Angela Anidiobi V. Cajetan Anidiobi (2006)

LawGlobal-Hub Lead Judgment Report

JA’AFARU MIKA’ ILU, J.C.A.

This is an appeal in respect of a matrimonial cause. A petition was filed against the appellant in Enugu State High Court, Enugu Judicial Division in suit NO.E/160/92 on the following ground:-

(a) The marriage has broken down irretrievably.

(i) The respondent has deserted the petitioner for a continuous period of at least one year immediately proceeding the presentation of this petition.

(ii) That since the marriage, the respondent has committed adultery and the petitioner, finds it intolerable to live with the respondent;

(iii) That since the marriage, the respondent has behaved in such a way that the petitioner can not reasonably be expected to live with the respondent.

The petitioner was seeking for an order of a decree of dissolution of his marriage on the above grounds and he was also seeking for an order of custody of the only child of the marriage, Theodora Mgoife Anidiobi.

The appellant filed her answer and cross-petition. In her cross-petition she petitioned the court for:-

(a) a decree of restitution of conjugal rights against the petitioner; or alternatively,

(b) a decree of dissolution of marriage against the petitioner on the ground of:-

(i) desertion of the respondent by the petitioner for at least one year immediately proceeding the presentation of this cross-petition; and

(ii) that since the marriage the petitioner has behaved in such away that the respondent is not reasonably expected to live with him; and

(iii) that since the marriage the petitioner has persistently committed adultery and the respondent finds it intolerable to live with him; and

(c) an order for the maintenance of the respondent and the two children of the marriage.

Later on the appellant filed a motion on notice praying the court for:-

1. An order granting leave to the applicant to seek additional ancillary relief in the substantive proceedings, that is to say the petitioner be ordered to pay maintenance pending suit to the respondent as follows:-

(a) N1,000.00 monthly for the maintenance, medical care and education of the two children of the marriage (Theodora and George) effective 1/8/93.

(b) N500. monthly contribution for the maintenance of the respondent effective 1/8/93.

(c) N11,700.00 for settlement of creditors in respect of rented accommodation for the respondent and the two children of the marriage at No.11 College Road Abakpa Nike, Enugu for the period May, 1991 to July, 1993;

(d) N2,930.94 for settlement of creditors in respect of medical expenses of the respondent and the two children of the marriage for the period May, 1991, to July, 1993 and

(e) N1,052.00 for settlement of cost of fees, uniforms and equipment for the first child, Theodora, at May Blossom Day – Care center, Abakpa Nike, Enugu, for 1991 – 93.

2. Such further order or orders as the Honourable court may deem fit to make in the circumstances.

On the 8′” day of February 1994 when the matter came up before the court the respondent was absent however her counsel Dr. A.J.C. Mogbana, appearing with O.S. Ojo Esq learned counsel for the respondent/appellant was in court. But the trial court ruled as follows:-

“No reason is given for the absence of the respondent/applicant who present (sic) this motion on Notice for a number of interim relieves. The motion is struck-out.”

Immediately after that trial proceeded by hearing the evidence of the first petitioners witness. Himself, the petitioner. Refer to page 43 of the proceedings.

It is to be noted that in reply to answer and cross-petition of the appellant who was the respondent the petitioner filed his reply to answer and answer to cross-petition of the Respondent.

The appellant after close of the case for the petitioner started to testify on 23rd day of January 1995. She however did not finish her evidence but the trial court called upon the petitioner’s counsel to address it and then it entered judgment in the favour of the petitioner. The Respondent was dissatisfied and she therefore appealed to this court.

The learned counsel for the appellant Dr. A.J.C. Mogbana has adopted the appellant’s brief of argument filed on 4th May 2004. The learned counsel for the Respondent, Chief M.O. Uzor has adopted Respondent’s brief of argument filed on 18th November 2004.

In the appellant’s brief of argument four issues have been formulated for determination in this appeal. They are:-

(i) Is the judgment not a nullity for denial to the respondent of the right of fair hearing in the proceedings in the lower court (Grounds 1, 2, and 3).

