GAMBO MUSA & ANOR v. MALLAM JOHN
(2019)LCN/13695(CA)
In The Court of Appeal of Nigeria
On Thursday, the 25th day of July, 2019
CA/J/199/2016
RATIO
BIAS: WHETHER A JUDGE IS BIAS
What is bias?
The concept of bias has been defined in plethora of judicial authorities. It is for instance generally defined as a feeling in favour of one side in dispute or argument resulting in the likelihood that the Court so influenced will be unable to hold an even scale in the matter before it. In Kenon v Tekam (2001)14 NWLR (pt.732)12 at 41-42, Ayoola JSC held the concept as: ?Opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the Judge so influenced will be unable to hold an even scale. The word ?bias? was defined in Black?s Law Dictionary 10th Edition page 192 as a mental inclination or tendency, prejudice, predilection judicial bias is also defined at same page as a Judge?s bias toward one or more of the parties to a case over which the Judge presides. PER ADZIRA GANA MSHELIA, J.C.A.
JUDICIAL BIAS: WHEN BIAS IS NOT ENOUGH TO DISQUALIFY A JUDGE
Judicial bias is not enough to disqualify a Judge from presiding over a case unless the Judges bias is personal or based on some extrajudicial reason. See also Lawrence v A.G of the Federation (2007) LPELR ? 8566 (CA). PER ADZIRA GANA MSHELIA, J.C.A.
BIAS: HOW THE COURT CONSIDERS IF A TRIBUNAL IS BIAS AND THEREFORE DISQUALIFY THE PRESIDING JUDGE
In deciding whether a Tribunal is partial and therefore disqualified from presiding over an enquiry, the Court will not enquire whether the Tribunal did, infact, favour one side unfairly. The Court looks at the impression of right minded people. If reasonable people would think that in the circumstances of the case, there was a real likelihood of bias, then the decision cannot stand, the basis of this is that justice must be rooted in confidence and confidence is destroyed when right-minded people go away with the impression that ?the Judge was biased.?
See Comm of Local Government, Etc. v Ezemuokwe (1991)3 NWLR (Pt.181) 615, Onigbede v Balogun (2002)6 NWLR (Pt.762) 1 @ 22-23 paras C-A, Awosika v Igbeke (1999)8 NWLR (Pt.616) 656 at 695. PER ADZIRA GANA MSHELIA, J.C.A.
BIAS: THE NEED FOR COUNSEL TO REFRAIN FROM LEVYING UNFOUNDED ALLEGATIONS AGAINST JUDGES
In Edosomwan v Erebor (2001)13 NWLR (Pt.730) 265 the Court of Appeal reiterated the need for counsel to refrain from levying unfounded allegations on Judges. PER ADZIRA GANA MSHELIA, J.C.A.
FAIR HEARING: NATURE
This the principle of fair hearing as codified and entrenched in Section 36 of the 1999 Constitution requires the Court to decide a case on the evidence of or after hearing both parties to the dispute. This rule of fair hearing has been described by the apex Court as not a technical doctrine but one of substance and the test or question applied to is not whether injustice has been done or not from the judgment in question but whether a party entitled to be heard before deciding on his right was in fact given the opportunity of hearing. SeeKotoye v. C. B. N. (1989) 1 NWLR (Pt.98) 419 @ 448. Bearing in mind the above principles what is required to be applied to the facts and circumstances of the present case is the time test of fair hearing which is the objective impression of a reasonable person who was present at the trial and his view on whether from the observation justice has been done in the case. PER ADZIRA GANA MSHELIA, J.C.A.
JUDGMENT: WHEN A JUDGMENT IS ATTACKED ON THE GROUND OF BEING AGAINST THE WEIGHT OF EVIDENCE
Where a Judgment is attacked on ground of being against the weight of evidence, the appellate Court will seek to know the following, namely: (a) the evidence before the trial Court, (b) whether it accepted or rejected any evidence upon the correct perception, (c) whether it correctly approached the assessment of the evidence before it and placed the right probative value on it, (d) whether it used the imaginary scale of justice to weigh the evidence on either side, (e) whether it appreciated upon the preponderance of evidence which side the scale weighed having regard to the burden of proof. See MISR (Nig.) Ltd v Ibrahim (1974) 5 SC 55 at 62; Egonu v Egonu (1978) 11-12 SC 111 at 129, Agbonifo and Ukpe v Nden (1999)6 NWLR (Pt.606) 292 @ 301. PER ADZIRA GANA MSHELIA, J.C.A.
APPEAL: WHEN A TRAIL COURT DID NOT PROPERLY EVALUATE EVIDENCE BROUGHT BEFORE IT BY PARTIES
The next point to consider is whether the trial Court did not properly evaluate the evidence adduced before it by parties. It is settled principle of law that evaluation of evidence and ascription of probative value is the primary function of a trial Court and an appellate Court can only interfere with it if they are perverse and lead to miscarriage of justice. See Adeye v Adesanya (2001)5 NSCQR 252 262, Abisi v Ekwealor (1993)6 NWLR (Pt.302) 643, Atolagbe v Shorun (1985)1 NWLR (Pt.2) 360, Obodo v Ogba (1987)2 NWLR (Pt.54)1 and Okonkwo v Okonkwo (2011)1 WRN 1 @ 28. PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria
Between
1. GAMBO MUSA
2. BAKAU MUTA Appellant(s)
AND
MALLAM JOHN Respondent(s)
ADZIRA GANA MSHELIA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Borno State High Court delivered on the 18th day of June, 2013 by Mamza J. in Suit No. BOHC/KDG/CV/10/2011.
