MUKAILA OWOLABI & 11 ORS. V. WOSILATU S. BELLO & ANOR
(2011)LCN/4578(CA)
In The Court of Appeal of Nigeria
On Thursday, the 26th day of May, 2011
CA/I/139/2004
RATIO
FAIR HEARING: WHETHER A PARTY WHO FAILED TO ATTEND THE SITTING OF THE COURT CAN BE HEARD TO COMPLAIN OF FAIR HEARING
In the case of OKOTCHA VS HERWA LTD (2000) 15 N.W.L.R Part 690 pages 249 at 258 paras G-H, the court had this; to say: “Where a party to a suit has been afforded a reasonable opportunity of being heard in the manner-prescribed under the law and for no satisfactory explanation he fails or neglects to attend sitting of the court, the party cannot thereafter be heard to complain of fair hearing.” In the above case, Onnoghen J.C.A as he then was had this to say: “It is not fair or just to the other party or parties as well as the court, that a recalcitrant and defaulting party should hold the court and other parties to ransom. The business of the court cannot be dictated by the whims and caprices of any party. It goes without saying that justice must be even handed.” Fair hearing is not an abstract term available to a party at all times and in all circumstances, even when a party has displayed un-seriousness and nonchalance. Fair hearing must be real and must be considered in the light of facts and circumstances surrounding the case. See OLATUBOSUN vs. ANENTH (2009) 18 N.W.L.R. Part 1165 Page 560 at 57, Paras F-G. PER MODUPE FASANMI, J.C.A.
DECISION OF COURT: HOW DOES THE COURT ARRIVE AT ITS DECISION IN CIVIL CASES
The law is settled that in a civil case, the only way to reach a decision as to which party is entitled to judgment is by determining on which side the weight of evidence lies. See BALOGUN VS U.B.A. LTD (1992) 6 N.W.L.R Part 247 Page 336 AT 351 Paras F-G. PER MODUPE FASANMI, J.C.A.
ARREST OF JUDGMENT: WHETHER THE POWER FOR AN ARREST OF JUDGMENT IS OBTAINABLE IN CIVIL CASES
Also, it is doubtful if the Court below would have had the powers to arrest the judgment on account of the fact that the prayer for an arrest of judgment is hardly obtainable in civil cases See Bob Manuel v. Briggs (1995) 7 NWLR (pt. 409) 537; and the case of Newswatch Communications Limited vs. Attah (supra) at page 307 thus: “The Rules of Court do not make provision for an application to arrest a judgment, which is about to be delivered by a court. An application not recognized by the Rules of Court cannot be described as a proper application. I think that the application to arrest the judgment about to be delivered was in fact a cynical attempt to taunt the trial court given the fact that the appellant had before then disdainfully refused to put his defence. I am unable to see that the appellant was in the circumstances denied its right to fair hearing.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
ADJOURNMENT: WHETHER THE GRANT OF ADJOURNMENT MUST IN THE INTEREST OF ALL CONCERNED
Justice delayed is equally justice denied. And justice is a tripartite affair as held by the Supreme Court in Nigeria Ports Authority v. Construzioni Generali Farsura Cogefar Spa and Another (1974) 1 ALL NLR (pt. 11) 463 at 471 thus: “We think that we should stress here that in civil cases, it is the duty of the parties to produce their witnesses; and as far as possible, either party should be alert throughout the trial. We think that there are occasions where it will not be in the interest of justice to grant an adjournment. It should always be borne in mind that the interest of justice does not mean just the interest of the applicant; it also includes the interest of the respondent and the court. In other words, the adjournment being sought should, in a strict sense, be in the interest of all concerned.” PER JOSEPH SHAGBAOR IKYEGH, J.C.A.
JUSTICES
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
MUKAILA OWOLABI & 11 ORS. Appellant(s)
AND
WOSILATU S. BELLO & ANOR Respondent(s)
MODUPE FASANMI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of an Ogun State High Court Holden at Ijebu-Ode Judicial Division, delivered on the 26th of March, 1998.
The hearing of this case originated from Ota Judicial Division and Judgment delivered at Ijebu-Ode Judicial Division where the learned trial judge was transferred to. The Respondents in this appeal who were the Plaintiffs at the lower Court by paragraph 15 of their amended Statement of Claim claimed as follows:
(1) Declaration of Statutory Right of Occupancy of the parcel of farmland at Iloye vs. Temidire, Sango Otta, Ogun State as per the Survey Plan
(2) N1, 000.00k damages for trespass committed by the Defendants, their servants, agents and or privies on the land aforesaid.
