Mrs. Stella Okafor V. The Administrator General & Public Trustee, Anambra State & Anor. (2006)
LawGlobal-Hub Lead Judgment Report
BADA, J.C.A.
This is an appeal from the decision of Honourable Justice G. U. Ononiba the then Chief Judge of the Anambra State High Court, delivered on the 7th day of February, 2002.
The suit was commenced at the lower court by originating motion in which the 1st respondent in this court asked for the following orders:
“(1) An order of court revoking the letters of administration granted to the applicant in respect of the Estate of Addison J. E. Okafor (Deceased).
(2) An order directing the respondents to offset the debts owed to the applicant including the administration fees.”
According to the record of proceedings, this action came up for the first time on 24/7/2001 before the trial court. The motion was then adjourned at the instance of appellant’s counsel. It came up again on 15/11/2001 and appellant’s counsel also wrote a letter for adjournment. And on 21/1/2002 when the motion came up for hearing it was not heard and it was adjourned till 7/2/2002. Finally on 7/2/2002 when the motion came up for hearing, counsel for the appellant wrote a letter for adjournment on the ground that he was otherwise engaged at the Court of Appeal Calabar Division for a criminal appeal.
According to the record of proceedings of 7/2/2002, the learned trial Judge proceeded to revoke the letters of administration without giving the appellant the opportunity of being heard, nothing was recorded about letter of adjournment written on behalf of appellant by her counsel.
The appellant was dissatisfied with the decision of the trial court and she appealed to this Court. Briefs were duly filed and exchanged.
The appellant formulated two issues for determination:
“(i) Whether it was proper in law for the learned trial Judge to deliver the decision dated the 7/2/2002 without giving the respondent/appellant opportunity of being heard.
(ii) Whether it was proper for the learned trial Judge to deliver the decision dated 7/2/2002 without taking into consideration a subsisting interlocutory injunction affecting the estate which is the subject matter of this appeal.”
The learned counsel for the 1st respondent also formulated two issues for determination as follows:
“(1) Whether having regards to the circumstances of the entire case, the decision made by the learned trial Judge on 7/2/2002, occasioned a miscarriage of Justice on the appellant.
(2) Whether it was proper for the learned trial Judge to deliver the decision dated 7/2/2002 after taking into consideration a subsisting interlocutory injunction affecting the estate which is the subject of this appeal.”
At the hearing of this appeal, the learned counsel of both parties adopted and relied on their respective briefs of argument.
As a preliminary point, learned counsel for the appellant submitted that issue No. 1 formulated by counsel for the 1st respondent does not arise from the ground of appeal and urged that it should be struck out.
Learned counsel for the 1st respondent on the other hand submitted that issue No.1 arose from the ground of appeal.
It is trite law that an appellate court can only hear and decide an issue raised in the grounds of appeal filed before it and an issue not covered by any ground of appeal is incompetent and will be struck out.
See -Achiakpa v. Nduka (2001) 7 SCNJ Page 567; (2001) 14 NNLR (Pt. 734) 623.
In this case issue of miscarriage of justice does not arise from any of the grounds of appeal, in the circumstance issue No.1 by respondent’s counsel is incompetent and it is accordingly struck out. Learned counsel for the appellant contended that according to the records of this appeal there was a letter of adjournment by respondent/appellant’s counsel to the trial court on the 7th day of February, 2002. In the said letter for adjournment, the counsel clearly notified the trial court that he was to appear before the Court of Appeal sitting at Calabar for a criminal appeal. And he requested for proximate dates for the hearing of the 1st respondent’s originating motion.
The learned counsel submitted that what transpired on 7/2/2002 at the trial court amounted to a denial of fair hearing against the respondent/appellant. And where there is denial of fair hearing it renders the entire proceedings including decisions or judgment therein as null and void. He referred to – Salu v. Egeibon (1994) 6 NWLR (Pt. 348) p. 23 at 44 paras. F to G; Adigun v. Attorney General of Oyo State & 18 Ors. (1987) 1 NWLR (Pt. 53) at p. 678 at 683.
On the other hand, learned counsel for the 1st respondent submitted that adjournment of a case is a matter at the discretion of the court. She went further that in granting adjournment, the court must always weigh the necessity for speedy trial with the request for adjournment. She referred to – Odusote v. Odusote (1971) 1 All NLR page 219 at 223-224; Solanke v. Ajibola (1968) 1 All NLR page 46 at 54.
Learned counsel also submitted that an adjournment would be refused if the court is of the opinion that its purpose was to delay the proceedings.
She referred to – Omega v. The State (1964) 1 All NLR page 379 at 384.
She contended that what transpired on 7/2/2002 at the trial court did not amount to denial of fair hearing against the appellant because according to her the appellant from the onset had frustrated the efforts made by the 1st respondent to smoothly wind up the estate. She stated that 5 adjournments were granted by the court at the instance of the appellant’s counsel and further that the letter of adjournment of 7/2/2002 was not brought to the notice of the trial Judge before he made his decision. She went further that there is a presumption that there is nothing on the record of proceedings or before the court to rebut the presumption that the letter of adjournment written by the appellant’s counsel was brought to the notice of the trial Judge or that he received the letter but went ahead with the matter. She referred to – Fannami v. Bukar (2004) All FWLR (Pt. 198) p. 1210 at 1241.
