OMENKA MATHEW ODE & ORS. V. ATTORNEY GENERAL OF BENUE STATE & ORS.
(2011)LCN/4648(CA)
In The Court of Appeal of Nigeria
On Thursday, the 23rd day of June, 2011
CA/J/254/09
RATIO
GROUND OF APPEAL: WHETHER A SINGLE GROUND OF APPEAL CAN BE SPLITTED INTO SEVERAL ISSUES
The rule is that a number of grounds may raise a single issue for determination but a single ground of appeal cannot be split into several issues. That would amount to proliferation of issues, which the courts have always frowned upon. See: Leedo Presidential Hotel Ltd. Vs B.O.N. (Nig.) Ltd. (1993) 1 NWLR (269) 334 at 347 A-G: Agbetola Vs Lagos State Executive Council (1991) 4 NWLR (188) 664: U.B.A. Vs Mode (Nig.) Ltd. (2001) 13 NWLR (730) 335. In a recent decision of the Supreme Court in: Okonobor & Ors. Vs Edegbe & Sons Trans. Co. Ltd. &Anor. (2010) 2 – 3 SC (Part II) 1 @ 8 lines 24 – 32. His Lordship Onnoghen, JSC held: “It is not in dispute that the appellants filed a single ground of appeal out of which their counsel formulated two issues for determination It is settled law that proliferation of issues is unacceptable in our appellate Courts. While counsel is permitted to formulate an issue out of a ground of appeal, he cannot formulate two issues out of a ground of appeal as in the instant appeal. See Ogovi Vs Umagba (1995) 9 NWLR (419) 283 @ 297.The issues are therefore incompetent and liable to be struck out.” See also: Okwuagbala & Ors. Vs Ikwueme & Ors. (2010) 12 SC (Part IV) 1 @ 9 lines 6 – 16. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
RULES OF INTERPRETATION: HOW THE WORDS IN A STATUTE ARE TO BE INTERPRETED
The law is settled that in the interpretation of statutes, the whole of the statute must be read in order to determine the meaning and effect of the words being interpreted. See: Fed. Ministry of Health & Anor. Vs Comet Shipping Agencies Ltd. (2009) 4 – 5 SC (Pt.II) 110 @ 128 – 129; Eze Akunerziri vs. Chief Okenwa & Ors. (2000) 12 SC (Pt.11) 75; (2000) 15 NWLR (691) 526 @ 553; A.C. & Anor. vs. INEC (2007) 6 SC (PT.11) 212; (2007) 12 NWLR (1048) 222 @ 257 – 260; Bakare Vs Nig. Railway Corporation (2007) 7 – 10 SC 1 @ 21. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
INTERPRETATION OF STATUTE – SECTION 97 (1) (E) & (F) AND (2) (C) OF THE EVIDENCE ACT: STATUTORY PROVISION OF SECTION 97(1)(E) & (F) AND (2)(C) OF THE EVIDENCE ACT WITH REGARD TO WHEN SECONDARY EVIDENCE MAY BE GIVEN
Section 97(1)(e) & (f) and (2)(c) of the Evidence Act provides: 97. (1) Secondary evidence may be given of the existence, condition, or contents of a document in the following cases – (e) when the original is a public document within the meaning of Section 109 of this Act; (f) when the original is a document of which a certified copy is permitted by this Act or by any other law in force in Nigeria, to be given in evidence. (2) The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of subsection (1) of this section is as follows – (c) in paragraph (e) or (f) a certified copy of the document, but no other kind of secondary evidence is admissible.” PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
INTERPRETATION OF STATUTE – SECTION 109 (A) (II) AND (B) OF THE EVIDENCE ACT: STATUTORY PROVISION OF SECTION 109(A)(II) AND (B) OF THE EVIDENCE ACT AS REGARDS WHAT CONSTITUTES A PUBLIC DOCUMENT
Section 109(a)(ii) and (b) of the Evidence Act provides: 109. The following documents are public documents – (a) documents forming the acts or records of the acts – (ii) of official bodies and tribunals, and (b) public records kept in Nigeria of private documents. I am of the view that the various memoranda submitted to the Commission are public documents within the meaning of Section 109(a)(ii) of the Evidence Act. PER KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.
JUSTICES
KUDIRAT M.O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
Between
OMENKA MATHEW ODE ESQ (SUING FOR HIMSELF AND ON BEHALF OF INDIGENES OF OGENGENG UKPA COMMUNITY OF OJU LOCAL GOVERNMENT AREA OF BENUE STATE OF NIGERIA Appellant(s)
AND
1. ATTORNEY GENERAL OF BENUE STATE
2. GOVERNOR OF BENUE STATE
3. COMMISSIONER FOR EDUCATION BENUE STATE
4. COLLEGE OF EDUCATION OJU
5. JUSTICE GEORGE ULOKO (RTD)
6. MRS JANET ADZENGA
7. MR MATHIAS AUDU
8. BARRISTER JOHN TYOKEGH
9. DR JACOB IBA OMENKA Respondent(s)
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment): By an Originating Summons filed on 22/6/09 at the High Court of Benue State, Makurd Division, the appellant herein, for himself and on behalf of indigenes of Ogengeng-Ukpa Community of Oju Local Government Area of Benue State sought the following reliefs against the respondents:
a. “A declaration that section 19 and 22 of the Commissions of Inquiry Law, Cap. 40 Vol. 1 Laws of Benue state of Nigeria 2004 are unconstitutional, null and void being inconsistent with sections 6, 36 and 46 of the Constitution of the Federal Republic of Nigeria 1999, Cap. C23, Laws of the Federation of Nigeria 2004 and amounts to a breach of the fundamental rights of the applicant as enshrined in sections 6, 36 and 46 of the Constitution.
b. A declaration that the 2nd Respondent lacks the power to constitute an administrative Commission of Inquiry with such absolute powers as contained in the Commission of Inquiry Law Cap. 40 Laws of Benue State 2004, the conducts (sic) and actions of whose members cannot be questioned or challenged in any court of law and the outcome of which inquiry cannot be challenged by the applicant or any person affected thereby except at the instance of the 1st respondent having regard to sections 6, 36 and 46 of the Constitution of the Federal Republic of Nigeria 1999.
c. A declaration that the Administrative Commission of Inquiry set up by the 2nd Respondent as contained in and vide Benue State Gazette No 14 of 2009 with the 5th Respondent as chairman, the 6th Respondent as secretary and the 7th to 9th Respondents as members is illegal and all actions and/or steps taken in furtherance of same null, void and of no effect whatsoever same having not being constituted in a manner to secure its independence and impartiality as required under section 36 of the constitution of the Federal Republic of Nigeria 1999.
d. A declaration that even if the relevant sections or provisions of the commissions of Inquiry Law Cap. 40 Laws of Benue State of Nigeria 2004 complained of herein are not unconstitutional and the Administrative Commission of Inquiry on C.O.E. Oju students’ crisis set up there under by the 2nd respondent is lawful, the conduct of the 5th – 9th respondent as members of the commission as well as the submissions of Mr S.T Sule on 29/04/2009 as the commission’s lawyer (which they adopted, ignored and/or became indifferent about) prejudging the issues before the commission in favour of one of the parties namely; the Tiv students, against the applicants and his people before parties are heard grossly undermine and/or erodes the oath of faithfulness and impartiality of members of the commission taken pursuant to section 5 of the said law; and as such imputes bias and lack of impartiality to the members and renders the membership of the said Commission as presently constituted incompetent to continue to act as members or adjudicate further over any matters affecting the applicant or relating to his rights and those of his community before the Commission.
e. An order dissolving the Administrative Commission of Inquiry on C.O.E. Oju students crisis set up by the 2nd respondent by virtue of Benue state Gazette No. 14 of 2009 pursuant to the Commissions of Inquiry Law Cap. 40 Laws of Benue State of Nigeria 2004, same being illegal and unconstitutional having regard to sections 6, 36, and 46 of the constitution of the Federal Republic of Nigeria 1999.
f. A declaration that the compulsory acquisition of vast areas of the Applicant’s personal lands and those of other indigenes and/or members of his Ogengeng-Ukpa Community of Oju Local Government Area of Benue State by the 1st to 3rd Respondents as campus of the 4th Respondent without compensation to date is illegal and/or unlawful and amounts to a breach of the fundamental rights of the applicant under section 44 of the 1999 constitution of Nigeria.
g. The sum of N10,000,000,000.00 (Ten Billion Naira) only in favour of the applicants against the 1st to 3rd Respondents, jointly and severally, as compensation for the applicants’ land and those of his Ogengeng-Ukpa Community compulsorily acquired as campus of the 4th Respondent.
h. The sum of N500,000.00 (sic) (Five Hundred Million Naira) only against the 1st to 4th Respondents, jointly and severally, in favour of the applicants, as damages for damage variously suffered by the applicant and other members of his Ogengeng-Ukpa Community of Oju Local Government Area of Benue State as a result of the 4th Respondent’s student’s cum staff actions and riot of 03/03/2009.”
