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Court of Appeal of Nigeria

MR. MARTIN MAIKANO NTUNG & ORS v. OLIVER D. LONGKWANG & ORS (2018)

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  1. MARTIN MAIKANO NTUNG & ORS v. OLIVER D. LONGKWANG & ORS

(2018)LCN/11736(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 20th day of June, 2018

CA/J/105/2009

RATIO

FAILURE TO CANVASS RIGHT

The law is that where a party fails to canvass a right given to it by law and chooses to abide by and acquiesce by the decision of a trial Court, there ends the matter. It was on the strength of this principle that the Supreme Court held that it is the party who was not served with a Court process, where service is required, that can raise the issue and seek to have the order made against him nullified, and not a party that was duly served  per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

LIMITATION LAW

Limitation law thus concerns the procedural jurisdiction of a trial Court and not its substantive jurisdiction, and, being an issue of procedural jurisdiction, it must be raised by a party entitled to rely on it in his pleadings and that where it is not so raised, the party will be deemed by the simple rules of pleadings to have waived whatever rights he possesses thereon per HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

JUSTICES

ADAMU JAURO Justice of The Court of Appeal of Nigeria

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

  1. MR. MARTIN MAIKANO NTUNG – BARDEN NAMU
    2. MISKOM (ALH.) IBRAHIM DANJUMA – KANGLU (DANURAM) OF NAMU
    3. MISKOM (ALH.) MAIMAKO – KANALONG (DANBURAM) OF NAMU
    4. MISKOM (ALH.) ALIYU U. SANDA – SUMA (JARMAI) OF NAMU
    5. HON. JIKYEN LINUS NJIN – CHAIRMAN, NAMU CHIEFDOM COMMUNITY
    6. MALLAM SALE I. GAYAM – SECRETARY, NAMU CHIEFDOM COMMUNITY
    (for themselves and on behalf of the indigenous Goemai community of Namu) Appellant(s)

AND

  1. OLIVER D. LONGKWANG – PRESIDENT PAN DEVELOPMENT ASSOCIATION
    (FOR HIMSELF AND ON BEHALF OF THE PEOPLE OF THE PAN COMMUNITY OF NAMU)
    2. THE EXECUTIVE GOVERNOR OF PLATEAU STATE
    3. THE ATTORNEY GENERAL OF PLATEAU STATE
    4. PLATEAU STATE GOVERNMENT
    5. HONORABLE JUSTICE C. A. R. MOMOH
    (Chairman, Judicial Commission of Inquiry into the Conflict in Namu Town) for himself and as representing the members of the Judicial Commission of Inquiry) Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): 

This appeal is against the judgment of the High Court of Plateau State in Suit No PLD/J286/2006 delivered by Honorable Justice Y. G. Dakwak on the 17th of October 2008.

The first Respondents, as claimants, commenced the action in the lower Court against the second to the fifth Respondents and the Appellants as the first to the tenth defendants. The facts leading up to the action were that Plateau State Government created development areas in the State and one of which was Namu Development Area with headquarters in Namu. Conflicts arose between the two main tribes, Goemai Community and Koffyar Community, over the use of the name Namu for the Development Area and the conflicts turned violent and in the course of which lives were lost. An administrative panel was set up by the State Government to look into the crises and the administrative panel recommended the setting up of Judicial Commission of Inquiry into the crises. The second Respondent thereupon constituted a Judicial Inquiry with the fifth Respondent as Chairman to (i) investigate the immediate and remote causes of the conflict; (ii) establish the ownership of Namu from historical data; (iii) establish the extent of damage to properties and loss of lives (if any); (iv) identify persons or group of persons responsible for the conflict; and (v) suggest or recommend ways to enhance permanent peace in the area.

The Judicial Commission of Inquiry received twenty-one memoranda, took evidence from thirty-nine witnesses and in the course of which fifty-six exhibits was tendered in a proceeding which commenced on the 17th of January, 2006 and closed on the 14th of February, 2006 and it visited the locus in quo on the 9th of February, 2006. In March, 2006, the Judicial Commission of Inquiry submitted its report to the second and third Respondents wherein it made a finding, amongst others, that the ownership of Namu resided in the Goemai Community, the Appellants. In May, 2006, the Plateau State Government, the fourth Respondent issued the Executive Summary of the Government White Paper on the Report of the Judicial Commission of Inquiry and wherein it accepted the finding   of the Judicial Commission of Inquiry that the ownership of Namu resided in the Goemai Community. The first Respondents were dissatisfied with this finding of the Judicial Commission of Inquiry and its acceptance by the second to the fourth Respondents and they commenced an action on the 10th of July, 2006 against the second to the fifth Respondents as the first to the fourth defendants. The Appellants applied to be joined as parties and they were joined as the fifth to the tenth defendants.

By an amended originating summons dated and filed on the 17th of November, 2006, the first Respondents sought for the determination of the following questions:
i. Is a Judicial Commission of Inquiry established by the second Respondent under the Commission of Inquiry Law, Cap 25, Laws of Northern Nigeria 1963 one of the Courts created or recognized by the 1999 Constitution and the Land Use Act and empowered to determine proceedings/questions of ownership in land
ii. In the light of the provisions of Sections 6 (2) and (6) of the 1999 Constitution and Sections 39 and 41 of the Land Use Act, can the Executive Governor of Plateau State refer the question of the ownership of Namu to the Judicial Commission of Inquiry, established by him, under the Chairmanship of the fifth Respondent for determination.
iii. Is the term of reference No (ii), to wit: to establish the ownership of Namu, not an infraction of the judicial powers conferred on the Courts by the Land Use Act and the Constitution of the Federal Republic of Nigeria, and therefore ultra vires the powers of the Executive Governor of Plateau State and the Commission headed by the fifth Respondent.
iv. Having regard to Sections 6 (2) and (6) and 43 of the 1999 Constitution and Sections 39 and 41 of the Land Use Act, are the verdict and the finding of the fifth Respondents Commission, that Namu is a Gamai Town, not a violation of the judicial power vested in the High Court, or the Area Courts of Plateau State.
v. Having regard to the principles and provisions of the Land Use Act, whether the second Respondent has powers to set up the Commission of Inquiry under the Chairmanship of the fifth Respondent with a term of reference: to establish the ownership of Namu.
vi. Whether the reports of the fifth Respondents Judicial Commission of Inquiry and the second to the fourth Respondents views (White Paper) are an infraction of the first Respondents right to fair hearing before a competent Court and Section 36 of the 1999 Constitution.

If the answers to questions ii, iii, iv and vi are in the affirmative and questions i and v above are in the negative, the first Respondents sought the following reliefs:
a. A declaration that the Judicial Commission of Inquiry into the conflict in Namu under the Chairmanship of the fifth Respondent is not a Court or institution recognized by the Land Use Act and the Constitution for the determination of questions of ownership of land.
b. A declaration that the Constitution of the Judicial Commission of Inquiry under the Chairmanship of the fifth Respondent with a term of reference to establish the ownership of Namu is ultra vires, null and void and of no effect whatsoever, having regards to the provisions of the Land Use Act and the 1999 Constitution of the Federal Republic of Nigeria.
c. A declaration that the Report (particularly the findings and verdict) of the fifth Respondents Judicial Commission of Inquiry and the second to the fourth Respondents acceptance of the finding that Namu is a Gamai Town is ultra vires the powers of the second to the fifth Respondents and is an infraction of the powers conferred on the High Court and Area Court.
d. A declaration that second Respondent has no power to refer the question of the ownership of Namu to the Judicial Commission of Inquiry under the Chairmanship of the fifth Respondent.
e. An order setting aside the Term of Reference No 2 of the instrument constituting the fifth Respondents Judicial Commission of Inquiry into the ownership of Namu Town, the findings and verdict of the fifth Respondents Commission and the second to the fourth Respondents White Paper, particularly Chapter 3, Pages 22 to 86 thereof on the ownership of Namu.

  1. An order of perpetual injunction restraining the second to the fourth Respondents, their agents, servants and privies from acting on the Report or finding of the fifth Respondents Judicial Commission of Inquiry and the second to the fourth Respondents White Paper, particularly Chapter 3, Pages 22 to 86 of the Report of the fifth Respondents Judicial Commission of Inquiry.
    g. A declaration that the decisions and views of the second to the fourth Respondents on the Report of the fifth Respondents Judicial Commission of Inquiry as it relates to Term of Reference No 2 is a breach of the first Respondents right to fair hearing.

The originating summons was supported by a twenty-six-paragraph affidavit of facts and by a twenty-eight-paragraph verifying affidavit and to which were attached exhibits. The second to the fifth Respondents opposed the claims of the first Respondents and they filed a counter affidavit in response. The Appellants also opposed the claims of the first Respondents and they filed a counter affidavit as well as a notice of preliminary objection challenging the jurisdiction of the lower Court to hear the matter on the grounds that the first Respondents had no locus standi and lack of reasonable cause of action. The lower Court took arguments on the preliminary objection along with those on the originating summons together and it, in a considered judgment, dismissed the preliminary objection and granted the claims of the first Respondents.

The Appellants were dissatisfied with the judgment and they caused their Counsel to file a notice of appeal containing ten grounds of appeal against it on the 13th of January, 2009. The notice of appeal was subsequently amended and the Appellants filed an amended notice of appeal dated the 16th of March, 2018 on the 19th of March, 2018. In arguing the appeal before the Court, Counsel to the Appellants filed an amended brief of arguments dated the 16th of March, 2018 on the 19th of March, 2018. On their part, Counsel to the first Respondents filed a brief of arguments dated the 8th of March, 2018 on the 13th of March, 2018 and the brief of arguments was deemed proper by this Court on the 20th of March, 2018. Counsel to the Appellants filed a reply brief of arguments to the first Respondents brief of arguments and it was dated the 16th of March, 2018, filed on the 19th of March, 2018 and deemed proper by this Court on the 20th of March, 2018. The second to the fifth Respondents did not file a brief of arguments to contest the appeal. At the hearing of the appeal, Counsel to the Appellants and the first Respondents relied on and adopted the arguments in their respective briefs of arguments.

Counsel to the Appellants distilled six issues for determination in the appeal and these were:
1. Whether the lower Court was right in its view that the second Respondent, Governor of Plateau State, has no powers to set up the Commission of Inquiry under Section 2 (1) of the Commissions of Inquiry Law Cap 25, Laws of Northern Nigeria 1963 with the Term of Reference to wit: to determine the ownership of Namu from historical data.
2. Whether the learned trial Judge was right to have held that the first Respondents had locus standi to maintain this suit.
3. Whether the lower Court was right in its decision that the suit was properly instituted in a representative capacity by the first Respondents.
4. Whether Pan Community of Namu, regard being had to Exhibits B and C, could be represented, as was held by the learned trial Judge.
5. Was the learned trial Judge right in his view that the first Respondents suit could not be met with the defence of estoppel by conduct
6. Whether the learned trial Judge was not wrong when he held that the first Respondents suit was not statute barred.

