Prof. N.W. Gomwalk & Ors V. Prof. Vincent Nnamdi Okwosa (1998)
LawGlobal-Hub Lead Judgment Report
PROFESSOR VINCENT NNAMDI OKWOSA OGUNTADE, J.C.A
Delivering the Leading Judgment): At the Jos High Court of Plateau state, the present appellants as applicants brought an application wherein they prayed for “An order setting aside the writ of attachment issued by the court pursuant to its judgment of 5th July, 1996.”
The appellants stated that the ground upon which the application was based was
“The fiat of the Attorney-General of the Federation has not been first had and obtained before the issuance of the writ of attachment on or about the 12th day of July 1996.”
In the affidavit in support of the application, a litigation clerk in the chambers of Miskom Puepet and Co. deposed thus:
“(1) I am informed by Paschal N. Mammo Esq. of counsel and I verily believe him that
(a) Judgment was given in favour of the respondent on the 5th of July, 1996 and on the instructions of the applicants, filed an appeal against the judgment on the 15th day of July, 1996.
(b) While processing the appeal papers at the registry of this Court, he discovered that the honourable court had issued by signing, an application of the respondent, a writ of attachment against the applicants.
(c) He immediately contacted the 1st and 15th applicants to confirm if the Attorney-General of the Federation has granted a fiat to the respondent to levy execution on the properties of the University and the other applicants.
(d) The 1st and 15th applicants informed him that they are unaware of any fiat.
(e) He further telephoned the Attorney-General’s office where he has a classmate to check if their office had granted any fiat to levy execution against the University of Jos and its named staff to which he found none as between the 5th up to 23rd, July, 1996.
(f) The applicants were sued as members of the APPOINTMENTS COMMITTEE SENIOR STAFF OF the University of Jos.’
(g) The Committee is an administrative organ of the 20th applicant and the 20th applicant is a creation of the Federal Government vide Decree No. 82 of 1969 funded and controlled wholly by the Federal Government with the Head of State of Nigeria as a visitor, its controlling Ministry being the Federal Ministry of Education.
(h) The judgment on damages was neither expressed to be several and/or jointly by the court.
(2) That it will be in the interest of justice to grant this application.
(3) …?
On 9th October, 1996, the lower court (Coram Ahinche J) delivered its ruling on the application. It refused the application to aside the writ of attachment.
The appellants were dissatisfied with the ruling of the lower Court. They have brought this appeal on two grounds which read:
“(a) The lower court erred in law when it held:
‘In the particular case in hand, there is no specific mention of the University being covered by the Decree.
And even if the University is covered, the position of the other parties sued jointly and severally is doubtful if they are also covered by the Decree and thus occasioned a grave miscarriage of justice.’
PARTICULARS OF ERROR
(i) Section 251 (4) of the Constitution as amended by Decree No. 107 of 1993 requires a fiat before enforcement of judgment against any agency of the Federal Government.
(ii) The University of Jos and its committees and covered by the Decree.
(b) The lower court erred in law in granting a relief neither party sought forward (sic) this occasioned a grave miscarriage of justice.
PARTICULARS OF ERROR
(i) The court ordered the judgment debt to be deposited in court on or before the 3rd of October, 1996.
(ii) None of the parties sought for this order in the application under consideration.”
In the appellants’ brief filed before this court in accordance with the applicable rules, the issues for determination in the appeal were identified as the following:
“(a) Whether the appellants are covered by the provisions of Decree No. 107 of 1993.
(b) Whether the order to pay N2, 00,000.00 was competently made
The respondent formulated his issues differently, thus:
“(1) Whether the appeal is proper.
(2) Whether Decree 107 prohibits the enforcement of a judgment or the issuance of a writ of fifa.
(3) Whether the University of Jos is covered by Decree 107 us being pursued by the appellants.”
I must observe here that the first matter raised by the respondent is not really an issue in this appeal. Issues for determination in an appeal are formulated from the grounds of appeal filed. I have reproduced in full the two grounds of appeal raised by the appellants; and in none of the two grounds did the appellants raise any matter concerning the propriety of their appeal. It is therefore inappropriate for the respondent to raise the propriety of the appeal as an issue for determination in the appeal. I am not unaware that the respondent had in his brief raised a preliminary objection challenging the competence of the appeal. But it is my humble view that a matter to be decided in an appeal, following a preliminary objection raised in a party’s brief, does not qualify for that reason alone, to be described as an issue for determination in the appeal.
