Angos Dide & Anor. V. Ebiotu Seleiletimibi & Ors. (2008)

LawGlobal-Hub Lead Judgment Report

IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.

This is an appeal against the judgment of the Governorship and Legislative Elections Tribunal holden at Yenagoa, Bayelsa State delivered on 25/9/07, thereby dismissing the Appellants’ petition No.: LH/EP/BYS/11/07.

As it would appear from the records of the lower tribunal, on 14/4/07 the 3rd and 4th Respondents had conducted an election for membership into the Bayelsa State House of Assembly. The 1st Appellant, 1st Respondent and one Mr. Wilfred Ogbe had contested the said election on the platforms of the Labour Party (LP), the Peoples Democratic Party (PDP) and Movement for the Restoration and Defence of Democracy (MRDD) respectively. At the conclusion of the election in question, the 3rd Respondent declared the 1st Appellant as the winner thereof.

Dissatisfied with the result of the election, the Appellants filed their petition dated 14/5/07 in the lower tribunal praying for the following reliefs:

(a) That it be determined and I am the rightful winner of the Bayelsa State House of Assembly Election for Ekeremor Constituency II conducted on 14/4/2007 having scored the majority of lawful votes cast at the election.

(b) That the 1st Respondent did not win and cannot be declared the winner of the said election having not scored the majority of votes cast at the election.

(c) That it be determined that the 1st Respondent ought not to, and was not qualified to have contested the election on grounds of perjury and deliberate falsehood regarding his age and place of birth.

(d) That the 4th Respondent should issue the return certificate to me as I am the duly elected candidate for the said election.

(e) Alternative to relief (c) above, that it be determined that the original result forwarded by the 3rd Respondent to the Headquarters of 4th Respondent wherein I was returned as the duly elected candidate for Bayelsa State House of Assembly Election for Ekeremor Constituency II ought to be and is the correct version of the result of the said election.

Both the 1st and 4th Respondents filed their respective replies to the petition. The hearing of the petition commenced on 20/8/07, with the 1st petitioner testifying as PW1. The Appellants’ second witness (PW2) was one Oladeji Blessing Tunde, who testified on the same date. On 21/08/07, when the petition came up for continuation of hearing, the petitioners’ senior counsel, Mr. Adedipe SAN was absent but sent a letter to the lower Tribunal seeking an adjournment of the petition, on the ground that he had another election matter to attend on 23/8/07 in Akure, Ondo State. The lower tribunal, in considering the application in question, held inter alia, thus:

In the circumstances of this case, especially having regard to our Rulings of 21/08/07 on this and other related applications by the said counsel to the Applicants Mr. Adedipe SAN we are of the view that this application for adjournment does not only lack merit but is also a patent abuse of legal process. It is therefore refused. In consequence of the refusal the petitioners are deemed to have closed their case. The Respondents are therefore hereby called upon to open their defence since these were all in our ruling yesterday adjourning the matter today.

Consequently, both the counsel to the 1st and 2nd Respondents declined to call any witness and opted to rather rely on the 4th Respondent’s witness. One Patience Bokiri testified for the 4th Respondent as DW1, thus bringing the case for the defence to a close. The lower tribunal accordingly adjourned the petition to 10/8/97 for adoption of written address.

It is instructive that on the said 10/9/07, the petitioners’ counsel, Mr. Adedipe SAN, filed a Motion on Notice dated 07/9/07 seeking the following reliefs:

1. An Order setting aside the order of the Honourable Tribunal made on 22nd day of August, 2007 where in the petitioners/Applicants were foreclosed from calling further witness(s) in this petition.
2. An Order granting the petitioner/Applicant (sic) leave to conclude their defence through their last witness.
3. And of such Order or Orders as this Honourble Tribunal may deem fit to make in the circumstances of this petition.

