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MAGEGE & ANOR v. ANTHONY & ORS (2022)

MAGEGE & ANOR v. ANTHONY & ORS

(2022)LCN/17050(CA)

In The Court Of Appeal

(ASABA JUDICIAL DIVISION)

On Wednesday, May 11, 2022

CA/AS/394/2019

Before Our Lordships:

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Joseph Eyo Ekanem Justice of the Court of Appeal

Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal

Between

1. ENGR. BLESSING MAGEGE 2. CHIEF PA. J. O. O. MAGEGE (For Themselves And On Behalf Of The Onovayen Family Of Aladja) APPELANT(S)

And

1. MR. NOKERE ANTHONY 2. MR. KUMAKPENE FELIX (For Themselves And On Behalf Of The Otobozi Family Of Aladja) 3. MR. JOHNSON EMU-JEKAROHWO (Substituted For PA. JOHN GERHENE Emu-Jekarohwo By Order Of Court Of 3rd November, 2016) 4. MR. OMIMI EMU-JEKROHWO (Substituted For Pa. Emmanuel Umukoro Emu-Jekarohwo By Order Of Court Of 3rd November, 2016) (For Themselves And On Behalf Of The Emu-Jekarohwo Family Of Aladja) 5. MR. SAMUEL EWHRE 6. MR. JOSEPH OMAREJIVWIE (For Themselves And On Behalf Of The Akpeve Family Of Aladja) 7. MR. BOURDILLON OYIBO 8. MR. SUNDAY DJEBRE (For Themselves And On Behalf Of The Gbonu Family Of Aladja) 9. MR. NEUDOR TUMA 10. MR. AYA CHRISTOPHER (For Themselves And On Behalf Of The Akren Family Of Aladja) 11. BARR. EMMANUEL PIPPA RESPONDENT(S)

 

RATIO

THE POSITION OF LAW ON A GROUND OF APPEAL

A ground of appeal is the reason why a decision is considered to be wrong by the aggrieved party. A ground of appeal must therefore flow or arise from the decision appealed against. Where this is not the case, the ground of appeal must be struck out for being incompetent. See Anyaoha v. Obioha (2014) 6 NWLR (Pt. 1404) 445, 468, Wassah v. Kara (2015) 4 NWLR (Pt. 1449) 374, 392 and Okechukwu v. Obiano (2020) 8 NWLR (Pt. 1726) 276, 298 and 300. When an appeal is expressed to be against the decision of a Court given on a particular date, the only grounds of appeal that can be validly filed or raised in that notice of appeal are those grounds attacking the decision of that date. See Ayalogu v. Agu (1998) 1 NWLR (Pt. 532) 129, 141 and Akpunonu v. Beakart Overseas (2000) NWLR (Pt. 682) 553, 560 or (2000) LPELR – 390 (SC) page 9. PER EKANEM, J.C.A.

THE FUNDAMENTAL RIGHT TO FAIR HEARING

Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, guarantees the right to fair hearing for every person by a Court of law or Tribunal in the determination of his civil rights and obligations. Fair hearing lies not in the correctness or propriety of a decision but rather in the procedure followed in the trial and determination of a case. It means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties’ cause. A breach of a party’s right to fair hearing renders the proceedings or any judgment or decision flowing therefrom a nullity. See Ariori v. Elemo (1983) 1 SC 13, 24 FBN v. TSA Industries Limited supra, Dingyadi v. INEC (2010) 18 NWLR (Pt. 1224) 1, 52 – 53, Ukachukwu v. PDP (2014) 17 NWLR (Pt. 1435) 134, 163 and Ukwuyok v. Ogbolu ​(2019) 15 NWLR (Pt. 1695) 308, 325.
The test of 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. See Mohammed v. Kano N. A. (1968) All NLR 411, 413 and Pan African International Inc. v. Shoreline Lifeboats (2010) 6 NWLR (Pt. 1189) 98, 110.
PER EKANEM, J.C.A.

