IKPEA v. IKPEA
(2022)LCN/16900(CA)
In The Court Of Appeal
(BENIN JUDICIAL DIVISION)
On Friday, September 23, 2022
CA/B/149/2021
Before Our Lordships:
Theresa Ngolika Orji-Abadua Justice of the Court of Appeal
Uchechukwu Onyemenam Justice of the Court of Appeal
Ademola Samuel Bola Justice of the Court of Appeal
Between
MRS. AGNES IKPEA APPELANT(S)
And
CHIEF LEEMON IKPEA RESPONDENT(S)
RATIO
WHETHER OR NOT A DENIAL OF THE RIGHT TO BE HEARD IS A BREACH OF CONSTITUTIONAL RIGHT
I must say there were serious allegations of breaches of principles of fair hearing which were paramount in the complaints of the Appellant. It is trite law that once right to fair hearing is violated, it is irrelevant whether a decision made subsequent thereto is correct. See Victino Fixed Odds Ltd vs. Ojo & Ors (2010) 8 NWLR Part 1197 page 486 wherein Tukur vs. Government of Gongola State (1989) SCNJ 1 was referred to. The Supreme Court, per Fabiyi, JSC., went further to state that on a breach of the right of fair hearing, an Appellate Court does not go to the reasons for its breach or the consequences of same. It has no alternative but allow the appeal against the decision and treat it as though there has been no hearing at all. An Appellate Court is bound to follow this course in the hearing of the appeal. See Adigun & Ors. v. A.G. Oyo State & Ors. (1987) 2 NWLR (Pt. 56) 197. A denial of the right to be heard is a breach of constitutional right, natural justice and Rules of Court. Such cannot and ought not be condoned in any respect. See Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587. It is a basic and fundamental principle of the administration of justice that no decision can be regarded as valid unless the trial Judge or Court has heard both sides in the conflict. See: Deduwa v. Okorodudu (1976) 9 – 10 S.C. 329.” Also in Deduwa & Ors vs. Okorodudu & Ors (1976) LPELR-936(SC), the Supreme Court, per Alexander, JSC., articulated that it is immaterial whether or not a Court has heard one party or both parties to a suit, or whether or not one party or the other has wilfully absented himself from the hearing or failed to give evidence, and that once a trial has commenced after issue has been joined on the pleadings, there is a hearing to which the test of fairness under Section 22(1) of the Constitution may be applied, within the context of the proceedings between the parties as a whole. If, of course, there is no hearing of one party’s side of the case, especially if it is through no fault of his own, this may also amount to no ‘fair hearing’ of his side of the case and he will not have had a ‘fair hearing’ in the determination of his civil rights and obligations to which he is entitled under Section 22(1) of the Constitution. If it may be fairly inferred by reasonable persons sitting in Court, from the circumstances, that there is a real likelihood of bias, against one of the parties, on the part of the trial Court, it must follow irresistibly that that party’s right to a fair hearing has been contravened and that any decision on the issue between the parties by the trial Court in such circumstances cannot stand.” (Underlining mine. PER ORJI-ABADUA, J.C.A.
THE DEFINITION OF AN “APPELLANT”
In Padawa & Ors vs. Jatau (2002) LPELR-5380(CA), this Court per Muhammad, JCA., (as he then was) stated that “An appellant means any person who desires to appeal or appeals from a decision of the Court below or who applies for leave to so appeal, and includes a legal practitioner representing such a person in that behalf. He is the one who opposes the ruling or judgment of the Court below. Ichu v. lbezue (1999) 2 NWLR (Pt. 591) 437. The question raised by learned Counsel for the respondent is: Can the 1st – 7th defendants in the circumstances of this case, appeal in respect of the lower Court’s ruling of 21/11/97? This calls for the determination of who has the right of appeal and under what circumstances? It has been made clear by the Supreme Court that a right of appeal to the Court of Appeal is a Constitutional right exercisable by a party in a civil suit. Eyesan v. Sanusi (1984) 4 SC U5 at 136, (1984) 1 SCNLR 253. The Constitution of the Federal Republic of Nigeria, 1999, provides in Section 243(a) that any right of appeal to the Court of Appeal from the decisions of a High Court in civil proceedings is exercisable at the instance of a party thereto, or, with the leave of the High Court or the Court of Appeal, at the instance of any other person having an interest in the matter. Thus, each of the plaintiff and defendant or the applicant or petitioner and the respondent in civil proceedings has a right of appeal. By necessary extension of the rule therefore, the parties or any other person named in the record could appeal. A non-party not named on the record but having an interest in the matter must apply for leave in order to appeal. However, the important point to note is that a party appealing must have been aggrieved by the decision as a party cannot appeal against a decision in his favour. See Prof Awojobi v. Dr. Ogbemudia (1983) 8 SC 92…In other words, a person who wishes to appeal in such circumstances must show that he was aggrieved by the decision, in the sense that he had suffered a legal grievance. He must show that the decision wrongfully deprived him of something, or wrongfully refused him something.”(Underlining mine). PER ORJI-ABADUA, J.C.A.
THE POSITION OF LAW ON WHO AN AGGRIEVED PERSON IS
On who is aggrieved, the Supreme Court, per Ariwoola, JSC., (as he then was) in Abacha vs. FRN (2014) LPELR-22014(SC), distinctly stated that: “To be aggrieved, a person must have legal rights that are adversely affected, having been harmed by an infringement of legal rights. A person aggrieved must be a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something. See In Re: Alhaja Afusat Ijelu & Ors Vs. Lagos State Development & Property Corporation & Ors (1992) NWLR (Pt. 266) 414; (1992) LPELR 1464. The Court below was therefore correct in holding that in the instant context, the expression “person aggrieved” refers to any person whose legal right was invaded by the forfeiture order, whose financial interest was directly and adversely affected by the said Decree and whose right or property may be established or divested.” PER ORJI-ABADUA, J.C.A.
THERESA NGOLIKA ORJI-ABADUA, J.C.A. (Delivering the Leading Judgment): The matrimonial causes proceedings that sparked this appeal was commenced on the 14th December, 2020 by the Respondent against the Appellant as the Respondent therein in the Edo State High Court Coram V. O. Eboreime, J., in suit No. B/747D/2020. The Respondent as the Petitioner sought the following reliefs:
“1. DECREE OF DISSOLUTION of the marriage contracted between the Petitioner and the Respondent on the 22nd day of November 2001 on the ground that the marriage has broken down irretrievably.
2. AN ORDER of perpetual injunction restraining the Respondent by herself, her children, her agents or privies from confronting, molesting, harassing, tormenting, embarrassing, causing or threatening violence against the Petitioner or defaming the Petitioner in any manner or at any forum whatsoever and howsoever.”
The facts in support of the Petition are that: “(a) Since the marriage, the Respondent has behaved in such a way that the Petitioner cannot be reasonably expected to live with her. (b). That the Respondent has been in constructive desertion of the marriage for more than one year, indeed for about 10years now, and has denied conjugal rights to the Petitioner for that period. (c). That the Respondent has ever since the aforesaid period of about 10 years completely abandoned all matrimonial responsibilities of a wife.”
The Appellant filed her Answer and Cross-Petition on the 3rd March, 2021. In the Cross-Petition, she joined one Justina Ochukwu as the 2nd Respondent and sought the following reliefs:
“i. An order dismissing the petition for dissolution of the marriage.
ii. An order that the marriage between the parties be dissolved on the basis of this Cross-Petition.
iii. A decree of dissolution of the marriage between the Cross-Petitioner and the 1st Respondent, contracted on 22nd November 2001 at the St. Leo Catholic Church, Ikeja, Lagos State on the ground that the marriage has broken down irretrievably in that since the marriage, the 1st Respondent has committed adultery and the Cross Petitioner finds it intolerable to live with the 1st Respondent.
iv. An order directing the 1st Respondent to maintain the Cross-Petitioner in the following terms:
a. The sum of N500,000,000.00 (Five Hundred Million Naira only) for the purchase of a suitable accommodation within Lekki, Victoria-Island and Ikoyi environs of Lagos State;
b. The sum of N600,000,000.00 (Six Hundred Million Naira only) to cover her living and travel expenses for the next twenty five years at the rate of N2,000,000 (Two Million Naira only) per month;
c. The sum of £500,000.00 (Five Hundred Thousand Pounds) for the purchase of a suitable furnished apartment in the United Kingdom or the United States of America.”
In the course of the judgment delivered on 16/7/2021, the lower Court observed that the pleadings of the Respondent/Cross-Petitioner were abandoned by her as she did not lead evidence in the case, before the Court foreclosed her on the 15th day of July, 2021. At page 409 of the record, the Appellant’s Answer and Cross-Petition filed on 3/3/2021 but which was deemed on 19/5/2021 as duly filed and served on that day and her Cross-Petitioner’s Reply to the 1st Cross-Respondent’s Answer to the Cross-Petition filed on 21/6/2021 were all struck out by the lower Court.
As depicted in the record of appeal, the lower Court in its judgment delivered on 16/7/2021 pronounced thus:
“1. The marriage between the Petitioner (CHIEF LEEMON IKPEA) and the Respondent (MRS. AGNES IKPEA) contracted under the Marriage Act that was celebrated at the St. Leo’s Catholic Church, Ikeja, Lagos State, Nigeria on the 22nd day of November, 2001, having broken down irretrievably under Section 15(2) (c) of the Matrimonial Causes Act, is hereby dissolved.
2. I pronounce an order of Decree Nisi.
3. The Decree Nisi shall become Absolute at the expiration of three (3) months from today unless sufficient cause is shown to the contrary.
4. I give an Order allowing the Respondent to keep and enjoy the two SUV vehicles (a Mercedes Benz and a Toyota Land Cruiser) already assigned to her by the Petitioner.
5. The Petitioner is to pay the Respondent the lump sum of N50,000,000.00 (Fifty Million Naira) only as full and final settlement for her maintenance and upkeep.
6. I give an Order of perpetual injunction restraining the Respondent by herself, her children, her agents or privies from confronting, molesting, harassing, tormenting, embarrassing, causing or threatening violence against the Petitioner or defaming the Petitioner in any manner or at any forum whatsoever and howsoever.”
The Respondent being bamboozled and disgruntled at the swift judgment of the lower Court, lodged an appeal before the Registry of the lower Court via a Notice of Appeal filed on 1/9/2021 which was predicated on fifteen grounds of appeal. The record of appeal was transmitted to this Court on 28/10/2021. The Appellant was given the leave of this Court on 7/4/2022 to amend her Notice of Appeal within 14 days from the date thereof. The same was filed on the same 7/4/2022 and was still anchored on 15 Grounds of Appeal.
The Appellant’s Brief of Argument was filed on 13/12/2021 whereas the Respondent’s Brief of Argument was filed on 4/4/2022 but the same was deemed as duly filed and served on 7/4/2022. The Appellant’s Reply Brief was filed on 21/4/2021. The Respondent raised a Preliminary Objection which was argued in the Respondent’s Brief of Argument. The Appellant responded to the Objection in her Reply Brief.
In the Appellant’s Brief of Argument, five issues were excogitated therein thus:
“1. Whether the Court below was right to have delivered the judgment in this case in Chambers in violation of Section 36 (3) of the Constitution of the Federal Republic of Nigeria?
Distilled from Ground 15 of the Notice of Appeal
2. Whether the Court deprived itself of jurisdiction to hear and determine the matrimonial cause when the Court disregarded the statutory conditions for setting down a matrimonial cause for trial?
Distilled from Grounds 2, 3, & 4 of the Notice of Appeal.
3. Whether the Court below violated the Appellant’s fundamental right to a fair hearing under Section 36 (1) of the Constitution of the Federal Republic of Nigeria?
Distilled from Grounds 1, 5, 6, 7, 8, 9, 10, 11, & 12 of the Notice of Appeal.
4. Whether the Court below ought to have granted a Decree Nisi for the dissolution of the marriage between the Appellant and the Respondent when the Respondent failed to satisfy the conditions listed under Section15(2)(c) of the Matrimonial Causes Act for demonstrating that the marriage had broken down irretrievably?
Distilled from Ground 14 of the Notice of Appeal
5. Whether the Court below was right to have held that the Respondent had proved that the marriage had broken down irretrievably in the absence of credible evidence to that effect?
Distilled from Ground 13 of the Notice of Appeal.”
The Respondent filed a Preliminary Objection on the grounds that :(1) only a person aggrieved with the decision of the Court that can appeal against it. (2) Incomplete parties as contained in the heading of the Notice of Appeal. (3) In respect of paragraph 2 of the Notice of Appeal which requires the Appellant to state the part of the judgment of the lower Court complained of in order to put the Respondent in the know of the decision he is preparing against. (4) The Notice of Appeal is invalid and the appeal incompetent.
