ELIZABETH IHUOMA IZUBUIKE v. THE CUSTOMARY COURT OBINGWA HOLDEN AT AGALABA & ORS (2016)

ELIZABETH IHUOMA IZUBUIKE v. THE CUSTOMARY COURT OBINGWA HOLDEN AT AGALABA & ORS

(2016)LCN/8394(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 23rd day of March, 2016

CA/OW/314/2010

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDERICK OZIAKPONO OHO Justice of The Court of Appeal of Nigeria

Between

ELIZABETH IHUOMA IZUBUIKE Appellant(s)

AND

THE CUSTOMARY COURT OBINGWA HOLDEN AT AGALABA
THE CHAIRMAN COURT AND MEMBERS CUSTOMARY COURT OBINGWA HOLDEN AT AGALABA,
CHIEF E. N. AJUZIE HON. CHIEF ABRAHIM,
MR. P. O. ORJI
CHUKWUNONSO NWAKUDU Respondent(s)

RATIO

COURT: JURISDICTION OF COURTS; SITUATIONS WHERE THE COURT OF APPEAL WILL INTERFERE WITH THE EXERCISE OF DISCRETION OF THE COURT OF TRIAL

It is also settled law that the Court of Appeal will not interfere with an exercise of discretion by a Court of trial unless it is satisfied that it was not exercised judicially and judiciously. For this, see ANYAH vs. A. M. N. LTD. (1992) NWLR (PT. 247) 319; IMONIKHE vs. ATTN. GEN-BENDEL (1992) NWLR (PT. 248) 396; AJOMALE vs. YADUAT (2) (1991) 5 NWLR (PT. 191) 266 in support.
The sum total of authorities on the issue is that this Court will always interfere with an exercise of discretion by the Court below if it is satisfied that the result of such an exercise was to occasion injustice. PER. FREDERICK OZIAKPONO OHO, J.C.A.

APPEAL: FAIR HEARING; THE PROPER WAY FOR THE TRIAL COURT TO AVOID APPEALS AND OR ALLEGATIONS OF DENIAL OF FAIR HEARING FROM OCCURRING
In practical terms, scenarios of this nature in the course of trial often do occur and the proper way to avoid Appeals/ and or allegations of the denial of Fair Hearing of this nature occurring, is for the trial Court to have been patient enough to go through the usual rituals of the trial process of first ensuring that all processes for service on the opposing party or parties have been made, including the service of hearing notices as appropriate and where necessary. When these have been done clearly to the satisfaction of the Court, with necessary affidavit of service of processes in the neatly tucked into the case file, the Plaintiff may then be asked to present his case, whether the Defendant is present in Court or not. Upon the Plaintiff’s conclusion of his case, where this is still done in the absence of the Defendant, it will be necessary to adjourn the case, and once again to order the service of hearing notice on the Defendant asking him to come forward to conduct a cross examination of the Plaintiff. Where the Defendant still does not come to Court to conduct a cross examination, the Plaintiff is then formally discharged from the witness box and the closure of the Plaintiff?s case is announced and recorded. The Court does not proceed to deliver judgment just this yet, but causes another adjournment to be granted. This time, specifically, for purposes of calling on the Defendant to open its Defense. This adjournment is to be accompanied with the necessary order to issue hearing notices to that effect, calling on the Defendant to come forward to open its Defense. It is after the Defendant has been accorded all these opportunities and he still fails to come to Court, the case is once again adjourned for judgment. Anything short of this standard cannot under any stretch of imagination be said to have amounted to according the Defendant a fair hearing. In the case of ATTORNEY GENERAL OF RIVERS STATE vs. UDE (2007) ALL FWLR (PT. 347) 598, the Supreme Court per MUSDAPHER, JSC had this to say on the subject;
“A hearing of a matter in Court cannot be said be fair if any of the parties appearing before the Court is refused a hearing or is denied the opportunity to be heard or present his case or call evidence; see for example MIL. GOVERNOR, IMO STATE vs. NWAUWA (1997) 2 NWLR (PT. 490) 675. The right to fair hearing is a fundamental constitutional right guaranteed by the constitution of the Federal Republic of Nigeria 1960, 1979, and 1999, and a breach of it in trials or adjudication vitiates the proceedings rendering the same null and void and of no effect.” PER. FREDERICK OZIAKPONO OHO, J.C.A.

