CHIEF ALBERT ABIODUN ADEOGUN & 2 ORS V HON. JOHN OLAWOLE FASHOGBON & 2
May 30, 2025ODOEMENA NWAIGWE & 2 ORS V NZE EDWIN OKERE
May 30, 2025Legalpedia Citation: (2008-05) Legalpedia (SC) 81116
In the Supreme Court of Nigeria
Fri May 30, 2008
Suit Number: SC.238/2007
CORAM
NIKI TOBI, , JUSTICE, SUPREME COURT
SUNDAY AKINOLA AKINTAN,, JUSTICE, SUPREME COURT
FRANCIS FEDODE TABAI,, JUSTICE, SUPREME COURT.
NIKI TOBI, , JUSTICE, SUPREME COURT
PARTIES
1. BARR. (MRS.) AMANDA PETERS PAM
2. ALL NIGERIA PEOPLES PARTY (ANPP).
APPELLANTS
NASIRU MOHAMMED& ANOR
RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The 2ndRespondent won the primary election of the ANPP (the 1st Respondent) to contest the general election for the Abuja Municipal Area Council AMAC/BWARI Federal House of Representative which was scheduled in April 2007. The 2ndRespondent was expelled from ANPP and the 1st Respondent wrote a letter to the INEC (the 1st Respondent) to substitute the 2ndRespondent with the Appellant without giving any reason for the said substitution. Irked by the above development, the 2ndRespondent initiated an originating summons against the Appellant and the 1st, 3rd and 4thRespondents at the Federal High Court, Abuja seeking a declaration that his substitution was not done in compliance with section 34(2) of the Electoral Act, 2006.The trial Court gave judgment in the favour of the 2ndRespondent.On the 18thday of April 2007 at 11:00am,the Appellant moved her application to set aside the judgment of the trial Court on the ground that she was not served with the originating processes in consequence of which the trial Court set aside the judgment. No sooner had the trial Court set aside the judgment that it stood down the matter to 1:30 pm for the Appellant to file his counter-affidavit to the 2ndRespondent’s case so that the matter would be heard instantly. The trial Court refused either an application by the Appellants’ Counsel for an adjournment or a stand down to at least 3:00pm so as to enable him file a counter-affidavit and written address to the 2ndRespondent’s originating process. Notwithstanding the handwritten counter-affidavit hastily prepared and filed by the Appellant, the trial Court heard the matter on the same day and entered judgment in favour of the 2nd Respondent. Dissatisfied with the judgment of the trial Court, the Appellant appealed to the Court of Appeal while the 1st Respondent filed a cross-appeal but both the main and the cross-appeals were all dismissed by the Appellate Court.Still dissatisfied with the judgment of the Appellate Court, the Appellant appealed to the Supreme Court.
HELD
Appeal dismissed.
ISSUES
1. Whether the Court of Appeal was right in affirming that 1st Respondents had locus standi to institute the suit to challenge his substitution as a candidate of the ANPP, 2nd Appellant to contest the AMAC/BWARI Federal Constituency when at the time of institution of the suit i.e. March 22, 2007, he had ceased to be a member of ANPP by reason of expulsion on February 2, 2007?
2. Whether the Court of Appeal was right in holding that the 1st Appellant’s right to fair hearing was not breached in the determination of the issues before the trial Court.Whether originating summons was appropriate procedure in the determination of the issues raised in the suit?
