CORAM

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OBANDE FESTUS OGBUINYA

FATIMA OMORO AKINBAMI

ABDULLAHI MAHMUD BAYERO

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PARTIES

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THE HON. MINISTER OF COMMUNICATION AND DIGITAL ECONOMY

APPELLANTS 

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PRINCE OWEN ALAO ADENIRAN

2. CHIEF ABIBU AJIBAWO

3. CHIEF SIKIRU ODEDE

4. MR. AYINLA FALOLA

5. MR. BABATUNDE ABIOLA

6. CHIEF AJIKE OGUNBIYI (For themselves and on behalf of the members of Oguntoyinbo, Abiola, Falolu & Ilo families)

7. HON. MINISTER OF WORKS AND HOUSING

RESPONDENTS 

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AREA(S) OF LAW

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CONSTITUTIONAL LAW, CIVIL PROCEDURAL LAW, APPEAL, PRACTICE AND PROCEDURE.

 

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SUMMARY OF FACTS

This appeal queries the correctness of the decision (ruling) of the High Court of Lagos State (trial Court). The 1st – 6th Respondents were the accredited representatives of Oguntoyinbo, Abiola, Falolu and Ilo families who exercised diverse acts of ownership and possession over a parcel of land situate at Ipaja, Lagos State. On 12th December, 1974 the Federal Government of Nigeria (FGN) by a Government Notice publicized in an official Gazette acquired the parcel of land (the land in dispute) for the purpose of International Radio Monitoring Station. The FGN which took over possession of the land did not serve acquisition notice on the respondents or their tenants nor paid compensation. The FGN handed the land in dispute to the 7th Respondent which allotted same to the appellant’s ministry which occupied it through the defunct Nigerian Telecommunications (NITEL). The appellant through its agent the NITEL failed to use it for the specific purpose of acquisition. Contrarily, the officials of NITEL (which has been privatized) disposed off some portions of it to private individuals for purposes different from the acquisition. The respondents made repeated demands for the release/return of the disputed land to them but to no avail, hence they beseeched the trial court, the trial court granted prayers 1 and 2 of the respondents and refused prayer 3. The appellants also filed an application at the trial court to set aside its decision on the grounds of lack of fair hearing. The trial court heard the application and also dismissed same. The appellant was dissatisfied with the ruling of the trial court and has consequently lodged an appeal at this instant court.

 

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HELD

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Appeal allowed; decision of the trial court set aside.

 

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ISSUES

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1. Whether in the circumstances of this case, the Appellant was denied fair hearing such as would strip the lower court of jurisdiction in this matter, render the proceedings incompetent and the outcome void.

2. Whether the trial court was right in granting a declaratory relief in view of the facts and circumstances of this case.

3. Whether at the time of filing this suit and pursuant to the provisions of Section 49 of the Land Use Act 1978, the Federal Government held the land at Ipaja; the subject matter of this Appeal in perpetuity.

4. Whether the Ruling (Judgment) of the lower Court delivered on the 19th of May, 2015 appealed against is not against the weight of the evidence before it.

 

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RATIONES DECIDENDI

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ISSUES FOR DETERMINATION – IMPORT OF ISSUES IN AN APPEAL

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A clinical audit of the stubborn issue exposes its mission in the appeal. The meat of the issue is canalised within a narrow compass. It chastises the legality vel non of the lower court’s decision (ruling), delivered on 19th May, 2015, in the absence of the appellant. The pith of the appellant’s chief grievance, indeed his trump card on the knotty issue, is that the decision (ruling), rendered on 19th May, 2015, without proper service of hearing notice on the appellant, was an infraction of the appellant’s inviolable right to fair hearing as guaranteed by the sacrosanct provision of section 36(1) of the Constitution, as amended. It is a subtle summon on this court to engage in the exploration of the forensic contours of fair hearing within the firmament of constitutional law. Per – OBANDE FESTUS OGBUINYA JCA

 

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FAIR HEARING – MEANING OF FAIR HEARING

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By way of prefatory remarks, fair hearing denotes a trial which is conducted in accordance with all the legal rules formulated to ensure that justice is done/dished out to parties to the cause, see Eze v. FRN (2017) 15 NWLR (Pt. 1589) 433; Ardo v. INEC (2017) 13 NWLR (Pt. 1583 450; Regt. Trustees, P.C.N. v. Etim (2017) 13 NWLR (Pt. 1581) 1; Akingbola v. FRN (2018) 14 NWLR (Pt. 1640) 395; La Wari Furniture & Baths Ltd. v. FRN (2019) 9 NWLR (Pt. 1677) 262. Per – OBANDE FESTUS OGBUINYA JCA

 

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FAIR HEARING – HISTORY AND ESSENCE OF FAIR HEARING

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The ancient concept of fair hearing traces its paternity to divinity. It was a common law doctrine which has metamorphosed into our jurisprudence and, firmly, enshrined in section 36(1) of the Constitution, as amended.  It donates to the citizens the inviolate right to ventilate their grievances on the altar of the two concrete pillars of natural justice videlicet: audi alteram partem – hear the other side – and nemo judex in causa sua – no one should be a judge in his own case.

