Alhaji Saka Ashiru V. Idris Ayoade (2005)

LawGlobal-Hub Lead Judgment Report

TABAI, J.C.A.

The plaintiff who is the respondent herein claimed against the defendant who is the appellant herein the following relief:

“(1) Declaration that the plaintiff is entitled to the statutory right of occupancy to the piece of land situate, lying and being at Sango area along Ilesa Ibaripa Road, Saki more particularly delineated on survey plan number LS AT/Y/149 drawn and signed by W. T. Adeniji dated 4th day of June, 1993 edged red on an area of 1086.112 square meters.

(2) The sum of one hundred thousand naira (N100, 000.00) only being aggravated and general damages for trespass and unlawful demolition of the plaintiff’s foundation erected on the land in dispute.

(3) An order of perpetual injunction restraining the defendant, his agents, privies, servants or any other person whatsoever from further acts of trespass on the said land in dispute.”

On his part the appellant in his statement of defence and counter-claim also claimed the following reliefs against the respondent:

“(1) A declaration that the defendant is entitled to a statutory right of occupancy to that piece or parcel of land situate lying and being at Saka Mechanic Area along Ilesha Ibaripa Road measuring approximately 1762.116 square metres more particularly delineated in survey plan No. LW 131.93 filed by the defendant in this suit and verged red on the plan.

(2) Injunction restraining the plaintiff, his agents and/or servants or any person or persons claiming title through him from interfering with the defendant’s ownership and possessions of the said land.”

At the trial, four witnesses gave evidence in support of the plaintiff’s case. And four witnesses including the defendant himself gave evidence for the defence. The DW3 and the defendant himself testified on the 4/7/94. The matter was adjourned to the 11/7/94 from whence the events which have given rise to this appeal really started.

On that 11/7/94, although the plaintiff had been stated to be very ill and bedridden, the parties were recorded to be present. Counsel for both parties was also present in court. Learned counsel for the defendant told the court that his last witness was not in court. This is at page 33 line 42 of the record. The reason for his absence was not recorded thereat. But from the remarks of the trial Judge on the 18/7/94 at page 34 lines 14-16 of the record, the witness was reportedly absent due to sickness. The matter was however adjourned to the 18/7/94. The learned trial Judge remarked that that would be the last adjournment.

On the 18/7/94, the parties were in court. But learned counsel for the defendant wrote for further adjournment apparently due to scarcity of fuel. The application for adjournment was from the record opposed by learned counsel for the plaintiff. And the learned trial Judge reacted in the following terms:

“I mentioned to him at the last adjournment that the adjournment then would be the last adjournment, he has now shifted his reason for adjournment from the sickness of his possible witness whom he said to be ill for another two months to scarcity of fuel. There is no doubt in my mind that the defence counsel is adopting all sorts of delay tactics to frustrate the court from finishing the case as quickly as possible. I am not disposed to granting any further adjournment at this stage.

Mr. Siyanbola says he is opposing the application for another adjournment because the previous adjournments were at the instance of the defence counsel based on flimsy excuses. He says a motion on notice was filed by the plaintiff’s counsel on 6/6/94 praying the court to enter judgment as per the writ of summons. Urges the court to grant the application by refusing further adjournment.

Order: Application is hereby granted. The court will deem it as the defence has decided to close the defence.

The plaintiff’s counsel will now be called upon to address the court if he is willing to do so.”

Plaintiff’s counsel then addressed the court at the end of which judgment was reserved for the 25th July, 1994. Judgment was however delivered on the 28th July, 1994. (See pages 33-35 of the record.)

