OGBE & ORS v. OZUE

CITATION: (2017) LPELR-42883(CA)

In the Court of AppealIn the Enugu Judicial Division

Holden at Enugu

ON WEDNESDAY, 10TH MAY, 2017Suit No: CA/E/173A/2009

Before Their Lordships:

AHMAD OLAREWAJU BELGORE Justice, Court of AppealFATIMA OMORO AKINBAMI Justice, Court of AppealPAUL OBI ELECHI Justice, Court of Appeal

Between1. EMMANUEL OGBE2. GREGORY OGBE3. MATHEW OGBE(For and on behalf of Ogbe sub-family of UmudimExtended family of Umunnowu Village, Agulu)

- Appellant(s)

AndCHRISTIAN OZUE(For and on behalf of Umudim family ofUmunnowu Agulu excepting the 1st to 3rdDefendants)

- Respondent(s)

RATIO DECIDENDI

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1. APPEAL - GROUND(S) OFAPPEAL: Effect of a ground ofappeal from which no issue fordetermination is formulated"It is noteworthy to observe that theissues formulated for determinationof this Court in the Appellants' Briefof Argument cover only grounds 1 to4 of the grounds of appeal. Nothingis said about the remaining groundsof appeal (grounds 5 to 7). The lawis very clear on this. It simply meansthat the Appellants have abandonedthose three grounds in respect ofwh i ch no i s sues have beenformulated. Accordingly, grounds 5,6 and 7, having been abandoned,a re hereby s t ruck ou t . "Pe rBELGORE, J.C.A. (P. 14, Paras. D-F) -read in context

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2. A P P E A L - L E A V E O FCOURT/LEAVE TO APPEAL:Guiding principles in an applicationfor leave to appeal"It is very clear that when leave isrequired to appeal, the applicationfor such leave must be filed and thegrant of same must be done by thelower/trial Court within the time soprescribed, that is 14 days. SeeSection 25 (2) of the Court of AppealAct, 2004 (as amended). Even if theapplication is filed within time butcould not be taken by the trial Courtwithin 14 days, that Court lacks thejurisdiction to grant the leave andsince that Court cannot extend timeto seek leave to appeal to the Courtof Appeal, the only option open to itis to strike out or dismiss theapplication."Per BELGORE, J.C.A. (Pp.21-22, Paras. E-A) - read in context

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3. PRACTICE AND PROCEDURE -ADJOURNMENT: Whether the grantor refusal of an application foradjournment is at the discretion ofCourt/Judge and how such discretionshould be exercised"Adjournment of case is at thediscretion of the trial Judge which heexercises judicially and judiciously,having the interest of all the partiesb e f o r e h i m a n d h i s o w nconveniences in mind. No one partydictates the pace and speed of theproceedings. The Judge is themaster of his own Court."PerBELGORE, J.C.A. (P. 20, Paras. C-E) -read in context(2

017)

LPELR

-4288

3(CA)

AHMAD OLAREWAJU BELGORE, J.C.A. (Delivering the

Leading Judgment): This is a consolidated appeal arising

from the decision of Hon. Justice M. I. Onochie of the High

Court of Anambra State delivered on the 12th of May,

2006, wherein the plaintiff in suit No. A/198/96 instituted

an action in a representative capacity for himself and on

behalf of the descendants of Ogbe Obikili sub family of

Udmudim formally, Umunnowu Village, Agulu against the

defendants also in a representative capacity that is for

themselves and as descendants of Dim Onowulu family of

Umunnowu village, Agulu claiming a declaration of title to

Ana Iyiolu land, damages for trespass and an order of

perpetual injunction restraining the defendants from

committing further acts of trespass on the said land.

The defendants filed a cross action suit No. A/197/97 also

in a representative capacity for themselves and as

representing Umudim family of Umunnowu Village, Agulu

against the plaintiff and some other members of Ogbe

family who were sued in a representative capacity that is

for themselves and as representing Ogbe sub family in

Umudim extended family in Umunnowu Village Agulu

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having the same declaratory claim on the title to land in

Ana Iyiolu land, damages for trespass and order of

perpetual injunction restraining the defendants from

further trespass.

Pleadings were filed and exchanged by the parties.

