BARBUS & COMPANY LTD VS MRS. GLADYS OYIBOKA OKAFOR UDEJI
April 16, 2025OLUWATIMILEHIN IFARAMOYE vs THE STATE
April 16, 2025Legalpedia Citation: (2017) Legalpedia (SC) 19111
In the Supreme Court of Nigeria
Fri Feb 17, 2017
Suit Number: SC. 20/2005
CORAM
PARTIES
ALHAJI AUWALU DARMA APPELLANTS
ECO BANK NIGERIA LIMITED
RESPONDENTS
AREA(S) OF LAW
None
SUMMARY OF FACTS
The Respondent as Plaintiff instituted an action under the undefended list procedure at the High Court of Kano State claiming the sum of One Million, Three Hundred and Ninety Five Thousand, Five Hundred and Seventy Nine Naira, Eighty One Kobo (N1, 395,579:811k), being an outstanding balance of an overdraft facility approved in favour of the Appellant as Defendant by the Respondent.
Upon being served with the court process, the Appellant filed a notice of intention to
contest the claim but at trial, he however admitted liability of the loan to the tune of Three Hundred Thousand Naira only (N300, 000).
The trial court entered judgement against him on the said sum and consequently transferred the case to the general cause list with respect to the outstanding sum. Several adjournments were granted due to the absence of the Appellant in court.
The case was thereafter adjourned to the 19th of June 2001 for hearing but the Appellant and his counsel were absent hence the Respondent, upon proof that hearing notice was served on him asked the court to enter judgement in its favour in respect of the outstanding sum against the Appellant.
The trial court entered judgement on the outstanding sum of N1, 398,589:81k with
10 % interest from the date of Judgement until full liquidation of the judgement sum.
Aggrieved by the decision of the trial court, the Appellant appealed to the Court of Appeal which dismissed the appeal. The Appellant has further lodged the instant appeal before this court.
HELD
Appeal Dismissed
ISSUES
Whether the learned Justices of the Court of Appeal did properly and Judiciously stated (sic) the law on the facts when they held that Section 294 of the Constitution of the Federal Republic of Nigeria 1999, Order 37 Rules 11, 12 and 13 of the Kano State High Court (Civil Procedure) Rules 1988 relied upon by the Appellant were irrelevant in arriving at a decision that a denial of fair hearing has been occasioned. Whether the learned Justices of the Court of Appeal did properly and judiciously treated, and considered (sic) all the issues raised by the appellant in this brief of argument on their Judgment
RATIONES DECIDENDI
JUDGEMENT OF COURT- WHETHER A TRIAL COURT HAS THE JURISDICTION TO ENTER JUDGEMENT WITHOUT CALLING FOR A MOTION FOR JUDGEMENT
The rules states thus: “The trial Judge shall at or after trial direct Judgment to be entered as he shall think right and no motion for Judgment shall be necessary in order to obtain such Judgment” I think from the plain and unambiguous wordings of the above quoted Rule, the trial court had Jurisdiction to enter Judgment, once it is satisfied that the plaintiff had led credible evidence in proof of his or its claim without necessarily calling for filing of motion for Judgment. The procedure also does not admit for call for adjournment of the matter for any address to be delivered by counsel.
FAIR HEARING – PRINCIPLE OF FAIR HEARING
The cardinal principle of fair hearing are twofold (s) and are expressed in the following maxims (a) “Audi alteram Partem” meaning that the Judge before whom the complaint or grouse is taken must hear the two parties to the dispute, and (b) “Nemo Judex in cause” meaning that there should be no evidence of bias, so that one should not be a Judge in one’s own cause. See Nospetco oil &Gas Ltd VS Olorunimbe (2012)10 NWLR (pt 1307) 115 or (2012) 13 WRN 108. PER A. SANUSI, JSC
FAIR HEARING – CRITERIA OF FAIR HEARING
The Constitution of the Federal Republic of Nigeria, 1999, as amended, had entrenched by its Section 36, the principle of fair hearing under those provisions which clearly gives the criteria of fair hearing which are as follows: (i) That the court shall hear both sides to acase and also must consider the case of both parties too. (ii) That the court must also hear all material issues before reaching its decision which may be prejudicial to any party in the case. (iii) The court must give equal treatment opportunity to all the parties (iv) That the proceedings shall be held in public and all concerned shall have access and be informed of such place of public hearing (v) In every material decision of the case, Justice must be seen to have been manifestly done and not merely done. See Kotoye vs CBN (2001) FWLR (pt 49) 567.”
FAIR HEARING – WHETHER A PARTY WHO FAILS TO AVAIL HIMSELF THE OPPORTUNITY OF A HEARING CAN BE HEARD TO COMPLAIN THAT HE WAS DEPRIVED OF FAIR HEARING
“It must however be stressed here, that the appellant who, by his own deliberate decision, mis-Judgment or inadvertence, fails to avail himself of the opportunity of a hearing, he cannot be heard complaining that he was deprived fair hearing. See the case of Moses Atobatele vs Chief Dele Faseru (2013) 1 NWLR (pt 1335 341.”
