IKIMI v. IKIMI
(2022)LCN/16897(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Monday, October 31, 2022
CA/L/181/2017
Before Our Lordships:
Obande Festus Ogbuinya Justice of the Court of Appeal
Onyekachi Aja Otisi Justice of the Court of Appeal
Peter Oyinkenimiemi Affen Justice of the Court of Appeal
Between
CHIEF TOM OMOGHEGBE IKIMI APPELANT(S)
And
MRS. THERESA OMAWUMI IKIMI RESPONDENT(S)
RATIO
WHETHER OR NOT THE COURT MUST CONSIDER ALL ISSUES THAT HAVE BEEN JOINED BY PARTIES AND RAISED BEFORE IT FOR DETERMINATION
The Appellant has rightly submitted that, it is the settled position of the law that it is the duty of a Court, whether of first instance or appellate to consider all the issues that have been joined by parties and raised before it for determination. A Court has a duty to consider and pronounce upon the entire case put forward by a party before it. In our judicial system, it is a fundamental principle of administration of justice that every Court has a duty to hear, determine and resolve every such questions submitted to it; Okonji & Ors v. Njokanma & Ors (1991) LPELR-2476(SC) at pages 27-28, Edem v. Canon Balls Ltd & Anor (2005) LPELR-1007(SC) at page 31, Marine Management Associates Inc. & Anor v. National Maritime Authority (2012) LPELR-20618(SC), Abah v. Monday & Ors (2015) LPELR-24712(SC). A party to a dispute must be heard, without let or hindrance from the beginning to the end, on the issues submitted, even if the issues are frivolous or an abuse of process of Court, before the determination of his rights by a Court of competent jurisdiction. If the Court fails to hear, determine and resolve every such questions submitted to it, without a valid reason, then it has certainly failed in its duty.
The failure of a Court to consider and pronounce upon an issue submitted to it by a party would impact upon his right to fair hearing, which is a constitutional right. See Uzuda & Ors v. Ebigah & Ors (2009), Abah v. Monday & Ors supra). UBN Ltd & Anor v. Nwaokolo (1995) LPELR-3385(SC), Ovunwo & Anor v. Woko & Ors (2011) LPELR-2841(SC). Therefore, the Court must consider and make pronouncement on every issue submitted to it, unless if such amounts to hypothetical or academic issue, in which case the Court would not have jurisdiction to hear it. See Uzuda & Ors v. Ebigah & Ors (2009) LPELR-3458(SC) at 28-29, Opuiyo vs. Omoni Wari (2007) 6 SCNJ 131. PER OTISI, J.C.A.
WHETHER OR NOT FAILURE TO PRONOUNCE UPON AN ISSUE BEFORE THE COURT, AFFECTS THE PARTY’S RIGHT TO FAIR HEARING
A complaint that failure to pronounce upon an issue has impacted the party’s right to fair hearing is not one that is in the air. Fair hearing is not an abstract term. Fair hearing must be real and considered in the light of facts and circumstances of each case; Barigha v PDP (2012) LPELR-19712(SC), Olatunbosun v Annenih (2008) LPELR-8582(CA), Securities Solutions Ltd v. IGP & Anor (2021) LPELR-56042(CA) at page 27. The party complaining must demonstrate that his right to fair hearing has in actual fact been infringed upon by the failure to pronounce upon an issue. Failure of a trial Court to specifically pronounce on issues that are academic and not germane to the determination of the matter in controversy, does not amount to a denial of fair hearing. Where a real miscarriage of justice has not been established, the judgment shall not be declared a nullity; Savannah Bank of Nig Ltd v Starite Industries Overseas Corporation (2009) LPELR-3020(SC). PER OTISI, J.C.A.
FACTORS THAT DETEMINE WHETHER OR NOT A COURT IS COMPETENT TO DETERMINE A MATTER BEFORE IT
The law is also trite that a Court of law is competent to hear and determine any suit filed before it when:
(a) it is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other;
(b) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) the case comes before the Court initiated by the due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction.
See Madukolu v. Nkemdilim (1962) 2 SCNLR 341 at 348 (1962) 1 All NLR (Pt. 4) 587 at 595, Petroleum (Special) Trust Fund v. Fidelity Bank & Ors (2021) LPELR-56625(SC) at pages 45-46, NNPC & Anor v. Orhiowasele & Ors (2013) LPELR-24710(SC), Abdulaziz & Ors v. Jingtex (Nig) Ltd (2017) LPELR-43090(CA). PER OTISI, J.C.A.
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): The marriage between the parties in this appeal was dissolved on 24/3/2009 in Suit No. HAD/13HD/1998: Chief T. O. Ikimi v. Mrs. T. O. Ikimi. During the proceedings for the dissolution of the marriage between the parties, the Respondent herein elected to institute a separate action for ancillary reliefs as permitted by the Matrimonial Causes Act.
The suit seeking ancillary reliefs was commenced before the High Court of Lagos State, Coram, Y.O. Idowu, J., by way of an Application. The respective parties filed copious affidavits thereon. On 3/11/2016, the learned trial Judge resolved the suit in favour of the Respondent on the affidavit evidence, without taking any oral evidence.
Aggrieved by the ruling of the learned trial Judge, the Appellant lodged this appeal by way of Notice of Appeal filed on 14/11/2016, on six grounds of appeal, pages 410-417 of the Record of Appeal.
