Linus N. Nwaigwe & Ors V. Sidney Anyanwu (2016)

LawGlobal-Hub Lead Judgment Report

ITA GEORGE MBABA, J.C.A. 

Appellants filed this appeal against the judgment of Imo State High Court, in Suit No. HOW/201/98, delivered on 12/12/2008 by Hon. Justice C. I. Durueke, whereof the trial Court entered judgment for the Plaintiff (Respondent) and dismissed the Counter-claim of the Defendants (now Appellants). Appellants had obtained the order of this Court on 30/1/13 to appeal, by way of extension of time to do so.

The claims at the Lower Court, as per the writ of summons filed on 7/9/1998 and the Amended statement of claim of 14/2/2006, were for:
i) A declaration that the plaintiff is entitled to the statutory Right of occupancy over and in respect of the properties known as and called plots 255 and 256 Ikenegbu Layout Extension Owerri, Imo State.
ii) Perpetual injunction restraining the defendants jointly and severally from acts of trespass into the said plots or parcel of land.

“A brief facts of the case at the Lower Court shows that Appellants (as Defendants) were not keen at filing their defence. They filed memorandom of appearance on 20/1/04. In March 2004, they were

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granted 21 days extension of time to file their defence, which they failed to do see pages 69 and 73 of the Records. When the Plaintiff filed a motion for judgment, the Defendants (Appellants) then brought another application in 2005 to file their defence and a deeming order, which was granted and the defence deemed duly filed. See page 89 of the Records.

In the statement of defence, Appellants raised a counter claim, as follows:
Wherefore: The 3 defendants claim the sum, of N1,000,000.00 (One Million Naira) being special and General Damages for trespass.
Particulars:
(a) Cost of building the fence destroyed by the Plaintiff is N300,000.00
(b) General Damages is N700,000.00
(See page 87 of the Records of Appeal)

Hearing commenced on 2/3/2006, with PW1, PW2 and PW3 testifying, without the defendants Counsel appearing to cross examine them. On 21/11/2006 the plaintiff closed his case and the matter was adjourned for judgment. Before the judgment could be delivered, the Defendants brought a motion praying to be allowed to defend the case. That application was allowed on 11/5/2007,

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when the trial Court also ordered for accelerated hearing of the suit.

PW1, PW2 and PW3 were recalled and cross-examined but PW3 was partly cross examination on 2/7/2008 and the case adjourned for continuation on 15/7/2008. On that 15/7/2008 the Defendants (Appellants) were not in Court and the matter was adjourned off record. After the proceedings of 2/7/2008, the Defendants never came back to Court.

The Respondent said, on 22/5/2008, when the defendants? Counsel was to conclude the cross examination of PW2, he was in Court, but when the matter was called he had disappeared, and the matter was stood down but Counsel never appeared again. And on 26/11/2008, when the matter was again adjourned, the Appellants (Defendants) and Counsel were absent and on the application of the Plaintiff?s Counsel, the Defendants were foreclosed and the matter adjourned for judgment on 12/12/2008, when judgment was entered for the Plaintiff.

Appellant had later filed a motion to set aside the judgment and the same was dismissed on 9/2/11 by the trial Court, in a considered Ruling.

?Appellants filed this appeal against the Judgement of 12/12/08 as

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per their Notice of Appeal on 14/2/2013 on pages 209 to 212 of the Records of appeal in which they raised two (2) grounds of Appeal. They filed their Brief of arguments on 26/9/14 and formulated a lone issue for the determination of the appeal, namely:
“Whether the appellants’ constitutional rights to fair hearing were not breached by the trial Court in arriving at the judgment appealed against such that the judgment is a nullity and liable to be set aside by this Honourable Court.”

It should be noted that the Appeal was brought by 3 Appellants out of the 5 Defendants, the Appellants being the 1st, 2nd and 5th Defendants.

The Respondent filed a Notice of Preliminary objection on 20/3/15 against the hearing of the Appeal and also raised same in his Brief, where he also argued the objectionon pages 3 to 9. The grounds of the preliminary objection were that:
(a) The Appeal is abuse of Court process in that the issue formulated in the appeal have been ruled upon by a Court of  competent jurisdiction in a motion to set aside the ruling.
(b) The Notice of appeal is incompetent and not properly before the honourable

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Court and the Honourable Court lacks jurisdiction to entertain same, appellants having failed to pay the appropriate filing fees.