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): In Suit No: CC/AG/7/2006 at the Customary Court Obingwa, the Petitioner and 3rd Respondent’s Claim in a Petition for the dissolution of his Marriage endorsed thereon is as follows;
1. An Order of the Honourable Court for the dissolution of the Customary Marriage contracted between the Petitioner and the Respondent in October, 2000.
2. An Order of the Honourable Court granting the Petitioner guardianship of the Children of the who being minors are staying with their mother/Respondent.
3. And for such further Order or Orders as the Honourable Court may deem fit to make in the circumstances.

The 3rd Respondent as Petitioner in the Lower Court filed for dissolution of the marriage between the Appellant and himself at the Customary Court, Obingwa, and sitting at Agalaba. Plea before that Court was taken on the 4-3-2006 wherein the Appellant as Respondent pleaded liable to the 1st arm of the claims. The case was adjourned for hearing and on four consecutive subsequent adjournments, the Appellant as Respondent before the Lower Court was absent in Court and the

case adjourned at her instance. On 22-6-2006 the 3rd Respondent as the Petitioner testified for himself and called no witness and the case was adjourned to 26-6-2006 for cross-examination by the Respondent. On the said 26-6-2006, the 3rd Respondent/ Petitioner was present but the Appellant/Respondent was absent and no reason was adduced for her absence. The case was further adjourned to the 3-7-2006 for cross-examination of the 3rd Respondent/Petition. On the 3-7-2006, both parties were present and Appellant/Respondent obstinately decline to cross examine the Petitioner saying that she is over and done with the marriage. The Petitioner/3rd Respondent then applied for adjournment to enable him make peace in the matter.
The trial Customary Court adjourned the matter to the 2-8-2006 for report of settlement/judgment. On the 1-11-2006 the trial Customary Court gave judgment dissolving the marriage between the Appellant and the 3rd Respondent and granted custody of the three (3) children of the marriage to the Appellant to be returned to the 3rd Respondent on attainment of six (6) years of age. The Court further awarded the sum of N4,000.00 (Four Thousand

Naira Only) against 3rd Respondent to the be paid to the Appellant for the upkeep of the children while in custody of the Appellant. The Appellant, in contending that the trial Customary Court gave her no opportunity to defend herself, she applied to the High Court of Abia State Obingwa Judicial Division for Judicial Review for an application of a writ of Certiorari to quash the proceedings and judgment of the 1st and 2nd Respondents. The said application was refused on the ground that the Appellant having pleaded liable to the 1st arm of claim for dissolution of marriage and pleaded not liable to the 2nd arm which is for custody, that it was needless to give him an opportunity to open her defense and possibly call evidence and witnesses.

Thoroughly aggrieved with the decision of the High Court of Abia State, sitting at Obingwa and delivered by Hon. Justice S. F. Analaba on the 22nd day of February, 2010, the Appellant/Respondent has appealed to this Court vide a Notice of Appeal filed on the 12-3-2010. In the Notice of Appeal, there are three (3) Grounds of Appeal filed, which are reproduced without their particulars as follows;
GROUNDS OF

APPEAL:
1. The learned trial Judge erred in law when he refused the Appellants application for certiorari quashing the proceedings together with the judgment of the Customary Court Agalaba delivered on 1-11-2006.
2. The learned trial Judge erred in law when it held that there was no evidence of breach of Appellant?s fair hearing by the trial Customary Court (1st and 2nd Respondents).
3. Further Grounds will be filed upon receipts of the records.

SOLE ISSUE FOR DETERMINATION:
There is identified only an issue by the Appellant for the determination of this Court as follows; “Whether the Appellant’s right to fair Hearing was breached”. On the part of the 3rd Respondent only an issue was also identified for the determination of this Court, to wit;
Whether the Lower Court was right when it dismissed the Appellant/Applicant’s application for Certiorari to quash the proceedings and decision of the Customary Court Obingwa, Holden at Agalaba.”

Except for reasons of differences in semantics, the issues nominated by both parties for the Court’s determination are basically the same as

both issues speak and seek to redress the allegations of breach of fair hearing/ and or the refusal to grant the application for Certiorari of the of the Appellant. For this reason, this Appeal shall be decided on the basis of the sole issue identified by the Appellant herein. Learned Counsel in their briefs of argument addressed Court extensively and cited plethora of authorities. At the hearing of the Appeal on the 28-1-2016 the Appellant’s brief of argument dated the 29-9-2014 but filed on the 3-10-2014 was settled on behalf of the Appellant by UGONNA IHEDIWA Esq. The 3rd Respondent’s brief of argument dated the 26-2-2014 was filed on the 26-2-2014. This brief was settled on behalf of the Respondent by UCHE C. IHEDIWA, Esq.

