Legalpedia Citation: (2024-03) Legalpedia 62701 (CA)

In the Court of Appeal

Holden at Yola

Thu Mar 28, 2024

Suit Number: CA/YL/105/2022

CORAM

Ita George Mbaba Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Peter Oyinkenimiemi Affen Justice of the Court of Appeal

PARTIES

CHRISTOPHER C. UKELERE

APPELLANTS

1. BALAMI STANLEY BATA
2. ADAMAWA STATE URBAN PLANNING DEVELOPMENT AUTHORITY (ASUPDA)

RESPONDENTS

AREA(S) OF LAW

AREAS OF LAW: APPEAL, CONSTITUTIONAL LAW, EVIDENCE, LAND, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

At the High Court of Adamawa State, the Appellant, acting as Plaintiff, claimed against the Defendants that he is the lawful owner of a portion of land measuring approximately 414.18 square meters along Dam Close, Gimba Road, Jimeta-Yola, Adamawa State, covered by Certificate of Occupancy No. ADS/1017. He asserted that he is entitled to the beneficial interest of the land to the exclusion of any other person, including the Defendants. Additionally, he sought a declaration that the 1st Defendant has no right of easement through the Plaintiff’s house, gate, and/or fence.

The case had previously been overseen by two other Honourable Judges of the High Court of Adamawa State before it was reassigned to Abdulazeez Waziri, J. (then a High Court Judge, now a Justice of the Court of Appeal), who dismissed the case on 7th March 2021. The record shows that the Respondents (as Defendants) contested the Appellant’s claims by filing separate statements of defence, to which the Appellant responded with separate replies. The case proceeded to a full trial, which eventually concluded.

At the end of the trial, the Learned Trial Judge ruled that the case would be adjourned for a visit to the locus in quo. However, the Judge was unable to make the visit due to other engagements, and when the court finally reconvened, the trial court dismissed the Appellant’s suit, relying on the provision of Order 37 Rule (4) of the Rules of this Honourable Court 2013.

This appeal represents the Appellant’s discontent with the decision of the trial court.

HELD

Appeal allowed

 

ISSUES

1. Whether the trial Judge was wrong to have dismissed the Appellant’s suit without evaluating the evidence placed before him by the respective parties on its merit, even when parties have closed their case, and thereby shut the door of fair hearing against the Appellant to a determination of his case on the merit?

2. Whether the Appellant was denied fair hearing, having not been served with a hearing notice against the hearing date of 17th March 2021, on which date his suit was dismissed at the trial Court?

RATIONES DECIDENDI

FAIR HEARING – THE IMPORTANCE OF FAIR HEARING

Fair hearing is a primordial procedural right enshrined in S. 36 of the Constitution of the Federal Republic of Nigeria, 1999 (CFRN) that subsumes the principles of natural justice encapsulated in the Latinisms – audi alteram partem and nemo judex in causa sua: the “the twin pillars of justice for the modern society or welfare or egalitarian state…the rule or principles of eternal justice”, which must be scrupulously observed whenever a person’s legal rights and obligations fall for determination in a Court of law. See OLANIYAN v UNIVERSITY OF LAGOS [1985] 2 NWLR (PT 9) 599 at 623 (per Oputa, JSC). A fair hearing must, of course, be a hearing that does not contravene the principles of natural justice: DEDUWA v OKORODUDU (1976) 1 NMLR 236 at 246. It is one of the essential cornerstones of adjudication by judicial process:AMADI v THOMAS APLIN CO. LTD (1972) 4 SC 228. – Per P. O. Affen, JCA

