Alhaji Sani Abubakar Danladi V. Barr. Nasiru Audu Dangiri & Ors (2014)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.S.C.

This appeal is against the judgment of the Court of Appeal, Yola Division on appeal against the judgment of the High Court of Taraba State which struck out appellant’s Originating Summons seeking to set aside his impeachment by the Taraba State House of Assembly.

Appellant was serving his second term as Deputy Governor of Taraba State.

On the 4th of September, 2012 members of the Taraba State House of Assembly laid before the Speaker of the said House, a notice of complaint of gross misconduct against the appellant. On the said 4th September, the complaint was served on the appellant for his reaction. Appellant duly prepared and forwarded his reply to the charges laid against him.

On 18th September, 2012 the House passed a Motion, pursuant to Section 188(4) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) to investigate the allegations of gross misconduct against the appellant. Consequent upon the resolution of the House to investigate the allegations against the appellant, the Speaker of the Taraba State House of Assembly requested the Acting Chief Judge of the State to constitute a 7-member panel to investigate the allegations pursuant to Section 188(5) of the Constitution (supra).

Appellant filed an Originating Summons and a motion restraining the Panel from investigating the allegations against him. Appellant alleged that in spire of his motion, the panel went ahead with the investigation, at the conclusion of which it submitted its report to the House. Appellant filed an amended Originating Summons to incorporate new issues relating to denial of fair hearing in the proceedings of the Panel.

In support of the amended Originating Summons, appellant filed a 34 paragraph affidavit. The Respondents filed a joint counter-affidavit of 27 paragraphs. The appellant filed a further affidavit of 14 paragraphs.

At the trial, learned counsel for the panel called five witnesses and closed his case. Appellant’s learned counsel called one witness and asked for four days adjournment on health grounds to enable the appellant call two more witnesses and testify on his behalf. He alleged that the application was denied and the appellant’s case was closed by the Panel. The Panel submitted its report which was adopted by the House and based on same; the House removed the appellant from office.

Appellant continued to prosecute his Amended Originating Summons to which the respondents had raised a preliminary objection challenging the procedure in the commencement of the suit.

At the conclusion of the trial, the learned trial Judge concluded inter alia:

“Since the plaintiff have (sic) commenced this case by way of an originating summons and not through the Writ of Summons, questions and allegations of denial of fair hearing which will certainly involve acrimonious and riotous dispute of fact it will be inappropriate on the part of this Court to proceed to resolve this complaint under the procedure chosen and adopted by the plaintiff. The objection raised by the defendants therefore has merit as the deficiencies highlighted in the case are fatal. The case is only good for striking out and it is hereby struck out.”

In his appeal to the Court of Appeal against the judgment, appellant formulated the following three issues from his grounds of appeal for determination in his brief of argument:

“1. Whether having regard to the fact that no order or relief is sought against either the Acting Chief Judge of Taraba State or the Taraba State House of Assembly their non-joinder is fatal to the plaintiff’s suit. (Ground 1 of the Notice and Grounds of Appeal).

2. Whether the action being commenced by originating summons is incompetent. (Ground 2 of the Notice and Grounds of Appeal).
3. Whether the Honourable learned trial Judge ought to have set aside the proceedings and the report of the Seven-man Panel which investigated the allegation of gross misconduct against the appellant for want of fair hearing. (Ground 3 of the Notice and Grounds of Appeal)”

The above issues were adopted by the respondents in their joint brief of argument.

The Court of Appeal resolved issues 1 and 3 against the appellant and issue 2 against the respondent. The Court below dismissed the appeal thus:

“In my humble view, notwithstanding the resolution of issue two in favour of the appellant, on a calm view of issues one and three, I hold that this appeal lacks merit and is dismissed. Parties to bear their respective costs.”

Appellant was aggrieved and appealed to this Court on eleven grounds from which he distilled the following five issues in his brief of argument:

“1. Whether having held that the mode of commencement of the action via Originating Summons was proper in the circumstance of this case, the Court of Appeal was right to have dismissed the appeal on the ground that the suit was improperly commenced. (Ground 1 and 2 of the appeal).

