CORAM
PARTIES
VICTORIA SHOLA
1.EZEDIASHI OFILI 2.OSAKPAMWAN IGBINEWEKA 3.OSAZEE KINGSLEY IGBINEWEKA
AREA(S) OF LAW
SUMMARY OF FACTS
By a Writ of Summon filed at the High Court of Edo State, the 1st Respondent as Claimant claimed against the Appellant as 3rd Defendant and other Defendants the following reliefs, namely; a declaration that the Plaintiff is the rightful owner of ALL THAT piece or parcel of land measuring 200 feet by 100 feet and covering as Area of approximately 2173.99 square yard, lying and situate at Ekosodin, Benin City, more particularly marked and delineated in Survey Plan No. OSA/77BD6362 attached to the Certificate of Occupancy No. BDSR606 dated 7/2/81″ Registry in the’ office at Benin City, granted to the Plaintiff by the then Executive Governor of Edo State Prof. A. AlIi; the sum of N500,000 being general damages for Trespass without the authority and/or authority of the Plaintiff on the disputed land and an order of perpetual injunction restraining the Defendants, their heirs, assigns, privies, servants and- or agents from further or any other form of trespass or interfering or meddling with the Plaintiff’s proprietary right over the land. The 3rd Defendant/Appellant filed a counterclaim against the 1st Respondent seeking an order of court setting aside the Certificate of Occupancy No. BDSR 606 dated 7/2/1981 issued in favor of Mr. Ezediashi Offili, the Plaintiff. At the commencement of the case before the Court below, it was the 1st Respondent and the other Defendants that filed and exchanged their pleadings and the matter proceeded to trial until after all the witnesses for the 1st Respondent had testified before the Appellant was granted leave to file her defense to the claims of the 1st Respondent, but was however refused leave to recall the witnesses of the 1st Respondent for the purposes of their cross examination. These witnesses had earlier testified before the Appellant obtained the leave of the Court below to file her pleadings. However, at the close of the case of the 1st Respondent as Claimant, the Appellant gave evidence in support of her pleadings. At the trial before the Court below, several documents were tendered by the parties, which were admitted in evidence. At the close of the trial, the court delivered its judgment, in which it granted the claims of the 1st Respondent against the Appellant, while dismissing her counter claim, hence this appeal.
HELD
Appeal Allowed
ISSUES
Whether the failure by the Honourable Court to issue and serve hearing notices on the Appellant on the diverse dates the suit came up for hearing before the Plaintiff/1st Respondent closed his case on 27/6/2008 and the refusal of the Motion filed by the Appellant dated the 6th day of November 2008 for the recall of the Plaintiff /1st Respondent and some of his witnesses for cross-examination did not breach the 2nd Appellant’s fundamental right to fair hearing?”
RATIONES DECIDENDI
RIGHT TO FAIR HEARING – MANNER OF OBSERVANCE OF THE RIGHT TO FAIR HEARING
“Now, the observance of the right to fair hearing of the citizen in the determination of their civil rights and obligations by every Court in the land is a fundamental prerequisite to valid adjudication to ensure that decisions are not reached without a hearing of the citizen. However, an allegation of denial of the right to fair hearing, as grave as it could be and the dire consequences it could have on the proceedings and judgment of a Court if proved, does not operate in a vacuum but is dependent on the facts and circumstances of each given case. In other words, whether the right to fair hearing was breached or not is a question of facts to be determined on the facts and circumstances placed before the appellate Court. Thus, it is the law that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case since it is primarily a matter of fact. Therefore, it is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constitute a breach of the party’s right to fair hearing. See Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). See also News watch Communications Limited V. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt. 993) 144”.
DENIAL OF FAIR HEARING – IMPLICATION OF A DENIAL OF FAIR HEARING
“My lords, there can be no doubt that fair hearing, which in most cases is synonymous with fair trial and natural justice, is an issue which is clearly at the heart and threshold of our legal system and thus once it is shown that there has been a denial of fair hearing as guaranteed by the Constitution, the whole proceedings automatically becomes vitiated. A denial of fair hearing can ensure from either the conduct of the proceedings and or the decisions of the Court in the hearing of a case”.