The summons was supported by a statement setting out the grounds for the summons and the reliefs sought. It was also supported by an affidavit verifying the facts with exhibits marked A – H attached thereto. The respondents filed a 5 paragraph counter affidavit dated 29/6/09 to which the appellant filed a 4 paragraph reply dated 7/7/09. Further exhibits were annexed to the reply and marked J, K and L respectively. The parties submitted written addresses in support of their respective positions. In a considered judgment delivered on 23/7/09 the learned trial Judge dismissed all the appellant’s claims. Being dissatisfied with the decision he filed a notice of appeal dated 12/8/09 containing 10 grounds of appeal.
In compliance with the Rules of this Court the parties duly filed and exchanged briefs of argument. At the hearing of the appeal on 9/6/2011, O.M.A. ODE ESQ. appearing in person adopted and relied on his brief of argument dated 22/12/09 and filed on 28/12/09. He urged the court to allow the appeal and grant all the reliefs sought. E.I. YANGE ESQ. Principal State Counsel I, Ministry of Justice, Makurdi, Benue State adopted and relied on the respondents’ brief dated 9/11/2010, which was fifed pursuant to an order of this court made on 4/11/2010. He urged the court to dismiss the appeal.
The appellant distilled the following issues for determination from the ten grounds of appeal:
1. Whether a party claiming a declaration in a land matter to nullify official act taken against his interest as in the instant case, is required to establish title to the land as a condition precedent and if not, whether the learned trial judge was right when he held that for the plaintiff/appellant to be entitled to relief (f) and (g) as contained in paragraph 28 of his state of facts in support of the originating summons in this suit, how he and the community he represents came to own or inherit the land in question and whether the plaintiff is himself a chief or leader of the community must be proved.
In other words, whether the identity or the title to the land in question or the status of the plaintiff and his community was an issue before the court in this suit, particularly when the learned trial judge had held earlier in the same judgment (at paragraph 3 page 265 of the records) that the plaintiff and his community are competent to institute this action, (Grounds 1 & 2)
2. Whether having regard to Exhibits C, E, F, and G before the trial court, which all accused members of the appellant’s Ogengeng-Ukpa Community of Oju Local Government area of Benue State of such grave criminal wrong-doings as murder, illegal possession of dangerous weapons and wanton destruction of properties, an Administrative commission of Inquiry of the nature appointed by the 2nd Respondent herein with 5th to 9th respondents as members (not being a Judicial Commission or a Court of Law) can try by way of inquiry not only to identify any person or group of persons connected and make necessary recommendations but also apportion blame as appropriate as contained in paragraph 5(c) of enabling instrument, namely the Benue State Gazette No: 14 of 2/4/09 – (Ground 3).
3. Whether as held by the learned trial judge sections 19 and 22, particularly section 22 of the Commissions of Inquiry Law Cap 40 Laws of Benue State of Nigeria 2004 are or is not unconstitutional having regard to sections 1, 6, 36, 46, and 272(1) of the Constitution of the Federal Republic of Nigeria 1999 – (Ground 4).
4. Whether the learned trial judge was right when he declined to consider or act on the plaintiff’s affidavit evidence in support of his originating summons when same were not challenged or controverted by the defendants and went ahead to dismiss the appellant’s claim in its entirety, holding that there was no evidence before him in proof of the originating summons:- (Grounds 5 and 6).
5, Whether, in the absence of the record of the proceedings of the commission being placed before the court as held by the learned trial judge, there was no evidence before the court to support the claim of bias or a likelihood of bias against the members of the commission as claimed by the plaintiff in the suit having regards to the unchallenged affidavit evidence of the plaintiff on this point.- (Grounds 5 and 6).
6. Whether Exhibit A-L attached to the affidavit verifying the facts relied on by the plaintiff/appellant in this case are public document within the meaning of the law to be certified before same can be considered by the court as held by the learned trial judge in his judgment of 23/07/2009- (Grounds 7 and 8).
7. Whether having regard to section 149(d) of the Evidence Act and all the circumstances of this case, the learned trial judge was right when he resolved against the plaintiff the failure of the defendants/respondents to produce the record of the proceedings of the sitting of the Commission on 29-04-2009 complained of by the plaintiff as requested and went ahead to dismiss the plaintiff’s claim on this ground- (Ground 7).
8. Whether the learned trial judge was correct when as his reason for dismissing the plaintiff’s claim as contained in relief (h) in paragraph 28 of the statement in support of the originating summons he held that same is for “general damages for destruction of economic trees whose names, nature and economic values are not pleaded or proved’ having regard to the facts before the court, particularly paragraphs 15 and 16 of the plaintiff’s main affidavit and paragraph 3(h) of his reply affidavit taken together with Exhibit ‘L’ attached to the reply affidavit – (Grounds 9 and 10).
The respondents raised one main issue for determination distilled from grounds 3, 5 and 6 of the notice of appeal thus: “Whether there was any substance in the plaintiff/appellant’s case before the trial court to have warranted the grant of any of his reliefs. ”
Alternatively they adopted the appellant’s issues with some modifications.
I have examined the issues formulated by the appellant. They appear to be unwieldy, argumentative and prolix. Issues 4 and 5 are both distilled from grounds 5 and 6 of the notice of appeal. Issue 6 is distilled from grounds 7 and 8 while issue 7 is also distilled from ground 7. The rule is that a number of grounds may raise a single issue for determination but a single ground of appeal cannot be split into several issues. That would amount to proliferation of issues, which the courts have always frowned upon. See: Leedo Presidential Hotel Ltd. Vs B.O.N. (Nig.) Ltd. (1993) 1 NWLR (269) 334 at 347 A-G: Agbetola Vs Lagos State Executive Council (1991) 4 NWLR (188) 664: U.B.A. Vs Mode (Nig.) Ltd. (2001) 13 NWLR (730) 335. In a recent decision of the Supreme Court in: Okonobor & Ors. Vs Edegbe & Sons Trans. Co. Ltd. &Anor. (2010) 2 – 3 SC (Part II) 1 @ 8 lines 24 – 32. His Lordship Onnoghen, JSC held:
“It is not in dispute that the appellants filed a single ground of appeal out of which their counsel formulated two issues for determination. It is settled law that proliferation of issues is unacceptable in our appellate Courts. While counsel is permitted to formulate an issue out of a ground of appeal, he cannot formulate two issues out of a ground of appeal as in the instant appeal. See Ogovi Vs Umagba (1995) 9 NWLR (419) 283 @ 297.The issues are therefore incompetent and liable to be struck out.”
See also: Okwuagbala & Ors. Vs Ikwueme & Ors. (2010) 12 SC (Part IV) 1 @ 9 lines 6 – 16.
In the instant case, having already formulated issue 4 from grounds 5 and 6 of the notice of appeal, issue 5 formulated from the same grounds of appeal is incompetent and hereby struck out. Similarly issue 6 having been formulated from grounds 7 and 8 of the notice of appeal, issue 7 also formulated from ground 7 is also incompetent and accordingly struck out. The appellant is thus left with issues 1, 2, 3, 4, 6 and 8. The issues are hereby re-numbered issues 1-6 and modified as follows:
1. Whether proof of the identity of the land or title thereto by the appellant and his community was necessary to enable them obtain a declaration in their favour for compensation and damages for compulsory acquisition of their land.
2. Whether the terms of reference of the Commission of Inquiry as contained in paragraph 5(c) of the Benue State Gazette No. 14 of 2/4/09 amounts to usurpation of the functions of a court of law.
3. Whether Sections 19 and 22 of the Commissions of Inquiry Law Cap. 40 Laws of Benue State of Nigeria 2004 are unconstitutional having regard to Sections 1, 6, 36, 46 and 272(1) of the Constitution of the Federal Republic of Nigeria 1999.