ARGUMENTS BY APPELLANT’S COUNSEL;
Learned Appellant’s Counsel argued that issues of fair hearing are of seminal importance in our jurisprudence, as they touch on the jurisdiction of the Court, which can be raised at anytime with or without the leave of Court. Counsel cited the case of WAPPAH vs. MOURAH (2006) 12 NWLR (PT. 1010) 17, where the Court stated thus;
“Fair hearing as encompassed in

the 1979 and 1999 Constitution is not an imaginary proposition. It is a state of affairs that consists of many ingredients. Fair hearing under the Constitution is an entrenched fundamental right. It encompasses not only compliance with the rules of natural justice – audi alteram partem and nemo judex in cause sua also entails compliance with the provisions of Section 33 and 36 of the two Constitutions respectively. It also entails doing, during the cause of trial whether civil or criminal trial all the things which will make an impartial observer leaving the Court room to believe that the trial has been balanced and fairs to both sides of the trial. All that is required for a fair hearing is that a party to an action should be heard. Where the right has been breached in a judicial proceeding, its breach vitiates the entire proceeding. Therefore when the Appellate Court finds that the right to fair hearing is breached it shall have no alternative but to allow the appeal.”

Learned Counsel also cited the case of UDE vs. EDET (2010) 6 NWLR (PT. 1190) AT 386, where the Court laid down the requirement of natural justice vis-a -vis fair hearing

as follows:
“One basic requirement of natural justice is that a party should be given an opportunity to state his case without let or hindrance. The rule of audi altarem partem postulates that the Court must hear both sides at every material stage of the proceedings before handing down a decision. It is a rule of fairness and the Court cannot be said to be fair unless it considers both sides of the case as may be presented by the parties. If any of the parties is refused or denied a hearing or is not given an opportunity of being heard, such hearing cannot qualify as a hearing under the audi altarem partem.”

Counsel contended that in the instant case, it was after the 3rd Respondent stated his case that the Court immediately adjourned for judgment without allowing the Appellant an opportunity to open her defense and be heard by calling witnesses if any even when the Appellant pleaded not liable to the 2nd arm of his claim for custody.

It was the submission of Counsel that in a hearing where a party is not allowed to state his or her own case no matter how useless or baseless it may seem cannot be said to be fair. Counsel further

submitted that the High Court of Abia State erred in law when it held that it was needless to hear from the Appellant since she refused to cross examine the 3rd Respondent/Petitioner on the ground that she wants the marriage to be dissolved. Counsel argued that the Court failed to avert its mind to the fact that the Appellant pleaded liable to the claim for dissolution of the marriage and pleaded not liable to the claim for custody of children. Counsel further submitted that the Appellant having pleading not liable to the 2nd arm of the 3rd Respondents/Petitioner?s claim ought to have been afforded an opportunity to be heard at least on the said 2nd arm of claim which she challenged.

On the decision of the High Court, where the Court held that it was needless to give the Appellant an opportunity to be heard simply because she made it known that she wanted the marriage dissolved, Counsel submitted that the Appellant as a Respondent before the trial Court was entitled to an opportunity to open her defense by calling evidence or witness and that it never mattered that the same decision would have been reached if the Appellant had been heard. Counsel

cited the case of UDE vs. EDET (Supra) on this point where the Court said thus;
?When persons who are entitled to be heard before an order of Court is made are not heard, such persons by operation of Section 36 (1) of the 1999 Constitution are not bound by any order made against their interests, because the order is null and void. It does not matter that the same decision would have been reached if the persons had been heard.?

See also SALAU vs. PARA-KOYI (2001) 13 NWLR (PT. 731) AT 602.

Against this backdrop, Counsel therefore submitted that the Abia State High Court sitting at Obingwa erred in law when it upheld the erosion of the Appellant?s right to fair hearing by the trial Court and stated thus:
“As can be seen the applicant has alleged that there was a breach of fair hearing. The matter was for dissolution of the marriage between application and the 3rd Respondent. 3rd Respondent had concluded his evidence in chief and even had a second thought which is to save the marriage. He did applied to the Court for further adjournment to enable him try a settlement but the applicant Respondent was not minded for any

further negotiations for the prolonging of the marriage. She rather desired nothing more than the dissolution of the marriage. She even did not even bother to ask any question. Court did not ask her to give any evidence, that was clearly understandable. She had made her intention to dissolve the marriage known to the Court while the 3rd Respondent Petitioner was applying for further adjournment for the purpose of trying peaceful resolution. I have asked myself this question which is as to what further evidence the applicant Respondent would have given at that moment. Was there any further defense available for a decided woman who no longer wanted that the marriage between her and the 3rd Respondent? Asking her to defend was in my candid view absolutely baseless and unnecessary. Consequently there was therefore no evidence of breach of fair hearing.”

