MOSES ATOBATELE & ORS. v. CHIEF DELE FASERU & ORS.
(2012)LCN/5474(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 19th day of June, 2012
CA/I/99/2001
RATIO
” The rule of audi alteram partem postulates that the trial Judge must hear both sides at every material stage of the proceedings before handing down a decision. The learned trial Judge did not give the appellants the opportunity of cross-examining the witnesses called by the defence. He did not allow the appellants to present their address before handing down his decision. Mr. Olalekan Ojo for the appellant is right that the denial of fair hearing to the appellants in this case is incurably fatal to the judgment of the trial court. The judgment is bound to be set aside. It is irrelevant whether or not the judgment of the trial Judge made subsequently is correct as the proceedings leading to the judgment are null and void. See F.M.B.N. Ltd v. Adu (2000) 11 NWLR (Pt.678) 309 @ 318 – 319 paras H – B; Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587: Tukur v Government of Gongola State (1989) 4 NWLR (Pt.117) 517.” Per IYIZOBA, J.C.A.
“The test of fair hearing is the “reasonable man” test – whether an ordinary citizen sitting in the court room watching the proceedings would leave the court with the impression that justice has been done. See: Alsthom vs. Saraki (2005) 1 SC (Pt.1) 1 @ 14 lines 40 – 43 – 15 lines 1 – 5; Isiyaku Mohammed vs. Kano N. A. (1968) 1 ALL NLR 423; Ndukauba vs. Kolomo (2005) 1 SCC (Pt.1) 80 @ 90 lines 5 – 16; Olumesan vs. Ogundepo (1996) 2 NWLR (433) 628 @ 644 – 645 H – B.” Per KEKERE-EKUN, J.C.A.
“In the resolution of this issue, it is pertinent to refer to section 36 of the Constitution of the Federal Republic of Nigeria 1999 which confers on every citizen the right to fair hearing in the determination of his civil rights and obligations. In the case of Nigerian-Arab Bank Ltd v. Comex (supra) referred to by learned counsel for the appellant Pats Acholonu (JCA as he then was and of blessed memory) observed:- “It is a highly esteemed principle of law and enshrined in our Constitution that in the administration of justice parties to a legal duel must each be accorded every opportunity of canvassing its case to the best of its ability within the rules regulating the procedure to achieve the end of justice. Fairness of a trial is demonstrated by the attitudinal behavior of the presiding judge in the course of trial towards a party. It is characterized by lack of prejudice and bias and open ended in such a way that any common man present in court will easily attest to the fairness of the procedures. In Otopo v. Sunmonu (1987) 2 NWLR (Pt.58) p. 587 of 605 Obaseki JSC said: “A hearing can only be fair when all parties to the dispute are given o hearing or an opportunity of a hearing. If one of the parties is refused or not given an opportunity to be heard, the hearing cannot qualify as fair hearing. When, therefore, the represented parties were not heard or given an opportunity of being heard in the appeal, the hearing by the Court of Appeal cannot come within the category of fair hearing. Without fair hearing, the principles of natural justice are abandoned; and without the guiding principles of natural justice the concept of the rule of law cannot be established and grow in the society.” See also Obeta v. Okpe [1995] 9 NWLR (Pt.473) 401 @ 437 – 438 H – A; Okeke v. Nwokoye [1999] 13 NWLR (Pt.635) 495 @ 507 – 509 H – F; Ntukidem v. Oko (1985) 5 NWLR (Pt.45) 909: Adieun v. A.G. Oyo State (1987) 1 NWLR (Pt.53) 578 @ 719 – 721: Bamgboye v. University of Olorin (1999) 10 NWLR (Pt.622) 290 @ 335 – 336 G – A.” Per IYIZOBA, J.C.A.
“The law is settled that, generally, an appellate court will not make an order for retrial where:- (a) the plaintiff or claimant has established his case by raising the probabilities thereof in his favour; or (b) the order of retrial will enable the defendant to improve his position during the retrial to the detriment or prejudice of his opponent; or (c) the litigation will be unnecessarily prolonged; or (d) the proceedings were conducted by the trial court largely or substantially in conformity with rules of evidence and procedure; or (e) there was no substantial irregularity in the conduct of the case. See Mafimisebi & Anor. v. Ehuwa & Ors. (2007) 2 NWLR (Pt.1018) 385 at 435, paras. D – F. Also, an order of a retrial is inappropriate where the plaintiffs case had failed intoto – Oguntayo V. Adelafa (2009) 15 NWLR (Pt.1163) 150. On the other hand, on order of retrial will readily be made by an appellate court where there has been a serious irregularity in the trial court – Oguntayo v. Adelafa (supra) at 194 – 195 and Star Paper Mill Ltd. & Anon v. Bashiru Adetunji & ors. (2009) 13 NWLR (Pt.1159) 647 at 668.” Per MOORE A. A. ADUMEIN, J.C.A.
