Enugu State University of Science & Technology V. Institute of Journalism, Management and Education Ltd. & Anor (2008)

LawGlobal-Hub Lead Judgment Report

MOHAMMED, L. TSAMIYA, J.C.A.

This is an appeal against the Ruling of the Enugu State High Court, delivered on 12/7/2002 in suit No. E/31/2002.

The appellant as the defendant was sued by the respondent as plaintiff at the State High Court Enugu (herein referred to as the trial Court) claiming the following reliefs:

(i) A DECLARATION that based on the agreement, supported by value consideration made and existing between the Plaintiff and the Defendant, the plaintiff is entitled to use the express or expressions showing the fact of validation of the institute’s courses by the Defendant.

(ii) N100 million (One hundred million naira) damages for the injuries suffered by the Plaintiff as a result of Defendant’s persistent malicious and injurious propaganda against the Plaintiffs Institute.

(iii) AN INJUNCTION restraining the Defendant, its servants agents, members of staff, workmen, employees in whatever capacity or any person or persons working under its direction authority or supervision, from:

(a) Further spreading of any negative or injurious falsehood, PARTICULARLY from denying that it, infact, validated the course of studies of the Plaintiffs institute.

(b) Denying or prohibiting the Plaintiff from expression the fact of validation of the courses offered by the Institute by the Defendant and/or writing letters, circulars, documents to any person or persons whether within or outside Nigeria, denying the fact of validation of Plaintiffs courses and syllabuses by the Defendant.

(c) From trespassing into the premises of the Plaintiff, molesting, intimidating or disturbing the Plaintiff in any way or manner with the Institution’s subject or course of studies.

Pleadings were ordered, filed and exchanged.

The facts of the case that prompted the action are as follows.

The appellant is a creature of Enugu State Edict NO.6 of 1996. By its section 6(2), the Governor as visitor is empowered to set up visitation panel into the affairs of Appellant University. In exercise of his power, the Governor set up a visitation panel under the chairmanship of Hon. Justice Umezulike. There was public out cry about the membership of the panel and the appellant University strongly protested against the chairmanship of Hon. Justice Umezulike, who was former lecturer in the University. Despite the protest letter, Hon. Justice Umezulike continued as chairman of the said visitation panel to the end. The panel submitted its report in April 1998 to the visitor who, after considering the circumstances surrounding the Report and in particular the fact that the chairman was a former staff of the University, rejected the report in it’s entirely. As a result of the recommendation made by the visitation panel, the respondent took the present action before the same Judge who was the chairman of the said visitation panel.

In the pleadings filed and exchanged between the parties, all the facts that will enable the trial judge disqualify himself were pleaded and the disqualifying factors were known to the trial judge. As the case progressed there was the expectation that on his own, without any formal application should conform to the Rules of professional conduct and disqualify himself having regards to the circumstances contained therein. This expectation never materialized, and when it became obvious that he was bent on proceeding with the case as if nothing had happened or pretending that he knew nothing about, and out of desperation to obtain justice, a formal application was filed in his court. Yet the trial judge refused to transfer the case to another court. There are more than fifteen judges in the Enugu Judicial Division alone. The applicant’s/appellant’s application was refused and dismissed.

It is against his ruling, refusing to transfer the case that the appellant have appealed to this court on four grounds of appeal as contained in the Notice and Grounds of appeal.

In accordance with the practice of this Court, the appellant, with the leave of this court filed her brief of argument out of time which brief was deemed filed with effect from 28/6/2007, On receipt of the appellant’s brief, the respondent filed their brief of argument on 10/9/2007. In her brief, the appellant formulated 3 issues from the four grounds of appeal as follows:

(1) Whether paragraphs 11 and 12 or any other paragraphs of the affidavit violates section 4 of the official Secret Act, Cap, 335 Laws of the Federal of Nigeria 1990 and whether the entire affidavit is false.

