YELEBE & ORS v. A-G OF BAYELSA STATE & ANOR
(2020)LCN/15820(CA)
In The Court of Appeal
(PORT HARCOURT JUDICIAL DIVISION)
On Friday, August 14, 2020
CA/PH/146/2017
Before Our Lordships:
Ibrahim Mohammed Musa Saulawa Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Between
1. MR. SELEKOWEI ROBERT YELEBE 2. MR. KUNDE VICTOR YELEBE 3. MR. MEKIESE ROBERT YELEBE 4. MR. EMMANUELYELEBE 5. STANLEY YELEBE (For And On Behalf Of Yelebe Family Of Ovom-Yenagoa L.G.A. Bayelsa State) APPELANT(S)
And
1. ATTORNEY-GENERAL OF BAYELSA STATE 2. CAPITAL CITY DEVELOPMENT AUTHORITY BAYELSA STATE RESPONDENT(S)
RATIO:
WHAT IS MEANING OF THE WORD ‘COMPULSORY’
See ADEYEMI- BERO VS. LAGOS STATE DEVELOPMENT PROPERTY CORPORATION (2012) LPELR- 20615 (SC); SALEH VS. MONGUNO (2006) LPELR- 2992 (SC); MASTER, VS. MANSUR (2014) LPELR- 23440 (CA).
Invariably, the word ‘compulsorily’ denotes having the force of compulsion or to compel. The word “compulsory,” on the other hand, simply denotes situations where a person’s land is forcefully taken possession of. See AGRICULTURAL DEVELOPMENT ASSOCIATION, OBITTI, IMO STATE VS. OKEDI (2004) 11 NWLR (Pt. 884) 369 per Ikongbeh, JCA @ 394 – 395. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
WHAT IS MEANING OF ‘POSSESSION OF A PARCEL OF LAND’
In my considered view, the term possession of a parcel of land denotes the occupation or physical control of the parcel of land by a person either personally or through an agent, privy or servant thereof. See NITEL PLC VS. ROCKONOH PROPERTY COY LTD (1995) 2 NWLR (Pt. 378) 473; LADIPO VS. AJANI (1997) 8 NWLR (Pt.517) 356; OKEGBEMI VS. ARINTOLA (2008) 4 NWLR (Pt. 1076) 53; MASTER VS. MANSUR (2014) LPELR- 23440(CA) @ 26 – 31 paragraphs B-A. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
POSITION OF LAW WHERE A PERSON’S FUNDAMENTAL RIGHT IS BREACHED
Where a person’s fundamental right is breached, or about to be breached, that person has not merely a privilege but the right to apply under Section 46 to either the Federal High Court or the High Court of a state, or FCT in which the breach occurred, is occurring, or about to occur. See ADETONA VS. IGELE GEN. ENT. LTD (2011) 7 NWLR (Pt.1247) @ 535. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
POSITION OF LAW ON THE COMPULSORY ACQUISITION OF LAND FOR PUBLIC PURPOSE
Unmistakably, the provision of both the Grundnorm, the 1999 Constitution as amended, and the Land Use Act have provided for compulsory acquisition of land for public purposes and the compensation to be made to the owner of the land. See Section 44 (1) of the 1999 Constitution as amended (supra) and Sections 28 (1) (3) (a), 29 (1) (4) (b); and30 of the Land Use Act (supra).
Under Section 29 of the Land Use Act (supra), it is provided:
29. Compensation payable on revocation of right of occupancy by Governor in certain cases:
(i) If a right of occupancy is revoked for the cause set out in paragraph (a) of subsection (2) of Section 28 of this Act or in paragraph (a) or (c) of subsection (3) of the same section, the holder and the occupier shall be entitled to compensation for the value at the date of revocation of their unexhausted improvements.
(4) compensation under subsection (1) of this section shall be, as respects- (b) buildings, installations or improvements thereon, for the amount of the replacement of the building installation or improvement, that is to say such cost as may be assessed on the basis of the prescribed method of assessment as determined by the appropriate officer…
I agree with the Appellants, that by the nature and circumstances surrounding the instant case, the Court below has erred in law in declining jurisdiction to hear the matter on the erroneous ground that it was statute-barred. As aptly admonished by the Supreme Court:
“The moment a Court ceases to do justice in accordance with the law and procedure laid down for it, it ceases to be a regular Court but a Kangaroo Court.”
