Isah Saidu & Ors V. Sadiq Mahmood (1997)

LawGlobal-Hub Lead Judgment Report

OGUNTADE, J.C.A. 

The respondent was the plaintiff before the lower court where he brought a claim for damages in defamation against the appellants as the defendants. He also sought against the appellants an injunction to restrain them from further publishing the alleged defamatory statement of or concerning him.

The case was heard by Ozoh J. of the Bauchi State High Court. On 23/1/91, the trial judge awarded N250, 000.00 as damages against the appellants jointly and severally. The appellants have brought this appeal against the said judgment on two grounds of appeal which read:

“(1) The learned trial Judge erred in law by entering judgment for the plaintiff without notification of the said judgment to the defendants as provided for by order 40 rules 2 and 3 of the Bauchi State High Court Rules.

Particulars of Error

(a) Contrary to Order 40, Rules 2 and 3 of the Bauchi State High Court Civil Procedure Rules, 1987, the court fail (sic) to serve a notice to attend and hear judgment to the defendant when it reserved judgment on the 11th day of December, 1990.

(b) The trial court was wrong when its (sic) held “Failure of the defendant to proffer any evidence to court to buttress their averments has the same effect as abandonment.

(c) Had the Honourable Court satisfied itself by applying order 40 rules 2 and 3, it would not have come to this conclusion particularly as he was satisfied that the appellants filed a defence.

(2) The learned trial Judge erred in law when he did not issue hearing notices to the appellants who were not in court before conducting the proceedings to finality and giving judgment against the appellants then defendants.

Particulars

(a) The appellants had filed their statement of defence when they became aware of the suit.

(b) A date was set for hearing on which the appellants were not opportuned to be present in court or represented by counsel.

(c) The learned trial Judge proceeded to hear the evidence of respondent witnesses and adjourned the case to some other days without serving hearing notices to the appellants.

(d) Judgment was given based on the evidence of the respondent’s witnesses which the appellants had no opportunity to challenge.”

Before I set out the issues for determination formulated by the parties, it is necessary that I make some comments about the appellants first ground of appeal reproduced above. The complaint under the principal ground is that the trial judge had failed to send a notification to the appellants as to the date of judgment contrary to Order 40 rules 2 and 3 of the Bauchi State High Court Civil Procedure Rules.

That being the case, the particular identified as (b) and (c) under the said ground of appeal which critized the trial court’s approach to the appellant’s statement of defence (i.e. by treating the averments contained in the statement of defence as abandoned) do not relate to the principal complaint in the said ground of appeal.

They raise, on their own, independent issues which have no bearing with the principal complaint. They must be and are accordingly struck out.

In the appellant’s brief, the issues for determination were stated thus:

“(a) Whether or not the learned trial Judge can proceed to give judgment against the appellants as he did on file 23rd January, 1991 without complying with the provisions of Order 40 Rules 2 and 3 of the High Court Rules of Bauchi State, 1987.

(b) Whether or not it is correct to say as did the learned trial Judge that failure of the appellants to proffer any evidence before the court in support of their statement of defence amounted to an abandonment of the statement of defence.

(c) Whether or not there has been fair hearing in the proceeding at the trial court.”

In the light of my observation made in relation to the particulars subjoined as (b) and (c) to the first ground of appeal, the appellants issue (b) above is irrelevant as it does not flow from any ground of appeal. See Ugo v. Obiekwe (1989) 1 NWLR (Pt.99) 566 S.C.; Modupe v. The State (1988) 1 NWLR (Pt.87) 130 S.C.; Madagwa v. State (1988) 5 NWLR (Pt.92) 60 S.C. It is therefore struck out.

In the respondent’s brief filed, the issues for determination were formulated thus:

“(1) Whether it is competent for the appellants without the leave of this honourable court to raise new issues in this appeal.

(2) Whether it could be said that the learned trial Judge reserved judgment as envisaged by the provisions of Order 40 rules 2 and 3 of the Bauchi State High Court Civil Procedure Rules, having announced in the open court the date fixed for judgment.”

It is manifest from the respondent’s issues reproduced above, that the 1st issue does not arise or now from any of the appellant’s two grounds of appeal. It is therefore irrelevant and must be discountenanced. A party who raises a preliminary objection as the respondent has done in this case, ought to pursue his preliminary objection as such and not as an issue for determination in the appeal. In any case, the notice of preliminary objection raised would appear from its substance, to be unrelated to the appellant’s grounds of appeal. I think there is an error somewhere on the part of the respondent. The appellant’s first issue is to the effect that the lower court erred by proceeding to give judgment against the appellant without first complying with Order 40 rules 2 and 3 of the Bauchi State High Court Civil Procedure Rules. I earlier struck out the appellant’s second issue for determination which is issue (b) reproduced earlier. The appellant’s third issue is a poser as to whether they had received a fair hearing in the proceedings before the lower court.

