ABIMBOLA HENRY TUESDAY & ANOR v. LEKE JOSEPH ADEJIDE & ORS
(2019)LCN/13558(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 25th day of June, 2019
CA/A/EPT/481/2019
RATIO
FAIR HEARING : BASED ON SECTION 36(1) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
Now, by Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended, fair hearing within a reasonable time by a Court or other Tribunal established by law, and constituted in such a manner as to secure its independence and impartiality, shall be accorded a person, who seeks the determination of his civil rights and obligation, including any question or determination by or against any government or authority.PER ABUBAKAR DATTI YAHAYA, J.C.A.
ADJOURNMENTS: THE PURPOSE OF ADJOURNMENTS
In the course of proceedings in a Court or Tribunal, parties may find it necessary to pray for adjournments to enable them file processes, applications or call witnesses. The reasons are many and varied and it is for the Court to decide in any given circumstances, whether to grant the application for adjournments or not and for how long.
Rules of Court also usually make provisions for adjournment so that there will be a smooth and timely dispensation of matters.The Courts usually take the issue of fair hearing and disposal of cases within the time permitted, in granting adjournments. PER ABUBAKAR DATTI YAHAYA, J.C.A.
ADJOURNMENTS: WHEN THE REFUSAL OF THE COURT TO GRANT ADJOURNMENTS WILL NOT AMOUNT TO A BREACH OF FAIR HEARING
If a counsel to a party in a case is truant or flippant, the refusal of the Court to exercise its discretion to grant an adjournment prayed for, cannot amount to a breach of fair hearing enshrined in Section 36 (1) of the 1999 Constitution as amended. See EZE V F.R.N, (2017) 15 NWLR (pt 1589) 433 at 481. Similarly, where it is a party to a case that deliberately employs delay tactics in the hearing of a matter or appeal, the Court will be entitled lawfully, to employ means and take action against his interest and this also, will not amount to a breach of fair hearing- See EZE v F.R.N (SUPRA) at 478, and CHIDOKA V FIRST CITY FINANCE LTD (2013) 5 NWLR (PT 1346) 144.PER ABUBAKAR DATTI YAHAYA, J.C.A.
ADJOURNMENTS: THE POWER OF A COURT TO GRANT ADJOURNMENTS IS DISCRETIONARY IN NATURE
It is trite, that the grant of an adjournment is a discretionary power of the Court which it exercises judiciously and judicially. This means that the applicant for adjournment must place before the Court sufficient material, containing compelling grounds and circumstances, to enable it exercise the discretion in his favour, otherwise, the application would be refused. PER ABUBAKAR DATTI YAHAYA, J.C.A.
FAIR HEARING: WHAT DOES IT MEAN
The loud cry from the appellants here, is that their right to fair hearing has been breached. Well, fair hearing entails a Court or Tribunal affording both parties, equal opportunities to present their cases. One side should not be favoured over the other, in respect of the opportunities granted. Once the opportunity is afforded the parties, the right as enshrined in Section 36(1) of the 1999 Constitution as amended, is satisfied REGISTERED TRUSTEES PCN V. ETIM (2017) 13 NWLR (AT 1581) 1 AT 48; KOTOYE V. C.B.N (1989) 1 NWLR (PT 98) 419 AND AMANCHUKWU V. F.R.N (2009) 8 NWLR (PT 1144) 475.PER ABUBAKAR DATTI YAHAYA, J.C.A.
FAIR HEARING: WHEN A PARTY CANNOT BE HEARD TO CLAIM THAT HIS RIGHT TO FAIR HEARING WAS BREACHED: WHEN HE WAIVES SUCH RIGHTS
Thus, if a party is granted a reasonable opportunity to present his case and he fails to seize that opportunity without a cogent excuse or satisfactory explanation to the Court, he cannot be heard to complain of lack of fair hearing. In such a scenario, he would be deemed to have waived his right- F.B.N V. T.S.A (2010) 15 NWLR (PT 1216) 247; ADEBAYO V. A.G OGUN (2008) 7 NWLR (PT 1085) 201; ABUBAKAR V. INEC (2004) 1 NWLR (PT 854) 207; NWOKOCHA V. A.G IMO (2016) 8 NWLR (PT 1513) 141 and EZE V. FRN (SUPRA) AT 499.PER ABUBAKAR DATTI YAHAYA, J.C.A.
