Why Alhaji Sani Danladi must remain Taraba deputy gov – SC

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 […]

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: