CASE SUMMARY OF:
Christopher Okoye & Anor v. Markus Elisha Mbaya (2020) - CA
by NSA PaulPipAr
AREA OF LAW
- Administrative Law
- Jurisdiction of Upper Area Court
- Fair hearing
- Delivery of judgements in absence of counsel
1) Christopher Okoye;
2) Moslac Nig. Ltd.
Markus Elisha Mbaya
Court of Appeal
LEAD JUDGEMENT DELIVERED BY:
Abdullahi Mahmudâ Bayero, J.C.A.
* FOR THE APPELLANT
- M.J. Ifegwu, Esq.
* FOR THE RESPONDENT
- C.K. Atiman, Esq.
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FACT (as relating to the issues)
This Appeal originated from the Adamawa State Upper Area Court No. 2 in case number UAC/24/CV/F1/23/2013 wherein the Respondent as Plaintiff before the trial Upper Area Court sued the 1st Appellant. On 6/11/2013, the Respondent/Plaintiff through his Counsel C. K. Atiman Esq., applied orally to join the 2nd Appellant. The application was granted. Two witnesses PW1 and PW2 testified for the Respondent/Plaintiff. The Appellant/Defendant did not present any witness. The trial Court entered judgment in favour of the Respondent.
Dissatisfied, the Appellants appealed to the lower Court.
The lower Court delivered its judgment on 19th December, 2016 in favour of the Respondent. Miffed with the judgment, the Appellants appealed to this Court by leave granted on 5th July, 2017.
1) Whether the Lower Court sitting on appeal was right when considering the provision of Section 12(a) of the Area Court Law of Adamawa State it held that the trial Upper Area Court had the jurisdiction to determine the Suit before it having regard to the status of the 2nd Appellant, a non natural person under the law?
2) Whether the lower Court sitting on appeal was right when it held that the subsequent proceedings of the trial Upper Area Court conducted without notice to the Appellants were not in breach of the Appellants' right to fair hearing under Section 36 of the Constitution of Nigeria?
3). Whether the lower Court was right when it dismissed the Appellants' Issue four submitted before it while holding that the Respondent proved his case before the trial Area Court despite the 2 material contradictions in the evidence of the two witnesses?
HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANTS BUT IN FAVOUR OF THE RESPONDENT.
i. In the instant case, a careful look at the record of proceedings of the trial Upper Area Court contained at Pages 4 - 30 of the Printed Record, the Appellants/Defendants consented and submitted to the jurisdiction of the trial Upper Area Court by participating in the proceedings through their Counsel Ehimikhua Esq., who appeared on their behalf and even cross-examined PW1 and PW2 the (Respondent/Plaintiff's witnesses). Section 12 (1)(c) Area Court Law (Cap 11) Laws of Adamawa State ,1987 was therefore complied with by the trial Upper Area Court. The lower Court was therefore right when it held that the Upper Area Court had the jurisdiction to determine the Suit.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANTS BUT IN FAVOUR OF THE RESPONDENT.
i. Page 16 of the Printed Record shows that when the Respondent/Plaintiff closed his case on the 17/12/13 the case was adjourned to 29/1/14 for defence. On the returned date, it was further adjourned to 18 4/03/14 for defence, again adjourned to 18/03/14, 29/4/14 and 5/06/14 for defence. On 5/06/14, it was adjourned to 29/09/14 and hearing notice ordered to be served on the Appellants/Defendants. On 29/09/2014 case was adjourned to 15/10/14. On the said date, Appellant/Defendant's Counsel applied for another date for defence. It was adjourned to 4/11/2014. On the returned date neither the Appellants/Defendants nor their Counsel was in Court and the Court adjourned the case to 18/11/14 for judgment. From 17/12/13 to 4/11/14 when the Upper Area Court adjourned for judgment is a period of almost a year but still the Appellants/Defendants were not able to present their defence.
