Forcados Ovo Obodo V. Stafford Olomu & Anor. (1987)

LawGlobal-Hub Lead Judgment Report

BELGORE, J.S.C.

After hearing all the evidence by the parties in the trial Court of Warri in the High court of Bendel State, Eluaka, J., without being addressed by the counsel to the parties, wrote as follows:-

“Court: Parties will send their address (sic) to me in writing;

Order: Adjourned 2nd August 1983 for judgment.

(Sgd.) M. C. Eluaka

Judge

1/7/83”

The judgment was delivered on 14th September,1983 within three months of the conclusion of evidence at the trial. Learned counsel for the defendants, the respondents before Court of Appeal and also before this Court, filed in the trial Court on an unknown date what is headed a “WRITTEN ADDRESS SUBMITTED BY COUNSEL IN SUPPORT OF DEFENDANTS’ CASE.” This document was not served on the Plaintiff/Appellant or on his counsel. As it is undated one would only know that it was filed before judgment was written as learned trial Judge seemed to rely heavily on it. The appellant filed no address in Court. The Trial Judge reviewed the evidence before him and then got to his findings on the evidence by saying:

“When the case was concluded, parties were asked to send their written address to me; only counsel for the defendant sent a written address. The counsel referred to the claim. He referred to the witnesses called for the plaintiff and remarked that Mr. M.N. Chukwurah was the same surveyor who surveyed the land for the 1st Defendant and also for the Plaintiff’s piece of land. This was admitted as Exhibit B … etc.”

Learned trial Judge dwelt at great length on the written address by the defendants and in the absence of a written address by the Plaintiff he relied heavily on what the defendants’ written address had submitted on the facts and law governing the case. Six pages of the judgment reviewed the evidence, four pages dealt with findings based on the address submitted to Court by the defendants’ counsel. He finally held as follows:

“I think I have carefully considered the evidence led in this case and I have also gone through the submissions by counsel for the defendants. The facts of the case have (sic) been well summarized by him and I am in agreement with points of law raised therein. It is unfortunate that the Plaintiff have (sic) not shown evidence that he was in possession of this area in dispute except attempted possession which was immediately disturbed which gave rise to this action. It is trite law that in an action for trespass, the plaintiff must show that he is in possession and his possession was disturbed. If he is not in possession no action in trespass will lie. Also there has not been evidence of ownership of the land because according to plaintiff when he made an agreement for a sale of land this agreement could not be registered because by then the Land Use Decree has set in so the persons who gave the land to him cannot be said to own the land in view of Section I of Land Use Act. It will not be possible for the plaintiff and the people who gave the land to him to now assume ownership of the land in dispute.”

The plaintiff appealed to Court of Appeal and among the many grounds of appeal was ground 4 which reads as follows:-

“The Learned Trial Judge erred in law when he proceeded to give judgment solely on the written address sent to him by the Defence Counsel praying the Court to dismiss the Plaintiffs Claim without giving the Appellant or his Counsel opportunity of a reply.

PARTICULARS OF ERRORS

(a) The learned Trial Judge having failed to give the Plaintiff Counsel’s opportunity of a reply to the written address of the Counsel for the Defendants, the trial ceased to be fair within the provisions of S.33 of the Constitution of the Federal Republic of Nigeria, 1979..

(b) The Defendants having given evidence and called witnesses have the prior right to address the court and the Plaintiff is entitled to reply to the Defendants’ address, but the Learned Trial Judge acted on the written address of the Defendants which address was not served on the Plaintiff or

his Counsel.

(c) The Learned trial Judge having held inter alia as follows:”

The fact of the case have been well summarised by him (meaning the Defendant’s Counsel) and I must say I

am in agreement with the points of law raised therein” ought in the interest of Justice to have ordered that the written address of Defence be served on the Plaintiff or his Counsel to afford Him the opportunity of a reply.”