By a Writ of summons and statement of claim dated 10th day of November, 2011, the Respondent herein suing for himself and members of his family instituted an action against the Appellants at the Court below claiming among other reliefs a declaration of title to land as mentioned in paragraph 13 of the Statement of Claim at pages 4 and 5 of the record of appeal. The defendants now Appellants in response filed the statement of defence and counter-claim to which the Respondent filed a reply and defence. At the close of pleadings, the matter proceeded to hearing wherein the Respondent in proof of his case called 5 witnesses and the Appellants as Defendants, equally called 5 witnesses in defence. At the end of hearing written addresses were filed by parties and adopted. The learned trial Judge in his Judgment delivered on 18/06/2013 found in favour of the Respondent and granted the reliefs sought.
?The brief facts of the case as
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presented by the Respondent are that the respondent who instituted the action at the Court below is one of the family members of late kaka Pogur Mwa who during his lifetime lived in Ngadarma village of the present day Chibok Local Government Area of Borno State where the land in dispute is located. The said Kaka Pogur Mwa was said to be the founder of the land and the first settler on the land in dispute over which the appellants? were sued. The respondent sued the Appellants over the land now as farmland when the Appellants refused to hand over the land to the Respondent?s family which was initially entrusted to the 1st Appellant?s father, one Bla Mallum to be returned whenever it is asked for by the Respondent?s family.
The Appellants, who claimed not to have known any entrustment of the land to their father Bla Mallum, refused to return back the farmland to the Respondent family even when it was asked for on the ground that they inherited from their father. It was due to this tussle that the respondent sued the appellants at the lower Court which gave rise to this appeal, the respondent having succeeded at the trial Court.<br< p=””
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In keeping with our rules both parties filed and exchanged their Briefs of Argument. The Amended Appellants? Brief of Argument settled by A.S. Badagubi, Esq., respondent Brief of Argument settled by K.J. Ntafa Esq., Bashil Musa Esq., and H.C Yerima Esq., was dated 08/05/2017 and filed on 15/05/2017.
When the appeal came up for hearing T. A Lenkat Esq., adopted the Appellants Brief of Argument and urged the Court to allow the appeal. While K. J. Ntafa Esq., adopted the Respondent?s Brief of Argument and urged the Court to dismiss the appeal.
In the Appellants? Brief of Argument, three issues were distilled for determination in this appeal. The issues are:
i. Whether or not is safe for the trial Court Judge to continue with this matter when the issue of bias was raised by the appellants counsel; (distilled from ground 1).
ii. Whether or not the principle of fair hearing has not been breached by the trial Judge (distilled from ground 1).
iii. Whether the trial Court properly evaluated the evidence adduced before (sic) (distilled in ground iii).
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On the part of the Respondent, similar issues were distilled for determination as follows:
i. Whether the trial Judge at the court below was bias in the trial and determination of the case before it. (This issue flows from ground 1 of the grounds of appeal).
ii. Whether or not the appellants right to fair hearing was breached in the trial of the case at the court below. (This issue flows from ground 2).
iii. Whether or not the trial court failed to evaluate the evidence adduced before it in giving its Judgment. (This issue flow from grounds 3 & 4).
I have examined the issues raised by parties for determination in this appeal. The issues are similar as such I would adopt that of the appellant except issue three which appears to be incomplete. I would use issue three formulated by the respondent which is very clear.
ISSUE NO. 1
In arguing issue No. 1 learned counsel for the appellant submitted that, it is never safe for a trial Judge to proceed and determine a matter before it once issues of bias is raised. At page 17 of the record of proceedings the counsel itemize reasons that will make the Judge to decline jurisdiction which is contained in the
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deposition of the counsel that the attitude of the Court is unbecoming more particularly in paragraph 9 of page 17 of the said record. According to counsel real likelihood of bias must appear to be real likelihood of bias. Counsel referred to the case of Kenon v Tekam (2001)14 NWLR (Pt.732) 12 where decision is impeached on ground of bias or real likelihood of bias. That one of the strongest factors in real or likelihood of bias is hostility of strong personal animosity towards a person in a case see Kenon v Tekam (supra). According to counsel the rule against bias is one of the twin pillars of natural justice that required that a decision-maker must approach a matter with open mind that is free of pre-judgment and prejudice. That the rule is predicated on the transparent nature of justice that justice should not only be done but be seen to be done. That if successful issue of bias is raised either real or apprehensive bias is sufficient for the Court to set aside that decision. Learned counsel pointed out appellants? complaint before the Court below that the trial Court was hostile and it became apparent to counsel that justice will not be done to his
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clients. That having raised lack of confidence on the side of the presiding Judge, there was a bias or likelihood of bias since the trial Judge did not decline jurisdiction see Oguche v Kano State Public Service Commission (1968) (No proper citation supplied).
