EZE VINCENT LOUIS OKORO v. SAMUEL ONYEBUENYI & ORS (2014)

EZE VINCENT LOUIS OKORO v. SAMUEL ONYEBUENYI & ORS

(2014)LCN/7552(CA)

In The Court of Appeal of Nigeria

On Friday, the 21st day of November, 2014

CA/PH/298/2002

RATIO

APPEAL: ISSUES FOR DETERMINATION; WHETHER ISSUES FOR DETERMINATION MUST RELATE TO A GROUND OF APPEAL

Issue for determination in an appeal has been well defined and pontificated upon in many decisions to be a guide to arguments and submissions to be advanced in support of a ground or grounds of appeal. I call in aid the apex Court recent decision in the case of NIDOCCO LIMITED VS. MRS. D.A. GBAJA BIAMILA (2013) 14 NWLR (PART 1374) 350 at 379 C – D per NGWUTA, JSC reiterate it as follows?:
“In Chief Imonikhe & Anor. V. A. G. Bendel & ORS (1992) 6 NWLR (PART 248) 396 at 407, this Court held that an issue for purposes of appeal is a substantial question of Law or fact or both arising from grounds of appeal filed in the appeal which when resolved one way or the other will affect the result of the appeal.”

Therefore any issue raised or nominated for determination of an appeal must have a bearing or relates to a ground or many grounds of appeal combined out of which an issue is raised. See BARRISTER ORKER JEV & ANOR. VS. SEKA V. AZUA YORT YOM & ORS. (2014) 14 NWLR (PART 1428) 575 at 608 G – H where OKORO, JSC said;
“The Law is no doubt settled that any issue, or issues formulated for determination of an appeal must be distilled from, or must arise or flow from a competent ground or grounds of appeal”.
In effect any issue hanging in the balance or outside the ground or grounds of appeal will be taken to be alien to the ground or grounds of appeal and same is liable to be struck out.
See: SUNKANMI ADEBESIN VS. THE STATE (2014) 9 NWLR (PART 1413) 609 at 638 c – E per NGWUTA, JSC who said:
“Rather than get rid of the excess luggage as it were the Lower Court proceeded to resolve the three issues distilled from only two grounds of appeal. So far there is nothing in the record from which bias could be inferred. It is the respondent who should complain that the Court below leaned in favour of the Appellant to resolve issues framed in outright breach of established principle of formulation of issues in appeal. One of the issues does not relate to any ground of appeal and ought to have been struck out as incompetent. See Ugo V. Obiekwe (1989) 12 SC (Pt. II) 41; (1989) 1 NWLR (Pt. 99) 566; Ono V. JSC, Delta State, (2000) 7SC 1 at pages 106 – 107” per. PETER OLABISI IGE, J.C.A.

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO FAIR HEARING; THE PRINCIPLE OF FAIR HEARING
The right to natural justice or fair hearing before an impartial arbiter for the determination of his or her rights and obligations is the mighty confidence a litigant has in approaching the citadel of justice, the Court, to ventilate his or right against his neighbour or government and authorities. Equal opportunity must be given by a Court seised of a matter to all sides to the dispute to present their case before the Court. The Judge Presiding over the Court must be ready and prepared at all times to enforce and ensure the observance of the principles of fair hearing as embodied or enshrined in section 36(1) of the Constitution which provides that:

“In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and Constituted in such manner as to secure its independence and impartiality.”
The law needs no restatement that the constitution of Nigerian, protects the rights of every Nigerian to fair hearing both in civil and criminal matters. It is guaranteed to every person the right not to be condemned unheard or in absentia. See the case of (1) ADEBAYO OGUNDOYIN & ORS. V. DAVID ADEYEMI & ORS (2001) 13 NWLR (PART 730) 403 at 420 where ONU JSC said:
“The grouse in this issue in centred on the principle of fair hearing as enshrined in the Section 33(1) of the Constitution of the Federal Republic of Nigeria, 1999 (now Section 36(1) at the 1999 Constitution of Nigeria) which provides as follows:-
“In the determination of his civil rights and obligations including any questions or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.”
“Each party to a dispute before a court of law or any other tribunal must be given fair hearing not only to allow each to state his own case in court or before a tribunal but also to give each party notice of the date of hearing and place of hearing which is the principle of audi alteram partem. The principle arise from the rule of naturl justice. Fair hearing is also a rule of natural justices.”

His Lordship continued on page 423 C-D as follows: “It is indeed trite law that a party who will be affected by the result of a judicial enquiry must be given opportunity of being heard, otherwise the action taken following the inquiry will be unconstitutional and illegal.” per. PETER OLABISI IGE, J.C.A.

CONSTITUTIONAL LAW: FUNDAMENTAL RIGHT TO FAIR HEARING; THE RESULT OF ANY PROCEEDING CONDUCTED IN BREACH OF A PARTY’S RIGHT TO FAIR HEARING

It is also well settled that any proceedings conducted in breach of a party’s right to fair hearing, no matter how well conducted would be rendered a nullity.
See: Tsokwa Motors (Nig.) Ltd. Vs. U.B.A. Plc., (2008) All FWLR (Pt. 403) 1240 @ 1255 A – B, (2008) 1 SCM, 204; Adigun Vs. A. G. Oyo State (1987) 1 NWLR (Pt. 53) 674; Okafor Vs. A. G. Anambra State (1991) 3 NWLR (Pt. 200) 59; Leaders & Co. Ltd. Vs. Bamaiyi (2010) 18 NWLR (Pt. 1225) 329; (2010) 12 (Pt. 2) SCM, 120. per. PETER OLABISI IGE, J.C.A.

EVIDENCE: BURDEN OF PROOF; THE BURDEN A LEGAL PRACTITIONER OR HIS CLIENT WHO MAKES AN ALLEGATION OF JUDICIAL BIAS AGAINST THE PERSON OF A JUDGE TO PROVE IT AND WHAT SUCH ACCUSER MUST ESTABLISH TO SUCCEED IN HIS ALLEGATION

