HON. BARR. JOSEPHAT CHIBUEZE EMENAHA v. KELVIN OBIOHA CHINO & ORS.
(2011)LCN/4914(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of November, 2011
CA/OW/EPT/36/2011
RATIO
WRONGFUL ADMISSION/ WRONGFUL REJECTION OF EVIDENCE: WHETHER A DECISION MADE BY A TRIAL COURT ON WRONGFUL ADMISSION OF EVIDENCE OR WRONGFUL REJECTION OF EVIDENCE IS PART OF THE SUBSTANTIVE OR MAIN TRIAL AND NOT AN INTERLOCUTORY DECISION
I am in agreement with the learned counsel for the Appellant that a ruling made by a trial court on wrongful admission or wrongful rejection of evidence is part of the main trial and not an interlocutory decision. The position of the law is as stated by Ibiyeye, JCA, in the case of Chief Theodore Ahamefule Orji & 1 Or vs. Onyema Ugochukwu & Ors (2009) 14 NWLR (Pt. 116) 257 at 270 when the learned Justice of the Court of Appeal observed. “It is also pertinent to state that a decision made by a trial court on wrongful admission of evidence or wrongful rejection of evidence is part of the substantive or main trial and not an interlocutory decision. A party wishing to appeal against the judgment of the trial court can file one of the grounds of appeal alleging that inadmissible evidence had been admitted during trial or admissible evidence had been rejected. See Okobia v. Ajenya (1998) 6 NWLR (Pt.554) 348 at 360, First Bank of Nigeria Plc vs. Isokwa (2000) 13 NWLR (Pt.685) 521.” PER MOJEED ADEKUNLE OWOADE, J.C.A.
FAIR HEARING: CONSEQUENCE OF NOT ALLOWING A PARTY CALL AND EXAMINE HIS WITNESSES FREELY
…what the Tribunal had done in this case was to compel the Appellant to close his case. This is contrary to all tenets of fair hearing and constitutionalism. A fair hearing connotes a fair trial, a trial as in this case where the right of a party to call and examine his witnesses freely cannot be said to be fair if the right became foreclosed after calling only 1 of 17 witnesses listed. In the instant case, there is a fundamental breach of procedure, which negates the fair hearing of the appellant, constitutes an infraction of due process and works to vitiate the proceedings of the Tribunal.This is an appropriate time to employ the aphorism that even though justice delayed is justice denied justice rushed is indeed in this circumstance justice crushed. PER MOJEED ADEKUNLE OWOADE, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
HON. BARR. JOSEPHAT CHIBUEZE EMENAHA Appellant(s)
AND
1. KELVIN OBIOHA CHINO
2. INDEPENDENT NATIONAL ELECTORAL COMMISSION
3. THE RESIDENT ELECTORAL COMMISSIONER, IMO STATE Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal filed by the appellant, who was the petitioner, against the decision/ruling of the National and State Houses of Assembly Election Tribunal, Owerri (Coram: Umeokoye E. Essang, J. (Chairman); A. M. Yakubu, J.; and A. O. Salihu, J.) delivered on the 22nd day of September, 2011 dismissing the petition.
The petition was in respect of the election to the House of Assembly, Imo state, for Njaba state constituency, which was conducted by the 2nd respondent on the 26th day of April, 2011. The appellant and the 1st respondent were amongst the candidates at the election.
Dissatisfied with the return of the 1st respondent at the election, the appellant presented a petition to the National and State Houses of Assembly Election Tribunal Owerri (hereinafter referred to as “the tribunal”) wherein he sought for the following reliefs viz:
(1) That the 1st Respondent Kevin Obioha Chino, who was the candidate of Congress of Nigeria, was not duly elected or returned by the majority of the lawful votes cast at the House of Assembly elections held on the 26th day of April, 2011, in respect of Njaba State Constituency of Imo State.
(2) That the said election or return of the 1st Respondent as the winner of the House of Assembly Election held on the 26th day of April, 2011, in respect of Njaba State Constituency of Imo State, is invalid and void by reason of diverse acts of electoral malpractices and non-compliance with the provisions of the Electoral Act, 2010 (as amended).
(3) That the Petitioner, Hon. Barr. Josephat Emenaha, having scored the majority of lawful votes cast at the April, 26th, 2011 House of Assembly election conducted by the 2nd and 3rd Respondents in respect of the Njaba State Constituency of Imo State, be declared and returned as the rightful winner of the said election and be issued a certificate of return accordingly.