4. Whether the learned trial Judge was right when he declined to consider or act on the plaintiff’s evidence in support of his originating summons.
5. Whether Exhibits A – L attached to the affidavit verifying the facts relied on by the appellant are public documents to be certified before they could be considered by the Court.
6. Whether the learned trial Judge rightly dismissed the claim for damages as contained in paragraph 28(h) of the appellant’s reliefs.
Before going into the merits of the appeal, it is necessary to state briefly the facts that gave rise to the originating summons before the lower court. From the record of proceedings and the briefs of the parties the genesis of this matter stems from the alleged compulsory acquisition by the Benue State Government of a vast tract of land said to belong to the Ogengeng-Ukpa Community of Oju Local Government Area of the State to which the appellant belongs as campus of the Benue State College of Education. It is the appellant’s contention that since the establishment of the college there has been an uneasy calm between the members of the host community (Igede tribe) and the college resulting in several misunderstandings. The most recent was an incident that occurred on or about 3/3/09 involving some students of the College, which spread to the host community, A student allegedly got injured in the ensuing fracas and several properties belonging to the villagers were destroyed. Some Tiv staff of the College wrote a petition to the State Governor requesting that a “high powered commission of inquiry” be set up to look into the various allegations of criminal wrong doing. A commission of inquiry was duly set up under the provisions of the Commissions of Inquiry Law of Benue State Cap 40 of 2004. The appellant, members of his community and other interested parties submitted memoranda to the commission. However at the preliminary stages of the inquiry the appellant challenged the composition of the Commission on the ground that the Igede tribe had only one representative while the Tiv and Idoma tribes had two representatives each. He alleged that the members of the Commission had exhibited bias and lack of fair hearing in the conduct of the proceedings and wrote a letter to the Governor requesting that the membership of the commission be reconstituted. When he did not receive a response to his request he and his community withdrew from further participation in the proceedings and filed the originating summons already referred to earlier in this judgment. As noted earlier, all his reliefs were dismissed, hence this appeal.
Issue 1
Whether proof of the identity of the land or title thereto by the appellant and his community was necessary to enable them obtain a declaration in their favour for compensation and damages for compulsory acquisition of their land.
In support of this issue, the appellant contended that the claim before the court was not for a declaration of title to the land in respect of which compensation was being claimed. He submitted that how he and the community he represents came to own or inherit the land is not a condition precedent to the grant of reliefs in paragraph 28(f) and (g) of the originating summons. Relying on the case of Ononuiu & Anor. Vs A.G. Anambra State & Ors. (2009) 8 SCM 143 @ 161 – 165, he submitted that a holder or occupier of land, whether developed or undeveloped in an area not in an urban area, under a recognized customary tenure before the commencement of the Land Use Act in March 1978 would continue to have the land vested in him and enjoy such rights and privileges on the land as if a customary right of occupancy had been granted him by the local government of that area. He argued that it follows that no one (including the government) can deprive a holder or occupier of such land unless the land is acquired by the government for overriding public purpose in strict compliance with the provisions of the Land Use Act and compensation paid in respect of such acquisition by virtue of Section 28(4) of the said Act. He submitted that payment of compensation is a condition precedent to the validity of the acquisition. He relied on: Estate of General Sanni Abacha Vs A.K. Spiff (2009) 3 SCN 1 @ 24 – 25.
He submitted further that even if title were in issue (not conceded), there was sufficient unchallenged or admitted evidence before the learned trial Judge that the land for which compensation was claimed was vested in the appellant and other members of his community upon which reliefs (f) and (g) of the claim could have been granted. He submitted that there was no dispute as to the identity of the land, as both parties knew and referred to it as the campus of the 4th respondent. He submitted further that it is not in dispute that the 1st – 3rd respondents have not paid compensation for the land so acquired. He submitted that in paragraph 3(a) – (g) of his reply affidavit filed on 7/7/09, sufficient description of the location, ownership and identity of the land was given. He stated that he also deposed to facts establishing how he came to inherit the portion he claims as his own and the use to which it was put before the acquisition. He noted that the averments were not challenged by a further counter affidavit. He submitted that the learned trial Judge ought to have accepted the averments as proved. He referred to: Olafimihan Vs Nova Lay-Tech Ltd. (1998) 4 NWLR (547) 608 @ 621 C – D: Omoregbe Vs Lawani (1980) 3 – 4 SC 108: Nigerian Maritime Services Vs Afolabi (1978) 2 SC 79: Pascutto Vs Adecentro Nig. Ltd. (1997) 11 NWLR (529) 467 @ 487 – 488. He stated further that the respondents admitted that the land belongs to the indigenes of Ogengeng-Ukpa Community but contended that it was acquired by negotiations with “concerned indigenes”. He submitted that negotiations not accompanied by offer, acceptance and consideration, could not amount to a valid contract in law and that any attempt to take possession of another’s property without due compliance with these requirements would be illegal. He relied on: Ghukwuma Vs Ifelove (2008) 12 SCM (Pt 2) 425 @ 452. He submitted that the respondents had the burden of proving the said negotiations, which they failed to do. He urged the court to hold that his case was unchallenged in this regard and therefore proved. He relied on: Odukwe Vs Ogunbivi (1998) 6 SC 72 @ 79 line 40 – 82 line 15. He submitted that for the acquisition to be valid there must be strict compliance with Section 28 of the Land Use Act and that the onus was on the respondents to prove same. He referred to: Estate of General Sanni Abacha (deceased) Vs. A.K. Spiff (supra).
In reply to the above submissions, learned counsel for the respondents submitted that relief (g) is tied to relief (f) and that title to and identity of the land is definitely in issue. He submitted that declaratory reliefs call for the exercise of discretion by the court in favour of the applicant who has the duty of proving to the court’s satisfaction why the discretion should be exercised in his favour. He referred to: Ayoola Vs. Yahaya (2004) 5 FWLR (209) 927 @ 945 – 946: Williams Vs Hope Rising Voluntary Funds Society (1982) 1- 2 SC 145 @ 152. He submitted that in the instant case the court had to be satisfied as to the identity of the land and title thereto before deciding what damages, if any, to award in favour of the appellant and his community. He relied on: Ewo Vs Ani (2004) 4 FWLR (207) 513 @ 530. He submitted further that long possession, which the appellant seems to rely on, is not proof of ownership. He referred to: Kvari Vs Alkari (2001) 6 NSCQR (Pt. 2) 819 @ 826. He contended that even if the identity of the land were established, no unexhausted improvements were shown to be on the land as required by Section 29(1) of the Land Use Act.
The main issue in contention here is whether the identity of the land compulsorily acquired by the 1st – 3rd respondents and title thereto were in issue before the lower court to ground the claim for compensation and damages. It is the appellant’s contention that the identity of the land acquired was not in dispute and that the 1st – 3rd respondents had conceded the fact that the land belonged to the appellant and his Ogengeng-Ukpa Community. The respondents on the other hand are of the view that title to the land must be established in the same manner as in an action for declaration of title. Their contention is that the appellant failed woefully in this regard. A good starting point for the determination of this issue is an examination of the affidavit evidence before the court. In paragraphs 3, 4 and 8 of the appellant’s affidavit verifying the facts relied upon in the origination summons, he averred as follows:
3. That the applicant is a legal practitioner and a prominent indigene of Ogengeng-Ukpa Community of Oju Local Government Area of Benue State whose personal land and vast areas of land belonging to other members of his said community were compulsorily acquired by the 2nd respondent as campus of the 4th respondent without compensation. He has a personal memo before the Administrative Commission of Inquiry set up by the 2nd respondent, the subject matter of this application, and he is being represented by counsel. At the same time he appears as a counsel for his Ogengeng-Ukpa community in respect of their own memo also before the commission. These two memos are attached to the affidavit verifying the facts relied upon in this application and marked as Exhibits A and B respectively.
4. That the applicant and members of his said Ogengeng-Ukpa Community are citizens of Nigeria and as such their rights of access to court, fair hearing and right to own property are guaranteed, enshrined and protected by sections 6, 36, 44 and 46 of the Constitution of the Federal Republic of Nigeria, 1999.
8. That the mandate of the said Administrative Commission of Inquiry is to took into the 4th respondent’s students crisis of 03-03-09 in which the students of the 4th respondent demonstrated violently within and outside the school campus and extended same to the applicant’s host Ogengeng-Ukpa Community, where they destroyed, vandalized and burnt several properties of the applicant and those of his brothers and other community members and/or indigenes including houses, cars, motorcycles, power generating sets etc etc and in some cases looted shops and other business premises of the village community members.”
