BURGA & ORS V KAMA

BURGA & ORS V KAMA


IN THE COURT OF APPEAL
IN THE JOS JUDICIAL DIVISION
HOLDEN AT JOS

ON THURSDAY, 28TH JUNE, 2018


Suit No: CA/J/50/2015

CITATION:

Before Their Lordships:

UCHECHUKWU ONYEMENAM, JCA

HABEEB ADEWALE OLUMUYIWA ABIRU, JCA

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA


BETWEEN

LAWAL BURGA
DAYI ISA
YOHANNA AYUBA
MARKU ISA
SHEHU KOMO
(APPELLANTS)

AND

PAUL KAMA
(RESPONDENT)


PRONOUNCEMENT


A. CONSTITUTIONAL LAW
1. Right to Fair Hearing – The implication of the principle of fair hearing

The principle of fair hearing first and foremost implies that both sides be given an opportunity to present their respective cases. It implies that each side is entitled to know what case is being made against it and be given an opportunity to reply thereto. Fair hearing also imposes some obligations on the Court or Tribunal that the Judge must be impartial and without bias. The right is to ensure that equal and reasonable opportunity is given to the parties. See the cases of Elike V. Nwakwoala & Ors (1984) LPELR 1118 SC, PDP V. Nguroje & Ors (2012) LPELR 20859 CA, Paul Unongo V. Aper Aku & Ors (1983) 11 SC 129 Adigun V. A-G Oyo State (1987) 1 NWLR (PT. 53) 678 and Garba V. UNIMAID (1986) 1 NWLR (PT.) 18 550. The apex Court in Sabiru Adebayo V. A-G Ogun State (2008) 33 NSCQR VOL. 1 P. 1 per Niki Tobi JSC, as he then was, stated thus;

“The fair hearing provision in the Constitution is the machinery or locomotive of justice not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Courts to apply it to his advantage ……it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard…”

From the Record in the instant appeal, it is pertinent to note and with respect to the Court below, that the trial of the Appellants’ suit unnecessarily was dragged and time was consequently wasted which ought not to have been. There were many avoidable adjournments and the situation was not helped in the least by the learned Counsel to the parties. In my considered and respectful view, the case that commenced in 2006, specifically on 14/12/2006 ought not to have lasted for eight (8) years given the facts and all the processes filed as contained in the Record. It is the duty of Counsel as Ministers in the temple of justice to see that justice is not for any reason delayed as that would amount to denial. The applications for adjournments and non- attendance at the Court rendering the Court unable to proceed by both Counsel on both sides. Having said that, the question whether there was denial of fair hearing to the Appellants at the Court below needs be answered. The answer is in the affirmative given the proceeding of 3/10/2012, the day the Court delivered its ruling. It rightly granted the Appellants’ two (2) prayers it set aside the order for adoption and relisted the motion that was struck out for hearing. However, upon the espondent’s Counsel’s application, the motion that was relisted was struck out again since the Appellants’ Counsel was not in Court after the ruling to move same. There was no opportunity given to the 1st Appellant who was in Court to comment on the application for the striking out of their motion. He was not allowed to state his position before the application was struck out and the parties back to status quo, that is, adoption of final addresses. See pages 75- 76 of the Record as well as the ruling of the Court on the motion of the new Appellants’ Counsel who tried to salvage the mess and blunders committed by the former Counsel. On page 99 of the Record, the Court noted thus acknowledging the presence of one of the 1st Appellant who was in Court: “…..However even though one of the plaintiffs was in Court their counsel was not in Court …..”. The procedure by the Court was wrong without an opportunity given to the 1st Appellant in respect of the matter that concerned him, regardless of the absence of his Counsel. In that regard, one finds in favour of the Appellants on this issue as breach of fair hearing lies in the procedure followed and not in the correctness or otherwise of a decision. See the cases of Olufeagba V. Abdul-Raheem (2009) 40 NSCQR 684 and Samba Petroleum Ltd. V. Uba (2010) 43 NSCQR. Having so found, it is my considered view and humbly that, to proceed in the determination of Issues 1-3 would amount to mere academic exercise as it would be of no profit at the end of the day. Once it is found as herein that there is a breach of the right to fair hearing of a party, the proper thing to do is to regard as a nullity the entire proceedings and strike out the suit. Having so found, it is my considered view and humbly that, to proceed in the determination of Issues 1-3 would amount to mere academic exercise as it would be of no profit at the end of the day. Once it is found as herein that there is a breach of the right to fair hearing of a party, the proper thing to do is to regard as a nullity the entire proceedings and strike out the suit. Per WILLIAMS-DAWODU, JCA. read in context


