OFONGO v. APC & ORS
(2021)LCN/15494(CA)
In The Court Of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Friday, January 29, 2021
CA/PH/495/2020
RATIO
FAIR HEARING: AUDI ALTERAM PARTEM PRINCIPLE
Where a person’s legal rights or obligations are under attack, he must be given adequate opportunity of being heard before any adverse decision is taken against him with regard to such rights or obligations.
“Audi alteram partem” principle as guaranteed under Section 36 (1) of the 1999 Constitution as amended remains a binding and indispensable requirement of justice applicable to and enforceable by all Courts of law. The principle affords both sides to a dispute equal opportunity of presenting their case to enable the enthronement of justice and fairness.
In the application of the principle, a hearing is said to be fair and in compliance with the dictates of the Constitution when, inter-alia, all the parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused or denied a hearing or the opportunity of being heard, the Court’s proceedings being perverse will be set aside on appeal. See AKPAMGBO-OKADIGBO & ORS V. CHIDI & ORS (2015) LPELR – 24564(SC); Otapo V. Sunmonu (1987) 2 NWLR (pt. 58) 587; Aladeloyinbo V. Adewumi (1990) 6 NWLR (pt. 154) 98; Mohammed & Anor V. Olawunmi (1990) 2 NWLR (Pt. 133) 485; Olumesan v. Ogundepo (1996) 2 NWLR (pt. 433) 628. PER UCHECHUKWU ONYEMENAM, J.C.A.
EVIDENCE: ONUS OF PROOF IN A DECLARATORY ACTION
As set as the law on admission is, there is however an exception to the law that facts admitted need no further prove. Where the Plaintiff/Claimant/Petitioner seeks declaratory reliefs, the position of the law differs in the circumstance. The law is settled that declaratory reliefs cannot succeed even on an admission by the opposing side. The reason is that a declaratory action is discretionary in nature. It seeks an equitable relief in which the Plaintiff prays the Court, in the exercise of its discretionary jurisdiction, to promote or declare an existing state of affairs in law in his favour, as may be discernible from the averments in the statement of claim or pleadings from the claimant. Squarely, the onus of proof in a declaratory action lies on a Petitioner/Claimant/Plaintiff. He must succeed on the strength of his own case and not on the weakness of the defence, not even on admission of the defence, except where the case for the defence supports the Respondents case. See Akande V. Adisa (2012) LPELR-7807(SC) 38-39; AG Cross-River V. AG Federation (2012) LPELR-9335(SC) 48; Buhari V. Obasanjo (2003) 17 NWLR (Pt. 850) 587; & CPC V. INEC (2011) 8 NWLR (Pt. 1279) 493. Also in the case of Omisore V. Aregbesola (2015) LPELR-102-103, per Fabiyi, J.S.C. held as follows:
“I should note it briefly that the Appellants sought declaratory reliefs before the Tribunal. They had the burden of proof to establish such declaratory reliefs to the satisfaction of the Court or Tribunal as herein. Such declaratory reliefs are not granted even on admission by the Defendant where a claimant, as herein, fails to establish his entitlements to the declaration by his own evidence. See Dumez Nig. Ltd V. Nwakhoba (2008) 18 NWLR (Pt. 119) 361, 373; Ucha V. Elechi (2012) MRSJ Vol. 179, 104; (2012) 4 SCM 28; (2012) 12 NWLR (Pt. 1317) 230. See also INEC V. ADELEKE & ORS (2019) LPELR – 47454.” PER UCHECHUKWU ONYEMENAM, J.C.A.
WORDS AND PHRASES: MEANING OF AN ADMISSION
An admission is an act of acceptance or concession to a factual situation. The Apex Court inAlhassan & Anor V. Ishaku (2016) LPELR-40083(SC) 20, E-F, Per Rhodes- Vivour, J.S.C. succinctly stated that:
“Sections 20 and 21 of the Evidence Act provides for admission.
Admissions in pleadings are a waiver of all controversy on the fact the pleader admits.“ PER UCHECHUKWU ONYEMENAM, J.C.A.
JURISDICTION: CONSIDERATIONS TO DETERMINE THE JURISDICTION OF A COURT
In determining jurisdiction of a Court, what the Court considers is the Originating Process and the Statement of Claim of the Plaintiff. In the instant case, where the Originating Process is an Originating Summons, the Court will look at the Originating Summons along with the supporting affidavit to determine its jurisdiction. See ABDURRAFIU ADESINA BARUWA V. ALL PROGRESSIVE CONGRESS & ORS (2019) LPELR-47723 (CA); ANYANWU V. OGUNEWE (2014) ALL FWLR (pt. 738) 1012. PER UCHECHUKWU ONYEMENAM, J.C.A.
Before Our Lordships:
Uchechukwu Onyemenam Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Mohammed Baba Idris Justice of the Court of Appeal
Between
HON. HENRY DANIEL OFONGO APPELANT(S)
And
- ALL PROGRSSIVE CONGRESS 2. CHIEF ABEL EBIFEMOWEI 3. BARR. FESTUS DAUMIEBI SUNDAY 4. INDEPENDENT NATIONAL ELECTORAL COMMISSION RESPONDENT(S)
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This appeal is as a result of the dissatisfaction of the Appellant against the judgment of the High Court of Bayelsa State, wherein the learned trial Judge T. Y. ABASI, J., on 2nd December, 2020 entered judgment in favour of the Respondents as follows:
“Relief C and D in the Originating Summons having been established by credible evidence is hereby granted.
In all that has been said, I hold that the case of the Claimant succeeds in part and I hereby make the following orders.
1. It is hereby declared that by the proper calculation of the result of the primaries from the various wards of Bayelsa Central Senatorial District held on 3rd September, 2020, it was the Claimant and not the 3rd Defendant that scored the second highest majority of votes cast at the primaries.
2. It is hereby declared that the Claimant having scored the second highest majority of lawful votes of 3,777 (Three Thousand Seven Hundred and Seventy-Seven votes) is the candidate with the second position in the 1st Defendant’s primary election held on 3rd September, 2020 for the Bayelsa Central Senatorial Bye-Election.” The Appellant’s case commenced by a suit via an Originating Summons filed on 16th September, 2020 challenging the nomination of the 2nd Respondent and the declaration of the 3rd Respondent as the aspirant with the second highest vote cast at the primary election of the 1st Respondent. Not satisfied with the decision of the trial Court, the Appellant appealed by a Notice of Appeal filed on 9th December, 2020. See pages 439-443 of the records. The Appellant appealed against the part of the judgment which resolved the issue of not proving the allegation of false declaration in Form EC9 against the Appellant.
The appeal came up for hearing on 27th January, 2020. The parties were absent. Eyitayo Fatogun, Esq., appeared for the Appellant/Cross-Respondent; K. E. Ejelonu, Esq., was for the 2nd Respondent, while I. S. Damabide represented the 3rd Respondent/Cross-Appellant. Both the 1st and 4th Respondents were served with the hearing notice for the proceedings of 27th January, 2020 but they were neither in Court nor represented. Wherefore the Court proceeded to hear the appeal. Howbeit, before the appeal was argued,
Mr. Ejelonu for the 2nd Respondent argued his preliminary objection.
