The Chairman, National Population Commission V. The Chairman, Ikere Local Government & Ors (2001)

LAWGLOBAL HUB Lead Judgment Report

AYOOLA, J.S.C.

The main question in this appeal is whether the procedure adopted by the Census Tribunal in trying on affidavits the complaint brought before it by the respondents pursuant to the National Population Commission Act Cap.270: Laws of the Federation of Nigeria. 1990 (as amended and further amended) (“the Act”) has vitiated the proceedings.

By section 1 of the Act the National Population Commission (“the Commission”) was established for the Federal Republic of Nigeria. By section 6(a) the Commission is to:

“undertake the enumeration of the population of Nigeria periodically, through censuses, sample surveys or otherwise” .-

Section 26A of the Act, as amended by the National Population Amendment Act, 1991. provides that:

“There shall be established in designated centre Census Tribunal to hear complaints and objections to census results as they relate to the specific Local Government Areas or localities.”

The Act as amended by the 1991 amendment Act was further amended by the National Population Commission (Amendment) Decree 1992 (Decree No.26) which introduced subsection 7 of section 26A of the Act, sub-section 7 of section 26A provides that:

“The rules of procedure to be adopted by the Census Tribunal in hearing complaints and objections to census results shall be as set out in the Third Schedule to this Act”

The Third Schedule prescribed comprehensive rules of procedure to be followed by the Census Tribunal.

In determining the main issue in this appeal, the true path of enquiry is whether the prescribed procedure for the Census Tribunal justified the procedure adopted by the Tribunal. The Third Schedule made provisions covering several aspects of procedure, including the presentation of complaint, the contents of complaint and several others. However, only some of them which have bearing on this appeal need be highlighted. Paragraph 15(2) provides as follows:

“The Tribunal in the hearing and determination of the complaint shall not be obliged to confine its inquiry or findings to the issues raised by the complaint and the reply, if any, and may, with or without ordering or allowing-

(a) the amendment of any statement of the facts and grounds relied upon in support of the complaint or the amendment of any admission or denial contained; or

(b) the facts or grounds set out in the reply (but subject always and having due regard to the time limited by paragraph 2 of this Schedule for presenting a complaint), inquire into any other issue otherwise raised or apparent or any matter otherwise appearing, as the Tribunal may deem necessary for the purpose of the full and proper determination of the complaint.”

Paragraph 17 of the Third Schedule provides that:

“Every complaint shall be heard in open court.”

Paragraph 22 provides that in the event of the Chairman of the Tribunal who begins the hearing being disabled by illness or otherwise, it may be recommenced and concluded by another Chairman to be appointed by the Chief Justice of Nigeria. Paragraph 37 (1) gives the Tribunal power to call witness. It provides that: “On the hearing of a complaint, the Tribunal may summon any person as a witness who appears to the Tribunal to have been concerned in the census”

Paragraph 37(2) provides that:

“The Tribunal may examine any witness so summoned or any person in the Tribunal although such witness or person is not called and examined by any party to the complaint, and thereafter he may be cross-examined by or on behalf of the complainant and the respondent.”

Finally, paragraph 45(1) provides that:

“Subject to the express provisions of this Schedule the practice and procedure of the Tribunal in relation to a complaint shall be assimilated as nearly as may be to the practice and procedure of the High Court in the exercise of its civil jurisdiction, and the Civil Procedure Rules or Civil Procedure Code shall apply with such modifications as may be necessary to render them conveniently applicable, as if the petitioner and the respondent were respectively the plaintiff and the defendant in a civil action.”

Pursuant to the powers conferred upon it by the Act the Commission conducted the enumeration of the population of Nigeria through a census between the 27th and 30th November, 1991. The Commission returned a figure of 59, 527 for the Ikere Local Government. The respondents in this appeal for themselves and on behalf of the entire members of the Community of Ikere Local Government presented a complaint to the Census Tribunal alleging, among other things, that the results relating to the Ikere Local Government of 59,257 were erroneous, unsustainable and grossly inaccurate. In their complaint they advanced severally reasons why the returns could not have been accurate. They referred to what they chose to describe as “accepted norms and principles of population dynamics”, they alleged a confirmation of “the prejudices and misconceptions which led to the Commission’s negative head count in Ikere Local Government”, they called in aid political history of the area and its environs and the political, educational, social and economic development of the area over the years. The Commission says in this appeal that all of these are theoretical. However, in paragraph 12 of the complaint the respondents alleged that

(i) the enumeration centres allocated to Ikere Local Government were grossly inadequate;

(ii) there was shortage of enumerators as a result of which many people were not counted particularly in the hamlets and farmsteads; and,

(iii) many enumerators were not present during the period of enumeration. They alleged in their paragraph 5 (c) “underlying prejudices and misconceptions.”

