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3PLR/2001/31 (CA)


NWLR (Pt. 371) 270











  1. P.O OKOLO



Danjuma Rango – for appellant.

A.A Ibrahim – for the 1st respondent.

S.I. Ameh – for the 2nd respondent.


CONSTITUTIONAL LAW – Right to fair hearing – purport of – section 36(1) of the constitution of the Federal Republic of Nigeria considered.

FAIR HEARING – Right to fair hearing – purport of – section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria considered.

PRACTICE AND PROCEDURE – Addresses by counsel – whether can be dispensed with



ZAINAB A.BULKACHUWA (Delivering the leading judgment): This case originated at the High Court, Minna, where by a writ of summons dated the 28th day of September, 1995 the appellant then the plaintiff claimed against the respondents.


(1)     A declaration that there existed a contract agreement between the plaintiff and the first defendant, which contract the first defendant has breached;


(2)     Refund of the balance sum of N530,000 (Five Hundred and Thirty Thousand Naira), being balance of the purchase price to be paid by the first defendant to the plaintiff for the house bought by the former from the latter as special damages;


(3)     The plaintiff avers that by virtue of the fundamental breach of the agreement by the first defendant, he has suffered inconvenience and untold hardship;


(4)     The plaintiff is therefore claiming from the first to sixth defendants jointly and severally the sum of N20,000,000 (Twenty Million Naira only) as general damages for the inconvenience and hardship.


After series of interlocutory application and amendments of pleadings, five out of the six defendants were dropped as parties. The 2nd respondent in this appeal was joined as a party interested and became the 2nd defendant. The appellant testified and called three witnesses while the two witnesses testified for the defence.

The case as presented by the appellant was to the effect that on the 1st of March, 1993, he bought a house in Suleja town from one Obi Onyechefule through Mallam Ibrahim Peri Almajiri at the cost of N450,000 in the presence of two of his witnesses. Three days thereafter he sold the house to the 1st respondent who was his solicitor, then, at the cost of N550,000. the 1st respondent made a part payment of N20,000 to the appellant promising to pay the balance later. When he refused to pay the balance claiming he had already bought the house for N320,000 and had made payment to the original owner the appellant took him to court.

The case for the respondents was that the 2nd respondent bought the house from the owner through her brother, the 1st respondents, a counsel at the cost of N320,000 and paid in two installments of N100,000 and N220,000 respectively.

The trial Judge after hearing the parties found for the respondents dismissing all the appellant claim. The appellant dissatisfied with that decision has now appealed to this court granted on 3/3/98 substituted them with four additional grounds of appeal. The grounds of appeal shown of their particulars are produced below;


(1)     The judgment is against the weight of evidence;


(2)     The learned trial Judge erred in law when he denied plaintiff fair hearing;


(3)     The learned trial Judge erred in law when he failed to properly evaluate the adduced evidence before him which led to a miscarriage of justice;


(4)     The learned trial Judge misdirected himself in law when he held “I find the plaintiff’s conduct in bringing this action to be criminally greedy”. He made a N100,000 out of other peoples sweat yet he was not satisfied;


(5)     The learned trial Judge erred in law and on the fact when he awarded the sum of N15,000 as cost against the plaintiff/appellant.


From these grounds of appeal the appellant has formulated the following five issues for the determination of this court;

(i)      Whether in the circumstances of this case the appellant was given a fair hearing in accordance with S.33 of the Constitution;

(ii)     Whether there was failure by the learned trial Judge to properly evaluate the evidence before him, which occasioned a miscarriage of justice;


(iii)    Whether having regard to the pleadings and testimonies of the witnesses the findings of the learned trial Judge that the appellant was criminally greedy and that he made N100,000 out of other people’s sweat is correct;


(iv)    Whether the award of N15,000 cost by the trial Judge to the respondent was punitive in the circumstances of this case;


(v)     Whether the trial Judge was right in holding that the evidence of the two defence witnesses and the contents of exhibits A and B was a conclusive proof that the respondents paid for the purchase price of the house in dispute.


