(2012)LCN/5595(CA)B. E. ORISAKWE & SONS LTD. & ANOR V. AFRIBANK PLC.
In The Court of Appeal of Nigeria
On Friday, the 3rd day of August, 2012
CA/J/11/2005
RATIO
“Counsel appearing before any court owes a bounden duty to be diligent, treat the court with respect, honesty and mutual courtesy. Above all, to assist the court in its avowed bid to dispense justice to all manner of people without fear or favour, ill – will or affection. This much and more should be the focused and targeted goals of both the counsel and the court.” Per OREDOLA, J.C.A.
“The concept of fair hearing does not enure for the benefit of the party who invokes it alone. The essence of fair hearing transcends personal gratification of one of the parties. Thus, fair hearing is a hearing which is fair and just to both parties, regardless of whether they are the plaintiff or defendant. See Okeke v. Oru (1993) 2 NWLR (Pt. 277) 622/635. In order for a party who complains of breach of his right to fair hearing to be taken seriously, he must establish that he came to court, the seat and epic centre of justice and that he was unjustifiably driven away therefrom, disentitled, deprived and impeded from doing the needful towards attainment of justice. That his guaranteed access to court was effectively blocked to his detriment. See Bendel Insurance & Co. Ltd v. Edokpolor & Ltd. (1989) 4 NWLR (pt. 118) 725/736; Ekrebe v. Efeizomor II (1993) 7 NWLR (Pt. 307) 588.” Per OREDOLA, J.C.A.
“The law is settled, that issues formulated must arise, flow and or stem from the grounds of appeal in respect thereof which challenged the decision appealed against. See Compt. Comm. & Industry v. O. G. S. W. C. (2002) 9 NWLR (Pt.773) 629/644.” Per OREDOLA, J.C.A.
“The importance of record of proceedings/appeal in the appellate system cannot be overemphasized or underestimated. Appeals are determinable on the basis of the record of appeal placed before an appellate court. This is more so, because without it, the hearing of appeals will be a herculean task. It is thus settled, that after due compilation, authentication/certification and transmission of the record of appeal to the appellate court, unless such a record of appeal has been formally challenged and the contrary is established, then it is binding on the parties, their respective counsel and the appellate court. The appellate court is duty bound to peruse the record of appeal in its exact context and interprete it accordingly, without reading into the record what is not contained therein and will also not read out of the record what is contained therein. See Garuba v. Omokhodion (2011) 14 NWLR (Pt. 1269) 145/180; Nwora v. Nwabueze (2011) 17 NWLR (Pt. 1277) 699; Oguntayo v. Adelaja (2009) 15 NWLR (Pt. 1163) 150.” Per OREDOLA, J.C.A.
“Again, it is firmly established that the record of proceedings/appeal, bind both the parties and the court. See Sommer v. F.H.A. (1992) 1 NWLR (Pt. 219) 548; Orugbo & Anor v. Bulari Una & Ors. (2002) 16 NWLR (Pt. 792) 175.” Per OREDOLA, J.C.A.
JUSTICES
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
Between
1. B. E. ORISAKWE & SONS LTD.
2. B. E. ORISAKWE Appellant(s)
AND
AFRIBANK PLC. Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A. (Delivering the Leading Judgment): This is an interlocutory appeal against the ruling of L. C. Dakyen J. (as he then was) of the Plateau State High Court, delivered on 19th April, 2004 in suit No. PLD/J259/88 wherein some of the reliefs sought by the defendants/appellants were refused/dismissed.
It is to be noted from the outset, that due to the antecedents, twists and turns and nuances in this appeal, I do intend to give an extensive rehash and chronological sequence of events, which unfolded at the trial court and gave rise to the instant appeal. The facts of this appeal gleaned and garnered from the record of appeal are to the following effects. On 14th May, 1998 the plaintiff/respondent herein commenced action against the defendants/appellants under the undefended list procedure, claiming the following reliefs:
“The plaintiffs claim against the defendants jointly and severally is for:-
1. The sum of N9, 706,049.52 (Nine Million Seven hundred and six thousand, and forty nine Naira fifty two kobo) being personal loan/overdraft the plaintiff granted to the defendants at the defendants’ request at No. 23 Murtala Mohammed Way, Jos which the defendants failed to pay despite repeated demands.
2. 21% interest on the said sum of N9, 706,049.52 from 1/5/98 until judgment.
3. 10% interest from the date of judgment until final liquidation.”
The said writ of summons was filed together with an accompanying affidavit of 18 paragraphs with various documents annexed thereto. It was sworn to on 14th May, 1998 by one Murtala Idrisou, who described himself as “the officer in charge of credit department in the plaintiff’s office.” The said affidavit disclosed the circumstances which surrounded and warranted the plaintiff/respondent’s claim. Upon being served with the said writ, the defendants/appellants filed their notice of intention to defend, dated 2nd June, 1998 with a notification therein, “that the defendants herein intend to defend this action in terms of the preliminary objection raised in the schedule hereto and the accompanying affidavit in support of the notice.” The said 17 paragraphs affidavit was belatedly sworn to on 20th June, 1998 by one Collins Orisakwe as the deponent. Thereafter, the plaintiff/respondent on 29th July 1998 filed a further and better affidavit with various documents annexed thereto as exhibits.
On 14th July, 1998 when the matter came up for hearing before the lower court, its record of proceedings showed that the 2nd defendant/respondent herein was present and that the learned counsel for the defendants/appellants, H. N. Ugwuala Esq. who held the brief of L. E. Anyia Esq. applied that the matter be stood down. The learned counsel for the plaintiff/respondent informed the trial court that he was served with the defendants/respondents’ notice of intention to defend, “about five minutes ago.” However, he did not oppose the application. It was however not convenient for the trial court and the matter was adjourned to 29th July, 1998 for hearing.
On 4th November, 1998 when the matter came up again, the trial court’s record of proceedings showed that while, the 1st defendant/appellant was represented by one E.G. Orisakwe, “the 2nd defendant is already deceased.” The learned trial judge heard arguments in support and opposition with regard to the objection by the defendants/appellants and the application by the learned counsel for the plaintiff/respondent that judgment be entered as claimed against the defendants/appellants. The matter was adjourned to 4th December, 1998 for ruling thereon.
For reasons not stated on the record, the matter did not come up on the adjourned date, that is, 4th December, 1998. It came up on 14th December, 1998 and the ruling was not delivered on the said date because it was not ready. However, both the defendants/appellants and their counsel were absent in court. The matter was then further adjourned to 23rd March, 1999. On that day, both the learned counsel for the parties were present and the learned trial judge delivered his ruling, wherein he inter alia ruled that the affidavit in support of the notice of intention to defend, raised triable issues which include the death of the 2nd appellant herein. He then granted leave to the defendants/appellants to defend the suit. It was further ordered that the suit be transferred to the general cause list. (See Pp. 79 and 80 of the record of appeal.)
