⦿ CASE SUMMARY OF:
Chief Essien Bassey Essien & Ors v. Felix Okon Edet & Ors (2003) – CA
by NSA PaulPipAr
– hearing notices;
– fair hearing;
1. Chief Essien Bassey Essien;
2. Okon Edet Effiong;
3. Efiok Essien Ekanem;
4. Chief Okon Edem Etim;
5. Ita Okon Effiong (For themselves and as representing Nna Enin village, Uruan.)
1. Felix Okon Edet;
2. Okon Effiong Ekpo;
3. Effiong Okon Asuquo;
4. Okon Inyang Effiong;
5. Chief Etim Dutt (For themselves and as representing Anakpa village, Uruan).
Court of Appeal
⦿ LEAD JUDGEMENT DELIVERED BY:
Simeon Osuji Ekpe, JCA
* FOR THE APPELLANT
– Chief G. A. Udousoro;
* FOR THE RESPONDENT
– Chief Emmanuel Edet;
⦿ FACT (as relating to the issues)
This is an appeal from the judgment of Umoren, J. (as he then was) in suit No. HU/30/80, filed at the High Court, Uyo in Akwa Ibom State and delivered on the 20th of January, 1997 at Ikot Ekpene High Court of the same State. The plaintiffs in a representative capacity had sued the original defendants on record and claimed jointly and severally the following reliefs in the writ of summons: “(1) N50,000.00 (fifty thousand Naira) being special and general damages for trespass. (2) A perpetual injunction restraining the defendants, their agents and assigns from committing further acts of trespass on the said land belonging to the plaintiffs”.
In paragraph 25 of the statement of claim, the plaintiffs claimed the following reliefs: “Wherefore, the plaintiffs claim against the defendants as follows: (a) A declaration that the plaintiffs are entitled to the customary or statutory certificate of occupancy over the land in dispute. (b) N50,000.00 being general damages for trespass. (c) A perpetual injunction restraining the defendants, their agents and assigns from committing further acts of trespass on the land in dispute”.
The defendants filed their statement of defence and counter-claim. In paragraph 22 thereof the defendants counterclaimed for (1) a declaration of title to the customary right of occupancy over the two parcels of the land in dispute with a survey plan No. RIM/10420 (LD) dated 14/3/85, (2) N100,000.00 (One hundred thousand Naira) being general damages for trespass, (3) forfeiture of the lands verged yellow and green in the plaintiffs plan granted to the plaintiffs under native law and custom, (4) perpetual injunction.
In the trial that followed, the plaintiffs called three witnesses and tendered their survey plan No. AQ 26/83 (LD) dated 13/6/83, through PW1 without objection as exhibit ‘A’ and closed their case. After the close of the case for the plaintiffs, the defendants opened their defence and called two witnesses. The second defence witness (DW2) was still giving evidence-in-chief when the defendants filed a motion for amendment of the statement of defence and the counterclaim. At that juncture, the learned trial Judge was transferred to Ikot Ekpene Judicial Division and the hearing of the case suffered a temporary set back.
After the learned State Chief Judge had granted the learned trial Judge an extension of jurisdiction to continue with the case at Ikot Ekpene High Court, the case was resumed before Umoren, J., the trial Judge, at Ikot Ekpene High Court on 1/7/96. The record of proceedings of that day’s hearing at pages 181 to 182 shows that some of the plaintiffs with their counsel were present, while the defendants and their counsel were absent. Dr. A. Essien of counsel for the defendants wrote for an adjournment. The learned counsel for the plaintiffs stoutly opposed the application for adjournment and urged the trial Judge to consider the case of the defendants as abandoned and closed and to allow him a short date to address the court.
On 9/7/96, when the case came up again as previously adjourned, the plaintiffs except the 3rd plaintiff were present while all the defendants and their counsel were absent. The learned trial Judge took the address of the plaintiffs’ counsel and adjourned the case to 25/11/96 for judgment which was eventually delivered on 20/1/97 by the learned trial Judge. In the reserved judgment, the learned trial Judge considered the case of the plaintiffs and that of the defendants as so far presented by DW1 and DW2 before the defence was deemed as abandoned and closed. The learned trial Judge found for the plaintiffs and entered judgment for them. He accordingly declared that the plaintiffs were entitled to the customary right of occupancy over the pieces or parcels of the land in dispute delineated and verged pink and yellow in the plaintiffs’ plan. He awarded the sum of N5,000.00 as general damages and granted perpetual injunction against the defendants as claimed in the statement of claim. He also assessed and awarded costs of N2,000.00 in favour of the plaintiffs.
