RT. HON. UDUIMO ITSUELI & ANOR. V. SECURITIES AND EXCHANGE COMMISSION & ANR

RT. HON. UDUIMO ITSUELI & ANOR. V. SECURITIES AND EXCHANGE COMMISSION & ANR
 
final
In The Court of Appeal
Lagos Judicial Division
On Friday, the 25th day of February, 2011
Suit No: CA/L/01/2009
 
Before Their Lordships
 
IBRAHIM MOHAMMED MUSA SAULAWA    ……. Justice, Court of Appeal
ADAMU JAURO    ……. Justice, Court of Appeal
RITA NOSAKHARE PEMU    ……. Justice, Court of Appeal
    
 
 Between
1. RT. HON. UDUIMO ITSUELI
2. OLUSEGUN OYEWOLE    -Appellants
            
 
      And                   
1. SECURITIES AND EXCHANGE COMMISSION
2. ADMINISTRATIVE PROCEEDINGS COMMITTEE OF SECURITIES AND EXCHANGE COMMISSION    -Respondents
      

 
 
    
 
COUNSEL:
                              
Olisa Agbakoba OON (SAN);U.N Emenyonu Esq.    -For the Appellants

                              
Okorie Kalu Esq.    -For the Respondents


JUDGMENT:         
          

        
RITA NOSAKHARE PEMU J.C.A.:
(Delivering the Leading Judgment): At the Court below (precisely the Federal High Court, Lagos) presided over by Honourable Justice Abdullahi Mustapha, the Appellants had filed separate suits to enforce their fundamental rights to fair hearing. Both suits were consolidated in FHC/L/CS/414/2008 and FHC/L/C/430/2008.

Pursuant to papers filed and exchanged between the parties as well as a preliminary objection filed by the Respondents at the Court, the Learned Chief Judge, Hon. Justice Abdullahi Mustapha, on the 23rd of September 2008, dismissed the preliminary objection and the suits in turn.

The Appellants, being dissatisfied with that judgment, has now appealed same. In line with the Practice Direction of this Honourable Court, the Appellants filed their Notice of Appeal on the 17th of October, 2008 predicated on three (3) grounds of appeal.

It is pertinent to state what the Appellants' grouse is as gleaned from the facts, subject matter of the trial at the lower court, which is this.

Sometime in 2005, (1st Appellant) RT. Hon. UDUIMO ITSUELI was appointed as the new Chairperson for Cadbury Nigeria, a public quoted company. However, on resumption of duties, he discovered some irregularities in the financial books of Cadbury and he promptly and voluntarily reported same to the Securities and Exchange Commission (1st Respondent) who are regulators of the Nigerian Capital Market.

Resultantly, the Director General of the 1st Respondent, one Mr. Musa Al-Faki, constituted an in-house committee comprised of members of the 1st Respondent to investigate the irregularities and report back to him. The in-house committee in turn, prepared a report based on their investigation. The report found the Appellants liable for violations of Capital Market Regulations. The in-house committee found the Appellants liable in their report without hearing them. See pages 84-86 of the Record of Appeal. Upon receipt of the Investigation Report from the in-house committee, the Director General of the 1st Respondent instructed the Head of Department, Investigation and Enforcement (the "Chief Prosecutor") to bring the charges set out at paragraphs (a)-(g) of the 1st Respondent's notice against the Appellants.

The Director General of the 1st Respondent then constituted a "Court" – the 2nd Respondent, an Administrative Proceedings panel, with quasi-judicial powers, to hear and determine the charges against the Appellants.

The Director General of the 1st Respondent who initiated the process and investigations relating to the Appellants was also the chairman of the Administrative Proceedings Committee i.e the 2nd Respondent, The Director General's panel summoned the Appellants to appear and explain why sanctions should not be imposed against them for the already determined "violations,, of capital market laws, rules and regulations.

The parties at the hearings (APC/1/2007) before the 1st Respondent's panel (i.e. the 2nd Respondent) were:

(1) The Securities and Exchange Commission (1st Respondent)

(2) Cadbury Nigeria Plc and its Directors.

(3) The Appellants (page 78 of the Record of Appeal)

The panel was constituted by members and officers of the 1st Respondent that investigated and drew up the charges against the Appellants; they included its Commissioners, Legal Adviser, the Director General, Mr. Musa Alfaki, who chaired the panel.

The Appellants did not participate due to a pending appeal.

After deliberations on the investigation report, the panel on the 27th & 28th March, 2008 arrived at decisions against the Appellants, which included suspension as Directors of Cadbury (Pages 14, 15 and 42 of the Record of Appeal).

Aggrieved, the Appellants respectively filed processes at the Federal High Court, Lagos Division for these reliefs (Re in the matter of Application for leave to apply for the Enforcement of their respective Fundamental Rights to fair hearing.)

(a) A DECLARATION that the mode and manner in which the investigation, hearings and decision were taken against the Appellant by the Respondents did not secure "the fairness, independence and impartiality of the Respondent as required under section 36 of the 1999 Constitution of the Federal Republic of Nigeria."

(b) A DECLARATION that the Respondents' decision of 27th and 28th March 2008, reached in the absence of and without Notice to the Appellants violated the Applicants' fundamental rights to fair hearing guaranteed under section 36 of the Constitution of Federal Republic of Nigeria 1999. (c) A DECLARATION that the entire decisions making process of the Respondents pursuant to section 259 of the Investments and Securities Act 1999, and particularly the decision reached against the Applicants is unconstitutional and contrary to section 36 of the 1999 Constitution of the Federal Republic of Nigeria, which requires that the decision must be made in a manner that serves the independence and impartiality of the relevant tribunal, and therefore the decision be declared null and void.

(d) AN ORDER restraining the Respondents from confirming and/or enforcing or giving effect to the decision reached at the sittings of 27th and 28th March 2008 in the absence of and without notice to the Applicant of such sitting.

(e) AN ORDER to set aside and nullify the entire action by the Respondents, and particularly, the proceedings of 27th and 28th March 2008, and the decision reached by the Respondents at those sittings on grounds that both violated the Applicants' fundamental right to fair hearing guaranteed under section 36 of the 1999 Constitution of the Federal Republic of Nigeria.

(O ANY ORDER OF SUCH ORDERS as the Court may make in the circumstances of this suit.

GROUNDS UPON WHICH THE RELIEFS ARE SOUGHT

(a) Section 36 of the 1999 Constitution of the Federal Republic of Nigeria guaranteed the Fundamental Rights of the Applicant to fair hearing by a Court or Tribunal constituted in such a manner as to serve its independence and impartiality.

