YESUFU V GOVERNOR OF EDO STATE

YESUFU V GOVERNOR OF EDO STATE


READ CASE SUMMARY


IN THE SUPREME COURT OF NIGERIA

ON FRIDAY, THE 8TH DAY OF JUNE, 2001


APPEAL NO: SC.70/1996

CITATION: (2001) 6 LLER 1

Alternative Citations:

(2001) 13 NWLR (Pt.731)517

Before Their Lordships

MICHAEL EKUNDAYO OGUNDARE, J.S.C.

EMMANUEL OBIOMA OGWUEGBU, J.S.C.

SYLVESTER UMARU ONU, J.S.C.

UMARU ATU KALGO, J.S.C.

SAMSON ODEMWINGIE UWAIFO, J.S.C.

BETWEEN

PROFESSOR T. M. YESUFU

(Appellants)

AND

GOVERNOR OF EDO STATE AND VISITOR, EDO STATE UNIVERSITY

THE ATTORNEY-GENERAL, EDO STATE

EDO STATE UNIVERSITY

(Respondents)

 

RATIO/PRONOUNCEMENTS

A. ACTION

1. Locus Standi–Nature of and effect on plaintiff’s right of action

The issue of locus standi goes to the competence or standing of the plaintiff to institute the action at all. Locus standi is the legal capacity of plaintiff/claimant to institute an action in a court of law in exercise of his right under section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1979. That is why it can be raised in limine after the statement of claim has been filed and served. If the plaintiff’s statement of claim discloses no personal interest in the claim put forward by him he will have no locus standi to institute the action and the court will have no jurisdiction to entertain same. Per Ogundare J.S.C. READ IN CONTEXT

2. Locus Standi–what amounts to

The question of what gives a plaintiff the standing to sue or locus standi has been the subject of a number of judicial decisions See Momoh v. Olotu (1970) 1 All NLR 117; Adesanya v. The President (1981) 2 NCLR 358, (1981) 5 SC 112;Adefulu v. Oyesile (1989) 5 NWLR (PU22) 377; Owodunni v. Registered Trustees of CCC (2000) 10 NWLR (Pt.675) 315. It would appear from the welter of authorities on locus standi that a plaintiff, to enable him invoke the judicial power of the court, must show sufficient interest or threat of injury he would suffer. In the case on hand, I do not know what legal interest the appellant would have in the continued existence of the Governing Council from whose chairmanship he had resigned; nor the threat of injury he would suffer. I think the two courts below were right in holding that he had no locus standi to sue for the dissolution of the Governing Council after he had resigned from that body. Per Ogundare,J.S.C. READ IN CONTEXT

3. Essential Difference between locus Standi and estoppel

It is our respectful submission that the factors for determining locus standi are not the same as those for determining estoppel. As learned JCA himself rightly held in Faponle v. U.I.T.H. (1991) 4 NWLR (Pt.183) 43 at 54 – 55 which he quoted in extenso at p.150 of the record:

‘Estoppel by conduct is a rule of evidence … being a rule of evidence therefore to be on the safe side, it must be pleaded and evidence must be led on it by the person relying on it.’ In other words estoppel cannot be raised as a preliminary objection to the institution of an action. It can only be raised as a defence to an action properly brought before the court. To argue that a person is estopped from making a claim in court there is a presumption that the action is properly before the court i.e .., that the action is properly constituted in all respects. Estoppel is only a defence put forward by the defendant(s) in their pleadings in the case and can only be established by evidence.

On the other hand the issue of locus standi goes to the competence or standing of the plaintiff to institute the action at all. Locus standi is the legal capacity of plaintiff/claimant to institute an action in a court of law in exercise of his right under section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1979. That is why it can be raised in limine after the statement of claim has been filed and served. If the plaintiff’s statement of claim discloses no personal interest in the claim put forward by him he will have no locus standi to institute the action and the court will have no jurisdiction to entertain same. Adesanya v. President (1981) 2 NCLR 358, (1981) 5 SC 112; Fawehimni v. Akilu & Anor. (1987) 4 NWLR (Pt.67) 797 and Thomas v. Olufosile (sic) (1986) 1 NWLR (Pt. 18) 669. Consequently while estoppel is a rule of evidence, locus standi affects capacity to sue.

It is therefore our respectful submission that the lower court was in grave error when they decided the appeal before them on the basis of estoppel. Moreover estoppel was not one of the two issues distilled from the grounds of appeal before the lower court and the court should not have given it any consideration much less basing its decision thereon.” Per Ogundare, J.S.C. READ IN CONTEXT

B. LABOUR LAW

4. Master and Servant Relationship–on the right of resignation of an employee

The resignation need not to have been formally accepted by the respondents before taking effect T.O.S. Benson v. A. Onitiri (1960) 5 FSC 69, (1960) SCNLR 177, where the facts are not too dissimilar with the facts of the present case as regards the issue of resignation from an appointment. In Benson v. Onitiri, Ademola, CJF (as he then was) said at page 82 of the report:

“There is absolute power to resign and no discretion to refuse to accept notice. In the present case, I do not think it matters to whom the notice of resignation was addressed, whether to the Minister who made the appointment or to the board, on which Benson was serving.”

Later, in his judgment, to which Abbot, FJ and Brett, FJ concurred, the learned Chief Justice of the Federation added –

“I am of the view that a notice of resignation to either is good, nor do I think it necessary for the board or anybody else to reply that the resignation is accepted.”. Per Ogundare, J.S.C. READ IN CONTEXT

 


OGUNDARE, J.S.C. (Delivering the Leading Judgment):


This appeal raises again the vexed question of locus standi, or standing to sue in an action.

The plaintiff, who is now appellant in this appeal, had sued the defendants/respondents claiming-

“1. A declaration that the 1st defendant has no lawful authority or power to dissolve the Governing Council of the Edo State University Ekpoma, under the law establishing the University or under any other law whatsoever.

2. A declaration that the purported dissolution of the Governing Council of the Edo State University of which plaintiff is Pro-Chancellor and Chairman by the 1st defendant as per his letter reference No. MGPAO/Vol.III/128 of 2nd July. 1992 addressed to the plaintiff is ultra vires, null and void and of no effect whatsoever.

3. An injunction restraining the defendants jointly and/or severally by themselves or through their agents, servants or privies from reconstituting, recognising or having any dealing whatsoever with any Governing Council of the Edo State University except that of which plaintiff is Pro-Chancellor and Chairman, until the expiration of his four year term of office or until removed from office in accordance with the provisions of the Edo State University Law 1991.”

