Uwakwe Ugwu & Ors V. Christopher Attah & Ors (2016)
LawGlobal-Hub Lead Judgment Report
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
This is an appeal against the decision of the Enugu State High Court, delivered by Hon. Justice A. O. Onovo, J., on the 23rd day of July, 2012. This suit was filed by the plaintiffs/respondents (for themselves and as representing Amogbo Community, Nsukka) against the defendants/appellants (for themselves and as representing Umu Ugwu Arua family, Amaeze Owerre Village Ihe/Owerre Autonomous Community). The suit borders on the alleged trespass into the plaintiffs/respondents’ land by the members of the defendants/appellants’ family. The plaintiffs/respondents were by the said suit claimed for the following reliefs:
“(a) N500,000 damages for trespass on portion of plaintiffs’ Amaogbo Uno land by the defendants.
(b) Perpetual injunction restraining the defendants, their servants, agents, privies or any person claiming through them from further trespass on the said land of plaintiffs.”
After the service of relevant processes and the refusal and/or neglect on the part of the defendants/appellants to either enter appearance or file any process in defence to the suit at the
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appropriate time, the plaintiffs/respondents brought a motion on notice filed on 17/5/2012, seeking in the main for the order of the lower Court; “entering judgment in favour of the plaintiffs against the defendants in accordance with the plaintiffs’ claim”.
Again, the defendants/appellants failed and/or neglected to either properly enter appearance and file their relevant processes in defence to the suit, or file a counter-affidavit in opposition to the plaintiffs/respondents’ motion at the appropriate time. However, a day to the hearing of the plaintiffs/respondents’ motion for judgment, the defendants/appellants brought a motion on notice for extension of time and another motion on notice on the 11th day of June, 2012 to be precise, for extension of time “within which the Defendants/Applicants may file counter-affidavits to the motion on Notice for default judgment dated 17th day of May, 2012” with deeming order. Both motions on notice were duly heard and dismissed by the lower Court for being incompetent, while the plaintiffs/respondents’ motion on notice for default judgment, was granted. Consequently, a date was fixed for the said
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judgment.
Before the date fixed for delivery of judgment, the defendant/appellants brought yet another motion on notice dated and filed on the 13th day of June, seeking for the following reliefs:
“1. Leave of the honourable Court to hear this Motion on Notice for extension of time first before delivering the Court’s Default Judgment in this case.
2. An order extending time within which the Defendants/Applicants may front-load their Memorandum of Appearance, Statement of Defence, Defence Survey Plan, List of Witnesses and Written Statement of witnesses.
3. An order deeming the Defence processes filed out of time without the prior order of the Court as duly filed and served the necessary fees having been paid.”
The learned trial judge duly heard and considered the said application on the merit, granted only their first prayer and refused the rest, for the failure of the defendants/appellants to have placed necessary materials before him in order to justify their being entitled to the grant of the said prayers. Thus, the motion was also dismissed for being incompetent. On the same day, the learned counsel to the
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plaintiffs/respondents, Kate Eyiuche (Mrs.) applied to withdraw the first arm of the appellants’ claim as contained in their statement of claim (that is, Paragraph 17 (a)) which is already slated for judgment. The said application in the absence of any opposition was granted by the learned trial judge, who thereafter entered judgment in favour of the plaintiffs/respondents on the remaining claim/relief.
Expectedly, the defendants/appellants being dissatisfied with the said judgment of the lower Court, caused an appeal to be lodged against the same vide a notice of appeal filed on the 16th day of August, on the following grounds which are reproduced below without their particulars:
“GROUND ONE
The trial Court breached the rule of fair hearing when the Court delivered a default judgment in this case when the defendants have filed their statement of defence, survey plan and written statement of witnesses before the Court delivered its judgment.”
“GROUND TWO
The trial Court erred in law in relying on a previous judgment that was neither pleaded nor given in evidence by the plaintiff and this occasioned a grave miscarriage of
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justice.”
“GROUND THREE
The trial Court misdirected itself on facts when the Court held that the OhaIhe/Owerre on the fore bears or predecessors in-title to the defendants.”
