Governor of Ekiti State & Ors. V. Prince James Adeleke Osayomi & Ors. (2004)
LawGlobal-Hub Lead Judgment Report
MIKA’ILU, J.C.A.
By way of writ of summons, an action was instituted against the appellants as defendants by the respondents as plaintiffs at Ondo State High Court. The claim against the appellants was for the following:
- A declaration that from time immemorial and up till time of taking this action, the traditional kingmakers for the selection and appointment of Olosan of Osan are Chief Obalapa, Chief Odojin and Chief Obaoye of Osan.
- A declaration that the appointment of the 6th defendant Julius Ogunkayo, as a warrant Chief by the 1st defendant, whilst the incumbent holder, Chief Totime Adeoye Obalapa is alive and capable, ready and willing to perform such functions is unwarranted and against the Native Law and Custom of Osan-Ekiti.
- A declaration that the 1st plaintiff has been duly selected by the majority of the Kingmakers as the Olosan of Osan since 1988 in accordance with the Native Law and Custom of Osan-Ekiti.
- A declaration that the purported approval by the 1st 3rd defendants of the selection of the 4th defendant Yusuf Babatunde Anisu as the Olosan of Osan-Ekiti as against the Native Law, tradition and custom of Osan, irregular, unconstitutional and therefore illegal null and void.
- A declaration that the 4th defendant, Yusuf Babatunde Anisu is not a prince by birth hence he is not eligible to the throne of Olosan of Osan Ekiti.
- An injunction restraining the 4th defendant from presenting himself to anyone for (sic) installation as the Olosan of Osan-Ekiti or performing the duties and or functions of the Olosan or wearing (sic) the regalia of the said Olosan of Osan chieftaincy.
- An injunction restraining the 1st – 3rd defendants, their agents, servants or their privies from giving any further recognition for the appointment of the 4th defendant as the Olosan of Osan-Ekiti.
The above is as per the writ of summons in suit No.HCJ/20/93. At the trial, five witnesses testified for the respondents/plaintiffs. The case for the defence was not heard. Counsel for the respondents at the end also addressed the trial court while neither the appellants/defendants addressed the court or their counsel. The trial court entered judgment in favour of the respondents as per all the reliefs sought in their writ of summons. The judgment was delivered by Hon. Justice Sir L.B. Awe, Judge, on 18th June, 1998.
The 1st and 2nd defendants/appellants were dissatisfied with the said judgment and therefore filed appeal before this court on five grounds. Likewise the 3rd – 5th defendants/appellants being dissatisfied filed their appeal before this court on seven grounds.
Briefs have been filed and exchanged. When this appeal came up for hearing, the learned Counsel for the 1st and 2nd appellants, A.A. Morakinyo, Deputy Director Civil Litigation, Ekiti State, adopted the brief of argument of the 1st and 2nd appellants deemed filed on 6th November, 2003. The learned counsel for the 3rd – 5th appellants adopted the brief of argument of the 3rd – 5th appellants deemed filed on 6th November, 2003 and their reply brief deemed filed on 22nd April, 2004. The learned Counsel for the respondent, K.B.A. Badmus, Esq., adopted the respondents’ brief of argument to the 1st and 2nd appellants’ brief and respondents’ brief of argument to 3rd – 5th appellants’ brief of argument, both of 4th February, 2004 and 27th January, 2004. There are two appeals in this matter.
In the respondents’ brief of argument to the 1st and 2nd appellants’ brief a preliminary objection has been raised on ground 4 of the grounds of appeal of the 1st and 2nd appellants which reads as follows:
“4. The learned trial Judge erred in law by giving judgment to the plaintiffs on the writ of summons when many claims therein been (sic) destroyed under cross-examination of the plaintiffs’ witnesses.”
The ground for the preliminary objection is that the above ground violates the provisions of Order 3 rule 2(2) of the Court of Appeal Rules, 2002. He avers that it failed to state the particulars and the nature of the error in law alleged as required by the rules of this court. He has contended that this failure renders the ground vague and therefore liable to be struck-out. Similarly, preliminary objection has been raised in respect of ground 3 of the 1st and 2nd appellants’ grounds of appeal on the basis that none of the three issues formulated by the 1st and 2nd appellants in their brief covers the ground. That ground 3 being not covered by an issue is deemed abandoned and should be struck-out. It has been counter-argued by the learned Counsel for the appellants that ground 4 has in plain and comprehensible words revealed all the necessary, relevant and detailed particulars of errors or misdirection complained or alleged. That they are all embodied in the main ground. He has further submitted the relevance of purpose of particulars or details have been adequately met in the main ground as envisaged or intended in the details. He has cited a portion of the ground as follows:
“… When many of the claims therein has been destroyed under cross-examination of the plaintiffs and their witnesses.”
He avers that courts look at substance rather than form. Thus it is the purpose and functions of words employed in the couching of this ground of appeal that is to be considered. He has relied on the Military Administrator of Benue State & 7 Ors. v. Ulegede & 1 Anr. (2001) 17 NWLR (Pt. 741) 194; 202-203 paras. G-B where Karibi-Whyte, JSC stated as follows:
“It seems to me that although the particulars of error or misdirection are usually appended to the grounds in the interest of clarity. The provisions of rule 2(2) merely states that they shall be stated clearly. It follows, however, that as long as the particulars of error or misdirection alleged had been incorporated in the of the ground of appeal, and had been clearly stated in the absence of any heading indication particulars of error will not affect the validity of the ground of appeal”
He has added that the Supreme Court further held that such objections or application as made by the respondents in this instance;
“Will merely be servile to form rather than substance.