Thereafter the suits were consolidated for hearing and

upon the conclusion of hearing parties filed and adopted

their respective final addresses.

The learned trial Judge dismissed the plaintiff claim in suit

No. A/198/96, now Appellant while he was satisfied the

plaintiffs in suit No. A/197/97 now Respondents proved

their title to the land in dispute and the Judgment was

given in their favour and awarded the sum of N300,000.00

as spec ia l damages for t respass aga ins t the

defendants/Appellants.

Dissatisfied with the two decisions the Appellant appealed

to this Court vide an amended Notice of Appeal dated 3rd

day of June, 2016 and filed the same day, upon the

following seven (7) grounds.

GROUND (1) ERROR IN LAW

The learned trial Judge erred in law when it closed the case

of the Plaintiffs/Appellants without due cause and or regard

to their predicaments, which was brought to the attention

of the Court

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GROUND (2) ERROR IN LAW

The learned trial Judge erred in law when he failed to

exercise his discretionary power judicially and judiciously

to re-open the case of the Plaintiffs/Appellants closed by the

Court on 26th day of January, 2006 thereby denying the

Appellants fair hearing.

GROUND (3) ERROR IN LAW

The learned trial Court erred in law when it refused the

application of the plaintiffs on 26th day of January, 2006 for

adjournment to enable them to call the next Plaintiffs’

witness and this amounted to breach of fair hearing.

GROUND (4) ERROR IN LAW

The learned trial Court erred in law when despite the fact

that the Plaintiffs and their counsel were not aware of the

fixture of 8th day of May, 2006 and that no hearing Notice

was issued to them proceeded with the hearing of the

defence, in the absence of the plaintiffs and their counsel.

GROUND (5) ERROR IN LAW

The learned trial Court erred in law when it allowed the

defendants to address the Court orally instead of filing the

final written address and serving same on the plaintiffs in

accordance with the Rules of Court.

GROUND (6) ERROR IN LAW

The

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learned trial Court erred in law when it held that, it is not

the custom and tradition in Agulu that people who are

involved on any matter cannot themselves make enquires

over the subject matter.

GROUND (7) ERROR IN LAW

The Judgment of the Court is against the weight of

evidence.

Briefs of Argument were filed, exchanged and adopted.

These include Appellants Brief of Argument dated 24th

November, 2016 and deemed filed on 29th November, 2016

and Respondents Brief of Argument dated 6th December,

2016 and filed on 8th December, 2016.

In the Appellants Brief, learned counsel for the Appellants

submitted three (3) issues for determination in this appeal,

to wit:

(1) Whether the refusal of the Appellants’ application

for adjournment to call their remaining witnesses by

the trial Court is not a breach of their fundamental

Rights to fair hearing in the circumstances of this

case?

(2) Whether the learned trial Judge was justified

when he refused the Appellants application to re-open

their case closed suo motu on the 26th day of

January, 2006, considering all the peculiar

circumstance of this case?

(3) Whether the Appellants

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were entitled to their fundamental Right to fair

hearing to cross-examine the Defendants’ witnesses

and whether their constitutional Right were breached

by the trial Judge by taking the evidence of DW2,

DW3 and final address same day in their absence and

that of their solicitor?

On the first issue, the learned counsel submitted that their

inability to call their remaining witnesses was due to the

death of PW1, late Mr. Anthony Ozue, and the condition of

the 1st Appellant which all other remaining witnesses

suspected to be connected with the evidence PW1 gave in

favour of the Appellants and in view of which all other

witnesses ran away. He referred to page 181 of the record

and stated how his reason for an adjournment was refused

and his case was closed suo motu. He concluded that the

ground of his application for an adjournment was that the

Appellants’ PW1, Mr. Anthony Ozue and the 1st Appellant

among others were dragged to the village hall by some of

their opponents under the disguise of religious crusade and

they were beaten to comma and left to die and in fact PW1

died.