In arguing the first issue for determination, Counsel to the Appellants referred to the provisions of Section 2 of the Commissions of Inquiry Law and stated that it empowers the Governor to appoint and authorize a Commission to hold an inquiry into (a) the conduct of any public officer in the public service of Northern Nigeria; or (ii) the conduct of any chief; or (iii) the management of any department of the public service or (iv) the conduct of any local institution; or (v) any matter in respect of which in his opinion an inquiry would be for the public welfare. Counsel stated that the power conferred on the Governor by the above provision is as wide as it is subjective in nature and intent and that it is a power to be employed for public welfare in the opinion of the Governor and he referred to the cases of The Governor of Kaduna State Vs Lawal (1982) All NLR (Reprint) 160, Da Kabirikim Vs Emefor (2009) 14 NWLR (Pt 1162) 620. Counsel stated that the powers are amplified by Section 22 of the Law and Section 4 (7) of the Constitution of the Federal Republic of Nigeria and that the combined effect of these provisions is that a Governor can, through the instrumentality of a Commission of Inquiry, inquire into any matter including ownership of land, provided that it is for the purpose of peace, order and good government of the State or of any part thereof.

Counsel recalled the facts that led to the conflict in Namu over the naming of the Namu Development Area with headquarters in Namu and stated that it was both sides to the conflict that called on the second Respondent to determine the ownership of Namu and the second item on the Terms of Reference of the fifth Respondent was a call for the determination of the original settlers of Namu land.

Counsel stated that the Commission of Inquiry Law is a valid existing law by virtue of Section 315 of the 1999 Constitution and applicable today as a Law enacted by the Plateau State House of Assembly and he referred to the provisions of Section 4 (6) of the 1999 Constitution. Counsel referred to the case of Da Kabirikim Vs Emefor supra which he said was on all fours with the facts of this case and wherein the Military Governor of Plateau State set up a Judicial Commission of Inquiry to, amongst other things, determine the ownership of Kabong, Tudun Wada and Dong and Counsel quoted extensively from case; a Supreme Court decision. Counsel stated that there is nothing in the provisions of the Constitution and the Land Use Act which precludes a Commission of Inquiry from inquiring into ownership of land and he referred to the case of Adeyemi Vs A. G. Oyo State (1984) 15 NSCC 397.

Counsel stated that the framers of the Constitution and the Land Use Act had in contemplation the establishment of other Courts in relation to land matters and that the Constitution only requires that the Law establishing such other Courts should ensure its fairness, independence and impartiality and that Sections 6 (4) (a) and (5) (k) of the Constitution recognizes Commission of Inquiry established by the Law of a State. Counsel referred to the provisions of Section 41 of the Land Use Act and stated that the phrase other Courts used therein covers and includes Commissions of Inquiry and tribunals as may be set up under the Law of a State House of Assembly and that the judicial powers vested in the Courts by Section 6 of the Constitution cannot be interpreted to exclude the establishments of other tribunals and Commissions of Inquiry, as in the instant case, and he again placed reliance on the case of Da Kabirikim Vs Emefor supra.

Counsel stated that item 2 on the Terms of Reference of the fifth Respondent was outside the purview of the right created or mentioned in Section 39 and 41 of the Land Use Act and it referred to the tracing of the origin of Namu Town while the provisions of the Land Use Act refer to matters relating to title to land relating to statutory or customary rights of occupancy. Counsel stated that the Report of the Commission of Inquiry is not the type of judgment referred to by Section 40 of the Land Use Act and that neither the Report nor the White Paper issued thereupon violated either the provisions of the Constitution or of the Land Use Act. Counsel stated that item 2 on the Terms of Reference did not derogate from the jurisdiction of the High Court and the Area Courts to determine matters pertaining to statutory right of occupancy or customary right of occupancy and did not violate either the provisions of the Constitution or of the Land Use Act and he referred to the cases of Adeyemi Vs A. G. Oyo State supra and Ezekwesili Vs Onwuagbu (1998) 3 NWLR (Pt 541) 245. Counsel stated that the right of the first Respondents to approach the High Court or the Area Court for appropriate remedy where the issue of title to statutory or customary right of occupancy arises is not extinguished or abolished by the Report of the fifth Respondent on historical origin of the town of Namu. Counsel urged the Court to resolve the first issue for determination in favour of the Appellants.

On the second issue for determination, on the locus standi of the first Respondents, Counsel defined the term locus standi, highlighted its incidences and its importance in a civil litigation and stated that it can only be exercised by a person who has complaints touching on his civil rights and obligations and he cited several case law authorities. Counsel stated that where a person institutes an action to claim a relief which on the facts of the case is enforceable by another, then the former will be held to lack locus standi because it is the person in whom is vested the aggregate of the enforceable rights in a cause that has the standing to sue and he referred to the cases of Oloriode Vs Oyebi (1984) 1 SCNLR 390 and Egolum Vs Obasanjo (1999) 7 NWLR (Pt 611) 423, amongst others. Counsel stated that, in the instant case, a community reading of the processes filed by the first Respondents shows that the action was commenced by the named first Respondent on behalf of Pan Community of Namu who stated that they were aggrieved by the Report of the fifth Respondent and the White Paper issued thereupon by the second to fourth Respondents.

Counsel stated that in order to be vested with locus standi in a representative action, it is necessary that the person representing others and those represented should have the same interest and common grievance and that the relief sought in the claim is in its nature beneficial to all of them and he referred to the cases of Nsima Vs Nanji (1961) NLR 441, Amajideogu Vs Ononau (1988) 2 NWLR (Pt 78) 614. Counsel stated that the named first Respondent and the Pan Community of Namu which he represents did not disclose their common interest and common grievance as they did not assert that they have an interest in the matter of ownership of Namu and did not claim any relief that the ownership of Nanu be declared in their favour. Counsel stated that the named first Respondent is an officer of Pan Development Association and the Association is not party to the suit and he made no claim in favour of the Association and that he is not a member of the Pan Community of Namu and cannot thus seek to enforce a right of action vested in the Pan Community.

Counsel referred to the case of Inakoju Vs Adeleke (2007) 4 NWLR (Pt 1025) 423 in asserting that where the locus standi of a plaintiff to commence an action is challenged, the onus is on him to prove it and he stated that the competence of the named first Respondent was challenged in the counter affidavit to the originating summons and that the assertion in the counter affidavit was not met by a further affidavit and that this meant that the named first Respondent admitted that he had no interest in the subject matter of the dispute and he referred to the cases of A. G. Ondo State Vs A. G. Ekiti State (2001) 17 NWLR (Pt 743) 706 and FRN Vs Abacha (2008) 5 NWLR (Pt 1081) 643, amongst others. Counsel stated that the lower Court was thus in error to have held that the named first Respondent had the requisite locus standi to prosecute the suit and he urged the Court to resolve the second issue for determination in favour of the Appellants.

Counsel argued the third and fourth issues for determination together and they were on whether the suit was properly commenced in a representative capacity and whether Pan Community of Namu could be represented. Counsel restated the general principles of law on proper parties being before the Court and its connection to the jurisdiction of the Court and he referred to some case law authorities. Counsel also referred to the essential requirements for a suit to be commenced in a representative capacity and that the first Respondents, Pan Community of Namu, was not one of the contending parties on the ownership of Namu that participated in the proceedings before the fifth Respondent and that the contending parties were Geomai/Ankwe tribe of Namu and the Pan or Kofyar Group and that the fifth Respondent found as a fact that Pan Community of Namu was non-existing.

Counsel stated that this finding of the fifth Respondent was accepted in the White Paper issued by the second to the fourth Respondents and it has not been challenged and thus remained valid and subsisting. Counsel stated that the named first Respondent is not a member of the so called Pan Community of Namu, but an officer of Pan Development Association, which is not a party in the suit, and he cannot thus commence this suit in a representative capacity for himself and on behalf of the Pan Community of Namu and no member of the Pan Community of Namu known to and recognized by law authorized the institution of the action on their behalf. Counsel urged the Court to thus resolve the third and fourth issues for determination in favour of the Appellants.

With regards to the fifth issue for determination, on estoppel by conduct, Counsel defined estoppel and stated the circumstances when estoppel by conduct is said the arise as laid down in the cases of Iga Vs Amakiri (1976) 11 SC 1 and Olalekan Vs Wema Bank Plc (2006) 13 NWLR (Pt 998) 617. Counsel stated that the circumstances that support the evoking of the concept of estoppel by conduct against the first Respondents were (i) that at a meeting held on the 25th of November, 2005 presided over by the second Respondent to look into the conflict that erupted, both parties were in attendance and they willingly and voluntarily agreed that the matter be referred to and determined by a Commission of Inquiry; (ii) that all the interested parties actively participated in the proceedings before the fifth Respondent by submitting memoranda, calling witnesses and presenting both oral and documentary evidence and which led to visit to the locus in quo; (iii) that the parties were represented by Counsel of choice at the hearings; (iv) that the parties were all accorded fair hearing; (v) none of the parties challenged the competence of the fifth Respondent to determine the issue of ownership of Namu through historical data; (vi) all the parties agreed to be bound by the outcome of the inquiry and they urged the second Respondent to implement it; (vii) the first Respondents were aware of the establishment, the Terms of Reference and the proceedings of the fifth Respondent and chose not to participate therein.

Counsel stated that with this state of affairs, the first Respondents were clearly caught by the doctrine of estoppel and that it was too late in the day for them to complain and he referred to the cases of Obodo Vs Ogba (1987) 2 NWLR (Pt 54) 1 and Bello Vs Fayose (1999) 11 NWLR (Pt 627) 510. Counsel stated that they specifically raised the defence in their counter affidavit and that the first Respondents did not deny of controvert same and that the law is they will be deemed to have admitted the averment thereon and he referred to the case of A. G. Abia State Vs A. G. Federation (2005) 12 NWLR (Pt 940) 452. Counsel stated the blanket reliance on the interpretation of the provisions of the Constitution and of the Land Use Act to defeat the application of the doctrine of estoppel by the lower Court was erroneous in the circumstances because rights being claimed by the first Respondents were personal rights and not public rights benefitting the general public. Counsel stated that the lower Court was thus in error when it refused the defence of estoppel canvassed by the Appellants and he urged the Court to resolve the fifth issue for determination in favour of the Appellants.

On the sixth issue for determination, on statute bar, Counsel defined the phrase cause of action and when it is deemed to have occurred or to be completed and what a trial Court should look at in determining the date of accrual of a cause of action and he referred to case law authorities thereon. Counsel stated that the important milestones in this case were the Instrument constituting the Judicial Commission of Inquiry which was issued on the 30th of December, 2005, the submission of the Report of the Commission which occurred in the month of March 2006, the issuance of the White Paper on the Report which took place in May 2006, and the commencement of this case in the lower Court on the 10th of July, 2006. Counsel stated that the reliefs claimed by the first Respondents defined their cause of action and their reliefs challenged the composition, establishment of the Commission and its Terms of Reference as well the Report of the Commission and the White Paper issued thereon.

