APPEAL NO: HOW/10CA/2019 -MTN NIGERIA COMMUNICATIONS LTD V. NGOR OKPALA LOCAL GOVERNMENT COUNCIL- delivered on 29-6-2021 by Hon. Justice Innocent M. Njaka: Undefended List and Fair Hearing- Order of service of hearing notice-Duty of the court to ascertain the compliance with

IN THE HIGH COURT OF IMO STATE OF NIGERIA

IN THE OWERRI JUDICIAL DIVISION

HOLDEN AT OWERRI

ON THE 29^th DAY OF JUNE 2021

BEFORE HIS LORDSHIP: – HON. JUSTICE INNOCENT. M. NJAKA

APPEAL NO: HOW/10^CA/2019

SUIT NO: ORC/865/2019

BETWEEN:

MTN NIGERIA COMMUNICATIONS LTD APPELLANT

AND

NGOR OKPALA LOCAL GOVERNMENT COUNCIL RESPONDENT

JUDGMENT

This is an appeal against the decision of the Revenue Court presided over by His Worship N.V. Nwauwa Esq delivered on 30-4-2019

By Summons dated 26^th day of March, 2019 but filed on 29^th day of March, 2019, Respondent claimed the sum of (N45,000,000.00) Forty Five Million Naira only against the Appellant broken down are as follows;

Advert and signage rate N5, 000,000.00
Operational permit N5,000,000.00
Environmental hazard N5, 000,000.00
Capitation rate N5,000,000.00
Tenement rate N20,000 ,000.00
Savage/Refuse disposal N3 ,000 ,000.00
Radio Television N2,000,000.00

TOTAL N45,000.000.oo

In the course of the trial, the Respondent through the PW1 tendered the following document as Exhibits:

Proof of service of the Summons dated 2^nd day of April, 2019 and purportedly served on the Appellant at Owerri on the 2^nd day of April, 2019 admitted as Exhibit A.
Respondent’s letter headed “To whom it may concern” dated 3^rd day of March, 20 l 9 admitted as Exhibit B.

Axa-NK consulting letter dated 3/4/2019 admitted as Exhibit C.
Respondent’s Demand Notice addressed to the Appellant dated 19/3/2019 admitted as Exhibit D.
Hearing notice dated 23/4/2019 and purportedly served on the 23/4/2019 admitted as Exhibit

The trial magistrate court found in favour of the Respondent. Dissatisfied with the decision, the Respondent defendant filed notice and ground of appeal. It is dated 13^th day of May, 2019 and filed on 14^th May 2019. Appellants notice and grounds of Appeal contain 5 grounds of appeal. See page 14 of the records. Thus, this appeal is predicated on notice and grounds of appeal filed on 14^th day of May, 2019.

The grounds and Notice of appeal are reproduced hereunder:

Ground 1

The learned trial Senior Magistrate erred in law when he assumed jurisdiction, heard determined this suit and awarded the reliefs sought by the Complainant/Respondent when his jurisdiction to hear and determine the suit was not properly activated.

Particulars

Appellant was not served with the Statutory demand notice in accordance with the provisions of section 174 (i)(a) of Imo State Local Government Administration Law No.15 of 2000.
Demand notice dated 19/03/2019 and tendered as Exhibit D was not issued and served in accordance with the provisions of the law.
Due service of statutory demand notice on the Defendant/Appellant is a condition precedent for the institution and hearing of the Complainant action against the Defendant.
Non issuance and due service of the relevant statutory demand notice on the Defendant/Applicant robbed the Honourable Trial Court of jurisdiction to hear, determine and make any order in the suit.

Ground 2

The learned Senior Trial Magistrate erred in law when he assumed jurisdiction, heard and determined this suit and awarded the sum of N45,000,000.00 (Forty Five Million Naira only) against the Defendant/Appellant which said sum is far above his monetary jurisdiction.

Particulars:

The claim of the Complainant/Respondent against the Defendant/Appellant as shown in the Summons dated 26^th day of March, 2019 is for the sum of N45,000,000.00 (Forty Five Million Niara only)
The Honourable Court in his judgment delivered on 30-04-2019 gave judgment against the Defendant/Appellant in the sum of N45,000,000.00 (Forty Five Million naira) as claimed by the Respondent.
The monetary jurisdiction of a Senior Magistrate Grade 11 in Imo State as contained in section 22(a) of Magistrate courts law is N600,000.00 (Six Hundred Thousand naira only)
Learned Magistrate V.N Nwauwa who heard and determined this suit is a Senior Magistrate Grade 11
Court is bound to exercise its jurisdiction within the ambit of the law establishing it

Ground 3

The Learned Trial Senior Magistrate erred in law when he proceeded to hear and determine the matter in spite of the fact that hearing notice as ordered by the court on 16^th day of April, 2019 was not issued and served on the Appellant.

Particulars

Hearing in the mater commenced on 16^th day of April 2019 in the absence of the Appellant.
Respondent witness gave evidence and tendered documentary exhibits in proof of her case.
Honourable Trial Court at the close of evidence of the Respondent witness ordered that hearing notice be issued and served on the Appellant before the next hearing date and matter was adjourned to 18-04-2019
On 18-04-2019, trial in the matter resumed despite the fact that hearing notice as ordered by the court on 16-04-2019 was not issued and served on the Appellant
Non service of the hearing notice as ordered by the Honourable Court was a breach of fair hearing as enshrined in the constitution of the Federal Republic of Nigeria.

Ground 4

The Honourable Trial learned Senior Magistrate erred in law when he ordered as follows; “that the Appellant should pay 10% of the judgment sum to the Registrar Environmental Court Owerri, who will remit the money to the Judiciary Account and bring the receipt to the court for striking out the case within seven days of this judgment.

Particulars

Registrar Environmental Court Owerri is not a party in the suit.
Respondent did not in her summons claim the sum of 10% judgment sum in favour of the Registrar Environmental Court Owerri.
It is not within the jurisdiction of a court to award reliefs not claimed by a party in the suit.

Ground 5

The Learned trial Senior magistrate erred in law when he di not afford the Appellant adequate opportunity to defend herself

Particulars:

Respondent closed her case on 18-04-2019 and the matter was adjourned to 24-04-2019
The Honourable Court on 18-04-2019 ordered that hearing notice be issued and served on the appellant before the next adjourned date being 24-04-2019
Hearing Notice admitted as exhibit E was issued on the 23/04/2019 and served on the Appellant on that same date
Judgment was delivered on 30-04-2019 following the absence of the Appellant.
The time between the service of the hearing notice and time adjourned for the hearing was not adequate FOR THE Appellant to prepare and defend herself in the suit.

The Appellant prays for an order setting aside the judgment of the lower court for want of jurisdiction.

