NICHOLAS ELUMEZIEM & ORS v. BONIFACE AMADI (2014)

NICHOLAS ELUMEZIEM & ORS v. BONIFACE AMADI

(2014)LCN/7466(CA)

In The Court of Appeal of Nigeria

On Thursday, the 30th day of January, 2014

CA/PH/355/2007

RATIO

PRACTICE AND PROCEDURE: HEARING NOTICES; WHETHER PARTIES ARE ENJOINED BY THE COURT TO ENSURE THAT HEARING NOTICES ARE ISSUES ON PARTIES BEFORE EMBARKING ON THE TRIAL OF ANY MATTER BEFORE THEM

It is trite that trial courts are enjoined to ensure that Hearing Notices are issued on parties before embarking on the trial of any matter before them. See N.A.C.B Ltd vs. Obadiah (2004) 4 NWLR (PT 863) 326 CA. per. UWANI MUSA ABBA-AJI, (PJ) J.C.A.

EVIDENCE: BURDEN OF PROOF; WHICH OF PARTIES HAS THE BURDEN TO PROVE BREACH OF FAIR HEARING

It is trite that the burden is on the party alleging breach of fair hearing in a case to prove the breach, and he must do so in the light of the facts of the case. This is because the facts of a case and the facts only determine acts which constitute non-compliance with the principle of fair hearing. See Maikyo vs. Itodo (2008) 7 NWLR (PT.1034) 443. per. UWANI MUSA ABBA-AJI, (PJ) J.C.A.

CONSTITUTIONAL LAW; FUNDAMENTAL RIGHT TO FAIR HEARING; THE MAXIM “EQUITY AIMS THE VIGILANT AND NOT THE INDOLENT” IN RELATION TO FAIR HEARING, WHETHER A PARTY WHO HAS BEEN GIVEN THE OPPORTUNITY TO DEFEND HIMSELF BUT FAILS TO DO SO CANNOT COMPLAIN OF BREACH OF FAIR HEARING

In all actions, suits or proceedings at law and in equity, the diligent and careful party is the one who is favoured to the prejudice of him who is careless. The vigilant and not the sleeping litigant is the one who is assisted by the law. This is so because the law always abhors delay. Can an applicant who has caused delay in the prosecution of his case be accorded any equitable favour in the court of law? I think not. See Wellington vs. Regd. Trustees Ijebu-Ode.
A party who wants to be absolved from liability must be conscientious and vigilant in defending his case and follow up the progress of the case. In the instant case, the Appellant displayed non-challant and lackadaisical attitude in the defence of his case and no court will accept that sort of attitude from any party to the proceedings. The Appellants were given an opportunity to make a defence even in the face of constant adjournments and frivolous applications at their instance. The maxim ‘equity aids the vigilant and not the indolent’ is one that is appropriately invocable in the instant case.
Where the trial court afforded the Appellant the opportunity to prosecute his case, the Appellant cannot complain that he was not availed constitutional right of fair hearing most especially in the circumstances of the case. The Appellants were undoubtedly given an opportunity to be heard and they failed and or refused to utilize the opportunity. See Muhammed vs. Kpelai (2001) 6 NWLR (Pt.710); the State vs. Onogoruwa (1992) 2 NWLR (PT 221) 33; and Obot vs. Central Bank of Nigeria (1993) 1 NWLR (Pt.310) 140. per. UWANI MUSA ABBA-AJI, (PJ) J.C.A.

PRACTICE AND PROCEDURE: EVIDENCE AND ADDRESS; WHETHER ADDRESS CAN MAKE UP FOR THE LACK OF EVIDENCE AND WHETHER CASES ARE NORMALLY DECIDED ON CREDIBLE EVIDENCE

It is right to point out here that as important as Address may be, cases are decided on credible evidence. No amount of brilliance in an Address can make up for the lack of evidence to prove and establish a case or else disprove and demolish point in issue. See Niger Construction Ltd vs. Chief Okugbeni (Supra). It would be stating the obvious that a Written Address cannot be a substitute for pleadings nor evidence. See Ekpeyong vs. Etim (1990) 3 NWLR (PT 140) 594. The Appellant cited the case of Obodo vs. Olomu(Supra) where the Supreme Court held that Addresses of counsel form part of the case and failure to hear the Address of one party however overwhelming the evidence on one side vitiates the trial.
A careful look at Obodo’s case (supra) is not the same in the instant case as the trial judge based his judgment “SOLELY” on the Address of the Defendant which vitiated the trial. Addresses are designed to assist the court. An Address may make a good impression on the judge but it certainly cannot make up for lack of evidence and cases are normally decided on credible evidence. Indeed a trial judge would be at liberty to dispense with Addresses where the facts of the cases are straight forward and not in dispute. See Nigeria Construction Ltd vs. Okugbeni (Supra). More so, cases are basically not won on Written Address. They are basically and essentially won on written facts. Counsels Address is only a forum where the law is brought in, not only to interpret the facts before the court but to edify them in lucid and persuasive style of advocacy. If counsel feels that there is no need for Address on a particular issue, he should be left alone with his decision. See R.E.A.N. Ltd vs. Aswani ile Ind. (1991) 2 NWLR (Pt.176) 639 at 672. per. UWANI MUSA ABBA-AJI, (PJ) J.C.A.

