MR. NICOLAS MADUEKE v. MICHAEL MADUEKE
(2011)LCN/4642(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 21st day of June, 2011
CA/E/155M/2008
RATIO
PRELIMINARY OBJECTION: INSTANCES WHERE A PRELIMINARY OBJECTION WOULD BE DEEMED ABANDONED
A party filing a brief must seek leave of court to move the notice of objection before the hearing of the appeal proper. Otherwise it would be deemed abandoned. See OHENHEN V. UHUMUAVBI (1995) 6 NWLR (PT 401) 166 and NSIRIM V. NSIRIM (1990) 3 NWLR (PT 138) 2851. See also ADENIYI V. AKINTAN (2011) 5 NWLR (PT 1241) 554 at 570 where this court per MUKTHAR JCA noted that:- “Preliminary Objection must be argued before the hearing of the appeal. This is because it 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 of appeal, the preliminary objection is deemed to be effectively abandoned by the failure of the Learned Counsel for the Respondent’s to argue it immediately before the hearing of the appeal.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
RECORD OF APPEAL: WHETHER IN THE ABSENCE OF ANY FORMAL COMPLAINT AS TO THE CORRECTNESS OR COMPLETENESS OF A RECORD OF APPEAL IT WILL BE BINDING ON THE APPELLATE COURT AS WELL AS THE PARTIES
It is not in doubt that there is no formal complaint before this court by either of the parties to this appeal as per the correctness, completeness or otherwise of the record of appeal. Record of appeal (duly settled by parties) speaks for themselves and where there is no challenge on their authenticity or correctness by either of the parties in an appeal, the court as well as the parties concerned are of necessity, bound to accept and act on them as a true and correct reflection on record of what transpired in the lower court, see IKOLI VENTURES LTD V. SHELL PETROLEUM DEVELOPMENT COMPANY (NIG) LTD (2008) 12 NWLR (PT 1101) 422; SOMMER V. FEDERAL HOUSING AUTHORITY (1992) SCNJ 73. ORUGBO V. UNA (2002) FWLR (PT 127) 1024. In OJEME V. MOMODU II (2) (1995) 6 NWLR (PT 403) 583. It was held that it is the duty of parties to an appeal to ensure that the Record contains all documents they intend to use for the appeal. See also JULIUS BERGER (NIG) LTD VS FRIDAY FEMI (1993) 5 NWLR (PT 293) 612 at 619 where this court per Achike JCA (as he then was) held that:- “It is trite law that in the absence of any formal complaint, the Appellate Court and the parties are bound by the contents of the record of appeal” In OGILI OKO MEMORIAL FARMS LTD V. N.A.C.B. LTD (2008) NSC QR (PT 2) 1057 at 1074, the Supreme Court held inter alia that:- “Any person who is contending that the record of proceedings before the appellate court is not a fair record of what happened at the court of first instance must first formally impeach the record of proceedings. Where the record of proceedings is not formally impeached, it is not open to the appellate court to speculate that other things happened in the trial court which were not recorded in the record of proceedings….” See also DONATUS IDAM V. ALEX IDEMYOR MENE (2009) 17 NWLR (PT 1169) 74. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
DUTY OF COURT: WHETHER AN APPELLATE COURT CAN SPECULATE ON WHAT SHOULD BE IN THE RECORD OF AN APPEAL THAT IS NOT CONTAINED THEREIN
It is not for the appellate court to speculate on what should be in the record of appeal that is not contained therein. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
SINE DIE ADJOURNMENT: NATURE OF A MATTER ADJOURNED SINE DIE
To my mind, where a matter is adjourned sine die, it goes into a deep slumber until it is shaken into awareness by the issuance of a hearing notice to the parties concerned. PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
DUTY OF COURT: DUTY OF COURT WHEN TAKING OVER A MATTER THAT WAS HITHERTO ADJOURNED SINE DIE
Having taken over the matter which incidentally was hitherto adjourned sine die. The learned lower court Judge ought to, as a matter of constitutional imperative order fresh hearing notice to be served on all the parties concerned with the appeal. To my mind, it is an elementary procedure that should not be taken for granted or glossed over because of the unpalatable consequence of declaring the whole preceding a nullity. See SKENCONSULT V UKEY (1981) 1 SC 6 at 26 and JULIUS BERGER (NIG) LTD V FRIDAY FEMI Supra at page 621 where this court held that:- “The issue of failure to serve processes to all the parties to a suit in which the trial court heard the case in the absence of the parties offends the maxim audi altarem partem which is today guaranteed under Section 33 (1) of the 1979 constitution of Nigeria which in turn entrenches the right to fair hearing. A violation of a person’s right to a fair hearing arising from failure to serve process where such service is obligatory is not merely an irregularity but a fundamental error of the proceedings. It is sometimes referred to as fundamental vice sufficient enough to undermine the purported decision of a court reached in such circumstances.” PER SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.