The Appellant filed brief of argument and formulated issues for determination as follows:

Whether Demand Notice dated 19 /3/201 9 admitted as Exhibit D was properly issued and served on the Appellant in accordance with Section 17 4( 1 )(a) of Imo State Local Government Administration Law No. 15 of 2000. (Ground 1 of Notice of Appeal).
Whether the Proceedings at the trial court did not breach the Appellant’s right to fair hearing as guaranteed under Section 36 of the 1999 Constitution for Non-service of hearing notice (Ground 3 of the Notice of Appeal).
Whether the award of 10% Judgment sum in favour of Registrar Environmental Court Owerri as ordered by the trial court was proper in law when the said relief was not claimed by the Respondent. (Ground 4 of the Notice of Appeal).
Whether from the circumstances of the case Appellant was given adequate opportunity to defend herself. (Ground 5 of the Notice of Appeal)

On issue 1, the counsel submitted that Section 5 of Imo State Local Government Administration Law No. 15 of 2000 established Ngor Okpala Local Government Council, the Respondent in this appeal. In the conduct of its affairs with regards to collection and general administration of taxes, levies and rates due to the Respondent, and in the enforcement and prosecution of defaulters, the Respondent is bound by the provisions of Imo State Local Government Administration Law No. 15 of 2000 especially the provisions of Section 120 and 17 4 (1)(a) of Imo State Local Government Administration Law No. 1 5 of 2000. Imo State Local Government Administration Law No. 15 of 2000 being the enabling law, Respondent is bound to exercise its powers in line with the provisions of the law in which case the Respondent will be deemed to have acted intra vires its powers. Where she acts or acted outside its powers as established or contained in the enabling law its acts as exercised by it is said to be ultra vires its powers and to that extent null and void. Referred to Magit V. University of Agriculture, Makurdi (2005)19 NWLR (Pt. 959) 211 to the effect that where a public body fails to comply with certain procedural safeguard in an enabling Act or Regulations there is a breach of duty imposed on it and its decision in such circumstances is ultra vires. See also UNTH M.B V. Nnoli (1994) 8 NWLR (Pt. 376).

The counsel cited Section 120 of the Law which provides: “A rating authority, may, where any rate is not paid within the time specified by it under Section (140)(2) of this law publish a notice giving a warning to all persons liable to pay the rate and residing in an area of authority of the Local Government specified in the notice, that the collection of that rate by personal demand will be undertaken as the place of residence of any person by whom that rate is payable or on the highway or in any other place”, and submitted that in the exercise of the powers or statutory duty contained in Section 120 of Imo State Local Government Administration Law No. 15 of 2000, Respondent purportedly issued and served Appellant Demand Notice dated 19 /03/201 9 admitted as Exhibit D. See page 7 of the record.

It is submitted that the procedure for issuance and service of the Demand Notice issued pursuant to Section 120 of the law is contained in Section 174(1)(a) of Imo State Local Government Administration Law No. 15 of 2000. The said law provides thus; “Subject to the provisions of this section, notice, order or other document required or authorized by this law or any other enactment to be served by or on behalf of a Local Government by any employee of the Local Government on any person shall be deemed to be dully served when the person to be served is a company, if the document is addressed to the secretary of the company at its registered office or at the principal office or place of business and is either;

(i) Sent by registered post or

(ii) Delivered at the registered office or at an office or at a place of business of the company within the area of authority of the council”.

It is submitted that in the instant case the Respondent gave the following evidence: “I brought the Defendant to court after I discovered that there are some rates they supposed to pay to Ngor Okpala Local Government Council. The rates are contained in the Demand Notice and I served them with the Demand Notice—–“. The Demand Notice purportedly issued and served on the Appellant is contained at page 7 of the record. It was admitted as Exhibit D. The said Demand Notice is addressed to MTN Nigerian Communications Limited, Ngor Okpala, Imo State as against the provisions of Section 17 4(1)(a) of the Law which provides that such notice or document shall be addressed to the Secretary of the Appellant company at her registered office or at the principal office or place of business.

It is submitted that the said Demand Notice was not properly issued and served in accordance with the provisions of Section 17 4(1)(a) of Imo State Local Government Administration Law No. 15 of 2000. The counsel referred to Auchi Poly V. Okuoghae (2005) 10 NWLR (Pt. 933) 279, where according to him the Court of Appeal held as follows: “Where an Act prescribes a particular method of exercising a statutory power any other method of exercising such power is excluded”. See also Ogualaji V. A.G. Rivers State (1997) 6 NWLR (Pt. 508) 209.

It is submitted that word “shall” used in Section 174 (1)(a) is mandatory and not permissive. Referred to Corporate Ideal Insurance Ltd V. Ajaokuta Steel Co. Ltd (2014) 7 NWLR (Pt. 1405) 165. On this authority, it is submitted that the Exhibit D address to MTN Nigeria Communications Limited was nullity as same was not address in accordance with Section 174(1)(a) of Imo State Local Government Administration Law No. 15 of 2000. The said law imposes a duty on the Respondent to address Exhibit D to the Secretary MTN Nigeria Communications Limited as provided for in the enabling law.

It is further submitted that due issuance and service of Exhibit D is a condition precedent for the Respondent to proceed against the Appellant in a court of law for the recovery of the said sum of money purportedly owed to her. Where the condition precedent for issuance of the Summons was not fulfilled, anything done pursuant to the purported service or issuance of Exhibit D was a nullity. Relied on Nuhu Sani Ibrahim V. INEC & Ors. (1999) 8 NWLR (Pt. 614) 334, Nnonye V. Anyichie (2005) 2 FWLR (Pt.268) 1213.

The court is urged to hold that issuance and service of the Demand Notice that is Exhibit D was irregular, null and void and anything done pursuant to that was a nullity. The court is urged to resolve issue in favour of the Appellant and against the Respondent.

On issue 2 and 4 argued together, it is submitted that in the determination of his Civil rights and obligations, including any question or determination by or against any governments 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. For the definition of fair hearing, the counsel relied on Mfa v. lnongha (2014)4 NWLR (Pt. 1397) 343, and on Okon v. Adigwe (201 I) 15 NWLR (Pt. 1270) 350 for the rule of audi alteram partem which is one of the ingredients of fair hearing, postulates that;

A court should hear both sides not only in the case but also in all material issues which may be prejudicial to any party in the case;
A court or tribunal should give equal treatment, opportunity and consideration to all party;
A court or tribunal should give the parties an opportunity to cross examine or otherwise confront or contradict all the witnesses that testify against them;
Having regard to all the circumstances in every material decision in the case, justice must not only be done but manifestly and undoubtedly be seen to have been done”. See also Eshenake v. Gbiniie (2006) 1 NWLR (Pt. 961) 228.

It is submitted that the essence of the rule of audi alteram partem is that a verdict should not be entered against a man on a matter relating to his civil rights or obligations before a court or tribunal without being given an opportunity of being heard. See Amadi v. Thomas Aphin Co. Ltd. (1972)4 SC 228, Victino Fixed Odds Ltd. v. Oio (2010)8 NWLR (Pt. 1197) 486.

It is submitted that the duty on the court to notify litigants of hearing date is a constitutional one by virtue of Section 36 of the 1999 Constitution which guarantees to every person the right to fair hearing. This must include the right to be notified of the hearing date. Therefore, the court cannot avoid this duty as it can only hold litigants accountable for their action or inaction after it has been shown that they have been made aware of what was required of them. Relied on UBA Pie v. Effiong (2011)16 NWLR (Pt. 1272) 84 where according to counsel, the Court of Appeal held that; “After a court becomes seized of a matter, it has the bounden duty of notifying the parties and more particularly, the adverse party of any date fixed for hearing of the matter and subsequent adjournment dates in respect thereof. If the court glosses over and fails to perform such a duty, then it is committing an unpardonable blunder which will be reversed ex debito justicate by an appellate court”.

