CORAM

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PARTIES

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CLIFFORD EYIDE

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DEACON RICHARD MOMOH

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AREA(S) OF LAW

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Not Available

 

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SUMMARY OF FACTS

By a Writ of Summons and amended Statement of Claim, the Respondent instituted an action against the Appellant and two other persons, one of whose name was later struck out following his death before the High Court of Edo State, in respect to a piece of land covering an area of 1650.805 square meters and 1.676 hectares at Ward A, Ogbaneki, Benin City, wherein he sought for a declaration of title to land; damages for trespass; and an Order of perpetual injunction. At the end trial, the lower gave its judgment wherein the claims of the Respondent were granted against the Appellant. Aggrieved by this judgment, the Appellant had appealed against same to the Court of Appeal, Benin. The Respondent filed a Notice of Preliminary Objection. The fact of the case is that the Appellant who was the 1st Defendant filed a Joint Statement of Defense with the 2nd Defendant at the lower Court. The 2nd Defendant had written to the Hon Chief Judge of Edo State praying for the reassignment of the Respondent’s Suit to another Judge, on the ground that the Respondent was first Cousin to the presiding Judge; however, the application was refused by the Hon Chief Judge vide his letter dated 18/8/2010. The Court below then continued with the hearing of the Respondent’s Suit, while the 2nd Defendant continued in his protests. However, though the Appellant entered appearance and filed a joint Statement of Defense, he never put up his defense as he chose rather to stay away from the proceedings following the denial of an application for transfer of the suit by the 2nd Defendant which was refused by the Hon Chief Judge of Edo State. The Respondent called two witnesses in the absence of the Appellant and closed his case, and address the Court below. At the conclusion of the trial, the Court below adjourned the matter for judgment. However, the judgment was subsequently delivered by the lower Court, hence this appeal.

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HELD

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Appeal Allowed

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ISSUES

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Whether the Court below was right when it entered judgment in favor of the Respondent without affording the Appellant an opportunity to be heard? Whether the Court below was right when it assumed jurisdiction to continue with the trial, conclude same in favor of the Respondent when the condition precedent to assumption of jurisdiction in the circumstances of the case had not been met? Whether from the totality of the evidence adduced by the Respondent, the Court below was right when it held that the Respondent was the rightful owner of the land in dispute?

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RATIONES DECIDENDI

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GROUND OF APPEAL – FORM OF A GROUND OF APPEAL

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“I have looked more critically at ground 5 in the light of the complaint that it has no particulars, and I thought it is important to point it out at one here and now that in law a ground of appeal need not carry separate and distinct particulars of error set out outside the ground itself. All that is required in law is that a ground of appeal may either set out distinctly the particulars of error alleged or it may incorporate and make such particulars of error as part and parcel of the ground of appeal. Once this required threshold is met, such a ground of appeal is competent. I find Ground 5 to have met this threshold and it is therefore, competent in law. The preliminary objection to its competent lacks merit. See Abubakar V. Waziri (2008) 14 NWLR (Pt. 1108) 507 @ p. 532”. –

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FILING OF AN APPEAL – WHAT DETERMINE THE FILING OF AN APPEAL?

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“This Court has over the years in several of our judgment reiterated the need for care and diligence by counsel both in the preparation and presentation of the cases of their clients before the Court. Agreed, that it is the law, now well accepted, that a litigant should not be punished for the sins of his counsel, yet counsel have been enjoined to exercise care and diligence in handling the cases of their clients. I can see that the Notice of Appeal filed on 15/4/2011 is undated and generally, or should I say ordinarily, in law an undated document is a worthless document. However, in a Notice of Appeal, what determine the filing of an appeal is not the date of the preparation of the notice of appeal but the date on which it was filed at the Registry of the Court below as prescribed by law. It is purely on this basis that I would, and do hereby, discountenance the preliminary objection challenging the competence of Notice of Appeal on the ground that it is undated since it was duly filed on 15/4/2011 before the Registry of the Court below as required by law. See Order 6 Rule 10 of the Court of Appeal Rules 2016. See also Ayoola V. Yamaha (2005) 7 NWLR (Pt. 923) 122 @ pp. 135-136”. –

