UNION BANK NIGERIA PLC. V. INNOCENT N. NWANAJUO (2012)

UNION BANK NIGERIA PLC. V. INNOCENT N. NWANAJUO

(2012)LCN/5290(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 3rd day of April, 2012

CA/C/183/08

RATIO

FAIR HEARING: PRINCIPLE OF FAIR HEARING

The principle of fair hearing, the right to which was guaranteed to every citizen of Nigeria by the provisions of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (then and as altered) implies that in judicial proceedings, both sides to a case must be given equal opportunity to present their respective cases freely. It also means that each side is fully entitled to know, what case is being made him and to be given the opportunity to respond to it. The principle simply requires that in the determination of his rights or/and obligation in a court of law, a party is to be provided and given the opportunity to be heard by the court before a decision is reached on such right or/and obligation. It therefore imposes some obligation on the court hearing or determining the parties’ case, for instance, not to take or hear evidence in a case or receive any submissions or representations from one party behind the other party’s back. A court should also not shut out or refuse to hear a party in response to evidence, submissions or representation made by the other party in the case.

Because the right is provided for in the Constitution; the ground norm of the land, it applies to all judicial proceedings and therefore bind all courts of law in the country, without exception. Where the principle of fair hearing was in the country, without exception. Where the principle of fair, hearing was shown to have been breached and the right of a party thereto denied in a case, the consequence is fatal to the whole proceedings and any product thereof for they are null and void and of no legal effect. No matter how otherwise well conducted they were, no matter the amount of time, expenses spent, interlect and industry, put into such proceedings and no matter how right the decision would otherwise have been, judicial proceedings in which the right to fair hearing was denied or breached, would be rendered a nullity by such denial or breach, ab inito and so a complete exercise in futility.

The position of the law on the point was enunciated by Wali, JSC in the case of SAKU V. EGEIBON (1994) 6 NWLR (348) 23 at 44 as follows:

“It has also to be remembered that the denial of fair hearing was a breach of the rule of natural justice, that is, the requirement that a party must be given a fair hearing. The consequence by a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void. See ADIGUN v. ATTORNEY GENERAL OYO STATE (1987) 1 NWLR (Pg. 53) 678. If a principle of natural justice is violated, it dues not matter whether if the proper thing had been done, the decision would have been the same, the proceedings will still be null and void. The decision must be declared to be no decision.”

See also OLATOBOSIN v. N.I.S.E.R.C. (1996) 6 SCNJ, 38; OKAFOR v. A-G, ANAMBRA STATE (1991) 6 NWLR (200) 659; OYEYEMI v COMM. L.G., KWARA STATE (1992) 2 NWLR (226) 661; OLUMESAN v. OGUNDEPO (1996) 2 NWLR (433) 628; OTAPO v. SUNMONU (87) 2 NWLR (58) 587; TUNBI v. OPAWALE (2000) 1 SC, 1.

Whether or not there was denial or breach of the right to fair hearing in any case would largely depend on the facts of what actually happened in the conduct of the proceeding in the case for while the principle is constant and regular like the sun arising from the east, the facts and circumstances vary from one case to the other and very rarely if at all, the same in two different cases. So the test of the principle would be based on the given facts of a case presented before the court.

In addition, in the case of NDUKAUBA v. KALOMO (2005) 1 SC (Pt. 1) 80 at 96, it was held that the test of measuring the fairness of proceedings in the court of first instance is different from that in the appellate courts. In the court of first instance, it is impression of a reasonable person who was present at the trial but in the appellate courts, the test is whether having regard to the rules of court and the law, justice has been done and appears to have been done to the parties. Reference was made to the case of TUNBI v. PAWALE (supra). Enough of the restatement of the principles of law on the issue of fair hearing. PER MOHAMMED LAWAL GARBA, J.C.A

COUNSEL: DUTY OF A COUNSEL WHO ABSENTS HIMSELF ON A PARTICULAR DATE

PROCEDURE: FACTORS CONSIDERED BY COURTS IN GRANTING AN ADJOURNMENT

The granting of adjournment is at the discretion of the learned trial Judge regard being to the peculiar circumstances of each case. See Odusote v. Odusote (1971) 1 NMLR 229; Solanke v. Ajibola (1969) NMLR 253 and Ceekay Traders Ltd. V. General Motors Co. Ltd. (1992) 2 SCNJ (Pt.1) 151. In deciding to grant or refuse an application for adjournment whenever made, the Court takes into consideration the interests of the parties, the Court and other factors, example the previous conduct of the party/counsel applying for adjournment. See NPA V. Construzioni Generali Farsura Cogefar Spa & Ors (1974) 1 All NLR (Pt.2) 463 at 471-472. PER JOSEPH TINE TUR, J.C.A

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

Between

UNION BANK NIGERIA PLC. – Appellant(s)

AND

INNOCENT N. NWANAJUO – Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A (Delivering the Leading Judgment): The Respondent as Plaintiff had filed an action in suit No. H3/4/96 at the High Court of Cross River State, sitting at Ogoja, against the Appellant as Defendant in which he claimed the following reliefs:-

1. A declaration that all such debts, withdrawals and tampering with the plaintiff’s account be declared null and void and of no effect whatsoever.