RATIONES DECIDENDI
SETTING ASIDE OF A JUDGMENT – A JUDGMENT THAT HAS BEEN SET ASIDE AFFECTS ALL DOCUMENTS USED IN THE PROCEEDING
“The position of the law is that where a judgment is set aside, it includes and affects all documents used therein, including oral or written addresses of counsel..”PER NIKI TOBI, JSC
ORIGINATING SUMMONS- ORIGIN OF ORIGINATING SUMMONS
“The English Common Law which Nigeria received has developed a corpus juris on when an action can and cannot be commenced by originating summons. The procedure for originating summons came into the English Legal System by the Chancery Procedure Act of 1852 which replaced the old mode of commencing proceedings in the Court of Chancery by “bill” with the commencement of a suit in certain cases only by summons originating proceedings in chambers. In 1883, the rules of the Supreme Court 1875 were stated and the term originating summons was for the first time introduced. See Re Holloway (A solicitor ex-parte Pallister (1894) 2 QB 163. See also Re Priver, Lindsell v. Phillips (1885) 30 Ch. D 291.”PER NIKI TOBI, JSC
SUBSTITUTION OF A CANDIDATE – REQUIREMENTS FOR A VALID SUBSTITUTION OF A CANDIDATE
“Among the requirements which must be met in respect of a valid substitution of any candidate as prescribed in section 34 of the Electoral Act are: (1) that such substitution must be made not later than 60 days to the election; and (2) the request must be supported with cogent and verifiable reasons.”PER AKINTAN, JSC
TEST OF FAIR HEARING- THE TRUE TEST OF FAIR HEARING IS THE IMPRESSION OF A REASONABLE PERSON WHO WAS PRESENT AT THE TRIAL WHETHER FROM HIS OBSERVATION JUSTICE HAS BEEN DONE
“The true test of a fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done. PER NIKI TOBI, JSC
ORDER OF THE COURT – AN ORDER OF THE COURT WHICH CANNOT BE IMPLEMENTED IS AS GOOD AS NOT MADE
“If a trial Judge gives an order which he knows or ought to know as an expert of law and procedure that in the circumstances of time cannot be implemented, such an order is as good as not made.”PER NIKI TOBI, JSC
DUTY OF A TRIAL JUDGE – A TRIAL JUDGE HAS THE LEGAL DUTY TO OBEY THE PROVISIONS OF FAIR HEARING AS ENSHRINED IN SECTION 36 OF THE 1999 CONSTITUTION
“A trial Judge has a legal duty to create an environment for fair hearing and not a caricature or make do of it. He must be seen by an appellate court to have obeyed the fair hearing provision in section 36 of the 1999 Constitution to the letters of the alphabet. He cannot be miserly with his apportionment of time to the parties in the hearing of the case. He cannot be over generous with the court’s time too, to the extent that the hearing of the case is unusually delayed. The Judge as a man and master of discretion has to exercise that discretion judicially and judiciously. As long as he does that, an appellate court will not intervene.”PER NIKI TOBI, JSC
RESOLUTION OF CONFLICT BETWEEN A REASONABLE TIME FOR THE PARTIES AND THE COURT- WHERE THERE IS CONFLICT BETWEEN A REASONABLE TIME FOR THE PARTIES AND THE COURT, THE FORMER PREVAILS
“Although the case law is to the effect that a court of law is entitled to a reasonable time in the hearing of a matter and delivery of judgment (see Chief Egbo v. Chief Agbara (1997) 1 NWLR (Pt. 481) 292) the provision of section 36(1) is in respect of the parties and not the court. Therefore where there is a conflict between a reasonable time for the parties and the court, the former must prevail. When I say this, I am not unaware of the fact that the reasonable time of the court, relates to delay in the administration of justice, which is vital in the judicial process. In sum, what constitutes reasonable time within the meaning of section 36(1) of the Constitution depends on the facts and circumstances of each case.”PER NIKI TOBI, JSC
REASONABLE PERSON AND AN IMPARTIAL OBSERVER -MEANING OF A REASONABLE PERSON AND AN IMPARTIAL OBSERVER
