Barrister Anthony Kayode Towoju & Ors V. The Governor of Kwara State & Ors (2005)

LawGlobal-Hub Lead Judgment Report

ABDULLAHI, J.C.A.

By originating summons filed by the plaintiffs who are appellants in this appeal, the following 5 questions were sought to be determined as follows:

1. Whether the Governor of Kwara State has power(s) under the 1999 Constitution; the Commission of inquiry Law of Kwara State and the 1999 Local Government Law of Kwara State to set up the Judicial Commission of Enquiry in respect of the Accounts and Finances of the Local Government Councils in Kwara State from 1999 to May, 2002.
2. Whether the Governor or any other person or authority in Kwara State has power(s) under the 1999 Constitution and the 1999 Local Government Law of Kwara State to commission external auditors to examine the finances and audit the accounts of the Local Government councils in Kwara State, from 1999 to May, 2002; with particular reference to sections 7 & 128 of the Constitution and Section 59 of the Local Government Law of Kwara State, 1999.
3. Whether the Kwara State Government can act on the purported report produced by the external auditors so commissioned by the Governor as the basis for setting up the Judicial Commission of Enquiry to probe the tenure of the plaintiffs in their various Local Government Councils of Kwara State from 1999 to May, 2002 and whether the report(s) of the external auditors is/are not liable to be set aside.
4. Whether the State Government has not already found the appellants guilty by reason of the address/terms of reference given to the Commission of Enquiry, which contained indictment and legal conclusions to the prejudice of the plaintiffs.
5. Whether the Kwara State Government and the external auditors have not breached the plaintiffs’ right to fair hearing enshrined in the 1999 Constitution of the Federal Republic of Nigeria by the manner in which, the said external auditors carried out the assignment without giving the plaintiffs the opportunity of being heard.

Based on the questions (supra), the plaintiffs claimed the following reliefs stated hereunder:

“1. Declaration that the setting up of the Judicial Commission of Enquiry by the Governor of Kwara State to probe and/or enquire into the finances of plaintiffs as chairmen in their respective Local Government Councils of Kwara State is ultra vires, null and void and of no effect whatsoever, having regards to the provisions of 1999 Constitution, Commission of Enquiry Law and 1999 Local Government Law of Kwara State.

2. Declaration that the commissioning of external auditors by the Governor of Kwara State to audit the accounts of Local Government Councils in Kwara State from 1999 to 2002 covering the tenure of office of the plaintiffs as chairmen in their respective Local Government Councils of Kwara State is ultra vires, null and void and of no effect whatsoever having regards to the provisions of 1999 Constitution and 1999 Local Government Law of Kwara State.
3. Declaration that the act of the external auditors in auditing the accounts of the Local Government Councils in Kwara State as it affects the tenure of office of the plaintiffs as Chairmen from 1999 to 2002 is ultra vires, null and void and of no effect whatsoever.
4. Declaration that the report of the external auditors as it affects the tenure of office of the plaintiffs as Chairmen from 1999 to 2002 cannot form the basis of a valid Judicial Commission of Enquiry against the plaintiffs and the said report is liable to be set aside.
5. Declaration that the external auditors and Kwara State Government breached the applicants’ fundamental right to fair hearing as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria by auditing and producing a report indicting the plaintiffs in respect of plaintiffs’ tenure, without giving them the opportunity of being heard at all.

The plaintiffs sought two other ancillary orders as follows:-

“1. An Order quashing the report of the external auditors indicting the plaintiffs and published in various Newspapers particularly Herald Newspaper of 9th March, 2004.

2. An Order restraining the Judicial Commission of Enquiry from exercising jurisdiction in any manner whatsoever in respect of any of the plaintiffs.”

The Originating Summons was supported by a 20 paragraph affidavit deposed to by the 1st plaintiff, Barrister Anthony Kayode Towoju sworn to on the 23rd day of March, 2004. Attached to this affidavit were exhibits A, B and C. A second affidavit in support of the originating summons dated and filed on 31st March, 2004 was deposed to by the 2nd plaintiff, one Comrade Abdullahi Lade, annexed to this affidavit was exhibit D, audit certificate issued by the Auditor General of Local Government in respect of Patagi Local Government where he was the Chairman.

The Respondents on the other hand filed a 21 paragraph counter affidavit to the one filed by the plaintiffs. This counter-affidavit was deposed to on the 26th day of March, 2004 by one Yusuf Kawu Daibu, a civil servant who was appointed the secretary of the commission in contention. Attached to this counter-affidavit were two exhibits, a certified true copy of the terms of reference of the commission and a copy of the Oath subscribed by each member of the said commission. Needless to say, both parties relied on the averments of the supporting affidavit as well as the counter-affidavit. Reference to relevant averments will be made in the course of writing this judgment as and when it is appropriate.

