THE GOVERNOR OF OYO STATE v. HON. JUSTICE IYABO YERIMA & ANOR
(2014)LCN/7635(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of December, 2014
CA/A/523B/2011
RATIO
CONSTITUTIONAL LAW: THE OFFICE OF THE ATTORNEY-GENERAL; THE PROVISION OF THE OFFICE OF THE ATTORNEY-GENERAL ACCORDING TO THE CONSTITUTION AND WHETHER THE ATTORNEY-GENERAL IS A CORPORATION SOLE
The office of the Attorney-General of a state is provided for in section 195(1) of the Constitution of Nigeria, 1999 (as amended) which reads,
“There shall be an Attorney-General for each state who shall be the Chief Law officer of the state and Commissioner for Justice of the Government of that state”.
It follows therefore that the Attorney-General of a State is a corporation sole recognized by the Constitution and the law of the land as having a personality which is distinct from the separate personality of the individual holder for the time being of that office. See CARLEN (NIG) LTD v. UNIVERSITY OF JOS (1994) 1 NWLR (323) 631, 656 AND ATTORNEY-GENERAL OF THE FEDERATION v. ALL NIGERIA PEOPLES PARTY (2004) 114 LRCN 2671, 2687-2688. The office acts through the natural person who holds that office for the time being or a person delegated by him in respect of a particular function that can be delegated. See ATTORNEY-GENERAL OF KADUNA STATE v. HASSAN (1985) 2 NWLR (8) 483. per. JOSEPH E. EKANEM, J.C.A.
CONSTITUTIONAL LAW: THE FUNDAMENTAL RIGHT OF FAIR HEARING; THE PROVISION OF THE CONSTITUTION ON THE RIGHT TO FAIR HEARING OF A PERSON AND THE TWIN PILLARS OF NATURAL JUSTICE
Section 36 (1) of the Constitution of Nigeria 1999 (as amended) provides,
“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”.
The provision gives constitutional flavour to the twin pillars of natural justice, viz; (a) audi alterem partem and (b) Nemo judex in causa sua. It applies not only to courts of law or tribunals but also to administrative bodies, such as the 2nd respondent’s investigation committee, that exercise judicial functions in the sense that they have to decide on materials before them “between an allegation and a defence”. Such bodies are required to act fairly. See HART v. MILITARY GOVERNEMENT OF RIVERS STATE (1976) 11 SC 111, LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE v. FAWEHINMI (1985) 7 SC 178, 251 and ADIGUN v. ATTORNEY-GENERAL OF OYO STATE (1987) 1 NWLR (53) 678. per. JOSEPH E. EKANEM, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria
TANI YUSUF HASSAN Justice of The Court of Appeal of Nigeria
JOSEPH E. EKANEM Justice of The Court of Appeal of Nigeria
Between
THE GOVERNOR OF OYO STATE Appellant(s)
AND
1. HON. JUSTICE IYABO YERIMA
2. NATIONAL JUDICIAL COUNCIL Respondent(s)
JOSEPH E. EKANEM, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Federal High Court, Abuja Division (“the lower court” for short) delivered on 20th January, 2011 in suit No. FHC/ABJ/CS/352/2008. In the judgment the lower court entered judgment in favour of the 1st respondent (qua; plaintiff) and granted all the reliefs sought by her.
The facts giving rise to the appeal are that two petition were written against the 1st respondent concerning her conduct in the discharge of her functions as a judge of the High Court of Justice, Oyo State. One petition was written by Mr. Adebayo Shittu as the Attorney-General of Oyo State and second was written by an Organization known as the Committee for Defence of Rule of Law. On the direction of the 2nd respondent, the 1st respondent responded to the petitions and a panel of investigation was constituted to inquire into the matter.
At the panel, the former Attorney-General who authored one of the petitions was called upon to present the petition which had been withdrawn by the then incumbent Attorney-General before then. The former Attorney-General was cross- examined. At the end of the sitting, the panel submitted its report to the 2nd respondent which relied on it and suspended the 1st respondent, and recommended her compulsory retirement.
Aggrieved by the turn of events, the 1st respondent sued for the following reliefs.