As I stated earlier on in the judgment, the above is the proceedings of the 11/7/94 and 18/7/94 and which the very factual foundation of this appeal is. The notice of appeal filed on the 19/10/94 contained six grounds of appeal, the sixth of which was the omnibus ground. Briefs of argument were filed and exchanged. The appellant’s brief of argument was settled by Kunle Kalejaiye. That of the respondent was settled by Chief Olawuwo Siyanbola. Two issues were raised in the appellant’s brief and they are:

“(1) Whether the court below was right and not in breach of the principles of natural justice to wit fair hearing, to have refused the defendant’s application for adjournment on the 18th of July, 1994, closed the case of the defendant on the same 18th of July, 1994, a date which the case was adjourned to for hearing of motion and hearing.

“(i) Whether the court below was not in breach of the principles of natural justice to wit fair hearing, when it went ahead to hear a motion to dispense with further examination of witnesses and enter judgment as per writ of summons without calling on the defendant who was present in court to react to the said motion or proceed with his case.”

In the respondent’s brief of argument, only one issue was formulated and it is:

“Whether the appellant’s right to fair hearing was breached in the course of the conduct of the trial before the lower court and thereby occasioned a miscarriage of justice.”

It is to be observed that grounds 1, 2, 3 and 5 all raise the issue of breaches of natural justice and fair hearing. It is my view that only a single issue is derivable from the said grounds. No issue was formulated from ground 4 which ground complains of the award of N5,000.00 damages. The said ground is abandoned and is liable to be struck out. Similarly no issue was distilled from the omnibus ground 6 of weight of evidence. The reliefs sought from this court as stated in paragraph 4 of the notice of appeal are:

“(1) to declare the proceedings of the 18th and 28th days of July, 1994 null and void;

(2) to set aside the judgment of the lower court delivered on the 28th of July, 1994; and

(3) to order a retrial.”

These reliefs are incompatible with the omnibus sixth ground of appeal. The effect is that grounds 4 and 6 are abandoned and same are hereby struck out. With respect to the issues, it is my view that the only conceivable issue from grounds 1,2,3 and 5 is whether in the conduct of the trial, the appellant’s right to fair hearing was breached and in that respect I agree with the learned counsel for the respondent.

In the respondent’s brief of argument, learned counsel for the respondent filed a notice of preliminary objection to the competence of the appeal and that has, of necessity, to be taken first. It was his contention that the substance of the challenges in grounds 2 and 3 were decisions of the learned trial Judge refusing adjournments on the 11th and 18th of July. It was his submission that since the two decisions refusing adjournment were interlocutory, the appellant ought to seek leave of the court of appeal and the appeal ought to have been filed within 14 days as required in section 25(2)(a) of the Court of appeal Act. It was further argued that since the decisions were interlocutory, leave was required by virtue of sections 220(1) and 221(1) of the 1999 Constitution. It was his submission that by reason of the above, the appeal is incompetent and same ought to be struck out. For these submissions, he relied on Ogunleye v. Military Administrator of Ondo State (1996) 9 NWLR (Pt. 471) 176 at 280-282; Afribank (Nig.) Ltd. v. Caleb Owoseni (1995) 2 NWLR (Pt. 375) 110; Wuyep v. Wuyep (1997) 10 NWLR (Pt. 523) 154 at 164. Finally, it was contended that the particulars of error in grounds 1, 2, 3 and 5 are not borne out of the record and that the particular should be struck out. The result, it was argued, is that the said grounds are without particulars which therefore remain incompetent and should be struck out. He relied on Anyaoke v. Adi (1986) 3 NWLR (Pt. 31) 732 at 40-41; Dantubu v. Adene (1987) 4 NWLR (Pt. 65) 314 at 321-322 and Nwadike v. Ibekwe (1987) 4 NWLR (Pt. 67) 718 at 728-729.

