UMAR & ANOR v. MAKONG & ANOR
(2020)LCN/15723(CA)
In the Court of Appeal
(YOLA JUDICIAL DIVISION)
On Wednesday, December 16, 2020
CA/YL/103/19
Before Our Lordships:
Chidi NwaomaUwa Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Abdullahi Mahmud Bayero Justice of the Court of Appeal
Between
1. DANJUMA UMAR 2. IBRAHIM UMAR APPELANT(S)
And
1. YUKO MAKONG 2. JAURO YUBON MAKONG RESPONDENT(S)
RATIO:
EVIDENCE ADDUCED BY PARTIES IN A CASE OUGHT TO BE EXAMINED ON THE SAME PRINCIPLES OF LAW.
The trial Court was inconsistent on its stand on the statement of the witnesses DW1, PW1 and PW2 said to have been made in their counsel’s office. Evidence adduced by parties in a case ought to be examined on the same principles of law. If the trial Court disregarded the evidence of the DW1, it ought to have done the same with the evidence of the PW1 and PW2 whether right or wrong. The failure to have done so is a breach of fair hearing on the part of the DW1, therefore such decision that is one sided cannot stand; it is a fundamental issue which renders the proceeding a nullity. I hold that the act of disregarding the statement on oath of the DW1 by the trial Court was in error. CHIDI NWAOMA UWA, J.C.A.
THE COURT OUGHT NOT TO HAVE CONSIDERED THE CONTENTS OF THE EVIDENCE
Having declared the evidence of the DW1 on oath invalid, the trial Court ought not to have considered the contents of the evidence and ought not to have utilized the contents of the cross examination of the same witness. Invalid statement as declared by the trial Court, should be invalid for all purposes and ought not to have been evaluated and relied upon in arriving at its decision. I hold that the evidence of the DW1 ought not to have been declared invalid. I resolve issue four in favour of the appellants. CHIDI NWAOMA UWA, J.C.A.
DENIAL OF FAIR HEARING IS FATAL TO THE ENTIRE PROCEEDINGS
It is the law that denial of a party’s right to address the Court is fatal to theentire proceedings. All the reviewed adjournments by the trial Court were not in respect of addressing the Court. The trial Court ought to have granted the appellants an adjournment for address, moreso, when the 1st Appellant gave the reason that he needed to engage the services of a counsel and the Respondents had addressed the Court. The appellants ought to have been given an opportunity to at least file a reply. It is not on record that there had been a previous adjournment for address; the trial Court ought to have granted the only application for adjournment on the issue of address. It is noteworthy that the address of counsel is an important aspect of the case and a refusal of same is a denial of fair hearing; moreso, every Nigerian citizen has a right of fair hearing under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and as such have a right to be represented by a counsel, as well as address the Court at the close of evidence. CHIDI NWAOMA UWA, J.C.A.
THE PRINCIPLE OF FAIR HEARING IS THE RIGHT OF A PARTY TO ENGAGE A COUNSEL OF HIS CHOICE
See YIROM VS. RIKAINYANGBE & ANOR (2018) LPELR – 44480 (CA), B + B GAS & OIL SERVICES (NIG) LTD. VS. AGE (2007) (supra) and USANI VS. DUKE (2005) (supra) and veryappropriate in the present case is: MOMAH VS. MOMAH (2017) LPELR – 42817 (CA) PP. 26 – 27, PARA. F, his Lordship Otisi, JCA as to a party’s entitlement to a counsel of his choice held thus:
“Implied in the principle of fair hearing is the right of a party to engage a counsel of his choice. If his counsel withdraws from the matter, the party ought to be given the opportunity to engage the services of another counsel. Similar circumstances were considered by the Supreme Court, per Oguntade, JSC, in NDUKAUBA VS. KOLOMO (supra) as follows: In the instant case, the counsel retained by the appellant decided to withdraw further appearance for the appellant in the middle of the case and this was done without any notice or information to the appellant. The result was that the evidence given by DW2 in support of the respondents’ case went unchallenged since DW2 was not cross examined. Further, whereas the counsel for 1st Respondent filed a final address, which presumably the trial Court would have read, the opportunity was not available to the appellant. It seems to me in the circumstances that the appellant was not enabled to fully ventilate his case. With respect to the trial judge, I think he was mistaken not to have directed that a fresh hearing notice be served on the appellant when his counsel withdrew from the case.” CHIDI NWAOMA UWA, J.C.A.
