EDUN & ORS v. THE SPEAKER, CROSS RIVER STATE & ORS (2020)

EDUN & ORS v. THE SPEAKER, CROSS RIVER STATE & ORS

(2020)LCN/14864(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, December 02, 2020

CA/C/195/2020

RATIO

EVIDENCE: ON WHOM LIES THE DUTY OF PROVING THE EXISTENCE OF FACTS

It is trite law that the law imposes on whoever desires any Court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, the burden of proving that those facts exists, rests on that person. This is by virtue of Section 131 (1) of the Evidence Act 2011. See also the recent decision of Anyanwu vs. PDP (2020) 3 NWLR (pt. 1710) 134 @177. PER BARKA, J.C.A.

CONSTITUTIONAL LAW: LAW ON DISCRIMINATION

And contended that the refusal to confirm the appellant based on the foregoing means that the nominee was discriminated, upon and in breach of the constitutional provisions of Section 42 of the Constitution, which provided as follows:
1. A citizen of Nigeria of a particular community, ethnic group, place of origin, sex, religion or political opinion shall not, by reason only that he is such a person:
a. Be subjected either expressly by or in the practical application of, any law in force in Nigeria or any executive or administrative action of the government, to disabilities or restrictions to which citizens of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or
b. Be accorded either expressly by or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex religions or political opinions.
2. No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstance of his birth.
3. Nothing in Subsection (1) shall invalidate any law by reason only that the law imposes restrictions with respect to the appointment of any person to any office under the state or as a member of the armed forces of the Federation or member of the Nigerian police Forces or to an office in the service of a body corporate established directly by any law in force in Nigeria. PER BARKA, J.C.A.

EVIDENCE: DUTY OF THE TRIAL COURT IN RELATION TO EVALUATION OF EVIDENCE

It is now elementary the trite legal position that the evaluation of evidence and the ascription of probative value resides with the trial Court. This is obviously so in view of its singular advantage of having seen, watched and evaluated the countenance of the witness in the witness box. PER BARKA, J.C.A.

EVIDENCE: POWER OF THE APPELLATE COURT TO EVALUATE DOCUMENTARY EVIDENCE

Where however the issue to be evaluated resides in documentary evidence, the trial Court as well as the appellate Court has equal right to evaluate and to arrive at the right decision. PER BARKA, J.C.A.

INTERPRETATION: CARDINAL RULE OF INTERPRETATION

It is trite rule of interpretation that when the words used in a document are clear and unambiguous, the Court must give it its ordinary meaning, as it cannot import meaning into the clear wordings of a document. See the cases of ANIMASHAUN & ANOR v. OGUNDIMU & ORS (2015) LPELR-25979 (CA); DANGANA v. USMAN (2013) 6 NWLR (PT.1349) 50 at 80-81 H-B. PER BARKA, J.C.A.
CONSTITUTIONAL LAW: POSITION OF THE LAW WITH REGARDS TO THE APPOINTMENT OF A PERSON INTO THE OFFICE OF A CHIEF JUDGE OF THE STATE

At this point, I find it necessary to state the position of law with regards the appointment of a person into the office of a Chief Judge of the State. To this end, I shall reproduce the provisions of Section 271(1) of our Constitution below:
271(1) The appointment of a person to the office of Chief Judge of a State shall be made by the Governor of the State on the recommendation of the National Judicial Council, subject to confirmation of the appointment by the House of Assembly of the State.
From the above provision, it is clear that the Constitution gives the House of Assembly of a State the unfettered powers and discretion in the issues of confirmation of a Chief Judge of a State. The Constitution has not imposed on the House of Assembly any specific matter which must be considered in deciding whether to confirm or withhold confirmation as the case maybe. What is more, proceedings of legislative houses in Nigeria enjoy some form of privileges, and such document emanating from the proceedings from the House of Assembly of a State cannot give rise to any liability, whether civil or criminal against the Legislators. See Section of the Legislative House (powers and privileges) Act 2008. PER BARKA, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

1. OLUKUNLE EDUN 2. IKE AUGUSTINE 3. O. ADAMS OCHUAGU 4. EMMANUEL EWERE 5. ADEDAPO ADEJUMO APPELANT(S)

And

1. THE SPEAKER, CROSS RIVER STATE 2. CROSS RIVER STATE HOUSE OF ASSEMBLY 3. GOVERNMENT OF CROSS RIVER STATE RESPONDENT(S)

HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The instant appeal arose as a result of the judgment of the Federal High Court, sitting in Calabar, quorum; S. A. Amobeda J in suit FHC/CA/FHR/31/2020 delivered on the 8th day of April, 2020. By the said decision, the trial Court conclusively held that:
“From all I have said above, I am therefore unable to agree with Learned Counsel for the applicants that the non confirmation of Justice Akon Ikpeme as Chief Judge of the Cross River State was due to the fact that she is not an indigene of Cross River State, and therefore an infraction on her fundamental right to freedom from discrimination guaranteed under Section 42 (1) of the Constitution of the Federal Republic of Nigeria 1999 as amended. Thus the applicants have not been able to satisfactorily establish their claim that the fundamental right of Justice Akon Ikpeme was in any way breached by the respondents in this suit.”