The Respondent, alternatively, adopted the lone issue by Appellants for the determination of the appeal, upon arguing the appeal on the merits.

As is the rule, we have to take the preliminary objection first.
The Respondent had argued the preliminary objection in 3 parts:
(a) Appellants had earlier applied for the setting aside of the judgment of the trial Court, via a motion therefor, on the same grounds that they were not served with hearing notice and were denied fair hearing; that the trial Court had considered the argument and circumstances of the case and resolved against the Appellants. He argued that Appellant had not appealed against that decision of the trial Court; that they were not denied fair hearing, as held in the application to set aside the judgment. Counsel argued on the position of law on the status of a decision of Court not appealed against, that it remains valid and binding ? Okonobor Vs Edege Transp. Ltd (2010)2 KRL (Pt. 277) 725 at 731; S.P.D.C Vs XM FED LTD (2006)11 MJSC 29 at

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36.

He urged us to hold that Appellants, having not appealed against the decision refusing to set aside the judgment, cannot be heard to complain about the same issue; that having elected to apply to set aside the judgment, which was refused, their only remedy would have been to appeal against the said refused, not to appeal against the main judgment. He urged us to dismiss the appeal.
(b) Counsel also submitted that by Order 12 Rule 1 and the 3rd Schedule of the Court of Appeal Rules, 2011, Appellants? Notice of Appeal would be deemed filed on payment of N5,000.00 (Five Thousand Naira) as filing fees; that Appellants paid only N1,500.00 as filing fees for the notice of appeal; he argued that the jurisdiction of the Court to hear any matter is invoked by the filing of the appropriate processes which involves payment of the appropriate filing fees. He said that when a process is not dully filed before the Court, it does not exist in the eye of the law and such cannot invoke the jurisdiction of the Court. He relied on Ogli Memorial Farms Ltd Vs Nigerian Agricultural & Co-Operative Bank Ltd & Anor (2008)4 SCNJ 436; Ayodeji Vs Ajebola (2013)

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All FWLR (Pt.660)1327 at 1345; Shell Petroleum Dev. Coy Nig. Ltd Vs Prince Ray C Elewa & Anor ? Abia Transport Corporation & Ors Vs Quorum Consortium Ltd (2009)9 NWLR (pt.1145)1
(c) Counsel also submitted that this Court has no jurisdiction to entertain the appeal, as all the necessary parties are not before us; that by Order 6 Rule 2 (1) of this Court?s Rules, 2011, appeal is by way of re-hearing and may be regarded as a continuation of the original suit. He relied on Ngige Vs Obi (2006) 14 NWLR (Pt.799)1 at 225:

?Counsel said in this case, the plaintiff, who is the Respondent now, sued 6th Defendants, that all of them apart from the 6th Defendant, entered appearance to the suit, and later the 6th Defendant was reported dead and his name struck out; that at the time of judgment on 12/12/2008, the situation remained ? that is, 5th Defendant?s remained; he said that Appellants, for reasons best known to them, decided to drop the names of 3rd and 4th defendants; he argued that both 3rd and 4th defendants were necessary parties to the suit and invariable to this appeal, and that failure to make them parties to the appeal, robs

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this Court of jurisdiction to entertain the appeal. He relied on Green Vs Green (1987)3 NWLR (Pt.61) 480.
Counsel observed that one of the reliefs sought by Appellants is for retrial of the suit, and that, if granted, the suit will start de novo. He said this will, definitely, affect the 3rd and 4th Defendants, who would be made to stand trial, again. He said that a Court cannot make an order that will affect the interest or right of a person not a party in the suit and who never heard of the matter, as this will affect his right of fair hearing, relying on Section 36 (1) of the 1999 Constitution; NEC Vs IZUOGU (1993)2 NWLR Pt (275) 270 at 295.

He urged us to strike out the Appeal, upon up holding the objection.
Appellants filed a Reply brief on 20/1/16, which was deemed duly filed on 16/5/16, to contest the preliminary objection. Counsel noted that the third ground of the objection was not part of the original grounds of the preliminary objection as per the original Notice of Preliminary objection, filed on 20/1/15. He urged us to dismiss the grounds of objection in the notice, incorporated in the Respondents brief, for being

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misconceived and lacking in merit, in its entirely.