Learned counsel submitted therefore that the sanctity of

the

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provision of Section 36 of the 1999 Constitution of Nigeria

as amended guaranteeing fair hearing cannot be trampled

upon by the learned trial Judge for the reason that the

matter has suffered trod constructive adjournment under

which those adjournment were sought and granted. He

placed reliance on following cases: Okereaffia Vs. Agwu

(2008) 12 NWLR (Pt.1100) Pg. 165 at 174 Ratio 16;

Unibiz Nig. Ltd Vs. Commercial Bank Credit Lyonnais

Ltd (2003) 6 NWLR (Pt. 816) 402 at 432 C-H; Nwocha

Vs. MTN (Nig) Comm. Ltd (2008) 11 NWLR (Pt.1099)

at 439; Progress Bank Plc Vs. Contact Point Holding

Ltd (2001) FWLR (Pt. 52) at 2093; ANPP V. INEC &

ORS (2004) 7 NWLR (Pt. 871) 16 at 48 D-E.

He also relied on the Provision of Section 36 of the 1999

Constitution of the Federal Republic of Nigeria (As

amended).

Learned Counsel urged this Court to resolve issue No. 1 in

the negative and consequently allow ground 1 of the

appeal.

On issue No. 2, learned counsel submitted that the refusal

of the Appellants’ Application to re-open their case by the

trial Court was an arbitrary and capricious exercise of the

discretion which only did not lead to

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miscarriage of justice but also to a gross violation and

breach of Appellants’ constitutional guaranteed Right to

fair hearing. Therefore, according to the counsel, learned

trial Judge did not exercise his discretion judicially and

judiciously to achieve the Justice of the matter. He relied on

the following cases:

Nacb Ltd Vs. Obadia (2004) 4 NWLR (pt. 863) 326 at

330; Nkwocha Vs. MTN (Nig) Comm. Ltd (Supra);

Ekpenetu Vs. Ofegbi (2012) 15 NWLR Pg. 276;

Ndukauba Vs. Kolawo (2000) 4 NWLR (Pt. 411);

Awoniyi Vs. Registered Trustees of Amorc (2000) 10

NWLR (Pt. 676) Pg 522; Ogbonna Vs. Ukaegbu (2005)

17 NWLR (Pt.954) Pg. 432; Alsthorm SA (1968)

SCNLR 558 and Zakari Vs. Nigerian Army (2000) 5

NWLR (Pt. 478).

The learned counsel respectfully urge this Court to declare

the refusal of the Appellants’ application to re-open their

case by the trial Court a breach of their right to fair

hearing and resolve the issue in the negative and sustain

the Appellants ground 2, allow the appeal on that ground

and set aside the Judgment of the Court below for being

null, void and of no effect.

On issue three, the learned counsel submitted that on the

8th of

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May, 2006, that the Court took the evidence of DW2, and

DW3 in chief in the absence of the Appellants and their

Solicitor. The trial Judge by not issuing a hearing notice or

adjourning to the next outstanding date, did not offer the

Appellants who were not in Court the opportunity to cross-

examine the witnesses of their adversary. The Court went

contrary to the Provision of the rules to order parties to

render their final address orally and took the defendants’

address that same day and adjourned to 12th of May, 2006

for Judgment which date originally was fixed for

continuation of hearing.

Counsel submitted further that non issuance of hearing

notice on the Appellants by the Honourable trial Court after

hearing the evidence of DW1 in chief to offer them the

opportunity to cross-examine their adversary’s witnesses

and denying them right to final address was a serious

omission by the Court which not only occasioned grave

miscarriage of justice, but also violated and breached their

fundamental Right to fair hearing and thereby shut the

Appellants out of hearing of the case in the Court below.

Learned counsel placed reliance on the following

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authorities: Ekpenetu Vs. Otogebi (Supra); Atiku vs.

Yar’adua (2008) 33 (Pt.2) N.S.C.Q.R. at 688 – 689;

Intercontinental Bank Plc V. Onwuka (2009) 8 NWLR

(PT.1144) Pg. 462 at 467; Mankanu Vs. Salman

(2005) 4 NWLR (Pt.915) Pg. 270; Udukauba Vs.

Kolawo (Supra); Akabogu V. Akabogu (Supra); and

Okonkwo Vs. Okonkwo (1998) 10 NWLR (Pt. 571) 554.

He urged this Court to resolve issue No. 3 in the negative

and prayed that the Appellant ground 4 in the Notice of

Appeal be accordingly allowed.

