Chief Matthew Atamah & Anor V. Ereghan S. Ebosele & Ors (2008)

LawGlobal-Hub Lead Judgment Report

GEORGE OLADEINDE SHOREMI, J.C.A.

On 14th May, 2007 the Appellant filed a petition against the Respondent at the Governorship/Legislative Houses Election Tribunal Benin City challenging the return of the 1st Respondent as the winner of the House of Assembly election for Esan Central Constituency held on 14th April, 2007.

Issues were joined in the petition. The appellant’s application for leave to call additional witnesses was refused by the lower tribunal on 17/10/07. The appellants duly appealed against the decision on 27/10/07. After hearing the witnesses called by the petitioner and after consideration of the written addresses filed by counsel on both sides the tribunal on 22/1/8 delivered its judgment in which it dismissed the appellant’s petition.

Dissatisfied with the judgment the appellant on 8th February 2008 filed their notice of appeal against the judgment see page 587-590 of the record. When the appeal came up for hearing Mr. Obamogie of the learned counsel to the appellant referred to his appeals which were consolidated by the order of this court on 26/5/08. He said before then he filed two appellants brief. The 1st Appellant brief is dated 10/3/08 and filed on 11/3/08. The 2nd Appellants brief is dated 11/3/08 and filed the same day. He also reacted to the entire Respondent brief by filing Reply briefs.

The 1st Reply Brief is his reaction to the 2nd-5th Respondents brief which was dated and filed on 2/6/08 while the Reply to the 1st & 2nd Respondents was also dated and filed on 5/6/08. He adopted and relied on all his briefs and reply brief. He urged the court to allow the appeal as the issue of fair hearing is raised in the 1st Appeal when the tribunal failed to allow the Appellant to call additional Evidence vide his application at page 337 of the record of proceedings which was argued before the pre-hearing season. He referred to the case of ABUBAKAR V. YAR ADUA (2008) 4 NWLR Pt. 1078 page 465 at 535 E-G.

Mr. Orbih – for the 1st & 2nd Respondents adopted and relied on his brief dated 2/6/08 and filed the same day and he urged the court to dismiss the appeal. He further showed that the appellants application to call additional witnesses amounts to amending the petition in that the deposition were at variance with the petition. Furthermore all the documents which the Appellant tried to introduce by his application for subpoena which was refused by the tribunal were subsequently tendered and admitted from the bar. He submitted that the Appellant can not reprobate and approbate He said there was no miscarriage of justice and urged the court to dismiss the appeal.

Chief Uzamere for the 3rd, 4th & 5th Respondent adopted his brief of argument dated and filed on 28/5/08. The brief was filed after consolidation. He adopted the submission of the learned counsel for the 1st & 2nd Respondent’s argument. He said that the appellants were given every opportunity to fair hearing. He urged the court to hold that the appeal lacks merit.

Let me deal with the notice of appeal dated 26th October, 2007. The ground of appeal reads –

“(1) The Honourable Tribunal erred in law in refusing the petitioners application for leave to call additional witness in support of their petition.

Particulars of Error

(a) Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 guarantees the petitioner right of fair hearing.

(b) The deposition of the additional witnesses were exhibited with the petitioners application filed on 19th September, 2007.

(c) Neither the Electoral Act 2006 nor the rules of Honourable Tribunal set a time limit for filing deposition.

(d) The provision of the Constitution of the Federal Republic of Nigeria 1999 Electoral Act 2006 and the Rule of the Tribunal override the Practice Direction.

In the main appeal, the notice of appeal is contained on pages 587-589 Ground 5 of the grounds of appeal reads thus –

“The Tribunal erred in law when it deliberately breached the Appellants right to fair hearing enshrined in 8.36(1) of the Constitution of the Federal Republic of Nigeria 1999 in (severed)sic during the trial of the petition

Particulars of Error

(a) The tribunal refused to accede to the petitioner’s application for subpoena duces tecum to be issued and served on the 3rd & 4th Respondents to produced documents in their custody before the tribunal.

(b) The appellants were denied the right to call witnesses in proof of their petition.

I hold the view that the interlocutory appeal had been embedded in the main appeal as the only ground of appeal in the interlocutory appeal is made Ground 5 in the main appeal therefore a consideration of Ground 5 of the main appeal will he considered along with the interlocutory appeal.

The ruling of the tribunal complained of in the preliminary appeal is contained on pages 375-379 of the Record of Proceedings.

