ONWUKA & ORS v ONWUKA

ONWUKA & ORS v ONWUKA


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

ON THURSDAY, 23RD MARCH, 2017


Appeal No: CA/OW/417/20 4
CITATION:

Before Their Lordships:

MASSOUD ABDULRAHMAN OREDOLA, JCA

ITA GEORGE MBABA, JCA

TUNDE OYEBANJI AWOTOYE, JCA


BETWEEN

CHRISTIAN IWU ONWUKA

FIDELIS IWU ONWUKA

CHIBUZOR IWU ONWUKA

(APPELLANT)

AND

VITUS CHIDI IWU ONWUKA

(RESPONDENT)


PRONOUNCEMENT


A. APPEAL
1. Record of Appeal – Binding nature of a record of appeal

Binding nature of a record of appeal/proceeding

“Appellant cannot, by affidavit, urge us to uphold a position which is not represented on the face of the Records of Appeal. By law the Records of Appeal speaks in every appeal and its contents are binding on the parties, Counsel and on the Appellate Court, as the true representation of what transpired at the Court below. See Orok v. Orok (2013) LPELR – 20377 (CA), Garba v. Omokhodion (2011) 15 NWLR (Pt.1269) 145.

The assertion that the judgment was delivered in chambers, can only be established in the printed Records of the Appeal, in the absence of concurrence or agreement on the issue in the affidavits of the parties/counsel, who appeared in the matter. Calling for oral evidence, in the circumstance, would in any view, amount to an indictment of the Records of Appeal, and would be a reliance on strange and adjunct process as record of proceedings at the trial of the suit, and that would be dangerous, for establishment of certainty of a Record Appeal. See Ayangoke & Anor vs. Keystone Bank Ltd (2013) LPELR – 21806 (CA), where this Court said:

“I have closely studied the Records of Appeal… which carry the proceedings at the hearing of the suit and the address of Counsel… I have not seen anything to suggest that the proceedings of the Court were conducted in chambers of the judge… By law, no Court has the jurisdiction to go outside, the records to draw conclusions which are not supported by the (Records of) Court.”

See, again, Garba vs. Omokhodian (2011) 15 NWLR (Pt.1269) 145 at 180.”Per MBABA, JCA. read in context

B. EVIDENCE
2. Affidavit Evidence – Resolution of material conflicts in affidavits

How conflict on material facts in affidavit evidence are resolved

“The learned counsel for the appellants contended that the lower Court having found that there are material conflicts in the affidavits of both parties, is required to call for oral evidence of the deponents in order to resolve the dispute. He cited many cases in support of this contention among which are: Falola V. U.B.N. Plc. (2005) ALL FWLR (Pt. 257) 1435; Imoniyame Holdings Ltd. V. Soneb Enterprises Ltd. (2010) 184 LRCN, 172 and Ahmed V. Minister Internal Affairs (2002) 15 NWLR (Pt. 790) 239 among others. However, the learned counsel for the appellants conceded that there are exceptions to the above stated principle. He stated and rightly so, that one of such exceptions is the existence of authentic documentary evidence attached to either or both contending affidavits. He referred us to the case of Okere V. Nlem (1992) 4 NWLR (Pt. 234) 132.” Per OREDOLA, JCA. read in context

3. Affidavit Evidence – Exception to the rule of calling oral evidence to resolve a conflict in affidavits

Exception to the rule of calling evidence to reconcile conflicting affidavits

“It is a general rule and also well established, that where two or more affidavits filed in respect of a particular subject matter are contradictory on material facts that need to be established, to enable a Court make its decision one way or the other in a case, the proper and normal procedure to be employed is calling for oral evidence in resolving the dispute. See Falobi V. Falobi (1976) 9 – 10 S.C. (Reprint) 1; Olu-Ibukun & Anor V. Olu-Ibukun (1974) 1 S.C., 179; N.N.P.C. V. Sabana (1988) NWLR (Pt. 74) 23; Okere V. Nlem (1992) NWLR (Pt. 234) 132; Nwosu V. Imo State Environmental Sanitation Authority & Ors. (1990) 4 S.C. 71 and Chairman, N.P.C. V. Chairman, Ikere L.G.A. & Ors. (2001) 13 NWLR (Pt. 731) 590. The above stated principle however, admits of some exceptions among which is reference to an authentic document which could be used in resolving the conflicts. That is, if there be in existence any authentic documentary evidence which could be used in resolving the said conflicts in the affidavits, the Courts are advised to have recourse to such document(s) and resolve the conflicts, without necessarily calling for oral evidence. See the case of Calabar Central Cooperative Thrift & Credit Society Ltd. & Ors. V. Bassey Ebong Ekpo (2001) 17 NWLR (Pt. 743) 644 (2001) LPELR – 6984, 36 – 37, where His Noble Lordship, Ekpe, JCA, enunciated as follows:

