TheCable

BY OLAGUNJU OLORUNTOMILOBA

Since the decision of the Supreme Court on the appeal of Senator Ademola Adeleke against the decision of the Court of Appeal which upturned the decision of the Governorship Election Tribunal declaring Senator Ademola Adeleke the elected Governor of Osun State, not a few people have expressed extreme opinions on the decision of the apex court. Some have screamed blue murder and claimed that the decision murdered justice at the altar of technicalities while others have opined that the decision accorded with the age-long consistency of the Supreme Court on issues of fair hearing.

The debate got to a fever pitch with the question posed to Hon Justice Tanko Muhammed, the Chief Justice of Nigeria, during the Senate hearing on the confirmation of the Chief Justice designate by Senator Abaribe. Senator Abaribe had confronted the CJN designate with the pronouncement of the Supreme Court in the case of Akeredolu V Abraham & Ors (2018) LPELR- 44067 (SC). The Supreme Court in that case had said that “Technicality in the administration of justice shuts out Justice. A man denied justice on any ground, much less a technical ground, grudges the administration of justice, it is therefore better to have a case heard and determined on merit than to leave the Court with a shield of ‘victory’ obtained on mere technicalities”. He then asked the Chief Justice designate to justify the decision in Adeleke V Oyetola in the light of the position of the Supreme Court in Akeredolu V Abraham & Ors (supra).

What then are legal technicalities? Justice Niki Tobi offered a very illuminating answer in the case of Yusuf V Adegoke & Anor (2007) LPELR – 3534 (SC), when he said that “What is technicality? In Adedeji v. The State (1992) 4 NWLR (Pt. 234) 248, I said at page 265: “I realise that courts of law seem to be using the word technicality out of tune or out of turn, vis-a-vis the larger concept of justice. In most cases, it has become a vogue that once a court is inclined to doing substantial justice by deflecting from the rules, it quickly draws a distinction between justice and technicality so much so that it has become not only a cliche but an enigma in our jurisprudence. In most cases when the courts invoke the substantial justice principle, they have at the back of their minds the desire to put to naught technicalities which the adverse party relies upon to drum drown an otherwise meritorious case. We seem to be overstretching the technicality concept. We should try to narrow down the already onerous and amorphous concept in our judicial process. A technicality in a matter could arise if a party is relying on abstract or inordinate legalism to becloud or drown the merits of a case. A technicality arises if a party quickly takes an immediately available opportunity, however infinitesimal it may be, to work against the merits of the opponent’s case. In other words, he holds and relies tenaciously unto the rules of court with little or no regard to the justice of the matter. As far as he is concerned, the rules must be followed to the last sentences, the last words and the last letters without much ado, and with little or no regard to the injustice that will be caused the opponent.”

It must be borne in mind that as much as law is designed to dispense justice, there are safeguards provided by law to ensure its certainty and purity. When such safeguards are violated, then justice cannot be dispensed. This is different from “mere technicality”. This is where the line is drawn. This is where the amorphous concept is narrowed. An issue may not deal directly with the subject matter of the dispute between parties, but it nonetheless intertwined with justice and its administration that it cannot come under the dismissive definition of technicalities.

A few examples will help. Courts have their jurisdiction spelt out in the Constitution and the statutes that create them. If a litigant approaches the wrong court and a full trial is conducted where he ventilates all his grievances and he gets “justice”, that justice will be short-lived as he is most likely to get a reversal of his euphoric justice on appeal. Another example is where the Defendant or someone affected by the outcome of a case is not served with the originating documents of the suit, any judgment (or “justice” in our context) obtained through such process is likely to suffer a reversal on appeal by the person not served. A suit brought out of the time permitted under the limitation law for a suit to be commenced no matter how well the “justice” (again in our context) is dispensed will ultimately amount to nothing. There are so many examples of issues which may at a first look appear technical, but which a deeper consideration will clearly show to be so fundamental to justice that they transcend the realm of mere technicalities in that they are not just simple matters of procedure, but matters which actually ensures that justice is dispensed.

The preceding paragraph is particularly true in election petitions which have been described as “sui generis”, that is, in a special class. There are so many laws guiding the conduct of election matters. A few examples will be necessary. The constitution provides that election petitions are to be commenced within 21 days, anything outside this stipulation will render any petition invalid. Judgment in an election Petition must be delivered in writing within 180 days any judgment which falls short of this constitutional requirement will sound a death knell for the Petition. Therefore, if the Court holds a party to the standard required by these laws on the insistence of his adversary, the agreement of the court with such adversary will not be undue technicality, it will be obedience to the law.

