Attorney-general Of Rivers State V Gregory Obi Ude (2006)
LAWGLOBAL HUB Lead Judgment Report
MUSDAPHER, J.S.C.
This is the second journey of the dispute concerning the land and property at No.2 Ekpeye (Umuoji) Street, Diobu, Port Harcourt, otherwise known as plot 1, Block 261, Wobo layout, Port Harcourt. The first journey is reported in the case of Ude v. Nwara (1993) 2 NWLR (Pt.278) 638. The dispute herein was commenced by the appellant herein as the plaintiff, the Attorney-General of Rivers State on behalf of the Rivers State Government claiming possessions, rents and mense profits against the defendants, the respondents herein, as the occupants of the property whose lease granted to the 1st defendant expired in 1971. The 1st defendant had earlier given the 2nd defendant power of attorney over the management of the property and the 2nd defendant put the 3rd to the 13th defendants as tenants occupying the building erected thereon. The respondents resisted the appellant’s claims. Pleadings were filed and the 2nd defendant therein filed a counter-claim, in which he claimed;
“(i) A declaration that the (plaintiff) 2nd defendant is entitled to have the lease of the property renewed in his name for at least 99 years with effect from January, 1972.
(ii) An order that lease be renewed in the name of the counter-claimant.” In the alternative, the counter-claimant claimed the sum of N20,000,000.00(twenty million naira) as compensation for the buildings before possession is taken by the plaintiff. The plaintiff, the appellant herein, filed a statement of defence to the counter-claim. The parties amended their pleadings. After some preliminary matters were disposed of, the matter proceeded to trial before Manuel J.
On the 27/11/1996, the plaintiff, the appellant herein, opened its case and called PW.1 who gave his evidence in chief and the learned counsel for the defendants, respondents herein, asked for adjournment to enable a senior counsel to appear in court and to cross-examine PW.1 called by the plaintiff. The matter was adjourned to 24/2/1997, 25/2/1997 and 4/3/1997 for continuation. On the 4/3/1997, the matter was adjourned to 22nd – 26th of May for hearing. When the matter resumed on the 22/5/1997, the learned counsel for the defendants started and concluded the cross-examination. Thereafter, the plaintiff closed its case. The case was adjourned to 26/5/1997 for the defence to commence. When the matter resumed on the 26/5/1997, the learned counsel for the defendants was not in court, but wrote to ask for adjournment and the matter was adjourned to 10th, 16th, and 17th of December, 1997 for defence. On the 16/12/1997 when the matter was next mentioned, the learned counsel appearing for the defendants asked for an adjournment to enable the senior counsel handling the matter to appear. The court allowed the adjournment despite the opposition of the plaintiff’s counsel.
The matter was adjourned to 17/12/1997. The defence opened its case on the 17/12/1997 and DW.1 was called. The learned counsel for the defendants during the evidence in chief of DW1, asked for adjournment to tender some document which “has not been gotten from the Supreme Court.” The application for adjournment was opposed by the learned counsel for the plaintiff. The case was adjourned to 2nd and 7th of April, 1998 for continuation of hearing. When the matter resumed on the 2nd of April 1998, the learned counsel for the defendants was not in court none of the defendants was in court including the 1st defendant who was giving evidence as DW.1 or the 2nd defendant, who made the counter-claim. The learned trial Judge adjourned the matter despite the opposition of the learned counsel for the plaintiff. When the matter next resumed on the 22/6/1998, again the learned counsel of the defendants and the defendants were absent and the learned counsel of the plaintiff reminded the court that the plaintiff had closed its case since the 22/5/1997 and after several times the matter was being called, neither the defendants nor their counsel was in court and that no explanation whatsoever was ever offered for their absence. He urged the court to close the case for the defence and the counter-claim and enter judgment on the evidence adduced.
