Zacheaus Bako V. Kuje Area Council & Anor (2000)

LawGlobal-Hub Lead Judgment Report

BULKACHUWA, J.C.A.

This is an appeal against the decision of the Federal Capital Territory High Court Abuja, delivered on the 28th day of May, 1996.

The appellant as plaintiff before the lower Court took out a writ of summons on the 18th day of November, 1993 claiming against the Respondents the following reliefs:
(1) A declaration that his purported removal from Office vide Letter dated 10th day of November, 1993 reference No.KAC/PF/SEC/783/Vol.2, is unlawful, null, void and unconstitutional.
(2) An order of the court setting aside the removal of the plaintiff as the Chief of Rubochi vide letter dated the 10th day of November, 1993 reference No.KAC/PF/SEC/783/Vol.2.
(3) An order of the court reinstating the plaintiff to his office as the Chief of Rubochi without prejudice to his entitlement as the Chief of Rubochi.

The case of the Appellant was that he was appointed the Chief of Rubochi by his people on the 25th day of September, 1987. However, on the 10th day of November, 1993 he received a letter from the Head of Personnel Management of the Kuje Area Council informing him that he has been removed from office on the basis of the alleged grievances against him by his subjects. His contention was that he was never queried nor given fair hearing by the defendants/respondents prior to his removal from office.

The Respondents on the other hand alleged misconducts unbecoming of a Chief for which on the petition of the Kingmakers of Rubochi to the Respondents a Committee of Inquiry was set up and on their recommendation removed the Appellant from office.

The Court after hearing both parties dismissed the claims of the Appellant, who being dissatisfied has now appealed to this Court.
The notice and grounds of appeal were subsequently amended with the leave of this Court. The amended grounds of appeal are reproduced below without their particulars:

AMENDED GROUNDS OF APPEAL
1. Having held as follows: “There is no law authorising the Minister of the Federal Capital Territory (FCT) to either approve the appointment of any Chief in the Federal Capital Territory (FCT) or to accept a recommendation for such a person’s removal from office…”, the learned trial Judge therefore erred in law when he failed to declare the purported removal of the defendants/respondents null and void as there was no legal basis upon which it could be supported.
2. The learned trial Judge erred in law when he failed to make a specific finding on Exhibit P1 which forms the crux of the matter before him.
3. The learned trial Judge misdirected himself as to the facts and evidence before him when he held as follows: “As of the time the King makers of Rubochi sat down, deliberated and resolved that the plaintiff had ceased to be known and called the Chief of Rubochi, there was no law requiring that such a decision was to be confirmed or approved by the Minister of the Federal Capital Territory or any other person and I so, hold”.
4. The learned trial Judge erred in law and reached a very wrong conclusion when he held as follows: “It is my considered opinion that going by the evidence before this court, the plaintiff was effectively removed by the Kingmakers who appointed him in accordance with the Native Law and Custom of Rubochi Community.
5. The learned trial Judge erred in law when he held as follows: “…I find it difficult to understand why the plaintiff said he was never queried before his removal. In my view, the calling of the plaintiff to attend meeting which finally produced Exhibit D3 and the calling on him at such meeting to respond to the charges leveled against him amounted to a query and I so find.”
6. The learned trial Judge therefore erred in law when he introduced an extraneous consideration which has no relevance to the issues calling for determinations before him when he later found in the same judgment as follows: “I accept that since his selection and appointment as a Chief of Rubochi, the plaintiff has failed to perform the ritual both which would have allowed him to be presented with Sword or Knife”.
7. The learned trial Judge erred in law when he held as follows: “…As far as this matter is concerned, section 33(1) of the 1979 Constitution does not apply”.