“The reasonable person and the impartial observer mean the same. They mean a complete stranger, an unbiased person to the proceedings. A reasonable person is a person with reason having a faculty of the mind by which he distinguishes truth from falsehood, good from evil. A reasonable person is a fair, proper and just and unbiased person. An impartial observer is not partial. He favours neither the plaintiff nor the defendant. He is disinterested in the matter, as he treats both the plaintiff and the defendant alike. He is an unbiased person. Both the reasonable person and the impartial observer are the hypothetical legal standard for determining or judging fairness, fair play and equity. The test of the reasonable man in Nigerian courts is no more the man at the Clapham junction in London but one in anywhere in the Nigerian cities.”PER NIKI TOBI, JSC
FAIR HEARING –DUTY OF COURT NOT TO PLACE RELIANCE ON TECHNICAL RULE OR PRESCRIBED PRE-REQUISITES TO DETERMINE THE PRINCIPLE OF FAIR HEARING BUT SHOULD SEEK TO KNOW WHETHER EQUAL OPPORTUNITY HAS BEEN AFFORDED TO PARTIES TO FULLY VENTILATE THEIR GRIEVANCE
“It is wrong and improper to approach the meaning of fair hearing by placing reliance on any & priori assumptions as to its technical requirements. The simple approach is to look at the totality of the proceedings before the court and then form an opinion on objective standards whether or not an equal opportunity has been afforded to parties to fully ventilate their grievances before a court. The principle of fair hearing cannot be applied as if it were a technical rule based on prescribed pre-requisites. It seems a sufficient satisfaction of the principle if parties were afforded an equal opportunity without any inhibition to put across their case.”PER G. A. OGUNTADE, JSC
LOCUS STANDI – MEANING OF LOCUS STANDI
“The term locus standi denotes legal capacity to institute proceedings in a court of law. It is used interchangeably with the terms like standing or title to sue. It is the right of a party to appear and be heard on a question before any court or tribunal. See generally Senator Adesanya v. President of the Federal Republic of Nigeria (1981) 2 NCLR 358; Vol 2 ACLC, 1 Chief Dr. Thomas v. The Most Rev. Olafosoye (1986) 1 NWLR (Pt. 18) 669; Fawehinmi v. Col. Akilu (1987) 4 NWLR (Pt. 67) 797.” PER NIKI TOBI, JSC
JUSTICE – JUSTICE MUST BE DONE IN A CASE
“Justice, that elusive and generic expression, is the cynosure or fulcrum of the administration of justice because it is the aim of the administration of justice to obtain it. Justice, which means in its simplistic content, quality of being just, fair play and fairness, possessing an element of egalitarianism in its functional content, must be done in a case.”PER NIKI TOBI, JSC
TRIAL -THE DESIRE OF A JUDGE TO HEAR A MATTER SPEEDILY CANNOT BE SUBSTITUTED FOR FAIR HEARING
“The ambition and desire of a Judge to hear a matter speedily cannot be substituted for fair hearing of the case.”PER NIKI TOBI, JSC
MISCARRIAGE OF JUSTICE- MEANING OF MISCARRIAGE OF JUSTICE
“Miscarriage of justice is simply justice miscarried. I do not think I have said much. I should go further to say that miscarriage of justice is failure of justice. It is the failure on the part of the court to do justice. It is justice misapplied, misappreciated or misappropriated. It is an ill conduct on the part of the court which amounts to injustice. See Onagoruwa v.The State (1993) 7 NWLR (Pt. 303) 49. Miscarriage of justice arises in a decision or outcome of legal proceedings that is prejudicial or inconsistent with substantial right of a party. See Joshua v.The State (2000) 5 NWLR (Pt. 658) 591; Sanusi v. Ameyogun (1992) 4 NWLR (Pt. 237) 527.”PER NIKI TOBI, JSC
ORIGINATING SUMMONS – ORIGINATING SUMMONS IS APPROPRIATE IN THE CONSTRUCTION OR INTERPRETATION OF DOCUMENTS
“The procedure of originating summons ought not to be used where the facts are likely to be in dispute: See Theophilus Doherty v. Richard Doherty [1968] N.M.L.R. 241 and National Bank of Nigeria v. Ayodele Alakija [1978] 9 & 10 SC.59. The procedure of originating summons is the appropriate one to be used in a dispute as this where what is in dispute is the simple construction or interpretation of documents in respect of which pleadings are unnecessary: See Joseph Din v. Attorney-General of the Federation [1986] 1 N. W.L.R. (Part 17) at page 471.”PER G. A. OGUNTADE, JSC
REASONABLE TIME – MEANING OF REASONABLE TIME
