State Independent Electoral Commission, Ekiti State V. National Conscience Party (2008)
LawGlobal-Hub Lead Judgment Report
SANKEY, J.C.A.
This is an appeal from the decision of the High Court of Ekiti State at Ado-Ekiti presided over by Babalola, 1., delivered on 25th March, 2004, wherein judgment was given in favour of the respondent.
The brief facts of the case are as follows: the appellant is the body saddled with the responsibility of conducting Local Government elections in Ekiti State. Therefore, in the exercise of its powers under the Ekiti State Local Government Law, 2001, it stated the 27th March, 2004 for the holding of Local Government elections throughout the State. The respondent is one of the registered political parties in Nigeria. In pursuance of this objective, the appellant released guidelines for the conduct of the said elections, some of which pertained to the eligibility of candidates contesting the said election. Arising from its dissatisfaction with some of these guidelines, the respondent took out an originating summons on the 10th February, 2004, praying the lower court to set aside the contested guidelines on the ground that they were unconstitutional.
Upon being served the originating summons on the 20th February. 2004, the appellant filed a conditional memorandum of appearance on the 26th February, 2004 and followed it up with a notice of preliminary objection on the 5th March, 2004 challenging the competence of the suit and the jurisdiction of the court to entertain same. The notice of preliminary objection was heard and dismissed by the court on 15th March, 2004. Dissatisfied with the ruling, the appellant appealed against the decision, and also filed a motion to stay further proceedings in the suit. This motion for stay was argued and same was again dismissed by the lower court on the 22nd March, 2004. On the same day, the respondent filed a motion to amend the originating summons. Being unopposed, it was heard and granted on the 23rd March, 2004. Just as the matter was to proceed to hearing on the same day, learned counsel for the appellant in court sought an adjournent to enable his principal, the learned Attorney General, to argue the matter personally. The learned trial judge refused the application for an adjournment. He proceeded to hear arguments on the originating summons and adjourned to 25th March, 2004, for judgment.
The next day, 24th March, 2004, the appellant filed a motion seeking to attest the judgment of the court as well as a counter-affidavit to the originating summons. On 25th March, 2004, the motion to arrest the court’s judgment was taken and dismissed, while the lower Court proceeded to deliver its judgment on the same day. It granted the reliefs sought and set aside the contested guidelines declaring them unconstitutional. Aggrieved by the decision of the court, the appellant filed a notice of appeal challenging the decision on four grounds. The grounds without their particulars are as follows:
“Ground 1
Lack of jurisdiction by the court,the trial court lacks the competence and jurisdiction to entertain the suit when the amended originating summons was defective and Ilorin conformity with the mandatory provisions of Order 26 rules 4, 5 and 6 of the Ondo State Rules of the High Court, 1987 as applicable to Ekiti State.
Ground 2
Error in law. The learned trial judge erred in law in breaching the fundamental right of appellant to fair hearing entrenched in section 36 of the Constitution of Nigeria, 1999, when he refused to let in the defence of the defendant to the amended originating summons heard on 23rd March, 2004.
Ground 3
Lack of jurisdiction – The learned trial judge lacks competence and jurisdiction to hear and determine the amended originating summons when the condition precedent was not fulfilled in that the said document which requires the signature of the registrar or other officer of the High Court duly authorised to sign summons was not contained.
Ground 4
Error in law – The trial court erred in law in taking extraneous matters into consideration instead on considering whether or not the appellant is entitled to a valid defence to the originating summons. ”
When this appeal was called up for hearing on the 4th February, 2008, Gboyega Oyewole, Esq., Hon. Attorney General of Ekiti State, with whom was Gbemiga Adaramola, Esq., Assistant Chief Legal Officer, for the appellant, adopted the appellant’s brief dated 9th February, 2005 and deemed filed on 16th February, 2005, as the appellant’s arguments in this appeal. He withdrew the appellant’s reply brief already filed.
Femi Falana Esq., learned counsel for the respondent, did not oppose the application to withdraw the appellant’s reply brief.
However, in like vein, he adopted the respondent’s brief filed on 22nd November, 2007. He urged the court to dismiss the appeal in its entirety on the basis that the appellant deliberately chose not to defend the case at the lower court.
