CORAM

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John Inyang Okoro – Justice of the Supreme Court of Nigeria

Adamu Jauro – Justice of the Supreme Court of Nigeria

Obande Festus Ogbuinya – Justice of the Supreme Court of Nigeria

Stephen Jonah Adah – Justice of the Supreme Court of Nigeria

Abubakar Sadiq Umar – Justice of the Supreme Court of Nigeria

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PARTIES

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ANDREW OSUMUO

APPELLANTS 

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SAMUEL UDEAJA

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CIVIL PROCEDURE, FAIR HEARING, SERVICE OF HEARING NOTICE, COUNTER-CLAIM, CONSTITUTIONAL LAW, LAND LAW, LEASE, STATUTORY INTERPRETATION, NULLITY OF PROCEEDINGS, PRACTICE AND PROCEDURE, RETRIAL

 

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SUMMARY OF FACTS

The Respondent, Samuel Udeaja, succeeded his father Dennis Ekezie Osumuo as the beneficial owner of a parcel of land known as “Mbana” land situate at Umuisiedo Village, Umudim, Nnewi (No. 17 Onitsha-Owerri Road, Nnewi), Anambra State. The land had been leased to his father by Igboatu Udeaja — the Appellant’s uncle — by an indenture of lease dated 3rd April, 1953, for a term of 99 years at an annual reserved rent of £2 (two pounds), subject to renewal. The lessee took physical possession, erected shops on the land, and paid rents regularly. In the course of the lease, the grantor’s successor (the Appellant) demanded a lump sum consideration of ₦600,000 and committed acts of trespass on the land, prompting the Respondent to institute an action at the High Court of Anambra State (Suit No. HN/93/2001) on 4th July, 2001, seeking, inter alia, a declaration of entitlement to possession, relief from forfeiture, and general damages of ₦500,000.

The Appellant denied liability, claimed that his uncle leased the land without his knowledge while he was resident in Benin City, and alleged that the Respondent’s father was irregular in rent payments, owed arrears for over twenty years, and had advertised the property for sale. He filed a counter-claim seeking a declaration that the leasehold had determined, an order of forfeiture, and ₦1,000,000.00 general damages.

On 16th June, 2003, the suit was adjourned to 29th July, 2003 for hearing. On that date, the Respondent and his counsel were absent, and the trial Court struck out the main suit for want of prosecution. The counter-claim was thereafter fixed for 19th November, 2003. The counter-claim was heard on 19th November, 2003 and 4th December, 2003 entirely in the absence of the Respondent, without any hearing notice having been ordered or served on him at the conclusion of any of the proceedings. On 20th January, 2004, the trial Court (J. C. Nwadi, J.) delivered judgment granting the Appellant’s counter-claim, also in the Respondent’s absence and without any hearing notice.

The Respondent, with leave of the Court of Appeal, filed a notice of appeal before the Court of Appeal, Enugu Division on 8th December, 2005. The Court of Appeal (Coram: M. L. Tsamiya, S. Denton-West and J. O. Bada, JJCA) in a unanimous judgment delivered on 9th April, 2008 allowed the appeal, set aside the trial Court’s decision, and ordered a retrial of the suit, holding that the proceedings were conducted in breach of the Respondent’s right to fair hearing as no hearing notice was ever ordered or served.

The Appellant, dissatisfied, appealed to the Supreme Court on 27th May, 2008 on a four-ground Notice of Appeal, seeking to set aside the Court of Appeal’s judgment and restore the trial Court’s judgment. The appeal was heard on 27th October, 2025 and dismissed on 23rd January, 2026.

 

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HELD

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The Supreme Court dismissed the appeal and affirmed the judgment of the Court of Appeal in its entirety. The Court held that Order 24 Rule 14 of the Anambra State High Court Rules, 1988, contains two distinct arms separated by the disjunctive “or”: the first arm allows a trial court to proceed to hear a counter-claim and deliver judgment after a plaintiff’s suit is struck out — presupposing the plaintiff’s presence or awareness of the proceedings; the second arm requires the court to adjourn the counter-claim and issue a notice of postponement to the plaintiff — which applies where the plaintiff was absent when his suit was terminated. Since the Respondent was absent on 29th July, 2003 when his suit was struck out, the trial Court was under a mandatory duty to serve hearing notice on him before proceeding to hear the counter-claim. The trial Court’s failure to order or effect such service at the conclusion of each day’s proceedings, including the penultimate proceeding of 4th December, 2003, was a flagrant breach of the Respondent’s constitutional right to fair hearing under Section 36(1) of the Constitution. A proceeding in breach of the right to fair hearing is void and a nullity regardless of how fairly conducted; the only remedy is a retrial/rehearing. An appellate court ordering a retrial must refrain from pronouncing on other issues so as not to prejudice the rehearing.

