Titus Ukwueze V. Raphael Ani & Anr. (2007)

LawGlobal-Hub Lead Judgment Report

JAMES OGENYI OGEBE, J.C.A.

The plaintiff/respondent’s claim against the defendant/appellant before Enugu High Court is (1) for a declaration that the plaintiff/respondent is entitled to a statutory right of occupancy over a piece or parcel of land situate at Ugbene Nike, in Enugu East Local Government Area within jurisdiction which is registered as No. 61 at page 61 in volume 836 of the Land Registry, Enugu; the annual rental value is N500.00.

(2) The defendant/appellant recently went into part of the aforesaid piece or parcel of land without the consent and or permission of the plaintiff/respondent, uprooted the crops and destroyed other plants thereon.

(3) N2,000.00 damages for trespass.

(4) Injunction restraining the defendant/appellant, his servants, agents, privies and/or proxies from further acts of interference, obstruction, and/or trespass with or disturbing the plaintiff/respondent’s use and enjoyment of the said land.

On 17/2/2000 the appellant filed a counter-claim against the respondent whereof he claimed as follows:

(i) A declaration that the plaintiff/respondent bought a piece or parcel of land situate at Ugbene Nike, measuring 50 feet by 100 feet from Edward Ijeh and Umuenwene Iji Nike Community in 1975.

(ii) An order that the Deed of lease registered as No. 61 at page 61 in volume 836 of the Lands Registry, Enugu be set aside for fraud or in the ALTERNATIVE that same be amended to reflect the actual size of the plot of land that was sold to the plaintiff/respondent i.e. 50 feet by 100 feet.

(iii) A declaration that the defendant/appellant is entitled to and is deemed to be the holder of a statutory right of occupancy over that piece or parcel of land measuring 60 feet by 100 feet sold to him by the Umuenwene Iji Nike Community and verged pink in the defendants/appellant’s Survey Plan number LHC/EN/DS/003/99 dated 17/11/99 and bounded with beacon numbers BX4699, BX4700, BX4698 and CJ6014.

Pleadings were filed and exchanged and hearing thereafter commenced.

“1. Whether from the totality of evidence before the trial court the plaintiff did not satisfy the onus and standard of proof requisite to prove, and be entitled to her claim.

2. Whether in the circumstances of the case, the absence of addresses of counsel who did not avail themselves of the opportunity to address resulted in any miscarriage of justice (to the defendant) such as to vitiate or nullify the judgment in this case.”

During the course of argument of this appeal the learned counsel for the appellant drew attention to the fact that on the 10th of March, 2003 the trial judge Agbata J. adjourned the case to the 25th of March for continuation. Thereafter nothing was shown on the record until the 19th of May, 2003 when judgment was delivered.

It is apparent therefore from the record that the judgment was delivered without the hearing of the case being concluded. In other words, the parties had not concluded their cases and addressed the court before judgment was given.

The learned counsel for the appellant submitted that this was a serious breach of the principle of fair hearing. He relied on the case of Obodo v. Olomu (1987) 3 NWLR (part 59) 111, Union Bank of Nigeria Ltd. v. Ajagu (1990) 1 NWLR (Part 126) 328.

The learned counsel for the respondent at first submitted that the failure of the learned trial judge to take the addresses of counsel before the delivery of his judgment did not lead to miscarriage of justice but when his attention was drawn to Section 294(1) of the 1999 Constitution he capitulated.

Section 294 (1) reads:

“Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.”

It is clear from this section of the Constitution that final addresses by counsel are recognized by the Constitution as a crucial stage of a hearing of a matter before judgment is delivered.

This is also the import of the case of Obodo v. Olomu (1987) 3 NWLR (part 59) 111 at pages 123-124 where Obaski JSC opined as follows:

“The hearing of addresses by every court established by the Constitution of the Federal Republic of Nigeria is recognized by the Constitution. It is to be given before judgment is delivered. See Section 258(1) of the Constitution of the Federal Republic of Nigeria 1979. Its beneficial effect and impact on the mind of the judge is enormous but unquantifiable. The value is immense and its assistance to the judge in arriving at a just and proper decision, though dependent on the quantity of address cannot be denied. The absence of an address can tilt the balance of the learned judge’s judgment just as much as the delivery of an address after conclusion of evidence can.”

It follows therefore that the failure of the trial judge to conclude the hearing of the case by taking addresses from counsel prior to the delivery of his judgment was a serious breach of the principle of fair hearing provided for in the Constitution.

The judgment is therefore a nullity and must be set aside. This issue alone disposes of the appeal and it will be improper to discuss the other issues in this case in order not to prejudice the retrial of the case. In the final analysis this appeal is allowed and the judgment of the trial court is hereby set aside. The case is remitted to the Chief Judge of Enugu State for reassignment to another judge for trial de novo.

From the circumstances of this case I make no order as to costs.

Other Citations: (2007)LCN/2298(CA)