MR. EDWARD DALOBA V. ESTHER S. RIPIYE & ORS.
(2010)LCN/4197(CA)
In The Court of Appeal of Nigeria
On Thursday, the 20th day of May, 2010
CA/J/45/2006
RATIO
DECLARATION OF TITLE TO LAND: WHETHER A PLAINTIFF WHO SEEKS A DECLARATION OF TITLE TO LAND HAS A DUTY TO SHOW CLEARLY THE AREA OF LAND TO WHICH HIS CLAIM RELATES
It has been established that a plaintiff who seeks a declaration of title to land, has a duty to show clearly the area of land to which his claim relates, its exact boundaries and its extent as no court would be obliged to grant a declaration to an unidentified land. A Plaintiff in an action for declaration of title can get title, but he is duty bound to show to the Court the area of land to which his claim relates. Before a declaration of title is granted there must be credible evidence describing and identifying the land with certainty. Ogedengbe vs. Balogun (2007) 9 NWLR Pt. 1039 Pg 380, Adelusola v. Akinde (2004) 12 NWLR Pt. 887 Pg 295, Okochi v. Anumkwoi (2003) 18 NWLR Pt. 851 Pg 1, Ogundalu vs. Macjob (2006) 7 NWLR Pt. 978 Pg 148. PER UZO NDUKWE-ANYANWU, J.C.A.
PROOF OF TITLE TO LAND: DUTY PLACED ON A PLAINTIFF WHO SEEKS DECLARATION OF TITLE TO LAND PROVE
A plaintiff who seeks declaration of title to land must prove his root of title to the land. Where he traces his title to a particular person, he must further prove how that person got his own title or came to have the title vested in him, including, where necessary, the family that originally owned the land. Archibong vs. Edak (2006) 7 NWLR Pt. 980 Pg 485, Dike vs. Okoloedo (1999) 10 NWLR Pt. 623 Pg 359, Otanma vs. Youdubagha (2006) 2 NWLR Pt. 964 Pg 337. PER UZO NDUKWE-ANYANWU, J.C.A.
SURVEY PLAN: WHETHER A SURVEY PLAN IS A SINE QUA NON IN A CLAIM FOR DECLARATION OF TITLE TO LAND
A survey plan is not a sine qua non in a claim for declaration of title to land. All that is required is a clear description to make a disputed land ascertainable. See Ogedengbe vs. Balogun supra, Emiri vs. Imieyeh (1999)4 NWLR Pt. 599 Pg 442. PER UZO NDUKWE-ANYANWU, J.C.A.
CUSTOMARY LAW: WHETHER THE PURCHASER OF LAND MUST BE LET INTO POSSESSION IN RESPECT OF SALE OF LAND UNDER THE CUSTOMARY LAND
It is also a prerequisite of Customary Law that the purchaser of land be let into possession. These requirements of Customary Law Sale were satisfied by the Respondents in Ojelade vs. Soroye (1998) 5 NWLR Pt. 549 Pg 284. PER UZO NDUKWE-ANYANWU, J.C.A.
DAMAGES FOR TRESPASS AND INJUNCTION: WHETHER IN A CLAIM FOR DAMAGES FOR TRESPASS AND AN INJUNCTION TO RESTRAIN FURTHER TRESPASS ONCE THERE IS A FINDING OF TRESPASS, THE CLAIMS FOR DAMAGES AND INJUNCTION MUST BE AWARDED BY THE COURT
In a claim for damages for trespass and an injunction to restrain further trespass once there is a finding of trespass, the claims for damages and injunction must be awarded by the Court. Ogunyombo vs. Ookoya (2002) 16 NWLR Pt. 793 Pg. 224. PER UZO NDUKWE-ANYANWU, J.C.A.
Before Their Lordships
BODE RHODES-VIVOURJustice of The Court of Appeal of Nigeria
UZO NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria
ABUBAKAR DATTI YAHAYAJustice of The Court of Appeal of Nigeria
Between
MR. EDWARD DALOBAAppellant(s)
AND
1. ESTHER S. RIPIYE
2. FATIMA A. SANI
3. DIYASE MAISALATURespondent(s)
UZO NDUKWE-ANYANWU, J.C.A. (Delivering the Leading Judgment): The Appellant as Defendant was sued by the Respondents as Plaintiff. The Plaintiff/Appellant claimed as follows:
(a) A declaration that the Defendant is a trespasser.
(b) A declaration that the 1st Plaintiff is entitled to statutory right of occupancy over the land in dispute.
(c) An order of perpetual injunction restraining the Defendant, his agents, privies, heirs, legal and personal representative from further acts of trespass on the land in dispute.
