DEMSA LOCAL GOVERNMENT V. JOKEMS NIGERIA LIMITED
(2012)LCN/5774(CA)
In The Court of Appeal of Nigeria
On Monday, the 3rd day of December, 2012
CA/J/100/2006
RATIO
FAIR HEARING: DOCTRINE OF FAIR HEARING
I wish to start by saying that the doctrine of fair hearing is an age long principle embodied in the natural justice principle of “Audi alteram partem” which literally hear the other side. It is a right which gives parties to a such equal opportunities of making representations in respect of the matter in contention. It is a constitutionally guaranteed right under section 36 of the 1999 constitution of Nigeria (as amended) and is therefore fundamental and sacrosanct in the determination of the civil right and liberties of parties to a dispute. In the case of Pam Vs. Mohammed (2008) 16 NWLR (Pt.1112) at page 13 & 11, the Supreme Court held inter alia:-
“The very sense of fair hearing under section 36 of the 1999 Constitution is a hearing which is fair to both parties to the suit be they Plaintiff or Defendants prosecution or defence. The Section does not contemplate a standard of justice which is based in favour of one party and to the prejudices of the other. Rather it imposes an ambidextrous standard of justice in which the court must be lair to both parties of the conflict… a party who will be affected by the result of a judicial inquiry must be given on opportunity of being heard, otherwise the action taken following the inquiry will be unconstitutional and illegal,,.”
The Principle of fair hearing entails that it is a two-way traffic. No wonder in the case of Newswatch Communications Vs. Alhaji Aliyu Ibrahim Atta (2006) 139 LRCN 1894, Belgore JSC (as he then was) at page 1919 paragraph F.K held thus:-
‘Right to be heard is a two edged sword to the plaintiff to be heard timeously and for the Defendant to avail itself the rights, constitutional rights, extended to it by the court to present its, side of the case. The courts must hear the parties, both parties to the case: but the court is not a slave of time that must wait indefinitely for a party to decide when to come to present its case. To delay hearing of a case deliberately is an abuse of court process which in turn defeats justice”. PER SOTONYE DENTON-WEST, J.C.A.
PROCEDURE: WHAT QUESTION OF AN ADJOURNMENT IN SUITS IS WITHIN
Furthermore, the question of an adjournment in suits is entirely within the discretion of the court and the court have been enjoined in exercising their discretion to take into consideration all the facts and circumstances of the case. See Udoji Nwadiogbu & ors. vs. Anambra Imo River Basin Development Authority & ANOR (2010) 189 LRCN 17. PER SOTONYE DENTON-WEST, J.C.A.
APPEAL: ATTITUDE OF THE APPELLATE COURT TOWARDS INTERFERING WITH THE DECISION OF THE TRIAL COURT
In any case adjournment is at the discretion of the Court and once from the bare face of the Record of Appeal, there is ample evidence as in this case that the learned trial Judge exercised his discretion judicially and judiciously taking into consideration the peculiar circumstances of the case and the rights of the parties, an Appellate Court like ours has no business interfering with the ultimate decision of the trial Court in this regard. See Offordile v. Egwuatu (2006) 1 NWLR (pt.961) 421; U.B.N. Plc v. Adjarho (1997) 6 NWLR (pt.507) 112; Imani & Sons Ltd V. Bil Const. Co. Ltd. (1999) 12 NWLR (Pt.630) 254.
In Oduba v. Hontmanangratch (1997) 6 NWLR (Pt.508) 185; the Supreme Court stated the position of the law inter alia:-
“A Court’s exercise of its discretion without averting to all the peculiar facts and circumstances of the particular case before it is as bad as its exercise upon a wrong principle. Also, if there is any miscarriage of justice in the exercise of a judicial discretion, it is within the competence of an appellate Court to have it reviewed”. PER IGNATIUS IGWE AGUBE J.C.A.
Before Their Lordships
SOTONYE DENTON WESTJustice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBEJustice of The Court of Appeal of Nigeria
ABUBAKAR ALKALI ABBAJustice of The Court of Appeal of Nigeria
Between
DEMSA LOCAL GOVERNMENTAppellant(s)
AND
JOKEMS (NIG) LTDRespondent(s)
SOTONYE DENTON-WEST, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling of Hon. Justice I. K. Banu of Adamawa State High Court delivered on 15th March, 2006.