A PARTY CAN CHANGE COUNSEL AT THE DEFENSE OR ADDRESS STAGE
On the other hand, there is no law that says that a party cannot change counsel at the defence or address stage. The trial Court utilized the address of the respondents; the appellants were not given an opportunity to decide whether to file a reply or not to fully ventilate their case through their counsel. See also ISIAKA & ORS VS. OGUNDIMU & ORS (2006) LPELR – 1552 (SC) P. 14, PARAS.F – G and CHUKWUKADIBIA VS. EZE & ORS. (2015) LPELR – 25748 (CA) PP. 41 – 42, PARAS. A – E. I hold that the trial Court was wrong to have proceeded with the case without giving the appellants the opportunity to engage a counsel who would have conducted their case to conclusion. The Appellants were denied fair hearing as they were not on equal footing with the Respondents till the conclusion of their case. I resolve issue five in favour of the appellants. CHIDI NWAOMA UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The Taraba State High Court sitting in Jalingo (hereafter referred to as the trial Court) delivered judgment against the Appellants who were defendants at the trial Court on 18/1/2018 in favour of the Respondents as plaintiffs.
The reliefs sought were as follows:
(a) “AN ORDER of Court declaring title to the land in dispute in favour of the plaintiffs.
(b) AN ORDER of declaration that the defendants are trespassers on the plaintiffs’ land by their act of entry and cutting down trees.
(c) AN ORDER of perpetual injunction restraining the defendants by themselves, their privies, assigns, heirs, successors or any person laying claim to the plaintiffs land through them from further acts of trespass.
(d) The sum of N3,000,000.00 general damages against the defendants for trespass.
(e) Costs of filing and prosecution.”
At the trial, the Respondents called a total of three witnesses while the Appellants called a sole witness after which the trial Court was said to have compulsorily closed the defence’ case by an order of the Court made on 3/8/2017. At the conclusion of evidence, the Respondents filed their written address. When the matter came up for adoption of written addresses on the 7/10/17, the 1st Appellant (as 1st defendant) applied for an adjournment to enable him engage the services of a lawyer. The trial Court did not grant the application but, proceeded and allowed the respondents to adopt their written address on that very day and adjourned the matter for judgment. The trial Court delivered its judgment without availing the Appellants an opportunity to address the Court as done by the Respondents.
The Appellants who were unhappy with the decision appealed to this Court. The following five (5) issues were formulated for the determination of the appeal thus:
1. “Whether by the circumstances and the evidence on record in this case the Respondents have proved their case as required by law so as to be entitled to judgment in their favour? (Distilled from grounds 5 and 6 of the grounds of appeal on the amended notice of appeal).
2. Whether the trial Court was right when after finding and holding that the identity of the disputed land in this case was in issue based on the description given by the parties, still proceeded to declare title to the Respondents even without a visit to the locus in quo to ascertain the exact identity of the said land? (Distilled from ground 2 of the grounds of appeal on the amended notice of appeal).
3. Whether the decision of the trial Court was not perverse when the Court held to the effect that the testimony of DW1 before the Court was not on facts within his personal knowledge but on facts as he was told (hearsay) and therefore woefully failed to rebut the case of the plaintiffs? (Distilled from grounds 3 and 4 of the grounds of appeal in the amended notice of appeal).
4. Whether by the facts of this case, the trial Court was right when the Court expunged or disregarded statement on oath of the DW1 but proceeded to rely on the DW1’s evidence under cross-examination and as well use the respective statements on oath of the PW1 and PW2 which suffered similar fate with that of DW1? (Distilled from grounds 1 and 8 of the grounds of appeal in the amended notice of appeal).
5. Whether by the facts and circumstances of this case there was no denial of the appellants’ right to fair hearing when the trial Court foreclosed the appellants’ right to address the Court after close of evidence?” (Distilled from ground 7 of the grounds of appeal on the amended notice of appeal).
The Respondents on their part adopted the issues as formulated by the Appellants.
