REV. OBIORA OKEZIE AGBOGU V. GEOFREY ADICHE
On Wednesday, the 27th day of February, 2002
REV. OBIORA OKEZIE AGBOGU Appellant(s)
GEOFREY ADICHE Respondent(s)
AKPABIO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of S.M.B. IBEZIAKO J. of Anambra State High Court, holden at Ogidi in Idemili Judicial Division in suit No. 0/183/89; HID/805/95 delivered on 17th December, 1998, wherein he dismissed plaintiff’s suit for declaration of entitlement to customary/statutory right of occupancy in respect of certain lands in dispute; N1,000.00 damages for trespass and perpetual injunction, but rather awarded title to the said land to the defendant in accordance with his counter-claim for almost identical reliefs with N1,000.00 costs against the plaintiff.
It should be stated at this initial stage that at the trial court the original plaintiff was one Crawford Agbogu, while the original defendant was one Michael Adichie. The original parties later died, and were substituted with the present plaintiff and defendant now on record.
The claim of the original plaintiff was worded as follows:
The plaintiff claims as follows:-
1. A declaration that the plaintiff is entitled to the grant of a customary right of occupancy in respect of a piece or parcel of land situate at Ikenga Village, Ogidi on which plaintiff built his homestead in 1930. The annual value of the said land is about N200.00.
2. N1,000.00 (One thousand naira) general damages for trespass on the said land.
3. Perpetual injunction restraining the defendant, his servants, agents and privies from unlawfully entering into, remaining on, or interfering in any way whatsoever with the plaintiff’s use, enjoyment and possession of the said piece or parcel of land situated at Ikenga Village, Ogidi, on which plaintiff built his homestead and has been living on since 1930.
DATED AT ENUGU this 10th day of July, 1989.
In response to the statement of claim filed by plaintiff, the defendant later filed a further amended statement of defence and counter-claim dated 20th October, 1997, wherein he counter-claimed from the plaintiff as follows:-
“7. Defendant denies that plaintiff is entitled to the claims in paragraph 15 of statement of claim and counter-claims against plaintiff for:
(a) A declaration that defendant or Adichie family is entitled to a right of occupancy of the land verged green on defendant’s said survey plan.
(b) Injunction restraining plaintiff and his agents from interfering with Adichie family rights in and possession of the said land.
(c) N100,000.00 damages.
Dated this 20th day of October, 1997.”
The evidence in support of plaintiff’s claim may be summarized as follows:-
The plaintiff was the beneficial owner in occupation of all that piece or parcel of land situate at Ikenga Village, Ogidi within jurisdiction of the court. A survey plan of the said land was later filed, tendered and admitted at the trial as exhibit ‘A’. It was averred that the customary landowners of the said land in dispute were originally the Dualo Family of Odida Quarters in aforesaid Ogidi and was sold to the plaintiff on or about 15th June, 1930 at the purchase price of ?16 (Sixteen pounds). The purchase receipt was later tendered in court. According to plaintiff, in addition to the payment of the purchase price, he also fulfilled all the customary and traditional formalities necessary for the customary transfer of land.
Then on or about 25th May, 1970 around 6 a.m., members of Adichie family (i.e. the defendants) invaded the land in dispute armed with matchets and other fighting implements. As plaintiff was in the house with only one of his sons, he found himself greatly outnumbered by the defendants. The defendants invaders then set out to damage all the economic crops on the land, and even made farm ridges up to the frontal foundation of plaintiff’s main building. In view of the numerical superiority of the invaders, the plaintiff did not engage them in any combat, but rather went and made a complaint to his customary landlords, the Odida Quarters, who sent for the defendants to come and explain their actions, but they refused to go even after a second invitation. Subsequently, plaintiff lodged a formal complaint to the Ndichie of Ogidi in keeping with the Ogidi native law and tradition of exhausting all local remedies before going to court. In their judgment, the Ndichie asked both the plaintiff and defendants to administer native oaths to each other, which plaintiff refused to do as “barbarous, unconscionable and contrary to justice.” At the hearing before the Ndichies the plaintiff’s grantors (or vendors) testified and confirmed that the land in dispute originally belonged to them, and that they granted same to the plaintiff. The defendants on the other hand claimed that the land in dispute had always originally belonged to their family. After the judgment of the Ndichies, plaintiff appealed to the Igwe-Ogidi-in-Council, but he was constrained to withdraw his appeal and instead instituted the present proceedings in the High Court when certain members of the said Council began to demand bribes and gratification. Copies of the record of proceedings both before the Ndichies and the Igwe-Ogidi-in-Council were later tendered as exhibits at the High Court trial already set out above.
