ISSUES

Whether the Court of Appeal had judicially, judiciously and properly exercised its discretion in dismissing the defendants' appeal having regard to all the circumstances of the case?

Whether the appellants had been given fair hearing by the Court of Appeal in dismissing their appeal for non-appearance particularly when the record of the Court of Appeal did not show that the appellants and their Counsel had been served with the Hearing Notice of the appeal?

FACTS

As plaintiff in the High Court, the respondent had instituted action in a representative capacity laying claim over the land in dispute between the parties at Aje Farm in Oyan. He sought relief including a declaratory order that the respondent was entitled to a Statutory Certificate of Occupancy in respect of the land. According to the respondent, the land had been granted to his ancestors 200 years ago. At some point, the respondent's ancestor granted permission to the appellant's father, to farm on the disputed land. The respondent alleged further that the appellant's father then laid claim to ownership of the land.

The High Court granted the declaratory order sought by the respondent, which led to an appeal by the appellants to the Court of Appeal. The Court of Appeal dismissed the appeal for want of diligent prosecution. At the relevant time, the appellants had no brief of argument in the appeal, because their Counsel had withdrawn an incompetent brief which he had filed. A replacement brief was not filed as the appellant's Counsel was hospitalised and then died soon afterwards. When the appeal was dismissed for want of diligent prosecution, the appellants were absent, because they had not been served with Notice of the Hearing.

In appealing to the Supreme Court against the dismissal of their appeal, the appellants contended that the Court of Appeal should have adjourned the appeal or struck it out. They complained that the court should not have dismissed the appeal for want of diligent prosecution because unknown to the court, the Counsel for the appellants had died.

HELD (Unanimously allowing the appeal)

1.      On a litigant's responsibility for the fault of his legal Counsel

A proper brief was not filed by the appellants' Counsel for reasons set out above. That led the Court of Appeal to conclude that the appellants had not taken any steps indicative of an intention to pursue the appeal. The present Court pointed out that the court does not normally punish a litigant for the mistake of his Counsel. Per Onu, JSC, at page 473.

2.      On the constitutional right to a fair hearing

Section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 (now Section 36(1) of the 1999 Constitution of Nigeria) provides that in the determination of his civil rights and obligation, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal. This accords with the principles of natural justice.

Any judgment or ruling involving a breach of the constitutional provision of a fair hearing will not be allowed to stand on appeal. Per Onu, JSC, at page 473.

3.      On the court's duty before dismissing a matter when there is no appearance by one of the parties.

The court has a duty to examine the record to determine whether the parties had been served with Notice of Proceedings but chose to absent themselves and thereby fail to exercise their right to a fair hearing. As the Court of Appeal in this case had failed in this duty, the appellants could not be said to have obtained a fair hearing. Per Onu, JSC, at page 473.

Akin Oladimeji Esq. for the appellants.

Respondent not represented.

The following cases were referred to in this judgment:

Nigeria

Adigun v Attorney-General of Oyo State (1987) 1 NWLR (Part 53) 678

Ahmadu v Salawu (1974) 1 All NLR (Part 2) 318

Akinyede v The Appraiser (1971) 1 All NLR 162

Aladetoyinbo v Adewunmi (1990) 6 NWLR (Part 154) 98

Amadi v Thomas Aplin Co (1972) All NLR 41

Bello Akanbi & 3 others v Mamudu Alao & another (1989) 5 SC 1; (1989) 3 NWLR (Part 108) 118

