Nwafor Elike V. Ihemereme Nwokwoala & Ors (1984)

LawGlobal-Hub Lead Judgment Report

ANIAGOLU, J.S.C.

Only one issue falls to be determined in this appeal, namely, whether, as held by the Court of Appeal, there was a want of fair hearing in the court of first instance. The appellant in the only ground of appeal filed put it thus, that:

“The Federal Court of Appeal erred in law when it held that the defendant/respondents had no fair hearing before the learned trial judge.” To appreciate the ground of appeal, one must understand the background of the case, leading up to the judgment of the High Court. The plaintiff had taken out a writ in the Owerri High Court of Imo State claiming:

“1. Declaration of title to land known as and called NKPA situate at Umuonyeri Amala in Owerri Division with an annual value of 3pounds (three pounds).

2. 100pounds(One hundred pounds) being general damages for trespass.
3. Perpetual injunction restraining the defendants their servants and or agents from entering the said land.

DATED AT Owerri this 4th day of April, 1972.

(Sgd) D. Njiribaako,Esq.,

Solicitor for plaintiffs.”

As a classic example of how protracted land cases can be in this country, the claim came before Chuba Ikpeazu, J., as far back as 12th June, 1972, who on that day, ordered pleadings which were subsequently flied and served. It was the contention of the plaintiff in his statement of claim that this father cleared the land as a virgin bush, and, according to custom, owned it by reason thereof. The defendants, on the other hand, pleaded that the great-grandfather of both the plaintiff and the defendants cleared the virgin bush and therefore owned it by custom and that the land descended to both the plaintiff and the defendants who owned and possessed it communally. The plaintiff’s story is contained in paragraphs 4, 5, 6, and 7 of the statement of claim set out hereunder as follows:

“4. The plaintiff’s father was one Elike Nwolo. The said Elike Nwolo lived near the land in dispute at a time when it was a virgin forest untouched by man. Leopards had come from this virgin forest to kill and carry away the domestic animals of Elike Nwolo. Elike who was a renowned hunter in his days went into this forest and shot and killed a leopard. The killing of the leopard was a deed of valour and this incident became part of the local history and legend.

5. After the plaintiff’s father had killed the leopard, he started to clear the forest so as to destroy the hiding place of the dangerous animals that harassed him. The local people who regarded the forest as an evil one just watched him clear the forest alone. But while clearing it Elike Nwolo lost his eldest son called Onyebuenyi and also a wife called Nwucheshi.
6. As a result of the deaths of his wife and son, Elike Nwolo consulted an oracle and thereafter engaged the services of two renowned native doctors in the area named Oluigbo from Umuisu and Okoroiwuala from Okudu Amala. With the help of both native doctors he continued the clearing until he cut a reasonable big area away from his dwelling place. The land now in dispute is within this portion which was cleared by Elike Nwolo.
7. According to Amala native law and custom, the person who first clears a virgin forest becomes the owner of that portion cleared by him. Thus the land in dispute became the land of Elike Nwolo.”

The defendants’ version is contained in paragraphs 4 and 5 of their statement of defence hereby produced:

“4. The defendants admit that according to Amala native law and custom, the person who first clears a virgin forest becomes the owner of that portion cleared by him but deny that plaintiffs father cleared the virgin forest. It was plaintiffs and defendants’ great-grandfather, Oduwumi, who first cleared the virgin forest which then became his land inheritable by his descendants.

5. The defendants admit that Elike Nwolo, plaintiffs father, farmed in this land but he did so as a member of the family (Oduwumi) and in conjunction with other members of the family including the defendant’s father. The land was not then shared amongst members of the family but was commonly used for farming purposes during planting seasons. Both plaintiffs and defendants’ grandfathers had farmed on the land for over 40 years before packing over to the site for residential purposes. Both plaintiffs and defendants’ fathers also lived on the land. Also both the plaintiff and defendants (and other members of the family) lived on the land before transferring to other site. Any member of the family occupying a portion of the land owns that portion.”

After the filing of pleadings was completed in May 1973, the case was not listed for hearing until 5th October 1977 when it came before Abengonwe, J., in the High Court of the Owerri Judicial Division. After a series of adjournments the judge commenced hearing on 29th March, 1978. Between that date and 6th November, 1979 he was only able to hear the plaintiff and three witnesses after which, for reasons not disclosed on the record, the case came before Chianakwalam, J., on 18th January, 1980 who started the hearing de novo, on 28th July, 1980.

The plaintiff testified, called two witnesses and finally closed his case on 28th October, 1980. Both sides were represented by counsel-the plaintiff by P. C. Onumajulu Esq. and the defendants by J. O. Iwuagwu Esq. At the end of the plaintiffs case Mr. Iwuagwu called the 5th defendant who stated that his evidence covered the evidence of the rest of the defendants who were his brothers. By reasons of the shortness of his evidence it is hereby reproduced as follows: “5th defendant Daniel Nwankwoala sworn on Bible states in Theo. My name is Daniel Nwankwoala. I live at Umuonyeri Amala. I am a farmer. I know the plaintiff and the other defendants. The defendants are my brothers. My evidence in this case covers the evidence they are to give in the case. I know the land in dispute called Okpulo Oduwumi situate at Umuonyeri Amala. I made a plan of the land in dispute. This is the plan. Counsel seeks to tender it. No objection, Plan No. EC.327/ 72 admitted and marked exhibit B. The land is bounded by land of Nwiwu Odom of Umuonyeri Amala; land of Nwankwo Mgbakabala of Umuisi Amala; land of Nwawulo Nnadi of Umuisi Amala, land of Karawusa Ojiegbe of Umuonyeri Amala; land of Nwuju Iwezo of Umuoleforo Amala; and land of plaintiff. The original owner of the land was not Elike the father of plaintiff. The original owner was Oduwumi. The land was originally owned by one Obasi who was the father of Oduwumi. When Obasi died, Oduwumi his son inherited the land. When Obasi died, his land was shared amongst his children. The land in dispute is the one Oduwumi inherited after the sharing. He did not inherit it as virgin land.”