A Legal Practitioner or his Client who decides to disparage the conduct and integrity of a Judge on a page of bias accusations must be sure of his facts and must not be seen to be acting on a frolic or mere conjecture. Such an accuser should not hide under the figment of his own imagination as the Appellant has done here. The onus therefore lies on a party or his Learned Counsel who makes allegation of bias or likelihood of it against a Trial Judge to prove it.
See: (1) RAFIU WOMILOJU & ORS. VS. MR. FATAI
OGISANYIN ANIBIRE & ORS. (2010) 7 SCM 217 at 228H to 229 A – D per I. T. MUHAMMAD, JSC who said:
“Bias’, generally, is that instinct which causes the mind to incline toward a particular object or course. When a Judge appears to give more favour on consideration to one of the parties before him, either in his utterances, attention or actions, which is capable of perverting the cause of Justice, or where fair hearing cannot be said to take place, all in favour of the party he supports covertly or overtly, then an allegation of bias against him can be grounded. That of course is a Judicial bias. But where a trial has been conducted in which the authority of the Court has fairly been exercised in the conception of the process of law, then there is said to be a fair hearing. This contemplates allowing the parties equal opportunity to present evidence; to cross-examine witnesses and for the trial court to make findings which are supported by evidence. See: Omoniyi V. General Schools Board, Akure & Ors. (1988) 4 NWLR (Pt. 89) 449 at page 463; Elike V. Nwakwoale & Ors. (1984) 12 SC 301 at 341; Ariori V. Elemo (1983) 1 SC 13 at 81; Whyte V. Jack (1996) 2 NWLR (Pt. 431) 407 at 443.
For an allegation of Judicial bias against the person of a Judge to succeed, the accuser must establish his allegation on some extra judicial factors/reasons such as where such factors or reasons are absent such ‘perceived’ judicial bias is insufficient to justify disqualifying a Judge from participating in a case which is properly brought before him for adjudication. The allegation cannot be founded on mere conjecture or hearsay.”
(2) SUNKANMI ADEBESIN VS. THE STATE (2011) 9 NWLR (PART 1413) 609 at 634 H to 635
A – D per NGWUTA JSC who held:
“An established case or bias or likelihood or bias against a Court or tribunal is a factor vitiating the proceedings. If an allegation of bias is made against a Judge and the circumstances are such that right-minded members of the public would think there is substance in the allegation, the Judge should rescue himself from further proceedings in the matter. See Onigbede V. Balogun (2002) FWLR (Pt. 99) 1062 ratio 6; (2002) 6 NWLR (Pt. 762) 1.
If actual bias is proved, as the appellant purports to do, the proceeding is flawed for contravention of section 36 of the Constitution (supra) providing for right to fair hearing. In the matter at hand, there is no allegation of likelihood of bias which can be dealt with to save the proceedings. It is allegation of actual bias, which, as I said earlier, is a vitiating factor if established in any proceedings. per. PETER OLABISI IGE, J.C.A.

JUSTICES

RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

Between

EZE VINCENT LOUIS OKORO Appellant(s)

AND

1. SAMUEL ONYEBUENYI
2. CHAIRMAN, CARETAKER COMMITTEE NGOR-OKPALA L.G.A.
3. NZE MARTIN NWOKO
4. NZE FELIX NWAMGBE
5. HYACINTH NWAMADI
6. NATHANIEL AGOMUO
7. ULOKANJO NWAIMO
8. SAMUEL OKOROAFOR Respondent(s)

RATIO DECIDENDI

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This is an Interlocutory appeal against the decision of Imo State High Court contained in the Ruling of Honourable Justice C. NWOSU IHEME (as she then was) delivered on 30th day of July, 2002 closing or foreclosing the Appellant’s case in consolidated Suits How/230/94 and How/360/94 in the said Court for unexplained absence of the Appellant and his Learned Counsel in Court to continue his evidence under cross examination in his own Suit No.HOW/360/94.

The Appellant had instituted the action against the Respondents on 24th day of August 1994 Claiming to be the recognized EZE OF EZIAMA AUTONOMOUS COMMUNITY since 30th March, 1992.
The trial of the action commenced before Hon. Justice Chioma Nwosu – Iheme on 12th day of March 2002 when the Appellant as Plaintiff opened his case. After the Examination – in – Chief of the Appellant the Learned Counsel to the Respondents began his Cross examination of the Appellant but did not go far before the matter was by agreement of Counsel adjourned till 17/4/2002. In the Course of the said Cross Examination on 17/4/2002 the following emanated under cross examination viz:

“It is not true that my presentation was in secret. It is true that I presented myself as a graduate. I am a graduate. I am a graduate of University of Ife now Obafemi Awolowo University Ihe-Ife, and also Kensington University in the United States.

I have a Bachelor’s Degree in Law from Kensington University California, U.S.A. in Glendale to be precise. At University of Ife I obtained a Post Graduate Degree in Administration and Management. I also have a Juris Doctor Degree. The full name is Juris, it has no other meaning. I sat for the exams, and I was issued with the Certificates including the Juris Doctor Degree.

It is not true that I have never studied in an American University. It is not true that I do not have a simple document in support of my claims. I have documents to show for these. I can produce these documents at the next sitting of the Court.
Counsel now applies to continue his cross-examination when P.W.1 has produced these documents.
Counsel for the defence says that it was pleaded that the witness presents himself as having degrees he does not have and that these questions were put to prove that he is impersonating.
Counsel for the Plaintiff says that the minimum qualification is School Certificate, and so the issue of his producing his certificates is not necessary.

COURT:-
Since the defence pleaded the issue of P.W.1 presenting himself as having what he does not have, and since he has on his own admitted in Court that he possesses the above qualification, I have no justification whatsoever to refuse the application by Counsel for the defence that the certificates admitted by P.W.1. that he posses be brought in Court.

This case now stands adjournment to the 10/6/2002 for continuation of the Cross-examination. of P.W.1.
SGD.
CHIOMA NWOSU IHEME (MRS)
JUDGE
17/4/2002.”

The consolidated matter eventually came up for continuation of hearing on the 17th day of July, 2002 and the record of the Court reads:

“Parties are present, except the 2nd, 5th and 8th Defendants.
Chief K. K. Ogba for the Defendant says Counsel for the Plaintiff wrote for a stand down.
That the day is far spent, and he wouldn’t want to embarrass his learned brother by saying he is absent because this case was adjourned for the Plaintiff to produce certain documents (Certificates) which he claims he has, but which they know he does not possess. He then suggests 30/7/02. Court to Court Registrar:- Interpret to the Plaintiff.
COURT:-
This case stands adjourned to 30/7/02 for continuation.
SGD.
CHIOMA NWOSU-IHEME (MRS)
JUDGE
17/7/02”

Now when the matter came up on 30th day of July, 2002 the Appellant and his Learned Counsel were not in Court. The Learned Counsel to the 1st, 3rd – 8th Respondents then moved the Court for the Closure of the Appellant’s case to enable the Defence opened their defence. The Court there and then ruled thus:

“I have listened to the Learned Counsel for defence. I have also referred to the record of this Court on the 17/7/02. The attitude of the Plaintiff and his Counsel are to say the least unworthy. I therefore have no justification in law or in fact to refuse this application. Accordingly the application is granted, and the defence may now open its case”

DW1 then started his oral testimony and got to a point where the Learned Counsel to the Defence applied for an adjournment till the next day and the case was accordingly adjourned till 31-7-02 for continuation of defence.
On 31st day of July, 2002 both the Appellant and his Learned Counsel were in Court. The Learned Counsel to the Appellant reminded the Court that the last day the case was adjourned for continuation of the evidence of P.W.1 and applied he be allowed to continue. The Learned Counsel to Defence objected relying on the proceedings of 17/7/2002 adjourning the matter in open Court 30/7/2002 but the Counsel to the Appellant insisted that the Case was adjourned till 31/7/2002 instead of 30/7/2002 insisted upon by the defence.