In reply to the above averments, the respondents in paragraph 4(b) of their counter affidavit averred thus:
4(b) That contrary to the depositions in paragraph 3 & 8 of the affidavit the land for campus of the defendant was not compulsorily acquired but through negotiation with the concerned indigenes; and that no property of either the applicant or his community members was destroyed, vandalized or burnt by the 4th defendant’s students’ crisis of 3rd March, 2009. (Emphasis mine).
The appellant filed a reply to the counter affidavit. Paragraph 4(b) (h) of the said reply are relevant and are reproduced hereunder:
b. “That the land acquired by the 1st to 3rd defendants as campus of the 4th defendant without compensation as stated by the plaintiff belonged to specific members of the Ogengeng-Ukpa village with the plaintiff’s father, the late Chief Ichaji Ode Akata, as the largest stake holder therein.
c. That more than half of the land area today known as the campus of the 4th defendant was the said plaintiff’s father’s farm lands which the plaintiff as the eldest and only surviving male child of his father inherited from his said late father Ichaji Ode Akata upon his death.
d. That the mid land was even originally called by the said plaintiff’s father’s name (as the undisputed owner thereof all his life time and after) as either “Ogbodolchaji’, meaning Ichaji’s hill or “Opi-Eru-OjwoNy’ Ichaji’ meaning Ichaji’s Ojwo farm lands and the plaintiff inherited same and has always had quiet and undisturbed possession thereof until same was acquired by the 1st to 3rd defendants as campus of the 4th defendant without compensations to date as stated herein.
e. That other individuals in the community who also owned lands adjoining that of the plaintiff in the said place today known as the campus of the 4th defendant included uncles of the plaintiff such as Udeh Akata, Egbere Okebe, Ijiba Ogbaji etc and none of these have been compensated either.
f. That the portion of the said acquired land belonging to the plaintiff’s father which the plaintiff inherited upon his said father’s death stretches over a distance of 2 kilometers in width and 3 kilometers in length, and constitutes about half of the whole land area of the campus of the 4th defendant – and same (that is, the plaintiff’s personal land so acquired) is bounded by the Oju-Awajir Road on the Western side, the Oba – Olujwo stream (which runs through and divides the school compound into equal parts) on the East and South and the Okinka stream to the North.
g. That the totality of the land area of the said school campus which stretches over several kilometers in dimension belongs to specific and identifiable members of the plaintiff’s Ogengeg-Ukpa village (the plaintiff inclusive) with each land owner therein knowing his specific portion before the said acquisition by the 1st to 3rd defendants and not to any faceless group described by the Defendants as “concerned indigenes” with whom any form of “negotiation’ without compensations could have been held, imagined or even contemplated and/or waived without the plaintiff’s knowledge. Nothing of that nature ever existed as stated in paragraph 4(b) of the counter-affidavit and I hereby challenge the defendants to produce any credible evidence to that effect or in support of that averment before this honourable court.
h. That contrary to the averments in paragraph 4(d) of the counter affidavit, several properties of the Plaintiff and/or his brothers were destroyed by the rampaging students of the 4th Defendant, a comprehensive list of which items was submitted to the commission vide the letter dated 06/04/09 as a follow up to the Plaintiff’s earlier memo (Exhibit A in his main affidavit herein) to that effect. A copy of the said list is attached hereto and marked as Exhibit L.”
The respondents did not file a further counter affidavit to challenge any of the above averments. A careful perusal of the above averments reveals that there was no dispute as to the identity of the land acquired by the 1st – 3rd respondents, whether by negotiation or otherwise. Secondly the averments in the reply to the counter affidavit contain facts relating to the portion of the land belonging to the appellant such as its boundaries, dimensions and his root of title. He averred that he inherited the land from his late father, Ichaji Ode Akata, who had been the undisputed owner throughout his lifetime. It is averred that the totality of the land acquired by the 1st – 3rd respondents belongs to identifiable members of the Ogengeng- Ukpa village. The respondents do not deny the fact that the College of Education, Oju is built on land belonging to the Ogengeng-Ukpa community. Their contention is that it was not compulsorily acquired but through negotiations with “concerned indigenes” of the community. Notwithstanding the appellant’s averment that owners of the land are identifiable, the respondents did not depose to any facts as to the identity of those they negotiated with and what the terms of the negotiations were.
In the case of: Ononuju & Anor. Vs A.G. Anambra State & Ors. (2009) 8 SCM 143 @ 161 – 165: (2009) 4 – 5 SC (Part 1) 163 @ 188 – 189 cited by the appellant, the Supreme Court in considering whether proof of title is in issue in a claim for compensation for compulsory acquisition of land per Aderemi, JSC opined thus:
“All I need to say is that on the authority of “Dzungwe” cited above, the plaintiffs/appellants need not go further to prove his title to the land beyond the averments I have extracted from the pleadings. When this same point was taken at the court below, salami, JCA, in his dissenting judgment reasoned thus: –
“The appellants, strictosensu, did not seek for a declaration of title in their claim before the trial court. The claims of the appellants for declaration of nullification of certain actions taken by Government Officials, which they consider inimical to their interests. Even though the issue of title might be incidental to the claim, it is not a matter for a declaration of title for that case, it would not be required of the plaintiffs to establish their title to the land in dispute, especially so when the respondents were not seriously challenging their title to the land.”
I endorse the above holding of the learned jurist. I could not agree more.” (Emphasis mine)
His Lordship, Aderemi, JSC continued as follows:
“As I have said above, on the state of the pleadings the plaintiffs/appellants were holders or occupiers of the land in dispute prior to the promulgation of the Land Use Act; they therefore had the land in dispute properly vested in them. It follows that no one, including the Government can deprive a holder or occupier of a parcel of land unless the land is acquired compulsorily for overriding public interest or for public purpose by the Local Government or State Government. See Section 28(1), (2) and (3) of the Land Use Act; and by virtue of Section 28(4) of the said Act, payment of compensation is also a condition precedent to the validity of such acquisition. See; Ogunleye Vs Oni (1990) 4 SC (Part 1) 84; (1990) 2 NWLR (135) 745.”
The purport of the above is that in so far as the respondents did not challenge the title of the appellant and his community to the land on which the College of Education was built, the onus was on the 1st – 3rd respondents to show that the land was properly acquired in accordance with the provisions of Section 28 of the Land Use Act. See: The Administrators/Executrix of the Estate of General Sanni Abacha (deceased) Vs Samuel David Eke-Spiff & Ors. (2009) 3 SCM 1 @ 24 – 25: (2009) 2 – 3 SC (Pt II) 93 @ 115 – 118.They failed to do so. This issue is accordingly answered in the negative and resolved in favour of the appellant.
Issue2
Whether the terms of reference of the Commission of Inquiry as contained in paragraph 5(c) of the Benue State Gazette No. 14 of 2/4/09 amounts to usurpation of the functions of a court of law.
It is the contention of the appellant that Exhibit C, the complaint forwarded to the 2nd respondent by the Tiv staff of the 4th respondent which led to the setting up of the commission of inquiry, contained allegations of criminal wrong doing including murder against members of the Ogengeng-Ukpa community and therefore the administrative commission so set up was not competent to try the complaints by way of inquiry. He referred to Exhibits C, F and G attached to the affidavit verifying the facts and urged the court to consider them in conjunction with paragraph 5 of the Benue State Gazette No. 14 of 2009 at pages 9 – 11 of the Supplementary Record. Learned counsel argued that carrying out its function of identifying persons connected with the commission of any crimes and apportioning blame as appropriate would necessarily involve a criminal trial procedure, which an administrative commission of inquiry is not competent to undertake. He referred to: Dr. Sofekun Vs Akinvemi & Ors. (1980) 5 – 7 SC 1; Baba Vs. N.C.A.T.C. (1991) 5 NWLR (193) 388 @ 415.
