TOYIN ALHAJI BABA v. MRS. COMFORT LUCKY IYEGHE
(2019)LCN/12843(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2019
CA/J/267/2009
RATIO
FUNDAMENTAL RIGHT: FAIR HEARING
The denial of fair hearing is a breach of one of the rules of natural justice See Citec Int.l Estates Ltd. Vs. Francis (supra); Ndukauba Vs. Kolomo (2005)4 NWLR (Pt. 915) 411 and Statoil (Nig) Ltd. Vs. Inducon (Nig.) Ltd. (supra). A fair hearing means a fair trial. A fair trial consists of the whole hearing. See Unongo Vs. Aku (1983)2 SCNR 332. In the instant case, there is no whole trial…The denial of fair hearing is a breach of one of the rules of natural justice See Citec Int.l Estates Ltd. Vs. Francis (supra); Ndukauba Vs. Kolomo (2005)4 NWLR (Pt. 915) 411 and Statoil (Nig) Ltd. Vs. Inducon (Nig.) Ltd. (supra). A fair hearing means a fair trial. A fair trial consists of the whole hearing. See Unongo Vs. Aku (1983)2 SCNR 332. In the instant case, there is no whole trial.” PER TANI YUSUF HASSAN, J.C.A.
INTERPRETATION: FUNCTUS OFFICIO
“…a Court is functus officio from reviewing or varying its decision after delivering final judgment and necessary consequential orders made. See Citec Int.l Estates Ltd. Vs. Francis (2014)8 NWLR (Pt. 1408) 139 and Statoil (Nig) Ltd. Vs. Inducon (Nig.) Ltd. (2014)9 NWLR (Pt. 1411) 43 at 54.” PER TANI YUSUF HASSAN, J.C.A.
JUSTICES
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
Between
TOYIN ALHAJI BABA Appellant(s)
AND
MRS. COMFORT LUCKY IYEGHE Respondent(s)
TANI YUSUF HASSAN, J.C.A. (Delivering the Leading Judgment):
This Interlocutory appeal is against the decision of Plateau State High Court sitting at Jos, delivered on the 16th day of March, 2009 by Honourable Justice Y.G. Dakwak in Suit No. PLD/J/125/2001.
The respondent as plaintiff at the lower Court instituted an action against the appellant as defendant therein, claiming:
1. A declaration that the plaintiff is entitled to plot of land with Certificate of Occupancy No. BL 229 situated, lying and located at Barkin Ladi in Ropp District, in Barkin Ladi Local Government Area of Plateau State.
2. A perpetual injunction restraining the defendant, his agents or privies from tempering or doing anything whatsoever on the landed property with Certificate of Occupancy No. BL 229 situated, lying and located at Barkin Ladi in Ropp District, in Barkin Ladi Local Government Area of Plateau State.
3. One Million Naira (N1,000,000.00) general damages for trespass unto the property in question.
4. The cost of this action and any other relief(s) which the Court considers appropriate in the circumstances.
After the exchange of pleadings between the parties, trial commenced, with the plaintiff/respondent. The defendant/appellant?s inability to open his defence after series of adjournments, case for the defendant/appellant was said to be closed on 28th March, 2006 by the trial Court.
The defendant/appellant by a Motion on Notice dated and filed on the 4th day of May, 2007, prayed the lower Court for the following orders:
1. An order setting aside the order made on the 28th of March, 2006, closing the defendant?s case in the absence of his counsel.
2. An order granting the defendant leave to defend the suit on the merit.
3. And for such further or other orders as the honourable Court may deem fit to make in the circumstances.
The Motion was supported by a fourteen paragraph affidavit deposed to by the defendant/appellant.
The plaintiff/respondent filed a counter affidavit of nine paragraphs in opposing the application.
The trial judge in a considered ruling delivered on the 16th of March, 2009 refused the application in its entirety.
Dissatisfied with the ruling of the lower Court, the defendant/appellant appealed to this Court on a Notice of Appeal dated and filed on the 28th of June, 2012 containing four grounds of appeal with their particulars and reliefs sought.