FAIR HEARING – TRUE TEST OF FAIR HEARING
“I thought I should observe at once, here and now, that the true test of fair hearing is indeed the impression of a reasonable person who was present at or through the trial whether from his observation justice has not only been done but is seen to have been done in the case. Indeed, justice must not only be done in the thinking of the Court but must also be seen to have been done in the thinking and or estimation of any reasonable person seised of the proceedings of the Court. See Otapo v Sunmonu (1987) 2 NWLR (Pt.58) 587. See also Wilson v. AG of Bendel State (1985) 1 NWLR (pt.4) 572; A. U. Amadi v. Thomas Aplin & Co Ltd (1972) ALL NLR 413; Mohammed Oladapo Ojengbede v. M. O. Esan & Anor (2001) 18 NWLR (Pt.746) 771”.
SERVICE OF HEARING NOTICE – PRINCIPLES OF LAW ON THE SERVICE OF HEARING NOTICE
“My lords, a calm reading of the plethora of decided authorities on the prime place of the issue and service of hearing notice process in the litigation processes in our Courts, in line with the requirements of the sacrosanct provisions of the Constitution of Nigeria 1999 (as amended) readily reveals the following well settled position of the law, namely:
1.Where a Party is entitled to ‘Hearing Notice’ of proceedings and where there is failure to serve him, the failure goes to the root of the competence or jurisdiction of the Court to deal with the matter since in law service of process on a Defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or his counsel must be one of those fundamental conditions precedent required before the Court can have competence and jurisdiction.
2.‘Hearing Notice’ being the only legal means and procedure to get a party to appear in Court, it must be properly served and thus improper or invalid service or no service of hearing notice at all renders such proceedings a nullity.
3.Where the failure of a party in a case to appear in Court is due to the failure to serve him a ‘Hearing Notice’, any judgment given in that circumstance will be one given without jurisdiction and being a nullity is liable to be set aside on appeal.
4.That by whatever other informal means a party was aware of the hearing dates of a case cannot and does not constitute a substitute for the necessity to serve him with a ‘Hearing Notice.’
5.The issue of service of a ‘Hearing Notice’ on a party intimating him of the hearing date is very fundamental to the due administration of justice and its importance cannot be over emphasized as it is that service of the Hearing Notice that confers on the Court the jurisdiction to entertain the matter.
6.Thus, whenever a matter comes up before a Court of law for hearing, it is the duty of the Court to truly and fully satisfy itself that a party to the case was duly served and is aware that the matter is coming up before the Court that day. More importantly, therefore, it is not for the Court, trial or appellate, to assume that the party having been duly served with the Court processes in the matter should be aware of the hearing date.
See Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria; Leedo Presidential Motel V. BON Ltd (1998) 10 NWLR (Pt. 570) 353; Auto Import Export V. Adebayo (2002) 18 NWLR (Pt. 799) 554; Onwuka V. Owolewa (2001) 7 NWLR (Pt. 713) 695; P. N. Emerah & Sons Nig. Ltd V. Dunu (1998) 9 NWLR (Pt. 564) 86; Scott-Emuokpor V. Ukavbe (1975) 2 SC 41; Agena V. Katseen (1998) 3 NWLR (Pt. 543) 560; Okoroafor & Ors V. Chukwunyere Ezuka & Ors (1994) 8 NWLR (Pt. 364) 535; Sken Consult (Nig) Ltd V. Ukey (1981) 1 SC 6”.
RIGHT OF CROSS EXAMINATION – WHETHER A DENIAL OF A PARTY’S RIGHT TO CROSS EXAMINE A WITNESS IS TANTAMOUNT TO A DENIAL OF THE RIGHT TO FAIR HEARING
“I must say that there is the utmost need for Courts to be fair and render equal treatment to the parties before it, more particularly in the observance of their right to fair and fully participate in the proceeding where no fault is attributable to them, including the right to cross examine witnesses for the other party, which is one of the hall mark of the adversarial system of administration of justice in this Country. Thus, it cannot be over emphasized that in law under the adversarial system of jurisprudence, which we operate in this country, the art of cross-examination is perhaps one of the greatest weapon to attack an adversary. It is thus very fundamental as it is the pivot, and indeed the central hub and gravity of the administration of both criminal and civil justice in Nigeria system. This is so because it reinforces in very clear terms the application of the rule of natural justice of audi alteram partem, hearing the other party. Therefore, to without any just or legal or reasonable cause or reason, deny a party the right to cross examine his adversary and his witnesses would and indeed clearly amounts to denial of fair-hearing as enshrined in Section 36(1) of the 1999 Constitution of Nigeria. See Onwuka V. Owolewa (2001) 7 NWLR (Pt. 713) 695. See also Okogi V. Okoh (2010) 9 NWLR (Pt. 1199)311”.
