MR. JOSEPH OGBESHE v. CHIEF SYLVANUS IDAM
(2013)LCN/6012(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of March, 2013
CA/C/208/2009
RATIO
JUDICIAL AUTHORITIES: WHAT DETERMINES THE JUDICIAL AUTHORITIES THAT COUNSEL OUGHT TO CITE IN SUPPORT OF THEIR ARGUMENTS IN COURT
I shall commence by stating that it is the facts and circumstances of each case that determines the judicial authorities that Counsel ought to cite in support of their argument in Court. See Adegoke Motors Nig. Ltd. vs. Adesanya (1989) 5 SCNJ 80 where Oputa, JSC stated at page 92 that:
“…the expression of every judge, including justices of this court, must be taken with reference to the facts and peculiar circumstances of the case on which he decides otherwise the law will get into extreme confusion. That is why in this judgment, I repeatedly said that the facts frame the issues for decision.”PER JOSEPH TINE TUR, J.C.A.
APPEARANCE: WHETHER IT IS COMPULSORY THAT A DEFENDANT IS SUPPOSED TO ENTER AN APPEARANCE UPON SERVICE OF THE WRIT OR OTHER ORIGINATING PROCESSES
The applicable civil Procedure Rules as at 19th June, 2006 when the suit leading to this appeal was instituted was the High Court (Civil procedure) Edict, 1987. Order 13 rules 1(1) of the Rules (supra) provided that:
“1(1) A defendant shall within the time limited in the writ or other originating process enter an appearance in the manner hereinafter prescribed.”
The entry of appearance by a defendant upon service of the writ or other originating process was a must with the use of the word “shall” in order 13 rule 1(1) of the Rules. The law prescribed what shall happen if a defendant served with a writ of summons or an originating process in a land matter neglected or failed to enter appearance within the time stipulated on the writ of summons or originating process. Order 14 rule 3(1) of the Rules (supra) reads as follows:
“3(1) Where an action is for recovery of land with or without any other related claim, and no appearance is entered within the time limited for appearance, the plaintiff shall be at liberty to have judgment entered for him.”PER JOSEPH TINE TUR, J.C.A.
COUNSEL: WHETHER THE APPEARANCE OF COUNSEL IS EQUAL TO APPEARANCE BY THE CLIENT
Appearance by Counsel is equivalent to appearance by his client. See Kehinde vs. Ogunbunmi (1968) NMLR 37. The relationship of a counsel and client is contractual. See Edozien vs. Edozien (1993) 1 SCNJ 166 at 189; Mosheshe vs. NSP Ltd. (1987) 2 NWLR (Pt.55) 110 at 119 and Adewunmi vs. Plastex Nig. Ltd. (1996) 6 SC 214 at 223.PER JOSEPH TINE TUR, J.C.A.
SUBSTANTIAL JUSTICE IS MORE IMPORTANT THAN TECHNICAL JUSTICE
In every situation the courts should endeavour that suits or applications are heard on the merit rather than to employ technicalities to shut out litigants or their learned Counsel from participating in the proceedings as happened in this case. In Collins vs. Vestry of Paddington (1880) 5 Q.B.D. 590. Thesiger L.J., held at page 381 that:
“I agree that until a judgment has been arrived at upon the merits, an extension of time may be allowed for rectifying a mistake or over-sight. Up to that time both parties may be considered as standing upon an equal footing: the questions between are still open, and it is doubtful which of their opposing contention is correct: each party has a right to have the dispute determined upon the merits, and courts should do everything to favour the fair trial of the questions between them. Blunders must take place from time to time, and it is unjust to hold that because a blunder during interlocutory proceedings has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits. All such cases of blunder may be remedied by payment of costs or the imposition of terms and conditions.”PER JOSEPH TINE TUR, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
MR. JOSEPH OGBESHE Appellant(s)
AND
CHIEF SYLVANUS IDAM Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High court of Justice, Ogoja Judicial Division, Cross River State delivered on Monday, 2nd day of July, 2007 by His Lordship, Michael Edem, J., wherein judgment was entered in favour of the Respondent against the appellant in a dispute over land at page 50 fines 21 to page 51 lines 1-9 of the printed record as follows:
“Wherefore I enter judgment for the plaintiff as follows:
1. I declare that the piece of parcel of land lying situate along Okendi Road, Ogboja Ogoja and bounded on the North by Federal Science College fence, South by the land of Mr. Ipuole Udey; East by Mr. Boniface Ellah and West by Mr. Okoh Young and more particularly delineated by beacon stone numbers CRN78408, CRN 78409, CRN 784010 and CRN 784011 was duly leased to the plaintiff by the Ogboja community.