“It has to be emphasized here that, it is not only by calling oral evidence that conflicts in affidavit evidence could be resolved as there may be authentic documentary evidence, which supports one of the affidavits in conflict with another and which is capable of resolving the conflict and tilting the balance in favour of the affidavit which agrees with it. Documentary evidence is a yardstick with which to assess oral evidence. Where, therefore, there are documents which will enable the Court to resolve the affidavits which are materially in conflict, there is no need for oral evidence. See Fashanu V. Adekoya (1974) 1 ALL NLR (Pt. 1) 35 at page 118; Monica Ego Kanno V. Mrs. Banigo Ibiani Kanno & Ors. (1986) 5 NWLR (Pt. 40) 138 at 139; Lijadu V. Lijadu (1991) 1 NWLR (Pt. 69) 627 at 649.”

See also the case of Hope Uzodinma V. Senator Osita B. Izunaso & Ors. (2011) 17 NWLR (Pt. 1275) 30; (2011) LPELR – 20027, 25, wherein His Lordship, Bada, JCA, held as follows:
“… the law is firmly established that where there is enough documentary evidence outside the conflicting evidence, the Court can make use of the documentary evidence in resolving the issue before it. And there will be no need to resort to any oral evidence in such circumstances. See the case of: Lijadu V. Lijadu (1991) 1 NWLR Part 169 page 627 at 649.” See also Akujobi & Anor. V. Ekeman & Ors. (1998) PELR – 6456.

The rationale for employing documentary evidence in resolving this conflict is not farfetched. A document does not readily lie and it cannot unilaterally change its content. Indeed, it is generally used as a hanger to ascertain the truthfulness of oral evidence. Thus, it is generally regarded as a more reliable or preferred form of evidence.

On the basis of all that have been said above, I am of the firm viewpoint that the learned trial judge acted appropriately in having recourse to the Court’s record of proceedings in resolving the conflicts in the parties’ affidavit evidence. This is moreso, because by virtue of the combined effects of the provisions of Sections 47 (a) and 167 (c) of the Evidence Act, 2011 the Court’s records is presumed in law to be authentic and regular. Any party who wishes to impeach the contents of the Court’s record of proceedings is required by law to bring a motion on notice to that effect, accompanying the said motion with an affidavit with a certified true copy of the record annexed thereto, cite the portion of the record he wishes to impeach or challenge and state in his/her affidavit the contrary facts which were (in his/her opinion) wrongly substituted with the facts contained in the Court’s record. See the case of Okoro & Ors. V. Okoro (2009) LPELR – 8413, pg. 30, wherein His Noble Lordship, Galadima, JCA (as he then was) at page 80, in his contribution to the lead judgment, expatiated as follows:

“A trial Court is at liberty to use evidence in its file or record to arrive at justice, especially when the new evidence is inconsistent with previous evidence in the Court’s file by the same party given at the interlocutory stage without the party having the presence of mind to explain the contradictions or inconsistencies. The interest of the Court at all times must be to do justice and that should not vary at any stage of proceeding from interlocutory to substantive stage. See EJUETAMI V. OLAIYA (2002) FWLR (Pt. 88) 955 at 981 D – G; SODIMU V. NPA (1975) ANLR 151 at 156; & NIGERIAN NAVY V. GARRICK (2006) 4 NWLR (Pt. 969) 69.”Per OREDOLA, JCA. read in context

