MR. HILLARD ETTAGBO ETTAH & ANOR v. EYO UDUAK AKIBA & ORS
(2011)LCN/4858(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of October, 2011
CA/C/NAEA/249/2011
RATIO
RIGHT TO FAIR HEARING: RIGHT OF A PARTY IN A DISPUTE BEFORE A JUDICIAL BODY TO BE ENTITLED TO BE GIVEN AN OPPORTUNITY TO BE HEARD OR TO PRESENT HIS CASE
It is also a basic fundamental right that every party in a dispute before a judicial body is entitled to be given an opportunity to be heard or to present his case. Trial by ambush is completely antithetic to fair hearing. It is not tolerated in any jurisprudence. It is simply offensive. PER EJEMBI EKO,J.C.A
RIGHT TO FAIR HEARING: WHETHER THE PETITIONERS’ FUNDAMENTAL RIGHT OF FAIR HEARING WAS BREACHED WHEN THEY WERE NEITHER NOTIFIED OF THE STAND-DOWN NOR THE TIME THE PETITION WAS STOOD DOWN TO
The maxim “audi alteram partem is one of the cardinal principles of Law. A party to o petition cannot be shut out. The court have always maintained that justice must be done at all times for all the parties. Not only must justice be done it should be seen to be done. In the instant case, the petitioners were not aware of the stand-down nor the time the petition was stood down to. For this reason alone, the petitioners Fundamental Right of fair hearing was breached. PER UZO I. NDUKWE-ANAYANWU, J.C.A.
Before Their Lordships
UZO I. NDUKWE-ANYANWUJustice of The Court of Appeal of Nigeria
EJEMBI EKOJustice of The Court of Appeal of Nigeria
JOSEPH TINE TURJustice of The Court of Appeal of Nigeria
Between
1. MR. HILLARD ETTAGBO ETTAH
2. ACTION CONGRESS OF NIGERIAAppellant(s)
AND
1. EYO UDUAK AKIBA
2. THE RESIDENT ELECTORAL COMMISSIONER
3. THE INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)
4. THE PEOPLE’S DEMOCRATIC PARTY (PDP)Respondent(s)
EJEMBI EKO,J.C.A: (Delivering the Leading Judgment): The 2nd Appellant, a political party, sponsored the 1st Appellant as a candidate for the election to Cross River House of Assembly for Calabar Municipality State Constituency. The election was conducted on 26th April, 2011. The 2nd and 3rd Respondents returned the 1st Respondent, sponsored by the 4th Respondent, as the candidate duly elected in the election for the said Calabar Municipality constituency. Aggrieved by this return the Appellants filed their petition challenging the return on 17th May, 2011
The petition was before the Election petition Tribunal (coram; J. M. Nabaruma, J, S. u. Dikko, J, and A. K. Baaki, J)
On 16th August, 2011 the Tribunal No. 1 transferred the petition to Tribunal No. 2 (page 449 of the Record) without any application from any of the parties, the Tribunal No. 1, on 7th September, 2011, suo moto rescinded the transfer order and thereafter fixed the petition for hearing on 13th September, 2011. See page 450 of the Record. On the said 13th September, 2011, the parties were in attendance before the Tribunal No. 1, which again adjourned the petition to 22nd September, 2011 for hearing.
It appears from the Record that the Tribunal No. 1 did not, on the said 22nd September, 2011, start sitting at 9.00a.m. In the Ruling of 22nd September, 2011, the Tribunal No. 1 stated as follows at page 454 of the Record:
This matter was adjourned to today on the 13th September, 2011 for hearing. On the application of the 4th Respondent’s counsel Chief Ogar Ndoma Egodo, the matter was stood down to 2.00p.m. It is now 2.24p.m and neither the petitioners who are supposed to open their case today nor their counsel are in court and no explanation has been forwarded to the Tribunal by them to explain the cause of their absence.
We, therefore, conclude that the petitioners have lost interest in their petition. There is, in this light, on good reason to continue to maintain the petition on our cause list.
Accordingly, the petition is struck out.