It is competent to incorporate particulars or error in the body of the ground of appeal. Such a practice does not contravene the provision of Order 3 rule 2(2) and does not render the ground incompetent.”
Refers also to Nsirim v. Nsirim (1990) 3 NWLR (Pt. 138) 285; (1990) 5 SCNJ 174; Akanbi v. Raji (1998) 12 NWLR (Pt. 578) 360. He has opined that the reliance on L.S.D.P C. v. Banire (1992) 5 NWLR (Pt. 243) 620; 635 and Agbonkpolor v. Adubor (2001) 6 NWLR (Pt. 710) 716; 725, is misconceived as they do not apply to the situation in this application. That Order 3 rule 2(2) and (4) never made such prepositions. The learned Counsel for the appellants has not made any counter-argument in respect of ground of appeal No.3. I find it difficult to agree with the learned Counsel for the appellants on ground 4. The ground speaks of ‘many of the claims’ without any particulars of the claims. It has not also particularized any evidence of witnesses under cross-examination the ground is talking about. It is clear from the wording of Order 3 rule 2(2) that where a ground of appeal alleges misdirection or error in law, the particulars and the nature of the misdirection or error shall be clearly stated. The case of the Military Administrator of Benue State & 7 Ors. v. Ulegbe & 1 Anr. (supra) cited by the learned Counsel for the appellants envisages a situation where the particulars are made clear within the wording of the ground of appeal unlike in our case where the particulars have not been made clear. In effect, the ground of appeal No.4 being without clear particulars is vague. Vagueness of ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood. It may also be considered vague when the complaint therein is not defined in relation to the subject or it is not particularized or that the particulars are clearly irrelevant. Refer to C.B.N. v. Okojie (2002) 8 NWLR (Pt.768) 48. In our case the complain of the appellants under ground 3 has not been particularized even with its wording. It is therefore incompetent and liable to be struck out. The preliminary objection on it is upheld. It is also trite that a ground of appeal upon which no issue has been formulated is deemed abandoned. Refers to Ogunlade v. Adeleye (1992) 8 NWLR (Pt. 260) 409; (1992) 10 NSCJ 58. Ground of appeal No.3 in this case is without any issue formulated on it and is therefore deemed abandoned. It is therefore struck out. The preliminary objection in this regard is therefore upheld.
I will now proceed with the appeal of the 1st and 2nd defendants/appellants’ appeal.
(1) Whether the trial court was correct to have commenced the hearing of the case and proceeded there with to give judgment before pleadings were concluded or closed (ground 1).
On this issue, the learned Counsel for the 1st and 2nd appellants has averred that there is abundant evidence on record to show that when the learned trial Judge acceded to the demand of the plaintiffs’ counsel to open his case and call his witnesses on the 20th January, 1998, it was only the statement of claim and the 3rd – 5th defendants’ statement of defence that were before the court. That the 1st and 2nd defendants had not filed their statement of defence and there was nothing on record to show that the plaintiffs filed any application to dispense with the statement of defence of the 1st and 2nd defendants to have warranted the commencement of the trial and the eventual foreclosure of the defendants from been heard in the suit. He has added that none of the five defendants had any counsel in court when the learned trial Judge ordered the commencement of the suit on January 2nd, 1998. He has submitted that it is trite that cases are considered ripe for hearing only at the close of pleadings by parties to such suit. He has opined that any contrary approach to the established and known procedure to our rules of practice shall negate the cardinal purpose of rules of our law practice. He has concluded that this judgment is wrong and very perverse urging this court to allow the appeal on the 1st issue.
The same issue has been formulated in the respondents’ brief of argument to the 1st and 2nd appellants’ brief. Therein the counter-argument is that on 9th January, 1996, the respondents filed motion for extension of time within which to file their statement of claim. On 8th March, 1996, the trial court granted an extension of time to the respondents to file their statement of claim and deemed the same as properly filed and served. That on 1st July, 1996, respondents filed a motion on notice pursuant to Order 27 rule 8(1) of the Ondo State Rules of the High Court (the then applicable Rules) praying for judgment in default of defence against the defendants.
The motion was withdrawn on 7th October, 1996, when the trial court granted the 3rd – 5th appellants’ prayer for extension of time to file their statement of defence. On 18th November, 1996, the respondents’ counsel applied to have the case set down for trial.
The matter was set down for hearing on 19th May, 1997, but hearing did not actually commence until 20th January, 1998, according to him, due to delay tactics of the appellants. That all along, counsel to the 1st and 2nd appellants was aware of the pendency of the suit but chose to stay away from the court after their application to discharge an order of interlocutory injunction made against the defendants was refused by the court on 14th August, 1998. That there was no appearance for the 1st and 2nd appellants until 16th July, 1996. The learned Counsel for the respondents has further clarified that after the time allowed by law for the 1st and 2nd appellants to file their statement of defence had expired, and the respondents had filed an application for judgment in default of defence, and the application for judgment in default of defence withdrawn because the claims against the defendants were not severable, there was no further obligation on the respondents, under the rules of the trial court, to file a further application to dispense with the statement of defence of the 1st and 2nd appellants before hearing could commence in the suit. He has added that the claims of the respondents being for declarations, it is incumbent on them to call evidence to prove their claims. He has concluded that on the facts and circumstances of this case the learned trial Judge was right when he ruled on 20th January, 1998, that the case was “over ripe” for hearing. He prays this court to resolve this issue in favour of the respondents against the 1st and 2nd appellants.