In reply to the above, the defendant filed a brief “further amended statement of defence and counter-claim in which they denied all the material averments made by the original plaintiff in his statement of claim. Instead, they averred that the land in dispute was originally founded by their ancestor by name ADICHIE, who deforested the virgin forest and settled thereon. They then gave a chronology of the people through whom the land in dispute descended from Adichie to his two sons Nwosisi and Emelarom, and from them to Michael and Isaiah, and like that down to the present defendant Adichie. According to defendants before 1930 C.M.S. Central School was built there with Igwe Amobi’s permission and Adichie family’s consent, and when the school was removed from there, the land reverted to defendant’s family who resumed possession and enjoyment of the land. Neither the plaintiff nor Odida people ever owned any part of the land in dispute. The defendants then counter-claimed from the plaintiff as already set out above. So far so good.
However, at the hearing of the suit before Ibeziako, J. things began to fall apart. According to the plaintiff in their brief subsequently filed in this case, the plaintiff had called five witnesses including himself, and also tendered four exhibits, after which the present defendant opened his defence. The defendant testified for himself and also tendered three exhibits. It was at the stage of cross-examination of the defendant that things began to fall apart. The main complaint of the plaintiff was set out under paragraph 3 of his brief as follows:-
“After many days of hearing, case was adjourned to 16/12/98 for continuation of further cross-examination of defendant. On said 16/12/98, plaintiff was present. He was represented throughout the trial by counsel in the Chambers of Dr. I.A. Okafor, SAN. That day, 16/12/98, no counsel from this Chambers came to represent him.
Instead, one C.S. Okpala, Esq. appeared for the plaintiff and applied for adjournment. He stated that he was unable to proceed with the cross-examination as he did not have the case file. The learned trial Judge ruled that the case must proceed that day. Accordingly, he ordered C.S. Okpala, Esq. to remain in court while the case proceeded.
Further, he closed the cross-examination of the defendant testifying as DW 1 and ordered the defendant’s counsel to proceed to address the court. He did not call upon plaintiff to proceed with the cross-examination, if he can, but after the respondent’s counsel had completed his address, he turned on plaintiff to ask whether he had anything to urge.
Plaintiff replied that he did not know the technicalities of law but asked for judgment on his behalf. The learned trial Judge then adjourned for judgment the next day, 17/12/98. In the judgment, he dismissed plaintiff’s claim and awarded defendant his counter-claim.”
It is based on the above complaint that the plaintiff was now appealed to this court and formulated the following six issues for determination:-
“i. Whether in the circumstances of the proceedings on 16/12/98, when the learned trial Judge refused appellant’s application for adjournment, closed the cross examination of DW1 on behalf of appellant, unilaterally closed the case for the defence and called upon respondent’s counsel to address the court, and adjourned to 17/12/98 for judgment, the learned trial Judge had not descended into the arena in favour of the respondent?
ii. Whether the judgment of the court below contained the constituent parts necessary to qualify it as a valid good judgment?
iii. Whether the learned trial Judge was right when he held that the traditional evidence adduced by the appellant was obviously porous and contains no substance to rely on?
iv. Whether the learned trial Judge’s evaluation of exhibits E, F and G as being consistent with the evidence of defendant and as awarding judgment to defendant was correct?
v. Whether plaintiff did not prove acts of possession over the land in dispute through exhibit D and oral evidence?
vi. Whether the learned trial Judge was right when he dismissed plaintiff’s claim and gave judgment to the respondent on his counter-claim?”
The plaintiff will hereinafter in this judgment be referred to as the “appellant”.
As regards the complaint of high handedness or “descending into the arena” made against the learned trial Judge by the appellant, the defendants who will hereinafter be referred to as the respondents stated their own version of the incident at the trial court at paragraphs 9 – 11 of the respondent’s brief as follows:-
“9. On 16/12/98 the said plaintiff’s counsel Dr. Ilochi Okafor S.A.N. now became totally absent from the court, again without any disclosed reason. However, one C.S. Okpala who had earlier appeared twice in the case (on 10/4/97) and (30/7/97) announced himself as holding the brief of Dr. Okafor S.A.N. He claimed he could not go on with the cross-examination. He also claimed he did not have the case file and that Dr. Okafor S.A.N. had it. He did not say why Dr. Okafor (SAN) gave him his brief without giving him the case file. He did not explain Dr. Okafor’s absence but simply asked for an adjournment of the case, not to the next day or the next week but to 27/1/99, the next year, when the case was by agreement of both counsel and the court being expedited to be concluded before the Judge retired in December, 1998. No material whatsoever was placed before the court in support of the application for adjournment.
