ALHAJI MANSUR AHMED & ORS v. THE REGISTERED TRUSTEES OF ARCHDIOCESE OF KADUNA OF THE ROMAN CATHOLIC CHURCH
(2019) LCN/4873(SC)
In The Supreme Court of Nigeria
On Friday, the 11th day of January, 2019
SC.365/2007
RATIO
WHETHER A PARTY WHO DECIDED NOT TO CALL EVIDENCE AND RESTED ITS CASE ON THE DEFENCE OF THE OTHER PARTY IN A SUIT, CAN ALLEGE OF BREACH OF HIS RIGHT TO FAIR HEARING
A party has a choice in the mode and manner of conducting its defence in a suit. What is paramount is that the trial Court must have afforded all parties equal opportunity to present or defend their cases. The lead judgement of Jega JCA (of blessed memory) says it all. I quote: “It is also worthy of note that the Appellant filed a one hundred and eleven paragraph averments in their joint Statement of Defence as amended and claimed seven declaratory reliefs. The Appellant never led a dot of evidence to back the one hundred and eleven averments (sic) in their pleadings. It is trite to say that the effect of a failure to lead evidence in support of any averment in a pleading is that such a pleading is deemed to have been abandoned. See ABUSOMWAN VS M.B.N LTD (1987) 6 SCNJ 146 at 158; F.C.D.A. VS Naibi (1990) 3 NWLR (Pt.138) 270, BALOGUN VS AMUBIKHAHAN (1985) 3 NWLR (Pt. 11) 27, NWABUOKU VS OTTIH (1961) 1 All NLR 487, AKANBI VS ALAO (1989) 3 NWLR (Pt.108) 118.” The above finding of the lower Court is sound and unassailable in law. Rights of fair-hearing are such that must be exercised within the confines of law, regulatory and procedural provisions as may be applicable to the particular case. I have taken a great deal of time, efforts and space in this judgment to carefully review and distil facts and arguments of the parties on issue one, being the primary and central in this appeal. To start with, this issue revolves around the cardinal principle of justice – fair hearing. The Court has over the years consistently maintained that the principle of fairness is sacrosanct in our judicial system and it must as a matter of constitutional obligation be observed by a judicial umpire. The Supreme Court in ADIGUN VS A.G, OYO STATE (1987) NWLR (Pt. 53), Page 709 paragraph G, per Obaseki, JSC further had this to say on principles of natural Justice; “If the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at, in the absence of the departure from the essential principles of Justice, the decision must be declared to be no decision.” The principle of natural justice and fairness are crucial and sacrosanct in our judicial system and adjudicatory functions at all level of the judicial hierarchy. It must as a matter of constitutional obligation be observed by all judicial officers. This is because fairness and natural justice requires that a party to a cause, or a party who ought reasonably to be a party in the suit, must be given the opportunity to put forward his case or defence freely and fully. See KANO NATIVE AUTHORITY VS RAPHAEL OBIORA (1959) 4 FSC 226; (1959) SCNLR 577 cited with approval by Iguh, JSC in EKIYOR & ANOR. VS BOMOR (1997) 9 NWLR (Pt. 519) 1 at 14. The above reinforces the need to do substantial justice irrespective of provocation or procedural obstacles hurled on the path of a Judge on the highway of justice. The principle of fair hearing as enshrined under the Constitution of the Federal Republic of Nigeria, 1999 as amended (CFRN, 1999) also leaves the Court with little choice in ensuring fair- hearing. Section 36 (1) of the CFRN, 1999 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 a manner as to secure its independence and impartiality.” The question of fairness of proceedings is quite separate from the question of the merit of the trial Court decision. When a question of fairness of hearing arises in a case, the appellate Court has a duty to scrutinise the proceedings to see whether the result of the case would have been the same even if the breach of the principle of fair hearing had not occurred. It is immaterial if, speculatively, the same decision would have been arrived at had a hearing not tainted by unfairness this is because, by its application, a breach of fair-hearing leads to the inevitable conclusion that ‘an unfair method cannot produce a fair result. The proper thing must be done by sending the case back for re- trial or re-hearing. See IDAKWO VS EJIGA (2005) 48 W.R.N 23 where this Court opined on the duty of Court where question of fair hearing arises; Per Ayoola, JSC (PP 31-32) lines 25-40. A judicial proceeding is liable to be set-aside or reversed on the slightest likelihood of bias. This Court has a firm and settled position for determining if there is likelihood of bias. In ABIOLA VS FEDERAL REPUBLIC OF NIGERIA (1995) LPELR- 41 as follows, this Court held that: “… In considering whether there was a real likelihood of bias, the Court does not look at the mind of the chairman of the Tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right minded persons would think that, in the circumstances, there was a real likelihood of bias, on his part, then he should not sit. And if he does sit, his decision cannot stand.” Per BELLO, C.J.N. (P. 15, paras. A-D).” The Court went further to hold thus; “There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The Court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence, and confidence is destroyed when right-minded people go away thinking the Judge was biased.” Per BELLO, C.J.N. (Pp. 15- 16, paras. F-A).” What transpired in this appeal is that the Appellant elected not to call evidence and rested their case on the defence of the Respondent. This, in my considered view does not amount to denial of right of fair-hearing as the Appellant had wrongly alleged. As rightly held by the lower Court, the effect of failure to lead evidence on averments is that the pleadings are deemed abandoned. This is not a new law, and cannot by stretch of imagination amount to a breach of fair-hearing. The trial Court did not deny the right to the Appellants; if at all, the Appellants “denied” the rights to themselves. PER SIDI DAUDA BAGE, J.S.C.
