SULE KOYA FULANI V. MOHAMMED MANI RAFAWA & ORS
(2013)LCN/5908(CA)
RATIO
“Now, the term “fair hearing” has been judicially interpreted to involve situations where, whether having regard to all the circumstances of a case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the tribunal was fair to all the parties to the proceedings. It is said to mean a trail conducted according to all the legal rules formulated to ensure that justice is done to all the parties to a cause or matter – Ariori V. Elemo (1983) 1 SCNLR 1, Kuusu V. Udom (1990) 1 NWLR (pt 127) 421, Okafor V. Attorney General, Anambra State (1991) 6 NWLR (Pt 200) 659 at 678, Military Governor of Imo State V. Nwauwa supra, Bamgboye v. University of Ilorin supra, Kalu v. State (2011) 4 NWLR (Pt 1238) 429. Fair hearing also postulates that parties have a right to be heard at every material stage of the proceedings Ekuma V. Silver Eagle Shipping Agencies PH Ltd (1987) 4 NWLR (pt 65) 472 at 486, Agbahomovo V. Eduyegbe (1999) 3 NWLR (Pt 594) 170, and Agbiti V. Nigerian Navy supra.” Per ABIRU, J.C.A.
“The right to fair hearing is one of the rights included in the conglomeration of rights referred to as fundamental rights. Now, fundamental rights have been defined as basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. In Ransome-Kuti V. Attorney General of the Federation (1985) 2 NWLR (Pt 6) 211 at 230, Eso, JSC stated that a fundamental right “is a right which stands above the ordinary laws of the land and which are in fact antecedent to the political society itself” and “it is a primary condition to civilized existence”. Fundamental rights are rights derived from natural or fundament law – Igwe V. Ezeanochie (2010) 7 NWLR (Pt 1192) 61. In the words of Jacques Maritain: “The human person possesses rights because of the very fact that it is a Person’ a whole, master of itself and of his acts, and which consequently is not merely a means to an end but an end, an end which must be treated as such. These are things which are owed to man because of the very fact that he is a man” (Jacques Maritain, The Rights of Man and Natural Law 65 (D. Anson tans. 1943) Calling these basic moral guarantees “rights” suggests that they attach to particular individuals who can invoke them, that they are of high priority, and that compliance with them is mandatory rather than discretionary. Fundamental rights are frequently held to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country. The moral doctrine of fundamental rights aims at identifying the basic prerequisites for each human being leading a minimally good life. They are those rights without which neither liberty nor justice would exist. They are freedoms essential to the concept of ordered liberty, inherent in human nature and consequently inalienable. They are rights that belong without presumption or cost of privilege to all human beings. The right to fair hearing shares this special nature with the other fundamental rights. In Torri V. National Park Service of Nigeria (2011) 13 NWLR (pt 1264) 365, the Supreme Court said that the right of fair hearing is an extreme fundamental right under the Nigeria Constitution and it is an inalienable right of an accused person. In Olufeagba V. Abdul-Raheem supra, the Supreme Court also; stated that fair hearing is a fundamental right of which a citizen cannot be unjustly stripped. The Courts have consistently stated that the right of a person to fair hearing is so fundamental to our concept of justice that it can neither be waived nor taken away by a statute, whether expressly or by implication and it cannot be compromised in any way by any person or authority neither can its breach be acquiesced to – Ariori V. Elemo supra, Pan African Bank Ltd Vs Ubani (1999) 13 NWLR (Pt 633) 166, Bamgboye v. University of Ilorin supra, Kenon V. Tekam (2001) 14 NWLR (pt 732) 12, Afonja Community Bank (Nig) Ltd V. Akpan (2002) 16 NWLR (pt 792) 154, Olufeagba V. Abdul-Raheem supra, First Bank of Nigeria Plc V. TSA Industries Ltd (2010) 15 NWLR (pt 1216) 247.” Per ABIRU, J.C.A.