COURT: JUDGMENT; WHETHER JUDGMENT SHOULD BE CONFINED TO THE ISSUES RAISED BY THE PARTIES

It is an elementary and fundamental principle for the determination of disputes between parties that the judgment must be confined to the issues raised by the parties. It is clearly not competent for the judge to suo motu make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before him. See Commissioner of Works Benue State vs. Devcon Ltd (1988) NWLR (Pt.83) 407 at 420. per. UWANI MUSA ABBA-AJI, (PJ) J.C.A.

Before Their Lordships

UWANI MUSA ABBA AJIJustice of The Court of Appeal of Nigeria

PHILOMENA MBUA EKPEJustice of The Court of Appeal of Nigeria

PETER OLABISI IGEJustice of The Court of Appeal of Nigeria

Between

1. NICHOLAS ELUMEZIEM
2. TIMOTHY AJUKWARA
3. JONAS OBIJURU
4. BONIFACE ONYEZEREAppellant(s)

AND

BONIFACE AMADI
(For himself and on behalf of Umuokorie, Umuezuta Umuokanne, Ohaji)Respondent(s)

UWANI MUSA ABBA-AJI, (PJ) J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Customary Court of Appeal, Imo State in appeal No.CCA/OW/A/36/2005 wherein judgment was delivered on the 22nd day of February, 2007 in favour of the Respondent.

The original Plaintiffs in this matter commenced this action for themselves and on behalf of Umuokorie family in Umuezuta, Umuokanne Ohaji at the Customary Court, Ohaji District Holden at Umuapu against the Appellants who were the Defendants on 6/12/1994 claiming the following reliefs:

1. Declaration of Customary Right of Occupancy over the piece or parcel of land known as and called ‘ALA OKPO OGBU OZU OKORIE’ situated along Uzo Nwaudi Umuezuta Umuokanne farm Road.

2. Perpetual Injunction restraining the Appellants, their privies, children, agents and assigns from further acts of trespass on the said land again.

3. N5000.00 (Five Thousand Naira only) being General Damages for trespass and economic trees damaged on the said land.

The Respondent was later substituted for one of the Plaintiffs. Three witnesses testified for the Respondent and his Co-plaintiff before they closed their case on 19/3/97 and the matter was adjourned for the Defence to open.

The trial Customary Court observed that the Appellants had from the onset of this case in 1994 exhausted all manner of delay tactics to frustrate the case of the Respondents by making various applications at various levels of Court by asking for adjournments at every sitting of the Court or being absent and were unwilling to open their defence at the time of delivering the Court’s judgment. The trial court after considering the unchallenged evidence of the Respondents and their witnesses entered judgment for the Respondents on 26/5/97.
The Appellants being dissatisfied with the judgment appealed to the Customary Court of Appeal, Imo State, formulating the following two issues for determination, viz:

Issue 1:
Whether the refusal or failure of the Court to call upon the Appellant Boniface Onyezere (who was present in Court on 19/1/1997) to make his defence before the Court adjourned for locus and judgment, deprived the Defendants the opportunity or right to present their case and thus deprived them of their right to fair hearing, a doctrine of natural justice observed in Umuokanne and Ohaji Egbema in general.

Issue 2:
Whether the failure of the Court to give the Appellants opportunity to present their Address before delivering judgment was also a deprivation of the Appellants’ rights to fair hearing, a principle of natural justice.

The Customary Court of Appeal in a considered judgment delivered on the 22/2/2007, dismissed the Appellants’ appeal and affirmed the judgment of the trial Customary Court.