He filed along with his writ a motion ex parte praying for an interim injunction “restraining the 1st defendant or the Edo State Government or the 3rd defendant, by themselves, their servants, agents and/or privies from appointing, recognising or otherwise having any dealings with any Governing Council of the Edo State University other than that chaired or headed by the plaintiff/applicant pending the hearing and determination of the motion on notice filed by the plaintiff/applicant in this suit for an order of interlocutory injunction against the defendants herein.” There was filed along also a motion on notice for an interlocutory injunction substantially along the prayer sought in the ex parte motion. To the affidavits in support of each motion was exhibited, among other documents, a letter (Exhibit A/D) dated 2nd July 1992 written by the appellant to the 1st respondent. Because of the importance of this letter to the issue raised in this appeal, I shall reproduce it in extenso at this stage. The letter reads:

“My dear Governor,

EDO STATE UNIVERSITY

RESIGNATION OF APPOINTMENT AS PRO-CHANCELLOR AND CHAIRMAN OF THE GOVERNING COUNCIL

I wish to refer to the discussions which Your Excellency and the Deputy Governor held with me on Tuesday, 30th June, 1992, during which you informed me of your intention to reconstitute the membership of the Governing Council of Edo State University, essentially because of political pressures from within the SDP. I advised, and still do so advise, that it would not be wise to politicise appointments to the University, particularly when for good traditional reasons, the relevant law took pains to insulate the institution from political and other sectional interests. Under that law each member (except ex officio) of Council, is appointed for a definite term of four years, and can only be removed on clearly defined grounds, after due process.

2. However, I accept on my part to resign, but I hinted that I would wish to consult other members of the Council. Your Excellency agreed. But last night, the Deputy Governor telephoned ostensibly to hasten my resignation because of the said political pressures.

3. Since I have no intention to embarrass you or the Government in this or any other matter, I have the honour hereby to tender my resignation as Pro-Chancellor and Chairman of the governing Council of Edo State University. The law requires me to give six months notice of such resignation; but Your Excellency indicated that you would waive the requirement and I hereby so request.

Yours very sincerely

(sgd)

Professor T. M. Yesufu”

(italics are mine)

The ex parte motion was denied by the learned trial Judge who ordered an accelerated hearing of the motion on notice. Meanwhile however, the appellant filed his statement of claim in which he pleaded, inter alia, as follows:

“5. The plaintiff avers that by letter dated 27th December, 1991 from the Secretary to the Edo State Government the plaintiff was appointed Chairman of the Governing Council of the University, which appointment he was to hold for a period of 4 years from the date of appointment as provided in paragraph 2 of the First Schedule to the Edo State University Law of 1991. The said letter shall be founded upon at the trial.

6. The plaintiff avers that as Pro-Chancellor and Chairman of the Governing Council of the University, he can only be removed from office or resign from that office in accordance with the provisions of paragraph 2(3) and paragraph 7(1)(a) of the First Schedule to the Edo State University Law 1991. This said law shall be relied upon at the trial.

7. The plaintiff avers that there is no provision in the said law for the dissolution of the Governing Council of the Edo State University which is in fact the embodiment of the University and 1st defendant and the other defendants have no power whatsoever to dissolve or reconstitute the Council.

8. The plaintiff avers that on the 28th of June, 1992 1st defendant in the presence of the Deputy Governor of the Edo State at the Government House in Benin City told him of his intention to dissolve the Governing Council of the University on grounds of political pressure and the plaintiff advised the 1st defendant against such move as it was beyond his power and as the Council is made up of various bodies within and outside the University and supposed to be completely insulated from politics.

9. The plaintiff avers that following the discussions aforesaid and subsequent pressures on him on telephone, he wrote a letter dated 2nd July, 1992 to the 1st defendant offering to resign as Chairman of Council subject to compliance with the provisions of the Law with regard to resignation from the Council. The said letter of the 2nd July, 1992 shall be relied upon at the trial”

XXXXXXXXXXXXXXXX

22. WHEREOF plaintiff claims as follows:-

(1) A declaration that 1st defendant as Governor of Edo State and/or Visitor to the Edo State University has no lawful authority or power to dissolve or reconstitute the Governing Council of the Edo State University, Ekpoma under the law establishing the University or under any other law whatsoever.

(2) A declaration that the purported dissolution of the Governing Council of the Edo State University of which plaintiff is Pro-Chancellor and Chairman by the 1st defendant per his letter reference No. MGP.4O/Vol.III/128 of 2nd July 1992 addressed to the plaintiff is ultra vires, null and void and of no effect whatsoever.”

(3) A declaration that the Governing Council of the Edo State University of which plaintiff is Chairman and Pro-Chancellor is still subsisting and the only legitimate and lawful Governing Council of the Edo State University notwithstanding the purported dissolution thereof by the 1st defendant.

(4) An injunction restraining the defendant, jointly and/or severally by themselves, their servants, agents or privies from constituting, reconstituting, recognising, or having any dealings whatsoever with, any Governing Council of the Edo State University except that of which plaintiff is Pro-Chancellor and Chairman, until the expiration of plaintiff’s four-year term of office or until the present members of the Council resign or are removed from office in accordance with the provisions of the Edo State University.”

On being served with both the motion on notice and the statement of claim, the respondents filed, by way of motion on notice, a notice of preliminary objection to both the motion and the action to the effect –

“1. That the plaintiff/respondent in this matter has no locus standi to institute this action.

2. That the whole action is incompetent and should be struck out.”

The motion was vigorously argued by both sides and, in a reserved ruling, the learned trial Judge observed:

“Having held that the plaintiff has not shown the personal interest he seeks to protect or any direct injury or likely danger to himself which he is seeking to avert by instituting this action personally, and having held that he has not brought the action in a representative capacity, I come to the conclusion that he has no locus standi to institute this action as he has done, and that the action is therefore, incompetent.”

and consequently struck out both the motion on notice and the statement of claim and dismissed the action itself.

The appellant appealed unsuccessfully to the Court of Appeal (Benin Division) which, in a dismissing the appeal to it, however, varied the order of dismissal of the action to one striking out the action.

The appellant, being still dissatisfied, has now further appealed to this court upon two grounds of appeal. Pursuant to the rules of this court, briefs of argument were filed and exchanged. In the appellant’s brief the lone issue formulated for determination reads:

“Whether the court below was right in holding that the appellant lacked locus standi on the ground that the appellant was estopped from complaining about the dissolution of the Edo State University Governing Council by 1st respondent.”

In the briefs of the 1st and 2nd respondents and 3rd respondent respectively, three issues are formulated, to wit:

“1. Whether Exh. D amounted to resignation and if so whether it thereby extinguished the interest upon which the appellant could have based his standing to sue in this case.

2. Whether the facts disclosed in the affidavits before the High Court are not sufficient for the Court of Appeal to uphold the decision of that court that the appellant lacked standing to sue in this case without reference to the statement of claim.

3. Whether a court of law and equity is precluded from invoking the doctrine of equitable estoppel where it was not pleaded by either of the parties to a suit.”

I think the appellant’s only issue is adequate enough to determine this appeal. I adopt it.

