Legalpedia Citation: (2015) Legalpedia (CA) 78161

In the Court of Appeal

HOLDEN AT ABUJA

Thu Sep 17, 2015

Suit Number: CA/A/EPT/476/2015

CORAM

ABUBAKAR DATTI YAHAYA JUSTICE, COURT OF APPEAL

TANI YUSUF HASSAN JUSTICE, COURT OF APPEAL

MOHAMMED MUSTAPHA JUSTICE, COURT OF APPEAL

PARTIES

HON. KUFREABASI BASSEY ETUK

ALL PROGRESSIVE CONGRESS

 

APPELLANTS

ANIEKAN ETIM BASSEY

PEOPLES DEMOCRATIC PARTY (PDP)

INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

 

RESPONDENTS

AREA(S) OF LAW

APPEALS, ELECTORAL LAW, CONSTITUTIONAL LAW, CIVIL PROCEDURAL LAW, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The election into the Akwa Ibom House of Assembly for Uruan State Constituency conducted by the 3rd Respondent had the 1st and 2nd Respondents declared as winners. The Appellants dissatisfied with the declaration, challenged same at the Akwa Ibom House of Assembly Election Tribunal. Parties exchanged pleadings, and the matter was adjourned for commencement of pre hearing. The matter was adjourned severally and subsequently, the 1st Respondent filed his application seeking leave to argue his motion for dismissal of the petition for lack of jurisdiction. When the matter came up for hearing, the Appellant’s counsel informed the Tribunal that they have just been served with the motion and would require time to respond, the Tribunal consequently ruled that the motion was not ripe for hearing but that the hearing of the petition should proceed. The Appellants were unprepared on account of their witnesses not being in court; hence the petition was struck out for failure of the Appellant to give reason for the absence of their witnesses. Being dissatisfied with the decision of the Tribunal, the Appellants have lodged an appeal before this court.

HELD

Appeal Dismissed.

ISSUES

Whether in the entire circumstance of the case, the Honorable Tribunal was fair to the appellants in striking out their petition?

RATIONES DECIDENDI

FAIR HEARING – THE PRINCIPLE OF FAIR HEARING

The principle of fair hearing is fundamental to all court procedure and proceedings, and like jurisdiction, the absence of it vitiates the proceedings no matter how well conducted; but having said that it is equally important to bear in mind that fair hearing is a double-edged sword and it cuts both ways, appellants have a right to a fair hearing, and fair hearing implies also that the respondent as plaintiff is entitled to have his case determined within a reasonable time. The right of the two parties must be balanced; one cannot be sacrificed to the other without perverting justice; see MFA & ORS V INONGHA(2014) LPELR 22101-SC. PER – MOHAMMED MUSTAPHA, JCA.

DISCRETION – THE POSITION OF THE LAW ON EXERCISE OF DISCRETION BY A TRIAL COURT

It is only where a trial or lower court exercised discretion under a wrong principle or mistake of law or under a misapprehension of the facts or took into account irrelevant or extraneous matters or excluded relevant matters, thereby giving rise to injustice, that an appellate court will not abdicate its duty to interfere with the exercise of that discretion in order to correct or prevent the injustice; see T.S.A INDUSTRIES LTD V KEMA INVESTMENT LTD (2006)2 NWLR part 964 PAGE 300. PER – MOHAMMED MUSTAPHA, JCA.

ALLEGATION OF BIAS – THE POSITION OF THE LAW ON COUNSELS ALLEGING BIAS BY A COURT

It is very important for learned counsel to be careful when alleging bias, by a court, because it is a very serious allegation, with serious consequences where the allegation is proved right; an allegation of bias should never be speculative, conjectural or capricious. PER – MOHAMMED MUSTAPHA, JCA.

RIGHT TO FAIR HEARING – WHETHER OR NOT A PARTY WHO NEGLECTS TO TAKE ADVANTAGE OF A FAIR HEARING PROCESS CAN ACCUSE THE COURT OF DENYING HIM FAIR HEARING

Having said that it is very clear to us, from the record of appeal, as cited severally, that the petitioners counsel were in court, and were given the opportunity to present their case but they failed, or refused to do so, as they refused to proceed on account of none availability of their witnesses. But most importantly they failed to tell the court why their witnesses were not in court, in a matter where time is of essence, thus leading to the striking out of their petition.

It therefore, cannot be rightly contended that the appellant’s right to fair hearing was breached; the case of INAKOJU AND ORS. v. ADELEKE & ORS is apt and tits into this matter. It is to the effect that a court’s duty is to create the environment for a fair hearing of a case. It is not the business of the court to make sure that a party takes advantage of the environment or atmosphere by involving himself in the fair hearing of the case. A party who refuses or neglects to take advantage of the atmosphere of fair hearing process cannot turn around to accuse the court of denying him fair hearing. This is not fair to the court; In NEWSWATCH COMMUNICATIONS LTD. v. ATTAH (2006) vol. 139 the Supreme Court held thus:-

“A party complaining that he has been denied the right of fair hearing under Section 33 of the 1979 Constitution ought to remember that in Civil Cases, a balance has to be struck between the Plaintiffs right to have his case heard expeditiously and the Defendant’s right to put across his defence to Plaintiffs suit. Where a party has been afforded the opportunity to put across his defence and he foils to take advantage of such opportunity, he cannot later turn around to complain that he was denied a right to fair hearing.”

Accordingly, the sole issue for determination by this court is hereby resolved in favour of the respondents, and against the appellants; having resolved the issue for determination against the appellants the appeal lacks merit and is accordingly dismissed. PER – MOHAMMED MUSTAPHA, JCA.

FAIR HEARING – WHETHER OR NOT A TRIBUNAL CAN BE BLAMED WHERE A PETITIONER GIVEN A OOPORTUNITY TO PRESENT HIS CASE FAILS TO DO SO

It is uncharitable to blame the Tribunal for a pre-determined stance, when the Petitioners were given the opportunity to present their case but they failed to avail themselves of the opportunity. PER – ABUBAKAR DATTI YAHAYA, JCA.

 

CASES CITED

Not available.

STATUTES REFERRED TO

Constitution of Federal Republic of Nigeria1999 (as amended)Electoral Act 2010 (as amended)|

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