The parties filed Briefs of Argument. The Appellant’s brief was filed on 25/4/2018, while the Respondent’s Brief was filed on 23/9/2022. Both Briefs of Argument were deemed properly filed and served on 26/9/2022. At the hearing of the appeal on 26/9/2022, Dotun Oduwobi, Esq., adopted the Appellant’s Brief and urged the Court to allow the appeal, while S. A. Oshodi, Esq., with O.E. Adeosun, Esq., adopted the Respondent’s Brief and urged the Court to dismiss the appeal.
Out of the six grounds of appeal, the Appellant distilled the following four issues for determination:
a.) Was the learned trial judge right in failing to make a pronouncement at all on the general incompetence of the Applicant’s suit?
b.) In light of the conflicting copious affidavits filed by the parties in this suit, whether it was incumbent on the learned trial judge to have called for, and received oral evidence to resolve the material conflicts.
c.) Whether the judgment of the lower Court is sustainable having regard to the Court’s failure to:
i. properly evaluate and assess the evidence; and
ii. give due consideration to, and take into account, relevant and applicable principles of law.
d.) Whether the lower Court was right to have granted the claim for N7.2million being the sum already awarded in the earlier Suit No. HAD/13HD/1998 between the same parties as in this suit?
For the Respondent, the issues for determination were framed in this manner:
a. Whether the suit of the Respondent at the lower Court was competent for adjudication?
b. Whether there were any material conflicts in the affidavits filed by the parties to necessitate the calling of oral evidence?
c. Having regards to the evidence before the Court, and the relevant principle of law, whether the judgment of the Court is not sustainable upon a proper evaluation of same by the lower Court?
d. Whether the lower Court was right to have granted the claim for N7.2million?
The issues as formulated by both parties seek similar resolutions. I shall adopt the issues as framed by the Appellant, whose appeal this is.
Arguments
Issue 1
The Appellant submitted, as has been well settled by various judicial pronouncements, that a Court is under a bounden duty to consider, decide and pronounce on all the germane issues raised before it and to give its reasons for arriving at its decision. The decisions cited and relied on were Solid Unit (Nig.) Ltd. v. Geotess (Nig.) Ltd. (2013) LPELR-20724 (CA), Ali v. Uzoigwe (2016) LPELR-40972 (CA).
The Appellant, as respondent before the lower Court, had in the course of the hearing of the Respondent’s Application before the lower Court, challenged the competence of the suit before the lower Court arising from the delay and the length of time that elapsed before bringing the action. The submissions on the issue were not at all addressed by the lower Court, either to uphold the validity of it or to reject it. That even if the lower Court deemed the point so raised irrelevant, it was incumbent on the Court to specify the reason why the issue was considered irrelevant, citing Ali v. Uzoigwe (supra), Welle v. Okechukwu (1985) 6 S. C. 132. The Appellant argued that the failure of the lower Court to make pronouncement on this issue was a failure of an essential duty which failure is, deemed by law, to occasion a miscarriage of justice, impugning the competence of the judgment itself, and ought to result in its nullification. The Court was urged to resolve this issue in favour of the Appellant, nullify the judgment of the lower Court and set it aside.
In reply, the Respondent submitted that the suit of the Respondent at the lower Court, Suit No. ID/410MJ/201, was competent. Relying on Order XIV of the Matrimonial Causes Rules, particularly Rule 1 (c) Rule 6, under which the application of the Respondent was brought, it was argued that the law allows actions for ancillary reliefs in matrimonial causes as a distinct head of claims for maintenance, settlement of properties etc. The Respondent only followed the law in filing an application for ancillary relief.
It was submitted that, generally, a suit is competent when it is brought by due process of law, before an appropriate Court and by a person who is entitled to bring such an action, citing Madukolu & Ors v. Nkemdilim (no citation). That there were no arguments canvassed either at the lower Court or in the Appellant’s brief of argument to show that the action for ancillary relief was not brought by due process of law, or that it was not before an appropriate Court or that the Respondent was not the person entitled to bring the action. That it was therefore disingenuous for the Appellant to contend that the suit was generally incompetent. Competence deals with jurisdiction.
It was further submitted that, while a Court is bound to consider, decide and pronounce on all the germane issues raised before it and to give its reasons for arriving at its decision, it was not on account of all cases of failure to pronounce on such raised issues that a judgment will be set aside, citing the case of Securities Solutions Ltd v IGP & Anor (2021) LPELR-56042(CA) at pages 23-26. For a judgment to be set aside on the basis of the alleged non-resolution of all the issues raised there must have been a miscarriage of justice, referring to the case of Osasona v. Ajayi (2004) LPELR (2790) 1 at 20. It was submitted that in this instance, there was no miscarriage of justice and that the Appellant had not alleged nor proffered any argument to suggest a miscarriage of justice for the alleged non-resolution of the issue of the delay in bringing the application for ancillary reliefs.
It was further submitted, assuming without conceding that the issue of the delay was crucial to the resolution of the dispute between the Appellant and the Respondent, that an Appellate Court can consider, decide and pronounce on such issues where necessary, relying on the case of Orianwo v Okene (2002) 14 NWLR (PT. 786) 156 at 182-183. Therefore, if necessary, that this Court can determine the issue.
The Respondent argued that, from the argument of the Appellant, he was pleading limitation of time for the bringing of the action for ancillary relief by the Respondent. But the Matrimonial Causes Act did not provide for a limitation period in bringing an action for ancillary reliefs. The Appellant cannot therefore read into the Matrimonial Causes Act what is not in the law, citing UBA Plc v CAC & Ors (2016) LPELR-40569(CA) at pages 20-21. That limitation of action must be specifically pleaded before it will avail the Appellant, relying on UBN v. Petro Union Oil & Gas Co. Ltd & Ors (2021) LPELR-56671(SC) at page 56.
