Mr. Joel Etipetip Ukwuyok & Ors. V. H.R.H. Festus Silas Ogbulu & Ors. (2009)

LawGlobal-Hub Lead Judgment Report

I. M. M. SAULAWA, J.C.A.

This is an appeal against the judgment of the Rivers State High Court of Justice, holden at Port-Harcourt, which was delivered on 26/6/04 by W.A. Chechey, J; in favour of the Respondents (Plaintiffs) against the appellants (Defendants).

The genesis of this appeal is traceable to 30/9/03. That was the date on which the Respondent filed a writ of summons along with a statement of claim thereof in suit No. PHC/1660/2003, thereby seeking the following 5 reliefs:

(a) A DECLARATION that the 1st Plaintiff is the Okan-Ama of Ibatirem Town, Andoni, having been properly selected, presented and installed the Okan-Ama of Ibotirem Town by the Ibotirem Town.

(b) A DECLARATION that the 2nd Defendant is not the Okan-Ama of Ibotirem Town by reason of the fact that he is not a member of any of the Ruling families of Ibotirem Town and having not been properly selected, presented and installed the Okan-Ama of Ibatirem Town.

(c) A DECLARATION that the Etipetip Ukwuyok family of Ibotirem Town is not the Royal family of Ibotirem Town.

(d) AN ORDER OF PERPETUAL INJUNCTION restraining the Defendants, their agents, servants or privies from parading the 2nd Defendant as the Okan-Ama of Ibotirem Town by whatsoever means possible.

(e) AN ORDER OF PERPETUAL INJUNCTION restraining the 2nd Defendant from parading himself as the Okan-Ama of Ibotirem Town either by hoisting any flag with the inscription of “Okan-Ama of Ibotirem Town” at any place, gathering or meetings or by whatever means possible.

Parties filed and exchanged pleadings thereof. The case accordingly proceeded to trial. The case relates essentially to chieftaincy stool known as Okan-Ama of Ibotirem town in Andoni Local Government Area of Rivers State. The 1st Respondent began his testimony on 17/4/04 as PW1. On 20/5/04, the Appellants were fore closed from further cross-examining the PW1 on the ground that:

“the Defendants have been given all the time since 19th April to conclude the cross-examination of PW1. ”

See page 54 of the Record.

The Respondents’ second and last witness was one John Saturday Eneyok, whose examination in Chief was recorded at pages 56 and 57 of the Record as PW2. The case was further adjourned to 24/5/04 for cross-examination of PW2. However, neither the Appellants nor their counsel appeared on that date. Not surprisingly, the learned trial judge fore-closed them from cross examining the PW2. The Respondents’ counsel accordingly closed the case for the Plaintiffs, there by resulting in the case being adjourned to 26, 27 and 31/5/04 “for defence or address.”

It is evident from the record, that when the case came up on those date, neither the Appellants, nor their counsel were in court. The record discloses, inter alia, the following:

Court: The records of the Court show that the Defendants were served with hearing notice in this matter on 24-5-04.

Today they are neither here, nor represented by counsel. There is also no explanation for their absence. The matter has suffered so many adjournments as the instance of the Defendants, or to give them opportunity to come to court and defence or prosecute their counter-claim.

In my view, it would be unjust to further adjourn this matter. I agree that the Defendants should be fore closed as to their defence, are hereby fore closed from defending. The Plaintiffs counsel’s called upon to address the court for the Plaintiffs.” See page 59 of the Record.

The counsel to the Respondents thus proceeded to address the court as ordered. At the end of which the case was further adjourned to 01/6/04 for the Appellants to address the court. On that it turned out that once as usual, neither the Appellants, nor their counsel were in court. Thus not unexpectedly, the learned trial judge ruled as follows:

Court: It is very clear that the records that the Defendants have lost interest on the outcome of this action. Therefore, I do not believe that any purpose would be served in continuing to adjourn this matter.

The Defendants are accordingly fore closed from addressing. The matter is adjourned to 2nd June, 2004 for judgment. See page 62 of the Record.

On the 02/6/04 in question the court below delivered judgment in the case in favour of the Respondents, as per the declarations sought against the Appellants alluded to above.

It is against the said judgment that the Appellants filed the instant appeal which has been predicated upon a total of seven grounds of appeal.

On 16/02/09, when the appeal last came up for hearing, the learned counsel adopted their submissions in the respective briefs of argument thereof.

Having accorded an ample, albeit very critical, consideration upon the nature and circumstances surrounding the appeal, the submissions contained in the respective briefs thereof, the authorities referred to therein vis-a-vis the record in its entirety, there is every valid reason for me to concur with the reasoning and conclusion reached in the lead judgment prepared and delivered by my learned brother Abdullahi, JCA, to the effect that the instant appeal is grossly devoid of merit.

It is rather obvious, as strenuously highlighted above, that the Appellants were the very architects of their own predicament. They deliberately, and rather stubbornly, stayed away from the proceedings of the court despite the fact that they were duly served with the necessary hearing notices to so appear in court. Having voluntarily abstained from the court sittings in question, the Appellants can not now be heard complaining that they have been denied fair hearing.

It is instructive, that the Appellants’ issue No. 1 raises a very fundamental question, thus:

ISSUE 1- Whether from the circumstances of how the trial was concluded in the lower court was the Defendants/Appellants (sic) given fair hearing in this case.

It is a trite and rather a well settled principle of law, that the issue of fair hearing is not merely a rhetorical question. It is indeed a fundamental question. This is so because where the issue of breach of fair hearing is raised and successfully upheld, the entire proceedings embarked upon by the court have to be declared null, void and of no effect whatsoever.

However, the above general rule notwithstanding, where, as in the instant case, a party to a suit has been evidently accorded every reasonable opportunity of being heard, and for no just cause whatsoever refuses or neglects to attend the sittings of the court, he is deemed to have voluntarily abandoned his case or defence, and cannot thus complain of breach or denial of fair hearing. See FOLBOD INVESTMENT LTD VS. ALPHA MERCHANT BANK LTD (1996) 10 NWLR (PT. 478) 344; S & D CONSTRUCTION CO. VS. AYOKU (2003) 5 NWLR (PT.813) 278; ABUBAKAR VS. INEC (2004) 1 NWLR (PT.854) 207; SCOTT EMUAKPOR VS. UKAVBE (1979) 1 SC 6; OYEYIPO VS. OYINLOYE (1987) 1 NWLR (PTY. 50) 366′ OMO VS. JSC; DELTA STATE (2000) 12 NWLR (PT. 682) 444; USANI VS. DIKE (2006) 17 NWLR (PT.1009) 610; ANPP VS. REC, AKWA IBOM STATE (2008) 8 NWLR (PT. 1090) 453 AT 1519 PARAS A – C, respectively.

Hence, in the light of the aforementioned postulations, and the detailed reasoning and conclusion reached in the lead judgment, I have no hesitation in pronouncing the present appeal as being grossly devoid of any merit, whatsoever. Resultantly, the appeal is hereby dismissed by me.

The judgment of the court below, delivered on 02/6/04 is hereby affirmed.

I abide by the order of costs in favour of the Respondents, against the Appellants.

Other Citations: (2009)LCN/3221(CA)