The facts leading to this appeal are as follows:

The first respondent, who is the Governor of Kwara State, pursuant to the powers conferred on him under and by virtue of section 2 of the Commissions of Enquiry Law of Kwara State, 1994, set up a Commission of Inquiry under the Chairmanship of the 4th respondent to, amongst others examine the existing regulations and procedures in the financial management of all the Local Government Areas of the State.

Dissatisfied with the action of the 1st respondent and having felt that, this is a constitutional matter in that it is the House of Assembly of the state that is vested with the power to conduct enquiries into the affairs of the Local Governments, the appellants, who were chairmen of the 16 Local Government Areas of the State between June, 1999 and May, 2002 approached the High Court of Kwara State via an originating summons dated 22nd March, 2004 and filed on 23rd March, 2004, where they formulated five questions for determination by the lower court. They also sought for five declaratory reliefs and two other ancillary orders.

The High Court presided over by Sade Ojo (J) in a well-considered ruling delivered on the 24th of May, 2004 dismissed the plaintiffs’ claim. The plaintiffs, now appellants in this court filed a notice of appeal consisting of five grounds on 1st of June, 2004. They are seeking for an order allowing the appeal, and setting aside the judgment of the trial Court and granting all their reliefs.

In accordance with the rules of this court, both parties filed and exchanged briefs of argument. The appellants in their brief dated and filed on the 6/10/04 formulated three issues for determination as follows:

“1. Whether the learned trial Judge is right, in holding that the Governor of Kwara State can perform the function specially assigned to the House of Assembly of Kwara State by the 1999 Constitution of the Federal Republic of Nigeria and Kwara State Local Government Law No. 6 of 1999 with regards to the investigation of the affairs of Local Government. Grounds 1 & 2.

2. Whether the learned trial Judge is right, in holding that the Commission of Inquiry Law of Kwara State empowered the Governor of Kwara State to set up Judicial Commission of Inquiry to investigate the affairs of Local Governments in Kwara State and that the said law being an existing law is consistent with provisions of the 1999 Constitution. Grounds 3 & 4.
3. Whether the learned trial Judge is right in declining to consider question 2 -5 of the plaintiffs’ originating summons on the ground of non-availability of the auditors’ report and refusing to recognize exhibit C as auditors’ report. Grounds 5 & 6.

The respondents, in their brief of argument deemed filed with the leave of the court on the 13th day of April, 2004 formulated two issues for determination to wit:

“(i) Considering the fact that appellants failed to place the external auditor’s report before the court and the fact that their entire case at the lower court revolved around the said auditor’s report, whether or not, the learned trial Judge was right in dismissing their case in its entirety. Grounds 4 and 6.

(ii) Having regards to the provisions of the 1999 Constitution, the Commission of Inquiry Law of Kwara State and the 1999 Local Government Law of Kwara State, whether the learned trial Judge was not right in holding that the 1st respondent has the powers to set up the Judicial Commission of Inquiry (3rd respondent) – Grounds 1, 2, 3 and 5.

Learned Counsel who settled the appellants brief, Mr. John Olusola Baiyeshea submitted on issue No.1, that the power to investigate the affairs of Local Governments is vested in the House of Assembly of a state by virtue of the provisions of sections 128 and 129 of the 1999 Constitution. That power is not vested in the Governor at all. Learned Counsel referred to Section 7(1) of the Constitution which provides that the Government of the State is to ensure the existence of the Local Governments under a law and further submitted that it is a result of the aforementioned provision that Kwara State Local Government Law No.6 was made. The said Law, learned Counsel went on, makes wide provisions for the establishment, finance, structure and general administration of the councils.

It is the submission of the learned Counsel that since the State House of Assembly has made Local Government Law No.6 of 1999, it is the same Legislature and not the Governor that the Constitution has given the power to investigate the affairs of Local Government Councils: The Governor’s act of setting up the 3rd respondent, headed by the 4th respondent to investigate the affairs of the said Local Government Councils is ultra vires the Governor’s power and void, learned Counsel further submitted. By setting up the said commission of Enquiry, the 1st respondent has usurped the powers of the legislature relying on the cases of, A-G., Abia State v. A-G. Fed., (2002) 3 SCNJ p. 158 at pp. 164 – 169; (2002) 6 NWLR (Pt. 763) 264 and Knight Frank (Nig.) Ltd. v. A-G., Kana State 3 SCNJ P.167at Pp. 179 – 180; (1998) 7 NWLR (Pt. 556) 1.

