Augustus A. Ndukaba V. Chief Silas M. Kolomo (2005)
LAWGLOBAL HUB Lead Judgment Report
A. OGUNTADE, JSC
This appeal is another reminder of the old abandoned property conundrum from Rivers State. Augustus A. Ndukauba, now deceased commenced an action in 1988 against the respondents in this appeal claiming for:
(i) A declaration that the plaintiff is the person entitled to the control, management and enjoyment of the property known as Plot 138, Gborokiri (Borokiri) Layout (8 Etche Street) Port-Harcourt until the determination of the building lease in respect of the said plot.
(ii) A perpetual injunction restraining the defendants, their servants and/or agents from interfering with plaintiffs control, management and enjoyment of the said plot until the determination of the lease of the property.
In the course of proceedings before the Port-Harcourt High Court of Rivers State, the plaintiff Augustus A. Ndukauba died and his son, the present appellant was substituted for him. The parties later filed, and exchanged pleadings after which the case proceeded to hearing before Tabai J. (as he then was).
At the conclusion of hearing, the trial court in its judgment on 21/6/93 dismissed the appellant’s suit on the ground that “he has not shown any interest or locus standi to sue.”
Dissatisfied, the appellant brought an appeal before the Court of Appeal, Port-Harcourt (Coram: Ogebe, Pats-Acholonu and Ikongbeh JJ.CA). The said court in a unanimous judgment affirmed the judgment of the trial court and dismissed the appeal. The appellant has brought a further appeal before this court on five grounds of appeal. The issues distilled for determination in this appeal from the five grounds of appeal are these:
“(I). Whether the procedure whereby a substantial part of the defence up to judgment on the merits in the case was conducted in the absence of the plaintiff/appellant or counsel on his behalf, infringed the Rules of fair hearing.
(II) Whether the power of attorney (Exhibit B) in this case is a document that requires the consent of the Governor in a transaction affecting land.
(III) Whether the power created under the irrevocable power of attorney (Exhibit B) executed in favour of appellant’s late father survived the plaintiffs late father for the benefit of the plaintiff/appellant by inheritance.
(IV) Was the Court of Appeal right in upholding the judgment of the trial court ordering a dismissal of the plaintiff/appellant’s case instead of striking it out.
The 1st respondent filed a brief but the 2nd respondent did not. In the 1st respondent’s brief three issues were formulated as arising for determination in the appeal. Because the decision in this appeal turns only on the procedural point agitated in appellant’s first issue, it suffices here for me to observe that the 1st respondent’s first issue for determination is similar in substance to the appellant’s first issue.
The facts relevant to the solitary issue to be considered are these: The appellant, who as I observed earlier was the plaintiff before the trial court testified in support of his case as P.W.1 and was cross-examined by each of the defence counsel for 1st and 2nd respondents. The appellant after his testimony closed his case, which was then adjourned to 16/12/91. On the next date the 1st respondent testified and was cross-examined by appellant’s counsel. Between the 2nd March, 1992 and 15th March 1993, the case suffered about eight adjournments. When the case next came up on 22/4/92, the minutes of proceedings for that day read:
“Plaintiff absent
1st defendant present.
S.J. Ofoluwa for the plaintiff
C.A. Egi for the 1st defendant.
Mr. Ofoluwa for the plaintiff informs me that for a long time he has not seen his client the plaintiff nor any of his relations. He said that since the case is also fixed for the 28/4/92, he applies that the matter be adjourned till that day so that if he does not see the plaintiff before then he would apply to withdraw.
Application granted.
Adjourned to the 28/4/93 for mention.”
On 28/4/93, the plaintiff was again absent. The record of court as to what counsel who appeared for him said reads:
“Plaintiff counsel says he has not seen the plaintiff for a long time. Nor has he seen any of his relations. He said that in the circumstances, he cannot continue to appear to prosecute a claim whose plaintiff does not come to court. He therefore, asks for leave to withdraw from the case.
Application is granted.
Case stood down.”
The propriety of counsel applying to withdraw from a civil case in which as plaintiffs counsel he had prepared pleadings and led plaintiffs only witness in evidence is not an issue before me in this appeal. Neither is the correctness of the order of the trial court allowing counsel to withdraw. I refrain from saying anything further on both.
Now, there were no ‘minutes on the’ record of the court on 28/4/93 as to the next date of hearing. However, the case came up the following day, that is, 29/4/94. The 2nd witness for the defence testified as D.W.2. The case was later adjourned to enable the 1st respondent’s counsel file a written final address. This was filed on 19/5/93. On the 21/6/93, the trial judge delivered judgment in the terms earlier stated.
In the appeal before the Court of Appeal, the appellant did not raise the question of fair hearing as he has now done before us. This Court has however elected to consider the point because the denial of fair hearing is considered a serious matter justifying a departure from the established procedural rule that a matter not agitated before the court below could not be raised before this Court. See Saliu V. Egeibon [1994] 6 NWLR (Pt. 348) 23 at 49 and Sokefun V. Akinyemi [1980] 5-7 S.C.1. We do this however because all the relevant facts are before us and the parties have in their briefs extensively dealt with the issue.
