Ogbueshi Joseph O.g. Achuzia V. Wilson Fidelis Ogbomah (2016)

LAWGLOBAL HUB Lead Judgment Report

JOHN INYANG OKORO, J.S.C.

This an appeal against the judgment of the Court of Appeal Benin Division delivered on 13th February, 2004 wherein the lower Court upheld the judgment of the High Court of Delta State holden at Asaba. At the trial Court, the plaintiff’s claims were as follows:

“(a) A declaration of the Plaintiff is entitled to the grant of statutory right of occupancy in respect of all that parcel of land known as No. 37 Nnebisi Road, Cable Point, Asaba;

(b) An injunction to restrain the defendant whether by himself, his servant or agents or otherwise from further entering of demolishing the said house situated at No. 31 Nnebisi Road, Asaba Cable Point, Asaba.

c) Three million Naira (N3,000,000,00) special damages for the destruction caused on the property by the defendant,”

Upon being served with the writ of summons, the appellant as defendant, entered a conditional appearance through his counsel. The respondent who was the plaintiff filed his statement of claim on the 17th day of May, 2001. The appellant did not file his statement of defence. Simultaneously with the filing of statement of claim, the

respondent filed a motion for interlocutory injunction, which was argued in the absence of the appellant and his counsel. It was then adjourned to the 23rd day of July, 2001 for ruling.

On 23rd July, 2001, the learned trial judge delivered his ruling on the respondent’s application for interlocutory injunction and adjourned the case to the 9th October, 2001 for mention. Neither the appellant nor his counsel was in Court. On that date, the Court adjourned the case to the 24th October 2001 for hearing. No hearing notice was issued and served on the appellant or his counsel informing them of the date of hearing. As at 9th October, 2001 when the matter was adjourned for hearing to 24th October, 2001, the respondent did not file an application for judgment to be entered against the appellant in default of defence as required by Order 27 Rule 8 (1) of the Bendel State High Court (Civil Procedure) Rules 1998 (as applicable to Delta State). Without serving hearing notice on the appellant, the trial Court heard the case and entered judgment for the plaintiff, now respondent.

In an appeal to the Court of Appeal, the lower Court set out relevant portions of the

proceedings before the trial Court which confirmed non – service of hearing notice on the appellant. The lower Court however, held that since the appellant was aware of the ruling of the trial Court delivered on 23/7/2001 and the order adjourning the case to 9/10/2001 for mention the trial Court was right not to have ordered the service of fresh hearing notice on the appellant or his counsel when the matter was eventually adjourned for hearing on 24th October, 2001.

On the issue whether the trial Court could adjourned the case for hearing when pleadings had not been closed, the Court below referred to Order 27 Rule 4 of the Bendel State High Court (Civil Procedure) Rule and held that the trial Court was right to have adjourned the case for hearing when pleadings had not been closed and in absence of any application for judgment. The Court then upheld the judgment of the trial Court. The judgment of the Court below was delivered on the 13th day of February,2004 and on 28th, February, 2004, the appellant filed notice of appeal. Three grounds of appeal were filed out of which two issues have been distilled for the determination of this appeal.

The two issues nominated by the appellant are as follows:

‘1. Whether the learned Justices of the Court of Appeal were right in holding that there was no need for the learned trial judge to order the service of hearing notice on the Appellant or his counsel in this case.

2. Whether the learned Justices of the Court of Appeal were right in applying the provisions of Order 27(4) of the Bendel State High Court (Civil Procedure) Rules 1988 to the facts of this case.

The learned counsel for the Respondent also distilled two issues for determination. The two issues are the same as those of the appellant but couched differently as follows:

“1. Whether the learned Justices of the Court of Appeal were right in holding that “lt is not each time a case is adjourned in the absence of a party that a Court should order fresh notice to be issued on the absenting party…

“2. Whether the learned Justices of the Court of Appeal were right in applying the provisions of Order 7(4) of the Bendel State High Court (Civil Procedure) Rules 1988, applicable to Delta State of Nigeria, to the facts of this case”

Having perused the record of appeal and the briefs filed by both parties, Particularly the issues

formulated for determination, I am of a firm view that issue one in both parties’ briefs can effectively determine this appeal and I shall proceed to do so.