The Learned trial Judge agreed with the Learned Counsel to the Defence and said:

“COURT:-

I have referred to the record of proceedings on the 17/7/02. It is clear and unambiguous that the case was adjourned at the instance of the Plaintiff’s Counsel and the date of adjournment communicated to the Plaintiff in both Igbo and English Language. It is very clear on the records of this Court that this matter came up on the 30/7/02, and on the application by the defence to continue today the 31/7/02 this case was then adjourned to today 31/7/02.

It is therefore humanly impossible that on the 17/7/02 when this matter came up, that the Plaintiff knew it would be adjourned from 30/7/02 to 31/7/02 as to inform his Counsel that the case was adjourned to 31/7/02.
Having considered all the facts placed before me before granting the application by the defence to be allowed to open their defence, nothing has happened to warrant or justify my departing from that or rescind that order, and overrule myself. There is indeed no cogent or concrete reason to do so. Considering the fact that neither the Plaintiff nor his Counsel was in Court, and did not bother to write to the Court. Since adjournment is at the discretion of the Court, I am not prepared to exercise it in favour of a non challant Counsel and the Plaintiff. This application lack merit, and so the order of the Court allowing the defence to open still stands.
Counsel for the Plaintiff then applies to withdraw from the matter. He says his Client could look for another Counsel if he wants to.
COURT:-
Application Granted.
COURT TO PLAINTIFF:-
Since your Counsel says he is not prepared to appear for you any longer, are you ready to go on without a Counsel or are you prepared to look for another lawyer?

PLAINTIFF TO COURT:-
I am not prepared to go on without a Counsel, I want the Court to give me just two weeks within which time I would definitely get another lawyer.

COURT:-
Application by the Plaintiff granted.
Counsel for the defence now applies for a date. He suggests the 25/11/02 for continuation of defence.
COURT:-25/11/02 for continuation of defence.
SGD.
CHIOMA NWOSU – IHEME (MRS)
JUDGE
31/7/02”
(See pages 26-28 of the record).

Aggrieved by the said Ruling the appellant appealed to this Court vide Notice and Grounds of Appeal dated 8th day of August, 2002 and filed on the same date containing two grounds which are hereunder reproduced with their particulars as follows:-

GROUNDS OF APPEAL
GROUND 1 – ERROR-IN-LAW:

The Learned Trial Judge erred in law when she foreclosed the Plaintiff’s/Appellant’s case on 30/7/2002 and ordered that the Defendants/Respondents should commence their defence.

PARTICULARS OF ERROR
(i) The Order of the Learned Trial Judge foreclosing the
Plaintiff’s/Appellant’s case and allowing the Defendants/Respondents to open their defence on 30/7/2002 was made in breach of the Plaintiff’s/Appellant’s constitutional right to a fair hearing.

(ii) The Consolidated Suits No. HOW/360 & 230/94 were fixed for 31/7/2002 and not on 30/7/202 when the Plaintiff/Appellant’s case was foreclosed and defence started.

(iii) The Plaintiff/Appellant was still being cross-examined as P.W.1 and has more than three witnesses to call thereafter.

(iv) The Learned Trial Judge did not issue any Hearing Notice to the Plaintiff/Appellant before foreclosing his case and ordering the defence to start on 30/7/2002.

(v) Apart from 30/7/2002 when the case was fixed in error, the Plaintiff/Appellant has never absented himself from Court.

GROUND 2 – BIAS
The Learned Trial Judge has been unduly biased against the Plaintiff/Appellant since the commencement of this Suit.

PARTICULARS OF BIAS
(i) The Learned Trial Judge has displayed undue hostility, bias and use of intemperate language against the Plaintiff/Appellant and his Counsel in the proceedings.

(ii) The Learned Trial Judge made an order commanding the Plaintiff/Appellant to produce to the Court all his qualifying Certificates even when the Defendants/Respondents did not join issue with him in their pleadings on the Plaintiff/Appellant’s Certificates.

(iii) Contrary to the states of pleadings filed by the parties and the fact that the Defendants/Respondents’ Suit No. HOW/230/94 is first in time, yet, the Court compelled the Plaintiff/Appellant to be the Plaintiff in the consolidated suits and to commence his case first instead of the Defendants/Respondents.

(iv) The Trial Judge has been intimidating both the Plaintiff/Appellant and his Counsel in these proceedings; hence the Plaintiff/Appellant is not likely to get an even-handed justice in the matter in the end.’

The Appellant filed his Brief of Argument on 20th day of March, 2003. It is also dated 20th March, 2003. The 1st & 3rd to 8th Respondents filed their Brief of Argument dated 2nd day of July, 2007 on the same date. The said Respondent’s Brief of Argument was deemed properly filed on 31st day of October, 2007.
The 2nd Respondent did not file any Brief of Argument. The application of the Appellant dated and filed the 9th day of November, 2007 seeking for the order of this Court to hear this appeal on the Appellant’s Brief of Argument and 1st, 3rd – 8th Respondents Brief of Argument in default or failure of 2nd Respondent to file Brief of Argument was granted. This appeal was called up for hearing on 13th day of October, 2014.

The parties and their Learned Counsel were absent. There is Bailiff Report that all the parties including the 2nd Respondent had Notice of the hearing of this appeal fixed for the 13th day of October, 2014.
This Court then invoked its powers pursuant to ORDER 18 RULE 9(4) of the Court of Appeal Rules 2011 which provides:

“18(9)94) when an appeal is called and the parties have been duly served with the notice of hearing, but if any party or any Legal Practitioner appearing for him does not appear to present oral argument even though briefs have been filed by all the parties concerned in the appeal, the appeal will be treated as having been duly argued”

That being the case this Court utilized its powers under the Rule just reproduced in deeming the appeal as having been argued in compliance with the Rules and position of the Law. See EBENEZER NWOKORO ORS. VS. TRIUS ONUMA & ORS. (1990) NWLR (PART 136) 22 at per KARIBI – WHYTE JSC who said:
“A brief of argument is prima facie exhaustive of the arguments intended to be presented. Hence no oral argument is allowed except by leave of the Court in support of any argument not raised in the brief or on behalf of any party in respect of whom no brief has been filed. Where parties who have filed briefs of argument are absent at the hearing, the appeal will be treated as argued on the briefs filed. This is also the position where only one of the parties had filed his brief. Thus the obligation to hear the other side i.e. audi alteram partem is observed by the filing of briefs which is taken to represent the case of the party in the Litigation.”
See also the Judgment of this Court in the case of A. D. C. LIMITED VS. MANNESMANN – ANLAGENDAU AG & ANOR. (1994) 3 NWLR (PART. 334) per SULU – GAMBARI, JCA now his Eminence, EMIR of ILORIN.

