CORAM

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UGOCHUKWU ANTHONY OGAKWU JUSTICE OF THE COURT OF APPEAL

JAMILU YAMMAMA TUKUR JUSTICE OF THE COURT OF APPEAL

JAMES GAMBO ABUNDAGA JUSTICE OF THE COURT OF APPEAL

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PARTIES

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1. OKINO ALOYSIUS ADEIZA

2. PEOPLES DEMOCRATIC PARTY (PDP)

 

APPELLANTS 

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1. INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC)

2. ALL PROGRESSIVES CONGRESS (APC)

3. SANNI EGIDI ABDULRAHEEM

 

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, ELECTION, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellants were the Petitioners before the Tribunal and they brought an Election Petition against the return of the 3rd Respondent as duly elected in the House of Representatives election conducted on 25th February, 2023, in respect of the Ajaokuta Federal Constituency. After the conduct of the pre-hearing by the Tribunal, the Appellants were given five days to present their case. On the first of the five days, the learned counsel for the Appellants applied for an adjournment which was granted, and the Tribunal stated the Appellants had four days remaining to present their case and that if on the next date they still fail to field their witnesses that the Petition will be dismissed. On the adjourned date, the Appellants, their counsel, and their witnesses were absent, whereupon the Tribunal dismissed the Petition for having been abandoned. ​The Appellants were dissatisfied with the decision of the Tribunal, and they appealed against the same.

 

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HELD

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Appeal allowed

 

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ISSUES

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Whether the lower Tribunal can raise an issue suo motu and determine same suo motu against a party before the Court without hearing address(es) from parties present before the Court?

Whether the lower Tribunal had denied the Appellants their right to a fair hearing of their petition when it dismissed same on the 1st of June, 2023 when the same Tribunal had allotted to the Appellant five days (adjournment) to prove their case?

Whether the lower Tribunal denied the Appellants’ the statutory fair hearing when it failed to issue and serve the Appellants or their counsels the statutory FORM TF 005 in compliance with the provisions of the extant Electoral Act 2022?

 

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RATIONES DECIDENDI

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OBJECTION – HOW TO ARGUE AN OBJECTION TO A GROUND OF APPEAL

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It seems to be settled law that an objection to a ground of appeal or an issue for determination cannot merely be argued under an issue distilled for determination in the appeal. Since the objection is only against one of the grounds of appeal and an issue distilled for determination, the 3rd Respondent ought to have raised his objection by a Motion on Notice. In BUNGUDU vs. YARO (2022) LPELR (58300) 1 at 3-5 this Court, inter alia, held that: “It is apt to state that Respondent’s first issue for determination is a challenge to the competence of ground 2 of the grounds of appeal. I hasten to declare the issue as incompetent on the well settled law that an issue for determination cannot be used to challenge the competence of an appeal. In other words, a preliminary objection cannot be raised as an issue for determination … This rule in my humble view extends to challenging the competence of a ground or grounds of appeal through an issue for determination. The learned Respondent’s Counsel in making the challenge to the competence of ground 2 the subject of his first issue for determination seems to have lost sight of the law that an issue for determination and a preliminary objection or application to strike out ground of appeal serve different purposes and cannot be used interchangeably. In fact, they are mutually exclusive.

…Therefore Respondent cannot challenge the competence of an appeal or a ground of appeal through an issue for determination.” Equally, in ONWUBUYA vs. IKEGBUNAM (2019) LPELR (49373) 1 at 5-6, Abba Aji, JSC intoned:

“It is objected by the learned Counsel to the Respondent that issue 1 of the Appellants arose from no ground of appeal and ought to be struck out. He referred to COKER V. OLUKOGA (1994) 2 NWLR (PT. 329) 648. This appears true. Nevertheless, this was not raised differently in the Respondent’s brief. Issues like this are usually settled and adjudicated upon by motion, so that the Court can rule on them one way or the other. Where an objection would not be the appropriate process to object or show to the Court defects in processes before it, a motion on notice filed complaining about a few grounds or defects would suffice. See Per RHODES- VIVOUR, JSC in UMANAH v. NDIC (2016) LPELR-42556 (SC). Where the purpose of the objection is merely to challenge the competence of some grounds of appeal, the best procedure is by way of motion on notice. The reason is that the success of the objection would not terminate the hearing of the appeal. See Per KEKERE-EKUN, JSC in KLM ROYAL DUTCH AIRLINES V. ALOMA (2017) LPELR-42588 (SC).” See also ODUNZE vs. NWOSU (2007) 13 NWLR (PT 1050) 1, EFCC vs. AKINGBOLA (2014) LPELR (24257) 1 at 47-49, YAKUBU vs. ODIDI (2022) LPELR (57897) 1 at 6-7 and ADAMA vs. APC (2023) LPELR (59872) 1 at 22. – Per U. A. Ogakwu, JCA

 

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SUO MOTU – CONDUCT OF COURT WHEN MATTERS ARE RAISED SUO MOTU

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By all odds, it is settled law that a Court or Tribunal should not raise an issue suo motu and unilaterally resolve the same without affording the parties a hearing, particularly the party that may be adversely affected by the issue raised. OSHODI vs. EYIFUNMI (2000) 13 NWLR (PT 684) 298 at 332, MOJEKWU vs. IWUCHUKWU (2004) LPELR (19030) 1 at 25, LEADERS & COMPANY LTD vs. BAMAIYI (2010) LPELR (1771) 1 at 11-12 and SANI vs. AYE (2022) LPELR (58094) 1at 12. – Per U. A. Ogakwu, JCA

 

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COURTS – DUTY OF COURTS IN RELATION TO ISSUES EXISTING IN LITIGATION

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The law is settled beyond peradventure that a Court or Tribunal has the bounden duty to pronounce and decide issues existing in the litigation and their effect on the matter. SeeM EJOWHOMU vs. EDOK-ETER MANDILAS LTD (1986) 9 SC 41 at 102-103, AKINTOLA vs. SOLANO (1986) LPELR (360) 1, MARINE MANAGEMENT ASSOCIATES INC vs. NMA (2012) LPELR (20618) 1 at 27, ADEBAYO vs. A-G OGUN STATE (2008) LPELR (80) 1 at 17 and NKUMA vs. ODILI (2006) LPELR (2047) 1 at 17. – Per U. A. Ogakwu, JCA

 

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SUO MOTU – WHAT CONSTITUTES A COURT RAISING AN ISSUE SUO MOTU

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The Records of Appeal disclose that on the hearing date, the Appellants and their witnesses were absent; in the circumstances, the consequence of this became an issue existing in the litigation and the Tribunal was duty bound to make a pronouncement on the legal effect of this on the proceedings. Accordingly, it is not raising an issue suo motu; rather, it is a consideration of the case and drawing the necessary inferences from the issues and materials before the Tribunal. In IKENTA BEST (NIG) LTD vs. A-G RIVERS STATE ​(2008) 6 NWLR (PT. 1084) 612 at 642 or (2008) LPELR (1476) 1 at 28-29 Tobi, JSC stated: “A Court can only be accused of raising an issue, matter or fact suo motu, if the issue, matter or fact did not exist in the litigation. A Court cannot be accused of raising an issue, matter or fact suo motu if the issue, matter or fact exists in the litigation. A Judge, by the nature of his adjudicatory functions, can draw inferences from stated facts in a case and by such inferences, the Judge can arrive at conclusions. It will be wrong to say that inferences legitimately drawn from facts in the case are introduced suo motu. That is not correct.” Also, in ENEKWE vs. IMB LTD (2006) LPELR (1140) 1 at 25 Tobi, JSC stated: “A judge has the right in our adjectival law to use particular words or phrases, which in his opinion, are germane to … facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for counsel to castigate him or accuse him of raising issue suo motu.” Furthermore, in OTU vs. ANI (2013) LPELR (21405) 1 at 31-34, Garba, JCA [now JSC] quipped: “…it is clear that so long as the issue is derivable from the facts and evidence of the parties before the Court, the Court cannot be said to have raised it suo motu for reason only that it used particular words or phrases not used by the parties to describe the issue.”