The Commission for its part, in its reply averred in paragraph 3 that:

“In further answer to paragraphs 5, 6 and 7 of the objection, the respondents aver that they employed a de facto enumeration method, as distinct from the de jure method, whereby only persons physically seen by the enumerators within an enumeration area between the 27th to 30th November, 1991 (hereinafter called ‘the census period”) were counted”

In paragraph 7 of the reply they averred that no farmstead, hamlets or villages were left uncounted and that they engaged a sufficient number of enumerators for the census exercise. There were, without doubt, factual issues to try in the matter having regard to the complaint, taken in its totality, and the reply.

As confirmed by the Preface to the Decisions of the Census Tribunal on the 1991 National Census Exercise, evidence was ordered by the Tribunal to be given by affidavit. Affidavit and counter affidavit were subsequently filed. Early in the Preface the Tribunal limited itself by making it clear that in arriving at a decision, it had not taken into consideration arguments not germane to the simple fact of de facto counting. It stated that:

“Statistical data supplied by the complainants which cannot be verified and which were not requested for on the N.P.C. 01 forms are considered irrelevant for our decision. N.P.C. 01 forms comprise questionnaire for which enumerators sought and received answers from physically present members of households. Evidence on these forms constitute the major evidence of whether a person or persons in the area were counted.”

In another part of the Preface, the Tribunal stated that:

“………in the peculiar circumstance of matters which this fact-finding Tribunal has to decide, we are of the view that the evidential burden of establishing non-enumeration by the Complainant is not discharged by the mere listing of places or persons not counted. The complainant has to prove that the complain is genuine by convincing evidence of the existence of the persons and/or of the localities between the 27th to 30th November, 1991” (Emphasis mine)

The affidavit, counter-affidavits and further affidavits placed before the Tribunal on the factual issues were in conflict. The affidavits in support of the complaint consisted of affidavits of enumerators and residents of the area. For its part the Commission, denied the facts deposed to in the affidavits of the respondents’ witnesses and produced enumeration forms. Commenting on the affidavit of the two enumerators who swore to facts in support of the respondents’ case, the Tribunal said that having assessed “the quality and contents” of their affidavit evidence it was of the view they were untruthful. It held that the respondents have not proffered any satisfactory evidence to support partial enumeration of any locality”. It also found that: “every village, hamlet, farmstead or household, said not to have been enumerated by the respondents have been accounted for and shown enumerated with exhibits to support the affidavit evidence” In one instance, concerning enumeration of the College of Education, there were affidavit, counter affidavit, further affidavit and further counter-affidavit all conflicting on facts.

At the end of the trial on affidavits the Tribunal came to the conclusion that:

“On the evidence before us. we find that the witnesses for the complainants have not been very truthful. All the places which they swore were not counted, were indeed counted.”

In the result it held that the provisional census figures released for Ikere Ekiti Local Government Area was valid.

The respondents appealed to the Court of Appeal, where, as can be expected, one of their main complaints was that the procedure adopted by the Tribunal was erroneous. The issue was raised thus:

“Whether the Tribunal was not in a fundamental error in not directing that oral evidence be given to resolve the many irreconcilable conflicts in the diverse affidavits, counter-affidavits and replies to counter affidavits field by the parties before making use and relying on same.”

The Court of Appeal, in a unanimous decision had no difficulty in answering in the affirmative. Akpabio, JCA. who delivered the leading judgment of the Court of Appeal described the procedure adopted by the Tribunal as very strange, grossly irregular and very unusual. In the result, that court concluded that: “The trial or purported trial in this case must therefore be set aside and a fresh trial ordered.”

On this appeal by the Commission from the decision of the court below, three issues were raised by learned counsel for the Commission. However, since the decisive and fundamental issue is as regards the procedure adopted by the Tribunal, it will be sufficient to resolve the appeal on that issue. The substance of the well presented arguments advanced by Mr. Ezekwueche, learned counsel for the Commission, is that a census suit is not like what he described as “the usual run-of-the-mill” suits where only oral evidence must be used or called to resolve conflicts. Proceeding from this standpoint he submitted that it is not in every case where oral evidence is not used to resolve conflicts in affidavit that the court sets aside the trial for a new one, and that for a trial to be set aside, there must be an issue or matter so fundamental or pertaining to the substance of the dispute between the parties which would not have been otherwise resolved without recourse to oral evidence. In his submission, the Tribunal was justified in making use of documentary evidence to resolve the conflicts in the affidavit of the parties, such documentary exhibits being N P.C. 01, which in learned counsel’s submission held the key to the resolution of the question regarding whether or not a person or place was enumerated or partially enumerated.

