Gidiya & ORS v. Sanusi & ORS (2022)

LAWGLOBAL HUB Lead Judgment Report

UWANI MUSA ABBA AJI, J.S.C. (Delivering the Lead Judgment):

The Respondents as plaintiffs commenced the action at the High Court of Niger State, Kontagora division, challenging the process of selection and the selection of Sarkin Bauchi, the district head of Rijau. Both parties filed their statement of claim and amended statement of defence respectively and proceeded to trial.

At the close of trial on 9/5/2002, the Respondents’ Counsel applied for the cross-examination of the Secretary of the emirate council but the application was refused. Then, he applied for a date for address and the trial Court directed that all addresses be submitted on 20/5/2002. The Respondents subsequently filed a motion for leave to call fresh evidence.

There was no hearing notice served on the Respondents for the hearing of the motion but the Registrar wrote the Respondents’ Counsel of an adjournment for judgment on 27/5/2002. On the said date fixed for judgment, that is 27/5/2002, neither the Respondents nor their Counsel was in Court and the motion on notice filed by the Respondent was struck out and the trial Court proceeded to deliver its judgment.

Dissatisfied, the Respondents filed an appeal to the lower Court on 6 grounds and the lower Court held that there was denial of fair hearing, hence the appeal by the Appellants. The Appellants therefore have distilled these 2 issues for determination thus:

1. Whether the Court of Appeal was right in declaring the High Court’s judgment a nullity and ordering trial de novo by another judge?
2. Whether the Court of Appeal was right in failing to consider the other issues formulated for determination, including the preliminary objection raised in the Appellants’ brief?

The Respondents on the other hand formulated these issues:
1. Whether the Court of Appeal was right when it held that the trial at the trial Court was void as a result of lack of fair hearing in the procedure adopted by the trial Court.
2. Whether the Court of Appeal was right after holding that the case was void due to lack of fair hearing not to consider other grounds of appeal.

I shall consider the appeal on the Appellants’ issues for determination joined together.

It is submitted by the learned Counsel to the Appellants that when the Respondents’ Counsel became aware that his motion was slated for hearing on 27/5/2002 as well as the judgment, he refused to appear in Court on 27/5/2002, neither was there any notice for the absence. That the Respondents’ motion was struck out for lack of diligent prosecution before the Court delivered its judgment.

He further submitted that both the Respondents and Counsel were aware of a date for judgment but voluntarily elected to be absent. Also, he highlighted that the Respondents’ Counsel had the opportunity to address the Court but waived his right to do so and cannot hide under the guise that they were waiting for the Appellants’ address before they could file theirs.

Again, that the lower Court ignored to consider the preliminary objection filed by the Appellants even when the Respondents had conceded part of it and other issues raised which affected the case of the Appellants. He urged this issue to be resolved in favour of the Appellants and to allow the appeal.

Learned Counsel to the Respondents submitted that no hearing notice was issued the Respondents at the trial Court for their motion to call fresh evidence but the trial Court proceeded to strike out the suit on 27/5/2002 and deliver judgment on same day. Thus, that the Court did not have jurisdiction to determine and strike out the motion. He submitted that the Respondents were denied their right to fair hearing with regards to the motion. He further submitted that it amounted to denial of fair hearing to deny the Respondents the right of address.

It is also submitted that once a trial is found to be a nullity, other arguments and issues have become academic. He urged this Court to dismiss the appeal and affirm the judgment of the lower Court.

RESOLUTION OF ISSUE:
The trial Court at page 99 of the record after close of evidence ordered that “Counsel are directed to submit written addresses to reach the Court on or before the 20/5/2002.” Three days to the deadline, on 17/5/2002, the Respondents’ Counsel filed a motion on notice to call fresh evidence of DW2. See page 100 of the record. on 21/5/2002, the Registrar of the trial Court wrote the Respondents’ Counsel on 21/5/2002 that the matter was “fixed for judgment on Monday, the 27th day of May, 2002.” See page 103A.
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Consequently, the Respondents’ learned Counsel at page 103B challenged and protested that since their motion was not heard, the matter was “not ripe for judgment”.

When the matter came up on 27/5/2002, supposedly for the motion of the Respondents and judgment, the Respondents and their Counsel were absent and the trial Court proceeded thus:

“There is filed before this Court a motion on notice dated 17/5/2002 as filed in Minna brought pursuant to Order 36 Rule 29 of this Court’s Civil Procedure Rule, for leave to call fresh evidence by the plaintiffs. The learned Counsel to the said plaintiffs is not in Court to move same, so it is hereby ordered struck out.
This Court had fixed this case for judgment today and notice to that effect was (sic) dispatched to the Counsels dated 21/5/2002. I shall therefore proceed to deliver the judgment accordingly.”