“A reasonable time is also a moderately and practically possible time within which a court or tribunal could complete a trial and pronounce its decision. See Effiom v. State (1995) 1 NWLR (Pt. 373) 507. Reasonable time means the period of time which, in the search for justice, does not wear out the parties and their witnesses and which is required to ensure that justice is not only done but appears to reasonable person to be done. See Ariori v. Elemo (1983) 1 SCNLR 1; Chief Atejioye v. Ayeni (1998) 6 NWLR (Pt. 552) 132.”PER NIKI TOBI, JSC
ESSENCE OF FAIR HEARING – THE ESSENCE OF FAIR HEARING IS A HEARING WHICH IS FAIR TO PARTIES IN THE SUIT- SECTION 36 OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA
“The very essence of fair hearing under Section 36 of the Constitution of the Federal Republic of Nigeria 1999 is a hearing which is fair to both parties to the suit, be they plaintiffs or defendants or prosecution or defence. The section does not contemplate a standard of justice which is biased in favour of one party and to the prejudice of the other. Rather, it imposes an ambidextrous standard of justice in which the court must be fair to both sides of the conflict. The hearing must be fair and in accordance with the twin pillars of justice, read as pillars of justice, namely audi alteram partem and nemo judex in causa sua per Onu JSC at 421. See also Ndu v. State (1990) 7 NWLR (Pt. 164) 550”. PER G. A. OGUNTADE, JSC
CAUSE LIST- MEANINGOF A CAUSE LIST
“A Cause List in our jurisprudence is a list showing or indicating the cases to be taken by the court for the day. It includes the action to be taken in each case and counsel to do the cases. In respect of the action, the Cause List clearly indicates whether the case is for mention, motion, hearing or judgment”. PER NIKI TOBI, JSC
FAIR HEARING- MEANING OF FAIR HEARING
“Fair hearing, in essence, means giving equal opportunity to the parties to be heard in the litigation before the court. See INEC v. Alhaji Musa (2003) 3 NWLR (Pt. 806) 72, (2003) 1 SCM 62. Fair hearing means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties. See Ntukidem v. Oko (1986) 5 NWLR (Pt. 45) 909; Union Bank of Nigeria Limited v. Nwaokolo (1995) 6 NWLR (Pt. 400) 127. Fair hearing in relation to a case means the trial of a case or the conduct of he proceedings therein in accordance with the relevant laws, rules of court and principles of natural justice. See Ekpeto v. Wanogho (2004) 18 NWLR (Pt. 905) 394, (2004) 9-12 SCM (Pt. 2) 36. See also Brifina Ltd. v. Intercontinental Bank Ltd. (2003) 5 NWLR (Pt. 814) 540.” PER NIKI TOBI, JSC
PER NIKI TOBI, JSC(DISSENTING JUDGMENT): LOCUS STANDING – LOCUS STANDING IS A GROUND OF LAW AND NOT A GROUND OF FACT
“A ground on lack of standing is certainly a ground of law. It is not a ground of fact. Locus standi is a hard matter of law which must be donated either by section 6 of the Constitution or by any other enabling law.”PER NIKI TOBI, JSC
LOCUS STANDI – WHO HAS LOCUS STANDI TO COMMENCE AN ACTION?
“A party who is in imminent danger of any conduct of the adverse party has the locus standi to commence an action. See Olawoyin v. Attorney-General of Northern Region (1961) 1 All NLR 269; Gamioba v. Ezesi (1961) 1 All NLR 584; Olagunju v. Yahaya (1998) 3 NWLR (Pt. 542) 501.”PER NIKI TOBI, JSC
REASONABLE TIME – FACTORS THE COURT WILL TAKE INTO CONSIDERATION IN DEALING WITH THE CONCEPT OF REASONABLE TIME AS PROVIDED IN SECTION 36 OF THE CONSTITUTION
“Reasonable time in section 36 presupposes the granting of an adjournment in cases. In dealing with the reasonable time concept in section 36, the court will take into consideration the nature of the case in terms of the magnitude, intricacies, versatilities, complexities and volume of the work involved. In this respect, the court will consider the assemblage of witnesses and documents, if any and the likely or possible time to get all these. Above all, the court will take into consideration the procurement of exculpatory or inculpatory evidence as the case may be”. PER NIKI TOBI, JSC
ORIGINATING SUMMONS – WHERE DISPUTES ARE PERIPHERAL NOT MATERIAL TO THE LIVE ISSUES, AN ACTION CAN BE SUSTAINED BY ORIGINATING SUMMONS.
