TARABA STATE GOVERNMENT & ANOR v. HON. JUSTIN SHAKU & ORS
(2019)LCN/13244(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of May, 2019
CA/MK/113/2011
JUSTICES
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
1. TARABA STATE GOVERNMENT
2. TAKUM LOCAL GOVERNMENT Appellant(s)
AND
1. HON. JUSTIN SHAKU
2. HON. AHAA ISHOM
3. MR. FRANCIS AZA SWENDE
(Suing for themselves and on behalf of Shiakpev Community)
4. BENUE STATE GOVERNMENT
5. NATIONAL BOUNDARY COMMISSION
6. INDEPENDENT NATIONAL ELECTORAL COMMISSION
7. THE NIGERIA ARMY Respondent(s)
RATIO
THE MEANING OF DETERMINATION
To ?determine? or ?determination? has legal connotation. The word ?determination? has been defined by the Supreme Court in Deduwa & Ors. vs. Okorodudu & Ors. (1976) 1 NMLR 236 per Alexander C.J.N. at pages 243-244 in the following manner: –
?More light is thrown on the meaning of the words ?decision? and determination? in the case of the Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, CJN in giving the ruling of the Court said at page 432: ?We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means a bringing or coming to an end or (the mental action of coming to a decision, or the resolving of a question).
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word determine as meaning make an end of the matter. In our own experience in this (Supreme Court), we send a matter back to the High Court for a rehearing and determination; the word determination? therein meaning ending of the matter.”
The learned authors of Blacs Law Dictionary, 9th edition, page 514 defines determination as follows: –
?1. A final decision by a Court or administrative agency (the Court?s determination of the issue). (Cases: Administrative Law and Procedure, 489, Federal Civil Procedure, 928).
Initial determination: The first determination made by the Social Security Administration of a person?s eligibility for benefits. (Cases: Social Security and Public Welfare?…
2. The ending or expiration of an estate or interest in property, or of a right, power, or authority (the easement?s determination after four years) ? determine, vb.?
In Osborn?s Concise Law Dictionary, 12th edition, page 144 also defines ?determine? as ?(1) To come to an end; (2) to decide an issue or appeal.? In Words and Phrases Legally Defined Vol. 2 (D-H) by John B. Saunders ?determination? and to ?determine? and their legal connotation are defined and supported by judicial reasoning from jurists of renown from Commonwealth countries which ought to guide learned Judges and Justices in Nigeria in the administration of law and justice in this century at pages 63-64 as follows:-
?A determinable interest comes to an end automatically upon the occurrence of the terminating event, as for example upon the remarriage of a woman to whom an estate has been granted during her widowhood. This is inevitable, for according to the limitation itself, i.e. according to the words fixing the space of time for which the widow?s right of enjoyment is to continue, her interest ceases with her remarriage and nothing remains to be done to defeat her right. There can, indeed, be no question of defeating what has already come to an end. (Cheshire?s Modern Real Property (10th Edition) 281).
?It is said that ?termination? and ?determination? do not mean the same thing; that ?termination? means the thing coming to its natural end; ?determination? means coming to what I may call a violent end, that is, an end which was not contemplated as the longest duration, such as coming to an end by an unexpected death. I do not think that this is either the popular or the legal distinction between the two terms. Supposing a term were created of fifty years, determinable at the death of ?A?, would it be legally inappropriate to say, that such term is determinable either by effluxion of time or by the death of ?A And as to the grammatical or popular use of the term it is rather remarkable that, in Todd?s edition of Johnson?s Dictionary, the fourth sense given of the word ?determination? is ?expiration,? ? ?end?. And the lexicographer adds, Used only by lawyers; as, from and after the determination of the said lease.? The word ?determination? may properly, and according to legal as well as to ordinary use, signify the coming to an end in any way whatever. That appears to me to be the honest mode of construing the word.? St. Aubyn vs. St. Aubyn (1861), 1 Drew & Sm. 611, per Kindersley, V.-C., at pp. 618, 619. PER TUR, J.C.A.
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): I have headed the determination of the issues in controversy in the appeal between the appellants and the respondents as a decision. I could have headed same as an opinion by virtue of the provisions of Section 294(2) and (3) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered for any decision is a determination regarding each Justice that heard argument in the Court of Appeal. The provisions are couched as follows:-
294(2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:
Provided that it shall not be necessary for all the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
(3) A decision of a Court consisting of more than one
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Judge shall be determined by the opinion of the majority of its members. xxxxxxx
318(1) In this Constitution unless it is otherwise expressly provided or the con otherwise requires: –
?Decision? means, in the relation to a Court, any determination of that Court and includes judgment; decree, order, conviction, sentence or recommendation.”