2. An order directing or mandating the Defendant to credit all such money debited into the Plaintiff’s account with interest at the current rate.

3. An order directing the Defendant to return or deliver to the Plaintiff the original copies of the certificate of occupancy numbers OG/256./85 and EN/43/83 in respect of his properties situate at Okuku – Yala and Abakaliki respectively which has been held by the Defendant who surprisingly has refused, neglected or failed to return same despite repeated demands.

4. An order of perpetual injunction restraining the Defendant, himself, agents, privies, servants, assigns or whosoever acting for and on behalf of the defendant from further debiting, withdrawing or tampering with plaintiff’s account.

5. The Plaintiff prays this Honourable court for an order and/or declaration that the purported sale of Plaintiff’s property situate at Okuku – Tala L.G.A. by the Defendant to one Chief Patrick Odachi Omeka was ultra vires the defendant and the same is null, void and of no effect at all. The Plaintiff claims special and general damages occasioned on him by the acts of trespass caused by the defendants and perpetrated by Chief Patrick Odachi Omeka, Defendant’s agent.

At the end of trial, the High Court, on the 5/8/2008, entered judgment in favour of the Respondent virtually granting the above claims against the Appellant. Being dissatisfied with the above decision, the Appellant filed notice of appeal on the 23/10/2008 containing five grounds of appeal.

With leave of the court, the record of the appeal received in the court on the 10/3/2009, was, deemed, on the 17/3/2009, the Appellant’s brief filed on the 14/1/2010, was deemed on the 4/2/2010 and the Respondent’s brief filed on the 7/12/2011, was deemed on the 1/2/2012. At the oral hearing of the appeal on the 21/2/2012, the briefs of argument were adopted as the submissions in support of the respective positions of the parties, by their learned counsel. We were urged by them to uphold the submissions and as the case may be, allow or dismiss the appeal accordingly.

The learned Counsel who settled the Appellant’s brief had distilled the following issues tor determination in the appeal at page 3 of the Appellant’s brief:

1. Whether the Respondent in the circumstances proved his case to be entitled to judgment in this case.

2. Whether failure, of the learned trial judge to order for the issuance and service of hearing notice on the defendant’s counsel in this matter as regards the proceedings of 14/7/08 and 15/7/08 amounts to denial of fair hearing and operates to rob the court of its jurisdiction to entertain the matter on those dates.

3. Whether default or, negligence of Counsel can be visited on a party.

It is clear that the learned counsel did not indicate the grounds of the appeal from which he formulated the above issues to enable the court to easily identify their foundation.

On his part, the learned counsel, who prepared the Respondent’s brief, had used a novel way of raising or formulation of issues for determination in the appeal. Although he had indicated at page 3 of the brief that he did formulate issues for determination, he ended up in fact submitting a single issue as follows:

“1. Whether the Respondent did not merit judgment to be entered on his behalf by the court below.”

After making submissions on the above issue, learned Counsel then made reference to the Appellant’s issues 2 and 3 which he challenged and urged us to dismiss the “appeal for being mischievous.”

Specifically the learned counsel had said of the Appellant’s issue 3 at paragraph 4.01 on page 11 of the brief that:

“My Lords in reply to issue No. 3 of the Appellant’s brief as reflected in page 17, the Respondent submits that this Honourable Court with respect lacks the jurisdiction to entertain issue No. 3 as that issue bothered (sic) on mixed law and fact.”

This is a clear objection to the competence of the issue, 3 on the ground that it is of mixed law and fact. However, in the arguments that followed the objection, counsel cited judicial authorities on grounds of appeal, not issues, which are classified as of mixed law and facts and which require leave of Court. Even though issues are distilled from grounds of appeal, there is in practice, a difference between the grounds of an appeal and the issues that are formulated from them for the purposes of hearing and determination of the appeal. Simply put, a ground of an appeal is the complaint, attack or challenge to the ratio of the decision an Appellant was dissatisfied with and which he appealed against.

An issue is a crucial question, whether of facts, law or both which arises for decision from the grounds of an appeal. Whereas there are situations in which grounds classified as of mixed facts and law require the leave of court to be competent in an appeal, issues raised from grounds of appeal of whatever nature do not require leave of court to be raised whether they are of fact alone, or mixed facts and law.

