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.
In another arm of the submissions in the respondents’ brief, it is argued that the appellants did not indicate their objection when the Tribunal adjourned the case for judgment after its proceedings of 19/5/93 (see pages 162 – 164 of the records). Neither did the said appellants apply to be allowed by the Tribunal to give or call additional oral evidence or for counsel addresses (whether written or oral). It is submitted that the situation or position of the appellants could have been different if they had applied to give further oral evidence or submission of their counsel and their application for that was refused or rejected by the Tribunal – they could then be said to have been denied the opportunity of a fair hearing. It is indicated in the brief that there is no mandatory rule which requires the Tribunal to take dresses from counsel and no such request was made by the appellants’ counsel to the said Tribunal. It is further pointed out that the case of the appellants at the Tribunal was founded purely on figures (i.e. undercounting) as per their affidavit evidence. As such there is no amount of address by their counsel that can prove their allegation in the absence of arithmetical figures. It is an established principle of law that counsel addresses no matter how brilliant they might be cannot take the place of probative evidence (oral or documentary) which is a factual rather than legal point, the brief reasserts. On the non-mandatory nature or requirement of Counsel’s addresses in a case the absence of which is or should not be fatal to the proceedings – see NIGER CONSTRUCTION VS. OKUGBENI (1989) 4 NWLR (Pt. 67) 787 cited in support of the submission.
On the appellants’ submissions regarding the non-compliance, by the respondents with the order of discovery or inspection of the Tribunal, while the respondents concede to the sanction or consequences of non-compliance as asserted in the appellants’ brief, it is argue in their brief that appellants’ application before the Tribunal did not seek or ask for either of the sanctions or consequences prescribed but rather sought for a judgment in default – i.e. asking for a wrong sanctions or remedy. It is pointed out that the sanctions prescribed by the rules of Court in the event of non-compliance with the court’s order of discovery are either a committal for contempt, or striking out of the respondents’ brief. However, the appellants instead of applying for either of the sanctions prescribed, wrongly applied for judgment to be entered in their favour in default or for the deliberate refusal of the respondents to comply with the order of the Tribunal (on discoveries). It is argued that this is an unknown sanction under the rules of court (even as stated by the appellants themselves in their brief).
Thus it is contended in the respondents’ brief that the application was rightly dismissed by the Census Tribunal (see pages 162 – 164 of the records). It is pointed out that there cannot be judgment in default at that stage after both parties had filed their respective affidavit evidence in the case which was thus ripe for consideration and judgment.
On the above submissions, the respondents’ brief concludes and urges us to hold that both the appellants’ application for judgment in default and their substantive case were heard on merit by the Tribunal and there was no infraction of their right to fair hearing at any stage of the proceedings. It is also pointed out that it can be seen from the records (pages 141 – 147) that the respondents had complied with the order of the Tribunal by providing the appellants with the documents required (or ordered) but the said appellants wanted more. In any event the appellants were able to file their Affidavit Evidence for which they need the documents. It could be a different thing (or story) if the said appellant were unable to file their Affidavit Evidence due to the respondents’ failure to comply with the order of discovery made by the Tribunal. We are urged finally in the respondents’ brief to hold that the appellants have failed to prove a denial of their right to fair hearing by the Trial Census Tribunal and their appeal has therefore failed. It should accordingly be dismissed for being frivolous.
Before resolving the sole issue in this appeal as argued above by or on behalf of both parties, I would like to make a passing remark (by the way) on the propriety or otherwise of pursuing or continuing with this appeal in view of its historical antecedents and the affluxion or expiry of a long period of time (9 years) after the census exercise of 1991 upon which it is based. It appears to me that no useful purpose would be achieved by this appeal because of the period that has expired after the census exercise in 1991.
