By Oliver Azi
Towards the end of last month, the Court of Appeal gave judgment in AYEBATOINPRE v. EGBA (2024) 11 NWLR (Pt. 1948) 127 on the necessity of serving a notice of hearing by the lower court.
In the said case, the Bayelsa State High Court “SHC” had given judgment in a suit filed by the plaintiff “Egba” without considering the need to issue a notice of hearing to the plaintiff (now appellant) in the suit.
The defendant (now respondent) had, in response to the writ of summons/statement of claim filed by the appellant, filed a statement of defense or counterclaim. However, in pursuing the case, the plaintiff had persistently not shown up on the days the case came up for hearing. Becoming tiring, the trial judge had squashed the writ of summons/statement of claim and given judgment based on the counterclaim, as filed by the defendant.
The appellant, realizing this, filed an appeal before the court of appeals, and the issue for determination brought before the law lords was:
Whether the trial court’s failure to issue and serve hearing notice on the appellant for the days the suit came up for hearing of the respondents’ counter-claim and the denial of the appellant or his counsel of the opportunity to cross-examine the witnesses of the respondents did not breach the appellant’s fundamental right to a fair hearing.
In determining the case, Waziri JCA had hinged his judgment on the principle of fair hearing as enshrined by the tenor of Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, “The Constitution,” and held that fair hearing is not a technical concept of law.
The position of the court was that, failure to serve the notice of service and the absence of proof thereof, deny the respondent/defendant a right to seek, enforce, or receive judgment. This case again, shows the truth and imperativeness of a proof of service. It was admonished that the court must go the extra mile to satisfy that a fair hearing or fair trial had been served so that the procedure did not violate one of the twin pillars of natural justice, as shown in Richard MBA & Ors v. ULA & Ors [2020] Legalpedia (CA).
Legal Researcher and writer Oliver Azi is a law graduate from the University of Jos and can be reached via email at: oliverazi20@gmail.com or LinkedIn at: www.linkedin.com/in/oliver-azi-76b323182
Source: Thenigerialawyer