WHETHER A COUNSEL’S ADDRESS CAN TAKE THE PLACE OF EVIDENCE
…the law is settled that, Counsel’s address no matter how sound and logical, should never take the place of evidence. See REYNOLDS CONSTRUCTION CO. VS R.B.B (1993) 6 NWLR (Pt. 297) 122, at pa 1228; ARCHIBONG VS EDAK (2006) 7 NWLR (Pt. 980) 485, at page 502. PER SIDI DAUDA BAGE, J.S.C.
CIRCUMSTANCE UNDER WHICH THE SUPREME COURT WILL INTERFERE WITH THE CONCURRENT FINDINGS OF FACTS MADE BY THE TRIAL COURT AND THE COURT OF APPEAL
Concurrent finding of the two Courts below are sound and proper. The Supreme Court will only interfere with concurrent findings of facts made by the trial Court and the Court of Appeal where such findings are perverse; or are not supported by the evidence; or are reached as a result of a wrong approach to the evidence; or as a result of a wrong application of evidence; or as a result of a wrong application of any principle of substantive law or procedure. None is the case in the instant appeal. See ARABAMBI VS ADVANCE BEVERAGES IND. LTD. (2005) 19 NWLR (Pt. 959) 1 Per Onnoghen, J.S.C (P. 46, C-E). See Also OCHIBA VS STATE 2011 12 SC (Pt. IV) P.79.” Per Rhodes-Vivour, J.S.C. (Pp. 51- 52, Paras. F-B). See also CAMEROON AIRLINES VS OTUTUIZU 2011 12 SC (Pt.III) P.200; OLOWU VS NIG. NAVY 2011 12 SC (Pt.II) P.1; AROWOLO VS OLOWOOKERE & 2 ORS. 2011 11-12 SC (Pt.II) P.98. There are two concurrent finding of facts of the lower Courts on the issue in this appeal. It has always been the practice of this Court in such circumstances to decline to review the evidence a third time unless there is proof of miscarriage of justice or a violation of some principle of law or procedure, or if the finding is/was perverse. See CAMEROON AIRLINES VS OTUTUIZU 2011 12 SC (Pt.III) p. 200; OLOWU VS NIG. NAVY 2011 12 SC (Pt.II) p.1 AROWOLO VS OLOWOOKERE & 2 ORS. 2011 11-12 SC (Pt.II) p.9; OCHIBA VS STATE 2011 12 SC (Pt.iv) P.79.” Per Rhodes-Vivour, J.S.C. (Pp. 51-52, paras. F-B). PER SIDI DAUDA BAGE, J.S.C.
WHETHER THE PROVISIONS OF AN EXISTING LAW CAN OUSTS THE JURISDICTION OF A COURT VESTED IN IT BY THE PROVISIONS OF THE NIGERIAN CONSTITUTION WITH RESPECT TO THE EFFECT OF THE PROVISIONS OF REGULATION 5 (1) OF THE EDUCATION (GENERAL) REGULATIONS 1964, NNLN 62 OF 1964 ON THE POWERS AND JURISDICTION OF THE HIGH COURT TO HEAR AND DETERMINE ANY SUIT WITHIN ITS JUDICIAL POWERS UNDER SECTION 6 (6) (A) & (B) AND 236 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA 1999
This issue is somewhat finally settled and may not warrant citing any legal authorities. The Constitution is the Supreme law of the land. The Constitution confers jurisdiction in the Court. By the combined provisions of Section 1 (1) and (3) of the Nigerian Constitution, any law or enactment that contradicts the provisions of the Nigerian Constitution shall, to the extent of its inconsistency, be null and void. Thus, the provisions of Regulation 5 (1) of the Education (General) Regulations 1964, NNLN 62 of 1964, an existing law, cannot oust the judicial powers and jurisdiction of the High Court of Justice Kaduna State over the first and second claims of the plaintiff, as conferred by Section 6 (6) (a) & (b) and 236 of the Constitution of the Federal Republic of Nigeria 1999. The Respondent’s contention that, by virtue of Section 6(6)(a)&(b) of the Constitution, the High Court is vested with constitutional powers and jurisdiction to hear and determine this suit notwithstanding the provisions of Education Regulation 1964 is sound, logical and valid, being the position of the law. See OLU OF WARRI VS KPEREGBEYI (1994) 4 NWLR (Pt. 339) 416 and NANGIBO VS OKAFOR (2003) 14 NWLR (Pt. 839) at 78. PER SIDI DAUDA BAGE, J.S.C.