“Now, the conclusion derivable from the finding that the lower Court breached the right of fair hearing of the Appellant on the first issue for determination is that the entire proceedings before the lower Court are null and void. The position of the Supreme Court is that where such a conclusion is arrived at by an appellate Court in the course of considering a matter, to proceed thereafter to consider the merits of the decision arrived at by such a proceeding is a futile exercise. The point was succinctly made by Tobi, JSC in Orugbo v. Una (2002) 16 NWLR (pt 792) 175 at 199 A-D thus: “The fair hearing principle entrenched in the constitution is so fundamental in the judicial process or the administration of justice that breach of it will vitiate or nullify the whole proceedings, and a party cannot be heard to say that the proceedings were properly conducted and should be saved because of such proper conduction. Once an appellate court comes to the conclusion that there is a breach of the principle of fair hearing, the proceedings cannot be salvaged as they are null and void ab initio. After all, fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision. Accordingly, where a court arrives at a correct decision in breach of the principle of fair hearing, an appellate court will throw out the correct decision in favour of the breach of fair hearing.” Similarly, in Idakwo v. Ejiga (2002) 13 NWLR (pt 783) 156, Ayoola, JSC at page 165 E-H stated thus: “The question of fairness of a proceeding is quite separate from the question of the merit of the trial court’s decision. When a question of fairness of hearing arises in a case the only purpose that could have been served by the appellate court considering, albeit in a restricted manner, issue of the merits of the case, in my opinion, is to see whether the result of the case would have been the same even if the breach of the principle of fair hearing had not occurred. Whether that exercise will serve any useful purpose will normally depend on the nature of the breach. In my opinion, where it will be a matter of speculation whether the same decision would have been arrived at had a hearing not tainted by unfairness taken place, an enquiry into the merits is a futile exercise. I would even go as far as saying that an unfair method cannot produce a fair result.” Similar statements were made by the Supreme Court in Olufeagba V. Abdul-Raheem supra and in Torri V. National Park Service of Nigeria supra. In First Bank of Nigeria Plc V. TSA Industries Ltd supra, the Supreme Court opined that any judgment or ruling reached in breach of the right of fair hearing will not be allowed to stand on appeal irrespective of the merits of the case.” Per ABIRU, J.C.A.
“The complaint of the Appellant in the first issue for determination in this appeal is that he was not given a fair hearing by the learned Trial Judge. Fair hearing, which is the same as fair trial, entails so much in the judicial process. As a matter of law, it is the pivot upon which the entire judicial process or the administration of justice revolves. It is the keystone of the trial process as no trial can be sustained unless it accords with the principles of fair hearing, which also involves the twin common law rules of natural justice rules, audi alteram partem and nemo judex in causa sua – Emerah V. Chiekwe (1996) 7 NWLR (Pt 462) 536, Okeke v. Nwokoye (1999) 13 NWLR (Pt 635) 495.” Per ABIRU, J.C.A.
In The Court of Appeal of Nigeria
On Tuesday, the 12th day of February, 2013
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Kano State High Court in Suit No K/51/1998 delivered by Honorable Justice Umaru Mohammed Alkali (now deceased) on the 15th of June, 2004. The claims of the Appellant, as plaintiff, in the suit were for:
i. A declaration that the Plaintiff is the rightful and legal owner of the said farmland at Koya Village in Gwarzo Local Government Area of Kano State.
ii. A declaration that the Defendants whether by themselves or their servants, agents and/or privies are not entitled to enter of use the said farmland or any part thereof.
iii. A perpetual injunction restraining the Defendants whether by themselves or their servants, agents and/or privies or otherwise from entering, using or tampering with the said piece of land or any part thereof in any manner.
iv. The sum of N80,000.00 being special damages for the Plaintiffs cash crops burnt down by the Defendants.
v. The sum of N100,000.00 being general damages for trespass over the Plaintiffs farmland by the Defendants.
Pleadings were exchanged between the parties and the matter went to trial. In a judgment delivered on the 15th of June, 2004, the claims of the Appellant were dismissed by the lower Court. The Appellant was dissatisfied with the decision and he filed a notice of appeal dated the 23rd of August, 2004 against the judgment. The notice of appeal consisted of four grounds of appeal.
The Appellant sought for and obtained the order of this Court extending the time to seek leave as well as leave to compile and transmit the records of appeal in this matter and the records of appeal compiled and transmitted by him were deemed proper on the 27th of March, 2012. In compliance with the Rules of this Court, the Appellant filed a brief of arguments dated the 296 of March, 2012 on the 30th of March, 2012 and it consisted of seven pages. The Respondents filed a brief of arguments consisting of fourteen pages and dated the 19th of April, 2012 in response. At the hearing of the appeal on the 14th of January, 2013, Counsel to the Appellant and Counsel to the Respondents relied on and adopted their respective briefs of arguments.
In his brief of arguments, Counsel to the Appellant distilled two issues for determination from the four grounds of appeal and these were:
i. Whether or not the learned Trial Judge did not infringe upon the Plaintiffs right of fair hearing when he suddenly stopped the Plaintiffs Counsel from further cross examining a witness and unilaterally refused the Plaintiff the right of address (distilled from Ground One of the Notice of Appeal).
ii. Whether or not, in the light of the evidence before the Court, the decision of the learned Trial Judge is not perverse (distilled from Grounds Two to Four of the Notice of Appeal).