It was argued by learned Counsel that from the above quoted decision of the Abia State High Court it was clear to the Court who also admitted that the Appellants right to fair hearing was denied her in that she was not given an opportunity to be heard. Counsel said that the Court justified the reason

for the denial because according to the Court, the Appellant had decided that she no longer wanted the marriage by pleading liable to the first arm of claim and pleaded not liable to the 2nd arm. According to Counsel the Court erred, when it simply said that by “asking her to defend was in my candid view absolutely baseless and unnecessary”. It was submitted by Counsel that the Court’s reason is strange to our jurisprudence and where it is elementary law that every party to a proceeding must be given an opportunity to be heard. It was further submitted that the Court was wrong when without hearing from the Appellant concluded that her defense would be baseless and unnecessary without giving the Appellant the opportunity to ventilate the unnecessary defense. Counsel urged the Court to hold that the Appellant’s right to fair hearing was grossly breached.

Learned Counsel contended that it is only when an opportunity is given to a party and the party does not utilized same that any denial of fair hearing can be justified. Counsel cited the case of BONKALANS INVEST. LTD vs. C.S.C.S. (2010) 5 NWLR (PT. 1186) 182 where the Court held that

there is no principle of equity that can be invoked to justify the denial of hearing. This is because the concepts of equity and justice by their nature demand that when what a Court will end up doing will materially affect someone, then that person should be heard. Counsel also cited the case of EZEANWAJI vs. UNIVERSITY OF NIGERIA (2007) ALL FWLR (PT. 398) 954, where the Court held that hearing cannot be said to be fair if any of the parties is refused a hearing or denied the opportunity to be heard, present his witnesses or call evidence. See also the case of MILITARY GOVERNOR OF IMO STATE vs. NWAUWA (1997) 2 NWLR (PT. 490) 675.

It was argued by Counsel that it is the duty of every judge while adjudicating in a matter as a rule to do substantial Justice in each case before him and weigh same on an imaginary scale having regard to the evidence adduced and the legal principles applicable to the case. He said that the judge must put the evidence adduced by both the Plaintiff on one side of the scale and that of the Defendant on the other side of the scale and weigh them together. It is only then Counsel said that Justice can be said to have been manifestly

seen to be done when the trial judge weighs the evidence of both the Plaintiff and the Defendant and thereafter determine the probative value of the evidence of both parties. Counsel said that where therefore evidence of both parties are not weighed together or the evidence of only one party is weighed, justice is said to have been raped. Counsel cited the case of EZENWAJI vs. UNIVERSITY (SUPRA) in support.

Learned Counsel contended that the appropriate thing to have been done by the Court before adjourning the matter for judgment was to have given the Appellant an opportunity to be heard at least on the 2nd arm of claim she pleaded not liable to so that the Court have the opportunity of weighing the evidence of both parties on an imaginary scale before making the order awarding custody of the children of the marriage to the 3rd Respondent. He pointed out that as it can be shown on the record the trial Court below after hearing from the 2nd Respondent/Petitioner adjourned the matter for report of settlement or for judgment and when there was no settlement the Court rushed and gave judgment for the 3rd Respondent. It was therefore, submitted that the

Customary Court Obingwa failed to avail the Appellant an opportunity of opening her defense by calling witnesses or evidence as required. In this connection, Counsel argued that this is not the law as the Court must give the Appellant an opportunity to open her defense and that it is only when the Appellant failed to open the said defense that the Court can adjourn for judgment. Counsel urged the Court to so hold. Counsel cited the cases of EKE vs. OGBONDA (2007) ALL FWLR (PT. 351) 1456 and ATTORNEY GENERAL OF RIVERS STATE vs. UDE (2007) ALL FWLR (PT. 347) 598 in support.

It was further contended by Counsel that the Appellants right to fair hearing was further breached when the Court awarded custody of the 3 children to the Petitioner/Respondent even when the Respondent did not prove the Customary law marriage between him and the Respondent as no evidence was laid as to the payment of bride price and carrying of bride to the grooms house. He emphasized that no evidence was laid by the Petitioner/3rd Respondent on bride price and yet the Court gave him judgment and awarded custody to him. It was therefore submitted by Counsel that the absence of this piece

of evidence in the Petitioner?s case makes it fatal. Counsel cited the cases of MOTOH vs. MOTOH (2011) ALL FWLR (Pt. 58) 170 and AGBEJA vs. AGBEJA (1985) 3 NWLR (Pt. 11) 11.