Learned counsel finally urged this Court to address the

injustice and allow this appeal so that the parties can be

heard on the merits with equal opportunities.

In the Respondents’ Brief of Argument, learned counsel for

the respondents submitted four issues for determination.

(1) Whether the refusal of the Appellants application

for adjournment to call their remaining witnesses by

the trial Court is a breach of Appellants Fundamental

Right to fair hearing in the circumstances of this

case?

(2) Whether the learned trial Judge was justified

when he refused the appellants application to re-open

their case closed suo motu by the Court on the

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26th of January, 2006, considering all the particular

circumstances of this case?

(3) Whether the Appellants were entitled to their

Fundamental Right to fair hearing to cross-examine

the defendants’ witnesses and whether their

constitutional right were breached by the trial Judge

by taking the evidence of DW2, DW3 and final address

same day (08/05/2006) in their absence and that of

their solicitor.

(4) Whether any alleged Fundamental Right of

Appellants is superior to that of the Respondents in

view of the Respondents cross action hearing for

speedy Justice in the same consolidated suits and

being tried by same Court?

On the first issue, the learned counsel submitted that

unnecessary adjournment cannot be used as a shield to

delay the hands of justice and speedy trials. There must be

an end to litigation. He submitted further that where no

useful purpose will be served by adjourning the suit, a trial

Court as in the instant case exercised its discretion rightly

in refusing an adjournment which was designed to delay

the proceedings. He submitted that the brutal incident used

by the adversary as reason or excuse for the adjournment

did not

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only affect them, but it affected all males in Umudim family

of the parties. He referred to page (54-156 of the record

particularly paragraphs 20-31 therein). He concluded that

the Appellants were only using the crises to buy time.

He referred the Court to the case of Salu Vs. Egeibon

(1994) NWLR Pt. 348 at 23; Ajiseni Vs. DPP (2002)

FWLR (Pt.122) 88, and Ndabo Nig. Ltd Vs. UBN PLC

(2009) 13 NWLR (Pt. 1158) 256 ref. to 279 Para A-C.

He submitted further that Appellant Counsel abandoned

the Court without any letter of adjournment stating reason

for their absence and that the plaintiffs were in Court till

when the Judgment was delivered in their presence. He

submitted on this that to decide whether the principle of

fair hearing has been breached, the crucial point to

consider is not whether any injustice was done to any of the

parties due to want of hearing but whether the party or

parties was or were afforded opportunity to be heard.

He relied on the following authorities:

Augustine I. Odigwe V. Judicial Service Commission,

Delta State (2011) 10 NWLR (Pt. 1255) Pg. 254 at 283

Para. C –D; News Watch Comm. Ltd V. Atta (2006) 12

NWLR

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(Pt. 993) 144 (P. 289) Para E-F; and Abeki Vs Ambiro

(1961) ALL NLR (Pt. 2) 368.

On the 2nd issue counsel submitted that litigants should be

up and doing with regards to their matter/cases before the

Court, it is not the law that Court should wait for litigants

at their convenience to jump in and out of a matter.

Counsel submitted further that there is no injustice in

closing the case of the plaintiffs/Appellants who were told

at the inception to put their witnesses on subpoena but did

not and that they never applied for the recall of any

witnesses for the purposes of cross examination.

On issue three, learned counsel submitted on this issue that

Appellants Fundamental Rights to fair hearing were not

breached by the trial Court when it took the evidence of

DW2, DW3, and final address same day in the absence of

the Appellants and their counsel because they were aware

of the date and the pendency of the suit. But they only

chose to absent themselves from the Court. Due to the

ruling the Court gave, which became functus officio over

reopening, their cases closed in their presence on the 26th

of January, 2006. He referred to page 183 lines 20-23 of

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the record. He placed reliance on the following authorities.

Njideka Ezeigwe Vs. Chief Sir Benson Chuks Nwawulu

(2010) 4 NWLR (Pt. 1183) pg. 174 at 207 Para D – E;

Osun State Independent Electoral Commission & Ors

Vs. Action Congress & Ors (2010) 19 NWLR Pt. 1226

Pg. 339 Para A –D; Magna Maritime Service Vs. Oteju

(2005) 14 NWLR (Pt. 945) 517 P.616 Para G – H;

Imasuen Vs. University of Benin (2010) 3 NWLR

Pt.1182 Ukwuyok Vs. Ogbulu (2010) 5 NWLR (Pt.

