Military Governor Of Imo State & Anor V. Chief B. A. E. Nwauwa (1997)

LAWGLOBAL HUB Lead Judgment Report

E. OGUNDARE, J.S.C. 

The plaintiff (who is respondent in this appeal) was, at one time, the Eze (traditional ruler) of lzombe Autonomous Community in the Ohaji/Egbema/Oguta Local Government area of Imo State. He was so recognised by the Military Governor of Imo State by a certificate of recognition dated 8th day of July, 1979. Following allegations made against him by some members of the community which led to disturbances in the area on 12/12/87, the Military Governor in exercise of the powers conferred on him by the Commission of Inquiries Law Cap 24 Laws of Eastern Nigeria Traditional Rulers and Autonomous Communities Law, No.11 of 1981 appointed a Panel of Inquiry to investigate the allegations, particularly whether:

“1. The actions of Eze Nwauwa in the events that led to the disturbances in lzombe on 12th December, 1987 amounted to grave misconduct and in particular whether,

(i) Eze Nwauwa was irreconcilably in confrontation with lzombe Development Union;

(ii) Eze Nwauwa disregarded the community’s code of conduct by dissolving and reconstituting community’s institutions arbitrarily;

(iii) Eze Nwauwa had lost the broad or popular support of his people;

(iv) Eze Nwauwa misappropriated various specified communities’ funds viz- (a) N1,000.00(b) N1,750.00 (c) N400.00, (d) N3,000.00 (e) N890.00:

(v) Eze Nwauwa had saddled the community with payment of N8,000.00 contract variation;

(vi) Eze Nwauwa caused the suspension of scholarship awarded to members of Izombe community by Ashland Oil Company;

(vii) Eze Nwauwa forestalled a scheduled meeting of the community’s delegation with the Ashland Oil Company.”

The Panel carried out its assignment and submitted a report to the Governor. The Imo State Government issued a white paper dated 26th July, 1989 (Exhibit A in these proceedings) on the report. The white paper contained the decision of the Governor to withdraw recognition of the plaintiff as the Eze of Izombe Autonomous Community. The white paper was followed by a legal notice No. 21 of 1989 dated 10th August 1989 giving effect to the decision.

The plaintiff thereupon instituted the action leading to this appeal wherein he claimed, as per paragraph 24 of his amended statement of claim –

“(a) A declaration that S. 18 of the Traditional Rulers and Autonomous Communities Law of Imo State No. 11 of 1981 to the extent that it empowers an Administrative Inquiry to try ‘charges’ of grave misconduct and/or criminal offences is in conflict with S. 33(4) of the 1979 Constitution of the Federal Republic of Nigeria and is therefore null and void, and of no effect.

(b) A declaration that the findings of the Administrative Panel of Inquiry set up by the Imo State Government to the effect that the plaintiff is guilty of fraud, embezzlement, corruption and/or any other criminal offence is null and void, contrary to the rules of natural justice, and offends against the provisions of S. 33(4) of the unsuspended 1979 Constitution of the Federal Republic of Nigeria.

(c) A declaration that the purported decision of Imo State Government, against the plaintiff, as contained in the Imo State Government White Paper on Izombe purportedly based on the report of the Administrative Panel of Inquiry on lzombe is of no effect in law.

(d) A declaration that the purported withdrawal of the Certificate of Recognition of the plaintiff by the Imo State Government as per Imo State of Nigeria Legal Notice No. 21 of 11/8/89 based on the Izombe Administrative Inquiry and the Government White Paper on it, is unconstitutional, null and void and of no effect.

(e) An injunction restraining the defendants, their servants and/or agents, from giving effect to implementing or continuing to implement, the decisions or comments against the plaintiff, contained in the Imo State Government White Paper on ‘The Report of the Administrative Panel of Inquiry into allegations of Grave Misconduct against Eze R.A.E. Nwauwa, Eze Udo I of Izombe.”

Pleadings having been filed and exchanged and subsequently amended, the action proceeded to trial.

