H. R. H. IGWE KRIS ONYEKWULUJE & ANOR V BENUE STATE GOVERNMENT & ORS

CORAM

SULEIMAN GALADIMA JUSTICE, SUPREME COURT

UMARU ATU KALGO , JUSTICE, SUPREME COURT

SULEIMAN GALADIMA JUSTICE, SUPREME COURT

PARTIES

1. H. R. H. IGWE KRIS ONYEKWULUJE

2. ARTEX INVESTMENT LTD

APPELLANTS

BENUE STATE GOVERNMENT & ORS

RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The facts leading to this appeal commenced when the 1st Respondent entered into a contract with the 2nd Applicant/Appellant for the supply and installation of 30 x30 KW FM Transmitters to the 1st Respondent’s Radio Broadcasting Station. The contract contained an Arbitration clause which provides for recourse to Arbitration in the event of any dispute in the course of execution of the said contract which in the opinion of the parties cannot be resolved amicably. The 1st Respondent was however dissatisfied with the qualities of the material supplied and the conduct of the staff and officers of the 2nd Applicant/Appellant, consequent upon which a Judicial Commission of Inquiry was set up pursuant to the Commission of Inquiry Law, Laws of Northern Nigeria 1963 to ascertain among other things whether there was a misappropriation of the money meant for the project. At the end of the sittings, the 3rd Respondent issued a White Paper in which the 2nd Applicant/Appellant was indicted and requested to refund the sum of N85, 575, 111.60 (Eighty Five Million, Five Hundred and Seventy Five Thousand, One Hundred and Eleven Thousand, Sixty Kobo). Dissatisfied with the outcome of the White Paper, the Applicant/Appellant applied to the Benue State High Court, Markurdi seeking amongst other things an order of Certiorari to quash the proceedings of the 3rd Respondent, its award and the White Paper issued in its consequence. The main contention of the Applicants/Appellants was that the 3rd Defendant/Respondent violated the Applicants/Appellants right to fair hearing and that the said commission exceeded its jurisdiction, hence their reason for seeking that the White Paper issued by the 2nd Respondent based on the Report of Inquiry submitted by the 3rd Respondent be quashed. In a considered judgment of the trial court, the court dismissed the application of the Applicants/Appellants on the ground that they had failed to establish that the 3rd Respondent lacked jurisdiction. Further displeased by the decision of the trial court, an appeal was lodged at the Court of Appeal, Jos Division, and the findings of the trial court were affirmed. The Applicants/Appellants still not satisfied have appealed to the Supreme Court as a final resort.

HELD

Appeal Dismissed

ISSUES

1. Could the fact of the appellants participating “under duress” and “under protest” at the proceedings before the 3rd respondent be rightly and legally construed as abandoning a mutually agreed requirement in the Contract (Exhibit 2) that insists on recourse to Arbitration?

2. Whether the failure of the Lower Court in not considering the unjustified finding and punishment meted on the 1st appellant despite its having been one of the ISSUES not rob its judgment of its efficacy?

3. Were the reliefs sought by the appellants founded on a breach of the Rules of Natural Justice or for want of jurisdiction?

4.Should the answer be in the affirmative, can it be said that the Lower Court looked at/considered the Affidavits filed with the appellants application?

5. Did the cumulative conducts of the 1st, 2nd and 3rd respondents whereupon the appellants were indicted, and penalized on the basis of paragraphs 2 and 3 of Exhibit 7 pass the litmus test handed down by the Supreme Court in the landmark case of ACTION CONGRESS & 1 OR AND INDEPENDENT NATIONAL ELECTORAL COMMISSION (INEC) (2007) FWLR (pt. 378)page 1012

6. Was the lower Court right in stating that it:”Was not in a position or able to know or find out whether the 3rd respondent exceeded its powers including the terms of reference.” Was the Lower Court right when it concluded that the appellants did not explore alternative methods of “getting a public document to be before a Court where the party required to produce it or make it available refuses or neglects to do so.” Does the 1st respondent’s legal authority to constitute a Judicial Commission of Inquiry pursuant to section 2 of the Commission of Inquiry Law allow that he detracts from a mutually binding contract it voluntarily entered into with the 2nd appellant?

