POST MASTER GENERAL & ORS. V. MR. MAC-CAJETAN AGBASI
POST MASTER GENERAL & ORS. V. MR. MAC-CAJETAN AGBASI
POST MASTER GENERAL & ORS. V. MR. MAC-CAJETAN AGBASI
You also want an ePaper? Increase the reach of your titles
YUMPU automatically turns print PDFs into web optimized ePapers that Google loves.
<strong>POST</strong> <strong>MASTER</strong> <strong>GENERAL</strong> & <strong>ORS</strong>. V. <strong>MR</strong>.<br />
<strong>MAC</strong>-<strong>CAJETAN</strong> <strong>AGBASI</strong><br />
CITATION: (2006) LPELR-11926(CA)<br />
In The Court of Appeal<br />
(Port Harcourt Judicial Division)<br />
On Thursday, the 30th day of November, 2006<br />
Suit No: CA/PH/112/2003<br />
Before Their Lordships<br />
VICTOR AIMEPOMO OYELEYE<br />
OMAGE<br />
Justice, Court of Appeal<br />
ISTIFANUS THOMAS Justice, Court of Appeal<br />
IBRAHIM MOHAMMED MUSA<br />
SAULAWA<br />
Justice, Court of Appeal<br />
Between<br />
1. <strong>POST</strong> <strong>MASTER</strong><br />
<strong>GENERAL</strong><br />
2. NIGERIA <strong>POST</strong>AL<br />
SERVICE<br />
3. BOARD OF<br />
MANAGEMENT OF<br />
<strong>POST</strong>AL SERVICE<br />
4. <strong>MR</strong>. UCHE I. OKORO<br />
1<br />
Appellants
And<br />
<strong>MR</strong>. <strong>MAC</strong>-<strong>CAJETAN</strong><br />
<strong>AGBASI</strong> Respondent<br />
RATIO DECIDENDI<br />
1 CONSTITUTIONAL LAW - BREACH OF<br />
RIGHT TO FAIR HEARING: Whether the<br />
court will lack necessary competence or<br />
jurisdiction to proceed further to determine<br />
other issues of merit where there is a breach<br />
of fair hearing<br />
"Hence, it's a well established principle that<br />
where a plea of breach of fair hearing (as in<br />
the instant case) has been raised and<br />
successfully established and up held, the court<br />
lacks the necessary competence or jurisdiction<br />
to proceed further to determine other issues<br />
of merit in the, case. see ARAKA vs EJE AGWU<br />
(2000) 15 NWLR (part 692) 684 at 718 per<br />
AYOOLA JSC; OKEREKE vs NWANKWO (2003)<br />
9 NWLR (part 826) 592 SC; EWO VS ANL<br />
(2004) 3 NWLR (part.861d) 610; SC<br />
respectively." Per SAULAWA, J.C.A (Pp<br />
22-23,Paras F-A) - read in context<br />
2 APPEAL - ISSUE FOR DETERMINATION:<br />
Whether a single issue can dispose an appeal<br />
completely; and its effect<br />
2
"It is well settled law that, once a single issue<br />
can dispose of the appeal completely, it is not<br />
necessary to consider the remaining issues<br />
formulated and argued by the parties. See<br />
OKEREKE V. NWANKO (2003) 9 NWLR (Pt.<br />
1326) 592 SC; EWO v ANI (2004) 3 NWLR<br />
(Pt. 861) 610, SC." Per THOMAS, J.C.A (P<br />
7,Paras F-G) - read in context<br />
3 PRACTICE AND PROCEDURE -<br />
NON-COMPLIANCE WITH RULES: Effect of<br />
non-compliance or defect in the competence<br />
or jurisdiction of the court<br />
"It is trite that where a non compliance or<br />
defect goes to the competence or jurisdiction<br />
of the court, any subsequent proceeding<br />
would be a nullity no matter how well the case<br />
was decided. See KIDA S OGUNMOLA (supra)<br />
at (396) paragraphs D - E per KATSINA - ALU<br />
JSC thus: "It is now trite law that failure to<br />
serve process where service of process is<br />
required is a fundamental vice. This means<br />
that the trial court is deprived of the<br />
necessary competence and jurisdiction to hear<br />
the action." Per SAULAWA, J.C.A. (Pp<br />
21-22,Paras F-A) - read in context<br />
4 ACTION - PROPER PARTIES: Whether the<br />
absence of proper parties in court will render<br />
the jurisdiction of the court void<br />
3
"It is settled law that where proper parties are<br />
not before a court the court is without<br />
jurisdiction to adjudicate. See PLATEAU STATE<br />
v. A-G FEDERATION (2006) 1 SC (pt.1) 64;<br />
AMODU v. AJOBO (1997) 7 NWLR (pt.406)<br />
170." Per THOMAS, J.C.A (P 11,Paras F-G) -<br />
read in context<br />
5 CONSTITUTIONAL LAW - RIGHT TO FAIR<br />
HEARING: Whether a judgment is bound to<br />
be set aside if the superior court is of the<br />
opinion that the party entitled to be heard<br />
was not given an opportunity to be heard<br />
"It is trite that the rule of fair hearing as<br />
cherishingly enshrined under section 36 of the<br />
