Analysis: Hearing Notice As An Offshoot Of Fair Hearing

By Omoha Otuosoroch

INTRODUCTION

It’s a well known fact that law is the art of what is good and fair (expressed in the Latin maxim: Jus est ar boni et aequit) and those that are saddled with the venerated duties of deciding controversies between partiess are expected to do so, fairly and justly with good human conscience.

The good adage of court as the last hope of a common man has for long become a shibboleth, which we only heard about in stories and can only be rejuvenated and sustained if our law courts and tribunals reclaimed their attributes as temple of Justice; and therefore, start dispensing justice equally, both to the rich and the poor or the affluent and the pauper. In essence, this legal catchphrase must not only exist as a saying but must be given life through practical applications in our law courts to ensure that justice is done to all irrespective of one’s social status.

Fair and just trial can only be achieved if such trial was conducted under the full glares of natural justice, equity and good conscience.

Natural justice demands that a party be heard before the case against him is determined, and the matter must also be entertained by a neutral body or umpire who has no interest to protect in the matter. We lent credence to the above deposition in the case of Chukwuma v. F.R.N. (2011) LPELR – SC. 253/2007 and Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended)

The two pillars of the rules of Natural Justice are (a) Hear the other side (expressed in Audi alteram partem) (b) A person should not be a judge in his own cause (expressed in Nemo judex in causa sua).

The first limb of Natural Justice that envisages; Audi alteram partem is said to be as old as the world itself and according to Professor de Smith in his book Judicial Review of Administrative Action (1973) 3rd edn. P. 135, he rightly opined “that no man to be judged unheard was a precept known to the Greeks, inscribed in ancient times upon images in places where justice was administered, proclaimed in Seneca’s Media, enshrined in the scriptures, mentioned by St. Augustine, embodied in Germanic as well as African proverbs, ascribed in the Year Books to the law of nature, asserted by Coke to be a principle of divine justice.”

This principle of Natural Justice (Audi alteram partem ) portrays that each party to a case must be given a clear, reasonable and adequate notice of the case he is to face and be offered reasonable opportunity to prepare and state his defence in rebuttal of the allegations made against him.

The Audi alteram partem rule should be traced back to the time of Adam and Eve. In the story, when Adam and Eve have eaten of the forbidden fruit which they were forestalled by God from eating, God having prior knowledge of their disobedience, still gave them chance to state their own side of the case, before he went further to punish them. See Genesis 3:11-13. From this, we embraced the well known principle of ‘Fair Hearing’.

The above point was reiterated by Fortescue, J. in the case of R. v. Chancellor of the University of Cambridge (1723) 1 Str. 557. 567; 93 E.R. 698. 704. Where he lucidly declared that: “the objection for want of notice can never be got over. The laws of God and man both gave the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. Adam (said God) where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou shouldest not eat? And the same question was put to Eve also.”

Then the latter limb of natural justice, to wit: “No man can be a judge in his own cause” (expressed in Nemo Judex in Causa sua) simply entails that whoever is bestowed with the sacred duty of deciding disputes between parties should exercise his functions in a spirit free from prejudice and bias, so as to give each party his due according to the law of the land and judges are also enjoined to act reasonably and avoid bias in favour or against any of the parties. In our humble view, our courts should be independent, detached and impartial and this will really help to protect the right of the citizens in seeing that justice is done.

The gravamen of this principle is to uphold fairness and shun all forms of biasness (whether positive or negative) and this in good turn will help to sustain justice for mankind.

In the foreign case of City of London v. Wood (1701) 12 Mod. 669, Chief Justice Holt, profoundly stated that “” .. Far from any extravagancy, for it is a very reasonable and true saying, that if an Act of parliament should ordain that same person should be party and judge it would be a void Act of Parliament.””

The Rationale behind this principle is that once a person sat as a judge in a matter, he has an interest on, no matter how good he may had conducted the case, to the mind of the general public; injustice must have being meted out, either against himself or the other party.

According to Lord Hewart L.C.J. in the case of King v. Sussex Justices, ex. P. McCarthy (1924) 1 k.B. 256. 259 enunciated a well known maxim that: “it is not merely of some importance, but is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.”

Then flowing from the above, the main purpose of law is to do justice, and its well known that the general public is always after justice, hence the adage, “the court is the last hope of the common man”, and to achieve this, judges should always abstain themselves from matters that they have overwhelming interest on.