JUSTICES
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
MOORE A. A. ADUMEIN Justice of The Court of Appeal of Nigeria
Between
1. MOSES ATOBATELE
2. JAMES AGBEKOREDE
3. THOMAS ALONGE
(For themselves and on behalf of all the Princes (Omobas) of the four ruling Houses of Ogboni ljebu-Jesa) Appellant(s)
AND
1. CHIEF DELE FASERU
(The Saba of Ijebu-Jesa)
2. CHIEF J. O. OPEYEKUN
(The Sajiku of Ijebu-Jesa)
3. CHIEF A. A. ESUGBONGBE
(The Aro of Ijebu-Jesa)
4. CHIEF J. A. ATENOGBOLA
(The Asolo of Ijebu-Jesa)
5. THE GOVERNOR OF OSUN STATE
6. ATTORNEY-GENERAL AND COMMISIONER FOR JUSTICE, OSUN STATE
7. TAIWO ARIBISALA
8. HIS ROYAL MAJESTY, OBA ADEKUNLE AROMOLARAN
(OWA-OBOKUN OF IJESA LAND) Respondent(s)
CHINWE E. IYIZOBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Falade J. of the Osun State High Court sitting at Ilesha delivered on the 15th day of April 1999 in favour of the respondents who were defendants in the court. The appellants being dissatisfied with the judgment appealed to this court.
The appellant’s suit at the lower court arose from disputes over the installation of the 7th respondent as the Ogboni of Ijebu-Jesa. The claims of the appellants as plaintiffs in the lower court in their further further amended statement of claim are as follows:
1. “Declaration that there are four Ruling Houses from where Ogboni of Ijebu-Jesa are installed and that the four ruling houses are the descendants of the first Oba of ljebu-Jesa AGIGIRI who accompanied Owa Obokun from Ile-Ife
2. Declaration that AJIGITERI was not a descendant of AGIGIRI and did not belong to any of the four (4) Ruling Houses i.e. IDAEKUN, AYAPAKI-EFON, NIBAYO and AKOOKUAHUN.
3. Declaration that the 7th defendant claiming to be a member of AJIGITERI family is not entitled to be appointed the Ogboni of Ijebu-Jesa.
4. Declaration that the purported installation of the 7th defendant as Elegboro and/or Ogboni of Ijebu-Jesa is contrary to the tradition and native law and custom governing the installation of the Ogboni of Ijebu-Jesa who since time immemorial, is always installed at Ilesa, at Owa Obokun’s Palace and that the title purportedly alleged to be assumed by the 7th defendant is at variance with the Provision of Chief’s Law Cap 21 Laws of Oyo State of Nigeria as applicable in Osun State.
5. Declaration that by agreement among the four Ruling houses, the next Ruling House to produce Ogboni of Ijebu-Jesa is IDAEKUN ruling house.
6. PERPETUAL INJUNCTION restraining the 1st to 6th defendants, their servants, and/or privies from installing the 7th defendant or any person from AJIGITERI family the Ogboni of Ijebu-Jesa.”
The case of the appellants as gathered from their brief is that on completion of pleadings, the lower court set the case down for hearing. After the appellants had called four out of their five witnesses, the learned trial judge on 31/3/99 adjourned further hearing in the case to 14th and 15th April, 1999. The appellants claim that civil servants in Osun State began an indefinite strike action on Monday 13th April 1999. The strike action was declared by the Osun State Chapter of the Nigerian Labour Congress. When the appellants and their counsel got to the court on the 14th of April 1999, the second day of the strike, the court did not sit. The appellants claimed the respondents and their counsel were in court. Appellants alleged that the court did not sit due to the on-going strike action. They alleged that the court premises were locked. Appellants claimed that both sides went away in the belief that hearing will resume after the strike action. To their utter shock and surprise, the court sat the next day 15/4/99. The 1st and 7th defendants and their counsel were in court. Counsel for the appellants Olalekan Ojo in his brief alleged that of all the judges in Osun State, it was only the learned trial judge that sat on that 15/4/99. Further, counsel alleged that the court hall was opened by the court clerk on the instruction of the learned trial judge. The trial judge on finding the appellants absent closed their case and called on the defence to open their case. The defendants called three witnesses including the 7th defendant and thereafter closed their case. Without any address from the plaintiff, the trial judge there and then on the same 15/4/99 read his judgment which according to the appellants when typed was up to 23 pages. The appellants on 26/4/99 filed a motion on notice to set aside the proceedings and judgment of the lower court of 15/4/99 on various grounds including the ground that the proceedings were nullities having been conducted in violation of the plaintiffs’ right to fair hearing. The appellants then wrote to the Chief Judge requesting that the case be transferred to another judge for the hearing of the motion.
In the meantime the learned trial judge had fixed the motion for hearing on 3/5/99. Learned counsel for the appellants wrote to the trial judge informing him of the application for transfer of the case, urging him to adjourn the motion to await the decision of the Chief Judge on the application for transfer. The plaintiffs’ counsel was not in court. Learned counsel for the 1st-4th and 7th defendants opposed the application for adjournment of the motion. The 1st plaintiff who was present in court stated that he had no reply and that he could not even argue the motion. The trial judge thereupon dismissed the motion.