FAIR HEARING: JUDICIAL DISCRETION IN GRANTING FAIR HEARING MUST BE HANDLED JUDICIALLY AND JUDICIOUSLY
Since a judicial discretion is a power that enures to the judge which he exercises judiciously and judicially, an appellant seeking to set aside the exercise of that discretion, must show that it was exercised wrongly or that relevant issues were not considered and that injustice is the result of that wrong exercise of discretion. See ZAKIRAI V. MUHAMMAD (2017) 17 NWLR (PT 1594) 181 AT 228. PER ABUBAKAR DATTI YAHAYA, J.C.A.
JUSTICES
ABUBAKAR DATTI YAHAYA Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
MOHAMMED BABA IDRIS Justice of The Court of Appeal of Nigeria
Between
1. ABIMBOLA HENRY TUESDAY
2. ALL PROGRESSIVE CONGRESS (APC) Appellant(s)
AND
1. LEKE JOSEPH ADEJIDE
2. AFRICAN DEMOCRATIC CONGRESS
3. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) Respondent(s)
ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Kogi State National and Houses of Assembly Election Petition Tribunal delivered on the 1st May 2019, wherein the Petition was struck out, pursuant to paragraph 46 (1) of the 1st Schedule to be Electoral Act 2010, as amended.
The 3rd respondent INEC, conducted an election into the Yagba Federal Constituency Kogi State. The 1st appellant contested the election as a candidate of the 2nd appellant (APC). The 1st respondent contested the election as a candidate of the 2nd respondent (ADC). Upon conclusion of the election, the 1st respondent was declared the winner and was returned elected. The appellants were aggrieved and they filed a petition before the National and Houses of Assembly Election Petition Tribunal Kogi State. After the conclusion of Pre-trial sessions on the 15th of April 2019, the Tribunal adjourned the Petition to the 1st May 2019 for hearing on a day to day basis.
On the resumed date of 1st May, 2019, learned counsel for the Petitioners requested for further adjournment as the petitioners were absent and
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the 1st petitioner had been sick and hospitalized in Lagos. All efforts to reach him by his counsel were unsuccessful and contact was established with him only two days before the 1st May, 2019. None of the witnesses was also in Court. The counsel for the respondents opposed the application.
The Tribunal in its Ruling refused to grant the adjournment and struck out the Petition. Hence this appeal.
The appellants filed their brief on the 31/5/19 and reply brief to the 1st and 2nd respondents’ brief on the 6th June, 2019. They did not file a reply to the 3rd respondent’s brief. Although the appellant distilled two issues for determination in the appeal, based on grounds 1 and 2 of the appeal, ground 2 and issue two were struck out by this Court on 19/6/19 when the appeal was heard. There is therefore only one issue for determination. It reads:
“Whether the refusal of the Honourable Tribunal to grant an adjournment of the petition at the instance of the appellants resulting in her decision to strike out the petition for want of diligent prosecution tantamount to a denial of fair hearing and thus unjustified.”
?
In the 1st respondent’s brief filed
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on 3rd June, 2019 and settled by Mr. Aladedoyo, O., the issue distilled therein, is:
“Whether having regard to the peculiar nature of election petition proceedings, the Tribunal was right to have struck out the petition for want of diligent persecution.”
The 2nd respondent’s brief was settled by Mr. Aremu, A and was filed on 3rd June, 2019. The relevant issue distilled therein is:
“Whether or not having regard to the facts of this case, the refusal of the Honourable Tribunal to grant an adjournment to the appellants who were tardy in persecuting their case amounted to breach of their right to fair hearing. ”
The 3rd respondent filed its brief on 11th June, 2019 and Bage A., who settled it, distilled the issue to be:
“Whether having regard to the facts and circumstances of the petition, the Tribunal was right to have refused the grant of adjournment at the instance of the petitioners now appellants to enable them open their case and call their witnesses.”