“i. A declaration that the recommendation of the 1st defendant based on its investigation committee report relating to the plaintiff in all its ramification is illegal, unconstitutional as it violates the plaintiff’s right to fair hearing which include the right of natural justice guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999.
ii. A declaration that the Attorney-General of Oyo State, Adebayo Shittu, Esq., not being the writer of the petition dated 12th May, 2007 to which the 1st Defendant panel adjudicated upon and allowing the said Attorney-General to be a substituted complaint is null and void, unconstitutional and against natural justice.
iii. A declaration that the recommendation of the 1st defendant to the 2nd Defendant against the plaintiff based on a petition that has been withdrawn by an Attorney-General of the State null, void, unconstitutional and of no effect.
iv. A declaration that the letter of Barr. Michael Lana dated 5th November, 2007 having withdrawn the petition written by Adebayo Shittu, the then Attorney-General of Oyo State, there was no longer complaint by the 1st Respondent’s Committee to investigate and adjudicate on how much more to make recommendation thereto.
v. An order setting aside the report/recommendation of the 1st Defendant to the 2nd Defendant for gross infringement of the plaintiff’s Fundamental Human Right to fair hearing.
vi. An order of perpetual injunction restraining the Defendants, their agents, servants or privies from carrying into effect or executing or enforcing the said recommendation or anything connected whatsoever with the said report or recommendation relating to the plaintiff”.
The lower court as earlier stated granted all the reliefs sought. Dissatisfied, the appellant has appealed to this court by way of a notice of appeal containing four grounds of appeal.
The appellant and 1st respondent filed their briefs of argument which their counsel adopted and relied upon at the hearing of the appeal.
In his brief of argument, M. O. Adebayo, Esq.; (Attorney-General and Commissioner for Justice, Oyo State) on behalf of the appellant, formulated four issues for the court’s determination of the appeal. The issues are;
“1. Whether having regard to the circumstances of the purported withdrawal of the petition filed by Mr. Adebayo Shittu, the said petition could be said to have been validly withdrawn by Mr. Michael Lana.
2. Whether the learned trial judge did not approbate and reprobate when he gave regard to authorship in respect of one petition and disregard authorship in respect of the other.
3. Whether the trial Judge did not misconceive the case and misdirected himself when he held that the Committee for Defence of the Rule of Law is a faceless society.
4. Whether having regard to the fact and evidence as well as the entire proceedings of the investigation panel, the Plaintiff/Respondent could be said to have been denied fair hearing”.
On the other hand, counsel for the 1st respondent Kenneth Omoruan, Esq., in his brief, which was adopted by Senior counsel, Dr. Alex A. Izinyon (SAN) formulated the following issues for the determination of the appeal.
“1. Whether the petition written and signed by Mr. Adebayo Shittu in his official capacity as the then Attorney-General of Oyo State ….. Could be said to have been validly withdrawn by a subsequent Attorney-General Oyo State (Michael Lana) in his official capacity.
2. Whether the learned trial Judge did not misconceive the case and misdirected himself when he held that the committee for Defence of Rule of Law is a faceless organization.
3. Whether having regard to the facts and evidence as well as the entire proceedings of the panel of investigation, which were before the trial court, the Plaintiff/1st Respondent’s right to fair hearing has been breached by the investigation panel”.
The issues formulated by appellant and 1st respondent are virtually the same and so I shall adopt the issues formulated by appellant except for his issue two in respect of which no argument was offered in the appellant’s brief. The assertion by the learned Attorney-General, Oyo State, that issue two was argued along with issue one is not borne out by the appellant’s brief. Issue two is therefore deemed abandoned and I accordingly strike out the same.
Arguing issue one, the learned Attorney-General, Oyo State, submitted that the withdrawal of the petition against the 1st respondent was not done in good faith and was done without power to do so. The same, he added, was an abuse of public office and legal process. He was of the view that the posture of the 1st respondent indicated that they did not want proceedings to go on during investigation. He then referred to section 55 of the Interpretation Law of Oyo State 2000 and section 8(1) of the Interpretation Act Cap. 123 Laws of the Federation of Nigeria and submitted that upon removal of Mr. Shittu from office (as Attorney-General) Mr. Lana (his successor) did not have the power to discontinue or abate civil proceedings already initiated. These provisions, he argued, do not conflict with section 211 (1) of the Constitution of Nigeria, 1999 (as amended) as the latter relates to criminal proceedings.
As regards his issue three, it was his submission that the lower court misconceived the facts about the address of the organization and this led to the misdirection that the organization did not exist.
