Hajara Sule V. Benson Ebune (2002)

LawGlobal-Hub Lead Judgment Report

ZAINAB ADAMU BULKACHUWA, J.C.A.

By a writ of Summons dated the 26th day of November, 1986 the respondent as Plaintiff initiated this action against the appellant before the Idah High Court whereby as per paragraph 21 of his statement of claim he claims the following reliefs:

A declaration that the Plaintiff is exclusively entitled to the customary and or statutory right of occupancy and to the immediate possession, occupation, use and enjoyment of the said plot of land of this Suit, and injunction interim and permanent against the defendant, his agent or agents, servant or servants.

Pleadings were filed and exchanged by the parties and subsequent amendments were made with the leave of the trial court. The defendant also claimed title to the land in dispute and raised the defence of res-judicata.

The Plaintiff also filed a Motion on Notice seeking for an injunctive relief. The motion suffered series of adjournments before it was heard and determined and the case was subsequently adjourned for hearing on 20/9/94. When the case came up for hearing on that date, both parties and their counsels were in court. Learned counsel for the plaintiff said they will commence hearing with the testimony of the plaintiff and call remaining witnesses at subsequent adjournment, learned counsel for the defendant asked for an adjournment as his brief had not been perfected and the matter was again adjourned to 19/10/94 for definite hearing with or without Counsel.

On the 19/10/94, the Plaintiff was present, the defendant was absent and Counsels for the two parties were present.

Counsel for the Plaintiff said they were ready for hearing and two witnesses who were in court would testify with the plaintiff. S. A. Agada of Counsel for the defendant however applied to withdraw from the matter as his brief had not been perfected. The court granted his application and he withdrew from the matter. On the application of plaintiffs Counsel the matter was then heard with the testimony of the plaintiff alone and he thereafter closed his case and the matter was adjourned for judgment on the 30/11/94.

On that date both parties were present and the court delivered its judgment and granted the declaratory relief sought by the plaintiff in his pleadings. The defendant now appellant being dissatisfied with the said decision has now appealed to this court on the following 4 grounds of appeal;

GROUNDS OF APPEAL:

1. The learned trial judge erred in law in not granting the appellant/defendant fair hearing in this case when he proceeded on the 19th day of October, 1994 with the hearing of the respondent/plaintiff and consequently finally determined the case upon such hearing without hearing the defendant/appellant and his witnesses and occassioned a miscarriage of justice.

Particulars of Errors:

(i) The defendant/appellant was duly represented by Counsels A. Agada who incidentally withdrew from the case on 19th October, 1994 when the defendant/appellant was not in court.

(ii ) The court granted leave to the defendant/appellant’s said counsel to withdraw from the case in absence of the defendant/appellant.

(iii) The plaintiff/respondent who was represented by Counsel J. A. Onuh was allowed to proceed with the case to conclusion without the knowledge/or presence of the defendant/appellant who has no knowledge that his Counsel S. A. Agada has withdrawn from the case.

(iv) The proceedings were conducted in breach of the rules of natural justice which require hearing of a party before being condemned.

2. The learned trial judge misdirected himself in law when he failed to properly exercise his discretion vested upon him by Order 37 Rule 10 of the Kogi State Civil Procedure 1991 judicially or judiciously to have granted adjournment of the hearing of this case on the 19th October, 1994 after the defendant/appellants Counsel withdrew from this case in the absence of the defendant/appellant and this has occassioned a miscarriage of justice.

Particulars of misdirection of Law:

(i) Order 37 Rule 10 of the High Court (Civil Procedure) Rules, Edict 1991 Kogi State vests unfiltered discretion on the lower court to adjourn matter in the circumstance of this case.

(ii) It was obvious that appellant was not aware of his Counsel’s withdrawal from the case.

(iii) The trial court failed to consider the principle of avidi altoria patora in the circumstances.

(iv) It is trite law that discretion must be judicially and/or judiciously exercised being a long established principle.

3. The learned trial judge erred in law when it granted leave to the defendant/appellant’s Counsel Mr. S. A. Agada to withdraw from the case without hearing the defendant/appellant and thereby allowed the plaintiff/respondent to proceed with the case without the knowledge or presence of the defendant/appellant.

Particulars of Error:

(I) It is not in doubt that Mr. S. A. Agada was duly representing the defendant/appellant in their case from the onset.

(ii) The lower court ought to have heared (sic) the defendant/appellant on the allegation by his Counsel that the defendant/appellant has not perfected his brief.

(iii) The withdrawal granted to the defendant/appellant’s Counsel without hearing the defendant has consequently occassioned a miscarriage of justice.

4. The judgment of the trial court is against the weight of evidence before the court. The learned trial judge erred in law in not considering the statement of defence of the defendant/appellant before the court in its judgment.