It is argued that in the instant appeal plea was taken at the trial court on the 12^th day of April, 2019 being the date stated in the Summons. See page 3 of the records. Complainant was present but Appellant was absent, Complainant was represented by counsel but Appellant was not represented by Counsel or any person from her employ. Plea was taken on the strength of affidavit of service admitted as Exhibit A dated 2/4/2019 and purportedly served on the said 2/4/2019. See page 2 of the records. On the application of the complainant counsel, plea of not liable was entered for the Appellant and suit adjourned to 16^th day of April, 2019 for hearing. Hearing notice was not issued on the Appellant who was neither present in court nor represented by counsel on the 12/04/2019 to communicate the adjourned date to her. It is submitted that the trial court was duty bound to issue and order service of hearing notice on the Appellant who was absent and unpresented in court on 12/4/2019 to communicate the date of hearing to her as adjourned by the trial court. relied on S.P .D.C. (Nig.) Ltd. v. Niger Optical Ser. Co. (2004)7 NWLR (Pt. 872) 422, where according to him, the court appeal held: A court must be willing to go the extra mile in satisfying itself that a party to a case has a notice of hearing date. In doing so, the court would have exercised the requisite caution and satisfied itself that indeed, the parties had due notice. Although this may appear over indulgence of the parties, but it is a price desirable to pay in the quest to attain maximum justice. Thus where the parties are repeatedly absent in court, the only procedure, to take is to issue a hearing notice”.

See Saidu v. Mahmood (1998)2 NWLR (Pt. 536) 130.

It is submitted that the importance of issuance and service of a hearing notice on a party who is not aware of date of hearing was stated forcefully in NAFDAC v. Onwuka (2014)4 NWLR (Pt. 1398) 593 where Court of Appeal held as follows;

“The purpose of pre-hearing notice is to inform the parties of the impending hearing and to ensure attendance at the hearing”.

According to the counsel, the trial court in total neglect of the right of the Appellant to be duly informed of the hearing date of 16/4/2019 as fixed by it and contrary to the Appellant’s right to fair hearing as provided for in Section 36 of 1999 Constitution of the Federal Republic of Nigeria proceeded to trial on 16/4/2019 in the absence of the Appellant. See page 4-4(a) of the records. On that 16/4/2019 Stanley Onuoha testified as PW1 for the Respondent and tendered Exhibits B, C and D respectively. The matter was adjourned to 18/4/2019 for cross examination of PW1. The Honourable Trial Court on the said 16/04/2019 made an order for issuance and service of hearing Notice on the Appellant. See page 4A of the record where the trial court ordered as follows; “Matter is adjourned to 1 8′^h April 2019 for cross examination of PW 1 and the complainant is to issue hearing notice on the Defendant before the next adjourned date”. At the resumed hearing date, that is, 18/4/2019, Respondent was present and represented by her counsel J.E. Okodogbo but Appellant was absent and unrepresented. Respondent counsel applied that Appellant be foreclosed from cross examining his witness PW1 and that the said witness be discharged. The application was granted. See page 8 of the records. There is no evidence on record to show that the hearing notice as ordered by the trial court on the 16/4/2019 was issued and served. Proof of service of the hearing notice as ordered by the trial court was not shown to the court. The court on its own did not inquire from the Respondent if the order for issuance and service of hearing notice made on 16/4/2019 was executed. It is our humble submission and we urge my Lord to hold that absence of evidence of service of hearing notice on the Appellant as ordered by the trial court on 16/4/2019 means that the Respondent did not serve the Appellant with hearing notice as ordered by the court.

It is further submitted that failure to serve the Respondent with hearing notice as ordered by the court on 16/04/2019 amount to breach of fair hearing as provided for in Section 36 of the Constitution of Nigeria. Relied on Okon v. Adigwe (Supra). The trial court failed in the instant case to inquire whether the Appellant was actually served with hearing notice as order by it. The court proceeded to trial and foreclosed the Appellant contrary to the principle of fair hearing which the rule of audi alteram partem is an important aspect of. Relied on Tsokwa Motors (Nig.) Ltd. v. UBA Pie (2008)2 NWLR (Pt. 1071) 347, Nigerian Newspapers v. Otteh (1992)4 NWLR (Pt. 237) 625, Okon v. Adigwe (Supra).

It is submitted that it is the service of hearing notice more especially when ordered by the court that confers jurisdiction on the trial court to hear a matter. A judgment in a case heard in the absence of a Defendant is one given without jurisdiction where the absence of the Defendant is due to failure to serve him hearing notice as in the instant case. See Adeyemi v. Lan & Barker (Nig) Ltd. {2000)7 NWLR {Pt. 663) 33. Such judgment is a nullity and this appellate court has the vires to set it aside for want of jurisdiction. The court is urged to set aside the judgment of the trial court for breach of fair hearing and lack of jurisdiction.

It is submitted that the Appellant’s right of fair hearing was also breached when the hearing notice ordered by the trial court on 18/4/2019 was served on 23/4/2019. The court after the proceeding of 18/4/2019 adjourned to 24/4/2019 for defence to open. Order for issuance and service of hearing notice on the Appellant was made. See page 8 of the records. The said hearing notice ordered by the trial court on 18/4/2019 was served on 23/4/2019 less than one day before the adjourned date of 24/4/2019. Appellant was not given adequate time within which to prepare her defence in accordance with the provisions of Section 36 of 1999 Constitution. A denial of the right to be heard or opportunity to be heard is a breach of constitutional right and rules of natural justice and should not be allowed. Referred to Otato v. Sunmonu {1987)2 NWLR {Pt. 58) 586, Scoft-Emuokpor V. Ukaube (1975) 12 SC 14, Bamgboye v. University of Ilorin {1999) 10 NWLR (Pt. 622) 290

Relying on the above decided cases the court is urged to hold that failure to serve the Appellant with hearing notices was a denial of fair hearing. Appellant was not given adequate time or opportunity to present her defence at the trial court.

The court is urged to hold that Judgment of the trial court delivered on 30/4/2019 was a nullity for want of jurisdiction. The court is urged to resolve issues 2 and 4 in favour of the Appellant.

On issue 3 it is submitted that the reason which makes it imperative to make a person a party to an action is that he will be bound by the result of the action and the questions to be settled therein. Referred to lbigbani V. Military Governor, Ekiti State (2004) 4 NWLR (Pt. 863) 243. The counsel cited Adeogun V. Ekunrin (2003) 3 NWLR (Pt. 856) 52 to the effect:”Whatever order the court makes at the end of a case is usually based on the claim before the court”.