On issue 4, the learned Attorney-General referred to the case of MMS LTD v. OTEJU (2005) 14 NWLR (945) 517 and submitted that the proceedings of the panel conformed to the requirement of audi alterem partem. He noted that the proceedings of the panel demonstrated that the 1st respondent was given opportunity to present her case, the panel was impartial, she cross-examined her accusers, called her witnesses etc.
He finally urged the court to uphold the appeal and set aside the judgment of the lower court.
Replicando, learned senior counsel for the 1st respondent in respect of issue one stated that the averments of the 1st respondent in her statement of claim that the petition was written against her by the Attorney-General Oyo State and had been withdrawn by the Attorney-General Oyo State were not specifically denied by the appellant. It was his submission that the petition signed by Barr. Adebayo Shittu for the Oyo State Government was not signed in a private capacity and that by virtue of section 8 (1) of the Interpretation Act, it was properly withdrawn by the then Attorney-General of Oyo State (Mr. Michael Lana) in his official capacity not as a suit but as a petition.
Arguing his issue two, learned senior counsel submitted that appellant did not aver any fact controverting the averment of the 1st respondent in her statement of claim regarding the facelessness of the Committee for the Defence of the Rule of Law. He added that there was no contrary evidence to that of the 1st respondent on the point.
In regard to issue three, he adopted his arguments on issues one and two, and submitted that it was wrong for the investigation panel to allow Mr. Adebayo Shittu to transform from being counsel to being the petitioner.
Senior counsel finally urged the court to dismiss the appeal.
I shall deal with the issues seriatim hereunder.
1. Whether having regard to the circumstances of the purported withdrawal of the petition filed by Mr. Adebayo Shittu the said petition could be said to have been validly withdrawn by Mr. Michael Lana.
The petition which in part kick-started the process of investigation against the 1st respondent (Attachment to Exhibit 12) was written on the Letter – headed paper of the “Attorney-General’s Chambers Ministry of Justice, Ibadan, Oyo State of Nigeria”. It was signed by Alhaji Abdul-Raheem Adebayo Shittu in his capacity as “the Attorney-General and Commissioner for Justice”.
Its opening paragraph reads;
“I am constrained and indeed most humbly impelled by duty as Chief Law Officer nay the conscience of the state…….”
In its penultimate paragraph, it is stated as follows;
“Based on the foregoing, it is my humble prayer for and on behalf of the Government of Oyo State of Nigeria……”
It is thus clear that the petition was not a personal letter written by Mr. Adebayo Shittu but an official letter written by him in his capacity as the Attorney-General of Oyo State and Chief Law Officer of that state.
The office of the Attorney-General of a state is provided for in section 195(1) of the Constitution of Nigeria, 1999 (as amended) which reads,
“There shall be an Attorney-General for each state who shall be the Chief Law officer of the state and Commissioner for Justice of the Government of that state”.
It follows therefore that the Attorney-General of a State is a corporation sole recognized by the Constitution and the law of the land as having a personality which is distinct from the separate personality of the individual holder for the time being of that office. See CARLEN (NIG) LTD v. UNIVERSITY OF JOS (1994) 1 NWLR (323) 631, 656 AND ATTORNEY-GENERAL OF THE FEDERATION v. ALL NIGERIA PEOPLES PARTY (2004) 114 LRCN 2671, 2687-2688. The office acts through the natural person who holds that office for the time being or a person delegated by him in respect of a particular function that can be delegated. See ATTORNEY-GENERAL OF KADUNA STATE v. HASSAN (1985) 2 NWLR (8) 483.
There is uncontroverted evidence on both sides that before the panel of investigation began its sitting, the holder of the office of the Attorney-General, Oyo State, at the time in his official capacity withdrew the petition earlier written by that office. It was within his powers to do so and his motive even if considered less than noble cannot be questioned except by the Governor of the State who can sanction him, or he may be forced to resign by adverse public opinion. It has been held that the Constitution does not admit of any limitation to the exercise of the powers of the Attorney-General. See IBRAHIM v. STATE (1986) NWLR (18) AND ATTORNEY-GENERAL OF ONDO STATE v. ATTORNEY-GENARAL OF THE FEDERATION (2002) 9 NWLR (772) 222, 419. This applies even in respect of withdrawal of petitions before the 2nd respondent and is in keeping with the position of the Attorney-General under the common law which considers him a law to himself and subject to direction and control from none in the discharge of his office. See ATTORNEY-GENERAL OF KADUNA STATE v. HASSAN supra 500
Our attention was drawn to section 8 (1) of the Interpretation Act Cap 123 Laws of the Federation of Nigeria which reads as follows;
“Any civil or criminal proceeding taken by or against any person by virtue of his office shall not be discontinued or abated by his death, resignation, or absence or removal from office, but may be carried on by or against, as the case may be, the person appointed to perform the duties of the office”.