In arguing the appeal, the learned counsel to the Appellants B. Vaatsav Esq., adopted and relied on his brief of argument filed on 27/3/2020 and his reply brief filed on 5/10/2020, deemed properly filed and served on 6/10/2020 as his argument in this appeal. In arguing his first issue, it was submitted that it is trite that the burden of proof in all cases is on he who asserts, in this case the Respondents. See Sections 131 (1) and (2), 132 and 133 of the Evidence Act, 2011. The learned counsel highlighted the five ways of establishing root of title to land. These are:
a. Proof by traditional evidence.
b. Proof of various acts of ownership and possession numerous and positive to warrant inference of ownership.
c. Proof by production of documents of title which must be authenticated.
d. Proof of ownership by acts oflong possession and enjoyment in respect of the land to which the acts are done.
e. Proof of possession of connected adjacent land in circumstances rendering it probable that the owner of such connected or adjacent land would in addition be the owner of the land in dispute.
See BELLO VS. SANDA (2012) 1 NWLR (PT. 1281) P. 219 at 223 and YUSUF VS. ADEGOKE (2007) 4 S.C. (PT. 1) P. 126 at 137. The Respondents as plaintiffs at the trial Court claimed through traditional history which was expected to have been proved through credible and cogent evidence. See AJIBOYE VS. ISHOLA (2006) 11 MJSC P. 191 at 196. It was argued that it was not established by the Respondents whether it was the Respondents’ grandfather (TashoTakpa) as pleaded by the Respondents or Tasho Tuba (Tugba) as stated under cross examination of the PW3 that founded the land and PW2 under cross examination stated that Kasho Tugba (Tasho Tuba) is the father of the Respondents and not the grandfather, thus breaking their root of title to the land in dispute. Further, that there is nothing to show that Tasho Tuba (Tugba) is the same and one person as TashoTakpa. See STATE VS. CINTALI (2002) 3 LRCNCC (REPRINT 2008) 167 at 177. It was argued that the Respondents’ root of title was founded on contradictory evidence and the Court cannot pick and choose which one to believe. See ESSIEN VS. JOSEPH HENDAN & 1 OR (2005) NWLR P. 598 at 615. It was argued that the law is that if a party includes the land of another person or family into the portion he claims as in the instant case, his claim must be dismissed. See ADENIYI VS. ORAJI (2006) ALL FWLR (PT. 324) P. 1839 at 186. It was submitted that in paragraphs 8 and 13 of the Respondents’ statement of claim, it was averred that the family of one Daban Gwanu also own and are living on a portion of land which is on the land the Respondents claimed. It was argued that the trial Court ought not to have declared title in favour of the Respondents in respect of land which encompasses portions of land belonging to another. See DADA VS. BANKOLE (2008) 5 NWLR (PT. 1079) P. 26 at 53. F – H, 60 – 61, H – B.
In arguing the second issue, it was submitted that the legal responsibility to prove the identity of the land in dispute in a claim for declaration of title is on the plaintiff, the respondents in this case. See ODUBOTE VS. OKAFOR (2012) 11 NWLR (PT. 1312) P. 419 at 433 – 434 G – A. It was argued that the appellants made the identity of the land an issue by their pleadings and also under cross examination of the respondents’ witnesses. It was argued that the respondents’ witnesses contradicted paragraphs 4 and 5 of the respondents’ statement of claim and supported paragraphs 2 (b) and 2 (d) of the appellants’ amended joint statement of defence at pages 90 and 91 of the records in respect of the identity, location and boundaries of the land in dispute. The evidence of the PW1, PW2 and PW3 was reviewed to highlight the contradictions. It was submitted that it is the law that the evidence of parties must be in line with their pleadings and a party must be consistent with the case he makes before the Court. It was submitted that evidence adduced by the PW1 – PW3 under cross examination supports the appellants’ case as defendants who are at liberty to use same against the respondents who were the plaintiffs. See WUYAH VS. JAMAA LOCAL GOVERNMENT, KAFANCHAN (2013) ALLFWLR (PT. 659) P. 1171 at 1193 – 1194. It was argued that the evidence against interest on the part of the PW1 – PW3 should have led to the dismissal of the claim. See UDO VS. EFFIOM (2008) ALL FWLR (PT. 414) P. 1559 at 1581.
It was concluded on this issue that had the trial Court visited the locus, the trial Court’s decision would have been different. It was also argued that the land claimed by the respondents is different from that which the title was declared in favour of the respondents.
