Da Kabirikim V. Hon. Justice Luke Emefor (2009)
LAWGLOBAL HUB Lead Judgment Report
Walter Samuel Nkanu Onnoghen. JSC
This is an appeal against the judgment of the Court of Appeal, Holden at Jos in appeal NO. CA/J/76/99 delivered on the 22nd day of November, 2000 in which the court dismissed the appeal of the present appellants against the judgment of the High Court of Plateau State, Holden at Jos, in suit No. PLD/ J382/91 delivered on the 6th day of April, 1996 against the appellants who were the plaintiffs in that court. By paragraph 11 of their statement of claim, the present appellants, as plaintiffs, claimed the following reliefs: ‘WHEREFORE the plaintiffs claim against the Defendants jointly and severally:– (a) A Declaration that the power conferred on the Military Governor of Plateau State by section 2(1) of the Commission of Inquiries Law Cap. 25 Laws of Northern Nigeria applicable in Plateau State of Nigeria did not entitle the Military Governor to commission the 1st to 3rd and 6th Defendants to inquire into the matters set out in the terms of reference and to decide or determine ownership of Kabong Ward,Tudun Wada, Dong Wards and Kabong, Dong Wards. (b) A Declaration that the setting up of the Commission of Inquiry and its terms of reference are unconstitutional, null and void and is of no effect whatsoever in that:– (i) There is no dispute whatsoever as to what district the three (3) villages Kabong, Tudun Wada and Dong belong. (ii )determination of ownership of the three (3) villages is not within the competence of a Commission of Inquiry (c) An order setting aside the instrument constituting the Commission of Inquiry with respect to the terms of reference set out therein. (d) An order of injunction restraining the 1st to 3rd and 6th Defendants from submitting any report to the 4th and 5th Defendants or the Military Governor of Plateau State pursuant to the Commission complained of. (e) An order of injunction restraining the 4th and 5th Defendants from acting on or in any way taking any action on any report submitted by the 1st to 3rd and 6th Defendants in respect of the Commission complained of.” The terms of reference of the Commission included: (1) To determine the ownership of the disputed areas in the three districts, and (ii) To make any recommendation that the Commission might consider necessary to diffuse land disputes in general within Jos Metropolis.’ The Commission of Inquiry assigned the above terms of reference was established by the Military Governor of Plateau State under the powers conferred on him by the provisions of section 2(1) of the Commission of Inquiry Law Cap. 25 Laws of Northern Nigeria applicable to Plateau State. It is the case of the appellants that the above quoted terms of reference is ultra vires the Commission of Inquiry and therefore null and void in so far as it infringes on the jurisdiction of the High Court of Justice of Plateau State under the Constitution which has the jurisdiction to inquire into and determine ownership of land in Plateau State. On the other hand, the respondents contend that the 5th respondent has unfettered power to set up the Commission of Inquiry to look into the disputed area of Du, Gwong and Gyel Districts; that there has been disputes as to under which district the three wards of Tudun Wada, Kabong and Dong belong which has adversely affected effective administration of the area in terms of collection of taxes, census and demarcation of election wards; that it is for the public welfare and peace that the 5th respondent had to constitute the Commission of Inquiry. Now, section 2( 1) of the Commission of Inquiry Law, Cap 25 Laws of Northern Nigeria applicable to Plateau state provides as follows:– ‘The Governor may, whenever he shall deem it desirable issue a commission appointing one or more commission, and authorizing such commissions, or any quorum of them therein mentioned, to hold a Commission of Inquiry into the conduct of any officer in the Public Service of Northern Nigeria or of any chief or the management of any department of the public service or any Local Institutions or into any matter in respect of which in his opinion, an inquiry would be for public welfare. ‘ In determining the suit, the trial court found and held at pages 170 – 171 of the record, inter alia, as follows:- ‘From the evidence before me as given by PW1, PW2, PW3, DW1, DW2, and DW3 I cannot pretend that there has not been disputes as to how the village area or wards of T/Wada, Kabong and Dong can be effectively administered