EYO & ANOR v. ASUQUO & ORS (2020)

EYO & ANOR v. ASUQUO & ORS

(2020)LCN/14314(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Friday, June 05, 2020

CA/C/386/2016

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Philomena Mbua Ekpe Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Between

MRS GRACE GODFREY EYO 2. UTIBE GODFREY EYO (Administratrix And Administrator Of The Estate Of Late Godfrey Eyo) APPELANT(S)

And

PRINCEWILL EYO ASUQUO 2. EDEM EYO ASUQUO 3. EKONG EYO ASUQUO 4. EFFIONG EYO ASUQUO 5. MICHAEL EYO ASUQUO RESPONDENT(S)

RATIO

WHETHER OR NOT THE COURT IS DUTY BOUND TO ENTERTAIN AND DECIDE ON THE MERIT OF ANY APPLICATION BROUGHT BEFORE IT

There is no gainsaying the fact that the Court is duty bound to entertain and decide on the merits any application brought before it by any party notwithstanding the perceived strength or weakness of such an application. See the case of MOBIL PRODUCING (NIG) UNLTD V CHIEF MONOKPO & ORS (2003) 16 NSCQR 492.
The prevailing view is that even when judgment has been prepared but before final delivery and a motion is brought which may or may not be relevant to the substance of the judgment, the motion must be considered and determined before the final judgment is delivered. PER EKPE, J.C.A.

WHETHER OR NOT THE COURT MUST HEAR ALL APPLICATIONS SET BEFORE IT
There is no doubt and this is indeed settled law that the Court must hear the application set before it or brought before its attention even before and already prepared judgment. This is mainly to avoid taking a course that may pre-empt or frustrate the possibility of doing real justice between the parties. See MOBIL PRODUCING NIG. UNLIMITED & ORS v. CHIEF MONOKPO & ORS (2003) 18 NWLR (PT. 852) 346 and ELEMCHUKWU IBATOR & ORS V. CHIEF BELIBARAKURO & ORS (2007) LPELR 13841.
In the case at hand, the learned Chief Judge only considered the application in the course of delivering his judgment and proceeded to dismiss same without giving the applicant an opportunity to argue his application. This, to my mind is tantamount to a denial of the right of fair hearing on the part of the Appellants. See ENL CONSORTIUM LTD V SS (NIG) (2018) NWLR (PT. 1630) 315 @ 326.
It is indeed trite that where a party has been denied fair hearing, the entire proceeding no matter how well conducted by the Court amounts to a nullity. See the following authorities:
1. ADIGUN V AG. OYO STATE (1987) 6 NWLR (PT. 200) 659
2. LEADERS OF COMPANY LTD. V. BAMAIYI (2010) LPELR 177 SC 9 -10
3. OKAFOR VS AG ANAMBRA STATE 1991 6 NWLR (PT. 200) 659
A party cannot be said to have been accorded fair hearing when his arguments have not been given due consideration. See TUNBI V OPAWOLE (2000) 2 NWLR (PT. 644) 275 @ PARA. G – H. PER EKPE, J.C.A.

THE FUNDAMENTAL PRINCIPLE OF ADMINISTRATION OF JUSTICE

As far back as 1991, inNalsa & Team Associates vs. NNPC (1991) LPELR — 1935 (SC). the Apex Court made it clear that it is a fundamental principle of our administration of justice that all applications properly brought before the Courts must be given a hearing. Nnaemeka Agu, JSC, in the case cited opined that.
“It is an elementary and fundamental principle of our administration of justice to hear all applications properly brought before our Courts. Accordingly where an application is properly brought before the Court, the principle of fair hearing demands that it should be heard on its merits”.
This basic principle becomes more operative where addresses form part of the case, and failure to hear the address of one party, however overwhelming the evidence might be on the other side vitiates the trial. See Obodo vs. Olomu (1987) NWLR (Pt. 59) 111; Niger Construction Ltd. v. Okugbeni (1987) NWLR (pt 67) 787, Machika vs. Imam & Ors. (2010) LPELR – 4448 (CA). PER BARKA, J.C.A.

PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Akwa Ibom High Court sitting in Uyo, presided over by Hon. Chief Judge Stephen Okon and delivered on the 4th day of July, 2016, therein he dismissed the case of the appellants who were Plaintiffs in the Court below.

The appellants not being satisfied with the judgment of the learned Chief Judge appealed against the said decision as per the Notice of Appeal contained on pages 407 to 412 of the record of appeal which Notice of Appeal was filed on the 5th day of August, 2016.

The appellants as plaintiff sued the Respondent at the court below and claimed as follows:
a. An order of possession of the bungalow building of the late Godfrey Eyo in Afaha Etok Ibesikpo in Ibesikpo Asutan Local Government Area, Akwa Ibom State, covered by Survey Plan No. UUCR/1110/78 of 5th March, 1978 and building plan No. UYAPA/B: 352/79.
b. An order of perpetual injunction restraining the defendants, their agents, privies and persons acting through them or on instructions from interfering in any manner however or disturbing the plaintiffs’ possession of

the bungalow building of late Godfrey at Afaha Etok Ibesikpo herein before described.

Facts of the case
The story line of the appellants is that they were forcefully ejected from the bungalow which they claimed was built by their late husband/father of the 1st and 2nd Appellants respectively. They further alleged that their father had bought the land, surveyed it, registered the building plan and erected a bungalow. That the deceased had lived there with his family until his death, but soon after his death, his family was forcefully removed by the Respondents.

The Respondent on their part claimed that the land and building in dispute was part of the land acquired by their father Mr. Eyo Asuquo who was also the father of late Mr. Godfrey Eyo Asuquo and husband of the 1st appellant respectively. That the Respondent’s father erected the building in dispute and gave it to late Mr. Godfrey Asuquo, being part of the main building as his first son.

In the course of the proceedings at the lower Court, the then trial Judge Philomena Etim J. retired from the Akwa Ibom State High Court and the learned Chief Judge Stephen Okon J. inherited

the matter and proceeded with the trial.

At the conclusion of evidence, learned counsel on both sides were required to file their written addresses. For whatever reason, the Plaintiffs/Appellants counsel failed to file his own written address in response to that of the Respondents and subsequently, an order was made at the instance of the Respondents’ counsel foreclosing the appellants from filing their written address and the matter was adjourned for judgment.

In the meantime and before the date of judgment, learned counsel for the appellants filed a motion to set aside the order of foreclosure and also extension of time to file their written address. The said application was filed before the date of judgment but in the course of delivering his judgment, the learned Chief Judge without taking the motion struck out the application to set aside the order of extension of time to file appellant’s final address and delivered the judgment nonetheless.

This appeal has thus emanated from the said decision of the Chief Judge of the lower Court, the appellants being dissatisfied with the said judgment.

The notice and grounds of appeal

was filed on the 5th day of August 2016 wherein the appellant raised six grounds of appeal.

The following grounds of appeal shorn of their particulars are as follows:
GROUND ONE: ERROR IN LAW
The learned trial Chief Judge erred in law when he failed to hear the Motion filed by the plaintiffs on the 27th day of May, 2016 whereby the appellants prayed the Court to set aside the foreclosure order made against the plaintiffs from filing their final written address in line with the written address filed by the defendants thereby denying the plaintiffs the right of fair hearing as guaranteed by Section 36 of the 1999 Constitution of the Federal Republic of Nigeria as amended.
GROUND TWO: ERROR IN LAW
The learned trial judge erred in law when he held that “The plaintiffs relied on deed of conveyance, Exhibit 2 while the defendants relied on receipts of the land in dispute, that is, Exhibits 4, 4(1) and 4(2) from two vendors namely; James Akpan Una and Effiong Etim Udobong. This was corroborated by two witnesses, Dw2 and Dw3. The plaintiffs did not call a single independent witness”.
GROUND THREE: ERROR IN LAW
Learned