The Respondent commenced an action against the Appellant at the trial court claiming the followings:
1. The sum of N5million being outstanding balance of a contract sum awarded to the Respondent by the Appellant herein.
2. 20% interest on the outstanding balance of N5 million.
3. The cost of litigation.
The writ was placed under undefended list but the Appellant brought a notice of intention to defend, consequently, it was transferred to the general cause list.
The full trial of the matter commenced and at the end of which the trial Judge entered Judgment in favour of the Respondent herein and ordered as follows:-
1. The Defendant known as Appellant herein shall pay to the plaintiff herein known as the Respondent the sum of N5 million only being the outstanding balance of contract sum for the electrification of Bwashi, Mugurang and Kodomun towns in Demsa Local Government Area.
2. The Defendant shall also pay to the Plaintiff 10% interest on the Judgment sum of N5 million which is N500,000.
3. The cost of N9,390 only to be paid to the plaintiff by the Defendant.
Against the above decision, the Appellant appealed to this court vide a notice of appeal filed on 24/14/2006 containing two grounds of appeal.
The Appellant in its brief of argument dated and filed on 20th June, 2011 and deemed filed on 21st June, 2011 submitted the following issues for determination:-
1. Whether the Appellant was given fair hearing by the trial court, as enshrined by Section 36 of the 1999 Constitution.
2. Whether the Appellant was given fair hearing by the trial court, when the court refused to allow it opportunity by way of adjournment to engage the services of another Counsel to handle its case.
The Respondent on its own part identified only one issue far determination i.e:-
Whether having regards to the facts and circumstances of this case, the Appellant could be said to haven been denied fair hearing by the trial court when it refused to grant adjournment and when it subsequently proceeded to give judgment in favour of the Respondent.
In the determination of this appeal, Appellant’s issue No. 1 shall be the focus of this court. This is because it covers other issues raised in the appeal. Whether the Appellant was given fair hearing by the trial court as enshrined by Section 36 of the 1999 Constitution.
In his argument, the learned Counsel for the Appellant Abubakar Sa’ad Esq. submitted that the trial court on the 17th January, 2005 ruled following an application of the Counsel to the Appellant as Defendant to withdraw his services to the Appellant as follows:-
1. If the Defendant and Chief J. R. Ndawalam are able to sort out their differences, Chief J. R. Ndawalam is to appear on the next date.
2. If they are however unable to sort out their differences, the Defendant has the choice of either bringing another Counsel or to proceed with their case without a Counsel, in short the case must proceed to hearing on the next adjourned date and referred to page 28 and 29 of the record of the proceedings.
On 8th February, 2006 according to the learned Counsel, a representative of the Defendant/Appellant was in court and informed the court that they were unable to resolve their differences with their Counsel and would therefore need adjournment, but the court refused and proceeded to trial. The Plaintiff called one witness and tendered 7 documents and referred to page 29 and 30 of the record of proceedings.
It was argued by the learned Counsel that the essence of fair hearing under Section 36 of the 1999 Constitution of Nigeria is to allow both parties be plaintiffs or Defendant’s, prosecution or defence an equal opportunity to be heard and he referred to the Supreme Court case of Pam Vs Mohammed (2008) 16 NWLR (Pt.112) at page 13 & 11.
It was argued that in the circumstances of this case, the trial court never gave the Appellants the opportunity to be heard, as it did not give the Appellant the privilege of adjournment to engage the services of another counsel of their choice. However, it was submitted that Section 36 of the constitution has provided for a person to be given reasonable time to be heard. The case of Pam vs Mohammed (supra) at page 18 and 20 was referred to where it was held as follows:-
“The words reasonable time in Section 30 of the 1999 Constitution are in their doule (sic) content vogue and rebulous. A reasonable time is justified by reason. Reasonable time in its rebulous content cannot be determined in vacuo (sic) but in relation to the facts of each case,
This is because what constituted reasonable time in one case may not necessary constitute reasonable time in another case”.
The holding of the court in Pam vs. Mohammed (supra) in ratio 21 per Niki Tobi was also referred to as follows:-
“Reasonable time in Section 36 presupposes the granting of an adjournment in a case…”
It was submitted that the Appellant was not given a reasonable time to present their case. Also that the right of fair hearing of a party can only be refused where all opportunity given to a party to present its case was not utilized by the party.
