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‘Court Can’t Adopt Written Address Of Counsel Present In Court’

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FACTS

The 1st Respondent, as Applicant before the Kano State High Court (hereafter referred to as the lower Court) filed an action before that Court, seeking the enforcement of his fundamental human rights against the Applicant and 2nd Respondent. He also sought an order of restraint against them and the sum of N4 million for lodging a baseless complaint upon which the 2nd Respondent violated his privacy which put him in a state of embarrassment, pains and psychological trauma.

His complaint, as contained in his affidavit in support of the application, is that he bought a compressor from one Anas, now deceased, for the sum of N3.5 million. To his surprise, about four years later, and after the death of Anas, operatives of the 2nd Respondent came to his house in the morning, followed him to his bedroom to dress, having just taken a bath, and whisked him to their office, where he was detained for one day and one night, on the allegation that he connived with the said Anas to sell the Appellant’s compressor. He denied the offence, finding it strange that no charge was brought all the years, only for the Appellant to wait for the death of Anas to make the allegation. He had been asked by the 2nd Respondent to report at their office. The Appellant and 2nd Respondent were bent on forcing him to admit liability for a crime he knew nothing about. He feared, by their threats of further detention, of the violation of his fundamental human rights to personal liberty.

The Appellant, in response, filed a Motion before the lower Court, for leave to file and serve out of time his Memorandum of Conditional Appearance, Notice of Preliminary Objection challenging the jurisdiction of the Court to hear the case, and a Counter Affidavit to the 1st Respondent’s application. He also sought leave to file written addresses in support of the Counter Affidavit and Notice of Preliminary Objection, both of which addresses were exhibited to the application. The 1st Respondent opposed the application. The Court, coram Abdullahi Mahmoud Bayero J, hearing the Appellant’s application, adjourned to 20/3/14 for ruling, with a directive that hearing notice be served on the 2nd Respondent.

The Court, in its ruling delivered as scheduled on 20/3/14, commenced by granting the Appellant’s application seeking extension of time to file its processes. It dismissed the Preliminary Objection and proceeded to a deliberation of the substantive application, granting all the reliefs sought.

Aggrieved, the Appellant filed the instant appeal, containing 15 grounds. The Notice of Appeal is dated 20/5/14 and filed on 27/5/14.

APPELLANT’S ISSUES FOR DETERMINATION

1. Whether the lower Court has the jurisdiction to hear and determine Suit No. K/M669/13.

2. Whether the Appellant was given fair hearing by the lower Court in his bid to present his defence and be heard in respect of Suit No. K/M669/13.

3. Whether the judgment/ruling of the lower Court in Suit No. K/M669/13 is perverse and liable to be set aside.

The Appellant’s Counsel contends that the lower Court was deprived of jurisdiction on two principal grounds, to wit:

(1) The leave of High Court of Justice Kano State was not sought and obtained before the Appellant, who was residing in Katsina State outside the jurisdiction of the lower Court, was served with the originating processes, and

(2) The processes filed and served on the Appellant did not comply with the mandatory provisions of Section 97and 99 of the Sheriff and Civil Process Act.

He contended that all these issues are conditions precedent to the exercise of the jurisdiction of the lower Court and were raised by the Appellant in his Notice of Preliminary Objection and Written Address in support. He submitted that the leave of the lower Court was not sought and obtained as required by Order 5 Rule 6 of the then High Court of Kano State (Civil Procedure) Rules, 1988 before the Appellant was served in Katsina State. The lower Court, he said, used the provision of Order 12 Rule 14 of the High Court of Kano State (Civil Procedure) Rule 1988 to assume jurisdiction, which Order defines out of jurisdiction to mean out of the Federal Republic of Nigeria, to hold that since Katsina State is in Nigeria, leave is not required to serve someone who resides in Katsina State, thereby ignoring the provision of Order 5 Rule 6 which requires leave.

He further submitted that both Orders 12 and 5 of the old Civil Procedure Rules of Kano State make provision for service outside the jurisdiction. Where leave is required before service but such service is not sought and obtained, the Court, he said, is without jurisdiction to hear and determine the matter. He cited the case of Owners of the Mv. Arabella vs. N.A.I.C (2008) 11 NWLR (Part 1097) 182 at 206-207 Paras F-A.

On the second requirement, he argued that the processes served on the Appellant who resides in Katsina State did not comply with the elaborate and mandatory provision of Section 97 and 99 of the Sheriff and Civil Process Act, having not been endorsed that they were to be served outside the jurisdiction of the issuing Court. Further, there was non-compliance with Section 99 of the Sheriff and Civil Process Act, as the appellant residing outside the jurisdiction of the state was supposed to be given a mandatory period of 30 days within which to respond to the processes filed. Non-compliance with these provisions is not a mere irregularity but a fundamental defect that renders the processes incompetent, also affecting the competence of the Court.

