ALH. MUHAMMAADU ILIYASU BASHAR v. ALHAJI MUSTAPHA HARUNA JOKOLO & ORS
(2016)LCN/8467(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of April, 2016
CA/S/12/2015
RATIO
APPEAL: ESSENCE OF A RESPONDENT’S BRIEF
A Respondent’s brief is filed to react to specific issues for determination raised and argued in the appellant’s brief and to advance arguments in defence of the judgment appealed against See D. A. (NIG) AIEP LTD V OLUWADARE (2007) 7 NWLR (PT 1033) 402 at 355. Where the respondent has not filed a cross-appeal nor has filed respondent’s Notice of Contention under Order 9 of the Court of Appeal Rules, a Respondent’s brief is to support the judgment of the trial Court and not to attack it.
The Joint Respondents brief of 2nd – 14th Respondents is an attack on the judgment of the trial Court. In fact in its conclusion it states that
“Consequently I urge My Lords to dismiss the claim for being incompetent, allow the appellants appeal and set aside the judgment of the trial Court.”
This is unacceptable. See also ETA V DAZIE (2013) 9NWLR (PT 1359) 248, See also IMONIYAME HOLDINGS LTD & ANOR V SONEB ENTERPRISES LTD & ORS (2010) 4NWLR (PT 1185) 561 at 579 where Adekeye JSC. Said “The traditional role of a Respondent in an appeal is to do everything to support the judgment. He is not supposed to attack the judgment except he has filed a cross appeal” TUNDE OYEBANJI AWOTOYE, J.C.A.
LEGISLATION: EFFECT OF FAILURE TO FOLLOW THE PROVISIONS OF A STATUTE
The law is settled that where a statute provides for a way of doing a specific act, any other way than the specific manner provided by that statute will be a nullity and invalid. See Akintokun Vs LPDC (2014) 13 NWLR (Pt.1423), Ojukwu Vs Kaine & 4 Ors (2000) 15 NWLR (Pt.691) 516 at 523 Paragraphs F-G. PER PAUL ADAMU GALINJE, J.C.A.
PUBLIC BODY: DUTY OF A PUBLIC BODY INVESTED WITH STATUTORY POWER NOT TO ABUSE ITS POWER
In Westminster Vs. London & North Western Railway Coy (1905) A.C. 436 at 430, Lord Macnaghten had this to say:-
“A public body invested with statutory power must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act reasonably.” See Hart Vs Military Governor of Rivers State & Ors (1976) 2 FNLR 215. PER PAUL ADAMU GALINJE, J.C.A.
COUNSEL: DUTY OF COUNSEL FOR THE RESPONDENT
The traditional role of counsel for the Respondent in contradiction to that of counsel to the appeal is to support the judgment appeal against. Where however, counsel for the respondent cannot in good conscience, support the judgment appealed against, he should make his position known to his client with a view to either conceding the issues raised by the appellant or withdrawing from the appeal if his client persist in his pursuit of same. See ETA V. DAZIE (Supra). PER MUHAMMED LAWAL SHUAIBU, J.C.A.
JUSTICES
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
ALH. MUHAMMAADU ILIYASU BASHAR Appellant(s)
AND
ALHAJI MUSTAPHA HARUNA JOKOLO & ORS Respondent(s)
TUNDE OYEBANJI?AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal of the appellant vide his Notice of Appeal filed on 11/12/2014 against the decision of the High Court of Justice of Kebbi State decided on 11/12/2014 by Honorable Justice Abbas Ahmad in Suit No. KB/HC/14/2005.
By paragraph 12 of his further amended statement of claim, the plaintiff claimed against the Defendants jointly and severally as follows:
1. A declaration that the announcement made by the 1st defendant on Kebbi State Television Service on Friday, 3rd June 2012 and the letter by the secretary to Kebbi State Government, Alhaji Bala Musa Sakaba with Re. No. GHBK/S/10/VOL. 1 dated 3rd June 2005 purporting to depose the requisite inquiry and consultation, and without obtaining the advice of the Kebbi State Council of Chiefs and Gwandu Emirate Council respectively and therefore was illegal, null and void.
2. A declaration that the announcement made by the 1st defendant on Kebbi State Television Service on Friday, 3rd June 2012 and the letter by the secretary to Kebbi State Government, Alhaji Bala Musa Sakaba with Re. No.