 

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ISSUES

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As formulated by the Appellant (adopted by the Respondent):

1. Whether, in view of the provisions of Order 24 Rule 14 of the Anambra State High Court Rules, 1988, the inflexible insistence of the Court of Appeal in voiding the judgment of the High Court on the ground that the Respondent was not served a Hearing Notice was justified?

2. Whether the Court of Appeal was right in failing to consider the fundamental issues of the competence of the appeal in view of the evident failure of the Respondent to apply first to the trial High Court to set aside the default judgment before applying to the Court of Appeal direct for extension of time to appeal out of time?

3. Whether the Court of Appeal rightly applied the principles enunciated by the Supreme Court in N. A. Williams v. Hope Rising Voluntary Society (1982) 1 All NLR 1 in granting the Respondent the extension of time within which to appeal out of time?

As adopted by the Court: Issue 1 alone, as the most determinative of the appeal.

 

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RATIONES DECIDENDI

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HEARING NOTICE — NATURE, PURPOSE AND JURISDICTIONAL SIGNIFICANCE OF SERVICE OF HEARING NOTICE

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“Hearing notice is a document, which is issued from the Court registry, which gives legal notification to parties in a suit and the dates on which it would be heard, see Darma v. Ecobank (Nig.) Ltd. (2017) 9 NWLR (Pt. 157) 480. Service of hearing notice on a truant party ignites the jurisdiction of a Court over a matter. Where it is necessary to serve a hearing notice, but it is not effected on a party, the Court will be robbed of the vires to try or continue to hear an action and any orders flowing from it will be enveloped in the dense of fog of nullity, see John Andy Sons & Co. Ltd v. Mfon (2007) 4 WRN 173; Mbadinuju v. Ezuku (1994) 10 SCNJ 109; Nasco Mgt. Service Ltd. v. A. N. Amaku Trans Ltd. (2003) 2 NWLR (Pt. 804) 290; Mpama v. FBN Plc. (2013) 5 WLR (Pt. 1346) 177; S & D Const. Ltd v. Ayoku (2011) 13 NWLR (Pt. 1265) 487.” – Per Obande Festus Ogbuinya, JSC

 

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ORDER 24 RULE 14 ANAMBRA STATE HIGH COURT RULES — INTERPRETATION OF THE TWO ARMS OF THE PROVISION AND WHEN SERVICE OF HEARING NOTICE IS MANDATORY

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“It is gleanable from the phraseology of the provision that it owns binary arms. This is because of the disjunctive conjunction ‘or’ which the draftsman employed therein. The first arm grants the Court, usually a trial Court, the unbridled licence to proceed to entertain a counter-claim and render judgment, on the footing of the evidence adduced by the defendant, after a plaintiff’s suit is struck out. This arm presumes the presence of the plaintiff, the defendant’s adversary, or, at least, his knowledge of the proceeding, during the gestation period of the counter-claim. The second arm equips the trial Court with the vires to adjourn the determination of the counter-claim and issue notice of the postponement to plaintiff. This arm, in sharp contrast with the first arm, envisages a situation where the plaintiff was absent during the proceeding that aborted the lifespan of his suit, hence the necessity for a notice of adjournment. Thus, whilst under the first arm of the provision, notice of proceeding to the plaintiff may be unnecessary, if he is apprised of it, it is a condition sine qua non for the second arm.” – Per Obande Festus Ogbuinya, JSC

 

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HEARING NOTICE — COURT IS UNDER A DUTY TO ORDER ISSUANCE AND SERVICE OF HEARING NOTICE FROM DAY TO DAY INCLUDING DATE OF JUDGMENT ON AN ABSENT PARTY

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“It is an elementary law that it is incumbent on a Court to order for the issuance and service of hearing notice from day to today, inclusive of date of delivery of judgment, on an absent party, see Darma v. Ecobank (Nig.) Ltd (supra); Apeh v. PDP (supra). Curiously, the trial Court, with due reverence, found it convenient not to order for the issuance of hearing notice to be served on the respondent at the end of each day’s proceeding, including the penultimate proceeding of 4th December, 2003, which birthed the decision sought to be impugned and ostracised before the lower Court, notwithstanding that the respondent was never a particeps in the proceeding. The failure, a costly faux pas, flagrantly fractured this hallowed principle of law which is designed and tailored towards ensuring fair hearing to parties in proceeding.” – Per Obande Festus Ogbuinya, JSC

