ALPHONSUS HUNGWA V. AKAAYAR UWUOKWU (2011)

ALPHONSUS HUNGWA V. AKAAYAR UWUOKWU

(2011)LCN/4572(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 25th day of May, 2011

CA/J/7/2005

RATIO

ADJOURNMENT OF PROCEEDINGS: WHETHER THE ISSUE OF ADJOURNMENT OF PROCEEDINGS IS A MATTER WITHIN THE DISCRETION OF THE COURT CONCERNED

The issue of an adjournment indeed is a matter at the discretion of the Court concerned. While a court is not bound to grant an adjournment, the facts and circumstances of each case placed before the Court must be well considered and taken into account. See Odusote V. Odusote (Supra); Akintunde Solanke V. Ajibola (1968) 1 All NLR 45 @ 54. PER UCHECHUKWU ONYEMENAM, J.C.A

COUNTER CLAIM: EFFECT OF THE FAILURE TO FILE A DEFENCE TO A COUNTER CLAIM

Where a defendant as in this case counter claims, a reply in defence must be filed.Where there is failure to file a defence, the court is obliged to assume there is no defence to the counter claim and may enter judgment accordingly for the defendant. See Usman V. Garke (2003) 14 NWLR (pt, 840) 261. PER UCHECHUKWU ONYEMENAM, J.C.A

ADJOURNMENT OF PROCEEDINGS: WHETHER THE COURT SHOULD GRANT AN ADJOURNMENT, WHERE A REFUSAL OF SUCH APPLICATION WILL RESULT IN A SERIOUS INJUSTICE TO THE PARTY REQUESTING IT

In the exercise of a discretion to grant an adjournment, the spirit of the law is substantial justice and as such where a refusal of an adjournment will result in a serious injustice to the party requesting it, an adjournment should only be refused if that is the only way to attain substantial justice in the case. PER UCHECHUKWU ONYEMENAM, J.C.A

ADJOURNMENT OF PROCEEDINGS: EFFECT OF THE REFUSAL OF AN APPLICATION FOR ADJOURNMENT OF PROCEEDINGS

The law is settled and the procedure is, when an application for adjournment is refused the parties will be invited to proceed or face the consequence of default. When a party is unable to proceed with the matter as directed by the court the outstanding application as in this case could be dismissed or struck out as the case may be. See Aliyu V. Chairman, Rent Tribunal (No.50 Kaduna (Supra); in Re: Alase (2002) 10 NWLR (pt. 7760) 553. PER UCHECHUKWU ONYEMENAM, J.C.A

ADDRESS OF COUNSEL: WHETHER WHEN THE FACTS ARE STRAIGHTFORWARD AND IN THE MAIN NOT IN DISPUTE, THE TRIAL JUDGE WOULD BE FREE TO DISPENSE WITH FINAL ADDRESSES

Addresses are meant to assist the court. Cases are decided on credible evidence and not on addresses, No amount of brilliance in a final address can make up for the lack of evidence to prove and establish or disprove and demolish points in issue. When the facts are straightforward and in the main not in dispute, the trial Judge would be free to dispense with final addresses. See Niger Construction Ltd V. Okugbemi (1987) 4 NWLR (pt.67) 787 at 795. In that case His Lordship Agbaje., J.S.C. also said: “The right of counsel to address the court is provided for by rules of court, so there can be something in a complaint by counsel that the trial court has deprived him of his right to address the court on behalf of his client at the close of the case for both sides, for any discretion possessed by a trial Judge must be exercised within the confines of the law. But where as it is in this case the complaint of counsel is not that he himself had not been allowed to address the court but that counsel for the other side had not been allowed to address the court, and that counsel had not in any way complained about this, I cannot see how such a complaint can be said to occasion an injustice to the counsel complaining or any miscarriage of justice.” From the above decision it is clear that the apex court has settled the law to the effect that a counsel who is not allowed to address the court has something to complain about except when the facts are straightforward and in the main not in dispute. PER UCHECHUKWU ONYEMENAM, J.C.A

JUSTICES

KUDIRAT M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria

ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

Between

ALPHONSUS HUNGWA Appellant(s)

AND

AKAAYAR UWUOKWU Respondent(s)

