BENEDICT ORJI & ORS. v. OZO NNE ILOPUTAIFE & ORS.
(2011)LCN/4771(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of August, 2011
CA/E/162/2005
RATIO
RULES OF PROCEDURE: CLASSIFICATION OF THE RULES OF PROCEDURE
Looked upon from this point of view, it appears to me that all our rules of procedure can be classified into two. Some are purely technical in that they describe certain procedural steps to be taken, mainly for the convenience of the parties in litigation and the Court. But others go to ensure that justice is done to the parties – -“. – Per Nnaemeka-Agu, JSC (Highlights mine) PER AMINA ADAMU AUGIE, J.C.A.
MISCARRIAGE OF JUSTICE: DEFINITION OF THE TERM “MISCARRIAGE OF JUSTICE”
The term “miscarriage of justice” is defined as “a grossly unfair outcome in a judicial proceeding” – see Black’s Law Dictionary. 9th Ed. See also Ojo v. Anibire (supra), where the Supreme Court defined it as follows- “Miscarriage of Justice simply means a failure of Justice. What will constitute miscarriage of justice varies from case to case depending on the facts and circumstances. But to reach the conclusion that such a miscarriage occurred; it does not require a finding that a different result necessarily would have been reached in the proceedings to be affected by the miscarriage. It is enough if what has happened is not justice according to law; (Highlight mine). PER AMINA ADAMU AUGIE, J.C.A.
COUNTER-CLAIM: NATURE OF THE ROLES OF THE PARTIES IN A COUNTER-CLAIM
The Supreme Court clearly stated in Gowon v. Ike Okongwu (supra) that – “the Defendant in a counter-claim assumes the position of a Plaintiff and the Plaintiff in the original action assumes the position of a Defendant. Simply put the parties in the original action swap places in the counter-claim”. PER AMINA ADAMU AUGIE, J.C.A.
DUTY OF THE COURTS: DUTY OF THE COURT TO AFFORD THE PARTIES THE OPPORTUNITY OF BEING HEARD BEFORE IT TAKES A DECISION ON A CASE BEFORE IT
Every Court, be it a Native/Customary Court, a Magistrate Court, a High Court, an appellate Court or any other body performing the functions of a Court, has a duty to give parties the opportunity of being heard before it takes a decision on a case before it, A Court is a place where justice is administered, and it is a principle of natural justice that a decision can only be reached by any Court after a party that will be affected by it has been given the opportunity to be heard – see Fadlallah v. NAMB. Ltd (2007) ALL FWLR (Pt.385) 530. PER AMINA ADAMU AUGIE, J.C.A.
WHETHER A COUNTER CLAIMANT BEFORE A CUSTOMARY COURT SHOULD BE AFFORDED THE SAME CONSTITUTIONAL RIGHT TO FAIR HEARING THAT AN ORIGINAL CLAIMANT IS ENTITLED TO
A counter-claim is a separate action demanding the same respect as the original action, and the fact that it is before a Customary Court does not mean that the same constitutional right to a fair hearing that an original claimant is entitled to, should be denied to the counter-claimant. PER AMINA ADAMU AUGIE, J.C.A.
WHAT ORDER WILL BE MADE BY AN APPELLATE COURT WHERE IT COMES TO THE CONCLUSION THAT A PARTY’S COUNTER-CLAIM WAS NOT HEARD BEFORE THE LOWER COURT SET IT ASIDE
Setting aside the Appellants’ counter-claim without hearing from them is not a technicality, it is an outright miscarriage of justice – see Kotoye v. CBN (1989) 1 NWLR (pt.98) 419 SC, where the Supreme Court held – “- – The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice had been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing. Once an Appellate Court comes to the conclusion that a party was entitled to be heard before a decision was reached but was not given the opportunity of a fair hearing, the order or Judgment thus entered must be set aside. This is because such order is against the rule of fair hearing, one of the twin pillars of natural Justice which is expressed by the maxim: audi alteram partem.”(Highlights mine) The Appellants were not heard before their counter-claim was set aside with the wave of a hand, which is a clear breach of their right to a fair hearing, and the only option open to this Court is to allow the appeal – see Orugbo v. NNA (1997) 8 NWLR (pt.516) 255, wherein it was held – Once it is duly established that the right to fair hearing has been breached in a judicial proceedings, its breach vitiates the entire proceedings. Therefore when the appellate Court finds that the right of fair hearing is breached, it shall have no alternative but to allow the appeal. PER AMINA ADAMU AUGIE, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
CHUKWUDUMEBI SAMUEL OSEJI Justice of The Court of Appeal of Nigeria
Between
1. BENEDICT ORJI
2. GABRIEL ONWUANIA
3. DOMINIC UDENGENE
4. PIUS ARINZE
5. IGBO ARINZE
6. RAPHAEL NGENE
7. JAMES ACHOLA
8. IKEDIMMA ONWUEMELITA
9. ELIAS AGUSI
10. CHUKWUMA UMEGBORO
11. SAMUEL UMEGBORO
12. OBU IKE
13. MADUBUKO ONYEBUEKE
14. ONYEME AGUSI
15. CHUKWUJIOFOR OBI
16. OJI IKE
17. ANTHONY ADIBE
18. NWEKE ONYEVU
(For themselves and on behalf of Akwu Inyi Community) Appellant(s)
AND
1. OZO NNE ILOPUTAIFE
2. OZO IREJE AKABUEZE
3. RAPHAEL EJEAGU
4. DANIEL NWOKOLO
5. INNOCENT UZOKA
(For themselves and on behalf of Umuchukwu Family, Agbalidi Inyi) Respondent(s)
AMINA ADAMU AUGIE, J.C.A. (Delivering the Leading Judgment): The action that led to this appeal started at Inyi Customary Court in Oji River Local Government of Enugu State, and it involves a land dispute.