2. AN ORDER of perpetual injunction lies restraining the Defendant, his agent, servants, or privies from further trespassing on the said land.
3. I assess and award the sum of N250,000.00 as general damages for trespass.
4. Cost of N5,000.00 in favour of the plaintiff.
This is my judgment.”
Being aggrieved the appellant filed his Notice of Appeal on 25th day of November, 2008 pursuant to an order of this Court made by way of extension of time on Monday, 13th day of November, 2008. Four grounds accompanied the Notice of Appeal. The Appellant’s brief was filed out of time on 28th day of February, 2012. Leave was granted that the brief shall be deemed properly filed and served on 21st May, 2012. Learned counsel to the Appellant identified two issues for determination:
“(i) whether the failure of the learned trial Judge in dispensing with the appellant’s motion to file his statement of defence and other processes out of time and the failure to issue hearing notice on the appellant before proceeding to deliver judgment has not occasioned a substantial miscarriage of justice and a denial of the appellant of his right to fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria?
(ii) Whether the failure of learned trial Judge to properly evaluate the evidence before him in a land matter before coming to judgment has not occasioned a miscarriage of justice?”
The Respondent’s brief filed on 18th day of October, 2012 was deemed properly filed and served on the appellant on 8th November, 2012. The Respondent’s learned Counsel identified the following issues for determination:
“1. Whether in view of the conduct of the appellant after being served with the writ of summons up to the delivery of judgment, it can be said that his right to fair hearing was breached?
(2) Whether there was a proper evaluation of the evidence conducted.”
When the appeal came up for hearing on 7th day of February, 2013 each Counsel adopted his client’s brief of argument. Before proceeding I shall set out the facts that have led to this appeal. The Respondent took out a writ of summons on the 19th day of June, 2000 seeking the following declaratory relief against the appellant:
“12. The defendant is still adamant and claims to have a right over the land leased to the plaintiff by the community.
WHEREOF the plaintiff claims against the defendant as follows:
(1) A DECLARATION that the piece or parcel of land lying and situate along Okendi Road, Ogboja, Ogoja and bounded on the North by Federal Science College fence, South by the land of Mr. Ipuole Udey; East by Mr. Boniface Ellah; and West by Mr. Okoh Young and more particularly delineated by beacon stone numbers CRN 78408, CRN 78409, CRN 784010 and CRN 784011 was duly leased to the plaintiff by the Ogboja Community.
(2) AN ORDER of perpetual injunction restraining the defendant his agents, servants or privies from further trespassing on the said land.
(3) N1,000,000.00 being general damages for trespass.”
The writ and statement of claim were served on the appellant on the 20th day of June, 2006 but he defaulted or neglected to file a memorandum of appearance nor a statement of defence till the matter came before the Court on 11th October, 2006 for hearing. The appellant was not in Court; neither was he represented by Counsel of his choice on the day fixed for hearing. Learned Counsel to the Respondent made an oral application for a date to prove his client’s case and the matter was adjourned to 5th December, 2006 for that purpose. The case however came up on 7th day of May, 2007. On that day Barrister M. Ojua, Esq. of Counsel to the Respondent intimated the Court that neither himself nor his client were aware of the case coming up that day. That he had just seen it on the cause list. Counsel made an oral application for a date to proceed with hearing on 11th June, 2007. Barrister E. Idom Mophy leading P. Ishiabo, Esq. for the appellant did not object to the application. The matter was accordingly adjourned to 11th day of June, 2007 for the Respondent to prove his case. When the case came up on that day Barrister Ojua, Esq. of Counsel to the Respondent objected to the appearance of Barrister E. Idom-Mophy of Counsel to the appellant citing Order 13 of the High Court (Civil Procedure) Rules, 1987. Counsel argued that in the absence of a memo of appearance and a statement of defence Idom-Mophy,
Esq. could not represent the appellant and conduct the proceedings. Learned counsel’s objection was conceded by Barrister Idom-Morphy, Esq. The Court ruled that, “I order no appearance for the Defendant in the circumstance. “See page 43 lines 4 – 5 of the printed record. The Respondent testified as pw1 and the matter was adjourned to the 12th day of June, 2007 for continuation. On this day Umari Wofor gave evidence as PW2. No Counsel represented the appellant. The matter was adjourned to 2nd day of July, 2007 for judgment. On that day Barrister M. Ojua and P. Ekwebelem represented the Respondent while Idom-Mophy, Esq. appeared for the appellant. I shall reproduce what transpired in Court on that day:
‘Idom-Mophy: We have an application but my learned friend has not been served yet. We only gave him an advanced copy. May we pray to withdraw an advanced copy of the application.