The learned trial Judge yet again adjourned the matter to the 24/6/1998 “to give the defendants another chance and this should be the last chance xxxxx.” When the matter resumed on 24/6/1998, the defendants were absent from court and their counsel was also absent. The learned trial Judge agreed with the plaintiff’s counsel and closed the case of the defendants including the counter-claim of the 2nd defendant and adjourned the matter to the 29/6/1998 for addresses. The learned counsel for the plaintiff addressed the court on the 29/6/1998 in the absence of counsel, the defendants including the counter-claimant. The plaintiff’s counsel concluded his address on the 2/7/1998 whereupon the matter was adjourned for judgment. In the judgment delivered on the 3/8/1998, the learned trial Judge ordered the defendants and each one of them jointly and severally to give up possession forthwith of the premises situate at No.2 Ekpeye (Umuorji) Street Diobu, Port Harcourt, otherwise known as plot 1, Block 261, Wobo Layout, Port Harcourt to the plaintiff. The 2nd defendant’s counter-claim was dismissed. The defendants felt aggrieved with the decision and appealed
to the Court of Appeal. Before the Court of Appeal, the defendants as the appellants submitted the following issues for the determination of the appeal:
(1) Is the action in court caught by the Rivers State Limitation Law, such as to bar and extinguish the right of the respondent to possession of the land in dispute
(2) Is the learned trial Judge right to hold that Ude v.Nwara (1993) 2 NWLR (Pt.273) 638 did not extinguish the right of the respondent/lessor of re-entry or possession in the particular suit.
(3) Is the learned trial Judge right to have “foreclosed” the appellant’s case on the 26/6/1998 leading further evidence on the amended statement of defence and counter-claim
(4) Did the respondent prove its case on that burden explicit in Mogaji & Ors v. Odofin & Ors (1978) 4 SC 91, at 93. The Court of Appeal in its consideration of the appeal before it, resolved issues 1, 2 and 4 against the defendants but in its consideration of issue No.3 stated, after narrating the various adjournments as itemized earlier in its judgment: “All these adjournments and events took place in the absence of the appellants (defendants).
It would appear that the appellants did not take any steps to find out what was happening to their case as from the 7/4/1998 when they should have been in court but failed to turn up. The appellants had a duty to themselves and the court below the follow up the progress of their case. They therefore have a major share of the blame of what happened to them in the court below. I am firmly of the view that despite the misbehaviour of the appellants in not showing up in court on the 2nd and 7th of April, 1998 and not giving any reasons for their absence in the court, the trial court knowing the seriousness of the issues in the case could have given the appellants notice of the adjourned dates before closing their case and giving judgment against them. I therefore see merit under this issue.” Thus the defendants succeeded on that single issue having lost all the other issues, their appeal was allowed, the judgment of the trial court was set aside and the case was remitted to the Chief Judge of Rivers State for re-assignment to another Judge other than Manuel J, who will hear the case de novo. The plaintiff felt unhappy with the decision of the Court of Appeal and has now appealed to this court. The amended Notice of Appeal filed with the leave of this court contains (3) three grounds of appeal. Mr Clement Nwara applied to this court to join as an Interested Party to appeal as a co-appellant against the decision of the Court of Appeal. This court on the 14/31/2005 granted the party interested aforesaid, leave to appeal as a co-appellant. He filed a notice of appeal on the 21/31/2005 in which he set out four grounds of appeal. In pursuance of the rules of this court, both the two appellants filed briefs of arguments. The respondents merely filed a brief in response to the brief filed by the 1st appellant, the Attorney-General of Rivers State. They did not react to the brief filed by the party interested/appellant.
It should also be noted that with the leave of this court, the appellant has amended its brief and the respondents did not file any amended respondents’ brief. At the hearing of the appeal, learned counsel adopted the written briefs. Now, in his brief for the appellant, as amended, the learned counsel has formulated and submitted the following three issues for the determination of the appeal:
- Was the Court of Appeal right in declining to decide that the claim of the plaintiff was not statute barred
- Did the lower court err in law in interfering with the learned trial Judge’s exercise of discretion in the conduct and determination of the instant case, when such exercise of discretion was not found to be perverse
- whether the Court of Appeal erred in remitting this suit to the trial court for a retrial after it held that the plaintiff/ respondent has proved its case in the court below.
