BENUE STATE HOSPITALS MANAGEMENT BOARD & ORS v. MR. CALVIN KPUM
(2019)LCN/13231(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of May, 2019
CA/MK/144A/2014(R1)
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. BENUE STATE HOSPITALS MANAGEMENT BOARD
2. THE MINISTRY FOR HEALTH, BENUE STATE
3. THE HONOURABLE ATTORNEY-GENERAL, BENUE STATE Appellant(s)
AND
MR. CALVIN KPUM Respondent(s)
RATIO
THE FUNDAMENTAL PRINCIPLE OF CONSTRUCTION OF STATUTES
It is a well settled principle of construction of statutes that where a section names specific things among many other possible alternatives, the intention is that those not named are not intended. Expressio unius est exclusio alterius. See A-G. of Bendel State Vs Aideyan (1989) 4 NWLR. (Pt.118) 46. This is that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to the same issue ? see Ogbunyiya Vs Okudo (1979) 6 SC 32; Military Governor of Ondo State Vs Adewunmi (1988) 3 NWLR (Pt. 82) 280.
In Attorney-General, Abia State vs. Attorney-General, Federation (2005) All FWLR (Pt.275) 414 the Supreme Court held per Ejiwunmi, JSC from page 450 as follows:
It is clear and as rightly conceded by the learned Attorney-General of Imo State, that nowhere in Decree 41 of 1991 was the word liability mentioned. It is also good law that as a general rule of construction of statute that a Court is not entitled to read into a statute words which are excluded expressly, or impliedly from it. See Attorney-General, Ondo State vs. Attorney-General, Ekiti State (2001) FWLR (Pt.79) 1431, where at pp. 1472-1473, Karibi-Whyte, JSC observed that:
It is well established and cardinal principle of interpretation that where the ordinary meaning of the words used in a provision are clear and unambiguous, effect must be given to the words without resorting to any extrinsic aid. See Awolowo vs. Shagari (1979) 6-7 SC 51, (2001) FWLR (Pt.73) 53; Lawal vs. G.B. Ollivant (Nig.) Ltd. (1972) 3 SC 124. The solemn and sacred duty of the Court is to interpret the words used in the section by the legislature and give to them their intended meaning and effect. See Adejumo vs. Governor of Lagos State (1972) 2 SC 45. See also Attorney-General, Ogun State vs. Attorney-General, Federation (1982) 1-2 SC 13; Bronik Motors vs. Wema Bank (1983) 1 SCNLR 296 for the principle that in interpreting the Constitution or a Decree amending it, the Court should take into serious consideration the preamble of the Decree and objects and purposes of the provisions sought to be interpreted.? The resolution of disputes or controversies in the Court of Appeal and the Supreme Court are to be known as decisions; opinions or determinations by virtue of the provisions of Section 294(2) and 318(1) of the Constitution reads:
318(1) In this constitution, unless it is otherwise expressly provided or the con otherwise requires:-
“Decision” means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.” PER TUR, J.C.A.
JOSEPH TINE TUR, J.C.A. (Delivering the Lead Ruling): E.T.C. Akula, Esq., Principal State Counsel 1 in the Ministry of Justice filed this application on 22nd November, 2016 supported by affidavit praying for the following reliefs: –
1. An order of this Honourable Court, extending time for the Applicants to compile, transmit and serve the Record of Appeal in this Appeal.
2. An order of this Honourable Court, deeming the said Record of Appeal in this Appeal (already compiled, transmitted and served) as having being properly compiled, transmitted and served.
3. An order of this Honourable Court granting leave for the Applicants to file Additional Grounds of Appeal in this appeal.
4. An order of this Honourable Court granting leave for the applicants to raise and argue some fresh issues for the first time before this Honourable Court; to wit: the doctrines of laches, acquiescence and estoppel by conduct; inadmissibility of Exhibit ?1? as well as more or additional reasons for which Exhibit ?2? is inadmissible.
5. An order of this Honourable Court
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granting leave for the applicants to amend their Original Notice of Appeal.