WHETHER OR NOT THE COURT IS UNDER OBLIGATION TO ENTERTAIN ANY APPLICATION BROUGHT BEFORE IT

A Court is generally under an obligation to entertain or hear and decide on the merit any application brought before it by any party notwithstanding the perceived strength or weakness of such an application except possibly in proper cases in the exercise of its punitive jurisdiction against a contemnor of a Court order who is expected to purge himself of the contempt before he could be heard. See Dingyadi v. INEC supra. Even if the application is filed late, the Court should allow the applicant to move the same and thereafter deliver its ruling before proceeding. SeeFirst Discount Securities Ltd v. Adesoye Holdings Ltd (2013) 16 NWLR (Pt. 1381) 470,497. It is also the law that an application that is not moved or argued cannot be refused or granted and so where an application that is not moved or heard is determined one way or another by the Court, it amounts to denial of fair hearing. See Nya v. Edem (2005) 4 NWLR (Pt. 915) 345, 370 – 371 and Stirling Civil Engineering Nigeria v. Nwosu supra (also reported in (2008) 3 NWLR (Pt. 1074) 288). PER EKANEM, J.C.A.

JOSEPH EYO EKANEM, J.C.A. (Delivering the Leading Judgment): In the notice of appeal filed on 21st day of May, 2019, the appellants (as claimants) appealed against the ruling of the High Court of Delta State, sitting at Otor-Udu (the trial Court) and under the heading “Part of the ruling appealed against”, the appellants indicated that the part of the ruling appealed against is “the whole ruling/proceeding of the 9th day of May, 2019.” In the ruling of the said date, the trial Court dismissed the application filed on the 15th day of April, 2019 by the appellants for:
1. An order allowing the hearing/and or determination of the application, the costs earlier awarded with the condition that they be paid before the appellants can make any application in the suit having been paid.
2. An order vacating the order of foreclosure of the appellants from cross-examining seven witnesses of the respondents.
3. An order setting aside the testimony of the said seven witnesses
4. An order granting the appellants leave to re-open its case that had been closed.
​5. An order of Court granting the appellants leave to amend their further amended statement of claim, etc. and
6. Any further order.

After dismissing the application, the trial Court proceeded to admit a letter from the office of the Surveyor-General as an exhibit, the 5th – 11th respondents closed their defence and thereafter the trial Court adjourned for adoption (of final written addresses).

The facts of the case leading to this appeal as it relates to the issue that may be considered in the course of this judgment are that the appellants sued the respondents at the trial Court for declaratory, monetary and injunctive reliefs in respect of a parcel of land known as DSC Corner situate at Oviri Quarters of Aladja Town. The case proceeded to hearing at which the appellants called one witness. After his cross-examination, the case was adjourned for continuation. After series of applications were filed by the appellants and were struck out by the trial Court for one reason or the other, appellants’ counsel closed the case of the appellants and the case was adjourned for defence.

Meanwhile, appellants filed two motions on notice, one of which was for them to further amend their amended statement of claim, etc. and the other was for leave for the appellants to re-open their case. On 28th day of March, 2019 when the case came up at the trial Court, appellants’ counsel was absent though the 1st appellant was in Court. On the application of counsel for the respondents, the two motions were struck out with costs of N50, 000.00 to be paid to each set of respondents before any application was filed by the appellants. The trial Court proceeded to take the evidence of defence witnesses 1 to 7 and foreclosed the appellants (from cross-examination of the witnesses). The case of the 1st-9th respondents was closed on the same day and the matter was adjourned for further hearing.

On 15th day of April, 2019, the appellants filed the motion which was the subject of the ruling, the appeal against which is the subject of this judgment, for the reliefs which I have summarized above in this judgment.

In the appellants’ brief of argument settled by Mrs. Glory Austin-Nyekigbe, of counsel, one issue is distilled for the determination of the appeal, to wit;
“Whether the appellants were accorded fair hearing at the trial Court.”

In the 1st-4th respondents’ brief of argument settled by P. O. Onota, Esq., a single issue has been identified for the determination of the appeal, viz;
“Whether the appellants’ entitlement to fair hearing was violated on 9/5/2019 when the trial Court struck out their motion filed on 15/4/2019 with cost of N20,000.00 (Twenty Thousand Naira) against them and allowed the respondents to close their case.”

