Alhaji Saka Falodun V. Sikiru Ogunse & Anr (2009)
LawGlobal-Hub Lead Judgment Report
CHIMA CENTUS NWEZE, J.C.A.
The appellant [plaintiff as he then was] took out an action at the Customary Court sitting at Emure, Ekiti [hereinafter referred to as the court of first instance] against the respondents herein [defendants as they then were]. He made monetary claims against them, jointly and severally, being general and special damages for trespass committed on his farm without his consent.
The court of first instance sat in a collegiate panel of three Judges, viz., the President and two members. The case went to hearing with the full panel. This full panel continued with the hearing of the matter until it was adjourned for further hearing to a later date. However, commencing from January 1, 2000 till the final determination of the case, one of the members no longer took part in the proceedings. In its judgment delivered on December 12, 2000, the court [left with only two members] found for the plaintiff [now appellant].
Sequel to this development, the respondents herein [as appellants] appealed against the said judgment at the High Court of Justice of Ekiti State. On August 1, 2006, the said High Court [hereinafter referred to as the lower court] upturned the judgment of the court of first instance. In its judgment of the said date, the court [coram Abodunde J], not only allowed the appeal, it entered an order for the retrial of the case.
Dissatisfied with the judgment of the lower court which vacated the earlier judgment in his favour, the appellant herein [who was the respondent at the court below] has appealed to this court entreating it to determine the following questions:
Whether evidence that had been declared inadmissible as additional evidence could be said to be prejudicial to the respondents’ case in the same proceedings when there was no evidence of bias in the records of proceedings before the Honourable High Court sitting in its appellate jurisdiction.
Whether the provisions of the Customary Courts, Cap. 33, Laws of Ondo State as applicable to Ekiti State define supervisory authority to include the office of the Deputy Chief Registrar over Emure, Ekiti Customary Court thereby enabling him to order a stay of proceedings of the said court.
Whether, in the circumstances of this case, the appellant who gave evidence of a better title can be deprived of same when the boundary of the land to which his claim relates is clearly ascertainable.
Whether having regard to the totality of the evidence on the record, the appellant is not entitled to judgment.
Upon service on them of the appellant’s brief, the respondents filed their brief on January 1, 2009. They raised one terse issue: “whether the judgment of the trial Customary Court is a nullity”, They subsequently filed a Notice of Intention to contend that the judgment of the lower court [that is, the judgment of the appellate High Court which vacated the earlier judgment of the court of first instance ] should be affirmed on grounds other than those relied on by the court below.
In that notice, which this court deemed properly filed on March 3, 2009, the respondents gave notice that they were going to rely on the following grounds:
(1)The trial Customary Court Judges failed and neglected to adduce reason(s) for (sic) absence of one of its members at all time material to the time when the court delivered its judgment on the 7th day of December, 2000 contrary to the enabling law and Rules of Court;
(2) The trial Customary Court failed to advert its mind to the difference between general and special damages.
As already noted, this court deemed the above Notice of Intention to Contend as properly filed on March 3, 2009. So soon thereafter, the appellant filed an “Appellant’s Reply Brief’; that was on March 5, 2009. In that process, he raised two new issues thus;
Whether by virtue of the Customary Courts Law and Customary Courts Rule, 1980 of Ondo State as applicable to Ekiti State, the lower trial court still have (sic) the jurisdiction and competence in the absence of a member to continue sitting with two members as a properly constituted court.
Whether the award of N4,000.00 damages was within the discretion of the trial customary court.
When this appeal came up for hearing on April 28, 2009, counsel adopted their respective briefs. However, A.T. Lawai, learned counsel for the respondents, in his submission, urged this court to discountenance the appellant’s reply brief. He observed that it raised new issues other than those in the brief of argument, citing Order 17 rule 5 Court of Appeal Rules, 2007.
He noted that in the instant case, the appellant formulated two new issues in the reply brief, citing page 2 of the Reply Brief. He urged the court to discountenance the arguments on pages 2-6 of the said process, citing Adewunmi v Asiniola (2009) 10 WRN 155, 165-166 per C. C. Nweze JCA.
