Rev. Obiora Okezie Agbogu V. Geofrey Adiche (2002)
LawGlobal-Hub Lead Judgment Report
AKPABIO, J.C.A.
This is an appeal against the judgment of S.M.B. IBEZIAKO J. of Anambra State High Court, holden at Ogidi in Idemili Judicial Division in suit No. 0/183/89; HID/805/95 delivered on 17th December, 1998, wherein he dismissed plaintiff’s suit for declaration of entitlement to customary/statutory right of occupancy in respect of certain lands in dispute; N1,000.00 damages for trespass and perpetual injunction, but rather awarded title to the said land to the defendant in accordance with his counter-claim for almost identical reliefs with N1,000.00 costs against the plaintiff.
It should be stated at this initial stage that at the trial court the original plaintiff was one Crawford Agbogu, while the original defendant was one Michael Adichie. The original parties later died, and were substituted with the present plaintiff and defendant now on record.
The claim of the original plaintiff was worded as follows:
“CLAIM
The plaintiff claims as follows:-
- A declaration that the plaintiff is entitled to the grant of a customary right of occupancy in respect of a piece or parcel of land situate at Ikenga Village, Ogidi on which plaintiff built his homestead in 1930. The annual value of the said land is about N200.00.
- N1,000.00 (One thousand naira) general damages for trespass on the said land.
- Perpetual injunction restraining the defendant, his servants, agents and privies from unlawfully entering into, remaining on, or interfering in any way whatsoever with the plaintiff’s use, enjoyment and possession of the said piece or parcel of land situated at Ikenga Village, Ogidi, on which plaintiff built his homestead and has been living on since 1930.
DATED AT ENUGU this 10th day of July, 1989.
In response to the statement of claim filed by plaintiff, the defendant later filed a further amended statement of defence and counter-claim dated 20th October, 1997, wherein he counter-claimed from the plaintiff as follows:-
“7. Defendant denies that plaintiff is entitled to the claims in paragraph 15 of statement of claim and counter-claims against plaintiff for:
(a) A declaration that defendant or Adichie family is entitled to a right of occupancy of the land verged green on defendant’s said survey plan.
(b) Injunction restraining plaintiff and his agents from interfering with Adichie family rights in and possession of the said land.
(c) N100,000.00 damages.
Dated this 20th day of October, 1997.”
The evidence in support of plaintiff’s claim may be summarized as follows:-
The plaintiff was the beneficial owner in occupation of all that piece or parcel of land situate at Ikenga Village, Ogidi within jurisdiction of the court. A survey plan of the said land was later filed, tendered and admitted at the trial as exhibit ‘A’. It was averred that the customary landowners of the said land in dispute were originally the Dualo Family of Odida Quarters in aforesaid Ogidi and was sold to the plaintiff on or about 15th June, 1930 at the purchase price of ?16 (Sixteen pounds). The purchase receipt was later tendered in court. According to plaintiff, in addition to the payment of the purchase price, he also fulfilled all the customary and traditional formalities necessary for the customary transfer of land.
Then on or about 25th May, 1970 around 6 a.m., members of Adichie family (i.e. the defendants) invaded the land in dispute armed with matchets and other fighting implements. As plaintiff was in the house with only one of his sons, he found himself greatly outnumbered by the defendants. The defendants invaders then set out to damage all the economic crops on the land, and even made farm ridges up to the frontal foundation of plaintiff’s main building. In view of the numerical superiority of the invaders, the plaintiff did not engage them in any combat, but rather went and made a complaint to his customary landlords, the Odida Quarters, who sent for the defendants to come and explain their actions, but they refused to go even after a second invitation. Subsequently, plaintiff lodged a formal complaint to the Ndichie of Ogidi in keeping with the Ogidi native law and tradition of exhausting all local remedies before going to court. In their judgment, the Ndichie asked both the plaintiff and defendants to administer native oaths to each other, which plaintiff refused to do as “barbarous, unconscionable and contrary to justice.” At the hearing before the Ndichies the plaintiff’s grantors (or vendors) testified and confirmed that the land in dispute originally belonged to them, and that they granted same to the plaintiff. The defendants on the other hand claimed that the land in dispute had always originally belonged to their family. After the judgment of the Ndichies, plaintiff appealed to the Igwe-Ogidi-in-Council, but he was constrained to withdraw his appeal and instead instituted the present proceedings in the High Court when certain members of the said Council began to demand bribes and gratification. Copies of the record of proceedings both before the Ndichies and the Igwe-Ogidi-in-Council were later tendered as exhibits at the High Court trial already set out above.