See EDU VS. ODAN COMMUNITY (1980) 5 – 11 SC 103 per Aniagolu, JSC @ 127. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
POSITION OF LAW REGARDING A MATTER BEEN STATUTE BARRED
“The cause of action which is the defendants act in dispossessing the claimants of the land took place in 1998. From that time to the period this action was filed spans a total of fourteen years. It is thus my deduction and finding that this action as filed is caught by the provisions of section 1 and 2 of the Limitation Law of Bayelsa State and accordingly the action is statute barred.”
In view of the far-reaching postulation under the first issue hereinabove, it is crystally obvious that the finding of the Court below, copiously alluded to above, is grossly misconceived. Most regrettably, by so coming to the foregoing conclusive finding, the Court below has unwittingly resorted to whittling down the overriding provisions of Sections 44(1) and 46(1) of the 1999 Constitution as amended in favour of the inferior provisions of Sections 1 and 2 of the Limitation Law CAP. L8, laws of Bayelsa State, 2006.
For the avoidance of any lingering doubt, It ought to be reiterated that the fact that both the constitution and the Acts of the National Assembly have an overriding effect over any state law, is no longer controversial. The provision of Section 1(1) of the Constitution is unmistakably to the effect that:
“This Constitution is Supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.”
Under Section 1 (3) of the said Constitution, it is equally provided:
“if any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”
POSITION OF LAW REAGARDING QUESTION OF BIAS
REX VS. JUSTICES, EX PARTE MCCARTHY (1924) 1 KB 256:
“It is not merely of some importance that justice should not only be done But should manifestly and undoubtedly by seen to be done.”
Per Lord Hewart, C.J. @ 259. IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A. (Delivering the Leading Judgment): The present appeal is against the ruling of the Bayelsa State High Court, delivered on February 26, 2016 in Suit No. YHC/144/2012. By the said decision, the Court below coram I. T. Cocodia J., dismissed the suit on premise that it was statute-barred, thereby stripping the Court of jurisdiction to hear and determine same.
BACKGROUND FACTS
The suit was instituted vide a writ of summons by the Appellants in the Court below on September 7, 2012. By paragraph 26 of the Statement of Claim thereof, filed along the with the writ, the Appellants claimed against the Respondents the following reliefs:
(a) A declaration that the acquisition of “Kpeikpei” land in Plan No. AB/BYS.001.ID/2012 as Judiciary Complex, Onopa without notice, assessment and compensation is a clear violation of the Land Use Act, 1978 and Section 44 of the CFRN, 1999, and same are illegal, unlawful, unconstitutional and abuse of the legal process.
(b) An order directing the Government of Bayelsa State through its relevant agencies to carry out proper assessment of claimants’ land appurtenances germane to compensate for loss of inter-generational use, economic crops, trees, and properties as prescribed by law.
(c) Concession of 50 (fifty) employment spaces to the claimant’s family.
(d) The sum N18,843,250.00 (Eighteen Million, Eight Hundred and Forty-Three Thousand, Two Hundred and Fifty Naira) only as Special Damages over destruction caused to economic crops, trees, fish-ponds, and property of claimants’ family.
On July 9, 2015, the Respondents filed in the Court below a notice of preliminary objection, thereby seeking the following relief:
1. AN ORDER of this Honourable Court dismissing and/or striking out this suit together with all the processes contained therein.
AND for such order or other orders as the Honourable Court may deem fit to make in the circumstance.
The Notice of Preliminary Objection was predicated upon two grounds:
“1. The action is statute barred.