Learned counsel for the appellant, P. A. Ogana Esq who prepared the brief submitted on the 1st issue that the view expressed by the learned Justices of the Court of Appeal on pages 70 to 71 of the record that since the appellant filed an appeal against the order of interlocutory injunction made by the trial Court, he was deemed to be aware of that part of the said ruling which adjourned the case to 9/ 10/2001 for mention, really missed the point in issue. According to him, the real issue was whether the appellant had notice of the date the case was fixed for hearing and not the date to which it was adjourned for mention. He opined that even if the appellant was aware that the case was adjourned to 9/10/2011 for mention, since he was not in Court on the said date and was not represented by counsel, it could not be seriously argued that he was aware of the subsequent date of 24/ 10 /2001, to which the case was adjourned for hearing.

Learned counsel further submitted that a Court ought not to assume that a

party served with a Court process at one stage must be aware of the hearing date and that the trial Court owed a duty to examine its record on 24/10 /2001 so as to satisfy itself whether the appellant was served with hearing notice but deliberately chose not to appear in Court or through his counsel. Learned counsel cited the cases of Sunday Malaka Rex vs Chief Emmanuel Eyo lnang (2003) FWLR (pt 170) 1469 at 1486, Agene vs Katseen (1998) 3 NWLR (pt 543) 560 at 656 and Adebayo Ogundoyin & 2 Ors vs David Adeyemi (2001) FWLR (part 71) 1741 at 1755.

It was further submitted that failure to serve the appellant with hearing notice deprived him of his constitutionally guaranteed right to fair hearing. That lack of fair hearing in a trial renders the entire proceedings a nullity no matter how well conducted, relying on the cases of Skenconsult Nig Ltd & anor vs Godwin Sekondy Ukey (1981) 1 SC 6 or (2001) 6 NSCQR (Part 11) 1108 at 1119; Marion Obimonure vs Ojumoola Enrinosho & anor (1966) All NLR 245 at 247, African Continental Bank Plc vs Losada Nig. Ltd & anor, (1995) 7 SCNJ 158 at 162, Mobil Producing Nig. Plc vs Ezekiel Shut Pam (2000) 5 NWLR (pt 657)

506 at 529 Wema Bank Nig. Ltd vs Odulaja & ors (2000) FWLR (pt 17) 138 amongst others.

Learned counsel finally submitted on the issue that since from the records of the trial Court the appellant and his counsel were not in Court on 9/10/2001 when the case was adjourned to 21/10 /2001 for hearing, and there being no record of any previous service of any hearing notice on the appellant. He urged this Court to hold that both the learned trial judge and the Court below were wrong in holding that it was not necessary to serve hearing notice on the appellant.

In his response, the learned counsel for the respondent, Okey Anwadike Esq submitted that the Court below was right to hold that the Learned trial judge had the jurisdiction to hear the matter since the appellant was served all the processes filed in this suit. Also that the learned trial judge complied fully with the Provisions of S. 36(1) of the 1999 Constitution of the Federal Republic of Nigeria in hearing the case when he did, thereby ensuring that the patties were given fair hearing within reasonable time.

Learned counsel further submitted that the appellant, by his conduct intended to delay the hearing of

the suit within a reasonable time. According to him, this appeal is based on mere technicalities. That Courts now do substantial justice, relying on the case of Mathew Obakpolor vs The State (1991) 1 SCNJ 91 at 104; Jonason Triangle Ltd & anor vs Charles Moh & Partnels Ltd (2002) 10 SCNJ, 1. According to learned counsel, the cases cited by the appellant’s counsel do not apply to this case. He urged the Court to resolve this issue against the appellant.

In resolving this issue, let me state categorically that in the process of adjudication in a Court of law, service of processes and hearing notice on the defendant is a sine qua non to the assumption of jurisdiction by a Court except in matters which the laws permit to be heard ex – parte.

In Skenconsult (Nig) Ltd & anor vs Godwin Sekondy Ukey (1981) 1 SC 6, it was held that the service of process on the defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or any counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. Thus, the Court must satisfy itself of proof of service of

notice of the hearing before it proceeds to hear the matter and give judgment on the evidence adduced before it. Where a Court fails to do so, and proceeds to hear the case, the proceeding, no matter how well conducted is a nullity. See Alhaji Yusuf Dan Hausa & Co. Ltd vs Panatrade Ltd (1993) 7 SCNJ 100, Olorunyolemi vs Akhagbe (2010) 8 NWLR (pt 1195) 48, Habib Nig Bank Ltd vs Wahab Opomulero & ors (2000) 15 NWLR (pt 690) page 315.