C. PRACTICE AND PROCEDURE
4. Trial – Factors that determine whether a trial was held in camera or in open court

Determinant of whether a trial is in camera or open court

“It is a common practice and standard procedure as the learned trial judge has rightly observed, that where matters are entertained or heard in the chambers by the Court, it is usually indicated on the face of the records, but where it was done in the Open Court, there is no need for such indication. Thus, the record of proceedings, of the lower Court which was relied upon by the learned trial judge could safely be held to enjoy such presumption. See Section 167 (c) of the Evidence Act, 2011. Hence, once there is no indication on the face of the record book that the matter was heard or the judgment was delivered in private or chambers, that is to the exclusion of the public, the proper inference that could be drawn is that the matter was heard or the judgment was delivered in public as required by law. On the basis of the above, I do hereby agree with the findings of the lower Court that the appellants have failed to place sufficient material/evidence before the lower Court to entitle them to the grant of the order of the lower Court, setting aside the judgment of Hon. Justice I. Offonry, J. (of blessed memory) in respect of this suit.

In addition, I also agree with the submission of the learned counsel to the respondent, that mere sitting or entertaining a matter in a judge’s chamber does not ipso facto make such proceedings a private sitting. The determinant factor is whether the parties and their counsel are granted the unfettered access and or freedom to conduct their cases, as they would have, if the proceedings took place in the regular Court room.” Per OREDOLA, JCA. read in context

5. Sitting in Chamber – Constitutionality of the Court sitting in chambers and hearing matters without argument

Provision of the Supreme Court Rules as regards the court sitting in chamber and hearing matters without argument

“Also, it is noteworthy and instructively significant, that Order 50(1)(b) of the Abia State High Court (Civil Procedure) Rules, 2014 though not ordinarily invocable as at the time the judgment being sought to be set aside was delivered; but has lend more credence to the argument that judges of the Abia State High Court could hold some proceedings in chambers in some appropriate cases or circumstances. The said Order 50(1)(b) provides as follows:

“1. Subject to the provision of the Constitution:

(b) Unless the opposite party or his counsel objects the judge may on application conduct any proceeding in Chambers, and may also on application, adjourn any such proceeding from Court to Chambers or vice versa.”

I am thus of the firm viewpoint that this provision has statutorily recognized some circumstances, whereat the learned trial judge, may with the consent of the parties adjourn, entertain or conduct some proceedings in chambers.

In the instant case, as can be gleaned from paragraphs six and eleven of the Appellants further affidavit in support of the appellants’ motion in respect of this case, the learned trial judge who delivered the judgment could not sit in the regular Court room because his chair was bad. This to my mind serves as one of the proper circumstances, whereby a judge could hear a matter in chambers, provided the parties consent to it. And, I do not envisage such consent being unreasonably withheld by either of the parties. Again, there is nothing before this Court (both in the parties’ affidavit and their written submissions) to suggest that the parties were not given adequate and or proper opportunity as they would have been entitled to in the regular Court room, or that they did not consent to the said sitting especially on the fact that this case was only scheduled for the learned judge to read or deliver his already prepared judgment and nothing more. Thus, I am more inclined to agree with the learned trial judge and find the appellants’ application to be lacking in merit on the above grounds among others. See the Supreme Court case of Chime V. Ude (1996) 7 NWLR (Pt. 461) 390; (1996) LPELR – 848, 24 – 25, per Uwais, CJN, where His Lordship with assimilating erudition held as follows:

“…the Supreme Court Rules, 1985 were made by the Chief Justice of Nigeria pursuant to these provisions and were also amended by him in 1991. Therefore, the constitutional validity of the rules is not in question. As a matter of fact, the provisions of the rules enabling the Supreme Court to sit in Chambers and hear matters without argument were challenged in Oyeyipo & Anor. V. Oyinloye (1987) 1 NWLR (Pt. 50) 356, and this Court, sitting as a full Court, held that it is not unconstitutional for the Supreme Court to sit in Chambers and deal with applications without orally hearing the parties thereto. Furthermore, since it is constitutional for the Court to sit in chambers under the specific provisions of Section 213 Subsection 2 (4) of the 1979 Constitution and deal with an application without oral hearing, then, I do not see the reason or the logic why similar procedure under the Supreme Court Rules, 1985, and in particular under Order 6 Rule 3(2), can be said to be unconstitutional for being inconsistent with the provisions of Section 33 Subsection (13) of the Constitution.” Per OREDOLA, JCA. read in context


LEAD JUDGMENT DELIVERED BY OREDOLA, JCA


This is an appeal against the ruling of the High Court of Abia State, sitting at Aba delivered on the 13th day October, 2014 by Hon. Justice Onuoha A. K. Ogwe, J. The said ruling emanated from a motion on notice dated the 7th day of October, 2013. It was filed on the 9th day of October, 2013 wherein the 1st – 3rd applicants/appellants sought for the following reliefs:

“1. AN ORDER SETTING ASIDE THE JUDGMENT OF THIS HONOURABLE COURT IN THIS SUIT DELIVERED ON 29TH JUNE, 2012 INCLUSIVE OF THE JUDGMENT ORDER MADE PURSUANT THERETO.