Some preliminary observations have become imperative before the actual resolution of this appeal, one way or the other. In the first place, this court observed that the respondents’ Notice of Intention to contend did not comply with Order 9 rule 1 of the Court of Appeal Rules, 2007: it did not state the precise form of the order which it proposed to ask the ask the court to make, or make in that event.
Unfortunately, this court did not afford the parties the opportunity to address it on this observation. Thus, we are handicapped as we have no jurisdiction to resolve the question of the validity of the said Notice without hearing from the parties. The reason can be found in the formulation long-established in case law: it is incumbent on any court that raises an issue suo motu to hear from the parties before resolving such an issue. The cases on this point are many: so many that only a handful will be referred to here, Bhojsons Plc v Daniel-Kalio (2006) 5 NWLR (Pt 973) 330; Kuti v Balogun (1978) 1 SC 53; Aermaeehi S.P.A v A.I.C. Ltd (1986) 2 NWLR (Pt 23) 443; Iriri v Erhurhobara (1991) 2 NWLR (pt 173) 252; Ndiwe v Okocha (1992) 7 NWLR (pt 252) 129; Abimbola v Abasan (2001) 4 SC (pt 1) 64, 73 and 74; Ugo v Obiekwe (1989) 1 NWLR (pt 99) 556, 581; Okafor v Nnaife (1972) 3 ECSLR 261; Oje v Babalola (1991) 4 NWLR (pt 185) 267, 280; Cookey v Fombo (2005) 5 SC (pt 11) 102, 112. The courts have even charted a nexus between this formulation and the constitutional right to fair hearing, Oje v Babalola (1991) 4 NWLR (pt 185) 167, 280.
In the circumstance, we are, then, under obligation to overlook our observation and to proceed with the determination of the appeal. In any event, even the respondent’s “omission to give such notice shall not diminish any powers of the court … ” Order 9 rule 6.
Secondly, we think it is appropriate to dispose of the submission of Lawal on the propriety of raising new issues in a reply brief. This will, naturally, take us to a reconsideration of the purpose of filing briefs under the Court of Appeal Rules 2007.
Ever since the introduction of the concept of “Briefs” in the vocabulary of appellate processes in Nigeria, the courts have continued to cast illuminating light on the express letters and even the intendment of the provisions of the Rules providing for them. In this appeal, Lawal has made an important point. Order 17 rule 5 of the Court of Appeal Rules 2007 provides thus:
The appellant may also, if necessary, within fourteen days of the service on him of the respondent’s brief; file and serve or cause to be served on the respondent a reply brief which shall deal with all new points arising from the respondent’s brief. [Italics supplied]
An intimate reading of this provision, especially the italicised portion thereof, would reveal that this prescription was designed to achieve a limited objective, namely, to afford the appellant the opportunity of making clarifications on novel points which the respondent raised in the course of answering the issues he [the appellant] had made in his own brief. Hence, the provision is not designed to, as it were, give the appellant another opportunity of taking a second bite at the cherry.
Like most of the other provisions, this provision has been subjected to judicial interpretation in several cases. These decisions are unanimous on the point that: a reply brief, within the contemplation of Order 17 rule 5, can only answer or respond to new points raised in the respondent’s brief. Thus, it is not a forum for offering further arguments on the appeal, see per Nweze JCA in Asiniola v Fatodu (2009) 6 NWLR (pt 1136) 164, 196, citing Ijade v Ogunyemi (1996) 9 NWLR (pt 470) 17; Ajileye v Fakayode (1998) 4 NWLR (pt 545) 184; Philips v Akinola (2008) All FWLR 1728, 1743: Mere v Obi (2008) All FWLR (pt 426) 1956, 1971.