Evidence was led on both sides at the trial at the end of which and after addresses by learned counsel for the parties the learned trial Judge in a well considered judgment found that the allegations made against the plaintiff by members of the community and in respect of which the Governor set up a panel to investigate were partly criminal in nature and partly “immoral and unethical acts of behaviour which attract criticisms, condemnation or regarded as opprobium to the society.” The learned trial Judge also found that as regards the allegations that were criminal in nature only Section 33 of the Constitution should apply and therefore, the Panel would have no jurisdiction to investigate such acts. He also found that as regards the allegations of non-criminal acts the Panel had jurisdiction. On question of the method of determining whether the plaintiff had lost the support of his community, the learned trial Judge found that although one of the ways to determine such a question was by conducting a referendum, it was however, not the only method of assessing support. The learned trial Judge also found that the Panel conducted its affair in reference to the non-criminal allegations fairly and that the plaintiff was given a hearing. He finally found:

“I am satisfied that the Panel’s recommendation in regard to non criminal acts was in order. Pursuant thereto, the Government acted in the most acceptable legal manner in withdrawing the recognition of the plaintiff not necessarily because he has committed any criminal offence (this is not proved) but because he has breached the Code of Conduct of his office by doing acts forbidden by custom and tradition and abdicating his proper role as the custodian of the custom of his people. He became a Pariah in a community he was recognised to serve. In the end he became a king without subjects. He was deserted. The Government obviously was left with no alternative. To allow the situation to remain as it was would be horrendous and unthinkable, and may lead to total break down of law and order. The Government in the event took a decision that was the best in the circumstances. The deposition is legal.”

He thereupon dismissed plaintiff’s claims.

The plaintiff being dissatisfied with this judgment appealed to the Court of Appeal. That Court also found that the Panel of Inquiry appointed by the Military Governor of Imo State acted without jurisdiction in investigating the charges of criminal nature laid against the plaintiff. It also found that the allegations of criminal nature could not be severed from the other allegations which were of non criminal nature. Finally, it allowed the plaintiff’s appeal, set aside the decision of the trial High Court and entered judgment in plaintiff’s favour in terms of his claims.

The defendants have now appealed to this court against the judgment of the Court of Appeal upon 4 grounds of appeal. Pursuant to the Rules of this Court the parties filed and exchanged their respective Briefs of Argument. In the appellant’s brief 4 questions have been formulated as arising for determination in this appeal.

They are:

“1. Whether the issues formulated and argued by the respondent (as appellant) in the Court of Appeal were distilled from the grounds of appeal lodged in that court or arose from the judgment appealed from;

2. Whether the principle of severance does not apply to the case;
3. Whether the conduct of a referendum is the only method of determining the level of support enjoyed by an Eze and Traditional Ruler of a Community;
4. Whether the respondent’s Right of Fair Hearing was breached.”

Having regard to the judgment appealed against and the grounds of appeal, I am of the respectful view that the above questions are to be preferred to those set out in the respondent’s brief.

Question (1)

Appellants referred to the 4 grounds of appeal contained in the plaintiff’s Notice of Appeal from the High Court to the Court of Appeal and also the issues formulated by him before that court and submitted that only one of the five issues could be said to have arisen from, or predicated on, the ground of appeal. It is the submission of the defendants before this court that issues (i), (iii) (iv) and (v) formulated and argued in the court below by the respondent arose not from the judgment of the High Court but from the proceedings of the Administrative Panel of Inquiry or actions of the Military Governor which were not canvassed in the court to trial. Issue No. (iii) formulated in the court below by the plaintiff was particularly singled out by the appellant’s for comments in this Court. It is submitted as follows:

“that since the trial court did not base its judgment on the pronouncements of the Administrative Panel on the Criminal allegations and in fact declared the findings on criminal allegations as null and void, the same could not constitute a grievance for appeal nor an issue for determination by the Court of Appeal within the provisions of Sections 219 and 220 of the 1979 Constitution. It is a fundamental rule of law that a right of appeal is a creation of statute and no such right exists where there is no provision for it in the statute. See Muazu Nunku v. I.G.P. (1955) 15 WACA 23 at 24. It is therefore submitted that the Court of Appeal had no jurisdiction to deliberate on the proceedings from the Administrative Panel of Inquiry as there was no such provision in the 1979 Constitution and no appeal arose out of its deliberations.”

The respondent in his brief objected to Question (1) being entertained in this Court on the ground that it was a point not canvassed in the court below and in respect of which leave of this Court had not been sought nor obtained to raise it. The appellants have not filed any reply brief in answer to this objection. I think the objection is well taken. It was open to the defendants to object both in their brief in the court below and at the oral hearing of the appeal before that court that some of the questions raised for determination were not open to the plaintiff to canvass having regard to the grounds of appeal before that court. They did not do that. To raise that objection before this court, they would need leave of this Court and as such leave was never sought nor obtained I agree with the respondent that Question (1) is incompetent. Consequently I strike out that question as well as ground (i) of the grounds of appeal on which it is predicated.