See also ADEMOK CONTINENTAL LIMITED vs. OGUN STATE GOVT (2022) LPELR (56418) 1 at 11- 16, IDACHABA vs. UNIVERSITY OF AGRICULTURE MAKURDI (2021) 1 SCM 53 at 68, SAHARA ENERGY RESOURCES LTD vs. OYEBOLA (2020) LPELR (51806) 1 at 75-79, OGAR vs. IGBE (2019) LPELR (48998) 1 at 42-44, TOWOJU vs. GOV OF KWARA STATE (2005) LPELR (5390) 1 at 38-39, CHIDI vs. CONSOLIDATED HALLMARK INSURANCE PLC (2018) LPELR (44384) 1 at 16-24, TSEGBA vs. REGD TRUSTEES OF MISSION HOUSE (2018) LPELR (44242) 1 at 51-52, FCMB vs. ACTION ALLIANCE (2018) LPELR (44445) 1 at 10-11 and FINNIH vs. IMADE (1992) 1 NWLR (PT 219) 511 at 537. – Per U. A. Ogakwu, JCA

 

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COURTS – DUTY OF A PARTY TO PROVE MISCARRIAGE OF JUSTICE AS A RESULT OF AN ACT OF THE COURT

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The complaint of the Appellants is not that they were not heard on the issue which they contend that the Tribunal raised suo motu. Their contention is that the Respondents were not heard. So, they seem to complain on behalf of the Respondents who, themselves, are not complaining. Undoubtedly, this is being more Catholic than the Pope, weeping more than the bereaved, and being more royal than the King!! In OGAR vs. IGBE (supra) at 21, Eko, JSC asseverated:

“In any case, the appellant who complains that the Court below raised an issue suo motu and decided upon it without giving the parties an opportunity to be heard on it, must go further to show that the failure to hear him on the point occasioned some miscarriage of justice. IMAH v. OKOGBE (1993) 9 NWLR (Pt. 316) 159 at 198, OLUBODE v. SALAMI (1985) 2 NWLR (Pt. 7) 282.” Even if the Tribunal raised an issue suo motu, which it did not, the Appellants cannot be heard to complain that the failure to hear them occasioned a miscarriage of justice because they were absent and could not have been given a hearing. ​In splice, it is a misappreciation and misapprehension of the proper discharge by the Tribunal of its duty, that the Appellants misconstrued as the Tribunal raising the issue suo motu. No. The Tribunal did not raise any issue suo motu. It merely discharged its duty of considering and pronouncing upon an issue and situation that was patent before it against the background of the law. In such circumstances, there was no legal prescription for the Tribunal to have the Respondents address it on the issue. Indubitably, it is not correct to contend that the lower Court raised the issue suo motu. See also SANI vs. AYE (supra) at 13-16. There was therefore no evisceration of the Appellants’ right to fair hearing in this regard. – Per U. A. Ogakwu, JCA COURTS, DOCUMENTS, PRACTICE AND PROCEDURE SERVICE – THE EFFECT OF LACK OF SERVICE OF A COURT PROCESS WHERE IT IS REQUIRED Without a doubt, service of Court process, including a hearing notice of a date fixed for hearing, is fundamental and a pre-condition to the exercise of jurisdiction by a Court or Tribunal. Failure to effect service of the Court process is a fundamental flaw and the party not served is entitled ex debito justitia to have the proceeding of the Court or Tribunal and the decision reached set aside. Lack of service, where service is required, deprives the Court or Tribunal of the competence and jurisdiction to hear a matter. ONWUBUYA vs. IKEGBUNAM (supra) at 10-13 and 18-19, AUTO IMPORT EXPORT vs. ADEBAYO (2002) 18 NWLR (PT. 799) 554 and SOCIETE GENERALE BANK (NIG) LTD vs. ADEWUNMI (2003) 10 NWLR (PT 829) 526. – Per U. A. Ogakwu, JCA

 

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SERVICE – THE EFFECT OF LACK OF SERVICE OF A COURT PROCESS WHERE IT IS REQUIRED

