ALHAJI UBA ABUBAKAR V. DAVID PWASPO
(2012)LCN/5410(CA)
In The Court of Appeal of Nigeria
On Friday, the 25th day of May, 2012
CA/J/219/1998
RATIO
APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS FINDINGS OF THE TRIAL COURT
In general parlance, an appellate Court will not ordinarily disturb the findings of fact of a trial court relating to credibility of witnesses and evaluation of evidence which are matters within the knowledge of the trial court who alone saw and heard the witnesses. See the Supreme Court case of EMENIMAYA VS. OKORJI (1987) 3 NWLR Pt 59 6 at 7 held F. PER PHILOMENA MBUA EKPE, J.C.A.
EVIDENCE: WHETHER A JUDGE CAN CALL ON WITNESS NOT CALLED BY EITHER SIDE
In some exceptional circumstances where confusion has arisen from the evidence before the court, the judge may with the acquiescence of the parties, call a witness not called by either side for the purpose of throwing more light on the case. Also, if and when the power is exercised, the party adversely affected by such testimony is entitled to cross-examine the witness. See ERIC ODOR V JAMES NWOSU (1974) 1 ALL NLR 478 at 479 PER PHILOMENA MBUA EKPE, J.C.A.
FAIR HEARING: MEANING OF FAIR HEARING
Fair hearing within the meaning of Section 36(1) of the 1999 Constitution means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties. It required the observance of the twin pillars of the rules of natural justice namely: audi alteram partem
See ESHENAKE V GBINIJE (2006) 1 NWLR (Pt 961) 288. PER PHILOMENA MBUA EKPE, J.C.A.
FAIR HEARING: ATTRIBUTES TO FAIR HEARING
The basic attributes to fair hearing include the fact that the Court shall hear both sides on all material issues in the case before arriving at a decision which may be prejudicial to any party in the case. See USANI V DUKE (2004) 7 NWLR (Pt 871) 116. PER PHILOMENA MBUA EKPE, J.C.A.
WORDS AND PHRASES: MEANING OF BIAS
The Oxford Advanced Dictionary 7th Edition had defined bias as:
“A strong feeling in favour of or against one group of people. Often not based on fair judgment. This has not been shown to be the case in the matter at hand. ” PER CLARA BATA OGUNBIYI J.C.A.
JUSTICES:
CLARA BATA OGUNBIYI Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
ALHAJI UBA ABUBAKAR – Appellant(s)
AND
DAVID PWASPO – Respondent(s)
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Justice J. S. Atsi of the High Court of Justice Jos. The Respondent herein was granted the following reliefs:
(a) A perpetual injunction restraining the Appellant.
(b) N15,000 as general damages with an order directing the appellant remove all blocks surrounding the mosque.
Being dissatisfied with the judgment, the Appellant has filed this appeal. The Respondents claims at the lower Court are on page 1 and 2 of the record of appeal while the judgment is on page 65 of the record of appeal. The parties both formulated three issues for determination distilled from the 2 grounds of appeal which are the same though couched differently. I shall however adopt the Respondents issues for determination which read as follows:
1. Whether the lower court was right in its judgment that the Appellant trespassed on the Respondent’s land by building a mosque thereon.
2. Whether there was evidence before the lower court to support the judgment in favour of the Respondent.
3. Whether the calling of an independent witness by the lower court violated the Appellant’s right of fair hearing.
The brief facts of this case are as follows:
The Respondent is the owner of the property known as No. KN 316 T. Angwan Rukuba, Jos. The Respondent bought the said properly in 1989 from one Alhassan Adamu, a muslim, who had kept a small portion of the premises as a private mosque and demarcated the said ground with stones. After the sale of the premises to the Respondent, the Appellant and his group continued to use the said portion of land as prayer ground and the Respondent not being of the same faith protested the use of the said premises which he claimed was part of his premises. After the acquisition of the property, by the Respondent, the Appellant and other muslin faithfuls erected a four course block work structure to replace the stones without the prior consent of the Respondent. The Appellant however claimed that the land upon which the mosque was built does not belong to the Respondent but that the area of land is government land.
