“…The fair hearing constitutional provision is designed for both parties in the litigation and the Court as the umpire, so to say, has a legal duty to apply it in the litigation, in the interest of fair play and justice. The Courts must not give a burden to the provision which it cannot carry or shoulder.”
IGUEBEN LOCAL GOVERNMENT & ANOR. vs. JAVY INVESTMENT NIGERIA LTD. & ANOR.(2022)
LCN/16850(CA).
PRINCIPLE:
“The complaint of the Appellant herein is that it was not given fair hearing. In determining the issue, I find it appropriate to resort to the Supreme Court decision in Ejeka vs. State (2003) 7 NWLR Part 819 page 408 wherein the Court said thus: “The principle of fair hearing is breached where parties are not given equal opportunity to be heard in the case before the Court. Where the case presented by one party is not adequately considered, the affected party can complain that he was denied fair hearing. Fair hearing is not an abstract term that a party can dangle in the judicial process but one which is real and which must be considered in the light of and circumstances of the case. A party who alleges that he was denied fair hearing must prove specific act or acts of such denial and not a mere agglomeration of conducts which are merely cosmetic and vain.”
In the light of the foregoing, it is imperative to ascertain whether the principle of fair hearing was breached by the lower Court. At this juncture, I find it compelling to examine the record of proceedings of the lower Court contained in the record of appeal transmitted hereto. The record indicates that the Appellant was served with the Writ of Summons and Statement of Claim in the suit on the 31st October, 2018. It was served with hearing notice on the 12th November, 2019. On 22/3/2020, an application for Change of Counsel was filed but the same was struck out on 11/1/2021. Then on the 2nd March, 2020, the 1st defendant filed a Motion for extension of time to file the 1st defendant’s Statement of Defence out of time and for an order deeming the same as properly filed and served. On 11/1/2021, hearing notice was served on the 1st defendant. On 19/2/2021, subpoena issued on 15/2/2021 was served on the 1st defendant. Then on 6/4/2021, the Claimant’s final written address dated 23/3/2021 was served on the 1st Defendant.
However, on 16/3/2021, the Appellant’s Motion on Notice for Change of Counsel was filed and then served.
Then in terms of conducting hearing in the suit, hearing effectively began on the 23rd January, 2020, when the 2nd Claimant was sworn on the Bible to commence his evidence. On that day, both the 1st defendant and its Counsel were absent. On 4/3/2020, the 2nd Claimant continued with his testimony. It was adjourned to 8/4/2020 for continuation of hearing. On 28/9/2020, fresh hearing notice was further ordered to be served on the 1st defendant. On 11/1/2021, the 2nd Claimant continued with his evidence in chief and was cross-examined by P. I. Okon, Esq., Counsel for the 2nd defendant. On the 10th March, 2021, the 2nd defendant commenced his defence and was equally cross-examined on the same day. The parties were given 21 days respectively to file their final written addresses and the case was adjourned to 28/4/2021 for adoption of the written addresses. On 28/4/2021, Counsel for the 1st defendant, E. E. Ighalo, Esq., appeared for the first time at the proceeding and informed the Court that they filed a Motion for Change of Counsel and wanted to move the same. Then on noticing the glaring error on his Motion paper, Counsel applied to withdraw the same. The same was struck out by the Court. Upon the striking out of the Motion, Mr. Okoh reminded the lower Court that the matter was adjourned to that day for final written address and that they were ready to proceed which was permitted by the lower Court.
What is glaringly clear in the record of appeal herein is that on 28/4/2021 when the Claimants’ Counsel informed the lower Court that the matter was for final written address, no application whatsoever was made for an adjournment by the 1st defendant’s Counsel, present thereat who appeared for the first time on that day despite having been served with hearing notices and other processes in the past, to enable him file another Motion for Change of Counsel.