I shall now consider the preliminary objection raised by the respondent. The respondent has contended, placing reliance on section 15(1)of the Court of Appeal Act, that the appeal filed by the appellants is incompetent, for the reason that neither the leave of the lower court nor this court was obtained before this appeal was brought. It was further argued that since the order made by the lower court was interlocutory and not final, leave ought to have been obtained before the appeal could be brought. Respondent’s counsel relied on the following cases.
(a) Madukolu v. Nkemdilim (1962) 1 All N.L.R. 587; (1962) 2 SCNLR 341.
C (b) Afuwape v. Shodipe (1957) S.C.N.L.R. 265 or (1957) 2 F.S.C. 62.
(c) Akinsanya v. UBA Ltd. (1986) 4 N.W.L.R. (Pt. 33) 273 at 293.
(d) Total Int. Ltd. v. Awogboro (1994) 4 NWLR (Pt. 337) 147; (1994) 4 S.C.N.J. 138 at 150-151; and finally;
(e) Amuda v. Adelodun (1994) 8 NWLR (Pt. 360) 23; (1994) 9 S.C.N.J. 59 at 61.
The Appellants in their reply brief have argued that the order appealed against is final and not interlocutory. They relied on:
(i) Afolabi v. Igunbor (1992) 8 N.W.L.R. (Pt. 257) 115.
(ii) Bozson v. Altricham Urban District Council (1903) 1 KB 547
(iii) Omonuwa v. Oshodin & Anor. (1985) 2 NWLR (Pt. 10) 924; (1985)2 S.C.1 at 31.
(iv) Omolowo v. ANN. Ltd (1991) 8 N.W.L.R. (Pt. 209) 371 at 380.
(v) Ikeazor v. Ikeazor (1994) 5 N.W.L.R. (Pt. 346) 609 at 621.
(vi) Kalu v. Igwe (1991) 3 N.W.L.R. (Pt. 178) 168.
On the submission of respondent’s counsel concerning section 15(1) of the Court of Appeal Act, appellants’ counsel submitted that to the extent that section 15(1) of the Court of Appeal Act places a procedural bar to the right of appeal conferred by section 226(1)(b) of the 1979 Constitution, the said section 15(1) is void. Counsel relied on
(1) Kalu v. Mbuko (1988) 3 N.W.L.R. (Pt. 80) 86;
(2) Brit-am Ins. Co. Ltd. v. Edema-Sillo (1993) 2 N.W.L.R. (Pt. 277) 567:
(3) Elobisi v. Onyeonwo (1987) 5 N.W.L.R. (Pt. 120) 224 at 231;
(4) Lekwot v. Judicial Tribunal (1993) 2 N.W.L.R, (Pt. 276) 410;
(5) Oyawole v. Shehu (1995) 8 N.W.L.R. (Pt. 414) 484 at 493; and
(6) Guardian Newspapers Ltd. v. A.G. Federation (1995) 5 N.W.L.R. (Pt. 398) 703.
In reacting to the respondent’s preliminary objection. I am treading a path that has been pre-charted by binding judicial authorities. I therefore only need to follow the binding judicial authorities. In Akinsanya v. U.B.A. (supra) the Supreme Court extensively discussed the distinction between final and interlocutory orders. The court discussed the earlier judicial authorities foreign and local, on the point. In particular, the court considered Omonuwa v. Oshodin (supra). It was emphasised that the courts in Nigeria should follow the test as formulated by Lord Alverstone C.J. in Bozson v. Altricham U.D.C (1903) 1 K.B. 547.