Counsel stated that each of the milestones constituted a cause of action and that time began to run from the time each of them came into existence and that the lower Court was in error when it found that the cause of action accrued only upon the issuance of the White Paper on the Report in May 2006 and he referred to the case of A. G. Lagos State Vs Eko Hotels Ltd (2006) 18 NWLR (Pt 1011) 378. Counsel stated that the reliefs sought in respect of the first two milestones, Instrument of setting up and the Report of the Commission, were not brought within the time provided for the commencement of the action and they were thus statute barred. Counsel conceded that the case in respect of the third milestone, the White Paper, was brought within time, but stated that the case was predicated on the case of the first Respondents against the first and second milestones, and since the case against these milestones was caught by the statute of limitation, it meant that the case against the White Paper becomes irrelevant to the substance and life of the suit. Counsel urged the Court to resolve the issue for determination in favour of the Appellants.

Counsel concluded his arguments by praying the Court to find merits in the appeal and to allow the appeal and set aside the judgment of the lower Court.

On his part, Counsel to the first Respondents formulated two issues for determination in the appeal and these were:
(i) Whether the lower Court was right when in dismissing the Appellants notice of preliminary objection, it found that the first Respondents had locus standi to challenge the decisions of the second to the fifth Respondents and that the first Respondents suit was neither statute barred nor caught by a plea of estoppel.
(ii) Whether the lower Court was right in holding that it was wrong for the second Respondent to have referred questions of ownership of Namu to the fifth Respondent, not being a Court created and recognized by the Constitution.

In arguing the first issue for determination, Counsel stated the Appellants filed a preliminary objection in the lower Court challenging the action of the first Respondents on the grounds of lack of locus standi, plea of statute of limitation, the Public Officers Protection Act, and estoppel by conduct and that the lower Court considered each of the grounds and dismissed the preliminary objection. On locus standi, Counsel stated that the first Respondents asserted that, by the findings in the Report of the fifth Respondent and the acceptance of same in the White Paper issued by the second to the fourth Respondents, their communal right to ownership of the town of Namu was infringed and that they have been demoted to the status of tenants in a place they had always exercised the rights and status of landlords and overlords and that the Appellants have been placed as the landlords or overlords and they must compulsorily now trace their root of title to land in Namu to the Appellants who were declared the original grantor. Counsel stated that these are grievances that entitles the first Respondents to sue either personally or as a community in a representative action for the protection of their rights and he referred to the case of Pacers Ltd Vs M. V. Dancing Sister (2012) 49 NSCQR 284.

Counsel stated that the named first Respondent commenced the action in the lower Court suing for himself and on behalf of the People of the Pan Community of Namu to denote that it was a representative action and that to show their locus standi, the named first Respondent and the people he represents are only required to show by their statement of claim that they are connected to the subject matter of the action and he referred to the case of Adetono Vs Zenith Bank (2011) 48 NSCQR 604. Counsel stated that the first Respondents went further than this to show that they were affected by the contents of the Report and White Paper which recognized the Appellants as the owners of Namu, in breach of their right to fair hearing, and these are what they challenged by the questions they framed for determination on the originating summons in the lower Court. Counsel referred to the case of Adesokan Vs Adegorolu (1997) 3 NWLR (Pt 493) 261 in asserting that in an action commenced by originating summons only the affidavits in support will be looked at in determining the existence of locus standi. Counsel referred to the contents of the affidavits on the originating summons and stated that the named first Respondent disclosed that he is a representative of the Pan people living in Namu and that the Pan Development Association was the umbrella body for people of Koffyar stock living in Namu and they are contenders to the ownership of Namu, and that this fact was acknowledged in the Report.

Counsel stated that the first Respondents asserted that they were member or natives of Pan in Namu and it was their case that as individuals they have an interest in the ownership of Namu and that the suit was filed in a representative capacity for the members of the Pan Community in Namu. Counsel stated that the Appellants have not contended that the first Respondents are not natives of Pan in Namu and/or that Pan as a community resides in Namu and the contention of the Appellants that the people represented by the name first Respondent were not parties in the proceedings before the fifth Respondent was in tandem with their own case and that was on the basis that they were not made parties before the fifth Respondent that they argued that no findings can be made against the Pan Community without affording them the opportunity of being heard. Counsel stated that the case of the first Respondents was that they were deprived of the claim to the ownership of Namu without being heard and that by publishing the White Paper which recognized the Appellants as the owners of Namu, the third to the fifth Respondents adjudged the Appellants as the owners of Namu and reduced the Pan Community to tenants.

Counsel stated that the Appellants have not denied that the named first Respondent, as an individual, and the members of Pan Community, as a group, have sufficient interest in the ownership of Namu and that the ownership of the Town of Namu by the Gamai people was determined in the Report and in the White Paper, to the detriment of the first Respondents. Counsel referred to the case of Ladejobi Vs Oguntayo (2004) 18 NWLR (Pt 904) 149 where he said that the Supreme Court, per Pats-Acholonu, JSC, cautioned against placing unnecessary emphasis on locus standi and he stated that the lower Court was correct that the first Respondents had the requisite locus standi to commence the action in the lower Court. Counsel stated that the Appellants have not in any way faulted the reasoning of the lower Court on the locus standi of the first

Respondents and that all the questions raised by the Appellants on the issue were baseless and did not scratch the surface of the reasoning of the lower Court thereon.

Counsel stated that the contention of the Appellants that the first Respondents were not existing persons was erroneous and that the named first Respondent commenced the action in both his personal capacity and on behalf of the Pan Community and that the effect of a representative suit was long settled in the case of Okonji Vs Njokanma (1989) 4 NWLR (Pt 114) 161. Counsel stated that the first Respondents deposed on the originating summons that the natives of Koffyar are members of the Pan Development Association and are also known as the Pan Community and the members of the Pan Community living in Namu are identifiable and is limited to persons of the Koffyar stock as opposed to persons of the Gamai stock. Counsel urged the Court to resolve the issue of locus standi in favour of the first Respondents.

On the issue of statute bar, Counsel stated that the Appellants are not public officers and that as such the plea of statute bar predicated on the Public Officers Protection Act does not avail them and that the second to the fifth Respondents who were entitled to raise the plea did not do so. Counsel stated that the plea is a statutory protection afforded the second to the fifth Respondents by statute and that they are at liberty to waive it and that the Appellants cannot raise the plea for the benefit of the second to the fifth Respondents and he referred to the case of Ugwuanyi Vs NICON Insurance Plc (2004) 15 NWLR (Pt 897) 612. Counsel stated that going further and assuming that the Appellants could raise the plea, then the resolution of the issue will revolve around the question of when did the cause of action of the first Respondents arise Counsel stated that the position of the law is that the cause of action arose when the second to the fourth Respondents issued the White Paper accepting the recommendations of the fifth Respondent, and not before, and he referred to the cases of Cookey Vs Fombo (2005) 22 NSCQR 411 and MILAD, Ekiti State Vs Aladeyelu (2007) 14 NWLR (Pt 1055) 619.

Counsel stated that the White Paper was published in May, 2006 and that this was when the time of the first Respondents to commence the action began to run and that, as conceded by Counsel to the Appellants, the action in the lower Court was commenced within three months of the publication of the White Paper and is thus not caught the Public Officers Protection Act. Counsel also argued that the Public Officers Protection Act is not a statute of general application and that its application is limited to only Lagos State and it is not applicable in Plateau State and the fourth Respondent did not domesticate the Act in the State. Counsel stated that the Limitation Law promulgated by the fourth Respondent was the Plateau State Limitation Law, Edict No 16 of 1998 and Section 44 of which expressly made all other statutes of limitation in force in the State to cease application upon the commencement of the Law and that by the Various Edicts (Commencement Order) of 1998 issued by the third Respondent, the Law commenced on the 1st of August 1998. Counsel urged the Court to find that the action was not statute barred.

On the issue of estoppel, Counsel stated that arguments of the Counsel to the Appellants amounted to approbating and reprobating because they asserted in one breadth that the first Respondents were not parties to the proceedings before the fifth Respondent and said in another breadth that they were estopped by conduct from challenging the Report because they were parties before the fifth Respondent. Counsel stated that a party to a litigation cannot be allowed chop and change position like that and he referred to the case of Akuneziri Vs Okenwa (2000) 15 NWLR (Pt 691) 526 where he said the Supreme Court deprecated such conduct. Counsel stated that, going forward, the entire case of the Appellants on the issue of estoppel was predicated on the assumption that the first Respondents participated in the proceedings before the fifth Respondent. Counsel stated that only parties to the proceedings can be guilty of estoppel and that the proceedings before the fifth Respondent, in the instant case, was a fact finding mission and the fifth Respondent was not limited as to how it was to gather its facts, so long as the facts were based on historical data and that there were no parties in the proceedings, rather there were witnesses who gave evidence to assist the first Respondent in conducting the inquiry.

Counsel stated that estoppel cannot operate to bar the first Respondents from challenging the constitutionality of the powers of the second to the fifth Respondents to issue the Term of Reference, the Report and the White Paper and this is because parties cannot by confer jurisdiction on a body and he referred to the case of Gbagariga Vs George (2005) 1 NWLR (Pt 953) 163. Counsel stated that the arguments of the Appellants that the first Respondents were parties to the memorandum of understanding that led to the setting up of the fifth Respondent and as such cannot be heard to complain about it cannot hold water because the memorandum of understanding was about the creation of Namu Development Area and not about Namu Town. Counsel noted that the Appellants predicated their arguments on estoppel on the facts that the first Respondents agreed to the reference to the fifth Respondent, participated in the proceedings before the fifth Respondent and did not challenge the competence of the fifth Respondent to determine the ownership of Namu and stated that these reasons were not enough to debar the first Respondents from challenging the jurisdiction and constitutionality of the proceedings of the fifth Respondent.

Counsel stated that the lower Court was right when it resolved the issue of estoppel against the Appellants and he urged the Court to affirm the decision of the lower Court on the point.
Counsel urged the Court to resolve the first issue for determination in favour of the first Respondents.

With regards to the second issue for determination, Counsel stated that it is settled law that the fifth Respondent, constituted under the Commissions of Inquiry Law of Northern Nigeria 1963, is not one of the Courts created, recognized or contemplated by the Constitution of the Federal Republic of Nigeria, as amended, and that the fifth Respondent was not also equivalent of a Court conferred with jurisdiction by the High Court Law of Northern Nigeria and it cannot thus exercise judicial powers of determination of disputes between the parties and he referred to the case of Amaechi Vs INEC (2008) 33 NSCQR 332. Counsel stated that therefore, the fifth Respondent cannot under Sections 39 and 41 of the Land Use Act determine questions of the ownership of land and that its findings on second item of its Term of Reference on the ownership of Namu and the acceptance of the findings by the second to fourth Respondents were ultra vires, and patently and latently inconsistent with the provisions of the 1999 Constitution and the Land Use Act.

