Duty of Court where a Party Engages Dilatory Tactics
The Respondents filed a Motion Ex-parte seeking leave of court to maintain the suit in a representative capacity, for themselves and as representing the members of Ibotirem Town, Andoni, excluding the Defendants who are the Appellants. Further to the said leave, they filed a Statement of Claim against the Appellants, seeking inter alia, a Declaration that the 1st Respondent is the Okan-Ama of Ibotirem Town, Andoni, having been properly selected, presented and installed. They also claimed that the 2nd Appellant is not the Okan of Okan-Ama of Ibotirem Town, by reason of the fact that, he is not a member of the ruling families of Ibotirem Town, and that the Etipetip Ukwuyok family of Ibotirem Town is not the royal family of Ibotirem Town.
The Appellants filed a Statement of Defence and Counter-claim seeking Declarations that, under the Customary Law and Tradition of Ibotirem Andoni, the Ukwuyok ruling house is the only family from which the Okan-Ama of Ibotirem can be selected and installed, and that the 2nd Appellant is the OkanAma of Ibotirem. They also sought a Declaration that the 1st Respondent could not be, and was not validly selected as the Okan-Ama Elect of Ibotirem.
At the trial, the Respondents called witnesses and tendered exhibits in support of their case. The suit was adjourned repeatedly, at the instance of the Appellants. The Appellants subsequently, alleged that the trial Judge was biased, and failed to appear in court despite issuance and service of hearing notice on them. Consequently, the trial Judge, upon the application of the Respondents, foreclosed the Appellants from further cross-examining the Respondents’ witnesses, and closed the defence of the Appellants, owing to their persistent absence from court. Thereafter, judgement was delivered in favour of the Respondents, and all the reliefs sought were granted.
Dissatisfied with the decision of the trial court, the Appellants filed an appeal to the Court of Appeal, which court dismissed the appeal for lacking in merit. The Appellant further appealed to the Supreme Court.
Issue for Determination The Appellants filed their Notice of Appeal, with two grounds of appeal. They however, distilled three issues for determination from the two grounds of appeal filed. The third issue posed by the Appellant, was not distilled from or tied to any of the grounds of appeal filed. The Respondents on the other hand, distilled two issues for determination of the appeal. The second issue challenged the competence of the third issue, formulated by the Appellants. The court found that, based on the settled position of law, that an issue not distilled from any of the grounds of appeal, is incompetent; the court struck out the third issue formulated by the Appellants, and the second issue of the Respondents challenging the competence of the said issue.
The Supreme Court determined the appeal based on the surviving issues of the Appellants and the Respondents thus:
Whether the learned Justices of the Court of Appeal adequately considered the entire record of appeal, in determining the issue of denial of fair hearing to the Appellants at the trial court, given the peculiar nature of the circumstances that arose during the trial.
Arguments Counsel for the Appellants submitted that, the Appellants were denied fair hearing during the proceedings before the trial court, because they were forced to stop appearing and participating in the trial, owing to the atmosphere of animosity and hostility which characterised every interaction between counsel for the Appellants and the trial Judge. Counsel did not deny service of hearing notice for the proceedings on them, but justified their decision not to attend court on the basis that, the atmosphere in court was very heated and that given such condition, the Appellants decided to wait for the decision of the Chief Judge of Rivers State, who was seised of their application requesting a transfer of the suit to another Judge of the High Court. Counsel reasoned and argued that, the decision of the Court of Appeal was erroneous, in that it merely considered the record of proceedings of the trial court and the judgement given in the suit, in arriving at the decision that there was no record of the animosity, hostility, ill feeling and altercations that took place between the learned trial Judge and counsel for the Appellants, during the trial. He urged the court to hold that, the written complaint of the Appellants to the trial court and to the Chief Judge, formed part of the record of appeal, and same should be critically considered in the determination of the likelihood of bias and the reason for the unwilling decision of the Appellants, to stop attending trial. He relied on the decision in ALAKE v ABALAKA (2002) FWLR (Part 88) 934, in support of his submission that bias or likelihood of bias covers a wide range of circumstances, including expressing hostile opinion or hostility to any of the dramatis personae in the matter before the court.