The principle that a judge must be impartial is accepted in the jurisprudence of every civilized country, and there are no grounds for holding that in this respect, the law of Nigeria differs from the law of England, or is hesitating to follow English decisions. See the case of Obadara &Ors v. President of Ibadan West District Grade D Customary court (1964) 1 All N.L.R. 336 at 344. This principle of law was also domesticated in Nigeria Constitution under Section 36 (1) of the 1999 Constitution of Federal Republic of Nigeria (as amended).

Our discussion in this article is going to revolve around; Hearing Notice as it connotes Audi alteram partem rules and Fair Hearing.

Fair Hearing in this context entails giving equal opportunity to the parties to be heard in the litigation before the court or tribunal. See the case of S.C.E.N v. Nwosu (2008) ALL FWLR (pt. 413) 1399 at p. 1421, Paras E.F. (CA).

In our humble view, for a matter to be fairly tried, the parties involved, are meant to be allowed access to the court, to come and present their case without any form of inhibition or hurdles.

It should also not be forgotten here, that once a party to the suit complained of any inhibition (restriction) obscuring him from the court, then the main purport of fair hearing would have being beaten.

It must be realized that Fair hearing means Fair hearing to the defendant as much as it is fair hearing to the plaintiff. It is a fair hearing to both parties. The court must hold a balance between the contesting parties in applying the principle of fair hearing. In its commonsense, both parties are meant to be treated equally and fairly. See the case of Ojukwu v. Nnoruka (2000) NWLR (Pt 641) Pg 360 Para. F

In Josiah v. The State (1985)1 NWLR (Pt.I) 125 at 141, the court wisely observed that “Justice is not a one-way traffic.” Both parties deserve justice, and none of the parties should be treated as a child of lesser God. (Underlining Mine)

Fair Hearing as an integral part of section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as Amended)

Both common law and our constitution clearly provided for fair hearing which requires that equal opportunity or consideration be given to all parties. This requirement is not breached where a party was afforded the opportunity to be present at the trial to defend himself but he deliberately refused to avail himself of such a chance through his own tardiness as the law does not aid the indolent but the vigilant.

Fair hearing within the provision of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), (hereinafter referred to C.F.R.N) means a trial conducted according to all the Legal Rules formulated to ensure that justice is done to 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. Eshanake vs. Gbinije (2002) 1 NWLR Pt.961 page 228.

For better understanding, I beg to reproduce the said section 36(1) of the 1999 C.F.R.N, which 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 tribunals established by law and constituted in such manner as to secure its independence and impartiality.” (Underlining is mine for emphasis)

Indeed, ‘fair hearing’ in the context of Section 36 of the 1999 Constitution has been held to encompass “the plenitude of Natural Justice in the narrow technical sense of the twin pillars of justice, to wit: Audi alteram partem and Nemo judex in causa sua, as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so. See University of Nigeria Teaching Hospital management Board & another V Hope Chinyelu Nnoli (1994) 10 SCNJ 71; Mohammed V Olawumi & Others (1990) 2 NWLR (Pt. 133) 458 at 485; Nwokoro & Others V Onuma & another (1990) 3 NWLR (Pt. 136) 2 at 31

From the foregoing, it won’t be frivolous or obsolete, to argue that once a party is being deprived fair hearing in his case that the decision of the court in that stance will always be futile, no matter how well such proceeding was conducted.

In the Nigeria case of Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550, Oputa JSC observed that the crux of the rule is “God has given you two ears hear both sides.” From the foregoing and in consonance with our constitution the concept of fair hearing is therefore not only a common law requirement in Nigeria but also a statutory and a constitutional requirement. In other words, the Rules of natural justice must be observed in any adjudication process by any court or tribunal established by law.

Then reasoning with an eagle eye, it would be pertinent to note that fair hearing is a hearing which is fair to all the parties in the suit, by giving each one an opportunity to be heard, whether the party be the plaintiff, the defendant, the prosecution or the defendant. What is paramount and pivotal is that the party who decides to be a recalcitrant defaulting party should be served with hearing notice at each stage in the proceedings that he is absent from court and prove of service recorded before court proceeds with the case. This is to avert the situation where a defendant who decides to delay/frustrate proceedings deliberately by not appearing in court after entering appearance will raise the issue that he was not heard. Once there is evidence of service, the absence of the party served will be regarded as amounting to a waiver of his right or indolence which cannot amount to denial of fair hearing.