trial chief Judge erred in law when he held that “The question is, if late Chief Eyo Asuquo lived in a different house and the house collapse causing his son, late Godfrey Eyo to take him and his family to live with him in the disputed house, as alleged by the plaintiffs, why was Chief Eyo Asuquo not buried at his old dwelling place? I am unable to believe that a man who was said to have married many wives and got many children would have been a tenant with that number of dependants in the late Godfrey Eyo’s house.”
GROUND FOUR: ERROR IN LAW
The learned trial Chief Judge erred in law when he held that “The plaintiffs’ pleadings are porous. They are such that even if the plaintiffs counsel had filed a written address within the time granted, this Court would not decide this case in favour of the plaintiffs. This is so because, cases are not won or lost on the basis of Written Addresses. They are on the contrary won or lost on the basis of pleadings filed by the parties.
GROUND FIVE: ERROR IN LAW
The learned trial Chief Judge erred in law when he failed in its sacred duty of evaluation of evidence tendered and

admitted before him.
GROUND SIX: MISDIRECTION
The judgment is against the weight of evidence.

From the said grounds of appeal, learned counsel for the appellants formulated the following six issues for determination:
1. Whether the learned trial Chief Judge was right in refusing to hear the Motion filed by the plaintiffs/appellants on the 27th day of May, 2016, praying the Court to set aside the foreclose order made against the plaintiff/appellants from filing their final written address in line with the written address filed by the defendants and whether this amounts to a denial of fair hearing (Ground 1 of Appeal).
2. Whether cases are won and lost on the number of witnesses called by them. (Ground 2 of Appeal).
3. Whether non-burial of Late Chief Eyo Asuquo at his old dwelling place, but at the property of his son, Godfrey Eyo is a proof of title that the disputed property was the property of Chief Eyo Asuquo (Ground 3 of Appeal).
4. Whether civil cases are won on the preponderance of evidence or balance of probability and not proof beyond reasonable doubt as in criminal cases (Ground 4 of Appeal).

Whether the learned trial Chief Judge has failed in performing his sacred duty of evaluation of evidence in this case (Ground 5 of Appeal).
6. Whether the judgment was against the weight of evidence (Ground 6 of Appeal).

The Respondents on their part also raised three issues for determination as follows:
1. Whether the motion of the appellants filed 27th May, 2016 after Suit No. HU/184/2005 was adjourned for judgment did not amount to arresting the judgment of the lower Court and whether the failure by the trial judge to hear the motion before delivering judgment in this appeal resulted in a miscarriage of justice or denial of fair hearing to the appellants (Ground 1).
2. Whether the appellants had discharged the burden placed on them by law to have merited the judgment of the lower Court in their favour. (Ground 2, 3, 4 and 6).
3. Whether by the judgment of the lower Court, the appellants can complain and/or accuse the lower Court of not properly evaluating the evidence tendered at the trial and/or of non evaluation of evidence tendered by parties. (Ground 5).

I have perused both sets of issues as formulated by learned counsel and it is my

humble view that the sole issue worthy of attention by this Court is:
1. Whether failure by the lower Court to hear the motion before delivering judgment in the lower Court resulted in a miscarriage of justice or denial of fair hearing.

On this issue one, the learned counsel for the appellants submitted that the motion to set aside the order for foreclosure and for extension of time to file his written address was proper before the Court as same was filed before the judgment was delivered and the attention of the judge was drawn to it.

That the learned trial Chief Judge was in error to strike out the said motion without allowing him move same and that it amounts to a violation of the right of fair hearing of the Appellants as a Court is bound to entertain and decide on the merits any application brought before it by any party notwithstanding the perceived strength or weakness of such application.

That the mandatory nature of hearing such an application is obvious except where in the case of contempt proceedings the judge can exercise a punitive jurisdiction against a contemnor of a Court order who is expected to purge himself of contempt.