UCHECHUKWU ONYEMENAM, J.C.A (Delivering the Leading Judgment): This is an appeal against the ruling and judgment of the High Court of Justice of Benue State sitting at Makurdi in suit no. MHC/244/2003 delivered on 5/3/2004.
The respondent on the 19th day of August, 2003 sued the appellant as 1st defendant and the Bureau of Lands & Survey as 2nd defendant in the High Court of Benue State, Makurdi claiming the refund of N 330,000:00 (Three Hundred and Thirty Thousand Naira) only, being failed consideration on plot no. BNA 8095.
The relevant facts are: The respondent bought plot no, BNA 8095 from the appellant in 2001 for the sum of N330, 000:00. The appellant a deemed holder of a customary title to the land had applied to the 2nd defendant for a grant of a right of occupancy. The respondent later discovered that a 3rd party one Charles Orbunde claimed title to the land. After pleadings were exchanged, the respondent through his counsel brought a motion for judgment which motion was served on the appellant’s counsel in court on 3/2/2004. Thereafter counsel for the appellant withdrew from the matter and an adjournment was granted to the appellant to brief another counsel. On 5/3/2004 Mr. Sule a new counsel appeared for the appellant while Mr. Tarpav for the respondent moved the motion for judgment. Mr. Sule prayed the court for an adjournment to enable the appellant file a counter affidavit or in the alternative to be allowed to address the court before judgment for the reason that the motion moved was not part of the processes the former counsel for the appellant transmitted to him. The learned trial judge ruled refusing the application for an adjournment and went ahead to enter judgment for the respondent.
Dissatisfied with the decisions of the court below the appellant has appealed to this court vide an undated Notice of Appeal with seven (7) grounds filed on the 4th day of May, 2004. The 2nd defendant did not appeal neither was he made a respondent.
In accordance with the rules of this court, briefs were duly filed and exchanged. Appellant’s brief dated 18/6/2005, filed and deemed properly filed on 18/10/05 by the order of this court was prepared by Mr. A.A. Sule, The appellant’s brief of argument raised the following four (4) issues for determination;
(1) “Whether the learned trial Judge exercised his discretion, judicially and judiciously in the circumstances by refusing the application for adjournment (see: Ground 1 of appeal).
(2) Whether it is not a breach of the appellants right to fair hearing, by the learned trial Judge’s refusal to both near (sic) the final address of his counsel; and proper legal representation in his cause, as well as the hearing of the motion, and delivery of final judgment on a date the suit was fixed for hearing. (see Grounds 2, 3, 4 and 5 of appeal)
(3) Whether the learned trial Judge was right in a land dispute to have adopted a fast track trial procedure, sidelining, the hearing of the appellant’s oral and documentary evidence, on basis that the pleadings disclose a weak defence (see: Ground 6).
(4) Whether, there was any basis in fact and law for the award of the N50, 000: 00 (Fifty Thousand naira) only General damages awarded to the respondent by the learned trial Judge.
On their own part, the respondent’s brief prepared by Mr T.T. Hyundu was dated 8/5/2006 and filed 7/11/2006 but deemed properly filed by an order of this court on 31/10/2006. In submitting that there are three (3) issues that arise for determination counsel adopted appellant’s issues nos. 1, 2, and 4 as reproduced above,
At the hearing of the appeal on 13/4/2011 the learned counsel for the appellant was not present in court although the court’s record shows the appellant was served with Hearing Notice through him on 11/4/2011. Having filed a brief of argument he was deemed to have argued the appeal pursuant to Order 17 Rule 9 (4) of the Court of Appeal Rules 2007. Mr. Atonko learned counsel for the respondent, adopted and relied on the respondent’s brief and urged the court to dismiss the appeal.
I adopt issues nos. 1, 2, and 4 formulated by the appellant’s counsel as issues that arise for the determination of this appeal. However I have observed that the resolution of issue no 1 as formulated is interwoven with the resolution of issue no 2 and as such I shall resolve issues 1 and 2 jointly.
Learned counsel for the appellant submitted that the learned trial Judge did not exercise his discretion judicially and judiciously when he refused to grant the application for adjournment. He argued that justice demands that the new counsel should have been allowed an adjournment to sort out the processes in the matter. Mr. Sule submitted that the refusal to grant the adjournment as sought was a clear breach of the appellant’s right to fair hearing. He relied on; Aliyu V. Chairman Rent Tribunal (No. 5) Kaduna & Ors. (2003) FWLR (pt 155) 636 at 646-647
