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Sule v. Ebune

HAJARA SULE

V

BENSON EBUNE

COURT OF APPEAL

( ABUJA DIVISION )

MUHAMMAD SAIFULLAHI. M. MUNTAKA-COOMASSIE, JCA ( Presided )

ZAINAB ADAMU BULKACHUWA, JCA ( Read the Lead Judgment )

ALBERT GBADEBO ODUYEMI, JCA

CA/A/115/2000

FRIDAY, 19 JULY, 2002

CONSTITUTIONAL LAW - Fair hearing - Right of a person to - Section 33(1)  of the Constitution of Nigeria  1979

COURT - Court of Appeal - Duty of when right to fair hearing is infringed

EVIDENCE - Statement of defence - Lack of evidence in support - Effect of FAIR HEARING - Fair hearing - When hearing can be said to be fair

FAIR HEARING - Right to fair hearing -  When infringed - Duty of Court of Appeal

LEGAL PRACTITIONER - Legal representation - Where counsel withdrew his legal representation in the absence of his client - Demands of natural justice - Whether doctrine of audi alteram  partem applicable

NATURAL JUSTICE - Legal representation in a suit - Withdrawal by counsel in the absence of his client - Demands of natural justice - Applicability of doctrine of audi alteram partem

PLEADINGS - Statement of defence - Effect of lack of evidence in support of

Issues:

1.            Whether the trial court was right to have proceeded to hearing after the withdrawal of the defendants counsel in the absence of the defendant.

2.            Whether it was proper to have proceeded to hearing and judgment in view of the defence of estoppel raised by the defendant.

Facts:

The respondent as plaintiff, sought declaration and order of court for exclusive customary and or statutory right of occupancy and immediate possession, occupation, use and enjoyment of the plot of land subject of the suit along with an interim and permanent injunction against the defendant, his agent or agents and servant or servants.

The appellant, as defendant, also claimed title to the land in dispute and raised the defence of res judicata.

On the hearing date (20/9/94) both parties and counsel were in court and the plaintiff’s counsel indicated they will commence hearing with the testimony of the plaintiff and call remaining witnesses later. The defendant’s counsel asked for adjournment as his brief had not been perfected. On the adjourned date (19/10/94), the plaintiff and both counsel were present while the defendant was absent. The defendant’s counsel however applied to withdraw from the matter and this was granted. The court on the same day heard the testimony of the plaintiff alone, case was closed and adjourned for judgment.

The judgment was delivered on the 30/11/94 with the declaratory reliefs sought granted.

The appellant was dissatisfied with this judgment and appealed to the Court of Appeal.