The final judgment of the Tribunal is at pages 537-583. The concluding part of the said judgment reads thus I quote-

“We find that corrupt practices were proved in the following places: ward 7 Uzogholo Primary School Center, ward 10 unit 2. Ward 8 Idunwele Primary School. The scores of the Petitioner and the 1st Respondent in these places are accordingly deducted from the total votes credited to them. These votes are:-

Ward 7 Uzogholo unit AC 266 PDP 593

Ward 10 unit 2 AC 17 PDP 433

Ward 8 Idunwela AC 212 PDP 296

Total AC 495 PDP 1,322

In conclusion and for the reasons given in this judgment, the tribunal holds as follows:

1. The votes scored by the 1st Petitioner be and are hereby reduced thus:-

4,353-495 = 3858.

2. The votes scored by the 1st Respondents are and are hereby reduced thus:-

25705-1322 = 24383.

3. The ground of non-compliance with the provisions of the Act was not proved and is hereby dismissed.
4. The ground of invalidity of the election on account of corrupt practices succeeds only in part and in the areas specifically stated in this judgment.
5. The ground that the 1st Respondent was not elected by a majority of lawful votes cast fails and is hereby dismissed.
6. The majority votes of the 1st Respondents be and is hereby reduced from 21,352 to 20,525.
7. The return of the 3rd-5th Respondents declaring the 1st Respondent as the duly elected candidate to the Edo State House of Assembly for Esan Central Constituency be and is hereby upheld.
8. This petition fails and is hereby dismissed”.

The notice and grounds of appeal are contained on pages 587-590 of the record. The grounds of appeal without particulars are set out hereunder:

“1. The Trial Tribunal erred in law when it held that the petitioners’ pleading did not support exhibits 30(1-199) – 39(10411) and the allegations of corrupt practices/non-compliance with the Election Act 2006 made therefrom.

2. The Tribunal erred in law when it failed to follow the binding decision of the Court of Appeal in Terab v. Lawan (1992) 3 NWLR (part 231)569 at 592, paragraphs B-E to the effect that no oral evidence is required to explain statutory documents.
3. The Tribunal erred in law when it failed to consider the issue of inflation/allocation of votes by the 3rd-5th Respondents in breach of the Electoral Act, 2006.
4. The trial Tribunal erred in law and breached the petitioners’ right to fair bearing when it based its judgment on the petitioners’ original petition dated 10th May, 2007 instead of the Amended petition dated 2nd August, 2007 filed with leave of Tribunal granted on 6th September, 2007.
5. The trial tribunal erred in law when it deliberately breached the Appellants’ right to fair hearing enshrined in section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 in several responds during the trial of the petition.
6. The trial tribunal erred in law when it failed to evaluate satisfactorily oral and documentary evidence adduced before it and thereby arrived at wrong conclusions.
7. The judgment is against the weight of evidence.

In the Appellants brief filed on 11/3/08 4 issues were distilled. The 4 issues are as follows –

1. Whether or not the trial tribunal was right when it held that the Appellants’ pleading did not support the allegations of corrupt practices/non – compliance with the Electoral Act, 2006 and exhibits 30 (1-199) to 39 (1-411).
2. Whether statutory documents such as voters registers (i.e. exhibits 30(1-1999) to 39 (1-411) and result sheets (i.e. exhibits 7 (1-10) -27 require oral evidence to explain their contents.
3. Whether or not the trial tribunal satisfactorily evaluated the oral and documentary evidence adduced before it in arriving at its judgment.
4. Whether or not the trial tribunal did not breach the appellants’ right to fair hearing guaranteed by section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999.

Reliefs sought by the petitioners in the amended petition at pages 275-290 reads as follows:

(1) An order invalidating the 25705 votes or such part of the votes allocated to the 1st & 2nd Respondents by the 3rd, 4th & 5th Respondents as may be found to be invalid in Esan Central Constituency election held on 14/4/2007 on the ground of corrupt practices or-non compliance with the provisions of the Electoral Act 2006.

(2) An order declaring the petitioner as validly elected and returned as the winners of the Esan Central Constituency election of Edo State House of Assembly conducted on 14/4/07 having scored the highest number of lawful votes of the total valid votes cast in the said election after removing the invalid votes allegedly scored or allocated to the 1st & 2nd Respondents.

I have earlier on quoted the concluding part of the judgment of the tribunal.

