In The Court of Appeal of Nigeria

On Tuesday, the 11th day of March, 2003




MAHMUD MOHAMMED   Justice of The Court of Appeal of Nigeria

IGNATIUS CHUKWUDI PATS ACHOLONU   Justice of The Court of Appeal of Nigeria

SULE AREMU OLAGUNJU   Justice of The Court of Appeal of Nigeria



  1. G.O.C. ONUEGBU Appellant(s)


(suing through her Attorney Mr. Gerald Okpala) Respondent(s)

MAHMUD MOHAMMED, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice of Anambra State sitting at Ogidi and delivered by Izuako J, on 3-7-2001. The respondent in this appeal was the plaintiff at the trial court and had instituted an action through her Attorney against the appellant who was the defendant in that court and claimed by paragraph 7 of her statement of claim the following reJiefs:-
“7, WHEREFORE the plaintiff claims from the defendants as follows:-
(1.) Possession of the said three (3) flats of three bed rooms and parlour and a warehouse and premises with the appurtenances situate at No, 2 Ezeigwe Street, Nkpor-Agu,
(2.) N33,000 being arrears of rent for the months of September, 1998 to February, 1999 at the rate of N5,500 per month made up as follows:- N1,500 per flat per month, N1,000 for the warehouse per month,
(3.) Mesne profits at the rate of N5,500 per month from March, 1999 until possession is delivered to the Plaintiff.”

