MR. EKERE MANDU UKPONG v. MR. EFFIONG SIMEON ESOPNDEM & ORS (2013)

MR. EKERE MANDU UKPONG v. MR. EFFIONG SIMEON ESOPNDEM & ORS

(2013)LCN/6572(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 3rd day of December, 2013

CA/C/232/2011

RATIO:

WORDS AND PHRASES: FAIR HEARING

Fair hearing implies that a party is not inhibited in the hearing but is given all the opportunity to make his case. It also includes a right to be heard of any material stage of the proceedings. see: Agbahomovo V. Eduyegbe (1999) 3 NWLR (Pt. 594) 170; Ekuma v Silver Eagle Shipping Agencies Ltd., (1987) 4 NWLR (Pt. 65) 472. Olumesan v. Ogundepo (1996) 2 NWLR (Pt. 433) 628; Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587; and Gukas v. Jos Int. Breweries Ltd (1991) 6 NWLR (Pt. 199) 614. Per ONYEKACHI A. OTISI, J.C.A.

The right of fair hearing is a very essential right for a person to secure justice. Fair hearing connotes equality between the parties and in principle entails the right of the parties to be present in person. The hearing should be adversarial in the sense that both parties are given an opportunity to present their case in their own way. An equal opportunity must be given to all the parties to make their case and to be heard at all material times and stages of their trial. Per UZO I. NDUKWE-ANYANWU, J.C.A.

JUSTICES

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

MR. EKERE MANDU UKPONG – Appellant(s)

AND

1. MR. EFFIONG SIMEON ESOPNDEM

2. THE COMMISSIONER OF POLICE, AKWA IBOM STATE

3. INSPECTOR UZOR

POLICEMAN ATTACHED TO MONITORING

UNIT, STATE POLICE HEADQUARTERS, UYO – Respondent(s)

ONYEKACHI A. OTISI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Akwa Ibom State, Etinan Judicial Division delivered on 29th June, 2010.

In summary, the facts leading to this appeal are as follows: The Appellant, who was the 3rd Respondent in the lower court, is landlord of the property known as and called No 23 Umo Etukudo Street, Etinan. The property was occupied by tenants, which included the 1st Respondent who was the Applicant in the lower court. The Appellant had, sometime in 2008, been issued with a ‘Notice to Abate a Nuisance’ by the public Health Authority, Etinan as a result of a leaky roof in the property. When the Appellant embarked on repairs of the property, the roof over the 1st Respondent’s apartment was removed. There was rainfall on the material date, as a result household items of the 1st Respondent were destroyed. The 1st Respondent lodged a complaint against the Appellant for malicious damage to property before the Divisional Police Office in Etinan. As a result, the Appellant alleged he and his workers were detained and tortured; and, sums of monies were extorted from him. The Appellant, aggrieved, petitioned the Divisional Police Officer (DPO), Etinan. When the DPO failed to take any action, the Appellant further petitioned the Commissioner of Police for the transfer of the 1st Respondent’s original complaint alongside his petition to the state police Headquarters, Ikot Akpan Abia from Etinan Police Division. The 1st Respondent was thereafter arrested and detained by the 3rd Respondent and denied bail. The 1st Respondent thereupon instituted an action against the 2nd and 3rd Respondents, and, the Appellant alleging an infringement of his fundamental rights. The 2nd and 3rd Respondents did not react to the suit but the Appellant filed a counter affidavit. The 1st Respondent’s Counsel addressed court. The matter was adjourned to various dates including 27/4/2010 for reply of Appellant’s counsel but he failed to do so. The lower court delivered judgment on 29/6/2010.

The Appellant, dissatisfied with the said judgment has appealed.

In the Amended Notice and Grounds of Appeal filed on 27/2/2012, the Appellant raised two Grounds of Appeal; and, sought on Order, setting aside the said judgment of the lower court delivered on 29/6/2010.

The Appellant’s Brief of Argument, settled by Ekpenyong M. Ekpenyong, Esq. of counsel, was filed on 27/2/12, and, deemed properly filed and served on 11/6/2012. 1st Respondent’s Brief was filed by Dasil Akpan, Esq. of counsel on 30/10/2012, deemed properly filed and served on 29/11/2012. The Appellant filed a Reply Brief on 4/4/2013, which was deemed on 30/10/2013. These Briefs were adopted by respective Counsel on 30/10/2013.

The 2nd and 3rd Respondents filed no Briefs and did not appear. Hearing Notice was served on them on 24/4/2013 through their counsel but they did not appear.