Ojua, Esq.: No objection.
Idom-Mophy: May we withdraw the application filed on the 15th June, 2007 seeking to arrest this judgment.
Court: There being no objection and the application be and is hereby struck out. So I now read the judgment.
My order.
Sgd.
Hon. Justice Michael Edem
2nd July, 2007.”
APPELLANT’S ARGUMENT: ISSUE ONE:
Learned Counsel to the appellant submitted that even though Idom-Mophy, Esq. was in Court on 11th day of June, 2007 and conceded to the objection raised against his appearance by M. Ojua, Esq. of Counsel the appellant should have been personally served notice before commencement of hearing. This failure infringed on the appellant’s right to fair hearing. Learned Counsel cited the following authorities in argument, namely, Okogi vs. Okoh (2010) 9 NWLR (Pt.1199) 311 at 325; F.B.N Plc vs. S.T.S.R. Ind. Ltd. (2010) 15 NWLR (Pt.1216) 247 at 303; Ene vs. Asikpo (2010) 10 NWLR (Pt.1203) 477 at 514-515 and Utih vs. Onoyiuwe (1991) 1 NWLR (Pt.166) 166 at 206; Omomeh vs. Kolawole (2008) 14 NWLR (Pt.1106) 180. It was further submitted by the appellant’s Counsel that the failure of the learned trial Judge to consider all pending applications before hearing commenced occasioned a miscarriage of justice. Counsel cited NITEL Plc vs. Mayaki (2007) 2 NWLR (Pt.1023) 173 at 177; UPS Ltd. vs. Ufot (2006) 2 NWLR (Pt.963) 23; Okereke vs. Ibe (2010) All FWLR (Pt.516) 516. Counsel contended that the right to cross examine a witness was an aspect of fair hearing under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999. The Court could not deny a party that right. Reference was made to Ogolo vs. Fubara (2003) FWLR (Pt.169) 1285. Learned counsel urged that issue one be resolved in favour of the appellant.
The Respondent’s Counsel replied that every opportunity was given the appellant to appear and defend the suit hence he was served with the writ of summons and statement of claim. That as no memorandum of appearance nor a statement of defence was filed by the appellant up to the time the matter was set down for hearing but counsel appeared in court, it could not be argued that appellant’s right to fair hearing had been breached. Counsel cited Eke vs. Ogbonda (2007) 1 MJSC 160 at 181; Onah vs. Okom (2012) 8 NWLR (Pt.1301) 169 at 190-192 in support of the argument. Learned Counsel drew this court’s attention to the fact that whatever applications were filed on behalf of the appellant had been withdrawn by Counsel nothing precluded the learned trial Judge from delivering judgment. Besides, learned Counsel to the appellant at the Court below did not draw the Court’s attention to any pending application for extension of time to file a memo of appearance and a statement of defence. Counsel cited Zaboleu International Ltd. vs. Omogbehin (2005) 17 NWLR (Pt.953) 200; Ekpeto vs. Wanogho (2005) 2 MJSC 67; Oforkire vs. Maduike (2003) 5 NWLR (Pt.812) 155 at 182. It was contended that by virtue of Order 13 and 14 rule 3(1) of the High Court (Civil Procedure) Rules, 1987 the Respondent was entitled to judgment in the absence of a memo of appearance and a statement of defence. Learned Counsel urged that issue one should be resolved against the appellant.
