Prince Abubakar Audu V. Federal Republic Of Nigeria (2013)
LAWGLOBAL HUB Lead Judgment Report
MAHMUD MOHAMMED, J.S.C.
This interlocutory appeal is against the decision of the Court of Appeal Abuja Division given on 11th December, 2008 in which that Court upheld the decision of the Code of Conduct Tribunal in its Ruling of 29th June, 2007 sitting at Abuja dismissing the Appellant/Applicant’s application by way preliminary objection that the Tribunal lacked jurisdiction to try him not being a serving public officer. The Appellant is now on a further and final appeal to this Court still contending that the Court of Appeal was in error in affirming the jurisdiction of the to try him for the offences he was arraigned before the Tribunal.
The undisputed facts giving rise to the appeal indicate that the Appellant was the elected Governor of Kogi State of Nigeria where he served between 29th May, 1999 to 29th May, 2003. As the then public officer, the Appellant was required by the Constitution of the Federal Republic of Nigeria, 1999 and the Code of Conduct Act to declare his assets before assumption of office and at the expiry of his term of office as the Governor of Kogi State. The Appellant after leaving office was arraigned before the Code of Conduct Tribunal on six count charge among others, for making false declaration of assets on leaving office in 2003. After pleading not guilty to the six count charge on 30th March, 2007, the Appellant brought a motion before the Tribunal dated 24th April, 2007, challenging the jurisdiction of that Tribunal to try him not being a serving public officer. Both the trial Tribunal and the Court of Appeal had ruled against the Appellant, hence his present appeal in which he distilled three issues for determination in his Appellants brief of argument from the 8 grounds of appeal contained in his Notice of Appeal. The three issues are –
“7. Did the Court below act rightly when after deeming the Respondent’s brief as filed on 13th December, 2008, without the Appellant being served the said brief or given opportunity to file a reply to the Respondent’s brief of argument, the Court below heard the case which is not ripe for hearing, and then proceeded to judgment after having considered the appeal on the basis that the Appellant’s brief said to be filed on 13th August, 2007 Notwithstanding that the records indicate that the Appellants brief was field on 26th October, 2007 in the Court below
- Did the Court below correctly expound the jurisdiction of the Code of Conduct Tribunal in holding that prosecution in the Code of Conduct Tribunal could be commenced after service as a public officer
- Is the Court of Appeal right to hold that the Appellant can be prosecuted at the same time in two different Courts and refusing to strike out the later action in the Code of Conduct Tribunal as an Abuse of Process
In the Respondent’s brief of argument also three issues were distilled as follows from the Appellants 8 grounds of appeal.
“1. Whether by not filing a Reply Brief at the Court of Appeal, the (sic) Respondent was denied the opportunity of fair hearing, and whether thereby there was a miscarriage of justice resulting in injustice to him.
- Whether the Court below was right to hold that the Appellant, being a former public officer, should answer charges of false declaration of his assets, failure to declare his assets, the conversion of a Peugeot 505 car, property of Kogi State Government to his personal property, and having over and above his legitimate income and earnings arising from his tenure as Governor of Kogi State, before the Code of Conduct Tribunal.
- If the answer to issue(2) is in the affirmative, whether the Court below was also right to hold that the proceedings before the Code of Conduct Tribunal for the Appellant’s contravention of the Code of Conduct for public officers, does not amount to an abuse of Court process.”
In support of the first issue for determination in the Appellant’s brief, his learned Counsel referred to page 99 of the record of this appeal and pointed out that the Appellant’s brief of argument filed for the Appellant at the Court below was actually filed on 26th October, 2007 quite contrary to what the Court below stated in its judgment at page 134 that the brief was filed on 13th August, 2007. Learned Counsel further observed that the Respondents brief was filed out of time on 21st January, 2008, though it was not served on the Appellant but was deemed filed in the Court below as stated in the judgment of that Court at page 135 of the record, on 13th October, 2008. That judgment was reserved after the adoption of the Respondent’s Brief in the absence of Appellant and his Counsel who were not served with the Respondent’s brief nor given the opportunity to file and serve the Appellant’s Reply Brief on having served with the Respondent’s Brief as provided by Order 17 Rules 4 and 5 of the Court of Appeal Rules. In this respect therefore, observed the learned Counsel, as at 13th October, 2008, the appeal was not ripe for hearing in addition to the fact that the appeal was determined on a brief of argument not filed by the Appellant, thereby resulting in depriving the case of the character of fair hearing. Relying on a number of cases including Chief Onwuka Kalu v. Chief Odili (1992) 5 S.C.N.J 76 at 127, Anya v. African Newspapers (1992) 7 S.C.N.J. 47 at 57, and Owners of the MV ‘Arabella’ v. Nigeria Agricultural Insurance Corporation (2008) 5 S.C.N.J. 109 at 120, learned Counsel urged this Court to hold that the Appellant is entitled under Order 17 Rule 5 of the Rules of the Court of Appeal 2007, to file a Reply Brief before hearing, which opportunity was precluded suo motu by the Court below.