(b) The Applicant is entitled to be informed of proceedings of the Respondent of March 27 and 28, 2008 were the far-reaching decisions of the Respondents were taken.

(c) The Respondents failed to act fairly and in particular, the 2nd Respondent, being a quasi-judicial body was under a constitution duty to act fairly but failed to reach decisions against the Applicant by an independent and impartial process served by section 36 of the constitution.

The 1st Appellant had at the Federal High Court holden in Lagos on the 17th of April 2008, filed a motion for the enforcement of his fundamental human rights and sought the following reliefs inter alia:- viz

(a) A DECLARATION that the procedure leading to the decision against the Applicant by the Respondents did not serve the fairness, independence and impartiality of the Respondents as required under section 36 of the 1999 constitution of the Federal Republic of Nigeria.

(b) A DECLARATION that the Respondents' decision of 27th and 28th March 2008 reached in the absence of and without Notice to the Applicant violated the Applicants' fundamental rights to fair hearing guaranteed under section 36 of the constitution of the Federal Republic of Nigeria, 1999.

(c) A DECLARATION that the entire decision making process of the Respondents under the Investments and securities Act 1999 and particularly the decision reached against the Applicants is unconstitutional and contrary to section 36 of the 1999 constitution of the Federal Republic of Nigeria, which requires that the decision must be made in a manner that secures the independence and impartiality of the relevant tribunal, and therefore the decision be declared null and void.

(d) A DECLARATION that the decision of the Respondents disqualifying the Applicant from holding directorship positions in any public company for a period of one year from the date thereof when he has not been proved guilty or convicted for an offence to warrant such disqualification usurps the powers of the Court vis-a-vis the disqualification of directors in the management of companies, and therefore the decision is null and void and violate the Applicant's right to fair hearing under section 36 (5) of the 1999 Constitution.

The 2nd Appellant also sought same orders (see pages 48-50; 99-101 of the Record of Appeal) on same date at the Federal High court, Lagos.

In response to these two applications, the Respondents at the court below filed a Motion on Notice challenging the jurisdiction of the Court to entertain the two suits. They also filed their respective counter affidavit on the 5th of May 2008 in answer to the Appellants/Applicants applications.

On the 5th of May 2008, the Learned Trial Chief Judge ordered that the two suits be consolidated and be heard together with the Notice of preliminary Objection.

At pages 165-169 of the Record of Appeal is the motion for preliminary objection filed by the Respondents/Applicants at the lower court.

In his judgment of 23rd September 2008, the Learned Trial Chief Judge dismissed the motion of 5th May 2008 and indeed the substantive consolidated suits.

The Appellants filed their brief of argument on the 24th of February, 2009 while the Respondents filed their brief of argument on the 1st of June 2009 which was deemed filed and served on the 9th of December 2009. The Appellants filed a reply brief to the Respondents brief on the 11th of January 2010.

In the Appellants' reply brief on point of law to the Respondents brief, they had submitted that two issues arise from the Respondents brief.

(1) Whether the right to fair hearing as guaranteed by Section 35(2) of the 1999 Constitution is absolute or whether it is subject to Section 36(2) of the Constitution.

(2) Whether the Appellants had any burden to adduce further evidence in order to prove a real likelihood of bias.

I shall deal with this later on in this Judgment.

In their brief of argument, the Appellants had distilled two issues for determination from their three grounds of appeal.

They are:

(i) Whether the manner of composition of the 1st Respondent's panel (the 2nd Respondent) and the decisions reached against the Appellants did not impair the right of the Appellants to fair hearing and if it di4 will the decision of the Learned chief Judge stand?

(ii) In view of the decision of the Supreme Court in L.S.P.D.C VS. FAWEHINMI whether the Learned Chief Judge was right in holding that the Appellants ought to have shown specific evidence of bias to succeed, when the law does not require actual proof of bias in matters relating to fundamental rights or at all.

(i) The Respondents in their brief of argument had proffered two (2) issues for determination.

(i) Whether the respective rights to fair hearing of the Appellants enshrined in section 96 of the 1999 Constitution of the Federal Republic of Nigeria are absolute and not qualified in any manner so as to trigger an automatic breaching of fair hearing by the Respondent in the ordinary cause of the discharge of by the Respondents their statutory duties? And that this issue No.1 flows from ground 1 and issue No. 1 in the Appellants' brief of argument.

(ii) Whether in fact, in view of the available evidence before the lower court, the Appellant proved that the respective rights to fair hearing of the Appellants was breached by the Respondents in the circumstances?

Arguing the first issue for determination in his brief of argument, learned counsel for the Appellants, Olisa Agbakoba OON, SAN, submits that issue No. 1 is distilled from Ground No. 1 in the Notice of Appeal, while Issue No. 2 is tied to Grounds 2 and 3 of the Notice of Appeal and Issue No.2 of the Respondents brief. That ground 3 relates to Issues Nos. 1 and 2.

He submits that the Learned Trial Chief Judge ignored and failed to evaluate and apply the evidence before him on the question, whether the Appellants were given a fair hearing by the Respondents, in view of the composition of the 2nd Respondent's panel and the active involvement of the principal officers of the 1st Respondent, particularly its Director General in the process leading to the investigation, and decisions, reached against the Appellants, referring to Appellants statement and Annexures A1 and A2 attached to same, – (pages 5 – 6 paragraph 11; 30 – 31, pages 71 – 73 paragraphs 11 – 15 and pages 104 – 105) of the Record. Refers also to the Counter Affidavit of the Respondents dated 5th of May 2008 together with the Exhibits attached thereto – pages 154 – 165; 176 – 184 of the Record of Appeal, and the Respondents further affidavit (pages 222 – Z52 of the Record of Appeal).

The fulcrum of the Appellants' Issue No 1 is that the 1st Respondent acted in the capacities of Investigator, Prosecutor and Judge. Learned counsel for the Appellants contends that first of all the matter in question was between the 1st Respondent and the Appellants. Second of all, it came before the 2nd Respondent's Administrative Proceedings Committee established by the 1st Respondent, which also took the decisions complained against, and third of all, the charge of allegations against the Appellants was prepared and signed by the 1st Respondent (Annexure 2 at page 119 of the Record of Appeal.)

Learned counsel argued that the Respondents did not deny this evidence.