The learned counsel for the party interested/co-appellant has identified and submitted the following two issues for the determination of the appeal:
“1. Whether the Court of Appeal was right in ,interfering with the discretion of the learned trial Judge which has been exercised not only with regard to principles of law but in accordance with the dictates of justice.
- Whether the Court of Appeal was right by failing to decide the issue of limitation law properly raised and placed before it.”
While the learned counsel for the respondent formulated only one issue for the determination of the appeal thus:- “Was the Court of Appeal right to have ordered a retrial by another Judge of the Rivers State judiciary” In my view, the first issue formulated by the appellant and the 2nd issue formulated by the co-appellant/party interested have no bearing whatsoever on the issue the Court of Appeal based its decision to allow the appeal of the respondents herein. I have in this judgment alluded to the fact that the Court of Appeal based its decision on the grounds that the respondents were not granted fair hearing by the trial Judge when their case was closed in their absence and when no hearing notice was served on them. The other three issues raised by the respondents were not resolved in their favour. An appeal is a complaint against a decision and is not a license or an excuse to raise all kinds of issues that have no relevance to the issue or issues upon which the decision complained against was based.
The question whether the claims of the appellant as the plaintiff was statute-barred so as to extinguish the right of the appellant to the possession of the land in dispute was not an issue that was decided or which arose from the decision of the trial court. It was a fresh issue and in my view, the Court of Appeal was right, when it held:- “In this case the appellants did not lead evidence in the court below to prove that the action of the respondent as statute barred. The result was that the issue of the statute bar was never considered by the court below and the appellants are raising the issue for the first time. It is my view that it is not a matter that this court should decide without evidence on the pleadings.” Thus, the Court of Appeal rightly in my view ignored the complaint of the respondents on this score. As mentioned earlier, the issue did not in any way feature whatsoever in the crucial decision of the Court of Appeal. I accordingly ignore the issue on the application or non application of the relevant limitation law and consequently, the issue relating to this question in the briefs of both the appellant and the co-appellant are ignored by me. Before I proceed to deal with the remaining issues for the determination of the appeal, I observe the respondents have raised a preliminary objection to the competence of the appeal, but at the hearing of the appeal, the learned counsel for the respondents did not apply or seek leave of court to raise the said objections. The preliminary objection in this case not having been raised and argued at the appeal, the objection is deemed abandoned. See Nsirim v. Nsirim (1990) 3 NWLR (Pt.138) 285 at 297; Onochie v. Odogwu (2006) 2 SCM 95; (2006) 6 NWLR (Pt.975) 65. I accordingly deem the preliminary objection abandoned. I shall now deal with the remaining Issues.
Issue 2
This is concerned with the exercise of discretion made by the learned trial Judge in closing the case of the respondents when they failed to appear in court. I have at the beginning of this judgment related in some details what transpired at the trial court before the 17/12/1997 and on that date when the respondents opened their defence and began to lead evidence. DW.1 was called and the learned counsel for the respondents asked for an adjournment to get some documents from the Supreme Court. The matter suffered several more adjournments due to the respondents neglect or refusal to appear in court until the 24/6/1998 when the respondents’ case was closed by the learned trial Judge due to their persistent absence in Court. The learned trial Judge on the 24/6/1998 at page 79 of the record of appeal stated thus:
“Court
I agree with counsel for the plaintiff that the defendants are no longer serious or interested in the matter. This is because of the non appearance of the defendants and their counsel. Learned counsel for the plaintiff applied on the 22/4/1998 that they be foreclosed for the matter to continue. On that day I promised I was going to consider the application on the next date of adjournment. On the 22/6/1998 the honourable court was again reminded of its promise of the previous date of adjournment. I then in order to give the defence another opportunity to come and make up for their (discourteous) attitude to the court notwithstanding, adjourned the matter to 24/6/1998 and for the last time. Today 26/6/1998, neither the defendants and their counsel is in court to prosecute the matter, which is for them to defend. It is crystal clear they are no longer interested for whatever reason only known to them. This is