Learned Counsel submitted that the learned trial Judge fell into very grave error by holding that the Governor is not precluded from exercising executive powers to cover duties and matters reserved (rather exclusively) for the legislature by section 128 of the Constitution. Learned Counsel further submitted that it is wrong for the learned trial Judge to have held that where the legislature fails to exercise its functions then the Governor could move in and do it. The approach of the learned trial Judge is faulty because there was no evidence before the court that the House of Assembly neglected or refused to carry out its constitutional duty; even if that were to be the case, the Governor has no right to take over that constitutional duty; the proposition portends dangerous connotations as the same excuse may be used to usurp legislative functions and duties of the legislature.

It is the submission of the learned Counsel that section 5 of the 1999 Constitution does not empower the Governor to usurp the functions of the House of Assembly of a State. The power conferred on the Governor by section 5 of the 1999 Constitution is limited to the execution of laws made by the House of Assembly, but not to take over the functions reserved for the legislature under section 125 of the Constitution one of which is to investigate the affairs of the Local Government Councils. Section 5, the learned Counsel went on is subject to the provisions of the Constitution. And this means that the section is qualified and rendered dependent upon and subjected to other provisions of the Constitution. He called in aid the cases of Governor, Akwa Ibom State v. Umah (2002) FWLR (Pt. 110) 1793 at 1814; (2002) 7 NWLR (Pt. 767) 738 and Akpan v. Umah (2002) 1 FWLR (Pt. 110) 1820 at 1840; (2002) 7 NWLR (Pt.767) 701. At any rate, learned Counsel further submitted that the trial Judge cannot suo motu apply the said section without calling on the parties to address him on it relying on the case of N.P.A.S.F. v. Fasel Services Ltd. (2002) FWLR (Pt.97) P. 719 at P. 741; (2001) 11 NWLR (Pt. 723) 35.

Learned Counsel submitted that he has made copious references to the Local Government Law No.6 of Kwara State, 1999, but the trial Judge glossed over those submissions. It is the view of the learned Counsel that if the trial Judge had given consideration to the said submissions, the court’s conclusion in this case would have been different. The submissions the learned trial Judge did not consider and which we are now urged to consider are as follows:

“(1) Before that commission of inquiry was set up, the 1st respondent sent external auditors to the said Local Governments in flagrant violation of the Constitution and Local Government Law No.6 of Kwara State.

(2) And it is based on the report of the said external auditors that the Governor set up the 3rd respondent as exhibits A and B attached to the main affidavit in support of the originating summons have shown. The depositions in the plaintiffs’ said affidavits were not controverted by the respondents.

Learned Counsel submitted that the Governor’s act of sending external auditors to the Local Governments is ultra vires having regards to the Local Government Law and the Constitution. This is because by section 59 of the Local Government Law No.6 of 1999, only the Auditor General for the Local Governments is empowered to audit the accounts of Local Governments and submit report to the House of Assembly and that he is not under the control of the 1st respondent relying on sections 59(4) and 60 of the same Local Government Law No.6 as well section 125(2) and (6) of the Constitution of the Federal Republic of Nigeria, 1999.

Learned Counsel finally submitted on this issue that section 59 of Local Government Law No.6 of Kwara State is in pari material with the provisions of section 125 of the 1999 Constitution. By virtue of section 125(2) of the Constitution the Auditor-General of the State must send his report on the auditing of public accounts of the states to the House of Assembly and not even to the Governor. The Auditor General of the State does not also work with external auditors. He urged us to answer issue No.1 in the negative.

On issue No.2, learned Counsel relied and adopted his argument in respect of issue No.1, but he however submitted that the learned trial Judge was in error by holding that the Commission of Inquiry Law, Cap. 38, Laws of Kwara State is an existing Law by virtue of section 315 of the 1999 Constitution. This is so because the application of Commission of inquiry Law of Kwara State is subject to the provisions of the Constitution, learned Counsel further posited. Learned Counsel further submitted that the Law (Commission of Inquiry Law of Kwara State) recognizes the supremacy of the Constitution and makes itself subject to Section 128 of the Constitution of 1999. It therefore means that as long as the House of Assembly of Kwara State is vested with the Constitutional powers, duties and functions stated in section 128 of the 1999 Constitution, which includes inter alia investigating the Local Governments, then the Governor cannot set up a Commission of Inquiry in respect of the same subject matter.