It is against the said judgment of the Customary Court of Appeal, Imo State that the Appellants have appealed to this Court. The Appellants filed a Notice of Appeal on 13th March, 2007 contained at pages 203-207 of the Records of Appeal upon four (4) Grounds of Appeal which are hereby reproduced and shown as part of their particulars as follows:

GROUND ONE: MISDIRECTION IN CUSTOMARY LAW
“The learned judges of the Customary Court of Appeal, Imo State, misdirected themselves in Customary law which misdirection has occasioned a miscarriage of justice when they held that the Appellants, had very reasonable opportunity to be heard but they wasted it, and thus dismissed the Appellants’ appeal, when the Lower Court failed or refused to call upon the 4th Defendant/Appellant who was present in Court to defend himself on 19/5/97, the Plaintiff/Respondents having closed their case, but adjourned for locus and for judgment, and thereby deprived or denied the Appellants the right to present their case”

GROUND TWO: ERROR OF LAW
“The judges of the Customary Court of Appeal of Imo State erred in Customary law when they held that counsel’s Address in the Customary Court is not one known to Customary Law and procedure and thus dismissed the Appellants’ appeal, when the trial Court received and relied upon the Address of the Plaintiff/Respondent’s Counsel in its judgment but never gave the Defendants/Appellants the opportunity to present their own Address and thus failed or refused to give both parties equal opportunities of presenting their cases.”

GROUND THREE: MISDIRECTION IN CUSTOMARY LAW
“The judges of the Customary Court of Appeal, Imo State misdirected themselves in Customary law which has occasioned a miscarriage of justice when they held that the Appellants did not appeal against the findings of fact of refusal and reluctance to be part of the suit and that it is taken that they accepted it to be binding on them and thus dismissed the Appellants’ appeal when the said findings were never an issue before the Customary Court of Appeal, Imo State.”

GROUND FOUR: MISDIRECTION IN CUSTOMARY LAW
“The judges of the Customary Court of Appeal of Imo State misdirected themselves in Customary law which has occasioned a miscarriage of justice when they held that the Appellant made mockery of the Lower Court and the Customary Court of Appeal” and further held that the Appellants went to the High Court for relief over a matter pending at the Customary Court and that at a stage in this Appeal, the maternal sons and daughters of Umuezuta, Umuokanne applied to this Court to withdraw the Appeal so that they could settle same at home but that they reported that they could not settle same due to the intransigency of the Appellants and thus dismissed the Appellants’ appeal.

The Appellants filed a brief of argument on 7/3/13 settled by C. T. Okeke, Esq. wherein the learned Counsel formulated three (3) issues for determination thus:

1. Whether the Customary Court of Appeal did not misdirect itself in Customary Law when it held that the Appellants had very reasonable opportunity to be heard but they wasted it, and thus dismissed the Appellant’s appeal, when the trial Court failed or refused to call upon the 4th Appellant who was present in Court on 19/5/97 to defend himself as required by the Customary Court Rules, but adjourned for locus and judgment.

2. Whether the Appellants were not denied fair hearing when they were not given opportunity to present their Written Address before judgment was delivered whereas the Respondent’s Written Address was received and relied upon in the judgment.

If the Appellants were denied fair hearing, whether the Customary Court of Appeal was not wrong when it held that Counsel’s Address was not known to Customary Law and procedure and thus dismissed the Appellants’ case.
3. Whether the Customary Court of Appeal did not arrive at its judgment based on issues that are not relevant to the case before it and thus misdirected itself in the application of customary law.

The Respondent on his part filed his Brief of Argument on the 7/4/2010 and dated same day, settled by O. C. Igwe, Esq. learned counsel, also formulated three (3) issues for determination to wit:

1. Whether having regard to the plentitude of opportunities given to them, the Appellants can maintain a case for lack of fair hearing.
2. Whether failure and/or refusal of the Appellants to present a Final Address would affect the outcome of the case.
3. Whether the Customary Court of Appeal can be said to have taken cognizance of irrelevant and extraneous issues, having regard to the record before it.

At the hearing of the appeal on the 13/11/2013 both counsel adopted their respective briefs of argument and urged the court to allow and or dismiss the Appeal respectively. Appellants’ counsel also adopted his Reply Brief filed on 7/3/2013 and therein urged the court to discountenance the Respondent’s issues 1 and 3.

I have considered the Respondents Issues 1 and 3 and it is my view that the issues did not deviate from the issues and Grounds of Appeal of the Appellants. In fact, the Respondent’s issues captured a clearer meaning and intendment of the Appellants’ brief. I find the issues properly framed based on the Appellants’ Grounds of Appeal and the Respondent’s counsel responded appropriately to the issues of the Appellants. It is also my view, that the cases cited by the Respondent on the issue of fair hearing are in order, applicable and not non-sequitur.

Having found the issues formulated by the respective counsel same in con, I will adopt the issues formulated by the Appellants in the determination of the appeal.