The fetter of the 4th Respondent’s counsel that gave rise to the purported stand down of the hearing is at page 499 of the Record. The letter, contrary to the usual courtesy at the Bar, was not copied to any of the parties nor their counsel. It is safe to conclude that none of the parties including the petitioners, except the Tribunal No. 1, the counsel to the 4th Respondent and Mrs. Andem-Ewa, SAN of counsel to 1st Respondent knew that the hearing of the petition had been stood down to 2.00p.m of 22nd September, 2011 . There is nothing on the Record showing that the Tribunal No. 1 acceded to the stand-down request and fixed the hearing to commence at 2.00p.m of 22nd September, 2011. It is only in the Ruling, above reproduced, that the Tribunal No. l alluded to the fact that the hearing of the petition was stood down, or adjourned to 2.00p.m that day. It is also noteworthy that Mrs. Andem-Ewa, SAN the only counsel fortunate to be at the Tribunal at the material time did not pray for the order striking out the petition.
The order of the Tribunal No. 1 on 22nd September, 2011 striking out the petition for indiligent prosecution has prompted the appeal of the aggrieved petitioners. The notice of appeal has included therein a ground, ground 3, complaining that the Tribunal No.1 erred in law when it further assumed jurisdiction over the petition and thereafter on 22nd September, 2011 struck out, having on 16th August, 2011 transferred it to another panel of the Election Tribunal. The grouse of the Appellants here, is directed against the recession order Tribunal No.1 made on 7th September, 2011 at page 450 of the Record.
The recession order of 7th September 2011 was an appealable order or decision. Therefore, upon reading the Notice of Preliminary objection of 25th October, 2011 and argued in the 2nd and 3rd Respondents’ brief filed on 25th October, 2011 and hearing Mr. Ukweni of counsel on the objection, I am satisfied that the Appellants, as petitioners, had 21 days from 7th September, 2011 to appeal against this order rescinding the order transferring the petition to Tribunal No. 2 for hearing. Paragraph 6 of the Election Tribunal and Court Practice Directions, 2011 gives the petitioners, as parties aggrieved by the said transfer order, 21 days within which to appeal the rescission order. The preliminary Objection is accordingly allowed. Consequently, Ground 3 of the grounds of appeal and the issue formulated therefrom in the Appellants, Brief are hereby struck out for being incompetent.
Having read and considered the briefs of argument exchanged I think the only issue standing out for consideration in this appeal is the propriety of the Tribunal No. l striking out the petition on the ground that the petitioners and or their counsel were not at the Tribunal No. 1 at 2.00p.m on 22nd September, 2011 when the hearing of the petition was to commence.
Mr. Egodo’s letter on which the Tribunal No. 1 purportedly acted on to stand-down the commencement of hearing was not communicated to the petitioners. The Tribunal No. 1 did not also make known to the petitioners that their petition had been stood-down for hearing at 2.00p.m on 22nd September, 2011.
The record of the Tribunal No. 1 does not show that there was an order, made known to all parties, that the hearing was to commence at 2.00p.m. The Tribunal, as it appears, had remained in the chambers incommunicado until 2.24p.m when it made the order on 22nd September, 2011. The point being made under this issue is whether the Petitioner/Appellants were, in the circumstances not denied their fundamental right to fair hearing by the order striking their petition on 22nd September, 2011. Section 36 (1) of the Constitution 1999, as amended, guarantees the Appellants’ right to fair hearing.
The Appellants, in my view, have made the point when they submit that the constitutional provision of fair hearing simply requires that parties be heard before an adverse judgment is delivered against them. The principle of audi alteram partem, meaning “hear the other party”, enjoins the Tribunal to have heard the petitioners on the order standing down the petition for hearing at 2.00p.m on 22nd September, 2011 before proceeding to enforce it against them and striking out the petition for their absence at the appointed hour for hearing when infact the petitioners were not aware that their petition was meant to be heard at 2.00p.m on 22nd September, 2011. It is not enough for the Tribunal to insist that the petition was adjourned to 22nd September, 2011 . Since the Tribunal obliged a “stand-down to 2.00p.m” at the instance of 4th Respondent’s counsel, the fairness of the matter demands the Tribunal to have put all parties, including the petitioners on notice that the hearing adjourned to 22nd September, 2011 was to commence at 2.00p.m. Let it be restated that equality is justice. It is also a basic fundamental right that every party in a dispute before a judicial body is entitled to be given an opportunity to be heard or to present his case. Trial by ambush is completely antithetic to fair hearing. It is not tolerated in any jurisprudence. It is simply offensive.
The Tribunal No.1 from the peculiar circumstances of the appeal, had denied to the Appellants an opportunity to hear the order, if any, standing down their petition for hearing at 2.00p.m on 22nd September, 2011 . Consequently, the order striking out their petition on the ground that they were absent at 2.00p.m when their petition was called for hearing was clearly an order made in gross violation of their right to fair hearing. This issue is accordingly resolved in favour of the Appellants against the Respondents.
