Law

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Why Alhaji Sani Danladi must remain Taraba deputy gov -
SC
Category: Law Published on Tuesday, 25 November 2014
05:00 Written by Justice N. S. Ngwuta Hits: 1658
NWALI SYLVESTER NGWUTA, J.S.C. (Delivering the
Leading Judgment): This appeal is against the judgment of
the Court of Appeal, Yola Division on appeal against the
judgment of the High Court of Taraba State which struck
out appellant’s Originating Summons seeking to set aside
his impeachment by the Taraba State House of Assembly.
Appellant was serving his second term as Deputy Governor
of Taraba State.
On the 4th of September, 2012, members of the Taraba
State House of Assembly laid before the Speaker of the
said House, a notice of complaint of gross misconduct
against the appellant. On the said 4th September, the
complaint was served on the appellant for his reaction.
Appellant duly prepared and forwarded his reply to the
charges laid against him.
On 18th September, 2012 the House passed a Motion,
pursuant to Section 188(4) of the Constitution of the
Federal Republic of Nigeria 1999 (as amended) to
investigate the allegations of gross misconduct against the
appellant. Consequent upon the resolution of the House to
investigate the allegations against the appellant, the
Speaker of the Taraba State House of Assembly requested
the Acting Chief Judge of the state to constitute a 7-
member panel to investigate the allegations pursuant to
Section 188(5) of the Constitution (supra).
Appellant filed an Originating Summons and a motion
restraining the panel from investigating the allegations
against him. Appellant alleged that in spite of his motion,
the panel went ahead with the investigation, at the
conclusion of which it submitted its report to the House.
Appellant filed an amended Originating Summons to
incorporate new issues relating to denial of fair hearing in
the proceedings of the panel.
In support of the amended Originating Summons, appellant
filed a 34 paragraph affidavit. The respondents filed a joint
counter-affidavit of 27 paragraphs. The appellant filed a
further affidavit of 14 paragraphs.
At the trial, learned counsel for the panel called five
witnesses and closed his case. Appellant’s learned counsel
called one witness and asked for four days’ adjournment on
health grounds to enable the appellant call two more
witnesses and testify on his behalf. He alleged that the
application was denied and the appellant’s case was closed
by the panel. The panel submitted its report which was
adopted by the House and based on same; the House
removed the appellant from office.
Appellant continued to prosecute his Amended Originating
Sum-mons to which the respondents had raised a
preliminary objection challenging the procedure in the
commencement of the suit.
At the conclusion of the trial, the learned trial Judge
concluded inter alia:
“Since the plaintiff have (sic) commenced this case by way
of an originating summons and not through the Writ of
Summons, questions and allegations of denial of fair
hearing which will certainly involve acrimonious and riotous
dispute of fact it will be inappropriate on the part of this
court to proceed to resolve this complaint under the
procedure chosen and adopted by the plaintiff. The
objection raised by the defendants therefore has merit as
the deficiencies highlighted in the case are fatal. The case
is only good for striking out and it is hereby struck out.”
In his appeal to the Court of Appeal against the judgment,
appellant formulated the following three issues from his
grounds of appeal for determination in his brief of
argument:
“1. Whether having regard to the fact that no order or relief
is sought against either the Acting Chief Judge of Taraba
State or the Taraba State House of Assembly their non-
joinder is fatal to the plaintiff’s suit. (Ground 1 of the
Notice and Grounds of Appeal).
2. Whether the action being commenced by originating
sum-mons is incompetent. (Ground 2 of the Notice and
Grounds of Appeal).
3. Whether the honourable learned trial Judge ought to
have set aside the proceedings and the report of the seven-
man panel which investigated the allegation of gross
misconduct against the appellant for want of fair hearing.
(Ground 3 of the Notice and Grounds of Appeal).”
The question calling for resolution is whether or not the
court below determined the question of denial of fair
hearing and if it did, did it arrive at the correct conclusion?
To start with, relief No. 3 in the Amended Originating
Summons gave rise to issue No.3 before the Court below.
Issue No.4 in this appeal, complaining of the dismissal of
the appeal even though the court did not strike out relief
No. 3 in the Amended Originating Summons is in the
prevailing circumstances, a complaint that issue relating to
relief No. 3 in the Originating Summons ought to have been
resolved in favour of the appellant, or at all for that matter.