The law is settled that a Respondent can validly raise a preliminary objection in the Respondent’s brief of argument. The usual manner of raising such an objection, because it is preliminary, is for it to be raised at the introductory stage of the brief before the formulation and arguments of issues by the Respondent. The reverse was done by the learned counsel for the Respondent in this appeal because the objection which was supposed to be preliminary was raised and argued at the end of the Respondent’s brief. That is strange to the known and accepted practice of brief writing.

But the above apart, the law require that where a preliminary objection was raised by the Respondent to an appeal either by way of notice as required by the Rule of court or in the Respondent’s brief, as recognized by the judicial practice of the courts, the objection had to be moved first at the hearing of the appeal before the appeal itself was argued. Where it was not so moved and the appeal was argued, the objection would be deemed abandoned by such a Respondent. See A.C.B. v. APUJO (1995) 6 NWLR (399) 65; NSIRIM v. NSIRIM (90) 5 SC (II) 94; ONOCHIE v. ODOGWU (2006) 2 SC (1) 153 at 155-6.

The Respondent’s learned counsel did not at the hearing of this appeal, advert to the objection he had raised in the Respondent’s brief in respect of both the Appellant’s, issue 3 and Ground of Appeal 3 and so the objection is deemed abandoned by him. The arguments in respect thereof contained in the Respondent’s brief would accordingly be discountenanced in the determination of the appeal.

I have read the five (5) grounds contained on the Appellant’s notice of appeal and find that the two issues which arise from them that are the fulcrum of the appeal are as follows:-

(1) Whether the Appellant was given a fair hearing by the High Court before judgment was entered against it.

(2) Whether the Respondent had proved his case as required by law to be entitled to judgment in the case.

The law is now established that this court can whenever it appears necessary in an appeal, reframe issues formulated by the parties to an appeal or even frame other issues and ignore those framed by the parties, in order to deal with and determine the real complaint or challenge in the appeal. See BANKOLE v. PELU (1991) 8NWLR (211) 523: OPARA v. D.S. (NIG) LTD. (1995) 4 NWLR (390) 440; UKO v. MBARA (2001) 4 NWLR (704) 460; SHA v. KWAM (2000) FWLR (11) 1798 at 1815; UDO v. C.R.S.N.C. (2001) 14 NWLR (732) 116: EDEM v. CANON BALLS LTD. (2005) ALL FWLR (276) 693 at 714: CHABAYASA v. ANWASI (2010) 10 NWLR (1201) 163 at 182.

In the above premises, I would determine the appeal on the basis of the above two (2) issues which counsel for the parties have addressed adequately in their respective briefs of argument.

ISSUE 1

This issue was argued as issue 2 in the Appellant’s brief. The meat of the submissions for the Appellant on the learned counsel for the Appellant was not issued hearing notice for the proceedings of the 14th and 15th of July 2008 during which the Defence witness 2 (DW2) was further cross-examined and the case adjourned for judgment, Record of the appeal in respect of the said dates was referred to by counsel who argued that non issuance of hearing notice offended the rule of fair hearing and has occasioned a miscarriage of justice. Several cases were cited on the requirement of and effect, of denial of the right to fair hearing in judicial proceedings, including NACB LTD. v. OBADIAH (2004) 4 NWLR.(863) 326 at 331; ONWUKA V. OWOLEWA (2001) 7 NWLR (713) 695, at 699; AGENA v. KATSEN (1998) 3 NWLR (543) 560 at 561; MANKAMU v. SALMAN (2005) 4 NWLR (915) 270 at 273 and ABDUL RAHEEM v. OLORUNTOBA-OJU (2006) 15 NWLR (1003) 560 at 589.

According to Counsel, DW2 was forced by the High Court to take over and conduct the case of the defence in the absence of counsel thereby contravening Section 3-6 (1) of the 1999 Constitution because that court did not consider that counsel was to address it at the close of the case for the defence. We were urged to hold that in the circumstances of the Appellant’s case, he was not given fair hearing by the High Court and to set aside the judgment appealed against.

For the Respondent the issue was also argued as issue No. 2 and after reference to pages 78 and 88 of the record of appeal as to what happened in the proceedings of 14/7/08, learned counsel for the Respondent said it was not correct that the letter for adjournment was written by the Appellant’s counsel to the High Court on that day. Further that since the Defendant was present in court on 14/7/2008, he was bound to communicate the date of adjournment to his counsel and that there was no denial of fair hearing against the Appellant. The case of ATTORNEY GENERAL, RIVERS STATE v. UDE (2006) 7 KLR (223) was cited on the principle of fair hearing and once again page 78 and then 79 of the record of the appeal were referred to as what happened at the proceedings of 14th and 15th July, 2008. It was maintained that Appellant was afforded the opportunity to be heard on the said dates, and the right to fair hearing was not denied, citing MAGIT v. UNIAGRIC MAKURDI (2005) 12 KLR (204 – 7) 2881 AND JASON, TRIANGLE LTD. V CM & PARTNERS LTD. (1999) 1 NWLR (588) 559.

