MAJA (JNR) & SONS LTD (PLAINTIFF/RESPONDENT)

v.

UNITED AFRICAN COMPANY OF NIGERIA LTD (DEFENDANT)

(1971) All N.L.R. 461

Division: High Court of Lagos

Date of Judgment: 3rd May, 1971

Case Number: SUIT NO. LD/426/1970

Before: Odesanya J.

Application to set aside writ of subpoena ad testificandum.

HELD:

(1)     The High Court has jurisdiction to set aside a writ of subpoena if it is satisfied that its process is being used male fide or for purposes of vexation.

(2)     In this case, after hearing applicant's Counsel and after carefully considering the matters disclosed in the affidavit, the court was not persuaded that the writ of subpoena sought to be set aside was issued male fide or for purposes of vexation.

(3)     It is not now a correct view of the law that an affidavit or a certificate referred to in the Evidence Act could always automatically take the matters mentioned therein out of the jurisdiction of the court. The present Constitution of the country takes precedence over the Evidence Act. The rights guaranteed by the Constitution cannot be varied, modified, suspended or nullified by any provision of the Evidence Act.

(4)     Section 22 of the Constitution provides that in the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal.

(5)     Where the court is satisfied that a provision of the Evidence Act relating to the determination of the plaintiff's right in this case is inconsistent with this constitutionally guaranteed right, the constitution prevails and the provision of the Evidence Act will be void to the extent of the inconsistency.

(6)     Courts have and are entitled to exercise a power and duty to hold a balance between the public interest, as expressed by a Minister, to withhold certain documents or other evidence and the public interest in ensuring the proper administration of justice.

In this case, after reading the affidavit in support of the motion and the letter addressed to the plaintiff's Counsel the court was of the view that the plaintiff would be handicapped in the presentation of his case while public interest in the Midwest State will not be affected by the evidence of the applicant.

Application dismissed.

Cases referred to:

Conway v. Rimmer and anor. (1968) 1 A.E.R. 874.

Constitution referred to:

The Nigerian Constitution S. 22.

Act referred to:

The Evidence Act SS. 166, 167, 219.

Rules and orders referred to:

High Court (Civil Procedure) Rules, Lagos State, order 34, rule 1.

APPLICATION to set aside writ of subpoena ad testificandum.

SUIT NO. LD/426/1970.

Ogunbola for Coker for the Plaintiff/Respondent.

Nylander for the Defendant.

Odesanya, J.:-This is an application made by or on behalf of Mr J.E. Imoukhuede, Secretary to the Military Government and the Head of The Service of the Midwestern State of Nigeria. The applicant seeks an order that the writ of subpoena ad testificandum No. S. 4373 issued out of the Registry of this High Court and dated 2nd February, 1971 be set aside. The grounds set out in the application are-

(1)     the issue of the writ of subpoena was occasioned by mala fides and for the purpose of vexation: and

(2)     that the applicant could not give evidence relating to the subject-matter of this suit without causing injury to either the Federal Military Government or to the interest of the Midwestern State.

The writ requires the applicant to attend the court in person in order to testify all that he knows in this case. The affidavit of the applicant's Counsel supporting the application states inter alia:-

"3.     That I am informed by Mr J.E. Imoukhuede, Secretary to the Military Government and Head of the Service, Midwestern State of Nigeria, that on 8th March, 1971, he addressed letter No. S. 168/2/54 to Messrs J.O. Coker & Co., Solicitors to the plaintiff/respondent of his intention not to give evidence affecting State interest in this Suit, and I verily believe him. Copy of the said letter is herewith attached and marked Exhibit 'B'.

4.      That I am informed by the said Head of the Service of the Midwestern State Civil Service that the item of evidence required by the plaintiff/respondent cannot be given without causing injury to the Midwest State or the Federal Government interests, and I verily believe him.

5.      That I am informed by the Secretary to the Military Government and Head of the Service, Midwestern State of Nigeria, which I verily believe, that the item of evidence required by the plaintiff/respondent relates to a discussion with His Excellency, the Military Governor of the Midwestern State of Nigeria, regarding the acquisition of the Burutu Complex from the plaintiff/respondent.

6.      That I am further informed by the said Secretary to the Military Government and Head of the Service that the said discussion between the plaintiff/respondent and His Excellency, the Military Governor of the Midwestern State of Nigeria, was based on mis-representations by the plaintiff/respondent and unknown to His Excellency, and this I verily believe.

7.      That I am also informed by His Excellency, the Military Governor of the Midwestern State of Nigeria, that on the strength of the said misrepresentations, he was inveigled into agreeing to acquire the said Burutu Complex from the plaintiff/respondent, and I verily believe His Excellency.

8.      That since the said discussion between His Excellency, the Military Governor of the Midwestern State of Nigeria and the plaintiff/respondent, investigation has revealed that the facts relied on by His Excellency and given to him by the plaintiff/respondent do not exist.

9.      That subsequently, the Federal Military Government promulgated Decree No. 55 and known as the Ports (Amendment) Decree, 1969, wherein the plaintiff/respondent cannot acquire the said Burutu Complex without offending the law."

Exhibit B is a letter dated 8th March, 1971 addressed to the plaintiff's Counsel. It reads:-

"I am directed to acknowledge the receipt of your letter of 10th February, 1971, with which was enclosed the original of a civil subpoena No. S. 4373 in suit No. LD/426/1970 between Dr Maja (Jnr.) & Sons Ltd. and U.A.C. of Nigeria Ltd.

concerning the port of Burutu.

