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Gyang & Anor V Cop of Lagos State & Ors in the Supreme Court of Nigeria

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Gyang & Anor V Cop of Lagos State & Ors in the Supreme Court of Nigeria GYANG & ANOR V COP OF LAGOS STATE & ORS IN THE SUPREME COURT OF NIGERIA HOLDEN AT ABUJA ON THE 20TH DAY OF DECEMBER, 2013 ELECTRONIC CITATION: LER[___]SC. 360/2007 OTHER CITATIONS: [ ____ ] ANLR ___ CORAM BETWEEN WALTER SAMUEL JUSTICE, 1. HARUNA GYANG APPELLANTS NKANU ONNOGHEN SUPREME COURT MUHAMMAD SAIFULLAH JUSTICE, 2. JOACHIN IWUOHA MUNTAKA-COOMASSIE SUPREME COURT SULEIMAN GALADIMA JUSTICE, AND SUPREME COURT NWALI SYLVESTER JUSTICE, 1. COMMISSIONER OF RESPONDENTS NGWUTA SUPREME COURT POLICE, LAGOS STATE KUDIRAT MOTONMORI JUSTICE, 2. INSPECTOR- OLATOKUNBO KEKERE- SUPREME COURT GENERAL OF POLICE EKUN 3. NIGERIA POLICE FORCE 4. MINISTRY OF POLICE AFFAIRS 5. ATTORNEY- GENERAL OF THE FEDERATION 6. PROVOST MARSHAL, FORCE HEADQUARTERS (ANNEX) LAGOS. JUDGMENT (Delivered by SULEIMAN GALADIMA, JSC) This is an appeal against the judgment of the Court of Appeal, Lagos Division delivered on the 8th of April, 2013, affirming the ruling of the trial Federal High Court, delivered on 22nd May, 2001. On the 8th of November, 2000 the Appellants at the Federal High Court sitting in Lagos commenced an action by way of motion exparte for leave to apply for an order of certiorari seeking the following reliefs: "(a) A DECLARATION that the proceedings tagged "CP's Review'' signed by one J A. Alade, Force Provost Marshal, by which the Applicants were dismissed from the Nigeria Police Force, is unconstitutional, illegal, null and void, in that it breaches the Applicant's right to fair hearing as enshrined in section 36 of the 1999 Constitution of the Federal Republic of Nigeria. (b) AN ORDER of certiorari removing the proceedings tagged "CP's Review" signed by one J. A. Alade, Force Provost Marshal. By which the Applicants were dismissed from the Nigeria Police Force, into this Honourable Court, for the purpose of quashing the said proceedings. (c) AN ORDER quashing the proceedings tagged "CP's Review" signed by one J.A. Alade, Force Provost Marshal, by which the Applicants were dismissed from the Nigeria Police Force. (d) AN ORDER reinstating the Applicants to their ranks with all their full rights and entitlements as if they had not been dismissed. The grounds upon which the reliefs were sought are'- "(a). That the Applicants and three other purported defaulters were earlier discharged and acquitted of a one-count charge of corrupt practice brought against them on the 2/04/99 in an orderly room at Mopol 2, Keffi Street, Lagos State. (b) That the review panel headed by one J. A. Alade the Acting Commissioner of Police Provost Marshal, Force Headquarters (FHO) Annex that reviewed the earlier proceedings and dismissed the Applicants from the Nigeria Police Force did not give the Applicants a right to represent themselves and be heard thereby denying the applicants their constitutional right to fair hearing (c) That the Applicants are entitled to be returned to their original positions before their rights were denied them." Accompanying the application, is a Verifying Affidavit of 9 paragraphs sworn to by one of the Counsel in the chambers of the Applicants' Solicitors. Three Exhibits were attached viz'- (a). Exhibit "A" - The proceedings and judgment of the Orderly Room Trial. (b) Exhibit 'B' - The proceedings of the Review. (c) Exhibit C - Letter of Appeal by the Applicants to the Appeal Department of the Inspector-General of Police. In compliance with the Rules of this court parties filed and exchanged briefs of argument. At the hearing of this appeal on 30/9/2013, the Learned Counsel for the Appellants, Festus Keyamo Esq. adopted the Appellants' brief filed on 18/4/2008. The Respondent's brief dated 1/12/2008 and filed on 10/12/2008 would appear deemed filed on that date. It was adopted by the Chiesona I. Okpoko, Esq. of the Department of Civil Litigation and Public Law of the Federal Ministry of Justice. The Appellants' two issues formulated for determination read thus. "(1), whether the Court of Appeal was right, in view of the provisions of section 36 of the 1999 Constitution and the Rules of Natural Justice, when it held, in effect, that, since the Commissioner of Police only "Reviewed" the proceedings of the Orderly Room Trial before reaching a decision, the Commissioner of Police was not bound to hear from the Appellants before he took the decision which adversely affected the Appellants' (Grounds 1 and 2). (2). whether, from the Records, there existed concurrent findings of facts which the Court of Appeal needed to review and which it declined to do (Ground 3). " The Respondent on the other hand formulated one issue for determination. It reads: " Whether the Court below was right in dismissing the Appellants' Appeal". The contention of the Appellants is that it was a denial of fair