Due to the fundamental and intrinsic nature of the right to fair hearing in judicial proceedings and the legal consequence of a breach or denial thereof to such proceedings, I would decide the issue first before proceeding to look at the issue 2.

The position of the law on the point was enunciated by Wali, JSC in the case of SAKU V. EGEIBON (1994) 6 NWLR (348) 23 at 44 as follows:

The pith of the Appellant’s complaint of denial of fair hearing in the High Court was in respect of the proceedings conducted on the 14th and 15/7/2008 as seen earlier.

As a foundation, I would refer to the proceedings of the 9th of July, 2008, the fast date from which the proceedings were adjourned to the 14/7/2008. The proceedings of the 9/7/2008 appear at pages 77 – 78 of the record of the appeal and they speak for themselves. They are thus:

“RESUMED AT OGOJA

BEFORE HIS LORDSHIP HON. JUSTICE M. EDEM – JUDGE

THIS WEDNESDAY 9th DAY OF JULY 2008

HJ/56/95

Union Bank of Nigeria Plc – Plaintiff

And

Innocent N. Nwanojuo – Defendant

Parties Present.

Barrister J. Ikpala for Plaintiff with him G. Ugan

Barrister U. Udofia for Defendant.

Cross Examination DW2

Court: Reminds him of being on oath.

I am Oyenike Innocent. I am 3 years old with the Defendant. I am Group 7 Officer. We have different ranks. I fell into management cadre. We are identified as Group 7 Officer 7 is the least in that hierarchy. I know DW1. He is a Group 5 officer. He is the marketing officer. I am a Front Teller Officer. There was no Court injunction restraining the Bank from selling the Plaintiff property.

Shown Exhibit 1 in particular Paragraph 1:- I am aware now that by Exhibit 1 the bank was restrained from selling Plaintiff’s property. I said there was no agreement to settle HJ/31/89 out of Court. I still do maintain I do not have an idea about that case. The share certificates of the Plaintiff in our custody, I am not aware. I am not aware of Exhibit 3 but I am aware of it now. We sold the Plaintiffs property to Chief Patrick Omeka. The High Court takes precedence over the Magistrate Court.

Ikpala: May I take a date to continue with the Cross Examination.

Udofia: No objection.

Court: By consent of both Counsels matter is adjourned to 14th July, 2008 for continuation.

My Order.

Sgd:

M. Edem

Judge

9th July, 2008.”

Clearly, both parties and their respective counsel were in court and consented to the adjournment of the proceedings, to the 14/7/2008 for continuation of cross examination of DW2. Because the parties and their counsel agreed to the adjournment, they are factually aware of that the proceedings would continue on the 14/7/2008. In the circumstances, the requirement or even need to serve any of them with a hearing notice of the continuation of the proceedings on the 14/07/08 did not arise at all because the essence of a hearing notice is to notify or inform a party of a hearing in the case in respect which it was issued.

Having been physically present in court when the proceedings were adjourned to the 14/7/8 by the court to their hearing, none of the parties or their counsel can be heard to claim or complain of non service of hearing notice in respect of the date to which the proceedings were adjourned openly in court. See JANASON TRIANGLES v. C.M. & P (2002) 15 NWLR (789) 176 at 192; ONADEKO v. UBN (2005) FWLR (250) 57.

On the 14/7/08, the proceedings conducted appear at page 78 of the record of the appeal. It is expedient to invite the record of the proceedings to speak again. They are:

RESUMED AT OGOJA

BEFORE HIS LORDSHIP HON. JUSTICE M. EDEM – JUDGE

THIS MONDAY 14TH DAY OF JULY 2008

HJ/56/95

Union Bank of Nigeria Plc …….. Plaintiff

And

Innocent N. Nwanojuo …… Defendant

Parties Present.

Barrister J. Ikpala for Plaintiff

Defendant: My Lawyer is unavoidably absent. He said he had sent a letter to the court.

Clerk: There is no letter from their lawyer.

DW2 Cross Examination

Court: Reminds him of being on oath. Every staff of the Defendant does not belong to the management cadre. I am not aware that the Plaintiff’s C of O in respect of his property in Abakaliki is in our possession. There is an officer in the Bank who could have been aware like the manager. I do not have an idea of the value of the mortgage covered by the Plaintiffs C of O. I did not submit to the Court any valuation report covered by Exhibit 6. Show Exhibit 2. By Exhibit 2, I am now aware of the withdrawal of the appeal in Enugu by the Defendant.