Section 294(3) of the Constitution is authority that I can render my opinion, decision or determination independent of the other Justices or adopt their opinions or decision. To ?determine? or ?determination? has legal connotation. The word ?determination? has been defined by the Supreme Court in Deduwa & Ors. vs. Okorodudu & Ors. (1976) 1 NMLR 236 per Alexander C.J.N. at pages 243-244 in the following manner: –
?More light is thrown on the meaning of the words ?decision? and determination? in the case of the Automatic Telephone and Electric Co. Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, CJN in giving the ruling of the Court said at page 432: ?We
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have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means a bringing or coming to an end or (the mental action of coming to a decision, or the resolving of a question).
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word determine as meaning make an end of the matter. In our own experience in this (Supreme Court), we send a matter back to the High Court for a rehearing and determination; the word determination? therein meaning ending of the matter.”
The learned authors of Blacs Law Dictionary, 9th edition, page 514 defines determination as follows: –
?1. A final decision by a Court or administrative agency (the Court?s determination of the issue). (Cases: Administrative Law and Procedure, 489, Federal Civil Procedure, 928).
Initial determination: The first determination made by the Social Security Administration of a person?s eligibility for benefits. (Cases: Social Security and Public Welfare?…
2. The ending or expiration
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of an estate or interest in property, or of a right, power, or authority (the easement?s determination after four years) ? determine, vb.?
In Osborn?s Concise Law Dictionary, 12th edition, page 144 also defines ?determine? as ?(1) To come to an end; (2) to decide an issue or appeal.? In Words and Phrases Legally Defined Vol. 2 (D-H) by John B. Saunders ?determination? and to ?determine? and their legal connotation are defined and supported by judicial reasoning from jurists of renown from Commonwealth countries which ought to guide learned Judges and Justices in Nigeria in the administration of law and justice in this century at pages 63-64 as follows:-
?A determinable interest comes to an end automatically upon the occurrence of the terminating event, as for example upon the remarriage of a woman to whom an estate has been granted during her widowhood. This is inevitable, for according to the limitation itself, i.e. according to the words fixing the space of time for which the widow?s right of enjoyment is to continue, her interest ceases with her remarriage and
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nothing remains to be done to defeat her right. There can, indeed, be no question of defeating what has already come to an end. (Cheshire?s Modern Real Property (10th Edition) 281).
?It is said that ?termination? and ?determination? do not mean the same thing; that ?termination? means the thing coming to its natural end; ?determination? means coming to what I may call a violent end, that is, an end which was not contemplated as the longest duration, such as coming to an end by an unexpected death. I do not think that this is either the popular or the legal distinction between the two terms. Supposing a term were created of fifty years, determinable at the death of ?A?, would it be legally inappropriate to say, that such term is determinable either by effluxion of time or by the death of ?A And as to the grammatical or popular use of the term it is rather remarkable that, in Todd?s edition of Johnson?s Dictionary, the fourth sense given of the word ?determination? is ?expiration,? ? ?end?. And the lexicographer adds,
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?Used only by lawyers; as, from and after the determination of the said lease.? The word ?determination? may properly, and according to legal as well as to ordinary use, signify the coming to an end in any way whatever. That appears to me to be the honest mode of construing the word.? St. Aubyn vs. St. Aubyn (1861), 1 Drew & Sm. 611, per Kindersley, V.-C., at pp. 618, 619.
?The words of the condition (in a bond) are, ?if the determination of the said action shall be in favour of the plaintiff,? etc. We are of opinion that, as there was at the commencement of this action a judgment in favour of the plaintiff, and there was no stay of execution on the judgment, such a state of things amounts to ?a determination? of the action in favour of the plaintiff within the meaning of the condition.
Where, as in this case, the plaintiff has obtained a judgment in his favour, and is in a condition to enforce it by execution, the action, as far as he is concerned, may be properly said to be determined in his favour.? Burnaby vs. Earle (1874) L.R. 9 Q.B. 490, per Lush, J., at
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p.493.
?There is a ?con in Chapter 3 of the Income Tax Act, 1952, which relates to ?Appeals and Relief for Mistake? and comprises Section 50 to Section 66. Thus, in Section 50(2) there is the phrase ?An appeal, once determined by the commissioners, shall be final, and neither the determination of the commissioners nor the assessment made thereon shall be altered, except It is plain that there the words ?determined? and ?determination? are equivalent to: decided and decision, and are quite incapable of being understood to mean an assessment or the amount stated in an assessment.? Muir vs. Inland Revenue Commissioners, (1966) 3 All E.R. 38, C.A. per Winn, L.J. at p.48.