The facts that germinated the instant appeal arose when the immediate past Chief Judge of Cross River State, Hon. Justice Michael Edem retired from service, and Hon. Justice Akon Ikpeme being the most

senior judge, and also in compliance with the Constitution of the Federal Republic of Nigeria 1999, appointed her in acting capacity as the acting State Chief Judge. That was sometimes in November, 2019. The name of The Hon. Justice Akon Ikpeme along with others were then forwarded to the National Judicial Council, and after due consultation and recommended for appointment as the substantive Chief Judge of Cross River State to the Governor of the state subject to confirmation by the 2nd respondent. It is on record that the said Hon. Justice Akon Ikpeme, was screened by the Cross River State House of Assembly through its House committee on Judiciary, Public Service Matters, Public Petitions and conflict resolution; and while the Chairman of the committee Hon. Efah Esua presented a minority report, tagged Exhibit 1, recommending the confirmation of the Hon. Justice Akon Ikpeme as the substantive Chief Judge, the other members of the committee submitted a parallel report also tagged Exhibit 2, opposing the confirmation of the Hon. Justice Akon Ikpeme as the substantive Chief Judge of Cross River State. When the two reports were presented to the House of Assembly,

the House declined confirming Justice Ikpeme as the substantive Chief Judge.

Owing to the foregoing facts, the applicants, now appellants sometimes on the 13th of March, 2020 by way of a motion brought on notice pursuant to Order II Rule 1 and 2 of the Fundamental Rights (Enforcement procedure) Rule, 2009, Section 42 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), Article 2 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act and under the inherent jurisdiction of the Court, sought for the following reliefs:
i. A declaration that Hon. Justice Akon Ikpeme is a citizen of Nigeria and entitled to be appointed to any office in Cross River State by virtue of her citizenship and is guaranteed from discrimination the right to freedom from discrimination by the Constitution of the Federal Republic of Nigeria 1999 as amended.
ii. A declaration that the non-confirmation of Hon. Justice Akon Ikpeme as the substantive Chief Judge of Cross River State by the Cross River State House of Assembly solely on the basis that she is not from Cross River State is unlawful, unconscionable, discriminatory and

amounts to a gross violation of her constitutionally guaranteed Fundamental Right to freedom from discrimination.
iii. A declaration that the non-confirmation of Hon. Justice Akon Ikpeme as the substantive Chief Judge of Cross River State by the Cross-River State House of Assembly on the basis that she is not from Cross River State and therefore a security risk is a violation of her constitutionally guaranteed fundamental right to freedom from discrimination.
iv. An order setting aside the decision of the Cross River State House of Assembly made on the 2nd of March, 2020, rejecting and refusing the confirmation of Hon. Justice Akon Ikpeme for being a nullity as same is in gross violation of her fundamental right to freedom from discrimination.
v. Exemplary and Aggravated Damages in the sum of N100,000,000.00 (One Hundred Million Naira only) against the respondents jointly and severally for the untold hardship, psychological trauma and public ridicule/humiliation suffered by Hon. Justice Akon Ikpeme as a result of the violation of her right to freedom from discrimination.
vi. And for such further or other orders as this Honourable Court may

deem fit to make in the circumstances of this application.

The application was supported by a statement brought pursuant to Order II Rule 3 of the Fundamental Rights (Enforcement Procedure) Rules 2009 and a 20 paragraph affidavit deposed to by Ike Augustine, the 2nd applicant in the case. Hinged on the application are the two parallel reports from the House Committee on Judiciary, and a written address.

The respondents in opposing the application filed a counter affidavit and a written address. Respondent also filed a preliminary objection challenging the competence of the suit as well as the jurisdiction of the trial Court to hear and determine the application. At the close of arguments, the trial Court dismissed the preliminary objection, and rendered the vexed judgment also dismissing the application. That was on the 8th of April, 2020.

Aggrieved with the decision of the trial Court, wherein their application was dismissed, appellants filed a notice of appeal on the 13th of May, 2020 predicated upon four grounds of appeal. The records of appeal having been compiled and transmitted to this Court on the 8th of July, 2020, appellant filed a

brief of argument the next day, being the 9th of July, 2020. On receipt of the respondents brief, appellant filed a reply brief on the 29th of September, 2020. On the 4th day of November, 2020 being the scheduled hearing date, Chief Ferdinand Oshioke Orbih, SAN leading Daniel K. Kip identified the two processes filed on behalf of the appellant, adopted the same and urged the Court to allow the appeal. By way of adumbration, the learned senior counsel made reference to page 21 of the record on the reasons for the non-confirmation of the nominee. He maintained that the nominee was discriminated because of her place of origin, and further that the security concerns expressed were due to her place of origin. The senior counsel then drew the Court’s attention to paragraph 4.9 of the respondent’s brief as well as page 137 for the basis for the reasons for the non-confirmation, and referred to pages 50 – 51 of the record being a resolution of the House, opining that what the respondents produced was a letter as against the record of proceedings of the House. He urged the Court to invoke the provisions of Section 167 (d) of the Evidence Act,

respondents having failed to produce the proceedings of the House relative to the non-confirmation of the nominee and thereby urged the Court to allow the appeal.