The Bank has several facilities open to customers. We granted Plaintiff a loan facility. That did not include overdraft facility. I know the facts which I am here to give evidence. All the facts in relation to thus case.

Share certificates of the Plaintiff in various companies are in our custody, 5 companies.

Ikpala: That is all.

Court: Do wish to call a witness.

DW2: I have a witness to call tomorrow.

Ikpala: No objection.

Court: By consent of both parties matter adjourned to tomorrow 15th of July, 2008 for the Defendant to call his witness as applied for.

No Order.

SGD:

M. Edem

Judge

14th July, 2008.

Plainly, parties were physically present in court and Barrister J. Ikpala, appeared for the Plaintiff. The Defendant then notified the court that his lawyer was unavoidably absent but had told him that he sent a letter to the court. The clerk of court said there was no letter from the lawyer and so cross examination of DW2 continued. At the end of the cross-examination, the court asked. DW2 if he wished to cart a witness and so the proceedings were adjourned to 15/7/2008 to enable Defendant to call the witness he said he had. The proceedings of the 15/7/2008 were very brief and are at page 79 of the record of appeal. They are as follows:

RESUMED AT OGOJA

BEFORE HIS LORDSHIP HON. JUSTICE M. EDEM – JUDGE

THIS TURSDAY 15TH DAY OF JULY, 2008

HJ/56/95

Union Bank of Nigeria Plc …….. Plaintiff

And

Innocent N. Nwanojuo …… Defendant

Parties Present.

Barrister J. Ikpala for Plaintiff

DW2: we have no more witness to call. So we close our …

Ikpala: May the court proceed to Judgment on the facts and evidence before the court.

DW2: Court may proceed to judgment.

Court: By consent of both Parties matter is adjourned to the 5th of August 2008 for judgment.

My Order.

SGD:

M. Edem

Judge

15ur July, 09.

It can easily be observed from the proceedings of the 14th and 15th July, 2008, that the Appellant was not represented by counsel and though the Appellant; UBN Plc was recorded to be present particularly on the 14/7/2008; nobody was indicated on the record to have represented it in the proceedings. All the same, the High Court still, without any note on the unavoidable absence of the counsel for the Appellant proceeded with the cross-examination of Appellant’s witness; DW2 after which it asked the said witness if he had a witness to call. DW2 was not recorded by the High Court to have represented the Appellant at any stage of the proceedings in the case but was called by the counsel for the Appellant as a witness in the proceedings. DW2 was recorded to have first appeared in the proceedings on the 23/6/2006 reflected at page 76 of the record of the appeal, a witness who worked with the Appellant just like DW1 who testified as a witness at pp 73-74 of the record of the appeal. Because counsel for the Appellant was not in court on 14/7/2008, DW2 was not re-examined before to call by the High Court. If the learned counsel was unavoidably absent from the proceedings conducted on the 14/7/08, it was not because he was not served hearing notice of the hearing on that day, since he was aware of the adjournment. However the High Court was wrong to have ignored the information that counsel was unavoidably absent particularly when there is nothing on the record of the appeal to show that he had absented himself from the proceedings before that day. It was also wrong to have simply rushed into the continuation of cross examination of the Appellant’s witness without making a note of why it had to do so. In this regard I am in agreement with the learned counsel for the Appellant when he argued in the Appellants brief that the High Court forced DW2 to continue the proceedings and to take the defence of the case against the Appellant when it called on him to call witnesses in the proceedings of the 14/7/2008 knowing that the Appellant had a counsel handling the defence for it. The High Court was rash in the way and manner it proceeded on the 14/7/2008 and later on the 15/7/2008 when it made DW2 to take the place of counsel, a position which it knew, he was not competent to assume and so ill fitted him.

The procedure and approach used or adopted by the High Court did not provide the opportunity envisaged by the principle of fair hearing, for the Appellant to be heard on his defence before judgment was entered in the case against it. For instance, counsel for the Appellant was shut out and not given the chance on the 15/7/2008 to enable him address the court on the evidence so far adduced in the case before it was adjourned for judgment. In the circumstance of the case, counsel for the Appellant cannot rightly be accused of abandoning the Appellant’s case because the further cross-examination of DW2 closing the case for the Defendant and adjournment of the case for judgment were done in just two (2) days that the counsel was unavoidably absent from the High Court.

The High Court and the counsel who appeared for the Respondent knew or at least are presumed to know the vital place of address of counsel at the conclusion of evidence by the parties in a case. Diligence and equity should have made both of them call for an opportunity for counsel in the case to address the court before the case was adjourned for judgment. The High Court simply rail roaded DW2, a witness in the case, to close the case for the Appellant, without any form of address on the evidence adduced in the case and went for judgment. The failure or refusal to allow parties or their counsel to address the court at the conclusion of evidence has been held to amount to a denial of fair hearing. See OBODO v. OLOMU (1987) 3 NWLR (59) 111; FAMUROTI v. AGBEKE (1991) 3 NWLR (189) 1; OYEKAN v. AKURINWA (1996) 7 NWLR (459) 128 at 150.

