Legal Nuggets (59): Breach of Right of Fair Hearing.- By Adedotun Habeeb Adetunji, LL.M (M.IoD), FCAI

KALIBU vs. BENUE STATE PLANNING COMMISSION & ORS.(2019)LPELR-47264(CA)

ISSUE: BREACH OF RIGHT TO FAIR HEARING-Whether the fact that a Court relied on an original but abandoned Court process instead of the amended version of same in the determination of a suit amounts to breach of fair hearing

PRINCIPLE:
"Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) guarantees a person's right to fair hearing in the determination of his
civil rights and obligations. One of the components of the right to fair hearing is that a party to litigation must be heard or must be given an opportunity to be
heard before the determination of his civil right or obligation. The true test of fair hearing is -
"... the impression of a reasonable person who was present at the trial Court whether, from his observation, justice has been done in the case." - Ademola, CJN, in
Alhaji Ishiyaku Mohamad V. Kano NA (1968) All NLR 411, 413.
In the instant matter, the original statement of facts which was filed on 4/9/2012 was by the order of Court made on 29/10/2013 amended. What was the effect
of the amendment? In the case of Rotimi V. MacGregor (1974) 11 and 12 SC (Reprint) 102, 116 Coker, JSC, quoted with approval the observation of Hodson, L J, in
Warner V. Sampson (1959) 1 QB 297, 321 as follows:
"I do not think that this amendment can be ignored. Once pleadings are amended, what stood before amendment is no longer material before the Court and no
longer defines the issues to be tried ..."
Therefore the effect of an amendment is that it takes effect from the date of the original process. What stood before the amendment is no longer material before
the Court and no longer defines the issues to be tried. See Uzodinma V. Izunaso (2011) 17 NWLR (Pt. 1275) 30, 88; Bello V. INEC (2010) 8 NWLR (Pt. 1196) and
Okafor V. Bende Divisional Union, Jos Branch (2017) 5 NWLR (Pt. 1559) 385, 407.
It was contended by appellant that the learned Judge based his judgment on the original statement of facts which, as stated above, had been amended. He
submitted that it amounted to not considering his case thus amounting to denial of fair hearing. Respondents' counsel took a contrary stance, asserting that the
trial Court made copious references to the amended statement of facts. At page 260 of the record of appeal (that is page 2 of the judgment) the learned trial
Judge at the commencement of his judgment set out the prayers of the appellant as contained in the original statement of facts. His Lordship made no reference
to the fact that there was an amendment of the statement to rejig some old reliefs and incorporate a new one.
The references to the amended statement of facts by the learned trial Judge at pages 262, 266, 267, 268 and 270 of the record of appeal (pages 4, 8, 9, 10 and
12 of the judgment) are but a summary of the submissions of appellant and not His Lordship's assessment of the case of the appellant. It is at page 278 of the
record of appeal that the learned trial Judge, in determining whether or not the suit of the appellant was caught by the Public Officers Protection Law of Benue
State, referred to paragraphs 24, 25 and 26 of the amended statement of facts. His Lordship thereafter decided that the claim was not caught by the said
limitation law. This point is not an issue in this appeal so I will not consider it any further. It is obvious that the trial Court referred to the abandoned or original
statement of facts in its judgment. This is clear from what is set out as the reliefs in the introductory part of its judgment. The reliefs set out therein were quoted
verbatim from the abandoned statement of facts and not the amended statement of facts. At page 282 of the record, the trial Court stated as follows:
"Reliefs (b) and (e) the claimant wants the Court to declare that in the absence of a Benue State House of Assembly Service Commission, the termination of
claimant's appointment by 3rd defendant is null and void...
As for the declaration for establishment of Benue State House of Assembly Commission, that is the preserve of the Benue State Government, and has nothing to
do with this Court. Therefore the reliefs (b) and (e) also fails."
The above is obviously a reference to reliefs (b) and (e) in the original statement of facts and not the amended statement of facts. In the original statement of
facts, reliefs (b) and (e) state:-
"b. A DECLARATION that in the absence of the Benue State House of Assembly Commission, the purported termination of the appointment of the 2nd Claimant
by the 3rd Defendant vide letter dated 25th July, 2012 is null, void and of no effect.
e. A DECLARATION that the establishment of the Benue State House of Assembly Commission is long overdue."
In the amended statement of facts prayers (b) and (e) read:
"b. A DECLARATION that in the absence of the Benue State House of Assembly Commission and the expiration of the internship period specified in the Letter of
Appointment of the Claimant dated 28th February, 2008, the purported termination by the 3rd Defendant on 25th day of July 2012 of claimant's appointment as
a legislature Staff Intern is null, void and of no effect...
e. A DECLARATION that the exclusion of the Claimant from the terms stated in the appointment letter dated 28th February, 2008 executed by the 5th Defendant
and addressed to all the Legislative staff interns is discriminatory and unjustified same not being in accordance with any Law."
I have underlined portions of the prayers quoted above to show the difference between prayers b and e in the original and amended statements of facts. It was
on the basis of the
above, among others, that the appellant contended that the trial Court did not consider his case thus amounting to a denial of fair hearing.
