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Daniel Tayar Trans. Ent. Ltd. vs. Busari

DANIEL TAYAR TRANS. ENT. CO. NIG. LTD.

V

ALHAJI LIADI BUSARI

LAMIDI YUSUF DARAMOLA

(For themselves and as representatives of Ashade family of Iba town)

COURT OF APPEAL

(LAGOS DIVISION)

MUSA DATTIJO MUHAMMAD JCA ( Presided )

CLARA BATA OGUNBIYI JCA (Read the Lead Judgment)

MUHAMMED LAWAL GARBA JCA

CA/L/371/02

MONDAY, 16TH MAY, 2005

FAIR HEARING - Principle of - Fundamental nature of - Nullity of proceedings conducted in breach of

JUDGMENT AND ORDERS - Judgment reached in defiance of provisions of rules of court, non-compliance with which results in breach of fundamental rights - Nullity of

LEGAL PRACTITIONER - Counsel - Need for to be cautious of the language used in expressing disagreement with court or decision of court

NOTABLE PRONOUNCEMENT - Counsel - Need for to be cautious of the language used in expressing disagreement with court or decision of court

PRACTICE AND PROCEDURE - Hearing notice - Fundamental nature of issue of

PRACTICE AND PROCEDURE - Hearing notice - Issuance and service of - How proved

PRACTICE AND PROCEDURE - Rules of court, non-compliance with which results in breach of fundamental rights - Judgment reached in breach of - Nullity of

Issues:

1.              Whether failure to issue and serve the defendant/appellant a hearing notice of trial of the suit after a long and series of intervening events including the striking out of the suit for want of diligent prosecution at a certain stage, after the lodgment of an interim appeal, interim and relistment behind the appellant, does not make the secret default trial a nullity and should be set aside.

2.              Whether the unilateral trial in the circumstances was not in breach of fair hearing and the principle of audi alteram partem and should be set aside.

3.              Whether the appellant’s appeal arising from the trial court’s ruling of 12 July, 2002 on the appellant’s application of 19 March, 2002 to set aside the judgment of the court delivered in November 2001 ought not to be dismissed on the basis that there was no judgment on record entered by the trial High Court in November 2001.

Facts:

In a suit instituted in 1994, the respondents who were the plaintiffs before the trial court instituted an action against the appellant claiming entitlement to right of occupancy to a parcel of land in the possession of the appellant.

In the course of the trial and after the appellant’s counsel had crossexamined the respondents’ witness, appellant filed a summons on notice on 30th July, 1998 seeking an order to strike out the respondents’ claim as offending the doctrine of res judicata. The application was heard and dismissed on 18th December, 1998. Appellant’s application for leave to appeal and stay proceedings at the High Court was unsuccessful, yet he appealed against the ruling of 18th December, 1998, which appeal was dismissed by the Court of Appeal on 30th June, 2003.

While the appeal was going on at the Court of Appeal, the main suit continued at the trial court. On 25th October, 2000 the lower court struck out the suit, which was subsequently relisted consequent to the same court’s order made on 6th November, 2000. Judgment was finally delivered at the conclusion of the trial on 20th December, 2001. Thereafter, the appellant on 19th March, 2002 filed an application seeking to set aside the judgment as default judgment. The appellant swore to affidavit evidence in support of the said application showing intentional and deliberate forsaking or abandonment of the proceedings on the ground that the trial court lacked jurisdiction to hear the case. The trial court in its ruling refused the application. The appellant has therefore appealed to the Court of Appeal against the ruling. The Court of Appeal considered the effect of failure to serve hearing notice on the appellant before the trial court continued with the trial.