Mr. Ejelonu referred to and adopted the Preliminary Objection raised in his brief filed on 29th December, 2020. The objection and the argument thereon are at pages 2-9 of the 2nd Respondent’s brief. He urged the Court to uphold the Preliminary Objection and to strike out the appeal. In reply to the Preliminary Objection, Mr. Fatogun referred to the Appellant’s reply filed on 4th January, 2021. He adopted his argument at pages 1-3 of the Appellant’s reply in urging the Court to dismiss the Preliminary Objection.
The appeal was then argued. Mr. Fatogun referred to and adopted Appellant’s Brief filed 22nd December, 2020 and reply brief filed 4th January, 2021 in urging the Court to allow the appeal. The learned counsel for the Appellant formulated a sole issue for determination from the grounds of appeal filed. The sole issue is thus:
Whether the Honourable trial Court was right when it held that the Appellant had not discharged the burden of proving that the 2nd Respondent stated falsely in his Form EC9 that he was told he had been dismissed from the Nigeria Air-force when in fact, he was never dismissed but was a deserter.
For the 2nd Respondent, Mr. Ejelonu adopted and relied on the 2nd Respondent’s brief of argument incorporating Preliminary Objection, filed on 29th December, 2020. In the said Respondent’s brief of argument, a sole issue was raised for determination thus:
Whether the honourable trial Court was right when it held that the Appellant had not discharged the burden of proving that the 2nd Respondent gave false information on oath, when the said 2nd Respondent stated falsely in his Form EC9, that he was told he had been dismissed from the Nigeria Air-Force when in fact he was never dismissed but was a deserter?
For the 3rd Respondent, Mr. Damabide adopted and relied on the 3rd Respondent/Cross-Appellant’s brief of argument filed on 4th January, 2021 wherein he incorporated arguments of his cross-appeal. In the said brief of argument, the 3rd Respondent adopted the sole issue distilled by the Appellant. The learned counsel noted that the 3rd Respondent’s reply to the main appeal in his brief of argument is what he titled issue 2 and the same is found at pages 5 to 6 of the referred brief.
The 1st and 4th Respondents did not file any brief in the appeal and had nothing to urge on the Court.
From the grounds of appeal, I view that the sole issue raised by the Appellant which said issue the 3rd Respondent adopted will determine this appeal. However I shall first determine the 2nd Respondent’s Preliminary Objection as it touches on the jurisdiction of the Court to hear and determine the appeal.
PRELIMINARY OBJECTION
The 2nd Respondent by way of Preliminary Objection filed on 29th December, 2020 raised a sole issue for determination thus:
Whether this suit commenced via Originating Summons by the Appellant at the trial Court is not statute barred making the trial Court to lack the requisite jurisdiction to have entertained the matter in the first place.
The learned counsel contended that by the Originating Summons filed by the Appellant at the trial Court, the cause of action arose on 21st August, 2020 when the 2nd Respondent and other aspirants filed their forms with the 1st Respondent. It was submitted by the learned Counsel that, as the instant suit was filed on 16th September, 2020, while the cause of action arose on the 21st August, 2020 and the suit being a pre-election, the same is caught up by the limitation period as stipulated in Section 285 (9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended), which provides that all pre-election matters shall be filed not later than 14 days from the date the event occurred or the date when the decision/action complained of was made. He relied on the case of ABDULLAFIU ADESINA BARUWA V. ALL PROGRESSIVE CONGRESS & ORS (2019) LPELR– 47723(CA).
The learned Counsel in conclusion contended that a Court cannot expand its jurisdiction beyond the limit imposed by law. He cited the case of SOCIETY BIC S. A V. C. I LTD (2014) ALL FWLR (Pt. 739) 1212. He urged the Court to uphold the Preliminary Objection.
The Appellant filed a reply to the Preliminary Objection of the 2nd Respondent on 4th January, 2021. The learned counsel submitted that the issue raised by the 2nd Respondent that the suit is statute barred was decided by the trial Court and the decision not appealed against is binding on the parties. He referred the Court to the case of OGUNYADE V. OSHUNKEYE (2007) ALL FWLR (389) 1175 at 1206-1207, Para H-B (SC). It was further submitted that assuming without conceding that the 2nd Respondent did not raise the said issue at the trial Court and intends to raise the same as fresh issue on appeal, he ought to seek and obtain the leave of the Court to raise the issue. He referred the Court to the case of S.P.D.C. (NIG) LTD V. EMEHURU (2007) ALL FWLR (pt. 381) 1694 at 1705 Paras. C- E (CA).
The learned counsel urged the Court to discountenance the Preliminary Objection of the 2nd Respondent and determine the appeal on its merits.
DETERMINATION OF PRELIMINARY OBJECTION
For the fact that this Preliminary Objection borders on Jurisdiction, the same cannot be ignored by the Court since any objection stemming on jurisdiction can be raised in any manner and even for the first time on appeal even at the Supreme Court with or without leave, so long as the parties particularly the party that will be adversely affected is given an opportunity to address the Court on the issue. See JEV V. IYORTYOM (2014) FWLR (Pt. 747) 749; NOBIS-ELENDU V. I. N. E. C (2015) ALL FWLR (Pt.812) 1505; NNONYE V. ANYICHIE (2005) ALL FWLR 253. By the position of the law therefore, the argument of the 2nd Respondent that granted the Appellant was raising the issue of jurisdiction for the first time, he needed to seek and obtain the leave of the Court before he could raise the issue, cannot be sustained since the parties were granted the opportunity to be heard on the statute barred status of the suit filed at the trial Court.
In determining jurisdiction of a Court, what the Court considers is the Originating Process and the Statement of Claim of the Plaintiff. In the instant case, where the Originating Process is an Originating Summons, the Court will look at the Originating Summons along with the supporting affidavit to determine its jurisdiction. See ABDURRAFIU ADESINA BARUWA V. ALL PROGRESSIVE CONGRESS & ORS (2019) LPELR-47723 (CA); ANYANWU V. OGUNEWE (2014) ALL FWLR (pt. 738) 1012.
From the grounds for the preliminary objection and paragraphs 16, 17 and 24 of the affidavit in support of the Originating Summons filed by the Appellant at the trial Court, the Appellant at the trial Court sought the disqualification of the 2nd Respondent on the allegation that he supplied false information to the 1st Respondent in his nomination form. The 2nd Respondent’s objection is that the Appellant’s Originating Summons filed on 16th September, 2020 is statute barred as the same was filed contrary to the dictate of Section 285 (9) of the 1999 Constitution as amended. It is the 2nd Respondent’s contention that the cause of action arose on 21st August, 2020 when the 2nd Respondent filed his form with the 1st Respondent. From pages 418 to 421, the learned trial Judge considered the issue as to when the cause of action accrued and arrived at the conclusion that the cause of action at best arose on the date the 2nd Respondent’s form and information was submitted to the 4th Respondent (INEC) and not on the date the 2nd Respondent submitted his form and information to the 1st Respondent (APC) since all through the affidavit in support of the Originating Summons the Appellant did not state when the 4th Respondent published the form and information of the 2nd Respondent. Based on its analysis, the trial Court found that the suit filed before it was not outside the 14 days allowed by Section 285 (9) of the 1999 Constitution as amended.
