Omenka Mathew Ode & Ors. V. Attorney General Of Benue State & Ors. (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A. (Delivering the Leading Judgment)

By an Originating Summons filed on 22/6/09 at the High Court of Benue State, Makurd Division, the appellant herein, for himself and on behalf of indigenes of Ogengeng-Ukpa Community of Oju Local Government Area of Benue State sought the following reliefs against the respondents:

a. “A declaration that section 19 and 22 of the Commissions of Inquiry Law, Cap. 40 Vol. 1 Laws of Benue state of Nigeria 2004 are unconstitutional, null and void being inconsistent with sections 6, 36 and 46 of the Constitution of the Federal Republic of Nigeria 1999, Cap. C23, Laws of the Federation of Nigeria 2004 and amounts to a breach of the fundamental rights of the applicant as enshrined in sections 6, 36 and 46 of the Constitution.

b. A declaration that the 2nd Respondent lacks the power to constitute an administrative Commission of Inquiry with such absolute powers as contained in the Commission of Inquiry Law Cap. 40 Laws of Benue State 2004, the conducts (sic) and actions of whose members cannot be questioned or challenged in any court of law and the outcome of which inquiry cannot be challenged by the applicant or any person affected thereby except at the instance of the 1st respondent having regard to sections 6, 36 and 46 of the Constitution of the Federal Republic of Nigeria 1999.

c. A declaration that the Administrative Commission of Inquiry set up by the 2nd Respondent as contained in and vide Benue State Gazette No 14 of 2009 with the 5th Respondent as chairman, the 6th Respondent as secretary and the 7th to 9th Respondents as members is illegal and all actions and/or steps taken in furtherance of same null, void and of no effect whatsoever same having not being constituted in a manner to secure its independence and impartiality as required under section 36 of the constitution of the Federal Republic of Nigeria 1999.

d. A declaration that even if the relevant sections or provisions of the commissions of Inquiry Law Cap. 40 Laws of Benue State of Nigeria 2004 complained of herein are not unconstitutional and the Administrative Commission of Inquiry on C.O.E. Oju students’ crisis set up there under by the 2nd respondent is lawful, the conduct of the 5th – 9th respondent as members of the commission as well as the submissions of Mr S.T Sule on 29/04/2009 as the commission’s lawyer (which they adopted, ignored and/or became indifferent about) prejudging the issues before the commission in favour of one of the parties namely; the Tiv students, against the applicants and his people before parties are heard grossly undermine and/or erodes the oath of faithfulness and impartiality of members of the commission taken pursuant to section 5 of the said law; and as such imputes bias and lack of impartiality to the members and renders the membership of the said Commission as presently constituted incompetent to continue to act as members or adjudicate further over any matters affecting the applicant or relating to his rights and those of his community before the Commission.

e. An order dissolving the Administrative Commission of Inquiry on C.O.E. Oju students crisis set up by the 2nd respondent by virtue of Benue state Gazette No. 14 of 2009 pursuant to the Commissions of Inquiry Law Cap. 40 Laws of Benue State of Nigeria 2004, same being illegal and unconstitutional having regard to sections 6, 36, and 46 of the constitution of the Federal Republic of Nigeria 1999.

f. A declaration that the compulsory acquisition of vast areas of the Applicant’s personal lands and those of other indigenes and/or members of his Ogengeng-Ukpa Community of Oju Local Government Area of Benue State by the 1st to 3rd Respondents as campus of the 4th Respondent without compensation to date is illegal and/or unlawful and amounts to a breach of the fundamental rights of the applicant under section 44 of the 1999 constitution of Nigeria.

g. The sum of N10,000,000,000.00 (Ten Billion Naira) only in favour of the applicants against the 1st to 3rd Respondents, jointly and severally, as compensation for the applicants’ land and those of his Ogengeng-Ukpa Community compulsorily acquired as campus of the 4th Respondent.

h. The sum of N500,000.00 (sic) (Five Hundred Million Naira) only against the 1st to 4th Respondents, jointly and severally, in favour of the applicants, as damages for damage variously suffered by the applicant and other members of his Ogengeng-Ukpa Community of Oju Local Government Area of Benue State as a result of the 4th Respondent’s student’s cum staff actions and riot of 03/03/2009.”

The summons was supported by a statement setting out the grounds for the summons and the reliefs sought. It was also supported by an affidavit verifying the facts with exhibits marked A – H attached thereto. The respondents filed a 5 paragraph counter affidavit dated 29/6/09 to which the appellant filed a 4 paragraph reply dated 7/7/09. Further exhibits were annexed to the reply and marked J, K and L respectively. The parties submitted written addresses in support of their respective positions. In a considered judgment delivered on 23/7/09 the learned trial Judge dismissed all the appellant’s claims. Being dissatisfied with the decision he filed a notice of appeal dated 12/8/09 containing 10 grounds of appeal.

In compliance with the Rules of this Court the parties duly filed and exchanged briefs of argument. At the hearing of the appeal on 9/6/2011, O.M.A. ODE ESQ. appearing in person adopted and relied on his brief of argument dated 22/12/09 and filed on 28/12/09. He urged the court to allow the appeal and grant all the reliefs sought. E.I. YANGE ESQ. Principal State Counsel I, Ministry of Justice, Makurdi, Benue State adopted and relied on the respondents’ brief dated 9/11/2010, which was fifed pursuant to an order of this court made on 4/11/2010. He urged the court to dismiss the appeal.

The appellant distilled the following issues for determination from the ten grounds of appeal:

1. Whether a party claiming a declaration in a land matter to nullify official act taken against his interest as in the instant case, is required to establish title to the land as a condition precedent and if not, whether the learned trial judge was right when he held that for the plaintiff/appellant to be entitled to relief (f) and (g) as contained in paragraph 28 of his state of facts in support of the originating summons in this suit, how he and the community he represents came to own or inherit the land in question and whether the plaintiff is himself a chief or leader of the community must be proved.

In other words, whether the identity or the title to the land in question or the status of the plaintiff and his community was an issue before the court in this suit, particularly when the learned trial judge had held earlier in the same judgment (at paragraph 3 page 265 of the records) that the plaintiff and his community are competent to institute this action, (Grounds 1 & 2)