JUSTICES
WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
PAUL ADAMU GALUMJE Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
Between
- ALHAJI MANSUR AHMED
2. MRS. DOROTHY AJIJOLA
3. KADUNA ILES LIMITED
4. H. H. HOLDINGS
(The representatives of Debenture Holders and other contributors of Sacred Heart School, Kaduna) Appellant(s)
AND
THE REGISTERED TRUSTEES OF ARCHDIOCESE OF KADUNA OF THE ROMAN CATHOLIC CHURCH Respondent(s)
SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): This is an appeal against the Judgment of the Court of Appeal, Kaduna delivered on 23rd February, 2006 dismissing the appeal of the Appellants from the decision of the High Court of Justice, Kaduna State delivered on 15th May, 1987 in Suit No. KDH/256/84. The dispute between the parties relates to and concerns the ownership and the right of control and management of Sacred Heart Primary School, Independence Way, Kaduna.
In its Judgment, the lower Court dismissed the appeal of the Appellants and affirmed the Judgement of the trial Court. Being dissatisfied, the Appellants have further filed final appeal to this Court vide their Notice of Appeal dated 17th March, 2006 on six grounds. The Appellant have filed an Amended Notice of Appeal dated 27th October, 2017, which was deemed filed on 31st October, 2017.
SUMMARY OF FACTS:
The present Respondent, as Plaintiff in the trial Court commenced an action against the Appellants as Defendants and claimed reliefs listed in the Amended Statement of claim dated 7th July, 1986 at pages 17-18 of the Record of Appeal.
1
At trial, pleadings were ordered and duly exchanged. At the hearing of the suit, the Plaintiff called three witnesses who testified and tendered documents. The Appellants did not offer any form of evidence in support of their defense and rested their case on that of the plaintiff (now Respondent)
The trial Judge delivered its judgment in the case on 15th May, 1987 and granted the reliefs sought by the Respondent herein. Being dissatisfied with the Judgment, the Appellants filed an appeal at the Court of Appeal, Kaduna Division. The lower Court upheld the Judgment of the trial Court leading to the instant appeal brought as an expression of displeasure at the Judgment of the lower Court.
ISSUES FOR DETERMINATION:
The Appellant formulated five (5) issues for determination at pages 2-3 of the Amended Appellants’ Brief of Argument, thus:
“(1) Whether the Court of Appeal was correct when it failed to consider the Appellants amended statement of defence dated 4th August 1986 in delivering its judgment and so denied the Appellant fair hearing.
(2) Whether the Court of Appeal was right when it held that the proper plaintiff was in Court in view of the amendment granted by the Court of Appeal to the change in name of the Plaintiff. If so, what was the proper order to make regarding a retrial in these circumstances
(3) Whether considering the evidence before the Court, the Court of Appeal ought to have
2
held that the Respondent automatically took charge of all the properties belonging Registered Trustee of the Prefecture Apostolic of the Roman Catholic Church Kaduna where there was no evidence of transfer of ownership, authority or a valid change of name to the Respondent (sic).
(4) Whether the Court of Appeal was right when it concluded that the School is question is in fact landed property which the Respondent could own.
(5) Whether the Court of Appeal ought to have struck-out this case due to the combined effect of Section 5(10) of the Education (General) Regulation, 1964, NNLN 62 of 1964 and Post-Primary Institution Edict No. 1 of 1972 of the North Central State applicable to Kaduna.”
On its part, the Respondent formulated four (4) issues, thus:
“(1) Whether in view of the finding and concurrent conclusion of both trial Court and Court of Appeal that the Appellants who had made a
3
deliberate choice of not adducing any iota of evidence in support of their amended statement of Defence which was deemed abandoned were in the circumstances of this appeal denied fair hearing (Ground 1).
(2) Whether in the circumstances of this case, it is permissible or open for the Appellants to make the prayer at this stage that the case should be sent back to the trial High Court for retrial on the merits so as to enable them adduce rebuttal evidence which right or opportunity they had deliberately waived during the earlier trial (Ground 4).
(3) Whether in the circumstances of this case the concurrent findings and conclusion of the Trial High Court as affirmed by the Court of Appeal to the effect that the Applicant had proved its ownership or proprietorship of the disputed primary school is warranted and sustainable (Grounds 2, 3, and 8).
(4) Whether the provision of Regulation 5(1) of the Education (General) Regulations 1964, NNLN 62 of 1964, an existing law, are capable of ousting the judicial powers and jurisdiction of the High Court of Justice
4
Kaduna State over the first and second claims of the plaintiff, as conferred by Section 6(6) (a) & (b) and 236 of the Constitution of the Federal Republic of Nigeria 1999 (Ground 6).”
The contention of the Appellants on issue one above was that the Appellants were denied fair hearing when the Court below failed to consider any of the averments raised in the Amended Statement of Defence dated 4th August, 1986. Fair hearing, the Appellants submit, envisages that both parties to a case are given an opportunity of presenting their respective cases without let or hindrance and that the Court should be fair and impartial without showing any degree of bias against any of the parties. See ALSTHOM S.A. VS SARAKI (2005) 3 NWLR (Pt.911) 208, ATANO & ANOR VS ATTORNEY GENERAL BENDEL STATE (1988) 1 NSCC.
