IN THE COURT OF APPEAL OF NIGERIA
On Thursday, The 21st day of January, 2014
1. CHIEF EZENIYILI UZOWULU (ODUAH)
2. CHIEF ODIMEGWU NWANZE (AFFAH)
3. CHIEF CHUKWUNZE NWANMOR (IKOR) ................. Appellants
4. CHIEF DANIEL NWANZE NWANJI (UTI)
(substituted for Chief Ugbolu Opene, Chief Nwadukwe
Opene and Chief Nwadialor Nwanze for themselves and
as representing the Uwaile Quarters of Oko-Amakom
Oshimili Local Government Area of Delta State by order of court of 04/6/2013)
1. MR. OFULUE AKPOR
2. CHIEF OBI IWEZE (OHOBOR) .............. Respondents
3. CHIEF BEN OBAH (IJELE)
(substituted for chief Nwaholue Charles Iweze
(The Onihe of Oko-Amakom), chief Nwachukwu Egonu,
Chief Christopher Olisa, chief Nzekwe Oba and Chief Opene Uzonwulu for themselves and as representating the Idoko Quarters of Oko-Amakom Oshimili Local Government area of Delta State of Nigeria by order of court of 04/6/2013)
K.E. Mozia SAN with H.G. Erhabor for the Appellants
G.R.I. Egonu SAN with N.F.P. Egonu Esq. and J.A. Okwe for Respondent
MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment):
The instant appeal is a fall-out of the Judgment of the High Court of Justice of Delta state, Asaba Judicial Division, which was delivered on November 3, 1997 in Suit No. A/147/94. By the Judgment in question, the lower court, Coram M. C. U. Odita J; granted all the declaratory and injunctive reliefs sought by the Respondents (Plaintiffs) against the Appellants (Defendants). Not unnaturally, the Appellants were utterly dissatisfied with the Judgment. Thus, by the original notice of appeal thereof, dated December 22, 1997, the Appellants appealed to this court seeking the following reliefs:
(1) To set aside the decision of the learned Judge sitting at the High Court of Justice, Asaba dated the 3rd day of November, 1997 and to allow the appeal and dismiss the Plaintiffs/Respondents case.
(2) In the alternative, to declare the while proceedings and Judgment a nullity and send the suit back for retrial before another Judge.
The circumstances surrounding the present appeal are not at all far-fetched. Undoubtedly, they are deducible from the record of appeal that's evidently transmitted from the court below to this court since about sixteen years ago i.e. on July 21, 1999.
It is evident from the record (pages 1 - 3), that the Respondent had filed in the court below the said suit (No. A/147/94) vide a writ of summons, seeking various declaratory and injunctive reliefs jointly against the Appellants. By paragraph 20 of the statement of claim thereof, filed on November 22, 1994, the Respondents claimed against the Appellants the following declaratory and injunctive reliefs
a. Declaration that the purported coronation of the 2nd to 4th defendants is null and void and in contravention of Oko-Amakom Native Law and Custom.
b. Declaration that the Uwaile quarters of Oko-Amako, which the defendants represents (sic) is not a ROYAL quarters and is not entitled to partake in the taking of the Onihe title, but the exclusive right of the Idoko quarters of Oko-Amakom to which the plaintiffs belongs (sic).
c. An order of perpetual injunction restraining the first defendant from further parading himself as the Onihe of Oko-Amakom.
Pleadings having been filed and exchanged, the suit eventually proceeded to trial. The Respondents (Plaintiffs) called four witnesses in the persons of the following: (i) OBI ANYAFULU CHRISTOPHER (PW1); (ii) PAUL OZA, PW2; (iii) HUMPHREY EMODI IFEANYI OBUMSE (PW3); and (iv) PATRICK AZUKA IWEZE (PW4), respectively.
On the part thereof, the Appellants called three witnesses in the persons of the following: (i) ENWUNMA COLLINS (DW1); (ii) ENEBELI PETER OGBUCHI (DW2); and (iii) MADINENYE NWADIOWE, (DW3), respectively. However, on 07/8/97, when the matter came up at the lower court for continuation of hearing, Emodi Esq, the Appellants' counsel orally applied to withdraw his appearance. The lower court readily granted Emodis' application. Consequent upon which, the Appellants orally informed the court that they needed to brief another counsel to prepare and present their address. Not unexpectedly, Mr. Egonu, SAN vehemently objected to the Appellants' application for an adjournment to enable them brief another counsel. The lower court upheld Mr. Egonu, SAN's objection and accordingly adjourned the matter to November 3, 1997 for Judgment. Where upon, the lower court proceeded to deliver the vexed Judgment on the said November 3, 1997 to the conclusive effect, thus:
The plaintiffs proved to my satisfaction how they came to own the title of Onihe. Consequently I find as a fact and so hold that the plaintiffs are the rightful owners of the Onihe Chieftaincy title to the exclusion of the Defendants...
From the totality of the evidence before me which I have seriously considered I am satisfied that the plaintiffs have proved their case according to law.
Consequently, the lower court entered Judgment for the Respondents (Plaintiffs) regarding all the three declaratory and injunctive reliefs thereof against the Appellants (Defendants), to the following effect:
(1) I declare that the purported installation of the 1st defendant as the Onihe of Oko Amakom by the 2nd and 4th Defendants and their people of Uwaile Quarters, Oko Amakom, is null and void and that it is a contravention of the native law and custom of Oko Amakom.
(2) I declare that the Uwaile quarters of Oko Amakom, which the defendants represent is not entitled to install or to have any person from that quarter installed the Onihe of Oko Amakom.
(3) An order of injunction restraining the Defendants and their people of Uwaile from holding out any person from Uwaile quarter, Oko Amakom, as the Onihe of Oko Amakom or from installing any person of Uwaile quarter as the Onihe of Oko Amakom or for any person from Uwaile quarter of Amakom parading himself as the Onihe of Oko Amakom from doing anything in contravention of the rights and privileges of the Onihe of Oko Amakom. I award costs of N1,000.00 for the plaintiffs against the defendants.