The record shows that Mr. Onumajulu for the plaintiff did not cross-examine the witness. Mr. Iwuagwu for the defence then closed his case.

The learned trial judge’s notes on the record show the following:

“Iwuagwu says he had no address to give as the case presented by the 5th defendant is manifestly opposed to the defendants’ pleadings. Onumajulu says plaintiff has proved his case and asks for judgment for the plaintiff. ”

The trial judge then adjourned the case to 29th October, 1980 for judgment. It is clear therefore that why Mr. Iwuagwu closed the case was because

“the case presented by the 5th defendant [was] manifestly opposed to the defendants’ pleadings.”

On 29th October, 1980, the learned trial judge delivered his considered judgment granting the plaintiff customary right of occupancy to the land in dispute (the Land Use Act having come into force), and a perpetual injunction, against the defendants.

Be it noted that when defence counsel closed his case because of the conflict of the 5th defendant’s evidence with the defendants’ pleadings, the defendants did not appeal to the judge that they had other witnesses to call. They did not repudiate the action of their counsel. There was no complaint whatever from them to the judge about the conduct of their counsel in closing their case. Ex facie everything appeared to be normal. It is the accepted general law that statements of counsel, if made on the trial of an action or in the course of an interlocutory proceeding in the presence of the client or his solicitor or someone authorised to represent the solicitor, and not repudiated at the time, bind the client (see: Duncombe v. Daniel (1837) 8 C & P 22-per Denman, C.J.). Before us in this appeal, Mr. Onumajulu stated that there was no complaint whatever lodged before the trial judge that the defendants had any problems, either among themselves or between them and their counsel.

The question may be asked, as indeed it was asked by appellant’s counsel before us: What was the trial judge to do when counsel for the defence who had complete control of the defence case, closed his case and stated he had no address to give The position of the judge was that of an umpire. He was not to take out the case from the hands of either counsel and conduct the case for counsel.

Counsel conducting a civil case is, as a matter of law and civil process in complete control of his case. He is a master in his own house. He knows the witnesses to call; the number of such witnesses sufficient for the case he is presenting to court; the order of presenting and marshalling those witnesses for the proof of vital points in his case and for effective in support of his case [see: BRISCOE v. BRISCOE (1968) P.501; (1966) 1 All ER 465]; the method of presenting the sequence of his facts; the decision whether he calls any witness on an issue or whether to rely on the provisions of a statute or other law for the proof of that issue; the decision on the tactics to employ in meeting his opponent’s case; when and where to throw in the towel and change his approach by amendments or otherwise; whether to surrender to judgment in the light of the evidence adduced by the other side or to be adduced, having regard to the pleadings, and every other decision to be taken in the conduct of his own side of the case for good or for evil. The trial judge is rarely to interfere except for holding a legitimate balance between the parties and seeing that the conduct of the case of each side is done in accordance with the rules and standards laid down by the law. A judge who takes over from counsel the conduct of the case of either party to the conflict, is no more an impartial judge, but a combatant in the fray, unworthy of his appointed seat.

The learned authors of the 4th Edition of Halsbury’s Laws of England, Volume 3 clearly state the position and the authority of counsel in relation to the conduct of his case in paragraph 1180 as follows:

“When counsel is instructed, then, subject to his duties to the court, and subject to his right to advise another course of action, he must accept and adhere to the instructions given by or on behalf of his client, but counsel is entitled to insist, and as a general rule, ought to have complete control over how those instructions are carried out and over the actual conduct of the case. If he is not given this control he is entitled to refuse or return the brief.

In civil actions, authority may be limited by the client, but only to a certain extent; and counsel may not take a subordinate position in the conduct of a case, or share it with the client, even if a litigant is himself a barrister; the litigant must elect either to conduct the case entirely in person or to entrust the case entirely to his counsel.”

STRAUSS v. FRANCIS (1866) LR 1 QB 379 was one of the cases cited in support. In that case it was held that it was within the general authority of counsel retained to conduct a cause to consent to the withdrawal of a juror, and that the compromise being within counsel’s apparent authority, was binding on the client notwithstanding that he may have dissented, unless the dissent was brought to the knowledge of the opposite party at the time.

Blackburn, J., delivering his judgment in the case, put the conduct of a case in the hands of counsel in these words:

“But counsel have far higher attributes, namely, the exercise of judgment and discretion on emergencies arising in the conduct of a cause, and a client is guided in his selection of counsel by his reputation for honour, skill, and discretion. Few counsel, I hope, would accept a brief on the unworthy terms that he is simply to be the mouthpiece of his client. Counsel, therefore, being ordinarily retained to conduct a cause without any limitation, the apparent authority with which he is clothed when he appears to conduct the cause is to do everything which, in the exercise of his discretion, he may think best for the interests of his client in the conduct of the cause: and if within the limits of this apparent authority he enters into an agreement with the opposite counsel as to the cause, on every principle this agreement should be held binding.”

