Prince Shaibu Halilu Sani & Anor V. Hon. Attai Usman Aidoko & Ors. (2008)
LawGlobal-Hub Lead Judgment Report
RABIU DANLAMI MUHAMMAD, J.C.A.
The 1st appellant herein contested for election under the platform of All Nigeria People Party (ANPP) at the House of Representative election for Ankpa/Omala/Olamaboro Federal Constituency held on the 21st day April, 2007. The second appellant ANPP is a duly registered political party which sponsored the 1st appellant as it; candidate at the said election. The 1st respondent contested the said election under the platform of PDP which is a duly registered political party. At the conclusion of the election, the 1st respondent was declared the winner of the election having scored the majority of lawful votes cast at the election.
The appellants were not happy that the 1st respondent was declared the winner of the election by the 2nd and 3rd respondents hence they presented a petition before the National Assembly Election Tribunal holden at Lokoja, Kogi State on the grounds that the election was marred and void by corrupt practices and non-compliance with the Electoral Act, 2006 and that the 1st respondent was not elected by majority of lawful votes cast at the said election in compliance with the Electoral Act, 2006 and consequently his return is null. After completing all the pre-trial formalities, the petition was adjourned to 23rd July, 2007 for hearing. On the adjourned date counsel for the petitioner asked for adjournment because some vital documents they subpoened were not produced by INEC. Counsel for all the respondents opposed the application for adjournment. However, the Tribunal reluctantly granted the adjournment and said it would be the last adjournment at the instance of the petitioner.
Hearing of the petition started on 6th September, 2007. Five witnesses testified on behalf of the petitioner on that day because one of the counsel had an appointment with his doctor. The matter was adjourned to 13th September, 2007 for continuation of hearing. On the 13th September, 2007 the petitioners counsel was not in Court. However, he sent a letter to the Tribunal asking for adjournment because of counsel’s engagement at the F.C.T. Area Council Election Tribunal. All the respondents counsel opposed the application for adjournment. The petitioners themselves were not in court. The Tribunal refused the adjournment and accordingly dismissed the petition. This is what the Tribunal said in its ruling:-
“We have seriously looked at the conduct of Counsel to the petitioner who has sent the letter urging us to adjourn the matter to 15th day of September, 2007 on the ground that he has another engagement at the Local Council Tribunal in the FCT. We believe it is most discourteous and indomitable for the counsel to say as he did, that we imposed this date on him. Hearing into election petitions is from day to day as per the provision of paragraph 24 (1) of the First Schedule of the Electoral Act, 2006.
Election petitions are not ordinary civil matters, are Sui Generis and we cannot afford to be adjourning matters on flimsy reasons even when parties decide to stay away.
By provision of paragraph 5(3) of the Election Tribunal and Court Practice Directions 2007
“When a petition comes up for hearing, if the respondent appears and the petitioner does not appear, the respondent shall be entitled to final judgment dismissing the petition.”
We note that this is not the first time the learned counsel is asking for adjournment and thereby truncating the proceedings. He made a similar application on the 23rd July, 2007 when the matter came up for hearing on the ground that he had not secured a certain document he wanted to use in the prosecution of the Petition from INEC.
We are consequently of the view that the absence of the learned counsel to the petitioners and the petitioners themselves is a clear demonstration of lack of sufficient interest in the matter. We would have differently had the petitioners themselves been present this morning. But as it were, none of them is in court. Their absence has also not been accounted for.
We are therefore invoking the provision of Paragraph 5(3) of the Practice Directions, 2007 (as amended) to enter judgment in favour of the respondents.
The petition is hereby dismissed.”
Aggrieved by this decision, the petitioners appealed to this Court. The Notice of Appeal contains three grounds of appeal, shorn of their particulars, the grounds of appeal read:-
“GROUND ONE
The learned Chairman and the Honourable members of the Tribunal erred in law in refusing the Petitioners’ application for adjournment in breach of their fundamental rights and same has occasioned substantial miscarriage of justice.
GROUND TWO
The trial Tribunal erred in law in dismissing the petition without considering the evidence led by petitioners and same has occasioned substantial miscarriage of justice.