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NOTICE OF APPEAL – EFFECT OF WRONG HEADING OF A NOTICE OF APPEAL BUT FILED AT THE APPROPRIATE REGISTRY OF THE COURT

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“My lords, I now come to an issue which I had before now thought had been well settled in our law and should not rear its ugly head ever again in our legal jurisprudence, the issue of wrongly headed Notice of Appeal. This issue has long since 1981 been laid to rest in our law by the apex Court. The law is that mere wrong heading of a Notice of Appeal without more, particularly where filed at the appropriated Registry of the Court below, cannot by itself alone render an otherwise valid Notice of Appeal invalid. That is the law! I therefore, find this ground of the preliminary objection as not only lacking in merit but vexatious as well and it is hereby, without much ado, overruled. See Surakatu V. Nigeria Housing Development Society Ltd. & Anor(1981) 4 SC 26.”

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TECHNICALITY – ATTITUDE OF COURTS TO TECHNICALITY

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“In today’s jurisprudence of ‘substantial justice’ the issue of ‘mere technicality’ no longer holds sway. Indeed, long gone are the heydays of technicality ridding – roughshod over substantial justice in our Courts. Nowadays, substantial justice is king! Technicality, for just its sake devoid of real justice must bow to substantial justice! In the circumstances therefore, I hold that the Respondent’s Notice of Preliminary Objection is both incompetent and or lacking in merit. Consequently, it is hereby struck out for being incompetent and or dismissed for lacking in merit. See Andrew V. INEC (2018) 9 NWLR (Pt. 1625) 507 @ pp. 540 – 541. –

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BREACH OF FAIR HEARING – DUTY OF COURTS ON AN ALLEGATION OF BREACH OF FAIR HEARING

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“The law is that each case of allegation of breach of the right to fair hearing must be decided on the peculiar facts and circumstances of each case. This is so because fair hearing is primarily a matter of fact. Thus, it is only when the facts are ascertained that the law would be applied to the facts so established to see whether or not such established facts constitute a breach of the party’s right to fair hearing. See Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), See also Newswatch Communications Limited V. Alhaji Ibrahim Attah (2006) 12 NWLR (Pt. 993) 144”.

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DENIAL OF FAIR HEARING – EFFECT OF A DENIAL OF FAIR HEARING – TRUE TEST OF FAIR HEARING

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“My lords, there can be no doubt that fair hearing, which in most cases is synonymous with fair trial and natural justice, is an issue which is clearly at the threshold of our legal system and thus once it is shown that there has been a denial of fair hearing as guaranteed by the Constitution, the whole proceedings automatically becomes vitiated. A denial of fair hearing can ensure from either the conduct of the proceedings and or the decisions of the Court in the hearing of a case. The gravamen of the complaint of the Appellant under issue one is the failure of service of hearing notice for the proceedings of 9/2/2011 in which not only two of the Respondent’s witnesses testified and were discharged from the witness stand but the Respondent’s counsel was also allowed to make his final address in the case, all in the absence of the Appellant, and the case adjourned to the very next date of 10/2/2011 for judgment, which judgment was eventually delivered on 28/2/2011 without hearing the defense of the Appellant.
I thought I should observe at once here and now, that the true test of fair hearing is indeed the impression of a reasonable person who was present at or through the trial whether from his observation justice has not only been done but is seen to have been done in the case. Indeed, justice must not only be done in the thinking of the Court but must also be seen to have been done in the thinking and or estimation of any reasonable person seised of the proceedings of the Court. See Otapo v Sunmonu (1987) 2 NWLR (Pt.58) 587. See also Wilson v. AG of Bendel State (1985) 1 NWLR (pt.4) 572; A. U. Amadi v. Thomas Aplin & Co Ltd (1972) ALL NLR 413; Mohammed Oladapo Ojengbede v. M. O. Esan & Anor (2001) 18 NWLR (Pt.746) 771”. –