The figures released by the Commission since that year have been in use since then and presently the government is arranging to make another census exercise. The Census Tribunal that tried and heard the appellants’ case which had only a short lifespan had since wound up after concluding its adhoc assignment. Unfortunately, as it was a swift exercise, there was no Census Appeal Tribunal established by Decree No. 26 of 1992 to cater for appeals against the decision of the Census Tribunals. It appears that this appeal was brought by implication arising from the general saving provisions in section 45(1) of the Schedule to the enabling Decree (supra) where it is provided that the practice and procedure of the Tribunal shall be assimilated as nearly as possible to the practice and procedure in the High Court with necessary modifications to render them applicable. Thus by implication since there is a right of appeal from the decision of the High Court to this Court under section 221 and 222 of the 1979 Constitution, there should be similar right to appeal against the decision of the Tribunal by virtue of the above provision. This is why even the Notice of Appeal (at pages 169 – 171 of the record) is couched in the usual form – Civil form 3 – used for regular appeals from the High Court and not in any special form as none is prescribed by the Decree. In any case the absence of appeal provision in the Decree No. 26 of 1992 indicates that no appeal was anticipated by the legislature against the decision of the Census Tribunal which, as stated in the respondents’ brief, is rather a fact-finding Tribunal established to deal swiftly with the complains or petitions that arose from the figures released by the adhoc National Population Commission otherwise known as Shehu Musa’s Commission aft the Census of 1991. Also if appeals against the decision of the Tribunal were anticipated special provision for an appellate machinery or proceedings would have been made in the enabling Decree (supra) similar to those made in the Election Decree(s). In my view the present appeal which was brought through the regular system of adjudication in our country (which has been prolonged) does not reflect the true intention of the Decree and can at this stage (after 9 years) amount to mere academic or hypothetical exercise which the Courts are normally enjoined avoid- See NNWOCHA VS. GOVERNOR OF ANAMBRA STATE (1984) 1 SCNLR 634, GOVERNOR OF KADUNA STATE VS. DADA (1986) 4 (Pt. 38) 687; EZEANYA VS. OKEKE (1995) 4 NWLR (Pt. 388) 142 and ALLI VS. AKINLOYE (2000) 6 NWLR (Pt. 660) 177 at 213.
It is also to be noted that although there is or presumed to be now an existing National Population Commission in existence established under the Constitution (see the 3rd schedule part I item J of the 1999 Constitution) and the National Population Commission Act, p 270 Laws of the Federation of Nigeria, 1990, it is not clear whether the current Commission has taken over or inherited the erstwhile adhoc commission of 1991 (i.e. Shehu Musa’s Commission). It is also interesting to note that there is a provision in section 29 of the Act (supra) expressly excluding or ousting the jurisdiction of the Courts from enquiring into the validity of any decision, action or order made or given under the Act. Thus, if the appeal herein is brought pursuant to the said Act, it is my view that it has been caught under the purview of the ouster provision and this Court’s jurisdictions to hear it has thereby been ousted. Unfortunately however when this appeal was heard, the learned counsel did not draw our attention on the above provisions on the competence of the appeal.
Neither did they provide us with the Deere No. 26 of 1992 under which the proceedings of the Census Tribunal was conducted in order to show that there a right of appeal granted in the said Decree from the decision of the Census Tribunal. There is also little time now to invite the learned counsel to address us on the issue so raised suo motu by this Court.
Be that as it may, despite the above points, I am of the view that since an appeal has been brought before us through an apparently normal and due process, it is our duty (i.e. the duty of this Court as the Court of Appeal) to consider and determine it on its merits. This is moreso when it is considered that the issue raised in the appeal is bordered on the breach of an important and constitutional principle or rule of fair hearing – which is treated as fundamental to every adjudication. After giving a careful consideration to the submissions in the two briefs on the sole issue for determination in this appeal, I am inclined to accept the submissions in the respondents’ brief on the issue in preference to those of the appellants. I agree fully with the respondent’s argument that the Census Tribunal gave its general order regarding the hearing of the complaint (see page 19 of the record) which both parties agreed with and accepted. None of the parties showed any objection or opposition to the said general orders as to hearing of the complaint by affidavit evidence rather than by oral evidence or submissions. The said order of the Tribunal was also validly made in accordance with section 6 of the Decree (supra). There was no objection on the part of/or on behalf) of either party to the general rules on the hearing of the case made by the Tribunal. They cannot therefore be heard now to co plain against the said rules which they did not object to at the Tribunal.
The law is settled that a party who acquiesced to an irregular procedure during the trial or who did not object to such procedure during the trial cannot be heard on appeal in his complaint against such procedure – see IPINLAYE II V. OLUKOTUN (1996) 6 NWLR (Pt. 453) 748; ICHIE VS. STATE (1996) 9 NWLR (Pt. 470) 83; DANMOLA VS. ADVISER ON LANDS (unrep.) judgment of FSC in appeal no. FSC 41/1958 of 6th June 1958 reported in Digest of Supreme Court cases 1956 – 1984 p. 590 and NOIBI VS. FIKOLATI (1987) 1 NWLR (Pt. 52) 619. I also agree with the respondents’ submissions that the appellants did not object when the Census Tribunal adjourned the case for judgment after the proceedings of 19/5/93. Neither did the said appellants indicate their intention (or applied for leave) to call oral evidence or to address the Court. It is also the law that counsel’s addresses are an integral and important part of a judicial proceedings and their absence can or is capable of vitiating the whole trial – see OBODO VS. OLOMI (1987) 3 NWLR (Pt. 59) 111 at 121 and AMOUGH VS. ZAKI (1998) 3 NWLR (Pt. 542) 483 at 490 and 491 – 492; NDU VS. STATE (1990) 7 NWLR (Pt. 164) 550 at 560; and SALAMI VS. ODOGWU (1991) 2 NWLR (Pt. 173) 291. I am however of the humble view that in the present case which can be distinguished from those cited above, the appellants’ counsel did not seek to address the Tribunal (either orally or in writing) and the said Tribunal did not hear the address of the adverse party while rejecting or refusing to their own address as happened in AMOUGH VS. ZAKI (supra). In the present case no address was heard from either party because of the urgency of the matter and the party’s case in the case did not indicate their desire to address which the Tribunal denied.