LEAD JUDGMENT DELIVERED BY WILLIAMS-DAWODU, JCA


The Appellants who were the Plaintiffs at the Court below vide Suit No. BA/58/ 03 before the Bauchi State High Court sued the Respondent (the Defendant at the Court below) in respect of a piece of land at Marti Village, Tafawa Balewa Local Government Area of Bauchi and prayed for declaration of title thereto. At the end of the trial, the Court, on April 17th 2014, in its wisdom dismissed the Appellants’ suit and gave judgment delivered by Hon. Chief Judge I. M. Zango in favour of the Respondent’s Counter-claim.

Reproduced hereunder are the reliefs sought by the

Appellants:

1. A declaration that the settlement and farmland in dispute situate at Marti village T/Balewa LGA Bauchi state (sic) described in paragraph 11 above which land is known to all parties in this case belongs to the plaintiffs.

2. A declaration that the entry into the lands and installation of grinding machine by the defendant without the consent or authority of the plaintiffs amount to trespass.

3. A (sic) order directing the defendant to uproot his grinding machine from the land.

4. Perpetual injunction restraining the defendant whether by himself, his agent, servant, privies, representatives or any person deriving authority from him from entering, trespassing or in any manner whatsoever tempering with the land in dispute.

5. The sum of N2, 000, 000. 00 (Two Million Naira) only being general damages.

6. Cost of this action and all incidental expression (sic).

The Counter-claim of the Respondent went thus:

1. A declaration that the entry of the plaintiffs into the land and plucking his locust beans tress (sic) amount (sic) to trespass.

2. The sum of N2, 000, 000. 00 general damages for trespass.

3. An order of perpetual injunction restraining the 2nd 3rd 4th and 5th plaintiffs, their agents, servants or privies from entering, tempering with or further trespassing the land in dispute.

Dissatisfied with the said Judgment, the Appellants filed their Notice of Appeal dated July 10th, 2014 on the same date and as amended and filed on March 21st, 2017 which was deemed as properly filed and served on March 22nd 2017 with six (6) grounds of appeal. They sought the following relief:

a. An order setting aside the decision of the lower Court.

b. An order entering judgment for the Appellants in terms of the reliefs sought before the lower Court.

c. Alternatively, an order for trial de novo before another judge of the same Court.

In compliance with the Rules of this Court, parties exchanged their briefs of argument. The Appellant’s brief dated November 30th, 2017 was filed on the same date and settled by Ahmed A. Accanny Esq., and the Respondent’s dated February 14th, 2018, was filed February 5th 2018, was deemed as properly filed and served on February 7th, 2018 and was settled by M. A. Tsuwa Esq. The Appellants also filed a Reply brief on February 15th, 2018 and was dated February 14th, 2018.

ISSUES SUBMITTED BY THE APPELLANTS:

i. Whether the identity of the land in dispute was in issue before the lower Court (ground ii).

ii. Whether the Appellants have proved who first cleared and settled on the land (grounds I and ii).

iii. Whether the evidence of PW3, the village head of Lere amounted to hearsay evidence (ground iv).

iv. Whether the lower Court by closing the right of the Appellants to cross-examine Dw2 had given the Appellants a fair hearing (ground v).

ISSUES SUBMITTED BY THE RESPONDENT:

1. Whether or not it was necessary to prove the identity of the land in dispute with certainty following the divergent boundaries set out in the respective pleadings of the parties.

2. Whether the Appellants proved the history and devolution of the land they claimed.

3. Whether or not the evidence of PW3 was hearsay evidence.

4. Whether the Appellants were denied fair hearing in any way by closing their right to cross examine DW2.

I find the two sets of Issues similar and almost the same. However I shall adopt the Issues submitted by the Appellants for the determination of this appeal.

SUBMISSION ON BEHALF OF THE APPELLANTS

Mr. Ahmed Accanny Esq., submitted that, the parties were ad idem on the identity of the land in dispute in view of their pleadings and therefore there was no burden on the Appellants to prove the identity of the land. That, since the Respondent admitted knowledge of the land being claimed, the Appellants were no longer obliged to prove the said land any more. He cited in support, the case of Anyanwu V. Uzowuaka (2009) 13 NWLR (PT. 1159) 445. He submitted that, the Appellants succeeded in establishing through credible evidence that their grandfather cleared the land in dispute first and settled thereon. He argued that the evidence of the PW3 was not hearsay as he relayed to the Court what he heard and cited in support the cases of Lasun V. Awoyemi (2009) 16 NWLR (PT. 1168) 513 and Ojo V. Gharoro (2006) 10 NWLR (PT. 987) 173.