The Appellant distilled two issues from the two grounds of appeal for determination of the appeal namely:-

“(a) Whether the order of the Learned Trial Judge made on 30/7/2002, foreclosing the Plaintiff/Appellant’s case at the stage the Appellant was still being cross – examined as P.W.1 and refusing him opportunity to call this witnessed (sic) was not made in breach of the Appellant’s Constitutional right to a fair hearing.

(b) Whether the Trial Judge was not biased against the Plaintiff/Appellant in the way and manner the case was handled up to the time the Court foreclosed the Appellant’s Case.”

On their part the 1st, 3rd – 8th Respondents formulated three issues for determination as follows:-

“(1) Whether the Plaintiff/Appellant can be believed when he stated that on 17/7/2002 the Clerk of Court announced in Open Court in the Lower Court that this Suit had been adjourned to 31/7/2002 for further hearing?

And, if he is not to be believed, whether he was denied a fair hearing on 30/7/2002 or 31/7/2002.

(2) Whether the Trial Judge was biased against the Plaintiff/Appellant.

(3) Whether the inconsistency between the two reasons given by the Plaintiff/Appellant for his failure to be in the Trial Court with his Counsel on 30/7/2002 did not prove that his absence with his Lawyer was deliberate.”

The Appellant in his Appellant’s Reply Brief dated 9th day of November, 2007 and filed on the same date frowned on the issues frame for determination by the Respondents. Firstly that the issues did not emanate from the two grounds of appeal filed by the Appellant. Secondly that the Respondent did not file cross appeal or Respondent Notice and thirdly that one cannot have three issues from two grounds of appeal. That it is a Legal impossibility. He sought reliance in the following cases viz:

U.T.B. (NIG.) Ltd. Vs. Ajagbule (2006) 2 NWLR (Pt 965) 447 at 472 B – E.
2. Okolo V. U. B. N. Ltd. (2004) 3 NWLR (Pt. 859) 87 at 111 D – E.
3. Hussain V. Ogbuokiri (2004) 7 NWLR (Pt. 873) 524 at 540 F – G.
4. MOBIL PRODUCTION LTD. VS. Monopo (2002) 3 NWLR (PART 3) 48 at 76 – 77 R – C.
5. NITEL V. UGBE (2002) 3 NWLR (PT. 753) 186 at 199 D – E, 200 B -C and 6. OGUNBIYI VS. ISHOLA (1996) 6 NWLR (Pt. 452) 12 at 20 A – B.

I hereby strike out issues one and three contained in the three issues formulated for determination of this appeal by the Respondents. This appeal will be decided on the issues formulated by the Appellant.

ISSUE 1
WHETHER THE ORDER OF THE LEARNED TRIAL JUDGE MADE ON 30/7/2002, FORECLOSING THE PLAINTIFF/APPELLANT’S case at the stage the Appellant was still being cross-examined as P.W.1 AND REFUSING HIM OPPORTUNITY TO CALL HIS WITNESSES WAS NOT MADE IN BREACH OF APPEALLANT’S CONSTITUTIONAL RIGHT TO FAIR HEARING.

The Learned Counsel to the Appellant Chief T. C. Nwachi submitted that by foreclosing the case of the Plaintiff/Appellant in what he described as “this very crucial Chieftaincy/Ezeship dispute” on 30/7/2002 when the Appellant was still being cross examined as P.W.1. by Learned Counsel to the Respondents and allowing the defence to open on that same day, which they did, the Learned Trial Judge was in utter breach of the Appellant’s Constitutionally guaranteed right to fair hearing.
That it also amounted to denying the Appellant the opportunity to call his witnesses in proof of his case. He relied on the following viz:
(1) S. 36 of the 1999 Constitution.
(2) MOHAMMED VS. KANO NATIVE AUTHORITY (1968) 1 ALL NLR 424.
(3) SALEH VS. MUNGONO (2003) 1 NWLR (PT. 801) 221 at 246 – 249.
(4) DEDUWA VS. OKORODUDU (1976) 9 – 10 SC 329.
(5) AFRIBANK NIG. PLC. VS. OSISANYA (2000) 1 NWLR (PART 642) 598 at 613 – 614 E – A
(6) FEDERAL CIVIL SERVICE COMMISSION VS. LAOYE (1989) 2 NWLR (PT. 106) 652.

That from 12/3/2002 when the Appellant opened his case as P. W. 1 till 30/7/2002 when his case was foreclosed, the Appellant did not absent himself from Court. That his Counsel was also regular in Court except for 17/7/2002 when he wrote for adjournment on medical ground because he had injection abscess. That all adjournments from 12/3/2002 when the Appellant started and concluded his evidence-in-Chief were at the instance of the Respondents who according to Learned Appellant Counsel kept applying for adjournment for further cross examination of P.W.1 and for Appellant to produce certain documents which neither of the parties pleaded nor joined issues on. That inspite of this the Learned Trial Judge kept obliging Respondents those adjournments. That it was only on 17-7-2002 when Learned Counsel for the Appellant wrote for adjournment on health ground that the Appellant took a date personally in the absence of his Lawyer that mix-up arose as to the next adjourned date whether 30/7/2002 or 31/7/2002.

