CORAM
PARTIES
1. MR. ADEWUNMI ADEYINKA 2. MISS ADEWUNMI ADEJOKE 3. MRS OYEBODE ADEPONLE 4. MRS. ADEWUNMI ADERONKE APPELLANTS
1. PASTOR KELVIN AGBAKWURU 2. DIVINE MISSION ASSEMBLY 3. WEMA BANK PLC RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellants as Defendants to Counter Claim by a Motion on Notice sought an order of the High Court of Lagos State, setting aside its judgment dated 19th April 2013, wherein the court granted the claims of the 1st and 2nd Respondents as Counter Claimants. The learned trial Judge in a ruling found that there was no basis upon which it could exercise its discretion to review its decision and consequently dismissed the Appellant’s motion. Dissatisfied with the ruling, the Appellants appealed to this Court. The gravamen of the case of the Appellant in the lower Court is that he was not served the relevant processes, as the processes served on their counsel on record did not amount to proper service, as the counsel was no longer representing the Appellants. The 1st and 2nd Respondents on the other hand, argued that there was no evidence before the lower court to the effect that the counsel on record had ceased to represent the Appellants, as the counsel did not file any process to withdraw his representation, and all processes including hearing notice before the hearing of the Counter-Claim served on the Appellants through their counsel were duly received and acknowledged.
HELD
Appeal Dismissed
ISSUES
Whether the learned trial Judge rightly dismissed Appellants application to set aside its judgment. Whether the trial Court breached the Appellants right to fair hearing.
RATIONES DECIDENDI
RE-OPENING A CASE – WHETHER A COURT IS ALLOWED TO RE-OPEN A CASE AFTER DELIVERING ITS JUDGMENT
“A Court of law when it has given judgment on a matter brought before it, after the parties have joined issues, aired their grievances and canvassed arguments in support of their respective positions, is generally precluded from re-opening it, as its duty as far as the law is concerned, is done. Thus, upon judgment given in a matter, the usual course of action for a party who is dissatisfied with the decision is to appeal to a higher Court for redress.
See: Nigerian Army V Iyela 2008 LPELR 2014 SC; Abba V Adikpe & Ors (2010) LPELR 3551 (CA); Nwude V FRN & Ors 2015 LPELR 24647 (C.A)”.
SETTING ASIDE OF JUDGMENT – INSTANCES WHEN A COURT CAN SET ASIDE A JUDGMENT
“Notwithstanding the above, the law allows for certain circumstances where even a judgment on the merits may be set aside by the same Court who made the decision. These situations are:
1. When the judgment was obtained by fraud; or
2. When the judgment is a nullity such as when the Court itself was not competent; or
3. When the Court was misled into giving judgment under a mistaken belief that the parties had consented to it; or
4. Where the judgment was given in the absence of jurisdiction; or
5. Where the procedure adopted was such as to deprive the decision or judgment of the character of legitimate adjudication.
See: APC v. Nduul & Ors (2017) LPELR-42415(SC); Abubakar & Ors v. Cement Company Of Northern Nigeria (2018) LPELR-44061(CA); and NPC v. Roper & Ors (2018) LPELR-44920(CA)”.
DEFAULT JUDGMENT – WHETHER A COURT HAS THE DISCRETION TO SET ASIDE A DEFAULT JUDGMENT
“When it comes to Default Judgment, that is judgment entered on account of a partys failure to comply with a procedural step or his failure to show up for trial, the rule as to when a Court may set aside its own decision is not as stringent as stated above. In matters that are based on default judgment, the Court has the discretion to set aside its decision and reopen the case for full trial”.
DEFAULT JUDGMENT – WHETHER A DEFAULT JUDGMENT CAN BE SET ASIDE
“In Bello v. INEC & Anor. (2010) LPELR-767(SC), the Supreme Court stated the position of the law thus:
“Any judgment in default of pleadings or appearance is not a final judgment since both parties were not heard on the merit of the case. The judgment was obtained by failure of the defendant to follow certain rules of procedure. Where the Court has not pronounced a judgment on merits or by consent, such a judgment may be set aside by any trial Court in the judicial division where the judgment was obtained.”