“GROUND FOUR
The trial Court misdirected itself on fact and thereby came to a wrong conclusion when the Court held that suit No. E/54/67 was a defended suit against the forebears of the present defendants.”
Henceforth in this judgment, the plaintiffs/respondents shall be called the respondents while the defendants/appellants shall be called the appellants. In accordance with the rules of this Court, the parties filed and duly exchanged their respective briefs of argument. The appellants’ brief of argument and reply brief were prepared by Chief M. E. Eze, ACI Arb, and filed on the 9th day of November 2012 and the 2nd day of January, 2013 respectively. The respondents’ brief of argument on the other hand was prepared by C. C. Ezekwem, Esq. It was filed on the 18th day December, 2012.
The learned counsel to the appellants in the appellants’ brief formulated the following issues for determination of this appeal:
“(i) Whether or not the trial Court
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breached the rule of fair hearing in the manner it exercised its discretion in this case.
(ii) Whether or not the trial Court was justified in relying on a previous judgment in suit No. E/54/67 which was neither pleaded nor given in evidence.”
The learned counsel to the respondents on his own part despite his acclaimed reservations with the issues formulated by the appellants’ counsel still went ahead and adopted the same for the resolution of this appeal. In this circumstance, the issues as distilled by the learned appellants’ counsel are hereby adopted for the determination of this appeal.
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ARGUMENT ON ISSUES
The learned counsel to the appellants contended that the learned trial judge deprived the appellants of their right of fair hearing when he failed to exercise his discretion enlarging the time within which the appellants are expected to file their statement of defence, pursuant to a motion on notice brought by them. He further argued that in so far the lower Court has not delivered its judgment; it has the ultimate discretion to grant the prayer for extension of time sought by the appellants. He referred us to the case of
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First Bank of Nigeria Plc v. T.S.A. Industries Ltd. (2010) All FWLR (Pt. 537) 633.
The learned counsel further contended that the lower Court “was too much in a hurry because all the necessary defence processes had been filed before it proceeded to enter a default judgment in favour of the respondents who were the plaintiffs in the Court below.”
According to the learned appellants’ counsel, this is because the appellants “were in default for only 2 days when the plaintiffs filed their motion for default judgment.”
The learned counsel conceded that the lower Court has the discretion in granting or refusing the application for extension of time. However, he further argued that such exercise of discretion must be done judicially and judiciously. Again, that in this case, the learned trial judge was more inclined to undue technicality as against substantial justice, contrary to or in contrast to the more recent judicial position of leaning more to doing substantial justice and hearing cases on their merits. He referred us to the cases of Oloruntoba -Oju v. Abdul-Raheem (2009) All FWLR (Pt. 497) 1 @ 29. He added that the injustice is more
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pronounced based on the fact that the respondents did not oppose their application, “and even asked” for costs of N15,000.00; yet the lower Court refused the said application.
In addition, the learned counsel contended that notwithstanding the fact that Order 20 Rule 12 of the High Court Rules of Enugu State, 2006 classified the judgment of the lower Court as final “judgment by default.” It shall be a judgment which remains valid. Nevertheless, the said judgment is still regarded as default judgment in the sense that the appellants were not heard on the merits. He referred us to the case of Bello v. INEC (2010) All FWLR (Pt. 526) 397 @ 457. He submitted that the principle of fair hearing has been enshrined in Section 36 (1) of the Constitution. It is thus superior to the High Court Rules. According to the learned counsel, where a party has been denied of his right of fair hearing in a case (as was done to the appellants) the judgment resulting therefrom is liable to be set aside. He relied on the Supreme Court cases of Adebayo Ogundoyin v. David Adeyemi (2001) 7 SCNJ 187, and Kotoye v. C.B.N. (1989) 2 SCNJ 31. He therefore urged this Court to hold that
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the lower Court breached the rule of fair hearing of the appellants by entering default judgment against them when they have filed their defence and front loaded witnesses statements with survey plan. We were then urged to resolve this issue in favour of the appellants.