They did not deny that the 1st Respondent was the complainant as indicated on the face of Annexures 1 and 2, neither did they deny that its Director General Mr. Musa Al-faki, who initiated the investigation, was also the Chairman of the panel before which the Appellants was prosecuted and decisions taken against them. The Respondents never denied that the Chief  Investigation who was also the Chief Prosecutor, is an employee and principal officer of the 1st Respondent under the direction and control of the Director General (Chairman of the panel.)

He argued further that with ample admission of the Appellants evidence, the Learned Trial Chief Judge erred when he failed to hold that the composition of the 2nd Respondent did not meet the standard of independence and impartiality required by Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999.

Referring to paragraph 2 of the Respondents' counter-affidavit at the lower court, learned counsel submits that in an attempt to justify the clumsy composition of their Administrative Proceedings Committee, the Respondents gave evidence as follows:

"Statutorily, the 1st Respondent is empowered to exercise administrative, investigative and quasi-judicial functions. To achieve efficiency and impartiality, the members of the Investigation/Enforcement department are distinct from and excuse functions separate from the members of the Administrative Proceedings committee (2nd Respondent) of the Securities and Exchange Commission (1st Respondent………….."

Page 156 of the Record of Appeal.

Learned counsel contends that by this, the Respondents admit the Appellants complaint of unfair hearing. This is because

(a) The Respondents accept that they are "all-in-one", to exercise investigative and quasi-judicial function and to also exercise administrative control over these functions.

(b) In order to maintain "impartiality- the Respondent very kindly remember to keep their different functions separate, so that those who investigate do not also prosecute and act as judges.

(c) This is fair enough but that the evidence shows that the Respondents did not remember and actually forgot to keep their functions of investigation, prosecution and adjudication separate and distinct.

He submits that they muddled everything. He contends that the test of fair hearing is not subjective or at the behest of the Respondents. The test of fair hearing is not to be found in Statute Law, for example the Investment and Securities Act which is the basic operating law of the Respondents. He submits that the test of fair hearing is an objective test, which is prescribed by Section 36(1) of the Constitution 1999, a point which was regrettably not taken by the learned trial chief Judge, even though the issue was extensively dealt with at the High Court below.

He submits that the Statutory justification relied upon by the Respondents cannot stand in view of the firm position of the Supreme Court in FAWEHINMI us. L.P.D.C. 1985 2 NWLR Pt 7, page 300 where the court had this to say inter alia;

"It is relevant to state that the provisions of Section 33(1) (now Section 36(1) of the Constitution may be in fringed

(i)

(ii)

(iii) By a tribunal duty constituted pursuant to the provisions of a law validly enacted BUT adopting a procedure which falls short of the "fair hearing', requirements of the subsection."

Learned counsel submits that the case of FAWEHINMI VS. L.P.D.C. is in pari materia with the case before this court.

He submits that the composition of the panel (2nd Respondent) failed to observe the sacred rules of natural justice, which disallows a person to be a judge in his own cause or matter.

Referring to Annexure 2 at page 119 of the Record of Appeal, he submits that it shows that the 1st Respondent was complainant in the matter and that the 2nd Respondent that heard the complaint against the Appellants was chaired by the Director General of the 1st Respondent, who was the complainant in the first place.

Restating the provisions of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, he submits that these provisions were urged on the learned trial Chief Judge at the court below.

That the learned trial Chief Judge failed however to apply the test or standard in determining compliance with the requirement of Section 36 of the Constitution, which is the OBJECTIVE TEST or standard, as he failed to consider the evidence in relation to the acts of the Respondents in the context of Section 36(1), as to whether the Respondents satisfied the stringent requirement of fair hearing in their dealings with the Appellants.

He argues that had the learned Chief Judge evaluated the evidence, he should have, accepted the claim of the Appellants that the Respondents violated their right to fair hearing.

That the Learned Trial Chief Judge relied on Section 310 of the Investment and Securities Act 2007 which provides thus:

Section 310(1)"…………. The commissioner may appoint one or more committees to carry out on its behalf; such of its functions as the commissioner may determine…….."

That this provisions led the learned chief Judge to hold that

"…………..it is my view that when the provisions of Section 310 of the Investment and Securities Act is read together with Section 36(2) of the Constitution, I am unable to say that the act of SEC in constituting the said committee to determine questions concerning the functioning and operation of the capital market operators is contrary to the principles of natural justice enshrined in the Constitution….."

Pages 378 and 379 of the Record of Appeal.

He submits that the case of the Appellants is that the decision reached against them by a Committee of the Respondents was conducted in a manner that violated their fundamental rights to fair hearing as the Respondents had in reaching those decisions acted as complainants, investigators, prosecutors before a panel under its control and administration.

The Respondents as it were took far reaching decisions against the Appellants, in the course of which they failed to meet the independence and impartiality threshold guaranteed by Section 36(1) of the Constitution.

He argues that Section 310(1) (Supra) which the learned trial Chief Judge relied on did not exempt the Respondents from compliance with Section 36(1) of the Constitution.

Arguing Issue 11, learned counsel agrees that in his judgment, the learned trial Chief Judge held inter alia that the Appellants had failed to provide specific evidence of bias because the Appellants did not set out specific particulars of bias. That the Learned Trial Chief Judge had relied on ANYEBE V. ADESIGUN 1997 5 NWLR Pt. 505 where it was held that an allegation of bias on the part of a trial judge other than on the basis of pecuniary intent must be supported by clear, direct, positive and unequivocal evidence from which real likelihood of bias could reasonably be inferred and not mere suspicion (pages 379 and 380 of the Record of Appeal.)

Learned counsel contends that facts in the case relied upon by the learned trial chief Judge are radically different from the present case.

He argues that in Anyebe's case the Appellant relied on bias on the basis that the Judges who were empanelled to determine removal from the office based on certain allegations were people who had sued in the past, complaining about how they ran the affairs of the judiciary. It was on this basis, that Anyebe believed that the Judges were biased in their recommendations.

He contends that the present case is different from that which obtained in ANYEBE'S case. That the gravemen of the present case is that the Respondents brought charges against them, prosecuted the charges and reached a decision on the same charges.

Urges court to hold that Anyebe's case bears no relationship with the present case.

Learned counsel argues that the term "likelihood of bias" is not capable of exact definition but that it differs from case to case, citing LPDC V. FAWEHINMI (supra) where the Supreme Court discussed examples where real likelihood of bias may be inferred, like personal attitudes, relationship, personal hostility and friendships, employer relationship, partisanship in relation to issues at stake, etc.