Learned counsel for the appellant did not file a reply brief and did not address the preliminary objection in his oral argument. We do not therefore have the benefit of his opinion on the preliminary objection. On the point in the objection, I agree with the submission of learned counsel for the respondent that by virtue of the provisions of Order 3 rule 2(2) of the Court of Appeal Rules 2002, a ground of appeal that alleges misdirection or error in law must clearly state the particulars of such misdirection or error failing which the ground of appeal can be struck out for incompetence. See Mumu v. Agor (1993) 8 NWLR (Pt. 313) 573; Osawaru v. Ezeiruka (1978) 6-7 SC 135; Anadi v. Okoli (1977) 7 SC 57 at 63. It is not in all cases however, that a ground of appeal without particulars becomes incompetent. In some cases, it is sufficient if the particulars of misdirection or error are embedded in the ground itself to the extent that they are clearly understood by the court and the respondent. See Alfa Muritala Amoo v. Wahabi Aderibigbe (1994) 2 NWLR (Pt. 324) 92 at 110-111; U.B.A. Ltd. v. Achoru (1990) 6 NWLR (Pt. 156) 254; Ayua v. Adasu (1992) 3 NWLR (Pt. 231) 600598 at 612.

In the instant case, I agree that the particulars in ground 1 contain some extraneous matters like junior workers being on strike. But facts like the last defence witness’ inability to be in court on health ground, the question of fuel scarcity were before the court as they were in fact alluded to by the learned trial Judge at page 34 of the record. Besides, even the grounds of appeal themselves without the particulars sufficiently inform the court and the respondent of the appellant’s complaint about breach of his rights reserved under Chapter IV of the Constitution. The said grounds without their particulars are:-

“(1) The learned trial Judge erred in law and breached all rules of natural justice and fair hearing by proceeding to give judgment on the matter when in fact, the defendant had not concluded its case and therefore occasioned a miscarriage of justice.

(2) The learned trial Judge wrongly exercised his discretion by not granting an adjournment sought for on the 11th of July based on a medical advice that the grantor would not be medically fit to attend court and give evidence until after three months and thereby occasioned a miscarriage of justice when he proceeded to give judgment without the evidence of the grantor which was vital to the defence case.

(3) The proceedings of the court on the 18th of July and the judgment delivered on the 28th were irregular and in breach of all rules of natural justice and therefore null and void.

(5) The learned trial Judge was biased and therefore the defence did not obtain a fair hearing.”

The totality of the complaints in these grounds of appeal is that the proceedings of the 11th and 18th of July, 1994 violated the appellant’s rights of fair hearing under the Constitution and therefore that the said proceedings and the subsequent judgment of the 28th July, 1994 are null and void. I hold on this issue therefore that grounds 1, 2, 3 and 5 even without their particulars sufficiently inform the court and the respondent of the complaint of the appellant. The single issue of the alleged breach of the appellant’s right of fair hearing is derivable from the said grounds. It is my view therefore that grounds 1, 2, 3 and 5 are competent.

The second ground of objection is that the decisions of the learned trial Judge refusing the appellant’s application for adjournment were interlocutory decisions against which appeals can only lie with the leave of court. It was further submitted that the grounds involve both issues of law and facts for which also there can be no appeal without the leave of court. Learned counsel for the respondent relied on section 242(1) of the Constitution.

My reaction to this is that section 242(1) of the Constitution is subject to the provisions of section 241 of the Constitution. And the provision which adequately disposes of this objection is section 241 (1)(d) of the Constitution. Section 241(1) states:

“An appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following cases-

(d) decisions in any civil or criminal proceedings on questions as to whether any of the provisions of Chapter IV of this Constitution has been, is being or is likely to be, contravened in relation to any person.”

The entire appeal is based on the alleged violation of the appellant’s right of fair hearing under section 36 Chapter IV of the Constitution for which the appellant can appeal as of right irrespective of whether the decision is final or interlocutory.

On the whole, it is my respectful view that the preliminary objection was misconceived and same is refused. It is accordingly struck out.