Both the Appellant and the Respondent in the lower court called witnesses to support their claims and in the end the court deemed it necessary to call an independent witness to throw more light on certain facts. Both parties cross-examined the said witness after his testimony and the visit to the locus in quo. The court however found that the mosque was on part of the Respondent’s land and that the rest of the land was the Respondent’s government demarcated set back land which can only be developed with the consent of the Respondent.
The court below then entered judgment for the Respondent as per his claims, hence this appeal.
ISSUE NO. 1 Whether the lower court was right in its judgment that the Appellant trespassed on the Respondent’s land by building a mosque thereon.
Whether the lower court was right in its judgment that the Appellant trespassed on the Respondent’s land by building a mosque thereon.
Learned Counsel to the Appellant submitted that the subject matter of the dispute is a public mosque which could not have been sold to the Respondent. That the documentary evidence before the trial court did not show that the mosque in dispute was included in the sale transaction of the Respondent’s house. That the sale agreement and the site plan of the house bought by the Respondent did not include the mosque. He concluded on that point that the documentary evidence before the trial court ought to have been used as a hanger to assess the oral evidence adduced therein. He cited the cases of
1. Kimdey Vs Gongola State Government (1988) 2 NWLR (Part 77) 445 at 473,
2. Fashanu Vs Adekoya (1974) 6 SC 83; (1974) All NLR (Part 1) 35 and
3. Onibudo & Ors vs. Akibu & Ors (1982) 2 FNR 224 at 225 – 6 per Bello, J.S.C. (as he then was); (1982) 7 SC 60.
Learned Counsel further submitted that on the authority of Onibudo’s case (supra) the Respondent’s vendor could not have sold the mosque in dispute to the Respondent. That the Appellants contention that the mosque was in existence before the purchase of the house by the Appellant was proved by the Respondent’s witnesses in the lower court. See page 43 lines 27 – 29 of the record. He further cited the case of OJE v BABALOLA & Ors (1991) 5 SCNJ 110.
The Respondent submitted in reply that his case before the lower court was that he is the owner of the property situated and known as No. KA 316 T, at Angwan Rukuba, Jos where a place of worship which was originally demarcated with stones was later built up with four courses of block work. The Respondent again stated that he tendered exhibits Pwaspo 1 – 4 in proof of ownership of the land which the Appellant later claimed was government land. That the Appellant never called Alhaji Allhassan, the Respondent’s vendor to prove that the mosque was not part of the Respondent’s land. That the evidence of PW2 was that the Respondent had complained to him about the act of trespass by the moslem community of which the Appellant was the chairman, and that the Respondent asked the moslem community to stop erection of the 4 course block work structure, but that they refused despite the fact that they already had a mosque on another plot of land given to them by the community.
It is the further contention of Respondent’s Counsel that the area in dispute is undoubtedly not a public mosque but a private prayer place referred to as a musala. He referred to the evidence of PW2 who stated thus:
“The blocks arrangement was used for prayers by visitor that come to his house (That is Alhaji Alhassan, the respondent’s vendor.”
That PWS 1 & 2 were emphatic that the mosque was on the Respondent’s land when they stated thus in line 8 on pages 46 of the record thus:
“The area surrounded with blocks forms part of the area encompassing the plaintiff (Respondent’s) house.”
In a further submission by Respondent’s Counsel he stated that the Jos Metropolitan Development Board’s Senior Technical Officer who was invited by the court as an expert stated thus on page 68 lines 14 -7 of the record:
*From measurement taken as other erect position of the plaintiff s property it is true that part of the position which now forms the mosque falls within the plaintiffs property.”
Learned Counsel for the Respondent also submitted that the Appellant did not at any time deny taking part in the erection of the mosque or musala even when PW2 testified that he had asked the Appellant and his men to stop the erection of the said structure. He concluded that the Appellant continued to trespass into the Respondent’s land even before and after the court had restrained him, his reason being that it was simply a “result of human shortcoming.” Counsel for the Respondent concluded that this court should not disturb the findings of fact by the lower court same being related to the credibility of witnesses and evaluation of evidence, since there are matters within the knowledge of the trial court on account of having seen and heard the witnesses.
See 1. OTO V ADOJO (2003) 7 NWLR Pt (820) 636 at 671 E – G.
