Attorney-general Of Bendel State Vs Chief C.O.M. Agbofodoh & Ors (1999)

LAWGLOBAL HUB Lead Judgment Report

UWAIS, C.J.N.

This is an appeal from the decision of the Court of Appeal, Benin (Ogundare, J.C.A., as he then was, Musdapher and Ajose-Adeogun. J.J.C.A). The appellant was the defendant in the High Court of former Bendel State, sitting at Benin (Moje Bare. J.) while the respondents, by their predecessors, were the plaintiffs. The writ of summons was taken out on the 8th day of May, 1978. By a motion on notice brought in the High Court by one Kenera Denedo, for himself and on behalf of Ubeji community of Warri Local Government Area, the applicant was joined on the 18th day of October, 1979 as co-defendant to the action. The respondents were unhappy with the order of joinder granted and so they appealed to the Court of Appeal against the joinder, but, from the record before us, nothing seems to have become of the appeal, Later. Kenera Denedo filed another suit (No, W/76/80) on the same dispute in the same, High Court, this time holden at Warri, in which he made the Attorney-General of Bendel State and Anthony Atiri and Agbalagba Awhaisoba jointly for themselves and on behalf of Ekpan community of Ethiope Local Government Area, defendants.

By a motion on notice brought in Benin on the 23rd day of February, 1981, by Kenera Denedo, a request for the transfer of the earlier suit from Benin to Warri Judicial Division was made on the ground that the two suits might he determined simultaneously. There is nothing on the record of proceedings to show that the motion on notice was either heard or granted. The 1ast time that Kenera Denedo was shown in the record of proceedings as 2nd defendant in the case, was during the High Court’s sitting on the 16th day of June, 1981.

On the 12th day of December, 1981, the appellant, as the only defendant to the action, brought a motion on notice under Order 22 rules 2. 3 and 4 of the Bendel State High Court (Civil Procedure) Rules praying that the legal points mentioned in his amended statement of defence be determined before the trial of the suit began. The application was granted by Moje Bare, J., on the 11th day of March, 1982. Argument by the parties was heard between the 4th day of February, 1983 and the 12th day of August 1983. Ruling on the application was delivered on the 10th day of October, 1983. The learned trial Judge held that the jurisdiction of the High Court was ousted. He concluded his ruling as follows:-

“In the result this application ought to succeed.

Order: Order as prayed.

Pursuant to the provisions of Order 22 rule 3 of the High Court (Civil Procedure) Rules. Cap. 65, Bendel State Laws, 1976, it is my view that the points of law raised in this application substantially disposes of the action; to my mind, once a matter comes within or among the category or class of cases or acts which are protected or covered by the ouster provisions of those statutory enactments, the jurisdiction of the court is ousted automatically and the courts are thereby precluded from entertaining or adjudicating upon them by operation of law: see Attorney-General, Bendel State and 2 Others v. A.I. Wilson suit No. A/B/115/82 delivered on 28th April, 1983 by the Federal Court of Appeal.

Plaintiffs’ claims are hereby dismissed,”

Now the plaintiffs’ claims in question are

“(1) A declaration that section 5 of the Bendel State Edict No.7 of 1978 is unconstitutional, illegal and ultra vires the Government of Bendel State and is therefore null and void.

(2) A declaration that the Bendel State Edict No.7 of 1978 (Ekpan and Ubeji Communities (Riots and Clashes) (Determination) Edict), in which the Ekpan community has been directed to pay N55,000.00 as part of the total cost of ‘rehabilitation’ and ‘reconstruction’ of Ubeji village is unconstitutional, oppressive, illegal and ultra vires the Government of Bendel State and is therefore null and void.

(3) A declaration that the Bendel State Edict No.7 of 1978 (Ekpan and Ubeji Communities (Riots and Clashes) Determination Edict), in which it was directed in section 3 of the Edict that the Ekpan community should pay the said sum of N55,000.00 to the treasury of Bendel Slate Government within one month from 13th of February 1978, is unconstitutional, unlawful, and ambiguous and is therefore null and void.

(4) A declaration that section 1 of Bendel State Edict No.7 of 1978 is unconstitutional, illegal and ultra vires the Government of Bendel State and is therefore null and void.”

The facts which gave rise to the case are briefly as follows. On the 15th day of August, 1977 there was a conflict involving riots and clashes between two neighbouring villages of Ekpan in Ethiope Local Government Area and Ubeji in Warri Local Government Area. As a result, the then Military Governor of Bendel State set up a Commission of Inquiry in exercise of his powers under section 2 subsection (1) of the Commissions of Inquiry Law, Cap, 23 of the Laws of Western Region of Nigeria, 1959 applicable in Bendel Stale. A Legal Notice No, 89 of 1977 was published in the Bendel State Gazette appointing Hon, Justice B.A. Omosun, as the Sole Commissioner for the Inquiry. The Legal Notice contained the terms of reference of the Commission. It was to inter alia “make recommendations towards peace, law and order in the two villages and other recommendations including and/or individual punishment, if any.”