CHIEF JOSEPH PAUL INYANG & ORS v. NSE WILSON UDO & ORS
(2019)LCN/13500(CA)
In The Court of Appeal of Nigeria
On Friday, the 14th day of June, 2019
CA/C/89/2017
RATIO
JUDGMENT: PERVERSE JUDGMENT: DEFINITION
A perverse judgment was defined on the case of ATOLAGBE VS. SHORUN (1985) LPELR- 592(SC) thus:
“Perverse simply means persistent in error, different from what is reasonable or required, against weight of evidence. A decision may be perverse where the trial Judge took into account, matters which he ought not to have taken into account or where the Judge shuts his eyes to the obvious.”
See also MMAMMAN VS. FRN (2013) 219 LRCN (PT.2) and OSUJI VS. EKEOCHA (2009) 177 LRCN 134.PER YARGATA BYENCHIT NIMPAR, J.C.A.
BREACH OF FAIR HEARING: TO USE THE EVIDENCE OF A WITNESS NOT CROSS EXAMINED AT ARRIVING AT A DECISION
It trite that it is a breach of fair hearing to use evidence of a witness not cross examined in arriving at a decision, see AYOADE VS. STATE (2018) LPELR-44517(CA) thus:
“Undeniably, one of the pillars of fair hearing is equal opportunity to the parties to present their cases, opportunity to cross examine witnesses of the opponent is a fundamental aspect of the right to fair hearing.PER YARGATA BYENCHIT NIMPAR, J.C.A.
CROSS EXAMINATION: THE IMPORTANCE
The importance of cross-examination was stated in the case of SIMON VS. STATE (2017) LPELR-41988 (SC) thus: “When a witness (the adversary) testifies on a material fact in controversy in the case, the other party if he does not accept the witness testimony as true should cross-examine him on that fact or at least show that he does not accept the evidence as true. Where, as in this case he fails to do either, the Court can take his silence as an acceptance that the party does not dispute the fact. See Amadi vs. Nwosu (1992) 5 NWLR (pt. 241) p. 275. It must be made abundantly clear that one of the main purposes of cross-examination is to test the veracity of a witness.” I can undoubtedly say that it’s a constitutional right of a defendant to be allowed to cross-examine a witness called by the prosecution. And any breach is a breach of the right of fair hearing and it can have a disastrous effect on the judgment. In the case of OKEREKE & ANOR. VS. IBE & ORS (2008) LPELR-4714(CA) the Court held thus: “The right to cross-examine a witness is within the rubric of the right to fair hearing guaranteed under Section 36 (1) of the 1999 Constitution. It is a material ingredient of the right to fair hearing. See the case of Ogolo vs. Fubara (2003) 11 NWLR (pt. 831) 231 at 262 B-C where the apex Court held thus: “Cross examination is a right available to parties in litigation and it cannot be taken away.” See also EZE VS. FRN (2017) LPELR- 42097 (SC). PER YARGATA BYENCHIT NIMPAR, J.C.A.
DUTY OF AN APPELLATE COURT WHEN THE JUDGMENT OF A TRIAL COURT IS PERVERSE
It is settled law that where a judgment of a trial Court is perverse, the appellate Court has a duty to set aside such perverse judgment. See ABISI VS. EKWEALOR (1993) 6 NWLR (PT.302) 643, UDENGWU VS. UZUEGBU (2003) LPELR-3293 (SC).” PER YARGATA BYENCHIT NIMPAR, J.C.A.
THE EFFECT OF BREACH OF RIGHT TO FAIR HEARING
The effect of failure or breach of right to fair hearing nullifies the entire proceedings, and the duty of the Court is to set it aside, see MAMMAN VS. HAJO (2016) 8 NWLR (PT. 1575) 411 and OYEYEMI VS. OWOEYE (2017) 12 NWLR (PT. 1580) 364. PER YARGATA BYENCHIT NIMPAR, J.C.A.