Countering the submission above, counsel for the Respondents argued that, fair hearing does not mean that a party must be heard, but that a party must be given an opportunity to be heard – OGUNSANYA v THE STATE (2011) 12 NWLR (Part 1261) 401 at 429. He stated further that, a party who was accorded an opportunity of being heard, but failed to utilise such opportunity, cannot be heard to complain of breach of fair hearing – S & D CONSTRUCTION CO. LTD v AYOKU (2011) 13 NWLR (Part 1265) 487 at 509. On the allegation of bias, counsel submitted that, such wild allegation was not contained in the record of appeal, and so, the Court of Appeal was right to hold that the unchallenged record of appeal, remains sacrosanct. He argued that, the Appellants’ letter on pages 60 and 61 of the record of appeal, did not give any vent to the Appellant’s allegation of denial of fair hearing, because there was no proceedings on 18/04/2004 as referred to in the letter, and that the letter is not unequivocal evidence of denial of fair hearing to the Appellants.
Court’s Judgement and Rationale The Apex Court quoted the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999, on the guaranteed right of a person to fair hearing in the determination of his civil rights and obligations. Their Lordships then reiterated that, fair hearing in essence, means giving equal opportunity to the parties to be heard in the litigation before the court, and that where parties have been given equal opportunity of being heard, a complaint of denial of fair hearing becomes inconsequential – SHYLLON v ASEIN (1994) 6 NWLR (Part 353) 670. Quoting the dictum of ADEMOLA, CJN in ISIYAKU MOHAMMED v KANO NATIVE AUTHORITY (1968) 1 ALL NLR 423, the Supreme Court held that, the true test of fair hearing is the impression of a reasonable person who was present at the trial, whether from his observation, justice has been done in the case. In this case, counsel for the Appellants stated clearly in their Brief of Argument, that the Appellants and counsel stayed away from the trial despite the service of hearing notice on them. Counsel were given ample opportunity to be heard, but they decided to stay away from court because they had written a complaint to the Chief Judge, and were awaiting his response. The Chief Judge did not give a directive, for them to stay away from court. It is clear therefore, that the Appellants denied themselves a hearing, by their decision to refrain from attending proceedings.
The Appellants alleged bias of the learned trial Judge as the reason for staying away from court, and relied on the letter found on page 60-61 of the record of appeal. Interestingly, the incident which counsel described took place on 18/04/2004, and upon which he founded the allegation of bias, cannot be traced to the record of appeal, as there was no sitting on the said date. More so, the Appellants did not challenge the record of proceedings in the way and manner prescribed by the Rules of Court, in view of the serious error/omission. This failure leaves the record sacrosanct, as it is presently constituted. It follows that, the Appellants failed woefully to show evidence of bias by the learned trial Judge against them, even by the document they relied on.
Concluding with the apt holding of court in MIRCHANDANI v PINHEIRO (2001) 3 NWLR (Part 701) 557 at 573, their Lordships posited that where a party indulges in dilatory tactics, as the Appellants were doing at the trial court, it cannot be said, that such a party is aiming at a fair hearing, rather, that party is using that process, to defeat justice being done to the opposing party. In such a case, a Judge or court should have enough courage, not to lend weight to such act of filibustering, and should be firm in refusing unnecessary applications for adjournments.
The court found that there is no merit in the appeal and that the lower court was right in dismissing same.
Appeal Dismissed.
Representation E.K. Saidu, Esq. for the Appellants.
D.I. Iboroma with B. Iboroma for the Respondents.
Reported by Optimum Publishers Limited (Publishers of the Nigerian Monthly Law Reports (NMLR))
“.....WHERE A PARTY INDULGES IN DILATORY TACTICS...... IT CANNOT BE SAID, THAT SUCH A PARTY IS AIMING AT A FAIR HEARING; RATHER, THAT PARTY IS USING THAT PROCESS, TO DEFEAT JUSTICE BEING DONE TO THE OPPOSING PARTY....... A JUDGE OR COURT SHOULD HAVE ENOUGH COURAGE, NOT TO LEND WEIGHT TO SUCH ACT OF FILIBUSTERING, AND SHOULD BE FIRM IN REFUSING UNNECESSARY APPLICATIONS FOR ADJOURNMENTS”