RIGHT TO FAIR HEARING – WHETHER A COURT CAN DENY A PARTY HIS RIGHT TO FAIR HEARING ON ACCOUNT OF HIS CONDUCT
“Now, whether or not a party before the Court is an irritant or recalcitrant or even out – rightly annoying in his conducts, he is still entitled to the safe guards of the law put in place to ensure fair hearing to the citizen, such as service of hearing notice where the circumstance demands the service on him of a hearing notice or even fresh hearing notice, and no Court of law can on account of the conduct of a party deny him or abrogate his right to fair hearing without any lawful justification merely on the basis of his annoying and or recalcitrant or irritating conducts before the Court.
So also no matter how frustrating to expeditious hearing the conduct of a party may be and the amount of delays likely to be occasioned by such a party, yet no Court of law can abrogate or even deny such a party the right to be fairly heard in accordance with the due process of law in line with the Constitutional guarantee to right to fair hearing before a decision affecting his civil rights and obligation is reached by the Court. In law a proved breach of the right to fair hearing carries with it devastating consequences on both the proceedings, no matter how meticulous, and the judgment, no matter how sound, of the Court. It is thus better for Courts to err on the side of caution when it comes to the observance of the right to fair hearing as Constitutionally guaranteed to the parties before the Courts”.
BREACH OF THE RIGHT TO FAIR HEARING – STATUS OF A DECISION OF COURT ARRIVED IN BREACH OF THE RIGHT TO FAIR HEARING
“In law where there is a proved breach of the Constitutionally guaranteed right to fair hearing of the parties, a decision reached thereby is both susceptible and liable to be set aside without much ado by an appellate Court if so called upon. This is so because the principles of fair hearing are not only fundamental to adjudication but also a Constitutional requirement which cannot be legally wished away. It is indeed a fundamental right of universal application. See Agbapounwu V. Agbapounwu (1991) 1 NWLR (Pt. 165) 33 @ p. 40. See also J.O.E. Co. Ltd V. Skye Bank Plc (2009) 6 NWLR (Pt.1138) @ p. 518; Robert C. Okafor & Ors V. AG and Commissioner for Justice Anambra State (1991) 6 NWLR (Pt. 200) 659”.
RULE OF NATURAL JUSTICE – WHETHER A PROCEEDING WHERE THE TWIN PILLARS OF NATURAL JUSTICE WERE BREACHED CAN BE SAID TO HAVE BEEN A FAIR PROCEEDING
“In law, a proceeding in which one of the twin pillars of natural justice, audi alterm patten – let the other party be heard- was brazenly breached by the Court below cannot be said to have been a fair proceedings at all!
SERVICE OF HEARING NOTICE – STATUS OF A JUDGMENT GIVEN IN DEFAULT OF SERVICE OF HEARING NOTICE ON A PARTY
“Thus, in my finding all the proceedings of the Court below on 19/5/2008, 20/6/2008 and 27/6/2008 conducted without the issuance and or service of any hearing notice on the Appellant and the resultant judgment of the Court below delivered on 28/1/20101 all amounted to a nullity being in denial of the Appellant of her right to fair hearing as Constitutionally guaranteed to her. See P. N. Emerah & Sons Nig. Ltd. V. Dunu 1998) 9 NWLR (Pt. 564) 96, where it was held inter alia thus:
“Where the failure of a party in a case to appear in Court is due to the failure to serve him a notice of hearing, any judgment given in that circumstance will be one given without jurisdiction and it is liable to be set aside on appeal…. It is a judgment entered without jurisdiction and it is therefore, a nullity”.