In accordance with the rules of this Court, parties filed and exchanged their Briefs of Arguments. The Appellant has in his brief raised three issues for determination of this appeal. The Respondents adopted the three issues raised by the Appellant and replied to the arguments of the Appellant. They therefore became the issues to be determined in this appeal. The issues as raised by the Appellant are:
(1) Whether the issue of fair hearing was properly considered by the learned trial Judge having regard to the State of pleadings and evidence before him and in particular, whether the trial Judge was not in error when he held that section 33(1) of the 1979 Constitution was not applicable in this case?.
(2) Whether the finding of the lower Court that the plaintiff was effectively removed by the Kingmakers who appointed him flow logically having regard to the State of pleadings and evidence before the Honourable Court?.
(3) Whether it was right for the learned trial Judge to proceed to dismiss the plaintiff’s claim having found that, there is no law which confers on the Honourable Minister of Federal Capital Territory, the right or power to confirm or approve the removal of the Chief of any Community in the Federal Capital Territory?.
This Court had on the 21st day of September, 1999 posed suo motu this question to the parties.
“WHETHER IN THE ABSENCE OF ANY LAW ON CHIEFTAINCY MATTERS WITHIN THE ABUJA CAPITAL TERRITORY AND ALSO HAVING REGARD TO THE PROVISIONS OF DECREE NO. 6 OF 1976, HAS THE APPELLANT ANY LOCUS STANDI TO ANY CASE ON CHIEFTAINCY MATTERS SUCH AS THIS CASE?”.
and thereafter asked the learned Counsel to the parties to submit supplementary briefs on the question posed.

The Appellant submitted his supplementary brief which was deemed filed by this Court on the 31st January, 2000 while the Respondents filed their brief on the 24th February, 2000. Both parties relied on the provisions of section 6(6) of the 1979 Constitution which provides as follows:
“Section 6(6). The Judicial powers vested in accordance with the foregoing provisions of this section:
(a) Shall extend, not withstanding anything to the contrary in this Constitution, to all inherent powers and sanctions of a court of law;
(b) Shall extend to all matters between person, or between Government or authority and any persons in Nigeria, and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person…”
and Section 236(1) provides:
“Subject to the provisions of this Constitution and in addition to such other jurisdiction as may be conferred upon it by law, the High Court of a State shall have unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation, or claim is in issue or to hear and determine any criminal proceedings involving or relating to any penalty, forfeiture, punishment or other liability in respect of any offence committed by any person …”
Section 34(1) of the High Court Law Cap. 49 Laws of Northern Nigeria which provides:
“The High Court shall observe and enforce the observance of, every native law and custom which is not repugnant to natural justice, equity and good conscience, nor incompatible either directly or by implication with any law for the time being in force, and nothing in this law shall deny any person of the benefit of such native law and custom”.
Submitting that the combined effect of section 6(6) and section 236(1) of the 1979 Constitution read with the provisions of section 34(1) of the High Court Law which had been specifically made applicable to the Federal Capital Territory by virtue of Decree No. 12 of 1976 gives the Appellant the locus standi based on Native Law and Custom to institute this case, and the court the jurisdiction to entertain the matter.
It is also of interest to note that the issue of jurisdiction was raised before the lower Court, as was pointed out by the Appellant, and the trial Court ruled that it has jurisdiction to entertain the matter. There has been no appeal or cross-appeal on jurisdiction. I shall therefore let sleeping dogs lie.
I agree entirely with the submission of the learned Counsel that the Appellant has locus standi to institute the case before the trial Court and upheld it in its entirety.
Having determined the poser raised by this Court I will proceed to the main appeal.
Arguing the appeal learned Counsel for the Appellant submitted in his brief on the 1st issue that it is pertinent when referring to section 33(1) of the 1979 Constitution to have recourse to its interpretation in Adeniyi v. Governing Council, Yaba Tech. (1993) 7 SCNJ 309; (1993) 6 NWLR (Pt.300) 426 by the Supreme Court, that the section encompasses the principle of fair hearing and natural justice and:
“It is not confined to strictly legal tribunals but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals”.
That in an action where the plaintiff is alleging denial of fair hearing the basic issue calling for consideration is not whether the allegation or grievances are true or did take place but whether adverse party was given the opportunity by the party in position to act to state his own side of the story and cross-examine his accusers so as to test the veracity of their allegations or claim.
He submitted that the facts of the case showed that sometime in 1993, the plaintiff received a letter from the 1st defendant that he should come and face some allegations levied against him by the Kingmakers of Rubochi. The PW1 was the Chairman of the Committee testified that before the Committee could complete its assignment, the Area Council was dissolved and he did not submit its report. The PW3 was the secretary of the Committee and tendered the unsubmitted report as Exhibit P3. That the petition which formed the basis of the committee was admitted as Exhibit P4 – based on the above the Appellant submitted that, if in 1993 a Committee which was set up to investigate the appellant could not complete its assignment, it could not be said that there was a hearing talkless of fair hearing. Further submitting that, the Respondents have no legal basis to act on Exhibit P4 as there was no hearing.
That though ten witnesses testified for the Respondents to show that there was no denial of fair hearing and six of them were not cross-examined, it is not the number of witnesses that testified but the quality of the evidence adduced that mattered. That their evidence on the whole was largely a reintegration of the various allegations against the Appellant contending that, the Appellant was not on trial on these allegations at the lower Court. That the people on trial were the Respondents, particularly as to the decision appraised in Exhibit P1, and ought to adduce evidence to show how the appellant was tried and accorded a fair hearing. On this issue, the Appellant urged this Court to hold that the learned trial Judge was wrong to have held that section 33(1) of the 1979 Constitution was inapplicable in this case and based on the evidence adduced before it, the Appellant was not granted a fair hearing by the Respondents before Exhibit P1 was issued.

