Registered Trustees Of The Christ Faith Mission & Ors V. Revd. Daniel Egbefah Akugha (2008)

LawGlobal-Hub Lead Judgment Report

ALI ABUBAKAR BABANDI GUMEL, J.C.A.

This is an appeal against the decision of the Delta State High Court, Warri Judicial Division in Suit No. W/254/2002. In an amended Statement of Claim dated 16th September, 2002, the Appellants, as Plaintiffs sought for the following reliefs against the respondent, as the defendant. They are: –

“1. A DECLARATION that the premises known as No. 52 Okoro Street, Off 1st Marine Gate, Warri, is and should remain the property of The Christ Faith Mission, Warri. And that the church is entitled to a declaration of statutory right of occupancy over the aforesaid land and the improvements thereon.

2. AN ORDER OF perpetual injunction restraining the Defendant, his servants, privies and/or agents from continuing his trespass and/or further trespassing into 1st Plaintiff’s Church premises situate at No. 52, Okoro Street, Off 1st Marine Gate, Warri.
3. AN ORDER of perpetual injunction restraining of Defendant his servants, privies and/or agents from further arresting.

Intimidating and/or detaining the Plaintiffs or their church members maliciously and unlawfully.

4. N5,000,000.00 (Five Million Naira) being general and special damages for the acts of trespass on 1st Plaintiffs said church premises.
5. AN ORDER restoring or replacing every property/items removed or destroyed by the Defendant in the cause of his continued trespass/invasion of 1st plaintiffs church premises aforementioned.
6. N10,000,000.00 {Ten Million Naira} being damages for (i) malicious, unwarranted and unlawful arrest and detention of the Plaintiffs and other members of the church from the 24th to 26th September, 2002 at “A’ Division, Nigeria Police Force, Warri (b) punitive, aggravated/exemplary damages.”

The Respondent herein filed a defence to this claim by way of a Statement of Defence as well as a Counter-claim dated 6th November, 2003. The Appellants filed a reply to the Statement of defence and a defence to the Counter-claim. Issues now having been fully joined, the matter went to trial on 10th May, 2004. In the course of the proceedings of 10th May, 2004, the case of the Plaintiffs against the defendant opened with the testimony of the 2nd Plaintiff as PW1. In the course of the oral evidence of PW1 some cash receipts were also tendered and admitted in evidence, despite the objections of learned Counsel to the defendant/respondent. At the end of her oral evidence, PW1 was put up for cross examination. However, not too far into the cross examination, the Court saw good reason to adjourn the proceedings to 25th May, 2004 for continuation of hearing.

On the 25th May, 2004, when the matter was called for continuation of hearing, the 2nd, 3rd and 5th Plaintiffs as well as the defendant were physically present in Court, while their respective counsel were absent. Learned Counsel to the defendant, Mr. O. A. Okpukpor wrote a letter of apology for his inability to be in Court that day. He gave the reason for his absence as his being involved with matters before the Delta State Local Government Election Petition Tribunal coming up for hearing that day. He also sought for an adjournment, subject to the Court’s convenience to either 4/6/04, 16/6/04 or 18/6/04.

The learned trial judge was not satisfied with the application for adjournment. He invited the Plaintiffs to proceed with the case. When the plaintiffs showed an unwillingness to continue, the learned trial judge went ahead to dismiss the action. The Plaintiffs were dissatisfied with the order dismissing their action. They therefore filed this appeal on the following 3 grounds of appeal; VIZ:

1. The trial court erred in law in dismissing the suit of the Plaintiff.

PARTICULARS

i. The 2nd Plaintiff had fully testified in the suit before the law court on every single paragraph of the statement of claim.

ii. The trial court did not consider the evidence on record to determine whether same could have sustained the claim of the Plaintiff.

iii. The judgment of the trial court is perverse as the claim of the Plaintiffs was well established before the court below.

2. The trial Court erred in law when it proceeded with the suit on 25/5/2004 in the absence of both counsel to plaintiff and counsel for defendant.

PARTICULARS

i. Counsel for defendant had written to court asking for adjournment of the suit to another date.

ii. The said letter of adjournment was brought to the knowledge of the counsel for plaintiffs who also was not present in court presumably on the assumption that the trial court will adjourn the suit based on the letter for adjournment of counsel for the defendant.