In opposing the appeal, respondent filed a respondents’ brief on the 3rd of August, 2020. On the 4th of November, 2020, when the appeal came up for hearing, Tanko Ashang, the Honourable Attorney General and Commissioner for Justice, Cross River State, leading I. E. Ikona, Director Appeals in the Ministry of Justice Cross River State, also identified and adopted the brief settled by him and urged the Court to dismiss the appeal. Also responding to the adumbration by the learned senior counsel, the Hon. Attorney General affirmed that the issue of discrimination against the Hon. Justice Akon Ikpeme did not arise. The learned Attorney General referred to pages 50 – 51 of the records, being the correspondence from the state House of Assembly to the state Governor, dated the 2nd of March, 2020, while Exhibits 1 and 2 are reports from the sub committees of the House. Counsel also drew the Courts attention to page 21 of the record containing the reasons for the non-confirmation of the

nominee, stating that paragraphs 8, 9 and 10 of the counter affidavit not having been further countered are deemed as having been admitted. He insisted that there was no discrimination with regards to the non-confirmation of the nominee.

For the resolution of the appeal, appellants identified two issues for resolution as follows:
i. Whether the learned trial Judge was right to have held that there was nowhere in the appellant’s claim or exhibits that showed that the basis for which the respondents refusal to confirm Hon. Justice Akon Ikpeme as the Chief Judge of Cross River State was due to her place of origin.
ii. Whether the learned Trial Judge was right to have discountenanced and not attach any probative value to Exhibits 1 and 2 attached to the applicant’s affidavit, but relied solely on the respondents Exhibit CRS1 in determining the basis for the respondents’ refusal to confirm Hon. Justice Akon Ikpeme as the Chief Judge.

The respondents adopted the two issues for determination as formulated by the appellants. I adopt the same in the resolution of the appeal, and will consider the issues concurrently.

Issue One
Whether the learned Trial Judge was right to have held that there was nowhere in the appellant’s claim or exhibits that showed that the basis for which the respondent’s refusal to confirm Hon. Justice Akon Ikpeme as the Chief Judge of Cross River State was due to her place of origin.

Learned senior counsel on the issue, made reference to exhibits 1 and 2 before the Court, and contended that the respondents never contended that the two exhibits formed part of the deliberations of the house that led to the passing of a resolution refusing to confirm Hon. Justice Akon Ikpeme as the substantive Chief Judge of Cross River State. Relying on the authority of Mabamije vs. Otto (2016) 252 LRCN 78, to the effect that, where an affidavit is filed deposing to certain material facts and the other party fails to file a counter affidavit disputing the facts, the facts deposed therein would be deemed as being unchallenged and undisputed.

He goes on to submit that whereas the primary duty of a Court of trial is to evaluate evidence, where the evidence to be evaluated is documentary; an appellate Court is in as much a pre-eminent position to

equally evaluate. He anchored his submission on the case of CPC & Anor vs. Ombugadu & anor (2013) LPELR-21007 (SC). He contended that the failure of the trial Judge to properly evaluate Exhibits 1 and 2 is prejudicial and perverse, and invited the Court to correct the grievous misdirection, by evaluating the two exhibits. Also referring to the case ofSamchase (Nig) Ltd vs. Gidado (2014) ALL FWLR (pt. 760) 1346, which held that where a Court overlooks relevant matters in arriving at its decision, an appellate Court can intervene, and the case of Atolagbe vs. Shorun (1985) 1NWLR (pt. 2) 360 @ 375 on what amounts to perverse decision, argued that by Exhibit 2, the basis for the refusal of the respondents to confirm Hon. Justice Akon Ikpeme as the substantive Chief Judge of Cross River State is stated therein. He posits that the Court was therefore in error holding that that there was nowhere in the exhibits where it was stated that the non confirmation of Hon. Justice Akon Ikpeme was predicated on her place of origin.

Learned counsel alluded to excerpts of the lower Courts holding on the issue at pages 136 of the record, submitting that the trial

Court failed to evaluate the glaring evidence of discrimination on the basis of birth in Exhibit 2, maintaining that the failure of the Court to so evaluate Exhibit 2 occasioned a fatal miscarriage of justice, or simply put, had the Court properly evaluated the piece of evidence, it would have arrived at the conclusion that the non-confirmation was hinged on her place of origin which generated non-existent security concerns in the minds of the members of the House in approving Exhibit 2.

The learned senior counsel then drew the Court’s attention to the provisions of Section 42 of the Constitution of the Federal Republic of Nigeria 1999 As amended, as well as Article 2 of the African Charter on Human and Peoples Rights (Ratification and Enforcement) Act, contending that in a democratic society such as ours, is governed by laws and not by impunity or executive or Legislative fiat. Citing the cases of AG Abia vs. AG Federation (2002) 6 NWLR (pt. 763) 264 per Kutigi JSC, and Ebiteh vs. Obiki (1992) 5 NWLR (pt. 243) 599 @ 617 per Ejiwunmi JCA as he then was, opined that all actions must reflect the Constitution or else they will be considered a nullity.

It is the further argument of learned counsel that the respondent having stamped Exhibit 2, violated the provisions of the Constitution, and urged the Court to be guided by the illuminating decision of Niki Tobi JSC, in Inakoju vs. Adeleke (2007) ALL FWLR (pt. 353) 3 @ 123, and to hold that the respondents violated the fundamental rights of Hon. Justice Akon Ikpeme to freedom from discrimination on the basis of her state of origin.