(d) N251,000.00 special damage being the cost of materials and work done on land that were destroyed by the Defendant.
PARTICULARS OF SPECIAL DAMAGES
1. 600 pieces of 9 inches block
at N45,000.00 per one (sic) N27,000.00
2. 3000 pieces of 6 inches
block at N40, 000 Per one (sic) N120,000.00
3. Transportation of the blocks at N18, 000.00
4. 10 trips of sand at N1200 per trip N12, 000.00
5. 3 trips of stones at N5, 000.00
Per trip N15, 000.00
6. Digging of the foundation N10, 000.00
7. Casting of the concrete N10, 000.00
8. 5 set of pegs at N500.00 per set N2, 500.00
9. 10 drums of water at N150.00 – N1, 500.00
10. Engineers labour N20,000.00
11. Wood Battens – N1,000.00
12. Transport to and from the site N1,000.00
TOTAL = N251,000.00
(e) N500,000.00 general damages for trespass.
(f) Cost of filing and prosecuting this case.
DATED THIS 30TH DAY OF APRIL, 2003.
In proof of their case, the Plaintiffs/Respondents called 5 Prosecution Witnesses and tendered 3 Exhibits.
The Defendant/Appellant called 3 Defence Witnesses and tendered no Exhibit in his defence.
The Defendant/Appellant did not address the Court at the close of the Defendant’s case as such, the Plaintiff did not reply.
The trial Court therefore delivered its considered judgment on 31st January, 2005.
Being dissatisfied with the judgment, the Defendant/Appellant filed his notice and 8 grounds of appeal.
The Appellant’s brief was settled by M.I. Tyonongo Esq. on 13th March, 2006 within time.
The Appellant articulated 6 issues for determination as follows:
(1) Having regard to the pleadings and the oral evidence produced at the trial, can it be said with certainty that the Respondents did proved the identity and extent of the land’ in dispute to support the decision arrived at by the trial Court in favour of the Respondent (Ground 1).
(2) Did the 1st Respondent prove her root of title to the land in dispute in accordance with the law to support the decision of the trial Court in her favour (Ground 2).
(3) In the absence of evidence of the 1st Respondent’s workmen on the land coupled with the failure of the learned trial Judge to visit the locus in quo, can it be rightly said that the purported acts of harassment and trespass alleged against the Appellant by the 1st Respondent proved to support the judgment of the trial Court on the issue of trespass and harassment, having regard to the provision of Section 138(1) of the Evidence Act (Grounds 4, 5).
(4) Whether the award of two hundred thousand (N200, 000.00) general damages for trespass and ten thousand (N10,000.00) naira costs against the Appellant was not excessive having regard to the circumstances of the case and the factors relied upon by the Court in making the awards (Grounds 6, 7).
(5) Having regard to the several adverse comments made by the learned trial Judge against and concerning the Appellant as a person, his case and his witnesses in the entire trial, could the Judge no be said to have been influenced by bias against the Appellant in arriving at the decision in the matter before him (Ground 8).
(6) Is the learned trial Judge right in law to have held that Dauda was not called to testify for the Appellant and no agreement was tendered by the Appellant linking the said transaction with the disputed land when it was the trial Judge that ordered the closure of the Appellant’s case pre-maturely (Ground 3).
The Respondents in turn filed their Respondents’ brief settled by Y.N. Akirikwen Esq. on 5th May, 2006 after service on 12th April, 2006. The Respondents adopted the Appellant’s issues 1 – 4 but however merged the Appellant’s issues 5 and 6 as his issue 5.
ISSUE ONE
Having regard to the pleadings and the oral evidence produced at the trial, can it be said with certainty that the Respondents did prove the identity and extent of the land in dispute to support the decision arrived at by the trial Court in favour of the Respondent (Ground 1).
The Appellant’s counsel in his arguments submitted that having regard to the pleadings and the oral evidence elicited during trial that it cannot be said that the Respondents proved the identity of the land in dispute. The Appellant’s counsel referred the Court to paragraphs 4 and 5 of the Plaintiff’s claim which reads as follows:
4. The land in dispute the subject matter of this case is a piece of land measuring 41m x 21m (861 sq metres) lying and situate at mile six within the jurisdiction of this Court.
5. The Plaintiffs avers that the land in dispute is described as a piece of land lying and situated at mile six bordering between old Yola road to the north, the land of Hon. Simon Dogari to the east, the land of one retired soldier by name Philip to the west and one old man to the south.