JUSTICES
AMINA ADAMU AUGIE Justice of The Court of Appeal of Nigeria
AYOBODE LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
MR. NICOLAS MADUEKE Appellant(s)
AND
MICHAEL MADUEKE Respondent(s)
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A. (Delivering the Leading Judgment): The Appellant in this appeal is Nicholas Madueke, a farmer who resides in Amuda village Umunze. He is of the same father with the Respondent, Michael Madueke. Some time in 1989, their father’s landed property was shared amongst his children but the (Ala Mgboko) i.e the land in dispute was by agreement reserved to be shared between the Appellant and the Respondent at a later date. Because the Respondent was not permanently resident in the village, the Appellant was farming on the land. Subsequently the Respondent made series of efforts to have the land shared between them as earlier agreed but the Appellant frustrated every such move, but rather told the Respondent in 1992 that the Umuohaike and Umuezeala families were trying to encroach on the said Ala Mgboko. The Respondent doubted this assertion and insisted that it would be better for them to share the land so that they can defend the land individually or call for the help of each other if need be. He also suggested an oath of allegiance (IGBA NDU) between the two of them but the Appellant refused the suggestions. Feeling frustrated the Respondent told the Appellant that he was not going to involve himself in any land dispute with him and he went back to Adazi Nnuku where he works. He later heard that the Appellant wanted to sell part of the said Ala Mgboko to a third party. He made further demands for the land to be shared but the Appellant refused. The Respondent then filed an action against the Appellant (Nicholas Madueke) at Umunze Customary Court on Suit No. CCU/25/94 wherein he claimed as follows:-
1. An order of court mandating the Defendant to share this Mgboko land with the Plaintiff.
2. An order of court asking the Defendant to stop any work on the land until the sharing is done.
3. Any further orders or order the Honourable Court may deem fit.
The Appellant in the course of hearing of the suit as shown at page 8 and 9 of the record, subsequently counter claimed against the Respondent as follows:-
1. “An order of court compelling the Plaintiff to forfeit his right on Ala Mgboko since he is only interested in it as an asset but not (Sic) want to inherit its liabilities.
2. Immediate order to countermand the injunction imposed in this Ala Mgboko against the defendant.
3. Two thousand naira (N2,000) for cost and wastes.
4. Any order necessary.”
In its judgment delivered on 7/22/94, the Customary Court Umunze, refused the Respondent’s claim but granted the Appellant’s counterclaim.
The Respondent being aggrieved by the verdict appealed to the High Court, Ekwulobia, Anambra State which in a judgment delivered in 26/1/2007 allowed the appeal on the following terms:-
Judgment is hereby entered in favour of the Plaintiff/Appellant in this appeal based on the authorities cited above as follows:-
(1) “The judgment of the Customary Court delivered on 7/11/94 is hereby set aside.
(2) The defendant are (sic) ordered to share Mgboko land with the Plaintiff.
(3) The Defendant is also to stop further work on the said land until the sharing has been done.”