WHAT THE COURT CANNOT DO WHEN AN ORDER OF RE -TRIAL IS MADE
Furthermore, when an order of retrial is made, the Court is restrained from determining the other issues, see NEPA VS. BARRISTER DAN URUAKPA (2010) LPELR-4578(CA); DIOKPA FRANCIS ONOCHIE VS. FERGUSON ODOGWU (2006) 2 SCNJ 96 and EAGLE SUPER PACK NIG. LTD. VS African Continental BANK Plc. (2006) 12 SCNJ 159. PER YARGATA BYENCHIT NIMPAR, J.C.A.
JUSTICES
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
1. CHIEF JOSEPH PAUL INYANG
2. JESSY ASUQUO ABAM
3. IME SUNDAY ETUKUDO Appellant(s)
AND
1. NSE WILSON UDO
2. OKON EDET UDO
3. ANIEFIOK FRANK UDO Respondent(s)
YARGATA BYENCHIT NIMPAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Akwa Ibom High Court sitting at Ikono, Akwa Ibom State delivered on the 4th day of JULY, 2016 by Hon. Justice B.J. Ilaumo wherein the court below in its Appellate jurisdiction dismissed the appeal brought by the Appellants herein and affirmed the judgment of the Magistrates Court. Dissatisfied with the decision, the Appellants filed a notice of Appeal dated 20th July, 2016 setting out 4 grounds of Appeal.
Facts leading to this appeal are straight forward. The claim started before the District Court where the Appellants claim was for the Respondents to accept redemption fee in respect of 3 pieces of land, named Edem Akani Mission, Edem Enem Akpa Ntok and Edem Eko Akpabio Udo Usoro which they claimed belonged to their family but was pledged to the Respondents. The District Court entered judgment for the Appellant after which the Respondents appealed to the Magistrate Court which allowed the appeal and reversed the judgment. The Appellants dissatisfied appealed to the High Court sitting at Ikono which also dismissed the
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appeal and affirmed the judgment of the Magistrate?s Court. The Appellants dissatisfied appealed to this Court.
The Appellants Brief settled by IDORENYIN EKANEM, ESQ., is dated the 7th day of August, 2017 filed on the 8th August, 2017 but deemed on the 15th January, 2018. It distilled 4 issues for resolution namely:
i. Whether the learned High judge was correct in holding that the delay by the leaned magistrate in delivering Judgment after three (3) months did not occasion a miscarriage of justice.
ii. Whether the learned High Court Judge was correct in holding that the finding by the learned Magistrate was not perverse.
iii. Whether the refusal of the learned high Court Judge to appraise the evidence at the trial Court after noting that same was not done by the learned magistrate who would have given Judgment to the Appellants was correct.
iv. Whether the learned High Court Judge was correct to hold that the learned Magistrate was right to have raised the issue of alternative Dispute resolution suo motu and ruled on it without affording the parties and their counsel the opportunity to address him on it.
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The Respondents brief settled by SOLOMON NICE ESQ, is dated 15th January, 2018 filed on the 16th January, 2018, it adopted the 4 issues donated by the Appellant for determination in this appeal. The Court shall also adopt the said issues for determination in this appeal, however because of the nature of the arguments canvassed under issue two, resolution shall start from there before taking on the other issues if necessary.
ISSUE TWO
Whether the learned High Court Judge was correct in holding that the findings by the learned Magistrate was not perverse.
Proffering arguments on this issue the Appellants submitted that the Court below erred in holding that the judgment appealed against was not perverse. Learned counsel extracted the definition of perverse from the cases of MMAMMAN VS. FRN (2013) 219 LRCN (PT.2) supra and OSUJI VS. EKEOCHA (2009) 177 LRCN 134 at 146. They contended that their complaint was that the Magistrate relied on the evidence of independent witnesses given at the locus in quo in setting aside the judgment of the District Court but went on to disagree that the Magistrate relied on the said evidence and consequently making the Court
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below to blow hot and cold, referred to pages 129 of the record of appeal and pages 129. They pointed out that the Magistrate going by page 96 referred to page 8 of the record which contains the evidence of the said independent witnesses. They argued that the magistrate carpeted the district court for failing to evaluate the evidence which resulted in a perverse decision because the district Court also considered the evidence of non – witnesses to arrive at a decision, a breach of fair hearing as no opportunity was given to the parties to cross examine the said persons not called as witnesses, relied on AUDU VS. FRN (2013) 219 LRCN (PT. 2) 223. They referred to the evidence of their witnesses before the District Court which they said established their case. They said the Respondents initially accepted the refund of the pledge before returning it after 10 days and they asked why they accepted it in the first place. They submitted that their evidence was strong and unshaken under cross examination but was rejected by the Appellate Magistrate who relied on the evidence of independent witnesses who did not know the origin of the land.