With regard to the appeal itself, the Respondent adopted the issues as postulated by the Appellant.
In the Appellant’s Brief of Argument settled by Oyinkansola Badejo-Okusanya, (Mrs.), it was submitted in respect of the Appellant’s issue No. 1, that by Section 36(1) and (3) of the Constitution of the Federal Republic of Nigeria, 1999, all trials must be held in public. Counsel then referenced the cases of Oviasu v. Oviasu (1973) All NLR (Reprint) 370, per Sowemimo, JSC., and Menakaya v. Menakaya (2001) 16 NWLR (Pt. 738) 203 where it was respectively held that a Judge’s Chambers is not a Court hall to which the public will normally have right of access. The action of the Judge to hear the Petition in Chambers and his judgment is an open violation of the provision of Section 103(1) and (2) of the Matrimonial Causes Act. The law is that it is mandatory that proceedings in respect of Petition for dissolution of marriage shall be in public. Neither the parties nor the Court can decide otherwise. Any decision made by a Court contrary to the mandatory provision is a nullity.
He further relied on Alimi & 2 Ors vs. Kosebinu & 3 Ors (2016) 17 NWLR Part 1542 page 337 in which the case of N.A.B. Ltd. vs. Barri Engineering (Nig.) Ltd. (1995) 8 NWLR (Pt.413) 257 at 279 was referred to, and in which the parties themselves consented to the reading of the judgment in Chambers, and restated that sitting in chambers to deliver judgment is not sitting in public or in open Court. It was held therein that it is a clear breach of the mandatory provisions of Section 33 (3) and (13) of the 1979 Constitution and Order 36 Rule l of the High Court Rules of Lagos State and the defect therein is fundamental and goes to the root of the entire proceedings. Learned Counsel also placed reliance on Ngwo vs. Monye (1970) 1 ALL NLR 91; Ofune v Okoye (1966) I ALL NLR 94, per Uthman Mohammed., JSC., and Menakaya vs. Menakaya (supra) at 236 and submitted that the provisions of Section 36(1) and (3) of the Constitution of the Federal Republic of Nigeria, 1999 are such that being a public right neither party to the litigation can waive the right or adjust it as it is a right donated by the Constitution. She stated that the lower Court fundamentally erred in law by delivering the judgment in the instant appeal in Chambers contrary to the provisions of Section 36(3) of the Constitution of the Federal Republic of Nigeria, 1999. She therefore urged this Court to resolve this issue in favour of the Appellant.
Under issue No. 2, learned Counsel for the Appellant made reference to the settled principles on issue of jurisdiction as enunciated in Madukolu vs. Nkemdilim (1962) I ALL NLR Part 4) 587 where the circumstances under which a Court can be said to have jurisdiction were outlined and then reiterated in Sken Consult vs. Secondy Ukey (1981) SC 6; Bronik Motors Ltd vs. Wema Bank Ltd (1983) 6 SC 158; A. G., Federation vs. Guardian Newspapers (1999) 9 NWLR (Pt 618) 187; Inakoju vs. Adeleke (2007) 4 NWLR (pt 1025) 423; Sokoto State Government vs. Kamdex (Nig.) Ltd. (2007) 7 NWLR (Pt.1034) 466 at 494-495, paras H-F; Seven Up Bottling Co. vs. Akinware (2011) 15 NWLR (pt 1270) 302 at 323.l, and Dingyadi vs. INEC & Ors (2011) 10 NWLR Part 1255 page 347 at 390. Counsel referred to D.E.N.R Ltd vs. Trans Int’l Bank Ltd (2008) 18 NWLR Part 1119 page 399 at 417 and submitted that the absence of any of the ingredients, will automatically rob the Court of its jurisdiction and the competence to hear and determine the suit. He stressed that the requirement for a Court to possess requisite jurisdiction to hear and determine a matter must be present throughout the proceedings, such that where factors arise in the middle of proceedings which deprive the Court of jurisdiction, the Court immediately ceases to possess the vires to hear and determine the case. He referred to the case of State vs. Onagoruwa (1992) 2 SCNJ in support.
Counsel argued that the second ingredient is lacking in the instant appeal as there are features in the case which prevented the Court from exercising its jurisdiction, which features, the Court below blatantly disregarded, and, proceeded to hear the case. It was submitted that the Appellant complained about the non-compliance with the Rules, each step of the breach and once there is a condition precedent to the exercise of the Court’s jurisdiction and that condition precedent as set out in the statute is not complied with, the Court is divested of jurisdiction to entertain such an action. He further relied on Inakoju & Ors v. Adeleke & Ors (2007) 4 NWLR (Pt. 1025) 423, per Niki Tobi, JSC; Tabansi v. Tabansi [2018] 18 NWLR Part 1651 Menakaya vs. Menakaya (2001) 16 NWLR Part 738 page 203 and reiterated the established law that a mandatory statutory provision directing a procedure to be followed in the performance of any duty is not capable of being waived by a party.
Learned Counsel made reference to Order XI Rule 34 sub-rules (1) and (2)(a) and (b) of the Matrimonial Causes Rules which stipulated that subject to sub-rule 2 of the rule, a suit to which this Part applies shall not, except by leave of the Court, be set down for trial upon application made by a party to the suit, being the petitioner or respondent, unless: (a) a conference for the purpose of this Part has been held; or (b) that party attended, on the day and at the time and place fixed under this Part for the holding of such a conference, for the discussing, and making a bona fide endeavour to reach agreement on, any matters referred to in sub-rule(1) of Rule 35 of this Order, but the petitioner or respondent, as the case may be, failed to attend or to take part in the conference, Rules 40(1)(a) and (b) and Rule 41(1) and (3), and, contended that before a defended matrimonial petition is set down for trial, pleadings should be closed; the date for compulsory conference has been fixed and/or parties have held compulsory conference; and a period of 14 days has elapsed since the date of compulsory conference or in the case of a suit where no compulsory conference held, a period of 28 days has elapsed since the pleadings were completed. Thereafter the party is mandated to request that the suit be set down for trial and the registrar, being satisfied that all the above conditions have been met, shall issue a certificate in that regard, and accordingly set down the suit for trial.
Learned Counsel submitted that in the instant case, none of these had happened when the lower Court at the proceedings of 17th February 2021 suo motu ordered accelerated hearing of the petition at pages 109-139 of the record of appeal. Counsel then explained that it was after the Appellant applied to the lower Court to set aside the order for accelerated hearing on grounds of non-compliance with the provisions of the Rules requesting for setting down the suit for trial and issuance of a certificate from the Registrar of the Court in accordance with Order XI, Parts 6 and 8 of the Rules, that the Respondent belatedly filed a request on the same 26/2/2021 as shown at page 206 of the record, to set the suit down for hearing. Counsel said that the Appellant filed her Answer to the Petition and Cross-Petition on 21/6/2021 as portrayed at pages 299-308 of the record. Counsel further explained that compulsory conference was never held and the lower Court ordered the Respondent to commence his case. It was further highlighted that by Order XI Rule 41(2) of the Matrimonial Causes Rules, before a Request to set suit down for trial, the pleadings in the Petition must be complete. Also by Order XI Rule 41(6), a defended suit in which there is a relief for maintenance of a party, shall not be set down for trial unless an application has been made for a certificate of means. She then submitted that the lower Court erred in setting down the suit for trial in the absence of a prior request to set the suit down for trial and without the issuance of a certificate by the Registrar. Further, it erred in making an order to commence trial on the same day that pleadings were completed in the clear breach of Order XI Rules 40 and 41 of the Rules. He urged this Court to hold that the Court deprived itself of jurisdiction to hear and determine the matrimonial cause when the Court disregarded the statutory conditions for setting down a matrimonial cause for trial.
Regarding issue 3, it was submitted that this is a typical case of justice not being properly served, both in procedural and in substantive respects. Counsel stated that the right to fair hearing is a fundamental constitutional right guaranteed by the Constitution, and a breach of the right in trial or adjudication will vitiate the entire proceedings, rendering same null and void and of no effect. Reference was made to the decisions in Ariori & Ors. v. Elemo & Ors. (1983) 1 S. C.13 at pages 23-24, Obaseki, JSC, R v. Sussex Ex Parte McCarthy (1923) All ER 223; (1924) I KB; on the principles of fair hearing and the doctrine that justice should not only be done but must be seen to have been done. The expression of Eso, JSC., in Prince Yahaya Adigun & 2 Ors vs. The Attorney General of Oyo State (1987) 1 NWLR (Pt. 53) 678 at 721 was referred to the effect that if the principles of natural justice are violated in respect of any decision, it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision. Counsel further relied on Pan African Incorporation & Ors vs. Shoreline Lifeboat Ltd & Anor. (2010) All FWLR (Pt.524) 56; Ovunwo & Anor. v. Woko & Ors (2011) 17 NWLR (Pt. 1277) 522; Judicial Service Commission, Cross River State & Anor. Vs. Dr (Mrs) Asari Young (2013) 11 NWLR Part 1364 page 1, and submitted that Appellant was not given fair hearing by the lower Court.
Learned Counsel also drew attention to the pronouncement in Ayoade v. State (2020) LPELR-49379(SC) that where a party is given an opportunity and such party fails to utilise the same, then there cannot be a valid complaint of denial of fair hearing. It was contended that the Appellant was not accorded reasonable opportunity to defend herself and she then showcased the seven circumstances during which she was denied fair hearing thus:
i. The Court below refused to afford the Appellant time to prepare for trial and commenced trial on the same day that pleadings closed;
ii. The Court below discountenanced the pendency of the Appellant’s application for a certificate of means and proceeded with trial in the suit;
iii. The Court below refused the Appellant’s application for an adjournment and the foreclosed the Appellant’s right to cross-examine the Respondent;
iv. On the day originally fixed for defence and subsequently for ruling, the Court below refused the Appellant’s application for an adjournment and foreclosed the Appellant’s right to defend the case.
v. The Court below allowed the Respondent to orally deliver a final address on the day originally fixed for defence, and subsequently for ruling, and adjourned the matter to the next day for judgment;
vi. The Court below disregarded the Appellant’s motion for stay of proceedings pending before this Honourable Court and delivered judgment in the suit;
vii. The Court below proceeded to deliver judgment in the suit despite the pendency of the Appellant’s application for a certificate of means.
The Appellant’s Counsel referred to the case of Ecobank v. Bukas Kasmal Intl Ltd & Ors (2017) LPELR-43544 (CA), where this Court expressed that the trial Court’s decision to refuse the defendant’s application for an adjournment and proceed to hear the originating summons on the affidavit evidence of the Respondent alone was a capricious and injudicious exercise of discretion by the Court below and clearly amounted to an infringement of the appellant’s right to fair hearing.
Regarding refusal to afford the Appellant time to prepare for trial and the commencement of trial on the same day that pleadings closed, Counsel referred to the provisions of Order XI Rules 34, 35, 40 and 41 of the Matrimonial Causes Rules and the proceedings of the 17th February, 2021 when the lower Court suo motu ordered accelerated hearing of the Petition and contended that none of the instances mentioned in the Rules had taken place when the lower Court so ordered. Counsel further relied on Ecobank v. Bukas Kamal Intl Ltd & Ors (supra), per Georgewill, JCA., where it was stated that the granting or refusal of an adjournment sought by a party in the litigation battlefield is not as a matter of course, but rather it is one which involves the due exercise of discretion by the Court. Being therefore, a matter for the exercise of discretion of the Court, it must be so exercised judicially and judiciously and not whimsically or carelessly or capriciously or thoughtlessly or even perversely with scant or little or no regards to the facts and circumstances of the case. It was then submitted that prudence should have dictated that the Court below should grant the adjournment having regards to the facts and circumstances of this case. Counsel further rendered arguments in respect of the rest circumstances she outlined with the supporting legal authorities and urged this Court to resolve this issue in favour of the Appellant.
On issue 4, it was contended that the Respondent failed to satisfy the conditions under Section 15(2)(c) of the Matrimonial Causes Act that the marriage had broken down irretrievably and the lower Court was wrong to have granted a Decree Nisi for the dissolution of the marriage. Counsel referred to the cases of Ekrebe v. Ekrebe (1999) 3 NWLR (Pt. 596) 514 and Akinbuwa v. Akinbuwa (1998) 7 NWLR Part 559 page 661 and submitted that in a petition for dissolution of marriage, the petitioner must plead and prove that the marriage has broken down irretrievably based on one or more of the facts enumerated in Section 15(2) (a-h) of the Matrimonial Causes Act. It was pointed out that the Respondent’s Petition was based on the fact contained in Section 15(2(c) of the Act, that is to say, that since the marriage, the Respondent has behaved in such a way that the Petitioner cannot reasonably be expected to live with the Respondent. Counsel referred to the case of Nanna v. Nanna [2006] 3 NWLR Part 966 page 1 and submitted that the Respondent is under a duty to prove: (i) the sickening and detestable behaviour of the respondent and (ii) that the petitioner finds it intolerable to live with the respondent on account of that sickening and detestable behaviour. They are severable and both must be proved.