He submits that employer relationship and partisanship in relation to issues at stake apply to the instant case.

He argues that in the circumstances of this case, it is not necessary that there should be proof of actual bias, as it is presumed in law that it is enough if real likelihood of bias is established citing ADIO V. A.G. OYO STATE (1990) 7 NWLR Pt 163, page 448 at 477 – 478. Therefore he submits, the test for establishing real likelihood of bias is objective – that is to say, whether right minded people would think that there was a real likelihood of bias. He queries – "would a reasonable man presume that the Respondents who made allegations against the Appellants, and investigated the same allegations, through its principal officers, be biased, if the same principal officers are made to sit as judges over that same allegation?" He answers this question in the affirmative.

He argues that the learned trial Chief Judge was looking for evidence of bias, where there was a real likelihood of bias on the part of the Respondents against the Appellants.

He submits that the issue of bias is however irrelevant, in a situation where the Appellants establish that their guaranteed rights to fair hearing has been infringed by the Respondents.

He urges this court to resolve Issue II in favour of the Appellants, allow this appeal, and grant the reliefs claimed by the Appellants in their Notice of Appeal. The Respondents' brief of argument deemed filed on the 9th of December, 2009 was prepared by Okorie Kalu Esq. But on the 29th of November, 2010, when learned counsel for the respective parties adopted their briefs of argument, N. Orujwu Esq. of counsel, submits that two issues for determination arise as formulated by the Respondents and that issue No.1 flows from Ground 1 while Issue No.2 flows from Grounds 2 and 3 of the Appellants' Notice of Appeal.

Learned counsel for the Respondents Okorie Kalu Esq., argue that the interpretation given by the Appellants with respect to their constitutional right to fair hearing and alleged infringement thereof in their Appellants' brief is self indulgent and narrow, and that rather, the interpretation given by the lower court with respect to the said right is the proper interpretation.

He submits that the lower court rightly dismissed the suits at the lower court in view of the affidavit and documentary evidence before it and the admissions therein, the Appellants having failed to prove his case on a preponderance of evidence.

He argues that the provisions in the constitution of the Federal Republic of Nigeria 1999 which deals with fair hearing (i.e Section 36 thereof) is two fold i.e. civil and criminal, as that section takes time to respectively address the right to fair hearing in civil circumstances and in circumstances where crime is involved. He submits that where the question of the right to fair hearing is raised in civil proceedings, as in the instant case, the applicable parts of Section 36 is Section 36(1-3) of the Constitution of the Federal Republic of Nigeria 1999.

He argues that Section 36(1) does not specifically state in what manner a court or other tribunal may secure independence and impartiality but rather delegates this duty to the National Legislator to establish in relevant statutes. He submits that Section 36(2) further provides a test by which impartiality can be fairly measured as having been achieved.

Learned Counsel submits that the Appellants counsel should not read Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 in isolation as that would amount to a total misconception of Section 36 of the Constitution.

That it is trite law that to give meaning to the wordings of a statute particularly the Constitution, its provisions must be read together and not in isolation; so as to give life to the intendment of the legislature, citing OBI V. INEC 2007 11 NWLR Pt. 1046; page 565 @ 664 paragraphs a – b at 690 paragraph 1; ISHOLA V. AJIBOYE 1994 6 NWLR Pt. 352 at 506; NAFIU RABIU V. THE STATE 1980, 8 – 11 SC. 130; A.G. BENDEL V. A.G. FE. 1981, 10 SC, 132 – 134 AND BRONIK MOTORS LTD. V. WEMA BANK 1983 NSCC 266 AT 240 – 241.

These cases, he submits, have settled the law, that a broad and liberal spirit prevails where the courts interpret the provisions of the Constitution of the Federal Republic of Nigeria 1999.

He emphasized at paragraph 4.11 of his brief of argument at page 9 thus:

"The Supreme Court in the AG Bendel case (supra) also added the rider that

"While the constitution does not change, the changing circumstances of a progressive society for which it was designed will yield new and further import to its meaning" (per Obaseki JSC at page XX).

He argues that the Appellants' contention that Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999, as being the sole basis for determination of the issue of alleged infringement of the Appellants' right is not the proper basis upon which the lower court would have been expected to scrutinize the impartiality or otherwise of the Respondents.

Learned counsel submits that the test laid down by Section 36(1) of the Constitution of the Federal Republic of Nigeria in civil matters is not absolute but qualified by Section 36(2).

He submits that in the last paragraph at page 377 of the Judgment, the learned trial judge considered the issue whether the 2nd Respondent was empanelled in the proper manner and whether the decision reached in view of the active involvement of principal officers of the 1st Respondent guaranteed the fairness, independence and impartiality guaranteed by Section 36 of the Constitution.

That the learned trial Chief Judge reviewed the provisions of Section 310 of the Investment and Securities Act 2007 (formerly Section 259) and systematically juxtaposed same with the standard laid down by the Constitution and particularly the qualifying Section 36(2) thereof.

He argues that an aggrieved persons had several recourse under the law by way of resort to the Investments and Securities Tribunal (1st) followed by an Appeal to the Court of Appeal, if necessary.

He submits that in the instant case, at the lower court, not only was the decision of the 2nd Respondent still inchoate, but also the Appellants engaged themselves in forum shopping and rushed to the lower court both in its Abuja Division and subsequently its Lagos Division, without resorting to the Investment and Securities Tribunal.

He submits that Section 7 ISA 1999 (now Section 12 of ISA 2007) binds members of the 1st Respondent to the Code of Ethics approved by the Minister for the 1st Respondent, and this Code of Ethics indeed and infact binds the members of the 1st Respondent which includes its Director General, to establish and maintain high regulatory standards for the securities industry. That the Code of Ethics particularly prescribes that the members of the 1st Respondent shall maintain the observance of procedural fairness.

He argues that there is no allegation that the Director General has ever broken this Code or that he was in breach of this Code at any time material to the suits.

Learned counsel urges this court to presume and conclude that at all material times of this suit, the DG acted in consonance with the Code of Ethics which binds him as a member of the 1st Respondent.

He argues that Section 35(1) of the Constitution did not spell out the manner in which a tribunal or court may be constituted so as to serve its independence and impartiality. He submits that Section 36(2) of the Constitution gives flesh to Section 36(1) in respect of administrative tribunal as when the 1st Respondent acts in a quasi judicial capacity.