(ii) Whether the verdict was invalid because the trial chief Judge tried only the petition without considering and determining the cross-petition, having regard to section 54(4) of the Matrimonial Causes Act. (Ground 4)

(iii) Was the court below right in making a decree of dissolution on the ground that the marriage has broken down irretrievably; (grounds 5 and 6).

(iv) Did the trial court not misconceive the law in failing to hold that the second child is an legitimate child of the petitioner, having regard to section 148 of the evidence Act (Ground 7).

On the other side four issues have also been formulated in the respondent’s brief of argument. They are:-

(a) Whether the appellant who abandoned her case, along with her counsel, in the court below can now claim a denial of fair hearing and thereby declare the Judgment a nullity.

(b) Whether having regards to the provision of section 54(4) of the Matrimonial Causes Act, 1970, the trial Chief Judge ought to have considered and determined the cross-petition along with the petition when an evidence was led in proof of the cross-petition.

(c) Whether the petitioner (Respondent) did not prove his petition as to be entitled to an order Nisi as entered by the trial Chief Judge on 26/11/96, taking into consideration that fact that the evidence tendered by the petitioner was unchallenged.

(d) Whether the learned trial Chief Judge ought to have automatically applied section 148 of the Evidence Act without a relief sought as to or evidence led of the legitimacy of the second chief, Oscar George.

The above issues as formulated in the respondent are to the same effect with the issues as formulated in the appellant’s brief of argument I will therefore determine this appeal in terms of issues as formulated in the appellant’s brief of argument.

ISSUE NO.1

Is the judgment not a nullity for the denial to the respondent the right of fair hearing in the proceedings in the lower court: (Ground 1, 2 and 3).

It has been submitted correctly by the learned counsel for the appellant that fair hearing of a suit is not only a common law requirement in Nigeria, but also a statutory and Constitutional requirement. That a person shall be entitled to a fair hearing within a reasonable time by a court or tribunal established in such a manner as to secure its independence and impartiality. He relies on GARBA V. UNIVERSITY OF MADUGURI (1986) 1 NWLR (Pt. 18) 550; 584. He has reiterated correctly that the rule of audi alteram partem imposes upon the court trying a case the responsibility or duty to ensure that any party to the suit is given every opportunity or facility to present his or her case. That if the proceedings are conducted by the court in a manner that makes it impossible, inconvenient or difficult for any party to participate in the proceedings or present his or her case there is a clear infringement of this rule. The learned counsel for the appellant argues that the trial of this petition spanned over four years with nearly thirty fixtures. Most of the time the trial chief Judge was responsible for hearing not taking place. He has maintained that if adjournments had been ordered with the parties convenience taken into account then such adjournments would be fair and limited. That the adjournments were too many and had the obvious effect of frustrating the respondent and rendering it impossible for her to attend all sittings throughout the trial and present her case. He relies upon SALU V. EGEIBON (1994) 6 NWLR (Pt.348) 23, SCNJ (Pt.II) 233. He has also submitted that the refusal of the trial Chief Judge respondent’s application to transfer the case to another Judge having regard to all the circumstances, is a denial of fair hearing. That also the exclusion of the respondent’s legal practitioner from the proceedings of 24/6/96 amount to preventing the respondent from participating in the day’s proceedings and a breach of her right of fair hearing, since the respondent is entitled to appear in person or by counsel. He relies on KEHINDE V. OGUNBUNMI (1968) NMLR 37, (1967) All NLR (2ND ED.) 326, ATAKE V. AFEJUKU (1994) 9 NWLR (Pt.367) 379 (1994) 12 SCNJ 6; 9. The appellant’s counsel has submitted that the decision of the trial Chief Judge on 8/2/94 to strike out the respondent’s motion seeking interim ancillary orders for maintenance on grounds that no reason was given for her absence from court, even though her counsel was present, is a violation of her right of fair hearing. The appellant’s counsel has concluded that where a party is denied his right of fair hearing in a proceedings such proceeding is a nullity relying on OTAPO V. SUNMONU (1987) 2 NWLR (Pt.58) 587, (1987) 2 WSCC 677; 693. He has maintained that the entire trial of the petition in the court below is nullity and he urges the court to hold so and set aside the judgment of the lower court for failure to observe the all – important principle of fair hearing – audi alteram partem.