It was further submitted that the failure of the Petitioner/Respondent to give evidence that the bride price of the Appellant was returned is fatal to his case. Counsel cited the case of OKWUEZE vs. OKWUEZE (1989) 4 NWLR (PT. 115) 321 where the Supreme Court held that for a customary law marriage to be dissolved there must be evidence of return of pride price. Counsel also cited the case of EZEAKU vs. OKONKWO (2012) 4 NWLR (PT. 1291) 529 C.A where the Court stated thus:
“A marriage under native law and custom can only be dissolved by a Court. And it is not sufficient that one of the parties to the marriage declares that he or she no longer wants the other. A marriage under native law and custom can only be dissolved either unilaterally or by mutual consent, subject to the refund of dowry.”

Learned Counsel contended that from the evidence of the Petition/Respondent there is no evidence that the bride price of the Appellant was refunded. This, Counsel said is

fatal to the case of Petitioner and even robs the Court of any jurisdiction to entertain the matter. He added that the Court was therefore wrong to have granted him his claim and he urged the Court to so hold. It was also contended that the issue of custody of children of a marriage cannot be awarded without calling evidence and hearing from both parties as a failure to do with will result in a denial to the right to be heard on the issue. See the case of UDE vs. EDE (Supra).

It was also submitted by learned Counsel that the award of custody of a child or children of a marriage must be based on evidence which must show or disclose that the interest of the child will be best protected by a party. Counsel said that the Petitioner/Respondent never gave evidence on custody or neither did his evidence contain anything to show that the interest of the children will be best protected if the Court grants him custody. Counsel said that the Petitioner even admitted that he is an apprentice which shows he cannot provide the necessaries for the children. He said that the Appellant was not heard on whether or not she can be best protect the interest of the children

and that no evidence was given as to custody of these children. To this end, it was contended by Counsel that in awarding custody to any of the parties, the Court is enjoined to take as its paramount consideration, the interest of the children. In this connection, Counsel referred the Court to Section 71 of the Matrimonial Causes Act and the case of DAMULAK VS. DAMULAK (2007) 8 NWLR, where the Court stated thus:
?In all matters relating to custody and welfare of child of the marriage the dominant issue that calls for careful examination and consideration is the absolute interest of that child or those children and in giving effect to the paramount of a child interest in matrimonial matters, a number of well settle consideration must first be attended to. An order for custody of the child of the marriage must necessarily postulate that there is on ground adequate arrangement for the sound education as well as those for physical and mental welfare of the said child.?

Counsel drew attention of Court to the case of NWOSU vs. NWOSU (2012) 8 NWLR (PT. 1301) 1 CA which he said is impari materia with the instant case where the

Petitioner/Respondent filed a petition for dissolution of marriage and asked for custody. And that the Appellant pleaded liable to the dissolution of marriage but pleaded not liable to the claim for custody. According to Counsel that the trial Court dissolved the marriage and gave custody of the children to the Respondent without hearing from the Appellant. He said that on appeal the Court set aside the judgment on the ground that the Appellant was not afforded the opportunity to be heard on the claim for custody. Counsel finally urged the Court to resolve the sole issue in favour of the Appellant.

ARGUMENTS OF RESPONDENT’S COUNSEL;
Learned Respondent’s Counsel opened his arguments on this issue by referring to this Court?s decision in the case of ESABUNOR vs. FAWEYA (2008) 12 NWLR (PT. 1102) 808 where GALINJE, JCA adopted the Black’s Law Dictionary 6th Edition definition of the writ of certiorari as follows;
“A writ of common law origin issued by a superior to inferior Court requiring the latter to produce a certified record of a particular case tried therein. The writ is issued in order that the Court issuing the

writ may inspect the proceedings and determine whether there have been irregularities.”

According to learned Counsel, this Court also commented on the definition where his Lordship said at page 808 to 809 Paragraphs H to A as follows;
“Certiorari is a prerogative writ of Common Law origin available to the High Court in its exercise of its supervisory control over Inferior Tribunal or Courts to ensure that these Tribunals or Courts do not commit any irregularity.”