It was further submitted that conduct that would amount to such behaviour under Section 15(2)(c) of the Act is governed by the provisions of Section 16(1)(a)(g) of the Act. Therefore, the Petitioner must establish a conduct or act within the provisions of Section 16(1)(a) to (g) of the Act as highlighted in Nanna vs. Nanna (supra). It was then submitted that the Respondent completely failed to plead and demonstrate which of the circumstances in Section 16(1)(a) to (g) of the Act the Appellant’s conduct fell under since by his Petition, especially paragraph 13, the same was squared under Section 15(2)(c) of the Act. She said there is no corresponding reference to any of the factors under Section 16(1)(a) to (g) of the Act. It was further contended that despite the Respondent’s failure to establish any conduct or act of the Appellant that fell within the provisions of Section 16(1)(a) to (g) of the Act, the lower Court still held that the Respondent has proved the requirement of Section 15(2)(c) of the Act. Counsel urged this Court to hold that the finding of the lower Court was perverse and to set the same aside.
In respect of issue 5, which queried whether the Court below was right to have held that the Respondent had proved that the marriage had broken down irretrievably in the absence of credible evidence to that effect, Counsel firstly placed reliance on Sections 131 and 132 of the Evidence Act, 2011 and decisions in Ojoh vs. Kamalu (2005) 18 NWLR Part 958 page 523 and Intercontinental Bank PLC. vs. Hilman & Bros Water Eng. Services Nigeria Ltd (2013) LPELR-20670(CA) on whom lies the burden of proof in civil cases, that is to say, on the party who asserts the existence of a fact. Counsel further referenced the case of Bibilari vs. Bibilari [2011] 13 NWLR Part 1264 page 207 and submitted that in Nigeria, there is only one ground upon which a Court can make an order of dissolution of marriage, that is to say, that the marriage has broken down irretrievably. Counsel cited Jabre v. Jabre (1999) 3 NWLR (Pt. 596) 606 and submitted that a Petitioner in a Matrimonial Cause must prove that the marriage has broken down irretrievably to the reasonable satisfaction of the Court. Counsel further referred to Omotunde v. Omotunde [2001] 9 NWLR Part 718 page 252 and Bibilari v. Bibilari (supra) and stressed that reasonable satisfaction must entail a decision based on what a Judge acting judicially and judiciously would do in the circumstances and not based on the individual whims and caprices of the Judge. It was contended that the lower Court accepted some of the facts that had occurred several years about 7 to 10 years prior to the filing of the Petition for the dissolution of the marriage that broke down in 2020.
With regard to the remark of the lower Court that the Respondent’s evidence was uncontroverted by relying on the case of Military Governor of Lagos State & 4 Ors vs. Adeyiga & 6 Ors (2012) 205 LCRNI, it was submitted that the lower Court fell into a serious error as the case it relied on was not a petition brought pursuant to the Act and there was no requirement in that case to prove that a marriage has broken down irretrievably. Learned Counsel strongly contended that the Respondent’s evidence in the case was neither uncontroverted nor unchallenged, rather, the Appellant was prevented and precluded by the lower Court from controverting and challenging the Respondent’s evidence. Learned Counsel then urged that this issue be resolved in favour of the Appellant, allow the appeal and set aside the decision of the lower Court.
In the Respondent’s Brief of Argument settled by E. G. Nnoro Esq., but adopted before this Court by G. C. Igbokwe, SAN., the learned Senior Counsel for the Respondent, a Preliminary Objection was raised to the competency of the Notice of Appeal on three grounds.
On the first ground, it was argued that the Appellant, though, a party, is not aggrieved by the judgment of the lower Court to appeal against it as of right as decided in the cases of Mobil Producing vs. Monokpo (2003) 18 NWLR Part 852 page 346; Hassan vs. Borno State Govt. (2016) LPELR-40250; Ecobank vs. Broad Comms (2021) 5 NWLR Part 1769 page 209, per Tobi, JCA at page 251, in that she filed a cross-petition seeking the same relief of dissolution of the marriage on the facts as her principal claim and the marriage was dissolved. She also sought for monetary demands and two SUV vehicles of which she was awarded N50,000,000.00 and two SUV vehicles. It was contended that since there is no appeal against monetary award for upward review or against the two SUV vehicles awarded, they remain valid and binding on the parties and this Court too. He relied on the decisions in Saleh vs. Abah (2017) 23 WRN 1 SC. 2; GTB vs. Innoson Ltd (2017) 48 WRN 1 SC; Ardo V INEC (2017) LPELR-41919 (SC.); Adepoju V Yinka (2012) 1 SC 125 and Salik vs. Idris (2014) 15 NWLR (pt. 1429) 36 and submitted that in the absence of an appeal against these two positive decisions and orders of Court and the granting of the relief of dissolution sought by the Appellant; this appeal becomes completely academic and ought to be struck out.
On the second ground which alleges incomplete parties as contained in the heading of the Notice of Appeal, it was argued that by including the name of one Justina Ochuko as the 2nd Cross-Respondent, the Appellant automatically made her a party to the suit and she remains a party for all purposes including this and subsequent appeals. Learned Counsel then made reference to the decisions in the cases of Apeh vs. PDP (2016) LPELR-40726 (SC); P.P.A V INEC (2012) 13 NWLR Part 1317 page 215; In Re: Apeh & Ors (2017) LPELR 42035 (SC); and Oredoyin vs. Arowolo (1989) 4 NWLR (pt. 114) 272 and submitted that the Appellant does not have the right to choose the parties to appeal against or to change the parties to a suit at his whims and caprices. He further submitted that an appeal is a continuation of the trial, therefore, the absence of the 2nd Co-Respondent in the Notice of Appeal has rendered the same invalid and divested this Court of the requisite jurisdiction to determine it.
The third ground is pivoted on paragraph 2 of the Notice of Appeal which the Respondent argued is vague, incongruous, confusing and certainly not part of the decisions contained in the judgment. It is said to relate to Part of the rulings of the Court made before the trial commenced. The date is not indicated thereby leaving the Respondent and the Court to speculate. He argued that the Notice of Appeal is invalid and the appeal incompetent. He cited Emokpae vs. Stanbic IBTC Pension Managers (2021) 35 W.R.N 86, per Eko, JSC., in support. He further drew attention to the relief contained in the Notice of Appeal which he said is clumsy and the decisions in UBA vs. Ayangbade (2021) 31 WRN 63 this Court held per Tukur JCA; Adegbola vs. Osiyi (2017 46 W.R.N 30 SC; Ezim vs. Menakaya (2017) 45 W.R.N 37 SC and Natsaha vs. State (2017) 33 W.R.N 1 SC and submitted that the Notice of Appeal was fundamentally defective at the time of filing which renders the appeal incompetent and liable to be struck out.
Submitting in respect of the substantive issues before this Court, the Respondent in his response to issue 1, strongly contended that it is a non-issue as no reference of it whatsoever was made at any page or part of the record from which this Court can infer or find that the judgment or any part of the proceedings was conducted or taken in chambers. He submitted that an appellate Court is bound only by what is contained in the record of appeal and must not go outside it to reach a decision. He relied on Orugbo vs. Una (2002) 16 NWLR Part 792 page 178; State vs. Ibrahim (2021) 39WRN 81; Audu vs. A. G., Federation (2012) LPELR-15527 (SC) and Gov. Imo State vs Amuzie (2021) 26 WRN 1 in support. He particularised the opinion expressed by Ogunwumiju, JSC in State vs. Ibrahim (supra), at 97 that an appellate Court has no jurisdiction to read into the record what is not there and it equally has no jurisdiction to read out of the record what is contained therein. He cited the cases of Nigerian Navy vs. Labinjo (2012) 16 LPELR-7868 SC; Dingyadi vs. INEC (2010) LPELR-40142 SC; Sifax Nig. Ltd vs. Migfo (2018) 16 LPELR-49735 SC; Aghareh vs. Mimra (2008) LPELR-43211(SC); Nuhu vs. Ogele (2003) 18 NWLR Part 852 page 251 and Access Bank v Onwuliri (2021) All FWLR Part 1099 page 519 and submitted that parties and the Court must rely on the record in the determination of the appeal, the appellate Court is bound by the record of appeal and the record only and has no jurisdiction to venture outside the record to draw conclusions which are not supported by the record.
It was submitted that there are known means of challenging the correctness of record of appeal which has not been done by the Appellant. He submitted that in the absence of any challenge to the record of appeal, it is deemed correct and the Courts, parties and Counsel must be bound by it. Learned Counsel also highlighted the expression of Kekere-Ekun, JSC., in Access Bank vs. Onwuliri (supra), that the record of proceedings serves as the reference on which to base any material for the appellate Court upon any of its findings. He submitted that in the absence of any part of the record showing that the proceedings or part of the proceedings or the judgment in this matter was conducted outside the Court hall, this issue is unsustainable.
With regard to issue No. 2, it was contended that though the Appellant hinged the argument in this respect on the provisions of Rules 34, 40 and 41 of Order XI of the Matrimonial Causes Rules, she has not shown how the said Rules are applicable to her. In his response to the contention touching on the order for accelerated hearing of the Petition, he argued that the orders for accelerated hearing were specific orders made by the Court in its ruling delivered on 17/3/2021. He specified the two occasions at pages 238-139 and 109 and 123 of the record when the lower Court made such orders and stated that it is trite law that an order not appealed against remains valid and binding. He cited Chief Ogunyade v. Oshunkeye & Anor (2007) 15 NWLR Part 1057 page 218 at 257 and S.P.D.C NIG. LTD vs. Edamkue & Ors (2009) LPELR-3048 (SC) in support. He further cited the cases of Mobil Producing vs. Monokpo (2003) 18 NWLR Part 852 (without the page) and Hassan vs. Borno State Govt (2016) LPELR-40250 and submitted that it is ridiculous for the Appellant to complain against the orders of accelerated hearing that were made in her favour, support and for her benefit.
Counsel then relied on Odutola Holdings vs. Ladejobi (2006) 12 NWLR Part 994 page 321; Onyeso vs. Nnebedun; Oni-Orisan vs. Edunjobi (2018) LPELR–49368; Aboyeji vs. Atoyebi (2018) LPELR 44975; FATB vs. Ezegbu (1993) LPELR-1279 and Oni-Orisan vs. Edunjobi (supra) and submitted that an order for accelerated hearing is one of the consequential orders that every trial or appellate Court has inherent jurisdiction to make when an order for injunction is granted or refused and it is a discretion usually exercised to ease inconveniences and pain of the parties in the peculiar circumstances of each case. He argued that the order for accelerated hearing of a matter to a specific date done by the lower Court does not amount to or foreclose an application to set same down for hearing but gives priority of time to the matter towards its expeditious hearing and determination. He also referred to Kalejaiye vs. Kalejaiye (1986) 2 QLRN 16 and submitted that the lower Court was right in adjourning the matter to 3/3/2021 for hearing with the consent of respective Counsel for the parties. He cited the case of Ejiofor vs. Ejiofor (2016) LPELR 40963, per Ogunumiju JCA (as he then was) where it was held inter alia that “Order XXIII Rule I provides that where parties have consented to making orders and directives on issues relating to the proceedings, nothing in the Rules shall nullify same or prevent the Court from going ahead to act on those orders and directives mutually consented to…” He contended that in the light of above, the Appellant is precluded from reneging on her consent.
Also, on the contention on Order XI Rule 40 sub-rules (1),(2) and (6), it was submitted that the Appellant has not shown that those provisions are applicable to her case. It was submitted that as at the time the petition was fixed for hearing, it was an undefended suit in that the Appellant’s Answer to the Petition was not then filed. It was then deemed duly filed on 19/5/2021. He explained that the 28 days the Appellant had to file her Answer expired on 2/2/2021 and she did not file any until 3/3/2021. As at 17/2/2021 when the order for accelerated hearing was made, the suit was undefended. Also as at 26/2/2021 when the application for the Petition to be set down for hearing was filed, the suit was still undefended. Counsel blamed the Appellant for the various motions she filed to the detriment of filing her Answer within time. He argued that those Orders were made when the Appellant’s time to file her Answer had expired. He further stressed that it was self-inflicted circumstances fuelled by the Appellant’s indolence and tardiness. He cited A. G., Rivers State vs. Ude & Ors (2006) LPELR-626 (SC) and Elumeziem & Ors vs. Amadi (2014) LPELR-22459 (CA) in support.