In the Appellants’ Brief, a sole issue has been distilled for determination from the two grounds of Appeal as follows:

Whether there was fairness of trial when the lower court failed to consider the 3rd Respondents counsel’s both letter of adjournment dated 26/4/2010 and the written address dated 22/6/2010.

It is submitted that fair hearing is a Constitutional requirement provided in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, as amended. That it is a breach of the principle of fair hearing for a trial Judge to adjourn for judgment when the parties before him were yet to conclude their cases. Relying on Echie Cyril Abuguja vs. Chief Charles Ezechukwu Azifuaka (2008) ALL FWLR (PT 411) 1004, it is submitted that the judgment delivered in such a circumstance is a nullity. That fair hearing is the impression of a reasonable man of whether a trial is fair as borne out by the record of proceedings; relying on Ukpe vs. State (2002) FWLR (PT 103) 416 at 447, Ajisefinni vs. D.P.P. (2002) FWLR (PT 122) 88 at 102; Okofor vs. Uchebo (2002) FWLR (PT 122) 188 at 196-197: Ogolo vs. Fubara (2003) FWLR (PT 169) 1285 at 1312.

Learned Counsel referred to the record of proceedings for 27th April, 2010 when the trial Judge adjourned the matter for judgment and submitted that the information given to the trial court by the Applicant’s Counsel was false. But that the trial court relied on these facts to adjourn the matter for judgment; and, that this information shortchanged the Appellant. That the Appellant’s Counsel had commenced his reply on 17/11/2009 and was yet to conclude. He wrote the trial court for on adjournment on 26/4/2010 but the trial court ignored the application. Without first taking into account the 3rd Respondent’s Counsel’s application for adjournment and ruling thereon, the trial court heard the matter and adjourned for judgment.

It is submitted that a Court is entitled to look at the contents of its file or record and or refer to it in consideration of any matter before it; relying on Agbarch vs. Mimra (2008) ALL FWLR (PT 409) 559. It is also submitted that the court is duty bound to ensure that each party is given on equal opportunity to present its case and to be heard on its merit so that no injustice is thereby caused to any of the parties; relying on Daniag vs. Teachers Service Commission (1996) 5 NWLR (PT 446) 97; Ekwocha vs. F.U.T.C. (1996) 1 NWLR (PT 442) 112: NBCI vs. MGI Co. Ltd (1992) 2 NWLR (PT 221) 71. That the non-consideration of the application for adjournment from the Appellant’s Counsel vitiated the proceedings of 27/4/2010.

Learned counsel also submitted that in spite of the Appellant being denied fair hearing of the application for adjournment, his Counsel took steps to file a written address dated 22/6/2010, seven days before the judgment was delivered, in line with Order XII of the Fundamental Rights Enforcement Procedure Rules 2009. That a party is entitled to submit a final address; relying on section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria, as amended; Anyaebosi vs. R.T. Briscoe (1987) 2 NSCC Vol. 18 at p.508; Agbogu vs. Adichie (2002) FWLR (PT 127) 1202. That the trial court failed to consider the said address but rather found in error that there was no reply from the Appellant’s counsel. He relied on Edet vs. State (2008) 14 NWLR (PT 1106) 52 at 56; Christ the King Seventh Day Mission vs. Njoku (2005) ALL FWLR (PT 287) 938.

The Court is urged to resolve the issue raised in favour of the Appellant.

In the Respondent’s Brief, the issue raised for determination is:

Whether the Appellant, who failed, refused and neglected to appear in court on 27/4/2010 without any excuse and his failure to file his written address on time for consideration by the trial court can complain of denial of fair hearing.

It is submitted that the allegation of denial of fair hearing by the Appellant is without evidential support. It is submitted that there was no application for adjournment by the Appellant on 27/4/2010 when the matter came up for reply. That neither the Appellant nor his Counsel was in court and there was no explanation for their absence proffered. It is submitted that the application for adjournment was an afterthought, made for the purposes of this appeal, and not brought to the notice of either the trial court or the 1st Respondent’s counsel. It is submitted, assuming but not conceding, that the letter of adjournment was before the trial court, and the trial court failed to consider it, that the question of whether to grant an adjournment or not is a matter entirely within the discretion of the trial judge, which the appellate court would not generally interfere with except in certain circumstances; relying on Saleh vs. Monguno (2003) 1 NWLR (PT 801) 221 at 238, Ceekay Traders Ltd vs. General Motors Co. & Ors (1992) 2 NWLR (PT 222) 132 at 156; University of Lagos vs. Aigoro (1985) 1 NWLR (PT 1) 143 at 144.