(2) Whether the trial judge is entitled to raise an issue suo motu and decide upon it without giving the parties opportunity to address/comment on the issue.

(3) Whether without paragraphs 11 and 12 there were sufficient materials to support the application urging the court (sic) to disqualify himself (sic)

In the respondents’ brief of argument, there is only one issue raised by the respondent as follows:

“Whether the decision of the trial court appealed against is not right, for reason that ab-initio the appellant has no cause of action as its application was hinged on contents of a Judicial Commission of Inquiry Report, made to Enugu State Government which is not gazetted or white paper issued”

Taking into consideration the circumstances of this appeal including the grounds of appeal filed, the issues formulated by the appellant are apt and direct, and I shall therefore determine this appeal on the issues formulated by the appellant.

ISSUE NO.1

The complain of the appellant under this issue is on the learned trial judge’s reliance on paragraphs 11 and 12 of the affidavit in support of the application, which paragraphs he said offended section 4 the secret Act of 1990 (herein referred as the Act). The learned counsel for the appellant submitted that even if the two paragraphs offended the Act, which he did not concede, there are 21 remaining paragraphs of the affidavit which are sufficient to support the application, had the learned trial judge spared time to consider same on their merit. He also submitted that, section 4 of the Act which the learned trial judge relied on is irrelevant and not applicable in the circumstances of this case being that paragraphs 11 and 12 were copied from Newspapers as the panel handed their report to the news media which made the report public. Secondly the report itself is not of a Judicial Commission of Inquiry, and thirdly, deponent to the affidavit was not one of those who subscribed to the oath of Secrecy, and as such he is not in breach of that Oath. Learned Counsel further submitted that since the report was made public through the news media, any secrecy if any that could possibly be attached to the report was lost. He also submitted that the learned trial judge injected his personal view into the matter by assuming that the entire 23 paragraphs of the affidavit in support of the application are false since there was no counter-affidavit. He said that the trial judge is not allowed to inject his personal view, and this wrong assumption robbed the learned trial judge of the opportunity to appraise the contents of the affidavit.

The respondent’s counsel did not make any submission in response to this issue.

I have gone through the provisions of section 4 of the Act and the section is talking about the control of mail for which the minister is empowered to make regulations but not dealing with the transmitting, obtaining or reproducing any report of a Judicial Commission of Inquiry. Therefore the said section 4 of the Act has no relevance and inapplicable to this matter in issue.

I think the relevant provision to the issue under consideration and to which the learned trial judge had in mind is section 1 (1) of the official Secret Act (supra). This section provides for the protection of official information. But that protection is not absolute because the subsection (1) (a) and (b) of the section is subjected to subsection 3 of section 1 of the Act.

Sub-section (1) says:-

“(1) subject to sub-section (3) of this section, a person who:

(a) transmits any classified matter to a person to who he is not authorised on behalf of the government to transmit it, or

(b) Obtains, reproduces or retain any classified matter which he is not authorised on behalf of the government to obtain, reproduce or retain, as the case may be, shall be guilty of an offence.” (underline mine).

By the above provision of the Act it is a criminal offence under the Act for a person acting on behalf of the Government to leak out classified matter etc. to whom he is not authorised to leak it to. “classified matter” is defined by the same Act to mean, “any information or thing which under any system of security classification from time to time in use by or by any breach of the government, is not to be disclosed to the public and of which the disclosure to the public would be prejudicial to the security of Nigeria” (underline mine). See section of the Act.

The question now is, is the content of the report of the panel, quoted under paragraphs 11 and 12 of the affidavit in support of the application, is “a classified matter” taking into consideration the circumstances of this case?

