Edet Udoekong Udofia V. Ekpuk Awak Akpan & Ors (2016)
LawGlobal-Hub Lead Judgment Report
ONYEKACHI AJA OTISI, J.C.A.
This appeal is brought by the Appellant against the judgment of High Court of Akwa Ibom State, Etinan Judicial Division, sitting in its appellate jurisdiction, Coram Honourable Justice U. E. Essang, delivered on April 29, 2010.
The Respondents as plaintiffs had filed a claim in the Customary Court of Asang seeking a declaration that they were entitled to the customary right of occupancy over the piece of land known as “Ndon Awak” situate at Oboyo Ikot Ita within jurisdiction of the Court, N1,000 (One Thousand Naira) damages for trespass and perpetual injunction to restrain the Appellant as defendant from further interference with the said land. The case filed in the Customary Court of Asang, was heard at the Mbioto Customary Court, Etinan. At the hearing, the Respondents herein, plaintiffs therein, called two witnesses while the Appellant herein, as defendant, called two witnesses. At the conclusion of hearing, the Customary Court inspected the land and delivered its judgment in favour of the Respondent, against the Appellant in these terms:
The Plaintiffs have been
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able to prove their case beyond all reasonable doubts, henceforth the disputed land called “Ndon Okon Awak is hereby declared the bonafide property of Plaintiffs as per their claims.
See: page 38 of the Record of Appeal. Dissatisfied with the said judgment of the Mbioto Customary Court, Etinan, the Appellant, as appellant, appealed to the Chief Magistrate Court, Etinan. The said Chief Magistrate Court, Etinan allowed the appeal of the Appellant, appellant therein, against the Customary Court’s decision and dismissed the case of the Respondent, the respondent therein, pages 90 to 122 of the Record of Appeal.
The Respondents then appealed to the Akwa Ibom State High Court, Etinan; which heard the appeal and delivered its judgment, in these terms:
“The reversal of that judgment by the Appellate Chief Magistrate’s Court, Etinan was/is perverse and in error.
All the grounds of appeal argued by the plaintiffs/appellants’ Counsel succeed.
This Court therefore sets aside the judgment of the learned Chief Magistrate’s Court, Etinan delivered on 7/3/2005.
Judgment of the trial Asang District Court of 5/8/99 is hereby affirmed.
Judgment
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for the plaintiff/appellants.”
See: pages 228 to 234 of the Record of Appeal.
Aggrieved by this judgment of the High Court, Etinan sitting in its appellate jurisdiction, the Appellant sought leave of this Court to lodge the instant appeal, which was granted on November 12, 2012; page 236 of the Record of Appeal. The instant appeal was lodged by Notice of Appeal, filed on November 26, 2012 upon five grounds of appeal; pages 237 – 240 of the Record of Appeal.
The parties exchanged Briefs of Arguments. The Appellant’s Brief of Argument was filed on 4/6/2013 but deemed on 12/5/2016. The Respondents filed their Brief of Argument on 23/5/2014 but deemed on 12/5/2016. The Appellant also filed a Reply Brief on 5/6/2014 but deemed on 12/5/2016. These Briefs were adopted on 12/5/2016 by Nta A. Nta, Esq. for the Appellant and by Innih Archibong, Esq. for the Respondents.
The Appellant, out of the five grounds of appeal, formulated four Issues for determination as follows:
(i) Whether or not the learned Appellate Judge was right in considering the judgment of Asang District Court when the said Asang District Court did not hear and determine Suit
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No, ADC/45/98 – Ground One.
(ii) Was the learned Appellate Judge right when he failed to consider, hear and determine the Appeal against the judgment of the learned Chief Magistrate, Etinan setting aside the judgment of Mbioto District Court? – Ground Two
(iii) Was the learned Appellate Judge right when he reversed the judgment of the learned Appellate Magistrate without considering the evidence and record from the Lower Courts? – Ground Three and Four
(iv) Is the weight of evidence in this case not overwhelming weight in favour of the Defendant/Appellant? – Ground Five
The Respondent had raised a Preliminary Objection in the Respondent’s Brief over the issue of leave to appeal, which is now overtaken. The Record of Appeal affirms that the Appellant obtained leave of this Court to institute this appeal on November 12, 2012; page 236 of the Record of Appeal.
The Respondent formulated the following issues:
1) Whether the discrepancy in the description by the Court below of the District Court which heard the case at first instance is sufficient to nullify the decision of the Court below when neither of the parties was thereby misled
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or prejudiced.