In arguing their issue three, it was submitted that there was no justification for the trial Court to have insisted that the DW1’s testimony on traditional history ought to have been on what he saw, heard or felt. It was argued that the burden of proof in a civil case is on the plaintiff, the respondents in this case and they are to succeed on the strength of their case and not on the weakness of the defence.
Under issue four, it was submitted that the statement on oath of the DW1 at pages 36 – 37 was properly sworn to at the Taraba State High Court of Justice Registry Jalingo before the Commissioner for Oaths on the 3/8/12, ascould be seen on the face of it at page 36 of the record, therefore that the question put to the DW1 which led to the response given by the DW1 that he signed his statement on oath at his lawyer’s office was irrelevant. Without conceding that the statement of the DW1 on oath was defective, it was submitted that the DW1 appeared in Court on 22/10/2013 and adopted his statement on oath at the witness box and was cross examined by the respondents’ counsel based on the same faulted statement, pages 78 – 79 of the records. See KALU IGU UDUMA VS. PRINCE AMA ARUNSI & 14 ORS (2012) 7 NWLR (PT. 1298) PAGE 55 at 97. It was argued that the statement on oath bears the signature of the Commissioner for Oaths and not that of counsel. It was submitted that all the evidence of the witnesses ought to have been considered otherwise it is a denial of fair hearing. It was argued that the trial Court’s failure to consider the DW1’s statement on oath is a denial of fair hearing, reference was made to Section 36(1) of the 1999 Constitution (as amended) without conceding that there was an anomaly with the statement on oath of the DW1, it was submitted that the statements on oath of the PW1 and PW2 were made in their counsel’s office, while the PW1’s statement was not thumb printed, that of the PW2 was made in counsel’s office. See page 9 of the printed records of appeal. Further, that the trial Court after expunging or disregarding the statement on oath of the DW1 relied on the evidence under cross examination of the DW1 in arriving at its decision. We were urged to hold that expunging the statement on oath of the DW1 was in the alternative, we were urged to expunge the statements on oath and all the evidence adduced by the PW1 and PW2.
On the fifth issue, it was submitted that the appellants’ case was compulsorily closed by the trial Court suomotu on 3/8/17, which amounted to a denial of fair hearing. It was submitted that the appellants ought to have first filed their written address before the respondents, pursuant to Order 37, Rule 16(2) of the Taraba State High Court (Civil Procedure) Rules, 2011, page 130 of the records, lines 20 – 21. Further, that on 7/10/17, the 1st Appellant was in Court and applied that the matter be adjourned to enable him engage the services of counsel, the trial Court refused; page 40, line 17 of the printed records of appeal and proceeded with the respondents adopting their written address and the case adjourned for judgment which was later delivered. It was submitted that the appellants were denied fair hearing; reference was made to Order 37 Rule 16(1) of the Taraba State High Court (Civil Procedure) Rules, 2011. It was submitted that the denial is fatal to the case of the appellants. See B – B GAS & OIL SERVICES (NIG.) LTD. VS. AGE (2007) ALL FWLR (PT. 380) P. 1595 at 1604, H – E and USANI VS. DUKE (2005) ALL FWLR (PT. 244) P. 960 at 988, G – H.