The whole essence of fair hearing, which is coterminous with fair trial, connotes giving parties to any proceedings, be it judicial, quasi-judicial or administrative proceeding, an equal opportunity to present their cases. It follows, that fair hearing is, totally, divorced from correctness of a decision. It centres on the cardinal principle that a fair-minded person who watched the proceedings, before a court or administrative or quasi judicial body, should conclude that it exhibited even handedness/fairness in apportioning justice to the parties, see O.O.M.F. Ltd v. NACB (2008) 12 NWLR (Pt. 1098) 412; Nwanegbo v. Olawole (2011) 37 WRN 101; Kim v. State (1992) 4 NWLR (Pt. 233) 17; Newswatch Comm. Ltd. v. Atta (2006) 12 NWLR (Pt. 993) 144; FRN v. Akabueze (2010) 17 NWLR (Pt. 1223) 525; S & D Const. Co. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 487; Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522; Nigeria Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56; J.S.C., Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1;  Mpama v. FBN Plc (2013) 5 NWLR (Pt. 1346) 176; Aba b. Monday (2015) 14 NWLR (Pt. 1480) 569; Gov., Zamfara State v. Gyalange (2013) 8 NWLR (Pt. 1357) 462; Achuzia v. Ogbomah (2016) 11 NWLR (Pt. 1522) 59; Danladi v. Dangari (2015) 2 NWLR (Pt. 1442) 124; Labour Party v. Bello (2017) 2 NWLR (Pt. 1548) 148; Darma v. Ecobank (Nig.) Ltd. (2017) 9 NWLR (Pt. 1571) 480; Olayioye v. Oyelaran I (2019) 4 NWLR (Pt. 1662) 351. Per – OBANDE FESTUS OGBUINYA JCA

 

 

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FAIR HEARING – ATTRIBUTES OF FAIR HEARING ENSHRINED IN THE CONSTITUTION

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The case-law has invented some essential attributes of fair hearing as enshrined in section 36 (1) of the Constitution, as amended. These characteristics are calibrated thus, videlicet: (a) That the court shall hear both sides not only in the case but also on all material issues in the case before reaching a decision which may be prejudiced to any party in the case. (b)That the court or tribunal gives equal treatment, opportunity and consideration to all concerned. (c) That the proceedings be heard in public and all concerned shall be informed of and have access to such place of hearing. (d) That having regard to all circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done. See Kotoye v. CBN (1989) 1 NWLR (Pt. 98) 419; S & D Const. Co. Ltd. v. Ayoka (2011) 13 NWLR (Pt. 1265) 487; Darma v. Ecobank (Nig. Ltd.) (2017) NWLR (Pt. 1571). Per – OBANDE FESTUS OGBUINYA JCA 

 

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HEARING NOTICE – SERVICE OF HEARING NOTICE VESTS A COURT WITH JURISDICTION

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There is no gainsaying the fact that Nigeria, a legatee of the common law, operates an adversarial system of adjudication in which service of court process on a party to proceeding is a fundamental right. It is service of court process that vests a court with the requisite jurisdiction to entertain a matter. By the same token, service of hearing notice, the means and procedure to compel a party to appear in court, is imperative for adjudication. Per – OBANDE FESTUS OGBUINYA JCA

 

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HEARING NOTICE – MEANING 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 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 enmeshed in and vitiated by nullity, see John Andy Sons & Co. Ltd. V. Mfon (2007) 4 WRN 173; Mbadinuju v. Ezuka (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;Apeh v. PDP (supra); NACB Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Ugo v. Ummuna (2018) 2 NWLR (Pt. 1602) 102; Ezim v. Menakaya (supra); ENL Consortium Ltd. v. S.S. (Nig.) Ltd. (2018) 11 NWLR (Pt. 1630) 315; Achuzia v. Ogbomah (supra); NUT, Taraba State v. Habu (2018) 15 NWLR (Pt. 1642) 381.  Per – OBANDE FESTUS OGBUINYA JCA

 

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HEARING NOTICE – HEARING NOTICE MUST NOTIFY A PARTY OF THE DATE AND PLACE OF PROCEEDING

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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. FB Plc (supra). Thus, insertion of a date for subsequent proceeding is a desideratum and sine qua non for the validity of a hearing notice. Per – OBANDE FESTUS OGBUINYA JCA 

 

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HEARING NOTICE – EFFECT OF ABSENCE OF DATE AND PLACE ON A HEARING NOTICE

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In the absence of a date therein, a party, who is served with a hearing notice, will be groping in the dark as to when to attend/appear in court in obedience to the hearing notice. Such a party will be ignorant or lacking in knowledge about the next date of proceeding of a court. In the premises, the essentiality of a date in a hearing notice cannot be over-emphasised. In effect, the hearing notice served on the appellant, which is bereft of a date, to all intents and purposes, is offensive to the tenet of the law. The lacunae infested/tainted the hearing notice with the indellible mark of invalidity and drained it of any efficacy. Per – OBANDE FESTUS OGBUINYA JCA

 