2. AN ORDER SETTING ASIDE THE FORM 48 (NOTICE OF CONSEQU NCES OF DISOBEDIENCE TO ORDER OF COURT) ISSUED TO THE 1ST TO 3RD DEFENDANTS/APPLICANTS IN THIS SUIT.” (See page 2 of the record of appeal.)

The motion was supported by a ten paragraph affidavit and a written address. In opposition to the motion, the respondent/respondent filed a 6 paragraph affidavit and a written address. In accordance with the rules of the lower Court, the 1st – 3rd applicants/appellants filed a further affidavit and a reply on points of law on the 14th day of March, 2014 in reply to the respondent/respondent’s counter – affidavit and written address in support thereof. Henceforth in this judgment, the 1st – 3rd applicants/appellants would be referred to as the appellants, while the respondent/respondent would simply be referred to as the respondent.

The crux of the appellants’ contention was that the lower Court’s judgment in Suit No. A/113/2000 delivered on the 29th day of June, 2012 by Hon. Justice I. Offonry, J. (of blessed memory) was delivered in the chambers of the said learned judge, contrary to Section 36 (3) of the Constitution of Federal Republic of Nigeria, 1999 (as amended). The learned counsel for the appellants maintained that some days before the judgment in the suit was delivered by the said Hon. Justice Offonry, the learned judge has been hearing cases before him, in his chambers with the explanation or excuse that his chair in the main Courtroom was not good and that the chair in his chambers is small and cannot be used in the main Court room. The learned counsel also stated that on the day the judgment was delivered, the Respondent and his former counsel, S. C. Obizue, Esq. together with one of the appellants’ counsel (Okwudiri C. Nwachukwu) were present and or in attendance.

In reply, the respondent contended that the appellants have failed to adduce credible evidence to establish the fact that the judgment was delivered in the learned judge’s chambers. This is mainly because the appellants failed to attach a copy of the record of proceedings which pertained to the day the judgment was delivered, to the appellants’ affidavit in support of the motion on notice.

After a proper and due consideration of the processes placed before him, the learned trial judge delivered his ruling and in essence dismissed the appellants’ application in the following words:

“The Applicants have not made a case for setting aside since they have not proved their only ground. This application lacks merit and is dismissed.”

The appellants were dissatisfied with the said ruling of the lower Court and thus, appealed against the same vide their notice of appeal dated and filed on the 17th day of October, 2014. The grounds upon which the ruling is being challenged without their particulars are as follows:

“GROUND ONE:

ERROR IN LAW

The learned trial judge erred in law when he failed to call oral evidence to resolve the conflicts in the averments in the Appellants’ affidavit and the Respondent’s Counter – affidavit.”

“GROUND TWO:

ERROR IN LAW

The learned trial judge erred in law when held that the application before him to set aside the judgment of his learned brother was brought in bad faith and lacked merit.”

“GROUND THREE:

ERROR IN LAW

The learned trial judge erred in law when he held that the appellants did not discharge the burden of proving that the judgment in the Suit was delivered in chambers.”

(See pages 30 – 32 of the record of appeal.)

The appellants’ brief of argument dated the 15th day of January, 2015, was filed on the 6th day of February, 2015. The said brief of argument was by the order of this Court, deemed as properly filed and served on the 25th day of February, 2016. The said brief of argument was prepared by Okey Onuigbo Esq. Also, the appellants’ reply brief dated 25th day of October, 2016 was filed on the 27th day of October, 2016. The said appellant’s reply brief was also by the order of this Court, deemed as having been properly filed and served on the 17th day of January, 2017. The said appellants’ reply brief was prepared by Mazi Ekene Davidson Esq.

On the other hand, the respondent’s brief of argument, dated the 15th day of March, 2016 was filed on the 13th day of April, 2016. It was by the order of this Court deemed as properly filed and served on the 4th day of October, 2016. The said respondent’s brief of argument was prepared by C. G. Nwachukwu Esq.

