Chief Sergeant C. Awuse V. Dr. Peter Odili (2005)
LawGlobal-Hub Lead Judgment Report
SALAMI, J.C.A.
In this interlocutory appeal, the ruling of the National Assembly/Governorship and Legislative Houses Election Petition Tribunal, sitting in Port Harcourt, Rivers State, delivered on 16th February, 2004, wherein the tribunal granted first respondent enlargement of time within which to file reply to the petition is being contested. Upon service of the petition on the first respondent, he duly entered appearance. Thereafter, he challenged the competence of the petition and therefore, failed or neglected to reply to the petition pending the determination of notice of his intention to rely on a preliminary objection by the Supreme Court, even though there is no right of appeal to that court.
On determination of the appeal to the Supreme Court, the first respondent filed his reply to the petition on 4th December, 2003, as well as an application for extension of time to file the said reply.
The petitioner opposed the application for enlargement of time by filing a motion for striking out of the first respondent’s reply already filed. The two applications were taken together.
On 16th February, 2004, the tribunal in its reserved and considered ruling dismissed the petitioner’s application and granted first respondent’s application for extension of time and deemed the reply already filed as properly filed and served on all the parties to the proceedings.
Being unhappy and dissatisfied with the ruling, the petitioner filed the instant appeal resting on three grounds of appeal.
The petitioner (hereinafter referred to as the appellant) formulated the following two issues as calling for determination in the instant appeal.
“(a) whether the tribunal had the competence to extend the time for filing a reply to a petition.
(b) assuming without conceding that the tribunal had competence to extend time, whether their Lordships had exercised the discretion properly.
Issue (a) was related to grounds one and three of the grounds of appeal while issue (b) derived from the remaining ground two.
In my respectful opinion, the only issue calling for determination in this interlocutory appeal is the competence of the appeal itself. In this connection, at the hearing of the appeal, we directed the attention of the learned Senior Counsel appearing for both parties to the provisions of section 241(2)(a) of the Constitution of Federal Republic of Nigeria, 1999, and invited counsel to address the court thereon.
Chief Ahamba, SAN, in his clear and unequivocal submission contended that this matter does not come within the ambit of section 241 (2)(a) of the Constitution and rather it falls within the scope of section 246 of the same Constitution. Learned Senior Counsel referred to the word “decision” which has been defined to include interlocutory decision in Buhari v. Yusuf (2003) 14 NWLR (Pt.841) 446, 499 and contended that the makers of the Constitution might as well have included section 241(2)(a) under section 246 if they had so intended. Learned Senior Counsel referred to Buhari v. Obasanjo (2003) 15 NWLR (Pt. 843) 236, and explained that it deals with calculation of period for filing a reply to ascertain whether a reply already put in was filed within the time prescribed or not; and not an authority for extension of time to file a reply.
On the other hand, learned Senior Counsel for respondent, Mr. Wifa contended that sections 246 and 285 deal with election matters. Learned Senior Counsel further contended that while section 285 of the Constitution deal with establishment of tribunals, section 246 of the same Constitution grants the right of appeal and was tempted to say that the issue of election is compartmentalized. After the vacillation, learned Senior Counsel for respondent said that the provisions of section 241 of the Constitution are clear and unambiguous, it seemed to him that it could be read into the provisions of sections 246 and 285 of the Constitution and so the appeal is incompetent.
There is substance in the submission of the learned Senior Counsel that section 241(2)(a) of the Constitution directly deals with right of appeal or otherwise from a decision of a High Court to the Court of Appeal and not necessarily with appeal from election tribunal to the Court of Appeal which right of appeal is conferred under section 246 of the same Constitution. The purpose of section 241(2)(a) is to ensure that the principle of natural justice which demands that when a person’s civil rights and obligations are being impugned or call for determination, he should be given opportunity to defend himself and thus given fair hearing – audi alteram partem.
See Onwumechili v. Akintemi (1985) 3 NWLR (Pt. 13) 504. The rule of natural justice has been with us from creation. Even God himself did not pass sentence upon Adam before he was called upon to enter on his defence. See R v. Chancellor of Cambridge University (1716) 1 Str. 557.
“The Almighty God called upon Adam, have you eaten from the tree I warned you about. Genesis 3: 11. The Lord gave him opportunity to defend himself before passing sentence upon him.”
Even the Romans, as it is borne out in the New Testament, Acts Chapter 25:16 during the trial of St. Paul upheld the maxim of audi alteram partem as follows:
“It is not the manner of the Romans to deliver any man to die, before that he which is accused have the accusers face to face, and have licence to answer for himself concerning the crime laid against him”
The principle of fair hearing presently enshrined in our Constitution provides as follows in section 36(1) thereof-
“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 entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.”
The criteria and attributes of fair hearing were enunciated in N.A.B. Kotoye v. Central Bank of Nigeria & Ors. (1989) 1 NWLR (Pt. 98) 419, by Supreme Court per Nnaemeka-Agu, JSC, at page 444 of the report thus –
“There are certain basic criteria and attributes of fair hearing, some of which are relevant in this case. These include:
(i) that the court shall hear both sides not only in the case but also in all material issues in the case
before reaching a decision which may be prejudicial to any party in the case. See Sheldon v. Bromfield Justices (1964) 2 QB 573 at page 578;
(ii) that the court or tribunal shall give equal treatment, opportunity, and consideration to all concerned. See on this Adigun v. Attorney-General. Oyo State & Ors. (1987) 1 NWLR (Pt.53) 678;
(iii) that the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of public hearing; and
(iv) that having regard to all the circumstances in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done R v. Sussex Justices Ex parte MacCarthy (supra); Deduwa & Ors. v. Okorodudu (1976) 9-10 SC 329.”