That by Order 48 Rule 4 of the Imo State High Court Rules 1988 31/7/2002 was the last sitting day before annual vacation of the Court. That going by the known Rules and Law of fair hearing and natural Justice, the Learned Trial Judge ought to have issued a hearing notice to the Appellant and his Counsel and probably award cost against the Appellant, if need be, and adjourned possibly to the next session since the Court was at brink of vacation. That this would have enabled the Respondents conclude their cross-examination of Appellant as P. W. 1 and enable Appellant to call his other witnesses. That that was the only fair manner the Judge would have dealt with the matter by being open minded. That the Appellant had always attended the Court. That it was unfortunate the Trial Judge hastily foreclosed Appellants Case on 30/7/2002.
That all explanations to the Court on the mix-up in dates between 30/7/2002 were rebuffed even when Learned Counsel showed the Honourable Court his Diary for 30/7/2002. That the Court simply branded the Appellant and his Counsel “non-chalant” and continued with the defence on 31/7/2002.
That the Trial Court did not issue Hearing Notice even on 30/7/202 when the matter was adjourned till 31/7/2002. That no Hearing Notice was issued on Appellant and his Counsel who simply came to Court on 31/7/2002 based on the adjourned date announced by the Clerk of Court on 17/7/2002. He relied on the case of UDE VS. AG. RIVERS STATE (2002) 4 NWLR (PART 756) 66 at 77 C – D.
That the Appellant and his Counsel were not guilty of any delay. He finally submitted on issue one that no reasonable man or impartial observer watching the proceedings will conclude that the Trial Judge was fair to the Appellant. He urged the Court to declare the entire proceedings a nullity in Law.
Replying to the Appellants submissions on issue one the Learned Counsel to the Respondents stated that the reason given by Appellant for his absence and that of his Counsel before the Lower Court on 30/7/2002 when the defendants were allowed to call their first witness was that the Clerk of Court had announced in Open Court on 17/7/2002 that the Suit had been adjourned to 31/7/2002. Respondents relied on paragraph 3. 5 page 3 of the Appellant’s Brief under the heading “Statement of Facts”. That that reason cannot be true because according to Respondents Learned Counsel Chief K. K. Ogba, the record of proceedings for 17/7/2002 shows that the Clerk of Court or Registrar made only one statement in Open Court on 17/7/2002 and that was interpretation to the Appellant that the case has been adjourned to 30/7/2002 to enable Appellant produce his degree certificates. That there is nothing in the record of the Court for 17/7/2002 showing any announcement by Clerk of court of any hearing date. That hearing date recorded was announced in Open Court by the Learned Trial Judge on 17/7/2002. That it was not true to say that the Clerk of Court announced 31/7/2002 as next date of adjournment on 17/7/2002. That the appellant never told anyone that he is hard of hearing. That Appellant heard the defence clearly when he gave his testimony in English Language.
That the question to ask is why did the Appellant and his Counsel absented themselves from Court on 30/7/2002. That it was because the Appellant had no degree Certificates he talked about in his evidence and ran the risk of being committed for contempt. He relied on the cases of EZEKIEL HART VS. EZEKIEL HART (1990) 1 NWLR (Pt. 126) 276 at 286 and FAWEHINMI VS. STATE (1990) 5 NWLR (PART 148) 42 at 76.
He relied on Order 37 Rule 8 of Imo State High Court (Civil Procedure) Rules (1988) to submit that the Suit of the Defendant in the cross action stands as a Counter Claim and that since the Appellant was in Court when the matter was adjourned till 30/7/2002 and heard his Counsel failed to show up without any explanation or writing to the Court to explain their absence the Learned Trial Judge was perfectly right in allowing the defendants to proceed with their defence in accordance with Order 31 Rule 8 of Imo State High Court (Civil Procedure) Rules 1988.
On the Appellant’s submission that his client was entitled to a Hearing Notice when on 30/7/2002 the case was adjourned to 31/7/2002, but the said Order did not provide for such Notice that is Order 37 Rule 8 of the Imo State High Court. The Respondents’ Learned Counsel Chief K.K. Ogba submitted that the case of UDE V. A.G. RIVERS STATE relied upon by the Appellant does not apply to this appeal. That in the present case it is clear from the record of proceedings for 17/7/2002 that the Appellant was in Court when the Learned Trial Judge adjourned the case to 30/7/2002 and somehow the Appellant and his Counsel were in Court on 31/7/2002.
In reply to the Respondents’ Brief the Appellant filed REPLY TO THE 1ST, 3RD – 8TH RESPONDENTS BRIEF wherein the Learned Counsel to the Appellant contended that even if the Suit was duly adjourned to 30/7/2002 instead of 31/7/2002 as stated by the Appellant, that justice of the matter in the circumstance does not lie in foreclosing the entire case of the Plaintiff of the opportunity to call his witnesses. Appellant urges this Court to set aside the Order of the Lower Court and remit this Suit to another Court of Imo State for retrial.
The right to natural justice or fair hearing before an impartial arbiter for the determination of his or her rights and obligations is the mighty confidence a litigant has in approaching the citadel of justice, the Court, to ventilate his or right against his neighbour or government and authorities. Equal opportunity must be given by a Court seised of a matter to all sides to the dispute to present their case before the Court. The Judge Presiding over the Court must be ready and prepared at all times to enforce and ensure the observance of the principles of fair hearing as embodied or enshrined in section 36(1) of the Constitution which provides that:

His Lordship continued on page 423 C-D as follows:

“It is indeed trite law that a party who will be affected by the result of a judicial enquiry must be given opportunity of being heard, otherwise the action taken following the inquiry will be unconstitutional and illegal.”

On page 427B-C AYOOLA J.S.C, put the principle succinctly thus:-
“That a party should be given an opportunity of being heard before a decision is made against him is a fundamental principle of justice that predated our constitution. A person given such an opportunity cannot complain if he did not avail himself of such opportunity.”
(2) NICHOLAS CHUKWUJEKWU UKACHUKWU VS PEOPLES DEMOCRATIC PARTY & ORS (2014) 2 SCM 202 at 223 F-D to 224 A-H where K.MO. kEKERE-EKUN, JSC said:-

“The fundamental issue to be considered in the resolution of this issue is what is meant by fair hearing? The constitutionality of the right to fair hearing is not in doubt. Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides thus:
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.”

It is the case of the Appellant that the further hearing of his Suit was fixed for 31st July 2002 and NOT 30th day of July, 2002 insisted upon by the Respondents. The evidence which the appellant wants this court to believe are contained in paragraphs 3.3 – 3.6 of the Appellant’s Brief of Argument under narration of facts thus:

3.3 On 17/7/2002 the Appellant was in court but counsel for the Appellant wrote for adjournment on ground of ill-health because I had an injection abscess and went for dressing of the wound and treatment. I personally showed my learned friend for the Respondents the swollen abscess when I came to the court premises to submit the letter for adjournment on my way to hospital. Later in the day, on 17/7/2002, the Appellant came to my chambers and gave me 31/7/2002 as the next adjourned date for the suits and I entered same in my court diary.

3.4 On 30/7/2002, the Respondents and their counsel went to court, called up the case and applied to the court to foreclose the case of the Plaintiff/Appellant and allow them to open their defence. The court granted the application of the Respondents, foreclosed the Appellant’s case at this stage when PW1 was still being cross-examined by counsel for the respondents and allowed the respondents to open their defence on this 30/7/2002. No Hearing notice was issued and served on the Appellant or his counsel before the above acts were done by the trial Judge. The Defence started on 30/7/2002 with the 1st Respondent testifying as DW1. See pages 23-25 of Records.

3.5 On 31/7/2002, which was the date the Appellant said the
clerk of court announced in open court on 17/7/200 and which was the date the Appellant gave to me in chambers, both parties and their counsel were present in court and the Appellant was ready to entertain further cross-examination by the defence counsel as PW1.

3.6 Surprisingly, counsel for the Appellant was confronted with the proceedings of the court on 30/7/2002 and informed by the Trial Judge in very harsh language that the appellant’s case was foreclosed on 30/7/2002 when the defence opened. Counsel for the Appellant applied that the order of court be rescinded in view of the mix-up in dates and the Plaintiff/Appellant be allowed to be cross-examined further as PW1 and field his witnesses but the trial Judge rejected the application and allowed the defence to continue. See pages 26-28 of Records”
I have scrutinized the record of proceedings particularly pages 26-28 thereof and they do not at all support the statement of facts narrated by the Learned counsel to the Appellant which facts the Appellant played up all through his argument on issue one.
I believe that in order to clear all iota of doubt concerning the truth of the matter it is very necessary to reproduce pages 26-28 of the record of proceedings of what transpired on 31-7-2002 in the Lower Court viz:

“HOLDEN AT OWERRI
BEFORE HIS LORDSHIP,:
HON. JUSTICE CHIOMA NWOSU-IHEME (MRS) – JUDGE
ON WEDNESDAY, THE 31ST DAY OF JULY, 2002.

