Arc. Oluchukwu Odega V. MR. Augustine Olloh (2015)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HELEN MORONKEJI OGUNWUMIJU, J.C.A.(Delivering the Leading Judgment)

This is an appeal against the Judgment of the High Court of Delta State delivered by Hon. Justice T. C. Makwe, on the 05/03/13 wherein the learned trial Judge granted the claims of the Respondent as he found same to be meritorious. The following are the facts that led to this appeal:

The Respondent as Plaintiff commenced the action by issuing a writ of summons filed on the 29/03/11 against the Appellants. In the Statement of Claim filed on 29/03/11 he asked for the following reliefs:

1. AN ORDER THAT THE CLAIMANT IS THE PERSON ENTITLED TO STATUTORY RIGHT OF OCCUPANCY OVER THE PIECE OR PARCEL OF LAND MEASURING APPROXIMATELY 1.871 HECTARES LYING, BEING AND SITUATE ALONG PRINCE IKECHUKWU IYEKE WAY, BEHIND GOLF COURSE, UMUDAIKE FAMILY LAND ASABA OSHIMILI SOUTH LOCAL GOVERNMENT AREA, ASABA, DELTA STATE.
2. AN ORDER THAT THE DEFENDANT’S CLAIM OF POSSESSION AND OWNERSHIP OVER THE SAID PARCEL OF LAND IS NULL, VOID AND OF NO EFFECT WHATSOEVER.
3. AN ORDER OF PERPETUAL INJUNCTION RESTRAINING THE DEFENDANTS, HIS PRIVIES AND AGENTS FROM HIS/THEIR TRESPASS UNTO THE PARCEL OF LAND AFORESAID.
4. N100,000,000.00 (ONE HUNDRED MILLION NAIRA ONLY) BEING GENERAL DAMAGES AGAINST THE DEFENDANT AS A RESULT OF HIS TRESPASSORY ACTS/INJURIES OCCASIONED ON THE SAID LAND.
5. N25,000,000.00 (TWENTY FIVE MILLION) BEING COST OF RECONSTRUCTION OF ANOTHER WALL FENCE ROUND THE SAID PARCEL OF LAND.

The Statement of Defence was filed on 14/11/11 deemed filed on 24/11/11. At the Pre-Trial Conference on 22/03/12 both parties and Counsel agreed to adjourn the case to 23/04/12 for report of settlement.

On the 23/04/12 the Counsel for the Appellant informed the Court that settlement between the parties had broken down and the case was subsequently adjourned to 31/05/12 for Hearing. On the 5/3/13 after an adjournment on the request of the Appellant’s Counsel, the Trial Court granted accelerated hearing of the suit, admitted written and oral evidence from the Respondent and gave leave to the Respondent to deliver his final address and summarily delivered the Judgment.

The Appellant not satisfied with that decision has appealed to this Court. The Appellant filed a Notice of Appeal on the 06/03/13. The Appellant’s brief of argument is dated 18/09/13 filed 19/09/13. The Respondent’ brief of argument is dated 30/9/13 filed 02/10/13.

In the brief settled by Chike Onyemenam now SAN, the Appellants raised one issue for determination:

WHETHER THE LEARNED TRIAL JUDGE’S HEARING AND DELIVERY OF FINAL JUDGMENT IN THE SUBSTANTIVE SUIT IN THE ABSENCE OF THE APPELLANT AND HIS COUNSEL WAS IN VIOLATION OF THE APPELLANT’S CONSTITUTIONAL RIGHT TO A FAIR HEARING, THUS OCCASIONING A GRAVE MISCARRIAGE OF JUSTICE ON THE APPELLANT.

It is noteworthy to state here that the Respondent’s brief settled by Chief James O. Offor had an introduction and statement of facts without distilling any issue. It is very peculiar process indeed. Arguments were not formally canvassed in the brief but some form of argument was proffered on the Issue identified by Appellant’s counsel.

There is no doubt that Respondent’s brief is in violation of Order 18 R 3 (3) and Order 18 (4)(2) for not submitting an issue for determination. However, it is my humble view that notwithstanding this shortcoming and the inelegance of the brief, it is expedient in the interest of justice to also consider it in the determination of this appeal.

SOLE ISSUE

WHETHER THE LEARNED TRIAL JUDGE’S HEARING AND DELIVERY OF FINAL JUDGMENT IN THE SUBSTANTIVE SUIT IN THE ABSENCE OF THE APPELLANT AND HIS COUNSEL WAS IN VIOLATION OF THE APPELLANT’S CONSTITUTIONAL RIGHT TO A FAIR HEARING, THUS OCCASIONING A GRAVE MISCARRIAGE OF JUSTICE ON THE APPELLANT.

On this sole issue, the Appellant’s counsel argued that hearing and delivery of final judgment in a land case by the Trial court against the Appellant in one sitting in the absence of the Appellant occasioned a grave miscarriage of justice. He argued that Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides that a court shall be constituted in such a way as to secure its independence and impartiality and guarantees every citizen’s right of fair hearing.

Counsel submitted that the Appellant applied to the trial Judge to disqualify himself from hearing the substantive case on the ground that he would not likely get a fair trial since the learned trial Judge had concluded at pre hearing session that the Appellant that he was not the rightful owner of the land and suggested that the Appellant pay N3,000,000.00 (Three Million Naira) to the Respondent. The Appellant filed motion on 3/10/12 urging the Court to disqualify itself. The motion was refused. The Appellant filed notice of appeal to this court on 3/12/12. Appellant also applied to the trial court for a stay of further proceedings.