MARGARET IFEKAUDU V. JOSEPH IBEAGWA
(2012)LCN/5433(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of June, 2012
CA/E/324/2006
RATIO
“Though it has earlier been indicated that this appeal will be determined on the issues formulated by the appellant, it is no longer necessary considering the success of issues two and four. This is so, because the circumstances under which a consideration of other issues may be dispensed with are (i) when order for retrial is considered desirable or (ii) where the judgment appealed against is declared a nullity, in which case there will be no need to pronounce on other issues flowing from the trial declared nullity and which could possibly arise at the retrial or fresh action. See Brawal Shipping (Nigeria) Limited v. Onwadike (2000) FWLR (Pt. 23) 1254 at 1271, Sanusi v. Amoyegun (1992) 4 NWLR (Pt. 237) 527 at 550 – 551, Shoshi v. Smith (2009) 18 NWLR (Pt. 1173) 330, Ebonyi State University v. Dr. Mary Eteng CA/E/314/09 of 11th May, 2012. ” Per JAURO, J.C.A.
“It is trite law, that it is the duty of a court to entertain and decide on the merit, any application brought before it by any party, notwithstanding the perceived strength or weakness of such an application. The application may be downright stupid or unmeritorious, but it must be heard. A refusal by a court to hear a motion is a breach of a right to fair hearing guaranteed under the Constitution. The refusal of the court to hear the appellant’s motion or make pronouncement on it in its judgment is a violation of the appellant’s right to fair hearing and has occasioned a miscarriage of justice. See Newswatch Communications Limited v. Atta (supra) at 168 170, Onyekwuluje v. Animashaun (1996) 3 NWLR (Pt 439) 637, Mobil Producing Nigeria Unlimited & Anor. v. Chief Simeon Monokpo & Ors. (2003) 12 SCNJ 206 at 215, Nalsa & Team Associates v. N.N.P.C. (1991) 8 NWLR (Pt. 212) 652, Otapo v. Sunmonu (1957) 2 NWLR (Pt. 58) 587, Afro Continental (Nigeria) Limited & Anor. v. Co-operation Association of Professionals Incorporation (2003) 1 SCNJ 530 at 531.” Per JAURO, J.C.A.
“It is trite law, and plethora of authorities have established that to be accorded fair hearing in any trial, a party must: (i) be entitled to a counsel of his choice; (ii) be afforded the opportunity to call all necessary witnesses in support of his case; (iii) have the opportunity of cross examining or challenging the evidence of witnesses called by his adversary; (iv) have the same right as his adversary through his counsel to address the court on the law in support of his case. Applying the above principles to the instant case, the appellant was not accorded fair hearing at all. See Kwashi v. Pusmut (2010) 1 NWLR (Pt.1176) 518 at 531.” Per JAURO, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
Between
MARGARET IFEKAUDU Appellant(s)
AND
JOSEPH IBEAGWA Respondent(s)
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Anambra State, holden at Onitsha delivered on 30th day of May, 2006 by Hon. Justice Vin Agbatain suit number 0/839/99.
The facts of the case giving rise to this appeal can be compressed as follows: The plaintiff now respondent and the defendant now appellant, have been husband and wife. In the course of time, disagreements and domestic quarrels erupted between them resulting in the defendant vacating the matrimonial home. Both the plaintiff and the defendant claimed ownership to a market stall known as No. Q1/16 GE, Lagos Line, Onitsha main market. As a consequence of the foregoing, the plaintiff instituted an action against the defendant, claiming the following reliefs:
“(a) A declaration that the plaintiff is the lawful allotte of stall No. Q1/16 GE Lagos Line Main Market, Onitsha.
(b) An order of injunction restraining the defendant, her agents, privies and ‘strong men’ from interfering with the plaintiff’s possessory right in and over stall No. Q1/16 GE Lagos Line, Main Market, Onitsha.
See page 7 of the record of appeal.
