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February 2, 2015NATIONAL JUDICIAL COUNCIL v. HON. JUSTICE IYABO YERIMA & ANOR
{Court of Appeal – Abuja Division}
LEGALPEDIA ELECTRONIC CITATION: LER[2014]CA/A/523/2011
LEGALPEDIA ELECTRONIC CITATION: LER[2014]CA/A/523/2011
Areas of Law:
FAIR HEARING, ACTION, PRACTICE AND PROCEDURE
FAIR HEARING, ACTION, PRACTICE AND PROCEDURE
Summary of Fact
Two petitions were written against the 1st Respondent in her capacity as a judge of the Oyo State Judiciary. Both petitions raised allegations bordering on corruption and incontinent behaviour. Upon receipt of the petitions the Appellant notified the 1st Respondent and requested her to respond in writing which she complied with. The Appellant thereafter set up an investigation committee to investigate the allegations in the petition. The committee in its report recommended her for removal from office. This was accepted by the Appellant who wrote to the 2nd Respondent accordingly. Consequently, the 1st Respondent instituted this action in the Federal High Court, seeking some reliefs which were granted and declared the recommendation of the 1st Appellant for removal of the 1st Respondent from her office as a judge illegal, unlawful and unconstitutional on account of violation of her right to fair hearing. Aggrieved by the decision of the lower court, the Appellant has appealed to this court.
Held
Appeal Dismissed
Issues for Determination
- Whether having regard to the facts of this case as disclosed in the pleadings and evidence led, the trial court was correct when it held that the plaintiff was not afforded a fair hearing by the investigation committee of the appellant,
- Whether having regard to the pleadings filed especially the plaintiff’s statement of claim, and the 1st defendant’s statement of defence, the trial court was right in allowing the 1st defendant (sic; 2nd defendant) to lead evidence in the way and manner it did throughout the trial and whether such evidence led did not embarrass the 1st defendant and unduly prejudice its case”.
Rationes
ISSUES – ISSUES BETWEEN PARTIES ARE CIRCUMSCRIBED AND DETERMINED BY THE PLEADINGS OF THE PARTIES
“In a suit commenced by writ of summons, as the instant case, issues between parties are circumscribed and determined
by the pleadings of the parties. This enables the parties and the court to know the exact case they have to meet at the hearing. See Noibi V. Fikolati (1987) 3 SC 105, 119”. PER J.E.EKANEM, J.C.A
ISSUE OF FACT – WHEN DOES AN ISSUE OF FACT ARISE?
“An issue of fact arises in such a case where by the pleadings of the parties a material fact is affirmed by one of the parties but is properly denied or traversed by the opposite side. This is then what goes to trial. See Messrs Lewis and Peat (NRI) Ltd V. Akhimien (1976) 1 ALL NLR (1) 460, 465 and Akintola V. Solano (1986) 4 SC 141, 188 – 189” PER J.E.EKANEM, J.C.A
FAIR HEARING IS GUARANTEED BY THE CONSTITUTION – SECTION 36(1) OF THE CONSTITUTION OF NIGERIA 1999
The provision of section 36(1) of the Constitution of Nigeria 1999 (as amended) reads as follows:
“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 a manner as to secure its independence and impartiality”. PER J.E.EKANEM, J.C.A
“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 a manner as to secure its independence and impartiality”. PER J.E.EKANEM, J.C.A
AUDI ALTEREM PARTEM AND NEMO JUDEX IN CAUSA SUA – AUDI ALTEREM PARTEM AND NEMO JUDEX IN CAUSA SUA APPLIES TO COURTS AND ADMINISTRATIVE BODIES
“The above provision gives constitutional flavour to the twin pillars of natural justice, viz, (a) Audi alterem Partem and (b) Nemo Judex in causa sua. They apply not only to courts of law or tribunals but also to administrative bodies, such as the appellant’s investigation committee, that exercise judicial functions in the sense that they have to decide on materials before them “between an allegation and a defence”. Such bodies are required to act fairly.See Hart V. Military Government Of Rivers State (1976) 11 SC 211, Legal Practitioners Disciplinary Committee V. Fawehinmi (1985) 7 SC 178, 251 and Adigun V. Attorney-General Of Oyo State (1987) 1 NWLR (53) 678.”PER J.E. EKANEM, J.C.A
FAIR HEARING – WHAT CONSTITUTES FAIR HEARING?