The said Motion was expeditiously heard by the lower tribunal on the same day it was filed i.e. 10/9/07. At the conclusion of the oral submissions of the respective learned counsel on the application in question, the lower tribunal came to the following conclusions:

In the end we hold that the application dated 07/9/07 and filed today 10/09/07 completely lacks merit and its hereby dismissed in it’s entirety. The case remains for what is stated for today, which is adoption of address. On this score we wish to frown at attitude of counsel of filing applications at late hours like today thus giving the impressions of a fait accompli having regard to what is scheduled for today being adoption of written address but failing to say anything about it. We finally affirm the dismissal of the application dated 07/09/07 and filed today for lacking in merit.

However, the above ruling and directive notwithstanding, the lower tribunal deemed it expedient to further adjourn the petition to 14/09/07 for the adoption of written addresses by counsel. Consequently, judgment was delivered on 25/09/07 to the effect, inter alia, thus:

The allegation of falsification or cancellation of election result is criminal in nature of which the evidence required in proof of such allegation must be clear and unequivocal and the standard of proof required is prove (sic) beyond reasonable doubt. See Ezeduwo v. INEC (1999) 3 NWLR (Pt. 594)215. The petitioners have not proffered clear and unequivocal evidence to establish their claim.

As alluded to above, the instant appeal is against the lower tribunal’s judgment in question.

Instructively, the learned counsel have filed and served their respective briefs of argument. Most particularly, the Appellants’ Brief was dated and filed on 05/11/07. The 1st Respondent’s Brief was dated the 04/12/07 and filed on the same date. The 2nd Respondendt’s Brief was dated 07/12/07, but filed on 10/12/07. The 4th Respondent’s brief was filed on 28/01/08 but deemed properly field and served on 12/2/08, respectively.

A total of three issues have so far been formulated in the Appellants’ brief of determination. They are set out as follows:

1. Whether the Honourable Tribunal by refusing the Appellants application to withdraw form CF001 to enable them fulfill the condition for its admissibility and marking the same “refused” had not occasioned a miscarriage of justice against the Appellant?
2. Whether the decision of the Honourable Tribunal to shut out the Appellants from proving their case did not amount to a denial of fair hearing and a travesty of justice against the Appellants?
3. Whether the failure of the Honourable Tribunal to properly evaluate the evidence of the Appellants and their witness did not occasion a miscarriage of justice?

On his own part, the 1st Respondent has deemed it fit to adopt the Appellants’ issue No. 1, but formulated two distinct issues for determination in the brief thereof, thus:

(1) Whether from the circumstances of this case, the Honourable Tribunal had denied the Appellants their right to fair hearing so as to occasion a miscarriage of justice to therein(sic)? and

(2) Whether the Appellants had established their entitlement to the relief sought by them into the petition so as to warrant a setting aside of the judgment?

The 2nd Respondent has equally raised three issues for determination in the brief thereof to wit:

1. Whether the Tribunal’s rulings of 20th and 22nd of August, 2007, occasioned a miscarriage of justice against the Appellants by refusing the Appellants’ application to withdraw form CF001, marking it as rejected and also refusing the tendering of the same document?
2. Whether the decision of the tribunal to foreclose the Appellants did not amount to shutting out the Appellants, thus denying them fair hearing?

(3) Whether in it’s judgment the Tribunal properly evaluated the evidence of the Appellant?

It is trite that the court has a discretion to either adopt the issues formulated by parties in the briefs thereof, or formulate such issues it deems are necessarily consistent with the grounds of appeal filed by the Appellant.

it must however, be emphasized, for the avoidance of doubt, that issues formulated ought to essentially be consistent with the grounds of appeal filed, otherwise such issues would be liable to be declared incompetent. See OTUO VS. ONTEOGWUILE (1996) 4 NWLR (part 440) 56; EBO VS NTA (1996) 4 NWLR (part 442) 314; INCAR (NIG.) PLC VS BOLEX ENT. (NIG.) LTD (1996) 6 NWLR (part 454) 318; EKUNOLA VS CBN 2006 14 NWLR (part 1000) 292; JAMBO VS GOVERNOR OF RIVERS STATE (2007) ALL FWLR (part 394) 312 at 26 paragraphs D – F, respectively.