On this issue, learned Counsel to the Respondent has asserted that what was stated by the Court below at page 135 of the record in its judgment that the Respondent’s brief was filed on 21st January, 2008 and deemed filed on 13th October, 2008 was a mistake on the part of that Court which also mistakenly stated that the Appellant’s brief was filed on 13th August, 2007. Learned Counsel described these mistakes as slips on the part of the lower Court which the Appellant should not be allowed to capitalize upon under the guise of denial of fair hearing. Learned Counsel agreed however that the Appellants brief was actually filed on 26th October, 2007 while the Respondent’s brief was filed on 26th November, 2007 which by virtue of Order 17 Rule 4(1) of the Court of Appeal Rules 2007, ought to have been filed within 30 days, was infact filed 31 days after the date of filing of the Appellant’s brief. That since 25th November, 2007 fell on a Sunday, which Section 15 of the Interpretation Act said shall not count in computing the number of the 30 days, the Respondent’s brief was filed within time. Citing several cases such as Alhaji Baba v. N.C.A.T.C (1991) 7 S.C. (Pt.1) 58 at 80, Oje v. Babalola (1991) 5 S.C. 128 at 141 and Agbabiaka v. Saibu (1998) 7 S.C. (Pt.II) 157 at 181, the learned Counsel urged this Court to disregard the errors and slips of the Court below because no miscarriage of justice had been occasioned as the filing of the Appellant’s Reply Brief in the present case, was not necessary since the Appellant was given the opportunity to be heard but decided to stay away from Court on 13th October, 2008. The case of Oguntayo v. Adelaja (2009) 6 – 7 S.C. (Pt.111) 91, was cited in support this last submission that the Appellant was indeed given the chance to file a Reply Brief but declined to use the opportunity and therefore cannot now complain of denial of fair hearing.
The resolution of this issue depends on the records of this appeal, particularly the judgment of the Court below now on appeal and the applicable law regarding the bindingness of the record of appeal and the provisions of the Court of Appeal Rules relating to filing of briefs of argument and the service of the same on the parties before the hearing of the appeal. The law is trite that an appellate Court cannot go outside the records of appeal in search of evidence favourable to any of the parties. Like pleadings which bind parties at the High Court, the Court of Appeal and the Supreme Court, as appellate Courts, are clearly bound by the records of appeal. In otherwords records of proceedings or appeal, bind the parties and the Court until the contrary is proved. This is because there is a strong presumption of the genuineness of the record which is rebuttable. See Sommer v. Federal Housing Authority (1992) 1 N.W.L.R. (pt.219) 548; Texaco Panama Inc. of Nigeria Ltd. v. Shell Petroleum Development Company (Nig.) Ltd. (2002) 5 NWLR (Pt.759) 209; Ogolo v. Fabura (2003) 11 N.W.L.R. (Pt.931) 231 and Nuhu v. Ogele (2003) 18 N.W.L.R. (Pt. 852) 251. The Court is not only bound by the records of appeal but is also bound to examine the state of the record on the conflicting claims of the parties.In the present case, the record of appeal which has not been challenged by any of the parties is deemed genuine, authentic and consequently binding not only on this Court but on the parties as well. This record shows at page 130 that the Appellant’s appeal at the Court below was heard on Monday 13th October, 2008 in the absence of the Appellant and his learned Counsel, though the Respondent’s counsel told the Court that the Appellant was served on 10th October, 2008. There and then the Court below referred to the Appellant’s brief filed on 26th October, 2007 as having been argued. The Respondent’s Counsel then adopted the Respondent’s brief filed on 26th November, 2007 and urged the court to dismiss the appeal before the Court below reserved judgment. From the record however, there is no indication as to when the Appellant’s brief filed on 26th October, 2007, was served on the Respondent. However, even if the Appellant’s brief was served on the Respondent the very day it was filed on 26th October, 2007, the Respondent’s brief filed on 26th November, 2007, 31 days after the filing of the Appellant’s brief, was plainly filed out of time having regard to the provision of Order 17 Rule 4(1) of the Court of Appeal Rules, 2007 which gives 30 days after the service of the Appellants brief for the Respondent’s brief to be filed. On the face of the proceedings of the Court below of 13th August, 2008 when the appeal was heard, there was no mention of any application by the Respondent for extension of time to file the Respondents’ brief.