On the single issue of whether the appellant’s fundamental rights of fair hearing were breached in the proceedings of the 18th July leading to the judgment of the 28th July, 1994, learned counsel for the appellant made the following submissions. He referred to section 36(1) of the Constitution and submitted that the fair hearing required is not one in favour of one party and to the detriment of the other. In support of this, he relied on Bakare v. L.S.C.S.C. (1992) 8 NWLR (Pt. 262) 641; Ndu v. State (1990) 7 NWLR (Pt. 164) 550 and E. D. Tsokwa v. C.F.A.O. (1993) 5 NWLR (Pt. 291) 120. On the effect of a breach of the right of fair hearing, he referred to Akoh v. Abuh (1988) 3 NWLR (Pt. 85) 696; Ceekay Traders Ltd. v. General Motors Co. Ltd. (1992) 2 NWLR (Pt. 222) 132. It was his further submission that the grant or refusal of an application for adjournment is a discretionary one but which discretion must be exercised judicially and judiciously. It was submitted also that every application for adjournment must be considered on its merit and relied on E. D. Tsokwa and Sons Ltd. v. C.F.A.O. (supra) at 127. It was contended that the appellant’s application for adjournment on the 18th July, 1994 was not considered on its merit. While he conceded that a Judge must not bend over backwards to await a defendant to conclude his case at his pleasure, he insisted that justice must not be sacrificed on the altar of speed. He referred to Cross Lines Ltd. v. Thompson (1993) 2 NWLR (Pt. 273) 74 at 80-81; U.B.A. Plc. v. Mode (Nig) Ltd. (2001) 13 NWLR (Pt. 730) 335 He submitted that a judgment that is hastily and hurriedly given can amount to a denial of justice. He cited A. Manufacturing Ind. (Nig.) Ltd. v. Akiyode (2000) 13 NWLR (Pt. 685) 576 at 588 and Francis v. Osunkwo (2000) 7 NWLR (Pt. 666) 564. It was contended that after refusing the application for adjournment, the learned trial Judge had a duty to call on the appellant who was present in court to proceed with the case before closing it. He relied on Ceekay Traders Ltd. v. General Motors Ltd. (supra). He submitted that where an adjournment which was necessary in the interest of justice was refused by a trial court, an appellate court would be justified to interfere and that the circumstances of this case necessitate the interference of the appellate court. He relied on Bedding Holdings Ltd. v. N.E.C (1992) 8 NWLR (Pt. 260) 428 and E. D. Tsokwa Ltd. v. C.F.A.O. (supra). On this issue of fair hearing, counsel relied further on Akande v. State (1988) 3 NWLR (Pt. 85) 681 and Ogundoyin v. Adeyemi (2001) 13 NWLR (Pt. 730) 403 at 423.

The substance of the submission of learned counsel for the respondent is as follows. He pointed out firstly that the last witness for whose testimony the appellant sought the adjournment was the Okere of Saki Oba Alhaji Tijani Abimbola Oyedokun II otherwise referred to as the common grantor who signed exhibit ‘B’ by which title of the land in dispute was vested in the respondent. It was his contention that since his oral testimony would not, in any case, have varied the contents of exhibit “B” by virtue of the provisions of section 132(1) of the Evidence Act, the refusal to grant the adjournment was not detrimental to the case of the appellant. He relied on U.B.N. Ltd. v. Ozigi (1994) 3 NWLR (Pt. 333) 385 Learned counsel restated the factual situation and contended that the only reasonable inference was that the appellant was embarking on delay tactics to frustrate the trial. He relied on North West Heavy Duty Ind. Plastics Ltd. v. B. O. Folarin (1992) 5 NWLR (Pt. 239) 54 at 64-66; Crosslines Ltd. v. Thompson (1993) 2 NWLR (Pt. 273) 74 at 80-81; Jonason Triangles Ltd. & Anor. V. Charles Moh and Partners Ltd. (2002) 9-10 SC 53 at 155-165, (2002) 15 NWLR (Pt. 789) 176.