In arguing this issue, learned counsel to the Appellant, C. T. Okeke, Esq. reacting to the letter of adjournment at the trial Court and following the Application of the Respondent Counsel at page 63 of the Records of Proceedings submitted that even if the trial Court had refused the Appellants’ counsels’ application for adjournment for any reason, the court ought to have called upon the 4th Appellant who was present in Court to present his Appellant’s case before considering whether to adjourn for visit to the locus in quo. He further submitted that the trial court ran foul of mandatory provisions of the Imo State Customary Court Rules by not calling up the 4th Appellant for locus and the trial court acted hastily and threw caution overboard in adjourning for locus. He relied on the cases of Okafor vs. A.G. Anambra State (1991) 6 NWLR (PT.200) 659 at 679, Okoroike vs. Igbokwe (2000) 14 NWLR (Pt.688) 498; and urged the court to hold that failure of the trial court in not calling upon the 4th Appellant to present the Appellants’ case before adjourning for locus and judgment is in breach of the provisions of Order IX Rule 4(2) (c) of the Imo State Customary Court Rules 1989, which has resulted in the infringement of the Appellants’ Constitutional right to fair hearing. The learned counsel also argued that the decision of the Customary Court of Appeal that the “Appellants had very reasonable opportunity to be heard but wasted it” is perverse as the Court was referred to Order IX Rule 4(2) (c) of Imo State Customary Court Rules 1989. He stated that both the Customary Court and the Customary Court of Appeal failed to consider the above law and it is the duty of the Court to deal with, consider and pronounce on all material issues properly raised before it. He cited the case of NEPA vs. Arobieke (2006) ALL FWLR (Pt.316) 285 at 290 (2006) 7 NWLR (PT 979) 245; Oloruntoki vs. Johnson (1990) NWLR (Pt.158) 600 at 606.

Further to his argument, Appellant’s Counsel stated that the trial court allowed itself to be bounded by its previous decision and thus exercised its discretion wrongly thereby denying the Appellant fair hearing. He submitted that fair hearing is not only a Constitutional issue but also a principle of English Law as well as Customary Law. He relied on the case of Usani vs. Duke (2006) ALL FWLR (PT 340) 1093 at 1123 (2006) 17 NWLR (PT.1009) 610 and urged the court to resolve issue 1 in favour of the Appellants and uphold Grounds 1 of its Ground of Appeal.

In his response, the Respondent’s counsel submitted that the Appellants were not denied fair hearing and that the rules of natural justice were not violated in the course of hearing and determination of the case. He argued that the Appellants’ counsel confined his argument to the proceedings of 19/5/97 only and submitted that for a proper and judicious appraisal of the issue, regard must be had to the circumstances and events leading up to 19/5/97. He stated that PW3 testified before the Lower Court on 22/11/95 and on 5/12/95 case was adjourned for cross examination of PW3 and by 25/12/96 when the matter came up; it was adjourned sine die owing to the Appellant’s application at the Customary Court of Appeal, Owerri. On 8/5/96 case came up for cross examination of PW2, and continuation of hearing, the Appellant’s counsel was absent and thereafter adjourned to 16/5/96 for Cross examination of PW2. On 27/5/96 which is for the evidence of PW3, all the Defendants were absent and unrepresented by counsel and no letter from their counsel. According to Respondent counsel, the Lower Court proceeded to hear evidence of PW3 since the case was adjourned in the presence of the 1st Defendant. The next time the case came up was 22/7/96, the Defendant counsel asked for adjournment to find out why his clients were conspicuously absent in court. On 27/8/96, the Defendant counsel rather than proceed for the Cross Examination of PW3 applied that the case be heard de novo. The Court overruled him and he applied for adjournment. On 13/3/97, the Defendant counsel moved a motion for stay of proceedings, the Lower Court overruled the application. On 17/3/97, the Defendants and their counsel were again absent, the court discharged PW3 who was earlier re-called for Cross Examination and closed the case of the Plaintiffs. The Court ordered that fresh Hearing Notice be issued the Defendants and case was adjourned to 8/4/97. At said date, the Defendant counsel wrote for an adjournment, the Court obliged him and adjourned to 13/5/97 a date suggested by the Defence counsel. On 13/5/97, the Defendant counsel was absent and the Lower Court again yielded to an adjournment to 19/5/97 and before adjourning, the court held, “if on the next return day the Defence does not open, the court will either adjourn for locus or enter judgment for the Plaintiffs, this case is once more adjourned to 19/5/97 for the Defence to open.” And on 19/5/97, the Defence counsel wrote again for adjournment and the court refusing to grant the adjournment and proceeded to give effect to the Order made on 13/5/97 i.e. visit to locus in quo.