The process, which is now under scrutiny following the observation of A. T. Lawal, was filed on March 5, 2009. Paragraph 1.03 is instructive as it dramatises the poverty of the said process. The appellants concreted two new issues from the respondents’ brief. Listen to this:
By virtue of the Respondents’ notice to contend that the judgment should be affirmed on other grounds other than those relied upon by the court below and the Respondents’ brief of argument, two new points or issues arose from the said brief for determination by this Honourable appellate court. [Italics supplied]
With due respect to the learned counsel who drafted that said process, there is a mix-up in terminologies here. What the rule anticipates are new points and not new issues. In our appeal process, which operates the brief system, the two terms are neither conterminous nor analogous! Under the Court of Appeal Rules 2007, their only area of convergence is that both concepts trace their juridical roots from the same court process, namely, the brief of argument. Apart from that, they address different concerns in the appeal process. Thus, whereas, Order 17 rule 3 (1) prescribes that “the brief… shall contain … the issues arising in the appeal as well as amended or additional grounds of appeal”, Order 17 rule 4 (2) stipulates that the respondent’s brief “shall answer all material points of substance contained in the appellant’s brief and contain all points raised therein … ”
Order 17 rule 5 contemplates that in the process of answering such material points, which the appellant had raised in his brief, the respondent may broach new points which the appellant neither contemplated, anticipated nor addressed. This provision, therefore, affords him occasion to react only to those new points. Hence, it does not grant such an appellant a “carte blanche to re-argue the appeal”, per Nweze JCA in Asiniola v Fatodu (supra) 196 by raising new issues altogether.
The appellant, with respect, fell into this error. His so-called reply brief went outside the canvass of the material points which the respondents’ brief addressed: by formulating two new issues, as he did, he was unwittingly advancing that canvass to new frontiers which neither the respondents intended nor Order 7 rule 5 permits!
In consequence, I whole-heartedly accept the invitation which Lawal extended to the court to discountenance those issues and the arguments in support thereof on pages 2- 7 of the reply brief. We shall, therefore, discard that process entirely. The said reply brief is, hereby, struck out.
Now, the crux of the Notice to contend gravitates around an issue that is at the hub of the adjudicatory process: denial of the right to fair hearing. Thus, at page 5 of the respondents’ brief of argument, it was contended that the “judgment being appeal (sic) against was hinged on the absence of fair hearing from the inability of the trial Customary Court Judges to allow a proper investigation of the allegation of bias made against them”, citing pages 150-160 of the records.
The reference to the judgment being appealed against is obviously to the judgment of the lower court [coram Abodunde J]. What was the court’s view on the question of the alleged breach of the rule of fair hearing by the court of first instance? We invite attention to page 154. Listen to the finding of the court below:
(On) … whether bias can be inferred from the conduct of the trial court Customary Court Judges and if so what should be the effect on this appeal, I am of the view that fair hearing was Impaired to a considerable extent..
To exemplify that allegation of the right to fair hearing, the court proceeded thus:
The court is enjoined to hear all parties to a case in all material issues before reaching a decision which may be prejudicial to any party in the case. The delivery of the judgment on 7/12/2000 in spite of a pending enquiry is prejudicial to the appellants. For what is worth in the interest of justice to be manifestly seen to be done the trial Customary Court Judges ought to have adjourned the delivery of the judgment and not to act in haste despite the prompt (sic) of the learned counsel for the defendant on the said day. To this extent in my view, it cannot be said that the appellants had fair hearing of their complaints against the court as at that material time.
At page 155, the lower court observed that: “this to a considerable extent goes to the root of this case in respective (sic) of how well other aspects of the proceedings may have been conducted”.
As far as this allegation “goes to the root of this case”, the fate of this appeal will, equally, hinge on the lower court’s attitude to that allegation. Hence, the consideration of the issues formulated by the appellant must abide the disposal of that issue. In effect, to employ the expression of the lower court, irrespective of “how well other aspects of the proceedings [of the court of first instance] may have been conducted”, the allegation of breach of the right to fair hearing strikes at the root of the entire architecture of the case in that court.
