IFEANYI PETERKIN OKEREKE & ANOR V. HON. MATTHEW IBE & ORS. (2008)

IFEANYI PETERKIN OKEREKE & ANOR V. HON. MATTHEW IBE & ORS.

(2008)LCN/3001(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 10th day of December, 2008

CA/PH/EPT/225/2008

RATIO

IMPLICATION OF A DENIAL OF AN ADJOURNMENT

It is trite that a denial of an adjournment, resulting in the breach of the right to fair hearing of a party, is undoubtedly bad and outrageous. This is so, because the denial of fair hearing inflicts suffering, pain, and untold hardship upon those who ordinarily rely on the administration of justice and the rule of law, rather than resorting to primitive private self help in ventilating their grievances against one another. There is no doubt that the delay of justice often leads to a denial of justice. From time immemorial, people have protested at the delay of justice and often counted it as a grievous wrong, and rather unbearable. Shakespeare describes how delay of justice exhausts finances, patience, courage, and hope, et al. See HAMLET, ACT III, scene 1; BLEAK HOUSE, chapter 1. Lord Denning, MR (of blessed and most remarkable memory) was refuted to have remarked that:
To put right this wrong, we will in this court do all in our power to enforce expedition; and, if need be, we will strike out actions when there has been excessive delay. This is astern measure. But is within the inherent jurisdiction of the court. And the Rules of court expressly permit it. It is the only effective sanction they contain…
The principle upon which we go is clear, when the delay is prolonged and in excusable, and is such as to do grave in justice to one side or the other or to both, the court may in its discretion dismiss the action straightaway, leaving the plaintiff to his remedy against his own solicitor who has brought him to this plight, Whenever a solicitor by his in excusable delay, deprives a client of his cause of action, when a solicitor does not issue a writ in time, or serve it in time, or does not renew it properly. We have seen regret to say, several such cases lately, Not a few are legally aided. In all of them the solicitors have, I believe, been quick to compensate the suffering client; or at least their insurers have, so the wrong done by the delay has been remedied as much as can be, I hope this will always be done. See The Due Process of Law, 1980 Edition by Lord Denning, MR at page 93. Per IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A

FAIR HEARING: THE RIGHT TO CROSS-EXAMINE A WITNESS

The right to cross-examine a witness is within the rubric of the right to fair hearing guaranteed under Section 36 (1) of the 1999 Constitution. It is a material ingredient of the right to fair hearing. See the case of Ogolo v. Fubara (2003) 11 NWLR (Pt.831) 231 at 262 B-C where the apex Court held thus:
“Cross examination is a right available to parties in litigation and it cannot be taken away.” (Underlining supplied for emphasis).
It needs to be stressed at this juncture that the maxim audi alteram partem, is to the effect that both sides to litigation must be heard before a decision is made. See Peoples Redemption Party v. INEC (2004) 9 NWLR (pt.877) 24 at 43. The right to fair hearing does not stop with the parties being present in Court it includes a right to be heard at any material stage of the proceeding. See Ndukauba v. Kolomo (2005) 12 WRN 32 at 55 – 56. Lines 40 – 45. Per TIJJANI ABDULLAHI, J.C.A

IMPLICATION OF A JUDGMENT OR ORDER GIVEN IN BREACH OF A FUNDAMENTAL RIGHT TO FAIR HEARING

The law is trite that any judgment or order given in breach of the fundamental and constitutionally guaranteed right to fair hearing is a nullity and is liable to be set aside either by the court that gave it or by an appellate court. See: A.G. Rivers State V. Ude (2006) 7 NWLR (1008) 436 at 456 C – E: Okafor V. A.G. Anambra State (1991) 6 NWLR (200) 659 at 678 F – G: Bamgboye V. University of Ilorin (1990) 10 NWLR (622) 290; Deduwa V. Okorodudu (1976) 9 – 10 SC 329. Per KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN Justice of The Court of Appeal of Nigeria

IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria

Between

1. IFEANYI PETERKIN OKEREKE
2. PEOPLES DEMOCRATTC PARTY (PDP) Appellant(s)

AND

1. HON. MATTHEW IBE
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) & 152 ORS Respondent(s)

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): On the 14th day of April, 2007 the 2nd respondent, Independent National Electoral commission (INEC) conducted elections into the Abia State House of Assembly. The 1st appellant and 1st and respondent, along with other candidates contested the election as representatives of the Umunneochi State constituency. The 1st appellant contested the election on the platform of the 2nd appellant, the Peoples Democratic Party (PDP), while the 1st respondent was the candidate of the Peoples Progressive Alliance (PPA). At the conclusion of the election, the 2nd – 5th respondents returned the 1st respondent as duly elected having scored the highest number of lawful votes cast.
The appellants challenged the declaration and return of the 1st respondent at the Governorship and Legislative Houses Election Tribunal holden at Umuahia, Abia State by a petition dated and filed on 14th May 2007. They sought the following reliefs:
a. That the election in Lokpanta, Lokpaukwu, Leru/Lekwesi, Cattle Market, Eziama Ugwu and part of Eziama Agbo Wards (units 001 and 003) was invalid by reason of corrupt practices and or non-compliance with the provisions of the Electoral Act.
b. That the said Hon. Matthew Ibe (1st respondent) was not duly elected or returned; and that the petitioner herein was duly elected and ought to have been returned having scored a majority of the lawful votes cast at the election.
c. In the alternative that the election in Umunneochi State constituency be nullified and a bye election conducted by the 2nd respondent. (See page 9 of the record).
At the conclusion of the hearing and after considering the evidence and the addresses of learned counsel for the respective parties, the lower Tribunal delivered its judgment on 15th February, 2008 wherein it dismissed the petition and affirmed the declaration and return of the 1st respondent. (See pages 1048 – 1066 of the record). The appellants were dissatisfied with the decision and filed a notice of appeal containing six grounds of appeal.
The parties, in compliance with the rules of this Court duly filed and exchanged their respective briefs of argument. The appellants’ brief is dated 5/5/08 and filed on 7/5/08. The 1st respondent filed a notice of preliminary objection dated 23/5/08 and filed on 2/6/08. Arguments in respect of the preliminary objection were incorporated in the 1st respondent’s brief dated 23/5/08 and filed on 26/5/08. The 2nd – 153rd respondents, brief is dated 16/5/08 and filed on 19/5/08. The appellants’ reply brief to the 1st respondent’s brief is dated 4/6/08 and filed on 5/6/08.
Their reply to the 2nd – 153rd respondents’ brief is dated 23/5/08 and filed on 26/5/08.
We heard this appeal on 28/10/08. Learned counsel for the 1st respondent, A.O. Ugwa, Esq. applied to withdraw the notice of preliminary objection filed on 3/10/08. He also applied to withdraw the arguments canvassed in respect thereof in paragraphs 3.04 and 4.01 – 4.04 at pages 5 – 6 of the 1st respondent’s brief. Learned counsel for the 2nd – 153rd respondents, Chief E.E. Uwakwe, also applied to withdraw the arguments contained in paragraph 1 (h) at page 2 and paragraph 5 (c), (f), (g), and (h) at pages 11 – 12 of his brief.
The 1st respondent’s preliminary objection and the above mentioned paragraphs in the 1st respondent’s and 2nd – 153rd respondents’ briefs of argument were accordingly struck out. Consequently, learned counsel for the appellants, Nwabu M. Nwosu Esq., applied to withdraw paragraphs 2.1 to 2.1.12 at pages 1 – 4 of the reply to the 1st respondent’s brief and paragraphs 2.22 and 2.23 at page 7 of the 2nd – 153rd respondents’ brief. The said paragraphs of the reply briefs were equally struck out. Thereafter learned counsel for the appellants adopted his brief and the reply briefs to the 1st respondent’s and 2nd – 153rd respondents’ briefs. He applied that Ground 1 of the notice of appeal be struck out as no issue was formulated from it. He urged us to allow the appeal. Learned counsel for the 1st and 2nd – 153rd respondents adopted their respective briefs and urged us to dismiss the appeal.
In the appellants’ brief, the following two issues were formulated for the determination of this appeal:
1. Whether the Tribunal was right in not evaluating or properly evaluating the documentary evidence before it, which would have given impetus to its collation of the result of the election and which collation would have clearly shown that the Appellants’ won majority and whether this failure did not occasion a miscarriage of justice? (Grounds 2, 4 & 6).
2. Assuming Issue No. 1 is not resolved in favour of the Appellants, whether in all the circumstances of the proceedings before the trial Tribunal, the Appellants constitutional right to fair hearing was not breached which occasioned a miscarriage of justice? (Grounds 3 & 5).
The 1st respondent formulated the following two issues for determination:
1. Whether the Tribunal was right when it refused to embark on the computation or collation of results? (Grounds 2, 4 & 6).
2. Whether from the circumstances of the case the Appellants’ constitutional right to fair hearing was breached? (Ground 5)
The 2nd – 153rd respondents adopted the issues formulated by the Appellants. Upon close examination of the issues formulated by the Appellants and the 1st respondent, it is clear that they are substantially the same. The issues formulated by the 1st respondent are however more concise. The appeal shall be determined on the issues as formulated by the 1st respondent. The first issue is modified slightly to read:
“Whether the lower Tribunal was right when it refused to embark on the computation or compilation of results and whether such refusal occasioned a miscarriage of justice?”
As the appellants did not formulate any issue from Ground 1 of the notice of appeal the said ground is hereby struck out.
The second issue for determination raises the issue of fair hearing. The law is trite that any judgment or order given in breach of the fundamental and constitutionally guaranteed right to fair hearing is a nullity and is liable to be set aside either by the court that gave it or by an appellate court. See: A.G. Rivers State V. Ude (2006) 7 NWLR (1008) 436 at 456 C – E: Okafor V. A.G. Anambra State (1991) 6 NWLR (200) 659 at 678 F – G: Bamgboye V. University of Ilorin (1990) 10 NWLR (622) 290; Deduwa V. Okorodudu (1976) 9 – 10 SC 329. Although learned counsel for the appellants has raised issue no. 2 as an alternative to issue no. 1, there is no doubt that where it is established that the right to fair hearing was infringed, the entire proceedings are null and void. In the circumstances, a consideration of Issue no. 1 would become redundant.It is therefore my considered view that this issue must be resolved first before embarking on a consideration of the merits of the appeal, if necessary.
Issue No. 2
Whether from the circumstances of the case the appellants’ constitutional right to fair hearing was breached?
The circumstances that gave rise to the alleged denial of fair hearing as could be gathered from the printed record and from the briefs of argument of the respective parties are that hearing had commenced on the appellants’ petition before the lower Tribunal with the 1st appellant testifying as PW1 on 21/11/07. The petition was adjourned to 14/12/07 for further hearing. The lower Tribunal did not sit on 14/12/07 and proceedings were further adjourned to 21st January, 2008. On that day, although the 1st appellant was present, his lead counsel, Nwabu M. Nwosu Esq., wrote a letter to the lower Tribunal seeking an adjournment of the matter to 22/1/08 or any other date within the week, as he was appearing before this Court in an election appeal. (See pages 905 – 906 of the record). Learned counsel for the 1st respondent opposed the request for an adjournment and urged the Tribunal to foreclose the petition for want of diligent prosecution. Learned counsel for the 2nd -153rd respondents aligned himself with the submissions of learned counsel for the 1st respondent. After considering the submissions of learned counsel the lower Tribunal asked the 1st appellant whether he had anything to add. He replied in the negative, whereupon the lower Tribunal delivered its ruling refusing the application for adjournment. It closed the appellants’ case and called upon the two sets of respondents for their defence. Three witnesses, RW 1 – 3 then testified on behalf of the 1st respondent, while RW 4 & 5 testified on behalf of the 2nd – 153rd respondents. They identified their respective statements on oath, which were admitted in evidence and marked as exhibits accordingly. The witnesses were discharged. The two sets of respondents then closed their cases and the petition was adjourned for the adoption of written addresses and subsequently for judgment.
An application filed on 25/1/08 to set aside the ruling of 21/1/08, to allow the appellants to call their remaining witnesses and to recall the respondents, witnesses for cross-examination was heard on its merits and refused by the lower Tribunal on 30/1/08.
Learned counsel for the appellants submitted generally that the proceedings of a Court of Law or a Tribunal are governed by the provisions of the Constitution of the Federal Republic of Nigeria, 1999 and relevant statutes and rules of court. He went further to state that the Governorship and Legislative Houses Election Petition Tribunal is a creation of the 1999 Constitution, particularly section 285 (2) thereof. He submitted that proceedings of the Tribunal are regulated by:
i. The 1999 Constitution;
ii. The Electoral Act 2006, and the Schedule thereto;
iii. The Federal High Court (Civil Procedure) Rules 2000 by virtue of paragraph 50 of the First Schedule to the Electoral Act 2006;
iv. The Election Tribunal and Court Practice Directions 2007.
Learned counsel submitted that the 1st appellant who was present in court on 21/1/08 was not given an opportunity to proceed with the matter in the absence of his counsel or to cross-examine the respondents’ witnesses. He submitted that the right to call and cross-examine witnesses is a fundamental aspect of the principle of fair hearing guaranteed by Section 36 (1) of the 1999 Constitution. He referred to Ogolo V. Fubara (2003) 11 NWLR (831) 231 at 262 B-C; Njiokwuemeni V. Ochei (2004) 15 NWLR (895) 196 at 241: Peoples Redemption Party V. INEC (2004) 9 NWLR (877) 24 at 43. He submitted that the right to fair hearing includes the right to be heard at any material stage of the proceeding. He submitted that not only was the appellants’ case foreclosed, they were also denied the opportunity to cross-examine the respondents’ witnesses. He referred to page 895 lines 19 of the record. He referred to Ndukauba V. Kolomo (2005) 12 WRN 32 at 55 – 56 lines 40 – 5. He contended further that the right to fair hearing ought not to be sacrificed on the altar of expediency. He referred to: Olumesan V. Ogundepo (1996) 2 NWLR (433) 628 at 653 F: Ndukauba V. Kolomo (supra) at 56 lines 15 – 20.
Relying on Otapo V. Sunmonu (1987) 2 NWLR (58) 587 at 605 H and Ndukuauba V. Kolomo (supra), learned counsel submitted that the true test of fair hearing is “the impression of a reasonable person who was present at the trial, whether from his observation, justice has been done in the case.” He urged us to hold that the proceedings conducted on 21/1/08 were a nullity.