The issue identified by all the parties are similar and I shall adopt the issue raised by the appellants to resolve this appeal.
“Whether the refusal of the Honourable Tribunal
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to grant an adjournment of the petition at the instance of the appellants resulting in her decision to strike out the petition for want of diligent prosecution tantamounts to a denial of fair hearing and thus unjustified.”
In his submission on this issue, learned counsel for the appellant Mr. Aruwa, submitted that the refusal of the Tribunal to grant the appellants an adjournment to open their case, was an error which resulted in a denial of fair hearing occasioning miscarriage of justice as the appellants were denied an opportunity to prove their case. He referred to section 36 of the 1999 Constitution and the cases of AFRICAN INT. INCORPORATION & 2 ORS V. SHORELINE LTD (2010) 47 WRN 1 at 12 AND ACN V. LAMIDO (2012) 49 NSQR (PT.I) 652 at 670-671 where he argued that ample opportunity required to be granted a party to prove his case means a few adjournments to cater for any challenges the litigant might face in persecuting his case. He submitted that all election results sheets relevant to the hearing of the petition had been tendered in the course of the pre-hearing session and all preliminary applications dispensed with, so that there was no problem
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militating the hearing the petition. That the request for adjournment on the 1st May, 2019 was due to the ill health of the 1st appellant but as he had recovered, they needed an adjournment to open their case. He argued that as that was the first time the appellants were praying for an adjournment, the Tribunal should have granted it and not be hasty in striking it out. He referred to AJAYI, V. IDOWU (2011) 30 WRN 80 AT 111, and submitted that the action of the Tribunal occasioned a miscarriage of justice.
Learned counsel argued that although the grant of an adjournment is an exercise of discretion, where it is exercised in such a manner as to occasion miscarriage of justice, an appellate Court would interfere with such exercise. He referred to AMASIKE V. THE REGISTRAR – GENERAL, CAC & 1 OR (2010) 39 WRN 1 AT 92; ALL PROGRESSIVE GRAND ALLIANCE V. UMEH (2011) 32 WRN 1 AT 30 AND ONAGORUWA V. THE STATE (1993) 7 NWLR (PT.303) 49.
In the reply brief, learned counsel for the appellants argued that as the 2nd appellant is a juristic person, it cannot testify in Court and so the issue of it not being in Court, is of no moment. He emphasized by
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referring to EMESIM V. NWACHUKWU (1999) 6 NWLR (PT. 605) 169, that the decision of the Tribunal amounted to arid legalism as opposed to substantial justice which all Courts are wont to. He urged us to resolve the issue in favour of the appellants.
For the 1st respondent, it was submitted that election proceedings are sui generis and so time is of the essence. With over 70 witnesses listed in the petition, apart from other pending petitions before the Tribunal, and with over 40 days having elapsed out of the 180 days within which the petition must be determined, it is obvious that time is of the essence and parties ought to appreciate and conform. Since the appellants had been given a 15 days adjournment to prepare and open their case, they had been afforded adequate opportunity to conduct their petition and cannot therefore complain of denial of fair hearing, he argued. He referred to pages 496 and 503 of the record and the cases of ISIAKA V AMOSUN (2016) 9 NWLR (Pt 1518) 417 at 445. TSOKWA V IBI (2017) 10 NWLR (PT 1574) 343 AT 413, WITHARDA V LARAMU (2015) 3 NWLR (PT 1446) 253 AT 273, AND S.E.C. V OKEKE (2018) 12 NWLR (PT 1634) 462 AT 478.<br< p=””</br<
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Further, that the grant of an adjournment is a discretion, but that material must be placed before the Court, to enable it exercise its discretion judicially and judiciously- REGISTERED TRUSTEES PCN V ETIM (2017) 13 NWLR (PT 1581) 1 at 41.