Pleadings were filed and exchanged and the case proceeded to trial. The plaintiff testified as PW1 on 7th April, 2005 and tendered exhibits A, B, C – C7, D. Mr. Okosieme Ifechukwudelu testified as PW2 on 20th April, 2005, thereafter the plaintiff’s case was closed.
After about three adjournments, the defendant opened her defence on 24th November, 2005. On the same date, one Lawrence Azubuike Uzoechina, litigation officer of Onitsha North L.G.A. started giving evidence as DW1 and tendered a subpoena as exhibit D1. In the course of his evidence, the court adjourned proceedings to 7/2/06, 8/2/06, 28/2/06, 1/3/06 and, 2/3/06 for continuation of evidence. See page 157 of the record of appeal.
After about four adjournments namely on 7/2/06, 8/2/06, 28/2/06 and 3/4/06, the case eventually came up on 12/4/06 and the proceedings of the court for 12/4/06 are hereby reproduced:
“HOLDEN AT ONITSHA
BEFORE HIS LORDSHIP HON. JUSTICE VIN. NWABUEZE
AGBATA
ON WEDNESDAY THE I2TH DAY OF APRIL, 2006.
0/839/99
“Parties – Present
A.G. Okoye for the plaintiff.
The defence counsel is absent in court. The defendant says she cannot proceed with the matter in the absence of this court (sic).
Court: In pursuant to section 9(3) of the Practice Direction No. 1 of the High Court of Anambra State, the defendant’s case is hereby closed.
The defendant shall have 7 days within which to file a written address and upon service of same on him, the plaintiff shall also have 7 days within which to file his own written address.
Suit is adjourned to 8/5/06 for adoption of written addresses of counsel.
Sgd.
Vin. N. Agbata
Judge
12/4/06.”
See pages 159 to 160 of the record of appeal.
As a consequence of the above, the defence by a motion on notice dated 24/4/06 and filed 25/4/06, prayed for the setting aside of the above reproduced proceedings of 12/4/06 and an order recalling DW1 to complete his evidence. The motion was heard on 8/5/06 and dismissed and the case adjourned for judgment. In the interim however, an application for stay of proceedings dated 23rd May, 2006 was filed on 25th May, 2006. See page 139 of the record.
The application for stay of proceedings was however not heard and the court delivered its judgment on 30th May, 2006 in favour of the plaintiff the concluding part of which reads thus:
“It follows, therefore that since the testimony of the only witness for the defendant was not subject to any form of cross-examination, by the design of the defendant herself, I cannot attach any probative value to such testimony.
Consequently, the testimonies of the plaintiff and his witness go one way, without anything to weigh against it in the imaginary scale of the balance. The unambiguous outcome, therefore, is that the plaintiff has succeeded in his claim before the court. The plaintiff is, therefore, the lawful allottee of the aforesaid Stall No. Q1/16 GE Lagos Line of the Main Market of Onitsha. The defendant, her agents, servants, and/or privies are, therefore, hereby restrained from further interfering with the plaintiff’s rights of possession over same. Cost of N15,000.00 is hereby awarded against the defendant in favour of the plaintiff.”
See page 163 of the record of appeal.
Distressed by the aforementioned decision, the defendant challenged same by a notice of appeal dated and filed on 6th June, 2006. The notice of appeal is predicated upon five grounds of appeal. In strict compliance with the Rules of Court, briefs of argument were filed and exchanged. The appellant’s brief of argument dated 10th January, 2008 and filed on 10th April, 2008, was deemed properly filed pursuant to an order of court made on 8th April, 2008. The appellant’s reply brief is dated 10th March, 2011 and filed on 17th March, 2011. The respondent’s brief of argument dated 25th May, 2009 and filed on 26th May, 2009 but regularised pursuant to an order of court made on 8th March, 2011. Mr. J.O.N. Ikeyi leading Emeka Abah Esq. and M.I. Nwangbo Esq. for the appellant, adopted and relied on the appellant’s brief and the reply brief in urging the court to allow the appeal. Mrs. Emilia Enemuoh leading C.A. Elechukwu Esq., for the respondent, adopted the respondent’s brief in urging the court to dismiss the appeal.