Learned counsel argued that none of the 5 Prosecution Witnesses called, testified as to the facts as pleaded in paragraphs 4 and 5 in the Plaintiffs Statement of Claim. All their descriptions of the land in issue was vague and did not state the area of the land in dispute. In furtherance to his argument learned counsel to the Appellant stated that:
“The boundaries of the land in dispute must be ascertained with a degree of precision and certainty. Adetutu Adesanya vs. Alh. S.D Aderonmu & 7 Ors (2000) 6 SCNJ 242, Tyongbundi Akulaku & Ors vs. Ikyume Yongo (2002) 2 SCNJ 246.”
Counsel urged the Court to hold that the Respondents did not prove the exact boundaries of the land in dispute. The Respondents’ counsel argued that the Respondents pleaded and proved the description and extent of the land in dispute with sufficient certainty. Counsel stated that the Appellant admitted the portions of the pleadings of the Respondents wherein the land in dispute was properly described. The Appellant also counterclaimed on the same disputed land. Thus it became clear that there was no issue as to the identity of the piece of land in issue.
Furthermore, a question of the identity of the land in issue can only arise if the Defendant raises it in his statement of defence or in his testimony. See Ekwealor vs. Obasi (1990) 2 NWLR Pt. 131 Pg 231 at 237, Ogun vs. Akinyelu (2004) 18 NWLR Pt. 905 Pg 362.
Learned counsel submitted that the Appellant in the Statement of Defence admitted paragraphs 4 and 5 of the Plaintiffs’ Statement of Claim and therefore need no further proof. See Ibadan Local Government Parties Company Ltd vs. Okumode (2005) 3 NWLR Pt. 911 Pg 45.
Counsel urged the Court to dismiss this appeal and hold that the Respondent proved the identity of the land in dispute.
It has been established that a plaintiff who seeks a declaration of title to land, has a duty to show clearly the area of land to which his claim relates, its exact boundaries and its extent as no court would be obliged to grant a declaration to an unidentified land. A Plaintiff in an action for declaration of title can get title, but he is duty bound to show to the Court the area of land to which his claim relates. Before a declaration of title is granted there must be credible evidence describing and identifying the land with certainty. Ogedengbe vs. Balogun (2007) 9 NWLR Pt. 1039 Pg 380, Adelusola v. Akinde (2004) 12 NWLR Pt. 887 Pg 295, Okochi v. Anumkwoi (2003) 18 NWLR Pt. 851 Pg 1, Ogundalu vs. Macjob (2006) 7 NWLR Pt. 978 Pg 148.
In the instant case, the Plaintiffs/Respondents pleaded, the description of the land in dispute in paragraphs 4 and 5 of his Statement of Claim. In it, the Plaintiffs/Respondents gave the exact measurement of the piece of land as measuring 41m x 21m (861sq metres) lying and situate at mile six. One of the prerequisites of proving title to land is that the party claiming title must ascertain the size of the parcel of land he is claiming; that is its size and the boundaries, where he fails to do so his claims will fail. Faagunwa vs. Adibi (2004) 17 NWLR Pt 903 Pg. 544.
The plaintiffs/Respondents also went on to further describe the land as lying and situated at mile six bordering between old Yola Road to the north, the land of Han. Simon Dogari to the east, the land of one retired Soldier by name Philip to the west and one old man to the south. This description has put in place all the neighbours on the four sides into perspective. A survey plan is not a sine qua non in a claim for declaration of title to land. All that is required is a clear description to make a disputed land ascertainable. See Ogedengbe vs. Balogun supra, Emiri vs. Imieyeh (1999)4 NWLR Pt. 599 Pg 442.
The Defendant/Appellant admitted the location of the disputed land in his general traverse. The Appellant never disputed the area of the land in dispute nor, the persons bordering it. Also the Appellant did not traverse in details, the issue of the location of the disputed land, instead in his counterclaim claimed for a declaration of title to the same disputed land. This therefore means that the Appellant never challenged the identity of the disputed land rather he claimed it in his counterclaim. This means that the identity of the disputed land is known to both parties. Therefore it needs no further proof.
The Defendant/Appellant did not join issues with the Plaintiff/Respondent on the identity of the disputed land. It is obvious that the identity of the land was known to both parties. The issue of proof of it does not arise as the Court cannot possibly reach a conclusion that the area claimed is not certain Osho vs. Ape (1998) 8 NWLR Pt 562 Pg 492.
What is admitted in the Appellant’s traverse and the counterclaim need no further proof.
I therefore resolve this issue against the Appellant.
ISSUE TWO
Did the 1st Respondent prove her root of title to the land in dispute in accordance with the law to support the decision of the trial Court in her favour (Ground 2).
