TUKUR V. GOVERNOR OF TARABA STATE

TUKUR V. GOVERNOR OF TARABA STATE

(1997) LCN/2732(SC)

In the Supreme Court of Nigeria

Friday, June 27, 1997


Case Number: SC. 143/1996.

 

JUSTICES:

SALIHU ALFA BELGORE JUSTICE, SUPREME COURT

IDRIS LEGBO KUTIGI JUSTICE, SUPREME COURT

MICHEAL EKUNDAYO OGUNDARE JUSTICE, SUPREME COURT

YEKINI OLAYIWOLA ADIO JUSTICE, SUPREME COURT

ANTHONY IKECHUKWU IGUH JUSTICE, SUPREME COURT

 

APPELLANTS

ABUBAKAR UMARU ABBA TUKUR

 

RESPONDENTS

1. THE GOVERNMENT OF TARABA STATE

2. ALHAJI ABBAS NJIDDA TAFIDA

3. THE GOVERNMENT OF ADAMAWA STATE

 

RATIO

BRIEF WRITING

The appellate courts have not relented in frowning against breaches of the rules of brief writing. But no appeal has been refused on the sole ground of a defective brief. Per OGUNDARE JSC

 

OGUNDARE, JSC (Delivering the Leading Judgment):

Alhaji Umaru Abba Tukur, OFR was at one time the Emir of Muri. Muri was, at all times material to this case, situate in the now defunct Gongola State; it is now in Taraba State following the creation, in August 1991, of Taraba and Adamawa States out of Gongola State. He was appointed Emir of Muri on 6/11/65 in succession to his late father, Alhaji Muhammadu Tukur. By an Order titled the Deposition (of the Emir of Muri, Alhaji Umaru Abba Tukur) Order 1986 and dated the 12th day of August 1986, the then Military Governor of Gongola State Col. Y. A. Madaki (now retired) removed Alhaji Umaru Abba Tukur (hereinafter is referred to as the appellant) from office as Emir of Muri. Before the making of the Order a letter signed by the Secretary to the Military Government of Gongola State, was forwarded to him on 11/8/86 inviting him to have audience with the Military Governor concerning the reconstitution of the dissolved Mari Emirate Council. The appellant left his palace at Jalingo on 12/8/86 for Yola, the state capital where he met the Zonal Assistant Commissioner of Police one Alhaji Umaru Yola who took him to a residential quarters on the order of the Military Governor. It was while he was waiting in the heavily guarded quarters that the Secretary to the Government arrived and delivered to him the deposition order. Thereafter he was placed under house arrest at Yola for 32 days and on 8/9/86 he was banished and driven from Yola to Mubi in the middle of the night under tight security. Following an order of the Federal High Court sitting at Kano the plaintiff was released from detention on 16/2/87 after staying 161 days under detention in Mubi.

On 19th August 1986, he commenced proceedings in the Federal High Court Kano pursuant to section 42(1) of the Constitution of the Federal Republic of Nigeria 1979 and the Fundamental Rights (Enforcement Procedure) Rules 1979 praying for the following reliefs:

“1. An order or orders quashing the Deposition (of the Emir Alhaji Umaru Abba Tukur) order 1986 dated the 12th day of August, 1986, made by Col. Y. A. Madaki, Military Governor of Gongola State, removing the applicant from office as Emir of Mari, on the following grounds:

(i) That the said order violates the fundamental rights of the applicant guaranteed by section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 as amended, (hereinafter referred to as the Constitution), in that the applicant was never given the opportunity of being heard before the said order was made, nor given any notice of misconduct pertaining thereto, let alone particulars thereto,

(ii) That the conditions precedent to the exercise of the powers of deposition by the Military Governor under section 6 of the Chiefs (Appointment and Deposition) Law Cap.20 Vol.1 Laws of Northern Nigeria 1963 applicable to Gongola State, not having been satisfied, renders the said order null and void and of no legal effect, and;

(iii) That the said order having been purportedly made pursuant to Section 1(l) (d) of Decree No. 17 of 1984, is void ab initio and not applicable to the applicant, since it cannot be said that the applicant is an employee of the Jalingo Local Government Council as envisaged by the said Decree nor could it be said that he is in the public service of Gongola State within the meaning of the said Decree, being a traditional and/or natural ruler;