According to the counsel, in making the order or awarding relief in favour of a party in the suit a court is guided by the parties before it, reliefs sought by the parties and evidence supporting the reliefs. Relied on S.C.O.A (Nig.) Ltd V. J.A. Kehinde & Sons Ltd (2004) 8 NWLR (Pt. 87 4)87 where the Court of Appeal while emphasizing the basis for decision of court held as follows; “Facts or items of evidence adduced in a particular case are the basis for the court to draw legal conclusion. Thus where an order made by a trial court does not flow from the facts and findings in the case, it is right for the appellate court to interfere in the interest of Justice”. And in Akinrinusi V. Maersk (Nig.) Ltd (2013) 10 NWLR (Pt. 1361) 73 where the Supreme Court in a unanimous decision stated as follows: “Courts of law are bound by the prayers or claims sought before them. They cannot grant a claim or prayer not sought. Any such claim or prayer granted without being pre-claimed by parties is invalid”. Likewise in Nwaogu V. Atuma (2013) 11 NWLR (Pt. 1364) 117, where the Supreme Court held: “A court should not make unsolicited orders or grant prayers not sought by the parties. This is because the court is not a charitable organization”.

The court is urged to hold that any relief or order made by a court where such relief or order was not sought for by a party in the suit is made without jurisdiction thus a nullity.

According to the counsel, this suit was commenced with Summons dated 26^th day of March, 2019 but filed on 29/3/2019. Parties as shown in the Summons are; Ngor Okpala Local Government Council, Complainant, in the suit and MTN Nigeria Communications Limited sued as Defendant. In the Summons, the complainant now Respondent claimed the sum of (N45, 000,000.00) Forty-five Million Naira being arrears of rates or duties Appellant owe her for the period 2017 – 2019. See page 1 of the record. Exhibit D was the basis for the Summons issued and purportedly served on the Appellant. See page 7 of the records. In the said Exhibit, Defendant stated that the total sum purportedly owed to her by the Appellant is (N45, 000,000.00) Forty-five million naira only. In the proceedings of 16/04/2019, Stanley Onuoha who testified as the Respondent’s only witness stated as follows:“I brought the Defendant to court alter I discovered that there are some rates they supposed to pay to Ngor-Okpala Local Government Council. The rates are contained in Demand Notice and I served them with the Demand Notice … ” He further stated as follows in his evidence: The revenue that are due for Ngor Okpala are itemized in the Demand Notice. Alter I served them with the Demand Notice the Defendant did not pay those rates and that was why I brought them to court. I want the court to make an order for them to pay the rates”.

The counsel expressed surprise that in total disregard of the relief claimed, the trial court in her judgment ordered as follows: “The Defendant should pay 10% of the judgment sum to the Registrar Environmental Court, Owerri, who will remit the money to the judicial account and bring the receipt to the court for striking out the case within 7 days of this judgment”.

See page 14(c) of the records.

According to the counsel, there is nowhere in the record Respondent witness gave evidence for the Appellant to pay 10% of the Judgment sum to the Registrar, Environmental Court Owerri as order by the trial court. Respondent also did not pray for award of 10% Judgment sum in favour of Registrar Environmental Court Owerri in her Summons.

The court is urged to hold that the trial court lacked the power to make the order for payment of 10% judgment sum in favour of the Registrar, Environmental Court, Owerri when the said relief was not claimed by the Respondent either in her evidence before the court and in the Summons. Furthermore, Registrar Environmental Court Owerri, beneficiary of the order of the trial court is not a party in the suit. Not being a party in the suit, she is not entitled to award of any relief as ordered by the trial court. Relied on Ndoma-Egba V. Chukwuogor (2004) 6 NWLR (Pt. 869) 382 where Supreme Court held: “A relief sought in a suit on behalf of a person who is not a party to the suit is incompetent and ought to be struck out”. Registrar Environmental Court, Owerri is not a party in the suit. Thus the relief awarded to it was incompetent in law and we respectfully urge my Lord to hold. Relied on Emirate Air Line V. Ngonadi (No. 2) , Bukar V. Bashir (2014) 11 NWLR (Pt. 1417) 68.

The court is urged to hold that the award of 10% judgment sum to Registrar Environmental Court, Owerri was not proper in law and thus ultra-rises the powers of the trial court. The court is urged to resolve issue 3 in favour of the Appellant and against the Respondent.

RESOLUTION:

The Appellant formulated 4 issues out of 5 grounds of Appeal. No issue was formulated from ground 2 relating to monetary jurisdiction of the magistrate court to entertain the complaint against it more especially regarding the amount of money involved. It does appear that the Appellant has availed herself of the clear provisions of Revenue Court Law No 16 of 2012 establishing Revenue Court in Imo State. Sections 3 and 4 of the Law provide:

3(1) There is hereby established a Revenue Court for Imo State

The Revenue Court shall be presided over by a Magistrate assigned to it by the Chief Judge of Imo State

4(1)The Court shall have jurisdiction to hear and determine all cases arising from this law and from any part of Imo State

(2) Without prejudice to the jurisdiction the presiding magistrate, the court shall exercise unlimited monetary and fiscal jurisdiction in respect of all matters before it

(3) The court shall speedily try and determine cases arising this Law

It is therefore clear as the day that the Revenue Court established under the Law and presided over by His Worship N.V Nwauwa in addition to or without prejudice to his jurisdiction as Magistrate GD 1 has an unlimited monetary and fiscal jurisdiction while presiding over Revenue Court.

On issue 1, the Appellant has contended that demand notice was not properly issued and served on the Appellant. It is not the contention of the Appellant that no demand notice was issued and served on the Appellant rather it was not properly issued and served in that it was not addressed to the secretary. The said Demand Notice was tendered as exhibit D. It is shown that the Demand Notice was acknowledged by one Chief Igbokwe John on 21/03/2019. By the Notice the Appellant was expected to pay the sum within 7 days.

Subsequently summons was issued against the Appellant dated 26-03-2019 requesting the Appellant to appear in court on the 12^th April 2019. This Summons was equally served on the Appellant through the same Chief Igbokwe John.

On the 12^th April 2019 the Appellant was not in court and was not represented by counsel. It was adjourned to 16^th April 2019

On the 16^th April 2019 the Appellant was still not in court and was not represented. The Respondents testified through one Stanley Onuoha as the PW1 and tendered the documents including the Demand Notice served on the Appellant. It was adjourned to 18^th April 2019 and hearing notice ordered to be served on the Appellant

On the 18^th April 2019 the Appellant was absent and was foreclosed from cross examining the PW1. It was adjourned to 24^th April 2019 for defence.

Now from 16^th of April 2019 to the 18^th April was just a day in between. That probably was why no hearing notice was served on the Appellant. The Appellant from inception never appeared but we are not in position to guess if served with the hearing notice on the 16^th April would have brought her to court on the 18^th April 2019

The Appellant has not denied the existence of the said Chief Igbokwe John or that she has a place of business at the place. I am unable to agree with the Appellant that the issuance and service of Demand Notice was irregular, null and void.