“To constitute a fair hearing whether it be before the regular courts or before Tribunals and Boards of Inquiry, the person accused should know what is alleged against him; he should be present when any evidence against him is tendered; and he should be given a fair opportunity to correct or contradict such evidence.” PER J.E. EKANEM, J.C.A
OFFICE OF THE ATTORNEY GENERAL – STATUS OF THE OFFICE OF THE ATTORNEY GENERAL
“The office of the Attorney General of a state is provided for in section 195(1) of the Constitution of Nigeria 1999 (as amended). Its provision makes it clear that it is a corporation sole with a separate and distinct personality from the natural person who for the time being holds the office. See Carlen (Nigeria) Limited V. University of Jos (1994) 1 NWLR (323) 631, 656 and Attorney-General Of The Federation V. All Nigeria Peoples Party (2004) 114 LRCN 2671, 2687.”PER J.E. EKANEM J.C.A
FAIR HEARING -TEST OF FAIR HEARING
“The ultimate 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 in the case”. See Mohammed V. Kano Native Authority (1968) 1 ALL NLR 422 and Adigun Attorney-General Of Oyo State supra. 719. What is oppressive cannot be said to be fair”. PER J.E. EKANEM J.C.A
FAIR HEARING – FAIR HEARING DEMANDS THAT A PERSON MUST BE GIVEN A FAIR OPPORTUNITY TO CROSS
EXAMINE HER ACCUSERS
“Fair hearing requires that a person must be given not only an opportunity but a fair opportunity to cross- examine her accusers. See Garba V. University Of Maiduguri (1986) 1 NWLR (18) 550, 618,”PER J.E. EKANEM J.C.A
FAIR HEARING – FAIR HEARING UNDER SECTION 36(1) OF THE 1999 CONSTITUTION
“In the recent case of Adewunmi V. Nigerian Eagle Flour Mills (2014) 14 NWLR (1428) 443, 458, DONGBAN-MENSEM, JCA, Stated that,
“A procedure where an accuser is shielded from the accused all through the inquiry is certainly not one in compliance with natural justice. Presence and direct confrontation has a lot of impact……” It has also been held that, “……. fair hearing in the context of Section 36(1) of the 1999 Constitution encompasses fair hearing in the narrow technical sense of the twin pillar of justice, that is audi alterem partem and nemo judex in causa sua, as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so“. See Etim V. Registered Trustees of Presbyterian Church of Nigeria (2004) 11 NWLR (883) 79, 92.” PER J.E. EKANEM J.C.A
Statues Referred To:
“A procedure where an accuser is shielded from the accused all through the inquiry is certainly not one in compliance with natural justice. Presence and direct confrontation has a lot of impact……” It has also been held that, “……. fair hearing in the context of Section 36(1) of the 1999 Constitution encompasses fair hearing in the narrow technical sense of the twin pillar of justice, that is audi alterem partem and nemo judex in causa sua, as well as in the broad sense of what is not only right and fair to all concerned but also seems to be so“. See Etim V. Registered Trustees of Presbyterian Church of Nigeria (2004) 11 NWLR (883) 79, 92.” PER J.E. EKANEM J.C.A
Statues Referred To:
Constitution of the Federal Republic of Nigeria 1999 (as amended)
Evidence Act, 2011
THE GOVERNOR OF OYO STATE VS. HON. JUSTICE IYABO YERIMA & ANOR
{Court of Appeal – Abuja Division}
LEGAPEDIA ELECTRONIC CITATION: [LER]2014CA/A/523B/2011
LEGAPEDIA ELECTRONIC CITATION: [LER]2014CA/A/523B/2011
Areas of Law:
FAIR HEARING, ACTION, PRACTICE AND PROCEDURE, LEGAL PRACTITIONER, JUDGEMENT
Summary of Facts
Two petitions were written against the 1st Respondent in her capacity as a judge of the Oyo State Judiciary. Both petitions raised allegations bordering on corruption and incontinent behavior. Upon receipt of the petitions the 2nd Respondent notified the 1st Respondent and requested her to respond in writing which she complied with. Thereafter an investigation committee set up to investigate the allegations in the petition. The committee in its reportsuspended the 1st Respondent, and recommended her compulsory retirement.