The relevant facts were undisputed. Appellant’s counsel has argued before us that the proper course open to the trial court was to have adjourned the case and to order that a fresh hearing notice be served on the appellant or at the worst strike out or dismiss the suit for want of prosecution. Counsel relied on Mohammed Ndejiko Mohammed & 4 Ors V. Hussein & Anor. [1998] 14 NWLR (Pt. 584) 108; Saudu V. Mohamed [1998] 2 NWLR (Pt. 536) 130; counsel further argued that it was a denial of the appellant’s right to fair hearing as enshrined in the Nigerian Constitution for the trial court to proceed with the hearing of the case to conclusion without any notice being given to the appellant: Salu V. Egeibon [1994] 6NWLR (Pt.348,.) 23 and Ebak Iron V. Irek Okimba [1998] 2 SCNJ 1 at 5.
The 1st respondent’s argued that fair hearing meant no more than a hearing which was fair to both parties: Ndu V. State [1990] 7 NWLR (Pt. 164) 550. He submitted that a party who failed to avail himself of the opportunity afforded him to defend or prosecute his claim in court could not complain of a denial of his right to fair hearing – Ekerebe V. Efeizomor [1993] 7 NWLR (Pt. 307) 588.
Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 provides:
“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 clear elements of section 36(1) above are:
There must be a fair hearing.
The court or tribunal must be one established by Law.
The adjudicatory process must be conducted within a reasonable time.
The adjudicators must be independent and impartial.
The aspect of the above elements under consideration in this appeal relates to the fairness of the hearing before the court of trial. The question is: was the appellant’s right to a fair hearing of his suit compromised in the proceedings before the trial court? In Otapo V. Sunmonu [1987] 2 NWLR (Pt. 58) 587 at 605, this court per Obaseki JSC considered the nature of this concept of fair hearing thus:
“A hearing can only be fair when all parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused a hearing or not given an opportunity to be heard, the hearing cannot qualify as a fair hearing
……….Without fair hearing, the principles of natural justice are abandoned; and without the guiding principles of natural justice, the concept of the Rule of Law cannot be established and grow in the society. As aptly stated by Nnamani JSC in Ex Parte Olakunrin (1985)1 NWLR 652 at 668.
The principles of natural justice are part of the pillars that support the concept of Rule of Law. They are an indispensable part of the process of adjudication in any civilized society. The twin pillars on which they are built are – the, principles that one must be heard in his own defence before being condemned and that, put shortly, no one should be a judge in his own cause.”
In a civil case the principle of fair hearing in relation to a plaintiff translates into these:
A plaintiff (or any party) is entitled to counsel of his choice.
A plaintiff must be afforded the opportunity to call all necessary witnesses in support of his case.
A plaintiff by himself or counsel must have the opportunity to cross-examine or otherwise challenge the evidence of witnesses called by his adversary.
At the close of the case and in accordance with the relevant court rules, a plaintiff must have the same right as given to his adversary to offer by his counsel the final address on the law in support of his case.
In the instant case, the counsel retained by the appellant decided to withdraw further appearance for the appellant in the middle of the case and this was done without any notice or information to the appellant. The result was that the evidence given by D.W.2 in support of the respondents’ case went unchallenged since D.W.2 was not cross-examined. Further, whereas the counsel for 1st respondent filed a final address, which presumably the trial court would have read, the same opportunity was not available to the appellant. It seems to me in the circumstances that the appellant was not enabled to fully ventilate his case. With respect to the trial judge, I think he was mistaken not to have directed that a fresh hearing notice be served on the appellant when his counsel withdrew from the case. Had this been done, appellant would have been enabled to engage a new counsel or straighten his relationship with his old counsel or appear by himself. Appellant might even have decided to do the cross-examination of D.W.2 himself.
1st respondent’s counsel argued in his brief that the important thing was for a party to be afforded the opportunity to defend or prosecute the claim and that a party who does not utilise the opportunity could not complain of denial of fair hearing. That submission is sound in principle. But when related to the facts in this case it becomes unhelpful. This is because the appellant could not have known that the counsel he retained would withdraw; he had given evidence and it was for counsel to continue. Further, there is no rule of law or practice to the effect that a plaintiff must be physically present in court to prosecute his claim. All that he needs do is to call witnesses in proof of his case. The withdrawal of further appearance by counsel was not one the appellant could have reasonably envisaged. It was the trial court, which gave appellant’s, counsel the permission to withdraw; and the same court should have brought the development to the notice of the appellant.
It is also no argument of wisdom to say that the judgment of the trial court would have been the same even if the appellant had fully participated. The denial of fair hearing to a party is often fatal to the judgment of the court. In Salu V. Egeibon [1994] 6 NWLR (Pt. 348) 23 at 44, this Court per Wali JSC observed:
“It has also to be remembered that the denial of fair hearing was a breach of one of the rule of natural justice, that is, the requirement that a party must be given a fair hearing. The consequence of a breach of the rule of natural justice of fair hearing is that the proceedings in the case are null and void. See Adigun V. Attorney-General of Oyo State [1987] 1 NWLR (Pt. 53) 678. If a principle of natural justice is violated, it does not matter whether if the proper thing had been done, the decision would have been the same; the proceedings will still be null and void. In other words, if the principles of natural justice are violated in respect of any decision, it is immaterial whether the same decision would have been arrived at in the absence of the departure from the essential principles of justice. The decision must be declared to be no decision.”
The result is that the decision of the trial court and the court below confirming that decision must be set aside. This case must be heard de novo. The decision reached on the 1st issue for determination has rendered it unnecessary to consider the other issues.
The appeal is allowed with N10,000.00 costs against the respondents. Suit is to be tried de novo.
SC. 237/2000