The case of Newswatch Communications Ltd vs. Attah (2006) 12 NWLR (Pt.993) at Pg.144 at 177 para, C- E where it was held by this court as follows:-
“A trial court can indulge a party in judicial proceedings for sometime, but not for all the time. Therefore, a trial judge has the right to withdraw his indulgence at any point in time when the fair hearing principle would be compromised, compounded or will not really be fair as it affect the opposing party…”
The learned counsel conceded that granting of an adjournment in a case is indeed at the discretion of a court but in the case of Usani v. Duke (2006) 17 NWLR (pt.1009) p.670 at p.619 ratio 6 and 8, at ratio 8 it was held inter alia on hearing of judicious that:-
“Judicious means acting with circumspection in the interest of both parties”.
It was finally submitted that the trial court did not consider interest of the Appellant when it proceeded to hearing of the suit despite the application for adjournment by the Appellant to settle with its counsel, the court was aware of the facts of the differences between the Appellant and its Counsel.
It was therefore contended by the Counsel that the trial court did not act judicially and judiciously in the matter and this court was urged to so hold.
On his own part, the learned Counsel to the Respondent A. J. Akanmode Esq. submitted that when the matter was adjourned to 17th January, 2006 for hearing, hearing could not commence as the Appellant had some differences with its Counsel, Chief J. R. Ndawalam. That ordinarily, the difference between a party and his Counsel should not be a reason for seeking adjournment for it was an internal affair between the Appellant and her Counsel and that should not have been the court’s business.
It was submitted however, that the trial court graciously adjourned the case to 8th February, 2005 but on certain conditions contained at page 28 of the record as follows:-
“I am adjourning the matter on the following conditions:-
1. If the Plaintiff (sic) and Chief J. R. Ndawalam are unable to sort out their differences, Chief J. R. Ndawalam is to appear on the next date.
2. If they are, however, unable to sort their differences, the plaintiff (sic) has the choice of either briefing another counsel or to proceed with their case without a counsel, in short the case should proceed to hearing on the next adjourned date. The case is adjourned to 8th February, 2006 for hearing”.
It was argued that on the 8th February 2006 when the case came up, the same representative of the Appellant who was in court on 17/1/2006 and at whose request the matter was adjourned to 8/2/2006 with all the conditions attached had this to say on page 28:-
“We are not ready and ask for adjournment as we could not resolve our differences with our Counsel Chief J. R. Ndawalom”.
It was submitted that the above application was opposed by the Respondent’s Counsel and further informed the court that the order for adjournment made on 17th January, 2005 was very clear. That the court at page 28 – 29 of the record stated thus:-
” I am of the view that the order I made on 17th January, 2006 in granting the Defendant’s request for adjournment is very clear and still stands. At the risk of repetition the condition under which I granted the adjournment to today”.
It was further submitted that the learned trial Judge on page 29 lines 10-20 as follows:-
‘The Defendant has not fulfilled day of the conditions I gave i.e Chief J. R. Ndawalom has not appeared on behalf of the Defendant and as the Secretary who is representing it has told the court, they have not resolved their differences with the said Chief J. R. Ndawalom. They have also not briefed any other Counsel after failing to sort out their said differences. They are also not prepared to proceed but are asking for an adjournment.
I am not prepared to grant the adjournment sought as I am convinced that I have given the Defendant enough time to prepare for their case against today. I will therefore abide by my order of 17th January, 2006 and proceed to hear the matter today since the Plaintiff has initiated that he is ready to proceed with his case and the Defendant has failed to fulfill any of the conditions under which I had granted the adjournment to today. The application for adjournment is therefore refused and I will proceed to hear the plaintiff accordingly”.
It was submitted that the Appellant’s counsel had argued that in failing to grant another adjournment at the Appellant’s request on 8/2/2006, the trial court did not accord the Appellant fair hearing. And that the Appellant should have been given another adjournment to either settle with his counsel or get another counsel.