He submits that the ISA meets the requirement that a tribunal or body shall not be invalidated provided the party concerned is giving an opportunity of being heard and the decision of that body is not final.

Learned counsel has argued that the basis of the Appellants' submission lies in the contention that the doctrine of separation of powers under the constitution prohibits the vesting of executive; legislature and judicial powers in one institution.

Distinguishing the case of LPDC V. FAWEHINMI (supra) from the present case, which was so heavily relied on by learned counsel for the Appellants' in paragraph 4.14 to 4.20 of his brief, learned counsel for the Respondents in paragraphs 4.28, at page 16 of his brief of argument, submits inter alia, that the factual situation and statutory role envisaged in that case and the instant case are not the same. He argues that other than the Appellants statement of facts supporting the allegations in their claims at the lower court, the Appellants did not show by affidavit evidence that the Respondents were "three in one"' secondly, the Attorney General of the Federation whose decision was in issue in LDPC v. FAWEHINMI'S case was not given any special statutory role in regulation of the legal profession as the 1st Respondent was given under ISA.

In his paragraph 4.32 at page 18 of his brief of argument, learned counsel submits that section 36 of the 1999 constitution is not absolute, and that the lower court rightly found, after comparing the enabling Act setting up the 1st Respondent as a super regulator, that nothing in the provisions of ISA could be tantamount to lack of due process and inherent violation of fair hearing.

Regarding Issue 2, learned counsel submits that in answer to Issue 2, it is settled law that he who asserts must prove. Submits that the Appellants had adduced no evidence of bias. That the legal arguments of the Appellant in the Appellants' brief portraying themselves as statement of facts under inter alia paragraphs 2.01, 2.02, 2.04 cannot overturn the evidence that was established before the lower court.

Urges Court to discountenance all the portions of sentence beginning from "it is remarkable———"to the tail end of paragraph 2.02 of the Appellants, brief as being legal arguments or opinion and not a statement of brief or narration of any relevant facts.

Learned counsel has argued that the Appellants did not show in their affidavit evidence that the panel constituted by the 2nd Respondent, was constituted by the same members and officers of the 1st Respondent that investigated and drew charges against the Appellants, to wit; the 1st Respondent, commissioners, Legal Advisers and Director General.

He submits that the Respondents did not in any way admit the Appellants, averments in their "affidavit pleading" in support of their case.

That the Respondents provided uncontroverted documentary evidence showing that the 2nd Respondent issued personal letters of invitation as well as hearing notices on two distinct occasions, firstly to the Appellants, and subsequently through their counsel, after the public hearings had commenced.

He further submits that the Appellants, even as observed by the learned trial Chief Judge in his judgment (pages 380-382 of the Record of Appeal) found that the Appellants chose not to participate in the 2nd Respondents, proceedings – despite notice (page 382 of the Record of Appeal). He further observed that they had the opportunity to participate in the hearings by the 2nd Respondent but chose not to – purportedly on the basis of a pending appeal. He submits that, that was an admission by the Appellants which needed no further proof.

Therefore, he submits, the right to fair hearing under Section 36 of the Constitution of 1999 was waived by the Appellants citing ARIORI V. ELEMO 1983 NSCC 7, Ratio 4.

Learned counsel urges this court to hold that there is no positive material, or cogent evidence, to support allegation of bias. They are bound to provide positive materials which an Honourable Court may rely on in testing whether or not real likelihood of bias exists. In the absence of such positive material, he submits that the Appellants' suit and this present appeal are founded on speculation – citing USANI v. DUKE 2006 17 NWLR Pt. 1009 610, LPDC V. FAWEHINMI 1985 2 NWLR Pt. 7, 300.

Referring to the case of LPDC V. FAWEHINMI (supra) relied heavily on by the Appellants in their brief of argument, learned counsel submits that there is in this case no allegation of any "personal" nature contained in the Appellants' entire case which could be interpreted as creating a situation where at least a substantial possibility of bias may be inferred.

He submits that, applying the "objective test" to the instant case, there are no facts, which could cause the fear of the real likelihood of bias, particularly as the Appellants have repeatedly admitted that the Respondents, which possess the special challenge of regulating the Securities Market in Nigeria (unlike the A.G. in the LPDC case supra) merely acted in accordance with legitimate and constitutionally sound powers.

Submits that unlike the LPDC case (supra), all opportunity was given to the Appellants of being heard before the 2nd Respondent, and that the Appellants did in fact attend the 2nd Respondents proceedings but refused to make any representations on the allegations thereat (pages 154 – 178 of the Record). He urges court to peruse Exhibits A1 and B2 attached to the counter affidavits filed by the Respondents to the Appellants' application in the Fundamental Rights Procedure, which exhibits were the hearing notices issued by the 2nd Respondent and ignored by the Appellants.

He submits that the Respondents, as conceded to by the Appellants, validly possessed statutory functions or powers vested on the 1st Respondent by the ISA 99, which powers and functions involve administrative, investigative and quasi judicial functions.

Learned counsel cites WITHRON V. LARKIN 42 US 35 (1975), where the U.S. Supreme Court stated that a claim that due process was breached would fail unless the party who alleges the breach can demonstrate some particular bias which goes beyond the mere combination of presenting and adjudicating functions in single agency.

Now, the issues formulated in my view flow from the grounds of appeal and indeed relate to same.

Looking at the issues formulated by the respective Counsel, it seems to me that they dovetail in the sense that they deal with the same subject. This is because the issues of fair hearing and bias are what obtain and run through their respective cases.

Learned counsel for the Respondents has urged court to discountenance all the portions of sentence beginning from "it is remarkable…………" to the tail end of paragraph 2.02 of the Appellants brief as being legal arguments or opinion and not a statement of brief or narration of any relevant facts.

Section 87 of the Evidence Act has this to say:

'An affidavit shall not contain extraneous matter by way of objection; or prayer or legal argument or conclusion." (underlined for emphasis).

A cursory look at paragraph 2.02 in the Appellants brief from the portion that commences with "it is remarkable……." to the tail end of that paragraph, shows counsel's submission, which in my view amounts to legal arguments and/or conclusions, which have no place in our Law of Evidence or affidavits.

But briefs of argument do not fall into this category as they, by their very nature amount to addresses of counsel, and not evidence, or affidavits.

The submission of learned counsel for the Appellants that the prayer offends Section 87 of the Evidence Act is therefore a total misconception and same is hereby discountenanced.