In response learned counsel for the Respondent submitted that in law, bias of a Judge in the determination of a case before him refers to his mental attitude or disposition towards a party to litigation and not to any views that he may entertain regarding the subject matter of the case. Reference made to Black Laws Dictionary 6th Ed page 162. According to counsel to charge a Judge with such a serious act of being bias, the complainant must as a matter of law prove the existence of such attitude or disposition toward the party to the case by clearly establishing the facts and grounds he relies upon before he can succeed in his complaint as such allegation is always taken to be serious against a Judge. See Ojengbede v Esan & Co (2001) 8 NSCQE 461 at 471-473. Counsel submitted that in this case from the whole proceedings at the Court below as contained in the record of appeal, there is no facts or
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grounds upon which an allegation of bias by the trial Judge can be sustained. It was further submitted that the counsel?s personal reasons for his withdrawal from appearance in the matter and his presumed loss of confidence in the matter were matters entirely arising or emanating from his personal individual feelings and perceptions about the case which were unknown to the trial Judge. See paragraphs 3 of the affidavit at page 16 of the record. Counsel submitted that in law, the more suspicion of ill feeling or hatred entertained by a party to a case or counsel appearing in a case against a Judge cannot amount or taken to be a bias act on the side of the Judge. Reference made to Ojengbede v Esan (supra) page 47.
Learned counsel further submitted that apart from the bare and mere suspicion of the Judge being bias by the counsel he went further to attribute his personal encounter with the registrar of the Court, on matters entirely outside the trial of the case as constituting the evidence of the Judge being bias in the matter. Learned counsel referred to the incident as reflected in paragraphs 5(a), (b)(i), (g) and (s) at page 17 to 19 of the record
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where counsel considered act of Judge as being bias when he allowed the case to proceed in absence of his clients and the counsel from the Court though they were aware of the hearing date. Counsel submitted that even if the facts are true, such an act by a Judge in the conduct of a trial of a case before him cannot amount to an act of bias against an erring counsel or a party. InL.S.D.P.C v NLSF Ltd (1992)5 NWLR (Pt.24) 653 H, wherein it was held that absence of counsel from Court who had been duly notified of the date of a case is even an act of disrespect to Court. Respondent?s counsel contended that a counsel on notice who deliberately chooses to stay away from Court to represent his client cannot cite any Judge for being bias if the court proceeds against his case. Counsel argued that it was because of the inordinate attitude of appellant?s counsel in the conduct of the case at the Court below that the Court had to confront him at one time during the trial and that is why in paragraph 5 of the counsel affidavit in support of his motion for the withdrawal, he interpreted same as an act of being bias by the Judge in the matter. That it is
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not out of place for a Judge to caution an erring party or counsel in the conduct of a case before him. Counsel maintained that it was because of appellant?s counsel?s wrong conduct, personal feelings and arrogance which he exhibited before the Court that made him to come to a conclusion and deposed to those facts in his affidavit that the trial Court was bias which then made him to withdraw his appearance for his clients, the appellants in this case. He urged the Court to resolve this issue in favour of the Respondent.
Appellants? counsel raised an allegation of bias against the learned trial Judge. The reasons relied upon by counsel are contained in paragraph 234 5(a)-(11) of the affidavit in support of Notice of Intention to Withdraw Appearance.
The question now is whether the reasons advanced are sufficient to support allegation of bias against a Judge.
What is bias?
The concept of bias has been defined in plethora of judicial authorities. It is for instance generally defined as a feeling in favour of one side in dispute or argument resulting in the likelihood that the Court so influenced will be unable to hold an even
9
scale in the matter before it. In Kenon v Tekam (2001)14 NWLR (pt.732)12 at 41-42, Ayoola JSC held the concept as: ?Opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the Judge so influenced will be unable to hold an even scale. The word ?bias? was defined in Black?s Law Dictionary 10th Edition page 192 as a mental inclination or tendency, prejudice, predilection judicial bias is also defined at same page as a Judge?s bias toward one or more of the parties to a case over which the Judge presides.
Judicial bias is not enough to disqualify a Judge from presiding over a case unless the Judges bias is personal or based on some extrajudicial reason. See also Lawrence v A.G of the Federation (2007) LPELR ? 8566 (CA).
In deciding whether a Tribunal is partial and therefore disqualified from presiding over an enquiry, the Court will not enquire whether the Tribunal did, infact, favour one side unfairly. The Court looks at the impression of right minded people. If reasonable people would think that in the circumstances of the case, there was a real likelihood of bias, then the
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decision cannot stand, the basis of this is that justice must be rooted in confidence and confidence is destroyed when right-minded people go away with the impression that ?the Judge was biased.?
