DR. MADUIKE EZEIBE v. MRS. ADAKU EZEIBE (NEE GEORGE) (2013)

DR. MADUIKE EZEIBE v. MRS. ADAKU EZEIBE (NEE GEORGE)

(2013)LCN/6752(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of June, 2013

CA/OW/149/2012

RATIO

WORDS AND PHRASES: RIGHT TO FAIR HEARING

The right to fair hearing is one of the fundamental rights guaranteed to all persons in Nigeria, which cannot be derogated from by any person, institution or government. The right to fair hearing is an entrenched right and encompasses the twin pillars of natural justice recognized as audi alteram partem and nemo judex in causa sua i.e. both sides to a dispute should be heard before the judex can pronounce on the respective rights and obligations of the parties. The second leg is that no person should preside or determine on a dispute that affects his interests. See BAKARE v L.S.C.S.C (1992) NWLR (Pt. 262) p.641, BABA v. N.C.A.T.C. (1991) 5 NWLR (Pt. 192) p.388 and MOHAMMED v. OLAWUNMI (1990) NWLR (Pt.133) p.458. Per HARUNA SIMON TSAMMANI, J.C.A.

EFFECT OF FAILURE TO UTILIZE THE OPPORTUNITY OF BEING HEARD

It is now settled that, a party who had the opportunity of being heard but failed to utilize such opportunity, cannot be heard to complain that his right to fair hearing was breached. See Military Governor of Lagos State v. Adeyinka (2012) All FWLR (Pt. 616) 361; Adele Eke v. Ogbonda (2007) 1 MJSC 81; Amadi v. Adio (2006) All FWLR (Pt. 334). Per UWANI MUSA ABBA AJI, J.C.A.

PRE- CONDITIONS TO FAIR HEARING

The principles of fair hearing is a universal concept enshrined in section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Therein, all courts in the land have been enjoined to be given equal opportunity to the parties to a dispute to present and ventilate their cases in court. This right of fair hearing as entrenched in the constitution is a constitutional recognition of the twin pillars of nemo judex in causa sua and audi alteram partem. The basic attributes of this principle of fair hearing envisages inter alia that: –

(i) The court shall hear both sides to a dispute, not only on the case but also on all material issues in the case before reaching a decision which may be prejudiced to any parties in the case.

(ii) The court or tribunal gives equal treatment, opportunity and consideration to the parties concerned.

(iii) All the parties to be affected by the decision of the court be informed of and granted access to such place of the hearing which must be in public.

(iv) Having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly be seen to have been done.

Before Their Lordships

UWANI MUSA ABBA AJIJustice of The Court of Appeal of Nigeria

JOHN INYANG OKOROJustice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANIJustice of The Court of Appeal of Nigeria

Between

DR. MADUIKE EZEIBEAppellant(s)

AND

MRS. ADAKU EZEIBE (NEE GEORGE)Respondent(s)