It is not the law that once there is dispute on facts, the matter should be commenced by writ of summons. No. That is not the law. The law is that the dispute on facts must be substantial, material, affecting the live issues in the matter. Where disputes are peripheral, not material to the live issues, an action can be sustained by originating summons. After all, there can hardly be a case without facts. Facts make a case and it is the dispute in the facts that give rise to litigation.”PER NIKI TOBI, JSC
ORIGINATING SUMMONS – WHEN CAN AN ACTION BE BROUGHT BY ORIGINATING SUMMONS
“An action could be brought by originating summons where the sole or principal question in issue is or is likely to be one of construction of a statute, or of any instrument made under a statute or of any deeds, will, contract, or other document or some other question of law”. PER NIKI TOBI, JSC
COMMENCEMENT OF COURT PROCESS – IMPROPRIETY OF A COURT PUNISHING A PARTY IN A STATE OF TENACITY ON WHEN TO COMMENCE A COURT PROCESS
“Parties in opposing litigation are never friends in the court and so are ready to take the slightest chance in their favour to defeat or destroy the case of the opponent. In so far as such a position is not against the law, a court of law cannot punish the party in such a state of tenacity on when to commence a court process.”PER NIKI TOBI, JSC
REASONABLE TIME- REASONABLE TIME IS A TIME JUSTIFIED BY REASON
“A reasonable time is a time justified by reason. Reasonable time in its nebulous content cannot be determined in vacuo but in relation to the fact of each case. This is because what constitutes a reasonable time in one case may not necessarily constitute a reasonable time in another case”. PER NIKI TOBI, JSC
CAUSE LIST- AIM OR OBJECTIVE OF THE CAUSE LIST
The business of the court is exact and so exactly put in the List. The aim or objective of the Cause List is to give notice in advance to the parties, the business of the day in respect of the case. It enables the parties and their counsel, if any, to prepare in advance. The parties should not be taken by surprise.”PER NIKI TOBI, JSC
PROOF OF THE OFFENCE OF FORGERY – STANDARD AND BURDEN OF PROOF REQUIRED IN AN OFFENCE OF FORGERY
“Forgery as an offence must be proved beyond reasonable doubt. In Domingo v. Queen (1963) 1 All NLR 81, this court held that one of the intents set out in section 465 of the Criminal Code must be proved. In the offence of forgery, the prosecution must prove that the document is a forgery and that it was forged by the accused. The prosecution must prove facts which will enable the court to infer mens rea. See Dr. Aina v. Jinadu (1992) 4 NWLR (Pt. 233) 91”. PER NIKI TOBI, JSC
ADDRESS OF COUNSEL – EFFECT OF FAILURE TO HEAR A PARTY’S ADDRESS
“In Ihom v. Gaji, this court also held that addresses form part of a case and failure to hear the address of one party, however overwhelming the evidence seems to be on one side, vitiates the trial, because in many cases, it is after the addresses that one finds the law on the issues fought not in favour of the evidence adduced.”PER NIKI TOBI, JSC
DENIAL OF FAIR HEARING – NATURE OF A COMPLAINT FOUNDED ON A DENIAL OF FAIR HEARING
“A complaint founded on a denial of fair hearing is an invitation to the court hearing the appeal to consider whether or not the court against which a complaint is made has been generally fair on the basis of equality to all the parties before it.”PER G. A. OGUNTADE, JSC
REFUSAL OF AN APPLICATION FOR ADJOURNMENT – INSTANCE WHERE AN APPELLATE COURT WILL INTERVENE ON THE REFUSAL OF AN APPLICATION FOR ADJOURNMENT BY A TRIAL COURT
“Where a refusal of an adjournment will amount to a denial of fair hearing, as in this case, an appellate court will intervene.Where a Judge wrongly exercises his discretion in refusing an application for adjournment, as in this case, the result is that the party applying for adjournment has been denied fair hearing. See Obeta v. Okpe (1996) 9 NWLR (Pt. 473) 401. Although a trial Judge has the judicial discretion either to grant or refuse an application for adjournment, he must, however, consider the application carefully, that is judicially and judiciously on its merits and state his reasons for his decision to grant or refuse it”. See Nigeria Bank for Commerce and Industry v. Marine and General Insurance Company Limited (1992) 2 NWLR (Pt. 371) 71; Effiom v.The State (1995) 1 NWLR (Pt. 373) 507; Opara v. Chinda (1996) 3 NWLR (Pt. 494) 496.”PER NIKI TOBI, JSC