Further, that before a party can plead limitation of action or utilize it as a defence, it must have been conferred by statute, as it was not an inherent right. The Court was urged to resolve this issue against the Appellant and in favour of the Respondent.
Resolution
The Appellant has rightly submitted that, it is the settled position of the law that it is the duty of a Court, whether of first instance or appellate to consider all the issues that have been joined by parties and raised before it for determination. A Court has a duty to consider and pronounce upon the entire case put forward by a party before it. In our judicial system, it is a fundamental principle of administration of justice that every Court has a duty to hear, determine and resolve every such questions submitted to it; Okonji & Ors v. Njokanma & Ors (1991) LPELR-2476(SC) at pages 27-28, Edem v. Canon Balls Ltd & Anor (2005) LPELR-1007(SC) at page 31, Marine Management Associates Inc. & Anor v. National Maritime Authority (2012) LPELR-20618(SC), Abah v. Monday & Ors (2015) LPELR-24712(SC). A party to a dispute must be heard, without let or hindrance from the beginning to the end, on the issues submitted, even if the issues are frivolous or an abuse of process of Court, before the determination of his rights by a Court of competent jurisdiction. If the Court fails to hear, determine and resolve every such questions submitted to it, without a valid reason, then it has certainly failed in its duty.
The failure of a Court to consider and pronounce upon an issue submitted to it by a party would impact upon his right to fair hearing, which is a constitutional right. See Uzuda & Ors v. Ebigah & Ors (2009), Abah v. Monday & Ors supra). UBN Ltd & Anor v. Nwaokolo (1995) LPELR-3385(SC), Ovunwo & Anor v. Woko & Ors (2011) LPELR-2841(SC). Therefore, the Court must consider and make pronouncement on every issue submitted to it, unless if such amounts to hypothetical or academic issue, in which case the Court would not have jurisdiction to hear it. See Uzuda & Ors v. Ebigah & Ors (2009) LPELR-3458(SC) at 28-29, Opuiyo vs. Omoni Wari (2007) 6 SCNJ 131.
The Appellant’s Counsel had argued before the lower Court that the Respondent, as applicant before the lower Court, had exhibited inordinate delay in lodging her suit for ancillary reliefs, and that the said delay had invalidated the action. The Respondent’s Counsel responded to these submissions. The learned trial Judge acknowledged the arguments in the judgment on appeal, pages 397 and 399 of the Record of Appeal. However, the learned trial Judge made no pronouncement on the issue.
A complaint that failure to pronounce upon an issue has impacted the party’s right to fair hearing is not one that is in the air. Fair hearing is not an abstract term. Fair hearing must be real and considered in the light of facts and circumstances of each case; Barigha v PDP (2012) LPELR-19712(SC), Olatunbosun v Annenih (2008) LPELR-8582(CA), Securities Solutions Ltd v. IGP & Anor (2021) LPELR-56042(CA) at page 27. The party complaining must demonstrate that his right to fair hearing has in actual fact been infringed upon by the failure to pronounce upon an issue. Failure of a trial Court to specifically pronounce on issues that are academic and not germane to the determination of the matter in controversy, does not amount to a denial of fair hearing. Where a real miscarriage of justice has not been established, the judgment shall not be declared a nullity; Savannah Bank of Nig Ltd v Starite Industries Overseas Corporation (2009) LPELR-3020(SC).
In arguing the issue that the Respondent had exhibited inordinate delay in lodging her suit for ancillary reliefs, which invalidated the action, the Appellant’s Counsel did not cite any authority in support. However, as rightly submitted by Counsel for the Respondent, competence of an action is dependent on whether it was brought by due process of law, before an appropriate Court and by a person who is entitled to bring such an action. A suit is competent to be adjudicated upon by a Court of law when there is in existence, competent parties; that is a plaintiff and defendant, capable of being sued in a Court of law, and a cause of action. See Ayorinde v. Oni (2000) LPELR-684(SC), (2000) 2 NWLR (PT. 649) 348, Onuekwusi & Ors v. Registered Trustees of The Christ Methodist Zion Church (2011) LPELR-2702(SC), IBEDC Plc v. Landmark University (2021) LPELR-56123(CA), Usuah v. G.O.C. Nig Ltd & Ors (2012) LPELR-7913(CA).
The law is also trite that a Court of law is competent to hear and determine any suit filed before it when:
(a) it is properly constituted as regards numbers and qualifications of the members of the bench and no member is disqualified for one reason or the other;
(b) the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(c) the case comes before the Court initiated by the due process of law and upon the fulfillment of any condition precedent to the exercise of jurisdiction.
See Madukolu v. Nkemdilim (1962) 2 SCNLR 341 at 348 (1962) 1 All NLR (Pt. 4) 587 at 595, Petroleum (Special) Trust Fund v. Fidelity Bank & Ors (2021) LPELR-56625(SC) at pages 45-46, NNPC & Anor v. Orhiowasele & Ors (2013) LPELR-24710(SC), Abdulaziz & Ors v. Jingtex (Nig) Ltd (2017) LPELR-43090(CA).