The Respondents, who are from Umuchukwu, Agbalidi Inyi, Oji River LGA, were the Plaintiffs at the trial Customary Court where they claimed ownership of land situated at Agbalidi Inyi, which contains different portions that “were issued to or given to Akwu people under lease to live and make use of until the Akwu people deserted or parked away from the area before the Plaintiffs or Umuchukwu family people regains the said land”. They specifically claimed the following reliefs –
(1) Declaration that they have or are entitled to a Customary right of Occupancy over the said portions of land which are situated at Agbalidi Inyi now in dispute with Akwu Inyi.
(2) An injunction retraining both parties from further entering into the disputed land pending the determination of the aforementioned Suit/matter.
The Appellants, who are from Akwu Village in Inyi Town in the same Oji River LGA, however, counter claimed that they “are the bona fide owners in possession from time immemorial of two pieces or parcels of land known as and called Ana Nkpulo and Agu Akwu”. They also prayed for –
(a) A Declaration of the title to the said pieces or parcels of land Ana-Nkpulo and Agu-Akwu situate at Akwu village, Inyi in Oji River LGA within jurisdiction;
(b) Perpetual injunction jointly and severally against the Defendants, their servants, agents and privies from further trespass into the said land whose annual value is N100,00 (One hundred naira); and –
(c) N2,000.00 (Two Thousand Naira) for general damages.
The matter came up for the first time on the 22nd of April 1998, and was adjourned by the Customary Court to the 15th of May 1998 for hearing. The record of the proceedings on the said 1st of May, reads as follows –
“Before the Court started its proceedings two developments were recorded. The 1st was a letter from the Plaintiffs to add a 5th Plaintiff – – The second development was a counter claim by the Defendants showing that the Plaintiffs don’t know the land in dispute. That all the land mentioned are from Akwu Village. The Court addressed both parties and promised to look into the counter claim and pronounce decision on the next adjournment. Case is therefore adjourned to the 21st of May 1998”.
The record of the Customary Court on the said 21st of May, is as follows –
“Both parties present.
COUNTER CLAIM – Suit No.ICC/BL/98 Judgment
The counter claim submitted to this Hon. Court by the Defendant on the 13th of May 1998 on original Suit No. ICC/81/98 has been looked into by this Court. The Court promised to deliver Judgment on that matter during the next adjournment. The Court therefore deposed as follows –
1. Paragraphs 1 – 6 of the counter claim were thoroughly looked into. The Defendants want this Court to believe that the parcels of land known as (1) Ana Nkpulo and Agu-Akwu are not synonymous with (1) Ugbo Land (2) Ngene lshi (3) Omerenwanuta Area and (4) Okpu Mmamu and others as land stated by Plaintiff as being in dispute. The Plaintiffs in the counter claim draw the attention of the Court to paragraph 4 of the substantive suit and paragraph 2 and 3 of the counter claim.
2. The Court also noted that the land matter on Suit No.ICC/5OL/97 was in conclusion (sic) in this Court and has also not been disposed of in the High Court of Justice, Enugu.
3. If the counter claim is allowed to stand it means that the peace and justice which both parties are seeking for in respect of the disputed land areas cannot be achieved. This Hon. Court will be doing disservice to the two parties (communities) by so doing. Since all what is contained in the counter claim could still be stated during evidence in chief of the Defendants and their witnesses. The counter claim is hereby set aside. The Defendants will therefore take their pleas and the Plaintiffs will open their case on the original substantive Suit No. ICC/8L/98 – – “.