Counsel also cited the case of EFFURIBE vs. UGBAM (supra), where he said it was clearly stated that the power of the High Court to quash the proceedings of an inferior Tribunal or body is discretionary and that the Court of Appeal would not question the exercise of discretion by a Lower Court except the same was not exercised judicially and judiciously. Counsel cited the following cases in support. AJUWA vs. S. P. D. C. N. LTD (2011) 18 NWLR (PT. 1279) 797; N.D.I.C. vs. LAGOS STATE GOVT. (2011) NWLR (1229) 629. Counsel argued that the Appellant?s grouse with the Lower Court is that it should have quashed the part of the proceedings of the Customary Court

dissolving the marriage on the grounds that the Appellant was not given a fair hearing. It was postulated by Counsel that the Right of a citizen of Nigeria to fair hearing is entrenched in Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended. Counsel further argued that a trial conducted in breach of the right to fair hearing is a nullity and that in UBA vs. EFFIONG (2011) 16 NWLR (PT. 1272) 84 AT 110 MIKA?ILU, JCA in his concurring judgment said at page 110 Paragraph F-G.
“The right to fair hearing is fundamental. The resultant effect of its breach is the invalidation of the proceedings. The breach renders the proceedings null and void.”

See also: the cases of MIDEN SYSTEMS LTD vs. EFFIONG (2011) 2 NWLR (PT. 1213) 354; ODIONG vs. OFFIONG (2011) 16 NWLR (PT. 1272) 111 and TIPPI vs. NOTANI (2011) 8 NWLR (PT. 1249) 285 cited in support by learned Counsel. It was the contention of learned Counsel that the test for determining whether a person was given fair hearing in a trial was re-stated by the Supreme Court in ARIORI vs. ELEMO (1983) 1 SCNLR 1 where the Court said:
“That fair hearing involves

situations where, having regard to all the circumstances of a case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the Tribunal was fair to all the parties.”

See also; KALU vs. STATE (2011) 4 NWLR (PT. 1238) 429; OGUNSANYA vs. STATE (2011) NWLR (PT. 1261) 401; ISIYAKU vs. KANO NATIVE AUTHORITY (1969) 1 ALL NLR 424. It was also argued by Counsel that where a party has been afforded the opportunity to be heard, he cannot complain of breach of fair hearing. He cited the case of REYNOLDS CONSTRUCTION COMPANY LTD vs. OKPEGBORO (2000) 2 NWLR (PT. 645) 367 @ 374; where AKINTAN, JCA stated thus:
“The requirement that equal treatment, equal opportunity or equal consideration be given to all concerned is however not breached in a situation where a party was afforded the opportunity to be present at the trial to present his case or to defend himself but he deliberately refused to avail himself of such an opportunity through his own neglect or tardiness. Since the Law does not aid the indolent. The rule only comes to play where a party is denied any opportunity to be heard. It is not applicable to

a defendant who fails to appear to defend can action against him.”

See also the cases of MUHAMMED S.M.D. vs. TERSOO KPELAI (2001) 6 NWLR (PT. 710) 700 and NDABA NIG. LTD vs. U.B.N. PLC (2009) 13 NWLR (PT. 1158) 256 at 322 in support.

Learned Counsel reproduced the proceedings at the Customary Court at page 41 of records which he referred to as the gravamen of the facts giving rise to this Appeal. Given its pivotal importance learned Counsel had to reproduce same as a foundation for the analysis which he sought to do in demonstrating before this Court the fact that ample opportunity was given to the Appellant which she failed or refused and/or neglect to take advantage of in defending her case before the trial Lower Court. To this end the following excerpts from page 41 of the records are instructive;
“On the 22nd June, 2006, the Petitioner was present while the Respondent was absent. It would be recalled that the Respondent has been absent from Court for five consecutive times without any reason. The dates were as follows: 10/5/2006, 5/6/2006, and 19/6/2006. On 22nd June, 2006 when she was again absent from Court, the Bailiff, in

the open Court reported that hearing notice was served on the Respondent on the 12/6/2006. At that juncture, the Petitioner said that he was ready to go on with his matter in the absence of the Respondent.”

In the learned Respondent’s Counsel analyses of the facts vis-a-vis the law, he drew attention to the fact that the 3rd Respondent prayed the Court for the dissolution of his marriage to the Appellant and that having emphatically said in open Court that she was no longer interested in the marriage despite a plea for reconciliation by the Appellant, the question posed by Counsel is; whether any dispassionate person, given the facts and circumstances can say that the Appellant was not granted fair hearing?
Counsel had to pose this question in the midst of the facts which show that the Appellant did not attend the Court for six times are: 10/5/2006, 5/6/2006, 8/6/2006, 19/6/2006, 22/6/2006 and 26/6/2006 despite the fact that she had been served with hearing Notices.

