MR. MACLEAN TUAKUMA INAINFE v. HRM EDMUND DAUKORU & ORS
(2019)LCN/13744(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 7th day of August, 2019
CA/PH/224/2018
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
ABUBAKAR MUAZU LAMIDO Justice of The Court of Appeal of Nigeria
Between
MR. MACLEAN TUAKUMA INAINFE Appellant(s)
AND
1. HRM EDMUND DAUKORU
(Mingi XII, Amanyanabo of Nembe)
2. CHIEF (ENGR) MOSES SOLOMON OCKIYA
3. CHIEF (HON) B. N. EREWARI-IGBETA
(The 2nd and 3rd Defendants are sued for themselves and as representing the Nembe Chiefs Council) Respondent(s)
RATIO
WHETHER OR NOT THE COURT CAN RAISE ISSUES SUO MOTU
It is to be noted that our Courts are not all together stopped from raising issues suo motu. Any Court can raise an issue suo motu which it feels would effectively resolve the dispute between parties. However, where a Court decides to raise an issue suo motu on an issue, facts of which are not in evidence, then it must as a matter of right invite parties to address it on the issue especially a party who will be adversely affected by the decision. See OSHODI V. EYIFUNMI (2000) 13 NWLR (PT 684) 298; MOJEKWU V. IWUCHUKWU (2004) LPELR 19030 and LEADERS & COMPANY LTD V. BAMAIYI (2010) LPELR 1771. PER LAMIDO, J.C.A.
THE DUTY OF THE TRIAL COURT TO ASSESS THE CREDIBILITY AND VERACITY OF THE EVIDENCE BEFORE IT
The trial Court has the power to assess the credibility and veracity of the evidence before him. That is what evaluation of evidence entails.
Where documentary evidence is in issue, the trial Court still possesses the right to evaluate the contents thereof and come to a conclusion on whether a probative value should be ascribed to it or not. In that quest, the function of the trial Court is simply to evaluate the document on the strength of other evidence before him. This is so because the trial Court?s Judgment must be confined to issues of facts raised by the parties. See FINNIH V. IMADE (1992) 1 NWLR (PT 219) 511.
However, in the course of evaluating an evidence oral or documentary, the Courts are to be extra careful not to embark upon an extra judicial act without proper evidence laid before them. Courts are not entitled to substitute their own views for matters in contention in the absence of evidence. Independent examination of exhibits by trial Courts and even appellate Courts has its attendant problems and that led to the restatement of the legal position in the locus classicus DURUMINIYA V. COP (1961) NRNLR 70 where the Court held thus: –
?The magistrate examined the books, but apparently not in Court ? for the record does not show that he observed or was shown any entries in Court, except the few we have mentioned, and in examining them out of Court, as appears from his Judgment, he observed numerous points which ought to have been brought out in Court at the hearing but were not. In doing this, magistrate was not trying the case, he was investigating it.
A trial is not an investigation and investigation is not the function of a Court. A trial is the public demonstration and testing before a Court of the cases of the contending parties. The demonstration is by assertion and evidence and the testing is by cross examination and argument. The function of a Court is to decide between the parties on the basis of what has been so demonstrated and tested. What was demonstrated in Court at this trial failed to support the prosecution?s case and the magistrate should have dismissed the case. It was not part of his duty to do cloistered Justice by making an enquiry into the case outside Court not even by the examination of documents which were in evidence, when the documents had not been examined in Court and the Magistrate?s examination disclosed things that had not been brought out and exposed to test in Court or were not things that, at least must have been noticed in Court. The Supreme Court has placed its stamp of approval on the above dictum of the High Court in ONIBUDO & ORS V. AKIBU & ORS (1982) LPELR 2679 @ 30; per Bello JSC (of blessed Memory) where he stated that:-
It needs to be emphasized that the duty of a Court is to decide between the parties on the basis of what has been demonstrated, tested, canvassed and argued in Court. It is not the duty of the Court to do Cloistered Justice by making an enquiry into the case outside Court even if such enquiry is limited to examination of documents which were in evidence, when the documents had not been examined in Court and their examination out of Court disclosed matters that had not been brought out and exposed to test in Court and were not such matters that, at least, must have been noticed in Court.”