The Appellants pleaded not liable to the Respondents’ claim, and they opened their case through their spokesman, the 5th Respondent, and later called four other witnesses. The Appellants presented their case through their spokesman, the 1st Appellant, and called one other witness.
The Customary Court later visited the locus in quo, and by a majority of two against one, delivered their Judgment in favour of the Respondents. One Member delivered a minority Judgment in favour of the Appellants. Dissatisfied, the Appellants appealed to the High Court, Oji River, with a Notice of Appeal containing three Grounds of Appeal, and the said High Court, presided over by Nebo, J., which affirmed the decision of the Customary Court, also held as follows on the issue of the counter claim –
“It is clear – – that the trial Customary Court did not know how to handle the said counter claim. It took time to study it and thereafter decided that the Defendants could present their case when they are presenting their defence. They set aside the counter claim. There is no doubt that this procedure is wrong in law. However, it is settled that in dealing with proceedings from Native or Customary Courts, appellate Courts must not be unduly strict with regards to matter of procedure and undue technicality – – – Assuming the setting aside of their counter claim affected the way the Defendants presented their case, could it be said to have occasioned a miscarriage of justice – –
There is also no doubt that the trial Court afforded each side an opportunity to establish ownership of the land in dispute. However, assuming that the land being claimed by the Defendants in their counter claim is different from the land being claimed by the Plaintiffs, the Defendants still have the opportunity to have the counter claim heard since it was set aside without hearing”.
Aggrieved once more, the Appellants further appealed to this Court with a Notice of Court containing five Grounds of Appeal. Briefs of arguments were duly filed and exchanged, and in the Appellants’ brief prepared by Chief (Mrs.) A. J. Offiah (SAN), the following issues were formulated –
1. Whether the High Court was right in holding that the striking out of the Appellants’ Counter claim without the hearing was a mere technicality in procedure and whether the non-hearing of their counter claim occasioned a miscarriage of justice to the Appellants.
2. Whether the High Court was right when it held that failure to serve some of the Appellants on record with the originating processes did not divest the trial Court of jurisdiction in the case.
3. Whether the High Court was right in holding that the Respondents have proved their case on a balance of probabilities.
The Appellants’ Issue 1 raises a two-in-one question that is avoidable, however, the Respondents adopted the Appellants’ Issues in its entirety, and I will do same in dealing with this appeal. Issue 1 relates to their counter claim that was disposed of by the Customary Court suo motu.
It is the Appellants contention that it amounted to a miscarriage of justice and against the principle of natural justice for the Customary Court to deliver Judgment in respect of the said counter claim and set it aside suo moto before the hearing of evidence in the case commenced.
They submitted that there was no evidence on which the setting aside could be based, and no issue of inherent defect that could warrant the summary setting aside of the Counter claim; that the Customary Court apparently felt that they could achieve the purpose of their claim by presenting a defence to the Respondents’ claim, which cannot be right; and that it is trite law that a counter claim is an independent suit, and in considering such a case, a Court must be seen to be conscious of the fact that there are two claims and two claimants before it and the final Judgment of the Court must reflect a consideration of the cases of the respective parties and a decision of their respective claims, citing Kwajaffa v. B.O.N Ltd. (1999) 1 NWLR (Pt 557) 423 at 433 and Okonkwo v. C.C.B. Nigeria Plc. (2003) 1 NWLR (Pt.522) 347 at 403.
They further submitted that the Customary Court did not mention the Counter claim when it was evaluating or considering the evidence; that there is nothing in the majority Judgment to show that it recollected or revisited the counter claim or considered it at all after receiving evidence in the case; that as soon as it set aside the counter claim, before hearing evidence, it finished with it conclusively, which occasioned a serious miscarriage of justice as they were deprived of the opportunity and right of having their claim considered and determined based on evidence before the Court; and that this was a clear case of total non-hearing and at the least, a case of lack of fair hearing, and a miscarriage of justice, which has the effect of vitiating the entire Judgment of the Court, citing Ojo v. Anibire (2004) 10 NWLR (Pt. 882) 571 at 583 and State v. Ojie (2000) 11 NWLR (Pt. 678) 434.
