TADE ALUKO v. EMMANUEL OLUGBENGA AJIBOYE
(2011)LCN/4550(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 17th day of May, 2011
CA/AE/102/2010
RATIO
FAIR HEARING: CONSEQUENCE OF A COURT PROCEEDING CONDUCTED IN THE ABSENCE OF FAIR HEARING
The principle of fair hearing is fundamental to all court procedure and proceedings, the absence of it vitiates the entire proceedings no matter how well conducted, and it can be likened to jurisdiction. See ATANO V BENDEL STATE (1988) 2 NWLR (75) 32, SALU V. EGEIBON (1994) 6 NWLR (348) 23; and AI STHAM V. SARAKI (2005) 3 NWLR (911) 208. PER CHIDI NWAOMA UWA, J.C.A.
FAIR HEARING: MEANING OF “FAIR HEARING” WITHIN SECTION 36(1) OF THE 1999 CONSTITUTION
The principle of fair hearing is not only a common law right but also a right guaranteed under S. 36 (1) of the 1999 Constitution, fair hearing within the above Section means nothing less than a trial conducted according to all the rules, formulated to ensure that justice is done to the parties. It envisages compliance with the old principles of natural justice that is audi alteram peritem and nemo judex in causa sua, see NTUKIDEM V. OKO (1986) 5 NWLR (PART 45) 909; BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (PART 622) 290; and U.N.T.H.M.B. V.NNOLI (1994) 8 NWLR (PART 363) 376. In essence, a party should not be denied of the opportunity of not fully presenting his case but must be given full (and equal) opportunity to present his defence. PER CHIDI NWAOMA UWA, J.C.A.
SERVICE OF HEARING NOTICE: WHETHER A FRESH HEARING NOTICE SHOULD BE SERVED ON AN APPELLANT WHERE HIS COUNSEL WITHDRAWS FROM THE CASE IN HIS ABSENCE
…the apex court in the case of NDUKAUBA V. KOLOMO (2005) 4 NWLR (PART 915) pages 411 at 430 – 431 held as follows: “With respect to the trial Judge, I think he was mistaken not to have directed that a fresh hearing notice be served on the appellant when his counsel withdrew from the case. Had this been done, appellant would have been enabled to engage a new counsel or straighten his relationship with his old counsel or appear by himself. Appellant might even have decided to do the cross-examination of DW2 himself… The withdrawal of further appearance by counsel was not one the appellant could have reasonably envisaged. It was the trial court, which gave appellant’s counsel the permission to withdraw; and the same court should have brought the development to the notice of the appellant”. Similarly, in the case of S.B.N. PLC V. B.A.O. MOTORS (NIG) LTD (2004) 7 NWLR (PART 873) page 579 at 500 where it was held that the trial court had no right to proceed with the hearing without adjourning and notifying the appellants directly the fate of their case where counsel withdrew his appearance orally in court in the absence of the appellants. Failure to adjourn, the trial court’s action was held to be arbitrary and its judgment a nullity. PER CHIDI NWAOMA UWA, J.C.A.
APPEARANCE OF PARTIES IN COURT: WHETHER A PARTY MUST STILL BE PRESENT IN COURT WHEN HE IS REPRESENTED BY A COUNSEL
I had stated earlier in this judgment that there is no rule or law that requires that a party be present in court when he is represented by counsel, I agree with the learned counsel to the appellant that appearance in court is not a condition precedent to the grant of an application to recall a witness. It is true that such grant is at the discretion of the court but, such discretion must be judicially and judiciously exercised and fair to both parties. PER CHIDI NWAOMA UWA, J.C.A.
FAIR HEARING: THE TEST OF FAIR HEARING; PURPOSE OF THE DOCTRINE OF FAIR HEARING AS ENSHRINED IN THE PROVISIONS OF S. 36 (I) OF THE 1999 CONSTITUTION
The test of fair hearing is whether a reasonable man observing the trial court, from his observation would come out and say that the trial was a fair one and that justice has been done in the case, any conclusion to the contrary means absence of fair hearing or trial. See, ORUGBO V. ORS V. AINA & ORS (1997) 8 NWLR (PART 16) 255, the old case of ISIAKU MOHAMMED V. KANO NATIVE AUTHORITY (1968) 1 ALL NLR 424, 426 and SHEKETE VS. N. A. F. C2007) 14 NWLR L1053) 159 at-192 D – F. The doctrine of fair hearing enshrined in the provisions of S. 36 (i) of our 1999 constitution is to ensure that in all matters that are for adjudication before a court of law, all parties are accorded ample opportunity of being heard. See OLANIYI V. ADEYEMI (1990) 4 NWLR (PART 147) 749. A case cannot be said to be properly determined unless the persons whose civil rights and obligations may be directly affected have been notified of the matter and given the opportunity of answering the case against him. See GEORGE V. DOMINION FLOUR MILLS LTD (1963) 1SCNLR 117 at PAGE 123. PER CHIDI NWAOMA UWA, J.C.A.