FAIR HEARING – THE ESSENCE OF FAIR HEARING

Fair hearing is a primordial procedural right enshrined in S. 36 of the Constitution of the Federal Republic of Nigeria, 1999 (CFRN) that subsumes the principles of natural justice encapsulated in the Latinisms – audi alteram partem and nemo judex in causa sua: the “the twin pillars of justice for the modern society or welfare or egalitarian state…the rule or principles of eternal justice”, which must be scrupulously observed whenever a person’s legal rights and obligations fall for determination in a Court of law. See OLANIYAN v UNIVERSITY OF LAGOS [1985] 2 NWLR (PT 9) 599 at 623 (per Oputa, JSC). A fair hearing must, of course, be a hearing that does not contravene the principles of natural justice: DEDUWA v OKORODUDU (1976) 1 NMLR 236 at 246. It is one of the essential cornerstones of adjudication by judicial process:AMADI v THOMAS APLIN CO. LTD (1972) 4 SC 228. – Per P. O. Affen, JCA

FAIR HEARING – ESSENTIAL INGREDIENTS OF FAIR HEARING

It was held in ALHAJI ABDULLAHI BABA v NIGERIAN CIVIL AVIATION TRAINING CENTRE [1991] 5 NWLR (PT 192) 388 and DANLADI v DANGIRI & ORS (2014) 12 SCM 178 at 225 that in order for a hearing before a judicial or quasi-judicial body to be categorised as “fair”, it must include the right of the person to be affected:

(i) to be present all through the proceedings and hear all the evidence against him;

(ii) to cross-examine or otherwise confront or contradict all the witnesses that testified against him;

(iii) to have read before him all the documents tendered in evidence at the hearing;

(iv) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial to the party, save in recognized exceptions;

(v) to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence, and

(vi) to give evidence by himself, call witnesses, if he likes, and make oral submission either personally or through a counsel of his choice.

Of course, the foregoing does not represent an exclusive checklist of boxes to be ticked when grappling with allegations of breach of fair hearing, which must be observed at all stages of the proceedings. The point to underscore is that breach of hearing does not occur in the abstract. No. The fairness or otherwise of a trial or proceeding is fact-dependent, and each allegation of breach of the right to fair hearing is assessed and decided on the peculiar facts and circumstances of each case: BILL CONSTRUCTION CO LTD v IMANI & SONS LTD/SHELL TRUSTEES LTD [2006] 19 NWLR (PT 1013) 1, (2006) LPELR-786(SC), PAM & ANOR v MOHAMMED [2008] 16 NWLR (PT 1112) 1 at 48 and GLOBAL FLEET OIL & GAS LTD v IFEANYI (2021) LPELR-54561(CA). Proceedings plagued by want of fair hearing are liable to be set aside for being a nullity: OYEYEMI v COMMISSIONER FOR LOCAL GOVERNMENT, KWARA STATE & ORS [1992] 2 NWLR (PT 226) 661 at 685, VICTINO FIXED ODDS LTD v JOSEPH OJO & ORS (2010) 4 SCM 127 at 135 – 136, KALU v STATE [2017] 14 NWLR (PT 1586) 522, AUDU v FRN [2013] 5 NWLR (PT 1348) 397 and BAMGBOYE v UNIVERSITY OF ILORIN [1999] 10 NWLR (PT 622) 290. – Per P. O. Affen, JCA

RECORD OF PROCEEDINGS – THE PRESUMPTION OF AUTHENTICITY AND CORRECTNESS OF RECORDS OF PROCEEDINGS

It is hardly necessary to state that the law presumes the authenticity and correctness of documents produced before any Court as record of evidence given in judicial proceedings. Being the only indication of what took place in Court, and always the final reference of events, step by step, that took place in Court [see FAWEHINMI CONSTRUCTION CO. LTD v OBAFEMI AWOLOWO UNIVERSITY [1998] 6 NWLR (PT. 553) 171], the record of proceedings are presumed to be correct and binding on the parties as well as the Court until they are successfully challenged and impugned. See ss. 147 and 168(1) of the Evidence Act 2011 and the cases of KOSSEN (NIG) LTD v SAVANNAH BANK (NIG) LTD (1995) LPELR-SC 90209/89, NOBIS-ELENDU v INEC & ORS (2015) LPELR-25127(SC) and ISMAILA KIWO v THE STATE (2020) LPELR-53900(SC). The parties and the Court are bound by the record and cannot depart therefrom, and certainly not on the basis of speculation. See SOMMER v FEDERAL HOUSING AUTHORITY (1992) LPELR-3103(SC) 1 at 11 (per Omo, JSC). See SOMMER v FEDERAL HOUSING AUTHORITY (1992) LPELR-3103(SC) 1 at 11 (per Omo, JSC). – Per P. O. Affen, JCA