The Appellants contended that by deeming the statement of defence abandoned is a negation of and breach of fair hearing. On this proposition, the Appellants cited the case of GATAU VS ABU (2005) All FWLR (Pt. 278) 1186; AGBAHOMOVO VS EDUYEGBE (1999) 2 SCNJ, 94; (1999) 3 NWLR (Pt. 594) 170; and IDAKWO VS EJIGA (2002) 23 NWLR (Pt.783) at 167 and submitted that Appellants’ right of fair hearing had been breached in this case.
5
On issue two, the Appellants submitted that the lower Court was wrong in holding that proper Plaintiff was in Court in view of amendment granted by the Court to change the name of the Plaintiff. The Appellants contended that by the amendment, fundamental changes had been brought to the nature of the case, citing the case of OGIDI VS EGBA (1999) 6 SCN at page 138, OKOLO VS UBN (1999) 6 SCNJ at 201-202, paras 35-5, per Ejiwunmi JSC.
On issue three, the Appellants argued that the lower Court was wrong to have held that the Respondent automatically took charge of all properties belonging to the Registered Trustee of the Prefecture Apostolic of the Roman Catholic Church Kaduna in the absence of evidence of such transfer. The Appellant contended that what transpired was actually total creation of a new body in the person of the Respondent rather than in the alteration or change in its name. Moreover, the Appellants contended, no evidence was led as to what has become the fate of the existing corporation sole. To buttress this contention, the Appellants relied on the case
6
of Registered Trustees, N.A.C.H.P.N VS M.H.W.U.N (2005) All FWLR (Pt. 412) particularly at 1021.
On issue three, the Appellants raised the issue as to whether the Court of Appeal was right to have held that the school in question is in fact landed property which the Respondent could own. They further contended that the learned Justice of the Court below did not appreciate the point being made in Section 16(1) (a)(iii), (iv) and (b) of the Kaduna State Education Law, which did not address the definition of a school or an institution. The Appellants submitted further that ownership of the property where the school premises was built is different from the ownership of the school itself, and urged this Court to so hold.
On issue five formulated by the Appellants, it is contended that the Court of Appeal ought to have struck-out this case due to the combined effect of Section 5 (10) of the Education (General) Regulation, 1964, NNLN 62 of 1964 and Post-Primary Institution Edict No. 1 of 1972 of the North Central State applicable to Kaduna. The Appellants contended that the Court of Appeal missed the point when it relied on the case of A.G. FEDERATION VS SODE (1990) 1
7
NWLR (Pt. 128) 500 at 517 in juxtaposing the effect of the above law on the provisions of Section 274(1) of the 1979 Constitution of the Federal Republic of Nigeria. In their final submission, the Appellants urged this Court to resolve all five issues in their favour and set-aside the Judgments of the trial Court and that of the lower Court which affirmed the former.
On its part, the Respondent argued in respect of its issue one that contrary to the assertion of the Appellants, the lower Court had properly evaluated the fact and evidence before it, and at the end of it all, the Court of Appeal affirmed the decision of the trial Court that the failure to adduce evidence by the defence in support of their pleadings meant in law that they were deemed to have been abandoned their pleadings. The Respondent made copious reference to lead judgment of Jega, JCA (of blessed memory) at page 458, lines 11-23 of the record, and further cited the case Dagaci of DERE VS DAGACI of Ebwa (2006) 7 NWLR (Pt. 979) 382 at pages 429-430, para G-G, 434-435, par G-B and para A-D and AFEGBAI VS A.G. EDO STATE & ANOR (2001) 7 SCNJ 438 and ISERU VS CATHOLIC BISHOP OF WARRI
8
DIOCESE (1997) 4 SCNJ 102 and SANUMI VS MILITARY GOVERNOR OF ONDO STATE & ORS (1998) 1 SCJ at 1.
The Respondent contended further that the Appellants were afforded the opportunity of fair hearing within the contemplation of Section 36(1) of the Constitution (then Section 33 (1) of the 1979 Constitution. On this position, the Respondent relied on the decision of this Court in MAGIT VS UNIVERSITY OF AGRICULTURE MAKURDI (2005) 19 NWLR (Pt. 959) 211 per Ogbuagu JSC, at p 243-244, para F-A; INAKOJU VS ADELEKE (2007) 4 NWLR (pt. 423) at pages 620-221, paras G-F, NEWSWATCH COMMUNICATIONS LTD VS ATTA (2006) 12 NWLR (Pt.993) 144, and urged this Court to resolve the issue in favour of the Respondent.
On issue two, the Respondent contended that in the circumstances of this case, it is not permissible or open for the Appellants to make the prayer at this stage that the case should be sent back to the trial High Court for retrial on the merits so as to enable them adduce rebuttal evidence which right or opportunity they had deliberately waived during the earlier trial. By taking a strategic and deliberate decision to rest the defence on the
9
case of the Plaintiff, the Respondent cannot be heard to complain or attempt to clog the hands of justice by requesting retrial. The Respondent cited the case of AKANBI VS ALAO (1989) 3 NWLR (Pt.108) at 118; per Craig, JSC at page 140, para A-G; ODJEVWEDJE VS ECHANOKPE (1987) 1 NWLR (Pt. 52) 633 at page 65, para C-D and SHANU VS AFRIBANK (NIG) PLC (2002) 17 NWLR (Pt. 795) 185 SC, at pages 218-219, para H-D, 200, para E-H, 220, para D-E and 221, paras B-E, to buttress its arguments on this issue.