3. The entire proceedings of the court of 25/5/2004 is a breach of the Fundamental Right of the Appellant to a hearing of this suit.

PARTICULARS

i. The procedure adopted by the trial denied the plaintiffs of their right to a fair hearing/trial.

ii. The trial court visited the sin of Counsel on litigants.

iii. The trial court did not allow the plaintiff the opportunity to engage the services of another counsel in the absence of the counsel handling the suit.

The Appellants filed their brief of argument. It is dated and filed on 10th May, 2006. The Respondent also filed a brief of argument dated 16th June, 2006.

The Respondent’s brief also includes a notice of preliminary objection on a number of grounds. The brief also incorporates arguments and submissions on the notice of preliminary objection. Upon being served with the Respondent’s brief of argument, learned Counsel to the Appellants responded with a reply brief dated 6th November, 2006.

At the hearing of the appeal on 7th October, 2008, respective learned Counsel adopted and relied on their respective briefs of argument. Also, in the course of the hearing, learned Counsel to the Respondent drew our attention to his preliminary objection and the fact that his brief of argument incorporated arguments and submissions on it.

Because the preliminary objection seeks to challenge the competence of all the grounds of appeal, thereby the foundation of this appeal, I propose to deal with it first and foremost. The grounds of appeal have already been set out in full herein above.

I now set out the grounds of the preliminary objection challenging their competence. They are as follows: –

1a. Ground 1 of the Appellants’ ground of appeal is vague and discloses no reasonable ground of appeal.

b. The factual basis as contained in the particulars of the said Ground 1 are false.

2a. Ground 2 of the Appellants’ grounds of appeal is vague and discloses no reasonable ground of appeal.

b. The facts contained in particular ii of the said Ground 2 are not contained in the records.

c. The factual basis as contained in particular ii thereof of the said Ground 2 is false.

3a. Ground 3 of the Appellants’ grounds of appeal did not allege a misdirection or an error in law contrary to Order 3 Rule 2(2) of Court of Appeal Rules, 2002.

b. The said Ground 3 is a narrative and/or a conclusion contrary to Order 3 Rule 2(3) of the Court of Appeal Rules, 2004.

c. The said ground 3 is vague and does not disclose a reasonable ground of appeal.

4a. Issue (b) as formulated in the Appellants’ brief of argument has no bearing to the Appellants’ grounds of appeal.

b. Ground 2 of the Appellants’ grounds of appeal does not raise any issue for determination.

In dismissing the action before it, the lower Court remarked as follows: –

“The Court is not impressed with the reason stated in the letter as there is no explanation that counsel in the chambers were not available either to go to the Tribunal or to come to this Court to conduct the case. The reason advanced in the letter is just to frustrate the proceedings in this Court. This Court will not accept such situation where its proceedings (sic) in this Court must progress unhindered just as proceedings in other Courts. A Counsel taking a brief should take into consideration his commitment in other Courts.

There is nothing heard about A.C Chukwuma of Counsel for the Plaintiffs.

This case is just proceeding and 2nd Plaintiff is still being cross-examined. Defendant said he cannot go on without his Counsel. Plaintiffs present instructed (sic) the court that they cannot proceed without their Counsel.

In the circumstance the case is hereby dismissed. There will be no order as to cost.”

In arguing the preliminary objection, learned counsel to the Respondent Mr. O. A. Okpakpor attacked ground 1 in the notice of appeal as both vague and one that disclosed no reasonable ground of appeal. He also suggested that it did not relate to the decision of the lower court on 25/5/04. According to learned counsel every ground 0f appeal must relate to the decision of the lower court otherwise that ground will remain incompetent. He relied on FEDERAL MORTGAGE BANK OF NIGERIA VS. N.D.I.C. (1999) 2 SCNJ 57 and AKIBU VS. ODUNTAN (2000) 7 SCNJ 189. He urged this court to hold that ground 1 and its particulars does not reveal a clear and concise ground of appeal and proceed to strike out same as incompetent and to also discountenance any issue formulated therefrom.

Learned counsel attacked all the other grounds of appeal in similar fashion employing the same language and style. While relying on a number of decided cases he sustained his challenge and attack on all the grounds of appeal and urged this court to strike out same and disregard any issues formulated out of them for being non-issues.