2. In view of the above, this Honourable Court lacks the requisite jurisdiction to hear and determine this matter.”
The Notice of Preliminary Objection proceeded to hearing. The learned counsel filed and adopted their respective written addresses. The Court below delivered the vexed Ruling on the said February 26, 2016 to the following conclusive effect:
On the issue of whether or not this Court has jurisdiction to hear and determine this suit, it is observed that under Section 272 of the Constitution of the Federal Republic of Nigeria, 1999 as amended empowers this Court to hear and determine land matters. However when the issue of limitation of statute is raised it brings into question the jurisdiction of the Court to try the matter…
In conclusion, I find the preliminary objection well raised and meritorious and hold that thus action is statute barred.
Accordingly this Court is striped (sic) of jurisdiction to hear and determine this case.
The preliminary objection raised thus succeeds and this suit is accordingly dismissed.
On April 5, 2016, the Appellants filed their notice of appeal which is predicated upon three grounds, thereby urging this Court to allow the appeal, set aside the decision in question, and order for continuation of the trial at the Court below.
Consequent upon entering the appeal on 20/03/2017, the learned counsel proceeded to file their respective briefs of argument. Most particularly, the Appellants’ brief filed on 18/04/2017 by O.J.J. Makbre, Esq. spans a total of 22 pages. At pages 6-7 of the said brief, three issues have been couched:
1. Whether the trial Court was right to hold that the claim of the Appellants founded on breach of Section 44 of the Constitution of Federal Republic of Nigeria, 1999 (as amended) could be rendered statute-barred by the Sections 1 & 2 of the Limitation Law, Cap L. 8 Laws of Bayelsa State, 2006?
2. Whether the case of Egbe V. Adefarasin (1987) 1 NWLR 471. Pg. 258, cited by learned counsel for the applicants is applicable to the case of the Appellants?
3. Was the trial Court right to have found the ruling/judgment solely on the case, argument/submissions of counsel for the applicants?
The issue 1 is argued at pages 7 – 14 of the brief, to the conclusive effect that the Appellants’ claim (suit) made under Section 44(1) and 46(1) of the Federal Republic of Nigeria, 1999, could not have been held to be statute-barred by virtue of Sections 1 and 2 of the Limitation Law CAP. L. 8 of Bayelsa State, 2006. See KALU VS. ODILI (1992) 5 NWLR (Pt. 240) 130 at 188 SC.
The Court is urged to so hold.
The issue 2 is canvassed at pages 14 – 16 of the brief to the conclusive effect that the case law, EGBE VS. ADEFARASIN (1987) 1 NWLR (Pt. 471) 278, relied upon and the ratio decidendi informing the vexed decision of the Court below, were wrong. The Court is urged to accordingly discountenance the rationalization.
The issue 3 is extensively canvassed at pages 16-20 of the said brief, to the conclusive effect that the Court below failed to properly direct itself to the particular case of the Appellant founded on the provisions of Section 44(1) of the 1999 Constitution (supra). Thus, the Court below did not appreciate the Appellants’ case at all, which failure had far-reaching effect on justice. See pages 3-7 of the Record of Appeal; RAPHAEL UDEZE VS. PAUL CHIDEBE (1990) 1 SC 148; OGBORU VS. UDUAGHAN (2012) 2-3.
The Court is urged to so hold that this is a proper case where this Court ought to set aside the decision of the Court below.
Conclusively, the Court is urged upon to allow the appeal and set aside the decision of the Court below.
Contrariwise, the Respondents’ brief was settled by Tamadu Y. Abasi, Esq. Ag. DCL on 16/05/2017. That brief spans a total of 24 pages. At page 4 of the brief, the learned counsel has deemed it apt to adopt the Appellants’ 3 issues for determination of the appeal on the merits.
The issue 1 has been most extensively argued at pages 4- 14 of the Respondents’ brief.
In the main, it was argued that the Court below was right in finding at page 98 of the Record of Appeal, that Appellants’ claim was founded on a cause of action pertaining to land. Further argued, that the Court below was right to have struck out the matter on the ground that it was statute barred, based on the provisions of Sections 1 and 2 of the Limitation Law CAP. L8, Laws of Bayelsa State, 2006.