In reply to this issue, learned counsel for the 1st respondent submitted that election petitions are sui generis and that by paragraph 24 (1) of the First Schedule to the Electoral Act 2006 and paragraph 5 (7) of the Election Tribunal and Court Practice Directions 2007, proceeding in election petitions are deemed to continue from day to day to ensure due diligence in the prosecution of election petitions by the parties and the need for such petitions to be concluded within a reasonable time. He cited the case of Ngige V. Obi (2006) Vol. 18 WRN 33. Learned counsel submitted that up until 21/1/08 the appellants had been represented by a team of lawyers, namely, H. Balogu Esq., C.S.L. Nwosu Esq., Paul Nwabisi Esq., and, Max I. Njoku, Esq., with Nwabu M. Nwosu Esq. as the lead counsel. Learned counsel submitted that H. Balogu, Esq., represented the appellants on 20/9/07 and tendered all the documentary evidence on behalf of the appellants. That previously, on 15/11/07, Nwabu M. Nwosu Esq. sought and was granted an adjournment on health grounds. That the letter for adjournment written to the lower Tribunal on 21/1/08 did not explain the absence of the other counsel who had previously appeared with N.M. Nwosu, Esq., particularly H. Balogu Esq., who conducted the appellants’ case on 20/9/07. Learned counsel submitted that the appellants’ case was closed pursuant to paragraph 5 (7) of the Election Petition and Court Practice Directions 2007. He stated further that before the appellants’ case was closed the lower Tribunal asked the 1st appellant if he had anything to add and that he replied in the negative. He contended that the appellants were afforded an opportunity to proceed in the absence of their counsel but chose not to do so.
Learned counsel argued that the grant or refusal of an application for adjournment is entirely at the discretion of the court or Tribunal. On the exercise of discretion he relied on the case of Gabriel C. Ideh V. D.O. Onyejese & Anor. (1997) 8 NWLR (518) 610 ratio 1. He submitted that the rule of fair hearing is not whether injustice has been done but whether a party entitled to be heard before a decision is made had in fact been given an opportunity to be heard. He relied on the following authorities: Awe Odessa (No. 3) V. FRN & 6 Ors. (2006) Vol. 27 WRN 33 at 46 ratios 15; Bernard Amasike V. The Registrar – General Corporate Affairs Commission & Anr. (2006) Vol. 3 WRN 70 at 78 – 79; Prof. S. O. Abdulraheem (No.2) & 3 Ors. V. Prof. B.J. Olufeagba & 43 Ors. (2007) Vol. 2 WRN 116 at 130 – 131 ratio 7; Co-Operative & Commerce Bank (Nig.) Plc. V. Okpala & Anr. (1997) 8 NWLR (518) 673 ratio 19; Newswatch Communications Ltd. V. Alhaji Aliya Atta (2006) 34 WRN 1 at 8 ratio 7.
Learned counsel contended that there is ample evidence that the appellants were given an opportunity to be heard and that the lower Tribunal exercised its discretion judicially and judiciously. He urged us to resolve this issue against the appellants.Learned counsel for the 2nd – 153rd respondents submitted that the lower Tribunal properly exercised its discretion in the circumstances of this case. He argued that the application for adjournment was in respect of N.M. Nwosu Esq.’s absence only and did not explain the inability of other counsel who had previously appeared in the matter on behalf of the appellants to be in court on 21/1/08. He maintained that the 1st appellant was heard before his case was closed. He noted that in the letter for adjournment, the appellants’ counsel referred to the fact that he had been granted an adjournment by the same Tribunal in another petition for the same reason that he would be before this Court on 21/1/08, and submitted that learned counsel for the two sets of respondents herein were not parties to that petition.
He submitted that justice and fair hearing are for both parties and that the two sets of respondents would have suffered a great injustice if the adjournment were granted, having assembled their respective witnesses from different parts of the country at great expense. He submitted further that there is nothing on the record to suggest that the appellants were prevented from calling their witnesses or from cross-examining the respondents’ witnesses. He urged us to resolve this issue against the appellants.
In reply to the submissions on behalf of the 1st respondent and the 2nd – 153rd respondents, learned counsel for the appellants referred to the proceedings at pages 893 and 894 of the record and submitted that the question put to the 1st appellant by the lower Tribunal as to whether he had anything to ask was referable to the 1st appellant’s plea at the commencement of the proceedings that the lower Tribunal should not visit the sins of his counsel on him. Learned counsel argued that in that con his response could not be construed as a waiver of the appellants’ right to call further witnesses or to cross-examine the respondents’ witnesses. He urged us to resolve this issue in favour of the appellants.
I have given careful consideration to the submissions of the respective learned counsel for the parties and the record of proceedings of the lower Tribunal. As observed earlier in this judgment, the, issue of fair hearing is so fundamental that any proceedings conducted in the absence thereof, no matter how well determined, would be vitiated. The following facts are not in dispute:
i. That the hearing of the petition commenced on 27/11/07 with the evidence of the 1st appellant as PW1.
ii. That PW1 concluded his evidence in chief and cross-examination on that day.
iii. That the petition was adjourned to 14/12/07 for further hearing.
