came up on 4th March, 2003, 21/3/03 or 31/3/03.

Issues 2 and 3 were argued together by learned Counsel. In opening his arguments on these issues, learned Counsel explained that upon the records it is clear that the Defendant/Appellant manifested sufficient zeal and determination to defend the suit because he entered appearance and filed a statement of defence all within time. He explained further that the Plaintiff/Respondent, under an erroneous belief that no statement of defence was filed, applied for judgment in default of defence. The Defendant/Appellant also very promptly challenged this application through his Counsel and the motion for judgment was struck out on 14th October, 2002. Learned Counsel maintained that it is obvious from the records that no hearing notice was served on the Defendant/ Appellant or his Counsel after 6/2/03 when the Court did not sit due to the Warri crisis.

Upon the foregoing, learned Counsel submitted that the learned trial judge was in error when he held in his judgment that the Defendant/ Appellant abandoned his defence while it was the Court that failed to afford him the opportunity to present his defence when he Plaintiff/Respondent closed his case in the absence of the Appellant and his Counsel on 21/3/03. He then referred to lines 20-23 at page 13 of the record and argued that from this, it is abundantly clear that the learned judge had closed the defence of the Appellant in his mind and had thereby made up his mind about the claim of the Plaintiff/Respondent. He pointed out that the Defendant/ Appellant was not given any opportunity to cross-examine the Plaintiff, to open his defence and for his Counsel to address the Court on the evidence adduced before the Court.

In support of the immediate foregoing argument, learned Counsel referred Order 37 rules 15, 16 and 18 of the HIGH COURT OF BENDEL STATE CIVIL PROCEDURE Rules 1988 applicable to Delta State and maintained that from these rules it is clear that after the close of Plaintiffs case, the defendant shall be afforded the opportunity to state his case, call evidence and address the Court. He further referred to and quoted s. 36(1) 1999 Constitution regarding the constitutionally guaranteed fundamental human right to fair hearing. Based on this provision, learned Counsel maintained further that the Defendant/Appellant was not afforded any opportunity to fairly present his case before the lower Court. He referred to the case of ALYIU V. CHAIRMAN RENT TRIBUNAL (NO. 5) KADUNA 2003, FWLR (PT. 155) 636 where it was held that a Court is under a duty to hear both parties and afford them the full opportunity to present their respective cases and any failure to do so would amount to a fundamental breach of the right to fair hearing. He also further referred to U.B.A. PLC V. UJOR (2002) FWLR (PT. 88) 1014 AT 1040 A-B.

While referring to S. 294(1) of the 1999 Constitution, learned counsel was very bold to submit that the right to address the Court is a Constitutionally guaranteed right that cannot be waived, compromised or dispensed with by a trial Court. To re-inforse this submission, learned counsel maintained that the address of counsel after the conclussion of evidence forms an intergral part of the right to fair hearing and the trial of a matter. He referred to a number of cases where it was held that failure to afford parties and their Counsel the opportunity to address th Court renders any judgment subsequently delivered by the Court a nullity for denial of fair hearing.

The cases referred in support are:-

ESHENAKE V. GBINIJIE (2005) ALL FWLR (PT.289) 1270 AT 1292 E; OBODO V. OLOMU *1987) 3 NWLR (PT.59) 11; SALAMI V. ODOGWU (1991) 2 NWLR (PT.173) 301 and OKOEBOR V. POLICE COUNCIL (2003) FWLR (PT.164) 189.

In conclusion, learned Counsel relied on the cases of SULE V. EBUNE (2003) FWLR (PT.138) 1341 G and IDAKO V. EJIGA (2002) FWLR (PT.119) 1499 AT 1508 F – H and submitted that where a breach of the right to fair hearing has been established, the only course open to this Court is to set aside the judgment and remit the case back to the lower Court for a re-trial and he accordingly prayed and so urged this Court.