The above averment of the learned Counsel for the respondents has clearly disclosed the circumstances in the conduct of proceedings in this case. The proceedings of 20th January, 1998 are on page 397A of the record of proceedings of the trial court. It is clear from the record that on that date when the case was called, the 1st and 2nd appellants and their counsel were not in court. The 3rd defendant who was the only defendant in court informed the court that his counsel had promised to be in court that morning. Therefore, the case was called up again and the 1st and 2nd appellants and their counsel were not in court. Then the learned Counsel for the respondents, Alhaji K.B.A. Badmus, reminded the trial court that the case was for hearing that date. He stated that all his witnesses were in court and he was ready to go on. The trial court gave its short ruling which reads as follows:
“It is now 10.22 a.m. and from all indications, the counsel for 3rd defendant may not turn up since. Since this case is over ripe for hearing and in view of the fact that the plaintiffs are herewith their witnesses, they should now open their case.”
The trial proceeded by hearing the testimony of PW1. From the said proceedings besides showing that the 3rd defendant present and ‘all other defendants’ absent’ nothing had been said in respect of the 1st and 2nd appellants or their counsel. It is to be noted that the 1st and 2nd appellants are not contending that they had no notice that the case was coming up for hearing that date. They are contending that they were not in court and they had not filed their statement of defence. They are also not contending that as at that date they were within their time of filing their statement of defence. There was no complain by the 1st and 2nd appellants before the trial court on question of starting to hear the case before they filed their statement of defence. Instead, at the further proceedings conducted on 11th March, 1998, their counsel Morakinyo A. A., Senior Legal Officer in the Ministry of Justice, Ekiti State, said he had a motion on notice for extension of time to file statement of defence on behalf of the 1st and 2nd defendants. Though the learned counsel for the respondents, K.B. Badmus objected on the basis that it was an abuse of process of court as similar application filed by them on 30th July, 1996, was neither argued nor withdrawn, Mr. Akeju who appealed for the 3rd to 5th appellants, stated that the position was that the earlier application would be deemed to have been abandoned. Then Morakinyo, Esq., agreed with him. The trial court in its ruling deemed the earlier application as abandoned. The latter application was moved and granted. The 1st and 2nd defendants were granted 14 days within which to file their joint statement of defence. It is trite law that non-compliance with rules of court is deemed to be waived once a party entitled to complain about the breach takes a furtherstep in the proceeding. Refer to Jozebson Industries Co. Ltd. v. Lauwers Import-Export (1988) 3 NWLR (Pt.83) 429; (1988) 7 SCNJ 93. In our case, the 1st and 2nd appellants did not complain to the trial court about its starting to hear the case before they filed their statement of defence and moreover at a later date, made necessary application for the extension of time to file their statement of defence which was granted by the trial court. They cannot now be heard to complain. All the averments of the learned Counsel for the 1st and 2nd appellants on this issue fail.
The 2nd issue as framed by the 1st and 2nd appellants’ case reads-
“(2) Whether or not the trial Judge was correct by his refusal to give a hearing viva voce to all the parties before judgment.” (ground 2)
It is the submission of the learned Counsel for the 1st and 2nd appellants that a party to a case is entitled to be heard and must be given the opportunity to be heard before a decision can be given against him. He refers to Gen. Oil v. Ogunyade (1997) 4 NWLR (Pt. 501) 613; 622. He argues that on 11th March, 1998, the 1st and 2nd defendants’ counsel was granted a 14 days leave for within which their statement of defence could be filed. That the trial Judge immediately after granting the leave to the 1st and 2nd defendants there and then called on the plaintiffs to put their witnesses in the box for continuation of evidence in the case. He has contended that the trial Judge ought not to have allowed the matter to continue on that same day. That in doing justice in the circumstances the trial Judge ought to have adjourned the case pending the regularization of the 1st and 2nd defendants in the case and not an adjournment to 12th March, 1998, for further hearing. He has submitted that this decision is a denial of fair hearing, fair trial and above all a rape on our cherished judicial system culminating in injustice done to the 1st and 2nd appellants. He has added that the trial Judge who had earlier on the 11th March, 1998, granted a 14 day leave to the 1st and 2nd defendants to file and serve their statement of defence reversed this order suo motu on 12th March, 1998, by deeming an exhibited copy of the statement of defence annexed to 1st and 2nd defendants’ motion paper as properly filed and served in the absence of the 1st and 2nd defendants and their counsel. He has further averred that the 1st and 2nd appellants were ready to defend their case with all seriousness. That on page 452 of the record their counsel applied for leave of the court to amend the exhibited copy of their statement of defence which the court suo motu deemed as properly filed and served on the 12th March, 1998. This application was dismissed. Also, on page 466 of the record and page 482 of the record both the counsel for the 1st and 2nd defendants applied for leave of court to open their defence in the case. The trial Judge refused the applications. That judgment in the main suit was delivered on the 18th June, 1998, without counsel for all the defendants calling evidence. He has submitted that the trial Judge was wrong in coming to conclusion that the defendants had no reasonable defence to offer. He has reiterated that everybody is entitled to a fair hearing and there should be no over-speeding and no stampeding in order to enable the trial court arrive at a just decision. He refers to State v. Ajayi (1997) 5 NWLR (Pt. 505) 382; 400. He has maintained that it is not in dispute that the 1st and 2nd defendants and indeed 3rd and 5th defendants filed statements of defendant. It is not also in dispute that the learned Counsel to the 1st and 2nd defendants wrote a letter to the court seeking for an adjournment to get across to his witness on 25th May, 1998. He suggested a date subject to convenience of the court. But in a strange manner, the trial Judge closed the case of the defendants thereby denying them any opportunity to open their defence. He has concluded that the failure of the trial Judge to allow the 1st and 2nd defendants and indeed all the defendants to call evidence in their suit is a breach of one of the propositions which are so fundamental to our law and our system of justice and this has occasioned a serious injustice done to the appellants. He refers to P.D.P. v. INEC (1999) 11 NWLR (Pt. 626) 200; 265. He urges this court to allow this appeal.