The lower Court was therefore on a sound footing when it held in its judgment reflected on Page 72 of the Printed Record that the trial Court was right to foreclose the Appellants/Defendants after giving them several adjournments to enter their defence but failed to do so.
ii. In the instant case, the Appellants have not shown that the delivery of the judgment on a later date of 23/12/14 rather than the earlier date of 18/11/14 without hearing notice to them had occasioned any miscarriage of justice to them; or that the judgment which was delivered in open Court could have been otherwise if the Appellants or their counsel had listened to it.
3. ISSUE 3 WAS RESOLVED AGAINST THE APPELLANTS BUT IN FAVOUR OF THE RESPONDENT.
i. This Court observes that the evidence of PW1 was not discredited during cross-examination as shown on page 12 of the printed record.
ii. The lower Court held:- "On issue four, it is the contention of the Appellant that the Plaintiff/Respondent never prove his case. His argument was that under cross examination PW1 testified that he wrote the name of the 1st defendant as Christopher as given to him, and the name of the Engineer as Isaac; but PW2 testified that the name of the Engineer is Robinson, and there was no attempt to clarify the name Robinson Isaiah and Isaac and yet the Court relied on their testimonies. In my view, the fact that there was misdescription of the said Engineer whether the surname was Isaac or Isaiah did not change the substance of the claim of the Plaintiff/Respondent from the Defendants/Appellants. The claim of the Plaintiff/Respondent is clear. It was for services of machineries hired by the Defendant/Appellant which has not been settled for. For this reason, the Plaintiff/Respondent has proved his claim as required by law, moreover, the Defendants/Respondents did not offer any defence for these claims at the trial Court."
Section 12(1) (a) (b) of the Area Court Law (Cap 11) Laws of Adamawa State 1987;
Section 12(1)(a)(b) of the Area Court Law (Cap 11) Laws of Adamawa State 1987 is reproduced as follows:
S. 12(1). Subject to the provisions of this Edict and any other written Law, the following persons shall be subject to the jurisdiction of Area Courts: a) any person whose parents were members of any tribe or tribes indigenous to some part of Africa and the descendants of any such person; b) any person one whose parents was a member of such tribe; c) any other person in a cause or matter in which he consents to the exercise of the jurisdiction of the Area Court.
Umaru v. Tunga (2012) ALL FWLR (Part 607) 726 at 740 it was held that - "Where a Court created the enabling environment for fair hearing to all and a party did not take advantage of the environment, the fault is his and not that of the Court. In the instant case, where the Defendant failed to use the opportunity created by the trial Court to present his case the allegation of breach of fair hearing was discountenanced by the Court."
Veritas Insurance Company Ltd. v. Citi Trust Investment Ltd. (1993) 3 NWLR (Pt. 281) 363 this Court held: "Parties and/or their counsel sit in Court and listen to the judgment being delivered. They do not play any role beyond listening and at times taking down random notes in the course of the delivery of the judgment. Some do not take notes, they just listen and leave Court at the end of the judgment with the usual clich: 'as the Court pleases' even when the pleasure of the Court is not the pleasure of the party who lost the case."
Cotecna International Ltd. v. Church Gate (Nig.) Ltd. (2011) ALL FWLR (Pt. 575) 261 at 262, the Supreme Court held: "it would appear to me and I am of the view that the delivery of judgment earlier than scheduled date without notice to the Appellant will not nullify the judgment unless the Appellant show that it has resulted in a miscarriage of justice. The Appellant has not shown that any miscarriage of justice has occasioned because its counsel was not present when the judgment was read. It is not shown that if the Appellant counsel had listened to the judgment which was delivered in open Court, the decision could have been otherwise".
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It is trite that contradictions in the evidence of witnesses may not necessarily be fatal to a case especially when they are minor, and the judgment of a trial Court will not be reversed on appeal because there were contradictions in the evidence of witnesses, it must also be shown that the Court did not advert its mind to those contradictions. - Bayero, J.C.A. Okoye v. Mbaya (2020)
If the Court affords parties the opportunity to present their case before it, any party that fails to utilize such opportunity cannot complain of lack of hearing. - Bayero, J.C.A. Okoye v. Mbaya (2020)
The end of this brief.
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