The edifice [the eventual judgment of the court of first instance] was bound to collapse for, as the lower court concluded: “the fact that the trial Judges [of the Customary Court] did not allow a proper investigation of the allegation of bias made against them to be investigated is (sic) fatal to their decision”. The view of the court, simply put, comes to this: the decision of the Customary Court was bound to collapse because it was erected on a weak or shaky foundation: the decision wreaked havoc on the respondents’ right to fair hearing!
What then was the foundation on which the judgment of the court of first instance was erected? Again, we shall return to the judgment of the lower court. At page 156, it noted that:
I am of the view that ground 2 of the appeal is well grounded especially when cognizance is taken of the fact that the appellants complained of the usual practice of the respondents to engage in discussions of whatever type with the members on hearing days in Chambers. The members ought to have allowed this allegation to be investigated and if found to be baseless will have been in order to deliver their judgment, after a directive in writing from the supervising authority [Italics supplied]
It would appear that the appellant’s counsel did not appreciate the full import of the finding of the lower court. On paragraph 3.01.07 he claimed that:
From the record of proceedings before the learned judge, there is no direct evidence of bias in respect of the conduct of the trial customary court members that the delivery of the judgment on 7/12/200, in spite of a pending inquiry, is prejudicial to the Respondents’ case.
It would, however, appear that the appellant’s counsel, with respect, was being economical or miserly with the statement of what transpired at the court of first instance. At page 50 of the records, we have the following minutes from the records of the court of first instance:
The defence counsel Owesini Ajayi Esq rose to inform the court that the Chief Registrar, High Court of Justice, Ado Ekiti had written to (sic) a letter to this court to stop further proceedings in this case pending the determination of the petition sent by the defendants in respect of this case which I am aware had been delivered to this court. However if this court wishes to disregard the order of the Chief Registrar to go ahead with the proceedings I wish to excuse out (sic) of the matter. [Italics supplied]
What was this petition that prompted the intervention of the Chief Registrar? The lower court supplied the answer. At page 156, the court explained that:
… the appellants [that is, the respondents herein who were the appellants at the lower court] complained of the unusual practice of the respondents [that is the appellants herein who were the respondents at the lower court] to engage in discussions of whatever type with the members on hearing days in Chambers … [Italics supplied]
The lower court took the vIew that “the members ought to have allowed this allegation to be investigated and if found to be baseless will have been in order to deliver their judgment, after a directive in writing from the supervising authority” [page 157]. At page 160, the lower court concluded: “that the fact that the trial Judges of the lower court [that is, the court of first instance] did not allow a proper investigation of bias made against them to be investigated is (sic) fatal to their decision” [page 160].
Curiously, the appellant, in reaction to the above telling conclusions of the lower court, turned to the validity of the said order of the Registrar. At page 9, learned counsel submitted that the said order stopping further proceedings of the court of first instance “is (sic) not validly made pursuant to the Chief Judge’s supervisory powers”, citing section 33(1), (2) and (3) of the Customary Courts Law applicable to the court.
As noted earlier, the issue “goes to the root of the case”. Thus, it transcends the authority of the Chief Registrar under section 33 (supra). It directly touches on a more important section: section 36 of the Constitution of the Federal Republic of Nigeria, 1999! This is because the allegation touched on a cardinal attribute of fair hearing ordained in that section of the Constitution; the impartiality of the adjudicators.
The crux of the complaint had been noted above: the present respondents: complained of the unusual practice of the respondents [that is the appellants herein who were the respondents at the lower court] to engage in discussions of whatever type with the members on hearing days in Chambers … [Italics supplied]
What implication does this have on the objective impartiality of the court of first instance?