The learned Counsel for the respondent has in this regard submitted that the doctrine of fair hearing around which the 2nd issue revolves is designed to ensure fairness and opportunity before a decision is taken against another. That it does not operate to take away discretion where they otherwise exist nor designed to be an instrument in the hand of a party whose purpose is to frustrate the course of justice. He has opined that the 1st and 2nd defendants were given adequate opportunities to present their case but they chose not to make use of the same. That there is therefore no breach of the rules of fair hearing and rules of natural justice as trumpeted by the 1st and 2nd appellants. He relies on Jonason Triangles Ltd. v. C.M.& P. Ltd. (2002) 15 NWLR (Pt. 789) 176, 192 & 193, indicating that the Supreme Court affirmed the judgment of this court and held that there was no breach of the appellants’ right to fair hearing in circumstances similar to the facts of this case in the following words:
“The appellants by their conduct have voluntarily opted out of the trial because they had adequate information of the dates, the venue of trial and had time to react to the order granting adjournment, but they chose to keep mute surely there can be no better notification to parties than the one communicated to them personally in the open court.”
With the above, the counsel has argued that in the instant appeal, the 1st and 2nd appellants’ counsel was in court on the 5th May, 1998, when the case was adjourned to 25th and 26th May, 1998, for the plaintiffs to close their case and the defendants/appellants to open their defence. On 25th May, 1998 only 3rd – 5th defendants/appellants, without their counsel, and the counsel for 1st and 2nd appellants were present. At their instance, the case was adjourned to the next day, 26th May, 1998, which had earlier on been agreed upon by all the parties and their counsel. On the said 26th May, 1998, none of the defendants/appellants or their counsel was in court.
Only counsel appearing for the 1st and 2nd defendants wrote very insulting letter to the court asking for adjournment of one month to enable him prepare his witnesses. He maintains that it will not now lie in their mouths to say that they were not given adequate opportunity to present their case. He has relied on Muhammed v. Ekpelai (2001) 6 NWLR (Pt. 710) 700, 709 -710 citing the statements of this court as follows:
“… the 3rd defendant/appellant should have been more conscientious and vigilant in defending his case, for even if his counsel was not in court on that day he should have been, to follow the progress of the case …”
and
“…The business of the court is indeed a serious one and must be seen as such by all and sundry if our judicial system is to be accorded its rightful place in the charter that bounds us together as an orderly society. No one is entitled to treat the proceedings of the court over his rights and obligations with disdain or a passive indifference. This court, in particular, will not indulge any party who has been passive or indolent in regard to its proceedings to the detriment of any other party or to the speedy disposal of cases before it.”
He has argued that on 11th March, 1998, when the 1st and 2nd appellants moved their application for extension of time to file their statement of defence the case was for further hearing before the trial court as the trial had actually commenced on 20th January, 1998.
That on 11th March, 1998, when their counsel moved the application for extension of time to file their statement of defence, the statement of defence was actually attached to the motion and was therefore before the court. That the order to file statement of defence within 14 days was therefore mere consequential. That further trial could go on that date even without statement of defence of the 1st and 2nd defendants. The time to wait for them to file their statement of defence had long expired and the court had gone beyond that stage when it granted the plaintiffs’ application to set down the case for hearing and the hearing had actually commenced.
Thus the above, the arguments and counter arguments of the learned Counsel for the 1st and 2nd appellants and the learned Counsel for the respondent on the fundamental issue raised which is the question right of the 1st and 2nd appellants to be heard. From the averments on both sides this complain of the 1st and 2nd appellants is clearly directed to the proceedings of the trial court of 11th March, 1998 to its judgment. It is clear from the proceedings of the trial court, pages 426-227. On 11th March, 1998, Mr. Morakinyo, a Senior Legal Officer, Ministry of Justice Ekiti State, who was appearing for the 1st and 2nd defendants (now 1st and 2nd appellants), informed the trial court he had a motion to argue. The motion was for an extension of time to file a statement of defence of the 1st and 2nd defendants. Though there was objection based on pendency of similar motion it was however agreed by the trial court that it could be argued and the earlier motion be deemed as abandoned. Here it is important to reproduce the prayers in the said motion which was dated 10th March, 1998. As per page 418 of the record the motion was for the following prayers:
“(a) For extension of time within which the 1st and 2nd defendants may file their statement of defence to this suit, the time allowed having lapsed.