Learned counsel for the 1st-4th and 7th respondents in his brief painted a different picture of the events leading to the judgment of the trial court. According to learned counsel, when the stool became vacant invitations were sent to the princes to nominate candidates and they complied. The kingmakers appointed the 7th respondent and the appointment was approved by the government of Osun State. The plaintiffs sued on behalf of all the princes of the Ruling Houses of Ijebu Ijesa challenging the appointment of the 7th respondent. Three of the original plaintiffs (1) Ayo Palmer (21 Moses Ayeni Uti and (3) Daniel Atitebi, 2nd – 4th plaintiffs withdrew from the action. James Agbekorede and Thomas Alonge were later substituted for the 3rd and 4th plaintiffs. James Agbekorede the 3rd plaintiff again withdrew from the case leaving only the 1st and 4th plaintiffs representing only two of the four ruling houses that originally instituted the action. The plaintiffs called four witnesses between 1/4/98 and 21/4/98 when their counsel withdrew from the case. Learned counsel alleged that the plaintiffs changed their counsel on 30/6/98 and sought for adjournment on several grounds including intention to explore possibility for settlement. The case was then adjourned to 27/7/98 when the plaintiffs sought for further adjournments which was granted to 20th and 21st October 1998. On 21/10/98, the plaintiff called one witness and then asked for adjournment to call their last witness, one Pastor Oluwatise. The case was then adjourned to 3rd and 4th November 1998. On 4/11/98, the plaintiffs sought for further adjournment to locate their last witness Pastor Oluwatise whose where about they did not know and that the possibility of locating him was nil. The court counsel alleged reluctantly granted an adjournment for them to make up their mind about their last witness. On 17/11/98, the plaintiffs raised a preliminary objection to certain paragraphs of the statement of defence and argued same. Ruling was reserved and after it was delivered there were several adjournments. On 31/3/99, the plaintiffs indicated that they were not calling any more witnesses. The case was then adjourned to 14th and 15th April 1999 for further hearing. Counsel alleged that on 14/4/99, the court did not sit as it also did not sit on 3/11/98. The plaintiffs were not in court. Counsel alleged that on 15/4/99, the court sat, read rulings in other cases before calling on the defence to open its case. Counsel further alleged that the court heard the defence and gave judgment that same 15/4/99.
With the order of the court granting the appellants extension of time within which to appeal, the appellants on 21/11/2000 filed a notice of appeal with 7 grounds of appeal. The grounds of appeal shorn of their particulars are as follows:
1. The trial judge demonstrated his prejudice and bias against the plaintiffs and acted contrary to law and his oath of office when he alone in the State emerged in court on the 2nd and 3rd day of strike action, opened the case of the defendant and delivered a type-written judgment immediately after the close of the defence case which judgment contained patent falsehood.
2. The learned trial judge erred in law and exercised his discretion injudiciously, arbitrarily and in a manner which violated the plaintiffs/appellants’ right to fair hearing by failing to adjourn further hearing in the suit on 15th April, 1999, the second day of the strike action which the judgment acknowledged by not sitting on the 14th when the strike action began.
3. The learned trial judge erred in law and acted in disregard of the plaintiffs/appellants’ right of fair hearing when he closed the plaintiffs/appellants’ case and called on the 1st to 4th and 7th defendants/respondents to open their defence in the absence of the plaintiffs/appellants when on the printed records the plaintiffs’ case was not closed.
4. The learned trial judge erred in law and in breach of the plaintiffs/appellants’ right to fair hearing by giving judgment in the case without giving the plaintiffs/appellants the opportunity to address the court and thereby occasioned a miscarriage of justice.
5. The learned trial judge erred in law when before considering the totality of the case of the plaintiffs/appellants and evaluating the entire case concluded that the plaintiffs/appellants had not made out any prima facie case and thereby occasioned a miscarriage of justice.
6. The learned trial judge erred in law and abdicated his role as an unbiased umpire in the proceedings when he held as follows:-
“This is a peculiar case which the plaintiffs made every effort to oust the 7th defendant as the paramount Ogboni of Ijebu-Jesha or Elegboro of Egboro as the case may be,” and thereby occasioned a miscarriage of justice.
7. The learned trial judge misdirected himself in law when he held as follows:-
“I therefore hold as a fact that the Ogboni Chieftaincy had been infiltrated by strangers and non-descendants of any former ruling house.”
The relief sought from this court by the appellants is to allow the appeal and order a re-trial of the plaintiffs/appellants’ case before another judge.