Being dissatisfied with the said judgment, the Appellant has now appealed to this court vide a Notice of appeal dated 19/2/2007 and containing four grounds of appeal. Both parties subsequently filed and exchanged briefs of argument. The Appellant’s brief of argument settled by D.C. Maduechesi of Counsel was deemed filed on 7/7/09. While his reply brief was dated and filed on 22/7/10.
The Respondents brief of argument settled by C.C. Ngwuluka (Esq) of Counsel was dated 12/8/09 and filed on 14/8/09 but deemed properly filed and served on 13/7/10.
In the Appellant’s brief of argument, two issues were identified for determination as follows:-
(1) Whether the judgment of High Court, Ekwulobia, Coram; Honourable Justice E. U. Uzodike, sitting as an Appellate Court over judgment of the Customary Court, Umunze is not a nullity for infringing on the Appellant’s right to fair
Hearing?
(2) Assuming that the Appellant herein was given fair hearing, was the Learned Appellant High Court Judge right to have interfered with the finding and the decision of the Custom Court, Umunze without justifiable reason?
For the Respondent, a sole issue was identified for determination as follows:-
“Whether the court below was right in setting aside the judgment of the Customary Court on the authorities of decided cases.”
I am convinced that the two issues as raised by the Appellant will suffice for the proper determination of this appeal more so that the Respondent’s sole issue fits in with Appellant’s issue No. 2, and I will accordingly adopt them.
On issue No.1, Learned Counsel for the Appellant submitted that the procedure adopted by the learned trial Judge in hearing and delivering judgment in an appeal which came before her for the first time from the Customary Court Umunze, violated the Appellant’s right to fair hearing in that the appeal was heard and determined without hearing from the Appellant. He referred to page 57 to 63 of the record to show that the appeal from the Customary Court Umunze was pending before Justice Ijem Onwuamaegbu where the Appellant in that appeal (i.e. Respondent herein) argued his appeal on 8/2/2005 and the matter was adjourned to 19/4/2005 for reply by the Respondent (i.e. Appellant herein). Thereafter there were series of adjournments until 26/9/2006 when the appeal was adjourned sine die.
However on 26/1/2007 when the appeal came up before another Judge, (E. U Uzodike) for the first time, she heard the appeal and also delivered judgment on the same day. Learned Counsel added that no hearing notice was issued on the Appellant, and neither was he or his counsel aware of the fixture of the hearing of the appeal. More so he says, though counsel for the parties filed written arguments as ordered by the previous Judge, there was no where shown on the printed record that such written arguments where ever adopted before the judgment was delivered. Learned Counsel further contended, that the Appellant’s right to fair hearing was seriously violated as the trial judge ought to have made sure that the Appellant was put on notice for the hearing of the matter having started denovo before her. He referred to the following cases: ORUGBO VS UNA (2003) 16 NWLR (PT 792) 175; CEEKAY TRADERS LTD V. GENERAL MOTOR CO. LTD. (1992) 2 NWLR (PT 222) 132, UNTH V. NNOLI (1994) 4 NWLR (PT 363) 376 and OGBOH V. FRN (2002) 10 NWLR (pr 774) 21 AT 39.
On issue No. 2. It was the submission of Learned Counsel for the Appellant that it was wrong for the learned trial Judge to have interfered with the decision of the Customary Court, Umunze without advancing reason for doing so but merely relied on the argument of the Counsel for the Respondent. He cited in support the cases of UCHENA V. OGBONI (1999) 5 NWLR (PT 603) 377 and DURU V. NWOSU (1989) 4 NWLR (PT 113) 24.
Learned Counsel added that the lower court ignored the warning of this court and those of the Supreme Court that the decision and proceedings of the Customary Court should not be unnecessarily interfered with. He referred to the following cases OBIM V. ACHUKS (2005) 15 MWLR (Pt 922) 594, at 636 – 637: FASHINA VS OGUNKAYODE (2005) 12 NWLR (PT 938) 147 at 161; ZAGA V. AMAN (2005) 10 NWLR (PT 933) 299 at 314 – 315; SUBOR v. ASEMAKEME (997) 4 NWLR (PT 502) 621 AT 685. ARUM VS NWOBODO (2004) 9 NWLR (PT 878) 411 at 458 – 460, and AGBEJE V. AJIBOLA (2002) 2 NWLR (PT 750) 127 at 144 to 149.