The learned Respondents counsel submitted that happily, the Appellant’s counsel conceded in his brief of argument that the issue of adjournment is entirely at the discretion of the court and he agrees with him on this point. Further that what the Appellant’s counsel failed to show and which he was required to show was that the discretion of the trial Judge was wrongly exercised as a result of misconception of law or under a misapprehension of fact by considering irrelevant matter that are a trial court has properly exercised its discretion in a matter, the only way to convince an appellate court to interfere with that discretion is to show that the trial court acted under a misconception of law or took consideration irrelevant facts. He referred to the case of Udoji Nwodiogbu & ors. vs. Anambra Imo River Basin Development Authority & Anor. (2010) 189 LRCN 1.
The learned Counsel argued further that the Appellant would have had a point, if the request of 17/1/2006 was made by Chief J. R. Ndawalam in the absence of the Appellant and if Chief J. R. Ndawalam had failed to communicate to Appellant. However, it was the Appellant who personally made the request and he was quite aware of the conditions attached to the adjournment granted on 17/1/2006 against 8/2/2006.
It was submitted that the trial court cannot be faulted for proceeding with the hearing of the case on 8/2/2006. That the trial court made it abundantly clear to the parties that on 8/2/2006 the case must proceed to hearing and did inform the Appellant that his failure to settle with Chief J. R. Ndawalam or his failure to secure the services of another counsel would not stop the court from proceeding. That, according to the counsel was very clear in the court’s ruling of 17/1/2006. Also that the trial court was under a duty to proceed with the hearing on 8/2/2006 as it did. The holding of the court in the case of Udoji Nwodiogbu & ors vs. Anambra/Imo River Basin Development Authority & Anor (supra) at page 17 paragraph L and P was referred to in the wards of Muntaka Coomasie JSC said:-
“when a case has been ripe for hearing, the trial court must ensure the hearing of the case except it a party applying for adjournment showed sufficient reason why the case must be adjourned, that is by placing sufficient materials before the court upon which it can exercise its discretion, otherwise an adjournment of a case ripe for hearing would mean further delay to the other litigants who ought otherwise to have had their case heard”.
It was submitted that in refusing to grant the Appellant’s request for adjournment on 8/2/2006 and in proceeding to hearing the trial court properly and judiciously and judicially exercised his discretion and the request of the Appellant that this court should interfere with that discretion should be refused.
The learned Counsel argued that on 8th February, 2006, when the Respondent as Plaintiff opened and closed his case, the court adjourned the matter at the request of the Appellant to 8th March, 2006 for defence. That on the said 8th March, 2005 the Appellant neither came to court nor wrote any letter requesting for adjournment and that the Respondent’s Counsel who had closed his case on 8/2/2006 asked the court to adjourn the case. The court therefore adjourned the case for Judgment against 15/3/2006, with certain conditions. That on the 15th of March, 2006, surprisingly the Appellant was represented by a Counsel who said nothing. The court proceeded to Judgment.
It was submitted that the Appellant’s Counsel in his brief of argument contended that on 8th of March, 2006 when the Appellant who took the said date for defence neither came to court nor wrote any letter explaining reasons for absence or requesting an adjournment, the trial court ought to have granted an adjournment to another date for the Appellant to proceed with defence, the question according to the Counsel was if the trial Judge had granted an adjournment in favour of the Appellant, at whose request would it have been said that the adjournment was granted?
It was submitted that to insist that a court in the circumstances should have adjourned the matter for the Appellant to attend the court at the Appellant’s pleasure in the name of fair hearing is to carry the doctrine of fair hearing to a preposterous and ridiculous level.
The learned counsel submitted that in the case of Newswatch communications vs. Alhaji Aliyu Ibrahim Atta (2006) 39 LRCN 1894 (a case cited by the Appellant) Belgore JSC (as he then was) at page 1919 paragraph F. K said:-
“Right to be heard is a two edged sword-to the plaintiff to be heard timeously and for the Defendant to avail itself the rights, constitutional rights, extended to it by the court to present its side of the case, The court must hear the parties, both parties to the case: but the court is not o slave of time that must wait indefinitely for a party to decide when to come to present its case. To delay hearing of a case deliberately is an abuse of court process which in turn defeats justice”.
The learned counsel finally urged this court to dismiss the appeal and affirm the Judgment of the lower court.
RESOLUTION OF THE ISSUE.