Now, the contention of the Appellant was not hinged on the fact that the Respondent was not a competent party to bring the suit before the lower Court. The contention of the Appellant was not hinged on the fact that the lower Court was incompetent to hear the application of the Respondent. The argument that the Respondent exhibited inordinate delay in bringing the application for ancillary reliefs, six years after the dissolution of the marriage, connotes that there exists some feature in the case which would invalidate the action and would prevent the lower Court from exercising its jurisdiction over the same. Inordinate delay in this sense would imply a limitation to the exercise of the Respondent’s right of action, which has been swallowed by her delay in bringing the action. A suit is declared statute barred when it is filed beyond the time allowed by the law giving the right of action.
A statute of limitation removes the right of action, the right of enforcement, the right to judicial relief and leaves the party seeking to enforce that right with a bare and empty cause of action which he cannot enforce; Egbe v. Adefarasin (1987) LPELR-1032(SC), INEC v. Ogbadibo Local Govt & Ors (2015) LPELR-24839(SC).
The Respondent’s application was brought pursuant to Order XIV of the Matrimonial Causes Rules. These Rules do not provide for a limitation of time in bringing an application for ancillary reliefs. Neither does the Matrimonial Causes Act itself contains such a provision. As I have already noted, the Appellant’s Counsel did not refer the Court to any authority in support or to buttress his postulations. I do not see how such assertions can be made on a whim.
Therefore, although the learned trial Judge failed to pronounce upon the challenge as to the competence of the Respondent’s suit, the Appellant has failed to demonstrate that a miscarriage of justice was occasioned to him in consequence. Further, on the merit, the contention of the Appellant on the competence of the Respondent’s suit is not founded on law. The Respondent’s suit as submitted to the lower Court, was competent. Issue 1 is hereby resolved against the Appellant.
Issues 2 and 3
The Appellant argued issues 2 and 3 together. The Respondent’s suit before the lower Court was determined on affidavit evidence only. The Appellant contended that, in line with the position of the law, in the light of the copious affidavit evidence, which was largely contradictory, oral evidence ought to have been called by the learned trial Judge to resolve any of the material conflicts. Reliance was placed on the decisions in Falobi v. Falobi (1976) N.S.C.C. 576 at 581, Akinsete v. Akindutire (1966) 1 ALL NLR 147 at 148, Ahmed v. The Minister of Internal Affairs (2002) LPELR-10989 (CA), Ifekwu v. Mgbako (1990) LPELR-20105 (CA) to submit that the failure to call oral evidence to resolve copious material conflicts, in violation of settled principles of law, was wrong.
The Appellant’s Counsel highlighted portions of the affidavit evidence, which were in conflict to contend that the learned trial Judge had accepted the Respondent’s version of the position of things without calling oral evidence or resolving any of the conflicts at all, and without giving any consideration at all to the Appellant’s version. Counsel for the Appellant cited and relied on the decision in Olu-Ibukun v. Olu-Ibukun (1974) N. S. C. C. 91 at 94-95 to submit that the lower Court had the responsibility to call for oral evidence where affidavits are irreconcilably in conflict. Further cited and relied on were the decisions in Ojogbue v. Nnubia (1972) 6 S. C. 227, Arjay Ltd. v. Airline Management Support Ltd. (2000) LPELR-6787 (CA).
The Appellant’s Counsel further submitted that the unfairness and prejudice to which the Appellant was subjected in consequence of the improper procedure adopted by the lower Court was accentuated by the statement of the learned trial Judge that the absence of the Appellant in Court had deprived the Court of the opportunity to observe his demeanour. That there is little doubt that this weighed heavily in the mind of the learned trial Judge in giving judgment against the Appellant.
The Appellant was represented by counsel who took active part in the proceedings. A party is not bound to appear in Court to testify especially where he is represented by counsel, citing Ezeannah v. Atta (2004) ALL FWLR (Pt. 202) 1858 at 1879, Shobajo v. Ikotun (2003) FWLR (Pt. 172) 1751, Kor v. State (2001) FWLR (Pt. 76) 637 at 657.
Counsel recalled that the lower Court had discarded the suggestion from the Appellant’s Counsel that oral evidence should be called. Having foreclosed that possibility, there would be no opportunity for the learned trial Judge to observe the Appellant’s demeanour in the witness box. Further, that the learned trial Judge did not state or indicate in what way or manner the Appellant’s physical absence in Court had impeded or adversely affected the smooth conduct of the case.
It was the further contention of the Appellant that the lower Court did not evaluate the evidence and failed to give consideration to applicable principles of law. That the trial Court is under a primary duty to evaluate, assess and weigh the evidence. Fabunmi v. Agbe (1985) LPELR-1221 (SC), Mafimisebi v. Ehuwa (2007) LPELR-1812 (SC), Neka v. Kunini (2015) LPELR-26031 (CA). Appellant’s Counsel made further reference to the decision on appeal to submit that the learned trial Judge had made awards on the ancillary reliefs to the Respondent without consideration for settled principles of law. On principles that guide assessment of awards in matrimonial causes based on the provisions of Section 70 of the Matrimonial Causes Act, decisions in Menakaya v. Menakaya (1996) 9 NWLR (Pt. 472) 256, Akinboni v. Akinboni (2002) 5 NWLR (Pt. 761) 564, Amah v. Amah (2016) LPELR-41087 (CA), Nanna v. Nanna (2005) LPELR-7485 (CA) were cited and relied on. The Court was urged to resolve these issues in favour of the Appellant and to set aside the judgment of the lower Court.
For the Respondent, it was argued that only material conflicts in an affidavit will necessitate the calling of oral evidence to resolve the conflicts in the affidavit, citing Onwodi & Ors v. Ndife & Ors (2019) LPELR-48339(CA) at pages 21-22.