For the 5th-11th respondents, the following issues have been formulated by P. O. Efene, Esq., for the determination of the appeal:
“1. Whether the appellants have a valid notice of appeal before this Honourable Court.
2. Whether the appellants’ entitlement to fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) is absolute, open-ended and/or without restraint.”

5th – 11th respondents’ issue 1 does not arise from any of the grounds of appeal in the notice of appeal. Rather it is in the nature of a preliminary objection which has been formulated as an issue for determination. Not having arisen from any of the grounds of appeal and the said respondents not having filed a respondents’ notice or cross-appeal from which the issue is derived, the issue is incompetent and liable to be struck out. See Luna v. Commissioner of Police, Rivers State (2018) 11 NWLR (Pt. 1630) 269, 283. I therefore strike out issue 1 in the 5th – 11th respondents’ brief of argument.

It is pertinent to mention at this stage before proceeding any further that 1st – 4th respondents’ counsel incorporated a notice of preliminary objection in their brief of argument. Argument in respect thereof are at pages 9 – 17 of the said brief of argument. In sum, the basis for the preliminary objection is that:
a. The appeal is against an interlocutory ruling and the grounds are of mixed law and fact but the appellant did not obtain leave of Court to file the appeal.
b. Ground 2 does not arise from the ruling of the trial Court.

It was the reply of appellants’ counsel that the objection was misconceived because by the Constitution of Nigeria, 1999 (as amended) an appeal alleging breach of fair hearing lies as of right. He placed reliance on Section 241(1) (d) of said Constitution and Ngadi v. FRN (2018) LPELR – 43636 (SC).

Sections 241 and 242 (2) of the Constitution of Nigeria, 1999 (as amended) create two categories of appeals from the Federal High Court, High Court of a State, etc. to this Court, namely:
1. Appeal as of right as provided for in Section 241 (1) of the Constitution, and
2. Appeal with leave of Court as provided for in Section 242 (1) of the said Constitution.
Appeals falling under the first category do not require the leave of Court before they are filed by a party to the proceedings but are filed from the lower Court to the Court of Appeal as of right. Where an appeal falls into the second category, leave of either the lower Court or the Court of Appeal is required before it is filed. Where such leave is not sought for and obtained before it is filed, the appeal is incompetent and it robs the Court of jurisdiction to hear and determine the same. See Abdul v. CPC (2014) 1 NWLR (Pt. 1388) 299, 327, Jov v. Iyortyom (2014) 4 NWLR (Pt. 1420) 578, 609, Nzei v. University of Nigeria, Nsukka (2017) 6 NWLR (Pt. 1561) 300, 329 and Metuh v. FRN (2018) 10 NWLR (Pt. 1628) 399, 410.

To determine the purport of or complaint in a ground of appeal, a Court is required to consider both the ground itself and the particulars of the ground. See Briggs v. Chief Lands Officer (2005) 12 NWLR (Pt. 938) 59, 78 and 79, Ehinlanwo v. Oke (2008) 16 NWLR (Pt. 1113) 357, 389 and State v. Omoyele (2017) 1 NWLR (Pt. 1547) 341, 369. I shall therefore take the liberty of setting out hereunder the two grounds of appeal in the notice of appeal with their particulars:
“GROUND 1
The learned trial judge erred in law when without hearing the motion of claimants/appellants filed on 15/4/2019, struck out the said motion and went on to award cost of N20,000.00 (Twenty Thousand Naira) against the appellants.
PARTICULARS
I. The motion has its written address filed and the respondent had also filed their written address in reaction to the motion.
II. Counsel to the appellants/applicants was present in Court and was prepared and ready to move/adopt the process already filed.
III. By striking out the motion without a hearing and allowing the defendant witnesses to testify without being cross-examined by the appellants or their counsel amount to a violation of Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
GROUND 2
The learned trial judge erred in law in allowing the defendants to close their case without the claimants/applicants to properly close their case and to cross-examine the witnesses of the defendants/respondents.
PARTICULARS
I. No Court disallows a party from putting forward the latitude of its case.
II. The Court cannot assist any of the parties to do its case.
III. The Court cannot under any circumstance descend into the arena of conflict.