2. Whether the Honourable learned Justices of the Court below were right in striking out issues 1, 2, 4 and 5 of the appellant’s amended Originating Summons without giving the parties an opportunity to be heard. (Ground 3 of the Notice and Ground of Appeal).
3. Whether the Taraba State House of Assembly and the Acting Chief Judge of Taraba State were necessary parties to the Amended Originating Summons. (Grounds 4 & 5).
4. Whether the Court of Appeal was right in dismissing the appeal when the Court did not dismiss all the reliefs. (Ground) of the Amended Originating Summons and when the self-same Court held that the trial Court ought to have ordered pleadings and tried the Suit on pleadings. (Grounds 6, 7 and 8 of the Grounds of Appeal).
5. Whether the Court below was right when it held that the Panel was right to have proceeded with the investigation activities and the forwarding of the Report to the Taraba State House of Assembly despite being served with the Motion for Interlocutory Injunction on 28th September, 2012. (Grounds 9, 10 and 11 of the Grounds of Appeal)”.

In his brief of argument, learned Counsel for the Respondents reproduced and adopted the five issues framed by the appellant.

Arguing issue one in his brief, learned senior counsel for the appellant contended that the Court below having held that the trial Court was wrong to have struck out the suit as incompetent, was wrong to have dismissed the appeal as lacking in merit. Learned senior counsel made particular reference to relief No. 3 of the Amended Originating Summons in which the appellant complained of denial of right to fair hearing by the panel and reminded the Court that the said relief was not struck out by the Court below along with the other reliefs. Learned counsel reproduced the said relief No. 3 thus:

“3. A declaration that the proceedings and the report of the Defendants are in breach of Section 36(1) of the 1999 Constitution of the Federal Republic (as amended).”

He argued that though the Court resolved issues 1 and 3 against the appellant, issues 2 resolved in his favour was enough for the Court below to have allowed the appeal. He contended that the Court below should have relied on S.16 of the Court of Appeal Act to determine the issue of lack of fair hearing based on documentary evidence including the report of the panel which formed part of the record of the Court. He urged the Court to rely on its powers under S.22 of the Supreme Court Act of the Federation of Nigeria to decide the issue of denial of fair hearing.

In issue 2, learned counsel impugned the order made suo motu striking out reliefs 1, 2, 4 and 5 of the appellant’s Amended Originating Summons without giving the parties an opportunity to be heard. He maintained that reliefs 1, 2, 4 and 5 in the Amended Originating Summons did not in any way affect either the Taraba State House of Assembly or the Acting Chief Judge of the said State.

He relied on the dictum of Rhodes-Vivour, JSC in Blessing Toyin Omokuwajo v. Federal Republic Unprinted: Appeal No. SC.29/2011 in which judgment was delivered on 8th March, 2013 and submitted that the exceptions to the principle that a court should not decide issues it raised suo motu without affording those affected opportunity to be heard do not apply to the facts of this case.

In issue 3, learned Counsel reproduced the three reliefs sought by the appellant in the Amended Originating Summons and submitted that neither the Taraba State House of Assembly nor the Acting Chief Judge of Taraba State could be said to be a necessary party to the claims and declarations sought. On the question as to who is a necessary party, he relied on Panalpina World Transport Nig. Ltd. V. J. B. Olandeen International & Ors (2010) 19 NWLR (Pt. 1226) 1 at 23 paras. A-C. He argued that since no order is sought against either the Acting Chief Judge and/or the Taraba State House of Assembly, failure to join them as parties to the suit is not fatal, adding that non-joinder does not defeat the cause of action particularly in view of the third relief on denial of fair hearing which was not struck out.

He relied on Green v. Green (1987) 2 NSCC page 1115 at 1126 lines 34-41 to the effect that failure to join a party will not be fatal to the proceedings as the Court may determine the issues as far as those issues relate to the parties actually before the Court. He urged the Court to resolve the issue in favour of the appellant.

In issue 4, learned Counsel argued that it was an error for the court below to have agreed with the appellant that the trial Court ought not to have struck out the case but proceeded to dismiss the case. He complained that the court below held in one breath that the case was properly constituted and in the next breath proceeded to dismiss it.

In issue 5, it was argued for the appellant that the trial Court was wrong to have held that the panel was right to have proceeded with its investigation after it was served the Motion for Interlocutory Injunction on 5/9/2012 and that the Court below should have voided the proceedings. He relied on Vaswani Trading Company v. Savalakh & Company (1972) NSCC (Vol. 7) 692 at pages 694-699; Military Governor of Lagos State v. Ojukwu & Anor (1980) NSCC (Pt. 1) 304 at pages 309-310, 313-341, among others.

He urged the Court to resolve the issues in favour of the appellant and to, (a) allow the appeal; (b) set aside the judgment of the Court of Appeal delivered on 19th July, 2013 affirming the judgment of the trial Court; (c) set aside the judgment of the trial Court delivered on 19th March, 2013; (d) hear the Amended Originating Summons and (e) set aside the proceedings of the Panel, Exhibit HAG 25.