Question (2):

This appears to me the main issue to be determined in this appeal. The learned trial Judge found that some of the allegations made against the plaintiff and which the Panel of Inquiry was directed to investigate and report on were criminal in nature and that consequently, that Panel would have no jurisdiction to determine such allegations. The learned trial judge also found that there were other allegations of misconduct which raised moral and ethical questions and as regards such allegations the Panel was competent. The learned trial Judge would appear to have disregarded the findings of the Panel of Inquiry on the criminal allegations made against the plaintiff and based its judgment on the findings of that panel in regard to the non criminal allegations. The Court of Appeal is of the view that the trial Judge acted wrongly in severing the criminal from the non criminal allegations and basing its judgment on the findings on the non criminal allegations. The Court per Edozie, J.C.A. observed:

“It is clear beyond doubt that the Government relied on the findings of the Panel both in respect of the criminal and non criminal acts of the appellant in withdrawing the recognition of his ‘Ezeship’. The learned Director of Civil Litigation, counsel for the respondents had argued that the finding against the appellant on a single allegation which is devoid of any criminality is sufficient to warrant the withdrawal of the recognition of the appellant as the Eze of his community. That is correct having regard to section 10 of Law No.11 of 1981. But it is equally correct that under the said section 10 it is not obligatory for the Government to derecognise the appellant as the Eze on proof of any allegation of misconduct against him. It is a matter for speculation whether, if the finding on the criminal allegations of the appellant were excluded, the Government could have acted solely on non criminal misconducts to withdraw the recognition of the appellant as the Eze of his community. The issue is not on whether or not a single established act of non-criminal misconduct would justify the derecognition of the appellant. Rather it is on what facts or finding of misconduct did the respondents base their decision to destool the appellant. It is evident that it is the totality of the finding of the Panel that impelled the Government in taking the decision against the appellant.

No question of severance arises. The cases cited by the learned Director of Civil Litigation seem to me irrelevant. The case of Chief Jim Nwobodo v. Chief C.C. Onoh supra and the other cases cited deal with the standard of proof in a case before a court that has jurisdiction to hear the case but in the case in hand, the question involved is not the standard of proof of an allegation of a crime but the jurisdiction of the Panel to entertain the allegation. The principle of severance is not applicable in the latter case. I am clearly of the view that the Panel’s recommendation and the Government acceptance of it and decision to withdraw the recognition of the appellant as the Eze was influenced by the findings of guilt of the appellant in respect of allegations of crimes against him which allegations neither the Panel nor the Government had the jurisdiction to determine. The Panel’s finding of guilt against the appellant in respect of the crimes alleged against him which is a nullity because the Panel lacked jurisdiction to determine his guilt, the Government’s decision to withdraw recognition of the appellant as Eze which is based on the Panel’s finding is equally a null it ‘.” (Italics are mine)

It is this passage that is under attack in this appeal.

It is contended by the appellants that the court below was wrong in regarding the non-criminal allegations as in-severable from the criminal allegations already adjudged null and void by the trial court. It is further contended that under Section 10 of Law No.11 of 1981 the Governor could withdraw recognition from a traditional ruler on any of the grounds stated in (a) to (k) of the section and as this was the case in the matter on hand that court was wrong to interfere with the decision of the trial court. Appellants further contend that the court below misdirected itself in holding that the cases of Chief Jim Nwobodo v. Chief C.C. Onoh & Ors. (1984) 1 SC 1; (1984) 1 SCNLR 1; Chief A n Omoboriowo & ors v.Chief M.A. Ajasin(1984) 1 SC 206;(1984) 1 SCNLR 108 and Godwin Nwankwere v. Joseph Adewumi (1967) NMLR 45 did decide the principle of severance.

The respondent contends that the principle of severance does not arise because it was neither a case for either party. Therefore the court below was right in holding that the allegations of criminal offences could not be severed from non-criminal allegations. To hold otherwise, contends the respondent, would amount to the court making for the party a case he did not make for himself. It is further contended by the respondent that even if the principle applies, the non-criminal allegations were not proved.