ISSUE TWO:
Learned Counsel to the appellant’s submission on issue two is that the learned trial Judge did not properly evaluate the evidence adduced by the Respondent before entering judgment in his favour notwithstanding the absence of the appellant nor counsel at the trial. Learned counsel cited Kopek Construction Ltd. vs. Ekisola (2010) 5 NWLR (Pt.1182) 618 at 646; Odunukwe vs. Ofomala (2010) 18 NWLR (Pt.1225) 404 at 445. Counsel argued that even in the absence of a statement of defence the onus of proving title to any disputed land rested on the claimant. Learned Counsel urged that issue two be resolved in favour of the appellant.
The Respondent’s learned counsel replied that evaluation of evidence entails giving reasons for rejecting one piece of evidence and accepting the other. That it is the primary duty of the trial court to evaluate and ascribe probative value to evidence adduced at the trial, citing Alake vs. The State (1992) 9 NWLR (pt.265) 260; Bello vs. State (2007) All FWLR (Pt.396) 702 at 713. However as there was no evidence from the appellant, minimal proof by the Respondent was required. Reference was made to Buraimoh vs. Bamgbose (1989) 3 NWLR (Pt.109) 352. Learned counsel drew this court’s attention to the evidence of the Chairman of the Land Owning Community. That he testified in favour of the Respondent. The learned trial Judge also found for the Respondent. Counsel urged that issue two be resolved against the appellant and the appeal should be dismissed.
I shall consider the two issues together since a resolution of issue one in favour of the appellant will have adverse effect on issue two. I shall commence by stating that it is the facts and circumstances of each case that determines the judicial authorities that Counsel ought to cite in support of their argument in Court. See Adegoke Motors Nig. Ltd. vs. Adesanya (1989) 5 SCNJ 80 where Oputa, JSC stated at page 92 that:
“…the expression of every judge, including justices of this court, must be taken with reference to the facts and peculiar circumstances of the case on which he decides otherwise the law will get into extreme confusion. That is why in this judgment, I repeatedly said that the facts frame the issues for decision.”
The uncontested fact is that the appellant was served the writ of summons and statement of claim on the 20th day of June, 2006 but defaulted in entering a memorandum of appearance nor in filing a statement of defence. The applicable civil Procedure Rules as at 19th June, 2006 when the suit leading to this appeal was instituted was the High Court (Civil procedure) Edict, 1987. Order 13 rules 1(1) of the Rules (supra) provided that:
“1(1) A defendant shall within the time limited in the writ or other originating process enter an appearance in the manner hereinafter prescribed.”
The entry of appearance by a defendant upon service of the writ or other originating process was a must with the use of the word “shall” in order 13 rule 1(1) of the Rules. The law prescribed what shall happen if a defendant served with a writ of summons or an originating process in a land matter neglected or failed to enter appearance within the time stipulated on the writ of summons or originating process. Order 14 rule 3(1) of the Rules (supra) reads as follows:
“3(1) Where an action is for recovery of land with or without any other related claim, and no appearance is entered within the time limited for appearance, the plaintiff shall be at liberty to have judgment entered for him.”
From 28th June, 2006, namely, eight days after service of the writ and statement of claim the Respondent had the liberty in law and in fact to have applied for judgment under the provisions of order 14 rule 3(1) of the High Court (Civil Procedure) Edict, 1987 since the appellant had not caused any memorandum of appearance to be entered on his behalf in accordance with the provisions of the Rules (supra). In my humble view the phrase, “…the plaintiff shall be at liberty to have judgment entered for him,” employed by the draftsman under order 13 rule 3(1) of the Rules (supra) connotes the absence of a legal duty on the plaintiff to apply or forego that liberty or privilege of asking for judgment as the case may be. In other words, discretion vests on the plaintiff to ask or refrain from asking for judgment where a defendant defaulted in entering a memorandum of appearance in a land claim. In John Salmond, jurisprudence, 10th edition, 1947, edited by Granvile Williams, page 239 it is said that:
“The sphere of my legal liberty is that sphere of activity within which the law is content to leave me alone.”