In conclusion, a trial conducted in breach of fair hearing vitiates such proceedings, rendering same null and void; not minding, how well such trial was conducted. See the case of Idakwo v. Ejiga ( 2002) 12 MJSC 81 and Samba Petroleum Ltd. v. IMB Plc. (2010) 5-7 (pt. 1) MJSC. Hence, for a trial to be fair, the parties must be allowed to make their case or defence in the matter.

When Hearing Notice shall turned Fundamental Tool in the Court of Law

The law is trite, that all the parties in a suit should be given equal opportunities to present their case either in person or through their counsel, and any inhibition on any of the parties, obscuring him from attending the full court proceedings, which was masterminded by the court or the other party, will always render the whole trial null and liable to be struck out.

The intents and purposes of this principle is that all the parties should be carried along in course of the proceedings, and logically when any of the parties is absent in court at a slated date for the matter, what the law demands, is that the other party should pick a new date and also applied that the court should cause a Hearing Notice to be served on the absent party. This is always applicable in both criminal and civil matters, as it’s always a notice issued by the court informing an absent party or his counsel about the adjourned date.

It will be pertinent to state here that Courts are enjoined to ensure that hearing notices are issued on absent parties before embarking in deciding cases instituted before them. Bamgboye vs. UNILORIN (1999) 10 NWLR Pt.622 page 290; Awoniyi vs. The Registered Trustees of the Rosicrucian Order; Amorc (Nig.) (2000) 6 SC Pt.1 page 103.

Hon. KALIO, JCA in the case of ADEGBUYI v. A.P.C. & ORS (2013) LPELR-22799 (CA) 28 glaringly stated that: “A legal battle is not a guerilla war where anything goes. It is not a conventional warfare either where ambushment of the enemy is allowed. It is a battle where the gladiators come out in the open with all the implements or weapons of battle in full display before the opponent. Whether the opponent is a Goliath or a David, he knows exactly the weapons carried by his adversary. Parties in a legal battle are expected to know what exactly they are to meet in Court. That is why there are pleadings. They are also expected to know the expected date of battle. That is why hearing notices are an integral component of the legal battle.”” The law is overtly clear here that every party ought to know the date of the Legal battle, and if he is not aware of the battle through no fault of his, then it’s a right deposition to say that such battle is tantamount to nullity and liable to be struck out. For the battle could not have been won behind him. (Underlining Mine)

A hearing notice has been defined as a process by which a party to proceedings is notified of the date the case has been fixed in Court, where he is not otherwise aware of such date. Therefore, service of hearing notice is imperative where a party is not present in Court or duly represented; impliedly, once a party or his counsel appeared in court on a day, the matter was adjourned, then there will be no duty or obligation in law, requiring the court to still put the same party on notice or to remind him of the slated date. FOLORUNSHO v. SHALOUB (1994) 3 NWLR (Pt. 333) 413 at 430, SO MAI SONKA CO. (NIG.) LTD v. ADZEGE (2001) 9 NWLR (Pt. 718) 312 and MADUEKE v. MADUEKE (2011) LPELR (4532) 1 at 22-23

Flowing from the above, 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 purpose of serving such 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. See the case of INTAGRO LTD V. BASSEY (2008) All FWLR (Pt. 419) 450 at 452 – 453(CA) and ASUQUO V. ESHIET (2008) All FWLR (Pt. 401) 970 at 983-984

By way of prolegomenon, the law is that a hearing notice is the only means of getting a party to appear in Court. Therefore the issuance of hearing notice from day to day on the absent party is imperative. The consequence of non-service of the hearing notice is that the entire proceedings, no matter how well conducted would be vitiated. This is the prescriptible effect of the right enshrined in both the common law principle of Audi alteram partem and the constitutional right to fair hearing enshrined in Section 36 (1) C.F.R.N. See generally DARMA v. ECOBANK (2017) LPELR (41663) 1 at 35-36 (SC).