This is a convenient stage to state the facts. The appellant was by a letter dated 27th December 1991 appointed the Pro-Chancellor and Chairman of the Governing Council of the Edo State University, Ekpoma (now Ambrose Alli University); the appointment was for 4 years. On 30th June 1992, at a discussion between the appellant and the Governor of the State, the latter expressed his intention to dissolve and reconstitute the Governing Council of the University as a result of political pressures on him. The appellant advised that the affairs of the University be kept away from politics but the Governor appeared to have made up his mind to dissolve and reconstitute the Council. The Governor was, however, reluctant to dissolve the Council with the appellant as Pro-Chancellor, he, therefore, advised the appellant to resign his (appellant’s) appointment before the dissolution. On 2nd July 1992 the appellant wrote a letter to the Governor resigning his appointment and requesting the Governor to waive the notice he ought to have given. I have already reproduced the letter in the earlier part of this judgment. On the same day that the appellant wrote his letter of resignation, the Governor wrote to the former conveying to him the dissolution of the Governing Council of the University. On the 8th July 1992, the appellant issued his writ.

The question that arises in this appeal is this: will the appellant have standing to sue the Governor and the other defendants for the dissolution of the Council when he had ceased to be its chairman by his letter of resignation, Exhibit A or D? But before going into the question I want to comment briefly on the attack on the judgment appealed against on the ground that the court below suo motu took the issue of estoppel and made it the basis of its decision when the issue was not placed before it by the parties. It is argued in the appellant’s brief thus:

“In our respectful submission the learned JCA was in grave error in formulating an entirely new issue in the appeal before them and on his resolution of that issue alone came to the conclusion that appellant had no locus standi. In adopting that approach the court below fell into two fundamental errors:

(a) equating locus standi with estoppel which did not arise from any of the grounds of appeal filed by appellant.

(b) resolving contentious issues in his interlocutory application on the basis of affidavit evidence only and without reference to the statement of claim.

It is our respectful submission that the factors for determining locus standi are not the same as those for determining estoppel. As learned JCA himself rightly held in Faponle v. U.I.T.H. (1991) 4 NWLR (Pt.183) 43 at 54 – 55 which he quoted in extenso at p.150 of the record:

‘Estoppel by conduct is a rule of evidence … being a rule of evidence therefore to be on the safe side, it must be pleaded and evidence must be led on it by the person relying on it.’ In other words estoppel cannot be raised as a preliminary objection to the institution of an action. It can only be raised as a defence to an action properly brought before the court. To argue that a person is estopped from making a claim in court there is a presumption that the action is properly before the court i.e .., that the action is properly constituted in all respects. Estoppel is only a defence put forward by the defendant(s) in their pleadings in the case and can only be established by evidence.

On the other hand the issue of locus standi goes to the competence or standing of the plaintiff to institute the action at all. Locus standi is the legal capacity of plaintiff/claimant to institute an action in a court of law in exercise of his right under section 6(6)(b) of the Constitution of the Federal Republic of Nigeria, 1979. That is why it can be raised in limine after the statement of claim has been filed and served. If the plaintiff’s statement of claim discloses no personal interest in the claim put forward by him he will have no locus standi to institute the action and the court will have no jurisdiction to entertain same. Adesanya v. President (1981) 2 NCLR 358, (1981) 5 SC 112; Fawehimni v. Akilu & Anor. (1987) 4 NWLR (Pt.67) 797 and Thomas v. Olufosile (sic) (1986) 1 NWLR (Pt. 18) 669. Consequently while estoppel is a rule of evidence, locus standi affects capacity to sue.

It is therefore our respectful submission that the lower court was in grave error when they decided the appeal before them on the basis of estoppel. Moreover estoppel was not one of the two issues distilled from the grounds of appeal before the lower court and the court should not have given it any consideration much less basing its decision thereon.”(back to top?)

The 1st and 2nd respondents, in their joint brief, made no answer to the submissions. The 3rd respondent, in its own brief made a rather timid answer. It is argued thus:

“The appellant contends in his brief that the Court of Appeal fell into error for ‘equating locus standi with estoppel which did not arise from any of the grounds of appeal filed by the appellant.’ By that, he is contending that estoppel could not be invoked by a Judge unless it formed part of the grounds of appeal.

Sirs, the fallacy in the appellant’s conception of estoppel is that he assumes that the rules of procedure which govern litigant’s reliance on the equitable defence of estoppel also restrict the application of the rules of equity by the courts. This conception of the law is erroneous.

It is humbly submitted that the doctrine of equitable or promissory estoppel is a rule of substantive law which all courts of law and equity are enjoined to apply – and indeed, a duty to apply – as was done in this case by the Court of Appeal. We respectfully refer to Order 3, rule 2(6) of the Court of Appeal Rules 1981 (as amended).”

Appellant’s contention is not that the court below had no power to apply the doctrines of equity in appeals before it but that in the present matter the issue in dispute was locus standi and not estoppel.

I think the criticism of the appellant on the lead judgment of the court below, per Ogundere, JCA with which Akpabio and Ige, JJCA agreed, is well taken. Ogundere, JCA devoted a considerable length of his judgment to estoppel by conduct which was not the issue placed before the court. Although at the end he related estoppel to locus standi, I think it was a most unnecessary exercise. The learned Justice of Appeal, after all the rambling on estoppel by conduct, came back to the real issue before it, that is, locus standi and concluded that the appellant had no locus standi to institute his action. The error committed by the court below has, therefore, not resulted in a miscarriage of justice. I will therefore say no more on it.

Coming back to the question of the locus standi of the appellant, the answer lies in the interpretation to be given to the letter the appellant wrote to the Governor on 2nd July 1992. Mr. Obaro, learned counsel for the appellant rightly conceded that the trial court was right in looking into this letter. The letter was pleaded by the appellant and it was he who tendered it at the hearing of the interlocutory proceedings before the court. The main contention of the appellant is that the letter was an offer to resign which took no effect until the legal procedures for effecting his resignation were complied with. It is also contended that by the 1st respondent’s letter dissolving the Council, his offer to resign was aborted.

The respondents, for their part, contend that the appellant’s letter of 2nd July, 1992 was a resignation and not just an offer to resign. They further contend that the appellant having resigned his appointment lacked locus standi to challenge the dissolution of the Council.

Having regard to the contents of appellant’s letter of 2nd July 1992, particularly the portion of it italicized by me in this judgment, the appellant, by that letter, effectively resigned his appointment as Pro-Chancellor and Chairman of Council of Edo State University. He also by that letter requested for a waiver of the notice he should have given. It does not lie in his mouth to say that he had no reply from the 1st respondent on his request for waiver of notice. The requirement of notice was not for his benefit but that of the respondents. I think the two courts below were right in finding that appellant resigned his appointment. The resignation need not to have been formally accepted by the respondents before taking effect T.O.S. Benson v. A. Onitiri (1960) 5 FSC 69, (1960) SCNLR 177, where the facts are not too dissimilar with the facts of the present case as regards the issue of resignation from an appointment. In Benson v. Onitiri, Ademola, CJF (as he then was) said at page 82 of the report:

“There is absolute power to resign and no discretion to refuse to accept notice. In the present case, I do not think it matters to whom the notice of resignation was addressed, whether to the Minister who made the appointment or to the board, on which Benson was serving.”