2) When the evidence on the record is weighed, whether it does not tilt markedly in favour of the respondents.
The issues formulated by the Respondent are subsumed in the issues as formulated by the Appellant for determination. I shall therefore adopt the issues as formulated by the Appellant, with Issues 1 and 2 determined together.
The learned appellate Judge had in his judgment had held as follows:
“The reversal of that judgment by the Appellate Chief Magistrate?s Court, Etinan was/is perverse and in error.
All the grounds of appeal argued by the plaintiffs/appellants’ counsel succeed.
This Court therefore sets aside the judgment of the learned Chief Magistrate’s Court, Etinan delivered on 7/3/2005.
Judgment of the trial Asang District Court of 5/8/99 is hereby affirmed.
Judgment for the plaintiffs/appellants.”
It was submitted for the Appellant that the appeal before the learned appellate Judge was against the judgment of the learned Chief Magistrate who had allowed the appeal of the Appellant against the judgment of Mbioto District Court and not Asang District Court. That no appeal went from
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Asang District Court to the Etinan High Court for determination. That no matter was properly placed before the appellate Judge from Asang District Court. The learned appellate Judge ought not to have upheld a non-existent appeal. Reliance was placed on Ogugu v. The State (1994) 9 NWLR (Pt. 366) 1 at 48, inter alia, to submit that a Court will not deal with any issue not properly before it.
In their Brief, learned Counsel for the Respondents had no reply to this contention but stated that the Customary Court of Akwa Ibom State, Mbioto District, had sat variously at Asang and Mbioto before it gave judgment on August 5, 1999 in favour of the Respondents against the Appellant. The Record of Appeal as presented by the Appellant indicated that after summons was filed at the Assang District Court the next proceedings were taken before the District Court Mbioto. The Record of Appeal does not explain the discrepancy. The entire trial thereafter was conducted by the Customary Court of Akwa Ibom State, at Mbioto District and judgment delivered thereat. The Record of Appeal does not indicate whether this discrepancy arose as a result of a re-delineation of Customary
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Court Districts based on the creation of Akwa Ibom State in 1987 or the result of an application for transfer by one of the parties.
The matter was commenced by the Respondents’ claim filed before the Customary Court of Akwa Ibom State, In the District Court of Asang, Holden at Asang; page 9 of the Record of Appeal. Hearing and subsequent judgment was delivered by the Mbioto District Court, Etinan, holden at Mbioto 1 in favour of the Respondents, as plaintiffs therein, page 10 of the Record of Appeal. The Record of Appeal actually provided the answer to this perceived quagmire.
In its judgment, the Customary Court recapped the proceedings before it at page 31 of the Record of Appeal as follows:
“Here the Plaintiff tendered exhibit ‘B’ proceedings of Asang District Court … The Plaintiff further stated… He continued the disputed land case then pending at Asang District Court. At Asang District Court they were fined indiscriminately. There and then they filed a mother (sic) for the transfer of the case. The plaintiff further tendered the proceedings of Asang District Court marked Exhibit ‘C’.”
The matter therefore commenced at Asang
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District Court but was transferred upon the application of the Respondents, then plaintiffs, to Mbioto District Court.
The Appellant in his appeal to the Chief Magistrate Court, Etinan, had addressed his Notice and Grounds of Appeal to the “Mbioto District Court, Holden at Assang; page 6 of the Record of Appeal. The appellate lower Court in its judgment below, following the Notice of Appeal before it, described the trial District Court as the Asang District Court. There was no confusion as to which decision was appealed against and heard by the appellate lower Court. The appellate lower Court did not refuse to consider the judgment arising from the Mbioto District Court and did not give judgment over a matter that had not been submitted before it on appeal an examination of the facts as highlighted above will reveal that there was no real confusion leading to a failure to consider the judgment of the District Court on appeal. I would therefore resolve Issues No 1 and No 2 as formulated by the Appellant against him.
?The Record of Appeal at page 38 transcribes the following proceedings at the visit to the locus in quo by the trial District Court:
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“(13) During the land inspection two elderly persons from Oboyo Ikot Ita – Confirmed that Okon Awak (late) lived there and died there, and also described the style of Okan Awak’s house as per Plaintiffs evidence in Court.
(14) During inspection elderly set of people from Oboyo Ikot Ita did confirm the name of the land to be Okon Awak’s land or Ndon Okon Awak.”