In reply to the above submissions, learned counsel for the respondents submitted that the task of the commission is investigative and fact finding with a view to making recommendations. He submitted that it does not amount or extend to the trial of any person or group. He submitted that all persons appearing before the commission do so as witnesses and not as accused persons. He referred to Section 7(1)(a) of the Commissions of Inquiry Law. He referred to: Adeniyi Vs Governing Council of Yaba College of Technology (1993) 6 NWLR (300) 426 @ 453. He submitted that no charges have been brought against anyone and that the commission has no powers to indict anyone for criminal offences. He referred to Sections 11 and 12 of the Law, which empowers the commission to impose penalties only “upon summary conviction”. He argued that “summary conviction” refers to conviction by a court of criminal jurisdiction. He compared the provision to Section 13(1)(a) of the Law, which provides that the commission may impose a fine of N1, 000.00. He submitted that where a statute confers specific powers on any person or authority for the performance of certain acts or duties, he must act in strict compliance with the powers granted by the statute and may not exceed same, He referred to: Emuze vs. University of Benin (2003) FWLR (170) 1411 @ 1426 – 1427; Anya v. Iyayi (1988) 3 NWLR (305) 290. He submitted further that Section 18 of the Law requires the commission to furnish the Governor with an interim or full report in writing of their proceedings and recommendations. He stated that it is the Governor who would give effect to any recommendations made. He contended that the duty of the commission does not extend or purport to extend to the determination of the rights and obligations of any person.
The law is settled that in the interpretation of statutes, the whole of the statute must be read in order to determine the meaning and effect of the words being interpreted. See: Fed. Ministry of Health & Anor. Vs Comet Shipping Agencies Ltd. (2009) 4 – 5 SC (Pt.II) 110 @ 128 – 129; Eze Akunerziri vs. Chief Okenwa & Ors. (2000) 12 SC (Pt.11) 75; (2000) 15 NWLR (691) 526 @ 553; A.C. & Anor. vs. INEC (2007) 6 SC (PT.11) 212; (2007) 12 NWLR (1048) 222 @ 257 – 260; Bakare Vs Nig. Railway Corporation (2007) 7 – 10 SC 1 @ 21. The commission’s terms of reference are set out in paragraph 5 of the Benue State of Nigeria Gazette No. 14 of 2009 as follows:
5. The Commission shall, with all convenient speed:
(a) Inquire into and determine the immediate and remote causes of the Students Disturbances that occurred at the College of Education Oju on 3rd March 2009.
(b) Ascertain the human and material losses or damage done or suffered, by whom and the estimated cost of any property destroyed.
(c) Identify any person or group of persons behind the disturbances howsoever connected and apportion blame as appropriate.
(d) Recommend measures to resolve the issues involved so as to ensure reign of peace in the College.
(e) Consider any other matter relevant or incidental to the disturbances and recommend measures to prevent similar occurrences in the institution in the future.”
Also relevant in this regard are Sections 7(1)(a) – (k), (2) and 18 of the Commissions of Inquiry Act Cap. 40 Laws of Benue State of Nigeria 2004, which sets out the powers of the Commission as follows:
7. (1) “The Commission shall have the following powers:
(a) to procure all such evidence, written or oral, and to examine all such persons as witnesses as the Commissioners may think it necessary or desirable to procure and examine;
(b) to require the evidence, whether written or oral of any witness to be made on oath or declaration, such oath or declaration to be that which could be required of the witness if he were giving evidence in a Magistrate Court;
(c) to summon any person in Nigeria to attend any meeting of the Commission to give evidence or produce any document or other thing in his possession and to examine him as a witness or require him to produce any document or other thing in his possession, subject to all just exceptions;
(d) to issue a warrant to compel the attendance of any person who, after having been summoned to attend, fails to do so, and does not excuse such failure to the satisfaction of the Commissioners, and to order him to pay all costs which may have been occasioned in compelling his attendance or by reason of his refusal to obey the summons;
(e) to admit any evidence, whether written or oral, which might be inadmissible in civil or criminal proceedings;
(f) to admit or exclude the public or any member of the public from any meeting of the Commissioners;
(g) to admit or exclude the press from any meeting of the Commissioners;
(h) to award any person who has attended any meeting of the Commissioners, including any interpreter appointed under Section 9 of this Law such sum or sums as in the opinion of the Commissioners may have been reasonably expended by him by reason of such attendance;
(i) to enter upon any land, for the purpose of obtaining evidence or information required by, or which may be of assistance to, the commissioners;
(j) to do any such thing or issue any such order or make any recommendation as in the opinion of the commissioners is necessary for the execution of the commission;
(k) to do all such other things whether or not incidental to the foregoing powers, as may advance the purposes of the commission.
(2) The Commissioners shall withhold the exercise of any power under this Section if the President or Governor of a State shall certify to them that the exercise of such a power would in his opinion encroach unduly upon the territorial or other jurisdiction of the Government of the Federation or of such a State.
18. The Commissioners shall make and furnish to the Governor an interim or full report in writing of their proceedings and shall record an opinion and reasons leading to their conclusions, Any Commissioner dissenting from the conclusions, or any part thereof, shall note the reason for such dissent.” (Emphasis mine).
In making his submissions regarding the terms of reference, the appellant isolated and referred to paragraph 5(c) alone. It was thus read out of con. A careful reading of the entire paragraph 5 in conjunction with Sections 7 and 18 of the Commissions of Inquiry Act shows that the commission’s duty is not to try any alleged offenders but to investigate and ascertain what led to the disturbances, those who might have been responsible and to furnish a report and make necessary recommendations to the Governor to prevent future occurrences and to ensure peaceful co-existence in the future. In determining the immediate and remote causes of the incident that occurred on 3/3/09, the commission was bound to reach a conclusion one way or the other as to the persons or group of persons who might have instigated the misunderstanding and the ensuing violence. The terms of reference did not authorize the commission to convict or punish anyone. Its mandate was to submit a report of its findings and to make recommendations. There was no charge before the commission and no one invited to respond to allegations against them. All those who had information to present to the commission were to do so by way of memoranda. Every person testifying before the commission is described in Section 7 of the Act as a witness. Furthermore, the commission was bound to operate within the confines of its terms of reference. I am therefore unable to agree with the appellant that the commission of inquiry was incompetent to inquire into the complaints contained in Exhibit C merely because they allege acts of a criminal nature. The appellant himself asserts in his statement in support of the originating summons and verifying affidavit that the remote cause of the disturbance was the lingering misunderstanding between the host community and the College arising from the compulsory acquisition of their land without compensation. He also stated his own opinion of the immediate cause of the disturbance on the fateful day, namely a quarrel between two female students from different ethnic groups, one from the Tiv tribe and the other from Igede (host community) tribe as to who had the right to fetch water from the College borehole, which altercation ultimately led to a fight resulting in one of the students being injured. According to him the fight subsequently spread to the host community where property was destroyed. That is one side of the story. The duty of the commission was to examine the different representations, and make findings and recommendations and submit same to the Governor. He has not shown that the commission exceeded its terms of reference. I agree with the view expressed by the learned trial Judge at pages 268 – 269 of the record when he stated thus:
” Since the Commission of Inquiry submits a report to the Governor upon the completion of its assignment and the Government signifies acceptance by the publication of a White Paper… the Commission of Inquiry does not “determine” any civil rights and obligations of any person or body of persons appearing before it. Therefore the Commission should not be elevated to the status of a Court of law or a judicial tribunal in the course of procurement of evidence from witnesses. ”
This issue is therefore answered in the negative and it is accordingly resolved against the appellant.
Issue 3
Whether Sections 19 and 22 of the Commission of Inquiry Law Cap. 40 Laws of Benue State of Nigeria 2004 are unconstitutional having regard to Sections 1, 6, 36, 46 and 272(1) of the Constitution of the Federal Republic of Nigeria 1999. In support of this issue, the appellant submitted that where the words of a statute are clear and unambiguous they must be given their natural and ordinary meaning. He submitted that for the purpose of interpretation a court is not allowed to go outside the words used in the statute or import into it a meaning convenient to the court or the parties. He referred to: Gafar Vs Government of Kwara State & Ors. (2007) 4 SCM 120 @ 134 – 135. He submitted that Section 22 of the law bars the institution of any civil action by aggrieved person in respect of anything done against his interest under the said law without the permission of the Attorney General of the State. He submitted that this is contrary to the view expressed by the learned trial Judge that the purport of the section is to prevent the use of evidence of witnesses of the commission in a matter already before the court without the permission of the Attorney General of the State. He submitted that the provision is unconstitutional as it seeks to oust the jurisdiction of the High Court and impede the right of an aggrieved person to seek redress in court contrary to Sections 1, 6, 36, 46 and 272(1) of the 1999 Constitution. Relying on the case of: Nuhu Vs Ogele (2003) 18 NWLR (582) 251, he submitted that the provisions of the Constitution are all-embracing and apply to all persons and bodies and that any law that is inconsistent with its provisions is to that extent null and void and of no effect. He also referred to: Osagie II Vs Offor (1998) 1 – 2 SCJ 150 @ 154.