He argued that, closure of the Respondent’s case without asking the 1st Appellant who was present in Court whether or not he was opposing the application to discharge DW2 was wrong and was tantamount to breach of the Appellants’ right to fair hearing especially as his Counsel was not in Court. He cited in support the cases of Yusuf V. I.I.T.A. (2009) 5 NWLR (Pt. 1133) 18, Nitel Plc V. I.C.I.C. (Directory Publisher) Ltd. (2009) 16 NWLR (Pt. 1167) 356 And B.O.N. Ltd. V. Adegoke (2006) 10 NWLR (Pt. 988) 3 9. He urged that the proceedings ought to be declared a nullity therefore no matter how well conducted and cited the cases of Evong V. Messrs Obono, Obono & Asso (2012) 6 NWLR (PT. 1296) 388 and Tao & Sons Ind Ltd. V. Gov. Oyo State (2011) 6 NWLR (Pt. 1242) 1.

SUBMISSION ON BEHALF OF THE RESPONDENT

The learned Respondent’s Counsel, Mr. Tsuwa Esq. submitted that, it was necessary to prove the identity of the land in dispute since the parties set out different boundaries and were not ad idem. Further that, the Appellants had the burden to so prove as they were seeking a declaration of title to the land in dispute and in support, cited the cases of Muemue V. Gaji (2000) FWLR Pt. 16 2764, Atanda V. Iliasu (2013) ALL FWLR Pt. 681 1469 and Nwagu V. Fadipe (2014) ALL FWLR Pt. 746 564 amongst others.

The learned Counsel submitted that the Appellants failed to prove the history and devolution of the land they claimed as well as their averment that the land was given on loan to the Respondent. That, the evidence of the Appellants’ witnesses was majorly in conflict and manifestly contradictory, therefore unreliable. He argued that, the evidence of PW3 was hearsay as none of the nine (9) chiefs who told him that the land belonged to the Appellants testified. Consequently, his evidence was hearsay and cited the cases of F. R. N. V. Usman (2012) ALL FWLR (Pt. 632) 1639, Suntai V. Tukur (2003) FWLR (Pt. 157) 1128 and Olafemi V. Ayo (2009) ALL FWLR (Pt. 452) 111 amongst others cited.

He submitted that there was no denial of fair hearing to the Appellants as they were given several opportunities to cross examine DW2 but they slept on their right and cited the cases of Newswatch Communications Ltd. V. Atta (2006) ALL FWLR (Pt. 318) 584, Uma V. Effiom (2014) ALL FWLR (Pt. 731) 1630 and Owor V. Christopher (2010) ALL FWLR (Pt. 511) 962. He argued that, even as they were unable to cross-examine DW2, their case was not injured in any way because they had the duty to prove their case and could not rely on that of the defence. Further that the evidence of DW2 was principally on the Respondent’s Counter-claim which they did not join issues on as they did not file a defence thereto. The learned Respondent’s Counsel submitted that, there being no issue formulated on ground six, which is the award of the land to the Respondent, it meant the Appellants abandoned the issue. And where that is the case, it means that there is no appeal against the award to the Respondent, thereby making the whole appeal academic. That, even if all the issues were allowed, the grant would continue to stand. In conclusion, he urged that the appeal be dismissed as it is academic amongst other reasons.

RESOLUTION BY THE COURT

I have very carefully read through the printed Record, the briefs by both sides including the Appellants’ Reply brief, and having so very carefully done, I shall proceed by considering the issues adopted one after the other. For obvious reasons I shall begin with Issue no. 4, whether or not the Appellants were denied fair hearing as follows:

ISSUE NO. IV

Whether the lower Court by closing the right of the Appellants to cross examine Dw2 had given the Appellants a fair hearing.

In considering this issue, one has to resort to the Record for the proceedings relevant thereto. On 16/3/2011, DW2 testified but was not cross-examined as there was no representation for the Appellants though the 1st Plaintiff/Appellant was in Court and so cross-examination was adjourned to 12/4/2011. On the adjourned date, the 1st, 2nd and 4th Appellants and the Respondent were present but the Appellants’ Counsel wrote requesting that the matter be adjourned on account of ill health and it was adjourned to 11/5/2011.