SUIT NO: HOW/360/94
AND
SUIT NO. HOW/230/94:

BETWEEN:

EZE VINCENT LOUIS OKORO….PLAINTIFF
AND
SAMUEL ONYEBUENYI & 7 ORS…DEFENDANTS

Parties are present, Except the 2nd & 4th Defendants
Chief K.K. Ogbe for the Defendants, with him is O. Ogwumike.
Chief I.C. Nwachi, with him J. I. Adoga for the Plaintiff.
Counsel for the Plaintiff says that on the last day the case was adjourned for continuation of the evidence of P.W.1, he applies that he be allowed to continue.
Counsel for the defence vehemently opposes this application which he described as being brought in bad faith, and to deliberately frustrate this matter going on as has been done in the past.
He referred the court to its records 17/7/02 inclusive, in this consolidated matter. That this 1994 matter had been delayed as a result of applications for adjournment and other pranks and outright mischief by the plaintiff. That this matter was adjourned clearly, and in open court to the 30/7/02 to the hearing of the entire court. That even though the Plaintiff is a school Teacher, the court asked the Clerk of Court to interpret and explain to the Plaintiff in Igbo Language. Therefore, even if he did not understand the language of the Court in English Language, he understood the Igbo version. He described this application as a further attempt to frustrate the progress of this case. He urged the Court to reject the application as it is most mischievously brought.
Counsel for the Plaintiff says his Client told him the case was adjourned to 31/7/02 and that was why he was not in court on 30/7/02.

COURT:-
I have referred to the record of proceedings on the 17/7/02. It is clear and unambiguous that the case was adjourned at the instance of the Plaintiff’s Counsel and the date of adjournment communicated to the Plaintiff in both Igbo and English Languages. It is very clear on the records of this Court that this matter came up on the 30/7/02, and on the application by the defence to continue today the 31/702 this case was then adjourned to today 31/7/02.
It is therefore humanly impossible that on the 17/7/02 when this matter came up, that the Plaintiff knew it would be adjourned from 30/7/02 to 31/7/02 to inform his Counsel that the case was adjourned to 31/7/02.
Having considered all the facts placed before me before granting the application by the defence to be allowed to open their defence, nothing has happened to warrant or justify my departing from that or rescind that order, and overrule myself. There is indeed no cogent or concrete reason to do so. Considering the fact that neither the Plaintiff nor his Counsel was in court, and did not bother to write to the Court. Since adjournment is at the discretion of the court, I am not prepared to exercise it in favour of a non challant Counsel and the Plaintiff. This application lack merit, and so the order of the court allowing the defence to open still stands.
Counsel for the Plaintiff then applies to withdraw from the matter. He says his Client could look for another counsel if he wants to.

COURT:-
Application Granted.
COURT TO PLAINTIFF:-
Since your Counsel says he is not prepared to appear for you any longer, are you ready to go on without Counsel or are you prepared to look for another lawyer?
COURT:-

Application by the Plaintiff granted.
Counsel for the defence now applies for a date. He suggests the 25/11/02 for continuation of defence
Application Granted.
PLAINTIFF TO COURT:-
I am not prepared to go on without a Counsel; I want the Court to give me just two weeks within which time I would definitely get another lawyer.
COURT:-
Application by the Plaintiff granted.
Counsel for the defence now applies for a date. He suggests the 25/11/02 for continuation of defence
COURT:-
25/11/02 for continuation of defence.
SGD.
CHIOMA NWOSU-IHEME (MRS)
JUDGE
31/7/02.”

From the above quoted record of proceeding of 31/7/02 it is glaring and demonstrably clear that Appellant Learned Counsel misrepresented what actually took place on 31st day of July, 2002. He also unduly exaggerated the proceedings of that day in order to gain undue advantage and sympathy of this Court. Contrary to the embellishment of the course of events in the matter at the Lower Court, on 17th day of July, 2002, and 31st July 2002, the record of proceedings show abundantly that the further hearing of the case was adjourned on the 17th day of July, 2002 in the presence of the Appellant to 30/7/2002, his Learned Counsel having written to the Court. The mischievous adventure of the Appellant to ingratiates his position and denigrate the court is belied by the court’s proceedings.
The whole proceedings for the 17th of July 2002 read:

“HOLDEN AT OWERRI
BEFORE HIS LORDSHIP, HON. JUSTICE CHIOMA NWOSU-IHEME (MRS) – JUDGE
ON WEDNESDAY THE 17TH DAY OF JULY, 2002.
SUIT NO.: HOW/360/94:
AND
SUIT NO.: HOW/230/94:

BETWEEN:
EZE VINCENT LOUIS OKORO====PLAINTIFF
AND
SAMUEL ONYEBUENYI & 7 ORS.===DEFENDANTS

Parties are present, except the 2nd, 5th and 8th Defendants.
Chief K. K. Ogba for the Defendant says Counsel for the Plaintiff wrote for a stand down.
That the day is far spent, and he wouldn’t want to embarrass his learned brother by saying he is absent because this case was adjourned for the Plaintiff to produce certain documents (Certificates) which he claims he has, but which they know he does not possess. He then suggests 30/7/02. Court to Court Registrar:- Interpret to the Plaintiff.
COURT:-This case stands adjourned to 30/7/02 for continuation.
SGD.
CHIOMA NWOSU-IHEME (MRS)
JUDGE
17/7/02”

