Chief Musibau Dada & Anor V. Joseph K. Kadiri (2008)
LawGlobal-Hub Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.C.A.
This is an appeal against the interlocutory decision of the Ogun State High Court contained in ruling of Hon. Justice A.A. Akinyemi sitting at Ota Division of the court and delivered on 19th day of January 2006 in suit no. HCT/13/2003. The brief facts of the case from which the appeal arose are supplied hereunder.
The Respondents in this appeal, as plaintiffs at the lower court, took out a writ 15th January, 2003 against the Appellant who was the defendant. Respondent claim was for declaration of title to the land situate off Lagos/Sokoto Road at Ijuri Village near Igbesa in Ogun State which land is more particularly delineated and verged “Green” in the survey plan No, TAA/OG/038/95 dated 10/02/95 and measuring approximately 19.687 acres. Respondents also prayed the court for a N2 Million Naira damages for Appellant’s trespass and an order of perpetual injunction restraining the Appellant, his agents, servants, privies, assigns etc. from further trespass on the same parcel of land.
Pleadings were ordered, filed, exchanged and settled. Respondents’ case against (he Appellant is that the two branches, Olukeye and Kusesi, constituting the Respondents’ family of the Ijuri village sold five acres out of their large expanse of land to the Appellant. This was sometime in 1976. It is Respondents further case that Appellant, rather than restrict himself to the five acres sold to him appropriated Respondents land in excess of the parcel vested in him by virtue of the sale.
Appellant on the other hand denied Respondents entire claim. He also counter claimed that he bought ten and not the five acres averred to by the Respondents in their writ and statement of claim Trial commenced on 31-05-2005 with the Respondents opening their case.
PW1 testified in Chief for the Respondents, PW1 was cross examined by Appellant Counsel. In the course of the cross examination, Appellant’s Counsel sought to tender a receipt in respect of the ten acres of land the Appellant asserted to have bought from Respondents’ family. Counsel to the Respondents objected to the admissibility of the document In evidence on the ground that necessary foundation for its being admitted as required by Section 91 of the Evidence Act had not been laid.
Appellant’s Counsel, without joining issue with respondents’ Counsel on the objection, immediately applied to withdraw the contentious document. The application for the withdrawal of the document was challenged by learned respondents’ Counsel as being belated. The lower court not only refused appellant counsel’s application to withdraw the tendered document but also refused admitting the document in evidence. The document was ordered by the court to be marked ass rejected.
Being dissatisfied with the ruling, the Appellant has appeal against it on three grounds. In keeping with rules of this court, parties have filed and exchanged briefs of argument. At the hearing of the appeal, Counsel adopted and relied on their respective briefs.
A single issue formulated for the determination of the appeal at page 9 of the appellant’s brief reads:-
“whether the rejection by the trial judge of a purchase receipt which is relevant to the appellants case is not premature and wrongful and amounts to an infringement of the rule of audi alteram patem as well as a deprivation of the appellant’s right to fair hearing as enshrined in section 36 of the constitution of the federal republic of Nigeria, 1999”.
The two issues distilled in the respondents’ brief for the determination of the appeal read:-
“(a) Whether the court below was right to have declined the request of the appellant to withdraw the purchase receipt after an application had been made to tender same and an objection had been taken to its admissibility by the respondents’ Counsel:
(b) Whether the Appellant’s right to fair hearing was deprived by the court below when it ruled on the admissibility of the purchase receipt and consequently rejecting same”.
On Appellant’s single issue, Mr. Ojutalayo of Counsel referred to paragraph 6-8 of Appellant’s “mended statement of defence and counter claim where the size and extent of the land in dispute was averred to by the Appellant. Therein, Appellant asserted that he bought 10 acres of land from Respondents’ family.
Receipt NO.260 dated 27th June 1976 evidenced the purchase. A certificate of occupancy was also subsequently acquired in respect of the kind by the Appellant.
The purchase receipt so pleaded, Learned Counsel contended, was relevant and material to Appellant’s defence and counter claim. Appellant’s entire case hinged on the document.