The Court of Appeal (Ete, J .C.A. and Babalakin, J .C.A; with Pepple, J.C.A. dissenting), dismissed the appeal on all grounds, holding that the trial Court considered the credibility of all witnesses who testified before it and came to the conclusion reached in the case; and as for Ground 4 the Court was of the view that since the appellant and his counsel were present when the trial Court ordered “written address” to be submitted and he submitted none, he was bound by the address of the respondents. For, according to the Court of Appeal, the plaintiff by neglecting to send written address to the Court “deprived himself of the opportunity of seeing his address. He is the person at fault.” The Court held the lapse in not having the address of the plaintiff before the Court as mere procedural irregularity and not substantial enough to disturb the decision of the trial Court and relied on Alhaji Ahmadu v. Alhaji Salawu, (1974) 11 S.C. 43, 49. It further held that even “without the address by both parties the decision arrived at by the learned trial Judge would not have been different”

In the appeal before this Court, there are three Grounds, two of which are based mainly on error in law concerning the failure to consider the absence of an address by the plaintiff at the conclusion of the case in Trial Court and the attitude of the Court of Appeal to that failure. For clarity I reproduce hereunder Grounds 1 and 2:

“GROUNDS OF APPEAL:

1. The Learned Justices of the Court of Appeal erred in law or misdirected themselves in law when they upheld the procedure adopted by the learned trial Judge whereby the said learned trial Judge based his judgment solely on the written address sent to him by Defendants/Respondents Counsel, without given the Plaintiff/Appellant or his Counsel opportunity to be heard in reply.

Particulars of Error or Misdirection:

(a) The learned trial Judge’s directive to Counsel to send written address to him is a violation of Order 26 Rule 17 of the High Court (Civil Procedure) Rules, Cap. 65, Laws of Bendel State of Nigeria, 1976.

(b) The Learned Justices of the Court of Appeal erred in law or misdirected themselves in law, when they upheld the decision of the trial Judge which violated the provisions of Order 26 Rule 17 of the High Court (Civil Procedure) Rules, 1976, Cap 65, Laws of Bendel State and thereby failed to hold that the trial ceased to be fair within Section 33 of the Constitution of the Federal Republic of Nigeria 1979.

(c) The Learned Justices of the Court of Appeal erred in law or misdirected themselves on the evidence, when they came to the conclusion that Plaintiff/Appellants’ Counsel disobeyed the order of the learned trial Judge when he failed to send a written address to Court, when there was no address for him to reply to in accordance with Order 26 Rule 17 of the High Court (Civil Procedure) Rules, Laws of Bendel State of Nigeria, 1976.

2. The Learned Justices of the Court of Appeal erred in law or misdirected themselves in law when they held “without the address by both parties the decision arrived at by the learned trial Judge would not have been different”

(a) The Learned Trial Judge did not make findings of facts of his own apart from facts summarised in the address of the defence counsel.

(b) He did not decide which of the two contesting parties and their landlords have a better right to possession that is to a statutory customary right of occupancy to the land in dispute.”

High Court (Civil Procedure) Rules, Cap. 65 Laws of Bendel State 1976 Order 26 Part III lays down the procedure to be followed at the hearing of a case. For example, the party upon whom the burden of proof lies shall produce his evidence – Order 26 Rule 12; when the party beginning has concluded his evidence and the other party is not calling evidence he shall sum up the evidence already given; Order 26 Rule 13. When the party beginning has concluded his case, the other party shall be at liberty to state his case and to call evidence, and to sum up and comment thereon – Order 26 Rule 15. If no evidence is called by the other party the party beginning shall have no right of reply and the case for both parties shall then be considered as closed Order 26 Rules 15and 16. But Order 26 Rule 17 relevant to the parties in this case reads as follows:

“17. If the party opposed to the party beginning calls or leads evidence, the party beginning shall be at liberty to reply severally on the whole case, or he may, by leave of the Court, call fresh evidence in reply to the evidence given on the other side, on points material to the determination of the issues, or any of them, but not on collateral matters.”