In my humble view, relief No.3 in the Amended Originating
Summons is the crux of issue No.3 before the court below
and before this Court, it is issue No. 4 on the dismissal of
the appeal by the Court below even though the said Court
struck out reliefs Nos. 1, 2, 4 and 5 of the Originating
Summons, leaving issue No. 3, a complaint arising from
the relief No. 3 in the Amended Originating Summons.
Again, the brief prepared and presented by the learned Silk
for the appellant may not be a model but this Court cannot
afford to shut its eyes to obvious matters which I have
traced from the Amended Originating Summons, through
the Court below to this Court. It will amount to a return to
the era of technical justice not to resolve the issue of
denial of fair hearing raised by reference to relief No. 3 in
the Amended Originating Summons.
The Court below remarked that the appellant who tendered
Exhibit ‘HAG 25’ discredited same as “incomplete and
edited record of the Panel...” Also it is noteworthy that the
respondent relied on the incomplete and edited report, their
own report, to say that the appellant did not prove he was
denied fair hearing. It is not enough, on the facts of this
case, for the respondents merely to assert that the
appellant was not denied fair hearing. They ought to have
exhibited their report to show they complied with S.36(1) of
the Constitution.
My Lords, Exhibit “HAG 25”, the incomplete and edited
record of the Panel composed of the Respondents, is a
document prepared by the respondents who submitted
same to the House of Assembly upon which the House
removed the appellant and the respondents who were in a
position to produce same in response to the appellant’s
allegation of denial of fair hearing withheld it knowing that
the complete record would spell doom to their claim that
they did not deny appellant fair hearing. See Section 149(d)
of the Evidence Act. The respondents did not disclaim
Exhibit HAG 25 but rather relied on the fact that it was
incomplete and edited, to say that the appellant did not
prove that he was denied fair hearing.
On the undisputed facts of this case, the respondent
having denied the specific allegation of denial of fair
hearing in general terms, ought to have tendered the
complete and unedited report of their own proceedings to
disprove the allegation of the appellant. Further, in the
pursuit of substantial, rather than technical justice, the trial
Court and the lower court ought to have ordered the
respondents to produce the complete and unedited record
of their proceedings, having in mind that the quest for
justice cannot be reduced to a game of hide and seek.
There is no suggestion that the complete and unedited
record did not exist.
Between the appellant and the respondents who would gain
by reliance on the Exhibit HAG 25? It is the respondents if
they satisfied S.36(1) of the Constitution and not the
appellant. The complete record was in issue and it is a fact
within the knowledge of the respondents. see Section 142
of the Evidence Act. Based on the facts of this case, I am
of the view that Exhibit HAG 25 was deliberately edited
before or after it was submitted by the respondents to the
House of Assembly and the editing was done with the sore
aim to defeat the appellant’s case on denial of fair hearing.
It was not real justice for the Court below to dismiss the
issue on the convenient ground that the contents of the
exhibit did not support the appellant’s case. Exhibit HAG 25
did not present the complete picture of what transpired at
the panel and the issue cannot be resolved without the
complete records.
Next, the Court below held rightly in my humble view that
“Originating Summons is usually heard on affidavit...” The
affidavit evidence in the Amended Originating Summons
consists of the appellant’s supporting affidavit and the
counter-affidavit of the respondents.
The Court below having found that the “entire record of
proceedings of the panel are not before this Court” and
having stated the correct position that “Originating
Summons are usually heard on affidavit and documentation
exhibits....” ought to have resolved the issue on affidavit
evidence before it.
Though the Court below held that the entire record of
proceedings was not before it, it stated at page 582 of the
record: “I shall now consider what transpired in the Court
below.” With profound respect to their Lordships of the
court below, this is a contradiction in terms. The only
source from which to determine and consider what
transpired before the Court below, that is the trial court
which had to determine the validity vel non of the
proceedings of the panel, is the record of proceedings of
the said panel, the same record the Court below said was
not complete. Magicians do not sit to decide issues in our
courts or panels.
In absence of the complete record of the panel, neither the
trial Court, the Court below nor this Court can determine
that the appellant was not denied fair hearing. See Ediekpo
& 2 Ors v. Osia & 3 Ors (2007) 3 SC (Pt. 1) page 1. There is
no way the Court below, composed of human beings, could
have determined without the complete record, what
transpired in the Court below or in the panel.
In pursuit of its duty to do substantial justice in the case,
the effect of which transcends the parties therein and
affects the entire voting population of Taraba State, the
lower Court ought to have called for the complete record.