On issue 1 whether or not the trial tribunal was right when it held that the Appellants pleading did not support the allegation of corrupt practices/non compliance with the Electoral Act 2006 and exhibits 30(1-199) 4 to 39(1- 411). In his brief of argument the learned counsel argued that it is now beyond question that the main function of pleading is to ascertain with as much certainty as possible the various matter actually in dispute among the parties and in which there is argument between them. He cited the following cases to buttress his argument MORINATU OCHUKA V. KASIMU & ANOR (1968) NMLR 28 at 31; ADEREMI V. ADEDIRE (1966) NMLR 398. He argued that a party is required to plead only facts upon which he relies and not evidence by which such facts are to be established citing AJADI V. AJIBOLA (2004) 16 NWLR Part 898 91 at 203-204. He argued that the Appellants specifically pleaded the voters register admitted as exhibits 30(1-199) -39(1-411) in paragraph 17(a) of their amended petition dated 2007 and deemed filed on 6/9/07. He went further to enumerate all the paragraphs of the petition showing the allegation pleaded. He therefore urged the court to hold that the tribunal erred when it failed to consider the darning allegations set out in the table at pages (sic 522-535) it is at 500-513 of the record of appeal as the issues raised therein were covered by the pleadings.

The 1st & 2nd Respondents in their brief of argument recouched issue one to read.

“whether the Appellants pleading in their petition were capable of supporting the various allegation which they dug out from the evidence (both oral and documentary) led by then at the trial of this petition”.

The issue as couched means the same as that of the Petitioner. Learned counsel argued that by the provisions of paragraph 50 of the 1st Schedule to the Electoral Act 2006 the practice and procedure of the tribunal in relation to an Election petition shall be as nearly as possible similar to the practice and procedure of the Federal High Court. He then referred to Order 26 R 4(1) of the Rules of the Federal High Court. He argued that it is trite law that the main function of pleading is to focus with much certainty as far as possible the matters actually in dispute between the parties without the pleading of evidence. Pleading allow for justice and effective determination of a suit or claim based on disputed facts.

He cited SOSANYA V. ONADEKO (2000) 11 NWLR (PT 677) 39 at 55-56. The Respondent submitted that the Petitioners led no solid of evidence on their allegation contained in paragraph 17(a) 18(ii) and (v) of the amended petition. He argued that the Appellants their pleadings during the hearing of the petition. He submitted that multiple voting and voting by under aged voters are not the type of allegation that can be proved solely by looking at documents.

The 3rd-5th Respondents adopted the argument of the court to the 1st & 2nd Respondents. He then urged the court to resolve the 1st issue against the Appellants.

It is pertinent to note that at pages 576 the tribunal had this to say in relation to the issue raised by the Appellants. For ease of reference let me quote-

The tribunal now moves to consider allegations of non compliance with the provisions of the Act. Learned Counsel for the Petitioners devoted a lot of pages in their address to allegations of multiple voting: The submissions including tabulations are on pages 3 to 20 of their address and are based on exhibits 30 (1-199) to exhibits 39(1-411). The tabulations are under the following columns; unit, exhibit, number of registered voters, multiple registrations, multiple accreditations, list of multiple accreditations/voting and other comments.

The last column, namely “list of multiple accreditation/voting and other comments” constitute the conclusion of the petitioners’ as to the conduct of the election in the respective units, clearly a lot of work went into the compilation.

These conclusions are very damning. Sample conclusions include findings of multiple voting, under-aged voting, shadows in place of pictures, voters with no name, infant voters, voter with a picture showing just a chair and voters without pictures.

A common thread ran through these allegations and conclusions namely, they were not specifically pleaded. The Respondents were therefore not given any opportunity to respond to them. The 3rd-5th Respondents are the ones directly indicated by the allegations yet no question on the matters were put to their witness, DW6, Indeed these exhibits were brought in at the end of the trial when both parties had closed their case. It was as if the petitioners did not intend them to be part of their case. The rules of pleadings are founded on the rules of natural Justice. A party coming to court must know beforehand what case he is coming to meet; His adversary cannot spring surprises on him. It is not open to a party to depart from his pleading and put up an entirely new case at the hearing nor can a court depart from the case as pleaded by the parties, see (1) NJOKU V. EKE (1973) 5 SC 293; (2) AWARA & ORS. V. ALALIBO & ORS (2002) 18 NWLR (PT 799) SC 484.