Dealing with issue 1 in his brief, learned counsel for the respondents complained of inconsistencies in the paragraphs of the appellant’s brief and argued that the appellant’s arguments on fair hearing and failure of the Court below to invoke its powers under S.16 of the Court of Appeal Act are unrelated to issue No. 1 and ought to be ignored.

He referred to the complaint in issue 1 to the effect that the Court below ought not to have dismissed the appeal after a finding that it was properly commenced by way of originating summons. He reproduced a portion of the judgment wherein the Court below had held:

“In my humble view, notwithstanding the resolution of issue two in favour of the appellant, on a calm view of issues 1 and 3 I hold this appeal lacks merit and is dismissed.”

Learned Counsel contended that the dismissal was based on a consideration of the merit of the case and not on the ground that it was commenced by way of originating summons. He urged the Court to resolve the issue against the appellant.

In issue 2, learned counsel said that counsel for the parties addressed the Court below before it struck out issues 1, 2, 4 and 5 of the appellant’s Amended Originating Summons. In support of this contention, he referred to Counsel for appellant’s argument at page 493 of the record to the effect that the trial court could have struck out only the reliefs against non-parties. He contended that the Court below, in striking out reliefs 1, 2, 4 and 5 did exactly what learned counsel for the applicant argued that the trial Court should have done.

He relied on Effiong & Ors v. CROSIEC & Anor (2010) 7 SCM 28 at 48 paras A-B wherein this Court held:

“As I indicated above, this principle that the Court ought not to raise an issue suo motu and decide upon it without hearing from the parties applies mainly to issue of fact. In some special circumstances the Court can raise an issue of law or jurisdiction suo motu and without hearing the parties decide upon it.”

He urged the Court to resolve issue 2 in favour of the respondents.

In issue 3, learned counsel for the respondents deemed it necessary to reproduce and did reproduce the Amended Originating Summons at pages 271-230 as well as Sections 188(2), 271 (4) and (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as a mended).

He referred to the principle of fair hearing in S.36(1) of the Constitution and contended that questions 1, 2, 4 and 5 of the Amended Originating Summons could not have been determined without the Taraba State House of Assembly and the Acting Chief Judge of Taraba State as parties. He relied on Panalpina World Transport Nig. Ltd v. J. B. Olandeen International & Ors (supra); Okonta v. Philips (2010) 18 NWLR (Pt. 1225) 320 at 326-327 paras E-A, among others.

Learned Counsel referred to the affidavit in support of the Originating Summons (as amended), particularly paragraphs 19-29 in answer to the complaint of denial of fair hearing. He said that the Court below held that the appellant could not prove that he was denied the opportunity to present his defence from the contents of Exhibit HAG 25 – the record of proceedings of the respondents.

He said that the appellant did not appeal against the said finding and so cannot raise same in this appeal. He relied on Ogunyade v. Dawodu (2007) 12 SCM (Pt. 2) 480 at 504-505; Nworah v. Nwabueze (2012) All FWLR (Pt. 613) 1833 para D. He urged the Court to resolve the issue against the appellant.

In issue 4, learned counsel referred to paragraph 7.1 at page 19 of the appellant’s brief and argued that the appellant misrepresented what the lower Court said. He referred to page 575 of the record and said that the Court below did not say: “I hold that His Lordship’s ought not to have ordered pleadings” and said that the lower Court actually at the said page, said that: “I hold that his Lordship in the lower Court ought to have ordered pleadings.” He urged the Court to resolve the issue against the appellant.

In issue 5, learned Counsel denied the assertion that the respondents ignored the motion for interlocutory injunction served on them and preceded with the investigation. He said that the truth is that the Court below said that the respondents were not served with the motion before it was withdrawn.

Learned Counsel reproduced page 164, 167, 173, 180-181, 589 and 590, 439-441 (in parts) of the record and argued that the motion was withdrawn and struck out on 5th October, 2012 contending that the lower Court could not have made any order based on same. He urged the Court to resolve issue 5 against the appellant. He urged the Court to dismiss the appeal on all the issues.

In what was headed “Appellant’s Reply Brief to the Respondents’ Brief of Argument”, learned senior counsel for the appellant opened up thus:

“First Issue: The Respondents’ counsel in his usual rude language has submitted at page 11 (paragraph 4.9) of his respondents’ brief of argument that: “The above submission of the Appellant is embarrassingly contrary to what the Court of Appeal did…” (underlining mine for emphasis).