Particulars of Error:

(i) The trial court is under a legal duty to consider the statement of defence of the appellant before the court as he cannot close his eyes to it.

(ii) The trial court would have arrived at a decision that the defendant/appellant has a defence on merit if it had considered the statement of defence to warrant calling the defendant/appellant to enter defence.

From these grounds of appeal the appellant formulated two issues produced hereunder for the determination of this appeal.

1. Whether the trial court was right to have proceeded to hearing after the withdrawal of the defendant’s Counsel in the absence of the defendant (Grounds 1, 2, & 3)
2. Whether it was proper to have proceeded to hearing and judgment in view of the defence of estoppel raised by the defendant (Ground 4).

The respondent adopts the two issues raised in the appellant brief and only went further to rephrase them in the following manner.

(a) Whether from the conduct of the appellant through out the length of the case before the trial courts both at Idah in the then Benue State and Ayingba High Court now in Kogi State, the trial court was right to have taken evidence in the absence of the defendant/appellant in this appeal.

(b) Whether an oral plea of Res-Judicata pleading evidencing same which is abandoned without proof whatsoever can ground a plea of res-judicata in law.

(c) Whether a trial court has a legal duty to compel a litigant in a civil matter to appear in court to prove his case.

The respondent having adopted and replied to issues raised in the appellant issue for determination which are based on the grounds of appeal, has no business rephrasing the issues which are superflous to the main issues, this appeal will therefore be determined on the issues as raised by the appellant.

ISSUE 1

Whether the trial court was right to have proceeded to hearing after the withdrawal of the defendant’s Counsel in the absence of the defendant.

On this issue it was submitted for the appellant that the grant of the application for withdrawal by appellant’s counsel which in effect sustained the allegation of non-perfection of brief without hearing from the appellant; the taking of evidence in the absence of the appellant who was under the impression that he was represented by counsel; having taken plaintiff’s evidence in the absence of appellant failure to adjourn for cross-examination and the failure to give the defendant the opportunity to open his defence all occassioned a miscarriage of justice.

It is his further submission that though the trial Court had the discretionary power to adjourn or to refuse to adjourn once the discretionary power is not exercised an appellate court as a matter of practice will interfere with the exercise, if it was not exercised judiciously. that in the instant case it was necessary in the interest of justice to adjourn but the trial court failed to so adjourn and relied for his submission all; – BEDDING, HOLDINGS V. NEC 1992 8 NWLR Part 260 428; TSOKWA & SONS LTD V. CFAO 1993 4 NWLR Part 291 120.

It was also submitted for the appellant that S.33 (1) of the 1979 Constitution (relevant at the time) essentially required a hearing that is fair to both parties to a case which in effect is a restatement of the rule of natural justice which requires that, in the resolution of any dispute; the parties to the dispute must be accorded fair hearing – vide BAKAKE V. L.S.C.S.C. 1992 8 NWLR Part 262 641.

That the breach of the Constitutional right of fair hearing in any trial investigation nullifies such trial or investigation and any decision taken will be nullified – See CHIEF & AND OFFICE.R V. ALOR 1991 4, NWLR Part 187 617.

In reply the respondent contended that it is erroneous to say the taking of evidence in the absence of the appellant was a breach of fair hearing. That the appellant was in court when his counsel complained of non perfection of his brief and he failed to turn up at the next adjourned date, that the absence of the appellant being unexplained the court had no duty to force or compel a defendant in a civil matter to defend the case at all cost. That the authorities as cited by the appellant are distinguishable to this case.

On 29/9/94 and 19/10/94 this is what transpired in court. “Parties are present J. A. Onu holding brief for Chief B. C. Oyibo for the plaintiff S.A. Agada for the defendant J. A. Gnu. – The case is for hearing. We are ready: we have 4 witnesses in all. The plaintiff will testify as the only witness today.

S. A. Agada: – The case for the plaintiff is not ready because he is not here with his witnesses in accordance with the order of court. This is a land matter and piece meal evidence is not in the interest of the defendant, urge court to hold that case cannot go on.

J. A. Onu: – We feel that case should go on because evidence of the plaintiff is lengthy. We can call other witnesses, any other time. I urge the court to hear the plaintiff.

S. A. Agada:- I wish to say that my client has not perfected my brief. I will ask for adj.

Court:- Case further adj. to 19/10/94 on the application of the defendant for definite hearing with or without counsel.

Signed.

Hon. Justice S. T. Hussaini

20/9/94.

19/10/94

Plaintiff is in court.

Defendant is absent.

J. A. Onu for the Plaintiff.

S. A. Agada for the defendant

J. A. Onu : – the case is for hearing

We are prepared to go on. The plaintiff intends to call two witnesses.

