MRS RISIQUAT F. AIYEDUN V. REGISTRAR, UPPER AREA COURT, ILORIN & ORS. (2016)

Background

Mrs Risiquat F. Aiyedun commenced proceedings before the Upper Area Court, Ilorin, concerning the estate of her late husband, Abdul-Ganiyu Olushola Aiyedun. She sought declarations that the estate should be distributed according to Islamic law, an account of the deceased’s properties, distribution among the lawful heirs, and an injunction restraining the respondents from dealing with the estate except in accordance with the applicable law of succession.

During the proceedings, the Upper Area Court made orders connected with the sale of a landed property belonging to the deceased’s estate, described as NITEL Fund Estate, Awolowo Road, Ikorodu, Lagos State. The court appointed Mr Oloyede Oyediran as auctioneer after the parties had apparently been unable to agree on an auctioneer. The property was subsequently sold, and on 21 March 2012 the auctioneer’s report of sale was presented to and approved by the Upper Area Court.

The appellant contended that she and her counsel were absent from the material proceedings because hearing notices had not been issued or served on them. In particular, she challenged the proceedings of 2 November 2011, when the auctioneer was appointed, and 21 March 2012, when the sale was presented for approval. She consequently commenced a fundamental-rights action before the High Court of Kwara State, relying principally on section 36(1) of the 1999 Constitution, seeking declarations that the proceedings and sale violated her right to fair hearing and orders quashing the proceedings and setting aside the sale. The High Court dismissed the application. She appealed to the Court of Appeal.

Issues

1. Whether the appointment of the auctioneer and the approval of the sale without the participation of the appellant or her counsel violated the appellant’s constitutional right to fair hearing.
2. Whether any procedural defect was cured by the subsequent presence and conduct of the appellant’s counsel, including the alleged ratification of the sale.
3. Whether the preliminary objections challenging the competence of the originating process, its lack of a date, and the record of appeal were sustainable.

Ratio Decidendi

The Court of Appeal held that section 36(1) of the Constitution guarantees a person a fair hearing in the determination of civil rights and obligations. Fair hearing incorporates the principles of natural justice, including the rule that no person should be condemned unheard. Where a party is absent when a matter is adjourned or a material step is fixed for hearing, the court must ascertain whether that party was served with hearing notice or deliberately absented himself or herself.

Hearing notice is the process by which a party is informed of the date fixed for proceedings when the party was not present when the date was chosen. Service is fundamental and constitutes a condition precedent to the exercise of jurisdiction in respect of the affected proceedings. Failure to serve a party who was not present deprives the court of jurisdiction to proceed in a manner that affects that party’s rights.

The court further held that an allegation of denial of fair hearing must be established by the complaining party. In this case, the appellant discharged that burden by reference to the record, which showed repeated adjournments during which neither she nor her counsel was present and no hearing notices were ordered or served on them. The absence was particularly material on the dates when the auctioneer was appointed and when the sale was approved.

The court rejected the argument that the participation of counsel on some other date amounted to waiver or ratification of the earlier denial of fair hearing. A party’s attendance at previous proceedings does not extinguish the right to receive notice of later proceedings fixed in the party’s absence. Nor can counsel’s subsequent participation validate proceedings that were fundamentally tainted by lack of notice and want of jurisdiction.

Court Findings

The preliminary objections were dismissed. An originating motion that is duly filed and paid for does not become incompetent merely because it is undated. The court also held that the originating process was sufficiently signed. The name of Chief Henry Akunebu appeared above the name of his law firm, and because he was a registered legal practitioner, that manner of signing satisfied the applicable procedural requirement.

With respect to the record of appeal, the court stated that the settlement, certification and transmission of the record are duties primarily placed on the registrar under the Court of Appeal Rules, 2011. The record is presumed correct. A party challenging its accuracy must swear to an affidavit identifying the alleged omissions and serve it on the relevant court or registrar. The fifth respondent failed to follow that procedure and therefore could not successfully challenge the record by preliminary objection.

The Court of Appeal also affirmed that the High Court had jurisdiction to entertain the fundamental-rights application. Section 46 of the Constitution gives a person alleging a contravention of a Chapter IV right access to a State High Court for redress. The fact that the underlying dispute involved Islamic personal law did not deprive the High Court of jurisdiction over the alleged constitutional breach.

Conclusion

The appeal was allowed. The ruling of the High Court of Kwara State delivered on 7 November 2012 was set aside. The entire proceedings of the Upper Area Court, Ilorin, in suit No. UAC/CV/FM/14/2010 were quashed because the appellant was denied fair hearing through the failure to serve hearing notices. The matter was remitted to the Chief Judge of Kwara State for trial de novo before another judge, other than Y. A. Abdul-Hamid. No order was made as to costs.

Significance

The decision reinforces the constitutional and jurisdictional importance of hearing notices in Nigerian civil procedure. A court cannot assume that a party who attended earlier proceedings knows every subsequent adjournment. Where a party is absent when a material date is fixed, the court must ensure proper notice before taking steps affecting that party’s property or civil rights. The case also illustrates that a breach of fair hearing is not a mere technical irregularity: where the breach affects the proceedings substantially, the resulting orders and consequential sale may be declared null and the proceedings set aside in their entirety.