The learned counsel for the Appellant contended that the 1st Respondent did not prove her root of title to the land in dispute. Learned counsel to the Appellant stated that the Respondents by their pleadings pleaded that they purchased the disputed land and traced their root of title to one Ilu Usman’s uncle. Counsel contended further that the pleadings and evidence show that the sale transactions were under native law and custom. Garuba vs. The Public Trustees (1947) 18 NLR Pg 132. The law requires that sale transactions of land under customary law must be done in the presence of witnesses who will testify to that effect. Odusoga vs. L.L. Ricketts (1997) 17 SCNJ Pg 135.
Counsel further contended that the oral evidence of PW1 and PW5 do not support the pleadings at paragraph 11 of the Statement of Claim i.e that uncle Usman founded the land in dispute. Counsel submitted that evidence of a party which is at variance with the pleadings go to no issue. Okhuarobo vs. Aigbe (2002) 3 SCNJ Pg 109.
It was the case of the Respondents that there was a sale transaction between Ilu Usman and his uncle but none of the witnesses came to testify to this same transaction. It is trite law that for 1st Respondent to succeed in her claims for declaration of title she must establish her title as well as that of the person from whom she claims. Ngere vs. Igbo (2000) 2 SCNJ Pg 136.
Counsel urged the Court to resolve this issue for the Appellant.
The learned counsel to the Respondents stated that it is settled law that where a party has satisfied the Court as to his title to the land in dispute, the Court need not necessarily inquire into the title of his predecessor in title and that the party does not need to prove the title of his vendor except where it has become an issue. Ajibulu vs. Ajayi (2004) 11 NWLR Pt. 885 Pg 458.
Despite this the Respondents traced their root of title both in their pleadings and in their evidence. Further the learned counsel submitted that in order to transfer absolute title under Customary Law, it ought to be pleaded and proved that the sale was concluded in the presence of witnesses and that they actually witnessed the actual delivery handing over of the land to the purchaser. It is also a prerequisite of Customary Law that the purchaser of land be let into possession. These requirements of Customary Law Sale were satisfied by the Respondents in Ojelade vs. Soroye (1998) 5 NWLR Pt. 549 Pg 284.
The Respondents’ counsel also argued that paragraph 11 of the Statement of claim was not traversed by the Appellant. The Appellant merely denied and stated that he would put the Respondents to the strictest proof. Counsel referred to the cases of Oseni vs. Dawodu (1994) 4 SCNJ Pt. 2 Pg. 197, Adeleke vs. Aserifo (1990) 3 NWLR Pt. 136 Pg. 92. Order 24 Rule 9 of the Taraba State High Court (Civil Procedure Rules 1997) which states as follows:
“Every allegation of fact in any pleading, not being a petition or summons, if not denied specifically or by necessary implication, or stated to be not admitted in the pleadings of the opposite party, shall be taken to be admitted, except as against an infant, a lunatic, or person of unsound mind not adjudged lunatic.”
Finally, the learned counsel to the Respondents submitted that the Respondents have been able to prove a better title and is entitled to the declaration made by the trial Court. In the Appellant’s counterclaim, he was also unable to prove the title to the land in dispute.
Counsel urged the Court to hold that the Respondents proved a better title and as such this issue must be resolved for the Respondents.
A plaintiff who seeks declaration of title to land must prove his root of title to the land. Where he traces his title to a particular person, he must further prove how that person got his own title or came to have the title vested in him, including, where necessary, the family that originally owned the land. Archibong vs. Edak (2006) 7 NWLR Pt. 980 Pg 485, Dike vs. Okoloedo (1999) 10 NWLR Pt. 623 Pg 359, Otanma vs. Youdubagha (2006) 2 NWLR Pt. 964 Pg 337.
The Respondents as Plaintiffs traced their root of title to the original owner i.e Ilu Usman’s uncle. The 1st Respondent bought the disputed land in September, 2000 for N30,000.00 from the 2nd Respondent. The transaction was reduced into writing Exhibit 1 and was immediately put in possession of land in the presence of witnesses.
The 2nd Respondent purchased the land with development from one Diyase Maisalah for N350.00 in the presence of witnesses on 28th August, 1991 and was immediately put in possession of same in the presence of witnesses. The transaction was reduced into writing titled “Shadan Cinikin Gida.” The document was written in hausa “Exhibit 2A and 2B” and was translated and certified.
The 2nd Respondent also stated that she was in possession without interference until she sold it to the 1st Respondent The 3rd Respondent averred that he also bought the land from Ilu Usman who himself bought same from his uncle named Usman for 30 shillings in 1981 which however was not reduced into writing but was done in the presence of witnesses. The 3rd Respondent also averred that he put one Dimas Maigari on the land who farmed on it uninterrupted for so many years.