Counsel to the Respondents agreed, in principle, with the two issues formulated by the Appellant’s Counsel but suggested a reformulation of the first issue for determination thus:
i. Whether the learned Trial Judge did infringe upon the Plaintiff’s right to fair hearing when he stopped the Plaintiff’s Counsel from further cross examining a witness and adjourned the matter for judgment without hearing the addresses of the Parties.
Reading through the records of appeal, it is the view of this court that the Respondents’ reformulation of the issue of fact hearing raised by the Appellant as the first issue for determination better reflects the facts and circumstances of this matter and it shall be adopted as the first issue for determination in this appeal.
On the first issue for determination, Counsel to the Appellant stated in his brief of arguments that there was no doubt from the contents of the records of appeal that the learned Trial Judge stopped the counsel to the Appellant from further cross-examining a witness of the Respondents in the course of proceedings and, on his own, dispensed with the issue of addresses by Counsel and adjourned the matter for judgment Counsel submitted that these actions of the learned Trial Judge amounted to a breach of the right of the Appellant to fair hearing and he referred to the cases of Okereke v. Ibe (2010) All FWLR (pt 516) pg 516 and Alhassan v. Abu Zaria (2010) All FWLR (pt 538) pg 1001. Counsel submitted that the refusal of the lower Court to take addresses from Counsel to the parties affected its appraisal of the facts and law applicable to the matter and thereby occasioned a miscarriage of justice. Counsel further submitted that the consequence of a trial conducted in breach of the principle of fair hearing is that the entire trial becomes nullified and he referred to the case of Federal Republic of Nigeria v. Akubueze (2011) All FWLR (Pt 555) Pg. 204. Counsel urged the court to declare the trial in the matter a nullity.
On the second issue for determination, Counsel to the Appellant traversed through portions of the testimonies of the defence witnesses and submitted that apart from the fact that the testimonies did not discharge the onus on the Respondents to prove positive averments in their pleadings, the testimonies contained material contradictions and were in support of the case put forward by the Appellant. Counsel submitted that in the light of the glaring deficiencies in the testimonies of the defence witnesses, the lower Court was in error in choosing to prefer the case put forward by the Respondents instead of the unshakeable case of the Appellant. Counsel urged this Court to resolve the second issue for determination in favour of the Appellant.
In hrs response argument on the first issue for determination, Counsel to the Respondents conceded that the learned Trial Judge indeed stopped the Counsel to the Appellant from further cross-examining a witness of the Respondents in the course of proceedings and also that the learned Trial Judge, on his own, dispensed with the issue of addresses by Counsel and adjourned the matter for judgment. Counsel stated that the records of appeal revealed that the learned Trial Judge so acted because of the unruly conduct of the Counsel to both parties in the matter and because of the age of the case, about six years old. Counsel stated that the Appellant’s Counsel did not complain in the open Court about the closure of the further cross-examination of the defence witness and did not file an application thereafter to recall the witness for further cross examination. Counsel further stated that neither of the parties complained about the denial of their right of address by the lower Court and neither of them applied to exercise the right and that the Appellant’s Counsel did not object to the adjournment of the matter for judgment.
Counsel submitted that the lack of complaints and the refusal of the Appellant’s Counsel to insist on the exercise of the rights amounted to consent to the actions of the lower Court and that having consented to the proceedings adopted, the said actions cannot constitute denial of the right the Appellant to far hearing and he referred to the case NNPC V. Clifco Ltd (2011) 4 SCNJ 107. Counsel submitted that the cases relied on by the Counsel to the Appellant in his brief of arguments were inapplicable in the circumstances of this case and he referred to the cases of Masheshe General Merchants Ltd V. Nigeria Steel Products Ltd (1987) 1 NWLR (Pt 55) 111 and Okoye V. Anyanwoko (2011) 28 WRN 156 on the role of Counsel in the handling a matter. Counsel urged the Court to resolve the first issue for determination in favour of the Respondents.
On the second issue for determination, Counsel to the Respondents also traversed through the testimonies of the defence witnesses and submitted that there were no material contradictions in the testimonies and that the testimonies were in accord with the case of the Respondents on the pleadings and that the testimonies discharged the onus on the Respondents to prove the positive averments in their pleadings. Counsel submitted that the realm of believing witnesses was within the prerogative of the trial Judge and that the learned Trial Judge in the instant case clearly acted within the precincts of the law and relied on the evidence led by the parties in believing the case put forward by the Respondents and in disbelieving the case of the Appellant.