Later, in his judgment, to which Abbot, FJ and Brett, FJ concurred, the learned Chief Justice of the Federation added –

“I am of the view that a notice of resignation to either is good, nor do I think it necessary for the board or anybody else to reply that the resignation is accepted.” (back to top?)

The question of what gives a plaintiff the standing to sue or locus standi has been the subject of a number of judicial decisions See Momoh v. Olotu (1970) 1 All NLR 117; Adesanya v. The President (1981) 2 NCLR 358, (1981) 5 SC 112;Adefulu v. Oyesile (1989) 5 NWLR (PU22) 377; Owodunni v. Registered Trustees of CCC (2000) 10 NWLR (Pt.675) 315. It would appear from the welter of authorities on locus standi that a plaintiff, to enable him invoke the judicial power of the court, must show sufficient interest or threat of injury he would suffer. In the case on hand, I do not know what legal interest the appellant would have in the continued existence of the Governing Council from whose chairmanship he had resigned; nor the threat of injury he would suffer. I think the two courts below were right in holding that he had no locus standi to sue for the dissolution of the Governing Council after he had resigned from that body. (back to top?)

Consequently, I must hold that this appeal is bereft of any merit.

I dismiss it accordingly with N 10,000.00 (ten thousand Naira) costs to each set of respondents.

OGWUEGBU, J.S.C.: I have read before now the judgment just delivered by my learned brother Ogundare, JSC. I entirely agree that the appeal should be dismissed.

The plaintiff was the Pro-Chancellor and Chairman of the Governing Council of Edo State University, Ekpoma now called Ambrose Alli University. He instituted the action leading to this appeal claiming that the Governor of Edo State and Visitor of the said University has no lawful authority or power to dissolve the Governing Council of Edo State University under the law establishing the institution or under any other law whatsoever, a declaration that the purported dissolution of the Council of which the plaintiff is the Chairman by the 1st defendant in his letter dated 2nd July, 1992 addressed to the plaintiff is ultra vires, null and void and an injunction restraining the defendants jointly and severally from reconstituting, recognizing or having any dealing with any Governing Council of Edo State University except that which he is the Pro-Chancellor and Chairman until the expiration of his four year term of office.

A motion ex-parte was filed along with the writ of summons praying for an order of interim injunction pending the hearing of the motion on notice filed by the plaintiff. The plaintiff’s letter to the Governor dated 2nd July, 1992 and marked Exhibits “A”/”D” was annexed to the plaintiff’s affidavit in support of his motion for interlocutory injunction. The letter is material to the case and is reproduced in full hereunder:-

“Date: 2nd July, 1992.

His Excellency

Chief (Dr.) John Odigie-Oyegun

The Governor

Edo State of Nigeria

Benin City.

My dear Governor,

EDO STATE UNIVERSITY

RESIGNATION OF APPOINTMENT AS PRO-CHANCELALOR AND CHAIRMAN OF THE GOVERNING COUNCIL

I wish to refer to the discussions which Your Excellency and the Deputy Governor had with me on Tuesday, 30th June, 1992, during which you informed me of your intention to reconstitute the membership of the Governing Council of Edo State University, essentially because of political pressures from within the SDP. I advised, and still do so advise, that it would not be wise to politicise appointments to the University, particularly when for good traditional reasons, the relevant law took pains to insulate the institution from political and other sectional interests. Under that law each member (except ex-officio) of Council, is appointed for a definite term of four years, and can only be removed on clearly defined grounds, after due process.

2. However, I accept on my part to resign, but I hinted that I would wish to consult other members of the Council. Your Excellency agreed. But last night, the Deputy Governor telephoned ostensibly to hasten my resignation because of the said political pressures.

3. Since I have no intention to embarrass you or the Government in this or any other matter, I have the honour hereby to tender my resignation as Pro-Chancellor and Chairman of the governing Council of Edo State University. The law requires me to give six months notice of such resignation; but You Excellency indicated that you would waive the requirement and I hereby so request.

Yours very sincerely

(sgd)

Professor T. M. Yesufu”

By a letter dated the same 2nd July, 1992, the Governor wrote to the plaintiff dissolving the University Council with effect from the same date.

Both the trial court and the Court of Appeal held that the plaintiff had no locus standi to bring the action. He has further appealed to this court against the decision of the Court of Appeal. The last paragraph of the plaintiff’s letter (Exhibit “D”) did not leave any one in doubt that the resignation was complete and effective and the Governor of Edo State had no discretion to refuse to accept it in the circumstances of this case. There was no obligation on the Governor to reply that the resignation was accepted. See Benson v. Onitiri (1960) 5 FSC 69, (1960) SCNLR 177. As to the requirement of six months notice of his resignation, the Governor assured the plaintiff that he would waive it. It was no longer a condition since the Governor alone would complain that the plaintiff did not give the necessary notice and he has not complained. So there was no condition attached to the letter of resignation.

The platform from which the plaintiff could have initiated these proceedings having disappeared as a result of his resignation, can it be said that he still has the standing or the legal capacity to institute this action? The civil rights and obligations of the plaintiff which would be violated or adversely affected by the dissolution of the Council are his rights and obligations qua Pro-Chancellor and Chairman of Governing Council of the University. He no longer held the positions at the time he instituted the action by virtue of his resignation. The plaintiff therefore lost the legal basis to challenge the dissolution and reconstitution of the Governing Council of the institution. He has not shown sufficient justiciable interest or injury to maintain the action. See Adesanya v. The President of the Federal Republic of Nigeria & Ors. (1981) 2 NCLR 358, (1981) 1-5 SC 112; Mamah & Or. v. Olotu (1970) 1 All NLR 117 and Owodunni v. Registered Trustees of Celestial Church of Christ (2000) 10 NWLR (Pt.675) 315.

In view of the above decisions, it is impossible to see how the plaintiff could prosecute this claim in view of the averments in his statement of claim and Exhibit “D”.

I am therefore in no doubt that the plaintiff has no locus standi to institute these proceedings and I agree totally with the reasons for dismissing this appeal set out in the judgment of my learned brother Ogundare, JSC. I would also dismiss the appeal and I hereby dismiss it with costs to the respondents as assessed in the judgment of Ogundare, JSC.

ONU, J.S.C.: I had a preview of the judgment of my learned brother Ogundare, JSC just delivered and I agree with his reasoning and conclusion that the appeal be and is hereby dismissed. I have nothing further to add thereto other than to adopt the same as mine including the order for costs therein made.

KALGO, J.S.C.: I have had the privilege of reading in advance the judgment just delivered by my learned brother, Ogundare JSC in this appeal. I entirely agree with his reasoning and conclusion to the effect that there is no merit in the appeal and it ought to be dismissed.

The main issue for consideration in this appeal is the question of locus standi of the plaintiff/appellant to sue based on the proper interpretation of the letter he wrote to the 1st defendant/respondent on the 2nd of July, 1992. That letter was referred to as Exhibit’ A’ in the affidavit of the plaintiff/appellant filed in support of the motion on notice praying the trial court to issue interlocutory injunction restraining the 1st and 3rd defendants/respondents. or their agents from appointing or recognising any Governing Council of the Edo State University other than the one chaired by the plaintiff/appellant pending the determination of his suit. The learned trial Judge referred to this letter as Exhibit D throughout his ruling.