On ground one of the objection, Appellants said it was misconceived; that it is now settled law that the options are open to a defendant against whom a default judgment is entered, to apply to get the default judgment set aside or to appeal against the judgment; he said that the options are not mutually exclusive. Thus, the fact that Appellants application to set aside the judgment has been refused, does not bar them from appealing against that judgment. He relied on the case of Magna Maritime Services Ltd Vs Oteju (2005)14 NWLR (Pt.945)517 at 539, Idiata Vs Ejeko (2005)11 NWLR (Pt.936) 349 at 362. He added that Appellants had the right to appeal against the judgment or against the ruling refusing to set aside the judgment. He relied on Isong Vs Umoren (2010)6 NWLR (Pt.1190) 364 at 381; Davis Vs Guild Pine Ltd (2004)5 NWLR (pt.865) 131 at 147; N.H. Int’l SA Ltd Vs N.H.H Ltd (2007)7 NWLR (Pt.1032) 86 at 111 112; Muofunaya Vs Nwadiogbu (2014) All FWLR (Pt.727) 804 at 814.

On ground 2, Counsel said, this too is misconceived; he said that inadequate filing fees does not raise any

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issue of jurisdiction, especially where the error to collect the correct fees is not the fault of the party who filed the process, but that of the Court Registry.

He relied on Akpaji Vs Udemba (2009) All FWLR (Pt.471) 811, Eke Vs Akunne (2009) All FWLR (Pt.466) 2003 at 2048; Omojuyigbe Vs NIPOST (2010) All FWLR (Pt.543) 1907 at 1954; Amaechi Vs Okoye (2008) 12 NWLR (Pt.1101) 546; Anyanwoko Vs Okoye (2010)5 NWLR (Pt.1188)497 at 520 Saude Vs Abdullahi (1989)4 NWLR (Pt.116) 387 at 424.

On issue 3, Counsel submitted that the failure to make 3rd and 4th Defendants at the Court below, parties to the appeal, does not raise issue of jurisdiction; that the law is trite that mis-joinder or non-joinder of a party cannot defeat a case or matter; that that cannot be fatal to the proceedings, as the Court would deal with the matter in controversy regarding the rights and interest of the parties with the proper parties before it. He relied on F.G.N. Shobu Nig Ltd (2014) 4 NWLR (1396)45 at 63; Enterprises Bank Ltd Vs Aroso (2014)3 NWLR (Pt.1394) 256; Azubike Vs PDP (2014)7 NWLR (Pt.1406) 292 at 313.

In the instant case, Counsel said that the non joinder of the

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3rd and 4th Defendants at the Lower Court, as parties in this Appeal, will not defeat the appeal. He relied on the case of Adhekegba Vs Minister of Defence (2013)17 NWLR (Pt. 1382)126 at 146.
Appellant has the right to choose those who to appeal against and the points he wishes to convass. It is not compulsory, that all the parties in the Lower Court have to automatically be made parties to the appeal. The non inclusion of such person cannot make the appeal incompetent as contended by the Respondent

In the same vein, Counsel said, it is not compulsory that all parties, at the Lower Court have to be made parties to an appeal. He added that the question of fair hearing, raised for the determination of this appeal, can be dealt with by this Court, without the presence of the 3rd and 4th Defendants, whom Appellants have not complained against, and who did not appeal against the Judgment. He relied on Ok Contract Point Vs Progress Bank (1999)6 NWLR (Pt. 604) 631.
Counsel urged us to dismiss the Preliminary objection.

RESOLUTION OF THE PRELIMINARY OBJECTION
I think, as rightly argued by the Appellants Counsel,

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the 3 grounds and issues raised by the Respondent in the Preliminary objection were greatly misconceived by the Respondent. We have stated, several times, that Appellant, who had sought the order of the trial Court, to set aside a default judgment, is not barred from appealing against the default judgment, if the application to the trial Court to set aside the said judgment fails. And at that point, the Appellant can elect to appeal against the decision refusing to set aside the default judgment, or against the original decision i.e. the default judgment. What, I think, the Appellant cannot do is to take the two appeals at the same time or separately as the same objective would be expected.
In the recent case of Ehighibe Vs Ehighibe (2016) LPELR – 40047 (CA), we made this point clear, where, the Respondent made the same argument that Appellant cannot appeal against a default judgment, after having sought an order to set aside the default judgment, unsuccessfully; that he must appeal against the decision of the Lower Court, refusing to set aside the default judgment. We said:
“In my opinion, it is a strange submission, that has no place in