Thereafter, the learned counsel for the defendants/appellants asked for 30 days within which to file their statement of defence. The matter was then adjourned to 25th May, 1999. On the said date, the lower court’s record showed the presence of the parties and their respective counsel and also that, “the 2nd defendant is present and represents the 1st defendant.” on the said date, the learned counsel for the plaintiff/respondent informed the trial court that the matter is for hearing and they are ready to prove their case. He added that they have filed and served their statement of claim on the defendants/appellants on 31st, March, 1999 and that they are yet to file their statement of defence. Truly, the learned counsel for the defendants/appellants admitted that they have not filed their statement of defence. The reason which he gave for the delay was, “due to the fact that the 2nd defendant was bereaved, he travelled since 27/4/99 and just came back yesterday.” Learned counsel then applied orally, “for extension of time within which to file our statement of defence out of time.” The trial court granted the application in the absence of objection from plaintiff/respondent’s counsel. Fourteen days extension of time was thus given to the defendants/appellants with effect from 25th May, 1999 within which to file their statement of defence.
The matter though adjourned to 30th June, 1999 came up on 26th July, 1999. It was further adjourned to 6th October, 1999 for hearing. On the said next adjournment date, the matter was further adjourned to 19th November, 1999 and thereafter to 7th February, 2000. On the said date, viz; 7th February, 2000 even though the learned counsel for the plaintiff/respondent was ready to proceed with the hearing, an adjournment was granted and the matter was adjourned to 4th April, 2000. Again, on the stated date, the learned counsel for the plaintiff/respondent was ready to proceed and call his sole witness, but the learned counsel for the defendants/appellants applied for an adjournment, on the ground that the representative of the 1st defendant/appellant took his mother’s corpse home for burial. The matter was then adjourned to 25th May, 2000 for hearing.
Similarly, on 25th May, 2000 the learned counsel for the plaintiff/respondent was ready with his “only witness.” The learned counsel for the defendants/appellants informed the court that, “the defendant wrote to us that he was involved in an accident with his entire family as he was travelling”. The matter was further adjourned to 4th June, 2000. The next time the matter came up was on 24th July, 2000. The trial court’s record indicated that the learned counsel for the plaintiff/respondent asked for a date, “because the defendant had approached for settlement.” On 2nd November, 2000 When the matter came up again, both the learned counsel for the parties were present and when no progress has been made on the issue of amicable settlement, the matter was adjourned to 14th December, 2000 for hearing.
On 14th December, 2000 the matter suffered yet another adjournment. The learned counsel for the defendants/appellants wrote a letter to the trial court wherein he asked for an adjournment. The learned counsel for the plaintiff/respondent informed the court of his readiness to proceed as his only witness was present in court. The matter was further adjourned at the instance of the defendants/appellants to 15th March, 2001. Again on the stated date and more or less at the instance of the defendants/appellants, the matter was adjourned to 30th April, 2001 for hearing. On that date, even though the learned counsel for the plaintiff/respondent was ready with his only witness, the matter was further adjourned again at the instance of the learned counsel for the defendants/respondents, to 2nd June, 2001.
The matter however, came up for hearing on 20th June, 2001. It was stood down till 11:00 am, on condition that the learned counsel for the defendants/appellants who was absent, should be duly notified, that the case has been stood down till 11:00 am. Upon resumption, the learned counsel for the plaintiff/respondent informed the trial court, that he went to the Chambers of the learned counsel for the defendants/appellants and informed the Secretary in the presence of three Law Students who were on attachment in the Chambers, that the case has been stood down till 11:00 am. The trial court then observed that on the last adjournment date, viz 30th April, 2001 the learned counsel for the defendants/respondents was present and led two other counsel, Miss Anibogu and Ameh Esq. Hence, in view of their inexcusable absence and the compliance by the learned counsel for the plaintiff/respondent with the court’s directive with regard to the reminder given at the Chambers of the learned counsel for the defendants/appellants, that the matter had been stood down till 11:00 am., the trial court allowed the learned counsel for the plaintiff/respondent to “proceed with the witness in Court.” The witness, Mrs. Irene Onafere was duly taken/led in evidence and various documents were tendered and admitted through her. Learned counsel for the plaintiff/respondent closed its case and the trial court adjourned the matter to 19th July, 2001 for the defence. It also ordered that hearing notice should be served on the defendants/appellants through their counsel.
The next time matter came up was on 14th December, 2001. It was further adjourned to 11th March, 2002. On the said date, the learned counsel for the defendants/appellants informed the trial court, “that since plaintiffs evidence was given in our absence, we have applied for the record of proceedings to enable us study and cross examine the witness thereafter. We therefore need an adjournment.” It was granted. The case was, “adjourned to 9/5/2002 for cross examination of plaintiff’s witness with N1000 cost in favour of plaintiff.”
For reasons not stated on the record, the matter did not come up on the said adjournment date. It came up on 25th June, 2002. On that date, while PW1, Mrs. Irene Onafere was present, the defendants/appellants were absent and not represented by counsel. Learned counsel for the plaintiff/respondent intimated the trial court that the case was filed in 1998 and it has suffered about five adjournments with the defence not showing interest in putting up their defence. Nevertheless, the learned trial judge, adjourned the matter to 11th July, 2002 for cross examination and defence. It was further ordered that fresh hearing notice should be served on them.
Again, on 11th July, 2002 plaintiff’s sole witness, Mrs. Irene Onafere was present, while the defendants/appellants were absent and also not represented by counsel. Later on, in the course of proceedings, learned counsel for the defendants/appellants, L.E. Aniya Esq. appeared, gave some reasons and applied to be discharged from the case. The trial court granted the application for the withdrawal of counsel and ordered that the hearing notice shall be served personally on the defendants/appellants against the next adjournment date, being the 23rd day of July, 2002.
On the said date, that is 23rd July, 2002 Pw1 – Irene Onafere was present. The defendants/appellants were absent and unrepresented. However, they wrote a letter to the trial court, wherein they asked for an adjournment. The trial court adjourned the case to 15th October, 2002 for the last time to enable the defence open their case. On the said date they were absent and not represented by counsel. The case was further adjourned to 20th November, 2002 for the defence of the defendants/appellants.
On 20th November, 2002 the record showed that the 2nd defendant/appellant who also represented the 1st defendant/appellant, pleaded with the trial court for, “the last adjournment”, for their defence. The application was granted and the matter was adjourned to 4th February, 2003 for the defence. Going by the record of appeal, the matter came up on 27th March, 2003 and on the said date, the defendants/appellants were absent and not represented before the trial court. The matter was then adjourned to 14th May, 2003 for the learned counsel for the plaintiff/respondent to address the trial court, if “the defendants do not come and open their defence that day.”
The case came up again on 9th June, 2003. The defendants/appellants were absent and not represented by counsel. On that date, the learned counsel for the plaintiff/respondent then urged the trial court “to order that the defence case be closed.” This according to him is more so, because the defendants were informed as ordered by the trial court and when the court did not sit, “I had to inform the defendants again in writing of today’s date through the 2nd defendant.” The trial court then ordered that the defence of the defendants/appellants, “is hereby closed. This case is adjourned to 18/6/2003 for address or adoption of written address.”