  1. For a declaration that by virtue of paragraphs l (i) to 1 (iii)supra, that the Applicant is still the Emir of Muri, Jalingo L.C.A., and is entitled to all rights and privileges pertaining thereto.
  2. For a further declaration that the applicant’s detention from the 12th day of August, 1986 in a Government Lodge, Yola, by the Military Governor aforesaid is without any justifiable cause whatsoever and constitutes a further violation of his fundamental rights as enshrined in Section 32(1) of the said Constitution;
  3. For another declaration that being an Emir or a traditional ruler does not derogate from the applicant’s right to freedom of movement throughout Nigeria as guaranteed by section 38(1) of the Constitution aforesaid;
  4. For a perpetual injunction restraining Col. Yohanna Madaki, Military Governor of Gongola State, his servants, agents and other such representatives from howsoever interfering with the liberty and rights of the applicant, as guaranteed by chapter 4 of the said constitution except in a manner prescribed by law, and
  5. For aggravated and exemplary damages against the Military Governor for wrongful infringing applicant’s fundamental rights as aforesaid; and for such other order or orders as the court may seem just.”

The proceedings went through the three tiers of courts, that is, Federal High Court, Court of Appeal and the Supreme Court on the issue of the jurisdiction of the Federal High Court to entertain the proceedings. On 5/9/89, this court, per Obaseki JSC, finally held:

“In the instant appeal, all the breaches of the fundamental rights alleged flow from the deposition of the appellant from the office of Emir of Muri by the Military Governor of the State. The office of Emir of Muri is a chieftaincy office and the deposition of the Emir a chieftaincy question which only a State High Court has jurisdiction to determine. The appellant in my opinion, is directly complaining by his claim or reliefs claimed and affidavit evidence, that his civil right as a chief has been breached and that in the process, his fundamental rights of fair hearing, liberty and freedom of movement have also been breached. His claim for an order to quash the order of deposition and restoration to the office is a relief the Federal High Court has no jurisdiction to entertain. It is only the High Court of Gongola that has jurisdiction to grant the relief. Since the Federal High Court does not have jurisdiction to quash the order of deposition and order the restoration of the appellant to his office of Emir of Mari, the jurisdiction to enforce the fundamental rights of fair hearing, liberty and movement of the appellant vests only in the High Court of Gongola State in the matter.”

See: Umaru Abba Tukur v. Government of Gongola State (No.2) (1989) 4 NWLR (Pt. 117) 517 at 547.

The learned Justice of the Supreme Court added at page 548 of the Report:

“The appellant is not without a forum to pursue his claims. He has only approached the wrong court- a court which has no jurisdiction to adjudicate on all the questions raised by the appellant.”

Following this development the appellant, on 1/11/89, commenced fresh proceedings against the Government of Gongola State under Order 1 Rule 2 of the Fundamental Rights (Enforcement Procedure) Rules, 1979 in the High Court of Gongola State sitting in Yola for the following reliefs:

“1. Quashing the Deposition (of the Emir of Muri, Alhaji Umaru Abba Tukur) Order 1986 dated the 12th day of August 1986, made by Col. Y. A. Madaki, (Rtd.) Military Governor of Gongola State, removing the applicant from office as Emir of Muri, on the following grounds.

(A) That the said order violates the fundamental rights of the applicant guaranteed by section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 as amended, (hereinafter referred to as the Constitution), in that the applicant was never given the opportunity of being heard before the said order was made, nor given any notice of misconduct pertaining thereto, let alone particulars thereof:

(B) That the condition precedent to the exercise of the powers of deposition by the Military Governor under Section 6 of the Chiefs (Appointment and Deposition) Law Cap. 20 Vol. 1 Laws of Northern Nigeria 1963 applicable to Gongola State, not having been satisfied, renders the said order null and void and of no legal effect, and

(C) That the said order having been purportedly made pursuant to Section 1(1) (d) of Decree No. l 7 of 1984, is void ab initio and not applicable to the applicant, since it cannot be said that the applicant is an Employee of the Jalingo Local Government Council as envisaged by the said Decree, nor could it be said that he is in the public service of Gongola State within the meaning of the said Decree, being a traditional and/or natural ruler;

  1. A declaration that by virtue of paragraph 2(i) to 2(iii) (supra), that the applicant is still the Emir of Muri, Jalingo L.G.C, and is entitled to all rights and privileges pertaining thereto.
  2. A further declaration that the applicant’s detention from the 12th day of August 1986 in a Government Lodge, Yola, for 27 days by the Military Governor aforesaid, and subsequent banishment to Muri, Gongola State for 187 days are without any justifiable cause whatsoever and constitutes a further violation of his fundamental rights as enshrined in sections 31(1) (a) and 32(1) of the said constitution.
  3. Another order quashing the Ex Emir (Alhaji Umaru Abba Tukur Ex Emir of Muri) Removal Order 1986 B 31, contained in the GGS Legal Notice No. 58 of 1986 dated 30th October, 1986, on the ground that the same is incompetent and unconstitutional, since it violates the right guaranteed the applicant, by sections 31(1) and 32(1) of the Constitution aforesaid, as well as Decree No. 2 of 1984 as amended.
  4. Aggravated and exemplary damages against the Government for wrongfully infringing applicant’s fundamental rights as aforesaid, and for such other order or orders as the Court seem just.”