Aggrieved by the decision of the learned trial Judge, the defendants have appealed to this court.
1. Were the appellants given a fair hearing in the case when they were not served with the hearing notices especially as there was change of venue for ‘the hearing of the case from Uyo High Court sitting at Uyo to Ikot Ekpene High Court sitting at Ikot Ekpene’, and was it proper in the circumstances for the trial court to close the case in their absence for the appellants.
2. Whether the learned trial Judge was right in giving judgment for the respondents.
3. Whether the claim for declaration of title in the statement of claim which was not claimed in the writ of summons could supercede the writ without being amended to include the claim for declaration for customary or statutory certificate of occupancy as asked for by the respondents.
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANTS BUT AGAINST THE RESPONDENTS.
i. The fundamental question is, given the scenario and circumstances under which the proceedings were conducted, can it be said that the appellants were given a fair hearing by the learned trial Judge. Without any hesitation, I will answer the question in the negative. I shall elaborate here. Firstly, on 19/4/95, the appellants filed a motion on notice for amendment of the statement of defence and counterclaim in the suit, vide pages 158 to 178 of the record of proceedings. The motion was pending in the court below before the appellants’ case was ‘terminated’ or closed by the learned trial Judge. By closing the case of the appellants, the learned trial Judge also foreclosed the hearing of the said motion. A motion on notice for amendment of the statement of defence and counter-claim like the one filed by the appellants in the instant case cannot be treated as trivial or inconsequential. The learned trial Judge did not advert his attention to it. It is an elementary and fundamental principle of our administration of justice for the courts to hear all motions or applications properly brought before them.
ii. Another aspect of the proceedings in the court below which impinges on lack of fair hearing is in respect of nonservice of the hearing notices on the appellants or their counsel as ordered by the learned trial Judge, before hearing the address of the respondents’ counsel. On 1/7/96, when the learned trial Judge peremptorily closed the case of the appellants in their absence and adjourned to 9/7/96 for address by counsel for the respondents, he also ordered for service of hearing notices on the appellants or their counsel. When the court resumed on 9/7/96 to take the address, neither the appellants nor their counsel was present in court. Despite their absence, the learned trial Judge took the address of the learned counsel to the respondents without ensuring that the appellants and/or their counsel were served with the hearing notices as ordered by him. In any case, there is nothing on record to show that the appellants and/or their counsel were properly served with the hearing notices ordered by the learned trial Judge for hearing on 9/7/96. Undoubtedly, it was the duty of the learned trial Judge to examine its records to make sure whether the hearing notices were duly or properly served on the appellants and/or their counsel who were absent, before proceeding with hearing the address by the learned counsel for the respondents.
IN VIEW OF THE CONCLUSION, the Court of Appeal reached on issue No.1, It did not consider it necessary to discuss issues Nos. 2 and 3 as no practical purpose will be achieved thereby. It will only amount to mere academic exercise to deliberate on the issues.
⦿ SOME PROVISION(S)
⦿ RELEVANT CASE(S)
⦿ CASE(S) RELATED
Ude & Ors. v. A. -G., Rivers State (2002) 4 NWLR (Pt.756) 66;
⦿ NOTABLE DICTA
The principle of fair hearing not only demands but also dictates that the parties in a case must be heard on the case formulated and presented by them. It is only then that the concept of fair hearing will have any real meaning. – Ekpe, JCA. Essien v. Edet (2003)
Hearing notice as an important process of the court is a fundamental requirement in our adversary system of adjudication. It is an established principle of law that where service of hearing notice is required or called for, any proceedings conducted without due service of it, is rendered null and void. Non service of hearing notice is a fundamental vice, which vitiates the proceedings. In other words, where proceedings (except ex parte proceedings) are conducted when no hearing notice has been served on a party who should have been necessarily served, the whole proceedings are rendered null and void, no matter how well conducted they were because the court lacks jurisdiction to entertain the matter. – Ekpe, JCA. Essien v. Edet (2003)