The next time the matter came up was on 31st July, 2003. While the parties were absent, the learned counsel for the plaintiff/respondent was present. The matter was further adjourned to 21st October, 2003. On the said date, both learned counsel for the parties were present. The learned counsel for the defendants/appellants, applied for a date, “to enable us enter our defence.” He added that this will enable them to call their defence witnesses, “who are far and wide.” Thus at the suggestion of the said learned counsel for the defendants/appellants, the learned trial judge adjourned the matter to the suggested dates, viz 28th November, 2003 and 1st December, 2003.
On 28th November, 2003 the trial court’s record showed that the learned counsel for the plaintiff/respondent was present, while the learned counsel for the defendants/appellants was absent. The 2nd defendant, who was present, informed the trial court that, “his counsel is indisposed.” As a result of remonstration/presentation made by the learned counsel for the plaintiff/respondent to the trial court, the matter was stood down till later in the day. However, the trial court ordered that an official of the court should go with the 2nd defendant and plaintiff’s counsel, “to the Chambers of the defence counsel or wherever he is, to remind him that the case was slated to today for the defence to open their case. If he is really indisposed, the official will report back and the court will know what next line of action to take.” The court resumed at 11:00 am., and by then the 2nd defendant failed to turn up. He has disappeared. The learned counsel for the plaintiff/respondent informed the trial court that the 2nd defendant confided in them, that he came straight to court from Abuja without going to his counsel’s house. That they reached the counsel’s house and they were told that he had gone to the Chambers. They headed for the Chambers and were informed that, “he had gone to court, came back, and changed and went to an unknown place.” The learned counsel for the plaintiff/respondent then applied that since the matter was previously adjourned to two separate days that it should be further adjourned to 1st December, 2003. The trial court did exactly this and adjourned to 1st December, 2003 for the defence to open their case.
On the said 1st December, 2003 the record of the trial court showed that the 2nd defendant was present in court. Again, that while the learned counsel for the plaintiff/respondent was present, the learned counsel for the defendants/appellants was absent. He however wrote a letter to the court and asked for an adjournment. The learned counsel for the plaintiff/respondent observed that the content of the letter could not be true, as the said counsel who claimed that he was away in Abuja was in town. He expressed his displeasure to the attitude and behaviour of the said counsel, which he described as being unfair to the court and meant to frustrate hearing of the matter. He then reluctantly conceded to, “the last adjournment.” The trial court then adjourned the matter to 19th January, 2004 for defence to open their case.
On 19th January, 2004 the trial court’s record of proceedings showed that both the 2nd defendant and the learned counsel for the defendants/appellants were present in court. The learned counsel for the plaintiff/respondent, who was absent initially, also put up appearance later on in the course of proceeding on the stated day. The learned counsel for the defendants raised the issue of PW1 who, “has been taken in the absence of the defendants and several documents have been tendered.” He stated that he intends, “to apply for a certified true copy of the record of proceedings to know what PW 1 said and to enable us reacts to the proceedings in our defence.” The learned counsel for the plaintiff/respondent opposed the application. He remonstrated that the application, “is made in bad faith” and that he has never come across this tactics to frustrate this matter.” He drew the attention of the trial court to the fact that the learned counsel for the defendants/appellant, “appeared in this matter on the 21/10/2003.” He added that if he had wanted, “any record of proceedings of the court, he would have applied since then to date.” The trial court, yet again adjourned the case to 27th January, 2004 for defence.
On the said adjournment date that is 27th January, 2004 the learned counsel for the defendants/appellants informed the trial court that they are ready to proceed with the matter. He added, that “we have four witnesses in all to call. One is in court and we are ready to take him now.” Thus DW1, Chukwu Emeka Godwin Orisakwe commenced his testimony. Along the line in the course of the proceeding, the learned trial judge expressed his concern/reservation with the manner in which the trial was being handled or conducted. At this point, learned counsel, Benson Igbanoi Esq., a senior member of the Bar, spoke as a friend of the court. He made certain observations, noted the presence in court of Law Students from the Law School and finally urged the trial court to grant an adjournment in the matter, “to allow the counsel another opportunity to put things in order.” The matter was subsequently adjourned, to 6th February, 2004.
On the 6th day of February, 2004 the learned counsel for the parties were present. The learned counsel for the defendants/appellants applied for an adjournment, on the ground that, “the defendant came to our office on Tuesday that he was travelling to the East and promise to be here today but I have not seen him.” Learned counsel for the plaintiff/respondent opposed the application. He added that he “saw the 2nd defendant in front of Naths Aruibuke’s office at Tafawa Balewa at about 4:30 pm. The application is a plot to frustrate the hearing of this matter, everyday they come with one excuse or the other.” Again, as it was in the past, history repeated itself as the learned trial judge adjourned the matter to 10th February, 2004. He then ordered that failure on the part of the defence to proceed on that day will cause the court to order the defence to close their case.
On 10th February, 2004 both the learned counsel for the parties were present before the trial court. Learned counsel for the defendants/appellants informed the trial court that he had made efforts to contact DW1 without success. He referred to the trial court’s order made to the effect that if they are unable to continue with their defence; that the “defence should be closed.” He then said that, “I therefore leave that to the court.” The learned trial judge ruled thus:
“This court must be seen to respect its order and as such, the case for the defence is hereby closed, since no compelling reasons have been given that will warrant the court varying its order.”
Thereafter, the learned counsel for the plaintiff/respondent applied to adopt the written address which had been previously filed on 11th June, 2003 and served on the 2nd defendant. Learned counsel for the defendants/appellants responded that he has not seen any address, “served on us yet. I ought to address first.” The case was then adjourned to 1st March, 2004 for “the adoption of written address by the defendant’s counsel.”
Yet again, on 1st March, 2004 the trial court’s record of proceedings showed that the 2nd defendant was in court. Both learned counsel for the parties were also present. The learned counsel for the defendants/appellants, now F.O. Shaibu Esq. informed the trial court that, “the 1st defendant is represented by Barrister Chukwu Emeka Orisakwe.” The learned counsel then mentioned that they have a motion which was filed in the morning of 01/03/04, because he was briefed around 2:00 pm. on Friday, 27th February, 2004. Learned counsel for the defendants/appellants added that; “The motion is not intended to delay the hearing of this matter. Neither will I use the legal stool to pull down the justice of the matter.” The learned counsel for the plaintiff/respondent did not oppose the motion on terms. Thereafter, the learned counsel for the defendants/appellants applied and withdrew the second prayer on the motion paper. The learned trial judge then delivered his ruling thereon thus:
“The application to vary this court’s order of 10/2/2004 closing the defendant’s case and to reopen the defendants/applicants defence is granted since there is no objection from the respondent to the application. With regards to prayer 2 which has been withdrawn, the same is hereby struck out. The defendant to pay cost in the sum of N1,000 to the plaintiff.”
The trial court further stated that the case will be given accelerated hearing with regards to the defence. The matter was “adjourned to 9-3-2004 and 11-3-2004 for the defence to open their case on those two days.”
