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 administered and distributed according to Islamic law, an account of the deceased’s properties, distribution among the rightful heirs, and an injunction restraining the respondents from dealing with the estate except in accordance with the applicable law. The estate included landed property known as NITEL Fund Estate on Awolowo Road, Ikorodu, Lagos State.

During the proceedings, the Upper Area Court made orders relating to the sale of the property to satisfy outstanding debts allegedly owed by the deceased. On 2 November 2011, in the absence of the appellant and her counsel, the court appointed Mr Oloyede Oyediran as auctioneer. The appellant contended that neither she nor her counsel had been served with hearing notices for the relevant adjourned dates. The auctioneer subsequently reported a sale transaction to the court, which was approved or sanctioned on 21 March 2012, again in circumstances in which the appellant was absent.

The appellant therefore applied to the High Court of Kwara State under the Fundamental Rights (Enforcement Procedure) Rules, 2009 and section 36(1) of the Constitution, seeking declarations that the failure to serve hearing notice and the resulting sale proceedings violated her constitutional right to fair hearing. She also sought orders quashing the Upper Area Court proceedings, setting aside the order of sale and nullifying the consequential sale. The High Court dismissed the application on 7 November 2012. The appellant appealed to the Court of Appeal.

Issues

1. Whether the appointment of the auctioneer and the order approving the sale, made without the participation of the appellant or her counsel and without service of hearing notices, breached the appellant’s constitutional right to fair hearing.
2. Whether any defect in the sale procedure was cured by the participation and alleged ratification of the proceedings by counsel who appeared for the appellant on 21 March 2012.
3. Whether the originating motion was incompetent because it was undated or insufficiently signed, and whether the record of appeal was incomplete.

Ratio Decidendi

The Court of Appeal held that section 36(1) of the 1999 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, the court must ascertain whether the party was duly served with notice of the subsequent hearing. Hearing notice is the process by which a party is informed of the date fixed for further proceedings when the party was not otherwise aware of that date.

Service of hearing notice is fundamental and constitutes a condition precedent to the exercise of jurisdiction over a party who is absent. A court cannot validly proceed to determine an issue affecting that party’s rights where the required notice has not been served. The appellant’s prior participation in some proceedings did not remove her entitlement to notice of later proceedings fixed in her absence. Nor did the subsequent attendance of her counsel, after the prejudicial steps had already been taken, amount to a waiver of the constitutional guarantee or validly cure the denial of a prior opportunity to be heard.

The court further held that an originating process prepared by a legal practitioner must be signed by the practitioner. However, writing the practitioner’s registered name above the name of the law firm is sufficient compliance where the identity of the legal practitioner is clear. The originating motion signed in the name of Chief Henry Akunebu was therefore competent. An undated process that has been duly filed and for which filing fees have been paid is not, for that reason alone, invalid.

On the record of appeal, the Court held that the settlement, certification and transmission of the record are duties of the registrar of the lower court. The record enjoys a presumption of correctness. A party challenging its accuracy must swear to an affidavit identifying the alleged omissions or inaccuracies and serve it on the relevant court or registrar. The fifth respondent failed to follow that procedure and could not properly challenge the record by preliminary objection.

Court Findings

The Court closely examined the proceedings of the Upper Area Court between April 2010 and March 2012. It found that the matter had been adjourned on numerous occasions, including 2 November 2011 and 21 March 2012, without any indication that hearing notices had been ordered or served on the appellant or her counsel. The appellant and counsel were consequently excluded from the appointment of the auctioneer, the process leading to the sale, and the application for approval of the completed sale.

The Court rejected the respondents’ argument that the appellant’s absence demonstrated indolence or that her counsel’s later participation ratified the earlier procedure. The decisive point was not simply that the appellant had missed some sittings, but that the trial court failed to establish that she had been notified of the dates on which her property rights were to be affected. The breach was substantial because the proceedings concerned the disposition of estate property and directly affected the appellant’s civil rights and obligations.

All preliminary objections were dismissed. The Court concluded that the High Court had erred by refusing to set aside proceedings conducted in violation of the appellant’s right to fair hearing.

Conclusion

The appeal was allowed. The ruling of the High Court of Kwara State dated 7 November 2012 was set aside. The proceedings and orders of the Upper Area Court, Ilorin, in suit No. UAC/CV/FM/14/2010 were quashed in their entirety. 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 as to costs was made.

Significance

The decision reinforces the constitutional and jurisdictional importance of hearing notice in Nigerian civil procedure. It confirms that a court must not assume that a party deliberately absented herself merely because she was absent from court; it must first verify service. The judgment also illustrates that procedural fairness cannot be replaced by retrospective ratification where a party was deprived of the opportunity to participate at the critical stage at which her rights were determined. In addition, the ruling provides useful guidance on the validity of undated but duly filed processes, the meaning of a lawyer’s signature on court processes, and the proper method for disputing the accuracy of an appellate record.