With all respect due to the learned Silk, the expression “in his usual rude language” is not the language of learned Counsel in reference to a learned colleague, definitely not that of a Senior Advocate of Nigeria. It is rude. It is a gutter language better reserved for the lower breed without the law who operate in the motor parks. Even if the opposing Counsel is rude, and I see no evidence of rudeness in the respondents’ brief, the learned Silk should have raised the issue before the Court. He should not have succumbed to a temptation to be rude himself. In any case, he ought to realise that two wrongs do not make one right.

The learned senior counsel appeared to have been unaware of the essence of a reply brief. It is not for a repetition or improvement of arguments in the appellant’s brief. Appellant need not repeat issues joined either by emphasis or expatiation. See Ochemaje v. State (2008) 6-7 SC (Pt. 11) p.1.

My noble Lords, I have perused the record, and considered the arguments of learned Counsel in their respective briefs on the five issues submitted by the appellant for resolution and adopted by the respondents in their brief. The record shows, and the parties agreed, that the Court below struck out reliefs No. 1, 2, 4 and 5 contained in the appellant’s Amended Originating Summons, leaving the appellant with his relief No. 3. The said relief is hereby reproduced:

“3. A declaration that the proceedings and report of the defendants are in breach of Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).”

Issue No. 4 in this appeal, culled from Grounds 6, 7 and 8 of the Grounds of Appeal queries:

“4. Whether the Court of Appeal was right in dismissing the appeal when the Court did not dismiss all the reliefs (Grounds of the Amended Originating Summons…..)”

In effect, the complaint is that relief No. 3 in the Amended Originating Summons which was not dismissed along with reliefs No. 1, 2, 4 and 5 ought to have been determined or adequately determined by the Court below before it can rightly determine the appeal one way or the other.

My Lords, issue No. 4 herein, complaining of dismissal of the appeal notwithstanding the fact that relief No. 3 in the Amended Originating Summons was sustained by the Court of Appeal is a threshold issue. The issue here is whether or not the Court below, having struck out all the reliefs in the Amended Originating Summons except relief No. 3, resolved the said issue before dismissing the appeal. This issue runs as a golden thread from the trial Court, through the Court below to this Court.

In spite of apparent shortcoming in the appellant’ brief, the issue is live before this Court and being a threshold issue; it ought to be determined one way or the other before any further step is taken in the determination of the appeal.

In my view, once an issue joined by the parties is clear from the record of proceedings and the briefs filed on behalf of the parties, the court, particularly the apex court, in order to do substantial justice in the matter, should not restrict itself to the way, manner and style of presentation of Counsel’s argument in the determination of the issue. This is the case in this appeal.

The question calling for resolution is whether or not the Court below determined the question of denial of fair hearing and if it did, did it arrive at the correct conclusion

To start with, relief No. 3 in the Amended Originating Summons gave rise to issue No.3 before the Court below. Issue No.4 in this appeal, complaining of the dismissal of the appeal even though the court did not strike out relief No. 3 in the Amended Originating Summons is in the prevailing circumstances, a complaint that issue relating to relief No. 3 in the Originating Summons ought to have been resolved in favour of the appellant, or at all for that matter.

In my humble view, relief No.3 in the Amended Originating Summons is the crux of issue No.3 before the court below and before this Court, it is issue No. 4 on the dismissal of the appeal by the Court below even though the said Court struck out reliefs Nos. 1, 2, 4 and 5 of the Originating Summons, leaving issue No. 3, a complaint arising from the relief No. 3 in the Amended Originating Summons.

Again, the brief prepared and presented by the learned Silk for the appellant may not be a model but this Court cannot afford to shut its eyes to obvious matters which I have traced from the Amended Originating Summons, through the Court below to this Court. It will amount to a return to the era of technical justice not to resolve the issue of denial of fair hearing raised by reference to relief No. 3 in the Amended Originating Summons.

Now, how did the Court below approach the issue of denial of fair hearing At page 578 of the record, their Lordships of the Court below said:

“Issue three cannot be determined without a careful consideration as to what transpired before the panel and the High Court of Justice, Taraba State. This is because the entries in the report of the Panel (Exhibit “HAG 25″ and the records of the lower Court will be used to determine this issue.”

At page 579 of the record, the Court below held that:

“Originating Summons is usually heard on affidavit and documentary exhibits together with written addresses…”

First, I will take Exhibit HAG 25, the report of the panel. At page 581, the lower Court held that:

“Exhibit ‘HAG 25’ is the final report of the proceedings of the Panel tendered by the applicant in the Court below to prove lack of fair hearing…”

Having considered Exhibit HAG 25, the lower Court held that there was nothing therein to support the appellant’s complaint of denial of fair hearing. It held that:

“The appellant did not exhibit the entire proceedings of the Panel to support their (sic) argument.”