See Comm of Local Government, Etc. v Ezemuokwe (1991)3 NWLR (Pt.181) 615, Onigbede v Balogun (2002)6 NWLR (Pt.762) 1 @ 22-23 paras C-A, Awosika v Igbeke (1999)8 NWLR (Pt.616) 656 at 695.
In the instant case, the ground for the allegation of likelihood of bias averred in paragraphs 5(a)-(11) of the affidavit in support are reproduced hereunder for purpose of clarity and emphasis:
?5 That any decision to withdraw my appearance as counsel for the defendants herein is informed by the attitude of My Lord Hon. Justice C.A Mamza to my person in the conduct of this case itemized as follows:
(a) That my Lord Presiding over the matter on 3rd July, 2012 rightly granted leave to plaintiff to prove his case in the absence of counsel and defendants and/or any reason before the Court to explain absence of counsel and/or defendants.
(b) That a letter written on 3rd July, 2012 from my office explaining our absence reached the Court late due to
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the traffic situation in Maiduguri.
(c) That on my instruction, a letter dated 19th July, 2012 was written to the Registrar of the Court applying for copy of the record of proceedings of what transpired in Court ion 3rd July, 2012 in our absence for further necessary action.
(d) That we severally went to the Registrar of the Court for the record but same was not made available to us.
(e) That in view of the fact that the Court had a date line to dispose off this case, I was constrained to write a reminder to the registrar of the Court on 8th November, 2012 demanding a copy of the record or I make complain to appropriate authorities on the matter.
(f) That following the failure of the registrar of the Court to avail us a copy of the record despite assurances to do so by the afternoon of 12th November, 2012 to enable use to prepare for the matter on 13th November 2012, I was constrained to complain to the Honourable Chief Judge of Borno State on the issue vide a letter dated 12th November, 2012, copied to my Lord, Hon. Justice C.A Mamza.
(g) That to my surprise and consternation, on 13th November, 2012 when I appeared to proceed with our
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defence of the matter in obedience to the Court, My Lord the Presiding Judge took the issue of my complaint to the Chief Judge of Borno State on the subject aforesaid personally and addressed my person in very angry and unpleasant tones.
(h) That it was after addressing my person as above and in Court that My Lord directed her Registry staff to serve me a copy of the proceedings demanded.
(i) That the incident on 13th November, 2012 psychologically affected my person and standing as a legal practitioner in that Court, nonetheless, I braced up to continue the matter.
(j) That on 20th November, 2012 at the hearing of the defence, while leading my second witness my Lord Presiding Suo Motu made remarks to the effect that I was communicating with the witness in the box insinuating that I communicated with the witness on the answer to give to a particular question ?whether he knows one Mama Yasika.”
(k) That due to the seriousness of the insinuation, I demanded respectfully of My Lord to explain her insinuation.
(l) That I never communicated with the witness in the box as my head was all the while turned away from the witness.<br< p=””
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(m) That counsel for the plaintiff who was all the while observing things did not complain of any communication between myself and the witness, neither did any other person in the Court.
(n) That the presiding Judge insisted I proceed with the case, but I insisted on resolving the issue of alleged communications with the witness because of the graveness of the allegation.
(o) That because of my insistence on clarification from the Bench for the basis of making the insinuation, the learned presiding Judge rose abruptly and left the proceedings, minute book and Court hall and retired to her chambers.
(p) That close to an hour lapsed before My Lord the Presiding Judge returned to the Court hall and that only after I had intimated the registrar of the Court to inform my Lord that I intend to withdraw my appearance in view of what transpired in open Court.
(q) That at the resumed hearing of the matter, I informed My Lord the Presiding Judge of my desire to withdraw my appearance in the matter citing personal reasons lost of confidence, since I wasn?t afforded a fair hearing on a matter as grave as her insinuation.
(r) That My Lord
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the Presiding Judge was of the opinion I make my application to withdraw formal stating reasons in the affidavit, hence this Notice and Affidavit.
(s) That in view of all the foregoing I think and am of the opinion that (sic) cannot continue to appear in the matter since my Lord is casting aspersions on my person and integrity as a Minister in the temple of Justice, and refusing to afford me the benefit of clarifying issues raised Suo Motu by the Court.
(t) That it is equally in the interest of justice, respect for My Lord the Presiding Judge and the case of the litigants that I pray I be allowed to withdraw my appearance for them to engage another counsel.
(u) That I have already notified the Defendants of my intention to withdraw my representation ?.?