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Without a doubt, service of Court process, including a hearing notice of a date fixed for hearing, is fundamental and a pre-condition to the exercise of jurisdiction by a Court or Tribunal. Failure to effect service of the Court process is a fundamental flaw and the party not served is entitled ex debito justitia to have the proceeding of the Court or Tribunal and the decision reached set aside. Lack of service, where service is required, deprives the Court or Tribunal of the competence and jurisdiction to hear a matter. ONWUBUYA vs. IKEGBUNAM (supra) at 10-13 and 18-19, AUTO IMPORT EXPORT vs. ADEBAYO (2002) 18 NWLR (PT. 799) 554 and SOCIETE GENERALE BANK (NIG) LTD vs. ADEWUNMI (2003) 10 NWLR (PT 829) 526. – Per U. A. Ogakwu, JCA

 

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APPEARANCE – WHAT CONSTITUTES SUFFICIENT APPEARANCE BY A PARTY IN A PROCEEDING

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It is rudimentary law that a party can appear in person or by counsel and it is sufficient appearance by a party if his counsel is present in Court. See CEEKAY TRADERS LTD vs. GENERAL MOTORS CO. LTD (1992) LPELR (834) 1 at 27, AKINNULI vs. ODUGBESAN (1992) 3 NWLR (PT 258) 172, KEHINDE vs. OGUNBUNMI (1967) LPELR (25374) 1 at 6, ROBERTSON GROUP PLC vs. GEO GROUP LTD (2003) 4 NWLR (PT 810) 385 at 395 and MIDEN SYSTEM LTD vs. EFFIONG (2011) 2 NWLR (PT 1231) 354 at 369. In the words of Muhammad, JSC (later CJN) in VAB PETROLEUM INC. vs. MOMAH (2013) LPELR (19770) 1 at 26:

“I think the law has for long been settled that where a party to a proceeding before a Court is represented by a counsel of his choice, his physical appearance to conduct the proceeding by himself is no longer necessary except where for good reasons, the Court conducting the proceedings, orders otherwise.”​

So, for all intents and purposes, the Appellants who were represented by counsel were in the eyes of the law present before the Tribunal. – Per U. A. Ogakwu, JCA

 

 

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HEARING NOTICE – WHETHER A HEARING NOTICE IS NECESSARY WHEN THE MATTER IS ADJOURNED IN THE PRESENCE OF PARTIES

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Since the matter was adjourned in the presence of the Appellants’ counsel there was no legal prescription for hearing notice of the date for hearing to be served on the Appellants as they already knew the date slated for hearing. S & D CONSTRUCTION CO. LTD vs. AYOKU (2011) LPELR (2965) 1 at 24-25, JONASON TRIANGLE LTD vs. C. M. & PARTNERS (1999) 1 NWLR (PT 588) 555 at 574, JONASON TRIANGLES vs. C. M. & P (2002) 15 NWLR (PT. 789) 176 at 192-193, NACRDB LTD vs. MBIO OKU IKOT OKU ODUNG MULTI-PURPOSE CO-OP SOCIETY LTD (supra) at 23-25 and OBANIKORO vs. YISHAWU (supra) at 30-33.​ – Per U. A. Ogakwu, JCA

 

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HEARING NOTICE – WHETHER HEARING NOTICE IS NECESSARY IN AN ELECTION PETITION

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By Paragraph 25 (1) of the 1st Schedule, the hearing of an election petition shall be deemed adjourned from day to day. Accordingly, even if the Tribunal did not specifically adjourn to a certain date in the presence of the Appellants’ counsel, which it did, by the rules of procedure, the Petition would be deemed to have been adjourned to the next day. The point I have laboured to demonstrate in so many words is that in the peculiar circumstances of this matter, hearing notice was not required to be served on the Appellants as they had knowledge of the hearing date; the said hearing date having been fixed in the presence of their counsel. The valiant efforts to bring in the fair hearing principle and the consequence of non-service of Court process in this matter is therefore unavailing. There was no breach of the Appellants’ right to fair hearing on this score. – Per U. A. Ogakwu, JCA

 

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ELECTION PETITION – WHEN AN ELECTION PETITION IS DEEMED ABANDONED

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It is hornbook law that election matters are sui generis and governed by rules and directions issued in that regard. They are in a class of their own and with their own special character which is quite different from ordinary civil or criminal proceedings; and rules, which are different from other civil actions, governs election matters. See NWOBASI vs. EDWIN (2023) LPELR (60005) 1 at 34, YAU-YAU vs. APC (2023) LPELR (60287) 1 at 22-23 and WELLINGTON vs. PDP (2023) LPELR (60003) 1 at 9-11.