Now, what the learned trial Judge did was to examine Exhibit A in the cool recess of his chambers and detected that the date appearing on the said exhibit has been tempered with a tipex and proceeded to reject the document he had earlier on admitted. It is to be noted that Exhibit A was tendered and admitted without any objection from the Respondent and neither in the deposition of CW1 nor under cross examination did the issue of alteration on the date therein arose. It follows therefore that the trial Court raised this issue suo motu and proceeded to resolved same without affording the parties an opportunity of addressing it on the issue. In SAADU & ANOR V. AFOLABI & ORS (2012) LPELR 7873 @ 105; Nwezie, JCA (as he then was) held that;
He is not allowed to act on what he discovered in such a document in relation to an issue when that was not supported by evidence or was not brought to the notice of the parties to be agitated in the usual adversarial procedure.” PER LAMIDO, J.C.A.
ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of High Court of Bayelsa State, Nembe Judicial Division delivered on 20/02/2018 by Bonfini, J. The Appellant as claimant before the trial Court claimed against the Respondents/Defendants Jointly and severally the following reliefs as can be seen from the writ of summons and the statement of claim: –
1. A declaration that the claimant is the owner and therefore the person entitled to the statutory right of occupancy over all the piece or parcel of land measuring approximately 441 hecters situate at Ogbolomabiri Nembe as delineated in survey plan No. TAO/RIV95/568 and which land is the subject of deed of grant made by his Majesty, the Hon. Justice Ambrose E. Allagoa, Mingi XI, the Amanyanabo of Nembe in favour of the claimant.
2. A declaration that the action and/or threats by the Defendants to deprive the claimant of his lordship of the said piece or parcel of land is unlawful, illegal and wrongful.
?3. An order of perpetual injunction restraining the Defendants their agents, privies, heirs, successors in title and anyone
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claiming through, under or in trust for them from revoking the said grant of the land to the claimant or otherwise depriving the claimant of his exercise of right of ownership over the said piece or parcel of land.
The Defendant/Respondents filed a joint statement of defence and a counter claim. They seek for the following reliefs: –
1. A declaration that all swamp land in the Ogbolomabiri community in Nembe Local Government Area of Bayelsa State whether reclaimed or not (including the land in dispute measuring approximately 5.41 hectares delineated and verge Red in the Defendants survey plan No. ENL/BS0041/LD/2014 of 28/03/2014 is vested in the Mingi, Amanayabo of Nembe.
2. A declaration that by the Nembe Native law and custom applicable to the said Ogbolomabiri Community People there is no legal right of reclamation of the Community swamp lands by a reclaimant.
?3. An order of perpetual injunction restraining the claimant either by himself or by his family or household members, agents and privies from interfering or occupying the portion of the said land measuring 3.5 Hectares unallocated outside the area verged orange in the said
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survey Plan of 28/3/2014.
The facts of this case as can be seen from the Judgment of the trial Court are that sometimes in 1982, the claimant resolved to establish an electric bull manufacturing factory in his native community in Nembe using the instrumentality of Isikara Industrial Ltd, a company owned by him. In furtherance of that resolve, the claimant began to clear a portion of land belonging to his family which had been allotted to him by the family for that purpose. Upon commencement of clearing the said land some chiefs stopped the claimants and the said dispute was resolved by the then Amanyanabo of Nembe in favour of the chiefs. The claimants instituted an action at the High Court. As part of the settlement of the dispute, the Amanyanabo of Nembe granted the Claimant a swamp land. The claimant proceeded and reclaimed the parcel of land granted him and upon the death of Amanayabo XI and on the ascension to the throne of Mingi XII, in 2007, the defendants claimed that the claimant has encroached on Nembe community land and the claimant commenced this suit seeking the reliefs reproduced earlier.
?The claimant testified and called 2 other
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witness and tendered several documents as Exhibits. The defendants called 2 witnesses. At the conclusion of the trial, the trial Court dismissed the case of the claimant and granted the reliefs in the counter claim of the defendants with a cost of N 50,000.00.