The service of hearing notice is an essential aspect of our procedural law. It is a jurisdictional issue and a condition precedent to the competence of a Court to assume jurisdiction and adjudicate over the rights of the litigants in the matter. We won’t forget in haste that jurisdiction is a threshold and terra firma upon which a court is conferred with power to adjudicate a matter. See the following cases AKINMOSIN vs. MAKINDE (2012) LPELR (19686) 1 (CA), FIRST BANK v. UDEOZO (2017) LEPELR (43263) 1 at 12-15 and DARMA v. ECOBANK (2017) 9 NWLR (Pt. 1571) 480 at 504.

In ACHUZIA v. OGBOMAH (2017) LPELR (40050) 1 at 28, the apex Court in their erudite view held as follows: “The law is trite that a Court should always put a party on notice of date of its adjournment of any matter by sending hearing notice to him once he was not in Court or represented on a given previous date.” See also A-G RIVERS STATE v. UDE (2006) 6-7 SC 54, IMMINENT NIGERIA COMPANY v. PRUDENTIAL CO-OPERATIVE MICRO-FIANCE BANK (2014) LPELR (22700) 1 at 33-34 and NWAKAJI vs. OSAROLUKA (2014) LPELR (22677) 1 (CA).

In the case of Emmakpor v. Ukavbe (1975) 9 NSCC 435 it was held that the failure to notify a party of the date slated for hearing of his matter is a fundamental omission which entitles him to have an order setting aside the judgment on the ground that the condition precedent to the exercise of jurisdiction had not been fulfilled,

The service of hearing notice is a rudimentary and hornbook procedure since the issue of service occupies a pre-eminent position in the adjudicatory process and goes to the very root of the exercise of judicial powers and judicialism. Any proceedings conducted where service had not been effected on a party who is entitled to a hearing amounts to a violation of the right of fair hearing. We take umbrage for this in the pertinacious elucidation of Nnaemeka-Agu, JSC( of blessed memory) in KOTOYE v. C.B.N. (1989) 1 NWLR (Pt. 98) 419 at 448,

Forgive me for being circular and repetitive, but repetition helps to drive home the point. So though it may be prolix, but I reiterate that the essence of service of hearing notice on a party is to intimate him of the hearing date which is very fundamental to the administration of justice since it confers on the trial Court the jurisdiction to entertain the matter. Failure to notify the party of the hearing of the matter renders the proceedings null and void as the Court lacks the jurisdiction to entertain the matter. See ESSIEN v. EDET (2004) 5 NWLR (Pt. 867) 519, BADA v. ATUNBI (2011) LPELR (9265) 1 at 11-14 and COMPAGNIE GENERALE DE GEOPHYSIQUE NIG LTD v. AMINU (2015) LPELR (24463) 1 at 19-20

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.

It is a trite principle of law that failure to cause a hearing notice to be served on the other party was an infringement of his fundamental right of fair hearing, as provided for in Section 36 of the Constitution 1999, and that it renders the order and judgment of the court as a nullity and liable to be struck out, see the case of Credit Alliance Finance service Ltd v. Mallah (1998) 10 NWLR (Pt 569) 341, at 350-357, and Uslkaro v. Itsekiri (1991) 22 NSCC (Pt. 1) 281.

In the case of Habib Nigeria Bank Ltd v. Wahab Opomulero Ors (2000) 15 NWLR (Pt. 690) page 315 where the court nibbed the bud on the head, when they lucidly stated that “ “the law is settled that service activates the jurisdiction of the Court, sessions held by the Court behind any of the parties in litigation will be rendered null and void if it is shown that the party was not served hearing Notice of the session.” The intents and purposes of this is just to avoid deciding and settling a matter at the back of a party whose interest is to be affected by the outcome of the decision, leaving the person with no other option, than that of the proverbial Cock that said that he will abide by whatever the other animals agreed on. (underlining mine)

OLORUNYOLEMI & ANOR v. AKHAGBE (2010) LPELR-2597 (SC) 12-13, MUKHTAR, JSC (Later CJN) held as follows: “The fact that a party was in Court on the day a matter is slated to come up is not necessarily a confirmation that the other party was actually served with the hearing notice. There must be actual proof of service on the necessary parties, i.e. the evidence of receipt vide signature of the party personally or his counsel, or an affidavit of service sworn to by the person who effected the service.” To our humble view, the court should always see it as a duty to serve a party who was not present as at the time the matter was adjourned with hearing notice, because failure to do this, will always make the absent party unaware of the slated date, and will also hinder him from preparing.