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law. There is no law that bars a party, who sought an order to set aside a default judgment and failed, from appealing against the default judgment, after the unsuccessful effort to get the trial Court to set aside the default judgment. Of course, after the refusal to set aside the default judgment, the affected party can elect to appeal against the order refusing to aside the default judgment, just as he can also appeal against the default judgment, and either way will lead to the same result, if he succeeds. He may not, however, appeal against the two decisions at the same time or after failing in one.
In the case of Idiata Vs Ejeko (2005) 11 NWLR (Pt.936)517 at 539, the Supreme Court said:
Learned Counsel for the Respondent rightly conceded that the appellant has two options: to apply set aside the ruling or to appeal against it. The two options are not exclusive. The fact that he took one of the options but failed to achieve the desired result, does not, ipso facto, estop from taking advantage of the other choice. They aimed the first weapon but missed the target. They are entitled to deploy their second weapon as long as

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they comply with any condition precedent, such as obtaining leave, if out time as in this case.

I think that is what Appellants did in this case. Having failed to persuade the trial Court to set aside the judgment entered for the Respondent, they elected to appeal against the said judgment. The Respondent cannot stop them to do so, or compel them to appeal against the order refusing to set aside the judgment, instead. And if the trial Court had considered issues of fair hearing in the application to set aside the default judgment and settled it, that can not, in my opinion, be thrown up as a bar to this appeal, alleging that Appellant did not appeal against that decision. The motion to set aside the default judgment cannot, by any stretch of imagination, be taken to be the decision of the trial Court underconsideration in this appeal, as that was not the judgment appealed against. Appellant cannot be barred from raising issues of fair hearing in this appeal, against the handling of the case leading to the default judgment, simply because fair hearing issue arose at the hearing of the motion to set aside the default judgment.

On the issue of the 3rd

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and 4th Defendants not being parties to this appeal, I think Appellant has the right to decide who to appeal against in an appeal out of all the persons who were parties at the Lower Court, just as the successful party has right to determine who to enforce the judgement against out of all the defendants held liable jointly and severally. The case of Adhekegia vs Minister of Defence (2013) 17 NWLR (pt. 1382) 126 at 146 appears to be very clear on this when it says:
“Appellant has the right to choose those who to appeal against and the points he wishes to convass. It is not compulsory, that all the parties in the Lower Court have to automatically be made parties to the appeal. The non – inclusion of such person cannot make the appeal incompetent as contended by the Respondent”

I therefore find no merit in the preliminary objection and the same is hereby dismissed.

Arguing the appeal, D.O. AGBO Esq., learned Counsel for the Appellant, submitted that in the light of the facts giving rise to the judgment appealed against, Appellants constitutional rights to fair hearing were breached by the trial Court; that Appellants were

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not given fair hearing, before the judgment appealed against, was delivered, in the light of the inconsistent sittings of the trial Court, from 15th September 2008 to 26th November 2008; he said that Appellants were entitled to hearing notice, in the interest of justice and the provisions of Constitution, relating to fair hearing. He said the Records of Appeal showed that the case was last heard on 2/7/2008, where PW3 (now Respondent) testified in-chief, and thereafter, the case was adjourned, on record to 15/7/2008, for continuation. He said that there was no evidence that the trial Court sat again to continue with the cross examination of PW3, but from endorsement, as contained in the case file, the Lower Court did not sit on 15/7/2008 and from the that 15/7/2008, the matter was adjourned, off record, to the following dates: 30/7/2008, 16/10/2008, 22/10/2008, and 13/11/2008. He said that the Court sat on 26/11/2008, but defendants were absent, apparently, for lack of knowledge of the fixture, but the trial Court proceeded with the matter, in the absence of the Appellants, and without any notice of hearing to them; that on the said 26/11/2008, the