The 1st Respondent has traced her root of title to the original owner and the Appellant has not been able to contradict these facts as stated.
The Appellant averred that he bought the disputed land from 3 vendors at different times and that was the sum total of his averment. He could not trace further than these 3 vendors.
Where the Plaintiff and the Defendant are both seeking a declaration of title and ownership of a land in dispute, the duty of the trial Court is to weigh their evidence on the imaginary scale and determine which evidence of the two is weightier. Ibikunle vs. Lawani (2007) 3 NWLR Pt. 1022 Pg. 590, Okolo vs. Dakolo (2006) 14 NWLR Pt. 1000 Pg. 401.
In the instant case, the Plaintiffs/Respondents proved to the satisfaction of the trial Court the root of his title whereas, the Appellant fell short of proving his title to the land in dispute. The evidence of the Respondent is weightier than that of the Appellant and as such the Appellant’s issue two is resolved against him.
ISSUE THREE
In the absence of evidence of the 1st Respondent’s workmen on the land coupled with the failure of the learned trial Judge to visit the locus in quo, can it be rightly said that the purported acts of harassment and trespass alleged against the Appellant by the 1st Respondent proved to support the judgment of the trial Court on the issue of trespass and harassment, having regard to the provision of Section 138(1) of the Evidence Act (Grounds 4, 5).
The Appellant contended that the Respondents did not prove the acts of trespass because none of the workmen was called as a witness to testify as to these acts of trespass by the Appellant.
The Appellant also alleged that, the trial Judge failed to visit the locus in quo to ascertain whether indeed there was trespass.
In answer to this, the Respondents’ counsel stated that if a claimant establishes by evidence acts of exclusive or actual possession, he is entitled to a declaration that the Defendant is a trespasser. See Oluwole vs. Abubakar (2004) 10 NWLR Pt. 882 Pg 549.
The 1st Respondent in November, 2000 deposited large quantities of sand, cement, blocks and stones on the land in dispute. This is the Appellant confirmed in his Statement of Defence paragraphs 6 and 8 that indeed, the 1st Respondent brought these materials to site and started work.
The Respondents’ counsel submitted that any entry into the land in possession of another not permitted by the person in possession is wrongful. Thus the Appellant admitted that he entered the land without permission and ordered the 1st Respondent and her workmen out. This is an act of trespass.
Trespass to land is actionable per se without proof of actual damage. Damages would therefore be awarded to a party once he has succeeded in proving the act of trespass. Ajayi vs. Jolaosho (2004) 2 NWLR Pt 856 Pg 89. Here, the Appellant actually admitted that he went to the disputed land and ordered the 1st Respondent out. See paragraph 8 (vi – viii). What is admitted does not need any further proof. There was no need for the 1st Respondent to bring her workmen to testify as to the trespass. So also the trial Judge did not have to visit the locus in quo to ascertain these acts of trespass.
In a claim for damages for trespass and an injunction to restrain further trespass once there is a finding of trespass, the claims for damages and injunction must be awarded by the Court. Ogunyombo vs. Ookoya (2002) 16 NWLR Pt. 793 Pg. 224.
It therefore follows that, the trial court was right in its findings that the Appellant trespassed. Having found as a fact that there was trespass by the Appellant by his own admission, the trial Court must find for the 1st Respondent and award, the general damages claimed.
The 3rd issue is also resolved against the Appellant.
ISSUE FOUR
Whether the award of Two Hundred Thousand (N200,000.00) general damages for trespass and Ten tThousand (N10,000.00) Naira costs against the Appellant was not excessive having regard to the circumstances of the case and the factors relied upon by the court in making the awards. (Ground 6, 7).
General Damages are damages which the law implies or presumes to have accrued from the wrong complained of General Damages are presumed to flow from the immediate, direct and proximate result of the wrong complained of the Court, in exercising its discretion in awarding general damages has the responsibility to calculate what sum of money will be reasonable in the circumstances of the case. Garba vs. Kur (2003) 11 NWLR Pt. 831 Pg.280, Osuji vs. Isiocha (1989) 3 NWLR Pt. 111 Pg. 623, Ijebu-Ode Local Government vs. Adedeji Balogun & Co. (1991) 1 NWLR Pt. 166 Pg. 136, Akanmu vs. Olugbode (2001) 13 WRN 132.
The trial Court has the discretion to award general damages even though such discretion must be exercised judicially and judiciously. Garba vs. Kur (supra).
It is trite that an award of general damages can be made notwithstanding that special damages claimed in this suit was not strictly proved, provided that there is evidence showing that the party so claiming suffered some damages. Garba Vs. Kur (supra).