From the brief of the appellant it was submitted that there was no evidence to show that the extracts quoted in the affidavit or the main report was placed as classified, and this fact was not denied by the respondent. Consequently, I am of the view that non is classified matter. Similarly, it was submitted by the learned counsel for appellant that the report of the panel was made public through news media who received copies of the report from the panel. This submission also was not denied. Even if it is classified matter; since the report was handed over to the news media, and the news media published it to the public, the appellant, who was, in the view of the learned trial judge, have committed a criminal offence under the Act) could not reasonably have been expected to believe that it was classified matter, so he cannot be said to have committed the criminal offence, by virtue of section 1 (3) of the Act.

For what I said above, this issue is resolved infavour of the appellant and I hold that paragraphs 11 and 12 or any other paragraphs of the affidavit did not violates section 4 of the Act (supra).

ISSUE NO.2:

The appellant’s complain under this issue contred on the trial judges raising suo – motu the issue of Official Secret Act and at the same time used the application of that law to determine the application before him and dismiss it.

It was the submission of the learned senior Advocate for the appellant that the trial judge should have given counsel to the parties the opportunity of addressing the court when the trial judge introduced section 4 of the Act and Rule 2 (B) & (C) of the Rules of Professional Conduct for Judicial Officials, but the learned trial judge did not do so. A number of legal authorities relied on were cited in the brief.

In response, the learned counsel for the respondent submitted that the learned trial judge has the right to take judicial notice of section 4 of the Act and applied same in the determination of the appellant’s application without putting them (sic) on notice. That the rule of natural justice has no application in the determination of issue of jurisdiction/competence, and some authorities cited in the brief were relied to support his argument.

Instructively, this court, and the Supreme Court in particular, has times without number enjoined lower courts to refrain from given decisions on any issue in respect of which it has neither received argument from or on behalf of the litigants before it, nor raised by or for the parties or either of them. Courts are also enjoined to limit themselves to the issues raised by the parties, for doing otherwise will result in the denial to one or the other of the party’s right to fair hearing. See: Shitta-bay V. F.S.C. (1981) S.C. 40, Saude V. Abdullalti (1989) 4 NWLR (Pt.116) 387 Ogunlowo V. Ogundare (1993) 7 NWLR (Pt.307) 610, – at 624. I have gone through the record of this appeal, particularly from page 76 – 95 which contained, the motion on notice, the affidavit in support, the exhibits attached, the arguments of the respective counsel and the ruling of the learned trial judge dismissing the application. Throughout the proceedings, I have not seen where the issue of section 4 of the Act was raised by either party. Additionally, there was no counter affidavit challenging the application, and no any point of law rose during the oral argument challenging any paragraph of the affidavit from the respondent side. What the respondent says as per record shows in as follows:

“J.C. Okonkwo replies, and opposed the application. Says it is not in every application that a counter affidavit is necessary. Says, everything said in support of this application are matters within the knowledge of the applicant alone. Says there is no law permitting the application. Says, the application was not made in good faith. Says, defendants have actually participated in this case. Says, plaintiff will suffer if the case is started denovo. Refers to paras. 22 of the supporting affidavit. Urges the Court to dismiss the application.”

I have taken the trouble of reproducing the above just to show that nowhere the issue of the Official Secret Act of any law was raised. The issue of section 4 cited and relied on by the learned trial judge was clearly raised suo – motu by the learned trial judge without giving the two parties chance of being heard. It is an elementary and fundamental principle of the determination of dispute between parties that courts of law must limit themselves to the issues raised by the parties in their pleadings as to do otherwise might well result in the denial to one or the other of the parties of his right to fair hearing. To have suo – motu raised and decided the issue (of section 4 of the Act) as the trial court has done in the instant case is to my mind, an infringement of the parties’, particularly the appellant’s right to fair hearing whose application was dismissed. See Krause Thompson Org. Ltd. V. Unical (2004) 9 NWLR (Pt.879) 631 tit 651-652 per Musdapha, J.S.C.

There is no doubt that the trial court committed a serious error in law in its decision when it in appropriately raised and considered an issue suo – motu in the application before it. The question is: what is the effect of error in law committed by the trial judge? Unless the error in law/misdirection is so grave as to have occasioned substantial miscarriage of justice an appeal court will not ordinarily interfere with the decision of the lower court. See Isaac Ayoola V. Adebayo & Ors (1969) 1 All NLR 159 at 164 per Coker J.S.C.