In reply to the above, the defendant filed a brief “further amended statement of defence and counter-claim in which they denied all the material averments made by the original plaintiff in his statement of claim. Instead, they averred that the land in dispute was originally founded by their ancestor by name ADICHIE, who deforested the virgin forest and settled thereon. They then gave a chronology of the people through whom the land in dispute descended from Adichie to his two sons Nwosisi and Emelarom, and from them to Michael and Isaiah, and like that down to the present defendant Adichie. According to defendants before 1930 C.M.S. Central School was built there with Igwe Amobi’s permission and Adichie family’s consent, and when the school was removed from there, the land reverted to defendant’s family who resumed possession and enjoyment of the land. Neither the plaintiff nor Odida people ever owned any part of the land in dispute. The defendants then counter-claimed from the plaintiff as already set out above. So far so good.
However, at the hearing of the suit before Ibeziako, J. things began to fall apart. According to the plaintiff in their brief subsequently filed in this case, the plaintiff had called five witnesses including himself, and also tendered four exhibits, after which the present defendant opened his defence. The defendant testified for himself and also tendered three exhibits. It was at the stage of cross-examination of the defendant that things began to fall apart. The main complaint of the plaintiff was set out under paragraph 3 of his brief as follows:-
“After many days of hearing, case was adjourned to 16/12/98 for continuation of further cross-examination of defendant. On said 16/12/98, plaintiff was present. He was represented throughout the trial by counsel in the Chambers of Dr. I.A. Okafor, SAN. That day, 16/12/98, no counsel from this Chambers came to represent him.
Instead, one C.S. Okpala, Esq. appeared for the plaintiff and applied for adjournment. He stated that he was unable to proceed with the cross-examination as he did not have the case file. The learned trial Judge ruled that the case must proceed that day. Accordingly, he ordered C.S. Okpala, Esq. to remain in court while the case proceeded.
Further, he closed the cross-examination of the defendant testifying as DW 1 and ordered the defendant’s counsel to proceed to address the court. He did not call upon plaintiff to proceed with the cross-examination, if he can, but after the respondent’s counsel had completed his address, he turned on plaintiff to ask whether he had anything to urge.
Plaintiff replied that he did not know the technicalities of law but asked for judgment on his behalf. The learned trial Judge then adjourned for judgment the next day, 17/12/98. In the judgment, he dismissed plaintiff’s claim and awarded defendant his counter-claim.”
It is based on the above complaint that the plaintiff was now appealed to this court and formulated the following six issues for determination:-
“i. Whether in the circumstances of the proceedings on 16/12/98, when the learned trial Judge refused appellant’s application for adjournment, closed the cross examination of DW1 on behalf of appellant, unilaterally closed the case for the defence and called upon respondent’s counsel to address the court, and adjourned to 17/12/98 for judgment, the learned trial Judge had not descended into the arena in favour of the respondent?
ii. Whether the judgment of the court below contained the constituent parts necessary to qualify it as a valid good judgment?
iii. Whether the learned trial Judge was right when he held that the traditional evidence adduced by the appellant was obviously porous and contains no substance to rely on?
iv. Whether the learned trial Judge’s evaluation of exhibits E, F and G as being consistent with the evidence of defendant and as awarding judgment to defendant was correct?
v. Whether plaintiff did not prove acts of possession over the land in dispute through exhibit D and oral evidence?
vi. Whether the learned trial Judge was right when he dismissed plaintiff’s claim and gave judgment to the respondent on his counter-claim?”
The plaintiff will hereinafter in this judgment be referred to as the “appellant”.
As regards the complaint of high handedness or “descending into the arena” made against the learned trial Judge by the appellant, the defendants who will hereinafter be referred to as the respondents stated their own version of the incident at the trial court at paragraphs 9 – 11 of the respondent’s brief as follows:-
“9. On 16/12/98 the said plaintiff’s counsel Dr. Ilochi Okafor S.A.N. now became totally absent from the court, again without any disclosed reason. However, one C.S. Okpala who had earlier appeared twice in the case (on 10/4/97) and (30/7/97) announced himself as holding the brief of Dr. Okafor S.A.N. He claimed he could not go on with the cross-examination. He also claimed he did not have the case file and that Dr. Okafor S.A.N. had it. He did not say why Dr. Okafor (SAN) gave him his brief without giving him the case file. He did not explain Dr. Okafor’s absence but simply asked for an adjournment of the case, not to the next day or the next week but to 27/1/99, the next year, when the case was by agreement of both counsel and the court being expedited to be concluded before the Judge retired in December, 1998. No material whatsoever was placed before the court in support of the application for adjournment.
- The defendant’s counsel opposed the application on the grounds, inter alia, that it was a delay tactic to have the case started de novo and that the last adjournment was at the instance of Dr. Okafor S.A.N.