In this wise, the 1st Schedule to the Electoral Act, being the rules of procedure governing the hearing of election petitions has stipulated when an election petition is to be deemed as abandoned. Paragraph 18 (4) of the 1st Schedule provides as follows:

“(4) Where the petitioner and the respondent fail to bring an application under this paragraph, the Tribunal or Court shall dismiss the petition as abandoned petition and no application for extension of time to take that step shall be filed or entertained.”

The above provision is clear that a Petition is abandoned when the parties fail to apply for issuance of pre-hearing notice as provided for under Paragraphs 18 (1)-(3) of the 1st Schedule.  – Per U. A. Ogakwu, JCA

 

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DISCRETION – THE DUTY OF COURTS TO EXERCISE DISCRETION JUDICIALLY AND JUDICIOUSLY

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It is apodictic that under Paragraph 46 (3) of the 1st Schedule, the Tribunal has the power to dismiss a Petition if the Petitioner does not appear when the Petition comes up for hearing. It is limpid from the cold printed records that the Appellants did not appear when their Petition came up for hearing; however, it is not correct as contended by the Respondents that the Tribunal does not have a discretion to exercise in such a situation. In all matters before a Court or Tribunal, the exercise of discretion based on the facts and circumstances of a case always comes into play. It is not garbage in, garbage out. In FAWEHINMI vs. AKILU (1987) 4 NWLR (PT 67) 797 at 843, Eso, JSC stated:

“A judge is certainly not a robot nor an automation who once he is fed data produces an automatic answer. In every action before his Court, in every step taken by a Judge, his discretion is called into play whether in interpreting the law or in deciding an action one way or another. If it is otherwise, giving effect to the rule of law would amount to dexterity in manipulating data which are fed into a machine called judex.”

Equally, in MAGIT vs. UNIVERSITY OF AGRICULTURE, MAKURDI (2006) ALL FWLR (PT 298) 1313 at 1345, Pats-Acholonu, JSC held:

“… it must be equally admitted that Judges are not robots (or zombies) who have no mind of their own … They are intrepid by their great learning and training and can distinguish in order to render justice to whom it is due.”​

The pristine question is whether in the light of the diacritical facts of this matter, the regnant adjectival laws governing the proceedings at hearing, the Pre-hearing Report of the Tribunal, and the stipulations of Paragraph 18 (10) of the 1st Schedule, which is to the effect that the Pre-hearing Report is to guide the subsequent conduct of proceedings, the dismissal of the Petition was a proper exercise of judicial discretion. An appellate Court is loath to interfere with the exercise of discretion by a trial Court or Tribunal except where the discretion is not a proper exercise of judicial discretion and has occasioned a miscarriage of justice. See NGWU vs. ONUIGBO(1999) 13 NWLR (PT. 636) 512 at 524-525, T. S. A. IND. LTD vs. KEMA INVESTMENTS LTD (2006) 2 NWLR (PT 964) 300 and GBENEYEI vs. ISIAYEI (2014) LPELR (23216) 1 at 19.