Counsel submitted that the case of the Appellant before the lower Court suffered from a dearth of evidence to support it and that no part of the testimonies of the defence witnesses supported the case of the Appellant. Counsel urged this Court to resolve the second issue for determination in favour of the Respondents.
The complaint of the Appellant in the first issue for determination in this appeal is that he was not given a fair hearing by the learned Trial Judge. Fair hearing, which is the same as fair trial, entails so much in the judicial process. As a matter of law, it is the pivot upon which the entire judicial process or the administration of justice revolves. It is the keystone of the trial process as no trial can be sustained unless it accords with the principles of fair hearing, which also involves the twin common law rules of natural justice rules, audi alteram partem and nemo judex in causa sua – Emerah V. Chiekwe (1996) 7 NWLR (Pt 462) 536, Okeke v. Nwokoye (1999) 13 NWLR (Pt 635) 495.
Fair hearing postulates that where a person’s legal rights or obligations ate called into question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regard to such rights or obligations. It is an indispensable requirement of justice that an adjudicating authority, to be fair and just, shall hear both sides, giving them ample opportunity to present their case. Accordingly, a hearing can only be said to be fair when, inter alia, all the parties to the dispute are give n a hearing or an opportunity of a hearing. If one of the parties is refused or denied a hearing or is not given an opportunity to be heard, such hearing cannot qualify as a fair hearing under the audi alteram partem rule Otapo V. Sunmonu (1987) 2 NWLR (pt 58) 587, Gakus V. Jos International Breweries Ltd. (1991) 6 NWLR (Pt 199) 614, Olumesan V. Ogundepo (1996) 2 NWLR (pt 433) 628.
Fair hearing requires that a party to a cause must be given the opportunity to put forward his case fully and freely and to apply to the court to hear any material witness and consider relevant documentary evidence with a view to reaching a fair and just decision in the matter – Ekiyor V. Bomor (1997) 9 NWLR (Pt 519) 1. The rule of fair hearing is not a technical doctrine. It is one of substance. The question is not whether injustice has been done because of lack of hearing. It is whether a party entitled to be heard before deciding had in fact been given an opportunity of being heard. Once an appellate Court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opportunity of a hearing, the judgment entered is bound to be set aside – Kotoye V. Central Bank of Nigeria (1989) 1 NWLR (Pt 98) 419, Olumesan V. Ogundepo supra, Ogundoyin V. Adeyemi (2001) 13 NWLR (pt 730) 403, Olufeagba V. Abdul-Raheem (2009) 18 NWLR (pt 1173) 384.
This right to be heard is so fundamental a principle of our adjudicatory process that it cannot be compromised on any ground – Nwokoro V. Onuma (1990) 3 NWLR (Pt 136) 22 at 35, Iwuoha V. Okoroike (1996) 2 NWLR (Pt 429) 231, Olufeagba V. Abdul-Raheem supra. It is perhaps to underscore the inviolability of this right of a party to a dispute to fair hearing that a provision guaranteeing the right to every citizen of this country is firmly ensconced in section 36 of the Constitution of the Federal Republic of Nigeria 1999. Hence, fair hearing is not only a common law right but also a constitutional right – Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt 622) 290, Agip (Nig) Ltd V. Agip Petrol International & Ors (2010) 5 NWLR (pt 1187) 348, Agbiti V. Nigerian Navy (2011) 4 NWLR (pt 1236) 175. The Courts are unanimous that any breach of the right to fair hearing, particularly in trials, naturally vitiates such proceedings and renders the same null and void – Akoh V. Abuh (1938) 3 NWLR (Pt 85) 696, Ceekay Traders Ltd V. General Motors Co. Ltd (1992) 2 NWLR (Pt 222) 132, Oyeyemi V. Commissioner for Local Government, Kwara State (1992) 2 NWLR (Pt 226) 661, Military Governor of Imo State V. Nwauwa (1997) 2 NWLR (Pt 490) 675, Olufeagba V. Abdul-Raheem supra, Agip (Nig) Ltd V. Agip Petroli International & Ors supra, Agbiti V. Nigerian Navy sapra.
The case of the Appellant on the issue of breach of fair hearing was that in the course of the proceedings before the trial Court, the learned Trial Judge stopped his Counsel from further cross-examining a witness of the Respondents and the trial Judge thereafter, on his own, dispensed with the issue of addresses by both Counsel and adjourned the matter for judgment. The Respondents conceded that these actions of the learned Trial Judge complained about by the Appellant did occur in the course of the proceedings at the trial. The records of appeal show that the Appellant, as plaintiff in lower Court, called four witnesses in proof of his case and the witnesses were duly cross-examined by Counsel to the Respondents, as defendants. The records of appeal show that the Respondents called three witnesses in proof of their defence and that Counsel to the Appellant fully cross-examined the first and second defence witnesses.