I shall now consider the issue of whether the appellant’s right of fair hearing was violated in the proceedings of the 18/7/94. The complaint of the appellant is in two dimensions. The first is the refusal to grant the adjournment sought. The second is the procedure adopted by the learned trial Judge after the refusal to grant the adjournment. The relevant provision is section 36(1) of the Constitution which enacts:

“36(1) 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.”

The operative words are that he shall be entitled to a fair hearing within a reasonable time. Whether or not to grant an application for adjournment falls entirely within the discretion of the court based on the peculiar facts and circumstances of the case. But the discretion must be exercised judicially and judiciously. And for the purpose of exercising the discretionary jurisdiction judicially and judiciously and thus uphold the fundamental constitutional requirement of fair hearing within a reasonable time, the court must strive to balance the requirement of fair hearing with the requirement of hearing within a reasonable time. Any total disregard for the need to balance the two requirements leads invariably to a denial of justice to one or other of the parties. See Rasaki A. Salu v. Madam Towuro Egeibon (1994) 6 NWLR (Pt. 348) 23 at 49-50 and 53; Obomhense v. Erhahon (1993) 7 NWLR (Pt. 303) 22 at 45 and 47.

It must however be emphasized that while the court must, at all times, remain focused at striking a balance between the need for fair hearing and hearing within a reasonable time, the all parading consideration should be the ultimate goal of substantial justice. The demands of quick justice should not be pursued at the risk of injustice. In Ceekay Traders v. General Motors Co. Ltd. (supra) at 162, the Supreme Court per Olatawura, JSC said:

“We must balance the need not to delay justice with an important requisite in the administration of justice-non-denial of justice by not refusing adjournment where compensation by way of costs will be adequate and just. Delay of justice is bad, but denial of justice is worse and outrageous. The denial inflicts pain, grief, suffering and untold hardship on those who rely on impartial administration of justice.”

And finally on this point every application for adjournment must be considered on its merits. See E. D. Tsokwa Ltd. V.C.F.A.O. (supra) at 127. Thus, in considering whether or not to grant a request for any adjournment, the court must first confine itself to the reasons for that particular adjournment sought before considering previous applications for adjournment. This is because the reasons and circumstances for one request for adjournment might be completely different from another. A court’s negative impression about a previous application for adjournment should not be allowed to becloud its dispassionate consideration of a subsequent one.

As I stated earlier above, the defendant/appellant himself and one other witness testified on the 4th of July, 1994 from which date the matter was adjourned to the 11th of July, 1994. On the 11th July, 1994 defence counsel was recorded to have informed the court that the last witness for the defence was not in court. It is not stated clearly if he sought adjournment. But from the reaction of plaintiff’s counsel, Mr. Siyanbola at page 33 of the record, his submissions at page 12 of the respondent’s brief of argument and the court’s remarks on the 18th July, 1994 at page 34 of the record, it is clear that defence counsel sought adjournment for about two months because the last witness, the Okere of Saki Oba Alhaji Tijani Abimbola Oyedokun II otherwise referred to as the common grantor was not available on health grounds. The court was not sufficiently persuaded to grant the long two months adjournment sought and so granted an adjournment for only 7 days to the 18th of July, 1994. In so far as the proceedings of the 11th of July, 1994 are concerned there is nothing to show that the court’s discretion was wrongly exercised. It is however necessary to point out that the court ought to have recorded the reasons for the long adjournment sought and the reasons why it granted only 7 days adjournment. The failure of the court to so record poses us some impediments in our assessment of the proceedings of the 11th of July, 1994. It is my considered view however that the default in recording the reasons, without more, cannot be held to constitute a breach of the appellant’s right of fair hearing in the proceedings of the 11th of July, 1994.