NEW ZEALAND ? ?Article 19 (of a partnership agreement)? says: ?Upon the determination of the partnership the assets of the firm shall be realized The word ?determination appears to me to be used for ?termination?, and usage shows that they are now used interchangeably.? Rushbrook vs. Bridgeman (1910), 29 N.Z.L.R. 1184, per Stout,
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C.J., at p.1189; also reported 13 G.L.R. 178, at p.180.
DETERMINE:
?I doubt whether it is correct to say that, where, under a settlement, a person, who has a right to appoint an annual sum to one of a number of persons as he may think fit, and duly makes such an appointment, he thereby ?determines? any provision of the settlement. Be that as it may, it is, I think, clear that in the section under consideration (Section 38(1)(a) of the Finance Act, 1938 (repealed; see now Section 38(1)(a) of the Income Tax Act, 1952, as amended by Section 21 of the Finance Act, 1958) the word is used in relation to the determination of a provision in a settlement ?by virtue or in consequence? whereof a sum of money is payable by the ?settlor or the wife or husband of the settlor?: and that the power to determine any other provision of a settlement does not bring it within the provisions of Section 38(1)(a) at all. Assuming, however, that the respondent has power to appoint to himself as an employee of a company of which he is or has been a director, and assuming that by making that appointment he would determine all the
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provisions of the settlement in favour of the other possible beneficiaries, the result is that any sum payable by the respondent by virtue of, or in consequence of, the provisions of settlement so determined would be treated as his income. It seems, I think, clear that the words ?otherwise determine? mean the determination of a provision in the settlement whereby a sum of money becomes payable by the settlor, and nothing else.? Inland Revenue Commissioners vs. Dan Fitte (1942) 2 All E.R. 500, per Maccnaghten, J., at p.503.
?It was argued with ingenuity that an interest cannot determine until it has begun, and that an interest cannot begin until it takes effect in possession, and from these premises the conclusion was adduced that the interests which were to determine? must be only and exclusively interests in possession. In my judgment, no such inference can be drawn from the use of the word ?determine.? There is one very good reason. By definition from the terms of the clause itself the interests which are to determine are all the interests of the son or daughter and his or her issue. They all determine uno
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flatu and at once. Obviously of those interests only one could be an interest in possession in any event; all the others must ex neccessitate be interests in remainder or reversion. Therefore, if the use of the word ?determine? introduces any ambiguity of the kind suggested, the testatrix had made herself her own dictionary and showed that in her view, at all events, an interest in expectancy can ?determine?. If corroboration of that view be needed, some slight support is to be found in the provisions of the Finance Act, 1894, which contains an exemption from death duties with respect to certain expectant interests. Section 5(3) of that Act provides: ?In the case of settled property, where the interest of any person under the settlement fails or determines by reason of his death before it becomes an interest in possession, and subsection limitations under the settlement continue to subsist, the property shall not be deemed to pass on his death.? There is thus, at all events, statutory authority, if authority be needed, for the view that an interest can be accurately described as ?determining? if it fails while it
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is yet reversionary in character.? Re Wilson?s Will Trusts, Tyron vs. Bromley-Wilson, (1950) 2 All E.R. 955, C.A., per Jenkins, L.J. at p.961.?
Where the dispute has not been put to an end there will be no ?determination?. In Baba vs. Civil Aviation (1991) 6 SCNJ 1, Karibi-Whyte, JSC held at page 25 that:-
?The term determination in this con means reaching a decision. Where, as in this case, the body is merely exploring or investigating the facts with no intention or power to decide, there is, in my view, no determination. So, contrary to the submission of learned Counsel for the appellant, the question of fair hearing in terms of Section 33(1) of the Constitution, 1979 did not arise under the Affini Panel.?
The provisions of Section 294(2)-(3) of the Constitution covers proceedings before the Court of Appeal and the Supreme Court. The provisions are not couched in similar fashion with the provisions of Section 36(1) and 294(1) of the Constitution which stipulates that a Court established under the Constitution is to render a decision after hearing evidence and final addresses within ninety days.
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This is omitted in Section 294(2)-(3) of the Constitution. Sections 36(1) and 294(1) of the Constitution reads:-
?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.
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294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.?
A violation of the provisions of Section 294(1) of the Constitution is to be remedied on appeal or by way of judicial review under Section 294(5) and (6) of the Constitution to wit:-
?294(5) The decision of