Further, that it was not in all cases where there are material conflicts in an affidavit that oral evidence must be called. That even when there are material conflicts in affidavit evidence, the Court can resolve the issue of the conflicts without calling for oral evidence where there are documents attached to the affidavit which the Court can effectively use to resolve the conflicts, relying on the case of Nwosu v. Imo State Environmental Sanitation Authority & Ors (1990) LPELR-2129(SC) at pages 32-33. That in view of the depositions and the exhibited documents, there was no necessity to call oral evidence, citing FBN Plc v. J.O. Imasuen and Sons Nig Ltd (2013) LPELR-20875(CA) at page 54. Further, that oral evidence will not be allowed to contradict the contents of documents, citing Owoeye v Oyinlola (2012) 15 NWLR (PT.1322) 84 at 93.
The Respondent’s Counsel was of the view that there were no material conflicts discernible in the affidavit evidence of the parties before the lower Court that required the calling of oral evidence. That the Appellant did not set out the particulars of the instances of the alleged material contradictions in the affidavits of the parties at the lower Court. The learned trial Judge had the duty to consider whether oral evidence should be called and this could only be done when particulars of material conflicts in an affidavit were pointed out to the Court.
It was argued that the judgment of the lower Court was properly evaluated by the Court. On what constitutes evaluation of evidence, reliance was placed onReynolds Construction Co. (Nig) Ltd v. Zenith Bank Plc & Anor (2019) LPELR-50367(CA) at pages 7-8. The Respondent, citing portions of the decision of the lower Court, submitted that evaluation of evidence was dependent on the particular facts of each case and the method adopted by the Court.
The Court was urged to resolve the issues against the Appellant.
Resolution
In her application for ancillary reliefs, the Respondent sought the following Orders from the lower Court:
1. AN ORDER that the property lying, being, situate and municipally known as 27, Babatunde Jose Street, Victoria Island, Lagos State (formerly known as 27 Festival Road, Victoria Island, Lagos State) being the residence of the Claimant is the matrimonial home of the Claimant and that it be given to the Claimant as part of the settlement of properties in Suit No. HAD/13HD/1998.
2. AN ORDER that the property lying, being situate and municipally known as 3, Aideyen Avenue GRA, Benin City, Edo State being the residence of the Respondent be given to the Respondent as part of the settlement of properties in the said Suit.
3. AN ORDER that the property lying, being and situate at Thomas Street, Maitama, Abuja used as pied-a terre by the Respondent be declared as joint property of both the Claimant and Respondent and that the same with its contents be sold and the proceeds share between the Claimant and the Respondent in such proportion as this Honourable Court may deem fit to order.
4. AN ORDER directing the Respondent to within seven (7) days of the ruling of this Honourable Court to pay to the Claimant the total sum of N7.2Million being the arrears of the monthly maintenance of the claimant in the sum of N100,000.00 (One Hundred Thousand Naira) and the arrears of the yearly allowance of the claimant in the sum of N600,000.00 (Six Hundred Thousand Naira) from November, 2006 – March, 2009 pursuant to this order of Hon. Justice Nicol-Clay in Suit No: HAD/13HD/1998 dated 27th, November, 2006.
5. AN ORDER for payment of a lump sum in the sum of N5billion to the Claimant as maintenance.
6. AND FOR SUCH FURTHER ORDER(S) as this Honourable Court may deem fit to make in the circumstances.
The Respondent’s Application was supported by a 49-paragraphed affidavit, pages 1-94 of the Record of Appeal. In response, the Appellant had filed a Counter-Affidavit of 38-paragraphs, pages 160-208 of the Record of Appeal. The Respondent filed a Reply Affidavit of 62-paragraphs, pages 209-299 of the Record of Appeal. The Appellant filed a Rejoinder of 25-paragraphs, pages 310-344 of the Record of Appeal. All the affidavits had various documents annexed as Exhibits.
On 10/12/2015, the Appellant’s Counsel sought indication from the learned trial Judge as to whether oral evidence would be called. The concern of the Appellant’s Counsel was expressed particularly in respect of the claims over No 27 Festival Road, Victoria Island, Lagos State, now known as No 27, Babatunde Jose Street, Victoria Island, Lagos State, and the property in the U.K., which the Respondent had asserted was jointly owned property. The Respondent’s Counsel was of the view that oral evidence would be unnecessary. The learned trial Judge, in agreement with the Respondent’s position, ruled that oral evidence would not be required, pages 308-309 of the Record of Appeal. The learned trial Judge proceeded to hear and determine the Respondent’s Application on affidavit evidence, making the following orders, pages 407 – 408 of the Record of Appeal:
1. An order that the property lying, being, situate and municipally known as 27, Babatunde Jose Street, Victoria Island, Lagos State (formerly known as 27 Festival Road, Victoria Island, Lagos State) being the residence of the Claimant is the matrimonial home of the Claimant and that it be given to the Claimant as part of the settlement of properties in Suit No, HAD/13HD/1998.
2. An order for the Respondent to pay the lump sum of Five Hundred Million (N500, 000,000) Naira as full and final payment to the Applicant as maintenance of the Respondent, MRS THERESA OMAWUMI IKIMI.
I took time to read through the copious affidavits of the parties and could not help but wonder how the learned trial Judge was able to navigate through the depositions. All the affidavits were firmly in contention with each other. Allegations were responded to with counter allegations. The heat oozing from the battlelines was practically palpable.