With regard to the third defence witness, the records of appeal show that in the course of cross-examination by the Appellant’s Counsel, the Court stated thus:
“Enough of cross-examination because of behaviours of counsels. Adjourned to 25-4-2004 for judgment. The court will review the testimonies in the case and because of the age of the case there will be no order for addresses” (see lines 3 to 5 of page 31 of the records).
The learned trial Judge proceeded thereafter to deliver judgment in the matter on the 15th of June 2006.
The question that arises on the first issue for determination is – whether the actions of the learned trial Judge in stopping the Counsel to the Appellant from further cross-examining the third defence witness and in not affording the Counsel to the Appellant the opportunity of rendering a final address before judgment was given amounted to a breach of the right of the Appellant to fair hearing? Now, the term “fair hearing” has been judicially interpreted to involve situations where, whether having regard to all the circumstances of a case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the tribunal was fair to all the parties to the proceedings. It is said to mean a trail conducted according to all the legal rules formulated to ensure that justice is done to all the parties to a cause or matter – Ariori V. Elemo (1983) 1 SCNLR 1, Kuusu V. Udom (1990) 1 NWLR (pt 127) 421, Okafor V. Attorney General, Anambra State (1991) 6 NWLR (Pt 200) 659 at 678, Military Governor of Imo State V. Nwauwa supra, Bamgboye v. University of Ilorin supra, Kalu v. State (2011) 4 NWLR (Pt 1238) 429. Fair hearing also postulates that parties have a right to be heard at every material stage of the proceedings Ekuma V. Silver Eagle Shipping Agencies PH Ltd (1987) 4 NWLR (pt 65) 472 at 486, Agbahomovo V. Eduyegbe (1999) 3 NWLR (Pt 594) 170, and Agbiti V. Nigerian Navy supra.
Without doubt, one of the legal rules formulated to ensure that justice is done to all the parties to a cause or matter in a trial is the right of a party to cross-examine the witnesses presented by his adversary. There are copious provisions in sections 214 (2), 215 (1) & (2), 216, 217, 219 and 223 of the Evidence Act 2011 dealing with the right of cross-examination of witnesses. In Independent National Electoral Commission V. Ifeanyi (2010) 1 NWLR (pt 1174) 98, the Court of Appeal stated:
“The defendant or respondent, as the case may be, is at liberty, after the plaintiff or petitioner has called his witnesses who gave evidence-in-chief… to cross-examine the witnesses by putting many questions as are material to his own case and to test whether or not the witnesses are speaking the truth. Indeed, the respondent could even be “cross” with the witnesses under cross-examination as the name implies.”
The aim of cross-examination is to enable the cross-examining party to demolish or weaken the case of the party being cross-examined and also to afford the cross-examining party the opportunity of stating or presenting his case through the witness of the opponent. As stated by the learned authors of Phipson on Evidence 12th Edition paragraph 1592:
“All cross-examination must be relevant to the issue or to the witness’s credit. The object of cross-examination is two-ford – to weaken, qualify or destroy the case of the opponent; and to establish the party’s own case by means of his opponent’s witnesses.”
This right of cross-examination is considered to be of fundamental importance in the trial process and any attempt by the trial court to deny or circumscribe the right of a party to cross-examine his adversary’s witness of witnesses, in any manner whatsoever, is frowned upon by the appellate court and treated as a breach of fair hearing – Iwuoha v. Okoroike supra, Tewogbade v. Agbabiaka (2001) 5 NWLR (pt 705) 38, Psychiatric Hospital Management Board v. Edosa (2001) 5 NWLR pt 707) 612. A trial Judge cannot restrain a party from asking question of witnesses at crucial stages of proceedings – Agbahomovo V. Eduyegbe supra.