The 1st and 2nd Appellants and the Respondent were present and both sides were represented. However, the Respondent’s witness was not available. The matter was consequently adjourned upon the Respondent’s Counsel’s application to 18/4/2011. There is obviously a mistake in the recording of the date because the sitting was in June and so the next adjournment could not have been April. From the Record, the next sitting from 21/6/2011 was 13/12/2011. 1st Appellant and the Counsel for the Respondent were in Court. Again, the Respondent’s witness was absent and upon the Counsel’s application, the matter was adjourned to 16/1/2012. The Court sat next on 13/3/2012. The 1st Appellant, the Respondent and his Counsel were in Court but the Appellant’s Counsel wrote and requested that the matter be stood down till 12 noon which the Court obliged. By 12 noon the Appellants’ Counsel did not arrive and upon the application of the Respondent’s Counsel, DW2 was discharged, the Respondent’s case was closed and the matter adjourned to 28/3/2012 for address. The Court sat next on 25/4/2012.

The 1st and 4th Appellants and the Respondent were in Court. The Respondent’s Counsel requested that the matter be adjourned as the Respondent’s final written address was not ready and the matter was adjourned to 17/5/2012. On the adjourned date, the 1st Appellant and Respondent were present as well as the Respondent’s Counsel. The learned Counsel urged the Court to strike out a motion dated 15/3/2012 which was filed by the Appellants in view of the closure of the Respondent’s case. The said motion was struck out and the matter was adjourned to 11/6/2012. The Court sat next on 8/7/2012. Parties were absent, Counsel on both sides were in Court and the Appellants’ Counsel moved a motion for the Court to set aside the order for adoption of addresses and for relisting the Appellants’ motion which was struck out. On 3/10/2012, the Court delivered its Ruling, set aside the order for adoption of final addresses and relisted the motion to recall DW2 for cross-examination. The 1st Appellant was in Court and the Respondent’s Counsel. Pursuant to the Ruling, the Respondent’s Counsel urged the Court to strike out the Appellants’ motion that was relisted since the Appellants’ Counsel was not in Court. The Court ordered as prayed without involving the 1st Appellant who was present in Court, the matter as it were was adjourned to 19/11/2012 for adoption of addresses. At the next sitting, 29/3/2013, the 1st and 3rd Appellants were in Court, the Respondent was absent, Counsel on both sides were present. The Appellants’ Counsel requested time as his written address was not ready for adoption and the matter was adjourned to16/5/2013 for adoption. On 6/6/2013 when the Court sat, the 1st Appellant and the Respondent were in Court as well as the Counsel for both sides. A new Counsel appeared for the Appellants with a motion dated 15/5/2013, to set aside the order for adoption of written addresses and recall DW1 and DW2 for cross-examination and the motion was heard. On 30/9/2013, the Court in its ruling refused the application and recalled thus:

“The plaintiffs (sic) counsel filed a motion dated 5th June, 2012 to set aside the order adjourning the case for address. Even though the application were vehemently opposed by learned counsel for the defendant/Respondent this court in its ruling dated 2/10/2012 gave the plaintiffs last opportunity to continue with the case by recalling DW1-11 for cross examination as prepared in their entire motion dated 15th March, 2012. However even though one of the plaintiffs was in Court their counsel was not in Court to move the said motion which was struck out on the application of the Respondent’s counsel.’’

See pages 99-100.

The Court found the motion lacking in merit and it was dismissed. The parties’ final written addresses were adopted on 11/2/2014 and the consequent judgment that is being appealed against was delivered on 17/4/2014. For the foregoing proceedings of the Court below, see pages 39-119 of the Record. The Appellants’ grouse as regards what took place on 3/10/2012, the day the first ruling was delivered that they were denied fair hearing, as the application by the Respondent’s Counsel was granted without any recourse to the 1st Appellant who was in Court. That, the 1st Appellant was not given any opportunity to be heard and he was affected by the decision of the Court.