In his reply, learned counsel to the Appellants, Mr. Ehighelua, countered that ground one complains of the error of the lower court in dismissing the suit of the Plaintiffs/Appellants and sufficient particulars had been given to show that, that ground is not vague. He referred to the decision in CBN VS. OKOJIE (2002) FWLR (PT.103) 349 at 357 A-B, where the Supreme Court held that:-

“Vagueness of a ground of appeal may arise where it is couched in a manner which does not provide any explicit standard for its being understood, or when what is stated is so uncertain that it is not susceptible to being understood —

—or the particulars are clearly irrelevant.”

Upon this decision, learned counsel submitted that ground 1 satisfied the requirements of the law and urged this court to so hold. While referring to grounds 2 and 3 and the record of proceedings as well as the arguments of learned counsel to Respondent, learned counsel Mr. Ehighelua made a very concerted effort to defend each of the grounds of appeal and continued to urge this court to find in favour of their competence.

I have carefully considered every fact of the arguments and submissions of respective learned counsel. Suffice it to say here that a ground of appeal must constitute in aggregate the reasons why the decision being appealed is considered wrong by the Appellant and the fulcrum upon which an appellate court is called upon or urged to set it aside. Because an appeal essentially is an invitation to a higher court to review the decision of a lower court to find out if, upon a proper consideration of the facts and evidence placed before it, and the law applicable, a just and fair decision was made, it is important that a ground of appeal must be succinctly couched that the other side will know the exact complaint against the judgment. Added to this, a ground of appeal must directly flow from the decision appealed and it must constitute a clear, elegant and accurate attack on the judgment or orders contained therein as well as the reasons advanced for arriving at the conclusion. See OJEMEN VS. MOMODU (1983) SCNLR 188.

I have carefully perused the 3 grounds of appeal in the notice of appeal herein together with the decision of the learned trial judge dismissing the suit of the plaintiffs as well as the various arguments of respective learned counsel. Having regards to the entire circumstance of this appeal, I am of the humble view that all the grounds of appeal are clearly related to and directly flow from the decision appealed against. They are not vague or misleading in any manner whatsoever. Without much ado I hold that the grounds of appeal herein are clearly relevant and competent. The preliminary objection lacks merit and it is hereby dismissed.

From the 3 grounds of appeal, learned counsel to the Appellants formulated the following 3 issues for determination in this appeal. They are:-

(a) Whether the trial court was right in dismissing the plaintiffs’ claims summarily without considering the evidence led in support of the claim;

(b) Whether the learned trial judge was right in dismissing the suit of the plaintiffs when counsel for the defendant had written for an adjournment; and

(c) Whether the entire proceedings of 25/5/2004 constitute a breach of the right of the plaintiffs to a fair hearing.

Learned counsel to the Respondent formulated the following 2 issues for determination. They are:.

(a) Whether the trial court was right, when it dismissed the Appellants’ claim in court on 25/5/04; and (Grounds 1 and 2)

(b) Was there a breach of the Appellants’ right to fair hearing in the trial courts’ proceedings on 25/5/04 (Ground 3).

I wish to start by first and foremost considering the submissions of learned counsel to the Appellants on issue 3 and the response to it in issue 2 as formulated by learned counsel to the Respondent. While referring to some of the undisputed facts in this appeal learned counsel to the Appellants explained that after refusing the application for adjournment, the learned trial judge did not inform the plaintiffs present in court of their right to call further evidence if they so desired. According to learned counsel, the court merely called upon the plaintiffs to proceed and they remarked that they could not in the absence of their counsel. Without affording the plaintiffs the opportunity to, at worst, consider engaging another counselor to find out why their counsel failed to be in court on that day, the learned trial judge sentenced their case to a pre-mature death.

Against this background, learned counsel argued and submitted that section 36 of the 1999 Constitution guarantees every citizen of Nigeria the right to fair hearing and anything done by any court or Tribunal to deny a citizen that right is null and void. He referred to the case of UCHE VS. OBINYA (2002) FWLR (PT.92) 1728 at 1735 where this court held that:-

“For a court to refuse an application for adjournment and thereafter dispose of the proceedings without allowing the applicant an opportunity to react is a breach of section 33(1) of the 1979 Constitution.”