I have carefully gone through the facts deposed to in the affidavit in support of the Notice of Intention to Withdraw Appearance. I agree with Respondent?s counsel that from the circumstances of the case, there was no bias or likelihood of bias on the part of the Court. A counsel on notice who deliberately stays away from Court to represent his client cannot cite any
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Judge for being bias if the Court proceeds against him. Since Appellants? counsel was aware of the date of hearing and failed to advance good reasons for his absence, the learned trial Judge had the discretionary power to proceed with the matter. I cannot see any act of bias on the part of the Court. Appellants? counsel had the right to request for proceedings conducted in his absence. In my humble view if he had problem with the Registrar of Court, counsel should have first complained to the Presiding Judge. It is when the Court concerned failed to entertain his request then maybe he could channel the complaint to the Chief Judge. It is therefore not out of place for the Judge to caution an erring party or counsel in the conduct of his case before him. A Judge is entitled to advice, direct or even admonish a counsel or party appearing before him on conducts ?which are not in consonance with the rules and procedures of Court. What transpired between the trial Judge and appellants? counsel did not disclose any bias or likelihood of bias on the part of the Court. It was only the personal feelings of counsel that the Presiding Judge was
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hostile towards him. In Edosomwan v Erebor (2001)13 NWLR (Pt.730) 265 the Court of Appeal reiterated the need for counsel to refrain from levying unfounded allegations on Judges. From the printed record there is nothing to suggest that there appeared to be real likelihood of bias on the part of the Court. From the circumstances no reasonable person would think that the Court would favour one side unfairly. I would accordingly resolve issue one in favour of the Respondent.
ISSUE NO. 2
In arguing issues 2 learned counsel referred to page 11 of the record wherein appellants? counsel applied to recall PW3, 4 and 5 who testified in absence of the Appellants? counsel for purpose of cross-examination. That the Court refused to make a ruling on the issue. According to counsel the right to cross-examination is procedural right that is predicated on the doctrine of fair hearing. That the Appellants right to cross-examine PW3, 4 and 5 was breached by the trial Court. Counsel submitted that where a person alleging breach of fair hearing has been established, it follows that breach of fair hearing in a trial vitiate such proceeding rendering same
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null and void. SeeUsani v. Duke (2004)7 NWRL (Pt. 871) 116 and Section 36 (1) of the 1999 Constitution as amended. That any party must be afforded the opportunity to call all necessary witnesses in support of his case. That a party himself or Counsel must have the opportunity to Cross ? examine or otherwise challenge the evidence of witnesses called by the advisory. Learned Counsel contended that the refusal of the trial Court to even rule on the appellants application to recall PW 3, 4 and 5 occasioned a miscarriage of justice and a breach to their right to cross-examination. The conduct of the proceedings after the refusal of ruling shows that the trial Court ran foul of the Appellants? constitutional right to fair hearing. That fair hearing is predicated under the doctrine of natural justice. The rule of audi alteram partem which is one of the ingredients of fair hearing postulate that a Court should hear both side not only on the case but also in all material issues in a case before reaching a decision which may be prejudicial to any party in the case. That a Court or Tribunal should give the parties an opportunity to cross ? examine or
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otherwise confront or contradict all the witnesses that testified against them on every material decision on the case. That justice must not only be done but must manifestly and undoubtedly be seen to have been done. It is well settled that any proceedings conducted in breach of a parties right to fair hearing, no matter how well conducted will be rendered a nullity. That from the facts before this Court there is clear case of perverting justice. The right to fair hearing of the Appellants has been breached by the trial Court. See Pam and Other v. Nasiru Mohammed and Ors (2008) 16 NWLR (Pt. 1112) P 1 @ 48 paras E ? G where the concept of fair hearing was explained by Oguntade JSC. He urged Court to resolve issue in favour of the Appellants.
?
In response, learned Counsel for the Respondent submitted that this borders on lack of fair hearing as alleged by the Appellants. Counsel contended that before the Court below proceeded to hear the case, parties first of all had the opportunity to have only filed and exchange their respective pleadings. That at the trial of the case before the trial Court, parties had the opportunity and right to appear and
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call their witnesses, examined, cross-examined them before judgment in the matter was fully delivered on the merit of it after written addresses were filed by respective Counsel.
According to Counsel the contention of the Appellants that the singular act of the trial Court by allowing the Respondent?s witnesses in their absence to testify when they refused to appear in Court despite knowledge of the hearing date constitutes breach of their fundamental right to fair hearing in the case is a misconception of law having regard to the facts and circumstance of this case. According to Counsel the contention of the Appellants that the breach of their fundamental right occurred when the trial judge was said to have refused delivering a ruling in their application to recall witnesses called in their absence is a total misrepresentation and misleading in the circumstance of this case as such incident never happened before the trial Court throughout the trial of the cases.
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On the issue of refusal to cross- examine the Respondent?s witnesses, Respondent?s Counsel submitted that the trial Court was right in the circumstances to have exercised
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its discretion in allowing the Respondent to proceed and call his witnesses in the Appellants and their Counsel?s absence who were aware of the date but refused to appear in Court. That adjournment of cases even if sought for cannot be granted as a matter of course but on a cogent reason. That it is settled law that a Counsel or party to a case who having been served or aware of the hearing date of his case, but abandons, failed to come to Court or is negligent in the conduct of his case cannot complain of fair hearing see Buhari v. Obasanjo (2003)16 NSCQR 1 at 43 ? 45. That in this case Appellants and their Counsel did not only failed or refused coming to Court for their case but were negligent not to even care to write a letter for adjournment, or explaining why they were not in Court on that day despite service or knowledge of the hearing date. Counsel placed reliance on Shahimi v. Akinola (1993) 5 NWLR (Pt.294) 447 B-C on position of law with regard to absence of parties and Counsel from Court and their attitude in the conduct of their case.
