Letters of adjournment, the Supreme Court's inconsistency on essentiality of Hearing Notice and other matters arising from The Registered Trustees of the Presbyterian Church of Nigeria v John Asuquo Etim (2017) 13 NWLR (Pt. 1581) 1.
Very recently, the (Lawyers) social media was awash with broadcasts of the Supreme Court's judgement in the case of The Registered Trustees of the Presbyterian Church of Nigeria v John Asuquo Etim (2017) 13 NWLR (Pt. 1581) 1, which decision was handed-down as far back as January 2017, on the effect of non-filing of letters of adjournment addressed to a court among other things.
As much as the decision represents a welcome development in the advancement of our court-made laws especially as it tends to discourage the unethical practice of deliberate frustration of court proceedings under the tacky disguise of spurious letters of adjournments, the judgement leaves a whole lot more to ponder as would be seen shortly.
This piece shall focus on the court's ratio decidendi which propelled it to set aside the Court of Appeal's decision reported at Part 883 of (2004) 11 NWLR at page 84 on one hand and the ripple issues that have arisen from the court's land-marking decision on effect of "unfiled" letters of adjournment on the other hand.
One wouldn't however be surprised at the attendant wide-spread bandying of this decision in and out of our courtrooms as it is the "popular" practice where lawyers conveniently cite authorities once the principles suit their circumstances even where the facts are palpably differing. In Interdrill Nigeria Ltd v U.B.A Plc (2017) 13 NWLR (Pt. 1581) 52 @ 66 para B, Nweze, JSC stated that:
"This court has, often, admonished, cases are only authorities for what they actually decided in the context of the prevailing facts."
Hence, it is my view that, the apex court's decision in the case under review is not, 'one size fits all' and it should not be so abused. See Augie, JCA's (now JSC) holding in Oando Plc v Comfort Ajaigbe (2015) LPELR- 24816(CA) to the effect that:
"We must also bear in mind that each case is considered on its own merit, and there is no one-case-fits-all in our legal system. In other words, no two cases are exactly similar."
As a preliminary point, the apex court should not be wrongly quoted to have outrightly disapproved letters of adjournment which the court referred to as "a formal application" at page 40 para G while making reference to the case of Yisi Nig. Ltd v Trade Bank Plc (1999) 1 NWLR (Pt. 588) 646 even though there was nothing on record to show that the letter was assessed by the court's registry and paid for by the party concerned.
Bearing the foregoing in mind, the brief facts of the case are as follows:
The Appellant Church filed an action against John Asuquo Etim (Respondent) at the High Court of Cross River State sitting in Calabar claiming statutory right of occupancy on a piece of land in Calabar among other reliefs. The Church filed two motions (one exparte and the other on notice) along with its writ of summons on 8th December 2000 but served on the Respondent on the 14th day of December 2000.
The Appellant approached the court on the 12th day of December 2000, two days before the Respondent was served, the trial court refused to grant its exparte application but ordered the Respondent to be put on notice and set the matter for hearing of the motion on notice on 19th day of December 2000, hence the Respondent was consequently served on the 14th day of December 2000.
On the hearing date, the Respondent was absent and unrepresented. The judge after finding that he was duly served with the processes, proceeded to grant the interlocutory reliefs sought by the Appellant thereby restraining the Respondent from erecting any structure on the land in dispute.
Dissatisfied with the ruling, Mr. Etim approached the Court of Appeal, which set aside the High Court's ruling on the ground that, Mr. Etim was not given fair hearing before the orders were made. Dissatisfied with the Court of Appeal's decision, the Church also approached the Supreme Court which appeal culminated in the decision under review.
This writer observed that, from the decision, the fundamental defect of non-service of hearing notice was, unfortunately, neither expressly raised by both Counsel nor considered suo motu by the Supreme Court being a serious matter that goes to the root of the trial court's jurisdiction.
