VIRGINIA AKABOGU (MRS.) & ORS v. CLEMENT IFEMENA AKABOGU(2002)

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VIRGINIA AKABOGU (MRS.) & ORS v. CLEMENT IFEMENA AKABOGU

(2002)LCN/1133(CA)

In The Court of Appeal of Nigeria

On Thursday, the 11th day of April, 2002

 

CA/E/3/2000

 

JUSTICES

JUSTIN THOMPSON AKPABIO   Justice of The Court of Appeal of Nigeria

 

JOHN AFOLABI FABIYI   Justice of The Court of Appeal of Nigeria

 

MUSA DATTIJO MUHAMMAD   Justice of The Court of Appeal of Nigeria

 

Between

  1. VIRGINIA AKABOGU (MRS.)
  2. UCHE AKABOGU
  3. PASTOR MICHAEL AKHIGBE (for himself and on behalf of Milk and Honey Assembly, Awka) – Appellant(s)

 

AND

CLEMENT IFEMENA AKABOGU –  Respondent(s)

 

AKPABIO, J.C.A. (Delivering the Leading Judgment): This is an appeal against a judgment of Olike, J. of the High Court of Anambra State, holden at Awka in suit No. A/74/95 delivered on 9/4/98 where-in he entered judgment for the plaintiff by granting him declaration of entitlement to statutory right of occupancy in respect of land situate at No. 87 Enugu Road, Awka; N5,000.00 general damages for trespass, injunction restraining the defendants from further trespass into the land in dispute, and costs of N5,000.00.

At the trial court the claim of the plaintiff was worded as follows:- The plaintiff claim against the defendants jointly and severally as follows:-

1: A declaration that the plaintiff is the person entitled or deemed to be entitled to a statutory right of occupancy over a portion of land situate and being at No. 87 Enugu Road, Awka which rental value is N100.00(one hundred Naira).

  1. N5, 000.00. (Five thousand Naira) being general damages for trespass.
  2. An injunction restraining the defendants, their agents servants and/or privies from further trespass to the land. Dated this 27th day of April, 1995.

The evidence of the plaintiff in support of his claim may be summarised as follows:-

The father of plaintiff was one Lazarus Akabogu, who had a large expanse of land along Awka-Enugu Road. Sometime in 1954, the said Lazarus Akabogu partitioned his land into three, giving one part to his brother Raymond Akabogu, now deceased, a second part to his eldest son Ebenezer Akabogu, husband of 1st defendant and father of 2nd defendant. The 3rd portion was then given to plaintiff, Clement Ifemena Akabogu. According to plaintiff, no portion was given to their father’s other junior children, nor to his daughters. However that was not material for the purposes of this case. The material portion seems to be that of the three persons to whom land was granted, the plaintiff seemed to have been the most substantial, or financially buoyant, in that he was able to build a row of seven stores and seven rooms for his senior brother Ebenezer Akabogu, on the plot given to that one, on condition that he should recoup his expenses from the rents deriveable from the said stores and room, and that was duly done. So much was conceded by the 1st defendant (wife of Ebenezer Akabogu, now deceased). However, the portion granted to the plaintiff by their late father had no immediate access to the Awka-Enugu Road. Following a complaint made by plaintiff to their family, a decision was taken that an access road should be constructed through one of the stores and room, built by plaintiff for his senior brother, as compensation for his show of love and concern, and that was done. It should also be mentioned that while the 1st and 2nd defendants lived on the land of their late husband and father at No. 87 Enugu Road, the plaintiff lived or resided somewhere else at No. 51 High Court Road, Awka, and not on the plot granted to him by their late father. However, as part of his acts of possession and ownership, the plaintiff averred that she had got the Ministry of Works to install a water tap for him in 1962, in the land, i.e., the remaining portion of No. 87 Enugu Road, Awka, given to him, and that he fenced same with cement walls and erected a batcher therein which was destroyed during the civil war. It was also averred that shortly after the decision of the family to grant him access road, he plaintiff erected a dwarf wall along the access road, to demarcate it on the lines agreed by the meeting; and that dwarf wall was still in existence.

Finally the plaintiff averred that sometimes in April, 1995, he noticed that the 3rd defendant was conducting a church service in the land in dispute. He confronted the 3rd defendant and he told him that the 1st and 2nd defendants gave him the land. The plaintiff stated further that the 3rd defendant had brought in planks and other building materials onto the land for the purpose of building a structure in the land in dispute as a church. The plaintiff later instituted this action as already set out above.