Exhibit D was copied on page 7 and on pages 63-64 of the record. It was addressed to the 1st defendant/respondent by the appellant himself and was dated 2nd July 1992. The relevant part of Exhibit D reads:-

“3. Since I have no intention to embarrass you or the Government in this or any other matter, I have the honour hereby to tender my resignation as Pro-Chancellor and Chairman of the Governing Council of Edo State University. The law requires me to give six months notice of such resignation, but Your Excellency indicated that you would waive the requirement and I hereby so request ” (Italics mine)

By this letter, it is very clear to me that the appellant has resigned his appointment as Pro-Chancellor of the Edo State University as soon as he signed the letter and it took effect as soon as the 1st defendant/respondent received it. And when the appellant in the letter said “Your Excellency indicated that you would waive the requirements,” it is very clear that the matter of waiver was discussed earlier between the appellant and the 1st defendant/respondent. And when the appellant said in the letter that “I hereby so request” he was thereby complying with the agreement by the 1st respondent as visitor to waive the required six months notice once he (appellant) agreed to resign. There was therefore no need for the 1st defendant/respondent to write a formal letter accepting the resignation of the appellant. It is also incorrect in my view, to say that the 1st defendant/respondent in his letter dissolving the Edo State University Council (Exhibit B but referred to by trial Judge as Exhibit E) must indicate his acceptance of the resignation of the appellant, because they are two separate acts under the relevant University Law. Therefore since the 1st defendant/respondent agreed to waive the six months required notice for the appellant’s resignation, he was presumed to have accepted the resignation just before the dissolution of the University Council. It is also trite law that in the circumstances of this case, the resignation need not be formally accepted before it took effect. See Benson v. Onitiri (1960) 5 FSC 69, (1960) SCNLR 177. I am therefore satisfied that the appellant having resigned from his position as Pro-Chancellor and Chairman of Council of Edo State University with effect from 2nd July 1992, has no interest to protect in that position and has no business to sue the respondents as he did in the trial court. He has no standing or right to sue in this case and has no cause of action.

I therefore agree with the Court of Appeal affirming the decision of the trial court that the appellant lacked the locus standi to sue the respondents in this case. For the above and more detailed reasons given by Ogundare, JSC in the leading judgment, I agree that there is no merit in this appeal. I accordingly dismiss it with N10,000.00 costs in favour of the respondents.

UWAIFO, J.S.C.: I read in advance the judgment of my learned brother Ogundare, JSC with which I am in agreement for the reasons he has given.

The letter of resignation of the appellant ended in part as follows:-

” …. I have the honour hereby to tender my resignation as Pro-Chancellor and Chairman of the Governing Council of Edo State University. The law requires me to give six months notice of such resignation; but Your Excellency indicated that you would waive the requirement and I hereby so request.”

Learned counsel for the appellant in his oral argument before us said that there was no evidence of the waiver by the Governor to whom the letter was addressed and therefore that the resignation did not take effect. I cannot contemplate that what the appellant needed, even from the tone of that passage from his letter of resignation, was a formal evidence of waiver. What he said was to put on record that the Governor had indicated he would dispense with the requirement of six months’ notice which the appellant would normally have been expected to give. He then requested the Governor to do so. In other words, this was nothing other than a parting reminder to the Governor by the appellant that as he was going away following his resignation, the Governor should ensure that the dispensation of the six months’ notice to which he had agreed stood.

As it turned out the Governor did not again raise that matter of notice. He could not have done so having indicated that he would not, thereby allowing the appellant to resign short of the normal procedure. Besides, the notice is for the benefit of the respondents so that under no circumstances can the appellant argue that for his resignation to be effective depended on the waiver being formally communicated to him. That will be less than a comical standpoint. I have no doubt in my mind that the resignation as stated in his letter to the Governor took immediate and valid effect the moment it was handed in. The dissolution of the Governing Council of the University thereafter did not affect him. He had ceased to be a member.

I too come to the conclusion that the appellant had no interest to protect or nothing to fear when he took action. He lacked locus standi. I hold that the appeal lacks merit and accordingly I dismiss it with N10,000.00 costs to each set of respondents.

Appeal dismissed.

 

Appearances

 

Chief S. S. Obaro – for the Appellant For the Appelants

 

B. O. Kalu (Mrs.) Director of Civil Litigation, Ministry of Justice, Edo State – for the 1st and 2nd Respondents.

Professor A. Emiola (with him, 1. Nwabudike, Esq. and Dr. S. A. Aiboni) – for the 3rd Respondent. For the Respondents

Salawu Ajao v. Karimu Ashiru & Ors

CITATION: (1973) LPELR-SC.277/1973

 

OTHER CITATIONS:

1 (1973) All N.L.R 708

2 Ajao v. Ashiru (1973) 11 S.C. 17

 

 

In The Supreme Court of Nigeria

On Friday, the 16th day of November, 1973

Suit No: SC.277/1973

 

Before Their Lordships

 

TASLIM OLAWALE ELIAS ……. Justice of the Supreme Court

GEORGE SODEINDE SOWEMIMO ……. Justice of the Supreme Court

AYO GABRIEL IRIKEFE ……. Justice of the Supreme Court

 

 

Between

Salawu Ajao Appellants

 

 

And

Karimu Ashiru & Ors Respondents

 

 

 

RATIO DECIDENDI

 

1 ADMINISTRATIVE LAW – ARBITRARY POWERS: Position of the court on person assuming arbitrary powers even where if the other is in breach of the law

“We are of the view that, even if the police had been shown to have removed the mill at the defendants’ instance, the defendants would nevertheless have been liable for the wrongful seizure of the mill, since they would then have set in motion a ministerial act as distinct from a judicial one: Hopkins v. Crowe 111 English Reports, p. 974, at p. 975. It cannot be over-emphasized to both high and low that every person resident in this country has a right to go about his or her lawful business unmolested or unhampered by anyone else, be it a Government functionary or a private individual. The courts will frown upon any manifestation of arbitrary power assumed by anyone over the life or the property of another even if that other is suspected of having breached some law or regulation……” Per ELIAS. C.J.N. (Pp. 17-18, paras. G-D) – read in context

 

 

2 COURT – DUTY OF COURT: Whether the courts have a duty to tell parties how to conduct their case

“It is not for the court to tell counsel what witnesses to call in a civil matter: Kofi Gbajor v. James Oguntimehin (1961) All N.L.R. 853, at 856. We are also of the opinion that it is not for the magistrate or judge to speculate as to the contents of a document. Enekebe v. Enekebe (1964) 1 All N .L.R. 102, at p. 109.” Per ELIAS. C.J.N. (Pp. 15-16, G-A) – read in context

 

 

 

 

T. O. ELIAS, C.J.N. (Delivering the Leading Judgment): In Suit No. MI/559/69 in the Chief Magistrate’s Court, Ibadan, the plaintiff’s claim is as follows:

“The plaintiffs claim against the defendants jointly and severally is the sum of 350 (Three Hundred and Fifty pounds);

(a) The sum of 100 (one hundred pounds) being general damages for trespass committed by the defendants when the defendants with their servants/agents unlawfully and wrongfully entered into the plaintiffs Pepper Mill workshop situate lying and being at Bode, Ibadan in 30th August, 1969 and caused the said plaintiff’s Pepper Mill to be removed away.