See: Teno Engineering Ltd. V. Adisa (2005) LPELR-3142(SC); Skye Bank v. Uwaleke (2018) LPELR-45016(CA); and Stemco Ltd v. Inyang (2018) LPELR-44303(CA)”.
SERVICE OF COURT PROCESS – WHETHER THE SERVICE OF A COURT PROCESS ON A PARTY’S COUNSEL IS CONSIDERED COMPETENT SERVICE
The first problem with Appellants position is that service on a partys counsel is considered good service in our legal system. The Apex Court in Saleh v. Abah & Ors (2017) LPELR-41914(SC) (Pp. 10-11, Paras. C-B) Per BAGE, J.S.C. stated thus on the point:-
“With regards to the first and main plank of the Respondents’ Preliminary Objection, we are of the emphatic opinion that since the Counsel to the respondents was served and he did not deny such service, there is effective and competent service. The contention that the Respondents should have been served personally is misplaced. Service on the Counsel, S.I. Ameh, SAN, being the legally and formally acknowledged representative of the Respondents, is good, competent and effective enough. Both Respondents were duly served via their counsel, who so hold. The real essence of the Supreme Court Rules on Notice (which is to prevent any part being taken by surprise which in a significant way amounts to denial of adequate opportunity to be heard) is achieved as both first and second Respondents were actually (and more then constructively) served via Counsel. And there is no dispute as to this state of affairs. Any assumed irregularity is only as to form, rather than substance. Any seeming irregularity does not bear on our jurisdiction and does not amount, by any definition, to denial of notice to the Respondents.”
See: Adegbite & Ors v. Advanced Engineering Consultants & Anor (2017) LPELR-41965 (CA); and Ezechukwu v. Onwuka (2005) LPELR-6115(CA)”.
LEGAL PRACTITIONER CHANGE OF COUNSEL – PROCESS FOR THE CHANGE OF COUNSEL
“Furthermore, the Appellants failed to follow the process set by law for the change of counsel, which is to approach another lawyer, who will in turn inform the Court via a Notice of Change of Counsel.
See: Agoro V. Aromolaran & Anor. (2011) LPELR-8906 (CA); Ojonye v. Onu & Ors (2018) LPELR-44212(CA); and Okoh & Ors v. Nwobodo & Anor (2017) LPELR-42726(CA)”.
PARTY TO AN ACTION –DUTY ON A PARTY TO AN ACTION TO BE DILIGENT IN DEFENDING HIS CASE
“A fortiori, equity aids the diligent and a Party ought to follow up his matter with diligence, especially in a situation where the partys counsel has supposedly abandoned the case as alleged in this appeal. A simple visit to the Courts registry would have availed the Appellants a great deal. A Defendant has the duty to defend his case. See: Majekodunmi & Ors v. Ogunseye (2017) LPELR-42547(CA)”.
MISTAKE OF COUNSEL – EXCEPTION TO THE RULE ON WHEN THE MISTAKE OF COUNSEL WILL NOT BE VISITED ON THE CLIENT
“It should also be pointed out that the circumstances of this appeal does not fall within the parameters of what constitutes visiting the sin of counsel on the Client. This is an instance of an indolent party reaping the fruits of his indolence. Assuming it was the sin of the counsel, this would constitute a mistake so grievous as to make it of a nature as can be visited upon the Appellants. See: Nyako v. Adamawa State House Of Assembly & Ors (2016) LPELR-41822(SC); Mobil Producing (Nig) Unltd v. Hope (2016) LPELR-41191(CA) and Prudent Bank Plc & Ors. v. Obadaki (2010) LPELR-9200(CA)”.