In response to the above, the defendants filed a joint statement of defence in which they denied almost all the averments in the plaintiff’s statement of claim. They said that their ancestor Lazarus Akabogu died intestate, and that the document that purported to be his will was being contested in court. They filed a survey plan of the land in dispute different from that filed by plaintiff. They said nothing about whether the land they now occupy was inherited from Lazarus Akabogu, either by will or by way of gift inter vivos. They denied that plaintiff ever built a wall round his land in dispute either before or after the Nigerian Civil War. They conceded however that- .

(vi) In 1972 at the instance of Ebenezer Akabogu (deceased) the plaintiff built a row of seven stores and

seven rooms on the condition that he the plaintiff would recoup his contribution to the building of the stores and rooms from rents collected.

(vii) The plaintiff recouped his contribution with interest.

At the end of pleadings the matter went for trial before Olike, J. So far so good. However, at the trial things began to fall apart.

At this stage it will be proper to reproduce the pertinent paragraphs of the appellant’s complaint which appear at pages 2-3 of appellants’ brief as follows:-

After the court below had received evidence from plaintiff and his witnesses, the court below failed and

refused to allow the defendants/appellants close the defence.

The court suo motu closed the case of the defendants/appellants and refused to allow any of the counsel to address the court and proceeded to enter judgment for the plaintiff/respondent on 9th day of April, 1998.

The defendants/appellants being dissatisfied with the judgment filed notice and grounds of appeal on 3rd June, 1998.

Two issues for determination were then formulated as follows by the appellants.

Issues for determination:

(1) Whether the denial of the defendants/appellants’ the right to allow all their witnesses to testify and to address the court before judgment amounted to denial of fair hearing of the case?

(2)Whether the evidence of the plaintiff/respondent and his witnesses and those of the defendants/appellants were properly considered and weighed and the weight tilted in favour of the plaintiff/respondents?

In response to the above the plaintiff who will hereinafter be referred to as the respondent, also filed a respondents’ brief in which he gave his own version of the events leading to the disputed judgment of the court below. As the narrative was rather long, I give hereunder only the concluding paragraphs.

“Again on the 31/3/98 when the defendants as usual applied for an adjournment through their counsel E.E. Orji Esq., the court recorded for the plaintiff’s counsel thus Mr. Ike Onyejiaka in opposing the application refers to eight adjournments from the 12/11/97 to date at the instance of the defendants. Of all the dates the defendants have called one witness and have always said they will call their last witness. The defendants have not shown keenness in prosecuting their defence. They are out to frustrate the case. Urges the court to compel the defendants to close their case as justice delayed is justice denied. No subpoena to the witness.

Indeed on the same 31/3/98, the court recorded for the defendants as follows:

“E.E. Orji for the defendants says that they are unable to get their last witness who is supposed to come from Lagos, says the witness is very material, applies for a short adjournment.

On the same 31/3/98, the court warned thus:

” …The court will accommodate the defendants for the last time and if they fail to produce the witness on 6/4/98 close the case and proceed to consider the judgment.

The suit was then adjourned on agreement by counsel to 6/4/98. On that date, the court recorded for the

defendants as follows: Mr. Maduekwe says the matter is for them to call their last witness, whose evidence is considered vital. It has not been possible for them to contact the witness. They have subpoenaed the witness but cannot account for his absence. Ask for adjournment as witness is vital to them and the court.”

Indeed on the 6/4/98, the court closed the defence case and delivered its judgment on 9/4/98.

At the end of respondent’s narrative, two issues for determination were also formulated as follows:-

Issues for determination

  1. Whether in the determination of the case before him, the learned trial Judge gave the defendants opportunity to defend themselves.
  2. Whether the plaintiff did not prove his case before the court on the preponderance of evidence.

After careful consideration of all the issues formulated above by learned counsel for both sides, I have come to the conclusion that there are only two issues for determination in this case viz:-

  1. Whether there was fair and complete trial in this case and
  2. If there was a fair trial, whether on the basis of the pleadings and available evidence, judgment was rightly entered in favour of plaintiff/respondent.

If I come to the conclusion that there was no fair trial or that the trial was inconclusive, the whole exercise would have been a nullity and will be set aside without my having to consider the second  issue. But should I come to the conclusion that there was a fair trial, and that the trial was complete notwithstanding absence of addresses on both sides, I shall then proceed to consider the second issue.

Issue No. (1)

“Whether there was a fair and complete trial in this case?