Learned Counsel submitted further that the trial court’s refusal of their application to withdraw the document after Respondents’ objection to its admittance and the court’s rejection of the document without any address by appellant Counsel on the document’s admissibility was a serious error that had caused the Appellant injustice. It is argued that a lawful ruling on the admissibility or otherwise of a document proceeds after the court had received full arguments from Counsel on both sides. The court’s ruling without the argument of Appellant’s Counsel in the instant case constitute a breach of Appellant’s right to fair hearing under section 36 of the 1999 Constitution as the Appellant case in the absence of the purchase receipt had been unjustifiably truncated. Appellant can no longer, on the authority of the decisions in BELLO Vs. GOVERNOR, KOGI STATE (1997) 9 NWLR (Pt. 521) 496 and ITA Vs. EKPEYONG (2001) 1 NWLR (Pt. 695) 587 AT 6n and AGBAJE Vs. ADIGUN (1993) 1 NWLR (Pt.269) 261, make use of the rejected document in prosecuting his case. The trial court’s ruling that had so breached Appellant’s right to fair hearing must, contended Learned Counsel, be set-aside. He relies on the decision of this court in PRINCE FATAI ADELAJA Vs. OTUNBA ADESESAN OGUNTAYO & ORS (2001) 6 NWLR (Pt. 710) 593. Learned Appellant Counsel concluded by urging us to resolve the issue in favour of the Appellant. He asked also that the appeal be allowed.
By way of reply to Appellant Counsel’s arguments, Learned Respondent Counsel argued that a party’s application to withdraw a document tendered to be admitted and which admission into evidence was objected to by the contending party ought to fail as that is what practice and the law provides. Any contrary position, Learned Counsel further argued, would mean allowing the party to withdraw an application that has been argued and opposed to by the Respondent.
The least the court does in such a situation is to strike out the application tendering the document to allow for similar application to be made subsequently. Learned Counsel submitted that in the case at hand Appellant’s application for withdrawal was belated and had the lower court allowed the withdrawal it would have prejudiced the position of the Respondents who had made known the ground of their objection to the admissibility of the document. Counsel further submitted that it is even implicit in this court’s decision, ADELAJA Vs. OGUNTAYO (2001) 6 NWLR (Pt. 710) 593, the Appellant heavily relied upon in his brief that an application for withdrawal such as the Appellant’s cannot be entertained after objection had been taken against the admissibility of the document tendered.
Learned Counsel contended that the appeal in ADELAJA Vs. OGUNTAYO supra was allowed for different reasons and the decision does not govern the present case which evolved from different set of facts, Learned Counsel submitted that the Appellant herein had been given the opportunity of being heard on the question of the admissibility of the document and he should blame himself and not anybody for whatever fortunes that befell him. Counsel relied and commended OJUKWU Vs. NNORUKA (2001) 1 NWLR (Pt. 641) 348 and FOLBOD INVESTMENT LTD. Vs. ALPHA MERCHANT BANK LTD. (1996) 10 NWLR (Pt. 478) 344.
In concluding, Learned Respondent’s Counsel urged us, if we adjudge Appellants right to fair hearing breached, a point which Respondent Counsel vehemently refuted, order that the trial judge from whose ruling the appeal evolved to continue with the case by allowing the Appellant reply on the issue of the admissibility of the document. All the same, Counsel urged that the appeal be dismissed.
The crux of this appeal is about the role of two principles in the adjudication process. The principles the application of which in the matter at hand would determine the appeal are stare decicis and audi alteram partem.
What the principles of stare decicis entails could not have been better put than did Uwaifo JCA (as he then was) in CAMPTEL INT’L SPA VS. DEXSON LTD. (1996) 7 NWLR (Pt. 459) 170 AT 184. Where his lordship inter alia stated thus:-
“..It is a matter of policy that the court appeal should stand by precedent and not disturb settled point of law decided by it. The doctrine thrives on the basis that when the court has at one time laid down a principle of law as applicable to certain state of facts, it will not unsettle that principle but will adhere to it, and apply it to all future cases where the facts are substantially the same, irrespective of whether the parties and subject mailer arc the same. This is because there ought to be certainty in legal principles so that individuals may know how to manage their affairs as regards the requirement of the law. For the court to fail to follow its earlier decision – to refuse to be bound by precedent – can usually be a hard step sometimes fraught with obvious difficult explanations”.