GROUND THREE
The learned trial Tribunal erred in law in dismissing the petition relying on the provision of the Practice Direction of the President of the Court of Appeal thereby denying the Petitioners/Appellants the right to fair hearing guaranteed by Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria.”
Briefs of argument were filed and exchanged. In the appellants’ brief three issues were formulated for the determination of the appeal. The issues are:-
“1. Whether the Trial Tribunal judicially and judiciously exercised its discretion in refusing to grant the appellants application for adjournment.
- Whether the Trial Tribunal was right in dismissing the petition without considering the evidence of the 5 witnesses called by the Petitioner and the witness statements on oath of the remaining 25 witnesses yet to testify.
- Whether -the decision of the Trial Tribunal dismissing the petition upon the provisions of the Practice Direction 2007 and shutting out the petitioners from presenting their case before the Tribunal is not a contravention of heir right to fair hearing guaranteed under Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria.”
The lst respondent also formulated three issues for the determination of the appeal viz:
“1. Whether or not the application for adjournment by the appellants is a fundamental right which must be granted as of right.
- Whether or not the dismissal of the appellants petition by the trial Tribunal in accordance with the Election Tribunal and Court Direction, 2007 violates the Petitioners/Appellants right to fair hearing guaranteed by Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria.
- Whether or not the dismissal of the Appellants petition without considering the evidence led by the Petitioners! Appellants has occasioned miscarriage of justice.”
The second respondent in its brief adopted the issues formulated by the 1st respondent.
For the determination of this appeal, I will adopt the issues formulated by the appellant. The first issue is whether the trial tribunal judicially and judiciously exercised its discretion in refusing to grant the appellants application for adjournment.
It was submitted in the appellants brief that paragraph 24 (1) of the 1st Schedule to the Electoral Act, 2006 conferred jurisdiction on the tribunal to grant adjournment in appropriate cases depending on the circumstances of the proceedings before it. It was also submitted that considering the fact that election petitions are Sui Generis and that time is of the essence, the principles of law on adjournment in civil cases also apply to election petitions. It was then submitted that in considering whether or not to grant an application for adjournment, the tribunal must among others considers:-
(i) The application on its own merits.
(ii) The reasons for the said application for adjournment.
(iii) Whether the adverse party is opposing the application or not.
(iv) The interest of justice in the case and
(v) Exercise its discretion judiciously and judicially.
The following cases were cited in support:- George vs George (2000) FWLR (Pt 23) 1180, Ajisepini vs DPP (2002) FWLR (pt.122) 88 and Aliyu Vs Chairman, Rent Tribunal (No 5) Kaduna (2003) FWLR (Pt.155) 636.
The appellants then made the following concessions- (a) that the issue of adjournment is at the discretion of the court and (b) that adjournment is not granted as a matter of course. It was then submitted that the quest for justice should be the overriding principle in determining whether or not to grant an adjournment. The following cases were cited in support of the above submissions:-
Usani vs Duke (2005) All FWLR (Pt.244) 960 and Main Ventures Ltd Vs Petroplast Ind. Ltd (2000) 4 NWLR (pt 651) 151, it was further submitted that in view of the circumstances of this case, an adjournment would have best served the interest of justice and the case of Umarco Vs Panalpina (1986) 2 NWLR (pt 20) 65. We were urged to answer issue No 1 in the negative and allow this appeal.
The 1st respondent in his brief submitted that the issue of adjournment is not a fundamental right issue as contained in Sections 33 – 46 of the 1999 Constitution. The case of Udoh Vs Orthopaedic Hospital Management Board (1993) 7 NWLR (Pt 304) 139 was referred to. It was then submitted that adjournment is a matter of discretion and for an application for adjournment to succeed the applicant must be able to place sufficient reasons before the court why such application ought to be granted. In support the case of Aisthon S. A. Vs Saraki (2005) 3 NWLR (Pt 911) 208 was cited. It was further submitted that even though adjournment is a matter of discretion, it is the duty of the Court not to allow dilatory practice aimed at delaying the progress of a case. We were referred to the case of Fagbule vs Rodriguez (2003) FWLR (Pt 137) 1171.