Bowaje v Adediwura (1976) 6 SC 143

Ceekay Traders Ltd v General Motors Co Ltd (1988) 3 NWLR (Part 82) 347

Donatus Ndu v The State (1990) 7 NWLR (Part 164) 550

Ex parte Obinyan (1973) 12 SC 23

Iroegbu v Okwordu (1990) 6 NWLR (Part 159) 649

Kotoye v CBN (1989) 2 SC (Part 1) 1, (1989) 1 NWLR (Part 98) 419

Mohammed & another v Olawunmi (1990) 2 NWLR (Part 133) 485

Ntukidem v Oko (1986) 5 NWLR (Part 45) 909

Nwokoro v Onuma (1990) 3 NWLR (Part 136) 22

Olatunbosun v NISER (1988) 3 NWLR (Part 80) 25

Otapo v Sunmonu (1987) 2 NWLR (Part 58) 605

Oyeyemi v Commissioner for Local Government (1992) 2 NWLR (Part 226) 666

Paul Unongo v Aper Aku & 3 others (1983) 11 SC 129

Ramoni Ariori & others v Muraimo Elemo & others (1983) I SC 13

Urhata v Menta Ltd (1968) NMLR 55

Foreign

Sheldon v Bromfield Justices [1964] 2 QB 573

The following statutes were referred to in this judgment:

Nigeria

Constitution of the Federal Republic of Nigeria 1979: Ss 33(1); 236

Constitution of the Federal Republic of Nigeria 1999: Ss 36(1); 236(1)

Onu, JSC (Delivered the Leading Judgment):- This is an appeal against the judgment/order of the Court of Appeal holden at Ibadan in Suit No CA/1/122/89 dated 19 January 1994. The respondent therein as plaintiff, had instituted the action in a representative capacity in the High Court of Osogbo Judicial Division of Oyo State against the appellants who were defendants, claiming the following reliefs:-

"(a) Declaration that the plaintiff is entitled to statutory certificate of occupancy in respect of a piece of land situate, lying and being at Aje farm land near Oyan town in Odo-Otin Local Government Area of Oyo State.

(b)     N500, special and general damages for trespass committed by the defendant on the land; and

(c)     Injunction restraining the defendants from further acts of disturbance of the plaintiff and his family members on the land."

Pleadings having been duly ordered, filed and exchanged by the parties, the case went to trial before Sijuade, J, as he then was, at the Osogbo Judicial Division of the then Oyo State (now Osun State) High Court. After hearing, Counsel on both sides addressed the court. The learned trial Judge in a considered judgment dated 19 January 1994 granted only the declaration sought by the respondent while dismissing the reliefs for damages for trespass and injunction.

The appellants, being dissatisfied with the said judgment, filed their Notice of Appeal to the Court of Appeal sitting at Ibadan premised on four grounds.

Facts of the case

The plaintiff/respondent's case

For the plaintiff/respondent's, the facts of the case were as follows:-

The respondent of Laojo Family of Oyan, brought this action in a representative capacity laying claim over the land in dispute between the parties at Aje farm in Oyan more appropriately described and set out in Survey Plan No OG. 5/85 drawn by S Akin Ogunbiyi, Licensed Surveyor:-

That it was granted to Ademota and Ajiboye, the ancestors of the plaintiff by their father, Oba Olusunle, over two hundred years ago. The ancestors of the plaintiff/respondent took possession and started to cultivate it. The descendants of the ancestors thereafter inherited the land in dispute.

It was further demonstrated that the members of Laojo family grew Kolanuts and other economic crops on the land, which is bounded by Gbebikan, Danakale, Ade and Ayika families as boundary neighbours. They (the Laojo family) then contended that Gbadamosi Aroyehun granted permission to Ogundoyin, the father of the defendants/appellants to farm on the land in dispute. That Ogundoyin who paid Ishakole for the land not only later stopped but laid claim of ownership to the land in dispute, having destroyed 21 palm trees and three Kolanut trees, property of the respondent.

The defendants/appellants' case

For the defendants/appellants, the facts of the case were as follows:-

Their claim was that the land in dispute and the land allegedly granted to them (appellants) was owned by them as clearly reflected or described in the Survey Plan No GCS/278/OY 85 produced and drawn by Bode Adeaga, Licensed Surveyor. The land, they contended, was settled upon by one Olagbemisoye, their ancestor as virgin land about 250 years ago. Tracing their genealogy, they asserted that Olagbemisoye begat Esorun Adebiyi and Ogundoyin their ancestor, adding that other members of their family farmed on the land; adding that when in 1974, Salihu Oriade made a demand for N1,280 for Ishakole from Ogundoyin but Ogundoyin denied liability. Oriade thereupon instituted an action against Ogundoyin. Ogundoyin, it was explained, granted a portion of his land to the respondent because they were in-laws.