Thus, as alluded to above, the instant appeal is against the Judgment in question.
The parties had the privilege of previously filing their respective briefs of argument regarding the appeal. Most particularly, the Appellants' extant Amended brief, dated June 18, 2013 was filed on June 19, 2013 by Harold G. Erhabor Esq. of Ken E. Mozia (SAN) & Co. On the other hand, the Respondents' extant Amended brief was dated 14/10/13, but filed on 18/10/13.
The said Appellants' Amended brief of argument spans a total of ten pages. At page 2 of the brief, four issues have been formulated for determination, viz -
(i) Whether the learned trial Judge was right when he rejected the document tendered by DW1 under subpoena (copied at pages 156 - 169) of the Records.
(ii) Whether the learned trial Judge was right when he rejected the document (copied at pages 170 - 181 of the Records) tendered by the DW2.
(iii) If the answer to (i) and (ii) above and No whether in a proper evaluation of the content of the rejected documents the lower court ought to have dismissed the plaintiffs' case.
(iv) Whether the Defendants were deprived of their right to fair hearing when the learned trial Judge refused to adjourn the matter to enable them instruct another counsel to present their address.
On the other hand, the extant Amended Respondents' brief dated 14/10/13 but filed on 18/10/13, was personally settled by Mr. GRI Egonu, SAN. At page 3 of the Respondents' brief, the learned SAN has couched three issues for determination, viz:
(1) Whether the trial Judge was right in rejecting the documents sought to be tendered in evidence first by DW1 and thereafter by DW2.
(2) Whether the appellants were denied fair hearing?
(3) Whether on the pleadings and evidence at the trial the learned Judge was not right in entering Judgment for the Respondents in the case?
On 29/10/13, when the appeal last came up for hearing, the leading senior counsel, Ken. E. Mozia SAN adopted the Appellants' Amended brief filed on 19/6/13, and urged the court to allow the appeal, set aside the decision of the lower court and grant the reliefs sought in the appeal; to either dismiss the Respondents' case, or in the alternative, to remit the matter to the lower court for hearing by another Judge.
On the other hand, chief GRI Egonu, SAN adopted the Respondents' (Amended) brief filed on 18/10/13. The learned silk submitted, that on the pleadings and evidence on record, the lower court, in entering Judgment for the Respondents, the right of fair hearing of the Appellants had not been breached. Thus, he urged upon the court to uphold the said Judgment, and dismiss the appeal
In a nutshell, the submission of Mr. Mozia, SAN on issue No.1, is to the effect that the Appellants' case is that by a subpoena Duces Tecum duly issued by the lower court (page 95 line 5 of the Record), the Directorate of Chieftaincy affairs was (ordered) to produce and tender a "Letter dated 24th November, 1990, from Oko - Amakom Community to the Directorate."
Further submitted by the learned silk, that was the subpoena referred to by the DW1 in his testimony. That, the DW1 testified that he had the documents. The said documents were duly certified true copies of what was in the custody of the directorate of Chieftaincy Affairs, Delta State. Thus, no further foundation (was) needed to be laid before the documents, which were not only Certified True Copies, but in the custody of the Directory, could be tendered. See Sections 109, 111 & 112 of the Evidence Act; THE UNITED INSURANCE CO. LTD VS. UNIVERSAL COMMERCIAL AND INDUSTRIAL CO. LTD (1999) 3 NWLR (Pt. 593) 17 @ 25 A - D; ANATOGU VS. IWEKA II (1985) 8NWLR (Pt. 415) 547 @ 572 paragraphs C - D; TORTI VS UKPABI (1984) 1SCNLR 214.
It was postulated by the learned SAN, that a look at pages 164 and 169 of the Records shows clearly that the preconditions stipulated in Section 111 (I) of the Evidence Act (Supra) were complied with. Therefore, the lower court was wrong in rejecting the said document, more so (when) the objection thereto had nothing to do with the requirements of Section 111 of the Evidence Act: ANATOGU VS. IWEKA (Supra); TORTI VS UKPABI (Supra).
According to the learned silk, the document tendered in the instant case, is clearly relevant and was pleaded in paragraph 13 of the Amended Statement of Defence (page 88 of the Records). Thus, the court has been urged upon to admit the said document, marked rejected, and to rely on same.
On Issue No.2, the Appellants learned senior counsel submitted, inter alia, that the document in question is exactly of the same contents with the one referred to in Issue one. However, the only difference is that the present document is a counter copy retained by the DW1 after it was signed. See page 179 of the Records.
It was contended that the Ruling of the lower court, at pages 98 - 99 of the Records, thereby rejecting the document and so marked, was not tenable in law. Thus, the court is urged to admit the said document as primary evidence, the same having been signed by the parties thereto as the weight to be attached thereto is a different issue altogether.
On Issue No.3, it was submitted, inter alia, that the Appellants (Defendants) pleaded in paragraphs 12 and 13 of the Amended Statement of Defence that a document reflecting the correct position on traditional chieftaincy titles of Oko-Amakom was produced by consensus, executed and forwarded to the Government. This was to enable the Government rectify its own records as contained in the Schedule to the Traditional Rulers and Chiefs Edict, 1976. A Certified True Copy of the said document tendered by DW1, was rejected for no good reason by the lower court.
Thus, according to the learned silk, had the lower court properly appraised the evidence which ought to have been admitted, it would have come to the irresistible conclusion that the Respondents (Plaintiffs) had failed to prove that they were exclusively entitled to the chieftaincy title of Onihe - See page 75 of the Records regarding the evidence of PW3; 136 of the Record, regarding the findings of the lower court.