(b) The sum of 250 (Two Hundred and Fifty pounds) being Special and general Damages for the unlawful seizure of the plaintiff’s Pepper Mill at Bode, Ibadan by wrongfully taking and detaining the said pepper mill from 30th August, 1969 till Sunday 14th, December 1969 whereby the plaintiff was deprived of the use of the said pepper mill which was the means of his livelihood and thereby suffered damage.”

PARTICULARS OF SPECIAL DAMAGES

Loss of use of Pepper Mill for 107 working days at the rate of 2 per day ……..214

General Damages ..36

Total ……………250.

The plaintiff gave evidence and called three witnesses, the first of whom was his employee, the second a friend of the employee present in the shop when the defendants went there to remove the mill, and the third was the policeman to whom a complaint of the incident was made. The employee reported the incident at Bode to the plaintiff, describing how the pepper mill was removed together with the sum of 5/6d, his takings so far that morning. The second plaintiff witness gave an eye-witness account of what he saw, confirming the first plaintiff witness’s story. The second defendant, who gave evidence on his own behalf and on that of the other defendants, denied having removed the pepper mill and asserted that a police constable (whom he called as his only witness) followed him and the first plaintiff witness to Bode and removed the mill. The second defendant alleged that one Suberu Ajao who brought a new mill to Bode, had been challenged on the ground that he was not a member of the local trade union. The plaintiff tendered his trade union card (Exhibit B), while the Irepodun Pepper Grinders Association (of which the second defendant was President and others were members) in control of the Bode area tendered its own card (Exhibit C). The source of the trouble appears to have been that the defendants were resisting the plaintiff establishing within their ward. Thereupon, the learned Chief Magistrate applied section 8 of the Trade Unions Act, Cap. 200, Laws of Nigeria to what he found to be “a trade dispute between the defendants and the plaintiff.” Section 8 reads: “An action against a trade union, whether of workmen or masters, or against any members or officials thereof on behalf of themselves and all other members of the trade Union in respect of any tortious act alleged to have been committed by or on behalf of the trade union in contemplation of or in furtherance of a trade dispute, shall not be entertained in any court. ” In dismissing the plaintiffs claim, the learned Chief Magistrate said:

“In the circumstance, I find that this claim must fail for one of two reasons. One, because the police and not the defendants removed the mill and I find this as a fact believing the evidence of the defendants. Two, because the action is prohibited in law. I must remark that I disbelieve the evidence of the plaintiff and his witnesses but I believe the evidence of the defendant and his witnesses. The claim is therefore dismissed with 12.12s costs to the defendants.” Against this decision, the plaintiff appealed to the High Court, Ibadan, on the following ten grounds:

“1. The learned trial Chief Magistrate erred in law and misdirected himself when he held that there was a trade dispute between the defendants and the plaintiff when the claim before him does not relate to trade dispute and he thereby came to a wrong decision.

2. The learned trial Chief Magistrate erred in law and misdirected himself by holding that the claim must fail because “the police and not the defendants removed the mill” when it was satisfactorily proved that the defendants and not the police removed the mill and in view of failure of the defendants to prove that the police removed the mill and he thereby came to a wrong conclusion.

3. The learned trial Chief Magistrate erred in law in relying on Exhibit “D” as proof that the police and not the defendants removed the mill.

4. The learned trial Chief Magistrate erred in law in deciding the case on a point which was neither raised nor argued before him and the parties were not given opportunity of addressing him on the point.

5. The learned trial Chief Magistrate erred in law in holding that the action is prohibited by law when the action does not relate to a trade dispute within the meaning of Section 8 of Trade Union Act.

6. The learned trial Chief Magistrate erred in law in dismissing the plaintiff’s claim having held that he had no jurisdiction to entertain the action.

7. The learned trial Chief Magistrate erred in law by failing to consider whether or not the defendants had a right to remove the plaintiff’s mill not being a member of the defendants’ association and he thereby came to a wrong decision.

8. The learned trial Chief Magistrate erred in law in assuming that the provisions of Trade Union Act apply when it was not proved that the plaintiff and the defendants are trade union within the meaning of Trade Union Act.

9. The defendants having been sued in their personal private capacity and not have claimed to have acted on behalf of the Trade Union are not covered by Section 8 of Trade Union Act and the learned trial Chief Magistrate accordingly erred in holding that the action is not maintainable.

10. The decision cannot be supported having regard to the weight of evidence. ”

At the hearing, the learned judge asked learned counsel for the respondents whether he supported the judgment appealed from and, when the latter said he did not, he held that on the basis of Grounds 1, 4, 5 and 8 the judgment could not stand, since in the present case there was no ‘trade dispute’, in the sense of “a dispute between employers and workmen or between workmen and workmen which is connected with the employment, or nonemployment or the terms of employment, or with the conditions of labour, of any person.” Because of its relevance to the later stages of this case, the following passage from the judgment must be quoted here:

“Furthermore, it was the learned Chief Magistrate who took this point himself. It was not canvassed by either of the parties; if a point not taken by either of the parties is to be taken by a court in deciding a case, the parties must be given an opportunity of being heard on the point. To the extent that the learned Chief Magistrate failed to do this, he was in error. On the evidence before the learned Chief Magistrate, if he had not misdirected himself as he did, he should have had no difficulty in finding the plaintiff’s case proved. The most liberal consideration of the evidence in favour of the respondents, is that they did not remove the mill by themselves but that the mill was removed by the Police. Assuming that was so, they should be liable for putting the police in motion. This action however is referable only to the second leg of the claim. On the first leg, the trespass was amply proved.

It does not also appear that there was any dispute as to the date the mill eventually came back to the plaintiff and as to the loss of earnings.

The appeal is therefore allowed. Judgment of the lower court is hereby set aside together with the costs awarded thereunder. In its place, thereby enter judgment for the plaintiff and award him damages as follows:

On the first leg of his claim, 30(pounds), on the second leg 214 loss of earnings for 107 days at 2 per day. Claim for general damages under that leg is refused. The plaintiff is entitled to costs.”

From this judgment, the defendants/respondents appealed to the Western State Court of Appeal on the following grounds.:

“1. The learned judge erred in law in holding that the defendants/respondents/appellants put the police in motion to remove the mill of the plaintiff/respondent to police station and therefore responsible for the loss of use claimed under special damages whilst he has observed that the defendants/respondents/appellants did not remove the mill themselves but that the mill was removed by the police.