(3) Permanent injunction restraining the Defendants, their servants, agents and/or privies from further acts of trespass therein.
Pleadings were exchanged amongst the parties and the case was opened and tried. After series of adjournments, precisely on the 26th of March, 1998 when the learned trial Judge was to deliver judgment in the consolidated suits, learned Counsel for the Appellants brought a motion to arrest the judgment. The motion is dated 11th March, 1998 and filed in Court on the 12th of March, 1998 alleging that due to the default and/or negligence of the Counsel and not that of the Appellants urged the Court not to visit the fault of the Counsel on the Appellants. On the said motion, the trial Court held as follows:
“I do not consider this is a case in which my judgment should be arrested and the case reopened as the Plaintiffs Counsel had addressed the Court on 10/3/98 and judgment reserved till today”
The learned trial Judge delivered the judgment on the 26th of March, 1998 and granted the Respondents claims in their writ of summons.
Appellants being dissatisfied with the said judgment appealed to this Court to set aside the said judgment on the ground that the proceedings and the judgment are vitiated by the breach of the principles of natural justice and Section 33(1) of the 1979 Constitution. Appellant’s notice of appeal is dated and filed on the 29th of April, 1998 containing three grounds.
In compliance with the rules of this Court, parties exchanged briefs of argument. Appellants’ brief of argument was settled by Otunba Olatunji O. Ogunyemi on the 14th of September, 2004 while the Respondents brief of argument was settled by Mr. Akinlolu Omoyinmi on the 15th of November, 2004. Appellants in their brief of argument raised three issues for determination as follows:
(1) Whether, the Appellants who were the Defendants at the trial Court were afforded the opportunity to fair hearing based on the principles of natural justice
(2) Whether the Appellants while before the trial Court were afforded their fundamental and Constitutional right to fair hearing as Constitutionally guaranteed by Section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 now Section 36 (1) of the 1999 Constitution
(3) Whether the learned trial Judge had not visited the default, mistake and inadvertence of their Counsel Chief E. O. Madandota on the Appellants during the hearing and trial of the suit, thereby denying them opportunity of fair hearing
The Respondents adopted the issues formulated by the Appellants. I am however of the view that the appeal can be effectively disposed off on issues 1 & 2. Issues 3 are therefore subsumed in issues 1 & 2.
Appellants’ Counsel in proffering legal arguments on the issues formulated argued issues 1 & 2 together.
Learned Counsel for the Appellants in arguing issues 1 & 2 submitted that the Appellants who were the defendants at the trial Court were always present during the hearing of the Respondent’s case between 30/1/97 to 12/2/97. On 29th April, 1997, 2nd, 5th, 6th and 9th Appellants were present in Court but the defence of the Appellants could not proceed because of the illness of the Appellants counsel who requested for an adjournment. Appellants Counsel Chief Oye Madandola suggested three days in his letter which said dates the Counsel to the Respondents Mr. A. Adenekan told the Court were not convenient for him. The Court adjourned the suit to the dates asked for by the said Respondents Counsel i.e. 8th July, ’97 and 22nd July, ’97. On 8th July, ’97 Appellants Counsel was absent and the learned trial Judge adjourned till 28/10/97 for defence. After series of adjournments at the instance of the Appellants Counsel, the learned trial Judge on the 10th of March 98 reserved judgment till 26/3/98.
On 26/3/98, learned Counsel for the Defendants/Appellants brought an application seeking leave of the Court to enable the Appellants defends the action. The Counsel admitted the faults were on his own part and urged the Court not to visit the sins of the Counsel on his clients. The Court however refused the application and proceeded to deliver the judgment of the Court thereby giving judgment in favour of the Respondents.
He submitted further that on the 10th of March 98, when the Court took the address of Plaintiffs Counsel, the Defendants Counsel wrote to court seeking adjournment. The learned trial judge failed to make an order on the application before proceeding to take the address and reserved judgment till 26th March, 1998 when the judgment of the Court was delivered. He contended further that from the Court proceedings particularly when the suit was transferred to Ijebu-Ode Judicial Division and the learned trial Judge became seized of the hearing of the suit, the said learned trial Judge denied the Appellants their opportunity to fair hearing and failed to afford the Appellants their Constitutional rights to fair hearing as provided for under the Constitution. He relied on the case of BAMGBOSE VS UNIVERSITY OF ILORIN (1999) 6 S.C.N.J. page 295 at 351.