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It was further submitted that the claim of the Appellants that the trial judge refused to deliver a
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ruling in an application to recall Respondent?s witnesses is unfounded. Counsel submitted that the record disclosed that after the Respondents remaining three witnesses testified on 3rd July, 2012 in Appellants? absence the Respondent closed his case on that day and matter was adjourned for defence. According to Counsel the additional record shows that before the Court could proceed to hear the defence on the said 4th September, 2012, the Appellants on 24th August, 2012 filed a motion dated 22nd August, 2012 seeking for the recalling of the Respondent?s witnesses that testified in their absence. That the said motion was heard and determined on 21st September, 2012. See pages 1-6 of the additional record. The said motion was dismissed. That on same day of ruling being 21st September, 2012 appellants prepared another motion and filed it on 24th September, 2012 seeking for the same relief of recalling the witnesses: The said motion was also heard and determined on 23rd January, 2012 by the Court striking it out. See pages 7 ? 15 of the additional record. Learned Counsel submitted that contrary to the contention of Appellants? counsel
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that ruling was not delivered in the motion filed and argued by them for recalling of Respondent?s witnesses is not only false but misleading having regard to the proceedings as contained in the additional record of this Appeal. That there was no breach of fair hearing for lack of or refusal to deliver any ruling by the trial Court as contended by the Appellants. That Appellate Court are bound by the record of Appeal. Reliance placed on Orugbo V. Una (2002) 11 NSCQUR 537 @ 550. According to Respondent?s Counsel there was no failure of fair hearing in the matter because even after the former Counsel withdrew his appearance another Counsel appeared and continued with the case and called all their witnesses in defence of the case. He urged the Court to resolve this issue in favour of the Respondent.
The complaint of the Appellants was that the trial Court refused to pronounce a ruling in respect of their application to recall PW 3, 4 and 5 for cross ? examination. The failure amounted to breach of fair hearing on the part of the Court according to the Appellants. What is required under the principle or concept of fair hearing is an
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ambidextrous standard of justice in which the Court must or must be seen to be fair equally to both sides of the conflict or dispute. See Amadi V. Thomas Aplin & Co., (1972) 4 SC 428 and Mohammed V. Olawunmi (1990) 2 NWLR (Pt.133) 458 at 485. This the principle of fair hearing as codified and entrenched in Section 36 of the 1999 Constitution requires the Court to decide a case on the evidence of or after hearing both parties to the dispute. This rule of fair hearing has been described by the apex Court as not a technical doctrine but one of substance and the test or question applied to is not whether injustice has been done or not from the judgment in question but whether a party entitled to be heard before deciding on his right was in fact given the opportunity of hearing. SeeKotoye v. C. B. N. (1989) 1 NWLR (Pt.98) 419 @ 448. Bearing in mind the above principles what is required to be applied to the facts and circumstances of the present case is the time test of fair hearing which is the objective impression of a reasonable person who was present at the trial and his view on whether from the observation justice has been done in the case. See
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Whyte v Police (1966) NMLR 215 at 219, and Ekiyor v. Bomor (1997) 9 NWLR (Pt.579) 1 at 11-15. On the question of whether or not Appellants were accorded fair hearing it is my humble view, that a reasonable man who was hypothetically present in the proceedings before the lower Court will opine that the said Court or trial judge afforded the appellant ample opportunity to present their defence. The proceedings of 21/9/2012 contained in the additional record shows that the application of the Appellants to recall the PW3, 4 and 5 was dismissed by the trial Court. One of the reasons given was that the affidavit in support was not signed. After the ruling the Appellants filed a similar application to recall the PW3, PW4 and PW5 for cross-examination on 21st September, 2012. The motion filed on 24th September, 2012 was heard and Ruling in respect of same was delivered on 23rd October, 2012 dismissing the application on the ground that it was an abuse of Court process to file similar application that was earlier dismissed.
Appellants did not appeal against the two rulings. I agree with respondent?s counsel that appellant?s contention that the trial Court did
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not rule on their application to recall PW3, 4 and 5 for cross examination, was misleading. Having not appealed against the two rulings, appellants? cannot therefore complain that they were not afforded fair hearing. No reasonable person in the circumstances would say that the trial Court breached the appellant?s fundamental right to fair hearing. I will similarly resolve issue 2 in favour of the respondent.