Ipon stream, it was argued, is the natural boundary between the respondent and the appellants. It was the appellants' contention that the respondent belonged to Obatire-joye family and not Laojo. The appellants removed five palm trees which were their own on their farm.

Facts relevant to this appeal

i. The Counsel for the appellants, it was shown, was one Mr E.A. Popoola whereas the appellants themselves were shown to be also appellants in the lower court. Having perfected all the conditions of appeal from the High Court, Oshogbo, the late Mr E.A. Popoola learned Counsel, it was stated, moved the lower court on 5 February 1990, for the following orders:-

"(a)    For an order for an enlargement of time to file a written brief in this appeal.

(b)     For leave to amend and file additional grounds of appeal which is attached to the affidavit in support of Motion and marked Exhibit 'A'.

(c)     An order deeming the additional grounds of appeal as properly filed and served."

ii. By an order dated the same day (5 February 1990) leave for extension of time to file appellants' brief and leave to file the additional grounds of appeal were granted and the appellants' brief to be filed within three weeks of the said order.

iii. Grounds II, III, V and VI as additional grounds of appeal to the lower court were filed on 23 February 1990.

iv The respondent's brief dated 27 March 1990 was filed on 30 March 1990.

v Next came the date for the hearing of the appeal before the court below on 29 March 1993 but which never took place as can be gleaned from the following proceedings recorded by the court with Counsel for both sides present and participating vide page 90 of the record:-

"Court: The brief argued grounds of appeal. Do you concede that the appellants' brief is incompetent?

Answer: I concede that the appellants' brief is incompetent. I filed the appellants' brief on 23 December 1990.

Mr Popoola: applies to withdraw the appellant's brief so that I may prepare a proper brief. I also ask for adjournment.

Abolade: If the court is disposed to grant an adjournment I will be asking for costs.

Court:                   The appellants' brief filed on 23 February 1990 is struck out as being incompetent. The appeal is adjourned to 13 September 1993 with N300 costs to the respondent."

vi. A fresh Hearing Notice dated 9 September 1993 was issued before 13 September 1993 to which date the appeal was adjourned in court while Counsel were present. The Hearing Notice of 9 September 1993 re-fixed the appeal for 19 January 1994. Unfortunately, the appeal did not come up on 13 September 1993 and there was no record of proceedings of the appeal for 13 September 1993. The Hearing Notice of 9 September 1993 re-fixing the appeal for 19 January 1994 was not served on the appellants nor on the Counsel for the appellants and the appellants had no Notice that the appeal was to come up on 19 January 1994.

vii. The Counsel for the appellants, Mr E.A. Popoola, was hospitalised and he died at Oshogbo State Hospital on Saturday 3 July 1993, even before the Hearing Notice for 19 January 1994 was issued.

viii. On 19 January 1994, the court below presided over by G.A. Oguntade, JCA dismissed the appellants' appeal for want of diligent prosecution although no proof of service was available to the court in the appeal filed and all the parties and their Counsel were absent from court.

ix. The appellants were dissatisfied with the ruling of the court below and took steps to appeal against the ruling.

x. Before the appellants knew that their appeal was dismissed, however, time had run out against them. Albeit, the appellants on 1 June 1995 obtained orders from the Supreme Court for:-

i. Extension of time within which to apply for leave to appeal.

ii. Leave to appeal and

iii. Extension of time within which to appeal.

The appellants thereafter filed their Notice of Appeal dated 12 July 1995, upon the said ruling while in the meantime, fulfilling the conditions of appeal within time.

Grounds of appeal

The two grounds of appeal filed by the appellants in this appeal are as follows:-

1.      The learned Justices of the Court of Appeal misdirected themselves in law when they proceeded to make an order of dismissal in the circumstances of the appeal instead of adjourning it or striking it out.

Particulars of misdirection

(a)     Both parties and their Counsel were absent from court on 19 January 1994, the day for which the appeal was re-fixed for hearing.