The Appellant’s issues 2 and 4 bothered on the alleged breach of section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) arising from none service of hearing notice in respect of 18^th day of April 2018 and shortness of the notice of 23^rd April 2019 for the proceeding of 24^th April 2019. when judgment was entered. This being the case it is imperative we look at some decided authorities in this regard that I can lay my hands upon. The counsel for the Judgment Debtors relied on MR. JOHN OKON v. HON. PASCAL ADIGWE & ORS. (2011) LPELR-4528(CA) to insist that hearing notice ought to have been served on the Defendants/Judgment Debtors. The fact of that case as captured in the report is:

“The appellant Mr. John Okon entered appearance as per the notice of entry of appearance filed on 18-02-08, and filed a statement of defence and counter claim on 28-02-08 which was filed out of time. He later filed a motion on notice on 01 -04-08 seeking leave to file his statement of defence out time. This motion was subsequently withdrawn by learned counsel for the appellant Mr. J. B Udobang Esq. on the 4th of March, 2008 and struck out. The substantive case was then fixed by the learned trial judge for hearing on 01/04/08. On 01/04/08 the appellant counsel was not in court. The 2 – 5 respondents’ motion on notice was moved and an order made for them to file their statement of defence. The court adjourned to 24/04/08 for hearing but did not order hearing notice to be issued and served on the learned counsel for the appellant. On the adjourned date of 24/04/08 neither the appellant nor his counsels were in court. P.W1 testified and was cross-examined by learned counsel for the 2nd – 5th respondent. The learned trial judge ordered fresh hearing notice to be served and adjourned the case to 27/05/2008 for further hearing. On the 27/05/2008 the appellant’s counsel was not in court again and there is no record from the proceedings of that date showing they were served. The 2 – 5 respondents with leave of court amended their statement of defence. The court adjourned further hearing to the 30/05/08. From the record of appeal there is no evidence the court sat on that date but on 14/07/08 learned counsels were all in court except counsel for the appellant. The 2 – 5 respondents called one witness, DW1 testified and was cross examined. The court then ordered written addresses and adjourned to 22/09/08 for adoption of the written addresses. On the 22/09/08, the 1st respondent counsel was not in court and fresh hearing notice was ordered to be issued and served on him. On 14/11/2008 the plaintiff was granted leave to amend his writ of summons and statement of claim. The appellants counsel was not in court. On 25/11/2008 learned counsel for the 2 – 5 respondents and the 1st respondent adopted their respective written addresses. Judgment was reserved. The learned trial judge in a well considered judgment delivered on 20/01/2007 decided in favour of the 1st respondent.”

In the course of the judgment, the court observed:

The fact that there was non service of the hearing notice on the appellant before the hearing commenced before the trial court raises the question whether the appellant has been denied his right to fair hearing. It is obvious from the records that the appellant was aware of the pendency of the case involving him in the court for which they had taken steps and filed their defence with counter claim even though out of time. The poser is, if the appellant counsel was fully aware of the pendency of the case against his client why did he not visit the courts registry to enquire about the position of the case. In effect why did he not behave like a vigilant counsel or discharge the duty of a diligent counsel by making enquiry on the progress of a pending case in which he has been briefed to represent his client. One may also add, will such conduct not amount to an act of indolence which the law will not indulge. What then is the position of the law on failure to serve hearing notice vis a vis the right to fair hearing.”

The court went on to hold:

“The appellant has no right to complain of the sitting of 01/04/08 because he was in court when the matter was adjourned. Where a suit has been set down for hearing in open court on a date specified to parties in court. His service of hearing notice is obviated. See Adeyemi v. Lan & Baker Ltd (2000) 7 NWLR (Pt.663) 33. Mankanu v. Salman (2005) 4 NWLR (pt.915) CA 270. When the trial court adjourned the matter on 01/04/08 to 24/04/08 for hearing the court did not order for hearing notice nor is there evidence on record that hearing notice was served on the appellant or his counsel. On that adjourned date the first prosecution witness testified. The proceedings of the 24/04/08 were conducted in the absence of the appellant and he was not served with hearing notice. Service of hearing notice was required in the circumstance, the failure to notify the appellant by serving notice of hearing date is a fundamental omission which renders the proceedings a nullity. It is not a mere irregularity. See Dawodu v. Ologundudu (1986) 4 NWLR (Pt.33) 104. Madam Kinkuiya Odija v. Ezedinon Okwudinma & 2 ors (1969) NMLR 121.

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The report on service must be recorded as part of the proceedings. It is the record of valid service on the record of the court that will enable the court to proceed with the matter duly satisfied that the party has been given the opportunity to be in court to present his own side. This is the level playing ground. For once there is prove of that service it is sufficient for the trial court to proceed because what it means is that once served the absence of the party is presumed to be deliberate as he has neglected and abandoned his defence to the action and has himself to blame. The learned trial judge without evidence of service on the appellant adjourned to 30-05-2008 from the record. On 14/07/08 the record reflects that the defence opened their evidence without any prove of service of hearing notice on the appellant and the proceeding continued until judgment was reserved and delivered.

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The principle of fair hearing requires that a party should be given an opportunity to be heard by informing him of the date a matter will be heard if he throws it away he has no right to complain. The principle of fair hearing therefore does not indulge the indolent litigants. See Newswatch Communication Limited v. Alhaji Aliyu Ibrahim Atta (2006) All FWLR (Pt.313) 580 at 601. Jonason Troamgle Limited v. CM partners Limited (1999) 1 NWLR (Pt.588) Pg.555.

Learned counsel for the respondent further argued that where a party is not served with hearing notice there is nothing preventing him from visiting the court registry to enquire about the position of the case. This is a logical and reasonable argument. However, that is not the law founded on fair hearing which requires that equal opportunity or consideration be given to all parties.

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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.”

It could be seen that in this case, the court berated the counsel for not taken the pain to check on his case and yet held there was need to have served him notice of hearing for the particular date judgment was entered against him.

A similar stance was taken by the Court of Appeal earlier on the case of KPABUYO LOCAL GOVERNMENT V. HON. OROK N. EDIM (2002) LPELR-7056(CA); (2003) 1 NWLR (PT. 800)23; (2003) FWLR (PT.187) 825. Where the court stated:

In the instant case, the record of appeal shows as earlier narrated that by order of the court below placing the writ on the undefended list, the appellant was directed to file its notice of intention to defend on or before the return date fixed for 15/11/99. On this date, the appellant was not represented in court and the respondent’s counsel who was present told the court that service of writ of summons and the accompanying processes had not been effected on the appellant and in consequence the matter was adjourned to 16/12/99 for service without, it would appear, any endorsement on the writ of the date to which the matter was adjourned. Had there been evidence of service on the appellant on 15/1/99, the court below would have been justified in entering judgment for the respondent, there being no notice of intention to defend filed by the appellant.

However, on 16/12/99, the appellant understandably was still not represented in court although the affidavit of service showed that it had been served on 29/11/99. As at this date the return date of 15/11/99 had passed. It seems to me reasonable that the appellant on being served on 29/11/99 when the return date had passed ought to be notified of the next return date or the next date fixed for hearing before which date he was expected to file his notice of intention to defend. Even on 16/12/99 when the court granted the appellant 14 days to file its notice of intention to defend if it desired to defend the suit before adjourning to 11/1/2001 there is no evidence that any order to that effect was served on the appellant. The rules of court dealing with cases to be put on the undefended list are designed to ensure quick dispensation of justice but not at the expense of fair hearing as it relates to service of process: Agwuneme v. Eze (1990) 3 NWLR (Pt.137) 242 at 257. It seems to me that when on the return date of the summons, that is 15/11/99, the court below was informed that the appellant had not been served with the court processes and the matter adjourned to 16/12/99, the appellant ought to have been notified of this new date of hearing.

