DE GEES SITE AND SERVICE CONCEPTS LIMITED & ANOR v. ATTORNEY GENERAL OF OGUN STATE & ORS
(2018)LCN/12417(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 25th day of April, 2018
CA/IB/272/2013
RATIO
FUNDAMENTAL RIGHT: RIGHT TO FAIR HEARING
“The case of AGBITI v. NIGERIAN NAVY (2011) 4 NWLR pt. 1236 SC points out per ADEKEYE JSC that:
‘Fair hearing requires the observance of the joint pillars of the rules of natural justice namely;
a) Audi alteram partem, that is hear the other side
b) Nemo judex in causa sua, that is no one should be a Judge in his own cause. This is the rule against bias.’
Similarly in the case of NNPC v. CLIFCO NIG. LTD (2011) 10 NWLR 1255, 209 SC, it was stated per RHODES-VIVOUR, JSC that:
“The provision of Section 36 of the Constitution is mandatory. A Judge, or adjudicator, or arbitrator, in resolving a dispute should allow both parties to be heard and should listen to the point of view or case of both sides. Audi alteram partem and nemo judex in causa sua are maxims denoting basic fairness and a canon of natural justice”.” PER MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.
FUNDAMENTAL RIGHT: WHETHER FAIR HEARING INCLUDES RIGHT TO BE HEARD
“It is settled law that fair hearing includes the right to be heard. Thus, in the determination of the Civil Right and/or obligations of any person, the Court, Tribunal or other authority called upon to determine such rights and/or obligations, should not receive any evidence or representation which may damnify him without his being heard. See Garba v. University of Maiduguri (1986) 1 NWLR (pt. 18) 550 Obot v. CBN (1993) 8 NWLR (pt. 310) 140 and Nnajiofor v. Ukonu (1985) 2 NWLR (pt.9) 686. Thus, the proceeding which led to the Appellant being divested of his property without a hearing breached Section 36(1) of the 1999 Constitution (supra), and therefore cannot be sustained.” PER HARUNA SIMON TSAMMANI J.C.A
JUSTICES
MONICA BOLNA’AN DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
Between
1. DE GEES SITE AND SERVICE CONCEPTS LIMITED
2. MCGEES VENTURES LIMITED Appellant(s)
AND
1. ATTORNEY GENERAL OF OGUN STATE
2. THE GOVERNOR OF OGUN STATE
3. THE GOVERNMENT OF OGUN STATE
4. BUREAU OF LANDS AND SURVEY OF OGUN STATE Respondent(s)
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): This appeal challenges the decision of the High Court of Ogun State sitting at Abeokuta delivered by Hon. Justice O. O. Majekodunmi on the 7th day of June, 2013.
The Appellants were allegedly indicted by a commission of inquiry for fraud and based on the report and recommendation of the said commission; their respective Certificates of Occupancy were cancelled by the Government of the state.
The records were transmitted to the Court on the 31/7/13. The brief of the Appellant was filed on the 13/9/13 and the Respondents brief was filed on the 17/10/17 and deemed on the 30/11/17. The reply brief of the Appellant was filed on the 11/12/17.
The Appellants on appeal have raised the following issues for determination.
1. Whether in determining if the Appellants were granted fair hearing by the Judicial Commission of Inquiry set up by the 3rd Respondent, it would have been necessary for the lower Court to delve or inquire into the alleged indictment of third parties by the said Judicial Commission.
2. Whether the lower Court was right in its construction and application of the findings and ratio decidendi in GAFAR v. GOVERNMENT OF KWARA STATE (2007) 4 NWLR PART 1024, 375.
3. Whether the suit before the lower Court was properly and rightfully instituted under the Fundamental Rights (Enforcement Procedure) Rules, 2009.
The Respondents on their part submitted two issues for determination thus:
1. Whether the Fundamental Rights (Enforcement Procedure) Rules, 2009 was the appropriate procedure for the Appellants to initiate the action at the lower Court.
2. Whether the lower Court was right in construction and application of the findings and ratio decidendi in GAFAR v. GOVERNMENT OF KWARA STATE (2007) 4 NWLR PART 1024, 375.
ISSUE 1
Under this issue, the Appellant argues that the enforcement of its fundamental rights to fair hearing and own property in any part of Nigeria as guaranteed by Section 36 (1) and 43 of the Constitution, is its main claim and that the claim regarding the revocation of its certificate of occupancy is ancillary to and is hinged upon the enforcement of his right to be heard by the Judicial Commission of Inquiry.
Argues further in its Reply brief that its application was brought under Section 43 and not Section 44 of the Constitution as put forward by the Respondents in their brief. The Respondents on their part submit that:
The Apex Court has decided in a good number of cases that a person must be heard in a matter that affects his right or interest.
The case of AGBITI v. NIGERIAN NAVY (2011) 4 NWLR pt. 1236 SC points out per ADEKEYE JSC that:
‘Fair hearing requires the observance of the joint pillars of the rules of natural justice namely;
a) Audi alteram partem, that is hear the other side
b) Nemo judex in causa sua, that is no one should be a Judge in his own cause. This is the rule against bias.’
Similarly in the case of NNPC v. CLIFCO NIG. LTD (2011) 10 NWLR 1255, 209 SC, it was stated per RHODES-VIVOUR, JSC that:
“The provision of Section 36 of the Constitution is mandatory. A Judge, or adjudicator, or arbitrator, in resolving a dispute should allow both parties to be heard and should listen to the point of view or case of both sides. Audi alteram partem and nemo judex in causa sua are maxims denoting basic fairness and a canon of natural justice”.