Counsel argued that in this respect, the reason for the request for adjournment was the ill-health of the 1st appellant, but no medical report was placed before the Court to substantiate that position, as found by the Court. Further, that none of the listed 25 witnesses was in Court, so that the trial could commence. Since the appellants could not fault the decision of the Tribunal, he urged us to resolve this issue in favour of the 1st respondent.
Learned counsel for the 2nd respondent Mr. Aremu, argued along the same lines with the 1st respondent. He emphasized, by referring to the case of ODON V BARIGHA-AMENGE (NO 1) (2010) 12 NWLR (PT 1207) 1 AT 10 that in election petition cases, time is of the essence and that parties and their counsel, together with the Court, have a duty to ensure their expeditious disposition. On fair hearing, his focus remains on the fact that the appellants were given adequate time-15
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days- to prepare their cases and since they failed to avail themselves with the opportunity extended to them, they cannot complain of breach of fair hearing- SEC V OKEKE (2018) 12 NWLR (pt 1634) 462 at 478-479.
On adjournments, learned counsel for the appellants submitted that it is a matter of discretion and once exercised, an appellate Court would not interfere, unless it was tainted with illegality or in the interest of justice to do so- APGA V UMEH (2011) 18 NWLR (PT 1250) 544 at 573, and USANI V DUKE (2006) 17 NWLR (PT 1009) 610 AT 646. As the Tribunal did not breach the right to fair hearing in respect of the appellants he argued, this Court should not interfere with its decision. He urged us to dismiss the appeal.
Mr. Bage, learned counsel for the 3rd respondent submitted that the medical history of the 1st petitioner was not produced to support the prayer for adjournment on the ground of ill-health and that nothing was said about the inability of the 2nd petitioner to proceed with the hearing of the petition. In that view he argued, the Tribunal was right when it struck out the petition for want of diligent prosecution. He urged us to dismiss the appeal.
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Now, by Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria as amended, fair hearing within a reasonable time by a Court or other Tribunal established by law, and constituted in such a manner as to secure its independence and impartiality, shall be accorded a person, who seeks the determination of his civil rights and obligation, including any question or determination by or against any government or authority.
In the course of proceedings in a Court or Tribunal, parties may find it necessary to pray for adjournments to enable them file processes, applications or call witnesses. The reasons are many and varied and it is for the Court to decide in any given circumstances, whether to grant the application for adjournments or not and for how long.
Rules of Court also usually make provisions for adjournment so that there will be a smooth and timely dispensation of matters.
The Courts usually take the issue of fair hearing and disposal of cases within the time permitted, in granting adjournments.
If a counsel to a party in a case is truant or flippant, the refusal of the Court to exercise its
9
discretion to grant an adjournment prayed for, cannot amount to a breach of fair hearing enshrined in Section 36 (1) of the 1999 Constitution as amended. See EZE V F.R.N, (2017) 15 NWLR (pt 1589) 433 at 481. Similarly, where it is a party to a case that deliberately employs delay tactics in the hearing of a matter or appeal, the Court will be entitled lawfully, to employ means and take action against his interest and this also, will not amount to a breach of fair hearing- See EZE v F.R.N (SUPRA) at 478, and CHIDOKA V FIRST CITY FINANCE LTD (2013) 5 NWLR (PT 1346) 144.
In the instant appeal, when the pre-hearing conferences were concluded on the 15th April 2019, the petition was adjourned to the 1st May 2019 for hearing, on a day to day basis. Thus a 15 days adjournment was granted to the petitioners to Marshall their cases and prosecute same before the Tribunal. On the resumed date of 1st May 2019, none of the petitioners were present in Court. None of the twenty-five witnesses listed to give evidence on behalf of the petitioners was in Court. Learned counsel for the petitioners prayed for adjournment as the 1st petitioner had been sick and had been
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hospitalized. Counsel said he could not get in touch with the 1st petitioner until two days prior to the adjourned date and as the 1st petitioner was the only one who could make arrangements to get the witnesses to go to the Tribunal to testify and he did not, none of the witnesses was in Court.