Affidavits and counter-affidavits were filed on both sides. A preliminary objection was taken by the respondents to the proceedings, that is, Gongola State Government and the Attorney-General of Gongola State. The objection was to the effect that the action was incompetent in that “by virtue of section 2(a) of the Public Officers (Protection) Law Cap. 111 Laws of Northern Nigeria 1963 (applicable in Gongola State) and Order 2 Rule 3(I) of the Fundamental Rights (Enforcement Procedure) Rules 1979” the action was statute barred. The preliminary objection was argued and dismissed by late Buba Ardo CJ on 20/3/91 and the substantive application proceeded to trial before Bansi Chief Judge who had in the meantime succeeded Buba Ardo CJ following the latter’s demise.

In the course of the proceedings before Bansi CJ Alhaji Abbas Njidda, Tafida was joined as co-respondent in the proceedings. He had been appointed to succeed the appellant as the Emir of Muri, following the latter’s deposition.

After series of preliminary issues were raised and determined by the learned trial Chief Judge, arguments on the substantive application were heard from learned counsel to the parties and in a reserved judgment given on 30th day of November 1992, the learned trial Chief Judge adjudged as follows:

“1.(a)   Prayers Nos. 1 (a) to (c) and which have radically and principally raised chieftaincy matters, and, chieftaincy matters are not fundamental rights matters within the scope of Chapter 4 of the 1979 constitution, are incompetent and therefore not properly before me, and they are hereby struck out to the extent of their incompetence.

(b) The Fundamental Rights issue raised in paragraph 1(a) above being inCidental to the chieftaincy matters and since the principal matters – chieftaincy matters are struck out, the incidental matters, which is the Fundamental Right matter, must also be struck out and it is hereby struck out because the Fundamental Right matter can not be tried without determining the chieftaincy matters.

2. Any consequential order or orders made by this court since the commencement of this proceedings in this court in 1989, in connection with the chieftaincy matters, and all other matters incidental thereto and ancillary thereof, having been struck out in this judgment for being incompetent, the said order or orders are also hereby discharged (the order or orders).

3. A declaration is hereby made that the detention of the applicant after Exhibits ‘F’ and ‘G’ attached to the affidavit of the applicant were served on the applicant and the applicant became aware of their contents as he was a deposed Emir, he became at that point in time an Ex Emir of Muri.

4. That the subsequent detention of the applicant as an Ex Emir of Muri for 27 days as from 12/8/86 at the Government Lodge Yola is without any justifiable cause whatsoever and constitutes a violation of the applicant’s fundamental rights as enshrined in Sections 31(1)(a), 32(1) and 33(1) of the Constitution.

5. That the further detention of the applicant at Mubi Gongola State for 187 days is without any justifiable cause whatsoever and constitutes a further violation of his Fundamental Rights as enshrined in Sections 31(1)(a), 32(1) and 33(1) of the Constitution.

6. An order quashing the Ex Emir (Alhaji Umaru Abba Tukur Ex Emir of Muri) Removal Order 1986 B.31 contained in Legal Notice No. 58 of 1986 dated 30th October 1986 banishing him to Mubi is hereby entered on the ground that the same is incompetent and unconstitutional since it violates the rights guaranteed to the applicant by Sections 31(1)(a), 32(1) and 33(1) of the Constitution aforesaid as well as Decree No.2 of 1984 as amended.

7. The Taraba State Government is hereby ordered and directed to pay the aggravated and exemplary damages of six million (N6,000,000.00) Naira awarded to the Ex Emir, the applicant forthwith.

8. It is hereby declared that the 3rd respondent Alhaji Abbas Njidda Tafida -is an innocent respondent in this suit, therefore., he shall not pay any part of the damages awarded to the applicant. No execution of this judgment, shall therefore, be levied against the 3rd respondent.

9. It is also hereby ordered and directed that this judgment shall not be executed against the Adamawa State Government. And it shall not also be executed against the Attorney-General of Adamawa State for the reasons that are stated in this judgment.”

and directed that –

“10. These orders shall be served on: –

(a) The Honourable Attorney-General and Commissioner of Justice of Taraba State for compliance; and

(b) The secretary to the Government of Taraba State also for compliance.