On Issue Two, which is; Whether the learned Trial Judge was right to have discountenanced and not attach any probative value to Exhibits 1 and 2 attached to the appellant’s affidavit, but relied solely on the respondents Exhibit CRS 1 in determining the basis for the respondent’s refusal to confirm the Hon. Justice Akon Ikpeme as the Chief Judge of Cross River State, the learned counsel for the appellant reiterated his position that the trial Court was wrong to have discountenanced Exhibits 1 and 2 tendered by the appellants, rather relying heavily on Exhibits CRS1 tendered by the respondents. He complained that the trial Court failed to carry out its primary duty of evaluation and this Court is being called upon

to interfere, and the case of MV Courageous Ace & Ors vs. Nigerdock (Nig) Plc (2016) LPELR-40223 (CA) was relied upon in support of the legal principle.

He faulted the lower Court’s holding to the effect that Exhibits 1 and 2 were mere reports of the house committee and not a resolution, thus urging the Court to reverse the findings of the lower Court. Alluding to paragraphs 7 – 10 of the respondents counter affidavit to the originating motion, it was argued that whereas the two reports were tabled before the house for consideration, the lower Court discountenanced Exhibits 1 and 2 and relied on Exhibit CRS1 to dismiss the appellant’s case.

Learned counsel drew the attention of the Court to paragraph 10 of the counter affidavit in support of their argument that Exhibit 2 was adopted and relied upon and further alluded to Exhibit CRS1, to submit that Exhibit 2 was the foundation upon which the resolution for the non-confirmation of Justice Ikpeme was built. He queried why the proceedings of the House on the 2nd of March, 2020 was not attached to the resolution, contending that the record of proceedings if produced will reveal

that the main reason why the House withheld the confirmation of the nominee was because she was not an indigene of Cross River State, as against the garment of security risk adduced by the House, thereby urging the Court to invoke the provisions of Section 167 (d) of the Evidence Act, 2011. He insists that Exhibits 1 and 2 were most crucial to the Court’s successful determination of the application, and the Court’s failure to rely on same was perverse.

The response of the learned counsel for the respondent, particularly on the 1st issue is that the trial Court was legally justified in dismissing the appellants suit on the ground that the non-confirmation of the nominee as the state Chief Judge by the respondent on the 2/3/2020 was not based on the fact that she is not an indigene of Cross River State and therefore a security risk. He referred to the reasons advanced by the appellant in bringing the application before the lower Court, and the response thereto by the respondents, contending that by Section 270 (2) (a) of the 1999 Constitution of the Federal Republic of Nigeria made provision for the office of a State Chief Judge, who is the head

of the Judiciary in the State. He submits that due to the importance of the office, a special procedure for his appointment was provided for under Section 271 of the Constitution for his appointment. He posits that by Section 271 (1) of the Constitution, the process of confirmation is a parliamentary and constitutional matter for the purpose of evaluating nominees for the office. He conceded to the fact that Exhibits 1 and 2 attached to the appellant’s affidavit in support of the motion are reports from the State House of Assembly, and that the reasons for the non-confirmation of the nominee as the state Chief Judge are clearly spelt out in Exhibit 2, captured at page 21 of the record, which was deposed to by the appellants themselves. He goes further to state that appellants failed to file a further affidavit in response to the reasons advanced in the counter affidavit. It was also the argument by the respondent that it is not bound to offer any reason for her inaction as it was not so intended by Sections 271 (1) of the Constitution. The case of Obayuwana vs. Government of Bendel State & Anor (1982) LPELR-2160 (SC) was cited on the point.

Still relying on the case of Danladi vs. Taraba State House of Assembly & Ors (2014) LPELR 24021 (SC) and Obayuwana vs. Govt of Bendel State (supra), which held that in the exercise of its sovereign legislative powers, the House of Assembly is under no obligation to express the reasons that motivated it to enact the law, and thereby from the combined effect of Sections 4(6), 4 (7), 271 (1) of the 1999 Constitution as well as Section 128 thereof, the House of Assembly has the powers to confirm or refuse the confirmation of the nominee. The further case of Okedeyi & Ors vs. Governor of Lagos State (2014) LPELR-23132 (CA) was also cited on the legal proposition.

He continued to argue that the corporate rights of the members of the house are exercisable collectively and the decisions arriving therefrom represents the decision of the house called resolution, and usually made by voting by the members of the house. He contended that the recommendations of a committee set up by the house are not final, but are further subjected to further deliberations by the full house in a plenary session. He denied the assertion that there was no evaluation of the evidence

adduced, rather pointing out that the lower Court from pages 136 – 137 of the record showed clearly that the evaluation of Exhibits 1 and 2 was unimpeachable. He further denied the insinuation that the nominee was discriminated against as contended by the appellants, positing that all the cases cited by the appellants on the issue are inapplicable.