10. The defendant’s counsel opposed the application on the grounds, inter alia, that it was a delay tactic to have the case started de novo and that the last adjournment was at the instance of Dr. Okafor S.A.N.
11. The court in its ruling rejected the application for adjournment as frivolous, made in bad faith and designed to cause delay, and insisted the case must go on. It closed case of the defendant and called for address. While the defendant’s counsel was addressing the court, the said C.S. Okpala collected his papers and walked out of the court room without the leave of the Judge. At the end of the defendant’s counsel’s address the court called on the plaintiff to address the court if he wished, in view of his counsel’s departure and absence without leave. The plaintiff asked for judgment to be given in his favour. The case was adjourned to 18/1/98 for judgment. On that day, both Dr. Okafor S.A.N. and C.S. Okpala Esq. continued to be absent without any disclosed reason, though the plaintiff was present and the defendant and his counsel were also present. Judgment was delivered dismissing the plaintiff’s claims and granting the defendant’s counterclaim. The plaintiff has now appealed against that judgment.”
After the above explanation, the respondents also formulated three issues for determination as follows:-
“(i) Whether the learned trial Judge was right or justified in dismissing the plaintiff’s claims and granting defendant’s counter-claim?
(ii) Whether the judgment was rendered defective or invalid by any other feature?
(iii) Whether there was a descent into the arena prejudicial to the plaintiff or resulting in a miscarriage of justice?”
I have carefully considered all the issues formulated above by learned counsel on both sides, and consider the first issue formulated by the appellant’s counsel to be crucial or most important, as it amounted to a complaint of lack of fair trial, which if found to be true will render the entire trial a nullity regardless of how well conducted the trial might have been otherwise. “Justice must not only be done, but must be seen to have been done.”
As the facts alleged by the appellant to constitute an unfair trial or a descent into the arena have already been set out above, from the briefs of both parties, I do not consider it necessary to reproduce the arguments of both counsel as such would be a repetition. All that now remains is for me to consider whether those facts (which are undisputed) rendered the trial unfair, and therefore a nullity. If I come to that decision, it will become unnecessary to consider any of the other issues for determination. But if I find that notwithstanding these lapses, the trial was substantially regular and fair, I should then proceed to consider the other issues for determination.
I now proceed to consider Issue No.1 formulated by the appellant viz:-
“1. Whether in the circumstances of the proceedings on 16/12/98, when the learned trial Judge refused appellant’s application for adjournment, closed cross-examination of DW1 on behalf of appellant, unilaterally closed the case for the defence and called upon respondent’s counsel to address the court, and adjourned to 17/12/98 for judgment, the learned trial Judge had not descended into the arena in favour of the respondent?”
After a careful consideration of all the circumstances enumerated in the above issue, I am of the considered view that the question for determination is whether in view of the above facts the trial at the court below could be said to have been a fair trial. A fair trial consists of two principal ingredients and a third ancillary one.
The two principal ones are embraced in the Latin maxim (i) “Audi alteram partem (Hear the other side) and (ii) Nemo judex in causa sua (No man should be a Judge in his own cause) (iii) The third ingredient which I call ancillary is whether an ordinary and independent man observing the trial can come out from the court and say that the trial has been fair to both parties. This is usually put another way by saying that justice must not only be done, but must be seen to have been done.
In order to decide whether the trial in the instant case was fair or not I have had to look at other similar cases on all fours with the instant case which the superior courts have held to be either fair or unfair, and found the following to be pertinent.
First, is the case of R.C.C. Ltd. v. Okpegboro (2000) 2 NWLR (Pt. 645) 367 where the Court of Appeal (Benin Division) Per AKINTAN, J.C.A. held inter alia at P.374:
“On Requirements of fair hearing:-
The requirement that equal treatment, equal opportunity and equal consideration be given to all concerned is not breached in situation where a party was afforded the opportunity to be present at the trial to present his case or to defend himself but he deliberately refused to avail himself of such an opportunity through his own neglect or tardiness, since the law does not aid the indolent. The rule only comes to play where a party is denied any opportunity to be heard.”