On the other hand it is the argument of the learned counsel for the respondent that a party who deliberately chooses to abandon his case or fails to utilize the opportunities afforded him in the prosecution or defence of the case, can not turn around and complain of denial of fair-hearing. That also a party who abandons a case having been served with all the processes and who filed an appearance, the case having been adjourned severally without the party abandoning trying to find ought the situation of the case, can not when judgment is entered therein complain of lack of fair-hearing or a miscarriage of justice. The respondent’s counsel has relied upon the following cases:-

1. NUBA COMMERCIAL FARMS LTD. V. NAL MERCHANT BANK LTD. (2003) FWLR (Pt.145) 661;
2. PETROLEUM (SPECIAL) TRUST FUND V. INTEGRATED FACILITY MANAGEMENT SERVICES LTD (2003) FWLR (Pt.155) 73; 745;
3. JADCOMS LTD. V. OGUS ELECTRICAL (2003) FWLR (Pt.183) 165; AND
4. JONASON TRIANGLES LTD V. CHARLES MOH & PARTNERS LTD (2002) 15 NWLR (Pt.789) 176 (2002) …. SCNJ 1.

The learned counsel for the respondent has also argued that the record does not show that the applicant applied orally or in writing for the transfer of the case to another court or Judge. That on 24/6/95 when the appellant claimed that her counsel was excluded from the court the trial Chief Judge only adjourned the case because of lack of electricity. That the appellant and her counsel were not in court. He maintained that these are fresh points as not raised at court below. He also argues that the motion struck – out on 8/2/94 could have been relisted if the appellant wished and that the striking out of the motion was an interlocutory decision which ought to have been appealed against within the fourteen days period. She has not sought leave to appeal against the same. The learned counsel for the respondent has concluded that the learned Chief Judge did not in any manner deny the appellant the right to a fair hearing in his determination of the petition and his judgment is therefore not a nullity.

Be that as it may, I have gone over the copy of record of proceedings of the trial court. I do agree with the learned counsel for the respondent that from the record there is nothing to show that the appellant applied orally or in writing for the case to be transferred to another court or Judge for determination. There is also nothing to show that the appellant or appellant’s counsel was locked out of court. However the proceedings have shown so many adjournments by the trial court most of which could not have been supported by any reason and not based on request by any of the parties to the proceedings. For example on 11th February 1994 both counsel were present but the court adjourned appellant’s motion for ancillary claims to be heard on 8th February 1994. When the case came up on 8th February 1994 the respondent’s counsel was in court and the appellant was absent. Without hearing the appellant’s counsel the court on its own motion just struck – out the appellant’s motion alleging that the absence of the appellant that day was not explained. However on 2nd May 1994 the appellant’s counsel was present in court. Instead of hearing the matter the trial court just adjourned the case to 30th May 1994 for hearing without hearing the appellant’s counsel. Though the appellant was not in court on 14th November, 1994 and 5th December, 1994 she was in court on 23rd January 1995 when she started giving evidence. The matter was adjourned to 20th March 1995. Though on that date the court did not sit the case came up on 26th September, 1995. As she started to continue with her evidence the court on its own motion adjourned the matter to 23rd October 1995.

The court did not sit that date but set on 19th November 1996. The appellant and her counsel were not in court and there was nothing to show they were aware of the case coming up that date. But the court without closing the case for the appellant who started giving evidence adjourned the case to 25th November, 1996 for address and Judgment. On 25th November 1996 the case came up and the appellant and her counsel were absent. There was nothing on record to show that they were aware of the date. The respondent’s counsel started to address the court. The case was adjourned to 26th November 1996 for continuing to hear the respondent’s address. There was nothing to show that the appellant or her counsel was served. They could even not be served as it was adjourned for a day.