What is discernible from it is that the further hearing of the case was fixed in the presence of the Appellant and the Trial Judge also directed the Court Registrar to interpret to the Appellant and the case was accordingly adjourned till 30/7/2002.
This record has not in any way been faulted by the Appellant and his Learned Counsel and there is nothing even in form of Affidavit evidence deposed to by the Appellant or his Learned Counsel to fault or dispute the record of proceedings of the Lower Court. A close perusal of the record of appeal and the decision of Lower Court appealed against do not reveal or show any of the vile allegations being peddled by the Appellant in his Brief of Argument. It must be stressed or emphasized that the Law is firmly settled that an Appellate Court as well as the parties are bound by the record of appeal before the Court of Appeal and cannot and will not be permitted to say or do anything outside the record of appeal.
See:
(1) THE STATE VS. BABANGIDA JOHN (2013) 12 NWLR (PART 1368) 337 at 361 G per RHODES -VIVOUR JSC who said:
“Before I conclude I must observe that the record of appeal was badly prepared. A record of appeal is a very important document that the Appeal Court relied on when hearing an appeal. The Courts are bound by the record of appeal so all proceedings relevant for the appeal as they occurred must be reproduced in the record of appeal.”
2. OTUNBA ADESESAN OGUNTAYO CORADEREMO OF IJEBU – IFE) VS. PRINCE FATAI ADELAJA & ORS. (2009) 15 NWLR (PART 1163) 150 at 190 H – 191 A per OGBUAGU, JSC who said”
“It need be stressed that this is also settled that the Record of Proceedings bind both the parties, and the Court until the contrary is proved. See the case of Sommer Vs. Federal Housing Authority (1992) 1 NWLR (Pt. 219) 548; (1992) 1 SCNJ. 73. Therefore, an Appellate Court has no jurisdiction, to read into the record, what is not there and equally it has no jurisdiction to read out of the record what is there. An appellate Court must read Record in the exact content and interpret it.”
See also:
1. HON. ZAKAWANU I. GARUBA & ORS. VS. HON. EHI BRIGHT OMOKKODION & ORS. (2011) 7 S.C.M. 85 at 108 C – E per CHUKWUMA – ENEH JSC.
2. SUNKANMI ADEBESIN VS.THE STATE 2014 9 NWLR (PART 1413) 600 at 646 13 per OGUNBIYI JSC.

I am satisfied that the Appellant had notice of the hearing fixed for 30th day of July 2002 on 17-7-2002. Appellant was present in Court. There is nothing on the record to suggest that he did not hear the Judge fixed the case for 30th July, 2002 for continuation of hearing or that the Registrar of the Court did not translate the proceeding to him.
The Law is settled that where a party or Appellant is/was present in Court when his case is/was fixed for hearing and he fails to turn up on the hearing day so fixed, without any justifiable excuse with his Learned Counsel, the Court will not be blamed for proceeding in the absence of such a party in Litigation. Such a party cannot turn round to accuse the Trial Court of breaching his right to fair hearing under section 36(1) of 1999 Constitution as amended.
See:
(1) THE NIGERIAN NAVY & ORS. VS. NAVY CAPTAIN D. O.
LABINJO (2012) 7 SCM 138 at 156 D – I to 156 A – B per ADEKEYE, JSC.
(2)INOGHA MFA & ANOR. VS. MFA INONGHA (2014) 1 S.C.M. 100 at 119C – G per NGWUTA, JSC.
(3) S & D CONSTRUCTION COMPANY LIMITED VS. CHIEF BAYO AYOKU & ANOR. (2011) 8 SCM 174 at 186G – 187D where FABIYI, JSC, had this to say:
“It was canvassed on behalf of the appellant that hearing notice, was not issued in respect of the two dates fixed for trial. To my mind, the new stance equates to clinging to a straw. A party as herein, who already knows or is reasonably presumed to know of the date for which its case is scheduled for hearing does not require hearing notice to be served on it. See: Jonason Triangles Ltd. V. CM & P Ltd. (2000) 15 NWLR (PL 789) 176. I also wish to make it clear that there should be consistency in prosecuting a case at the trial court as well as on appeal. There should be no somersault; as herein. See: Ajide V. Kelani (1985) 3 NWLR (PL 12) 248.

I hereby resolve issue 1 in favour of the respondents and against the appellant. Issue 2, put briefly, is whether the justices of the Court below gave due consideration to the reasons proffered by the appellant for its absence in Court on the dates the matter was fixed for trial. The appellants, in the main, advanced two reasons for its absence. Firstly, it contended that parties were discussing prospect for settlement. Secondly, the appellant claimed that its counsel was sick.
On prospect for settlement, the Court below at pages 236-237 of the record held as follows:-

“I do not think that there is any justification for a plaintiff to stay away from Court on a date fixed for hearing of his case which was six years old in Court on the excuse that it hoped settlement might be reached. It is particularly instructive to bear in mind that the excuse was not that a settlement had been reached.”
In my view, the above stance of the Court below has no blemish. It sounds plausible, in the main. Even if there were discussions about settlement, that was no reason or justification for the plaintiff to stay away from the Court on a date the matter was fixed for hearing. In any event, the appellant tried to play a game of hide and seek.”

The Appellant is responsible for whatever mix-up (if any) there might be in failing to turn up in Court on 30th day of July, 2002 and the absence of his Counsel. He will sleep on his bed as he made it.
The Learned Trial Judge did not continue with the hearing of the defence on 31/7/2002 case contrary to the unfounded allegation of Appellant in paragraph 3.6 of the Appellant’s Brief of Argument. Page 28 of the record wherein the following emerges viz:

“Counsel for the Plaintiff then applies to withdraw from the matter. He says his Client could look for another Counsel if he wants to.

COURT
Application Granted.
COURT TO PLAINTIFF:-
Since your Counsel says he is not prepared to appear for you any longer, are you ready to go on without a Counsel or are you prepared to look for another Lawyer?
PLAINTIFF TO COURT:-
I am not prepared to go on without a Counsel, I want the Court to give me just two weeks within which time I would definitely get another Lawyer.
COURT:-
Application by the Plaintiff granted. Counsel for the defence now applies for a date. He suggests the 25/11/02 for continuation of defence.
COURT:-
25/11/02 for continuation of defence.
SGD.
CHIOMA NWOSU-IHEME (MRS)
JUDGE
31/7/02.”

Consequently issue 1 is hereby resolved against the Appellant in favour of 1st, 3rd – 8th Respondents.

ISSUE 2
WHETHER THE TRIAL JUDGE WAS NOT BIASED AGAINST THE PLAINTIFF/APPELLANT IN THE WAY AND MANNER THE CASE WAS HANDLED UP TO THE TIME THE COURT FORECLOSED THE APELLANT’S CASE (GROUND 2 OF THE GROUNDS OF APPEAL).

