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T. M. Orugbo & Anor v. Bulara Una & Ors (2002) - SC


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icon CASE SUMMARY OF:


T. M. Orugbo & Anor v. Bulara Una & Ors (2002) - SC


by PaulPipAr
icon TAG(S)


- Fair hearing;
- In locus;
- Composition of the judge;
icon PARTIES


APPELLANT
1. T. M. ORUGBO 2. THOMPSON ADINI (For themselves and on behalf of Ureju Community);


v.


RESPONDENT
1. BULARA UNA;
2. TAGHANKOKO;
3. EYEWUOMA EGBEYIFO;
4. WILLIE PATAMINI;
5. GEORGE PATAMINI;
6. SHOEMAKER WILLIE;
7. ANTHONY;
8. ADAM;
9. AMAKURO EBOSA;
10. ROBERT BRADUNU;
11. FREDERICK BULARA.
icon CITATION


(2002) 9-10 S.C. 61;
(2002) LPELR-2778 (SC);
icon COURT


Supreme Court
icon LEAD JUDGEMENT DELIVERED BY:


Niki Tobi, JSC.
icon LAWYERS WHO ADVOCATED


* FOR THE APPELLANT
- Chief Debo Akande, SAN.


* FOR THE RESPONDENT
- Mr. D. O. Okoh
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icon FACT (as relating to the issues)


This case has passed through four courts: Koko District Customary Court, Warri Area Customary Court, Customary Court of Appeal, Asaba and the Court of Appeal, Benin Division. This is the fifth court. The plaintiffs, who are now the appellants in this court, in their Amended Claim, sought against the defendants/respondents jointly and severally for (1) a declaration of title of ownership of Olumagada, Uton-Ugboro, Ukpamaje and Abarumeji Villages in Ureju Town, (2) N100.00 general damages for trespass on the Ukpamaje land, and (3) perpetual injunction restraining the defendants, their servants and or agents from further acts of trespass upon the plaintiff's land. The Koko District Customary Court gave judgment for the appellants.


The Warri Area Customary Court, in a majority decision, dismissed the appeal from the Koko District Customary Court. In other words, that court affirmed the decision of the Koko District Customary Court.


The Customary Court of Appeal, Asaba allowed the appeal of the appellants/defendants in that court, thereby reversing the decisions of both the Koko district Customary Court and the Warri Area Customary Court. That court ordered a trial de novo by the Warri Area Customary Court. The Court of appeal dismissed the appeal from the Customary Court of Appeal, Asaba. Akpabio, JCA., coram Nsofor and Ige, JJCA., held that the respondents were denied fair hearing at the Koko District Customary Court.
Akpabio, JCA., said at page 203 of the Record: "From all that have been said above, there can be no doubt that the defendants/respondents did not receive a fair trial at the Koko District Customary Court. Not only was the trial Court not constituted in such a way as to ensure its impartiality as required under Section 33(1) of our Constitution of 1979, there were several breaches of the rules of natural justice of audi alteram partem, nemo judex, etc. In view of the foregoing, I am of the firm view that the Customary Court of Appeal was right in setting aside the judgment of the trial court on ground of unfair hearing, and ordering a trial de novo before the Warri Area Customary Court".


Dissatisfied with the judgment of the court below, the appellants appealed to this court.
icon ISSUE(S)


1. Whether the respondents were given a fair hearing at the trial?
icon ARGUMENTS OF PARTIES


* FOR THE APPELLANT
1. i. Submitted that since the trial Court was a Customary Court, rules of evidence are not strictly adhered to and that Court proceedings are conducted in an informal way as legal practitioners do not appear there.
ii. Learned Senior Advocate called the attention of the court to four decisions cited by the court below on fair hearing and argued that since all the cases are criminal cases, where the standard in favour of the accused is higher than in civil courts, they are not relevant. He also pointed out that the cases dealt with situations where the accused persons were not given a chance to have counsel or chance to conduct their defence, which was not the situation in this appeal.


*FOR THE RESPONDENT
1. i. Submitted that the Court of Appeal rightly held that the respondents were never given opportunity to reply to any of the allegations made against them by the appellants. He argued that although the cases used by the Court of Appeal are criminal cases, the principles enunciated and adumbrated are of universal application.
ii. Learned Counsel contended that the trial from which the appeal emanated is a civil trial in a Customary Court which is bound to comply with the fundamental doctrines of fair hearing.
iii. Learned Counsel submitted that an observer knowing and watching the calibre of the panelists will certainly go away with the impression that the court was not constituted in a manner as to secure its independence and impartiality. He maintained that the common law doctrine found in Constitutions and rules which forbids a judge to adjudicate over a matter in which he has a pecuniary, proprietary or filial interest is not only a good doctrine but it is also in accord with common sense.
icon HOLDING & RATIO DECIDENDI


