Adamu Garin Buzu V. Garba Garabi (2000)

LawGlobal-Hub Lead Judgment Report

UMOREN, J.C.A.

This is an appeal against the decision of the High Court of Justice, Yobe State, sitting in its appellate jurisdiction Coram Hon. Justice B. S. Gujba Ali Garba delivered on 23rd December, 1996. The respondent as plaintiff instituted an action against the appellant as the defendant before the Area Court, Nangere claiming a farmland, which he alleged “has been in his possession for forty years”.

The Trial Area Court entered judgment for the respondent. Appellant being dissatisfied with the decision of the trial Area Court, appealed against the said decision of the Area Court to the Fika Upper Area Court, Potiskurn. The Upper Area Court after hearing the appellant reversed the decision of the Area Court and entered judgment for the appellant.

The respondent now dissatisfied with the decision of the Upper Area Court Fika, appealed to the High Court of Justice of Yobe State in its appellate jurisdiction against the decision of the Fika Upper Area Court Potiskum. The High Court of Yobe State in its appellate jurisdiction in its judgment delivered on 23/12/96 allowed the appeal and set aside the decision of Fika Upper Area Court Pokiskum.

Dissatisfied with the decision of that High Court, that the appellant has appealed to this Court of Appeal on the 10th January, 1997, on four grounds of appeal which are set out below:-

GROUND 1

1 The learned Judges of the High Court erred in law when they held inter alia that “In view of the above, we are of the view that the appellant was not given a fair hearing by the Fika Upper Area Court Potiskum” and thereby came to a wrong decision, which led to a miscarriage of justice.

PARTICULARS OF ERROR IN LAW:

1. The Upper Area Court Fika did not deny the respondent the right of fair hearing as wrongly held by the lower court.
2. There were previous adjournments before the Fika Upper Area Court Potiskum at the instance of the respondent.
3. On the date when the matter came up for hearing before the Upper Area Court Potiskum, the respondent did not appear in court in spite of the fact that he was aware that the matter was adjourned against that date and there was no reason for his absence in court
4. The lower court was therefore wrong when it held that the respondent was denied the right of fair hearing by the Fika Upper Area court.

Alternatively

GROUND 2

The learned Judges of the High Court of Justice of Yobe-State erred in law when they held that the respondent was denied the right of fair hearing by Fika Upper Area Court Potiskum but did not make an order for retrial.

PARTICULARS OF ERROR IN LAW:

1. Having held that the respondent was denied the right to fair hearing by the Fika Upper Area Court Potiskum the learned Judges ought to have remitted the case back to the Upper Area Court for a re-trial.

GROUND 3

The learned Judges of the lower court erred in law when having held inter alia “on this ground of appeal we agree with the learned counsel for the respondent that where a ground of appeal complains of error in law without supplying the particulars of error the ground is incompetent in law. Therefore, there is no need for us to go into it” (page 6 of the record of proceedings of the lower court) and yet held at page 7 of its judgment thus, “Also by Order 2 Rule 8 after the appellant has complied with the requirements under order 2 Rules 1, 2 and 3 then fix a date for hearing of the appeal after the respondent was duly (sic) served with the notice and grounds of appeal by the appellant. All the above requirements of the law were not complied with by both the respondent and the lower court”.

(Italics mine)

PARTICULARS OF ERROR IN LAW

1. Respondent complain under ground 2 of the grounds of appeal in the lower court was that there were no proper grounds of appeal filed before the Fika Upper Area Court.
2. Respondent did not give particulars of error in law he alleges under this ground.
3. The lower court held that ground 2 is incompetent.
4. The lower court considered in essence ground 2 at page 7 of its judgment the same ground it had earlier held to be incompetent.
5. Respondent complain under ground 3 of his grounds of appeal in the lower court was that the Fika Upper Area Court erred in law when it applied section 3(1) of the Civil Procedure Rules a non existent law and not that no proper grounds of appeal were filed before the lower court.
6. The lower court therefore considered an issue not covered under ground 3 of the grounds of appeal.

GROUND 4

The learned Judges erred in law when they held that “considering above law and the decided case we hold the view that the slip in the judgment of the Upper Area Court is substantial (sic) and occasioned a miscarriage of justice”.