Out of the 7 grounds of appeal, the appellants distilled four issues for the determination of this court. They are as follows:-
Did the learned trial judge act fairly impartially and in observance of the judge’s duty to protect the appellants’ constitutional right to fair hearing when he out of all the judges in Osun State sat on 15/4/99, the third day of the industrial action embarked upon by civil servants in Osun State, closed the appellants’ case, called on the 1st- 4th and 7th respondents to open their case, took witnesses for the defendants/respondents and delivered judgment without taking appellants’ address and in the absence of the appellants and their counsel who were not in court by reason of the strike action. (Grounds 1 to 4)
ISSUE II
Was the trial court right in concluding that the appellants had not made out any prima facie case when the learned trial judge had not considered and evaluated the appellants’ case? (Ground 5)
ISSUE III
Whether or not the trial judge’s holding that “this is a peculiar case which the plaintiffs made every effort to oust the 7th defendant as the paramount “Ogboni of Ijebu-Jesha or Elegboro of Egboro as the case may be” is not indicative of the learned trial judge’s bias in favour of the 1st – 4th and 7th respondents and accordingly constitute an abdication of his roles as an unbiased umpire in the proceedings. (Ground 6)
ISSUE IV
Was the learned trial judge right in holding that the Ogboni Chieftaincy had been infiltrated by strangers and non descendants of any former ruling house when no issue was joined on the pleadings of the parties as to the infiltration of the Ogboni Chieftaincy title? (Ground 7)
In his brief of argument, C. J. Chukura Esq. for the 5th – 4th and 7th respondents adopted the above issues set out by the appellants, though formulated in an abridged manner. See paragraphs 3.0 – 3.4 at page 4 of the brief.
In her brief of argument, Mrs. Ojimi for the 5th and 6th respondents adopted the facts of the case and the issues as set out in the 1st – 4th and 7th respondent’s brief of argument.
The 8th respondent, though served did not appear throughout the proceedings and was not represented by counsel. No processes were filed on his behalf.
Mr. Chukura for the 1st – 4th and 7th respondents had on 20/2/04 filed a notice of preliminary objection dated 16/2/04. When this appeal came up for hearing on 25/4/12, Mr. Chukura did not move the court on his preliminary objection before the appellant adopted his brief of argument. Having allowed Mr. Alabi for the appellants to adopt his brief first, the respondents are deemed to have waived their right to move the preliminary objection. The preliminary objection is consequently deemed abandoned.
ARGUMENTS ON ISSUES
ISSUE I:
Learned counsel for the appellants on issue 1 submitted that the basic principle of law which is entrenched in section 36 of the 1999 Constitution of the Federal Republic of Nigeria is that an adjudicating authority must be fair and just in the exercise of its judicial power over the case of the parties. Counsel referred to several authorities including Oduwole v. Aina (2001) 22 W.R.N. 125 @ 149 lines 10 – 35: Nigerian Arab Bank Ltd v. Comex (1999) 6 NWLR (Pt. 608) 648 @ 663 paras F – H: Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290 @ 335 – 336 paras G – A. Learned counsel submitted that the trial court acted unfairly and in disregard of the appellants’ right to fair hearing by proceeding with the hearing of the case on 15/4/99 in spite of the ongoing strike action and in the absence of the appellants and their counsel in the circumstances of the case. Counsel further submitted that the decision of the trial judge in continuing with the part heard case on 15/4/99 when he did not sit on 14/4/99, the second day of the strike action; hearing the 1st – 4th and 7th respondents’ case behind the appellants and delivering his judgment that same date was in breach of the appellants’ right to fair hearing and occasioned injustice to them. Relying on the case of F.M.B.N. Ltd v. Adu (2000) 11 NWLR (Pt. 309) @ 318-319 learned counsel submitted that once a party entitled to be heard before a decision was reached was not given an opportunity of being heard, the judgment entered is bound to be set aside whether or not the decision made subsequently is correct as the proceedings leading to the decision are null and void. Referring also to the case of Offor v. State (19991 12 NWLR (Pt.532) 508 @ 525 paras D – B and Salami v. Odoewu (1991) 2 NWLR (Pt.173) 291, Counsel submitted that the denial of the appellants of their right to address the trial court after conclusion of the evidence of the parties constitute breach of fair hearing which would also render the hearing null and void. Learned counsel urged the court to resolve this issue in favour of the appellants and to set aside the proceedings of 15/4/99 and the judgment of the court as null and void.
The summary of the contention of learned counsel for the 1st – 4th and 7th respondents in reply to issue no. 1 is that the appellants were unduly delaying the hearing of the case, and indeed appeared not to be interested in concluding the case. Counsel argued that the normal procedure when a case is fixed for two consecutive days, if the judge failed to sit on the first day is for the parties to be in court on the next day. Counsel further argued that the 1st plaintiff had already written to the court to excuse his absence from court on the two dates 14th and 15th April 1999 as shown on page 63 of the records. The conclusion of the trial court therefore was that the appellants were bent on ensuring that the hearing did not proceed. Counsel submitted that there is nothing in the records of appeal to support the allegations that the trial judge was the only judge who sat on 15/4/99 or that the judge did not sit again after 15/4/99 or that the parties and their counsel agreed that they would write to the court for a new date after the strike or that the respondents’ counsel addressed the court on the conclusion of the case for the defence. Counsel then submitted that if the premises on which the argument of counsel is not supported by the evidence on record, then the arguments cannot be valid. Counsel urged us to resolve the first issue in favour of the respondents.