2. EMARIEKU V OVIRIE (1977) 2 SC 3.
The Respondent’s Counsel herein raised the issue that the Appellants additional ground of appeal is incompetent. That the ground of appeal upon which the Appellant couched its issue No. 3. does not comply with what is required of a competent ground of appeal by the provisions of Order 3 Rule 2 (1) – 4 of the Court of Appeal Rules it being argumentative. He further argued that the particulars in support of this ground does not specify the nature of the error in law neither does it state where the error in law has allegedly occurred. He then placed reliance on the case of OKIMODI V SOWUNMI (2004) 2 NWLR Pt 856 1 at 26 Paragraphs F – H.
Learned Counsel for the Respondent in conclusion on issue No. 1 submitted that the Appellant cannot raise the issue that the Respondent’s vendor could not have sold the mosque to him even if that was the intention of Alhaji Alhassan. That this was not the issue in the trial court. He reiterated the fact that the said mosque is not a public mosque as the Appellant wanted the court to believe and that a point not canvassed before the trial court cannot be raised at the Appellate court.
See
1. OTO V ADOJO (SUPRA) 671 B & C
2. ASANI V ADEOSUN (1966) NWLR 268
3. JAFFA V LADIPO (1969) 1 ALL NLR 165 AT 174
ISSUE TWO
Whether there was evidence before the lower court to support the judgment in favour of the Respondent.
Learned Counsel for the Appellant submitted that the Respondent did not prove his claim before the lower court on the balance of probability as some of the Respondent’s witnesses gave evidence against him. He referred to the evidence of PW2 at page 43 lines 27 -29 and page 44 lines 15 – 18, 21 -23 where he alleged that the witness denied under cross examination that the land on which the mosque was erected belonged to the Respondent. That this piece of evidence ought to have been assessed in favour of the Appellant, it being adversary’s evidence. See OJE & ORS VS. BABALOLA & Ors (1991) 5 SCNJ 110. That the trial court was wrong to pick and choose a piece of evidence from among all the pieces of evidence proffered by the Respondent in order to give that in his favour. Appellants Counsel further contended that if the trial court had considered and evaluated the totality of the evidence adduced by both sides, it would have entered judgment for the Appellant. That exhibit “Pwaspo 5” being a copy of a public document could not be admitted without it being certified and urged the court to expunge same from the record. See OGBU V ANI (1994) 7 – 8 SCNJ 363.
Learned Counsel for the Appellant again contended that the finding of the lower court that the mosque was erected after the Respondent had purchased his house is perverse. He then placed reliance on the evidence of PW1 at page 40 line 20 and that of PW2 page45 lines 3 – 12 where PW2 stated that the “Defendant and others added more blocks on the previous area.”
In response to the submission of learned Counsel to the Appellant on that issue, Respondent’s Counsel submitted that the Respondent gave evidence on how he acquired his property and took possession of same. That when the Respondent bought the house he said
“there was no structure in the form of a mosque at the frontage of the house. There was a place surrounded with stones only. The persons from whom I bought the house was using the surrounded space. There were also two trees planted by the seller of the house to him.”
He further alleged that one of the trees is still standing while the second tree had been uprooted by the Appellant and that it is this area which forms part of the Respondent’s land that was developed unto what PW3 in the lower court called “MUSALA” or mosque with a few courses of cement blocks.
Learned Counsel for the Respondent further contended that it is not in dispute that Alhaji Alhassan sold the house with the trees which he planted in front of his house. That the Respondent bought the house including the space where the mosque structure had been erected. Learned Counsel referred to the evidence of PW2 in the lower court who witnessed the transaction and confirmed that
“The area surrounded with blocks forms part of the area encompassing the plaintiff’s house.”
Counsel further stated that this was confirmed by the independent witness summoned by the court from Jos Metropolitan Development Board (JMDB) who after measuring the area stated that part of the said mosque falls within the Respondent’ property while the other part falls on government land which is referred to as “set back.”