Whether the Appellant was given fair hearing by the trial court as enshrined by Section 36 of the 1999 constitution.
I wish to start by saying that the doctrine of fair hearing is an age long principle embodied in the natural justice principle of “Audi alteram partem” which literally hear the other side. It is a right which gives parties to a such equal opportunities of making representations in respect of the matter in contention. It is a constitutionally guaranteed right under section 36 of the 1999 constitution of Nigeria (as amended) and is therefore fundamental and sacrosanct in the determination of the civil right and liberties of parties to a dispute. In the case of Pam Vs. Mohammed (2008) 16 NWLR (Pt.1112) at page 13 & 11, the Supreme Court held inter alia:-
“The very sense of fair hearing under section 36 of the 1999 Constitution is a hearing which is fair to both parties to the suit be they Plaintiff or Defendants prosecution or defence. The Section does not contemplate a standard of justice which is based in favour of one party and to the prejudices of the other. Rather it imposes an ambidextrous standard of justice in which the court must be lair to both parties of the conflict… a party who will be affected by the result of a judicial inquiry must be given on opportunity of being heard, otherwise the action taken following the inquiry will be unconstitutional and illegal,,.”
The Principle of fair hearing entails that it is a two-way traffic. No wonder in the case of Newswatch Communications Vs. Alhaji Aliyu Ibrahim Atta (2006) 139 LRCN 1894, Belgore JSC (as he then was) at page 1919 paragraph F.K held thus:-
‘Right to be heard is a two edged sword to the plaintiff to be heard timeously and for the Defendant to avail itself the rights, constitutional rights, extended to it by the court to present its, side of the case. The courts must hear the parties, both parties to the case: but the court is not a slave of time that must wait indefinitely for a party to decide when to come to present its case. To delay hearing of a case deliberately is an abuse of court process which in turn defeats justice”.In the instant case, the matter was adjourned to 17th January, 2006 for hearing at the instance of the Appellant but hearing could not commence as the Appellant had some differences with their Counsel, Chief I. R. Ndawalam. The court then adjourned the matter again to 8th February, 2006 and in the words of the trial Judge at page 28, he held thus:-
“I am adjourning the matter on the following condition:
1. If the Plaintiff (sic) and Chief J. R. Ndawalam are unable to sort out their differences, Chief J. R. Ndawalam is to appear on the next date.
2. If they are, however, unable to sort their differences, the plaintiff (sic) has the choice of either briefing another counsel or to proceed with their case without a counsel; in short the case should proceed to hearing on the next adjourned date. The case is adjourned to the February, 2006 for hearing”.
On the 8th February 2006 when the case came up, the same representative of the Appellant who was in court on 17th January 2006 and at whose request the matter was adjourned to 8/2/2006 with all the conditions attached had this to say on page 28:-
‘Wesley: We are not ready and ask for adjournment as we could not resolve our differences with our Counsel Chief J. R. Ndawalam”.
The court upon application for further adjournment by the representative of the Appellant held at 28-29 of the record as follows:-
I am of the view that the order I made on 17th of January, 2006 in granting the Defendant’s request for adjournment is very clear and still stands….”
In view of the reasoning of the trial lower court, the further adjournment sought by the Appellant was refused and the matter proceeded to Judgment. I must state here that although the constitution of the Federal Republic of Nigeria (as amended) under section 36 guarantees fair hearing to litigants, a party to such a right has the liberty to waive same either expressly or impliedly, such a party who waives such a right cannot turn round to complain that the right was seized from him. Thus, the primary duty of the court in obedience to the said Section 35 of the Constitution as regards to fair hearing give parties equal opportunity to present their case. Be that as it may, it is therefore not the business of the court how a party to a such engages a counsel. It is also not the business of the court the terms and conditions agreed by a party and his Counsel. This ought to be and indeed is an internal transaction which ought to be in the office of the Counsel and his client.
Furthermore, the question of an adjournment in suits is entirely within the discretion of the court and the court have been enjoined in exercising their discretion to take into consideration all the facts and circumstances of the case. See Udoji Nwadiogbu & ors. vs. Anambra Imo River Basin Development Authority & ANOR (2010) 189 LRCN 17.I hereby commend the trial Judge, Hon. Justice I. K. Banu for not granting frivolous and mischievously adjournments at the expense of dispensation of justice. The Appellant was given ample opportunity to present their case but slept while the opportunity elapsed. Therefore the trial court cannot be faulted by this court for proceeding with the hearing of the case up to delivery of Judgment.