VENUE FOR PROCUREMENT OF FACTS BY COUNSEL FROM A CLIENT – THE APPROPRIATE VENUE FOR PROCUREMENT OF FACTS BY A COUNSEL FROM A CLIENT IS IN HIS CHAMBERS
“It is a well established and accepted practice that counsel procure facts from a client in his chambers in the course of either pre-trial or trial interviews. I know of no practice where counsel procures facts from a client in the court premises.”PER NIKI TOBI, JSC
PRINCIPLE OF FAIR HEARING – FUNDAMENTAL BASIS UNDERLYING THE PRINCIPLE OF FAIR HEARING
“The fundamental basis underlying the principle of fair hearing is the doctrine of audi alteram partem which means to hear the other side. See ASTO v. Quorum Consortium Ltd. (2004) 1 NWLR (Pt. 855) 601. See also Ogundoyin v. Adeyemi (2001) 13 NWLR (Pt. 730) 403. Fair hearing, in other words, involves situations where, having regard to all the circumstances of a case, the hearing may be said to have been conducted in such a manner that an impartial observer will conclude that the court was fair to all the parties in the proceedings. See Somai Sonka Co. Nig. Ltd. v. Adzege (2001) 9 NWLR (Pt. 718) 312. PER NIKI TOBI, JSC
ADDRESSES BY COUNSEL – SECTION 294(1) OF THE CONSTITUTION CONTEMPLATE THE FILING OF FINAL ADDRESSES BY ALL THE PARTIES IN A CASE BEFORE THE DELIVERY OF THE JUDGMENT BY THE COURT
“Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 provides for final address. Perhaps it is better for me to state part of the ipsissima verba of the subsection:
“Every court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses…”PER NIKI TOBI, JSC
EXERCISE OF DISCRETION IN THE ADJOURNMENT OF MATTERS – DUTY OF A TRIAL JUDGE TO EXERCISE HIS DISCRETION IN THE ADJOURNMENT OF MATTERS JUDICIALLY AND JUDICIOUSLY
“A trial Judge has not the unfettered discretion in the adjournment of matters. He must exercise his discretion judicially and judiciously. An appellate court will intervene if he does not exercise his discretion judicially and judiciously. See University of Lagos v. Aigoro (1980) 1 NWLR (Pt. 1) 143; Ebong v. Reicon Company Limited (1998) 4 NWLR (Pt. 547) 655; Chief Akpan v. Ekpo (2001) 5 NWLR (Pt. 707) 50”. PER NIKI TOBI, JSC
GROUND OF APPEAL- A GROUND OF APPEAL FROM WHICH NO ISSUE IS FORMULATED IS INCOMPETENT
“As issues are formulated from grounds of appeal, Ground 4 which is not ventilated by any issue is incompetent. See Idika v. Erisi (1988) 2 NWLR (Pt. 78) 563; Management Enterprises Ltd. v. ABC Merchant Bank (1996) 6 NWLR (Pt. 452) 429; General Oil Limited v. Chief Ogunyade (1997) 4 NWLR (Pt. 501) 613; Chinwuba v. Alade (1997) 6 NWLR (Pt. 507) 85; Madumere v. Okafor (1996) 4 NWLR (Pt. 445) 637.”PER NIKI TOBI, JSC
DETERMINATION OF LOCUS STANDI- A PLAINTIFF MUST ESTABLISH THAT HE HAS SUFFICIENT INTEREST IN THE SUIT IN ORDER TO HAVE LOCUS STANDI TO SUE
“It is the law that to have locus standi to sue, the plaintiff must show sufficient interest in the suit or matter. One criterion of sufficient interest is whether the party could have been joined as a party in the suit. Another criterion is whether the party seeking the redress or remedy will suffer some injury or hardship arising from the litigation. If the Judge is satisfied that he will so suffer, then he must be heard as he is entitled to be heard. See Chief Ojukwu v. Governor of Lagos State (1985) 2 NWLR (Pt. 10) 806; Busari v. Oseni (1992) 4 NWLR (Pt. 237) 557; Albian Construction Co Ltd. v. Rao Investment and Property Ltd. (1992) 1 NWLR (Pt. 219) 583; United Bank for Africa Ltd. v. Obianwu (1999) 12 NWLR (Pt. 629) 78”. PER NIKI TOBI, JSC
DENIAL OF A PARTY’S RIGHT TO FAIR HEARING –WHETHER OR NOT A PERSON HAS BEEN DENIED THE RIGHT TO FAIR HEARING IS JUDGED BY THE NATURE AND CIRCUMSTANCES SURROUNDING A PARTICULAR CASE
“The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case. The crucial determinant is the necessity to afford the parties equal opportunity to put their case to the court before the court gives its judgment. PER G. A. OGUNTADE, JSC
FAIR HEARING – SCOPE AND ATTRIBUTES OF FAIR HEARING