Now coming to the decision of the Supreme Court in Adeleke V Oyetola, the Supreme Court upheld the decision of the Court of Appeal that the Judge who delivered the lead judgment at the tribunal was not present when some witnesses testified before the tribunal and therefore did not listen, see, or watch the witnesses and assess their demeanour but that in his Judgment he reviewed, assessed and applied the evidence of witnesses who testified in his absence, to give Judgment in the Petition. This is what Senator Abaribe described as technicality. With respect to the “Distinguished” Minority Leader of the Nigerian Senate, this is not technicality. It is Justice in is purest form. The Pillar Justice is fair hearing. Nothing can be fair without a hearing, therefore he who has not conducted a hearing cannot be fair. This position is not new as those who scream blue murder at the decision would want to make it appear. The Supreme Court held the same position in Shanu V Afribank (Nig) Ltd. (2002) LPELR -3036 SC, Nyesom V Peterside (2016) 7 NWLR (Pt. 1512) 452 @ 504, and very recently in Kunle Kalejaye V LPDC & Anor. Indeed, as far back as the days of the West African Court of Appeal, the Court held in the case of Nana Tawiah V Kwesi Ewudzi, 3 WACA 52 that “it is clear that at least two of the Tribunal members who gave judgment were not present throughout the proceedings, and did not hear all the evidence. This vitiates the whole trial, and in my opinion this Court has no option but to declare the whole proceedings before the. Tribunal and the Provincial Commissioner’s Court a nullity”.

The rationale for all these decisions is S. 36 of the Constitution of the Federal Republic of Nigeria (as amended) which makes copious provisions regarding fair hearing. It dictates that the composition of a panel is intrinsic to the fulfilment of the fair hearing requirements of the constitution. The right to fair hearing is a substantive right guaranteed by the constitution, obeisance to the constitutional provision guaranteeing fair hearing cannot by any stretch of ingenuity be a matter of technicality. The opportunity of a Court or Tribunal to observe the demeanour of a witness is an indispensable aspect of procedural jurisprudence, which is rooted in fair hearing. In Woluchem V Gudi (2004) 3 WRN, 20 @ 52-53, the Court explained the rationale of the trial judge seeing and observing witnesses in the following words “The learned trial Judge, has the singular advantage of seeing and observing the witnesses. He watches their demeanour, candour or partisanship, their integrity, manner etc. He can therefore decide on their credibility and this affects a substantial part of his findings of fact. These advantages are not normally enjoyed by the appellate Court. All it has is the printed record; it does not have the other evidence – evidence of the demeanour of the witnesses and other incidental elements that go to make up the atmosphere at a trial. It cannot fully appreciate the background against which the evidence was received. It therefore is in no position to contest the findings of fact which learned trial judge has made based on such evidence that is available before him”

Therefore, when a trial judge who did not see all the witnesses, who did not observe their demeanour and candour seeks to evaluate the testimonies of witnesses he did not see, ascribe probative value to the documents tendered, he will be doing so outside the purview of the duty of a trial judge and in violation of the fair hearing provision of the constitution. The consequence of any decision reached in contravention of the fair hearing provision of the constitution is that the decision is a nullity. In Dingyadi & Anor V INEC & Ors (2010) LPELR – 40142 (SC), the Supreme Court stated the effect of proceedings held in breach of the right to fair hearing “The law is trite that the effect of breach of the right of fair hearing in any proceedings of Court as happened in the instant case rendered the proceedings including the judgment of 10th March, 2010 dismissing the appeal, a complete nullity. See Rasaki Salu v. Taiwo Egeibon (1994) 6 S.C.N.J. 223 also reported in (1994) 6 N.W.L.R. (Pt. 348) 23 at 44 Adio JSC (of blessed memory) said – “It also had to be remembered that the denial of a fair hearing was a breach of one of the rules of natural justice that is the requirement that a party must be given a fair hearing…..”

It must be noted that in the hierarchy of Courts, it is only the trial court that has the privilege and indeed the duty of seeing the witnesses, hearing them, observing their demeanour and forming an opinion about their credibility. All other courts exercising appellate jurisdiction on cases do not see witnesses, they only see Record (or better still, files). It will be very dangerous for the Supreme Court to sanction a dereliction of the sacred duty of a trial court to see and hear witnesses before proceeding to analyse or give probative value to their testimony. Once the fundamental of a hearing by the trial court is missing, no other court can remedy it. Therefore, rather than being vilified, the Supreme Court deserves commendation for preserving this judicial arrangement and for sticking to principle rather than expediency that the proponents of ‘substantial justice” urge on it.

The decision of the Supreme Court on Adeleke V Oyetola was not based on any technicality, it is based on the agelong tradition of the Supreme Court to protect the fair hearing provisions of the Constitution. Even the two judges that dissented from the majority judgment of five other judges did not express any disagreement with the principle that a judge who did sit throughout the proceedings cannot deliver a valid judgment. Their dissent was based on the fact that they were not convinced that the judge in question did not sit on the day he was said not to have sat. If Senator Abaribe had read the case of Akeredolu and Abraham a little further, he would have discovered that decisions of Court are to be cited only when the situations are similar, he would have come across the pronouncement of the Supreme Court in the same Akeredolu V Abraham’s case that “It is trite that legal principles established in decided authorities are not to be applied across board and in all matters without regard to the facts and issues submitted for adjudication in a particular case. Ascribing the decision on Adeleke V Oyetola to technicality is definitely overstretching the already onerous and amorphous concept of technicality in our judicial process.

Oloruntomiloba is a lawyer practising in Lagos