The complaints in the two grounds of appeal revolve around alleged breach or contravention of the fundamental right of the appellants to fair hearing guaranteed by Section 36 Cap. IV of the Constitution of the Federal Republic of Nigeria, 1999, as amended. Section 241 (1) (c) and (d) of the said Constitution provides that:
“(1) An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-
(c) Decisions in any civil or criminal proceedings on questions as to the interpretation or application of this Constitution;
(d) Decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be contravened in relation to any person.”​
Being that the complaints of the appellants relate to an alleged contravention of their fundamental right to fair hearing, the appeal is as of right and therefore they did not require leave to file the same no matter the nature of the grounds of appeal. Provisions in pari materia with the provisions above in respect of appeals to the Supreme Court are made in Section 233 (2) (b) and (c) of the Constitution. In the case of Ezenwaji v. University of Nigeria (UNN) (2017) 18 NWLR (Pt. 1598) 485, 501, the Supreme Court considered the said provisions in respect of an objection to some grounds of appeal before it. Eko, JSC, held that;
“As can be seen or observed from the six(6) grounds of appeal, earlier reproduced; grounds 1, 4, 5 and 6 are complaints involving questions about violation of the right to fair hearing guaranteed by Section 36 under Chapter iv of the 1999 Constitution. ​

Those questions come specifically under Section 233 (2) (c) of the Constitution, and generally under Section 233 (2) (b) Constitution, they require no leave of Court to be valid, a ground of appeal coming under Section 233 (2) (b) & (c) of the Constitution is one as of right, or in respect of which no leave is required.”
The foregoing statement of the law applies with equal force to appeals under Section 241 (1) (c) and (d) of the 1999 Constitution as in this instance. See Ngadi v. FRN (2018) LPELR – 43636 (CA) Pp 21 – 22 where Garba, JCA, as he then was, opined as follows:
“The issue of the right of a party to fair hearing in a case is so fundamental and crucial in the conduct of all judicial proceedings of a Court of law and the administration of justice generally because of its Constitutional guarantee and a substantive issue of law can be raised in an appeal against the final or interlocutory decision of a High Court sitting at first instance, as of right by dint of the provisions of Section 241 (a) and (b) of the Constitution (as altered)… So whether against an interlocutory or final decision of the High Court sitting at first instance, as in the present appeal, the appeal on the issue of the right of fair hearing can be raised as of right and does not require the leave of Court to be validly brought before the Court.”
See also South Atlantic Petroleum Limited v. Ministry of Petroleum Resources (2014) 4 NWLR (Pt. 1396) 24, 38 – 39.
In the light of what I have said so far, I hold that the appellants did not require leave of Court to file the appeal on the two grounds of appeal. This takes care of the first leg of the preliminary objection.

I shall proceed to treat the second leg of the preliminary objection, to wit; that ground 2 of the grounds of appeal does not arise from the ruling appealed against. I note that appellants’ counsel did not proffer any argument in respect of this leg of the preliminary objection. The implication is that he has conceded the point. Nevertheless, the Court is obliged to consider the merit of the point. See Enimikemi v. Sylva (2008) 8 NWLR (Pt. 1088) 207, 218 and Williams v. Ibejiako (2008) 15 NWLR (Pt. 1110) 367, 383.

A ground of appeal is the reason why a decision is considered to be wrong by the aggrieved party. A ground of appeal must therefore flow or arise from the decision appealed against. Where this is not the case, the ground of appeal must be struck out for being incompetent. See Anyaoha v. Obioha (2014) 6 NWLR (Pt. 1404) 445, 468, Wassah v. Kara (2015) 4 NWLR (Pt. 1449) 374, 392 and Okechukwu v. Obiano (2020) 8 NWLR (Pt. 1726) 276, 298 and 300. When an appeal is expressed to be against the decision of a Court given on a particular date, the only grounds of appeal that can be validly filed or raised in that notice of appeal are those grounds attacking the decision of that date. See Ayalogu v. Agu (1998) 1 NWLR (Pt. 532) 129, 141 and Akpunonu v. Beakart Overseas (2000) NWLR (Pt. 682) 553, 560 or (2000) LPELR – 390 (SC) page 9.