Counsel stated that it is only the High Court created by the Constitution and the Area Courts or Customary Courts established by the Laws of the State that have jurisdiction to determine matters arising from and/or pertaining to the ownership of land in urban areas and non-urban areas and he referred to the case of Odetayo Vs Bamidele (2007) 17 NWLR (Pt 1062) 77. Counsel stated that the power of management of lands in Plateau State vested in the second Respondent by Section 1 of the Land Use Act did not abrogate vested or accrued interests in land and that a person’s claim to ownership of land is based on his entitlement to either a statutory or customary right of occupancy. Counsel stated that powers of the second Respondent is limited to holding the land in trust and does not include the determination of ownership of land, as this is a judicial function vested in the judiciary by Section 6 of the 1999 Constitution. Counsel stated that the second item of Term of Reference of the fifth Respondent, to establish the ownership of Namu from historical data requires a determination or decision on a dispute over the ownership of Namu land; a resolution of who between the parties is entitled to a declaration of title and he referred to the case of Dagaci of Dere Vs Dagaci of Ebwa (2001) 7 NWLR (Pt 712) 389.

Counsel stated that the jurisdictional powers of a Court are determined by reference to the subject matter of a suit and where, as in the instant case, the subject matter was land, it is the Land Use Act that is the applicable legislation for determining the question. Counsel stated that it was agreed that the contending claims over the ownership of Namu was by two main parties, the Appellants, the Geomai group, and the first Respondent, the Pan group, and that the territory called Namu is a land mass and that a determination of ownership of Namu meant a determination of the ownership of the land mass called Namu and he referred to the definition of the word ownership in the cases of Fagunwa Vs Adibi (2004) 17 NWLR (Pt 903) 544 and Abraham Vs Olorunfemi (1991) 1 NWLR (Pt 165) 53.

Counsel stated that, in line with the terms of reference, the fifth Respondent identified the contending parties as the Appellants and the first Respondents and proceeded to carry out a judicial determination of the ownership of Namu between the parties and found that the version of traditional history of the Appellants was more credible and it made a finding on the ownership of Namu in favour of the Appellants, and that this was tantamount a declaration of title in favour of the Appellants.

Counsel stated that what took place before the fifth Respondent qualified as proceedings under the definition in Sections 39 and 41 of the Land Use Act, and he also referred to the definition of the word proceedings in the case of Mairo Vs Laushi (1993) 4 NWLR (Pt 288) 423, amongst others, and stated that the fifth Respondent carried out a judicial determination of the ownership of Namu land, an act it had no iota of jurisdiction to do. Counsel stated that the referral of the question of the ownership of Namu land to the fifth Respondent by the second Respondent was wrongful and unconstitutional as it is the High Courts and the Area and Customary Courts that possess exclusive jurisdiction to determine a question of ownership of land, and no other body can do so. Counsel stated that the reference made to the case of Kabirim Kim Vs Emefor (2009) 14 NWLR (Pt 1162) 602 by the Counsel to the Appellants was inapposite because the Supreme Court reiterated the constitutionally conferred unlimited jurisdiction of the High Court to determine matters of land ownership and that the issue involved in the matter was not on ownership of land, but on ownership of land forming part of an Administrative area where the wards or villages fall into; that the Commission of Inquiry in the case was set up for the Administrative purpose of knowing the area that fell with the disputed districts.

Counsel stated that it is not in dispute that the second Respondent has powers under the Commission of Inquiry Law to set up a Commission of Inquiry, but that the Commission of Inquiry must be set up to inquire into matters that the fourth Respondent has powers to legislate upon and that the fourth Respondent has no power to legislate on matters relating to ownership of land and the second Respondent cannot thus set a Commission of Inquiry to look into such a matter and he referred to the case of A.G. Lagos State Vs Eko Hotels Ltd (2006) 18 NWLR (Pt 1011) 378. Counsel stated that none of the parties who laid claim to the ownership of Namu sought for a relief before the fifth Respondent and that they were requested to appear before the Commission as witnesses and the fifth Respondent proceeded to make specific findings granting ownership of the Namu land to the Appellants, thus determining the civil rights and obligations of the first Respondent outside the recognized Court system and he referred to the cases of Babalola Vs Obaoku-Ote (2005) 8 NWLR (Pt 927) 386 and A.G. Rivers State Vs Ohochukwu (2004) 6 NWLR (Pt 869) 354.

Counsel re-emphasized that the fifth Respondent was not the same thing as a Court of law or its equivalent and he referred to the cases of Amaechi Vs INEC supra, Action Congress Vs INEC (2007) 12 NWLR (Pt 1048) 222 and Balogun Vs Ode (2007) 4 NWLR (Pt 1023) 1. Counsel stated that the fifth Respondent had no powers to make findings, as it did, into the ownership of Namu land and he urged this Court to resolve the second issue for determination in favour of the first Respondent.

Counsel concluded his arguments on the appeal by praying the Court to find no merit in the appeal and to dismiss same and affirm the judgment of the lower Court.
Reading through the records appeal, particularly the processes filed before the lower Court, the judgment of the lower Court and the notice of appeal, as well as the arguments contained in the respective briefs of arguments, there are two sets of issues for determination in this appeal, preliminary issues and substantive issue. The preliminary issues, challenging the competence of the action of the first Respondents before the lower Court, and these are the questions of locus standi and representative action, statute bar and estoppel by conduct  whether the lower Court was correct when it found that the action of the first Respondents was not caught or affected by any of these doctrines. The substantive issue of whether the lower Court was correct when it found that the first Respondents made out a credible case to sustain the reliefs they sought and thus entitled to judgment. The preliminary issues will be considered as the first issue for determination and the substantive issue will be considered as the second issue for determination. The issues will be considered seriatim.
Issue One  Preliminary Issues.
a. Locus Standi
In resolving this issue, it is pertinent to point out that the Terms of Reference of the fifth Respondent, the Report of findings of the fifth Respondent and the White Paper published by the second to the fourth Respondents on the Report of the fifth Respondent were Exhibits A, B and C respectively to the originating summons. Counsel to the Appellants contested the locus standi of the first Respondents on three grounds  (i) that the named first Respondent, described as the President of the Pan Development Association, did not disclose that he has a common interest with the Pam Community of Namu, on behalf of whom he sued, and he cannot thus enforce the right of action vested in the community; (ii) that there is nothing to suggest that Pan Community of Namu, represented by the named first Respondent, is synonymous with Pan or Koffyar Group and as such it is an unrecognized and a non-existent entity that cannot be represented in law; and (iii) that there is nothing showing that the named first Respondent, an officer of the Pan Development Association, was authorized by the Pan Community of Namu to sue of its behalf. Counsel to the first Respondents contested these grounds vehemently in his response.

The phrase locus standi in general parlance means a recognized position or standing. In law, it means a place of standing in Court or right to appear in Court. Locus standi or standing to sue is defined as the legal right of a party to an action to be heard in litigation before a Court of law or tribunal. The term entails the legal capacity of instituting, initiating or commencing an action in a competent Court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever. In other words, locus standi is the right of appearance in a Court of justice or before a legislative body on a given question  Dada Vs Ogunsanya (1992) 3 NWLR (Pt 232) 754, United Bank of Africa Plc Vs BTL Industries Ltd (2004) 18 NWLR (Pt 904) 180, Adetono Vs Zenith International Bank Plc (2011) 18 NWLR (Pt 1279) 627, Charles Vs Governor of Ondo State (2013) 2 NWLR (Pt 1338) 294. The doctrine of locus standi was developed to protect the Court from being used as a playground by professional litigants and busybodies who have no real stake or interest in the subject matter of the litigation they wish to pursue  Amah Vs Nwankwo (2007) 12 NWLR (Pt 1049) 552, Taiwo Vs Adegboro (2011) 11 NWLR (Pt 1259) 562.
The Courts have stated that a party seeking to establish locus standi must show (a) a legal or justifiable right; (b) sufficient or special interest adversely affected; and (c) a justifiable cause of action  Attorney General, Kaduna State Vs Hassan (1985) 2 NWLR (Pt 8) 483, Taiwo Vs Adegboro supra, Adekunle Vs Adelugba (2011) 16 NWLR (Pt 1272) 154, Charles Vs Governor of Ondo State (2013) 2 NWLR (Pt 1338) 294. In other words, for a person to have locus standi, he must show that his civil rights and obligations have been or are in danger of being infringed and that he has sufficient legal interest in seeking redress in a Court of law. In other words, there must be a nexus between the party and the disclosed cause of action concerning his rights or obligations

Senator Abraham Adesanya Vs The President of the Federal Republic of Nigeria (1981) 2 NCLR 358, Imade Vs Military Administrator, Edo State (2001) 6 NWLR (Pt 709) 478, Taiwo Vs Adegboro supra, Adetono Vs Zenith International Bank Plc supra. And a person is said to have interest in a thing when he has rights, advantages, duties, liabilities, losses or the like, connected with the thing, whether present or future, ascertained or potential provided that the connection, and in the case of potential rights and duties, the possibility, is not too remote  Imade Vs Military Administrator, Edo State supra, Adetono Vs Zenith International Bank Plc supra.

The tests for determining whether a person has special or sufficient interest in instituting an action are (i) whether the person could have been joined as a party to the suit if some other party had commenced the action; and (ii) whether the person will suffer some hardship or injury arising from the litigation if some other party instituted the action  K Line Inc Vs K R International (Nig) Ltd (1993) 5 NWLR (Pt 292) 159, Ilori Vs Benson (2000) 9 NWLR (Pt 673) 570, Anozia Vs Attorney General, Lagos State (2010) 15 NWLR (Pt 1216) 207.

It has been settled by a long line of cases that in determining the locus standi of a party, a trial Court must have regard to, and only to, the originating processes by which the action was commenced or the claim was made by that party, that is the writ of summons and the statement of claim or counterclaim, in an action commenced by a writ of summons, or originating summons or originating motion and the affidavit in support  Global Trans Oceanico SA Vs Free Enterprises Nigeria Ltd (2001) 5 NWLR (Pt 706) 426, United Bank of Africa Plc Vs BTL Industries Ltd supra, Amah Vs Nwankwo supra, Anozia Vs Attorney General, Lagos State supra, JFS Investment Ltd Vs Brawal Line Ltd (2010) 18 NWLR (Pt 1225) 495, Wilson Vs Okeke (2011) 3 NWLR (Pt 1235) 456, Taiwo Vs Adegboro supra, Adekunle Vs Adelugba supra, Adetono Vs Zenith International Bank Plc supra, Charles Vs Governor of Ondo State supra. Where documents are pleaded in the statement of claim and are frontloaded as documents to be relied upon at trial or attached to an affidavit in support as exhibits, as part of the originating processes, then such documents might also be looked at, as suggested by the Supreme Court in JFS Investment Ltd Vs Brawal Line Ltd supra. A trial Court cannot go outside the originating processes in determining the issue of locus standi of a claimant. It is also important to point out that in determining locus standi, the chances that the action may not succeed is completely irrelevant  Williams Vs Dawodu (1988) 4 NWLR (Pt 87) 189, Ejiwunmi Vs Costain (WA) Plc (1998) 12 NWLR (Pt 576) 149, Taiwo Vs Adegboro supra, Adetono Vs Zenith International Bank Plc supra.

