Suit Number:CA/E/120/03 THURSDAY, 15TH MARCH, 2007
Judges:JAMES OGENYI OGEBE JCA (Presided) SOTONYE DENTON-WEST JCA JIMI OLUKAYODE BADA JCA (Read the Lead Judgment)
Counsel:Chief M. E. Eze - for the Appellant . Mr. Ben Osaka - for the Respondent .
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BADA JCA (Delivering the Lead Judgment): This is an appeal against the judgment of an Anambra State High Court delivered on 26/3/2002 in suit No. HID/372/98:- Chief Charles Azifuaku v. Cyril Abuguja .
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The plaintiff now respondent testified at the court below and called two witnesses and closed his case while the defendant now appellant opened
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his case and called two witnesses. The defendant and his remainingwitnesses were yet to testify when his counsel who was absent from court applied for
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adjournment, but the court on1st day of August,2000 refused the application by counsel for adjournment. The defendant was then directed by the court to conduct his case personally and he informed the court that the case file was with his counsel and that he could not conduct his case immediately without going through the pleadings.
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The court then adjourned for judgment.
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It is against this judgment that the defendant has appealed to this
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court.
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The appellant formulated six issues for determination as follows:-
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Whether there was fair hearing in the presence of bias and irregularity of procedure. Whether the judgment of the lower court could stand in view of the fact that it was neither based on evidence, pleadings or law. Whether an order of injunction not confined to specific acts can be held to be capable of enforcement. Whether the learned trial Judge was correct in awarding lump sum damages when the issue of damages was neither properly
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pleaded nor brought out in evidence. A
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Whether the entire judgment was not a nullity in view of the delivery or attempt to deliver. Whether the exclusion of the evidence of DW2 with respect to the fact that the defendant did not trespass into the plaintiff’s
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land occasioned a miscarriage of justice. B
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The respondent, on the other hand, also formulated five issues for
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determination as follows:-
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Whether the learned trial Judge breached the rules of fair hearingwhen he closed the case of the appellant and adjourned for judgment. Whether the learned trial Judge properly evaluated the C
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evidence of the parties and their witnesses.
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Whether in the circumstance of this case, the learned trial Judge was right in awarding damages for trespass against the appellant as well as in granting the order of injunction. Whether the judgment of court dated 4/8/2000 was a nullity. D Whether the pleadings of the appellant sufficiently covered the evidence given by DW2 which was expunged by the trial court in respect of the trespass committed on the respondent’s land by the appellant.
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At the hearing, learned counsel for both parties adopted and relied E
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on their respective amended briefs of argument.
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It must be mentioned that at the hearing of this appeal on the 21st day of February, 2007, the learned counsel for the parties made oral submissions in elaboration of the contents of their briefs. The attention of the court was drawn to the proceedings of 1/8/2000 at the lower court by
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counsel for the parties. I set out below the record of what transpired on F
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Tuesday, the 1st ofAugust, 2000 at pages 144 to 145 of the record. “ On Tuesday the 1st August, 2000
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HID/372/98
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Chief Charles Azifuaku ..... Plaintiff
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Cyril Abuguja ...... Defendant
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Parties in court.
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Obi Akpudo Esq., M.O. Ogboto, for the plaintiff.
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J.A.C. Onuoha, for the defendant wrote this morning for
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adjournment. H
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O. Akpudo: We oppose the application, it is a deliberate ploy
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to frustrate hearing of this matter by the court his reason is that he is ill. I oppose the application
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because on 27/2/2000when he alleged in his letter he was in hospital at Enugu receiving treatment for eye trouble, the counsel that day appeared before a Magistrates’Court at Aguata presided over by his worship, I. I. Udeze, Magistrate I in suit No. MAG/MISC4/99 and charge No. MAG 99 - C.O.P. v. Cyril Ifenia and conducted a
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witness that day. I have a certified true copy of the proceedings and I apply to tender it from the Bar.
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Court: Certified true copy admitted and marked exhibit
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Obi Akpudo: He is still makingsuch application.
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Court: Because of this submission by counsel, I shall refuse the application of counsel for adjournment and will call defendant to go on with his case.
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Defendant: I cannot go on with this case because my lawyer
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has all my documents.
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Obi Akpudo: I apply for the case to be closed and adjourn for judgment.
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Court: Case is adjourned to 4/8/2000 for judgment.
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Signed
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H. H. Nwofor (Judge)
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1/8/2000.”
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From the record of proceedings above, it can be seen that:-
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The defendant/appellant was not given opportunity to present his case.
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- The court shut out the defendant/appellant completelyby fixing
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the case for judgment.
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The parties were not given an opportunity to address the court. The learned counsel for the appellant submitted that the power of a court to grant adjournment must not onlybe exercisedwith regardto principles
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of law but also in accordance with the dictates of justice. He referred to
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Ilona v. Dei (1971) 1 All NLR 8 at 13.
