CORAM

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PARTIES

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1. THE GOVERNOR OF IMO STATE

2. THE ATTORNEY GENERAL OF IMO STATE

3. ENVIRONMENTAL TRANSFORMATION COMMITTEE (Carrying on Under the name Imo Entraco)

4. THE MINISTRY OF PETROLEUM AND ENVIRONMENT, IMO STATE

APPELLANTS 

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1. E.F. NETWORK (NIG) LTD2. MR. GIDEON EGBUCHULAM RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The Respondents herein as Claimants had commenced an action at the High Court of Imo State, holden at Owerri. Being an exparte application, it was undefended but the Court refused the reliefs sought to place the matter on the Undefended List of the Court. Instead, the Court ordered the Claimants (hereinafter referred to as the Respondents) to file their statement of claim and frontload accordingly as required by the rule. The statement of claim and other processes were later filed and duly served on the Defendants, (hereinafter called Appellant) but they did not file any defence to the claim.

The Respondents filed a Motion on Notice for an Order entering judgment in their favour, the Appellants having failed or neglected to enter appearance and file their statement of defence. Upon service of the application for judgment on the Appellants, the Appellants filed an application for extension of time to enter their Memorandum of appearance and file their statement of defence etc. Yet, the Appellants failed to file the said processes to show that they were actually desirous of defending the action. Again, the Respondents filed another application for judgment in default after the time extended by the Court for the Appellants to regularize had expired. Instead of considering the application for judgment, the trial Court in its wisdom ordered that trial be conducted and Pre-trial process was ordered. During the trial, the Respondent’s witness was not cross examined by the Appellants’ counsel in Court, and the Court recorded cross examination for the witness as NIL and adjourned for defense. Upon realizing that the Defendants did not file any defence, even though they were represented by counsel, who urged the Court to allow her address the Court, the defence was foreclosed pursuant to Order 30 Rule 13 and matter was adjourned for addresses of counsel wherein the Appellant’s counsel sought to move her application for an order of Court staying proceedings and referring the parties therein (i.e. the Applicant and the Claimant) to Arbitral Panel in accordance with Clause 12 of the Service Agreement between the Parties. The application was dismissed and judgment given in favor of the Claimants. Aggrieved by the above judgment in favour of the Claimants led the appellants to appeal to the Court below which dismissed the appeal. Further aggrieved, the Appellants have filed a Notice of Appeal.

 

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HELD

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Appeal Dismissed

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ISSUES

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1.Whether the Court below was right in upholding that the commencement of this suit did not rob the trial Court of the requisite jurisdiction to entertain same, the way it was commenced.

2. Whether the Court below was right in upholding that the refusal of the appellants’ application for extension of time and leave to defend the suit did not deny the appellants their constitutional right to be heard in the matter.

 

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RATIONES DECIDENDI

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PRELIMINARY OBJECTION – MODE OF ARGUING A PRELIMINARY OBJECTION

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“Ordinarily, the accepted practice is that the respondent should argue his preliminary objection in his brief of argument to which the appellant will reply. That procedure adopted by the respondents obviates the need to separately file a Notice of Preliminary Objection. The arguments on the Preliminary Objection in the respondents’ brief of argument ordinarily supersedes the Notice earlier given. See; Lawan Abdullahi Buba Wassah & Ors Vs Tukshahe Kara & Ors (2014) LPELR -Â 24212 (2014) 12 SCM 258.” –

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RAISING A NEW POINT ON APPEAL – PROCEDURE FOR RAISING A NEW POINT ON APPEAL

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“Appeal does not lies on that point to this Court not having been taken by the Court below. It amounts to new point and there are procedure by which an appellant can raise a new point which was not taken before the Court below in this Court. Those steps must be taken before raising the new point in this Court. See; Nigeria Engineering Works Ltd. Vs. Denap Ltd. & Anor (2001) 12 SC (Pt.11) 1361 (2001) NWLR (Pt.746) 726; Raphael Agu Vs. Christian O. Ikewibe (1991) 3 NWLR (Pt.180) 385”-