PARTICULARS OF ERROR IN LAW

1. The Upper Area Court Judge referred to a wrong section of the Area Court Civil Procedure Rules 1970.
2. Under order 9 Rule 3 (1) of the Area Court civil procedure rules 1970, the Upper Area Court was right in hearing the appeal in the absence of the respondent.
3. The error by the Upper Area Court Fika in referring to a wrong section of the Area Court Civil Procedure Rules 1970 is not substantial and did not occasion any miscarriage of justice”.

The appellant formulated four issues for determination distilled from the four grounds of appeal. The four issues were related to the four grounds of appeal Viz:

Issue 1 to ground 1

Issue 2 to ground 2

Issue 3 to ground 3, and

Issue 4 to ground 4

1. Whether the learned Judges of the lower court were right when they held that the respondent was denied the right of fair hearing by the Fika Upper Area Court Potiskum?

(Ground 1 of the notice of Appeal)

Alternatively

2. Whether having held that the respondent was denied the right of fair hearing, the learned Judges ought not to have made an order remitting the case back to the Upper Area Court for rehearing?.

(Ground 2 of the notice of appeal)

3. Whether or not the lower court was right in considering ground 2 of the respondent’s ground of appeal, which it had earlier held to be incompetent?.

(Ground 3 of the notice of appeal)

4. Whether the learned Judges of the Lower Court were right in holding that the mistake of the Upper Area Court Judge in referring to a wrong section of the Area Court Civil Procedure Rules 1970 occasioned a miscarriage of justice to the respondent?.

(Ground 4 of the notice of appeal.)

The respondent on the other hand formulated three issues for determination as set out hereafter:-

“(1) Whether the learned Judges of the Lower Court were right having held that there was a denial of fair hearing were bound to order a retrial?.

(2) Whether the lower court allowed the appeal on other grounds other than on ground 2 of the Respondent’s ground of appeal at the lower court?.

(3) Whether or not the learned Judges of the Lower Court were right when they held that a reference to a wrong section of the law had occasioned a miscarriage of justice to the respondent?”.

On issue No.1, the appellant traced the chronology of the appeal from the date it came before the Fika Upper Area Court, the various adjournments at the instance of the respondent and the hearing of the case and judgment in the absence of the respondent. On the 16/3/93, when the matter came up before the Area Court both parties were in court but the learned counsel for the respondent was absent. The respondent applied to the court for a last adjournment to enable him bring his counsel to court to do his matter for him. The court obliged and adjourned for hearing to 24/3/93 for the last time. On the 24/3/93, when the case was called, the appellant appeared in obedience to the order of the court, but the respondent and his counsel were absent. There was no excuse for their absence from Court. It was there and then that the court called on the appellant to proceed with his case. The case was heard and judgment entered for the appellant. The appellant further argued that the learned Judges of the High court sitting in their appellate jurisdiction held that the respondent was not given a fair hearing by the Fika Upper Area Court, Potiskum. The learned counsel for the appellant then submitted that, given the facts and circumstances of this case, it cannot be rightly said that the Upper Area Court denied the respondent the right to be heard, for it was the respondent who without any reason decided to stay away from court on the day he asked for a last adjournment. He cited and relied on Ijeoma v. State (1990) 6NWLR (Pt. 158) 567 at 581. Learned counsel contended that, it was not the business of the Upper Area Court that the respondent refused to avail himself of the opportunity of being heard. He also cited the case of A.I.G Ltd v. Mannesmann – Anlagendan A.G. (1994) 3 NWLR (Pt.334) 596 at 604. He submitted that respondent cannot be heard to complain of not being given the right to fair hearing.

The respondent on the other hand anchored his argument on this issue on S.33 (1) and (2) of the 1979 Constitution of Nigeria as amended which enshrines fair hearing into the Lex Suprema of our legal order. This section of the Constitution guarantees fair hearing for anyone in pursuit of his claim before any court. Learned counsel by implication agreed with the appellant’s counsel that on 10/12/92 when the case came up before the Upper Area Court the respondent was present in court but his lawyer was absent. On 16/12/92, the appellant appeared, the respondent also appeared but his counsel was absent. The respondent asked for an adjournment once more to enable his counsel appear in court. On 16/3/93, for the same reason, the matter was again adjourned to enable the respondent meet his counsel in Maiduguri. The matter was again adjourned to the 24/3/93 at the instance of the respondent. He never indicated he would do his case himself. On the 24/3/93, the appellant was in court but the respondent who asked for this date, as a last adjournment and his counsel were absent. As was agreed, the court proceeded with the trial and gave judgment.