For his part, Chief Olanipekun, learned counsel for the respondents, submitted that the Third Schedule to the Act rather than direct that the Tribunal should limit the hearing to affidavits by several of its provisions enjoins and encourages that oral evidence be taken. He submitted that it is now settled law that where, as in this case, a court is faced with affidavits which are irreconcilably in conflict, the Judge hearing the case in order to resolve the conflict properly, should first hear oral evidence from the deponent or such witnesses as the parties may be advised to call.

Evidently, both counsel accept and acknowledge the authority of cases such as Olu-Ibukun v. Olu-Ibukun (1974) NSCC 91; Falobi v Falobi (1976) NSCC 576 and Akinsete v. Akindutire (1966) 1 All NLR 147, (1966) NSCC 147. The principle for which they stand is not difficult to state, and I state it simply thus: where the affidavits conflict on a disputed material fact, a court called upon to resolve an issue of fact sought to be established by the conflicting affidavits should not resolve such issue merely on the conflicting affidavits but should hear oral evidence from the deponents and such other witnesses as the parties may be advised to call. As can been seen from these cases, the principle is not limited to particular types of proceedings but is applicable to a variety of proceedings. Akinsete v. Akindutire were proceedings to set aside sale of attached property on allegation of misconduct and undervalue; Olu-lbukun v. Olu-Ibukun were proceedings in an application for alimony pendete lite made pursuant to s.70(2) of the Matrimonial Causes Decree, 1970; Falobi v. Falobi related to an originating application brought on the ground of willful neglect to maintain children. None of these proceedings were writ cases.

Any claim that evidence by affidavit is absolutely prohibited in the trial of an action will be as extravagant as a claim that trial by affidavit is completely unrestricted. As an example, in the Uniform Rules introduced in 1987 by the Nigerian Law Reform for adoption by the High Courts and which, on the authority of Aguda, Practice and Procedure of the Supreme Court. Court of Appeal and High Courts of Nigeria, 1995, paras. 1.09, have been adopted by most of the courts with the notable exception of Lagos provision was made in Order 39, r.2 as follows:

“1. The court or a Judge in Chambers may, at or before the trial of an action, order or direct that all or any of the evidence therein shall be given by affidavit.

2. An order or direction under this Rule may be made or given on such terms as to the filing or giving of copies of the affidavits or proposed affidavits and as to the production of the deponents for cross-examination as the court or Judge in Chambers may think fit but, subject to any such terms and to any such subsequent order or direction of the court or a Judge in Chambers, the deponents shall not be subject to cross-examination and need not attend the trial for the purpose”. (Italics mine)

This, obviously, is an exception to rule 1 of the same Order which provides that:

“Subject to these Rules, to the Evidence Act, and to any other enactment relating to evidence, any fact required to be proved at the trial of any action commenced by writ by the evidence of witnesses shall be proved by the examination of the witnesses orally and in open court.”

Commenting on similar provisions in 0.38. r.2 of the English Rules of the Supreme Court, the learned editors of the English Annual Practice 1999, at para. 38/2/1, stated that: “it is not practicable to make such an order where the evidence will be strongly contested and its credibility depends on the court’s view of the witness.” Similarly, in Aguda, (op. cit) commenting on 0.39, r.2 of our Uniform Rules, it was stated that:

“The discretion of the trial court to order that all or any of the evidence required in a trial be given by affidavit must be exercised with care since it is in the interest of justice that in case where there are serious disputes as to facts witnesses testifying to the facts should be subject of cross-examination by the opposing party”.

Neither 0.39, r.1 nor r.2 applies to proceedings begun by originating summons, or by motion or petition in which evidence by affidavit is the rule rather than the exception. In this case the proceedings are begun by complaint but paragraph 45 of the Third Schedule to the Act provided in effect that the proceedings shall as far as possible be assimilated to one as between a plaintiff and a defendant for the purpose of the application of the High Court rules of procedure.