It is the submission of the learned Counsel for the appellants that the holding of the learned trial Judge to the effect that the said Commission of Inquiry Law, Cap. 38, of Kwara State is an existing Law and that the Law is not inconsistent with Constitution is wrong and cannot be sustained. This is so according to the learned Counsel because section 21 of that Law is against the letters and spirit of the Constitution. The said section is out rightly inconsistent with sections 128 and 129 of the 1999 Constitution and/or can be said to be inconsistent with the Constitution to the extent of covering the same field which the Constitution has already covered. Sections 2 and 21 of the Law are inconsistent to the extent that it will enable the Governor to exercise the functions, duties and powers conferred on the House of Assembly of the State by the said Constitution relying on the case of Edjerode v. Ikine (2001) 12 SCNJ, 184 at Pp. 202; (2001) 18 NWLR (Pt. 745) 446.

On issue No.3, learned Counsel adopted his argument on issue No 1, especially from paragraphs 4.00 to 4.06 dealing with the appointment of external auditor for the Local Government by the 1st respondent. Learned Counsel further submitted that the learned trial Judge declined to consider questions 2, 3, 4 and 5 of the plaintiffs originating summons. Those questions, especially 2 and 3 are questions of Law and the learned trial Judge ought to have determined them one way or the other having regard to the submission of the learned Counsel on them.

Learned Counsel submitted further that by the combined effect of section 59 of the Local Government Law of Kwara State and section 125 of the 1999 Constitution no provision is made for the Governor to send external auditors to audit either the account of any Local Government or the public account of the State. This position is reinforced by section 59(2) of the said Law which provides for the submission of the audited report by the Auditor-General for Local Governments to the State House of Assembly, but not the 1st respondent, while section 125(2) of the Constitution provides for submission of the report of the audit of accounts of the State to the House of Assembly and not even the Governor. He cited the case of A.-G., Abia v. A.-G. Fed. (2002) 3 SCNJ P. 158 at P. 236 (paras. 30 – 35); (2002) 60 NWLR (Pt. 763) 264 to buttress his submission on this point.

Learned Counsel referred us to paragraphs 8, 9 and 10 of the main affidavit in support of the originating summons and paragraphs 2, 3 and 4 of the 2nd affidavit, where the deponents deposed that the Auditor-General for Local Governments, audited the accounts of all the Local Government between 1999 and April, 2002 and sent same to the House of Assembly.

These averments were not controverted at all by the respondents in their counter-affidavits. It is trite, learned Counsel went on that courts rely on such uncontroverted facts. Learned Counsel submitted that the court should have granted reliefs 2 and 3 of the said summons. Learned Counsel urged us to grant the reliefs under section 16 of the Court of Appeal Act relying on the case of Bedding Holdings Ltd. v. NEC (1992) 8 NWLR (Pt. 260) P. 428 at 436.

Learned Counsel, opined, that the learned trial Judge was wrong to have rejected exhibit C, the said exhibit ‘C’ is a certified true copy of Kwara State Governments Newspaper “The Herald” in which the said report was published. This learned Counsel contended is specially alluded to in paragraph 19 of the affidavit in support of the originating summons and not controverted by the respondents. Learned Counsel submitted that the said exhibit is reliable enough for the trial Court to be able to determine questions 2, 3, 4 and 5 of the originating summons and grant all the reliefs of the appellants.

Learned Counsel contended that the exercise of the external auditors breached the plaintiffs/appellants right to fair hearing as enshrined in section 36 of the 1999 Constitution. The trial Judge should not have overlooked this obvious anomaly and should not have rejected exhibit C. Learned counsel urged us to use section 16 of the Court of Appeal Act to determine questions 2, 3, 4 and 5 of the originating summons and grant all the reliefs of the plaintiffs/ appellants.

For his part, learned Counsel for the respondents referred to paragraphs 7, 9, 11, 12 and 14 of the supporting affidavit and contended that from the averments in those paragraphs, the grouse of the appellants is tied around a purported auditor’s report which they wanted the lower Court to quash and or declare as baseless, worthless and an infringement of their constitutional right as can be seen in reliefs 2, 3, 4, 5 and 6 of the originating summons. Surprisingly however, the appellants never placed before the lower ourt the purported auditor’s report. Failure to place same before the said court is fatal to the appellants’ case relying on the case of Lekwot v. Judicial Tribunal on Civil and Communal Disturbances in Kaduna State (1997) 8 NWLR (Pt. 515) P. 22 at Pp. 34, 35 and 36. Learned Counsel further submitted that it is the duty of an applicant to place before the court all relevant evidence, oral or documentary in support of his application. He called in aid of this submission the case of In Re Adetona (1994) 3 NWLR (Pt. 333) P.481. It is also the submission of the learned counsel on this point that, the none production of the report before the trial Judge had divested him of jurisdiction to make any of the orders or declaration sought in the originating summons.