In the alternative, the Court below should have complied
with the principle it stated to the effect that Originating
Summons is heard on affidavit. Rather than demand the
complete record of the proceedings of the panel, this court
can, pursuant to its powers in Section 22 of the Supreme
Court Act do what the Court below ought to have done but
failed or neglected to do.
From the affidavit evidence reproduced above, the panel
was sworn in on the 24th day of September, 2012 from
which date the Panel had three months to submit its report
to the Taraba State House of Assembly. The Panel held its
inaugural sitting the next day, 25th September, 2012. At
the sitting of the panel on 28th September, 2012, applicant
appeared by his counsel under protest that his said counsel
had yet to receive full briefing from him.
On the said date and in spite of the protest of the
appellant’s counsel, the panel took five witnesses called by
its Counsel. On the next date, 3rd October, 2012, appellant
was not in court due to ill-health. His two witnesses were
to arrive Jalingo the same 3rd October to testify the next
day, 4th October, 2012. Appellant’s counsel applied for
adjournment based on the facts above but his application
was denied and he was compelled to open the defence.
Learned counsel called one witness and renewed his
application for a continuance to call the remaining
witnesses. Not only that the panel denied the application
for adjournment but unilaterally closed the appellant’s case
and submitted its report to the Taraba State House of
Assembly based upon which the House removed the
appellant from office the morning of 4th October, 2012.
Based on the above, the appellant complained that he was
not given the opportunity to present his defence under
section 36 of the Constitution (supra).
In the joint counter-affidavit of the respondents, it was
averred that the appellant was before the Panel till about 6
pm “when the sitting adjourned to the 3rd of October which
the plaintiff applied for to open and close his defence.”
In reaction to the specific allegation that the appellant was
denied the opportunity to prepare and present his defence,
the respondents stated:
Justice Sylvester Ngwuta
IN THE SUPREME COURT OF NIGERIA HOLDEN AT ABUJA
ON FRIDAY, THE 21st DAY OF NOVEMBER, 2014 SUIT No:
SC. 416/2013. BEFORE THEIR LORDSHIPS: WALTER
SAMUEL NKANU ONNOGHEN; SULEIMAN GALADIMA; BODE
RHODES-VIVOUR; NWALI SYLVESTER NGWUTA; KUMAI
BAYANG AKA’AHS; KUDIRAT MOTONMORI O. KEKERE-
EKUN; JOHN INYANG OKORO....... Justices of the Supreme
Court
BETWEEN
ALHAJI SANI ABUBAKAR DANLADI Appellants
And
1. BARR. NASIRU AUDU DANGIRI
(Chairman, Panel of Investigation into Allegations of Gross
Misconduct against the Deputy Governor of Taraba State)
2. ARCH. USMAN BINGA
3. BARR. R. J. IKITAUSAI
4. ELDER JAPHET WUBON
5. ALH. MUSTAPHA SANI
6. HAJ. AISHATU MUHAMMED
7. MR. JULIUS DAWHAI KAIGAMA (Members of the Panel) -
Respondents
Continued from last week
have traced from the Amended Originating Summons,
through the Court below to this Court. It will amount to a
return to the era of technical justice not to resolve the
issue of denial of fair hearing raised by reference to relief
No. 3 in the Amended Originating Summons.
The Court below remarked that the appellant who tendered
Exhibit ‘HAG 25’ discredited same as “incomplete and
edited record of the Panel...” Also it is noteworthy that the
respondent relied on the incomplete and edited report, their
own report, to say that the appellant did not prove he was
denied fair hearing. It is not enough, on the facts of this
case, for the respondents merely to assert that the
appellant was not denied fair hearing. They ought to have
exhibited their report to show they complied with S.36(1) of
the Constitution.
My Lords, Exhibit “HAG 25”, the incomplete and edited
record of the Panel composed of the Respondents, is a
document prepared by the respondents who submitted
same to the House of Assembly upon which the House
removed the appellant and the respondents who were in a
position to produce same in response to the appellant’s
allegation of denial of fair hearing withheld it knowing that
the complete record would spell doom to their claim that
they did not deny appellant fair hearing. See Section 149(d)
of the Evidence Act. The respondents did not disclaim
Exhibit HAG 25 but rather relied on the fact that it was
incomplete and edited, to say that the appellant did not
prove that he was denied fair hearing.