One of the central issues in contention was No 27, Babatunde Jose Street (formerly Festival Road) Victoria Island, Lagos, which the Respondent claimed should be given to her, and which the learned trial Judge did adjudge her to be entitled to. The Respondent deposed that it was their matrimonial home, which the Appellant not only abandoned and relocated to Benin, but also actively and deliberately destroyed or vandalized. The Respondent also deposed that the Appellant was a man of great means who correspondingly, enjoyed an opulent and luxurious lifestyle. She listed other properties that were alleged to belong to the Appellant.
The Appellant denied these assertions. He stated that No 27, Babatunde Jose Street, Victoria Island, Lagos State consisted of No 27A and No 27B, Babatunde Jose Street, Victoria Island, Lagos State. He gave the history leading to the acquisition of both portions of the property, annexing his document of title. He stated that he and his family had initially resided in No 27A but moved into 27B when its construction was completed. He deposed that the Respondent had unilaterally rented out No 27A, which he had intended to use as an office, without recourse to him. The Appellant offered to give No 27A to the Respondent, leaving the other portion being No 27B. All of the depositions were frontally denied by the Respondent.
I note that the learned trial Judge made no reference to the assertion of the Appellant that the said property was actually in twin form, and numbered No 27A and No 27B, as well as his depositions on how he acquired the two properties. That is to say, the fundamental question of whether there were two houses numbered No 27 A and 27B or whether there was only one property known as No 27 was not addressed by the trial Court.
The Respondent had claimed N5 billion as a lump sum as compensation from the Appellant, based on the wealth she attributed to him. The Appellant completely denied that he possessed the kind of wealth attributed to him by the Respondent, and also denied that he was living the kind of lifestyle attributed to him. He described himself as a 71-year-old retiree with a defunct professional practice and extremely limited income. He recounted how early in their marriage, the couple had taken the decision to pursue their professional and economic interests separately, and how the Respondent had personally accumulated wealth over the years. He listed a number of assets acquired by the Respondent. The Respondent similarly vehemently denied these assertions.
The learned trial Judge held, page 406 of the Record of Appeal:
“The Applicant has furnished the Court with myriad of evidence to show the station of life and lifestyle of the Respondent and to show that the Respondent in this matter is a man of means. I refer to Exhibits T.O.I 24-25. She further adduced to the fact of the standard of living she was accustomed to as the wife of the Respondent and the financial benefits she would have continued to enjoy in the matrimonial home but for the divorce.”
Exhibit T.O.I – 24, pages 279-282 of the Record of Appeal, was a Deed of Assignment evidencing the sale of a parcel of land by the Appellant to one Credible Fixtures Industries Ltd. in 2004 for N20 million. Exhibit T.O.I – 25, pages 284-289 of the Record of Appeal, was an alleged Valuation Report commissioned by the Respondent in respect of the Appellant’s property at Abuja in 2000. From the depositions of the Respondent, the parties had been separated since 1994 and their marriage formally resolved by a divorce petition commenced 1998 and determined in 2009. In other words, both Exhibits T.O.I 24-25 were dated after the marriage had broken down.
There was no oral evidence allowed by the learned trial Judge. As a result, the Appellant was not heard on the allegations. There was no opportunity given, particularly for the Valuation Report, Exhibit T.O.I – 25 commissioned by the Respondent, to be tested under cross-examination. Yet, the learned trial Judge relied on these exhibits as evidence to establish the alleged wealth and lifestyle of the Appellant, as well as his ability to pay the lump sum of N500 million awarded in favour of the Respondent.
Whether the Respondent had actually abandoned a lucrative legal practice to become, largely, a housewife, which ought to affect the quantum of the ancillary reliefs awarded to her, or she still maintained her legal practice, which was highly successful, as was alleged by the Appellant, was in issue. This point was also not addressed by the trial Court.
The learned trial Judge observed, page 407 of the Record of Appeal:
“The conduct of the parties may not be an issue at this stage, but the Court is not oblivious of the fact that the Respondent, CHIEF TOM IKIMI has consistently absented himself from the proceedings of this Honourable Court. Not once has he found it worthy to register his presence in this Court. Counsel on his part has not done enough job of emphasizing to his client the importance of Court attendance and so that the Court can observe the Claimant and the Respondent. Parties must ensure they attend Court sittings to avail the Court the opportunity to observe the demeanour of the parties.”
I must confess that I find this observation made by the learned trial Judge very strange in the circumstance of this case.
‘Demeanor’ in the Ninth Edition of the Black’s Law Dictionary, page 496, is defined as:
“Outward appearance or behavior, such as facial expressions, tone of voice, gestures, and the hesitation or readiness to answer questions. In evaluating credibility.”
‘Demeanor evidence’ is further defined at page 636 thereof as:
“The behavior and appearance of a witness on the witness stand…”
The appraisal of oral evidence and ascription of probative value are the primary responsibility of a trial Court; Egharevba v. FRN & Ors (2016) LPELR-40045(SC), Gbadamosi v. Dairo (2007) LPELR-1315(SC). The trial Judge evaluates the evidence of witnesses after having seen their demeanor and heard them. Where credibility of a witness is in issue, the person who is in the vantage position to decide it will be the one who heard evidence on both sides and watched the demeanor of the witnesses. Nwiko v. State (2022) LPELR-57747(SC); Muyideen v. NBA & Anor (2021) LPELR-55885(SC), Obi v. Uzoewulu (2021) LPELR-53063(SC), Busari v. State (2015) LPELR-24279(SC).