6. An order of this Honourable Court extending time for the applicants to file their Brief of argument out of time.
7. An order of this Honourable Court deeming the clean copies of the Amended Notice of Appeal as well as the Appellants/Applicants? Brief of argument which are already filed in the Registry of this Honourable Court as having been properly filed and served.
8. Any other Order(s) as this Honourable Court may deem fit to make in the circumstances as to meet the justice of this case.?
The application is predicated on the following grounds: –
1. That due to the bureaucratic nature of the applicants in addition to some critical logistic challenges, the applicants could not compile, transmit and serve the Record of Appeal in this appeal within time, due to unforeseen circumstances beyond their control.
2. That the applicants could not file their brief of argument within time due to some logistic challenges and other unforeseen circumstances beyond their control.
3. That the applicants are desirous of prosecuting this
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appeal so that it can be determined on the merits.
4. That the applicants are desirous of filing additional grounds of appeal in order to bring all issues before this Honourable Court for a proper determination of the appeal.
5. That the applicants are desirous of filing their brief of argument to bring all issues before this Honourable Court so that the Appeal can be decided on the merits.?
E.T. Nyityo, Esq., Principal Litigation Registrar in the Ministry of Justice, Makurdi, Benue State swore to a 9 paragraph affidavit in support of the application on 22nd November, 2016. Accompanying the application are Exhibits ETC1 ETC3. Exhibit ETC1 is headed Additional Grounds of appeal. Exhibit ETC2 is headed Amended Ground of Appeal. The purport of Exhibit ETC3 is explained in paragraph 6 of the supporting affidavit as follows:-
6. That I know as of fact that the appellants have complied with the Order of the lower Court (i.e. Benue State High Court of Justice), directing them to pay the judgment sum in the Registry of the Letter
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with Reference No. S/HMB/605/VOL.IV/392 dated 16th November, 2016, forwarding Cheque No. 00003018, in the sum of One Million, One Hundred Thousand Naira (N1,100,000.00) only, to the Registrar of the lower Court and the latter?s acknowledgment of same with his official stamp and signature is hereby attached and marked as Exhibit ?ETC3?.?
The Respondent, Mr. Calvin Kpum verified the application on an affidavit sworn on 4th December, 2014. Accompanying the application is the Notice of Appeal (Exhibit ?1?), signed and dated 17th April, 2014 by A.V. Alex, Esq. in the Chambers of the Honourable Attorney-General and Commissioner for Justice, Benue State. The two applications were argued on 23rd January, 2019.
Learned Counsel however opposed the application on points of law. Akula, Esq. moved the application as follows:-
I move the application I filed on 22nd November, 2016 to compile and transmit the record of appeal out of time. To file additional grounds of appeal out of time. To raise fresh evidence. To amend the original Notice of Appeal and file a brief of argument out of time and deeming order. I rely
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on the grounds for bringing this application. I concede that the reasons for bringing this application based on logistic challenges and other unforeseen circumstances beyond their consent? is vague.
Okpale, Esq., did not file a counter-affidavit in respect of the motion argued by Akula, Esq. Principal State Counsel 1 on 22nd November, 2016.
Okpale, Esq. responded:-
This Court on 25th July, 2016 dismissed a similar application. The dismissal has not been set aside. There is no prayer to set aside that order. The applicant has not placed sufficient facts as to why this application is being brought out of time. The reasons are vague. Two grounds are on the motion. There is no indication which Counsel signed the application. The stamp bears Akula Emmanuel Terkula which is not the same as E.T.C. Akula, Esq. who did not tick his name. May the application be struck out together with the Notice of Appeal filed on 17th April, 2014. The respondent is yet to file a brief of argument.?
Akula, Esq. replied:-
We filed a brief of argument on 22nd November, 2016. The brief was served on the respondent on 23rd
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November, 2016 together with the Amended Notice of Appeal on 22nd November, 2016. May the argument of the learned Counsel be discountenanced.?