The two respondent adopted the issues formulated by the appellant in their respective briefs and based their arguments therein, so this appeal is to be determined on the issues formulated by the appellant. The 1st respondent raised a preliminary objection in his brief of argument on the contention that grounds four and five of the appeal are incompetent as leave which is required by law has not been obtained on the authority of Cross River State Newspaper v. Oni (1995) NWLR (Pt. 371) 270 and Ntoe Ansa v. Chief Asuquo Isie (1999) NWLR (Pt. 610) 277 being mixed grounds of law and fact urged us to strike them out. The appellant did not reply on that submission. Generally, leave must be obtained from an appellate court before grounds of fact or mixed law and fact can be argued on appeal.


Where no such leave is obtained the grounds are said to be incompetent and liable to be struck out – Mangoro v. Garba (1999) 10 NWLR (Pt. 624) 555. The Supreme Court had laid down the guides to the classification of grounds of appeal in Mangoro v. Garba (Supra) at pages 568 – 569.


“1.     Where the court is being invited to investigate the existence or otherwise of certain facts upon which the award of damages to the respondent was based, such a ground of appeal is a ground of mixed law and fact.


  1. A ground of appeal which challenges the findings of fact made by the trial court or involves issues of law and fact can only be argued with the leave of the appellate court.


  1. Where the evaluation of facts established by the trial court before the law in respect thereof is applied is under attack or question, the ground of appeal is one of mixed law and facts.


  1. Where evaluation of evidence tendered at the trial court is exclusively questioned, it is a ground of fact.


  1. A ground of law arises where the ground of appeal shows that the court misunderstood the law or misapplied the law to the proved or admitted facts.”


A careful study of the two grounds shows that ground 3 is complaining about the finding of the trial Judge on the conduct of the plaintiff where he was alleging that the plaintiff was criminally greedy in attempting to make N100,000 out of other peoples sweat. The particulars of error on that ground shows that the transaction between the parties was contractual and nowhere was it shown on the pleadings or evidence that the plaintiff criminally made N100,000. These findings of the trial court are based on the facts of the case and therefore fall within the contemplation of the above guidelines. The appellant, on the examination of the records before us, has not sought or obtained the leave of this court to argue same. They are therefore incompetent. The preliminary objection is accordingly upheld and the two grounds of appeal are hereby struck out. Issues Nos 3 and 4 based on them and all arguments therein are similarly struck out. That leaves issue 1,2 and 5. Issue one is on fair hearing while issues 2 and 5 are on the evaluation of evidence. I will take them together. It was submitted for the appellant on issue that the right to address the court by counsel of both parties in a litigation is fundamental until such right is waived by counsel. That the appellant was not granted fair hearing by the court when the trial court precluded appellant’s counsel from examining DW1 on his identity and did not give his counsel the right to address the court. He cited Abilawon Ayisa v. Olawoye Akanji AND 6 Ors. (1995) 7 SCNJ 254. Ayani Ebak Obodo v. Skaffor Olumu AND 1 or (1993) 3 NWLR (Pt. 59) 117 in support of his contention.

In his reply on that issue the 1st respondent contended that the appellant was given a fair hearing by the trial court as he was given the opportunity to give evidence and cross examine defence witnesses. On addresses he submitted that none of the counsels in the suit addressed the court, that the absence of address did not stop the court from arriving at a just decision based on the evidence before it.


It is the submission of the 2nd respondent that from the printed record before this, court the appellant was heard by the lower court, in that he testified, tendered such documents as he thought necessary, examined and re-examined his own witness and cross-examined all defence witnesses. That any contention to the contrary is not borne by the records and should be discountenanced. He further submits that address by counsel no matter how perfect or strong can never replace evidence there on record and cannot therefore lead to a different decision assuming it was given. That where there is overwhelming evidence before the trial court, failure to address would not affect the decision of the court relying on Niger Construction Ltd. v. Chief A.O. Okugberu 1987 11-12 SCNJ 133.


The printed records which is before us shows that the trial before the lower court started on 6/2/96, all the three parties were represented by counsel (page 41), appellant testified and was led by his counsel (page 41-43) and tendered two documents exhibits A-B. After he was cross-examined by the two opposing counsels, his counsel did not re-examine him (Pg. 45). His witnesses were led in evidence by his counsel (pages 45- 52) Then his counsel M. Kakamba closed his case on 14/8/96. Two witness testified for the defendants and both were cross-examined by the appellants counsel (pages 53-60). I have painstakingly gone through the record book to see whether in the course of trial, the right of the appellant to fair hearing was in any way infringed. Fair hearing as enshrined in S.36(1) of 1999 Constitution means that a party is entitled to be heard, and to be given an opportunity of being heard by either a court or tribunal or any competent authority before a decision is taken.