At page 383 the same judge concluded his judgment with this general principle:

“All we decide is, that when a counsel, acting within his apparent authority, consents to withdraw a juror, the other side, acting fairly, may safely rely on the compromise being binding; and that, in order to invalidate the arrangement, not only must it be shown that the counsel’s authority was limited, but that the limitation was known to the other side at the time.”

Mellor, J., in his own judgment at p.384 posed the question and answered it thus:

“The question in the present case is whether the plaintiff is bound by what his counsel did; and as to this it appears to me that we are concluded by authority, and cannot say otherwise than that the client, having retained a counsel to conduct his cause, is bound by that counsel’s agreement to withdraw a juror, however much he may disapproved of that course.”

Reference was made, rightly if I may say so with humility, to the Lord Chief Baron’s judgment in SWINFEN v. LORD CHELMSFORD 29 LJ (Ex.) at p.397; 5 H. & N. at p.922, in which, dealing with the authority of counsel conducting a case and his non-liability in an action for the way he conducted it, although counsel has no authority over matters collateral to the suit, further added:

“although he has complete authority over the suit, the mode of conducting it, and all that is incident to it, such as withdrawing the record, withdrawing a juror, calling no witnesses, and other matters which properly belong to the suit and the management and conduct of the trial” .

Counsel, in conducting his case, is often faced with the responsibility of split-second decision which cannot wait for consultation with his client. He has to act immediately and decisively, and must be possessed, by the very fact of his having been briefed of the general authority to use his discretion at each turn of the proceedings. This position in England was held to apply to counsel in India. In SOURENDRA NATH MITRA & Ors v. SRIMATITA URBALA DASI (1930) 46 TLR 191, the Judicial Committee of the Privy Council held that advocates, admitted as such by the appropriate courts in India, who derive their general authority from being briefed in a suit on behalf of a client, have, as in Britain, implied authority to compromise the suit in the absence of express instructions to the contrary.

Lord Atkin in delivering their Lordships’ judgment put the matter clearly at pages 192 to 193 where he said:

“They are of opinion that Mr. Sircar, as an advocate of the High Court, had when briefed on behalf of the defendant in the court of the Subordinating Judge of Hoogly, the implied authority of his client to settle the suit. Their Lordships have already said that he must be treated as though briefed on the trial of the suit. Their Lordships regard the power to compromise a suit as inherent in the position of an advocate in India. The considerations which have led to this implied power being established in the advocates of England, Scotland, and Ireland apply in equal measure to India. It is a power deemed to exist because its existence is necessary to effectuate the relations between advocate and client, to make possible the duties imposed upon the advocate by his acceptance of the cause of his client. The advocate is to conduct the cause of his client to the utmost of his skill and understanding. He must in the interests of his client be in the position hour by hour, almost minute by minute, to advance this argument, to withdraw that; he must make the final decision whether evidence is to be given or not on any question of fact; skill in advocacy is largely the result of discrimination. These powers in themselves almost amount to powers of compromise: one point is given up that another may prevail. But, in addition to these duties, there is from time to time thrown upon the advocate the responsible task of deciding whether in the course of a case he shall accept an offer made to him, or on his part shall make an offer on his client’s behalf, to receive or pay something less than the full claim or the full possible liability. Often the decision must be made at once. If further evidence is called or the advocate has to address the court the occasion for settlement will vanish. In such circumstances, if the advocate has no authority unless he consults his client, valuable opportunities are lost to the client.”

The situation, I venture to hold, applies to, and is the same as, in Nigeria. Commending both counsel (Messrs. Okorodudu and Idigbe) in the way they conducted their appeal before the Federal Supreme Court, Abbott, Ag. C.J.F., in & IDAHOSA & Anor. v. ORONSAYE (1954) 4 FSC 166 at 174, touched on the responsibility and full control of counsel conducting a case when he said:

“Finally, I should like both Mr. Okorodudu and Mr. Idigbe to know that we much appreciate the care and attention which they have both given to this case. Their arguments, well-reasoned and carefully prepared, have been of the greatest assistance. It is most refreshing to hear an appeal conducted in this way, and particularly to find learned counsel with a sense of responsibility which leads them to give ground when it is obviously of no avail to prolong the struggle. ”

Recently, this Court has had to deal with an appeal in which the principle of counsel conducting a case being wholly in control was emphasized. It was the case of ALHAJI M. ABBA GANA v. ALHAJI A. JERMA & Anor., S.C. 102/1983 (unreported) decided on 24th October 1983. It was an election petition. Counsel sent his junior to represent him. The junior applied to withdraw the petition. The court in consequence dismissed the petition after satisfying itself that the junior wanted to withdraw the petition. Later, counsel applied to the trial court to reinstate the petition, arguing that his junior made a mistake in withdrawing the election petias what was intended to be withdrawn was a motion paper filed in the petition. The trial Chief Judge of Borno State, Anyah C.J., rejected counsel’s plea. An appeal was unsuccessfully lodged in the Federal Court of Appeal (as it was then called). On a further appeal to this Court, the appeal was dismissed on the ground that the junior was wholly in control of the case and had withdrawn the election petition with the full responsibility of counsel handling a case, leaving no room for the subsequent plea that a mistake was made.