It is also without doubt that the right of a party to a case to address the court after close of evidence is another of the legal rules formulated to ensure that justice is done to all the parties to a cause or matter in a trial. The hearing of addresses by every court established by the constitution of the Federal Republic of Nigeria 1999 is of constitutional importance by virtue of section 294 (1) of the constitution which recognizes the right of parties to a suit to render addresses before judgment is delivered. The section reads:
“Every court established under this constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”
This point was made in the cases of Ndu V. State (1990) 7 NWLR (pt 164) 550 at 560, Amough V. Zaki (1998) 3 NWLR (pt 542) 483, Offor V. State (1999) 12 NWLR (pt 632) 608. Order 37 Rule 15 of the High Court of Kano Civil Procedure Rules 1988, the rules that guided the procedure in the lower Court in this matter, also made provisions for addresses to be rendered by parties after close of evidence. Address of counsel forms part of a party’s case and failure to hear the address of a party, however overwhelming the evidence on one side, taints the trial because in many cases, it is after the addresses that the court finds that the law on the issue fought is not in favour of the evidence. The totality of a case heard entails not only the evidence but also the addresses of counsel. Thus, the Courts have held that the denial of a party’s Counsel of the opportunity of addressing the Court, where established and proved, is not a mere irregularity but a defect in proceedings which strikes at the right of the party to fair hearing thereby rendering the proceedings a nullity – Obodo V. Olomu (1987) 3 NWLR (pt 59) 111, Salami V. Odogun (1991) 2 NWLR (Pt 173) 291 at 301, Oyekan V. Akinrinwa (1996) 7 NWLR (pt 459) 128, First Bank of Nigeria Plc V. Ejikeme (1996) 7 NWLR (Pt 462) 597, Duba V. Saleh (1997) 1 NWLR (pt 488) 502, Eagle Construction Ltd V. Onibugadu (1998) 1 NWLR (pt 533) 231, Kalu V. State (2011) 4 NWLR (pt. 1238) 429.
Counsel to the Respondents has urged this Court not treat the actions of the learned trial Judge as amounting to a denial of the right of the Appellant to fair hearing in the circumstances of this case. Counsel predicated this plea on the facts that the Counsel to the Appellant neither complained in the open Court about the closure of the further cross-examination of the defence witness nor filed an application thereafter to recall the witness for further cross examination and also that Counsel to the Appellant did not complain about the denial of the right of address by the lower Court and did not apply to exercise the right or object to the adjournment of the matter for judgment. Counsel submitted that the lack of complaints and the refusal of the Appellant’s Counsel to insist on the exercise of the rights amounted to consent to the actions of the lower Court.
With respect to Counsel, his submission portrays a seeming lack of understanding of the concept of fair hearing. The right to fair hearing is one of the rights included in the conglomeration of rights referred to as fundamental rights. Now, fundamental rights have been defined as basic moral guarantees that people in all countries and cultures allegedly have simply because they are people. In Ransome-Kuti V. Attorney General of the Federation (1985) 2 NWLR (Pt 6) 211 at 230, Eso, JSC stated that a fundamental right “is a right which stands above the ordinary laws of the land and which are in fact antecedent to the political society itself” and “it is a primary condition to civilized existence”. Fundamental rights are rights derived from natural or fundament law – Igwe V. Ezeanochie (2010) 7 NWLR (Pt 1192) 61. In the words of Jacques Maritain:
“The human person possesses rights because of the very fact that it is a Person’ a whole, master of itself and of his acts, and which consequently is not merely a means to an end but an end, an end which must be treated as such. These are things which are owed to man because of the very fact that he is a man” (Jacques Maritain, The Rights of Man and Natural Law 65 (D. Anson tans. 1943)
Calling these basic moral guarantees “rights” suggests that they attach to particular individuals who can invoke them, that they are of high priority, and that compliance with them is mandatory rather than discretionary. Fundamental rights are frequently held to be universal in the sense that all people have and should enjoy them, and to be independent in the sense that they exist and are available as standards of justification and criticism whether or not they are recognized and implemented by the legal system or officials of a country. The moral doctrine of fundamental rights aims at identifying the basic prerequisites for each human being leading a minimally good life. They are those rights without which neither liberty nor justice would exist. They are freedoms essential to the concept of ordered liberty, inherent in human nature and consequently inalienable. They are rights that belong without presumption or cost of privilege to all human beings.
The right to fair hearing shares this special nature with the other fundamental rights. In Torri V. National Park Service of Nigeria (2011) 13 NWLR (pt 1264) 365, the Supreme Court said that the right of fair hearing is an extreme fundamental right under the Nigeria Constitution and it is an inalienable right of an accused person. In Olufeagba V. Abdul-Raheem supra, the Supreme Court also; stated that fair hearing is a fundamental right of which a citizen cannot be unjustly stripped. The Courts have consistently stated that the right of a person to fair hearing is so fundamental to our concept of justice that it can neither be waived nor taken away by a statute, whether expressly or by implication and it cannot be compromised in any way by any person or authority neither can its breach be acquiesced to – Ariori V. Elemo supra, Pan African Bank Ltd Vs Ubani (1999) 13 NWLR (Pt 633) 166, Bamgboye v. University of Ilorin supra, Kenon V. Tekam (2001) 14 NWLR (pt 732) 12, Afonja Community Bank (Nig) Ltd V. Akpan (2002) 16 NWLR (pt 792) 154, Olufeagba V. Abdul-Raheem supra, First Bank of Nigeria Plc V. TSA Industries Ltd (2010) 15 NWLR (pt 1216) 247. What the lower Court did in instant case was to take away the right of the Appellant to fully cross-examine the third defence witness and the right of the Appellant to deliver a final address. The lower Court had no such power. Thus, the question of whether or not the appellant made any complain about these actions to the lower Court or failed to insist on the rights is of no relevance to the determination of the issue of fair hearing.