The appellant’s reply brief, having been withdrawn, was promptly struck out by the court. The learned Attorney General distilled two issues for the determination of this court from the four grounds of appeal, thus:
(i) Whether or not the High Court has the competence and jurisdiction to entertain the Originating summons when same was incompetent before the court; and
(ii) Whether or not the defendant /appellant was given fair hearing in this suit at the lower court.
Learned counsel for the respondent, in like vein formulated his issues for determination thus:
- Whether the lower court has the jurisdiction to entertain the originating summons. (Grounds 1 and 3).
- Whether the appellant was given fair hearing having regard to the facts and circumstance of the case. (Grounds 2 and 4)
It is apparent that both sets of issues formulated say the same thing in different ways. Since the issues formulated, by the respondent’s counsel are more apt and concise, I adopt same in the consideration of this appeal.
Concerning the first issue, it is argue by the learned appellant’s counsel that the originating summons filed by the respondent at the lower Court was irregularly issued in that it did not contain the signature of the Registrar or other officer of the court duly authorized to sign the summons. It is argued that this is in contravention of Order 6 rule 8 of the Ondo State High Court (Civil Procedure) Rules applicable to Ekiti State. Learned counsel has argued that rules of court are meant to be obeyed and that failure to obey the rules is more than a technicality. He cited Auto Import & Export v. Adebayo (2002) 18 NWLR (Pt. 799) 554 at 558 and Broad Bank (Nig.) Ltd v. Alh. S. Olayiwola & Sons Ltd (2001) 6 NWLR (Pt. 710) 742 at 758.
He contended that the respondent, as plaintiff at the lower court, did not make any provision for the endorsement of the Registrar on the summons. Therefore, this cannot be called an administrative lapse on the part of the court Registrar since the originating summons was prepared by the respondent. On the premise that the proper issue of a writ/originating summons is a condition precedent to effective adjudication, it is argued that the summons is incompetent and should be set aside. Being so incompetent, the learned Attorney-General has contended that the court below lacked jurisdiction to have entertained the suit. He cited the following cases in support of these submissions: Miti v. New Nigeria Bank Plc (1997) 3 NWLR (Pt. 496) 737; Broad Bank (Nig.) Ltd v. Alh. S Olayiwola (supra); Ikem v. Nwogwugwu (1999) 13 NWLR (Pt. 633) 140. The learned Attorney-General finally submitted that the non-filing of the amended originating summons in the court registry and the non-service of the amended originating summons on the appellant before arguments were taken on same was a fundamental breach of Order 26 rules 4, 5 and 6 of the Ondo State High Court (Civil Procedure) Rules, 1987, which has rendered the whole proceedings a nullity. He therefore urged the court to resolve this issue in favour of the appellant and to allow the appeal.
In responding, learned counsel for the respondent, Mr. Falana, conceded that rules of court are meant to be obeyed. It is however, his contention that a party cannot be penalized for an error or omission committed by an official of the court. For this, he relied on Saude v. Abdullahi (1987) 4 NWLR (Pt. 116) 387 and Famfa Oil Ltd v. Attorney General of the Federation (2003) 51 WRN 1 at 8; (2003) 18 NWLR (Pt.852) 453. Learned counsel argued that the respondent took out the originating summons after having paid the necessary filing fees. He contended that, due to the inadvertence or ignorance on the part of the Registrar, the process was not endorsed as required by the Rules of Court. He argued that since the respondent had no hand in the default of the Registrar, it cannot be said that the originating summons is incompetent. Learned counsel therefore, submitted that it is totally misconceived to question the jurisdiction of the lower court to entertain the substantive matter on the ground that the Registrar did not endorse the originating summons.
Concerning the issues of the alleged non-filing of the amended originating summons and non-service of same on the appellant raised in the appellant’s brief, learned counsel submits that, since these issues were not canvassed before the lower court, the appellant cannot raise them before this court without leave. He cited Okotcha v. Henva (2001) 16 WRN 152; (2000) 15 NWLR (Pt.690) 249. He therefore, contends that this issue ought to be resolved in favour of the respondent.