Replying on that issue, learned Counsel for the Respondents submitted that the Appellant was given fair hearing by the Kingmakers who appointed him, the Kuje Area Council, and the Area Council Service Board and cited instances in the record of proceedings of the trial Court that is, in the testimonies of the DW1 and DW2 at pages 37 – 38 and 40 where they sought to show that the Appellant failed to perform certain traditional rites on his appointment and begged for a period of grace of three months at the end of which he refused to do so saying that he has a letter from the Government which supersedes the performance of any traditional rites. That he instigated a wife to one of his subjects to leave her husband and he married her, carried other women around in his car drinking alcohol, collected tax from his subjects without issuing receipts. That he was advised to desist from these acts by the Kingmakers but he refused. They then boycotted the palace for a week but he still refused, they then reported him to his kins who are S.S. Bako, his senior brother and three other relatives, Dr. Aboki Zhawa, Alhaji Ibrahim Tajibey and Moses Tatari who collectively spoke to him but he refused, they then wrote the petition Exh. P4 to the Kuje Area Council. The Kuje Area Council then set up an Investigation Panel to investigate the allegations and the Appellant did appear before the Panel and featured prominently. Even though the panel did not submit its report to the council the report was tendered by the Appellant as Exh. P3 before the trial Court. The Respondents further went to show that the appellant was similarly invited by the Area Council Service Board to a meeting because of the series of allegations against him levied by the Kingmakers, he admitted them and begged for forgiveness and a letter of warning, Exhibit D4, was issued to him.
That these steps taken by the Kingmakers and the Area Council constitute fair hearing as was rightly held by the trial Judge at page 72 of the records and urged this Court to so hold.
Two questions need to be answered from this issue:
(1) Was the issue of fair hearing considered by the trial court having regard to the state of pleadings and evidence before it?
(2) Is section 33(1) of the 1979 Constitution as amended applicable to this case?

The relevant paragraphs in the Appellant’s statement of claim before the trial court in answering the 1st question are:
(5) The plaintiff avers that he was not issued with any query nor was his own side of the story heard before he was removed from office.
(6) The plaintiff further avers that the alleged grievances which form the basis of his removal were not known to him.
(7) The plaintiff shall contend at the trial that he was denied fair hearing by the defendants in removing him from office.
The Appellant and two other witnesses he called testified as follows. At pages 29 – 30 lines 20 – 24 and 10 – 14 PW1 Yusuf Doperi stated thus:
“Sometimes in 1993 around August or September, there was a petition written by the Kingmakers in Rubochi to the Sole Administrator. In the Petition certain allegations were levied against the plaintiff’.
“Yes the Plaintiff appeared before the panel. I cannot say how many times plaintiff appeared before the panel”.
PW1 was the Chairman of that Panel. At page 31 lines 10-16, the PW2 who was the plaintiff testified to this effect:
“I was never queried before the removal but sometimes in 1993, I received a letter from Kuje Area Council saying I should come and face allegations against me by Kingmakers. I went before the Panel but before the Panel could submit its report a dismissal letter was given to me”,
And under cross-examination at page 32 lines 32 – 37 he stated:
“I was given a letter which I do not consider to be a warning letter. The letter was issued and was given to me by the Federal Capital Development Authority”.
At page 37 lines 5 – 7 PW3 the Secretary of the Investigation Panel stated:
“We sat and listened to petitioners and called the Chief himself and listened to him.”
The trial court at page 69 lines 3 – 13 has this to say:
“Paragraph 5 of the respondents Exh. DW3 shows that the Chief that is, the plaintiff had responded to these charges when called upon to do so by the Chairman of the Committee”.
“In view of the foregoing, I find it difficult to understand why the plaintiff said he was never queried before his removal. In my view, the calling of the plaintiff to attend the meeting which finally produced Exh. DW3 and the calling on him at that meeting to respond to the charges leveled against him amounted to a query and I so find. I do not believe the plaintiff when he said he was never queried before being removed. Clearly, there is evidence oral and documentary which shows that he attended the meeting held on 5th December, 1989 where all charges against him were read out to him and his response thereto requested. Exh. D3 clearly shows all these. I therefore reject any oral testimony to the contrary. See section 132 of the Evidence Act”.