For instance in Chapman vs. Honig (1963) 2 All E.R. 513 it was held that where the defendant had the liberty to terminate the plaintiff’s tenancy, he did not owe a duty to the plaintiff not to do so but in a lawful manner. When liberty is conferred on a party to do or not to do certain things, whenever that party decides to act, the prescribed procedure must be followed. Order 14 rules 7 of the Rules (supra) provides as follows:
“7. Where a defendant or respondent to an originating summons to which an appearance is required to be entered fails to appear within the time limited, the plaintiff or applicant may apply to the Court or a Judge in Chambers for an appointment for the hearing of such summons and upon a certificate that no appearance has been entered, the Court or Judge shall appoint a time for the hearing of such summons, upon such conditions (if any) as it or he shall think fit.”
Order 27 rule 7-8 of the Rules (supra) further provides as follows:
“7. Where the plaintiff makes against a defendant two or more of the claims mentioned in rules 2 to 6, and no other claim then, if that defendant fails to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed as aforesaid for service of the defence, have entered against that defendant such judgment in respect of each such claim as he would be entitled to under those rules if that was the only claim made, and proceed with the action against the other defendant, if any.
8(1) Where the plaintiff makes against a defendant or defendants a claim of a description not mentioned in rules 2 to 6, then if the defendant or all the defendants (where there are more than one) fails or fail to serve a defence on the plaintiff, the plaintiff may, after the expiration of the period fixed as aforesaid for service of the defence apply to the Court for judgment, and on the hearing of the application the Court shall give such judgment as the plaintiff appears entitled to on his statement of claim.
(2) Where the plaintiff makes such a claim as is mentioned in paragraph (1) against more than one defendant then, if one of the defendants makes defaults mentioned in that paragraph the plaintiff may:-
(a) If his claim against the defendant in default is severable from his claim against the other defendants, apply under that paragraph for judgment against that defendant, and proceed with the action against the other defendants; or (b) Set down the action on motion for judgment against the defendant in default at the time when the action is set down for trial or is set down on motion for judgment against the other defendants.
(c) An application under paragraph (1) shall be by summons or motion on notice.”
A combined reading of the provisions of Order 14 rule 3(1) and 7 read together with Order 27 rule 6(1)(2), 7 and 8(1), (2)(a)(b) and (c) of the Rules (supra) will reveal that whether a defendant defaults, fails or neglects to enter an appearance nor file a statement of defence within the stipulated time the plaintiff is to apply to the Court by way of summons or motion on notice supported by affidavit and a certificate that no appearance has been entered praying for jugment. The learned trial Judge will fix a date for hearing the summons or motion upon such conditions (if any) as it or he shall think fit. The question is: how were applications made to the court or Judges in chambers in the High Courts of Justice in Cross River State under the 1987 Rules?
Order 8 rule 2(1) of the Rules (supra) reads thus:
“2(1) Where by these Rules any application is authorized to be made to the Court or a Judge in Chambers or a Registrar, such application may be made by motion.
(2) The Registrar shall make up, for each day on which there are motions to be heard, a motion list, on which he shall enter the names of each cause in which a motion is made, the party moving, and the terms of the order sought by him.
(3) Every motion shall be supported by affidavit setting out the grounds on which the party moving intends to rely; and no affidavit shall be used at the hearing unless it is duly filed.
(4) Where service of a motion is required by these rules or directed by the Court or Judge, such motion shall be served together with all affidavits on which the party moving intends to rely. xxxxxxx
7(1) No motion shall be made without previous notice to the parties affected thereby.
(2) Notwithstanding paragraph (1), the Court if satisfied that to delay the motion till after notice is given to the parties affected would entail irreparable damage or serious mischief to the party moving, may make an order exparte upon such terms as to costs or terms as to costs or otherwise and subject to such undertakings if any, as the justice of the case demands.”