The Court held thus:
“From the 9th of September, 2020 when disclosure was made in the affidavit in Exhibit Bayelsa Central 7 to the 16th of September, 2020 when this suit was filed is about 8 days. Also from the 13th of September, 2020 when the Form EC9 was received to the 16th of September, 2020 when this suit was filed is 4 days. It is therefore so certain that whether you take it backward or forward, this suit will still not be statute barred because it was filed within the 14 days period provided by Section 285(9) of the 1999 Constitution for actions of this nature. In the circumstance, this suit is not statute barred. The Notice of Preliminary Objection filed by the 1st Defendant lacks merit and same is hereby dismissed.”
See page 421 lines 1 to 12 of the records.
As submitted by the Appellant in his reply to the Preliminary Objection, the above portion of the decision of the trial Court was not appealed against. The Appellant only appealed against:
“Part of the judgment which resolved the issue of not proving the allegation of false declaration in Form EC9 against the Appellant.”
See page 439 of the records.
Since the Appellant did not challenge or appeal against the decision of the trial Court that the suit before it was not statute barred, neither did the 2nd Respondent cross-appeal against it, the effect in law is that the said decision subsists. See SKYE BANK & ANOR V. AKINPELU (2010) LPELR – 3073 (SC); Okuoja v. Ishola (1982) 7 S.C 314; (1987) 7 S.C. 147 (Reprint); Ejowhomu v. Chief Edok-Eter Mandilas Ltd. (1986) 90 S.C. 41 @ 47; Adejumo & 2 Ors. V. Ayantegbe (1989) 3 NWLR (Pt. 110) 417; Iseru v. Catholic Bishop of Warri Diocese (1997) 4 SCNJ; 102 @ 115; Dr. Alakija & 2 Ors. v. Alhaji Abdulai (1998) 6 NWLR (Pt. 552) 1 @ 24; Leventis Technical v. Petrojessica Enterprises Ltd (1999) 4 SCNJ 121 @ 127 (1999) 4 S.C. (Pt. 1) 66 and Dabo v. Alhaji Abdullahi(2005) 7 NWLR (Pt. 923) 181; (2005) 2 SCNJ 76 @ 95; (2005) 2 S.C. (Pt. 1) 75 @ 91.
In the absence of appeal or cross-appeal against that part of the trial Court’s decision, the said decision of the trial Court that the suit leading to this appeal was brought in compliance with Section 285 (9) of the 1999 Constitution as amended, and therefore not statute barred is binding on the 2nd Respondent who is deemed in law to have conceded to that part of the trial Court’s decision. See Ogunyade V. Oshunkeye (2007) ALL FWLR (389) 1175. I therefore hold that the 2nd Respondent having conceded to the decision of the trial Court that the suit leading to this appeal was filed within the time stipulated by Section 285 (9) of the 1999 Constitution as amended and as such not statute barred, cannot come under the guise of a challenge of jurisdiction to raise the same issue that the suit subject of this appeal is statute barred through this preliminary objection.
In any case, this Court considering the provisions of Section 31 (2) (3) (4) and (5) of the Electoral Act 2010 and Section 285 (9) of the Constitution, as to whether an Originating Process before a trial Court is statute barred, held that in “a pre-election matter”, strict adherence must be made to the provisions of Section 285 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (Fourth Alteration No. 21) Act 2017. Its provision is clear and straightforward and it states thus: “Notwithstanding anything to the contrary in this Constitution, every pre-election matter shall be filed not later than 14 days from the date of the occurrence of the event, decision or action complained of in the suit.”
See the decision of this Court Per Onyemenam, JCA in APPEAL NO. CA/PH/455/2020 BETWEEN OWOUPELE ENEORIEKUMOH V. INDEPENDENT NATIONAL ELECTORIAL COMMISSION & 2 ORS (Unreported). This Court went on to hold therein thus:
“In determining whether a suit is statute barred, one must pay serious attention to when the cause of action arose or accrued. The law is settled that a cause of action is constituted by the bundle or aggregate of facts which the law will recognize as giving a claimant a substantive right to make a claim against the remedy or relief being sought. In other words, the factual situation on which the claimant relied to support his claim must be recognized by law as giving rise to a substantive right capable of being claimed or enforced against the Defendant. This is to say, the factual situation must constitute the essential ingredients of an enforceable right. See BELLO V. AG OYO STATE (1986) 5 NWLR (PT 45) 828; AKILU V. FAWEHINMI (1989) 2 NWLR (PT 102) 122; OGBIMI V. OLOLO (1993) 7 NWLR (PT 304) 128; OBIKA V. OBIKA (2018) LPELR – 43965.
In determining when the cause of action of the Appellant arose, it is trite law that the trial Court was enjoined to look at the statement of claim or the factual situation on which the Appellant as plaintiff relied to support his claim. And in an action begun by Originating Summons such as this, the depositions in the affidavit in support of the application are evidence upon which the Court must decide the issue. Recourse could also be had to the counter affidavit. See YARE V. NATIONAL SALARIES AND WAGES COMMISSION (2006) 2 NWLR (PT. 965) 546; BALONWU V. OBI (2007) 5 NWLE (PT. 1028) 488; WALE V. APC (2020) 16 NWLR (PT. 1749) 86.”
It is settled law that until INEC publishes the list and particulars of candidates, members of the general public, like the Appellant herein, would not have a cause of action under Section 31 (5) of the Electoral Act (as amended). See ANYANWU V. OGUNEWE (2014) LPELR – 22184 (SC); MODIBBO V. USMAN & 2 ORS (2020) 3 NWLR (PT. 1712) 505; ABUBAKAR V. INEC (2020) 12 NWLR (PT. 1737) 163. It is only when the publication is made that the cause of action accrues or becomes ripe or mature.
In the suit leading to this appeal from the depositions in the affidavit filed in support of the Originating Summons as ably evaluated by the learned trial Judge, the Appellant did not make any deposition as to when the 4th Respondent published the particulars of the candidates particularly that of the 2nd Respondent. The learned trial Judge however found that it was not Exhibit Bayelsa Central 6 but Exhibit Bayelsa Central 7, which is the affidavit in support of the personal particulars of a candidate which the 2nd Respondent must complete under Section 31 (2) of the Electoral Act, 2010 as amended and which the 2nd Respondent’s party herein 1st Respondent, is under obligation to submit to the 4th Respondent under Section 31 (1) of the Electoral Act, 2010 as amended, that is the subject matter. He therefore held that:
“It was the filing of Exhibit Bayelsa Central 7 with the 1st Defendant and its onward transmission and submission to the 4th Defendant that prompted the claimant to file this suit contending that the 2nd Defendant was not qualified to contest the primary election of 3rd September, 2020 because at the time of the conduct of the election, he was and is still a serving public servant with the Nigerian Airforce. The disclosure which is a subject of challenge in this suit was made vide Exhibit Bayelsa Central 7 and not Exhibit Bayelsa Central 6, and therefore, the event occurred on the date when the said exhibit was received by the 4th Defendant for publication.”
Sequel to the above findings, the learned trial Judge held that the suit filed before it on 16th September, 2020 was not statute barred. In my view, the evaluation and findings of the trial Court on this issue is unassailable. Consequent upon the circumstances of the suit, I hold the findings of the learned trial Judge that the suit subject matter of this appeal is not statute barred correct in law. I uphold the said decision of the trial Court that Suit No: YHC/201/2020 is not statute barred and I therefore discountenance the Preliminary Objection of the 2nd Respondent as the same has no merit.
I shall now proceed to the main appeal.