Dissatisfied with the decision of the trial Court, the Claimant/Appellant filed a notice of appeal on 16/04/2018. The said notice of appeal contains 7 grounds of Appeal couched thus: –
GROUND ONE
The learned trial Judge erred in law when he held;
?A proper look at Exhibit A reveals there is a tipex on which the figure 95 is inscribed. No explanation was offered as to how it has the tipex and 95 inscribed on it. This survey plan having been tempered (sic) with, I will attach no probative value to it and would in the circumstance reject it and accordingly it is rejected and expunged.
PARTICULARS IN LAW
I. Exhibit ?A? was tendered by the Claimant and admitted and marked as exhibit without objection from the Defendants.
?II. There is nothing in ?Exhibit ?A? that violates the Evidence Act 2011 and/or makes it inadmissible in
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evidence.
III. The issue of the so-called tempering with Exhibit ?A? was never raised by the Defendants or the learned Trial Judge at the time it was tendered by the Claimant and admitted as exhibit by the parties.
IV. A Court is not permitted in law to examine a document in the cold comfort of his chambers independent of the parties.
GROUND TWO
The learned Trial judge erred in law by making out a case for the Defendants/Counter-Claimants when he suo motu identified a ?tipex? on Exhibit ?A? and relied on that to reject the said Exhibit ?A?.
PARTICULAR OF ERROR
i. Neither party to the action before the learned Trial Judge made an issue out of a so called ?tipex? on Exhibit ?A? all through the trial of the suit.
ii. The issue of a ?tipex? appearing on Exhibit ?A? was entirely an invention of the Learned Trial Judge.
?iii. The learned Trial Judge did not draw the attention of the Claimant or his counsel to the existence of a ?tipex? or any other form of alteration on Exhibit ?A? nor did he
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give the parties or their counsel an opportunity to address the Court on the said ?tipex? or alteration before rejecting Exhibit ?A? that had first been admitted without objection.
iv. A Court is not permitted in law to examine a document in the cold comfort of his chambers independent of the parties.
GROUND THREE
The learned Trial Judge erred in law and thus occasioned a miscarriage of Justice when he held; without first properly evaluating the evidence of the Claimant vis–vis that of the Defendants:
?it is my view that the authentic exhibit is Exhibit ?B1?. Exhibit ?B1? was made when the Claimant had been given the land, and the area shown to him. Exhibit B1 in my view properly shows the area of the land that belongs to ISIAKA INDUSTRIES LTD?.
PARTICULARS OF ERROR
i. The bone of contention between the parties was not about the authenticity of Exhibit ?A? and ?B1?
?ii. Both Exhibit ?A? and ?B1? were tendered by the Claimant and admitted in evidence without any objection by the Defendants as to
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authenticity or otherwise.
iii. The learned Trial Judge did not evaluate the evidence of the parties before arriving at that verdict.
iv. The law imposes a duty on the Learned Trial Judge to evaluate the evidence of the parties before reaching a verdict on their claims, but he failed to do so.
GROUND FOUR
The learned trial Judge erred in law when he held as follows:
?Exhibit ?A? which is the bone of contention in this suit has been rejected, the Claimant cannot rely on same to say the Counter ? Claim of the Defendant is situate barred.?
PARTICULARS OF ERROR
i. The claimant only tendered Exhibit ?A? as part of the proof that a grant of 5.41 hectares was made to him by Mingi XI, the Amanyanabo of Nembe.
ii. The question of statute bar which the Claimant raised against the Defendants? Counter ? Claim did not rest on Exhibit ?A?.
iii. There was evidence before the Learned Trial Judge (independent of Exhibit ?A?) showing that the Counter ? Claim was statute barred.
GROUND FIVE
?The Learned Trial Judge
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misdirected himself in law and thereby occasioned a miscarriage of Justice, when he held:
?It is settled principle of law that a party committing an illegality cannot be allowed by the Court to benefit from same illegality, lest the Court will portray itself as an instrument See AFRICAN PETROLEUM LTD VS. JOHNSON (1987) 2 NWLR (PT 58) 625. The limitation law cannot therefore apply to a void act. The Claimant, it is my view has failed to prove his case on the balance of probability to entitle the Court to give judgment in his favour.