The Court below stated the position of the law succinctly on pages 66 – 67 of the record when Amaizu, JCA, delivering the leading judgment said:

“Having said this, the essence of service of a Court process in a civil suit on a party as in this case, whether personally or by substituted means, is to make that party aware of the reliefs sought against him. And, for that party, if he likes to appear to defend the action brought against him. Consequently, the service of the process is a sine qua non for any effective adjudication of a case. See Mobil Nigeria Plc vs Ezekiel Shut Pam (2000) 5 NWLR (Part 657) p 506. In fact, it is when the process is served on the Parties that a Court has the jurisdiction to hear a case. It follows

therefore that failure to serve a party in a case with a hearing date is a fundamental irregularity which vitiates the proceedings.”

I am surprised that the lower Court, having brilliantly stated the principle of law above, went into grave error to hold that the learned trial judge was right to have heard the case on 24/10/2001 without a hearing notice being served on the appellant. In coming to that conclusion, the Court below held as follows:

“It is not each time a case is adjourned in the absence of a party that a Court should order fresh hearing notice to be issued on the absenting party.”

With due respect to the Court below, I do not agree. The record of appeal shows that when the case was adjourned to 9/10/2001, it was for mention. Appellant was not in Court on that date. Neither was his counsel in Court. The matter was subsequently on 9/10/2001 adjourned to 24/10/20011for hearing. No hearing notice was issued the appellant or his counsel and none was served on them.

There is no dispute about the facts as presented. Even the Court below was able to honestly state the facts and the law as it is. A Court of law must satisfy itself that all parties had notice of

hearing of a matter before it assumes jurisdiction to hear and determine the case. Failure to do so renders the entire proceedings a nullity. See Skenconsult Nig Ltd & anor vs Ukey (supra).

Moreso, it is a well settled principle of law that parties to a dispute before a Court of law or any other tribunal for that matter are entitled to a fair hearing. This is a constitutional requirement as enshrined in Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which states thus:

“In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

I agree with the learned counsel for the appellant that the requirement of fair hearing implies that each party to a dispute before a Court or tribunal must be afforded adequate opportunity to state his own case. This is what is meant by the principle of audi alterram partem. It is one of the twin pillars of natural justice.

Implicit in the requirement of fair hearing is the right of every party to a case before a Court to be given notice of the date and place of hearing, for, according to an African proverb, you cannot shave a man’s head in his absence. Even in the Garden of Eden, although God knew that Adam had eaten the forbidden fruit, He still asked him “Hast thou eaten of the tree whereof I commanded thee that thou shouldest not eat” Gen. 3:11 KJV.

My deduction in this matter is that the learned trial judge was infuriated by the way and manner the appellant conducted his defence before him and he felt he did not require any hearing notice. The Court below also fell into the same error.

Since the record shows that the appellant and his counsel were not in Court on 9/10/2001 when the case was adjourned to 24/10/2001 for hearing and there is no record of any previous service of hearing notice on the appellant, this was a deserving case for issuance of hearing notice. The Learned trial judge was in error when he failed to order that hearing notice be issued on the appellant, his intransigence notwithstanding.

Also, the learned Justices of the Court of Appeal, having examined the

record as they did, and failed to see any evidence of service of hearing notice on the appellant or his counsel, were also in error to have upheld the decision of the trial judge which is tainted with a fundamental vice and is therefore a nullity. I accordingly resolve this issue in favour of the appellant.

Having resolved this issue in favour of the appellant, and that the entire proceeding was a nullity, there is no need to go into the next issue which is just going to be an academic exercise. I hold that this appeal is meritorious and is hereby allowed. I set aside the judgment of the Court below delivered on 13th February, 2004, which upheld the judgment of the trial Court. I order that suit No A/ 42/2001 be remitted back to the Chief Judge of Delta State to be heard de novo by a Judge of the Delta State High Court except Hon. Justice P. M. Okoh who heard this case earlier. There shall be no order as to costs.

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SC.163/2004