(b)     No Hearing Notice was served on the appellants or their Counsel.

(c)     The order of dismissal made by the learned Justices of Court of Appeal was a wrong exercise of their judicial discretion.

(d)     The grant of adjournment or the striking out of the appeal could be compensated by award of costs.

(e)     By dismissing the appeal, the appellants were not given opportunity of being heard before they were shut out of the court without legal redress.

(2)     The learned Justices of the Court of Appeal erred in law in dismissing the appeal for want of diligent prosecution.

Particulars of errors

(a)     Upon the observation of the court on 29 March 1993, the Counsel for appellants conceded that the appellants' brief was incompetent -he applied to withdraw the brief.

(b)     The Counsel for the appellants indicated his willingness to file a proper brief.

(c)     The said Counsel was not seen to give him a hearing before the appeal was dismissed.

(d)     The dismissal order was based on assumed consideration, unknown to the learned Justices of the Court of Appeal that the Counsel was dead.

(e)     The order of dismissal was not applied for by the respondent who himself, with his Counsel, was not in court to apply for such order."

Issues for determination

While the appellants formulated two issues for the determination of this Court, the respondent submitted an only issue as arising for determination.

Appellant's two issues First issue

Whether the Court of Appeal had judicially, judiciously and properly exercised its discretion in dismissing the defendants' appeal having regard to all the circumstances of the case?

Second issue

Whether the appellants had been given fair hearing by the Court of Appeal having regard to the non-appearance of the appellants and their Counsel particularly when the record of the Court of Appeal did not show that the appellants and their Counsel had been served with the Hearing Notice of the appeal?

Respondent's lone issue

Whether the Court of Appeal was right to have dismissed the case when no brief was filed and no application for extension of time to do so made?

In my consideration of this appeal, it is my intention to adopt the two issues distilled by the appellants to enable me to adequately dispose of the matters in contention. It was contended on the respondent's behalf that as from 29 March 1993 when the court below struck out the appellants' brief for incompetence and the case was thereafter adjourned to 13 September 1993 at their Counsel's instance to enable him to file a fresh brief, the fact that the appellants did not utilise the 60 days available to them pursuant to Order 6, rule 2 of the Court of Appeal (Amendment) Rules 1981 as amended by the Court of Appeal (Amendment) Rules 1984, to do so, militated against them on the expiring of their time by 28 May 1993. The appellants reply that as there was no court sitting on 13 September 1993 to which the appeal was adjourned when the appellants were expected to attend then, the Hearing Notice of 9 September 1993 superseded that of 13 September 1993, thus warranting circumstances:-

(a)     That the appellants would come up with an application for extension of time within which they could comply with the order of court with good and substantial reasons under Order 3, rule 4 of the Court of Appeal Rules 1981, as amended.

(b)     That the absence of the two parties and their Counsel on 19 January 1994 could arouse suspicion of an untoward event that if known, could be accepted as also being good and substantial reason.

(c)     The fate of the fresh Hearing Notice which re-fixed date for the hearing also required thorough examination by the learned Justices of the court below.

Be it noted that it was unknown to the learned Justices of Court of Appeal that the Counsel for the appellants (E.A. Popoola Esq. of Counsel) had died on 3 July 1993, even before the Hearing Notice of 9 September 1993 was issued. If the learned Justices of Appeal had properly examined the record moreso, when there was no respondent to the Hearing Notice of 9 September 1993 by either party to the appeal, the misapprehension entertained by them could have been obviated. That that court recorded:-"Appellants' brief was struck out on 29 September 1993. Since that date appellants have not taken any steps indicative of an intention to pursue the appeal." Upon this consideration, the court proceeded to pronounce its Ruling: "Appeal is dismissed for want of diligent prosecution" rather than serve to end the matter with finality, left a yawning gap in the exercise by the court below of their discretion judicially, judiciously or properly. From the record of court reproduced in paragraph (v) above, another factor considered by the court was the incompetent brief of argument filed by the late Counsel for the appellants, Mr E.A. Popoola, as transpired, indicated that he would file a proper brief within three weeks. He could not do so before he was hospitalised. The mistake and/or inability of Mr Popoola in not getting through with a proper brief at once obviously led ultimately to the ruling of the court below to the effect that the appellants have regrettably not taken any steps indicative of an intention to pursue the appeal.