The Court below remarked that the appellant who tendered Exhibit ‘HAG 25′ discredited same as “incomplete and edited record of the Panel…” Also it is noteworthy that the respondent relied on the incomplete and edited report, their own report, to say that the appellant did not prove he was denied fair hearing. It is not enough, on the facts of this case, for the respondents merely to assert that the appellant was not denied fair hearing. They ought to have exhibited their report to show they complied with S.36(1) of the Constitution.

My Lords, Exhibit “HAG 25”, the incomplete and edited record of the Panel composed of the Respondents, is a document prepared by the respondents who submitted same to the House of Assembly upon which the House removed the appellant and the respondents who were in a position to produce same in response to the appellant’s allegation of denial of fair hearing withheld it knowing that the complete record would spell doom to their claim that they did not deny appellant fair hearing. See Section 149(d) of the Evidence Act. The respondents did not disclaim Exhibit HAG 25 but rather relied on the fact that it was incomplete and edited, to say that the appellant did not prove that he was denied fair hearing.

On the undisputed facts of this case, the respondent having denied the specific allegation of denial of fair hearing in general terms, ought to have tendered the complete and unedited report of their own proceedings to disprove the allegation of the appellant. Further, in the pursuit of substantial, rather than technical justice, the trial Court and the lower court ought to have ordered the respondents to produce the complete and unedited record of their proceedings, having in mind that the quest for justice cannot be reduced to a game of hide and seek. There is no suggestion that the complete and unedited record did not exist.

Between the appellant and the respondents who would gain by reliance on the Exhibit HAG 25 It is the respondents if they satisfied S.36(1) of the Constitution and not the appellant. The complete record was in issue and it is a fact within the knowledge of the respondents. see Section 142 of the Evidence Act. Based on the facts of this case, I am of the view that Exhibit HAG 25 was deliberately edited before or after it was submitted by the respondents to the House of Assembly and the editing was done with the sore aim to defeat the appellant’s case on denial of fair hearing.

It was not real justice for the Court below to dismiss the issue on the convenient ground that the contents of the exhibit did not support the appellant’s case. Exhibit HAG 25 did not present the complete picture of what transpired at the panel and the issue cannot be resolved without the complete records. See Nwana v. Federal Capital Dev. Authority (2007) 4 SC (Pt. 11) 1.

Next, the Court below held rightly in my humble view that “Originating Summons is usually heard on affidavit…” The affidavit evidence in the Amended Originating Summons consists of the appellant’s supporting affidavit and the counter-affidavit of the respondents.

Paragraphs 19-25 of the supporting affidavit are relevant and are hereunder reproduced:

“I9. The Seven man Panel was inaugurated on the 24th September, 2012 and they held their inaugural sitting on the 25th of September, 2012 during which sitting they ordered substituted service on me.

20. That on the 28th September, 2012 the defendants sat and I appeared under protest through my Counsel whom I only invited on phone and had not received full briefing from me.
21. That the defendants compelled me to continue which I did under protest through my Counsel and Counsel to the Panel called 5 witnesses.
22. That on the 3rd of October, 2012 I appeared through my Counsel under protest having filed and served the defendants with Summons in the case with a motion for injunction against all defendants.

22(a). That the defendants compelled my Counsel to commence my defence in my absence which he did under protest and called one witness after which my Counsel applied for an adjournment to enable me been (sic) on that day to come and testify alongside with two other witnesses who were indisposed to attend the sitting on that day.

23. That on the 3rd October, 2012 I was unable to attend sitting of the Panel on grounds of ill-health and two of my witnesses who were not in Jalingo had concluded arrangement to arrive Jalingo the same 3rd to testify before the Panel on the next sitting of the Panel.
24. That the defendants compelled my Counsel to open my defence in my absence which he did under protest and called one witness after which he asked for an adjournment to enable me attend the sitting and testify with my remaining two witnesses.
25. That upon the application for adjournment, the defendants unilaterally closed my case and proceeded to submit a report to the Taraba State House of Assembly which they used to remove me from office the following morning of 4th October, 2012.
26. That I was not allowed the opportunity to testify in my defence and call two other witnesses in my defence.
27. That I was not allowed full opportunity to prepare for my defence.
28. That I know as a fact that the defendants had three months within which to finish their investigation and submit their report from 24th September.
29. That I also know as a fact that on the 3rd day of October, 2012 when the defendants unilaterally closed my case, the defendants still had two months and three weeks to finish their investigation and submit their report.”