ISSUE OF FAIR HEARING: IMPORTANCE OF THE ISSUE OF FAIR HEARING ON A COURT PROCEEDING AND THE TEST OF MEASURING THE FAIRNESS OF A PROCEEDING
…the issue of fair hearing is not a technical or nominal doctrine. It is one of substance. Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, provides for a fair hearing. The important essence of the right to a fair hearing is that a party should not be denied of the opportunity of not fully presenting his case, but must be afforded full opportunity to present his defence. The test of measuring the fairness of a proceeding before a court of first instance is the impression of a reasonable person who was present at the trial. A hearing can only be fair when all parties to the dispute before the court are given a hearing or an opportunity of a hearing. If one of the parties is not availed of that opportunity, the hearing cannot qualify as a fair hearing. See Olumesan Vs. Ogundepo (1996) 2 N.W.L.R (Pt.433) 628: Gukas Vs. Jos International Breweries Limited (1991) 6 N.W.L.R (Pt.199) 614: Otapo Vs. Sunmonu (1987) 2 N.W.L.R (Pt.58) 587. The right to fair hearing does not even stop with the parties being present in court. It also includes a right to be heard at any material stage of the proceedings. See Agbahomovo V. Eduvegba (1999) 3 N.W.L.R (Pt.549) 170: Ekuma V. Sylva Eagle Shipping Agencies (Nig.) Limited (1987) 4 N.W.L.R (Pt.65) 472. PER UWANI M. ABBA AJI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
TADE ALUKO Appellant(s)
AND
EMMANUEL OLUGBENGA AJIBOYE Respondent(s)
CHIDI NWAOMA UWA, J.C.A.(Delivering the Leading Judgment): This appeal is against the judgment of M. O. Abodunde, J of the High Court of Ekiti State, delivered on 30th March, 2009. The respondent was the plaintiff before the trial court. The plaintiff’s claim before the trial court is as follows:
i. ” One million naira being general damages for trespass committed and still being committed by the defendant on plaintiff’s land situated at Odunro family land off Iworoko Road, Ado – Ekiti covered by survey plan No. JAO/OD/223/95.
ii. An order of perpetual injunction restraining the defendant his agents, servants or privies from going to the said land or doing anything whatsoever on same.”
The appellant as defendant also counter claimed against the respondent and prayed for the following reliefs:
a. “The sum of five million naira only as general damages for the continued act of trespass on defendant’s land by the plaintiff which land is lying, being and situate at the Odunro family land off Iworoko Road, Ekiti State.
b. An order of perpetual injunction restraining the plaintiff his agents, privies and assigns from further committing any act of trespass on the said land now and henceforth.”
It was contended by the appellant that, without the leave of the lower court the respondent filed his reply to the statement of defence and counter claim out of time on 22nd February, 2007.
The case of the respondent as plaintiff was that the land in dispute originally belonged to the Odunro family of Ado Ekiti from whom Mr. and Mrs. Afolabi Oye purchased same in 1985. They sold the land in dispute to the plaintiff in 1995 and the land was surveyed the same year by the respondent’s surveyor. In 1999 the respondent applied for the certificate of occupancy in respect of the land in dispute. The Director of Lands Services Ekiti State issued a public Notice to that effect, calling for any objection against the issuance of the certificate of occupancy to the respondent in respect of the land in dispute; vide Nigerian Tribune of Monday 29th November, 1999. There was no objection to the respondent’s application. The Respondent made out that he had been exercising various acts of ownership on the land in dispute without any hindrance until 3rd May, 2006 when the respondent’s brother and his attorney visited the land in dispute and saw people working on the land. The Respondent’s investigation later revealed that it was the appellant who took the workmen to the land in dispute.
The appellant was said to have continued working on the land despite the “Stop Work Notice” pasted on the building under construction, by the Director of Urban and Regional Planning, Ekiti State at the instance of the respondent. On the failure of the appellant to stop work as directed, the respondent instituted this action.
With the appellant as defendant and counter claimant, his case was that the land in dispute was sold to him by the Odunro family, the original owner of the land in dispute in 2006, forty years after the said family sold to same Mr.. and Mrs. Afolabi Oye.
A member of the Odunro family testified on behalf of the appellant, who admitted that the former head of his family sold some plots of land.
On 24th July 2007, when the matter came up for hearing, learned counsel to the defendant withdrew his appearance with the leave of court and the matter proceeded to hearing the same day.
At the close of trial, the trial court found the appellant liable for trespass, restrained the appellant perpetually from further acts of trespass on the land in dispute while dismissing the appellant’s counter claim.
Dissatisfied with the said judgment, the appellant appealed to this court. By a Notice of Appeal dated and filed on 27th April, 2009, the appellant filed seven (7) grounds of appeal from which seven (7) issues were formulated for determination by this court. They are:
(A) “Whether the plaintiff has locus standi to sue or the lower court ought to have entertained the suit of the plaintiff i.e. respondent herein. (Ground 1)
(B) Whether it was fair and just on the part of the lower court to proceed into hearing on 24th July, 2007 in the absence of appellant and a legal representation (Ground 2)
(C) Whether it was fair and just to refuse appellant’s application to recall PW1 on the premise of appellant’s absence from court. (Ground 3)
(D) Whether Exhibits ‘A’, ‘B,’ ‘C’ and ‘E’ are evidence of title to land and are sufficient as prove (sic) of title to land by plaintiff i.e. respondent herein. (Ground 4)
(E) Whether the decision reached in Exhibit ‘H’ i.e. the palace judgment is not legally binding and permissible particularly when Exhibits ‘A’, ‘B’, ‘C’ and ‘D’ were not made available, presented or tendered when parties in Exhibit ‘H’ submitted to the customary arbitration i.e. Ewi in Council (Ground 5)
(F) Whether the counter claim of the appellant might not to have succeed (sic) and granted (Ground 6)
(G) Whether the judgment of the lower court is not against the weight of evidence.” (Ground 7)
The respondent on his part formulated six issues for determination. They are:
i. “Whether the Respondent has the locus standi to institute this action at the lower court.
ii. Whether the Appellant was not given a fair hearing by the trial court having regards to the facts and circumstances of this case.
iii. Whether Exhibits ‘A’, ‘B’, ‘C’ and ‘E’ do not constitute evidence of facts of long possession and enjoyment of the land in dispute.
iv. Whether Exhibit ‘H’ is legally binding on the parties and creates estoppels.
v. Whether the appellant proved his counter claim before trial court.
vi. Whether this honourable court can rightly interfere with the findings of fact made by the trial judge.”