Learned counsel for the 5th and 6th respondents in her brief associated herself with the submissions of learned counsel for the 1st – 4th and 7th respondents. In addition, counsel submitted relying on the case of Folbod Investment Ltd v. Alpha Merchant Bank Ltd (1996) 10 NWLR (Pt.478) 344 @ 357 paras E – G that a party who fails to appear to pursue his action in court cannot complain of denial of fair hearing. Counsel also submitted that the presumption or misjudgment of the appellants or their counsel that the court will not sit on 15/4/99 when the court indeed sat cannot vitiate the proceedings of the day and that same is not indicative of the fact that the court acted unfairly. Counsel relied on the case of Ekrebe v. Efeizomor II & Anor. (1993) 7 NWLR (Pt.307) 588 @ 601 – 602 paras G – A. Counsel urged the court to resolve issue 1 in favour of the respondents and to hold that the trial court was not wrong to sit and continue with the hearing of the case on 15/4/99.
In the resolution of this issue, it is pertinent to refer to section 36 of the Constitution of the Federal Republic of Nigeria 1999 which confers on every citizen the right to fair hearing in the determination of his civil rights and obligations. In the case of Nigerian-Arab Bank Ltd v. Comex (supra) referred to by learned counsel for the appellant Pats Acholonu (JCA as he then was and of blessed memory) observed:-
“It is a highly esteemed principle of law and enshrined in our Constitution that in the administration of justice parties to a legal duel must each be accorded every opportunity of canvassing its case to the best of its ability within the rules regulating the procedure to achieve the end of justice. Fairness of a trial is demonstrated by the attitudinal behavior of the presiding judge in the course of trial towards a party. It is characterized by lack of prejudice and bias and open ended in such a way that any common man present in court will easily attest to the fairness of the procedures. In Otopo v. Sunmonu (1987) 2 NWLR (Pt.58) p. 587 of 605 Obaseki JSC said:
“A hearing can only be fair when all parties to the dispute are given o hearing or an opportunity of a hearing. If one of the parties is refused or not given an opportunity to be heard, the hearing cannot qualify as fair hearing. When, therefore, the represented parties were not heard or given an opportunity of being heard in the appeal, the hearing by the Court of Appeal cannot come within the category of fair hearing. Without fair hearing, the principles of natural justice are abandoned; and without the guiding principles of natural justice the concept of the rule of law cannot be established and grow in the society.”
See also Obeta v. Okpe [1995] 9 NWLR (Pt.473) 401 @ 437 – 438 H – A; Okeke v. Nwokoye [1999] 13 NWLR (Pt.635) 495 @ 507 – 509 H – F; Ntukidem v. Oko (1985) 5 NWLR (Pt.45) 909: Adieun v. A.G. Oyo State (1987) 1 NWLR (Pt.53) 578 @ 719 – 721: Bamgboye v. University of Olorin (1999) 10 NWLR (Pt.622) 290 @ 335 – 336 G – A.
It is also the law as stated by Mrs. Ojimi for the 5th and 6th respondents that a litigant who by his own deliberate decision or misjudgment fails to avail himself of the opportunity of a hearing cannot complain of deprivation of fair hearing. In the case of Folbond Ltd v. Alpha Merchant Bank Ltd (Supra) the Court of Appeal per Ayoola J.C.A. as then was observed:
“In this case, it is confirmed by the appellant that the High Court had indicated on the 6th July 1992 that it would proceed immediately to a hearing of the summons for judgment on 10th July 1992 if it ruled against the defendants on their application for a stay of proceedings. Counsel for the appellant attended court from 9am to 12.15pm and left when according to the appellant: ‘There was no information that the court will be sitting. As it turned out, the court did sit. For counsel for the appellant to have left the court without ascertaining whether or not the court would sit on that day or when the case would be adjourned to was a serious misjudgment on his part.”
In view of the above authorities and taking into consideration the facts and circumstances of this case, can it be said that the learned trial judge acted unfairly and in disregard of the appellants’ right to fair hearing by proceeding with the hearing of the case on 15/4/99 in spite of the on – going strike action and in the absence of the appellants and their counsel. It is to be noted that the respondents did not in their briefs of argument deny that a strike action was on-going at the material time. As pointed out by the appellants in their brief, by virtue of Section 33 (1) of the High Court Laws, Cap 46 Vol. III Laws of Oyo State of Nigeria 1978 as applicable in Osun State and the decision of the Supreme court in the case of Anie v. Uzorka (1993) 8 NWLR (Pt.309) 1 @ 20-22, strike period does not strictly speaking qualify as a work free day or public holiday or a vacation. But it is my view that the appellants are right in their contention that a judge acting fairly and justly would have regarded the strike action as constituting a good reason for the absence of the appellants in court on 15/4/99 especially as the judge did not attend court on 14/4/99, the second day of the strike action and as all the other courts did not also sit. Learned counsel for the respondents had argued that there is nothing in the records of appeal to support the allegations that the trial judge was the only judge who sat on 15/4/99 or that the judge did not sit again after 15/4/99. At page 87 of the Supplementary record of appeal, there is an affidavit deposed to by a legal practitioner Olu Ogundele. Paragraphs 3 – 7 read as follows:
3. “That on Wednesday 14th April, 1999 there was a strike ordered by the Nigerian Labour Congress and it affected all the civil servants in the State.