- The court in its ruling rejected the application for adjournment as frivolous, made in bad faith and designed to cause delay, and insisted the case must go on. It closed case of the defendant and called for address. While the defendant’s counsel was addressing the court, the said C.S. Okpala collected his papers and walked out of the court room without the leave of the Judge. At the end of the defendant’s counsel’s address the court called on the plaintiff to address the court if he wished, in view of his counsel’s departure and absence without leave. The plaintiff asked for judgment to be given in his favour. The case was adjourned to 18/1/98 for judgment. On that day, both Dr. Okafor S.A.N. and C.S. Okpala Esq. continued to be absent without any disclosed reason, though the plaintiff was present and the defendant and his counsel were also present. Judgment was delivered dismissing the plaintiff’s claims and granting the defendant’s counterclaim. The plaintiff has now appealed against that judgment.”
After the above explanation, the respondents also formulated three issues for determination as follows:-
“(i) Whether the learned trial Judge was right or justified in dismissing the plaintiff’s claims and granting defendant’s counter-claim?
(ii) Whether the judgment was rendered defective or invalid by any other feature?
(iii) Whether there was a descent into the arena prejudicial to the plaintiff or resulting in a miscarriage of justice?”
I have carefully considered all the issues formulated above by learned counsel on both sides, and consider the first issue formulated by the appellant’s counsel to be crucial or most important, as it amounted to a complaint of lack of fair trial, which if found to be true will render the entire trial a nullity regardless of how well conducted the trial might have been otherwise. “Justice must not only be done, but must be seen to have been done.”
As the facts alleged by the appellant to constitute an unfair trial or a descent into the arena have already been set out above, from the briefs of both parties, I do not consider it necessary to reproduce the arguments of both counsel as such would be a repetition. All that now remains is for me to consider whether those facts (which are undisputed) rendered the trial unfair, and therefore a nullity. If I come to that decision, it will become unnecessary to consider any of the other issues for determination. But if I find that notwithstanding these lapses, the trial was substantially regular and fair, I should then proceed to consider the other issues for determination.
I now proceed to consider Issue No.1 formulated by the appellant viz:-
“1. Whether in the circumstances of the proceedings on 16/12/98, when the learned trial Judge refused appellant’s application for adjournment, closed cross-examination of DW1 on behalf of appellant, unilaterally closed the case for the defence and called upon respondent’s counsel to address the court, and adjourned to 17/12/98 for judgment, the learned trial Judge had not descended into the arena in favour of the respondent?”
After a careful consideration of all the circumstances enumerated in the above issue, I am of the considered view that the question for determination is whether in view of the above facts the trial at the court below could be said to have been a fair trial. A fair trial consists of two principal ingredients and a third ancillary one.
The two principal ones are embraced in the Latin maxim (i) “Audi alteram partem (Hear the other side) and (ii) Nemo judex in causa sua (No man should be a Judge in his own cause) (iii) The third ingredient which I call ancillary is whether an ordinary and independent man observing the trial can come out from the court and say that the trial has been fair to both parties. This is usually put another way by saying that justice must not only be done, but must be seen to have been done.
In order to decide whether the trial in the instant case was fair or not I have had to look at other similar cases on all fours with the instant case which the superior courts have held to be either fair or unfair, and found the following to be pertinent.
First, is the case of R.C.C. Ltd. v. Okpegboro (2000) 2 NWLR (Pt. 645) 367 where the Court of Appeal (Benin Division) Per AKINTAN, J.C.A. held inter alia at P.374:
“On Requirements of fair hearing:-
The requirement that equal treatment, equal opportunity and equal consideration be given to all concerned is not breached in situation where a party was afforded the opportunity to be present at the trial to present his case or to defend himself but he deliberately refused to avail himself of such an opportunity through his own neglect or tardiness, since the law does not aid the indolent. The rule only comes to play where a party is denied any opportunity to be heard.”
Another case similar to the above was the case of Buzu v. Garabi (2000) 13 NWLR (Pt. 684) 228 decided by the Court of Appeal, (Jos Division) where UMOREN J.C.A had the following to say at pages 238 and 239:-
“On connotation of fair hearing as enshrined in section 33 of 1979 Constitution:-
Fair hearing as encompassed in section 33 of the 1979 Constitution is not an imaginary proposition. It is a
state of affairs that consists of many ingredients. It encompasses not only compliance with the twin rules of natural justice, namely, audi alteram partem and nemo judex in causa sua, but entails compliance with all the provision of section 33 of the 1979 Constitution. It also entails doing, during the course of trial of a civil or criminal action, all things which will make an impartial observer leaving the court room to believe that the trial has been balanced and fair to both sides to the trial. In the instant case, the respondent was given ample opportunity to present his case before the Upper Area Court but chose to be absent from the court. In the circumstances, the Upper Area Court gave him fair hearing [Kim v. State (1992) 4 NWLR (Pt. 233) 17 referred to.] (PP 238, paras. B-E; 239, paras. A-D).