Learned Counsel for the Respondent again contended that after the Respondent had bought the property, the number of muslim worshippers at the site lessened and that there is a community mosque at Angwan Rukuba where they worship. He further stated that the Appellant had admitted trespassing into the Respondent’s land since he wrote a petition to the C.O.P. complaining of the Respondent’s threat to demolish the mosque in issue. That his evidence at the lower court was:
“I even prayed in that mosque after I was restrained by the court. But before the order of the Court, I was praying there. I have however written a petition which I signed to the C.O.P……
That the said letter to the Police was admitted as Exhibit PWASPO 5 which he tendered in the lower court. His evidence was:
“I have a copy of the complaint made by the Defendant. The Police gave me a copy. If I see the copy of the complaint I will identify it.”
Learned Counsel further submitted that the Appellant admitted writing exhibit PWASPO 5 and stated thus in the court below:
“I have even written a petition which I signed to the C.O.P. Complaining of threat to demolish the said mosque. Exhibit PWASPO 5 is the Petition I wrote.”
Counsel concluded on that issue that the Respondent in the court below led evidence and tendered Exhibit 1 – 4 to the fact that the area on which the mosque was built was his land and that he had been in possession. That the Appellants oral evidence and that of his witnesses cannot be accepted to contradicts the said documentary evidence of his title to the said land. See OWHONDA V EKPECHI (2003) 17 NWLR (Pt 849) 326 at 350 A – D Also OLALOYE V BALOGUN (1990) 5 NWLR (Pt 148) 24.
ISSUE THREE:
Whether the calling of independent witness by the lower Court violated the Appellant’s right to fair hearing. The learned Counsel for the Appellant started by submitting that the trial court was biased and had allowed this bias to becloud his reasoning. He further stated that the trial court had descended into the arena by calling an independent witness to testify before him even after the close of evidence and the subsequent visit to the locus in quo. That the court did not seek the opinion of the parties before calling on the independent witnesses or visiting the locus in quo a second time thus offending against their right of fair hearing.
1. See Leedo Vs Bank of the North Limited (1998) 7 SCNJ 328.
2. Atano V AH Gen. Bendel State (1988) 4 SC 101 at 146.
3. Unnongo vs AKU & Ors. (1983) 11 SC 129 at 179.
Learned Counsel then urged this Court to hold that the judgment of the trial court is vitiated for reason of bias and to declare the proceedings a nullity.
In response to the submissions of learned Appellant’s Counsel, the Counsel for the Respondent stated that both parties had been given the opportunity to address the court before calling on the independent witnesses. That the court on that issue had this to say:
“In view of the nature of this case it being urban area, and for best approach to the determination of this case; it is my humble opinion, the Court has to invite witnesses to clarify certain issues.”
Learned Counsel further postulated that the Court in the interest of justice has the power to invite a witness not called by either party to clarify certain issues and to throw more light on the position of the land in dispute. See ERIC ODOR V. JAMES NWOSU & OR (1974) 1 ALL NLR Pt 11 at 478 where the Supreme Court held thus:
“It is in the interest of justice that, where confusion has risen from the evidence before the court, such confusion should not be allowed to be cloud the issues which the court is called upon to determine. It is also very much in the interest of the parties and the court that as far as possible, the facts upon which parties seek to reply should not be allowed to be shrouded in mystery. In such circumstances, the court may, with the acquiescence of the parties, exercise its power to call a witness not called by either of them”.
Learned Counsel for the Respondent further stated that the Appellant did not raise any objection to the need to call independent witness and that in fact the Appellant took part in the proceedings and even cross-examined the witness. That since neither parry challenged the decision of the trial court to call on independent witness, the Appellant cannot challenge that decision having acquiesced to it. He then cited the case of AKHIWU V THE Principal Lottery Officer, Mid-Western State (1972) 1 All NLR (Pt 1) 229 at 234. On the issue of not being accorded a fair hearing as alleged by Appellant’s Counsel, the Respondent’s Counsel stated that the phrase “fair hearing” as used in S.36 of the 1999 Constitution has been employed to express all requirements at common law for the observation of the rule of natural justice in the determination of the civil rights depending on the circumstances of each case. That the real test is an objective one, and cited the case of ISIYAKU MOHAMMED V KANO NATIVE Authority (1963) 1 All NLR 42. Where the Supreme Court held thus:
“It has been suggested that a fair hearing does not mean fair trial. We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from observation, justice has been done in the case”.