The issue to be addressed here is whether or not the fact that the registrar of couldnt did not sign the Originating summons constitutes an incurable irregularity that invalidates the summons or renders it a nullity. Put another way, whether the non-signing of the summons by the Registrar or other officer duly authorised in breach of Order 6 rule 8 of the Rules of Court rendered the process null and void or merely irregular. In this regard, Order 6 rule 8 of the High Court (Civil Procedure) Rules of Ondo State, 1987 applicable to Ekiti State provides as follows:
“Issue of an originating summons takes place upon it being signed by the Registrar or other officer of the court duly authorized to sign summonses.”
It is thus clear that an originating summons cannot be said to have been properly issued unless it has been duly signed by the Registrar as prescribed under the Rules. In the instant case, it is not in dispute that there is no signature of the Registrar on the originating summons. It is therefore, apparent that, this is in contravention of the provisions of the said Order 6 rule 8 of the High Court (Civil Procedure) Rules, 1987. Nonetheless, the real question for determination is the effect of this error of the non-signing of the originating summons. The trial court, when confronted with this issue in the preliminary objection held as follows at pages 63 to 64 of the record:
“I agreed (sic) that it is well settled law that breach of a rule of practice can only render a proceeding irregular and not a nullity. In any of the forms prescribed in Order 6 rule 2, there is no column for the Registrar or any other official of the court duly authorized to sign. Therefore, the plaintiff could not be blamed for failure of the Registrar or any of the officials of the court to sign the originating summons issued in this case. In the case of Alawode v. Semoh (1959) 4 FSC page 29; (1959) SCNLR 91 it was held that the delay in the issue of a writ is all administrative matter which did not concern a plaintiff who has paid the necessary fees with his application and particulars of claim.
I am of the opinion that the reasoning applies to the failure of the Registrar to sign this originating summons. The plaintiff in this case having fulfilled their part of the procedural requirement, it is clearly no concern of theirs that the Registrar has failed to comply with the Rules as prescribed. See Alhaji Daim Saude (supra). The preliminary objection in my humble view lacks merit and it is hereby dismissed.”
Indeed, that is the position of the law in relation to infractions against Rules of Court, which go to procedure and therefore amount to no more than irregularities that do not touch on the substance of the case. The fact that the summons, which was duly filed after due payment of appropriately assessed fees, was not signed by the Registrar or other officer duly authorised, does not constitute an incurable irregularity and does not render the process a nullity as the originating summons could have been rectified quite easily at such initial stage of the proceedings by the Registrar or other officer signing same as required by the rules. Any non-compliance with Rules of court is prima facie an irregularity and not a ground for nullity, unless such non-compliance amounts to a denial of justice.
See Okoye v. Nigeria Construction Co. Ltd. (1991) 6 NWLR (Pt. 199) 501. In Famfa Oil v. A-G., Federation (supra) cited by learned counsel for the respondent, Belgore, J.S.C, (as he then was), put it quite aptly when he said thus at page 467 of the report:
“There is no dispute that the appellant went to the Federal High Court, Abuja Division, to take out an originating
summons. He paid all the fees and signed all the papers. The issuance of the summons, under the rules, should be completed by the judge, sitting in chambers, signing it. The plaintiff taking out originating summons deals with court officials, registrars and not with the judge. The Registrar is to take the summons to the judge in chambers to sign. It is an administrative affair. The plaintiff in such situation has no supervisory power over the process leading from appellant as plaintiff did all he must do to take out the originating summons. The registrar instead of taking the summons to the judge in chambers to sign, cancelled the word “Judge” and superimposed his own signature. Whose failure is this? Certainly the appellant had no hand in this error and should not be visited on it. ”
There is no doubting the fact that the respondent, as plaintiff in the originating summons, duly initiated the action as prescribed by the Rules. The plaintiff did all that was required of it by law to commence the action. The plaintiff’s originating summons was duly prepared by it and delivered to the Registrar in the usual way for the assessment of the court fees payable. It was duly assessed by the Registrar and the necessary fees were fully paid. It is also not in dispute that the plaintiff did comply with all that was required of it by law and the rules of court to commence or initiate its action appropriately.The point must be made that once a prospective plaintiff has properly made his claim as required by law, delivered the same to the Registrar for the assessment of the necessary fees payable and such fees are fully paid, his responsibility ceases. What is left to be done, such as the signing of the relevant process or the writ of summons or the originating process by a judge or other officer empowered by law so to sign are entirely the domestic affairs of the court and its staff. A plaintiff may not, in the interest of justice, be unduly penalised for the mistakes or oversight of the court and its staff in connection with such internal matters, particularly where no miscarriage of justice, as in the present case, is occasion. See Famfa Oil Ltd. v. A.-G., Federation (supra); Alawode v. Semoh (1959) SCNLR 91. It is inconceivable that in the circumstances of this case, there has been a denial of fair hearing or that any miscarriage of justice has resulted to the appellant.