Learned Appellant Counsel’s submission that in determining the appeal this court binds itself to its earlier decision in PRINCE FATAL ADELAJA v. OTUNBA ADESESANOGUNTAVO & ORS supra must be seen in the light of the imperatives of the applicability of the doctrine of stare-decicis, as disarmingly articulated in the above passage. Learned counsel has argued that the facts of the case and the law on the basis of which the decision in the ADELAJA Vs. OGUNTAYO & ORS case was reached are the same as those in the instant case to make the application of the principle enunciated in the earlier case in the resolution of the instant appeal necessary. The lavish reproduction by Learned Appellant Counsel of the relevant part of the decision from pages 615-617 of the law report in fortifying his submissions is overwhelming because of its aptness, The passage reads:-
“Learned Counsel for the Appellant has argued that the learned trial Judge refused to hear counsel for the Appellant before delivering the ruling. I subscribe to this argument because no where in the record of what transpired on the day the ruling was given, (which has already been reproduced above) is it reflected that Learned Counsel for the Appellant was called to be heard on the objection raised by the other Counsel.
In fact he had the opportunity to be heard, only before the document was sought to be marked, for after the objections, he Withdrew the evidence and the witness. When Learned Counsel for the 1st Respondent implored the court that the document be marked rejected, Chief Coker of Counsel for the Appellant said the witness is withdrawn, the document cannot be marked rejected, but he was not called upon to reply to the objection raised by Counsel to the Respondents.
This is reflected in the learned trial judge’s judgment where she said inter alia-
I it is my view that in view of the facts already placed before this court, that Chief Coker had not replied to the objection raised by Learned Counsel for the 1st Defendant does not preclude the
court from making a ruling on the admissibility of the document.
That is a very wrong view, for the principle of fair hearing and audi alteram parent has been violated”. (underlining supplied for emphasis)
Now, what are the facts and the decision arrived in the foregoing? The Appellant in ADELAJA Vs. OGUNTAYO supra, had tendered a document through Counsel not same to be admitted in evidence. Learned Respondents Counsel objected to the admission of the document tendered and urged the trial court to mark the document as rejected. The Court which did not call the Appellant Counsel to address it, by way of reply to Respondent Counsel’s Submissions, as to the admissibility or otherwise of the document proceeded to adjudge the document inadmissible and ordered it been rejected, On appeal, and that is the gist of the foregoing decision per Mukhtar JCA (as he then was), the court held that the procedure adopted by the trial that had violated the principle of fair hearing was wrong.
The Court specifically held as follows:-
When the Respondents gave their reasons for objecting to the admissibility of the document, it was incumbent on the learned judge to hear Appellant’s Counsel’s address on it. Equity and fair play demands that both parties be heard in order to ensure that justice prevails, for in depriving the other side the opportunity of being heard before rejecting the document in totality, a miscarriage of justice has been occasioned.
(underlining supplied for emphasis)
All that the Appellant Counsel is saying in the instant appeal is that this appeal that has evolved on the basis of similar facts as those in the ADELAJA Vs. OGUNTAYO & ORS supra should be decided in the same way this court decided the earlier ease, If indeed the facts in the instant case are same or similar to those pronounced earlier by this court in ADELAJA Vs. OGUNTAYO supra, then Appellant Counsel’s prayer that this appeal be allowed because the procedure adopted by the lower court had breached Appellant’s right to fair hearing and caused miscarriage of justice cannot be lightly refused. See ADIS ABABA Vs. ADEYEMI (1976) 12 SC 51 and OKEKE Vs. OKOLI (2000) 1 NWLR (Pt.642) 641 AT 654. What occurred at the lower court including the procedure resorted to by the court on the relevant occasion are best captured from page 44-46 of the record thus:-
“PW1- called for further cross examination reminded of his oath.