Having contrasted the different issues formulated by the parties in the respective briefs thereof, I am appreciative of the fact that they are not mutually exclusive. I have thus deemed it appropriate to determine this appeal on the basis of the three issues as raised in the Appellants’ brief. I will, however, first and foremost deal with issue No.2, which raises the question of breach of the Appellants’ right of fair hearing. The wisdom in my doing so is undoubtedly predicated in the trite doctrine that, once a plea of breach of fair hearing has been raised, determined, and successfully upheld, the court lacks the necessary vires or jurisdiction to further deal with other issues of merit raised in the case. See ARAKA VS EJEAGWU (2000) 15 NWLR (part 692) 684; OKEREKE VS NWANKWO (2003) FWLR (part 158) 1246; (2003) 9 NWLR (part 826) 592; EWO VS ANI (2004) ALL FWLR (part 2004) 1484; (2004) 3 NWLR (part 861) 610; NWAKANMA VS OJUKWU (2007) ALL FWLR (part 395) 504 at

519, paragraphs A – B, respectively.

ISSUE NO. 2

This issue is predicated on grounds 4 and 5 of the grounds of appeal. It raises the question of whether the lower tribunal’s decision to shut out the Appellants from proving their case has not amounted to a denial of fair hearing and travesty of justice against the Appellants. It was submitted that on 20/8/07, the lower tribunal refused the Appellants’ application for an adjournment to at least one week, but instead adjourned the petition to the next day- 21/8/07. That, on 21/8/07 the tribunal refused the re-tendering of the certified form CF001 by the Appellants, and accordingly adjourned the petition to the next day i.e. 22/8/07. That, on the said 22/8/07, the Appellants’ counsel sent a letter through a junior counsel to the lower tribunal seeking an adjournment o[‘ the petition. That, instead of adjourning the petition as requested, the lower tribunal foreclosed the Appellants from adducing any further evidence. It was also alleged that the tribunal had brow-beaten the Appellants’ Junior counsel into cross-examining the 4th Respondents witness. The case of USANI VS. DUKE & ORS. (2004) 7 NWLR (Part 871) 116 at 156 was cited and relied upon to the effect that while delay of justice is regarded as a denial of justice, hasty justice is equally as harmful. See also JANG VS INEC & ORS (2004) 12 NWLR (part 886) 46; paragraph 5 (7) of the Election Tribunal and Court Practice Directions, 2007.

It was argued that from the 20/8/07, when the Appellants opened their’ case by calling two witnesses PW1 and PW2, to 22/8/07, when the tribunal foreclosed the Appellant, could not rightly be regarded as a reasonable period within which the Appellants could have concluded their case as envisaged in both the provisions of the Electoral Act, the Federal High Court (Civil Procedure) Rules, and the Practice Directions, 2007, (supra), respectively.

It was further argued that the lower tribunal was obsessed with technical justice to the detriment of substantial justice. See HARUNA ABUBAKAR & ANOR VS INEC & ORS (2004) 1 NWLR (part 854) 1 at 231 – 232; UNILAG VS AIGORO (1985) 1 SC 265; OBASANJO & ORS VS YUSUF & ORS (2004) 9 NWLR (part 877) 144 at 225, respectively.

The learned counsel finally submitted on this issue that, from the totality of the proceedings of the lower tribunal, it would be very difficult to agree that the Appellants were given reasonable opportunity to present their case, as to enable it to effectively determine the case before it. He thus urged on this court to resolve the said issue No.2 in the Appellants’ favour.