Courts have since shifted away from the narrow technical approach to justice and now pursue the course of substantial justice. Accordingly, courts of law should not be unduly tied down by technicalities, particularly where no miscarriage of justice would be occasioned. Justice can only be done in substance and not by impeding it with mere technical irregularities that occasion no miscarriage of justice. Thus, where the facts are glaringly clear, courts are admonished to ignore mere technicalities in order to do substantial justice. See Consortium M.C. v. NE.PA. (1992) 6 NWLR (Pt. 246) 132; Bello v. A.-G., Oyo State (1986) 5 NWLR (Pt. 45) 828; Okonjo v. Dr. Orije & Co. (1985) 10 SC 267. The courts will not insist on strict compliance with any particular rules of court if such strict application would inflict outright injustice. Whenever a plaintiff establishes a wrong that has been inflicted on him by a defendant, he should be granted a remedy in spite of defects and other inadequacies as to form and contents of the document by which he initiates and sets out his claim. See Saleh v. Monguno (2006) 7 SCNJ 236; (2006) 15 NWLR (Pt.1001) 26. Rules of court, as for as the conduct of proceedings is concerned, are generally binding on the parties and the court and a party would be allowed to complain of a procedural irregularity on appeal if, inter alia, it can be shown that it materially affected the merits of the case or that he suffered a miscarriage of justice by reason of such irregularity in the proceeding. See Maja v. Samouris (2002) 3 SCNJ 29; (2002) 7 NWLR (Pt.765) 78. However, irregularities which derive from the breach of rules of procedure that do not, by themselves, occasion a miscarriage of justice, do not generally render proceedings a nullity. Nalsa & Team Associates v. NNPC (1991) 11 SCNJ 51; (1991) 8 NWLR (Pt.212) 652.
In my view, the fact that the originating summons was not signed by the Registrar or other officer duly authorised in that regard is a technicality that should not be allowed to defeat the cause of justice in this case, particularly when the Registrar could have been quite early directed to sign same in order to regularise the process. Therefore, for all the reasons stated,I answer the first issue in the affirmative in favour of the respondent. Grounds 1 and 3 fail.
On the second issue which is whether the appellant was given a fair hearing having regard to the facts and circumstances of the case, it is the appellant’s position that, by refusing the appellant time within which to file a counter affidavit to the amended originating summons, the respondent, (as plaintiff) on the one hand, and the appellant, (as defendant on the other), were not placed on the same footing or given equal rights before the court to present their cases. Learned counsel for the appellant argues that this is more so as the lower court went ahead to allow the respondent to argue his originating summons on the same day, i.e. 23rd March, 2004 and gave judgment subsequently in the respondent’s favour. He further argues that the refusal of the request to allow the defendant to file its counter affidavit to the summons to the Court via a letter from counsel amounted to a denial of fair hearing to the appellant in contravention of section 36 of the 1999 Constitution. He cited Nwankwo v. Anieto (2002) 2 NWLR (Pt. 752) 729 at 758. It is further his contention that he was not tardy in filing the counter affidavit as doing so before filing the notice of preliminary objection would have been considered taking fresh steps after becoming aware of the irregularity he complained of in his objection in line with Order 2 rule 2 of the High Court Rules. It is argued that by granting the respondent’s application to amend the originating summons and hearing arguments on the summons on the same day on which the court dismissed the motion for stay of execution pending appeal and still denied the appellant time to file its counter-affidavit, the court failed to observe the doctrine of audi alteram partem. He contended that the court should not have sacrificed justice at the expense of a speedy trial. He cited the case of Umar Mohammed v. Commissioner of Police (1999) 12 NWLR (Pt. 630) 331 at 340. For these reasons, he urged the court to allow the appeal and declare the proceedings at the trial court a nullity.