?
Another aspect of
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perversity mentioned again and again is the issue of two Notices of appeal which was also raise under issue one. They urged the Court to interfere, relied on OSUJI VS. EKEOCHA (2009) 177 LRCN 134. On the Respondent?s Brief at the Magistrate Court which the Court below said it was proper, Appellants submitted that it affected the judge in arriving at a wrong decision, relied on OBODO VS. OLOMU (1987) 3 NWLR (PT. 59) 111; ABUGUJA VS. AZIFUAKU (2008) ALL FWLR (PT. 411) 1004. They condemned the written address of the Respondent?s counsel for being inelegant such that even the Court below complained about the brief and said issues were jumbled up with unclear expressions, referred to page 130 of the record of appeal. They contended that on the basis of the inelegant address, the Court should find for the Appellants and relied on RE-INSURANCE CORPORATION VS. JDP CONSTRUCTION NIG. LTD. (2003) 5 MJSC 104 to urge the Court to find for the Appellants under their Issue Two.
?
The Respondents on their part argued that the findings are justifiable and not perverse. Furthermore, that there were no two notices of appeal as argued earlier. They submitted that
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the Magistrate was correct to use the inelegant address filed by the Respondents. Went on to argue that there was no challenge to the record of appeal, relied on NWORA VS. NWABUNZE (2011) 48 NSCQR 256; RAPHAEL ONWUANUMKPE VS. REUBEN ONWUANUMKPE & ANOR. (1993) 8 NWLR (PT. 310) 186 and SOMMER VS. FHA (1992) 1 NWLR (PT. 219) 548 to say Courts have no jurisdiction to make findings outside the record and therefore the Court below was right.
The Respondent further submitted that the Magistrate relied on the evidence on record and the Appellate High Court?s finding is at page 128 of the record of appeal. They restated their response to the contention that there were no 2 sets of Notices of Appeal under issue one.
On the alleged inelegant brief, the Respondents submitted that they must still be considered in the interest of justice, citing EKPEMUPOLO VS. EDREMODA (2009) NSCQR 1079; EJAJATA VS. OLOHBO (2007) 30 NSCQR 966; BABATUNDE VS. PAN ATLANTIC SHIPPING LTD (2007) 30 NSCQR 714; NDUKWE VS. STATE (supra); ALBERT AKPAN VS. SENATOR EFFIONG BOB (2010) 43 NSCQR 425; ADIKE VS. OBIARERI (2002) FWLR (PT. 131) 1907 and OBIORA VS. OSELE (1989) 10 NSCC(Pt. 1) 174 ?
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to submit that the appeal cannot be allowed on the basis of an inelegant brief. They urged the Court to find for the Respondents.
RESOLUTION OF ISSUE TWO
Issue two challenges the finding of the Appellate High Court when it held that the judgment of the Appellate magistrate Court was not perverse. A perverse judgment was defined on the case of ATOLAGBE VS. SHORUN (1985) LPELR- 592(SC) thus:
“Perverse simply means persistent in error, different from what is reasonable or required, against weight of evidence. A decision may be perverse where the trial Judge took into account, matters which he ought not to have taken into account or where the Judge shuts his eyes to the obvious.”