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ADJOURNMENT – EXERCISE OF THE COURT’S DISCRETION ON THE ISSUE AND DATE OF ADJOURNMENT

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“In law, the issue of adjournment and indeed date of adjournment is one within the exercise of discretion of the Court below. However, such discretion must be properly and validly exercised judicially and judiciously based on the facts and circumstances of the case and not whimsically or carelessly or capriciously or thoughtlessly or even perversely with scant or little or no regards to the facts and circumstances of the case. It must also not be exercised in such a manner as to occasion a miscarriage of justice to the party. See Akinwale V. BON (2001) 4 NWLR (Pt. 704) 448 @ p. 458. See also Ashiru V. Ayoade (2006) 6 NWLR (Pt. 976) 405 @ p. 425; Olori Motors & Co. Ltd V. UBN Ltd. (1998) 6 NWLR (Pt. 554) 493 @ p. 506; Heritage Ban Co. Ltd. V. NUC (2004) 15 NWLR (Pt. 1429) 76; Ukachukwu V. PDP (2014) 4 NWLR (Pt. 1396) 90”. –

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RIGHT TO FAIR HEARING – CONSEQUENCES OF A BREACH OF THE RIGHT TO FAIR HEARING

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“Now, while it is true that “justice delayed is justice denied” yet it is also equally true that “justice rushed is justice crushed” and thus it would indeed be a travesty of justice for a Court not to properly and dispassionately hold the balance of justice between the two extremes of rushing or crushing justice. The most important thing is that at all times in proceedings before the Courts the enshrined constitutionally guaranteed rights of the citizen to fair hearing, to be fairly heard, before decision affecting his civil rights and obligations is reached, must be faithfully observed by the Courts. The right to be heard and for substantial justice to be done to the parties by the Courts cannot be sacrificed at the altar of speed! See Section 36 (1) of the Constitution of Nigeria 1999 (as amended) which provides as follows:
“In the determination of his civil rights and obligation, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
See also Abubakar V. Yar’ Adua (2008) 4 NWLR (Pt. 1078) 468 : p. 503, where the Supreme Court had stated inter alia as follows:
“….Courts of law cannot sacrifice the constitutional principle of fair hearing at the altar of speedy hearing of cases when the content of the speedy hearing is not in consonance with fair hearing….Although the law is that speedy hearing is one vital and important aspect of fair hearing, speedy hearing of a case which denies a party access to pre – trial evidence, such as interrogatories, is not fair as it turns contrary to the Constitutional principle of fair hearing. In the instant case, the Court of Appeal was wrong in rejecting the application to administer interrogatories on the ground that it would impede speedy trial of the case.”
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ACADEMIC EXERCISE – COURTS ARE NOT TO EMBARK ON ACADEMIC EXERCISE

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“My lords, having come to the inescapable conclusion that the appeal has merit in that both the proceedings of 9/2/2011 and the judgment of the Court below of 28/2/2011 were reached in flagrant breach of the Appellant’s right to fair hearing, that is indeed the end of the whole matter! Consequently, there is no longer in law any need for this Court to proceed to consider and resolve issues two and three also on their merit, since to do so at this stage would in my view amount to a mere academic exercise and a waste of the scarce and very precious judicial time on what is already staring us in our faces as a nullity. See Charles Oke & Anor V. Dr. Rahman Mimiko & Ors (2013) All FWLR (Pt. 693) 1853,where the full Court of the Supreme Court had this to say on this issue:
“It is a principle of law long settled that the general attitude of the Courts of law is that they are loathe in making pronouncements on academic/hypothetical issues as it does not serve any useful purpose”
See also Oke V. Mimiko (No. 1) (2014) 1 NWLR (Pt. 1388) 225 @ pp. 254 – 255; Mbachu V. Anambra – Imo Rivers Basin Development Authority, Owerri (2006) All FWLR (Pt. 342) 1482 @ p 1497.-

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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)|Court of Appeal Rules 2011|Court of Appeal Rules, 2016|Edo State High Court (Civil Procedure) Rules 2012|

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