In dealing with the issue of the locus standi of the first Respondents to commence and maintain the action, the lower Court, after reiterating the general principles, stated in the judgment thus:
From the affidavit in support of the originating summons, the plaintiffs by the para 7 thereby show they are suing in a representative capacity of Pan Community living in Namu, having been duly authorized. They have shown by the para 2 of the affidavit that the Pan Community is equally known as Pan Development Association. By para 22 of the affidavit is shown the plaintiff are affected by the decision of the Commission and White Paper. The plaintiffs have shown they are contesting the jurisdiction of the 1st defendant to set up the Commission of the 4th defendant, they are also contesting the jurisdiction of the 4th defendants Commission in determining the ownership of Namu. They are therefore contesting the Exhibits A, B, C which have affected their interest. From the facts in the affidavit, the plaintiffs have shown sufficient interest in the ownership of Namu to seek this Court to answer the questions they have raised. They have shown sufficient legal interest or legal standi to approach this Court for the determination of the issues arising in the originating summons.

The action in the lower Court was commenced by the named first Respondent and one Martin D Davugun, who has since died, and they described themselves, in the affidavit in support of the originating summons, as the President and Secretary respectively of the Pan Development Association. They deposed that they were natives of Koffyar of Pan and that the Pan Development Association is an umbrella body of persons of Koffyar stock living in part of Plateau State and in the Diaspora and that they commenced the action for themselves and

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on behalf of the people of Pan living in Namu in Quaan Pan Local Government Area, also known as the Pan Community living in Namu, and that they have been so authorized. They deposed that part of the Terms of Reference given by the second Respondent to the Judicial Commission of Inquiry, the fifth Respondent, was to establish the ownership of Namu through historical data and that the fifth Respondent recognized in its findings that the contending parties to the ownership of Namu were the Gamai/Ankwe tribe of Namu and the Pan or Koffyar Group. They deposed that the fifth Respondent stated in its Report that the ownership of adjoining towns and villages to Namu is resolved in favour of the Gamai and that the second to the fourth Respondents issued a White Paper accepting the finding. It was their case that they were affected by the finding of the fifth Respondent and by the decision of the second to the fourth Respondents in the White Paper accepting the finding.

Applying simple grammatical interpretation to words used in these depositions, it is obvious that they explained the relationship between the Pan Development Association and Pan Community of Namu and they showed that both appellations referred to the people of Koffyar stock who live in Namu, also known as the Koffyar group, and that the action in the lower Court was commenced for and on behalf of these persons. It is not in contest in this matter that the people of Koffyar stock who live in Namu are a clearly identifiable group of persons with legal personalities and that they shared a common interest in their claim of ownership of Namu land. The depositions show that this common interest of the Koffyar people living in Namu was directly affected by the findings made by the fifth Respondent on the ownership of Namu in its Report of Findings submitted to the second Respondent and which findings were accepted by the second to the fourth Respondents in the White Paper published on the report. This action was commenced to contest the Terms of Reference of the fifth Respondent, the Report of Findings and the White Paper as they relate to the issue of the ownership of Namu land. These depositions showed the special and sufficient interest of the first Respondents in commencing the action.

Additionally, the above summarized facts of the affidavit in support of the originating summons were not contested, challenged or countermanded by either the second to the fifth Respondents, sued as the first to the fourth defendants, or by the Appellants, sued as the fifth to the tenth defendants, in their separate counter affidavits to the originating summons. It is elementary law that where material and credible facts are deposed in an affidavit and they are not challenged or rebutted, they are deemed admitted and a Court of law can act on them  Conoil Plc Vs Vitol S. A. (2012) 2 NWLR (Pt 1283) 50, Attorney General, Nasarawa State Vs Attorney General, Plateau State (2012) 10 NWLR (Pt 1309) 419, Eyiboh Vs Abia (2012) 16 NWLR (Pt 1325) 51.

This Court must say that, in view of these clear facts, and which were admitted by the Appellants, it is at a loss to understand the rationale and bases for the long and laborious arguments of the Counsel to the Appellants on the locus standi of the first Respondents to commence and maintain the action in the lower Court. The deposed facts clearly donate their locus standi. The entire arguments are pure semantics based on conjectures and non-existent facts, and which go against the very letter and intent of facts deposed in the affidavit on the originating summons. It is pertinent to remind Counsel that it is not a mark of good advocacy for a Counsel to embark on a confused and convoluted argument on issues, in the face of clear and simple facts. It is a display of lack of knowledge and understanding of the subject of discourse. The finding of the lower Court that the first Respondents disclosed the requisite locus standi to sue for themselves and on behalf of the Pan Community of Namu cannot be faulted. The contentions of Counsel to the Appellants on the point were totally misconceived.

  1. Statute Bar
    Counsel to the Appellants argued that the questions submitted on the originating summons and the reliefs sought thereon were against the Terms of Reference of the fifth Respondent, the Report of the fifth Respondent and the White Paper issued thereon, Exhibits A, B and C and that the complaint against each of the documents constituted a cause of action. Counsel stated that while the cause of action against the White Paper, Exhibit C, was not stature barred, the causes of action against the Terms of Reference and the Report, Exhibits A and B, were statute barred having been commenced outside the allowed three months period and that since the cause of action against Exhibit C cannot stand alone, it meant the entire action was statute barred. Counsel to the first Respondents contended in response that it did not lie in the mouth of the Appellants to raise the issue of statute bar under the Public Officers Protection Law as they were not public officers and that the second to the fifth Respondents who were the public officers did not raise it. Further, that the cause of action in the entire action arose on the publication of Exhibit C and that the action was commenced within three months of the publication and was thus not statute barred.

The Appellants predicated their submission on statute bar on the provision of the Public Officers Protection Act Cap 379, Laws of Federation of Nigeria 1990, Section 2 (a) of which states:
2. Where any action, prosecution or other proceeding is commenced against any person for any act done in pursuance or execution of any act or law or of any public duty or authority, or in respect of any alleged neglect or default in the execution of any such act, law, duty or authority, the following provisions shall have effect
(a) The action, prosecution or proceeding shall not lie or be instituted unless it is commenced within three months next after the act, neglect or default complained of, or in case of a continuance of damages or injury within three months next after ceasing thereof
It is settled law that the purpose of the Public Officers Protection Act is to protect a public officer against any action, prosecution or other proceeding, and for any act done in pursuance or execution or intended execution of any Law, public duty or authority or for any alleged neglect or default in the execution of any Law, duty or authority  Momoh Vs Okewale (1977) 6 SC (Reprint) 49, Ekeogu Vs Aliri (1991) 3 NWLR (Pt 179) 258, Ibrahim Vs Judicial Service Commission, Kaduna State (1998) 14 NWLR (Pt 584) 1, El-Rufai Vs Senate of the National Assembly (2016) 1 NWLR (Pt 1494) 504. The Act does not afford any protection to persons who are not public officers , Bureau of Public Enterprises Vs Re Insurance  Acquisition Group Ltd (2008) LPELR 8560(CA), Branch Controller, West African Examination Council Vs Alade (2012) All FWLR (Pt 656) 526, Agboroh Vs The West African Examination Council (2016) LPELR 40974(CA). It is also settled law that a limitation law is procedural, setting out clearly a time frame within which an action must be filed and as such limitation laws are matters of practice and procedure and they are not aspects of the substantive law  Chigbu Vs Tonimas (Nig) Ltd (2006) 9 NWLR (Pt 984) 189, Obayiuwana Vs Minister of Federal Capital Territory (2009) LPELR 8202(CA). Limitation law thus concerns the procedural jurisdiction of a trial Court and not its substantive jurisdiction, and, being an issue of procedural jurisdiction, it must be raised by a party entitled to rely on it in his pleadings and that where it is not so raised, the party will be deemed by the simple rules of pleadings to have waived whatever rights he possesses thereon  Katsina Local Government Authority Vs Makudawa (1971) 7 NSCC 119, Mobil Producing (Nig) Unlimited Vs Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt 798) 1, F & F Farms (Nig) Ltd Vs Nigeria National Petroleum Corporation (2009) 12 NWLR (Pt 1155) 387, Ediru Vs Federal Road Safety Commission (2016) 4 NWLR (Pt 1502) 209, Akahall & Sons Limited Vs Nigeria Deposit Insurance Corporation (2017) LPELR 41984(SC).
In other words, limitation of action is a defence that can be waived by a party entitled to it and to that extent it cannot be said that an action commenced outside the limitation period is incompetent for lack of jurisdiction of the Court  Araka Vs Ejeagwu (2000) 15 NWLR (Pt 692) 684, Omotosho Vs Bank of the North Ltd (2006) 9 NWLR (Pt 986) 573, Nwaonu Vs Osuchukwu (2007) All FWLR (Pt 313) 329, Chukwu Vs Amadi (2009) 3 NWLR (Pt 1127) 56. The law recognizes that an individual may renounce or waive a law made for his special benefit or protection. This is encapsulated in the maxim quilibet potest renunciare juri pro se introducio  Odua Investment Co. Ltd Vs Talabi (1997) 10 NWLR (Pt 523 1, Ndayako Vs Dantoro (2004) 13 NWLR (Pt 889) 187, Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (Pt 1339) 448, Udo Vs The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt 1375) 488, Ediru Vs Federal Road Safety Commission supra. In Ariori Vs Elemo (1983) 1 SCNLR 1, Eso, JSC put the point thus: When a right is conferred solely for the benefit of an individual there should be no problem as to the extent to which he could waive such a right. The right is for his benefit. He is sui juris. He is under no legal disability. He should be able to forgo the right or in other words waive it either completely or partially, depending on his free choice. The extent to which he has forgone his right would be a matter of fact and each case will depend on its peculiar facts.  A beneficiary under statute should have full competence to waive those rights once the rights are solely for his benefit. The only exception I can think of is where the statute itself forbids waiver of its statutory provisions.