To the extent that the three cases cited above did not discuss nor pronounce on the principle of severance the court below, with profound respect, was in error. For in Nwobodo v. Onoh (supra) Bello J.S.C. (as he then was) who delivered the lead judgment of this court had this to say at pages 40-42 of the report:

“However, where a plaintiff makes an allegation of a crime in his pleadings but nevertheless can succeed in his claim without proving the crime it cannot then be said that the alleged crime was a fact in issue or directly in issue: Nwankwere v. Adewunmi (1967) NMLR 45 at 48. Denning L J. stated the rule aptly in Arab Bank v. Ross (1952) 2 Q.B.D. 216 at 229 in these terms:

‘Under the rules of pleading, as I have always understood them, a pleader who has pleaded more than he strictly need have done, can always disregard the unnecessary or surplus averments and rely simply on the more limited one.’

The scope of section 137(1) of the Evidence Act may be summarised:

Where in an election petition the petitioner makes an allegation of a crime against a respondent and he makes the commission of the crime as the basis of his petition, the sub-section imposes strict burden on the petitioner to prove the crime beyond reasonable doubt. If the petitioner fails to discharge the burden, his petition fails. However, the provisions of Section 137(1) are subject to the principle of severance of pleadings which may be stated thus: If in any civil proceeding the averments alleging a crime are severable and if after such severance there still remain in the pleadings of the plaintiff or the petitioner sufficient averments devoid of the criminal imputation against any party to the proceeding and on which the plaintiff or the petitioner can succeed in his claim or petition, then the burden of proof upon the plaintiff or petitioner is to prove his case within the balance of probability.”

And in Omoboriowo v. Ajasin (supra) Bello J.S.C. once again reiterated at pages 216- 217 of the report thus:

“In the case on hand, at the close of his case during the hearing of the petition, the petitioner abandoned the allegations of crimes. It follows therefore that in so far as the petition was founded on those allegations it must be dismissed. However, if the averments alleging crimes against the 2nd respondent were excised from the petition, there still remained in the body of the petition sufficient averments without putting directly in issue the commission of a crime by a party to sustain the petitioner.”

And in Nwankwere v. Adewunmi Brett J.S.C. delivering the judgment of this court observed at page 48 of the report:

“The evidence that the defendant refused to return the certificate in order to bring pressure on the plaintiff to pay him the final 5pounds showed a motive for his act, but as the plaintiff could have succeeded in his claim without proving any motive it cannot be said that the alleged motive was a fact in issue or directly in issue.”

Applying the principle of severance to the case on hand, it is not disputed that paragraph 1(iv) of the terms of reference of the Panel of Inquiry was ultra vires the Panel in that it requested the Panel to investigate and pronounce on the guilt of the respondent in respect of five cases of embezzlement therein contained. In my respectful view the report of the Panel in respect of that item should be expunged from the record. There was still left items (i), (ii), (iii), (v). (vi) & (vii) which were within the jurisdiction of the Panel to investigate. All these items are covered by the provisions of section 10 of Law No.11 of 1981 of Imo State and could, therefore, form the basis of any decision of the Governor in respect to the respondent.

The court below was of the view that it was a matter of speculation whether, if the findings on the criminal allegations made against the respondent were excluded, the Government could have acted solely on the non-criminal misconducts to withdraw the recognition of the respondent as the Eze of his community. That view, with respect, would appear not to be supported by the Government’s views expressed in the White Paper. In paragraph 17 of the White Paper the following appears:

17. TERM OF REFERENCE 2

“‘Having regard to the findings in 1(i) – 1(xi) above, make recommendations as to whether or not the recognition of Eze Nwauwa as the traditional ruler of Izombe should be suspended or withdrawn. (i.e. paras. 6-16 of this White Paper).

17.1 Recommendations – The Panel offers two alternative sets of recommendations, namely ‘A’ and ‘B’ as follows:

‘A’

(a) ‘Government should withdraw the recognition of Eze B. A. E Nwauwa

Comment, considering the findings of the Panel that Eze Nwauwa is guilty of fraud, embezzlement, and corruption, and in view of the fact that it has been established that he has lost support and respect of his subjects, and has become an object of public derision, ostracism and contempt, Government accepts this recommendation and directs the Secretary to the Military Government to take necessary action in accordance with section 10(e)and (f) of the Traditional Rulers and Autonomous Communities Law No. 11 of 1981.” (Italics is mine)