PW1 – cross examined.
When exhibit P1 was issued the secretary of the family was called “Brown” – I never used to call him by name. It was when I became Bale that I now know that he was the family secretary then.
The signatories to exhibit PI never did any writing in my presence to enable me familiar with their handwriting. I am familiar with the official stamp of our family. The stamp on Exhibit PI is the same one our family still uses till date. I have never seen this document now being shown to me. On the date that I was present at the 2nd meeting to which we called Mr. Kadiri, he did not bring any receipt it was the first one which I did not attend that I learnt he brought a receipt to. It is true that the Defendant said he was issued receipt for 10 acres, but what my father told me was that they sale only 5 acres to him as shown In exhibit PI.
Omijeh: Seeks to tender the document shown to the witness which he said he did not know about.
Pinheiro: I object – it cannot be tendered through this witness by notice of Section 91 of Evidence Act.
Omijeh: I seek to withdraw it at this stage.
Pinheiro: Objection has been taken on this document – it can no longer he withdrawn at this state.
Court: The law is that once objection has been taken to a document and argument had on it, it can no longer be withdrawn. If Mr. Omijeh had applied to withdraw the document at the point when Mr. Pinheiro indicated he was objecting it would have been a different case, bill Mr, Pinheiro had
clearly objected that this document cannot in law be admitted through this witness, I believe that it is too late in the day for the document to be withdrawn. I so rule.
On the merits of it – the witness stated very clearly that and I quote him “I have never seen this document shown to me”, That being the case and this being cross-examined holds that thisdocument cannot be tendered through this witness, who failed to identify it and who is not the maker.
Accordingly, the document titled “Olukoye & Kusesi Family dated 27/6/76 is hereby rejected and shall be so marked”. (underlining supplied for emphasis).
A perusal of the foregoing leaves one ill no doubt as to what facts the lower court had to grapple with and the procedure the court employed in handling those facts. Appellant Counsel had tendered a document for same to be admitted in evidence. The document so tendered is a purchase receipt in relation to which Appellant had averred is paragraph 8 of his statement of defence and counter-claim as follows:-
“8. Further to the preceding paragraph, the Defendant says that he is not a trespasser but a bona fide owner of the disputed land by virtue of the purchase receipt No, 260 dated 27/6/76 covering (10) acres of 4.817 hectares of land issued by the said Olukeye and Kusesi family and the certificate of occupancy as particularized above. At the trial; the Defendant shall also rely on the purchase receipt for its full terms and effect”. (underling supplied for emphasis)
Again, it is glaring that Appellant Counsel withdrew the document immediately following the objection expressed by Respondent’s Counsel against the admissibility of the purchase receipt. Without hearing both counsel on whether or not the document was admissible, the court disallowed Appellant Counsel’s application for the withdrawal of the document and proceeded to rule that the document was inadmissible and ordered that it be marked as rejected.
From these facts, I subscribe to Appellant’s Counsel contention that the facts of the instant case are the same as those pronounced upon by this court in ADELAJA Vs. OGUNTAYO supra. We must adjudge this appeal, therefore, in the same way we did the appeal in the earlier case.
Appellant herein whose Counsel was not heard by the lower court as to the admissibility of a document Appellant placed so much reliance on in prosecuting his case has been wrongly disadvantaged. His constitutional right to be heard before the determination of his civil rights and/or obligation has been adversely breached. Failure of the lower court to call on and hear Appellant’s Counsel before totally rejecting the purchase receipt constitute a violent breach of the doctrine of audi alteram patem, and occasioned miscarriage of Justice. One cannot agree more with Appellant’s Counsel that their single issue has to be resolved in their favour with the success of their grounds of appeal. The appeal is resultantly allowed. The ruling of the lower court is hereby set aside. The case is remitted to the Chief Judge of Ogun State for same to be heard denovo and by another judge.
Appellant is entitled to cost of the appeal put at N20,000 against the Respondents.
Other Citations: (2008)LCN/3038(CA)