UWANI MUSA ABBA AJI, J.C.A. (Delivering the leading Judgment): This is an appeal against the decision of the Customary Court of Appeal sitting in Umuahia, Abia State in a divorce suit in Appeal No. CCA/UM/21/2012 delivered on the 15th day of March, 2012.
In the Customary Court Mbawsi, in Isiala Ngwa North Local Government Area of Abia State, the Appellant as Petitioner in the trial Customary Court seeks for the following reliefs:
a) An order dissolving the marriage between the petitioner and the Respondent.
b) An order granting the custody of the four children of the marriage to the Petitioner.
The grounds of the petition are that the Respondent had exhibited acts of cruelty and infidelity towards him and that the marriage had broken down irretrievably as they lived apart for a period of three years.
Judgment was entered for the petitioner/Appellant on the 2nd day of August, 2010. The Respondent was dissatisfied with the decision of the trial court on the ground that she was not given a fair hearing.
The facts leading to this appeal as can be gathered from the records of appeal are that further hearing in the suit was adjourned to the 26th July, 2010, when PW1, the Petitioner was to continue with his evidence and for cross examination by the Respondent and also for the Respondent to open her defence.
On the hearing date, Learned Counsel for the Respondent informs the court of his observation that he wants the court to take judicial notice of. He says he observes that the entire court premises has been besieged by armed vigilante men and that they have come to maintain peace and that it was the Petitioner that invited them to come and maintain peace within the court premises. Learned counsel stated that they are opposed to the invitation of the vigilante men by the petitioner to maintain peace in the court. He asked for adjournment as he cannot perform under the present atmosphere. The Appellant’s counsel opposed the application and urged the court to direct the vigilante to leave the court premises even though it admitted they were aware of their presence in court. The court declined the application for adjournment but directed the vigilante to vacate the court premises.
The Respondent counsel said he is no longer in the right frame of mind to continue with the matter and applied for a short adjournment to enable him recover from the shock of the development. The application was opposed to by the Appellant’s counsel. The trial court agreed and refused the adjournment and directed the PW1 (Appellant) to continue with his evidence to conclusion in the absence of the Respondent’s Counsel. The trial court then foreclosed the Respondent from cross examining the PW1 and also foreclosed her from entering her defence and adjourned the matter to the 2nd day of August, 2010 for judgment. It is against the said judgment as stated earlier that the Respondent appealed to the Customary Court of Appeal.
In a considered judgment delivered on the 15th day of March, 2012, the Customary Court of Appeal allowed the appeal of the Respondent, set aside the judgment of the customary court and remitted the case to the Customary Court of competent jurisdiction for trial de novo. In allowing the appeal, the lower court held as follows:
“It is my view and I hold that the order of the trial Customary Court foreclosing the defence under the circumstances is a violation of the Respondent/Appellant’s right to fair hearing. As the opportunity was not given to the Respondent/Appellant to present her defence, it follows that the judgment procured by the trial Customary Court is not supported by any evidence led by the Respondent/Appellant and I so hold…” See page 129 to 130 of the Records of Appeal.
It is against the said judgment that the petitioner/Appellant appeared to this court vide a Notice of Appeal dated and filed the 28th March, 2012 upon a lone Ground of Appeal which is hereby reproduced shorn of its particulars:
Ground 1
That the learned trial judges of the Abia State Customary Court of Appeal erred in law when they held that the judgment of the Customary Court holden at Nbawsi District was a nullity on the ground that the Respondent was denied fair hearing which holding was perversed and did not flow from the proceedings of the lower court.
In compliance with the Rules of this Court, parties filed and exchanged briefs of argument. The Appellant’s brief of argument settled by J. O. J. Okpechi, Esq. nominated a sole issue for the determination of the appeal to wit.
Whether the Customary Court of Appeal sitting at Umuahia Abia State, was right in holding that the Respondent/Appellant and Respondent in the appeal was denied fair hearing at the Court of first instance, that is to say, the trial Customary Court.
The Respondent’s brief of argument settled by K. E. Enyioma – Goodfriend, Esq. also nominated a sole issue for determination to wit:
Whether the Customary Court of Appeal sitting at Umuahia, Abia State was right in holding that the Respondent/Appellant and Respondent in this appeal was at the Customary Court Mbawsi denied fair hearing.
At the hearing of the Appeal on the 6th day of May, 2013, Learned counsel for the Appellant, J. O. J. Okpechi, Esq. adopted and relied on the Appellant’s brief of argument dated and filed on the 2nd July, 2012 and the Appellant’s Reply brief dated 1/8/2012 and filed on the 2nd August, 2012 and urged the Court to allow the appeal.
The Respondent’s counsel, K. E. Enyioma – Goodfriend, Esq. adopted and relied on the Respondent’s brief of argument dated and filed the 18th day of July, 2012 and urged the Court to dismiss the appeal.
I have considered the two issues formulated by the Appellant’s counsel and that of the Respondent and they appear to be the same in con, I will therefore adopt the issue formulated by the Appellant in the determination of the Appeal.
In arguing the sole issue, learned counsel for the Appellant referred to page 122 lines 11 – 12 of the records of appeal to submit that the learned presiding judge at the trial court erroneously found that the security men or vigilante were invited by the petitioner and that the Respondent’s counsel was incapable of functioning that day as regard cross examining the petitioner or enter defence on the same 26th day of July, 2010 petitioners evidence was concluded. He stated that, the trial court ruled that it heard from the chairman of the security men that “they would be here today on a routine duty” that day being the 26th day of July. 2010. That the court, in its magnanimity ordered the security men out of court and its premises thereby creating the enabling environment for the absent Respondent and her counsel to open their defence. On the duty on court to create an opportunity and an environment for justice administration learned counsel referred the court to Adele Eke v. Ogbonda (2007) IMJSC page 181, Amadi v. Adio (2006) All FWLR (Pt. 334).