The law is that where a party fails to canvass a right given to it by law and chooses to abide by and acquiesce by the decision of a trial Court, there ends the matter. It was on the strength of this principle that the Supreme Court held that it is the party who was not served with a Court process, where service is required, that can raise the issue and seek to have the order made against him nullified, and not a party that was duly served  Mbadinuju Vs Ezuka (1994) 8 NWLR (Pt 364) 5, Chime Vs Chime (2001) 3 NWLR (Pt 701) 527, Mark Vs Eke (2004) 5 NWLR (Pt 865) 54, Idisi Vs Ecodril (Nig) Ltd (2016) LPELR 40438(SC). The Courts recognize that even a constitutionally guaranteed right of fair hearing is one which a party is at liberty to waive, if he so desires  Arubo Vs Aiyeleru (1993) 3 NWLR (Pt 280) 126 and Governor, Oyo State Vs Folayan (1995) 8 NWLR (Pt 413) 292.
A public officer can thus decide not to plead the protection offered him by the Public Officers Protection Act. Therefore, it is commonsensical that it is for a public officer to raise and canvass the protection under the Public Officers Protection Act, and where he fails to do so, the protection will be deemed waived; it is not for a non-public officer to do so. To hold otherwise will be to make nonsense of the intention of the legislature in promulgating the Public Officers Protection Act and it will amount to the Court reading words into the Act that are not there and extending it beyond the scope of the Act; and this is not the function of the Court. In the instant case, the second to the fifth Respondents who are the public officers did not raise or claim the protection offered them by the provisions of Public Officer Protection Act either in the lower Court or in this appeal. It is the Appellants, who are not public officers, who have done so. It is the view of this Court that they cannot do so. The lower Court ought to have discountenanced the issue of statute bar completely.

Going forward and assuming that the Appellants could raise the issue, it is trite that the period of time prescribed by a statute of limitation begins to run the moment a cause of action accrues to the person entitled to it  National Bank of Nigeria Ltd Vs Arison Trading & Engineering Co. Ltd (2006) 16 NWLR (Pt 1005) 210, Amede Vs United Bank for Africa Plc (2008) 8 NWLR (Pt 1090) 623, Chukwu Vs Amadi (2009) 3 NWLR (Pt 1127) 56. Thus, when dealing with a limitation statute, it is of utmost importance to ascertain the exact date of accrual of a cause of action.

The phrase cause of action means simply a factual situation the existence of which entitles one person to obtain a remedy against another person. It is a fact or combination of facts which when proved would entitle a plaintiff to a remedy against a defendant. It consists of every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment of the Court. It consists of two elements, namely: (i) the wrongful act of the defendant which gives the claimant his cause of complaint; and (ii) the consequent damage  Sanda Vs Kukawa Local Government (1991) 2 NWLR (Pt 174) 379, Dantata Vs Mohammed (2000) 7 NWLR (Pt 664) 176, Charles Vs Governor of Ondo State supra, Uwazuruonye Vs Governor, Imo State (2013) 8 NWLR (Pt 1355) 28.
A cause of action is constituted by either a single fact or a combination of facts averred by a plaintiff in his pleadings which the law will recognize as giving him a right to make a claim against a defendant for a remedy or relief in Court. The factual situation disclosed by the facts in the plaintiffs pleadings on which he relies to support the claim made must be recognized as giving him the right capable of being claimed against the defendant Egbe Vs Adefarasin (No 2)  (1987) 1 NWLR (Pt 47) 1, Seagull Oil Ltd Vs Moni Pulo Ltd (2011) 15 NWLR (Pt 1271) 525. A cause of action has to be looked at from the peculiar circumstances of any given case. Thus, when a cause of action can be said to have arisen varies from one case to another and it is always the function of the facts of the case, which gives rise to a right of action thus entitling a person to judicial relief Amede Vs United Bank for Africa supra. Therefore, in construing the writ of summons and statement of claim, a Court must concern itself with the fundamental cause of action being pursued in the action by the plaintiff and not the peripheral issues; it is the time for commencing an action to enforce that fundamental cause of action that is material  Humbe Vs Attorney General, Benue State (2000) 3 NWLR (Pt 649) 419 at 439 A-E.

The question that arises on the issue of statute bar, in the instant case, is when did the cause of action that the first Respondents ventilated in their originating summons arise This question was considered and answered by the lower Court in the judgment thus:

From the foregoing it appears to me that until the Exhibit C was issued, the plaintiffs had no right to complain because until then, there was no grievance; there was no damages and no harm done to the plaintiffs. Therefore, until Exhibit C was issued, the cause of action was not complete, the plaintiffs could not have begun and maintained the cause of action as far as the issue of a Commission of Inquiry is concerned. A cause of action can only accrue when the body that sets up the Commission does the final act in relation to the work of the Commission.  As I have pointed out, the cause of action only arose when Exhibit C came into effect, the exhibit was published in May 2006 while the suit was filed on 10th of July, 2006. This being the case, the suit was filed within three months when the cause of action arose. It is therefore not statute barred.
The complaints of the first Respondents in their originating summons were three fold  (i) against the second item on the Terms of Reference given by the second Respondent to the fifth Respondent in the instrument constituting the Commission of Inquiry, i.e. to establish the ownership of Namu, and the instrument was issued on the 30th of December, 2005; (ii) against the Report of Findings of the fifth Respondent on said second item in the Terms of Reference, and the Report was issued and submitted in March, 2006; and (iii) against the White Paper issued by the second to the fourth Respondents accepting the findings in the Report of the said second item on the Terms of Reference and the White Paper was published in May, 2006.
Now, it is not in dispute that the Commission of Inquiry Law of Northern Nigeria 1963, and which is applicable in Plateau State, empowered the second Respondent to set up the fifth Respondent, the Judicial Commission of Inquiry into the Conflict in Namu Town  Onyekwuluje Vs Benue State Government (2015) LPELR 24780(SC). It is also not in dispute that a Judicial Commission of Inquiry is not the same thing as a Court of law or its equivalent and its function is merely investigative and it is in the nature of a fact finding committee  Amaechi Vs Independent National Electoral Commission (2008) LPELR 446(SC), Donbraye Vs Preyor (2014) LPELR 22286(CA). It is the duty of a Judicial Commission of Inquiry to submit its Report of Findings to the body that set it up at the conclusion of its proceedings and its recommendations or decisions have no legal and binding effect on anyone until they are accepted by the authorizing body  Anjoku Vs Nnamani (1953) 14 WACA 357,Oyelade Vs Araoye  (1968) NMLR 41, Governor , Oyo State Vs Folayan (1995) 8 NWLR (Pt 413) 292. It is also settled law that in the normal course of governance, a Government manifests its acceptance of a Report of Commission of Inquiry by way of a publication of a White Paper which tells the world its reaction to the inquiry  Abdullahi Vs Hashidu (1994) 4 NWLR (Pt 600) 638, Tao & Sons Industries Ltd Vs Governor, Oyo State (2011) 6 NWLR (Pt 1242) 1.
Dovetailing from the above stated positions of the law, the Court have held that the contents of a Report of Findings of Commission of Inquiry are not justiciable and cannot invest any person with a cause of action. In other words, no person is allowed to commence an action to challenge or enforce the contents of the Report of Findings Aremo II Vs Adekanye (2004) 13 NWLR (Pt 891) 572.

In fact, Section 10 of the Commission of Inquiry Law of Northern Nigeria 1963 states that no evidence taken before a Commission of Inquiry shall be admissible against any person in any civil or criminal proceeding whatsoever, except in the case of a person charged with giving false evidence before the Commission under Section 12 of the Law. The Courts have interpreted this provision to mean that the Report of Findings of a Commission of Inquiry is not admissible in evidence and where it is inadvertently admitted, it must not be accorded any probative value  Ogunbadejo Vs Owoyemi (1993) LPELR 2312(SC), Elemoro Vs Abiodun (2014) LPELR 23195(CA). Therefore, a cause of action against a Report of Findings of a Commission of Inquiry is said to arise only upon the publication of the White Paper accepting its findings and recommendations  Cookey Vs Fombo (2005) 15 NWLR (Pt 947) 182, Tao & Sons Industries Ltd Vs Governor, Oyo State supra, Bajowa Vs Federal Republic of Nigeria (2016) LPELR 40229(CA).
Thus, the complaints of the first Respondents in the originating summons against the Terms of Reference of the fifth Respondent and against the Report of Findings of the findings of the fifth Respondent did not invest the first Respondents with any justiciable cause of action. It was on the publication of the White Paper by the second to the fourth Respondents that the cause of action of the first Respondents crystallized. The White Paper was published in May 2006, and the action in the lower Court was commenced on the 10th of July, 2006. This was the within the three months’ time limit. The action was not statute barred. The finding of the lower Court was faultless. The contentions of Counsel to the Appellants on statute bar were not well founded.

  1. Estoppel by Conduct
    Counsel to the Appellants posited that the action of the first Respondents was caught by the doctrine of estoppel by conduct in that (i) they were parties to the agreement that the dispute that led to the conflict in Namu Town by referred to a Commission of Inquiry to look into; (ii) they were aware of the Terms of Reference of the fifth Respondent and they attended and participated in the proceedings and called witnesses who gave oral and documentary evidence on all the matters in the Terms of Reference; (iii) they were represented by Counsel of their choice at the proceedings and at no time did they challenge the competence of the fifth Respondent to deliberate on the issue of the ownership of Namu Town. In his response, Counsel to the first Respondents stated that only parties to proceedings can by caught by the doctrine of estoppel and that since there were no parties in the proceedings before the fifth Respondent and they did not claim any relief thereat, they cannot be caught by it. Counsel stated that their consent was as to the setting up of a Commission of Inquiry to look into the conflict that occurred in Namu Town and not for the determination of the ownership of Namu and that their action challenged the validity and the constitutionality of the findings of the fifth Respondent on the ownership of Namu and as such the action cannot be caught by estoppel.

Estoppel is an admission or something that the law views as equivalent to an admission. By its very nature, it is so important, so conclusive, that the party whom it affects is not allowed to plead against it, or adduce evidence to contradict it. Estoppel prohibits a party from providing anything that contradicts his previous acts or declarations to the prejudice of a party who, relying upon them, has altered his position. It shuts the mouth of a party Yoye Vs Olubode (1974) 10 SC 209, Ukaegbu Vs Ugoji (1991) 6 NWLR (Pt 196) 127, Ladimeji Vs Salami (1998) 5 NWLR (Pt 548) 1. It has its origin in the French word estoupe Bamgbegbin Vs Oriare (2001) 5 NWLR (Pt707) 628, Kupoluyi Vs Phillips (2001) 13 NWLR (Pt 731) 736. It is a liability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to the disability; that is, he is not allowed to say a certain statement of fact or assertion he made is untrue, whether in reality it is true or not.