It was further argued that the Appellate High Court categorically found that what the trial customary Court did was clearly wrong in law, but decided to overlook it as a mere technicality, which is not the law, citing Iroko v. Uka (2002) 14 NWLR (Pt.786) 195 at 238 that the entire decision of the trial Customary Court ought to have been set aside by the Appellate High Court for negating the principle of fair hearing in view of the fact that their counter claim is an independent Suit and ought to have been treated as such, citing Atanze v. Attah (1999) 3 NWLR (Pt. 596) 647, Agbara v. Amara (1995) 7 NWLR (Pt.410) 712; that the appellate High Court’s decision that they “still have the opportunity to leave the Counter claim heard since it was set aside without hearing was a wrong decision in law as they cannot resurrect and pursue the counter claim after a decision had been given, and the chances are that they may be confronted with a plea of res judicata; and that the trial Customary Court would surely have arrived at a different decision if it had considered their Counter Claim. Thus, this Court was urged to set aside the decision.
To the Respondents, however, the Appellants’ position “is wrong in law”, citing Gowon v. Ike-Okongwu (2003) FWLR (Pt.147) 1027 SC. which followed an earlier decision of the Supreme Court in Oyegbola v. Esso West African Inc. (1966) 1 All NLR 170. They submitted that it is to be emphasized that the Court being domitis litis in any case before it can rule one way or the other as it did, so it can never make a ruling suo motu without any party making such an application; that the case of Iroko v. Uka (supra) and other authorities cited by the Appellants are not applicable because a procedure sanctioned by the Supreme Court in both Gowon v. Ike-Okongwu (supra) and Oyegbola v. Esso West Africa (supra), cannot be rightly described as a “departure from the rules which permeates all judicial procedure as to make what happened not in the proper sense of the word judicial procedure at all’; that the procedure adopted by the trial Customary Court, and affirmed by the appellate High Court “is known to law, legal and in a proper sense part and parcel of our judicial procedure and process”; and that a counter claim is supposed to be an answer to the original claim, and if the original suit and the counter-claim arose out of the same set of facts or transactions, it will be desirable and indeed convenient to try them together, citing Gowon v. Ike-Okongwu (supra) where the Supreme Court observed that the issues for resolution in both the original suit and the counter-claim are not the same and were are not inter-related, and therefore held as follows –
“In the circumstances, I hold that the suits cannot be conveniently tried together. This issue disposes of this appeal”.
It is their contention that this is exactly what happened in this case where Suit No.ICC/50L/87 which the Appellants relied upon as being in their favour was found by the Customary Court to be inconclusive, and they also attempted to deceive the Court by claiming that Ana-Nkpulo and Agu-Akwu was a different portion of land from the one in dispute stating that Umuchukwu people were not sure of the land they were claiming.
The Respondents further argued that the said assertions in the counter claim being found to be false by the trial Customary Court, they cannot be conveniently tried together with their original claim without jeopardizing “the peace and justice which both parties are seeking for in respect of the disputed land areas”; and that the striking out of the counter claim never resulted in miscarriage of justice, as the Appellants were exhaustively allowed to lead evidence in proof of their counterclaim but the truth is that they failed to establish their counter-claim.
Furthermore, that the issue of counter-claim was raised and conclusively determined by the Customary Court after due considerations and such issue cannot again be freshly considered and determined, citing Military Administrator, Benue State v. Ulegede (2001) FWLR (PT.78) 1268 that a good conclusion of the Court reached on a wrong reasoning will not be disturbed on appeal on the mere fact of the wrong reason; that it is also a clear case of holding unto a technicality for a party who has argued his case but lost to rely on a technical ground more so when the decision is that of a Customary Court; and that the law is that a trial Court’s decision on facts is presumed to be correct, therefore, an appellant Court ought not to substitute its own views of facts for those of the trial Court, citing Kolie v. Onyejuluwa (2001) FWLR (Pt.41) 1826. They further submitted that due latitude must be given to the Judgment of a Customary Court presided over by lay men, not lawyers, and such a Judgment must be read as a whole and not in bits; that in as much as the Judgment tallies with common sense and reason, the style of writing same is not of utmost importance, citing Okolie v. Onyejuluwa (supra); and that the striking out of the counter claim is in accord with our judicial precedent having regard to the Supreme Court decisions in Gowon v. Ike Okongwu (supra) and Onyegbola v. Esso West Africa Inc. (supra). This Court was urged to hold that the Appellants did not suffer any miscarriage of justice.