On the undisputed facts of this case, the respondent
having denied the specific allegation of denial of fair
hearing in general terms, ought to have tendered the
complete and unedited report of their own proceedings to
disprove the allegation of the appellant. Further, in the
pursuit of substantial, rather than technical justice, the trial
Court and the lower court ought to have ordered the
respondents to produce the complete and unedited record
of their proceedings, having in mind that the quest for
justice cannot be reduced to a game of hide and seek.
There is no suggestion that the complete and unedited
record did not exist.
Between the appellant and the respondents who would gain
by reliance on the Exhibit HAG 25? It is the respondents if
they satisfied S.36(1) of the Constitution and not the
appellant. The complete record was in issue and it is a fact
within the knowledge of the respondents. see Section 142
of the Evidence Act. Based on the facts of this case, I am
of the view that Exhibit HAG 25 was deliberately edited
before or after it was submitted by the respondents to the
House of Assembly and the editing was done with the sore
aim to defeat the appellant’s case on denial of fair hearing.
It was not real justice for the Court below to dismiss the
issue on the convenient ground that the contents of the
exhibit did not support the appellant’s case. Exhibit HAG 25
did not present the complete picture of what transpired at
the panel and the issue cannot be resolved without the
complete records.
Next, the Court below held rightly in my humble view that
“Originating Summons is usually heard on affidavit...” The
affidavit evidence in the Amended Originating Summons
consists of the appellant’s supporting affidavit and the
counter-affidavit of the respondents.
The Court below having found that the “entire record of
proceedings of the panel are not before this Court” and
having stated the correct position that “Originating
Summons are usually heard on affidavit and documentation
exhibits....” ought to have resolved the issue on affidavit
evidence before it.
Though the Court below held that the entire record of
proceedings was not before it, it stated at page 582 of the
record: “I shall now consider what transpired in the Court
below.” With profound respect to their Lordships of the
court below, this is a contradiction in terms. The only
source from which to determine and consider what
transpired before the Court below, that is the trial court
which had to determine the validity vel non of the
proceedings of the panel, is the record of proceedings of
the said panel, the same record the Court below said was
not complete. Magicians do not sit to decide issues in our
courts or panels.
In absence of the complete record of the panel, neither the
trial Court, the Court below nor this Court can determine
that the appellant was not denied fair hearing. See Ediekpo
& 2 Ors v. Osia & 3 Ors (2007) 3 SC (Pt. 1) page 1. There is
no way the Court below, composed of human beings, could
have determined without the complete record, what
transpired in the Court below or in the panel.
In pursuit of its duty to do substantial justice in the case,
the effect of which transcends the parties therein and
affects the entire voting population of Taraba State, the
lower Court ought to have called for the complete record.
In the alternative, the Court below should have complied
with the principle it stated to the effect that Originating
Summons is heard on affidavit. Rather than demand the
complete record of the proceedings of the panel, this court
can, pursuant to its powers in Section 22 of the Supreme
Court Act do what the Court below ought to have done but
failed or neglected to do.
From the affidavit evidence reproduced above, the panel
was sworn in on the 24th day of September, 2012 from
which date the Panel had three months to submit its report
to the Taraba State House of Assembly. The Panel held its
inaugural sitting the next day, 25th September, 2012. At
the sitting of the panel on 28th September, 2012, applicant
appeared by his counsel under protest that his said counsel
had yet to receive full briefing from him.
On the said date and in spite of the protest of the
appellant’s counsel, the panel took five witnesses called by
its Counsel. On the next date, 3rd October, 2012, appellant
was not in court due to ill-health. His two witnesses were
to arrive Jalingo the same 3rd October to testify the next
day, 4th October, 2012. Appellant’s counsel applied for
adjournment based on the facts above but his application
was denied and he was compelled to open the defence.
Learned counsel called one witness and renewed his
application for a continuance to call the remaining
witnesses. Not only that the panel denied the application
for adjournment but unilaterally closed the appellant’s case
and submitted its report to the Taraba State House of
Assembly based upon which the House removed the
appellant from office the morning of 4th October, 2012.
Based on the above, the appellant complained that he was
not given the opportunity to present his defence under
section 36 of the Constitution (supra).
In the joint counter-affidavit of the respondents, it was
averred that the appellant was before the Panel till about 6
pm “when the sitting adjourned to the 3rd of October which
the plaintiff applied for to open and close his defence.”
In reaction to the specific allegation that the appellant was
denied the opportunity to prepare and present his defence,
the respondents stated: (Concluded).