He did not even attempt to make an oral application for change of Counsel let alone the lower Court refusing the same. On the face of the record of appeal before this Court, Learned Counsel for the 1st defendant was indifferent, indolent on the date of adoption of final written addresses of other Counsel before the lower Court, docile and never uttered a word again as depicted therein. He kept mute until the respective Counsel for the Claimants and the 2nd defendant adopted their written addresses and the lower Court adjourned the case to the 6th July, 2021 for judgment. As rightly observed by the Respondents’ Counsel in the Respondents’ Brief of Argument, no attempt was made by the Appellants’ Counsel to file another Motion for Change of Counsel or for filing of the 1st defendant’s Statement of Defence between the time the suit was adjourned for judgment and the time the judgment was indeed delivered. How can it turn round now to accuse the lower Court of breach of its right to fair hearing. As expressed by Edozie, JSC, in Magna Maritime Services Ltd & Anor. Vs. Oteju & Anor. (2005) LPELR-1817 (SC) on circumstance where a party cannot be heard to complain of being denied the right to fair hearing: “Where a party to a suit has been accorded a reasonable opportunity of being heard and in the manner prescribed under the law and for no satisfactory explanation it fails or neglects to attend the sitting of the Court or boycotts same, that party cannot thereafter be heard to complain about lack of fair hearing. In the case of Okoye v. Nigerian Construction & Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 501 at 541, this Court observed, inter alia, as follows: “I must also bear in mind the fact that the duty of Court under Section 33(1) of the Constitution is to give the person whose civil right or obligation is to be determined the opportunity of fair hearing. If he knew that the proceedings were going on and did not apply to be heard or the opportunity was made available to him and he failed to or neglected to take it, he cannot now properly complain of a denial of fair hearing. If he was aware that such a proceeding was going on, he could not properly fold his hands and fail to take steps to avail himself a hearing. It is when he has taken such steps and is rebuffed that he can complain of a denial.”
It is also the law that having been served with all processes for use in the Court and a date for hearing properly communicated to him, a party cannot be heard to complain that he was not granted fair hearing. See Abia State Transport Corporation vs. Quorum Consortium Ltd. (2009) LPELR-33 (SC). See also Ezeigwe vs. Nwawulu (2010) LPELR-1201 (SC) where the Supreme Court also expressed that where a party has been given an opportunity to be heard, then he cannot later complain of lack of fair hearing. Where he was given the opportunity but he failed or neglected or refused to utilize same, he cannot later be heard to complain of lack of fair hearing.
Further, in Inakoju, Ibadan South East & Ors. vs. Adeleke & Ors. (2007)4 NWLR Part 1025 page 423, Ogbuagu, JSC, had the following to say: “Section 36 of the 1999 Constitution, has been thoroughly abused by litigants and especially by many learned counsel who cling or hang on a straw like a drowning man wanting to save his life. This section has been blown out of proportion by many learned counsel who stand, with respect, on quick sand. It is however, also reported in (2005) AN FWLR (Pt. 270) 1995) my two learned brothers, dealt with the issue of fair healing. Therefore, a party or parties given an opportunity to be heard and who is/was aware of proceedings going on in the Court and not taking any steps required by law or the rules of that Court, cannot be heard to complain of denial of fair hearing. No party has the right, it must be stressed, to hold a Court of law to ransom. There are too many decided authorities on this issue including those cited and relied on in the respective briefs of the respondents. I regret to say that the reliance on Section 36 of the 1999 Constitution, has been thoroughly abused by litigants and especially by many learned counsel who cling or hang on a straw like a drowning man wanting to save his life. This section has been blown out of proportion by many learned counsel who stand, with respect, on quick sand. I will however, as many times as possible, where the circumstances call for its reliance, by me, refer to the pronouncement of Achike, JCA, (as he then was) in the case of Kaduna Textile Ltd. v. Umar (1994) 1 NWLR (Pt. 319) 143 at 159 CA said His Lordship (of blessed memory), inter alia, as follows: “The question is, is it fair and just to the other party or parties, as well as the Court that a recalcitrant and defaulting party should hold the Court and the other parties to ransom? Should the business of the Court be dictated by the whims and caprices of any party? I think not. It goes without saying that justice must be even handled, for the law is no respecter of persons.”
It is indeed baffling that even on the face of the record of appeal before this Court and in the light of all that transpired before the lower Court on 28/4/2021, learned Counsel for the Appellants assumed he had moral justification to file this appeal and raise the lone issue herein. What is horridly disturbing in our system is the unreadiness of party on the wrong to admit his blunder and dereliction and then move on. Instead, they tend to indulge in colossal waste of resources to satisfy their egos and shroud their ineptitude. The Appellant had ample opportunity to apply for an adjournment which he failed to do or even file another Motion before the date slated for judgment but he refused to do so. In consequence thereof, this appeal is devoid of merit and should be dismissed with N50,000 cost against the Appellant in favour of the Respondents.” Per ORJI-ABADUA, JCA.