PARTICULARS OF MISDIRECTION
i. The principle of law that a party committing an illegality cannot be allowed by the Court to benefit from same, applies in cases where there is a proven case of illegality committed by the said party.
ii. In the case before the Learned Trial Judge, there was no where it was alleged or proved that the claimant committed an illegality that would disentitle him to the judgment of the Court.
?iii. There was no proven void act attributable to the Claimant that would have operated to defeat the Claimant?s challenge to the Defendants? Counter ? Claim as
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being statute barred.
GROUND SIX
The Learned Trial Judge erred in law when he held: ?In totality. The Counter-Claim of the Defendants succeeds and accordingly. I make the following Declaration?. Without first evaluating or properly evaluating the Evidence led by both parties with respect to the Counter Claim of the Defendants, and thereby occasioned a miscarriage of justice.
PARTICULARS OF ERROR
i. The Counter-Claim of the Defendants is a distinct and separate action, and it does not rest on the action of the Claimant.
ii. The failure of the claim(s) of the Claimant does not translate automatically into the success of the Defendants? counter-claim.
iii. Before coming to the verdict that the counter-claim of the Defendant succeeds, the Learned Trial Judge has a duty to evaluate the evidence of both parties with respect to the Counter Claim.
iv. The learned Trial Judge inexplicably abdicated the duty imposed on him by law to evaluate the evidence before coming to the verdict that the Counter-Claim of the Defendants succeeds.
GROUND SEVEN
?The Judgment of the Learned Trial Judge is
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against the weight of evidence before the Court.
The Appellant filed his brief of Argument on 27/08/2018 but it was deemed filed on 21/03/2019. The Respondent filed a notice of preliminary Objection on which was subsequently withdrawn and struck out on 14/05/2019. However, the Respondent brief of argument filed on 08/10/2018 was deemed filed on 21/03/2019.
From the seven grounds of appeal contained in the notice of appeal, five issues for determination were formulated by the Appellant. The issues are: –
1. Whether the Learned Trial judge was right in rejecting Exhibit ?A? when delivering his Judgment after it had been admitted in evidence and marked as an Exhibit by the Court on the basis that there was a tipex on the said Exhibit, without first affording the Appellant any opportunity to address the Court on the so called tipex. (Distilled from grounds 1 & 2)
2. Whether the Learned Trial Judge was right in coming to the conclusion that the authentic exhibit is Exhibit ?B1? and thus making that as the basis of his Judgment without an evaluation of the evidence led by the parties. (Ground 3)
?3. Whether
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the Learned Trial Judge was right in using only Exhibit ?A? to determine the very crucial issue of statute bar raised by the Appellant against the Respondent?s Counter Claim (Ground 4)
4. Whether the Learned Trial Judge did not misdirect himself in law when he relied on the cases of AFRICAN PETROLEUM LTD V. OWODUNNI (1991) 8 NWLR (PT 220) 391 @ 421; OIL FIELD SUPPLY CENTRE LTD V. JOHNSON (1987) 2 NWLR (PT 58) (625) (SIC) to hold that the limitation law cannot therefore apply to a void act when there was no legal Jurisdiction for such reliance (Ground 5).
5. Whether in totality the Learned Trial Judge failed to evaluate properly the case of the appellant vis–vis that the (sic) Respondents before dismissing the Claimants claim and granting the Defendant?s counter claim. (Grounds 6 and 7).
The Respondent adopted the issue for determination as formulated by the Appellant. This Court will also adopt the issues as formulated by the Appellant in the determination of this appeal.
In arguing issue one, learned counsel for the Appellant Fedude Zimughan, Esq., submitted that the learned trial Judge was wrong
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in rejecting Exhibit ?A? after it has been admitted on the ground that there was an alteration on the said exhibit by a tipex and no evidence was adduced to explain the reason for the tampering of the said Exhibit. Learned counsel further contended that raising the issue of tempering the exhibit with a tipex suo motu by the trial Court without affording parties an opportunity of addressing the Court is improper. He referred to OMONIYI V. ALABI (2015) 6 NWLR (PT 1456) 572; OGUEBEGO V. PDP (2016) 4 NWLR (PT 1503) 446; INEC V. OGBADIBO LOCAL GOVT. (2016) 3 NWLR (PT 1498) 167 and OLAOLU V. FRN (2016) 3 NWLR (PT 1498) 133.