In reply learned counsel for the respondents submitted that Section 22 of the Law does not impede the right of a party to sue but empowers the Attorney General to sue on behalf of any aggrieved person, thus safeguarding against libellous suits, harassment or intimidation of the commission. He relied on: onjewu vs Kogi State Ministry of Commerce & Industries (2003) FWLR (181) 1590 @ 1615.
Sections 1(1) & (3), 6(6)(a) & (b), 36(1), 46(1) and 272(1) of the 1999 Constitution provide as follows:
1.(1) This Constitution is supreme and its provisions shall have binding force on all authorities and persons throughout the Federal Republic of Nigeria.
(3) If any law is inconsistent with the provisions of this Constitution, this constitution shall prevail, and that other law shall to the extent of the inconsistency be void.
6.(6) The judicial powers vested in accordance with the foregoing provisions of this section-
(a) shall extend, notwithstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law.
(b) shall extend to all matters between persons or between government or authority and to any person in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person;
36. (1) In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such a manner as to secure its independence and impartiality.
46. (1) Any person who alleges that any of the provisions of this Chapter has been, is being or is likely to be contravened in any State in relation to him may apply to a High Court in that State for redress.
272. (1) Subject to the provisions of section 251 and other provisions of this Constitution, the High Court of a State shall have 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 or 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.”
The various provisions quoted above provide for the supremacy of the Constitution over all authorities and persons throughout Nigeria and for the jurisdiction of the courts to protect the civil rights and obligations of citizens of Nigeria.
Sections 19 and 22 of the Commissions of Inquiry Act provide as follows:
19. “No Commissioner shall be liable to any action or suit for any matter or thing done by him as such Commissioner.
22. No civil proceedings shall lie or be instituted in any court save at the instance of the Attorney-General of the state, for or on account of or in respect of any act, matter or thing done or purported to be done under this Law. ”
Section 19 of the Law clearly provides for immunity from prosecution for any commissioner acting in the performance of his duties as such commissioner under the Law, The provision provides protection similar to that enjoyed by any court or tribunal from unnecessary and/or frivolous litigation. I agree with the finding of the learned trial Judge regarding the purport of Section 19. With regard to Section 22, His Lordship, after reviewing some English authorities on the reasons for the privilege enjoyed by witnesses regarding evidence given before a court or tribunal held thus at page 271 of the record:
“The purport of sections 19 and 22 of the Commission of Inquiry Law supra is therefore to also prevent the evidence of witnesses, what the lead counsel (sic) and the pronouncements of the Chairman and members of the Commission being used in a Court of Justice save at the instance of the Attorney-General of the State so that none is put in fear of being subjected to any libellous suit, harassment or intimidation in any manner whatsoever. If that be allowed witnesses would not be forthcoming to testify before a Court, tribunal or Commission of Inquiry.”
The question to be answered is whether Section 22 of the Act fetters the right of an aggrieved party to approach the court for redress. In the case of Osagie II vs Offor (1998) 2 SC 150 relied upon by the appellant the law under consideration was the Traditional Rulers and Chiefs Edict No. 16 of 1979, Bendel state of Nigeria. Section 22(3) and (4) (a) & (b) of the said law provided as follows:
22. (3) “Where there is a dispute as to whether a Traditional Chieftaincy Title has been conferred on a person in accordance with Customary Law or as to whether a Traditional Chieftaincy title has been conferred on the right person, the Prescribed Authority or the Executive Council, as the case may be, may determine the dispute.
(4) The decision of the Prescribed Authority or the Executive Council as the case may be:-
(a) To approve or not to approve the conferment of a Traditional Chieftaincy Title on a person; or
(b) Determining a dispute in accordance with sub-section (3) of this section, shall not be questioned in any Court.” (Emphasis mine)
Relying on the above provisions, the trial High Court struck out the suit instituted before it for lack of jurisdiction on the ground that being a chieftaincy matter, it was premature for the plaintiffs to have come to court without first seeking redress from the Prescribed Authority or the Executive Council. On appeal to the Court of Appeal the ruling of the High Court was set aside and the case remitted back to the High Court for trial on the merits by another Judge. A further appeal to the Supreme Court was dismissed and the judgment of the Court of Appeal was affirmed. At pages 154 – 156 (supra), His Lordship Kutigi, JSC, agreed with the views expressed by Uche-Omo, JCA in the judgment appealed against to wit (per Uche Omo, JCA):
“In my view Section 22(2), (3) and (6) of the Bendel State Chieftaincy Law 1979 cannot in any way seek to derogate or circumscribe the provisions of section 236(1) of the 1979 Constitution. Any attempt to do so would make it inconsistent with that constitutional provision and therefore to that extent void. A decision that it delays the right of an aggrieved party to come to court, or that it is a condition precedent to the exercise of a right to file an action to be entertained by the High Court, seeks to circumscribe the powers of the High Court under section 236(1) of the Constitution and to that extent it is void and of no effect. It is entitled to the same fate as the provision of section 22(4), which respondent’s counsel has conceded to be unconstitutional. The decision of the learned trial Judge that the action of the appellant is premature and striking same out is therefore wrong, and the appellant is entitled to succeed on this issue.”
His Lordship Kutigi, JSC continued thus:
“Having agreed with the views and conclusions of the Court of Appeal above, the issue herein for resolution must be decided against the appellants. Edict No. 16 of 1979 in section 22 sub-section (2), (3) and (6) prescribed no condition precedent to the exercise of jurisdiction by the High court. I am also not in doubt whatsoever that these subsections derogate from the powers of the High Court to entertain suits in view of subsection 4, which stated that the decision of a Prescribed Authority or the Executive Council “shall not be questioned in any court”.
A critical examination of Section 22 of the Commissions of Inquiry Act reveals that there is no attempt to oust the jurisdiction of the court to hear and determine any matter arising from any act, matter or thing done under the Act. The only requirement is that civil proceedings must be instituted at the instance of the Attorney-General of the State. I am inclined to agree with the learned trial Judge that the provision is meant to further protect the members of the Commission and witnesses who appear before it from frivolous actions or harassment. In the case of: Onjewu vs K.S.M.C. & I (2003) F.W.L.R. (181) 1590 @ 1615 D – G, the Abuja division of this court considered section 8(3) of the Kogi State Proceedings Edict 1988, which provided that “no garnishee shall lie or be commenced against any government without the consent of the Attorney-General” and Section 84(1) of the Sheriffs and Civil Process Law Cap. 407 Laws of the Federation of Nigeria 1990, which requires the consent of the Attorney-General before a court could validly issue a garnishee order nisi against funds in the hands of a public officer. The Court held that such requirements were not inconsistent with the relevant provisions of the 1999 Constitution on the ground that such provisions were to ensure sound public administration and were a matter of public policy aimed at protecting public funds. I am unable to agree with the appellant that Sections 19 and 22 of the Act derogate from or circumscribe a citizen’s right to approach the court for redress. This issue is therefore resolved against the appellant.
Issue 4
Whether the learned trial Judge was right when he declined to consider or act on the plaintiff’s evidence in support of his originating summons.
The appellant’s issue 4 covers grounds 5 and 6 of the notice of appeal. The two grounds without their particulars are as follows:
Ground 5: Error in Law
The learned trial Judge erred in law when he failed to consider or rely on the plaintiff’s affidavits in support of the originating summons along with the Exhibits attached when same were neither challenged nor controvefted by the defendants and went ahead to dismiss the plaintiff’s case, holding that the originating summons is not proved.
Ground 6: Error in Law
The learned trial Judge erred in law when he held that in the absence of certification of Exhibits A – L to the affidavit in support of the originating summons and a certified true copy of the proceedings of the Commission of Inquiry complained of, there is no evidence before him on the complaint of bias against the members of the commission and went ahead to dismiss the plaintiff’s claim.