The trial District Court then decided:
The Plaintiff have been able to prove their case beyond all reasonable doubts, henceforth the disputed land called “Ndon Okon Awak” is hereby declared the bonafide property of Plaintiff as per their claims.
The Record of Appeal does not indicate that these two elderly persons present at the visit to the locus in quo, whose evidence was accepted and acted upon by the trial District Court were at all cross examined by the parties, especially the Appellant, against whom their evidence was construed. The said elderly witnesses were not called as witnesses by the parties but had apparently been called by the trial District Court. It was contended for the Appellant that the failure to give them the opportunity to cross examine the two elderly witnesses
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was in breach of their right to fair hearing. The learned Chief Magistrate considered and reviewed the evidence of these two persons, who were not witnesses for the parties and found their evidence to be inadmissible. He then allowed the appeal. But the learned appellate Judge restored the judgment of the trial District Court. Learned Counsel for the Appellant submitted that although it was a district Court and not bound by rules of evidence, the parties in the case must be given the opportunity to cross examine any witnesses called. He relied on Azuokwu v. Nwokanma (2005) 11 NWLR (Pt. 937) 537 at 551. Learned Counsel for the Respondents did not respond to these submissions in their Brief.
The right to fair hearing is a fundamental right constitutionally guaranteed by the provisions of Section 36 of the Constitution of the Federal Republic of Nigeria 1999, as amended. Fair hearing according to our law envisages that both parties to a case be given opportunity of presenting their respective cases without let or hindrance from the beginning to the end. Basic attributes of fair hearing include that: the Court shall hear both sides in all material issues in
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the case before reaching a decision which may be prejudicial to any party in the case; and having regard to all circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done; Baba v. Nigerian Civil Aviation (1991) 7 SCNJ 1; Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (pt. 98) 419. Each party has a right to be heard at every material stage of the proceedings, this includes the right to cross examine any witnesses in opposition; Agbahomovo v. Eduyegbe (1999) 3 NWLR (PT 594) 170. Fair hearing lies in the procedure followed in the determination of the case, and not in the correctness of the decision; Victino Fixed Odds Ltd v Ojo (2010) 8 NWLR (PT 1197) 496.
The burden is on the party alleging breach of fair hearing in a case to prove the breach; and he must do so in the light of the facts of the case. It is only the facts of the case that will show non-compliance with the principle of fair hearing; Maikyo v. Itodo (2007) 5 MJSC 60; Bill Construction Ltd v. Imani Ltd (2007) 3 MJSC 217.
The proceedings before the lower Court, already reproduced above, confirms the
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complaint of the Appellant. It is settled that in considering proceedings in Native Courts, the Court should look at the substance of the action and not the form; Chukwueke v. Okoronkwo (1999) 1 S.C.71, (1991) LPELR-857(SC); Chief Asuquo Ekpa & Ors v Chief Etim Akpam Utong & Ors (1991) 7 S.C. (PT 11) 52, (1991) LPELR-1084(SC), but these proceedings cannot be in breach of the constitutional principle of fair hearing. A breach of fair hearing renders the judicial proceedings null and void; Orugbo v. Bulara Una (2002) 9-10 S.C. 61; Agbaeze v Customary Court Item District (2006) LPELR-7684(CA). The decision given in breach of fair hearing cannot be allowed to stand. The decision reached by the trial District Court after hearing the two elderly witnesses which it called at the locus in quo, without giving opportunity for them to be cross examined, especially by the Appellant, against whom their evidence was given, was in breach of fair hearing and cannot be allowed to stand. I therefore resolve Issue No 3 in favour of the Appellant.
?Having adjudged the proceedings before the trial District Court to be null and void, a consideration of the weight of
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evidence adduced before it becomes merely academic and may be prejudicial to any subsequent proceedings arising from the claims herein.
Accordingly, this appeal is meritorious and hereby succeeds. The judgment of High Court of Akwa Ibom State, Etinan Judicial Division, sitting in its appellate jurisdiction, Coram Honourable Justice U. E. Essang, delivered on April 29, 2010 is hereby set aside. The judgment of the learned Chief Magistrate Court, Etinan delivered on 7/3/2005 is hereby affirmed. The judgment of the trial Mbioto Customary Court, Etinan, holden at Mbioto 1, delivered on August 5, 1999 is hereby set aside.
Parties are to bear their costs.
Other Citations: (2016)LCN/8859(CA)