Learned Counsel for the appellants contended that the respondents’ Counsel strenuously argued that the trial Court declined to consider questions 2, 3, 4 and 5 of the plaintiffs/appellants. Questions 2, 3, 4 and 5 of the originating summons, wrongfully discountenanced exhibit C (Newspaper publication). Learned Counsel for the respondents submitted that the submission of the appellants counsel is not borne out of the Judgment of the lower court on these points. Learned Counsel submitted that adequate considerations were given to this issue and the questions as set out in the originating summons. Learned Counsel referred us to page 128 – 129 where the trial Judge in an elaborate manner dealt with the issue and the questions. In any event, learned Counsel further submitted that exhibit C, being a Newspaper publication does not and cannot constitute a substitute for or stand instead of documents be it private or public documents relying on the case of Lekwot v. Judicial Tribunal (supra) P. 35.

Learned Counsel for the appellants submitted that assuming but not conceding that exhibit C is the report of the external auditors for the Local Government Councils, same qualified as a public document within the contemplation of section 109 of the Evidence Act and of which only certified true copy is admissible relying on sections 97(2), 111, 112 and 113 of the Evidence Act. (italics supplied for emphasis). Learned Counsel finally urged us to hold on this issue that this is a clear case for the invocation and application of Section 149(d) of the Evidence Act that the said external auditor’s report was deliberately not produced by the appellants because same would have been unfavourable to or against them relying on the cases of Ephrain v. Okon (1996) 2 NWLR (Pt. 432) p. 595 at P. 601 and Orient Bank (Nig) Plc. v. Bilanta Int. Ltd. (1997) 8 NWLR (Pt. 515) P. 3 7 at Pp. 81 – 82.

On issue No.2, that is whether the 1st respondent has the powers to set up the 3rd respondent, learned Counsel submitted that a quick look at sections 5, 21, 125, 126, 127 and 128 of the Constitution of the Federal Republic of Nigeria, 1999, will reveal the fact that it is beyond question that the 1st respondent can set up the 3rd respondent in the manner he did and for the purpose for which it was set up.

The submission of the appellants’ Counsel that the provisions of the commission of Inquiry Law, under which the 1st respondent set up the 3rd respondent are inconsistent with sections 125, 126 and 127 of the Constitution is not only misleading, but confusing and is fundamentally flawed in that careful perusal of the sections in question would show that they are unconnected and indeed have no bearing or nexus with whether or not the 1st respondent has powers to do what he did.

It is the submission of the learned Counsel that the operative words in section 128(1) of the Constitution in relation to the issue in contention are “direct” and “cause to be directed”. The words, learned Counsel further submitted are clear and unequivocal in their intent and purpose to the effect that a state House of Assembly is not clothed with the exclusive right to conduct an inquiry or investigation in relation to matters adumbrated in section 128(1) of the 1999 Constitution. Learned Counsel further submitted that by enacting the Commission of Enquiry Law of Kwara State, the State House of Assembly has Constitutionally given the power to the 1st respondent to act as he did. We are urged to give ordinary plain, grammatical and natural meaning to the words used in the said section since same is clear and unambiguous relying on the case of Garba v. Federal Civil Service Commission (1988) 1 NWLR (Pt. 71) P. 449.

Learned Counsel argued that Section 129(1) of the Constitution that may be interpreted as having given power to a State House of Assembly to conduct an inquiry or investigation is subject to section 128 of the Constitution. The phrase “subject” has been interpreted by the Supreme Court in Plethora of decided cases to introduce a condition, a proviso, a restriction or a limitation relying on the case of Alh. Tukur v. Government of Gongola State (1989) 4 NWLR (Pt.117) P. 517.

Learned Counsel contended that by the combined effect of sections 5 and 128 of the Constitution of the Federal Republic of Nigeria, there is nothing unconstitutional in the provisions of the Commission of Inquiry Law as canvassed by the learned counsel for the respondent.

On the submission of the learned Counsel for the appellants that the trial Judge suo motu applied section 5 of the Constitution without calling the parties to address the court on it; learned Counsel for the respondents submitted that the Court is only under obligation to invite counsel to parties to address it when and only when it raises a new issue in the suit and not when it applies principles of law not cited by a counsel, whether statutory or judicial. A court, by law is not obliged to make use of the authorities cited by counsel, while addressing it relying on the case of Fennih v. Imade (1992) 1 NWLR (Pt. 219) P. 511 at P. 537. He urged us to resolve this issue in favour of the respondents. He also urged us to dismiss the appeal and affirm the judgment of the lower Court.

The above is the summary of the submissions made to this Court in this matter. I shall now proceed to deal with the issues as formulated. A cursory look at the issues formulated by the parties reveals that they essentially harmonize and dovetail into one another, but for ease of discourse, I propose to adopt the issues formulated by the respondents. Put differently, I am of the strong view that this appeal can be disposed of by giving consideration to the two issues formulated by the respondents.