Further to this, learned counsel referred to the case of GEORGE VS. GEORGE (2000) FWLR (PT.23) 1180 at 1188 – 1189 where this court in similar circumstances to this appeal held that where an application for adjournment was refused and the case was subsequently dismissed, it would be improper and would amount to a denial of fair hearing. Learned counsel referred to other decisions and submitted that the entire proceeding of 25th May, 2004 constitute a breach of section 36 of the 1999 Constitution and therefore to the extent of being a denial of fair hearing were null and void and of no effect in law whatsoever. He urged this court to resolve this issue in favour of the Appellants.

The response of learned counsel to the Respondent on this issue of the right to fair hearing vis-a-vis, the proceedings of the lower court on 25/5/04 with respect to this matter was mainly to emphasise that the learned trial judge observed all the laid down procedures in arriving at his decision to dismiss the suit of the plaintiffs. He then submitted that the proceedings of 25th May, 2004 did not constitute a breach of fair hearing. In a further effort learned counsel explained that the decision in the case of UCHE VS. OBINYA (Supra) referred to by learned counsel to the appellants was made on the basis of the decision in BAMAWO VS. GARRICK (1995) 6 NWLR (PT.401) 356 and the position in those 2 decisions did not support the case of denial of fair hearing being made by the appellants. He urged this court to so hold and dismiss this appeal.

I have very carefully considered all the submissions and arguments of respective learned counsel in this appeal. It must be pointed out here that the entire facts and circumstances of this appeal appear quite settled and well – defined. All the parameters are crystal clear. Suffice it to say here, by way of a recapitulation of the facts, that on an adjourned date, counsel to a defendant wrote a letter seeking for an adjournment of a matter that was adjourned at the behest of the court in open court in the presence of respective learned counsel and all the parties to the action, the adjournment was refused. Since it was the plaintiffs that were proving their case, the learned trial judge invited them to proceed. They showed an unwillingness to go on in the absence of their counsel.

For no other reasons apart from these the learned trial judge went ahead to dismiss the matter. There was a pending counterclaim. No reference was made to it in any manner whatsoever before the order of dismissal was made.

In the circumstance, the order of dismissal does not appear to be the type contemplated under Order 37 Rule 10 of the Bendel State High Court Rules 1988, applicable to the High Court of Delta State. This one appears to me to be in the nature of a final order.

It is axiomatic that where an application for an adjournment is made to a court, the court should bear in mind the requirement that justice should be done to both parties and that it is also in the interest of justice that the hearing of a case should not be unduly delayed. It should grant it if a refusal of the application is most likely to defeat the rights of the parties, altogether or be an in justice to one or the other of them.

A judge must not allow his judicial role as an impartial and unbiased arbiter to be swayed by the conduct of an inept, indolent or lazy counsel. The question whether a court will grant an application for an adjournment is purely a matter within the discretionary power of a judge which he invokes daily in the court. The discretion must be exercised not only judicially but, also judiciously and in the interest of justice to all the parties. The moment a trial judge exercises his discretion judicially and judiciously an appellate court will be very wary to intervene, even though it may have exercised that discretion differently ODUSOTE VS. ODUSOTE (1971) I ALL NLR 219 and ARIORI & ORS. VS. ELEMO & ORS (1983) I SC 12. Where a judge is seen not to have balanced his discretionary power to grant an adjournment an appellate court could intervene – ONONUJU VS. ONONUJU (1991) 5 NWLR (PT.192) 479.

Where in a civil matter, the plaintiff appears and the defendant who has entered appearance and filed a statement of defence failed to appear the plaintiff must proceed to prove his case if he is desirous to have judgment entered in his favour. MOLAJO VS. ALAO (1971) 2 ALL NLR 243.