In a long line of cases, the relationship between pleadings and evidence has been graphically illustrated thus:-

(1) The two most significant aspects of a claim are pleadings and the evidence in proof thereof

(2) Where evidence is not aligned with pleadings, it would serve no useful purpose to the claimant See AWUSE V. ODILI supra CBN V. JIDDA supra UFELE V. UMEH (1995) 5 NWLR (PT 3903) 114.

The Petitioners themselves state that paragraphs 18(1)-(xxvi) of their petition contains the alleged acts of corrupt practices or breaches of the ELECTORAL ACT 2006 “before, during and after the elections of 14th April, 2007”. See pages 7-9 of the petition. That is the case they brought to tribunal, None of the allegations made on pages 3-12 of their address featured in the said paragraphs 18(1)-(xxvi).

Parties are bound by their pleadings; Evidence (and submissions) which are at variance with the averment in the pleadings must be disregarded by the court whether objected to or not. See again:- (1) AWARA V. ALALIBO supra

(2) N.I.P.C. V. THE THOMPSON ORGANISATION LTD (1969) 1 ANLR 138.

In the circumstance, Exhibits 301(1-99) to 39 (1-411) go to no issue and are to be disregarded.

The Respondents argued that multiple voting and voting by under aged voters are not the type of allegations that can be proved by looking at the documents.

I agree with the submission of the learned counsel to the Respondent that address of counsel no matter how beautifully presented can not take the place of evidence. See OBASANJO V. BUSINESS VENTURE LTD. (2000) FWLR Part 10 at 1722 Where the Petitioner alleged that the 1st & 2nd Respondent did not score a particular number of votes alleged to have been awarded to them they simply meant that the figures were falsified. For the pleadings to be meaningful, the petitioner ought to have two sets of results, the real score of the 1st & 2nd Respondents as well as the total scores OJO V. ESOHE (1999) 5 NWLR (Pt. 603) 444 at 452 F-H.

When evidence is not led in support of pleadings the matter or Issue pleaded are deemed to be abandoned and trial court is therefore incompetent to make finding or order in respect of such matter or fact though pleaded but abandoned. DIKA & ORS V. ERISI (1988) 5 SCNJ 208 at 219; In SHELL B.P. V. ABADI (1974) 1 SC 23 the Supreme Court held that a Plaintiff must call evidence to support its pleadings and evidence which is in fact adduced which is contrary to his pleadings should never be admitted. See also NJOKU V. ENE 19735 sc 293; ABUBAKAR V. JOSEPH 2008 All FWLR Pt. 452 1065 at 1085.

In this petition I hold that there is no evidence I mean direct evidence of those who observed the non compliance. In areas where such were established the lower tribunal had rightly done the right thing.

From the circumstances of this petition the 1st issue is answered in the negative and in favour of the Respondents.

Issue 2 as couched by the Appellants is whether statutory document such as voters registers that is (Exhibits 30(1-199) to 39(1-411) and result sheets Exhibit 7(1-10) 27 require oral evidence to explain the voters.

In his argument the Appellant argued that it is not necessary to call oral evidence to explain statutory documents citing the case of TERAB – LAWAN (1992) 3 NWLR (Pt. 231) 569 at 592.

He argued that the said exhibits being relevant documents on pleaded facts ought to have been given the consideration by the lower court. The Respondent in this issue though couched in a different manner argued that the Appellant in their final address rose the following allegation multiple voting/accreditation flawed voter’s register/multiple registrations, under aged voting, voting by non-human beings/unidentifiable persons, over balloting and unaccounted for ballot papers. The Respondent said that their allegations were not pleaded by the Appellant and no evidence was led to prove the allegations. They argued that it therefore goes to no issue.

They cited the case of AWUSE V. ODILI (2005) FWLR Pt. 261 248 at 257. They then urged this court to resolve the issue against the appellant. In SHELL B.P. V. ABADI (1974) 1 SC 23 the Supreme Court held that A Plaintiff must call evidence to support its pleadings and evidence which is in fact adduced which is contrary to his pleadings should never be admitted. See also NJOKU V. EKE 1973 5 SC 293; ABUBAKAR V. JOSEPH 2008 All FWLR Pt. 4521065 at 1085. The argument of the Appellants can not hold water. I therefore resolve the issue against the Appellant therefore Ground 2 of the appeal also fails.

The 3rd Issue to be decided is whether or not the Honourable Trial Tribunal satisfactorily evaluated the oral and documentary evidence adduced before arriving at the conclusion.