Another case similar to the above was the case of Buzu v. Garabi (2000) 13 NWLR (Pt. 684) 228 decided by the Court of Appeal, (Jos Division) where UMOREN J.C.A had the following to say at pages 238 and 239:-
“On connotation of fair hearing as enshrined in section 33 of 1979 Constitution:-
Fair hearing as encompassed in section 33 of the 1979 Constitution is not an imaginary proposition. It is a
state of affairs that consists of many ingredients. It encompasses not only compliance with the twin rules of natural justice, namely, audi alteram partem and nemo judex in causa sua, but entails compliance with all the provision of section 33 of the 1979 Constitution. It also entails doing, during the course of trial of a civil or criminal action, all things which will make an impartial observer leaving the court room to believe that the trial has been balanced and fair to both sides to the trial. In the instant case, the respondent was given ample opportunity to present his case before the Upper Area Court but chose to be absent from the court. In the circumstances, the Upper Area Court gave him fair hearing [Kim v. State (1992) 4 NWLR (Pt. 233) 17 referred to.] (PP 238, paras. B-E; 239, paras. A-D).
See also the Supreme Court cases of Dr. Bamgboye v. University of Ilorin (1991) 10 NWLR (Pt. 622) 290 and the case of Omo v. J.S.C. Delta State (2000) 12 NWLR (Pt. 682) where the Supreme Court, Per KATSINA-ALU, J.S.C. wrapped up the matter by saying that “a person who had opportunity of being heard but failed to utilise same could not turn round and complain of breach of fair hearing.”
However, a case which went the other way, and which was on all fours with the instant case was the case of Grace Offor v. The State (1999) 12 NWLR (Pt. 632) 608 in which the trial court had refused to allow appellant’s new counsel to address the court, and convicted her of the offence of obtaining money under false pretence.
In appeal to the Court of Appeal, Port Harcourt Division, the appeal was allowed and the conviction quashed. In allowing the appeal, the court made a number of far-reaching pronouncements Per ONALAJA, J.C.A., prominent among which are the following:-
“On Meaning and test of fair hearing:-
A fair hearing does not mean a fair trial. A fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice and been done in the case. [Mohammed v. Kano N.A. (1968) 1 All 424 referred to.] (P. 622, paras. E-F) Per ONALAJA, J.C.A. at page 622, paras. C-F:
“Fair hearing has ancient origin dating to the melodramatic incident in the garden of Eden as stated by Fortescue J. in R. V. Chancellor Master and Scholars of the University Cambridge (1723) 1 STR 557. ‘Even God himself did not pass sentence upon Adam before he was called upon to make his defence.’ With our concern on one of its twin pillars Audi Alteram partem that is (hear the other side). What is fair hearing?
Was answered by Ademola CJN in the often quoted and celebrated case of Isiyaku Mohammed v. Kano Native Authority (1968) 1 All NLR page 424 that:-
‘It has been suggested that a fair hearing does not mean a fair trial? We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case.’
“On Effect of breach of right to fair hearing:-
The right to fair hearing being a fundamental constitutional right guaranteed by the Constitution, the breach of it in any trial or investigation or inquiry nullifies the trial, and any action taken on them is also a nullity. In the instant case, the appellant was denied the fundamental right of freedom of choice of counsel by the trial court’s refusal to allow the learned counsel who appeared and announced appearance for the appellant. [Obomhense v. Erhahon (1993) 7 NWLR (Pt. 303) 22 at 47 referred to.] (P. 623, paras. C- F)”.
“On Right to make final address:-
Judicially interpreted, section 258(1) of the 1979 Constitution vests a right in the parties to make final addresses and where one of the parties makes his final address the other party must be given opportunity to reply or give his own final address before pronouncement of judgment. A denial to one party from giving his final address whilst the other party is allowed is an infraction of the rule of natural justice of audi alteram partem…”
Although Offor’s case was criminal case, while the instant case was a civil case, yet I consider them to be on all fours as the complaint in each case was the same, namely failure by the learned trial Judge to give the appellant’s counsel opportunity to address the court.