At every turn, the Respondents referred us to the Supreme Court decisions in Gowon v. Ike Okongwu (supra) and Onyegbola v. Esso West Africa Inc. (supra), to buttress their every submission. But every case turns on its own facts and circumstances, and as far as I can tell, the situation in the case of Gowon v. Ike-Okongwu (supra) is not in any way similar or comparable to the facts and circumstances in this case. In the case of Gowon v. Ike-Okongwu (supra), see also (2003) 6 NWLR (Pt.815) 38 SC, the 1st Respondent filed a paternity suit against the Appellant, who later sought to amend his statement of defence by including a counter-claim on the subject of an alleged libelous article in two publications of a magazine called “HINTS – True Life Romances” that was made after the parties had filed their pleadings in the original action.
The trial Court dismissed the Motion, and struck out both the Amended Statement of Defence and the proposed counter-claim. The Appellant appealed against the Ruling to this Court, which dismissed the appeal. He further appealed to the Supreme Court, which held as follows –
“In substance a counter-claim is a cross-action and not merely a defence to the Plaintiff’s claim. It is an independent action and not part of the original action though for convenience the two are tried together. Can a Defendant, raise a counter-claim even though the cause of action accrued to the Defendant subsequently to the issue of the writ in the original action? Just as the Plaintiff cannot be allowed to bring into his case an entirely fresh cause of action which arose after the action had been started, a Defendant will not be allowed to raise by way of an amendment to the Statement of Defence a counter-claim in respect of a cause of action that arose subsequent to the issue of the writ – – To bring in such a fresh cause of action, does not – constitute an amendment. It means what it is, that is, starting a new cause of action, and one which did not accrue, and therefore could not have been sued upon, at the time the action was brought. – – A counter-claim is a separate action. The Defendant in a counter-claim assumes the position of a Plaintiff and the Plaintiff in the original action assumes the position of a Defendant. Simply put the parties in the original action swap places in the counter-claim. The Defendant may, instead of suing separately insert his claim into the Plaintiffs Suit under the label of counter-claim if it is of a kind, which by law he is entitled to raise and have disposed of in the Plaintiffs action. If the original suit and the counter-claim arose out of the same set of facts or transactions, it would be desirable and indeed convenient to hear them together – see Oyegbola v. Esso West Africa Inc. (1966) 1 All NLR 170′.
In the case of Onyegbola v. Esso West Africa Inc. (supra), which the Supreme Court relied on in Gowon v. Ike-Okongwu (supra), and which the Respondents strenuously argue supports their position on this issue, the Respondent sued the Appellant, who was one of its independent dealers, in the High Court, Ikeja, and he later sued the Respondent in the High Court, Lagos, while the action at Ikeja was still pending. Two of his claims were for (a) the security he had deposited, and (b) interest on it, and the trial Court at Lagos dismissed the claims. On appeal he argued that since the Respondent admitted certain figures but had not pleaded a counter-claim, he was entitled to Judgment. The Supreme Court held –
“A counter-claim is – – a weapon which enables a Defendant to enforce a claim against the Plaintiff as effectually as in an independent action. Instead of suing separately, the Defendant may insert in his claim into the Plaintiff suit under the label of counter-claim if it is of a kind which by law he is entitled to raise and have disposed of in the Plaintiffs suit. The company’s suits at Ikeja and Plaintiff’s suit in Lagos arose out of the same set of transactions and it was eminently desirable to hear them all together – – The Plaintiff here, instead of counterclaiming in the Ikeja suits, which had been brought first, created an awkward situation by suing the company in Lagos. If the company were to counter-claim in his suit, they would have laid themselves open to then objection that as the company had made their claims in independent suits at Ikeja, they could not make them again in Lagos under the guise of a counterclaim. The Plaintiff is seeking to achieve a tactical advantage, but there are cogent reasons against giving him Judgment on his claims – – “.
Obviously, far from supporting the Respondents’ position on the issue, the decision of the Supreme Court in Onyegbola v. Esso West Africa Inc. (supra), is a clear vindication of the Appellants’ standpoint on the issue in this case where the Appellants claimed ownership of a land in dispute, and the Respondents counter-claimed that they are the actual owners. In the case of Gowon v. Ike-Okongwu (supra), it was based on the fact that the “fulcrum of the original action is the paternity of the 2nd Plaintiff”, etc., while “the theme of the counter-claim was a libel action brought by the Defendant”, that the Supreme Court went on to conclude as follows –
“- – The issues in the two actions are not the same; they are not inter-related. In the second place, the parties are not the same. In the circumstances, I hold that the suits cannot be conveniently tried together”.
In this case, the Respondents claimed ownership of the land in dispute situated at Agbalidi Inyi, however, the Appellants counter-claimed that –
1. The Plaintiffs through their ancestors are from time immemorial natives of Akwu Village and are the bonafide owners in possession from time immemorial of two pieces or parcels of land known as and called ANA NKPULO and Agu Akwu all situate at Akwu Village, Inyi Town – – .