At the oral hearing of this appeal on 11/2/2002. Enechi Onyia Esq. S.A.N. the learned senior counsel for the appellants adopted their brief of arguments and also sought leave of court to use case of Offor v. State (1999) 12 NWLR (Pt. 632) 608 at seq. and he was duly granted. He then also referred to Order 24 r. 17(9) of High Court Rules of Anambra State, 1988 and submitted that there was no fair hearing. He added that judgment of the court below was in breach of Order 24 r. 17(9) of Anambra State High Court Rules which amounted to a denial of fair hearing. He therefore urged the court to set aside the judgment and order a new hearing in the matter. Hurried justice he said, was as bad as delayed justice  [Muhammed v. Kano N.A. (1968) 1 All NLR 424.]

In reply to the above Ike Onyejiaka, learned counsel for the respondent also adopted his brief and submitted that the learned trial Judge gave appellants’ counsel ample opportunity to make their address, which they failed to do. At P.7 of their respondent’s brief, they counted the number of time appellant asked for adjournment – eight times. Also referred to P. 5 of their brief and said the appellants did not want the case to end. Before concluding he pointed out that the court did not take address of either the defence or plaintiff’s counsel. Hence there was nothing to complain about. Respondent’s counsel was not given undue advantage over that of the appellants.

He therefore urged the court to dismiss this appeal.

I have carefully considered all the facts of this case, as well as the legal arguments of learned counsel on both sides made both in their briefs and orally before us, and find that there is no dispute that the learned trial Judge closed the defendants’ case himself, and gave neither plaintiff nor defendants opportunity to address the court, before adjourning for judgment. The only question for determination now is whether the procedure adopted by the learned trial Judge above, rendered his judgment valid or invalid, a nullity or a subsisting judgment. In order to decide this question, I have had to look at the case of Offor v. The State (supra) cited by learned counsel on both sides as well as the more recent and yet unreported case of Rev. Obiorah Okezie Agbogu v. Geoffery Adichie decided by this court on 27th February, 2002, in appeal No. CA/E/38/2000, (Coram Akpabio, Olagunju and Muhammad, J.J.C.A.).

In the case Grace Offor v. The State decided by Port Harcourt Division of the court (Coram Edozie, Rowland and Onalaja, JJ.C.A.) the appellant was charged with the offences of obtaining goods and money under false pretences. At the trial before the Owerri High Court, she kept changing her defence counsel apparently because of financial constraints. Finally, at the close of the evidence, the prosecution was allowed to address, while the learned defence counsel was not allowed to address as one of her counsel had earlier withdrawn from the case, and was discharged. At the end of the day, the learned trial Judge found the accused guilty as charged on both counts, convicted, and sentenced her to various terms of imprisonment. On appeal to the Court of Appeal, (Port Harcourt Division), the appeal was unanimously allowed on the ground that there was breach of the rules of fair hearing. On the right to make final addresses, the court had the following to say-

“On right to make final address-

Judicially interpreted, section 258(1) of the 1979 Constitution vests a right in the parties to make final addresses and where one of the parties makes his final address the other party must be given opportunity to reply or give his own final address before pronouncement of judgment. A denial to one party from giving his final address whilst the other party is allowed is an infraction of the rule of natural justice of audi alteram partem.

We in this court subsequently followed the above decision in the yet unreported case of Rev. Obiorah Okezie Agbogu v. Geoffrey  Adichie decided on 27th February, 2002 in appeal No. CA/E/38 2000, (Coram Akpabio, Olagunju and Muhammad, J.J.C.A.) in which the facts were similar in that the learned trial Judge was rather in a hurry to proceed on retirement. He therefore compelled the defendant to close his case; called for defence counsel’s address, and when plaintiff could not reply because his counsel was absent, he adjourned for judgment, which was delivered the following day in favour of defendant. The plaintiff appealed, this court applied Offar’s case, which was considered to be on all fours, and said as follows:-

“A trial in which one party’s counsel was given opportunity to address the court on law and facts and the other party not given, cannot in any respectful view be said to have been fair.” Before concluding we also made the following observation.

It is our law that the sins of the counsel should not be visited on his client (Doherty v. Doherty) (1964) 1 All NLR 299).

During his oral submission in this court by Ike Onyejiaka, learned counsel for respondent in this case, it was pointed out that in the instant case neither the plaintiff’s nor defendants’ counsel was called upon to address. Therefore no injustice was caused to any body.