It was also learned counsel’s submission that the net effect of the refusal of the trial Judge to grant the application for an adjournment, the refusal to take the address of the appellant’s counsel before judgment and the taking of the address of the respondent’s counsel alone not only deprived the appellant of his right to proper legal representation but also breached his right to fair hearing. Counsel cited the following authorities:
Section 294 (1) Constitution of the Federal Republic of Nigeria 1999: Okoebor V. Police Counsel (2003)
FWLR (pt. 164) 189 @ 215 – 216; Premonoh V. The President of Customary Court Grade B Agbowa Ikosi (1987) 2 QLRN 277; R.T.N.B.C. V. R.T.A.C.O. (1992) 7 NWLR (pt 21) 105: Ofor V. State (1999) 12 N.W.L.R. (pt 632) 608. In conclusion learned counsel urged the Court to set aside the decisions of the lower court and allow the appeal.
In reply, learned counsel for the respondent submitted that the grant of an adjournment is discretionary; that its exercise must depend on the facts and circumstances of the case in as much as it must be exercised judicially and judiciously. He argued that an adjournment is not granted merely for the asking. Counsel referred to: Saffiaddine V. C.O.P (1995) 1 All NLR 54 at 56; University of Lagos V. Aigoro (1985) 1NWLR (pt 1) 143 @ 148; Udo Udo V. The State (1988) 3NWLR (pt 82) 316; Akintunde Solanke V. Ajibola (1968) 1 All NLR 46 @ 54; A.C.B. Ltd V. Agbanyim (1960) SCNLR 57; Princewill V. Usman (1990) 5 NWLR (Pt. 150) 274; Odusote V. Odusote (1971) INMLR 228.
It was learned counsel’s submission that the lower court was duty bound in law to give judgment in favour of the respondent in the light of the admission contained in paragraph 3 (e) and (C) of the appellant’s amended statement of defence without calling on the defence to address it. He cited: Mosheshe General Merchants Ltd V. Nig. Steel Products Ltd (1987) 4 SCNJ II. The learned counsel also contended that the filing of a motion for judgment as permitted by Order 30 Rule 3(1) and (2) of the Benue State High Court (Civil Procedure) Rules Edict 1988 was a circuitous route of obtaining judgment since it is trite law that parties can discharge their burden on the pleadings. He relied on: Onyekonwu V. Okwubiri (1996) 1 All NLR, and referred to: Aliyu V. Chairman, Rent Tribunal (No. 5) Kaduna State and Ors (supra cited by appellant’s counsel to submit that the facts are nor on all fours and so cannot avail the appellant in this case.
Learned counsel urged the court to hold that the appellant’s counsel abandoned the question of legal representation contending that he did not address the court on that. It was also his submission that the address of counsel cannot be a substitute for evidence and that where the facts of a case ar. clear the court can dispense with addresses. He relied on: Peter Acka V. Akure (1987) 1 NWLR (pt. 47) 741; Niger Construction Ltd V. Okugbemi (1987) 4 NWLR (pt. 67) 787 at 792. On Section 294 (1) of the Constitution, learned counsel submitted that the provision is merely directory and not mandatory as far as addresses are concerned. Finally on fair hearing the learned counsel referred to the test of the reasonable man who was present in court and submitted that the appellant’s admission of the claim both in writing and viva voce coupled with the appellant’s counsel’s address on the issues narrowed down for determination did not suggest that the appellant suffered any injustice. Learned counsel then urged the Court to dismiss the appeal as lacking in merit.
The cardinal principle in the exercise of a discretionary power is that it must be exercised judicially and judiciously. See Odusote V. Odusote (1971) 1 NWLR 228; Offordile V. Egwuatu (2006) 1 NWLR (pt 961) 421. A judicial and judicious disretion is that power of a Judge or court directed by sound judgment in determining the right of a litigant where such right is not absolute. It is not to give effect to the will of the Judge, but to that of the law. It is the liberty of a Judge to decide and act in accordance with that which is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit of the law. In UBN V. Astra Builders (2010) 41 NSCQR 1016 at Pages 1038 – 1039
His Lordship Adekeye JSC said;
“An exercise of discretion is an act or deed based on one’s personal judgment in accordance with one’s conscience, free and unfettered by any external influence or suggestions. A judicial discretion means the power exercised in an official capacity in a manner which appears to be just and proper under a given situation. It must not flow from or be bound by a previous decision of anther court in which a discretion was exercised. It is in short an antithesis to the doctrine of stare decisis. There is no hard and fast rule as to the exercise of a judicial discretion by a court for if that happens, discretion becomes fettered”