It is trite law that the court does not normally punish a litigant for the mistake of his Counsel. In Iroegbu v Okwordu (1990) 6 NWLR (Part 159) 649 at page 669B-F Nnazmeka-Agu, JSC, had this to say:-

"I think it should be regarded as settled by a long line of decided cases that the courts do not normally punish a litigant for the mistakes of this Counsel."

See also this Court's earlier decisions in:-

1.      Bowaje v Adediwura (1976) 6 SC 143 at page 147.

2.      Akinyede v The Appraiser (1971)1 All NLR 162.

3.      Ahmadu v Salawu (1974) 1 All NLR (Part 2) 318.

More recently in the case of Bello Akanbi & 3 others v Mamudu Alao & another (1989) 5 SC 1; (1989) 3 NWLR (Part 108) 118, this Court commenting on matters when it will not punish a litigant for the mistake or inadvertence of Counsel held at page 154 paragraphs F-G:-

"The courts will generally not punish a litigant for the mistake or inadvertence of his Counsel when the mistake or inadvertence in respect of procedural matters and in such a case the discretion of the court, although always required to be exercised judicially, would be exercised with a leaning towards accommodating the parties' interest and determination of the case on the merits (Ibodo v Enarofia) (1980) 4-7 SC 42 at 52 referred to and distinguished."

Per Eso, JSC, at page 142, paragraph F-G:-

"The Court of Appeal referred to our decision in Ukpe v Ibodo where we refused to visit the sins of the Counsel upon the client for some procedural neglect. We took care in the case to limit our concern to 'mere procedural irregularities' made by Counsel. Of course, this was not saying anything novel as the concern of this Court has always been in pursuit of real, as opposed to cosmetic justice. This Court is a court of concrete justice and not one interested in 'shadow boxing'."

Second issue

The grouse in this issue is centred on the principle of fair hearing as enshrined in Section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 (now Section 36(1) of the 1999 Constitution of Nigeria) which provides as follows:-

"In the determination of his civil rights and obligation, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal, established by law and constituted in such manner as to secure its independence and impartiality."

Each party to a dispute before a court of law or any other tribunal must be given fair hearing not only to allow each to state his own case in court or before a tribunal but also to give each party Notice of the date of hearing and place of hearing which is the principle of audi alteram partem. This principle arises from the rule of natural justice. Fair hearing is also a rule of natural justice. Thus, in Donatus Ndu v The State (1990) 7 NWLR (Part 164) 550 at 578 Nnaemeka-Agu, JSC, stated the law succinctly thus:-

"The very essence of fair hearing under Section 33 of the Constitution is a hearing which is fair to both parties to the suit, be they plaintiffs or defendants or prosecution and defence. The section does not contemplate a standard of justice, which is biased in favour of one party and to the prejudice of the other. Rather it imposes an ambidextrous standard of justice in which the court must be fair to both sides of the conflict."

See Oyeyemi v Commissioner for Local Government (1992) 2 NWLR (Part 226) 666. The hearing must be fair and in accordance with the twin pillars of justice, namely audi alteram partem and nemo index in sua causa. (See Mohammed & another v Olawunmi (1990) 2 NWLR (Part 133) 485 at 458B-C).

In Urhata v Menta Ltd (1968) NMLR 55 at 58, it was held that the principle of audi alteram partem is a fundamental principle of justice from which legislation alone can derogate. Any judgment or ruling based on breach of the Constitutional provision of fair hearing as provided in Section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 will not be allowed to stand on appeal. It is fatal to the judgment appealed against on that ground. See Ntukidem v Oko (1986) 5 NWLR (Part 45) 909. Thus, in Sheldon v Bromfield Justices [1964] 2 QB 573 at 578, it was held that the court or tribunal shall give equal treatment, opportunity and consideration to all concerned in a case.