or managed by the District Head of Du (PW2) Gwong (DW2) and Gyel. I do not agree with the plaintiffs that there is no dispute whatsoever as to what district the three villages of Tudun Wada, Kabong and Dong belong. It is not the determination of the ownership per se that should be seen as the pre-occupation or concern of the 5th defendant. The question is the nature of the dispute in the three villages that has made the Commission of Inquiry necessary to go into the conduct of the claim of the three Districts of Du, Gwong and Gyel. That they made this claim of ownership is ampefully (sic) exemplified in the frustration during trial census of 1990 and Local Government of (sic) election of 1991. They were never held in the area because of the existing dispute, collection of community and cattle taxes suffered because of this. References were being meticulously made to Exhibits 2- 5, 6, 7 8 and 9 as if this court is to decide and confirm the ownership of the village areas in dispute. No, I am to decide whether in view of the contents of those documents the 5th defendant is justified by law to establish the Commission of Inquiry………….. ,………….. – Having held that the 5th defendant has the power to set up the Commission of Inquiry it is needless to pronounce on the jurisdiction of the High Court as provided by S.6(b) and S.236 of the 1979 Constitution of the Federal Republic of Nigeria, as amended. These sections do not oust the jurisdiction of the Commission of Inquiry as set up and given Terms of Reference.. … ..’ The appellants, who were the plaintiffs at the trial court were not satisfied with the decision of the trial court dismissing their claims and appealed to the Court of Appeal which formulated two issues out of the many issues formulated by the parties for determination of the appeal. The two issues are as follows:– ‘(1) Whether the Military Governor of Plateau State had powers to set up the Commission of Inquiry under section 2(1) of the Commission of Inquiry Law Cap. 25 of the Laws of Northern Nigeria, 1963 with the terms of reference to determine the ownership of Kabong, Tudun Wada and Dong. See grounds 4, 5, 6 and 7 of the appeal. (2) Whether the Learned Trial Judge properly and/or adequately considered the claim of the plaintiffs and the totality of the evidence led by the parties before dismissing the plaintiffs claim. See grounds 1, 2, 3 and 4 of the appeal. ‘ The lower court resolved the above issues against the appellants and consequently dismissed the appeal resulting in the instant further appeal to this Court, the issues for the determination of which have been formulated by C.A. AJUYAH, ESQ, learned counsel for the appellants in the appellants brief of argument filed on 21/4/04 and adopted in the argument of this appeal on the 24th day of April, 2009, as follows:- ‘(i) Whether the Learned Justices of the Court of Appeal were right in holding that the phrase ‘any matter or thing’ used in S. 2 of the Commission of Inquiry Law, Cap 25 of the Laws of Northern Nigeria, 1963 cannot be read ejusdem generic to the specific matters mentioned in the section? (ii) Whether the Learned Justices of the Court of Appeal were right in holding that Governor of Plateau State did not act ultra vires section 2(1) of the Commission of Inquiry Law, Cap. 25 Laws of Northern Nigeria, 1963 in appointing and authorizing the commission to inquire into ownership of the three villages? (iii) Whether the 2nd issue formulated and determined by the Learned Justices did not lead to a miscarriage of justice of this case?’ F.B. LOTBEN (MRS), learned counsel for the 1st, 2nd, 3rd, 4th, 5th and 6th respondents also formulated three issues similar to those by the appellants, while the learned Senior Counsel for the 7th respondent, G. OFODILE OKAFOR Esq, SAN in his brief of argument filed on 13/10/04 adopted the three issues formulated on behalf of the appellants. In arguing issues 1 and 2 together, learned Counsel for the appellants referred to the provisions of section 2(1) of the Commission of Inquiry Law and the terms of reference and submitted that section 2(1) of Cap 25, Laws of Northern Nigeria, 1963 does not confer jurisdiction on the Governor to appoint and authorize a commission to enquire into the ownership of land; that the subjects for which an enquiry can be appointed are clearly stated in S. 2( 1) of the Law which do not include ownership of land; that the phrase ‘any matter or thing’ relates to ‘any matter or thing’ ancillary to the matters or thing earlier referred to in the