The appeal is hereby allowed. The order striking out the petition No.EPT/CR/SA/9/2011 is hereby set aside. The petition is hereby remitted to another panel, differently constituted, for trial de novo.
Parties shall bear their respective costs.
UZO I. NDUKWE-ANAYANWU, J.C.A.: I had the privilege of reading in draft form, the judgment just delivered by my learned brother Ejembi Eko, JCA.
I agree with him that all parties to a petition must be accorded fair hearing.
The maxim “audi alteram partem is one of the cardinal principles of Law. A party to o petition cannot be shut out. The court have always maintained that justice must be done at all times for all the parties. Not only must justice be done it should be seen to be done.
In the instant case, the petitioners were not aware of the stand-down nor the time the petition was stood down to.
For this reason alone, the petitioners Fundamental Right of fair hearing was breached. For this and the fuller reasons in the lead judgment, I too must allow this appeal. The judgment of the tribunal is hereby set aside. I abide by all the consequential orders contained in the lead judgment including that as to costs.
JOSEPH TINE TUR, J.C.A.: I have read the judgment delivered by my Lord, Ejembi Eko, JCA and I concur.
On the 22nd September, 2011 learned counsel to the 4th Respondent wrote to the Tribunal as follows:
“22nd September, 2011.
The Chairman,
National and State Legislative
Assembly Election Petition Tribunal,
High Court Complex,
Calabar.
Dear Sir,
RE: SUIT NO.EPT/CR/SA/9/2011
MR. HILLARD ETTAGBO ETTA & ANOTHER
v.
EYO UDUAK AKIBA & 3 OTHERS
APPLICATION FOR A STAND DOWN
We write as Solicitors representing the 4th Respondent in the aforementioned suit to apply for a stand down to 2pm subject to the Honourable Tribunal’s convenience to enable us appear in the matter.
Our application is predicated on the fact that we are appearing at the Court of Appeal in Suit No.CA/C/NAEA/214/2011 ODEY OYAMA & ANOTHER v. AGBIJI MBEH AGBIJI & 2 OTHERS which was suddenly fixed yesterday 21/09/2011 at that Court to coincide with this present matter.
We are sincerely very sorry at the development.
We remain very grateful to my Lords for your usual co-operation.
Accept the assurances of our esteem regards.
Yours faithfully,
For: Ndoma Egodo, Regina & Co.
Signed
Chief Ogar Ndoma Egodo, Esq.
4th Respondent Solicitor.”
The letter was not copied to any of the parties nor their learned counsel. When the petition was called for hearing at 2:24pm the Court’s record reads as follows:
“Parties absent.
N. Andem-Ewa SAN for the 1st Respondent with A.E. Attih, F.U. Okole, v. Oyeyapo and T. Adewale (Miss) N.O. Amah holding brief for D.D. Dodo SAN for 2nd and 3rd Respondents.
No appearance for the Petitioner and 4th Respondent.
Andem-Ewa SAN: This matter has been slated for hearing. The Petitioner is supposed to open his case.
Matter was adjourned to today on 13th September, 2011 for hearing.
RULING:
This matter was adjourned to today on the 13th September, 2011 for hearing. On the application of the 4th Respondent’s Counsel Chief Ogar Ndomu Egodo, the matter was stood down to 2:00pm. It is now 2:24pm and neither the Petitioners who are supposed to open their case today nor their Counsel are in Court and no explanation has been forwarded to the Tribunal by them to explain the cause of their absence.
We, therefore, conclude that the Petitioners have lost interest in this petition. There is, in this light, no good reason to continue to maintain the petition on our cause list.
Accordingly, this petition is struck out.
Hon. Justice G.M. Nabaruma
Chairman
Sgd. Sgd.
Hon. Justice S.U. Dikko Hon. Justice A.K. Baaki
Member Member
A cursory examination of what transpired on 22-09-2011 at 2:24pm will show that all the parties were absent at the Tribunal when Andem-Ewa SAN appeared with a team of lawyers for the 1st Respondent. The learned silk held brief for D.D. Dodo SAN for 2nd and 3rd Respondents. Neither the learned Counsel for the 4th Respondent nor his client was in the Tribunal at 2:24pm. Andem-Ewa SAN did not apply that the petition should be struck out. There is nothing on record to show that the Tribunal sought to know from Andem-Ewa SAN nor the clerks of the Tribunal why the parties nor their learned Counsel were absent when the petition was called for hearing at 2:24pm. The Tribunal acted suo motu and struck out the petition thereby shutting out the petitioners from the temple of justice.