 

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FAIR HEARING — PARAMETERS FOR ENSURING FAIR HEARING IN JUDICIAL AND QUASI-JUDICIAL PROCEEDINGS

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“In a Judicial or quasi-Judicial body, a hearing, in order to be fair, must include the right of the person to be affected: (i) to be present all through the proceedings and hear all the evidence against him; (ii) to cross-examine or otherwise confront or contradict all the witnesses that testify against him; (iii) to have read before him all the documents tendered in evidence at the hearing; (iv) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial to the party, save in recognized exceptions; (v) to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and (vi) to give evidence by himself, call witnesses if he likes, and make oral submissions either personally or through a counsel of his choice.” – Per Obande Festus Ogbuinya, JSC (adopting Per Nnaemeka-Agu, JSC in BABA v. N.C.A.T.C. (1991) 5 NWLR (Pt. 192) 388 at 423)

 

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BREACH OF FAIR HEARING — A PROCEEDING IN BREACH OF THE RIGHT TO FAIR HEARING IS A NULLITY REGARDLESS OF THE DEGREE OF FAIRNESS, DEXTERITY OR OBJECTIVITY INJECTED INTO IT

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“It the fixed posture of the law that where a party’s inviolable right to fair hearing is flouted, as in this case, no matter the quantum of fair-mindedness, dexterity, artistry and objectivity injected into the proceeding hosting the breach, it will be trapped in the intractable web of nullity, see Nyeson v. Peterside (2016) 7 NWLR (Pt. 1512) 452; C. K & W. M: C. Ltd v. Akingbade (2016) 14 NWLR (Pt. 1533) 487; Eze v. Unijos (supra); Ezenwaji v. U.N.N (2017) 18 NWLR (Pt. 1598) 485; Poroye v. Makarfi (2018) 1 NWLR (Pt. 1599) 91; APC v. Nduul (2018) 2 NWLR (Pt. 1602) 1.” – Per Obande Festus Ogbuinya, JSC

 

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BREACH OF FAIR HEARING — PROOF OF BREACH CARRIES WITH IT INHERENT MISCARRIAGE OF JUSTICE AND THE LAW DOES NOT REQUIRE PROOF OF DAMAGES OR LOSSES CONSEQUENT UPON THE BREACH

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“The law does not require the respondent to prove damages or losses he incurred consequent upon a breach of his right to fair hearing, see Oshiomole v. Airhiavbere (2013) 7 NWLR (Pt. 1353); Olayioye v. Oyelaran I (supra). A proof of breach of right to fair hearing, as happened in the case which parented the appeal, carries with it a miscarriage of justice. Put differently, a miscarriage of justice is inherent in a breach of a right to fair hearing, see Mpama v. FBN Plc. (supra) Eze v. Unijos (2017) 17 NWLR (Pt. 1593) 1; Thomas v. FJSC (2019) 7 NWLR (Pt. 1671) 284.” – Per Obande Festus Ogbuinya, JSC

 

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NULLITY — LEGAL MEANING AND CONSEQUENCE OF A DECISION OR PROCEEDING TAINTED WITH NULLITY

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“Nullity denotes: ‘Nothing; no proceeding; an act or proceeding in a case which the opposite party may treat as though it had not taken place; or which has absolutely no legal force or effect’, see Lasisi v. State (2013) 12 NWLR (Pt. 1367) 133 at 146, per Ngwuta JSC. Nullity bears the stigma of corrosive consequence in law. If a decision or proceeding is smeared with a tinge of nullity, it is void and taken as if it was never given or made, see Okoye v. Nigeria Const. & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501; Bello v. INEC (2010) 8 NWLR (Pt. 1196) 342. According to the law, a null decision or proceeding does not shower any ounce of enforceable right on its beneficiary party, who is armed with it, nor does it impose any obligations on its victim party.” – Per Obande Festus Ogbuinya, JSC

 

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BREACH OF FAIR HEARING — WHERE RIGHT TO FAIR HEARING IS BREACHED, THE ONLY ORDER AN APPELLATE COURT CAN MAKE IS AN ORDER FOR RETRIAL OR REHEARING

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“The settled position of the law is that ‘Once there is such a denial of the said right {right to fair hearing}, the only order that could be made on appeal is one for re-trial or re-hearing. This is to enable the appellant to be properly heard,’ see Kalu v. State (2017) 2 NWLR (Pt. 1442) 522 at 547, per Nweze, JSC; C.K & W.M.C Ltd. v. Akingbade (supra); Akingbola v. FRN (supra); Ahmed v. Read Trustees, AKRCC (2019) 5 NWLR (Pt. 1665) 300; Fapohunda v. R.C.C.N. Ltd. (2019) 3 NWLR (Pt. 1658) 163.” – Per Obande Festus Ogbuinya, JSC