constitution of the Federal Republic of Nigeria<br />
1999, is not a technical principle. It is rather<br />
one of substance. As authoritatively and most<br />
cherishingly held by the supreme court: "once<br />
an appellate court comes to the conclusion<br />
that the party was entitled to be heard before<br />
a decision was reached but was not given the<br />
opportunity of hearing the ...Judgment thus<br />
entered is bound to be set aside ". see<br />
BAMAIYI vs THE STATE (2001) FWLR Part 46<br />
page 956 at 974 paragraphs D - E per Uwaifo<br />
JSC; KOTOYE VS CBN (1989) NWLR (part 98)<br />
419; ATANO v. AG. BENDEL (1988) 2 NWLR<br />
(Pt. 75) 201; NTUK DEM vs OKO (1986)<br />
NWLR (part 45) 909." Per SAULAWA, J.C.A. (P<br />
22,Paras B-E) - read in context<br />
4
6 PRACTICE AND PROCEDURE - SERVICE<br />
OF COURT PROCESS: Effect of failure to<br />
serve a court process where such a service is<br />
required<br />
"It is undoubtedly trite, that failure to serve<br />
court process where such a process is required<br />
is a fundamental defect. Thus, absence or lack<br />
of proof of service of court process on a party<br />
deprives a trial or even appellate court the<br />
necessary competence of jurisdiction to<br />
determine the case before it. See AUTO<br />
IMPORT V. ADETAYO (2002) 18 NWLR<br />
(PT.799) 544; SGBN V. ADEWUNMI (2003) 10<br />
NWLR (PT.829) 526; MBADINUJU V. EZUKA<br />
(1975) (1994) 8 NWLR (PT.364) 535; SCOTT<br />
EM-AKPOR V. UKAUBE (1975) 12 SC 41; UBN<br />
PLC V. OKONKWO 92004) 5 NWLR (PT.867)<br />
445; KDA V. OGUNMOLA (2006) 13 NWLR<br />
PT.997 PAGE 377 AT 395, paragraphs H-C,<br />
respectively." Per SAULAWA, J.C.A (Pp<br />
16-17,Paras G-C) - read in context<br />
ISTIFANUS THOMAS, J.C.A (Delivered the<br />
Leading Judgment): This is an appeal against the<br />
judgment of the Federal High Court, Port Harcourt<br />
in suit No. FHC/PH/126/95 delivered on 30th<br />
November 1999. The lower court's decision was<br />
against the appellants in which the<br />
5
plaintiff/Respondent had claimed severally and<br />
jointly against the defendants/appellants, special<br />
damages and loss of profit as a result of the failure<br />
to deliver an overseas postal parcel under contract<br />
Exhibit 1. Dissatisfied with the decision, appellants<br />
appealed to this court and they were granted leave<br />
to raise and argue points not raised and argued in<br />
the lower court. The appellants were also granted<br />
by this Court to amend their notice of appeal and to<br />
file and argue one additional ground of appeal.<br />
From the amended and additional grounds of<br />
appeal totaling 9 grounds of appeal the appellants<br />
have their brief from which they distilled and<br />
formulated six (6) issues that read as follows:<br />
"1. Whether the failure of the learned trial Judge to<br />
consider and pronounce upon Exhibit 1 containing<br />
the terms and conditions of the contract occasioned<br />
a miscarriage of justice.<br />
2. Whether the learned trial Judge properly<br />
evaluated the evidence, before him and was right<br />
in the conclusion reached thereby.<br />
3. Whether the learned trial Judge rightly placed<br />
the onus on the defendants to prove that they<br />
delivered the parcel to the addressee.<br />
4. Whether the judgment of the trial court which is<br />
based on the provisions of the Nigerian Postal<br />
Service Department Act Cap 322, which was no<br />
longer in force at the time of commencement of the<br />
action and judgment is valid.<br />
5. whether the learned trial Judge was right when<br />
he failed to apply well known principles of law to<br />
the proved and accepted facts.<br />
6
6. Whether in the circumstances of this case, the<br />
trial which was conducted in the absence of the<br />
defendants when there was no proof of service of<br />
hearing notice as ordered was proper and can be<br />
allowed to stand."<br />
The respondent on time, filed his respondent's brief<br />
of argument and has formulated six issues for<br />
determination. They read thus:<br />
"(i) whether the learned trial Judge failed to<br />
consider Exhibit I?<br />
(ii) whether the learned trial Judge properly<br />