It seems to me that the first question to be asked is what were the complaints of the appellants in the lower court? Can it be said from the affidavit evidence adduced by them, that they had established their claim and therefore entitled to judgment?

To answer the first question recourse had to be made to the relevant averments deposed to by both the 1st and 2nd appellants the deponents of the two affidavits in support of the originating summons. The 1st appellant, in support of the originating summons deposed as follows:

“7. That from the address read by the Governor of Kwara State at the inauguration of the said Judicial Commission of Inquiry and published in the Herald Newspaper as afore stated, it is clear that the Governor of Kwara State based the setting up of the said Commission on the report of external auditors commissioned by the Government of Kwara State to audit the finances of the said Local Government from 1999 to 2002 as it affects our tenure.

9. That in the Local Government set up, it is strange for external auditors to be engaged to audit the accounts of Local Government.
10. That the consortium of external auditors engaged by the Government carried out their auditing and returned damning report and condemned the plaintiff (sic) without calling the plaintiffs for any hearing or explanation.
11. That in the case of Oke-Ero for instance, where I was Chairman, the external auditors took a false report that the sum of N6.5 Million was paid for the construction of Chairman’s quarters and that the job was not done at all.
12. That the external auditor’s report, which forms the basis of the Governor’s action in setting up the Judicial Commission of Enquiry, has already pronounced all of us guilty.

It is crystal clear from the averments reproduced above that the main complaint of the appellants is anchored on a purported auditor’s report which they wanted the lower court to quash on the ground that the purported external auditor’s report that was compiled some months after they left office as Council Chairmen at the instance of the 1st respondent is worthless and a flagrant infringement of their constitutional right, i.e., the right to fair hearing: This much can be discerned from reliefs 2, 3, 4, 5 and 6 of the originating summons.

Learned Counsel for the appellants submitted that it is based on the report of the said external auditors that the Governor set up the 3rd respondent as exhibits A and B attached to the main affidavit have shown. Learned Counsel further submitted that the said depositions have not been controverted by the respondents. The question that readily come to mind is this, can it be said that the appellants have not controverted the depositions weighty as they seem to be? In the counter affidavit filed by the respondents, the deponent, one Yusuf Kaibu Daibu deposed in paragraph 20 of the said counter-affidavit thus:

“20. I also know as a fact and from what the 1st defendant told me which I readily believe that the setting up of the Commission of Enquiry was not informed by any external auditor’s report, but to purely properly regulate the conduct of affairs in the Public Service.”

I am of the strong view that in the light of the deposition in the above quoted paragraph, the submission of the learned Counsel for the appellants that the respondents have not controverted their depositions pertaining this issue is not and cannot be true. The respondents as stated (supra) have positively controverted the depositions and I so hold.

The next point for our consideration is whether the much talked about external auditors reports that the court was asked to quash had been presented to it for its appropriate action. This is so because, it is now settled with a note of finality that guess work has no place in the adjudicating process, hence, where and whenever a party seeks or set in motion, the machinery of justice to quash, nullify or set aside any proceedings or decisions (report inclusive) such a person is under a legal duty to produce or exhibit the report or proceedings before the court. See the case of Lekwot v. Judicial Tribunal on Civil and Communal Disturbances in Kaduna State (supra).

The appellants, in their supporting affidavit deposed in paragraph 17 thus:

“17. That the summary of the report of the consortium of external auditors engaged by Kwara State Government to audit the account of Local Governments is published at page 7 of Nigeria Herald of 10th March, 2004. Copy of relevant page is attached herewith as exhibit C.”

The question to be asked at this stage is this, can exhibit C, attached to the supporting affidavit be regarded as valid external auditors’ report that the lower court was asked to quash and declare the setting up of the 3rd respondent based on its unconstitutionality? I pause here to say that, before I venture to answer this question, it needs to be said that it is the duty of an applicant to place before the Court all relevant evidence, oral or documentary in support of his application. See the cases of In-Re Adetona (1994) 3 NWLR (Pt. 333) P. 481, Anaekwe v. Mashasha (2001) 12 NWLR (Pt. 726) 70 at P. 90 and Adefulu v. Okulaja (1996) 9 NWLR (Pt. 475) at P. 668.