On 9th March, 2004 the 1st defendant/appellant was recorded as having been represented, “by C.E. Orisakwe, a director of the 1st defendant.” Both learned counsel for the parties were also present. Learned counsel for the defendants/appellants informed the trial court that he has filed a motion and that he is, “ready to move the motion subject to the court’s convenience.” Expectedly, the learned counsel for the plaintiff/respondent reminded the trial court that the case was scheduled for two different dates for hearing of the defence. That he was only served with the motion in question at about 5:30 pm. on the previous day. He added that he will however opposed the motion, based on “the facts already before the court.” The motion dated and filed on 4th March, 2004 was duly taken/heard. Both learned counsel for the parties made their respective submissions thereon. The motion on notice which contains four prayers has a 9 paragraph affidavit in support with two exhibits annexed thereto. They are Exhibit A – the death certificate of one B. E. Orisakwe and Exhibit B – the proposed amended statement of defence. The learned counsel for the plaintiff/respondent opposed two of the reliefs sought by the defendants/appellants and stated as previously noted that, he “will rely on points of law and record of this court.” He conceded to the grant of reliefs 1 and 4 on the motion paper. The learned trial judge granted reliefs 1 and 4 as prayed. Leave was accordingly granted to the defendants/appellants to amend their statement of defence with the deeming order. The matter was then adjourned to 29th March, 2004 for, “ruling in respect of the other two reliefs.” The matter came up on 11th March, 2004 and it was further “adjourned to 29/3/2004 for ruling. 30/3/2004 and 31/3/2004 at 1. pm. for defence respectively.” On 30th March, 2004 the matter did not go on. It was further adjourned to 19th April, 2004 for continuation of defence.
On 19th April, 2004 while the learned counsel for the plaintiff/respondent was present, the learned counsel for the defendants/appellants was absent. The learned trial judge delivered his ruling and awarded N1, 000.00 costs to the plaintiff/respondent. The case was then adjourned to 29th April, 2004. In the said ruling of the trial court and with regard to the contentious reliefs, the learned trial judge with regard to the relief which borders on striking out the name of the 2nd defendants/appellant, B.E. Orisakwe from the suit, observed and held as follows:
“From the documents before this Court including the notice of intention to defend the action when it was first filed on the undefended list and the supporting affidavit and the plaintiff’s counter affidavit, the parties had joined issues on the alleged death of the 2nd defendant B.E. Orisakwe and arguments were taken and considered by the Court in its ruling dated 4th of December, 1998.
Since that Ruling still subsist and not having been appealed against. Any attempt to revisit the issue of the death of B.E. Orisakwe as in this case, is an abuse of courts process and the Court will not permit such.
I therefore hold that this arm of relief lacks merit and is hereby dismissed.”
(See P. 124 of the record of appeal)
Furthermore, and with regard to the relief which pertains to the recall of PW1, – Mrs. Irene Onafere for the purpose of cross examination, the learned trial judge also observed and found as follows:
In the same vein, the applicants have applied both orally and formally for the reopen of their defence after it has been closed by court and for the recall of the only witness for the plaintiff for cross examination. As stated by the learned counsel to the Plaintiff on some occasions the applications were granted and the witness was made available, but the defendants neglected and or refused to utilize the opportunity afforded to them. While on some occasions, the plaintiff’s counsel informed the Court that it became impossible to secure the witness again, because he has left the plaintiff’s employment.
Since opportunities have reasonably been given to the defendants to cross examine the plaintiff’s witness and they failed to do so. The assertion that cross examination is their constitutional right does not find place here. There is no Law or authority that a witness must be cross-examined before the court can make use of his or her evidence. The principle in my view is that the court can make use of an un cross-examined evidence, but may only be cautions about the weight to be attached to such evidence, because it has not gone through the creable of the cross examination. (sic)
Now that it has become clear that it is not possible to secure the witness for cross examination by the defendants, that will not half the progress of this case i.e. delay in the defendants continuing with their defence.
This arm of relief therefore in my view lacks merit and the same is hereby dismissed.” (sic)
(See Pp. 124 – 125 of the record of appeal.)
Dissatisfied with the said ruling, the defendants/appellants appealed to this court vide their notice of appeal which was filed on 23rd April, 2004. The record of appeal was transmitted to this Court on 23rd September, 2005. Henceforth in this judgment, the defendants/appellants will be referred to as the appellants while the plaintiff/respondent will be called the respondent. By leave of this Court sought and obtained on 18th October, 2006 the appellants filed an amended notice of appeal. It contained three grounds of appeal which included fresh/additional particulars and thereby substituted the previously filed three ground of appeal.
In accordance with the relevant and applicable rules of this court, the Parties duly filed and exchanged briefs of argument. The appellants’ brief of argument was prepared by F. O. Shaibu Esq. It was filed on 23rd September, 2005.
It was deemed properly filed and served by order of this Court made on 18th January, 2006. Similarly, the respondent’s brief of argument which was prepared by I. E. Asogwa Esq. and filed on 21st June, 2006 was also deemed duly filed and served by order of this court made on 27th June, 2006. Appellants’ reply brief was filed on 7th July, 2006.
The appeal came up for hearing before us on 9th May, 2012. The learned counsel for the appellants, F. O. Shaibu Esq., leading S. A. Abbah Esq. and M. K. Habila Esq. adopted and relied on both the appellants, brief and reply brief. He urged us to allow the appeal, set aside the ruling of the lower court, strike out the name of the 2nd appellant from the suit and order the recall of Pw1, the sole witness for cross examination. On the reverse, I. E. Asogwa Esq., leading Mrs. C. R. Jombo for the respondent also adopted and relied on the respondent’s brief. He urged for a dismissal of the appeal.
In their brief of argument, appellants formulated three issues from the three grounds of appeal as follows:
“i. Did the Ruling of the Lower Court delivered on the 4th December, 1998 determine the issue of the death of the 2nd defendant/appellant?
ii. Is the 2nd defendant a juristic person over whom the Lower Court can exercise jurisdiction?
iii. Was the Lower Court right to have refused the application to recall the plaintiff’s sole witness for Cross Examination?”
On the other hand, the respondent distilled two issues for determination of this appeal. Both issues are:
“(a). Whether from the records and facts before the court, 2nd defendant should have been struck out from the case.
(b). Whether the lower court was right in refusing the application to recall the appellants, witness.”
The law is settled, that issues formulated must arise, flow and or stem from the grounds of appeal in respect thereof which challenged the decision appealed against. See Compt. Comm. & Industry v. O. G. S. W. C. (2002) 9 NWLR (Pt.773) 629/644. I consider the issues formulated by the learned counsel for the respondent as appropriate and adequate for the determination of this appeal.
They did exactly what is expected and will ensure the determination of the real questions in this appeal. Thus, in determining this appeal, I am more inclined to prefer and adopt the two issues identified by the respondent. Both issues are lucid and succinct. I will treat both issues serially. I will proceed with and give considerations to the arguments canvassed by the learned counsel for the parties in support of their respective standpoints.