It is little wonder that this Court has firmly held that when a represented party is not heard or given the opportunity of being heard in a case, the principles of natural justice are abandoned vide Otapo v Sunmonu (1987) 2 NWLR (Part 58) 605 and Olatunbosun v NISER (1988) 3 NWLR (Part 80) 25. Put in another way, it was the decision of this Court in Paul Unongo v Aper Aku & 3 others (1983) 11 SC 129 at 151-152 that neither a court established by the Constitution nor the National Assembly should curtail the power of the court to ensure a fair hearing to a party within a reasonable time as enshrined in section 236 and 33(1) of 1979 Constitution (in the latter now Section 236(1) of the 1999 Constitution). This right of fair hearing, it has been held in Ramoni Ariori & others v Muraimo Elemo & others (1983) 1 SC 13 at 15 is that, ". . . the principle of fair hearing not only demands but also dictates that the parties to a case must be heard on the case formulated by them." See Nwokoro v Onuma (1990) 3 NWLR (Part 136) 22 at 33 per Karibi-Whyte, JSC. For, as Nnaemeka-Agu, JSC, plainly put it in Kotoye v CBN (1989) 2 SC (Part 1) 1, (1989) 1 NWLR (Part 98) 419 at 448:-

"For the rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given an opportunity of hearing. Once an Appellate Court comes to the conclusion that the party entitled to be heard before a decision was reached but was not given the opportunity of a hearing the order/judgment thus entered is bound to be set aside."

See also Ex parte Obinyan (1973) 12 SC 23 where this Court held that fairness is a determining factor for the applicability of the rules of natural justice that an inquiry should be given the same type of hearing. See the cases of Adigun v Attorney-General of Oyo State (1987) 1 NWLR (Part 53) 678 at 718; Aladetoyinbo v Adewunmi (1990) 6 NWLR (Part 154) 98 at 108. See also Ceekay Traders Ltd v General Motors Co Ltd (1988) 3 NWLR (Part 82) 347 and Amadi v Thomas Aplin Co (1972) All NLR 41 at 42.

In the appeal herein, the court below dismissed the appellants' appeal on 19 January, 1994 for lack of diligent prosecution. At page 91 of the records, it is revealed that the appearance of parties is "nil." In other words, none of the parties and their Counsel appeared in court. It was not demonstrated whether or not the parties were served with Hearing Notices. The appellants made a categorical statement of no service of Hearing Notice on them or their Counsel who died on 3 July 1993 before the Hearing Notice was issued on 9 September 1993. As the practice of court is to serve Counsel with Hearing Notice from the date of filing in court papers with address for service of such Counsel, the inference is that no service of the Hearing Notice was ever effected on the dead Counsel and consequently, the appellants were not informed of the hearing date of the appeal.

The Hearing Notice issued on 9 September 1996 was meant to re-fix the appeal for and to supersede the 13 September 1993 date. There was no proceeding in the appeal on 13 September 1993 as it did not come up on that day. The learned Justices of the court below owed it as their duty to examine the court record as to whether the appellants were served with Hearing Notice but deliberately absented themselves, including their Counsel from court, and did not take the opportunity of being heard. In those circumstances, can it be said that the appellants were given a fair hearing in the instant case here on appeal? I take the firm view that the appellants were not given a fair hearing. In Alhaji Chief Yekini Otapo v Chief RO Sunmonu & others (supra) Obaseki, JSC, in answering a similar question said ". . . A hearing can only be fair when all the parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as fair hearing." When the appellants were not heard before their appeal was dismissed, they were not by any stretch of imagination given a hearing let alone fair hearing by the court below. It is indeed trite law that a party who will be affected by the result of a judicial enquiry must be given opportunity of being heard otherwise the action taken following the inquiry will be unconstitutional and illegal. (See Chief Busari Akande v The State (1988) 7 SC (Part II) 113, (1988) 7 SCNJ 314). As Kayode Eso, JSC, put it at page 322 of the Report: "audi alteram partem means please hear the other side. . ."

