By Ebun-Olu Adegboruwa, SAN
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INTRODUCTION
The history of human rights dates back to creation itself being part of the inalienable heritage of mankind. The birth of a person presumes his right to life and to continue to live. So long as he is alive, he should be allowed to speak and to have his cause heard, to defend himself, to move around, to associate with other people, to aspire to develop himself, acquire and own property and desire to develop his potential to the maximum extent permitted by law. The right to fair hearing is in its own special class partly because it defines the individual and the parameters of his existence. He is entitled to be heard in any matter that concerns him or where his rights and obligations are to be determined. In the traditional parlance it is said that you cannot shave a person’s head in his absence or else the process would amount to deception. The head being the most important part of the human body, the person must be available for the head to be shaved. It will result in a nullity because it is either the person’s head was not the one shaved or no head was shaved at all. The right to fair hearing is so basic and fundamental that any proceedings conducted in breach of it is usually considered to be irredeemable illegality, no matter its gravity, excellence or necessity. The many branches of this fundamental right are almost inexhaustible. The case of Osumuo v Udeaja highlights the primacy of this special class of human right, being one of the foundations of adjudication, even though there are complaints about the effect of strict adherence to this ancient principle to our adjudicatory system, especially in the area of delays being experienced on account of its application both in the regular court and in quasi-judicial proceedings. In most cases, the adjudicator must insist on ensuring that the person concerned is adequately and definitely notified in order to avoid the proceedings being voided for non-compliance. Many have attributed this as being responsible partly though, for the elastic process of administration of justice in the country but this is not a process that can be by-passed or glossed over. It is intrinsic to the very fabric of adjudication itself and it is the major pillar without which the structure of justice cannot stand. This was aptly and admirably demonstrated in this case, which was decided based on the unique provisions of the High Court of Anambra State (Civil Procedure) Rules applicable at the material time.
THE FACTS OF THE CASE
The facts of the case are as reported in Osumuo v Udeaja (2026) 11 NWLR (Pt.2052) 443. At the High Court of Anambra State, the respondent instituted an action against the appellant claiming, inter alia, possession and damages in respect of a piece of land. Upon service of the originating process on the appellant, he counter-claimed against the respondent for similar reliefs. When the suit came up in court for hearing, the respondent and his counsel were absent. The trial court struck out the suit of the respondent for want of prosecution. It then fixed the counter-claim of the appellant for hearing. The court did not order a hearing notice to be issued and served on the respondent with regards to the hearing of the counter-claim. The counter-claim was heard in the absence of the respondent. In its judgment, the trial court granted the appellant’s counter-claim. Dissatisfied with the judgment, the respondent appealed to the Court of Appeal, which allowed the appeal, set aside the decision of the trial court, and ordered a retrial of the suit by the trial court. Aggrieved by the decision of the Court of Appeal, the appellant appealed to the Supreme Court which dismissed the appeal.
JUDGMENT OF THE SUPREME COURT
The Procedure for Hearing a Counter-Claim after Plaintiff’s Case is Struck Out:
By virtue of Order 24 rule 14 of the High Court of Anambra State (Civil Procedure) Rules 1988, where the defendant in a case which has been struck out under rule 12 of the Order has a counterclaim, the court may proceed to hear the counterclaim and give judgment on the evidence adduced by the defendant, or may postpone the hearing of the counter-claim and direct notice of such postponement to be given to the plaintiff.
The Interpretation of Clear Provision of a Statute is Clear:
By virtue of the literal rule of interpretation, where a provision of a law is comprehension-friendly, the court should accord it its ordinary grammatical meaning without garnishing it with any linguistic beautification that has the tendency to belabour and befog its appreciation and obscure the intention of the legislature. In this case, the provision of Order 24 rule 14 of the High Court of Anambra State (Civil Procedure) Rules 1988 admits of no argument that the provision is clear in its connotation. To this end, the law compels the court to apply the literal canon of interpretation of statutes in construing it.