ALTERNATIVE RELIEF
(4) That the declaration and return of the 1st Respondent by the 2nd and 3rd Respondents as the winner of April, 26th 2011, House of Assembly election conducted in respect of Njaba State Constituency of Imo State being illegal and unlawful, be nullified and accordingly set aside and a fresh election ordered in the constituency.
After exchange of pleadings, the tribunal conducted a pre-hearing session during which the 1st Respondent challenged the competency of some paragraphs of the petition in that they allegedly contained averments of crime against persons who were not parties to the petition. After hearing arguments, the tribunal ruled that the said paragraphs of the petition were incompetent, and struck them out. The appellant appealed against that decision and in a unanimous decision of this Honourable Court delivered on the 11th day October, 2011, in Appeal No. CA/OW/EPT/19/2011, the ruling of the tribunal was set aside and the petition sent back for the trial on the merit before another panel.
Trial of the petition commenced on the 6th day of September, 2011 when the petitioner testified as P.W.1, at the conclusion of his testimony, the tribunal suo motu raised the issue as to whether, having regard to the evidence, “even if the results in all the 19 polling units tendered in evidence by the petitioner are cancelled by this Tribunal, can this cancellation adversely affect the outcome of the said election?” and called for the addresses of counsel.
At the conclusion of addresses, the tribunal delivered a considered ruling, subject of this appeal, in which it concluded, thus:
“To therefore proceed with the hearing of this petition will only amount to an exercise in futility and this Tribunal so holds. The consequence is that petitioner’s petition number EPT/IM/SHA/15/2011 is hereby dismissed.”
Earlier on, in the course of the evidence of P.W.1, the Tribunal refused to admit the certified true copies of register of voters for 20 polling units. In its ruling delivered on 6th September, 2011, it said “The tribunal hereby upholds the objection of the 1st Respondent’s counsel that these 20 voters register certified by engineer Moses Udoh, Administrative Secretary are-inadmissible. They are accordingly rejected and they should be so marked.”
Consequent upon the above rulings/decisions, the appellant filed a notice of appeal on the 5th day October, 2011 which contains four grounds of appeal.
The Appellant’s brief of argument was dated and filed on 17/10/2011. The 1st Respondent’s brief of argument was dated and filed on 21/10/2011. The 2nd and 3rd Respondents brief was also dated and filed on 21/10/2011. The Appellant’s Reply to the Respondents briefs of argument was dated and filed on 26/10/2011.
The 1st Respondent raised a preliminary objection to the hearing of this appeal to wit.
That ground two of the grounds of appeal as contained in the Appellant’s Notice of Appeal is incompetent in that:
“(a) The same does not fall within the ambit of the decision appealed against by the Appellant, and
(b) The same was filed outside the statutory period of Appeal allowed by law.”
Learned counsel for the 1st Respondent submitted in respect of the preliminary objection that in the Notice of Appeal filed on 5/10/2011 the Appellant unequivocally indicated that the decision of the lower Tribunal which he is appearing against is the ruling delivered on 22/9/2011. That, a perusal of the said ruling delivered on 22/9/2011 as contained at pages 390 – 406 of the record shows that the said ruling does not contain any decision rejecting any voters Register. It follows therefore that grounds 2 of the grounds of appeal complaining about admissibility of voters Registers does not arise from the ruling complained of and is therefore incompetent.
Learned counsel to the 1st Respondent also drew our attention to pages 363 – 368 of the record to show that it was on 6/9/2011 that Tribunal made a ruling rejecting the voters Registers. That, however, a perusal of the Notice of Appeal filed by the Appellant shows that the said Notice of Appeal does not challenge any decision made by the lower Tribunal on 6/9/2011. He submitted further that on 5/10/2011 when the Appellant’s Notice of Appeal was filed, the 21 day period within which an appeal can be filed against the decision of the lower Tribunal delivered on 6/9/2011 as stipulated by paragraph 6 of the Election Tribunal and the Court Practice Direction 2011 had expired. The appeal, counsel said, was filed out of time without any order extending the time within which to file the appeal. He urged us to uphold the preliminary objection and strike out ground 2 of the Grounds of Appeal.
In reaction to the above, Learned counsel for the Appellant submitted in the main that a party wishing to appeal a decision made by a trial court on wrongful admission or wrongful rejection (as in the instant case) may state in one of the grounds of appeal that inadmissible evidence was admitted or that admissible evidence had been rejected. Furthermore, said appellant’s counsel, such a party may in his final appeal complain of the impropriety of an interlocutory decision without seeking leave of court to do so, and without filing a separate appeal for that purpose.
