Can a Party Who Had an Opportunity to be Heard but Did Not Utilize It Bring an Action for Breach of Fair Hearing?

CASE TITLE: GLOBAL 2i LTD v. FEGMATECH COMMUNICATIONS LTD (2024) LPELR-62902(CA)
JUDGMENT DATE: 18TH SEPTEMBER, 2024
PRACTICE AREA: CONSTITUTIONAL LAW
LEAD JUDGMENT: JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on fair hearing.

FACTS:

This is in respect of an appeal against the judgment of the High Court of the Federal Capital Territory, held at Abuja, delivered on July 5, 2019, by BELLO KAWUY, J.

Following a disagreement between the parties on payment for a contract awarded by the Appellant to the Respondent, the Respondent took out a writ of summons at the lower Court wherein it sought the reliefs contained in paragraph 22 of the statement of claim on page 5 of the record of appeal thus:

a. The sum of N113,000,000 being the outstanding sum on the price of the job completed.

b. The sum of N100,000,000 (One Hundred Million Naira) being general damages for breach of agreement to pay for completed jobs as contained in the terms of payment.

c. N10,000,000 being fees to solicitors to recover the debt due to the refusal of the Defendant to pay the contract sum on demand by the Plaintiff.

d. Interest on the judgment debt at the rate of twenty percent per annum from the day of judgment until the final liquidation of the judgment sum.

e. Cost of this suit.

​The Appellant entered a conditional appearance and filed a preliminary objection to the action. It also filed a statement of defence and counterclaim, in response to which the Respondent filed a reply to the statement of defence and defence to counterclaim. However, on the date fixed for trial, only the Respondent was represented, upon which a hearing commenced with the evidence in chief of the sole witness for the Respondent and cross-examination was adjourned till another date. On the date fixed for cross-examination of the Respondent’s sole witness, the Appellant was once again unrepresented upon which cross-examination and defence were closed with the case adjourned for final address. After taking the final address without the presence of the Appellant, judgment was reserved till the 5th of July, 2019. In the said judgment which was subsequently delivered, the learned trial Judge outlined the facts and adduced evidence and upon a finding that the matter was under the undefended list and that the Appellant had failed to file a notice of intention to defend, entered judgment for the Respondent in terms of all its reliefs.

Dissatisfied, the Appellant appealed.

ISSUES FOR DETERMINATION:

The Court considered:

“Whether in hearing the substantive suit in the Appellant’s absence on a date fixed for the hearing of the Appellant’s preliminary objection, entering judgment against the Appellant while the matter was pending at the multi-door Courthouse for alternative dispute resolution and granting the reliefs sought by the Respondent under the Undefended List instead of considering the oral and documentary evidence adduced by the Respondent, the lower Court did not breach the Appellant’s rights to a fair hearing and occasion a miscarriage of justice.”

DECISION/HELD:

In conclusion, the Court dismissed the appeal.

RATIOS:

• CONSTITUTIONAL LAW- RIGHT TO FAIR HEARING: Principles of fair hearing; whether a party who had an opportunity of being heard but did not utilize it can bring an action for breach of fair hearing
• CONSTITUTIONAL LAW- BREACH OF RIGHT TO FAIR HEARING: How to determine breach of right to fair hearing; burden on a party alleging same
• COURT- POWER OF COURT: Instance(s) where the Court will invoke its powers under Section 15 of the Court of Appeal Act
• EVIDENCE- CROSS-EXAMINATION: Effect of failure of an adversary to cross-examine a witness
• PRACTICE AND PROCEDURE- HEARING NOTICE: Effect of failure to serve hearing notice

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