The Interpretation of Order 24 rule 14 of the High Court of Anambra State (Civil Procedure) Rules, 1988:
The provision of Order 24 rule 14 of the High Court of Anambra State (Civil Procedure) Rules, 1988 owns binary arms. The first arm grants the trial court the unbridled licence to proceed to entertain a counter-claim and render judgment, on the footing of the evidence adduced by the defendant, after a plaintiff’s suit is struck out. This arm presumes the presence of the plaintiff and knowledge of the proceeding during the gestation period of the counter-claim. The second arm equips the trial court with the vires to adjourn the determination of the counter-claim and issue notice of the postponement to the plaintiff. This arm, in sharp contrast to the first arm, envisages a situation where the plaintiff was absent during the proceeding that aborted the lifespan of his suit, hence the necessity for a notice of adjournment. Thus, whilst under the first arm of the provision, notice of proceeding to the plaintiff may be unnecessary, if he is apprised of it, it is a condition sine qua non for the second arm. In the instant case, the hearing of the counter-claim fell under the second arm of the provision. The respondent, who was the plaintiff before the trial court, whose suit was struck out in limine, was not present before and during the proceeding of the 29th July 2003 which terminated his suit in its embryo stage. The trial court was thus under a bounden duty to issue hearing notice for service on the respondent upon its postponement of the hearing of the appellant’s counter-claim.
The Fundamental Nature of Service of Court Process on Party to a Proceeding:
Nigeria operates an accusatorial system of adjudication in which service of court process on a party to proceeding is a fundamental right. It is the service of court process that vests a court with the requisite jurisdiction to entertain a matter. Service of hearing notice, the means and procedure to compel a party to appear in court, is imperative for adjudication. It ignites the jurisdiction of a court over a matter.
The Meaning, Nature and Importance of Service of Hearing Notice:
Hearing notice is a document, which is issued from the court registry, which gives legal notification to parties in a suit and the dates and time on which a case would be heard. A hearing notice must notify a party of the date and place of hearing of the proceeding for which it is being served. It must be against the date fixed/scheduled for hearing. It is a constitutional requirement which birthed the doctrine of fair hearing.
The Effect of Failure to Serve Hearing Notice on a Party Where Necessary:
Where it is necessary to serve a hearing notice, but it is not effected on a party, the court will be robbed of the vires to try or continue to hear an action, and any orders flowing from it will be a nullity.
When Incumbent on Court to Order Issuance and Service of Hearing Notice:
It is incumbent on a court to order for the issuance and service of hearing notice from day to today, inclusive of the date of delivery of judgment, on an absent party. In the instant case, there was nowhere the trial court ordered for hearing notice to issue on the respondent at the end of each day’s proceedings vis-à-vis the determination of the appellant’s counter-claim.
Per OGBUINYA, J.S.C. at page 467, paras. A-D:
“Curiously, the trial court, with due reverence, found it convenient not to order for the issuance of hearing notice to be served on the respondent at the end of each day’s proceeding, including the penultimate proceeding of 4th December 2003, which birthed the decision sought to be impugned and ostracised before the lower court, notwithstanding that the respondent was never a participant in the proceeding. The failure, a costly faux pas, flagrantly fractured this hallowed principle of law which is designed and tailored towards ensuring fair hearing to parties in proceeding. It cannot be gainsaid that in the face of the trial court’s non-ordering/ direction of service of hearing notice on the respondent, its decision on the counter-claim, which was nullified by the lower court, was/is a pessimi exempli of a lopsided judgment.”
The Constitutional Duty on Courts to Ensure Fair Hearing to parties:
The constitutional doctrine of fair hearing mandates the courts, on all the rungs of the judicial ladder, to create a congenial, egalitarian, and hospitable milieu for parties to ventilate their perceived grievances in the temple of justice. It decrees, under pain of nullity of proceeding in default, that courts shall accord equal treatment, opportunity, and consideration to the cases of all parties. This is encapsulated in the maxim: audi alteram partem.
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