Returning to the present case on appeal, the learned trial judge delivered judgment on the evidence before him and found for the plaintiff as hereinbefore stated. Defendants appealed to the Court of Appeal on four grounds of appeal as follows.

“I. Error-In-Law: The learned trial judge erred in law when he failed to receive the whole evidence of the defendants and their witnesses before giving judgment for the plaintiff.

Particulars:

(1) The fact that the 5th defendant gave evidence which the learned trial judge considered to be at variance with his pleadings on one aspect of the case, namely traditional evidence, was no justification for not hearing the whole case of the defendants and their witnesses.

(2) The defendants, at any stage of their proceedings before judge reserved the right to amend their pleadings to tally with their evidence.

II. Error-In-Law: The learned trial judge erred in law and misdirected himself on the facts when he failed to put the case of the plaintiff and the defendants on an imaginary scale to determine which is heavier before giving judgment for the plaintiff as was the case in MOGAJI Ors. v. RABIATU ODOFIN (1978) 4 S.C.

Particulars: The 5th defendant did not complete his evidence and did not call his witnesses to testify.

III. Want of Fair Hearing: The learned trial judge, when the counsel for the defendants refused to proceed with the case, without consulting with the defendants, ought to have allowed the defendant the opportunity to instruct another counsel to put across their whole evidence and that of their witnesses to afford him the opportunity of testing which of two conflicting testimonies are acceptable to him.

IV The judgment is not supported by the evidence.”

Before the Federal Court of Appeal (as it was then called) counsel for the defendants/appellants argued only the 3rd ground of appeal abandonthe rest of the grounds. For its importance I reproduce his oral submission to the Court of Appeal, exactly as in the record:

“GROUND 3

Page 68, continuation of defence case starting from p.67. Page 68 lines 15-17, lines 20-24. For whatever reason defence counsel refused to go further with the case because he was not pleased with the evidence of DW. The defence was not given an opportunity to choose another counsel. Defendant and the witnesses were not called. All defence counsel said is that the defence witness gave evidence inconsistent with their pleadings. The defence could amend statement of defence at any time. What happened in the court cut off the very foundation on which justice could be based because both parties were not given a fair hearing. If this submission is accepted I will say with all humility that this is a case to be sent back to the court for rehearing. I may not be qualified to say much about the defence counsel because he is not here to defend himself but the whole unfortunate case ending (sic) abruptly due to his fault. Doherty v. Doherty (1964) 1 All NLR 299. The defendants, due to their abrupt desertion by their counsel lost opportunity to defend themselves.

I abandon all other grounds and ask that the appeal be allowed.”Plaintiff/respondent’s counsel replied-again, I quote:

“Onumajulu: This appeal is misconceived because they had every opportunity to be heard. The 5th defendant said his testimony covered the evidence of other defendants. The case for defence closed. The fact that the defence counsel said he would not address. I refer Shab v. Westlands General Property Ltd (1966) 2 ALR 184. The defendants had full opportunity of presenting their case at pp 67-68.”

With that, the Court of Appeal (as per Belgore J.c.A.) delivered judgment allowing the appeal and ordering a retrial at the High Court of Imo State before another judge.

It is to be noted that no affidavit was sworn to before the Court of Appeal. There was no evidence placed before that court showing how the court came to hold that defence counsel had “deserted” the defendants; or what the “the behaviours (sic) of the defence counsel, Iwuagwu Esq. left much to be desired . . .”. Again, before us here in the Supreme Court, no evidence whatever-affidavit or otherwise-was placed before us indicating that anything went wrong in the camp of the defendants or as respecting the conduct of their counsel. An issue of this nature is not one to be left to conjecture. Proper material must be placed before the appeal court, in the proper way, before the appeal court can make conclusions or draw inferences of facts. No such material was placed either before the Court of Appeal or before us. The Court of Appeal was clearly in error to have come to conclusions it came to, without any evidence properly placed before it. I must confess that going through the record there is a great temptation to come to the conclusion that counsel for the defendants got disgusted and, in consequence, closed his case, but that temptation must be resisted because an appeal court works on evidence presented and not on conjectures. It does not originate the facts; it decides on facts properly presented. Justice must be done, no doubt, but it must be done according to law and rules prescribed under the law. Heavenly justice does not require evidence as a pre-requisite, because our Heavenly Father being Omniscient and Omnipresent, His justice is Eternal Verity. But man, in his finite limitations, requires to act on evidence to attain his measure of justice, which, at best, is imperfect.

The mode of raising fresh evidence or facts before the appeal court is, by settled practice, either by affidavit in interlocutory appeals or by the court taking fresh evidence-an exercise allowed by the Court of Appeal, on proper application, on weighty grounds. When a litigant has obtained a judgment in a court of justice, says Lord Loreburn, L.C. in BROWN v. DEAN (1910) AC 373 at 374

“he is by law entitled not to be deprived of that judgment without very sold grounds.”