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Respondents Counsel applied for the foreclosure of the Appellants and was obliged and the case adjourned for judgment on 12/12/2008. He submitted that the proceedings of 26/11/2008 and 12/12/2008 where, therefore, in breach of Appellants constitutional right of fair hearing. He argued that the law is settled, that where the original date of hearing is aborted for any unforeseen reason, it is incumbent on the Court to order fresh hearing notices on the parties. He relied on the case of International Bank Plc Vs Onwuka (2009)8 NWLR (Pt.1144)442 at 472 473; that failure to do so would occasion miscarriage of justice and violation of the partys constitutional right of fair hearing. Counsel also relied on Section 36(1) of the 1999 Constitution, as amended, and on the case of Odiong Vs Offiong (2011)16 NWLR (Pt.1272)11 at 119 121; JSC Cross River State Vs Young (2013)11 NWLR (Pt.1364)1 at 25 26; Denloye Vs M.D.P.C. (1968) All NLR, 306.

Counsel added that any judicial proceedings, conducted in breach of the fundamental rights of fair hearing, enshrined in the Constitution of the Federal Republic of Nigeria 1999, as

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amended, is void and liable to be set aside. He relied on the case of F.B.N. PLC Vs TSA Ltd (2010)15 NWLR (Pt.1216) 247 at 303; Ene Vs Arikpo (2010)10 NWLR (Pt.1203) 477 at 515 516 on the need for Court to issue hearing notice where parties are repeatedly absent in Court. He also relied in Tanko Vs UBA PLc (2010)17 NWLR (Pt.1221) 80, Victino Fixed Odd Ltd Vs Ojo (2010)8 NWLR (Pt.119)486, Agip (Nig) Ltd Vs Agip Petroli Intl (2010) 5 NWLR (Pt.1187)348 at 395.

He urged us to allow the appeal, set aside the judgment.
Responding, Counsel for the Respondent, C. Ihentuge Esq, submitted, that from the facts and circumstances of his case, the Appellants were not entitled to hearing notice and were not denied fair hearing. He said that the PW2 was partly cross-examined on 2/7/2008 and the case adjourned to 15/7/2008 for continuation of the cross examination; that, though the matter was adjourned, off-record on 15/7/2008, the endorsement in the Courts file showed neither Appellants nor their Counsel came to Court on that date; that the question would be why were they absent in Court on that date? And why did they have to wait till

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judgment, delivered on 12/12/2008, before they came to Court to complain?

He argued that Appellants were not diligent in defending the suit, which had been placed on accelerated hearing; that a party who is diligent about his case, will, after being absent from Court on a known date, go back to the Court to find out what happened in his absence; he said that Appellants did not do this. He argued that Appellants slept on their right and cannot be heard to complain of denial of fair hearing. He relied on Attorney General of Rivers State Vs Ude (2007)17 NWLR (Pt.1008) 456, where the Supreme Court said:
By the undisputed facts of this case, the Respondents were aware of the adjourned date and indeed the respondents asked for and were granted adjournment to continue with their case. The respondents deliberately neglected and abandoned their defences to the action, they have themselves to blame as the Court of Appeal stated. In my view, the Court of Appeal acted erroneously when they held that the respondents were under the circumstances entitled to be told of the adjourned date. They refused to appear in Court and had failed to find out what

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was happening in Court. They simply abandoned their case and accordingly, respondents were not entitled to fresh hearing date under the circumstances.

Counsel argued that Appellants, having failed to attend Court on 15/7/2008, had a duty to find out the status of their case. He urged us to resolve the issue against Appellants, saying that Appellants were granted opportunity to defend the suit but they failed and or neglected to utilize the same. He relied on Kaduna ile Ltd Vs Umar (1994)1 NWLR (Pt.319) 143 at 159; Newswatch Communication Ltd Vs Atta (2006)7 MJSC 38 at 95.
RESOLUTION OF THE ISSUE
The rather chequered history of this case and the manner the Appellants conducted their defence in the case at the trial Court, certainly, put them to great task to prove to the trial Court that they were seriouis about defending the suit and were not playing games or resort to delays to frustrate the trial of the case of the Respondent.