A trial in which one party’s counsel was given opportunity to address the court on law and facts and the other party not given, cannot in my respectful view be said to have been fair. I do not think the court could have lost anything by giving the appellant at least one adjournment for his counsel to come and address the court. It is on record that the appellant himself has always been in court even where his counsel was absent. Also, it must be observed that the learned trial Judge appeared to have been in too much of a hurry to complete the case and deliver judgment before proceeding on his retirement.
It is a well known maxim that “justice delayed is justice denied.” I think the same thing may be said for a situation where justice is hurried or rushed. To me, a situation in which a 29-paged judgment was written overnight and delivered the very next morning was not good enough. The learned trial Judge should have given himself adequate time to have digested and reflected on all the facts and law on the matter. There is also the fact that all the irrational behaviours, or absence from court without reasons or walking out of court without leave, complained about in this case, were all made against the learned counsel for appellant, and not the appellant himself, who was present in court at all material times. It is our law that “the sins of the counsel should not be visited on his client” Doherty v. Doherty (1964) 1 All NLR 299.
In view of the foregoing, I am of the firm view that the appellant did not receive a fair trial in this case. This appeal therefore succeeds and is hereby allowed. The judgment of the learned trial Judge is hereby set aside and a fresh trial by another Judge of the Anambra State High Court is hereby ordered.
Costs of this appeal are assessed at N4,000.00(Four thousand naira only) in favour of the appellant.
OLAGUNJU, J.C.A.: Reading through the record of the trial at the court below on which judgment has just been delivered by my learned brother Akpabio, J.C.A., the impression conjured up by the decision of the trial court is one of rare proceedings in which by design on the part of the court and the plaintiff’s counsel justice was portrayed as a chess game in which the aim of one principal (sic) was to checkmate the opponent leaving at the end of the (sic)the defendant to pick up a ‘mock-prize’.
The facts of the case have been well summarised in the leading judgment to spare a repetition. It will be enough to highlight facts that are essential for my concurring comments that this is case in which the plaintiff sought declaration of title to a piece, land, damages for trespass to the land and injunction against the defendant to restrain further trespass to the land and in which the defendant counter-claimed for the same reliefs. The learned trial Judge was anxious to complete the trial of the case before (sic) retirement from the service in December, 1998, a fact which (sic) common knowledge to all sides, but a recourse which learned Senior Advocate for the plaintiff was eager to scuttle so as to enable the case to be begun de novo.
With that strategy in place, on 16/12/98 when the case came up for continuation of cross-examination of the first witness for defence (the DW1) learned Senior Advocate for the plaintiff who was to continue the cross-examination appeared in court through a proxy whose instruction was to ask for an adjournment of the case to 27/1/99. The proxy would not budge when he was asked by the court to continue the case as he excused his inability to do so on the ground that he was not given the case file by his principal.
The application for an adjournment was refused by the learned trial Judge who because of failure of the proxy to continue with the case terminated cross-examination of the DW1, closed the case for the defence and called for address of the court by the parties to which only learned counsel for the defendant responded. At the end of the address by learned counsel for the defendant the learned trial Judge adjourned the case for judgment to the next day, 17/12/98, when in a considered judgment of 29 pages he dismissed the plaintiff’s claims wholly and entered judgment for the defendant for his counter-claim.
I agree with the examination of the dispute in the leading judgment whereby the resume of the substance of the issues formulated by the parties is identified as converging on the central question of whether the trial at the court below satisfied the fundamental requirements of fair hearing, a point on which the appeal turns. Learned Senior Advocate for the appellant contended that it was pre-judicial to the plaintiff/appellant the procedure adopted by the learned trial Judge of refusal of application for an adjournment that was followed by the learned trial Judge terminating the cross examination of the DW 1., closing the case for the defence proceeding to hear address from the defence and adjourning for judgment all in one fell swoop. He submitted that by so doing the learned trial Judge forestalled the appellant’s further participation in the trial in the process of which he descended to the arena by taking over the conduct of the case.
Debunking the argument learned counsel for the respondent put a premium on the absence of the learned Senior Advocate from court on 16/12/98 without any cogent reason and the refusal to continue the case by his junior, Mr. C.S. Okpala, whom he sent to court when he was asked to do so by the learned trial Judge which he argued is inexcusable. He contended that the insistence by Mr. Okpala on adjournment of the case to 27/1/99 was in bad faith because Mr. Okpala had accompanied the learned Senior Advocate to court for the prosecution of the case twice and could, therefore, not claim with any sincerity that he was not familiar with the case nor could the excuse that the learned Senior Advocate did not release the case file to him be accepted as any tenable excuse. The learned counsel submitted that the adjournment of the case to 27/1/99 sought by learned Senior Advocate for the respondent was a ploy to delay the trial so as to ensure that the case goes before another Judge after the Judge handling it would have gone on retirement without completing the case.