On this, counsel relied on the cases of Alake vs. Abalaka (2007) FWLR (Pt.88) 931 and Osunbor vs. Oshiomole (2007) 18 NWLR (Pt.1065) 32 at 40. I am in agreement with the learned counsel for the Appellant that a ruling made by a trial court on wrongful admission or wrongful rejection of evidence is part of the main trial and not an interlocutory decision. The position of the law is as stated by Ibiyeye, JCA, in the case of Chief Theodore Ahamefule Orji & 1 Or vs. Onyema Ugochukwu & Ors (2009) 14 NWLR (Pt. 116) 257 at 270 when the learned Justice of the Court of Appeal observed.
“It is also pertinent to state that a decision made by a trial court on wrongful admission of evidence or wrongful rejection of evidence is part of the substantive or main trial and not an interlocutory decision. A party wishing to appeal against the judgment of the trial court can file one of the grounds of appeal alleging that inadmissible evidence had been admitted during trial or admissible evidence had been rejected. See Okobia v. Ajenya (1998) 6 NWLR (Pt.554) 348 at 360, First Bank of Nigeria Plc vs. Isokwa (2000) 13 NWLR (Pt.685) 521.” In the instant case, the ruling of 6/9/2011 on the rejection of 20 voters Registers tendered by the Appellant was indeed part and parcel of the main or substantive trial before the Tribunal and not an interlocutory ruling which would have been subject of a separate Notice of Appeal. For this reason, the 1st Respondent’s preliminary objection is unfounded and it is accordingly dismissed.
Appellant’s brief of argument dated 17/10/2011 was filed on the same day. 1st Respondent’s brief of argument dated 20/10/2011 was filed on 21/10/2011. The 2nd and 3rd Respondent’s brief of argument was dated and filed on 21/10/2011. On 26/10/2011 the Appellant filed a Reply to the Respondents briefs of argument.
The Appellant nominated the following issues for determination.
“1. Whether the Tribunal was in error when it prevented the appellant from presenting his case is full.
2. Whether the Tribunal wrongly rejected the register of voters tendered by the appellant.
3. Whether the Tribunal wrongly determined the petition on the basis of the votes scored in the 20 polling units only without recourse to the number of registered voters in the affected polling units.”
The 1st Respondent formulated the following issues:
“1. Whether the lower Tribunal was right in circumstances of the case, in dismissing Appellant’s petition at the stage it did?
2. Whether the lower Tribunal was right in rejecting the voters Registers tendered by the Appellant.”
The 2nd and 3rd Respondent formulated two issues as follows:
“1. Whether the Tribunal was wrong when it terminated the petition on the ground of its unsustainability.
2. Whether the Tribunal wrongly rejected the Register of voters tendered by the Appellant.”
This appeal shall be determined on the issues formulated by the Appellant. Henceforth, barring emphasis, the submissions of the Appellant shall be placed on one side of the scale those of the 1st, the 2nd and 3rd Respondents (that is the two sets of Respondents) shall be considered together on the other side of the scale as the submissions of the Respondents. This is for reason of shared common interest in the cases of the Respondents and also for convenience.
On Issue No. 1, learned senior counsel emphasized two points. The first is that the very basis of the Tribunal’s conclusion is faulty. This according to learned senior counsel for the Appellant is because, the Tribunal acted under the impression that certain offensive paragraphs of the Appellant’s petition had indeed been struck out without adverting its mind to the fact that by the Ruling in Appeal. No. CA/OW/EPT/91/2011, the Court of Appeal had ordered the reinstatement of paragraphs of the Appellant’s petition hitherto struck out by the Tribunal. And, therefore, when in the judgment appealed against,-the Tribunal thought there were only 20 polling units left in the petition of the Appellant, the Appellant’s case was still based on 28 polling units as originally presented in the petition.
The second ground of Appellant’s Issue No. 1 concerns the nature of the case itself. Learned senior counsel for the Appellant submitted that the petition was based on two grounds, one of which was that the “election and return of the 1st Respondent was invalid by reason of diverse acts of corrupt practices and/or non-compliance with the provision of the Electoral Act, 2010 (as amended) but that the Tribunal in its ruling seemed to be oblivious of this ground of the petition. Rather, it focussed on the other ground of the petition only, namely, the scores of the candidates in 19 units.
