NIGER CONSTRUCTION LTD. V. OKUGBENU

• Pages: 1258-1264

1258



NIGERIAN SUPREME COURT CASES

[1987] 2 N.S.C.C.

NIGER CONSTRUCTION LTD. V. OKUGBENU

5

NIGER CONSTRUCTION LTD



APPELLANT

V

CHIEF A. 0. OKUGBENU



RESPONDENT



10

SUIT NO. SC 24/1986

SUPREME COURT OF NIGERIA

ESO,



J.S.C.

KAWU,



J.S.C.

OPUTA,



J.S.C.



15

AGBAJE,



J.S.C.

NNAEMEKA-AGU, J.S.C.

13th December, 1987

Appeals - Grounds of Appeal - To be based on issues of controversy - Appeal



20

against exercise of discretion - Attitude of appellate court - Concurrent findings

of fact by lower courts - Grant of leave to appeal outside statutory period

-

Nullity - Evidence - Unchallenged evidence - Effect on proof - Practice

and Procedure - Closing address - Purpose - When court can dispense with

-

Exercise of discretion to address - Duty of Court - Visit to locus in quo -



25

When undertaken.

ISSUES:

1.

Whether the failure of a trial judge to allow counsel to make a closing address

is fatal to the case.



30

2.

Whether the fact of not calling a plaintiffs counsel to address the court,

ipso

facto

means that the trial judge has prejudged the case.

3.

Whether leave to appeal can be granted after the statutory three months period

within which to appeal.

FACTS:



35

While engaged in the construction of a road, the defendant/appellant company

damaged the plaintiff's farm and uprooted his economic trees, rendering the land

useless for farming. The plaintiff thereupon instituted an action for compensation

and damages. Judgment was given for the plaintiff and he was awarded

N45,320.00 as compensation, N20,000.00 as damages and N2,000.00 costs. The



40

appellant appealed against the decision to the Court of Appeal, which dismissed

the award of damages, but upheld the rest of the judgment. Appellant further ap-

pealed to the Supreme Court, contending that the plaintiff's counsel was not called

upon to address the court, and that the trial judge failed to visit the

locus in quo.

The respondent cross-appealed out of time.



45

HELD:

1.

Failure of a trial judge to allow the plaintiff's counsel to give his final address,

though irregular in that he deprived the counsel of his right to address, is not

fatal to the case. A final address cannot make up for anything missing in the

trial itself, and thus no failure of justice was occasioned.



50

2.

The mere fact that the trial judge did not call upon the plaintiff's counsel to

address the court, does not mean that the trial judge had already prejudged

the issues in the case.