It should be noted that the Respondents have not denied indicting the Appellants without hearing from them. Their only contention is the mode of commencement of the suit against them.
Section 1 of the Fundamental Rights (Enforcement Procedure) Rules, 2009 states that:
“Any person who alleges that any of the Fundamental Rights provided for in the Constitution or African Charter on Human and People?s Rights (Ratification and Enforcement) Act and to which he is entitled, has been, is being, or is likely to be infringed, may apply to the Court in the state where the infringement occurs, for redress.”
Section 28 of the Land Use Act provides that:
(1) It shall be lawful for the Governor to revoke a right of occupancy for overriding public interest.
(2) Overriding public interest in the case of statutory right of occupancy means-
(a) The alienation by the occupier by assignment, mortgage, transfer of possession, sub-lease or otherwise of any right of occupancy or part thereof or contrary to the provisions of this Act or of any regulation made thereto;
(b) The requirement of the land by the Government of the State or by a Local Government in the State, in either case, for public purposes within the State.
(c) The requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith.
(3) Overriding public interest in the case of customary right of occupancy means-
(a) The requirement of the land by the Government of the State or by a Local Government in the State, in either case, for public purposes within the State, or the requirement of the land by the Government of the Federation for public purposes of the Federation;
(b) The requirement of the land for mining purposes or oil pipelines or for any purpose connected therewith.
(c) The requirement of the land for extraction of building materials;
(d) The alienation by the occupier by sale, assignment, mortgage, transfer of possession, sub-lease, bequest or otherwise of the right of occupancy without the requisite consent or approval.
(5) The Governor may revoke a statutory right of occupancy on the ground of-
(a) A breach of any of the provisions which a certificate of occupancy is by Section 10 of this Act deemed to contain.
(b) A breach of any term contained in the certificate of occupancy or in any special contract made under Section 8 of this Act.
(c) A refusal or neglect to accept and pay for a certificate which was issued in evidence of a right of occupancy but has been cancelled by the Governor under Sub-section (3) of Section 9 of this Act.
The above sections provide circumstances and purposes for which the Governor of a State may revoke a right of occupancy and the procedure by which such right is invoked.
Section 29 of the Act goes further to provide compensation for persons whose right of occupancy have been revoked by the Governor. None of these requirements were met.
ISSUE 2
The case of ABDUL GAFAR v. THE GOVERNMENT OF KWARA STATE & 2 ORS (2007) 4 NWLR PART 1024, 375, bears facts similar to those of this appeal.
The Appellant was Secretary to the Government of Kwara State while he was in service. The Federal Government made grants to the Kwara State Government, the use of which was subject of a Commission of Inquiry set up by the 1st Respondent (Kwara State Government). The Commission in its report indicted the Appellant of misappropriation of funds and directed him to pay the sum of Two Million Naira (?2,000,000:00) to the 1st Respondent or forfeit his personal asset.
The Appellant challenged the directive at the Federal High Court where he filed an action for the enforcement of his fundamental right claiming that the Appellant had no right in law to try and find him guilty without affording him a right to fair hearing.
The Supreme Court unanimously held that the Federal High Court by virtue of its limited Jurisdiction had no power to adjudicate on the ancillary issues.
However, this case differs in the sense that this was filed in the High Court of the State.
Nonetheless, the thorny issue of fair hearing is one that is binding on every manner of adjudication.
A decision to divest a person of his possessions challenge the provisions of Section 43 of the Constitution which preserves and protects the right to acquire and own property. Before such a decision is taken, all the requisite provisions of the law must be complied with.
However, most fundamental of all these is the right to be heard even before the rules and regulations are applied.
To the extent that the Appellant was divested of his property without a hearing, and in total disregard of the clearly laid down procedure, his fundamental right was infringed upon.
No justice can flow from the infringement of an entrenched Constitutional right.
With utmost due respect, the learned trial Judge upheld injustice and this Court is duty bound to reverse such neglect of a fundamental right.
This appeal therefore succeeds and the decision of the trial Judge is hereby set aside.
HARUNA SIMON TSAMMANI, J.C.A.: I read in advance the draft of the judgment delivered by my learned brother, Monica B. Dongban-Mensem, JCA. Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) has enshrined therein, that 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.
It is settled law that fair hearing includes the right to be heard. Thus, in the determination of the Civil Right and/or obligations of any person, the Court, Tribunal or other authority called upon to determine such rights and/or obligations, should not receive any evidence or representation which may damnify him without his being heard. See Garba v. University of Maiduguri (1986) 1 NWLR (pt. 18) 550 Obot v. CBN (1993) 8 NWLR (pt. 310) 140 and Nnajiofor v. Ukonu (1985) 2 NWLR (pt.9) 686. Thus, the proceeding which led to the Appellant being divested of his property without a hearing breached Section 36(1) of the 1999 Constitution (supra), and therefore cannot be sustained.
On that note, I agree with the reasoning and conclusion of my learned brother that the appeal has merit. It is hereby allowed. The decision of the trial Court is hereby set aside.
NONYEREM OKORONKWO, J.C.A.: I have read in draft the judgment in this appeal delivered by my Lord Monica Bolna’an Dongba-Mensem JCA allowing the appeal and setting aside the decision of the trial Court. I agree with the lead judgment and abide by the orders made therein.
Appearances:
Dotun AkinsanmiFor Appellant(s)
I. N. Ajide Bello (PSC, Ogun State Ministry of Justice)For Respondent(s)