With respect to the 2nd issue canvassed by the appellants, it was submitted by the respondent that the trial Court was right to have relied on Exhibit CRS 1, which conveyed the final decision or resolution of the House rejecting the confirmation of Justice Ikpeme as the State Chief Judge. Learned counsel enumerated reasons why the Court refused to rely on the two earlier exhibits contending that Exhibit CRS 1, conveying the decision of the House by the clerk of the Assembly is correct, authentic, valid, reliable and admissible in law. He alluded to paragraphs 8 and 9 of the counter affidavit filed by the respondent contending that the paragraphs having not been further countered are deemed admitted upon the authority of Lawson Jack vs. The SPDC Nigeria Ltd (2002) 7 SC (pt. 11) 12. The respondent denied

withholding any evidence, arguing that by Section 133 of the Evidence Act 2011, appellants had the burden of tendering the votes and proceedings of the House having disputed Exhibit CRS1. He maintained that the trial Judge was right to have relied on Exhibit CRS 1 in reaching its decision and thereby urged the Court to dismiss the appeal accordingly.

By way of reply on points of law, appellant filed the appellants reply on points of law, which I intend to refer to and incorporate in the determination of the issues at the judgment stage.

The issue germane to the resolution of the appeal, can be understood from the sole issue canvassed before the lower Court, to wit; whether from the facts and the circumstances exposed in the application before the lower Court, the constitutional right to freedom from discrimination of the Hon. Justice Akon Ikpeme was not violated and or breached by the respondents in its decision of the 2/3/2020, allegedly basing her non-confirmation as the Chief Judge of Cross River State on the singular fact that she was not an indigene of the State and thereby a security risk. Impliedly, the appellants alleged that the

non-confirmation of the Hon. Justice Akon Ikpeme of the Cross River State High Court as the State Chief Judge by the respondent was on the basis that she was not an indigene of the state.

As earlier alluded to the facts germinating the issue leading to the instant appeal are not in dispute. Parties are all agreed that upon the retirement of Hon. Justice Micheal Edem, the office of the Chief Judge of Cross River State became vacant. Consequent upon that the name of Hon. Justice Akon Ikpeme being the most senior Judge acted and was later recommended to the National Judicial Council for appointment as the substantive Chief Judge of the state. Having also been endorsed by the National Judicial Council, what remained was for the nominee to be confirmed by the State House

of Assembly as demanded by Section 271 (1) of the Constitution of the Federal Republic of Nigeria, 1999. The House of Assembly on receipt of the nomination of the nominee mandated its committee on judiciary to screen the nominee.

Curiously the committee at the close of their assignment presented two different and conflicting reports. While the minority report signed by the chairman of the committee recommended the confirmation of the nominee, the other members opposed the nominee’s confirmation. Ostensibly, the two reports were laid before the House at plenary, and after extensive debate, the House declined confirming the nominee as the substantive Chief Judge of Cross River State.

Of equal importance is the fact that the nominee though married to an indigene of Cross River State, and had all her working career in the state, her place of birth remains the neighbouring Akwa Ibom State. This fact has not been denied by any of the parties. Before the Court below, where appellant’s prayed that the nominee was discriminated against because of her place of origin, the two divergent reports of the committee on judiciary was hinged and relied

upon by the appellants and taken in evidence as Exhibits 1 and 2 respectively, while Exhibit CRS 1, emanating from the respondents was the purported resolution of the House on the matter.

Appellants now complain that the lower Court failed to properly evaluate the evidence before it, most particularly the contents of Exhibits 1 and 2, and thereby arrived at a perverse decision. He alluded to the contents of Exhibit 2, where it was reported that:
“The House committee reiterates the fact that the 9th Assembly is committed to creating a conducive atmosphere where all Nigerians would thrive irrespective of race culture or place of origin. However the house committee only considered the issue of the place of origin of the nominee only for the purpose of addressing the concerns earlier mentioned in this report as the security of the state and the welfare of its citizens are paramount considerations and/or take precedence over any other matter.
RESOLUTION:
After considering the above outcome, the house committee has resolved as follows:
1. It is hereby suggested that the confirmation of the Hon. Justice Akon Ikpeme should be withheld by

the Cross River State House of Assembly as she is not in the circumstance, fit to be appointed and confirmed as the substantive Chief Judge of Cross River State.
2. That the best interest of the State and its people would not be served if Hon. Justice Akon Ikpeme is confirmed as the Chief Judge of Cross River State.
3. The Cross River State Judiciary would bear the negative brunt and head towards imminent collapse in the view of its already frail nature, if the Hon. Justice Akon Ikpeme is confirmed as the substantive Chief Judge of Rivers State.”

restrictions to which citizens of other communities, ethnic groups, places of origin, sex, religions or political opinions are not made subject; or
b. Be accorded either expressly by or in the practical application of, any law in force in Nigeria or any such executive or administrative action, any privilege or advantage that is not accorded to citizens of Nigeria of other communities, ethnic groups, places of origin, sex religions or political opinions.
2. No citizen of Nigeria shall be subjected to any disability or deprivation merely by reason of the circumstance of his birth.
3. Nothing in Subsection (1) shall invalidate any law by reason only that the law imposes restrictions with respect to the appointment of any person to any office under the state or as a member of the armed forces of the Federation or member of the Nigerian police Forces or to an office in the service of a body corporate established directly by any law in force in Nigeria.