To a large extent, the Respondent’s argument on this issue (issue 3) had been substantially covered and dealt with under its issue No. 1 on concurrent findings and conclusion of the trial High Court as affirmed by the Court of Appeal and ownership or proprietorship of the disputed primary school. This leaves me with issue four formulated by the Respondent.
Issue four is the converse submission of the Appellants’ issue one, on whether the provisions of Regulation 5 (1) of the Education (General) Regulations 1964, NNLN 62 of 1964, an existing law, are capable of ousting the judicial powers
10
and jurisdiction of the High Court of Justice Kaduna State over the first and second claims of the plaintiff, as conferred by Section 6 (6) (a) & (b) and 236 of the Constitution of the Federal Republic of Nigeria 1999. The simple contention of the Respondent on this issue is that, by virtue of Section 6 (6) (a)&(b) of the Constitution, the High Court is vested with constitutional powers and jurisdiction to hear and determine this suit notwithstanding the provisions of Education Regulation 1964. On this contention, the Respondent relied on OLU OF WARRI VS KPEREGBEYI (1994) 4 NWLR (Pt. 339) 416 and NANGIBO VS OKAFOR (2003) 14 NWLR (Pt. 839) at 78.
In sum, the Respondent urged this Court to resolve all four issues it has formulated in its favour and dismiss the appeal by upholding the concurrent findings and judgments of the trial Court and the lower Court.
CONSIDERATION OF ARGUMENTS AND RESOLUTION OF ISSUES:
Having examined and analysed the arguments made by the parties in this appeal on the respective issues they have formulated, I’m of the considered view that this appeal raises three main issues.
11
Thus, for the purpose of this appeal, I’ve narrowed down the issues to three, namely:
“(1) Whether the right of Appellants as to fair hearing has been breached by deliberate choice of not adducing any evidence in support of amended statement of Defence which was deemed abandoned.
(2) Whether in the circumstances of this case, the concurrent findings and conclusion of the trial High Court and Court of Appeal on ownership or proprietorship of the disputed primary can be disturbed.
(3) Whether the provisions of Regulation 5 (1) of the Education (General) Regulations 1964, NNLN 62 of 1964, are capable of ousting the judicial powers and jurisdiction of the High Court of Justice Kaduna State by virtue of the combined effect of Section 6 (6)(a) & (b) and 236 of the Constitution of the Federal Republic of Nigeria 1999.”
ISSUE ONE:
“(1) Whether the right of Appellants as to fair hearing has been breached by deliberate choice of not adducing any evidence in support of amended statement of Defence which was deemed abandoned.”
A party has a choice in the mode and manner of conducting its defence in a suit.
12
What is paramount is that the trial Court must have afforded all parties equal opportunity to present or defend their cases. The lead judgement of Jega JCA (of blessed memory) says it all. I quote:
“It is also worthy of note that the Appellant filed a one hundred and eleven paragraph averments in their joint Statement of Defence as amended and claimed seven declaratory reliefs. The Appellant never led a dot of evidence to back the one hundred and eleven averments (sic) in their pleadings. It is trite to say that the effect of a failure to lead evidence in support of any averment in a pleading is that such a pleading is deemed to have been abandoned. See ABUSOMWAN VS M.B.N LTD (1987) 6 SCNJ 146 at 158; F.C.D.A. VS Naibi (1990) 3 NWLR (Pt.138) 270, BALOGUN VS AMUBIKANHAN (1985) 3 NWLR (Pt. 11) 27, NWABUOKU VS OTTIH (1961) 1 All NLR 487, AKANBI VS ALAO (1989) 3 NWLR (Pt.108) 118.”
The above finding of the lower Court is sound and unassailable in law. Rights of fair-hearing are such that must be exercised within the confines of law, regulatory and procedural provisions as may be applicable to the particular case.
13
I have taken a great deal of time, efforts and space in this judgment to carefully review and distil facts and arguments of the parties on issue one, being the primary and central in this appeal. To start with, this issue revolves around the cardinal principle of justice – fair hearing. The Court has over the years consistently maintained that the principle of fairness is sacrosanct in our judicial system and it must as a matter of constitutional obligation be observed by a judicial umpire. The Supreme Court in ADIGUN VS A.G, OYO STATE (1987) NWLR (Pt. 53), Page 709 paragraph G, per Obaseki, JSC further had this to say on principles of natural Justice;
“If the principles of natural justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at, in the absence of the departure from the essential principles of Justice, the decision must be declared to be no decision.”
The principle of natural justice and fairness are crucial and sacrosanct in our judicial system and adjudicatory functions at all level of the judicial hierarchy. It must as a matter of constitutional obligation be observed by all judicial officers.