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On the other hand, learned counsel for the respondent submitted that it is improper for the appellant to accuse the court of bias when his counsel deliberately refused to appear in court to proceed with the case. He went
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further that the appellant had the option of retaining another counsel but failed to do so. Also, that the incessant applications for adjournment were
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deliberately designed to frustrate the court. He also submitted that it is the law that an application for adjournment is not granted as a matter of course
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especially where the purpose is to delay the trial of the matter, and that A adjournment is at the discretion of the court. He referred to Oko Udo Akpan v. State (1991) 5 SCNJ 1 at 13 where it was held thus:-
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“No encouragement should be given to counsel who are not ready to prosecute their cases. Unnecessary and prolonged
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adjournments lead to frustration on the part of litigants and B
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sometimes they may lead to a miscarriage of justice.”
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And Donatus Ndu v. State (1990) 12 SCNJ 50 at 60 where it was held thus:-
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“A trial court in exercising its discretion as to whether to
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grant an adjournment always bears in mind that it is the duty
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of court to minimize costs of litigation and to see to it that C
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justice is not unnecessarily delayed. The court will refuse an application by either party for an adjournment of hearingif it is of the opinion that the application was made only for the purpose of delayingthe proceedings.”
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Learned counsel for the respondent also submitted that address of D
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counsel in certain cases are mere formality and does not diminish or add to the strength or weakness in a party’s case. He relied on Obodo v. Olomu (1987) 6 SC 154.
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He also submitted that where the facts of a case are straightforward,
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the trial Judge may dispense with address by parties. He referred to Nigeria E
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Construction Co. Limited v. Okugbeni (1987) 4 NWLR (Pt. 67) 787
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particularly at 792.
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A perusal of the record of proceedings in this case showed that the parties had not concluded their cases before it was adjourned for judgment despite the application for adjournment by the defendant.
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In Anisiubu v. Emodi (1975) 2 SC 9 at 13, the Supreme Court held F
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that:-
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“While we think that learned counselfor the appellant deserved the blame laid upon him by the learned trialJudge forhis absence of February 1st, 1974, we are of the opinion that he should not
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have refused the plaintiffs’ plea for an adjournment till she G
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was able on a later occasion to get her counsel to court or brief another one.”
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In my own view, it is a serious breach of the principle of fair hearing
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for the learned trial Judge to adjourn for judgment when parties before him
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were yet to conclude their cases. See section 36 of the 1999 Constitution H
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of the Federal Republic of Nigeria .
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The principle of fair hearingis the bedrock of our judicial system and a party cannot be choked or strangulated with what he has to say or do
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concerning his case. No matter how stupid an opinion seems, it should be heard. The court is not bound by a party’s opinion, but the court is bound to hear each party.
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Even when a partyintends tochange counsel, he has the constitutional backing to do so. See section 36(6)(c) of the 1999 Constitution of the
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Federal Republic of Nigeria .
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It is also clear from the record of proceedings in this appeal that the
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defendant was not given the opportunity to conduct his case and testify and the parties in the case were also denied the opportunity of final addresses in the lower court before judgment was delivered.
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Section 294(1) of the 1999 Constitution of the Federal Republic
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of Nigeria avails parties to a case the right of final addresses. The said
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section reads:-
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“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
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parties to the cause or matter determined with duly
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authenticated copies of the decision within seven days of the delivery thereof.”
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In Obodo v. Olomu (1987) 3 NWLR (Pt. 59) 111 at 123 to 124, Obaseki JSC opined as follows:-
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“The hearing of addresses by every court established by the Constitution of the Federal Republic of Nigeria is recognized
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by the Constitution. It is to be given before judgment is delivered. See ...
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Its beneficial effect and impact on the mind of the Judge
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is enormous but unquantifiable. The value is immense and its
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assistance tothe Judge in arrivingat a just and proper decision,
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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.”
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In the instant appeal, the failure of the learned trial Judge; to allow the defendant to testify and conclude the conduct of his case, to allow parties in the case deliver their final addresses before adjourningfor judgment, was a serious breach of the principle of fair hearing as enshrined in the 1999 Constitution of the Federal Republic of Nigeria.
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Consequently, it is my view that the judgment delivered on 26/3/2002 is a nullity and must be set aside.
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That being so, I need not go into the other issues formulated by the A
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parties to conclude this judgment.
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In the result, this appeal is allowed and judgment of the trial court delivered on 26/3/2002 is hereby set aside. The justice of this case demands that it should be remitted tothe Chief Judge ofAnambra State for assignment
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to another Judge for retrial de novo , and it is so ordered. B
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The appellant is entitled to costs which is fixed at N7,500.00 (seven
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thousand, five hundred naira) against the respondent.
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OGEBE JCA: I read in advance the lead judgment of my learned brother, Bada JCA, just delivered and I agree with his reasoning and conclusion. C
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The learned trial Judge rushed to give judgment without affording the appellant the opportunity to conclude his case. That judgment is a nullity and I so declare. I allow the appeal and endorse the consequential orders made in the lead judgment includingthe order of costs.
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DENTON-WEST JCA: The judgment that has been delivered by my learned brother, Jimi Olukayode Bada JCA, was read by me before today. Bada JCA, had in my view, properly dealt with the salient issues in the
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appeal to my satisfaction and so I also hold that it may not be necessary to E
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dwell on the other issues formulated by either party in order to find that the
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appeal is not lackingin merit.
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I, accordingly, allow the appeal in terms made in the lead judgment.
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Appeal allowed;
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Case remitted to Chief Judge, Anambra State for re-assignment to another Judge for retrial de novo