The 1st Respondent’s issue No. 2 raises the same question as the Appellants’ issue No.2. It was the submission of the Respondent that the lower tribunal did not in any way deny the Appellants their right to fair hearing, that the tribunal was perfectly in order when it rejected the uncertified Form CF001 tendered by the Appellants. That, by virtue of section 148 of the Electoral Act 2006, the tribunal was obliged to give an accelerated hearing to, and determine, petitions presented to it. That, in accordance with the Practice Directions (supra), issues in controversy, including documents and witnesses to be called had been listed and narrowed down in the pre-hearing information sheets and at the pre-hearing session itself held on 17th, 23rd and 30th day of July 2007 respectively. Thus, all parties knew the case, applications and objections they were to meet at the hearing scheduled for 20th and 21st August, 2007. That, both the petitioners and Respondents were to lead and conclude their evidence in two days between 20th and 21st August, 2007. See NEWSWATCH COMMUNICATIONS LTD. VS ATTAH (2006) ALL FWLR (part 318) 580 at 601; ALUNDIJRO VS ALAYA (2007) ALL FWLR (Part 381) 1653 at 1672 – 673 paragraphs G – H.

It was finally argued that the Appellants did not complain against the order of the lower tribunal scheduling the petition for hearing within two days. That, they did not exhibit candour in the conduct of their case; they were busy chasing none-existent phantoms to use against the tribunal. The court has been urged upon to accordingly resolve this issue against the Appellants and allow the appeal.

The 2nd Respondent’s issue No.2 likewise relates to the Appellants’ issue No.2 under discussion. The submission of the 2nd Respondent’s counsel on the issue is to the effect, inter alia, that adjournments of matters in a court of law are not granted as a matter of course. They are granted at the discretion of a court See FAGBULE VS RODRIGUES (2003) FWLR (part 137) 1171. It was submitted that where a party fails to seize an opportunity of being heard, as the Appellants did by refusing to conclude their case, it can not amount to a denial of fair hearing. See DARMA V. OCEANIC BANK INT’L (NIG.) LTD. (2005) ALL FWLR (Part 248) 1622. The court is urged to discountenance the Appellants’ argument on (breach of) fair hearing, and accordingly resolves issue No. 2 against them in favour of the Respondents.

On his own part, the 4th Respondent has raised in issue No.2 thereof a question of whether the lower tribunal’s foreclosure of the Appellants has amounted to a denial of fair hearing occasioning a miscarriage of justice against them. It was submitted, inter alia, that the law on fair hearing is not an issue of sentiment; it is viewed from the circumstances of the case within the limits of the law and applicable rules of court or tribunal. See NEWSWATCH COMMUNICATION LTD VS ATTAH (supra) at 601; GOVT SSECONDARY SCHOOL VS DORCAS IGBUKDU (2005) 2 FWLR (Part 261) 261 at 262.

It was argued that none of the cases cited by the Appellants’ counsel is relevant to the present case. The court is thus urged to discountenance all those authorities, and accordingly resolve issue No.2 in favour of the Respondent.

I have accorded a very critical consideration upon the nature and circumstances surrounding the appeal, the submissions of the learned counsel in the respective briefs thereof and vis-a-vis the record of proceedings of the lower tribunal. It was the contention of the Appellants’ learned counsel, as alluded to above, that from the totality of the proceedings of the lower tribunal it would be very difficult to agree that the Appellants were given reasonable opportunity to present their case, so as to enable the Tribunal effectively determine the case before it. It is evident from the records of the lower tribunal, especially at page 153 thereof, that two definite dates i.e. 20th and 21st August, 2007 were slated for the hearing of the petition. The lower tribunal had recorded at the said page 153 of the record thus:

“With the exhaustion of all the items listed in the pre-trial schedule order, the petition was adjourned to 20th and 21st August, 2007 for hearing.”

At page 166 of the said record, the tribunal had also ruled, inter alia, thus:

In the circumstances, we hereby order as follows:

(1) Petitioners – 3 witnesses namely Angos Did Oludimeji Blessing and INEC official to tender ward collection Result Sheet date 14/04/07, like Patience Bokiri 2nd – 4th Respondents.

