Legalpedia Citation: (2015) Legalpedia (CA) 21419
In the Court of Appeal
Fri Mar 20, 2015
Suit Number: CA/L/838/2006
CORAM
PARTIES
1.ALHAJI TIAMIYU OLANREWAJU ASHIRU
2. MR. JEREMIAH OLUSEGUN OGUNLOWO
3. MR. OMOBOWALE OGUNLOWO
APPELLANTS
1.H.R.H. OBA LATEEF ABAYOMI DAUDA
2.CHIEF BUARI ALADE OLOTO
3.CHIEF TAJUDEEN ODUBIYI4.CHIEF YAYA IDRIS (For themselves and on behalf of Onitire Chieftaincy Family)
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Respondents had initially instituted a land case at the high court sitting at Ikeja. The court granted the Respondents application restraining the 1stAppellant from embarking on further construction works on the disputed land. The case was initially before Martins J. During the said period, as a result of the inadvertence and failure of former Counsel representing the Respondents to attend Court on the date scheduled for trial, the Respondents’ case was struck out. Upon an application by the Respondents, the matter was relisted.
The matter was transferred to two other judges at different occasions but the Respondents were on several occasions absent from court. The Appellants had actually filed a counter-claim before the Court. The Respondents applied for a change in counsel and this was granted, then the Court announced the adjournment of the matter for hearing of the Appellants counter-claim. It was at this point that the Respondents became aware that their matter had been struck out.
However, on several occasions when the matter came up before the Court the Respondents were absent claiming that no hearing notice had been served on them. It was on this ground the Respondents opposed the hearing of the counter-claim. The trial Court held that since there was no record that hearing notices were issued and served on the Respondents for the proceedings, same was set aside for breach of the Respondents’ constitutional right to fair hearing. Dissatisfied with the ruling, the Appellants have appealed to this Court.
HELD
Appeal Dismissed
ISSUES
1.Whether the learned trial judge was right in holding that in view of lack of specific order striking out the Plaintiff’s claims, the Plaintiff/Respondents claims subsist notwithstanding the fact that the suit was severally adjourned for hearing of the 1st Defendant/Appellants Counter Claim?
2.Whether in the circumstance of this case there was a breach of the Plaintiff/Respondents’ right to fair hearing?
RATIONES DECIDENDI
ISSUANCE OF HEARING NOTICE – FAILURE TO ISSUE HEARING NOTICE WHICH RESULTS IN A PARTY’S ABSENCE IN COURT IS A DENIAL OF JUSTICE
“In the case of Credit Alliance Fin. Serv Ltd v. Mallah (1998) 10 NWLR (Pt. 569) Pats-Acholonu JCA (as he then was) of blessed memory observed:
“It is long been settled that where a party ought to be issued a hearing notice but none was forthcoming or given so that such failure makes him absent in court, he has been effectively denied justice for he has not been heard and a judgment ruling or decision given against him is null and void. See Dawodu & Anor v. Ologundudu & Ors (1986) 4 NWLR (Pt. 33) 104 @ 114 and Okafor v. A.G. Anambra State (1991) 6 NWLR (Pt. 200) 659 @ 680” PER C.E. IYIZOBA, J.C.A
BRIEF OF ARGUMENT – A BRIEF MUST CONFINE ITSELF TO THE ISSUES FORMULATED FROM THE GROUNDS OF APPEAL
“The law is that a brief must confine itself to the issues for determination formulated from the grounds of appeal. Okolo v. Union Bank of Nigeria (1998) 2 NWLR (pt. 539) 618.” PER C.E. IYIZOBA, J.C.A
HEARING NOTICE – THE COURT MUST ORDER A FRESH HEARING NOTICE WHERE THERE IS AN ADJOURNMENT
“It is a basic principle of law that on any occasion a party fails to attend court and the case is adjourned to another date; the Court must order that fresh hearing notice be issued and served on the party. If this is not done, how is the party to know that the hearing will come up on that particular day? Any hearing conducted under such circumstances stands the risk of being set aside as a nullity.” PER C.E. IYIZOBA, J.C.A
CASES CITED
STATUTES REFERRED TO
1.Constitution of the Federal Republic of Nigeria, 1999
2.High Court of Lagos State
3.Civil Procedure Rules 1994