In Ukeje & Anor v Ukeje (2014) LPELR-22724(SC) at pages 29-30, the Supreme Court, per Rhodes-Vivour, JSC described the function of observing the demeanor of a witness in proceedings thus:
“A trial judge is expected to watch the demeanour of the witness, to see how readily he answers questions. Whether he gesticulates. His reaction when confronted with evidence, be it documentary which suggest that his testimony is untrue. It is only after the above that the judge can attach weight to the evidence of a witness.”
Therefore, the demeanor of a party becomes relevant for consideration by the trial Judge only when that party is a witness, and is testifying in the witness box.
Secondly, it is quite pedestrian that, when a party to a proceeding engages the services of a counsel, he has the discretion to appear in person along with his chosen legal practitioner, or he may be represented by the legal practitioner alone. Such a party cannot be held to be absent in Court if his counsel or other permitted representative is present in Court. Kehinde v. Ogunbunmi & Ors (1967) LPELR-25374(SC), Agbana v. Owa & Ors (2004) LPELR-233(SC), VAB Petroleum Inc v. Momah (2013) LPELR-19770(SC), Uwagba v. FRN (2009) LPELR-3443(SC); Duru v. FRN (2013) LPELR-19930(SC), Western Publishing Co. Ltd & Anor v. Fayemi (2015) LPELR-24735(CA), Njoemana v. Ugboma & Anor (2014) LPELR-22494(CA). This is more so when the suit is being heard on affidavit evidence alone.
The learned trial Judge had ruled that there was no requirement for oral evidence, see pages 308 – 309 of the Record of Appeal. In the absence of oral evidence, how could the demeanor of the Appellant, who was not present but who was represented by Counsel become an issue that should weigh in the mind of the Court? I agree with the Appellant’s Counsel that the observation by the lower Court was not fair in the circumstance.
The copious affidavit evidence of the parties, including the documentary evidence, was definitely in riotous conflict. I think there are legion judicial pronouncements establishing that, in a matter that is to be determined by affidavit evidence, where the facts deposed to by the parties in their respective affidavits and counter affidavits are irreconcilably in conflict on material facts, in order to resolve such conflicts, the Judge ought to invite the parties thereto to call oral evidence. See Uku & Ors v. Okumagba & Ors (1974) LPELR-3350(SC), Falobi v Falobi (1976) LPELR-1236(SC), Olu-Ibukun & Anor v. Olu-Ibukun (1974) LPELR-2606(SC), Nwosu v. Imo State Environmental Sanitation Authority & Ors (supra), (1990) LPELR-2129(SC), Arjay Ltd. & Ors v. A.M.S. Ltd (2003) LPELR-555(SC), Jaiyesimi & Anor v. Darlington (2022) LPELR-57344(SC), Atungwu & Anor v. Ochekwu (2013) LPELR-20935(SC), Mabamije v. Otto (2016) LPELR-26058(SC), Momah v. VAB Petroleum Inc (2000) LPELR-1905(SC).
The law is also well settled that where the material irreconcilable conflicts in affidavit evidence may be resolved by authentic documentary evidence annexed to one of the affidavits, and which support one of the affidavits in conflict with another, oral evidence would be unnecessary; Sanusi Bros (Nig) Ltd v. Cotia Commercio Exportacao E Importacao S.A. (2000) LPELR-3006(SC), Nagogo v. CPC & Ors (2012) LPELR-15521(SC), Eimskip Ltd v. Exquisite Industries (Nig) Ltd (2003) LPELR-1058(SC), Babalola & Anor v. Emerging Markets Telecommunication Services & Ors (2021) LPELR-55974(CA). However, when conflicts on material facts in the affidavits cannot be resolved in this manner, oral evidence would be resorted to in order to resolve the conflict.
The fundamental consideration is that the conflicts in the affidavit evidence have to be material to the substance of the dispute, and not just trivial or peripheral. Where such material conflict exists, whether the parties so request or not, it is incumbent on the Court faced with such a situation to advise the parties to give oral evidence to resolve the conflict. Military Administrator, Federal Housing Authority & Anor v. Aro (1991) LPELR-3185(SC), Jaiyesimi & Anor v. Darlington (supra).
Such oral evidence passed through cross-examination, would enable the Judge to test the veracity of the affidavit evidence and thereby resolve any conflicts. Without a resolution of the conflict, the trial Judge is not entitled to pick and choose which affidavit evidence to accept and act upon. FBN Plc v. May Medical Clinics & Diagnostic Centre Ltd & Anor (2001) LPELR-1282(SC), Ezechukwu & Anor v. Onwuka (2016) LPELR-26055(SC). These are well settled propositions of law.
The learned trial Judge in the instant appeal, however, without permitting oral evidence to establish or controvert the assertions of the respective parties, appeared to tilt toward the case as presented by the Respondent, without giving full consideration to the position of the Appellant. I agree with the Appellant’s Counsel that, in this circumstance, the Appellant cannot be said to have been accorded a fair hearing.
Fair hearing is a substantive constitutional right, which entails both fairness of the hearing and of the decision. Fair hearing implies that what is right and fair to all concerned has been done and is seen to be so. The true test of a fair hearing is the impression of a reasonable person who was present at the trial, whether, from his observation, justice had been done in the case. Baba v. Nigerian Civil Aviation Training Centre & Anor (1991) LPELR-692(SC), Arije v. Arije & Ors (2018) LPELR-44193(SC), The Divisional Police Officer, “C” Div North Bank Makurdi & Ors v. Shikaan & Anor (2020) LPELR-50361(CA).