The crux of the matter is the proceedings of the 18th of July, 1994. The defendant was present in court. His counsel Mr. M. L. Abimbola wrote for adjournment. The court did not call for the reaction of Mr. Siyanbola, learned counsel for the plaintiff before proceeding to record its own reaction as follows:

“I mentioned to him at the last adjournment that the adjournment then would be the last adjournment, he has now shifted his reason for adjournment from the sickness of his possible witness who was said to be ill for another two months to scarcity of fuel. There is no doubt in my mind that the defence counsel is adopting all sorts of delay tactics to frustrate the court from finishing the case as quickly as possible. I am not disposed to granting any further adjournment at this stage …”

It is clear from the foregoing that the reasons for the application for adjournment on the 18th of July, 1994 were completely different from those of the previous application on the 11th of July, 1994.

The court was, first of all, bound to consider the application of the 18th of July, 1994 on its own merits without reference to the previous application of the 11th of July, 1994. It was bound to take cognizance of the fact that the helpless defendant was in court. The record shows that the court completely ignored his presence. Again the various processes filed in the court show that while the address of the plaintiff’s counsel was White House, Ajegunle, Saki, that of defence counsel was Olusegun House (2nd Floor) Mokola Roundabout, Ibadan. As indicated in the court’s reaction, the reason for the application for adjournment was fuel scarcity. The court was bound to address that issue of whether or not there was prevalent scarcity of fuel in Ibadan at the material time. The court had a duty to take judicial notice of (i) the distance between Ibadan and Saki and (ii) the fact that in periods of prevalent fuel scarcity movements of persons are disrupted. There is nothing on the record to show that these were given due consideration. Again the court ought to have heard from the defendant who was present in court. The court had a duty to find out from the defendant how he got the letter of application for adjournment from his counsel in Ibadan. This, the court failed to do. The court’s attitude showed a total disregard for the presence of the appellant in court. And so before the court’s exercise of its discretion to grant or refuse the adjournment, the defendant was not heard. Thus it is clear from the record that the application of the 18th of July, 1994 was not heard on the merits and the proceedings in total disregard of the defendant’s rights to be heard before it was refused. I would not therefore hesitate to hold that before the application was refused the court breached the defendant’s/appellant’s right of fair hearing.

This is not the end of the matter. What appears to me to be the more fundamental breach was the court’s proceedings after refusing the application for adjournment. The court continued the total disregard for the defendant’s rights to be heard and proceeded as though he was not in the court. He closed the case of the defence and called on appellant’s counsel for his address which he gave and adjourned for judgment. It eventually entered judgment for the plaintiff/respondent. Before the court decided to close the case of the defence, it ought to have informed the defendant of its intention so to do and call for his reaction. See Ceekay Traders Ltd. v. Gen. Motors Co. Ltd. (supra) at pages 156-157 and 162. The court failed to grant this opportunity to the defendant/appellant on the 18th of July, 1994.

Again having closed the case of the defence, the learned trial Judge was, in the circumstances of the case, bound to extend the opportunity which he gave to the plaintiff also to the defendant for a final address on his behalf. Section 294(1) of the 1999 Constitution avails him that right of final address. And it is settled law that where such a right is denied and the denial occasions some miscarriage of justice, the entire proceedings may be rendered a nullity. On the effect of the denial of a party’s right to final address see Obodo v. Olomu & Anor. (1987) 3 NWLR (Pt. 59) 111 where Belgore, JSC had this to say:-

“The procedure whereby the parties to a case at the conclusion of evidence are to address the court on the evidence before the court, enumerating the issues canvassed and adverting to the law governing the issues has taken such a root in our superior courts that denial of it cannot be regarded as mere procedural irregularity. Just as a party is not compellable to give evidence to prove his case so is a party not compellable to address the court where he has the right so to do. But when the right exists, a party must not be denied that right and denial of the right may render the proceeding a nullity if miscarriage of justice is occasioned.” (Italics mine)

At pages 123-124, Obaseki, JSC stated the beneficial effect of a final address as follows:-