It would appear that Government was persuaded to withdraw recognition of the respondent by the fact that he had “lost the support and respect of his subjects, and has become an object of public derision, ostracism and contempt” and directed the Secretary to the Military Government to take action in accordance with Section 10(e) and (f) of Law No. 11 of 1981. It is appropriate at this stage to quote Section 10 of the Law. It reads:

“10. Notwithstanding the provisions of section 9 of this Law, the Governor may suspend or withdraw the recognition of a recognised Eze if the Governor is satisfied that such suspension or withdrawal is necessary:-

(a) because in a rotary system it is not his turn;

(b) because in a hereditary system he is outside the stripes;

(c) having regard to persistent acts of violation of the code of conduct by the Eze as required by the customary law of the autonomous community he represents;

(d) because he has fallen foul of any of the conditions of recognition is Section 5 of this Law;

(e) as the only means of bringing about peace, order and good government to the Autonomous Community concerned;

(f) because an allegation of grave misconduct has been proved against him as in section 18 of this Law;

(g) because he has persistently failed or knowingly and without just cause refused or deliberately neglected to perform his functions under section 17 of this Law;

(h) because he is too old or incapable of carrying on as the Eze of an Autonomous Community but is nevertheless unwilling to give up the office;

(i) because he is too old or incapable of carrying on as the Eze of an Autonomous Community but is unwilling to appoint a regent;

(j) because the tradition and custom of the Autonomous Community he purports to represent have not been correctly and properly observed in the processes leading to his recognition; and

(k) if he has resigned or abdicated his customary stool.

Having expunged from the record of the Panel the findings relating to the allegations of criminal nature, its findings accepted by the Governor in relation to the non-criminal allegations constitute, in my respectful view, grave misconduct as rightly found by the learned trial Judge.

The plaintiff in his amended Statement of Claim criticised some findings of the Panel set up to investigate allegations against him. Some of these criticisms found favour with the court below and this influenced that court into coming to its decision. The role of the court in the matter such as this is one of a review and not appellate. I once had the opportunity of restating the law in this respect. In the Governor of Oyo State and ors v. Folayan (1995) 8 NWLR (Pt.413) 292, 322-323

I said:

“As stated earlier in this judgment, the plaintiff’s case is for a judicial review of the Aboderin Commission, in relation to matters within a public body’s field of judgment the court conducts its

review from the body’s stand point and must not intervene solely on the basis that it would itself have acted differently. The following principles are to be borne in mind by a reviewing court:-

(a) judicial review is not an appeal;

(b) the court must not substitute its judgment for that of the public body whose decision is being reviewed;

(c) the correct focus is not upon the decision but the manner in which it was reached;

(d) what matters is legality and not correctness of the decision and

(e) the reviewing court is not concerned with the merits of a target activity.

In a judicial review the court must not stray into the realms of appellate jurisdiction for that would involve the court in a wrongful usurpation of power – See R. v. Secretary of State for the Home Department, Ex parte Brind (1991) 1 AC 696, 7271. The power of the court as a reviewing tribunal is better clearly stated by Lord Green M. R. in Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 KB 223, 234 when the noble Master of the Rolls said:

“The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by action in excess of the powers which parliament has confided in them.”

In exercise of his power of judicial review the court has no jurisdiction to substitute its own opinion for that of the public body whose decision is being reviewed for it is not part of the purpose of judicial review to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question: – Chief Constable of the North Wales Police v. Evans (1982) 1 WLR 1155, 160F per Lord Hailsham.

What the court is concerned with is the manner by which the decision being impugned was reached. It is its legality, not its wisdom, that the court has to look into. For the jurisdiction being exercised by the court is not an appellate jurisdiction but rather a supervisory one.”

It appears the court below exceeded its jurisdiction in trying to substitute its own views for the views of the Panel. My answer to Question (2) is that the principle of severance applies this case.

Question (3):

Section 10 empowers a Governor to suspend or withdraw the recognition of a recognised Eze if he (the Governor) is satisfied that such suspension or withdrawal is necessary. An Inquiry was conducted into the allegations made against the respondent. As a result of the findings of the Panel of Inquiry, the Governor was satisfied that the withdrawal of the recognition of the respondent was necessary.