iv. That the lower Tribunal did not sit on 14/12/07 and the proceedings were adjourned off record to 21/1/08 for further hearing.
v. That on 21/1/08 learned counsel for the Appellants, N.M. Nwosu Esq. wrote to the Tribunal requesting an adjournment to 22/1/08 “or any other date within the week.”
vi. That the 1st appellant was physically present before the Tribunal on 21/1/08.
It is relevant at this stage to reproduce the proceedings of 21/1/08 before the lower Tribunal;
“The petitioner present.
A. O. Ugwa with G.U. Oleka, G.C. Anumba, O. Okey Egelle for the 1st Respondent.
E-E. Uwakwe with Chimdiya Nwahiri holding the brief of Sir. T. A. Nawmara for the 2nd to 153rd Respondents
Petitioner: I urge this Tribunal not visit the sins of counsel on me.
Ugwa: We apply the petition to be foreclosed for want of diligent prosecution. A team of lawyers led by M. Nwosu have been appearing in this matter particularly Balogu Esq. on the 20th of September, 2007, he conducted the pre trial session for the petitioner. Nothing is said on the letter on the absence of Balogu and other team of lawyers. Election petition is sui generis (sic) it deserves attention and diligence, and it is lacking in this case. We are prepared to continue, half of the people in this Court are our witnesses and have gone out.
They are the ones asking for an adjournment on our part we have never asked for an adjournment.
Uwakwe: I associate myself with the submission of my learned friend and apply under paragraph 5 (7) of the Practice Direction and hold that the petitioner has failed to conclude their case, especially when there were many instances of adjournment especially on 5th November, 2007 when the petition was adjourned. I urge this Tribunal to dismiss this petition.
Tribunal: Petitioner you have already pre-empted the Respondents do you wish to add anything?
Petitioner: No.
Tribunal: We have seriously considered the application for adjournment by the learned counsel for the Petitioner dated the 21st of January, 2008 namely today. In the said letter he referred to this Tribunal’s inadvertent adjournment of the petition to today.
We have noted that the learned counsel referred to the 9th of January, 2008 when this Tribunal adjourned petition No. ANS/NASE/EPT/45/07 to day (sic) and the counsel applied for 22nd of January, 2008 and we agreed, he now thought that when his case of 14th January, 2008 could not go on he applied for 22nd January, 2008. We believe we did not grant the said application which he made to this Tribunal’s Registry. In view of the foregoing we hold that the Petitioner’s counsel owe it as a duty to the Petitioner to ensure that a counsel from his Chambers appear to conclude the petitioners’ case. It is on record that on 20th September, 2007, H. Balogu appeared for the Petitioner and tendered documentary evidence on behalf of the Petitioner. The counsel did not deem it fit to explain the absence of Balogu who could have concluded the Petitioner’s case today in the absence of our approval for the adjournment he sought. It is for this reason that we uphold the submissions and prayers of the counsel to the two sets of respondents in this petition close the case for the Petitioner. We hereby close the case of the Petitioner and call on the Respondents to open their defence.
Signed
Hon. Justice Abdullahi Yusuf
Chairman
21/01/08.
Ugwa: I now call the 1st Respondent Hon. Matthew Ibe as RW1.
Tribunal: The witness sworn to (sic) by the Holy Bible to speak in English. My name is Hon. Matthew Ibe. I am a politician and a Member, House of Representatives representing Umunneochi Constituency I live at Obulo Ezeama in Umunneochi. Yes I filed a witness statement on oath on 17th July, 2007; do you wish to adopt same in evidence?
RW1: Yes I adopt same as my evidence in this petition dated 17th July, 2007.
Tribunal: The said sworn statement is hereby marked as exhibit AC.
Signed
Hon. Justice Abdullahi Yusuf
Chairman
21/01/08
Tribunal: As counsel to the Petitioner is absent we call on counsel to the 1st Respondent to call his next witness.” (Emphasis mine).
The appellants’ case was closed pursuant to paragraph 5 (7) of the Election Tribunal and Court Practice Directions 2007 (as amended). The paragraph provides:
5. (7) “Notwithstanding the provision of sub-paragraph (6) above, the Tribunal or Court may suo motu where it considers that either party fails to conclude its case within a reasonable time close that party’s case.” (Emphasis supplied).
There is no doubt that election petitions are sui generis. In other words they are in a class of their own governed by their own peculiar legislation. Having regard to the fact that the right of a party to occupy a particular political office for a specified term is being challenged, time is of the essence in determining such cases. The Electoral Act 2006 and in particular the First Schedule thereto as well as the Practice Directions 2007 have been enacted to ensure the expeditious disposal of election petitions. Hence the discretion granted to a Tribunal to close a party’s case where it is not being prosecuted diligently.
However, a court or Tribunal must always bear in mind its sacred and constitutional duty not only to hear and determine matters expeditiously but also to accord all the parties appearing before it a fair hearing. In the case of Alsthom V. Saraki (2005) 3 NWLR (911) 208 AT 229 D. the Supreme Court per Ejiwunmi, JSC held thus:
“Fair hearing according to our law envisages that both parties to a case be given an opportunity of presenting their respective cases without let or hindrance from the beginning to the end. It also envisages that the court or tribunal hearing the parties’ case should be fair and impartial without showing any degree of bias against any of the parties.”