(b) An order deeming the statement of defence of the 1st and 2nd defendants/applicants attached as exhibit ‘A’ as properly filed and served.
And for such further order/or other orders this Honourable Court may deem fit to make in the circumstances.”
The said motion having been moved the trial court gave its short ruling on page 427 as follows:
“Ruling
The application is not opposed. Order as prayed. The 1st and 2nd defendants are allowed 14 days within which to file their joint statement of defence.”
Immediately after that PW1, who had earlier testified was introduced for cross-examination. Both counsel for the defendants had no cross-examination in respect of testimony of PW1. PW2 was called to testify. After his evidence-in-chief the learned Counsel for the 1st and 2nd appellants, Mr. Morakinyo, informed the court that he was not ready for cross-examination and he was asking for adjournment. Mr. Akeju appearing for the 3rd – 5th defendants also asked for a short adjournment. He said he needed time to see the defence of 1st and 2nd defendants in respect of which time had been extended. Mr. Badmus appearing for the plaintiffs objected to their request for adjournment. He informed the trial court that the 1st and 2nd defendants had annexed the proposed statement of defence and the case had been slated for that date and the following date. The short ruling of the trial court in this regard appears on page 428 of the record as follows:
“This is a part-heard case scheduled for today and tomorrow. The case must go on because to ask for an adjournment mid way is to delay the hearing of this case which will occasion a waste of court’s time and energy.”
The PW2 was put back into the witness box for cross-examination. Mr. Akeju appearing for the 3rd – 5th defendants said he had no cross-examination. Nothing from the record thereafter to show whether the learned Counsel for the 1st and 2nd defendants cross-examined or stated he had no cross-examination on the testimony of PW2 or that he refused to cross-examine. Just the trial court proceeded to take the evidence of PW3. At the end of the evidence of PW3, the learned Counsel for the 1st and 2nd defendants was however called to cross-examine PW3 and he informed the court that he was still handicapped. PW3 having been cross-examined by the counsel for 3rd to 5th defendants, the PW4 gave evidence-in-chief. The learned Counsel for the 1st and 2nd defendants when called up for cross-examination informed the court that there was nothing he could do in that position. The learned Counsel for the plaintiff informed the court he had one more witness to call but he was getting tired. There and then the trial court adjourned the matter to 12th March, 1998 for further hearing.
When the case came up on 12th March, 1998, the 1st and 2nd defendants were absent as well as their counsel. The trial court made the following ‘observation’.
“Observation
There was an error in the order made by this court in respect of the interlocutory motion for leave to file the statement of defence in respect of 1st and 2nd defendants/respondents.
Since the statement of defence was filed and exhibited and marked ‘A’, the proper order should be order as prayed. That order shall therefore read.
‘Order as prayed’ and it is hereby so ordered.”
With the above, the learned trial Court proceeded to hear PW5. At the end of his evidence-in-chief the case was again adjourned to 7th and 8th April, 1998 for further hearing.
From the record, there is nothing to show that the trial court sat on 7th and 8th April, 1998. However, the record shows that the case came up on 9th April, 1998, with all the defendants, except the 3rd defendant absent. Counsel to the 1st and 2nd defendants was also not in court. A letter was written, however, by the counsel for the 3rd to 5th defendants. The case was adjourned to 5th May, 1998, for further hearing with an order that hearing notice be served on the other absent defendants. When the case came up on 5th May, 1998 the plaintiff was called up for cross-examination by the learned counsel for the 1st and 2nd defendants who was present. The learned Counsel for the 1st and 2nd defendants informed the trial court he would conduct his cross-examination later. The 1st plaintiff was shown to be PW1. After cross-examination by the 3rd to 5th defendants’ counsel cross-examined the PW1. Then, PW5 who appeared on subpoena was called up. However, the case was adjourned to 25th and 20th May, 1998 for further hearing.
When the case came up on 25th May, 1998, the learned Counsel for the 1st and 2nd defendants was in court. He moved a motion to amend pages 4 and 7 of the statement of defence and add fresh paragraphs 8 and 9. The objection raised by the learned Counsel for the plaintiffs was upheld and the motion was dismissed. PW5 was called up and through him some documents were admitted in evidence. The case for the plaintiffs was closed and the case for defence was opened. The learned counsel for 1st and 2nd defendants asked for a fairly long adjournment for about a month to enable him put his house in order. However, the trial court as the case was slated for hearing on 25th and 26th May, 1998, adjourned the case to 26th May, 1998 for defence.