He cited the authorities of MOBIL PRODUCING (NIG.) UNLIMITED VS CHIEF MONOKPO & ORS (2003) 16 NSCQR 492.

Learned counsel further submitted that the findings of the learned Chief Judge on page 406 of the Records of proceedings lines 9-15 that the case of the appellants was porous and without address should be dismissed, shows that the learned Chief Judge had already made up his mind not to make use of the Written Address. He submitted that denying a party the right to present a final address is a breach of right of fair hearing. Relying on the case of MPAMA V FBN (2013) 53 NSCQR 190 at 214. He urged the Court to allow the appeal on this issue.

The respondents on their part have submitted that the Motion in question was filed only after the matter had been adjourned for judgment and the appellants had been foreclosed from further filing any written address. He further submitted that such an application is tantamount to arresting the judgment of the lower Court, which application is unknown to the rules of Court.

He cited: ALHAJI MOHAMMED AND ANOR VS. ALHAJI KASIM SHETTIMA AND 3 ORS (2011) 18 NWLR. PT. 1279 P. 413 AT 485;

NEWS WATCH COMMUNICATION LTD. VS ATTAH (2006) (12 NWLR) PART 993) 144.

The learned Respondents’ counsel further submitted that any argument in respect of the motion and the final address of the Appellant was an academic exercise and relied on the case of PLATEAU STATE GOVERNMENT VS. A. G. FEDERATION (2006) 2 NWLR (PT. 967) 346.
He again submitted that the appellant did not show how by striking out of the motion amounted to a miscarriage of justice therein.

On the issue of denial of fair hearing as submitted by the Appellants, counsel submitted that the appellants failed to show diligent prosecution, by failing to bring the said Motion to the attention of the trial Chief Judge and whether Court is entitled to proceed with the documents in its file not brought to its knowledge.

He relied onEKPETO VS WANOGHO (2005) 123 LRCNP. 170 AT 175. Finally, he submitted that no Court should compel a party to take advantage of the atmosphere of right of fair hearing but the duty of Court is to create such an atmosphere. He also relied on UNIL VS OYALANA (2001) 52 WRN 75; and INAKOJU VS ADELEKE (2017) 143 LRCN 1 AT 33 in urging the Court to dismiss the

appeal.

In his reply brief, the appellant’s counsel drew the Court’s attention to Order 44 Rule 4 of the High Court of Akwa Ibom State which states as follows:
“The Judge, may as often as he deems fit, and either before or after the expiration of the time appointed by these Rules or by any judgment or order of the Court, extend or adjourn the time for doing any act or taking any proceedings. Provided that any party who defaults in performing an act within the time authorized by the Judge or under these rules, shall pay to the Court an additional fee of N200.00 (Two Hundred Naira) for each of such default at the time of compliance”.

He further opined that the said application was brought in line with the Rules of the Court and as a result the authorities cited by the Respondents counsel did not support his position.

RESOLUTION
I have also carefully considered the above provisions of the Rules of the High Court of Akwa Ibom State. The procedure in respect of the application under consideration was in line with the said Rules of the High Court as the appellants were given 14 days to file their final written

address and when the time elapsed, the appellants applied for extension of time, paid penalty for bringing same late and prayed for an order as properly filed in respect of the final address. See pages 270 to 291 of the Record. There is no gainsaying the fact that the Court is duty bound to entertain and decide on the merits any application brought before it by any party notwithstanding the perceived strength or weakness of such an application. See the case of MOBIL PRODUCING (NIG) UNLTD V CHIEF MONOKPO & ORS (2003) 16 NSCQR 492.
The prevailing view is that even when judgment has been prepared but before final delivery and a motion is brought which may or may not be relevant to the substance of the judgment, the motion must be considered and determined before the final judgment is delivered.
There is no doubt and this is indeed settled law that the Court must hear the application set before it or brought before its attention even before and already prepared judgment. This is mainly to avoid taking a course that may pre-empt or frustrate the possibility of doing real justice between the parties. See MOBIL PRODUCING NIG. UNLIMITED & ORS v. CHIEF MONOKPO & ORS (2003)