2.      It is assumed that you have been fully and correctly briefed by your clients on this subject. For the avoidance of doubt, however, and also for the sake of accuracy, I am to say that when His Excellency the Military Governor of this State, Colonel S.O. Ogbemudia, discussed this matter with Dr Maja on or about 1st May, 1970, Dr Maja assured His Excellence that he bought the port, with all its ancillary amenities, from the United Africa Company. He affirmed that he had paid to the firm the sum of £300,000 (three hundred thousand pounds) as full purchase price for the property. He even showed His Excellency a bank book counterfoil for the said amount which he further alleged had been received by the company. These statements were all accepted by His Excellency in good faith.

3.      It later transpired that, contrary to what His Excellency had been faithfully led to believe by Dr Maja, no money had in fact passed between him and the company. In effect, therefore, any understanding previously reached between His Excellency and Dr Maja was thus rendered morally bad and effectually vitiated.

4.      As already stated, it is presumed that Dr Maja has scrupulously included all the salient points made above in his brief for you. In any event, it is considered most desirable that the facts as known to this office should be placed at your disposal in the hope that you will carefully consider the extent to which they are likely to be of value to your clients' case.

5.      There is another aspect of this matter to which it is also considered that your attention should be drawn. His Excellency is advised that it would not be in the public interest for any evidence to be led or entertained in the courts for or on behalf of the Government of this State in this Suit.

6.      Two alternative courses would therefore appear to be open. You could, after due consultation with your clients, abandon your intention to obtain evidence by or on behalf of the Government of this State. But if for any reason this step is not taken, the Government would then feel free to take the stand briefly indicated in the preceding paragraph."

Sections 166, 167 and 219 of the Evidence Act appear to me to be relevant to the applicant's objection to giving the evidence which the writ of subpoena would require him to give. The sections read:-

"166. Subject to any directions of the Minister in any particular case, or of the Governor where the records are in the custody of a Region, no one shall be permitted to produce any unpublished official records relating to affairs of State, or to give any evidence derived therefrom except with the permission of the officer at the head of the department concerned, who shall give or withhold such permission as he thinks fit.

167. No public officer shall be compelled to disclose communications made to him in official confidence, when he considers that the public interests would suffer by the disclosure.

219. (1) The Minister, or in respect of matters to which the executive authority of a Region extends, the Governor or any person nominated by him, may in any proceedings object to the production of documents or request the exclusion of oral evidence, when, after consideration, he is satisfied that the production of such document or the giving of such oral evidence is against public interest. Any such objection taken before trial shall be by affidavit and any such objection taken at the hearing shall be by certificate produced by a public officer.

(2) Any such objection, whether by affidavit sworn by the Minister or by certificate under his hand (or by affidavit sworn by or certificate under the hand of the Governor or person nominated by him as aforesaid), shall be conclusive and the court shall not inspect such documents or be informed as to the nature of such oral evidence but shall give effect to such affidavit or certificate."

There are two questions to which the court must address itself. Was the subpoena issued mala fide, that is not with any bona fide belief that Mr Imoukhuede could give any material evidence on behalf of the plaintiff but for the purposes of vexation? The second question relates to this official's view that the interest of the Federal Military Government or that of the Midwest State Government would suffer if he should give evidence. Is this view absolutely binding on this Court? As far as the Federal Military Government is concerned the applicant cannot seek to protect its interest by the exclusion of the evidence he is required to give. Only the Federal Government can do so. The court has jurisdiction to set aside the writ of subpoena if it is satisfied that its process is being used mala fide or for purposes of vexation. After hearing the applicant's Counsel and after carefully considering the matters disclosed in the affidavit I am not persuaded that the writ of subpoena sought to be set aside was issued mala fide or for purposes of vexation. In fact the evidence which the plaintiff requires is substantially contained in the affidavit and the applicant's letter exhibit B. Did the Midwest Government offer to purchase from the plaintiff for the sum of £500,000 Burutu Ports and Complex at the material time? Whether the Government was induced by misrepresentation to make the offer would be a matter of evidence which has so far not been given.

The second question bristles with problems. I do not think that it is now a correct view of the law than an affidavit or a certificate referred to in the Evidence Act could always automatically take the matters mentioned therein out of the jurisdiction of the court. The present Constitution of the country takes precedence over the Evidence Act. The rights guaranteed by the Constitution cannot be varied, modified, suspended or nullified by any provision of the Evidence Act. Sec. 22 of the Constitution provides:-

"In the determination of his civil rights and obligations a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal....

If I am satisfied that a provision of the Evidence Act relating to the determination of the plaintiff's rights in this case is inconsistent with this constitutionally guaranteed right, the constitution prevails and the provision of the Evidence Act will be void to the extent of the inconsistency. Of course if the evidence to be given by the secretary to the Midwest State Government is against public interest in that State one simple matter arises for the court's consideration: that is whether the public interest outweighs the plaintiff's constitutional right to a fair hearing. This balancing by the court of the interest of the state and that of the plaintiff is referred to by Lord Reid in the leading case of Conway v. Rimmer and anor. (1968) 1 A.E.R. 874 at p. 888.

"... Courts have and are entitled to exercise a power and duty to hold a balance between the public interest, as expressed by a Minister, to withhold certain documents or other evidence and the public interest in ensuring the proper administration of justice."