Legally speaking, Idom-Mophy Esq. had abruptly withdrawn his appearance from the suit without notice to the appellant who was absent in Court. The learned trial Judge did not consider that fact before proceeding to hearing. Appearance by Counsel is equivalent to appearance by his client. See Kehinde vs. Ogunbunmi (1968) NMLR 37. The relationship of a counsel and client is contractual. See Edozien vs. Edozien (1993) 1 SCNJ 166 at 189; Mosheshe vs. NSP Ltd. (1987) 2 NWLR (Pt.55) 110 at 119 and Adewunmi vs. Plastex Nig. Ltd. (1996) 6 SC 214 at 223.In Chief Anthony I. Ogida vs Dr. G.A. Garrick (1978) 12 FCA 267 learned Counsel suddenly with leave of Court withdrew his appearance during examination-in-chief of his client on the grounds that his answers were contrary to instructions. The plaintiff continued and concluded his evidence in chief and was cross-examined. When called upon to produce his other witnesses the plaintiff replied that they had left the court premises. The matter was adjourned to the next day being 20th day of July, 1976. On that day the plaintiff did not appear but sent a medical certificate that he was not fit to proceed till 22nd day of July, 1976. The learned trial Judge discountenanced the medical report, and closed the plaintiff’s case. Further hearing was adjourned to 21st day of July, 1976. The plaintiff did not attend Court. The defendant gave evidence and called a witness. His counsel addressed the Court. The learned trial Judge dismissed the plaintiff’s case on 29th July, 1976. One of the grounds argued in the court of Appeal, Benin Division was that the learned trial Judge was wrong in law for not adjourning the case to enable the appellant retain another Counsel of his choice after his Counsel withdrew from the case with leave of the Court. The Court of Appeal recognized the right of Counsel, for good cause shown, to withdraw from representing a client even in the middle of the case, citing paragraph 29 of the Rules of Professional Conduct in the Legal Profession: issued by the General Council of the Bar as per Government Notice No.1977 published in the official gazette of the Federation of Nigeria, No. 107, Vol .54, of 14th December, 1967. The Court of Appeal held at pages 276-277 as follows:
‘The need for due notice to the client and allowing him sufficient time to retain another solicitor are noteworthy.
In the instant case the reason given for the withdrawal of counsel in the Court below was that the evidence the appellant was giving contrary to the instructions which he had given to counsel and upon which he filed his pleading. It was not argued before us whether or not this ground was sufficient for Counsel to withdraw. It may well amount to “reasons of honour and self respect” or to the client persisting, despite Counsel’s remonstrance, to present a frivolous case. We would better not express an opinion on this aspect of the case. What, however, strikes us as pretty clear is that the appellant had not, from the records due notice from the counsel before withdrawal. It all happened when Counsel was leading the appellant in-chief. Counsel applied to the learned Judge and he gave him leave to withdraw. we think that as the learned Judge chose to interfere in the matter which was otherwise a matter between counsel and client he ought to have insisted upon the Counsel giving due notice to his client or, in alternative, he should have adjourned the case suo motu after discharging the Counsel in order to enable the appellant brief another Counsel. We would, however, agree with the learned Counsel for the respondent, Mr. Giwa-Amu, that the failure to insist upon reasonable notice or to adjourn immediately after discharging the solicitor did not occasion a miscarriage of justice. First we notice that as soon as the appellant concluded his evidence, he applied for adjournment and it was granted. Secondly, as Mr. Giwa-Amu rightly pointed out, the plaintiff’s case as on the pleadings and confirmed by his evidence was entirely without merit.”
In every situation the courts should endeavour that suits or applications are heard on the merit rather than to employ technicalities to shut out litigants or their learned Counsel from participating in the proceedings as happened in this case. In Collins vs. Vestry of Paddington (1880) 5 Q.B.D. 590. Thesiger L.J., held at page 381 that:
“I agree that until a judgment has been arrived at upon the merits, an extension of time may be allowed for rectifying a mistake or over-sight. Up to that time both parties may be considered as standing upon an equal footing: the questions between are still open, and it is doubtful which of their opposing contention is correct: each party has a right to have the dispute determined upon the merits, and courts should do everything to favour the fair trial of the questions between them. Blunders must take place from time to time, and it is unjust to hold that because a blunder during interlocutory proceedings has been committed, the party blundering is to incur the penalty of not having the dispute between him and his adversary determined upon the merits. All such cases of blunder may be remedied by payment of costs or the imposition of terms and conditions.”