After the exchange of pleadings between the parties the case came up for hearing before the trial court on 21-9-99 when the plaintiffs first witness testified. A total of 3 witnesses in all gave evidence in support of the case of the plaintiff who closed her case on 9-12-99 and the case was adjourned to 7-2-2000 for defence.
On the adjourned date, both parties were present and duly represented by counsel when the defendant opened his defence by testifying in chief. However, while being led in evidence by his learned counsel, the defendant ran into difficulties regarding the tendering of certain documents in evidence. Consequently an adjournment was granted to the defendant in order to put his house in order. The case was therefore adjourned to 6-4-2000 for hearing. On that date however, neither the defendant nor his learned counsel was in court. The trial court therefore adjourned the case to 1-6-2000 for further hearing and awarded N500.00 costs to the plaintiff who was duly represented by counsel on that date. For undisclosed reasons, the trial court did not sit on 1-6-2000 but the case came up before that court on 3-10-2000 when the defendant and his counsel were again absent while the plaintiff was duly represented by counsel. The case was again adjourned by the trial court to 8-11-2000 for defence. Meanwhile by a motion on notice dated 24-10-2000, and filed at the court below on 25- 10-2000, the defendant sought for an order for leave to amend the statement of defence marked Exhibit ‘A’ to the affidavit in support of the motion as duly filed and served. That motion was also fixed for hearing on 8-11-2000, the same date to which the case was earlier adjourned for defence.
Although both parties were in court on 8-11-2000 and both were duly represented by their learned counsel, for reasons which are not apparent on the face of the record, the learned trial judge did not hear the defendant’s motion to amend his statement of defence fixed for hearing that date, which was also a date earlier fixed for the continuation of the defence, but further adjourned the case again to 6-12-2000 for hearing. On that date despite the fact that both parties were duly represented by counsel, learned counsel to the defendant had told the court that he had filed a motion to amend the statement of defence and filed a counter claim, on his own application the matter was again adjourned to 16-1-2001 for hearing. Again the defendant’s motion to amend the statement of defence and file a counter claim and the substantive case were not heard on this date because the defendant who was in court in person had told the court that there were moves to settle the case out of court. On the confirmation of this move by the learned counsel to the plaintiff, the trial court adjourned the matter to 7-2-2001 for report of settlement.
However, on 7-2-2001, there was no report of settlement as learned counsel to the plaintiff had reported to the court that the defendant had refused settlement and had also refused to give up possession. Again in spite of the fact that both parties were duly represented by counsel on that date, the pending motion filed by the defendant was not moved and on the application of the defendant’s counsel the matter was again adjourned to (sic) 5-4-2000 for hearing. When the matter came up before the trial court on 5-4-2001 to which date the matter was actually adjourned, neither the defendant nor his counsel was in court. The learned trial judge instead of striking out the pending motion filed by the defendant for want of prosecution before proceeding with the substantive case, decided to ignore the motion and proceeded to close the case of the defendant and adjourned the case to 24-5-2001 for address by the plaintiffs counsel. Although on that date a counsel one Obi-Okoye appeared for the defendant/applicant in the substantive case and the pending motion, yet the learned trial judge decided to ignore the pending motion and proceeded to hear the address by the plaintiff’s counsel in the substantive case. At the end of this address, the learned trial judge asked the learned counsel to the defendant to address the court but he declined to do so, telling the court that he was in court to move the defendant’s motion for amendment. There and then, the learned trial judge, fully aware of the pending motion filed by the defendant for leave to amend his statement of defence and file a counter claim and adjourned the case to 3-7-2001 for judgment.
Meanwhile the learned counsel to the defendant had filed a motion on notice dated 5-6-2001 on the same date at the lower court praying for an order arresting the judgment reserved and an order granting leave to the defendant/applicant to open his defence and address the court. Although the substantive case was adjourned to 3-7-2001 for the delivery of the judgment the motion was seeking to arrest, the motion was for undisclosed reasons fixed for hearing on 27-9-2001, well after the date of 3-7-2001 when the judgment, the subject matter of the application shall have been delivered.
Thus, in spite of being fully aware of the pending motions filed by the defendant for the amendment of the statement of defence and for an order arresting the judgment of the trial court, the learned trial judge proceeded and delivered her judgment in the substantive case finding for the plaintiff against the defendant on 3-7-2001. It is against this judgment that the defendant had decided to appeal to this court. The notice of appeal dated 4-7-2001 was filed on 5-7-2001.
In accordance with the rules of this court, briefs of argument were duly filed and served between the parties and this court. The defendant who shall henceforth in this judgment be referred to as the appellant, had filed his appellant’s brief of argument on 5-11-2001 in which he had identified the following issues for the determination of the appeal:-
“(a) Whether it was proper for the learned trial judge to adjourn the matter for judgment to 3-7-2001 when the motion for Amendment and leave to file counter claim was pending before the lower court.
(b) Whether it was proper for the learned Trial Judge to have proceeded to deliver judgment on 3-7-2001 when there was pending before the lower court a Motion on Notice to arrest judgment and leave to the Appellant to conduct his defence.
“(a) Whether it was not an infringement of the Appellant’s Fundamental Rights to Fair Hearing for the learned Trial Judge to comment on the merits or demerits of the counter claim annexed as Exhibit in the Motion for Amendment which was never moved.”
The plaintiff who is now the respondent in this appeal had also filed a respondent’s brief of argument within the time extended by this court on 4-3-2002. In that brief of argument, two issues were formulated from the only two grounds of appeal filed by the appellant in his Notice of Appeal. The two issues are:-
(1.) Whether it was irregular for the learned Trial Judge to deliver his judgment on July 3, 2001 whilst a motion for the arrest of the judgment and leave to open the defence had been filed by the appellant.
(2.) Whether the appellant’s right to fair trial had been breached by the delivering of the judgment on July 3, 2001.”