Learned counsel for the 1st respondent also argued further that assuming but not conceding that the letter for adjournment was brought to the notice of the learned trial Judge before he made his decisions, it is a general principle of law that courts should avoid steps that are directed and aimed at encouraging delays in the name of exercising the right of application for adjournment. She therefore urged this court to dismiss this appeal as it lacked merit.
Under section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria the right to fair hearing is guaranteed. It is also a fundamental principle of the administration of natural justice that a party and his witnesses if any should be heard before the case against him or her is determined in compliance with the audi alteram partem doctrine.
In Godwin Ekiyor & Anor. v. Chief Frukama Bomor (1997) 9 NWLR (Pt.519) page 1 at 12 it was held that where a court decides a case on the evidence of one of the parties alone while ignoring the evidence for the other side, the hearing is not a fair one.
See also – Kotoye v. Central Bank of Nigeria & 7 Ors. (1989) 1 NWLR (Pt. 98) p. 419 at 426.
In the instant case, a critical look at page 37 of the Record of Proceedings showed that on the 7th day of February, 2002 parties were present in court, counsel for the applicant and 2nd respondent were also present. After the short address by counsel for the applicant to which counsel for the 2nd respondent agreed, the trial Judge without calling on the appellant who was the 1st respondent at the lower court to react to the submissions of counsel for the applicant and 2nd respondent, went ahead to revoke the letters of administration granted to the Administrator General and Public Trustee Anambra State who was the applicant at the lower court. The above decision of the trial Judge terminated the suit that brought all the parties to court.
Counsel for the 1st respondent in this court submitted that where proceedings are conducted on the basis of affidavit evidence and the parties have filed their affidavits, therefore failure of the court to hear them does not amount to violation of fair hearing.
A critical examination of the affidavit in support of the application at the lower court on page 3 of the Record of Proceedings and the counter affidavit on page 18 of the same record showed that they are diametrically at variance. And when a court is faced with such a situation, it must not pick and choose or believe one and reject the other, it is only by resorting to viva voce evidence that the court will resolve the conflict on the facts.
The learned trial Judge should not have ignored the letter written to request for adjournment by learned counsel for the appellant. Also since the parties were present in court on the said 7th day of February, 2002 before the trial Judge revoked the letters of administration in contention, the appellant who was the 1st respondent at the lower court should have been called upon to react to the submissions of the counsel for the applicant and that of the 2nd respondent.
Therefore the manner in which the learned trial Judge dealt with the application by revoking the letters of administration summarily which was the bone of contention between the parties without hearing the appellant at all was in my view, a denial to the appellant of his right to be heard and that is a direct infringement of the fundamental maxim audi alteram partem which, in effect, is a denial of a fair trial.
The consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void.
See – Salu v. Egeibon (supra); Adigun v. Attorney General of Oyo State & 18 Ors. (supra).
The next issue for determination is whether it was proper for the learned trial Judge to deliver the decision dated the 7/2/2002 without taking into consideration a subsisting interlocutory injunction affecting the estate which is the subject of this appeal.
A glean from the Record of Proceedings showed that the letters of administration which the 1st respondent sought its revocation contained among other things the property known and called No.36 Urualla Street, Mile 1, Diobu, Port Harcourt. The aforesaid property was not only a subject of pending litigation and a resealed letters of administration in the High Court of Rivers State, but equally a subject matter of subsisting interlocutory injunction at the High Court of Rivers State of Nigeria.
The trial court was seized of the subsisting interlocutory injunction by a court of coordinate jurisdiction by virtue of the counter affidavit sworn to by the respondent/appellant on the 21/5/2005 at the trial court. (See page 18 of the record).
Learned counsel for the appellant contended that the decision of the trial court on the 7/2/2002 clearly puts in issue the operational scope of doctrine of “lis pendens.”
The doctrine of “lis pendens” is that the law does not allow the litigant, parties or give to them during the currency of the litigation involving any property rights in such property so as to prejudice any of the litigating parties.
The learned counsel for the appellant submitted that the revocation of the letters of administration which No. 36 Urualla Street, Mile 1, Diobu, Port Harcourt is part of, amounts to negation of doctrine of “lis pendens” by the trial court.
Learned counsel for the 1st respondent on the other hand submitted that the doctrine of “lis pendens” has no application in this case. He referred to Ogundiami v. Araba and Barclays Bank (Nig.) Ltd. (1978) 67 SC p. 55.
By virtue of paragraph 7 of the counter affidavit of the appellant on page 18 of the record which alleged “that the applicant in collision with the 2nd respondent have purported to sell the property deposed to in paragraph 4 hereof to one Nze Chuks Emenike to the prejudice of the other beneficiaries of the estate” which was not controverted by the respondents, conclusively points to the fact that revocation of the letter of administration which No. 36 Urualla Street, Mile I Diobu, Port Harcourt is part of, amounts to negation of doctrine of “lis pendens” by the trial court.
Consequently it is my view that the decision of the trial court on 7/2/2002 contravenes the principles of doctrine of “lis pendens.”
In view of the foregoing, it is my view that this appeal succeeds and it is allowed. The decision of the trial court which revoked the letters of administration granted to the respondent i.e. The Administrator General and Public Trustee on 2/5/80 in respect of the Estate of late Addison Joseph Elochukwu Okafor is hereby set aside.
The originating motion is remitted to the Chief Judge of Anambra State for assignment to another Judge to hear and determine the case without further delay.
There shall be no order as to costs.
Other Citations: (2006)LCN/1898(CA)