It was also contended that the incidents of compulsory conferencing or certificate of means are not applicable to the circumstances of this matter, that they only apply where the Court is required to make preliminary findings or orders before the hearing of the substantive suit. He made reference to Owolabi vs. Owolabi (2022) 9 WRN 71 on the definition of ancillary reliefs and it was stated that under Order XIV Rule 4 of the Matrimonial Causes Rules, a separate proceedings is envisaged by the law. He then urged this Court to resolve this issue against the Appellant.
Submitting in respect of issue 3, it was contended that the Appellant was not denied her fundamental right to fair hearing. He cited the cases of INEC vs. Musa (2003) LPELR 24927 SC; Adingarwa vs. Assandariyu (2021)44 WRN 137; Ariori v. Elemo (1983) LPELR-552; BIO vs. State (2020) 306 LRCN 190; Newswatch Communications vs. Atta (2006)12 NWLR Part 993 page 144; INEC vs. Musa (supra) on what it entails to give a party fair hearing, that it is giving a party opportunity to be heard and the party cannot complain if he fails to utilize the opportunity given to him. He submitted that apart from the principle laid down by the Supreme Court in Kalejaiye vs. Kalejaiye (1986) 2 QLRN16) that divorce petitions should be treated most expeditiously, there was also an existing Order of accelerated hearing made by the lower Court on 17/2/2021 in favour of the Appellant. He reiterated his arguments under issue 2 regarding the complaints of the Appellant and her tardiness by resorting to frivolous applications to stall the trial and forgot her Answer to the Petition.
He emphasised on the consequences of a decision not appealed against as it is deemed accepted and remains binding on the parties. He supported the same with the cases of Ogueze vs. Ojiako (1962)1 SCNLR 112; Labour Party vs. INEC (2009) LPELR-1732 SC; Ibrahim vs. Ogunyomi (2021) 23 WRN 27; Odiase vs. Agho (1972) 1 ALL NLR Part 1 page 170; Melifonwu vs. Egbuji (1982) 9 SC 145 and Ibrahim vs. Ogunyomi (supra). Learned Counsel also made reference to Makinde v. Akinwale (1995)6 NWLR Part 399 page 5; N.N.S.C vs. Sabina (1988) 2 NWLR Part 74 page 23; UBA vs. Ayangbade (2021) 31 WRN 63; Odey vs. Alaga (2021) 22 WRN 1; F.R.N vs. Dairo (2015) 6 NWLR Part 1454 page 141; Osareren vs. F.R.N (2018)10 NWLR Part 1627 page 221 and Odey v. Alaga (supra) where it was stated that Courts must not allow the use of frivolous false objections to frustrate the due process of adjudication. He referred to the lower Court’s observation at page 415 of the record where the Respondent was given ample opportunity to be heard but she allowed her Counsel to file frivolous applications to her detriment. He said that the applications were frivolous and unnecessary because of the peculiar nature and circumstances of the case and were clearly avoidable. He also referred to pages 403-408 of the record of appeal for highlight. Counsel contended that by the order for accelerated hearing and adjournment of the Petition with the consent of the parties, it means that the motions filed within that period may be taken but not to the detriment of the hearing unless and until the Order of 17/3/2021 is set aside.
He explained that on 19/5/2021, all the pending motions filed by the Appellant were taken and the case was adjourned to 7/6/2021 for hearing. On 7/6/2021, report of reconciliation moves was made to the Court as having broken down and the matter was further adjourned to 21/6/2021 for hearing. On the said 21/6/2021, the Appellant’s Counsel filed two applications in the same morning the case was slated for hearing ostensibly to stall the proceeding of that day. The two applications were moved and granted by the lower Court but the Appellant still sought an adjournment on the basis of Certificates of Means the Court had granted her leave to file. He said that the application for adjournment was opposed which the Court upheld and then permitted the Petitioner to open his case. After the testimony in chief, the Appellant’s Counsel then sought for an adjournment to enable him obtain the materials he needed for the cross-examination which the Court refused and then foreclosed the Appellant’s right to cross-examine the Petitioner and then adjourned to 3/7/2021 for defence to open. He further submitted that the Appellant’s complaint that the trial commenced on the day pleadings closed is preposterous. She cannot complain of not having been given adequate time to prepare her case since she knew what the business of the Court on that day was. He said that the Court took into consideration the peculiar circumstances of the case which include the fact that there is a pending order for accelerated hearing and the matter was fixed at a point when the matter was undefended.
Regarding the complaint on certificate of means, Counsel argued that it is not applicable to the instant matter because it was applied for on an erroneous impression and misconception that she has ancillary reliefs in the petition. He said that ancillary reliefs relate to separate intermediary or interlocutory applications for maintenance pending the determination of the substantive suit. He stated that Appellant’s relief IV(a), (b), (c) and (d) were substantive reliefs grantable at the end of trial and not ancillary reliefs. He referred to Owolabi vs. Owolabi (2022)9 WRN 7 and argued that by Rule 17 a Certificate of Means can only apply to where proceedings for ancillary reliefs have been instituted therefore, the Appellant’s application for leave to file for certificate of means though taken and granted was a complete nullity.
Then on the complaint bordering on breach of principles of fair hearing, it was contended that the date of 15/7/2021 was chosen on record by the respective Counsel for the parties. He said that the Appellant filed a motion for stay of proceedings which was argued and refused whereupon the Court invited the Appellant to open her defence but that was impossible due to the absence of the Appellant’s only witness in Court and the news allegedly touted by the Appellant’s Counsel of the sudden demise of his father. Counsel said it was a prank and trap employed by the Appellant’s Counsel in the conduct of the case. He referred to the lower Court’s observation at page 400 of the record that the application for adjournment was made in very bad faith and that the Respondent was not interested in defending the case. He submitted that the holding of the Court was not challenged nor contradicted by the Appellant. He referred to the cases Agbabiaka vs. F.B.N PLC (2020) 303 LRCN 88; Ayoade vs. State (2020) 302 LRCN 102; BIO vs. State (supra) and Agbabiaka vs. F.B.N PLC (supra) where the Supreme Court, per Eko, JSC., stated that it is not the duty of Courts to wait upon parties endlessly to do their cases and that the grant or refusal to grant adjournment is a matter of discretion and it depends on the facts and circumstances of each case. He further referred to Ayoade’s case where it was held that the basic requirement in attaining fair hearing is to create and give opportunity to parties and a party who fails to use that window, cannot complain. He also made reference to the Supreme Court case of Dasuki vs. F.R.N (2018) LPELR – 43897, per Eko, JSC., over the Appellant’s complaint about the adjournment of the judgment to the following day after she was foreclosed and her oral address. He argued that the consequence of foreclosing the Appellant is that her Answer and Cross Petition becomes abandoned. The matter relapses to an undefended petition which gives the trial Court the powers and rights to treat it as such. He said it was in that respect the trial Court took the oral addresses of the respective Counsel immediately after that and reserved judgment the following day. Counsel further said that the lower Court having foreclosed the Appellant’s defence, had only the single evidence of the Respondent and the short address of his counsel to contend with and it delivered a well detailed and articulated judgment the following day. Learned Senior Counsel said that the trial Judge deserves commendation rather than condemnation especially when the Appellant could not and have not shown how the early and prompt delivery of the judgment prejudiced her. He made reference to the cases of Ayoade vs. State (supra); Gbadamosi vs. Dairo (2007) 3 NWLR Part 1021 page 282; Adebayo vs. A. G., Ogun State (2008) 7 NWLR Part 1085 page 201 where it was held that it is not enough for a party alleging such a breach to merely mention fair hearing and expect the Court to automatically side with him… the facts of his case must show that the said right was indeed violated. I have also taken cognisance of the arguments of Counsel from pages 25 to 28 of the Respondent’s Brief of Argument. He therefore urged this Court to hold that the Appellant has not shown that her right to fair hearing was breached or violated especially when she was given ample opportunity to present her case and she failed to do so.
Learned Counsel argued issues 4 and 5 together and then referred to the lower Court’s holding at page 412 of the record that the petitioner had proved the requirements of Section 15(2)(c) of the Matrimonial Causes Act for the Court to hold that the marriage has broken down irretrievably. He contended that in holding as such, the lower Court took into consideration the peculiar circumstances of the case, that is to say, the fact that the Respondent refused to cross-examine the petitioner when given the opportunity to do so and also failed to defend the petition when called upon to do so resulting in her pleadings being struck out, the effect being that the petitioner’s evidence was unchallenged and the Court was bound to accept it. He relied on N.U.P vs. INEC (2021) 17 NWLR Part 1805 page 305; Thompson vs. Akingbehin (2021) 16 NWLR Part 1802 page 283; Kayili V Yilbuk (2015) LPELR-24323 SC; and Kayili V Yilbuk (supra) per Ogunbiyi JSC where it was held that the law is trite and enjoins a Court to act on an unchallenged evidence. He further made reference to the cases of Thompson vs. Akingbehin (supra), per Okoro, JSC., and Ogunyade vs. Oshunkeya (2007) LPELR-2355, per Musdapher JSC on the effect of unchallenged evidence of a party in a proceeding. It was held that it is always open to the Court seized of the proceedings to act on the unchallenged evidence before it. He referred to the case of Military Governor Lagos State vs. Adebayo (2012) 205 LRCN 1 relied upon by the lower Court and submitted that the lower Court carefully reviewed the evidence of the petitioner at page 400 of the record and accepted it as having satisfied the requirements of Section 15(2)(c) of the Matrimonial Causes Act. He outlined the alleged conduct of the Appellant at paragraph 4.79 of the Respondent’s Brief and submitted that the operative opening phrase of Section 15(2)(c) is “..That since the marriage..” meaning that the bad behaviours of the Respondent could span the length of the marriage and is not restricted to any part of the same. It is the entire history of the marriage, that is the totality of the matrimonial history that counts in determining the behaviour of the Appellant that cannot be tolerated. He further referred to the evidence of the Respondent that for about ten years there has not been any sexual relation with the Appellant contrary to Section 15(2)(a). He then submitted that the conclusion of the lower Court that the marriage between the parties had broken down irretrievably cannot be faulted especially with the absence of cross-examination and contrary evidence from the Appellant. He urged this Court to resolve issues 4 and 5 against the Appellant.
In the Appellant’s Reply Brief of Argument, the Appellant responded to the Respondent’s argument on the preliminary objection raised by him. On the assertion that the Appellant is not aggrieved by the judgment, it was submitted that a litigant’s right of appeal against a judgment is premised on him being a party on the record. He reproduced the provisions of Section 243(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended, and submitted that this right can be exercised by any party on record whose name appears on the process either as of right or with the leave of Court. Counsel submitted that the instant appeal is not one that requires the leave of the Court below. He further referred to Section 241(1)(a)-(f) and listed the instances wherein a party is allowed to appeal a decision of a High Court to this Court as of right which includes where the appeal is against a final decision or any decision in the case of a decree nisi in a matrimonial cause. It was submitted that the instant appeal falls within both categories.
I have also taken into consideration the responses offered by the Appellant to the remaining grounds of the objection and the contentions of the Respondent in respect of the appeal itself.
I will now consider the preliminary objection raised by the Respondent. The Respondent raised a three point preliminary objection against the Notice of appeal on the grounds that (a) the Appellant is not a party aggrieved by the judgment to appeal against it; (b) incomplete heading of parties and (c) the vague nature of paragraph 2 of the Appellant’s Notice and Grounds of Appeal.
In respect of the ground that the Appellant is not aggrieved by the judgment that was delivered in her favour, it is pertinent to point out that the Appellant bitterly complained about the lower Court’s foreclosure of her right to cross-examine the Respondent and worse still foreclosure of her right to present her defence in the matrimonial proceedings. All these took place in the course of hearing in the proceeding. It is indisputable in her appeal that the Appellant is yearning for the right to be heard and present her case irrespective of whether the judgment was given in her favour or not. The Amended Notice of Appeal was filed by the Appellant who was the sole Respondent in the Petition filed by the Respondent herein in the matrimonial causes proceedings. It is trite law as expounded in Imegwu vs. Okolocha & Ors (2013) LPELR-19886(SC) that: “There is no doubt, every aggrieved party has constitutional right of appeal to challenge the decision of the Court below in this Court. In other words, right of appeal to this Court is constitutionally guaranteed and cannot be denied or removed by any subsidiary legislation except by the same Constitution. See Section 233 of the 1999 Constitution (as amended)”, per Ariwoola, JSC, (as he then was).