1187); and Mirchandani Vs. Pinhevo (2001) 3 NWLR

(Pt.701) 557.

Counsel finally submitted that where a party to a suit has

evidently been accorded every reasonable opportunity of

being heard and for no just cause whatsoever refuses or

neglects to attend the sitting of the Court, he is deemed to

have voluntarily abandoned his case or defence and cannot

thus complain of breach of denial of fair hearing.

On issue four, learned counsel submitted that issue as to

fundamental Right applies to both parties to the suit before

the Court for trial. In the same way issue of fair hearing

applies to the parties equally.

He placed reliance on the following cases as he urged this

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Court to resolve the issue in favour of the Respondent:

Folbod Invest. Ltd Vs. Alphal Merchant Bank Ltd

(1996) 10 NWLR (Pt. 478) 344; S & D Construction

Co. Ltd Vs. Ayoku (2003) 5 NWLR (Pt.813) 278;

Abubakar Vs. INEC (2004) 1 NWLR (Pt. 854) 207;

SCOTT EMUAKPOR Vs. Ukavbe (1979) 1 SC 8;

Oyeyipo Vs. Oyinloye (1987) 1 NWLR (Pt. 50) 356;

Omo Vs. J.S.C (2000) 12 NWLR (Pt. 682) 444; Usani

Vs. Duke (2006) 17 NWLR (Pt.1009) 610; and ANPP

Vs. Rec. Akwa Ibom State (2008) 8 NWLR (Pt.1090)

453 referred to (Pt. 346) Para-E-H.

The learned counsel respectfully urged this Court to

dismiss the appeal and uphold the Judgment of the Court

below in its entirety.

It is noteworthy to observe that the issues formulated for

determination of this Court in the Appellants’ Brief of

Argument cover only grounds 1 to 4 of the grounds of

appeal. Nothing is said about the remaining grounds of

appeal (grounds 5 to 7). The law is very clear on this. It

simply means that the Appellants have abandoned those

three grounds in respect of which no issues have been

formulated. Accordingly, grounds 5, 6 and 7, having been

abandoned, are hereby struck out. (See Paragraph 3.01

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of the Appellants’ Brief of Argument).

This appeal will be determined based on the issues, as

formulated by the Appellant.

ISSUE NO. 1

At the onset of this case before the lower Court, it was

adjourned to the 4th day of May, 2005; 5th day of May,

2005; and 11th day of May, 2005 for hearing. That Court

also ordered parties to put their respective witnesses on

subpoena and file issues for determination. This was at the

call-over on 5th day of April, 2005 and on that day the 4th

and 6th Plaintiffs were present in Court. O. J. Odo Esq.

appeared for the Plaintiffs, holding brief for O. C. Onyilofor

Esq.

On 4th day of May, 2005, Ike Ogu Esq. appeared for the

defendants asking for an adjournment on the ground that

he was not aware of the fixture for that day, and the case

was adjourned to the next day, 5th day of May, 2005. On

5th day of May, 2005, Ike Ogu Esq. was not in Court and

the learned trial Judge called on learned counsel for the

Plaintiff to open the Plaintiffs’ case which he did. PW1 gave

evidence in part and the case was adjourned to 11th day of

May, 2005, for continuation of hearing. On 11th day of

May, 2005, learned

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counsel for plaintiffs was not in Court but the 1st Plaintiff

was in Court. There was no letter excusing the absence of

the learned counsel. The case was further adjourned to

20th day of May, 2005. The defence counsel was in Court

on 20th day of May, 2005 while the Plaintiffs’ counsel wrote

a letter asking for an adjournment. The case was adjourned

to 4th, 8th and 21st day of July, 2005 for continuation of

hearing.