Learned counsel further argue that the act of raising the issue suo motu and resolving same without affording parties an opportunity of addressing the Court on the issue raised amounted to a denial of fair hearing regards being had to the fact that the rejected Exhibit was made the bedrock of the trial courts? decision dismissing the Appellant?s Claim. He referred to INEC V. OGBADIBO LOCAL GOVT. (Supra); EGBUCHU V. CONTINENTAL MERCHANT BANK PLC (2018) 8 NWLR; T. E. S. T. INC. V. CHEVRON NIG LTD (2017) 11 NWLR
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(PT 1576) 187; AMADI V. CHINDA (2009) 10 NWLR (PT 1148) 107 and WAGBATSOMA V. FRN (2018) 8 NWLR (PT 1621) 199. Counsel urged the Court to resolve this issue in favour of the Appellant.
The Respondents? brief of argument was settled by C. A. Esi, Esq., and Learned counsel submitted on issue one that Exhibits A and B1 are central issues in the determination of the dispute and as such the trial Court must be satisfied with the documents. He referred to GBADAMOSI V. DAIRO (2007) 3 NWLR (PT 1021) 282 and AJIBOLA V. GEN. AJAYI (RTD) (2013) 12 SCNJ (PT II) 413.
Learned counsel stated that parties Joined issues on Exhibits A and B1 and the Respondents attacked Exhibit A and B1, accused the Appellant of making mistake, fraud and misrepresentation in Court. The trial Court is therefore perfectly right to assess the documents and arrive at its finding notwithstanding that the documents were earlier admitted in evidence, he referred toUGOJI V. ONUKOGU (2005) 16 NWLR (PT 950) 97 and OMEGA BANK (NIG) PLC V. OBC LTD (2005) 8 NWLR (PT 928) 547.
Learned counsel further submitted that the trial Court did not raise new issue or infringe the Appellants right to
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fair hearing. He argued that the position taken by the trial Court could serve as a consequential order as it has the right to do so as to give effect to its Judgment. He referred to AWONIYI V. THE REGD. TRUSTEES OF THE ROSICRUCIAN ORDER, AMORC NIG (2000) 10 NWLR (PT 676) 522 and IWUOHA V. NIPOST (2003) 110 LRCN 1622. Counsel urged the Court to resolve this issue in favour of the Respondents and against the Appellant.
RESOLUTION OF ISSUE ONE
The main complaint of the Appellant on this issue is the part of the decision of the trial Court on Exhibit A which is the survey plan of the land in dispute. The learned trial Judge held thus:
?The issue is whether the alleged grant of 5.41 hectares of swamp land to the complainant as represented on survey plan No TAO/RIV65/568 Portrays a valid grant.
A proper look at Exhibit A reveals that there is a tipex on which the figure 95 is inscribed. No explanation was offered as to how it has the tipex and 95 inscribed on it. This survey plan having been tempered (sic) with, I will attach no Probative value to it and would in the circumstance reject it and accordingly it is rejected and should be
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expunged and so rejected and expunged.”
The appellant forcefully argued that the trial Court has descended into the arena by raising an issue suo motu and resolving same without affording the parties an opportunity of addressing it on the issue. The Respondent however contended that the trial Court was perfectly right to have raised the issue in the manner it did.
It is to be noted that our Courts are not all together stopped from raising issues suo motu. Any Court can raise an issue suo motu which it feels would effectively resolve the dispute between parties. However, where a Court decides to raise an issue suo motu on an issue, facts of which are not in evidence, then it must as a matter of right invite parties to address it on the issue especially a party who will be adversely affected by the decision. See OSHODI V. EYIFUNMI (2000) 13 NWLR (PT 684) 298; MOJEKWU V. IWUCHUKWU (2004) LPELR 19030 and LEADERS & COMPANY LTD V. BAMAIYI (2010) LPELR 1771.
Now, the learned trial judge admitted Exhibit A in evidence, it follows therefore that the facts of its admission makes it an evidence before the trial Court. But it should be noted
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that the fact that an evidence is offered in a proceeding be it oral or documentary does not make that piece of evidence a gospel of truth with respect to the fact it seeks to establish. There are other hurdles to cross. The trial Court has the power to assess the credibility and veracity of the evidence before him. That is what evaluation of evidence entails.
