Alhaji Auwalu Darma V. Oceanic Bank International Nigeria Ltd (2004)

LawGlobal-Hub Lead Judgment Report

ALAGOA, J.C.A

This is an appeal against the Judgment of Haliru, J., of the Kano State High Court, which was delivered on the 19th June, 2001, in suit No.K/352/99. In the said judgment the appellant (then defendant) was found liable to the respondent (then plaintiff) in the sum of N1,398,519.81 being outstanding debit balance as at the 19th June, 2001, on the appellant’s current account No.0401414026 maintained with the respondent at its Kano Branch inclusive of accrued interest arising out of banking facility granted the appellant upon his request by way of overdraft.

Briefly, the facts are that the appellant was a current account customer of the respondent and maintained an account No.0401414026 with the respondent’s Kano branch office situated at No.83 Ibrahim Taiwo Road, Kano. By an application dated the 2nd day of January, 1998, the appellant requested for an overdraft facility of N2,000,000.00 (Two million naira) only from the respondent which was considered and approved and the appellant on the 8th January, 1998, withdrew the said sum of N2,000,000.00 through his cheque No.02473060473. The appellant thereafter commenced repayment of the facility, but later abandoned the exercise according to the respondent, which was however denied by the appellant. Several demands were said to have been made by the respondent to get the appellant to regularise his account with the respondent bank to no avail whereupon the respondent engaged the services of the law firm of O. A. Dada and Co. to recover the entire outstanding balance on the appellant’s account, which at the close of business on the 30th April, 1999, stood at N708,875.96.

On the 18th May, 1999, the respondent took out a writ under the undefended list pursuant to Order 23 of the Kano State of Nigeria High Court (Civil Procedure) Rules, 1988, against the appellant claiming the sum of N708,875.96 allegedly being the outstanding balance standing to the appellant’s debit on the appellant’s account No.0401414026 as at the 30th April, 1999, inclusive of the accrued interest purportedly granted the appellant by way of overdraft.

Attached and marked as exhibit B.B1 and referred to in paragraph 3(iii) in the affidavit in support of the writ of summons under the undefended list is a copy of the appellant’s application dated the 2nd January, 1998, for the overdraft facility in the sum of N2,000,000 (Two million naira) only. Also, attached as exhibit B.D2 in paragraph 3(ix) of the said supporting affidavit is a copy of the statement of account of the appellant with the respondent bank. The respondent has deposed in paragraph 4(b) of the supporting affidavit that the appellant “has no iota of defence to this action”.

The appellant in denial of liability to the claim filed a notice of intention to defend the action dated the 19th July, 1999. The notice is supported by a 7 paragraph affidavit of the same date. The notice is also supported by a further affidavit dated the 28th July, 1999. The case proceeded to be heard under the undefended list and on the 29th July, 1999, the appellant through his counsel A. Malami, Esq. admitted liability in the sum of N300,000.00 only whereupon consent judgment in that sum was entered in favour of the respondent by the court with 10% interest from that date to full liquidation of the judgment. Part of the consent judgment was that the outstanding balance of the plaintiff’s (now respondent) claim against the defendant (now appellant) be transferred to the general cause list.

The court then went on to order pleadings, giving the plaintiff 30 days to file its statement of claim and the defendant 5 days to file his statement of defence. The case was then adjourned to the 10th November, 1999, for hearing. This can be seen on page 3 of the printed record. After several adjournments, the court on the 19th June, 2001, proceeded to hear the case. It is perhaps necessary to state that pleadings had earlier been filed and exchanged between the parties. On the hearing date i.e. 19th June, 2001, the defendant (now appellant) was not represented by counsel. One Mr. Dada, appearing as counsel for the plaintiff (now respondent) informed the court that the defendant had been served with a hearing notice and that the case was for hearing. The case then proceeded to be heard with the only witness for the plaintiff giving her evidence as follows:

PW1 Female, Christian, Affirmed, Speak English.

Name: Franka Okolo

Address: 83 Ibrahim Taiwo Road, Kano

Occupation: Credit Officer. I work as Credit Officer of the plaintiff. We give out loans and overdrafts and recover them. I know the defendant in this case who is a current holder No. 0401414026. I could recall 2/1/98, the defendant came to our bank and asked for overdraft facility N2 Million and the application was granted on 8/1/98, he withdrew the whole amount. Thereafter, he repaid some part of the money, but stopped paying. He was pursued to pay but refused to pay and the bank instructed the solicitor to recover the balance. He sent a demand notice to the customer but he refused. I can recognise the application and solicitor’s demand notice. These are the documents just shown to me.