 

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RETRIAL ORDER — WHERE AN APPELLATE COURT ORDERS A DE NOVO HEARING, THE LAW FORBIDS IT FROM TREATING ANY OTHER ISSUES IN THE APPEAL SO AS NOT TO PREJUDICE ANY POINT THAT MAY ARISE DURING REHEARING

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“Once an appellate Court intends to order, or orders for a de novo hearing, the law forbids it from treating any other issues in the appeal so as not to prejudice any point that may germinate for consideration during the rehearing proceedings, see C.K. & W.M.C Ltd. v. Akingbade (supra); Ovunwo V. Woko (2011) 17 NWLR (Pt. 1277) 522; Karaye v. Wike (2019) 17 NWLR (Pt. 1701) 355.” – Per Obande Festus Ogbuinya, JSC

 

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LITERAL CANON OF INTERPRETATION — WHERE A STATUTORY PROVISION IS CLEAR AND UNAMBIGUOUS, THE COURT MUST ACCORD IT ITS ORDINARY GRAMMATICAL MEANING WITHOUT LINGUISTIC BEAUTIFICATION

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“The ancient rule, which dates from antiquity, commands the Court, where a provision of a law is comprehension-friendly, as here, to accord it its ordinary grammatical meaning without garnishing it with any atom of linguistic beautification that has the tendency to belabour and befog its appreciation and obscure the intention of the legislature.” – Per Obande Festus Ogbuinya, JSC

 

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FAIR HEARING — THE CONSTITUTIONAL DOCTRINE OF FAIR HEARING MANDATES COURTS TO CREATE A CONGENIAL AND EGALITARIAN MILIEU FOR PARTIES TO VENTILATE THEIR GRIEVANCES AND ACCORDS EQUAL TREATMENT TO BOTH SIDES

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“The constitutional doctrine of fair hearing, which traces its paternity to divinity, mandates the Courts, on all the rungs of the judicial ladder, to willy-nilly create a congenial, egalitarian and hospitable milieu for parties to ventilate their perceived grievances in the temple of justice. It decrees, under pain of nullity of proceeding in default, that Courts shall accord equal treatment, opportunity and consideration to the cases of a parties. This is encapsulated in the maxim: Audi alteram partem. In the determination of legal rights of parties, justice must not only be done but must be manifestly and undoubtedly seen to be done.” – Per Obande Festus Ogbuinya, JSC

 

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HEARING NOTICE — A HEARING NOTICE MUST NOTIFY A PARTY OF THE DATE AND PLACE OF HEARING AND MUST CORRESPOND WITH THE DATE FIXED FOR HEARING

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“The settled position of the law is that a hearing notice must notify a party of the date and place of hearing of the proceeding for which it is being served. It must be against the date fixed/scheduled for hearing, see Darma v. Ecobank (Nig.) Ltd. (supra); Achuzia v. Ogbomah (supra); Mpama v. FBN Plc (2013) 5 NWLR (Pt. 1436) 176.” – Per Obande Festus Ogbuinya, JSC

 

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HEARING NOTICE — IT IS A CONSTITUTIONAL REQUIREMENT THAT BIRTHED THE DOCTRINE OF FAIR HEARING AND ONCE VIOLATED THE PROCEEDING IS A NULLITY REGARDLESS OF HOW WELL CONDUCTED

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“Hearing notice is a process which is issued by the Court which gives legal notification to parties in suit and the dates and time on which the suit will be heard. It is a constitutional requirement which birthed the doctrine of fair hearing. Once there is violation of fair hearing, the proceeding no matter how well conducted, it is a nullity.” – Per Obande Festus Ogbuinya, JSC (as further amplified by Per Abubakar Sadiq Umar, JSC in his concurring judgment)

 

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CASES CITED

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STATUTES REFERRED TO

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• Constitution of the Federal Republic of Nigeria 1999 (as amended) — Section 36(1)

• Anambra State High Court (Civil Procedure) Rules, 1988 — Order 24 Rule 12; Order 24 Rule 14

 

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OTHER CITATIONS

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CLICK HERE TO READ FULL JUDGMENT 

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COUNSEL

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1.   Joy Etiaba, Esq., with him, E. E Nnamani, Esq.For Appellant(s)

2.   Chijioke Udeogu, Esq.For Respondent(s)