The reference by the lower court, at page 138 of the Records, to DW4, is allegedly erroneous. The reason being that "there was no DW4 in this suit." Equally contended, was the fact the lower court placed reliance on the document not being the one sent to Benin when that fact was not referred to by the witness at all.
The Appellants' Issue No.4 relates to the vexed fundamental question of breach of fair hearing. An allusion was made to pages 113G to 115 (Records) showing that the Respondents' (Appellants') counsel was permitted to withdraw from the case on 07/8/97. However, the Appellants' request for an adjournment to brief another counsel was (allegedly) rejected by the lower court. Instead, the lower court called upon them to address it, failing which they were foreclosed. Whereupon, the lower court adjourned for Judgment.
It was submitted by the learned silk, that the lower court was wrong in not adjourning the matter; as it did not exercise its discretion judicially and judiciously in refusing the adjournment sought. See OLORI MOTORS & CO. LTD. VS. UBN LTD. (1998) 6 NWLR (Pt. 554) 493; USIKARO VS. ITSEKIRI LAND TRUSTEES (1991) 2 NWLR (Pt. 172) 150; SALU VS. EGEIBON (1994) 6 NWLR (Pt. 348) 23.
Equally postulated by Learned SAN, that an address of a counsel forms a party's case. And failure to hear the address of one party, however overwhelming the evidence on one side, vitiates the trial; as it's not a mere procedural irregularity, but a breach of the right to fair hearing. See OBODO VS. OLOMU (1987) 3NWLR (Pt. 59) 111 @ 121; SALAMI VS. ODOGUN (1991) 2 NWLR (Pt. 173) 291; NDU VS. STATE (1990) 7 NWLR (Pt. 164) 550 @ 561; AMOUGH VS. ZAKI (1998) 3 NWLR (Pt.542) 483.
In conclusion, the court has been urged upon to allow the appeal and dismiss the plaintiffs' case because
(i) The document dated the 20th November was wrongly rejected;
(ii) A proper appraisal of the evidence before the court including the document rejected reveals that the plaintiffs' case is manifestly unsupportable; and
(iii) The Appellants' right to a fair hearing was denied them.
On the other hand, as alluded to above, the Respondents' Amended brief of argument spans a total of 19 pages. It was settled by G.R.I. Egonu, SAN. At page 3 of the said brief, the learned silk has couched three issues for determination viz:
(1) Whether the learned trial Judge was right in rejecting the documents sought to be tendered in evidence, first by DW1, and thereafter by DW2?
(2) Whether the Appellants were deemed fair hearing?
(3) Whether all the pleadings and evidence at the trial the learned Judge was not right in entering judgment for the Respondents in the case.
In a nutshell, the submission of Mr. Egonu, SAN on issue No.1 is to the effect that, having regard to the evidence on record, it's clear that the subpoena referred to by the DW1 in his evidence at page 95 lines 3 to 7 of the Record of Appeal was not tendered before the court. And that there was nothing connecting the documents sought to be tendered with the alleged subpoena in question.
It was further submitted, that the quotation under paragraph 4.1. at page 3 of the Appellants' brief, to wit
"Letter dated 24th November, 1990, from Oko-Amakom Community to the Directorate."
was introduced into this appeal in the Appellants' brief; it's not part of the record of appeal. Thus, it should be discarded. It was an attempt by the Appellants to improve on their case at the trial.
It was postulated by the learned silk, that the two cases of UNITED NIGERIA INSURANCE CO LTD. VS. UNIVERSAL COMMERCIAL AND INDUSTRIAL CO. LTD. (1999) 3 NWLR (Pt. 593) 17, and CHIEF PHILIP O. ANATOGU & ORS VS. HRH IGWE IWEKA II & ORS (1995) 8 NWLR (Pt. 415) 547, have no application to the present appeal. In both cases, (unlike in the present case) the documents sought to be tendered were produced before the trial courts. See also the case of OBANWUNA OGBUNYIYA & ORS VS. OBI OKUDO & ORS (1979) 6 - 9 SC 32.
According to the learned senior counsel, for a decision or principle in a previous case to apply to a later case, the facts and circumstances of both cases must be the same, similar or substantially the same or similar. See ADEGOKE MOTORS LTD VS. DR. BABATUNDE ADESANYA & ANOR (1989) 3 NWLR (Pt.109) 250 @ 256 - 266 G - A; 275 B - E; SUNDAY OBASOHAN VS. THOMAS OMORODION & ANOR (2001) 14 NWLR (Pt. 729) 206 @ 223 - 224, H - A; CHIEF ABUBAKAR ZIBIRI ODUGBO VS. CHIEF ALIU ABU & ORS (2001) 14 NWLR (Pt. 732) 45 @ 91 -92 H - C; 100 G - H.
Allegedly, from the evidence of DW1 at page 95 lines 3 to 7 of the Record, the DW1 appeared in court pursuant to the subpoena to the Directorate of Chieftaincy Affairs Asaba to tender document. He was unsworn. That, the DW1 could have produced the documents by placing the subpoena and the documents on the table in court where they could be identified and made evidence and use by other witnesses. See R. VS. GREMORE (1961) NZLR 384 quoted at page 40 lines 29 - 41 in OGBUNYIYA'S case (Supra).
That the DW1 could also have entrusted the subpoena and the documents to the counsel for the party who caused the subpoena to be issued. However, the DW1 wrongly turned himself into a witness in the case. See ANATOGU'S case (Supra) at 589 paragraph. In the instant case, the alleged subpoena was not before the court. There was nothing connecting the documents sought to be tendered with the alleged subpoena.
One other remarkable point raised by the learned silk, is that the documents sought to be tendered in evidence through DW1 were not specifically pleaded. Therefore, they could not be tendered in evidence. See G.S. PASCUTTO VS. ADECENTRO NIG. LTD. (1997) 11 NWLR (Pt. 529) 467 @ 481 B - C; DR. A.A. NWANFOR ORIZU VS. FRANCIS E.A. ANYA EGBUNAM (1978) 5SC 21 @ 32 lines 13 - 35, 19.