[APPEAL: ALLOWED WITH COST]


1. ISSUE 1 WAS RESOLVED IN FAVOUR OF THE APPELLANT BUT AGAINST THE RESPONDENT.


RATIO:
i. Let me take here the issue of whether the amended claim was read, interpreted and explained in Ijaw to the respondents. Contrary to the submission of the learned Counsel for the respondents, the following is at page 8 of the Record: The motion supported by 3 paragraphs affidavit was read and explained to the defendants whereby the defendants appeared perfectly to have understood same. The spokesman of the defendants explained that he could not speak Itsekiri language perfectly well. He then appointed an interpreter, one Jonah Bunuzor, who was duly sworn as an interpreter to the defendants. I heard the motion read and explained to them. I raise no objection. Where lies the claim of learned Counsel for the respondents? I do not see it. I therefore dismiss it. The court below was in error to rely on the above in its finding that there was no fair hearing at the trial.
ii. Above all, there is nothing on the Record to show that the trial Koko District Customary Court refused an application by the respondents that all the other ten parties wanted to give evidence. Where then lies the breach of fair hearing? I do not see it. I therefore find that the court below was in error in holding that there was a breach of the fair hearing principle. That takes me to the spokesman issue. In traditional African societies, a spokesman is normally or usually appointed to present the case of the people or community. He plays a leadership role in the matter. He is usually the mouth-piece of the people or community. He speaks for them. He is their representative. There is merit in such traditional arrangement. First, it provides less room for contradictions. Second, it saves so much of litigation time. Although the procedure of spokesman is strange to the common law, it is not strange to customary law and the trial was by a Customary Court where the applicable law is customary law. Accordingly, I do not share the view of learned Counsel for the respondents on the issue. There is nothing in the Record to show that the court forced the spokesman on the respondents. It appears to me from the Record that the respondents freely chose their spokesman. It was when the spokesman complained that he could not speak the Itsekiri language fluently that an interpreter in the person of Jonah Bunuzor was appointed to do the interpretation, and that is correct procedure.
iii. It is clear from the above that the defendants were given opportunity by the trial court to cross-examine the witnesses of the appellants and they took the opportunity to cross-examine P.W.2, P.W.3 and P.W. 4. There was however no cross-examination in respect of P.W.1, apparently because there was no question from the respondents. Where lies the breach of the principle of fair hearing?
iv. In this matter, the Koko District Customary Court gave the parties equal opportunity to state their case at the locus and the parties made adequate use of the opportunity. This is clear at pages 20 to 22 of the Record. Both the appellants and the respondents took the court to inspect important features to lure or allure the court to their story of ownership. In my view, the court could not have done better in protecting the principle of fair hearing during the inspection of the locus. I do not think I should have done better too.
v. A party has a legal duty to prove his case relying on all relevant legal authorities. He need not wait for the adverse party on how he (the adverse party) proves his case before he embarks on proving his. And so the contention of the court below that if the Ijaws had heard of these books earlier, perhaps they might have been able to bring their historical books, with the greatest respect, is neither here nor there. As indicated above, a party must prove his case to the best of his ability. He should not wait or rely on how the opponent proves his case.
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icon NOTABLE DICTA


* PROCEDURAL
The provision which was in operation when the case was heard is Section 33 of the Constitution of the Federal Republic of Nigeria, 1979. The provision which is in operation now is Section 36 of the Constitution of the Federal Republic of Nigeria, 1999. Although the two Sections are similar, it is the provision of the 1979 Constitution that this court must turn to in this appeal. - Niki Tobi, JSC. Orugbo v. Bulara (2002)


In a civil trial, once the defendant gives evidence in defence of the claim, it is presumed that he has joined issues with the plaintiff and a failure on the part of the court to ask the defendant to formally plead to the claim does not vitiate or nullify the trial. It is only in criminal proceedings that failure on the part of the court to ask the accused to take a plea that vitiates or nullifies the proceedings. Courts of law and parties will not like to mix up the two separate procedures as they give rise to two separate and distinct results in our adjectival law. - Niki Tobi, JSC. Orugbo v. Bulara (2002)


There is no law known to me that all parties to an action must give evidence at the trial. Parties are free to pick witnesses they think can give cogent evidence in proof of their case. If the law had required all parties to give evidence, the court will be exposed, in some cases, to a village or community of witnesses and that will protract the litigation. - Niki Tobi, JSC. Orugbo v. Bulara (2002)


An appellate court has no jurisdiction to read into the Record what is not there and it equally has no jurisdiction to read out of the Record what is there. Both are forbidden areas of an appellate court, if one may use that expression. An appellate court must read the Record in its exact content and interpret it. Of course it has the jurisdiction to decide whether on the face of the Record and on the cold facts the decision was proper or not. - Niki Tobi, JSC. Orugbo v. Bulara (2002)