In response, the learned counsel to the Respondents G.T. Ieave Esq., adopted and relied on his brief of argument filed on 20/8/2020 deemed properly filed and served on 6/10/2020. The learned counsel adopted the five issues formulated by the Appellants in urging us to resolve all five issues in favour of the Respondents, dismiss the appeal for lacking in merit, affirm the judgment of the lower Court and all the consequential orders made therein. In arguing issue one, it was submitted that the two grounds from which issue one was distilled from have no nexus with the argument on the issue formulated. See HALILCO NIG. LTD. VS. EQUITY BANK OF NIGERIA LTD. (2013) LPELR – 20743 (SC) PAGE 10, PARAS. C – E. We were urged to hold that this issue not having been distilled from a valid or competent ground of appeal, same is incompetent and should be discountenanced with the argument in its support. In the alternative, it was submitted that in a suit for declaration of title to land, it is necessary that the identity of the land in dispute be proved with certainty as well as the root of title for the claimant to succeed. See ODUNZE VS. NWOSU (2007) 13 NWLR (PT. 1050) 1 at 52, PARAS. F – G and NRUAMAH VS. EBUZOEME (2013) VOL. 221 (PT. 1) LRCN 221 at 242 – 243, PARAS. JJ – A. It was argued that the Respondents as claimants at the lower Court successfully pleaded and proved their root of title as well as the boundaries and identity of the land they claimed, reference was made to paragraphs 4, 5 and 6 of the Respondents’ statement of claim and the statement on oath of the PW1, PW2 and PW3. It was argued that the Appellants not having raised the issue relating to the facts pleaded by the Respondents in paragraphs 8 and 13 of their joint statement of claim as a ground of appeal, it cannot be raised and argued under this issue as has been done by the Appellants. See FBN PLC. VS. T.S.A. INDUSTRIES LTD. (2010) LPELR – 1283 (SC) PAGE 42, PARAS. C – E and REV. KING VS. STATE (2016) LPELR – 40046 (SC) PAGE 38, PARAS. D – F.
Under issue two, it was submitted that the trial Court properly evaluated the evidence before it which has not been faulted by the appellants. It was submitted that the Respondents in their pleadings properly identified and described the land in dispute with its boundaries. It was argued that the Appellants who raised the issue of identity of the land failed to call evidence to prove the identity as made out by them. See CBN & ORS. VS. OKOJIE (2015) LPELR – 24740 (SC) PAGE 50; PARAS. C – E and IDESO & ANOR VS. ORDIA & ORS. (1997) LPELR – 1421 (SC) PAGES 13 – 14, PARAS. F – B. Further, that the evidence of the DW1, the sole witness to the Appellants was discredited for being in contravention of Section 119(3) of the Evidence Act, 2011 and the cases of CHIDUBEM VS. EKENNA (2009) ALL FWLR (PT. 455) 1692 and LAWAL-OSULA VS. UBA PLC (2015) 5 NWLR (PT. 813) 376. See pages 154 – 156 of the printed records. It was the contention of the learned counsel that there was no contradiction in the respondents’ case, otherwise, it ought to have been raised in the grounds of appeal. See, OLUMOLU VS. ISLAMIC TRUST OF NIGERIA (1996) LPELR – 2626 (SC) P. 13, PARAS. A – C. It was submitted that this second issue has nothing to do with contradiction and ought not to have been argued here. See ASEIMO & ORS. VS. ABRAHAM & ORS. (2001) LPELR – 919 (SC) PAGE 8, PARAS. A – E.
On the Court not visiting the locus in quo, it was submitted that it was not necessary for the determination of the issues before the Court. See GARBA VS. MUHAMMAD & ORS. (2015) LPELR – 40870 (CA) PAGE 19, PARAS. A – D. It was argued that none of the parties applied for a visit to locus in quo as there was no need for it. It was concluded on this issue that evaluation of evidence and ascription of probative value to same is the duty of the trial Court that saw, heard and watched the demeanor of the witnesses. See OLONADE & ANOR. VS. SOWEMIMO (2014) LPELR – 22914 (SC) PAGE 26 – 27, PARAS. E – A.
In arguing issue three, it was submitted that the decision of the trial Court was based on the evidence of the DW1, therefore not perverse. On a decision that is perverse, reliance was placed on the case of MOMOH & ORS. VS. UMORU & ORS. (2011) LPELR – 8130 (SC) PAGE 39, PARAS. A – B.
On the fourth issue, it was submitted that only issues placed before the Court that call for determination. See VICTINO FIXED ODDS LTD. VS. OJO and ORS. (2010) LPELR – 3462 (SC) PAGE 19 – 20, PARAS. F – C. It was submitted that the PW1 did not testify that he thumb printed his statement on oath in counsel’s office, pages 63 – 64 of the printed records of Appeal. Further, that alleging that the PW2 thumb printed his statement in his counsel’s office is a fresh issue being raised on appeal which requires the leave of Court. See UKPO VS. MUSA ADEDE (2001) 9 NWLR (PT. 717) 203 at 219, PARAS. E – F and AYANGADE VS. O.A.U. TEACHING HOSPITAL MANAGEMENT BOARD(2001) 7 NWLR (PT.711) 187 at 203, PARAS. D – E.