Whether proceedings may be heard entirely on affidavit evidence or not is not to be determined by the form of the proceedings but by the nature of the issues and the parties’ reaction to the facts in issue in the proceedings. Where there is no contentious issue of fact in the proceedings, no reasonable objection can be taken to a hearing on the affidavits. It is when there is serious dispute as to facts to be resolved that trial on affidavits is inappropriate.

In this case there is a serious misconception in the approach of learned counsel for the Commission and of the Tribunal itself.

They were both under a misconception in thinking that disputed facts are resolved by the production of enumeration Forms N.P.C. 01 and, in holding the view that reliance on demographic theories, historical background and socio-political events, which may show the serious improbability of the accuracy of the figures declared by the Commission and put a serious question mark on the accuracy of the figures declared and the efficiency of the entire exercise itself, together with the allegation of bias in the conduct of the exercise are all irrelevant.

The value and weight to be attached to the N.P.C. 01 forms themselves are dependent on the oral evidence of the enumerators on the one hand and the witnesses who challenged not only the accuracy of the enumeration but also of the general conduct of the exercise on the other. To hold otherwise would elevate the forms to conclusive evidence of what they declared when the law does not so provide. Even if the forms are presumptive evidence of the facts recorded therein, and I do not so decide, they cannot be such evidence of the flawlessness of the exercise. Production of the forms in evidence cannot by itself be an answer to allegation of partial enumeration or of bias in the conduct of the exercise. The case of Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688 and Fashanu v. Adekoya (1974) 1 All NLR 35. 48 on which learned counsel for the Commission relied are not apt. In Nwosu’s case, this court while acknowledging the authority of such cases as Falobi v. Falobi, and Akinsete v. Akindutire went on to say that: “it is not only by calling oral evidence that such conflict could be resolved. There may be authentic documentary evidence which supports one of the affidavits in conflict with another.” In Fashanu v. Adekoya the documentary evidence referred to were mostly documents emanating from the defendant which tended to dent his credibility. In that case the value of the trial court not only hearing but also seeing the witnesses in order to ascribe credibility to their evidence was not whittled down. In this case if the forms NPC-01 had been the respondents’ forms or if the respondents had admitted or accepted their contents, for instance, by endorsing them, the Commission’s argument in this regard would probably have been unanswerable. But that is not the case.

On numerous issues of fact, the affidavits were in serious conflict. For a fact-finding tribunal, such as the Tribunal in this case, to claim to be in a position to comment on the credibility of witnesses it has neither heard nor seen and, whose credibility has not in any way been affected by any documentary evidence that is capable of being a challenge to their credibility, is a feat which the law neither recognises nor accepts. In the circumstances of this case, there cannot be any reasonable doubt that the proceedings were seriously flawed by the procedure adopted by the Tribunal. Notwithstanding that the procedure adopted by the Commission may have been good intentioned in an effort to dispose of as many complaints as possible within a limited time, proceedings cannot be hurried at the expense of justice. Justice delayed, it is often said, is justice denied, but it is equally true that justice hurried may be justice buried. As I read several provisions of the Act, trying the complaint by affidavits should be more of the exception than the rule. That exception can only be justified where there is no serious dispute as to the facts. That is not the position in this case.

Learned counsel for the Commission took an unduly narrow view of the issues in the case when he argued that several of the facts deposed to in the affidavits in support of the complaint and comments of the court below on facts which were disputed, were outside issues raised by the complaint. As rightly pointed out by Chief Olanipekun, learned counsel for the respondents, the Tribunal is not limited by such issues having regard to the provisions of paragraph 15(2) of the Third Schedule.

Thus, even if Mr. Ezekwueche was right in his submission that the issues raised in the complaint were narrower than those disclosed in the affidavits, and I do not decide that they were, paragraph 15(2) shows that the Tribunal could not close its eyes to the numerous facts disclosed in the affidavits which were relevant to the validity of the entire exercise and which were disputed facts.

From the facts of this case it is clear that the complaint was not such that should have been heard entirely on affidavits. The procedure adopted by the Tribunal was contrary to well established principles and is not in accord with the spirit of the rules of procedure contained in the Third Schedule. The court below was right in holding that the entire proceedings were vitiated by the procedure adopted by the Tribunal and that the judgment of the Tribunal should be set aside.

I feel no hesitation in dismissing this appeal, but not without commenting on the care with which counsel for the parties have prepared their briefs and not without commending them on the lucid presentation of their respective arguments. Much assistance has been derived from the clarity of their reasoning which, I must say, is worthy of emulation by other counsel practising before this court. Be that as it may, I dismiss the appeal with N 10.000 costs to the respondents.

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SC.111/1997