‘It was contended at the trial that before coming to the conclusion that the respondent had lost the support of his people a referendum ought to have been conducted as opined by Oputa CJ (as he then was) in Chief S.B.O. Orisakwe v. The Governor of Imo State and ors (1982) 3 NCLR745. The learned trial Judge commenting on the view of Oputa CJ had this to say:

I do share the views of the learned Judge that one of the ways to determine loss of support is by conducting a referendum. But that mode of determining support or loss cannot with greatest respect represent the only method of assessing support. A Panel has the documents or memoranda submitted before it to work with. Being in control of the proceedings, it will be able to determine the relative force of the support the combatants enjoy and the nature of the answer given by the person whose conduct is being investigated.

The duty of this court is not to substitute its own finding to (sic) that of the Executive arm of the Government otherwise we would unwittingly be playing into the horrid and embracing arm of the

Executive and delve into executive prerogative. The Panel is an instrument that was the eye of the Government and was to all intents and purposes part of the Executive.”

In his lead judgment in the Court of Appeal Edozie J.C.A. expressing his views on the subject said:

“I agree entirely with the learned Senior Advocate for the appellant that the level of support an Eze enjoys in his community is a question of fact capable of ascertainment by evidence. Referendum may not be the only way to establish it but it is certainly, in my considered view the most satisfactory method, group of members of the community of a cultural organisation in the community may meet to pass a vote of no confidence on the Eze but on a reflection, it may turn out that the group of members of the community or the cultural organisation forms an insignificant fraction of the entire population of the community. The genesis of the appellant’s problem with his community was his disagreement with the Town Union viz: the Izombe Town Development Union under the chairmanship of Marcus Nwokoma Naanna (DW5) who was a Principal Registrar of the High Court. Members of a Town Union are supposed to be representatives of the community but it does not necessarily imply that the strained relationship between the Eze and the Town Union meant that the Eze had lost the popular support of his community. A proper assessment would have been by a referendum or head count. The argument that the Panel had no power under its terms of reference to conduct a referendum is untenable. Since it is within its terms of reference to determine as a fact whether or not the appellant had lost broad support of his people, by necessary implication, the Panel had the power to adopt an acceptable method such as referendum to establish that fact. As the panel did not conduct any referendum on the popularity of the appellant, the conclusion is irresistible that the finding by the Panel that he, the appellant had lost the broad support of his people was based on the adverse findings against the appellant in respect of the other terms of reference including those relating to the criminal offences. In my view, that is hardly a reliable guide or index to the level of support the appellant enjoys in his community.”

With profound respect to the learned Justices of the court below, I think their approach to the matter is wrong. Having conceded that “referendum may not be only way to establish the support an Eze enjoys in his community,” it follows that the Governor is entitled to adopt whatever method he considers desirable in the circumstance. I agree entirely with the exposition of the Law as stated by the learned trial Judge in his judgment. See also Alhaji D.S. Adegbenro v. Chief S.L. Akintola & Anor (1962) 1 All NLR 442 where the Privy Council held that by the words “it appears to him” employed in Section 33(10) of the Constitution of Western Nigeria, the judgment as to the support enjoyed by a Premier is left to the Governor’s own assessment and there is no limitation as to the materials on which he is to base his judgment or the contacts on which he may resort for the purpose.

The Privy Council further held that the Governor’s power of removal is not limited in such precise terms as would confine his judgment to the actual proceedings of the House of Assembly. In my respectful view it would be erroneous to say that the only way to measure the loss of support of a community given to an Eze is by referendum. The Governor is entitled to base his judgment on other materials or contacts he may choose to resort to, particularly that he is enjoined by law to empanel an inquiry.

I therefore, answer Question (3) in the negative.

Question (4):

The respondent in his further amended Statement of Claim pleaded as hereunder:

“6. On the 11th day of January 1988, the First defendant in exercise of the powers conferred by Section 3 of the Commission of Inquiry Law Cap 24, Laws of Eastern Nigeria 1963, appointed a Judicial Commission of Inquiry into the disturbances at lzombe in the Ohaji/Egbema/Oguta Local Government Area which occurred on 16th December 1987 with specific Terms of reference. The

plaintiff may found on the Government White Paper on the Report of the said Commission which White Paper is dated Wednesday 17th August, 1988, at the hearing of this suit. The defendants are hereby given Notice to produce:-

(a) The Report of the Judicial Commission of Inquiry into the Disturbances at lzombe, Ohaji/Egbema/Oguta L.G.A., on 16th December 1987, and

(b) Government White Paper on (a) above dated Wednesday 17th August, 1988.