Relying upon the cases of OBIUWEUBI VS. CBN (2011) 11 NWLR (Pt. 1247) 465; JESSICA TRADING COY LTD VS. BENDEL INSURANCE COY LTD (1996) 10 NWLR (Pt. 476) at 12; OLADEKOYI VS. IGP (2011) 16 NWLR (Pt. 1273) 406 at 428 E-F, et al, it was postulated that Appellants’ failure to obtain the leave of the Court below to commence the matter under the Fundamental Rights (Enforcements Procedure) Rules, 1979, have rendered the suit statute barred. And that it is too late for the Appellants to come under the cover of the new rules- the Fundamental Rights Enforcement Procedure) Rules, 2009, which was not signed into law to operate retrospectively to accommodate the Appellant’s claim.
The Court is urged to resolve issue 1 in favour of the Respondents.
Issue 2 is argued at pages 14 – 16 of the brief, to the conclusive effect that the case of EGBE VS. ADEFARASIN (1987) 1 NWLR (Pt. 471) 258 was properly applied by the Court below. That even if the Appellants’ action was founded on breach of Sections 44 and 46 of the 1999 Constitution (supra), the case of EGBE VS. ADEFARASIN (supra) remains applicable, once the Court comes to the finding that the action was statute barred based on the Fundamental Rights (Enforcement Procedure) Rules, 1979.
The Court is urged to determine issue 2 in favour of the Respondents.
Lastly, issue 3 is extensively argued at pages 16 – 21 of the brief to the conclusive effect that the entire accusation of bias is based on speculation, conjectures, guess work and doubtful inferences.
Thus, this Court is urged upon to discountenance in totality the Appellants’ submission thereupon, and resolve the issue 3 in favour of the Respondents.
Conclusively, the Court is urged to dismiss the appeal.
In reaction to the Respondents’ brief, the Appellants have filed a reply brief on 14/06/2017. That brief spans a total of 12 pages.
By the said reply brief, the Appellants have urged upon the Court to hold that the Respondents’ brief of argument is clearly defensive of the road blocks to justice in a matter of fundamental human rights as the instant case, when there was non-compliance with the precondition to an acquisition as stipulated under the Land Use Act, and Section 44 of the 1999 Constitution (supra).
Having amply considered the far-reaching argument of the learned counsel contained in their respective briefs vis-a-vis the record of appeal, I am inclined to adopting the 3 issues canvassed by the Appellants and duly adopted by the Respondents’ learned counsel for the ultimate determination of the appeal, anon.
ISSUE NO. 1
The first issue raises the question of whether or not the Court below was right to hold that the Appellants’ claim founded on Section 44 of the Constitution of the Federal Republic of Nigeria 1990 (sic) as amended, could be rendered statute-barred by Sections 1 and 2 of the Limitation Law CAP. L8 Laws of Bayelsa State, 2006?
The provisions of Section 44 of the Constitution of the Federal Republic of Nigeria, as amended, as it relates to compulsory acquisition of land is subject of interpretation in a plethora of authorities. See ADEYEMI- BERO VS. LAGOS STATE DEVELOPMENT PROPERTY CORPORATION (2012) LPELR- 20615 (SC); SALEH VS. MONGUNO (2006) LPELR- 2992 (SC); MASTER, VS. MANSUR (2014) LPELR- 23440 (CA).
Invariably, the word ‘compulsorily’ denotes having the force of compulsion or to compel. The word “compulsory,” on the other hand, simply denotes situations where a person’s land is forcefully taken possession of. See AGRICULTURAL DEVELOPMENT ASSOCIATION, OBITTI, IMO STATE VS. OKEDI (2004) 11 NWLR (Pt. 884) 369 per Ikongbeh, JCA @ 394 – 395.
In my considered view, the term possession of a parcel of land denotes the occupation or physical control of the parcel of land by a person either personally or through an agent, privy or servant thereof. See NITEL PLC VS. ROCKONOH PROPERTY COY LTD (1995) 2 NWLR (Pt. 378) 473; LADIPO VS. AJANI (1997) 8 NWLR (Pt.517) 356; OKEGBEMI VS. ARINTOLA (2008) 4 NWLR (Pt. 1076) 53; MASTER VS. MANSUR (2014) LPELR- 23440(CA) @ 26 – 31 paragraphs B-A.
