Alhaji Ahmadu Musa V. Alhaji Bukar Dalwa & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HON. JUSTICE BODE RHODES-VIVOUR, J.C.A. (Delivering the Leading Judgment)

This is an appeal against a judgment of K. M. Kolo, Chief Judge Borno State (as he then was) given on the 21st day of July, 1998 whereby judgment was entered for the Plaintiffs jointly and severally for the sum of N150,000.00 with costs assessed at N1,500.00. The Plaintiffs are the Respondents before this Court. The appeal, though against the whole judgment is really against the way the learned trial Judge conducted the case. The appellant complains of being denied fair hearing. In accordance with Order 17 rule 2 of the Court of Appeal Rules 2007 the appellants brief flied on the 20th of June 2003 was deemed duly filed and served on the 21st of January, 2004. The Respondents did not file a brief. Learned Counsel for the appellant formulated a sale issue for determination. It reads:

“Whether the appellant was accorded fair hearing in the conduct of the proceedings by the lower court and whether the refusal of the Lower Court to recall the Respondents for cross-examination by the appellant accords with fair hearing”

At the hearing of the appeal on the 23rd day of February, 2010 learned counsel for the appellant N. A. Dammo Esq. adopted his brief and urged us to allow the appeal.

The Respondents were absent and unrepresented at the hearing of the appeal.

In his brief, learned counsel for the appellant argued that the refusal by the learned trial judge to allow the appellant recall PW1, PW2, PW3 for cross examination amounts to denying the appellant a fair hearing. Reliance was placed on Section 36 of the Constitution.

M.G. Imo State v Nguwa 1997 2 NWLR Pt 490 p. 675 Nig. Arab Bank Ltd v Commex 19996 NWLR Pt. 608 P. 648 Nakundi v Rabiu 1998 3 NWLR Pt 543 p. 671

He submitted that since the appellant was denied fair hearing the proceedings in the Court below are null and void ab initio.

In a considered Ruling delivered on the 7th day of May, 1997 the learned trial judge dismissed the appellants application to recall PW1, PW2 and PW3 for cross-examination.

This is what His Lordship had to say:

“…Court business is a serious matter. It is firm and steadfast. If a party were put on Notice for the date of hearing and the party refused failed or neglected to appear, such a party cannot be heard to say he was not given opportunity to cross-examine the witnesses nor could he be heard to say that he was not afforded a fair hearing.. Once a court is satisfied that a party is served with the appropriate notice the court would forge ahead as it is not for the Court to wait for the parties and their counsel rather it is for the parties to wait for the court. It is therefore my view that in the instant case there is no basis to recall the Plaintiffs who testified on their own behalf in the absence of the defendant who was aware of the date but chose to be absent. There is no compelling reason to recall the said Plaintiffs for the purpose of cross-examination. That opportunity had slipped away and slipped away for ever …”

The above explains why the learned trail Judge did not allow the appellant to recall PW1, PW2, PW3 for cross-examination. ”

It is apposite I review proceedings in the Court below. The writ of Summons and statement of claim were served on the appellant (a fact not denied by the appellant). On the 9th of October, 1996 trial commenced.” Records of appeal show that the appellant was served, but was absent and, unrepresented. PW1, PW2, PW3 gave evidence on Oath. On the 13th of January, 1997 the appellants counsel was present in Court. He informed the Court that he had an application to file statement of defence out of time. The Motion was heard on the 16th of January, 1997 and granted. Appellant’s motion to recall PW1, PW2, PW3 for cross-examination was heard on the 22nd of April 1997 and dismissed in a considered ruling, delivered on 7th of May 1997. The following witnesses (which included the Respondents) testified for the Respondents during trial.

1. Alhaji Bukar Dahoa
2. Modu Ganemami
3. Goni Buji
4. Abdullahi Ladu Bukar
5. Modu Gana Dan Azumi
6. John Aliya

Nos. 4, 5, and 6 were cross-examined by Mr. Dada Learned Counsel for the appellant (see pages 13, 14, and 16 of the Record of Appeal).