He then urged this court to set aside the judgment of the lower court and restore the decision of the Customary Court, Umunze.
Before arguing on the sole issue raised in the Respondent’s brief of argument, C.C. Ngwuluka of Counsel for the Respondent raised the point that the four grounds of appeal are grounds of facts and mixed law and facts and as such the appellant ought to have obtained leave of this court to argue those grounds. He then urged that the four grounds of appeal should be struck out. Furthermore, he contended that ground 1 is incompetent for being vague, generalized and not based on printed records. Learned Counsel also referred to grounds 3 and 4 to contend that they are incompetent because the particulars and the nature of the misdirection or effort via law were not stated at all contrary to Order 6 Rule 2 (2) of the Court of Appeal Rules 2007.
Arguing on the Respondent’s sole issue for determination, Learned Counsel submitted that there are plethoras of authorities that the head of a family can alone protect family land. He refereed to ANIMASHAWUN V. ONWUATA OSUMA (1972) LAW REPORTS OR EAST CENTRAL STATE OF NIGERIA page 274 at 288 and OKOKON IMA V. EKE EFFION NTA (1961) ANLR (PT 3) 576 at 577.
He also quoted copiously from the Appellant’s Counsel’s written address at the lower court, to contend that the Respondent did not give evidence of their custom (that whoever does not participate in land dispute has lost right to the land.) But was raised by the Customary Court suo motu. He then urged that the appeal should be dismissed as lacking in merit.
After a close perusal of the record of appeal and the briefs of argument of both parties, it seems appropriate to deal in the first instance with the preliminary issues raised by Learned Counsel for the Respondent in their own brief of argument. He had raised the point that the Appellant’s four grounds of appeal are grounds of fact or mixed law and facts but the Appellant did not obtain leave of this court to argue them. For this, he argued, the grounds of appeal should be struck out. Furthermore he says, grounds (1) is incompetent for being vague, generalized and not based on printed records, just as grounds 3 and 4 are also incompetent for not stating the particulars of the misdirection or effort. I am however in agreement with the submission of Learned Counsel for the Appellant in his reply brief that the issues so raised above by the Respondent ought to come by way of preliminary objection to the hearing of the appeal.
As much as the Respondent is at liberty to incorporate the preliminary objection in his brief of argument. It is not to be so done surreptitiously through the back door. A party filing a brief must seek leave of court to move the notice of objection before the hearing of the appeal proper.
Otherwise it would be deemed abandoned. See OHENHEN V. UHUMUAVBI (1995) 6 NWLR (PT 401) 166 and NSIRIM V. NSIRIM (1990) 3 NWLR (PT 138) 2851. See also ADENIYI V. AKINTAN (2011) 5 NWLR (PT 1241) 554 at 570 where this court per MUKTHAR JCA noted that:-
“Preliminary Objection must be argued before the hearing of the appeal. This is because it 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 of appeal, the preliminary objection is deemed to be effectively abandoned by the failure of the Learned Counsel for the Respondent’s to argue it immediately before the hearing of the appeal.”
In the instant case the Respondent’s Counsel did not make any effort whatsoever to obtain leave of this court to argue the preliminary objection as at and when due. He presumably intended to ambush the Appellant and this cannot be countenanced. Consequently, the objections so raised would be deemed to have been waived or abandoned.
Now, I turn to issue No 1 as raised in the Appellant’s brief of argument that is whether the judgment if the lower court was not a nullity for infringing on the Appellant’s right to fair hearing.