The case was filed in 1998. By January 2000, the Appellants had been served with the statement of claim. They did not enter appearance until 16/12/2004. Sometime, in March 2004, they were granted 21 days

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extension of time to file their statement of defence. They did not file the defence, until Respondent (as plaintiff) brought application for judgment. That roused them to file application for more time to file their statement of defence and to deem what they had filed as duly done. Their said statement of defence was therefore deemed duly filed on 28/4/2005. (See page 90 of the Records). Hearing commenced on 2/3/2006 and the PW1, testified in the absence of the defendants (Appellants). On that date Counsel for the plaintiff told the Court:
The matter is for hearing and incidentally, I met Counsel on the other side and he told me that he and his clients are no longer interested in the matter. But we are ready to prove our case for judgment. (See page 104 of the Records)

After taking the PW1, the case was adjourned for cross examination and continuation of hearing on 10/4/06. No hearing notice was ordered by the Court for the Defendants. There is no record of what happened on 10/4/06; but on 22/5/06 when the case was called, the parties were absent, and Chief V.O. Amadi appeared for Plaintiff and Achonolo Esq, who was said to be the last

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counsel for the defendants, was also absent. The trial Court adjourned the matter saying:
We cannot wait indefinitely for the defendants and their Counsel who appear to have abandoned the case or admitting liability. I will grant adjournment and if they (Defendants) do not appear by the next adjournment, then the plaintiff will be permitted to field another witness, if they have any.? Page 106 of the Records.

The case was adjourned to 26/6/06 and 3/7/06.

Again, there was no hearing notice issued to the Defendants.

is no record of any happening on 26/6/06 and 3/7/06 but on 20/7/06, the plaintiff was present and again the Defendants absent and without representation by Counsel. The trial Court took evidence from PW2 and adjourned to 24/10/06 for cross examination. He ordered hearing notice to be issued to the Defendants.

?There is no record or anything about. 24/10/06. There is, about 14/11/06 and the plaintiff was present and defendants were again absent and unrepresented. PW3 gave evidence and the case was adjourned to 21/11/06 for continuation. On 21/11/2006 the defendants were absent too. The trial Court allowed the

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plaintiff?s Counsel to apply to close their case and adjourned to 18/12/2006 for judgment.

Suprisingly, the Appellants became aware of the progress of the case, even when there was no hearing notice to them.

On 10/1/2007, Appellants (as defendants) filed a motion and sought order to be allowed to be heard to defend the case before judgment was delivered. They complained that they were not aware of the dates of hearing. They also said that some of them resided outside the jurisdiction and that they discovered their lawyer, Achonulo Esq, had withdrawn from the case, without informing them! They then brief M.K. Yusuf Esq to represent them.

The trial Court, reluctantly, granted their application on 11/5/2007, and adjourned the matter for hearing, and ordered for accelerated hearing. The Court subsequently allowed the recall of the PW1, PW2 and PW3 for cross examination. On that date (11/5/07) the trial Court said:
?Should the defendants further indulge in any delay tactics or show any indolence in complying with the mode of the accelerated hearing already ordered, the Court may foreclose the defence and deliver judgment on the

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evidence before it.? (See page 144 of the Records of Appeal).

On 5/3/2008, when the matter came up for hearing, Ogbusu Esq (Counsel for the plaintiff) applied for extension of time to file reply to the statement of defence of 1st 2nd and 5th Defendants and defence to counter claim. This was granted.

The cross examination of PW1 was done on 3/4/08, while that of PW2 was on 14/4/08 and 4/6/08. The PW3 was cross examined on 2/7/08 to a point and the case adjourned to 15/7/08 for continuation of the PW3?s cross examination.

There is no record of what transpired on 15/7/08, but on 26/11/08 when the Court sat, the plaintiff was in Court, while the Defendants were all absent and their Counsel. The Plaintiff?s Counsel Ogbusu Esq, told the Court that Defendants had again lost interest in the matter. He added:
?The last adjournment was 22/10/2008. From the records in the case file they have absented themselves from Court 6 times. I apply for the Court to foreclose them again and enter judgment in favour of the Plaintiff.? (page 164 of the Records).

The trial Court ruled:
?I think they should be

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foreclosed because there should be an end to litigation. Their lackadaisical attitude in this case has shown that they either have no defence or are not interested in the case or does (sic) not want the case to end. I therefore hereby foreclose the defendants from further defence in this case and adjourn for judgment on the records (sic) for far available to the Court. Case adjourned to 12/12/2008 for judgment. (page 164 of the Records of Appeal).

