JINVO VORO v. NYARA VOTOH (2016)

JINVO VORO v. NYARA VOTOH

(2016)LCN/8158(CA)

In The Court of Appeal of Nigeria

On Friday, the 5th day of February, 2016

CA/YL/34/2014

RATIO

CONSTITUTIONAL LAW: RIGHT OF FAIR HEARING; THE IMPLICATION OF THE BREACH OF FAIR HEARING

A hearing of a matter in Court cannot be said to be fair if any of the parties appearing before the Court is refused hearing or is denied the opportunity to be heard or present his case or call evidence; See for example Military Governor, Imo State Vs. Nwanwa (1997) 2 NWLR (Pt. 490) 675. The right to fair hearing is a fundamental Constitutional right guaranteed by the Constitution of the Federal Republic of Nigeria 1960, 1979, and 1999, and a breach of it in trial of adjudication vitiates the proceedings rendering the same null and void and of no effect. Any Judgment which is given without due compliance and which has breached fundamental right of fair hearing is a nullity and is capable of being set aside either by the Court that gave it or by an appellate Court. See further decisions in Bamgboye Vs University of Ilorin (1999) 10 NWLR (Pt. 622) 290; Daduwa Vs Okorodudu (1976) 9 ? 10 SC329; Amadi V. Thomas Aplin & Co Ltd (1972) 4 SC 228; Sadau V. Kadir (1906) 1 FSC 39, (1966) 1 SCNL 93. per. SAIDU TANKO HUSSAINI, J.C.A.

COURT: DUTY OF AN APPELLATE COURT; THE DUTY OF AN APPELLATE COURT TO CONSIDER ALL THE ISSUES PLACED BEFORE IT

The law is trite that an appellate Court has a duty to consider all the issues placed before it. However, where it is of the view that a consideration of one is enough to dispose of the Appeal, it is not under any obligation to consider all other issues raised as held in Okonji v. Njokanma (1991) NWLR (Pt. 202) 131, 146. In effect the Appeal succeeds and same is allowed. The decision of the Taraba State High Court delivered on the 23rd January, 2014 in Suit No. TRSJ/11/2011 between the parties herein is hereby set aside as a nullity. The case is remitted to the Chief Judge, Taraba State who shall assign same to a Judge of the High Court other than Justice Nuhu S. Adi for hearing de novo. per. SAIDU TANKO HUSSAINI, J.C.A.

JUSTICES

JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria

SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria

BIOBELE ABRAHAM GEORGEWILL Justice of The Court of Appeal of Nigeria

Between

JINVO VORO – Appellant(s)

AND

NYARA VOTOH – Respondent(s)

SAIDU TANKO HUSSAINI, J.C.A. (Delivering the Leading Judgment): This Appeal arose from the Judgment delivered at the High Court of Justice of Taraba State sitting in Jalingo on the 23rd January, 2014 in Suit No.TRSJ/11/2011 by which decision the High Court granted the claims of the Plaintiff who is the Respondent before us and declared him the owner of the piece and parcel of land described in the Writ of Summons dated the 28th January, 2011 and filed on 2nd February, 2011 and the statement of claim dated the 25th February, 2011 and filed on the 28/2/2011.

It is against that Judgment of the High Court, hereinafter referred to as the Court below that this appeal was lodged vide the Notice of Appeal filed on the 8th April, 2014 containing 7 (seven) Grounds

The Original Notice of Appeal has since been amended by order of this Court to incorporate additional ground 8 in the amended Notice and Grounds of Appeal filed on the 2nd February, 2015 but deemed properly filed and served on the 2nd March, 2015. Briefs of argument have been filed and exchanged between counsel. At the hearing of the Appeal counsel relied on the

following extant briefs of argument in pursuant of this Appeal, that is:

i. Appellant amended brief of argument wherein the Appellant distilled 4 (four) issues for determination in this appeal as at pages 2 – 4 of the brief.

ii. Respondent’s amended brief of argument filed on the 5th October, 2015 but deemed properly filed by the order of Court on 20th October, 2015 in which it is incorporated, 5 (five) grounds of Preliminary Objection at paragraphs 3. 00 – 3. 01 at page 4 and arguments canvassed thereto at pages 4 -10, paragraphs 3. 02 – 3. 36.

iii. Appellant’s amended Reply to Preliminary Objection and Appellant’s Reply brief of argument filed on the 2/11/2015.