“In Kotoye v. Central Bank of Nigeria (1989) 1 NWLR (Pt. 98) 419, this court held as follows: (1) Fair hearing is fair trial and it implies that every reasonable and fair minded observer who watches the proceedings should be able to come to the conclusion that the court or other tribunal has been fair to all the parties concerned. (2) The basic criteria and attributes of fair hearing include: (a) that the court or tribunal 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; (b) that the court or tribunal shall give equal treatment, opportunity and consideration to all concerned; (c) that the proceedings shall be heard in public and all concerned shall have access to and be informed of such a place of public hearing and (d) 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.”PER NIKI TOBI, JSC
DUTY OF A JUDGE AS THE MASTER OF THE COURT- THE JUDGE AS THE MASTER OF THE COURT IS REQUIRED TO DO THE CORRECT THING AS REQUIRED BY LAW
“I should say that as the master of the court, the law requires him to do the correct thing as required by law. He cannot do the wrong thing and beat his chest by saying that “after all, I am the master and therefore not answerable to any other person, apart from myself.” No. That is not correct. Although as a master, the trial Judge is in full control of his court, an appellate court will order him to hold the brakes where he goes wrong in the interpretation of the law or where he fails or refuses to follow the rules of his court.”PER NIKI TOBI, JSC
JUDGMENT GIVEN WITHOUT COMPLIANCE WITH THE RULES OF COURT- A JUDGMENT GIVEN WITHOUT COMPLIANCE WITH RULES OF THE COURT WHICH HAS BREACHED THE FUNDAMENTAL HUMAN RIGHT OF FAIR HEARING OF A PARTY MUST BE SET ASIDE
“In Okafor v. Attorney-General and Commissioner for Justice (1991) 6 NWLR (Pt. 2000) 659, this court held that a judgment which is given without compliance with rules of court and which non-compliance has breached a fundamental human right such as the right to fair hearing, is a nullity and is capable of being set aside either by the court that gave it or by an appellate court. See also Military Governor Imo State v. Nwauwa (1997) 2 NWLR (Pt. 490) 675.”PER NIKI TOBI, JSC
GRANT OR REFUSAL OF AN ADJOURNMENT -DISCRETIONARY POWER OF THE COURT IN THE GRANT OR REFUSAL OF AN ADJOURNMENT
“The court must balance its discretionary power to grant or refuse an adjournment with its duty to endeavour to give an appellant the opportunity of obtaining substantial justice in the sense of his appeal being granted a fair hearing on its merits provided always that no injustice is thereby caused to the other party and where the court erred in its balancing exercise an appeal court is at liberty to interfere. See University of Lagos v. Aigoro (supra). See also Chief Ntukidem v. Chief Oko (1986) 5 NWLR (Pt. 45) 909; Demuren v. Asuni (1967) 1 All NLR 94; Agbolohun v. Balogun (1990) 2 NWLR (Pt. 134) 576”. PER NIKI TOBI, JSC
BINDING NATURE OF RECORDS OF APPEAL- APPELLATE COURTS ARE BOUND BY THE RECORDS OF APPEAL
“Appellate courts are bound by the Record. They cannot add to the Record what is not there and they cannot subtract from the Record what is there.”PER NIKI TOBI, JSC
CAUSE LIST – A TRIAL JUDGE MUST OBEY THE CAUSE LIST
“A trial Judge, or an appellate Judge, must obey the Cause List in the sense that he must not go outside the action to be taken in each case. Where a case is for hearing of motion, the trial Judge must hear the motion and adjourn for any other process. On no account should he hear a motion and hear the merits of the matter, not to talk about delivering judgment. He may consider doing that in the very rare circumstance of consent by parties.”PER NIKI TOBI, JSC
CASES CITED
1. Ugwu & Anor. v. Araraume & Anor [2007] 6 S.C. (Pt. 1) 88, [2007] 12 SCM, (Pt. 2) 646 2. Amaechi v. INEC & Ors. (2008) 1SC. (Pt. 1) 36, (2008) 1 SCM, 26. 3. Mohammed v. Kano N.A. [1968] All N.L.R. 411 at 413 (Reprint) 4. Doherty v. Richard Doherty [1968] N.M.L.R. 241 5. National Bank of Nigeria v. Ayodele Alakija [1978] 9 & 10 SC.59 6. Joseph Din v. Attorney-General of the Federation [1986] 1 N. W.L.R. (Part 17) at page 471
STATUTES REFERRED TO
Constitution of the Federal Republic of Nigeria, 1999Electoral Act, 2006Federal High Court (Civil Procedure Rules) 2000High Court of Plateau state (Civil Procedure) Rules, 1987