The cases of: Elike V. Nwakwoala & Ors. (1984) 12 SC 301 and Isiyaka Mohammed V. Kano N.A. (1968) 1 ALL NLR 425, were cited with approval. See also: CEEKAY Traders Ltd. V. Gen. Motors Ltd. (1992) 2 NWLR (222) 132.
It must be borne in mind that the application before the lower Tribunal on 21/1/08 was for an adjournment to the next day, 22/1/08, enable the appellants continue with their case. It is clear from the record of proceedings reproduced above that the lower Tribunal also appreciated this fact when it observed that the absence of Balogu Esq., “who could have concluded the petitioner’s case today in the absence of our approval for the adjournment he sought,” was not explained in the letter seeking an adjournment. In their reaction to the application for an adjournment learned counsel for the respective respondents urged the lower Tribunal to refuse the application for adjournment and to close the petitioners’ case. It is correct that after the submissions of learned counsel the lower Tribunal asked the 1st appellant if he had anything to add. However, I am inclined to agree with learned counsel for the appellants that the 1st appellants’ response in the circumstances could not be construed to be a waiver of his right to further participate in the proceedings. This view is strengthened by the fact that at the very commencement of the proceedings for that day the 1st appellant had pleaded with the lower Tribunal not to visit the sins of his counsel on him. (See page 893 of the record).
There is no doubt that the grant or refusal of an application for adjournment is at the discretion of the court, which must be exercised judicially and judiciously, having regard to the relevant facts and circumstances of the case. Having exercised its discretion by refusing the application for adjournment the principle of fair hearing required that the 1st appellant be called upon to proceed with his case. In the event that he failed or refused to proceed, the lower Tribunal would have been right to close his case at that stage and to call upon the respondents for their defence. In the instant case the application for adjournment was refused and the appellants’ case closed simultaneously. I agree with learned counsel for the appellants that the 1st appellant was not afforded a hearing as to whether he was prepared to proceed with the petition after the application for adjournment was refused.
After the appellants’ case was closed, the respondents called their witnesses who tendered their written statements on oath. Notwithstanding the fact that the 1st appellant was physically present, the lower Tribunal, after the evidence of RW1 stated thus at page 895 lines 11 and 12 of the record:
“As counsel to the petitioner is absent we call on counsel to the 1st Respondent to call his next witness.”
The 1st appellant was not asked if he had any question for this witness, or indeed RW 2 to RW 5 who testified thereafter. He had a right to be heard even though his counsel was absent. There is no doubt in my mind that a dispassionate observer of the proceedings of 21/1/08 would have been of the view that the appellants’ right to fair hearing had been seriously compromised. In it’s zeal to conclude the proceedings expeditiously, the lower Tribunal overlooked the petitioners’ fundamental rights as guaranteed by Section 36 (1) of the 1999 Constitution. The Supreme Court in the recent case of: Ogli Oko Memorial Farms Ltd. & Ors. V. N.A.C.B. Ltd. Anor. (2008) Vol. 34 (Part II) NSCQR 1057 at 1080 E – F per Onnoghen, JSC, observed thus:
“Even though it is the desire of all involved in the administration of justice to uphold the principle which states that justice delayed is justice denied, it is equally unacceptable to encourage or do injustice in an attempt at speedy dispensation of justice. Justice may be slow sometimes but it will surely arrive at its destination.”
See also; Usani V. Duke & Ors. (2004) 7 NWLR (871) 116 at 156 D-E; Ndukauba V. Kolomo (supra) at 438 E-F, and the decision of this Court Angos Dide V. Ebiotu Seleiltimibi (2008) 15 NWLR (1110) 221 at 241-242 H-H; 245 B.D. As the Supreme Court further observed in Ogli Oko Memorial Farms Ltd. V. N.A.C.B. Ltd. & Anor. (supra) at page 1080 G, a little patience and care by the lower Tribunal would have saved time, energy and expense if it had called upon the 1st appellant to continue with his petition after the application for adjournment was refused and given him the opportunity to cross-examine the respondents’ witnesses. As noted earlier in this judgment, the principle of fair hearing is so fundamental that proceedings conducted without fair hearing are irredeemably tainted. The entire proceedings are rendered null and void. In addition to authorities earlier cited on the effect of lack of fair hearing, see also: Salu V. Egeibon (1994) 6 NWLR (348) 23: Adigun V. A.G. Oyo State (1987) 1 NWLR (53) 678. My inevitable conclusion in the circumstances is that the appellants’ second issue is meritorious. It must be and is hereby resolved in their favour.
Having found and held that the proceedings of the lower Tribunal were rendered a nullity by the lack, of fair hearing, this court lacks jurisdiction to consider the merits or otherwise of the first issue submitted to us for determination. In the final analysis the appeal is allowed. The judgment of the rower Tribunal, dismissing the appellants’ petition in petition no. ABS/SHA/EPT/19/07 delivered on 15th February, 2008 is hereby set aside. The petition is hereby remitted to the Governorship and Legislative Houses Election Tribunal Umuahia, Abia State to be tried de novo by a different panel constituted by the Hon. President of the Court of Appeal.
The parties shall bear their respective costs in this appeal.