The appellant distilled four issues for determination on pages 2 and 3 of the appellant’s brief as follows:
“1. Whether the learned trial judge was right in giving judgment for the respondent on the strength of the case put forward by him before the court.
2. Whether the trial judge was right in proceeding to deliver a final judgment in the case when there was a pending Motion on Notice before him and the Court of Appeal, respectively.
3. Whether the learned trial judge was right to have entertained the suit as being competent when the parties are married under the statute, in view of the facts of the case.
4. Whether a miscarriage of justice was not occasioned against the appellant by the trial judge’s discretionary closure of the appellant’s defence and refusal to grant the appellant’s application to continue with her defence on a later date.
The respondent on the other hand, submitted two issues for determination on page 5 of the respondent’s brief, namely:
“(1) Whether the evidence led by the Respondent/Plaintiff was sufficient to grant the relief claimed by the Respondent/Plaintiff (grounds 1 and 2 of the Notice of Appeal).
(2) Whether the Appellant’s right to fair hearing was breached in the above suit. (Grounds 3, 4 and 5 of the Notice of Appeal).”
The respondent’s two issues for determination are a merger of the appellant’s four issues for determination. The appellant’s four issues for determination appear to be all encompassing and comprehensive, hence the appeal will be considered along the said issues.
The respondent in his brief of argument, raised a preliminary objection, and I deem it necessary at this point to say a word or two on the preliminary objection, before a delving into the issues raised.
The preliminary objection challenged the competence of particulars 3 and 4 of ground one of the grounds of appeal and arguments canvassed in relation to admissibility of exhibits A, B and C. On the date the appeal was argued, the learned counsel for the respondent failed to say anything about the preliminary objection or argue same, before the hearing of the appeal. It is trite law that a preliminary objection must be argued before the hearing of an appeal. This is so because a preliminary objection has a terminal effect, once it succeeds it will no longer be necessary for the appellate court to consider the issue or issues distilled from the incompetent grounds. Where the preliminary objection is not moved immediately before the hearing of the appeal, it is effectively deemed abandoned. In the instant case, it was never moved before the hearing of the appeal and not even a mention of it was made on the date of hearing the appeal, hence it is deemed abandoned. See Oforkire v. Maduike (2003) 1 SCNJ 440, (2003) 5 NWLR (Pt. 812) 166, Tiza v. Begha (2005) 15 NWLR (Pt. 949) 616, Adeniyi v. Akintan (2011) 5 NWLR (Pt.1241) 554, Opobiyi v. Moniru (2011) 18 NWLR (Pt. 1278) 387, Magit v. University of Agriculture Makurdi & Ors. (2005) 19 NWLR (Pt. 959) 211.
A consideration of the appeal will now be made and I intend starting with the appellant’s issues number two and four. The said issues have been responded to by the respondent under his issue for determination, number two. Learned counsel made reference to the proceedings of 12th April, 2006 when the lower court closed the appellant’s case and stated that the appellant was in court on that day but could not present her first witness professionally for cross examination and neither could she present her other witnesses.
Learned counsel further stated that the inability of the appellant to proceed with her case was due to unavoidable absence of her counsel who was bereaved, a fact known to the court. Learned counsel contended that it was an act of indiscretion, totally bereft of judicious and judicial considerations, for the learned trial judge to have shut the appellant out of justice because of the absence of her counsel, which disabled her from continuing with her defence.
Learned counsel submitted that the sins of counsel should not be visited on a litigant. In support, reference was made to Ibodo v. Enarofia (1980) 5 SC 42, Saleh v. Monguno (2006) ALL FWLR (Pt.332) 1411, Obidaru v. Unique (1986) 3 SC 39.
Learned counsel stated that the learned trial judge penalized the appellant for the absence of her counsel, by closing her defence compulsorily which occasioned a miscarriage of justice. Learned counsel asserted that the miscarriage of justice is manifest in the judgment of the lower court, at the last paragraph of page 163, where the trial judge stated that there was nothing to weigh on the imaginary scale by the side of the defendant. Learned counsel stated that the defendant filed a motion on notice before the court on 25th May, 2006 praying for stay of proceedings, yet the court refused taking the application up to the time judgment was delivered.