Lastly, when the case came up on 26th May, 1998, the 1st and 2nd defendants were not in court. However, their counsel wrote to the trial court informing it of his difficulty in getting witnesses promising to come, when he was able to get any of the witnesses. The learned Counsel for the plaintiffs requested for a date to address the court as the plaintiffs had closed their case. The trial court delivered its ruling in this regard in the following words:
“Ruling
From all indications, it would appear that the defendants have no defence to offer – I therefore take it that they have closed their defence more so when there was no indication from the learned Counsel who represents the 1st and 2nd defendants yesterday that he would not be coming today.
In order to avoid wastage of more time as the whole record of proceedings in the matter clearly shows. I shall be giving the learned counsel one hour to warm up to give his final address as this case is slated for today and tomorrow. I do not intend to waste more time. Case stood down for one hour.” Refer to page 463 of the record.
The learned Counsel for the plaintiff later in the day addressed the court and the case was adjourned to 18th June, 1998 for judgment.
When the case came up on the 18th day of June, 1998, the learned Counsel for the 1st and 2nd defendants was in court. He came up with motions No. HIJ/M.42/98 and No. HIJ/M.44/98. By the former the 1st and 2nd defendants were seeking for one order of the trial court granting them leave to be heard by leading evidence of their defence. By the latter they were seeking for an order of the trial court staying further proceedings in the case pending the determination of an appeal filed on 21st June, 1998 by them against the ruling of the trial court delivered on 25th May, 1998. Refer to pages 486 and 472 of the record. The two applications were opposed by the learned Counsel for the plaintiffs. The trial court in its ruling dismissed the ‘two applications’ being ‘incompatible and contradictory’. Then the trial court delivered its judgment.
It is based upon the above; the learned Counsel for the 1st and 2nd appellants has raised a fundamental issue of right of fair hearing. He has submitted that the fundamental duty of the court is to do justice between the parties before it and that it is for this assurance that the fundamental principle of the administration of natural justice as enunciated in the principle of audi alteram partem is embedded and provided for under section 36 of the Constitution of the Federal Republic of Nigeria, 1999. He has added that a party to a cause is entitled to be heard and must be given the opportunity to be heard before a decision can be given against him, relying on Gen. Oil v. Ogunlade (supra). In accepting this submission I reiterate that it is the rule of natural justice that in the resolution of any dispute the parties to the dispute must be accorded a fair hearing. This rule has two arms as follows:
(a) audi alteram partem (hear the other party)
(b) nemo judex incausa sua (no one should be a Judge in his own cause).
This rule of natural justice is also a constitutional right of parties to a dispute as it has been entrenched under section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 (and now section 36(1) of 1999 Constitution). Thus, it has been constitutionally guaranteed that where a person’s legal rights and or obligations are called into question, he shall be afforded full opportunity to be heard before any adverse decision is taken against him touching on such rights or obligations. Infringement of the right to fair hearing may undoubtedly result in nullifying the proceedings. Refer to Bakare v. L.S.C.S. (1992) 8 NWLR (Pt. 262) 641; Orugbo v. Una (2002) 16 NWLR (Pt. 792) 175. I also agree with the learned Counsel for the 1st and 2nd appellants that every party is entitled to a fair hearing and that there should be no over speeding and no stampeding in order to enable the trial court arrive at a just decision I add that justice delayed is justice denied but justice rushed may result into justice being crushed. In this case when the trial court granted the 1st and 2nd defendants a 14 days leave within which to file their statement of defence on 11th March, 1998, the following day it suo motu in the absence of the 1st and 2nd defendants and without hearing any party reversed its decision by deeming a statement of defence attached to their motion as properly filed and served. The trial court might have granted its earlier decision due to oversight but nonetheless it should have not reversed the decision without hearing the 1st and 2nd defendants. The trial court was wrong in doing so. On 26th May, 1998, the case came up for defence. The learned Counsel for the appellants, though absent, wrote a letter to the court on his difficulty to get witnesses, unfortunately the trial court held that from ‘all indications’ it would appear that the defendants had no defence to offer. The trial court closed their defence as their counsel did not inform the court the previous day that he would not be coming that date. The trial court should have diverted its mind to the fact that the previous day their counsel wanted an adjournment to prepare his house but gave him only a day by adjourning the case to the following day for the defence. With all the attempts of their counsel to be allowed to amend their statement of defence and to be allowed to open their defence the trial court shut him out and proceeded to judgment. In the circumstances, the trial court has undoubtedly not given the 1st and 2nd respondents opportunity of being heard thereby infringing their right to be heard and this has no doubt occasioned miscarriage of justice. On this issue, I find the appeal of the 1st and 2nd appellants has merit. I accordingly allow it. The 3rd issue has been dealt with under the preliminary objection.
In respect of the appeal of the 3rd to 5th appellants five issues have been formulated in the 3rd – 5th defendants/appellants’ brief of argument. I will treat the 1st and 2nd issues together. They read:
“(i) Whether or not the defendants were given adequate opportunities to defend themselves in this case. (Grounds 4, 5, 8, 9 and 10).
(ii) Whether or not the failure of the learned trial Judge to give the defendants opportunity to give final address in this case did not occasion a miscarriage of justice.”