evaluated the evidence before him and was right in<br />
the conclusion reached thereby?<br />
(iii) whether the learned trial Judge rightly placed<br />
the onus on the defendants to prove that they<br />
delivered the parcel to the addressee?<br />
(iv) Whether, assuming without conceding, that the<br />
judgment is invalid merely because it was based on<br />
the provisions of a wrong law?<br />
(v) Whether the learned trial Judge failed to apply<br />
well known principles of law to the proved and<br />
accepted facts.<br />
(vi) Whether the suit was conduced in the absence<br />
of the appellants without their not served with<br />
Hearing Notice before the hearing of the suit?"<br />
It is well settled law that, once a single issue can<br />
dispose of the appeal completely, it is not<br />
necessary to consider the remaining issues<br />
formulated and argued by the parties. See<br />
OKEREKE V. NWANKO (2003) 9 NWLR (Pt. 1326)<br />
592 SC; EWO v ANI (2004) 3 NWLR (Pt. 861) 610,<br />
SC.<br />
7
I have carefully considered the totality of six<br />
issues raised by both parties, and I am satisfied<br />
that appellants' issue No. 6 is in pari material with<br />
the respondent's issue No 6. Both issue 6 have<br />
argued as to whether hearing notice was served on<br />
the appellant before hearing of the suit. I am of<br />
the considered opinion that once issue six is<br />
properly considered, the appeal can conveniently<br />
dispose the appeal and this is what I will do.<br />
Appellants' argument in their issue 10 is stated at<br />
page 11 of the brief. Their arguments in paragraphs<br />
4.66, 4.77, 4.72, 4.73 and 4.74 are relevant.<br />
Appellants' argument are that the issue is<br />
questioning the propriety' of a trial conducted in<br />
the absence of the other party and in the instant<br />
appeal, the absence of the appellant who were not<br />
served with hearing notice as ordered by the<br />
learned trial Judge. I have carefully perused page<br />
38 of the record of appeal. It reads as follows:<br />
"... ... ...<br />
Case called<br />
Plaintiff present<br />
Defendant absent<br />
C. J. Okoli-Akrika Esq. appears for the plaintiff.<br />
Defendant not presented by counsel<br />
Mr. Okoli: Pleadings have been filed and exchanged<br />
in this matter but surprisingly the defendants<br />
stopped coming to Court.<br />
Court: This matter is adjourned to 29-4-99 for<br />
mention. Fresh hearing notice to be served on the<br />
defendants.<br />
Signed<br />
8
P. J. Olayiwola<br />
Judge<br />
13-4-99<br />
From the above quotations, it is clear that on the<br />
13-4-99 when the suit came up before the trial<br />
Judge, the appellants were absent including their<br />
counsel: and therefore the learned trial Judge<br />
adjourned the case to 29-04-99 and clearly ordered<br />
a fresh hearing notice to be served on the<br />
appellants. Since then, there were several<br />
adjournments and the Appellants were absent on<br />
all the occasions and on 22-7-99 the same court<br />
granted the respondent leave to prove his case.<br />
Learned counsel for the respondent had also<br />
informed the court that on different occasions, the<br />
court had ordered fresh hearing notice on the<br />
appellants, but alleged that the appellants had<br />
failed to turn up.<br />
I have carefully perused and considered the<br />
proceedings of the trial court on pages 39 - 41 and<br />
page 45. These pages have shown that on 29-4-99,<br />
the trial Judge simply said "This matter is<br />
adjourned to 15th and 16th June 1999 for definite<br />
hearing." This shows that there was no "fresh<br />
hearing notice to be served on the appellants" as<br />
claimed by learned counsel for respondent. On<br />
15-6-99, the same trial judge merely said - "This<br />
matter is fixed for today and tomorrow, matter is<br />
therefore adjourned till tomorrow for definite<br />
hearing." It is therefore failure to serve hearing<br />
notice of service on the appellants. Still on<br />
16-6-99, the same Judge said as follows:<br />
9
('This matter is adjourned to 5th July 1999 for<br />
definite hearing."<br />
This is a further proof that the learned trial Judge<br />
did not specifically made an order of service of<br />
hearing notice on the appellants.<br />