–
RIGHT TO FAIR HEARING – FUNDAMENTAL NATURE OF THE CONSTITUTIONAL GUARANTEED RIGHT TO FAIR HEARING
“My lords, the right to fair hearing is a Constitutional right intended by the framers of the Constitution for the safeguard of the citizen from being condemned or adjudged liable without being heard. It is so fundamental in law that the effect of its breach, as has been so profoundly pronounced upon by the Courts in a plethora of decided cases as are replete in the law reports, would almost invariably render such proceedings and resultant judgment a nullity. See Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt.1323) 276. See also Amadi V. INEC (2013) 4 NWLR (Pt.1345) 595; Ovunwo & Anor. V. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522; Pan African Incorporation &Ors. V. Shoreline Lifeboat Ltd & Anor (2010) All FWLR (Pt. 524) 56; Action Congress of Nigeria V. Sule Lamido & Ors (2012) 8 NWLR (Pt.1303) 560 @ p.593; Judicial Service Commission of Cross River State & Anor V. Dr. (Mrs) Asari Young (2013) 11 NWLR (Pt.1364) 1”.
PRINCIPLE OF FAIR HEARING – WHETHER IT IS APPROPRIATE FOR COURTS OF LAW TO SACRIFICE THE CONSTITUTIONAL PRINCIPLE OF FAIR HEARING ON THE ALTAR OF SPEEDY HEARING OF CASES WHEN THE CONTENT OF THE SPEEDY HEARING IS NOT IN CONSONANCE WITH FAIR HEARING
“Now, while it is true that “justice delayed is justice denied” yet it is also equally true that “justice rushed is justice crushed” and thus it would indeed be a travesty of justice for a Court not to properly and dispassionately hold the balance of justice between the two extremes of rushing or crushing justice. The most important thing is that at all times in proceedings before the Courts the enshrined constitutionally guaranteed rights of the citizen to fair hearing, to be fairly heard, before decision affecting his civil rights and obligations is reached, must be faithfully observed by the Courts. The right to be heard and for substantial justice to be done to the parties by the Courts cannot be sacrificed aty the altar of speed! See Section 36 (1) of the Constitution of Nigeria 1999 (as amended) which provides as follows:
“In the determination of his civil rights and obligation, 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.”
See also Abubakar V. Yar’ Adua (2008) 4 NWLR (Pt. 1078) 468 : p. 503, where the Supreme Court had stated inter alia as follows:
“….Courts of law cannot sacrifice the constitutional principle of fair hearing at the altar of speedy hearing of cases when the content of the speedy hearing is not in consonance with fair hearing….Although the law is that speedy hearing is one vital and important aspect of fair hearing, speedy hearing of a case which denies a party access to pre – trial evidence, such as interrogatories, is not fair as it turns contrary to the Constitutional principle of fair hearing. In the instant case, the Court of Appeal was wrong in rejecting the application to administer interrogatories on the ground that it would impede speedy trial of the case.”
–
RIGHT TO FAIR HEARING – DUTY OF COURTS IN THE OBSERVANCE OF THE RIGHT TO FAIR HEARING
“I reiterate it, even if for the up-teemed time, that the right to fair hearing is not a cosmetic right but a fundamental one and must be scrupulously observed by the Courts. Though, and truly so, justice delayed is justice denied, yet justice rushed is justice crushed and in both extreme circumstances it is the lack of proper balancing by the Court that leads to the injury. Thus, a Court should neither be too slow nor be too fast as being in haste. It must be patient and painstaking while hearing and deciding the rights, obligations and liabilities of the parties before it by scrupulously observing the right to fair hearing of all the parties before it”.
ACADEMIC EXERCISE – ATTITUDE OF COURTS TO ACADEMIC EXERCISE
“Consequently, there is no longer in law any need for this Court to proceed to consider and resolve issues one, two, three and four on their merit, more so when I have decoded to remit the case to the Court below for hearing de novo, since to do so at this stage would in my view amount to a mere academic exercise and a waste of the scarce and very precious judicial time on what is already staring us in our faces as a nullity. See Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853, where the full Court of the Supreme Court had this to say on this issue:
“ It is a principle of law long settled that the general attitude of the Courts of law is that they are loathe in making pronouncements on academic/ hypothetical issues as it does not serve any useful purpose”
See also Oke V. Mimiko (No. 1) (2014) 1 NWLR (Pt. 1388) 225 @ pp. 254 – 255; Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 @ p 1497”.
CASES CITED
Not Available
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria 1999 (as amended)|