Counsel to the Respondents also seemed to suggest that the reason for the actions of the lower Court were altruistic because the trial Judge was swayed to so act by the behavior of the Counsel and the age of the case, which at the time was six years old, and that as such the lower Court cannot be said to have breached the right of fair hearing of the Appellant. Again, with respect to Counsel, the reasons for the actions of the lower Court are completely irrelevant to the resolution of the issue of fair hearing. When an allegation of breach of the right of fair hearing is made against an adjudicator, the intention or motive of the adjudicator is immaterial. The Court is concerned with the impression that right minded persons would have of the circumstances – First Bank of Nigeria Plc Vs Ejikeme supra, Mohammed V. The Nigerian Army (1998) 7 NWLR (pt 557) 232. The rules of natural justice cannot be circumvented by an adjudicator on the ground that it is not convenient to observe its tenets – Adeyanju V. West African Examination Council (2002) 13 NWLR (pt 785) 479. In Bonkolans Investment Ltd V. Central Securities Clearing Systems Ltd (2010) 5 NWLR (pt 1186) 186, the Court of Appeal stated:
‘There is no principle of equity that can be invoked to justify denial of fair hearing. This is because the concepts of equity and justice by their nature demand that when what a court will end up doing will materially affect someone, that that Person should be heard.
The actions of the learned trial Judge in circumscribing the right of the Appellant to fully cross-examine the third defence witness and in denying the Appellant a right of address after the close of evidence were clearly in breach of the Appellant’s right to fair hearing. The first issue for determination is thus resolved in favour of the Appellant.
This takes us to the second issue for determination i.e. whether or not, in the light of the evidence before the Court, the decision of the learned Trial Judge is not perverse. Now, the conclusion derivable from the finding that the lower Court breached the right of fair hearing of the Appellant on the first issue for determination is that the entire proceedings before the lower Court are null and void. The position of the Supreme Court is that where such a conclusion is arrived at by an appellate Court in the course of considering a matter, to proceed thereafter to consider the merits of the decision arrived at by such a proceeding is a futile exercise. The point was succinctly made by Tobi, JSC in Orugbo v. Una (2002) 16 NWLR (pt 792) 175 at 199 A-D thus:
“The fair hearing principle entrenched in the constitution is so fundamental in the judicial process or the administration of justice that breach of it will vitiate or nullify the whole proceedings, and a party cannot be heard to say that the proceedings were properly conducted and should be saved because of such proper conduction. Once an appellate court comes to the conclusion that there is a breach of the principle of fair hearing, the proceedings cannot be salvaged as they are null and void ab initio. After all, fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision. Accordingly, where a court arrives at a correct decision in breach of the principle of fair hearing, an appellate court will throw out the correct decision in favour of the breach of fair hearing.”
Similarly, in Idakwo v. Ejiga (2002) 13 NWLR (pt 783) 156, Ayoola, JSC at page 165 E-H stated thus:
“The question of fairness of a proceeding is quite separate from the question of the merit of the trial court’s decision. When a question of fairness of hearing arises in a case the only purpose that could have been served by the appellate court considering, albeit in a restricted manner, issue of the merits of the case, in my opinion, is to see whether the result of the case would have been the same even if the breach of the principle of fair hearing had not occurred. Whether that exercise will serve any useful purpose will normally depend on the nature of the breach. In my opinion, where it will be a matter of speculation whether the same decision would have been arrived at had a hearing not tainted by unfairness taken place, an enquiry into the merits is a futile exercise. I would even go as far as saying that an unfair method cannot produce a fair result.”
Similar statements were made by the Supreme Court in Olufeagba V. Abdul-Raheem supra and in Torri V. National Park Service of Nigeria supra. In First Bank of Nigeria Plc V. TSA Industries Ltd supra, the Supreme Court opined that any judgment or ruling reached in breach of the right of fair hearing will not be allowed to stand on appeal irrespective of the merits of the case.