This from the available record was not done nor is there evidence that the subsequent dates to which the matter was adjourned were ever communicated to the appellant. It is a cardinal principle of law that where service of process is required, failure to serve is a fundamental vice and the person affected by the order but not served with the process is entitled ex debito justitiae to have the order set aside as a nullity: Mbadinuju v. Ezuka (1994) 8 NWLR (Pt. 364) 535 at 566.

Here again, although the Defendant was served with the Originating Process along with the order placing the suit under the undefended list, the Court of Appeal insisted that for failure to serve a hearing notice for the particular date the judgment was given, it was a violation of the defendant’s right to fair hearing.

Also in NASCO MANAGEMENT SERVICES LTD. V. A.N. AMAKU TRANSPORT. LTD (2002) LPELR-7139(CA), [2003] 2 NWLR (PT. 804)290; (2002) FWL (PT. 135) 652 AT 690 the Court of Appeal stated:

“It must be emphasized that hearing notice in our adversary system of justice is very fundamental. Where service of hearing notice is called for any proceedings conducted without due issuance of it is rendered null and void. It is a fundamental vice which easily vitiates proceedings. Where proceedings are conducted when no hearing notice is served on a party who should have been necessarily served the whole proceedings are rendered void no matter how well conducted they were. See Obimonure v. Erinosho (1966) 1 All NLR 250; Skenconsult (Nig.) Ltd. v. Ukey (1981) 1 Supreme Court 6 at 26 -27; WEMA Bank v. Odulaja (2000) 7 NWLR (Pt.663) 1.” Per MANGAJI, J.CA.(Pp. 69-70, Paras. G-B)

On the other hands are the Supreme Court decision which it appears are not in support of hearing notice being served each day the matter comes up and the Defendant is not court and not represented. In ATTORNEY-GENERAL OF RIVERS STATE V GREGORY OBI UDE (2006) LPELR-626(SC) ;(2006) 17 NWLR (Pt.1008) 436; (2006) 6-7 S.C 131 the facts of the case as reported is:

The defence opened its case on the 17/12/1997. The case was adjourned to 2^nd and 7^th of April, 1998 for continuation of hearing. When the matter resumed on the 2nd of April 1998, the learned counsel for the defendants was not in court none of the defendants was in court including the 1st defendant who was giving evidence as DW.1 or the 2nd defendant, who made the counter-claim. When the matter next resumed on the 22/6/1998, again the learned counsel of the defendants and the defendants were absent and were foreclosed.

The court Appeal expressed the view on issue of service of hearing notice on subsequent adjournments

“All these adjournments and events took place in the absence of the appellants (defendants). It would appear that the appellants did not take any steps to find out what was happening to their case as from the 7/4/1998 when they should have been in court but failed to turn up. The appellants had a duty to themselves and the court below the follow up the progress of their case. They therefore have a major share of the blame of what happened to them in the court below. I am firmly of the view that despite the misbehaviour of the appellants in not showing up in court on the 2nd and 7th of April, 1998 and not giving any reasons for their absence in the court, the trial court knowing the seriousness of the issues in the case could have given the appellants notice of the adjourned dates before closing their case and giving judgment against them. I therefore see merit under this issue.”

The Supreme Court took a different view. It stated:

By the undisputed facts of this case, the respondents were aware of the adjourned date and indeed the respondents asked for and were granted adjournment to continue with their case. The respondents deliberately neglected and abandoned their defences to the action, they have themselves to blame as the Court of Appeal stated. In my view, the Court of Appeal acted erroneously when they held that the respondent were under the circumstances of this case, entitled to be told of the adjourned date. The respondents were absolutely to blame. The Court of Appeal was in error to have held that the trial Judge was wrong to have exercised his discretion to close the case of the respondents when they failed to appear in court. When it was the respondents who asked for and were granted an adjournment to appear in court in a certain date to prosecute their claims before the Court. They refused to appear in court and had failed to find out what was happening in the court. They simply abandoned their case and accordingly the respondents were not entitled to fresh hearing date under the circumstances.

In the case of Taiwo Ajani v. Shitta Giwa (1983) NWLR (Pt.32) 797 at 806 – 807 SC. Oputa, JSC, held as follows: “Section 33(1) of our 1979 Constitution guaranteed the plaintiff in this case a fair hearing of his case within a reasonable time. This constitutional guarantee should never ever be held hostage by the laziness or/and delaying tactics of counsel …” (the Italics mine) Holding the court to ransom in the above case, was described by the learned Jurist, as “an intolerable situation indeed.” It is now firmly settled that the courts, do not aid the indolent. The principle or rule comes into play, only where a party is denied any opportunity to be heard. It is not applicable to a defendant, who fails to appear to defend an action against him. See Shahimi v.Akinola (1993) 5 NWLR (Pt.294) 434 C.A. In Ekrebe v. Efeizomor II (1993) 7 NWLR (Pt.307) 588 C.A, it was held that a defendant who fails to come to court to defend an action against him, cannot complain of denial of fair hearing under section 33(1) of the 1979 Constitution. ———In the case of Kaduna Textiles Ltd. v. Umar (1994) 1 NWLR (Pt.319) 143 at 159 C.A, Achike, JCA (as he then was), stated inter alia, as follows: ‘The question is, is it fair and just to the other party or parties, as well as the court, that a recalcitrant and defaulting party should hold the court and other parties to ransom? Should the business of the court be dictated by the whims and caprices of any party? I think not. It goes without saying that justice must be even-handed, for the law is no respecter of persons.” Surely and certainly, it is a latin maxim that interest reipublicae ut sitfinis litium – “There must, in the public interest be an end to litigation. See the cases of Aro v.Fabolude (1983) 2 Sc. 75 at 83, (1983) 1 SCNLR 58, per Aniagolu, JSC and Nwadike & ors. v. Ibekwe & ors. (1987) 12 Sc. 14; (1987) 11 – 12 SCNJ 12; (1987) 4 NWLR (Pt.67) 718. Indeed, it is settled, that a defendant, cannot benefit from his own default. See the case of Chief Ekanem & 2 ors. v. Chief Akpan & 2 ors. (1991) 8 NWLR (Pt.211) 616 at 634 C.A. – Per Uwaifo, JCA, (as he then was). In the instant case, the respondent in particular, and their learned counsel, have only themselves to blame.

In CHIEF NICHOLAS BANNA V. TELEPOWER (NIG.) LTD (2006) LPELR-1352(SC); (2006) 15 NWLR (PT.1001) 198; (2006) 7 S.C (PT I) 1. Here the fact as reported is:

On 13th August, 1993, the respondent as plaintiff filed a suit at the High Court of Rivers State claiming three reliefs. On the same day, the respondent filed a motion on notice for an order of interlocutory injunction against the appellant. The learned trial Judge, Tariah, J. dismissed the motion. The respondent filed its statement of claim on 5th May, 1994. The appellant as defendant filed his statement of defence on 21st June, 1994. On 11th July, 1994, the respondent filed a reply to the statement of defence. And so the pleadings got into the judicial process. The case was fixed for mention on 29th September, 1994. Thereafter the matter was adjourned to 6th November, 1994, 10th November, 1994, 2nd February, 1995 and 9th March, 1995 for hearing. On 9th March, 1995, the matter came up again for hearing. Appellant was absent. The suit was dismissed under Order 37 Rule 8 with N500.00 costs.