When the respondent's counsel was in court on<br />
5-7-99, he asked for a short adjournment to serve<br />
a motion on notice. Still the trial court granted the<br />
application for hearing of the motion papers and<br />
adjourned it to 22-7-99 without specific order to<br />
issue fresh hearing notice on the appellants except<br />
the proceedings made on 13-4-99. But not only<br />
that a fresh hearing notice is to be served. There<br />
must be a conclusive proof that the court's bailiff<br />
had served the party(ies) in question. The proof of<br />
service is the return hearing notice in which the<br />
recipient of the hearing notice is to state the name,<br />
rank, date, time and signature on the back of the<br />
hearing notice. Where the counter hearing notice is<br />
refused to be served, the court's bailiff has the duty<br />
to swear to an affidavit that the party had refused<br />
to accept hearing notice. All reasonable courts of<br />
record are enjoined to rely on proofs of services of<br />
hearing notice on parties before hearing of the<br />
proceeding.<br />
In the instant appeal despite so numerous<br />
adjournments for hearing, the learned trial Judge<br />
woefully failed to make fresh hearing notices on the<br />
appellants; and where such order was made, the<br />
lower court did not deem it necessary to demand<br />
and see or look at the requisite proof of service on<br />
the appellants. The assertion by learned counsel for<br />
10
the respondent that there were proofs of service or<br />
proofs of hearing notice on the appellants in the<br />
court's file is of no consequence.<br />
There is no evidence in the record of appeal that<br />
hearing notices were served on the appellants.<br />
More over, learned counsel's argument, no matter<br />
how brilliant is not proof of evidence.<br />
From the above findings, I am satisfied that the<br />
purported hearing of the respondent on which he<br />
testified and established his claim as shown on<br />
page 48 - 50 of the record is a nullity because the<br />
defendants/appellants were not served hearing<br />
notice. It is therefore clear that the trial Judge<br />
heard evidence and gave judgment in<br />
contravention of statutory requirement to serve<br />
hearing notice before proceedings.<br />
The appellants were denied right of lair hearing as<br />
constitutionally enshrined under Section 36 of the<br />
1999 Constitution and an abuse of the honoured<br />
principle of audi alteram partem rule.<br />
Consequently, parties' issue 6 is resolved in favour<br />
of the appellants. Issue six is enough in allowing<br />
the appeal. Issues 1 - 5 are discountenances, they<br />
are regarded as hypothetical issues.<br />
It is settled law that where proper parties are not<br />
before a court the court is without jurisdiction to<br />
adjudicate. See PLATEAU STATE v. A-G<br />
FEDERATION (2006) 1 SC (pt.1) 64; AMODU v.<br />
AJOBO (1997) 7 NWLR (pt.406) 170.<br />
The appellants are entitled to N10,000.00 costs<br />
against the respondent.<br />
11
OMAGE, J.C.A.: I am privileged to read in advance<br />
the lead judgment of my learned brother, I.<br />
Thomas, JCA. It is evident from the printed record<br />
that the proper parties were not in the court below.<br />
The Court is thereby without jurisdiction to hear<br />
the plaint for it would be unjust to determine the<br />
salient issues in the matter without the proper<br />
parties and deny the parties any hearing, when the<br />
parties were not served. The appeal is struck out.<br />
I abide by the consequential order for costs.<br />
SAULAWA, J.C.A.: I have had the privilege of<br />
reading the draft of the lead judgment of my<br />
learned brother THOMAS, JCA, just delivered by<br />
him. I agree with him that this appeal has merit<br />
and ought to thus be allowed. However, for<br />
purposes of emphasis I have deemed it most<br />
appropriate to make my own contribution.<br />
As it would appear from the records, this is an<br />
appeal against the judgment of the lower court in<br />
suit NO FHC/PH/126/95 dated 30/11/99 Coram<br />
P.F. OLAYWOLA in the said suit the present.<br />
Respondent had claimed against the Appellants<br />
severally and jointly, as follows:<br />