I shall highlight the facts placed before the learned trial Judge as at 5/3/2004 which he ought to have considered and taken into account in the exercise of his discretion on the application for the adjournment sought, The 1st appellant’s statement of defence and counter claim dated 31/12/03 is at pages 7- 10 of the record. Nothing on record shows that there was any statement of defence either by the 2nd defendant or by Charles Orbunde to the counter claim. On 3/2/04 Mr. S.S. Hembaor for the appellant was served with a motion for judgment in court. Soon after he applied and was granted leave to withdraw from further appearance for the appellant. The appellant in reaction to Mr. Tarpav’s application for judgment in the sum of N350,000.00 as consideration that has failed and which is not in dispute said;
“I dold (sic) the piece of land to the plaintiff for (N330, 000.00) only in the year 2007, I have right to sell the plot, it belongs to me, I want to settle out of court with the plaintiff. I had offered an alternative plot to plaintiff but he refused.
I pray for adjournment, I want to engage another lawyer.”
See pages 25 to 26 of the record,
The case was adjourned to 5/3/04 for hearing with costs at N2, 000.00 in favour of the respondent. On 5/2/04 Mr. A.A. Sule the new counsel for the appellant wrote for a stand down for the reason that he had taken his daughter to the hospital. The court at 9.20 a.m. stood down the matter till 10.00 a.m. At 10:05 a.m. the court resumed and what transpired is the reason for this appeal and as such I will reproduce the proceedings of the lower court on 5/3/2004 found at page 27 lines 21 to page 29 line 20 of the record:
“Resumed at 10.05 a.m.
Parties and counsel as before
A.A. Sule for 1st defendant/respondent
Tarpav: The motion is pursuant to order 30 rules 3(2) Rules of this court. We are praying for judgment to the plaintiff; i.e. for N330, 000.00 purchase price for a piece of land for which consideration has failed and general damages of N1, 000/000,00.
Motion is supported by an affidavit. There is no counter affidavit, Plaintiff paid 1st defendant for a piece of land. Plaintiff now wants refund of his money. Exhibits A & B – statement of claim of plaintiff and statement of 1st defendant.
Sule: Motion papers were not served on us.
Tarpav: The former counsel was served this motion on 3/2/2004 in court.
Court: Confirmed,
Sule: I am just appearing in the matter today. The 1st defendant informed me that Mr. Hembaor did not give him the motion in question. That explains the absence of counter affidavit of 1st defendant.
Court: He was in court on 3/2/04 when did 1st defendant brief you?
Sule: On 27th or 28th February, 2004, I pray for adjournment. It will be interest of justice that adjournment be given to us to enable us file counter affidavit so that we can respond to the motion.
Alternatively, counsel be permitted to address the court on the issue narrowed down before judgment.
Court: What issue do you want to address on?
Sule: That there is no failure of consideration secondly, that there is no grand (sic) for the recession of the contract. Thirdly, that there is no duty on 1st defendant respecting a contract long Concluded. With plaintiff to make any refund to plaintiff. Finally, the plaintiff has not made any case warranting any judgment.
These are the issues,
Ekpendu: The procedure counsel for 1st defendant has advocated is novel. There is no counter affidavit, I have seen the procedure where a motion is moved and then there is adjournment for addresses.
We were also served motion for judgment. We have no counter affidavit. We have no objection to the judgment asked for.
Court: Upon hearing Mr. A.A. Sule for 1st defendant and satisfied that this motion was served on 1st defendant through his counsel on 3/2/2004 I refuse the adjournment sought. 1st defendant was in court when the motion was served on his counsel.
(sgd)
Hon. Justice E. Eko
Judge
Sule: we have nothing else to say,
RULLING…”
To hold that the trial Judge exercised his discretion judicially and judiciously in the application for an adjournment sought, I must resolve in the affirmative that he exercised his discretion according to common sense, in the spirit of the law and without miscarriage of justice upon the facts placed before him as shown above.
The respondent’s counsel threw stormy weight on paragraph 3 (e) and (g) of the appellant’s statement of defence and appellant’s earlier reproduced statement in court on 3/2/04 as admissions to respondent’s claim. Before a Court decides whether or not there is an admission in the statement of defence it must consider the entire pleadings of the parties as a whole. It is the totality of the pleadings, whether it is the statement of claim or the statement of defence, that states the case of the party and it will be unjust to rely only on a few paragraphs of either pleadings to come to a conclusion. As such a fact contained in a pleading cannot be deemed admitted if it is either expressly or by necessary implication denied by the totality of the opposing party’s pleading. See Buhari V. Obasanjo (2005) 13 NWLR (Pt. 941) 1; Adegboyega V. Awe (1993) 3 NWLR (pt 280) 224. To appreciate this issue better I shall reproduce paragraph 3 (e) and (g) of the appellant’s statement of defence. Paragraph 3 (e) and (g) state;
“(e) After investigating and confirming 1st defendant’s unmolested and consistent exercise of customary rights over the land in issue plaintiff about 28th March, 2001 made part payment of the agreed consideration to 1st defendant with the balance to abide further confirmation of 1st defendant’s entitlement to the plot from 2nd defendant.
(g) 1st defendant avers that the consideration as provided by plaintiff was based on the disclosure made by 1st defendant and after due investigation/confirmation by Yande Bigila and plaintiff.”
The respondent claimed the refund of N330, 000.00 being failed consideration on plot no. BNA 8095. The statement of the appellant in court on 3/2/2004 as earlier reproduced in this judgment and the portions of paragraph 3 of appellant’s statement of defence reproduced above do not in any light qualify as admissions to the respondent’s claim. The totality of what the respondent’s counsel deemed as admission to the respondent’s claim, the entire statement of defence and counter claim of the appellant are admissions only to the extent that there was a N330,000.00 consideration on plot no. BNA 8095 but that the consideration has not failed because he is entitled to the land and has a claim against the 2nd defendant and Charles Orbunde (the claimant) of title over plot BNA 8095. Amazingly neither the 2nd defendant nor Charles Orbunde filed any defence to the counter claim. This, by the rules of pleadings is deemed admission. Where a defendant as in this case counter claims, a reply in defence must be filed.Where there is failure to file a defence, the court is obliged to assume there is no defence to the counter claim and may enter judgment accordingly for the defendant. See Usman V. Garke (2003) 14 NWLR (pt, 840) 261.