In the case of Lekwot v. Judicial Tribunal on Civil and Communal Disturbance (supra), the apex court Per Belgore, JSC at page 35 held thus:

“… This application is so flawed abinitio that I find it completely unjust to call this court to adjudicate on it. The judgment of the tribunal complained against allegedly delivered on 2nd February, 1992 and the proceedings of the tribunal of 4th December, 1992 are unfortunately mere guess-work as they are not exhibited with this application before us … No court in this country can set aside, nullify or quash any proceedings or decisions not before it. Courts rely on concrete facts before them and not on guess-work and to ask any court to make a decision on guess-work and matters not exhibited before it is unjust and can, depending on circumstance of the case, amount to abuse of court process…”

Now, having stated the law and all that, I now come back to the question posed a while ago, i.e., whether or not exhibit C, a newspaper report can be regarded as valid upon which the court should act and quash the setting up of the 3rd respondent. In the case Lekwot v. Judicial Tribunal (supra) at P. 35, again His lordship, Belgore, JSC stated thus:

“… Are we to rely on newspapers reports which are no more than news items, with variations in different media on the same facts as alternatives to exhibiting the certified true copies of the decisions and proceedings? No court in this country can set aside, nullify or quash any proceedings or decisions not before it…”

I am of the strong view, in line with decision of the apex court (supra) that the newspaper publication did not satisfy the requirement of law to ground its admission or its being countenanced by the lower court.

Learned Counsel rightly submitted in my view that the said auditor’s report which according to appellants, have been submitted to the Government of Kwara State headed by the 1st respondent have become public documents within the contemplation of section 109 of the Evidence Act and which only certified true copy is admissible. See sections 97(2), 111, 112 and 113 and the cases of The Hon. Don Egbue v. Hon. Justice E. O., Araka (1996) 2 NWLR (Pt. 433) 688: Hon. Justice Araka v. Justice Don Egbue (2003) 17 NWLR (Pt.848) P. 1 and George Onobruchere & 1 other v. Ivwromoebo Esegine (1986) 1 NWLR, (Pt. 19) 799.

In the light of all that I adumbrated above, the holding of the learned trial Judge at page 128, lines 31 – 37 of the record of proceeding to the effect that:

“… the pertinent question now is whether exhibit C qualifies as the external auditor’s report which the court can rely upon. The undisputed fact is that exhibit C is a newspaper publication. Mr. Baiyeshea has submitted that the report in exhibit C is complete. Has this been established? My answer is “No”. It is trite that counsel’s address no matter how beautiful, would not take the place of evidence…”

cannot be faulted in anyway.

I am also of the opinion in the light of the circumstances of this case as set out in this judgment, that this is a clear case for the invocation and application of section 149(d) of the Evidence Act that the said external auditor’s report was deliberately not produced by the appellant because same would have been unfavourable to or against them. See the cases of., Ephrain v. Okon (1996) 2 NWLR (Pt. 432) P. 595 at P. 601; Orient Bank (Nig.) Plc. v. Bilanta International Ltd. (1997) 8 NWLR (Pt. 515) 37 at 81- 82.

In sum, I answer the question raised on issue No. 1 in the affirmative and hold without any hesitation that the learned trial Judge was right in dismissing the appellants’ case in its entirety.

I now proceed to examine issue No.2 as formulated by the learned counsel for the respondents i.e. whether in the light of the provisions of the 1999 Constitution and the Commission of Inquiry Law of Kwara State, the 1st respondents has the powers to set up the 3rd respondent.

In a presidential system of government which we are currently operating, there are three arms of government the Executive; the Legislature and Judiciary. Needless to say, the functions of each are clearly defined and set out in our Constitution which is the ground-norm. Any action taken or to be taken by each arm must be within the provisions of the said Constitution, or else it will be declared ultra vires the powers given to that arm of Government. In the light of the foregoing, whether the 1st respondent has the powers to set up the 3rd respondent needless to say is a Constitutional issue.

This brings me to the examination of section 5(2) of the Constitution which provides thus:

“5(2) Subject to the provision of this Constitution, the executive power of a state-

(a) Shall be vested in the Governor of that state and may, subject as aforesaid and to the provisions of any law made by a House of Assembly, be exercised by him either directly or through the Deputy Governor and Commissioners of the Government of that State or Officers in the public Service of the State; and

(b) Shall extend to the execution and maintenance of this Constitution, all laws made by the House of Assembly of the State and to all matters with respect to which the House of Assembly has for the time being power to make laws” (underlining supplied for emphasis).

It is pertinent to pause here and state that, the provisions of the Constitution reproduced above is clear and unambiguous that a Governor of a State has the executive powers to run the affairs of his state. Such powers include, but not limited to the execution and maintenance of the Constitution, all Laws made by the House of Assembly and to all matters with respect to which the House of Assembly has for the time being power to make Laws. (underlining supplied by me for clarity).