Consequently, the 1st Respondent instituted this action in the Federal High Court, seeking a declaration that the recommendation of the 1st Defendant based on its investigation is illegal, unlawful and unconstitutional on account of violation of her right to fair hearing; a declaration that the Attorney-General of Oyo State, Adebayo Shittu, Esq., not being the writer of the petition to which the 1st Defendant panel adjudicated upon and allowing the said Attorney-General to be a substituted complainant is null and void, unconstitutional and of no effect; and an order setting aside the report/recommendation of the 1st Defendant to the 2nd Defendant for gross infringement of the Plaintiff’s Fundamental Human Right to fair hearing, among other reliefs. The Court granted all the reliefs sought. Dissatisfied with the decision of the lower court, the Appellant has appealed to this court.
Consequently, the 1st Respondent instituted this action in the Federal High Court, seeking a declaration that the recommendation of the 1st Defendant based on its investigation is illegal, unlawful and unconstitutional on account of violation of her right to fair hearing; a declaration that the Attorney-General of Oyo State, Adebayo Shittu, Esq., not being the writer of the petition to which the 1st Defendant panel adjudicated upon and allowing the said Attorney-General to be a substituted complainant is null and void, unconstitutional and of no effect; and an order setting aside the report/recommendation of the 1st Defendant to the 2nd Defendant for gross infringement of the Plaintiff’s Fundamental Human Right to fair hearing, among other reliefs. The Court granted all the reliefs sought. Dissatisfied with the decision of the lower court, the Appellant has appealed to this court.
Held
Appeal dismissed
Issues for Determination
- Whether having regard to the circumstances of the purported withdrawal of the petition filed by Mr. Adebayo Shittu, the said petition could be said to have been validly withdrawn by Mr. Michael Lana.
- Whether the trial Judge did not misconceive the case and misdirected himself when he held that the Committee for Defence of the Rule of Law is a faceless society.
- Whether having regard to the fact and evidence as well as the entire proceedings of the investigation panel, the Plaintiff/Respondent could be said to have been denied fair hearing”.
Rationes
OFFICE OF THE ATTORNEY-GENERAL OF A STATE – STATUS OF THE OFFICE OF THE ATTORNEY GENERAL OF A STATE
“It follows therefore that the Attorney-General of a State is a corporation sole recognized by the Constitution and the law of the land as having a personality which is distinct from the separate personality of the individual holder for the time being of that office. See Carlen (Nig) Ltd V. University of Jos (1994) 1 NWLR (323) 631, 656 and Attorney-General of The Federation V. All Nigeria Peoples Party (2004) 114 LRCN 2671, 2687-2688. The office acts through the natural person who holds that office for the time being or a person delegated by him in respect of a particular function that can be delegated. See Attorney-General of Kaduna State V. Hassan (1985) 2 NWLR (8) 483”. PER J.E. EKANEM, JCA.
LEGAL REPRESENTATION – THE LAW PRESUMES LEGAL REPRESENTATION BY A COUNSEL WHERE THE COUNSEL APPEARS FOR A PARTY
“When a counsel appears for a party as did Mr. Adebayo Shittu, the law presumes that he was duly briefed by those he claims to represent. See Shona – Jackson Ltd V. Omega Air Ltd (2006) 1 NWLR (960) 1, 34. However, the presumption is rebuttable and this arises only when there is clear evidence from the client concerned that counsel was not instructed to appear for him or was debriefed. See Buhari v. Yabo (2006) 17 NWLR (1007) 162, 177”. PER J.E. EKANEM, JCA.
ERROR OR MISDIRECTION IN JUDGMENT – WHETHER EVERY ERROR OR MISDIRECTION WILL LEAD TO THE REVERSAL OF THE JUDGMENT
“It is not every error or misdirection that will lead to a reversal of the judgment of a court. It is only where the error or misdirection affected the judgment in a way that is crucial to the decision that the judgment will be reversed. See Egbunike V. African Continental Bank Ltd(1995) 2 NWLR (375) 34, 56. PER J.E. EKANEM, JCA
AUDI ALTEREM PARTEM AND NEMO JUDEX IN CAUSA SUA – AUDI ALTEREM PARTEM AND NEMO JUDEX IN CAUSA SUA APPLIES TO ADMINISTRATIVE BODIES
“The provision gives constitutional flavour to the twin pillars of natural justice, viz; (a) audi alterem partem and (b) Nemo judex in causa sua. It applies not only to courts of law or tribunals but also to administrative bodies, such as the 2nd respondent’s investigation committee, that exercise judicial functions in the sense that they have to decide on materials before them “between an allegation and a defence”. Such bodies are required to act fairly.See Hart V. Military Government of Rivers State (1976) 11 SC 111, Legal Practitioners Disciplinary Committee V. Fawehinmi (1985) 7 SC 178, 251 and Adigun V. Attorney-General of Oyo State (1987) 1 NWLR (53) 678”. PER J.E. EKANEM, JCA.