Pertinent questions to which answers are in dire need, have arisen in this respect. On what date did the 1st petitioner actually fall sick? When was he hospitalized? When was he discharged from the hospital? The answers to these questions would then show whether the 1st petitioner had the opportunity to make arrangements for the witnesses to attend Court or not, from the last date of adjournment of 15th April 2019, before he fell sick and was hospitalized. If he could not, what about the time between the time he was discharged from the hospital to the adjourned date? The absence of these answers placed before the Court at the time of seeking for adjournment, did not help the cause of the 1st petitioner at all, after he was given adequate and ample opportunity to present his case.
Again, there was nothing placed before the Tribunal, by way of a medical report,
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to show when the 1st petitioner fell ill, if at all, the nature of the sickness, the hospital he was admitted into and treated and when he was discharged. The statement of counsel to the Tribunal on the ill health of the 1st petitioner was bare, unsupported and very flippant. The nature of the case (Election Petition) and the circumstances at the time warranted a more serious attitude from counsel. That was not forth coming, and the Court did not see any material (medical report) to consider in granting the application for adjournment.
As for the 2nd petitioner, which obviously had similar interest with the 1st petitioner in the petition, nothing was advanced in its interest. Even though a juristic person, it could give evidence through natural persons and tender documents. It could, and should have made arrangements for the attendance of witnesses on the 1st May 2019, for the hearing of the petition to commence. It did not do so and also did not furnish any excuse for such failure, after it was given ample opportunity to present its case.
It is trite, that the grant of an adjournment is a discretionary power of the Court which it exercises
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judiciously and judicially. This means that the applicant for adjournment must place before the Court sufficient material, containing compelling grounds and circumstances, to enable it exercise the discretion in his favour, otherwise, the application would be refused.
The loud cry from the appellants here, is that their right to fair hearing has been breached. Well, fair hearing entails a Court or Tribunal affording both parties, equal opportunities to present their cases. One side should not be favoured over the other, in respect of the opportunities granted. Once the opportunity is afforded the parties, the right as enshrined in Section 36(1) of the 1999 Constitution as amended, is satisfied ? REGISTERED TRUSTEES PCN V. ETIM (2017) 13 NWLR (AT 1581) 1 AT 48; KOTOYE V. C.B.N (1989) 1 NWLR (PT 98) 419 AND AMANCHUKWU V. F.R.N (2009) 8 NWLR (PT 1144) 475. Thus, if a party is granted a reasonable opportunity to present his case and he fails to seize that opportunity without a cogent excuse or satisfactory explanation to the Court, he cannot be heard to complain of lack of fair hearing. In such a scenario, he would be deemed to have waived his
13
right- F.B.N V. T.S.A (2010) 15 NWLR (PT 1216) 247; ADEBAYO V. A.G OGUN (2008) 7 NWLR (PT 1085) 201; ABUBAKAR V. INEC (2004) 1 NWLR (PT 854) 207; NWOKOCHA V. A.G IMO (2016) 8 NWLR (PT 1513) 141 and EZE V. FRN (SUPRA) AT 499.
Since a judicial discretion is a power that enures to the judge which he exercises judiciously and judicially, an appellant seeking to set aside the exercise of that discretion, must show that it was exercised wrongly or that relevant issues were not considered and that injustice is the result of that wrong exercise of discretion. See ZAKIRAI V. MUHAMMAD (2017) 17 NWLR (PT 1594) 181 AT 228.