From the foregoing and the testimony of the Appellant before the trial Court, it appears that an Investigation Panel was set up upon a petition by the Kingmakers to the Kuje Area Council and the appellant was called before the panel to defend the allegations leveled against him and he actively participated in the deliberation of the said panel. Exh. D3, the report of the panel, was tendered before the court. The lower Court was therefore right to have relied on the oral and documentary evidence to arrive at its findings above.
What in effect is fair hearing? It has been defined as where the adverse party is given the opportunity by the party in position to act to state his own side of the story and cross-examined his accusers so as to test the veracity of their claim. Adeniyi v. Governing Council, Yaba College of Tech. (1993) 7 SCNJ 304; (1993) 6 NWLR (Pt.300) 426 and Adigun and other v. A.-G., Oyo state & Anor (1987) 3 SC 304; (1987) 2 NWLR (Pt.56) 197.
Following the above, I am of the view that in the circumstances of this case the Appellant was accorded fair hearing by the defendants and I so hold. The finding of the trial Court was based on the evidence both oral and documentary that was before it, and an appellate Court will only interfere with a finding of a trial Court where it is found to be perverse, based on inadmissible evidence, or based on no evidence before the court or on wrong and unreasonable conclusion-
– Osho v. Ape (1998) 8 NWLR (Pt.562) 492.
– Ahmed v. State (1998) 9 NWLR (Pt.566) 389.
– Makinde v. Akinwale (2000) 2 NWLR (Pt.645) 435.
I see no reason to disturb the finding of the trial Court which was based on the evidence before it. I therefore answer the first question in the affirmative. The finding of the trial Court on the 2nd question was at page 72 lines 20-28 where he says:
“The Kingmakers Council of Rubochi is not a court and neither was it a tribunal established by law. No doubt, it can be argued that when they sat to confront the plaintiff with the allegations against him they were acting quasi judicially but the Supreme Court had held in the case of Bakare v. Lagos State Civil Service Commission and Anor 1992 8 NWLR (Pt.262) 699 that this section that is, section 33, deals only with judicial bodies and does not extend to all bodies not judicial but all the same deciding on rights and obligations. I consider myself bound by that decision and therefore hold as far as this matter is concerned section 33(1) of the 1979 Constitution does not apply”.
Section 33(1) of the 1979 Constitution provides:
“In the determination of his civil rights and obligations including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality”.
In effect, the above provision will apply where the determination of civil rights and obligations of an individual arises for determination before a court or tribunal established by law.

In the case at hand, the determination of the appellant’s civil rights and obligations arose for determination before an Investigation Panel set up by Kuje Area Council and before the Chairman of the Area Council Service Board. Clearly, the Investigation Panel and the Area Council Service Board are not Tribunals established by law and therefore not within the purview of section 33(1). There is no evidence indicating that they were so established.

Applying Bakare’s case (supra) section 33(1) can therefore not be applied to them. The trial Judge was thus right to have found so and I uphold his finding. From the foregoing issue, one is resolved in favour of the Respondent. The 2nd and 3rd issues were treated together by the parties I will accordingly consider them together.

These issues are whether the findings of the lower Court that the Appellant was effectively removed by the Kingmakers who appointed him flows logically from the judgment having regard to the state of the pleadings and evidence before the court and whether it was right for the learned trial Judge to dismiss the appellants claim having found that there was no law which confers on the Honourable Minister Federal Capital Territory, the right or power to confirm or approve the removal of the Chief of any Community in the Federal Capital Territory.

It is the submission of the appellant that the trial Court having found that there is no law authorising the Minister of Federal Capital Territory (FCT) to either approve the appointment of any Chief in the Federal Capital Territory (FCT) or to accept a recommendation for such person’s removal from office, the logical conclusion the trial Judge should have reached was to nullify the purported letter of removal, Exhibit P1 as ultra vires the Minister of the Federal Capital Territory.