The gravemen of the Appellants' case is that the complainant, investigator, prosecutor and judge is one and the same person; that is to say that the 1st Respondent acted in various capacities. That the decision makers, investigators, prosecutors and complainants were related by employer- employee relations as they are all staff of the 1st Respondent. That the 2nd Respondent is merely a committee of the 1st Respondent with no independence as to secure its impartiality. The 2nd Respondent therefore had no independence of its own as it lacked the capacity to be impartial or unbiased. It is controlled by the 1st Respondent.

The Appellants agree that the Respondents possess the special challenge of regulating the Securities and Securities Market in Nigeria, pointing to Section 1 of the Investment and Securities Act 1999"

At page 34 of the Record of Appeal, it shows that there were 21 persons and companies to face the committee set up by the 1st Respondent, the 1st Appellant being No. 2 on the list of Respondents as it were, while the 2nd Appellant is No. 12 on the statement of the 2nd Appellant (their Applicant). In support of his application for leave to apply for the enforcement of his fundamental rights to fair hearing, he had in paragraphs 1, 2 and 3 deposed thus:

Paragraph 1    "The 1st Respondent is an agency of the Federal Government of Nigeria responsible inter alia, for coordination of enforcement of regulations on Investment and Securities business in Nigeria:

Paragraph 2 "The 2nd Respondent is a committee of the 1st Respondent constituted to hear and determine allegations of violations of the Investment and Securities Act against the Appellant and other members of the Board of Directors of Cadbury Nigeria Plc.

Paragraph 3 "The Appellant is a Non-Executive Director of Cadbury Nigeria Plc, a company registered in Nigeria and listed on the Nigerian Stock Exchange."

The Applicant is the 2nd Appellant. Pages 3 – 4 of the Record of Appeal.

In the statement of facts of the 1st Appellant (in the matter of the Application for leave to apply for the Enforcement of his fundamental rights), paragraphs 1 and 2 thereof, are a reproduction of paragraphs 1 and 2 of the 2nd Appellants statement of facts.

However, the 1st Appellant, in his paragraph 3 had this to say:

"The Applicant is the Chairman of Cadbury Nigeria Plc, a company registered in Nigeria and listed on the Nigerian Stock Exchange, and also serves on the Board of other registered companies listed on the Nigerian Stock Exchange."

Page 69 of the Record of Appeal.

So, the Appellants are agreed (words from their own mouths) that the 2nd Respondent is a committee of the 1st Respondent constituted to hear and determine allegations of violations of the Investment and Securities Act against the Applicant and other members of the Board of Directors of Cadbury Nigeria Plc.

From records, the decision of the alleged body did not only affect the Appellants but other bodies and indeed individuals (pages 58 – 66 of the Record of Appeal.)

 

The Constitution of the Federal Republic of Nigeria is Supreme and its provisions shall have binding force on all authorities and Persons throughout the Federal Republic of Nigeria. Therefore if any other law is inconsistent with the provisions of the Constitution, the Constitution shall prevail and that other law shall to the extent of the inconsistency be void'

      

In ADIGUN v. A.G, OYO STATE 1987 NWLR Pt. 53, Page 678 at 707 particularly at 709 paragraph g, Obaseki JSC (as he then was) had this to say:

"If the principles of Natural Justice are violated in respect of any decision, it is indeed immaterial whether the same decision would have been arrived at, in the absence of the departure from the essential principles of Justice, the decision must be declared to be no decision,"

 

It seems to me, that the Appellants are quarrelling about the composition and/or competence of the Respondents at the hearing of the allegations brought against them.

The Respondents in paragraph 3(b) of their counter affidavit dated 15/3/2008 had this to say:

"The 1st Respondent is statutorily empowered to exercise administrative, investigative and quasi-judicial functions. To achieve efficiency and impartiality, the members of the Investigative/Enforcement department are distinct from and exercise functions separate from the members of the Administrative Proceedings Committee."

(The 2nd Respondent is responsible for hearing and deciding cases.

In paragraph 3(c) it says:

"The 1st Respondent is governed by the provision of the Investment and Securities Act and the rules and regulations which enshrine fair hearing in the dispensation of natural Justice."

3(d) "The internal processes and procedures of the Respondents generally guarantee fair hearing by ensuring that the departments including its members are distinct from each other"

3(e) "The members of the 2nd Respondent include representative of regulatory bodies in other segments of the capital market as well as representatives of the capital market."

There was no reaction and or reply to these averments by the Appellants at the trial. The facts are in law deemed admitted.

 

In Section 36(1) and (2) of the Constitution of the Federal Republic of Nigeria 1999, it says:

36(1) "In the determination of his civil rights and obligations, ' including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.-

(2) Without prejudice to the foregoing provisions of this Section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine questions arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law -

(a) Provides for an opportunity for the person whose rights and obligations may be affected to make representation to the administering authority before that authority makes the decision affecting that person; and

(b) Contains no provision making the determination of the administering authority final and conclusive.

There is no doubt that the Respondents activities are governed by statute i.e. the Investments and Securities Act 1999.

Admittedly, Section 36(1) of the Constitution only stipulates that such court or tribunal shall be established by law and constituted in such a manner as to secure its independence and impartiality. (Underlined for emphasis). Therefore, it is correct to say that the term "independence and impartiality" are conjunctive. They must work together. The court or tribunal or body in question must enjoy independence and must be impartial.

 

The powers and functions of the 1st Respondent are spelt out in Section 8 of the Investment and Securities Act 1999 (now Section 13 ISA 2007), and their powers include the power to regulate and protect the integrity of the Securities Market and to prevent fraudulent and unfair trade practices relating to the Securities Industry in Nigeria. The Appellants do not deny this as shown in the Statement of the Appellants (as adumbrated earlier on in this judgment.)

Section 12 of the ISA 2007 binds the members of the 1st Respondent to the Code of Ethics approved by the Minister for the 1st Respondent. The Code of Ethics binds the members of the 1st Respondent including its Director General to establish and maintain high regulatory standards for the Securities Industry, it prescribes also that the members maintain "the observance of procedural fairness" (Underlined for emphasis).

The quarrel of the Appellants is not that the Director General of the 1st Respondent breached or broke this code at any time; preceding the initiating of the suits against the Respondents at the lower court.

The 1st Respondent is empowered by Section 310 of ISA 2007 to appoint committees to carry out on its behalf "such of its functions as it may determine." That provision also contemplates the appointment of external persons not in the employment of the 1st Respondent to serve in the said committee, and these committees are distinct and separate from each other.