We almost could have bought the above argument. However, further reflection and research revealed the very pertinent fact that counsel’s addresses at the end of every trial is not a luxury or cosmetic, but rather a legal and indeed a constitutional requirement in the absence of which a trial cannot be said to have been concluded, unless learned counsel on both sides waived their rights, which was not so in this case, see S.258(1) of the 1979 Constitution of Nigeria which was in force at the time of this trial, and provided as follows:

Every court established under this Constitution shall deliver its decision in writing not later than three months after the conclusion of evidence and final addresses; and furnish all parties to the cause or matter determined with duly authenticated copies of the decision on the date of the delivery thereof. (Italicising mine)

See also the Supreme Court case of Abilawon Ayisa v. Olaoya Akanji and Others (1995) 7 NWLR (Pt. 406) 129 in which the court per Onu, J.S.C. made the following statements at P.144F and 145A-D.

On nature of right to address the court and effect where party denied address –

Where the right to address the court exists a party must not be denied that right. A denial may render the

proceedings null if a miscarriage of justice is occasioned. Addresses form part of the case and failure to hear the address of one party however overwhelming the evidence seems to be one-sided, it vitiates the trial (Obodo v. Olomu (1987) 3 NWLR (Pt. 59) at page 111; Niger Construction Ltd. v. Okugbeni (1987) 4 NWLR (Pt. 67) 787 referred to) See also the case of Salami v. Odogun (1991) 2 NWLR (Pt. 173) 291 where the Court of Appeal, per Sulu-Gambari, JCA. (as he then was) said the following at P. 301F-G on the effect of failure of a court to allow a party to address it.

“Where an address ought to be given and the same was not accorded to the party so entitled, any decision so arrived at will amount to a breach of fair hearing which is entrenched in section 33 of the 1979 Constitution of the Federal Republic of Nigeria and will surely vitiate the proceedings.

See also the case of Eagle Construction Ltd. v. Ombugadu (1998) 1 NWLR (Pt. 533) 231 where the Court of Appeal, per Opene, JCA. re-echoed the Supreme Court ratio in Salami v. Odogun (supra).

 

On the totality of the foregoing I must adopt the concluding dictum of my brother, Opene, JCA in the case of Ombugadu (supra) when he said:-

“A trial court does not just call for addresses for fun or as a matter of course. An address is a part and parcel of the trial and its immense and enormous value is unquantifiable and its absence can tilt the balance of the trial court’s judgment as much as the delivery of an address after the conclusion of evidence can…”

In view of the foregoing, I have no hesitation in holding that failure to have taken the final addresses of learned counsel on both sides not only unconstitutional but it also vitiated the judgment and rendered it a nullity. It becomes unnecessary therefore for this court to consider issue No.2 about the merits of the judgment.

This appeal therefore succeeds and is hereby allowed. Judgment of Olike, J. at the court below is hereby declare to be a nullity as it was incomplete. It is accordingly hereby set aside, and a fresh trial ordered by another Judge of the Anambra State High Court, with costs of N5, 000.00. (Five thousand Naira only) in favour of the appellants.

 

FABIYI, J.C.A. I had a preview of the lead judgment just delivered by my learned brother, Akpabio, JCA. I completely agree with his reasons leading to the conclusion that the appeal is meritorious and should be allowed.

I need to stress the point here that the right of the appellants to address the trial Judge is a constitutional one. See section 258(1) of the 1979 Constitution of the Federal Republic of Nigeria applicable to the matter. That right must not be denied under the guise that a trial Judge is about to retire and therefore desires to rush the suit to conclusion without affording the parties due chance or opportunity to address him accordingly. A Judge should bow out peacefully.

A right of appeal, where it exists, should not be compromised. Failure to hear addresses vitiates the trial and renders the proceedings null if a miscarriage of justice is thereby occasioned. See Obodo v. Olomu cited in the lead judgment. Justice that is unduly hurried is no justice. Such often leads to the rock.

With my above observations and of course the fuller reasons ably adumbrated in the lead judgment, I, too hereby allow the appeal. I endorse all the consequential orders, including that relating to costs in the lead judgment.

 

M.D. MUHAMMAD, J.C.A. I have read the lead judgment just delivered by my learned brother, Akpabio, JCA. I adopt same with all the consequential orders as mine.

 

Appeal allowed

 

 

Appearances

Enechi Onyia, SAN (with him, Chukwujani Eze)For Appellant

 

 

AND

Ike Onyejiaka (with him, Onwudiwe)For Respondent

 

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