(2) 1st Respondent two witnesses (a) Ebiotu Selektimibi and (b) Niceman Dauyegha.

(3) 2nd to 4th Respondents one witness i.e. Patience Bokiri to tender only the document that was placed and annexed to the reply…………………………………………

Now having exhausted the 4 items of the scheduling order, case is hereby adjourned 20th and 21st of August, 2007 for hearing of the petition.

It is evident from the records that the petition was presented (filed) in the lower tribunal’s Registry on 14/5/07 by the Petitioner’s counsel, Mr. I. A Adedipe, SAN. On 06/7/07, the petitioners’ learned senior counsel in question equally personally filed a pre-hearing information containing the following depositions:

PRE-HEARING INFORMATION SHEET

1. No, we do not require this action to be consolidated with any other action(s)
2. Amendments to petition, or Reply to 1st Respondent reply are not required.
3. No further and better particulars of petition or reply to 1st Respondent’s reply is required.

4, There are no additional admissions.

5. No interpreters are required.
6. No, it’s an election petition and is therefore sui generic.
7. No, the Honourable Tribunal cannot resolve the dispute without trial.
8. No other lawful means of settling this petition is available.
9. All the witnesses listed are necessary for either party to call.
10. No further application is needed.

On 20/8/07, both the 1st petitioner and one Oladeji Blessing Tunde testified for the petitioners as Pw1 and PW2 respectively. The lower tribunal made an order adjourning the petition for continuation, thus:

In the end, the case is hereby adjourned to 21/8/07 for continuation of hearing so as to enable the petitioners tender their certified/document and the opening of the defence by the Respondents including the calling of Patience Boriki for the 4th Respondent.

On the said 21/8/07, Mr. Adedipe SAN and the Respondents’ counsel were all present in the lower tribunal. The petitioners’ counsel applied to tender from the Bar a certified True Copy of the particulars allegedly submitted by the 1st Respondent to the 4th Respondent. That application was however vehemently objected to by the Respondents’ counsel and accordingly refused by the lower tribunal thus:

This is an application to tender the 1st Respondents’ Form CF001 by Mr. Adedipe that he has now been certified (sic) the said document from INEC since what was rejected was through PW1 but now being tendered from the Bar. This was strongly opposed by the learned counsel to the Respondents.

…In this regard we are of the view that the authorities cited by the learned Applicant’s (sic) do not apply to the case at hand since the circumstances are radically different as shown in the above quoted rulings….”

…To us this appears to be a case of distinction without a difference having regard to our two ruling’s of yesterday.

In the circumstances we hold that the application lacks merit and it is hereby refused. It should be marked “tendered and rejected.

It was at this stage that Mr. Adedipe SAN applied for an adjournment of the petition on the ground that his last witness was “trapped on the road”. The Resondents’ councel vehemently objected to the application. The tribunal in its wisdom decided to stand down the petition. At 1pm when the tribunal resumed, the petitioners counsel submitted thus:-

Mr. Adedipe SAN:

I called my client about 20 minutes ago and he said the witness was still blocked. So I asked my client to come. I wish to emphasize that the documents I wish to tender are from the Nigeria Law School and Ambrose Ali University. They are copies that we have’ I have got a message that I am needed in Ondo State for pretrial conference. I submitted that I am at the discretion of the tribunal. I ask for an adjournment in the light of this unfortunate development. What I have are photocopies but the witness has both the certified and the originals. The witness is a police witorn who will tender them.

The lower tribunal instantly delivered a ruling upon the application thus: We have carefully considered the application for adjournment and the objections by learned counsel to the Respondents and in the circumstances of the case, especially having regard to the alternative submission of Mr. Egberipou on adjournment tomorrow 22/08/07. We hereby grant the adjournment to tomorrow, 22/08/07 for the petitioner (sic) to call their witness.