These two issues I shall take together. It is necessary that I examine the procedure followed by the lower court. This will help in the determination of the issues raised in this appeal which boil down to whether or not the lower court had followed the right approach in the proceedings before it.

This matter first came before the lower court on 20/9/90. Both parties were absent. But they were represented by their counsel. The case was then adjourned to 6/11/90 for hearing. On 6/11/90; the defendants were absent, and were not represented by their counsel. Hearing opened with the testimony of P.W.1. The case was adjourned to 4/12/90 for further hearing. On 4/12/90, the defence counsel and the defendants were again absent while plaintiffs counsel was present. The case was adjourned to 11/12/90 “for hearing to continue”. On 11/12/90, P.W.2 to P.W.5 testified. The case for the plaintiff was closed and immediately after, plaintiff’s counsel addressed the court. The case was then adjourned to 23/1/91 for judgment. On the said 23/1/91, Ozoh J delivered judgment awarding to plaintiff N250, 000.00 damages. It is to be noted that the lower court did not cause “Hearing Notice” to be served on the defendants between the date, the hearing opened on 6/11/90 and 23/1/91 when the hearing ended with the delivery of the judgment. There was therefore no indication that the defendants had been aware that the case was to come up on 4/12/90, 11/12/90 and 23/1/91. These are the brief relevant facts.

Order 40 rules 2 and 3 of the Bauchi State High Court rules provides:

“(2) If the court reserves judgment at the hearing, parties to the suit shall be served with notice to attend and hear judgment unless the court at the hearing states the day on which the judgment will be delivered, in which case there shall be no further notice.

(3) All parties shall be deemed to have notice of the decision or judgment if pronounced at the hearing and all parties served with notice to attend and hear judgment shall be deemed to have notice of the judgment when pronounced.”

Appellant’s counsel has argued that the lower court had not complied with order 40 rule 2 of the Bauchi State High Court Rules in that no “hearing notices” were served on the defendants subsequent to 11/12/90 to enable them attend court on 23/1/91 when judgment was delivered. Respondent’s counsel on the other hand argued that since the lower court had on 11/12/90 stated in the open court that judgment was to be delivered on 23/1/91, there was no reason to serve the defendants with a hearing notice.

When the varying arguments of the parties’ counsel were looked at super facially, one gets the first impression that respondent’s counsel’s argument is correct since the trial Judge had on 11/12/90 stated that judgment would be delivered on 23/1/91. But it seems to me that in construing Order 40 rule 2 of the Bauchi State High Court Rules, I must bear in mind the purpose the said rule seeks to serve. The rule in my reasoning is to enable all parties to a matter know the date the judgment is to be delivered when the High Court reserves judgment without stating the date of delivery. By a logical extension or that reasoning, where a party was not in court when the judgment was adjourned to a particular date, he would not have notice of the date of judgment unless served with a “Hearing Notice”. It seems to me therefore that in order to serve fully the purpose of Order 40 rule 2, it is important that where a party is absent on a date a case is fixed for judgment, the trial court must cause “Hearing Notice” to be served on him against the date of judgment.

Now as to the second issue for determination, can it be said that the defendants had a fair hearing, I think not. It is possible to argue that since the defence counsel was present in court on 20/9/90 when the case was adjourned to 6/11/90 for hearing, the defendants ought to be fixed with constructive notice of the subsequent dates of hearing up to the date of judgment. This is because if the defence counsel had been in court on 6/11/90, he would have had notice of the subsequent hearing dates and the date of judgment.

But I do not look at the matter so narrowly. A court must be willing to go the extra mile in satisfying itself that a party to a case has a notice of the hearing date. I do not fault the lower court for proceeding with the hearing on 6/11/90 since the lower court was entitled to expect that the defence counsel who was in court on 20/9/90 when the case was adjourned to 6/11/90 would also be in court on 6/11/90.

But the lower court should have caused hearing notice to be served on the defendants for 4/12/90, 11/12/90 and 23/1/91. In doing so, the court would have exercised the requisite caution and satisfied itself that indeed, the defendants had due notice. This may appear to be an over-indulgence of the defendants, but I think it is a price that is desirable to pay in the quest to attain maximum justice. Not to have taken this precaution was a mistake on the part of the trial Judge. It is a mistake common enough with our courts but it must not be overlooked as it may in some case, lead to a miscarriage of justice as indeed it has done in this case.

I would allow this appeal. The judgment of the lower court is set aside. The case is to be tried de novo before another judge of the Bauchi State High Court. I make no order as to costs.

Other Citations: (1997)LCN/0267(CA)