Issues formulated for determination in the Appellant’s brief of argument are at pages 2 ? 4 of the brief as follows:

1. Whether the trial Court rightly assumed jurisdiction over the suit when the Writ by which the action was initiated was incompetent and not in compliance with the relevant rules of the trial Court? Arising from Ground 7 and 8 of the amended Notice and Grounds of Appeal.

2. Whether the trial

Court afforded the appellant a fair hearing in the determination of the Suit, when the Court did not allow the appellant leave to adduce evidence in proof of his defence? ? Grounds 1 and 2 of the amended Notice and ground of Appeal

3. Whether the trial Court was right to have held that the Plaintiff proved his claim to the land in dispute? ? relates to grounds 3, 4 and 5 of the amended Notice and Grounds of Appeal

4. Whether the trial Court was right to have refused to allow the appellant to call evidence in proof of his defence, or consider the appellant?s defence? ? relates to grounds 6 of the amended Notice of Appeal.

Respondent, in his own brief of argument at page 11 adopted all the 4 (four) issues formulated by the Appellant in his brief of argument, but without prejudice to the Preliminary Objection raised by him in his brief of argument.

At the hearing of the appeal case on the 9th November, 2015 Counsel adopted their respective briefs as their argument in this Appeal. I have carefully considered those submissions made by counsel on both sides.

?I am particularly intrigued by issue Nos 2 and 4 as

formulated by counsel in the Appellant?s brief of argument and submissions made thereto wherein it is contended that the refusal by the trial Court to grant leave to the appellant to file certain vital documents such as witnesses? Statement on Oath, list of witnesses, among others, incapacitated him, the Appellant and thus was unable to call evidence of witnesses despite his preparedness and willingness to do so in defence of the Suit against him and yet the trial Court went ahead to deliver Judgment based only on the evidence of witnesses called by the Plaintiff. This submission of counsel for the Appellant relative to issue Nos. 2 and 4 in the Appellant?s brief of argument that he was not allowed to lead evidence in defence of his case has in no way been contradicted by counsel on the opposite side. To make assurances doubly sure I felt there was the need to revert to the record (of Appeal) and to ascertain if indeed the claim or contention of the Appellant that he was not accorded hearing or fair hearing at the Court of trial was indeed the position of things having regard to the records of Appeal.

?The originating process leading to

this case on Appeal, as earlier disclosed in this exercise, was initiated at the instance of the plaintiff, by way of the Writ of Summons issued or filed on the 2nd February, 2011. Plaintiffs Statement of claim was filed at a much later date and that is on the 28th February, 2011. In his response to those processes of Court, the Appellant entered his defence and denied those claims of the Plaintiff vide the Statement of defence filed on his behalf on the 11th March, 2011. It is instructive to note that as at the date defence papers were filed proceedings of the High Court of Taraba State were still regulated by the High Court (Civil Procedure) Rules of 1997 of Taraba Sate until the coming into force, on 1st July, 2011, of the new High Court (Civil Procedure) Rules 2011 of Taraba State.

In the meantime hearing had commenced at the Court below on the 17th June, 2011 when evidence of Pw1 (Christopher Majo) was taken but concluded only on the 23/2/2012 by which date the new rules had become operational.

?At the sitting of Court on the 7th December, 2011, the Court below by order directed on the Plaintiffs and defendant, they were both required to

regularize their papers or position to bring same in line with the new Rules of Court.

The respondent, as Plaintiff in his bid to perfect his position by the Motion brought by him sought the leave of Court to file and serve his list of witnesses and witnesses? deposition out of time. The Court obliged him as evident by the enrolled order of Court as at page 53 of the record of Appeal. The Plaintiff thereafter in continuation of hearing called evidence of Pw2, Pw3 and Pw4 and closed his case. That was on the 24th June, 2013.

His counsel , J. A. Oguche immediately applied to Court and his request granted to sum up his case on the 18/7/2013 admist opposition from defence counsel.

The defence, on the 8/7/2013 put in an application, even though similar to the earlier application made by the Plaintiff, his application seeking leave for enlargement of time within which to file list of witnesses, and documents to be relied upon by him was refused vide the Ruling delivered at the Court below on the 7th November, 2013. The Appeal against that Ruling of the Court below to this Court was decided and same allowed by virtue of the unanimous Judgment

delivered in this Court on 4th February, 2016 in Appeal No. CA/YL/76/2014 between the parties herein.

The appeal case referred to above and the instant appeal both emanate from the same facts in the same proceedings except that whereas in the former, the Appeal was against the Ruling and Order of the Court below refusing Appellant’s application for extention of time to file vital documents to aid the hearing and prosecution of defence case, in the instant appeal case the contention has been on in the propriety of Judgment delivered in the absence of any hearing accorded to the defendant/appellant.