It is on record that on the said 22/08/07, when the petition came up for the petitioners’ 3rd witness to testify, the petitioners and counsel thereof were absent. The petitioners’ counsel however sent a letter to the lower tribunal vide one Prince D.O. Ejinyere seeking an adjournment of the petition.

The lower tribunal declined to adjourn the petition, closed the petitioners’ case and accordingly called upon the Respondents to open their defence.

One Mr. Oduma proceeded to open the defence of the 4th Respondent. It was at this stage that the said Prince D. O. Ejinyere was recorded as holding the brief of I.A Adedipe SAN for the petitioners. He however declined to cross-examine the DW1 called by the 4th Respondent on the following ground:

Ordinarily I would have wished to xx the witness but I am not seized with the facts of this matter. Just today I was made to deliver an application letter to this court and the application was rejected but the case was stood down for 4th Respondent. I only appeared to take records of what transpired with this witness. In the circumstances, I urge this tribunal for an adjournment in order for counsel who is seized of this matter to cross examine the witness.

Not surprisingly, the Respondents’ counsel vehemently opposed the application. Consequently, the lower tribunal held, inter alia, thus:

In the circumstances we hold that the application for adjournment by Prince Ejinyere not only lacks merit but is still a patent abuse of court process. It is hereby refused. In consequence Prince Ejinyere is hereby ordered to state his position whether he is cross examining PW1 or not.

Thus, in compliance with the above order of the lower tribunal, prince Ejinyere cross-examined the said DW1. Consequently, with the Respondents case coming to a close, the petition was adjourned to 10/09/07 for adoption of written addresses of counsel. It was on the said date that Mr. Adedipe SAN filed a motion on Notice seeking an order setting aside the tribunal’s order of 22/8/07 fore-closing the petitioners from calling their last witness. The said motion was argued by counsel on the 10/09/07 in question. The lower tribunal, however, refused the application, giving rise to the adoption of written addresses by counsel and the eventual delivery of the judgment on 25/9/07.

It is quite obvious from the above scenario, that on 22/8/07 neither the petitioners nor the counsel thereof, Mr. Adedipe SAN, was in court. However, there is every reason to believe that Princc D.O. Ejinyere who brought the letter from the petitioners’ counsel was in court on that day. In my considered view, the lower tribunal had erred in law when it failed to at least call on the said Prince Ejinyere to address it on the issue of foreclosing the petitioners. In view of the sprited, albeit fruitless, efforts of the petitioners’ counsel, Mr. Adedipe SAN, to secure an adjournment as borne out by the records, the appearance of the said Prince Ejinyere on 22/9/07 was no more than that of a glorified messenger.

There is every reason to believe that the tribunal’s reason for ordering Prince Ejinyere to cross examine the DW1, Patience Bokiri, was to say the least an after thought, with due respect to the tribunal. The tribunal had undoubtedly played itself to the gallery when it failed, albeit unwittingly, to call upon the said Prince Ejinyere to address it on the issue of foreclosure of the Appellants. Most/undoubtedly, the Ondo State Governorship and Legislative Election Tribunal, the Appellants’ senior counsel chose to attend to on the said 22/09/07, is of coordinate jurisdiction with the lower tribunal. Thus, not unnaturally, the lower tribunal must have felt slighted by the Appellants counsel’s choosing to go to Akure instead of appearing before it on the 22/9/07. However, considering the passionate pleas consistently made by the Appellants’ counsel on 21/9/07 and vide the letter thereof, the significance of the document sought to be tendered, and vis-a-vis the criminal nature of the allegation made in the petition against the 1st Respondent, the tribunal ought to have restrained and disposed itself liberally to the counsel’s application for adjournment. It is trite, that a hasty dispensation of justice equally tantamount to a denial of justice, as much as delay of justice. See USANI VS DUKE (supra) at 156 paragraphs A – C.