In response, learned counsel for the respondent has submitted that “fair hearing within a reasonable time” depends on the circumstances of each case. He contended that in the circumstances of this case, the lower court made it abundantly clear that it was going to determine the originating summons before the Local government elections filed for Saturday, March 27″‘, 2004. This, he said, was to enable the candidates contesting the election to know their fate. He argues that it was in a bid to frustrate the hearing of the substantive case that the appellant resorted to a number of dilatory tactics, which the lower court saw through and rejected. He chronicled the events that took place at the lower court to buttress his assertion. Learned counsel submitted that the case of Umar Mohammed v. Commissioner of Police (supra) does not enure to the benefit of the appellant who was afforded a fair hearing but chose to engage in delay tactics. He contended that the appellant, having agreed on the 22nd March, 2004 to argue the originating summons on the 23rd March, 2004, the letter seeking an adjournment written by the learned Attorney-General was properly rejected by the lower court. In any case, the Deputy Director of Civil Litigation in court, who was properly seised of the matter, decides to address the court.
He argued that instead of sending a letter to the court for an adjournment on 23rd” March, 2004, the learned Attorney-General could have filed his counter- affidavit. But having decided to frustrate the determination of the case before the election slated for 27th March, 2004, every move was adopted to achieve that objective. Learned counsel argued that instead of filing a counter-affidavit to the originating summons timeously, the appellant filed a notice of preliminary objection challenging the jurisdiction of the lower court on the ground that the original process was not properly endorsed by the court Registrar. The objection was dismissed and thereafter, counsel to both parties addressed the court. Since the facts in support of the originating summons were not in dispute, the submissions of counsel were based on the relevant provisions of the Constitution. He therefore urged the court to resolve both issues in favour of the respondent and to dismiss the appeal for lacking in merit.
The second issue for determination calls for a resolution of the issue as to whether the appellant received a fair hearing given the circumstances of the case. It is therefore necessary to advert to the peculiar facts of the case for a just determination of this issue. Local Government elections in Ekiti State were slated by the appellant to be held on the 27th March, 2004. It is for this express reason that the appellant issued guidelines, a part of which led to the filling of this suit on the 10th February, 2004. (See page 1 of the record). Upon being served with process, the appellant filed a notice of preliminary objection to the hearing of the suit on the 5th March, 2004. (See page 14 of the record). This was heard on the 11th March, 2004 and the ruling thereon delivered on 15th March, 2004. (See pages 41-46 of the record). Thereafter, the appellant filed an appeal against the ruling of the court, as it is its right, on the 18th March, 2004 and simultaneously filed a motion on notice to stay further the proceedings in the suit pending the final determination of the appeal. This motion was again heard on the 22nd March, 2004 and the ruling thereon delivered on the 23rd March, 2004. On the same date, the respondent also moved a motion to amend the originating summons and to deem same as duly filed and served, the prescribed filing fees having been paid. The motion was unopposed and so same was granted as prayed. (See page 49 of the record). Thereafter, learned counsel for the appellant sought for a stand-down till 2.30 p.m. and same was granted. At 2.30 p.m., counsel now sought an adjournment and this is what transpired at page 50 of the record:
“Mr. A. A. Morakinyo: I am making an application for an adjournment of this case. The Honourable commissioner will like to lead me in this case. We are making (sic) the case to be adjourned to Monday 29/3/2004. Mr. Femi Falana: We are opposing an adjournment. This case related to the election coming up on 27/3/2004. By Monday 29/3/2004, the election would have come and gone. The application has not been done in the interest of justice.
Court: the application to adjourn this case till Monday 29/3/2004 is in the interest of justice. It is therefore refused. ”
Mr. Falana then went ahead to present his arguments in substantiation of the reliefs sought in the originating summons, while Mr. Morakinyo declined to present his arguments in reply as, in his words:
“I have not been briefed to go on with the matter. I cannot therefore reply”.