To clearly demonstrate the fact that the Appellant was given ample opportunity to defend himself, Counsel told Court that on the 22-6-2006, the 3rd Respondent

presented his case and the matter was adjourned for cross-examination to 26-6-2006. And that on the 26-6-2006, when the Appellant did not come to Court; the matter was once again adjourned to the 3-7-2006. That on the 3-7-2006 when she was asked to cross-examine, she vehemently said there was no need to do so. Counsel said that it was this position that prompted the Court into adjourning the matter to the 2-8-2006 for report of settlement or judgment. Against this backdrop learned Respondent?s Counsel submitted that where a person failed to utilize the opportunity given to him to present his case on the authorities of REYNOLDS C. C. LTD vs. OKPEGBORO (Supra), NDABA NIG. vs. UBN PLC (Supra), the Appellant cannot complain that she was not given the opportunity to be heard.

As it has to do with the grant of the consequential orders made by the Customary Court Counsel said that, that should be the subject of an appeal to the Customary Court of Appeal. He made clear the fact that a writ of certiorari in this case has to do with whether the Appellant has fair hearing or not. Perhaps, as a parting shot, Counsel cited the case of OKWUTE vs. NWADIKE (2009) 5

NWLR (PT. 1134) 360 @ 375 where the Court held thus:
“A party complaining that he has been denied fair hearing under the Constitution of the Federal Republic of Nigeria ought to remember that in a civil case, a balance has to be struck between the Plaintiff’s right to have his case heard expeditiously and the Defendant’s right to put across his defense to the Plaintiff’s suit. Where the party has been afforded the opportunity to put across his defense and he fails to take advantage of such opportunity, he cannot later turn around to complaint that he was denied a right to fair hearing process created by the Court cannot turn around to accuse the Court of denying him fair hearing because equity aids the vigilant and not the indolent.”

Counsel finally urged the Court to dismiss this Appeal and affirm the decision of the Lower Court.

RESOLUTION OF APPEAL;
This Court agrees with learned Counsel for the Respondent that the question whether or not to grant the writ of certiorari is one that is within the discretion of the trial Judge. This point has been made abundantly clear in a number of decided cases. It is also

settled law that the Court of Appeal will not interfere with an exercise of discretion by a Court of trial unless it is satisfied that it was not exercised judicially and judiciously. For this, see ANYAH vs. A. M. N. LTD. (1992) NWLR (PT. 247) 319; IMONIKHE vs. ATTN. GEN-BENDEL (1992) NWLR (PT. 248) 396; AJOMALE vs. YADUAT (2) (1991) 5 NWLR (PT. 191) 266 in support.
The sum total of authorities on the issue is that this Court will always interfere with an exercise of discretion by the Court below if it is satisfied that the result of such an exercise was to occasion injustice. But the question that has arisen in this Appeal is whether the learned trial judge was right in exercising his discretion against the Appellant and refusing the grant of order of certiorari in view of the clear facts of this case?

The question to address here is whether the Lower Court was right when it stated in such clear terms as recorded in the printed Records at page 10 of the Lower Court?s judgment as follows;
“She even did not even bother to ask any question. Court did not ask her to give any evidence, that was clearly understandable. She had made her

intention to dissolve the marriage known to the Court while the 3rd Respondent Petitioner was applying for further adjournment for the purpose of trying peaceful resolution. I have asked myself this question which is as to what further evidence the Applicant/Respondent would have given at that moment. Was there any further defense available for a decided woman who no longer wanted that the marriage between her and the 3rd Respondent? Asking her to defend was in my candid view absolutely baseless and unnecessary. Consequently there was therefore no evidence of breach of fair hearing.”

Perhaps, the quickest and easiest way to the resolution of the issues raised in this Appeal is to begin by asking whether the Appellant was indeed given a fair hearing when the matter was never adjourned for Defense and the Appellant given an opportunity to defend herself. This Court has carefully taken into consideration what transpired before the trial Customary Court as reproduced from the records of proceedings at page 41. There is no gainsaying the fact that the Appellant was not given ample opportunity to put her defense forward before the lower trial Court

delivered its judgment in the matter. But where the lower trial Court probably made the mistake which may succeed in turning the tides in this case was to have allowed itself to be hoodwinked and/or mislead by the outbursts of the Appellant who said in open Court that she was no longer interested in the marriage. To be interested in contesting the divorce petition is one thing and to be allowed to contest other aspects of the petition especially for the dissolution of the marriage and also for the award of maintenance in which the issue of custody of children is involved is another thing. The Lower Court?s rather hasty decision to quickly dispense with the need to call upon the Appellant to present her defense despite her decision not to contest the divorce is clearly unsupportable in the circumstances.
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It would be recalled that on the 22-6-2006, the 3rd Respondent presented his case and the matter was adjourned for cross-examination to 26-6-2006. The Appellant on the said 26-6-2006 did not come to Court and the matter was once again adjourned to the 3-7-2006. On that 3-7-2006 when she was present in Court and asked to conduct a cross-examination,