Thus, fair hearing in the con of section 36(1) of 1999 Constitution embraces the plenitude of the doctrine of natural justice in the sense of the twin pillars of justice;
(a) audi alteram partem
(b) nemo judex in causa sua
and what is not only right and fair to all concerned.It is on the questions of “justice must not only be done but must manifestly and undoubtedly be seen to have been done” and equal treatment of all concerned that the provisions of section 241(2)(a) of the Constitution must be called into our aid. Can “justice be manifestly and undoubtedly be seen to have been done” if the other side is prevented from stating the facts he considers material to his case? I do not think so. Similarly, neither do I think that the court will be extending equal treatment, opportunity or consideration to all concerned in the event of the interlocutory appeal succeeding and the respondent denied the right to fair hearing.
The litigants before the court either through the provisions of sections 241(1) or 246 of the Constitution are there for the determination of their respective civil rights and obligations. There should therefore, be no discrimination on account that their grouse or grouses emanated from a High Court or an election tribunal or a code of conduct tribunal. The source of the appeal should be immaterial or irrelevant. The significance of the duty of the court to interprete laws particularly the Constitution cannot be over emphasized. It is the duty of the court to uphold the Constitution by such interpretation of its provisions as a single document and not in isolation and thereby encourage a healthy growth of the Constitution. The Constitution should not be construed in a manner to frustrate or defeat the obvious intention of its makers. The duty of the court in this regard was enunciated by Sir Udo Udoma, JSC in Nafiu Rabiu v. The State (1981) 2 NCLR 293, 326:
“the function of the Constitution is to establish a framework and principles of government, broad and general in terms, intended to apply to the varying conditions which the development of our several communities must involve, ours being a plural, dynamic society, and therefore, more technical rules of interpretation of statutes are to some extent inadmissible in a way so as to defeat the principles of government enshrined in the Constitution… this court should whenever possible, and in response to the demands of justice, lean to the broader interpretation… It is my view that the approach of this court to the construction of the Constitution should be, and so it has been, one of liberalism, probably a variation on the theme of the general maxim ut res magis valeat quam pereat.
I do not conceive it to be the duty of this court so to construe any of the provisions of the Constitution as to defeat the obvious ends the Constitution was designed to serve where another construction equally in accord and consistent with the words and sense of such provisions will serve to enforce and protect such ends.”
(Italics mine).
And in Bronik Motors Ltd. v. Wema Bank Ltd. (1983) 1 SCNLR 296 at 321, (1983) 6 SC 158, Nnamani, JSC, at page 311 of the report added his own words of caution thus –
“As was stated in Minister of Home Affairs v. Fisher (1979) 2 WLR 889; (1980) AC 319, 328, a constitutional instrument should not necessarily be construed in a manner and according to rules which apply to Acts of Parliament.
Although, the manner of interpretation of a constitutional instrument should give effect to the language used, recognition should also be given to the character and origins of the instrument. Such an instrument should be treated as sui generis calling for principles of interpretation of its own suitable to its character without necessary acceptance of all the presumptions that are relevant to legislation of private law.”Armed with these words of infallibility from the highest court of the realm, I am respectfully of the firm view that the intention of the Constitution would be defeated, if the provisions of section 241(2)(a) of the Constitution is restricted solely to appeal emanating from a High Court only. It follows that a decision granting leave to defend a suit emanating from an election tribunal, code of conduct tribunal, Sharia Court of Appeal or Customary Court of Appeal would be appealable whereas similar appeal from a High Court, Federal or State, would be effectively barred.
Section 241 (2)(a) of the Constitution provides as follows:
“(2) Nothing in this section shall confer any right of appeal
(a) From a decision of the Federal High Court or any High Court granting unconditional leave to defend an action.”
It is very clear from the provisions of paragraph (a) of subsection (2) of section 241 of the Constitution that there is no right of appeal from a High Court to the Court of Appeal in respect of an order granting an unconditional leave to defend an action. There is only a right of appeal. where a conditional leave to defend is granted, exercisable presumably by the defendant to jettison the condition. See National Bank of Nigeria Ltd. v. Weide & Co. (1996) 8 NWLR (Pt. 465) 150,155; (1996) 9-10 MAC. 209, 217, where Supreme Court per Ogwuegbu said –
“It seems to me that the legislature having set out the situations where an intending appellant can appeal to the Court of Appeal as of light in section 220(1) of the Constitution and made other provisions in section 221(1) where appeals lie with leave, it intentionally excluded any right of appeal in the three cases set out in subsections 220(2)(a),(b) and (c) of the 1979 Constitution. In fact, the exclusion in my view is absolute in subsections 220(2)(a) and (b) whereas sub-section (2)(c) is qualified in the sense that with leave of the High Court or the Court of Appeal, the light of appeal against a decision made with the consent of the parties or as to costs only is preserved.”
Section 220 of 1979 Constitution is in pari materia with section 241 of the 1999 Constitution. In my respectful view, section 241(1) of the Constitution bars a right of appeal either as of right or with leave, in the two instances mentioned in paragraphs (a) and (b). I hold that there is no right of appeal to the Court of Appeal from a decision of an election tribunal granting an unconditional leave to defend a petition. To act otherwise will lead to absurdity. This approach is consistent with the intention of the Constitution. It will be inconsistent with intention of the makers of the Constitution not to permit constitutionally entrenched provisions particularly those safeguarding human rights to be lightly trampled upon or violated. In the circumstance, I find this interlocutory appeal incompetent and strike it out for incompetence. I make no order as to costs; each party to bear his or its own costs.
Other Citations: (2005)LCN/1682(CA)