The court therefore went ahead to reserve judgment for the 25th March, 2004. On that date, the learned Attorney-General, who had now re-appeared in court, moved a motion filed the previous day to arrest the judgment of the court and to give the appellant the liberty to defend the matter. The learned trial judge after cataloguing the events that led up to the application so far, held inter alia thus:
“Although a litigant should not be deprived of an opportunity of a hearing yet a litigant who by his mis-judgement or deliberate decision does not avail himself of the opportunity of a hearing cannot complain … By the natural justice principle of such Alterem Partem (sic) (i.e Audi alteram partem); an should (sic) in the constitutional provision of fair hearing, a party is only entitled to be offered an opportunity to be heard. A party cannot be forced to attend trial. A defendant is not compellable to tender a defence to a action as it is not within the competence of the court to compel a party to proper (sic) a defence to an action. See Jonason Triangle Ltd v. Charles Moh & Partner:; Ltd (1999) 1 NWLR B (Pt. 588) 555. The application praying for the two reliefs is hereby dismissed since it lacks merit. ”
The learned trial judge then proceeded to deliver his judgment. These are the brief facts upon which the appellant asserts; he was denied a fair hearing. With the greatest respect to the learned Attorney General, I find myself quite unable to agree with him on his complaint. From what transpired at the court below, it is my opinion that the learned trial judge bent over backwards to accommodate appellant, (as defendant at the lower court). Yet at every point, the defendant, it seemed, had a suicidal fascination to see how far he could push the court further. It is quite apparent from the claim in the originating summons that time was of the essence in the determination of the suit. The Local Government elections were scheduled to hold on the 27th March, 2004 and this date had been fixed by the appellant/defendant itself, as the electoral body saddled with the responsibility of conducting the elections. The respondent/ plaintiff filed the originating summons on the 10th February, 2004, in good time for the matter to be heard and determined before the date of the election. Yet, for whatever reason best known to the appellant, the appellant appeared to be stalling the proceedings of the court at every turn. For instance, what was the intention behind the learned Attorney-General’s request for an adjournment on the 23rd March, 2004 when the matter was to be heard, to the 29th March, 2004 when he knew very well that the elections were scheduled to take place on the 27th March, 2004? This, in my view, was clearly intended to overreach the interest of the respondent, and the court below acted quite rightly in refusing the application for adjournment.
It does seem the vogue these days for younger counsel to ask for adjournments on the ground that a more senior colleague would like to do the matter” personally”, whatever that means. It is strange that an advocate of the Supreme Court of Nigeria should decline to respond to a matter, as that before the trial court requiring an expeditious hearing, and, in spite of the apparent urgency on the face of the summons, ask for an adjournment for a more senior colleague, the Attorney General, to handle it. That is very sad. See Madu v. Okeke (1998) 5 NWLR (Pt. 548) 159. Once counsel announces his appearance in court, whether he is holding brief for another counselor not, the court presumes that he is fully mandated and/or authorised to conduct the case on behalf of his principal or his client. See Falomo v. Banigbe (1998) 7 NWLR (Pt. 559) 679. Whenever an application for an adjournment is therefore made to a court, the court should bear in mind the requirement that justice should be done to both parties, and that it is also in the interest of justice that the hearing of a case should not be unduly delayed. It should only grant it if a refusal of the application is most likely to defeat the rights of the parties altogether or be an injustice to one or the other of them, unless there is sufficient cause for such refusal. See Salu v. Egeibon (1994) 6 SCNJ 223.Turning to the facts of the case, it is beyond doubt that the conduct of the appellant throughout the proceedings before the trial court was calculated to delay the proceedings. There was no good and sufficient cause for the grant of the application for an adjournment. The reason advanced for seeking the adjournment from the letter of the learned Attorney-General was ostensibly in order for him to come and defend the case personally. This reason should be considered side by side with the fact that the learned Attorney-General had been in court the previous day leading Mr. Morakinyo, the Deputy Director Civil Litigation, and Mr. Morakinyo was himself in court on the 23rd March, 2004. There was nothing before the court to suggest that Mr. Morakinyo, a very senior officer in the Ministry of Justice, was unwilling or unable for any reason to proceed with the matter. Instead, with profound respect, it appeared the learned Attorney-General simply wanted to further delay the day’s proceedings at his convenience so he could personally be in coul1 to handle the case. However, courts do not exist for counselor litigants’ convenience. The learned trial judge