Where a trial judge refuses an application for adjournment of a case set down for hearing, he must immediately invite the party or his counsel to proceed to trial and rule on the response to that invitation before proceeding to dismiss the case; failure to do so is fatal to any judgment or order made thereafter. AGHADIUNO VS. ONUBOGU (1998) 5 NWLR (PT.548) 16. While referring to old case of ODUSOTE VS. ODUSOTE, (Supra), the Supreme Court in the case of RASAKI SALU VS. MADAM TOWURO EGEIBON (1994) 6 NWLR (PT.348) 23 held at P.45A that the granting of an adjournment is dictated by the circumstances of each case. The court also held that an adjournment should not be refused if it is the only just way of having a matter decided on its merit because a case terminated before its merit is fully known may in many instances defeat the end of justice as the parties may thus be denied the right to put before the Court the whole evidence available.

In the instant appeal, it did not appear to me that in the circumstances there was any good, sufficient or justifiable reason or cause for the refusal of the application for adjournment. This is moreso when the adjournment sought was indeed for a very short period. Refusal to grant this application and going further to dismiss the entire suit of the plaintiffs, as well as the counterclaim amounted to rubbing salt to injury and throwing away the baby with the bath water. Counsel is entitled to be believed by the court when there is no fact to the contrary. The letter of learned counsel to the defendant is one of such types of letters that we, as judges, are confronted with, daily in the course of our adjudicatory duties. Some are quite harmless and sufficiently innocuous, though others may not be so harmless. However, in the circumstance of this matter, the letter has sufficiently adduced enough grounds to warrant the adjournment being granted. Added to this the plaintiffs and their counsel did not oppose the adjournment.

The expression “fair hearing” in section 36 of the 1999 Constitution means the trial of a case or conduct of proceedings according to all relevant rules for ensuring justice. In that regard, the rules of court, principles of practice and procedure as well as the rules of natural justice are a very significant benchmark. See ARIORI VS. ELEMO (Supra). The consequence of a breach of the rule of natural justice or fair hearing is that the proceedings in the case are null and void. If a principle of natural justice is violated it does not matter whether if the proper thing had been done the decision would have been the same. See ADIGUN VS. A.G. OF OYO STATE (1987) 1 NWLR (PT.53) 678.

In the instant appeal, the question whether there was anything which made the refusal of an application for an adjournment for a very short period to appear or look like a denial of fair hearing must be answered in the affirmative. The denial of fair hearing is more pronounced and emphatic when viewed from the angle that the plaintiffs were shut out midstream and prevented from presenting the whole latitude and amplitude of their case, while the defendant was totally shut out from proving his counterclaim.

The grant or refusal of an application for an adjournment involves an exercise of judicial discretion and, being a judicial discretion, it should not be seen to be exercised erratically, arbitrarily or in a capricious manner, but should be seen to have been exercised judicially and judiciously. When the lower court refused to grant the adjournment sought by learned counsel to the defendant and which was not in any manner whatsoever opposed by the other side, that would, in my view, amount to a denial of the Constitutionally guaranteed right to fair hearing and a manifest in justice to both the plaintiffs and the defendant. This is irrespective of the position taken by learned counsel to the Defendant/Respondent in this appeal.

I have closely studied the short record of proceedings in this appeal and have come to the definite conclusion that although the question of the adjournment of a case is at the discretion of the court, the learned trial judge in the present case was clearly in error in all the circumstances of the case by refusing to grant the adjournment applied for by the defence. The application was refused inspite of the fact that learned counsel to the plaintiffs did not oppose it and there was nothing on record to suggest that it was made mala fide or without justification. It seems to me plain and crystal clear that this refusal on the part of the learned trial judge to exercise his discretion in favour of the adjournment applied for and leading to the sudden and unexpected closure of the plaintiffs’ case without calling their remaining witnesses or allowing the defendant the opportunity to prosecute his counterclaim amounts to a deprivation of the rights of the parties to fair hearing and to obtain substantial justice in the matter.

This issue of denial of fair hearing as argued by respective learned counsel must be resolved in favour of the appellants and I accordingly so do. On this issue alone, this appeal succeeds and it is hereby allowed. I do not see any reasons to go into the other issues argued by respective counsel in this appeal as this issue has sufficiently disposed of this appeal. In consequence of all these, the order of the learned trial judge dismissing suit No.W/254/2002 is hereby set aside. Suit No.W/254/2002 is hereby restored and same is remitted to the Honourable Chief Judge of Delta State High Court for re-assignment to another judge of the Court, other than Anigboro, J.

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Other Citations: (2008)LCN/2955(CA)