Issue No. 3
Learned counsel submitted that the trial Court did not properly evaluate the evidence adduced before it by the respondent who is contending title over farmland situated at Mbita Pogar Mwa Ngadarma village in Chibok. Counsel contended that respondent averred this fact in his statement of claim but in the course of adducing evidence he failed to describe to the trial Court where exactly the land is situate at. Counsel also referred to page of 10 of the record in his response to the counter-claim which shows that the respondent is not sure as to the identity of the land in dispute. Learned counsel contended that the appellants told the Court that the land in dispute is situate at Mbabatsu or Kofar Gada at Malla Town of
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Mbalala District of Chibok. That DW5 gave the description of the land as situate at Mbbatsu. That this description remains valid and was not contradicted by the respondent. That the issue of identity of the subject matter was called to issue and the trial Court did not properly evaluate the evidence adduced before it. Learned counsel contended that it is now firmly settled in a plethora of decided authorities that the land to which a declaration of title is sought must be sufficiently identified. See Ezeokeke and Ors v Uga and Ors (1962)1 NWLR (Pt.1) 484 @ 484. Amodu Rufai v Rickets and 5 Ors (1934)2 WACA 95. That before a declaration of title is given the land which it relates must be ascertained with certainty as a matter of fact and also where identity of land is in dispute. According to counsel the degree of uncertainty displaced by the respondent became the duty of the trial Court to ascertain the function of assessment of credibility of witness evidence which is essential for the trial Court to do, but not the Appeal Court to do so. That the failure of the trial Court to do so, make safe for the appeal Court to set aside the decision of the trial Court
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for want of degree of certainty. Reliance placed on Babatunde Ajayi v Texaco Nigeria Ltd and Ors (1987)3 NWLR (Pt.62) 577. He urged the Court to resolve this issue in favour of the appellants.
In response, learned counsel for the respondent submitted that this issue flows from grounds three, four and the omnibus ground of the appellants? ground of the appeal. Counsel submitted that it is settled principle of law that evaluation of evidence is the primary function of a trial Court and an appellate Court can only interfere with it if they are perverse and lead to miscarriage of justice. See Adeye v Adesanya (2001)5 NSCQR 253 at 262. That perversity of evaluation of evidence by the trial Court arises when there is a failure of the trial Court to resolve relevant issues and to make findings on material facts by taking into consideration the credibility of witnesses. See Nnorodim v Ezeani (2001)5 NSQR 510 A-C. That in this case the trial Court fully and adequately evaluated the evidence of all the witnesses of both parties in the case and made findings thereof before arriving at the decision on its merit. Learned counsel pointed out that the issues of
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identity of land in dispute is different from the issue of evaluation of evidence.
Learned counsel contended that the issue of identity of land was not separately formulated as such same is incompetent. See Momodu v Momoh (1991) 1 NWLR (Pt.169) 608 at 620-621. That the issue of identity of land which has no ground of appeal thereon having been formulated is liable to be struck out as incompetent. Be that as it may counsel submitted that the trial Court rightly found as a fact that by pleaded facts and evidence the respondent has proved his title to the land in dispute by properly and adequately identifying and describing with certainty the size, location and nature of the land. Counsel referred to page 62 lines 17-23 of the record where the land was proved to be that which measures 1 square kilometers situated at Ngadarma area in Chibok L.G.A of Borno State.
?
Learned counsel further submitted that it is also clear that apart from describing and identifying the land in dispute, the respondent by evidence clearly traced his root of title to the land in dispute through traditional history as rightly found by the court. Counsel further submitted
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that the mere fact that the plaintiff and the defendants at the trial Court ascribed in their pleadings different names to the land in dispute does not become an issue in so far as there is by evidence an identified land over which the parties are disputing or litigating upon. See Makanjuola v Balogun (1989)3 NWLR (Pt.108) 192 at 211 G-H. Counsel contended that the fact that the respondent pleaded at the trial Court that the land in dispute is called ?Mbita Pogur Mwa?, located at a place called Ngadarma, and the appellants pleaded that it is called ?Mbabatsu? or ?Kofar Gada?, located at Mbalala does not become an issue as both refer to the same land under litigation and identified by them. That from the record all the witnesses called identified the land and know the land as one in dispute and not any other land known to any one of them. He urged the Court to resolve the issue in favour of the respondent.
?
The complaint of the appellants under this issue relates to evaluation of evidence. When an appellant complains that a Judgment is against the weight of evidence, all he means is that when the evidence adduced by him
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is balanced against that adduced by the respondent, the Judgment given in favour of the respondent is against the weight which should have been given to the totality of the evidence before him. See Ezebilo Abisi & Ors v Vincent Ekwealor & Ors (1993)6 NWLR (Pt.302) 643 at 674.
Where a Judgment is attacked on ground of being against the weight of evidence, the appellate Court will seek to know the following, namely: (a) the evidence before the trial Court, (b) whether it accepted or rejected any evidence upon the correct perception, (c) whether it correctly approached the assessment of the evidence before it and placed the right probative value on it, (d) whether it used the imaginary scale of justice to weigh the evidence on either side, (e) whether it appreciated upon the preponderance of evidence which side the scale weighed having regard to the burden of proof. See MISR (Nig.) Ltd v Ibrahim (1974) 5 SC 55 at 62; Egonu v Egonu (1978) 11-12 SC 111 at 129, Agbonifo and Ukpe v Nden (1999)6 NWLR (Pt.606) 292 @ 301.
I would like to state that the complaint of the appellant regarding the identity of the land in dispute is in order because the complaint
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can be considered under the omnibus ground. It need not be formulated as a ground of appeal as same touches on evaluation of evidence.