4. That on Thursday the 15th of April, 1999, I was at the High court premises at Ilesa to see whether the court will open for business or not.
5. That when I got to the Court premises, it was only court one, which was presided over by Justice Falade that opened that day.
6. That all other offices were locked.
7. That Justice S.A. Falade presided as a judge in the case of the chieftaincy title between the Elegbore of Ijebu-Jesa and Prince Atobatele.”
At page 85 of the supplementary record, Paul Abiona, a senior messenger of the High Court of Justice Ilesa in an affidavit deposed thus:
3. That as a senior messenger, I am in charge of opening and locking the doors of the High Court of Justice Ilesa, Osun State.
4. That on Tuesday 13th April, 1999, information reached us from our workers union at Osogbo that all workers in the state civil service should proceed on immediate and compulsory strike.
5. That I immediately locked the court premises and submitted the keys at the police station.
6. That all the staff of the high court immediately proceeded on strike.
7. That on Thursday the 15th April, 1999, I was passing by the court premises when I saw the court clerk, Prince Famodun with some people in the court premises.
8. That I immediately asked him what he was doing in the court when every other person was on strike, and he claimed to have reported at the court on the instruction of the Judge.
9. That I told him that he would be responsible for whatever happened in the court since I did not open the court rooms because of the strike.
10. That on Saturday the 17th of April, 1999, Prince Atobatele one of the parties to this case came to my house and challenged me on why I opened the court premises when the court was on strike.
11. That when I narrated my own story to him, he appealed to me to follow him to Ibadan to explain these facts to the counsel to the plaintiff.
It is thus apparent from these affidavit evidence which were not controverted that there was strike action and that all the courts did not sit on the 13th and 14th April, 1999 because of the strike action; that of all the judges it was only the learned trial judge that sat on 15th April, 1999. I agree with the appellants that the trial judge in the circumstances acted unfairly and in disregard of the appellants’ right to fair hearing by proceeding with hearing on that 15th of April 1999. At page 43 of the record of appeal the learned judge notwithstanding that the hearing is for the 15th of April indicated that the 1st plaintiff wrote a personal letter to him to excuse him from court on 13/4/99 and 14/4/99. There was no further enquiry as to the reason for the absence of the plaintiffs or explanation in the record as to why the court proceeded with the hearing in their absence. There was no formal closure of the appellants’ case as plaintiffs. Although at the hearing of 31/3/99, the court record showed at page 43 that the 1st plaintiff informed the court that he is abandoning his last witness, Pastor Oluwatise and that he is no more calling him as a witness, the appellants did not say that they were not calling any other witness as stated by the learned trial judge in his judgment at page 57 line 6 of the record. The plaintiffs did not formally close their case and on 15/4/99, the court did not also formally close the case of the plaintiffs, the record of the day simply said “Defence opens”. The court went ahead to call three defence witnesses and immediately after without giving the parties opportunity to address the court delivered a lengthy judgment of about 23 pages. Even if the learned trial judge had the best intentions and acted in good faith out of frustration by what he perceived as the appellants concerted efforts to frustrate the hearing of the case, the trial was not conducted in accordance with laid down legal rules and procedure. No matter how bad a trial judge thinks a party’s case is, in civil trials, each party must be accorded every opportunity of canvassing its case to the best of its ability within the rules regulating the procedure to achieve the end of justice. The learned trial judge did not give the appellants fair hearing. The fact of hearing the case on that 15th of April in the absence of the appellants in view of the strike action can be excused. But going on to take the evidence of all the defence witnesses without adjourning to give the appellants the opportunity to cross examine them and worst of all going right ahead to deliver judgment without adjournment to enable the appellants address the court is with all due respect totally prejudicial to the appellants and a clear case of denial of fair hearing. The trial judge’s action did not show lack of prejudice and bias. On the contrary any disinterested on looker present in the court will surely be left with the impression not only that the trial judge did not give the appellants a fair hearing but that he was biased in favour of the respondents.
In his judgment at page 58 of the record of appeal, the learned judge observed:
“I could have earlier on decided this case because, to me, the plaintiffs have not made any prima facie case. A prima facie case can apply to civil matters. If at the end of the plaintiffs’ case in a civil matter the plaintiff has not led evidence on essential elements of the claim, the trial judge may well feel that it is pointless continuing with the proceedings and he may at that point dismiss the plaintiff s claims in which case it would mean that the plaintiff did not make out a prima facie case. See Benignus Duru & or v. Jonathan Nwosu (1989) 4 NWLR (Pt.113) 24 @ 41… But having regard to the justice of the case, I changed my mind and received the case for the defence.”