The appellant?s brief was dated and filed on the 21st of March, 2016 and deemed properly filed on 5th of April, 2016. The two issues distilled thereon for determination are:
1. Whether the learned trial Court judicially and judiciously exercised its discretion in refusing the defendant/applicant?s application to set aside its decision of 28th March, 2006 (Grd 1)
2. Whether the trial Court committed fundamental breach and violation of the Appellant?s right to fair hearing entrenched in Section 36 of the 1999 Constitution, thereby occasioning a substantial miscarriage of justice by the trial Court?s failure and/or refusal to discharge its legal duty of evaluating and making its findings on various depositions in the affidavit evidence in its ruling? (Grds 2, 3 & 4).
After adoption of the brief by the learned counsel for the appellant, we are urged to allow the appeal. The respondent was absent and unrepresented on the 7th of February, 2019, the date fixed for the hearing of the appeal, despite hearing notice served on him on 5/2/2019. The appellant by a motion on notice dated and filed on the 20th of September, 2018 prayed this Court for the appeal to be heard on the appellant?s brief alone for failure of the respondent to file brief. The application was granted on 29th October, 2018. Hence, the Interlocutory appeal will be determined on the appellant’s brief alone with leave of the Court granted on the 14th of June, 2012. The two issues will be taken together.
ISSUE ONE
Whether the learned trial Court judicially and judiciously exercised its discretion in refusing defendant/applicant?s application to set aside its decision of 28th March, 2006.
ISSUE TWO
Whether the trial Court committed fundamental breach and violation of the Appellant’s right to fair hearing entrenched in Section 36 of the 1999 Constitution, thereby occasioning a substantial miscarriage of justice by the trial Court’s failure and/or refusal to discharge its legal duty of evaluating and making its findings on various depositions in the affidavit evidence in its ruling.
On the first issue, learned counsel for the appellant submitted that the trial Court has the power to set aside its order made upon disclosure of cogent reasons by the applicant to persuade the Court to exercise its discretion in his favour. That the grant or refusal of the application being at the discretion of the Court, the exercise of discretion must be judicially and judiciously. The Court was referred to Order 46 Rule 1 of the Plateau State High Court (Civil Procedure) Rules 1987 and the case of Nebo Vs. FCDA (1998)11 NWLR (Pt. 574) 480 at 491-492 para H-B.
Referring to the defendant/appellant?s affidavit in support of the application before the lower Court, particularly paragraphs 3-13 of the affidavit, it is submitted that, facts deposed therein warrant the trial Court to grant the said application, as the applicant deposed in paragraph 8 of the affidavit of his desire to defend the suit.
Learned counsel drew the attention of the Court to the conduct of the appellant before the lower Court throughout the period the matter was adjourned for defence. That from the record, on 2nd June, 2005 when the case came up for defence for the first time, the appellant was in Court while his counsel was absent. When the case came up for defence for the second time, the appellant and his counsel were in Court, but the appellant?s counsel applied to withdraw his representation for the defendant/appellant. On the 20th of February, 2006 when the case came up for defence for the 3rd time, the appellant was in Court with the new counsel he engaged. The counsel being new in the matter asked for an adjournment to enable him go through the record of proceedings. The adjournment was granted. That on all these occasions including the day the defence was closed on 28/3/2006, the appellant has always been in Court.
It is argued on behalf of the appellant that sufficient materials were placed to convince the trial Court to judicially and judiciously exercise its discretion in favour of the defendant/appellant. That the trial Court relied on wrong principle of law to refuse the application which occasioned a miscarriage of justice.
Relying on the case of Nnubia Vs. Attorney General, Rivers State (1991)3 NWLR (Pt. 593) 82 at 112-113, it is submitted that where exercise of discretion leads to miscarriage of justice, the Court of Appeal should interfere and we are urged to so hold.
Learned counsel contended that, if as the trial held that it has become functus officio to grant the application, it is argued that as the rights of the parties in the claim were not finally decided on its merit, the decision of the trial Court is not final in this case to stop him from considering the application. The Court was referred to Ukachukwu Vs. UBA (2006) ALL FWLR (Pt. 300) 1736 at 1749 para C-D; ALOR Vs. Ngene (2007)2 SC I and Western Steel Workers Ltd. Vs. Iron & Steel workers Union of Nigeria (1986) NWLR (Pt. 30) 617 among others.