I must say there were serious allegations of breaches of principles of fair hearing which were paramount in the complaints of the Appellant. It is trite law that once right to fair hearing is violated, it is irrelevant whether a decision made subsequent thereto is correct. See Victino Fixed Odds Ltd vs. Ojo & Ors (2010) 8 NWLR Part 1197 page 486 wherein Tukur vs. Government of Gongola State (1989) SCNJ 1 was referred to. The Supreme Court, per Fabiyi, JSC., went further to state that on a breach of the right of fair hearing, an Appellate Court does not go to the reasons for its breach or the consequences of same. It has no alternative but allow the appeal against the decision and treat it as though there has been no hearing at all. An Appellate Court is bound to follow this course in the hearing of the appeal. See Adigun & Ors. v. A.G. Oyo State & Ors. (1987) 2 NWLR (Pt. 56) 197. A denial of the right to be heard is a breach of constitutional right, natural justice and Rules of Court. Such cannot and ought not be condoned in any respect. See Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587. It is a basic and fundamental principle of the administration of justice that no decision can be regarded as valid unless the trial Judge or Court has heard both sides in the conflict. See: Deduwa v. Okorodudu (1976) 9 – 10 S.C. 329.” Also in Deduwa & Ors vs. Okorodudu & Ors (1976) LPELR-936(SC), the Supreme Court, per Alexander, JSC., articulated that it is immaterial whether or not a Court has heard one party or both parties to a suit, or whether or not one party or the other has wilfully absented himself from the hearing or failed to give evidence, and that once a trial has commenced after issue has been joined on the pleadings, there is a hearing to which the test of fairness under Section 22(1) of the Constitution may be applied, within the context of the proceedings between the parties as a whole. If, of course, there is no hearing of one party’s side of the case, especially if it is through no fault of his own, this may also amount to no ‘fair hearing’ of his side of the case and he will not have had a ‘fair hearing’ in the determination of his civil rights and obligations to which he is entitled under Section 22(1) of the Constitution. If it may be fairly inferred by reasonable persons sitting in Court, from the circumstances, that there is a real likelihood of bias, against one of the parties, on the part of the trial Court, it must follow irresistibly that that party’s right to a fair hearing has been contravened and that any decision on the issue between the parties by the trial Court in such circumstances cannot stand.” (Underlining mine.
In Padawa & Ors vs. Jatau (2002) LPELR-5380(CA), this Court per Muhammad, JCA., (as he then was) stated that “An appellant means any person who desires to appeal or appeals from a decision of the Court below or who applies for leave to so appeal, and includes a legal practitioner representing such a person in that behalf. He is the one who opposes the ruling or judgment of the Court below. Ichu v. lbezue (1999) 2 NWLR (Pt. 591) 437. The question raised by learned Counsel for the respondent is: Can the 1st – 7th defendants in the circumstances of this case, appeal in respect of the lower Court’s ruling of 21/11/97? This calls for the determination of who has the right of appeal and under what circumstances? It has been made clear by the Supreme Court that a right of appeal to the Court of Appeal is a Constitutional right exercisable by a party in a civil suit. Eyesan v. Sanusi (1984) 4 SC U5 at 136, (1984) 1 SCNLR 253. The Constitution of the Federal Republic of Nigeria, 1999, provides in Section 243(a) that any right of appeal to the Court of Appeal from the decisions of a High Court in civil proceedings is exercisable at the instance of a party thereto, or, with the leave of the High Court or the Court of Appeal, at the instance of any other person having an interest in the matter. Thus, each of the plaintiff and defendant or the applicant or petitioner and the respondent in civil proceedings has a right of appeal. By necessary extension of the rule therefore, the parties or any other person named in the record could appeal. A non-party not named on the record but having an interest in the matter must apply for leave in order to appeal. However, the important point to note is that a party appealing must have been aggrieved by the decision as a party cannot appeal against a decision in his favour. See Prof Awojobi v. Dr. Ogbemudia (1983) 8 SC 92…In other words, a person who wishes to appeal in such circumstances must show that he was aggrieved by the decision, in the sense that he had suffered a legal grievance. He must show that the decision wrongfully deprived him of something, or wrongfully refused him something.”(Underlining mine)
It is evident in the record of appeal before this Court that the Appellant herein was the Respondent/Cross-Petitioner in the Court below, so she was a party to the suit. Although the judgment of the lower Court was seemingly made in her favour, her grouse or grievance as per her Amended Notice of Appeal was that there were fundamental breaches of the conditions precedent to setting down the petition down for hearing and hearing of the suit and delivery of judgment that nullified the entire proceedings conducted by the lower Court.
On who is aggrieved, the Supreme Court, per Ariwoola, JSC., (as he then was) in Abacha vs. FRN (2014) LPELR-22014(SC), distinctly stated that: “To be aggrieved, a person must have legal rights that are adversely affected, having been harmed by an infringement of legal rights. A person aggrieved must be a person who has suffered a legal grievance, a person against whom a decision has been pronounced which has wrongfully deprived him of something or wrongfully refused him something or wrongfully affected his title to something. See In Re: Alhaja Afusat Ijelu & Ors Vs. Lagos State Development & Property Corporation & Ors (1992) NWLR (Pt. 266) 414; (1992) LPELR 1464. The Court below was therefore correct in holding that in the instant context, the expression “person aggrieved” refers to any person whose legal right was invaded by the forfeiture order, whose financial interest was directly and adversely affected by the said Decree and whose right or property may be established or divested.”
In the instant case, the Appellant complained about the emasculation or deprivation of her constitutionally guaranteed rights under Section 36(1) of the Constitution of the Federal Republic of Nigeria to be heard in the proceeding by the lower Court. The Supreme Court had held in a plethora of cases including the case of Adigun vs. A. G. of Oyo State (1987) 1 NWLR Part 56 page 197 referred to by the Appellant’s Counsel in the Appellant’s Reply Brief that where a party has been denied fair hearing the entire proceeding no matter how well conducted will amount to a nullity, that it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The Appellant equally alleged non-compliance with condition precedent before the hearing of the matrimonial causes proceeding at the lower Court. In Okafor vs. A.G.& Commissioner for Justice (1991) LPELR-2414 (SC), it was held “that any breach of the provisions of the fundamental right provision renders the act subsequent to such breach a nullity. See Adigun v. A-G of Oyo State (supra). Since the denial of the right to address has deprived the trial Judge the benefit of such address, it cannot be asserted with certainty that a miscarriage of justice has not occasioned.- See Obodo v. Olomu (1987) 3 N.W.L.R. (Pt.59) 111; Adigun v. A-G of Oyo State (1987) 1 N.W.L.R (Pt.53) 678.”
It is trite law that a Court can only be competent among other things if all the conditions precedent to its jurisdiction were fulfilled. The Appellant demonstrated all these in her Notice of Appeal and arguments before this Court. In the instant case, the Appellant had in her arguments illustrated how she was aggrieved by the denial of her right to fair hearing and the deliberate refusal by the lower Court to abide by the conditions precedents articulated in Order XI Rules 34, 35, 40 and 41 of the Matrimonial Causes Rules. I must observe that there could not have been a better manifestation of grievance or grievances in an appeal than as embarked upon by the Appellant in her Notice and Grounds of Appeal. She is certainly a person aggrieved, therefore, I would have no difficulty in overruling this ground of the preliminary objection.
The second leg of the preliminary objection is pivoted on the allegation of incomplete parties as contained in the heading of the Notice of Appeal. In this respect, it is necessary to refer to the Supreme Court decision in Senator Rashid Adewolu Ladoja vs. Senator Abiola Adeyemi Ajimobi & Ors (2016) LPELR-40658 (SC), per Ogubiyi, J.S.C., on whether a party to an appeal is bound to maintain and sustain the appeal between the same parties and on the same subject, and it was held that “With the appeal against the extant judgment of the Tribunal, the 1st Cross- Respondent (Appellant before the lower Court) is bound to maintain and sustain the appeal between the same parties and on the same subject”. Also in Apeh vs. P.D.P (supra) The Supreme Court further cautioned that Notices of Appeal, applications for leave to appeal, Briefs of Arguments and all other documents whatsoever prepared in pursuance of the appellate jurisdiction of the Court for filing in accordance with the provisions of the Rules shall reflect the same title as that which obtained in the Court of trial. In other words, a proper application must necessarily, reflect the title of the case as it was in the proceeding leading to the appeal and the application.
It is worthy of note that the parties on the Notice of Appeal filed on 1/9/2021 are: Mrs. Agnes Ikpea and Chief Leemon Ikpea. Then the names of the parties as distinctly stated by the lower Court in its judgment delivered on 16/7/2021, now being appealed against by the Appellant are thus: “Chief Leemon Ikpea—Petitioner/Cross-Respondent And Mrs. Agnes Ikpea—Respondent/Cross-Petitioner. ”It is clear that no other name was included or added by the lower Court in its judgment. In fact, the lower Court after its reasoning in pages 408 and 409 of the record of appeal, struck out the Respondent’s/Cross-Petitioner’s Answer and Cross-Petition filed on 3/3/2021 but deemed filed on 19/5/2021, and her Cross-Petitioner’s Reply to the 1st Cross-Respondent’s Answer to the Cross-Petition filed on 21/6/2021. By the said Order striking out the Appellant’s Answer and Cross-Petition wherein one Justina Ochukwu was cited as the 2nd Cross-Respondent, it follows that the said 2nd Respondent, as at the time the lower Court concluded the delivery of its judgment on 16/7/2021 was no longer a party to the Cross-Petition. The lower Court did not print her name as a party on its judgment. The judgment of the lower Court was in respect of the Petition filed by the Respondent herein where only the Respondent and the Appellant were the named parties in the matrimonial causes proceedings.
It is evident at page 421 of the record of appeal that the judgment of the lower Court appealed against by the Appellant was the judgment delivered on 16/7/2021 in respect of the Respondent’s own Petition. The Appellant’s Answer and Cross-Petition citing a 2nd party was conspicuously struck out by the lower Court in the body of its judgment. It is trite law that once a process is struck out it is deemed as if it has never existed before and until it is relisted upon application to that effect, it remains dead and buried. In the instant appeal, the Appellant’s Answer and Cross-Petition was struck out by the lower Court and the same was not decided upon by the lower Court. In struck out matters, the Courts lack jurisdiction to make any subsequent order on it. See SPDC vs. Agbara & Ors (2015) LPELR-25987(SC), per Muhammad, JSC. It follows that since the Appellant’s Answer and Cross-Petition had been struck out, the names of all the parties mentioned therein including the party cited as the 2nd Respondent automatically fizzled out or were erased from the record. All the names of the parties therein were obliterated and can never be exhumed without an order of the Court directing re-listing of the process. Accordingly, this limb of the Respondent’s preliminary objection also fails.
The third limb relates to paragraph 2 of the original Notice and Grounds of Appeal filed by the Appellant which failed to state the part of the judgment being complained about. Well, as rightly pointed out by the Appellant’s Counsel, this has been addressed by the Amended Notice of Appeal of the Appellant filed on 7/4/2022. The Appellant was granted the leave of this Court on 7/4/2022 to amend her Notice of Appeal and the anomaly was corrected. At this juncture, I find quite apposite the expression of Muhammad, JSC, in the decision of the Supreme Court in South Atlantic Petroleum Limited vs. The Minister of Petroleum Resources & Ors (2018) 6 NWLR Part 1616 page 391 on whether a Notice of Appeal can be amended at any time and whether such amendment can be effected even after a preliminary objection has been raised and argued by the Respondent pointing out the errors in his Brief of Argument. He said thus:
“In Tsokwa Oil Marketing Co. V. B.O.N. Ltd (supra) this Court has held that the filing of preliminary objection showing errors in the process of an appeal will not prevent the appellant from making an application to seek to correct the errors. It remains the principle as well that the appellant can even start the process afresh on a more appropriate footing.”
I must observe that even though the Respondent did not argue on the validity of the correction already made by the Appellant in the Appellant’s Amended Notice of Appeal, the law is that the Appellant is entitled to make such amendment and that having been made, had knocked off the Respondent’s objection in this regard. I am, therefore, inclined to agree with the expatiations and submissions of learned Counsel for the Appellant on those three spheres. In view of the foregoing, the preliminary objection is hereby overruled.
Now turning to the appeal itself and in determining the first issue raised by the Appellant which queried whether the Court below was right to have delivered the judgment in this case in Chambers in violation of Section 36(3) of the Constitution of the Federal Republic of Nigeria, I would observe that there is nothing on the record of appeal indicative of the fact that the lower Court delivered the judgment in question in Chambers. In the absence of such valid evidence, this Court cannot conjecture or speculate what might have transpired in the lower Court on 16/7/2021 when it delivered its judgment. The record of appeal did not manifest any protest on the part of the Respondent’s Counsel at the time the said judgment was about to be read in the Chambers. That indeed was the correct time to have objected or raised the issue and Counsel ought to have insisted on being recorded. Once there is no indication on the face of the record of appeal that the judgment was delivered in Chambers, that is, to the exclusion of the public as required by law, the proper inference that could be drawn is that the judgment was delivered in the open Court, in public as required by law.