I agree with the submission of learned Counsel to the Respondent that it was the duty of Idom-Mophy, Esq. to draw the attention of his Lordship to any pending applications. Having withdrawn the pending applications which were struck out the coast was clear for the learned trial Judge to deliver the judgment now subject of this appeal. It is not frequent to come across this kind of cases and novel procedure. But whenever procedural blunders occasion a miscarriage of justice, the Courts must rise up to the occasion and find a means of remedying the situation. In Chapman vs. Honig (supra) Lord Denning, M.R., held at page 518 that:
“The truth is, however, that this is a new case. None like it has ever come before the Courts so far as I know. But that is no reason for us to do nothing. We have the choice before us. Either to redress a grievous wrong, or to leave it unremedied. Either to protect the victim of oppression, or to let him suffer under it. Either to uphold the authority of the taw or to watch it being flouted. Faced with this choice I have no doubt what the answer should be. We cannot stand idly by. The law which compels a witness to give evidence is in duty bound to protect him from being punished for doing it…”
To abruptly debar a legal practitioner engaged by a litigant from participating in ongoing proceedings in Court on the grounds of failure to enter a memorandum of appearance or deliver a statement of defence within the stipulated time is unheard of; it is novel. If this practice is upheld, it will spell unimaginable disaster for Legal Practitioners in pursuit of justice for their clients in Nigerian Courts. The authority of the law must be upheld in favour of the oppressed.
My humble opinion is that since the Respondent did not comply with any of the provisions of Order 8 rules (1) – (3), 2(1)(2) – 7(1); 14 rule 3(1), 7 and Order 27 rule 6, 7 of the High Court (Civil Procedure) Rules, 1987 the oral application was not initiated by due process of law, and upon fulfillment of all conditions precedent to the exercise of jurisdiction. The failure to comply with the Rules rendered the oral application incompetent and was fatal to the proceedings conducted from 11th day of June, 2007 when PW1 testified up to delivery of judgment on 2nd July, 2007. The proceedings were nullities however well conducted and decided. The defects were extrinsic to the adjudication. see Madukolu vs. Nkemdilim (1962) 1 All WLR 587 at 595; Adeigbe & Anor. vs. Kusimo & Ors. (1965) NMLR 284 at 287; Johnson vs. Osaye (2001) FWLR (Pt.68) 1197 at 1209-1210.
I declare the proceedings and the Judgment a nullity. The suit is remitted to another judge for hearing as may be determined by the learned Chief Judge of Cross River State. Parties to bear their respective costs.
MOHAMMED LAWAL GARBA, J.C.A: My learned brother, J.T. Tur, JCA, has as usual, meticulously considered the two issues that arise for determination in the lead judgment just delivered and which I had the opportunity of reading before today. I completely agree with the views expressed and the reasons for the conclusions reached on the issues as set out therein.
By way of support, I wish to say that for the learned counsel for the Respondent to insist that the Appellants counsel could not appear in the case merely because he did not file a memorandum of appearance in compliance with the Rules of the High Court and the High Court agreeing to “order no appearance for the defendant” when the counsel was physically before that court, was with due respect to the High Court, was an elevation of the Rules of procedure the breach of which did not in any reasonably prejudice the Respondent, to an unimaginable level of being sacrosanct. It is known now that no matter what language was employed in drafting the Rules of a court, their primary object is to facilitate and not defeat the course of justice by being employed to punish parties for even the most infinitesimal mistakes committed by their counsel in the conduct of their cases. Albeit the Rules of court are made to be obeyed by both the court and the parties, they are all the same mere handmaids and not masters to the court and to always read and apply the rules in the absolute without regard to the justice of a case, would only encourage crass technicality at the expence of the merit of a case which they are meant to serve. The Rules of any court are certainly not intended to deny the parties the opportunity to be represented and to present their case before the court due to mere irregularity or errors committed by counsel. See Solanke v Somefun (1974) 1 SC, 141 at 148; Nneji v Chukwu (1988) 3 NWLR (81) 184 at 206; UTC v Pamotei (1989) 2 NWLR (103) 244; Kano ile Plc v G & H (Nig) Ltd. (2002) 2 NWLR (751) 420 at 469.