GHBK/S/10/VOL. 1 dated 3rd June 2005 purported to depose the plaintiff as Emir of Gwandu were made in breach of the Chiefs (Appointment and Deposition) Law applicable in Kebbi State and was therefore ultra vires and void.
3. A declaration that the announcement made by the 1st defendant on Kebbi State Television Service on Friday, 3rd June 2012 and the letter by the secretary to Kebbi State Government, Alhaji Bala Musa Sakaba with Re. No. GHBK/S/10/VOL. 1 dated 3rd June 2005 purported to depose the plaintiff as Emir of Gwandu without first affording him the opportunity of being heard was a breach of his constitutional right to fair hearing and the rules natural justice and therefore was illegal and void.
4. An order setting aside the 1st defendant?s purported deposition of the plaintiff as the Emir of Gwandu as null and void.
5. An order setting aside the entire process leading to the appointment and installation of the 14th defendants as the Emir of Gwandu as null and void.
6. An order directing the 1st Defendant to forthwith re- instate the plaintiff as the Emir of Gwandu with all privileges and prerogative accustomed and
attached to the office of an Emir of Gwandu as contained in the Appointment of the Emir of Gwandu Order, 1995 by which the plaintiff was appointed Emir of Gwandu.
7. An order directing the 1st Defendant to forthwith pay to the plaintiff outstanding arrears of his salaries and other entitlements and benefits due to him from 3rd June 2005 to date.
8. And for such order as the Honorable Court may deem fit in the circumstances.”
The defendants filed consequential Amended Statement of Defence pursuant to the order of the Court on 10/1/2013.
Subsequently, the plaintiff filed Reply to Consequential Amended Statement of Defence on 21/1/2013.
Hearing later commenced. After hearing the parties, the learned trial Judge gave judgment inter ? alia thus
“Consequently, upon and in consideration of the pleaded facts and evidence adduced, after considering submission of learned counsel to the parties and all the authorities cited thereof in this Suit, I hereby resolved (sic) all issues raised in favour of the plaintiff Alh. Mustapha Haruna Jokolo, therefore and after due consideration of reasons adduced above, it is necessary to and I
hereby granted (sic) the claimant all reliefs and declarations he sought in his written statement of claim dated the 9th January 2013 in this Suit, thereby I make the following orders:-
1. An order setting aside the 1st Defendant purported deposition of the plaintiff as the Emir of Gwandu which is null and void.
2. An order setting aside the entire processes leading to the appointment and installation of the 14th Defendant as the Emir of Gwandu.
3. An order directing the 1st defendant to forthwith re- instate the plaintiff as the Emir of Gwandu with all the privileges and prerequisite accustomed attached to the office of an Emir of Gwandu as contained in the Appointment of the Emir of Gwandu order 1995 which the plaintiff was appointed Emir of Gwandu.
4. An order directing the 1st Defendant to forth with pay to the plaintiff outstanding arrears of his salaries and other entitlements and benefits due to him from 3rd June 2005 to date.
No order as to cost is awarded as parties should bear their costs”
Dissatisfied with the above decision, the appellant challenged the decision on 8 grounds.
The grounds of appeal (shorn of
the particulars) are:-
“Ground One
The judgment is against the weight of the evidence.
Ground Two
The Honorable learned trial Judge erred when he gave judgment in favour of the claimant.
Ground Three
The Honorable learned trial Judge erred in law when he shifted the burden of proof on to the defendant and this has led to a miscarriage of justice.
Ground Four
The learned trial Judge erred in law when he applied the definition “inquiry” in the definition of enquiry in Kebbi State Local Government Law as the same with inquiry required in the Kebbi State (appointment and deposition law) 1990 and this led to miscarriage of justice.
Ground Five
The learned trial Judge erred in law in holding that the claimant was not given fair hearing before his deposition.
Ground Six
The Honorable learned trial Judge erred in law holding that the enquiry and consultation was in proper.
Ground Seven
The learned trial Judge erred in law when he held that exhibits tendered by the defendants are not relevant and expunged them and basing his judgment thereon on the ground that such documents do not
exist without calling upon the defendants or their counsel to address him before doing so.
Ground Eight
The learned trial Judge erred in law when he based his judgment on the nonexistent and invalid amended statement of claim.”
Subsequently, the appellant on 19/6/2015 filed amended notice of appeal.
His new grounds of appeal are
“Ground One
The judgment is against the weight of the evidence.
Ground Two
The Honorable learned trial Judge erred when he gave judgment in favour of the claimant.