The learned counsel for the appellants in line with the grounds of appeal, formulated three issues for the determination of this appeal. The issues are reproduced below:
“(1) Whether the trial Court was right when it failed to call for oral evidence to resolve the material conflicts which clearly existed in the parties’ affidavits. (Arising from ground 1).

(2) Whether from the circumstances surrounding the application and the facts available, the trial judge was right in holding that the application was brought in bad faith and lacked merit. (Arising from grounds 2).

(3) Whether the learned trial judge was right in concluding that the appellants did not prove that the judgment in the suit was read in chambers. (Arising from ground 3).”

On his own part, the learned counsel for the respondent also distilled three issues for the determination of this appeal. The issues are as follows:

“(i) Whether in a matter, as the present one, which is fought by affidavit evidence, the trial Court was right in relying on its records of proceedings to resolve the conflict, in the affidavit of the parties over what transpired in that proceedings (Arising from ground 1).

(ii) Whether from the circumstances surrounding the application to set aside the judgment delivered by His Lordship, Late Honourable Justice Ijeoma Offonry on the 29th day of June 2012 and facts available before the Honourable Court, the learned trial judge was right in holding that the application was brought in bad faith and lacked merit. (Arising from ground 2).

(iii) Whether the learned trial Judge was right in concluding that the Appellants did not prove that the judgment in the suit was read in chambers (Arising from ground 3).”

I have carefully studied the two sets of issues formulated by the learned counsel to the parties and I found them materially similar, save for the variation in the use of words. Having carefully considered the processes on record, the ruling of the lower Court and the appellants’ grievances against the lower Court’s ruling as contained in the grounds of appeal in the appellants’ notice of appeal, I am of the firm viewpoint that the issues that call for determination in this appeal are issues and 3 of both appellants’ and respondent’s set of issues as contained in their respective briefs of argument. However, I am also of the considered view that the appellants’ issues are better couched and the same would be adopted for resolution in the determination of this appeal. Also, it is my firm standpoint that the said issues adopted for the determination of this appeal are interrelated. Thus, they would be considered together.

LEGAL ARGUMENTS.

The learned counsel for the appellants contended that the lower Court having found that there are material conflicts in the affidavits of both parties, is required to call for oral evidence of the deponents in order to resolve the dispute. He cited many cases in support of this contention among which are: Falola V. U.B.N. Plc. (2005) ALL FWLR (Pt. 257) 1435; Imoniyame Holdings Ltd. V. Soneb Enterprises Ltd. (2010) 184 LRCN, 172 and Ahmed V. Minister Internal Affairs (2002) 15 NWLR (Pt. 790) 239 among others.

However, the learned counsel for the appellants conceded that there are exceptions to the above stated principle. He stated and rightly so, that one of such exceptions is the existence of authentic documentary evidence attached to either or both contending affidavits. He referred us to the case of Okere V. Nlem (1992) NWLR (Pt. 234) 132. However, he argued that the document sought to be relied upon by the Court, “must be capable of resolving the conflict totally, it ought not to leave any issue to conjecture”

The learned appellants’ counsel further submitted that the record book used by the lower Court in arriving at its decision does not meet the above criteria because the record book did not state categorically that the proceeding on the day the judgment was delivered was conducted in the Open Court. In addition, the learned counsel submitted, “that the presumption that the proceedings must have been conducted in Open Court does not conclusively apply where there is evidence adduced by either party to the contrary.” He referred this Court to the case of Nigerian Air Force V. James (2003) ALL FWLR, (Pt. 143) 257 and Essien V. Essien (2010) ALL FWLR (Pt. 509) 539.

Conclusively, the learned counsel for the appellants submitted that the appellants had satisfactorily discharged the burden placed on them to necessitate a careful scrutiny of the facts stated in the competing affidavits on the balance of probabilities. Thus, he urged this Court to resolve these issues in favour of the appellants and allow this appeal.