subsection; that by the canons of construction, a sentence must be read as a whole with each part being dependent on the other; that since section (2) 1consists of one sentence which gives single power, it has to be construed as a whole, relying on Barclays Bank DCO vs Yesufu Alabi Adigun (1967) 1 ANLR (pt 3) 536. Finally, learned Counsel submitted that by sections 6(6) and 236 of the Constitution of the Federal Republic of Nigeria, 1979, it is the High Court of a state that has jurisdiction to hear and determine the issue of ownership of land and urged the court to resolve the issues in favour of the appellants. PAGE| 7 On behalf of the 1st – 6th respondents, it is the submission of F.B. LOTBEN (MRS) in the brief of argument filed on the 24th day of October, 2005 that by the provisions of section 2( 1) of the Commission of Inquiry Law, Cap 25, Laws of Northern Nigeria, applicable in Plateau State, the Governor has the powers to constitute a Commission of Inquiry to look into any issue for public welfare; that the ejusdem generis rule of interpretation is inapplicable to the provisions of section 2(1) of the said Cap 25 in that each item listed therein is independent of the other due to the use of the word “or” after each item, relying on section 18(3) of Cap 192, Laws of the Federation of Nigeria,1990;that there is no category or class into which things of the same kind as specified in the section can be fitted, relying on Onasile v.s Sami(1962) NSCC 196 at 197;F.R.N vs Ifegwu (2003) 5SCNJ 217 at 229;Ndoma-Egba vs Ogor (2004) 2SCNJ 117 at 123;that the Governor can constitute a Commission of Inquiry to look into any issue that a threat to peace and order in the state which may include disputes over communal land. On the issue as to the powers of the commission to determine ownership of land, learned Council submitted that the terms of reference of the commission was not to determine the ownership of individual/village land but to determine whether what district the disputed land areas fell, for ease of administration; that the combined effect of sections 6(5) (h), b(6) (b),6(4) (a) and 236(1) of the 1979 Constitution points to the fact that the Governor of Plateau state can set up a Commission of Inquiry to look into ownership of disputed land areas under section 2( 1 ) of Cap 25 supra to avoid any rift detrimental to the state and urged the court to resolve the issues against the appellants. On his part, G. OFODILE OKAFOR Esq, SAN, learned Senior Counsel for the 7th respondent agrees with the submission of learned Counsel for the 1st – 6th respondents that each item mentioned in section 2( 1) of Cap 25, supra is independent of the others and that the ejusdem generic rule is not applicable to the facts of this case; that section 236 of the 1979 Constitution does not confer exclusive jurisdiction on the High Court of a State, but unlimited jurisdiction; that the commission was established to determine under which district or districts the three villages of Kabong, Tudun Wada and Dong belong, not ownership of a particular piece of land by any of the villages; that the determination is more administrative than judicial and urged the court to resolve the issues against the appellants. The two issues under consideration are the main issues in the appeal. I had earlier in this judgment reproduced the provisions of section 2( 1) of Cap 25 and the terms of reference of the Commission of Inquiry. The issue is simply whether the ejusdem generis rule of interpretation applies to the provisions of section 2(1) of Cap 25. The lower courts have held that it does not.Before determining the issue of the applicability of the ejusdem generis rule to the facts of this particular case, we need to know what is meant by ejusdem generis rule. In Blacks Law Dictionary, 8th Edition, defines the rule thus:– ‘Under ejusdem generic cannon of statutory construction where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated. ‘ PAGE| 9 There is however an exception to its application as stated in the said dictionary as follows:– ‘The rule, however does not necessarily require that the general provision be limited in its scope to the identicalthings specifically named. Nor does it apply when the context manifest a contrary intention.’ In the case of Buhari YS Yusuf (2003) 14 NWLR (pt. 841) at 486 – 487 this court, per Uwaifo, JSC stated the position of the rule as follows:– ‘Ejusdem generic rule is an interpretative rule which the court would apply in an appropriate case to confine the scope of general words which follows special words used in a statutory provision or document within the genus of those special words. In the construction of statutes therefore, general terms following particular ones apply to such persons or things as are ejusdem generic with those understood from the language of the statute to be confined to the particular terms. ‘ At the risk of repetition, lets take a close look at the provisions of section 2(1}of Cap 25, which calls for interpretation. It reads:- ‘The Governor may whenever he shall deem it desirable issue a commission appointing one or more commissioners or quorum of them therein mentioned to hold a Commission of Inquiry into the conduct of any officer in the PAGE| 10 public service of Northern or of any chief or the management of any department of the public service or of any local institution or anv matter in respect of which in his opinion an inquirv would be for the public welfare’ emphasis supplied by me. From the above provisions, it is clear that the Governor is empowered to appoint and authorize a commission to inquire into the conduct of:- (a) any public officer in the public service of Northern Nigeria or (b) any chief or (c) the management of any department of the public service, or (d) any local institution or (e) any matter in respect of which in his opinion an inquiry would be for the public welfare. It is now settled law that the word ‘or’ is disjunctive depending on the context as under certain circumstances the word ‘and’ would be read in place of ‘or’ so as to carry out the intention of the legislature. For the general interpretation of the word ‘or’, see section 18(3) of the Interpretation Act, Cap 1 92, Laws of the Federation of Nigeria, 1990 which states that ‘the word ‘or’ and the word ‘other”shall, in any enactment, be construed disjunctively and not as implying similarity.’peace and good governance of the state. It follows therefore that the expression ‘any matter’ used in section 2( 1) of Cap 25 does not relate to nor is it limited to ‘any matter’ ancillary to matters earlier mentioned in the said section 2 sub-section 1supra. It is the submission of learned counsel for the appellants that the provision of section 2( 1) of Cap 25 does not empower the Governor to appoint a Commission of Inquiry to inquire into ownership of land as the power to inquire into land ownership belongs exclusively to the court under sections 6(6) and 236( 1 ) of the 1979 Constitution. Now sections 6(6) (b) and 236 of the 1979 Constitution provide as follows:– ‘6(6) (b): The judicial powers invested in accordance with the aforegoing provisions of this section- – PAGE| 12 (b) shall extend to all matters between persons, or between government or authority and 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…………. ‘ ‘236(1): – Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a state shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation or claim is in issue 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. ‘ There is no doubt at all that by the above provisions, the PAGE| 13 High Court of a State is constitutionally clothed with unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability privilege, interest, obligation or claim, is in issue 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. It is equally clear that the unlimited jurisdiction so conferred includes the jurisdiction to hear and determine land ownership when properly brought before the court. However it is also very clear from section 2( 1) of Cap 25 supra that the Governor of Plateau. state has the power to appoint a Commission of Inquiry to inquire into any matter including ownership of disputed land forming part of an administrative area in respect of which, in his opinion, an inquiry would be for the public welfare. It is my further view that a Commission of Inquiry appointed with the terms of reference as in the instant case does not interfere with the jurisdiction of the High Court as conferred by section 236( 1) of the 1979 Constitution. On issue 3, learned Counsel for the appellants submitted that the lower court was in error when it formulated the second issue which it used in determining the appeal; that the formulation of that issue led to a miscarriage of justice; that the issue raised by the appellants in the lower court did not call for evaluation of evidence but whether exhibits 2 to 6 truly established the district to which. the three villages belonged and that since the trial court failed to consider those exhibits, the lower court