All the same, in the judgment of the court below delivered on 11th December, 2008, that court indicated at page 134 of the record that the appeal was heard on the Appellant’s brief filed on 13th August, 2007 quite contrary to the Appellant’s brief of argument of 26th October, 2007, earlier referred to by that court as the brief deemed to have been adopted by the Appellant. There is also no explanation as to how the Appellant’s brief said to have been filed on 13th August, 2007, surfaced in the judgment of the court below. Furthermore, the Court below in its judgment at page 135 quite contrary to the Respondent’s brief filed on 26th November, 2007 adopted by the Respondent when the appeal was heard on 13th August, 2008, referred to another brief said to have been filed by the Respondent on 21st January, 2008 which was deemed filed on 13th October, 2008, the date the appeal was heard.
It is therefore quite clear from the record that the Appellant’s appeal at the Court below was not heard on the Appellant’s brief filed on 26th October, 2007 and the Respondent’s brief filed out of time on 26th November, 2007 which were adopted for the parties on 13th October, 2008. In otherwords, as far as the judgment of the court below is concerned, the Appellant’s appeal was heard on the Appellant’s brief filed on 13th August, 2007 and the Respondent’s brief filed on 21st January, 2008 which was deemed filed on 13th October, 2008, the date the appeal was heard.
The question now is whether the Court below was right in proceeding to hear the appeal and reserve judgment after granting the Respondent’s apparent application for extension of time to regularise the filing of the Respondent’s brief of argument filed on 21st January, 2008 to deem same as properly filed and served on 13th October, 2008. The answer is definitely in the negative taking into consideration that the order deeming the Respondent’s brief as property filed on 13th October, 2008, was made in the absence of the Appellant and his Counsel whose time of 14 days to file a Reply Brief if any, started to run from that day by virtue of the provisions of Order 17 Rule 5 of the Court of Appeal Rules 2007. Having regard to the situation revealed in the judgment of the Court below at page 135 of the record, it goes without saying that the Appellant was not served with the Respondent’s brief deemed filed on 13th October, 2008 as neither he nor his Counsel was in Court on that day when the appeal was heard and reserved for judgment. This of course means that the period of 14 days within which the Appellant may file and serve his Appellant’s Reply Brief if he requires to do so by the right given to him under Rule 5 of Order 17 of the Court of Appeal Rules is even yet to be determined in the absence of the actual date of service of the Respondent’s Brief of Argument on the Appellant. In this regard, the complaint of the Appellant in this issue that he was denied his right to file his Reply Brief by the Court below, is obviously well grounded resulting in clear breach of his right of fair hearing. This is because the appeal was not ripe for hearing after deeming the Respondent’s brief of argument filed on 13th October, 2008. The appeal ought to have been adjourned to another date for hearing to allow time for the Appellant to be served with the Respondent’s Brief filed on the very day the appeal was heard.
The law is indeed well settled that fair hearing within the meaning of section 36(1) of the-constitution of the Federal Republic of Nigeria, 1999, means a trial or hearing conducted according to all the legal rules formulated to ensure that justice is done to the parties.
It requires the observation or observance of the twin pillars of the rules of natural justice, namely, audi alteram partem and nemo judex in causa sua. These rules, the obligation to hear the other side of a dispute or the right of a party indispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground. See Nwokoro v. Oruma (1990) 3 N.W.L.R. (Pt.136) 22.
The effect of denial of fair hearing is trite in law. In otherwords once there is a breach of the right of fair hearing, the whole proceedings in the course of which the breach occurred and the decision arrived at by the Court, becomes a nullity. See Akinfe v. The State (1988) 3 N.W.L.R. (Pt.85) 729 at 753 and Bamgboye v. University of Ilorin (1999) 10 N.W.L.R. (Pt.622) 290 at 333.
In the case at hand therefore where there had been a breach of the Appellants right of fair hearing where he was denied the right to file a Reply and be heard on it in his appeal by the Court below, the entire proceedings of that Court including the judgment now on appeal have been rendered a nullity and I declare them so. Having arrived at this decision on the resolution of the 1st issue for determination in this appeal, there is nothing remaining in the two other issues to be determined. The appeal is accordingly allowed and the case is remitted to the Court below for hearing afresh on fresh briefs to be filed and adopted at the hearing for the parties in order to give the Appellant the opportunity to being heard on his chosen Appellant’s Brief and Appellant’s Reply Brief respectively.
I do not regard it appropriate to make any order on costs.
SC.61/2009