See also MMAMMAN VS. FRN (2013) 219 LRCN (PT.2) and OSUJI VS. EKEOCHA (2009) 177 LRCN 134. The aspect alleged to be perverse was the Magistrate?s reliance on the evidence of independent witnesses given at the locus in quo in setting aside the judgment of the District Court judge. Going by the record, the Magistrate in reviewing the evidence included the evidence of the Independent witnesses given at the locus in quo to set aside the judgment of the
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District Court. The quarrel is that those witnesses were not sworn and cross examined by the parties. The record confirms that allegation. It trite that it is a breach of fair hearing to use evidence of a witness not cross examined in arriving at a decision, see AYOADE VS. STATE (2018) LPELR-44517(CA) thus:
“Undeniably, one of the pillars of fair hearing is equal opportunity to the parties to present their cases, opportunity to cross examine witnesses of the opponent is a fundamental aspect of the right to fair hearing. The importance of cross-examination was stated in the case of SIMON VS. STATE (2017) LPELR-41988 (SC) thus: “When a witness (the adversary) testifies on a material fact in controversy in the case, the other party if he does not accept the witness testimony as true should cross-examine him on that fact or at least show that he does not accept the evidence as true. Where, as in this case he fails to do either, the Court can take his silence as an acceptance that the party does not dispute the fact. See Amadi vs. Nwosu (1992) 5 NWLR (pt. 241) p. 275. It must be made abundantly clear that one of the main purposes of cross-examination is to
8
test the veracity of a witness.” I can undoubtedly say that it’s a constitutional right of a defendant to be allowed to cross-examine a witness called by the prosecution. And any breach is a breach of the right of fair hearing and it can have a disastrous effect on the judgment. In the case of OKEREKE & ANOR. VS. IBE & ORS (2008) LPELR-4714(CA) the Court held thus: “The right to cross-examine a witness is within the rubric of the right to fair hearing guaranteed under Section 36 (1) of the 1999 Constitution. It is a material ingredient of the right to fair hearing. See the case of Ogolo vs. Fubara (2003) 11 NWLR (pt. 831) 231 at 262 B-C where the apex Court held thus: “Cross examination is a right available to parties in litigation and it cannot be taken away.” See also EZE VS. FRN (2017) LPELR- 42097 (SC). It has also been said that: “This right of cross-examination is considered to be of fundamental importance in the trial process and any attempt by the trial Court to deny or circumscribe the right of a party to cross-examine his adversary’s witness or witnesses, in any manner whatsoever, is frowned upon by the appellate Court and treated as a breach
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of fair hearing. See Iwuoha vs. Okoroike supra, Tewogbade vs. Agbabiaka (2001) 5 NWLR (pt. 705) 38, Psychiatric Hospital Management Board Vs. Edosa (2001) 5 NWLR (pt. 707) 612.” See FULANI vs. RAFAWA & ORS (2013) LPELR – 20384 (CA). It is fundamental that an opportunity is given for cross-examination because it is the constitutional right of an accused person to be given the opportunity to cross-examine witness (es) called by the prosecution. However, where such an opportunity has been given and the party fails to cross examine then, the Courts cannot be blamed. In AMADI vs. NWOSU (1992) 5 NWLR (pt. 241) 273, it was held that where a counsel fails to cross-examine on a point, the Court can take its silence as an acceptance that the party does not dispute that fact.”
And fair hearing in a trial was defined in the case of BREWTECH NIG. LTD. VS. AKINNAWO 7 ANOR (2016) LPELR-4009(CA) thus:
“In the case of WOMILOJU VS. ANIBIRE (2010) 10 NWLR (Pt. 1203) 545 the Court held as follows: ?Where a trial has been conducted in which the authority of the Court has fairly been exercised in consistent with the fundamental principles of justice embraced
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within the contemplation of the process of the law, then there is said to be a fair hearing. This contemplates of allowing the parties equal opportunity to present evidence; to cross examine witnesses and for the trial Court to make findings which are supported by evidence. ?Fair hearing therefore is basically comprised of the twin pillars which determines or circumscribes the parameters of measuring whether it was breached or not. Errors do occur because judges are human.”