By the counter claim that was not denied the trial Judge was entitled to assume that the 1st defendant and not Charles Orbunde is entitled to the grant of the statutory Right of Occupancy of plot no. BNA 8095 by 2nd defendant. With the foregoing there would have been no basis for the trial court to come to the conclusion that the appellant had admitted the respondent’s claim let alone enter judgment on that premise. The facts examined so far would have put the trial Judge on notice that the appellant has a defence no matter how feeble and that justice and the fair hearing principles will demand that he be heard. In the instant case one of the ways he could have been accorded that opportunity was the grant of an adjournment of the case on 5/3/2004.
Also before the lower court as a material fact was the exit of Mr. S.S. Hembaor on 3/2/2004 and the emergence of Mr. A. A. Sule as the appellant’s new counsel. It is equally apparent from the record that Mr. Sule was not seised of the whole processes relating to the suit. At least it is on record that the former counsel did not transmit the motion for judgment to Mr. Sule and that 5/3/2004 was his first appearance in the matter. Soon after Mr. Sule announced his appearance for the appellant he encountered the moving of the motion for judgment by Mr. Tarpav for the respondent. Counsel for the appellant therefore sought for an adjournment to file a counter affidavit or in the alternative to be allowed to address the court. The trial Judge refused the application for an adjournment and kept mute on the application to be allowed to address the court. I must observe here that there is nowhere on record that the appellant’s counsel addressed the Court on issues narrowed down for determination as submitted by the respondent’s counsel.
The trial Judge was swayed by his strong belief that the appellant had admitted the respondent’s claim and so drew a wrong inference that the address of the appellant’s counsel could be dispensed with. It is true that a plaintiff is entitled to rely on any evidence from the defence which goes to prove or support his case but I have shown in this judgment that the learned trial Judge wrong in believed that there was admission. The trial Judge failed to consider the fact that the appellant was vigorously putting up his defence as evidenced by the filing of his statement of defence and counter claim and the prompt briefing of a new counsel after the first one withdrew. The learned Judge failed to rationalize the justice of the case when he chose to hear the motion for judgment although the facts before him showed that the party against whom the judgment was sought did not possess the motion for the fault of his previous counsel. The trial Judge failed to advert his mind to the cogent fact that the appellant’s new counsel Mr, Sule was appearing in the matter for the first time. He seemed to have set out to punish the appellant for the sin or mistake of his previous counsel who did not transmit the file to the new counsel. This made the learned trial Judge deviate from the well known principle of law that when a Judge is called upon to exercise his discretion as a result of the iniquity or mistake of a counsel especially when the mistake is in respect of procedural matters, the discretion of the court, although always required to be exercised judicially, would be exercised with a leaning towards accommodating the parties’ interest and determination of the case on the merits. See Ogundoyin V. Adeyemi (2001) F.W.L.R. (pt. 71) 1741. Iroegbu V. Okwordu (1990) 6 NWLR (pt. 159) 649.