Against this background, the resolution of the issue of fair hearing must begin with the question of whether the learned trial Judge was right in refusing application for adjournment by the appellant. Adjournment of a case is a matter at the discretion of the court which is not exercised in favour of a party for the asking. It has been held that in granting adjournment the court must always weigh the necessity for speedy trial with the request of counsel for adjournment: see Solanke v. Ajibola (1968) 1 All NLR 46, 54; and Odusote v. Odusote (1971) 1 All NLR (Pt. 1) 219, 223-224. Such an adjournment would be refused if the court is of the opinion that its purpose was to delay the proceedings: See Omega v. The State (1964) 1 All NLR 379, 384. But it ought to be granted where a refusal would put the party in a distress of being marooned midstream of the court proceedings without the services of a counsel: see Anisiubu v. Emodi (1975) 2 SC 9, 13.
Applying those principles to the facts of this case, the manner of applying for an adjournment on 16/12/98 is, with respect to the learned Senior Advocate, brash and supercilious sending a young counsel to the court for an adjournment of the case to a particular date or nothing. The poise lends credence to the argument of learned counsel for the respondent that the application was tendentious as calculated to put off further hearing of the case until the tenure of office of the learned trial Judge ran out.
But notwithstanding that supposed ruse I wonder whether the learned trial Judge was left without any option other than the drastic one of terminating the cross-examination of the DW1, and closing the case for the defence when adjournment for a few days from 16/12/98 was still within the compass of his discretion. That could be a way of testing the water for the reaction of the appellant who has a stake in the outcome of the trial and is, ipso facto, entitled to be discreetly put on notice of the consequences of the stand of his counsel. On that premise, by not contemplating an adjournment of a shorter duration than learned Senior Advocate for the appellant asked for the learned trial Judge would seem to have reduced the whole exercise to a test of wills between himself and the appellant’s counsel, a contest that prepared the ground for the judicial blast from which the appellant emerged as an underdog.
In my view, the result of the exercise of the discretion by the learned trial Judge over the application for an adjournment was to make the appellant to carry the can for the sin of his counsel. That offends against the principle of law that litigant should not be punished for the sin of his counsel. See Doherty v. Doherty (1964) 1 All NLR 299; Akinyede v. The Appraiser (1971) 1 All NLR 162, 165; Ahmadu v. Salawu (1974) 1 All NLR (Pt. 11) 318, 324; Bowaje v. Adediwura (1976) 6 SC 143, 147; Ibodo v. Enarofia (1980) 5-7 SC 42,57; and Bello v. Attorney-General of Oyo State (1986) 17 NSCC (Pt.11) 1257, 1284-1285. Thus refusal of an adjournment is the primary error by the learned trial Judge that became a catalyst for the other errors on which breach of the right of fair hearing is predicated.
Coming to the element of fair hearing the learned trial Judge having refused to grant the application for an adjournment made on behalf of the appellant took three crucial steps in the proceedings, viz, he terminated the cross-examination of the DW1., closed the case for the defence and heard the address by learned counsel for the defendant locked up between himself and the learned defence counsel. What is the legal significance of taking all these steps without participation through legal representation by the appellant who engaged the services of a counsel? True enough the appellant was physically present in court yet being a reverend gentleman who is not shown to have a grounding in law his presence in court was nothing more than one of an onlooker of the mesmerizing performance as the learned trial Judge and the learned defence counsel slogged out their guts. In other words, the proceedings of 16/12/98 were technically a hearing but are they fair given the defined attributes of the expression ‘fair hearing’?
