Simon Ezechukwu & Anor V. I. O. C. Onwuka (2016)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
This is an appeal against the judgment of the Court of Appeal, Jos Division, hereinafter referred to as the Court below, delivered on the 7th day of April 2005, affirming the ruling of the Benue State High Court, the trial Court, in motion No.MHC/317M/2000 arising from Suit No.MHC/59/99. The brief facts leading to the appeal are supplied anon.
The respondent Chief I. O. C. Onwuka and one Dr. Odu, on the 12th April 1999, as plaintiffs, took out a writ claiming damages against the appellants and five others who had demolished their property.
The Law firm of Osuman & Co entered appearance for the 1st – 4th defendants vide T. S. Shior Esquire by a memorandum filed on 14th May 1999. S. T. Tume Esquire, a senior state counsel with the Benue State Ministry of Justice, by a memorandum filed on the 17th May 1999, entered appearance for the 5th – 7th defendants.
Hearing notices having been issued by the trial Court, parties were all served on the 6th July 1999. On the hearing date, 16th July 1999, neither the 1st – 4tn defendants nor their counsel appeared in Court. The 5th – 7th defendants,
1 on the other hand, though not in Court, were represented by counsel and subsequently, by leave of Court, filed their statement of defence out of time. They also participated in the trial. Their counsel, J. O. Idikwu Esquire, full cross examined the 1st plaintiff and his four witnesses. The 2nd plaintiff neither appeared at nor participated in the trial which was concluded on the 11th April 2000.
Following application by counsel, the name of the 2nd plaintiff, who did not appear to prove his claim against the defendants, was struck out. Learned plaintiff’s counsel also conceded to the prayers of counsel to the 5th – 7th defendants that their names be struck out since the evidence led in Court had not disclosed any case against them.
On the 17th, two days to the 19th May 2000 to which date the case had earlier been adjourned for judgment by the trial Court the defendants, now appellants, applied to the Court inter-alia, for the arrest of its judgment and leave to file their statement of defence out of time. The reliefs were refused in their entirety.
Aggrieved by the ruling of the trial Court, the two defendants who were eventually found liable for respondent’s claim appealed
2 to the Court below. The appellants have further appealed against the trial Court’s ruling as affirmed by the Court below on an amended notice containing ten grounds.
At the hearing of the appeal, parties through their counsel, adopted and relied on their respective briefs which had earlier been filed and exchanged as their arguments in the appeal.
The eight issues formulated in the appellants’ brief, see pages 6 and 7 thereof, read:-
“3.0 ISSUES FOR DETERMINATION
3.1 ISSUE 1
Whether or not the Court below was right in upholding the trial Court’s decision that appellants were given a fair hearing at the trial Court. This issue is distilled from ground 1, 2 and 3 of the grounds of appeal.
3.2 ISSUE 2
Whether or not the Court below was right in upholding the decision of the trial Court that there was service of Hearing Notice on the appellants, in the light of the conflicting affidavit evidence of the parties. This issue is distilled from (grounds 4, 5, 6 and 7 of the grounds of appeal).
The following subsidiary issues arise under this issue 2: namely
3.2.1(a) Whether or not the Court below was right when it upheld the decision of the trial Court
3resolving the irreconcilable conflicts in the affidavit evidence of the parties without recourse to oral evidence and,
3.2.2.(b) Whether or not from the evidence on record, there was proof of service of Hearing Notice on the appellants before the commencement of the trial of this suit.
3.3. ISSUE 3
Whether or not the Court below was right in upholding the decision of the trial High Court which failed to consider and apply the provisions of Order 37, Rules 1 , 2 , 3 , 4 and 5 of the Benue State High Court (Civil Procedure) Rules, 1988 , at the time the proceedings were conducted before the said trial Court. This issue is distilled from ground 9 of the Grounds of appeal.
3.4 ISSUE 4
Whether or not the Court below was right in relying on Exhibit “R” which was inadmissible evidence, as proof of service. This issue arises from ground 10 of the grounds of appeal.
3.4.1 The Subsidiary issue that arises under issue 4 is whether or not Exhibit “R” (i.e the uncertified photocopy of the purported proof of service of Hearing Notice on the Appellants’ Counsel) was a legally admissible document, if not, was the Court below right in affirming the decision of the trial
4 High Court based on the reliance on the said Exhibit “R”.
3.5 ISSUE 5
Whether in the light of issues 1, 2, 3, and 4 above, the Court of Appeal was right in dismissing the Appellants’ Appeal. This issue is distilled from ground 8 of the grounds of appeal”.