It was aptly held in ADA, OBITTI, IMO STATE VS. OKEDI (supra) that:
“the situation covers the circumstances of this case where the appellant using their powers as a statutory corporation of Imo State Government, continues to forcefully occupy the Respondents land and was even issuing public notices to chase away the respondents from their land… the facts of the case and evidence led apart from supporting the claim of trespass, also supported the alternative claim that the appellants’ behavior amounts to forceful taking of possession of the Respondents’ land… Under Section 40(1) any forceful taking possession of another’s land is unconstitutional just like cases of compulsory acquisition by government.”
Where a person’s fundamental right is breached, or about to be breached, that person has not merely a privilege but the right to apply under Section 46 to either the Federal High Court or the High Court of a state, or FCT in which the breach occurred, is occurring, or about to occur. See ADETONA VS. IGELE GEN. ENT. LTD (2011) 7 NWLR (Pt.1247) @ 535.
Unmistakably, the provision of both the Grundnorm, the 1999 Constitution as amended, and the Land Use Act have provided for compulsory acquisition of land for public purposes and the compensation to be made to the owner of the land. See Section 44 (1) of the 1999 Constitution as amended (supra) andSections 28 (1) (3) (a), 29 (1) (4) (b); and30 of the Land Use Act (supra).
Under Section 29 of the Land Use Act (supra), it is provided:
29. Compensation payable on revocation of right of occupancy by Governor in certain cases:
(i) If a right of occupancy is revoked for the cause set out in paragraph (a) of subsection (2) of Section 28 of this Act or in paragraph (a) or (c) of subsection (3) of the same section, the holder and the occupier shall be entitled to compensation for the value at the date of revocation of their unexhausted improvements.
(4) compensation under subsection (1) of this section shall be, as respects- (b) buildings, installations or improvements thereon, for the amount of the replacement of the building installation or improvement, that is to say such cost as may be assessed on the basis of the prescribed method of assessment as determined by the appropriate officer…
I agree with the Appellants, that by the nature and circumstances surrounding the instant case, the Court below has erred in law in declining jurisdiction to hear the matter on the erroneous ground that it was statute-barred. As aptly admonished by the Supreme Court:
“The moment a Court ceases to do justice in accordance with the law and procedure laid down for it, it ceases to be a regular Court but a Kangaroo Court.”
See EDU VS. ODAN COMMUNITY (1980) 5 – 11 SC 103 per Aniagolu, JSC @ 127.
In ENGINEERING ENT LTD VS. AG KADUNA (1987) 2 NWLR (Pt. 57) 381, the Apex Court equally re-echoes:
“One stream that permeates through all judicial decisions… is the clear, unadulterated water filled with a great concern for justice.”
Per Eso, JSC @ 398.
The Appellants have all along been yearning and crying for justice, for whatever their claim is worth. Accordingly, the Court below has an onerous duty to accord them every opportunity to ventilate the grievances thereof. Undoubtedly, the latin doctrine of Ubi Jus lbi Remedium, is very much in the present dispensation. As aptly once postulated by the Apex Court:
“it is also agreed that true justice must not be defective and no law in dispensing justice. The aphorism well established is that justice is to be denied to none. The well known Maxim is “Justitia Nemini Neganda Est.”
See ABACHA 2 SCNJ 119 Aderemi, JSC @ 136.
In the circumstances, the first issue ought and same is hereby resolved in favour of the Appellants.
ISSUE NO. 2
The second issue raises the question of whether the case of EGBE VS. ADEFARASIN (1987) 1 NWLR 471 @ 258 cited by the Respondents is applicable to the instant case.
Instructively, the Court below in the course of the vexed Ruling at page 15 @ 11-14 of the Record held:
“The Supreme Court in the case of EGBE VS. ADEFARASIN (1987) 1 NWLR (Pt.471) PG. 258, held that a cause of action is said to be statute barred if an action in respect of proceeding cannot be brought because the period laid down by the limitation law or Act had lapsed.”