In the instant case, it was proved that the 1st Respondent deposited large quantities of sand, cement blocks and stones and was not allowed by the Appellant to continue with her building project. As if that was not bad enough, the Appellant brought about 10 thugs who destroyed the foundation in progress by ” burying it.” These are the destruction that one could approximate in the award of damages. General Damages flow from the immediate, direct and proximate result of wrong complained of. The Appellant prevented the 1st Respondent from continuing in her building project from 2000 to 2003 when she sued the Appellant for a declaration and trespass.
In the award of general damages by the trial court, I believe the right principles of law were applied.
The trial Judge has this to say about what influenced his award.
“I think Two hundred thousand Naira as general damages against the defendant Edward Daloba and in favour of the 1st Plaintiff Mrs. Esther Ripiye would be a reasonable and fair award. It is not unreasonable nor too high viewing the time plaintiff wasted, inconvenience caused her and her workmen, possible skyrocketing or hike in prices of building materials caused by a delay of about 4 years now.
Indeed the act of harassment by defendant’s 10 thugs should be taken into account as a factor too in assessing general damages. Defendant walking out on her and the closure or sending up of the foundation that was dug for 10 rooms. Visits of over 5 times to defendant fruitless and failure of fall interventions; all have influence me in coming to the conclusion that the damages awarded is modest and in the interest of justice in the circumstance .”
The trial Judge exercised his discretion judicially and judiciously in the award of general damages. This cannot be faulted. I do not intend to tamper with this award.
In the award of N10,000.00 costs, the trial Judge exercised his discretion. Cost follows event and I don’t think this award is excessive. I must also accept the cost of N10,000,000 awarded to be in order,
Having failed to convince the Court on questions of the general damages awarded and the cost, this issue is also resolved against the Appellant.
I will agree with the Respondents’ counsel that issues 5 and 6 of the Appellant ought to be argued together as they border on bias and lack of fair hearing.
The right to fair hearing is a Constitutional Right enshrined in Section 36 of the 1999 Constitution. The right cannot therefore be waived or statutorily taken away, Bamgboye vs. University of Ilorin (1999) 10 NWLR Pt. 622 Pg 290, Awoniyi vs. The Registered Trustees of the Rosicrucian Order, Amorc (Nig.) (2000) 6 SC Pt. 1 Pg 103.
The basic attributes of fair hearing include:
(a) That the Court shall hear both sides not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case.
(b) That the Court or Tribunal gives equal treatment, opportunity and consideration to all concerned.
(c) That the proceedings be heard in public and all concerned shall be informed of and have access to such place of public hearing.
(d) That, having regard to all the circumstances, in every material decision in the case justice must not only be done but must manifestly and undoubtedly be seen to have been done.
Usani vs. Duke (2004) 7 NWLR Pt. 871 Pg 116, Fagbule vs. Rodrigues (2002) 7 NWLR Pt. 765 Pg 188, Eshenake vs. Gbunfe.
Fair hearing within the meaning of Section 36(1) of the 1999 Constitution means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties. It requires the observance of the twin pillars of the Rules of Natural Justice namely audi alteram partem and nemo judex in causa sua. Eshenake vs. Gbinife (2006) 1 NWLR Pt 961 Pg 228. The principle of Audi alterem partem is not a massive shield which a litigant can cover himself with, with a view to circumventing the due process of law, or shielding himself from the consequences of litigation at his whims and caprices. Also a party seeking to invoke the principle of Audi alteram partem in his favour must show that he was deliberately bye-passed and excluded from proceedings before he can succeed. Folbed Investment Ltd vs. Alpha Merchant Bank Ltd (1996) 10 NWLR Pt 478 Pg 344.
It is also necessary for a Court to adjudicate on matters before it timeosly. The Court cannot be held to ransom by any litigant who has set out to frustrate the proceedings of the Court and constitute himself a clog in the wheel of machinery of the Court. Anyah vs. African Papers of Nigeria Ltd (1992) 6 NWLR Pt. 247 Pg 319. Adeniyi vs.. Yaba Tech (1993) 6 NWLR Pt 30 Pg 426.
The business of the Court is to adjudicate and avail all parties of the principles of audi alteram partem in the most humanly way possible, bearing the interest of both parties in mind. A party who alleges that the proceedings of a Court occasioned a miscarriage of justice to him has the burden to prove it. This the Appellant has failed to do in this case. Donatus Ndu vs. The State (1990) 7 NWLR Pt. 164 Pg 550.
It is trite law that once there is a breach of fair hearing, the whole proceedings, in the course of which the breach occurred and the decision arrived at by the Court becomes a nullity.
