JOSEPHINE EMMANUEL UDOKA v. REV. EKERETE F. H. AKANGSON
(2018)LCN/11800(CA)
In The Court of Appeal of Nigeria
On Friday, the 29th day of June, 2018
CA/C/41M/2010
RATIO
TRIAL OF CASES MUST BE FAIR
Let me begin by saying that fair hearing involves the Public Policy that judicial proceedings shall not be allowed to fall below certain standards namely a standard that trial of cases must be fair. Therefore, it is an immutable demand of fairness that justice must be even handed. That demand is not subjective but objective. per CHIOMA EGONDU NWOSU-IHEME, J.C.A
FAIR TRIAL IS A FUNDAMENTAL ELEMENT IN THE ADMINISTRATION OF JUSTICE
Fair hearing therefore incorporates a trial done in accordance with the rules of natural justice. The duty of every Court whether in civil or criminal jurisdiction is to hold even balance between the contending parties to a dispute and nothing must be done to detract from that. This is a fundamental norm in the system of administration of justice we operate. That duty involves a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause. per CHIOMA EGONDU NWOSU-IHEME, J.C.A
THE POWER TO EXTEND TIME IS AT THE DISCRETION OF THE COURT
The matter of extension of time to do an act after the prescribed time to do the act by a party to a case is one within the discretion of the Court hearing such a matter. Therefore, where a Court has exercised its discretion judicially and judiciously, an appellate Court will not intervene. per CHIOMA EGONDU NWOSU-IHEME, J.C.A
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA, Justice of The Court of Appeal of Nigeria
CHIOMA EGONDU NWOSU-IHEME, Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH, Justice of The Court of Appeal of Nigeria
Between
JOSEPHINE EMMANUEL UDOKA – Appellant(s)
AND
REV. EKERETE F. H. AKANGSON – Respondent(s)
CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment):
The Respondent in this appeal as the Plaintiff at the Lower Court had commenced proceedings by writ of summons at the Ikot Ekpene Division of the High Court of Akwa Ibom State claiming the sum of N500,000.00 (Five Hundred Thousand Naira) as damages for trespass and an order of perpetual injunction against the Appellant as Defendant. The Respondent filed his statement of claim. Both the writ of summons and the statement of claim were duly served on the Appellant but he did not file any defence thereto.
The Appellant was given several opportunities to file his statement of defence by the Court below. On the 15th of May, 2007, the Court granted the Appellant extension of time to file his defence and plan (see pages 69-70). Appellant failed to file his defence as ordered. Again on the 27th of November, 2007, the Appellant filed another motion for extension of time to file his defence, it was again granted by the lower Court and awarded a cost of N1,500.00.
As if that wasnt enough, on the 4th of June, 2008 the same Appellant filed for the third time the same motion for extension of time, which was struck out on the 8th of July, 2008.
To make matters worse, on the 9th of October, 2008, this same Appellant filed yet another motion for extension of time to file a defence and plan. (See page 54 of the Record). This 4th application was dismissed on the 10th of October, 2008 (see pages 77-78 of the Record) for the fourth time.
The Court then proceeded to trial on the basis of the case presented by the Respondent at the end of which the lower Court in a considered judgment delivered on the 30/10/2008 found for the Respondent and awarded N30,000.00 as General Damages for trespass and perpetually restrained the Appellant from further trespass into the land in dispute.
Dissatisfied with that judgment, the Appellant has now appealed to this Court on grounds of deprivation of fair hearing.
Counsel for the Appellant, Samuel Ikpo Esq, distilled two issues for determination, thus:
(1) Whether the Learned Trial Judge was right in dismissing the motion for extension of time to file Statement of Defence and proceeded to deliver judgment without calling on the Appellants late husband to present his case thereby denying him fair hearing.
(2) Whether the Learned Trial Judge was right in delivering judgment when a Motion on Notice for transfer of the said case was pending before the Chief Judge of the State.
Counsel for the Respondent also distilled two similar issues even though couched differently thus:
(1) Whether considering the circumstances of the entire case, Appellants right to fair hearing was violated upon the dismissal of the Appellants 4th motion for extension of time to file defence.
(2) Whether or not the judgment delivered by the Learned Trial Judge was proper during the pendency of Appellants motion for transfer of case.
Taking the first issue, learned counsel for the Appellant, Samuel Ikpo Esq contended that the Appellant was denied fair hearing by the Learned Trial Judge in not granting Appellants application for extension of time to file his defence to the action and survey plan.
Furthermore, counsel argued that the Learned Trial Judge was in error when he proceeded to deliver judgment despite the pendency of a Motion on Notice for the transfer of the case pending before the Chief Judge of the state.