It has often been stated by this court, based on long established principles that interference by the appeal court on findings of fact by the trial court must be done, not on a rash exercise of naked power, but only on well settled grounds, one of which is certainly not the desire on an appeal court to substitute its own views of the evidence for those of the trial court, without the decision of the trial court being either perverse or being a result of improper exercise of judicial discretion (ONOWAN & Anor. v. ISERHEIN (1976) 1 NMLR 263; AKINLOYE & Anor. v. EYIYOLA & Ors. (1968) NMLR 92 at 95; FABUMIYI & Anor. v. OBAJE & Anor. (1968) NMLR 242 at 247; WOLUCHEM & Ors. v. GUDI & Ors. (1981) 5 S C 291 at 326). Counsel for the defence, having decided not to call further evidence after putting in the evidence of the 5th defendant, the learned trial judge was bound, on the evidence adduced by both sides on a balance of probabilities, to find for the plaintiff. Before the Court of Appeal allowed the appeal it should have satisfied itself that the appellants had made out the ground of appeal filed and argued. Under the heading of “want of fair hearing” ground 3 which was argued, states that

“The learned trial judge ought to have allowed the defendants the opportunity to instruct another counsel to put across their whole evidence and that of their witnesses. The question was: did anyone apply to the judge for him to “allow” the defendants to instruct another counsel Did anyone complain to the judge that there were witnesses who should be heard Did anyone, indeed, bring to the attention of the judge that anything had gone amiss The answers are clearly in the negative. If counsel for the defendants had come to the conclusion that the 5th defendant had messed up the case; that on the reserve of the materials which he had (materials which he, and he only, knew about) he could never succeed in the case and that in order to minimize costs the best thing was for him to stop the case there and then acting on Abbot, Ag. C.J.F.’s tip in IDAHOSA v. ORONSAYE (supra) “to give ground when it is obviously of no avail to prolong the struggle” what was the trial judge to do in the circumstances then to allow counsel to take the course which he thought best. That the trial judge might possibly have thought to himself that if he was handling the defence he would not have done what counsel Iwuagwu did, is completely immaterial. The Court of Appeal should have asked itself the question whether the judge had, in any way, been unfair in the conduct of the case as the ground of appeal appeared to suggest. If the answer to the question was that the trial judge could not, in any way, be faulted on the score of fairness, then the appeal before the Court of Appeal must fail, for the very sound reason that the complaint lodged against the judge could not be substantiated by the appellants. Counsel for the respondents, arguing in support of the judgment of the Court of Appeal, cited (i) ISIYAKU MOHAMMED v. KANO NATIVE AUTHORITY (1968) I All NLR 424 referring to Ademola C.J.N.’s dictum on the true test of fair hearing (ii) ARIORI & Ors. v. ELEMO & Ors. (1983) 1 S.C. 13 in which this Court dealt with long delay by the High Court before delivering its judgment leading to the trial judge forgetting the facts of the case and delivering a judgment which was unrelated to the matters in issue and therefore an unfair adjudication; and (iii) A. DEDUWA & Ors. v. OKORODUDU (1976) 9-10 SC 329 a case in which the trial judge (Atake, J.) was pilloried by reason of what he did in the course of the trial. Unlike the present case on appeal, all these cases had genuine complaints against the trial judge, in what he did, in the course of trial, which was offensive to our notions of fair hearing as stated in ISIYAKU MOHAMMED (supra). What were the facts in these decided cases In ISIYAKU MOHAMMED there were many irregularities among which were that

(a) The court viewed the locus in quo without the accused being there;

(b) A note which he apparently made later to the proceedings was made to form part of the record;

(c) The first witness for the prosecution was the very prosecutor in the Urban Area Court.

In ARIORI v. ELEMO the trial judge adjourned the delivery of his judgment sine die and waited for 1 year and 3 months before he would deliver the judgment. When he eventually delivered it, he gave a judgment completely unrelated to the issues before the court.

In DEDUWA v. OKORODUDU the trial judge engaged in what this Court described as “an undignified and emotionally charged dialogue” with counsel “tending to engender in the minds of reasonable and right people sitting in the court during those proceedings the impression that there was indeed a real likelihood of bias on his part”. These cases, as I have said, were cases in which the trial judge did things which were offensive to our notions of fair hearing. In the instant appeal, Chianakwalam, J., did absolutely nothing than allow counsel to prosecute their case to conclusion and then deliver judgment based on the evidence adduced.

Subject always to the authority of a client to countermand the general authority of counsel, or to withdraw or amend his instruction during the course of the proceedings or even to dismiss his counsel has full authority and control over the conduct of the case for which he is briefed and to bind the client in those proceedings. In the instant appeal there was no justification for the Court of Appeal without evidential material before it to have set aside the judgment of the trial court.

Accordingly this appeal must be allowed. It is hereby allowed. The judgment of the Court of Appeal dated 4th May 1983 is hereby set aside and the judgment of Chianakwalam, J. of the Imo State High Court sitting at Owerri and dated 29th October 1980 which was set aside by the Court of Appeal is hereby restored. The appellant will have the costs of this appeal hereby assessed at N300.00.

OBASEKI J.S.C The main issue raised by the ground of appeal is whether the Court of Appeal was right in holding that the respondents’ case was not given a fair hearing in the High Court Owerri having regard to the proceedings before the High Court as reflected in the record of appeal.