It is now elementary the trite legal position that the evaluation of evidence and the ascription of probative value resides with the trial Court. This is obviously so in view of its singular

advantage of having seen, watched and evaluated the countenance of the witness in the witness box. Where however the issue to be evaluated resides in documentary evidence, the trial Court as well as the appellate Court has equal right to evaluate and to arrive at the right decision. The cardinal and determinant question arising is whether the lower Court validly evaluated the evidence before it in arriving at the decision that at nowhere in the exhibits did appellants show that the basis upon which the respondents refused to confirm the nominee was based on her state of origin. The lower Court considered the question from pages 136 – 139 of the record. I wish to reproduce the reasoning of the lower Court in extension:
“Having carefully gone through all the exhibits of parties before me, it is my observation that there is nowhere in any of the exhibits where it was stated that the non-confirmation of Hon. Justice Akon Ikpeme was predicated upon her place of origin. Although in paragraph 9 of Exhibit 2 of the applicant’s exhibits it was stated that the issue of the place of origin of the nominee (Justice Akon Ikpeme) was considered by the

House, there is nowhere in the said exhibit where the recommendation for the withdrawal of confirmation of the nominee was based on the issue of the place of origin. Furthermore, Exhibits 1 and 2 of the Applicant’s exhibit are mere reports of the House Committee submitted by either the committee as a whole or from other opposing members of the committee and does not represent the Resolution of the House a report of the Committee can only become the resolution of the House. A report of a committee can only become the resolution of the house if it is voted upon and adopted by the House as its resolution. The applicants in their Affidavit alluded to this point when they stated in paragraph 10 and 11 to the effect that Exhibits 1 and 2 are Reports represented by the chairman of the House Committee on Judiciary of the 2nd Respondent as well as a dissenting member of the House, Hon. Godwin Akwaji respectively. Thus, the only document before me that qualifies as the Resolution of the Cross River State House of Assembly and expresses the intents of the Legislators with regards the non-confirmation of Hon. Justice Akon Ikpeme, is Exhibit CRS 1 attached to the

Affidavit of the Respondents. A careful scrutiny of the said Exhibits CRS 1 discloses that what the Members of the House of Assembly considered in reaching their resolution for withholding the confirmation of Hon. Justice Akon Ikpeme was the allegations of security situation that such appointment/confirmation will hold for the State, and also that throughout the period of her acting appointment, Her Lordship was more concerned about the politics surrounding her confirmation and other irrelevant issues at the detriment of other official matters, although the House of Assembly did not state the security challenge that the confirmation of Justice Akon Ikpeme would pose to the State, this Court is of the considered opinion that the House of Assembly is not under any duty to so disclose, as they are masters of their own proceedings and cannot be compelled by this Honourable Court with regards to their proceedings.

From the above therefore, it is clear from the express tone of Exhibit CRS 1 that the reasons for the withholding of the confirmation of Justice Akon Ikpeme as the Chief Judge of Cross River State, does not in any way convey the impression that such

withholding of her confirmation was due to the fact that she was not an indigene of Cross River State as canvassed by the Applicant’s. It is trite rule of interpretation that when the words used in a document are clear and unambiguous, the Court must give it its ordinary meaning, as it cannot import meaning into the clear wordings of a document. See the cases of ANIMASHAUN & ANOR v. OGUNDIMU & ORS (2015) LPELR-25979 (CA); DANGANA v. USMAN (2013) 6 NWLR (PT.1349) 50 at 80-81 H-B.
At this point, I find it necessary to state the position of law with regards the appointment of a person into the office of a Chief Judge of the State. To this end, I shall reproduce the provisions of Section 271(1) of our Constitution below:
271(1) The appointment of a person to the office of Chief Judge of a State shall be made by the Governor of the State on the recommendation of the National Judicial Council, subject to confirmation of the appointment by the House of Assembly of the State.
From the above provision, it is clear that the Constitution gives the House of Assembly of a State the unfettered powers and discretion in the issues of confirmation

of a Chief Judge of a State. The Constitution has not imposed on the House of Assembly any specific matter which must be considered in deciding whether to confirm or withhold confirmation as the case maybe. What is more, proceedings of legislative houses in Nigeria enjoy some form of privileges, and such document emanating from the proceedings from the House of Assembly of a State cannot give rise to any liability, whether civil or criminal against the Legislators. See Section of the Legislative House (powers and privileges) Act 2008.
From all I have said above, I am therefore unable to agree with Learned Counsel for the Applicants that the non-confirmation of Justice Akon Ikpeme as the Chief Judge of Cross River State was due to the fact that she was not an indigene of Cross River State, and therefore an infraction on her Fundamental right to Freedom guaranteed under Section 42(1) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Thus, the Applicants have not been able to satisfactorily establish their claim that the fundamental right of Justice Akon Ikpeme was in anyway breached by the Respondent’s in this suit.

It is trite law that he who asserts must prove. Thus, any person who desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. See Section 131(1) of the Evidence Act, 2011; Okonkwo v. Zurmi & Anor (2018) LPELR-46855 (CA); and Zango vs. Sight & Sound Communications Ltd (2018) LPELR-45047(CA).
The applicants having asserted that the respondents breached the fundamental right of Justice Akon Ikpeme, had the onus of placing before this Court credible and cogent evidence in proof of their claim, the burden which they have to my mind, failed to discharge.
The reasoning and conclusion of the lower Court on the issue looks sound to me.
It is vital to note as contended that Section 271 (1) of the Constitution of the Federal Republic of Nigeria 1999, stipulates that:

271 (1) The appointment of a person to the office of Chief Judge of a State shall be made by the Governor of the State on the recommendation of the National Judicial Council subject to confirmation of the appointment by the House of Assembly of the state.