Mr. Dada: I seek to tender the two documents in evidence.

Court: Defendant’s application dated 2/1/98 and the plaintiff’s demand notice dated 29/10/98 are admitted as exhibits 1 and 2 respectively.

Witness: After the demand notice the defendant refused to pay so he was sued. We have the defendant’s statement of account extracted from our records at the end of every month. I partake in the preparation of the account statement. I can therefore recognize it. We have prepared one from January, 1998 as to date (June 2001). This is the statement.

Mr. Dada: I seek to tender the statement of account in evidence.

Court: Defendant’s statement of account dated 1st January, 1998 to 19th June, 2001, is hereby admitted in evidence and marked as exhibit 3. The debt balance is now N1,398,519.81 D.R. I pray for the grant of the balance. The judgment of this court on 29/7/99 in the sum of N300,000 was complied by the defendant in paying N130,000.00 has been reflected on 11/9/2000 and N30,000.00 on 26/4/2000 as reflected in exhibit 3. That’s all.

Mr. Dada: I pray for judgment since the defendant is absent.

This is the form the proceedings for the 19th June, 2001, took before judgment was given on that day. The proceedings for the 19th June, 2001, can be seen on pages 6 and 7 of the printed record. The learned trial Judge entered judgment in favour of the respondent in the sum of N1,398,519.81 with 10% interest from the 19th June, 2001, until the full satisfaction of the Judgment.

Being dissatisfied with the judgment, the appellant filed a notice of appeal with the leave of this court, which was granted on the 19th day of March, 2002. The grounds of appeal contained in the said notice of appeal are as follows:-

Ground 1:

The learned Judge of the trial High Court erred in law by wrongly assuming jurisdiction to enter Judgment on the 19th day of June, 2001, in favour of the respondent in breach of constitutional requirement of address as a condition precedent to entry of judgment and when the business the court was meant to entertain on the 19th day of June, 2001 was the hearing of the case and not judgment.

PARTICULARS

(a) That the court sat on the 21st day of March, 2001, and adjourned the matter to the 24th of April, 2001, for hearing with an order that hearing notice be served on the appellant.

(b) That the hearing was not served on the appellant in compliance with the order of the court dated 21st March, 2001, and the court could incidentally not sit on the stated date.

(c) That hearing notice, supposedly from the court registry was served on the appellant’s solicitors office that the matter was adjourned to 19th June, 2001, for hearing but was unfortunately not brought to the attention of the solicitors on account of mix ups occasioned by the facts that the receiving clerk was on relief duty, due to the absence of the secretary, who was away for burial.

(d) That the court that sat on the 19th day of June, 2001, allowed the respondent to call his available witness and entered judgment immediately therefore, in its favour, when in fact the matter was meant for hearing and not judgment, without even according the appellant an opportunity to address the court in line with constitutional requirements of section 294 of the Constitution that courts of record shall deliver their decisions in writing not later than ninety days after the conclusion of evidence and final address.

Ground 2:

The trial Judge erred in law, when he failed to invite the appellant and ask whether he intends to call evidence, to sum up the evidence given by the respondent and comment thereon and address the court after the conclusion of the respondent’s evidence in particular breach of Order 37 rules 11, 12 and 13 of the Kano State High Court (Civil Procedure) Rules, 1988 thereby occasioning a miscarriage of justice against the appellant.

PARTICULARS

(a) That Order 37 rules 11, 12, and 13 require that:

(i) That the party on whom the burden of proof is thrown shall begin by producing his evidence

(ii) The other party shall on conclusion of the beginning party be asked if he intends to call evidence.

(iii) That the other party shall be entitled to sum up the evidence already given if he does not intend to call evidence.

(b) That the other party shall be at liberty to state his case upon conclusion of the party beginning.

(c) That the appellants were denied all the opportunity, right and privilege stated above, in clear breach of Order 37.

Ground 3:

The learned trial Judge erred in law, and in breach of fair hearing principles as enshrined in section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, by denying the respondent his constitutional right to address the court as guaranteed by section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999.