Equally contended, that the document in question sought to be tendered being a public document, must be certified for it to admissible in evidence. See Sections 96, 97 (1)(e)(f); 97 (2)(c); 109(a)(b); 111(1) and 112 of the Evidence Act CAP. 112 volume 8 Laws of the Federation of Nigeria 1990; JACOB A. JOLAYEMI & ORS VS. ALHAJI LAJIOLAOYE & ANOR (1999) 10 NWLR (Pt. 624) 600 @ 615 paragraph H; ERNEST NZEKWU & ORS VS. MADAM CHRISTIANA NZEKWU (1989) 2 NWLR (Pt. 104) 373 @ 404 paragraph G.
That, the said letter dated 24th November, 1990 was inadmissible, thus the lower court was right in rejecting same. See NATIONAL INVESTMENT & PROPERTIES CO. LTD VS. THE THOMPSON ORG. LTD. & ORS (1969) 1 AII NLR 138 @ 142 lines 40 - 143, 5; ILASALI A. RAIMI VS. ALHAJI AKINTOYE (1986)5SC 87 @ 104 lines 20 105.
The said letter dated 24th November, 1990, was allegedly executed on 09/11/90 by the thumb-impression of the illiterate signatories thereto. It was argued that as at 09/11/90, the letter in question (dated 24/11/90) was not in existence.
By paragraph 13 of the Appellants (Defendants) statement of defence, it's clear that the bundle of documents sought to be tendered through the DW2 were neither specifically pleaded nor certified as required under Sections 96, 97(1) (e) (f), 97(2) (c), 109, 111 and 112 of the Evidence Act (Supra). Thus, the lower court was right in rejecting same. The court is urged to so hold.
On Issue No.2, it was submitted, without much ado, that the Appellants were not denied fair hearing in the trial of the case. On the contrary, they were given fair hearing.
The Appellants allegedly applied all sorts of tactics in an attempt to delay determination of the suit. Various instances were given regarding the delay tactics applied by the Appellants at the trial of the case. That on 26/02/97, the suit was adjourned to 14/4/97 for the Appellants to start their defence. Yet, on the said 14/4/97, the Appellants applied for an adjournment which the lower court granted. See page 80 lines 11 to 14; 93 line 9; 94 lines 6 to 10 of the Record.
Again on 12/5/97, the suit was adjourned to 05/6/97, for cross examination of DW3. But on the said date, the Appellants' counsel was absent from court. The case had to be adjourned. On 10/7/97 and 31/7/97, the case came up for confirmation of cross examination, but Appellants' counsel was again absent from court. The case suffered further adjournments to 07/8/97 at the instance of the Appellants' counsel. On the said 07/8/97, the Appellants' counsel's application to withdraw from the case was granted by the lower court.
However, Mr. Egonu, SAN argued to the effect that notwithstanding the fact that the Appellants' counsel was
granted permission to withdraw (from the case) he is still representing the defendants - appellants in this case up till this day. See page 149 lines 24 to 29 and page 151 lines 10 to 41 of the record:
For the above postulation, the learned silk cited and relied upon the case of BOLA TINUBU VS. I.M.B. SECURITIES PLC (2001) 16 NWLR (Pt. 740) 670 @ 707 paragraph E.
Further contended, that the course taken by Appellants and the counsel thereof was merely a strategy in hope of defeating the course of justice. Thus, the lower court was right in refusing the Appellants' application for further adjournment of the case on 7th day of August, 1997, and thereby adjourning the case for Judgment when the Appellants refused to address the court on that day. For the above contention, the learned SAN cited and relied upon - NIGERIAN PORTS AUTHORITY VS. CONSTRUCTION GENERAL FARSURA COGEFAR SPA & ANOR (1974) 12 SC 81 @ 91 lines 21 to 36; E. CHAKA CATTLE RANCH LTD VS. NIG. AGRIC. AND COOPERATIVE BANK LTD. (1998) 4 NWLR (Pt. 547) 526 @ 544 paragraphs E - G; OKON UDO AKPAN VS. THE STATE (1991) 3 NWLR (Pt. 182) 646 @ 662 Para. A; NIGER CONSTR. LTD VS. CHIEF A.O. AKUGBENI (1987) 4 NWLR (Pt. 67) 787 @ 792 para. H; CHIEF N. TONOBA EKARA VS. JOSEPH OKONGOTAKIN (1995) 5 NWLR (Pt. 394) 242 @ 251 - 252 paras H - A.
The case was adjourned by the lower court from the said 07/8/97 to 03/11/97. Yet, the Appellants did nothing. They were not serious in their complaint that they were denied fair hearing in the case. The court was urged upon to hold by the learned silk. On Issue No.3, the learned silk alluded to the testimonies of the PW1, PW2, PW3 & PW4 and DW1, DW2 & DW3, respectively. It was submitted, that as the lower court saw, heard and watched the demeanour of the witnesses when they testified, it was the responsibility of the lower court to make findings of fact on the evidence before it. As such, the lower court is competent to believe or disbelieve a witness or a piece of evidence and to determine the case on the facts found by it. See OYIBO IRIRI & ORD VS. ESE RORAYE ERHURHOBARA & ANOR (1991) 2 NWLR (Pt. 173) 252 @ 265 para. F; 273 para. G.
It was submitted that the lower court rightly and justifiably rejected the bundles of documents sought to be tendered in evidence by DW1. And that, even if the lower court had admitted the bundle of documents in question, they would not have been of any assistance to the Appellants. The reason being that (i) the letter in question (dated 24/11/90) was not read over and interpreted to H.H. Onihe Ofulue Olisa (an illiterate), and that the letter was not in existence on 09/11/90. (ii) the said letter did not comply with the provisions of Sections 2 and 6(1) of the Illiterates Protections Act CAP. 513 Laws of the Federation of Nigeria, 1990; and that (iii) the documents allegedly attached to the affidavits do not bear the certificate of the Registrar of the lower court, to show they were so attached.