One of the variants of the doctrine of estoppel is estoppel by representation, also known as estoppel by conduct and as estoppel in pais. It stipulates that if a man by his own words or conduct willfully endeavours to cause another to believe in a certain state of things which the first knows to be false and if the second believes in such state of things and acts upon the belief, he who knowingly made the false statement is estopped from averring afterwards that such a state of things does not exist at the time. Similarly, if a man, either in express terms or by conduct, makes representation to another of the existence of a state of facts which he intends to be acted upon in a certain way, and it be acted upon in that way, in the belief of the existence of such a state of facts, to the damage of him who so believes and acts, the first is estopped from denying the existence of such state of facts. Thirdly, if a man, whatever his real meaning may be, so conducts himself that a reasonable man would take his conduct to mean certain representation and that it was a true representation and that the latter was intended to act upon it and in a particular way and he, with such belief, does act in that way to his damage, the first is estopped from denying the facts as represented  Iga Vs Amakiri (1976) 11 SC 1, Oyeyemi Vs Commissioner for Local Government, Kwara State (1992) 2 NWLR (Pt 266) 661, Ude Vs Nwara (1993) 2 NWLR (Pt 278) 638, Oyerogba Vs Olaopa (1998) 13 NWLR (Pt 583) 509.
In resolving the issue of estoppel by conduct raised by the Appellants, the lower Court stated in the judgment thus:
It is clear that the gravamen of the case of the plaintiffs is a challenge to the constitutionality of the action of the 1st  4th defendants. They are seeking to have declared certain actions of the 1st 4th defendants as unconstitutional, null and void and of no effect. Since they are challenging the constitutionality of certain actions of the 1st 4th defendants, they cannot be met with the defence of estoppel by conduct. This is because parties cannot by consent or acquiescence or failure to object, nullify the effect of the constitution.
This Court must say that it is unable to fault the above reasoning of the lower Court. The gravamen of the case of the first Respondents on the originating summons was the legality and the constitutionality of the actions of the second Respondent in setting up the fifth Respondent with the mandate, inter alia, to establish the ownership of Namu Town, and of the deliberations of the fifth Respondent on the mandate and of the acceptance of the recommendations of the fifth Respondent on the mandate. It is settled law the doctrine of estoppel cannot be extended to cover up or condone an illegal, unconstitutional or criminal conduct and it will be against public policy to attempt to apply estoppel to shut up a complaint against such conduct. The doctrine of estoppel cannot work in favour of parties who mutually give their consent or agree to an illegality. Thus, estoppel will not be allowed to preclude the party against whom it is sought from asserting and bringing to the notice of the Court the illegality of such actions and/or instruments which are sought to be validated by acceptance of the estoppel pleaded  Onamade Vs African Continental Bank (1997) 1 NWLR (Pt 480) 123, Union Bank of Nigeria Plc Vs Okoror (2002) 10 NWLR (Pt 774) 1, Ugwu Vs Ararume (2007) 12 NWLR (Pt 1048) 367, First Amalgamated Building Society Ltd Vs Ibiyeye (2008) 14 NWLR (Pt 1107) 375.
The doctrine of estoppel by conduct cannot thus be invoked to shut out the complaints of the first Respondents against the legality and the constitutionality of the actions of the second to the fifth Respondents as regards the question of the ownership of Namu Town and of Exhibits A, B and C . The reliance placed on the doctrine by the Appellants in this case was wrongful.

This Court thus hereby determines all the preliminary issues arising in the appeal in favour of the first Respondents. The first issue for determination is resolved in favour of the first Respondents.

Issue Two
Whether the lower Court was correct when it found that the first Respondents made out a credible case to sustain the reliefs they sought and thus entitled to judgment.
The entire case of the first Respondents on the originating summons before the lower Court revolved around two basic questions  whether the second Respondent could legally and constitutionally constitute an issue of ownership of Namu land as part of the Terms of Reference of the fifth Respondent, a Judicial Commission of Inquiry; and what is the status of the Report of the Findings of the fifth Respondent, as accepted by the second Respondent, on the issue. Counsel to the first Respondents argued that the second Respondent could not do so as the Land Use Act and the 1999 Constitution, as amended, invested only the High Court of a State and the Area Courts or Customary Courts in that State with the jurisdiction to determine issues of ownership of land and that the deliberations of the fifth Respondent on the issue amounted to a usurpation of judicial powers and its finding that ownership of Namu land laid in the Appellants, and as accepted by the second Respondent, was tantamount to a judgment declaring title to Namu land in favour of the Appellants.

Counsel to the Appellants submitted otherwise and stated that the second Respondent could constitutionally and legally do so and that the fifth Respondent qualified as a Court for that purpose under the Land Use Act and it could exercise judicial powers to make a declaration thereon. The lower Court deliberated on the arguments of Counsel and it interpreted the essence of the item 2 on the Terms of Reference of the fifth Respondent, to establish the ownership of Namu from historical data, thus:
If I am to put the intendment or meaning of the second Term of Reference in the Exhibit A in another way, then it will mean the Commission was to establish the ownership of the property called Namu from historical information or facts. The property known as Namu must be land based on the framing of the Terms of Reference No 2 and the proceedings and findings of the 4th defendant and refer the acceptance of same by the 1st to 3rd defendants

The lower Court thereafter looked through the findings made on the subject by the fifth Respondent and continued thus:
The Commission did not only rely on historical evidence but also relied on a very important means of proving ownership of land which is recent acts of possession in declaring ownership of Namu. From the Term of Reference, no 2 and the proceedings of the Commission it is clear there has been a dispute over the ownership of Namu, the contending parties have been the plaintiffs and 5th to 10th defendants. Since there was a dispute over the ownership of the land of Namu, the issue thereby touched on the civil rights, interest, obligations of the contending parties and by virtue of Section 6 (2), (6) (a), (b) CFRN 1999 it is a matter within the judicial powers of the country which powers are vested in the Court.  The jurisdiction and authority of the Courts in this country cannot be usurped by either the executive or legislative branch of the Federal or State Government under any guise or pre whatsoever.

The lower Court thereafter considered the contention of the Appellants that the fifth Respondent qualified as a Court in the circumstances under the Land Use Act and could make a declaration on the issue and, after its deliberations, stated thus:
This automatically means that since a Commission of Inquiry set up under the Commission of Inquiry Law Cap 25 LNN is not a Court of law it cannot be one of or among the Courts with jurisdiction under Section 39 and 41 of the Land Use Act. A Commission of Inquiry does not change its character as such into a law Court merely because it is presided over by a Judge of the High Court or that a legal practitioner is made to head it or becomes a member. For the avoidance of doubt, the only Courts so far with jurisdiction from the interpretations of the Section 39 and 41 of the Land Use Act by the appellate Courts are the High Courts of a State and the Area or Customary Courts

The lower Court concluded its deliberations thus: From the foregoing I am satisfied that in view of the provisions of the Land Use Act and the Constitution, the 2nd defendant has not powers to refer matters over ownership of land to a Commission of Inquiry to determine. I am also satisfied that in view of the provision of the Land Use Act and the Constitution, the Commission of Inquiry established by the first defendant under the Commission of Inquiry Law Cap LNN 1963 is not one of the Courts created and recognized by the Constitution of the Federal Republic of Nigeria and the Land Use Act empowered to determine proceedings and question of ownership of land

As stated earlier, the entire case before the lower Court revolved around two questions  whether the second Respondent could legally and constitutionally constitute an issue of ownership of Namu land as part of the Terms of Reference of the fifth Respondent; and what is the status of the Report of the Findings of the fifth Respondent, as accepted by the second Respondent, on the issue. The answers to the two questions are really quite simple and straightforward and the two questions do not overlap as argued by Counsel to the parties and as suggested by the lower Court in the judgment.

Section 2 (1) of the Commission of Inquiry Law of Northern Nigeria 1963 clothed the second Respondent with the powers to set up the fifth Respondent. It reads:
The Governor may, whenever he shall deem it desirable, issue an instrument appointing one or more commissioners, and authorizing such commissioners or any quorum of them therein mentioned, to hold a Commission of Inquiry into the conduct of any officer in the public service of Northern Nigeria or of any chief, or the management of any department of the public service, or of any local institution, or into any matter in respect of which, in his opinion, an inquiry would be for the public welfare
This provision has been interpreted by the Courts as giving the second Respondent unfettered discretion to set up a Commission of Inquiry to inquire into the conduct of (a) any officer in the public service of Plateau State; or (b) of any chief in Plateau State; or (c) the management of any department of the public service of Plateau State ; or (d) of any local institution in Plateau State; or (e) into any matter in respect of which, in his opinion, an inquiry would be for the public welfare of the people of Plateau State, as and when he deems it necessary  Governor of Kaduna State Vs Kagoma (1982) All NLR 160, Gafar Vs Government of Kwara State (2007) 4 NWLR (Pt 104) 375, Kabirikim Vs Emefor (2009) 14 NWLR (Pt 1162) 602, Onyekwuluje Vs Benue State Government (2015) LPELR 24780(SC), Barigha-Amange Vs Adumein (2016) 13 NWLR (Pt 1530) 349, Amaechi Vs Governor of Rivers State (2017) LPELR 43065(CA).
The question of whether the second Respondent has the power to, in the exercise of its discretion to set up a Commission of Inquiry into any matter in respect of which, in his opinion, an inquiry would be for the public welfare of the people of Plateau State, constitute a Commission of Inquiry to inquire into the ownership of land, in view of the constitutional provisions on judicial powers and the unlimited jurisdiction of the High Court on land matters, is not new. It was one of the issues that confronted the Supreme Court in the case of Kabirikim Vs Emefor supra. Onnoghen, JSC, (as he then was) and who wrote the lead judgment identified the issue thus:

It is the submission of learned counsel for the appellants that the provision of Section 2(1) of Cap 25 does not empower the Governor to appoint a Commission of Inquiry to inquire into ownership of land as the power to inquire into land ownership belongs exclusively to the Court under Sections 6 (6) and 236 (1) of the 1979 Constitution.
Muntaka-Coomassie, JSC, in his contributory judgment surmised the issue as follows:
The question that comes to mind now is  has the 5th respondent the power to set up the Commission of Inquiry to investigate which districts the three villages rightly belong, or to use the disputed language  which district has the ownership right over the villages The appellants have strenuously argued that the 5th respondent has not power to set up a Commission of Inquiry with the terms of reference to determine the ownership right over any of the villages, particularly when such head of claim was not provided for in Section 2 (1) Commissions of Inquiry Law Cap 25, Laws of Northern Nigeria, that the general phrase or any other matter is not independent of the instances stated in the section.