The learned counsel to the respondents in reply first pointed out to this Court that there are two (2) decisions delivered by the lower Court on the 23rd day of July, 2012 with respect to this case. He observed that the first was the ruling which refused the appellants’ motion on notice for extension of time, while the other was the judgment of the lower Court with respect to the substantive suit. It was therefore emphasized that it was the latter decision that formed the subject matter of this appeal. Thus, learned respondents’ counsel contended that the arguments proffered by the learned counsel to the appellants with respect to this issue were based on the ruling of the lower Court which was not the gravamen of this appeal. Thus, he urged us to discountenance the arguments, since the same has no bearing to or foundation in this case.
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However, he stated that if this Court is
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minded to consider the arguments, he counter argued that the contention of the appellants’ counsel that the lower Court refused their application because it held it was functus officio was highly misconceived. The learned counsel maintained the standpoint that the said application for extension of time, filed by the appellants and taken before the lower Court delivered its judgment was considered on the merits and found to be incompetent. On the issue of delay, the learned respondents’ counsel stated that contrary to what the appellants’ counsel had earlier stated, the appellants were actually in default for a whopping period of 69 days before they filed their motion on notice for extension of time without even bothering to accompany it with the requisite processes, and without a genuine or justifiable excuse. Thus, he maintained that the lower Court was right when it held that the delay was occasioned by ineptitude of the appellants. The learned counsel further argued, that the learned counsel to the appellants was wrong to have argued that the respondents did not oppose the application for extension of time because they indeed filed their counter-affidavit
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in opposition thereto.
Again, on the issue of technicality raised by the appellants’ counsel, the learned counsel for the respondents submitted, that contrary to the standpoint of the learned counsel to the appellants, application for extension of time are not granted as a matter of course. He added that rules of Court are meant to be obeyed and an exercise of discretion to grant extension of time must be based on some concrete materials placed before the Court concerned with the same. He referred to the cases of Williams v. Hope Rising Voluntary Funds Society (1982) 1 S.C.; Olatubosun v. Texaco Nig. Plc (2012) 14 NWLR (Pt. 1319) 200, and M.C. Investments Ltd. v. Core Investments and Capital Markets Ltd. (2012) 12 NWLR (Pt. 1313) 1. Furthermore, that the learned trial judge properly considered the application brought by the appellants together with the affidavits and exhibits which accompanied it; and the respondents’ application. Thereafter, the learned trial judge found that the appellants failed to place sufficient material facts in order to make them entitled to the favourable exercise of the discretion of the said lower Court. And, also found that
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the appellants did not equally have good defence to the suit, since various Courts had previously and serially too, adjudicated on the same matter. Thus, the learned trial judge was of the opinion that justice would be done by saving time, avoiding undue delay and avoiding full blown trial with the usual expenses, frustration and theatrics. Therefore, he submitted that this is surely not a case of undue technicalities and urged this Court to so hold.
On the issue of fair hearing, the learned counsel for the respondents after succinctly giving the meaning of fair hearing and what it entails and relying on various judicial authorities; he submitted that “right to fair hearing is a two edged sword-to the plaintiff to be heard promptly and for the defendant to avail himself of his constitutional rights extended to it by the Court to present its side of the case. To delay hearing of a case deliberately is an abuse of Court process which in turn defeats justice.” He relied on the case of Newswatch Communication Ltd. v. Alhaji Atta (2005) All FWLR (Pt. 318) 580 @ 603. He argued that the appellants despite the more than adequate time provided by the rules,
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inordinately delayed and/or neglected to file their statement of defence and other relevant/requisite processes. He continued that the appellants being aware that their time to file the appropriate processes have since elapsed, waited for a day before the respondents’ motion was to be heard before filing their motion for extension of time. He pointed out that even the said motion was not accompanied by the appellants’ defence. Learned counsel further maintained that rules of Court were made to assist the court in doing justice to the parties.
In the appellants’ reply brief the point was made to the effect that where strict compliance with the rules will occasion injustice, the Court is enjoined not to interpret it to cause injustice by shutting the party in default from presenting his case. He relied on the case of Olaniyan v. Oyewole (2008) All FWLR (Pt. 399) 503 @ 525. Thus, he urged this Court to hold that strict application of Order 9 of the High Court (Civil Procedure) Rules of Enugu State, 2006 has occasioned a grave injustice to the Appellants.