On the 2nd issue, counsel argued that the lack of fair hearing contended is that the appellant’s affidavit evidence was never evaluated by the trial Court before its conclusion in refusing the application. Referring to the affidavit in support of the application to set aside the ruling of 28/3/2006, it is submitted, there is nowhere the trial Court evaluated the affidavit evidence as deposed, but only analyzed the counsel’s written addresses to arrive at its decision. That addresses of counsel are made to assist the Court and cases are decided on credible evidence before the Court. The case of Buhari Vs. Obasanjo (2005) ALL FWLR (Pt. 258) 1604 at 1731 was referred to.
It is finally submitted that if issue 1 is upheld that the trial Court has the inherent jurisdiction to set aside its decision which was not final, the Court is urged in the interest of justice and principle of fair hearing to set aside the ruling of the trial Court, delivered on 16th March, 2009.
The Supreme Court in Zakirai Vs. Muhammad (2017)17 NWLR (Pt. 1594) 181 at 192 held that judicial discretion is described as a sacred power that inheres to a judge, and which should employ judicially and judiciously. In the judicious and judicially exercise of discretion, a Court must be guided by the spirit and principle of law. The exercise has to be judicious in the sense that it must be based on sound decision marked by discretion, wisdom and good sense. See M.V Lupex Vs. N.O.C.S. Ltd. (2003)15 NWLR (Pt. 844) 469 and Eronini Vs. Iheuko (1989)2 NWLR (Pt. 101) 46.
For a party to succeed in showing that a trial judge exercised his discretion wrongly, he has the onus to justify the fact that the discretion was exercised in an arbitrary manner or without due regard to all the relevant considerations or that the trial judge engaged in the consideration of unnecessary factors or relied upon wrong principles.
In other words, to have the order made in exercise of Court?s discretion reversed, the appellant must show that the trial Court exercised its discretion wrongly or did not give due weight to relevant considerations, which resulted to injustice done to him.
In the instant case, when the matter came up for defence on 28th March, 2006 after four previous adjournments at the instance of the defence, the respondent?s counsel applied that the defendant/appellant be compelled to close his case. The defendant/appellant who was present in Court indicated that he was not ready to go on with his defence in the absence of his counsel. The Court did not make any order as to the closure of the case for defence but adjourned the matter to 9th May, 2006 for inspection of the land in dispute, as reflected at pages 133-134 of the record.
In paragraph 10 of the affidavit in support of the application, the defendant/appellant deposed to reasons for the absence of his counsel on 28th March, 2006, paragraph 10 reads:
That I am informed by S. Abor Esq. of counsel and I verily believe him to be saying the truth as follows:
(a) That he had prepared to come to Court and argue this application and when he was about to leave his office for the Court at about 8.45am the relations of his deceased Junior partner Emmanuel Sule Esq. came to discuss preparations for the burial arrangements with him.
(b) That considering that they had come all the way from Makurdi and wanted to leave that morning, he had to give them audience.
(c) That by the time he finished with them and got to court at 9:10am the plaintiff/respondent had applied and got his application struck out of the cause list.
(d) That his failure to be in court on time was not deliberate, nor borne out of spite for the court but due to unforeseen circumstances.
I have read and considered very carefully the processes filed in respect of the application and the counter affidavit as shown in the record of appeal as well as the ruling of the lower Court. The respondent’s counter affidavit was based on the fact that the appellant who filed a statement of defence was given ample opportunity to defend the action but failed to utilize same. The trial judge’s refusal to grant the application for the defendant/appellant to open his case is that the Court has no power of reviewing the order but a task that ordinarily belongs to the appellate Court. In other words the trial judge said he was functus officio.
I had recourse to the record of appeal. Both parties are to be blamed for the unnecessary delay in concluding this case filed in 2001. Both parties contributed to the delay by filing motions upon motions, change of counsel by both parties and unnecessary adjournments in the matter. It is therefore incorrect to say that all adjournments were at the instance of defence. The motion subject of this appeal was filed in 2007. But the ruling was delivered in 2009. In fact it is in the ruling of the 16th March, 2009 that the trial judge made a pronouncement refusing to grant leave to the defendant/appellant to open his defence.
With due respect to the learned trial judge, a Court is functus officio from reviewing or varying its decision after delivering final judgment and necessary consequential orders made. See Citec Int.l Estates Ltd. Vs. Francis (2014)8 NWLR (Pt. 1408) 139 and Statoil (Nig) Ltd. Vs. Inducon (Nig.) Ltd. (2014)9 NWLR (Pt. 1411) 43 at 54.