In his reply to the foregoing, counsel for the Respondent, Ekpedeme Iyoho Esq, in his brief, submitted that the Appellant was given fair hearing and ample opportunity to be heard. Referring to the Lower Courts survey of the history of the case and the Appellants conduct in the matter, learned counsel argued that the trial Judge adequately indulged the Appellant and created the proper atmosphere and environment for the fair hearing of the case as outlined in the principle of the decisions in CHIDOKA V. FIRST CITY FINANCE CO. LTD (2013) All FWLR (Pt. 659) P. 1025 at 1037 1038 and FEDERAL HOUSING AUTHORITY V. KALEJAIYE (2011) ALL FWLR (Pt. 562) P. 1633 at 1651.
If a party to a case, as in the instant case, he argued, chose to take the Machinery of justice for granted and embarked upon a wanton act of disregard to judicial process, inspite of the opportunities offered him to be heard, he cannot turn round to complain of want of fair hearing.
On the issue of a subsisting motion for transfer, counsel argued that the purported motion was neither brought to the attention of the Trial Judge nor the Chief Judge and was dated the 29/10/08 on the eve of the judgment which was fixed on the 30/10/08. Counsel posited that the Appellant had no intention of participating in the proceedings from the beginning as he was out to do what he described as hatchet job.
Let me begin by saying that fair hearing involves the Public Policy that judicial proceedings shall not be allowed to fall below certain standards namely a standard that trial of cases must be fair. Therefore, it is an immutable demand of fairness that justice must be even handed. That demand is not subjective but objective. See ARIORI V. ELEMO (1983) 2 NWLR (Pt. 76) P. 333 at 347.
Fair hearing therefore incorporates a trial done in accordance with the rules of natural justice. The duty of every Court whether in civil or criminal jurisdiction is to hold even balance between the contending parties to a dispute and nothing must be done to detract from that. This is a fundamental norm in the system of administration of justice we operate. That duty involves a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause. ATANO V. A.G. BENDEL STATE (1988) 2 NWLR (Pt. 75) 201 at 217.
Fair hearing includes an opportunity to be heard. So where a party to a case has been given an opportunity to present his case and he fails to do so or toys with that opportunity, he cannot turn round to complain of lack of fair hearing. As was observed by OPUTA JSC in ARIORI V. ELEMO supra at pages 341-343.
The question now is what does this right of fair hearing imply First and foremost, it implies (at least in civil cases) that both sides be given an opportunity to present their respective cases. It implies that each side be entitled to know what case is being made against it and be given an opportunity to reply.
What fair trial or fair hearing entails is to give each side opportunity to present its case.
To appreciate the foregoing principles of law on fair hearing in the determination of this first issue, one must understand the background and circumstances of the case leading to the judgment of the lower Court now on appeal.
As I said in the opening portion of this judgment, the Respondent had sued the Appellant at the lower Court in damages for trespass and an order or perpetual injunction. He filed his statement of claim which was served on the Appellant along the writ of summons. A chronicle of the facts as revealed in both the ruling of the Court on the motion for extension of time for the fourth time delivered on the 10/10/08 and the judgment delivered on the 30/10/2008 show that inspite of service on the Appellant of the writ of summons and the statement of claim, he ignored both the Court processes and indeed the Court as set out at page 77 of the Record of Appeal. The Appellant continued bringing applications for extension of time to file his defence and plan and each time the Court granted the application, he failed to file any defence in five years as observed by the Learned trial Judge in his Ruling on the 10/10/08 while dismissing the Appellants 4th application for extension of time to file his statement of defence and plan (see page 77 of the Record).
In this regard, it cannot be said that the Appellant was not given a fair hearing in relation to the motion for extension of time which application was granted several times by the Court, but the Appellant exhibited an uncommon display of gross nonchalance.
The matter of extension of time to do an act after the prescribed time to do the act by a party to a case is one within the discretion of the Court hearing such a matter. Therefore, where a Court has exercised its discretion judicially and judiciously, an appellate Court will not intervene. See ADEJUMO V. AYANTEGBE (1989) 3 NWLR (Pt. 110) 417 at 445.
I am therefore of the firm view that on the facts and circumstances of this matter, the Learned Trial Judge properly exercised his discretion in refusing the 4th application for extension of time. The first issue is resolved against the Appellant and in favour of the Respondent.
On the issue of the motion for transfer of the case sent to the Chief Judge of the State, it must be noted that the purported motion to transfer the case was made on the eve of the judgment which judgment was delivered on the 30/10/2008. It was therefore neither intended to reach the Chief Judge before the date of judgment nor the trial Judge.
It was therefore most mischievously made simply to shop for materials to use on appeal. It is a typical example of a party making not only a mockery of himself, but also making a mockery of the judicial process, and it must be condemned in very strong terms and I must say that this is despicable.
Besides, an application for the transfer of a case made on the eve of the judgment day cannot act as a stay of the judgment, as no Chief Judge would act upon such a ridiculous application.
The second issue is also resolved in favour of the Respondent and against the Appellant.
In the premise, both issues are resolved against the Appellant and in favour of the Respondent. This appeal is most unmeritorious and is hereby dismissed. The judgment of the Learned Trial Judge in suit No. HT/39/2003 delivered by Enefiok Udoh, J, of the Ikot Ekpene Division of the High Court of Akwa Ibom State on the 30th of October, 2008 is hereby affirmed.
I award Two Hundred Thousand Naira costs against the Appellant.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: Having had the privilege of reading the draft of the judgment just delivered by Nwosu-lheme. JCA. I cannot but concur with the reasoning therein, to the inevitable conclusion that the instant appeal is “most unmeritorious thus liable to be dismissed by this Court.
As aptly postulated by my learned brother at pages 9 10 of the draft, the motion for transfer of the case sent to the Chief Judge was:
A typical example of a party making not only a mockery of himself, but also making mockery of the judicial process. and it must be condemned In very strong terms and I must say that this is despicable.
At page 4 of the Appellants Amended Brief of Argument, its insinuated that the Appellants late husband was informed by one James Okon Udo that he had seen the Respondent at his church, Redeemed Christian Church of God, at lbiakpan, Ikot Ekpene on 19th October, 2008 thanking God for giving him justice in the suit and that on 30th October, 2008 the Court was going to deliver judgment in his favour.
It was further insinuated that.
The Appellants late husband further consulted his counsel, Aniedi Abohi, Esq., and narrated the events to him, whereupon his counsel informed him that such utterance of the Respondent was impugning the Courts integrity and this creates an inference of bias, loss of confidence and tends to pre-empt the Court which led to the filing of the motion on notice for transfer of the case by the Chief Judge to another High Court on the 28th day of October, 2008.
Instructively, bias in regard to a Court or tribunal is an inclination or predisposition to decide a matter in a certain pre-conceived way without consideration to any law or rules. Afortiori, the likelihood of bias may be drawn from a number of factors, namely corruption, partnership, personal hostility, friendship, syndicate membership or association, et al, towards or involving a particular party in the case. See AZUOKWU VS NWOKANMA [2005] LPELR- 690 {SC.
Where bias is insinuated against a Court or judge, it is not the real likelihood that the Court or judge could or did favour one party at the expense of the other that is important. It is that any person looking at what the Court or judge has done, would have the impression in the circumstances of the case, that there was indeed likelihood of bias.
See METROPOLITAN PROPERTIES COY. LTD. VS LANNON [1969] 1 QB 577; OLUE VS ENENWALI [1976] 2 SC 23; AZUOKWU VS NWOKANMA [supra) per Kalgo, JSC @ 13 14 paragraphs D G.
I would want to appreciate, that from the circumstances surrounding the case as a whole, as depicted by the records of appeal, there is no iota of evidence whatsoever from which bias or the likelihood thereof can be found or even inferred on the part of the Court below in the conduct of the instant case in favour of any of the respective parties therein. As aptly alluded to by my learned brother, the attitudinal disposition of the Appellant [apparently aided by the counsel thereof] in impugning the Courts integrity and thus creating an inference of bias, loss of confidence in the judicial process, is abhorrent, pagannistic, predatory, and inimical to the well-cherished democratic values and independence of the judiciary.
Hence, I have no hesitation whatsoever in wholeheartedly concurring with the reasoning reached by my learned brother in the said judgment, to the conclusive effect that the instant appeal is most unmeritorious, and same is equally hereby dismissed by me.
I abide by the costs of N200,000.00 [Two Hundred Thousand Naira awarded against the Appellant.
STEPHEN JONAH ADAH, J.C.A.: I was privileged to read the draft copy of the judgment just delivered by my learned brother, Chioma Egondu Nwosu-Iheme, JCA.
I am in complete agreement with the reasoning and the conclusion that this appeal is lacking in merit. I also dismiss this appeal and I abide by the consequential order made therein by my learned brother.
Appearances:
AbsentFor Appellant(s)
Ekpedeme lyoho Esq with him,
- N. Otubo Esq; Mark Tanbe Esq. and O. I. Ogiga Esq.For Respondent(s)
Appearances
AbsentFor Appellant
AND
Ekpedeme lyoho Esq with him,
- N. Otubo Esq; Mark Tanbe Esq. and O. I. Ogiga Esq.For Respondent