exercised his discretion quite rightly, in my view, by refusing the application for adjournment on such an insubstantial and feeble reason. The exercise of discretion is a matter exclusively for the court to do after weighing all the circumstances of the case in the interest of justice and the balancing of the interest of the parties involved, including the balance of convenience and disadvantages which might be suffered by any of the parties concerned. It is after the court shall have given consideration to such matters that it can arrive at what is undeniably a difficult decision, which must appear reasonable in all circumstances of a particular case. Exercise of such discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the particular case, guided by the spirit and principles of law and is reviewable only for an abuse thereof. See Echaka Cattle Ranch Ltd. v. N.A.C.B. Ltd. (1998) 3 SCNJ 54; (1998) 4 NWLR (Pt.547) 526. From an examination of the antecedent of this case leading up to this inauspicious application for an adjournment, it is my candid opinion that the learned trial judge, Babalola, J., exercised his discretion judicially and judiciously in refusing the application. The law is trite that an appellate court must not interfere with the exercise of discretion unless it can be shown that such discretion was not exercised judicially and judiciously, that is to say, if the exercise was mala fide, arbitrary or illegal either by the consideration of extraneous or illegal matters or failure to consider material issues, or otherwise that it was exercised in a manner that was inconsistent with the ends of justice. See Oyeyemi v. Irewole Local Government (1993) 1 NWLR (Pt. 270) 462; University of Lagos v. Aigoro (1985) 1 NWLR (Pt. 9) 143. The learned trial judge was of the firm view, and quite rightly too, that an adjournment should not be granted. I cannot see my way clear to interfere with this exercise of the trial court’s discretion given the entire acts and circumstances of this case. I think the court below was perfectly right when it refused to allow a further delay in the just determination of the originating summons before the court.
Furthermore, from the record of the lower court, it is very instructive that the appellant, knowing fully well that it had not filled a counter-affidavit to the affidavit of the respondent in support of the originating summons since it was served on 20th February, 2004, never took steps to file same, until the 24th March, 2004, when he knew that judgment had been reserved for the next day, the 25th March, 2004. In the same breath, he sought for an order arresting the judgment of the court. This was an apparent attempt, for the umpteenth time, to scuttle the hearing of the case before the conduct of the elections. Happily, the learned trial judge doggedly insisted in ensuring that the matter was heard and determined on its merit.
The issue now is can the appellant be heard to complain that he was refused a fair hearing on the peculiar facts and circumstances of this case? I think not. The term “fair hearing” in relation to a case means that the trial of the case or the conduct of proceedings thereof is in accordance with the relevant law and rules in order to ensure justice and fairness. See Uguru v. The State (2002) SCNJ 282; (2002) 9 NWLR (Pt.771) 90. In view of the trend before our courts where counsel tend to take refuge in this principle of fair hearing whenever they are in trouble and need a way out,the learned and well respected jurist of our time, Niki Tobi, J.S.C., in Newswatch Communications Ltd v. Attah (2006) 4 SCNJ 282 at 299-300; (2006) 12 NWLR (Pt.993) 144 at 170-171, took time out to make an in depth pronouncement on the principle of fair hearing. Due to the far-reaching nature of the pronouncement and the importance of fair hearing to our system of adjudication, I will quote him in extenso.
Indulge me.
“The constitutional principle of fair hearing is for both parties in the Litigation. It is not only for one of the parties. In other words, fair hearing is not a one-way traffic but a two-way traffic in the sense that it must satisfy a double carriage-way, in the con of both the plaintiff and the defendant or both the appellant and the respondent. The court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be justice. That will be injustice.
It is the duty of the court to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the court to make sure that party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the court cannot turn around to accuse the court of denying him fair hearing. That is not fair to the court and counsel must not instigate his client to accuse the court of denying him fair hearing. A trial judge can indulge a party in a judicial process for some time but not for all times. A trial judge has the right to withdraw his indulgence at the point the fair hearing principle will be compromised, compounded or will not really be fair as it affects the opposing party. At that stage, the trial judge will, and rightly too for that matter, retrace his steps of indulgence and follow the path of fair hearing as it affects the opposing party, who equally yearns for it in the judicial process. At that stage, the party who is not up and doing to take advantage of the fair hearing principle put at his door steps by the trial judge, cannot complain that he was denied fair hearing.