Learned respondent’s counsel adopted the foregoing issues formulated by the appellants as arising for the determination of the appeal.
My lords, consideration of all the foregoing issues on the basis of which parties urge the determination of this appeal is unnecessary. In Roda v. FRN (2015) 1-2, SC (Pt.II) 31 at 51 @ 52 this Court restated the overriding principle pertaining the formulation of issues for determination of appeals thus:-
“It is certainly never the number of issues formulated and argued by the Appellant that guarantees the success of his appeal. Rather, it is the relevance of these issues and the potency of the arguments thereon which put the appellant on a better stead. This explains why appellate Courts persistently frown at proliferation of issues and admonish parties to refrain from the unhelpful exercise, Appellant’s arguments come through more forcefully and with disarming clarity if
5 they are neither repetitive nor verbose… The better approach, therefore, is to formulate a single issue tersely to cover a number of grounds which are governed by the some applicable principles of Law. …. Succinctness remain the overriding indicia”.
See also Ikweki V Ebete (2005) 2 SC (Pt.II) 96; and Adeyemi v. State (2014) 5-6 SC (PT.III) 148 at 171-172.
Appellants’ real grouse in this appeal lies in the perversity they ascribe to the concurrent decisions of the two Courts below which, they contend, had proceeded inspite of the violent conflict and the paucity of facts in the affidavits for and against appellants’ application at the trial Court. Appellants, 1st and 2nd main issues, in the circumstance, adequately provide for the determination of the appeal.
Arguing the appeal, learned appellant’s counsel contends that the Lower Court’s affirmation of the trial Court’s refusal to find merit in their application of 17th May 2000 aimed at facilitating their defence to respondent’s claim constitutes a negation of their constitutionally guaranteed right of fair hearing.
Trial in Suit No.MHC/59/99, it is submitted, was commenced by the respondent on 26th July
6 1999. The case, it is argued, suffered seven adjournments before the trial Court’s judgment delivered on the 19th May 2000. The appellants, who were not served with hearing notice, on becoming aware of the case, filed their application praying the trial Court to allow them, for all the reasons contained in the affidavit in support of their application, defend the suit. The facts in the affidavits of the parties, it is further contended, remain violently in conflict that no same conclusion can draw from them. The concurrent decisions of the two Courts below, learned counsel submits, have no legal basis.
Further, arguing the appeal, learned appellants counsel submits that the Lower Court’s affirmation of the trial Court’s examination of the signatures of appellants’ counsel in Exhibits C and R, and the eventual conclusion that the signature in exhibit C is a forgery cannot simply be right. The exercise cannot, it argued, ground the further finding of effective service of the hearing notice on the appellants by virtue of Exhibit R.
Conflict in the averments of both sides, learned counsel further argues, also rages as to the fact of their being seen in Court at various dates during trial. The failure of the
7 trial Court to call for oral testimony to resolve the conflict, appellants’ counsel submits, remains fatal to the decisions of both Courts as there is nothing on record to show that appellants have had the opportunity of being heard before the trial Court found them liable to the respondent. The affirmation of such a wrong decision by the Lower Court is legally untenable. Learned appellants’ counsel relies on Bakare v. L.S.C.S.C. (1992) 8 NWLR (Pt.262) 641 AT 665 and Mark v. Eke (2004) 5 NWLR (Pt.865) 54 at 80; Admins v. Aladetoyinbo (1995) 7 NWLR (Pt.409) 526 at 536 and First Bank Plc v. May Medical Central Ltd (2000) FWLR (Pt.48) 1343 and urges that the appeal be allowed.
Responding, learned counsel submits that the central issue in the appeal is whether or not the appellants had been served to attend Court or had by any other means become aware of the suit commenced by the respondents against them. From the materials made available to the trial Court, particularly exhibit R, the hearing notice served on 6th July, 1999 on them through their counsel, the fact has been established that appellants had been served. Once served to attend Court at the commencement
8 of trial the appellants, learned respondent’s counsel insists, in the absence of any evidence to the contrary, are deemed to be aware of subsequent hearing dates to which the matter was adjourned. The trial Court’s failure to issue subsequent hearing notices cannot, learned respondent’s counsel further argues, be the basis of allowing the appeal.