Paragraph 20(1) (a)-(b)(i)-(iii) and (2) of the 1st Schedule to the Electoral Act No.6 of 2010 as amended empowers the Tribunal to fix the time and place of hearing the petition. Paragraphs 23(1)-(5) of the 1st Schedule is authority that the Tribunal can postpone hearing to another time or date as may be considered appropriate having regard at all times to the need for speedy conclusion of the hearing of the petition. The Tribunal had the powers to act on the letter of the learned Counsel to the 4th Respondent by standing down the petition for hearing at 2.00pm or 2:24pm or refusing the application. That was a matter involving an exercise of discretion which an Appeal Court, except there is a miscarriage of justice, hardly questions. But given the circumstances of this case, can one readily say or arrive at the conclusion there was no miscarriage of justice? I think there was. The reasons are as follows:
The 4th Respondent’s learned counsel who applied for the stand-down till 2.00 p.m. and his client were not in the Tribunal when the petition was at 2.24 p.m. struck out, not even on the application of Andem-Ewa (SAN) who appeared for 1st Respondent and held brief for 2nd and 3rd Respondents’ learned counsel. A party is not entitled to any relief from a Tribunal or a Court of justice not asked for by Counsel or any party. See Nigeria Housing Development Society vs Mumin, (1 977) 2 SC 57 at 81; Egri vs Uperi (1974) NMLR. 22; Njoku vs Eme (1973) 5 S.C. 293 at 300; Obayagbona vs Obazee (1972) 5 S.C. 247 at 254 and Ekpenyong vs Nyong (1975) 2 S.C. 71.
The fact that election petitions are to be speedily or expeditiously tried and determined is not a licence to sacrifice justice and equity on that plat-form’ The Tribunal should have borne in mind that no application shall be brought or entertained to re-list a petition struck out under paragraph 46(1) of the 1st schedule to the Electoral Act No.6 of 2010 as amended which reads as follows:
“46(1) when a petition comes up for hearing and neither party appears, the Tribunal or court shall, unless there ere good reasons to the contrary, strike out the petition and no application shall be brought or entertained to re-list it.”
(2) When a petition comes up for hearing, if the petitioner appears and the respondent does not appear the petitioner may prove his petition so far as the burden of proof lies upon him and the Tribunal or court shall enter a final judgment in the petition.
(3) When a petition comes up for hearing, if the respondent appears and the petitioner does not appear, the respondent shall be entitled to final judgment dismissing the petition.”
The governing phrase in paragraph 46-(1) of the 1st Schedule supra is, “…unless there are good reasons to the contrary, …” This presupposes that before a Court or Tribunal strikes out a petition
on the grounds that neither the petitioner nor Counsel appeared when it was called for hearing, the Tribunal or Court is bound in law and in conscience to ascertain if there were good or not, reasons for their absence. If there were, the Tribunal or Court ought not to strike out the petition. If there are none the petition shall be struck out. In this case the Tribunal did none of the above but simply struck out the petition holding there were no good reasons for the absence of the petitioners nor Counsel when there was no such evidence from any body. The Appeal Court acts on the records before it. See Q vs Ogodo (1961) 4 All NLR 700; Q vs Isa (1961) 4 ANLR 668; NPM Co. Ltd vs CNDETSS (1971) 1 NMLR 226 and Enekebe vs Enekebe (1964) NMLR 42.
I am of the humble opinion that this is an appropriate situation where, sitting as a Court of Appeal, I can review and reverse the discretionary powers exercised by the Tribunal in striking out this petition for the reasons given when the petition was called for hearing. See Gulab (Nig.) Ltd vs Sachdeva (1965) NMLR 398; Omadibe vs Adajeroh (1976) 12 SC 87; University of Lagos vs Aigoro (1935) 1 NWLR (Pt.1) 143; Bank of Baroda vs Merchant Bank Ltd (1987) 3 NWLR (Pt.60) 233.
For the above reasons, I also allow the appeal and abide by the orders made by my Lord.
Appearances
W. Ballantyne, Esq. with Hilary Njoku, Esq,For Appellant
AND
E.A- Attih, with F. U. Okoki, Esq. for the 1st Respondent
Mba E. Ukweni Esq. with chief P. A. Akpoke, O. E. Horsfall, Esq.
and A. N. Ekwumankama (Mrs.) for the 2nd -3rd Respondents
Chief E. O. Egodo for the 4th Respondent.For Respondent