Learned Counsel for the Respondent further reiterated the fact that both parties were given an opportunity to cross examine the independent witness with no objection and thus the burden of proof of lack of fair hearing fails on the Appellant who has alleged same. That the Appellant must then show that his civil right and obligation have been adversely affected by the alleged breach. Learned Counsel for the Respondent then concluded that the Appellants grouse is not lack of fair hearing per se but that the trial court exhibited bias by calling on an independent witness. That the Appellant has not shown how the evidence of the witness put him in a disadvantaged position but that in ascertaining whether or not a court is biased, the Court should not look at the mind of the presiding judge but at the impression which would be given to other people.
I have carefully and painstakingly perused the submissions of Counsel and the authorities cited by them. I have also considered all the issues raised and resolved by them. On issue No. 1 whether the lower court was right in its judgment that the Appellant trespassed on the Respondent’s land by building a mosque thereon: Both parties however have consented to the fact that No. KA 316 T, Angwan Rukubu Jos is the property of the Respondent. The Respondent’s case however is that the said property which he bought from a certain Alhassan had earlier been partitioned by his vendor and used as a private prayer ground. From the facts so far gleaned, the Respondent’s vendor had demarcated a small portion of this property for use by himself and some of his friends as a private prayer ground whenever they visited him. The pertinent question here is: was this prayer ground used as a private prayer ground or a public mosque used by the Angwan Rukuba Community. Again, on whose property is the said prayer ground located?
The Respondent in the lower court had tendered certain documents ie. Exhibits PWASPO 1 – 4 to prove ownership of the land. He also testified in the lower court and the judge found that “when he bought the house, there was no structure in the frontage of the house in form of a mosque, but only a place surrounded with stones which the person he bought the house from was using.”
Principally, the Appellant did not contest the ownership of the house and its premises. He did not debunk the fact that the mosque started as a private place of prayer used by the vendor of the Respondent and he even admitted in the lower court that they had been restrained from using the place as a public place of prayer or mosque. The Appellant also did not tender any documents to support the claim that the structure is a public mosque rather the testimony by PW2 in the lower court was:
“The blocks arrangement was used for prayers by visitor that come to his house. ie Respondents vendor.”
They also testified that
“the area surrounded with blocks forms part of the area encompassing the plaintiff (Respondent’s) house.”
From the oral and documentary evidence so far adduced, I hereby resolve issue one in favour of the Respondent. I shall however proceed to argue issues two and three together as one relates to the other. Issue two is whether there was evidence before the lower court to support the judgment in favour of the Respondent and issue three is whether the calling of an independent witness by the lower court violated the Appellants right of fair hearing.
The Appellant alleged that some of the Respondents witnesses in the lower court testified against him by stating that the land where the mosque was erected does not belong to the Respondent and that this piece of evidence ought to have been assessed in favour of the Appellant being adversary evidence.
He then cited the case of OJE ORS VS BABALOLA & ORS (1991) 5 SCNJ 11. and further stated that the totality of evidence in the lower court tilted hearing in favour of the Appellant. Appellant further stated that exhibit “PWASPO 5” was a public document and ought to have been certified before being admitted by the Court below.
The Appellant however had witnesses who testified that the land on which the mosque was erected did not belong to the Respondent being a public mosque. The Respondent on the other hand tendered exhibits PWASPO 1 – 4 to show ownership of the said premises including the land on which the mosque was erected. It is therefore the oral evidence of the Appellant as opposed to the documentary evidence of the Respondent which the court below used to decide the matter one way or the other. The law is that where there is oral and documentary evidence, the latter should be used as an instrument by which the oral testimony may be evaluated.
See the case of UBA PLC V Jargaba (2002) 2 NWLR (Pt 750) 200.Again the Court of Appeal held thus in the case of Aiki V Idowu (2006) 9 NWLR (Pt 984) 50:
“Documents when tendered and admitted in Court are like words uttered and do speak for themselves. They are more reliable and authentic than words from the vocal cord of a man as they are neither transient nor subject to distortion and misinterpretation but remain permanent and indelible through the ages.”