I stated at the commencement of this judgment that the notice of appeal states that the appeal is against the ruling/proceeding of the trial Court of 9th day of May, 2019. On account of its brevity and importance in this appeal, I shall take the liberty of quoting the ruling and proceedings of that date except the appearance of counsel for the parties. It is as follows:
“Mr. Ayoro has an application dated 15/4/2019.
Motion is opposed by all defendants
COURT – I agree that the application is brought mala fide. The application is dismiss with N 20,000.00 cost in favour of each set of defendant.
Mr. Efeneh say he wish to tender a letter from Surveyor-General Office.
Mr. Ayoro objects that the CTC was not pleaded.
COURT – The objection is unfounded. The office of the Surveyor-General letter of 22/8/11 is admitted as D3.
Mr. Efenah close defence
COURT –Case is adjourned to 11/7/19 for adoption.”

It seems to me that the complaint against the respondents being allowed to close their case without appellant properly closing their case and cross-examining the witnesses of the respondents, which is the subject of ground 2, is traceable to or arises from the proceedings of 9th day of May, 2019 which in part is the subject of the notice of appeal. The ground and issue 2 flowing from it are therefore competent. The second leg of the preliminary objection therefore fails.

On the whole, the preliminary objection fails and I accordingly overrule it.

I shall now return to the appeal.

The issues formulated by counsel for the parties including the surviving issue of counsel for the 5th – 11th respondents are in substance the same. They are focused on the alleged denial of the appellants’ right to fair hearing but it must be borne in mind that the appeal is against the ruling/proceedings of 9th day of May, 2019. It seems to me therefore that the formulation of the lone issue for determination by appellants’ counsel has expanded the field of conflict beyond the proceedings and ruling of that date to encompass the whole case and the proceedings and rulings of other dates 5th – 11th respondents’ surviving issue is couched in an abstract and academic manner without reference to the facts of the case. It is on account of the foregoing that I shall adopt the issue formulated by counsel for the 1st – 4th respondents but with slight modification for the sake of brevity and precision. So the issue for the determination of the appeal is:
“Was the appellants’ right to fair hearing violated on 9th day of May, 2019 when the trial Court dismissed their application and the respondents closed their defence?”

Appellants’ counsel referred to Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended and submitted that the right to fair hearing guaranteed therein inures in a litigant’s favour to put forward before a Court the whole latitude of his case. He posited that the decision of the trial Court dismissing the motion of the appellants without their moving the motion though their counsel was in Court, raises fundamental questions of procedural fairness and violation of (the right of) fair hearing. He placed reliance on FBN v. TSA Industries Limited (2010) ALL FWLR (Pt. 537) 303 and contended that a procedure adopted by a Court that does not afford a party the opportunity to properly present its case before the Court would amount to a violation of the right to fair hearing of such a party. It was his position that the order of the trial Court foreclosing the appellants without giving them the opportunity to cross-examine the witnesses of the respondents ran foul of the doctrine of fair hearing. Counsel emphasised that hearing and determination of all applications before a Court is an integral part of a litigant’s right to fair hearing and that appellants’ motion was not moved before the ruling of the trial Court on it. He therefore urged the Court to hold that the application was not dismissed on the merit.

Continuing, counsel argued that allowing the witnesses of the respondents to testify without being cross-examined by appellants’ counsel amounted to a violation of appellants’ right to fair hearing. He added that on the day the appellants were foreclosed from cross-examining the said witnesses, though their counsel was absent the 1st appellant was in Court and should have been given the opportunity to cross-examine the witnesses instead of being foreclosed. Citing the case of Stirling Civil Engineering v. Nwosu (2008) ALL FWLR (Pt. 413) 1399, counsel submitted that a Court lacks the competence to grant or refuse an application which has not been argued before it.