On 21st day of May, 2005, PW1 was cross-examined by

Chief O. B. Onyali, S. A. N., lead counsel for the defendants

and the case was further adjourned to 23rd day of

September, 2005, 14th day of October, 2005, 7th day of

November, 2005 and 8th day of November, 2005 for

continuation of hearing. On 7th day of November, 2005,

learned counsel for the Plaintiffs asked for an adjournment

saying that the PW1 was murdered and that the other

witnesses were afraid to come and give evidence, indeed,

the witnesses were on the run to save their lives. The

application for an adjournment was not opposed by learned

Senior Counsel for the defence and it was accordingly

granted. The case was adjourned to 20th day of January,

2006, 10th day February, 2006,

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15th day of February, 2006, 21st day of February, 2006,

and 24th day of February, 2006 for continuation of hearing.

On 26th day of January, 2006, learned counsel for the

Plaintiffs in the consolidated action wrote, again, asking for

an adjournment but this was opposed by learned counsel

for the defendants, making reference to the Practice

Direction No. 1 of 2005 which enjoined parties to put their

witnesses on subpoena. The Court did not find acceptable

the reason proffered for an adjournment and it refused to

grant the application. Thereupon, the Court asked the 1st

and 2nd Plaintiffs to proceed with the case by calling their

witness. 1st Plaintiff informed the trial Court that their

witnesses were not in Court and that they could not

proceed with the case. The Court suo muto closed the

Plaintiffs case and directed the defendants to open their

defence.

DW1 testified and the case was adjourned for continuation

of hearing to 10th day of February, 2006, 15th day of

February, 2006, and 24th day of February, 2006. On 15th

day of February, 2006, the Plaintiffs, by a notice of motion,

applied for leave to re-open their case and the learned

counsel for

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defence applied for an adjournment to enable them react to

the motion. The case was further adjourned to 21st day of

February, 2006 and 24th day of February, 2006 for

continuation of hearing. These two dates were the last two

dates to which the case was originally adjourned for

continuation of hearing.

The motion was taken on 21st day of February, 2006 with

the defence opposing same via a counter affidavit and a

written address. Ruling on the motion was delivered on

31st day of March, 2006 refusing the application for re-

opening of the Plaintiffs’ case and the substantive case was

further adjourned to 7th day of April, 2006, 8th day of May,

2006 12th day of May, 2006, and 19th day of May, 2006 for

continuation of hearing.

On 7th day of April, 2006, Plaintiffs’ counsel was not in

Court and the DW1 was called to complete his evidence in

Chief. The DW1 was not cross-examined but the Plaintiffs

filed two motions one for leave to appeal the ruling of 31st

day of March, 2006 and two, for stay of further

proceedings. The two motions were consolidated and heard

together and a ruling was delivered ex-temporal dismissing

the motions based on

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Section 25 (2) of the Court of Appeal Act (as amended)

which requires leave to be obtained within 14 days of the

ruling being sought to be appealed.

In the meantime, PW1 had testified on 21st day of

September, 2005 and was partly cross-examined. His

Cross-examination was completed on 23rd day of

September, 2005 and the case was adjourned to 1st day of

November, 2005, 7th day of November, 2005, and 8th day

of November, 2005.

When the case resumed for continuation of hearing on 8th

day of May, 2006, learned counsel for the Plaintiffs was not

in Court and he did not send a letter excusing his absence.

The case proceeded and DW2 gave evidence. The Plaintiffs

who were present in Court did not Cross-examine this

witness and the defence closed their case and addressed

the Court. The case was adjourned to 12th day of May,

2006 for Judgment. It is observed that after the ruling on

the two motions for leave to appeal and for stay of further

proceeding, learned counsel for the Plaintiffs in the

consolidated case leading to this appeal did no longer put

up appearances in the lower Court.

Judgment was delivered. Plaintiffs claim in Suit No.

A/198/1996 was

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dismissed while the claim in A/197/1997 succeeded. Appeal

in A/198/1996 is CA/E/173/2009 which is the current

appeal. The second appeal, CA/E/173A/2009 with three

Appellants emanated from Suit No. A/197/1997. The

current Appellant is 1st Appellant in Appeal No.

CA/E/173A/2009.

I have to go into their detailed narrations in order to

appreciate the nature of this appeal and the issues

formulated for determination by the parties hereto.

From the narratives here above it is crystal clear that the

Appellant herein is complaining about the trial Court not

proceeding at his own speed and at his own dictate.

Adjournment of case is at the discretion of the trial Judge

which he exercises judicially and judiciously, having the

interest of all the parties before him and his own

conveniences in mind. No one party dictates the pace and

speed of the proceedings. The Judge is the master of his

own Court.