In reply, the learned counsel for the respondent submitted that the lower Court was right when it relied upon its record of proceedings in resolving the conflicts in the affidavits of both parties. He relied on the cases of Okere V. Nlem (1992) 4 NWLR (Pt. 234) 132 and Peterside V. Pepple (2008) ALL FWLR (Pt. 445) 1703. The learned counsel further submitted, that the contention of the appellants’ counsel that presumption of regularity of official act cannot be conclusively applied in this case, because their affidavit evidence contradicted the record of Court is grossly misconceived. The learned counsel for the respondent strenuously argued that, if the appellants wish to challenge the record of proceedings of the lower Court, they should have annexed a copy of the records and cite the portions they are challenging, while stating the correct position in their various affidavits. Also, the learned counsel for the respondent, after analyzing the ruling of the lower Court submitted, that the contention by the learned counsel for the appellants, that the appellants affidavits were not considered is highly misconceived as the lower Court properly evaluated all the pieces of affidavit evidence placed before it before arriving at its decision.

Furthermore, the learned counsel for the respondent submitted that, “the contention of learned counsel for the appellants at paragraph 3 page 11 of his brief that, not recording that the session was not conducted in chambers is not conclusive proof that it was not conducted therein, is with greatest respect a gross misconception of what it means for a Court to “sit in chambers”. The learned counsel argued that the exact location where a Court sat is of little significance; that a Court would only be held to be sitting in chambers, “when it excludes the public from participating in the proceeding and in that case it ought to appear on the face of the record.” He referred us to the case of Chime V. Ude (1996) 7 NWLR (Pt. 461) 379. Conclusively, the learned counsel for the respondent, contended that the mere fact that the appellants’ affidavits contradicted the record of proceedings does not automatically make the record unreliable. Thus, he submitted that, “when there is a conflict between the account of party to a suit over what transpired in Court and the records of that Court itself, the records of Court prevails.” Therefore, he urged this Court to resolve these issues in favour of the respondent and accordingly dismiss this appeal for lacking in merit.

It is a general rule and also well established, that where two or more affidavits filed in respect of a particular subject matter are contradictory on material facts that need to be established, to enable a Court make its decision one way or the other in a case, the proper and normal procedure to be employed is calling for oral evidence in resolving the dispute. See Falobi V. Falobi (1976) 9 – 10 S.C. (Reprint) 1; Olu-Ibukun & Anor V. Olu-Ibukun (1974) 1 S.C., 179; N.N.P.C. V. Sabana (1988) NWLR (Pt. 74) 23; Okere V. Nlem (1992) NWLR (Pt . 234) 132; Nwosu V . Imo State Environmental Sanitation Authority & Ors. (1990) 4 S.C. 71 and Chairman, N.P.C. V. Chairman, Ikere L.G.A. & Ors. (2001) 13 NWLR (Pt. 731) 590. The above stated principle however, admits of some exceptions among which is reference to an authentic document which could be used in resolving the conflicts. That is, if there be in existence any authentic documentary evidence which could be used in resolving the said conflicts in the affidavits, the Courts are advised to have recourse to such document(s) and resolve the conflicts, without necessarily calling for oral evidence. See the case of Calabar Central Cooperative Thrift & Credit Society Ltd. & Ors. V. Bassey Ebong Ekpo (2001) 17 NWLR (Pt. 743) 644 (2001) LPELR – 6984, 36 – 37, where His Noble Lordship, Ekpe, JCA, enunciated as follows:

“It has to be emphasized here that, it is not only by calling oral evidence that conflicts in affidavit evidence could be resolved as there may be authentic documentary evidence, which supports one of the affidavits in conflict with another and which is capable of resolving the conflict and tilting the balance in favour of the affidavit which agrees with it. Documentary evidence is a yardstick with which to assess oral evidence. Where, therefore, there are documents which will enable the Court to resolve the affidavits which are materially in conflict, there is no need for oral evidence. See Fashanu V. Adekoya (1974) 1 ALL NLR ( t. 1) 35 at page 118; Monica Ego Kanno V. Mrs. Banigo Ibiani Kanno & Ors. (1986) 5 NWLR (Pt. 40) 138 at 139; Lijadu V. Lijadu (1991) 1 NWLR (Pt. 169) 627 at 649.”

See also the case of Hope Uzodinma V. Senator Osita B. Izunaso & Ors. (2011) 17 NWLR (Pt. 1275) 30; (2011) LPELR – 20027, 25, wherein His Lordship, Bada, JCA, held as follows:
“…the law is firmly established that where there is enough documentary evidence outside the conflicting evidence, the Court can make use of the documentary evidence in resolving the issue before it. And there will be no need to resort to any oral evidence in such circumstances. See the case of: Lijadu V. Lijadu (1991) 1 NWLR Part 169 page 627 at 649.”