The trial Judge asked each party to produce written address at the close of evidence of the defendants. In usual practice such address is done orally before the Court. The terms used in the Rules of Court are “sum up”, “reply” but in practice these are called “address”.

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.

Perhaps, for the convenience of the Court, such addresses may be in writing as the rules of Court are not clear about this, but it must be in accordance with rules whereby a party is not denied by implication of the right to address. The addresses, I hold, are not directed at the Court alone. The purport of the address by a party is to let the Court and his adversary know what his summing up is on the facts and the law as revealed by the evidence before the Court.

Therefore it is a wrong supposition for a trial Court to believe that an address at the close of a party’s case is meant for it alone; the other side, throughout the trial of a case must not be blinded from what his adversary relies upon. In this case, the defendants, who were to start addressing the Court, filed an address. The address is undated and not served on the other side i.e. the plaintiff. This is unjust. The plaintiff was being blinded against the address of the defendants. The Court of Appeal adverted only to failure of plaintiff to submit a written address and held that the plaintiff was to blame for this failure.

Had the Court adverted to the principle that the address was not meant for the Court alone but also for the other side, it would have discovered fundamental error in the trial Judge’s approach. No date was given for the addresses to be submitted, no order was made for service of Defendants’ address on the plaintiff and when the plaintiff was to file his reply address. The importance of addresses is shown by S.258(1) of the Constitution of the Federal Republic of Nigeria 1979:

“258(1) Every Court established under this Constitution shall deliver its decision in writing not later than 3 months after the conclusion of evidence and final addresses… The trial Judge was in error in the manner he ordered for the written addresses. He was wrong in deciding the case virtually on the written address of the defendants’ counsel which was not served on the plaintiff or his counsel to afford him the opportunity of writing his own address. Is it not after final addresses on the evidence that time starts to run to deliver judgment The Court of Appeal fell into the same pitfall and erred further by speculating in holding that

“without the addresses by both parties the decision arrived at by the learned trial Judge would not have been different.”

The hearing of a case, under our system, is that every party must not only be heard but also must be afforded the opportunity of being heard. Without the opportunity of one side being heard, there can be no facts for the court to fully assess as in Mogaji v. Odofin, (1978) 4 S.C. 91. Addresses form part of the case and failure to hear the address of one party, however overwhelming the evidence seems to be on one side, vitiates the trial; because in many cases, it is after the addresses that one finds the law on the issues fought not in favour of the evidence adduced. Order 26 Rule 17 is mandatory and as the appellant was not aware of what was contained in the defendants’ address and the judgment of the trial Court was based almost solely on that address, there is a miscarriage of justice which was not mitigated by the approach of Court of Appeal to the issue.

By holding that the decision could not have been different if all addresses were before the Trial Court, the Court of Appeal was attempting to read the mind of the trial Judge. He heard the evidence and saw the witnesses, the addresses might have thrown a new light on his view on the evidence. For the totality of a case heard entails not only the evidence but also the addresses. A party entitled to address the Court may waive that right but it must be shown that he has so waived his right. Time would have been saved if the conventional practice was adhered to whereby oral addresses are made. The most important requirement is that the other party must know what the address is all about. In a written address, the Court must make sure that the parties exchanged addresses. It is by making clear order as to the time of filing, service on the other side and so forth, that the Court would be certain that both parties would have opportunity of addressing. Perhaps it is better to adhere to tried and tested practice of oral addresses.

It is for the reasons given above that I allowed the appeal on 10th day of March 1987 and set aside the majority judgment of the Court of Appeal, upholding trial Court’s judgment and upheld the minority judgment of Court of Appeal by Pepple, J.C.A., dated 7th March, 1985 and that the case be remitted to the High Court of Bendel State, Warri Judicial Division for retrial with N300.00 costs to the respondents.

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SC.204/1985