FAIR HEARING – WHAT DOES FAIR HEARING ENTAIL?
“Fair hearing, it must be stated, involves not only the twin pillars of justice – audi alterem partem and nemo judex in causa sua but also, in its broad sense, what is not only right and fair to all concerned but also seems to be so. See Etim V. Registered Trustees Of Presbyterian Church Of Nigeria (2004) 11 NWLR (883) 79, 92”. PER J.E. EKANEM, JCA.
FAIR HEARING -TEST OF FAIR HEARING
“The ultimate 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 in the case”. PER J.E. EKANEM, JCA
Statues Referred To:
Constitution of Nigeria 1999 (as amended)
Interpretation Act Cap 123 Laws of the Federation of Nigeria
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PLATEAU STATE GOVERNMENT & ANOR v. CHIEF HARRY AKANDE & ANOR
{Court of Appeal – Abuja Division}
LEGALPEDIA ELECTRONIC CITATION LER[2014]CA/A/11/2013(R1)
Area of Law:
PRACTICE AND PROCEDURE
Summary of Fact
The Applicant/Appellant filed this application to Order 6 Rules 4 and 15 and Order 7 Rules 1 and 2 of the rules of this court seeking for an order granting leave to file additional ground of appeal out of time, an order granting leave to amend the notice and ground of appeal, an order granting leave to file the appellant’s brief of argument out of time, and an order deeming the applicant’s process as filed.
Held
Application Granted
ISSUE FOR DETERMINATION
Whether the appellant/applicants’ motion for leave to amend the sole ground of appeal in respect of their appeal against the post judgment ruling of the lower court dated 29th day of April, 2013, and ancillary prayers to regularize appellants’ brief is misconceived and liable to dismissal.
Ratio
SUBSTANTIAL JUSTICE – DUTY OF THE COURT IN ENSURING SUBSTANTIAL JUSTICE
“This court has always found it wise not to place impediments or obstacles in front of parties seeking to appeal, as long as seriousness is exhibited, to the satisfaction of the court, in the effort to seek redress. That is the only way to ensure substantive justice as opposed to technical justice; this is what informed the decision of the Supreme Court in Ezekiel Nneji & Ors V Chief Nwankwo Chukwu & Ors. (1988) LPELR-2058 (SC), where it held:
“the court must balance the application of its discretionary power to grant or refuse an application to dismiss an appeal for non compliance with the rules of that court, with its duty of giving an appellant the opportunity of obtaining substantial justice by granting him fair hearing in the appeal when that is considered expedient on the face of the materials before it…”PER M. MUSTAPHA, J.C.A
Statues Referred To:
None
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WARRANT OFFICER BANNI YAKUBU VS NIGERIAN ARMY
{Court of Appeal – Abuja Division}
LEGALPEDIA ELETRONIC CITATION:[LER]2014CA/A/82C/2010
LEGALPEDIA ELETRONIC CITATION:[LER]2014CA/A/82C/2010
Areas of Law:
CRIMINAL LAW, APPEAL, LAW OF EVIDENCE
Summary of Fact
The Appellant and one other person were charged in the General Court Martial for conspiracy contrary to Section 517 of the Criminal Code Act, which is punishable under Section 114 of the Armed Forces Act 2004. It was the Respondent’s case that the Appellant and the co-accused person conspired with two other persons to get them promoted knowing full well that it was an offence to do so. The Appellant and his co-accused pleaded not guilty to the charge but the General Court Martial found them guilty and reduced the Appellants rank to a Corporal in its sentence. Dissatisfied with the decision of the General Court Martial, the Appellant lodged an appeal in this Court of Appeal.