The only ground argued before the Court of Appeal was the ground raising the issue of fair hearing. The arguments advanced by respondents before the Court of Appeal in support of this issue were based on facts not placed before the Court of Appeal either by affidavit evidence or in the record of appeal. The allegation ex facie was based on the closure of the case for the defence after the 5th defendant testified on behalf of all the defendants and on their authority and his counsel’s failure to address the court when invited by the learned trial judge to do so if he wished on the ground that the evidence given by the witness he called was contrary to his pleadings. Learned counsel for the plaintiff/appellant gave a short address after which the learned trial judge adjourned till the next day for judgment. Judgment granting all the plaintiff’s claims was duly delivered the following day.

The questions may then be asked whether:

(1) Counsel has no sufficient authority and control of his clients’ case to close the defence

(2) The learned trial judge can interfere in the conduct of the case for the defence by counsel duly instructed to conduct the defence

I answer the first question in the affirmative and the second in the negative.

All these issues raised have been fully dealt with in elaborate detail by my learned brother, Aniagolu, J.S.C. in the judgment delivered a short while ago, the draft of which I had the advantage of reading in advance. I agree with all the opinions expressed therein and I adopt them as my own.

For the reasons so ably stated in the said judgment, I too will allow and I hereby allow the appeal, set aside the decision of the Court of Appeal and restore the judgment of the High Court. The appellant will have the Cost of this appeal in this Court fixed at N300.00 and at the Court of Appeal N200.

COKER, J.S.C. I have had the advantage of reading in advance, the judgment just delivered by my learned brother, Aniagolu, J.S.C., with which I am in full agreement as to his reasons and conclusion.

As stated in his judgment, I agree that the complaint, in essence is directed not against the counsel who closed the defence but against the trial judge as to his function as an impartial umpire between the parties. As stated by my learned brother, the contention before the Court of Appeal was that he ought to have called witnesses for the defendants, who were represented by counsel of their choice to conduct their case before the court. “The function of a judge adjudicating between two disputants is that of an arbiter. A trial is unfair if the judge as an adjudicator shows interest or bias in the course of the proceedings in favour of one party or prejudice against the other party. This he may do in a variety of ways. His cardinal duty is that he must keep an open mind throughout the trial and must give each of the disputants equal and fair opportunity to present his case or defence by allowing him to call any witness of his choice in proving his own case or in challenging the evidence adduced by his opponent.” In this connection if he engages counsel, that counsel has complete control in presenting his case fairly and firmly without any undue interruption by the trial judge. His duty is to sit and determine the issues raised by the parties, not to conduct an investigation or examination behalf of any of the parties or of the society at large. But he is not a mere umpire. His object is to find out the truth, and do justice according to law, and in this pursuit, the advocate plays an honourable and necessary role. As Lord Eldon, L.C., said, in the notable passage “truth is best discovered by powerful statements on both sides of the question.” See Ex parte Lloyd (1882) Mort. 70 at p.72n. His duty is to hold the balance between the contending parties without himself taking part in the dispute. If a judge should hold himself to conduct the examination of witnesses, he, so to speak, descends into the arena and is liable to have his vision clouded by the dust of the conflict. See Yuill v. Yuill (1945) p.15 p.120 (1945) 1 All ER 183, also Madueke & Anor. v. Inspector-General of Police (1959) LLR p.142 per De Lestang, C.J., Lagos, and as Denning, M.R. stated in Jones v. National Coal Board (1957) 2 QB 55, “Let the advocates one after the other put the weights into the scales-the ‘nicely calculated less or more’-but the judge at the end decides which way the balance tilts, be it ever so slightly.”

He must rest content with the witnesses called by the parties: See in re Enoch & Zartezky Bock & Co. (1910) 1 K.B 327. So also it is for the advocates, each in his turn, to examine the witnesses, and not for the judge to take it upon himself lest by so doing he appears to favour one side or the other: See R. v. Cain (1936) 25 Cr App Rep 204, R. v. Bateman (1946) 31 Cr App Rep 106 and Harris v. Harris (1952), Times 9 April; Judgment of the Court of Appeal, 1952 No. 148 by Birkett L.J. especially). And it is for the advocate to state his case as fairly and strongly as he can, without undue interruption, lest the sequence of his argument be lost: See R. v. Clewer (1953) 37 Cr App Rep 37 (Words in bracket mine). In Bell-Gam v. Bell-Gam (1965) 1 all NLR 106 p.108 this Court said:

“a judge has no power to call a witness except with the consent of the parties. The situation may arise in which it appears to the judge that a person can throw light on the case under trial but has not been called as a witness by either party because neither party wishes to make him his witness. The judge may call him as a witness with the acquiescence of the parties and ask him the questions on which the judge thinks the witness can help. If his answers are useless on the issue in the case, neither party would be allowed to cross-examine him; but if his eviis adverse to a party, that party should be given leave to cross examine him on his answers only.”