When the appeal was heard, the learned counsel to the appellant Taiwo Ogunmoroti Esq adopted and relied on his brief of argument dated 30th November, 2009 filed on 1st December, 2009 and a reply brief dated and filed on 26th January 2010 In the said brief of argument, in respect of his first issue, it was submitted that the respondent had no locus standi to take out this action as only Mrs. Agnes Ajiboye could do so. Before this action was taken Mrs. Agnes Ajiboye the wife of the respondent’s attorney had reported the matter to the Ewi in Council and judgment had been delivered in the matter as per Exhibit ‘H’. It is the same land Mrs. Agnes Ajiboye claimed to be hers over which this action was taken. It was submitted that the respondent never sought the permission, authority/ consent and concurrence of Mrs. Agnes Ajiboye to sue on her behalf but rather it was Emmanuel Olugbenga Ajiboye, not a party to the matter before the Ewi in Council vide Exhibit ‘H’ who was said to have donated a power of Attorney to Mr. Michael Ajiboye, the husband of Mrs. Agnes Ajiboye.
It was contended that the respondent cannot authorize Mr. Michael Ajiboye to sue on his behalf since, ownership does not reside in him and as such he cannot alienate, give, allocate, grant, sell or donate to another what does not belong to him, reference was made to the case of DANIEL KALIO VS DANIEL KALIO (2005) 4 NWLR (PART 915) page 305 AT 324 – 325 paragraph H – A. It was argued that it is only Mrs. Agnes Ajiboye that can and ought to have sued or permitted her husband to sue on her behalf and not the respondent herein who has no locus standi to come to court over the land. On this issue we were urged to allow the appeal and dismiss the respondent’s claim.
Further, the power of Attorney granted by the respondent was neither tendered nor registered, failure to tender same, it was argued, that the power of attorney never existed and if it did, it was tantamount to withholding of evidence which is fatal, S. 149 (d) of the Evidence Act was relied upon as well as the case of N.E.R.D.C V GONZE (NIG) LTD (2000) 9 NWLR (PART 673) page 532 at 549 paragraphs B – C. Reference was made to S. 2 of the Land Instrument Registration Law Cap 54 Laws of Ondo State of Nigeria as applicable in Ekiti State, also Sections 16 and 17 of the same law. On the meaning of the Power of Attorney, reliance was placed on the case of ABUBAKAR V. WAZIRI (2008) 14 NWLR (PART 1108) page 507, 533 G, 534 C – D.
We were urged to hold that the purported attorney of the respondent has no locus standi to institute the action.
It was further submitted that from paragraphs 7 and 8 of the statement of claim and the evidence of the DW3, no time did the respondent purchase the land in dispute from the Odunro family but rather from Mr. and Mrs. Afolabi Oye. It was argued that by virtue of S. 64 of the Property and Conveyancing Law cap. 81 Law of Ondo
State of Nigeria as applicable in Ekiti State husband and wife are separate persons which means that, they cannot jointly allocate, alienate, buy, sell or grant any property to anybody in the names of Mr. and Mrs. which are unknown to Law, reliance was placed on the case of LION OF AFRICAN INSURANCE CO. LTD V. ESAN (1999) 8 NWLR (PART 614) page 197, 202, paragraphs B – C. The resultant effect is that Mr. and Mrs. Afolabi Oye cannot transfer land to the respondent, therefore the respondent could not have bought the land in dispute and had no locus standi to institute the action, and we were urged to resolve this issue against the respondent.
On the appellant’s issue B, it was submltted by learned counsel to the appellant that on 24th July, 2007, the then counsel to the appellant Tope Kolawole had applied to withdraw his appearance from the matter, since he could no longer ascertain the where about of the appellant which application the learned trial judge granted. It was submitted that the learned trial judge proceeded to hearing on the said 24th July, 2007 in the absence of the appellant and without legal representation. The trial court did not adjourn and did not cause a hearing notice to be issued and served on the absent defendant whose counsel had just withdrawn from the matter.
Reliance was placed on the following cases: NDUKAUBA V. KOLOMO (2005) 4 NWLR (PART 91s) page 411 AT 430-paragraphs C, D – E. S.B.N. PLC V. B.A.O. MOTORS (NIG) LTD, (2004) 7 NWLR (PART 873) page 579 at 600 paragraph B other cases relied upon are, AKINNULI V. AYO ODUGBESAN (1992) 8 NWLR (PART 258) page 172 at 187 D – G; OSAYANDE V. ETUK (2008) 1 NWLR (PART 1068) page 211-, 235 – 236 paragraphs E – G. and USANI V. DUKE (2004) 7 NWLR (PART 871) page 116 at 153 paragraphs – F. We were urged to set aside the decision of the trial court being a nullity and having breached, truncated, violated and or glossed over all the principles of fair hearing.
On the appellant’s issue C, it was submitted by learned counsel that, the trial court having allowed the counsel to the appellant to withdraw from the matter on 24th July, 2007 , and having proceeded thereafter on the same day in absence of the appellant, the PW1 was not cross examined. It was argued that on the 26th November learned counsel applied to recall the PW1 for the purpose of cross examination but the application was refused for the reason that the appellant as defendant did not appear in court. It was submitted that appearance of a litigant is not a condition precedent to the recalling of a witness but a discretionary power of the court which must be fair, just, wise judicial and judicious. Reference and reliance was placed on the following cases; IRUHANRIA V. NIGERIAN ARMY (2007) 14 NWLR (PART 1053) PAGE 76, at 99 paragraphs B – C; JOHN ANDY SONS & CO. LTD V. MFAN (2005) 12 NWLR (PART 995) page 461 at 481 – 482 paragraphs H -A. We were urged to resolve this issue in favour of the appellant.
In respect of issue D, it was argued that Exhibits ‘A’, ‘B’, ‘C’ and ‘E’ tendered on 24th July, 2007 through PW1 are not evidence of title to land, i.e. survey plan, affidavit of change of ownership (iii) publication in the Nigerian Tribune and letter to Town Planning Office Exhibit ‘C’ were said not to have conferred any title on the respondent, see KOKORO – OWO v. LAGOS STATE GOVERNMENT (2001) 11 NWLR (PART 723) page 237 at 250 paragraph A.