By virtue of Section 294 (1) of the Constitution, a counsel who appears and conducts a case for a party has the right to address the court at the conclusion of evidence and before judgment or decision of the court was delivered in the case. Where opportunity was denied for counsel to exercise such right by delivering the final address before decision or judgment of the court in the case, the consequence is to render the proceedings which culminated in to the decision or judgment and decision itself, void for breach of the right to fair hearing. See IHOM v. GAJI (1997) 6 NWLR (509) 526 at 522.

I am aware of the law as stated in cases such as OWENA BANK v. MUHAMMED (1998) 1 NWLR (533) 301 at 308 where this court had said that a person who has been appearing in a matter before a court and who absent himself on a particular date set for hearing has a duty to check the progress of the matter in his absence without any formal notification of an adjournment date. However, as I have stated earlier, apart from the absence of counsel for the Appellant from the High court proceedings of the 14th and 15th July, 2008 the High court turned a witness into a party and counsel at the same time and then proceeded to adjourn the case for judgment without informing him of the right to address the court as provided in Section 294 (1) of the Constitution which says thus:-

“294. (1) 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 …

By the above provisions, it is mandatory, obligatory and binding on the High Court to give the parties or their counsel the opportunity to deliver or make final addresses after the conclusion of evidence at the trial and before its decision in a case.

Where Counsel for a party was present in court at the conclusion of the evidence, knowing the constitutional right to address the court, he may deliver such address immediately or request for a date to enable him do so either orally or in writing as the court may deem fit to order. However, where the counsel representing a party in a case was unavoidable absent as in the present appear, from the court at the conclusion of evidence, the High court had the binding duty imposed by the above provisions of the Constitution to give the party or the said counsel an opportunity to make or deliver the final address in the case in line with the principle of fair hearing, before adjourning the case for judgment or decision, I can find no reason whatsoever, since none was given in the record of the proceedings of the 15/7/2008 why the High Court chose not to inform the witness turned party, who did not know of the right to deliver a final address, before acceding to the invitation by the counsel for the plaintiff (Respondent) to proceed to judgment. It was inexcusable for that court to have done what it did, to put mildly.

In the result, I find for the aforementioned reasons that the Appellant was indeed denied the right to a fair hearing by the High Court when it failed to give or provide the opportunity for the Appellant or its counsel to deliver a final address at the conclusion of evidence and before it delivered the judgment appealed against. In consequence, I resolve the issue in favor of the Appellant.

The resolution of the issue 1 would appear to have overtaken the issue 2 since the proceedings leading to the judgment appealed against are by the beach of the principle of fair hearing therein, rendered void. I am mindful of the exhortation of the apex court in several case the most recent of which is the case of OVUNWO v. WOKO (2011) 6 MJSC (III) 85, that this court in particular, being an intermediate court, should pronounce on the issues which arise for decision in an appeal. However that directive was in the form of a general principle to which the apex court itself had mentioned exceptions thereto. For instance, in the case of FEDERAL MINISTRY OF HEALTH v. CSA LTD. (2009) 9 NWLR (1145)193 at 221 – 1, the Supreme Court had stated thus:-

“Except in this court, all issues ought and must be considered and dealt with by the intermediate court, except or unless in the clearest of cases, the Court of Appeal should endeavour to resolve or pronounce on all issues put before it.”

The exception introduced in the above statement as can be observed, “is in the clearest of cases” which however was not expatiated upon by the apex court in the case. It however gave a guide in the case of OVUNWO v. WOKO (supra) at page 100 of the report where Chukwumah-Eneh, JSC, reading the lead judgment had said that-

“It is no longer in doubt this court demands of, as a general rule, on all issues properly placed before them for determination in order, apart from the issue of fair hearing, not to risk the possibility that the only issue or issues decided by them could be faulted on appeal.”

So the issue of fair hearing exempted in the above statement is one of the clearest of cases mentioned by the apex court in the earlier case of FEDERAL MINISTRY OF HEALTH v. C.S.A. LTD. (supra) which if decided or pronounced upon, in favour of an Appellant, the duty to consider and deal with other issues raised by him which arose in an appeal, would abate. In such a situation, the issue of fair hearing would have subsumed the other issues raised against the decision of the Lower Court since the entire proceedings from which the decision resulted, were rendered void by the pronouncement on the issue. This is the position in the present appeal because my resolution of the issue 1 in favour of the Appellant has overtaken and subsumed the issue (2) of whether the Respondent had proved his claims and thereby entitled to judgment. In the absence of fair hearing there could be no proper judicial proceedings in which a court could decide or determine the civil rights or obligations of any of the parties to a case before it. For that reason, I do not consider it worthwhile or necessary to consider or deal separately with the reframed issue 2 which has been subsumed in and by the resolution of the issue 1.