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HEARING NOTICE – THE COURT HAS A BOURDEN DUTY TO ORDER FOR A SERVICE OF HEARING NOTICE ON ANY PARTY NOT SERVED

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It is an elementary law that a court is hearing laden with a bounden duty to order for the 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 lower court, with due reverence, found it convenient not to order for the issuance of hearing notice to be served on the appellant at the end of each day’s proceeding, especially the penultimate proceeding of 3rd March, 2015, which birthed the decision being sought to be impugned and ostracised. A fortiori as the appellant was never a particeps in the proceeding from cradle of the suit until it berthed in the decision. Alas, the lower court flagrantly fractured this hallowed principle of law which is geared towards ensuring fair hearing to parties in proceeding. Per – OBANDE FESTUS OGBUINYA JCA

 

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FAIR HEARING – THE CONSTITUTIONAL DOCTRINE OF FAIR HEARING

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The constitutional doctrine of fair hearing, which owes its ancestry to divinity, mandates the courts, on all the rungs of the judicial ladder, to always 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. Indubitably, the lower court’s proceeding, which was conducted under the umbrella of special case proceeding application, treated the principles of fair hearing with disdain and contempt. Per – OBANDE FESTUS OGBUINYA JCA

 

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FAIR HEARING – A PROOF OF BREACH OF RIGHT OF FAIR HEARING AMOUNTS TO MISCARRIAGE OF JUSTICE

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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; N.U.T, Taraba State v. Habu (supra); Thomas v. FJSC (2019) 7 NWLR (Pt. 1671) 284. Per – OBANDE FESTUS OGBUINYA JCA

 

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FAIR HEARING – THE EFFECT OF BREACH OF A PARTY’S RIGHT TO FAIR HEARING ON A PROCEEDING

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It is rudimentary law that  where a party’s consecrated 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 mired 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; S.A.P. Ltd. v. Min., Petroleum Resources (2018) 6 NWLR (Pt. 1616) 391; Zenith Plastics Ind. Ltd v. Samotech Ltd. (2018) 8 NWLR (Pt. 1620) 165; Olayioye v. Oyelaran I (supra), La Wari Furniture & Baths Ltd. v. FRN (supra). Per – OBANDE FESTUS OGBUINYA JCA

 

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NULLITY – MEANING OF NULLITY

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In the eyes of the law, 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; Ezenwaji v. U.N.N. (supra); Mamman v. Hajo (2016) 8 NWLR (Pt. 1575) 411. Per – OBANDE FESTUS OGBUINYA JCA

 

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NULLITY – CONSEQUENCE OF A NULLIFIED DECISION/PROCEEDING

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The dire consequence of a nullity is far-reaching.  If a decision or proceeding is plagued by nullity, it is void and taken as 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.  Moreover, such a null decision or proceeding, in the view of the law, bestows no enforceable right on its beneficiary party, who possesses it, nor does it impose any obligations on its victim party, see Ajibola v. Ishola (2006) 13 NWLR (Pt. 998) 628; Oyeneyin v. Akinkugbe (2010) 4 NWLR (Pt. 1184) 265. Per – OBANDE FESTUS OGBUINYA JCA

 

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DUTY OF COURT – THE BOUNDEN DUTY OF COURT TO SET ASIDE A NULL ORDER

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 The bounden duty of a court is to, ex debito justitiae, set aside a null order in that it does not exist in law, see Mamman v. Hajo (supra); N.A.C.B. Ltd. v. Ozoemelam (2016) 9 NWLR (Pt. 1517) 376; Oyeyemi v. Owoeye (2017) 12 NWLR (Pt. 1580) 364. On the strength of the inelastic position of the Iaw, dissected above, the lower court’s decision of 19th May, 2015, was/is marooned in the murky ocean of nullity.  On this score, the law compels me to mow it down with the unbiased judicial sword of this court. In effect, it will smell of a judicial sacrilege to endorse the lower court’s injudicious exercise that was contemptuous of the law. I resist the temptation to honour the respondents’ salivating invitation that has the potential to irritate the law.  In the end, I have no option than to resolve the issue one in favour of the appellant and against the respondents. Per – OBANDE FESTUS OGBUINYA JCA

 

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ORDER OF COURT – THE APPROPRIATE ORDER AN APPELLATE COURT SHOULD MAKE WHERE A PARTY’S RIGHT TO FAIR HEARING HAS BEEN BREACHED

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My noble Lords, for the sake of completeness, the order to make when a person breaches a party’s unassailable right to fair hearing, as engraved in section 36(1) of the Constitution, as amended, is not a moot law. 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) 14 NWLR (Pt. 1586) 522 at 547, per Nweze, JSC; Danladi v. Dangiri (2015) 2 NWLR (Pt. 1442) 124; 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.  Furthermore, 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 or points that may arise at 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. I will pay due allegiance to this legal injunction of the law so as not to prejudice the issues that may germinate during the rehearing sessions. In the premises, the outcome of this issue has aborted in limine the determination of the other trinity issues in the appeal. Per – OBANDE FESTUS OGBUINYA JCA 

 

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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).

 

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