Under the provisions of order 17 rule 11 (2) of the Court of Appeal Rules, 2007, this court has the power to give any judgment or make any order that ought to have been done as the case may require and this power is exercisable by this court. I am of the opinion that the error in law involved in this case has been shown to have given rise a miscarriage of justice so as to call for the allowing of this appeal and setting aside the decision of the trial court under this issue, and is allowed.

ISSUE NO.3:

The final issue for determination in this is whether there are sufficient materials for the trial judge to disqualify himself, if paragraphs 11 and 12 of the affidavit in support of motion are caught by section 4 of the Official Secret Act.

In this appellant’s brief of argument, learned senior Advocate for the appellant submitted that the said paragraphs 11 and 12 of the affidavit in support of the motion are not caught by section 4 of the Act, and that the other paragraphs, even if the said paragraphs 11 and 12 are excluded, are sufficient to ground the allegation of bias against the trial judge. The fact is that the remaining paragraphs, paragraphs 11 and 12 inclusive, were not controverted and the trial judge did not appraise them. He finally submitted that the remaining paragraphs in the affidavit, excluding paragraphs 11 and 12 are sufficient to support the application had the learned trial judge considered them on their merit. A number of legal authorities were cited in their brief in support their contention.

Learned counsel for the respondent submitted that even if all averments in support of the application were taken as admitted by the respondent, the appellant’s application would still fail, as it did not disclose any reasonable cause of action.

In considering this issue it is necessary to look at the facts deposed to in the affidavit. The relevant averments are as follows:

1. The I am the Legal Officer in the employ of the defendant/applicant and I am conversant with the facts of this case.
2. That on further reflection on the entire suit and on further Consultation with the senior counsel in this matter, the defendant now wishes the Honourable presiding Judge to disqualify himself from the continued hearing of this case.
3. That in 1998, the then Military Administrator of Enugu State as ‘VISITOR set up a Visitation Panel on the defendant.
4. That by letter dated 25th February 1998, the University congregation challenged the appointment of the presiding judge as the Chairman of the Visitation Panel, part of that letter read thus:

“… Furthermore, Hon. Justice Umezulike on relocating to ESUT from Nnamdi Azikiwe University was made HEAD OF DEPARTMENT OF PUBLIC LAW during 1992 – 93 sessions. His tenure as Head of Department falls within the period under review, 1992-98. When the Panel considers this particular department, will the learned judge be asking and answering himself?

8. That during the period of his employment by the defendant learned trial judge taught both undergraduate and post graduate courses. Pages I – IV of the defendant’s Faculty of Law Academic Programme (Brochure) are herewith attached and marked EXHIBIT B.
9. That by a letter dated 10th September 1997 and addressed to the Head of Department of Geography and Meteorology, the presiding judge complained bitterly against the defendant’s management, apparently for not appointing him to a position commensurate to his claimed qualifications and creative output. The said letter is herewith attached and marked EXHIBIT C.
10. That consequently the presiding judge withdrew his services to the defendant.
11. That the Visitation Panel which was chairmaned by the leading judge in its Final Report Vol. 17th April 1998 paragraph 123, wrote of the defendant as follows:

“In our view the total effect of the above lapses in ESUT has been the considerable immobilization of the entire system. No. meaningful institutional strategies have been mapped out or are in place for research efforts in the sciences, engineering and technology. There is no master plan to assist the state government in its agrarian and construction needs. Besides the ESUT Business School and other external services of ESUT, we have found in ESUT proper, a system that simply is unable to rouse itself.