because on 17/12/1997 they opened their defence with their DW.1 Dr. Uche Dominic Anusionwu, since then they have decided not to come to court again without explanation. They have thus abandoned their defence and left the court undecided as to their next move. This is a situation this honourable Court cannot accept. It is one of the pillars of an adversary concept of litigation whereby the parties should know how their case stood. For one party to hold the other to ransom in the hope that the matter will die a natural death cannot be tolerated. The court will call a halt to such attitude. It is therefore ordered that the defence is hereby foreclosed from giving any further evidence in its defence.” Now, on this point, the Court of Appeal per the judgment of Ogebe J.C.A with which Pats Acholonu, J.C.A. (as he then was) of blessed memory, and Akpiroroh JCA concurred, said at page 186-187 of the records of appeal thus:- “The record shows that clearly on the 17/12/1997 the appellants opened their defence and started examining their 1st witness. In the middle of the examination, the learned counsel for them asked for an adjournment to get some document from the Supreme Court.” The learned justice proceeded to recount the number of adjournments made by the learned trial Judge in order to accommodate the respondents who persistently neglected to appear in court to continue with their defence. The learned justice continued. “The appellants had a duty to themselves and to the court to follow up the progress of their case. They therefore have a major share of the blame for what happened to them in the court below I am firmly of the view that despite the misbehaviour of the appellants in not showing up in court, the trial court knowing the seriousness of the issues in the case should have given to the appellant notice of the adjourned dates before closing their case and giving judgment against them.” Thus, the respondents’ appeal was allowed on this sole ground. Now, it is submitted by the learned counsel for the two appellants that the question of adjournment is a matter of discretion of the court concerned and appellate court should not ordinarily interfere with the exercise of the discretion of the trial court. Learned counsel relied on the case Ntukidem v. Oka (1986) 5 NWLR (Pt.45) 909. It is also submitted by the appellants that the trial court had judiciously and judicially exercised its discretion to refuse adjournment and that the exercise of such a discretion shall not be interfered with by an appellate court, unless the appellate court comes to the conclusion that the exercise of such discretion was manifestly wrong, arbitrary, reckless, injudicious or contrary to justice. University Of Lagos v. Aigoro (1985) 1 NWLR (Pt.1) 143; University of Lagos v. Olaniyan (1985) 1 NWLR (Pt.1) 156. It is again submitted by the learned counsel for the appellant since the Court of Appeal agreed with the learned trial Judge that the respondents were guilty of bad behaviour and had indeed abandoned their case, the Court of Appeal was in error to have held that the trial Judge was in error when he closed the case of the respondents. It is again argued that with all the indulgence granted the respondents, the Court of Appeal acted erroneously to have held that the respondents were entitled to a hearing notice, when they refused to appear in court and when they also refused to find out the progress of their case in the trial court. The respondents failed to give their reasons for their failure and refusal to appear in court and they were not accordingly entitled to have a fresh hearing notice. It is submitted by the learned counsel for the respondents, that the trial court had the duty to issue hearing notices to the respondents on the new dates fixed for the hearing of the matter notwithstanding the fact that the respondents were absent from court and that no explanation was given for the absence. It is argued that the court had a duty under Section 36 of the Constitution to ensure fair hearing. Learned counsel referred to and relied on the case of Scott Emuakpor v. Ukavbe & Ors. (1995) 12 SC 41. It is submitted that the trial court denied the respondents the right of being heard, thus rendering the trial a nullity see Dawodu v. Ologundudu (1986) 4 NWLR (Pt.33) 104; Layanju v. Araoye (1959) SCNLR 416 at 420. It is submitted that the issue in this case is not the exercise of discretion, but a breach of the constitution relating to fair hearing which no court should ignore. The failure to issue hearing notices rendered the entire proceedings before the trial court a nullity and the Court of Appeal rightly set aside the decision and, ordered re-trial see Alhaji Sanusi v. Amoyegun (1992) 4 NWLR (Pt.237) 527 at 556. On a calm view of what the Court of Appeal decided, I agree with the learned counsel for the respondents, that the Court of Appeal did not decide on the injudicious use of the power of discretion to adjourn or not to adjourn the case, but merely on the issue of the failure of the trial court to issue hearing notices to the respondents when the