In the Supreme Court of Nigeria Holden at Abuja On Friday, the 27th day of May, 2022

Before Their Lordships

Olukayode Ariwoola
Amina Adamu Augie
Uwani Musa Abba Aji
Mohammed Lawal Garba
Abdu Aboki
Adamu Jauro
Emmanuel Akomaye Agim

Justices, Supreme Court

SC./911/2017

Between

Rt. Hon. Chibuike Rotimi Amaechi Appellant

And

1. The Governor of Rivers State

2. Attorney-General of Rivers State

3. Judicial Commission of Inquiry

(To investigate the administration of

Rt. Hon. Chibuike Rotimi Amaechi)

4. Hon. Justice George Omereji

5. Barr. Queen Godwin

6. Dr. Zacheaus Adango Respondents

7. Dr. Edith Chukwu

8. Chief Monday Ekerenta

9. Rev. Can. Alex Usifo

10. Elder Ignatius Piegbara

(Lead Judgement delivered by Honourable Emmanuel Akomaye Agim, JSC)

Facts

Upon assumption of office, the 1st Respondent, pursuant to Section 1 of the Commissions of Inquiry Law of Rivers State (“the law”), set up the 3rd Respondent (“the Commission’’) to investigate the sale of some valued assets of Rivers State and other related matters under the administration of the Appellant. The 4th Respondent was the Chairman, while the 5th to 10th Respondent were the members of the 3rd Respondent. Upon the inauguration of the 3rd Respondent, the 1st Respondent directed the 3rd to 10th Respondent to conclude the assignment as contained in the Terms of Reference within one month of the said inauguration. Consequently, a public announcement was issued giving notice and requesting all affected and interested persons to submit memoranda to the Secretary of the Commission.

Sequel to the action of the 1st Respondent, the Appellant commenced a suit against all the Respondents at the trial court, challenging inter alia, the judicial powers of the Commission. The 1st and 2nd Respondent filed a Preliminary Objection challenging the jurisdiction of the trial court, and the Appellant’s locus standi to institute the suit. The trial court upheld the Preliminary Objection. Thereafter, the court considered the Appellant’s suit on the merit, and dismissed same.

The Appellant, who was dissatisfied with the decision of the trial court, unsuccessfully appealed the decision at the Court of Appeal. The Appellant has further appealed to the Supreme Court. The Respondents filed a Preliminary Objection against this appeal.

Issues for Determination

Six issues were raised for determination by the court. However, the court considered the following five issues:

1. Whether the Court of Appeal was right to hold that there is no distinction between a judicial commission of inquiry and a commission of inquiry.

2. Whether the 30-day time limit given to the 3rd Respondent by the 1st Respondent to conduct and conclude its inquiry, was rightly adjudged by the Court of Appeal and did not implicate a denial of the Appellant’s right to fair hearing within a reasonable time as guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

3. Whether the Court of Appeal correctly construed and applied Section 2(1) of the Commission of Inquiry Law (Cap.30) Laws of Rivers State, regardless of the overriding specific provision of the Constitution as to how a Governor can be investigated in his official capacity.

4. Whether the Court of Appeal rightly held that the 3rd Respondent can competently investigate and probe the Appellant who is no longer in the public service of Rivers State Government because of his official executive decisions as Governor of the state.

5. Whether the Court of Appeal rightly held that the adverse and injurious pronouncements made by the trial Judge against the Appellant in respect of the claim in litigation constituted a mere obiter dictum, and therefore, could not be appealed against.

Arguments

Submitting on the Preliminary Objection, the Respondents argued that the Appellant’s Notice of Appeal was incompetent because it did not contain the address for service on the 1st Respondent, and that all the grounds in the appeal were of mixed law and fact, which leave of court was not obtained to appeal on those grounds before the Notice of Appeal was filed.

Arguing the main issues for determination, counsel submitted on issue one that the 3rd Respondent, a Judicial Commission of Inquiry, by its terms of reference, was set up to determine rights and obligations or try persons for the commission of crime. The Respondents countered the submission; they argued that the Commission is a fact finding and investigative body, whose decision does not have legal force until it is confirmed by another body.