I will say that the practice whereby a counsel would be prevented from appearance before a court for a party in a case on the ground only that he did not file a memorandum of appearance is clearly inequitable, unfair and therefore undesirable and cannot be justified under the Rules of any court created by the constitution which guaranties the right to fair hearing.
For the above and all the sound reasons set out in the lead judgment, I join in allowing the appeal in all the terms thereof.
ONYEKACHI A. OTISI, J.C.A: I have had the opportunity of reading in draft the Judgment just delivered by my learned Brother, Joseph Tine Tur JCA. I am in complete agreement with his consideration of the issues formulated for determination; and, with the conclusions, allowing the appeal. In support of this decision, I would only add a few comments.
The right to fair hearing is a fundamental constitutional right guaranteed by Section 36 of the Constitution of the Federal Republic of Nigeria 1999, as amended. Fair hearing is a hearing which is fair to all parties to the suit, giving each one an opportunity to be heard, whether the party be the plaintiff, the defendant, the prosecution or the defence. A trial conducted in breach of fair hearing vitiates such proceedings, rendering same null and void. See: Idakwo v. Ejiga (2002) 12 MJSC 81; Samba Petroleum Ltd. v. IMB Plc. (2010) 5 – 7 (Pt.1) MJSC 103.
In the same vein, a matter determined on technicalities, which shuts out the litigants or their Counsel, cannot be said to comply with the principle of fair hearing. In his contributory Judgment in YUSUF V. ADEGOKE & ANOR (2007) 4 S.C. (PT.1) 126, Niki Tobi JSC said:
“What is technicality? In Adedeji v. The State (1992) 4 NWLR (Pt.234) 248, I said at page 265:
“I realize that courts of law seem to be using the word technicality out of tune or out of turn, vis-a-vis the larger concept of justice. In most cases, it has become a vogue that once a court is inclined to doing substantial justice by deflecting from the rules, it quickly draws a distinction between justice and technicality so much that it has become not only a cliche but an enigma in our jurisprudence. In most cases when the courts invoke the substantial justice principle, they have at the back of their minds the desire to put to naught technicalities which the adverse party relies upon to drum drown an otherwise meritorious case. We seem to be overstretching the technicality concept. We should try to narrow down the already onerous and amorphous concept in our judicial process. A technicality in a matter could arise if a party is relying on abstract or inordinate legalism to becloud or drown the merits of a case. A technicality arises if a party quickly takes an immediately available opportunity, however infinitesimal it may be, to work against the merits of the opponent’s case. In other words, he holds and relies tenaciously unto the rules of court with little or no regard to the justice of the matter. As far as he is concerned the rules must be followed to the last sentences, the last words and the last letters without much ado, and with little or not regard to the injustice that will be caused the opponent.”
My learned brother in the lead judgment has aptly stated that to abruptly debar a legal practitioner engaged by a litigant from participating in ongoing proceedings in Court on rounds of failure to enter a memorandum of appearance or deliver a statement of defence is indeed novel, and, if I may add, strange. It also has led to unfairness in the proceedings.
Where proceedings and judgment of a lower court are vitiated by unfairness, the said proceedings and judgment amount to a nullity and may be set aside either by the court that gave it or by an appellate court. See: Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290; Deduwa v. Okorodudu (1976) 9 -10 SC 392; Amadi v. Aplin (1972) 4 SC 228; Sadau v. Kadir (1956) 1 FSC 39 – 41.
For these reasons, and for the fuller reasons given in the lead judgment, I also declare that the proceedings and judgment of the lower court amount to a nullity. I abide with the Orders made in the lead judgment.
Appearances
Mba E. Ukweni, Esq.
M.T. Out, Esq.
P.A. Okpoke, Esq.
Mba O. Mba, Esq.
E.A. Otu (Miss);
E.J. Amatey, Esq.
E.O. Abba, Esq.For Appellant
AND
O.U. Orisaeke, Esq.For Respondent