Let me commence by stating that, it is pertinent to observe as the respondents’ counsel has
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rightly done, that the subject matter of this appeal is based only on the judgment delivered in favour of the respondents predicated on the claim in the substantive suit. The ruling of the lower Court refusing the appellants’ motion for extension of time filed on 13th day of June, 2012 did not form part of this appeal; therefore, I refuse all invitations from the appellants’ counsel to deliberate on the ruling and/or the ratio upon which the ruling was decided. Therefore, all arguments in that respect are hereby discountenanced by me, as such arguments goes to no issue. It is trite law that issues and arguments formulated and to be deliberated upon must find their roots in the grounds of appeal. Failure in which the said issues and legal arguments thereon would be discountenanced, as they go to no issue, and incompetent to be deliberated upon. See Kala v. Potiskum (1998) 3 NWLR (Pt. 540) 1.
The above having been said, the next question that needs to be asked and answered is whether the appellants were duly accorded fair hearing by the lower Court? It is trite and in fact constitutionally guaranteed for a Court of law to adequately give all the parties
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to case before it, equal and adequate opportunities to be heard. Where a party has been wrongly denied or deprived of the opportunity or was not accorded adequate and sufficient opportunity to be heard, the right to fair hearing and fair trial as guaranteed by Section 36 of the Constitution of Federal Republic of Nigeria 1999 (as amended), would be found to have been infringed and the case in which the said party’s right was wrongly and/or unlawfully taken away would be held to be null and void. However, there is an equal need to balance a party’s right to fair hearing with the opposing party’s right to fair hearing without and unnecessary delay. Where a Court proceedings is unduly delayed, justice would be adjudged to have been denied to such a party, even if at the end of the day judgment was given in his favour. See Kasunmu & Ors. v. Adepegba (2010) LPELR- 4393.
Also, it is the duty of a party who alleged that his right of fair hearing was breached, to prove before the Court how the said right was taken away from him in line with the facts of the case. This position has been reiterated by this Court, per Ignatius Igwe Agube, JCA., in the case of
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Iyabo Isiaka & Anor. v. Alhaji Saka Opobiyi (2012) LPELR-8540 in his concurring judgment wherein he enunciated as follows:
“It is also trite from the authority above cited and other authorities (a few which are here under mentioned), that the burden is on the party alleging breach of fair hearing (as in this case) to prove the breach and he must do so in the light of the facts of the case. See Maiko v. Itodo (2007) 7 NWLR (Pt. 1034) 443; Usani v. Oke (2004) 7 NWLR (Pt. 871) 116, (2005) ALL FWLR (Pt. 244) 960; Fagbule v. Rodrigues (2002) 7 NWLR (Pt. 762) 188; Adeniran v. NEPA (2002) 14 NWLR (Pt. 786) 30 Bamigboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 and Awoniyi v. Registered Trustees the Rosicrucian Order (AMORC) (2000) FWLR (Pt. 25) 1592. See also per Alfa Belgore JSC (as he then was) who described the concept of fair hearing in Magit v. University of Agric. Makurdi (2006) 133 LRCN 46 at 51; as “not being a cut and dry principle which parties can in the abstract always apply to their comfort and conveniences. It is a principle which is based on facts of the case before the Court. Only the facts of the case can influence and
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determine the application or inapplicability of the principle. The principle of fair hearing is helpless or completely dead outside the facts of the case.” I shall lend my voice to the profound pronouncements of my learned brother by stating that it is the duty of the Court to create the necessary conducive atmosphere for fair hearing although the Court is not duty bound to compel the party to take advantage of the atmosphere so created. Thus, as was succinctly posited by Fabiyi, JSC, in his lead judgment in S & D Construction Co. Ltd. v. Ayoku (supra) at page 16 paragraph E, relying on the cases of Omo v. Judicial Service Commission Delta State (2000) FWLR (Pt. 20) 676, (2000) 12 NWLR (Pt. 682) 444 and Okoye v. Nigeria Construction Furniture Co. Ltd (1999) 6 NWLR (Pt. 1999) 501 at 541, and re-echoing the dictum of Tobi, JSC, in Newswatch Communications Ltd. v. Attah (2006) 1 ALL NLR (Pt. 1) 211 at 225; Oguntayo v. Adelaya (2009) 15 NWLR (Pt. 1163) 150 at 186 paras. E-G: “A party who had the opportunity of being heard but failed to utilize same … cannot complain of breach of fair hearing.”