A.N.P.P vs. INEC (2004) 7 NWLR Pt. 871 Pg 16. All Peoples Party vs. Ogunsola (2002) 5. NWLR Pt761 Pg 484, BON Ltd vs. Adegoke (2006) 10 NWLR Pt. 983 Pg 339.
In the instant case, the Appellant alleged that the trial Judge was biased and as such the principles of fair hearing was breached. It would be apt to trace the alleged breach from the inception of this case.
The Appellant was granted an order to put in his appearance out of time by a motion filed on 14th July, 2003. Also granted the Appellant, was an extension of time to file the Defendant/ Appellant’s Statement of Defence. Plaintiffs/Respondents closed their case on 5th November, 2003 and the case was adjourned for defence to open on 27th November, 2003. On that day the Appellant applied for an adjournment. The reason was that the Defendant himself was not available as he was away on official engagement. No other, witness was taken on that day.
On 8th December, 2003 two Defence Witnesses were taken. On 26th January, 2004 only one Defence Witness was taken.
On 28th January, 2004 the Appellant applied for yet another adjournment as the Defendant/Appellant was not present to give his evidence. This was granted. On 2nd March, 2004, the defence couldn’t continue as they had no witness in Court. In granting this adjournment the trial Judge warned that this would be the last at the instance of the Defendant/Appellant.
On 22nd March, 2004 the Defendant/Appellant’s counsel wrote asking for yet another adjournment due to ill health. This was granted without any objection from Plaintiffs/Respondents’ counsel. On 4th May, 2004 an adjournment was granted at the instance of the Plaintiff/Respondents.
Yet again on 20th May, 2004, the Defendant/Appellant could not continue with his defence as none of the Defence Witnesses showed up. Respondents’ counsel opposed the application for another adjournment but later conceded. The Court warned that this was going to be the very last adjournment. The Court also warned that if the defence couldn’t continue, addresses would be taken.
On the 8th June, 2004 the defence again applied for yet another adjournment which was vehemently opposed. The trial Court in refusing this application had this to say:
“Court: Defendant’s Counsel says case can’t proceed today because the remaining defendant’s witnesses couldn’t be secured. They live at mile 6 and the other one he doesn’t know his occupation and residence. Two of them were in court here but were not taken because counsel was before another court. This is what Chia Esq. informed me. It is true; this was the position on 4/5/04.
However on 20/5/04 I ordered that it was going to be the last adjournment in this case if no further steps to conclude the Defendant’s case is taken.
This has not happened. Defence counsel no doubt appears more dutiful and committed to the Defendant’s case than the Defendant himself who ought to procure his witnesses for the interview of his counselor in necessary situations depose to affidavit of fact as evidence.
He has left counsel to pursue the mutual duties which are indeed exclusive of one another.
I think clearly that Andekimbe Esq. is right when he urge me to close the defence and allow plaintiff to proceed to her address as to do otherwise is to hold the hands on scale of justice unevenly between the parties.
Justice delayed is justice denied. It would appear to be an apron string intended to truncate or delay this proceed as defendant, though entitled to appear through counsel has from the trend of this case not shown any desire to really establish a defence.
Else, why can’t he testify personally and then ask for a subpoena on his remaining desired witnesses?
I’m not unmindful of the ingot of counsel on party to arrange or decide the order in which he intends to take his witnesses as a right or discretion of handling is that of counsel.
A court of law is however entitled to draw inferences from the conduct of a case with a view to knowing whether or not it is an effort at defence or a ploy or hood wink.
I have no reason to grant a further .adjournment as it appears clearly a ploy to delay the trial and ultimately frustrate the prosecution thereof.
Also to grant a further adjournment against my earlier order in this circumstance would also amount to an over indulgence in my view.
Therefore, I refuse to adjourn further I accordingly order that defence be closed. Plaintiff may proceed to address the Court.
The Court actually over indulged the Defendant/Appellant having allowed him 5 adjournments to produce his witnesses. It is not surprising that the court refused the Defendant/Appellant re-opening its defence. The Defendant/Appellant have not shown due diligence in putting up his defence. A party who wants to be absolved from liability must be conscientious and vigilant in defending his case, even if his counsel is not in Court to follow the progress of the case. In the instant case, the Appellant displayed a non-challant and lackadaisical attitude in the defence of his case and no Court will accept that sort of attitude from a party who seeks to be absolved from liability. See Muhammed vs. Kpelai (2001) 6 NWLR Pt. 710 Pg 700.
The Defendant did not also address the court when asked to. The Plaintiffs/Respondents’ counsel also magnanimously did not reply as there was no address. Failure to address the Court does not amount to breach of fair hearing. In the instant case, the Appellant was given ample opportunity to take whatever steps he would have wished to have, but threw it away. Muhammed vs. Kpalai (supra).