14
This is because fairness and natural justice requires that a party to a cause, or a party who ought reasonably to be a party in the suit, must be given the opportunity to put forward his case or defence freely and fully. See KANO NATIVE AUTHORITY VS RAPHAEL OBIORA (1959) 4 FSC 226; (1959) SCNLR 577 cited with approval by Iguh, JSC in EKIYOR & ANOR. VS BOMOR (1997) 9 NWLR (Pt. 519) 1 at 14.
The above reinforces the need to do substantial justice irrespective of provocation or procedural obstacles hurled on the path of a Judge on the highway of justice. The principle of fair hearing as enshrined under the Constitution of the Federal Republic of Nigeria, 1999 as amended (CFRN, 1999) also leaves the Court with little choice in ensuring fair-hearing. Section 36 (1) of the CFRN, 1999 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 a manner as to secure its independence and impartiality.”
15
The question of fairness of proceedings is quite separate from the question of the merit of the trial Court decision. When a question of fairness of hearing arises in a case, the appellate Court has a duty to scrutinise the proceedings to see whether the result of the case would have been the same even if the breach of the principle of fair hearing had not occurred. It is immaterial if, speculatively, the same decision would have been arrived at had a hearing not tainted by unfairness this is because, by its application, a breach of fair-hearing leads to the inevitable conclusion that ‘an unfair method cannot produce a fair result. The proper thing must be done by sending the case back for re-trial or re-hearing. See IDAKWO VS EJIGA (2005) 48 W.R.N 23 where this Court opined on the duty of Court where question of fair hearing arises; Per Ayoola, JSC (PP 31-32) lines 25-40.
A judicial proceeding is liable to be set-aside or reversed on the slightest likelihood of bias. This Court has a firm and settled position for determining if there is likelihood of bias. In ABIOLA VS FEDERAL REPUBLIC OF NIGERIA (1995) LPELR- 41 as follows, this Court held that:
“… In considering whether there was a real likelihood of bias, the Court does not look at the mind of the chairman of the Tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that he would, or did, in fact
16
favour one side at the expense of the other. The Court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless, if right minded persons would think that, in the circumstances, there was a real likelihood of bias, on his part, then he should not sit. And if he does sit, his decision cannot stand.” Per BELLO, C.J.N. (P. 15, paras. A-D).”
The Court went further to hold thus;
“There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would, or did, favour one side unfairly at the expense of the other. The Court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence, and confidence is destroyed when right-minded people go away thinking the Judge was biased.” Per BELLO, C.J.N. (Pp. 15- 16, paras. F-A).”
What transpired in this appeal is that the Appellant elected not to call evidence and rested their case on the defence of the Respondent.
17
This, in my considered view does not amount to denial of right of fair-hearing as the Appellant had wrongly alleged. As rightly held by the lower Court, the effect of failure to lead evidence on averments is that the pleadings are deemed abandoned. This is not a new law, and cannot by stretch of imagination amount to a breach of fair-hearing. The trial Court did not deny the right to the Appellants; if at all, the Appellants “denied” the rights to themselves. In view of this foregoing, I resolve issue of in favour of the Respondent.
ISSUE TWO:
“Whether in the circumstances of this case the concurrent findings and conclusion of the trial High Court and Court of Appeal on ownership or proprietorship of the disputed primary can be disturbed.”
There is enough facts and documentary evidence to show that the Respondent adduced credible oral and documentary evidence to establish that the disputed school belongs to the Archdiocese of Kaduna. However, the Appellants who made similar claim to the School tendered no evidence but merely rested their case on the Defence of the Respondent. While admitting that the Appellants’ Counsel made written
18
submission at trial, the law is settled that, Counsel’s address no matter how sound and logical, should never take the place of evidence. See REYNOLDS CONSTRUCTION CO. VS R.B.B (1993) 6 NWLR (Pt. 297) 122, at pa 1228; ARCHIBONG VS EDAK (2006) 7 NWLR (Pt. 980) 485, at page 502.
Concurrent finding of the two Courts below are sound and proper. The Supreme Court will only interfere with concurrent findings of facts made by the trial Court and the Court of Appeal where such findings are perverse; or are not supported by the evidence; or are reached as a result of a wrong approach to the evidence; or as a result of a wrong application of evidence; or as a result of a wrong application of any principle of substantive law or procedure. None is the case in the instant appeal. See ARABAMBI VS ADVANCE BEVERAGES IND. LTD. (2005) 19 NWLR (Pt. 959) 1 Per Onnoghen, J.S.C (P. 46, C-E). See Also OCHIBA VS STATE 2011 12 SC (Pt. IV) P.79.” Per Rhodes-Vivour, J.S.C. (Pp. 51- 52, Paras. F-B). See also CAMEROON AIRLINES VS OTUTUIZU 2011 12 SC (Pt.III) P.200; OLOWU VS NIG. NAVY 2011 12 SC (Pt.II) P.1;
19
AROWOLO VS OLOWOOKERE & 2 ORS. 2011 11-12 SC (Pt.II) P.98.