Learned counsel submitted that it is trite that a court does not make an order in vain, stating that the record is replete with opportunities to participate in the proceedings. They refused to avail themselves of those opportunities. He stated that the various findings of the Lower Court on the reluctance or refusal of the Defendants to participate in the proceedings were not challenged by the Appellants and the law is that a finding of fact which is not appealed against is taken as correct. He relied on the case of Ibrahim vs. Barde (1991) 43 LRCN 1919 at 1927; and Sparkling Breweries Ltd vs. Union Bank Ltd (2001) FWLR (PT.71) 1682. 1686.

It is also stated that fair hearing denotes opportunity and that the common trend in the cases cited below is the word ‘OPPORTUNITY’. He submitted that there was abundance of opportunity given to the Appellants to present their case (defence) but they preferred to spurn the trial court and make mockery of our judicial system. He cited in support, the cases of Atamgba vs. Effim (2001) FWLR (Pt.58) 1155 at 1162; Reynolds Construction Co. Ltd vs. Okpegboro (2000) NWLR (Pt.367) 368 at 374; Ogundovin vs. Adetemi (2001) FWLR (Pt.71) 1741 @ 1744-1745; Muhammed vs. Kpelai (2001) FWLR (Pt.63) 1404 @ 1408; (2001) 6 NWLR (Pt 710) 700; Folbed Ltd vs. Alpha Merchant Bank Ltd (1996) 10 NWLR (Pt.478) 344.

Learned counsel further argued that the trial court was right in invoking the provisions of Order 7 Rule 3 of its Rules by proceeding to hear the case, after waiting for the Appellants. He urged the court to resolve issue 1 in their favour and hold that there was no want of fair hearing, rather the Appellants were out to cause undue delay to ridicule the court, and relied on Dalorima Merchant (Nig.) Ltd vs. UBA Plc (2001) FWLR (Pt.71) 1851 @ 1854.

Having appraised the arguments of both counsels on this issue, the Appellants contention is that the failure of the trial court to give the 4th Appellant opportunity to present the case and the refusal of the Customary Court of Appeal to make pronouncement pursuant to Order IX Rule 4(2) of the Imo State Customary Court Rules 1989, is an infringement of the Appellants Constitutional right to fair hearing.
Order IX Rule 4(2) of the Imo State Customary Court Rule 1989 provides thus:
“Where there is a case for the Defendant to answer the court shall call upon him to make his defence, and he may adduce evidence in support of his case”.
By Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended provides thus: In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality. Right to fair hearing or the rule of audi alteram partem postulated that the court or other tribunal must hear both sides at every material stage of the proceedings before handing down a decision on that stage. It is a rule of fairness. A court cannot be fair unless it considers both sides of the case as may be presented by both sides. See Agbahomovo vs. Eduyegbe (1999) 3 NWLR (PT 594) 170 at 184.

In the circumstances of this case, can it be that there are acts on the part of the Appellants which constitutes non-compliance with the principle of fair hearing as to entitle the trial court to refuse the 4th Appellant an opportunity of being heard and the refusal of the Customary Court of appeal to make pronouncement to Order IX Rule 4(2) of the Imo State Customary Court Rules 1989? A careful examination of the chronology of adjournments taken at the instance of the Appellants includes 25/1/96, 8/5/96, 27/5/96, 22/7/96, 27/8/96, 13/3/97, 19/3/97, 13/5/97 and 19/5/97. See also paragraphs 4.03 to 4.17 of the Respondents brief of argument at pages 8 to 6 thereof.

On the above dates, the Appellants were either absent or made various frivolous applications in the bid to delay and frustrate the proceedings and the case of the Respondent and the time honoured aphorism is that justice delayed is justice denied. The principle of audi alteran partem is not a massive shield to circumvent the due process of law, or shielding a litigant from the consequences of litigation at his whims and caprices. A litigant must show that he was deliberately by-passed and excluded from proceeding before he can succeed in invoking the principle of audi alteram partem. See Mohammed vs. Kpelai (Supra).

Accordingly, I agree with the reasoning of the Respondent’s counsel that court must put its feet down firmly when a party or counsel is determined to waste its time for no just cause. There is a limit a court can stretch itself to accommodate a party, most especially when the party’s main aim is to stultify its proceedings by a deliberate display of nonchalant attitude. The court cannot allow itself to be held to ransom in the name of fair hearing. I hereby resolve this issue against the Appellants in favour of the Respondent.