What was fair and equitable with the peculiar circumstances of the case was the grant of the adjournment. In the exercise of a discretion to grant an adjournment, the spirit of the law is substantial justice and as such where a refusal of an adjournment will result in a serious injustice to the party requesting it, an adjournment should only be refused if that is the only way to attain substantial justice in the case.

There is no doubt that the learned trial Judge was not guided by the spirit of the law in the exercise of his discretion. The learned counsel for the respondent’s submission that the facts of this case is not on all fours with the case of Aliyu V. Chairman, Rent Tribunal (No. 5) Kaduna (Supra) is correct and that was why this court held that the trial Judge exercised her discretion judicially and judiciously. Unlike in the case of Aliyu (Supra), in the instant case there was no glimpse of delay tactics on the part of the appellant nor undue request for adjournment on the part of his counsel. The learned counsel in the case at hand sought for an adjournment as the earliest opportunity presented itself unlike in the case of ALIYU SUPRA where the same counsel who had been appearing for the applicant from the inception of the case waited until the day the matter was fixed for hearing to apply for an adjournment to correct errors in his processes. The reasons adduced by the trial Judge for refusing the adjournment in the present case which are, that the motion for judgment was served on appellant’s previous counsel in the Court and that the appellant himself was present in court when the motion was so served, to me, are not directed by sound judgment the same being directed at the termination of the suit without hearing it on the merits and thereby occasioning miscarriage of justice. In totality, it is my view and I so hold that the learned trial Judge was wrong in the exercise of his discretion in that no sufficient weight was given to the relevant facts in the circumstances of the case. See Saffieddine V. C.O.P Western Nigeria (Supra).
I am mindful of the fact that this court must be very slow to interfere with the exercise of the discretion of a trial Judge on a question such as the refusal to grant an adjournment of a trial. However based on the reasons earlier adduced in this judgment I am of the strong view that the refusal to grant an adjournment in the instant case culminated in a denial of the appellant’s right to fair hearing in that the appellant was prevented from presenting his defence and counter claim. See Solanke V. Ajibola (Supra); Acka V. Akure (1987) 1 NWLR (pt. 47) 74. In conclusion I hold that the trial Judge failed to exercise his discretion judicially and judiciously.

After the trial Judge ruled on the application for adjournment he proceeded to enter judgment in the suit. The law is settled and the procedure is, when an application for adjournment is refused the parties will be invited to proceed or face the consequence of default. When a party is unable to proceed with the matter as directed by the court the outstanding application as in this case could be dismissed or struck out as the case may be. See Aliyu V. Chairman, Rent Tribunal (No.50 Kaduna (Supra); in Re: Alase (2002) 10 NWLR (pt. 7760) 553.