As rightly argued by respective Counsel for the parties, the law is trite that an appellate Court cannot go outside the records of appeal in search of evidence favourable to any of the parties. Like pleadings which bind parties at the High Court, the Court of Appeal and the Supreme Court, as appellate Courts, are clearly bound by the records of appeal. In other words, records of proceedings or appeal, bind the parties and the Court until the contrary is proved. This is because there is a strong presumption of the genuineness of the record which is rebuttable. See Sommer vs. Federal Housing Authority (1992) 1 NWLR Part 219 page 548; Texaco Panama Inc. of Nigeria Ltd. vs. Shell Petroleum Development Company (Nig.) Ltd. (2002) 5 NWLR Part 759 page 209; Ogolo vs. Fubara (2003) 11 NWLR Part 831 page 231 and Nuhu vs. Ogele (2003) 18 NWLR Part 852 page 251. The Court is not only bound by the records of appeal but is also bound to examine the state of the record on the conflicting claims of the parties.” See Audu vs. FRN (2013) 5 NWLR Part 1348 page 397, Mohammed, JSC (as he then was).
See also Onwuka vs. Onwuka (2017) LPELR-42281(CA) where this Court per Mbaba, JCA., observed that: “The assertion that the judgment was delivered in Chambers, can only be established in the printed Records of the Appeal, in the absence of concurrence or agreement on the issue in the affidavits of the parties/counsel, who appeared in the matter. Calling for oral evidence, in the circumstance, would in any view, amount to an indictment of the Records of Appeal, and would be a reliance on strange and adjunct process as record of proceedings at the trial of the suit, and that would be dangerous, for establishment of certainty of a Record Appeal. See Ayangoke & Anor vs. Keystone Bank Ltd (2013) LPELR – 21806 (CA), where this Court said: “I have closely studied the Records of Appeal… which bear out the proceedings at the hearing of the suit and the address of Counsel and I have not had an inkling that the judgment of the lower Court was delivered in Chambers or anything to suggest that the proceedings of the Court were conducted in chambers of the Judge… By law, no Court has the jurisdiction to go outside, the records to draw conclusions which are not supported by the (Records of) Court.” See, again, Garba vs. Omokhodion (2011) 15 NWLR (Pt.1269) 145 at 180.”
Needless overstretching this obviously inconspicuous and unsubstantiated allegation of delivery of the judgment of the lower Court in the Chambers in the face of the record of appeal. I, therefore, resolve issue 1 against the Appellant.
Regarding issue 2, it was contended by the Appellant that the matrimonial causes proceeding was set down for hearing in contravention of the provisions of Order XI of the Matrimonial Causes Rules particularly rules 34, 40 and 41. It should be noted that the proceedings under Order XIV Rule 4 of the Matrimonial Causes Rules referred to by the Respondent’s learned Senior Counsel is in respect of ancillary relief being proceedings for an order with respect to the maintenance, pending the disposal of proceedings of one of those parties or of a child of a marriage. It is about ancillary proceedings pending the disposal of proceedings of a party to a marriage or of a child of a marriage. It is different from ancillary proceedings to which Part 6 of Order XI of the Matrimonial Causes Rules apply. This was made clear by Order XIV Rule 17 which deals with Certificates of means. By Order XIV Rule (17)(2) in proceedings for ancillary relief to which this rule applies, that is, being proceedings for an order with respect to maintenance, pending the disposal of proceedings of one those parties or of a child of a marriage, a party to the marriage may make application to a Court for a Certificate of Means with respect to the pecuniary resources of the parties to the marriage and the capability of each of those parties to earn income. However, when it relates to proceedings for ancillary relief (not being proceedings for maintenance pending the disposal of other proceedings) included in a suit to which Part of Order XI of these Rules applies before a conference for the purpose of that Part has been held, the application for certificate of means cannot be made except by leave of the Court. Part 6 of Order XI deals with Compulsory Conferences. Rule 33(a) provides for compulsory conference and it says it applies:
“Where
(a) a defended suit includes proceedings with respect to-
(i) the maintenance of a party to the proceedings;
(ii) settlements;
(iii) the custody or guardianship of an infant child of the marriage to which the proceedings relate; or
(iv) the maintenance, welfare, advancement or education of a child of that marriage, and the petitioner and respondent are not in agreement as to the order that should be made by the Court upon the trial of those proceedings in the event that the Court does not make an order dismissing those proceedings; or…”
In essence, there shall be compulsory conference where any of those situations existed. It defined defended suit to include amongst other things, proceedings in relation to the maintenance of a party to the proceedings or settlements. It is instructive to note that this Rule applies only to proceedings for ancillary relief (not being proceedings for maintenance pending the disposal of other proceedings) included in a suit to which Part 6 of Order XI of these Rules applies. In the struck out Answer and Cross-Petition of the Appellant, there is a relief for the maintenance of the Appellant included in the suit. It was not for maintenance pending disposal of the proceedings. She did not commence proceedings for an order with respect to maintenance, pending the disposal of proceedings of one of those parties or of a child of a marriage. So the relief was not an ancillary relief being proceedings for maintenance pending the disposal of the proceedings. In this situation, she can only apply for Certificate of Means by the leave of the Court. By Rule 41(3) of Order XI of the Matrimonial Causes Rules, a Court shall not set a defended suit down for trial upon request of a party unless-(a) the pleadings are complete. Order XI Rule 3 specifically dealt with the time when pleadings in a defended suit complete. It says:
“(3) A Court shall not set a defended suit down for trial upon the request of a party unless-
(a) the pleadings are complete;
(b) in the opinion of the Court, the allegations in the petition relating to the marriage are consistent with the particulars shown in the marriage certificate (if any) filed in pursuance of Order V Rule 27 of these Rules;
(c) the facts alleged in the petition would, if true, establish, in the opinion of the registrar, the domicile or residence, as the case may be of the petitioner in Nigeria, within the meaning of the Act, at the time of the institution of the suit; and
(d) in a case where the respondent has, in an answer, sought a decree of a kind referred to in paragraph (a) of the definition of “matrimonial cause” the facts alleged in the petition and answer would, if true, establish in the opinion of the registrar, the domicile or residence, as the case may be of the respondent in Nigeria within the meaning of the Act at the time of the institution of the proceedings for that decree.”
Then Order XI Rule 1(a) defined “defended suit” as (a)a suit for the purposes of which an answer has been duly filed; or (b) a suit that includes proceedings instituted by application to the Court under sub-rule (2) or (3) of Rule 1 of Order III of these Rules, if a party has duly filed an affidavit in reply to the affidavit filed in support of that application; “suit” means the proceedings instituted by a petition and includes any proceedings- (a) instituted by a supplementary petition filed in relation to that petition; (b) instituted by an answer or supplementary answer to that petition or to a supplementary petition so filed; or (c) ordered by the Court under Rule 38 of this Order of these Rules, or deemed by Order XIV Rule 3 or 25 of these Rules, to have been consolidated with any proceedings so instituted, but does not include proceedings for an order pending the disposal of other proceedings; “undefended suit” means a suit other than a defended suit.”
Order XI Rule 3 deals with time when pleadings in a defended suit are said to be complete. It provides:
(1) Subject to this rule, in a defended suit, the pleadings are complete for the purposes of this Order when the pleadings between the petitioner and respondent are complete.
(2) Where, in a defended suit, a person has been specified in a pleading as a person with or on whom the petitioner or the respondent is alleged to have committed adultery, rape or sodomy, the pleadings are not complete for the purposes of this Order unless the pleadings between the petitioner and the respondent (as the case may be) and the person so specified are complete.
(3) Where a petitioner in a defended suit has filed a supplementary petition, the pleadings are not complete for the purposes of this Order unless the pleadings in relation to the petition are complete and in addition not complete for the purposes of this Order is to the petition are complete and, in addition, the pleadings in relation to the supplementary petition are complete.
(4) For the purposes of this rule, the pleadings between two parties to suit are complete.
(a) if a pleading filed on behalf of one of those parties in reply to applauding filed on behalf of the other party does not contain any allegation of fact;
(b) if the time limited for the filing, on behalf of one of those parties, of a pleading in reply to a pleading filed on behalf of the other party has expired and the pleading in reply has not been filed; or
(c) if a Court has dispensed with service of a pleading, being the petition or answer in the proceedings, on one of those parties.
(5) For the purposes of sub-rule (4) of this rule a person on whom a petitioner or respondent is alleged to have committed rape or sodomy but who has not intervened in the suit shall be deemed to be a party to the suit.
By the above provisions, the suit before the lower Court was indeed a defended suit since an Answer and Cross-Petition had been duly filed, and the pleadings were complete on 21/6/2021 when the Appellant’s Answer and Cross-Petition and Reply to the 1st Cross-Respondent’s Answer to the Cross Petition were deemed as having been appropriately filed and served on that day. Rule 34 provides that Conference to be held before certain suits are set down for trial. It provides that:
(1) Subject to sub-rule (2) of this rule, a suit to which this Part applies shall not, except by leave of the Court, be set down for trial upon application made by a party to the suit, being the petitioner or respondent, unless-
(a) a conference for the purpose of this Part has been held; or
(b) that party attended, on the day and at the time and place fixed under this Part for the holding of such a conference, for the purpose of discussing, and making a bona fide endeavour to reach agreement on, any matters referred to in sub-rule (1) of rule 35 of this Order, but the petitioner or respondent, as the case may be, failed to attend or to take part in the conference.” What it means is that the suit shall not be set down for trial without the leave of the Court. Rule 40 then provides the period within which or the number of days that shall have elapsed for the request to set the suit down for trial to be made. Then by Rule 41(1) of the Matrimonial Causes Rules, the Court in which a defended suit is pending, may upon a party who has filed a pleading filing a request and a certificate that the suit is ready for trial, set the suit down for trial. Under Rule 41(3), a Court shall not set a defended suit down for trial upon request of a party unless: (a) the pleadings are complete. See also Rule 43.
I will now focus on Order X Rule 1(3) of the Matrimonial Causes Rules which this Court is entitled to take cognizance of by virtue of the Evidence Act. It deals with effect of failure to file pleading within due time. It provides:
“3. Where an answer to a petition is filed, with the consent of the petitioner or in pursuance of an order of the Court, after the proceedings instituted by the petition have been set down for trial, unless the Court orders otherwise –
(a) the setting down of the proceedings shall be void and of no effect; and
(b) the proceedings may be continued as though they had not been set down for trial.”
In the instant case, the Respondent made an application on the 26th February, 2021 for the suit to be set down for trial. Paragraph 4 of the Request says that the Petitioner and Respondent have agreed as follows: (i). Provision of suitable accommodation for the Respondent. (ii). N55M lump sum outright and final payment for insurance, furnishing and other incidentals. As rightly contended by the Appellant’s Counsel, when the lower Court made an order for accelerated hearing in the suit, no application whatsoever for the suit to be set down for trial had been made by the Petitioner. It is clear in the record that none of the parties applied for accelerated hearing in the proceedings. In Duwin Pharmaceutical and Chemical Co. Ltd vs. Beneks Pharmaceutical and Cosmetics Ltd & Ors (2008) 4 NWLR Part 1077 page 376, the Supreme Court on the instance when Court should make an order of accelerated hearing said thus:
“…it has often been advised that in appropriate cases a recourse to an order of accelerated hearing should be preferred to an interlocutory injunction so that the matters in controversy can be settled once and for all. This principle was restated in Onyesoh v. Nnebedun (supra) at 341 – where this Court, per Nnaemeka-Agu, J.S.C. said:- “The better view is, therefore, that whenever it is possible to accelerate the hearing instead of wading through massive affidavits and hearing lengthy arguments on interlocutory injunction, the Court should accelerate the hearing and decide finally on the rights of the parties.”
In the instant appeal, at the time the lower Court made the order for accelerated hearing there were no complexities in the proceedings because already, the lower Court had heard the application for interlocutory injunction.
The lower Court made the order suo motu after granting the injunctive orders sought by the Petitioner on 17/2/2021, and refusing the application for transfer of the case from Edo State High Court to the High Court of Lagos State. It has been held that for a Court to make an order which no party has asked for and on which the parties were not heard is a breach of the party’s constitutional right to fair hearing. None of the conditions mentioned in Order XI existed at the time.