There are two concurrent finding of facts of the lower Courts on the issue in this appeal. It has always been the practice of this Court in such circumstances to decline to review the evidence a third time unless there is proof of miscarriage of justice or a violation of some principle of law or procedure, or if the finding is/was perverse. See CAMEROON AIRLINES VS OTUTUIZU 2011 12 SC (Pt.III) p. 200; OLOWU VS NIG. NAVY 2011 12 SC (Pt.II) p.1 AROWOLO VS OLOWOOKERE & 2 ORS. 2011 11-12 SC (Pt.II) p.9; OCHIBA VS STATE 2011 12 SC (Pt.iv) P.79.” Per Rhodes-Vivour, J.S.C. (Pp. 51-52, paras. F-B).
It is my considered view that the judgment of the trial Court cannot be faulted at all and the lower Court was right in affirming and endorsing the findings of the trial Court. This Court will not ordinarily interfere with the concurrent findings of fact of the lower and trial Courts unless it is shown that such findings are perverse and not based on the evidence led and accepted.
20
In this appeal, the Appellants have failed to convince me that this is a situation in which this Court should interfere. In this case, the decisions and concurrent findings of the trial and lower Courts remained unimpeachable. In view of this, I also resolve issue two in favour of the Respondent.
ISSUE THREE:
“Whether the provisions of Regulation 5 (1) of the Education (General) Regulations 1964, NNLN 62 of 1964, are capable of ousting the judicial powers and jurisdiction of the High Court of Justice Kaduna State by virtue of the combined effect of Section 6 (6) (a) & (b) and 236 of the Constitution of the Federal Republic of Nigeria 1999.”
This issue is somewhat finally settled and may not warrant citing any legal authorities. The Constitution is the Supreme law of the land. The Constitution confers jurisdiction in the Court. By the combined provisions of Section 1 (1) and (3) of the Nigerian Constitution, any law or enactment that contradicts the provisions of the Nigerian Constitution shall, to the extent of its inconsistency, be null and void. Thus, the provisions of Regulation 5 (1) of the Education (General) Regulations 1964, NNLN 62 of 1964, an
21
existing law, cannot oust the judicial powers and jurisdiction of the High Court of Justice Kaduna State over the first and second claims of the plaintiff, as conferred by Section 6 (6) (a) & (b) and 236 of the Constitution of the Federal Republic of Nigeria 1999.
The Respondent’s contention that, by virtue of Section 6(6)(a)&(b) of the Constitution, the High Court is vested with constitutional powers and jurisdiction to hear and determine this suit notwithstanding the provisions of Education Regulation 1964 is sound, logical and valid, being the position of the law. See OLU OF WARRI VS KPEREGBEYI (1994) 4 NWLR (Pt. 339) 416 and NANGIBO VS OKAFOR (2003) 14 NWLR (Pt. 839) at 78.
In sum, I also resolve issue three in favour of the Respondent. By necessary implications, all three issues formulated by me in this appeal are resolved against the Appellants in favour of the Respondent.
In view of the foregoing, I dismiss this appeal. I uphold concurrent findings and judgments of the trial Court and the lower Court. This appeal lacks merit and is hereby dismissed in its entirety. That will be the judgment of this Court. I make no order as to cost.
22
WALTER SAMUEL NKANU ONNOGHEN, C.J.N.: I read in draft the lead Judgment delivered by my learned brother – Bage JSC and I entirely agree with the reasons advanced for dismissing the appeal.
The findings of facts by the trial Court was affirmed on appeal to the Court below. It is therefore a case of concurrent finding of facts by the Courts below.
Appellant, in urging the Court to disturb the said concurrent finding, assumed an uphill task. He failed to discharge the burden of showing sufficient evidence for the Court to interfere with the finding. See Njoku & Ors. Vs. Eme & Ors. S. (1973) 5 SC. 293 at 306, Kale V. Coker (1982) 12 SC 252 at 271.
There is no reason assigned by learned counsel for appellants that the concurrent findings are either perverse, or there is a substantial error in substantive or procedural law, which, if left uncorrected, will lead to injustice. See LOKOYI & Anor. V. OLOJO (1983) 8 SC 61 at 68.
For the above and the fuller reasons adumbrated in the lead Judgment, I agree that the appeal be dismissed for want of merit and order accordingly.
23
I adopt the consequential orders in the lead Judgment including the order as to costs.
Appeal Dismissed.
MUSA DATTIJO MUHAMMAD, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother SIDI DAUDA BAGE JSC with whose reasoning and conclusion I entirely agree that the appeal lacks merit. I imbibe the fuller reasons articulated by His Lordship in dismissing the unmeritorious appeal.
It must be stressed that pleadings that have not been established by credible evidence are deemed abandoned. They go to no issue. See Miss Ezeanah V. Alhaji Atta (2004) 2 SCNJ 200 at 235, Newbreed Org Ltd V. Erhomosele (2006) 1984 (SC).
In the case at hand, the trial Court gave the respondent judgment on the basis of its pleadings and the evidence adduced in proof thereof. The appellants as defendants chose not to lead evidence in proof of their pleadings. The lower Court is right to have equally discountenanced the pleadings the appellants chose to rely on same not having been supported by evidence. See Jolayemi & Ors V. Olaoye & Anor (2004) LPELR-1625 (SC) and Ademeso V. Okoro & Ors (2005) LPELR-121 (SC).