It is however my humble opinion that the documentary evidence produced by the Respondent by far outweighed the oral testimony of the Appellant. On the issue of Exhibit “PWASPO 5” being a public document and ought not to have been admitted by the Court below, it being uncertified, I have this to say: Both parties no doubt admitted that exhibit “PWASPO 5” which is the complaint made by the Appellant to the Police was indeed written by the Appellant. The Appellant admitted that fact in the court below when he thus stated:
“I even prayed in that mosque after I was restrained. But before the order of the Court I was praying there. I have however, written a petition which I signed to the Commissioner of Police……………….i copied the petition to some other people”.
The lower court on this premise then found thus:
“The defendant (Appellant) reported in writing the Plaintiff (Respondent) to the Commissioner of Police when he interpreted the displeasure of the Plaintiff over the erecting of a mosque as a threat to demolish the mosque.” (See Exhibit PWASPO 5).
This piece of evidence can be admitted under Section 89(b) of the Evidence Act particularly since the maker of the document ie the Appellant had admitted its content in the court below that he was actually the maker of such document. He admitted thus in the court below:
“I have even (sic) written a petition which I signed to the Commissioner of Police complaining of threat to demolish the said mosque Exhibit PWASPO 5 is the petition I wrote.”
I hereby find that exhibit PWASPO 5 notwithstanding, the other Exhibits 1 – 4 are all documents evidencing title to Respondents piece of land which he is in possession and on which the said mosque had been erected. Appellant’s oral evidence alone cannot outweigh the documentary evidence of the Respondent.
See OWHONDA V EXPECHI (2003) 17 NWLR (Pt 849) 326 at 350 A – D
In general parlance, an appellate Court will not ordinarily disturb the findings of fact of a trial court relating to credibility of witnesses and evaluation of evidence which are matters within the knowledge of the trial court who alone saw and heard the witnesses. See the Supreme Court case of EMENIMAYA VS. OKORJI (1987) 3 NWLR Pt 59 6 at 7 held F.
This appears to be the purport of the case before us.
The Appellants final bone of contention is that the court below was biased by first descending into the arena and calling an independent and secondly visiting the locus in quo without the consent of the Appellant. It is clearly evident that to further throw more light on certain nebulous issues, the court decided to call an officer from the Jos Metropolitan Development Board to clarify matters. The law allows such a move by the court below if the court is not quite convinced about the issues before it and wishes to elucidate upon certain points. In some exceptional circumstances where confusion has arisen from the evidence before the court, the judge may with the acquiescence of the parties, call a witness not called by either side for the purpose of throwing more light on the case. Also, if and when the power is exercised, the party adversely affected by such testimony is entitled to cross-examine the witness. See ERIC ODOR V JAMES NWOSU (1974) 1 ALL NLR 478 at 479
In the particular circumstance of the present case, the exercise of the power of the court below did not to my mind result in a miscarriage of justice neither did such act deprive the Appellant of his fundamental right to fair hearing. It is however not in contention that both parties agreed to the calling of an independent witness and both parties acquiesced and went further to cross examine the officer from the Management Board. To my mind, the Appellant is simply raising this issue of bias and lack of fair hearing simply by reason of the fact that the evidence of the said officer did not go in his favour. Where then lies the breach of fair hearing when both parties had exhausted their witnesses and had even been given the opportunity to cross examine the independent witness? It is however my humble view that it behooves on the Appellant to show that he had been denied the right of fair hearing and that his civil right and obligation had been adversely affected by the alleged breach. The Appellant did not show that the evidence of the independent witness had put him at a disadvantage.
See the case of BANKER V NIGERIAN CIVIL AVIATION TRAINING CENTRE (1986) 3 NWLR.
Fair hearing within the meaning of Section 36(1) of the 1999 Constitution means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties. It required the observance of the twin pillars of the rules of natural justice namely: audi alteram partem
See ESHENAKE V GBINIJE (2006) 1 NWLR (Pt 961) 288.
The basic attributes to fair hearing include the fact that the Court shall hear both sides on all material issues in the case before arriving at a decision which may be prejudicial to any party in the case. See USANI V DUKE (2004) 7 NWLR (Pt 871) 116.
I have failed to see where the court’s invitation of an independent witness had caused a breach of fair hearing to any of the parties when they were both given the opportunity to cross-examine such witness.