In the final result, I find merit in the issue 1 and ground 4 from which it enured and allow the appeal thereon. Accordingly, the decision of the High Court contained in the judgment delivered on the 5/8/08 in suit No, HJ/4/96 is hereby set aside and it is ordered that the case be remitted to the Chief Judge of the High Court, Cross River State for assignment to another Judge for a trial de novo in which the principle of fair hearing shall be strictly complied with. Parties are to bear their respective costs of prosecuting the appeal.

UZO I. NDUKWE-ANYANWU, J.C.A: I had the privilege of reading in draft form the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA. I agree that this appeal is meritorious and therefore allowed; I abide by all the consequential orders in the lead judgment.

JOSEPH TINE TUR, J.C.A: Having read in advance the draft judgment of my Lord, Mohammed Lawal Garba, JCA and I agree with the conclusions and orders made therein.

The proceedings conducted on the 14th day of July, 2008 by His Lordship Edem J., of the High Court of Justice, Ogoja, Cross River State may be likened to that conducted by Rhodes-Vivour, J., sitting in the High Court of Justice, Sapele in then Mid-Western State of Nigeria in Albert Ilona & George Ugboma V. Ojugbeli Dei & Mgbeku Olise (1971) 1 NMLR 5. In that case the 1st plaintiff and his learned Counsel were in Court on 26-05-1967. The 2nd defendant was absent; others were present. Takpor Esq. held brief for Ogbobine Esq. learned Counsel appearing for the plaintiffs. Oji and Etuwewe Esq. appeared for the defendants. Takpor Esq. informed the Court that the plaintiffs were not prepared to proceed with their case since Ogbobine Esq. was in the Supreme Court in Lagos and the Surveyor could not be traced. Counsel asked for adjournment. Oji Esq. responded that he was prepared to go on with the defendants’ case. The learned trial judge adjourned the suit to 29-05-1967 for judgment. On that day his Lordship delivered judgment dismissing the plaintiffs’ suit without determining the application for adjournment. The point on appeal before the Supreme Court was whether the learned trial judge had erred in law in dismissing the plaintiffs’ claim without a determination of the application for adjournment. In allowing the appeal the Supreme Court held at page 7-8 per Udo Udoma, JSC that:

“… This is a case in which the record indubitably speaks for itself. It is clear that the learned trial judge did not direct his mind, nor did he exercise his discretion with respect to the application for adjournment properly made to him. It is obvious in the present case that the application for adjournment was not dealt with at all. It was the duty of the learned trial Judge before deciding to dismiss the plaintiffs’ case to have disposed of the application by clearly informing the Counsel for the plaintiff that the application was refused. That was not done. Instead the learned trial Judge reserved judgment which he delivered as already stated above.”

Having examined the law viz-a-viz entries on record Udo Udoma JSC continued at page 9 of the judgment as follows:

“As already stated, the point which calls for decision in this appeal is a short one. The question is: was the learned trial Judge right to have dismissed the plaintiffs’ claim in the circumstances disclosed by the record without first giving consideration to and making a ruling on the application for adjournment? The answer to that question must be in the negative.

We think the learned trial Judge fell into error and so left himself open to criticism by his failure to communicate to the plaintiffs’ Counsel and, indeed, also to record in his notes that he had refused their application for adjournment. The question whether or not to grant an adjournment is a matter in the discretion of the Court. But that discretion must at all times be exercised not only judicially but also judiciously. ”

On 14-07-2008 Dw2 informed the learned trial Judge the Counsel for the defendant Bank was unavoidably absent but said he had sent a letter to the Court. The clerk of Court intimated His Lordship there was no letter from Counsel. The entries on record do not show any other communication with Dw2 before his further cross-examination. Next the suit was adjourned to 15-07-2008 for him to call other witnesses. The proceedings of 15-07-2008 have also been reproduced in the lead judgment hence I do not need to replicate them. The granting of adjournment is at the discretion of the learned trial Judge regard being to the peculiar circumstances of each case. See Odusote v. Odusote (1971) 1 NMLR 229; Solanke v. Ajibola (1969) NMLR 253 and Ceekay Traders Ltd. V. General Motors Co. Ltd. (1992) 2 SCNJ (Pt.1) 151. In deciding to grant or refuse an application for adjournment whenever made, the Court takes into consideration the interests of the parties, the Court and other factors, example the previous conduct of the party/counsel applying for adjournment. See NPA V. Construzioni Generali Farsura Cogefar Spa & Ors (1974) 1 All NLR (Pt.2) 463 at 471-472.