The purpose of service of hearing notice is to notify the parties of the pendency and date fixed for the case in Court. It is trite law that failure to issue and serve hearing notice on a party where one is required renders the proceedings conducted in his absence a nullity and liable to be set aside, not minding how well the proceeding was conducted. See APEH & ORS V. PDP & ORS (2016) LPELR – 40726 (SC) AT 22 – 23 (D – E). ACHUZIA V. OGBOMAH (2016) LPELR – 40050 (SC) AT 29 (B – D), DAHUWA V. ADENIRAN (2003) 17 NWLR (PT. 849) 376; LPELR – 10368 (CA) AT 9 (D – F).

Failure to serve a hearing notice where the service of hearing notice is required renders null and void any order made against the party who should have been served with the process. See the case of Madukolu v. Nkemdilim (1962) 2 SCNLR 31. Where a court adjourns a case beyond a date when the litigants have notice of the hearing of the case, the court has a duty to notify the parties of the subsequent adjournment.

In SALU v. EGEIBON (1994) 6 NWLR (Pt. 348) 23 at 44, Wali, JSC stated: “It has also to be remembered that denial of fair hearing was a breach of one of the rules of natural justice, that is, the requirement that a party must be given a fair hearing. The consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void. See Adigun v. Attorney-General of Oyo State (1987) 1 NWLR (PT. 53) 678. If a principle of natural justice is violated, it does not matter whether if the proper thing has been done, the decision would have been the same; the proceeding will be null and void. In other words, if the principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.

Furthermore, the purpose of service of hearing notice is in essence, to give notice to the parties. The question then may be asked; what is the essence of service of hearing notice on a party who is already on notice? The simple answer is none. This is more so, in a case where an adjournment date has not been fixed in the absence of or behind the back of such a party. Indeed, such a party, stricto senso, does not require the service of a fresh hearing notice and in all fairness, should not expect one, as it will be totally uncalled for. Thus, where a party in a suit has knowledge and is aware of an adjournment date or can be fixed with such knowledge, if such a party decides to be absent and inexcusably, too, on the stated day, the obvious inference to be drawn from that course of action, is that the party does not intend to contest the case at all or continue with the same any longer, He has backed out, stepped down, thrown in the towel or has abandoned it. See the case of MR. ONIGHA OGAR ONAH V. CHIEF (SIR) LINUS E. OKOM (2011) LPELR-CA/C/22/2009″

In conclusion, it will be pertinent to note that in the case of BANGARI v. DANBIYU (2013) LPELR-CA/J/206/2006 that it was unanimously stated that “Where a party is in Court and a case adjourned to another date the service of hearing notice on such a party becomes unnecessary. See Fatokun V. Somade (2003) 1 NWLR (pt. 802) 431 at 447 F – H, where it was lucidly stated that; Where however, the Court could not sit or the party was not in Court on the date of adjournment, the service of hearing notice becomes necessary.”But a party who has been afforded the opportunity to put across his defence and who fails to take advantage of such opportunity cannot later turn around to complain that he was denied a right to fair hearing.”

CONCLUSION:

The importance of hearing notice cannot be overstated; each party in a suit, deserved to be informed of the matters pending against them. Fair hearing should also be given to all parties, both the rich and the poor. No man should justice be denied. Garba v. University of Maiduguri (1986) 1 NWLR (Pt. 18) 550, Oputa JSC observed that the crux of the rule is “God has given you two ears, hear both sides.” But if a party deploys to play on the court, by not diligently prosecuting his case or relent in establishing his defence as the case may be. The best thing is for the court to continue the proceedings without him, at which point, judgment may be entered against him (known as judgment in default of appearance or pleading)

It’s pertinent to note here, that the law does not obviate a party who decides to delay/frustrate proceedings deliberately by not appearing in court after entering appearance to start raising the issue that he was not heard. Once there is a service of hearing notice, the absence of the party served, will be regarded as amounting to a waiver of his right or indolence which cannot amount to denial of fair hearing.

This Article is written by Omoha Otuosorochi Junior, a 400 level law student in Ebonyi state University, Abakaliki, Ebonyi State.

A life Intern @ St. Sen solicitors of No. 8 old Enugu Road Kpirikpiri Abakaliki Ebonyi State.