The relief in paragraph (D) (2) of the petition, said counsel is that “the said election or return of the 1st Respondent as the winner of the House of Assembly Election held on the 26th day of April 2011 in respect of Njaba State Constituency of lmo State, is invalid and void by reason of diverse acts of electoral malpractices and non-compliance with the provisions of the Electoral Act, 2010 (as amended).” The alternative relief in paragraph (D) (4) thereof is that “the declaration and return of the 1st Respondent ……being illegal and unlawful, be nullified and accordingly set aside and a fresh election ordered in the constituency.”
Appellant’s counsel submitted that the decision of the Tribunal to short circuit the petition after the testimony of the appellant as P.W.1, amounted to a deprivation or denial of the appellant’s right to present his case to the best of his ability, having regard to the facts of his petition. This, is because proof of the second ground of his petition, concerning invalidity of the return of the 1st Respondent arising from corrupt practices and/or non-compliance with the law could lead to a nullification of the election. But he was denied the opportunity. On this, learned senior counsel for the Appellant relied on the case of Adigun vs. Attorney-General of Oyo State (1987) 1 NWLR (Pt.53) 678, 709, 721, 752 and submitted that the effect of the deprivation or denial is that the petition did not receive a fair hearing.
The Respondents in answer to the first leg of Appellant’s Issue No. 1 insisted that the present appeal has nothing to do with the Ruling of the Court of Appeal delivered on 11/10/2011 in Appeal No. CA/OW/EPT/19/2011.
On the Appellant’s second ground, the Respondents submitted that having regard to the provision of S. 139 (1) of the Electoral Act, 2010 (as amended) the Appellant would only have a sustainable petition if the evidence/documents presented by him showed that the votes obtained from the 20 polling units where non-compliance was alleged to have occurred are of such quantity that if they had deducted from the final scores of the candidates, the result will affect the return made at the election. According to the Respondents, a perusal of the evidence/documents tendered by the Appellant shows that even if the allegations of non-compliance made in respect of the 20 polling units are accepted true and the votes emanating from the said 20 polling units are deducted from the agreed final scores of the candidates, the 1st Respondent would still have scored the highest majority votes.
Learned counsel for the Respondents relied on an array of legal authorities, which include the cases of Uzodinma vs. Udenwa (2004) 1 NWLR (Pt. 854) 345, Mohammed vs. Bello (2010) All FWLR (Pt. 549) 1044 at 1062 – 1063, NV Scheep vs. MV’s ARA Z” (2001) FWLR (Pt.34) 543 at 583, John Mills vs. Franklin Beatrice Penner (1940) 6 SACA 144, Chevron (Nig) LTD vs. Lonestar Drilling Nig. LTD (2007) 150 LRCN 1791 at 1800. AG Federation vs. Arepp (2003) 18 NWLR (Pt.851) 182 at 215, Williams v. Williams (1995) 27 LRCN 147 at 162, NDIC vs. Central Bank of Nigeria (2002) FWLR (Pt.99) 1021 at 1037 and Odu’a Investment LTD vs. Talabi (1997) 57 LRCN 2107 at 2136 to show that the position of the Tribunal by dismissing the Appellant’s case is in line with the general position of the law that the court is entitled, if a perusal of the pleadings as it stands disclosed no triable cause of action to dismiss such suit.
Appellant’s Issue No. 1 has two legs. On the first leg, the Respondents could be right to have claimed that the decision of the Court of Appeal of 11/10/2011 in Appeal No. CA/OW/EPT/19/2011 has not been reached before the Ruling of the tribunal, which is the subject of this appeal. And, therefore that the Court of Appeal Ruling could not have had any effect on the present appeal.
On the second leg of the Appellant’s issue No. 1, it must be observed that there were no preliminary issues of incompetence or cause of action neither was there any jurisdictional issues as to .the competence of the court to entertain the action. The trial started with the evidence of P.W.1, soon after, the Tribunal called on counsel to address it on the sustainability of the petition in the light of the evidence including documentary evidence that had been adduced.
The situation before the lower Tribunal in the instant case is not comparable with any of the decisions cited and relied upon by the learned counsel to the Respondents. The cases cited by the Respondents are based on incompetency of action, lack of cause of action or jurisdiction leading to striking out or dismissal of those cases. Where as in this case, a suit is competent, and the court is possessed of the necessary jurisdiction to try it, it is absolutely a denial of fair hearing for a court of law suo motu to call for addresses on the sustainability of the petition. This is more so in the instant case where there is nothing on record to show that the Appellant decided on his own to close its case after the evidence of PW1. It is pertinent to further observe that PW1, was one of 17 witnesses listed and frontloaded by the Appellant before the Tribunal.