Relying on the case of Odulaja vs Haddad (1973) 1 SC 35, the appellant submitted where evidence is unchallenged or admitted by the adverse party the court is bound to act on such evidence as the true position of the issues joined on that aspect of the claim and no further proof of such facts would be required. He referred to paragraphs 19 – 30 of the affidavit in support of the originating summons, particularly paragraphs 24 – 30 thereof wherein he deposed to facts that gave rise to the allegation of bias or likelihood of bias against the commission. He argued that the respondents did not deny the averments and even acknowledged the existence of those facts in paragraph 4(a)(h) of their counter affidavit. He submitted that the averments in the said affidavits were sufficient for the learned trial Judge to reach a conclusion that the allegation of bias or likelihood of bias in the conduct of members of the commission was justified, He contended that having regard to the unchallenged affidavit evidence before the court, the absence of a certified true copy of the proceedings of the commission ought not to have prevented the lower court from making a finding on the issue. He submitted that the 5th – 9th respondents did not depose to any facts in their counter affidavit suggesting that they took steps to allay the fears of the appellant and his community when they expressed their fears of a likelihood of bias against their interests.
In reply, learned counsel for the respondents submitted that contrary to the contention of the appellant, the respondents emphatically denied the allegation of bias in paragraph 4(e) – (f) of their counter affidavit. He submitted that even if the averments were not denied the court was not bound to act on them in the absence of certified true copies of the record of proceedings of the Commission. He argued that it would amount to guess work. He referred to: Lekwot Vs Judicial Tribunal (1997) 7 SCNJ 347 @ 355. He submitted further that the court is not obliged to accept as true evidence that is weak, devoid of substance or falls below the standard expected in a particular case. He referred to paragraph 23 of the verifying affidavit at page 106 of the record and cited the case of: Neka Manufacturing Co. Ltd. vs. ACB (2004) 1 SCNJ 193 @ 212. He submitted that the onus was on the appellant to prove his case.
The appellant’s complaints against the Commission were two-fold. The first was that the membership of the Commission consisted of the Chairman (5th respondent) from the Idoma tribe; the secretary (6th respondent) from the Tiv tribe; the 7th respondent, Idoma, as member; 8th respondent, Tiv, as member and the 9th respondent as the only Igede member. (See paragraph 18 of the verifying affidavit at page 105 of the record). The second complaint (see paragraphs 22 – 28 of the verifying affidavit) was that the chairman in particular was very hostile to the appellant and his counsel and continuously descended into the arena. Furthermore it was alleged that one S.T. Suleh Esq., the learned State Counsel representing the commission, in response to the appellant’s objection to the constitution and membership of the commission made certain remarks before the Commission to the effect that the Tiv students had suffered at the hands of the Igede people during the riot. The appellant contended that such remarks made by counsel to the Commission before the parties had presented their cases before it tended to prejudge the issues and were likely to bias its mind against the Igede people.
The issue here is that the appellant wanted the court below to make a finding of bias or likelihood of bias against the Commission based on the affidavit evidence before the Court and in furtherance of such finding to dissolve the Commission or quash its proceedings. The learned trial Judge declined to do so on the ground that certified true copies of the proceedings were not before it. The law is quite settled that a court is not entitled to speculate on any document or process not before it. The appellant’s prayer for the dissolution of the Commission is akin to an application for judicial review of the proceedings of an inferior tribunal. The proceedings complained of must be brought before the court. I agree with learned counsel for the respondents that to ask the court to dissolve the commission based on allegations of bias without producing the record of proceedings therein amounts to asking the court to reach a decision based on guesswork. See: Lekwot & Ors. vs. Judicial Tribunal (1997) 7 SCNJ 347 @ 355. In paragraph 4(e) – (h) of the respondents’ counter affidavit, the allegation of bias and the statement allegedly made by S.T. Suleh Esq. were denied. The only way the court could make a pronouncement on the proceedings would be upon a certified true copy of the record of proceedings of the Commission being placed before it. The appellant failed to do so. The learned trial Judge held at page 279 of the record:
“Learned counsel has not shown from any proceedings before the Commission that real likelihood of bias existed at the preliminary stages of the Commission’s sitting or that the Chairman or members engaged the plaintiff and members of the Community in any undignified and emotionally charged diaglogue tending to engender in the minds of reasonable and right-thinking members of the people sitting in the Commission and watching the proceedings, bias or likelihood of bias, and I so hold.”
I agree entirely with the view expressed by His Lordship. In the circumstances this issue is answered in the affirmative, it is accordingly resolved against the appellant.
Issue 5
Whether Exhibits A – L attached to the affidavit verifying the facts relied on by the appellant are public documents to be certified before they could be considered by the Court.
In support of this issue, the appellant submitted that Exhibits A – L attached to the verifying affidavit are not public documents requiring certification. He submitted that Exhibit A is a document made and signed by the appellant in his capacity as counsel and as an interested party in the subject of inquiry before the Commission. He submitted that there was nothing before the court to suggest that it was a public document within the exclusive custody of the Commission or any government agency such as to require certification. He submitted that Exhibits B, D, E, F, G, J, K and L were all personal memos of various individuals exchanged inter-partes and that there was no evidence that they were filed in any official registry or public institution to justify the conclusion reached by His Lordship. He submitted that Exhibits C and H are complaints addressed to the 2nd respondent and not memoranda submitted to the Commission. He submitted that the learned trial Judge was in error to have disregarded the documents on the ground that they were public documents in respect of which only certified true copies were admissible.
Learned counsel for the respondents submitted that whether or not a document falls within the ambit of Section 109(a)(ii) & (b) of the Evidence Act does not depend on whether or not it was filed. He submitted that certification of public documents preserves them and ensures their authenticity vis-a-vis the original. He relied on: Araka Vs Egbue (2003) 7 SCNJ 114 @ 126. With regard to Exhibit A he argued that in the instant case it is only due certification that would satisfy the court that the document exhibited was in fact what was submitted to the Commission. With regard to Exhibits B – L, particularly Exhibits C, E, F and G, he submitted that they are not shown to have been copied to the appellant, and there is no evidence as to how they came into his custody. He maintained that only certified copies would have resolved the issue.
I have carefully examined the exhibits attached to the appellant’s verifying affidavit. Exhibits A, B, D and F attached thereto and Exhibits J, K and L attached to the reply to counter affidavit are memoranda addressed to the Chairman of the Commission by various interested persons including the appellant. The only way to show that these were the processes submitted to the Commission is by the production of certified true copies thereof.
Section 97(1)(e) & (f) and (2)(c) of the Evidence Act provides:
97. (1) Secondary evidence may be given of the existence, condition, or contents of a document in the following cases –
(e) when the original is a public document within the meaning of Section 109 of this Act;
(f) when the original is a document of which a certified copy is permitted by this Act or by any other law in force in Nigeria, to be given in evidence.
(2) The secondary evidence admissible in respect of the original documents referred to in the several paragraphs of subsection (1) of this section is as follows –
(c) in paragraph (e) or (f) a certified copy of the document, but no other kind of secondary evidence is admissible
Section 109(a)(ii) and (b) of the Evidence Act provides:
109. The following documents are public documents –
(a) documents forming the acts or records of the acts –
(ii) of official bodies and tribunals, and
(b) public records kept in Nigeria of private documents.
I am of the view that the various memoranda submitted to the Commission are public documents within the meaning of Section 109(a)(ii) of the Evidence Act.
Exhibits C and H are petitions written to the State Governor by the Tiv Community of the College and the appellant respectively. There is no endorsement on Exhibits C and H to indicate that they were in fact documents received by the Governor’s office. The appellant who deposed to the verifying affidavit was not the author of Exhibit H. Exhibits E and G are memoranda addressed to the ad hoc committee of the Benue State House of Assembly on the crisis at the College. Exhibit E was allegedly submitted by one Miss Ahemen Hom while Exhibit G was allegedly submitted by the National Association of Idoma students, College of Education, Oju Chapter. Both documents are public documents within the meaning of Section 109(a) (ii) of the Evidence Act. It follows therefore that only certified true copies of those documents were admissible. Again the appellant who deposed to the affidavit was not the author of Exhibits E and G. It must be borne in mind that having come before the court by way of originating summons, all the exhibits relied upon must be legally admissible in evidence, as the appellant seeks various declarations based on the affidavit evidence before the court. I agree with the learned trial Judge that no weight could be attached to those exhibits in the absence of proof that they formed part of the records of the Commission. This issue is accordingly resolved against the appellant.