For the 1st – 4th respondents, it was argued by their counsel that the appellants were given fair hearing on the 9th day of May, 2019 to present their case in respect of their motion on notice before the learned trial judge agreed with the contention of respondents’ counsel that the motion was brought mala fide and dismissed the same. It was his submission that only the facts of a case can determine the applicability of the principle of fair hearing. He posited that where a party is given reasonable opportunity to be heard in the manner prescribed by the rules of Court, and he neglects to utilize it, he cannot thereafter be heard to complain of lack of fair hearing. Counsel then set out the procedural history of the matter at the trial Court and submitted that the 1st appellant was given the opportunity of cross-examining the witnesses of the respondents and that the parties were accorded fair hearing in respect of the motion.

He noted that the appellants are requiring the trial judge to record verbatim all that transpired in the proceedings/ruling of 9th May, 2019. It was his contention that there is no immutable style of writing of judgment/ruling.

Counsel for the 5th-11th respondents proffered substantially the same arguments as counsel for the 1st – 4th respondents. It is inexpedient and unnecessary to repeat the same except to record that he submitted that the appellants are not consistent in presenting their case and are not prepared to pursue the same diligently. He noted that appellants’ counsel voluntarily closed their case on the 7th day of March, 2019 and so they cannot be heard to bring an appeal to re-open their case. This, he posited, amounted to the appellants seeking to take another bite at the “apple”.

Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, guarantees the right to fair hearing for every person by a Court of law or Tribunal in the determination of his civil rights and obligations. Fair hearing lies not in the correctness or propriety of a decision but rather in the procedure followed in the trial and determination of a case. It means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties’ cause. A breach of a party’s right to fair hearing renders the proceedings or any judgment or decision flowing therefrom a nullity. See Ariori v. Elemo (1983) 1 SC 13, 24 FBN v. TSA Industries Limited supra, Dingyadi v. INEC (2010) 18 NWLR (Pt. 1224) 1, 52 – 53, Ukachukwu v. PDP (2014) 17 NWLR (Pt. 1435) 134, 163 and Ukwuyok v. Ogbolu ​(2019) 15 NWLR (Pt. 1695) 308, 325.
The test of 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. See Mohammed v. Kano N. A. (1968) All NLR 411, 413 and Pan African International Inc. v. Shoreline Lifeboats (2010) 6 NWLR (Pt. 1189) 98, 110.

A Court is generally under an obligation to entertain or hear and decide on the merit any application brought before it by any party notwithstanding the perceived strength or weakness of such an application except possibly in proper cases in the exercise of its punitive jurisdiction against a contemnor of a Court order who is expected to purge himself of the contempt before he could be heard. See Dingyadi v. INEC supra. Even if the application is filed late, the Court should allow the applicant to move the same and thereafter deliver its ruling before proceeding. See First Discount Securities Ltd v. Adesoye Holdings Ltd (2013) 16 NWLR (Pt. 1381) 470,497. It is also the law that an application that is not moved or argued cannot be refused or granted and so where an application that is not moved or heard is determined one way or another by the Court, it amounts to denial of fair hearing. See Nya v. Edem (2005) 4 NWLR (Pt. 915) 345, 370 – 371 and Stirling Civil Engineering Nigeria v. Nwosu supra (also reported in (2008) 3 NWLR (Pt. 1074) 288).