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In the instant case, the appellants were duly served with
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the appropriate and or requisite originating processes, but, failed and/or neglected to file their defence at the appropriate time provided by the rules of the Court though, after several days of default has passed they brought motion for extension of time to file the said statement of defence and other accompanying processes out of time but the said application was refused by the learned trial Court, holding that the respondents fail to adduce sufficient and cogent reasons for the delay to file their processes at the appropriate time. It is also important to observe, that an earlier application was brought by the respondents wherein they sought for the same prayer, but it was equally refused by the learned trial judge for being incompetent. Also, it is pertinent to observe, that the ruling of the lower Court which refused the said application has not been challenged or appealed against, and did not equally form part of the subject matter of dispute before this Court. Thus, the said ruling is deemed admitted by the appellants. The implication of this is that the appellants have no processes on record to defend the suit against them, due to their own fault
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and/or negligence. Thus, they could not be heard to complain that they were not afforded the opportunity to defend the respondents’ suit or that they were deprived of their right to fair hearing. It is hereby my firm viewpoint that based on the affidavit evidence on record, the appellants were duly afforded their right to fair hearing but they failed to take advantages of the same. This issue is hereby resolved against the appellants and in favour of the respondents.
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ISSUE 2
The learned counsel to the appellants submitted that Courts and the parties are bound by the pleadings and they are not permitted to go outside the case submitted before the lower Court for adjudication and thereby proceed to formulate any other issue and based its decision on such issues formulated by the Court. He contended that the lower Court (with due respect) erred when it relied on the judgment in suit No. E/54/67 which was neither pleaded by the respondents nor incorporated in the respondents’ witness statement on oath. The learned counsel further contended, that if the respondents had wanted to make the existence of the said judgment a relevant fact by virtue of
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Section 59 of the Evidence Act, 2011 they should have pleaded its existence and go further to give evidence of its existence. The learned counsel thereby maintained that the learned trial judge decided suo motu to elevate the existence of the said judgment to a relevant fact when the appellants did not do so in their pleadings and in evidence. The learned counsel strenuously contended that the said judgment was prejudicial to the interest of the appellants as it sought to establish estoppel against the appellants. He then argued, that if the learned trial judge had not used the said judgment suo motu, the appellants “would have been in a position to show that they are not privies to the defendants to the said suit no. E/54/67, and that they would have also shown that the said judgment was a default judgment and was therefore not decided on the merits as it was entered in default to pleadings and in the absence of the Defendants.” He thereby submitted that the use of the said judgment which was neither pleaded nor given in evidence has occasioned a miscarriage of justice on the appellants. He thereby urged this Court to resolve this issue in favour of
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the appellants, and consequently allow this appeal.
The learned counsel to the respondents in reply, contended that the said judgment which the appellants complained about was “copiously” pleaded and relied upon in their pleadings. He referred us to Paragraphs 3, 4, 14 and 16 of the respondents’ statement of claim, the respondents witness statement on oath and the certified true copy attached thereto. The learned respondents’ counsel further stated, that the appellants’ equally admitted its existence in Paragraph 11 of their statement of defence. It was thus submitted, that the appellants having admitted the existence of the said judgment, the respondents need not prove the same any more. He relied on Section 75 of the Evidence Act, 2011. The learned counsel maintained that the lower Court has the power to look at the accompanying statement of evidence in reaching its decision. Thus, he submitted that the reference made by the learned trial judge to N/54/67 and the utilization of the said judgment in arriving at its judgment did not occasion any miscarriage of justice but was proper as it was based inter alia on the admission of the appellants whose
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root of title were as stated in Paragraph 3 of their statement of defence to have been a grant to their grandfather like other Ihe/Owerre citizens for their participation in prosecuting a spiritual war. He thereby urged this Court to resolve this issue in favour of the respondents.