Accordingly, I will answer the two issues considered together by me above in the negative.

The end result of all I have said above is that I will allow the appeal, set aside the decision of the court below and order that the appeal be reinstated for re-hearing by the Court of Appeal differently constituted and sitting in Ibadan. I make no order as to costs.

Wali, JSC:- I am privileged to have had a preview of the lead judgment of my learned brother, Onu, JSC, and I agree with his reasoning and conclusion for allowing the appeal.

The main issue involved in this appeal is whether, having regard to the facts involved in this appeal, the Court of Appeal was right in dismissing the appeal for want of prosecution.

On page 90 of the printed record of proceedings, learned Counsel for the appellant Mr Popoola, now of blessed memory on 29 March 1993 stated as follows:-

"I concede that the appellants' brief is incompetent. I filed the appellants' brief on 23 December 1990."

As a result of this concession, learned Counsel withdrew the incompetent brief filed as a result of which the Court of Appeal ordered that:-

"The appellants' brief filed on 23 February 1990 is struck out as being incompetent."

After this order, the appeal was adjourned to 13 September 1993 with an award of N300 costs to the respondent who was on that day represented by O. Abolade, of learned Counsel.

The record of proceedings did not show that anything happened on 13 September 1993.

On 19 January 1994, the Court of Appeal sat and when the appeal was called, there were no appearances by the parties or the learned Counsel representing them. The Court of Appeal then proceeded as follows:-

"Appellant's brief was struck out on 29 March 1993. Since that date appellants have not taken any steps indicative of an intention to pursue the appeal.

The appeal is dismissed for want of prosecution."

There is no evidence that any Hearing Notice was issued for 19 January 1994 or even if issued same was served on the parties or their respective Counsel. There is also nothing in the record to show why the court did not sit on 13 September 1993. More over there seems to be an admission by learned Counsel on both sides in their briefs that Mr Popoola, learned Counsel for the appellant died on 3 July 1993. This fact was not brought to the notice of the Court of Appeal up to the time it dismissed the appeal on 19 January 1994.

The absence of notice of the death of Mr Popoola to the court by either the respondent or his Counsel or the appellants themselves or their new Counsel in the person of Chief Bayo Olagunju, misled the court in making the order of dismissing the appeal for want of diligent prosecution.

Learned Counsel owed the court a duty to inform it of the death of a Counsel involved in a matter before it. In the present case either Mr O. Abolade of respondent's Counsel or Chief Bayo Olagunju, the new Counsel for the appellant, ought to have put the Court of Appeal on notice of Mr Popoola's demise.

As the Court of Appeal was not aware of the death of the appellants' Counsel and the apparent absence of service of Hearing Notices on the parties as against 19 January, 1994 it would not be fair, in any view, to sustain the order of dismissal of the appeal made by the Court of Appeal, as the fault that led to the dismissal of the appeal could be partly attributed to the negligence of learned Counsel in the matter, and partly attributable to the Court of Appeal for proceeding to dismiss the appeal without ascertaining that Hearing Notices for 19 January, 1994 were issued and served on the parties in which case the principle of fair hearing was breached. (See Iroegbu v Okwordu (1990) 6 NWLR (Part 159) 649; Bowaji v Adediwura (1976) 6 SC 143; Otapo v Sunmonu (1987) 2 NWLR 605 and Kotoye v CBN (1989) 2 SC (Part 1) 1, (1989) 1 NWLR (Part 98) 419).

It is for these and the fuller reasons in the lead judgment of my learned brother Onu, JSC, that I also hereby allow this appeal, set aside the order of dismissal of appeal by the Court of Appeal for want of diligent prosecution and substitute the same with the order that the appeal be re-listed.

I make no order to costs.

Kutigi, JSC:- I read before now the judgment just delivered by my learned brother, Onu, JSC. I agree with his reasoning and conclusions. I will also allow the appeal, set aside the order of the court below and order that the appeal be heard by a new panel after the parties must have filed and exchanged briefs of argument to be ordered by the court below. I abide by the order for costs.