On their fifth issue, it was submitted that T.D. Kasari Esq., who appeared for the Appellants on 5/7/17 at page 129 of the records, applied to withdraw his appearance after which the case was adjourned to 3/8/17, on which date the appellants did not attend Court and the trial Court closed their case which was justified, reference was made to the Taraba State High Court (Civil Procedure Rules) 2011, Order 37 Rule 13. The learned counsel highlighted the activities at the trial Court from 28th June, 2013 till 3rd August, 2017. It was submitted that there had been several adjournments at the instance of the Appellants until the appellants’ case was ordered closed on 3/8/17 at the discretion of the trial Court which the appellate Court should be reluctant to interfere with. See WAZIRI VS. GUMEL & ANOR. (2012) LPELR – 7816 (SC) PAGES 29 – 30, PARAS. F – A.
The case of B. B. Gas and Oil (supra) was distinguished from the present case.
In reply, the learned counsel to the Appellants submitted that there was no preliminary objection raised in respect of issue one, we were urged to discountenance the submissions in support of the respondents’ issue one. Further, we were urged to utilize Section 15 of the Court of Appeal Act, 2004 and Order 4 Rule 4 of the Court of Appeal Rules, 2016 to determine the appeal as if we were a Court of first instance. The Appellants re-argued the appeal in their reply brief.
Out of the five issues formulated by each of the parties which are similar but differently worded, issues 1 – 3 are on evaluation of the entire evidence adduced before the trial Court. Issue 4 challenges the lower Court’s order expunging the statement on oath of the appellants’ witness DW2 on the basis that it was invalid having allegedly been deposed to at the learned counsel’s office as opposed to being deposed to in the Court Registry, before a Commissioner for Oaths as made out by the respondents as plaintiffs, on the ground that it failed to comply with Section 119(3) of the Evidence Act, 2011. The evidence was disregarded by the trial Court. The statement on oath of the DW1 is at pages 36 – 37 of the printed records of Appeal. Page 37, shows that the witness is an illiterate whothumb printed as the deponent below the signature and name of the Interpreter (Umar D. Umar) below the illiterate jurat. It was dated 3rd day of August, 2012, Sworn at the High Court Registry, Jalingo, Taraba State before the Commissioner for Oaths who also appended his signature. All these can be clearly seen at page 37 of the printed records of appeal. Therefore, it cannot be rightly said that the statement on oath of the DW1 was made in his counsel’s office. It is noteworthy that the DW1 is an illiterate; would he be in position to know the difference in function between his counsel’s office and the Registry of the High Court? It is therefore erroneous for the lower Court to have found that the DW1 made his statement on oath in counsel’s office merely because the said illiterate witness said so under cross examination. There is nothing on the face of the statement on oath of the DW1 which shows that it was made in the office of his counsel. The signature of the appellants’ learned counsel did not appear anywhere on the statement on oath of the DW1 at pages 36 – 37 of the printed records of appeal.The learned trial Court having disregarded the evidence of the DW1 in his statement on oath means that it would not and was not relied upon by the trial Court in arriving at its decision. On the other hand, assuming the statement on oath was made in counsel’s office, it would have been regularized when it was adopted as the evidence of the DW1 in open Court under oath. The supposed defect of the oath would have been cured by the second oath in respect of the witness’ statement. See UDUMA VS. ARUNSI (supra), AGAGU VS. MIMIKO (2009) 7 NWLR (PT. 1140) P. 342 ONWUFUJU VS. OROHWEDOR (2020) LPELR – 50767 (CA), UDEAGHA & ANOR VS. OMEGARA & ORS (2010) LPELR – 3856 (CA) and MAJEKODUNMI & ORS VS. OGUNSEYE (2017) LPELR – 42547 (CA). Further, the statement on oath of the PW1 (Jauro Dovo Petti) who testified at page 63 of the records of appeal was given to his counsel after thumb printing obviously not before the Commissioner for Oaths. Also, the PW2 (Yukon Makong) at page 64 of the records of appeal testified that he made his statement on oath in the presence of his counsel in his office where he thumb printed same, not at the High Court Registry, before the Commissioner for Oaths, yet the trial Court in its judgment did not disregard the evidence of the PW1 and PW2 but, utilized same, pages 150 – 151 of the records in arriving at its decision. The trial Court was inconsistent on its stand on the statement of the witnesses DW1, PW1 and PW2 said to have been made in their counsel’s office. Evidence adduced by parties in a case ought to be examined on the same principles of law. If the trial Court disregarded the evidence of the DW1, it ought to have done the same with the evidence of the PW1 and PW2 whether right or wrong. The failure to have done so is a breach of fair hearing on the part of the DW1, therefore such decision that is one sided cannot stand; it is a fundamental issue which renders the proceeding a nullity. I hold that the act of disregarding the statement on oath of the DW1 by the trial Court was in error.
