CORAM

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CHIDI NWAOMA UWA

JAMILU YAMMAMA TUKUR

MOHAMMED LAWAL ABUBAKAR

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PARTIES

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HERNY SHIGAWA

APPELLANTS 

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YAZEN MAGO YALI

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, COURT, FAIR HEARING, LAW OF EVIDENCE, PRACTICE AND PROCEDURE, WORDS AND PHRASES

 

 

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SUMMARY OF FACTS

The Respondent commenced this action in respect of a landed property situated at Nyamu Salah, Sintali “B” Ward, Jalingo before the High Court of Taraba State, sitting at Jalingo, wherein via a Writ of Summons and Statement of Claim he sought against the Appellant, a declaration of title; injunctive reliefs, general and special damages.

The Appellant in reaction filed his Statement of Defence which he later amended by leave of Court. The Appellant sought for an adjournment for an out of court settlement but before the next date, the Appellant filed another Motion on Notice seeking to again amend the Appellant’s statement of Defence. On the next adjourned date, the Appellant informed the trial Court that settlement has broken down and that he had a pending Motion filed which was yet to be transmitted to the trial Court and sought for an adjournment. The trial Court refused the application for adjournment and suo motu closed the Appellant’s case without taking the Defence last witness whose witness statement on oath was before it and without hearing the Motion on Notice. Parties filed, exchanged, and adopted their written addresses and judgment was reserved to a later date to be communicated to the Parties. The Honourable Acting Chief Judge of Taraba State, issued a Legal Notice No. 3 of 2019 for the annual vacation of the High Court of Justice which commenced on 5th August, 2019 to 29th September, 2019 (a period of 6 weeks). The said Notice was signed and dated 10th July, 2019 and Hon. Justice Emmanuel A. Garba was named as the vacation Judge during the period. Notwithstanding the legal notice issued by the Hon. C.J. aforesaid, the trial Judge suo motu summoned the Parties during the vacation and delivered the final judgment on 25th September 2019, without first seeking the consent of the Parties to sit and conduct proceedings during vacation and 3 weeks before the expiration of the constitutional period for delivery of judgment upon conclusion of trial. In a considered judgment, the learned trial Judge granted Respondent’s reliefs for declaration of title and injunctive relief as well. He further awarded the Respondent special and general damages and cost of prosecution respectively. The Appellant, being dissatisfied with the said judgment of the trial Court, filed his Notice of Appeal, contending that the failure of the learned trial Judge to hear the Motion filed by the Appellant, is against the provision of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), on fair hearing, and particularly the natural justice rule of Audi Alteram Partem and urged this Honourable Court to hold and allow this Appeal.

 

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HELD

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Appeal Dismissed

 

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ISSUES

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Whether the Appellant’s right to fair hearing was not violated by the trial Court when it suo motu closed the Appellant’s case without considering his Application on notice for amendment of his statement of defence pending before the Court.

Whether the judgment of the trial Court delivered on 25th September, 2019 within the vacation period was not a nullity for want of Jurisdiction.

Whether having regard to the state of the pleadings and the totality of the evidence adduced by the parties, the findings, holdings and/or judgment of the trial Court was right when the Respondent’s declaratory and injunctive reliefs were granted and if same did not occasion a miscarriage of justice.

 

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RATIONES DECIDENDI

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FAIR HEARING – WHAT IS FAIR HEARING?

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“Now, the question is what is fair hearing? In the case of Ariori & Ors.V.Elemo &Ors. (1983) LPELR 552 (SC) Obaseki JSC:

“Fair hearing therefore, must mean a trial  conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause”.

Tobi JSC (of Blessed Memory) in INEC V Musa (2003) LPELR 24927 (SC) said:

“Fair hearing in essence, means giving equal opportunity to the parties to be heard in the litigation before the Court. Where parties are given opportunity to be heard, they cannot complain of breach of the fair hearing principles”.

Also fair hearing in a Phrase defined thus as:

“A judicial or administrative hearing conducted in accordance with due process”

(The Black Law Dictionary Ninth Edition at Pages 789).

Nnajiofor & Ors v. Ukonu & Ors (1985) LPELR-2056(SC) (Pp. 53-54 paras. A), Mohammed V Olawunmi (1990) 2 NWLR (Pt. 133) 458. Where therefore there is a complaint of lack of fair hearing as in the appeal at hand, the only task to be conducted is to examine the impression of a reasonable person who was present at the trial, whether from his observation, justice has been done.

See also Mohammed V Kano Native Authority (1968) LPELR 25487, Darma V Eco Bank (2017) LPELR 41663. It therefore suffices to say that by virtue of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, which guarantees fair hearing within a reasonable time, and gives all parties to the case the opportunity of being heard and present their case is fair hearing. See African Peoples Party V Mr Willie Obiano & Ors. (2018) LPELR 44646; Yusuf V State (2011) 6-7 SC (Pt. V) 180; Segun Ogunsanya V The State (2011) LPELR234 (SC); Egbuchu v. Continental Merchant Bank Plc & Ors (2016) LPELR-40053 (SC)  (Pp. 10-11 paras. C-C); Obasi  V. Onwuka (1987) NWLR (PT. 61) 364, LPELR – 2152,Nalsa & Team Associates V. NNPC (1991) 8 NWLR (PT.212) 652 AT 660, Otapo V. Sunmonu (1987) 2 NWLR (PT.58) 587 and Okoro V. Okoro (1998) 3 NWLR (PT.540) 65. -PER M. L. ABUBAKAR, J.C.A

 

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DELIVERY OF JUDGMENT – WHETHER DELIVERY OF JUDGMENT DURING VACATION IS A NULLITY

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“Now, Order 8 Rule 4(2) of the Taraba State high Court Civil procedure) Rules 2011 provides as follows:-

“There shall be an annual vacation of the Court to commence on such date in august and of such duration, not exceeding six weeks, as the Chief Judge may by notification in the Gazette appoint”.

Order 8 Rules 5(1) provides:-

“Notwithstanding the provision of Rule 4, any action may be heard during any of the periods mentioned in sub-Rule (2) where the action is urgent”.

From the above-mentioned Order, it is clear that the Appellant Counsel cited the orders out of context to prove that delivering judgment during vacation is a nullity.  I agree with the submissions of Counsel to the Respondent.  Moreover, the Appellant Counsel has not shown how the delivery of the judgment during vacation occasioned a miscarriage of justice to the Appellant.

The Appellant was represented by Counsel and did not object to the judgment being delivered before and during the delivery of the judgment appealed against.  To make matters worst, the Counsel did not apply to arrest the judgment when it was read.  On the day the judgment was delivered, the parties and their Counsel did not give evidence or participate in any way except listening to the trial Judge who delivered the said judgment.  So there is no denial of Fair hearing.

By the authority of the case of Anie & Ors. Vs. Uzorka & Ors (1993) LPELR-490the Supreme Court held that Court can deliver its judgment on a falling within the Christmas vacation. -PER M. L. ABUBAKAR, J.C.A

 

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CASES CITED

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Not Available

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STATUTES REFERRED TO

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Constitution of the Federal Republic of Nigeria, 1999 (as amended)

Evidence Act, 2011

Taraba State High Court (Civil Procedure) Rules 2011

 

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