The principle of fair hearing first and foremost implies that both sides be given an opportunity to present their respective cases. It implies that each side is entitled to know what case is being made against it and be given an opportunity to reply thereto. Fair hearing also imposes some obligations on the Court or Tribunal that the Judge must be impartial and without bias. The right is to ensure that equal and reasonable opportunity is given to the parties. See the cases of Elike V. Nwakwoala & Ors (1984) LPELR 1118 SC, PDP V. Nguroje & Ors (2012) LPELR 20859 CA, Paul Unongo V. Aper Aku & Ors (1983) 11 SC 129 Adigun V. A-G Oyo State (1987) 1 NWLR (Pt. 5 ) 678 and Garba V. UNIMAID (1986) 1 NWLR (Pt.) 18 550. The apex Court in Sabiru Adebayo V. A-G Ogun State (2008) 33 NSCQR VOL. 1 P. 1 per Niki Tobi JSC, as he then was, stated thus;

“The fair hearing provision in the Constitution is the machinery or locomotive of justice not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Courts to apply it to his advantage……it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard…’’

From the Record in the instant appeal, it is pertinent to note and with respect to the Court below, that the trial of the Appellants’ suit unnecessarily was dragged and time was consequently wasted which ought not to have been. There were many avoidable adjournments and the situation was not helped in the least by the learned Counsel to the parties. In my considered and respectful view, the case that commenced in 2006, specifically on 1 /12/2006 ought not to have lasted for eight (8) years given the facts and all the processes filed as contained in the Record. It is the duty of Counsel as Ministers in the temple of justice to see that justice is not for any reason delayed as that would amount to denial. The applications for adjournments and non-attendance at the Court rendering the Court unable to proceed by both Counsel on both sides. Having said that, the question whether there was denial of fair hearing to the Appellants at the Court below needs be answered. The answer is in the affirmative given the proceeding of 3/10/2012, the day the Court delivered its ruling. It rightly granted the Appellants’ two (2) prayers it set aside the order for adoption and relisted the motion that was struck out for hearing. However, upon the Respondent’s Counsel’s application, the motion that was relisted was struck out again since the Appellants’ Counsel was not in Court after the ruling to move same. There was no opportunity given to the 1st Appellant who was in Court to comment on the application for the striking out of their motion. He was not allowed to state his position before the application was struck out and the parties back to status quo, that is, adoption of final addresses. See pages 75-76 of the Record as well as the ruling of the Court on the motion of the new Appellants’ Counsel who tried to salvage the mess and blunders committed by the former Counsel. On page 99 of the Record, the Court noted thus acknowledging the presence of one of the 1st Appellant who was in Court:

“…..However even though one of the plaintiffs was in Court their counsel was not in Court …..’’.

The procedure by the Court was wrong without an opportunity given to the 1st Appellant in respect of the matter that concerned him, regardless of the absence of his Counsel. In that regard, one finds in favour of the Appellants on this issue as breach of fair hearing lies in the procedure followed and not in the correctness or otherwise of a decision. See the cases of Olufeagba V. Abdur-Raheem (2009) 40 NSCQR 684 and Samba Petroleum Ltd. V. Uba (2010) 43 NS QR.
Having so found, it is my considered view and humbly that, to proceed in the determination of Issues 1-3 would amount to mere academic exercise as it would be of no profit at the end of the day. Once it is found as herein that there is a breach of the right to fair hearing of a party, the proper thing to do is to regard as a nullity the entire proceedings and strike out the suit. In the result, one finds the Appellants’ appeal to have merit and is hereby allowed, the judgment of the Bauchi State High Court delivered by Hon. Justice Ibrahim M. Zango on April 17th 2014 is hereby accordingly set aside and the Appellants’ Suit no. BA/58/03 is hereby struck out. It is further ordered that, the matter be transferred by the Hon. Chief Judge of Bauchi State to another Judge other than Hon. Justice Zango for re-hearing.

ONYEMENAM, JCA

My learned brother ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA obliged me with the draft copy of the lead judgment just delivered. I agree with him that it is proper to disregard every proceeding in a suit once it is discovered that there is a breach to fair hearing of a party. I allow the appeal for being meritorious and set aside the judgment of High court of Bauchi State delivered on 17th April, 2014 by Ibrahim M. Zango, J. and strike out the Appellant’s Suit No. BA/58/03.

I also order that the Suit be transferred to another Judge by the Chief Judge of Bauchi State for hearing.

ABIRU, JCA

I have had the privilege of reading before now the lead judgment delivered by my learned brother, ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, JCA.

His Lordship has considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide by the conclusions reached therein.

Appearances:

Mr. Ahmed Accanny, Esq. For Appellant(s)

Mr. Tsuwa, Esq. For Respondent(s)