In my humble view the situation in the present case is similar to what happened in Ipinlaye’s case (supra at p. 167 of the report) where it was held by the Supreme Court as follows:-
“In general, where a party in a civil proceeding has consented to a procedure at the trial which is neither unconstitutional nor a nullity but merely wrong or irregular and in fact suffers no injustice and no miscarriage of justice is thereby occasioned, it would be too late to complain on appeal that the wrong procedure was adopted simply because he lost the case in the trial court. See AKHIUN VS. THE PRINCIPAL LOTTERIES OFFICER MID-WESTERN STATE & ANOR. (1972) ALL NLR (Pt. 1) 229 at 283; AYANWALE & ORS. VS. ATANDA & ANOR. (1988) 1 NWLR (PT. 68) 22; 1 NSCC 1 at 10-9-10; OKWECHIME VS. PHILIP IGBINADOLOR (1964) NMLR 132.”
In the present case, the above dictum of the Supreme Court aptly applies both in relation to the general order of procedure made by the Trial Census Tribunal and to its final judgment delivered based on only the affidavit evidence on 24/5/93. Both procedures were made by or with the consent of the parties who did not object at the trial court nor indicated their intention to adopt or pursue the regular procedure which would entail the oral hearing or the address of counsel. In any case the appellants cannot complain since no discrimination was committed against them by the Trial Tribunal, which treated both parties alike in the proceedings. It would be a different thing if the Tribunal had heard oral evidence or counsel address on the part of the respondents and refused to hear the appellants in which case it can be accused of breaching the rules or principles of fair hearing. The basic criteria and attributes of fair hearing.
The basic criteria and attributes of fair hearing have been given by the courts and they include the following:-
(a) that the court or tribunal hears both sides not only in the case but also on all material issues in the case before reaching a decision which may be prejudicial to any party in the case;
(b) that the court or tribunal shall give equal treatment, equal opportunity and equal consideration to all concerned; and
(c) that having regard to all the circumstances in every material decision in the case, justice must not only be done but must be manifestly and undoubtedly seen to have been done – UDO AKGHA VS. PAICO LTD. (1993) 4 NWLR (Pt. 288) 434; ADENIYI VS. GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY (1993) 6 NWLR (PT. 300) 426.”
The provision on fair hearing as enriched in section 33(1) of the 1979 Constitution (similar to section 36(1) of the 1999 Constitution) is expressly said to be exercisable or enjoyable by the party within reasonable time.
Accordingly the right to fair hearing does not permit the litigant to remain indolent or to hold the court to ransom by refusing to take necessary or appropriate action at the right time and thereby delay the proceedings – justice delayed is justice denied. Moreover very important element of fair hearing is expressed in the maxim of audi alteram partem (hear the other side). Thus where a party is given an opportunity to be heard but fails to take up the opportunity the Court cannot compel him to do so and will not wait for him indefinitely and such a party who has be n given an opportunity to be heard but failed or refused to utilize the opportunity cannot be heard later to complain that he was denied a fair hearing – see FOLBOD INVESTMENT LTD. VS. ALPHA MERCHANT BANK LTD. (1996) 10 NWLR (PT. 478) 344; SAHIMI V. AKINOLA (1993) 5 NWLR (PT. 294) 434; and EKEREBE VS. EFEIZOMOR (1993) 7 NWLR (PT. 307) 588. In the present case the appellants were given equal opportunity with the respondents to present their respective cases by means of affidavit evidence and both parties have actually filed their affidavit evidence. Also none of the parties requested or applied to be heard orally or to call witnesses. Consequently, the trial Census Tribunal was right to adjourn for judgment which it delivered on 24/5/93. It is pertinent to point out that if after the adjournment for judgment, the appellants had applied to call additional witnesses or to file counsel’s address and such request was unjustifiably refused:- as in Amough’s case, it can then be said that they were denied their right to fair hearing. As they remained adamant and acquiesced until the date of the judgment, they have thereby adopted or conceded to the procedure leading up to the judgment but only went against the judgment by this appeal when it did not favour them.