Besides, the respondent’s averments that the appellant were in the habit of taunting him at the trial Court as well as at the magistrate Court where the sister case was being heard were merely denied and not controverted in the further affidavits filed by the appellants. Courts, it is argued, must deem as true such uncontroverted averments.
Further arguing the appeal, learned respondent’s counsel concedes that though the authorities cited by appellants’ counsel correctly state the principle on the issue of fair hearing, having been served and given the opportunity of being heard, the cases no longer avail the appellants. Relying on Shell Trustees (Nig) Ltd v. Imani & Sons Ltd (2000) 6 NWLR (Pt.662) 639 AT 660 661 and S.B.N. v. M. P. I. Ent. Ltd (1997) 3 NWLR (Pt.492) 209 at 218, learned counsel urges that
9 the appeal be dismissed on that ground alone.
Appellants’ insistence that the Lower Court’s affirmation of the trial Court’s ruling proceeded inspite of the conflict in the affidavits of contending parties, it is further argued, having not been borne by the record, is unavailing. Both Courts, it is submitted, have correctly shown that there was no conflict in the affidavits of both sides to warrant resort to oral testimony.
Lastly, learned counsel submits, by Section 74 of the Evidence Act , the trial Court is entitled to take judicial notice of documents which form part of its records. The Lower Court’s affirmation of the trial Court’s resort to exhibits R and C the hearing notice served the appellants and the renunciation of same by their counsel respectively, is in order. The findings of both Courts, after comparing the signatures on the two documents, that whereas Exhibit R is an effective proof of service of the hearing notice on appellants’ counsel, Exhibit C the purported renunciation of Exhibit R by the counsel is a forgery, cannot also be faulted. These findings take the bottom off appellants’ case completely. On the whole, learned counsel submits, the
10 appeal being lacking in merit be dismissed.
Now, counsel on both sides are one and correctly too that where there is irreconcilable conflict in the deposition of contesting parties before a Court, the Court must resolve the conflict by calling oral evidence either from the deponents or other witnesses. The Court, in the face of such a persisting conflict, is not allowed to prefer one deposition to the other. Learned respondent counsel cannot be faulted in his further submission that the need to call oral evidence arises only where the conflict in the affidavits are significant and material. The need to call oral evidence, on the authorities, is obviated where the conflict is narrow in which case the Court is in a position to overlook same. In Eboh & Anor v. Oki & Ors (1974) NSCC (Vol.9) 26, this Court restated the principle thus:-
“while a Court, in a given case, may act on affidavit evidence, it would be unsafe to do so where the evidence is strongly contested and where issues of credibility can only be resolved upon the Court’s view of witnesses.”
See also Garba v. University of Maiduguri (1986) 1 NWLR (Pt.18) 550 and Atanda v. Olarewaju
11 (1988) 4 NWLR (Pt.98) 394.
Now, can it be said from the record of this appeal that the decision of the Lower Court is an affirmation of the trial Court’s ruling refusing the appellants leave to defend respondent’s claim inspite of the unresolved conflict in the affidavits of contesting parties Or is it that inspite of the absence of material conflict in the affidavits of both sides there is such paucity of facts to warrant the trial Court’s ruling as affirmed by the Lower Court The two issues for the determination of the appeal encapsulate these questions answers to which shall provide the basis of the resolution of the two issues.
In deciding whether the affidavit evidence of the two sides is still in conflict such that an enduring decision only emerges after the resolution of the conflict through oral evidence or that the evidence of the respondent has been wrongly preferred by the two Courts below, a further re-appraisal of the totality of the affidavit evidence needs to be made. The Lower Court as well as this Court are eminently qualified to further appraise the affidavit evidence which, not being oral, does not put the credibility of the deponents in
12 issue. It is only where the evidence to be re-appraised is oral and the credibility of the witnesses is in issue that the appellant Court, not having seen and assessed the witnesses, is hindered and not as qualified as the trial Court in evaluating the evidence. See Soleh Boneh Overseas (Nig) Ltd v. Ayodele (1989) 1 NWLR (Pt.99) 549 and Umar v. Bayero University (1988) 4 NWLR (Pt.86) 85.
After appraising the affidavit evidence available to it, the critical finding the trial Court made, inter-alia, in its ruling, see pages 104 105 of the record of appeal, reads:-
“From the facts before the Court was the hearing notice served on defence counsel as averred by the plaintiff or not Exhibit R is before the Court. It contains the initials and the correct names of T. S. Shior who was then in the chambers of Osuman and company..I have looked at Exhibit R and compared the signature there with the one Mr. T. S. Shior signed on the memorandum of appearance and I have seen no difference. I have rather spotted differences in the signature that was filed as Exhibit C denying service. I agree with Mr. Ulegede that the signature in Exhibit C is not that of Mr. T.