See also Akujobi & Anor. V. Ekeman & Ors. (1998) LPELR – 6456.

The rationale for employing documentary evidence in resolving this conflict is not farfetched. A document does not readily lie and it cannot unilaterally change its content. Indeed, it is generally used as a hanger to ascertain the truthfulness of oral evidence. Thus, it is generally regarded as a more reliable or preferred form of evidence.

On the basis of all that have been said above, I am of the firm viewpoint that the learned trial judge acted appropriately in having recourse to the Court’s record of proceedings in resolving the conflicts in the parties’ affidavit evidence. This is moreso, because by virtue of the combined effects of the provisions of Sections 147 (a) and 167 (c) of the Evidence Act, 2011 the Court’s records is presumed in law to be authentic and regular. Any party who wishes to impeach the contents of the Court’s record of proceedings is required by law to bring a motion on notice to that effect, accompanying the said motion with an affidavit with a certified true copy of the record annexed thereto, cite the portion of the record he wishes to impeach or challenge and state in his/her affidavit the contrary facts which were (in his/her opinion) wrongly substituted with the facts contained in the Court’s record. See the case of Okoro & Ors. V. Okoro (2009) LPELR – 8413, pg. 30, wherein His Noble Lordship, Galadima, JCA (as he then was) at page 80, in his contribution to the lead judgment, expatiated as follows:

“A trial Court is at liberty to use evidence in its file or record to arrive at justice, especially when the new evidence is inconsistent with previous evidence in the Court’s file by the same party given at the interlocutory stage without the party having the presence of mind to explain the contradictions or inconsistencies. The interest of the Court at all times must be to do justice and that should not vary at any stage of proceeding from interlocutory to substantive stage. See EJUETAMI V. OLAIYA (2002) FWLR (Pt. 88) 955 at 981 D – G; SODIMU V. NPA (1975) ANLR 151 at 156; & NIGERIAN NAVY V. GARRICK (2006) 4 NWLR (Pt. 969) 69.”

It is a common practice and standard procedure as the learned trial judge has rightly observed, that where matters are entertained or heard in the chambers by the Court, it is usually indicated on the face of the records, but where it was done in the Open Court, there is no need for such indication. Thus, the record of proceedings, of the lower Court which was relied upon by the learned trial judge could safely be held to enjoy such presumption. See Section 167 (c) of the Evidence Act, 2011. Hence, once there is no indication on the face of the record book that the matter was heard or the judgment was delivered in private or chambers, that is to the exclusion of the public, the proper inference that could be drawn is that the matter was heard or the judgment was delivered in public as required by law. On the basis of the above, I do hereby agree with the findings of the lower Court that the appellants have failed to place sufficient material/evidence before the lower Court to entitle them to the grant of the order of the lower Court, setting aside the judgment of Hon. Justice I. Offonry, J. (of blessed memory) in respect of this suit.

In addition, I also agree with the submission of the learned counsel to the respondent, that mere sitting or entertaining a matter in a judge’s chamber does not ipso facto make such proceedings a private sitting. The determinant factor is whether the parties and their counsel are granted the unfettered access and or freedom to conduct their cases, as they would have, if the proceedings took place in the regular Court room. In the instant case, the appellants have not placed any facts, stating their rights which were denied or in respect of which miscarriage of justice has been occasioned to them, by the alleged delivery of the judgment in the judge’s chambers.

Also, it is noteworthy and instructively significant, that Order 50(1)(b) of the Abia State High Court (Civil Procedure) Rules, 2014 though not ordinarily invocable as at the time the judgment being sought to be set aside was delivered; but has lend more credence to the argument that judges of the Abia State High Court could hold some proceedings in chambers in some appropriate cases or circumstances. The said Order 50(1)(b) provides as follows:

“1. Subject to the provision of the Constitution:

(b) Unless the opposite party or his counsel objects the judge may on application conduct any proceeding in Chambers, and may also on application, adjourn any such proceeding from Court to Chambers or vice versa.”

I am thus of the firm viewpoint that this provision has statutorily recognized some circumstances, whereat the learned trial judge, may with the consent of the parties adjourn, entertain or conduct some proceedings in chambers.