Where documentary evidence is in issue, the trial Court still possesses the right to evaluate the contents thereof and come to a conclusion on whether a probative value should be ascribed to it or not. In that quest, the function of the trial Court is simply to evaluate the document on the strength of other evidence before him. This is so because the trial Court?s Judgment must be confined to issues of facts raised by the parties. See FINNIH V. IMADE (1992) 1 NWLR (PT 219) 511.
However, in the course of evaluating an evidence oral or documentary, the Courts are to be extra careful not to embark upon an extra judicial act without proper evidence laid before them. Courts are not entitled to substitute their own views for matters in contention in the absence of evidence. Independent
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examination of exhibits by trial Courts and even appellate Courts has its attendant problems and that led to the restatement of the legal position in the locus classicus DURUMINIYA V. COP (1961) NRNLR 70 where the Court held thus: –
?The magistrate examined the books, but apparently not in Court ? for the record does not show that he observed or was shown any entries in Court, except the few we have mentioned, and in examining them out of Court, as appears from his Judgment, he observed numerous points which ought to have been brought out in Court at the hearing but were not. In doing this, magistrate was not trying the case, he was investigating it.
A trial is not an investigation and investigation is not the function of a Court. A trial is the public demonstration and testing before a Court of the cases of the contending parties. The demonstration is by assertion and evidence and the testing is by cross examination and argument. The function of a Court is to decide between the parties on the basis of what has been so demonstrated and tested. What was demonstrated in Court at this trial failed to support the prosecution?s case and
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the magistrate should have dismissed the case. It was not part of his duty to do cloistered Justice by making an enquiry into the case outside Court not even by the examination of documents which were in evidence, when the documents had not been examined in Court and the Magistrate?s examination disclosed things that had not been brought out and exposed to test in Court or were not things that, at least must have been noticed in Court. The Supreme Court has placed its stamp of approval on the above dictum of the High Court in ONIBUDO & ORS V. AKIBU & ORS (1982) LPELR 2679 @ 30; per Bello JSC (of blessed Memory) where he stated that:-
It needs to be emphasized that the duty of a Court is to decide between the parties on the basis of what has been demonstrated, tested, canvassed and argued in Court. It is not the duty of the Court to do Cloistered Justice by making an enquiry into the case outside Court even if such enquiry is limited to examination of documents which were in evidence, when the documents had not been examined in Court and their examination out of Court disclosed matters that had not been brought out and exposed to test
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in Court and were not such matters that, at least, must have been noticed in Court.”
Now, what the learned trial Judge did was to examine Exhibit A in the cool recess of his chambers and detected that the date appearing on the said exhibit has been tempered with a tipex and proceeded to reject the document he had earlier on admitted. It is to be noted that Exhibit A was tendered and admitted without any objection from the Respondent and neither in the deposition of CW1 nor under cross examination did the issue of alteration on the date therein arose. It follows therefore that the trial Court raised this issue suo motu and proceeded to resolved same without affording the parties an opportunity of addressing it on the issue. In SAADU & ANOR V. AFOLABI & ORS (2012) LPELR 7873 @ 105; Nwezie, JCA (as he then was) held that;
He is not allowed to act on what he discovered in such a document in relation to an issue when that was not supported by evidence or was not brought to the notice of the parties to be agitated in the usual adversarial procedure.”
Furthermore, in ADEKUNLE V. UBA PLC (2016) LPELR 41124 @
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56-57; Tsammani, JCA held that: –
while it is not in doubt that a trial Court has the liberty to evaluate and give weight or evidential value to any piece of evidence, oral or documentary duly proved before it, such evaluation should not be used as a tool to discountenanced a piece of evidence which has been duly proved and admitted before it, especially where that piece of evidence was admitted without objection. Accordingly where the Court desires to reject or discountenanced a piece of document duly pleaded, proved and admitted in evidence on grounds not canvassed by parties, he has a duty to invite counsel to address it on it before acting on the document. If the Court suo muto raises and resolves such issue in the determination of the dispute between the parties, the party damnified by the finding of the Court will be right to complain of the breach of fair hearing. In the instant case, it is my view which I hold that the learned trial Judge erred when he suo motu raised the issue of legitimacy of Exhibits D4 and D5, which he equated to having been fraudulently made, resolve same, contrary to the case presented before him in respect
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of those exhibits.”