2. Their claim as Plaintiffs in their claim in paragraph 4 gave the following four names.- (i) Ugbo (ii) Ngene-Ishi (iii) Omerenwanuta Area and (iv) Okpu Mamu and others as the land in dispute.
3. In first Suit NO.ICC/5OL/87 which Umuchukwu Family plaintiffs finished stating their case and all their witnesses concluded their evidences. They never made mention of any name of the land in dispute, but the whole land which Akwu Village inherited from time immemorial from their ancestors. This first Suit was transferred to Enugu High Court 1 from Inyi customary court, on their request, and the new Suit No.E/426/88 which is still pending at Enugu High Court 1. It was during the defence that the Defendants made mention of the names of all land involved. The defendants had not finished up his (sic) defence before the case was transferred. In another Suit No.E/458/89 filed at the High Court Enugu by the Plaintiffs Umuchukwu Family which Suit was struck out on 4th February 1998, paragraph 1 of their claim at line 6 called the same lands in dispute OKPULO OGBA/AGBADA Land showing, that the Umuchukwu Family Plaintiffs are not sure what lands they are claiming.
4. Cause of Action:- Trespass to the said two pieces/parcels of lands of the Plaintiffs by the Defendant who incessantly forcibly without the consent and/or authority of the Plaintiffs their agents or privies broke and enters the said lands cut down economic trees and cart them away, and forcibly clear and cultivate parts of the said land (sic).
5. The Plaintiffs (Counter-Claimants) Survey Plan will be filed later in this Suit.
6. Wherefore the Defendants in this Suit No.ICC/18/98 counter-claims as Plaintiffs jointly and severally against the defendants their servants, agents and privies as follows –
(a) A Declaration of the title to the said pieces or parcels of land Ana-Nkpulo and Agu-Akwu situate at Akwu village, Inyi in Oji River LGA –
(b) Perpetual injunction jointly and severally against the Defendants, their servants, agents and privies from further trespass into the said land whose annual value is N100,00 (One hundred naira); and –
(c) N2,000.00 (Two Thousand Naira) for general damages.
Applying the principles enunciated in Gowon v. Ike Okongwu (supra) and Onyegbola v. Esso West Africa Inc. (supra), the Appellants did the right thing when they inserted a counter-claim in the Respondents’ Suit rather than file a separate action to claim ownership of the disputed land. The issues in both actions are certainly the same; they are inter-related; and what is of paramount importance, the parties are also the same. So, it was definitely “desirable and indeed convenient to try them together”.
But the trial Customary Court did not think so, and set aside their counter-claim. In affirming its decision, the Appellate High Court held that the procedure employed by the Customary Court is “wrong in law”, but went on to justify same on the ground that it was a mere technicality that had not occasioned a miscarriage of justice against the Appellants. The word “technical” means “immaterial, not affecting substantial rights, without substance” see Black’s Law Dictionary. 6th Ed. See also Atanda v. Ajana (1989) 3 NWLR (Pt.111) 511 SC wherein it was added –
“I believe it is in this sense that the word “technicality” is used in connection with our rules of practice and procedure. It was in this sense that Martin, B., used the word in Chesterfield v. Midland Silkstone Colliery Co. Ltd. v. Hawkins (1865) 3 H & C.677 when he stated at p. 691 –
“A technical rule is one which is established by authority and precedent, which does not depend upon reasoning and argument, but is a fixed established rule to be acted upon and only to be discussed as regards application”.
Looked upon from this point of view, it appears to me that all our rules of procedure can be classified into two. Some are purely technical in that they describe certain procedural steps to be taken, mainly for the convenience of the parties in litigation and the Court. But others go to ensure that justice is done to the parties – -“. – Per Nnaemeka-Agu, JSC (Highlights mine)
The term “miscarriage of justice” is defined as “a grossly unfair outcome in a judicial proceeding” – see Black’s Law Dictionary. 9th Ed. See also Ojo v. Anibire (supra), where the Supreme Court defined it as follows-
“Miscarriage of Justice simply means a failure of Justice. What will constitute miscarriage of justice varies from case to case depending on the facts and circumstances. But to reach the conclusion that such a miscarriage occurred; it does not require a finding that a different result necessarily would have been reached in the proceedings to be affected by the miscarriage. It is enough if what has happened is not justice according to law; (Highlight mine).