Obviously, relying upon the EGBE VS. ADEFARASIN (supra), the Court below came to the following conclusive finding:
“The cause of action which is the defendants act in dispossessing the claimants of the land took place in 1998. From that time to the period this action was filed spans a total of fourteen years. It is thus my deduction and finding that this action as filed is caught by the provisions of section 1 and 2 of the Limitation Law of Bayelsa State and accordingly the action is statute barred.”
In view of the far-reaching postulation under the first issue hereinabove, it is crystally obvious that the finding of the Court below, copiously alluded to above, is grossly misconceived. Most regrettably, by so coming to the foregoing conclusive finding, the Court below has unwittingly resorted to whittling down the overriding provisions of Sections 44(1) and 46(1) of the 1999 Constitution as amended in favour of the inferior provisions of Sections 1 and 2 of the Limitation Law CAP. L8, laws of Bayelsa State, 2006.
For the avoidance of any lingering doubt, It ought to be reiterated that the fact that both the constitution and the Acts of the National Assembly have an overriding effect over any state law, is no longer controversial. The provision of Section 1(1) of the Constitution is unmistakably to the effect that:
“This Constitution is Supreme and its provisions shall have binding force on all authorities and persons through out the Federal Republic of Nigeria.”
Under Section 1 (3) of the said Constitution, it is equally provided:
“if any other law is inconsistent with the provisions of this constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void.”
In the circumstances, there is no doubt that the second issue ought to be and it is hereby resolved in favour of the Appellants.
ISSUE NO. 3
The third issue raises the question of whether the Court below was right to have found that Ruling solely on the argument submissions of the Respondents counsel.
Most regrettably, the third issue raises the question of bias in regard to the adjucatory process embarked upon by the Court below in the vexed ruling in question. Invariably, the very moment the issue of bias is raised what readily flashes up the mind is the very notorious immutable dictum of Lord Hewart, C.J. so eloquently pronounced in the locus classicus- REX VS. JUSTICES, EX PARTE MCCARTHY (1924) 1 KB 256:
“It is not merely of some importance that justice should not only be done But should manifestly and undoubtedly by seen to be done.”
Per Lord Hewart, C.J. @ 259.
In OLUE VS. ENENWALI 1 (1976) 2 S.C. 12; 1976 LPELR – 2612 (SC) the Supreme Court passionately applying Lord Hewart’s principle, aptly pontificated:
“In Reg. V. Barnsley Licensing Justices, Ex Parte Barnshley and District Licensed Virtuallers’ Association (1960 2 Q.B 167 at 187) Devlin J. appears to have limited that principle considerably but I would stand by it. It brings home this point: in considering whether there was a likelihood of bias, the Court does not look at the mind of the chairman of the tribunal, or whoever it may be, who sits in a judicial capacity. It does not look to see if there was a real likelihood that would or did, in fact favour one side at the expense of the other. The Court looks at the impression which would be given to the people. Even if he was as important could be, nevertheless, if right minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand;
See Reg. v. Hugeins (1985) 1 AB 563) and Rex v. Sunderland Justices (1901, 2 KB 357 at 373 CA) per Vangham Williams L.J.
Nevertheless, there must appear to be a real likelihood of bias. Surmise or conjecture is not enough. See Reg. v. Caniborne Justices, Exparte Pearce (1955 I QB. 41) and Reg. V. Nailsworth Licensing Justices, ExparteBird (1953, 2 All ER. 652 DC).
There must be circumstances from which a reasonable man would think it likely or probable that the justices or chairman as the case may be, would or did, favour one side unfairly at the expense of the other. The Court will not inquire whether he did, in fact favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice is rooted in confidence is destroyed when right minded people think: “The judge was biased”.
Per Mamman Nasir, JSC (as the learned erudite Jurist then was; later PCA) @ 11-12 paragraphs C-E.
Having critically, albeit dispassionately, considered the argument of the learned counsel as contained in the respective briefs thereof, I am unable to appreciate let alone uphold, the Appellants’ grouse that the Court below relied upon only the Respondents’ submission in the vexed decision thereof.