Both parties are on common ground with respect to the powers of the House of Assembly to confirm or to with hold confirmation of a nominee as the state Chief Judge for whatever reasons or for no reasons at all. It is also commonsensical, as contended that where reasons which violates the constitutional rights of an individual are asserted by the confirming body, a Court of law has the bounden duty to inquire into the reason so advanced.
The appellants strongly contend that the lower Court failed in its duty of evaluation and thereby failed to appreciate the import of the expression in Exhibit 2, which reads that; “However the house committee only considered the issue of the place of origin of the nominee only for the purpose of addressing the concerns earlier mentioned in this report as the security of the state and the welfare of its citizens are paramount considerations and/or take precedence over any other matter” to mean that, for the purposes of the exercise of confirmation, the issue of the nominees place of origin was placed on the burner, that it was taken into consideration, thus generating security concerns in the minds of the members of the house and

it was for those reasons that engendered the non-confirmation of the nominee.
In arriving at its conclusion that there was no basis for which the respondents refusal to confirm the nominee as the State Chief Judge was due to her place of origin, the lower Court from pages 136 – 137 alluded to having carefully examined the exhibits variously submitted to the conclusion that at nowhere can it be said that the withdrawal of confirmation of the nominee can be said to have been based on the issue of her place of origin. It appears obvious to me that the lower Court before reaching its decision carefully analysed the exhibits placed before it. The reasoning of the Court cannot be easily faulted in that regard. I must state that the intention of what is borne in a document can only be understood given its literal and simple grammatical meaning without the importation of any subterranean meaning. See Animashaun & Anor vs. Ogundimu & Ors (2015) LPELR – 25979 (CA), Dangana vs. Usman (2013) 6NWLR (pt. 1349) 50 @ 80. Certainly, it is not to be opened to speculation or guesswork as to its contents. If therefore the reasons for the failure to

confirm the nominee are to be sought, Exhibit CRS 1, provided the reasons which were identified by the lower Court at page 137 of the record thus:
“A careful scrutiny of the said Exhibit CRS 1 discloses that what the members of the State House of Assembly considered in reaching their resolution for withholding the confirmation of Justice Akon Ikpeme was the allegation of security situation that such appointment/confirmation will hold for the State. And also that throughout the period of her acting appointment, Her Lordship was more concerned about the politics surrounding her confirmation and other irrelevant issues at the detriment of other official matters.”
The lower Court went further to state rightly in my view, that the House cannot be compelled to disclose the nature of the security concern envisaged by them. It seems curious to me, why the appellants who are aggrieved with the conduct of the State House of Assembly as a body, would seek to leverage their complaint founded upon a report of a sub-committee of the House, knowing fully that the house takes its decision at the plenary session of the House. A cursory examination of

paragraphs 6 – 14 of the Counter affidavit filed by the respondents was meant to represent what transpired leading to the non-conformation of the nominee. Indeed those paragraphs of the counter affidavit were not reacted upon by the appellants by means of a further or better affidavit and thereby deemed as being correct and requiring no further elaboration. See AG Nassarawa State vs. AG Plateau State (2012) 10 NWLR (pt. 1309) 419 (SC), Din vs. African Newspapers (1990) 3 NWLR (pt. 139) 392, Lawson Jack vs. The SPDC Nigeria Ltd (2002) 7 SC (pt. 11) 12.

I have been referred to the case of Onyemelukwe vs. WACC & Anor (1995) 4 NWLR (pt. 387) 44 @ 55 per Tobi JCA as he then was, which held that:
“Although, it is the general position of the law that depositions in affidavit not denied are deemed admitted, a Court of law is entitled to examine the veracity of such depositions in the light of the documents or documentary evidence in the case. Where a deposition in an affidavit is in conflict with a document or documentary evidence in the case, a Court of law is entitled to reject the deposition even though there is no counter affidavit. This is

based on the well established principle of law that a party cannot normally be allowed to lead evidence to contradict the contents of a document. And what is more, where a deposition in an affidavit in conflict with an exhibit annexed thereto a Court of law is entitled to reject the deposition”
Or further still as held in REAN & Ors vs. Aswani Textile Ltd (1992) 23 NSCC (pt. 1) 389, that a false deposition in an affidavit requires no response.
It has been brilliantly argued by the appellants counsel that paragraphs 8 and 9 of the counter affidavit tells a lie having contradicted the contents of Exhibits 2 and CRS1, and that respondents having admitted that they relied on Exhibit 2 in arriving at their resolution, the issue of denying the stated paragraphs on the authority of the cases cited does not arise. Further referring to Exhibit CRS1 which allegedly confirmed that Exhibit 2 was unwholesomely acted upon by the House of Assembly and that the State of origin of the nominee was considered a security issue, submitted that issues having been joined on the issue, there is no need for further response by the appellants.

