Duty of Court to Serve Hearing Notice on Parties Who Were Absent When a Case Was Adjourned- Heritage Bank v. Awolesi

CASE TITLE: HERITAGE BANK v. AWOLESI (2022) LPELR-57732(CA)

JUDGMENT DATE: 9TH JUNE, 2022

PRACTICE AREA: PRACTICE AND PROCEDURE

LEAD JUDGMENT: PETER OYINKENIMIEMI AFFEN, J.C.A.

SUMMARY OF JUDGMENT:

INTRODUCTION:

This appeal borders on the Service of Hearing Notice.

FACTS:

This appeal is against the ruling of the High Court of Lagos State delivered on 26/3/09 by Marsh, J.

The defunct Owena Bank Plc which initially metamorphosed into Omega Bank Plc, and subsequently to Spring Bank Plc before eventually emerging as Heritage Bank Limited, the Appellant granted an N25m Warrant Refinancing Facility (WRF) as well as an N15m Overdraft Facility (OD) to Continental Commodities Limited on the terms and conditions set out in an Offer of Credit Facility dated 7th May 1999. The facilities were secured inter alia by a Deed of Legal Mortgage between or more appropriately among Continental Commodities Limited as “Borrower”, Olumiyiwa Awolesi who was substituted by the Respondent as “Surety”, and the Bank as the lender. The Surety mortgaged a property situated at 8 Agbaoku Street, off Opebi Road, Ikeja, Lagos and was covered by a certificate of occupancy in favour of the Bank.

However, the facilities were not repaid as agreed, whereupon the Bank initiated Suit No. ID/559M/2004 seeking payment of the mortgage debt or sale of the mortgaged property.

The learned trial judge Dada, J. on 21/11/05 delivered a ruling (judgment) in favour of the Appellant. Subsequently, the Respondent filed an application dated 17/4/07 seeking to set aside the ruling (judgment) delivered on 21/11/05. The matter was however reassigned to L. G. A. Marsh, J., who granted the application filed by the Respondent. Thus, the ruling delivered by Dada, J. on 21/11/05 was set aside. Dissatisfied, the Appellant filed a Notice of Appeal at the Court of Appeal contending that the hearing notice was not served on him.

ISSUES FOR DETERMINATION:

The Court of Appeal determined the appeal on the sole issue thus:

“Whether from the circumstances of this case, there were deliberate acts of the Respondent to prevent the Appellant from having the knowledge of the proceedings before Hon. Justice L. G. A. Marsh particularly the proceedings of 12th February 2009 which resulted in the ruling of 26th March 2009 and thereby deprived the Appellant a fair hearing?”

.ALSO READ: VALIDITY OF A CONTRACT ENTERED INTO BY JOINT ADMINISTRATORS OF AN ESTATE WITHOUT THE CONCURRENCE OF ALL THE REPRESENTATIVES

DECISION/HELD:

In conclusion, the appeal was allowed and the ruling of the trial High Court was set aside for being a nullity. The Court of Appeal directed the Chief Judge of Lagos State to reassign the Respondent’s motion dated 17/4/07 to another Judge of the High Court of Lagos State for rehearing.

RATIOS:

• CONSTITUTIONAL LAW – RIGHT TO FAIR HEARING: Fundamental nature of the right to a fair hearing and test to determine breach of same; effect of breach of the right to a fair hearing
• PRACTICE AND PROCEDURE – HEARING NOTICE: Effect of failure to serve hearing notices
• PRACTICE AND PROCEDURE – HEARING NOTICE: Importance of service of hearing notice on the jurisdiction of Court; duty of Court to ensure service of hearing notice on a party absent in Court
• PRACTICE AND PROCEDURE – HEARING NOTICE: Duty of Court to serve hearing notice on parties who were absent when a case was adjourned; effect of failure