In the alternative the learned counsel for the appellant prayed for permission to address the court. The learned trial Judge neither ruled on this nor invited the learned counsel for the appellant to proceed in any form. The learned counsel for the respondent was not correct when he submitted that counsel for the appellant abandoned the issue that failure of the trial Judge to invite him to address the court violated the appellant’s right to proper legal representation since counsel for the appellant addressed the court on the said issue. Addresses are meant to assist the court. Cases are decided on credible evidence and not on addresses, No amount of brilliance in a final address can make up for the lack of evidence to prove and establish or disprove and demolish points in issue. When the facts are straightforward and in the main not in dispute, the trial Judge would be free to dispense with final addresses. See Niger Construction Ltd V. Okugbemi (1987) 4 NWLR (pt.67) 787 at 795. In that case His Lordship Agbaje., J.S.C. also said:
“The right of counsel to address the court is provided for by rules of court, so there can be something in a complaint by counsel that the trial court has deprived him of his right to address the court on behalf of his client at the close of the case for both sides, for any discretion possessed by a trial Judge must be exercised within the confines of the law. But where as it is in this case the complaint of counsel is not that he himself had not been allowed to address the court but that counsel for the other side had not been allowed to address the court, and that counsel had not in any way complained about this, I cannot see how such a complaint can be said to occasion an injustice to the counsel complaining or any miscarriage of justice.”
From the above decision it is clear that the apex court has settled the law to the effect that a counsel who is not allowed to address the court has something to complain about except when the facts are straightforward and in the main not in dispute.

In this case; however I had earlier in this judgment arrived at the conclusion that there was no admission and that the facts were in dispute. Also it is the counsel who was not allowed to address the court that has brought this complaint. These are the distinguishing facts between the case of Niger Construction Ltd V. Okugbemi (Supra) and the instant case. For these distinguishing facts I cannot follow the decision in the above case but I abide by the principles of law set out therein. The fact that the application for an adjournment was refused was no reason why the learned counsel for the appellant should not have been given the opportunity to address the court at least on points of law. The argument of the learned counsel for the respondent that Section 294 (1) of the Constitution is merely directory and as such the court could as in this case dispense with addresses and proceed to enter judgment is misconceived. The combined effect of section 294 (1) of the Constitution and the rules of court and in this case Order 37 Rule 22 of the Benue State High Court (Civil procedure) Rules, 1988 shows that an address before judgment is a legal right. Though not mandatory as it can be waived by a counsel yet the Court has no discretion to dispense with a counsel’s right of address except when the facts of the case are straightforward and the issues undisputed. Anything to the contrary will amount to a breach of a party’s right to fair hearing and his right to proper legal representation.
In Gbadamosi V. Dairo (2007) 29 NSCOR 137 at 164 His Lordship Niki Tobi JSC on fair hearing had this to say:
“Fair hearing is not an expression of mere rhetoric or empty verbalism but a fundamental right of the individual guaranteed in the constitution, the breach of which will nullify the proceedings in favour of the victim. The constitutional guarantee is construed in the light of the facts of the case and the facts alone. It cannot be construed outside the facts. Accordingly, a party alleging the breach must show clearly from the facts of the case that the right is violated or breached.”

Fair hearing simply means hear both parties or give both parties in a dispute equal opportunity of being heard before a decision is taken in the matter. By virtue of Section 36 of the 1999 Constitution, fair hearing is a fundamental principle of justice. It connotes doing all things which will make a reasonable observer in the court room satisfied that the trial is fair to both sides. Fair hearing does not contemplate the standard of justice which is biased in favour of one party and to the prejudice of the other. It places the demand of ambidexterity on the Judge as he navigates the proceedings in accordance with the twin pillars of justice, namely audi alteram partem and nemo judex in causa sua. Any judgment or ruling in breach of the constitutional provision of fair hearing will not be allowed to stand on appeal. See Orugbo V. Una (2002) FWLR (pt. 71) 1024 @ 1037; Ogundoyin V. Adeyemi (2001) F.W.L.R. (pt. 71) 1741 @ 1753; Donatus Ndu V. The State (1990) 7 NWLR 550 @ 578; Mohammed & Anor V. Olawunmi (1990) 2 NWLR 458 @ 485.