Fair hearing does not only mean a hearing that involves oral representation. Baba v. Nigerian Civil Aviation Training Centre & Anor (1991) LPELR-692(SC), Olatunbosun v. Niser Council (1988) LPELR-2574(SC), Duke v. Government of Cross River State & Ors (2013) LPELR-19887(SC), Ugba & Ors v. Suswam & Ors (2012) LPELR-9726(SC). In the instant case there was violently conflicting affidavit evidence, and no opportunity given for oral evidence that would enable the conflicting affidavit evidence be tested on the crucible of cross-examination. Where a trial Court rules on conflicting affidavits alone, without hearing the parties on the conflicts, thereby downplaying the said conflicts, injustice would be the result; Uku v Okumagba (supra). In the instant case, for the lower Court to prefer the affidavit evidence of the Respondent, notwithstanding the conflicts with the affidavit evidence of the Appellant, and without the benefit of oral evidence, occasioned a miscarriage of justice to the Appellant.
Further, for the trial Court to make negative observations on the demeanor of the Appellant, who did not appear before the Court and, who never entered the witness box, as the learned trial Judge had ruled against the need for oral evidence, did not convey the impression that the Appellant had been accorded a fair hearing by the lower Court.
The effect of a denial of fair hearing is trite in law. Once there is a breach of the right of fair hearing, the whole proceeding in the course of which the breach occurred and the decision arrived at by the Court, become a nullity and liable to be set aside. Umeano & Ors v. Anaekwe & Anor (2022) LPELR-56855(SC), Waziri v. Legal Practitioners Disciplinary Committee & Anor (2021) LPELR-55595(SC), Mfa & Anor v. Inongha (2014) LPELR-22010(SC), Dingyadi & Anor v. INEC & Ors (2010) LPELR-40142(SC), Dangote Flour Mills Plc v. Samagada Industries Ltd (2019) LPELR-48084(CA).
It follows therefore that once an Appellate Court finds, as in this case, that there has been a breach of the right of fair hearing in the proceeding in issue, it must allow the appeal having no other alternative in the matter. Chitra Knitting & Weaving Manufacturing Co. Ltd v. Akingbade (2016) LPELR-40437(SC); Ovunwo & Anor v. Woko & Ors (2011) LPELR-2841(SC). Issues 2 and 3 are therefore resolved in favour of the Appellant and against the Respondent.
In the light of the foregoing resolutions, no useful purpose can be served by a consideration of issue 4, as the decision of the lower Court leading to this appeal has been adjudged a nullity.
This appeal is meritorious and therefore succeeds. The Appellant had sought the reliefs:
“An order reversing and setting aside the decision of the lower Court and entering in its stead, an order dismissing the Claimant’s suit.
ALTERNATIVELY
An order setting aside the judgment of the lower (sic) and setting the suit down for trial de novo before another judge of the High Court of Lagos State.”
The instant suit, being a claim for ancillary reliefs by the Respondent, it is my considered opinion that the alternative relief sought would meet the justice of the case.
It is therefore ordered that the decision of the lower Court in Suit No. ID/410MJ/2015 delivered on 3/11/2016 is hereby set aside. It is further ordered that the case be remitted back to the Hon. Chief Judge of Lagos State for re-assignment of the suit for hearing de novo before another Judge of the High Court of Lagos State.
Parties shall bear their costs.
OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in advance, the leading judgment delivered by my learned, brother Onyekachi Aja Otisi, JCA. I endorse in toto the legal reasoning and conclusion in it. I, too, allow the appeal in the manner decreed in the leading judgment. I abide by the consequential order, re-assignment of the suit to another judge for trial de novo, contained therein.
PETER OYINKENIMIEMI AFFEN, J.C.A.: The lower Court’s failure or neglect to reconcile affidavits that were violently in conflict on issues that formed the kernel of the dispute between the parties constitutes an egregious infraction of the Appellant’s right to fair hearing, which is a primordial procedural right enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999.
Fair hearing before a fair Tribunal is the first test of due process, and must be scrupulously observed whenever a person’s legal rights and obligations fall for determination in a Court of law, which is also a Court of equity. See OLANIYAN v UNIVERSITY OF LAGOS [1985] 2 NWLR (PT 9) 599. A fair hearing must be a hearing that does not contravene the principles of natural justice: DEDUWA v OKORODUDU (1976) 1 NMLR 236 at 246. It is one of the essential cornerstones of adjudication by judicial process: AMADI v THOMAS APLIN CO. LTD (1972) 4 SC 228. Indeed, fair hearing before a fair Tribunal is the first test of due process and any proceeding plagued by want of fair hearing is liable to be set aside for being a nullity. See OYEYEMI v COMMISSIONER FOR LOCAL GOVERNMENT, KWARA STATE & ORS (1992] 2 NWLR (PT. 226) 661 at 685 -per Nnaemeka-Agu JSC, VICTINO FIXED ODDS LTD v JOSEPH OJO & ORS (2010) SCM 127 at 135 – 136 and BAMIGBOYE v UNIVERSITY OF ILORIN [1999] 10 NWLR (PT. 622) 290.
I accordingly record my concurrence with the leading judgment and join forces with my learned brother in setting aside the judgment entered on 3/11/16 in Suit No. ID/410M/2015 for the nullity it is. I equally abide by the consequential orders set out in the leading judgment.
Appearances:
Dotun Oduwobi, Esq. For Appellant(s)
S. A. Oshodi, Esq. with him, O.E. Adeosun, Esq. For Respondent(s)