That test is:
“Does the … order, as made, finally dispose of the rights of the parties? If it does, then I think it ought to be treated as a final order; but if it does not, it is then, in my opinion, an interlocutory order.”It is the above test that I must now apply to the facts of this case. The appellants had approached the lower court with an application that the writ of attachment issued by that court be set aside on the ground that the same was issued in violation of the provisions of section 251 (4) of 1979 Constitution as amended by Decree No. 107 of 1993. The lower court refused the application. The order of the lower court refusing the application left no other matters or issues still to be referred to it for determinations. The order therefore finally settled the issues agitated on the application. It was therefore the final order of the lower court that the appellants have appealed against. This determination would appear to have settled the issue raised by the respondent in connection with section 15(1) of the Court of Appeal Act, 1976. It is no longer necessary for me to consider the matters argued in connection with section 15(1) of the court of Appeal Act since I have come to the conclusion that the order appealed against is a final decision of the lower court.
The above disposes of the respondents preliminary objection. I accordingly overrule the preliminary objection.
I now consider the merits of the appeal. I shall in doing so be guided by the issues raised by the appellants as I consider them the more germane than the respondent’s issues. Now section 251 (4) of the 1979 Constitution as amended by the Constitution (Suspension and Modification) Decree No. 107 of 1993 provides:
“Notwithstanding the provisions of this section, no person shall endorse a judgment against a Ministry or Extra Ministerial Departments without the fiat of the Attorney-General of the Federation or the Attorney General of a State whether or not he was, in either case, a party to the proceedings”;
The first issue to be resolved in this appeal is – Is the University of Jos a “Ministry or Extra Ministerial Department(s)” as 10 allow it take umbrage under the provisions of Decree No. 107 reproduced above? The appellants’ counsel has in appellants’ brief argued thus (page 3);
“It is submitted that the words of the above provisions are clear and unambiguous and should be given its literal interpretation.
It is also proper to consider the fact that section 251 (4) is an amendment to the original section 251, by an addition. This point arises for consideration, because to be able to interpret section 251(4), the court as one of the cannons of interpretation, is enjoined to have recourse to the mischief rule of interpretation.
And the factors for consideration when construing the applicability of this rule in the interpretation of statutes are (a) the position of the law before the enactment of the statute being construed; (b) what the mischief was for which the earlier law did not provide (c) what remedy the law-maker has now procured to deal with the mischief and (d) the true reasons for the remedy. Ifezue v. Mbadugha (1984) 1 S.C. NLR. 427.
Adverting to the above factors, the position of the law, before the amendment of section 251 by an addition of subsection 4, was such that there was no qualification or restriction as to the persons upon which the judgment of a court could be executed, neither was there any condition precedent prescribed before any execution can be levied pursuant to the judgment of the court, in the initial provision of section 251. This entitled any judgment debtor (?) to enforce the judgment of any court, even against government properties, irrespective of the nature of essential services such government Ministry or Extra Ministerial Department was rendering.
It is submitted that the rationale behind the provisions of section 251 (4) is to restrict the manner or procedure of enforcing court decisions against the Stale or its agencies. This is to avoid achaotic situations that may arise where government operations or business grinds to a halt following the unrestrained attachment and sale of government properties such as ambulances, refuse disposal vans, police or military vehicles or public buildings. Prior to the promulgation of subsection 4, any judgment can (sic) be executed against government, its Ministry or Extra Ministerial Departments, and the properties of these functionaries became depleted as a result of the attachment and sale of those properties. The business of government became hindered. It was to regulate this manner of execution that section 251 was amended by an addition of subsection 4 contained in the Constitution (Suspension and Modification) Decree NO.107 of 1993.”
I shall in the course of this judgment reflect the action of respondent’s counsel to the argument of appellants’ counsel reproduced above. It may well be true that the rationale behind the promulgation of subsection 4 to section 251 of the Constitution is as explained by appellants’ counsel in the passage reproduced above. But the said explanation is not of any assistance in the determination of whether or not the University of Jos is covered by the provision. There is of course no doubt that ‘a ministry or Extra Ministerial Departments’ is/are covered.
Appellants’ counsel has relied on the definition of ‘Ministry” in Black Law Dictionary thus:
“a department of government fur which a Minister is responsible to parliament” and Webster’s Dictionary which defines a ‘Ministry as – “The Body of officials in charge of the administration or departments of a government …. An executive department of government.”
