Nneka Agbu & Ors. V. Gladys Agbu & Anor. (2006)
LawGlobal-Hub Lead Judgment Report
JA’AFARU MIKA’ILU, J.C.A.
In this case the plaintiff, now respondent, by way of a writ of summons dated 7th day of February, 2002 sued the defendants, now the appellants before the Onitsha High Court, Onitsha seeking for the following:-
(1) A declaration that the last and Testament of Akunnia Paul Nwachukwu Agbu (otherwise known as Testator) dated 2nd July, 1984 proved in common form of law on or about 4th February, 1986 by the plaintiff and the defendants herein is valid and or effectual as regards the testamentary disposition contained therein.
(2) An order that the estate left by the Testator by the operation of clause 49 and 7 of his Will be partitioned and distributed to the beneficiaries to the Will;
(3) An order removing the 1st defendant as the Executor and Trustee of the estate and appointing judicial trustees (administrator general) to partition the Estate.
(4) An order for account of all sums of money and or property comprised in the estate left by the Testator received by the defendant either by themselves and/or through their agents, servants or attorneys belonging to the plaintiff by virtue of the dispositions contained in the Will of the Testator.
(5) A order for payment over and/or distribution to the plaintiff of all sums of money and/or property aforesaid found due to her upon taking of such accounts.
The 2nd -7th defendants/Appellants filed and served their statement of Defence in response.
Before the hearing commenced, the plaintiff/Respondent filed a motion on notice on 3rd February 2003 praying for:-
(1) An order appointing Mr. C. N. Ezebilo the Assistant Chief Registrar of this court and or any other person subsequently appointed to take over from him a receiver to collect rents and profits in the premises situate at No. 82A Upper Iweka Road, Onitsha and to share same to all the beneficiaries to the last Will and Testament of Akunnia Paul Nwachukwu Agbu in accordance to the determination of the substantive suit.
(2) And for such further order or orders as this honorable court may deem fit to make in the circumstances.
The said motion was supported by 13 paragraph-affidavit. The 2nd – 7th Defendants filed a counter-affidavit opposing the motion. When the motion came up for the mention on 27th May 2003 both parties were represented by counsel in court and the case was adjourned for hearing of the motion 15th July 2003. On 15th July 2003 when the case came up for hearing the motion, the 2nd-7th defendants and their counsel were not in court. The trial court allowed the plaintiff/Respondent through her counsel to move the motion and thereafter the court adjourned the case to 31st July 2003 for Ruling on the motion. However the ruling was not delivered on 31st July, 2003 as the court did not sit. Later before the ruling was delivered the 2nd – 7th defendants applied to the court through a motion on notice dated 30th September 2003 and filed on 9th October, 2003 and served the respondents asking the trial court for:-
(1) An order waiving all procedural rules by hearing this application at the earliest possible time (accelerated hearing)
(2) An order staying further proceedings including ruling on the motion moved by the plaintiff in this suit pending the determination of prayer 3 below.
(3) An order pursuant to the courts inherent jurisdiction granting leave to the 2nd – 7th defendants to reply to the application moved by the plaintiff before the Honourable court based on their counter-Affidavit.
(4) And for such further order/orders as this honourable court may deem fit to make in the circumstances.
On 4th November, 2003 when the court sat it did not deliver the pending ruling or hear the above motion. But it adjourned the case to 11th November 2003. The court could not sit on 11th November 2003. However when the court resumed sitting on 18th November 2003 the parties were not in court and the plaintiff counsel was not in court. But the Defendants/Appellants counsel was in court. The court went ahead and delivered its ruling in motion for appointment of a receiver and ordered for appointment of a receiver in respect of 154 Oguta Road, Onitsha. The 2nd – 7th defendants were aggrieved and therefore filed this appeal. From the appellants brief of argument adopted by the learned counsel for the appellants three issues have been formulated for determination in this appeal. They are:-
(1) Whether the Learned trial Judge was right in delivering a ruling appointing a receiver without first of all hearing the pending application by the appellants to be heard.
(2) Whether the Learned trial Judge put into consideration the relevant principles guiding the appointment of a receiver before making order for the appointment of a Receiver.
(3) Whether the Learned trial Judge properly directed his mind when he made order for appointment of a receiver without first of all determining whether or not the receiver will have any function.
On the other hand, in the respondent’s brief of argument two issues have been formulated for determination. They are:-
(1) Whether from the circumstances and antecedents of this suit, the appellants were denied of their Constitutional right to fair hearing in the court below.
(2) Whether the grant of the motion for receivership in respect of No. 154 Oguta Road Onitsha is just and convenient in the circumstances it was made.
I think it will suffice to consider the issues as formulated in the appellants brief of argument in determining this appeal. I will accordingly proceed with the said issues:
“ISSUE 1 (ground I) whether the learned trial judge was right in delivering a ruling appointing a Receiver without first hearing the pending application by the Appellants to be heard.”
The appellants have made it clear that this issue forms the gravemen of their contention. It is the argument of the learned counsel for the appellants that the said motion which the learned trial judge refused to hear and which forms the basis of this appeal was potentially curative in nature as it was to regularize the anomalies of the counsel to the 2nd – 7th Defendants absence in court and to grant them the opportunity of replying to the plaintiffs argument before the ruling. They have added that the refusal to hear the application is wrong exercise of discretion resulting into a miscarriage of Justice. Reliance has been placed on A-G. of THE FEDERATION v. A.I.C. LTD (1995) 2 NWLR (Pt.378)3 97. I agree with the appellants counsel in this regard. It is trite, as submitted by the learned counsel for the Appellants, that a court has a duty to hear and determine all applications pending before it by giving a ruling one way or the other, whether favourable to the party who filed it or not. Refer to N.A.A. v. ORJIAKOR (1998) 6 NWLR (Pt.553) 265; 279 B; 282 D- E. From the record of proceedings, pages 32 – 38, it is shown that there was pending motion of the appellants with its supporting affidavit and also the counter-affidavit of the respondent opposing the motion. Yet on 18th November 2003 the trial court proceeded and gave its ruling ignoring the said motion. It has been conceded by the Respondent’s counsel there was the said motion on Notice dated 30/9/2003 and filed on 9/10/03 and a counter-affidavit dated 28/10/2003 filed in response to the said motion on Notice. The respondent’s contention is that the said motion was not given a hearing date before the Ruling of 18/11/2003 was delivered. Also there is no evidence on the printed record of Appeal to show that the motion was moved or that there was an oral application by the appellants through their counsel to move the said motion upon which the learned trial Judge refused to hear and or entertain the application. I do not agree with this argument of the learned counsel for the respondent. What is important is the pendency of the motion. Whether the learned counsel for the appellants moved it or not, since it was pending, it was for the trial court to consider it one way or the other before giving its ruling. The refusal of the trial court to do so amounts to the infringement to fair hearing of the appellants which is their fundamental right guaranteed by the constitution and also enshrined in the principle of natural Justice audi alteram paterrn.
This in itself nullifies the proceedings of the trial court. Thus the Trial Judge was wrong in delivering the ruling appointing a Receiver without first of all hearing the pending application by the appellant requesting to be heard. The said ruling of 18th November, 2003 is therefore hereby nullified.
There is no need to dwell on the other two issues as in such a situation the case will be remitted to the court below for proper consideration of the issues raised.
In the final conclusion I find merit in this appeal and I allow it. The ruling of the court below of 18th November, 2003 appointing a receiver is hereby set aside. The case is to be remitted to the court below for proper consideration by another Judge. I award the sum of N7,000.00 as cost in favour of the Appellants against the Respondent.
Other Citations: (2006)LCN/1911(CA)