It is submitted, relying on the records of the trial court, that nearly all adjournments after counsel for the 1st Respondent as Applicant before the trial court had concluded his arguments, were of the instance of the Appellant. It is submitted that the Appellant was given enough opportunity to present his case but, he failed to do so; and that the court cannot compel a defendant to appear before it. That a person who has been given an opportunity to defend an action but fails to do so cannot complain of fair hearing: relying on Military Governor of Lagos state vs. Adeyiga (2003) 1 NWLR (PT 802) 589 at 611, Olorunfemi vs. Nigerian Educational Bank Ltd (2003) 5 NWLR (PT 812) 1 at 26, NIPSS vs. Kraus Thompson Organisation (2001) FWLR (PT 45) 702 at 706, Nuba Commercial farms Ltd vs. NAL Merchant Bank Ltd (2003) FWLR (PT 145) 661 at 670.

It is submitted that a trial court must balance the requirement of fair hearing with the requirement for hearing to be within a reasonable time. That where a party indulges in dilatory tactics, he is not aiming at fair hearing.

On the written address filed seven days before judgment, it is submitted that the matter had been adjourned from 27/4/2010 to 22/6/2010. But that it was only seven days before that the Appellant’s Counsel filed a written address. He also relied on the provisions of Order XII Rule 3 of the Fundamental Rights Enforcement Procedure Rules 2009 to submit that the Appellant did not file his address in accordance with the Rules.

It is further submitted that addresses are designed to assist the court. That failure to address the court or failure to consider an address does not amount to breach of fair hearing: relying on Ogunsanya vs. State (2011) 46 NSCQR (PT 1) 1083 at 1122, Niger Construction Ltd vs. Okugbeni (1987) 4 NWLR (PT 67) 787 at 792, REAN vs. Aswani ile Industries Ltd (1991) 2 NWLR (PT 176) 639 at 649. That the trial court had considered the counter affidavit of the Appellant in his judgment and found it to be unmeritorious.

It is submitted that the trial court had been fair to the appellant. The court is urged to dismiss the appeal. In the Appellant’s Reply Brief, it is submitted that the 1st Respondent had not challenged the record of appeal and that courts are bound by unchallenged records of appeal; relying on Onwuka vs. Ononuju (2009) 38 NSCQR (PT. 1) 33; Oguntayo vs. Adelaja (2009) 39 NSCQR 639.

The sole issue for determination raised by both parties is grounded on fair hearing. This issue can only be determined from a close examination of the record of appeal. It has been rightly submitted for the Appellant that this court is bound by the record of appeal before it and it cannot depart therefrom; and, certainly not on the basis of speculation. It is trite law that in the absence of any formal complaint, the appellate court and the parties are bound by the contents of the record of appeal as presented by the registrar of the High Court. Consequently, any assertion which purports to contradict the record of appeal will be regarded as being tendentious and will be discountenanced. In Julius Berger (Nig.) Ltd. v Femi (1993) CLR 3(h) (CA), this court, per Achike JCA (as he then was), of blessed memory, said:

“It must be stated categorically that there is no formal complaint before us from either party with respect to the correctness or otherwise of the record of appeal. It is trite that in the absence of any complaint, the appellate court and the parties are bound by the contents of the record of appeal.

Unless in respect of a minor type-graphical error which can be informally corrected with the approval of the court, a party who questions the correctness of the record must formally attack the record with due notice of such complaint given to the opposing party… Any informal assertion whether by oral submission on contained in a brief of argument which contradicts the contents of the record of appeal is inadmissible and will not avail the party making the assertion.”

See also: Onwuka vs. Ononuju (supra); Albasma (Nig.) Ltd Vs. Salami (1998) 4 NWLR (PT 546) 448.

I shall therefore rely on the Record of Appeal received in this court on 29/9/2011.

The matter before the lower court commenced by way of application to enforce fundamental rights filed by the 1st Respondent. Leave was granted was granted to him under the former Fundamental Rights (Enforcement Procedure) Rules on 6/8/2008 and the substantive motion on notice was filed on 13/8/2008 (page to of the Record of Appeal). The Appellant, as 3rd Respondent therein, was served on 18/9/2008 by substituted means upon order of the lower court. See the affidavit of service at page 18 of the Record of Appeal. On 28/10/2008, the Appellant was served with a Hearing Notice for 4/11/2008 (page 22 of the Record of Appeal). The Appellant filed a counter affidavit on 4/11/2008 (pages 25 – 28 of the Record of Appeal). At page 3 of the said counter affidavit was a counter claim (page 27 of the Record of Appeal). The Appellant was described in the process as the:

“3RD RESPONDENT/COUNTER-CLAIMANT”.