24
Having themselves abandoned their cause, it is disingenuous for the appellants to accuse the two Courts below of having breached their right to fair hearing. Their right under Section 36 of the 1999 Constitution requires that they be given the opportunity to state their case and no more. If they choose to abandon their cause after the opportunity has been extended, to them they cannot, as it has now turned out, to legitimately make a case of breach of their right to fair hearing against the Courts. The issue of fair hearing is not a dogma. It remains a question of fact which in the instant case has not been made out by the appellants. The facts on record show clearly that parties were given equal opportunity to put their case to the Court before judgment was given. On that note, the appeal must fail. See Pam & Anor V Mohammed & Anor (2008) LPELR-2895 (SC) and The Federal Government of Nigeria & Ors V. Zebra Energy Ltd (2002) 18 NWLR (Pt. 798) 162.
It is for the foregoing and more so the fuller reasons contained in the lead judgment that I also dismiss the appeal. I abide by the consequential orders reflected in the lead judgment.
25
JOHN INYANG OKORO, J.S.C.: My learned brother, Bage, JSC obliged me a copy of the lead judgment he has just delivered and I entirely agree with him that this appeal is lacking in merit and ought to be dismissed. My learned brother has quite efficiently dealt with the issues raised in this appeal. I may not improve upon what has been done but I shall make a few comments in support of the judgment. The facts have already been stated in the lead judgment and I shall not repeat the exercise. I am of the opinion that the central issue in this appeal is “whether the appellants’ case suffered a miscarriage of justice at the two Courts below to warrant a review by this Court.”
It is instructive to note that at the trial Court, when the suit came up for hearing, the respondent (as plaintiff) called three witnesses who tendered documentary evidences to prove its case. On the other hand, these appellants decided not to lead any evidence in support of their pleadings. They elected to rest their case on that of the respondent. The trial judge in his judgment granted the reliefs sought by the
26
respondent, being the only party in the case who led evidence in support of its pleadings.
It is trite that pleadings are suggestion of counsel. They are not receivable as or tantamount to evidence. Indeed, the position of the Law is that averments in pleadings, unless admitted by the opposite party must be established by evidence failing which they must be discountenanced as unsubstantiated for they cannot be construed as evidence. See Odunsi v. Bamgbala (1995) 1 NWLR (Pt. 374) 641 at 656 – 657; Akanmu v. Adigun (1993) 7 NWLR (Pt. 304) 218 at 231 Akinfasile V. Ijosa (1960) 8 CNJ 447. In the case of Balogun v. Amubikahun (1989) 3 NWLR (Pt. 107) 18 SC, this Court held that:
“Averments in pleadings do not constitute evidence or proof. There is need to prove averments contained in a pleading by evidence unless otherwise admitted. Where no evidence is produced in support of pleading, the facts are deemed abandoned”. That being said, I am of the considered view, that the learned trial judge was right in law to grant the respondents’ reliefs, same not being controverted by any evidence led by the appellants. In law, the appellants are deemed to have
27
abandoned their pleadings having not led any form of evidence to support same.
I agree with my learned brother, Bage, JSC that the decision of the learned trial judge, upheld by the Court below does not amount to denial of appellants’ right of fair-hearing neither does it occasion a miscarriage of justice. It is true, and I so hold that the trial judge did not deny the appellants’ right to fair-hearing. They, on their own, abandoned their pleadings and rested their case on that of the respondent. They cannot blame any other person but themselves.
It is trite that this Court will only interfere with or review the concurrent findings of facts of lower Courts where there is proof that such finding of facts is perverse or there is a miscarriage of justice or there is a wrong application of any principle of law or procedure. In the instant case, I cannot find anywhere in the entire judgment of the learned trial judge, upheld by the Court below, where the learned trial judge misapplied the law to render the judgment perverse or occasion a miscarriage of justice
All the issues strenuously argued by the appellants before this Court have failed to prove
28
the allegation of denial of fair-hearing and miscarriage of justice against the concurrent findings of the two lower Courts and I see no reason to interfere with them. Therefore, I resolve the sole issue raised herein against the appellants in favour of the respondent.
I hold that this appeal is lacking in merit and is hereby dismissed by me. I also make no order as to costs.
Appeal Dismissed.
PAUL ADAMU GALUMJE, J.S.C.: I have had the privilege of reading in draft, the judgment just delivered by my Learned brother, Sidi Dauda Sage JSC and I agree with the reasoning contained therein and the conclusion arrived thereat. It is not in the character of this Court to interfere with the concurrent findings of the High Court and the Court of appeal in absence of special circumstances, such as where such findings are perverse. See Akpuenya v State (1976) 11 SC. 269; Igwe v State (1982) 9 SC. 174; Princent v State (2002) 18 NWLR (Pt. 798) 49.
The Appeal is without merit and it is accordingly dismissed by me as well. I endorse the consequential order on costs.
29
Appearances:
Benson with him, O. B. OsunbadeFor Appellant(s)
Atung with him, D. Toro and Q. E. SylvesterFor Respondent(s)
Appearances
Benson with him, O. B. OsunbadeFor Appellant
AND
Atung with him, D. Toro and Q. E. SylvesterFor Respondent