A survey plan, it was argued is not evidence of acquisition of interest in land but, only identifies land. See JUWUL V. DIMLONG (2003) 9 NWLR (PART 824) page 154 AT 215 paragraphs E – G and OGBOGU V. UGMUEGBU (2003) 10 NWLR (PART 827) page 189 at 216 G – H, 218 paragraph E.
It was also submitted in alternative argument, that since Exhibits ‘A’, ‘B’, ‘C’ and ‘E’ were tendered on 24th July, 2007 through the PW1 after the counsel to the appellant (as defendant) had withdrawn from the matter on the same day, rather than the trial court adjourning the case, the appellant was denied fair hearing and the said Exhibits ‘A’, ‘B’, ‘C’ and ‘E’ which the trial court relied upon are null and void and have no effect on the claim of the respondent.
It was also the submission of learned counsel that there was no credible or reliable evidence before the court upon which the claim of the respondent could succeed. The purported guarantors Mr. and Mrs. Oye were not called as witnesses, no member of Odunro’s family testified in his favour. Failure to call vital witnesses in proof of the respondent’s case it was argued, is fatal to his case, see IGBE V. ELEKI (2000) 10 NWLR (PART 677) page 221 at 227 paragraphs D – E , also S. 149 (d) of the EVIDENCE ACT.
Further, that by virtue of Section 91 (i) of the Evidence Act the learned trial judge ought not to have placed much weight or value and reliance on these Exhibits as the PW1 was not the maker and did not lay proper foundation on the where about of the makers before tendering same. It was argued that no weight ought to have been placed on these Exhibits at all and that the respondent’s claim ought to have failed. We were urged to resolve this issue in favour of the appellant.
On issue E, it was submitted that Exhibit ‘H’ the palace judgment dated 12th May, 2006 tendered through DW1 was the decision of a customary arbitration based on the customary law of the lis citus to which the parties are bound. In Exhibit ‘H’, the appellant was adjudged the owner of the land in dispute. See EHOCHE V. IJEGWA (2003) 7 NWLR (PART 818) page 139 at 152 – 153 H – C It was submitted further that the respondent did not complain about Exhibit ‘H’, and neither did Mrs. Agnes Ajiboye. Exhibit ‘H’ it was argued, the effect of a judgment of a court of law and great value ought to have been accorded to it not having been set aside. The case of OPARAJI V. OHANU (1999) 6SC page 41 at 29 was cited and relied upon, amongst others. It was argued that the said decision also binds the parties as well as the privies, see the case of ABUBAKAR V. F.M.B. LTD (2002) 4 NWLR (PART 755) page 29 at 42 D -E
It was further submitted that the learned trial court raised the issue that Exhibit ‘H’ was not prepared with the consideration of Exhibits ‘A’, ‘B’, ‘C’ and ‘D’ respectively suo motu and resolved same without giving the parties the opportunity to address the court on it, see the cases of OKONJI V. NJOKANMA (1999) 14 NWLR (PART 638) page 250 at 265 – 266 paragraphs H – B, and ADENIRAN V. ALAO (2001) 18 NWLR (PART 747) page 361 at 410 – 411 paragraphs C – A. We were urged to resolve this issue in favour of the appellant.
In arguing issue F, on the refusal of the appellant’s counter – claim it was submitted that the respondent did not challenge the appellant’s counter claim because the reply to the statement of defence and defence to the counter claim was filed out of time without the leave of court. The appellant filed his counter claim on 31st October, 2006 with the leave of court after filing a motion for extension of time, the application was moved and granted on the 11th of January, 2007. While the respondent filed his reply to statement of defence and the defence to the counter claim on 22nd February, 2007 out of time, without the leave of court in defiance of
Order 25 Rule 3(4) of the Ondo State Rules of the High Court as applicable to Ekiti State. It was argued that the process is a nullity, see U. B. N. PLC VS SOGUNRO (2006) 16 NWLR (PART 1006) page 504 at 524 paragraph E also the case of AKPAJI V. UDEMBA (2002) 6 NWLR (PART 815) page 169 at-183 paragraph A.
It was argued that the resultant effect is that there was no challenge to the counter claim of the appellant which is tantamount to an admission.
In the alternative argument, it was argued that the appellant proved his counter claim through evidence. Reference was made to the evidence of DW1 and the Exhibits tendered through him, ‘G’ and ‘H’ respectively. The DW1 testified that after the purchase, he was put into possession and occupation and the appellant commenced work on the land. DW3 and Dw4 secretary and head of Odunro family respectively were said to have given evidence to the effect that they never gave land to the respondent but to the appellant herein. We were urged to resolve this issue in favour of the appellant.
On issue G, it was contended that the judgment of the trial court is against the weight of evidence. The evidence of PW1, DW3, DW4 and Exhibits ‘A’ and ‘H’ were reviewed and highlighted once again, as well as the issue of the trial court not adjourning the case on 24th July, 2007 when counsel to the appellant withdrew from the matter, it was argued, breached the appellant’s fundamental right to fair hearing.
Further, that Exhibits ‘A’, ‘B’, ‘C’, and ‘E’ upon which the learned trial judge was said to have relied upon in granting the plaintiff’s claim are unreliable. It was submitted that Exhibit ‘H’ alone was enough for the respondent’s case to have failed and that the refusal of the counter-claim occasioned a miscarriage of justice and is also perverse. In the appellants reply brief learned counsel highlighted paragraph 7 (d) of the statement of defence and counter claim where the judgment, Exhibit ‘H’ was referred to and or pleaded to the effect that the respondent has no locus to sue, reliance was placed on the case of BOOTHIA MARITIME INC. & 2 ORS V. FAREAST CO. (2001) 6 NSCQR P. 99 AT 111 paragraph F.