Equally contended, that from the evidence of PW3 & DW2, the evidence of Oko-Amakom, Oko-Anala, Oko-Ogbele and Umuoko is an established fact. There was no dispute that Udeaja founded Oko-Anala, Oko-Ogbele and Umuoko. On the whole, the court has been urged upon to dismiss the appeal, and accordingly affirm the Judgment of the lower court.
Having accorded critical, albeit dispassionate, consideration upon the far-reaching submissions of the learned senior counsel, I am of the firm view that the issues raised in the respective briefs of argument thereof are not mutually exclusive. I am of the considered opinion that the four issues raised in the Appellants' brief are apt for the determination of the appeal. It's, therefore, my privilege to adopt the said issues for the determination of the appeal. However, of the four issues raised in the Appellants' brief in question, the fourth issue deals with the fundamental question of denial (breach of) the right to fair hearing. Thus, it ought to be accorded priority and determined first and foremost.
ISSUE NO. (IV):
As copiously alluded to above, the fourth issue raises the fundamental question of whether or not the Appellant (Defendants) were deprived of their respective right to fair hearing when the lower court refused to adjourn the matter to enable them instruct another counsel to present their address. The said fourth issue was argued at pages 9 of the Appellants' extant Amended brief. Correlatively, the Respondents' issue No. 2, argued at pages 10 - 16 of the brief thereof, equally raises the question of denial or otherwise of the Appellants' right to fair hearing.
Now, the starting point is the Record of Appeal alluded to by the learned senior counsel in the respective briefs thereof. Most instructively, it's evident from the Record (especially at pages 113G - 114), that when the case came up at the lower court on 07/8/97 for continuation of hearing, Emodi, Esq. the erstwhile counsel for the Defendants (now Appellants), orally applied to withdraw (his appearance) from the case. Indeed, that application was granted by the lower court. For the record, I have deemed it expedient to reproduce in verbatim proceedings of the lower court, especially at pages 113G to 114 of the Record, thus:
BEFORE THE HONOURABLE JUSTICE M.C.U. ODITA - JUDGE
ON THURSDAY THE 7TH DAY OF AUGUST, 1977
SUIT NO. A/147/97
CHIEF NWANOLUE IWEZE & 4 ORS. : PLAINTIFFS
CHIEF UGBOLU OPENE & 3 ORS. : DEFENDANTS
3rd plaintiff present.
2nd plaintiff absent.
1st and 4th plaintiffs reported dead.
3rd and 4th Defendants present.
1st Defendant reported sick.
G.R.I. EGONU SAN for the plaintiffs with him D.I. Umeji.
A.O. Emodi for the Defendants.
MR. EMODI applies to withdraw from the case. Says he has informed his clients and they agreed.
COURT: informed the Defendants that their counsel Mr Emodi wants to withdraw from the case. Defendants agreed that Mr. Emodi should withdraw from representing them in this suit.
COURT: Mr. Emodi is permitted to withdraw from representing the Defendants in this case.
From the above record, it's obvious that the lower court, having expressly ruled granting Mr. Emodi's oral application to withdraw from the case, the Appellants (Defendants) no longer had a counsel to defend them from that very moment. Not surprisingly, the Appellants (Defendants) applied
"for an adjournment to consult another counsel. (Page 114, lines 4-5, Record).
Mr. Egonu, SAN, in his own wisdom, vehemently objected to the Appellants' application for adjournment on the grounds, inter alia, that to grant the adjournment would be akin to "continue delaying the continuation of this matter"; (ii) that on 31/7/97, the Appellants refused to produce DW3 for continuation of cross-examination; (iii) on 05/6/97, Mr. Emodi wrote to the court that he was indisposed; (iv) on 10/7/97, Mr. Emodi again wrote to say that he was indisposed, when he was actually before the Court of Appeal Lagos on that day; (v) on 31/7/97, the said Mr. Emodi was again unable to produce the DW3 for cross-examination, thus he closed his case; (vi) on 05/8/97, Mr. Emodi filed a motion for stay of proceedings of the case, regarding an interlocutory appeal filed on 23/5/97 against a ruling of 12/5/97. Thus, according to Egonu, SAN -
"Interest of justice is for the court and the parties. None of the parties should be allowed to toil with the administration of justice. Urges court to refuse the application."
Hence, it was against the background of Mr. Egonu, SAN's strenuous objection that the lower court ruled, thus:
"COURT: It is very clear that this is an attempt to play games to this court. I shall not allow this (sic). The application for adjournment is hereby refused." See page 115 lines 1 - 12 of the Record.
Most interestingly, the above ruling refusing an adjournment to enable the Appellants brief another counsel resulted in the unfolding of a very dramatic scenario, as evidenced by the Record at page 115, lines 13 - 24, thus -
COURT: To motion. Defendants say they cannot move the motion.
MR. EGONU SAN: Urges court to strike out the motion.
COURT: Motion struck out.
COURT: It is now for address.
DEFENDANTS: Says (sic) they cannot address.
MR. EGONU SAN: Says this case is for address. Says since the Defendants are not addressing, says matter is purely on facts. He leaves it to the court.
COURT: Judgment reserved until 3/11/97.
MCU ODITA, JUDGE
Not unexpectedly, the vexed Judgment was indeed delivered by the lower court on the 03/11/97 in question.