TIJJANI ABDULLAHI, J.C.A: I have read before now the draft of the judgment of my learned brother, Kekere-Ekun, J.C.A just delivered with which I entirely agree. His Lordship has painstakingly treated both issues submitted to us for determination. However by way of support and emphasis, I add a few words.
Issue No. 2, submitted to us for determination is assuming Issue No. 1, is not resolved in favour of the Appellants, whether in all the circumstances of the proceedings before the trial Tribunal, the Appellants constitutional right to fair hearing was not breached which occasioned a miscarriage of justice? (Grounds 3 and 5).
Let me say from the onset that to answer this question posed (supra) recourse had to be made to what transpired at the lower tribunal, the day the Appellants sought for an adjournment of the proceedings based on the letter presented to it by his Counsel. The day needless to say, was 21/01/2007. The petition came up for continuation of hearing and for the Appellants to continue with the testimony of their witnesses. However, Counsel for the Appellants, Nwabu M. Nsowu Esq. made an application in writing because of his appearance at the Court of Appeal, Port Harcourt Division in CA/PH/EPT/351/2007: Okafo Okoriaffia & Anor v. Hon. Agwu U. Agwu & 175 Ors, which came up for hearing. The Tribunal despite having earlier granted the Counsel an adjournment in another matter ABS/NASE/EPT/45/07 went ahead to foreclose the Appellants by closing the case of the Appellants and proceeded to invite the Respondents to open their defence. See p. 893 – 895 line 2 of the record.
Not only that the trial Tribunal refused to grant the application for adjournment but the 1st Appellant who was present in Court was not given the opportunity to proceed with the matter in the absence of their Counsel. The right to call witnesses is a fundamental aspect of fair hearing. It is of no moment that the Appellants’ Counsel was absent. The moment the trial Tribunal made up its mind to discountenance the Appellants’ Counsel’s application for adjournment, it ought to have given the Appellants the opportunity to proceed to call their witnesses. The trial Tribunal failed to do so and which failure occasioned a miscarriage of justice.
Again, the trial Tribunal did not also grant the Appellants an opportunity to cross-examine the witnesses presented by the adversary – the Respondents. See p. 895 line 19 of the record where it is stated thus:
“Tribunal: As Counsel to the Petitioner is absent we call on the Counsel for the 1st Respondent to call his next witness.”
I am of the considered opinion that the record of the account given above clearly shows that the Appellants were not afforded any opportunity of cross-examination of the Respondent’ witnesses. The right to cross-examine a witness is within the rubric of the right to fair hearing guaranteed under Section 36 (1) of the 1999 Constitution. It is a material ingredient of the right to fair hearing. See the case of Ogolo v. Fubara (2003) 11 NWLR (Pt.831) 231 at 262 B-C where the apex Court held thus:
“Cross examination is a right available to parties in litigation and it cannot be taken away.” (Underlining supplied for emphasis).
It needs to be stressed at this juncture that the maxim audi alteram partem, is to the effect that both sides to litigation must be heard before a decision is made. See Peoples Redemption Party v. INEC (2004) 9 NWLR (pt.877) 24 at 43. The right to fair hearing does not stop with the parties being present in Court it includes a right to be heard at any material stage of the proceeding. See Ndukauba v. Kolomo (2005) 12 WRN 32 at 55 – 56. Lines 40 – 45.
Let me say at this stage that the right to fair hearing in Nigeria is constitutionally guaranteed by Section 36 (1) of the 1999 constitution, therefore it cannot be sacrificed on the altar of expediency. See Olumesan v. Ogunpedo (1996) 2 NWLR (pt. 433) 628 at 653 F; and Ndukauba v. Kolomo (supra) at p. 56 lines 15 – 20.
It is my considered view that what transpired at the sitting of the Tribunal on 21st January, 2008 did not accord with the true test of fairness and the judgment of the tribunal must be set aside.
For these reasons and the more detailed ones ably stated in the lead judgment, I too allow the appeal and abide by all the consequential orders made therein.