The University of Jos was created on 28/9/79 by the University of Jos Act, Cap. 456 Laws of the Federation 1990 (hereinafter referred to as ‘the Act’). The Act makes the University of Jos a ‘body corporate with perpetual succession and a common seal. It was also endowed with capacity to sue and be sued in its corporate name. When a body has the capacity to sue and be sued, it is implicit in the conferment of that capacity that the body possesses on its own the capacity to satisfy the judgment given against it and to enforce against other persons the judgment in its favour. When a Ministry of Government or Extra-Ministerial Department is sued, it is sued in the name of the Attorney-General of the Federation or the State concerned. This is because such Ministries of Governments or Extra Ministerial Departments do not possess like a body corporate the capacity to be sued by any other name or description.
In the respondent’s brief, counsel referred to the definition of ‘department’ given at page 436 of Black’s Laws Dictionary 6th Edition thus:
“One of the major administrative divisions of the executive branch of government usually headed by an officer of cabinet rank.”
In construing the provisions of a statute, it is permissible in ascertaining the ordinary sense of particular words to refer to dictionaries which show what that sense was when the statute was passed. See White and Collins v. Minister of Health (1939) 2 K.B. 838 and Goodhew v. Marton (1962) 2 All ER 771. It is also to be borne in mind that words used in a statute are primarily to be construed in their ordinary meaning or popular sense and as they would have been generally understood the day after the statute was passed unless such a construction would lead to manifest and gross absurdity or unless the context requires some special or particular meaning to be given to the words – Board of Works for the Wandsworth District v. United Telephone Co. (1884) 13 Q.B.D. 904 at 920; Sharpe v. Wakefield (1888) 22 Q.B.D. 239 at 241; Re Lockwood, Atherton v. Brooke (1958) Ch. 231 and Stephens v. Cuckfield R.D.C (1960) 2 All ER 716 at 717.It seems to me that when the ordinary and popular meaning of “a Ministry or Extra Ministerial Department” is adhered to as I shall do in this case, the University of Jos cannot qualify as one of the bodies covered under section 251 (4) of the 1979 Constitution as amended by Decree No. 107 of 1993.
Further, whilst it is manifest that section 251(4) was promulgated in order to grant a special protection to Government Ministries and Extra Ministerial Departments (Both Federal and State) which the ordinary citizens do not possess, I must also bear in mind that in its effect the Provisions is a denial to the citizen of his right to reap the fruits of a judgment in his favour following a litigation in which he has been successful against Government Ministries or Extra Ministerial Department. In effect, the provision takes away or at least suspends the Constitutional rights of a citizen to enjoy the benefits of judgment in his favour. This is because, it is the Constitution that confers the right of access to the courts. If after a citizen has been vindicated by a judgment in his favour, he is to be denied the immediate enjoyment of what the court has granted him, this must be viewed as a derogation from such rights. I, of course bear in mind that section 251 (4) is now a Constitutional provision which I must implement to the letter. But it is a settled principle that in the construction of a statute, unless a clear and unambiguous intention so to do appears, a provision which takes away or attempts to wittle down an established right should be construed strictly and narrowly such as not to extend its purview beyond the boundaries or scope stated in the provision. See R v. Halliday (1917) A.C. 260 at 274; Obado v. Military Governor of Kaduna State (1990) 6 N.W.L.R. (Pt. 157) 482 at 494; Nwosu v. Imo State Environmental Sanitation Agency (1990) 2 N.WLR. (Pt.135) 688 at 715. When the matter is viewed from the angle that section 251(4) introduces a new provision which in its effect must delay the realisation of the fruits of judgment in favour of a litigant. I must construe strictly and narrowly the provision. I do not see how it can be stretched to include or cover the University of Jos which is a body corporate with its own internal organs and departments. I am not impressed by the argument that I should view the matter differently just because the President of Nigeria is a visitor to the University of Jos.
Even the law which created the University of Jos clearly set out the powers of the visitor which do not include that of being answerable for the liabilities incurred by the University of Jos in a civil litigation. The argument that the University of Jos is under the Federal Ministry of Education is equally unimpressive. It may be that the Federal Ministry of Education supervises Federal Universities but that it is not in the sense that the Universities are departments under the Federal Ministry of Education.