It is observed that although the Notice of Appeal filed by the appellant in this appeal contains only 2 grounds of appeal, the learned counsel to the appellant had formulated 3 issues from these grounds of appeal in the appellant’s brief of argument for the determination of the appeal. A clear case of proliferation of issues in the appellant’s brief of argument which practice had been repeatedly condemned by this court and the Supreme Court in a number of cases. This is because such practice by counsel results in confusion and muddle usually leading to loss of sight of the real issue in the determination of an appeal. See the case of Alhaji Sule Agbetoba & Others v. The Lagos State Executive Council & Others (1991)6 SCNJ I at 12, (1991) 4 NWLR) (Pt. 188) 664 at 682 where Karibi-Whyte, JSC (as he then was) said:-
“This court has consistently and in several decisions advised counsel formulating issues for determination arising from grounds of appeal, to avoid prolixity and keep closely within the confines of the grounds of appeal relied upon. The ideal is to formulate an issue as encompassing more than one ground of appeal. It is not only undesirable, but also confusing to split a ground of appeal into more than one issue.”
See also Agu v. lkewibe (1991)3 NWLR (Pt.180) 385; Labiyi v. Annetiola (1992)8 NWLR (Pt.258) 139; Chevron Nigeria Ltd v. Onwugbelu & Others (1996) 3 NWLR (Pt.437) 404 and Aniekwe & Others v. Okereke (1996)6 NWLR (Pt.452) 60. In the present case, having regard to the appellant’s two grounds of appeal contained in his Notice of Appeal, his real complain against the judgment of the trial court is that he had been denied fair hearing. Therefore the only issue for determination in this appeal is whether the appellant’s right to Fair Hearing had been breached by the lower court’s proceeding to deliver judgment on 3-7-2001 while the appellant’s two motions on notice were still pending unheard before that court.
In support of this issue, it was argued by the appellant that relying on the case of Ebenezar Nwokoro & Others v. Titus Onuma & Anor. (1990) 5 SCNJ 93, a party to litigation before the court like the appellant, must be heard before the court can determine his civil rights or obligations. That by not considering the Motion on Notice for amendment and leave to file counter-claim, the lower court had manifestly denied the Appellant his Fundamental Right to Fair Hearing which resulted in a miscarriage of justice if the cases of Mohammed v. Kano N.A. (1968) All NLR 424 and Adigun v. Attorney General, Oyo State (1987) 1 NWLR (Pt.53) 678, are taken into consideration.
For the respondent however it was contended that taking into consideration of the conduct of the appellant and “his counsel throughout the trial of this case, the appellant’s claim that he was denied Fair Hearing can not be substantiated. That on 24-5-2001, the lower court invited the learned counsel to the appellant to address the court but the learned counsel refused to do so. Citing and relying on the cases of Kaduna iles Ltd v. Umar (1994) 1 NWLR (Pt.319) 143 at 159 and Ajaokuta Steel Co Ltd v. O.O.C. Biosah & Co. Nigeria Ltd (1997) 11 NWLR (Pt.527)145 at 157, learned counsel to the respondent argued that the lower court did all it could to give the appellant the opportunity of being heard but that the appellant had refused. Learned counsel while conceding that the appellant’s Motions were not heard before the delivery of the judgment, he argued that the motions were most irregular, out of place, and filed only with the intention of delaying the fair hearing and conclusion of the case. In particular, he referred to the motion filed by the appellant to arrest the judgment of the lower court and argued that as the motion was fixed by the Registry of the lower court for hearing on 27-9-2001 while the judgment had been adjourned for delivery on 3-7-2001, he believed that the attention of the learned trial judge was not drawn to the motion to arrest the judgment by the learned counsel to the appellant.
It is indeed a basic principle of law that where a person’s legal rights or obligations are called into question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regard to such rights or obligations. Put differently, it is an indispensable requirement of justice that an adjudicating authority, to be fair and just shall hear both sides, giving them ample opportunity to present their case. See Gukas v. Jos International Breweries Ltd (1991) 6 NWLR (Pt.199) 614 at 623 and Alhaji Mohammed and Another v. Lasisi Olawunmi (1990)2 NWLR (Pt.133) 458 at 485. Accordingly, a hearing can only be said to be fair when, all the parties to the dispute are given a hearing or an opportunity of a hearing. Thus, if one of the parties is refused or denied a hearing or is not given an opportunity of being heard, such hearing cannot qualify as a fair hearing under the audi alteram partem rule. See Aladetoyinbo v. Sunmonu (1990)6 NWLR (Pt.154)98 and Otapo v. Sunmonu (1987)2 NWLR (Pt.58)587 at 605.
In the case of Mohammed v. Olawunmi (1990)2 NWLR (Pt.133) 458, a Motion for stay of proceedings was filed before the trial court. The respondent in that application raised a preliminary objection to the motion. The said preliminary objection was dismissed by the trial court which proceeded to grant the motion for stay of proceedings without calling on the respondent to reply to the application. On appeal, the Supreme Court held that the application for stay having been granted without hearing both parties, the appellants were entitled to complain that they were not given a hearing, much less, a fair one.
In the present case, it is crystal clear that the trial court was in grave constitutional error when it failed to hear the appellant’s two motions on notice duly served on the respondent for leave to amend the appellant’s statement of defence and file a counter-claim, and for order arresting the judgment reserved to allow the appellant opportunity to defend the action before proceeding to deliver its judgment on 3-7-2001. It is quite clear from the record of this appeal particularly at the proceedings of the trial court of 24-5-2001 at page 68 of the record where the appellant was described as defendant/applicant, that the learned trial judge was fully aware of the pending motions before proceeding to deliver her judgment without giving the parties particularly the appellant a hearing on the motions before deciding on the parties respective rights and obligations. Without any shadow of doubt, such conduct on the part of the learned Trial Judge constituted a definite infringement of the appellant’s right of fair hearing entrenched in Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria which not only entails the right to hear a party on any issue which could be resolved to his prejudice but also to ensure that the hearing is fair and in accordance with the audi alteram partem and nemo judex in causa sua principles. It is also important to emphasize here that the right to fair hearing is a fundamental constitutional right guaranteed by the 1999 Constitution of Nigeria and its breach in any trial nullifies, without any doubt, such trial. The law is also settled that it is unnecessary for any person alleging a denial of fair hearing to establish any injury or prejudice to himself before he may invoke his right to fair hearing. See Adigun v. Attorney General, Oyo State and Ors. (1987) 1 NWLR (Pt.53) 678 at 707- 708.
The case of First Bank of Nigeria Plc v. Obiechina Ejikeme (1996) 7 NWLR (Pt.462) 597 was a decision of this court where it was held that the learned trial judge’s refusal to hear the appellant’s application for leave to enter its defence and address the court, as in the present case, and proceeded to deliver judgment in that case amounted to denial of fair hearing resulting in nullifying the proceedings. Therefore it is not at all in doubt that the right to fair hearing is a fundamental constitutional right the breach of which, particularly in trials naturally nullifies such proceedings. A hearing certainly can not be said to be fair if one of the parties is flagrantly refused a hearing or denied the opportunity to be heard or present his case as happened in the present case. See Olagunyi v. Oyeniran & Ors. (1996) 6 NWLR (Pt.453)127 at 146.
In the result this appeal succeeds and the same is accordingly hereby allowed. The proceedings of the lower court including the judgment of that court delivered on 3-7-2001 in violation of the appellant’s right of fair hearing are hereby declared a nullity. Consequently, the case is hereby remitted to the trial court for hearing afresh by another Judge of the Anambra State High Court of Justice other than Izuako, J.
There shall be N5000.00 costs to the appellant against the respondent.