And what is more, the issue was raised in a dissenting judgment. A dissenting judgment, however powerful, learned and articulate, is not the judgment of the court and therefore not binding. The judgment of the court is the majority judgment, which is the binding judgment. - Niki Tobi, JSC. Orugbo v. Bulara (2002)


An obiter dictum does not decide the live issues in the matter; a ratio decidendi does. - Niki Tobi, JSC. Orugbo v. Bulara (2002)


The constitutional provision of fair hearing has no tribal insinuation of the composition of the bench vis-a-vis the tribes of the parties. A party should not be heard to complain that because he is not of the same tribe with member of the bench, he cannot have a fair hearing. That in my humble view, is the most invidious and incongruous approach to this very important legal principle. If the contention is correct, then most, if not all trials in our judicial system, must be faulted because the composition of most courts may not agree with the tribes of the litigants. - Niki Tobi, JSC. Orugbo v. Bulara (2002)


A court of law has no legal duty to confine itself only to authorities cited by the parties. It can, in an effort to improve its judgment, rely on authorities not cited by the parties. Historical books or whatever books are authorities and the Koko District Customary Court was free to make use of them in its judgment. That per se is not breach of fair hearing; not even the twin rules of natural justice. - Niki Tobi, JSC. Orugbo v. Bulara (2002)


A party has a legal duty to prove his case relying on all relevant legal authorities. He need not wait for the adverse party on how he (the adverse party) proves his case before he embarks on proving his. And so the contention of the court below that if the Ijaws had heard of these books earlier, perhaps they might have been able to bring their historical books, with the greatest respect, is neither here nor there. As indicated above, a party must prove his case to the best of his ability. He should not wait or rely on how the opponent proves his case. - Niki Tobi, JSC. Orugbo v. Bulara (2002)


It is the law that the Customary Courts by the nature of their constitution or composition are not bound to follow strict and technical rules of evidence. They need not comply with the provisions of the Evidence Act in the judicial process. See S. 1(4) of the Evidence Act, Cap. 62. Once an appellate court comes to the conclusion that from the totality of the procedure adopted, substantial justice was done, the court must uphold the proceedings. - Niki Tobi, JSC. Orugbo v. Bulara (2002)


There is no rule of law which says that the Defendants must be present let alone plead in a civil matter. It is enough that he is served with the writ of summons and is given an opportunity to present his defence. That was done in this case. - Ogundare, JSC. Orugbo v. Bulara (2002)


* SUBSTANTIVE
Once an appellate court comes to the conclusion that there is a breach of the principle of fair hearing, the proceedings cannot be salvaged as they are null and void ab initio. After all, fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision. Accordingly, where a court arrives at a correct decision in breach of the principle of fair hearing, an appellate court will throw out the correct decision in favour of the breach of fair hearing. - Niki Tobi, JSC. Orugbo v. Bulara (2002)


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... The reasonable man should be a man who keeps his mind and reasoning within the bounds of reason and not extreme. And so if in the view of a reasonable man who watched the proceedings, the principle of fair hearing was not breached, an appellate court will not nullify the proceedings. - Niki Tobi, JSC. Orugbo v. Bulara (2002)


It is a very fundamental principle of law (fair hearing) which the parties and the courts are free to apply in relevant situations in relation to the facts of the case and not in a vacuum. Accordingly, where the facts of the case reject the principle, the court will have no competence to force the principle of law on the case. - Niki Tobi, JSC. Orugbo v. Bulara (2002)


The major essence of inspection of locus is to bring to the fore the evidence of both parties without bias. It is a forum to allow parties show the court important boundaries and landmarks to enable the court decide the issue or issues in dispute. Where parties are given equal opportunity at the locus to step boundaries and landmarks, show other evidence in their favour, an appellate court will not throw out the findings of the trial court, particularly of a Customary Court, merely because it failed to comply with technicalities here and there relating to the inspection of the locus. - Niki Tobi, JSC. Orugbo v. Bulara (2002)


It has become a fashion for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all their inadequacies at the trial court. But it is not so and it cannot be so. The fair hearing constitutional provision is designed for both parties in the litigation and the court as the umpire, so to say, has a legal duty to apply it in the litigation, in the interest of fair play and justice. The courts must not give a burden to the provision which it cannot carry or shoulder. I see that in this appeal. Fair hearing is not a cut-and-dry principle which parties can, in the abstract, always apply to their comfort and convenience. It is a principle which is based and must be based on the facts of the case before the court. Only the facts of the case can influence and determine the application or applicability of the principle. The principle of fair hearing is helpless, or completely dead outside the facts of the case. - Niki Tobi, JSC. Orugbo v. Bulara (2002)


The principle of fair hearing is helpless, or completely dead outside the facts of the case. - Niki Tobi, JSC. Orugbo v. Bulara (2002)
The end of this brief.


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