Wardrop Osita Obiesie V. Rowland Nweke Obiesie (2007)

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JIMI OLUKAYODE BADA, J.C.A.

This is an appeal against the Judgment of the High Court of Anambra State holden at Otuocha, delivered on the 14th day of March, 2005 in Appeal NO.OT/6A/2003: Wardrop Osita Obiesie Vs. Rowland Nweke Obiesie.

The court below in its judgment held that the appellant was denied the opportunity of defending the case against him and of prosecuting his counter-claim. And that he was denied fair hearing which occasioned a miscarriage of Justice. It then set aside the Judgment of the learned Magistrate and ordered that the case be remitted back to the Chief Magistrate Court, Nteje to be heard and determined by another Magistrate.

Dissatisfied with the decision to set aside the said Judgment, the appellant now appealed to this Court.

The appellant formulated one issue for determination as follows:-

“Was the Court below right in holding that the trial court denied the respondent the opportunity of defending the case and of prosecuting his counter claim.”

The Respondent on the other hand also formulated one issue for determination as follows:-

“Was the court below not right in holding that the Respondent was denied the opportunity of defending the case against him and of prosecuting his counter claim and in the circumstance he was denied fair hearing, which occasioned a miscarriage of justice.”

At the hearing, learned counsel for both parties adopted and relied on their respective briefs of argument.

In determining this appeal, I think it will suffice to consider the issue formulated in the respondent’s brief of argument since the issue formulated in the appellant’s brief of argument is more or less the same as that of the respondent.

The learned counsel for the appellant submitted that the learned judge at the court below was wrong in holding that the respondent was denied the opportunity of defending the case against him and of prosecuting his Counter-Claim.

He referred to pages 12- 13 of the record to show how the trial Magistrate warned on the delay tactics of the respondent and his counsel.

References were also made to the several applications for adjournment by the respondent and learned counsel for the appellant submitted that the only duty imposed on the court by the provision of Section 36 of the 1999 Constitution is to give every party before it an equal opportunity to be heard and present its case. When a party has been afforded the required opportunity to be heard by the court, it has discharged the duty imposed on it by the Constitution. He submitted further that the general principle of law is that a person who was not heard but was given ample opportunity of being heard which he failed to make use of, cannot thereafter complain of a lack of fair hearing. Fair hearing is not a one-way affair, it affects both parties. He referred to:- Darma Vs. Oceanic Bank International Nig. Ltd. (2005) 4 NWLR Part 915 Page 391 at 409.

Learned counsel also relied on the cases of – Ajidahun Vs. Ajidahun (2000) 4 NWLR Part 654 at Page 605 particularly at 614 where the Court of Appeal per Galadima J.C.A. held that