The respondent in his second paragraph is questioning the order of the appellate High Court for a new trial. The respondent did not cross-appeal. It is therefore curious why on the one hand he defends the decision of the appellate court and on the other hand, he questions that same court’s decision. Moreover, the issue of retrial did not arise out of the ground of appeal to which this issue is related. I will ignore that part of the argument, as it is a waste of judicial time. The respondent did not also relate his issues to the grounds filed by the plaintiff. His argument of this part of his issue confirms to me that he deliberately refused/neglected appearing in court in order not to give the appellant the opportunity of making up his case. This hide and seek attitude is very unbecoming of a lawyer who is a Minister of Justice at the temple of justice.

On this issue, there is consensus that:-

1. The appeal came before the Fika Upper Area Court for the first time on 2/12/92. The respondent was in court as well as the appellant but the respondent’s counsel was absent. At the instance of the respondent, the case was adjourned to 10/12/92
2. On 10/12/92, the appellant was in court in obedience to the order of the court but the respondent and his counsel were absent. No reason was given for their absence. The court consequently suo motu adjourned the case to 16/12/92
3. On 16/12/92, both the appellant and the respondent were in court, but the respondent’s counsel was absent. The respondent asked for an adjournment to enable his counsel to appear. He also asked the court to continue with the matter, should his counsel fail to appear on the next adjourned date. The case was adjourned to 16/3/93.
4. On 16/3/93, both parties were in court but the respondent’s counsel was absent as usual. The respondent again asked for a last adjournment. The court acceded to the respondent’s request and adjourned the case to 24/3/93.
5. On 24/3/93, the case was called and the appellant was in court in obedience to the order of the court, but the respondent and his counsel were absent without explanation.
6. The court therefore called on the appellant to present his case. The case was heard and judgment entered for the appellant.
7. Aggrieved by the decision of the Upper Area Court, the appellant appealed to the High Court in its appellate jurisdiction. The appellate High Court set aside the decision of the Upper Area Court Fika. The appellant has now come to this Court.

In its judgment, the appellate High Court based its decision to allow the appeal purely on absence of fair hearing. Further, the appellate court has this to say:

“In the appeal before us, it is true that the Upper Area Court Judge adjourned the case several times on the request or the application of the respondent, but through all the adjournments, the respondent (apparently in this Court) did not present his case. It was on the 24th March, 1993 when the appellant was not in court, the respondent presented his case and the Upper Area Court Judge entered judgment against the appellant there and then…A hearing can only be fair when all parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as fair hearing…”

When I read the reasoning of the appellate Judges of the appellate High Court, Damaturu, the first thing that struck me was the disarray in the Judges’ reasoning. They held:-

“(1) That the respondent in the Upper Area Court were not given a fair hearing; and

(2) That the parties to the dispute were not given an opportunity of a fair hearing”.

They held that the Upper Area Court refused the respondent in the Upper Area Court an opportunity of being heard and such a hearing cannot qualify for a fair hearing. It is my respectful view that learned appellate Judges either misconstrued facts as they appear in the record of appeal or were not properly addressed by counsel to be seized of the implication of fair hearing as they appear to deal with what the appellant in the Upper Area Court did not do rather than what the court failed to do properly which form the corner stone of an appeal.

Fair Hearing as I know it is as old as the world itself.

“I think the reasoning of this court on fair hearing, is also not only in accord with the law over the ages but agrees with common sense…” Per Eso, J.S.C. in F.C.S.C. v. Laoye (1989) 2 NWLR (Pt.106) 652 at 681.

“Audi Alteram Partein means please hear the other side” Per Eso, J.S.C. in Akande v. State (1988) 3 NWLR (pt.85) 681 at 960

“Natural Justice demands that a party must be heard before the case against him is determined. Even God gave Adam an oral hearing despite the evidence supplied by his act of covering his nakedness, before the case against his continued stay in the Garden of Eden was determined…” Per Eso, J.S.C. in Adigun v. A-G. Oyo State (1987) 1 NWLR (pt.53) 678 at 721.

We can continue to cite a plethora of authorities on Fair Hearing i.e that parties to a dispute must be heard OR GIVEN A CHANCE TO BE HEARD.