I am aware that the Constitution of the Federal Republic of Nigeria, 1999 as altered took effect from 29th May, 1999. See Section 320 of the Constitution. Section 36(1) and 294(1) of the Constitution reads as follows:-
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.?
The ninety days period prescribed in Section 294(1) of the Constitution for the determination of
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a cause or matter applies to Every Court established under this Constitution that hears evidence and relies on final addresses.But requirements do not apply to proceedings in the Court of Appeal nor the Supreme Court as the case may be, because are conducted in the Court of Appeal and the Supreme on briefs of argument supported by record of appeals under Order 19 Rule 1-3(1) and 9(1) of the Court of Appeal Rules, 2016 when the Rules took effect from 1st December, 2016. These provisions are to be read together with Section 294(2) of the Constitution of the Federal Republic of Nigeria, 1999 as altered:-
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.
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In Udoh vs. Orthopaedic Hospitals Management Board (1993) 7 SCNJ (Pt.2) 436 Karibi-Whyte, JSC held at page 443 as follows:
It is a well settled principle of construction of statutes that where a section names specific things among many other possible alternatives, the intention is that those not named are not intended. Expressio unius est exclusio alterius. See A-G. of Bendel State Vs Aideyan (1989) 4 NWLR. (Pt.118) 46. This is that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to the same issue ? see Ogbunyiya Vs Okudo (1979) 6 SC 32; Military Governor of Ondo State Vs Adewunmi (1988) 3 NWLR (Pt. 82) 280.
In Attorney-General, Abia State vs. Attorney-General, Federation (2005) All FWLR (Pt.275) 414 the Supreme Court held per Ejiwunmi, JSC from page 450 as follows:
It is clear and as rightly conceded by the learned Attorney-General of Imo State, that nowhere in Decree 41 of 1991 was the word liability mentioned. It is also good law that as a general rule of construction of statute that a Court is not entitled to read into
8
a statute words which are excluded expressly, or impliedly from it. See Attorney-General, Ondo State vs. Attorney-General, Ekiti State (2001) FWLR (Pt.79) 1431, where at pp. 1472-1473, Karibi-Whyte, JSC observed that:
It is well established and cardinal principle of interpretation that where the ordinary meaning of the words used in a provision are clear and unambiguous, effect must be given to the words without resorting to any extrinsic aid. See Awolowo vs. Shagari (1979) 6-7 SC 51, (2001) FWLR (Pt.73) 53; Lawal vs. G.B. Ollivant (Nig.) Ltd. (1972) 3 SC 124. The solemn and sacred duty of the Court is to interpret the words used in the section by the legislature and give to them their intended meaning and effect. See Adejumo vs. Governor of Lagos State (1972) 2 SC 45. See also Attorney-General, Ogun State vs. Attorney-General, Federation (1982) 1-2 SC 13; Bronik Motors vs. Wema Bank (1983) 1 SCNLR 296 for the principle that in interpreting the Constitution or a Decree amending it, the Court should take into serious consideration the preamble of the Decree and objects and purposes of the provisions sought to be interpreted.?
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The resolution of disputes or controversies in the Court of Appeal and the Supreme Court are to be known as decisions; opinions or determinations by virtue of the provisions of Section 294(2) and 318(1) of the Constitution reads:
318(1) In this constitution, unless it is otherwise expressly provided or the con otherwise requires:-
“Decision” means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.”
A combined reading of the provisions of Section 294(2)-(3) and 318(1) of the Constitution is authority that I can head the resolution of the issues in these applications as determination; decision or an opinion. Each Justice that heard argument in the two applications has the freedom and liberty to render an independent opinion, decision or determination. A 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:-
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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 Blacks 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
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issue). (Cases: Administrative Law and Procedure, 489, Federal Civil Procedure, 928).
Initial determination: The first determination made by the Social Security Administration of a persons 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 easements determination after four years) determine, vb.
In Osborns 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:-
It is said that ?termination? and ?determination? do not mean the same thing; that
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?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 te