On appeal at the Court of appeal, the Court of Appeal was of the view thus:

“However, I still believe that where a party has shown considerable remorse in his handling of a matter in court and prays fervently to be admitted to have the case argued on its merit, the court ought not to continue to be too rigid in acceding to the prayers. In such a case a punitive cost imposed by court below would do the trick. I have never supported a resort to short-circuiting a trial summarily. Indeed it never ends a trial but prolongs it. The court below could have merely struck out the suit instead of dismissing it. In the present case, I am prepared to fall backwards to accommodate the appellant. In the circumstances, I will allow the appeal and set aside the judgment of the court below. The matter should be remitted to another court below to handle. I make no order as to costs.

On further appeal at the Supreme Court, it is stated: Per Ogutande JSC:

The provision dealing with fair hearing under section 36 of the 1999 Constitution of Nigeria is for the protection of all the parties to a case, the plaintiffs and the defendants alike. It will be oppressive to interpret the provision as conferring a protection on just one of the parties to a case. In this connection. I like to call to mind the views of this court per Oputa, JSC in Willoughby v. International Merchant Bank (Nig.) Ltd. (1987) 1 NWLR (Pt. 48) 105 at 131 para H:

“The court’s primary function is to do justice between the parties to a dispute. One sided justice will amount to injustice. The law is made to ensure justice. Rules of Court are hand maids of justice. It is only by the orderly administration of law and obedience to the rules that legal justice can be attained. When a particular decision is against all known rules; against all known principles, then it is certainly, not made in the interest of justice.” Per Tobi JSC:

The best Judge in trial procedure is undoubtedly the trial Judge. He sees it all because he closely watches the proceedings and all that. He feels the pinch when parties try to dilly-dally the proceedings or adopt tricks to overreach or outsmart the adverse party. If the trial Judge fails to take a position in the light of the rules of court and takes or tows the line of sympathy in the way the Court of Appeal did, then he will have a plethora or load of cases in his cause list to the extent that he cannot get out of a mounting backlog of cases.

That will reflect on him adversely and in these days of continuous assessment of the performance of Judges, he will be in for it. While I concede that a trial Judge cannot throw away the constitutional provision that parties should be given a hearing in matters before the court because of repercussions of performance assessment, a Judge owes the administration of justice a duty to facilitate and ensure the speedy hearing of a case before him. The notoriety that delayed justice attracts to the judiciary is such that Judges must work towards the speedy dispensation of justice. We do not have a choice in this troublesome matter. Let us do our best and our best is to facilitate the speedy hearing of cases.

A plaintiff has not only a right to file an action in court to redress a wrong done him by a defendant; he also has a duty to prosecute the matter to conclusion within the rules of court. Of course, the duty is not mandatory, compulsory or sacrosanct, as he can decide not to prosecute. A plaintiff who files an action in court and exhibits some indolence and nonchalance has himself to blame. After all, he brought the defendant to court and if he decides not to pursue the case diligently, the court has no option than to either strike out or dismiss the matter, depending on the enabling rules of court.

In SIMON EZECHUKWU & ANOR v. I. O. C. ONWUKA, a decision of the Supreme Court delivered on Friday, the 22nd day of January, 2016 SC.190/2005, (2016) ALL FWLR (PT.824)148 AT 165-6, 174 the fact as reported is:

The Law firm of Osuman & Co entered appearance for the 1st – 4th defendants vide T. S. Shior Esquire by a memorandum filed on 14th May 1999. S. T. Tume Esquire, a senior state counsel with the Benue State Ministry of Justice, by a memorandum filed on the 17th May 1999, entered appearance for the 5th – 7th defendants.

Hearing notices having been issued by the trial Court, parties were all served on the 6th July 1999. On the hearing date, 16th July 1999, neither the 1st – 4tn defendants nor their counsel appeared in Court. The 5th – 7th defendants, on the other hand, though not in Court, were represented by counsel and subsequently, by leave of Court, filed their statement of defence out of time. They also participated in the trial. Their counsel, J. O. Idikwu Esquire, full cross examined the 1st plaintiff and his four witnesses. The 2nd plaintiff neither appeared at nor participated in the trial which was concluded on the 11th April 2000. Following application by counsel, the name of the 2nd plaintiff, who did not appear to prove his claim against the defendants, was struck out. Learned plaintiff’s counsel also conceded to the prayers of counsel to the 5th – 7th defendants that their names be struck out since the evidence led in Court had not disclosed any case against them.

On the 17th, two days to the 19th May 2000 to which date the case had earlier been adjourned for judgment by the trial Court the defendants, now appellants, applied to the Court inter-alia, for the arrest of its judgment and leave to file their statement of defence out of time.

The Supreme Court held as follows:

“It is certainly not open to a litigant that had been served hearing notice commanding him to proceed to Court to defend the case instituted against him and who, the hearing notice apart, is otherwise aware of the proceedings taken against him by another, to assert a breach of his right to fair hearing if eventually a decision is given against him. Section 36(1) of the 1999 Constitution (as amended) which enshrines the doctrine of fair hearing the appellants’ wave with gusto does not avail them. The section only provides that before any decision is taken by a Court of law against them, the appellants’ be given the opportunity to present their side of the matter. The appellants who chose to voluntarily stay away from the Court after that opportunity had been extended to them are not covered by the Section of the Constitution they now assert provides for them. So be it. See Okafor V Ag Anambra (1991) 6 NWLR 659; (1991) LPELR-2414 (sc) and Baba v N.C.A.T.C. (1991) 7 SC (Pt.1) 58, (1991) LPELR-692 (SC).” Per MUHAMMAD, J.S.C. (Pp. 21-22, Paras. C-B)

In His on contribution, His Lordship, Peter -Odili, J.S.C. stated:

“For emphasis, it needs be said that since the trial Court had ascertained that the hearing notice was properly served on the Appellants, there was no extra requirement that fresh hearing notice should be served on the appellants on every adjourned date as the Court was satisfied that the opportunity to be heard was afforded the appellants and their keeping away was their choice and the repercussions they must live with and it does not lie in their mouth that the Court below ought to have allowed their appeal as they were not served on each adjourned date thereafter.” (P. 32, Paras. C-E)

However in OGBUESHI JOSEPH O.G. ACHUZIA v. WILSON FIDELIS OGBOMAH (2016) LPELR-40050(SC) which was delivered a month after SIMON EZECHUKWU & ANOR (supra) there seems to be a departure. The Facts of the case as reported is:

“Upon being served with the writ of summons, the appellant as defendant, entered a conditional appearance through his counsel. The respondent who was the plaintiff filed his statement of claim on the 17th day of May, 2001. The appellant did not file his statement of defence. Simultaneously with the filing of statement of claim, the respondent filed a motion for interlocutory injunction, which was argued in the absence of the appellant and his counsel. It was then adjourned to the 23rd day of July, 2001 for ruling. On 23rd July, 2001, the learned trial judge delivered his ruling on the respondent’s application for interlocutory injunction and adjourned the case to the 9th October, 2001 for mention. Neither the appellant nor his counsel was in Court. On that date, the Court adjourned the case to the 24th October 2001 for hearing. No hearing notice was issued and served on the appellant or his counsel informing them of the date of hearing. As at 9th October, 2001 when the matter was adjourned for hearing to 24th October, 2001, the respondent did not file an application for judgment to be entered against the appellant in default of defence as required by Order 27 Rule 8 (1) of the Bendel State High Court (Civil Procedure) Rules 1998 (as applicable to Delta State). Without serving hearing notice on the appellant, the trial Court heard the case and entered judgment for the plaintiff, now respondent.