(a) N300,000,00 (Three Hundred Thousand naira)<br />
only as special damages or the actual market value<br />
of the Minolta power supply boards which the<br />
defendants accepted from the Plaintiff for carriage<br />
to America but failed or defaulted to do so as<br />
contracted or return same to the Plaintiff or<br />
12
account for their (sic) where about despite repeated<br />
demands to that effect.<br />
(b) The sum of N125,000.00 (one Hundred and<br />
Twenty, Five thousand naira) only being the cost<br />
profit the plaintiff would have made., if the<br />
defendants had performed as contracted,between<br />
28th November 1994 to 28th April 1995 and<br />
(c) N25,000.00 (Twenty Five Thousand Naira) only<br />
being the monthly profit the Plaintiff normally<br />
makes form May 1995 until judgment is given. See<br />
page 18 paragraph 17 of the Record of the Trial<br />
court. At the conclusion of the trial, the lower court<br />
delivered the judgment thereof on 30/11/99 to the<br />
effect inter alia that: I therefore hold the<br />
defendants jointly and severally liable to the<br />
Plaintiff to this extent.<br />
(i) the sum of N300,000,00 market value of Minolta<br />
supply Board.<br />
(ii) 60% of the profit the Plaintiff would have made<br />
between 28th November 1994 to 28th April 1995,<br />
i.e. 60% of N 12 5,000.00 - N75,000.00.<br />
(iii) 60% of the monthly profit the Plaintiff would<br />
have made between May 1995 and November 30th<br />
1999, i.e. 60% of N 1, 3 5 0,000.00 N810,000. 00,<br />
Total -- N1,185,000.00. There is no order as to<br />
costs.<br />
Not unnaturally, being dissatisfied with the<br />
judgment of the trial court alluded to above, the<br />
four Appellants have filed this appeal initially upon<br />
eight grounds of appeal. see pages 135 - 140 of the<br />
Records. However its also evident from the records<br />
of this court that the Appellants were duly granted<br />
13
leave to amend grounds 1,2,3, 4, 6 and 7 of the<br />
original grounds filed on 28/10/2002 along with the<br />
notice of appeal.<br />
It is instructive that both parties have filed and<br />
exchanged the brief of argument thereof. The<br />
Appellants brief dated t0/0212005 and filed on the<br />
same date hers raised a total of six issues for<br />
determination, to wit:<br />
1. Whether the failure of the learned trial judge to<br />
consider and pronounce upon exhibit I containing<br />
the terms and conditions of the contract occasioned<br />
a miscarriage of justice.<br />
2. Whether the learned trial judge properly<br />
evaluated the evidence before him and was right<br />
in the conclusion reached thereby.<br />
3. Whether the learned trial judge rightly placed<br />
the onus on the defendants to prove that they<br />
delivered the parcel to the addressee,<br />
4. Whether the judgment of the trial court which is<br />
based on the provisions of the Nigerian postal<br />
service Department Act CAP 322, which was no<br />
longer in force at the time of 5 commencement of<br />
the action and judgment is valid.<br />
5. Whether the learned trial judge was right when<br />
he failed to apply well known principles of law to<br />
the proved and accepted facts.<br />
6. Whether in the circumstances of this case, the<br />
trial which was conducted in the absence of the<br />
defendants when there was no proof of service of<br />
hearing notice as ordered was proper and can be<br />
allowed to stand.<br />
On the part thereof the Respondent filed his brief<br />
14
on 22/3/2005 and raised therein six issues, thus:<br />
(i) whether the learned trial judge failed to<br />
consider Exhibit 1?<br />
(ii) whether the learned trial judge properly<br />
evaluated the evidence before him and was right on<br />
the conclusion reached thereby?<br />
(iii) Whether the learned trial judge placed onus on<br />
the Defendant to prove that that delivered the<br />
parcel to the addressee.<br />
(iv) Whether, assuming with out conceding that the<br />
judgment is invalid merely because it was based on<br />
the provisions of a wrong law.<br />
(iv) Whether the learned Trial judge failed to apply<br />
well known principles of law to the proved and<br />
accepted facts?<br />