she was recorded as having vehemently said there was no need to do so. As a result of this answer, the lower trial Court was prompted into adjourning the matter to the 2-8-2006 for report of settlement or judgment or judgment and when there was no settlement the Court hurriedly went and gave judgment for the 3rd Respondent. The question to perhaps, address at this point is without having called on the Appellant to enter her Defense, can it be said that the Appellant was given an opportunity to defend herself by calling witnesses and presenting evidence in the circumstances of this matter?
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In practical terms, scenarios of this nature in the course of trial often do occur and the proper way to avoid Appeals/ and or allegations of the denial of Fair Hearing of this nature occurring, is for the trial Court to have been patient enough to go through the usual rituals of the trial process of first ensuring that all processes for service on the opposing party or parties have been made, including the service of hearing notices as appropriate and where necessary. When these have been done clearly to the satisfaction of the Court, with necessary affidavit of

service of processes in the neatly tucked into the case file, the Plaintiff may then be asked to present his case, whether the Defendant is present in Court or not. Upon the Plaintiff’s conclusion of his case, where this is still done in the absence of the Defendant, it will be necessary to adjourn the case, and once again to order the service of hearing notice on the Defendant asking him to come forward to conduct a cross examination of the Plaintiff. Where the Defendant still does not come to Court to conduct a cross examination, the Plaintiff is then formally discharged from the witness box and the closure of the Plaintiff?s case is announced and recorded. The Court does not proceed to deliver judgment just this yet, but causes another adjournment to be granted. This time, specifically, for purposes of calling on the Defendant to open its Defense. This adjournment is to be accompanied with the necessary order to issue hearing notices to that effect, calling on the Defendant to come forward to open its Defense. It is after the Defendant has been accorded all these opportunities and he still fails to come to Court, the case is once again adjourned

for judgment. Anything short of this standard cannot under any stretch of imagination be said to have amounted to according the Defendant a fair hearing. In the case of ATTORNEY GENERAL OF RIVERS STATE vs. UDE (2007) ALL FWLR (PT. 347) 598, the Supreme Court per MUSDAPHER, JSC had this to say on the subject;
“A hearing of a matter in Court cannot be said be fair if any of the parties appearing before the Court is refused a hearing or is denied the opportunity to be heard or present his case or call evidence; see for example MIL. GOVERNOR, IMO STATE vs. NWAUWA (1997) 2 NWLR (PT. 490) 675. The right to fair hearing is a fundamental constitutional right guaranteed by the constitution of the Federal Republic of Nigeria 1960, 1979, and 1999, and a breach of it in trials or adjudication vitiates the proceedings rendering the same null and void and of no effect.”

The learned judge of the High Court while therefore considering the application for certiorari therefore erred in law when he allowed himself to be carried away Appellant’s decision before the trial who said that she was no longer interested in the marriage. Not being interested

in a marriage does not mean the same as calling on the trial Customary Court to deny her of her rights to defend herself or at least be heard on the question of the custody of the children of the marriage who had all along been with her. It is also to be said here that the learned High Court judge was also erroneous in the consideration of the issues involved when he hastily concluded that there was no other Defense available to the Appellant simply because she said she was no longer interested in the marriage. In the Court’s conjecture, “Asking her to defend was in my (the Court’s) candid view absolutely baseless and unnecessary”.

In the final analysis, this Appeal succeeds and the judgment of the High Court of justice, Imo State, sitting at Obingwa and delivered on the 22-2-2010 is hereby set aside and in its place an Order of Certiorari granted bringing into this Court the proceedings, judgment and Orders of the Customary Court Agalabar made on 1-11-2006 for purposes of its being quashed and it is HEREBY QUASHED. Cost of N50,000.00 awarded against the 3rd Respondent.

IGNATIUS IGWE AGUBE, J.C.A.: I

had the privilege to have read in advance the judgment just delivered by my learned brother Frederick O. Oho, JCA.

My learned brother has in his usual erudition comprehensively considered and resolved all the pertinent issues that arose in this appeal. I agree with his reasoning and conclusions reached thereon. Thus, it is also my view and I do hold that this appeal succeeds. I also award N50,000.00 against the 3rd Respondent. I abide by the order on Costs.

PETER OLABISI IGE, J.C.A.: I have been afforded opportunity to read before now the judgment just delivered by my Lord, OHO, JCA.

?I agree with the conclusion reached in the judgment.

Appearances

UGONNA IHEDIWA, Esq.For Appellant

AND

UCHE C. IHEDIWA, Esq.For Respondent