SUBMISSIONS ON THE SOLE ISSUE
Whether the Honourable trial Court was right when it held that the Appellant had not discharged the burden of proving that the 2nd Respondent stated falsely in his Form EC9 that he was told he had been dismissed from the Nigeria Airforce when in fact, he was never dismissed but was a deserter.
The learned counsel for the Appellant submitted that the 2nd Respondent admitted that he was dismissed from the Nigeria Airforce by ticking the box provided in Form EC9 which was in conflict with the details he gave to the effect that he deserted from the Nigeria Airforce. He went on to submit on the effect of desertion from the Nigerian Airforce as against dismissal from service.
It was also contended by the Appellant that the position of the Armed Forces Act is that for a service man to be dismissed he must first be found guilty and convicted of an offence under the act, he relied on Section 118 and 119 of the Armed Forces Act. He argued that the 2nd Respondent did not give any evidence at the trial Court to show that he was convicted before his dismissal from the Nigeria Airforce, he therefore submitted that the 2nd Respondent gave a false information in his Form EC9 submitted to the 4th Respondent contrary to Section 31 (5), (6) of the Electoral Act 2010 (as amended).
The learned counsel referred the Court to paragraphs 11, 13 and 17 of the counter-affidavit of the Appellant and contended that there was contradiction on the date the 2nd Respondent said he was dismissed from service and that such mistake cannot be a typographical error as same occurred three times. He contended that the trial Court misdirected itself when it found that the 2nd Respondent never stated anywhere in Form EC9 that he deserted the Force. He relied on the decision of the Court in PDP V. LAWAL & ORS (2012) LPELR-7972 (CA). It was submitted that the Appellant did not need to further prove that the 2nd Respondent deserted the Armed Force, having demonstrated that the 2nd Respondent admitted in Form EC9 that he deserted and in urging the Court to hold so, the learned counsel relied on the decision of the Courts in ATANDA V. ILIASU (2012) LPELR-19662 (SC); ONOBA V. ABUJA BUILDING PRODUCTS LTD & ORS (2014) LPELR-22704 (CA).
On the standard of proof, the learned counsel contended that the case before the Court is civil in nature and as such, the standard of proof to be applied in civil suit is balance of probability and preponderance of evidence. He relied on Section 134 of the Evidence Act 2011 and the case of EZEMBA V. IBENEME & ANOR (2004) LPELR-1205 (SC). It was submitted that even in a criminal matter where the standard of proof is beyond reasonable doubt, the position of the law on admitted facts still remains that such facts need no further proof. The learned counsel relied on the case of RABE V. FRN (2018) LPELR-46338 (SC).
The learned counsel urged the Court to allow the appeal and set aside the judgment of the Bayelsa State High Court.
Mr. Kelvin E. Ejelonu, learned Counsel for the 2nd Respondent in reply to the Appellant’s arguments, submitted that the burden of proof rests on the Appellant and that the Appellant failed to discharge the same. He referred to the cases of MODIBBO V. USMAN (2020) 3 NWLR (pt. 1712) 470; CHAIRMAN ECONOMIC AND FINANCIAL CRIME COMMISSION & ANOR V. LITTLE CHILD & ANOR (2015) LPELR-25199 (CA) 30-31, E-A; GENERAL AVIATION SERVICE LTD V. THAHAL (2004) 4 SCM 52; UNION BANK OF NIGERIA PLC V. ASTRA BUILDINGS (WA) LTD (2010) 2-3 SC (pt. 1) page 60.
The learned counsel also relied on Section 131 (1) of the Evidence Act 2011 and the cases of ONOVO V. MBA (2015) ALL FWLR pt. 765 pg. 298 @ 314, C-D; BORISHADE V. N. B. N LTD (2007) NWLR pt. 1015 pg. 217 @255, D-E, 256, D-F; BULLET INT’L LTD & ANOR V. OLANIYI & ANOR (2017) LPELR 42475 (SC); DUMEZ NIG LTD V. NWAKAOBA (2008) 18 NWLR (PT. 1119) 361 @ 374, A-E.
He contended that where declaratory reliefs are sought in a matter, the burden of proof is on the Plaintiff to succeed on the strength of his case alone. He cited the cases of AJI V. C. B. D. A (2015) ALL FWLR pt. 784 pg. 148 @ 165, C; IGBOJIONU & ORS V. UKO & 7 ORS (2018) LPELR-45875 (CA); YUSUF V. AKANDE (2011) LPELR-5114 CA; ODUNZE V. NWOSU (2007) 13 NWLR (pt. 1050) 1; BUSARI & ANOR V. ADEPOJU & ORS (2015) LPELR-41704 (CA); AGI V. PDP (2017) 17 NWLR pt. 1595 pg.386 @ 469 E-G.
Mr. Ejelonu of counsel relied on the decision of the Supreme Court in AGI V PDP (SUPRA) on the issue of falsification of a document and submitted that any qualification or disqualification factor has to be as provided by the Constitution of the Federal Republic of Nigeria 1999 (as amended). He relied on Section 66 (1) of the Constitution of the Federal Republic of Nigeria (supra). It was also his submission that there is nothing in the above Section that states that, a person that is said to have been dismissed from the Nigeria Air Force and alleged to have given false information is disqualified from contesting for a senatorial seat.
The learned counsel contended that the 2nd Respondent in his further and better affidavit stated that he was dismissed from the Nigeria Air Force in 2003 and that it was the 1st Respondent that wrote to the Nigeria Airforce for the employment status of the 2nd Respondent and that the Appellant failed to give contrary evidence and same is deemed admitted by the Appellant. The learned counsel cited the case of C. B. N V. EDET (2015) FWLR pt. 768 pg. 879 @ 897, B-C.
Mr. Ejelonu in urging the Court to resolve the sole issue in favour of the 2nd Respondent contended that this appeal qualifies as academic and speculative action and liable to be struck out.
Mr. Damabide, the learned counsel for the 3rd Respondent submitted that, relying on the result tendered by the 1st Respondent and the record of appeal, it was the 3rd Respondent who came second in the 1st Respondents primary election.
In arguing that it is the 1st Respondent that has the exclusive powers to conduct primary election, the learned counsel relied on the decision of the Court in ADEGUYI V. APC & ORS (SUPRA) @ pages 7 Ratio 3 and submitted that the result published by the 1st Respondent remains valid and was not effectively disproved in view of the copies tendered by the 1st Respondent. The learned counsel urged the Court to hold as null and void the judgment of the trial Court.
The Appellant by way of reply to the issues raised by the 2nd Respondent in the 2nd Respondent’s brief of argument contended that, the submission of the 2nd Respondent that the appeal is now academic and is of no purpose is misconceived and urged the Court to so hold.
The learned counsel contended that the election petition Tribunal has been set up and there are petitions against the election into the Bayelsa Central Senatorial District and that where same succeeds, there will be another election where the issue of the candidate of the 1st Respondent will become alive. He submitted that the appeal is not academic and urged the Court to allow the appeal.
RESOLUTION OF THE SOLE ISSUE
The issue for resolution stems on the first relief of the Appellant at the trial Court, which is:
“A Declaration of this Honourable Court, that the 2nd Defendant having admitted that he has deserted from the Nigerian Airforce, he was not qualified to participate in the primaries of the 1st Defendant conducted on 3rd September, 2020.”
