Hon. Lawal M. Rabiu & Anor. V. Hon. Jumare Tanimu Magaji & Ors. (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

BABA ALKALI BA’ABA, J.C.A (Delivering the Leading Judgment)

The applicant herein by a motion on notice dated the 21st day of December, 2009, filed on the 22nd day of December, 2009, prayed this Court for the following reliefs:-

“1. An order of this Honourable Court setting aside the judgment of this Honourable Court delivered on 1st December, 2009 in the Appeal No. CA/K/EP/SHA/11/08 between Hon. Lawal M. Rabiu & Another Vs. Hon. Jumare Tanimu Magaji & three Others.

2. And for such order or orders as this Honourable Court may deem fit to make in the given circumstances.”

The grounds upon which the application is anchored as reflected on the face of the motion paper, are as follows:-

“1. This Honourable Court as an appellate court admitted the police investigation report earlier rejected by the trial tribunal as Exhibit B1.

2. This Honourable Court having admitted the said police investigation report went ahead to ascribe probative value to same and same weigh heavily in the mind of the court in delivering its

judgment in favour of the Appellants/Respondents.

3. The Respondents/Applicants were never given the opportunity to cross examine the makers of Exhibit ‘B1’ to test the veracity of same and this is more so that in law admissibility is distinguishable from the weight to be attached to a document.
4. There was no hearing on the interlocutory appeal as the Appellants/Respondents did not adopt their brief thereto and same was not deemed argued or adopted as to warrant this Honourable Court admitting the subject matter of the said appeal as exhibit ‘B1′.
5. In the premise of all the foregoing, the instant Respondents/Applicants were denied their right to fair hearing thereby vitiating or rendering void the entire trial and judgment delivered by this honourable Court in this suit.
6. This honourable Court has the inherent jurisdiction to set aside its judgment on ground of nullity.”

In support of the application is seven paragraphs affidavit.

In opposition to the application the 1st and 2nd appellants/respondents filed a counter-affidavit of ten paragraphs.

A further and better affidavit dated and filed on the 1st day of February, 2010 was filed by the respondents/applicants containing nine paragraphs to which Exhibit KF3 is attached.

At the hearing of the application which came up on the 28th day of June, 2010, learned counsel for the Respondents/Applicant, Kayode Faturiyele, Esq, adopted the applicant’s written address, dated the 15th day of April, 2010, filed on 16/4/2010.

The learned counsel for the respondents/applicants in the written address formulated three issues for determination as follows:-

“a) Whether the Respondents/Applicants’ fundamental Right to fair hearing was breached by the admission of Exhibit B1 which was rejected by the lower tribunal when tendered by an unsworn witness.

b) Whether the judgment delivered by this Honourable Court on 1st December 2009 which heavily relied on Exhibit B1 is null and void.

c) Whether this Honourable Court has the jurisdiction to set aside its judgment arising from appeals against election tribunal.”