The pivotal question therefore is, was the motion that was filed on the 15th day of April, 2019, moved or argued by appellants’ counsel before it was dismissed by the trial Court? I have already set out the proceedings of the 9th day of May, 2019 in this judgment and I do need to set it out again. It must be noted that the parties to the application filed written addresses in support of and opposition to the motion in line with Order 39 Rule 5 of the High Court Of Delta State (Civil Procedure) Rules, 2009. The same Rules provide that at the hearing of an application both parties shall adopt their written addresses and may be allowed a maximum of twenty minutes to make oral argument in amplification of their written addresses.
​The record of the proceedings leading to the ruling is rather terse and not detailed. However, it must be stated that a judge is not enjoined to record every word that is said in Court by counsel or every detail of proceedings. He only needs to record all the salient and relevant proceedings necessary to lead to a just determination of a case (in this instance, the application). See Udoh v. State (2006) 15 NWLR (Pt. 1001) 179, 190. It is clear to me from the relevant record of proceedings that appellants’ counsel introduced his motion and the same was opposed by counsel on the opposite side. The learned trial judge thereafter agreed (with the opposing counsel) that the application was brought mala fide. If the motion had not been moved, how could counsel for the adverse parties have opposed the same and the learned trial judge have agreed with their position that the application was brought mala fide? It must be remembered that by Order 39 Rule 5 of the High Court of Delta State (Civil Procedure) Rules supra., it is not mandatory for parties or their counsel to be allowed to make oral argument in amplification of their written address.
​Section 168 (1) of the Evidence Act, 2011 provides that when any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. The hearing of and ruling on the motion by the learned trial judge were judicial acts and having been done in a manner that is substantially regular, it must be presumed that all the formal requisites for their validity were complied with and that includes the appellants’ counsel moving or arguing the same before it was dismissed. Since there is no evidence by the appellants to rebut the presumption, it stands firm and not rebutted. See Locknan v. State (1972) 5 SC 22 (also reported in (1972) LPELR – 1788 (SC) 6 – 7), Amala v. State (2004) LPELR – 453 (SC) 36 – 37 and Ugwu v. State (2013) LPELR – 20177 (SC). The conclusion that I reach therefore is that appellants’ counsel moved or argued his motion, adopting his written address and respondents’ counsel opposed the same in a similar manner before the learned trial judge ruled on it.

By way of footnote, the length of the ruling and its merit are not an issue in this appeal going by the grounds of appeal and so I will maintain a studied or philosophical silence on the same. All the arguments on the merit of the application and the decision of the learned trial judge in the application fall outside the scope of the appeal and I shall discountenance the same. The closure of the defence of 5th – 11th respondents followed naturally from the ruling and the said respondents’ counsel, Mr. Efenah informing the trial Court that he was closing their defence. Nothing else was left than for the trial Court to adjourn for address.

It was the contention of appellants’ counsel that allowing the respondents’ witnesses to testify without being cross-examined by appellants’ counsel amounted to a violation of appellants’ right to fair hearing and that since the appellants were in Court, they should have been given the opportunity to cross-examine. The proceedings during which the appellants were foreclosed from cross-examining respondents’ witnesses in the absence of their counsel occurred on the 28th day of March, 2019. See pages 460-462 of the record of appeal. But the appeal, the subject of this judgment is only in respect of the ruling and proceedings of the 9th day of May, 2019. Any argument on events that took place outside that date including the proceedings of 28th day of March, 2019 is nothing but a frolicsome adventure outside the scope of the appeal which cannot be entertained especially as this is not an appeal against the final judgment of the trial Court, which is yet to be delivered. This Court, it has been repeatedly said, is not a knight-errant that goes about looking for skirmishes and battles where none has been properly brought to it. It is confined to dealing with issues that are properly brought before it in an appeal. I therefore discountenance the argument in respect of the proceedings of the said date.

In the light of what I have said thus far, I enter a negative answer to the lone issue for determination and resolve it against the appellants.

The appeal has no merit and it therefore fails. I accordingly dismiss the same and affirm the decision of the trial Court.
The parties shall bear their costs.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read in advance, the judgment of my learned brother, JOSEPH EYO EKANEM, JCA. I agree with his reasoning and conclusion that the appeal has no merit. I too dismiss the appeal.

ABIMBOLA OSARUGUE OBASEKI –  ADEJUMO, J.C.A.: I have read in advance the judgment of my learned brother, JOSEPH EYO EKANEM, JCA.

I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother.

I too hold that the appeal lacks merits and is accordingly dismissed.

I abide by all consequential order (s) in the lead judgment.

 

Appearances:

IKHIDE EHIGHELUA, ESQ, with him, K. K. AKPUTE, ESQ, For Appellant(s)

U. E. OGBONNAYA, ESQ, for 1st – 4th respondents.

P. O. EFENA, ESQ, for 5th – 11th respondents For Respondent(s)