Ground Three
The Honorable learned trial Judge erred in law when he shifted the burden of proof on to the defendant and this has led to a miscarriage of justice.
Ground Four
The learned trial Judge erred in law when he applied the definition “inquiry” in the definition of enquiry in Kebbi State Local Government Law as the same with inquiry required in the Kebbi State (appointment and deposition law) 1990 and this led to miscarriage of justice.
Ground Five
The learned trial Judge erred in law in holding that the claimant was not given fair hearing before his deposition.
Ground Six<br< p=””
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The Honorable learned trial Judge erred in law holding that the enquiry and consultation was in proper.
Ground Seven
The learned trial Judge erred in law when he held that exhibits tendered by the defendants are not relevant and expunged them and basing his judgment thereon on the ground that such documents do not exist without calling upon the defendants or their counsel to address him before doing so.
Ground Eight
The learned trial Judge erred in law when he based his judgment on the nonexistent and invalid amended statement of claim.”
The record of appeal in this appeal was transmitted to this Court on 8/5/2015 but deemed transmitted on 9/6/2015.
Parties later filed and exchanged briefs of arguments.
The appellant’s brief of arguments, settled by Yunus Ustaz Usman SAN was filed on 28/7/2015.
Learned Senior Advocate formulated 5 issues for determination. The issues are:-
1. Whether the trial Court can assume jurisdiction on an amended invalid statement of claim. (Distilled from ground 8 of the notice of appeal).
2. Whether in a declaratory claim, the burden of proof shift when no claim is
proof before the Court. (Distilled from ground 2 and 3 of the notice of appeal)
3. Whether the duty of the Court is expand the law. (Distilled from ground 6 of the notice of appeal)
4. Whether fair hearing is one way traffic. (Distilled from issue 5 of the notice of appeal)
5. Whether a Court can expunge a document which is relevant and admissible in one hand and admit the same document as relevant in another hand. (Distilled from ground 7 of the notice of appeal.)
On issue one, learned Senior Counsel submitted that the judgment of the trial Court was based on the claim in a statement of claim dated 2nd October 2013 which was an incompetent statement of claim, He relied on INEC V LUBIR (2010) 51 WRN 107 at 111. He urged the Court to hold that the judgment of the trial Court could not stand on nothing.
On issues two and four
The learned Senior Counsel submitted that in a civil case for declaratory relief the strength of the party?s case depended on the balance of probability and preponderance of evidence. He relied on OLAWEPO V SARAKI (2009) 45 WRN 95. He posited further that the plaintiff might rely on the weakness of the
defendant?s case when that will strengthen his case.
Learned counsel referred to the three declaratory prayers and the 5 ancillary prayers depending on them. He cited EMENIKE V PDP (2012) 50 NSCQR 94.
Learned counsel referred to the plaintiff?s claim as per the further amended statement of claim and submitted that the 4th and 5th Respondents were the body charged with the responsibility of advising the 1st defendant and not for selection of the Emir of Gwandu. Learned counsel submitted that the 2nd Respondent was not under the duty to make “inquiry and consultation with the 4th and 5th Respondent but with 6th to 14th Respondents by virtue of Section 3 to 6 of the Chiefs Law”.
Learned counsel further submitted that the 1st Respondent did not utilize the opportunity given to him to be heard in reaction to the queries. He posited that in such situation the 1st respondent could not be allowed to challenge his dethronement on the ground of want of fair hearing. He relied on O. S. I. E. C. V A. C. (2010) 19 NWLR (PT 1226) 273 at 339; S & D CONSTRUCTION COMPANY LIMITED V CHIEF BAYO AYOKU & ANOR (2011) 13 NWLR (PT 1265) 487.<br< p=”” style=”font-size: 14px; line-height: 2;”
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Learned appellants senior counsel further submitted that even if the 1st Respondent was denied his right to be heard judgment could not be given in his favour. He cited OLATUNBOSUN V NISER (1988) 19 NSCC 1025 at 1029.
He contended further that from exhibits tendered particularly by 2nd ? 14th Respondents it would be wrong to impose the 1st Respondents on an unwilling master. He relied INSTITUTE OF HEALTH AHMADU BELLO UNIVERSITY HOSPITAL MANAGEMENT BOARD V MRS.
JUMMAI R. ANYIP (2011) 12 NWLR (PT 1260) 1 at 18 and other cases.