13 S. Shior…I refuse to be persuaded by Exhibit C and hold that Exhibit R represents a valid document indicating that service was indeed effected on the defence counsel in July 1999 in the suit.” (Underlining supplied for emphasis).
Apart from the service of the hearing notice on the appellants, the Court further held that they were aware of the proceedings thereat against them thus:
“Considering the fact that the plaintiff and 1st and 2nd defendants are involved in a criminal case at the Chief Magistrate Court based on same facts and they have retained same counsel for the two cases; I believe plaintiff that 1st and 2nd defendants were in the habit of training (sic) him over the civil case when they went for the criminal matter as disclosed in the counter affidavit. …….and did not care to take action writing to come only when plaintiff would have thought that the case is almost over.”
The Court further inferred as follows:-
“I am convinced from the facts in this case that the defendants deliberately kept away from coming to Court or taking any step to defend the action instituted by the plaintiff against them with the aim of frustrating the course of
14 Justice.”
The Court in refusing the appellants the indulgence they prayed concluded at page 107 of the record thus:_
“…Where there are good and justifiable reasons for granting the extention (sic) then the Court will be right to extend time forthe act required where no good reasons exist the Court can not rely on forged reasons willy nilly on the basis that both parties hove to be heard. Where a party is given on opportunity to be heard and he turns it down the fault will not be that of the Court or the system of Justice….The defendants were knowingly and deliberately negligent and it is not for the Court to pamper them at this stage. I share the view of the plaintiffs counsel that the application is aimed at causing further hardship to the plaintiff and delaying the case in an inordinate manner.Reliefs i-iv refused as lacking any sound basis.”
The Lower Court at page 188 of the record most commendably set out the task before it thus:-
“To resolve the controversy in this issue, the principles and the applicable Law must take into account the facts and deductions which must emerge from the affidavits of parties (supra).”
The Court proceeded to find from these
15 affidavit, inter-alia, that the appellants, from Exhibit R, against the background of Exhibit C, were served hearing notice through their counsel Mr. Shior who, by his signature on the exhibit, acknowledged being served. It is the Court’s further finding that other than the fact of their being served, appellants were also aware of the proceedings commenced by the respondent against them. These findings led to the Court’s dismissal of the appeal before it and the affirmation of the trial Court’s ruling.
The real grouse in the instant appeal against the foregoing judgment of the Lower Court is that the evaluation of the affidavit evidence on record by both Courts below fall below legally acceptable standards and the resulting decisions from the exercise having occasioned injustice must be set-aside. How correct are the appellants in their contention
To arrive at enduring decisions, the two Courts must correctly evaluate the affidavit evidence of the contending parties and apply the relevant laws to the ascertained facts. In Mogaji V Odofin (1978) 4 SC 65 at 67 this Court has outlined the proper procedure to be adopted by Courts in the particular task thus:-
16 “In short, before a Judge before whom evidence is adduced by the parties before him in a civil case comes to a decision as to which evidence he believes or accepts and which evidence he rejects, he should first of all put the totality of the testimony adduced by both parties on that imaginary scale; he will put the evidence adduced by the plaintiff on one side of the scale and that of the defendant on the other side and weight them together. He will then see which is heavier not by the number of witnesses called by each party, but by quality or the probative value of the testimony of those witnesses. This is what is meant when it is said that a civil case is decided on the balance of probabilities. Therefore, in determining which is heavier, the judge will naturally have regard to the following:-
(a) Whether the evidence is admissible;
(b) Whether it is relevant;
(c) Whether it is credible;
(d) whether it is conclusive; and
(e) Whether it is more probable than that given by the other party.
Finally, after invoking the law, if any, that is applicable to the case, the trial judge will then come to his final conclusion based on the evidence which he has accepted.”
The above
17 procedure applies to affidavit evidence as it does to oral evidence. See also Adeyeye v. Ajiboye (1987) 3 NWLR (Pt.61) 432 at 451.
In the case at hand, the review of the affidavit evidence against the background of the submissions of counsel on the issues agitated undertaken by the two Courts, their consequential findings therefrom and the application of the relevant Laws to the facts ascertained, has earlier been demonstrated in this judgment. The Courts’ compliance with the procedure stipulated by this Court in its foregoing decisions is beyond dispute.