The 2nd Respondent is created distinct by statute from the 1st Respondent by virtue of Rule 313 of the Rules and Regulations made pursuant to the ISA 2007 (underlined by me).

I do not share the view that the 2nd Respondent is a committee set up to do the bid of the 1st Respondent or subjected to any whims and caprices of whoever. Indeed the 2nd Respondent owes a duty in law, governed by the ISA 2007, as well as the Rules and Regulations made there under, to protect the right to and concept of fair hearing in the discharge of its duty and in particular in the dispensation of Justice. There is therefore a presumption of law that the 2nd Respondent adheres to the rules of natural Justice and that its affairs would be governed by Section 36(1) of the Constitution of the Federation of Nigeria, from where flows the stream of the relevant statute that governs it, that is to say the I.S.A. 2007.

 

Section 36(2) imposes a caveat that bodies and tribunals vested with Judicial or quasi-judicial powers shall not be invalidated provided the party concerned is given an opportunity of being heard and the decision of that body is not final.

 

Notably is that no where in the decision taken by the committee did it state that its decisions are final.

The Appellants were given the opportunity to appear and indeed sent representatives at the hearing. In paragraph 6 of the Statement of the 2nd Appellant (as Applicant) in the court below he averred

"In furtherance of the aforesaid committees' report, the 1st Respondent constitutes the 2nd Respondent a quasi-judicial body, and invited the Applicant (together with other members of the Board of Cadbury Nigeria Plc) to appear before the committee to show why sanction should not be imposed upon him for the alleged violations of the Investment and Securities Act 1999."

Pages 4 and 70 of the Record of Appeal. (Underlined for emphasis.)

Simply put therefore, the Appellants had admitted that they were invited by the Respondents to the hearing, or to send representatives.

 

Nowhere in the Appellants statement of facts at the lower court (which constitutes evidence in that court) did they state that they were denied fair hearing. Their statement of facts amounted to their pleadings, which must be direct, pointed, and unequivocal.

With respect, it is foolhardy for the Appellants to now argue the issue of fair hearing in their brief of argument – a fact not pleaded in their statement. Whatever evidence is given ostensibly in support of facts not pleaded in their statement at the court below go to no issue. The law is settled unequivocally on that.

 

The Appellants were aware of the proceedings before the 2nd Respondent and indeed they were served with the hearing notices.

In EZENWA V. BESTWAY & ORS, 1998 8 NWLR Pt 330 at 82, it was held inter alia that:

"No one is denied the right to fair hearing when he was notified or given the opportunity of being heard."

Learned counsel for the Appellants had argued (wrongly in my view) that employer relationship and partisanship in relation to issues at stake, apply to this case.

I dare say that the categories of fair hearing are never closed as it depends on the peculiar circumstances of each case.

The Appellants have been unable to establish that M.C.A. Udora, who is alleged by the Appellants to be the Chief Prosecutor of the 1st Respondent, is a member of the 2nd Respondent. There is nothing to show that he is or ever was for that matter.

There is really no allegation by the Appellants that the Respondents exceeded their statutory limit, latently or patently.

This is because the fulcrum of the Appellants' case is that the Complainant, Investigator, Prosecutor and Judge in the matter against them, was one and the same person. These according to them are the Respondents – Paragraphs 11 – 12 of the Applicants' statement at pages 5 and 6 of the Record of Appeal.

The question is how legally healthy was the composition of the panel and or committee that heard the matter against the Appellants and others?

The learned trial chief Judge in his judgment postulates that the decision of the Administrative Proceedings Committee is not final. This is because under Section 310(3) of the Act, the decision of the committee shall be of no effect until it is confirmed by the Securities and Exchange Commission, and where a person is dissatisfied by the decision of a Tribunal, he may appeal to the Court of Appeal. Section 295(1) of the Act. He had held that in view of the combined effect of the provisions of Section 310 of the Act and Section 36(2) of the Constitution of the Federal Republic of Nigeria 1999, the act of constituting the said committee to determine questions concerning the functioning and operations of Capital Market Operations is not contrary to the principles of natural Justice enshrined in the constitution of the Federal Republic of Nigeria. I cannot agree more. There was nothing irregular in the composition of the committee by the Respondents to look into the matter, and I so hold.

Accordingly Issue 1 of the Appellants must be resolved in favour of the Respondents and same must be answered unequivocally in the Negative.

 

On Issue No.2, learned counsel in his brief of argument cited the case of LPDC Vs. FAWEHINMI 1985 2 NWLR Pt.7 page 300, and dwelt on it exhaustively as buttressing his submission in support of Issue No 2. He contends that this case falls within the ambit and scope of "employer relationship" and "partisanship" in relation to the issues at stake. That these are examples of likelihood of bias. That there is likelihood of bias in this circumstances.

On his Part, learned counsel for the Respondents postulates and argues that there is uncontroverted documentary evidence showing that the 2nd Respondent issued personal letters of invitation as well as hearing notices on two distinct occasions to the Appellants in the first instance and subsequently through their counsel after the public hearing had commenced (facts which the Appellants admitted in paragraph 2.04 of their brief of argument.)

Indeed the learned trial Chief Judge found (rightly in my view) that the Appellants chose not to participate in the 2nd Respondents proceedings despite notice. This simply means that they had the opportunity to participate in the hearings by the 2nd Respondent but chose not to purportedly on the basis of a pending appeal.

In ANYEBE V, ADESIGUN 1997 5 NWLR Pt 505, it was held that an allegation of bias must be supported by "clear, direct, positive and unequivocal evidence from which likelihood of bias could be reasonably inferred.

Regrettably, the Appellants have been unable to show such evidence In LPDC V, FAWEHINMI (supra) the facts of which are radically different from the case in hand, the apex court laid down the test that real likelihood of bias must exist and this can be discovered from the surrounding circumstances. That the test of the existence of real likelihood of bias is objective i.e. what the man (in my view) at the "Isolo bus-stop" or any reasonable man would say, faced with the facts and circumstances.

Unlike the LPDC case, all opportunity was given to the Appellants in this case but they chose to turn it down. Where then is the bias?

In ABANA V OBI 2005 6 NWLR Pt 920 page 183, it was held that a litigant who had the opportunity to present his case before the court but fails to do so cannot be heard when he turns around to complain of the breach of his right to fair hearing.