Non-service of hearing notice
Through out the judgement, the Supreme Court kept on emphasizing service of the motion on the Respondent particularly at page 23, para E-F; 29; 30 para B; 32 para A-B; 43 para C; 44 para F; 46 para G and 51 para B. Hence, the court was thus satisfied that the Respondent was duly served with the motion on notice but surprisingly the same Supreme Court at page 23, para C -D, reiterated the age-long stance of the court on non-service of hearing notices thus:
"My Noble lords, I think it is now apparently necessary to remind ourselves that, among the statutory duties placed upon the shoulder of any (trial) judge who is about embark upon hearing and determination of a matter, whether on main suit or a motion placed before his court, is that after all the preliminaries to the hearing, he must ensure that all the parties in the suit/motion are fully notified of the existence of the matter and same has been duly served with hearing notice/notices against the date fixed for hearing. Where there is no such service of the process including hearing notice, any step taken by the judge in hearing the matter is null and void which must be set aside on appeal." (Emphasis mine) Per I.T. Muhammad, JSC
Needless to add that, there is a plethora of Supreme Court, on the indispensability of service of hearing notice in court proceedings. See Ogbueshi Joseph Achuzia v Wilson Fidelis Ogbomah (2016) LPELR-40050(SC) where it was held thus:
"Failure to serve a hearing notice of date for hearing of a case on a party runs riot and violent to the principle of fair hearing as enshrined in the 1999 Constitution and any proceedings held or taken in the absence of a party who was not put on notice of the date of such proceedings is a nullity and therefore must be annulled." Per Sanusi, JSC
See also the apex court's decision in Alhaji Auwalu Darma v Ecobank Nig. Ltd (2017) 9 NWLR (Pt. 1571) 480 @ 511 para A – C, where Nweze, JSC held that:
"...hearing notice is the only legal means of getting a party to appear in court. Thus the issuance of hearing notice from day to day on the absent party is imperative...it must be emphasized that such an absent party is equally, entitled to be issued and served with hearing notice of the date of the delivery of the judgement because it is a constitutive part of the hearing of the action." (Emphasis mine)
It must however be noted that, nowhere in the 51-paged judgement is it on record that, the Respondent was served with hearing notice even when the court emphasized its fundamental nature at page 23.
Hence, contrary to the Supreme Court's verdict, we are of the respectful opinion that the whole proceedings of 19th December 2000, upon which all the appeals were predicated, were a nullity for non-service of hearing notice to notify the Respondent that the motion on notice would come up for hearing more so when there was nothing on record to show that he actually had knowledge that the motion had been set down for hearing. This, in our respectful view, amounted to denial of fair hearing.
Other matters arising from the decision on letter of adjournment
The Supreme Court, from page 34, para G to page 43 of the judgement as reported, ruled on the effect of a letter of adjournment that was not filed in a court's registry and by which decision, the apex court has not only extended the frontiers of our procedural law on adjournment of proceedings, several other appurtenant issues worthy of discourse were consequently raised in the decision.
The court, while justifying the trial court's silence on the letter of adjournment, held at page 37 para H thus:
"...as at the time the trial court sat to determine the motion on notice, nobody drew the attention of that court that there was a document (letter) filed by the respondent asking for adjournment. This perhaps was what accounted for the court not making any reference to the said document and afortiori, no reference was made by the trial court. I don't think the trial court could make reference to a document that was not placed before it." (Emphasis mine)
From the foregoing, it seems a precedent has been laid to protect and indemnify a court registrar who inadvertently or otherwise omits to inform the court of the pendency of a letter of adjournment to the detriment of the party who is not present to personally draw the court's attention to same irrespective of whether the letter was properly filed or not. In Ede v. Mba (2011) 18 NWLR (Pt.1278) 236, the Supreme Court held, per Muhammad, JSC (My Lord who coincidentally wrote the leading judgement under review) that:
"But, the most relevant question one would pose here is: should this Court allow an unsuspecting litigant to suffer as a result of the mistakes/omissions occasioned by the Registry staff? Certainly, No! I repeat and adopt what Olatawura, JSC (of blessed memory) said in the case of Cooperative and Commercial Bank Plc v. Attorney-General Anambra State & Anor (1992) 8 NWLR (Pt. 261) 528 at p 561 that:
"It will be contrary to all principles to allow litigants to suffer the mistake of the court Registry. In other words, the Court will not visit the "sin" of the court's registry, on a litigant or his counsel, unless, it was shown that the litigant and/or his counsel was a party thereto or had full knowledge of the "sin" or mistake and encouraged or condoned the said act. Therefore, on the authorities, justice, equity, fairness and good conscience, must persuade me, to hold further, that this appeal deserves to succeed and it in fact does."