The fair hearing principle formerly entrenched in Section 33 of the 1979 Constitution, and now section 36 of the 1999 Constitution is not for the weakling, the slumbered, the indolent or the lazy litigant, but it is for the party who is alive and kicking in the judicial process by taking advantage of the principle at the appropriate time. The principle is not available to a party who sets a trap in the litigation process against the court and accuse the court of assumed wrong doing even when such so-called wrong doing is, as a matter of fact, propelled or instigated by the party, through his counsel. ”
This very insightful statement says it all and effectively captures the appellant’s attitude at the lower court in its stiff-necked refusal to take advantage of the atmosphere of fair hearing created and facilitated by the learned trial judge, only for him to turn around to cry wolf! He will not be indulged by this court. From the proceedings of the court as re-hashed earlier, it is my firm view that the conduct thereof was in accordance with the relevant principles of fair hearing. There is nothing to justify the allegation of an unfair hearing. The appellant was given abundant opportunity to be heard, but he preferred to dilly dally right until the very date fixed for judgment. There was no obligation on the trial court to make the appellant respond to the claim. Way back on the 18th February, 2004, when the preliminary objection to the hearing of the summons was dismissed, the appellant had the option of filling his counter-affidavit in order that the originating summons be heard on its merit. But he did not. He chose, instead, to file a motion for stay of proceedings, then applied for an adjournment on an unconvincing reason to an unrealistic date relative to the cause of action, and then ultimately filed an application to “arrest” the judgment of the court. If this does not reveal an intention to delay the proceedings of the court, I don’t know what more could have been done before the message would ring out clear. Indeed, the appellant did his best to treat the proceedings of the court with disdain. What is more, the Supreme Court has denounced the practice where litigants attempt to “arrest” the judgment of a court. Hear Oguntade, J.S.C, in the case of Newswatch Communications Ltd v. Attah (supra) at 179:
“The rules of court do not make provision for all application to arrest a judgment, which is about to be delivered by a court. An application not recognised by the Rules of Court cannot be described as a proper application. I think that the application to arrest the judgment about to be delivered was in fact a cynical attempt to taunt the trial court, given the fact that the appellant had before then, disdainfully refused to put his defence. I am unable to see that the appellant was in the circumstance denied its right to fair hearing. ”
In line with the above finding, I am firmly of the opinion that the facts of the case do not bear out the allegation that the appellant was denied a fair hearing. Instead, the appellant received a fair hearing at the hands of the learned trial judge who evidently gave him sufficient opportunity to be heard, which opportunity he time and again derisively scoffed at. The second issue is therefore also resolved in favour of the respondent. Grounds 2 and 4 fail.
Finally, the appellant has raised the issue of the alleged non-filing of the amended originating summons and the non-service of same on the appellant. Without much ado, I agree with learned counsel for the respondent that since these issues were not canvassed at the lower court and no pronouncement was made on same in the judgment of the court below, the appellants are barred from raising them before this court without leave having been sought and obtained. Without leave, the appellant cannot be heard on these points. See Ezukwu v. Ukachukwu (2004) 7 SCNJ 189; (2004) 17 NWLR (Pt.902) 227; Kwajaffa v. B.O.N Ltd. (2004) 5 SCNJ 121; (2004) 13 NWLR (Pt.889) 146; Lebile v. Reg. Trustees C & S. Church (2003) 1 SCNJ 463; (2003) 2 NWLR (Pt.804) 399; Global Transport Oceanica SA v. Free Enterprises Nig. Ltd. (2000) 2 SCNJ 159; (2001) 5 NWLR (Pt.706) 426. I do so hold.
In the result, having resolved the two issues in favour of the respondent, the appeal necessarily fails. It is completely bereft of merit and ought to be dismissed. The appeal is dismissed with N10,000.00 costs against the appellant.
Appeal dismissed.
Other Citations: (2008)LCN/2700(CA)
