At 9:30am today, the Registrar of the Court announced that hearing was going to commence at 11:30am because the petitioner had written to Court to request the extension as they received respondents processes late at night.
At 11:30 am, the Court commenced hearing. To additional justices, Her Ladyship Lovelace Avril Johnson and His Lordship Ahmadu Tanko were added to the to regular panel of seven (7) to hear the application for review on the ruling of the Court dated 11/02/21 in which the Court affirmed the decision of the 1st and 2nd respondents not to adduce any evidence.
The Court allowed thirty (30) minutes each to Counsel for their submissions. Counsel for petitioner relied on his affidavit in support and statement of case. He submitted that there was a fundamental error because the Court in its ruling failed to refer to Section 26 of the Evidence Act. He further submitted that the said section created a conclusive presumption against the Chair of the EC from resiling on the decision to testify having filed witness statement. Counsel continued that under Section 58 of the Court’s Act, the Court may on its own summon a witness were they deem it appropriate but the petitioner did not at the time think it appropriate.
Counsel for petitioner continued that the application of the law by the Court that a court cannot compel a party to testify was irrelevant since the EC Chair was a witness and not necessarily a party .
Appau JSC quizzed Counsel for petitioner whether he was distinguishing between a party and witness as it was a party who would call witnesses to support his case. If a party therefore decides not to call his witness, then why should the Court do so. Counsel for petitioner insisted that it could be done in the interest of justice.
Counsel for petitioner also submitted that the distinction of the case of Sumalia Biel Biel from the present case was improper that the crust of that case was that a respondent could be made to open his case first in the interest of justice.
Counsel in concluding in his submissions contended that reference of the Court to Order 38 rule 3(E) as amended was wrong as the respondent’s Counsel himself did not refer to the said provision in the course of arguments. He also submitted that petitioner had been denied fair hearing by the decision of the Court affirming the election of the respondents not to testify in the matter.
1ST RESPONDENT’S RESPONSE
Counsel for 1st respondent in a brief reply relied on his statement of case and affidavit in opposition. He submitted that no fundamental errors that have occasioned a grave miscarriage of justice had been demonstrated warranting the exercise of the Court’s review jurisdiction.
He submitted further that assuming that even the Chair of the EC represented to petitioner she was going to testify in the previous applications, the petitioner placed no reliance on that representation as he pursued the applications in respect of which the depositions were made to the fullest and the Court eventually dismissed them. Consequently, estoppel cannot avian them. He concluded that petitioner has raised no new matters and is only seeking a second bite of the cherry by inviting the Court to sit on appeal over its own decision.
2ND RESPONDENT’S RESPONSE
Counsel for 2nd Respondent relied on his affidavit in opposition and statement of case. He submitted that the application was a classic case of a losing party becoming emotional after losing and seeking to reargue his case through the backdoor.
Counsel submitted that the introductory sentence of Section 26 of the evidence Act has the words except as otherwise stated by any law including a rule of equity, hence the reliance of the Court on CI 87 to affirm the respondents decision to to adduce evidence was apt. He argued that this is not a case where it can be said subsidiary legislation was being used to trump a substantive act as the law itself allows it.
Counsel continued that before the ruling being sought to be reviewed, extensive arguments were made by both sides on Order 38 as amended by C.I. 87 and therefore the court was entitled to disregard all arguments made on that law as it was a rehash.
Counsel concluded that a major foundation whenever Courts have referred to the interest of justice had been in relation to the factual matters as assessed in that case. The interest of justice can therefore not be a general blanket without reference to the underlying facts. Consequently, the Court assessed the entire facts and refused the objection hence petitioner cannot be heard to say in the interest of justice.
REPLY BY PETITIONER’S COUNSEL.
Counsel for petitioner in reply sought to say the petitioner relied on the representation in the affidavit to close their case.
Justice Torkonoo asked the petitioner whether the supposed representations of the Chair of the EC in the affidavit were filed before the trial to which he responded yes.
The Court recessed to consider its ruling.
RULING OF THE COURT
The Court in its ruling stated that the petitioner has invoked the special review jurisdiction. The Court continued that by Rule 54 which the petitioner had invoked, petitioner had to prove exceptional circumstances that have occasioned a miscarriage of justice. The Court noted that even thought the petitioner had gone through several parts of the ruling being sought to be reviewed, he had failed demonstrate any miscarriage of justice that had occasioned.
The Court also noted the argument of Counsel in relation to Section 26 of N.R.C.D 323 and noted that the absence of an express mention did not mean per incuriam especially when the effect of the provision would have no effect.
The Court further noted that no new matter had arisen and consequently proceeded to dismiss the application.
STAY OF PROCEEDINGS
The Court recessed and reconstituted to a panel of seven (7) to hear the application for stay of proceedings. Counsel for respondents urged the Court to dismiss it on the grounds that it was of no relevance as the review in respect of which the stay was being sought had been dismissed. Counsel for petitioner was insisting that the order in respect of which closing addresses were ordered should be reviewed.
The Court subsequently struck out the stay of proceedings as withdrawn.
Counsel for 2nd respondent then made an application for punitive cost to be awarded against the petitioner for abusing its process with frivolous applications. In answer to the question of whether Counsel was directing the Court on what to do, Counsel respondent he wasn’t and that he was not one of the lawyers who thought they knew better than the Court.
The case was adjourned to Monday, 22/02/21 for the Court to determine another application for review and stay and the Court informed parties it would give a date for judgment on that day.
-Lawyer Nana B

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