In his response, learned Counsel to the Respondent formulated and argued a single issue for the determination of this appeal. The issue formulated by or on behalf of the Respondent is: –

Whether the Appellant’s right to fair hearing as enshrined in S.36 (1) of the Constitution of the Federal Republic of Nigeria 1999 was breached by the learned trial Judge.

Though this lone issue is a bit inelegant, I would still proceed to take it on its face value and consider the submissions of learned Counsel thereto. In his opening response learned Counsel, while referring to S.36 (1) maintained that the appellant’s right to fair hearing was not breached by the learned trial Judge as the Court gave the appellant ample opportunity to present his case but the defendant failed to be diligent in the prosecution of his defence.

From pages 6 – 8 of the Respondent’s Brief of Argument, learned Counsel quoted the various processes filed by the Defendant/Appellant as well as pages 13 and 17 of the record of appeal. Learned Counsel particularly referred to lines 18-19 at page 9 of the record and identified the point at which the learned trial Judge became satisfied that the matter before him was ripe for hearing. Thereafter, Counsel quoted extensively from the judgment of the lower Court as set out in lines 3 – 12 at page 17 of the record. He then argued that when the case came up for hearing before the lower Court, the appellant and his Counsel failed, refused and/or neglected to do the case diligently. He maintained that the appellant cannot now complain of denial of fair hearing as he was afforded ample opportunity to present his defence before the Court. He then quoted very extensively from the decision in AJAOKUTA STEEL CO. NIG. LTD V. BIOSAH & CO. NIG LTD (1992) 11 NWLR (PT.527) 145 AT 146, 158 C -E as per the lead judgment of SALAMI, JCA. On the basis of this decision, learned Counsel submitted that it is trite that a party who has been given an opportunity to appear in Court after being served with hearing notices cannot complain of denial of fair hearing. He then urged this Court to dismiss this appeal in its entirety and affirm the judgment of the lower Court. The Appellant’s reply brief is only good on its response to the preliminary objection raised and argued in the Respondent’s brief.

The latter parts of the reply brief in response to the remaining submissions of the Respondent are a substantial re-argument of the appeal. There is nothing new in it that had not been put across in the Appellant’s brief.

A reply brief is limited to answering any new points arising from the respondent’s brief. It is not permissible for an appellant to re-argue his appeal in a reply brief. Whatever was worth being argued should have been said in the initial brief. A reply brief should not be a forum to strengthen the appellant’s brief by repeating the arguments contained therein or to articulate and expand already made submissions. See AFRICAN CONTINENTAL BANK LTD & ORS V. APUGO (1995) 6 NWLR (PT.399) 65 and E SSIEN & ORS V. COMMISSIONER 0F POLICE (1995) 5 NWLR (PT.499) 489. I hereby discountenance the reply brief to the extent of all the arguments outside the direct reply to the preliminary objection of the Respondent.

The factual basis of the instant appeal is not a matter of substantial dispute. In my view the parties do not largely disagree on some fundamental issues. The basic setting is that the suit before the lower Court was heard and determined in the total absence of the Defendant/Appellant and h is Counsel. It is also clear that there were proceedings that led to judgment in the matter, These 3 proceedings are the most relevant to this appeal. They are the proceedings of 20th January, 2003, 21st March, 2003 and 31st March, 2003. To be properly focused, I wish to reproduce what I consider the most relevant and crucial parts of these 3 proceedings as follows: –

IN THE HIGH COURT OF JUSTICE: DELTA STATE OF NIGERIA IN THE WARRI JUDICIAL DIVISION: HOLDEN AT WARRI BEFORE THE HON. JUSTICE P.J.O. ANIGBORO, JUDGE ON MONDAY THE 20TH DAY OF JANUARY, 2003.

SUIT NO. W/132/2002

BETWEEN:

MR. TAIWO O. IMAFIDON PLAINTIFF

AND

MR. ALABA SIGBENU DEFENDANT

W/132/2002:

Plaintiff is present.

Defendant is absent.

COURT: -The case is for hearing and the defendant was served hearing notice through his Counsel P.E. Ehinor & Company.