The provision is clear and unambiguous and must be given its literal meaning. See AMOBI v. NZEGWU (2014) 2 NWLR (1392) 510, 545. It does not imply that the incumbent Attorney- General cannot withdraw a petition written by his predecessor. It simply forbids the automatic discontinuance or abatement of a civil or criminal proceeding for the reason only of the death, resignation or absence or removal from office of an officer. The use of the word “may” in contrast with “shall” in the first part of the sub-section shows that the successor is left with a discretion as to whether or not to continue with the proceeding. It is therefore not acceptable to argue, as did counsel for the appellant, that the incumbent Attorney-General could not withdraw the petition written by his predecessor. He could do so.
It is noteworthy, as pointed out by senior counsel for the 1st respondent, that the averment in paragraph 18 of the statement of claim that Barrister Michael Lana wrote to the chief Justice of Nigeria and Chairman of the 2nd respondent withdrawing the petition was met by two inconsistent responses in the statement of defence of the appellant. One was a general denial and the other was a plea that she was not in a position to admit or deny it. The first traverse was not sufficient to deny the material fact. See LEWIS PEAT (NRI) LTD v. AKHIMIEN (1976) 7 SC 107 and AKINTOLA v. SOLANO (1986) 2 NWLR (24) 598. The second in essence amounted to an admission of the withdrawal of the petition. See also LEWIS PEAT (NRI) LTD supra. In the face of two inconsistent averments, one generally denying and the other essentially admitting the same paragraph of the statement of claim, there is in deed no denial. See EGBUNIKE v. AFRICA CONTINENTAL BANK LTD (1995) 2 NWLR (375) 34, 56. In essence, the appellant did not join issues with the 1st respondent as to the withdrawal of the petition nor did she raise any issue as to the power of the incumbent Attorney – General to do so. Thus the issue is a rare bird to fly at this altitude and especially so without leave of court. It ought to be discountenanced.
In the light of the foregoing, I resolve issue one against the appellant.
ISSUE 3
Whether the trial Judge did not misconceive the case and misdirect himself when he held that the Committee for Defence of Rule of Law is a faceless society.
When a counsel appears for a party as did Mr. Adebayo Shittu, the law presumes that he was duly briefed by those he claims to represent. See SHONA – JACKSON LTD v. OMEGA AIR LTD (2006) 1 NWLR (960) 1, 34. However, the presumption is rebuttable and this arises only when there is clear evidence from the client concerned that counsel was not instructed to appear for him or was debriefed. See BUHARI v. YABO (2006) 17 NWLR (1007) 162, 177.
It however seems clear to me from a close reading of the judgment of the lower court that what agitated its mind was the, transmutation of Mr. Shittu from being counsel to testifying for the petitioner. The lower court saw this as a negation of the rules of natural justice as it held that in the absence of the petitioner, the 1st respondent could not have confronted her accusers with a view to cross-examining them (see pages 534-535 of the record). The comment as to the facelessness of the committee did not influence the decision of the lower court and so the misdirection did not occasion a miscarriage of justice. It is not every error or misdirection that will lead to a reversal of the judgment of a court. It is only where the error or misdirection affected the judgment in a way that is crucial to the decision that the judgment will be reversed. See EGBUNIKE v. AFRICAN CONTINENTAL BANK LTD supra. 52. I therefore resolve issue three against the appellant.
ISSUE 4
Whether having regard to the facts and evidence as well as the entire proceedings of the investigation panel, the Plaintiff/Respondent could be said to have been denied fair hearing.
Section 36 (1) of the Constitution of Nigeria 1999 (as amended) provides,
“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”.
The provision gives constitutional flavour to the twin pillars of natural justice, viz; (a) audi alterem partem and (b) Nemo judex in causa sua. It applies not only to courts of law or tribunals but also to administrative bodies, such as the 2nd respondent’s investigation committee, that exercise judicial functions in the sense that they have to decide on materials before them “between an allegation and a defence”. Such bodies are required to act fairly. See HART v. MILITARY GOVERNEMENT OF RIVERS STATE (1976) 11 SC 111, LEGAL PRACTITIONERS DISCIPLINARY COMMITTEE v. FAWEHINMI (1985) 7 SC 178, 251 and ADIGUN v. ATTORNEY-GENERAL OF OYO STATE (1987) 1 NWLR (53) 678.
