"I am however of the considered view that the lower Court missed the point completely by considering the question of the "nonnotification" of the hearing date of 7/4/2011 to the Appellant as one of ignorance per se instead of considering the said "ignorance" in the context of or against the background of the non-sitting of the Court on 3/4/2011 and on which date it cannot be said that the matter was adjourned on record whether or not the parties were present. All that I am trying to say is that if the lower Court had borne in mind the fact that further proceeding in the matter, was not truncated or cut short by the Appellant or anything attributable to the Appellant on 3/4/2011, the said Court would have seen the need or come to the conclusion that it ought to have ordered the issuance and service of hearing notices on the parties in respect of the adjourned date of the matter from 3/4/2011, and to have thereby found substance in the "ignorance" of the hearing date of 7/4/2011 as set up by the Appellant.
There are many decisions of this Court dealing with the purpose of hearing notice and when there is need to order the issuance and service of hearing notice as well as the consequences of not ordering the issuance and service of hearing notice when there is need to do so. See in this regard the case of ASUQUO V. ESHIET (2008) All FWLR (Pt. 401) 970 at 983-984, whereat this Court per Omage, JCA; said thus:
"When any of the parties to a suit is absent from Court and has not been previously served a notice of the date of hearing or commencement of hearing of the suit, the Court is under obligation to make an order for the issue of a hearing notice on such a party. The issue of such a hearing notice is at the discretion of the Court. Surely the exercise of a discretion not to issue a hearing notice will depend on evidence of knowledge that the absent party is aware of the hearing date and has neglected to be present in Court. Where there is no evidence of the knowledge of the hearing date by the absent party, there is a duty on the trial Court to issue a hearing notice in compliance with the need for service of the rule of audi alteram partem." See also the case of INTAGRO LTD V. BASSEY (2008) All FWLR (Pt. 419) 450 at 452 - 453(CA) whereat this Court per Owoade, JCA, said thus:
"The purpose of serving hearing notice is to give notice to the parties. A party can only diligently prosecute his case if he has notice of the case or if he is aware of it. Hearing notice is the only legal means and procedure to get a party to appear in Court. The service of the hearing notice on a party informing him of the hearing date is very fundamental to the administration of justice. It is the service of the hearing notice that confers on the trial court the jurisdiction to entertain the matter. When a matter comes up before a trial Court, it is its duty to fully satisfy that a party to the case was duly served and is aware that the matter is coming up before the Court that day.
It is not for the trial court to assume that the party is aware of the suit when in the first place, it had not issued any hearing notice to the party. The trial judge is entitled to look into the Court's record to satisfy himself whether there is proof of service of any process on the parties or their legal representatives before embarking on several adjournments which can lead to the unjust dismissal of the appellant's case."
I have hereinbefore re-produced the note of proceeding before the lower Court on 7/2011. In the light of the cases cited above, I simply see no basis for the expectation of the lower Court that the Appellant's counsel should have written the said Court (apparently to explain his absence) when the said Court could not even state when the said counsel or Appellant were given notice of the hearing date of 7/4/2011, when it delivered judgment in favour of the Respondent (whose deposition in paragraph 17 of his counter affidavit finds no support in the note of proceeding of 7/4/2011); and at the prompting as it were of Respondent's counsel.
I am of the considered view that if the lower Court had appreciated the fact that it had no evidence before it that hearing notice in respect of the hearing date of 7/4/2011 issued and was served on the Appellant, it should have further adjourned the matter on 7/4/2011 to a future day and to have ordered the issuance and service of hearing notice on the Appellant. This would have been in keeping with the words of wisdom uttered by this Court in the case of DAWODU V. OLOGUNDUDU (1986) 4 NWLR (Pt. 33) 104 per Nnaemeka-Agu, JCA; (as he then was) and which go thus:
"Before I conclude, I should observe that the learned Judge obviously acted out of exasperation for the constant adjournments of the proceedings. Having regard to the constant out-cry against delays in the trial of cases and the consequent congestion of our Courts, this is understandable. But, in showing his disapproval of the situation, he should have done well to remember that certain features of our adversary system of administration of justice carry with them some implications of inevitable delay. The audi alteram partem rule (which, together with the rule nemo judex in sua causa form the twin pillars upon which fair hearing is based), carries with it the need to give to all the parties due notice of hearing and the opportunity to be heard and to cross-examine every witness called by one's adversaries.
Generally, a breach of the rule, save in a few statutory exceptions, will invalidate the proceedings because it is breach of not only the right to fair hearing entrenched in our Constitution but also a breach of the rule of natural justice. This is why I am surprised that the learned judge also dismissed the appellant's application that all the witnesses who had testified before he came into the hearing be recalled for cross-examination. The Judge should have granted the application as the cross-examination of those witnesses was necessary, assuming there was a valid trial, if the Judge had to do justice between the parties. See Tabbaa v. Lababedi & Anor. (1974) 1 A.N.L.R. Pt. 1) 400.
Indeed, I cannot see on what rule or to what purpose the learned Judge had to force the appellant into the witness box to give evidence in his defence when he had not the opportunity of hearing and cross-examining the respondents and their witnesses. In my opinion, in the circumstances that arose in this case the learned Judge had the duty to balance the need for speedy trial with the dictates of fair hearing guaranteed by our Constitution and inherent in our system of administration of justice. It was a grave error to have sacrificed those features on the altar of speed. xxxx"
The settled position of the law as enunciated or articulated in all the case that have been cited hereinbefore is to the effect that the nonservice of hearing notice in respect of the hearing date of a matter or proceeding in a matter where it is supposed to be issued and served, is a breach of the fundamental right of the affected party to fair hearing and is by itself alone sufficient to void or nullify the proceedings from that point onwards and should readily result in a Court setting aside a default judgment. See in particular the case of MOHAMMED V. HUSSEINI (supra) as well as OKON V. ADIGWE (2011) LPELR - 4528 (CA) where this Court per Nwodo, JCA, (of blessed memory) said thus:
"The principle of fair hearing lies in the procedure followed in the determination of the case not the question of how correct is the decision. It is the violation of that right to be heard or opportunity to be heard that its breach will amount to breach of fundamental right to fair hearing. See VICTINO FIXED ODDS Ltd v. OJO (2010) 8 NWLR Part 1197 SC 486. In the instance circumstance the appellant was not given an opportunity to be heard, he was not served with hearing notice. Consequently, failure to serve a hearing notice when the service of hearing notice was required rendered the entire proceedings and the decision of the trial Court against the appellant null and void. It is a manifestation of violation of principle of fair hearing. xxxxx."
The non-giving of effect to the breach of the fundamental right to fair hearing of the Appellant occasioned by the non-issuance and service on it, of the hearing notice in respect of the proceedings of 7/4/2011, in my considered view tantamount to an unjudicial and injudicious exercise of the lower Court's discretion, inasmuch as a Court cannot properly exercise its discretion when there is an established violation of a party's right to fair hearing than to nullify the proceedings in question. In other words, a Court in the exercise of its discretion cannot perpetuate or keep alive an established breach of fair hearing."
Per LOKULO-SODIPE, J.C.A. SKYE BANK v. UWALEKE CITATION: (2018) LPELR-45016(CA)