Let me state, with pains in my heart that this case literally crawled on its belly and in agony through the hallowed sanctuary of the trial court to this appellate court. I have had cause to delve and extensively too, into all the details and underpinnings which afflicted and bedeviled this case. This was deliberately done on my part. It was aimed at giving a graphic account of all that transpired/unfolded at the trial court, thereby engendering a better appreciation and understanding of the real issues at stake in this appeal.
Issue No. 1 as adopted reads: “Whether from the records and facts before the court, 2nd defendant should have been struck out from the case.” The complaint of the appellants under this issue is to the effect that since the trial court’s ruling delivered on 4th December, 1998 did not determine the issue that the 2nd appellant had died on 12th January, 1994 long before the commencement of this suit, that the trial court lacks jurisdiction to entertain any suit against him and his name ought to have been struck out as a non – juristic person therefrom, either at the trial court or at this appellate stage.
Learned appellant’s counsel submitted on this issue, “that there was no ruling of the lower court on the issue of death of the 2nd defendant B. E. Orisakwe.” He added that, “the ruling delivered by the lower court on the 4th December, 1998 was a ruling transferring the case from the undefended list to general cause list and not on the death of the 2nd defendant.” That the said ruling stated, “that the issue of the death of the 2nd defendant was/is a triable issue and it only came for trial before the Lower Court on the 4th day of March, 2004 for the first time.” It was then pointed out that the lower court’s ruling thereon, delivered on 19th April, 2004 gave rise to the instant appeal. Learned appellants, counsel referred to page 89 lines 6 and 7 of the record and contented that the trial court, “was consistently reminded of the death of the 2nd defendant,” without any challenge by the respondent. He added that the reason given by the trial court for its refusal was that there is a subsisting ruling thereon. According to the learned appellants’ counsel, that this was erroneous, as the previous ruling delivered on 4th December, 1989 “is even more positive to the death of the 2nd defendant as that was one of the reasons for transferring the case to the general cause list.”
Again, it was strongly argued by learned counsel for the appellants that the 2nd appellant died on 12th January, 1994 and the death certificate in respect thereof was exhibited to the affidavit in support of the motion to strike out his name from the suit. Additionally, that since the respondent did not join issues with the appellants thereon, it means that the fact of 2nd appellant’s death has been admitted and what is admitted needs no proof. Reference was made to Section 175 of the Evidence Act and the case of Jikantoro v. Dantoro (2004) All FWLR (Pt. 216) 390/410, (2004) 13 NWLR (Pt. 889) 187. It was further submitted that the trial court lacks jurisdiction to entertain any suit against the 2nd appellant.
That he is deceased and no longer a juristic person. He cited and relied on Ezenwosu v. Ngonadi (1998) 3 NWLR (Pt. 81) 163/177. The case of Registered Trustees P.A.W.1. v. Registered Trustees A.P.C.C. (2003) FWLR (Pt. 150) 1795/1815 was also cited with the submission that, any proceedings or adjudication no matter how well conducted by a court without jurisdiction, goes to a nullity.”
On this issue and in response’ the learned counsel for the respondent pointed out that it was in the notice of intention to defend the suit which the appellants filed; “wherein they raised objection urging the court to strike out the name of the 2nd defendant from the suit on the ground that he died on 12th January, 1994.” He stated that the respondent filed its further and better affidavit with series of documentary exhibits which showed, inter alia “that the second defendant wrote letters to the bank on 13th August, 1997, 6th February, 1995, 27th June, 1995, 10th June, 1995 and 3rd June, 1997.” That it was after due hearing thereon, that the learned trial judge in his ruling, refused to strike out the name of the 2nd defendant and ordered that the suit be transferred from the undefended list to the general cause list, where at the whole issues there in would be heard on the merits, inclusive of the one regarding the asserted death of the 2nd appellant as one of the issues to be tried in the matter. It was further pointed out by the learned counsel for the respondent’ that there was no appeal against the said ruling by the appellant and the suit proceeded to hearing. He also made the point, that it was six years thereafter and after the respondent had closed its case, that the appellants brought an application and sought that the name of the 2nd appellant be struck out on the ground that he allegedly died on 12th January, 1994. That this assertion/deposition was based on the strength of a medical certificate, exhibited to the affidavit in support of the said application.
Learned counsel for the respondent also argued that a cursory look into the record of appeal will show that the person who was alleged to have died, was present in court on many occasions and employed’ “one form of delay tactics or the other in the matter.” Furthermore, that the appellants did not challenge the trial court’s record of proceedings. He restated that the respondent placed before the trial court, series of correspondence exchanged between the parties herein and signed by the supposedly deceased 2nd appellant – post 1994.
Finally, it wash his submission made without concession, that even if the trial court made an error in its refusal to strike out the name of the 2nd appellant from the suit, that the said error if any, did not occasion any miscarriage of justice. He cited and relied on Kraus Thompson org. Ltd. v. University of Calabar (2004) 9 NWLR (Pt. 879) 631/654.
It has been a long standing principle of court, pronounced in numerous decided cases, that a court must be cautious in its judgment at an interlocutory stage, not to make pronouncements or observations on the facts which might appear or tend to predetermine or pre-judge the main issue or issues in the proceedings which are yet to be concluded by the court. See Agip (Nig.) Ltd. v. Agip Petroli International & ors. (2010) 1 NMLR 94/130, (2010) 5 NWLR (Pt. 1187) 348. I am duly guided.
On this issue, one question to be asked and answered is: Whether the trial court’s ruling supposedly delivered on 4th December, 1998 determined the issue that the 2nd appellant died on 12th January, 1994 long before the commencement of the suit instituted by the respondent. It is to be noted that the said ruling, though dated 4th December, 1998; it was actually delivered on 23rd March, 1999.
(See Pp. 71 and 72 of the record of appeal.)
The law as established and as stated by the learned counsel for the parties respectively, is to the effect that an action by or against a deceased person is a case which is dead on arrival.
Again, it is firmly established that the record of proceedings/appeal, bind both the parties and the court. See Sommer v. F.H.A. (1992) 1 NWLR (Pt. 219) 548; Orugbo & Anor v. Bulari Una & Ors. (2002) 16 NWLR (Pt. 792) 175.
It is also established that where either a finding, ruling or decision by a trial court on an issue or point has not been challenged on appeal, the effect is that such an unchallenged finding or decision of the trial court is valid and binding on the parties and the appellate court. See Kraus Thompson (supra). So be it with the ruling of the trial court dated 4th December, 1998 and delivered on 23rd March, 1999. It is the law and practice that a finding of fact or decision not appealed against stands admitted, unchallenged and undisputed. See Commerce Assurance Ltd. v. Alli (1992) 3 NWLR (Pt. 232) 710; Olukoga v. Fatunde (1995) 9 – 10 SCNJ 1, (1996) 7 NWLR (Pt. 462) 516.