What is the position of the law where a party refuses, neglects or fails to avail himself for purposes of being heard? Can the court continue to adjourn his case and keep it on the court’s record indefinitely against the backdrop of the rule “Interest reipublicae ut sit finis litigum?”.

It is on record as I have set out above that the respondent in the Upper Area Court and/or his counsel was not appearing before the court in utter disobedience to the order of that court. At the instance of the respondent, the case was adjourned on five occasions. No reason was offered for the absence.

Can one say, in all honesty, that in those circumstances, the respondent was not given an opportunity to be heard? I have always thought that fair hearing implies hearing the parties to a suit or giving them an opportunity to be heard. In Kotoye v. C.B.N (1989) 1 NWLR (pt.98) 419: Ruling 20, it was held that the rule of fair hearing is not a technical one. It is one of substance, the question is not whether injustice had been done because of lack of hearing. It is whether a party entitled to be heard before deciding his case had in fact been given the opportunity of a hearing. (Italizing is for emphasis).

Fair hearing as compassed in Section 33 of the 1979 Constitution is not an imaginary proposition; it is a State of Affairs that consists of many ingredients. Fair hearing under S.33 of the 1979 Constitution entrenched fundamental right. It encompasses not only compliance with rules of natural justice:- Audi Alteram Partem; and Nemo Judex in causa sua – but entails compliance with all provision of S. 33 of the 1979 Constitution. It also entails doing during the causes of trial whether civil or criminal trial all the things which will make an impartial observer leaving the court room to believe that the trial has been balanced and fair to both ides to the trial. As stated by Nnaemeka – Agu, J.S.C in Kim v. State (1992) 4 WLR (Pt.233) 17 at 37 paragraph D-F

“Human rights in our written constitution mark a standard of behaviour which we share with all civilized countries of the World. Since the United Nations Universal Declaration of Human Rights in 1948, though it is still left for various member nations to determine which rights from the plethora of rights then declared,they could wish to incorporate into their Domestic Laws, once incorporated, their application lose the character of insular isolationism. Rather, they assume a Universal character in their standard of interpretation and application. One of those universal characters of their breach is that, in case of a right to fair hearing, once it is duly established that it has been beached in a judicial proceeding, it vitiates the proceeding. If, therefore, I find that it was been breached in this case, I shall have no alternative but to allow the appeal. See

Michael Udo Udo v The State (1988) 3 NWLR (Pt.82) 316.

Gales Hired v. The King (1944) A.C. 149

Dixon Gokpa v. I.G.P (1961) All NLR 423

R. v. Mary Kingston 32 C.A.pp. R. 183 (Pt.1) 125.

Godwin Josiah v. The State (1985) 1 NWLR (Pt.1) 125.”

A fair hearing in this respect compendiates not only compliance with natural justice – audi alteram partem and nemo judex in causa sua. It entails complying with all the provisions of that section of the constitution. It also entails, doing, in the course of the trial, all things, which will make an impartial observer-leaving court room to believe that the trial has been balanced and fair to both parties to the trial.

The question then is whether the trial in the Upper Area Court in this case conformed to the above standard, namely:-

“That the respondent in that court and/or his counsel knowingly and without any justification absented themselves from court on adjourned dates even though all the adjournments except one were at their instance”.

I am unable to find in law any power given to a court to drag a reluctant party or his counsel to court in order to be heard. And going to his house to hear him would rob the court of the appearance to avoid injustice. They were absent from court on five occasions the case was adjourned.

To my mind and in keeping with the rules of Court, a chain of decided authorities and the analysis above, the appellate High Court was in serious error to have held that the respondent in the Upper Area Court was not given a fair hearing. In my very humble view, this issue has merit and I would and hereby allow the appeal on this issue.

Issue No. 2 was argued in alternative to issue one. Having held as I did that issue No.1. sustain the appeal, it will serve no useful purpose to go into issue No. 2.

On issue No. 3 the said issue is reproduced above. It speaks for itself. The appellant pointed out that this ground of appeal in the Court below was ground 2 of the grounds of appeal therein. The appellate High Court held at page 28 Lines 1-5 of the record as follows:-

“On this ground of appeal we agree with the learned counsel for the respondent that where a ground of appeal complains of error in law without supplying the particulars of the error the ground is incompetent in law. Therefore, there is no need for us to go into it”.