PLAINTIFF Opens his case.

(Plaintiff was sworn on the Holy Bible and he opened his evidence.

Cheques were also tendered and admitted as Exhibits A, B, C, D, E etc).

COURT: At this stage further hearing in this case is adjourned to 6/2/2003 for continuation of further hearing. Notices are to issue on the Defendant and his Counsel personally.

Plaintiff is to ensure the service of the hearing notices on the Defendant and his Counsel. Bailiff in charge of this Court to effect service and file proof of service.

(Sgd.)

Hon. Justice P.J.O. Anigboro

Judge – 20/1/2003.

X X X

X X X

ON THE 21ST DAY OF MARCH, 2003

W/132/2002:

Plaintiff is present.

Defendant is absent.

Chief E.O. Ebesunu appears for the Plaintiff.

Plaintiff is reminded of his previous oath and states in English.

I want the Court to order the defendant to pay me the money he took from my hand which totals N1,467,000.00 and order him to pay me 20% interest from the date the cheques bounced till judgment and 10% interest from the judgment till date of payment.

I want exemplary and general damages of N1,000,000.00. Chief E.O. Ebesunu announces that that is the case for the Plaintiff.

COURT: – Judgment is reserved till 31/3/2003.

(Sgd.)

Hon. Justice P.J.O. Anigboro

Judge – 21/3/03.

It is equally relevant to the determination of this appeal to refer to Order 37 rules 15, 16 and 18 of the Bendel State High Court Civil Procedure Rules 1988, applicable to Delta State High Court.

0.37 “………………………

…………………………

r. 15 the order of proceeding at the trial of a case where pleadings have been filed shall be as prescribed in the following rules.

r.16 the party on whom the burden of proof is thrown by the nature of the material issues or questions between the parties according as the court may determine, shall begin.

r.18 When the party beginning has concluded his case, the other party shall be at liberty to state his case and to call evidence, and to sum up and comment thereon ……..”

The reproduced proceedings of the lower Court herein above must be allowed to speak for themselves. Learned Counsel to the Appellant and the appellant himself has denied being served with fresh Hearing notice for the proceedings of 21st March, 2003 and 31st March, 2003. Learned Counsel to the Respondent alluded to learned Counsel to the Appellant being served with fresh hearing notice for the proceedings of 21/3/03 and 31/3103. At page 17 of the record of appeal, as part of the judgment of the lower Court, the learned trial Judge summed up the position of the case before him in the following words: –

“On the 20/1/2003, the Court ordered further hearing notice to be issued and served on the defendant. This order was duly executed and on the 22/1/2005, the hearing notice was served. On the 4/3/2005 when the Court heard the case defendant’s Counsel wrote for adjournment which was granted as the case was adjourned to 4/3/2003 for mention, the Court having adjourned the cases on the 6/2/2003 w hen the Court did not s it as a result of crisis in Warri. On the 4/3/2003 the case was adjourned to 21/3/2003 one of the dates suggested by the Counsel for the defendant.

On the 31/3/2003, defendant was absent and there was no reason given for his absence and that of his Counsel. Plaintiff continued his evidence thus:

“I want the court to order the defendant to pay me the money he took from my hand which totals N1,467,000.00 and order him to pay me 20% interest from the date the cheque bounced till judgment and 10% interest from the judgment till date of payment. I want exemplary and general damages of N1,000,000.00.

That was the case of the Plaintiff.

In this judgment, defendant though he entered appearance and filed statement of defence and he was duly aware of the proceedings, defiantly refused to participate in the proceedings. The Court in the circumstance holds that the defendant abandoned his defence to the claim of the plaintiff as set out at paragraph 9 of his statement of claim filed on the 30/3/2002. See the case of Imana v. Robinson (1979) 3 & 4 SC 1, 8 – 10.

The Court will however consider the evidence of the Plaintiff which is unchallenged on its merit.”