PRINCIPLE OF FAIR HEARING – CONCEPT OF THE PRINCIPLE OF FAIR HEARING
“The right to fair hearing is a sacred, sacrosanct and fundamental, as it is entrenched in the grundnorm, that is in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) . At its core, the principle of fair hearing entails giving both sides to a dispute or matter before a Court of law the opportunity to be heard before a decision that would bind them is reached”.
FAIR HEARING – WHAT IS FAIR HEARING?
“The Supreme Court in the case of Zenith Plastics Industries Ltd v. Samotech Ltd (2018) LPELR-44056(SC) (Pp. 11-12, Paras. C-D), Per KEKERE-EKUN, J.S.C., gave a wholesome exposition of the principle of fair hearing thus:
What is fair hearing? In Duke Vs Govt. of Cross River State & Ors (2013) 8 NWLR (Pt.1356) 347 @ 366 C it was held by this Court as follows: ‘
The term ‘fair hearing’ within the context of Section 36 (1) of the 1999 Constitution , is that a trial ought to be conducted in accordance with all the legal norms designed to ensure that justice is done at all cost to all parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and given ample opportunity to react or respond thereto.”
In Mohammed Vs Olawunmi & Ors (1990) 2 NWLR (Pt.133) 458 @ 485 B-C it was held per Nnaemaka-Agu, JSC,
“The right to fair hearing entrenched in Section 33 (1) of the 1979 Constitution entails not only hearing a party on any issue which could be resolved to his prejudice, but also ensuring that the hearing is fair and in accordance with the twin pillars of justice, namely audi alteram partem and nemo judex in causa sua.”
Further, in Pam & Anor. Vs Mohammed (2008) 16 NWLR (Pt.1112) 1 @ 48 E-F His Lordship, Oguntade, JSC stated thus:
“The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case; the crucial determinant is the necessity to afford the parties equal opportunity to put their case before the Court before the Court gives its judgment.” See also: Denloye Vs Medical and Dental Practitioners Disciplinary Committee (1968) LPELR- 25526 (SC); (1968) 5 NSCC 260.
See: Hassan v. Unity Bank (2018) LPELR-45261(CA); and Ezeofor v. Honey King Media Ltd (2018) LPELR-44558(CA)”.
BREACH OF FAIR HEARING – CONSEQUENCE OF A BREACH OF FAIR HEARING
“The crucial nature of this principle is seen in the consequence for its breach, which is that the proceedings, no matter how otherwise well conducted would amount to an exercise in futility. The reason for this is not farfetched, as justice cannot be said to have been done where a party is judged without the opportunity of stating his own side of the story.
See: Ojo v. Nigeria Customs Service Board (2018) LPELR-44104(CA)”.
BREACH OF THE RIGHT TO FAIR HEARING – WHETHER A PARTY WHO WAS GIVEN REASONABLE OPPORTUNITY TO CONDUCT HIS CASE BUT FAILS TO UTILIZE SAME CAN BE HEARD TO COMPLAIN OF A BREACH OF HIS RIGHT TO FAIR HEARING
“It must however be stated for the umpteenth time, that an opportunity to be heard is eminently distinct from being heard at all costs. While it is true that justice rushed is most times justice crushed, justice delayed is justice denied. Justice is indeed a three way traffic and a party will not be allowed to hold the Court of law and indeed the public at large to ransom in the guise of adherence to fair hearing. The implication of the foregoing is that where a party is given a reasonable amount of time as prescribed by the law to conduct its case and he fails to so do, the consequence of his omission cannot be said to constitute breach of the right to fair hearing.
See: Todays Cars Ltd v. Lasaco Assurance Plc & Anor (2016) LPELR-41260(CA); and Ahmad v. Sahab Enterprises (Nig) Ltd & Ors (2016) LPELR-41313(CA)”.
