Tao And Sons Industries Limited V. Governor Of Oyo State & Anor (2010)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

KUDIRAT M. O. KEKERE-EKUN, J.C.A. (Delivering the leading Judgment)

This is an appeal against the judgment of the High Court Oyo State, Ibadan Judicial Division, delivered on 28/3/06 wherein the court refused the appellant’s claim for damages.

The facts that gave rise to this appeal are as follows: The appellant is a limited liability company that undertakes engineering construction work. It was awarded a contract in respect of the Ago-Amodu Water Supply Scheme by the Oyo State Water Corporation on behalf of the Oyo State Government. Sometime in 1994, the Oyo State Government set up an administrative panel of enquiry to look into the report of the audit management team on the Water Corporation as a result of allegations of fraudulent practices at the Corporation. The 1st and 2nd defendants in the suit were members of the panel. The 3rd defendant (now 1st respondent) was the Governor of Oyo State while the 4th defendant (now 2nd respondent) was the, Attorney General of the State. The appellant was never invited to appear before the panel nor confronted with any allegation. However at the conclusion of its investigations in 1995 the panel recommended that the appellant be blacklisted from undertaking any jobs for the Oyo State Government. It was the appellant’s case before the trial court that the recommendation was broadcast on State television and published in the Daily Sketch Newspaper owned by the Oyo State Government. It maintained that as a result of the decision it had suffered damages, as it had not been patronised by the Oyo State Government or other customers since then.

The case of the defendants was that the report of the panel was submitted to the 1st respondent as a confidential matter and that no white paper had been issued on it. They also contended that the appellant had not suffered any damage, as it continued to enjoy patronage from its various clients.

The appellant instituted an action before the High Court of Oyo State seeking a declaration that its indictment by the administrative panel without a hearing was wrongful, irregular and against the principles of natural justice. It urged the court to declare the indictment null and void, It also claimed N300 million as general damages.

In its judgment delivered on 28/3/06 the trial court upheld the first leg of the appellant’s claims by declaring the indictment and/or condemnation of the appellant as contained in the panel’s report null and void. The court however refused the claim for damages on the ground that the appellant’s cause of action had not accrued since the Oyo State Government had not indicated acceptance of the report by issuing a white paper.

The appellant was dissatisfied with this decision and filed a notice of appeal on 20/6/06 containing three grounds of appeal. Pursuant to an order of this court granted on 20/5/08 the appellant filed an amended notice of appeal containing two grounds of appeal. In compliance with the rules of this court, the parties filed and exchanged their respective briefs of argument. At the hearing of the appeal on 7/10/10. Bode Elemide Esq. leading J.T. Akintola for the appellant adopted and relied on the appellant’s brief dated 16/7/08 filed on 17/7/08. It was deemed properly filed by an order of this court dated 13/1/09. He urged the court to allow the appeal. Mrs. F.B. Segun Olakojo, Director Civil Litigation and Advisory Services II, Ministry of Justice, Oyo State leading Miss Adewunmi Oyeniran, Legal Officer, for the respondents adopted and relied on the respondents’ brief dated 4/9/09 and filed on 15/9/09. It was deemed properly filed by an order of this court dated 9/12/09. She urged the court to dismiss the appeal and affirm the judgment of the trial court.

The appellant distilled the following two issues for determination:

1. Whether it is only by the issuance of a white paper that respondents can be deemed to have accepted the report of a panel of inquiry or by other means such as its action or utterances or sponsored publications or whether in this suit, acceptance of the report was of any moment.
2. Whether or not in view of the evidence and general circumstances of this case and the finding that there was breach of the fundamental human rights of the appellant, the learned trial Judge was right in not awarding it damages, general or aggravated.

The respondents formulated only one issue for determination:

“Whether the trial Judge was right in refusing the plaintiff’s claim for damages?”

I adopt the sole issue formulated by the respondents, which is succinct and would, in my view, adequately resolve the issues in contention in this appeal.

In arguing this appeal, learned counsel for the appellant challenged the reliance by the learned trial Judge on the case of Abdullahi V. Hashidu (1999) 4 NWLR (600) 638 @ 646 C – D and his holding that the only means by which the Oyo State Government could signify its acceptance of the panel’s report was through the issuance of a white paper. He submitted that the court in Hashidu’s case did not decide that the issuance of a white paper was the only mode of accepting the recommendation of a panel of inquiry. He contended that the court merely observed that in the normal course of governance the issuance of a white paper is the means by which Federal, State or Local governments manifest acceptance of a report or inquiry. He argued further that in any event, the claim, which was an attack on the report, was not dependent on a formal acceptance thereof by a white paper. He submitted that the lower court having found that the indictment was null and void, the issuance or non-issuance of a white paper was of no moment.

He submitted that the case of Cookey V Fombo 22 NSCQR 411; also reported in (2005) 15 NWLR (947) 182 also relied upon by the learned trial Judge is distinguishable from the facts of this case because in that case the plaintiff sought to rely on the recommendation of the Major David Mark Implementation Committee on Abandoned Properties as the basis for a claim against a third party. He noted that the Supreme Court held in that case that without the issuance of a white paper, the recommendation of the committee could not confer a right of ownership of the property on the plaintiff/1st Respondent.

He submitted that in the instant case the appellant’s claim was not against a third party but against the “architects of the panel” for the deprivation of its fundamental rights. He submitted that since the recommendation of the panel gave rise to a cause of action leading to a finding that the report of the panel was null and void, the same recommendation gave the appellant a cause of action to be compensated in damages for the said breach of its constitutional rights. He submitted that the panel deliberated on the report on 20/9/95 and that the panel’s decision was relayed on the respondents, radio/television station, Broadcasting Corporation of Oyo State (BCOS) and also published in the Daily Sketch Newspaper owned by the respondents on 21/9/95. He urged the court to hold that the appellant’s claim was not dependent on any white paper but was based on the breach of its constitutional right to fair hearing.