He argued that the learned presiding judge did not advert her mind or appraise herself to the incessant absences of the Respondent and her counsel at the trial customary court Mbawsi and the fact that it became common on the part of the Respondent to be using one reason or the other to be delaying the hearing, He submitted that, a party who fails to take advantage of the environment or opportunity of fair hearing created by the court cannot complain of denial of same, having been aware of the dates and adjournments, he cited Military Governor of Lagos v. Adebayo Adeyinka (2012) ALL FWLR at 616 at 396, 399 – 400 to submit that where a party has been given ample opportunity to present his case, cannot turn around to complain of fair hearing.
Learned counsel therefore urged us to hold that the findings of the learned presiding judge are with respect perverse. According to the learned counsel, a finding is perverse when it runs counter to evidence and pleadings or where it is shown that the trial court took into account matters which ought not to have been taken into account or shut its eyes to the obvious. He cited Isiaq v. Soniyi (2009) ALL FWLR (Pt. 498) 347 at 384; Rabiu v. Kano State (1980) FNR, 509 at 52; Mini-Lodge Ltd v. Ngei (2010) ALL FWLR (Pt. 506) 1806 at 1829 – 1830 and urged the Court to resolve the issue in his favour and allow the appeal.
In his response, learned counsel for the Respondent submitted that on the 26th July, 2010, the Respondent counsel informed the court about the infiltration of armed vigilante men who invaded the court premises and that they admitted that they were there at the invitation of the petitioner/Appellant and neither the Petitioner/Appellant nor his counsel denied it. He argued that the presence of armed men was capable of destabilizing the mind of Respondent counsel’s thereby making him unable to function on that day. He then referred to the proceedings of 5th July, 2010, on the day the court adjourned to 26th July, 2010 for definite conclusion of the evidence in chief of PW1, cross examination of PW1 by Respondent’s counsel, and for the defence to open. Learned counsel argued that, if the evidence in chief of the PW1 was concluded on that day, and everything went on well, there was no guarantee that the Respondent would have finished her evidence in one day, in consideration of the fact that the petitioner used four days to conclude his evidence in chief.
Counsel contended that the lower court’s attitude is contrary to section 36 of the 1999 constitution of the Federal Republic of Nigeria, which requires that parties must be given an equal opportunity to present their cases to the court. This, according to learned counsel, stems from the two common law principles of natural justice: audi alterem patem and nemo judex in causasua. Counsel argued that the meaning of the first one is “hear the other side” but that only the Petitioner was heard. He cited Inakoju v. Adeleke Rashidi Ladoja (2007) 29 NSCQR 958 ratio 27.
Learned counsel for the Respondent further contended that, constitutionally, the trial court, not giving the Respondent the opportunity to be heard, amount to a deprivation of her constitutional right guaranteed by section 36(1) of the constitution of the Federal Republic of Nigeria which is translated to; no citizen of this country may be allowed to suffer any deprivation in a court of law without being given the opportunity to contend the allegation against him. He referred this court to Inakoju v. Adeleke Rashidi Ladoja (Supra).
Counsel also argued that the denial of fair hearing which the Respondent has suffered in the instant case is a fundamental one as it is a Constitutional issue and the effect is no less than to make the entire proceedings a nullity by setting aside the judgment as the Respondent has suffered a miscarriage of justice. He cited Tsokwa Motors v. UBA (2008) 33 NSCQR p. 33. Learned Counsel urged to dismiss the appeal.
The Appellant’s reply brief has not addressed any fresh issue in the argument of the Respondent as is contained in the Respondent’s brief of argument.
The need for a reply brief arises where the Respondent in his brief raises a fresh issue which requires the Appellant to respond to. In this case, the briefs filed by both parties adequately, in my view addressed the issue of fair hearing which is the crux of the argument in this appeal. As the Respondent has not raised any fresh issue, the Reply brief is unnecessary and is hereby discountenanced.
The central issue in this appeal is whether the Respondent at the trial court was given fair hearing. The Respondent at the lower court had complained that she was not given fair hearing at the trial court in accordance with section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria.
The complaint stems from her inability through her counsel to cross examine the Petitioner/Appellant after his evidence in chief on the 26/7/2010. The trial customary court had adjourned the matter from 5/7/2010 to 26/7/2010 for the conclusion of examination in chief, cross examination of the petitioner, and defence to commence. On the said 26/7/2010, there was presence of armed vigilante group who it was alleged came on the initiation of the petitioner. The trial court chairman after admitting that he had pre-information of their coming and upon request from the Respondent’s counsel ordered the vigilante group out of the court to create an atmosphere conducive for justice administration.
The learned counsel for the Respondent in the trial court, irrespective of the departure of the armed vigilante men, felt he was still unable to perform his professional duty in the customary court on the ground that the shock and trauma he experienced from the presence of the armed vigilante group had robbed him of the required composure in the temple of justice. Learned Counsel made an application for an adjournment orally thus:
“I owe it as a duty to defend my client in this matter but since I am no longer now in the right frame of mind, I apply for a very short adjournment to enable me recover from the shock of the development” See page 166 of the records.
The principles of fair hearing is a universal concept enshrined in section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Therein, all courts in the land have been enjoined to be given equal opportunity to the parties to a dispute to present and ventilate their cases in court. This right of fair hearing as entrenched in the constitution is a constitutional recognition of the twin pillars of nemo judex in causa sua and audi alteram partem. The basic attributes of this principle of fair hearing envisages inter alia that: –
(i) The court shall hear both sides to a dispute, not only on the case but also on all material issues in the case before reaching a decision which may be prejudiced to any parties in the case.
(ii) The court or tribunal gives equal treatment, opportunity and consideration to the parties concerned.
(iii) All the parties to be affected by the decision of the court be informed of and granted access to such place of the hearing which must be in public.
(iv) Having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly be seen to have been done.