I have also confirmed that contrary mat is stated in the appellants’ brief, the judgment of the Tribunal did not consist of only one sentence or paragraph but it comprises of four (4) full pages of evaluation, findings and conclusion. I therefore accept the respondents’ argument on the issue and hereby chide the appellants’ counsel in view of his seniority in the profession to refrain making such misrepresentation which is capable of misleading the Court. It is the duty of every counsel as an officer in the temple of justice to always assist the court and guide it in achieving justice in any case in which he appears d advocates before it.
As regards the complaint of the appellants against the refusal of the Tribunal to grant his application for judgment in default (i.e. the dismissal. of the said application), my observation is that the Tribunal was right in doing so because the remedies recommended which are conceded to by the appellants’ counsel himself (as per the rules of High Court of Abuja) are different from what the appellants applied for. The rules provide that where there is a non-compliance with the court’s order of discovery as alleged in the present case, the appropriate sanction applicable is that if the non-complaint was by the plaintiff, he maybe committed for contempt. On the other hand if the non-compliance is on the part of the defendant, his defence can be struck out. In the present case however, the allegation-compliance was by the defendants and so the appropriate application to be brought was for the striking out of their defence. It is only after the order of striking out has been made that the next step can be taken in the proceedings. It is pertinent to state here that the striking out of the defence even if effected does not or will not necessarily entitle the plaintiff (i.e. the appellants in the present case) to judgment. He can still be required to prove his claims or complaints. In any case, the ruling of the Tribunal on the application for judgment of 19/5/93 was an interlocutory decision against which an appeal as of right would lie within 14 days. After the expiry of the statutory period of appeal of 14 days, an appeal against such ruling must be with leave of the Court. In the present case, the appellants did not seek the leave of either the Tribunal or this Court before lodging their appeal against the ruling as per their Notice of Appeal filed on 17/6/93 – almost one month after the ruling – see the Notice of Appeal at pages 169 – 71 of the record.
The case of OTAPO VS. SUNMONU (supra) and other cases cited and relied upon by the appellants in their complaint against the encroachment of their right to fair hearing have no application to the present case. While the principles laid down in those cases are correctly stated in the brief, the facts and circumstances of the present case are very different from those of the cases so cited and relied upon by the appellants. In all those cases as well as those cited above in this judgment, the party or parties complaining against the breach of their right to fair hearing (as per section 33(1) of 1979 constitution) have taken steps in their attempts to be heard and the trial court refused them the opportunity or discriminated against them. The recommended criterion for fair hearing has been laid down to be the objective view of a reasonable person an observer who has witnessed the proceedings from its beginning to end. It is not based on the subjective view of the counsel representing the party – see TUNBI VS. OPAWOLE (2000) 2 NWLR (Pt. 644) 275 at 286-287; KINT VS. STATE (1992) 4 NWLR (Pt. 233) 17 at 37; and JOSIAH VS. STATE (1985) 1 NWLR (Pt. 1) 125 at 140.
In the present case, the Tribunal was fair to the appellants by granting them their application for inspection and discovery in its ruling of 5/4/93. It is also on record as contained in the respondents’ brief and not died by the appellants by way of a reply brief, that the respondents in compliance with the Court’s order made available to the appellants the documents they required but the said appellants wanted more. Thus the notion of the said appellants regarding the documents they required appeared to be speculative of what they perceived the results or figure of the election would be in the statements of results. This is why when they did not find what they thought the documents they required would contain, they requested for re with the hope that they could find the slightest mistake or miscalculation in the figures. Thus if allowed they would continue with their request for more documents until they scrutinize the whole results of the census exercise in their area. In any case, the respondents in their counter-affidavit to the application for default judgment have averred that they had made available to the appellants the documents they requested and the said appellants were busy photostating the said documents for many days until the date given to them by the Tribunal to file their affidavit evidence had expired. The respondents also needed the same documents to prepare their own affidavit evidence. These averments which were not controverted by the appellants by means of a further or better affidavit must be accepted by the Tribunal as it rightly did.
Finally, in view of my above considerations of the sole issue involved in this appeal, the said issue as framed in the appellants’ brief must be answered in the affirmative and resolved against the appellants and I hereby do. With this resolution of the appellants’ sole issue against them, their appeal has collapsed and it is hereby accordingly dismissed as a frivolous appeal. The judgment of the Census Tribunal of 24/5/9 in which the appellants’ complaint was dismissed is hereby affirmed.
I hold that there was no breach of the principle of fair hearing committed against the appellants by the Census Tribunal. I assess the costs of this appeal at N5,000.00 which I hereby award in favour of the respondents and against the appellants.
Other Citations:(2000)LCN/0850(CA)