Uche H. Otuoke & Ors V. Albert Phili & Anor (2000)
LawGlobal-Hub Lead Judgment Report
JAMES OGENYI OGEBE, J.C.A.
The appellants lost a land case before the customary Court Ngo in Rivers State and appealed to High Court Rivers State sitting as a Court of Appeal.
When the appeal came up for hearing before the High Court on the 15th day of November, 1995, the learned counsel for the appellant Mr. M. J. Ogbomo holding the brief of Mr. Nosiri informed the court that his principal traveled to Enugu to handle a matter before the Court of Appeal . He then applied for an adjournment of the appeal. The court below without calling for the reaction of the learned counsel for the respondents who was present and without ruling on the application for an adjournment wrote a short judgment dismissing the appeal.
The short judgment is reproduced hereunder:
“COURT: Mr. Nosiri did not produce the hearing notice served on him from the Court of appeal Enugu for this court to grant the application.
He was in court on 13/11/95 when this case was adjourned specifically to today for hearing. It is presumed that he has abandoned his appeal.
The appeal is accordingly dismissed N500 costs to respondents.
(SGD.) (SGD.)
K.D. UNGBUKU E.J. IGONTWART
CHIEF JUDGE JUDGE
15/11/95. 15/11/95.”
Dissatisfied with this decision the appellants have appealed to this court and the learned counsel for them filed a brief of Argument and identified one issue for determination as followed:
“Whether the decision of the Customary Court of Appeal below dismissing the Appellant’s appeal is justifiable.”
The appellants were granted leave to argue the appeal on their brief alone as the respondents failed to file any brief. The learned senior counsel submitted that the lower court was wrong in dismissing the appeal when the appeal had not been heard on the merit and there was an application before it for all adjournment. The lower court instead of ruling on the application for adjournment hurriedly dismissed the appeal. He said that this was a violation of the principle of fair hearing enriched in section 33(1) of 1979 constitution. He relied on the case of Bamawo v. Garrick (1995) 6 NWLR (Pt. 401) 356.
I agree entirely with the submission of the learned senior counsel that the appellants were not given a fair hearing.
It is the duty of every Court established for the administration of justice to give parties before it opportunities to present their cases before arriving at a just decision. A party should not be shut out arbitrary and denied the chance of presenting his case. The principle of fair hearing is cardinal to the administration of justice in this country and should be treated with levity by any court. See the case of Bamawo v. Garrick (1995) 6 NWNR (Pt. 401) (356) N.B.C.I. V. M.G.I Company Limited (1992) 2 NWNR (Pt. 221) 71.
In this case what was before the lower court was an application for adjournment and not an application for dismissal of the appeal for what of prosecution for an adjournment. It even failed to call on the respondent’s counsel to express his opinion on the application for adjournment. It hurriedly dismissed the appeal.
Under normal circumstances, an appeal which has not been heard on merit cannot be dismissed but struck out. If the lower court had been methodical in its approach it would have given a ruling on the application for if refused, it would then have called on appellants’ counsel to go ahead and argue the appeal. If appellant’s counsel refused to argue the appeal then the lower court would be in a position to strike it out for want of prosecution.
What the lower court did was entirely capricious and bras a denial of justice to the appellants.
Consequently, I find merit in this appeal and I allow it. I set aside the judgment of the lower court and remit the appeal to the chief Judge of Rivers State to be heard de novo by the High court differently constituted. The respondents shall pay costs of N5, 000.00 to the appellants.
Other Citations: (2000)LCN/0835(CA)