Issue Three: learned appellant?s counsel submitted that by the virtue of Section 6 and 7 of the Chiefs (appointments and deposition) Laws of Kebbi State 1996 there was no specific procedure for the making of an inquiry. He therefore argued that the learned trial Judge erred in law & when he assumed that the invitation consultation and the removal of the 1st Respondent was not in accordance with Sections 6 and 7 of the said law.
Issue five
Learned counsel submitted that the trial Court erred in law when it admitted a legally admissible document in one hand and expunged it with the other hand
and later turned around to admit the same to make case for the opposing party.
He finally urged the Court to allow the appeal, set aside the judgment of the trial Court and dismiss the plaintiff?s claim.
The 1st Respondent?s brief was settled by Ahmadu Zumaru and filed on 19/8/2015.
Learned counsel for the 1st Respondent formulated two issues for determination as follows:-
1. Whether or not having regard to the State of pleadings and the evidence on record, the 2nd Respondent, the Governor of Kebbi State complied with the provision of Section 6 and 7 of the Chiefs (appointment and Deposition) Law Cap 21 Laws of the Kebbi State and Section 36 (1) of the Constitution of the Federal Republic of Nigeria before deposing the 1st Respondent as the 19th Emir of Gwandu?
2. Whether or not the appointment of the appellant as 20th Emir of Gwandu was in consonance with Section 3 of the Chiefs (Appointment and Deposition) Law Cap 21 Laws of Kebbi State?
On issue no 1, learned 1st Respondent?s counsel referred extensively to the provisions of Section 6 and 7 of the Chiefs (Appointment and Deposition) Law Cap 20.
?
He
submitted that a key ingredient of proper inquiry was that it must comply with the principles of natural justice He relied heavily on the Supreme Court case of CHIEF JOSEPH ODETOYE OYEYEMI V COMMISIONER FOR LOCAL GOVERNMENT KWARA STATE & 3 ORS (1992) 2 NWLR (Part 226) PAGE 682.
He posited that evidence before the lower Court was that the 1st Respondent was absent at the meeting held on Friday 3rd June, 2015 where his deposition as discussed.
He contended that the intendment of the lawmaker in Sections 6 and 7 of Kebbi State Chiefs (Appointment and Deposition) Law was to ensure that the procedure for the deposition of an Emir was not subject to whim and caprice of the Governor. He further referred to Appeal No CA/A/35/2010 AG & COMMISSIONER OF JUSTICE KEBBI STATE V HRB (ALHAJI) AL ? MUSTAPHA JOKOLO & 2 OTHERS, He urged the Court to uphold the decision of the lower Court.
ISSUE NO 2
Learned counsel referred to the three circumstances when the kingmakers might exercise powers to appoint a new Emir i.e.
a. Upon the death of the incumbent Chief or Emir.
b. Upon the resignation of the incumbent Chief or Emir or
c. Upon deposition of an incumbent Chief or emir.
He submitted that the answer to appellant’s Issue No 2 flowed consequentially from the appellants issue No 1.
He urged the Court to hold that if the deposition of the 1st respondent was void then there was no vacancy. Therefore the purported appointment of the appellant as Emir of Gwandu was in breach of Section 3 of Kebbi State Chiefs (Appointment and Deposition) Law.
The joint brief of argument of the 2nd-14th Respondents was prepared by Bagudu U. Abubakar Chief State Counsel Ministry of Justice Kebbi State. This is supposed to be a Respondent’s brief. A Respondent’s brief is filed to react to specific issues for determination raised and argued in the appellant’s brief and to advance arguments in defence of the judgment appealed against See D. A. (NIG) AIEP LTD V OLUWADARE (2007) 7 NWLR (PT 1033) 402 at 355. Where the respondent has not filed a cross-appeal nor has filed respondent’s Notice of Contention under Order 9 of the Court of Appeal Rules, a Respondent’s brief is to support the judgment of the trial Court and not to attack it.
The Joint Respondent?s brief of 2nd ? 14th Respondents is an attack on the judgment of the trial Court. In fact in its conclusion it states that
“Consequently I urge My Lords to dismiss the claim for being incompetent, allow the appellant?s appeal and set aside the judgment of the trial Court.”