Instructively, the question raised in the instant fourth issue brings to focus the somewhat notorious problem that generally confronts courts, most especially trial courts, in this country that are required to grant (or refuse) applications for adjournments in the face of numerous previous adjournments. Undoubtedly, an adjournment, in any given matter, is subject to the discretionary power of the court; be it trial or appellate. However, like in all cases of discretionary powers, the power to grant or refuse an application must be exercised not only judicially, but equally judiciously. Thus, it must be granted or refused in the interest of justice, taking into account the interest of the respective parties and the court. This is so, because the exercising of the discretionary power is fundamentally predicated upon peculiar circumstances of every given case. As emphatically reiterated by this court
There is no hard and fast rule on one matter which involves the court in the balancing exercise which is a pre-requisite to the attainment of justice. The test for granting or refusing an application for adjournment in that the courts discretionary power in such circumstances must be seen to be judicially and judiciously exercised. See OLORI MOTORS & CO LTD VS. UBN LTD (1998) 6 NWLR (Pt. 554) 493 @ 5030. Paragraphs C - F per Achike, JCA (of blessed memory, as he then was). In the instant case, as copiously alluded to above, it's evident from the Record that the main reason for the lower court's decision to refuse the Appellants' application for the adjournment of the case in question was predicated upon delays allegedly occasioned by several adjournments at the instances of the Appellants' erstwhile counsel, Mr. Emodi. Yet, the trite fundamental principle guiding grant or refusal of adjournment is not merely borne out of the sheer number of previous adjournments. Indeed, it's a settled principle, that
It is not the number of previous adjournments sought and granted that will necessarily influence the court's discretion to grant or refuse an application for adjournment, rather, it is for a good cause as well as cogent and weighty ground or reason. See OLORI MOTORS& CO. LTD VS. UBN LTD (Supra) @ 504 paragraphs D - E per Achike JCA (as he then was).
It's so obviously on record in the present case, that the lower court has failed to exercise the discretionary power thereof, in refusing the application for an adjournment, judiciously. As aptly postulated by the Appellants' senior counsel
"having allowed the defence counsel to withdraw, it was precipitate and erroneous for the court to shut out the Appellants from addressing ..."
"a new counsel taking over from an existing counsel needed to study the proceedings to enable him prepare an address, how much the Appellants herein who are villagers".
I think, I cannot agree more with the above apt submission of the learned silk.
I am not unmindful of Mr. Egonu, SAN's submission at page 11, paragraph 4.2.2 of the brief thereof, to the effect, inter alia, thus:
From what happened in the proceedings as set out in paragraph 4.2.1. of this brief and herein before there cannot be any doubt that the agreement between the defendants - appellants and their counsel for him to apply to withdraw from the case on the 7th day of August 1997, instead of proceeding with his address was a ploy by the defendants - appellants to delay and frustrate the hearing and determination of the suit.
... counsel for the defendants - appellants who applied to withdraw from the case on the 7th day of August, 1997, and was granted permission to withdraw, is still representing the defendants - appellants in this case up till this case.
In support of the above submission, the learned SAN, cited and relied upon the case of BOLA TINUBU VS. IMB SECURITIES PLC (2001) 16 NWLR (Pt. 740) 670 @ 707 letter (paragraph) E. It's needless to state, that I have had the privilege of according a far-reaching consideration upon the TINUBU'S case (Supra) and other authorities referred to by the learned counsel in the respective briefs thereof. The sole issue that came up for determination in TINUBU's case (Supra) is to the effect, thus:
Whether having regard to the provisions of Section 308 (1) (a) of the Constitution of the Federal Republic of Nigeria1999, the Court of Appeal was right in declining to entertain the appeal of the appellant pending before it until the appellant vacated his office as the Governor of Lagos State.
In TINUBU's case (Supra), the Respondent, vide a Writ of Summons filed on 26/11/92, sued the Appellant and 2 others at the Lagos High Court. On 27/01/99, the Appellant applied to the trial court for an order to set aside the service of the said Writ of Summons and Statement of Claim served on him on 20/01/94 after the expiration of the 12 months life span of the Writ.
On 17/6/94, the trial court granted the Respondents' prayer, extending the life span of the Writ of Summons in question by a further period of 6 months, and the service on Appellant on 20/01/94 was deemed good and proper service. Dissatisfied with the trial court's decision, the Appellant appealed to the Court of Appeal.
Interestingly, while the appeal was pending in the Court of Appeal, the Appellant contested and won election to the office of Governor of Lagos State and was accordingly sworn in a Governor on 29/5/99. On 01/12/99, when the appeal was listed for hearing, Respondent applied for the adjournment of the appeal sine die until the Appellant would cease to hold office as Governor, by virtue of the provisions of Section 308 (1) (a) of the 1999 Constitution. Consequent upon the hearing of arguments of the respective parties, the Court of Appeal granted the Respondents' application, and accordingly adjourned the appeal, sine die, until the Appellant shall have vacated the office of Governor of Lagos State. Again, the appeal was dismissed. Thus, he appealed to the Supreme Court.
The full court of the Supreme Court unanimously dismissed the appeal, but set aside the consequential order (of adjournment sine die), and substituted with an order striking out the appeal before the Court of Appeal; with liberty to relist same after the Appellant would have vacated office of Governor of Lagos State.
Now, as copiously alluded to above, the Respondents' learned senior counsel has referred to TINUBU's case specifically at page 707, paragraph "E" wherein the Apex Court held, per Karibi - Whyte, JSC, thus:
"It cannot be disputed that hearing an appeal arising out of an action is the continuation of the case. This is whether the appeal is by the person against whom the action was originally instituted or by the originator of the action. Accordingly, the civil action against the appellant cannot in view of the mandatory provisions of Section 308 (1) (a) be continued against him as from the 29th May, 1999 when he was sworn in as the Executive Governor of Lagos State.
Thus, it's rather obvious, that the above holding of the Apex Court has no bearing whatsoever (even by sheer implication) to the issue at stake in the instant appeal. With due respect to the learned SAN, the reference to paragraph E (Letter "E") of page 707 of (2001) 16 NWLR (Pt. 740) in question, (at page 11 paragraph 4.2.2 of the Respondents' brief) is, to say the least, misleading.