From the facts of this case, it is clear to me that the appellants as petitioners, were given ample opportunity to prepare and for the Tribunal to hear the petitions within a reasonable time. They failed to avail themselves with the opportunity granted when they failed to go on with the hearing on the day it came up for hearing. Instead, they prayed for adjournment without placing any material for the court to consider. The excuse they advanced was not supported in any manner. None of the witnesses was in Court to give
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evidence. The 2nd petitioner kept mute, thus adopting a lackadaisical attitude towards the hearing of the petition and its due determination. Their counsel merely took things for granted, adopting a laissez-faire attitude in line with the litigants, his clients. The nature of the case, election petition, warrants that its sui generis nature be appreciated and time being of the essence, should have been respected. It is of no moment, that it was the first adjournment the petitioners were seeking. They needed to be forthright, purposeful and diligent. No satisfactory material was placed before the Tribunal compelling enough to grant the adjournment, and so the appellants have woefully failed to show that the exercise of discretion by the Tribunal was wrong or should have been in their favour. In the given circumstances, the Tribunal held that the reason advanced for the prayer for adjournment by counsel for the petitioners “are not convincing”. I agree. There was no breach of fair hearing for the appellants and the Tribunal acted legally when after it refused to adjourn the petition, it followed the path open to it and struck it out,
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pursuant to paragraph 46(1) of the 1st Schedule to the Electoral Act 2010 as amended. The lone issue for determination is resolved in favour of the respondents and against the appellants.
This appeal therefore lacks any merit and I hereby dismiss it with N75,000 costs to the respondents against the appellants.
STEPHEN JONAH ADAH, J.C.A.: I read in draft the judgment just delivered by my learned brother Abubakar Datti Yahaya, JCA.
I agree in full with the reasoning and conclusion that the appeal lacks merit. I too do dismiss it.
In Election Petition issues, time is sacred. This is known to the parties and the Tribunal. Any party that sets out to play off its time at the Tribunal cannot and must not be tolerated. It is the bounden duty of the Tribunal to ensure and assure justice to all the parties before the Tribunal. In the instant cast the appellants were the petitioners at the lower Tribunal. The Tribunal as required afforded them the opportunity to proof their petition but they wasted the opportunity and refused to diligently prosecute their petition. The Tribunal therefore exercised its discretion which
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to my mind was appropriate and struck out the petition.
The grouse of the appellants is centered on the issue of fair hearing as enshrined in Section 36 of the 1999 Constitution as amended. Section 36 (1) provides:
36. (1) in the determination of his civil rights and obligations, including any question or 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.
This provision is very clear and does not require any construction to arrive at its intendment. The Supreme Court in Donatus Ndu v. The State (1990) 7 NWLR (Pt. 164) 550 at 578 per Nnaemeka-Agu, J.S.C. stated that the law succinctly thus:
“The very essence of fair hearing under Section 33 of the Constitution of 1979 is a hearing which is fair to both parties to the suit, be they plaintiffs or defendants or prosecution and defence. The Section does not contemplate a standard of justice which is biased in favour of one party and to the prejudice of the other. Rather it imposes an
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ambidextrous standard of justice in which the Court must be fair to both sides to the conflict.”
The section offers twain equal opportunities to the two sides of the dispute. Once one side refuses to seize or maximize the opportunity afforded it by the Court, it cannot turn round to accused the Court or Tribunal of any breach of the right.
I am very much in agreement with my learned brother in the lead judgment that there was no breach of right of the appellants to fair hearing in this case.
This appeal truly is lacking in merit and it is also dismissed by me. I abide by the order of costs as awarded in the lead judgment.
MOHAMMED BABA IDRIS, J.C.A.: I agree
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Appearances:
ENEJE ARUWA E. A EKPA AND M.K AUDUFor Appellant(s)
OLUWALE ALANDEDOYE ISAAC IBITOYE and A. O IKUBUWAJE for the 1st respondent
AKINYEMI AREMU, MRS YEMISI AKINYEMI AREMU for 2nd respondent/applicant
AHMED BAGE for the 3rd respondentFor Respondent(s)
Appearances
ENEJE ARUWA E. A EKPA AND M.K AUDUFor Appellant
AND
OLUWALE ALANDEDOYE ISAAC IBITOYE and A. O IKUBUWAJE for the 1st respondent
AKINYEMI AREMU, MRS YEMISI AKINYEMI AREMU for 2nd respondent/applicant
AHMED BAGE for the 3rd respondentFor Respondent