This is unacceptable. See also ETA V DAZIE (2013) 9NWLR (PT 1359) 248, See also IMONIYAME HOLDINGS LTD & ANOR V SONEB ENTERPRISES LTD & ORS (2010) 4NWLR (PT 1185) 561 at 579 where Adekeye JSC. Said “The traditional role of a Respondent in an appeal is to do everything to support the judgment. He is not supposed to attack the judgment except he has filed a cross ? appeal” I shall therefore discountenance the joint brief of argument of the 2nd ? 14th Respondents.
I have carefully considered the arguments canvassed by learned counsel on both sides as well as the contents of the record of appeal.
?
I find issue No 1 formulated by learned counsel for the 1st Respondent, concise apt and adequate enough for the determination of this appeal. I therefore adopt it as the sole issue for the determination of this appeal.
I shall reproduce the issue for ease of reference, as follows
ISSUE 1
Whether having regard to the state of pleadings and the evidence on record, the 2nd Respondent, the Governor of Kebbi State complied with the provisions of Section 6 of the Chiefs (Appointment and Deposition) Law Cap 21 Laws of Kebbi State and Section 36 (1) of the Constitution of the Federal Republic of Nigeria before deposing the 1st Respondent as the 19th Emir of Gwandu.
I am not unmindful of the appellant’s issue no 1 which seeks to challenge the amended notice statement of claim relied upon in the judgment now on appeal. The 1st Respondent in his brief of argument replied that the issue was considered and decided upon by this Court in Suit No CA/S/67M/2011, Attorney General of Kebbi State & ors v Alhaji Al-Mustapha Jokolo where this Court held that the proposed, amended statement of claim was competent. The 1st Respondent further stated that there was a pending appeal on this at the Supreme Court. In other words, the decision of this Court on the proposed amended statement of claim has not been set aside.
The appellant did not file a Reply
brief to contest the 1st Respondent assertion. In line with Order 19 Rule 10 (1) of the Court of Appeal Rules I hold that the appellant has conceded the above assertion.
Now a judgment or a decision of a Court remains valid until set aside by due process of law. See A ? G ANAMBRA STATE V AG. FRN & ORS (2005) 9NWLR (PT 931) 572; EKANEM EKPO OUT V ACB INTERNATIONAL PLC. & ANOR (2008) 3NWLR (PT 1073) 179 at 199.
Having regard to the fact that the decision of the Court of appeal on the proposed amended statement of claim has not been set aside, it remains binding and valid. Therefore issue No 1 of the appellant is resolved in favour of the 1st Respondent.
Now back to the sole issue adopted by me for the determination of this appeal.
It is pertinent at this stage to capture the facts of this case. The facts are not complex. The 1st Respondent was the claimant at the trial Court. He was deposed by the 1st defendant as the 19th Emir of Gwandu on 3/6/2005.
On the same 3/6/2005, the 14th defendant was installed as the 20th Emir of Gwandu by the 1st Defendant.
?
The claimant (now the 1st respondent) is in Court to
challenge his deposition and the installation of the 14th defendant as Emir of Gwandu.
The contention of the claimant at the trial Court was that his deposition was not in compliance with the provision of Section 3, 6, and 7 of the Chiefs (Appointment and Deposition) Law Cap 21 Laws of Kebbi State 1996.
Section 6 of the Chiefs (Appointment and Deposition) Law Cap 21, laws of Kebbi State 1996 reads thus
“The Governor, after due inquiry and consultation with the persons concerned in the selection may depose any chief or any head Chief whether appointed before or after the commencement of this law, if after inquiry he is satisfied that such deposition is required according to customary law or is a necessary in the interests of peace or order or good government.”
Section 7 of the same law reads
“The powers of the governor under the preceding section of this law shall only be exercised after receiving the advice of the Counsel of Chiefs.”
?
The lower Court held that the deposition of the claimant and consequently the installation of the 14th defendant were not in compliance with the provisions of the above law. This is why the
parties are in this Court on appeal.
Were the provision of Section 6 and 7 of the Chiefs (Appointment and Deposition) Law Cap 21 complied with before the 1st Respondent was removed?
The provision of the Chiefs (Appointment and Deposition) Law Cap 21 Kebbi State are in pari materia with the provisions of the Chiefs (Appointment and Deposition) Law Kwara State. Section 6 of the said law was subjected to judicial interpretation by the Supreme Court in CHIEF JOSEPH ODETOYE OYEYEMI V COMMISSIONER FOR LOCAL GOVERNMENT KWARA STATE & 3 OTHERS (1992) 2NWLR (part 226) 661 where it was held
1. That the inquiry under Section 6 of the law must be formal.
2. That for any deposition or withdrawal to be valid it must be established by preponderance of evidence documentary or oral.