On the issue of identity of the land in dispute the plaintiffs in paragraphs 3 and 8 of the statement of claim clearly identified the land in dispute, known as ?Mbita Pogur Mwa: situate at Ngadarma village. The defendants in paragraph (5a) identified the land as situate at a place known as Mbabatsu or Kofar Gada at Mbalala town of Mballa District of Chibok L.G.A. All the plaintiff?s witnesses i.e PW 1-PW5 identified the farmland in dispute DW1 also confirmed in his evidence in Chief and even under cross-examination that the farmland he is farming was given to his father (Nkeki) on trust and he has been farming on the plaintiff?s land for 30 years. That the farmland shown to the plaintiff as his own is the farmland they have been farming with his father. This piece of evidence clearly shows that both parties know the land in dispute. Even if both parties identity the land with different names, it will not change the fact they know the identity of the farmland over which they are litigating upon. See
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Makanjuola v Balogun (1989)3 NWLR (Pt.108) 192 @ 2116 paras H, wherein the Supreme Court held that ?where the parties by the evidence adduced, both oral and documentary, are ad idem on the identity of the land in dispute, the fact that different names are ascribed to it or that the area where it is located is called different names is not fatal to the case.”
The next point to consider is whether the trial Court did not properly evaluate the evidence adduced before it by parties. It is settled principle of law that evaluation of evidence and ascription of probative value is the primary function of a trial Court and an appellate Court can only interfere with it if they are perverse and lead to miscarriage of justice. See Adeye v Adesanya (2001)5 NSCQR 252 262, Abisi v Ekwealor (1993)6 NWLR (Pt.302) 643, Atolagbe v Shorun (1985)1 NWLR (Pt.2) 360, Obodo v Ogba (1987)2 NWLR (Pt.54)1 and Okonkwo v Okonkwo (2011)1 WRN 1 @ 28.
In the instant case, the trial Court fully and adequately evaluated the evidence of all the witnesses of both parties in the case and made findings thereof arriving at the decision on merit. The respondent by his evidence
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clearly traced his root of title to the land in dispute through traditional history as rightly found by the Court. The testimonies PW1-5 is supported by the evidence of DW1 who clearly stated that the farmland in dispute belonged to plaintiff?s father. Although plaintiff is required to prove his case on the strength of his case, he can rely on the evidence adduced by defence, which supports his case, like in this case at hand. It is evident the traditional history adduced by the Respondent and his witnesses are more probable than that adduced by the Appellants.
The learned trial Judge?s finding at page 68 of the record supports this fact, wherein he said:
?It is interesting to note that DW1 Idi Nkeki under cross examination admitted that the farmland in dispute belongs to the plaintiff. This is what he said under cross-examination:
?He has been farming on the plaintiff?s land for 30 years. The farmland he showed the plaintiff as their own was the farmland he was farming together with his father. The farmland of his father and the farmland in dispute are the same.?
DW1 having admitted in his evidence that
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the farmland in dispute belongs to the plaintiff, defendants cannot claim to have a better title than the plaintiff.?
It is clear from the record that the evidence led in the action by both parties are put on an imaginary scale, the scale of justice and weighed together by the trial Court. The admissible and relevant pieces of evidence for the plaintiff and that for the defendant are put on each side of the scale respectively and weighed together in order to determine whose evidence weighs more or is heavier than the other, proof is on balance of probability. See Mogaji v Odofin (1978) 4 SC 91. Based on the totality of the evidence adduced, the learned trial Judge rightly entered Judgment in four of the Plaintiff/Respondent. I will accordingly hold that the Judgment is not against the weight of evidence. The learned trial Judge properly evaluated the evidence adduced before him by both parties, as such the findings are not perverse. When the trial Court has satisfactorily performed its primary function of evaluating the evidence and ascribing probative value to it, an appellate Court has no business interfering with its findings on such evidence.
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I will not interfere with the findings made by the trial Court. Issue 3 is resolved in favour of the Respondent.
In the result, having resolved all the issues in favour of the respondent, I hold that this appeal is devoid of merit. Appeal is dismissed. I affirm the Judgment of the High Court of Borno State delivered by C. A Maza J on 18th day of June, 2013 in Suit No. BOHC/KDG/CV/10/2011. There shall be costs of N50,000.00 awarded in favour of the Respondent.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the advantage of reading the draft of the lead judgment delivered by my Lord, ADZIRA GANA MSHELIA, PJCA.
I agree with the reasoning contained therein and the conclusion arrived thereat that the Appeal is devoid of merit and should be dismissed.
I also dismiss the Appeal and endorse the consequential orders made in the lead judgment in Suit No. BOHC/KDG/CV/10/2011 delivered on 18th day of June, 2013 including that on cost.
BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the leading judgment of my learned brother GANA MSHELIA, and I am in agreement with his reasoning and conclusion
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dismissing the appeal as well as the order for costs and have nothing else to add.
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Appearances:
T.A Lenkat, Esq. holding brief of S. Badagubi, Esq.For Appellant(s)
K. J Ntafa, Esq.For Respondent(s)
Appearances
T.A Lenkat, Esq. holding brief of S. Badagubi, Esq.For Appellant
AND
K. J Ntafa, Esq.For Respondent