The Appellant was served with other Hearing Notices for 19/2/2009 on 11/2/2009, for 27/4/2010 on 20/4/2010 (pages 47 and 63 of the Record of Appeal).

The application to enforce fundamental rights was moved on 13/5/2009 (Page 118 of the Record of Appeal). Appellant’s counsel applied for an adjournment to enable him reply.

The matter was adjourned to 11/6/2009. On that date, the record of proceedings of page 120 reads:

“Respondents not represented by Counsel and no letter to the Court”.

The matter was adjourned and fresh hearing notice ordered.

The Appellant filed a written address, which was served on the other parties on 24/6/2010 (pages 73 – 75 of the Record of Appeal).

On the next date being 24/7/2009, the record of proceedings read:

“Applicant is present.

Respondents are absent.

Appearances: No Counsel on both sides, but applicant’s Counsel has written asking for an adjournment on health grounds.

No letter from respondent’s Counsel. (page 120 of the Record of Appeal).

The matter was then adjourned to 29/10/2009, and, fresh Hearing Notice was again ordered to issue on Respondents.

On 29/10/2009, the matter was adjourned at the instance of the trial court to 17/11/2009.

On 17/11/2009, Mr. Ekpenyong for the Appellant commenced his reply, referring to their counter affidavit.

But, he did not conclude because it was discovered that the Applicant/1st Respondent’s Counsel had been served with an incomplete process, the annexures on the said counter affidavit were missing. The matter was further adjourned to 20/1/2010 for reply. See: page 121 of the Record of Appeal. There were subsequently other adjournments. On 27/4/2010, the Appellant and counsel were absent. 1st Respondent’s Counsel referred the trial court to previous adjournments which were granted to enable the Appellant’s counsel conclude his reply. Since the matter could not be adjourned indefinitely for the reply, he urged the trial court to adjourn the matter for ruling; which the trial court did.

In the entire proceedings on 27/4/2010, no mention was made by the trial count of any letter written by Appellant’s Counsel dated 26/4/2010, seeking on adjournment in respect of proceedings on 27/4/2010. At page 131 of the Record of Appeal, is reproduced a letter dated 26/4/2010, written by the Appellant’s counsel to the trial court, applying for adjournment in respect of HU/MISC 419/2008. There is no indication on the face of the letter to show the time the letter was received by the court registrar.

This underscores my firm belief that it is always important to have the time of receipt of letters of this nature indicated on its face by the court registrar. If such practice were adapted, it would immediately, with unequivocal clarity, indicate when the letter was submitted and received by the court. Indeed, the importance of this practice cannot be overemphasized for the simple reason that if a letter seeking on adjournment in a particular matter is submitted and received by the trial court after proceedings for the day, the trial court cannot be faulted or denounced for taking no action thereon.

Although there was no time indicated on the said letter seeking an adjournment by the Appellant’s counsel, I will not go as for as branding or dismissing the letter for being an ‘afterthought’, as has been contended by learned Counsel for the 1st Respondent. It is part of the Record of Appeal, which has not been formally challenged. I also cannot speculate on the time the letter was received by the court or on whether the letter was actually brought to the attention of the trial Judge of the material time. However, the Record of Appeal is replete with adjournments to enable the Appellant’s counsel either reply or conclude his reply to the motion moved on 13/5/2009 by 1st Respondent’s Counsel. Up until 29/6/2010 when judgment was finally given, the Appellant’s Counsel did not conclude his reply.

In my considered view, the Appellant and his Counsel were given adequate opportunity to be heard in reply to the 1st Respondent’s arguments. And, as has rightly been submitted, once such opportunity is given, no complaints of lack of fair hearing can be entertained on that score. See: AG, Rivers State vs. Ude (2006) 6-7 S.C. 54 Scott-Emuakpor vs. Ukaibe (1979) 1 SC 6, Newswatch Communications Ltd vs. Attah (2006) 4 S.C. (PT. II) 114; Obienu vs. Okeke (2006) ALL FWLR (PT 340) 1166 at 1181, Usani vs. Duke (2006) ALL FWLR (PT 340) 1093 at 1125.

An application to enforce fundamental right is usually determined on affidavit evidence. The trial court is required to fully evaluate the affidavit evidence proffered before it, even if it fails to consider the written addresses. I fully endorse the view earlier expressed by this court in Sanyaolu vs. INEC (1999) CLR 3(t) (CA), per Olagunju JCA thus:

“But I do not share the view that failure to refer to counsel’s address in the judgment even through a technical infraction of the appellant’s right of fair hearing is a breach of audi alteram partem rule and occasioned a miscarriage of justice. A miscarriage of justice would occur if on the reading of the judgment some material point in the argument of the learned counsel which are bound to operate in favour of the learned counsel’s client have been left out of consideration.”