PARTICULARS

(a) That the law is settled that a person shall be entitled to a fair hearing in such manner as to secure independence and impartiality in accordance with section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999.

(b) That section 294(1) of the Constitution requires court established under the Constitution to deliver decisions in writing not later than 90 days after the conclusion of evidence and address.

(c) That by the provisions of section 294(1), evidence and address are implied twin conditions precedent to the delivery of judgments.

(d) Yet, the trial court delivered and entered judgment without giving the appellant an opportunity to address it.

Ground 4:

The learned trial Judge erred in law and used his discretion wrongly by entering judgment in favour of the respondent on the 19th day of June, 2001, in disregard of the antecedence of the case relating to the conduct of the parties.

PARTICULARS

(a) That the learned trial Judge had granted several concessions to the respondent by extending time for him to file his statement of claim out of time, granting him several adjournments when he could not produce his witness, and again when he could not comply with the court order to serve hearing notice on the appellant.

(b) That no such concession was ever granted in favour of the appellant and the court rushed to judgment at the only one time the appellant could not attend court due to the administrative mix ups in the appellant solicitor’s office.

RELIEFS SOUGHT:

1. An order setting aside the judgment of the Kano State High Court, dated the 19th day of June, 2001, in suit No.K/352/99 by which judgment was entered in favour of the respondent in the sum of N1,398,519.81 with 10% interest at the court’s rate till full satisfaction of the judgment.
2. An order directing re-enlistment of the suit for continuation with the hearing of the matter before another Judge.

The appellant’s brief of argument is dated the 20th May, 2003, and filed same day. Arising from the four grounds of appeal contained in the notice of appeal, the appellant formulated the following two issues for the determination of this court –

ISSUE No.1 – Whether the failure of the learned High Court Judge to consider the provisions of section 294 of the Constitution of the Federal Republic of Nigeria, 1999, Order 37 rules 11, 12 and 13 of the Kano State High Court (Civil Procedure) Rules, 1988, and the fact that the business that the court was meant for on the 19th June, 2001, was the hearing of the matter and not judgment is not such an irregularity in procedure sufficient to occasion a miscarriage of justice and vitiate the proceedings and the judgment of the High Court.

ISSUE No.2 – Whether a breach of the principles of fair hearing and miscarriage of justice was not occasioned by the failure of the learned trial High Court Judge to consider the antecedence of the case and the statement of defence filed by the appellant before the lower court in exercising its discretion to enter judgment dated the 19th June, 2001, in favour of the respondent.

An application on notice dated the 19th September, 2003, and filed on the 23rd September, 2003 for an extension of time to file respondent’s brief of argument out of time and to deem same as having been properly filed and served and which application was brought pursuant to Order 6 rule 4(1); Order 3 rule 4(1) of the Court of Appeal Rules, 2002 and section 16 of the Court of Appeal Act, 1981, was moved and granted by this court on the 19th February, 2004. In the said brief of argument, the following two issues were formulated by the respondent for the determination of this court –

ISSUE No. 1 – Whether by the peculiar circumstances of this matter particularly the day judgment was entered in favour of the respondent on the 19th June, 2001, there was a breach of the constitutional requirement of address as a condition precedent to delivery of the said judgment or the provisions of Order 37 rules 11, 12 and 13 of the Kano State High Court (Civil Procedure) Rules, 1988.

ISSUE No.2 – Whether the learned trial Judge properly exercised his discretion when he entered judgment in favour of the respondent and whether the provisions of section 36(1) and 294(1) of the Constitution of the Federal Republic of Nigeria 1999 were breached in the process.

The Appeal was fixed and came up for hearing on the 13th May, 2003. Counsel for the appellant, Abubakar Malami adopted the brief of argument of the appellant dated the 20th May, 2003, and filed same day and urged this court to allow the appeal. Counsel for the respondent M. B. Adoke, Esq. adopted the respondent’s brief of argument attached as exhibit “UGI” to a motion on notice dated the 19th September, 2003, and filed on the 3rd September, 2003 for an order of court to extend time within which the respondent was to file its brief of argument and to deem same as having been duly filed and served and which application was moved and granted on the 19th February, 2004. He urged this court to dismiss the appeal.

Having gone through the printed record and the respective briefs of argument of the parties, I think that the only issue for determination in this appeal is whether the principles of fair hearing were strictly adhered to when the learned trial Judge proceeded to hear and determine and pronounce judgment in favour of the respondent in default of appearance of the appellant in court on the 19th June, 2001.

