Felix Okoroike & Anor V. Lambert Igbokwe (2000)
LawGlobal-Hub Lead Judgment Report
OGEBE, J.C.A.
The Appellants sued the Respondent in the Customary Court of Eziama Ikeduru seeking a declaration that they are entitled to the customary right of occupancy to a piece of land known as ‘Ala onu Nkoro’, trespass and injunction. The Appellants gave evidence and closed their case.
When it was the turn of the Respondent to open his defence, the learned Counsel for him wrote a letter to the court enclosing a photostat copy of an excuse duty certificate which placed him on bed rest for 21 days. He asked for an adjournment. The Respondent himself was not in court.
The learned Counsel for the Appellants opposed the application for adjournment and the court closed the case of the Respondent and gave judgment in favour of the appellants.
The respondent appealed to the Customary Court of Appeal, Imo State, and one of the grounds of appeal alleged that the respondent was not given fair hearing. The Customary Court of Appeal allowed the appeal only on the ground that the Respondent was not given fair hearing. It ordered a retrial before another Customary Court.
Dissatisfied with that decision, the Appellants have appealed to this Court and in accordance with the rules of court, the learned Counsel for them filed a brief of argument in which he identified two issues for determination as follows:
“1. Whether the Customary Court of Appeal Imo State sitting at Owerri was right in holding that the defendant/respondent was not given fair hearing in view of the surrounding circumstances of this case?.
- Whether it was right for the Customary Court of Appeal Imo State sitting at Owerri to decide this appeal on one issue only when there were five issues argued at the hearing?”.
The Respondent also filed a brief of argument and identified the following two issues for determination.
“1. Whether the Imo State Customary Court of Appeal was wrong in holding that the respondent was not given fair hearing and order a re-trial of the case?.
- Whether the Appellant suffered any injustice or miscarriage of justice by the order for a re-trial by the Customary Court of Appeal?”
The 2nd issue by the Respondent does not arise from any of the grounds of appeal. It is the cardinal principle of brief writing that an issue that does not arise from any of the grounds of appeal is not a proper issue and must be struck out. See the following cases: Guinness (Nig.) Ltd v. Agoma (1992) 7 NWLR (Pt. 256) 728 and A. G. Anambra State v. Eboh (1992) 1 NWLR (Pt. 218) 491. Accordingly, this issue by the respondent is hereby struck out.
By virtue of S.224(1) of the 1979 Constitution, an appeal shall lie from decisions of the Customary Court of Appeal of a State to the Court of Appeal as of right in any civil proceedings with respect to any question of customary law and such other matters as may be prescribed by an Act of the National Assembly. It is arguable whether or not issues raised in this appeal are questions of customary law.
The 2nd issue formulated by the Appellants as to whether or not it was right for the Customary Court of Appeal to decide the appeal on one issue only when they were five issues argued before it is certainly not a question of customary law.
I shall therefore not entertain it.
The 1st issue of fair hearing is not only a constitutional issue, it is also a principle of English Law as well as customary law. It is fundamental to any kind of hearing whether under English law or customary law. I shall therefore decide this appeal on this issue only.
The learned Counsel for the Appellants submitted that the Customary Court of Appeal was wrong in holding that the respondent was not given fair hearing by the trial Customary Court without considering the history of the case. He said that the Respondent consistently delayed the hearing of matter before the trial Court and the learned Counsel for him sent only a Photostat copy of sick leave certificate on the day the defence was open. He urged the court to hold that the respondent was given fair hearing by the trial Court. He relied on the case of Otapo v. Sunmonu (1987) 5 SCNJ 57; (1987) 2 NWLR (Pt. 58) 587.
The learned Counsel for the Respondent submitted that the Customary Court of Appeal was right in holding that the Respondent was not given fair hearing by the trial Court. He argued that the trial Court in spite of the application before it for an adjournment backed by medical report refused to grant an adjournment, closed the Respondent’s defence and gave judgment in favour of the Appellants without hearing the Respondent’s defence at all. This, in his submission, amounted to a denial of fair hearing. He too relied on the case of Otapo v. Sunmonu (supra).
The question of fair hearing is fundamental to the administration of justice in any civilized society. It is guaranteed in S. 36(1) of the 1999 Constitution which reads:
“36(1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”.
In the case of Akoh v.Abuh (1988) 3 NWLR (Pt. 85) 969, the Supreme Court expressed the view that the fair trial or fair hearing is a fundamental prerequisite for a just determination of disputes between parties.
The facts of this case are relatively simple. When the case came up before the trial Customary Court on the 6th of June, 1991, the Respondent and his counsel were not in court but there was an application in writing to the court with an excuse duty certificate for 21 days in respect of the Respondent’s counsel who was said to I be sick. The Appellants’ Counsel opposed the application for adjournment vehemently and the trial Court in a short ruling upheld the submission of the Appellants’ Counsel, closed the case of the Respondent and promptly adjourned the matter for judgment. The judgment was given on the 10th June, 1991 in favour of the Appellants.
The Customary Court of Appeal, Imo State set aside this judgment on the ground that the Respondent was not given a fair hearing.
Why was the trial Court so anxious to dispose of the matter when there was an application before it for an adjournment because of the sickness of the learned Counsel for the Respondent? Even if the trial Court felt that the learned Counsel was playing a trick, should it not have adjourned the matter so that the Respondent could be given a chance to secure the services of another counselor decide what to do with his defence? These are pertinent questions that call for an answer. The trial Court threw caution overboard and hurriedly closed the Respondent’s case, thus permanently shutting him out from a serious dispute involving land.
I agree entirely with the decision of the Customary Court of Appeal that the Respondent was not given a fair hearing. I therefore hold that that decision of the Customary Court of Appeal is right and I have no cause whatsoever to disturb it. Accordingly, I dismiss this appeal as unmeritorious and affirm the decision of the Customary Court of Appeal, Imo State. The Appellants shall pay costs of N5,000.00 to the Respondent.
Other Citations: (2000)LCN/0818(CA)