In the instant case, it's not in doubt, as copiously alluded to above, that the lower court decided in its own wisdom to deny the Appellants the opportunity they so desperately needed to present their address vide a counsel of choice thereof. Yet, the principle has long been settled, that the right of counsel representing a party in a matter is not merely important but also fundamental to adjudicatory process. Thus, it's not subject to the whims and caprices or discretionary power of a court. In my considered view, the right of counsel to make a final address at the conclusion of a matter is of far-reaching constitutional importance. This is absolutely so, because by virtue of the provisions of Section 294 (1) of the Constitution of the Federal Republic of Nigeria, 1999, as amended, courts are required to accord every opportunity to parties or counsel thereof, to make or submit final address at the conclusion of trial of a matter before delivery of Judgment. See Section 294 (1) of the 1999 Constitution (Supra), 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 furnish all parties to the case or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
In my considered opinion, the phrase - "shall deliver its decision ... after the conclusion of evidence and final addresses", as couched in Section 194 (1) of the 1999 Constitution (Supra) makes it mandatory for the court to accord parties (or counsel thereof), to present final addresses prior to delivery of Judgment or decision of the court; as the word 'shall' contained therein is mandatory.
Inarguably, the extant provisions of Section 294 (1) of the 1999 Constitution (Supra) are in pari materia with the provisions of Section 258 (1) of the defunct Constitution of the Federal Republic of Nigeria, 1979. Most interestingly, the provisions of Section 258 (1) of the defunct 1979 Constitution had been subject to interpretation in a plethora of authorities of both the Supreme Court and this court. See OBODO VS. OHOMU (1987) 3 NWLR (Pt. 59) 111; NDU VS. STATE (1990) 7 NWLR (Pt. 164) 550; SALAMI VS. ODOGWU (1991) 2 NWLR (Pt. 173) 291; AMOUGH VS. ZAKI (1998) 3 NWLR (Pt. 542) 483, respectively.
In the latter case of AMOUGH VS. ZAKI (Supra), most particularly, this court was reported to have aptly held at page 492 paragraphs D - E, thus:
The hearing of addresses by every court established by the constitution is of constitutional importance. This is so by virtue of Section 258(1) of the 1979 Constitution which stipulates that addresses are to be delivered before Judgment is delivered. Thus, when the right of address exists, a party must be accorded the right, for the denial of it may render the entire proceedings a nullity if a miscarriage of justice is thereof occasioned.
Thus, it's no longer in doubt, that where a court fails to accord a party to present his final address in contravention of the provisions of Section 294(1) of the 1999 Constitution (Supra) as in the instant case, any Judgment or decision arrived at thereafter, will tantamount to a denial (breach) of the fundamental right to fair hearing, as cherishingly enshrined in Section 36(1) of the 1999 Constitution. And such Judgment or decision thereby reached in breach of the aforesaid Sections 36(1) and 294(1) of the 1999 Constitution, is null and void, thus liable to be vitiated (set aside). See SALAMI VS. ODOGWU (1991) 2 NWLR (Pt. 173) 291; AMOUGH VS. ZAKI (Supra) @ 490 paragraphs G - H.
Characteristically, a party's right to fair hearing is of fundamental and constitutional significance, thus cannot be compromised or whittled down by the court for whatever reason. Thus, as cherishingly enshrined in Section 36 of the 1999 Constitution (Supra) et al, the fundamental right to fair hearing is sacrosanct. Thus, any decision of court thereby reached consequent upon breach or denial of fair hearing tantamount to a nullity, thus liable to be set aside. As aptly held by the Supreme Court
A hearing cannot be said to be fair if any of the parties is refused hearing or denied the opportunity to be heard or to present his case... Any Judgment or ruling based on a breach of the Constitution will not be allowed to stand on appeal. See FBN PLC 15 NWLR (Pt. 1216) 247 @ 303 paragraphs A - H.
Thus, flowing from the above dictum of the Apex Court, a hearing can only be seen to be fair indeed when all parties to the dispute are accorded an adequate opportunity of a fair hearing. As such, if one of the parties is denied an opportunity of hearing, the hearing (of the matter) cannot in any way be qualified as fair; denial of fair hearing is undoubtedly antithetical to the well cherished indomitable principles of natural justice. See OTAPO VS. (Pt. 58) 587 @ 605; OGUNDOYIN VS ADEYEMI (2001) 13 NWLR (Pt. 730) pg. 403; U.B.A. LTD V. ACHORU (1990) 6 NWLR (Pt. 156) pg. 254; MOHAMMED V. KANO NATIVE AUTHORITY (1968) 1 ALL NLR pg 424; SALU V. EFEBON (1994) 6 NWLR (Pt. 348) pg 23; MOHAMMED V. OLAWUNMI (1990) 2 NWLR (Pt. 133) pg. 458; UNION BANK OF NIGERIA V. NWAOKOLO (1995) 6 NWLR (Pt. 400) pg. 127; BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (Pt. 622) pg. 290; OKAFOR V. A.G., ANAMBRA STATE (1991) 6 NWLR (Pt. 200) pg. 659. See Page 303 - (2010) 15 NWLR (Pt. 1216).Arguably, although the right to present a final address by a party or counsel thereof, is guaranteed under Section 294 (1) of the 1999 Constitution, the party or counsel thereof, is entitled to expressly (or impliedly) waive it. However, in the instant case, as copiously alluded to above, the Appellants had expressly applied for an adjournment to enable them brief a new counsel to prepare and present their (final) address. The lower court, for inexplicable reasons, declined to grant the adjournment that the Appellants so much needed to present their final address. There is every cogent reason to believe that as submitted by the Appellants' learned senior counsel, that the Appellants are illiterates. No reason was also given by Mr. Emodi for his withdrawal from the case in the eleventh hour. Therefore, in the circumstances of the case, the Appellants could not rightly be said to have waived their right of address as cherishingly guaranteed under the unequivocal provision of Section 294(1) of the 1999 Constitution (Supra).