Blacks Law Dictionary 5th edition page 537 defines the term “Fair Hearing” as “One in which authority is fairly exercised; that is, consistently with the fundamental principles of justice embraced within the conception of due process of law. Contemplated in a fair hearing is the right to present evidence, to cross-examine, and to have findings supported by evidence.” In Thomas Eniyan Olumesan v. Ayodele Ogundepo (1996) 2 NWLR (Pt.433) 628, (1996) 2 SCNJ page 172 at page 184 the Supreme Court said;

“It is a basic principle of law that where a person’s legal rights or obligations are called into question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regard to such rights or obligations. Put differently, it is an indispensable requirement of justice that an adjudicating authority to be fair and just shall hear both sides, giving them ample opportunity to present their cases. See Gukas v. Jos Int. Breweries Ltd. (1991) 6 NWLR (Pt.199) page 614 at page 623 and Alhaji Mohammed and Anor v. Lasisi Olawunmi (1990) 2 NWLR (Pt. 133) page 458 at page 485. Accordingly, a hearing can only be said to be fair when, inter alia, all the parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused or denied a hearing, or is not given an opportunity of being heard, such hearing cannot qualify as a fair hearing under the audi alteram partem rule. See Aladetoyinbo v. Adewumi (1990) 6 NWLR (Pt. 154) page 98; Otapo v. Sunmonu (1987) 2 NWLR (Pt 58) page 587” (Underlining mine for emphasis)

In the present case, following the consent judgment in the sum of N300,000.00 with 10% interest until full liquidation of the judgment entered in favour of the respondent, the court in the same judgment went ahead to order pleadings on the 29th July, 1999. From the printed record, the case suffered a number of adjournments at the instance of the appellant or respondent or sometimes the court itself but pleadings were subsequently filed and exchanged. The statement of claim is dated the 8th September, 1999 and filed same day while the statement of defence is dated the 8th December, 1999 and filed same day. As will be seen from the printed record, when the matter came up in court on the 21st March, 2001, plaintiff’s (now respondent) counsel O. A. Dada, Esq. informed the court that the matter was for hearing and that he did not notify the defendant who was absent from court. He then applied for another date to notify the defendant (now appellant) and went ahead to suggest the 24th April, 2004. The court then ruled as follows:

“Case is adjourned to 24/4/2001 for hearing. New hearing notice to be sent to the defendant’s counsel.”

The records do not indicate any other court sitting until the 19th June, 2001, when the defendant (now appellant) was absent and the respondent’s counsel who was present in court informed the court that the case was for hearing and that the defendant had been served with a hearing notice whereupon the case proceeded to be heard and P.W.1 Franka Okolo, the only witness for the plaintiff (now respondent) gave evidence, tendering some documents in the process after which the plaintiff’s counsel requested for judgment to be given and the learned trial Judge then gave judgment.

Counsel for the respondent had informed the court on the 19th June, 2001, shortly before hearing in the case began that the defendant (now appellant) had been served with a hearing notice. Service is a sine qua non to the hearing of any matter the absence of which vitiates a proceeding. It is so fundamental that it should never be toyed with. Apart from the jurisdiction of a court to entertain a matter the absence of which vitiates the entire trial, lack of service comes a close second. Particular (c) of ground 1 of the notice of appeal admits this fact of service when it stated thus:-

“That hearing notice, supposedly from the court registry was served on the appellant’s solicitor’s office that the matter was adjourned to the 19th June, 2001, for hearing but was unfortunately not brought to the attention of the solicitors on account of mix ups occasioned by the fact that the receiving clerk was on relief duty, due to the absence of the secretary who was away for burial”.

It is therefore abundantly clear that the appellant was served with a hearing notice through his solicitor indicating that the matter would come up for hearing on the 19th June, 2001. Admission of “mix ups” in the appellant’s solicitor’s office are a serious sign of disorganization and disorientation which should not be blamed on the trial court. By the service of the hearing notice on the appellant through his solicitor, the appellant was undoubtedly given an opportunity to be heard, but his house was in shambles and he failed to attend court on the said 19th June, 2001, when the matter came up for hearing. What was the court expected to do with a matter fixed for hearing on the 19th June, 2001, when there was ample proof that the defendant or his counsel though served with a hearing notice not only failed to show up in court but also failed to notify the court in some way of the reasons for his absence? Order 37 rule 2 of the Kano State of Nigeria High Court (Civil Procedure) Rules, 1988 provides as follows:

“If when a trial is called on, the plaintiff appears and the defendant does not appear, then the plaintiff may prove his claim so far as the burden of proof lies upon him.”