3. That the enquiry must afford the chief the opportunity to be heard.
4. That the chief sought to be removed must be invited to the meeting or present or represented at the inquiry.
Nnaemeka ? Agu JSC. in the leading judgment said:-
“It is not necessary to insist that a standard or a form of hearing in a Court must be applied in an
administrative inquiry even if it acts judicially in the sense that it determines the rights of the parties. It is however necessary in such a case that there be an identifiable person or a body of persons empowered and capable of going into the issues in disputation that the person who is to be adversely affected by such an administrative decision, act or proceedings be given adequate of what is proposed and any allegations against him so that he will be afforded the opportunity to know the case against him, to make representations by himself or through someone else on his behalf, to appear at the hearing or inquiry if he likes and to effectively prepare his defence and the case against him.”
Applying the above principles of law as laid down in OYEYEMI?S case to the instant appeal the following are clear
1. The claimant was never invited to any formal inquiry neither was he represented at any such inquiry. This was the finding of fact of the learned trial Judge on page 593 of the record and the finding of facts has not been challenged in this appeal.
2. No formal inquiry as required by the law was conducted before the deposition of the
claimant.
3. The claimant was not afforded any opportunity to defend himself at the formal inquiry
4. The provisions of Section 6 of the Chiefs (Appointment and Deposition) law Kebbi State were not complied with before the claimant was deposed.
The 1st Respondent’s counsel had hammered on documentary correspondences to the claimant which the claimant did not reply. Learned Senior Counsel cited CHAMI V U.B.A. (2010) 41 NSCQR 656 at 676; OLAGUNYI V OYENIRAN & ORS (1995 – 1996) ALL NLR at 496 and submitted that the claimant did not utilize the opportunity offered him to be heard.
With due respect, the facts of this case are different from the facts of those cases. It is a mandatory requirement or provision of the law governing the deposition of a Chief that was not complied with in this case.
I must state that the arguments of the learned senior counsel ought to have been presented and canvassed before the panel of inquiry. The state government that has made a law ought to be able to comply with its own law. This is not the case in this appeal.
According to Oguntade JSC. In OSISANYA V AFRIBANK NIGERIA PLC.
(2007) 6 NWLR (PT 1031) 565 “When an office or employment has a statutory flavor in the sense that its conditions of service are provided for and protected by statute or regulations there under any person holding that office or in that employment enjoys a special status over and above the ordinary master and servant relationship. In the matter of disciplining of such a person the procedure laid down by the applicable statute or regulations must be fully complied with. If materially contravened any decision affecting the right or tenure of office of that person may be declared null and void in an appropriate proceedings”
That was what was done in CHIEF JOSEPH OYEYEMI V. COMMISSIONER FOR LOCAL GOVERNMENT KWARA STATE & 3 ORS (supra). The trial Court was therefore right to have nullified the deposition of the claimant. I resolve the sole issue in favour of the 1st Respondent.
This appeal, lacks merit, it is accordingly dismissed. The judgment of the lower Court is hereby affirmed. Parties are to bear their respective costs.
?PAUL ADAMU GALINJE, J.C.A.: I have had the privilege of reading in draft the judgment just delivered
by my learned brother, Awotoye JCA and I entirely agree with the reasoning contained therein and the conclusion arrived thereat.
The first issue for determination of this appeal as formulated by learned senior counsel for the Appellant is predicated on an issue which has since been laid to rest by this Court in unreported appeal No: CA/s/67s/2011, Attorney General of Kebbi State & Ors Vs Alhaji Al-Mustapha Jokolo where my learned brother Amiru Sanusi (OFR) JCA (as he then was) in his judgment, delivered don the 12th of July 2012, held:-
“This is more because in this instant case, I stressed that the said proposed amended statement of claim now being challenged had in fact been duly signed by a named legal practitioner belonging to a registered law firm or chambers and is also a competent process…In view of my discourse supra, I hold the firm view that the proposed amended statement of claim is not only competent but I also in strict compliance with the legally acceptable procedure.”
By this judgment, a challenge to the competence of the initiating processes at the lower Court including the proposed amended statement of claim at Pages 291
? 296 of the printed record of this appeal had been resolved. This Court has thus become functus officio and can therefore not inquire into the competence of these processes.