SERVICE – THE PURPOSE OF SERVICE OF HEARING NOTICE

The purpose of service of hearing notice is to apprise parties of the pendency of, and date fixed for, a case in Court or any other place at which business of the Court is being transacted (such as visit to locus in quo). Failure to issue and serve hearing notice on a party where required constitutes a breach of the right to fair hearing and renders the proceedings conducted in his absence liable to be set aside for being a nullity: ACHUZIA v OGBOMAH (2016) LPELR-40050 (SC) 1 at 29, APEH & ORS v PDP & ORS (2016) LPELR – 40726 (SC) 1 at 22-23 and OKOLO & ANOR v IBEZIM & ANOR (2018) LPELR-44892 (CA).  – Per P. O. Affen, JCA

SERVICE – WHERE A PARTY FAILS TO SERVE HEARING NOTICE WHEN IT IS REQUIRED

The purpose of service of hearing notice is to apprise parties of the pendency of, and date fixed for, a case in Court or any other place at which business of the Court is being transacted (such as visit to locus in quo). Failure to issue and serve hearing notice on a party where required constitutes a breach of the right to fair hearing and renders the proceedings conducted in his absence liable to be set aside for being a nullity: ACHUZIA v OGBOMAH (2016) LPELR-40050 (SC) 1 at 29, APEH & ORS v PDP & ORS (2016) LPELR – 40726 (SC) 1 at 22-23 and OKOLO & ANOR v IBEZIM & ANOR (2018) LPELR-44892 (CA).  – Per P. O. Affen, JCA

FAIR HEARING – THE ESSENCE OF FAIR HEARING IN THE SCHEME OF JUDICIAL ADJUDICATION

In ACHUZIA v OGBOMAH supra at 11 – 12, the Supreme Court (per Okoro JSC) expounded the essence of fair hearing in the scheme of judicial adjudication in the following graphic terms:

“…the requirement of fair hearing implies that each party to a dispute before a Court or tribunal must be afforded adequate opportunity to state his own case. This is what is meant by the principle of audi alteram partem. It is one of the twin pillars of natural justice.

Implicit in the requirement of fair hearing is the right of every party to a case before a Court to be given notice of the date and place of hearing, for, according to an African proverb, you cannot shave a man’s head in his absence. Even in the Garden of Eden, although God knew that Adam had eaten the forbidden fruit, He still asked him “Hast thou eaten of the tree whereof I commanded thee that thou shouldest not eat?” Gen. 3:11 KJV.” – Per P. O. Affen, JCA

FAIR HEARING – FAIR HEARING WHERE A COURT FAILS TO CONVENE ON ANY DATE FIXED FOR ANY BUSINESS OF COURT

The principle of fair hearing demands that where the Court fails to sit on a date originally fixed for adjudication or a date previously fixed for trial or any other business of the Court is aborted by unforeseen circumstances, it is incumbent on the Court to cause fresh hearing notices to be issued and served on the parties to intimate them of the new date. See MANKANU v SALMAN [2005] 4 NWLR (PT. 915) at 292 – 293. Crucially, the duty of getting the hearing of a case back on track after disruption is on the Court, not on the litigant or his counsel. See SPDC NIG LTD v NIGER OPTICAL SERVICES CO [2004] 7 NWLR (PT 872) 420 at 435. Quite clearly, the trial Court got it amiss when it proceeded to dismiss the suit as it did on the basis of the absence of the Appellant on the date rescheduled for visit to the locus in quo for which there is no proof that hearing notice was duly served on him.  – Per P. O. Affen, JCA