Clearly, what the Tribunal had done in this case was to compel the Appellant to close his case. This is contrary to all tenets of fair hearing and constitutionalism. A fair hearing connotes a fair trial, a trial as in this case where the right of a party to call and examine his witnesses freely cannot be said to be fair if the right became foreclosed after calling only 1 of 17 witnesses listed. In the instant case, there is a fundamental breach of procedure, which negates the fair hearing of the appellant, constitutes an infraction of due process and works to vitiate the proceedings of the Tribunal.This is an appropriate time to employ the aphorism that even though justice delayed is justice denied justice rushed is indeed in this circumstance justice crushed.
Furthermore, and still on issue No. 1, learned counsel for the Appellant was right to have reminded this court that the Tribunal by its action was totally unmindful of the fact that the petitioner appellant had an alternative claim to wit “the declaration and return of the 1st Respondent…being illegal and unlawful, be nullified and accordingly set aside and a fresh election ordered in the Constituency.”
Obviously, the proof of the Appellant’s alternative ground concerning invalidity of the return of the 1st Respondent arising from non-compliance could without any reference to the scores of the candidates lead to nullification of the election for the constituency. In the instant case, the Tribunal had technically decided Appellant’s alternative relief even when he was not allowed to lead evidence or sufficient evidence on the issue.
Issue No. 1, is resolved in favour of the Appellant.
On issue No. 2, in proof of his case, the appellant as PW1, tendered the certified true copies of the register of voters for 20 polling units, on 6/9/2011. In reaction, the 2nd and 3rd respondent’s counsel stated inter alia that:
“We remain neutral in respect of the admissibility of the voter register.”
The 1st respondent’s counsel, on his part, opposed the admission of the register of voters into evidence on the sole ground that “not having been certified by the public officer having legal custody of them, the same not having satisfied the provision of section 104 (1) of Evidence Act 2011 is-inadmissible.” In reply to the objection, appellant’s counsel submitted inter alia to the Tribunal that “INEC has not denied issuing these documents to us”
The Tribunal upheld the objection in these terms:
“…on the face of the documents sought admitted in evidence it is clear that it was certified by Engineer Moses Udoh, an Administrative Secretary, Imo State, Imo State INEC Office ….. on the face of the documents now sequel to be tendered it was certified neither by the Electoral Officers for the Local Government Area not (sic nor) by the Resident Electoral Commissioner …. Therefore the administrative Secretary not being in custody of voters register cannot certify them. The Tribunal hereby uphold the objection…. That these 20 voters register certified by Engineer Moses Udoh, Administrative Secretary are inadmissible in law.”
Before us in this Court, the Respondents defended the position taken by the Tribunal and insisted that the said Moses Udoh not being the “Public Officer having custody of the Voters Register is incompetent to issue out a certified true copy thereof and the purported certified true copy issued out by him to the Appellant, is inadmissible in law.”
Learned counsel for the Appellant on the other hand relied on the provisions of Sections 104 (3) and 168 (2) of the Evidence Act and tried to distinguish the case of Godwill Trust Investment LTD vs. Witt and Bush LTD (2011) 8 NWLR (Pt. 1250) 500, 536, 542 as not applicable to, the facts and circumstances of the case before the Tribunal.
Sections 1 04 (3) and 168 (2) of the Evidence Act 2011 read as follows:
104 (3) Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this Section.
168 (2) When it is shown that any person acted in a public capacity it is presumed that he had been duly appointed and was entitled so to act.”
By Section 104 (3) of the Evidence Act both the Resident Electoral Commissioner and his assistance, the Administrative Secretary are authorized to deliver certified copies of the documents i.e the voters register sought to be tendered. And, by Section 168 (2) the signature and stamp of the Administrative Secretary having been indicated on the documents, the Appellant secured a presumption that the Administrative Secretary acted in a public capacity and was appointed and entitled to issue the certified true copies. After that stage, it became incumbent on the Respondents to rebut the presumption created by Section 168 (2) of the Evidence Act. There was no evidence on record to show that the Respondents rebutted the presumption in favour of the Appellant by virtue of Section 168 (2) of the Evidence Act.
Truly and as rightly pointed out by the learned senior counsel for the Appellant, the case of Godwill Trust Investment LTD. vs. Witt & Bush LTD (supra) relied upon the Tribunal in rejecting the voters register is indeed distinguishable and totally inapplicable to the facts and circumstances before them. The Tribunal was clearly in error of law to have rejected the voters register.