The 2nd Respondent filled an INEC Form EC9 and the information given therein was on oath as can be found at pages 109 to 117 of the records. In the 2nd Respondent’s Form EC9 at paragraph D (ii), the Section provided for “Work Experience” where he was expected to state whether he had ever been dismissed from public service of the Federation, State or Local Government, he ticked the box stating “Yes”. Following the ticking of “Yes”, the 2nd Respondent was required to give brief details of his dismissal for which he stated thus:
“I was in the Airforce and informed my superior officer of my health situation and travelled for medical treatment and was later informed that I deserted.”
This is the basis of this issue for determination that the 2nd Respondent gave false information in his form. Looking at pages 111 and 223 of the records carefully, it is clear that the 2nd Respondent’s response to a question on the form on whether he had been dismissed was in the affirmative, that YES he had been dismissed before and he went on to give brief details on the basis of his dismissal as has been stated above. The Appellant therein sought for a declaratory relief that the 2nd Respondent gave false information.
The Appellant took time in his brief to interpret the response of the 2nd Respondent in paragraph D (ii) of his Form EC9. He went to town to expound Section 60 of the Armed Forces Act. In all these, the Appellant failed to attempt whatsoever to bring his own evidence in attempt to disprove the content of paragraph D (ii) of the 2nd Respondent’s Form EC9. All through the Appellant’s Originating Summons which sought for declaratory reliefs, the Appellant did not give evidence to counter the fact that the Appellant was dismissed or that he was informed after he went for his medicals upon notifying his superior that he deserted. Neither did he place before the trial Court tangible or credible evidence to prove that the 2nd Respondent gave false information in paragraph D (ii) of his Form EC9. Rather the Appellant’s case and argument clustered on the fact that the 2nd Respondent failed to prove that he was dismissed on a certain date by producing his letter of dismissal. The Appellant submitted that there was nothing before the trial Court to evidence that the 2nd Respondent was dismissed from public service. He firmed his case that, for the fact that the 2nd Respondent admitted in his Form EC9 personally filled and signed by him that he was informed that he deserted, the Appellant had discharged the burden of proving that the 2nd Respondent was not qualified to be nominated in the party primaries.
An admission is an act of acceptance or concession to a factual situation. The Apex Court inAlhassan & Anor V. Ishaku (2016) LPELR-40083(SC) 20, E-F, Per Rhodes- Vivour, J.S.C. succinctly stated that:
“Sections 20 and 21 of the Evidence Act provides for admission.
Admissions in pleadings are a waiver of all controversy on the fact the pleader admits.“
Based on provisions of the law stated above, the Appellant maintains his ground that for the fact that the 2nd Respondent admitted in his Form EC9, that he was informed that he deserted, means that he admitted that he deserted and the Appellant did not need to further prove that he deserted and accordingly, the 2nd Respondent was not qualified to be nominated in the party primaries. Following this Appellant’s stance, he faulted as perverse the holding of the trial Court at page 24 of the judgment seen at page 428 of the records, wherein the learned trial Judge held thus:
“The burden of proof in the circumstance is on the claimant to show that the 2nd Defendant actually deserted the Nigerian Airforce and was never dismissed and therefore still in employment as a public servant.”
As set as the law on admission is, there is however an exception to the law that facts admitted need no further prove. Where the Plaintiff/Claimant/Petitioner seeks declaratory reliefs, the position of the law differs in the circumstance. The law is settled that declaratory reliefs cannot succeed even on an admission by the opposing side. The reason is that a declaratory action is discretionary in nature. It seeks an equitable relief in which the Plaintiff prays the Court, in the exercise of its discretionary jurisdiction, to promote or declare an existing state of affairs in law in his favour, as may be discernible from the averments in the statement of claim or pleadings from the claimant. Squarely, the onus of proof in a declaratory action lies on a Petitioner/Claimant/Plaintiff. He must succeed on the strength of his own case and not on the weakness of the defence, not even on admission of the defence, except where the case for the defence supports the Respondents case. See Akande V. Adisa (2012) LPELR-7807(SC) 38-39; AG Cross-River V. AG Federation (2012) LPELR-9335(SC) 48; Buhari V. Obasanjo (2003) 17 NWLR (Pt. 850) 587; & CPC V. INEC (2011) 8 NWLR (Pt. 1279) 493. Also in the case of Omisore V. Aregbesola (2015) LPELR-102-103, per Fabiyi, J.S.C. held as follows:
“I should note it briefly that the Appellants sought declaratory reliefs before the Tribunal. They had the burden of proof to establish such declaratory reliefs to the satisfaction of the Court or Tribunal as herein. Such declaratory reliefs are not granted even on admission by the Defendant where a claimant, as herein, fails to establish his entitlements to the declaration by his own evidence. See Dumez Nig. Ltd V. Nwakhoba (2008) 18 NWLR (Pt. 119) 361, 373; Ucha V. Elechi (2012) MRSJ Vol. 179, 104; (2012) 4 SCM 28; (2012) 12 NWLR (Pt. 1317) 230. See also INEC V. ADELEKE & ORS (2019) LPELR – 47454.”
The Appellant’s relief subject of this issue is declaratory in nature. Therefore, the Appellant herein as claimant at the trial Court must prove his case not minding any admissions or default of the Respondents and the 2nd Respondent in particular. See OKORONKWO V. OKORONKWO (2010) LPELR 9357 (SC). The Appellant in this appeal who sought declaratory reliefs at the trial Court must succeed only on the strength of his case and not on the admission or the weakness of the case of the 2nd Respondent. See Aji V. C.B.D.A (2015) ALL FWLR (PT. 784). For what I have said above, granted that the 2nd Respondent made any admission in his defence, which I have not said he did, his said admission cannot shift the burden of proof from the Appellant since in an action for declaratory reliefs the Plaintiff succeeds or fails consequent upon his material evidence placed before the Court. I do not therefore agree with the Appellant that the learned trial Judge erred in law when he held that despite the alleged admission of the 2nd Respondent, the burden of proof that the 2nd Respondent was not dismissed but deserted from the Nigerian Airforce remained on the Appellant which burden I agree with the learned trial Judge the Appellant failed to discharge. It does appear to me that the Appellant was not mindful of the fact that he sought for declaratory reliefs at the trial Court and the burden of prove the law in such circumstance places on him. Little wonder the Appellant rather than prove his claim to be entitled to his declaratory reliefs was busy all the way shifting the burden of proof to the 2nd Respondent.
All I said above notwithstanding, a careful consideration of paragraph D (ii) of the 2nd Respondent’s Form under view does not translate to admission by the 2nd Respondent that he deserted from the Nigerian Airforce. I therefore uphold the finding of the learned trial Judge at page 26 of the judgment found at page 430 of the records that the 2nd Respondent never admitted that he deserted from the Nigerian Airforce as he unequivocally stated that he was dismissed from the Airforce in his Form EC9; as against the position of the Appellant to the contrary. I accordingly resolve the sole issue against the Appellant.
In all, I do not find merit in this appeal. Appeal is dismissed. I uphold the decision of the High Court of Bayelsa State in Suit No: YHC/201/2020; delivered by T.Y. Abasi, J., on 2nd December, 2020.
I make no order as to costs.
CROSS-APPEAL OF THE 3RD RESPONDENT
The cross-appeal is against the decision of the High Court of Bayelsa State contained in the judgment of 2nd December, 2020 delivered by T. Y. Abasi, J.