The learned appellant’s counsel refuted the respondent’s counsel’s argument that there was no appeal against the findings of the learned trial judge to the effect that the appellant was consistently absent from court despite issuance and services of hearing notices on him. He argued that this was covered by ground’s 1, 2 and 7 of the appellant’s grounds of appeal from which issues A, B and G were formulated. In respect of Exhibits ‘A’, ‘B’, ‘C’ and ‘E’, it was submitted that acts of long possession argued under the respondent’s third issue cannot confer title to land against the owner.
It was stressed that parties in a proceeding cannot by consent or waiver confer jurisdiction on the court where none exists, in that the respondent’s reply to the statement of defence filed out of time without the leave of court is a nullity. We were once again urged to resolve this issue in favour of the appellant.
In response to the appellant’s issues and in arguing his issues the learned counsel to the respondent Bamidele Omotoso Esq in his brief of argument dated 21st December, 2009 filed on 13th January, 2010 adopted and relied upon by the learned counsel when the appeal was argued, submitted under his issue one, that in order to determine whether the respondent has locus standi to institute this Acton, it is the statement of claim filed by the plaintiff that must be looked at and considered. Reference was made to the case of A. G. FEDERATION VS. A. G., ABIA STATE (2001) 11 NWLR (PART 725) and paragraphs 7, 8, 10, 11, 12, 13, 14, and 15 of the Statement of Claim, pages 13 – 14 of the records were reviewed. It was argued that the entire respondent needed to show to establish locus standi is that his civil rights and obligations have been or are in danger of being infringed upon. The cause of action and the facts of the case would be considered to determine disclosure of locus standi or otherwise. Reliance was placed on the cases of LAWAL v. SALAMI (2002) 2 NWLR (PART 752) 687 at 713, paragraphs D – F,
FAWEHINMI v. AKILU (1987) 4 NWLR (PART 67) 797 at 832 and ADEFULU v. OYEGITE (1989) 5 NWLR (PART 122) 377 at 418.
Further, that from the averments in the Statement of Claim, it cannot be controverted that the respondent disclosed sufficient interest in the subject matter of his claim to accord him the locus standi to institute this action. It was also argued that the issue of only Mrs. Agnes Ajiboye being the only person that could sue, does not arise as the issue of her ownership of the land in dispute is a material that ought to but, not pleaded by the appellant. See IBIDOKUN v. ADARALODE (2001) 12 NWLR (PART 727) 268. In arguing that the action was properly constituted, learned counsel submitted that there is no statutory requirement that a power of attorney for an agent to sue or defend on behalf of his principal should be by deed, and that it is competent for an agent to take out the action in the name of his principal.
It was also the contention of the learned counsel to the respondent that the appellant in paragraph 1 of his statement of defence and counter claim admitted paragraph 2 of the statement of claim and needs no further proof.
In the respondent’s issue two, on the issue of the appellant not being given fair hearing on the ground that his application to recall the PW1 was refused by the trial court, and the trial court not setting aside the proceedings of 24th July, 2007 , it was argued that on the above date the respondent appeared in court but the appellant was absent without any justifiable reason, counsel for both parties were in court but the appellant’s counsel withdrew his appearance and was granted leave to do so. The learned respondent’s counsel agreed that hearing was to commence and did commence on the aforesaid date with the respondent opening his case, the PW1 gave evidence in chief and the matter was adjourned for further hearing. On the next adjourned date, the appellant’s counsel appeared in court, while the respondent’s counsel called the PW2 in evidence that was cross examined by the learned appellant’s counsel. The respondent closed his case while the appellant’s counsel informed the court that he intended calling 4 or 5 witnesses, the case was later adjourned for defence. It was the argument of the learned counsel to the respondent that, the learned counsel to the appellant ought to have taken advantage of the adjournment on 24th July, 2007 to cross examine the PW1 when he re-appeared in the matter but failed to do so, and cannot turn round to complain of denial of fair hearing. See, ACB PLC V. TOR & BROS NIG. LTD (1997) 6 NWLR (PART 510) 692 at 706 – 707 paragraphs H – A, GOVERNOR OF OYO STATE V. FOLAYAN (1995) 8 NWLR (PART 413) 292 at 322 paragraphs A – B and TIWANI LTD V. C.T.M.B. LTD (1997) 8 NWLR (PART 515) 140 at 153 paragraphs D, F – D and INAKOJU V. ADELEKE (2007) 4 NWLR (PART 1025) 423 at 704 – 705, paragraphs F – E.
It was argued further by learned counsel to the respondent that the record of proceedings of the trial court revealed that the appellant was consistently absent from the proceedings despite the issuance and services of hearing notices on him, he reviewed the learned trial judge’s holding on this issue at page 21 of the printed records.
Learned counsel to the respondent agreed that on 26th November, 2007 the appellant’s counsel had applied for the recall of PW1 and his application was refused by the trial court. He argued that the appellant’s counsel waived his right to recall the PW1 when he cross examined the PW2 on a later adjourned date, conceding to the close of the respondent’s case and indication that he would call 4 – 5 witnesses in defence of the suit. Also that it was at the discretion of the learned trial judge to allow the recall of the PW1 on the 26th November, 2007. Reference was made to the case of S.I.E.C. EKITI STATE V. N.C. P. (2009) 12 NWLR (PART 1102) 720 at 749 paragraphs B – D. It was argued that there was nothing to justify the allegation of an unfair hearing. Learned counsel insisted that there was no genuine reason given for the absence of the appellant on 24th July, 2007 and that the appellant’s counsel’s argument that the trial court ought to have adjourned the proceedings and caused hearing Notice to be issued on the appellant as untenable. He also agreed that a party need not be present in court once he is legally represented and his counsel can conduct his case in his absence, but argued that the court is not expected to force a party to court to prove his case.