matter was adjourned and that is notwithstanding the fact that the respondents were aware of the date of hearing and absented themselves from court and also failed to advance any reason for their absence. Now, fairness is the determining factor for the application of principles of natural justice. In other words, natural justice is fair play in an action. See Ex-parte Obiyan (1973) 12 SC 23. A hearing of matter in court cannot be said to be fair if any of the parties appearing before the court is refused a hearing or is denied the opportunity to be heard or present his case or call evidence; see for example Mil. Governor, Imo State v. Nwauwa (1997) 2 NWLR (Pt.490) 675. The right to fair hearing is a fundamental constitutional right guaranteed by the constitution of the Federal Republic of Nigeria 1960, 1979, and 1999, and a breach of it in trials or adjudication vitiates the proceedings rendering the same null and void and of no effect. Any judgment which is given without due compliance and which has breached fundamental right of fair hearing is a nullity and is capable of being set aside either by the court that gave it or by an appellate court. See Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) 290 Daduwa v. Okorodudu (1976) 9 – 10 SC 329, Amadi v. Thomas Aplin & Co. Ltd. (1972) 4 SC 228. Sadau v. Kadir (1956) 1 FSC 39, (1956) 1 SCNLR 93. But a party to a legal dispute cannot claim breach of fair hearing where he has wilfully absented himself from the hearing or failed to give evidence when called upon to do so. That once a trial has commenced after the issues have been joined at the pleadings, there is fair hearing when a party refuses or neglects to take part in the proceedings. The duty of the court is to provide a level ground and give every body an environment within which to ventilate its claims and defences. In this judgment, I have recounted how the respondents abandoned the trial and disappeared. Pleadings, not being human beings, have no mouth to speak in court. And they speak through witnesses. If witnesses do not narrate them in court, they remain moribund, if not dead at all times and for all times to the procedural disadvantage of the owner, in this con, the respondents. It is elementary law that the rules or principles of equity help only the vigilant and they do not assist an indolent party who fails to pursue his right diligently and within a reasonable time. Where this happened, the courts regard such delay or indolence of the party either as fatal to his case or as amounting to a waiver of his right under the maxim that equity helps only the vigilant. But it must be emphasized that failure to serve a hearing notice where the service of hearing notice is required, renders null and void any order made against the party who should have been served with the process. See Madukolu v. Nkemdilim (1962) 2 SCNLR 341. Again where a court adjourns a case beyond a date when the litigants have notice of the hearing of the case, the court has a duty to notify the parties of the subsequent adjournment. Whenever the court adjourns a matter for want of service, the adjourned date should be endorsed on the process and fresh service attempted unless it be shown that hearing notice and the service thereof has been effected before the adjournment. By the undisputed facts of this case, the respondents were aware of the adjourned date and indeed the respondents asked for and were granted adjournment to continue with their case. The respondents deliberately neglected and abandoned their defences to the action, they have themselves to blame as the Court of Appeal stated. In my view, the Court of Appeal acted erroneously when they held that the respondent were under the circumstances of this case, entitled to be told of the adjourned date. The respondents were absolutely to blame. The Court of Appeal was in error to have held that the trial Judge was wrong to have exercised his discretion to close the case of the respondents when they failed to appear in court. When it was the respondents who asked for and were granted an adjournment to appear in court in a certain date to prosecute their claims before the Court. They refused to appear in court and had failed to find out what was happening in the court. They simply abandoned their case and accordingly the respondents were not entitled to fresh hearing date under the circumstances. I accordingly resolve the issue in favour of the appellants. This was the only issue upon which the respondents succeeded in the Court of Appeal and it is only the legitimate and central issue of the appeal. Having resolved the issue in favour of the appellant, there is no need or necessity to discuss the remaining issue. Suffice it for me to merely state, that the appeal is allowed, the judgment and order of the Court of Appeal in this matter is set aside and in its place, the decision of the trial court is restored. The appellant is entitled to costs both at the court below and this court assessed at N7,500.00 and N10,000.00 respectively jointly and severally against the respondents.
SC.423/2001
