Bisi Dawodu & Ors V. The National Population Commission & Anor (2000)

LawGlobal-Hub Lead Judgment Report

DALHATU ADAMU, J.C.A.

In this appeal, the action arose after the conduct of the 1991 National Census which was carried out by the 1st respondent. Being dissatisfied with the exercise the Complainants in a representative capacity for themselves and on behalf of the Awujale of Ijebuland and the Obas and people of Ijebu Division comprising of Ijebu Ode, Odogbolu, Ijebu North and Ijebu East and Ogun Water-side Local Government Areas filed a complaint at the Second Census Tribunal holden at Abuja on 17/9/92. After filing the complaint and on 26/2/93, the complainants applied to the Tribunal for an order to direct the Respondents to make available to them certain documents which were used during the census exercise. This was granted by the Tribunal on 5/4/93. Earlier on, the Tribunal had directed on 27/10/92 that the hearing in the case shall be conducted on affidavit evidence to be filed by the parties within a prescribed time limit. In compliance with the order of the Tribunal on 5/4/93, the 1st respondent, made certain documents available to the complainants/appellants. Thereafter, the respondents proceeded to file their own affidavit evidence on 29/4/93 (within its own time limit). On the other hand, the complainants who could not file their affidavit evidence within time an applied for extension of time to do so and that was also granted by the Tribunal. After filing their affidavit evidence and on 4/5/93, the complainants applied for the Tribunal to enter judgment in their favour as per their claim and due to the refusal of the respondents to comply with the Tribunal’s order of 5/4/93 – i.e. to provide certain documents to the complainants. This application for judgment was heard by the Tribunal on 19/5/93 and was dismissed. The Tribunal then adjourned the case for judgment on 24/5/93. On 24/5/93, the Tribunal in its judgment considered the affidavit evidence of both parties before it and found the complaints’ case as unsubstantiated. It accordingly dismissed the complaint in its entirety.

Being dissatisfied with the judgment, the complainants as appellants filed their Notice of Appeal against it to this Court on 9/6/93. The Notice of Appeal at pages 169-171 of the record contains three (3) grounds of appeal.

Both parties in the appeal (hereinafter referred to as simply “the Appellants” and “the Respondents”) filed their respective briefs of arguments in accordance with e rules of this Court which were adopted on their behalf by their counsel at the hearing. In the appellants’ brief only one (sole) issue was framed as follows:-

“ISSUE FOR DETERMINATION

The sole issue for determination in this appeal is:-

“Was the Census Tribunal right in dismissing the Appellants’ case without according them a hearing on the merits?”

The Respondents also in their brief agree with or adopt the above sole issue formulated by the appellants as the only issue that arise for determination in the appeal (See paragraph 3 at page 3 of the said brief).

In arguing the only issue, the appellants’ brief mainly complaints against the refusal of the Tribunal to call upon the parties to proceed and prove or argue their case after the dismissal of their motion for judgment on 19/5/93. It is argued that after its ruling of 19/5/93, the Tribunal should have adjourned for the parties to prove or argue their cases based on the affidavit evidence they have filed or at least for their respective learned counsel to address the Tribunal before adjourning for judgment. It is pointed out in the brief that the judgment of the Tribunal was very scanty without any review of the facts and without any reasons given for the judgment. It is even asserted that the judgment consisted of only one short paragraph of only one sentence (as reproduced at paragraph 1.06 at page 2 of the brief). This is said to be contrary to the General Order of the Tribunal (paragraph 1 thereof) served on the appellants on 27/10/92 the provision of which is said to be analogous to “Discovery and Inspection of Documents” under the High Court Civil Procedure. Reference is also made to section 6 of the National Population Commission (Amendment) Decree No. 26 of 1992 which makes similar provision as follows:-

“Evidence need not be stated in the complaint, but the Tribunal may order such particulars as may be necessary to prevent surprise and unnecessary expense and to ensure a fair and effectual hearing in the same way as in the civil action in the High Court, and upon such terms as to costs and otherwise as maybe ordered.”