It is unfortunate to accuse the learned trial Judge of being biased when infact he was too lenient on the Defendant/Appellant.
A Defendant must show due diligence in the prosecution of his case. This the Defendant/Appellant has not done. A Court can not force an unwilling party to the Court to do his case. The Court only owes a litigant a duty to inform him of the date which his case is coming. The trial Judge adjourned for 5 consecutive times for the defence to put in his witnesses which he failed to, or neglected to do. The maxim “equity aids the vigilant and not the indolent” is one that is appropriately invocable in the instant case. The trial Court afforded the Appellant the opportunity to listen to the Respondents’ evidence or witnesses who testified against the Appellant. The Appellant cannot complain that he was not availed his Constitutional Right of fair hearing most especially in the circumstances, and against the backdrop of the attitude of indifference of the Appellant. He was undoubtedly given ample opportunity to be heard. State vs. Onagoruwa (1992) 2 NWLR Pt 221 Pg 33, Obot vs. Central Bank of Nigeria (1993) 1 NWLR Pt 310 Pg 140.
A party, who deliberately refused to be an active part of his trial process, does so at his own peril for if at the end of the day the end result of a case is not in his favour, he has himself to blame.
The miscarriage of justice is a double-edged sword that operates both ways. A party cannot hold the other to ransom and expect justice to lean towards him only. A litigant can not complain of bias and fair hearing where he was given ample opportunity to put in his defence. See Muhammed vs. Kpelia (supra).
Counsel must be slow in alleging bias or the breach of fair hearing where the party is tardy in the prosecution of his case. In sum I believe the trial Judge was fair in his indulgence of the defence. It, is commendable that the trial Judge always gave the reasons for his bench rulings. His reasoning and conclusions did not exhibit any bias but stated the situation as it is. The defendant deserved to be condemned in stronger words at the lackadaisical way he treated the Court and his case.
He would not be allowed to turn round and shout bias, and the breach of fair hearing. Issues 5 and 6 as articulated by the Appellant therefore fail.
The six issues articulated by the Appellant have all been resolved against the Appellant. This appeal therefore fails. The judgment of the trial Court delivered on 31st January, 2005 is affirmed. I also affirm the N200,000.00 awarded as general damages and the N10,000.00 cost awarded against the Appellant.
N30, 000.00 costs is also awarded the Respondents against the Appellant.
BODE RHODES-VIVOUR, J.C.A: I have had the privilege of a preview of the judgment of my Learned Brother, Ndukwe-Anyanwu. JCA just read. For the reason given in the said judgment I, too dismiss the appeal and abide by all the orders made by His Lordship in the said judgment.
ABUBAKAR DATTI YAHAYA. J.C.A. I have had the opportunity of reading in advance, the judgment of my Lord NDUKWE-ANYANWU, J.C.A. just delivered. It is obvious to me, that at the rate the appellant as defendant was going at the trial court, he had no intention of defending his case diligently. The trial Judge was indeed patient and had given the appellant every opportunity to be heard in his defence. There had to be an end to the frequent applications for adjournment on his part. If the trial Judge had not put a stop to it, the respondent as plaintiff, would have been seriously prejudiced and tax payers’ funds unnecessarily wasted.
A horse-owner discharges his responsibility when he takes his horse to the river. It remains the choice of the horse whether to drink or not. Once an opportunity is afforded to a litigant to be heard, the constitutional requirement enshrined in section 36(1) of the 1999 Constitution is satisfied. The Judge is the master of his court and must guard against the erosion of his authority, which would turn the court room into a play ground.
It is most unfair to castigate the trial Judge with an allegation of bias, when the record does not bear that position, and the trial Judge does not have the opportunity of a reply. It bears repeating, that such careless complaints should be avoided, especially by counsel who are ministers at the temple of justice and who must therefore avoid any conduct that is likely to erode the confidence of the members of the public, reposed on the judiciary. Such can only stimulate individuals to take matters into their hands and anarchy would be the undesirable consequence.
The five consecutive adjournments granted to the appellant to defend the action, were adequate testimony of the opportunity afforded to him to be heard in his defence. It does not lie in his mouth therefore, to shout bias and lack of fair hearing. It is crying wolf and he cannot have any sympathetic ear on the basis of such an unfounded allegation of denial of fair hearing. It was his carelessness that cost him, and not any unfair treatment from the court.
I also dismiss the appeal and abide by the orders made in the lead judgment including the Order as to costs.
Appearances
M.I. Tyonongo Esq.For Appellant
AND
Y.N. Akirikwen. Esq;
S.N. Gabao EsqFor Respondent