Learned counsel referred to pages 139 to 147 for the said motion.
Learned counsel contended that where a court is aware of an application duly filed and served and yet refuses to fix a date for hearing, it amounts to a denial of party’s right to fair hearing which is a serious infraction of the Constitution or rules of natural justice. In support, reference was made to Salim v. Ifenkwe (1996) 5 NWLR (Pt. 450) 560 at 585, Okeke-Oba v. Okoye (2004) 8 NWLR (Pt.364) 695 at 615, Pepple v. Green (1990) 4 NWLR (Pt. 142) 108 at 121.
Learned counsel posited that the right to fair hearing is a fundamental right guaranteed by Section 36 of the 1999 Constitution, and any breach of it renders any proceedings a nullity.
Learned counsel contended that a proceeding cannot be said to be fair, if any of the parties is refused a hearing or denied the opportunity to be heard, present his case or call evidence. In support, reference was made to the following cases: Usman v. Duke (2006) ALL FWLR (Pt. 340) 1093 at 1124, Awuse v. Odili (2005) ALL FWLR (Pt 253) 720, Isyaku v. Master (2003) 5 NWLR (Pt. 814) 443, Okafor v. A.G. Anambra State (1991) NWLR (Pt. 959) 678, Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290. Military Governor Imo State v. Nwauwa (1997) 2 NWLR (Pt.400) 675. Learned counsel stated that there was another pending application for stay of proceeding before this court when the lower court proceeded to judgment. In support, reference was made to Vaswani Trading Co. v. Savalakh & Company (1972) ALL NLR 922 at 930. In concluding, learned counsel urged the court to resolve the issue in favour of the appellant.
As earlier stated, the learned counsel for the respondent, responded to this issue under his issue number two. Learned counsel started by giving a day by day summary of proceedings in the case, and stated that the law as held in various cases is that a party who failed to afford himself a hearing cannot complain of denial of fair hearing. In support, reference was made to Johnson Triangles Limited v. C.M. & P. Limited (2002) 15 NWLR (Pt 789) 176, Chijioke v. Soafan (2006) 10 NWLR (Pt. 1007) 46 at 62-65, Offidile v. Egwuatu (2006) 1 NWLR (Pt. 961) 421 at 434 – 435.
Learned counsel contended that the appellant failed to take advantage of the rules of court and the opportunity afforded her to defend the case. Learned counsel stated that on 12th April, 2006 the defendant’s counsel was not in court and the court asked the defendant to proceed with the case but she said she cannot in the absence of her counsel, hence the closure of her case by the court.
Learned counsel submitted that the appellant’s case was closed pursuant to Section 9(3) of the Practice Direction No. 1 of the Anambra State High Court, 2004.
Learned counsel argued that the lower court did not ignore any motion before delivery of its judgment. Learned counsel stated that the motion was not before the court, when the court proceeded to deliver its judgment. In support, reference was made to Ekpete v. Wanogho (2004) 18 NWLR (Pt.905) 394. Learned counsel further argued that in any case, the motion was an attempt to arrest the judgment of the court and motion to arrest a judgment of court is unknown to our jurisprudence. In support, reference was made to Bob-Manuel v. Briggs (1995) 7 NWLR (Pt. 409) 537, Newswatch Communication Limited v. Atta (2006) 12 NWLR (Pt. 993) 144 at 178-179. Learned counsel submitted that the case of Vaswani Trading Company v. Savalakh (supra) was cited out of con.