On issue two, counsel argued for the Appellant that the 3rd to 10th Respondent were required to observe the provisions of Section 36 of the 1999 Constitution; and that the Commission ought to have been constituted in such a manner as would avail the Appellant adequate time and facilities to prepare for the defence and present facts to the body that was set up to probe his administration. He posited that the terms of reference consisted of 23 broad items to be inquired into, and one month was ridiculously too short a time to effectively conduct investigation, unless the purpose was to do a hatchet job for the new regime. Counsel for the Respondents argued that the Commission had not commenced its sitting, and the Appellant was yet to be invited to appear before the Commission. The Appellant had also not requested for a specific time frame to make a presentation, before hastily resorting to the principle of fair hearing.

Submitting on issue three, Counsel for the Appellant contended that Section 2(1) of the Commission of Inquiry Law of Rivers State is inconsistent with Section 2 of the 1999 Constitution. He argued further that the oversight function over the executive decision of Rivers State is vested in the legislative branch under the Constitution, and same cannot be delegated or deemed conferred on the Commission to be set up by the executive branch pursuant to an ordinary law of the State. Also, the terms of reference given to the 3rd Respondent to investigate were matters that had been approved and ratified by the Rivers State legislative arm, and if eyebrows are raised as to how those matters were handled, it is the place of the House of Assembly to institute investigations. Responding to the submissions, the Respondents stated that the Appellant’s reliance on the provisions of Section 128 of the Constitution is misplaced, and borne out of gross misunderstanding of the purport and import of the Section. The power vested in the House of Assembly by that section is not absolute or exclusive; Section 128 is subject to Section 176 of the Constitution, that makes the Governor the Chief Executive Officer of the State. The executive arm of Government is at liberty to investigate into any matter, in respect of which the House of Assembly is entitled to make law for any purpose at all. The power conferred on the 1st Respondent by Section 2 of the Law to issue commissions of inquiry is constitutional and in furtherance to the executive powers of the Governor as provided for under Sections 5(2) and 176 of the Constitution.

On issue four, counsel submitted that the Appellant having exhausted his tenure as Governor of Rivers State, does not fall within the definition of a member of public service of the State, and consequently, cannot be investigated by the 3rd Respondent. He argued that the terms of reference sought to be investigated upon, was an executive decision which was implemented by the Appellant during his tenure as Governor, and it is not in the place of the Commission to investigate executive decisions made by the Governor and the State Council, as executive governance exists in continuity despite the change in governance. The Respondents countered the submission, stating that there is nothing in the terms of reference which shows the Commission was set up to inquire or review any executive decisions of Rivers State Government.

On issue five, counsel argued that the Court of Appeal erred in law when it mis-characterised the offensive remarks of the Judge as mere obiter dictum, and assuming without conceding it is, it is of no consequence as the important consideration is the impression created in the minds of right thinking members of the society. He maintained that the trial court had a grudge against the Appellant; therefore, the remarks were highly prejudicial to the Appellant, and demonstrate that he had little or no chance of enjoying the benefit of doubt that he would otherwise have been entitled to. In response, the Respondents argued that the comment was a mere admonition, a general statement to underscore the importance of the Judiciary in the scheme of things in democratic governance, a harmless obiter dictum.

Court’s Judgement and Rationale

Deciding the Preliminary Objection, the Supreme Court held that the Appellant filed two notices of appeal. The first one was filed without leave of court first obtained. The second notice of appeal was filed together with an application seeking leave to appeal and extension of time to appeal, and this was granted by the court. The grant of the application and the filing of the second notice of appeal, showed that the initial notice of appeal had been abandoned. Regarding the Respondents’ argument that there was no address for service on the 1st Respondent, the court held that it was glaring from the record of appeal, that the address of counsel for the 1st Respondent was included on the notice of appeal by virtue of the proviso to Rule 3(1) of the Supreme Court (Amendment) Rule, 2014.