Paragraph 24 (1) of the 1st Schedule to the Electoral Act, 2006 was referred to and then it was submitted that the tribunal is under no obligation to conduct the election petitions at the convenience of any counsel as time is of essence in an election petition. It was further submitted that, the letter of applicants’ counsel asking for adjournment did not show any special circumstances for which the application for adjournment ought to be granted. The 1st respondent urged us to resolve the 1st issue in his favour.
It is trite law that adjournment is a matter of discretion. However, the discretion must be exercised judicially and judiciously. See Albert Ilona and ars Vs Ojugbeli Dei and Ors (1971) 1 All NLR 8 where the Supreme Court held at page 13 that:-
“The question whether or not to grant an adjournment is a matter in the discretion of the court. But that discretion must at all times be exercised not only judicially but also judiciously.”
As could be seen, the exercise of such discretion is a judicial act which must be premised on established legal principles. The court must also balance its discretionary powers to grant or refuse an adjournment with its duty to see that substantial justice is done to both parties. The court must not allow unnecessary adjournments to delay the case. See Donatus Ndu Vs The State (1990) 12 SCNJ 50 where Akpata JSC said at page 60:-
“A trial court in exercising its discretion as to whether to grant an adjournment always bears in mind that it is the duty of the Court to minimize costs of litigation and to see to it that justice is not unnecessary delayed. The court will refuse in application by either party for an adjournment of the hearing if it is of the opinion that the application was made only for purposes of delaying the proceedings.”
In our present case, it is an election petition, it is neither a civil nor criminal proceedings. It is Sui Generis and time is of the essence. By the provisions of Paragraph 24 (1) of the 1st Schedule to the Electoral Act, 2006, the hearing of an election petition is from day to day, Paragraph 24 (1) provides:-
“No formal adjournment of the Tribunal or court for the hearing of an election petition shall be necessary, but the hearing shall be deemed adjourned and may be continued from day to day until the hearing is concluded. Unless the Tribunal or court otherwise directs as the circumstances may dictate.”
Even though the hearing of an election petition shall continue from day to day, a Tribunal or court can grant an adjournment depending on the circumstance.
On the 6th day of September, 2007 when the Tribunal adjourned the matter to 13th day of September, 2007 the appellants’ counsel was in court. He pleaded with the Tribunal to change the date to 15th September, 2007 because learned counsel would be at the FCT Area Council Election Tribunal on the said 13th September, 2007, The Tribunal refused. It insisted that the matter would continue on tile said 13th September, 2007, learned council for the appellants did not appear before Tribunal instead he sent a letter to the Tribunal asking for an adjournment. His reason was that he was at the FCT Area Council Election Tribunal. This is the same reason he gave to the Tribunal on 6th September, 2007 and the Tribunal was not satisfied with the reason and refused to grant the adjournment. The petitioners themselves were not in court. The Tribunal refused to grant the adjournment. It dismissed the petition. The Tribunal said had the petitioners been in court that morning they would have granted the adjournment. However, the absence of the petitioners according to the Tribunal was a clear demonstration of lack of sufficient interest in tile matter. It therefore invoked the provision of paragraph 5(3) of the Practice Direction, 2007 and dismissed the matter.
As I have earlier stated, to grant or not to grant an adjournment is at the discretion of the Court or Tribunal and this discretion cannot be rightly tempered with by an Appeal Court. See Aisthon S.A. Vs Saraki (Supra) where the Supreme Court stated at page 232 that:-
“…the exercise of a discretion to refuse an application for an adjournment of a case fixed for hearing by a trial Court should therefore not be tampered with by any appellate court as a matter of course.”
Considering the sequence of events in this matter, it is my humble opinion that the tribunal has exercise its discretion judicially and judiciously in refusing to grant the application for adjournment. This is moreso, when the petitioners themselves were not in court. I therefore answer the first issue in the affirmative.
