Godwin Ekiyor & Anor V. Chief Frukama Bomor (1997)
LAWGLOBAL HUB Lead Judgment Report
E. OGUNDARE, J.S.C
The plaintiff who is respondent in this appeal, had sued the defendants, now appellants, in the Warri Judicial Division of the former Bendel State, claiming N200,000 general damages for trespass, nuisance and injunction. Pleadings were ordered, filed and exchanged. Evidence was led at the trial by both sides. In the course of the evidence of the 3rd defence witness, objection was taken by learned counsel for the plaintiff to the line of evidence.
After learned counsel for the parties had addressed the court on the objection, the learned trial judge in a ruling upheld the objection and expunged the evidence of the witness from the record. Thereupon learned counsel for the defendants applied for an adjournment. The application on being opposed by counsel for the plaintiff, was refused by the learned trial judge who directed that “the defendants should go on with their case”. I quote below what followed next:
“Mr. Scott-Emuakpor: At this stage the defendants cannot go on with their case as directed by the Court.
Court: The case of the defendants is hereby closed. Counsel should address me. The case has lingered for too long.
Mr. Scott-Emuakpor: I have no address to offer. Mr. Okpoko addresses:”
Upon conclusion of Mr. Okpoko’ s address, the trial judge reserved judgment.
In the meantime, the defendants filed a notice of appeal to the Court of Appeal against the ruling of the learned trial Judge on the objection taken to the evidence of D.W.3 and refusal of adjournment. They at the same time applied by way of motion for a stay of proceedings in the suit pending appeal. The application for stay was refused on 26/9/85 and, on the same date, the learned trial Judge delivered his judgment in the case wherein he found for the plaintiff and awarded him N75,000, damages and an injunction. The defendants appealed against this judgment to the Court of Appeal on 30/9/85 incorporating in their grounds of appeal complaints against the conduct of the case as a whole in the trial court.
Defendants’ two appeals were entered in the Court of Appeal as Appeals Nos. CA/B/199/85 and CA/B/301/87. On the defendants not filing their written brief of argument the plaintiff on 29/6/88 applied to the Court of Appeal for an order dismissing the appeal for want of diligent prosecution. In the affidavit in support of the motion, plaintiff averred:
“1. On the 27th of September, 1985 the appellants/respondents appealed to this Honourable Court against the decision of Uwaifo, J. sitting at High Court 1 Warri in this case.
- The Assistant Registrar of the Warri High Court informed me and I verily believe him that he compiled the records of this appeal and duly notified the parties of the availability of the Records by a Notice dated 22/12/87 with reference No. W/52/80-Tempo/E2.
- Solicitors T.J. Onomigbo Okpoko & Co. informed me and I verily believe them that they received the aforementioned Notice on 5/1/88.
A copy of the registrar’s notice is attached hereto and marked Exh. A.
- Pursuant to this notice, I collected the Records of Appeal on the 15/1/88.
- The Registrar of the Warri High Court also informed me and I verily believe him that on the 18th of January, 1988 the appellants/respondents received through their solicitors the registrar’s notice informing the parties of the availability of the records of appeal for collection. A certified copy of the proof of service is attached hereto and marked Exhibit B.
- That up till 20/6/88 when I made a search at the Registry of the Court of Appeal, Benin City, I discovered that the appellants had failed, refused and or neglected to file their Appellants’ Brief.
- This Honourable Court on the 23/1/86 ordered a stay of execution of the judgment debt of N75,000.00 awarded in my favour by Uwaifo J of the Warri High Court on the 26/9/85.
- The appellants/respondents have not shown interest in prosecuting this appeal and are contended with the stay of execution granted by this Honourable Court.”
A counter-affidavit was filed in the morning of 13/7/88, the day fixed for the hearing of the motion.
Because of the importance of what took place in court that day, to the determination of this appeal I quote hereunder the proceedings for the day:
“Applicant in person.