The finding of the learned trial Judge that there were proceedings in this matter on 4/3/03 and that learned Counsel to the Defendant/Appellant had written a letter seeking for an adjournment is clearly not supported by the record of appeal. The record of appeal before this Court does not show that there were any proceedings with respect to this matter on 4/3/03, let alone for any order for fresh hearing notice to issue for the proceedings of 21/3/03.

Where a process of Court, such as hearing notice, has been served, it is necessary for the Court to have before it evidence of that fact proof of service is particularly needed if a party allegedly failed to appear in Court in response to the process allegedly served. Because of certain adverse consequences to him of such failure, the Court must be fully and absolutely satisfied that service was actually affected. It is a well known practice of our Courts for proof of service of all processes, where necessary, to be enclosed in the case file of the matter concerned so that on the date for hearing the judge, by referring to the file can easily and readily see whether there was any such proof of service or not.

Taking the proceedings of 20th January, 2003, as set out above, into perspective, it could clearly be seen that the learned trial Judge was fully conscious of his responsibility to ensure that hearing notice was served on the parties before the Court would be fully seized of the requisite competence and jurisdiction to entertain the matter on that date. When the learned trial Judge saw that the Defendant/Appellant and his Counsel were not in Court, he went on to fully satisfy himself that they were duly served with Hearing notice. At the conclusion and end of the proceedings of 20/01/03, the learned trial Judge, in accordance with law and practice, ordered for hearing notices to issue on the Defendant and his Counsel He adjourned the case to 6/2/03. The record shows that no proceedings took place on 6/2/03. It is agreed by both parties that indeed no proceedings took place on 6/2/03. How the action got on the cause list on 21/03/03 is not borne out of the records. How the Plaintiff and his Counsel got to know of the adjourned date and how they appeared in Court on 21/03/03 is neither so obvious nor very clear from the record.

There are 2 fundamental issues here. How did the learned trial Judge convinced himself that the defendant and his Counsel were aware of the date for the proceedings of 21/03/03 to enable him to proceed with the taking of the remaining evidence of the Plaintiff. The answer to this poser must be founded on the attitude of the learned trial Judge in his proceedings of 20/10/03. On that date he fully satisfied himself that the defendant and his Counsel were duly served with hearing notices and he made that finding part of the record. There is no such finding or record for the proceedings of 21/03/03. Something is definitely amiss.

The next fundamental issue or question pertains to the attitude of the learned trial Judge after the Plaintiff closed his case. After the Plaintiff closed his case, the Court adjourned the matter to 31/03/03 for judgment without much ado. This is very clearly erroneous.

In my view, the proper procedure the lower Court should have adopted at the commencement of its proceedings of 21/03/03 was to be satisfied, as it did on 20/01/03, that either or both the defendant and his Counsel were duly served with hearing notice. It is only after having been fully satisfied that hearing notices had been duly served that he would be entitled to proceed. Further to this, even after he was satisfied that they had been served, they would also be entitled to a further hearing notice and an adjournment after 21/03/03. In my view it was wrong to have adjourned for judgment without affording Counsel to the defendant a full opportunity to Cross-examine the Plaintiff on his evidence and also to lead evidence on the averments in the statement of defence and at the end of the evidence to address the Court before the matter could be properly adjourned for judgment.

Put in another way, if the Plaintiff appears and the defendant does not appear; or sufficiently excuse his absence, the Court may proceed to hear the cause and give judgment on the evidence adduced by the Plaintiff or may postpone the hearing of the cause on such terms as may seem just and direct notice of such postponement to be given to the defendant to appear. If the failure of the defendant to appear was due to the failure to serve him notice of the hearing then any judgment given in that circumstance will be one given without jurisdiction and will be set aside on appeal. See LAWRENCE SCOTT-EMUAKPOR V. UKAVBE (1975) 2 SC 41.