In the case at hand, the trial Judge heard the respondent’s counsel move his motion but refused appellant’s counsel the right of address even when his client for reasons already showcased in this judgment could not file a counter affidavit. A reasonable man who watched the trial court’s proceedings on 3/2/04 and 5/3/04, who heard the appellant’s counsel pray the court for an adjournment to enable the appellant file a counter affidavit to a motion for judgment on grounds that he was appearing for the first time in the matter and that the former counsel did not transmit the motion along with the file to him, in the alternative to be allowed to address the court; who observed the court refuse the application but proceeded to enter judgment against the appellant will definitely conclude that there was no fair hearing. In abiding by the principles of fair hearing, justice must not only be done but must be manifestly seen to be done.
To say the least, the procedure adopted by the learned trial Judge which did not give the appellant ample opportunity to present his case does not qualify as fair hearing under audi alteram partem rule and Section 36 (1) of the 1999 Constitution. In the circumstance, I hold that consequent upon the fact that the learned trial Judge did not exercise his discretion in the application for adjournment judicially and judiciously and did not in the circumstances of the case invite the appellant’s counsel to address the court before entering judgment against his client, the appellant’s right to fair hearing was breached. The resultant effect therefore is that the judgment of the lower court is a nullity.
Having held that the judgment of the lower court is a nullity, it is unnecessary to proceed to resolve issue No. 3 as that will amount to a judicial exercise in futility. Accordingly, I set aside the ruling and judgment of the High Court of Benue State sitting at Makurdi in Suit No. MHC/244/2004 delivered on the 5th day of March, 2004. The appeal of the appellant succeeds and the same is hereby allowed. The case is remitted back to the lower Court to be heard by another Judge of the High Court of Benue State. I make no order as to costs.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A: I have had the privilege of reading in draft, the Judgment of my learned brother, Onyemenam, JCA just delivered. I am in entire agreement with the reasoning and conclusion therein.
The proceedings of the Lower Court of 05/03/2004 when the respondent’s motion for Judgment came up for hearing reveal that not only did learned counsel for the appellant (1st defendant) request for an adjournment on the ground that he had just been briefed and did not receive a copy of the motion paper from the previous counsel, he sought alternatively to be allowed to address the court on points of law in opposition to the said motion. Believing that the appellant had admitted the respondent’s claim, the learned trial Judge did not rule on whether or not learned counsel would be permitted to address the court and proceeded instead to enter judgment in the respondent’s favour. (See pages 27-30 of the record).
This was notwithstanding the fact that the appellant had filed a statement of defence and counter claim (pages 7-10 of the record) where he contended that he was the deemed holder of the right of occupancy in respect of the land sold to the respondent and that the grant of same to one Charles Obunde by the 2nd defendant (Bureau of lands and survey Makurdi not a party to the appeal) was wrongful. He alleged collusion between the said Charles Obunde and officials of the 2nd respondent and sought a declaration of title in his favour.
It is against the backdrop of these pleadings that the appellant admitted before the trial Court on 03/02/2004 that he sold the land to the respondent for N330, 000.00 in 2001. He maintained that the land belonged to him and that he had a right to sell it. He stated that he wanted to settle the matter out of Court and had offered an alternative plot to him.
With due respect to the learned trial Judge, the utterances of the appellant on that day could not be deemed to be an admission of the respondent’s claim. He did not agree that consideration had failed because he maintained that he had a right to sell the land.
Having regard to the pleadings before the court and the fact that learned counsel for the appellant, Mr. Sule, had just been briefed in the matter, the interest of justice dictated that the learned trial Judge ought to have afforded him the opportunity of putting his house in order or allowing him to address the court on points of law.
It is settled law that fair hearing in a cause or matter should never be sacrificed in the altar of speed. See: Ndukauba V. Kollomo & Anor. 2005 4 NWLR (915) 411 @ 438 E-F, Ogli Oko Memorial Farms Ltd. & Ors. V. NACB Ltd. & Anor. (2008) Vol. 34 (part 11) NSCOR 1057 @ 1080 E-F.

The appellant’s right to fair hearing was clearly beached in this case. The proceedings are therefore a nullity. For these and the more detailed reasons ably advanced in the lead judgment, I also find merit in this appeal. I also allow it; I abide by the consequential orders including the order on cost.

ALI ABUBAKAR BABANDI GUMEL, J.C.A: I have had the privilege of reading before now the lead judgment of my learned brother, Onyemenam, JCA. I agree with the reasons and conclusions set out therein, I too, would allow this appeal. I also abide by all the consequential orders of my learned brother.

Appearances

For Appellant

AND

MR. M. ATONKOFor Respondent