IGNATIUS CHUKWUDI PATS ACHOLONU, J.C.A.: I have read in advance the lead judgment of my learned brother MOHAMMED, JCA, and I agree with his methodical and graphical analysis of the case. It is I must confess mind boggling that when on the date the learned trial Judge decided on his own to close the case for the defence, there was a Counsel in court who appeared to represent the defendant and had evidenced the intention to mention the motion for amendment and put up a counter claim. It is individous to ride a rough shod of the defendant’s case and pretend that the attempts of the defendant to squarely put the matter in a befitting manner were non issue. To worsen the situation, when the Defendant/Appellant through his motion had sought the arrest of the proposed judgment of that Court, the return date was fixed after the date the judgment was to be given. Where is the fairness where the court below fully aware that consistent effort was being made by the defendant to be fully heard using the machinery of the procedure very well known by the Court, decided to ignore these effects and behave as though the defendant should not or ought not to be heard. The beauty of hearing a case on merit is that it enables the adjudicating tribunal to weigh both sides of the case on an imaginary scale. Enthusing on the elegance and romance of the adversorial system of jurisprudence or Court processes, Sir, Winston Churchill stated that the beauty of the common law is that people can be allowed to canvass their case without any hindrance or in any way being prevented. A lot has been written about the importance of fair hearing and my learned brother has in the lead judgment cited many of such cases to show that it amounts to a Constitutional breach of fair hearing where the court uses its awesome majestic powers to thwart the efforts of the other party from being heard.
I would therefore allow the appeal and set aside the judgment of the lower court. I abide by the consequential Orders made therein.