In questions of exercise of discretion and the manner in which to exercise discretion, it is discretio legalis est scire per legem quid sit justum – a discretion to do what is just through the law. FAGBENRO vs. OROGUN (1993) 3 NWLR (PT. 284) 662 at 679. Judicial discretion is a term applied to the discretionary action of a Court, Tribunal or Judge bounded by the rules and principles of law, not giving effect to the will or private opinion and not to humour. It is a discretion exercised judicially and judiciously. A judicial discretion is based upon facts and circumstances presented to the Court or Tribunal from which it must draw a conclusion governed by law, justice, and common sense. An exercise of discretion is a liberty or privilege to decide and act in accordance with what is fair and equitable under the peculiar circumstances of the case, guided by the spirit and principles of law. The exercise of discretion must be judicial in the sense that it must not be capricious and must be for a reason connected with the case. It must be judicious in the sense that it must be based on sound judgment marked by prudence, wisdom, and good sense. See ERONINI vs. IHEUKO (1989) 2 NWLR (PT 101) 46 at 60-61, OWNERS OF THE MV LUPEX vs. NIGERIAN OVERSEAS CHARTERING AND SHIPPING LTD (2003) LPELR (3195) 1 at 18 and WAZIRI vs. GUMEL (2012) LPELR (7816) 1 at 29-30.

Explaining the manner of exercise of discretion, Tobi, JCA (as he then was), stated as follows in ACB LTD vs. NNAMANI (1991) 4 NWLR (PT 186) 486 at 494-495:

“It has now become almost an axiom or an aphorism in our judicial system to say that a discretionary power must be exercised not only judicially but also judiciously…

The exercise of the Court’s discretion is said to be judicial if the Judge invokes the power in his capacity as Judge qua law. In other words, an exercise of a discretionary power will be said to be judicial, if the power is exercised in accordance with the enabling statutes. On the other hand, an exercise of a discretionary power is said to be judicious if it carries or conveys the intellectual wisdom or prudent intellectual capacity of the Judge as judex. In this second situation, the exercise of the discretion must be replete with such wisdom and tenacity of mind and purpose. The exercise must be based on a sound and sensible judgment with a view to doing justice to the parties.

But, discretion is discretion whether it wears any of the two qualifying expressions mentioned above, only when it is exercised by the Court according to law and good judgment. Discretion is not discretion if its exercise is based on the Court’s sentiments or premeditated pet ideas on the matter, completely outside the dictates of either the enabling law or good judgment as the case may be.” – Per U. A. Ogakwu, JCA

APPEAL, COURTS, PRACTICE AND PROCEDURE, WORDS AND PHRASES

MISCARRIAGE OF JUSTICE – MEANING OF MISCARRIAGE OF JUSTICE

Now, what constitutes miscarriage of justice varies from case to case as the concept is denoted by the facts of the given case. In simple terms, miscarriage of justice is a failure of justice. Miscarriage of justice occurs when the Court or Tribunal fails or refuses to follow the rules and arrives at a decision which is prejudicial and inconsistent with the legal rights of a party. Miscarriage of justice is failure on the part of the Court or tribunal to do justice. It is justice misplaced, mis-appreciated or misappropriated. See OGUNTAYO vs. ADELAJA (2009) 15 NWLR (PT 1163) 150 or (2009) LPELR (2353) 1 at 43-44 (per Tobi, JSC) and ONAGORUWA vs. STATE (1993) 7 NWLR (PT 303) 49 (per Tobi, JCA [as he then was]). The miscarriage of justice on the basis of which an appellate Court will interfere is where the violation of some principle of law or procedure is such that if corrected a different result will be the outcome; or it may be the neglect of some principle of law or procedure which if it had not been neglected a different result will be the outcome. DAGACI OF DERE vs. DAGACI OF EBWE (2006) 7 NWLR (PT. 979) 382 or (2006) LPELR (911) 1 at 42, ABUBAKAR vs. DANKWAMBO (2015) LPELR (25698) 1 at 33-34 and EZE vs. UNIJOS (2017) LPELR (42345) 1 at 13-14.  – Per U. A. Ogakwu, JCA

 