The Supreme Court was of the view that:

“It is trite that failure to serve a party in a case with a hearing notice indicating clearly when and where the Court is to sit is a fundamental irregularity which easily vitiates the proceedings, and makes it a nullity, however well conducted and decided. The defect is extrinsic to the adjudication. See the English decision in CRAIG vs RANSSEN (1943) K. B 25 at pp 262 – 263 cited and relied upon by this Court in SKEN CONSULT (NIG) LTD & ANOR v GODWIN SEKONDY UKEY (1981) 1 SC. pt at p. 15″. Per GALADIMA, J.S.C. (P. 14, Paras. A-C)

In his own contribution, His Lordship, PETER-ODILI, J.S.C. stated:

“…the requirement of fair hearing implies that each party to a dispute before a Court or tribunal must be accorded adequate opportunity to state his own side of the case under the principle of “audi alteram partem”, an immutable principle and the other leg of natural justice. This position was well expatiated in the case of Ariayefah Nwaosu vs Ibejimba Nwaosu (2000) 4 NWLR (pt. 653) 351 at 359 where it was stated as in this case in hand that the Court cannot without issuing and serving hearing notice on the party affected, proceed to abridge the time and hear evidence in the absence of the party to be affected. See also Obimonure vs Enrinosho & Anor (1966) All NLR 245 at 247 The import of service of process on the defendant is well captured in Skenconsult (Nig.) Ltd & Anor vs Sekondy Ukey (1981) 1 SC 6 wherein this Court held thus:- “The service of process on the Defendant so as to enable him appear to defend the relief being sought against him and due appearance by the party or any counsel must be those fundamental conditions precedent required before the Court can have competence and jurisdiction. This very well accords with the principles of natural justice”. What I am trying to say in effect is that when there came about that failure to serve notice of the date of hearing on the Appellant it means that the requirement of fair hearing has not been observed and the resultant decision that followed is a nullity and cannot be allowed to stand. See Wema Bank Nigeria Limited & Ors vs S. O. Odutaja & Ors (2000) FWLR (pt. 17) 138 at 142 – 143; A. C. B. Plc vs Losada Nig. & Anor (1995) 7 SCNJ 158 at 167″. (Pp. 22-23, Paras. D-F)

Having looked at these cases, I am of the view that each case will be considered based on the facts. Scarcely are two cases the same. In EASTERN BREWERIES PLC, AWO OMAMMA & ORS V. NWOKORO (2012) LPELR-7949(CA) it is stated:

“The question whether a party has been afforded adequate notice to answer the case he has to meet will depend on a careful consideration of the facts and circumstance of each case. The test to be applied in each case is an objective one based on the impression of a reasonable and fair minded observer at the trial.”

Being that the issue is non service of Hearing Notice, what then is a Hearing a Notice. It has been held that a hearing notice is just like a reminder on the other side of the pending matter where the originating processes have been served. In S.P.D.C.N. LTD V. ESOWE (2008) 4 NWLR (PT. 1076) 72 AT P. 86, PARAS. E-F it is stated:

“The service of hearing notice is aimed at informing concerned parties that proceedings will take place before a particular Judge at a particular location on a particular date and hour or so soon thereafter.” Per Gumel, JCA

This notification is normally done with service of a document titled Hearing Notice. Some Rules of court gone ahead to provide that service or notification can be done electronically. In ENL CONSORTIUM LTD v. SHAMBILAT SHELTER (NIG) LTD (2018) LPELR-43902(SC) it is stated:

“The point has to be made that the phone call mode of service would ordinarily be of good service so long as the party is provided the notice at least 48 hours before the scheduled Court date. The regularity of service is no longer jettisoned because it was made electronically as the current Rules of Court have ensured. See Order 2(c)(i) of the Court of Appeal, 2013 Rules.” Per PETER-ODILI, J.S.C. (P. 15, Paras. C-E)

It is my view that unless on the agreement of parties any notice that is less than 48 hours is not a valid notice. Even serving a hearing notice on Friday for a matter coming on Monday should not be tolerated.

The peculiar circumstance of this case is that the court made an order for hearing notice. It does appear that this order of the court was not carried out. Court orders are not made in vain and are meant to be complied with. See C. C. B. (NIGERIA) PLC VS. OKPALA (1997) 8 NWLR (PT 518) 673 AT 694; OLADIPO VS. OYELAMI (1989)5 NWLR (PT. 120) 210 AT 221. I am of the view that once the court orders for a hearing notice to be served, it has a duty to see that that order is carried out. In VICTORIA SHOLA VS EZEDIASHI OFILI & 2ORS suit no: CA/B/367A/2010 (2020) Legalpedia (CA) 23106 it is stated:

Thus, whenever a matter comes up before a Court of law for hearing, it is the duty of the Court to truly and fully satisfy itself that a party to the case was duly served and is aware that the matter is coming up before the Court that day. More importantly, therefore, it is not for the Court, trial or appellate, to assume that the party having been duly served with the Court processes in the matter should be aware of the hearing date”.

Again on the hearing notice effected on 23^rd for a matter coming up on the 24^th it is less than 48 hours and cannot be regarded as a proper or valid notice. I agree with the Appellant that her right to fair hearing was breached.

On issue 3 the Appellant contested the award of 10% post judgment sum. The Applicant is not contesting the power of the court to make the award but the power of the court to make it payable to a party not mentioned in as party to the suit. it has t be born in mind that this a Revenue Court of the State. When the court finds that a party has withheld money due to another, justice demands that such a person, be asked to pay interest on the money from the moment he is found to have withheld the money wrongly.

In this matter the Appellant was adjudged a debtor or defaulter. That being the case she is expected to pay interest on it from the moment he is adjudged a debtor till she pays the judgment sum. Generally the interest is 10% of the judgment sum. The Appellant is not contesting the authority of the trial revenue court to make the post judgment interest order. The order of the court complained about here is:

“That the defendant should pay 10% of the judgment sum to be the Registrar Environmental Court Owerri, who will remit the money to the judiciary account and bring the receipt to the court for striking out the case within 7 days of this judgment.”

It is contended that Registrar Environmental Court is not a party to the suit and should not benefit from the judgment. In the absence of any law empowering the trial revenue court to award the 10% post judgment interest to the Registrar Revenue Court and it is not one of the reliefs in the summons; I agree with the Appellant that the award is not proper in law and thus ultra vires the powers of the hon. trial revenue court.

In conclusion this appeal succeeds in part. The judgment of the trial Revenue Court is accordingly set aside.

I so hold.

I.M.Njaka

Judge

29-7-2021

HOW/373/2019 -1. EVARISTUS EDOZIEM 2. NDUBUISI EDOZIEM.V KEVIN EDOZIEM 2. IFEANYI EDOZIEM 3. VICTORIA EDOZIEM -Ruling delivered 10TH DAY OF FEBRUARY 2021- Abuse of Court Process