was under a duty to do so; that exhibits 2 to 6 clearly show that there is no dispute as to where the three villages belong and urged the court to resolve the issue in favour of the appellants. On the other hand, learned Counsel for the 1st – 6 th respondents submitted that the issue in question was formulated by the lower court having regard to the pleadings of the parties and the evidence thereon; that the court is empowered to formulate issues if it would serve the ends of justice, relying on Edem vs Cannon Balls Ltd (2005) All FWLR (pt.276) 693; that the lower court did consider exhibits to 2 to 6 in its judgment particularly at page 267 of the record and urged the court to resolve the issue against the appellants. Learned Senior Counsel for the 7th respondent submitted that the Court of Appeal is at liberty to formulate issues different from those formulated by the parties if that will serve the end of justice, relying on Ogunbayi vs Ishola (1996) 6 NWLR (pt. 452) 12 at 24; that some of the grounds of appeal before the lower court, particularly grounds 1, 4, 6 and 7 questioned the evaluation of evidence by the trial court, contrary to the submission of learned Counsel for the appellants; that the lower court carefully evaluated the evidence on record and did find that exhibits 2 to 6 were tendered to show the districts to which Tudun Wada, Kabong and Dong belong, but that exhibits 8 and 9 show that there is dispute as to that fact and urged the court to resolve the issue against the appellants. To begin with, it is not correct that the issues before the lower court as formulated by the appellants did not include evaluation of evidence. Issues are formulated from the grounds of appeal filed. In the instant case, appellants did not abandon any of the seven grounds of appeal filed out of which learned Counsel for the appellants himself formulated four issues. The most important issue relevant to the question of evaluation of evidence is issue (i) which complains as follows:- ‘ (i) Whether the Learned Trial Judge properly and/or adequately considered the claim of the plaintiffs before dismissing it?’ The question is : How can a court ‘properly and/or adequately’ consider the claim(s) of a party without resort to evaluation of the evidence produced at the trial in relation to the claim(s). There is no way issue (i) can be resolved properly and satisfactorily without evaluating the evidence called by the parties at the trial. It is very clear, therefore that appellants issue (i) called for evaluation of evidence including exhibits 2 to 6 tendered by the appellants and exhibits 8 and 9 tendered by the respondents in addition to oral testimonies of the witnesses. The court, being an impartial arbitrator must always consider both sides of a case before coming to a conclusion not just the case of one of the parties as to do so will result in grave injustice. The next question is whether the issue 2 formulated by the lower court is really different from issue (i) formulated by the learned Counsel for the appellants and reproduced earlier in this judgment. Since learned Counsel for the appellants is not complaining against issue 1 formulated by the lower court, it is irrelevant and therefore not reproduced. What is relevant is issue 2, which is as follows:– ‘2 Whether the Learned Trial Judge properly and/or adequately considered the claim of the plaintiffs and the totality of the evidence led by the parties before dismissing the plaintiffs claim.” See grounds 1, 2, 3 and 4 of the appeal.” It should be noted that the lower court even indicated the grounds of appeal from which the issue in question arose. It is not the case of the appellants that the said issue 2 so formulated by the lower court does not arise from the grounds of appeal filed by the appellants. In any event, it is settled law that an appellate court has the duty to formulate issues different from those formulated by the parties if it will serve the ends of justice – See Ogunbiyi vs Ishola (1996) 6 NWLR (pt. 452) 12 at 24. Now looking at appellants’ issue (i) earlier reproduced in this judgment and issue 2 formulated by the lower court supra, are the two issues not the same in reality? The answer is very much in the affirmative. They are the same. What the lower court did was simply to add the following words to appellants issue (i), to, wit: ‘…. and the totality of the evidence led by the parties … ‘ to state the obvious. As stated earlier in this judgment, you cannot determine the issue as to whether a party