The appellant in this court pointed out that after so holding that the ground of appeal is incompetent; it nonetheless went into it and held at page 29 of the record that the appellant did not comply with the requirement of the law by serving the respondent with notice and grounds of appeal. The learned counsel submitted that the court below cannot approbate and reprobate. After holding that a ground of appeal is incompetent, it cannot entertain complaint under the same ground of appeal.

If the appellate court were a Magistrate’s court, I would not be surprised because it is said that a Magistrate’s Court is a court of surprises. However, this being a High Court where the procedure eliminates areas of surprises, I feel ill at ease to understand the reason for the surprises in this appeal. It is trite law that a ground of appeal that is incompetent robs the court of the jurisdiction to entertain it. What the court should do is to strike it out. I had already made an observation on this argument earlier when I was considering issue No.1. Even if that line of argument as per page 29 line 20 -30 of the record were valid, the mistake is not that of the appellant, but a domestic affair of the registry over which the appellant has no control. An appeal questions the decision of the court but not that of the parties. In Alawode v. Semoh (1959) 4 F.S.C. 27 at 30: In that case, the Federal Supreme Court Per Ademola, F.C.J had this to say.

Once the party has done all that is required of him to commerce an action. “Whatever delay is occasioned before the issue of the writ is a matter not within the power of the plaintiff to control but merely a domestic affair of the court for which the plaintiff cannot be penalised.”

On issue No. 4, the appellant submits that it is not every error in judgment that will automatically lead to the reversal of the judgment on appeal. To ground a reversal of the judgment, the error must be substantial and must lead to a miscarriage of justice. Learned counsel cited Anyanwu v. Mbara (1992) 6 SCNJ 22 at 33. Oseni v. Dawodu (1994) 4 NWLR(Pt. 339) 390 at 404

Learned counsel concedes that the Upper Area Court, manned by laymen, referred to a wrong section of the Court Procedure Rules 1970 i.e S. 3(1). He submitted that, there is the correct law in existence and that is Order 9; 3(1) of the Area Court Civil Procedure Rules 1971. So that the appellate High Court was in serious error when it reversed the decision of the Upper Area Court on this ground. He cited Nwanezie v. Idris (1993) 3 SCNJ 139 at 154, S. 61 Area Court Edit 1968. The Respondent contended that appeal at the Upper Area Court is governed by specific rules and failure of the Fika Upper Area court to refer to the relevant portion of the law had occasioned a miscarriage of justice. It is not in dispute that the Upper Area Court cited S.3 (1) of the Upper Area Court Civil Procedure rules which is the wrong rule in support of its judgment.

The relevant question to ask is, Can a court make an order under a rule or law not withstanding the fact that the application to it was made under another statute or rule, which is clearly inapplicable? In my respectful view, if a relief or remedy is provided for by any written law (or by common law or in equity for that matter), that remedy or relief, if properly claimed by the party seeking it, cannot be denied to the applicant simply because he had applied for it under a wrong law. To do so, Fatayi Williams, J.S.C. said in Falobi v. Falobi (1976) 1 NWLR 169, “would be patently unjust”. The objection by the respondent to the order based on order 3(1) of the Upper Area Court Civil Procedure rules 1970, in the particular circumstance of the case in hand, while it appears to be correct, is of a purely technical nature and the appellant; High Court should not have refused to do substantial justice between the parties upon a pure technicality. See G.B. Ollivant v. Vanderpuye (1935) 2 WACA C 369, 370.

There is an existing rule ie S. 3 (1) Upper Area Court Civil Procedure Rule 1971 which we were referred to by the learned counsel for the appellant. In fact, in our hierarchical system of jurisprudence, there is no court rule that does not enjoin a court to enter judgment for the plaintiff if he is in court in obedience to the order of the court but the defendant, without reason, absents himself from court. This is so in our courts and even in the Apex Court on the land.

With the greatest humility this issue succeeds. On the whole, this appeal succeeds and is allowed. The decision of the appellate High Court of Yobe State delivered on 23/12/96 is accordingly set aside and the decision of the Fika Upper Area Court, Potiskum dated 24/3/93 is hereby restored. I assess costs at N4,000.00 in favour of the appellant.

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Other Citations: (2000)LCN/0756(CA)