See SANI V. KOGI STATE HOUSE OF ASSEMBLY & ORS (2019) LPELR 46404; OMONIYI V. ALABI (2015) 6 NWLR (PT. 1456) 572; BORNO HOLDING COMPANY LTD V. BOGODO (1971) 1 ALL NLR 324 and OWE V. OSHINBAJO (1965) 1 ALL NLR 72.
Exhibit A rejected by the trial Court in its Judgment is central to the Appellant?s case before the trial Court; this fact was admitted to, even by the Respondents in their brief of Argument. It was admitted without objection, yet the trial Court rejected same in its Judgment on the ground that it has been altered or tampered with a tipex. That fact was not in the pleadings of either party. More so, no explanatory evidence was led by either party as to the purported alteration and yet the trial Court raised the issue suo motu without inviting parties to address the Court on the issue. Any issue raised by the Court suo motu capable of rendering a document tendered and admitted in evidence to be rejected by the Court in its Judgment must be regarded as weighty as to warrant the trial Court to invite parties to address it before a just resolution of the same issue can be made. Failure to so do as in the
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present appeal is tantamount to doing cloistered Justice and the Appellant is within his right to complain of the breach of his right to fair hearing. The trial Court is therefore in grave error to have raised the issue of altering of Exhibit A suo motu, proceeded to resolve same behind the back of the parties.
The consequence of the course taken by the trial Court is that Appellant?s right to fair hearing was clearly in breach and if I may add, where a hearing or trial is conducted without affording parties an opportunity of being heard where they must be heard, then any decision on the issue no matter how well conducted will be regarded a nullity and would be set aside by an appellate court. See PEACE MASS TRANSIT LTD V. FCT & ORS (2014) LPELR 23740; KANJAL V. IFOP (2013) LPELR 22158 and DAN ILLELA & ANOR V. BAGUDO (2018) LPELR 44659.
In the present appeal, having found that the trial Court was in error to have raised a new issue suo motu and proceeded to resolve same without affording the parties an opportunity of addressing it on the new issue raised, it is clear that the Appellant?s right to fair hearing is in breach which
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renders the whole trial and subsequent Judgment delivered by the trial Court a nullity.
Accordingly, this appeal is meritorious and it succeeds on this issue alone. Having declared the trial a nullity, there is no need to delve into other issues. The appeal is hereby allowed. The Judgment of the trial Court in suit no YHC/219/2013 is hereby declared a nullity and accordingly set aside. An order of retrial is hereby made. The case is remitted back to the Hon. Chief Judge of Bayelsa State to be assigned to another Judge other than Bonfini, J.
ISAIAH OLUFEMI AKEJU, J.C.A.: I had the opportunity of reading the Judgment of my learned brother, ABUBAKAR MUAZU LAMIDO JCA before it was delivered. I agree with the reasoning and conclusion of my learned brother. I find merit in the appeal and I allow it. I abide by the consequential orders.
BITRUS GYARAZAMA SANGA, J.C.A.: I have read the draft of the judgment just pronounced by my learned brother, ABUBAKAR MUAZU LAMIDO JCA. I agree with and adopt the finding and conclusion in the leading judgment that this appeal is meritorious for the singular reason that the
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learned trial Judge did not give the claimant (now Appellant) a fair hearing when he considered Exhibit ?A? found that ?there is a tipex on which the figure 95 is inscribed,? and suo motu rejected after it was tendered without objection by the Respondents and admitted in evidence. For this and a more detailed finding in the leading judgment. I also allow this appeal and abide by the order as to cost.
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Appearances:
F. Zimughan, Esq. with him, O. I. BobimanuelFor Appellant(s)
E. J. Taribo, Esq.For Respondent(s)
Appearances
F. Zimughan, Esq. with him, O. I. BobimanuelFor Appellant
AND
E. J. Taribo, Esq.For Respondent