2. The learned judge erred in law in awarding against the defendants/ respondents/ appellants the sum of 214 pounds special damages which were not strictly proved.

3. The learned judge erred in law in holding that trespass was amply proved and in awarding 30 pounds general damages for trespass whilst there was sufficient evidence that the plaintiff and defendants were members of the same Union and therefore the defendants entered the plaintiffs workshop with a common interest and purpose.

4. The learned judge erred in law in holding that the Magistrate was in error to take into consideration, on his own, a point of law which was not canvassed or heard upon by either of the parties.

5. The judgment is against the weight of evidence. ”

After hearing arguments by counsel, that Court pointed out:

“It should be noted that what Mr. Adejumo said was that he did not support the judgment on one of the two grounds upon which the learned Chief Magistrate based his judgment, and not that he did not support the judgment at all. Nevertheless, the learned Judge, without taking submissions or listening to arguments on the second ground upon which the Chief Magistrate’s judgment was based and indeed without calling upon Mr. Agbaje, the learned counsel for the appellants, for any address or submissions whatsoever, proceeded to deliver judgment.”

“In our view and with respect to the learned Judge, submissions of learned counsel ought to have been taken in respect of the other grounds of appeal relating to the second leg on which the learned Chief Magistrate based his judgment.”

The Justices observes further:

“In the view that we have taken on this appeal we shall only content ourselves with ground 5 of the grounds of appeal which states:

‘That the judgment is against the weight of evidence. In our view, and with respect to both the learned Chief Magistrate and to the learned Judge, it would seem that both of them were in error in not evaluating the evidence-conflicting and divergent evidence-before coming to conclusions of fact. For instance the plaintiff who claimed the mill by this action is Salawu Ajao but, it would seem from the defendants story that one Suberu Ajao also claimed to have been in charge of the mill. He was said to have made a statement to the police. This conflict was not resolved. It goes to the root of the whole case.

Again, there is the divergent evidence of how the mill got to the police station. No finding was made on this important point. This again goes to the root of the whole case. Trespass can only be against the defendants if the plaintiff’s story is found to be true. There is also the fact that some witnesses who ought to have been called were not called on both sides. Some statements that ought to have been tendered were not tendered. No reasons were given for all these omissions. It is not known what effect all these omissions had, or on a proper direction, would have had on the learned Chief Magistrate or on the learned Judge. All we have is that the defendants were believed on one occasion and “the trespass was amply proved” on the other occasion. No reasons were given for these conclusions of fact-no findings were made-for these conclusions of fact do not seem to be based on any evaluation of the evidence as a whole.

We can go on pointing out instances of conflicting and divergent evidence upon which no evaluation of the evidence was made, and no findings of fact were made but only conclusions of fact were recorded. ”

The Justices concluded as follows:

“Finally, we are of the view that specific findings should have been made, but were not made, on four questions as follows:

“Whether or not the defendants with their servants or agents unlawfully and wrongfully entered into the plaintiff’s Pepper Mill workshop situate lying and being at Bode, Then on the 30th August, 1969 and caused the said plaintiff’s Pepper Mill to be removed away.”

“Whether or not the defendant unlawfully seized the plaintiff’s said Pepper Mill by wrongfully taking and detaining the same from 30th August, 1969 to 14th December, 1969.”

and if so (3) Whether or not the plaintiff suffered damages as a result of such seizure and detention.

and if so (4) Whether the item of special damages of 214(pounds) claimed by the plaintiff was proved according to law.

Now, we cannot proceed from the record alone, having regard to all we have said about the conflicting and divergent nature of the evidence on both sides, to evaluate the evidence and make these findings, because we are at a disadvantage as we did not see the witnesses give evidence. It is therefore difficult to assess their credibility. The case of the plaintiff was not considered as it ought to have been and so we do not know what the result would have been had the case been properly considered by one who saw and heard all the witnesses. Nor can it be said that the defendants have been proved to be liable for the same reason and more. Their own defence was not also considered, properly. In any case the evidence on both sides was not evaluated as a whole by the learned Chief Magistrate who saw and heard the witnesses. The learned Judge, as we have pointed out, himself was in error in his approach to the case. We have therefore come to the conclusion that this case must be sent back to the Chief Magistrate’s Court to be retried by another Chief Magistrate. ” Against this judgment ordering a re-trial by another Chief Magistrate’s Court at Ibadan, an appeal has been brought to this court on the following four grounds:

“1. The learned Justices of the Court of Appeal erred in law and misdirected themselves on the facts in setting aside the judgment of the High Court on the ground that the evidence was not properly evaluated when the issue before the Court was whether the defendants are liable for the removal of the mill either personally, which was abundantly proved by the plaintiff or even if removed by the police, which was not proved by the defendant, and thereby came to a wrong conclusion.

2. The defendants having admitted that they reported the plaintiff to the police, in consequence of which the mill was removed the learned Justices of the Court of Appeal ought to have held the defendants liable for the acts of the police as their agent and erred in law by not so doing.

3. The learned Justices of the Court of Appeal ought to have held that even if the police originally brought the mill to the police station the defendants became liable for the seizure from the moment they refused, when asked by the police to return the mill to the plaintiff having regard to the evidence of 3rd P.W. P.C. Joseph Ojo on this point and thereby erred in law by not so doing.

4. The Order for retrial was not a proper exercise of their Lordships’ discretion having regard to all the circumstances of the case particularly.

(a) When their Lordships are equally in the same position as the trial court to evaluate the evidence before the Court and determine the rights of the parties on the materials before the court.

(b) when the parties have decided to limit their witnesses to the number that suits them.

(c) when the issues on which specific findings of facts are not made are not material to the determination of the case and did not occasion a miscarriage of justice.

“Mr. Agbaje, learned counsel for the appellant, chose to begin with Ground 4. He argued that, contrary to the assertion of the Western State Court of Appeal, the Chief Magistrate made a specific finding of fact as to who took the pepper mill when he said:

“The police and not the defendants removed the mill and I find this as a fact believing the evidence of the defendants.”

Learned counsel also argued that the learned trial judge adverted his mind to the same point when he said:

“The most liberal consideration of the evidence in favour of the respondents, is that they did not remove the mill by themselves but that the mill was removed by the police. Assuming that was so, they should be liable for putting the police in motion.”

The trial judge, learned counsel added, even observed that there was a conflict of claim to ownership of the mill, as when the second defendant testified as follows:

“There the plaintiff claimed to be the owner but we told police constable Ojo that we had got the man who claimed to own it arrested for non payment of tax.”

Learned counsel pointed out that, in any case, the second defendant did not challenge the plaintiff’s claim to ownership, nor was there ever a counterclaim. We are of the view that, as the mill was eventually returned to the plaintiff by the defendants without further evidence on this point, there could not have been anyone else with a strong claim to the mill. Mr. Agbaje’s reply to the complaint of the Western State Court of Appeal that certain witnesses who ought to have been called but were not called, is that the fault was on the part of the defendants who should have called the D.P.O. Aborowa, but did not call him. Learned counsel drew our attention to the following passage in the evidence of the third plaintiff witness:

“After I had compiled the case file, I forwarded it to the D.P.O. who asked them to return the pepper mill to the plaintiff. The plaintiff claimed the pepper mill as his own and I advised the defendants to return the mill to the plaintiff. The defendants told me they came to report that the plaintiff was not a member of their Union and that that was why they should return the pepper mill. I then told them that they should return the pepper mill to the plaintiff but they said they could not return it to him. That was why I took the case before the D.P.O. the next day for Interview..”