On the 1st issue the averments of the learned Counsel for the 3rd to 5th appellants are similar to those of the learned Counsel for the 1st and 2nd appellants. He has however drawn the attention of this court in respect of the 3rd defendant always being in court till the judgment of the court. He has also referred to the refusal of the trial court to grant adjournment to the counsel of 3rd – 5th defendants on 11th March, 1998 to enable him cross-examine the witnesses heard. That on 25th May, 1998, the 3rd – 5th defendants were in court and informed the court that their counsel had traveled to Benin and asked for adjournment to enable the counsel to attend and to open their defence. But the trial court adjourned the case to the following day. He has averred that this was an attempt to shut them out from presenting their case. That expectedly on 25th May, the trial Judge closed their case without authorizing them to call any witness and called upon the learned counsel to address the court and also adjourned the case for judgment. No date was given to the 3rd – 5th appellants to open their defence. He has reiterated that the adjournment for less than 24 hours by the court on 25th May, 1998 to 26th May, 1988 was meant to shut out the 3rd – 5th defendants because even if they traveled to Benin to bring their counsel back they could not have come back. He has submitted that everybody is entitled to fair hearing and there should be no over-speeding and no stampeding in order to enable the trial court to arrive at a just decision relying on State v. Ajayi (1997) 5 NWLR (Pt. 505) 382; 410. He has added that what the trial court did in this case was to stampede the defendants and thereby deny them of the opportunity to defend their case. On the 2nd issue the learned Counsel has averred that trial court refused the adjournment sought by the appellants and adjourned the case to 26th May, 1998 for the 1st and 2nd appellants to open their defence. On 26th May, 1998 the 3rd – 5th defendants and their counsel were not in court. The trial court closed their case without allowing them to call evidence and called the respondents’ counsel to address the court even though the case was not adjourned for address that date. After his address the trial Judge adjourned the case to 18th June, 1998 for judgment. The learned Counsel has submitted that it was wrong for the trial Judge to take the final address of the respondents on a date when the case was for the defence of 1st and 2nd appellants and it was not adjourned for address that date, 26th May, 1998. He has added that the failure to allow the appellants to give their final address was a breach of the principles of fair hearing and this had occasioned miscarriage of justice. He relies on Duba v. Saleh (1997) 2 NWLR (Pt. 488) 502; 508.
On the other hand, the learned Counsel for the respondents in the respondents’ brief of argument to the 3rd – 5th appellants’ brief of argument has started by challenging the five issues formulated in the 3rd – 5th appellants’ brief. He has contended that the five issues formulated therein are rather prolix and nothing but the subdivisions of one whole. That issue (v) is not a proper issue in this appeal. He avers that having regard to the appeal and grounds of appeal, a resolution of the issue cannot operate to determine the appeal one way or the other. He urges this court to discountenance same. He has submitted that from all the grounds of appeal filed by the 3rd to 5th appellants only one issue calls for determination. That the issue is ‘whether having regards to the facts and circumstances of the case, the appellants were given fair hearing’. I may agree with the learned Counsel for the respondents to the extent that the first four issues are on issues of fair hearing. However, each carried a separate complain and as such this court would consider each. However, I do agree with the learned Counsel for the respondents that resolution of issue (v) cannot operate to determine the appeal one way or the other. The learned Counsel for the 3rd – 5th appellants’ in their reply has only ventured to argue issue (v) I agree with the learned Counsel for the respondent that considering the grounds of appeal and the issues raised and the nature of issue (v) answering the issue (v) will not serve any purpose in this appeal. Undoubtedly, appellate court has legal duty to consider all issues raised before it and an appellant has a co-relatives right to have all issues raised determined, but an issue which does not cover any ground of appeal is a misconceived issue. Also, an issue for determination must not be in the abstract and a court will not venture into answering an issue where it will amount to a mere academic exercise. Refer to Onifade v. Olayiwola & 2 Ors. (1990) 9 NWLR (Pt. 161) 130; (1990) 11 SCNJ 10; R.T.A.F.M. & Anor. v. James & Anor. (1987) 3 NWLR (Pt. 61) 556. In this case it serves no purpose in this appeal to resolve whether the judgment of the trial court was a default judgment or not. Issue (v) is therefore struck out.
On issue of fair hearing, the learned Counsel for the respondents has submitted that the doctrine of fair hearing is designed to ensure fairness and an opportunity to be heard before a decision is taken against another. He has added that it does not operate to take away discretion where they otherwise exist. He has argued that the defendants were given adequate opportunities to present their case but they chose not to make use of the same. He has added that there is therefore no breach of the rules of fair hearing and the rules of natural justice as trumpeted by the 3rd – 5th appellants. He has submitted that in Jonason Triangles Ltd. v. C.M.P. Ltd. (supra) the Supreme Court affirmed the judgment of this court and held that there was no breach of the appellants’ right to fair hearing in circumstances similar to the facts of this case and stated as follows:
“The appellants by their conduct have voluntarily opted out of the trial because they had adequate information of the dates, the venue of trial and had time to react to the order granting adjournment but they chose to keep mute. Surely there can be no better notification to parties than the communication personally in the open court.”