In the case of Nwokoro V. Onuma (supra), cited by appellant's counsel, at the Court of Appeal, appellant's counsel adopted his amended brief of argument. In its
judgment, the Court of Appeal referred to the original appellant's brief of argument, unaware or oblivious of the fact that it was the amended appellant's brief of
argument that was adopted. It dismissed the appeal. At pages 32 - 33 of the report, Karibi-Whyte, JSC, opined that-
"A party is entitled as of right to the consideration of his case before the Court. Thus where the Court has relied on the case abandoned by the litigant in the
determination of his grievance before it, it will not only be a misuse of the expression that he has been given a fair hearing, it will also be more accurate to say
that he was not heard at all...
That the appellant had a hearing in the instant case cannot be disputed. What is being disputed is that the hearing was fair to appellant as he conceived his
case, and on the case he presented. It was the result of an error by the Court itself that appellant's case was considered on the arguments he had already
abandoned. The effect of the error was that the case presented by the appellant was not considered. It is difficult to conceive that a reasonable man who present
at the trial and observing would agree that justice had been done in the case to the appellant."
Appellant urged this Court to apply the case of Nwokoro V. Onuma (supra) to this case for the reason that the trial Court did not hear him, having considered his
case on the abandoned statement of facts, instead of the amended statement of facts. In the case of Adeogun V. Fasogbon (2011) All FWLR (Pt. 576) 485, one of
the issues for determination was whether in determining the cross-appeal of the appellant, the Court of Appeal was right in relying on the notice of cross-appeal that had been abandoned. After reviewing the record, the Supreme Court, per Chukwuma-Eneh, JSC, observed at page 503 that-
"Nonetheless, from the abstract of the record... it has also been unequivocally demonstrated that the lower Court notwithstanding the accidental slips in referring
to the abandoned original notice of cross-appeal instead of the amended notice of cross-appeal has all the same dealt with the appellant's case by considering
all the material issues as raised for determination in this matter as per the appellant's brief of argument."
The Supreme Court therefore refused to vitiate or fault the decision of the Court of Appeal solely on that ground. This was based on the time - honoured position
of the law that it is not every slip or error in a decision that will lead to its reversal except it results in miscarriage of justice and also that every case must be
viewed from its peculiar facts and circumstances. See page 501 of the report. See also Okonkwo V. Okonkwo (1998) 10 NWLR (Pt. 571) 554.
In this instance, at page 278 of the record of appeal, the learned trial Judge in holding that the case of the appellant was not caught by the Public Officers
Protection Law of Benue State, referred to paragraph 24, 25 and 26 of the amended statement of facts. Furthermore, I have read both the original statement of
facts and the amended statement of facts at pages 4 - 12 and pages 189 - 198, respectively, of the record of appeal. It is clear to me that what is new in the
amended statement of facts may be summarized as follows:
1. Discrimination against the appellant by reason of the fact that all the interns have been absorbed except him. See paragraphs 26 - 31 of the amended
statement.
2. Purported disengagement of the appellant - paragraph 24 of the amended statement.
3. Insertion in relief b of the words, "... and the expiration of the internship period specified in the Letter of Appointment of the Claimant dated 28th February
2008.
4. A new prayer 35 (e), namely;
"A declaration that the exclusion of only the Claimant from the terms stated in the appointment letter dated 28th February, 2008 executed by the Defendant and
addressed to all the Legislative Staff Interns is discriminatory and unjustified same not being in accordance with any law."
At page 280 of the record, the trial Judge found that serving the appellant letter of disengagement on 25/7/2012 after the expiration of the period of internship
(in March 2010) was in order. This was apparently a response by the trial Court to the case set out in the amended statement of facts regarding the
disengagement of the appellant. Whether or not the decision is right is not an issue in this appeal, but it deals with the issue/s raised in paragraphs 24 and 35(b)
of the amended statement of facts.
At page 281 of the record, the trial Judge stated-
"The claimant pleaded that he was discriminated against, and his colleagues in the same programme have been absorbed into the civil service, except himself.
Well, he who alleges must prove ...
It is therefore my opinion that the claimant's appointment was terminated justifiably."
Certainly, the trial Judge was referring to the averments of the appellant in paragraphs 26, 27, 28, 29, 30, 31 and 35(e) of his amended statement of facts that
his disengagement was discriminatory and unjustified.
In the light of the above, it is my humble view that though the trial Court erred in referring to the original statement of facts in its judgment, the error did not
result in the case of the appellant as set out in his amended statement of facts not being considered. This is because the learned trial Judge dealt with all the
issues that arose from the said process. The appellant can not therefore rightly say that he was not heard and that he was denied fair hearing. Any reasonable
person who was present at the trial Court and observing would not be amused by the slip of the trial Court but would agree that justice has been done to the appellant. See Adeogun V. Fasogbon (supra)." Per EKANEM, JCA.(Pp.7-17,Paras.C-B).