11. It is further hereby ordered that these orders shall be served for information only; on:

(i) The Attorney-General and Commissioner of Justice of Adamawa State, and

(ii) The Secretary to the Government of Adamawa State.”

Being dissatisfied with that part of the judgment of the trial High Court awarding N6 million damages against the Taraba State Government in favour of the appellant, the Taraba State Government appealed to the Court of Appeal upon 2 grounds which, without their particulars read as follows:

“1. The learned trial Judge erred in law when he awarded the ‘Global’ sum of six million Naira (N6,000,000.00) as exemplary and aggravated damages against the appellant (Taraba State Government) in favour of the 2nd respondent.

2. The quantum of damages awarded by the learned trial Judge is unreasonable, unjustifiable and unwarranted having regard to the circumstances of the case and sought the following reliefs from the Court of Appeal –

“1. An order setting aside the order of the lower court ordering the appellant to pay the ‘Global’ sum of six million Naira (N6,000,000.00) to the 2nd respondent as exemplary and aggravated damages or,

ALTERNATIVELY (without conceding though)

2. An order reducing the quantum of damages to one hundred thousand Naira (N100,000.00) and that this amount be paid by both Adamawa and Taraba States in accordance with the formular used in the sharing of assets and liabilities of the defunct Gongola State between themselves.”

The Adamawa State Government, the appellant (Alhaji Umaru Abba Tukur) and the Co-respondent Alhaji Umam Abba Njidda Tafida were made parties to the appeal. By leave of the Court of Appeal, a third ground of appeal was added to the grounds of appeal. It reads:

“The trial Judge erred in law when he divided the claims before it into those of chieftaincy and those of fundamental Human right and adjudicated on the latter.

PARTICULARS

(a) The trial Judge held at page 133 line 35 -page 134 lines 1-25 of the record as follows: –

I therefore agree with the submissions of Mr. Kehinde Sofola (SAN) counsel that I can only have jurisdiction to try this principal claim of the applicant if the chieftaincy matter with its subsidiary matter, the right of fair hearing under section 33(1) of the 1979 Constitution are brought by way of writ of summons. When the chieftaincy matter under prayers I (a) to (c) and 2 are swept away by the violent wind of want of jurisdiction the subsidiary matter of fair hearing under section 33(1) of the 1979 Constitution is also swept away.

(b) Having said that the Fundamental Human Right had been swept away, he should not have turned round to determine the fundamental Human Right, issue.”

Briefs of arguments having been filed and exchanged and oral arguments proffered, the Court of Appeal in a unanimous decision allowed the appeal of the Taraba State Government and set aside the decision of the trial High Court. It found, per Edozie JCA:

  1. “It is crystal clear that the 1st respondent’s principal claims, that is, prayers 1 and 2 are inextricable (sic) bound up with his subsidiary claims – 3, 4 and 5 and the learned Chief Judge having correctly found that he lacked the jurisdiction to adjudicate on the principal claim because proceedings thereto were not initiated by writ of summons, he ought not to have embarked upon trying the subsidiary prayers, 3, 4 and 5. He ought to have struck out the subsidiary claims just as he did with respect to the principal claim.”
  2. However, since the learned trial Chief Judge took into consideration in the award of damages extraneous matters with respect to the history of his judicial career and being of the view that the award made is ridiculously high, there is justification for reducing same. As was stated by the Supreme Court in His Highness Uyo 1 v. Felix Egwere (1974) 1 All NLR (Pt. 1) 293 at 296, one of the matters which the trial Judge was obliged to consider was the status of the respondent and:

‘……… What the method of assessment is employed a great part of the exercise of assessment must be arbitrary but the entire exercise must at all stages have reference to the evidence in the case and subject-matter of the action such an award must be adequate to repair the injury to the plaintiff’s reputation which was damaged; the award must be such as would atone for the assault on the plaintiff’s character and pride which were unjustifiably invaded.’

In the case in hand, the 1st respondent was a 1st class Emir and one time Minister of State and member of the Northern House of Assembly. It is not disputed that he was in detention for a total of 214 days. Taking all these into consideration and the fact that the value of the Naira has depreciated remarkably, since the incident, I think an award of N1,000,000.00 (One million Naira) is reasonable. Accordingly, I do vary the amount of six million Naira damages to N1,000,000.00 (One million Naira).”

I may at this stage mention that the appellant was also dissatisfied with that part of the judgment of the trial High Court which struck out his reliefs (1) and (2). He too appealed to the Court of Appeal. In a separate judgment, the Court of Appeal dismissed this appeal.