That Exhibit P1 which formed the basis of the writ of summons in this case did not emanate from the Kingmakers of Rubochi, neither were they parties nor joined as parties, it was therefore wrong for the trial Judge to have held that the Appellant was effectively removed by the Kingmakers who appointed him. He contended that the finding was at variance with the evidence adduced and urged this court to allow the appeal and enter judgment for the Appellant as per reliefs contained in his statement of claim.

The Respondents on the other hand, submitted that having referred to the statement of pleadings and evidence before the court, the trial Judge rightly held that the appellant was effectively removed by the Kingmakers who appointed him and the trial Judge was also right in dismissing the appellant’s claim having found that there was no law which confers on the Minister of Federal Capital Territory (FCT) the right or power to confirm or approve the removal of the Chief of any Community in the Federal Capital Territory (FCT).

That from paragraph three of the statement of claim which states:
“The plaintiff was installed as the Chief of Rubochi on the 28th day of September, 1987 by his people, the Rubochi Community and was so recognised by defendants”.

It follows that the Appellant having been appointed by his people, the Rubochi Community and having accepted the recognition and or confirmation of the appointment given by the Minister of Federal Capital Territory (FCT) without raising alarm as to the powers of the Minister of (FCT) way back in September, 1987, it will now be inequitable for the Appellant to raise the alarm simply because the present confirmation is not in his favour. That even if there is no such confirmation the appellant stood removed in line with their customs and urged us to dismiss the appeal.

The evidence led by the Appellant as PW2, showed that on his appointment in September. 1987, a letter of appointment was given to him by the Minister of the Federal Capital Territory (FCT). He was also served with a letter of dismissal in November, 1993 by the Minister Federal Capital Territory (FCT). These two letters were tendered before the court as Exhibits P1 and P2.

The trial Court having rightly found at page 71 line 34:
“There is no law authorising the Minister of the Federal Capital Territory (FCT) to either approve the appointment of any Chief in the Federal Capital or to accept a recommendation for such person removal from office. It seems to me therefore that, the letter of appointment Exhibit P2 by which the plaintiff was initially appointed a Chief way back in 1987, and the recommendation of the Kingmakers of Rubochi to the Honourable Minister Federal Capital Territory (FCT) in June, 1993 and September, 1993 are rather unnecessary and antiose because as at the time the plaintiff was selected and appointed Chief of Rubochi, there was no law requiring that such an appointment was to be approved by either the Minister of the Federal Capital Territory (FCT) or anyone else for that matter”.

Having found so far, the logical conclusion to be drawn from such finding was to nullify Exhibits P1 and P2 respectively the letters of appointment and dismissal of the Appellant as ultra vires the powers of the Minister of the Federal Capital Territory (FCT).

The trial Court having failed to make the above finding based on the evidence both oral and documentary adduced before it, I use our powers under Order 1 Rule 20(4) of the Court of Appeal Rules to find as follows:
“There is no law authorising the Minister of the Federal Capital Territory to either approve the appointment of any Chief in the Federal Capital Territory or to accept a recommendation for such person’s removal from office. The Appellant’s letter of appointment with reference No. S/RDA/CA/6/Vol.11/318 dated 28th September, 1987 admitted as Exhibit P2 and the letter dismissing him from office reference No.KAC/SEC/283/Vol.1/2 dated 10th November, 1993 admitted as Exhibit P2 are ultra vires the powers of the Minister of the Federal Capital Territory (FCT) and are hereby declared null and void and of no effect”.

On the whole, I believe the substitution of the above finding with that of the trial Court has not substantially affected the merit of the case.

In essence, the Kingmakers are the only legal people who can appoint or dismiss their Chief. The decision of the Lower Court also arrived at that conclusion, no miscarriage of justice has therefore been occasioned, only an error in arriving at the final decision. An error of a Lower Court is immaterial where miscarriage of justice has not been occasioned as in this instance – Oladele & Ors v. Oba Adekunle Aromolaran 11 (1996) 6 SCNJ 365; (1996) 6 NWLR (PtA53) 180; Nwankpa & Anor v. Ewulu & Ors (1995) 7 SCNJ 197, 7 NWLR (pt.407) 260; Agbabiaka v. Saibu & Ors (1998) 7 SCNJ 305, (1998) 10 NWLR (pt.571) 534. The 2nd and the 3rd issues are also determined in favour of the Respondents. In the light of the foregoing, it is my view that this appeal lacks merit and I hereby dismiss it with N5,000 (Five Thousand Naira) costs to the Respondents.

Other Citations: (2000)LCN/0843(CA)