18 NWLR (PT. 852) 346 and ELEMCHUKWU IBATOR & ORS V. CHIEF BELIBARAKURO & ORS (2007) LPELR 13841.
In the case at hand, the learned Chief Judge only considered the application in the course of delivering his judgment and proceeded to dismiss same without giving the applicant an opportunity to argue his application. This, to my mind is tantamount to a denial of the right of fair hearing on the part of the Appellants. See ENL CONSORTIUM LTD V SS (NIG) (2018) NWLR (PT. 1630) 315 @ 326.
It is indeed trite that where a party has been denied fair hearing, the entire proceeding no matter how well conducted by the Court amounts to a nullity. See the following authorities:
1. ADIGUN V AG. OYO STATE (1987) 6 NWLR (PT. 200) 659
2. LEADERS OF COMPANY LTD. V. BAMAIYI (2010) LPELR 177 SC 9 -10
3. OKAFOR VS AG ANAMBRA STATE 1991 6 NWLR (PT. 200) 659
A party cannot be said to have been accorded fair hearing when his arguments have not been given due consideration. See TUNBI V OPAWOLE (2000) 2 NWLR (PT. 644) 275 @ PARA. G – H.
I have also painstakingly gone through arguments of both learned counsel and the authorities relied thereon. It is

my view that the learned jurist of the lower Court even though he made an effort to carefully evaluate the evidence before him by looking at some exhibits, particularly exhibit 3, it can be rightly opined that such an exercise is an exercise in futility since he had failed to consider the application before him to use the final address and thereby also failed to use the final address before delivering his judgment. There is therefore no proper evaluation of evidence when the final address of a party has not been considered.
In general legal parlance, a fair hearing means a fair trial. See MOHAMMED V KANO NA (1968) 1 ALL NLR 424.
This also in essence means giving equal opportunity to the parties to be heard in the course of litigation. If and where both parties are given equal opportunity to be heard, they cannot complain of breach of fair hearing. Also fair hearing connotes a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause. SeeARIORI & ORS V ELEMO & ORS 1983 LPELR 552. On the same note, the weight of evidence cannot be given proper appraisal in isolation where the

appellant had not been given a chance to completely air his views in line with all legal rules and regulations. The appellants motion for extension of time to file his address and indeed the final address proper were not taken by the trial Court before delivery of his final judgment. This indeed is tantamount to lack of fair hearing. In sum, the entire evidence and its evaluation in the course of proceeding collapses in the face of lack of fair hearing on the part of the appellants.

From the totality of all of the above summation, it is my ardent view that this appeal is adjudged meritorious, it succeeds and is hereby allowed. Accordingly the judgment of the lower Court delivered on the 14th day of July 2016 in suit No. HU/184/2005 is hereby set aside.
It is hereby ordered that the case file be sent back to the Chief Judge of Akwa Ibom State for re-assignment to another Judge for hearing and determination.
I make no order as to costs.
Appeal allowed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.

HAMMA AKAWU BARKA, J.C.A.: My learned brother Ekpe, JCA has graciously made available to me the judgment just read in draft before now.

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to rather hurriedly proceeding to deliver a judgment The appellants’ right of fair hearing in the circumstance was breached and the whole trial, including the decision reached is rendered null and void.

I side with the appellant and the lead judgment in that regard, allow the appeal, and remit the case to the Chief Judge of Akwa lbom State for assignment to a different Judge who should commence the case de novo. I abide on orders made on costs.

Appearances:

Williams I. Inyang Esq. For Appellant(s)

A. Asuquo Esq., Edidiong Akpanuwa Esq., Mfonobong Okon Esq., Ufok Effiom Esq., Ndiana-Abasi Etuk Esq. For Respondent(s)