Considering the implications of fair hearing under sub-section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979, which is re-enacted, ipsissima verba, as sub-section 36(1) of the 1999 Constitution in Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419, the Supreme Court, Per NNAEMEKA-AGU, J.S.C., held, at page 444, inter alia, as follows:
“Clearly whenever the need arises for determination of the civil rights and obligations of every Nigerian, this provision guarantees to such person a fair hearing within a reasonable time. Fair hearing has been interpreted by the courts to be synonymous with fair trial and as implying that every reasonable and fair minded observers who watches the proceedings should be able to come to the conclusion that the court or other tribunal has been fair to all the parties concerned. See on this Mohammed v. Kano N.A. (1968) 1 All NLR 424 at P. 426. There are cartain basic criteria and attributes of fair hearing, some of which are relevant in this case.
i. that the court shall 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 Sheldon v. Bromfield Justices (1964) 2 Q.B. 573, at P. 578;
ii. that the court or tribunal shall give equal treatment, opportunity, and consideration to all concerned. See on this Adigun v. Attorney General, Oyo State & Ors. (1987) 1NWLR (Pt.53) 678;
iv. that having regard to all the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done: R. V. Sussex Justices, Ex Parte McCarthy (1924) 1 K.B. 256, at P. 259; Deduwa & Ors. v. Okorodudu (1976) 10 SC 329.”
In Baba v. Nigerian Civil Aviation Training Centre (1991) 7 SCNJ (Pt. 1) 1, 24; Also report (1991) 5 NWLR 388 (Pt. 192) the court further listed, among others, as a prerequisite of right of fair hearing the right “to cross-examine or otherwise confront or contradict all the witnesses that testify against him.”
Test against the above criteria how can it be said that the learned trial Judge heard both sides to the case in all the material issues when the evidence for the respondent in refutal of the appellant’s claims and in establishing his counter-claim was cut short by closure of the respondent’s defence precipitately by the learned trial Judge? What with the right to cross-examine the respondent that was given a short-shrift by the abrupt termination of the cross-examination of the DW1. The hasty and precipitate winding up of the proceedings with the learned trial Judge and the learned defence counsel cloistered away in esoteric legal jargons cannot fulfil the expectation of reasonable and fair minded observers that the hearing by the court below was fair to the appellant who was left in the lurch with the absence of his counsel. In sum, the proceedings by the learned trial Judge was in severe breach of all the canons of fair hearing as enunciated in a number of decided cases for which see Aiyetan v. Nigerian Institute for Oil Palm Research (NIFOR) (1987) 18 NSCC (Pt. 11) 777, 784, 798; Also reported in (1987) 3 NWLR (Pt.59) 48; Mohammed v. Olawunmi (1990) 2 NWLR (Pt. 133) 458, 485; Oyeyemi v. Commissioner for Local Government, Kwara State (1992) 2 SCNJ (Pt. 11) 266, 289; Also reported in (1992) 2 NWLR (Pt. 226) 661; University of Nigeria Teaching Hospital Management Board v. Nnoli (1994) 8 NWLR (Pt. 363) 376, 402-403; and Yisi Nigeria Ltd. v. Trade Bank Plc. (1999) 1 NWLR (Pt. 588) 646, 652.
The question canvassed whether by the conduct of the trial at the lower court the learned trial Judge descended into the arena in favour of the respondent overlapped the earlier question of audi alteram partem the conclusion on which anticipated the shortcomings that gave rise to the allegation of pre-judgment which falls under this head. Therefore, I do not consider it necessary to go into a full examination of the matter except to state the law on the question raised as a pointer to the manifestations that fall squarely within reproachful aberration.
The maxim nemo judex in causa sua upon which the detachment of the learned trial Judge is being questioned is the other component of the rule of fair hearing. Together with the doctrine of audi alteram partem just examined they are the symbiosis of the rule of natural justice with fair hearing as a benchmark to which a judicial trial must measure up.
The cliche that ‘no man should be a Judge in his own cause’ to which the maxim nemo judex in causa sua is translated postulates that to ensure the impartiality of a Judge in the matter before him. Firstly, there must not be the slightest inkling that he has interest in the matter either financially or in kind; emotionally or sentimentally.
It posits the elimination of everything which might engender suspicion or distrust of his impartiality so as to promote the feeling of confidence in which administration of justice is rooted. Secondly, bias which may be the product of any of the above factors or independently of it is a potent factor for disqualification of a Judge from sitting in judgment over a cause. Thirdly, element of idiosyncrasy that may not necessarily stem from any of the two factors noted above is pre-disposition towards interference with the proceedings that are contested between the parties which the Judge as an umpire should allow to run its course.