The resolution of the second issue for determination in this appeal requires this Court to delve into the merits of this matter as made out in the proceedings before the lower Court. This Court will decline to do so as it will amount to an exercise in futility. This Court will thus rest its consideration of this appeal on the resolution of the first issue for determination only.
In conclusion, this Court finds and holds that this appeal has merits and it hereby succeeds. The judgment of the Kano State High Court in Suit No K/51/1998 delivered by Honorable Justice Umaru Mohammed Alkali (now deceased) on the 15th of June, 2004 is hereby set aside. This case is remitted to the Kano State High Court for a retrial. The Appellant is awarded the costs of this appeal assessed at N30,000.00.
These shall be the orders of this Court.
ABDUL ABOKI, J.C.A.: I have the privilege of reading before now the lead judgment of my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU JCA, which has just been delivered. I entirely agree with his conclusion that this appeal is meritorious and ought to be allowed. I also set aside the decision of the Kano State High Court in Suit No. K/51/1998 delivered on 15th June, 2004 and order that the Chief Judge of Kano State to reassign the case for retrial before another Judge of the Court. I abide by the consequential order as to costs contained therein.
ITA G. MBABA, J.C.A.: I have had the advantage of reading in draft the judgment just delivered by my learned brother H.A. ABIRU JCA. I agree, completely, with his reasoning and conclusion and hereby adopt the same as mine.
It is ironical that the learned trial judge, while apparently trying to speed up the hearing of the case, which he appeared to be unduly concerned about its age (6 years old), rather became the cause of frustrating the entire effort put into the trial of the case for the 6 years. This is because his stampede and force of the Counsel to stop further cross examination of the witness, and hurrying into delivery of judgment, without taking final addresses of the Counsel as the law directs, rather further delayed the trial of the case, as those interventions were obvious acts of interference with the principles/rights of fair hearing of the parties, concerned, sending the case back to square one!
The right to fair hearing under section 36 (6) of the 1999 Constitution in a criminal charge (and this also applies in civil trial) includes the right:
“(b) to be given adequate time and facilities for the preparation of his defence (and)
(d) to examine in Person or by his legal practitioner the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of the witnesses to testify on his behalf before the court on the same conditions as those applying to the witnesses called by the prosecution.”
Though the above provisions were aimed, principally, at ensuring fair trial of an accused in a criminal charge, the same principles hold true in civil trial, too, abhorring and rejecting anything that would constitute a block to the flow of evidence to do justice in a case.
The trial court cannot resort to the alleged conduct of the Counsel in the case to deny a party room to cross examine a witness through. Every judge has power to control his court, and that includes control of the conduct of people in the court, including Counsel, who are, infact, ministers on the temple of justice, and expected to work with the judge to maintain the purity and integrity of the temple (court), and risking contempt (as every other person) if found defiling the temple! Thus, if the conduct of Counsel on that date was unbecoming (and the court did not explain!), it was not valid reason to shut the party out!
Section 294 (1) of the 1999 Constitution (as amended) seems to require final addresses by Counsel as part of what constitutes conclusion of trial, to enable the court to write its judgment. The address is meant to articulate the evidence adduced and marry it with the law, from the perspective of each party to the trial, to assist the court in formulating the law and reaching its conclusion. It can only be dispensed with, with the consent or option, or inaction of Counsel in the case. See the case of NDU V. STATE (1990) 7 NWLR (Pt. 164) 550 held 2 and 3:
2. “It is generally accepted that the hearing of addresses from Counsel before delivery of judgment is an important exercise in judicial proceedings in our courts and the denial of the right of a party to address the court at the close of evidence may render the entire proceedings a nullity if miscarriage of justice occasion.
3. The hearing of addresses by every court established by the Constitution is recognized by the Constitution. By virtue of section 258 (1) of the 1979 Constitution, it is to be given before judgment is delivered. However, just as a party is not compellable to give evidence to prove his case, so is a party not compellable to address the court where he has a right to do so? But when the right exists, a party must not be denied that right. In the instant case, it is clear that Counsel for the appellant was called upon to address the court after he had closed the case for the defence. It is therefore not correct that the defence was not afforded opportunity to address the court. (OBODO V. OLOMU (1987) 3 NWLR (Pt. 59) 111 referred to and adopted but distinguished on the facts).
With this and the more elaborate reasons by my learned brother, I too allow the appeal and remit the case back to the lower court, for retrial. I abide by the consequential orders in the lead judgment.
Appearances
M. N. DuruFor Appellant
AND
Ishiaku Y. HaliruFor Respondent