They are present.

S. A. Agada Esq:- It is unfortunate that the defendant is not here. I intend to withdraw from this matter and I told him so since my brief has not been perfected. I urge court to grant my application to withdraw from the matter.

J. A. Onu: – I have no objection to the withdrawal.

Court:- Counsel’s application for withdrawal in the circumstance is granted. Counsel is hereby discharged.

Signed

Hon. Justice S. T. Hussaini (J)

19/10/94

J. A. Onu;- This matter was adjourned for definite hearing today. The Defendant is aware of today’s date as he was in court adjourned date. I have two witnesses in addition to the Plaintiff. Issues have been tried i.e. statement of claim and statement of defence are before the court. We urge the court to allow us to proceed with case in absence of the defendant. We shall rely on the statement of claim filed on 11/5/94, the amended statement of claim filed on 21st January, 1993. The defendant also filed an amended statement of defence dated 23/11/87. We intend to call the plaintiff to give evidence. There after the plaintiff testified as P.W. 1 and tendered four documents.

“J .A. Onu: – In the circumstances I want to dispose with other witnesses for now. The plaintiff will close his case. I wish to take date for judgment.

Court:- Case is further adj. to 30/11/94 for ‘J’.

Signed:

Hon. Justice S. T. Hussaini

19/10/94.

30/11/94 Plaintiff is in Court

Defendant is also present not represented. Speak Igala J. A. Onu (Holds B. C. Oyibo’s) brief for the plaintiff; J. A. Onu: – The case is for judgment” and the court delivered its judgment.

I have placed on record what had transpired before the lower court for a clearer understanding of the facts leading to this appeal.

By virtue of S.33 (1) of the 1979 Constitution, in the determination of his Civil right 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.

It follows therefore that a hearing can only be said to be fair when all the parties in the proceedings are given an opportunity of a hearing. If only one of the parties is heard and the other not given an equal opportunity of being heard then the hearing cannot be called a fair hearing. See – EKUMA V. SILVER EAGLE SHIPPING AGENCIES LTD 1987 4 NWLR Part 65 472.

In the instant appeal Counsel for the respondent indicated on 20/9/94 that in all four witnesses will testify for the plaintiff. The appellants Counsel asked for an adj. as his brief had not been perfected, the case was then adj. for a definite hearing at the next date. It will be in order if on that date the case is heard even if the appellant was absent.

However it was on that date that the court granted leave to the appellant Counsel to withdraw in his absence proceeded and heard the evidence of the respondent and subsequently adjourned to the next date for hearing. The appellant having raised a defence to the action and being absent when his Counsel withdrew from representing him, the laws of natural justice demands that he be given notice that he no more has legal representation, which the respondent had put up his case before the court.

This is a situation where the doctrine of audi alteram partem will operate, for it is a situation where the appellant is denied the opportunity of being heard by the failure of putting him on notice.

The respondent, who had earlier indicated his intention to call four witnesses, used the advantage of the absence of the appellant to testify and close his case on the same day and apply for judgment at the same time. This in my view is not a situation where the provisions of 0.37 R. 10 of the High Court of Kogi State Civil Proceedure Rules will become applicable. It would only have become applicable if the appellant’s Counsel had withdrawn from the case on the 20/9/94 and the case had been adjourned for definite hearing on the 19/10/94 and on that day the appellant failed to come to court. From which ever angle one looks at the circumstances of this case the appellant was not given a chance of being heard by, the trial court and I so hold.

Issue two which raises the question of whether it was proper to have proceeded to hearing and judgment in view of the defence of estoppel raised by the defendant viewed in the circumstances of this case is premature.

The judgment of the lower court was based on the pleadings and testimony of the respondent, the statement of defence though filed was never considered by the trial court, in any case since no evidence was adduced by the appellant in support, the statement of defence would have gone to no issue.

The facts of this case however have shown that of the two parties before the court only one party had been accorded the opportunity of presenting his case.

The other party had been denied the right of being heard at every stage of the proceedings. Having shown that his right to fair hearing had been infringed, an appellate court will have no option than to send the case back for retrial to enable all the relevant evidence be heard and determined by a trial court See ADEYEMO V. AROKOPO 1988 2 NWLR Part 79 703; OKOYE VS KPAJIE 1973 NMLR 84; OKE VS EKE 1982 12 SC 218.

On the whole I find that the appellant had not been given the opportunity of being heard by the trial court. I allow the appeal and set aside the decision of the Kogi State High Court Per Hussaini J delivered on 30/11/94 and remit the case back to the Chief Judge of Kogi State for retrial before another Judge.

I award costs assessed as N2, 000.00 before the lower Court and N3, 000.00 before this Court to the appellant.

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Other Citations: (2002)LCN/1279(CA)