HEARING NOTICE – WHETHER THE FAILURE TO SERVE HEARING NOTICE OF A CASE ON A PARTY CONSTITUTES A VIOLATION OF THE PRINCIPLE OF FAIR HEARING
“There is no gainsaying that a Hearing Notice is a crucial aspect of our proceedings and must be issued and duly served on party who has been absent from the proceedings when his matter has been fixed for hearing. The Supreme Court in Achuzia v. Ogbomah (2016) LPELR-40050(SC)(P. 29, Paras. B-D) Per SANUSI, J.S.C, held thus:
“Failure to serve a hearing notice of date for hearing of a case on a party runs riot and violent to the principle of fair hearing as enshrined in the 1999 Constitution and any proceedings held or taken in the absence of a party who was not put on notice of the date of such proceedings is a nullity and therefore must be annulled. See Mobil Nigeria Plc vs Ezekiel Shut Pam (2000) 5 NWLR (pt 657) 506 at 529; Wema Bank Nigeria Limited & 2 Ors vs S.O. Odulaja & 4 Ors (2001) FWLR (pt 17) 138 at 142/143”.
See: NUT Taraba State & Ors v. Habu & Ors (2018) LPELR-44057(SC); Oloruntogbe v. Skye Bank (2017) LPELR-42717(CA); and Abdulhamid v. Babagana (2017) LPELR-43393(CA)”.
CHANGE OF COUNSEL – REQUIREMENT OF RULE 29 (2) OF RULES OF PROFESSIONAL CONDUCT FOR LEGAL PRACTITIONERS, 2007 ON CHANGE OF COUNSEL
“For the purposes of this matter, with respect to the alleged change of counsel of the appellant, Rule 29 (2) of the aforesaid Rules of Professional Conduct for Legal Practitioners, 2007; is apposite. It provides inter alia:
“29(2) Where in litigation a client changes his lawyer, both the old lawyer and new lawyer shall give notice of the change to the Court.” –
“LAWYER” –DEFINITION OF “LAWYER”
“And for the avoidance of doubt, “Lawyer” means legal practitioner as defined by the Legal Practitioners Act, as interpreted by Rule 56 of the Rules of Professional Conduct for Legal Practitioners, 2007”.
DUTIES OF LEGAL PRACTITIONER – DUTY ON LEGAL PRACTITIONERS TO OBEY THE RULES OF PROFESSIONAL CONDUCT, 2007
“Therefore, it is expected of legal practitioners, who have been engaged by litigants, not to abandon their clients mid-stream, for whatever reason, without the Court being notified of their recuse from any matter that they were engaged to handle. It is equally incumbent on the new counsel taking over any matter, to also notify the Court of the change of counsel, in respect of the matter. Hence, it is appropriate for one to admonish Legal practitioners to obey their own Rules of Professional Conduct, 2007.
PRINCIPLE OF FAIR HEARING- WHETHER THE PRINCIPLE OF FAIR HEARING CAN BE RESORTED TO ARBITRARILY BY LITIGANTS TO REMEDY ALL DEFICIENCIES IN AN ACTION IN TRIAL COURTS
“Let me draw the curtain on this appeal, by recounting the judicial words on marble, of his Lordship, Niki Tobi, JSC., God bless his soul, when in circumstances not too dissimilar to the instant case, where parties just latch unto the principle of fair hearing, willy-nilly, as a talisman, a cure – for- all deficiencies in an action in trial Courts. In Orugbo & Anor. v. Una & Ors (2002) 9-10 S.C.61; (2002) LPELR – 2778 (SC) @ 36-37 , the learned Law Lord, stated that:
“It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial Court. The fair hearing Constitutional provision is designed for both parties in litigation, in the interest of fair play and justice. The Courts must not be given a burden to the provision which it will not carry or shoulder. I see that in this appeal. Fair hearing is not a cut – and – dry principle which the parties can, in abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the Court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.”
CASES CITED
None
STATUTES REFERRED TO
Rules of Professional Conduct for Legal Practitioners, 2007|
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