At the close of evidence of witnesses, for the Plaintiff his counsel with leave granted at the Court below, proceeded to sum up his case as evident from the proceedings of Court of the sitting of 7th November, 2013 at pages 187 of the record. The Court at the conclusion of Plaintiff’s counsel’s address adjourned the case to the 23/1/2014 when Judgment was delivered. See proceedings of Court at pages 187 – 195.

It is glaring therefore that on the face of the record of Appeal the Judgment delivered at the Court below on 23rd

January, 2014 is premised on the evidence of the Plaintiff and witnesses called by him alone. There is no corresponding record of evidence from the defendant/appellant and yet the Court below entered Judgment against him due to no fault of the defendant/appellant. This is anything but fair.

In Attorney-General, Rivers State Vs. Ude (2006) 17 NWLR (Pt. 1008) 436 also reported in (2006) 6 -7 SC 131, the Apex Court held:

that gave it or by an appellate Court.?

See further decisions in Bamgboye Vs University of Ilorin (1999) 10 NWLR (Pt. 622) 290; Daduwa Vs Okorodudu (1976) 9 ? 10 SC329; Amadi V. Thomas Aplin & Co Ltd (1972) 4 SC 228; Sadau V. Kadir (1906) 1 FSC 39, (1966) 1 SCNL 93.

The authorities on this point are legion. The appellant had done all that was required of him as person ready and willing to contest the case. He had from the onset filed his defence to deny the claim against him. He did not stop there. He put up an application to the Court below praying to be allowed to regularize process but the trial Court refused the application thereby shutting him out from presenting his defence this Court in Chime V. Onyia (2009) 2 NWLR (Pt. 1124) 1 held per Bada, JCA that:

?In this appeal under consideration, the appellants showed seriousness in the pursuit of their case by filing their reply but the application to regularize he processes was refused by the trial Tribunal acting under the order of Paragraph 2 of the practice Direction, 2007. As a result the appellants were denied the opportunity of calling evidence and tendering

necessary documents.

In Dingyadi V. INEC (No. 1) 2010) 18 NWLR (Pt. 1224) 1, 141 the Supreme Court held:

A hearing cannot be fair if any of the parties is refused, to present his case or call witnesses.

Where proceedings of Court leading to Judgment is adjudged incompetent on account of want of hearing of a party to the case, a ground of Objection attacking the Ground of Appeal and or issues derived therefrom as incompetent should be ignored in my view as frivolous and bordering on technicalities. Issues of denial of hearing transcend all kinds of technicalities and should be addressed as a fundamental question affecting the Constitutional right of the party or person affected as it is the case with the Appellant herein. I am inclined therefore to found for him on issues 2 and 4 presented or formulated for determination in this Appeal. The two issues considered and addressed together in my view effectively dispose of this appeal. The law is trite that an appellate Court has a duty to consider all the issues placed before it. However, where it is of the view that a consideration of one is enough to dispose of the Appeal, it is not

under any obligation to consider all other issues raised as held in Okonji v. Njokanma (1991) NWLR (Pt. 202) 131, 146. In effect the Appeal succeeds and same is allowed. The decision of the Taraba State High Court delivered on the 23rd January, 2014 in Suit No. TRSJ/11/2011 between the parties herein is hereby set aside as a nullity. The case is remitted to the Chief Judge, Taraba State who shall assign same to a Judge of the High Court other than Justice Nuhu S. Adi for hearing de novo.

That is the Order and Judgment.

JUMMAI HANNATU SANKEY, J.C.A.: I had the opportunity of reading in advance the lead Judgment just delivered by my learned lord, Saidu Tanko Husaini, JCA. He has thoroughly dealt with all the issues arising in the Appeal.

I agree entirely with the reasoning and conclusion contained therein to the effect that the Appeal is abounding in merit. Anything else I add would amount to nothing but repetition, replication and tautology.

Suffice to say that I also allow the Appeal and abide by the consequential orders made in the lead Judgment.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I

have been affored in advance a draft copy of the judgment just delivered by my learned Brother, Saidu Tanko Hussaini JCA., and I am in total agreement with the reasoning and conclusions reached therein, which I hereby adopt as mine. I have nothing useful to add.

I too allow the appeal and shall abide by the consequential orders made therein.

Appearances

S. S. Obende, Esq. with him, I. C. Ohanyido, Esq.For Appellant

AND

J. A. Oguche, Esq.For Respondent