In breach of its terms of reference, and in breach of the rules of natural justice, the said Commission of Inquiry purported to find the plaintiff guilty of serious Criminal Offences. At the hearing, the plaintiff will contend that the aforesaid Commission of Inquiry was not a ‘Court or Tribunal’ within the meaning of Section 33 of the unsuspended 1979 Constitution of the Federal Republic of Nigeria. The said Commission of Inquiry also recommended ‘the immediate removal of His Highness Eze R.A.E. Nwauwa, Eze Udo I of Izombe.’

At the hearing the plaintiff will contend that its recommendation for his ‘immediate removal’ was not only ultra vires the powers of the Commission, it was also contrary to various statutory provisions governing the removal of recognized Traditional Rulers in Imo State.

The defendants acting on the strength of the Report of and the Government’ White Paper on the aforesaid Commission of Inquiry, on the 6th day of December 1988, appointed an Administrative

Panel of Inquiry into allegations of grave misconduct against Eze B.A.E. Nwauwa, Eze Udo I of Izombe (The plaintiff).

The said Administrative Panel of inquiry had the following Terms of References:

‘(i) To ascertain whether alleged actions of Eze Nwauwa, Eze Udo I of Izombe, during his tenure of office and, in particular, in the events that led directly or indirectly to the disturbances in Izombe on 16th December, 1987 amount to grave misconduct… 2. Having regard to the findings in 1(i) – 1(vii) above, make recommendations as to whether or not the recognition of Eze Nwauwa as the Traditional Ruler of Izombe, should be suspended or withdrawn.’

11. The said Administrative Panel of Inquiry duly sat and took evidence, and submitted report. The defendants are hereby given Notice to produce the report of the said Administrative Panel of Inquiry at the hearing.
12. The Government White Paper on the report of the Administrative Panel of Inquiry into Allegations of Grave Misconduct Against Eze B.A.E. Nwauwa, Eze Udo I of Izombe dated 26th of July, 1989 will be relied upon at the trial. The defendants are hereby given Notice to produce the said Government White Paper dated Wednesday, 26th July, 1989.
13. At page 8 of the Government White Paper on the report of the Administrative Panel of Inquiry into allegations of grave misconduct against the plaintiff, the defendants commented as follows:

Considering the findings of the Panel the Eze Nwauwa is guilty of fraud, embezzlement and corruption and in view of the fact that its been established that he has lost support and respect of his subjects, and has become an object of public derision, ostracism and contempt, Government accepts this recommendation and directs the Secretary to the Military Government to take necessary action in accordance with Section 10(e) and (f) of the Traditional Rulers and Autonomous Communities Law No.11 of 1981.’

The Government of Imo State took the said decision without hearing or seeking to hear from the plaintiff nor asking for any representations oral or in writing from the plaintiff.

14. As a result of the matters aforesaid in paragraph 13 above, the First defendant again, without asking for representation from the plaintiff published Imo State Legal Notice No. 21 of 1989 dated the 10th day of August, 1989 purporting to withdraw the recognition of the plaintiff as the recognized Traditional Ruler of the Izombe Autonomous Community in the Ohaji/Egbema/Oguta Local Government Council Area.

Evidence was led to show that the respondent participated fully in the work of the Administrative Panel that was set up to investigate the allegations against him. He testified and called witnesses in his favour. That Panel later submitted its report to the Governor who acting on the report, took the decision to withdraw the recognition as Eze from the respondent. Respondent’s complaint was that he was not served with a copy of the report with a view to his commenting thereon before Government took its decision to remove him from office. It is this complaint that he termed a breach of his right to fair hearing. The learned trial Judge disagreed with him. The Court of Appeal by majority (Onalaja J.C.A. dissenting), held that he was not accorded fair hearing. Edozie, J.C.A. in his lead judgment observed as follows:

“It remains to consider the 4th and last issue for determination relating to the breach of the appellant’s right to fair hearing. The main thrust of the appellant’s counsel on this issue is that on receiving the White Paper which would constitute the charge or the accusation against the appellant, it was incumbent on the respondents to give the appellant the opportunity to respond to the Report before taking a final decision on the matter. As the respondents did not do so before withdrawing the appellant’s recognition, the appellant was denied a hearing. Consequently, the withdrawal of recognition is a nullity. The above criticism appears to be well founded.”