Broken into compartments –

(a) On the 19th June, 2001, a trial was called in the sense that the matter was fixed for hearing on that day.

(b) The plaintiff was present in court and the defendant was absent without any excuses or explanations to court.

(c) The burden of proof of the claim before the court lay with the plaintiff (now respondent).

All these conditions clearly present the plaintiff (now respondent) was allowed to prove its claim which it did through its sole witness Franka Okolo who gave her evidence as P.W.1. It is therefore, abundantly clear that the appellant was given full opportunity of being heard. A person who was not heard but was given ample opportunity of being heard which he failed to make use of cannot thereafter complain of a loss of fair hearing.

The appellant has contended that it was wrong for the trial Judge to have entered judgment immediately after the conclusion of proof of the plaintiff’s (now respondent) case. This reasoning is absurd, as it does not represent the correct position of the law. Order 37 rule 7 of the Kano State of Nigeria High Court (Civil Procedure) Rules, 1988, provides that:-

“The trial Judge shall at or after trial, direct judgment to be entered as he shall think right and no motion for judgment shall be necessary in order to obtain such judgment”.

There is no ambiguity in this provision. The trial court can either turn in a judgment immediately after the conclusion of the trial or at some later date not exceeding ninety days from the full conclusion of the case. See section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999. Reference to “conclusion and final addresses” contained in section 294(1) of the Constitution of the Federal Republic of Nigeria 1999, simply means the final conclusion of the case. It does not and should never be taken to mean that there must be final addresses by counsel before the provisions of section 294(1) become operative. This is because it is not in every instance that a case gets concluded by addresses of counsel. This case came to a conclusion after P.W.1 Franka Okolo had given her evidence in the course of which she tendered some documents which were admitted by the court as exhibits and after which Mr. O.A. Dada counsel for the plaintiff (now respondent) prayed for the court’s judgment. This is so even without the necessity for an address and the ninety days requirement under section 294(1) of the Constitution within which the court was to deliver its written judgment began to be counted on the 20th June, 2001, the day next following the conclusion of the case. It has been found necessary to treat this aspect of the matter in some detail because of the erroneous impression of the appellant’s counsel that he was denied the right to address court. What the appellant wanted was for the court to bend over backwards or turn the hand of the clock right backwards and allow him to take part in a proceeding when it was clearly too late to do so. He cannot wake up from some deep slumber and demand a right that he indeed does not possess. Fair hearing is not a one-way affair. It affects both patties. The respondent had as much right to press on with the hearing of his case, if the appellant being aware that the case was fixed for hearing, having been served with a hearing notice to that effect failed to show up in court without any explanations to court for such absence from court. To deny the respondent the opportunity to proceed with his case in such circumstances is indeed to deny him the right to fair hearing. For the purposes of this case therefore, section 294 of the Constitution which the appellant has made heavy weather of, is absolutely irrelevant. In the same vein Order 37 rules 11, 12 and 13 of the Kano State of Nigeria High Court (Civil Procedure) Rules, 1988, relied on by the appellant is irrelevant for the simple reason that, that order and the rules refer to the procedure to be followed by parties in the conduct of their case. In this case there was just one party – the respondent. What the appellant would have done and which he failed to do was to have applied to the same court that delivered the judgment to set it aside under Order 37 Rule 4 of the Kano State of Nigeria High Court (Civil Procedure) Rules, 1988, which states that:-

“Any judgment obtained where one party does not appear at the trial may be set aside by the court upon such terms as may seem just upon an application made within six days after the trial or within such longer period as the court may allow for good cause shown”

The only issue for determination must therefore be resolved in favour of the respondent. The appeal is lacking in merit and ought to fail. It fails and is accordingly dismissed. The judgment of Haliru, J. of the Kano State High Court, which was delivered on the 19th June, 2001, in suit No.K/352/99, is accordingly affirmed. There shall be N5,000.00 costs in favour of the respondent.

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Other Citations: (2004)LCN/1627(CA)