See also a similar but more elaborate provision in Section 45(1) of the same Decree.

It is pointed out that although the above provisions of the Decree (in their combined effect) which provide generally for the rules or practice and procedure of High Court to apply to the Tribunal do not specify which High Court Rules would apply, it is suggested in the appellants’ brief to take as a model the rules of practice of the High Court of the Federal Capital Territory, Abuja where the Tribunal was sitting. Thus the Abuja High Court (Civil Procedure) Rules Order 32 Rules 9 – 20 thereof are appropriate and they provide for the Discovery and Inspection of the Documents. Rule 20 of the said rules provides the sanction for non-compliance with the discovery order made by the Court in which event the party who fails to comply will be liable to committal for contempt or for the court’s judgment to be given against him or his interest. It is argued that in the present case when the respondents failed to comply with the Tribunal order of Discovery and Inspection made on 5/4/93, the said Tribunal did not apply the sanctions recommended by the Rules but instead resorted to unnecessary arguments which were only relevant before granting the earlier application for Discovery and Inspection. Thus in its ruling on the appellants’ subsequent application for judgment against the respondents for non-compliance, the Tribunal reviewed its earlier order for discovery and inspection which it had no right or power to do.

Also it is pointed out in the brief, the Tribunal compounded its error by fixing the date for judgment in the substantive suit without giving the parties any sort of hearing and without the addresses of their respective counsel. Thus the appellants’ case was not heard on its merits. This wrong procedure adopted by the Tribunal is said to be contrary to section 33 of the Constitution of the Federal Republic of Nigeria, 1979 which guarantees to every litigant a right to a fair hearing. It is asserted that the appellants were denied their right to a fair hearing of their case by the Tribunal – see OTAPO VS. SUNMONU (1987) 2 NWLR (Pt. 58) 587 at 605; ALADETOYINBO VS. ADEWUNMI (1990) 6 NWLR (Pt. 154) 98; and ONWUKA HI-TECH. VS. ICON LTD. (1990) 2 NWLR (Pt. 226) 733 cited in the brief in support of the submissions. We are finally urged in the brief to allow the appeal for the above considerations.

As stated earlier, the above sole issue of the appellants has been adopted and accepted the respondents’ brief as the only issue calling for determination in the appeal. The submissions in the respondents’ brief are therefore aimed at replying the appellants’ submissions on the said issue. It is emphatically submitted in the respondents’ brief that the appellants were given a fair hearing on the merits by the Census Tribunal. Reference is made in the brief to the Tribunal’s General Order made pursuant to section 6 of Decree No. 26 of 1992 which prescribed the mode of hearing the appellants’ complaint (or petition) filed before the said Tribunal (see page 19 of the record). It is clearly provided and prescribed in the said general order of the Tribunal that hearing of the case was to be by each party filing of an Affidavit Evidence rather than by oral evidence. The parties were also given the time limit for such purpose in view of the time-frame given to the Tribunal to finish its operation – as it was fact-finding Tribunal mainly dealing with figure and documents rather than strict legal principles. It is pointed out in the respondents’ brief that none of the parties or their counsel objected against the general order made or issued by the Tribunal with which they were or were deemed to be in agreement. In terms with the said order also both parties filed their Affidavit Evidence before the Tribunal – see pages 27 – 74 of the record (for the affidavit evidence of the Appellants) and pages 75 – 140 (for that of the Respondents). It is also pointed out in the said brief that the Tribunal gave its consider d judgment after or upon the evaluation of the affidavit evidence and the documents annexed thereto, of both parties. The statement in the appellants’ brief that the judgment of the Tribunal consisted of only short sentence or four-line paragraph (see page paragraph 1.06 of the appellants’ brief) is described in the respondents’ brief as misleading and fallacious. It is point out that the judgment (which covers pages 165 – 168 of the record) in actual fact consisted of four (4) full pages of evidence evaluation, assessment and final conclusion of the Tribunal in the case.