The Appellant argued that this is within the province of the trial court relying on AMAJUOH V. ARO (2006) 4 NWLR Part 971, 481 at 501 and AKUNIYILU V. EDJIDIKE (1996) 5 NWLR (part 449) 381 at page 405 paragraph F. The Appellant submitted that where the evaluation of available evidence is not satisfactory an appellate court will be entitled to intervene. See BASIL V. FAJEBE (2001) 21 WRN 58 AT 75-76. Let me say here that this is the true position of numerous decided cases including DOSUNUMI V. DEOLA (2002) 36 WRN 111 at 141 and NOFAJI V. ODOFIN. The Appellant also enumerated all the exhibits that seem to them to have been over looked by the trial Tribunal and the Appellant urged this court to resolve Issue 3 in favour of the Appellant.

The Respondent on their own agreed with the position of law as to the right of the Tribunal to evaluate oral and documentary evidence to arrive at their conclusion but do not agree that the trial court in this case failed to evaluate the evidence. The petitioner in this case did not plead this set of result let alone proving the one that is alleged genuine. Therefore the allegation about falsification fails.

I have carefully considered the argument of the Appellants in this case. If the evidence as proffered by the Appellants were not evaluated by lower court. How come that the tribunal at the end of the trial hold that there was no election at Uzogholo Primary School. I have set out part of the judgment of the tribunal I also perused the Record of Proceedings I can not see where the allegations of multiple voting and other alleged irregularities on the said exhibits were proved In BUHARI V. INEC Supra, it was held that 100% vote for a party at a polling unit cannot be regarded as an act of non-compliance.

It is the general principle of law that where the findings of a lower court are not perverse the appellate court will not set that judgment aside.

The burden is always on a party who asserts the existence of a claim to prove same and must fail, if he does not succeed in establishing the claim See COROHOW V. ZARINA delivered by the Supreme Court on 28th Feb. 1986 and reported in Appellate courts Landmark case Vol. 4 page 96 para. D-E. I see no reason why I should interfere with the findings of the Tribunal as their decision had not occasioned any miscarriage of justice or a serious violation of the law.

Issue No.3 grounds 3, 6 and 7 also fail and Issue 3 is therefore resolved against the Appellant.

Let me at this stage consider the Interlocutory appeal with Issue No.4 raised from Grounds 4 & 5.

Issue No.4 as couched by the Appellant seems not to be complete therefore vague. It reads:-

“Whether or not the trial tribunal did not breach the Appellant right of fair hearing guaranteed by S.36 (1) of the Constitution of the Federal Republic of Nigeria”.

The complaint of the Appellant is that the tribunal ignored the amended petition as contained at page 520 lines 24-27 of Record or Appeal but went on to base its judgment on the original petition which had ceased to be relevant process before it. They said due to this fundamental error the lower tribunal failed to consider the appellants challenges of the totality of voters credited to the 1st & 2nd Respondents. Again in the course of the trial the Appellant applied for subpoena duces tecum to be issued and served on the Respondent to produce vital document namely the voters register and election result. He further argued that the Practice Direction does not prohibit application for subpoena duces tecum to be applied for at any stage. They argued that the lower tribunal clearly shut the door of justice against the Appellant.

The Respondents agreed with the Petitioner that fair hearing is not only a common law right, it is a constitutional right guaranteed by S.36(1) of the Constitution as set out and in the case of EZENUAJI V. UNIVERSITY OF NIGERIA (2006) 3 NWLR (PT.976) 325 AT 339 paragraph G. There is no doubt that a breach of fundamental right provisions of the Constitution renders any act subsequent to such a breach a nullity. See JOPAR LTD. V. AFRIBANK (Nig. Ltd.) (2003) 8 NWLR (pt. 822 at 290).

I am not impressed by the argument of the Petitioner that the tribunal did not base its judgment on the amended petition otherwise how did the tribunal arrive at a conclusion then. There is virtually no difference between the original petition and the amended petition. Hence the tribunal held as follows I quote –

“In conclusion and for the reasons given in his judgment the Tribunal holds as follows:

(1) The votes scored by the Petitioner are hereby reduced the 4,353- 495 = 3,858

(2) The votes scored by the 1st & 2nd Respondents by and are hereby reduced those 25,705 – 1,323 = 24,383

(3) The ground of non-compliance with the provisions of the Act was not proved and it is hereby dismissed)

To me this aspect of the decision was the amended petition therefore I can not see any miscarriage of justice the finding from the evidence adduced. The error if there is any did not in fact occasion a miscarriage of justice and or substantially affected the result of the decision. See CANKARA V. COP KATSINA STATE (2003) FWLR Part 184 page 214 at 223 -224.

The Appellant had all the time in the world to do whatever preliminary steps to be taken and nobody including the Tribunal shall be blamed. Further more documents sought to be tendered through subpoena were tendered from the bar, Laws and regulations are meant to be obeyed and they should be obeyed to the letter.

The Interlocutory appeal of the Appellant posed one issue and it reads:

“Whether or not the tribunal did not breach the Appellants right to fair hearing guaranteed by Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 by its refusal to allow the Appellants to call additional evidence”.

Issue of Fundamental Human Right have been discussed above. The Appellant brief and the Interlocutory appeal have been considered by me. I agree with the learned counsel to the Respondent that the reason given by the Appellants’ counsel for failing to file the deposition in the 1st place was and can hardly be faulted. All the deposition was available at the time the petition was filed in May.

It took the Appellant 4 months to make up in their minds is to me time wasting when time is of the essence see OGU V. DUKO (2003) 33 WRN 14 at 53 – para. 35-40.

It is settled law that the principle of fair hearing is to all procedure and proceedings like jurisdiction the right to fair hearing is fundamental to all courts procedure and proceedings like jurisdiction the right to fair hearing is fundamental. The intention of the Election Tribunal and Court Practice Direction are available to the court in balancing the scale of justice between the parties is that in respect of their claims.

See ABUBAKAR V. JOSEPH (2008) 34 NSCQR 1057 AT 1087. justice delayed is justice denied.

I have mentioned that the application in question did not come up till after 4 months when the trial had begun. Paragraph 6 of the Election Tribunal and Court Practice Directions stated as follows –

“6(1) No motion shall be moved. All motions shall come up at the preliminary session except in extreme circumstance with leave of Tribunal or Court… It is settled law that where legislation lays down a procedure for doing a thing should be no order method of doing it. In OKEREKE V. YARADUA (2008) All FWLR Pt 430 626 at 648 B-D. under the Practice Direction no motion shall be moved. All motions shall come up at the pre-hearing session except in exceptional circumstance. The tribunal without adherence to this Rule/Practice Direction went ahead to consider the application and gave a well considered ruling thereon. The test of fairness in the court below is the impression of a reasonable person present at the trial while in appellate proceedings is whether having regard to the rules of court and Law justice has been done in the case. See OTAPO V. SUNMER & ORS Vol. 4 Appellate court landmark case page 250 at 274 para. C-D.

The duty of the court is to create atmosphere of fair hearing. It can not compel parties to take advantage of same. See INAKOJU V. ADELEKE Constitutional Law classicus VO.3 page 540 where the court held at page 627 and 743 I quote-

“I said it in the past and I will say it here again that the duty of the court, trial and appellate, is 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 a 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. This is not fair to the court, and counsel must not instigate his client to accuse the court of denying him fair hearing (pg. 627)

In its nature, a party who has or had every opportunity to present his case before the court and who fails to do so, cannot be heard to complain of breach of his right of fair hearing. See also the case of Ekiyor & anor v. Chief Bomor & anor. It is said that fair hearing is like a sacred cow, but it cannot be invoked, where a litigant is just crying wolf where infact, there is none (as in the instant case leading to this appeal). Of course, and this is also settled, a party who has failed or neglected to submit his case for consideration, cannot complain of a denial of fair hearing. See the cases of Oyeyipo v. Oyinloye – per Karibi- Whyte, JSC, and recently, Alhaji Parma v. Oceanic Bank International Nig. Ltd. In the recent case of Magna Maritime Services Ltd. & anor v. Oteju & anor – per Tobi, JSC and – per Edozie, JSC who referred to the case of Okoye & ors v. Nigerian Construction & Furniture Co. Ltd & ors, my two learned brothers, dealt with the issue of fair hearing. Therefore, a party or parties given an opportunity to be heard and who is/was aware of proceeding going on in the court and not taking any steps required by the law or the Rules of that court, cannot be heard to complain of denial of fair hearing. (pg. 743).

From the foregoing I dismiss the interlocutory appeal as unmeritorious. I also resolve Issue No 4 against the Appellants. The judgment of the Governorship/Legislative Houses Election Tribunal 2 Benin City delivered on 27/1/08 is hereby affirmed. The Appellants shall pay N50, 000 costs to 1st & 2nd respondents.

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Other Citations: (2008)LCN/2976(CA)