In the present case, the lower tribunal in its eagerness to expeditiously dispose off the petition constrained and denied the Appellants their unfettered right to fair hearing, as they were not heard prior to the tribunal’s decision to foreclose them. This court has an obligation to declare such a decision null and void. See UNONGO VS AKU (1983) SCN LNLR 11 NWLR (part 627) 397; NWAKANMA VS OJUKWU (2007) ALL FWLR (part 393) 558 at 517 – 518 paragraphs H – D; OGIAMEN VS OGIAMEN (1967) FWLR 205 at 208 per Ademola CJN (of blessed memory); ADEBUSUYI VS. ODUYOYE (2004) 1 NWLR (Part 854) 406; DALKO VS UBN PLC (2003) FWLR (part 180) 1500; (2004) 4 NWLR (part 862) 123, respectively.

It should be reiterated for the avoidance of doubt, that election matters are sui generis, which invariably are supposed to be expeditiously determined and disposed off. However, courts and tribunals have been admonished to adopt a liberal approach in dealing with such matters on their merit, rather than defeating the course of justice on sheer technicalities. See AJIBOLA VS AJADI (2004) 14 NWLR (part 892) 14 at 35 paragraphs E – F.

As alluded to above, the procedure adopted by the lower tribunal in abruptly closing the Appellants’ case, suo motu, is a negation of the objectives of the doctrine of the right of fair hearing, as cherishingly enshrined under section 36(1) of the constitution of the Federal Republic of Nigeria, 1999. The above proposition is predicated upon the well laid down trite principle that, the term fair hearing envisages that both parties to a case are accorded a reasonable opportunity to present their respective cases from the beginning to the end, without any let or hindrance. The term also envisages that the court or tribunal, as the case may be, seized of the case should be seen to be fair and impartial, devoid of the exhibition of bias against any of the parties. See ALSTHOM VS. SARAKI (2005) 3 NWLR (part 911) 208, 228 paragraph E; 229 paragraphs C – D; SALU VS EGEIBON (1994) 6 NWLR (Part 348) 23; CEEKAY TRADERS LTD VS GEN MOTORS LTD (1992) NWLR (part 222) 132, ATANO VS AG BENDEL STATE (1988) 2 NWLR (Part 75) 201; ELIKE VS NWAKWOALA (1984) 12 SC 301; MOHAMMED VS KANO NA (1968) 1 ALL NLR 424 respectively.

In the light of the above reasoning, there is every reason to believe that the foreclosing of the Appellants by the lower tribunal has amounted to a breach of the fundamental right to fair hearing thereof and thus occasioned an in justice thereto. The inevitable answer to issue No. 2 is in the affirmative, and its accordingly hereby resolved in favour of the Appellants.

Having thus resolved issue No.2 in favour of the Appellants, it goes without saying that it would amount to an academic exercise to determine the rest of the 1st and 3rd issues. The reason being predicated on the well trite principle, as alluded to above, that once a plea of breach of (the right of) fair hearing has been raised, determined and successfully up held, as in the instant case, the court lacks the vires to further venture into determining other issues of merit in the case. And I so hold. See NWAKAMA VS OJUKWU (supra) at 519 paragraphs A – B; ARAKA VS EJEAGWU (2000) 15 NWLR (part 692) 684;, OKEREKE VS. NWANKWO (2003) FWLR (part 158) 12 46,(2003) 9 NWLR (part 826) 592; EWO VS ANI (2004) ALL FWLR (part 200) 1484; (2004) 3 NWLR (Part 861) 610, respectively.

Hence, in the light of the aforementioned postulations, I have no hesitation whatsoever in coming to the conclusion that this appeal has merit and it is accordingly hereby allowed by me.

Consequently, the judgment of the lower tribunal dated 25/9/07 dismissing the Appellants’ petition No. LH/EP/BYS/11/07 is hereby set aside. The petition in question is accordingly remitted to the Governorship And House of Assembly Elections Tribunal holden in Bayelsa State for a trial de novo to be conducted by a different panel as constituted by the Hon. President of the Court of Appeal.

---

Other Citations: (2008)LCN/3050(CA)