Learned Appellant’s Counsel has submitted that the right to fair hearing is a fundamental and constitutional right guaranteed and protected by Section 36 (1) of the 1999 Constitution and any breach of it vitiates the proceedings rendering same null and void and of no effect, citing the cases of Ogbeshe vs Idam (2014) ALL FWLR (Part 428) 992 at 1014 Paras D-E, Victino Fixed Odds vs Ojo (2010)41 NSCQR 688 at 1007 Paras E-G. 1008 Paras B-D and Yusuf vs Illori (2008) 6 NWLR (Part 1083)330 at 351 Paras E-G.

JUDGEMENT

It is indeed true, as submitted by the learned Counsel to the 1st Respondent, that hearing in a suit for the enforcement of one’s fundamental human rights is by affidavit evidence and that in this case, the processes that the Appellant intended to rely upon, were exhibited to the motion for extension of time it filed before the lower Court. It is however clear from the record of the Court, that the fixture for the day in question, was for Ruling on the application and not for its hearing.

Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides:

In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

Where a party, on the date on which a hearing is not scheduled to take place, is not afforded the opportunity, to fully take advantage of the provisions donated to him by the Rules governing the procedure, the hearing, I hold, cannot be said to be fair.

While Order VIII Rules 4 and 5 of the Rules provide that a preliminary objection shall be heard along with the substantive application and that after the dismissal of the objection, the Court can proceed to a hearing of the substantive application, the Rules, however provide the procedure for hearing of the application, as follows:

ORDER XII HEARING OF THE APPLICATION

1. Hearing of the application shall be on the parties written addresses.

2. Oral argument of not more than twenty minutes shall be allowed from each party by the Court on matters not contained in their written addresses provided such matters came to the knowledge of the party after he had filed his written address.

3. When all the parties written addresses have been filed and come up for adoption and either of the parties is absent, the Court shall either on its own motion or upon oral application by the Counsel for the party present, order that the addresses be deemed adopted if the Court is satisfied that all the parties had notice of the date for adoption and a party shall be deemed to have notice of the date for adoption if on the previous date last given, the party or his Counsel was present in Court.

This rule makes it clear that a hearing consists of oral hearing on matters not contained in the party’s written address and on matters that came to the party’s knowledge after he had filed his written address. The party must adopt his written address, except if he is absent, in which event the Court can deem the address duly adopted.

A Court, I hold, is not allowed to circumvent these processes by itself adopting the written address of Counsel who is present in Court.

The Rules do not allow it to do this.

As held by the Supreme Court in the case of Military Governor Lagos State v. Adeyiga (2012) 5 NWLR Part 1293 Page 291 at 319 Para F-H per Adekeye JSC:

The bottom line to the doctrine of fair hearing envisaged by virtue of Section 33 (1) of the 1979 now in pari materia with Section 36 (1) of the 1999 Constitution as applicable in the determination of civil rights and obligation of citizens, is a trial conducted according to all the Legal rules formulated to ensure that justice is done to all the parties. It requires the observance of the twin pillars of the rules of natural justice namely audi alteram partem and nemo judex in causa sua.

A hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his case or call evidence. The right to fair hearing is a question of opportunity of being heard. The right lies in the procedure followed in the determination of a case and not in the correctness of the decision arrived at in a case.

The Court was undoubtedly in error, the parties having not adopted their written addresses, after dismissal of the preliminary objection, to proceed to a deliberation of the application before it. This is more so where a financial relief of no mean amount is sought, as in this case.

Indeed, it has been held in the case of Akinrimisi v Maersk (Nig) Ltd (2013) 10 NWLR Part 1361 Page 73 at 87 Para C, per Ngwuta JSC that:

“It is trite that a matter set down for mention should not be heard on the day it wasn’t fixed for mention, although the parties may agree to request the Court to take the case.”

Thus, even though, in the instant case, the case was adjourned for Ruling and not mention, the same principle applies.

Notwithstanding the fact that the lower Court had undoubted jurisdiction to have entertained the 1st Respondent’s application, as held under issue No. 1, the violation of the Rules, the purpose of which is geared to ensure fair hearing to all parties, has been breached, I hold.

Furthermore, the Appellant’s Counter Affidavit to the 1st Respondent’s application, challenged the facts deposed to by the 1st Respondent with respect to the transaction, the resolution of which could only be resolved by calling oral evidence, I hold. See Ugwu v. PDP (2015) 7 NWLR Part 1459 Page 478 at 499 Para H per Aka’ahs JSC; Mabamije v Otto (2016) 13 NWLR Part 1529 Page 171 at 192-193 Para A-H per Rhodes-Vivour JSC.

The 2nd issue for determination is accordingly resolved in favour of the Appellant.

It is true, as urged by the 1st Respondent’s Counsel that it is not every error that should lead to the reversal of the judgment of the lower Court, where, however, rules of procedure to ensure equal hearing to the parties, is circumvented by the Court, this denial of fair hearing must be redressed.

I do agree with the Appellant’s Counsel that the decision of the lower Court, for the reasons given by me above, is perverse, for which this Court should intervene. This appeal is accordingly allowed. The decision of the lower Court is set aside and this case remitted to the lower Court for a proper hearing of the 1st Respondent’s application.

Representations:

Teryange Anjov For Appellant

And

S. S. Gezawa – 1st Respondent

Idris I. Haruna Principal Legal Officer, EFFC for 2nd Respondent

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