Be that as it may, the Petitioner eventually applied for the suit to be set down for hearing. As pointed out by the Respondent’s Counsel, the Appellant had not filed her Answer and Cross-Petition as at the time the Respondent applied that the suit be set down for hearing on 26/2/2021. The Appellant’s pleading was filed on 3/3/2021 out of time and was regularised on 19/5/2021 by the Order of the lower Court. So, at the time the Respondent made his application, the suit was strictly undefended.
Be that as it may, Order X Rule 1(3) had unambiguously stated that where an answer to a petition is filed out of time in pursuance of an order of the Court, after the proceedings instituted by the petition had been set down for trial, unless the Court orders otherwise, the setting down of the proceedings shall be void and of no effect and the proceedings may be continued as though they had not been set down for trial. This provision automatically nullified the setting of the suit down for trial upon the application made by the Respondent on 26/2/2021 when the Appellant had not filed her Answer and Cross-Petition. Appellant’s Counsel was therefore right in her argument that the pleadings were complete on 19/5/2021 and it was after that, the suit shall be set down for trial, the condition precedent to the hearing of the suit was not fulfilled. In this respect, I resolve issue 2 against the Respondent.
Now dealing with issue 3, which is whether the Court below violated the Appellant’s fundamental right to fair hearing under Section 36(1) of the Constitution of the Federal Republic of Nigeria, I would recapitulate my earlier opinion while dealing with the Respondent’s preliminary objection that the Appellant bitterly complained about the lower Court’s foreclosure of her right to cross-examine the Respondent and worse still foreclosure of her right to present her defence in the matrimonial proceedings.
There were serious allegations of breaches of principles of fair hearing which were paramount in the complaints of the Appellant. In Offor vs Kanu (2016) LPELR-40462(CA) this Court expressed that “Fair hearing connotes trial conducted according to all legal rules formulated to ensure that justice is done to parties and not whether the decision was correct. It is a trial which even reasonable and fair minded observer who watches the proceedings should be able to conclude that the Court has been fair to all concerned. See: VICTINO FIXED ODDS LTD. VS. JOSEPH OJO & ORS. (2010) 4 SCM 127at 135 G – I to 136 A – G. per FABIYI JSC who said: Let me say it right away that the right to fair hearing is a cardinal principle that is provided in Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria. It provides as follows:- “36(1) In the determination of his civil rights and obligations 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.” It is certain that fair hearing by a Court or other judicial Tribunal under Section 36(1) of the 1999 Constitution – the grundnorm, incorporates the audi alter am partem rule. It is that a man can never have a verdict entered against him on a matter relating to his civil rights or obligation before such a Court or Tribunal without being given an opportunity of being heard. The rule is one of the essential cornerstones of our judicial process. See: Amadi v. Thomas Aplin Co. Ltd. (1972) 4 SC 228: Kano N. v. Obiora (1959) SCNLR 577…It should be further stated that on a breach of the right of fair hearing, an Appellate Court does not go to the reasons for its breach or the consequences of same. It has no alternative but to allow the appeal against the decision and treat it as though there has been no hearing at all. An Appellate Court is bound to follow this course in the hearing of the appeal. See: Adigun & Ors. v. A. G. of Oyo State & Ors. (1987) 2 NWLR (Pt. 56) 197. A denial of the right to be heard is a breach of constitutional right, natural justice and Rules of Court. Such cannot and ought not be condoned in any respect. See: Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587. It is a basic and fundamental principle of the administration of justice that no decision can be regarded as a valid unless the trial Judge or Court has heard both sides in the conflict. See: Deduwa v. Okorodudu (1976) 9 – 10 S.C. 329.”
It is trite law that once right to fair hearing is violated, it is irrelevant whether a decision made subsequent thereto is correct. See Victino Fixed Odds Ltd vs. Ojo & Ors (2010) 8 NWLR Part 1197 page 486 wherein Tukur vs. Government of Gongola State (1989) SCNJ 1 was referred to. The Supreme Court, per Fabiyi, JSC., went further to state that on a breach of the right of fair hearing, an Appellate Court does not go to the reasons for its breach or the consequences of same. It has no alternative but to allow the appeal against the decision and treat it as though there has been no hearing at all. An Appellate Court is bound to follow this course in the hearing of the appeal. A denial of the right to be heard is a breach of constitutional right, natural justice and Rules of Court. Such cannot and ought not be condoned in any respect. See Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587. It is a basic and fundamental principle of the administration of justice that no decision can be regarded as a valid unless the trial Judge or Court has heard both sides in the conflict. See: Deduwa v. Okorodudu (1976) 9 – 10 S.C. 329.”
Also in Deduwa & Ors vs. Okorodudu & Ors (1976) LPELR-936(SC), the Supreme Court, per Alexander, JSC., articulated that it is immaterial whether or not a Court has heard one party or both parties to a suit, or whether or not one party or the other has wilfully absented himself from the hearing or failed to give evidence, and that once a trial has commenced after the issue has been joined on the pleadings, there is a hearing to which the test of fairness under Section 22(1) of the Constitution may be applied, within the context of the proceedings between the parties as a whole. If, of course, there is no hearing of one party’s side of the case, especially if it is through no fault of his own, this may also amount to no ‘fair hearing’ of his side of the case and he will not have had a ‘fair hearing’ in the determination of his civil rights and obligations to which he is entitled under Section 22(1) of the Constitution. If it may be fairly inferred by reasonable persons sitting in Court, from the circumstances, that there is a real likelihood of bias, against one of the parties, on the part of the trial Court, it must follow irresistibly that that party’s right to a fair hearing has been contravened and that any decision on the issue between the parties by the trial Court in such circumstances cannot stand.”
Counsel for the Appellant referenced the opinion of Eso, JSC., in Prince Yahaya Adigun & 2 Ors vs. The Attorney General of Oyo State (1987) 1 NWLR (Pt. 53) 678 at 721 that if the principles of natural justice are violated in respect of any decision, it is, indeed, immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.
In the instant appeal, the Appellant alleged that the lower Court refused to afford her time to prepare for trial and commenced trial on the same day that pleadings closed. She itemized the circumstances thus:
ii. The Court below discountenanced the pendency of the Appellant’s application for a certificate of means and proceeded with trial in the suit;
iii. The Court below refused the Appellant’s application for an adjournment and then foreclosed the Appellant’s right to cross-examine the Respondent;
iv. On the day originally fixed for defence and subsequently for ruling, the Court below refused the Appellant’s application for an adjournment and foreclosed the Appellant’s right to defend the case.
v. The Court below allowed the Respondent to orally deliver a final address on the day originally fixed for defence, and subsequently for ruling, and adjourned the matter to the next day for judgment;
vi. The Court below disregarded the Appellant’s motion for stay of proceedings pending before this Honourable Court and delivered judgment in the suit;
vii. The Court below proceeded to deliver judgment in the suit despite the pendency of the Appellant’s application for a certificate of means.
The record of appeal shows that after conducting hearing in the proceeding which commenced on the 21st June, 2021, the lower Court delivered its judgment on the 16th July, 2021, barely three weeks and four days after. Both the hearing and judgment did not last up to 30 days, just 24 days. It is evident on record particularly at page 400F of the record that on 21/6/2021, the Appellant as the Respondent/Cross-Petitioner was granted an extension of time by the lower Court to file her Reply to Answer to the 1st Cross-Respondent’s Answer to Cross-Petition dated 28/5/2021. Time was also extended for her to file her witness statement on oath in support of the Reply and the two processes were deemed as properly filed and served on that date. On that same 21/6/2021, the Appellant was granted leave to make an application for the issuance of certificate of means for the 1st Cross-Respondent. The Appellant’s Counsel’s request to file an application to show means was refused. It is therefore, imperative to note that it was the same day that pleadings were completed and fully exchanged that the lower Court invited the Petitioner to open his case. After that, the Respondent’s Counsel applied for an adjournment to enable him assemble the materials he needed for the cross-examination of the Petitioner himself.
Naturally and circumspectly, the Respondent who completed her pleading on that day ought to have been given some opportunity to prepare her case but that was not to be as there was a seeming unguarded rush to unleash judicial terror on her. The application by the Appellant’s Counsel for adjournment was refused by the trial Judge who then foreclosed the right of the Appellant to cross-examine the Petitioner/Cross-Respondent. The trial Judge immediately adjourned the matrimonial causes proceeding to 5/7/2021 for defence. There was no indication as to what transpired on 5/7/2021. However the record of appeal shows that the proceeding came up on 6/7/2021 and on that 6/7/2021, the Petitioner’s Counsel was present before the Court, but the Respondent’s Counsel was absent and he wrote a letter for an adjournment. The case was then adjourned to 15/7/2021 for defence, just about nine days interval. On 15/7/2021, respective Counsel for the parties appeared before the lower Court. The Respondent’s Counsel informed the Court that he was served with a counter-affidavit to the Motion for stay of proceedings on Friday last week. He informed the Court that he had attempted to file a further affidavit but jammed a brick wall because of the new filing system at the Registry of the lower Court. Upon the Petitioner’s learned Senior Counsel’s indication that he would not oppose oral reply, the Respondent’s Counsel then moved his application. The Order was granted by the lower Court. The lower Court further permitted Counsel for the Respondent to move the Respondent’s application for stay of proceedings pending the hearing and determination of the appeal filed by the Appellant against the ruling of the lower Court delivered on 21/6/2021. After hearing submissions of respective Counsel, the lower Court adjourned the ruling in the matter to 3pm on that same 15/7/2021. At 3.00pm when the matter was called up, the lower Court dismissed the application and immediately called upon the Respondent to open her defence. The Respondent’s Counsel holding brief for the Respondent’s principal Counsel applied for a short adjournment on the ground that the Respondent’s Counsel’s father died, he was bereaved and needed a short date to continue with the case. The lower Court then ruled that the Respondent’s Counsel who was said to have been bereaved of his father, was not interested in defending the case. I could not fathom how the lower Court could have imagined that Counsel was playing prank on the Court with the death of his father. It refused the application for an adjournment and again foreclosed the Respondent’s right to participate in the hearing of the Petition, this time, it was her own right to present her defence in the matrimonial proceeding. Immediately, the lower Court granted the Petitioner’s Counsel’s application to address the lower Court. The Petitioner’s Counsel addressed the Court shortly and urged that judgment be entered in favour of the Petitioner as there was no defence. The lower Court after denying the Respondent her right to present her case, in a seeming automated and inexplicable way, adjourned the proceeding to the following day, 16/7/2021 for judgment. It is on record that the lower Court in the most unconscionable way, denied the Appellant all the opportunities available to her to participate in the hearing of the proceedings.
There is no doubt that the trial Court has the discretion whether to grant or refuse an adjournment. The only limitation to the exercise of such discretion is that, it must be judiciously and judicially exercised, and, as an umpire, the Court should not allow its decision to be beclouded or shrouded in sentiments”, per Orji-Abadua, JCA., in Guaranty Trust Bank Plc vs. Fadco Industries Nigeria Ltd (2013) LPELR-21411(CA). Also, in Salu vs. Egeibon (1994) LPELR-2997(SC) on whether the grant or refusal of an application for adjournment is at the discretion of Court and how such discretion should be exercised, the Supreme Court said: “The grant or refusal of an application for an adjournment involves an exercise of judicial discretion and being a judicial discretion, it should not be exercised arbitrarily, and should be seen to have been exercised judicially and judiciously. See Udo v. The State (1988) 3 NWLR (Pt. 82) 316 and Tasaku v. The State, (1986) 1 NWLR (Pt.17) 516. A discretion which was said to have been exercised in refusing the application for an adjournment resulting in denial of fair hearing and/or fair trial to the respondent could not reasonably be said to have been exercised judicially or judiciously.”
I must say that this is a typical case of slaughtering justice on the altar of speed. No unbiased adjudicator would condone such injustice and unwarranted denial of right to fair hearing. The Appellant ought to have been heard. Her rights to cross-examine the Petitioner and open her Defence were unjustifiably foreclosed by the lower Court. Even if as argued by the Respondent’s Counsel that the Appellant, was at the conclusion of the case, indirectly awarded the reliefs she sought for in her struck out Cross-Petition, the law is that justice must not only be done but must be seen to have been done. Justice was not served in her case by the utter denial of her right to fair hearing by the lower Court. She was denied the opportunity to lead evidence to prove her claims in the Answer and Cross-Petition, an opportunity the lower Court seized upon to strike out the Appellant’s Answer and Cross-Petition claiming that she had no defence to the suit. I am, therefore, inclined to accept the Appellant’s argument in this regard and hereby resolve this issue in favour of the Appellant.
Issues 4 and 5 are to be considered together. They are: “Whether the Court below ought to have granted a decree nisi for the dissolution of the marriage between the Appellant and the Respondent when the Respondent failed to satisfy the conditions listed under Section 15(2)(c) of the Matrimonial Causes Act for demonstrating that the marriage had broken down irretrievably? And Whether the Court below was right to have held that the Respondent had proved that the marriage had broken down irretrievably in the absence of credible evidence to that effect?.”