He supported this decision with the decision of this court in Alhaji Abdullahi Baba v. Nigeria Civil Aviation Training Centre & Anor (1991) 5 NWLR (Pt.192) 388.

The learned Justices of the Court of Appeal went on to say:

“The words underlined underscore the need for a body appointing a panel to investigate a person accused of allegations to notify that person of the adverse findings of the panel and afford him an H opportunity to defend himself before the body takes a final decision to punish him. In the case in hand, it is not disputed that the respondents on receiving the report of the Panel did not appraise the appellant of the findings on his misconduct on which they decided to withdraw his recognition. It was particularly necessary for the respondents to do so having regard to the fact that they rejected some of the findings of the Panel and substituted theirs. The appellant’s complaint about denial of hearing is justified.”

Onalaja, J.C.A. in his own judgment had this to say:

“On the issue that after the Governor issued the White Paper before the withdrawal of recognition the Governor should have served the appellant with the findings of the Panel with liberty to exculpate himself was raised in this appeal by the learned Senior Advocate for the appellant that the failure was a breach of the fundamental right to fair hearing.

The submission with the authorities relied in support especially Alhaji Abdullahi Baba v. Nigerian Civil Aviation Training Centre & Anor (1991) 5NWLR (Pt. 192) page 388 is very impressive but out of reality in the instant case. Both Baba’ s and Laoye’ s cases (supra) are based on the terms and conditions of employment which is contractual unlike the instant appeal, though there is the political theory of social contract in a democracy, I think one is stretching the matter beyond reason.

There is no provision in the Traditional Rulers and Autonomous Communities Law 1980 being Law 11of 1981 of Imo State laying down the procedure of the Civil Service Rules as to Disciplinary Procedure for civil servants, so notwithstanding the attractiveness of the contention which was accepted in the lead judgment, the facts and rules are distinguishable and there is no breach of the fundamental right of the appellant by the Governor for not making available the findings of the panel of inquiry to the appellant to exculpate himself before the Governor took the decision to withdraw the recognition as an Eze of the appellant.”

With profound respect to their Lordships Edozie and Rowland JJ.C.A., there appears to be a misunderstanding of the facts in the case of Baba v. Nigerian Civil Aviation Training Centre & Anor. The procedure laid down by this court in that case in the judgment of Nnaemeka-Agu J.S.C. appear to have been followed in the instant case. Nnaemeka-Agu J.S.C. at pages 418-419 of the report said-

“I wish to pause here to note what an employer, such as the respondents were, is supposed to do in such a situation. Where some allegations have been made against an employee such as the appellant the employer is entitled to set up a panel to investigate the allegations. Such an investigating panel is not a court of trial; so it is enough if it gives to any of the persons whose names feature in the inquiry the opportunity of making some representations, oral or written, before it. In the process of investigation, it can receive its information from any source; see on this Miller v. Minister of Health (1946) K.B. AC 120; Local Government Board v. Arlidge (1915)

AC 120; The panel of inquiry, not being a court of trial, none of the persons whose names feature in the inquiry can insist on any right to cross-examine other persons who make allegations or present memoranda at the inquiry. But once the panel has concluded its inquiry and makes up its mind that any points had been prima facie made out which point to the fault of any person, the employer must first inform such an employee of the points in the case against him and give him the opportunity to refute, explain or contradict them or otherwise exculpate himself by making any representations or defence thereto before the employer can lawfully use those points as bases for dispensing with his services.”

In the instant case there were disturbances in the respondent’s community in December 1987. The Governor set up an Inquiry into the cause or causes of the disturbances. That Inquiry found some allegations amounting to misconduct against the respondent. The Governor pursuant to the provisions of the Traditional Rulers and Autonomous Community Law No.11 of 1981 set up another Panel to investigate the allegations against the respondent. The respondent appeared before that Panel, he testified and called witnesses in his favour. That 2nd Panel later reported to the Governor who on the basis of the findings of the Panel decided to remove the respondent from office. I cannot see how anyone could say there was a breach of the right to fair hearing in a situation such as this. I agree with Onalaja J.C.A. that there was no such breach in this case and I therefore, answer Question (4) in the negative.

The final conclusion I reach is that this appeal succeeds and it is hereby allowed. The judgment of the Court of Appeal is set aside and I hereby restore the judgment of the trial High Court. I award to the defendants/appellants N1,000.00 costs of this appeal and N1,500.00 as costs in the court below.

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SC.218/1994