Undoubtedly, in any given criminal trial, as well as in complex civil proceedings (such as the extant case) the participation of a legal practitioner (lawyer) is very essential. This is absolutely so, because the participation of a lawyer is intrinsically connected to the litigant's right to sufficiently prosecute or defend his case. I think it was Lord Denning, MR, that fearless, conscientious and erudite Jurist of all time, who once aptly articulated the trite principle, to the effect that
It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or (even) wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day! A Magistrate says to a man: you can ask any questions you like; whereupon the man immediately starts to make speech. If justice is to be done, he ought to have the help of someone to speak for him; and who better than a lawyer who has been trained for the task? See PETT VS. GREY HOUND RACING ASSOCIATION (NO. 1) (1968) 2 ALL ER 545 @ 549, per Lord Denning MR.
Indeed, it is axiomatic, that what actually makes the participation of a lawyer in a case so vital if not indispensible, is his expertise, which is predicated upon a vast knowledge of the law; his remarkable ability to apply that knowledge to given fact situations; to sift relevant admissible and often very complex evidence from what is relevant and inadmissible; and most significantly, his eloquence - skills in argumentation and power of persuasion. Indeed, it was Lord Simon, who had once cited (with approval) Dr. Johnson's legendary observation in 5 BOSWELL'S LIFE OF JOHN (BIRBECK HILL Edition) 26, thus:
As it rarely happens that a man is fit to plead his own cause, lawyers are a class of the community, who by study and experience, have acquired the art and power of arranging evidence, and of applying to the points at issue what the law has settled. A lawyer is to for his client all that his client might fairly do for himself if he could. See WAUGH VS. BRITISH RAILS BOARD (1979) 2 ALL E.R. 1169 @ 1176. See also Section 36(1) & (5) 1999 Constitution (Supra); Article 14(3)(d) of the International Covenant on Civil and Political Rights; Article 7(i)(c) of the African Charter on Human and Peoples Rights; Article 8(2)(d) of the American Convention on Human Rights; Article 6(3)(c) of the European Convention for the Protection of Human Rights and Fundamental Rights.
In the circumstance, the answer to the fourth issue ought to be in the positive, and same is hereby resolved in favour of the Appellants.
Hence, in the light of the determination of the fourth issue in favour of the Appellants, there is every cogent reason for me to hold, at this material point in time that it would amount to a sheer wasteful academic exercise to proceed to determine the remaining three issues on the merits. As extensively alluded to above, the fourth issue has raised a very fundamentally crucial question of constitutional significance, as cherishingly enshrined in Sections 36(1) & 294(1) of the 1999 Constitution, as amended. Thus, having determined the said fourth issue, to the effect that the Appellants' right to fair hearing has been wantonly denied (breached) by the lower court, the Judgment delivered on 03/11/97 is most inevitably a nullity, thus ought to be set aside by this court. And I so hold.
Thus, having satisfied myself that this appeal succeeds on the fourth issue alone, it's hereby allowed by me. The Judgment of the lower court, delivered on November 3, 1997 by M.C.U. Odita, J; in the said Suit No. A/147/194, is hereby set aside.
Having amply considered the circumstances of this appeal, as a whole, I have deemed it imperative to make the following consequential orders -
1. That the Suit No. A/147/94: CHIEF NWANOLUE CHARLES IWEZE & 4 ORS VS. CHIEF UGBOLU OPENE & 3 ORS, is hereby remitted to the High Court of Justice, Delta State, Asaba, for reassignment by the Chief Judge to another Judge for hearing de novo.
2. The Appellants are hereby awarded costs of N50, 000.00 against the Respondents.
AYOBODE OLUJIMI LOKULO-SODIPO, J.C.A.:
I have had the privilege of reading in draft the lead judgment prepared by my learned brother IBRAHIM MOHAMMED MUSA SAULAWA, JCA. I am in complete agreement with his lordship's reasoning and conclusions therein regarding the issue of "fair hearing" upon which the appeal has been determined.
In the circumstance, I too find the appeal to be meritorious and allow the same. Furthermore, I agree with the consequential order made in the lead judgment as the denial of fair hearing to a party to a case irredeemably afflicts the whole of the case, with the consequence being that a consideration of the correctness of the decision in the case becomes academic as it were. Lastly, I too award costs in the sum of N50,000.00 in favour of the Appellants and against the Respondents.
TOM SHAIBU YAKUBU, J.C.A.:
I had the privilege of having read before now, the draft of the judgment, just rendered by my Lord, Hon. Justice Ibrahim Mohammed M. Saulawa, JCA. I am in complete agreement with his lucid reasoning and conclusion to the effect that this appeal be allowed.
I am adding a few words only in support of the lead judgment, with respect to the all-important issue of fair hearing.
Justice cannot and must not be sacrificed on the altar of speed which will work injustice to a party in the action. This was why this court in Ashiru vs. Ayoade (2006) 6 NWLR (Pt.976) 405 at 425 held that:
"While the court must, at all times remain focused at striking a balance between the need for fair hearing and hearing within a reasonable time, the consideration should be the ultimate goal of substantial justice. The demands of quick justice should not be persuaded at the risk of justice."
The court went on to say at page 425, G - H that:
"The courts must balance the need not to delay justice with an important requisite in the administration of justice, non-denial of justice by not refusing adjournment where compensation by way of costs will be adequate and just."
The court also held further at pages 425 - 426, G - A that:
"Delay of justice is bad, but denial of justice is worse and outrageous. The denial inflicts pain, grief, suffering and untold hardship on those who rely on impartial administration of justice."
It is for this and the fuller reasons adumbrated in the lead judgment that I, too allow the appeal.
I, abide by the consequential order including that of costs contained in the lead judgment, accordingly.