A close perusal of the record of appeal and the briefs of argument makes it germaine for me to comment on the state of the record of appeal which forms the bedrock of the said issue under consideration. It is not in doubt that there is no formal complaint before this court by either of the parties to this appeal as per the correctness, completeness or otherwise of the record of appeal. Record of appeal (duly settled by parties) speaks for themselves and where there is no challenge on their authenticity or correctness by either of the parties in an appeal, the court as well as the parties concerned are of necessity, bound to accept and act on them as a true and correct reflection on record of what transpired in the lower court, see IKOLI VENTURES LTD V. SHELL PETROLEUM DEVELOPMENT COMPANY (NIG) LTD (2008) 12 NWLR (PT 1101) 422; SOMMER V. FEDERAL HOUSING AUTHORITY (1992) SCNJ 73. ORUGBO V. UNA (2002) FWLR (PT 127) 1024. In OJEME V. MOMODU II (2) (1995) 6 NWLR (PT 403) 583. It was held that it is the duty of parties to an appeal to ensure that the Record contains all documents they intend to use for the appeal.
See also JULIUS BERGER (NIG) LTD VS FRIDAY FEMI (1993) 5 NWLR (PT 293) 612 at 619 where this court per Achike JCA (as he then was) held that:-
“It is trite law that in the absence of any formal complaint, the Appellate Court and the parties are bound by the contents of the record of appeal”
In OGILI OKO MEMORIAL FARMS LTD V. N.A.C.B. LTD (2008) NSC QR (PT 2) 1057 at 1074, the Supreme Court held inter alia that:-
“Any person who is contending that the record of proceedings before the appellate court is not a fair record of what happened at the court of first instance must first formally impeach the record of proceedings. Where the record of proceedings is not formally impeached, it is not open to the appellate court to speculate that other things happened in the trial court which were not recorded in the record of proceedings….”
See also DONATUS IDAM V. ALEX IDEMYOR MENE (2009) 17 NWLR (PT 1169) 74. The basis for addressing this issue of Records of Appeal shall be made manifest later. Now, the gravamen of issue No 1 as argued in the Appellant’s briefs is that the Learned trial Judge heard and delivered judgment in an appeal that came before her for the first time on 26/1/07 without hearing from the Appellant and no hearing notice as such was served on the Appellant or his counsel neither were they aware of the fixture for the hearing of the appeal. I am now compelled to take a trip down the record lane in order to bring to the fore what transpired in the lower court culminating in the judgment now being challenged.
The appeal from the Customary Court Umunze to the High Court, Ekwulobia came up for hearing for the first time before Onwuamaegbu J. on 8/10/2003. It was then adjourned to 4/11/2003. On that date it was further adjourned to 5/2/2004 for hearing. For some inexplicable reasons the matter however came up on 29/1/04 and it was adjourned to 17/3/04 for ‘motion.’
There is no record of what happened on 17/3/04 but on 20/4/04 it was further adjourned to 18/5/04. Then subsequently the appeal was subjected to series of adjournments until 8/2/2005 when the Appellant’s Counsel argued the appeal orally and it was adjourned to 19/4/05 for the Respondent to reply. Thereafter there were two other adjournments and on the third one the court ordered for written addresses, wherein both parties were granted 30 days each to do so, and the matter was adjourned to 31/1/05 for hearing.
Four other adjournments were subsequently recorded for hearing of the appeal and on the 26/9/2006, it was recorded by the lower court presided over by Onwuamaegbu J. as follows at page 63 of the Record:-
Parties Present.
No Representation.
Court:- Case adjourned sine die.
Signed
Onwuamaegbu J.
26/9/2006
Amazingly or astonishingly, what followed next in the record at page 64 is the judgment delivered not by Onwuamaegbu J. but by Hon. Justice E. U. Uzodike and dated 26/1/2007. There is no record of any previous proceedings where the parties either adopted their written briefs as ordered by Onwuamaegbu J. or that that they both orally addressed the court. To my mind, where a matter is adjourned sine die, it goes into a deep slumber until it is shaken into awareness by the issuance of a hearing notice to the parties concerned. In the instant case the issue of hearing notice becomes very germaine having regard to the fact that a new Judge took over the appeal.