The first type of allegations is an outright disqualification. Allegation of bias must be founded on likelihood of bias and not on frivolous complaints. On the one hand, examples of complaints which were regarded as technical in nature or unsubstantiated after investigation are Olue v. Enenwali (1976) 10 NSCC 63, 68; (1976) 2 S.C. 23; Odunsi v. Odunsi (1979) 12 NSCC 57, 80; also reported in (1979) 3-4 S.C. 128; Ikomi v. The State (1986) 3 NWLR (Pt. 28) 340, 375 & 383; and Odudu v. Atoyebi (1987) 2 NWLR (Pt. 58) 660,667.
On the other hand, more serious types of complaint affecting matters of substance were examined in Obadara v. The President, Ibadan West District Grade ‘B’ Customary Court (1964) 1 All NLR 336,343-345; Kujore v. Otubanjo (1974) 10 SC 173, 180-181; Attorney-General of Sokoto State v. Gulma (1980) 2 NCR 271, 281- 282; Adjekugbele v. Azara (1995) 7 SCNJ 283,294-295 & 302-304.
They typify instances where a Judge or a panel of Judges had to excuse themselves from hearing or continuing the hearing of a case or are disqualified from doing so.
The third form of objectionable adjudicatory conduct which may not have the same moral turpitude as the two other forms except where it is coupled with element of bias appears, more often than not, to stem from fastidious craftsmanship by the unwary who is yet to develop fully the disposition as a judicial umpire and is apt to see every slip during court proceedings from the didactic lenses of a pedagogue. The tendency is not less reprehensible than the other two forms. Besides, it is counter-productive and from the legal implications of the proneness a set-back for the litigants. The decision of the English Court of Appeal in Yuill v. Yuill (1945) 1 All E.R. 183, turned on the desirable limits of judicial intervention in the conduct of examination and cross-examination of witnesses. The court, Per Lord Greene, M.R., at page 189, with a catchy expression from which a household metaphor for warning about the implication of overbearing adjudicatory attitude was coined made the following pithy remarks:
“If a Judge … should himself conduct the examination of witnesses, ‘he so to speak, descends into the arena and is likely to have his vision clouded by the dust of the conflict”
The essence of that dictum is to emphasise the level of detachment expected of Judges as a precaution against interference with judicial proceedings. The dictum has become a locus classicus for instances of application of which see Deduwa v. Okorodudu (1976) 9-10 SC 329, which should be contrasted with Elike v. Nwankwoala (1984) 15 NSCC 903. See also Madueke v. Inspector General of Police (1959) LLR 14; and Oludimu v. Ogundare (1976) 6 UILR (Pt. 1) 80.
It is arguable whether the proceedings of the lower court on 16/12/98 when the appellant was not properly represented by counsel can be said to fall foul of any of the three arms of the doctrine of nemo judex in causa sua analysed above and in the sense illustrated by the facts of the decision in State Civil Service Commission v. Buzugbe (1984) 15 NSCC 505, 513-514; (1984) 7 S.C. 19, or Deduwa v. Okorodudu, (supra) at pages 353-360. But it is clear from the conclusion which I have reached on the doctrine of audi alteram partem that there was a breach of the appellant’s right of fair hearing.
Consequently, on the authority of Adigun v. Attorney-General of Oyo State (1987) 1 NWLR (Pt. 53) 678, 709, breach of the constitutional right of fair hearing nullifies the trial of the court below and that settles this appeal.
This is yet another instance of hurried justice lamented by this court in Okeke v. Nwokoye (1999) 13 NWLR (Pt. 635) 495,510, in which the Supreme Court’s opinion in Unongo v. Aku (1983) 2 SCNLR 332, 352, was craved in aid. A pleasant reminder of the drawback of hasty justice is contained in State Civil Service Commission v. Buzugbe, (supra) at page 514, where the court, Per Aniagolu, JSC, sounded the warning once more that:
“Instances may exist where short-cuts may prove invaluable and achieve their objectives. It is, however, generally to be recognised that in legal matters and particularly in matter of natural justice, short-cuts many times prove counter-productive, by short-circuiting legal norms and norms of natural justice, and rendering the whole exercise a futility. In that case the short-cut becomes the ineffective long route.”
It is for the foregoing reasons and for the fuller reasons in the leading judgment that I too will allow this appeal. I adopt as mine all the consequential orders made in the leading judgment including order for costs.
Dr. Ilochi A. Okafor, SAN (with him, J.A. Okonkwo, Esq.)For Appellant
Olisa Okosa, Esq.For Respondent