Although this witness was cross-examined by the respondent’s counsel, nevertheless no question was put to him on the point, and D.P.O. Aborowa was not called. We think that there is merit in this submission because it is not for the court to tell counsel what witnesses to call in a civil matter: Kofi Gbajor v. James Oguntimehin (1961) All N.L.R. 853, at 856. We are also of the opinion that it is not for the magistrate or judge to speculate as to the contents of a document. Enekebe v. Enekebe (1964) 1 All N .L.R. 102, at p. 109.

Mr. Agbaje further submitted that the Western State Court of Appeal is wrong in asking for proof of damage as a condition of the defendants’ liability, and maintained that once the seizure of the plaintiffs mill was shown to be unlawful, damage must be implied. As to whether the special damage of 214(pounds) was proved accordingly to law, Mr. Agbaje referred us to this part of plaintiff’s evidence:

“For the unlawful seizure, I am asking for 214(pounds). I make at least 2 a day on the mill and my boy gives me this every day. The sum of 214(pounds) was for the period of seizure.”

This evidence of the plaintiff was never challenged by the defendants. We agree with the submission of learned counsel that, in the circumstances of this aspect of the case, the plaintiff is entitled to judgment for this sum as ordered by the High Court: Okechukwu & ors. v. Okafor & ors. (1961) All N.L.R. 685, at p. 692.

The final submission of the learned counsel for the appellant under Ground 4 is that the Western State Court of Appeal is wrong to have said that there was conflicting evidence in the courts below, since all the necessary materials were available to it to have formed its own conclusion: Sidiku Kasaduku v. Atolagbe (1973) 5 S.C. 195; and Lawal v. Dawodu (1972) 8/9 S.C. 83, at p. 115. The Court of Appeal, should have applied s. 18 of the Western State Court of Appeal Edict to rehear the case and come to its own conclusions, as indeed this court is entitled to do under s. 22 of the Supreme Court Act, 1960.

In respect of Ground 1 which Mr. Agbaje argued next, the appellant had satisfactorily established by evidence in the courts below that it was the defendants who removed the pepper mill from his workshop at Bode and that D.P.O. Aborowa ordered the defendants to return the mill to the plaintiff but that they refused. It was his submission that the defendants unlawfully entered the plaintiff’s premises and removed the mill, and that, throughout the cross-examination of the 3rd plaintiff witness, the defendants did not challenge him on this point. The onus had thus shifted to the defendants to prove that it was the police that in fact removed the mill from the plaintiff’s premises. The defendants had failed to discharge this onus by failing to call D.P.O. Aborowa and the police constable said to have gone to the plaintiff’s workshop to remove the mill personally. The evidence of the first defendant was not supported by anyone. As regards the only document that the defendants tendered (Exhibit D) which is of no evidentiary value in this case, being a series of mere jottings, its maker was not called to give evidence when he would have been cross-examined on the contents of the document.

We are of the view that, even if the police had been shown to have removed the mill at the defendants’ instance, the defendants would nevertheless have been liable for the wrongful seizure of the mill, since they would then have set in motion a ministerial act as distinct from a judicial one: Hopkins v. Crowe 111 English Reports, p. 974, at p. 975.

It cannot be over-emphasized to both high and low that every person resident in this country has a right to go about his or her lawful business unmolested or unhampered by anyone else, be it a Government functionary or a private individual. The courts will frown upon any manifestation of arbitrary power assumed by anyone over the life or the property of another even if that other is suspected of having breached some law or regulation. People must never take the law into their own hands by attempting to enforce what they consider to be their right or entitlement. It is, therefore, wrong, very wrong for a group of persons to go to the workshop of another in Bode, effect a forcible entry into it, beat up his employee and remove the morning’s takings, all in the purported but misguided exercise of power on behalf, ostensibly, of a local branch of a trade union. It is even more wrong for such persons to claim immunity for their action on the pretence that it was a police officer that they had employed to remove the pepper mill. The law of Nigeria is that those who set a ministerial rather than a judicial officer in motion in this way are as liable for the wrongful seizure of another’s property as if they had done it themselves. Police officers must, therefore, be wary of being unveigled into a situation in which they find themselves becoming partisan agents of wrong-doers in the pursuit of a private vendetta. This kind of a show of power which is becoming too frequent in our society today must be discouraged by all those who set any store by civilized values. The poor pepper mill owner is as entitled to his workshop and his humble means of livelihood as is the owner of a mansion and a share certificate not to be deprived of them even for one day. There will accordingly be judgment in favour of the mill owner for the loss of his earnings during the period when his mill was wrongfully withheld by the defendants. In arguing Grounds 2 and 3 together, Mr. Agbaje submitted that there is evidence (in a passage cited supra) that the police did advise the defendants to return the mill to the plaintiff but that they refused. We agree that this refusal is unreasonable in the circumstances of this case and that the defendants are liable to the plaintiff for the unlawful detention of the mill from 30th August to 14th December, 1969.

Mr. Onalaja, learned counsel for the respondents, replied briefly by arguing that it was the police and not the defendants that removed the plaintiff’s mill and that one Suberu Ajao was alleged to have said that he came with the mill from Oranyan to Bode. In view of what we have just said above, neither submission is well founded. Learned counsel finally submitted that, as the Chief Magistrate had dismissed the case, a re-trial should be ordered.

We agree with the Western State Court of Appeal that the learned trial judge was wrong to have decided the appeal before him without giving counsel an opportunity to be heard on the second of the two points on which the Chief Magistrate had purported to decide the case. After a careful consideration of the matter, we are satisfied that this lapse on the part of the learned trial judge has not occasioned any miscarriage of justice, since the point at issue is one of law for the court. It should be emphasized that it is as desirable that counsel should always be heard on any ground of appeal filed by them and which they desired to argue, as that an appeal judge desiring to raise a point on his own should also give a like opportunity for counsel to be heard.

For the various reasons we have given above, this appeal succeeds and is allowed. The judgment of the Western State Court of Appeal in CAW/60/72 delivered on 2nd February, 1973 is hereby set aside and the judgment of Ogunkeye J., in Suit No. I/41A/70 delivered on 17th September, 1971 is hereby restored but so that the 30 pounds awarded therein for general damages is disallowed and only the 214 for loss of earnings is allowed. Costs awarded to the appellant are assessed at N125 in the court below and at N132 in this court.

 

Appearances

 

Mr.Y.A. Agbaje (with him Mr. J.B. Afolabi) For the Appelants

 

Mr.M.O. Onalaja For the Respondents