In the case of SO MAI SONKA LTD V. ADZEGE (supra) after the close of pleadings, the case was set down for hearing on 21/5/98. On that date neither the defendant nor his Counsel was in Court. Hearing, however, commenced. The case was adjourned for continuation of hearing on various subsequent dates. On each of those dates that the Court sat neither the defendant nor his Counsel were in Court. The Plaintiff continued his case. At the end of his evidence, his Counsel addressed the Court and judgment was given in his favour. On appeal, this Court held that the trial Court ought to have ordered and served hearing notice on either or both the defendant and his Counsel. It must however be realized that where a party to a suit has been accorded a reasonable opportunity of being heard and in the manner prescribed under the law, and for no satisfactory explanation it fails or neglects to attend to the sitting of the Court the party cannot thereafter be heard to complain of lack of fair hearing. See SALAMI, JCA, in AJAOKUTA STEEL CO. NIG. LTD (supra) at P. 158 C.

In adjourning the matter for judgment after the plaintiff closed his case, the learned trial Judge no doubt leapfrog the procedure in civil trials.

In ALIYU V. CHAIRMAN RENT TRIBUNAL (supra) this Court after considering the facts along side S.36(1) of the 1999 Constitution remarked that where a person’s, legal rights and obligations are called into question, he should be accorded full opportunity of being heard before any adverse decision is taken against him with regard to such rights or obligations. It is also an indispensable requirement of justice that an adjudicating authority shall as far as possible or practicable must hear both sides to a dispute to attain the benchmark of a fair trial.

The service of a hearing notice is more than just a procedural step in the adjudication of a matter. It is more serious than that. It is a substantive issue as it goes to the jurisdiction and competence of the Court to go ahead with the matter. A hearing notice was necessary in the circumstance for the proceedings of 21/03/03. The defendant or his Counsel were entitled to be served with hearing notice for the proceedings of 21/03/03, even if learned Counsel to the defendant sought for an adjournment in a letter against that date amongst other dates. So long as Counsel and the defendant were not in the Court on 6/2/03, for which they were duly served with Hearing notices as ordered by the Court, the Court must at the commencement of the proceedings of 21/03/03, be fully satisfied that hearing notices were duly served on them. This, the lower Court failed to properly do.

I have earlier observed that it amounted to leapfrogging for the lower Court to adjourn the matter for judgment after the Plaintiff closed his case without affording the defendant the slightest opportunity to cross-examine the Plaintiff on the evidence he adduced; to lead evidence in support of the averments in the statement of defence and to later address the Court on the evidence adduced. It is a procedural blunder.

The right of Counsel to address the Court after evidence is well known to the law and the Constitution. It must therefore be accorded its rightful place by our Courts. I agree with learned Counsel to the Appellant that it is a fundamental requirement of a fair trial. It is a major yardstick to gauge whether a party has been afforded reasonable opportunity to present his case before a Court of law in Nigeria. The defendant or his Counsel was fully entitled to be served with a hearing notice for the proceedings of 21/03/03. They were not so served. The failure of the lower Court in the instant case, to order and serve hearing notices for the proceedings of 21/03/03 was very fatal to the proceedings of that date. It was a fundamental omission which deprived the Court of the necessary competence to conclude the case of the Plaintiff, proceed to close same and adjourn the matter for judgment without any address, even from Counsel to the Plaintiff who was in Court.

Upon the foregoing issue 1 in the appellant’s brief must answered in the negative and it is resolved in favour of the appellant. Issue No. 2 is also answered in the negative and resolved in favour of the appellant while issue NO.3 is answered in the affirmative and also resolved in favour of the Appellant.

This appeal is meritorious and it is hereby allowed. The judgment of Anigboro, J. in Suit No. W/132/2002 dated 31/3/03 is hereby set aside for having been made contrary to law and the constitutionally guaranteed right to fair hearing. This matter is hereby sent back to the Hon. Chief Judge of Delta State to be assigned to a Judge of that Court, other than Anigboro, J., for hearing de-novo.

I order for N30,000.00 (Thirty Thousand Naira) costs against the Respondent in favour of the Apellant.

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Other Citations: (2008)LCN/2798(CA)