Issue 2
Whether the Appellants were not denied fair hearing when they were not given opportunity to present their Written Address before judgment was delivered whereas the Respondent’s Written Address was received and relied upon in the judgment. If the Appellants were denied fair hearing, whether the Customary Court of Appeal was not wrong when it held that counsel’s Address was not known to customary law and procedure and thus dismissed the Appellants case.
The Appellants in their argument on this issue stated that the Appellants were denied fair hearing and were not given equal treatment, equal opportunities and equal consideration, when they were not given an opportunity to present their Written Address whereas the trial court received and relied upon the written address of the Respondent in its judgment. He further opined that the Customary Court of Appeal was wrong when it held that counsel’s Address was not known to Customary law and the trial court received and relied on what was unknown to it. He relied on the cases Omokhodion vs. Federal Republic of Nigeria (2006) ALL FWLR (PT.292) 18; Obodo vs. Olomu (1987) 3 NWLR (Pt.59) 11 at 121.

The learned counsel urged the Court to hold that failure of the trial court to receive Appellant’s Address is a breach of fair hearing and pointed out that Customary Law or procedure is dynamic and not static. He relied on Eshenake v. Gbinije (2005) ALL FWLR (pt.289) at 1289-1290; Dada vs. Faleye (2007) ALL FWLR (Pt.349) 1134 at 1152; Newswatch Communications Ltd vs. Atta (2006) All FWLR (Pt.318) 580 at 582.

He thus urged the court to resolve issue 2 in favour of the Appellants.
The learned counsel for the Respondent in his response also adopting his submission in respect to issue No. 1, argued that a party who ignores an opportunity to present his case cannot be heard to complain of lack of fair hearing. It is his argument that refusal of the Appellants to participate in the trial, which refusal culminated in their- failure to present an Address cannot vitiate the outcome of the case. He cited the case of Niger Construction Co. Ltd vs. Okugbeni (1987) 4 NWLR (PT 67) 787; Ozima vs. Anoruo (1991) 3 NWLR (PT 181) 571-573. He further argued that the Lower Court would still have ‘reached the same decision even without counsel’s Address and there was no miscarriage of justice as to warrant the interference of this court. He pointed out that substantive procedures of inferior courts are to be considered and not their form. He relied on the cases of Dokubo vs. Omoni (2001) FWLR (Pt.61) 1804 @ 1807-1808, Osu vs. Ogiri (1988) 1 NWLR (PT 69) 221-222; Onwuama vs. Ezeokoli (2001) FWLR (Pt.100) 1213-1215. He also relied on section 282(1) of the 1999 Constitution which stipulates that the Appellate and supervisory jurisdiction of the Customary Court of Appeal of a state is limited to civil proceedings involving questions of customary law. He urged the court to hold that the issue of Address as raised is not an issue of customary law and should therefore be struck out.

I have considered the submissions of learned counsel on the issue of Address. Can it be said in the circumstance of this case that the Appellants were denied fair hearing when they did not present their Written Address before judgment and the Respondents’ Written Address was relied upon in the judgment? It is right to point out here that as important as Address may be, cases are decided on credible evidence. No amount of brilliance in an Address can make up for the lack of evidence to prove and establish a case or else disprove and demolish point in issue. See Niger Construction Ltd vs. Chief Okugbeni (Supra). It would be stating the obvious that a Written Address cannot be a substitute for pleadings nor evidence. See Ekpeyong vs. Etim (1990) 3 NWLR (PT 140) 594. The Appellant cited the case of Obodo vs. Olomu(Supra) where the Supreme Court held that Addresses of counsel form part of the case and failure to hear the Address of one party however overwhelming the evidence on one side vitiates the trial.
A careful look at Obodo’s case (supra) is not the same in the instant case as the trial judge based his judgment “SOLELY” on the Address of the Defendant which vitiated the trial. Addresses are designed to assist the court. An Address may make a good impression on the judge but it certainly cannot make up for lack of evidence and cases are normally decided on credible evidence. Indeed a trial judge would be at liberty to dispense with Addresses where the facts of the cases are straight forward and not in dispute. See Nigeria Construction Ltd vs. Okugbeni (Supra). More so, cases are basically not won on Written Address. They are basically and essentially won on written facts. Counsels Address is only a forum where the law is brought in, not only to interpret the facts before the court but to edify them in lucid and persuasive style of advocacy. If counsel feels that there is no need for Address on a particular issue, he should be left alone with his decision. See R.E.A.N. Ltd vs. Aswani ile Ind. (1991) 2 NWLR (Pt.176) 639 at 672.

Where a counsel failed or refused to address the court, it is not the duty of court to impose on such counsel. The Appellants had various opportunities to present their Written Address but failed or refused to do so by playing tricks with frivolous applications and adjournments. In the circumstance of this case therefore, failure to address the court does not amount to breach of fair hearing. The Appellants were given ample opportunity to take whatever steps they would have wished, but they threw it away. Accordingly, the Appellants were not denied fair hearing whatsoever as they purposely denied themselves opportunity to present their Address.