Paragraphs 3, 4, 14, 15, 16, 17, 18, 19, 20 and 26 of the Joint Counter-affidavit of the respondents are hereunder reproduced:

“3. That I was given a copy of the affidavit deposed by the plaintiff in this matter in support of the Originating Summons dated the 10th day of October, 2012.

4. That I carefully perused through the said affidavit with particular reference to paragraphs 17, 18, 19, 20, 21, 22, 22(a), 23, 24, 25, 26, 27 and 29.
5. That after I was appointed with other defendants, the Panel smoothly commenced sitting on the 25th day of September, 2012.
6. That on the 28th day of September the hearing commenced with the participation of all the parties including the plaintiff who appeared in person with his Counsel and stayed for hours until about 6pm when the sitting was adjourned to the 3rd of October which the plaintiff applied for to open and close his defence.
7. That on the 3rd day of October, the plaintiff called one witness in his defence.
8. hat Counsel to the panel called five witnesses together while Counsel to the plaintiff called a witness.
9. That the Panel never at any time unilaterally closed the case of the plaintiff.
10. That the hearing of the Panel naturally came to a close after the parties called their witnesses.
11. That I know as a fact that on the 3rd day of October the plaintiff was conspicuously absent from the Panel sitting without any tenable reason.
12. That I know as a fact that the allegation of breach of fair hearing of the plaintiff by the panel… is not true.
13. That the proceedings of the Panel was held in the public in an atmosphere conduce (sic) for all the parties to conduct their cases.
14. That myself and the other defendants are not in any position to say anything outside matters touching on the proceedings of the Panel or directly involving any of us or all of us collectively.”

In addition, and perhaps of a more substantial impact, is the “Plaintiff’s Further Affidavit in reply to the Defendants’ Counter-affidavit filed on 14th January, 2013”. Paragraphs 5 (in parts), 6, 8, 9, 11, 12 and 13 are relevant and are reproduced hereunder:

“5. ….. That I read paragraphs 15, 16, 17, 18, 19, 20 and 21 of the defendants’ Counter-affidavit and state that I never applied to upon (sic) and close my case on the 3rd of October, 2012 but to possibly open my case on the 3rd October, 2012. However I was absent on Panel on 3rd October, 2012 due to ill-health.

6. That I was informed by my lead Counsel Yunus Ustaz Usman, SAN on the 4th of October, 2012 in Abuja at about 2.45 pm which information I verify believe to be true as follows:

(a) That because of my ill-health condition he applied for an adjournment but the adjournment was refused by the defendants.

(b) That he called the only witness that was in Court on that day and applied for adjournment to enable me and two other witnesses to attend and give evidence before the Panel but the defendants sitting as a Panel refused the application and said it was an attempt by the plaintiff to delay the proceedings and unilaterally closed my case.

(c) That the defendants proceeded to submit their report to the Taraba State House of Assembly the next day in the early hours of 4th October, 2012 without giving me and two of my witnesses an opportunity to testify. Whereupon the Taraba State House of Assembly immediately commenced sitting the same morning and removed me from office.

8. That I know as a fact that Yunus Ustaz Usman, SAN who led a team of lawyers representing me before the Panel applied orally on the 28th September, 2012 to the Panel for the day to day record of proceedings of the Panel which application was officially recorded by the Panel.
9. That I know as a fact that immediately the Panel arose from its sitting on the 3rd of October, 2012 it became impossible to access any of the Members or Secretary to the Panel for the purpose of their record of proceedings as the Panel’s Secretariats (sic) was closed.
10. That I know as a fact that the Panel never made available the said record of proceedings to me.
11. That I have seen the incomplete and edited record of the Panel made available to the Taraba State House of Assembly and annexed to their Counter-affidavit in Suit No. TRSJ/80/2012. A copy of same is hereby annexed and marked Exhibit HAG 25.
12. That I know as a fact that the report of the defendants as a Panel to the Taraba State House of Assembly which is annexed as Exhibit HAG 25 does not reflect all that took place before the defendants as a Panel on the 3rd October, 2012.”

The Court below having found that the “entire record of proceedings of the Panel are not before this Court” and having stated the correct position that “Originating Summons are usually heard on affidavit and documentation exhibits….” ought to have resolved the issue on affidavit evidence before it.