I now come to the issue of fair-hearing. It was submitted by the appellants that 536 (1) of tile 1999 Constitution guarantees the right to fair hearing and that fair hearing is a cardinal issue in the determination of a fair trial and where it is breached same will occasion miscarriage of justice and under the entire proceedings a nullity. The case of Aladetoyinbo vs Adewunmi (1990) 6 NWLR (Pt.154) 98 was referred to. It was also submitted that as much as election petitions are Sui Generic and ought to be expeditiously determined, the rules of fair hearing cannot be jettisoned and that rules of practice cannot preclude the Tribunal from granting adjournment in appropriate cases. It was further submitted that the tribunal was in error in refusing to grant an adjournment by applying rigidly the provisions of the practice direction at the expense of the appellants’ constitutional right to fair hearing and same has occasioned miscarriage of justice and rendered the trial and the judgment of the Tribunal a nullity. We were referred to the case of Otokpa Vs Opeuyi (2005) NWLR (Pt. 272) 318.
The 1st respondent, after considering the provisions of Section 36(1) of the 1999 Constitution and the cases of Fagbule Vs Rodrigues (2003) FWLR (Pt.137) 1171 and Kotoye Vs CBN (2001) FWLR(Pt.49) 1567 submitted that the appellants’ were accorded fair hearing. All the parties were granted opportunity of being heard.
By Section 36(1) of the 1999 Constitution, fair hearing simply means that in determining the right or obligation of a person, a court of law or tribunal must give the persons involved, equal opportunity to be heard in respect of the matter before the court. It also means that the parties must be given equal facilities. In Aisthon S.A. vs. Saraki (2005) 3 NWLR (Pt 911) 299, Ejiwunmi JSC stated:-
“There is no doubt at all that the principle of Fair hearing is fundamental to all court procedure and proceedings and like jurisdiction the absence of it vitiates proceedings, however well conducted. See Solu Vs Egeibon (1994) 6 NWLR (Pt 348) 23 at 40; Ceekay Traders Vs G.M. Co. Ltd (1992) 2 NWLR (Pt.222) 132; Moma Vs A. G. Bendel State (1988) 2 NWLR (Pt.75) 201.
Fair hearing, according to our law, envisages that both parties to a case be given an opportunity of presenting their respective cases without let a hindrance from the beginning to the end. It also envisages that the Court or tribunal hearing the parties case should be fair and impartial without showing any degree of bias against any of the parties.”
See also Okike v. L.P.D.C. (2005) 15 NWLR (Pt 949) 471 at 532 where Pats-Acholonu JSC (of blessed memory) said:-
“The expression “fair hearing” which has been variously interpreted in numerous judgment in the common law countries does not required quantitative analysis. Fair hearing denotes and imports the concept and practices speaking jurisprudentially, of a very fundamental tenet which behoves of the court, tribunal or any quasi judicial body to conduct its affairs so transparently open that it accords all the parties involved in any disputation the opportunities of marshalling their case adroitly to their possible best so that a common man in the street can easily see and declare that the person affected has been freely allowed to put his case forward for consideration. You cannot complain of lack of fair hearing when you refuse to co-operate.”
In the instant appeal, the appellant counsel was not in court on the adjourned date. Instead he sent a letter asking adjournment of the matter because he was at the FCT Area Council Tribunal. It could be recalled that this was the same reason he gave, when he asked the tribunal to give him another date and the tribunal refused. The letter for adjournment was read in open court. Counsel to the other parties responded to the letter for adjournment which they opposed. The petitioners themselves were absent from court. There was no explanation as to their absence. In the circumstance the tribunal has given the petitioners all the opportunity to present their case. The petitioners failed to utilise the opportunity afforded to them. They cannot be heard to complain of denial of fair hearing.
Paragraph 5(3) of the Election Tribunal and Court Practice Direction 2007 provides:-
“When a petition comes up for hearing, if the Respondent appears and the petitioner does not appear, the Respondent shall be entitled to final judgment dismissing the petition.”
The Tribunal was therefore right in invoking the provision of paragraphs of the Practice Direction, 2007 to dismiss the petition. The petitioners were afforded all the opportunity of being heard and they failed to avail themselves of the opportunity. Their right to fair hearing has not been breached.
In the circumstance. The appeal fails and is hereby dismissed. The decision of the lower tribunal dismissing the petition is affirmed.
Parties to bear their own costs.
Other Citations: (2008)LCN/2680(CA)