I had earlier held under issue one that the petition that in part kick-started the process of investigation had been validly withdrawn by the Attorney-General acting on behalf of the appellant. Yet the former Attorney-General (who had then become a private citizen) was called upon by the investigation committee to present the petition. Again Mr. Adebayo Shittu (the former Attorney-General) was allowed by the committee to mutate from being counsel for the committee for the Defence of the Rule of Law, Oyo State, to testify for it even though he is not a member thereof and no reason was given for the absence of the Committee and its members. See Exhibit 22D page 4.
I shall at this point take the liberty to quote in extenso a part of the judgment of this court delivered today in NATIONAL JUDICIAL COUNCIL v. HON. JUSTICE IYABO YERIMA and the Governor of Oyo State in Appeal No. CA/A/523/2011;
I agree with the lower court that it was wrong and oppressive for the investigation panel to allow the former Attorney-General (who had by then become a private citizen) to present the petition. The ultimate test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation, justice has been done in the case…… what is oppressive cannot be said to be fair….. How Mr. Shittu was allowed to act as Janus by being counsel and witness at the same time is baffling. I agree with the lower court that the procedure was most unorthodox and negates the principles of natural justice. This is especially so since the averment in paragraph 16 of the statement of claim that Shittu was not involved in two of the suits from which the petitions emanated and was not present on the day the order complained of was made in the third suit was not specifically denied.
It follows therefore that the 1st respondent was not afforded the opportunity of confronting her accusers and cross-examining them on their allegations against her. Fair hearing requires that a person must be given not only an opportunity but a fair opportunity to cross-examine her accusers.
…..The testimony of Mr. Shittu and the cross-examination of him did not serve this purpose”.
I adopt the above in this judgment. I only need to refer to the dictum of OPUTA, JSC in GARBA v. UNIVERSITY OF MAIDUGURI (1986) 2 SC 128, 269 that fair hearing implies, inter alia, that a person against whom allegation is made.
“…. Must be given a fair opportunity to correct and contradict such evidence….”
In the recent case of ADEWUNMI v. NIGERIA EAGLE FLOUR MILLS (2014) 14 NWLR (1428) 443, 458, DONGBAN-MENSEM, JCA, stated that,
“A procedure where an accuser is shielded from the accused all through the inquiry is certainly not one in compliance with natural justice. Presence and confrontation has a lot of impact…..
Fair hearing, it must be stated, involves not only the twin pillars of justice – audi alterem partem and nemo judex in causa sua but also, in its broad sense, what is not only right and fair to all concerned but also seems to be so. See ETIM v. REGISTERED TRUSTEES OF PRESBYTERIAN CHURCH OF NIGERIA (2004) 11 NWLR (883) 79, 92.
A reasonable person who was present during the proceedings of the investigation committee would not have left with the impression that justice in the sense of fairness had been done to the 1st respondent.
I therefore resolve issue 4 against the appellant.
On the whole, the appeal lacks merit and I hereby dismiss the same with costs assessed at N50,000:00 in favour of the 1st respondent against the appellant.
ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I have had a preview of the lead Judgment just delivered by my learned brother, EKANEM, JCA.
I agree with the reasoning and conclusion contained therein. I also hold that the appeal lacks merit and it is hereby dismissed.
I abide by the consequential orders made in the lead judgment including that of costs.
TANI YUSUF HASSAN, J.C.A.: I have had the opportunity of considering in draft, the Judgment of my learned brother Joseph E. Ekanem, JCA just delivered. I stand by his reasoning and conclusion that the appeal lacks merit and it is dismissed with cost of N50,000.00k in favour of the 1st Respondent against the appellant.
Appearances
M. O. Adebayo, Esq. (Attorney-General of Oyo State) (with him N. A. Abiola, Esq. (Deputy Director, Civil Litigation)For Appellant
AND
Dr. A. A. Izinyon (SAN) (with him, K. Omoruan, Esq.; Mrs. Hannatu Abdulrahman, Alex Izinyon 11, Esq. and Mrs. M. A. Majebi)
Rotimi Oguneso (SAN) (with him, Mabruk Kunmi – Olayiwola, Esq.)For Respondent