Held:
Appeal Allowed
Issue for Determination:
Whether in view of the evidence before the General Court Martial, it was right in law to give the verdict of guilt against the appellant
Rationes:
RESPONDENT’S NOTICE – A RESPONDENT WHO HAS NOT FILED A RESPONDENT’S NOTICE OR A CROSS-APPEAL CANNOT FRAME ISSUES OUTSIDE THE GROUNDS OF APPEAL
“A respondent who has not filed a respondent’s notice or a cross-appeal cannot frame issues outside the grounds of appeal. What the respondent has done in respect of the issues under consideration is to couch a preliminary objection or an objection to grounds of appeal as an issue for determination in the appeal. This is incompetent and must be struck out. See Arum V. Nwobodo (2013) 10 NWLR (1362) 374, 396 and Ayoade V. Spring Bank Plc (2014) 4 NWLR (1396) 93, 122..” PER J.E.EKANEM, J.C.A.
OFFENCE OF CONSPIRACY – WHEN IS THE OFFENCE OF CONSPIRACY CONSTITUTED?
“The offence of conspiracy consists not merely in the intention of two or more persons but in the agreement of two or more to do an unlawful act or to do a lawful act by an unlawful means. Where two or more persons agree to carry out an unlawful act that by itself constitutes the offence of conspiracy. See Oduneye V. State (2001) 13 WRR 88 and Shurumo V. State (2010) 19 NWLR (1226) 73, 104 and Ngume V. Attorney-General of Imo State (2014) 7 NWLR (1405) 119, 150”. PER J.E.EKANEM, J.C.A
CONSPIRACY – ELEMENTS OF CONSPIRACY
“The following elements must be present to constitute conspiracy;
(i) An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal but by illegal means.
(ii) Where the agreement is other than an agreement to commit an offence that some act besides the agreement was done by one or more of the parties in furtherance of the agreement.
(iii) Specifically that either of the accused persons individually participated in the conspiracy.
See State V. Salawu (2011) 18 NWLR (1279) 580, 614 and Yakubu V.State (2014) 8 NWLR (1408) 111, 123.” PER J.E.EKANEM, J.C.A
(i) An agreement between two or more persons to do or cause to be done some illegal act or some act which is not illegal but by illegal means.
(ii) Where the agreement is other than an agreement to commit an offence that some act besides the agreement was done by one or more of the parties in furtherance of the agreement.
(iii) Specifically that either of the accused persons individually participated in the conspiracy.
See State V. Salawu (2011) 18 NWLR (1279) 580, 614 and Yakubu V.State (2014) 8 NWLR (1408) 111, 123.” PER J.E.EKANEM, J.C.A
OFFENCE OF CONSPIRACY – THERE CAN BE NO OFFENCE OF CONSPIRACY IF THE AGREEMENT IS NOT TO DO AN UNLAWFUL OR ILLEGAL ACT
“There can be no offence of conspiracy if the agreement is not to do an unlawful or illegal act, which is an offence or if the means agreed upon to do a lawful act is not unlawful. The burden of proof is always on the prosecution to prove its case beyond reasonable doubt since Section 36 (5) of the Constitution of Nigeria 1999 (as amended) presumes an accused person to be innocent until the contrary is proved.” PER J.E. EKANEM, J.C.A
PROOF OF CONSPIRACY – CONSPIRACY IS PROVED BY CIRCUMSTANTIAL EVIDENCE AND INFERENCE FROM PROVED FACTS
“Conspiracy is rarely proved by direct evidence but by circumstantial evidence and inference from proved facts”. PER J.E.EKANEM, J.C.A
PROOF OF CRIMINAL ALLEGATION – CRIMINAL ALLEGATION IS REQUIRED TO BE PROVED BEYOND REASONABLE DOUBT
”A criminal allegation is required to be proved beyond reasonable doubt under Section 135(3) of the Evidence Act, 2011 (as amended). It makes no difference that the criminal trial is in a regular court of law, a court-martial or a general court-martial,” PER M.A.A. ADUMEIN, J.C.A.
Statues Referred To:
Armed Forces Act Cap. A 20 LFN 2004.
Constitution of Nigeria 1999 (as amended)
Criminal Code Act
Evidence Act, 2011 (as amended).
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