The Learned Counsel to the Appellant submitted that from the conduct and utterances of the Learned Trial Judge in the proceedings, she was already biased or likely to be biased against the Appellant at the conclusion of the trial.
That in spite of the fact that Respondents Suit No. HOW/230/94 was first in time to the Appellant’s Suit No. HOW/360/94 coupled with the fact that it was the Respondents who were challenging the Appellant’s presentation and recognition as unlawful, the Trial Judge placed onus of proof on the Appellant and asked him to start first as Plaintiff. He relied on page 13 of the records. That this was contrary to the state of pleading in the consolidated Suits. That the Trial Judge was displaying undue hostility to the Appellant throughout the proceedings. That the Trial Judge was using harsh and intemperate language against the Appellant and his Counsel and intimidating them in this case. That at a point the Lower Court branded the Appellant and his Counsel”Most unworthy” and that at another time called them a nonchalant Counsel and the Plaintiff” He relied on pages 24 and 27 of the record. That from the records there was no concrete basis. That with the impression the Trial Judge had of them Appellant will not be accorded an even handed Justice in the matter. That the foreclosure of the Appellant Suit implies in itself a prejudice towards Appellant and that the Trial Judge is likely to be biased against Appellant in subsequent proceedings. He cited and relied on the following cases:
(i) UDO V. C. S. N. C. (2001) 14 NWLR (PART 731) 116 at 150 G.
(ii) SALEH V. MONGUNO Supra Page 249 C – D and page 250 B – D. and
(iii) KENON VS. TEKAM (2001) 14 NWLR (Pt. 732) 12 at 36 – 37 D – A.
The Learned Counsel finally urged this Court to declare the entire proceedings a nullity and set it aside having according to him occasioned a serious miscarriage of Justice to the Appellant.
Responding to the allegation of bias against the Trial Judge the Respondents’ Learned Counsel Chief Ogba stated that the Learned Trial Judge was not referring to the personality of the Appellant but his conduct of the Suit he filed in Court. That the epithet was not unfair in that the Appellant was in Court when his matter was adjourned on 17/7/2002 to 30/7/2002. That that was the second occasion the absence of Appellant threatened to abort the proceedings. That all the criticisms against the Trial Judge were ridiculous as they are not supported by facts on record. That there is nothing to suggest that the Lower Court was biased against the Appellant.
This Court was urged to dismiss the Appeal.

I have examined page 13 of the record and there is nothing there in suggesting that it was the Trial Judge that consolidated the matters viz HOW/360/94 instituted by Appellant and HOW/230/94 instituted by the Respondents. What is discernible on page 13 of the record is that the Learned Counsel to the Plaintiffs now Respondents in Suit HOW/230/94 at the Lower Court informed that Court that the issue had been settled and that, that was why the Appellant showed interest in pursuing his own case. That parties were in Court on the understanding that the Appellant would proof his case. There is nothing on page 13 of the record showing any resentment as to the Order of trial or hearing in the consolidated Suits.
In any event the simple truth in law is that in a consolidated suits each action on retains its identity and Plaintiff in each action must prove his case independently of the other. Decision in one consolidated Suit is not ditto for the other case. There must be distinct judgment in each of or in respect of each of the cases in consolidation.
See: INEC VS. ADMIRAL MURTALA NYAKO & ORS. (2011) 12 NWLR (PART 1262) 439 at 489 H to 490 A – C where GARBA JCA said:
“Although there are no rules of Court which provide for consolidation of appeals, it is an established and accepted judicial practice to consolidate actions or as the case may be, appeals in which same issues are raised by parties that are substantially the same against one or same decision of a Lower Court for convenience and also save time in arguing them piecemeal or separately. For that reason, consolidated appeals though heard at the same time, would retain their distinct and separate identities for the purpose of determination and so the Law requires that there be separate pronouncement by the Court on each of them. Imadu V. Esurombi – Aro (2005) 14 NWLR (Pt.944) 142 at 175; Abana V. Obi (2004) 16 NWLR (Pt. 881) 319; Haruna V. Modibo (2004) 16 NWLR (Pt.900) 487).”

I have also perused the con in which the words “most unworthy” and “nonchalant” were used against the Appellant and his Counsel. I am of the solemn view that the use of those words were referable to the tardiness, conduct and attitude of the Appellant and his Counsel in the prosecution of the case and the fact that Appellant and his Counsel on the two occasions did not place any material before the Court to enable the Trial Court exercise its discretion to adjourn the case in favour of Appellant. All of these do not smack of any inkling of bias or to put it at the highest they do not constitute a slide into likelihood of bias by the Learned Trial Judge.
Issue two is equally resolved against the Appellant in favour of the 1st, 3rd – 8th Respondents.

I have come to the irresistible conclusion that this appeal is quite unmeritorious and the Appellant’s appeal is hereby dismissed in toto.
1st, 3rd – 8th Respondents are entitled to costs which I assess at N50,000.00 (Fifty Thousand Naira).

RAPHAEL CHIKWE AGBO, J.C.A.: I agree with my Lord Ige, JCA that this appeal is unmeritorious and should be dismissed and it is hereby dismissed. I abide the consequential orders made in the lead judgment.
I also take judicial notice of the fact that the trial judge Hon. Justice Chioma Nwosu Iheme was elevated and sworn in as a Justice of the Court of Appeal in January 2008. From that date the argument in this appeal became academic and a waste of judicial time as the hearing of the suit would commence de novo.

IGNATIUS IGWE AGUBE, J.C.A.: I had the advantage of reading in advance the judgment of my learned brother P. O. Ige, JCA and I agree totally with his reasoning and conclusion, that this Appeal is unmeritorious and should be dismissed.
My Lord has dealt with all the issues that have arisen in this Appeal and I could not have put it better. This Appeal is predicated on the refusal of the learned trial judge now of the Court of Appeal to accord the Appellant fair hearing but from the antecedents of the case as copiously highlighted in the lead judgment with which I concur, the learned trial judge did not create any hostile atmosphere for the learned counsel to the Appellant to prosecute his case.
He (the learned counsel) rather misrepresented the facts of the case as to what transpired on the diverse days he complained of his harassment and the use of uncomplimentary remarks against his person and professional calling. An appellant or counsel who had notice of the hearing date and was present in Court when his case was adjourned for the 30th July, 2002 on 17-7-2003 but they failed to turn up on that hearing date should not run round to blame the Court. See Newswatch Communications Ltd v. Atta (2006) 11 ALL NLR (Pt.1) 211 at 225, Inakoju v. Adeleke (2007) 4 NWLR (Pt.1025) 423 at 621 0622, Abubaka v. YarAdua (2008) 4 NWLR (Pt.1078) 467 Cit 511 Paras B – D and Oguntayo v. Adeleja. (2009) 15 NWLR (Pt.1163) 150 at 186 Paras E – G.
Upon all the facts of this case and authorities cited by parties and my noble brother, there is no doubt that the learned trial Judge did not exhibit any bias or likelihood of bias against the Appellant or Counsel. Rather the learned counsel for Appellant took undue liberties to malign the learned trial judge without any just cause as he has been unable from the Records to pin point out any breach of the rules against bias committed by the learned judge which he made so much heavy weather of.
If the learned counsel was tardy or indolent in the prosecution of his case particularly as recorded in page 13 of the Records, the learned trial judge was right to have used those words at least to ginger him up to be alive to his responsibilities.
I agree that the exercise of the learned trial judge’s discretion to refuse adjournment or by granting the Application for consolidation of the suits of the parties which emanated from the same facts and circumstances should not ordinarily attract the learned counsel for the Appellant’s ire against the learned trial Judge except also that the (the learned counsel) has some deep seated animosity against the trial judge, which he has not told this court.
It is for the above reasons and the fuller reasons advanced by learned and noble Lord that I also dismiss this Appeal in its entirety and award N50,000.00 costs against the Appellant.

Appearances

No Appearances.For Appellant

AND

For Respondent