S. A. OLAGUNJU, J.C.A.: I have had a preview of the judgment just delivered by my learned brother, MOHAMMED, JCA., which has adroitly articulated the entire plenitude of the bloated issues raised by the appellant which zeroed in on the breach of the appellant’s right of fair hearing when the learned trial judge, apparently incensed by the appellant’s dilatory tactics, decided to bring the prolonged trial to an end by closing the appellant’s defence, about 17 months after the plaintiff/respondent had closed her case, but while the appellant’s two motions were still pending before the court.
The reaction of the learned trial judge which turned out to be impulsive both in practical terms and in law is counter-productive. From the practical standpoint, frustrating as the conduct of the appellant might appear to be, judging from opening his defence by fits and starts before embarking upon irregular attendance at the trial followed by a desperate resort to filing motions, the learned trial judge has by resenting the appellant’s cunning and overweening attitude without first clearing the legal procedural hurdles cut off his nose to spite his face.
But more importantly, on the hard bone of the law, the learned trial judge is in a serious breach of the appellant’s right of fair hearing, firstly, when after repeated reminders he ignored the appellant’s motion filed on 25/10/2000 praying the court for leave to amend his statement of defence and to file a counter-claim which was still pending when the judgment was delivered. Secondly, equally censurable and unedifying is the stratagem by the learned trial judge of fixing for hearing on 27/9/2001 the appellant’s motion filed on 5/6/2001 asking for an order to arrest the judgment already fixed for 3/7/2001 and for leave to be allowed to continue the defence of the case that had remained stagnant some 16 months to the time the motion was filed
The leading judgment has made an indepth examination of the breach of the rule of fair hearing the relevant one that is applicable to the facts of this case being encapsulated in the maxim audi alteram partem, meaning hear the other side. Declaring the maxim as one of the criteria and attributes of the right of fair hearing the Supreme court in Kotoye v. Central Bank of Nigeria, (1989) 1 NWLR. (Part 98) 419, said, at page 444, that:
“the court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision which may be prejudicial to any party in the case. See Sheldon v. Bromfield Justices (1964) 2 Q.B. 573, at P. 578.”

On the origin and raison detre of the principle of fair hearing, in Offor v. The State, (1999) 12 NWLR. (Part 632) 608, 622, this court, per Onalaja, JCA., expounded in an enraptured wise-crack that:
“Fair hearing has ancient origin dating to the melodramatic incident in the garden of Eden as stated by Fortescue J. in R. V. Chancellor Master and Scholars of the University of Cambridge (1723) 1 STR. 557 ‘Even God himself did not pass sentence upon Adam before he was called upon to make his defence.”
From the nature of the right of fair hearing and the precedents of its application it is an admonition that in judicial deliberations both parties must be accorded a hearing as an inflexible rule. Therefore, when the learned trial judge entered judgment for the plaintiff/respondent without hearing or disposing of the defendant/appellant’s two motions pending before the court he was in breach of the appellant’s right of fair hearing guaranteed to every person by sub-section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. See, in particular, Ikeazor v. Ikeazor, (1994) 5 NWLR. (Part 346) 608, 623, and Onyekwuluje v. Animashaun, (1996) 3 NWLR (Part 439) 637, 644; and for a bird’s eye view of the principles of right of fair hearing, see Awotedu v. The Vice Chancellor, University of Ibadan, (1982) OYSHC. 262, 295-297; Aiyetan v. Nigerian Institute for Oil Palm Research (NIFOR), (1987) 18 NSCC. (Part 11) 777, 784, 798; and Onyemeh v. Egbechulam, (1996) 5 NWLR. (Part 448) 255, 266. As on the principle enunciated by Adigun v. Attorney-General of Oyo State, (1987) 1 NWLR. (Part 53) 678, 709, breach of constitutional right of fair hearing nullifies the whole trial it is cadit quaestio.
In conclusion let me note that adjourning a motion for hearing until after judgment in the action would have been delivered as a ruse to confront the party, with a fait accompli is a prank which cannot be sufficiently decried. It is worrisome that a similar ploy was adopted in Ndika v. Chiejina, (2003) 1 NWLR. (Part 802) 451, an appeal which originated from the same Judicial Division as the present appeal. It is to be hoped that the ploy is a coincidence and not a practice endemic to Ogidi Judicial Division of the Anambra State High Court.
Be that as it may, for the reasons canvassed hereinbefore and for more detailed reasons given in the leading judgment the proceedings at the court below are a nullity and I also set it aside. I adopt the consequential orders made by the leading judgment including order for costs.
The appeal succeeds and it is allowed.



Mrs. P. E. MaduFor Appellant



Appellant not represented but served.For Respondent


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