In all, this appeal is hereby dismissed and the judgment of the lower court delivered on 15th March, 2006 including the orders made therein is affirmed.
No order as to cost.
IGNATIUS IGWE AGUBE J.C.A.: I have been opportuned to read the lead Judgment by my Lord the P. J. in advance. I agree completely that a party who has been indulged adequate time and facility to brief Counsel of his choice but failed to do so cannot stampede the Court or turn round to complain that he was not given fair hearing. There are authorities galore on this state of our law. In any case adjournment is at the discretion of the Court and once from the bare face of the Record of Appeal, there is ample evidence as in this case that the learned trial Judge exercised his discretion judicially and judiciously taking into consideration the peculiar circumstances of the case and the rights of the parties, an Appellate Court like ours has no business interfering with the ultimate decision of the trial Court in this regard. See Offordile v. Egwuatu (2006) 1 NWLR (pt.961) 421; U.B.N. Plc v. Adjarho (1997) 6 NWLR (pt.507) 112; Imani & Sons Ltd V. Bil Const. Co. Ltd. (1999) 12 NWLR (Pt.630) 254.
In Oduba v. Hontmanangratch (1997) 6 NWLR (Pt.508) 185; the Supreme Court stated the position of the law inter alia:-
“A Court’s exercise of its discretion without averting to all the peculiar facts and circumstances of the particular case before it is as bad as its exercise upon a wrong principle. Also, if there is any miscarriage of justice in the exercise of a judicial discretion, it is within the competence of an appellate Court to have it reviewed”.In the instant case a careful perusal of the Record of proceedings of the Court at pages 28 – 29 would reveal that the Court below obliged the Appellant the opportunity to either appear with Chief Ndawalam after sorting out their differences or Brief another Counsel to represent or still in the alternative appear to do her case by herself. The case was then adjourned from the 17th day of January, 2006 to 8th February, 2006 yet on the 8th day of February to which the case was adjourned, the Appellant represented by one Wesley still intimated the Court that they had not resolved their differences with Chief Ndawalam.
From all indications, the learned trial Judge judicially and judiciously exercised his discretion in accordance with the law and as laid down in Oduba’s case and there is no element if arbitrariness, vagueness, fancy or humour in the way the learned trial Judge exercised his discretion so as to infer miscarriage of justice.
Accordingly, I too cannot fault the decision by the learned trial Judge to proceed with the hearing of the case up to delivery of Judgment.
I shall also dismiss the Appeal and affirm the decision of the learned trial Judge and abide by the order as to costs.
ABUBAKAR ALKALI ABBA, J.C.A.: I read and agree 100% with Judgment and the lead Judgment which is written by Hon. Justice Sotonye Denton West, she dismissed this appeal. I also dismiss this appeal and affirm the decision and order, I agree with all the orders including no cost to either party.
This case is decision of the Hon. Justice I. K. Banu of Adamawa State High Court Yola.
a. The Defendant/Appellant pay Plaintiff/Respondent the sum of N5 million.
b. Appellant pay Respondent 20% of the N5 million.
c. Cost of litigation which was fixed N9,390.
By the lower court Judge, two Appellant issues are resolved in favour of the Respondent against the Appellant.
I agree that Section 36 of 1999 Constitution and case of Pam Vs. Mohammed (supra) define reasonable time by Ratio 2.1 par Niki Tobi (JSC).
I agree both parties were given good and reasonable time.
I agree that lower court Judge acted judiciously and judicially and so this Judgment cannot be faulted.
This appeal has no merit and it should be dismissed and it is hereby dismissed.
Decision of Hon. I. K. Banu delivered on 15th March, 2006 is affirmed and confirmed.
All the orders made are affirmed.
I also agree no order as to cost to either side.
Appeal No.:CA/J/100/2006 is Dismissed, I also commend the trial Judge Hon. Justice I. K. Banu.
Appearances
G. C. Adikwu and A. UmarFor Appellant
AND
A. J. Akanmode and Yakubu AhmaduFor Respondent