In DR BENTLEY'S CASE 1723 R V. CHANCELLOR OF CAMBRIDGE UNIVERSITY 1716 1 STR, 557, it held

"Even God Himself did not pass sentence upon Adam before he was called upon to make his defence"

Confidence is the hall mark of Justice. This is so because Justice is rooted in confidence. This confidence is destroyed when right minded people go away thinking "The Judge is biased."

The Appellants, with respect have shown no iota of bias against the Respondents, and I so hold. Neither can bias be inferred from the circumstances placed before the learned trial Chief Judge.

There is no pedestal for it. There is no evidence to support it, whether express or implied. It was simply speculative. Without belabouring the issue, consequently Issue No. 2 must necessarily be answered in the affirmative and resolved in favour of the Respondents.

 

On the two issues raised in the Appellants reply brief, earlier adumbrated in this judgment, learned counsel for the Appellant has argued relating to Issue No.1 that the right to fair hearing as guaranteed by the 1999 Constitution is absolute and hinged on the two cardinal principles of natural justice i.e. (the twin pillars of Justice). For this reason, he argues, once a court or tribunal is not constituted in such a manner as to guarantee the right to fair hearing, any decision emanating from that court or body is a nullity and liable to be set aside.

Citing ADIGUN V. A.G. OYO STATE 1987 NWLR Pt. 53 pages 678 at 707, paragraph 9.

With respect, that may be so. But in A.G BENDEL STATE V. A.G. FED. (supra), Obaseki JSC(as he then was) had this to say:

"While the Constitution does not change, the changing circumstances of the progressive society for which it was designed will yield new and further import to its meaning."

. It stands to reason. A dynamic Constitution must take into account the mechanics of a changing polity. While it holds on tenaciously to its lot, it must yield, depending on the circumstances of each particular situation to the aspirations of a changing society. This is why the provisions of Section 36(2) limits the provisions of Subsection (1), and indeed the combined effect of Sections 36(1); 36(2) and 36(3) of the 1999 Constitution gives more import, flesh, and relevance to its intendment. While holding on to the need for fair hearing being uncompromised, it must be subject to flexible interpretation.

The result is that Issue No.1 in the Appellants reply brief to the Respondents brief must be answered in the affirmative and in favour of the Respondents.

 

Regarding Issue No. 2 of the Appellants reply brief to the Respondents brief, no where in paragraph 4.37 in the Respondents brief of argument did he say that at the trial court, Appellants did not adduce further evidence to show that the panel constituted by the 2nd Respondents was constituted by the same members and officers as of the 1st Respondent who investigated and drew charges against the Appellants (underlined for emphasis).

For purposes of elucidation, I deem it pertinent to reproduce verbatim, the facts in paragraph 4.37 of the Respondents brief deemed filed on the 9th of December 2009. It has this to say:

"Thirdly, in its statement of facts filed in support of their application at the lower court, the Appellants just made bare averments which were not supported by any sufficient materials. In after words, the Appellants did not show in their affidavit evidence that the panel constituted by the 2nd Respondent was constituted by the same members and officers of the 1st Respondent that investigated and drew charges against the Appellants, to wit, the 1st Respondent's Commissioners, Legal Adviser and Director General. We submit that neither did the Appellants provide sufficient materials – on the strength of which the Appellants are expected to win their otherwise imaginary case to convince the lower court, nor did the Respondents in any way admit the Appellants' assessments in their "affidavit-pleadings" in support of their case. Indeed, the Respondents specifically denied that the composition of the 2nd Respondents' panel was the same as the persons who conducted further investigations on the irregularities and fraudulent misstatements highlighted by the PWC report".

 

I dare say that there is nothing in the said Paragraph 4.37 of the Respondents' brief to support the averments made in paragraph 3.01 of the Appellants reply to Respondents reply brief. That argument on point of law is totally misconceived and is hereby discountenanced as having no root.

 

It stands to reason that when an issue of bias arises, same must be proven to show express or implied bias. Likelihood of bias can be inferred when the Law says that an allegation of bias must be supported by clear, direct, positive, and unequivocal evidence from which likelihood of bias could be reasonably inferred and not mere suspicion. It presupposes that a burden is placed or he who asserts bias. It is a burden placed by the law, and it does not shift. The Appellants have been unable to establish any likelihood of bias and I so hold.

 

Accordingly, that issue No. 2 must be answered in the affirmative and resolved in favour of the Respondents.

The Learned trial Chief Judge was right when at page 37 of his Judgment he said "The Appellants have failed to make out a case of likelihood of bias, as they have not set out particulars of bias".

In all, the learned trial Chief Judge, in my view properly articulated and

appraised the affidavit evidence before him in arriving at the conclusion which he rightly did, that the Appellants' rights to fair hearing have not been breached and that the decision of the Respondents are not a nullity, thereby dismissing the two suits.

The result is that the appeal is bereft of merit as being speculative and the decision of the learned trial Chief Judge ought to be affirmed and same is hereby affirmed. Consequently, the Appeal is hereby dismissed in its entirety with N40,000.00 costs in favour of the Respondents.

 

IBRAHIM MUHAMMED MUSA SAULAWA, J.C.A.: I was privileged to have read, before now, the draft of the lead judgment prepared and just delivered by my learned brother, the Hon. Justice R. N. Pemu, JCA. Having equally gone through the briefs of argument of the respective learned counsel and the record of appeal, as a whole, I concur with the reasoning and conclusion reached in the lead judgment, to the effect that the appeal is bereft of merit.

Hence, having adopted the said reasoning and conclusion as mine, I too hereby dismiss the appeal. The decision of the lower court, dated September 23, 2008 thereby dismissing the Appellants' preliminary objection, is hereby affirmed. I abide by the consequential order of cost of N40.000 awarded in favour of the Respondents.

 

ADAMU JAURO. J.C.A.: I was privileged to read before now the lead judgment of my learned brother, Rita N. Pemu J.C.A, just delivered. I entirely agree with the reasoning and conclusion reached therein.

In the circumstances of this case, the issue of fair hearing against the Administrative Proceedings Committee cannot avail the appellants. See S.E.C. v. Osindero Oni & Lasebikan (2009) 5 NWLR (Pt.1134) 377. Furthermore, a party cannot complain of being denied the right to fair hearing when he was notified or given the opportunity of being heard. See Ezenwa v Bestway & Ors (1998) NWLR (Pt. 330) 82 and Ariori v. Elemo (1983) NSCC 1.

For the above and fuller reasons contained in the lead judgment which I also adopt as mine, the appeal is lacking in merit and same is hereby dismissed. I abide by the consequential orders made, including order as to costs.