In the instant case, the appellant has been given the opportunity of being represented by a counsel of his choice, allowed to give and call evidence, tender documents, and cross-examine defence witness. He cannot therefore in the above circumstances contend that he had been denied fair hearing. There were no addresses by counsel in the printed records prior to the delivering of the judgment. The facts of this case are straight forward, each of the parties have presented their cases and tendered relevant documents in support of their case. There was therefore no miscarriage of justice when the trial Judge reached his decision on the evidence before the court without addresses of counsel- Niger Construction Ltd. v. Chief A.O. Okugbieni (1987) 11/12 SCNJ 133 – A court can dispense with trial address where the facts of the case are straight forward. I am not convinced that the appellant had been denied fair hearing by the trial court and hereby resolve the 1st issue against him.


As I had mentioned earlier, issues two and 5 are all on the evaluation of evidence before the court below. The appellant had in his pleadings made the following averments;


  1. That the first defendant purchased a house valued at N550,000 (Five Hundred and Fifty Thousand Naira) from the plaintiff sometimes in the year of 1993 under an agreement to pay instalmentally for the period of that year.


  1. That only N20,000 (Twenty Thousand Naira) was paid by the plaintiff as part payment of the total purchase price with the remaining standing balance yet to be paid to the plaintiff which is N530,000 (Five Hundred and Thirty Thousand Naira Only)


These averments were denied by the respondent in their respective pleadings. The parties having joined issues and the appellant having alleged has to prove his claim. In his testimony, the appellant said that the sale of the house was oral between him and the 1st respondent. While on the other hand the respondents adduced credible evidence in support of their averment that they bought the house in issue from its original owner DW1 Obi Onyechefule for N320,000 and paid for it. The trial Judge assessed the evidence before him; and believed the testimony of the respondents as against that of the appellant – Mogaji v. Odofin (1978) 4 SC 91; Onowhosa v. Odiuzou (1999) 1 SCNJ 13. The finding of a trial court was based on the facts before it. Normally an appellate court does not interfere with the findings of fact of a trial court as long as these findings are supported by evidence and are not shown to be perverse – Omoregie v. Edo (1971) All NLR 282, Oholo v. Uzoka (1978) 4 SC 77; Jov v. Dom (1999) 9 NWLR 620. In the circumstances this court will not interfere with the findings of fact made by the trial court as it is based on credible evidence before it.
On the whole, this appeal lacks merit and it is hereby dismissed. Cost of N1,000.00 is awarded to each of the respondents.

MUHAMMAD SAIFULLAHI MUNTAKA-COOMASIE, JCA:I have had the advantage of reading in draft the judgment read and delivered by my learned Lord, Bulkachuwa JCA, I agree with the said judgment and adopt the reasons for the judgment as mine. I too hold that the appeal lacks merit and it is hereby dismissed by me. I endorse the Orders as to costs.
Appeal dismissed.


ALBERT GBADEBO ODUYEMI, JCA:I have had the privilege of reading in advance, the judgment just delivered by my Lord. Zainab Adamu Bulkachuwa, JCA. I agree with her Lordship’s reasonings and the conclusion which I adopt as mine. I too, hold that the appeal lacks merit and I dismiss it.
I endorse the order as to costs.



Abilawon Ayisa v. Olawoye Akanji AND Ors. (1995) 7 SCNJ 254.
Ayani Ebak Obodo v. Skaffor Olumu AND 1 Or. (1993) 3 NWLR (Pt. 59) 117.
Cross River State Newspaper v. Oni (1995) NWLR (Pt. 371) 270.
Jov v. Dom (1999) 9 NWLR 620.
Mangoro v. Garba (1999) 10 NWLR (Pt. 624) 555.
Nigeri Construction Ltd. v. Chief Okugbieni (1987) 11-12 SCNJ 133.
Ntoe Ansa v. Chief Asuquo Ishie (1999) NWLR (Pt. 610) 277.
Okolo v. Uzoka (1978) 4 SC 77.
Omoregie v. Edo (1971) All NLR 282.
Statute referred to in the judgment
Section 36(1) of 1999 Constitution.


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