Therefore, where a trial court fails or neglects to observe any of the above stated pre-conditions to a fair hearing, a serious breach of the constitutionally guaranteed right to fair hearing under section 36(1) of the constitution would have been occasioned. See Adigun v. A. G. Oyo State (1987) 1 NWLR (Pt. 53) 678; Saleh v. Monguno (2003) 1 NWLR (Pt. 801) 221; Usani v. Duke (2004) 7 NWLR (Pt. 871) 116; Bangboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290; S & D Const. Co. Ltd. v. Ayoku (2011) 13 NWLR (Pt. 1265) 487; Odigwu v. JSC Delta State (2011) 10 NWLR (Pt. 1255) 251; Ovunwo v. Woko (2011) 17 NWLR (Pt. 1277) 522.
In the instant case, the Respondent appeal to the Customary Court of Appeal which was allowed was built on a breach of the audi alteram partem principle in that she was not heard in the matter before judgment was pronounced against her. The essence of this principle; audi alteram partem is that, a verdict should not be pronounced or entered against a man on a matter relating to his civil rights and obligations before a court or tribunal without his being given an opportunity to be heard. Thus, a denial of the right to be heard is a breach of the principles of natural justice as enshrined in the Constitution. See Gbadamosi v. Dairo (2007) 3 NWLR (Pt. 1021) 282; Imaseun v. University of Benin (2010) 3 NWLR (Pt. 1182) 591; Ajayi v. N.U.R.T.W. (2009) 8 NWLR (Pt. 1144) 423.
In the instant case, the Appellant’s complaint is that the Respondent was not denied a fair hearing and that if the lower court had adverted its mind to the incessant absence of the Respondent and her counsel at the trial court to delay the hearing of the suit, and the Respondent having failed to take advantage of the opportunity of fair hearing created by the court, the lower court would not have held that the Respondent was denied a fair hearing.
Let me at this juncture go through the records of appeal to determine as the Appellant alleged whether the Respondent was given ample opportunity to defend her case but neglected to do so, even though no such reference to the records was made by the learned counsel for the Appellant to buttress his assertion that the Respondent was given a fair hearing.
The last four times the matter came before the trial court were 5/5/2010, 1/6/2010, 22/6/2010, 5/7/2010 and 26/7/2010. On 5/5/2010 the records at page 15 has it thus:
“parties are in court. The matter is for definite hearing. H. U. Chukwuemeka Esq. is for the petitioner, while Obinna Uwajimba is for the Respondent.”
The PW1 was sworn on bible and elected to testify in English Language. At the end of his evidence in chief for the day the court adjourned to 1/6/2010.
On 1/6/2010, the record of proceedings on page 153 indicated thus:
“parties are in court. H. U. Chukwuemeka Esq. is for the petitioner while Obinna Uwajimba Esq. for the Respondent.”
Proceedings went on and the business of the court was hitch free. The matter was adjourned to the court to 22/6/2010. On 22/6/2010 it was only the petitioner that was in court. The matter was for definite conclusion of evidence in chief of PW1 and cross examination of PW1 by Respondent counsel. Counsel for the Respondent sent in a letter praying for an adjournment on the ground that he had a case at the High Court Aba in charge No. A/12C/2009 – State v. Charapunam Okwunna. The matter was adjourned to 5/7/2010. There were no proceedings on the 5/7/2010 from the records of the appeal.
However on the 26/7/2010, the matter was for a definite conclusion of the evidence of the PW1 and the cross examination of PW1 by the Respondent’s counsel. The petitioner’s counsel was represented by H. U. Chukwuemeka of counsel. But the Respondent and her counsel were absent.
Shortly after, Respondent’s counsel appeared, announced appearance, and apologized for the absence of the Respondent.
A critical observation of the dates this matter came up at the trial customary court will reveal that the Respondent counsel absented himself out rightly on the 22/6/2010, on the ground that he was prosecuting a criminal case at the High Court of Aba, in consequence of which he sought for an adjournment and the suit was adjourned to 5/7/2010. There were no proceedings on the 5/7/2010 from the records. The only reasonable inference in the circumstance is that the court did not sit. On the 26/7/2010 was the day learned counsel alleged he could not cross examine the petitioner and needs an adjournment because of the presence of the vigilante in the premises of the court that robbed him of the required composure to present the case of the Respondent. Whereby the trial court foreclosed the Respondent’s from cross examining the Petitioner/Appellant and to enter her defence and adjournment for judgment and the trial court did deliver its judgment on the 2nd day of August, 2010.
It is now settled that, a party who had the opportunity of being heard but failed to utilize such opportunity, cannot be heard to complain that his right to fair hearing was breached. See Military Governor of Lagos State v. Adeyinka (2012) All FWLR (Pt. 616) 361; Adele Eke v. Ogbonda (2007) 1 MJSC 81; Amadi v. Adio (2006) All FWLR (Pt. 334).
In the instant case, it is clear that since the inception of the case, it was once that the Respondent applied for an adjournment and same was granted by the trial court. With the development on the 26/7/2010, I am unable to agree with the submission of the learned counsel for the Appellant that the trial court created a right environment for the Respondent to prosecute its case. It is clear from the proceedings that the Respondent was completely shut out not only from cross examining the Appellant but also from presenting her own defence and judgment was delivered against. The trial court ought to judicially and judiciously exercise its discretion to grant a short adjournment to the Respondent’s counsel considering the circumstances that played out. In the circumstances, the decision of the lower court that Respondent was not given a fair hearing cannot be faulted. It is impeccable. A perverse judgment which may call for the intervention of the Appellant court is one that was persistent in error, different from what is reasonable or required or where the judge took into account matters which he ought not to have taken into account or where the judge shuts his eyes to the obvious. See Atolagbe v. Shorun (1985) 1 NWLR (Pt. 2) 360; Ukatta v. Ndunaze (1997) 4 NWLR (Pt. 499) 257 at 276; Ndili Kinsumade (2000) 8 NWLR (Pt. 668) 39; Egba v. Appa (2005) 20 NWLR (Pt. 934) 464.
In the instant case, the decision is not perversed. The lower court properly considered the record before it and came to the conclusion that the Respondent was not given a fair hearing and I so hold.
The trial court failed to afford the Respondent the opportunity to cross examine the Petitioner/Appellant and to present her defence. The Customary Court of Appeal was therefore right when it held that the Respondent was not given a fair hearing. A decision of a trial court which is given in breach of fair hearing as enshrined in section 36(1) of the 1999 Constitution (as amended) is null and void. In other words, where a court decides an issue or action without hearing or giving the parties or one of the parties the opportunity to be heard, such a decision is a nullity. Thus in the instant case, the trial court neither heard nor gave the Respondent the opportunity to cross examine the Appellant and present her defence, the judgment of the trial court is a complete nullity and the lower court was right to have declared it so and set it aside.
The trial customary court was much in a haste. It rushed justice and crushed it. I therefore resolved this sole issue against the petitioner/Appellant.
The appeal therefore lacks merit and is hereby dismissed. The judgment of the lower court in Suit No. CCA/UM/12/2011 delivered on the 15th day of March, 2012 is hereby affirmed. The suit is remitted to the trial court for hearing de novo.
I make no order as to costs.