The learned counsel to the appellants in the appellants’ reply brief contended that the learned trial judge did not make reference to Suit No. N/54/67 in his judgment, but suit No. E/54/67 which was neither pleaded nor given in evidence by the respondents. Thus, he submitted that the learned trial judge has no power to use a document though relevant and in his possession, but was neither pleaded by the parties nor given in evidence. He relied on the case of Duriminya v. C.O.P. (1962) NNLR 70 @ 73 and Olawepo v. Saraki (2009) All FWLR (Pt. 498) 256 @ 304.
I have carefully considered the arguments and submissions in support of their respective positions with respect to this issue, and found that the major dispute between the parties lies in the difference between judgments in Suit No. N/54 /67 and E/54/67.
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It is elementary principle of law of pleadings that
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facts must be concisely, precisely, and accurately pleaded. Pleadings should not give any room for doubt or speculation as to its real content. Statement of Claim must clearly state the facts to be relied upon at the hearing and not embark on any rigmarole. Where facts in statement of claim are not precisely stated, a defendant will be in some difficulty to respond directly or precisely to the averments. So too the statement of defence as it relates to a reply. See Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) 81. The question that now needs to be asked and answered is whether Suit No. E/54/67 was pleaded? The respondents contended that they pleaded the said suit in Paragraphs 3, 4, and 16, but stated that the suit was specifically pleaded in paragraph 4 of the said statement of claim with particulars. For the purpose of clarity, I will undertake to reproduce the said paragraph below:
“4. The defendants who belong to Umu Ugwu Arua are sued for themselves and representing their said family. They belong to Amaeze Owerre village which is one of the villages that make up Ihe/Owerre Community, the defendants in suit No. N/54/67 already mentioned.”
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From
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the above reproduced paragraph it could be seen that the judgment in suit No. E/54/67 was not pleaded, but only that of suit No. N/54/67. However, I have carefully examined the above reproduced paragraph of the statement of claim and the judgment being referred to and found that the suit No. N/54/67 referred by the respondents and suit No. E/54/67 are one and the same. It appears to me that the respondents mistakenly swapped “E” for “N” in their pleadings. This type of error is common in human activities especially in drafting of pleadings. It is also my thinking that the said mistake is not fatal or material and cannot be held to have misled or confused the appellants thus, leading to miscarriage of justice, especially when it is visualized on the basis of the fact that the said judgment was attached as exhibit which accompanied the statement of claim which has been previously front-loaded by the appellants. In addition, the fact that the respondents clearly pleaded the said suit with explanation and/or particulars has completely removed any doubt or confusion that could have arisen from the said mistake. In this circumstance, it is thus my firm standpoint
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that the said suit was pleaded by the respondents and the lower Court was right to have relied on the same in the course of reaching its decision. In this circumstance, this issue is also resolved in favour of the respondents and against the appellants.
The purpose of an appeal is to find out whether or not, on the facts, evidence and the applicable laws, the trial Court arrived at the right decision. It has been held in plethora of cases that an appellate Court would not disturb the judgment of the trial Court if it is supported by evidence, just because it would have come to a different conclusion on the same set of facts. See Nzekwe v. Nzekwe (1989) 3 S. C. (Pt. II) 87; Kamalu v. Umunna (1997) 5 NWLR (Pt. 505) 321 @ 337; Simon Kajo v. Benue Cement Company Plc. (2013) LPELR-20788 and a host of others.
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In the premise and with the resolution of both issues raised and considered in this appeal in favour of the respondents, the appeal is bereft and/or devoid of merits. It is accordingly dismissed. The decision of the lower Court in Suit No. N/14/2012 delivered on the 23rd day of July, 2012 is thereby affirmed by me. Costs in the sum of
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N100,000.00 is awarded in favour of the respondents.
Other Citations: (2016)LCN/8681(CA)