It must outrightly be observed that learned appellants’ counsel harbors serious misapprehension as to what conflict in affidavit evidence truly connotes. Conflict as a noun, see Oxford Advanced learner’s Dictionary, 8th Edition , denotes a persistent situation of serious disagreement in opposing ideas or wishes which makes preference of one to the other difficult. In legal parlance, therefore, conflict means the persisting violent disagreement in the averments of the contending parties which makes it unsafe, and indeed impossible, for the Court, in the face of the disagreement, to prefer from the affidavits of
18 both, the position of one to the other.
In the case at hand, the evaluation of the affidavits of the contending parties done by the trial Court and indeed the re evaluation of same by the Lower Court have clearly shown that the conflict the learned appellants’ counsel ascribes to them is non existent. What has emerged from the exercise is the undisputed fact of service of hearing notice, Exhibit R, on the appellants through their counsel, and their being aware of the proceedings against them through the unchallenged and uncontroverted averments in the counter-affidavit filed by the respondent in opposition to appellants’ application. It is elementary principle of law that such unchallenged averments must be acted upon by the Courts as being true.
Also, it is within the lawful province of Courts to examine documents if the resolution of the controversy between the parties before them so requires. In Ozigbo V C.O.P (1976) N.S.C.C. (Vol. 10) 124 restated the principle thus:
“In R V Smith 3 Cr APP R 87 and R V. Rickard 13 CR APP R 140, the Court of Criminal Appeal formed its own opinion as to the handwriting alleged to be that of the appellant after
19 confirming it with a letter written by her after conviction and without resort to expert evidence. We have ourselves compared the specimen undisputed handwritings of the appellant with the forged documents and, in particular, the forged cheque, Exhibit A, and see no reason for disturbing the finding of the learned senior magistrate that the appellant forged the cheque Exhibit A.”
(Underlining supplied for emphasis).
In the case at hand, one remains equally unconvinced by the submissions of learned appellants’ counsel that the conclusion drawn by the trial Court and the Lower Court as well, from Exhibit R and Exhibit C, after comparing the signatures of appellants’ counsel on the two, should be disturbed.
Finally, it must further be noted that appellants’ application, found unmeritorious by the two Courts below, was made pursuant to Order 22 of the Benue State High Court (Civil Procedure) Rules which stipulates:-
“The Court may on such terms as it thinks just by order extend or abridge the period within which a person is required or authorized by these provisions or by any judgment….do any act in any proceedings.” (Underlining supplied for emphasis).
20 Appellants are only entitled to the reliefs from the Courts if on the basis of the facts made bare to them the Courts think the grant of the reliefs is just. From the facts on record, both Courts found and correctly too that it is not just to allow the appellants who were duly served and otherwise aware of the proceedings against them to present their defence only as and when they chose to. Appellants apart, the justice of the grant as it affects the Court and the respondent is equally of essence of the rule of Court by virtue of which the merit or otherwise of appellants application must be assessed.
It is certainly not open to a litigant that had been served hearing notice commanding him to proceed to Court to defend the case instituted against him and who, the hearing notice apart, is otherwise aware of the proceedings taken against him by another, to assert a breach of his right to fair hearing if eventually a decision is given against him. Section 36(1) of the 1999 Constitution (as amended) which enshrines the doctrine of fair hearing the appellants’ wave with gusto does not avail them. The section only provides that before any decision is taken by a Court of law
21 against them, the appellants’ be given the opportunity to present their side of the matter. The appellants who chose to voluntarily stay away from the Court after that opportunity had been extended to them are not covered by the Section of the Constitution they now assert provides for them. So be it. See Okafor V Ag Anambra (1991) 6 NWLR 659; (1991) LPELR-2414 (sc) and Baba v N.C.A.T.C. (1991) 7 SC (Pt.1) 58, (1991) LPELR-692 (SC).
As a whole, I resolve the two issues in the appeal against the appellants who, by their arguments, failed to show that the concurrent decisions of the two Courts below are perverse. Resultantly, I dismiss the appeal and further affirm the trial Court’s ruling dismissing appellants’ application inter-alia for arrest of its judgment and extension of time to file their statement of defence. Respondent is entitled to costs which I hereby put a (N200,000.00k) Two hundred thousand naira against the appellants.
SC.190/2005