For the appeal to have come up before her for the first time on 26/1/07 and she heard it and delivered judgment that same day with no record as to whether the parties or their counsel were present or that hearing notice was duly served on them but they failed or neglected to partake in the hearing is an absolute aberration and wanton violation of the right to fair hearing, As I earlier indicated, the parties and the court are bound by the records of appeal as presented in the absence of any complaint. It is not for the appellate court to speculate on what should be in the record of appeal that is not contained therein. None of the parties in the appeal complained or protested as to the correctness or otherwise of the record of appeal as transmitted to this court. They are therefore taken to have tacitly consented to the genuiness, correctness and completeness of the record at least with respect to the issues canvassed in this appeal. See Julius Berger (Nig) Ltd v. Friday Femi Supra and Donatus Idam v. Alo Idemyor Mene Supra.
Consequently, there is no gainsaying the fact that the lower court sitting in its appellate jurisdiction, totally violated the Appellant right of fair hearing.
Having taken over the matter which incidentally was hitherto adjourned sine die. The learned lower court Judge ought to, as a matter of constitutional imperative order fresh hearing notice to be served on all the parties concerned with the appeal. To my mind, it is an elementary procedure that should not be taken for granted or glossed over because of the unpalatable consequence of declaring the whole preceding a nullity. See SKENCONSULT V UKEY (1981) 1 SC 6 at 26 and JULIUS BERGER (NIG) LTD V FRIDAY FEMI Supra at page 621 where this court held that:-
“The issue of failure to serve processes to all the parties to a suit in which the trial court heard the case in the absence of the parties offends the maxim audi altarem partem which is today guaranteed under Section 33 (1) of the 1979 constitution of Nigeria which in turn entrenches the right to fair hearing. A violation of a person’s right to a fair hearing arising from failure to serve process where such service is obligatory is not merely an irregularity but a fundamental error of the proceedings. It is sometimes referred to as fundamental vice sufficient enough to undermine the purported decision of a court reached in such circumstances.”
See also the case of NDUKUBA V KOLOMO. (2005) 14 NWLR (PT 915) 411. The Supreme Court addressed the issue of fair hearing as follows:-
“The consequence of a breach of the Rule of Natural Justice of fair Hearing is that the proceedings in the case are null and void. See ADIGUN VS ATTORNEY GENERAL OF OYO STATE (1987) 1 NWLR (PT 53) 678. If a principle of Natural Justice is violated it does not matter whether the proper thing had been done; the decision would have been the same; the proceedings will still be null and void. In other words, if the principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.”
The right to fair hearing is a fundamental constitutional right guaranteed by the constitution of the Federal Republic of Nigeria 1999. A breach of its provision in any trial will render such trial a nullity: See ADIGUN V ATTORNEY GENERAL OF OYO STATE. (1987) NWLR (PT 53) 679, AND DANTATA AND SAWOE CONSTRUCTION COY LTD V ANGULU IBRAHTM, (2003) 31 WRN 80.
A hearing notice is a process of the court by which a party to the proceedings is notified of the date the case has been fixed in court where he is not otherwise aware of such date. Therefore, service of hearing notice is imperative where a party is not present in court or duly represented: See FOLORUNSHO VS SHALOUB (1994) 3 NWLR (PT 333) 413 at 430 and SOMAISONKAHONLOR CO. (NIG) LTD V ADZEGE (2001) FWLR (PT 68) 1104.
In the instant case, there is noting to show that the Appellant was duly informed or served with hearing notice for the appeal that came up in the lower court on 26/1/07 having been adjourned sine die on 26/9/06. The reality of this unpardonable omission is made manifest in the judgment of the lower court delivered on the said 26/1/07 by Uzodike J. part of which read as follows at page 64 of the record:-
“C.C Ngwuluka for Plaintiff/Appellant. E.C. Oranye for Defendant/Respondent filed Respondent’s written address on 30/1/2006. The Plaintiff/Appellant filed his written address dated 8/12/2005 on 13/12/2005. He adopts same as their address in this court and emphasises the case of Animashawun v. Onwuta Osuma and others (1972) ECSLR 274 at 284.”