The court cannot be held to ransom by any litigant who has and constitutes himself a clog in the machinery of the court. Whether counsel’s Address was known or unknown to customary law does not avail the Appellants as law is not static but dynamic and the Appellants denied themselves opportunity to be heard. I resolve this issue against the Appellants in favour of the Respondent.

Issue 3
Whether the Customary Court of Appeal did not arrive at its judgment based on issues not relevant to the case before it and thus misdirected itself in the application of Customary Law.

The Appellants relates this argument to grounds 3 and 4 of the Grounds of Appeal. It is his argument that a court ought to confine itself to issue (s) properly raised before it for adjudication and it is not open to the court to introduce new issues and any decision based on issue not raised by the parties will not be allowed to stand. He further stated that where a court decides to raise an issue not raised by the parties before it, the court ought to give parties the opportunity to address it on such issue. He cited the case of Idika vs. Erisi (1988) 2 NWLR (Pt.78) 563 at 569; Bajoga vs. Government, Federal Republic of Nigeria (2007) ALL FWLR (PT.394) 273 at 278. The Appellants further argued that they never refused nor were they ever reluctant to take part in the proceedings and as such the Customary Court of Appeal misdirected itself in the application of Customary Law when it reached that decision.

Appellants counsel also submitted that the Customary Court of Appeal misdirected itself when it held that the Appellants made mockery of the Lower Court and further held that the Appellants went to the High Court for relief over a pending matter at the Customary Court and further held that at a stage in the Appeal, the maternal sons and daughters of Umuezuta Umuokanne applied to settle out of court but could not settle same due to intransigency of the Appellants. The Appellants submitted that no such thing ever happened at the Customary Court of Appeal and same was not relevant to the determination of the issue before the Customary Court of Appeal. That even though, the former counsel sought a relief over a pending matter in court, that it cannot be a justification to dismiss the Appellants case as the sin of the counsel cannot be visited on the litigant. He cited the case of Okoro v. Dakolo (2006) ALL FWLR (PT.336) 201 at 211; Saleh v. Monguno (2006) ALL FWLR (PT 332) 1441 and urged the court to hold that Customary Court of Appeal considered issues not relevant to the case before it and misdirected itself in Customary Law by dismissing the Appellant’s case. He thus urged the Court to resolve issue 3 in favour of the Appellants.

In his response, the Respondent counsel in his argument stated that the issue of fair hearing which the Appellants claims is directly connected with the issue of refusal and reluctance by the Appellants to be part of the suit. It is his view that an issue before the court is not limited or restricted to only issue raised by the Appellants alone. Respondents could raise issues which the appeal court can consider in the determination of all issues before it. According to the learned counsel, the issue which the Appellants argued that was not relevant and that the Lower Court misdirected itself was duly and properly raised before the Lower Court by Respondents, it was the submission made by the learned Respondent’s counsel in his Brief of Argument before the Customary Court of Appeal, Imo State and the Lower Court made observations in that regard. See page 166 paragraph 3.23 of the Record of Appeal.

Learned counsel also submitted that the Lower Court was still acting within its adjudicatory powers to make the observation as the same issue was manifest in the Record of Appeal before the Lower Court. A court should ordinarily give consideration to any testimony on record before it, in view of the surrounding circumstances, the inherent probabilities and all attendant or relevant facts before it. He cited the case of Ibrahim vs. Barde (1996) 43 LRCN 1919 at 1922; Sparkling Breweries Ltd v. Union Bank Ltd (supra); Omman v. Ekpe (2000) 1 NWLR (Pt.641) 365, 367 at 372 and urged the court to hold that issue was properly raised before the Lower Court and that the court appropriately pronounced upon it.

The Respondent also urged the court to discountenance the Appellants submission that the afore-quoted observation by the Lower Court constitutes a misdirection thus, “that the Appellant made a mockery of the Lower Court and the Customary Court of Appeal and further held that the Appellants went to the High Court for relief over a matter pending at the Customary Court and that at a stage in this appeal, the maternal sons and daughters of Umuezuta, Umuokanne applied to this court to withdraw the appeal so they could settle at home but that they reported that they could not settle same due to the intransigency of the Appellants”. It is the Respondent’s submission that the Lower Court did not embark on a voyage of discovery when it made reference to these issues. The court acted based on the facts before it and its own file. He further submitted that observations are merely statements made in obiter and did not culminate to the ratio decidendi and urged the court to dismiss this appeal.