In the event that a written address is not properly considered by a trial court, if evidence proffered before the trial court, viva voce or by averments in a counter affidavits, which is the evidence in defence, is properly evaluated, then there is fair hearing. See also: Veepee Ind. Ltd. vs. Cocoa Ind. Ltd (2008) 7 MJSC 125:

It is not in issue that the Appellant deposed to a counter affidavit. The counter affidavit, strangely, also contained a counter claim. The learned trial Judge in his judgment at pages 123 – 128 of the Record of Appeal acknowledged that the Appellant had filed a counter affidavit but held:

“The purported Counter affidavit and the accompanying counter claim has (sic) no place in the Fundamental Rights (Enforcement Procedure) rules matters. Accordingly the said counter claim together with the purported counter affidavit filed by the 3rd respondent in the matter is discountenanced.” (page 127 of the Record of Appeal).

The trial Judge was right in stating that a counter claim is alien to proceedings under the Fundamental Rights (Enforcement Procedure) Rules. However, what he ought to have done was to discountenance the counter claim and evaluate the counter affidavits. To jettison both the counter claim and the counter affidavits is akin to throwing a new baby away with the foamy both water.

By discountenancing the counter affidavits, there was no evidence from the Appellant for consideration, against that proffered by the 1st Respondent, who was the Applicant.

Discountenancing his counter affidavits, placed the Appellant in a disadvantaged position; and, deprived him of fair hearing in the proceedings.

By discountenancing the Appellant’s counter affidavits, instead of excising the offending strange portion called a ‘counter claim’, the Appellant was shortchanged of his right to be heard.

I therefore hold that the Appellant was not accorded fair hearing an account of his counter affidavit which was discountenanced and not considered. The sole Issue raised for determination is thus resolved in favour of the Appellant.

The law attaches great importance to the rule of fair hearing. Where proceedings of a trial court are vitiated by unfairness, however manifested, the first duty of a Court reviewing the decision of such trial court is to set aside the decision as it amounts to a nullity. The effect of a breach of the rule of audi alteram partem or of fair hearing is to render the hearing liable to be set aside or declared invalid by the appellate court. The court will treat the situation as if such a hearing never in fact took place: See: Oyeyemi V. Commissioner for Local Government; Kwara State (1992) 2 NWLR (Pt. 226) 661 at 685; and Olumeson V. Ogundepo, (supra). That is the appropriate order to make in this circumstance. Idakwo v Ejigo (2002) 12 MJSC 81, Tsokwa Motors (Nig) Ltd v UBA (2008) 2 MJSC 104.

Accordingly, the judgment of the Akwo Ibom State High Court, Etinan Judicial Division delivered on 29th June, 2010 in HU/Misc. 419/2008 is hereby set aside. The matter shall be remitted to the Chief Judge of Akwa Ibom State for hearing de novo before another Judge.

Parties are to bear their respective costs.

UZO I. NDUKWE-ANYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Onyekachi A. Otisi, JCA.

At any point in our adversarial jurispondence, the court will always emphasize the importance of fair hearing in any proceeding before it.

Having discountenanced the Counter Affidavit of the Appellant, the sense of fairness is lost.

It is trite law that, once there is a breach of fair hearing, the whole proceedings in the course of which the breach occurred, and the decision arrived at by the court becomes a nullity. ANPP vs. INEC (2004) 7 NWLR pt 871 page 16, All Peoples Party Vs. Ogunsola (2002) 5 NWLR pt 761 page 484.

For this and the fuller reasons contained in the lead judgment, I also allow this appeal. A abide by all the consequential orders in the lead judgment.

CHIMA CENTUS NWEZE, J.C.A.: I had the advantage of reading the draft of the leading judgement which my learned brother, Otisi JCA, just delivered now. I endorse the conclusion that this appeal is meritorious.

I agree with the reasoning in the leading judgement that the lower court fell into error when it discountenanced the appellant’s Counter Affidavit instead of, simply, excising the offending part, curiously, called a “Counter Claim.” That was a great affront to the inveterate rule of fair hearing. The consequences of the breach of the said rule of fair hearing are very far-reaching. Cases on this point are legion: they are many.

Many of them have been cited in the leading judgement. It serves no useful purpose repeating them in this contribution. It is for these, and the fuller, reasons in the leading judgement that I, too, shall enter an order allowing this appeal. I abide by the consequential orders in the said leading judgement.

Appearances

Ekpenyong M. Ekpenyong, Esq.,For Appellant

AND

Dasif Akpan, Esq., for the 1st Respondent.For Respondent