Undoubtedly, failure to allow parties cross examine those who testified at the locus in quo is a breach of their rights to fair hearing and the effect of a breach of the right to fair hearing is settled, a plethora of apex Court decisions are on this point, one of which is LEADERS OF COMPANY LTD. VS. BAMAIYI (2010) LPELR- 1771(SC) held thus:
“This Court has held in a plethora of cases that where a party has been denied fair hearing the entire proceeding no matter how well conducted will amount to a nullity. See ADIGUN VS. A.G. OF OYO STATE (1987) 1 NWLR (Pt.56) p.197 OKAFOR VS. A.G. ANAMBRA STATE (1991) 6 NWLR (PT.200) 659.”
There is the contention that one of the
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Courts along the chain of Appellate Court, specifically the magistrate Court reviewed the evidence of those independent witnesses in setting aside the judgment of the trial District Court on the ground that the evidence was not evaluated. The High Court Judge also affirmed that finding. Evaluation of the evidence of those witnesses which were not cross examined has polluted the evidence to be evaluated in reaching a decision. Taking into account extraneous elements makes a decision perverse.
I agree with the Appellants that the decision of the Magistrate and the High Court which considered the appeal as polluted as it was with evidence of the independent witness is perverse and the effect of a perverse decision is that the judgment has to be set aside. The decisions of the trial District Court, Magistrate Court and the High Court here all breached parties rights to fair hearing and have occasioned a miscarriage of justice to the Appellants. It is settled law that where a judgment of a trial Court is perverse, the appellate Court has a duty to set aside such perverse judgment. See ABISI VS. EKWEALOR (1993) 6 NWLR (PT.302) 643, UDENGWU VS. UZUEGBU (2003)
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LPELR-3293 (SC).”
The judgments of the trial District Court, Appellate Magistrate Court and the Appellate High Court are hereby set aside for breach of fair hearing. I find for the Appellants under issue two.
Having arrived at this point, the Court cannot proceed to determine the remaining issues not to prejudice the mind of the Court in rehearing the claim as admonished by the apex Court in several authorities. The effect of failure or breach of right to fair hearing nullifies the entire proceedings, and the duty of the Court is to set it aside, see MAMMAN VS. HAJO (2016) 8 NWLR (PT. 1575) 411 and OYEYEMI VS. OWOEYE (2017) 12 NWLR (PT. 1580) 364.
Furthermore, when an order of retrial is made, the Court is restrained from determining the other issues, see NEPA VS. BARRISTER DAN URUAKPA (2010) LPELR-4578(CA); DIOKPA FRANCIS ONOCHIE VS. FERGUSON ODOGWU (2006) 2 SCNJ 96 and EAGLE SUPER PACK NIG. LTD. VS African Continental BANK Plc. (2006) 12 SCNJ 159.
Flowing from the resolution of the issue two above and the setting aside the judgment of the District Court for breach of right to fair hearing of the parties especially
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the appellants who raised it. The judgment of the Appellate Magistrate Court and High Court must be set aside. The matter must be remitted back to the Chief Judge of Akwa Ibom State for retrial at the District Court before a different panel. An Order of accelerated hearing is also hereby made. Appeal succeeds in part.
Each party is to bear its cost of prosecuting this appeal.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to peruse, in draft, the leading judgment delivered by my learned brother: Yargata Byenchit Nimpar, JCA. I endorse, in toto, the reasoning and conclusion in the well-marshalled judgment. I, too, set aside the decision of the High Court of Akwa Ibom State on the footing of want of fair hearing. I abide by the consequential orders decreed in the leading judgment.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I read the judgment just delivered by my learned brother Yargata B. Nimpar, JCA. His Lordship had adequately treated the issues raised in this appeal in arriving at the conclusion that the appeal is meritorious and should be allowed.
?I am in entire agreement with such conclusion and I too allow the appeal for being
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meritorious. I abide by all the consequential
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Appearances:
Idorenyin Ekanem, Esq.For Appellant(s)
Solomon Nice, Esq. with him, Peter Udoh, Esq.For Respondent(s)
Appearances
Idorenyin Ekanem, Esq.For Appellant
AND
Solomon Nice, Esq. with him, Peter Udoh, Esq.For Respondent