In determining these issues, this Court takes into consideration the Written Statement on Oath of the Respondent particularly paragraphs 5, 6, 7, 16, 17, 18, 19, 20, 22, 23 and 24 shown at pages 253-256 of the record of appeal. The said Written Statement on Oath was adopted by the Respondent during his testimony on 21/6/2021. The Petition filed by the Respondent was predicated on the ground that the marriage has broken down irretrievably on the facts that: (a) Since the marriage, the Respondent has behaved in such a way that the Petitioner cannot be reasonably expected to live with her.(b). That the Respondent has been in constructive desertion of the marriage for more than one year, indeed for about 10 years now, and has denied conjugal rights to the Petitioner for that period. (c). That the Respondent has ever since the aforesaid period of about 10 years completely abandoned all matrimonial responsibilities of a wife. It is obvious in the Petition filed by the Respondent and his Witness Statement on Oath that the ground that the marriage between the parties had broken down irretrievably was pivoted on the facts of wilful and persistent refusal on the part of the Appellant to restore conjugal rights in the marriage, unreasonable behaviour, constructive desertion for about ten years and abandonment of matrimonial responsibilities. It is the law that the Petitioner had the onus of proffering evidence to prove the same before the lower Court.
It should be noted that the test whether the Petitioner can or cannot be expected to live with the Respondent is objective, therefore, it is not sufficient that the Petitioner alleges that he cannot live with the Respondent because of her behaviour; the behaviour must be such that a reasonable man cannot endure.
I may perhaps mention that a wife has obtained a decree against a husband who has treated her with violence, who persisted in a course of conduct designed to drive her from the matrimonial home, whose domineering manner led him to belittle her and level of abuse and unwarranted criticism at her. What this means is that behaviour could also consists of threats, insults, nagging, persistent dishonesty causing embarrassment, etc. Also, Courts are granting relief in circumstances where they would be prepared to say that the Respondent’s conduct would support a charge of constructive desertion. See the cases of Ash vs. Ash (1972) 1 ALL ER 582, Stevens vs. Stevens (1979) 1 WLR 885 and Livingstone-Stallard vs. Livingstone Stallard (1974) 2 ALL E.R. 766 at 771.
Cruelty is therefore said to be regarded as a conduct which is grave and weighty as to render the continuance of matrimonial cohabitation virtually impossible coupled with injury or reasonable apprehension of injury (physical or mental) to health. See Damulak vs. Damulak (supra).
In the instant case, the Respondent in support of the averments in his Petition gave evidence in chief via the aforementioned paragraphs of his Witness Statement on Oath showing marital violence which was persistent in nature, constructive desertion and denial of conjugal right for over ten years. The evidence of the Respondent was appraised by the lower Court at pages 409-412 of the record of appeal and it then opined that the Petitioner has proved the requirement of Section 15(2)(c) of the Matrimonial Causes Act, for the Court to hold that the marriage between the parties has broken down irretrievably. It seemed obvious in the record of appeal before this Court that the lower Court after shutting the Appellant out of the hearing of the Petition itself by foreclosure of her right to cross-examine the Respondent who was the Petitioner at the lower Court, foreclosure of her right to present her defence in the matrimonial causes proceeding and eventual obliteration of the Appellant’s Answer and Cross-Petition by striking the same off the suit, must have somewhat heaved a sigh of relief and quickly concluded that the evidence led by the Petitioner in chief remains unchallenged which the Court is at liberty to accept and act upon on trite principle of law.
In the case of Adebayo v. Attorney General of Ogun State (2008) 7 NWLR (pt 1085) 201 at 205 to 206, Niki Tobi, JSC., had the following to say: “…The fair hearing provision in the Constitution is the machinery or locomotive of Justice, not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case.”
On Whether failure of Court to allow a party defend an action amounts to breach of right to fair hearing, I would have recourse to the decision of this Court in Ishaku & Anor vs. Kantiok & Ors (2011) LPELR-8944(CA) or (2012) 7 NWLR Part 1300 457, per Orji-Abadua, JCA., where it held inter alia that: “a party’s civil right and obligation can only be lawfully determined if he is given the opportunity to state his own side of the case, and it has been continually expressed that the exercise of the Court’s discretion must not limit a party’s constitutional right. The record of this appeal showed that the Appellants were only a day late in filing their Reply, and to regularize that, the Appellants immediately, filed a Motion on Notice for extension of time with a prayer to deem the Reply already filed as properly filed and served, yet, the trial Tribunal, which seemed actuated by forces beyond legal reasoning, refused to grant the application, and then proceeded with the hearing of the Petition despite the lodgement of an appeal against the said decision by the Appellants and a Motion for stay of proceedings filed by them. The trial Tribunal also refused to grant the Motion on Notice for stay of proceedings in the said Petition without giving the Appellant an inch opening to file their defence or Reply to the Petition. It is instructive to note that there is no provision in the Practice Directions which forbade enlargement of time to a defaulting Respondent to file his Reply. Honestly, one could not fathom the mad rush in shutting out the defence of the Appellants and preventing them from filing their Reply. This is absolutely deplorable because justice will not only be done but must be seen to have been. I am afraid to state that a serious miscarriage of justice appeared to have been occasioned to the Appellants by the unguarded and untoward approach and overzealousness of the trial Tribunal which was more interested in upholding and speeding up trials than administering and balancing the course of justice. The trial Tribunal had no legal justification whatsoever to have trammeled the Appellants’ right to fair hearing, more so, when there was no undue or unreasonable delay on their part to file their Reply. They equally, demonstrated their eagerness to participate at the Tribunal by filing an appeal against the Tribunal’s decision and a further Motion for stay of proceedings. If trial Tribunal was truly serving the interest of justice, it ought to have given a hoot to the yearnings of the Appellants to be allowed to present their own side of the case. It is well established that a Court or Tribunal should not be seen to have barred a party from conducting his case as he wants or filing his defence in the case. It is trite law that where a party’s right to fair hearing is breached, the entire proceedings are a nullity and it will be irrelevant that the decision arrived at by the Court or Tribunal is correct or not. In Usani vs. Duke (2004) 7 NWLR Part 871 p. 116, it was stated that ordinarily the Court does not readily grant an order staying proceedings because of the determined effort of the Court to determine all matters expeditiously, but, when a matter raises special or peculiar problems or circumstances, stay of proceedings may be granted, and that whilst delay of justice is regarded as a denial of justice, hasty justice is equally harmful. It is on this basis that, no matter how sound and brilliant the decision of the trial Tribunal might have been, it smacks of injustice, and it should never be allowed to stand. Accordingly, this issue is resolved in favour of the Appellants.”
See also the case of Agbahomovo vs. Eduyegbe (1999) LPELR-224(SC) where the Supreme Court held that “… The right to a fair hearing does not stop with the parties being present in Court. It is a right to be heard at every material stage of the proceedings. Thus, in Ekuma v. Silver Eagle Shipping Agencies Ltd. (1987) 4 NWLR (Pt.65) 472 at 486 Nnameka-Agu, J.C.A. (as he then was) expressed it as follows: “The rule of audi alteram partem postulates that the Court or other Tribunal must hear both sides at every material stage of the proceedings before handing down a decision on that stage. It is a rule of fairness. A Court cannot be fair unless it considers both sides of the case as may be presented by both sides.” See also Section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979 and the case of Nwokoro v. Onuma (1990) 3 NWLR (Pt.136) 22 at page 33 where this Court held, inter alia 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 and presented by them.”
See also Ogundoyin Vs Adeyemi 2001 LPELR-2335(SC) in which it was held that: “The grouse in this issue is centered 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 alterem 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 (Pt.164) 550 at 578 Nnaemeka-Agu, J.S.C. stated the law succinctly thus: “The very essence of fair hearing under Section 33 of the Constitution of 1979 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 ambidexterous standard of justice in which the Court must be fair to both sides to the conflict.” See Oyeyemi v. Commissioner for Local Government Kwara State (1992) 2 NWLR (Pt.226) 661. The hearing must be fair and in accordance with the twin pillars of justice, namely audi alteram partem and nemo judex in causasua See Mohammed & Anor v. Olawunmi (1990) 2 NWLR (Pt. 133) 458 at 485 B-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.”
As argued by the Appellant’s Counsel, the Appellant was prevented and precluded from controverting and challenging the Respondent’s evidence not that the Appellant impertinently and deliberately refused to present her evidence or her case. She was starkly stopped by the lower Court. I would further rely on the decision of this Court in Ishaku vs. Kantiok (supra) where it was said that “… the case of Ogundipe vs. Akinloye (2002) 10 NWLR Part 775 p. 312 is quite pungent hereat, where Akintan, J.C.A. (as he then was) held that the law is settled that where, owing to a pending relevant appeal, the hearing of a case could work injustice or constitute futile exercise in futility, prudence, if not common sense, dictates that the proper course of action open to the Court would be to stay or adjourn the case pending the determination of such an appeal with liberty to either side to apply for the hearing of the case to be resumed: See Shekoni vs. Ojoko (1954) 14 WACA 504; and Nalsa& Team Associates vs. N.N.P.C. (1996) 3 NWLR Part 439 p. 621 at 632. It was held therein that the learned trial Judge, failed to follow the above well established practice by not adjourning the claim before him until the appeal in the Supreme Court in the matter is determined. It must be emphasised that an Election Tribunal has a duty to do even-handed justice between the parties shorn of all unnecessary technicalities. The Tribunal should have aimed at doing substantial justice to unearth the truth of the matter. This should have, indeed, impelled the granting of a long adjournment to give time for the appeal to be heard. Further in the case of Nigeria Arab Bank Ltd. vs. Comex Limited (1999) 6 NWLR Part 608 p. 648, it was held thus: “It is a highly esteemed principle of law and enshrined in our Constitution that in the administration of justice parties to a legal duel must each be accorded every opportunity of canvassing his case to the best of his ability within the rules regulating the procedure to achieve the end of justice. Fairness of a trial is demonstrated by the attitudinal behaviour of the presiding Judge in the course of trial towards a party. It is characterized by lack of prejudice or bias and open ended in such a way that any common man present in Court will easily attest to the fairness of the procedures. In Otapo vs. Sunmonu (1987) 2 NWLR Part 58 p. 587 at 605, Obaseki, J.S.C. said: “A hearing can only be fair when all parties to the dispute are given a hearing or an opportunity of 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, therefore, the represented parties were not heard or given an opportunity of being heard in the appeal, the hearing by the Court of Appeal cannot come within the category of fair hearing. Without fair hearing, the principles of natural justice are abandoned; and without the guiding principles of natural justice the concept of the rule of law cannot be established and grow in the society”. It is said that if strict observance of a rule of practice will produce injustice then a Court of justice should tow the line of handing down justice than slaughtering it on the altar of technicalities, i.e., obeying the rule which is no longer an aid to administration of justice. The Court should ensure that justice is done and that rule of law prevails in all cases.”. (Underlining mine)
Accordingly, issues 4 and 5 are resolved in favour of the Appellant.
In the end and for all the reasons I have given above, this Court finds merit in this appeal. The same will be and is hereby allowed. Consequently, the judgment of the High Court of Edo State delivered on 16/7/2021 in suit No. B/747/2020 is hereby set aside. The Petition is hereby remitted to the Chief Judge of Edo State for reassignment to another Judge for trial de novo. I make no order as to costs.
UCHECHUKWU ONYEMENAM, J.C.A.: I read before now, the draft of the judgment just delivered by my learned brother THERESA NGOLIKA ORJI-ABADUA, P.J.C.A. My lord has succinctly considered the issues in this appeal and has perfectly resolved them against the Respondent and in favour of the Appellant.
I agree with the reasons for allowing the appeal; I too allow the same and set aside the judgment of the High Court of Edo State delivered on 16th July, 2021 by V. O. Eboreime, J. in Suit No. B/747/2020.
I abide by the order as to costs.
ADEMOLA SAMUEL BOLA, J.C.A.: I have read through the draft of the judgment delivered by my brother NGOLIKA ORJI-ABADUA, PJCA. I am in agreement with his reasoning and conclusion which are lucid and convincing.
I adopt the conclusion reached therein and the orders made.
I abide by them.
Appearances:
Oyinkansola Badejo-Okusanya, (Mrs.), with him, Orji D. Uka, Esq. For Appellant(s)
G. C. Igbokwe, S.A.N. with him, M. E. Okojie, Esq. A. N. Uzor, Esq. J. A. Emenkhiem, Esq. and S. C. Eti, Esq. For Respondent(s)