It has never been suggested that the trial judge in this case was in breach of any of the foregoing in the course of the trial. Rather he has been accused of not doing what he ought not to do. There was nothing on record that the court was aware that the defendants had more witnesses to call and that counsel informed the judge, but was not allowed to call them. If he had witnesses to call and wanted adjournment to enable him to call them, he should have applied to the court. He never did so. In R. v. Wallwork (1958) 42 Cr App Rep 153, 159 the Court of Criminal Appeal in England held that “in a criminal trial-and I emphasise a criminal trial because it is different in civil proceedings-if the presiding judge is of the opinion that some person ought to be called who can throw light on the subject, in his discretion, he may call him and examine him himself.” Some State High Court Laws give the court power (e.g. S.64 Oyo State High Court Law Cap.46, Laws of Oyo State) to compel a person present in court to give evidence or produce a document, but such power does not, in my view, empower the court, at its own instance, without application or consent of the parties to call such person to testify as a witness, in a civil proceeding. There was no application to the trial judge or leave to amend the statement of defence. He could not know and was not expected to know what instructions were given to counsel. As my learned brother stated in the lead judgment, there could not possibly be any justification for the judge to give the defence after it had voluntarily closed its case, a second bite at the cherry, particularly when the defence counsel did not ask what the suit be non-suited. To do so would have resulted in injustice to the plaintiff to have their case finally determined. The “Relief’ as requested in the notice of appeal for a hearing de novo is misconceived, as it does not lie on the defendants to ask for it, when the trial judge did nothing amiss.

There is no doubt that Mr. Iwuagwu, the learned counsel for the defendants at the trial court, made a mistake in closing the case when he did without calling other witnesses, if any, or amend the statement of defence, if he considered it necessary. May be the mistake was due to his inexperience at the Bar, I do not know. But there can be very few at the Bar who have no recollection of occasions when they have erred, either by omission or commission, and failed to do the best that could properly be done for their client, mostly, but not exclusively, in the first year of practice, that are likely to have burned most deeply into the memory of any successful practitioner who has learned even more from his own mistakes than from the mistakes of others. But such mistakes have always been at the expense of the client, not that of the trial judge, who did not instruct the practitioner; nor can counsel for the opposing party either be blamed.

I will myself allow the appeal, set aside the order made by the Court of Appeal, and restore the judgment with order for costs of Chianakwalam, J., given on 29th October, 1980. The appellant is entitled to the costs of appeal in the Court of Appeal and before this Court fixed as per the order of Aniagolu, J.S.C.

KALU, J.S.C: After a preview of the judgment just read by my learned brother, Aniagolu, J.S.C. I am in complete agreement with him that there was no justification for the reversal by the Court of Appeal of the decision of the learned trial judge. Consequently, I agree that the appeal should be allowed and it is hereby allowed. My orders will be as contained in the said judgment of Aniagolu, J.S.C

OPUTA, J.S.C: On the 2nd October 1984 the Court heard this appeal. After reading the briefs filed by counsel on both sides and listening to their oral arguments and submissions in further elaboration of the various points discussed in the briefs, the Court reserved judgment to the 14th December 1984.

This is a land matter. In the court of first instance-the Owerri Judicial Division of the Imo State High Court-the plaintiff now appellant sued the defendants now respondents jointly and severally claiming as follows:

1. “Declaration of title to land known as and called ‘Nkpa’ . . .”
2. “‘(One hundred pounds) being general damages for trespass.”
3. “Perpetual injunction restraining the defendants, their servants and/or agents from entering the said land”.

Pleadings were ordered, duly filed and delivered on both sides.

The case was part heard before Abengowe J. and was started de novo by Chianakwalam, J. who completed it and delivered judgment on the 29th October 1980 awarding the plaintiff

“1. Customary right of occupancy to the piece or parcel of land known as and called ‘Nkpa’ (the land in dispute).

2. A perpetual injunction restraining the defendants jointly and severally and through them, their servants and/or agents from entering or trespassing unto the said land”.

The plaintiffs claim of (N200) general damages for trespass was dismissed.

The defendants appealed against the above judgment of Chianakwalam, J. to the Court of Appeal Enugu Division. Three grounds of appeal were filed. During the argument in the court below two grounds were abandoned. The only ground argued was ground 3, Want of Fair Hearing. The defendants’ appeal was allowed on the ground and a retrial ordered. The plaintiff has now appealed to this court against this judgment of the Court of Appeal, Enugu Division. I have had the privilege of reading in draft the judgment just delivered by my learned brother Aniagolu, J.S.C. He set out fully the history of the case, the facts, ground of appeal and the arguments. I completely agree with his conclusion that this appeal should be allowed and for the very valid reasons he gave for allowing the appeal.

But since the issue of fair hearing is of the essence of judicial adjudication and since it was the only ground argued in the court below; and again since it is on that ground the appeal was allowed by the court below; I will like, at least for the sake of further emphasis, to comment briefly on ground 3.

Ground 3: Want of Fair Hearing complained that:”The learned trial judge when counsel for the defendants refused to proceed with the case, without consultation with the defendants, ought to have allowed the defendants the opportunity to instruct another counsel to put across their whole evidence and that of their witnesses to afford him the opportunity of testing which of the two conflicting testimonies was acceptable to him.”

With respect, the above ground alleged facts, which in fairness to all concerned, especially the trial judge, should have been sworn to in an affidavit to give the trial judge a “fair hearing” of any allegation against him. The appellants in the court below complaining of “want of fair Hearing” cannot in the interest of “fair hearing” deny the respondents and the trial judge a right to answer back on a counter-affidavit any allegation of fact which happens not to be correct. For instance there is nothing on record to show

“The counsel for the defendants refused to proceed with the case”.Page 68 of the record of proceedings clearly shows that after the cross-examination of the 5th defendant who testified inter alia: “the defendants are my brothers. My evidence in this case covers the evidence they are to give in the case”-after the 5th defendant’s evidence, counsel for the defendants closed his case and the court noted “Case for defence”.