Section 36 (1) of the 1999 Constitution from its wordings deals with the determination of the civil rights and obligations of a person by a Court or tribunal established by law. He cited SIKIRU A. BAKARE VS LAGOS STATE CIVIL SERVICE COMMISSION & ANOR (1992) 8 N.W.L.R Part 262 page 641 at 699 para H. Submitted further that a person whose rights and obligations are in issue must be given an opportunity to be heard in the defence of such rights by the Court established for that purpose. Constitutional provision for fair hearing can only be satisfied if the person to be heard is present. In the instant case, the Appellants were not given the opportunity to be present in Court and be duly heard in defence of their rights and obligations as constitutionally provided. He submitted further that when the learned trial Judge decided to take the address in accordance with the provisions of Order 37 rule 7 of the Ogun State High Court (Civil Procedure Rules) 1987 the learned trial Judge failed to exercise his discretion under the said rule judiciously and judicially. It is the cardinal principle of doing justice among the parties that the discretion of the Court is always exercised judiciously and judicially among the parties to the suit and not in favour of just one of the parties. At the time the learned trial Judge proceeded to take the address of the Counsel to the Respondents, the learned trial Judge failed to observe the principles of natural justice by not hearing the Appellants case first before ordering the address. He submitted further that if the proceedings of the Court in this case is tested from the point of view of a reasonable person who could have been present at the trial, it would be found that the hearing did not consist of the whole hearing of the parties to the suit before the learned trial Judge proceeded to take the address of the Counsel for the Respondents and delivered a judgment of Court thereon. The proceeding is fundamentally and constitutionally defective. Counsel relied on the case of OJENGBEDE VS M.O. ESAN (2001) 8 N.S.C.Q.R page 461 at 470 para H and 471 para A.
Learned Counsel for the Appellants submitted that since the hearing breached the principles of natural justice and the fundamental Constitutional rights of the Appellants to fair hearing as constitutionally guaranteed, the whole proceedings and the judgment is automatically vitiated with basic fundamental irregularity which renders the proceeding and the judgment null and void ab initio. Learned Counsel for the Appellants in the interest of doing substantial justice among the parties urged the court to resolve issues 1 & 2 in favour of the Appellants, set aside the proceedings and the judgment delivered on the 26th of March, 1998 and order the re-hearing of the suit de novo.
Learned Counsel for the Respondents submitted that the complaints of the Appellants in their appeal will be examined as against the indications in the record of proceedings as guide. He referred to some of the remarks of the learned trial Judge in the course of the trial when the Appellants were delaying the hearing of the case. He referred to page 95 lines (30-31) and 96 lines. 1-3 where Court said:
“The Defendants are warned that in the interest of justice, the case will be adjourned and is hereby adjourned till 28/10/97 when defence is to open unfailingly”
“Is the Court to continue to be held to ransom in a part heard matter in which Plaintiffs closed their case over a year ago?”
At page 102 lines 3-6, the learned trial Judge explained that:
“In view of the history of this case in accordance with the several adjournments, I don’t consider that this is a case in which my judgment should be arrested.”
Learned Counsel for the Respondents submitted that the Appellants are bound by the record of proceedings and their complaints on appeal ought to be limited to the indications on the record of proceedings. He referred to the case of ONWUANUMKPE VS ONWUANUMKPE (1993) 8 N.W.L.R Part 310 page 186 at 205. Accordingly unless the Appellants can show that by the record of proceedings, there is clear indication that Appellants were not offered opportunity to be heard, the appeal will fail. Learned Counsel placed reliance on the case of ELUKPO & SONS VS F.H.A. (1991) 3 NWLR Part 170 at 322.
On the Appellants complaint that there is nothing to show that the parties and their Counsel addressed the Court before it came to the findings it made, Appellants alleged that they were not aware that the suit had been transferred to Ijebu-Ode division. Learned Counsel for the Respondents in reply submitted that there is no foundation for the complaint. It is misconceived and should be rejected. He referred to what led the learned trial Judge to express what she did at page 110 lines 23-27.
In this regard, the important facts as evidence on record are as follows:
“(1) On 8/7/97 again the learned Counsel for the Defendants wrote asking for an adjournment due to his continued illness and specifically asked for 28th October, 1997 and 29th October, 1997 for defence. The two dates were accepted but by 28/10/97, I had been transferred from Otta”
“(2) at page 111 lines 1-3 of the record, the Court observed:
“28/10/97 was a date specifically requested for by their Counsel in his letter of 8/7/97, when 2nd, 5th, 6th and 9th Defendants were in ‘Court”
Learned Counsel for the Respondent submitted that based on the evidence which she had correctly assessed and appraised, the learned trial Judge was entitled to reach that conclusion. The complaint of the Appellant is unfounded. He submitted that the learned trial Judge would have loved to listen to and hear the Defendants and their Counsel but they were sitting down at home and that is not where trials are conducted. He contended that the learned trial Judge made a proper and appropriate order for address.