In the concluding part of the judgment at page 60 of the Record, the Learned Judge of the lower court concluded as follows:-
C.C. Ngwuluka applies that the court should set aside the judgment of the customary court for being against good conscience equity and material justice. “Counsel for the Defendant/Respondent has Judgment is hereby entered in favour of the Plaintiff/Appellant in this appeal based on the authorities cited above as follows:-
(1) “The judgment of the customary court delivered on 7/11/94 is hereby set aside.
(2) The Defendant is ordered to share Mgboko land with the Plaintiff.
(3) The Defendant is also to stop further move on the said land until the sharing has been done.”
Having earlier noted in the judgment that the Defendant/Respondent (now the Appellant) filed his written address on 30/1/2006. No reference was ever made again to the said written address even though it was recorded that the Defendant/Appellant’s Counsel adopted his own written address that same day, which written address and authorities cited therein formed the basis for allowing the appeal but at the ludicrous expense of ignoring the present Appellant and his Counsel together with his written address. Curiously but sadly enough the lower court recorded without due justification that “Counsel for the Defendant/Respondent has nothing to urge the Court.”
I will rather say no more than to hold that this constitutes a flagrant violation of the Appellant’s constitutionally guaranteed right to fair hearing, and thus renders the proceedings and judgment delivered by the lower Court on
26/1/2007 a nullity:
Issue No. 1 is therefore resolved in favour of the Appellant. The result is that the proper order that this court is obliged to make in the circumstance having regard to the conclusion I have reached is an order for rehearing of the appeal. However, by reason of the order of retrial that is unavoidable in this case, it will amount to embarking on a voyage of empty discovery and pure academic interest to consider the Appellant’s issue No. 2 or the Respondent’s sole issue. The court is in deed never a proper forum for such academic exercise. The result is that I allow this appeal and set aside the judgment of the High Court Ekwuluobia delivered by E.U. UZODIKE J. on 26/1/2007. In its place I order a retrial before another judge and the matter shall be given accelerated hearing.
I make no order as to costs.
AMINA A. AUGIE, J.C.A.: I have read in draft the Judgment just delivered by my learned brother, Oseji, JCA, and I agree with his reasoning and conclusion. I need only say that this whole appeal centers on the fact that the lower Court did not do what it should have done before it proceeded to deliver its Judgment against the Appellant – to hear from him. It is an inexorable legal principle that the Court must hear both sides, not only in the case but also in all material issues in the case, before reaching a decision which may be prejudicial to any party in the case -see Kotoye v. C.B.N. & ors (1989) 1 NWLR (pt.98) 419, where the Supreme Court added –
“..The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice had been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given the opportunity of a hearing. Once an Appellate Court comes to the conclusion that a party was entitled to be heard before a decision was reached but was not given the opportunity of a fair hearing, the order or Judgment thus entered must be set aside. This is because such order is against the rule of fair hearing, one of the twin pillars of natural Justice which is expressed by the maxim: audi alteram partem”. (Italics mine)
In this case, the matter came up for the first time before another Judge after it was adjourned sine die, and Judgment was delivered that same day with no record of the Appellant being served. He was not given an opportunity to be heard, which is a clear breach of his right to a fair hearing, and the only option open to this Court is to allow the appeal –
See Orugbo v. NNA (1997) 8 NWLR (pt.516) 255, wherein it was held –
“…Once it is duly established that the right to fair hearing has been breached in a judicial proceedings, its breach vitiates the entire proceedings.
Therefore when the appellate Court finds that the right of fair hearing is breached, it shall have no alternative but to allow the appeal.
In the circumstances, I allow the appeal, and abide by the consequential orders in the judgment. I also make no order as to costs.
A. O. LOKULO-SODIPE, J.C.A.: I agree.
Appearances
D. C. MaduechesiFor Appellant
AND
C. C. NgwulukaFor Respondent