Learned Counsel for the appellants argued that the provisions of the Commission of Inquiry Law under which the 1st respondent set up the 3rd respondent are inconsistent with sections 125, 126, 128 and even 129 of Constitution. The question to be asked on the onset is this, is the Commission of Inquiry Law under which the Governor set up the said Commission inconsistent with the provisions of the sections of the Constitution reproduced above? Learned Counsel for the appellants argued that section 128 of the Constitution, its supremacy, is recognized by the Commission Law of Inquiry of Kwara State, and that being the case the 1st respondent cannot set up the 3rd respondent since that power has been Constitutionally vested in the state House of Assembly.

“S.128(1) provides:

“Subject to the provisions of this Constitution, a House of Assembly shall have power by resolution published in its journal or in the official Gazette of the Government of the State to direct or cause to be directed an inquiry or investigation into-

(a) any matter or thing with respect to which it has power to make laws; and

(b) the conduct of affairs of any person, authority ministry or government department charged, or intended to be charged, with the duty of or responsibility for –

(i) executing or administering laws enacted by that House of Assembly, and disbursing or administering moneys appropriated or to be appropriated by such House.

2. The powers conferred on a House of Assembly under the provisions of this section are exercisable only for the purpose of enabling the House to –

(a) make laws with respect to any matter within its legislative competence and correct any defects in existing laws; and

(b) expose corruption, inefficiency or waste in the execution or administration of laws within its legislative competence and in the disbursement or administration of funds appropriated by it.”

It is my considered opinion that the provisions of the said section are very clear and unambiguous to the effect that the House of Assembly is not clothed with the exclusive right to conduct an inquiry or investigation in relation to matters set out in the said section. This is because the operative words in the said section are “direct” or “cause to be directed”. The word and the phrase are clear and unequivocal in their intent and purpose. I am of the strong view that what is expected of the Legislative arm, either at the State or Federal level is to enact a statute conferring such powers on other arms of Government to execute what are contained in the statute. I hasten to add that it was pursuant to the exercise of such powers that the Commission of Inquiry Law, Cap. 38, Laws of Kwara State was enacted and deemed to be an existing Law under section 315 of the Constitution of the Federal Republic of Nigeria.

It has been held in a plethora of decided cases that where the words used in the Constitution are not ambiguous the natural, grammatical and ordinary meaning shall be ascribed to them. See the cases of Garba v. Federal Civil Service Commission (1988) 1 NWLR (Pt. 71) P. 449; Nafiu Rabiu v. The State (1980) 8 – 11 SC P. 130 and A.-G., Bendel v. A.G., Fed. & Ors. (1981) 10 SC P. 1.; (1982) 3 NCLR 1.

I now proceed to consider section 21 of the Commission of Inquiry Law which is said to be in conflict with the provisions of the Constitution currently in force. The section provides thus:

“The powers conferred by this law upon the Governor may be exercised by him in respect of any matter within the competence of the state.”

I am of the considered view that ascribing natural, grammatical and ordinary meaning to the words used in section 21 of the Commission of Inquiry Law of Kwara State, one will only arrive at one conclusion, which is to the effect that the provisions of the said law are not in conflict either directly or indirectly with the provisions of the Constitution as canvassed by the learned Counsel for the appellants and I so hold.

Learned Counsel for the appellants submitted that the learned trial Judge suo motu applied section 5 of the Constitution to this case without calling the parties to address the court on it. He called in aid of his submission the case of N.P.A.S.F v. Fasel Service Ltd. (supra) where it was held thus:

“The rule of audi alteram partem posits that at least, Counsel in the matter should be allowed to address the court on the point raised by the court suo motu before the decision is taken on it. It is a strange attitude for a Judge to raise a point suo motu and decide on it without calling on the parties, such a decision cannot stand.”

However with due respect to the learned Counsel there is a world of difference between a Judge raising an issue and raising a new issue suo motu. A trial Court is only under obligation to invite counsel to parties to address it when and only when it raises a new issue in the matter but not when it applies principles of law not cited by Counsel, whether statutory or judicial in the course of writing its judgment as it is in this appeal under consideration. In the case of Finnih v. Imade (1992) 1 NWLR (Pt. 219) P. 511 at 537, the apex court held thus:

“The principle that judgment of the Court must be confined to the issues of facts raised by the parties does not extend to the application of the law relevant to the determination of the issue before the court. Hence, once the issues on which judgment is based are findings of facts arising from the pleadings and evidence before the court, the fact that the court has in the determination of the issues, applied principles of law not cited by learned Counsel will not affect the decision. This has always been the accepted law.”

In the final analysis, in the light of all that I have adumbrated above, this appeal must be and it is hereby dismissed as lacking in merit. The judgment of the lower Court is hereby upheld and I award N10,000.00 costs in favour of the respondent against the appellants.

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Other Citations: (2005)LCN/1768(CA)