Coming to the main issues, on issue one, the Apex Court held that a Commission of Inquiry under the Commission of Inquiry Law is a fact finding body set up by the executive arm of government, to investigate the state of affairs in the State generally or in particular areas, the official conduct of heads of Government, heads and other officers of Government ministries, departments and institutions, the management of public funds and properties, any transaction involving the State or its fund or property and any other issue of urgent public importance for the public welfare, peace and security. The purpose of the investigation is to find out the facts, or gather facts on the subject-matter of inquiry. In so doing, it is not trying any person for the commission of any misconduct or crime – BABA v NCATC (1991) 5 NWLR (Pt. 192) 383. The designation as Judicial Commission of Inquiry and the fact that it was headed by a retired judicial officer cannot invest it with judicial powers to determine any rights or obligations or try any person for the commission of a crime.

On issue two, the Supreme Court held that the terms of reference of the Commission show that it is to inquire into certain transactions involving the funds and properties of the Government of Rivers State when the Appellant was Governor of Rivers State. Beyond the request for a written memoranda from the public, there is nothing to show that the Appellant or anybody was going to be tried by the Commission. The assumption that the Appellant was being tried or going to be tried and therefore needed to defend himself or prepare for his defence is baseless and wrong. The fundamental right to fair hearing under 36(1) of the 1999 Constitution can only be invoked in respect of proceedings in a court or other tribunal established by law; it cannot apply to non-judicial proceedings such as the proceedings of commissions of inquiry and other administrative bodies, although the Commission is bound to observe and comply with the principles of natural justice and fairness in their proceedings – BABA v NIGERIAN CIVIL AVIATION TRAINING CENTRE, ZARIA (1991) 5 NWLR (Pt. 192) 383.

On issue three, the Supreme Court held that the provisions of Section 2(1) of the Commission of Inquiry Law of Rivers State, is not in conflict with Section 128 of the 1999 Constitution. Both provide for an inquiry or investigation over essentially the same subject-matter by different arms of government in the domain of the power and functions vested on them by the Constitution, and in pursuance of their respective powers as vested on each of them by the Constitution. There is nothing in Section 128 of the Constitution that suggests that only the legislature can hold or direct an inquiry into matters of public governance or other matters of public welfare. The 1st Respondent as Governor of Rivers State set up the Commission in exercise of the power vested on him by Section 2(1) of the Commission of Inquiry Law, in line with Section 5(2)(b) of the Constitution, which gives the Governor the power to execute and maintain the Constitution and all laws made by the House of Assembly and extends his exercise of the State executive powers to all matters with respect to which the House of Assembly has for the time being power to make laws. Consequently, the 1st Respondent did not overstep its constitutional bounds by carrying out such an inquiry as authorised by the Law.

Regarding issue four, the Supreme Court held that the terms of reference of the Commission, does not include the consideration or review of the decisions of the Rivers State Government to enter into any of the transactions listed in the terms of reference as subjects of the inquiry. It is the carrying out of the transactions that is the subject of inquiry. It is obvious that the transactions involving the public fund and properties of a State directly concern the public welfare of that State, an inquiry into such transactions would certainly be for the public welfare benefit.

Deciding issue five, their Lordships held that the passing comment of the trial court made after it had determined all the issues in the case but before it pronounced its final verdict, created an impression of apparent bias that may cast suspicion on the impartiality of the adjudication by the court, even though the comment did not touch on the matters for determination in the suit. The bias is merely apparent and not actual, because it is a suspicion arising from the comment of the trial Judge. There must be evidence of improper or perverse adjudication of the case, to support the apparent bias in nullifying the proceedings. Where the trial has been conducted in which the authority of the court has been fairly exercised in consistence with the fundamental principles of justice and the due process of law, and the findings of facts and decisions of the court are the result of a proper evaluation of the totality of the evidence and consideration of the addresses, apparent bias will remain what it is without more. The resulting suspicion, will remain mere suspicion without substance.

Appeal Dismissed.

Representation

L.O. Fagbemi, SAN with A.J. Owonikoko, SAN and Ors. for the Appellant.

Emmanuel C. Ukala, SAN and Ors. for the 1st and 2nd Respondents.

D.C. Denwigwe, SAN with J.O. Asoluka SAN and Ors. for the 3rd Respondent

K.C.O. Njemanze, SAN and Ors. for the 4th to 10th Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)

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