Wardrop Osita Obiesie V. Rowland Nweke Obiesie (2007)
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JIMI OLUKAYODE BADA, J.C.A.
This is an appeal against the Judgment of the High Court of Anambra State holden at Otuocha, delivered on the 14th day of March, 2005 in Appeal NO.OT/6A/2003: Wardrop Osita Obiesie Vs. Rowland Nweke Obiesie.
The court below in its judgment held that the appellant was denied the opportunity of defending the case against him and of prosecuting his counter-claim. And that he was denied fair hearing which occasioned a miscarriage of Justice. It then set aside the Judgment of the learned Magistrate and ordered that the case be remitted back to the Chief Magistrate Court, Nteje to be heard and determined by another Magistrate.
Dissatisfied with the decision to set aside the said Judgment, the appellant now appealed to this Court.
The appellant formulated one issue for determination as follows:-
“Was the Court below right in holding that the trial court denied the respondent the opportunity of defending the case and of prosecuting his counter claim.”
The Respondent on the other hand also formulated one issue for determination as follows:-
“Was the court below not right in holding that the Respondent was denied the opportunity of defending the case against him and of prosecuting his counter claim and in the circumstance he was denied fair hearing, which occasioned a miscarriage of justice.”
At the hearing, learned counsel for both parties adopted and relied on their respective briefs of argument.
In determining this appeal, I think it will suffice to consider the issue formulated in the respondent’s brief of argument since the issue formulated in the appellant’s brief of argument is more or less the same as that of the respondent.
The learned counsel for the appellant submitted that the learned judge at the court below was wrong in holding that the respondent was denied the opportunity of defending the case against him and of prosecuting his Counter-Claim.
He referred to pages 12- 13 of the record to show how the trial Magistrate warned on the delay tactics of the respondent and his counsel.
References were also made to the several applications for adjournment by the respondent and learned counsel for the appellant submitted that the only duty imposed on the court by the provision of Section 36 of the 1999 Constitution is to give every party before it an equal opportunity to be heard and present its case. When a party has been afforded the required opportunity to be heard by the court, it has discharged the duty imposed on it by the Constitution. He submitted further that the general principle of law is that a person who was not heard but was given ample opportunity of being heard which he failed to make use of, cannot thereafter complain of a lack of fair hearing. Fair hearing is not a one-way affair, it affects both parties. He referred to:- Darma Vs. Oceanic Bank International Nig. Ltd. (2005) 4 NWLR Part 915 Page 391 at 409.
Learned counsel also relied on the cases of – Ajidahun Vs. Ajidahun (2000) 4 NWLR Part 654 at Page 605 particularly at 614 where the Court of Appeal per Galadima J.C.A. held that
“the essence of the concept of fair hearing is that a party ought not be deprived of what he is entitled in law. However, our civil jurisprudence does not permit indolent or unwilling party to frustrate or depress a party who has genuine complaint:’
And M.M.S. Ltd Vs. Oteju (2005) 14 NWLR Part 945 Page 517 at 537 where Kalgo J.S.C. stated thus:-
“It is well established and generally accepted as true that justice delayed is justice denied and that no party to a case is entitled to hold the court to ransom at his or her own whims and caprices …………
……………………………. ”
The learned counsel for the appellant stated that the respondent kept on filing frivolous applications all in a bid to delay and frustrate the prosecution of the case. And notwithstanding the frivolous applications, the case suffered adjournments on the following dates, 14/3/2002,22/4/2002, 13/5/2002 and 27/5/2002 all at the instance of the respondent and his counsel.
He went further in his submissions that the facts and antecedents in this case earlier referred to, justified the trial court taking evidence of P.W.3 (the bailiff)’ closing the appellant’s case and taking address of the appellant’s counsel notwithstanding the letter of adjournment written by the respondent’s counsel.
The learned counsel for the respondent referred to the claim and counter-claim of the parties. He stated that he partook in all the proceedings of the court and he cross-examined all the witnesses for the appellant. On 27/5/2002, he stated that he was sick and wrote a letter to the court excusing his absence on ground off ill-health and that the trial court turned down his letter.
He submitted that the conduct of proceedings of 27/5/2002 by the trial court by taking evidence of P.W.3 ordering immediate address by the appellant’s counsel and adjourning for judgment without giving the respondent opportunity to put up his defence or prosecute his counter claim is a manifest denial of fair hearing to the Respondent which greatly occasioned a miscarriage of justice.
He referred to the following cases:-
– Ndukauba Vs. Kolomo (2005) 12 WRN Page 32.
– Oio Vs. Anibire (2004) 51 WRN Page 1
– Long-John Vs. Blak1U1998) 5 SCNJ Page 68.