See also the Supreme Court cases of Dr. Bamgboye v. University of Ilorin (1991) 10 NWLR (Pt. 622) 290 and the case of Omo v. J.S.C. Delta State (2000) 12 NWLR (Pt. 682) where the Supreme Court, Per KATSINA-ALU, J.S.C. wrapped up the matter by saying that “a person who had opportunity of being heard but failed to utilise same could not turn round and complain of breach of fair hearing.”
However, a case which went the other way, and which was on all fours with the instant case was the case of Grace Offor v. The State (1999) 12 NWLR (Pt. 632) 608 in which the trial court had refused to allow appellant’s new counsel to address the court, and convicted her of the offence of obtaining money under false pretence.
In appeal to the Court of Appeal, Port Harcourt Division, the appeal was allowed and the conviction quashed. In allowing the appeal, the court made a number of far-reaching pronouncements Per ONALAJA, J.C.A., prominent among which are the following:-
“On Meaning and test of fair hearing:-
A fair hearing does not mean a fair trial. A fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice and been done in the case. [Mohammed v. Kano N.A. (1968) 1 All 424 referred to.] (P. 622, paras. E-F) Per ONALAJA, J.C.A. at page 622, paras. C-F:
“Fair hearing has ancient origin dating to the melodramatic incident in the garden of Eden as stated by Fortescue J. in R. V. Chancellor Master and Scholars of the University Cambridge (1723) 1 STR 557. ‘Even God himself did not pass sentence upon Adam before he was called upon to make his defence.’ With our concern on one of its twin pillars Audi Alteram partem that is (hear the other side). What is fair hearing?
Was answered by Ademola CJN in the often quoted and celebrated case of Isiyaku Mohammed v. Kano Native Authority (1968) 1 All NLR page 424 that:-
‘It has been suggested that a fair hearing does not mean a fair trial? We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case.’
“On Effect of breach of right to fair hearing:-
The right to fair hearing being a fundamental constitutional right guaranteed by the Constitution, the breach of it in any trial or investigation or inquiry nullifies the trial, and any action taken on them is also a nullity. In the instant case, the appellant was denied the fundamental right of freedom of choice of counsel by the trial court’s refusal to allow the learned counsel who appeared and announced appearance for the appellant. [Obomhense v. Erhahon (1993) 7 NWLR (Pt. 303) 22 at 47 referred to.] (P. 623, paras. C- F)”.
“On Right to make final address:-
Judicially interpreted, section 258(1) of the 1979 Constitution vests a right in the parties to make final addresses and where one of the parties makes his final address the other party must be given opportunity to reply or give his own final address before pronouncement of judgment. A denial to one party from giving his final address whilst the other party is allowed is an infraction of the rule of natural justice of audi alteram partem…”
Although Offor’s case was criminal case, while the instant case was a civil case, yet I consider them to be on all fours as the complaint in each case was the same, namely failure by the learned trial Judge to give the appellant’s counsel opportunity to address the court.
A trial in which one party’s counsel was given opportunity to address the court on law and facts and the other party not given, cannot in my respectful view be said to have been fair. I do not think the court could have lost anything by giving the appellant at least one adjournment for his counsel to come and address the court. It is on record that the appellant himself has always been in court even where his counsel was absent. Also, it must be observed that the learned trial Judge appeared to have been in too much of a hurry to complete the case and deliver judgment before proceeding on his retirement.
It is a well known maxim that “justice delayed is justice denied.” I think the same thing may be said for a situation where justice is hurried or rushed. To me, a situation in which a 29-paged judgment was written overnight and delivered the very next morning was not good enough. The learned trial Judge should have given himself adequate time to have digested and reflected on all the facts and law on the matter. There is also the fact that all the irrational behaviours, or absence from court without reasons or walking out of court without leave, complained about in this case, were all made against the learned counsel for appellant, and not the appellant himself, who was present in court at all material times. It is our law that “the sins of the counsel should not be visited on his client” Doherty v. Doherty (1964) 1 All NLR 299.
In view of the foregoing, I am of the firm view that the appellant did not receive a fair trial in this case. This appeal therefore succeeds and is hereby allowed. The judgment of the learned trial Judge is hereby set aside and a fresh trial by another Judge of the Anambra State High Court is hereby ordered.
Costs of this appeal are assessed at N4,000.00(Four thousand naira only) in favour of the appellant.
Other Citations: (2002)LCN/1095(CA)