Meanwhile, in the supplementary Records of Appeal, on pages 4 and 5 thereof carrying the affidavit of Appellants in support of application to set aside the judgement appealed against, Appellants deposed:
4.) That after 2/7/2008 proceedings that matter was adjourned to several other dates such as 15/7/2008, 30/7/2008: 16/10/2008 and 22/10/2008.
7.) That after the proceedings of 2/7/2008 the other date and only date the matter came up on record was on 26/11/2008.
8.) The plaintiff did not apply for hearing notice to be issued and served on the defendants on 22/10/2008 before the matter was adjourned to 12/12/2008.

The above shows that the Appellants were following

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the case but stayed back from Court. And why did they not produce the records of representations on 15/7/08, 30/7/2008, 16/10/2008 and 22/10/2008, in the main Records of Appeal? I think they had something to hide!

In its judgment on 12/12/2008, while analysis how the Defendants failed to show diligence in the defence of the case the Court said:
From 14/4/08 to 26/11/08, when the defendants were foreclosed by the Court and adjourned for this judgment, the Defendants and their Counsel stopped coming to Court to conclude their defence. On 26/11/08 aforesaid, the case was called for continuation, the plaintiff and his Counsel were still absent. It must be noted that it will be absolutely impossible to satisfy the rights of fair hearing from both sides of the litigants when a party has made it impossible to reach him or hear him. See Bakare Vs Lagos State Civil Service Commission and Anor. (1992)8 NWLR (Pt.262) 641 at 692. See page 171 of the Records).

Were Appellants denied fair hearing, in the circumstances, when the trial Court proceeded to deliver judgment in the case based on the one sided evidence adduced by the Respondent in the

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case?

Appellants, in this case were the 1st, 2nd and 5th Defendants at the Lower Court, who, at least, showed some partial interest in the case at the Lower Court and were representedby Achonolu Esq and later by M.A. Yusuf Esq, who succeeded in getting the trial Court to reverse itself on 11/5/07 and re-opened the case for the Appellants to come in to defend the suit.

The trial Court had earlier foreclosed the Defendants and adjourned the case for judgment on 21/11/06. I had earlier reproduced the warning which the trial Court made, when it granted. Appellants application to re-open the case for them. The warning showed the Appellants would not be indulged again in any further act of indolence or employ of delaying tactics to frustrate the case, hence the order of accelerate hearing, made on the said 11/5/07.

I think having been so indulged by the Court, and the Plaintiffs witnesses recalled and surrendered to the Appellants to cross examine, and the PW3 being taken, partially and case adjourned on 2/7/08, at the instance of the Appellants, for continuation of the cross examination of PW3 on 15/7/08, the Appellants had a duty to be

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vigilant, diligent and dutiful, to follow up their case and be in Court on the said adjourned date 15/7/08 and thereafter to do the case, or to know what transpired in Court on that date.

That is the least to be expected of a defendant, who is serious about a case he prayed the Court for special indulgence to defend, after forefeiting his earlier opportunities. I must concede however that the trial Court too did not appear to be committed or alive to the duty or need to issue hearing notice(s) to parties who were absent in Court, when he made orders for adjournments. That is a cardinal requirement of rules of fair hearing. See the case of International Bank Plc Vs Onwuka (2009)8 NWLR (Pt.1144) 462 at 472 473; Odiong Vs Offiong (2011)16 NWLR (Pt.1272)11 at 119; Ene Vs Arikpo (2010)10 NWLR (Pt.1203)477 at 515 516, all cited by Appellants.
But the need for issuance of hearing notices to parties is defeated, where a party and/or his Counsel is in Court and knows the next adjournment date of the case. He is expected to be in Court on the said date the matter was adjourned, to do his case, or know of further development in the case. In the

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case of Attorney General of Rivers State Vs Ude (2007)17 NWLR (Pt.1008) 456 (cited by the Respondent), the Supreme Court said:-
“By the undisputed facts of this case, the Respondents were aware of the adjourned date and indeed the respondents asked for and were granted adjournment to continue with their case. The respondents deliberately neglected and abandoned their defences to the action, they have themselves to blame as the Court of Appeal stated. In my view, the Court of Appeal acted erroneously when they held that the respondents were under the circumstances entitled to be told of the adjourned date. They refused to appear in Court and had failed to find out what was happening in Court. They simply abandoned their case and accordingly, respondents were not entitled to fresh hearing date under the circumstances.”