This wrong statement of the law explains why the learned trial judge fell into the grievous error of not giving the appellants the opportunity to fully present their case. It also explains why the judgment was already written and ready even before the defendants presented their case. Allowing the defendants to present their case was as far as the judge was concerned a mere formality and to satisfy all righteousness. That was why it did not occur to the learned Judge that the appellants ought to have been given the opportunity to cross-examine the witnesses called by the defence and to present their address. The learned trial judge had made up his mind which way the case was to go even before the conclusion of hearing. The learned judge clearly misinterpreted the judgment of the Supreme Court in Duru v Nwosu (1989) 4 NWLR (Pt.113) 24 as regards the concept of “prima facie case” in civil matters. There, Oputa JSC at page 48 paragraph F observed:
“In his Brief, learned counsel for the plaintiffs/respondents supported the importation of the concept of “prima facie case” into civil litigation but having regard to the cases he cited, there seems in practice as opposed to theory to have been some mix up between the concept of prima facie case and the concept of onus of proof in civil cases. Prima facie literally means at first sight. In civil cases, “the first sight” one has about the case is at the pleading stage. If at that stage one talks of prima facie case, then the expression prima facie will mean what it says. If the plaintiffs’ pleadings do not disclose a cause of action o defendant can move to have same struck out for he will not be required to answer to pleadings which will, in any event, fail. This the defendant can do by way of demurrer…The appellants’ contention in their issue No. 2 is that the learned judge’s application (I would say erroneous application) ‘of the principle of ‘prima facie’ case worked to the prejudice of the appellants.” I think that contention is right. Civil cases ought to be decided on the balance of probability…That balance must also have its scale evenly weighted before the evidence of each party is put on each scale for weighing. Where there is an obvious bias by the learned trial Judge for the evidence adduced by one side…..then he was not holding the scales fairly and evenly…”
A trial Judge does not have the right after the close of the case of the plaintiff to dismiss such case suo motu on the ground that a prima facie case was not made out. As an impartial arbiter of facts between the dueling parties, the court must allow the parties to present their case as they deem fit. It is only at the end that the Judge may weigh the facts in the proverbial scale to determine on whose side the scale tilted. Any attempt to throw out a case on the ground that a prima facie case was not made out must be initiated by the defendant and usually at the close of pleadings before evidence is led by the parties. Once evidence is gone into, there is always the possibility that defects in the evidence of the plaintiff may be remedied during the presentation of the case of the defendant. The concept of “prima facie case” cannot properly arise at that stage and certainly not at the instance of the trial Judge.
The rule of audi alteram partem postulates that the trial Judge must hear both sides at every material stage of the proceedings before handing down a decision. The learned trial Judge did not give the appellants the opportunity of cross-examining the witnesses called by the defence. He did not allow the appellants to present their address before handing down his decision. Mr. Olalekan Ojo for the appellant is right that the denial of fair hearing to the appellants in this case is incurably fatal to the judgment of the trial court. The judgment is bound to be set aside.
It is irrelevant whether or not the judgment of the trial Judge made subsequently is correct as the proceedings leading to the judgment are null and void. See F.M.B.N. Ltd v. Adu (2000) 11 NWLR (Pt.678) 309 @ 318 – 319 paras H – B; Otapo v. Sunmonu (1987) 2 NWLR (Pt. 58) 587: Tukur v Government of Gongola State (1989) 4 NWLR (Pt.117) 517.
Having arrived at the conclusion that the judgment of the lower court is bound to be set aside, no useful purpose will be served by going on to consider the remaining issues for determination in this appeal. It is usual to order a retrial where there has been such an error of law or an irregularity in procedure which neither renders the trial a nullity nor makes it possible for the appeal court to say there has been no miscarriage of justice. See Abodundu v. The Queen (1959) 1 4 F.S.C. 70: Ezeoke v. Nwaebo (1988) 1 NWLR (Pt.72) 616 @ 629.
In the final result, this appeal is meritorious and is hereby allowed. The judgment of the High Court of Osun State sitting at Ilesa Judicial Division delivered on the 15th day of April 1999 is set aside. The case is hereby remitted back to the Chief Judge of Osun State for retrial by another Judge. The 1st – 4th and 7th respondents shall pay costs to the 1st and 3rd appellants assessed at N50,0000.00 (fifty thousand naira only).
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have had the privilege of reading in draft the well-articulated judgment of my learned brother, Chinwe E. Iyizoba, JCA. My brief comments are in concurrence with the reasoning and conclusion in the lead judgment and by way of emphasis.
By virtue of his position as an impartial arbiter a trial Judge has the sacred duty of determining disputes between parties not only speedily and efficiently but in a manner that ensures even-handed justice to both sides. The adage is that justice must not only be done it must manifestly be seen to have been done, A judge is expected to consider the evidence led by all the parties before him and determine in whose favour the imaginary scales of justice tilt. In the conduct of proceedings he must be seen to be fair to both sides.
In the case leading to this appeal there was uncontroverted evidence (as disclosed in the affidavits deposed to in support of the motion filed to set aside the judgment pages 80 – 88 of the supplementary record) that civil servants in Osun State embarked on industrial action in respect of the National Minimum Wage with effect from 13th April 1999. Consequently the various courts in the State including the court presided over by Falade, J. were not open for normal business. The appellants’ case was to come up on 14th and 15th April. The court did not sit on the 14th, although the parties and their counsel were present. The, uncontroverted affidavit evidence referred to earlier disclosed that the court sat on 15th April 1999 even though the industrial action was still on, closed the appellants’ case, took the defence and delivered a 23-paged typed judgment on the same day.