Though the Court below held that the entire record of proceedings was not before it, it stated at page 582 of the record: “I shall now consider what transpired in the Court below.” With profound respect to their Lordships of the court below, this is a contradiction in terms. The only source from which to determine and consider what transpired before the Court below, that is the trial court which had to determine the validity vel non of the proceedings of the Panel, is the record of proceedings of the said panel, the same record the Court below said was not complete. Magicians do not sit to decide issues in our Courts or Panels.

In absence of the complete record of the Panel, neither the trial Court, the Court below nor this Court can determine that the appellant was not denied fair hearing. See Ediekpo & 2 Ors v. Osia & 3 Ors (2007) 3 SC (Pt. 1) page 1. There is no way the Court below, composed of human beings, could have determined without the complete record, what transpired in the Court below or in the Panel.

In pursuit of its duty to do substantial justice in the case, the effect of which transcends the parties therein and affects the entire voting population of Taraba State, the lower Court ought to have called for the complete record. In the alternative, the Court below should have complied with the principle it stated to the effect that Originating Summons is heard on affidavit. Rather than demand the complete record of the proceedings of the panel, this Court can, pursuant to its powers in Section 22 of the Supreme Court Act do what the Court below ought to have done but failed or neglected to do.

From the affidavit evidence reproduced above, the Panel was sworn in on the 24th day of September, 2012 from which date the Panel had three months to submit its report to the Taraba State House of Assembly. The Panel held its inaugural sitting the next day, 25th September, 2012. At the sitting of the panel on 28th September, 2012, applicant appeared by his Counsel under protest that his said Counsel had yet to receive full briefing from him.

On the said date and in spite of the protest of the appellant’s Counsel, the Panel took five witnesses called by its Counsel. On the next date, 3rd October, 2012, appellant was not in Court due to ill-health. His two witnesses were to arrive Jalingo the same 3rd October to testify the next day, 4th October, 2012. Appellant’s Counsel applied for adjournment based on the facts above but his application was denied and he was compelled to open the defence.

Learned Counsel called one witness and renewed his application for a continuance to call the remaining witnesses. Not only that the Panel denied the application for adjournment but unilaterally closed the appellant’s case and submitted its report to the Taraba State House of Assembly based upon which the House removed the appellant from office the morning of 4th October, 2012. Based on the above, the appellant complained that he was not given the opportunity to present his defence under section 36 of the Constitution (supra).

In the joint counter-affidavit of the respondents, it was averred that the appellant was before the Panel till about 6 pm “when the sitting adjourned to the 3rd of October which the plaintiff applied for to open and close his defence.”

In reaction to the specific allegation that the appellant was denied the opportunity to prepare and present his defence, the respondents stated:

“That the parties involved were given equal opportunity to present their cases and they all did as they desired.”

It was also averred as follows:

“That the Panel never at any time unilaterally closed the case of the plaintiff. That the hearing of the Panel naturally came to a close after the parties called their witnesses.”

Above, my Lords, is a general traverse which cannot meet the specific complaint of denial of fair hearing by the Panel which did not allow him an adjournment to testify in his defence and call two other witnesses who were outside the State Capital, the venue of the proceedings.

The respondents chose not to react to the appellant’s complaint that his Counsel’s application for adjournment on 3rd October was denied by the Panel or that the Panel compelled Counsel to proceed with the defence. They are deemed to have admitted the appellant’s averments. See Ekwealor v. Obasi (1990) 6 NWLR (Pt. 131); UBA Ltd v. Achoru (1990) 6 NWLR (Pt. 156) 254.

Respondents were evasive in their reaction to the appellant’s affidavit. It is in the nature of a person accused of stealing N100 whose only answer is that he did not steal N100. In pleadings, it is called negative pregnant. In my view, the facts averred by the appellant stand unchallenged and are deemed admitted by the respondents who could have disputed same effectively but chose to dance around the facts.

In a further affidavit in reply to the respondent’s counter-affidavit, the appellant not only repeated the facts in supporting affidavit but added more damaging facts relating to the conduct of the Panel. He averred that the Panel rose on 3rd October, 2012 and closed its Secretariat and this made it impossible for him to access any member of the Panel or its Secretary. He could not obtain a copy of the record and the incomplete and edited record he exhibited was made available to the Taraba State House of Assembly which it annexed to its counter-affidavit in Suit No. TRSJ/80/2012.

The incomplete and edited report is marked Exhibit HAG 25. There was no further counter-affidavit and again the respondents were deemed to have admitted the facts which they could challenge but chose not to do so, See Nwogu v. Njoku (1990) 3 NWLR (Pt. 140) 57.

