CORAM

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Folasade Ayodeji Ojo Justice of the Court of Appeal

Binta Fatima Zubairu Justice of the Court of Appeal

Uwabunkeonye Onwosi Justice of the Court of Appeal

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PARTIES

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AKWA IBOM STATE GOVERNMENT

APPELLANTS 

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IME UMANAH JNR

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CONSTITUTIONAL LAW, ADMINISTRATIVE LAW, EVIDENCE LAW, PRACTICE AND PROCEDURE, FAIR HEARING, JUDICIAL DISCRETION, DOCUMENTARY EVIDENCE, CROSS-EXAMINATION, ADJOURNMENT APPLICATIONS

 

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SUMMARY OF FACTS

By a Writ of Summons dated 24th February 2016, and subsequently a second amended statement of claim dated 15th November, 2016, the Respondent (Ime Umanah Jnr) commenced an action against the Appellant (Akwa Ibom State Government) seeking N427,500,000 (Four Hundred and Twenty-Seven Million Five Hundred Thousand Naira) being the value of plant/machinery assets destroyed and scrapped by the Defendant’s agents, by its 2007 valuation; the sum representing the difference between 2007 and date of judgment based on the difference in exchange rate of the Naira to the US dollar; and interest on the sums at 10% per annum from date of judgment till full liquidation. The Appellant filed an amended statement of defence dated 21st June, 2017, while the Respondent filed an amended reply dated 19th July, 2017.

During trial, the Respondent called two witnesses (PW1 and PW2) and tendered documents including Exhibits A, B, C, D, and E. The Appellant called one witness (DW1) and tendered some documents. On 3rd July, 2018, the trial Court ordered a visit to locus in quo. The critical issue arose when the Appellant’s Counsel, Jerome Akpan (a Chief State Counsel), repeatedly sought adjournments and was ultimately foreclosed from cross-examining PW2. On 13th December, 2017, the Appellant’s Counsel was absent without explanation, and on 14th December, 2017, counsel claimed he was not ready because the file was given to him that day and later cited ill-health. The trial Court refused the adjournment and foreclosed cross-examination. The trial Court delivered judgment on 30th October, 2018, in favour of the Respondent. Dissatisfied, the Appellant filed an amended notice of appeal on 6th July, 2021, setting out three grounds of appeal.

 

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HELD

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1.The appeal was dismissed.

2.The judgment of the High Court of Justice, Akwa Ibom State, Abak Judicial Division, delivered by Hon. Justice Ini-Abasi T. Udobong in Suit No: HU/64/2014, was affirmed.

3.The Court held that the Appellant was not denied fair hearing as the trial Court had created ample opportunities for cross-examination which the Appellant’s Counsel failed to utilize.

4.The Court found that the trial Court properly exercised its discretion in refusing adjournment and foreclosing cross-examination of PW2.

5.The Court held that the documents tendered, including Exhibit B (valuation report), were properly admitted and evaluated by the trial Court.

6.Parties were to bear their respective costs.

 

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ISSUES

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1.Whether the Court in relying wholly on the testimony of the Respondent’s 2nd witness in his Judgment after foreclosing the Appellant from cross examination of the witness has not deprived the Appellant of fair hearing?

2.Considering the entire circumstances of this case, whether the trial Court was correct in holding that the Respondent’s case was meritorious and should be allowed?

3.Considering the facts of this case, whether the learned trial Judge was right in granting the Respondent the relief sought?

 

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RATIONES DECIDENDI

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ADJOURNMENT APPLICATIONS – DISCRETIONARY NATURE AND REQUIREMENTS FOR GRANT

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“The grant or refusal of an application for adjournment is discretionary, that is, it is within the discretion of the Court. In exercising its discretion, no case can be authority for the other because that in effect would be an end to discretion. Each case has its own peculiar facts which cannot be the same with the others although there may be similarities. In exercising its discretion, the Court must consider the totality of the cases.” – Per UWABUNKEONYE ONWOSI, J.C.A.

 

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ADJOURNMENT APPLICATIONS – WHEN APPLICATIONS MAY BE REFUSED

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“When an application for adjournment is unnecessary or not reasonable, the Court may deny same and proceed with the case.” – Per NGWUTA, J.S.C. (quoted in MFA & ANOR V. INONGHA)

 

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ADJOURNMENT APPLICATIONS – PRINCIPLES GOVERNING GRANT OR REFUSAL

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“Now, the law, by a long line of cases, is, and has always been, that adjournment of cases fixed for hearing are not obtainable as a matter of course or as of right, but may be granted or refused at the discretion of the Court. It is elementary that discretion is a very fluid situation and when a Court is invited to exercise its discretion one way or the other, the Court has to take cognizance of the very facts of the case before it. A Court must always exercise its discretion only on the basis of the materials placed before it and on no extraneous considerations.” – Per HARUNA v. KANO STATE