The test of fair hearing is the “reasonable man” test – whether an ordinary citizen sitting in the court room watching the proceedings would leave the court with the impression that justice has been done. See: Alsthom vs. Saraki (2005) 1 SC (Pt.1) 1 @ 14 lines 40 – 43 – 15 lines 1 – 5; Isiyaku Mohammed vs. Kano N. A. (1968) 1 ALL NLR 423; Ndukauba vs. Kolomo (2005) 1 SCC (Pt.1) 80 @ 90 lines 5 – 16; Olumesan vs. Ogundepo (1996) 2 NWLR (433) 628 @ 644 – 645 H – B.
In the instant case, there is no doubt that there had been delay on the appellants’ part in prosecuting their case. However having regard to the state-wide industrial action that was ongoing at the time, prudence and caution ought to have dictated that the appellants be given the benefit of the doubt for their absence in court that day. It was averred that no other High Court in Osun State sat on that day.
Even if the learned trial Judge decided to proceed with the case on that day to send a message to the appellants that their tardiness would no longer be tolerated, the matter ought to have been adjourned to afford them an opportunity to cross-examine the defence witnesses and/or address the court.
The haste with which the learned trial Judge concluded the trial and produced a 23-paged typed judgment on the same day suggests a pre-determined conclusion.
This view is further buttressed by the statement of His Lordship in the judgment appealed against, where immediately after summarising the evidence led in the case, he stated thus at page 58 of the record:
“I could have earlier on decided this case because, to me, the plaintiffs have not made any prima facie case, A prima facie case can apply in civil matters, If at the end of the plaintiff’s case in a civil matter the plaintiff has not led evidence on essential elements of the claim, the trial Judge may well feel that it is pointless continuing with the proceedings and he may, at that point, dismiss the plaintiff’s claims, in which case it would mean that the plaintiff did not make out a prima facie case.
…But having regards to the justice of the case, I changed my mind and received the case for the defence.” (Emphasis mine).
It is clear from the above that even before he commenced the proceedings of 15th April 1999 in the appellants’ absence, he was already convinced that their case had no merit. He merely went through the motion of listening to the defence to reach a predetermined conclusion. The contention of the appellants that the judgment must have been prepared in advance is not unreasonable in the circumstances of this case.
Where it is shown, as in this case that the learned trial Judge abdicated his role as an impartial arbiter and showed favour to one of the parties to the detriment of the other, the appellants’ constitutional right to fair hearing was clearly violated. The proceedings and judgment predicated thereon cannot be allowed to stand,
For these and the more elaborate reasons contained in the lead judgment, I also allow the appeal. I abide by the consequential orders therein including the order for costs.
MOORE A. A. ADUMEIN, J.C.A.: I had the privilege of reading in draft the judgment of my learned brother, Chinwe Engenia Iyizoba, JCA just delivered.
The principal prayer for the appellants is for an order of retrial of their case before another judge of the lower court. The law is settled that, generally, an appellate court will not make an order for retrial where:-
(a) the plaintiff or claimant has established his case by raising the probabilities thereof in his favour; or
(b) the order of retrial will enable the defendant to improve his position during the retrial to the detriment or prejudice of his opponent; or
(c) the litigation will be unnecessarily prolonged; or
(d) the proceedings were conducted by the trial court largely or substantially in conformity with rules of evidence and procedure; or
(e) there was no substantial irregularity in the conduct of the case.
See Mafimisebi & Anor. v. Ehuwa & Ors. (2007) 2 NWLR (Pt.1018) 385 at 435, paras. D – F. Also, an order of a retrial is inappropriate where the plaintiffs case had failed intoto – Oguntayo V. Adelafa (2009) 15 NWLR (Pt.1163) 150.
On the other hand, on order of retrial will readily be made by an appellate court where there has been a serious irregularity in the trial court – Oguntayo v. Adelafa (supra) at 194 – 195 and Star Paper Mill Ltd. & Anon v. Bashiru Adetunji & ors. (2009) 13 NWLR (Pt.1159) 647 at 668.
In the present case, it is not only a case of mere irregularity in procedure but a clear case of the learned trial judge overtly descending into the arena of the legal contest between the parties and out rightly denying the appellants their right to an unbiased and fair hearing. This is a proper case where an appellate court will not be reluctant to order a retrial. Since a retrial has been ordered, the law is settled that an appellate court should desist from making a statement that may tend to prejudice the new or fresh trial – Mafimisebi v. Ehuwa (supra) at 436, paras E – F.
It is for the foregoing reasons and the more comprehensive and elaborate reasons given in the lead judgment that I also allow this appeal.
I abide by all the consequential orders in the lead jdugment, including the order for costs.
Appearances
I. M. Alabi Esq.For Appellant
AND
F. Abiodun (Mrs.) for 1st – 4th and 7th respondents
R. Ojimi (Mrs.) CSC Osun State Ministry of Justice for the 5th and 6th respondentsFor Respondent