Issue No. 2 is also resolved in favour of the Appellant.
Appellant’s Issue No. 3 is dependent on the resolutions of Issues Nos 1 and 2 and does not have any utility outside of Issues 1 and 2. It is therefore unnecessary to separately deal with the issue. Having resolved the two main issues in favour of the Appellant, the appeal succeeds.
The decision/Ruling of the National and State Houses of Assembly Election Tribunal, Owerri (Coram: Umeokoye E. Essang, J (Chairman), A. M. Yakubu, J. and A. O. Salihu, J) delivered on the 22nd day of September, 2011 dismissing the Appellant’s petition is accordingly set aside.
Accordingly, it is hereby ordered that the Appellant’s petition shall be heard de-novo by another Tribunal other than that of Justices U.E. Essang, J (Chairman) A. M. Yakubu and A.O. Salihu.
No orders as to Costs.
UWANI MUSA ABBA AJI (PJ), J.C.A: I have had a preview of the judgment just delivered by my Learned brother, M. A. Owoade, JCA and I agree entirely with the reasoning and conclusion that the appeal has merit and it is also allowed by me.
The Appellant and the 1st Respondent contested the election to the House Assembly for Imo State, for Njaba State Constituency conducted by the 2nd Respondent on the 26th April, 2011. The 1st Respondent was returned as the winner of the election and the Appellant was dissatisfied and presented a petition to the National and State Houses of Assembly Election Tribunal, Owerri. The reliefs sought are very well stated in the lead judgment of my Learned brother.
At the conclusion of the testimony of PW1, the Petitioner, the trial Tribunal Suo motu raised the issue as to whether, having regard to the evidence, even if the results in all the 19 polling units tendered in evidence by the Petitioner are cancelled by this Tribunal, can the cancellation adversely affect the outcome of the said election? The Tribunal after hearing arguments from respective Counsel dismissed the petition of the ground that it would amount to an exercise in futility for Tribunal to continue with the hearing of the petition.
I just wish to adumbrate further on the 1st issue for determination formulated by the Appellant, whether the Tribunal was in error when it prevented the Appellant from presenting his case in full.
The trial of the petition started with the evidences of PW1 and soon after the Tribunal called on counsel to address it on the substantiality of the petition in the light of the evidence including documentary evidence that had been adduced and the Lower Tribunal proceeded to dismiss the petition on the ground that it would be an exercise in futility to proceed with the hearing of the petition.
It should be noted that the petitioner frontloaded the evidence of 17 witnesses in the petition in respect of which he the petitioner testified as PW1. Then, what about the evidence of the remaining 16 witnesses that are yet to testify? Is that a fair assessment of a fair trial? That is certainly NOT justice. There is no justice to a petitioner who is compelled by the Tribunal to close his case just after the evidence of one out of 17 witnesses that he intends to call in proof of his petition and then to dismiss the petition notwithstanding the reliefs sought by the Appellant in the petition. There is no evidence to objection before the Tribunal as to the competence of the petition raised by any of the Respondents for lack of cause of action or jurisdiction of the Tribunal to entertain same.
This singular action by the Tribunal is contrary to the principle of fair hearing which connotes a fair trial, which is a cardinal principle of air justice system where the right of a party to call and examine his witnesses freely is guaranteed by the constitution of the Federal Republic of Nigeria 1999. See Section 36(1) of the 1999 Constitution (as amended).
The right of a person to a fair hearing is so fundamental to our concept of justice that it can neither be taken away by the court nor Tribunal or any statute whether expressly or by implication. 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.
As said by my Learned brother, Justice rushed is indeed Justice crushed. Justice may be slow but it will surely arrive at its destination.
It is for this reason and the fuller reasons in the lead judgment of my Learned brother M. A. Owoade, JCA that I also allow this appeal and remit the case to the Lower Tribunal for trial de novo by a panel other than those that heard and determine the petition, the subject of the present appeal. I endorse the consequential order as to costs.
HARUNAM M. TSAMMAN, J.C.A.: I had the privilege of reading in advance the judgment delivered by my learned brother M. A. Owoade, JCA.
I am in complete agreement with the reasoning and conclusion reached by my learned brother. I have nothing else useful to add. I also abide by all the orders made in the judgment including the order as to cost.
Appearances
P. U. Nnodim, Esq.For Appellant
AND
E. O. Onyeman Esq, with Ijezie, Esq, for the 1st Respondent.
O. N. Azode, Esq, for the 2nd and 3rd Respondents.For Respondent