Learned counsel stated that the absence of defence counsel in court on 12/4/06 was due to loss of his step mother, though unfortunate but should not attract any sympathy as there was no letter of adjournment or courtesy shown to the court. Learned counsel contended that the court did not penalize the defendant due to the absence of her counsel but because the defendant was not able to proceed with the case in the absence of the counsel and could not produce DW1 for cross examination. Learned counsel submitted that the application to arrest the judgment by way of stay of proceedings which was ignored by the lower court, cannot result in setting aside the judgment as it has not resulted in any miscarriage of justice. In support, reference was made to Anah v. Anah (2008) 9 NWLR (Pt. 1091) 75. In concluding, learned counsel urged that the appeal be dismissed on this issue.
The foregoing so far reflects the submission of counsel, representing both parties to this appeal. The complaint of the appellant under these issues boarders on the issue of fair hearing.
Simply put and briefly stated, fair hearing is a hearing which is fair to both parties, be they plaintiffs or defendants, or prosecution and defence. The hearing must be fair and in accordance with the twin pillars of justice, namely: audi alterem partem and nemo judex in causa sua. See Pam v. Mohammed (2008) 16 NWLR (Pt.1112) 1.
A party who will be affected by the result of a judicial proceedings, must be given an opportunity of being heard. Otherwise the proceedings, will amount to an infraction of the Constitution. See Section 36 of the 1999 Constitution, Ogundoyin v. Adeyemi (2001) 13 NWLR (Pt. 730) 403 at 423, Akande v. State (1988) 3 NWLR (Pt. 85) 681.
Now back to the case at hand, a review or summary of the proceedings as made in the respondent’s brief, had been made in the earlier part of this judgment. There were indeed series of adjournments in the matter, some at the instance of the defendant while others at the instance of the court. Indeed some of the adjournments made at the instance of the defendant like that of 7/2/06 and 8/2/06, were compensated by way of costs. It is noteworthy also to observe that when DW1 started his evidence in chief on 24/11/05, the court suo motu adjourned the matter for continuation of evidence of DW1. The adjournment was made from 24/11/05 to 7/2/2006.
On 12/4/06, the defence counsel was not in court, but the defendant says she cannot proceed with the case in the absence of her counsel. The proceedings of 12/4/06 as reflected on page 159 had been earlier reproduced in this judgment. The court however in its infinite wisdom refused to oblige the defendant an adjournment, and it was the same court that adjourned the matter suo motu on 24/11/05, when DW1 started his evidence in chief. The adjournment was made from 24/11/05 to 7/2/06. On 12/4/06 when the defendant said she cannot continue with the case in the absence of her counsel, the court invoked Section 9(3) of the Practice Direction and closed the defendant’s case. That has not been fair on the defendant as it has shut her out permanently from putting across her defence, and infringed on her right to fair hearing. The discretion in refusing the adjournment and closing the case of the defence was not exercised judicially and judiciously and not fair on the appellant. See University of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143 at 148, Daniag v. Teachers Service Commission (1996) 5 NWLR (Pt 446) 97, Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23, Ajanaku v. Williams (2009) 3 NWLR (Pt. 1129) 617 at 632 – 633.
On the application for stay of proceedings filed on 25/5/06, learned counsel for the respondent contended that the motion was not before the court and it was an attempt to arrest the judgment. Learned counsel further argued that application to arrest a judgment does not exist in our jurisprudence. The application in contention is on page 139 of the record, and it was endorsed “filed at the High Court Onitsha on 25/5/2006”. The contention that it was not before the court cannot be correct. The application on the face of it was for stay of proceedings, not for the arrest of a judgment. It is trite law, that it is the duty of a court to entertain and decide on the merit, any application brought before it by any party, notwithstanding the perceived strength or weakness of such an application. The
application may be downright stupid or unmeritorious, but it must be heard. A refusal by a court to hear a motion is a breach of a right to fair hearing guaranteed under the Constitution. The refusal of the court to hear the appellant’s motion or make pronouncement on it in its judgment is a violation of the appellant’s right to fair hearing and has occasioned a miscarriage of justice. See Newswatch Communications Limited v. Atta (supra) at 168 170, Onyekwuluje v. Animashaun (1996) 3 NWLR (Pt 439) 637, Mobil Producing Nigeria Unlimited & Anor. v. Chief Simeon Monokpo & Ors. (2003) 12 SCNJ 206 at 215, Nalsa & Team Associates v. N.N.P.C. (1991) 8 NWLR (Pt. 212) 652, Otapo v. Sunmonu (1957) 2 NWLR (Pt. 58) 587, Afro Continental (Nigeria) Limited & Anor. v. Co-operation Association of Professionals Incorporation (2003) 1 SCNJ 530 at 531.