Further, despite the fact that the trial Court at page 156 of the records of appeal in its judgment declared the deposition on oath of the DW1 invalid for failure to comply with Section 119 of the Evidence Act, the trial Court went ahead to consider the alternative argument of the learned counsel to the Respondents (as plaintiffs) in which the trial Court copiously referred to and utilized the evidence of the DW1 earlier declared invalid, as well as the contents of the cross examination of the DW1 at pages 156 – 158 of the printed records of appeal in the judgment of the trial Court. Having declared the evidence of the DW1 on oath invalid, the trial Court ought not to have considered the contents of the evidence and ought not to have utilized the contents of the cross examination of the same witness. Invalid statement as declared by the trial Court, should be invalid for all purposes and ought not to have been evaluated and relied upon in arriving at its decision. I hold that the evidence of the DW1 ought not to have been declared invalid. I resolve issue four in favour of the appellants.
Under issue five, the appellants alleged a denial of fair hearing by the trial Court that foreclosed the appellants’ right to address the Court after the close of evidence. From the printed records of appeal, at page 130 as at 8/3/2017, the respondents as plaintiffs had closed their case; a defence witness was in Court, learned counsel to the respondents (M.I. Tyonongo Esq.) was in Court as well as the appellants’ counsel (C. Onu Esq.) but, the appellants were not in Court. For this reason, the trial Court closed the case of the appellants and ordered the Respondents to proceed with their case as plaintiffs in absence of the Appellants. The learned counsel to the Respondents applied for a date to file his written address which was granted by the trial Court and the matter adjourned to 7/10/17. On 7/10/17, the learned counsel to the Respondents indicated that he had filed and served his written address on the Appellants and was ready to proceed with the adoption of his address. The 1st appellant who was in Court informed the Court that he needed to engage the services of another counsel, the previous counsel having withdrawn from the matter. The adjournment was not granted, the learned counsel to the Respondents was ordered to proceed with the adoption of his address as plaintiffs. At page 141 of the printed records, the trial Court made an order thus:
“The defendant having been served with the address and has failed to take any step before and after service cannot at this be (sic) given any adjournment to enable him secure a counsel. The written address of the plaintiffs having been adopted the case is adjourned to 18/1/2018 for judgment.”
The judgment was thereafter delivered on 18/1/17 against the appellants. The trial Court considered and relied only on the written address of the Respondents in arriving at its decision. The learned counsel was right to have argued that the appellants having called evidence in this case, as defendants, they should have been given time within which to first file their final written address before the respondents, pursuant to Order 37 Rule 16(2) of the Taraba State High Court (Civil Procedure) Rules, 2011 which provides as follows:
“(2) Where the other party calls evidence, he shall within 21 days after the close of evidence file a written address.”
In the present case, the trial Court suomotu closed the case of the appellants, the appellants’ counsel was in Court, the trial Court proceeded erroneously to order the respondents to file their written address without giving the appellants an opportunity to engage the services of counsel and to first file his written address as the defendants within the period allowed by the rules, the respondents would then respond by filing their address, page 130 of the printed records of appeal.
On 7/10/17, the trial Court ought to have given the appellants an opportunity to engage the services of a counsel. The 1st appellant specifically prayed thus:
“I want to engage the services of a lawyer.”