established his claim without evaluating the evidence both oral and document any tendered in prove and defence of the claim. It is in resolving the issue before it that the lower court proceeded to evaluate the evidence and in fact considered exhibits 2 to 6 which were tendered by the appellants and exhibits 8 and 9 tendered by the respondents. The court found, inter alia, as follows:– In this case, the appellants in proving their case called evidence and tendered Exhibits 2 to 6 to show that the Districts to which Tudun Wada, Kabong and Dong belong had been defined; and that there was no dispute as to ownership in the three districts. The respondents called evidence in rebuttal and tendered Exhibits 8 to 9, showing details of protests, petitions and complaints received by the 5th Respondent from different various interest groups with respect to the areas in dispute. ‘ The court held that ‘while it is true that Exhibits 2 to 6 tendered by the Appellants are subsidiary legislations showing or defining the Districts to which Tudun Wada, Kabong and Dong belong, that fact does not rule out the fact that there can now (sic) be dispute and indeed that there are now disputes, be it in respect of administration or ownership of the areas ………… Faced with Exhibit 2 to 6 and the volume and variety of complaints and petitions contained in Exhibit 9, I do not think the 5th Respondent could reasonably and responsibly close his eyes to the disputes. He must do something and which he did by way of setting up the Commission of Inquiry now being challenged. On the whole, I think the Learned Trial Judge properly and adequately considered the claims of the Appellants and the totality of evidence before the court…………….. ‘ See pages 267 – 268 of the record. I agree with the lower court completely as the above exercise and conclusion cannot be faltered in any way having regards to the evidence on record. It is therefore clear that the issue under consideration has no merit and is consequently resolved against the appellants. – In conclusion, I find no merit whatsoever in this appeal which is consequently dismissed by me with N50,000.00 costs in favour of each set of the respondents against the appellants. Appeal dismissed. Walter Samuel Nkanu Onnoghen, Justice of the Supreme Court CHARLES A. AJUYAH Esq, SAN for the appellants with him are Messr B.G.L. GHOJI and E. EMAKPOR. E. PWAJOK Esq. A-G PLATEAU STA TEfor the 1st – 6th respondents with him F.B. LOTBEN (MRS) DCL PLATEA U STATE. C. U EKOMAKU Esq with Z. C. OBI Esq for 7th respondents. JUDGMENT (Delivered by MAIlMUD MOHAMMED, JSC) This appeal is against the decision of the Court of Appeal Jos Division given on 22nd November, 2000, affirming the decision of the High Court of Justice Plateau State Jos, on the interpretation and application of the provisions of Section 2 of the Commission of Inquiry Law of the Laws of Northern Nigeria applicable in Plateau State with regard to the powers of the Military Governor to establish a Commission of Inquiry under the law. The subject matter of the dispute were three wards or villages of Kabong, Tudun Wada and Dong. Two Districts in two Local Government Areas of Jos North and Jos South respectively of the State were each laying claim to the three wards or villages. The Military Governor of the State therefore constituted a Commission of Inquiry under the Law with terms of reference to submit report to him. The Appellants who felt aggrieved by the exercise of the powers of the Governor, challenged it at the High Court contending that having regard to the nature of the dispute, the provisions of the law were not applicable. The Respondents were of contrary view. The trial High Court after hearing the parties, found for the Defendants/Respondents. The Plaintiffs/ Appellants appeal to the Court of Appeal was dismissed hence the present appeal. The powers conferred on the Governor by Section 2 of the Law having regard to the subject ,matters upon which, the Commission of Inquiry could be established are very wide particularly taking into consideration of the general powers to do so by the Governor – ‘on any matter in respect of which in his opinion an inquiry would be for the public welfare.’ With this position of the law which is quite clear, I am in full agreement with my learnt brother Onnoghen JSC in his lead judgment just delivered, that the two Courts below were right in their interpretation and application of the law. Therefore I also dismiss this appeal with N50,OOO.OO costs to each set of the Respondents.