Issue 6
Whether the learned trial Judge rightly dismissed the claim for damages as contained in paragraph 28(h) of the appellant’s reliefs,
The appellant’s complaint under this issue is that the learned trial Judge re-framed the prayer contained in paragraph 28(h) by describing it as a claim for general damages for economic trees whereas the claim was for special damages in respect of properties belonging to members of the Ogengeng-Ukpa community destroyed during the crisis, and on this basis refused to grant the relief. For facts supporting the claim he referred to paragraphs 15 and 16 of the main affidavit, paragraph 3(h) of the further affidavit and Exhibit L attached to the further affidavit. He observed that there was no mention of economic trees anywhere in the pleadings. On the need for a court to restrict itself to the issues raised by the parties and to give adequate consideration to evidence proffered in support of a claim for special damages before making an award, he referred to: A.G. Leventis Nig. Plc. vs Akpu (2007) 12 SCM (Part 2) 1 @ 2-21. He urged us to resolve this issue in his favour.
In reply, learned counsel for the respondent submitted that the appellant did not classify the damages claimed as special damages, He submitted that in the circumstances the learned trial Judge was correct to have inferred that the claim was for general damages. He submitted that in any event the claim in paragraph 28(f) was not proved. He submitted that apart from the fact that paragraphs 13 – 16 of the verifying affidavit do not disclose the source of the deponent’s information, there are no supporting facts to grant the reliefs claimed. He reiterated his earlier submission that Exhibit L was not certified.
Alternatively, he submitted that even if Exhibit L were in the proper form, it does not prove the claim for special damages. He submitted that special damages must be strictly proved and must be easily discernible and quantifiable. He submitted that it must not rest on any notion that would give rise to speculation, approximation or estimation. He referred to: Neka Manufacturing co. Ltd. vs A.C.B. Ltd. (2004) 1 SCNJ 193 @ 212. He noted that Exhibit L purports to be a comprehensive list of properties of the villagers destroyed and losses suffered by members of the host community as a result of the riot. He referred to page 233 of the record and observed that the total value of the properties is said to be N404,200.00. He noted that items 2 and 3 do not state the type of rooms allegedly broken into and the specific property removed to arrive at the value accredited to the items. He noted further that at page 238 the name of the vehicle allegedly burnt is not stated but valued at N580,000.00. He stated that after a breakdown the value stands at N450,000.00. He further observed that while the total value of the items on pages 233 – 240 of the record is put at N5,240,250.00, the sum claimed in paragraph 28(f) is N500,000,000.00 (Five Hundred Million Naira). He urged the court to hold that the facts and figures did not prove the relief claimed.
Paragraph 28(h) of the originating summons had been reproduced earlier in this judgment. However for ease of reference I shall repeat it hereunder. It reads thus:
28.(h) ” The sum of N500,000.00 (sic) (Five Hundred Million Naira) only against the 1st to 4th Respondent, jointly and severally, in favour of the applicants, as damages for damage variously suffered by the applicant and other members of his Ogengeng- Ukpa Community of Oju Local Government Area of Benue State as a result of the 4th Respondent’s students’ cum staff actions and riot of 03/03/2009.”
The averments in support of the above relief are contained in paragraphs 15 and 16 of the verifying affidavit, particularly paragraph 16 where it is averred that innocent villagers were attacked and their properties such as houses, cars, motorcycles and power generators were destroyed. The items are particularized in Exhibit L annexed to paragraph 3(h) of the reply to counter affidavit. Exhibit L is a covering letter addressed to the Commission by the appellant. Annexed thereto are letters written by various members of the host community listing the damage to their respective property and ascribing a monetary value thereto. With regard to the claim in paragraph 28(h) the learned trial Judge held at page 282 of the record:
“The Supreme Court has held that it is improper to award damages for destruction of economic trees whose names, nature and economic values are not pleaded or proved. … The court does not make a habit of awarding general damages where the losses suffered are capable of quantification by evidence of cost of repairs or replacement.”
While I agree with the appellant that the claim in paragraph 28 (h) was not for damages for the destruction of economic trees, I am of the view that a claim for damages for “damage variously suffered by the applicant and his Ogengeng-Ukpa Community .., as a result of the actions and riot of 03-03-09” is certainly a claim for special damages. “Damage variously suffered” means damage suffered by individual members of the community. This view is buttressed by Exhibit L. As individual members of the community had submitted claims in respect of their losses, any damages awarded would have to be such as to assuage the specific losses suffered by each claimant. General damages would not meet that requirement. The learned trial Judge was therefore correct when he stated that a court would not award general damages where the loss is quantifiable. The law has been long settled that special damages must be strictly pleaded and strictly proved. In the case of Neka Manufacturing Co. Ltd. vs. A.C.B. Ltd. (2004) 1 SCNJ 193 @ 203 lines 17 – 29, His Lordship, Pats-Achoronu, JSC stated thus on the distinction between general and special damages:
”Damages in tort is a compensation for loss sustained arising out of the act or omission of a defendant. it is trite law that where the claimant specifically alleges that he suffered special damages, he must perforce prove it. The method of such proof is to lay before the court concrete evidence demonstrating in no uncertain terms easily cognisable, the loss or damages he suffered so that the opposing party and the court as the umpire would readily see and appreciate the nature of the special damages suffered and being claimed. A damage is special in the sense that it is easily discernible and quantified. It should not rest on a puerile conception or notion which would give rise to speculation, approximation or estimate or such like fractions.”
It is interesting to note that both the verifying affidavit and the reply to counter affidavit were deposed to by the appellant. Exhibit L is the covering letter written by the appellant to which is annexed the lists earlier referred to submitted by various members of the host community. There is nothing to indicate that the appellant’s personal property was affected by the violence. Exhibit L said to have been submitted to the Commission, as held earlier in this judgment, is a public document, which ought to have been certified as required by Section 97(2)(c) of the Evidence Act. It is not so certified. Furthermore any loss or damage suffered by any member of the community could only be proved by such person. There is no affidavit before the court sworn to by any of the members of the community whose lists were annexed to Exhibit L. The averment in paragraph 3(h) of the reply to counter affidavit amounts to hearsay. I therefore agree with the learned trial Judge that there was no evidence before him upon which to exercise his discretion to grant the relief sought. Similarly, with regard to the claim for N10 billion in favour of the appellant and his community as compensation against the 1st – 3rd respondents for the compulsory acquisition of their land as campus for the 4th respondent, there was no evidence before the court as to the value of the land. Such evidence would normally include the value of economic trees and unexhausted improvements on the land. This issue must therefore be and is hereby resolved against the appellant.
Having resolved the first issue in the appellant’s favour, the appeal succeeds in part. The judgment of the High Court of Benue State, Makurdi Division in Suit No. MHC/193/2009 delivered on 23/7/09 per J. Tine Tur, J dismissing the relief in paragraph 28(f) of the originating summons filed on 22/6/09 is hereby set aside. The said relief is accordingly granted as prayed. The dismissal of the remaining reliefs in paragraph 28(a), (b), (c), (d), (e), (g) and (h) is however upheld. The parties shall bear their respective costs in the appeal.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have before now read the judgment just delivered by my learned brother, Kekere-Ekun, JCA. I agree that this appeal be allowed in part. The order of the Lower Court dismissing the relief in paragraph 28(f) of the originating summons filed on 22/06/09 ought to be set aside and is hereby also set aside by me. The Learned Trial Judge was right, in my view, to dismiss the reliefs in paragraph 28(a), (b), (c) (d), (e), (g) and (h). That order of dismissal ought to be upheld and is hereby upheld by me. I also make no order for costs.
UCHECHUKWU ONYEMENAM J.C.A.: I agree with my learned brother, K.M.O. Kekere-Ekun, JCA whose draft judgment I have been privileged to read before now. I agree with him that the appeal succeeds in part. I with respect adopt his lordship’s reasoning and conclusions. As I have nothing more to add to the erudite judgment, I also set aside the judgment of the High Court of Benue State, Makurdi Division in Suit No. MHC/193/2009 delivered on 23:7:09 dismissing the relief in paragraph 28(f) of the Originating Summons filed on 22:6:09. The relief is granted as prayed. I also uphold the judgment of the lower court dismissing the reliefs in paragraph 28(a), (b), (c), (d), (e), (g) and (h). I subscribe to the order on costs.
Appearances
O.M.A. Ode Esq.,For Appellant
AND
E.I. Yange PSC I, Ministry of Justice, Benue State;For Respondent