JOHN INYANG OKORO, J.C.A.: I was privileged to read in draft the judgment of my learned brother, UWANI MUSA ABBA AJI, J.C.A. just delivered. I agree with the court below and also the conclusion of my learned brother that the trial Customary Court unduly rushed its judgment and in the process occasioned a miscarriage of justice. When the vigilante group besieged the trial court premises on the invitation of one of the parties, the respondents felt insecure and asked for an adjournment. The discretion of the Customary Court judges to continue with the proceedings in spite of these armed gangs was improperly exercised. For me learned counsel for the respondent acted rightly to leave the court to secure his life. It was therefore wrong for the trial court to continue the matter without the respondent herein and his counsel. In other words, the respondent was denied fair hearing in the matter. Fair hearing, as provided for in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) is a fundamental right the breach of which attracts dire consequences. In fact all the proceedings, including the judgment generated therefrom, are a nullity and of no legal consequence. And also, in a judicial or quasi-judicial proceedings, for a hearing to be fair, it must include the right of the person to be affected as follows:
1. to be present either by himself of by his counsel all through the proceedings and hear all the evidence against him;
2. to cross-examine or otherwise confront or contradict all the witnesses that testify against him;
3. to have read before him all the documents tendered in evidence at the hearing;
4. to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial to the party, save in recognized exceptions;
5. to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and
6. to give evidence by himself, call witnesses if he likes and make oral submissions either personally or through a counsel of his choice.
See BABA v. NCATC (1991) 5 NWLR (pt. 192) 388, N.A.B. KOTOYE v. CBN & ORS. (1989) 1 NWLR (Pt. 98) 419; MOHAMMED v. KANO N. A. (1968) 1 ALL NLR 424 at 426.
The speed which the trial Customary Court rushed this case in its court leaves much to be desired. The respondent herein was denied the right to defend the claim against him. Definitely the judgment generated by that court cannot be allowed to stand. The judgment is null and void. I agree with my learned brother, ABBA AJI, J.C.A. that the Customary Court of Appeal was right to set aside the said judgment. This appeal lacks merit and is hereby dismissed by me. I abide by all consequential orders made in the lead judgment. I also make no order as to costs.

HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading in draft form, the judgment just delivered by my learned brother, UWANI, MUSA ABBA AJI, J.C.A.
The pertinent issue that arose for determination in this appeal was adequately considered and resolved by my learned brother. I agree with his reasoning and conclusion that the appeal lacks merit and should be dismissed.
The right to fair hearing is one of the fundamental rights guaranteed to all persons in Nigeria, which cannot be derogated from by any person, institution or government. The right to fair hearing is an entrenched right and encompasses the twin pillars of natural justice recognized as audi alteram partem and nemo judex in causa sua i.e. both sides to a dispute should be heard before the judex can pronounce on the respective rights and obligations of the parties. The second leg is that no person should preside or determine on a dispute that affects his interests. See BAKARE v L.S.C.S.C (1992) NWLR (Pt. 262) p.641, BABA v. N.C.A.T.C. (1991) 5 NWLR (Pt. 192) p.388 and MOHAMMED v. OLAWUNMI (1990) NWLR (Pt.133) p.458.
In the instant case, when the Appellant concluded his testimony on the 26/7/2010, the trial Customary Court had a duty to afford an opportunity to the Respondent to cross-examine him. Even if the trial Court felt that the Respondent did not merit an adjournment that day for the purposes of cross-examining the Appellant, it should have recognized that the Respondent had the right to be given an opportunity to prepare for his defence. In any case, the cross-examination of his adversary is an intergral part of the fundamental right to fair hearing which the trial Customary Court had no power to toy with. As would be seen, the trial Court denied the Respondent the right to cross-examine his opponent and to prepare or present his defence, and thereby truncated the constitutionally guaranteed right of the Respondent to a fair hearing. See section 36(2) of the 1999 constitution and BABA v. N.C.A.T.C (supra). The Customary court of Appeal was therefore right when it held that the trial Customary Court breached the Respondent’s right to fair hearing.
I abide by the consequential order made in the lead judgment.

Appearances

J. O. J. Okpechi, Esq.For Appellant

AND

K. E. Enyioma Goodfriend, Esq.For Respondent