Mr. Ekere Mandu Ukpong V. Mr. Effiong Simeon Esopndem & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ONYEKACHI A. OTISI, J.C.A. (Delivering the Leading Judgment)

This is an appeal against the judgment of the High Court of Akwa Ibom State, Etinan Judicial Division delivered on 29th June, 2010.

In summary, the facts leading to this appeal are as follows: The Appellant, who was the 3rd Respondent in the lower court, is landlord of the property known as and called No 23 Umo Etukudo Street, Etinan. The property was occupied by tenants, which included the 1st Respondent who was the Applicant in the lower court. The Appellant had, sometime in 2008, been issued with a ‘Notice to Abate a Nuisance’ by the public Health Authority, Etinan as a result of a leaky roof in the property.

When the Appellant embarked on repairs of the property, the roof over the 1st Respondent’s apartment was removed. There was rainfall on the material date, as a result household items of the 1st Respondent were destroyed. The 1st Respondent lodged a complaint against the Appellant for malicious damage to property before the Divisional Police Office in Etinan. As a result, the Appellant alleged he and his workers were detained and tortured; and, sums of monies were extorted from him. The Appellant, aggrieved, petitioned the Divisional Police Officer (DPO), Etinan.

When the DPO failed to take any action, the Appellant further petitioned the Commissioner of Police for the transfer of the 1st Respondent’s original complaint alongside his petition to the state police Headquarters, Ikot Akpan Abia from Etinan Police Division. The 1st Respondent was thereafter arrested and detained by the 3rd Respondent and denied bail. The 1st Respondent thereupon instituted an action against the 2nd and 3rd Respondents, and, the Appellant alleging an infringement of his fundamental rights.

The 2nd and 3rd Respondents did not react to the suit but the Appellant filed a counter affidavit. The 1st Respondent’s Counsel addressed court. The matter was adjourned to various dates including 27/4/2010 for reply of Appellant’s counsel but he failed to do so. The lower court delivered judgment on 29/6/2010.

The Appellant, dissatisfied with the said judgment has appealed.

In the Amended Notice and Grounds of Appeal filed on 27/2/2012, the Appellant raised two Grounds of Appeal; and, sought on Order, setting aside the said judgment of the lower court delivered on 29/6/2010.

The Appellant’s Brief of Argument, settled by Ekpenyong M. Ekpenyong, Esq. of counsel, was filed on 27/2/12, and, deemed properly filed and served on 11/6/2012. 1st Respondent’s Brief was filed by Dasil Akpan, Esq. of counsel on 30/10/2012, deemed properly filed and served on 29/11/2012. The Appellant filed a Reply Brief on 4/4/2013, which was deemed on 30/10/2013. These Briefs were adopted by respective Counsel on 30/10/2013.

The 2nd and 3rd Respondents filed no Briefs and did not appear. Hearing Notice was served on them on 24/4/2013 through their counsel but they did not appear.

In the Appellants’ Brief, a sole issue has been distilled for determination from the two grounds of Appeal as follows:

Whether there was fairness of trial when the lower court failed to consider the 3rd Respondents counsel’s both letter of adjournment dated 26/4/2010 and the written address dated 22/6/2010.

It is submitted that fair hearing is a Constitutional requirement provided in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria, as amended. That it is a breach of the principle of fair hearing for a trial Judge to adjourn for judgment when the parties before him were yet to conclude their cases. Relying on Echie Cyril Abuguja vs. Chief Charles Ezechukwu Azifuaka (2008) ALL FWLR (PT 411) 1004, it is submitted that the judgment delivered in such a circumstance is a nullity.

That fair hearing is the impression of a reasonable man of whether a trial is fair as borne out by the record of proceedings; relying on Ukpe vs. State (2002) FWLR (PT 103) 416 at 447, Ajisefinni vs. D.P.P. (2002) FWLR (PT 122) 88 at 102; Okofor vs. Uchebo (2002) FWLR (PT 122) 188 at 196-197: Ogolo vs. Fubara (2003) FWLR (PT 169) 1285 at 1312.