 

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ADJOURNMENT APPLICATIONS – DUTY TO PLACE SUFFICIENT MATERIALS BEFORE COURT

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“When a case has been fixed for hearing, the trial Court must ensure the hearing of the case except if a party applying for adjournment showed sufficient reason why the case must be adjourned, that is, by placing sufficient materials before the Court upon which it can exercise its discretion, otherwise, an adjournment of a case fixed for hearing would mean further delay to the other litigants who might otherwise have had their cases heard.” – Per NWADIOGBU V. ANAMBRA/IMO RIVER BASIN DEVELOPMENT AUTHORITY

 

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FAIR HEARING – DUTY OF COURT TO CREATE ENABLING ENVIRONMENT VERSUS PARTY’S DUTY TO UTILIZE OPPORTUNITY

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“I said it in the past and I will say it here again that the duty of the Court, trial and appellate, is to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the Court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the Court cannot turn around to accuse the Court of denying him fair hearing.” – Per INAKOJU AND ORS VS. ADELEKE & ORS

 

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FAIR HEARING – NATURE AND SCOPE OF THE RIGHT

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“The right to fair hearing is a fundamental principle enshrined in Section 36(1) of the 1999 Constitution of Nigeria (as amended), which provides that: ‘In the determination of his civil rights and obligations, 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.'” – Per FOLASADE AYODEJI OJO, J.C.A.

 

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CROSS-EXAMINATION – FUNDAMENTAL NATURE AND PURPOSE

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“Fair hearing includes the right of a party to present her case fully and challenge the evidence presented by the opposing side through cross-examination. It is a cardinal principle of natural justice that a party should not be condemned unheard. Cross-examination is a vital tool for testing the veracity of a witness. The Court must allow a party the opportunity to cross-examine a witness whose testimony is adverse to it, otherwise it violates the principles of fair hearing.” – Per FOLASADE AYODEJI OJO, J.C.A.

 

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FAIR HEARING – LIMITATIONS AND PROCEDURAL REQUIREMENTS

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“While the right to cross-examine is fundamental, it must be exercised within the procedural limits allowed by law. A trial Court is not bound to grant endless adjournments to enable a party cross-examine a witness, particularly where such a party has failed to seize prior opportunities. The power to regulate proceedings is within the discretion of the trial Court, and such discretion must be exercised judicially and judiciously.” – Per FOLASADE AYODEJI OJO, J.C.A.

 

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FAIR HEARING – WHEN NO DENIAL OCCURS

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“Fair hearing does not mean endless opportunities to delay proceedings. A party who deliberately refuses to utilize the opportunity to be heard cannot turn around to complain of denial of fair hearing.” – Per EMMANUEL V. UMANA

 

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UNSIGNED DOCUMENTS – GENERAL RULE AND EXCEPTIONS

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“Generally, an unsigned document is inadmissible in evidence same being a worthless piece of paper with no evidential value. However, an unsigned document is not worthless as it can be admissible in evidence and any objection to its admissibility will be overruled. The point has to be made that the requirement of signature is made by the law to determine its origin and authenticity with regard to its maker and so where certain situations exist an unsigned document could be admissible as in this instance where oral evidence clarifying the document and its authorship as in the case at hand thereby rendering such an unsigned document admissible.” – Per ASHAKACEM V. ASHARA MUBASHSHURUN INVESTMENT LTD

 

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DOCUMENT ADMISSIBILITY – RELEVANCY AS HALLMARK

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“Relevancy is the hallmark of admissibility. Therefore, if a document is relevant and has been proved to be relevant, notwithstanding that it is signed or unsigned, it shall be binding on the Court that receives same, in view of the fact that the Courts have been enjoined to strive more for substantial justice and to shun technical justice. Technicalities should not be allowed to defeat the course of justice.” – Per UWABUNKEONYE ONWOSI, J.C.A.

 

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EVIDENCE EVALUATION – WEIGHING OF TESTIMONIES

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“A Trial Court appraises evidence by constructing an imaginary scale of justice and putting the evidence of the parties on the two different pans of the scale of justice. Then it weighs them to determine which is heavier, not in terms of quantity, but quality of the testimonies.” – Per UWABUNKEONYE ONWOSI, J.C.A.

 

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UNCHALLENGED EVIDENCE – EFFECT OF FAILURE TO CROSS-EXAMINE

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“Where a party fails to cross examine the witness of an adverse party on a matter, the Court is duty bound to accept the unchallenged facts as proved. In the instant case, the appellant’s counsel did not Cross examine PW5 and most of the witnesses for the prosecution. Their evidence therefore remain unchallenged and uncontroverted. The Court is entitled to act on their evidence as proof provided they are not manifestly untrue.” – Per ABDULLAHI v. STATE

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Evidence Act 2011

3. Court of Appeal Rules 2021

 

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