LOCUS IN QUO – WHETHER A VISIT TO THE LOCUS IN QUO IS NECESSARY TO REACH A FINAL DECISION

Fundamentally, the law does not impose any mandatory duty on the lower Court to embark on a visit to the locus in quo, even as no compelling necessity for the visit is disclosed in the record. The Court need not visit the locus in quo before reaching a decision in all cases involving a dispute over land. As the Supreme Court (per C. C. Nweze, JSC) explained in ABDULLAHI v ADETUTU [2020] NWLR (PT 1711) 338 at 359 – 360:

“Such a visit is a matter for the discretion of the Judge if he is of the opinion that he will get a better grasp of the evidence that has been adduced before him…In other words, it is clearly at the discretion of the trial Judge to determine whether in the light of the evidence before him, there is need to resolve, by a visit to the locus in quo, the conflict of evidence or clear, a doubt as to the accuracy of a piece of evidence when the research conflict of evidence”.

Thus, the lower Court was at liberty to dispense with the visit to locus in quo and order the exchange of final addresses with a view to determining the case on its merit based on the evidence already adduced by the parties, but it failed or neglected so to do. The conclusion is inescapable that the Appellant’s right to fair hearing was unjustifiably compromised and undermined by the unwarranted dismissal of the case in the circumstances that have come to light in these proceedings, and needless to say that a grave miscarriage of justice was occasioned thereby. – Per P. O. Affen, JCA

JUDGE – THE MAIN HIRE OF A JUDGE

The main hire of a Judge is to do justice to the parties {see PAM & ANOR v MOHAMMED & ANOR (2008) 5 – 6 SC (PT 1) 83], but it is unfortunate in the extreme that justice was not done in the case that generated the instant appeal. This brings to fore the imperative for Courts of law, which are also Courts of equity, to act with utmost circumspection and not be hasty in dismissing cases pending before them even when they are understandably piqued by the unholy stratagems of parties and counsel alike. As the Supreme Court admonished in LAYANJU v ARAOYE (1961) SCNLR 416 at 420 (per Brett, FJ): “However provoked the learned Judge may have been by the conduct of the appellant, I find it impossible to justify his action in denying the appellant the opportunity of being heard”. Breach of fair hearing is always a blight in any proceedings it rears its ugly head, so the watchword always is to make haste slowly! – Per P. O. Affen, JCA

FAIR HEARING – THE IMPACT OF A BREACH OF FAIR HEARING IN JUDICIAL ADJUDICATION

As stated hereinbefore, breach of fair hearing is fundamental and goes to the foundational roots of judicial adjudication: the whole proceedings in the course of which the breach occurred and the decision reached thereat constitute a nullity. See BAMGBOYE v UNIVERSITY OF ILORIN [1999] 10 NWLR (PT 622) 290 and OTAPO v SUNMONU (1987) 5 SC 228. – Per P. O. Affen, JCA

TRIAL JUDGE – WHETHER THE TRIAL JUDGE CAN SUBSTITUTE HIS VIEW FROM VISIT TO LOCUS WITH THE EVIDENCE ADDUCED BY THE PARTIES

From the records, both parties had closed their case and the matter adjourned for visit to locus in quo. This visit to the locus is not part of the Appellant’s duty in the lower Court. The visit was at the instance of the Court. It is noteworthy to point out that even for the Court, a visit to the locus in quo does not constitute evidence upon which it can act. In other words, the trial Judge is not entitled to substitute his views from the visit with the evidence adduced by the parties before it. His decision can only be determined from concrete evidence before him and never from his impressions from the visit. – Per P. A. Mahmoud, JCA

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. High Court Civil Procedure Rules, Yola, Adamawa State, 2013
3. Evidence Act 2011  CLICK HERE TO READ FULL JUDGEMENT