The above prayer was necessitated by the fact that the appellants had been served with the written address of the Respondents. The application for adjournment which was not opposed by the respondents was refused by the trial Court; the Appellants could therefore not engage a counsel. The Appellants were denied their right to address the Court after the close of evidence. As rightly argued by the learned counsel to the Appellants, the application for adjournment of 7/10/17 was the only adjournment sought by the 1st Appellant in respect of address. All other adjournments reviewed by the trial Court were at different stages of the proceedings on different grounds. It is the law that denial of a party’s right to address the Court is fatal to theentire proceedings. All the reviewed adjournments by the trial Court were not in respect of addressing the Court. The trial Court ought to have granted the appellants an adjournment for address, moreso, when the 1st Appellant gave the reason that he needed to engage the services of a counsel and the Respondents had addressed the Court. The appellants ought to have been given an opportunity to at least file a reply. It is not on record that there had been a previous adjournment for address; the trial Court ought to have granted the only application for adjournment on the issue of address. It is noteworthy that the address of counsel is an important aspect of the case and a refusal of same is a denial of fair hearing; moreso, every Nigerian citizen has a right of fair hearing under Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and as such have a right to be represented by a counsel, as well as address the Court at the close of evidence. See YIROM VS. RIKAINYANGBE & ANOR (2018) LPELR – 44480 (CA), B + B GAS & OIL SERVICES (NIG) LTD. VS. AGE (2007) (supra) and USANI VS. DUKE (2005) (supra) and very appropriate in the present case is: MOMAH VS. MOMAH (2017) LPELR – 42817 (CA) PP. 26 – 27, PARA. F, his Lordship Otisi, JCA as to a party’s entitlement to a counsel of his choice held thus:
“Implied in the principle of fair hearing is the right of a party to engage a counsel of his choice. If his counsel withdraws from the matter, the party ought to be given the opportunity to engage the services of another counsel. Similar circumstances were considered by the Supreme Court, per Oguntade, JSC, in NDUKAUBA VS. KOLOMO (supra) as follows: In the instant case, the counsel retained by the appellant decided to withdraw further appearance for the appellant in the middle of the case and this was done without any notice or information to the appellant. The result was that the evidence given by DW2 in support of the respondents’ case went unchallenged since DW2 was not cross examined. Further, whereas the counsel for 1st Respondent filed a final address, which presumably the trial Court would have read, the opportunity was not available to the appellant. It seems to me in the circumstances that the appellant was not enabled to fully ventilate his case. With respect to the trial judge, I think he was mistaken not to have directed that a fresh hearing notice be served on the appellant when his counsel withdrew from the case.”
In the present case, the trial Court in its proceedings noted that the appellants’ counsel had withdrawn for the matter and the 1st appellant had asked for adjournment to enable him engage the services of a counsel when the trial Court closed the case for the defence and ordered the respondents to file their written address out of turn, which was filed and served on the appellants without giving them an opportunity of engaging another counsel to take over their matter, counsel would decide whether to reply to the written address of the respondents or not. On the other hand, there is no law that says that a party cannot change counsel at the defence or address stage. The trial Court utilized the address of the respondents; the appellants were not given an opportunity to decide whether to file a reply or not to fully ventilate their case through their counsel. See also ISIAKA & ORS VS. OGUNDIMU & ORS (2006) LPELR – 1552 (SC) P. 14, PARAS.F – G and CHUKWUKADIBIA VS. EZE & ORS. (2015) LPELR – 25748 (CA) PP. 41 – 42, PARAS. A – E. I hold that the trial Court was wrong to have proceeded with the case without giving the appellants the opportunity to engage a counsel who would have conducted their case to conclusion. The Appellants were denied fair hearing as they were not on equal footing with the Respondents till the conclusion of their case. I resolve issue five in favour of the appellants.
Having resolved issues four and five in favour of the appellants, there would be no need to look into issues 1 – 3 on the evaluation of evidence as it would not serve any purpose.
In sum, the appeal succeeds and it is hereby allowed. The decision of the trial Court is hereby set aside. I order that Suit No: TRSJ/43/2012 be remitted back to the Chief Judge of Taraba State for trial de Novo with an order for accelerated hearing.
Parties are to bear their respective costs.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance the draft judgment just delivered by my learned brother Chidi NwaomaUwa JCA and I agree that the matter shouldbe remitted back to the Chief Judge of Taraba State for re-assignment to another Judge and I so order.
I abide by all the orders in the lead judgment including the order as to costs.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
Appearances:
B. VAATSAV, ESQ.For Appellant(s)
G.T. IEAVE, ESQ.For Respondent(s)