The answer is that it has everything to do with the observance of the right to fair hearing. The lower court said this much. That opinion cannot be faulted. Hear what the lower court had to say on this point on pages 160 – 161:
Fair hearing is all-encompassing (sic) it will amount to injustice not to consider the allegation of bias which was not allowed to be investigated in the circumstance. It would have been a different ball game if the allegation was investigated and the trial Customary Court Judges were ordered to proceed with the delivery of the judgment. Premised on the un-investigated allegation of bias this appeal will succeed. Justice must only be done it must seen to be done …
The lower court can seldom be faulted on this score. Section 36 which inaugurates the cardinal attributes of fair hearing [in this case we are concerned with the lower court’s reaction to the havoc done to the attribute of impartiality at the court of first instance], presupposes that justice is rooted in confidence: confidence that the adjudicatory body [in this the court of first instance] was constituted in such a manner to secure its impartiality.
It is against the background of this inviolable constitutional framework that the Supreme Court has described allegations of bias as “a very serious thing indeed”. It is a very serious thing because it is capable of affecting or destroying the public confidence enjoyed by the judiciary, Arcon Fasasi (No 4) (1987) 3 NWLR (pt 59) 42; Bakare v Apena (1986) 4 NWLR (pt 33) 1, 21; Edun v Odan Community (1980) 8 – 11 SC 103.
Thus, to save the judiciary from public odium and contempt, Judges of whatever description must not, in the conduct of proceedings before them, be seen either by words or actions to scandalize the public by displaying partiality in favour of one of the parties against the others, Deduwa and Ors v Okorodudu and Ors (1976) 10 NSCC 329.
What could be more scandalous than the: unusual practice of the respondents [that is the appellants herein who were the respondents at the lower court] to engage in discussions of whatever type with the members on hearing days in Chambers…?
The question may be asked: what opinion would a reasonable person have formed of the proceedings on hearing the allegation that the present appellants were always in the habit of engaging in discussions “of whatever type” with the members on hearing days in court? This question is necessary because the test, in this sort of situation, is objective: that is, the opinion of a reasonable person of such proceedings, Ogbo v FRN (2002) 25 WRN 1; Tunbi v Oawole (2005) 4 WRN 44; Ndukauba v Kolomo (2005) 12 WRN 32; Afro-Continental v Co-op Association (2003) 17 WRN 109.
Such is the consequence of the breach of this constitutional safeguard that if an appellate court makes a finding that there was a breach of fair hearing by a trial court, such a finding renders the whole trial a nullity, Ndukauba v Kolomo (supra); Olumesan v Ogundepo (1996) 2 NWLR (pt 433) 628.
The lower court [coram Abodunde J] found that the court of first instance breached the respondents’ right to fair hearing. A t page 161, the court intoned that: “premised on the un-investigated allegation of bias this appeal will succeed.” This is irrespective of “how well other aspects of the proceedings may have been conducted” [page 155].
I, entirely, endorse this conclusion of Abodunde J. I agree with Lawal that the judgment of the High Court of Ekiti State delivered on August 1, 2006 should be affirmed on this ground of the breach of the respondents’ right to fair hearing.
The effect is that all the arguments which the appellant’s counsel made on pages 5 – 18 of the appellant’s brief of argument are merely hypothetical arguments. Since, this breach of the respondents’ right to fair hearing went to the root of the matter, it vitiated the entire proceedings. In Idakwo v Ejiga (2002) 2 SC (pt 11) 168, 172-173, Ayoola JSC (as he then was) prescribed the remedy where there is a breach of fair hearing in these words:
… what order should an appellate court make consequent upon its finding that there has been absence of fair hearing? ..Where the proceedings are held not to be fair and the unfairness had tainted the entire proceedings there would have been a breach of the principle of procedural equality of the parties essential to our system of adjudication, such as to make the proceedings a sham. The normal thing to do in such a situation is to set aside the decision.
This brings me to one final observation: although Customary Courts are not bound by technical rules of procedure, the provision of section 36 of the Constitution (supra) relating to fair hearing is a very far-reaching provision. The requirements of fair hearing are so ubiquitous that even proceedings in Customary Courts must observe them, Adesina v Afolabi (2001) 31 WRN 159, 168.
I affirm the judgment of Abodunde J on this ground, and this ground alone! Appeal is, hereby, dismissed.
Parties to bear their costs.
Other Citations: (2009)LCN/3336(CA)