J.O. Onurhorho (Miss)- for the applicant
G. Ohanideje – for the respondent.
Onurhorho: This is a motion praying for the dismissing the appeal for failing to file brief and want of diligent prosecution. The application is supported by an affidavit of 10 paragraphs. Judgment was given in September, 1985
Records of appeal was ready since December, 1987 and we have since collected our record. The appellant’s have not yet filed their brief. I move the Court to dismiss the appeal.
Ohanideje: I oppose the application.
Court: On what grounds
Ohanideje: I have filed a counter affidavit this morning-we have not collected the record.
Court: It is not before us.
Ohanideje: Nothing to say.
Court: The appellant filed the notice of appeal in the court below on the 27/9/85. The record of appeal was ready for collection since the 22/12/1987. The appellant had done nothing towards the prosecution of the appeal. Learned counsel for the appellant informed this court that they are yet to go and collect the record of appeal. From all indication the appellants are not keen or ready to prosecute the appeal. The appeal is accordingly dismissed with N150 naira costs to the respondent.”
The defendants have now appealed to this court against the order of the court below dismissing their appeal No. CA/B/301/87. It would appear nothing was said about appeal No. CA/B/199/85.
Pursuant to the rules of this court, the parties filed and exchanged their respective briefs of argument. In the appellants’ brief the following 3 questions are formulated, to wit:
- “Is it open to a respondent who finds that an appellant has delayed paying for and collecting his record of appeal to apply to dismiss the appeal for want of diligent prosecution
- Does it not constitute the violation of the principle of fair hearing for a court to accede to a prayer to dismiss an appeal for want of diligent prosecution –
(a) Without considering a counter-affidavit filed, albeit in the morning of the hearing of the Motion, of which the court is aware
(b) When the court knows or ought reasonably to have known that Notice of Motion was served on respondents’ counsel in less than 2 days of the return date
- Does it not amount to a wrong exercise of discretion for a court to accede to a prayer to dismiss an appeal for want of diligent prosecution without bringing to bear upon that discretion the fact that the grounds of appeal are very substantial in nature and ought to be heard on merits
For his part, the plaintiff, in his brief, set down the following 2 questions:
- “Was the Court of Appeal wrong to dismiss this appeal for want of prosecution
- Was the Court of Appeal wrong to hear and determine the motion to dismiss the appeal before it in the way it did”
Question 2 above is identical with defendants’ question 2 and shall be considered first since, if it succeeds, it is sufficient to dispose of the appeal.
At the oral hearing of the appeal the defendants were absent and were not represented by counsel. Pursuant to Order 6 rule 8 (6) the appeal was taken as argued on the briefs. The plaintiff’s counsel relied on his brief and offered no oral arguments.
On question 2, defendants, in their brief of argument, contended that there was a breach of section 33(1) of the Constitution when the court below in deciding to grant plaintiff’s application to dismiss their appeal for want of diligent prosecution, refused to consider their counter-affidavit on the ground that it was not before them as it was filed in the morning of the hearing of the application. It is further contended that once breached, it is irrelevant that the decision made subsequently is correct. Reliance is placed on Alhaji Tukur v. Govt. of Gongola State (1989) SCNJ 1, (1989) 4 NWLR (Pt. 117) 517.
It is contended by the plaintiff that as the defendants were represented in court by counsel who was given a hearing and had the opportunity to argue before the court below any reasons why the appeal should not be dismissed, there was no breach of the fundamental right to fair hearing. Reference is made to paragraphs 4 and 6 of the counter-affidavit and it is argued that no reason was advanced in the counter-affidavit why record of appeal was not collected and that on defendants’ showing, the court below was right in holding that they were not ready to prosecute the appeal. It is further argued that –
“even if the Court of Appeal was wrong in not calling for the counter-affidavit, that error did not occasion a miscarriage of justice which will warrant upsetting the judgment of the court.”