BREACH OF RIGHT OF FAIR HEARING – WHETHER A PARTY CAN COMPLAIN OF A BREACH OF HIS RIGHT TO FAIR HEARING WHERE HE FAILS TO AVAIL HIMSELF THE OPPORTUNITY OF A HEARING
“A party, as a matter of law, should always be allowed to freely put forward his side of the case for the trial court to consider and determine. However, that notwithstanding, a party cannot and should not complain of breach of his right of fair hearing where he refused to avail himself, as in this instant case, of the opportunity provided under the law to present his case. See Okike vs Legal Practitioners Disciplinary Committee (2005) 15 NWLR (pt 949) 471, or (2005) 7SC (pt 111) 75; AG Rivers State vs Gregory Udo (2006) 7 SCNL 613 or (2006) 17NWLR (pt 1008) 436; Achuzia vs Ogbonnah vs (2016) 2 SC53.
RIGHT TO FAIR HEARING – POSITION OF THE CONSTITUTION AND THE LAW ON THE RIGHT TO FAIR HEARING
“The Constitution and the law only requires that an opportunity be given to a party to present his case before a decision is taken against him. It does not allow the party the luxury of holding his adversary and the court to ransom, to willy nilly wait for that party to come to court when he pleases to make out his case. No! The law and the courts give to litigants equal opportunities and failure by any of the litigants to appreciate this leads to damning consequences”.
FAIR HEARING – WHETHER IT IS THE DUTY OF THE COURT TO ENSURE A PARTY TAKES ADVANTAGE OF THE FAIR HEARING PROCESS
“This court per Ogunbiyi JSC in Nicholas Chukwujekwu Ukachukwu (2014) LPELR-22115 (SC) has adroitly restated the principle thus: “The duty of the court, trial and appellate, is to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the court cannot turn around to accuse the court of denying him fair hearing. After all there is the adage that the best the owner of the horse can do is to take it to the water; he cannot force it to drink the water. The horse has to do that itself and by the act of sipping. If the horse is unwilling to sip, that ends the matter. The horse will not blame anybody for death arising from the lack of water….”See also Inakoju V. Adeleke (2007) 4 NWLR (Pt 1025) 427 at 621-622”
NOTICE OF PROCEEDINGS – EFFECT OF A FAILURE TO GIVE NOTICE OF PROCEEDING TO THE OPPOSING PARTY WHERE SAME IS REQUIRED
“The well laid down position of the law is that failure to give notice of proceedings to the opposing party in a case where service of process is required is a fundamental omission which renders such proceedings void. This is so because the court would have no jurisdiction to entertain it. See Obimonure v Erinosho (1966) 1ANLR p. 250, Haruna v Ladeinde (1987) 4 NWLR (Pt.67) p.941”
HEARING NOTICE -IMPORT OF A HEARING NOTICE
“Hearing Notice is a document that emanates from the Registry of a court, giving legal notification to parties in a suit the dates on which the suit would be heard. Once a party or his counsel is served Hearing Notice they are both deemed to have actual knowledge of the date the suit would be heard, and if such a party decides to stay away from court he does so at his own peril”
FAIR HEARING – TEST OF A FAIR HEARING
Section 36 of the Constitution guarantees every one fair hearing in our courts. In Isiyaku Mohammed v Kano N.A. (1968) 1 ALL NLR p. 42. Ademola CJN explained fair hearing when he said: “It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case.” See Yusuf v. State (2011) 6-7 SC (Pt. v) p.180, Akande v State (1988) 3NWLR (Pt.85) p.681 , F.C.S.C. v Laoye (1989) 2 NWLR (Pt.106) p.652.”
APPEARANCE OF A PARTY – WHETHER A PLAINTIFF CAN PROVE HIS CLAIM WHERE A DEFENDANT FAILS TO APPEAR
Order 37 Rule 2 of the Kano State of Nigeria High Court (Civil Procedure) Rules 1988 states that: “If when a trial is called on, the plaintiff appears and the defendant does not appear, then the plaintiff may prove his claim, so far as the burden of proof lies upon him.”
RULE OF FAIR HEARING – INSTANCES WHERE THE RULE OF FAIR HEARING WILL BE INAPPLICABLE
“The fair hearing rule does not apply where counsel had the opportunity of being heard but chose to be silent, Omo v. JSC, Delta State [2000] 7 KLR (pt. 108) 2623 or made cross-examination impossible, Oyedeji v. Akinyele [2002] 3 NWLR (pt. 755) 586, 613. Equally, where counsel, deliberately, fails to avail himself of the opportunity of delivering his address, the absence of his address cannot amount to a denial of fair hearing which could vitiate the judgement of the Court, Chidoka v. First Class Finance Co, Ltd. [2001] 2 NWLR(pt. 697) 216, 227”
CASES CITED
STATUTES REFERRED TO
None