As I have given a glimpse of some of the facts relied upon by the applicants above, I am of the opinion that once a party, such as the applicants herein, has performed creditably his own portion of responsibility of what he is required by the law to fulfill, in instituting an action, he should not be made to suffer the failure, blunders, or omissions of the court registry. It will be inequitable to do so. By our law and practice, once a prospective party has properly made his claim as required by law and delivered same in the registry, what is left to be done such as sorting out of the processes, giving them identification numbers for ease of reference; distributing such processes to the various Justices is the domestic responsibility of the registry. The party has no more say on it except what the court/registry requires of him to do. Thus, it will be unconscionable and against the interest of Justice to penalize such a party for such errors, lapses, mistakes or accidental slips or omissions by administrative or clerical functions of the registry." (Emphasis mine)
Although the court reproduced contents of the letter verbatim but still went ahead to hold at page 39 that "The letter does not bear semblance of an official communication between the learned counsel and the trial court official" in spite of the fact that it was address to the "Registrar, High Court No. 7, Calabar"
From the foregoing, could it be said that the apex court favours a letter of adjournment to be addressed to the judge rather than the court registrar? Your guess is as good as the writer's in this regard.
Service of adjournment letters on the hearing date
On impropriety of service of letter of adjournment on a date fixed for hearing, the court again held at page 30 – 40 that:
"This letter, as it appears, was simply dumped on the registry of the trial court on the very day the motion on notice was to be heard. Was it not really meant to arrest the proceedings of that day? I positively think so. And no court of law worth its salt, can allow itself to fall into such a trap, which is all out to cause an unjustifiable delay and denial of justice. For whatever purpose that letter was written to the trial court's registry, the other party i.e. the appellant ought to have been served with a copy thereof." (Emphasis mine)
From the foregoing, the court seems to have made it clear that, a letter for adjournment must be served on the other party before it can have any effect in law, just like every other application and where such letter is brought on the day of hearing without service on the other party, it is tantamount to a new phenomenon known as "arrest of proceedings"
Hence, it now seems that, any court that adjourns a matter on the strength of a letter of adjournment which was brought on the hearing date and never served on the adverse party has violated fundamental procedural rule as laid down by the Supreme Court in this case.
Nature of letter of adjournment
The court held at page 41 that:
"It is important to point out as well that, if a document is meant for the court to take note and act there on, rules of court have made provisions for formal filing of such document or documents with the registry of the court, for which nominal fee is payable upon assessment by the registry staff who authenticate the filing of that document and proceed to file same for the court's attention."
The apex court's ruling however finds expression in the Lagos High Court Civil Procedure 2012 at Order 1 Rule 2(3) where "Court Process" is defined to include:
" Writ of summons, originating summons, originating summons, originating process, notices, petitions, pleadings, orders, motions, summons, warrants and all documents or written communication of which service is required"(Emphasis mine)
On the whole, the novel principle laid down by the supreme court in the case under review would, undoubtedly improve our practice and procedure and it would be desirable if the heads of court can proactively and comprehensively review their various rules to accommodate provisions on letters and/or written applications for adjournment in line with the Apex Court's lead in a bid to discourage frivolous letters of adjournment written to frustrate and delay the wheels of justice.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.