The appellant was unhappy with the two judgments and, in separate appeals, appealed to this court. Briefs of arguments were filed and exchanged in the two appeals but before they came up for hearing, the appellant died on 7/2/97. In respect of the present appeal an application was made, and granted, to substitute Abubakar Umaru Abba Tukur, the eldest son of the deceased as appellant. The second appeal was withdrawn at the hearing by learned counsel for the appellant and was dismissed by us.

In relation to the present appeal, briefs of argument were filed and exchanged by the appellant, the 1st respondent, that is, the Government of Taraba State and the 3rd respondent, that is, the Government of Adamawa State. Learned counsel for the parties proffered oral arguments in further expatiation of their briefs of argument. Three questions are set down for determination in the appellant’s brief. They are:

“1. Whether the Court of Appeal was right in entertaining and determining the 1st respondent’s third ground of appeal in Appeal No. CA/J/206/93?

2. Was the Court of Appeal correct when it held that the trial court lacked the jurisdiction to entertain the appellant’s claims?

3. Whether the Court of Appeal was right in reducing the N6,000,000.00 awarded in favour of the appellant by the trial court to N1,000,000.00?”

The 1st respondent, in its Brief, also set out three questions as hereunder-

  1. Whether the Court of Appeal was right when it, after considering the issues for determination as set out by the parties to the appeal and the grounds of appeal filed, re-framed two issues for determination which, in the opinion of the court, would determine the issues in controversy between the parties in the appeal.
  2. Whether the Court of Appeal was right when it held that the trial court was in error to have tried the subsidiary claims of fair hearing after it (trial court) had held that it lacked jurisdiction to try the principal claims of chieftaincy.
  3. Whether the Court of appeal was right in reducing the N6,000,000.00 awarded in favour of the appellant by the trial court, to N1,000,000.00?”

There is scarcely any difference between the two sets of questions. The 3rd respondent who apparently was not concerned with the 1st two questions as raised by the appellant and the 1st respondent framed the following question as calling for determination:

“Whether the Court of Appeal was right in holding that the one million (N1,000,000.00) it awarded in favour of the appellant, should devolve on the 1st and 3rd respondents?”

The 2nd respondent did not file a Brief and although he was represented by counsel at the hearing, learned counsel did not seek leave to address the court and maintained the position that his client was not affected by the appeal.

I now proceed to consider and determine the questions as posed in the appellant’s Brief.

QUESTION 1:

I have stated earlier in this judgment the three grounds of appeal filed in the Court of Appeal by the 1st respondent (Taraba State Government) as appellant before that court. In its Brief of argument in that court the 1st respondent set out one issue as arising for determination, to wit:

“Whether the Trial Chief Judge was right when he awarded the ‘Global sum’ of six million Naira (N6,000.000.00) as exemplary and aggravated damages against the 1st and 2nd respondent (sic) in the lower court and ordered that the said damages be paid by the appellant herein alone.”

The appellant, as 1st respondent before that court, raised in his Brief a preliminary objection, that is to say:

“PRELIMINARY OBJECTION

The 1st respondent herein shall at the hearing of this appeal urge this Honourable Court to strike out Ground 3 of the appeal and also the whole of the appellant’s Brief for being incompetent, defective and incurably incomprehensible.

The grounds of objection are as follows:

(1) Ground 3 of the appeal is deemed to have been abandoned when no issue as formulated is based or relevant to it.

(2) Argument based on grounds of appeal and not issue for determination is of no consequence.

(3) The argument in respect of issue No. 1 which urges the court to answer the said issue on the negative has no correlation or bearing howsoever with the issue for determination.

(4) That the only issue formed (sic) for determination is defective as it cannot be reconciled with any of the grounds of appeal.

(5) That the only issue formed (sic) for determination is of no consequence in that no award for damages was made against the 1st and 2nd respondents by the lower court.”

It is submitted that:

(a) Ground 3 was incompetent in that no issue was formulated on it and as arguments have to be based on issues formulated, the ground must be deemed abandoned. A number of legal authorities are cited in support.

(b) Ground 3 could not be raised having regard to the pa

 

COUNSELS

Charles Obishai -for the appellant

M Isa Solicitor-General, Taraba State (with him, H. Audu (State Counsel) -for the 1st Respondent

B. James -for the 2nd Respondent.

Dr. M. M. Gidado (Attorney-General, Adamawa State (with him Yusuf Jalo Senior State Counsel) -for the 3rd Respondent

 

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