Dissatisfied with the decision and declaration of the trial Court that it was the Appellant/Respondent as against the Cross-Appellant/3rd Respondent that scored second highest majority votes cast at the 1st Respondent/Respondent’s primary election held on 3rd September, 2020 for Bayelsa Central Senatorial bye-election, brought this cross-appeal which was filed on 4th January, 2021.
The summarized facts of this matter as captured by the Cross-Appellant is that, upon completion of its primaries for the election of its candidate for the Senatorial bye-election for the Bayelsa Central Senatorial District in Bayelsa State, and as evidenced by the results produced by the 1st Respondent, the 3rd Respondent/Cross-Appellant came second and was so pronounced. Not pleased with the alleged pronouncement, the Appellant instituted an action at the High Court of the Federal Capital Territory, Abuja by an Originating Summons, seeking reliefs to the effect that: while the 2nd Respondent who came 1st in the primaries is not competent to be nominated as the candidate of the 1st Respondent for the Senatorial bye-election for the Bayelsa Central Senatorial District of Bayelsa State, the Cross-Respondent/Appellant, as against the Cross-Appellant/3rd Respondent, came second in the said primary election of the 1st Respondent and should thus be declared its candidate in view of the incompetence of the nomination of the 1st Respondent.
The High Court of the Federal Capital Territory, Abuja ordered the transfer of the matter to the High Court of Bayelsa State which T. Y. Abasi, J., heard and determined.
It is the case of the Cross-Appellant/3rd Respondent that at the High Court of Bayelsa State, no hearing notice was served on him except for the services of the Originating Processes on him before the matter was heard and determined against him. It was further the case of the Cross-Appellant/3rd Respondent that despite the results produced by the 1st Respondent who conducted the said primary election, the learned trial Judge held that as against the Cross-Appellant/3rd Respondent, it was the Cross-Respondent/Appellant who came second in the primaries.
The cross-appeal was heard alongside the main appeal on 27th January, 2021. Before Mr. Damabide, the learned counsel for the cross-appellant argued the appeal, Mr. Fatogun, learned Counsel for the Cross-Respondent/Appellant referred to Notice of Preliminary Objection at page 3 of the Cross-Respondent’s brief filed 8th January, 2021. He adopted and relied on the argument in urging the Court to dismiss the cross-appeal.
Mr. Ejelonu, we did not file any process on the cross-appeal.
Mr. Damabide for the Cross-Appellant/3rd Respondent in reply to the Preliminary Objection raised by the Cross-Respondent/Appellant filed a reply brief on 20th January, 2021. He adopted and relied on the same in urging the Court to dismiss the Preliminary Objection.
Thereafter and for the main cross-appeal, Mr. Damabide referred to and adopted Cross-Appellant’s brief filed on 4th January, 2021 and reply brief filed 20th January, 2021. He relied on arguments at pages 3-5 at paragraphs 4.10-4.11 and page 2 of the referred brief and reply brief respectively, in urging the Court to allow the cross-appeal.
Mr. Fatogun for the Cross-Respondent adopted and relied on the brief he filed on 8th January, 2021 particularly at pages 5-11 of the brief in urging the Court to dismiss the cross-appeal.
SUBMISSIONS ON THE PRELIMINARY OBJECTION IN THE CROSS-APPEAL
Arguing the Preliminary Objection, Mr. Fatogun, the learned counsel for the Cross-Respondent/Appellant submitted that a cross-appeal is an appeal on its own which does not depend on the main appeal. He cited the case of OLOWU V. ABOLORE (1993) 5 NWLR (PT. 293) 255-384; (1993) 6 SNJ 1. He submitted that the cross-appeal was filed contrary to the provisions of Section 285 (11) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) and that having been filed outside 14 days of the decision of the trial Court, the cross-appeal is caught up by effluxion of time and have robbed this Court of the jurisdiction to hear the same.
The learned counsel also submitted that a ground of appeal must flow from the judgment of the trial Court. He argued that the issue of service of hearing notice was not raised and determined by the trial Court. The learned counsel cited the case of C. C. B PLC V. EKPERI (2007) WRN (VOL. 12) 1 at 19 Lines 35-45 (SC) OR (2007) 1 SC (pt. ii) 130.
The learned counsel urged the Court to strike out the Cross Appeal.
In the Cross-Appellant/3rd Respondent’s reply to the Cross-Respondent/Appellant’s Preliminary Objection, Mr. Damabide submitted that a cross-appeal is premised on the filling of an appeal. He argued that a cross-appeal is in the nature of a counter-claim and so dependent on the existence of an appeal.
He relied on S.B.N LTD V. M.P.I.E LTD (2004) 6 NWLR (Pt. 868) 146; ALMANAC OF CONTEMPORARY JUDICIAL RESTATEMENT BY LAI OSHITOKUNBO OSHISHAYA. SPECTRUM BOKS, IBADAN (2008) PAGE 863.
The learned counsel submitted further that in the event that no notice of appeal was served on the Cross-Appellant/3rd Respondent who only became aware of the existence of the appeal through informal sources and consequently cross-appealed, time cannot begin to run against the Cross-Appellant. He argued that time does not run against a nullity citing ADAMA V. ANAJA & ANOR (2004) FWLR 17 193 @ 268.
Mr. Damabide submitted that service of hearing notice is fundamental and a failure to serve same foists a state of nullity on the proceedings and judgment reached. He urged the Court to hold that time would not run in such circumstances.
RESOLUTION OF CROSS-RESPONDENT’S PRELIMINARY OBJECTION
Section 285(11) of the Constitution of the Federal Republic of Nigeria as amended provides:
“An appeal from a decision in a pre-election matter shall be filed within 14 days from the date of delivery of the judgment appealed against.”
According to the Supreme Court, the purport of a limitation law is that where a statute of limitation prescribes a period within which an action should be brought, legal proceedings cannot be properly or validly instituted after the expiration of the prescribed period. An action instituted after the expiration of the prescribed period is said to be statute barred. The rationale is that a legal right to enforce an action is not a perpetual right, but a right generally limited by statute. Therefore, a cause of action is statute-barred if legal proceedings cannot be commenced in respect of same because the period laid down by the limitation law had elapsed. The striking effect of a limitation law is that legal proceedings cannot be validly instituted after the cessation of the prescribed period.
The Cross-Respondent/Appellant’s contention is that by the mandatory provision of Section 285 (11) of the Constitution of the Federal Republic of Nigeria, the Cross-Appellant/3rd Respondent’s cross-appeal filed more than 14 days after the date the judgment cross-appealed was delivered is statute barred. Section 285 (11) of the Constitution (supra) reproduced above, specifically provides for the filing of an appeal against a pre-election matter decision. It did not make mention of cross-appeal which is a means that a Respondent has to claim relief from the order or judgment appealed by an Appellant. A cross-appeal being a request filed by a Respondent requesting that a higher Court review the decision made by a lower Court, can only be filed where there is an appeal. In other words, there can be no cross-appeal without an appeal as a cross-appeal is an appeal filed by the Respondent where the Respondent wants to appeal something from the judgment of the lower Court and the Appellant had already appealed. Notwithstanding the fact that a cross-appeal is an independent action, a cross-appeal stems on an appeal. Primarily, the first party to file a request against the judgment of a lower Court in an Appellate Court is called the Appellant, and his request for review is an appeal. Where the Respondent (an opposing party) also wishes to request review of the lower Court’s decision, that request is called cross-appeal. Therefore where Section 285 (11) of the Constitution (supra) provides that an appeal must be filed not later than 14 days after the judgment in pre-election matter, the same cannot apply to a cross-appeal which cannot be filed until an appeal had been filed. Not only that, the appeal filed must be brought to the knowledge of the Respondent by way of service of the notice of appeal on the Respondent before he can file a cross-appeal.