(iv) Whether the suit was conducted in the absence<br />
of the Appellants with out their not being served<br />
with Hearing Notice before the hearing of the suit?<br />
The Appellants have in turn also filed a reply brief<br />
in response to the Respondents brief alluded to<br />
above, on 18/4/2005 and accordingly urged on the<br />
court that:<br />
"For the above reasons and those stated in the<br />
Appellants brief, this Honourable Court is humbly<br />
urged to allow the appeal and set aside the<br />
judgment and order of the Federal High Court made<br />
against the Appellants."<br />
I have accorded an ample but rather very critical<br />
consideration upon the nature and circumstances"<br />
surrounding this appeal, the records of proceedings<br />
of the lower court, the respective parties briefs of<br />
argument, as well as the numerous but rather<br />
15
illuminative legal authorities referred to therein by<br />
the learned counsel.<br />
In view of the crucial point raised therein, I have<br />
deemed it not only expedient but also imperative to<br />
first and foremost, deal with the issue No 6 raised<br />
by both the Appellants' and Respondent's counsel in<br />
the respective briefs thereof. As alluded to above,<br />
the said issue raised by the Appellants in their brief<br />
of argument which was adopted by the Respondent<br />
is to the effect that:<br />
"6- Whether in the circumstances of this case, the<br />
trial which was conducted in the absence of the<br />
defendants when the there was no proof of service<br />
of hearing notice as ordered was proper and can be<br />
allowed to stand."<br />
It's also instructive that issue No6 inquestion is<br />
distilled from ground No 8 of the amended grounds<br />
of appeal. According to the appellants:<br />
4.65. ISSUE 6<br />
4.66. This issue relates to ground eight of the<br />
amended grounds of appeal. The issue questions<br />
the propriety of a trial conducted in the absence of<br />
the appellants when they were not served with<br />
hearing notice as ordered by the learned trial<br />
judge.<br />
As alluded to above, I have deemed it expedient to<br />
deal with issue No 6 first, because service of<br />
process, especially hearing notice on a party is<br />
crucial and fundamental and thus intrinsic to the<br />
jurisdiction of any court, be in the trial or appellate<br />
court. It is undoubtedly trite, that failure to serve<br />
court process where such a process is required is a<br />
16
fundamental defect. Thus, absence or lack of proof<br />
of service of court process on a party deprives a<br />
trial or even appellate court the necessary<br />
competence of jurisdiction to determine the case<br />
before it. See AUTO IMPORT V. ADETAYO (2002)<br />
18 NWLR (PT.799) 544; SGBN V. ADEWUNMI<br />
(2003) 10 NWLR (PT.829) 526; MBADINUJU V.<br />
EZUKA (1975) (1994) 8 NWLR (PT.364) 535;<br />
SCOTT EM-AKPOR V. UKAUBE (1975) 12 SC 41;<br />
UBN PLC V. OKONKWO 92004) 5 NWLR (PT.867)<br />
445; KDA V. OGUNMOLA (2006) 13 NWLR PT.997<br />
PAGE 377 AT 395, paragraphs H-C, respectively.It<br />
was the contention of the Appellants (paragraphs<br />
4.67 - 4.78 of the Appellants brief) that the case<br />
first came up on 22/11/95 before E.O. Sanyaolu J<br />
but was struck out for want of prosecution. On<br />
27/7/98, the matter came up again before O. Aina,<br />
J, who took evidence of the Respondent and<br />
adjourned the case to 22nd and 23/9/98 (see page<br />
31-34 of the Record) The court did not sit on those<br />
dates. Later the case came up on 27/10/98 before<br />
A. Mustapha, J who adjourned it to 18/11/98 in the<br />
absence of the Appellants and their counsel. The<br />
court evidently did not sit on that date. The case<br />
then later came up on 07/7/98 . The Appellants<br />
and their counsel were again absent.The case was<br />
adjourned to 19/02/99. The court didnot sit on<br />
that date. The case later came up on10/03/99<br />
in the absence of the appellants and theTrial judge<br />
A. Mustapha.J, ordered at page 37 ofthe Records<br />
thus:<br />
"Court: case is adjourned to 13th April 1999 for<br />
17
Trial before court 2."<br />
On that date the case came up before P.F.<br />
Olayiwola, J, in the absence of the appellants. The<br />