The respondent’s issue three is whether Exhibits ‘A’, ‘B’, ‘C’ and ‘E’ do not constitute Evidence of acts of long possession and enjoyment of land in dispute. The five methods of proving ownership of title to land as laid down in the case of IDUDUN V. OKUMAGBA (1976) 9 – 10 SC 227 were reviewed. Reference was also made to the averments in paragraphs 8,9, 10, 11, 12, 13 and 14 of the Statement of Claim, also paragraphs 6, 7 and 8 of the Reply to the Statement of Defence and Defence to counter claim. The evidence of PW1 and PW2 were reviewed as to the survey carried out, planting of the beacons, and sand supplied at the land in dispute, which the learned trial judge adjudged as proof of acts of possession and enjoyment of the land as opposed to the defendant’s counter claim and production of Exhibit ‘G’, pages 23 and 26 of the printed records. Exhibits ‘A’, ‘B’, and ‘C’ were held by the trial court to confirm proof of title by acts of long possession and enjoyment of the land.
It was the contention of the learned counsel to the respondent that the appellant failed to prove that the above findings by the learned trial judge are perverse or were not borne out of the evidence on record and that this court would not ordinarily interfere with the findings of fact of the trial court. Reliance was placed on the case of BASIL v. FAJEBE (2001) 11 NWLR (PART 725) 592 at 616 – 617, where it was held that in certain circumstances surveying land and burying survey pillars on it is evidence of possession. Exhibits ‘A’, ‘B’, ‘C’ and ‘E’ were said to have been legally admissible, relevant and rightly admitted by the learned trial judge. Learned counsel refuted the contention of the appellant’s counsel that the deponents to Exhibit ‘B’ are not juristic persons, and reliance on section 64 of the Property and Conveyancing Act.
The respondent’s fourth issue is whether Exhibit ‘H’ is legally binding on the parties and creates estoppel. It was argued by learned counsel to the respondent that Section 3 of the Arbitration Law of Ondo State as applicable in Ekiti State is inapplicable to the present case on the following grounds:
(a) Ewi in Council is not a court of law recognized in Ekiti State.
(b) The parties in Exhibit ‘H’ are different from the parties in the present suit.
(c) Section 3 of the Arbitration Law of Ondo State as applicable in Ekiti State says that a submission to arbitration shall not be binding by mutual consent.
(d) Estoppel must be specifically pleaded by the party raising same, and the appellant having failed to plead estoppels before the lower court cannot do so at this stage.
(e) No evidence In Exhibit ‘H’ that the parties agreed to be bound by the decision of the Ewi in Council.
Exhibit ‘H’ was said not to be legally binding and cannot create estoppel.
The respondent’s fifth issue is as to whether the appellant proved his counter claim before the trial court. The submission was that where a party claims for damages for trespass coupled with an order of injunction, declaration of title to land is in issue. Reference was made to the holding of the trial court at pages 24 – 25 of the judgment. We were urged not to interfere with the finding unless it is not supported by the pleadings and/or evidence or perverse. See NWADOGBU v. NNADOZTE (2001) 12 NWLR (PART 727) 315 at 330 paragraphs G-H
The evidence of PW1 and PW2 were reviewed and their evidence were said to have remained unshaken. Similarly, the evidence of the DW1, DW2 and DW3 were also reviewed. We were urged not to disturb the findings of the learned trial judge as they were supported by evidence.
We were also urged to discountenance the learned appellant’s counsel’s argument to the effect that the Reply to the Statement of Defence and Defence to counter claim having been filed outside the stipulated period without the leave of court as the issue was raised belatedly. It was submitted without conceding that if the process was filed late it should be treated as an irregularity which should not nullify the process, the appellant having taken fresh steps after becoming aware of the irregularity i.e. by cross examining respondent’s witnesses, calling witnesses and closing his case.
Further, on this issue that Exhibit ‘G’ does not confer title on the appellant, for the reason that as at the time it was issued to him by the Odunro family, the latter had no title over the land in dispute. See ADENIYI V. ONAGORUWA (2000) 1 NWLR (PART 639) 1 at 21 paragraph H.
The respondent’s sixth issue was whether this court can rightly interfere with the findings of fact made by the trial judge. In relying on his arguments in support of his issues 1 – 5, we were urged not to interfere with the findings of fact of the learned trial judge, the appellant not having proved that the findings of fact of the learned trial judge were perverse. As a whole, in all the issues raised on behalf of the respondent we were urged to resolve same in favour of the respondent.
From the issues raised by the parties for the determination of this appeal, the appellant’s issues B and C and the respondent’s issue (ii) raised the issue of fair hearing. The principle of fair hearing is fundamental to all court procedure and proceedings, the absence of it vitiates the entire proceedings no matter how well conducted, and it can be likened to jurisdiction. See ATANO V BENDEL STATE (1988) 2 NWLR (75) 32, SALU V. EGEIBON (1994) 6 NWLR (348) 23; and AI STHAM V. SARAKI (2005) 3 NWLR (911) 208
I would therefore resolve these issues first, put together; these issues could be summarized thus:
Whether the appellant was given a fair hearing by the trial court when:
(a) It proceeded with hearing on 24th July, 2007 in the absence of the appellant and a legal representation,
(b) Refusing the appellant’s application to recall PW1 on the premise of the appellant’s absence from court.
From page 33 of the printed records, before the trial court, on 24th July, 2007 the appellant as defendant was not in court, the learned counsel who appeared for the defendant Temitope Kolawole applied to withdraw his appearance from the matter, for the reason that he could no longer ascertain the where about of the defendant. The learned trial judge granted counsel leave to withdraw from the matter. The case which was fixed for hearing was not adjourned on that day and no hearing notice was ordered to be issued and served on the appellant, the learned trial judge proceeded to hearing on that day in the absence of the defendant and counsel, the evidence in chief of the PW1 was taken. On a later date, both counsel in their briefs of argument agreed that on 26th November, 2007 the appellant’s counsel applied to recall the PW1 for the purposes of cross examination, the learned trial judge refused, for the reason that the defendant did not appear in court.