In this case, contrary to what the Respondents would have us believe, the Customary Court suo motu set aside the Appellants’ counter-claim without a word being heard from them, not even a whimper. I set out the record of its proceedings earlier, and it is written there in black and white. On the 15th of May 1998, “the Court addressed both parties and promised to look into the counter claim and pronounce decision on the next adjournment”, which is exactly what it did – “pronounce decision”.
The opening paragraph of the Court’s record of 21st May 1998 reads –
“Both parties present.
COUNTER CLAIM – Suit No. ICC/8L/98 Judgment
The counter claim submitted to this Hon. Court by the Defendant on the 13th of May 1998 on original Suit No.ICC/8L/98 has been looked into by this Court.
The Court promised to deliver Judgment on that matter during the next adjournment. The Court therefore deposed as follows – – -“.
It proceeded to make various findings/observations, and concluded that –
If the counter claim is allowed to stand it means that the peace and justice which both parties are seeking for in respect of the disputed land areas cannot be achieved. This Hon. Court will be doing disservice to the two parties (communities) by so doing. Since all what is contained in the counter claim could still be stated during evidence in chief of the Defendants and their witnesses, the counter claim is hereby set aside”. (Highlights mine)
The Supreme Court clearly stated in Gowon v. Ike Okongwu (supra) that – “the Defendant in a counter-claim assumes the position of a Plaintiff and the Plaintiff in the original action assumes the position of a Defendant. Simply put the parties in the original action swap places in the counter-claim”.Since the Appellants are in the position of Plaintiffs in their counter-claim, is the striking out of the counter-claim just like that without hearing evidence, a mere technicality or a miscarriage of justice? The Appellants say it amounts to a miscarriage of justice since they did not have the opportunity to canvass it, and so were denied a fair hearing. The Respondents say that it as a mere technicality since “due latitude must be given to the Judgment of Customary or Native Courts presided over by lay men, not lawyers”, which is the decision of the lower Court.
I say that the weight of the law, and the authorities on the subject, are in favour of the Appellants. Every Court, be it a Native/Customary Court, a Magistrate Court, a High Court, an appellate Court or any other body performing the functions of a Court, has a duty to give parties the opportunity of being heard before it takes a decision on a case before it, A Court is a place where justice is administered, and it is a principle of natural justice that a decision can only be reached by any Court after a party that will be affected by it has been given the opportunity to be heard – see Fadlallah v. NAMB. Ltd (2007) ALL FWLR (Pt.385) 530.
A counter-claim is a separate action demanding the same respect as the original action, and the fact that it is before a Customary Court does not mean that the same constitutional right to a fair hearing that an original claimant is entitled to, should be denied to the counter-claimant. Setting aside the Appellants’ counter-claim without hearing from them is not a technicality, it is an outright miscarriage of justice – see Kotoye v. CBN (1989) 1 NWLR (pt.98) 419 SC, where the Supreme Court held –
“- – The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice had been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing. Once an Appellate Court comes to the conclusion that a party was entitled to be heard before a decision was reached but was not given the opportunity of a fair hearing, the order or Judgment thus entered must be set aside. This is because such order is against the rule of fair hearing, one of the twin pillars of natural Justice which is expressed by the maxim: audi alteram partem.”(Highlights mine)
The Appellants were not heard before their counter-claim was set aside with the wave of a hand, which is a clear breach of their right to a fair hearing, and the only option open to this Court is to allow the appeal – see Orugbo v. NNA (1997) 8 NWLR (pt.516) 255, wherein it was held –
Once it is duly established that the right to fair hearing has been breached in a judicial proceedings, its breach vitiates the entire proceedings. Therefore when the appellate Court finds that the right of fair hearing is breached, it shall have no alternative but to allow the appeal.
In the circumstances, it will not be necessary to address other issues. The bottom line is that the appeal succeeds, and it is hereby allowed. The Judgment of the lower Court delivered on the 19th of January 2005, is set aside, and in its place, I enter an order remitting the suit to the Customary Court for hearing de novo. I make no order as to costs.
ABDU ABOKI, J.C.A.: I have heard the privilege of reading in advance the judgment just delivered by my learned brother Amina Adamu Augie, JCA.
I am in agreement with the findings and conclusion made therein. I will also like to make a small contribution.
This matter started at the Inyi Customary Court in Oji River Local Government Area of Enugu State. The Plaintiff had claim ownership of land situate at Agbalida Inyi.
The Appellants who were from Akwu village in Inyi town in the same Oji River L.G.A., counter – claim that they are the bonafide owners.
The Customary Court delivered its judgment in favour of the Appellants. The counter – claim was disposed of by the Customary Court suo moto.