It is trite law, and plethora of authorities have established that to be accorded fair hearing in any trial, a party must:
(i) be entitled to a counsel of his choice;
(ii) be afforded the opportunity to call all necessary witnesses in support of his case;
(iii) have the opportunity of cross examining or challenging the evidence of witnesses called by his adversary;
(iv) have the same right as his adversary through his counsel to address the court on the law in support of his case.
Applying the above principles to the instant case, the appellant was not accorded fair hearing at all. See Kwashi v. Pusmut (2010) 1 NWLR (Pt.1176) 518 at 531. As at the time defendant said she cannot continue with her case without her counsel, ordinarily an adjournment ought to have been granted. At worst, cost can be awarded against her, but not an order closing her case. The closure of her case had a negative repercussion on her as there was nothing to put on her side of the imaginary scale of justice, as stated by the lower court of page 163 of the record. I wish to observe albeit by way of passing, that from the record, all the adjournments made in the absence of the defendant not a single hearing notice was ordered to be served either on the defendant or her counsel. The breach of fair hearing has occasioned a gross miscarriage of justice, hence rendering the trial a nullity. The two issues succeed and are resolved in favour of the appellant.
Though it has earlier been indicated that this appeal will be determined on the issues formulated by the appellant, it is no longer necessary considering the success of issues two and four. This is so, because the circumstances under which a consideration of other issues may be dispensed with are (i) when order for retrial is considered desirable or (ii) where the judgment appealed against is declared a nullity, in which case there will be no need to pronounce on other issues flowing from the trial declared nullity and which could possibly arise at the retrial or fresh action. See Brawal Shipping (Nigeria) Limited v. Onwadike (2000) FWLR (Pt. 23) 1254 at 1271, Sanusi v. Amoyegun (1992) 4 NWLR (Pt. 237) 527 at 550 – 551, Shoshi v. Smith (2009) 18 NWLR (Pt. 1173) 330, Ebonyi State University v. Dr. Mary Eteng CA/E/314/09 of 11th May, 2012.
This appeal therefore is meritorious and is hereby allowed.
The judgment of the lower court delivered on 30th May, 2006 in suit number 0/839/99 is hereby set aside. In its place, an order is hereby made remitting the case to be heard by another judge of Onitsha Judicial Division.
I make no order as to costs.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I have read in advance the Judgment of my learned brother Jauro, JCA which has just been delivered.
I agree with him that this appeal ought to be allowed. Accordingly, I hereby allow the appeal and set-aside the Judgment of the lower court delivered on 30th May, 2006 in Suit Number 0/839/99. In its place, an order is hereby made remitting the case to the Chief Judge of Anambra State to be heard by another Judge of Onitsha Judicial Division.
I abide by the order as to costs.
AYOBODE O. LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in advance the judgment of learned brother, Adamu Jauro, JCA; in this appeal. I am in total agreement with his lordship’s reasoning and conclusions and I have nothing to add thereto.
I adopt the judgment as mine. Accordingly, I find the appeal to be meritorious and allow the same. I too, set aside the judgment of the lower court (per Hon. Justice Vin Agbata) delivered on 30/5/2006 appealed against, and make an order remitting the case to the Chief Judge of Anambra State, for it to be assigned to another learned Judge in Onitsha Judicial Division for hearing de novo.
I make no order as to costs.
Appearances
Mr. J.O.N. Ikeyi with Emeka Abah Esq., and M.I. Nwangbo Esq.,For Appellant
AND
Mrs. Emilia Enemuoh with C.A. Elechukwu Esq.,For Respondent