The respondents argued otherwise, not only that the 5th respondent has the power to set up the Commission of Inquiry but also to vest it with the power to investigate into the ownership of the three villages as it relates to issues of public welfare as provided in Section 2 (1) of the Law.
This is the exact same question posed in this matter. Thus, the stringent attempt by Counsel to the first Respondents to distinguish the present case from the case in Kabirikim Vs Emefor supra was futile. In answering the question, Onnoghen, JSC, (as he then was) reproduced the provisions of under Sections 6 (6) and 236 (1) of the 1979 Constitution, which are in pari materia with the provisions of under Sections 6 (6) and 272 (1) of the 1999 Constitution, as amended, and stated thus:
There is no doubt at all that by the above provisions, the High Court of a State is constitutionally clothed with unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim, is in issue and to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment, or other liability in respect of an offence committed by any person. It is equally clear that the unlimited jurisdiction so conferred includes the right to hear and determine land ownership when properly brought before the Court.
However, it is also very clear that from Section 2 (1) of Cap 25  that the Governor of Plateau State has the power to appoint a Commission of Inquiry to inquire into any matter including ownership of disputed land forming part of an administrative area in respect of which, in his opinion, an inquiry would be for public welfare. It is my further view that a Commission of Inquiry appointed with the terms of reference as in the instant case does not interfere with the jurisdiction of the High Court conferred by Section 236 (1) of 1979 Constitution.
The other Justices who sat on the appeal agreed with this position. Muntaka-Coomassie, JSC, added, in his contribution, that the qualifying consideration is that the Commission of Inquiry is set up to inquire into the ownership of the land in the interest of public welfare and that where the Commission is set up in response to a violent public protest on the issue, then it is for public welfare. This is what happened and led to the second Respondent setting up of the fifth Respondent in the instant case. The case of Kabirikim Vs Emefor supra is on all fours with this case and this Court is bound by the decision. The answer to the first question posed above is thus in the affirmative; the second Respondent had the power, legal and constitutional, to constitute the issue of ownership of Namu land as part of the Terms of Reference of the fifth Respondent.

This takes us to the second question what is the status of the Report of the Findings of the fifth Respondent, as accepted by the second Respondent, on the issue. Now, it is settled beyond peradventure that a Judicial Commission of Inquiry is not the same as a Court of law and it is in the nature of a fact finding committee  Amaechi Vs Independent National Electoral Commission (2008) LPELR 446(SC), Donbraye Vs Preyor (2014) LPELR 22286(CA), Amaechi Vs Governor of Rivers State (2017) LPELR 43065(CA), Barigha-Amange Vs Adumein (2016) 13 NWLR (Pt 1530) 349. This point was succinctly explained by my Noble Lord, Tur, JCA, in the case of Chukwudi Vs Momah (2017) LPELR 42675(CA) thus:
The appellant made heavy weather of the fact that he was not invited to appear before the two Judicial Commissions that inquired into the plots allotted or granted by the Enugu State Government hence his right of fair hearing had been breached by the respondents. A Commission of Inquiry be it headed by a learned Judge or person not learned in law is neither a Court or other tribunal that is seised with the jurisdiction to determine the civil rights and obligations of any person under Section 36 (1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered. Judicial Commission or non-Judicial Commissions are usually set up by Government to collate evidence on causes or matters of interest to Government. Thereafter Government takes a decision or fashion a policy concerning the subject matter under investigations. Persons appearing before such Commissions are neither plaintiffs, defendants or accused persons. The Commission completes the hearing and makes recommendations to the Government. The Government would then issue a White Paper accepting all or some of the recommendations of the Commission. The decision of the Government is made known in a gazette published for the attention and reactions of members of the public.
The Commission of Inquiry Law does not vest a Commission of Inquiry with judicial powers  Military Governor, Oyo State Vs Adekunle (2005) 3 NWLR (Pt 912) 294, Amaechi Vs Governor of Rivers State (2017) LPELR 43065(CA). Section 19 of the Law provides that upon completion of their proceedings, the Commission of Inquiry is to submit its report, containing an opinion and reasons leading to the conclusions, to the Governor. In Okoye Vs Lagos State Government (1990) 3 NWLR (Pt 136) 115 the Court held that generally, a body exercising powers which are of merely advisory, investigatory or conciliatory character or which do not have legal effect until confirmed by another body, or involved only the making of a preliminary decision will not normally be held to be acting in a judicial capacity. The fifth Respondent was not different from an administrative panel whose recommendations and findings were meant to be advisory to the second to the fourth Respondents. It had no quasi-judicial or judicial power. The entire arguments of Counsel to the Appellants otherwise was totally misconceived.
The findings and/or decisions of fifth Respondent did not amount to a judgment of Court and it had no power to declare title to land or make any declaratory order in favour of anybody. The findings and/or decisions of the fifth Respondent, not being a judgment of Court, cannot support a plea of res judicata. This point was made by the Supreme Court in the case of Balogun Vs Ode (2007) 4 NWLR (Pt 1023) 1 at pages 22 F-D thus:
In determination of this issue, the main question is whether the decision of the standing Tribunal on Chieftaincy Matters of Lagos State though headed by a retired High Court Judge, that the appellants four ruling houses now reduced to two in the Tribunals report submitted to Government which led to the promulgation and registration of the chieftaincy declaration being challenged by the appellants in their action, constitutes a decision of a Court of law capable of supporting the plea of estoppel. The answer of course is in the negative as correctly found by the trial Court.

This position is particularly more so in the instant case because Section 10 of the Commission of Inquiry Law, under which the fifth Respondent was set up, provides that no evidence taken before a Commission of Inquiry shall be admissible against any person in any civil or criminal proceeding whatsoever, and this provision has been interpreted to mean that the Report of Findings of a Commission of Inquiry is not admissible in evidence and where it is inadvertently admitted, it must not be accorded any probative value  Ogunbadejo Vs Owoyemi supra, Elemoro Vs Abiodun supra. How can the findings and/or decisions contained in a Report that is not admissible in evidence in a matter constitute or support a plea of estoppel
This Court is not unaware of the decision of the Supreme Court in the case of Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217 wherein it was suggested that the findings/decisions of a Commission of Inquiry could constitute res judicata. A read through the judgment in the case shows that it was a minority opinion expressed by only two members of the panel of five Justices that heard the matter, Chukwuma-Eneh, JSC, and Adekeye, JSC. Galadima, JSC, who delivered the lead judgment, Mahmud Mohammed, JSC, (as he then was) who presided and concurred with the lead judgment and Muntaka-Coomassie, JSC, who also concurred with the lead judgment, expressed no such views. The minority opinion of two Justices cannot oust the decision of the panel of five Justices in Balogun Vs Ode supra. Moreover, the decision in Momoh Vs Umoru supra was not based on the provisions of the Commission of Inquiry Law of Northern Nigeria 1963 or of any other Law that contains a provision similar to Section 10 of the Commission of Inquiry Law of Northern Nigeria 1963.
The Commission of Inquiry Law under which the fifth Respondent was set up makes no provision for the issuance of a White Paper by the Government pursuant to the report of a Commission of Inquiry. The issuance of a White Paper on the report of a Commission of Inquiry set up under the Law is as a matter of practice, rather statutory. The Law did not thus confer any special status on a White Paper issued pursuant to such a report. The findings/decisions of the fifth Respondent, even as accepted by the second Respondent and a White Paper published, cannot thus prevent or debar the first Respondents from challenging any action taken by the second to the fourth Respondents to actualize or implement the findings/decisions and neither can it stop them from suing the Appellants or any one claiming for or through them for the ownership of the land of Namu before the High Court or the Area Courts of Plateau State, as the case may be Balogun Vs Ode supra, Military Administrator, Ekiti State Vs Aladeyelu (2007) 14 NWLR (Pt 1055) 619. The findings/decisions and the White Paper issued thereupon did not affect or compromise in any way the exclusive jurisdiction of the High Court of Plateau State and of the Area Courts and Customary Courts in the State under Sections 39 and 41 of the Land Use Act and Section 272 (1) of the 1999 Constitution, as amended, to resolve or determine any dispute over the ownership of the land of Namu Town  Kabirikim Vs Emefor supra.
Thus, apart from giving the Appellants a good feeling, the findings and decisions contained in the Report of the fifth Respondent, Exhibit B, on the ownership of Namu did not create or establish any right, declaratory or otherwise, over the ownership of Namu land in their favour. This is notwithstanding the acceptance of the findings by the second to the fourth Respondents by the publication of the White Paper, Exhibit C. This much is discernible from the judgment of the Supreme Court in Amaechi Vs Independent National Electoral Commission supra that where a Judicial Commission of Inquiry or administrative panel finds a citizen culpable or liable of a conduct bordering on criminality and the Federal or State Government accepts such report through a publication of a White Paper, it is still not good enough to deprive that citizen of a constitutionally guaranteed right unless and until he is afterwards prosecuted in a Court of law and found guilty. Similar views were expressed in Action Congress of Nigeria Vs INEC (2007) All FWLR (Pt 378) 1012, Alhaji Vs Gaya (2008) LPELR 3709(CA), Barigha-Amange Vs Adumein supra.
This Court must confess that, reading through the Report of findings and decisions of the fifth Respondent, the writing style and approach adopted was similar to that of a Court, but this was due perhaps to the fact that the fifth Respondent was headed by a retired Chief Judge. This, however, did not elevate it beyond the report of a fact-finding committee. The findings of the lower Court that the second Respondent had no powers to request the fifth Respondent to inquire into and establish the ownership of the Namu and that the findings and decisions of the fifth Respondent amounted to a usurpation of the judicial functions of the High Court and the Area and Customary Courts of Plateau State were not correct. The judgment of the lower Court based on these findings must be set aside.

In conclusion, this Court finds some merit in the appeal and it is hereby allowed. The judgment of the High Court of Plateau State in Suit No PLD/J286/2006 delivered by Honorable Justice Y. G. Dakwak on the 17th of October 2008 is hereby set aside. The claims of the first Respondents before the lower Court fails and they are hereby struck out. The parties shall bear their respective costs of this appeal. These shall be the orders of the Court.

ADAMU JAURO, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, HABEEB ADEWALE OLUMUYIWA ABIRU, JCA, just delivered.

I agree with his reasoning and conclusion that the appeal is meritorious and ought to be allowed. I therefore allow the appeal and abide by the consequential orders made in the lead judgment. Appeal allowed.

UCHECHUKWU ONYEMENAM, J.C.A.: I had the advantage of reading before now the leading judgment of my learned brother HABEEB ADEWALE OLUMUYIWA ABIRU, JCA. I agree with the reasoning and conclusion reached thereat in finding some merit in the appeal. I hereby allow the appeal for same reasons.

I also set aside the judgment of the High Court of Plateau state delivered on 17th October, 2008 by Y.G. Dakwak, J. in Suit No. PLD/J286/2006. I abide by all the consequential orders including that on costs.

Appearances:

 

Appearances

  1. M. G. Pwul with him, Nantok Dashwar, K.M.G. Pwul, J. J. Gilbert, P.J. Miner and P.Y. Bawa For Appellant

 

AND

  1. L. Jemcat with him, D.G. Shut, F. C. Jonathan and L.K. Salla for 1st Respondent.
    U. U. Na’ayya for 2nd to 5th Respondents. For Respondent

 

 

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