“The hearing of addresses by every court established by the Constitution of the Federal Republic of Nigeria is recognized by the Constitution. It is to be given before judgment is delivered. See section 258(1) of the Constitution of the Federal Republic of Nigeria, 1979. Its beneficial effect and impact on the mind of the Judge is enormous but unquantifiable. The value is immense and its assistance to the Judge in arriving at a just and proper decision, though dependent on the quality of address; cannot be denied. The absence of an address can tilt the balance of the learned Judge’s judgment just as much as the delivery of an address after conclusion of evidence can. It is not for this court to speculate on what the effect of plaintiff’s counsel’s address would have been on the learned trial Judge’s judgment as the Court of Appeal has done. Until the learned trial Judge’s mind is exposed to an address, no one can say what effect it will have on his mind. The fact of denial of opportunity to deliver the address has robbed the learned trial Judge the benefit the address would have had on his mind in arriving at a just decision.”

And in Donatus v. The State (1990) 7 NWLR (Pt. 164) 550 at 569, the Supreme Court per Akpata, JSC said:

“A good address may provide a judge a clear mental opinion to perceive either the tenuousness in what had appeared impregnable or to see through the veneer and discover the hard core of a party’s case.”

In the instant case, a final address by counsel for the defendant/appellant would, most probably, have been of immense benefit to the learned trial Judge having regard to the character of evidence before the court. The learned trial Judge was patently so obsessed by what he considered to be the quality and strength of the plaintiff’s case, that he accepted his case and made findings in respect thereof even before he considered the case of the defendant/appellant. What appeared to be the most material witness for the plaintiff was the 2nd P.W. Chief Lasisi Ladoja Lakunle who was said to be the sole legal adviser of the Okere of Saki between 1972 and 1980 and who prepared exhibit “B” which, according to him, was also witnessed by the Okere of Saki’s Secretary at that time. The totality of the evidence shows that the said Secretary was the 3rd D.W. Alhaji Amusa Sanusi whose testimony was, in my consideration, very crucial in determining the controversy between the parties. The substance of his evidence was that although he signed exhibit “B” in which land was given to the plaintiff, the land in dispute was given to the defendant in January 1974. His evidence also showed that the Okere of Saki did the allocation of land to his subjects through land agents who carried out the physical allocation and that there were two such agents at that time. He identified the two agents as Alhaji Dauda Saki and Amisat who were the 1st D.W. and 2nd D.W. respectively. Each of them testified to the effect that the land in dispute was allocated to the defendant/appellant. It is significant to note that none of them was cross-examined by counsel to the plaintiff/respondent. In my view, their evidence was equally material.

In the light of this state of the evidence for the defence, an address by counsel for the defence would probably have tilted the balance in another direction. I have no doubt in my mind that the failure by the learned trial Judge to give opportunity for the defendant’s right of final address under section 294(1) of the Constitution occasioned some miscarriage of justice.

On the whole, I am persuaded by the complaint of the appellant that the proceedings of the 18th of July, 1994 occasioned a breach of his right of fair hearing. In the determination of an allegation of denial of fair hearing as in this case, the complainant need not even establish that the proceedings complained of did in fact work to his prejudice. The very possibility of some miscarriage of justice is enough to vitiate the proceedings. See Olatunbosun v. N.I.S.E.R. Council (1988) 3 NWLR (Pt. 80) 25. I have no doubt in my mind that both in the consideration of the application for adjournment and the conduct of the proceedings after the refusal of the adjournment, the trial court ran foul of the appellant’s constitutional right of fair hearing.

In conclusion, I hold that there is substance in the appeal which is hereby allowed. The proceedings of the 18th of July, 1994 rendered the entire proceedings in the suit null and void and same including the judgment of the 28th of July, 1994 is set aside. And the suit be and hereby remitted back to the Saki Judicial Division of the High Court of Oyo State for retrial. I assess the costs of this appeal at N5, 000.00 sin favour of the appellant.

Other Citations: (2005)LCN/1738(CA)