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A: I had read before now the lead judgment prepared and delivered by my learned brother, KEKERE- EKUN, JCA, the respective briefs of argument of the learned counsel, as well as the record of proceedings of the court below.
It is evident from the record of appeal, that the 14/5/07 was the date on which both Appellants filed a joint petition ABS/SHA/EPT/19/2007 in the lower tribunal against the Respondents, praying for the following reliefs:
(a) That the election in Lokpanta, Lokpankwu, Leru/Lekwesu, Cattle Market, Eziama Ugwu and part of Eziama Agbo Wards (Units 001 and 003) was invalid by reason of corrupt practices and or non-compliance with the provision of the Electoral Act.
(b) That the said Hon. Mathew Ibe (1st Respondent) was not duly elected or returned; and that the petitioner herein was duly elected and ought to have been returned having scored a majority of the lawful votes cast at the election.
(c) In the alternative that the election in Umunneochi state constituency be nullified and a bye election conducted by the 2nd Respondent.
Parties filed and served their respective pleadings. The trial of the petition commenced, resulting in the parties calling their respective witnesses therein. At the end of the said trial the lower tribunal, corum Abdullahi Yusuf, J; Chairman; C.O. Idahosa; A.L. Lawan; Sybil Nwaka & Adolphus Enebeli, JJ, delivered a judgment on 15/02/2008 to the effect, inter alia, thus:
There is no iota of evidence before us to show that the petition had discharged the onus on him to prove the criminal accusation beyond reasonable doubt. See HASHIDU V. GOJE (supra). From the forgoing we hold that the petitioner has failed to prove his case and the petition lacking in merit is hereby dismissed.The declaration and return of the 1st Respondent is hereby affirmed.
Dissatisfied with the said judgment, the Appellants filed their notice of appeal in the lower tribunal’s registry on 07/3/08 which was predicated on a total of six grounds of appeal. In compliance with the rules of this court, parties have filed and served their respective briefs of argument, including reply briefs. Most particularly, the Appellants have in the brief thereof filed on 07/5/08 prayed the court for the following reliefs:
5.3 Your Lordship are enjoined by the invocation of section 16 of the Court of Appeal Act to rehear the petition as all the material are before it and evaluate the evidence which the trial Tribunal failed to do.
5.4 We urge your Lordships to set aside the judgment of the trial tribunal and declare the 1st Appellant as duly elected having scored majority of lawful votes.
5.5 Alternatively, if the Honourable Court on the other hand determines that the Appellants have not established a case for a return, then make an order remitting the petition back for retrial before another panel of the Tribunal.
In the said brief, the Appellant learned counsel has formulated two issues for determination to wit-
1. Whether the Tribunal was right in not evaluating or properly evaluating the documentary evidence before it, which would have given impetus to its collation of the result of the election and which collation would have clearly shown that the Appellants won majority and whether this failure did not occasion a miscarriage of justice? (Grounds 2, 4 & 6).
2. Assuming issue No. 1, not resolved in favour of the Appellants, whether in all the circumstances of the proceedings before the trial Tribunal, the Appellants’ constitutional right to fair hearing was not breached which occasioned a miscarriage of justice? (Grounds 3 & 5).
In particular, the Appellants’ issue No.2 is most instructive, in that it has raised a very fundamental question which borders on the inalienable right to fair hearing as cherishingly enshrined in section 36 of the Constitution of the Federal Constitution of Nigeria, 1999 which provides thus:
36(1) in the determination of his civil rights and obligations, including any question determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
It is rather evident from the record that the exercising of the lower tribunal’s discretion in refusing the Appellants’ application for an adjournment on 21/01/08 was rather injudicious, to say the least. On that date in question, the petitioner had orally pleaded with the lower tribunal-
“not to visit the sins of counsel on me.”
In response, A. O. Ugwu Esq. for the 1st Respondent, however objected to the application for an adjournment and vehemently insisted that –
“the petition to be foreclosed for want of diligent prosecution.”
to which submission E.E. Uwakwe Esq; 2nd, – 153rd Respondents’ counsel concurred.
There is no gainsaying the fact that the lower tribunal, nay any court of law for that matter, has a discretionary power to grant or refuse an application for an adjournment. However, like in all cases of the exercise of discretion it must be exercised not only judicially, but also judiciously. Thus, where a discretionary power has not been shown to have been exercised judiciously, as in the instant case/ the appellate court has an onerous duty to set aside the entire proceedings of the lower court.
It is trite that a denial of an adjournment, resulting in the breach of the right to fair hearing of a party, is undoubtedly bad and outrageous. This is so, because the denial of fair hearing inflicts suffering, pain, and untold hardship upon those who ordinarily rely on the administration of justice and the rule of law, rather than resorting to primitive private self help in ventilating their grievances against one another. There is no doubt that the delay of justice often leads to a denial of justice. From time immemorial, people have protested at the delay of justice and often counted it as a grievous wrong, and rather unbearable. Shakespeare describes how delay of justice exhausts finances, patience, courage, and hope, et al. See HAMLET, ACT III, scene 1; BLEAK HOUSE, chapter 1. Lord Denning, MR (of blessed and most remarkable memory) was refuted to have remarked that:
To put right this wrong, we will in this court do all in our power to enforce expedition; and, if need be, we will strike out actions when there has been excessive delay. This is astern measure. But is within the inherent jurisdiction of the court. And the Rules of court expressly permit it. It is the only effective sanction they contain…
The principle upon which we go is clear, when the delay is prolonged and in excusable, and is such as to do grave in justice to one side or the other or to both, the court may in its discretion dismiss the action straightaway, leaving the plaintiff to his remedy against his own solicitor who has brought him to this plight, Whenever a solicitor by his in excusable delay, deprives a client of his cause of action, when a solicitor does not issue a writ in time, or serve it in time, or does not renew it properly. We have seen regret to say, several such cases lately, Not a few are legally aided. In all of them the solicitors have, I believe, been quick to compensate the suffering client; or at least their insurers have, so the wrong done by the delay has been remedied as much as can be, I hope this will always be done. See The Due Process of Law, 1980 Edition by Lord Denning, MR at page 93.
It is also axiomatic, that the right of fair hearing is not merely a rhetorical expression. It is a fundamental and substantive principle. See BAMAIYI V. THE STATE (2001) FWLR (pt. 46) 956 at 974 paragraphs D – F; KOTOYE V. CBN (1987) NWLR (part 98) 419); ATTANO V. AG BENDEL STATE (1988) 2 NWLR (part 75) 201.
Hence, in the light of the foregoing reasons and the detailed reasoning and conclusion reached in the lead judgment, I hereby hold that the appeal has merit and it’s allowed by me.
I abide by the consequential order setting aside the judgment of the lower tribunal in petition No. ABS/SHA/EPT/19/07, dated 15/02/08. The petition in question is hereby remitted to the Governorship & Legislative Houses Tribunal Umuahia, Abia state for retrial de novo by a different panel thereof.
No order as to costs.