The sole issue that calls for the attention of this honourable court in issues 3 of the Appellants brief is whether the Customary Court of Appeal’s judgment was based on issues not relevant to the case before it? It is an elementary and fundamental principle for the determination of disputes between parties that the judgment must be confined to the issues raised by the parties. It is clearly not competent for the judge to suo motu make a case for either or both of the parties and then proceed to give judgment on the case so formulated contrary to the case of the parties before him. See Commissioner of Works Benue State vs. Devcon Ltd (1988) NWLR (Pt.83) 407 at 420. Having gone through the records of proceedings, it was clear that the very issue which the Appellants are contending that was not raised by Respondents was actually raised by them in the Appellants brief, at page 166 of the Record of proceedings. At pages 25-26 of the records of appeal, it was observed that the Appellants made application to High Court by an order of prohibition to stop the trial court from proceeding with the matter. This order was dismissed by the High Court. Also at page 182 of Records of proceedings, the court confirmed that a letter from Mrs. Augustiana and Co; for and on behalf of maternal sons and daughters of Umuezuta, Umuokanne requesting for settlement of the matter out of court. It was the submission of the Appellant’s counsel in his Appellants brief of argument that no such thing ever happened as stated and confirmed above and he further stated that same was not relevant to the determination of the issue before the Customary Court of Appeal.

I find the submissions of the Appellants counsel rather appalling to deny what is on the face of records. And I agree with the Respondent’s counsel that the Lower Court acted based on the facts before it and its own file. I hereby discountenance the submissions of the Appellant’s counsel that the Lower Court’s observation constitutes misdirection. The Customary Court of Appeal is not limited to only issues raised by the Appellants’ counsel; it could consider the issues raised by the Respondent in the proper determination of the issues before it. The court can also rely on the issues raised by both parties in deciding its judgment in so far as such issues are relevant to the circumstances of the case before it. In this regard, I resolve issue 3 against the Appellants in favour of the Respondents.
In consequence of the above, I hereby dismiss this appeal as it lacks merit. The judgment of the Lower Court delivered on 22/2/2007 is hereby affirmed. A cost of N50,000.00 to the Respondents against the Appellants.

PHILOMENA MBUA EKPE, J.C.A.: I have had the opportunity of reading in advance the judgment just delivered by my learned brother UWANI MUSA ABBA AJI, (PJ) JCA. My Lord has meticulously dealt with all the issues herein, I agree with the reasoning and conclusions arrived at. I have nothing more to add and I adopt same as mine. I too agree that this appeal lacks merit and I hereby dismiss it. The judgment of the Lower Court delivered on the 22nd day of February 2007 is hereby affirmed. I abide by my Lord’s order as to costs.

PETER OLABISI IGE, J.C.A.: I have read in advance the Judgment just delivered by my noble Lord, UWANI MUSA ABBA AJI, JCA (PJ).

I agree with my Lord that the appeal lacks merit and should be dismissed. I only wish to add that enough latitude was given to the Appellants including the 4th Appellant BONIFACE ONYEZERE who the Appellants said was in Court of first instance on 19-1-97 but was according to Appellants denied opportunity of bring heard before the Court adjourned for locus and judgment.

I am also of the view that with the catalogue of adjournments granted in favour of the Appellants at the trial Court, the trial Court cannot be blamed for refusing the Appellant further adjournment to delay the fair hearing of the action/suit now on appeal.

The record of appeal glaring shows that the Appellants were afforded all opportunities to defend and prosecute their defence before the trial Court. When a Court continues to grant incessant adjournments in favour of a particular litigant, the Court will expose itself to accusation of bias or over-indulgence of a party to an action/suit. Justice is not a one-way traffic. Where the indulgence required pursuant to the provisions of Section 36 of the 1999 Constitution as amended has been given to a Party to a proceeding the Judge trying a case has a duty to maintain or hold the balance and ensure that a party does not hold the other side and the Court to ransom. The business of the Court cannot be dictated by the whim and caprices of any party. See the case of BANNA VS TELEPOWER (NIG) LTD (2006) 15 NWLR (PART 1001) 198 at 220H to 221 A where NIKI TOBI J.S.C. said:
“IN NEWSWATCH COMMUNICATIONS LTD. VS ALHAJI ALIYU IBRAHIM ATTA (2006) 12 NWLR (PART 993) 144 AT 171, Paras B-E, I said:
“A trial Judge can indulge a party in the judicial process for some time but now for all times. A trial judge has the right to withdraw his indulgence at point the fair hearing principle will be compromised, compounded or will not be fair as it in the judicial process. At that stage, the party who is not up and doing to take advantage of the fair hearing principle put at his door steps by the trial judge, cannot complain that he was denied fair hearing. Such is the situation I see in this appeal.”

For this and the fuller reasons well articulated on all the issues raise in the appeal, I too hereby dismiss this appeal as lacking in merit.
I also endorse the consequential orders contained in the leading judgment.

Appearances

C. T. Okeke, Esq.For Appellant

AND

For Respondent