The appeal before this Court concerns the removal of a chief whose appointment and deposition are regulated by the Chiefs (Appointment and Deposition) Law Cap. 21 Laws of Kebbi State 1996. Section 6 of this law provides as follows:-
“The Governor, after due inquiry and consultation with the persons concerned in the selection, any depose any chief or any head chief whether appointed before or after the commencement of this law if after inquiry he is satisfied that such deposition is required according to customary law or is necessary in the interest of peace or order or good government.”
Clearly the section of the law referred to hereinabove provides for inquiry by the Governor before consultation with the kingmakers where grounds exist for deposition of a chief. The nature of the inquiry contemplated under Section 6 of the Kebbi State Law which is similar to Section 6 of the Chiefs (Appointed and Deposition) Law of Kwara State was subject of the decision of the Supreme
Court in Oyeyemi VS. Commissioner for Local Government, Kwara State & 3 Ors (1992) 2 NWLR (Pt.226) 661, where Nnaemeka Agu stated thus:-
“It is, however, in such a case that there be an identifiable person on or body of persons empowered and capable of going into the issue in disputation, that the person who is to be adversely affected by such an administrative decision, act or proceedings be given adequate notice of what is proposed and any allegations against him so that he will be afforded the opportunity to know the case against him, to make representation by himself or through someone else on his behalf to appear at the hearing or inquiry if he likes and to effectively prepare his defence and answer the case against him.”
Akpata JSC in his contribution to the judgment in the same case had this to say:-
“In this case the Appellant should not be punished by being removed from his position as a traditional ruler or chief without being given a fair hearing. Any decision based on the findings of an inquiry without the person affected by the decision being given a hearing will be invalid.
The withdrawal of recognition of the Appellant as
the Bale of Oro town is invalid, null and void.”
The evidence before the lower Court shows clearly that the 1st Respondent herein was appointed and installed as the 19th Emir of Gwandu sometimes in 1995 and he remained as the emir until on the 3rd of June 2005 when he was purportedly deposed and banished from his chiefdom without an inquiry into the allegations against him. In their testimonies, DW1, DW2 and DW3 admitted that when the governor of Kebbi State met with the kingmakers to discuss about the deposition of the 1st Respondent, the 1st Respondent was not present at the meeting. Even though DW1 and DW2 testified that they along with other kingmakers advised against the deposition of the 1st Respondent, that evidence is irrelevant as the governor was not bound to act in accordance with the advice of the kingmakers. However the procedure under Section 6 of the Chiefs (Appointment and Deposition) Law cannot be jettisoned as it is predicated on the principle of fair hearing as provided for under Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which provides as follows:-
“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 fair hearing within a reasonable time by a Court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.”
The law is settled that where a statute provides for a way of doing a specific act, any other way than the specific manner provided by that statute will be a nullity and invalid. See Akintokun Vs LPDC (2014) 13 NWLR (Pt.1423), Ojukwu Vs Kaine & 4 Ors (2000) 15 NWLR (Pt.691) 516 at 523 Paragraphs F-G.
In Westminster Vs. London & North Western Railway Coy (1905) A.C. 436 at 430, Lord Macnaghten had this to say:-
“A public body invested with statutory power must take care not to exceed or abuse its powers. It must keep within the limits of the authority committed to it. It must act reasonably.” See Hart Vs Military Governor of Rivers State & Ors (1976) 2 FNLR 215.
In the instant case, the Governor of Kebbi State who was bound to act in accordance with the law as he swore to do, failed to do so, as such his act of deposing the 1st
Respondent from his position as the Emir of Gwandu without complying with the provisions of Section 6 of the Chiefs (Appointment and Deposition) Law of Kebbi State is invalid, null and void. The fact that the 1st Respondent had been appointed and ostensibly recognised as the Emir of Gwandu and earned salaries for a period of about ten years gave him sufficient interest for which he was entitle to be heard before his appointment could be withdrawn. The two queries that were purported to have been issued to the 1st Respondent by the 2nd Respondent do not satisfy the requirement of Section 6 of the Chiefs (Appointment and Deposition) Law Kebbi State and are therefore not capable of sustaining the action of the 2nd Respondent.
For these few words and the more detailed reasons in the judgment of my learned brother, this appeal shall be ant it is hereby dismissed.
I abide by the consequential orders made in the lead judgment including order as to cost.
MUHAMMED LAWAL SHUAIBU, J.C.A.: I had the opportunity of reading the draft of the judgment just delivered by my learned brother, Tudne O. Awotoye, JCA.