– The State Vs. Aiie (2000) 3 NSCQR Page 53
– Idakwo Vs. Eiiga (2005) 48 WRN Page 19.
– Aisthon Vs. Saraki (2005) 10 WRN Page 75.
Learned counsel for the respondent finally urged that the appeal be dismissed.
This is a simple case with chequered history. The suit was filed by the Plaintiff now Appellant against the Defendant now Respondent on 27th day of April 1997 at the Magistrate court, Nteje claiming for possession of two rooms with appurtenances in the premises of the appellant situate at Umenyiorah Avenue, Ifite, Ogbunike.
The Respondent after being served with the claim on 5/5/97 counter-claimed by claiming possession of four rooms with appurtenances in the premises of the respondent situate at Umenyiorah Avenue, Ifite, Ogbunike, an order of perpetual injunction restraining the appellant from laying further claims over the premises of the respondent occupied by them at Ifite, Ogbunike, and an order of perpetual injunction restraining the appellant from further harassing or disturbing the defendant in the said premises.
It could be seen from the record of appeal that this case suffered many adjournments at the instance of counsel for the respondent either due to one application or the other or due to ill health.
The case was not concluded at the Magistrate court until 17th day of June 2002, which is after about 5 years. That is very unfortunate.
It is clear from the record that the learned counsel for the respondent used all sorts of delay tactics in frustrating the trial court. This attitude of the learned counsel for the respondent at the Magistrate’s court is highly condemnable. A party cannot stay on the altar of fair hearing or natural justice crying foul when he had ample opportunities to put in his defence.
It is trite that frivolous applications tend to make the wheel of justice move at a snail speed and that does not make the progress of law dynamic in a growing society like ours.
In Okon Udo Akpa Vs. The State (1991) 5 SCNJ Page 1 at 13 it was held among others that:-
“No encouragement should be given to counsel who are not ready to prosecute their cases. Unnecessary and prolonged adjournments leads to frustration on the part of litigants and sometimes they may lead to a miscarriage of justice.”
Also in Zekan Vs. Alhassan (2003) FWLR Part 177 Page 777 at 793-794, Muntaka – Commassie J.C.A. had this to say:-
“The only thing the court is required by law to do was to give the respondent opportunity to defend the case. This opportunity should also not be abused. No court worth its salt would allow the proceeding before it to be unduly abused under the guise of fair hearing. A situation where a party or counsel employs the issue of Fair hearing to irritate or annoy the other party or the court, the court is duty bound to protect its process and integrity. Such act of annoyance or irritation amounts to or tantamount to abuse of courts process and court would definitely take step to prevent its process from being abused.”
A hearing can be fair when all the parties to the dispute before the court are given a hearing.
In T.E. Olumesan Vs. Ayodele Ogundepo (1996) 2 NWLR Part 433 Page 628 (1996) 2 SCNJ Page 172 at 184 the Supreme Court stated that: –
“It is a basic principle of law that where a person’s legal rights or obligations are called into question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regard to such rights or obligations. In other words, it is an indispensable requirement of justice that an adjudicating authority to be fair and just shall hear both sides, giving them ample opportunity to present their cases.”
In the instant appeal, even though the attitude of the learned counsel for the respondent in the conduct of the case of his client at the Magistrate court is reprehensible, it is my view that the learned trial Magistrate should have exercised more patience and try to accommodate the said counsel in order not to fall foul of the hallowed principle of fair hearing. This is because breach of the rule of fair hearing is always fatal to the Judgment of the court. The denial of fair hearing is a breach of one of the rules of natural justice and it will render the hearing liable to be set aside or declared invalid by the court.
The learned trial Magistrate in this case failed to give the Respondent the opportunity to put up his defence or prosecute his counter claim after the appellant had closed his case. And this in my view occasioned a miscarriage of justice which simply means a failure of justice. See:- Oja Vs. Anibire (supra). (See the record of appeal of 27/5/2002 on Pages 37 and 38.
It is very clear that the principle of fair hearing is fundamental to all court procedure and proceedings and like jurisdiction the absence of it vitiates proceedings however well conducted.
And where the proceedings of a tribunal or court is vitiated by unfairness, it is the duty of the court reviewing such a decision to set it aside. See Idakwa Vs. Ejiga (supra).On the whole after a careful examination of the sole issue for determination in this appeal, it is my view that the court below was right when it held that the Respondent was denied the opportunity of defending the case against him and of prosecuting his counter-claim.
Therefore I uphold the judgment of the lower court that the case be remitted back to the Chief Magistrate’s Court, Nteje, to be heard and determined by another Magistrate.
Consequently, it is my view that this appeal lacks merit, it fails and it is accordingly dismissed. In view of the circumstances surrounding the case, I will not make any order as to costs.
Other Citations: (2007)LCN/2330(CA)