Dissatisfied, the Appellants appealed to the High Court of Enugu State sitting at Oji River, Nebo J. affirmed the decision of the Customary Court and held that the procedure employed by the Customary Court is ‘wrong in law’ but went ahead to justify same on the ground that it is a mere technicality.
Aggrieved by the decision of the Oji River High Court sitting in its appellate jurisdiction, the Appellants further appealed to this court.
The Appellants contended that it amounted to a miscarriage of justice and against the principles of natural justice for the Customary Court to deliver judgment in respect of the said counter – claim dismissing it without taking evidence on the matter.
It is trite law that a counter – claim is an independent suit. Where there is a main claim and a counter – claim, there is said to be two claims and two claimants before the court and the opinion of the trial court must reflect a consideration of the two cases and a decision on each of the claims.
In Customary Courts, the application of the rules of practice and procedure in trials is relaxed and pleadings in the nature of what obtains in the Magistrate Court and High Courts are unknown.
Technical rules of procedure which governed trial of action in the Magistrate and other courts of record are not strictly applied in Customary Courts. See Ethunmwunse v. Ehamoe (2003) 13 NWLR Pt.837 page 353.
The main reason for this is the need to make the administration of justice in the Customary Courts, being grassroot court, available to the common man in a simple, cheap and uncomplicated form. See Dunu v Onwumelu (2001) FWLR pt.89 page 1194.
In the instant case, this court is concern with the examination of the totality of the proceedings to see whether substantial justice was attained and not concerned with technical justice. See Opawole v. Tunbi (2003) 11 NWLR pt.884 page 290.
Cyprain Onwuama v. Louis Ezekoli (2002) FWRL pt.100 page 1213.
In the instant case, the trial customary court at Oji River did not hear or take the evidence of the appellant before dismissing their counter – claim.
This is fundamental breach of the rules of natural justice and has occasioned a miscarriage of justice.
The decision of the trial customary court Oji River is also in violation of the provisions of the Constitution of the Federal Republic of Nigeria 1999 which guarantees the right to a fair hearing.
It is for this reason that I will set aside both decision of the customary court Oji River and that of the High Court Oji River which confirmed the decision of the trial customary court.
For the fuller reasons given in the lead decision of my learned brother Amina Adamu Augie, I also allow this appeal. I also abide by the consequential in the lead decision.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have read before now the judgment just delivered by my learned brother, AMINA ADAMU AUGIE JCA, and I entirely agree with the reasoning and conclusion therein. S.36(1) of the constitution of the Federal Republic of Nigeria 1999 provides guarantee for the right to fair hearing to all persons. The issue here is, was the appellants right to fair hearing of their counter claim which by all standard is an independent action of its own compromised in the proceedings before the Inyi customary court?
The Supreme court in OTAKPO VS SUNMONU (1987) 2 NWLR (PT.58) 587 at 605 per OBASEKI JSC analysed the concept of fair hearing as follows:-
“A hearing can only be fair when all parties to the dispute are given a hearing or an opportunity of hearing. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as a fair hearing.”
The absence of fair hearing will no doubt herald the emasculation of the principles of natural justice and without the guiding principles of natural justice, the concept of the Rule of law cannot be established in the society. See NDUKAUBA VS KALOMO (2005) 14 NWLR (PT 915) 411.
In the instant case it is very glaring that the appellants’ counter claim was not given the least consideration by the trial customary court despite the fact that it stands on its own as an independent suit. See OBASI BROTHERS MERCHANT CO. LTD VS MERCHANT BANK OF AFRICA SECURITIES LTD. (2005) ALL FWLR (PT 261) 216 S.C., NAL MERCHANT BANK PLC VS ONU (2001) FWLR (PT 33) 245, EFFIOM VS IRONBAR (2000) 3 NWLR (Pt.650) 344, GENERAL OIL LIMITED VS FSB INTERNATIONAL BANK PLC (2005) ALL FWLR (PT.277) 1007.
The lower court agreed that this procedure of not hearing the appellants’ counter claim by the customary court was wrong in law yet held that the anomaly did not occasion miscarriage of justice. With all due respect, this view cannot stand having regard to the constitutionally guaranteed right to fair hearing available to the appellants. A breach of such right renders the whole proceedings a nullity.
In the circumstance, I too allow this appeal and I also endorse all the consequential orders made in the lead judgment inclusive of the order on costs.
Appearances
Chief (Mrs.) A. J. Offiah (SAN) with Godfrey Ekeh, Esq., and Mrs. Ndidi OnwusiFor Appellant
AND
R. C. Madu, Esq.For Respondent