In the instant case, the ruling of the trial judge delivered on the 16th of March, 2009 is interlocutory as it has not determined the rights of both parties. It was therefore within the discretion of the trial judge to grant the application, more so when the reasons deposed to, in paragraph 10 of the affidavit in support of the application are cogent. It is also on record that the defendant/appellant was always in Court during the proceedings and the absence of his counsel should not be visited on him.
The defendant/appellant having established the reasons for the absence of his counsel on the 28th of March, 2006 when the case was fixed for defence, the trial Court ought to have granted the application for the defendant/appellant to open his defence, to save himself entering judgment in default of defence in a land matter which the law does not allow.
The question of fair hearing is not just an issue of dogma, whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case. The crucial determinant is the necessity to afford the parties equal opportunity to put their case to the Court before the Court gives its judgment Pam Vs. Mohammed (2008)16 NWLR (Pt. 1112).
The main complaint in this issue is the denial of the trial Court refusing the appellant?s application to open his defence. It is my view that the trial Court can grant the application based on the affidavit in support of the application reproduced above and the desire of the appellant to defend the suit. The application ought to be granted for the suit to be heard in its merit so as to do justice in the matter.
The denial of fair hearing is a breach of one of the rules of natural justice See Citec Int.l Estates Ltd. Vs. Francis (supra); Ndukauba Vs. Kolomo (2005)4 NWLR (Pt. 915) 411 and Statoil (Nig) Ltd. Vs. Inducon (Nig.) Ltd. (supra). A fair hearing means a fair trial. A fair trial consists of the whole hearing. See Unongo Vs. Aku (1983)2 SCNR 332. In the instant case, there is no whole trial.
While it is correct that a discretion properly exercised will not be interfered with by the appellate Court, the appellate Court has a duty to interfere when as in the instant matter, the Court exercised a discretion unjudiciously and unjudicially, thereby giving rise to injustice. On the particular facts of this matter, where the reason for the absence of the counsel was given and with the desire to defend the suit, the lower Court ought to have granted the application on terms by making the appellant to pay costs in order to meet the ends of justice to both sides. The failure to grant the application for the appellant to open his defence is a failure of justice. The exercise of discretion by the lower Court was wrongly exercised and contrary to justice. See Anyah Vs. African Newspaper of Nigeria Ltd. (1992)6 NWLR (Pt. 247) 319 and Ajomale Vs. Yaduat (No. 2) (1991)5 NWLR (Pt. 191) 266.
The end result is that the appeal has merit and it succeeds.
The ruling of the lower Court delivered on the 16th of March, 2009 is hereby set aside. Parties to bear their costs.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Tani Yusuf Hassan, JCA. His Lordship has ably considered and resolved the issues in contention in this appeal. I agree with the reasoning and abide the conclusion reached therein. I do not see the need to make any additions.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have had the benefit before today to read a draft copy of the leading judgment delivered by my learned brother, TANI YUSUF HASSAN, JCA
I am in full agreement with his lordship’s reasoning and conclusion that the Appeal is meritorious.
Let me add for purposes of emphasis that it is settled that if judicial discretion has been exercised bona fide uninfluenced by irrelevant consideration and not arbitrary or illegally by the lower Court, the general rule is that an Appeal Court will not ordinarily interfere.
But an appellate Court has a right and a duty to require whether or not the discretion of a lower Court was rightly exercised and whether or not it was exercised judicially i.e. in accordance with the laws, the rules and existing binding decisions interpreting the laws or the rules. Where a trial
Court proceeds on a wrong principle in a matter within its discretion as in the instant Appeal, its orders may be set aside by an appellate Court. A proper exercise of discretion should be done according to law and not arbitrary.
See ANPP V. R.E.C. AKWA IBOM STATE (2008) 8 NWLR (PT.1090) 453 at 513 AND IDEOZU V. OCHOMA (2006) 4 NWLR (PT. 970) 364. The trial Court failed to carry out its judicial function judiciously.
From the foregoing and the well articulated lead judgment by my learned brother, I also find merit in this Appeal and I allow it.
I abide by the consequential orders made.
Appearances:
Simon Mom For Appellant(s)
For Respondent(s)