On the 26th November 1996 the case came up in the absence of the appellant and her counsel. The respondent’s counsel concluded his addresses and there and then the trial court gave judgment which was in favour of the respondent. Considering the conduct of the trial court in the way and manner it was adjourning the case and continuing to hear the respondent in the absence of the appellant without ensuring that the appellant was served or not it would be seen that the right to fair hearing of the appellant has been infringed grossly by the trial court. It is to be noted that the principle of fair hearing is fundamental to all court procedure and proceedings; and like jurisdiction, the right to fair hearing is a fundamental and Constitutional right of a party to a dispute who is to be afforded an opportunity to present his case to the adjudicating authority, without let or hindrance from beginning to the end. Refer to EKPETO & 2 ORS V. WANOGHO & 4 ORS (2004) 18 NWLR (Pt.905) 394. I emphasize that it is not for a court to fail or neglect to ensure that a party has been served just because he has not been attending the court.

A party deserves the right to be served with hearing notice whenever a case is coming up for hearing. It is also for a court to ensure that a party to a case has been served before continuing to hear the case whenever the case comes up for hearing. This issue is decided in favour of the appellant I find that the trial court has denied the appellant her right to be heard and this nullifies the entire proceedings of the trial court.

With the above I may not have to deal with the other issues in this appeal.

However issue No.2 is so important that I feel it is appropriate to give it even a cursory consideration. That second issue as formulated in the appellant’s brief of argument reads as follows:-

“(ii) Whether the verdict was invalid because the trial Chief Judge tried only the petition without considering and determining the cross-petition, having regard to section 54(4) of the Matrimonial Causes Act.”

The main argument of the learned counsel for the respondent herein that in this case there is petitioner’s petition for the dissolution of marriage on the one hand. On the other hand there is respondent’s answer and cross-petition seeking restitution of conjugal rights or in the alternative dissolution of marriage as against the petitioner. There is petitioner’s reply to answer and answer to cross-petition and also the respondent’s application for interim ancillary orders of maintenance.

He has submitted that apart from the application for interim ancillary orders of maintenance, which was arbitrarily struck out by the trial court, the court below only heard and determined the petition. That throughout the Judgment there is no mention of the answer and cross-petition or the evidence of the respondent who testified on at least two sittings, when she was opportune to do so. That her evidence was not taken into account in the Judgment. The appellant’s counsel has maintained that the exclusion of the answer and cross-petition and the evidence of the respondent from the preview and consideration of the trial chief Judge can not but result in a perverse judgment. He urges this court to declare the judgment as such and to set it aside. He maintained that this conduct of trial court is contrary to section 54(4) of the Matrimonial Causes Act. This argument of the learned counsel for the appellant is so weighty that it can not be ignored. The argument of the learned counsel for the Respondent that cross-petition ranks lower than counterclaim and that the appellant was not cross-examined for the trial court to consider the evidence she had given can not be accepted. His argument that the appellant abandoned her case is also untenable. Section 54(4) of the Matrimonial Causes Act, Cap 220 Laws of the Federation of Nigeria, 1990 has provided that the court shall, so far as is practicable, hear and determine at the same time all proceedings instituted by the one petition. This undoubtedly includes a cross-petition. Moreso under section 114(1) of the said Act “petition” includes a cross-petition. In a matrimonial cause it will be wrong for the trial court to refuse to decide the petition of the cross-petitioner one way or the other. That will be fatal to the proceedings of the trial court. It is just like a trial court failing or neglecting to consider the counter-claim of a defendant. In the case at hand the trial court failed or neglect to consider the cross-petition of the cross-petitioner and also failed to even comment on it or the evidence already given by the cross-petitioner. I therefore agree with the learned counsel for the appellant that this procedural defect in the trial of the court below has rendered the entire hearing and judgment null and void. This issue is also decided in favour of the appellant.

With the above it will not be appropriate to consider the other issues this is an appropriate case for retrial. I find merit in this appeal and I accordingly allow it. I set aside the proceedings and Judgment of the trial court. I order that this case be remitted back to be assigned by the chief Judge of Enugu State to another Judge for retrial. I award the sum of N18,000.00 as costs in favour of the Appellant against the Respondent.

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Other Citations: (2006)LCN/1917(CA)