new Trial judge adjourned the matter to 29/4/99<br />
and ordered that fresh hearing notice be served on<br />
the appellants. Then after several adjournments<br />
the trial judge P.F. Olayiwola, J. ordered on<br />
27/7/99 thus:<br />
Court: Having listened to Mr. Okoli-Akirika counsel<br />
in support of this motion I am of the opinion that<br />
the plaintiff should be granted leave to prove his<br />
case before this honourable court. The Plaintiff is<br />
therefore hereby granted leave to lead evidence<br />
and prove his claim before this honourable court.<br />
This case is therefore adjourned to 24th September<br />
1999 for hearing.<br />
On that day, the Trial court proceeded to hear the<br />
evidence of the respondence in the absence of the<br />
Appellants and their counsel. There is nothing on<br />
the face of the Trial court's record at pages 48-50<br />
to show that the Appellants were served with the<br />
hearing notice against the 24/9/99. from that date,<br />
the case was adjourned to 08/10/99 fro<br />
respondents counsel address and thereafter to<br />
30/11/99 for judgment.<br />
It was submitted by the Appellants' counsel that<br />
proceeding to taking evidence and delivering<br />
judgment by the trial judge in the absence of the<br />
appellants with out satisfying himself that they<br />
were duly served with hearing notice as ordered on<br />
13/04/99, is a clear violation of their right to fair<br />
hearing.<br />
18
That fortiori the judgment delivered by the learned<br />
trial judge on 30/11/91) is a miscarriage of justice<br />
and thus a nullity. Relying on the cases of ANUWAH<br />
TRANS (NIG) LTD v. OA TRANS (NIG.) LTD. (1998)<br />
1 NWLR (part 555)619 at 690; ODUTOLA VS.<br />
KAYODE (1994) 2 NWLR (part 324) 1 at 22 et althe<br />
learned counsel urged this court to allow the<br />
appeal and set aside the.iudl3ment of the court<br />
below.On the other hand, the Respondent has in<br />
the briefthereof made copious references to the<br />
variousdates on which the matter came up before<br />
the trialcourt for trial. Most particular, paragraph<br />
3.44 is tothe effect that:<br />
3.44. On the said 29th April 1999, the court<br />
adjourned the suit in the presence of the 4th<br />
Defendant/Appellant, to the 15th and 16th days of<br />
June 1999 for definite hearing. See page 39 of the<br />
Record of Appeal. The Appellants deliberately<br />
omitted (sic) to state this fact in their Brief of<br />
Argument in order to hood-wink your Lordships.<br />
It is also the contention of the Respondent's<br />
learned counsel that:<br />
3.50. From the above stated facts it is clear that<br />
the Defendants/Appellants deliberately abandoned<br />
their defence and kept away from the proceedings<br />
only to bring this frivolous Appeal in order to<br />
frustrate the execution of the judgment.<br />
He thus contended that the judgment of the trial<br />
court appealed against is not a nullity merely<br />
because the Defendants chose to keep away from<br />
the proceedings; they did so at their own peril.<br />
19
See KADUNA TEXTILE MILLS LTD VS ALHAJI UMAR<br />
(1994) INWLR (part 317) 143 at 159 to the effect<br />
inter alia that a recalcitrant party who fails to<br />
attend court can not be allowed to hold the court at<br />
ransom as he can not benefit from his own default.<br />
See also EKRENII VS EFEIZOMIOR II (1993) 7<br />
NWLR (part 307) 588.It is evident from the Records<br />
of the Trial court that(pages 38 and 39 of the<br />
Record) that even thoughthe 4th Defendant was<br />
indicated to have beenpresent in court on<br />
29/4/99 there was nothing toshow that the<br />
necessary service of the hearing notices were<br />
effected on the 1st, 2nd and 3rd Appellants<br />
vide their counsel who was absent on that date.<br />
What is more, on 15/6/99, the record of the trial<br />
court clearly' shows only the Respondent and his<br />
counsel C.J. Okoli - Akirika Esq. were present. The<br />
four Appellants and their counsel were absent. The<br />
Trial judge ordered thus:<br />
"Court: This matter fixed for today and tomorrow<br />
matter is therefore adjourned till tomorrow for<br />
definite hearing."Again, most unfortunately, there is<br />