Appellants’ submission that they suffered breach of fair hearing when the suit was transferred to Ijebu-Ode High Court from Otta is a misconception of law and principles. He submitted that the transfer of the suit affected both the Appellants and the Respondents. The transfer was regular and proper. Things were to fall apart by Appellants design. At that stage the Court had discretion. The Court knew it was necessary for her to take account of necessary matters and leave out unnecessary one before coming to a conclusion. The Court exercised its discretion with great care and ensured that the Defendants absence and their counsel’s absence Chief Madandola’s did not hold the court to ransom. Learned Counsel for the Respondent referred to the case of OYEYIPO VS. OYINLOYE (1987) 1 N.W.L.R Part 50 page 356 at 359 where the court states that:
“A party who has failed or neglected to submit his case for consideration cannot complain of a denial of fair hearing since such failure tantamount to abandonment of the appeal.”
He contended further that the situation to arrest the judgment was intended to overreach, embarrass or surprise the Respondents. He submitted that the learned trial Judge was in order by refusing the motion dated 11/3/98 to arrest the judgment of the court. Learned Counsel for the Respondent submitted that the complaints of the Appellants are baseless, has no merit and urged the court to resolve issues 1 and 2 against the Appellants.
To determine whether or not the Appellants were denied fair hearing, it is important to trace the history and the circumstances of the case.
Appellants did not deny the fact that they were aware of the existence of the suit filed by the Respondents against them. They cannot deny the several adjournments granted at their instance by the lower court. Defendants were absent, their lawyer was also absent. At page 110 lines 23-27, the learned trial Judge had this to say:
“On 8/7/97 again the learned counsel for the Defendants wrote asking for an adjournment due to his continued illness and specifically asked for 28th October, 1997 and 29th October, 1997 for defence. The two dates were accepted but by 28/10/97. I had been transferred from Otta”
At page 111 lines 1-3 of the record, the court observed that:
“28/10/97 was a date specially requested for by their counsel in his letters of 8/7/97 when 2nd, 5th 6th and 9th Defendants were in court.”
The question then is the learned trial Judge to be responsible for
(i) The Defendant absence
(ii) Chief Madandola’s the Respondents’ Counsel Absence
I will say no. In the case of OKOTCHA VS HERWA LTD (2000) 15 N.W.L.R Part 690 pages 249 at 258 paras G-H, the court had this; to say:
“Where a party to a suit has been afforded a reasonable opportunity of being heard in the manner-prescribed under the law and for no satisfactory explanation he fails or neglects to attend sitting of the court, the party cannot thereafter be heard to complain of fair hearing.”
In the above case, Onnoghen J.C.A as he then was had this to say:
“It is not fair or just to the other party or parties as well as the court, that a recalcitrant and defaulting party should hold the court and other parties to ransom. The business of the court cannot be dictated by the whims and caprices of any party. It goes without saying that justice must be even handed.”
Fair hearing is not an abstract term available to a party at all times and in all circumstances, even when a party has displayed un-seriousness and nonchalance. Fair hearing must be real and must be considered in the light of facts and circumstances surrounding the case. See OLATUBOSUN vs. ANENIH (2009) 18 N.W.L.R. Part 1165 Page 560 at 57, Paras F-G.
Appellants just made a bare statement without any proof even though they must be aware that anyone who asserts must prove. Appellants’ assertion that they were not given the opportunity to be present in court and be heard in defence of their rights and obligations is misconceived in view of their continuous absence and that of their counsel in court. The situation in my view is that the Appellants abandoned the court to its fate and challenged it to do whatever it wished to do in their absence. If the Appellants to be heard is not present in court after due service of hearing notice then who is to make them present?
Appellants’ motion dated 11/3/98 seeking to arrest the lower court judgment was a delaying tactics. The learned trial Judge was in order by refusing the motion and the court’s ruling which states:
“In view of the history of this case in accordance with the several adjournments I don’t consider that this is a case in which my judgment should be arrested.”
Is quite apt. Trial courts are admonished in the strongest possible terms against undue and or inordinate delay in the determination of suits once the actual hearing of such suits has commenced. See the case OF EGBO VS AGBORA (1997) 1 N.W.L.R Part 481 at 293.
The law is settled that in a civil case, the only way to reach a decision as to which party is entitled to judgment is by determining on which side the weight of evidence lies. See BALOGUN VS U.B.A. LTD (1992) 6 N.W.L.R Part 247 Page 336 AT 351 Paras F-G.