It is not correct as argued by the learned counsel for the appellants that the respondent did not join issue with them on their assertion that the 2nd appellant died in 1994 and that the fact of his death has been admitted. This is more so, because in reaction to the contention by the learned counsel for the appellants that the trial court was constantly reminded of the death of the 2nd appellant, the learned counsel for the respondent countered with the argument that in view of certain post 1994 correspondence assertedly exchanged between the 2nd appellant and the respondent, coupled with the contents of the trial court’s record, which showed 2nd appellant’s presence in court on several occasions, there is the dire need for the matter to go to full hearing for the truth to be made manifest and factually plain for all to see and know.
The trial court’s ruling or decision dated 4th December, 1998 did not determine the issue of 2nd appellant’s death – one way or the other. As argued by the learned counsel for the respondent, the trial court merely ruled that the issue forms part of the triable issues to be tried at the hearing of the matter. Also, that the issue did not come up for the first time before the trial court on 4th March, 2004. Additionally, that as at that point in time and in the course of taking Arguments for and against the appellants, application, the issue could not have been duly taken, talk less of consideration or determination being given thereon, more so, when the trial court had previously ruled that it forms part of the triable issues in the matter. Hence, with this development, a decision one way or the other, will and must await the hearing proper, where at both parties will be given adequate opportunities to present the irrespective stand points thereon, as the issue is incapable and cannot be readily determined on the basis of conflicting affidavit evidence placed before the trial court by both parties, at that point in time. Thus, the trial court’s ruling dated 4th December, 1998 did not determine, talk less of such determination being positive and conclusive on the issue of 2nd appellant’s death. It is also clear to me, that the case of Ezenwosu (supra) cited and relied upon by the learned counsel for the appellants can be distinguished and thus inapplicable in the given facts and peculiar circumstances of this case.
The importance of record of proceedings/appeal in the appellate system cannot be overemphasized or underestimated. Appeals are determinable on the basis of the record of appeal placed before an appellate court. This is more so, because without it, the hearing of appeals will be a herculean task. It is thus settled, that after due compilation, authentication/certification and transmission of the record of appeal to the appellate court, unless such a record of appeal has been formally challenged and the contrary is established, then it is binding on the parties, their respective counsel and the appellate court. The appellate court is duty bound to peruse the record of appeal in its exact con and interprete it accordingly, without reading into the record what is not contained therein and will also not read out of the record what is contained therein. See Garuba v. Omokhodion (2011) 14 NWLR (Pt. 1269) 145/180; Nwora v. Nwabueze (2011) 17 NWLR (Pt. 1277) 699; Oguntayo v. Adelaja (2009) 15 NWLR (Pt. 1163) 150. In the instant case, neither of the parties has challenged the record of appeal transmitted to this court. I find no merit in the complaints under this issue. Thus, issue number one is accordingly resolved against the appellants.
Issue No. 2 as adopted reads: “Whether the lower Court was right in refusing the application to recall the appellants’ witness.” On this issue, the learned counsel for the appellants submitted, “that the lower Court was wrong to have refused the application for recall of the plaintiff’s sole witness for cross examination by the defendants as the lower Court never made any order foreclosing the right to cross-examination by the defendants of the plaintiff’s sole witness.” He added that, cross – examination constituted part/aspect of hearing in a matter under Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria. It was his further argument, that without an order by the trial court which foreclosed the right of the appellants to cross examines respondent’s sole witness, that the trial court could have imposed what he called, “punitive conditions for the recall of the witness to be met by the defendants.” He added that the lower court did not impose such punitive conditions even for once, talk less of failure on the part of the appellants to fulfill the said punitive conditions as imposed by the trial court. He cited the case of Oforkaja v. Taraba State Govt. (2003) FWLR (pt. 178) 1036/1055 and submitted that “the right to reopen the plaintiff’s case was still there.”
Learned appellants’ counsel further argued that all that would have been required was, “that another Credit Officer of the plaintiff presently working with the plaintiff can be called to testify and be cross – examined since what the other Credit Officer did was done in his capacity as an agent of the plaintiff but not in his personal capacity.” It was also strongly argued, that the build of the defendants’ case is strongly dependent on the cross examination of the plaintiffs sole witness.” That the refusal by the trial court to grant the application to recall the said respondent’s sole witness, amounted to an infringement of “the right to fair hearing of the defendants as entrenched in Section 36 (1) of the constitution.” He cited the cases of Oforkaja (supra) and Dagash v. Bulama (2004) All FWLR (Pt. 212) 1666/1746, (2004) 14 NWLR (Pt. 892) 144 in aid of this submission.
Again, on this second issue, the learned counsel for the respondent in his response, rehashed and detailed all that transpired before the trial court with regard to the issue of recall of respondent’s sole witness for cross examination. He emphasized the fact, that the matter suffered several adjournments at the instance of the appellants and that the said adjournments afforded the appellants with adequate opportunities to cross – examine the respondent’s sole witness and enter into their defence if they were so inclined.
Learned counsel for the respondent equally made the point, that the appellants were randomly changing counsel as a ploy, and all sorts of applications were filed or made orally with the game plan of drawing back the hands of the clock at every single opportunity; all in a deliberate strategy to delay and frustrate hearing of the case. He submitted that in view of the antecedent/background of this case, “the learned trial Judge was right in refusing the defendants’ application to recall the plaintiff’s witness for cross examination after the defendants case has been closed.” He submitted, “that since the plaintiff had closed its case, the defendants opened their case and same was closed, that the defendants cannot thereafter apply for leave to cross examine the plaintiff’s witness.” He relied on the case of Chief Rapheal Onwuka V. Lukuman Owolewa (2001) 7 NWLR (Pt. 713) 695/715 in aid of this submission. It was stated in conclusion that, “the most important thing is for the court to give the defendants reasonable opportunity to cross examine the plaintiffs witness.” He continued and stated that, “from the record before the court, the learned trial Judge gave reasonable opportunity to the defendants to cross – examine the plaintiffs witness but they failed to utilize the opportunity.” We were urged to resolve the second issue in favour of the respondent.
Questions to be asked in this regard include: Why was the only witness for the respondent not cross – examined by the appellants? What was responsible or contributed to this state of affairs? How many times was the said witness brought to court by the respondent for the stated purpose of being cross – examined by the appellants? Thus, the main question under contention with regard to this issue, is whether in the given circumstances and peculiar facts of this case, the ruling appealed against by the appellants could be regarded as having breached and or infringed upon appellants’ right to fair hearing as enshrined in the Constitution.
Basically, the right to fair hearing is a fundamental one, duly guaranteed by section 36 (1) of the 1999 constitution of the Federal Republic of Nigeria. In this vein, any decision which is given without due compliance therewith is a nullity and is liable to be set aside, either by the court that delivered the said decision or by an appellate court. See Bamigboye v. University of Ilorin (1999) 10 NWLR (Pt. 22) 290.
It is significant to note, that the principle of fair hearing is one of concrete substance and not a grandstanding technical rule. Hence, the question is whether or not the party who is entitled to it and who is seriously deserving of being heard before his fate is decided, determined or sealed, had in fact been given ample and adequate opportunity as provided under the relevant applicable procedural rules of court to do so. See Kotoye v. C.B.N. (1989) 1 NWLR (Pt. 98) 419.