The question that arises is: was the appellant’s right to a fair hearing in the suit against him compromised in the proceedings before the trial court? The principle of fair hearing is not only a common law right but also a right guaranteed under S. 36 (i) of the 1999 Constitution, fair hearing within the above Section means nothing less than a trial conducted according to all the rules, formulated to ensure that justice is done to the parties. It envisages compliance with the old principles of natural justice that is audi alteram peritem and nemo judex in causa sua, see NTUKIDEM V. OKO (1986) 5 NWLR (PART 45) 909; BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (PART 622) 290; and U.N.T.H.M.B. V.NNOLI (1994) 8 NWLR (PART 363) 376. In essence, a party should not be denied of the opportunity of not fully presenting his case but must be given full (and equal) opportunity to present his defence, moreso, in the present case where the same facts and or, evidence would be utilized in determining the main claim against the defendant but also his counter claim.
On the 24th July, 2007, the case was fixed for hearing; on that date the counsel retained by the appellant withdrew his appearance from the case because he had lost touch with the appellant. The withdrawal was in court. There is nothing on record to show that the appellant was aware or foresaw the event of that day or had notice or information. The resultant effect is that the evidence of the PW1, against the appellant was not challenged as there was no cross examination. The learned counsel to the respondent had argued that the appellant was absent from court on that day without any justifiable reason, since both counsel for the parties appeared in court. In my respectful view this argument is not tenable. As I stated earlier in this judgment, the appellant did not know and could not have known that the counsel he retained would withdraw from the case on the date the matter was fixed for hearing. There is no rule that says that a defendant must be present in court to defend a case against him; all that is required of him is to call witnesses in defence of the plaintiff’s claim, in the present case the plaintiff’s case was to open on that day.
In my respectful view, and as rightly argued by the learned counsel to the appellant, the proper thing to have done on that day was to have adjourned the matter and directed that a fresh hearing notice be served on the appellant when his counsel withdrew from the case. This would have given the appellant several options, this would enable the appellant as defendant engage a new counsel, make amends and renew his relationship with his old counsel or appear by himself, to cross examine the plaintiff’s witnesses and put himself through his defence. The appellant was given no option by the learned trial judge. In similar situations as has arisen here where counsel withdrew his appearance in the absence of his client when the matter was for hearing the apex court in the case of NDUKAUBA V. KOLOMO (2005) 4 NWLR (PART 915) pages 411 at 430 – 431 held as follows:
“With respect to the trial Judge, I think he was mistaken not to have directed that a fresh hearing notice be served on the appellant when his counsel withdrew from the case. Had this been done, appellant would have been enabled to engage a new counsel or straighten his relationship with his old counsel or appear by himself. Appellant might even have decided to do the cross-examination of DW2 himself…
The withdrawal of further appearance by counsel was not one the appellant could have reasonably envisaged. It was the trial court, which gave appellant’s counsel the permission to withdraw; and the same court should have brought the development to the notice of the appellant”.
Similarly, in the case of S.B.N. PLC V. B.A.O. MOTORS (NIG) LTD (2004) 7 NWLR (PART 873) page 579 at 500 where it was held that the trial court had no right to proceed with the hearing without adjourning and notifying the appellants directly the fate of their case where counsel withdrew his appearance orally in court in the absence of the appellants. Failure to adjourn, the trial court’s action was held to be arbitrary and its judgment a nullity.
The appellant’s counsel re-surfaced on 26th November, 2007, and applied to recall the PW1 for Cross Examination but the learned trial court refused because the defendant (now appellant) was not in court, I had stated earlier in this judgment that there is no rule or law that requires that a party be present in court when he is represented by counsel, I agree with the learned counsel to the appellant that appearance in court is not a condition precedent to the grant of an application to recall a witness. It is true that such grant is at the discretion of the court but, such discretion must be judicially and judiciously exercised and fair to both parties.
The learned trial judge gave reasons for the refusal which included the fact that the defendant was not in court and that the application was about seven months after the withdrawal. Learned counsel to the respondent argued that the appellant’s counsel had the opportunity of cross examining the PW1 before proceeding to cross examine the PW2 and allowing the respondent’s counsel close his case and thereafter informing the trial court he would be calling between 4 and 5 witnesses, not having done so, had waived his right to cross examine the PW1. I respectfully disagree with this argument, the learned counsel to the appellant, was absent when PW1 testified, having been discharged from appearance and would not be in a position to know what transpired in his absence. He was in order (and the law permits him to do so) when he applied to recall the PW1 for the purpose of cross examination, the argument that it was belated is not tenable in law. The essence is to ensure that the defendant was given equal opportunity to defend the case against him and put forward his, having also counterclaimed. In my humble but firm view, the discretion was not rightly exercised.
It was conceded by the learned counsel to the respondent that a party need not be present in court once he is legally represented and that his counsel could conduct his case In his absence, but on the date set for hearing, the appellant’s counsel was not in court when the case was heard by the learned trial judge and the appellant could not have known his counsel would opt out of the matter, for whatever reason. He argued that the court cannot force a party to court to prove his case or the court wait for a party, this argument would hold water if on being notified of the events of that day and after an adjournment the appellant failed to attend court in absence of his counsel on the next adjourned date, the appellant would have been given an opportunity to attend court but, failed to do so. The line of cases cited by learned counsel to the respondent on the appellant’s counsel’s failure to cross examine PW1 do not apply to the present circumstances, that is A.C.B. PLC V. TOR & BROS NIG. LTD (1997) (SUPRA), GOVERNOR OF OYO STATE V. FOLAYAN (1995) 8 NWLR (PART 413)292 AT 322 and TIWANI LTD V. C.T.M.B. LTD. (1997) 8 NWLR (PART 515) 140 AT 153 amongst others.
I am of the considered view that the learned trial judge’s refusal of the application to recall PW1 whose evidence counsel deemed necessary or essential to properly ventilate his case more so, PW1 testified in his absence, is a denial of the appellant’s right to fair hearing.