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FAIR HEARING- IMPORT OF FAIR HEARING

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“Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides as follows:
“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.”(Underlining mine)
What then is fair hearing? This has long been answered by the Court, in Isiyaku Mohammed Vs. Kano N. A. (1968) 1 All NLR 424 at 426, per Ademola, CJN delivering the judgment of this Court as follows:
“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.” The term “fair hearing” has also been judicially interpreted to involve situations, whether having regard to all the circumstances of a case, the hearing may be said to have been conducted in such a manner that an impartial observer will come to the conclusion that the Court or Tribunal was fair to all the parties to the proceedings. Indeed, it is said to mean a trial conducted according to all the legal rules formulated to ensure that justice is done to all the parties to a cause or matter. See; Military Governor of Imo State & Anor Vs. Chief B.A.E. Nwauwa (1997) LPELR – 1876.”-

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PRINCIPLE OF FAIR HEARING- APPLICABILITY OF THE PRINCIPLE OF FAIR HEARING

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“Generally, a hearing cannot be said to be fair if any of the parties in a case is refused a hearing or denied the opportunity to be heard, present his case or call his witnesses. However, in Major Bello M. Magaji vs. The Nigerian Army (2008) 8 NWLR (Pt.1089) 338; (2008) 34 NSCQR (Pt.1) 108; 5 SCM 156, (2008) LPELR – 1814, the Court opined 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. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation, in the interest of fair play and justice. The Court had held further as follows:
“Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is 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.” Per Tobi, JSC. –

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RIGHT TO FAIR HEARING – WHO IS ENTITLED TO THE RIGHT TO FAIR HEARING?

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“All parties in a matter are entitled to fair hearing. In other words, both the plaintiffs and the defendants are entitled to be treated fairly. Both are entitled to justice and this must be seen to be done.” –

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RIGHT TO FAIR HEARING – WHETHER A PARTY WHO HAD AN OPPORTUNITY TO BE HEARD BUT FAILS TO UTILIZE SAME CAN BE HEARD TO COMPLAIN OF A DENIAL OF HIS RIGHT TO FAIR HEARING

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“Right to be heard could mean opportunity to be heard. Where a person is given the opportunity but fails to utilize it, it is too bad for such a person. He should not be taken serious when complaining of being denied fair hearing.” –

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FAIR HEARINGBREACH OF THE RIGHT TO FAIR HEARING- DUTY OF A PARTY ALLEGING A BREACH OF THE RIGHT TO FAIR HEARING

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“But fair hearing is not an expression of mere rhetoric or empty verbalism but a fundamental right of the individual guaranteed in the Constitution, a breach of which will nullify the proceedings in favour of a victim. It cannot be construed outside the facts, and a Party alleging the breach must show clearly that the said right is violated or breached –see Gbadamosi V. Dairo (2007) 3 NWLR (Pt. 1021) 282 SC. In other words, it is not enough for a Party alleging such a breach to merely wave the banner of fair hearing, and expect this Court to jump to attention and decide the case in his favour, just for the asking. The facts of his case must show that the said right was indeed violated. But more often than not, the cry of lack of fair hearing is misleading. See Adebayo V. A.-G., Ogun State (2008) 7 NWLR (Pt. 1085) 201, wherein this Court per Tobi, JSC, hit the nail on the head, as follows:
“Parties, who have bad cases, embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse Party and the Court, with a view to moving the Court away from the live issue in the litigation – – They make the defence in most inappropriate cases because they have nothing to canvass in their favour – – The fair hearing provision in the Constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a causal principle of law available to a Party to be picked up at will in a case and force the Court to apply to his advantage. – – It is a formidable and fundamental constitutional provision available to a Party, who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants, who have nothing useful to advocate in favour of their case, leave the fair hearing constitutional alone because it is not available to them just for the asking.” –

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CASES CITED

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None

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria, 1999

2. Imo State High Court (Civil Procedure) Rules.|

 

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