The complaint here is that the refusal by the learned trial

Judge to grant the Appellant an adjournment to enable him

call the rest of his witnesses amounted to a breach of his

fundamental right.

My Lords, I beg to disagree with learned counsel for the

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Appellant that there is an infraction on the fundamental

right of the Appellant as to his right to fair hearing. I must

state unequivocally that this case has nothing to do with

the constitutional provisions on right to fair hearing. The

fact of the death of the PW1 does not operate to enable

learned counsel for the Appellant to be absenting himself

from the Court’s proceedings and from writing to the Court

asking for adjournment. After all, other parties on both

sides of the consolidated actions were attending Court

without let. They were not deterred from coming to Court

by the death of the PW1 and the alleged beating of the

Appellant.

Issue No. 1 is hereby resolved against the Appellant. The

fundamental right of the Appellant to fair hearing was not

breached by the trial Court in the circumstances of this

case.

ISSUE NO. 2

It is very clear that when leave is required to appeal, the

application for such leave must be filed and the grant of

same must be done by the lower/trial Court within the time

so prescribed, that is 14 days. See Section 25 (2) of the

Court of Appeal Act, 2004 (as amended). Even if the

application is filed within time

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but could not be taken by the trial Court within 14 days,

that Court lacks the jurisdiction to grant the leave and

since that Court cannot extend time to seek leave to appeal

to the Court of Appeal, the only option open to it is to strike

out or dismiss the application.

As to the refusal by the learned trial Judge to re-open the

Appellant’s case closed suo muto, it was late in the day for

him to re-open the case having taken the evidence of the

defendants, indeed, he is functus officio. The learned trial

Judge was justified when he refused to re-open the

Appellant’s case. I see nothing peculiar in the circumstance

of this case. No reasonable Tribunal will allow one of the

parties before it to hold it hostage and in the circumstance

of this case the learned trial Judge was justified to suo muto

close the case of the Appellant.

This issue is also resolved in the affirmative.

ISSUE NO. 3

From the narratives earlier given at the beginning of the

consideration of the issue No.1, it is clear that learned

counsel for the Appellant was aware of the case coming up

for continuation of hearing but he chose not to be in Court

on that

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date, DW2 and DW3 testified and the trial Court took the

counsel final address: the matter was adjourned for

Judgment. As it happened in respect of the DW1, learned

counsel for the Appellant was not in Court to cross-examine

DW2 and DW3. He now wants to know whether his clients

in the consolidated cases were entitled to their

fundamental right to fair hearing to cross-examine the

defendants’ witnesses and whether their constitutional

right were breached by the trial Judge by taking the

evidence of DW2 and DW3 and final address the same day

in their absence and that of their counsel.

To start with, the Plaintiffs and their counsel were aware

on 8th day of May, 2006 date and if they chose to be absent

from the Court, they cannot be heard to complain that their

constitutional right to fair hearing to cross-examine DW2

and DW3 has been breached. There is no law stopping the

learned trial Judge from taking the final addresses

immediately after the close of the case for the defence. If

what transpired on 8th day of May, 2006 had taken place

on a date in respect of which the Appellant and his counsel

were not aware, the story would have been different.

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But, both the Appellant and his counsel were aware of that

date. In the circumstance, they should have themselves to

blame for failure to cross-examine the defendants

witnesses.

This issue is resolved in the negative.

All the three issues having been resolved against the

Appellant, this appeal fails and it is accordingly hereby

dismissed, as lacking in merit.

The decision of the Anambra State High Court of Justice,

Awka Judicial Division, contained in the Judgment of

Honourable M. I. Onochie, J, delivered on the 12th day of

May, 2006 in Suit No. A/198/1996 is hereby affirmed.

Cost assessed at N60,000.00 is awarded in favour of the

Respondents.

FATIMA OMORO AKINBAMI, J.C.A.: I agree.

PAUL OBI ELECHI, J.C.A.: I agree.

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Appearances:

Ifeanyichukwu Obia, Esq. For Appellant(s)

Chief O.B. Onyali, SAN with him, Ike Ogu and K.A. Yakub For Respondent(s)

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