7. Whether the non-requirement/application of the Evidence law did not necessitate a constitutionally competent Court, rather than the 3rd respondent, to determine paragraphs 2 and 3 of Exhibit 3?

RATIONES DECIDENDI

DENIAL OF FAIR HEARING – THE DECISION OF A COURT CANNOT BE BINDING ON A PARTY WHO IS DENIED FAIR HEARING

“When a party who is entitled to be heard is denied a hearing before a decision affecting him is made, then by virtue of S. 36 of the Constitution of the Federal Republic of Nigeria, 1999, that decision cannot bind him; because he is not given the opportunity of being heard.”PER S. GALADIMA, J.S.C.

ARBITRATION CLAUSE – IMPLICATION OF AN ARBITRATION CLAUSE

“An arbitration clause is only procedural and does not exclude or limit rights or remedies but merely provides procedure under which the parties may settle their grievance since as in this instance a resort to the courts was not ruled out. This I agree with. I place reliance on Commissioner of Lands V Edo- Osagie & Ors (1974) 12 SC 117; Confidence Insurance Ltd .V. Trustees of O.S.C.E. (1999) 2 NWLR (Pt.591) 373”. PER M.U. PETER- ODILI, J.S.C.

JURISDICTION – DUTY ON COURTS TO OBSERVE THE PROCEDURE AS SPECIFICALLY PROVIDED BY THE RULES IN ORDER TO HAVE JURISDICTION

“For the Court to have jurisdiction, the procedure specifically provided for must be followed as the Rules have same force of law as the Constitution itself. See also Uti v Federal Road Safety Commission (2001) 1 CHR 434”. PER M.U.PETER- ODILI, J.S.C.

WRIT OF CERTIORARI – PURPOSE OF A WRIT OF CERTIORARI

“In the case of: Nwaoboshi Vs Military Governor, Delta State & Ors. (2003) 5 SC 120; (2003) 11 NWLR (Pt.831) 305 @ 318 D – E, Uwaifo, JSC stated the purpose of a writ of certiorari thus: “The writ {of certiorari} is issued in order that the court may bring the proceedings of the inferior tribunal or court before it for inspection and if there is due cause disclosed to quash them. It lies only against bodies exercising judicial or quasi-judicial authority and in respect of acts performed by them in that capacity.” PER K.M.O.KEKERE- EKUN, J.S.C

ORDER OF CERTIORARI – SIGNIFICANCE OF AN ORDER OF CERTIORARI

“Fabiyi, JSC in: Judicial Service Commission of Cross River State Vs Young (2013); 11 NWLR (Pt.1364)1; (2013) 12 SCM 98; (2013) 56 NSCQR 577 @ 614 – 615 E – A referred to the textbook Practice and Procedure of the Supreme Court, Court of Appeal and High Courts of Nigeria (1995 edition) by T. Akinola Aguda at pages 654 – 655, wherein the learned author (of blessed memory) stated the purport of an order of certiorari as follows:
“Certiorari is one of the prerogative writs whose main function is to ensure that inferior courts or anybody entrusted with performance of judicial or quasi judicial functions keep within the limits of the jurisdiction conferred upon them by statutes which create them. Therefore, an order of certiorari will lie to remove into the High Court for purpose of being quashed any judgment, orders, convictions or other proceedings of such inferior courts or body, civil or criminal made without or in excess of jurisdiction.”Per Rhodes-Vivour, JSC at page 618 E – G (supra): “Certiorari is one of the prerogative writs, the other mandamus, used by the court to restrain the abuse or misuse of power, or to correct errors of law, wrong exercise of discretion by tribunals, public authorities and Government Officials, Once a public authority acts judicially or administratively its conduct is subject to control by the courts by means of certiorari or mandamus” PER K.M.O.KEKERE- EKUN, J.S.C