Failure of Appellants and or their Counsel to be in Court on 15/7/08 (the date they caused their matter to be adjourned to continue with their Cross examination of PW3) or the subsequent dates they depsed to in paragraph 4 of the affidavit. Page 4 of the Supplementary Record, appeared to cut them off the developments in the

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case, until judgment was delivered against them on 12/12/08. Through-out the arguments of the Appellants, they failed to state why they were absent in Court on 15/7/2008 or why they failed to find out what transpired in the Court on that date.

I believe, if they had shown the slightest respect to the trial Court, particularly, to the earlier warning of that Court, which led to the order of accelerated hearing, the Appellants would not have lost out of the case or abandoned it, to warrant the 2nd fore-closure of their case and the subsequent judgment entered in their absence. Appellants and their Counsel cannot claim any justification for abandoning the case and their cross examination of PW3 from 15/7/08 to 26/11/2008, when their case was closed, and on 12/12/08, when judgment was given, in their absence, except they can explain satisfactorily why they did not appear on 15/7/08 and beyond, to continue with their defence, and how the trial Court denied them a hearing or opportunity to be heard.

Appellants cannot hide under the claim of denial of fair hearing to do mischief by deliberately defying the Court, and frustrating the hearing and/or

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conclusion of a case, commenced since 1998, by employing dangerous dilatory and evasive tactics, wanting to invoke and rely on the plea of breach of right of fair hearing, on being descended upon. One cannot complain of denial of fair hearing, when he aborted every opportunity given to him to state his case or to be heard. See the case of Kaduna iles Ltd Vs Umar (1994)1 NWLR (Pt.319) 143 at 159, where it was held:
“Where a party to a suit has been accorded a reasonable opportunity of being heard in the manner prescribed under the law, and for no satisfactory explanation, it fails or neglects to attend the sitting of the Court, the party cannot thereafter be heard to complain of lack of fair hearing. 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 other parties to ransom? Should the business of the Court be dictated by the whims and caprices of any party? I think not…”
See also Newswatch Communication Ltd Vs Atta (2006)7 MJSC 38 at 95; (2006)12 NWLR (Pt.993)144; (2006) LPELR 1986 SC, where the Apex Court said:

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It is the duty of the Court to create then atmosphere for a fair hearing of a case but it is not the duty of the Court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turn round to accuse the Court of denying him fair hearing. That is not fair to the Court, and Counsel must not instigate his client to accuse the Court of denying him fair hearing. A trial Judge can indulge a party in the judicial process for some time but not for all times. A trial Judge has the right to withdraw his indulgence at the point the fair hearing principle will be compromised, compounded or will not really be fair as it affects the opposing party” Per Tobi JSC.
I think in this case that Appellants appeared to have demonstrated consistent lack of interest to defend, as shown in delays to file memorandum of appearance and defence or come to Court to defend it, and the case having been adjourned for judgment but later aborted on the plea of the Appellants, to enable them take steps to

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defend, but again abandoning the defence, and defying the Court order, I do not think Appellants are right to complain of denial of fair hearing, when the Court ran out of patience to further indulge them in their dilatory games. The Respondent too had a right to fair hearing of this old case, to a conclusion.
A party who fails to utilize opportunity of prosecuting his case, cannot turn round to blame the Court for not being given fair hearing. GTB PLC Vs FADCO INDUSTRIES Nig. LTD. & Anor (2013) LPELR 21411 (CA).
In the case of F.H.A. Vs Kalejaiye (2011) All FWLR (Pt.562)1633, ratio 8, it was held:
“The role of the Court in the adjudication is to maintain a level playing field for the parties by offering them equal opportunity, to present their case or grievances; if they so wish. Once the opportunity is offered, it is the duty of a party to litigation or his Counsel to utilize same in accordance with the rules of procedure and substantive law. Where, however, he or his Counsel fails or neglects to utilize the opportunity so offered, he cannot turn round to blame the Court for the loss of the opportunity as the Court will not allow a

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party to hold the opponent or the Court to ransom under the guise of the desire to protect the principles of fair hearing.

I therefore resolve the issue against the Appellants and dismiss the appeal for lacking in merit.

Appellants shall pay the cost of this appeal assessed at Forty Thousand Naira Only (40,000.00) to the Respondent.

Other Citations: (2016)LCN/8730(CA)