The facts of the
case now before us on appeal are seemingly the same with the facts in the case of OYEYEMI V. COMMISSIONER FOR LOCAL GOEVRNMENT KWARA STATE & ORS (1992) 2 NWLR (Pt.226) 661.
The central issue before the Supreme Court was:
Whether the inquiry enjoined by Section 6 of the chiefs (Appointment and Deposition) Law to be held before the Governor could depose any chief is a formal inquiry not an informal one as was in the instant case. Per UWAIS JSC at page 686 ? 687, paras G ? A said:
“It is to be observed that the meetings held by the governor with the traditional rulers and important dignitaries of Oro Community were informal while the holding of inquiry under Section 6 of the Chiefs (Appointment and Deposition) Law being official; ought to be formal. Furthermore, the letters mentioned in Exhibit J are not stated nor were those letters exhibited before the trial High Court. Though the letters were said to have been endorsed to the parties concerned; those parties have not been specifically mentioned so that one is not sure if the appellant was one of them. I am at loss to understand the conclusion reached by the Court of Appeal that
exhibit J, amounted to a hearing in satisfying the inquiry enjoined by Section 6.”
In the case now on appeal, the learned senior counsel for the appellant has forcefully argued that the 2nd respondent, the Governor of Kebbi State has no legal duty to make inquiry and consultation with Gwandu Emirate Council and Kebbi State Council of Chiefs before deposing the 1st respondent.
The provisions of Section 6 and 7 of the Chief (Appointment and Deposition) Law Cap 21 laws of Kebbi State 1996 which is in pari material with the Chiefs (Appointment and Deposition) Law of Northern Nigeria, applicable to Kwara State had clearly and unequivocally subjected the powers of the Governor to appoint or depose any chief upon due inquiry and consultation with person concerned in the said election or deposition of any chief or head chief.
Section 7 of the said chiefs (Appointment and Deposition) Law of Kebbi State emphatically states:
7. The powers of the Governor under the preceding Sections of this law shall only be exercised after receiving the advice of the Council of Chiefs.
?
In the instant case and from the totality of the evidence before the lower
Court, there was neither formal inquiry nor advice from the council of Chiefs prior to the deposition of the 1st respondent. Therefore, there has been a non-compliance with the law.
Also in OYEYEMI V. COMMISSIONER LOCAL GOVENRMENT KWARA STATE (Supra) per NNAMEKA ? AGU, JSC, at page 687, paras E ? F said:
“The law does not intend that on mere representations to the Governor by some persons in the community, no matter how highly placed they might be, he should intervene and, without inquiry, withdraw the recognition of a chief no matter how clear the case against him might appear to be. The Executive Governor of Kwara State was bound to act according to law; any act to which is contrary to law; Statutory or otherwise, could be declared invalid.”
In the instant case, the action of the Governor of Kebbi State in deposing the 1st respondent as the 19th Emir of Gwandu without a hearing was in breach of the principle of audi alteram partem. It was also in clear breach of the express provisions of Section 36 of 1999 Constitution and the relevant Chiefs (Appointment and Deposition) Law.
?
It is also pertinent to comment albeit briefly, on
the purported brief of the 2nd ? 14th Respondents. The traditional role of counsel for the Respondent in contradiction to that of counsel to the appeal is to support the judgment appeal against. Where however, counsel for the respondent cannot in good conscience, support the judgment appealed against, he should make his position known to his client with a view to either conceding the issues raised by the appellant or withdrawing from the appeal if his client persist in his pursuit of same. See ETA V. DAZIE (Supra).
And except with the leave of Court, a respondent shall not be entitled on the hearing of the appeal to contend that the decision of the Court below should be varied upon grounds not specified in a notice given under Order 9 of the Court of Appeal Rules, 2011.
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For the fuller reasons given by my learned brother, Tunde O. Awotoye, JCA, in the leading judgment, I too dismiss the appeal.
Appearances
Yunusa Ustaz Usman, SAN with him, Illo K. Sanusi, SAN and Hussaini Zakariyya, Esq.For Appellant
AND
Ahmadu Zumaru, Esq. with him, Sani Marshall, Esq. (Holding a brief of Sylvester Imhanobe, Esq.) for 1st Respondent.
A.U. Bagudu (D.R.P.S.S.) with him, H. M. Tukur (P.S.C.) MOJ Kebbi State for 2nd to 14th Respondents.For Respondent