With the above, the learned Counsel has argued that the 3rd-5th appellants and their counsel were in court on 5th May, 1998 when the case was adjourned to 25th and 20th May, 1998, for the plaintiffs to close their case and the defendants/appellants to open their defence. On 25th May, 1998, only 3rd to 5th appellants without their counsel, were in court and at their instance the case was adjourned to the next day 26th May, 1998, which had earlier been agreed upon by all parties and their counsel. That on the said 26th May, 1998, none of the defendants/appellants or their counsel was in court. He has concluded that it does not therefore lie in the mouth of the appellants to say that they were not given adequate opportunities to present their cases. He has relied on Muhammed v. Ekpeli (2001) 6 NWLR (Pt. 710) 700; 709 and 710. He has also averred that the addresses of counsel are designed to assist and guide the court. That cases are not normally decided on addresses but on credible evidence. He has opined that there was no obligation on the trial court to wait for them to give their final address as they absented themselves from the court. He has relied on Muhammed v. Ekpelai (supra) and Merchandani v. Pinheiro (2001) 3 NWLR (Pt.701) 557; 572. His other averments are that when the ‘observation’ was recorded on 12th March, 1998, the counsel for 3rd – 5th appellants was present and the date had earlier been agreed upon for further hearing. That having acquiesced to the “observation” the counsel to the 3rd – 5th appellant cannot now be heard to say that the same worked injustice to them.
Having considered the record of proceedings I find it difficult to agree with the learned Counsel for the respondents. On the 1st issue the main complain of the 3rd to 5th appellants is that on 25th May, 1998, their counsel was not in court and they informed the trial court that he had traveled to Benin and asked for adjournment to enable their counsel attend. Though grant of adjournment is at the discretion of the court such discretion must be exercised judicially and judiciously. The case was adjourned to the following day for them to conduct their defence. I think in the circumstances when their counsel was not in court and only a day was given to them to open their defence while, they asked for adjournment, they had not been given adequate opportunity to conduct their defence. The case of Jonason Triangles Ltd. v. C.M.P. Ltd. (supra) cited by the learned Counsel for the respondent is distinguishable from the present case. Unlike in that case when the parties decided to absent themselves from court, in this case the 3rd to 5th appellants were present in court. They informed the court that their counsel had traveled to Benin and asked for a fairly sufficient time to enable their counsel attend. They were refused adjournment as the adjournment to the following day was as earlier slated. A day would not in such a situation be sufficient time for them in such a situation to conduct their case. On the issue of address by their counsel, the learned Counsel for the respondents has only diverted his mind to their absence. On that date the case was coming up for further hearing and not for address. They were not aware that the case was coming up for address. I do agree with the counsel for the respondents that final addresses of counsel are designed to assist and guide the court.
However right of a party to address the court has been provided under section 258(1) of the Constitution of the Federal Republic of Nigeria, 1979, the then applicable law. Undoubtedly where the facts of a case are straightforward and undisputed failure to call one party’s counsel to address the court will not be a matter for the party to complain about. However, where the right of address exists it must not be denied as such denial renders the proceedings null and void where miscarriage of justice has been occasioned. Refer to Obodo v. Stafford Olomu & Anor. (1987) 6 SCNJ 72; Construction Ltd. v. Okugbeni (1987) 4 NWLR (Pt. 83) 429; (1987) 11-12 SCNJ 133. In this case counsel to the 3rd – 5th appellants was not even aware that the case was coming up for address that day. The learned Counsel for the respondents’ address was heard in his absence. Worst of all the previous day there was request by the 3rd – 5th appellants for a fairly long adjournment to enable their counsel to attend. In these circumstances there was a denial of right of fair hearing which has occasioned miscarriage of justice.
The learned Counsel for the 3rd – 5th appellants has argued issues (ii) and (iv) together. There is no need to dwell much of these two issues. Issue (iii) is as to whether the case was ripe for hearing when the trial Judge allowed hearing to commence on 11th March, 1998. On this issue the learned Counsel has mainly made averments affecting the case of the 1st and 2nd appellants without giving consideration to the record of proceedings and the conduct of the proceedings as it affects the 3rd – 5th appellants. It is bristle clear from the record on page 379 that a motion seeking court’s order to file statement of defence of 4th, 5th and 6th defendants was moved by their counsel and granted by the court as not opposed. This was on 7th October, 1996, long before the hearing was commenced on 11th March, 1998. At that time the 3rd – 5th appellants were the then 4th – 6th defendants. Their case was therefore, ripe for hearing and more so the said issue was not raised by them at the trial court till judgment. Their counsel even participated in the proceeding. As for issue No. (iv) it is as to whether the trial Judge followed the correct procedure when on 12th March, 1998, he suo motu amended his earlier order of 11th March, 1998, in respect of the statement of defence of 1st and 2nd appellants. This issue has been dealt with earlier when considering the appeal of the 1st and 2nd appellants. Whether it is correct or not, it does not affect the appeal of 3rd – 5th appellants. It is therefore no issue as far as their appeal is concerned.
In the final conclusion, I have decided the 2nd issue as formulated in brief of the 1st and 2nd appellants in favour of the 1st and 2nd appellants. I have also decided issues (i) and (iv) as formulated in the brief of argument of 3rd – 5th appellants in favour of the 3rd – 5th appellants. Both appeals have merit. The entire proceedings and the judgment of the trial court are declared null and void and accordingly set aside. Both appeals are allowed. This is an appropriate case for retrial. Accordingly, it is hereby ordered that the case be assigned by the Chief Judge of Ekiti State to another Judge of the High Court for retrial. No order given as to costs.
Other Citations: (2004)LCN/1613(CA)