From what I have said about cross-appeal, I view that where Section 285 (11) of the Constitution (supra) is held to apply to cross-appeal to ensure specified time for the filing of the same, the time cannot rightly begin to run from the date of judgment of the lower Court but from the date the notice of appeal upon which the cross-appeal was filed was served on the Cross-Appellant/Respondent. So in the instant cross-appeal, to determine whether, the Cross-Appellant/3rd Respondent filed his cross-appeal within 14 days, the date to be reckoned with will be the date the Cross-Respondent/Appellant’s notice of appeal was served on him.
On the date of service of the Cross-Respondent/Appellant’s notice of appeal on the Cross-Appellant/3rd Respondent, the Cross-Appellant/3rd Respondent submitted that there was no service of notice of appeal on him as he became aware of the appeal through another means other than service of the notice of appeal on him as required by the rules. The Cross-Appellant’s counsel noted this issue of non-service of the notice of appeal on the Cross-Appellant in Court on 7th of January, 2021, he has also raised the issue in the Cross-Appellant’s reply to the Cross-Respondent/Appellant’s preliminary objection where he said:
“In the instant case, no notice of appeal was served on the 3rd Respondent who only became aware of the existence of this suit through informal sources and subsequently cross-appealed after he became aware of an appeal.”
The Cross-Respondent/Appellant all through his processes kept mute on the issue of non-service of his notice of appeal on the Cross-Appellant/Respondent. This means admission of the fact that his notice of appeal was not served on the Cross Appellant. There is also no record in the Court’s file to evidence the fact that the Cross-Respondent/Appellant’s notice of appeal was served on the Cross-Appellant/Respondent. Therefore there is no legal date fixed as the date the 14 days will begin to run in other to ascertain whether the Cross-Appellant was out of time in filing his cross-appeal. In the said circumstance, I do not agree with the learned counsel for the Cross-Respondent/Appellant that the cross-appeal filed by the 3rd Respondent is statute barred. I will stop here and not go further on the question of non-service of the notice of appeal on the Cross-Appellant since that is where the Cross-Appellant’s counsel ended his argument.
In all, I hold that the cross-appeal filed by the Cross-Appellant/3rd Respondent is not statute barred. The Preliminary Objection is therefore discountenanced. I shall determine the cross-appeal on its merits.
MAIN CROSS-APPEAL
By the Cross-Appellant/3rd Respondent’s brief of argument settled by Mr. Ikechukwu Stanley Damabide, the Cross-Appellant/3rd Respondent raised a sole issue for determination in his cross-appeal thus:
Whether the judgment given against the 3rd Respondent by the trial Court is null and void, in view of the Court’s failure to ensure the service of a hearing notice on the 3rd Respondent before proceeding to hearing and determining the matter against him?
The Cross-Respondent/Appellant who was the sole Respondent that opposed the cross-appeal adopted the single issue raised by the Cross-Appellant/3rd Respondent. This cross-appeal shall therefore be determined on the singular issue raised by the Cross-Appellant.
SUBMISSION ON THE SOLE ISSUE OF THE CROSS-APPEAL
Whether the judgment given against the 3rd Respondent by the trial Court is null and void, in view of the Court’s failure to ensure the service of a hearing notice on the 3rd Respondent before proceeding to hearing and determining the matter against him?
The learned counsel for the 3rd Respondent/Cross-Appellant noted that, it is not in dispute that the 3rd Respondent was served with the Originating Processes at the trial Court, he however contended that the records of the Court confirms that hearing notice was not served on the 3rd Respondent before the Court made pronouncement against him.
It was submitted that, service of hearing notice on a party in a case is indispensable. The learned counsel cited the cases of DARMA V. ECO BANK NIG. LTD (2017) 265 LRCN 34 @ 42 Ration 7; NUT. TARABA STATE V. HABU & ORS (2018) 279 LRCN 152 @ 159 Ratio 5.
The learned counsel for the 3rd Respondent/Cross-Appellant contended that, the trial Court failed to order for a hearing notice to be issued on the 3rd Respondent considering the fact that the matter was transferred from the High Court of the Federal Capital Territory to the High Court of Bayelsa State to be heard and determined. He cited the case of AKPAMGBO OKADIGBO & ORS V. CHIDI & ORS (NO. 1) (2018) 247 LRCN, 45 @ 64 Ratio 16.
It is the learned counsel’s argument that failure to observe the principle of fair hearing in a proceeding renders such proceeding null and void he cited the case of Z. P IND. LTD V. SAMOTECH LTD (2018) 278 LRCN, 41 @ 44-45 Ratios 1 and 2. It was further argued that the issue of fair hearing is constitutional, just like the issue of jurisdiction and can be raised without leave and on appeal, the learned counsel urged the Court to so hold.
The Cross-Respondent/Appellant who adopted the sole issue raised by the Cross-Appellant/3rd Respondent in arguing the same contended that the Originating Processes and hearing notice for earlier sitting at Abuja were served on the Cross-Appellant. He submitted that, it is not in all cases where a party is absent in Court that the Court will be required to order a hearing notice to be issued on the party. The learned counsel referred the Court to the decisions of the Court in NEWS WATCH COMMUNICATIONS LTDV. ATTA (2006) NWLR (pt. 993) 144 at 171; SIMON EZECHUKWU & ANOR V. I. O. C ONWUKA; AHMAD V. SAHAB ENTERPRISE (NIG) LTD & ORS (2016) LPELR-41313 (CA); ASHAGBA & ORS V. MONN & ANOR (2011) LPELR-9122 (CA).
Mr. Fatogun, the learned Counsel for the Cross-Respondent contended that assuming without conceding the Cross-Appellant was further served, he still would not have filed any process at the trial Court. He therefore urged the Court to dismiss the cross-appeal and affirm the judgment of the trial Court.
RESOLUTION OF CROSS-APPEAL SOLE ISSUE
The attitude of the Courts to service of Court’s processes, service of hearing notice in particular and the consequence for non-service of said Court’s processes were aptly stated thus by the Apex Court in SKENCONSULT V. UKEY (1981) LPELR-3072 (SC); (2001) 49 WRN 63.
“The service of process on the defence (or the adversary) so as to enable him appear to defend (or advance) the relief sought against him (or by him) and due appearance by the party or any counsel (retained by him) must be those fundamental conditions precedent before the Court can have competence and jurisdiction. This position of the Apex Court very well accords with the principles of natural justice.”
Where a person’s legal rights or obligations are under attack, he must be given adequate opportunity of being heard before any adverse decision is taken against him with regard to such rights or obligations.
“Audi alteram partem” principle as guaranteed under Section 36 (1) of the 1999 Constitution as amended remains a binding and indispensable requirement of justice applicable to and enforceable by all Courts of law. The principle affords both sides to a dispute equal opportunity of presenting their case to enable the enthronement of justice and fairness.