One may at this juncture ask the question: What is the test for fair hearing? The test of fair hearing is whether a reasonable man observing the trial court, from his observation would come out and say that the trial was a fair one and that justice has been done in the case, any conclusion to the contrary means absence of fair hearing or trial. See, ORUGBO V. ORS V. AINA & ORS (1997) 8 NWLR (PART
16) 255, the old case of ISIAKU MOHAMMED V. KANO NATIVE AUTHORITY (1968) 1 ALL NLR 424, 426 and SHEKETE VS. N. A. F. C2007) 14 NWLR L1053) 159 at-192 D – F.
The doctrine of fair hearing enshrined in the provisions of S. 36 (1) of our 1999 constitution is to ensure that in all matters that are for adjudication before a court of law, all parties are accorded ample opportunity of being heard. See OLANIYI V. ADEYEMI (1990) 4 NWLR (PART 147) 749. A case cannot be said to be properly determined unless the persons whose civil rights and obligations may be directly affected have been notified of the matter and given the opportunity of answering the case against him. See GEORGE V. DOMINION FLOUR MILLS LTD (1963) 1SCNLR 117 at PAGE 123.
The appellant ought to have been given full opportunity to be heard and to canvass the points he relies upon before any diverse decision is taken against him with regard to such rights and obligations.
The appellant from the circumstances of this case cannot be said to have been given fair hearing when the learned trial judge proceeded with the hearing of his case behind his back and In absence of a legal representation. Learned counsel’s withdrawal from the case at a stage and later returned did not mean that he waived his right to fair hearing as argued by learned counsel to the respondent. In my considered view there was a clear breach of the appellant’s constitutional right to fair hearing. The consequence is that the entire proceedings are therefore a nullity. See SALU V. EGEIBON (1994) 6 NWLR (PART 348) 23. 34 -35, 44 and ADIGUN v. ATTORNEY GENERAL OF OYO STATE (1987) 1 NWLR (PART 53) 678. The resultant effect is like the hearing never took place.
It is noteworthy that, as much as it is expedient for a court to dispose of as many matters as possible, it should not be done at the expense of deprivation of a party’s right to fair hearing. Denial of fair hearing cannot be termed as justice but a denial of same. Having resolved appellant’s issues B and C, and the respondent’s issue (ii) to the effect that the appellant was not accorded fair hearing on 24th July, 2007 when the trial court proceeded to hearing in his absence and without legal representation and refused the subsequent application to recall the PW1, the entire proceedings being a nullity, this court cannot proceed further to look into the merits of the other issues raised in the appeal. The decision of the learned trial judge, M. O. Abodunde, J of 30th day of March, 2009 is hereby set aside. The case is remitted back to the Chief Judge of Ekiti state for the case to be heard, de novo before another judge other than M. O. Abodunde, J. Parties are to bear their respective costs.
UWANI M. ABBA AJI, J.C.A.: I read before now the judgment of my learned brother, C.N. Uwa, J.C.A, just delivered and I agree with the reasoning and conclusions that the appeal is meritorious and ought to be allowed.
I just wish to add on the issue of fair hearing, that the issue of fair hearing is not a technical or nominal doctrine. It is one of substance. Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, provides for a fair hearing. The important essence of the right to a fair hearing is that a party should not be denied of the opportunity of not fully presenting his case, but must be afforded full opportunity to present his defence. The test of measuring the fairness of a proceeding before a court of first instance is the impression of a reasonable person who was present at the trial. A hearing can only be fair when all parties to the dispute before the court are given a hearing or an opportunity of a hearing. If one of the parties is not availed of that opportunity, the hearing cannot qualify as a fair hearing. See Olumesan Vs. Ogundepo (1996) 2 N.W.L.R (Pt.433) 628: Gukas Vs. Jos International Breweries Limited (1991) 6 N.W.L.R (Pt.199) 614: Otapo Vs. Sunmonu (1987) 2 N.W.L.R (Pt.58) 587. The right to fair hearing does not even stop with the parties being present in court. It also includes a right to be heard at any material stage of the proceedings. See Agbahomovo V. Eduvegba (1999) 3 N.W.L.R (Pt.549) 170: Ekuma V. Sylva Eagle Shipping Agencies (Nig.) Limited (1987) 4 N.W.L.R (Pt.65) 472.
Based on the above, and the fuller reasons in the judgment of my learned brother, C.N. Uwa, J.C.A that I allow this appeal as it is meritorious. The decision of the learned trial judge, M.O. Abodunde, J. delivered on the 30th March, 2009 is hereby set aside. The case is hereby sent back to the Chief Judge of Ekiti State for retrial by a judge of the High Court other than Hon. Justice M.O. Abodunde.
Parties to bear their respective costs.
HARUNA M. TSAMMANI, J.C.A.: I had the advantage of having a preview of the judgment just delivered by my learned brother, chidi Nwaoma Uwa, J.C.A.
I am in agreement with the reasoning arrived at by my learned brother. I only wish to add that when counsel for the Appellant withdrew his appearance on the 24/7/2007 in the absence of the Appellant, fair hearing demanded that the trial judge adjourn the matter and issue a hearing notice on the Appellant to appear either in person or through another counsel, on the next date of adjournment. The learned trial judge having failed to do so was in breach of the Appellant’s Fundamental right to fair hearing guaranteed by Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999.
The learned trial judge also breached the Appellant’s right to fair hearing when he refused to accede to the application of the Appellant to recall P.W.1 whose evidence was taken in his absence.
For those reasons and the more detailed reasons given by my learned brother, I too allow the appeal for want of fair hearing. I order that the matter be remitted to the Chief Judge of Ekiti State for trial de novo by another judge other than M.O. Abodunde, J. I abide by the order as to cost.
Appearances
Taiwo Ogunmoroti EsqFor Appellant
AND
Emmanuel Bamidele Omotoso EsqFor Respondent