At page 96, lines 1-9 of the Record, the Court was recorded to have aptly made an analysis of the pleadings or the Appellants prior to its coming to the conclusive findings in lines 10-12 thus:
“In analyzing the above averments of the claimants as contained in their statement of claim the question that arises is that from the pleadings when could the cause of action be said to have arisen.”
Again, the Court was recorded to have taken in to consideration of the decision in WOHEREM VS. EMEREUWA (2004) All FWLR (Pt. 221) 1570, Sections 1 and 2 of the vexed Limitation Law of Bayelsa State, 2006, et al, before arriving at the conclusion that the Respondents preliminary objection was meritorious.
Undoubtedly, the decision was premised on a wrong misconception of law. However, it would be grossly uncharitable and unethical for the Appellants learned counsel to accuse the Court below of bias in the conduct of the adjudicatory process thereby resulting in the vexed ruling in question.
In the circumstances, the third issue ought to be and same is hereby resolved against the Appellants.
Hence having resolved both the first and second issues in favour of the Appellants, the appeal resultantly succeeds in part, and it is hereby so allowed by me.
Consequently, the Ruling delivered by the Bayelsa State High Court on February 26, 2016 in suit No. YHC/144/2012 by I.T. Cocodia, J; is hereby set aside.
CONSEQUENTIAL ORDER
By the originating process, the notice of appeal in question, the Appellants have urged upon this Court:
“An order setting aside the decision of the High Court of Bayelsa State delivered on the 26th of February, 2016, by Honourable Justice I.T. Cocodia, allowing the appeal and ordering for continuation of trial of the lower Court.”
The circumstances that would warrant the appellate Court to order for a retrial (or continuation of hearing/trial, as the case may be) must be very crucial and weighty. Fundamentally, the appellate Court must satisfy itself:
(a) That there has been an error in law or an irregularity in procedure of such a nature that the trial was not rendered a nullity, or the appellate is unable to say that there has been no miscarriage of justice.
(b) That leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the appellant;
(c) That there are no such special circumstances as would render it oppressive to put the appellant on trial a second time.
(d) That the offence for which the appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not for a retrial; and
(e) That to refuse an order for a retrial would occasion a miscarriage of justice that to grant it.
See ABODUNDE VS. THE STATE 4 FSC @ 70; IKHANE VS. COP (1977) All NLR 2341; (1977) 6 SC 78; (1977) LPELR-1478 (SC); FAGUNWA VS. ADIBI (2004) 17 NWLR (Pt. 903) 544; (2004) 19 NSCQR 415; (2004) LPELR-1229 (SC).
Most instructively, in the later case of FAGUNWA VS. ADIBI (supra), the Supreme Court aptly pontificated:
“It is trite, that where a plaintiff fails to prove his relief or reliefs, the action stands dismissed and it is dismissed. An order of retrial gives the Plaintiff a second chance to repair his case and return with his repaired case to right the defendants…”
Per Niki Tobi, JSC @ 25 paragraphs A-C.
In the instant case, the failure by the Court below to consider the issues and points arising from the case on the merits has rendered the vexed decision (Ruling) in question perverse, and liable to be set aside by this Court. Thus, warranting the Court to make a consequential order for continuation of hearing of the matter on the merits.
Hence, I have deemed it not only expedient but equally imperative, to order as follows:
1. That the vexed suit No. YHC/144/2012 shall be and same is hereby remitted to the Bayelsa State High Court (the Court below) for continuation of the trial on the merits.
2. There shall be no order in regard to costs.
TUNDE OYEBAMIJI AWOTOYE, J.C.A.: I entirely agree.
ABUBAKAR MUAZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the Judgment delivered by my learned brother I.M.M. Saulawa, JCA, I agree entirely with the reasoning and conclusion reached therein. I abide by all other consequential orders as contained in the lead Judgment including order as to cost.
Appearances:
Appellants absent but served. For Appellant(s)
AYE K. CLEMENT, ESQ. For Respondent(s)