While I am not concerned in this judgment with what happened before the Taraba State House of Assembly who are not parties to this appeal, I will like to mention in passing the eloquent silence of the respondents on the incompleteness and edition of their report. Exhibit HAG 25 is a clear admission that the report they submitted to the Taraba State House of Assembly on 3rd October, 2012 upon which the House removed the appellant the next morning was incomplete and edited, or that it was edited after its submission and the respondents acquiesced in the fraud since they did not disclaim the incomplete record.

From the totality of the affidavit evidence, if not also by inference from Exhibit HAG 25, the incomplete and edited record which was not disclaimed by its authors, the respondents, the proceedings of the respondents were conducted in gross violation of the appellant’s right under S. 36(1) of the Constitution (supra). It provides:

“S.36(1). In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitle to a fair hearing within a reasonable time. In a Court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”

In my view, the phrase “within a reasonable time” implies that the time for the determination of the matter should not be too short or too long, depending on the nature and facts of the case. Appellant said that he contacted his Counsel by phone and had not briefed him fully and properly and this was not disputed by the respondents. On the undisputed facts the appellant was denied the opportunity to prepare his defence or present his case before the panel composed of the respondents.

The respondents had the privilege to decide the fate of the appellant. They acted in ignorance of the fact that the system that bestowed the privilege on them to recommend the removal of the appellant also exacts tolls for the privilege so bestowed.

My noble Lords, the impact of what happened in the Panel on the country’s impeachment jurisprudence is too alarming to contemplate.

Here is a Panel that had three whore months to investigate the serious allegations of gross misconduct against the appellant, a Deputy Governor of the State. For no apparent reason for the indecent haste, the Panel completed its sitting and prepared and submitted its report to the Taraba State House of Assembly between the 28th day of September 2012 and the 3rd day of October, 2012 – a period of six days inclusive of the first and last dates.

It is said that justice delayed is justice denied. The reverse is equally disturbing. Justice rushed is a travesty of justice and a threat to the fabric that binds civilized society together. As if the rushed justice was not bad enough, the panel presented to the Taraba House of Assembly an incomplete and edited report upon which the appellant was removed on the 4th October, 2012, the day following the submission of the report. At least, the respondents did not disclaim the incomplete and edited report.

From the undisputed facts of this case, one has the inevitable but disturbing impression that the Panel composed of the respondents was a mere sham and that the removal of the appellant from office was a done deal as it were. In my view, the respondents, in their purported investigation of the allegation made against the appellant, merely played out a script previously prepared and handed over to the panel.

The most disturbing aspect of the Kangaroo panel is that it was headed by a man described in the processes before this Court as a barrister – one Barrister Nasiru Audu Dangiri. The third member of the Panel was also described as a barrister – one Barrister R. J. Ikitausai. If these two men are actually members of the noble profession to which your Lordships and my humble self, by the Grace of God have the honour to belong, and not people who, for self-aggrandisement adopted the nomenclature “barrister”, the harm they have deliberately perpetrated in this matter is so serious that the attention of the Disciplinary Committee of the Bar ought to be drawn to it.

Impeachment of elected politicians is a very serious matter and should not be conducted as a matter of course. The purpose is to set aside the will of the electorate as expressed at the polls. It has implication for the impeached as well as the electorate who bestowed the mandate on him. Whether it takes one day or the three months prescribed by law, the rules of due process must be strictly followed. If the matter is left at the whims and caprices of politicians and their panels, a State or even the entire country could be reduced to the status of a banana republic. The procedure for impeachment and removal must be guarded jealously by the Courts.

In conclusion, based on the undisputed facts in the affidavits of the appellant, I am of the considered view that the Court below ought to have resolved the issue of denial of fair hearing against the respondents and in favour of the appellant. The Court below ought to have declared the entire proceedings of the panel made up of the respondent null and void and of no legal or factual effect whatsoever.

In consequence, I allow the appeal and vacate the judgment of the Court of Appeal. I hereby order that the entire proceedings of the Panel that purported, at the instance of the Taraba State House of Assembly, to investigate the allegation of gross misconduct made by the House against the appellant, the Deputy Governor of Taraba State, up to and including the incomplete and edited report relied on in removing the appellant by the House, be, and is hereby, declared null and void and of no legal or factual consequence whatsoever.

In effect, at all material times, the appellant, Alhaji Sani Abubakar Danladi remained and still remains the Deputy Governor of Taraba State and he is to resume his interrupted duties of his office forthwith.

Parties are to bear their respective costs.

Appeal allowed. Proceedings and report of the panel declared null, void and of no effect. Appellant to resume his duties forthwith as the Deputy Governor of Taraba State.

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SC.416/2013