From the totality of all the findings and submissions herein, I find that the invitation of an independent witness indeed constituted a fair trial to both parties. The evidence adduced in the court below cannot be wished away since the trial Court witnessed and then deciphered the demeanour of all parties concerned before arriving at his decision.
Consequently, the judgment of the trial Court is hereby affirmed and the appeal is accordingly dismissed. I make no order as to Cost.
CLARA BATA OGUNBIYI J.C.A.: I have read in draft the lead judgment just delivered by my brother Philomena Mbuo Ekpe (JCA) and I agree that the appeal is lacking in dire merit. I would however wish to comment briefly on the question of propriety or not of the trial Court calling on Independent witness. In other words, whether the calling of such a witness did in fact violate the Appellant’s right of fair hearing as submitted by the Appellant’s counsel.
The grouse of the Appellant’s complaint was an absence of fair hearing. This is evidenced as per the 2nd ground of appeal which reproduction state as follows:
2. The trial court erred in law when it suo motu and at its expense called a witness from I.M.D.B. without giving the appellant a fair hearing contrary to s.33(1) of the Constitution.
Particulars of error
(a) That both parties closed their respective cases.
(b) The court visited the locus in quo.
(c) That after counsel to the parties have addressed the trial court same on its own called another witness on its own without calling the parties to address it on that.
With reference to the record of appeal before us, it is unfortunate to state that the Appellant’s counsel did not deem it necessary to number the pages. The Court cannot therefore relate to the Pages for purposes of easy reference. However, I would wish to state that the trial Court at a stage during the course of the Address by the Defendant’s counsel ruled and had this to say:
“Court: In view of the nature of this case, it being in urban area, and for best approach to the determination of this case, it is my humble opinion the court has to invite other witnesses to clarify certain issues.”
By the use of the phrase “the Court has to invite other witnesses to clarify certain issues” it presupposes that the just determination of the case would require more than that which was placed before the Court and hence the calling for additional witnesses.
It is also on record that both counsel representing the parties were at the locus of the time of giving evidence by the additional witness who was cross examined by the counsel to the parties. I hasten to add also that contrary to the submission by the learned Appellant’s counsel, there was no indication on the record evidencing an objection by any of the parties on the invitation to the locus in quo as reiterated. The right to fair hearing contended by the Appellant’s counsel is well spelt out per Section 36(1) of the 1999 Constitution and same reproduced states as follows:
“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 as reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
The concept of fair hearing connotes a hearing of which the parties are allowed notice of each other’s complaints and are given ample opportunity to present their positions with evidence and arguments. There should be the freedom to conduct ones case without any inhibition. This is trite and the case of Eric Ordor v. James Nwosu & Another has been well related to by my brother in lead judgment. From the entire proceedings at the trial Court, there is nowhere on record that the Appellant’s counsel either objected to the calling of the witness or has reason against the further evidence to be adduced Courts are imbued for purpose of doing justice and all material facts are necessary to be placed before it. Plethora of authorities are clear cut on the concept of fair hearing which was held to consist of the whole and entire hearing culminating into justice and thus synonymous in nature. The authorities in the cases of Isiyaku Mohammed v. Kano Native Authority (1968) 1 All NLR 42 per Ademola CJN is also in reference and cited in the lead judgment.
On the submission before us and with the parties having been given opportunity to cross examine the additional witness on his evidence and also allowed to prosecute their cases without any hindrance, the allegation of bias levied against the learned trial Judge is unfounded in the absence of any evidence of any breach of f air hearing.
The Oxford Advanced Dictionary 7th Edition had defined bias as:
“A strong feeling in favour of or against one group of people. Often not based on fair judgment. This has not been shown to be the case in the matter at hand. ”
On the totality of this appeal therefore, I find some having been adequately dealt with by my learned brother in the lead judgment and I also dismiss same and affirm the judgment of the trial Court.
JUMMAI HANNATU SANKEY J.C.A.: I have had the opportunity of reading in draft the Judgment read by my learned brother, Ekpe, J.C.A, I agree that the Appeal lacks merit and that it should be dismissed. I have nothing to add. Accordingly, I too hereby dismiss the Appeal and adopt the consequential orders.
Appearances
A. A. Sangei Esq. For Appellant
AND
P. H. Kelek Esq. For Respondent