In the instant case, as can be gleaned from paragraphs six and eleven of the appellants further affidavit in support of the appellants’ motion in respect of this case, the learned trial judge who delivered the judgment could not sit in the regular Court room because his chair was bad. This to my mind serves as one of the proper circumstances, whereby a judge could hear a matter in chambers, provided the parties consent to it. And, I do not envisage such consent being unreasonably withheld by either of the parties. Again, there is nothing before this Court (both in the parties’ affidavit and their written submissions) to suggest that the parties were not given adequate and or proper opportunity as they would have been entitled to in the regular Court room, or that they did not consent to the said sitting especially on the fact that this case was only scheduled for the learned judge to read or deliver his already prepared judgment and nothing more. Thus, I am more inclined to agree with the learned trial judge and find the appellants’ application to be lacking in merit on the above grounds among others. See the Supreme Court case of Chime V. Ude (1996) 7 NWLR (Pt. 461) 390; (1996) LPELR – 848, 24 – 25, per Uwais, CJN, where His Lordship with assimilating erudition held as follows:

“…the Supreme Court Rules, 1985 were made by the Chief Justice of Nigeria pursuant to these provisions and were also amended by him in 1991. Therefore, the constitutional validity of the rules is not in question. As a matter of fact, the provisions of the rules enabling the Supreme Court to sit in Chambers and hear matters without argument were challenged in Oyeyipo & Anor. V. Oyinloye (1987) 1 NWLR (Pt. 50) 356, and this Court, sitting as a full Court, held that it is not unconstitutional for the Supreme Court to sit in Chambers and deal with applications without orally hearing the parties thereto. Furthermore, since it is constitutional for the Court to sit in chambers under the specific provisions of Section 213 Subsection 2 (4) of the 1979 Constitution and deal with an application without oral hearing, then, I do not see the reason or the logic why similar procedure under the Supreme Court Rules, 1985, and in particular under Order 6 Rule 3(2), can be said to be unconstitutional for being inconsistent with the provisions of Section 33 Subsection (13) of the Constitution.”

In the premise, the two issues adopted for the determination of this appeal are hereby resolved in favour of the respondent and against the appellants. Having resolved the issues in the manner stated above, this appeal is hereby found to be lacking in merit and accordingly dismissed by me. Thus, the ruling of the lower Court, delivered on the 13th day of October, 2014 in respect of Suit No. A/113/2000 by Hon. Justice Onuoha A. K. Ogwe J. is hereby affirmed by me. Costs in the sum of N50, 000.00 is hereby awarded in favour of the respondent.

MBABA, JCA.

I had the advantage of reading the draft of the judgment just delivered by my learned brother, Oredola JCA and I agree with him that the appeal lacks merit.

Appellant cannot, by affidavit, urge us to uphold a position which is not represented on the face of the Records of Appeal. By law the Records of Appeal speaks in every appeal and its contents are binding on the parties, Counsel and on the Appellate Court, as the true representation of what transpired at the Court below. See Orok v. Orok (2013) LPELR – 20377 (CA), Garba v. Omokhodion (2011) 15 NWLR (Pt.1269) 145.

The assertion that the judgment was delivered in chambers, can only be established in the printed Records of the Appeal, in the absence of concurrence or agreement on the issue in the affidavits of the parties/counsel, who appeared in the matter. Calling for oral evidence, in the circumstance, would in any view, amount to an indictment of the Records of Appeal, and would be a reliance on strange and adjunct process as record of proceedings at the trial of the suit, and that would be dangerous, for establishment of certainty of a Record Appeal. See Ayangoke & Anor vs. Keystone Bank Ltd (2013) LPELR – 21806 (CA), where this Court said:

“I have closely studied the Records of Appeal… which carry the proceedings at the hearing of the suit and the address of Counsel… I have not seen anything to suggest that the proceedings of the ourt were conducted in chambers of the judge… By law, no Court has the jurisdiction to go outside, the records to draw conclusions which are not supported by the (Records of) Court.”

See, again, Garba vs. Omokhodian (2011) 15 NWLR (Pt.1269) 145 at 180.

With this and the more elaborate reasons in the lead judgment, I too dismiss the appeal and abide by the consequential orders in the lead judgment.

AWOTOYE, JCA.

I entirely agree.