nothing in the record at page 41 to indicate that<br />
the learned Trial judge had ordered for the service<br />
of a fresh hearing on the Appellants vide their<br />
counsel<br />
in short no.Most intriguingly, on 30/16/99 the<br />
Respondent filed a motion for leave to lead<br />
evidence and prove his claims against the<br />
Appellants in<br />
the lower court.The said motion was heard and<br />
granted on 27/7/99in the absence of the Appellants<br />
and their counsel.<br />
20
There was as usual no proof that they were duly<br />
served with the motion papers and notice of<br />
hearing thereof. Thus, there is no doubt that the<br />
hearing and granting of the said motion by the trial<br />
judge with out proof of service of the motion papers<br />
and the hearing notice on the appellants had<br />
occasioned a miscarriage of justice to the<br />
appellants.<br />
Hence, the subsequent taking of the evidence of<br />
the Respondent on 24/9/99, the Respondent<br />
counsel's address on 08/10/99, and the resultant<br />
judgment delivered by the learned trial judge there<br />
upon on 30/11/99 in the absence of any valid proof<br />
of service of hearing notice on the Appellant; and<br />
their counsel are incompetent and thus a nullity.<br />
This is so, because as alluded to above, service of<br />
court process, especially hearing notice is a sine<br />
qua non to any effective adjudication process; the<br />
lack or absence of which deprives the court with<br />
the necessary jurisdiction or competence over a<br />
party who has not been served unless he<br />
voluntarily submits himself to the courts<br />
jurisdiction.<br />
It is trite that where a non compliance or defect<br />
goes to the competence or jurisdiction of the court,<br />
any subsequent proceeding would be a nullity no<br />
matter how well the case was decided. See KIDA S<br />
OGUNMOLA (supra) at (396) paragraphs D - E per<br />
KATSINA - ALU JSC thus:<br />
"It is now trite law that failure to serve process<br />
where service of process is required is a<br />
fundamental vice. This means that the trial court is<br />
21
deprived of the necessary competence and<br />
jurisdiction to hear the action"<br />
In the absence of any valid proof of service of<br />
hearing notice on the Appellants, this court hits no<br />
option other than to hold that the judgment<br />
delivered by the lower court on 29/11/99 has<br />
occasioned a miscarriage of justice to the<br />
Appellants. It is trite that the rule of fair hearing as<br />
cherishingly enshrined under section 36 of the<br />
constitution of the Federal Republic of Nigeria<br />
1999, is not a technical principle. It is rather one of<br />
substance. As authoritatively and most cherishingly<br />
held by the supreme court:<br />
"once an appellate court comes to the conclusion<br />
that the party was entitled to be heard before a<br />
decision was reached but was not given the<br />
opportunity of hearing the ...Judgment thus<br />
entered is bound to be set aside ". see BAMAIYI vs<br />
THE STATE (2001) FWLR Part 46 page 956 at 974<br />
paragraphs D - E per Uwaifo JSC; KOTOYE VS CBN<br />
(1989) NWLR (part 98) 419; ATANO v. AG. BENDEL<br />
(1988) 2 NWLR (Pt. 75) 201; NTUK DEM vs OKO<br />
(1986) NWLR (part 45) 909.<br />
Hence, it's a well established principle that where a<br />
plea of breach of fair hearing (as in the instant<br />
case) has been raised and successfully established<br />
and up held, the court lacks the necessary<br />
competence or jurisdiction to proceed further to<br />
determine other issues of merit in the, case. see<br />
ARAKA vs EJE AGWU (2000) 15 NWLR (part 692)<br />
684 at 718 per AYOOLA JSC; OKEREKE vs<br />
22
NWANKWO (2003) 9 NWLR (part 826) 592 SC;<br />
EWO VS ANL (2004) 3 NWLR (part.861d) 610; SC<br />
respectively.<br />
On the whole as stated above, I entirely concur<br />
with the lead judgment that this appeal has merit<br />
and it is accordingly hereby allowed by me. I also<br />
abide by the costs of N10,000.00 awarded in favour<br />
of the Appellants against the Respondent.<br />
Appearances<br />
S.M. Tenku Esq. with him S.O.<br />
Sango-Tayo Esq, and Mrs M.A.<br />
Abdullahi<br />
Martins Elendu Esq.<br />
23<br />
For Appellants<br />
For<br />
Respondent