In a civil case just as in a criminal case, the invocable rule of fair hearing entails inter alia, that any of the parties is entitled to prosecute or defend the matter either in person or by a legal practitioner of his choice. Put differently, to be represented by a counsel of his choice in the conduct of his case. Fair hearing is not a one – sided knife. It can be likened to a two – edged sword that can cut both ways. Indeed, it is not one way traffic but a dual carriage – way which accommodates traffic going simultaneously in the same direction, in the con of both parties being heard timeously and with attainment of justice as its ultimate destination. Hence, the principle of fair hearing must not be invoked by the court in favour of one of the parties to the detriment or disadvantage of the other party and undeservingly too. It further denotes, that both parties to a case are entitled to be given equal opportunities to present their respective cases, without let or hindrance from the commencement to the conclusion. See Ekpeto v. Wanogho (2004) 18 NWLR (Pt. 905) 394/411. It is however to be noted, that the giving of an opportunity is different from taking it. At times, an opportunity can be given, without it being taken for whatever reason, valid or invalid.
The principle of fair hearing becomes invocable where a party is untowardly shut out and openly denied the opportunity to be heard. It is not applicable in favour of a party who fails to appear and defend an action filed against him. Thus, a party or his counsel who fails to appear in court on a date fixed for hearing which he is aware of and without justifiably excusing his absence, does so at his own peril and would have nobody to blame but himself. In a recent decision of the Supreme Court, Newswatch communications Ltd. v. Atta (2006) 12 NWLR (pt. 993) 144/171 per Tobi, JSC it was observed therein that:
“The principle (fair hearing) is not available to a party who sets a trap in the litigation process against the court and accused the court of assumed wrong doing even when such so-called wrong doing is, as a matter of fact, propelled or instigated by the party, through his counsel.”
Ready recourse to invocation of principle of fair hearing and its application are not automatic. Nowadays, the trend is for litigants to latch onto and harp on breach of right of fair hearing on appeal as if it is a cure it all medication or magic wand that conjures all the wishes of a magician. Fair hearing is not a readymade handy tool to be utilized in an all comers and all purposes scenario. It is a principle grounded in fairness and impartiality which must be based on the particular given facts and peculiar circumstances of a case. Indeed, the same dosage does not and cannot cure all ailments. Thus, it is only the facts of each case that will determine or influence the invocation cum application or otherwise of the principle of fair hearing. The principle or its application pales into insignificance when exposed to the bright lights of the facts of the particular case. See Orugbo v. Una (supra).
Going by the factual situations and antecedents of the instant case, as captured in the record of appeal, it is a disservice to and a disparage of the constitutional provisions regarding the right to fair hearing, for the appellants to assume for a moment that any right thinking person would have considered their complaints and the arguments canvassed thereon by their learned counsel, that the refusal to grant appellants’ application to recall respondent’s sole witness amounted to a denial or an infringement of their right to fair hearing. The reasons for this viewpoint are legion.
The matter before the trial court suffered ceaseless, incessant and endless adjournments at the instance of the appellants. Some of the adjournments were granted with anguish and wringing of hands by the learned trial judge, who was made to bend over backwards in order to accommodate the unending applications for adjournments streaming in from the appellants. What is more, the case of the appellants was ordered closed and reopened all to no avail and without any positive fruitful outcome as the game of chess and brinkmanship embarked upon by the appellants with the calculated strategy to frustrate and outwit the respondent, continued sporadically and unabated. To my mind, the hallowed confines of justice, epitomized by the courts deserves all due respect, coupled with reverence and the best of treatment from all and sundry who are regarded as ministers in its sacred temple.
From the record of appeal, the said respondent’s sole witness appeared or was present in court on at least three occasions; viz 25th June, 2002; 11th July, 2002 and 23rd July, 2002 for the purpose of being cross examined. In the instant case, it cannot be gainsaid the appellants were given more than ample opportunities to cross examine the respondent’s sole witness, but they deliberately and calculatingly avoided, evaded and shied away from doing the expected. For goodness sake, what else do they expect the trial court to do? Wait ad infinitum and at their convenience, pace or pleasure? Definitely no. There must be a limit to the level of disrespect or disdain with which any party would be allowed to treat or display in a court of law. Even though the law is laconically referred to as an ass but assuredly its operators should not be treated as asses – dumb and docile. What happened in the instant case with regard to appellants’ application to recall the respondent’s sole witness for the purpose of cross examination and the refusal by the trial court in respect thereof cannot and should not be considered / regarded as a denial or breach of appellants’ right to fair hearing as enshrined in Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended.
In the instant case, there is unchallenged affidavit evidence placed before the trial court by the respondent that the said sole respondent’s witness had since left the employment of the respondent and her whereabouts are not known to the respondent. Paragraphs 7 and 8 of respondent’s counter affidavit to one of appellants’ motion on notice dated 15th June, 2003 and filed on the same date, which sought to reopen their defence and recall respondent’s witness for the purpose of cross examination, contained/found at page 44 of the record of appeal is reproduced below:
“7. That I am informed by Mrs. Ezike Mary, the credit officer of the plaintiff whom I verily believe as follows:
(a) That the witness who testified for the plaintiff in this case has left the employment of the plaintiff and his whereabouts is not known.
(b) That it will be impossible to recall the witness since the whereabout is not known.”
“8. That the said witness attended the court several times for the cross examination but the defendants failed to cross examine until the case was adjourned for address.”
It is trite and elementary principle of law that a party who fails to file a counter affidavit, reply or further and better affidavit in order to challenge or controvert the depositions in the adverse party’s affidavit is deemed to have accepted the facts deposed in the affidavit in question. It is thus established that unchallenged facts in an affidavit are treated as established before the court. See Rakol Clinic and Maternity Hospital v. Supreme Finance & Investment Co. Ltd. (1999) 7 NWLR (Pt. 612) 613; Comptroller, Nigeria Prison Service v. Adekanye (1990) 10 NWLR (Pt. 623) 400; Ayoola v. Baruwa (1999) 11 NWLR (Pt. 628) 595. It is to be noted that the appellants did not file a reply, response or further and better affidavit to the respondent’s depositions quoted above. Thus, the said depositions remained unchallenged and uncontroverted by the appellants.
The recall of a witness is largely a matter of practice. It is predicated on the peculiar facts and given circumstances of a particular case, coupled with its attendant exigencies. What is more, the decision to grant or refuse such an application is discretionary. Once the exercise has been carried out in a judicial and judicious manner, an appellate court will not randomly or routinely set it aside, simply because it feels it could have been exercised otherwise and would have acted differently, if it were in the shoes of the trial court. See Okeke & Ors. V. Titus Nlem & ors. (1992) 4 NWLR (Pt. 234) 132, (1992) 4 SCNJ 24; Omeregbe v. Lawani (1980) 3 – 4 SC 108; Elendu v. Ekwoaba (1995) 3 NWLR (Pt. 386) 704; Elendu v. Ekwoaba (1998) 12 NWLR (Pt. 578) 320.