On 14-07-2008 the defendant was not represented by learned Counsel. It was incumbent on the learned trial judge to bear in mind Dw2 was only a witness in the matter for the Bank. An unrepresented accused in a criminal case is often assisted to some extent by the learned trial judge in putting forward his defence and calling his witnesses. See Rex V. Gbadamosi (1940) 6 WACA 84/89 referred with approval by the Supreme Court in The Queen V. John Ekelagu (1960) 5 FSC 217 at 220. This requirement extends to an unrepresented litigant in civil cases. See Ajetunmobi V. Owowumi (1961) 1 All NLR (Pt.1) 120 at 131. See also Ojiagwu V. Cpl. Idoma (1977) 4 FCA 1 at 4.

To show the futility of the judgment of the learned trial judge is the fact that the Respondent was the plaintiff and the Appellant Bank the defendant in the lower Court. Oyenike Innocent (Dw2) was only called by the Bank to testify on 09-07-2008. Though the defendant Bank was not represented by Counsel the Court allowed the plaintiff’s learned Counsel in person of J. Ikpala Esq. to cross-examine Dw2 on 14-07-2008. Dw2 next indicated that he will call a witness on 15-07-2008. On 15-07-2008 Dw2 intimated the Court he had no witness to call but went further to close the case of the Bank and ask for a date for judgment. This was with the tacit approval of Ikpala Esq. of Counsel to the plaintiff/Respondent. The matter was adjourned to 05-08-2008 for judgment.

I have never come across a situation where a witness called by a party would take over the role of defence counsel, seek to call witnesses failing which he closes that party’s case and ask for a day for judgment. This strange procedure is not provided for in the High Court of Cross River State (Civil Procedure) Rules, 2008. Order 30 rule 11(1) and (2) of the Rules supra provide that:

“11(1) A party shall close his case when he has concluded his evidence. Either the claimant or defendant may apply orally to have the case closed.

(2) Notwithstanding the provisions of sub-rule 1 of this order, the Judge may on his own motion where he considers that either party fails to conclude his case within a reasonable time, close the case for the party.”

The Rules of the Court provide for persons that can close a case, namely, a claimant or defendant. This includes a party’s legal representative or the trial judge. See Order 30 rule 11(1) and (2) of the Rules supra. Certainly there is no provision for a witness called by the claimant or defendant to close a case for a party. The exercise of judicial discretion can be interfered with by an appellate Court in certain circumstances. See Maxwell V. Keun (1927) All E.R. Rep. 335. In Saffeidine V. Commissioner of Police (1965) NMLR 116 Ademola C.J.N. held at page 117-118 that:

‘Now, the principles to be applied in considering an appeal from an order made by a Judge in his discretion, have been enunciated in a few judicial decisions of which reference may be made to one or two.

In Evans V. Bartlam (i) Lord Atkin at pages 480-481 said:

“And while the appellate Court in the exercise of its appellate power is no doubt entirely justified in saying that normally it will not interfere with the exercise of the judge’s discretion except on ground of law, yet if it seem that on other grounds the decision will result in injustice being done it has both the power and the duty to remedy it.”

In the case of Blunt V. Blunt (3) which dealt with the exercise of discretion in divorce cases, Lord Simon at pages 526 and 527 of the report referred to the case of Charles Osenton V. Johnson (2) and made it clear that the appellate tribunal does not reverse the order of the Judge merely because it would have exercised the original discretion had it attached to the appellate tribunal, in a different way: and he continued:

“But if the appellate tribunal reaches the clear conclusion that there has been a wrong exercise of discretion in that no weight, or no sufficient weight, has been given to relevant consideration …then the reversal of the order on appeal may be justified.”

Lord Simon further referred with approval to what Swifen Eady, M.R., had said in Holland V. Holland (4) on the exercise of the Judge’s discretion to divorce matters. There the learned Master of the Rolls had said that:

“The question for consideration by this court is whether his judgment is erroneous, and not whether we should have exercised the discretion in the some manner as the judge below did. There is no appeal from his discretion to our discretion, and the appellant is not entitled to succeed unless the judgment is erroneous.”

These are the principles which we must apply in determining this appeal; before doing so, we reiterate the fact.’

I am of the humble view that his Lordship in the lower Court did not exercise his discretion judicially and judiciously before proceeding with the hearing on 14-07-2008 and 15-07-2008. This led to a miscarriage of justice. For the fuller reasons given by my Lord in the lead judgment, I also allow the appeal and abide by the orders made by my Lord.

Appearances

For Appellant

AND

For Respondent