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  • 2002-11-04
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Agbogu v. Adiche

REV. OBIORA OKEZIE AGBOGU

V

GEOFREY ADICHE

COURT OF APPEAL

( ENUGU DIVISION )

J. THOMPSON AKPABIO, JCA ( Presided and Read the Lead Judgment )

SULE AREMU OLAGUNJU, JCA

MUSA DATTIJO MUHAMMAD, JCA

CA/E/38/2000

WEDNESDAY, 27TH FEBRUARY, 2002

BIAS - Allegation of bias - Basis therefor

CONSTITUTIONAL LAW - Right to make final address by parties - Denial of - Effect on right to fair hearing

COURT - Adjournment - Application for - Discretionary power of court to grant - How exercised - What court must consider before granting an adjournment

COURT - Duty on not to visit sin of counsel on party

COURT - Judges - The maxim no man should be a Judge in his own cause -  Meaning of - Requirment of impartiality of Judges thereby in all the matters before them

FAIR HEARING - Breach of - Effect thereof - Who can complain of breach of fair hearing

FAIR HEARING - Connotations of fair hearing especially under section 33(1) 1979  Constitution - Whether synonymous with fair trial

FAIR HEARING - Ingredients of - What it entails - When requirement of is breached

FAIR HEARING - Meaning of - True test of

JUSTICE - Justice hurried or rushed - Whether a justice denied

MAXIM - ‘No man should be a judge in his own cause’ - Meaning of

PRACTICE AND PROCEDURE - Adjournment - Application for -

Discretionary power of court to grant - How exercised - What court must consider before granting an adjournment

PRACTICE AND PROCEDURE - Final address - Right to make final address - Denial of by trial court - Effect of on rule of natural justice -  Section 258(1) of the 1979 Constitution

PRACTICE AND PROCEDURE - Mistake of counsel - Duty on court not to punish litigant for same

WORDS AND PHRASES - ‘No man should be a judge in his own cause’ -

Meaning of

Issue:

Whether the learned trial Judge, by refusing appellant’s application for adjournment, closing the case of the defence unilaterally and proceeding to deliver his judgment immediately had not descended into the arena in favour of the respondent.

Alternatively

Whether the learned trial Judge observed the rules of fair hearing or fair trial having regard to his conduct of the proceedings generally and in particular his failure to allow the plaintiff reasonable opportunity to present his address before delivering his judgment.

Facts:

The plaintiff/appellant instituted an action against the defendant/ respondent at the Anambra State High Court for a declaration of entitlement to customary/statutory right of occupancy in respect of certain lands in dispute.

According to the plaintiff he was in occupation of the land in dispute as beneficial owner having bought the same from the customary land owner, the Dualo family in 1930. The purchase price was tendered along with the survey plan. In addition to the payment of the purchase price he also fulfilled all the customary and traditional formalities necessary for the customary transfer of land.

Sometime in May 1970, the defendant invaded the land in dispute with matchets and other fighting implements and set out to damage all the economic crops on the land and encroached up to the frontal foundation of plaintiff’s main building. Plaintiff complained to his customary landlords who invited the defendant to no avail. He subsequently reported the matter to the native authority in keeping with the Ogidi native law and tradition of exhausting all local remedies before going to court. Trial took place before the Ndichies at the end of which judgment was given. Plaintiff being dissatisfied with the judgment appealed to Igwe-Ogidi-in-Council. He eventually went to the High Court to institute this action.

At the High Court, after many days of hearing, case was adjourned for continuation of further cross-examination of defendant. Unfortunately, counsel who had been representing plaintiff all along failed to show up. Instead, another counsel appeared for the plaintiff and applied for adjournment on the ground that he did not have the case file. So he was unable to proceed with the cross-examination. The learned trial Judge ruled that the case must proceed that very day. He thereafter closed the cross-examination of the defendant, and ordered the defendant’s counsel to address the court, after which he adjourned for judgment the next day. In the judgment, he dismissed plaintiff’s claim and awarded defendant his counterclaim.

Dissatisfied with the judgment and the entire procedure, plaintiff appealed.