12. That part of the external services rendered by the defendant who was commented on in the report is ESUT CONSULT whose business is the subject matter of plaintiffs’ action.
13. That the present action was instituted after the above quoted report.
14. That the said reports at page 92 had recommended to the defendant to de- brief and remove one of the senior counsels – A.O. Mogboh – appearing for the defendant in its cases as their solicitor. The recommendation is as follows:

“Dr. A. O. Mogboh, should be de-briefed or removed immediately as the University solicitor. People placed on a position of trust must never betray the trust imposed on them…”

15. That obviously the presiding judge who was chairman of the Visitation Panel has been interest in the implementation of that recommendation by the defendant.
16. That the defendant however in its own wisdom has continued to retain the said senior counsel as its counsel against the said recommendation of the Panel chairmaned by the presiding judge.
17. That despite the fact that the said senior counsel has constantly reminded the defendant of this strong recommendation coming from the presiding judge as Chairman of the Visitation Panel, both the Council and Senate of the defendant have resolved to retain the services of the said senior counsel as this is their constitutional right.
18. That it has become increasingly embarrassing to the defendant and the said senior counsel, that each time the case comes to court, the presiding judge continues to hear the same despite his expressed recommendation.
19. The our leading senior counsel informs me and I verily believe him that it has become necessary to bring these facts again to the notice of the presiding judge and to urge him in these circumstances to disqualify himself from hearing the case.
20. That on Wednesday 26th October 1998, at the 10th meeting of the Executive Council of Enugu State, all the controversies surrounding the report of the said Visitation panel was considered, and in particular issues earlier on raised by the public and members of the University Congregation, and the recommendation of the Panel was rejected in its entirety.
21. That our leading senior counsel informs me and the defendant that the rejection of the Panel’s Report and its recommendations do not wipe out the impressions the presiding judge has about the defendant as an institution and their continued retention of the said senior counsel despite his recommendation for his de-briefing or removal.
22. That the plaintiffs/respondents will not be prejudiced if this application is granted, as it is in the interest of parties and the court, that the case be dispassionately determined on its merit without any likelihood of bias.
23. That I make this oath in good faith believing the contents to be correct to the best of my knowledge and information and in accordance with Oaths Law.

From the above deposition, the followings are discernable:

1. That the applicant/appellant is a University established by law.
2. That the trial judge was once a former lecturer in the appellant University.
3. That the State Governor as a visitor to the appellant University set up a visitation panel with terms of reference.
4. That the Senate and Council of the appellant University protested the appointment of the trial judge as chairman of the visitation panel and expected that the trial judge as a former staff of the appellant University should be replaced or that the trial as chairman of the visitation should disqualify himself.
5. The trial judge in his own letter as Exhibit ‘C’ attached, castigated the applicant/appellant University.
6. That exhibits ‘A’ &’C’ were brought to the notice of the trial judge in support of the application requiring the trial judge to disqualify himself.
7. That the trial judge had pre-conceived views on the matter.
8. That the trial judge had earlier in the report indicted the applicant/appellant University, its staff and its programmes.

It was in regards to the above circumstances that the appellant applied to the trial judge to disqualify himself and transfer the case to another judge in the division as he already had pre-conceived views on the matter.

It is important to note that the respondents filed no counter affidavit to challenge the affidavit. I am not unmindful that even if no counter affidavit filed against an affidavit the trial judge has the power to appraise the averments and decide them on their merit but the trial judge in the instant case did not do so.

Having stated above, I am of the view that the appellant’s application before the trial court has merit and ought to have been granted and is hereby granted, having it sufficient materials to sustain it.

This issue therefore is allowed in favour of the appellant.

In the result, I hold that this appeal is meritorious and is hereby allowed. I therefore set aside the ruling of the learned trial judge, A.J. Umezuluike J., delivered on 12/7/2004 in suit NO.E/31/2002.

In its place, I order that the said suit No. E/31/2002 before the trial judge is transferred by the Hon. Chief Judge of Enugu State to another judge within the same division.

I order no costs.

---

Other Citations: (2008)LCN/3079(CA)