hearing of the allegation against them without being called upon to make representation, and that, this Court can interfere with the decisions of the two lower Courts because the question involved is not one of fact but of law. It is urged on this Court to set aside the decision of the Court of Appeal which dismissed the Appellants' appeal. Learned Counsel for the Respondent has submitted that the procedure adopted by the Appellant to challenge the Police Provost Marshal Review Report and Recommendation in Court was wrong as the action was not initiated by due process of law. That the Police Provost Marshal in conducting his review did not take any evidence or witness at all. All he did was to go through the proceedings of the investigation and recommendations of the Delegated Officer who conducted same. It is argued that the Investigation Report and Recommendation of the Delegated Officer, who actually conducted the proceedings at the Orderly Room Trial, was only referred to the Police Provost Marshal for review. It is contended that the action of the Police Provost Marshal, in his review report was administrative and not judicial or quasi judicial. Learned Counsel further contended that a prerogative writ procedure adopted by the Appellants is inappropriate to challenge the said report of the Police Provost Marshal. Reliance was placed on the cases of ATTORNEY-GENERAL LAGOS STATE v. DOSUNMU (1989) 3NWLR (pt.lll) 552 at 567; NWOBOSHI v. MILITARY GOVERNOR DELTA STATE (2003) 3NWLR (PT.831) 305 AT PP.317 - 318 AND R v. DISTRICT OFFICER FOR KUTIA PEOPLE Exparte Eti Atem (1966) All NLR 51 at 56. On the issue of whether or not the Police Provost Marshal by his review and recommendation, breached Section 36 of the 1999 Constitution, Learned Counsel contended that the Appellants having commenced their action through a wrong procedure, and the trial court for that reason not having jurisdiction to entertain same, a fortiori, this court, as Appellate Court lacks jurisdiction to adjudicate upon; more so that the courts below did not make any finding of fact whether the Appellant's right of fair hearing was breached by the Review Report and the Recommendation, which was sought to be quashed. My observation, in this matter, is that the first issue and the sole issue formulated by the Appellants and the Respondent, respectively, revolves round the applicability of Section 36 of the 1999 Constitution of the Federal Republic of Nigeria. In other wards whether the court below was right in view of the provisions of Section 36 of the 1999 Constitution and the Rules of Natural Justice, when it held that since the Commissioner of Police only "reviewed" the proceedings of the Orderly Room Trial before reading a decision, the said Commissioner of Police was not bound to hear from the Appellants before he took the decision with imposition of a more severe punishment resulting in dismissal of the Appellants. It has long been settled in a line of cases decided by this court that administrative bodies or tribunals, acting judicially in the determination or imposition of a decision that is likely to affect the civil rights and obligations of a person, are bound and enjoined to strictly observe the principles of fair hearing. See R v. ELECTRICITY JOINT COMMISSION (1968) NMLR 102: ADEYEMI v. ATTORNEY-GENERAL FEDERATION (1984) 1 SCNLR p.525; ADIGUN. ATTORNEY-GENERAL OYO STATE & 18 ORS (1987) 1NWLR (pt.53) 682; OYEYEMI v. COM. FOR LOCAL GOVERNMENT (1992) 2 NWLR (pt.226) 661 at 67 AKIBU v. ODUNTAN (2000) 13 NWLR (pt.685) p.446; STATE v. AJIE (2000) 11 NWLR (pt.678) 434 and AKANDE v. NIGERIAN ARMY (2001) 8 NWLR (pt. 714) P.1. This principle often expressed by the Latin Maxim "Audi Alteram Partem" meaning "hear the other side," has been for long enshrined in our jurisprudence. These decisions deal with this general principle of natural justice. My careful study of each case makes it distinguishable from one another. For example, the case of ADIGUN v. ATTORNEY-GENERAL OYO STATE (Supra) is distinguishable and with due respect inapplicable in the consideration of this appeal. The complaint in that case is that before the "AGIRI COMMISSION' one party testified before the commission, whilst, the other party was not at all invited to testify to put their case before the Commission. This was a clear breach of the principle of fair hearing. I have observed that from the affidavit evidence and the supporting statement; the Appellants are not complaining against the Orderly Room Trial. Their grouse against the CP's Review is that they were not given an opportunity to be heard and that heavier punishment than that of the Orderly Room Trial was meted out to them. Thus the issue to be determined here is whether the conduct of the CP's Review of the findings and decision of the Orderly Room Trial deprived the Applicants their fundamental right to fair hearing as guaranteed under Section 36 of the 1999 Constitution.
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