Support for this submission is found in R. Onajobi & Anor. v. Bello Olanipekun & Ors. (1985) 4 SC. (Pt. 2) 156 at 163.
It is not in dispute – and the proceedings for 13/7/88 bear this out – that in ruling on the plaintiff’s motion to dismiss defendants’ appeal, the counter-affidavit filed by them was not considered. The fact of the existence of that counter-affidavit was brought to the notice of the Court by learned counsel for the defendants. The court below at the stage ought either to adjourn the proceedings on terms in order to have the counter-affidavit placed before them for consideration along with the plaintiff’s affidavit evidence before ruling on the motion or call for it that morning and consider it along with the affidavit in support of the motion. As things turned out, the court determined the motion only on plaintiff’s affidavit evidence. There was a breach of the rule of natural justice audi alteram partem and the hearing on the motion cannot be described as fair as enshrined in section 33(1) of the 1979 constitution which 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.”
What is the meaning of “fair hearing” This Court, per Sir Ademola, CJN provided an answer in Mohammed v. Kano Native Authority (1968) 1 All NLR 424, 428-429; (1968) ANLR 411, 413 wherein it was said:
“It has been suggested that a fair hearing does not mean a fair trial. We think a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. We therefore see no difference between the two. The true test of a fair hearing, it was suggested by counsel, is the impression of a reasonable person who was present at the trial whether, from his observation, justice has been done in the case. We feel obliged to agree with this.”
It cannot be seriously contended that, where a court decides a case on the evidence of one of the parties alone while ignoring the evidence for the other side, the hearing is not a fair one. Clearly, the defendants were denied a fair hearing.
It might be, as is argued in plaintiff’s brief, that the counter-affidavit would have made no difference to the decision of the court below. But this is beside the point. The defect complained of is a fundamental one that goes to the root of the whole hearing of the motion. It is fatal to the proceedings and renders same a nullity. And being a nullity, it must be set aside notwithstanding that it might have been well decided – see: Madukolu & Ors. VS. Nkemdilim (1962) 2 SCNLR 341; (1962)1 ANLR (Pt. 4) pages 587-590. I, therefore, resolve question 2 in favour of the defendants. And in view of the conclusion reached, it is unnecessary to consider Question 1.
The net result is that this appeal succeeds and it is allowed by me. I hereby set aside the decision of the court below dismissing the defendants’ appeal together with the order for costs made by it and remit the plaintiff’s motion to the Benin Division of the court below to be heard and determined by another panel of that court.
I make no order as to the costs of this appeal.
E. O. OGWUEGBU, J.S.C: I have had the privilege of a preview of the judgment just read by my learned brother Ogundare, J.S.C. I am in entire agreement with his views on the issues canvassed by the parties and I also allow the appeal.
The plaintiff/respondent brought an application before the Court of Appeal pursuant to Order 6, Rule 10, Court of Appeal (Amendment) Rules, 1984 praying the court for an order:
“Dismissing the appellants’ appeal for want of diligent prosecution.”
It was supported by an affidavit of ten paragraphs. The legal practitioner representing the appellants deposed to a counter affidavit of seven paragraphs which was filed on 13/7/88. The application was heard on the same 13th day of July, 1988 and the learned counsel for the appellants, respondents in the application drew the attention of the court to the fact that he filed a counter-affidavit in opposition to the motion that morning.
The court below peremptorily determined the application and dismissed the appeal without considering the counter-affidavit whose existence had been brought to its attention. This to my mind is a clear breach of the appellants’ right to a fair hearing enshrined in our constitution. The right to be heard is a very fundamental principle of the adversary system of administration of justice in this country. See Nwokoro & Ors. v. Onuma & Ors. (1990) 3 NWLR (Pt. 136) 22. Had the court below considered the counter-affidavit, they might have arrived at the same conclusion. The decision of the Court of Appeal is a nullity.
I therefore allow the appeal and endorse all the orders contained in the lead judgment.