I entirely agree with the state of the law expressed in the above cases cited. I however hold the view that the entirety of the counter affidavit needs to be read as a whole, so as to get or arrive at the import of the story it intends to tell. My understanding of paragraph 8 of the counter affidavit does not deny but rather admits that the two reports from the House committee on Judiciary tabled before the House in its plenary on the 2nd day of March, 2020 was considered and jettisoned; and that the House proceeded to vote on the issue of the confirmation or non confirmation of the nominee. That it was only after the voice vote that the house resolved to reject the confirmation of the nominee as the Chief Judge of the State as shown by Exhibit CRS 1 attached thereto. I do not in the circumstance see the falsity in the depositions referred to by the appellants. That being so, the two cases of Onyemelukwe vs. WACC & Anor (supra) and REAN & Ors vs. Aswani Textile Ltd (supra) cited and relied upon by the appellants remain inapplicable, and the situation remains that the paragraphs under consideration remained undenied and thereby deemed admitted. The case of Onyemelukwe vs. WACC & Anor (supra)

supports this position.
Was the lower Court right in relying on Exhibit CRS 1, the letter from the clerk of the House of Assembly, conveying the resolution of the House to the Secretary to the State Government as against the recommendations of the committee on Judiciary as well as the proceedings of the House on the matter. I am positive that the lower Court rightly relied on the letter conveying the decision of the House to the Government that sought for the confirmation or non-confirmation of the nominee as stipulated by the provisions of Section 271 (1) of the Constitution of the Federal Republic of Nigeria 1999.
Exhibits 1 and 2 as contended are meant for the consumption of the House of Assembly that set it up in the first place. The two conflicting reports having been laid before the house, deliberated upon and jettisoned, and the house proceeding to vote on whether to confirm or not, as delivered through Exhibit CRS 1, I fail to agree with the argument by the appellants that respondents had the extra duty of forwarding the proceedings of the house to the Government, nor do I agree that the burden of proving that the

nominee was treated in contravention of the provisions of Section 46 (1) of the CFRN 1999 and 42 (1) of the same Constitution should shift to the respondents. In any case, the judicial powers vested in the Courts do not entitle them to interfere in the internal affair of the legislative house(s) including the way they conduct their business. See Senate of the National Assembly vs. Tony Momoh (1983) 4 NCLR 269; also reported in 1962 – 2001 I LLRN 232. Moreover, it is not for the Court or anybody else to construe the motives or otherwise which influences the legislature in the performance of its onerous duties. See FRN vs. Chief Adebiyi Olafisoye (2004 – 2007) 3 LLRN 1011; Uwaifo vs. Attorney General of Bendel State (1982) 7 SC 124. My Lords, if the appellants as applicants are desirous of putting forward to the lower Court the fact that the nominee was discriminated against, must proceed to lay before the Court all available evidence in that regard. It is hollow to expect the respondents to prove their case for them on the established legal position that appellants having asserted, must prove their assertion. Section 167 (d) is therefore

inapplicable in the circumstance. It is left for the appellants as applicants who hold the opinion that the votes and the proceedings of the House of Assembly on the day in question being the 2nd of March, 2020 being relevant to their case seeks to put the same before the Court. Having failed to do so, the lower Court rightly relied on Exhibit CRS 1, in arriving at the just conclusion that the nominee’s fundamental right against discrimination due to her place of origin was not breached in the process of her confirmation or non-confirmation by the Cross River State House of Assembly.
The totality of the question is as rightly concluded by the trial Court that appellants having asserted that the respondents breached the fundamental right of the Hon. Justice Akon Ikpeme, must and bears the evidential burden of laying credible, cogent and believable proof to back up their claim. The lower Court was therefore right in holding that the applicants having failed to do so, their application was rightly dismissed as lacking in merit.

Having carefully analysed all the submissions of the learned senior counsel for the appellants, and studied the record

of appeal, including the exhibits agitated upon, I also fail to see any merit in the appeal and therefore dismiss the same.

My Lords, instances of senior Judges being by passed by their junior colleagues in the appointment of Chief Judges in a number of states, citing different reasons has been on the rise. It is unfortunate that the decision of the National Judicial Council on the issue of appointment of a substantive Chief Judge for a State is further subjected to the scrutiny, whims and caprices of the Houses of Assembly, who in most cases are guided by political and other considerations/motives, all in the guise of proceeding under the provisions of Section 271 (1) of the Constitution. This constitutional provision in my humble view needs to be revisited so as to give valid and desirable powers to the judiciary in taking effective decisions on the appointment of all cadre of Judges and Justices without such decisions on the being circumvented by the other arms of Government.
The appeal is dismissed. No order as to costs.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in advance the judgment delivered by my learned

brother HAMMA AKAWU BARKA, JCA.

My learned brother has brilliantly and painstakingly dealt with the issues nominated for determination in this appeal.

The lack of confirmation or non-confirmation of Hon. Justice Akon Ikpeme as the substantive Chief Judge of Cross River State by the Cross River State House of Assembly cannot by any stretch of imagination be described as discrimination and or in violation of the provision of Section 42 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).

For this and the detailed reasons contained in the lead judgment of my learned brother Barka, JCA, I also dismiss the appeal.
No order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had a preview of the judgment just delivered by my learned brother Hamma A. Barka, JCA. I agree entirely with the reasons in arriving at the conclusion that the appeal is unmeritorious and should be dismissed.

I too dismiss the appeal and abide by all the consequential orders.

Appearances:

Chief Ferdinand Oshioke Orbih, SAN, with him, Daniel Kip Esq. For Appellant(s)

Tanko Ashang (AG) with him, Ikoi E. Ikona, Director Civil Appeals, Cross River State For Respondent(s)