Nevertheless, whenever a party has been given ample opportunity to ventilate his grievances in a court of law but chooses not to utilize the same, he cannot be heard to complain of breach of his right to fair hearing as what the court is expected to do by virtue of Section 36 (1) of the 1999 Constitution of the Federal republic of Nigeria, is to provide a conducive atmosphere for parties to exercise their rights to fair hearing. See Bill Construction Ltd. v. Imani & Sons Ltd. (2006) 19 NWLR (Pt. 1013) 1; Newswatch Communications Ltd. v. Atta (supra). Furthermore, a party who complains that he has been denied fair hearing during the trial of a case ought to remember that in a civil case, a balance has to be struck between the plaintiff’s right to have his case heard expeditiously and the defendant’s right to put across his defence to the plaintiff’s suit. Where such a party has been afforded requisite opportunity to put across his defence and he fails to take advantage of such an opportunity, he cannot later on, turn round and complain that he was denied his right to fair hearing. In the instant case, the appellants failed to make use of the opportunities granted to them, created by series of adjournments at their instance and more or less abandoned their defence on the adjourned dates. A person who has abandoned his case cannot complain of lack of fair hearing. See Oyeyipo v. Oyinloye (1987) 1 NWLR (pt. 50) 356; Chime v. Ude (1996) 7 NWLR (pt. 461) 379.
Appellants who sought equity must also do equity, as equity aids the vigilant and not the indolent. Also, he who seeks equity must come with clean hands. A recalcitrant party who showed absolute lack of seriousness and lackadaisical approach towards the handling of his case, should not expect any favour from the court. Courts are not supposed or expected to suffer fools gladly. It was stated in Odogwu v. Odogwu (1992) 2 NWLR (Pt. 225) 539, (1992) 2 SCNJ 357/371 where the Supreme Court said:
“For an applicant to be entitled to the exercise of discretion he must bring his conduct within the legitimate scope of the exercise of the discretion.”
The exercise of discretion must be grounded on fairness to all parties concerned. Also, that it is a matter of public concern that in the crave for justice, the courts must ensure timeous/timely disposal of cases. Definitely, there must be an end to litigation. It should not last or continue forever. Nobody lives forever. You only live once. In Obiora v. Osele (1989) 1 NWLR (pt. 97) 279/296 reiterated the reminder that:
“… public policy demands that the business of the courts should be concluded with expedition.” It is a notorious fact that there is congestion of cases in most of the courts in Nigeria and this principle of pursuing claims and appeals expeditiously is designed to bring relief to and decongest the courts. Per Obaseki, JSC.
The concept of fair hearing does not enure for the benefit of the party who invokes it alone. The essence of fair hearing transcends personal gratification of one of the parties. Thus, fair hearing is a hearing which is fair and just to both parties, regardless of whether they are the plaintiff or defendant. See Okeke v. Oru (1993) 2 NWLR (Pt. 277) 622/635. In order for a party who complains of breach of his right to fair hearing to be taken seriously, he must establish that he came to court, the seat and epic centre of justice and that he was unjustifiably driven away therefrom, disentitled, deprived and impeded from doing the needful towards attainment of justice. That his guaranteed access to court was effectively blocked to his detriment. See Bendel Insurance & Co. Ltd v. Edokpolor & Ltd. (1989) 4 NWLR (pt. 118) 725/736; Ekrebe v. Efeizomor II (1993) 7 NWLR (Pt. 307) 588.
I must say, that the lower court was not wrong when it refused the application by the appellants for the recall of respondent’s sole witness for the purpose of cross – examination. Also, that there was no need for the lower court to formally make any order foreclosing the right of cross examination by the appellants of respondent’s sole witness. Additionally, that there is no need for imposition of punitive conditions for the recall of the said witness as argued by the learned counsel for the appellants. In this regard, it is to be noted that what the Constitution guarantees is fair hearing and not unfair hearing dished and doled out in nauseating disproportionate measures by one party to the detriment of the other. The said refusal by the trial court was based on sound, logical and legal reasons. The appellants have been unable to dislodge or displace the template of justice on which the trial court’s decision was placed. Arguments by the learned counsel for the appellants on this complaint are unacceptable. It is rejected by me. The second issue is also resolved against the appellants.
Let it be re-echoed as it was emphatically stated in Kraus Thompson (supra) that:
“There is no miscarriage of justice where it is not shown that the decision reached is prejudicial or inconsistent with the substantial rights of a party. See Ajuwon v. Akanni & 10 ors. (1993) 9 NWLR (pt. 316) 182.” Per Musdapher, JSC (as he then was)
What happened in this case should be bothersome, disturbing and worrisome to discerning minds. The business of the court is onerous and serious. It is thus unfortunate and unfathomable, if learned counsel for either of the parties should have recourse to playing games and be hell bent on leading the court up the garden path. It is unfair, uncalled for and totally unacceptable. Counsel appearing before any court owes a bounden duty to be diligent, treat the court with respect, honesty and mutual courtesy. Above all, to assist the court in its avowed bid to dispense justice to all manner of people without fear or favour, ill – will or affection. This much and more should be the focused and targeted goals of both the counsel and the court. The appellants have woefully failed to establish why the trial court’s discretion should have been exercised otherwise and in their favour. I am thus unable to give the appellants a systematic consideration in the given circumstances and peculiar facts of this case.
In conclusion, having pored over and painstakingly perused the record of appeal, coupled with exhaustive considerations given to the two issues adopted by me for the determination of this appeal, both issues are resolved against the appellants and in favour of the respondent. In the premise and having resolved the two issues against the appellants, I find that the appeal lacks merit. It deserves to fail and it must fail and woefully too. It is accordingly dismissed by me. I affirm the ruling/decision of the Plateau State High Court in Suit No. PLD/J259/88, delivered by L.C. Dakyen, J. (as he then was) on 19th April, 2004 which refused/dismissed reliefs 2 and 3 in the appellant’s motion paper filed on the 4th day of March, 2004. It is hereby further ordered that the trial court should proceed with hearing in the matter and accord it accelerated hearing as previously ordered and in respect thereof. The respondent is entitled to costs. Accordingly costs in the sum of N30, 000.00 is awarded against the appellants and in favour of the respondent. Appeal dismissed.
IMPORTANT NOTE
CLARA BATA OGUNBIYI, J.C.A.: (as he then was) presided at the hearing of this appeal on the 9th May, 2012 and participated in the conference held thereafter in respect thereof. However, she was subsequently appointed and sworn in as an Honourable Justice of the Supreme Court on the 13th day of July, 2012.
JUMMAI HANNATU SANKEY, J.C.A.: I have had the privilege of reading in draft the Judgment just delivered by my learned brother, Oredola, J.C.A., and I entirely agree that this Appeal is without substance and ought to be dismissed.
For the same reasons as are contained in the said Judgment, I, too, dismiss this Appeal with costs as assessed in the leading Judgment.
Appearances
Friday O. Shaibu Esq.
with S. A. Abbah Esq.
and M. K. Habila Esq.For Appellant
AND
I. E. Asogwa Esq.
with Mrs. C. R. JomboFor Respondent