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MISCARRIAGE OF JUSTICE – MEANING OF MISCARRIAGE OF JUSTICE

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Now, what constitutes miscarriage of justice varies from case to case as the concept is denoted by the facts of the given case. In simple terms, miscarriage of justice is a failure of justice. Miscarriage of justice occurs when the Court or Tribunal fails or refuses to follow the rules and arrives at a decision which is prejudicial and inconsistent with the legal rights of a party. Miscarriage of justice is failure on the part of the Court or tribunal to do justice. It is justice misplaced, mis-appreciated or misappropriated. See OGUNTAYO vs. ADELAJA (2009) 15 NWLR (PT 1163) 150 or (2009) LPELR (2353) 1 at 43-44 (per Tobi, JSC) and ONAGORUWA vs. STATE (1993) 7 NWLR (PT 303) 49 (per Tobi, JCA [as he then was]). The miscarriage of justice on the basis of which an appellate Court will interfere is where the violation of some principle of law or procedure is such that if corrected a different result will be the outcome; or it may be the neglect of some principle of law or procedure which if it had not been neglected a different result will be the outcome. DAGACI OF DERE vs. DAGACI OF EBWE (2006) 7 NWLR (PT. 979) 382 or (2006) LPELR (911) 1 at 42, ABUBAKAR vs. DANKWAMBO (2015) LPELR (25698) 1 at 33-34 and EZE vs. UNIJOS (2017) LPELR (42345) 1 at 13-14.  – Per U. A. Ogakwu, JCA

 

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MISCARRIAGE OF JUSTICE – CONDUCT OF AN APPELLATE COURT IN DECIDING WHETHER THERE HAS BEEN A MISCARRIAGE OF JUSTICE

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In deciding whether there has been a miscarriage of justice, the appellate Court must be satisfied that what has been done is not justice according to law, that it is substantial and not one of mere technicality which caused no embarrassment or prejudice to the appellant. See OKONKWO vs. UDOH (1997) LPELR (2482) 1 at 6, THE STATE vs. AJIE (2000) LPELR (3211) 1 at 11 and SABURI ADEBAYO vs. A-G OGUN STATE (2008) 7 NWLR (PT 1085) 201 or (2008) LPELR (80) 1 at 12.  – Per U. A. Ogakwu, JCA

 

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COURTS – CONDUCT OF COURTS IN DETERMINING MATTERS

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Where a case has occasioned a miscarriage of justice, it is liable to be set aside however well decided. See NWANA vs. FCDA (2007) 11 NWLR (PT 1044) 59 or (2007) LPELR (2101) 1 at 22, OKONKWO vs. OKONKWO (1998) 10 NWLR (PT. 571) 554 and EHOLOR vs. OSAYANDE (1992) 6 NWLR (PT. 249) 524.

Doubtless, given the sui generis nature of election matters and the fact that they are time-bound, it may be overly attractive to have them disposed of in a timely manner since the usual apothegm is that justice delayed is justice denied. However, the reverse is equally correct as justice rushed is justice crushed. In the words of Karibi-Whyte, JSC in NTUKIDEM vs. OKO (1986) 5 NWLR (PT 45) 909 at 931:

“The Court should not succumb to the temptation of hastily determining a case in limine without hearing the complaint because of the delay which may arise…”

The haste in dismissing the Petition clearly occasioned a miscarriage of justice as the Petition was not heard on the merits. Here, I call in aid the words of Olatawura, JSC in USIKARO vs. ITSEKIRI LAND TRUSTEES (1991) 2 NWLR (PT. 172) 190 as follows:

“Let no man walk out of our Courts disappointed in the administration of justice. He will prefer to lose a case on its merits than to allow his opponent win by default. There is no provision for a walkover in our adversary system. It is not a game of football or a tennis competition. It must be shown and seen that any party has a fair trial.”

The dismissal of the Petition amounted to entry of final judgment in favour of the Respondents. It gave the Respondents a walkover, a victory by default without the Petition being fought on the merits. The decision must therefore be set aside in order to cure the miscarriage of justice that was occasioned and correct the injustice: OYEKANMI vs. NEPA (2000) LPELR (2873) 1 at 28, SOLANKE vs. AJIBOLA (1968) VOL. 5 NSCC 40 at 44-45 and ODUSOTE vs. ODUSOTE (1971) VOL. 7 NSCC 231 at 235.  – Per U. A. Ogakwu, JCA

 

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CASES CITED

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NOT AVAILABLE

 

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STATUTES REFERRED TO

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1. Court of Appeal Rules, 2021

2. Electoral Act 2022