Here it is to be noted that counsel when instructed becomes “dominus litis”. He decides what evidence to put across, which witnesses to call and when to close his case. If the defendants felt that their counsel was not acting according to their instruction or was betraying the confidence they reposed in him, they could have appealed to the judge and asked for an adjournment to enable them instruct another counsel. The records connotes such request. It was further suggested:

“That the learned trial judge ought to have allowed the defendants the opportunity to instruct another counsel to put across their whole case.” No trial judge conducts a civil case for the parties especially when they are represented by counsel. What interest will the judge be serving in granting an adjournment which has not been asked for In a civil case, the defence is perfectly entitled to rely on the case of the plaintiff, offer no evidence and close its case. There is nothing new or irregular in this.

I have highlighted above the main factual props on which the ground alleging want of fair hearing in this case ought to have been based. Since there is nothing on record to show that any of these facts existed, the ground as filed was purely an academic conjecture. It is surprising that that ground of appeal was filed in the court below, without either an affidavit verifying the essential facts on which any meaningful submission could be made, or an application to adduce further evidence in proof of the material allegations. It is more surprising that the court below allowed counsel to urge such a ground before it-a ground not borne out by the record of proceedings.

In the leading judgment by Belgore J.C.A., to which Mohammed and Abai Ikwuechegh, JJ.C.A. concurred, the learned Justices of the Court of Appeal rightly observed: “The essence of trial is that both parties to the case must be heard”. Audi alteram partem is one of the twin pillars of natural justice. The other pillar is nemo judex in causa sua. Leaving the Roman jurists behind and coming nearer home, these two pillars are impartiality and fairness. In fact right to fair hearing is enshrined in our Constitution. “In the determination of his civil rights and obligations” every Nigerian is “entitled to a fair hearing”-(Section 33 (1) of the 1979 Constitution).

The question now is what does this right (right of fair hearing) imply First and foremost it implies (at least in civil cases) that both sides be given an opportunity to present their respective cases. It implies that each side is entitled to know what case is being made against it and be given an opportunity to reply thereto. And that is why we have pleadings in civil cases and issues are settled on those pleadings and no party is to be allowed to take the opposite party by surprise.

That will not be fair. That will infringe the rule and thus transgress against fair hearing. Fair hearing also imposes some obligations on the tribunal itself. The judge should not have any personal interest in the case before him. He should be impartial and act without bias. He should not hear evidence or receive representation from one side behind the back of the other. Nowhere in the court below was it alleged, let alone proved, that the trial judge was biased, or was not impartial.

Nowhere was it alleged that he received evidence from the plaintiff at the back of the defendants. An allegation of want of fair hearing is really an indictment against the trial court and not against the counsel. What counsel for the respondents did in this case, if questionable, must, in the nature of our system, be a matter for the Disciplinary Committee of the Bar or between them and the present respondents. That will have nothing to do with the judge and his adjudication.

If there were an application by the defendants/respondents to. If the trial judge refused to hear counsel for the defendants, that too may be a ground for complaint. But none of these factors which may militate against a fair trial and a fair hearing exists in this case on appeal. In a civil case, parties have a say in the conduct of their cases. They may do a lot of things by consent. When such parties are represented by counsel (as in the case now on appeal) counsel is wholly in command and no trial judge has the right to dictate to counsel how he should conduct his own case, what witnesses he should call, when to close his case, whether or not to address the court at the end of the proceedings. These are matters which in our system are peculiarly within the competence and absolute discretion of counsel. Any judge interfering may get the deserved retort

“This is my case not yours”. What fair trial or hearing entails is to give each side an opportunity to present its case. This was done here. Fair hearing does not enable the trial judge to take over the conduct of any case. That itself will amount to interference with fair hearing.

With the greatest respect to the learned Justices of the court below, there is simply nothing on record amounting to a denial of the defendants/ respondents’ right to fair hearing by the trial judge. In fact the court below tacitly accepted that the blame here does not attach to the tribunal when it observed:

“But the freedom to conduct the case is not a blank cheque to betray the confidentiality between counsel and clients and his clients are not vicariously liable for his omissions and defaults”.

I will only add nor is the judge or the court. Again with respect, the court below misconceived and misapplied the concept of fair hearing when it allowed the defendants’ appeal.

The plaintiff who had judgment in the court of trial and who lost. in the court below has now appealed to this court. His only ground of appeal is that:

“The Federal Court of Appeal erred in law when it held that the defendants/respondent had no fair hearing before the learned trial judge” .

His main argument is that “when a party to a case has opportunity to present his case and presents his case either personally or through the guidance and aid of counsel chosen by him, he cannot be heard to complain of want of fair hearing. The courts do not conduct cases for parties appearing before it especially when such parties are represented by counsel”. I entirely agree.

This appeal will therefore be allowed. It is for the above reasons and for the more detailed reasons given by my learned brother Aniagolu, J.S.C. that I will also allow this appeal. The judgment of the court below is set aside and the judgment of the court of first instance, the judgment of Chianakwalam, J., is hereby restored. There will be costs to the appellant against the respondents as follows:

i. In the court of Appeal = N200

ii. In this court = N300

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Other Citation: (1984) LCN/2204(SC)