In the instant case, since the Appellants by deciding to call no evidence put anything on their own side of the balance inspite of the evidence called by the Respondents. They cannot now complain that judgment was not given in their favour. Appellants have therefore failed woefully to establish any specific act of denial of fair hearing.
Appellants were afforded the opportunity to be heard but they neglected to use it and engaged in delay tactics. See the cases of NARUA VS MONSTER (1982) 12 C. A. page 161 at 174, AINA VS OBABIOLORUNKOSI (1986) 2 N.W.L.R Part 22 Page 316 at 330. In the case of Aina vs. Obabiolorunkosi supra the court said:
“The writ was dated 23/4/75 Judgment was given in 1982 which is a period of 7 years.”
This court stated emphatically
“It would be highly prejudicial and embarrassing to the plaintiff to re-open the ‘matter. There must be an end to litigation.”
In the same vein, this court will adopt this principle in the instant appeal since the Appellants have failed to establish bias and breach of fair hearing. This court will refuse to reopen the case as there must be an end to litigation.
One who asked for adjournments and was granted had been offered opportunity to be heard. The court has no business to go and wake up the party in slumber or lethargy. Issues 1 and 2 is hereby resolved against the Appellants.
Finally, the appeal lacks merit and it is accordingly dismissed. The judgment of the lower court delivered on the 26th of March, 1998 in suit nos. HCT/46/87 and HCT/109/97 consolidated is hereby affirmed. Cost of N30, 000.00 is hereby awarded against the Appellants.
SIDI DAUDA BAGE, J.C.A.: I have had the opportunity of reading in draft the comprehensive judgment prepared by my learned brother, M. FASANMI, J.C.A.
I agree with his reasoning’s and conclusions reached and I entirely agree that the appeal lacks merit and it ought to be dismissed. I also dismiss same and I abide by the consequential order contained in the lead judgment.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I agree with the lucid judgment prepared by my learned brother, FASANMI, J.C.A., which I was afforded the opportunity of reading in draft.
From the compiled record of the court below, it is undeniable that the court below bent over to afford the appellant the opportunity of defending the action which the appellants neglected to utilize. There is the adage that one can take a horse to water but may not be able to force it to drink the water. Justice delayed is equally justice denied. And justice is a tripartite affair as held by the Supreme Court in Nigeria Ports Authority v. Construzioni Generali Farsura Cogefar Spa and Another (1974) 1 ALL NLR (pt. 11) 463 at 471 thus:
“We think that we should stress here that in civil cases, it is the duty of the parties to produce their witnesses; and as far as possible, either party should be alert throughout the trial. We think that there are occasions where it will not be in the interest of justice to grant an adjournment. It should always be borne in mind that the interest of justice does not mean just the interest of the applicant; it also includes the interest of the respondent and the court. In other words, the adjournment being sought should, in a strict sense, be in the interest of all concerned.”
Also, it has to be stressed as was done in the case of Kaduna ile Ltd v. Umar (1991) 1 NWLR (Pt. 319) 143 at 159 that:
“Where a party in a suit has been accorded a reasonable opportunity of being heard and in the manner prescribed under the law and for no satisfactory explanation he fails or neglects to attend the sitting of the Court, the party cannot thereafter be heard to complain of lack of fair hearing. The question is, is it fair and just to the other party or partner as well as the Court that a recalcitrant defaulting party should hold the Court and other parties to ransom? Should the business of the Court be dictated by the whims and caprices of any party? I think not. It goes without saying that justice must be even-handed for the law is no respecter of Persons.”
See further Newswatch Communications Ltd vs. Attah (2006) 4 SCNJ 282 at 299-300.
Also, it is doubtful if the Court below would have had the powers to arrest the judgment on account of the fact that the prayer for an arrest of judgment is hardly obtainable in civil cases See Bob Manuel v. Briggs (1995) 7 NWLR (pt. 409) 537; and the case of Newswatch Communications Limited vs. Attah (supra) at page 307 thus:
“The Rules of Court do not make provision for an application to arrest a judgment, which is about to be delivered by a court. An application not recognized by the Rules of Court cannot be described as a proper application. I think that the application to arrest the judgment about to be delivered was in fact a cynical attempt to taunt the trial court given the fact that the appellant had before then disdainfully refused to put his defence. I am unable to see that the appellant was in the circumstances denied its right to fair hearing.”
It is for the above reasons, and the vivid reasons given in the judgment of my learned brother, FASANMI, J.C.A., that I would, also, dismiss the appeal for lacking in merit and abide by the consequential orders contained therein.
Appearances
OTUNBA O. O. OGUNYEMIFor Appellant
AND
A. A. OMOYINMIFor Respondent