In the application of the principle, a hearing is said to be fair and in compliance with the dictates of the Constitution when, inter-alia, all the parties to the dispute are given a hearing or an opportunity of a hearing. If one of the parties is refused or denied a hearing or the opportunity of being heard, the Court’s proceedings being perverse will be set aside on appeal. See AKPAMGBO-OKADIGBO & ORS V. CHIDI & ORS (2015) LPELR – 24564(SC); Otapo V. Sunmonu (1987) 2 NWLR (pt. 58) 587; Aladeloyinbo V. Adewumi (1990) 6 NWLR (pt. 154) 98; Mohammed & Anor V. Olawunmi (1990) 2 NWLR (Pt. 133) 485; Olumesan v. Ogundepo (1996) 2 NWLR (pt. 433) 628.
The contention of the Cross-Appellant is that he was not given opportunity to be heard at the trial Court in that no hearing notice was served on him to appear and or be represented in Court before an adverse decision was handed down on him. From the records, the suit subject matter of this appeal was commenced at the High Court of the Federal Capital Territory, Abuja but later transferred to High Court of Bayelsa State. From the proceedings of the High Court of Bayelsa State, the matter resumed on 1st December, 2020 and judgment delivered on 2nd December, 2020. The Cross-Appellant/3rd Respondent never appeared nor was he ever represented in Court on those days. There is no evidence on the face of the records that the learned trial Judge of the High Court of Bayelsa State at any time during the proceedings ordered that hearing notice be issued and served on the Cross-Appellant/3rd Respondent who from when the suit was transferred to the High Court of Bayelsa State neither appeared nor was represented in Court. The Cross-Respondent/Appellant’s argument is that the Cross-Appellant was served with the Originating processes and hearing notice at the High Court of the Federal Capital Territory, Abuja before the transfer of the suit to the High Court of Bayelsa State and therefore the Cross-Appellant was aware of the existence of the suit and as such should have followed the same up. He relied on the Apex Court and this Court’s decisions in his argument. Also Mr. Fatogun, the learned counsel for the Cross-Respondent/Appellant argued that even if the Cross Appellant was further served with hearing notice, he would have had nothing to urge on the Court.
I have read the decision of His Lordship Peter-Odili in SIMON EZECHUKWU & ANOR V. I.O.C. ONWUKA (SUPRA); also the Apex Court’s decision in NEWSWATCH COMMUNICATIONS LTD. V. ATTA (SUPRA); and these Court’s decisions cited by Mr. Fatogun and I say that those cases are authorities on the facts and circumstances of the cases they decided. The more recent decision of the Apex Court in NUT, TARABA STATE V. HABU & ORS (2018) 279 LRCN 152 is apt in deciding this appeal. In the referred appeal, this Court was misled by the clerk that hearing notice was served on the absent 1st to 6th Appellants when indeed there was a mix up as the registry of this Court erroneously served the hearing notice on a wrong Counsel. This Court in the referred appeal based on the wrong information deemed the 1st to 6th Appellants’ appeal as argued.
The Apex Court on appeal held that:
“The salient and material facts now admitted, the question begging for answer is: what then is the legal consequence of not serving 1st and 6th Appellants.
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Relying on ODUTOLA V. KAYODE (1994) 2 NWLR (Pt. 324) 1 at 22B-C; SOCIETE GENERAL LTD V. JOHN ADEBAYO ADEWUNMI (2003) 29 WRN 37 at 47; A.G RIVERS STATE V. GREGORY OBI UDE (2007) ALL FWLR (Pt.347) 598 at 614; it is submitted correctly for the Appellants that, service of hearing notice is a condition precedent for the invocation of Order 6 Rule 9(5) of the Court of Appeal Rules, 2002. It touches the heart of fair hearing guaranteed under Section 36(1) of the 1999 Constitution; particularly the principle of audi alteram partem. The defect is fatal, for the proceedings are a nullity however well conducted and decided. The defect is extrinsic to the adjudication, as it torches on the competence of the adjudicating body to exercise its jurisdiction in the mater: MADUKOLU V NKEMDILIM (1962) 1 ALL NLR (Pt. 4) 587 at 594; SKENCONSULT V UKEY (1981) 49 WRN 63 at 86.”
Important to note in the above referred decision of the Apex Court is that the 1st – 6th Appellants were well aware of the pendency of the appeal and had even filed their brief which the Court relying on the rules of this Court deemed argued, yet, the Supreme Court held that failure to serve them with hearing notice for that date was fatal and rendered the decision of the Court a nullity. From the decision of the Apex Court in NUT, TARABA STATE V. HABU & ORS (2018) 279 LRCN 152, the fact that the Cross-Appellant was served with the Originating Processes and hearing notice at the High Court of the Federal Capital Territory, Abuja before the transfer of the suit to the High Court of Bayelsa State and so aware of the pendency of the suit subject of this appeal, is of no moment since the learned trial Judge of the High Court of Bayelsa State did not at any time serve the Cross-Appellant hearing notice for the proceedings he undertook until he delivered judgment adverse to him. The decision of the High Court of Bayelsa State delivered without issuing and serving hearing notice on the Cross-Appellant amounts to a denial of his right to fair hearing and the same is fatal to the judgment. It renders the proceedings null and void. See AKINFE V. THE STATE (1998) 3 NWLR (Pt. 85) 729 at 753; ADIGUN V. ATTORNEY GENERAL, OYO STATE (1987) 1 NWLR (Pt.53) 678; SALU V. EGEIBON (1994) 6 NWLR (Pt 348) 23 at 44; BAMGBOYE V. UNIVERSITY OF ILORIN (1999) 10 NWLR (Pt. 622) 290 at 333. I hold that when there had been a denial of fair hearing, miscarriage of justice is presumed to have been occasioned to the party denied fair hearing and in this case the Cross-Appellant.
The argument of the Cross-Respondent/Appellant that the Cross-Appellant/3rd Respondent from the circumstances of the case had nothing to urge on the Court cannot remedy the presumed miscarriage of justice which I have held was occasioned on the Cross-Appellant by the failure of the trial Court not even for once to issue hearing notice and serve the same on the Cross-Appellant. The law is, even where a party’s case appears very weak or unenforceable in relation to an adverse party’s case, the party must be accorded opportunity to be heard even in the face of his seeming unmeritorious case. See Adigun V. Attorney General Oyo State & Ors (1987) 1 NWLR (Pt. 678) at 707; Garba V. University of Maiduguri (1986) 1 NSCC 255. See also AKPAMGBO-OKADIGBO & ORS V. CHIDE & ORS (supra).
There is nothing more to say with the glaring position of the law that has been stated above than to resolve the sole issue in the Cross-Appeal in favour of the Cross-Appellant. Since the trial Court denied the Cross-Appellant fair hearing, I hold that the Cross-Appellant suffered miscarriage of justice.
This cross-appeal therefore succeeds, and the cross-appeal is allowed. The judgment of the trial Court cross-appealed is null and void. The decision and orders of the High Court of Bayelsa State delivered on December, 2020 in Suit No: YHC/201/2020 are hereby set aside.
Parties shall bear their respective costs.
JAMILU YAMMAMA TUKUR, J.C.A.: I agree.
MOHAMMED BABA IDRIS, J.C.A.: I agree.
Appearances:
Eyitayo Fatogun for the Appellant/Cross Respondent. For Appellant(s)
K. E. Ejelonu – for 2nd Respondent.
I. S. Damabide – for 3rd Respondent/Cross Appellant.
No Representation – for 1st and 4th Respondents. For Respondent(s)