In its submission, appellants’ counsel said:
“It is humbly submitted that the establishment of University of Jos is for the enhancement and advancement of the higher education objectives in section 18 of the 1979 Constitution as in chapter 2 thereof. It is further submitted that the intendment of Decree No, 107 is to cover all organs established by law through which the Government carries out its functions; University of Abuja v. Aloge (1996) 4 N.W.L.R. (Pt. 445) 706 at 725. The functions or duties discharged by the University of Jos are those under the supervision of the Ministry of Education, It can therefore be said that the University of Jos is an Extra Ministerial Department, in that the functions or duties performed by University of Jos becomes those of the Ministry. See Bamgboye v. University of Ilorin (1991) 8 N.L.R. (Pt. 207) 1 at 30.”
With respect to appellants’ counsel, I am unable to agree with him in the approach he has urged, Counsel is in effect saying that in the ascertainment of the intention of the law maker, the court should engage in wild speculations rather than gather such intention from the words used in the instrument being construed.
The learned authors of Halsbury’s Law of England 4th Edition volume 41 at paragraphs 856, 847 and 864 write:
“856: Ascertaining the intention of Parliament: The object of all interpretation of a written instrument is to discover the intention of the author as expressed in the instrument, The dominant purpose in construing a statute is to ascertain the intention of the legislature as expressed in the statute considering it as a whole and in the context. This intention, and therefore the meaning of the statute, is primarily to be sought in the words used in the statute itself, which must if they are plain and unambiguous, be applied as they stand, however strongly it may be suspected that the result does not represent the real intention of Parliament.
857: Construction where the statute is unambiguous. If the words of a statute are clear and unambiguous, they themselves indicate what must be taken to have been the intention of Parliament and there is no need to look elsewhere to discover their intention or their meaning.
864: Speculation as to Parliaments intention not permissible.
If the result of the interpretation of a statute according to its primary meaning is not what the legislature intended, it is for the legislature to amend the statute construed rather than for the courts to attempt the necessary amendment by investing plain language with some other than its natural meaning to produce a result which it is though the legislature must have intended.”In University of Abuja v Ologe (supra) this court had to consider whether or not the University of Abuja was an agency of the Federal Government. We held that in as much as the University was engaged in higher education, a matter that falls under the duties of the Federal Government, it was an agency of the Federal Government. The issue in dispute in the present appeal is clearly different. It is whether or not the University of Jos is a Ministry or Extra Ministerial Department of the Federal Government for the purpose of section 251 (4) of the 1979 Constitution as amended. It is therefore unhelpful for counsel to suggest that we should follow the interpretation given in another context different from the facts of the current case. The provision being construed has employed words the ordinary or plain meaning of which is clear. It is not for me therefore to stretch the ordinary or plain meaning of the language employed in the provision to accommodate the meaning of another provision as interpreted in the University of Abuja v. Oloye. I now consider issue Number 2. Was the lower court right to have ordered that the appellants should deposit 2 million naira in court? I think not. None of the parties had asked for such an order. The appellants had by the application brought before the lower court asked that the writ of Attachment issued against them be set aside. The lower court refused the application. A court is at liberty in its ruling or judgment to give orders consequential or ancillary to the principal relief sought by the parties. An order that the judgment debt or 2 million naira be deposited in court was neither consequential or ancillary to the refusal of appellants’ application. It is trite law that a court is without jurisdiction to grant a relief not claimed before it or to award more than claimed. See O.S.H.C. v Shittu (1994) 1 N.W.L.R. (Pt. 321) 476: Chukwu v Ossai (1994) 4 N.W.L.R. (Pt. 339)49. In any case, if a court is intent on adopting a course other than that parties have urged on it, the parties must first be heard on the new course proposed by the court. Ojo-Osagie v. Adonri (1994) 6 N.W.L.R. (Pt. 349) 131.The lower court was in error to have made the order that the appellants deposit 2 million naira in court. As it was an order made without jurisdiction, it is a nullity.
I so pronounce it. I accordingly set it aside.
In the final conclusion, this appeal partially succeeds. I affirm the order of the lower court dismissing appellants’ application that the writ of attachment issued by the court at the instance of the respondent be set aside. The order that the sum of 2 million naira be deposited in court is set aside. In fairness to the respondent, he had expressed in his brief that he did not support the order that 2 million naira be deposited in court, He had not asked for the order. The respondent is entitled to cost which I fix at N1,500.00.
Other Citations: (1998)LCN/0354(CA)
