A. A. OHAJI & Ors v. CHIEF PIUS UNAMKA & Ors
(2010)LCN/3864(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of June, 2010
CA/PH/155/2001
RATIO
ACTION: IMPORTANCE OF STATEMENT OF CLAIM AND WRIT OF SUMMONS
Therefore in deciding whether or not to strike out a statement of claim or suit for non-disclosure of cause of action, the Court must restrict itself to the fact in the statement of Claim without recourse to the other facts in the Defendant’s Pleading. In determining whether the case of the Appellants discloses a cause of action or not, the Court will restrict itself to the Writ of Summons and the Statement of Claim filed by the Plaintiffs.
Further in deciding whether or not a cause of action exists or a reasonable cause of action exists, the Court must examine the totality of the writ of summons and also the statement of claim. See FUMUDOH V. ABORO (1991) 9 NWLR (PT 214) 210. PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A.
COURT: WHEN DOES THE FUNCTION OF THE COURT BEGIN IN MATTERS INVOLVING THE EXERCISE OF STATUTORY POWER
In matter involving the exercise of statutory power, it is settled law that, the function of the Court begins when it is alleged that the power has not been exercised in accordance with the law.
In A.G. ANAMBRA STATE V. OKAFOR (1992) 2 NWLR (PT. 224) 396 AT 419, the Supreme Court states thus:-
“In matters involving the exercise of statutory power, the function of Courts begins only when it is alleged that the power has not been exercised in accordance with the law, once the person or authority or body on whom the statutory power is conferred has exercised, its powers under the statute, any citizen of Nigeria who feels his rights are infringed thereby can by virtue of Section 6 (6) (b) of the Constitution of the Federal Republic of Nigeria 1979, challenge the exercise of the power. (Merchant Bank v. Federal Minister of Finance (1961) All N.L.R. 598; Egbuson v. Ikechukwu (1977) 6 S.C. 7 referred to and followed)”
Again in AJAKAIYE V. IDEHAI (1994) 13 NWLR (PT. 364) 8 NWLR 504 AT 525 to 526 the Supreme Court held thus:-
“Where there is a statutory provision for making an order or declaration and the making of same is reposed in a named office, whether Minister or Commissioner or indeed the President of the republic or the Governor of a State, such function cannot be usurped by the Court. The furtherest, a Court can so is to declare as to validity or otherwise of that order or declaration of a public officer, but the Court has not got the Jurisdiction to take over the functions of such public officer by making its own order or declaration as against the statutory provisions.” PER ABUBAKAR JEGA ABDUL-KADIR, J.C.A.
JUSTICES
ABUBAKAR JEGA ABDUL-KADIR Justice of The Court of Appeal of Nigeria
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
Between
1. A. A. OHAJI
2. I.J. NWACHUKWU (For themselves and as representing Members of Amuzi Progressive Union, Amuzi Ahiazu Mbaise)
3. C.S. OPARA
4. NWAGWU NWABUEZE FARADAY (For themselves and as representing members of Amuzi Screening Committee, Amuzi Ahiazi Mbaise)
5. SIR, INNOCENT C. UGOCHUKWU Appellant(s)
AND
1. CHIEF PIUS UNAMKA
2. MILITARY ADMINISTRATOR, IMO STATE.
3. ATTORNEY GENERAL OF IMO STATE Respondent(s)
ABUBAKAR JEGA ABDUL-KADIR, J.C.A. (Delivering the Leading Judgment): This is an appeal by the Appellants against the Ruling of Hon. Justice B. A. Njemanze sitting at Imo State High Court, Aboh Mbaise dated 12th day of April 2000 striking out the Appellant case on the ground that the action as presently constituted disclosed no cause on the ground that the action as presently constituted disclosed in cause of action.
The ruling is sequel to a motion filed by the 1st Respondent in the Imo State High Court sitting at Aboh Mbaise pursuant to order 24 Rules 2, 3 and 4 of the Imo State High Court (Civil Procedure) Rules 1988 and on the inherent Jurisdiction of the court praying as follows:
1) An Order dismissing the Plaintiffs suit on the grounds that the Court lacks jurisdiction to entertain same by virtue of the fact that it was instituted in gross violation and/or contravention of section 25 of the Traditional Rulers and Autonomous Communities law No. 11 of 1981.
2) The Plaintiffs have no locus to institute this action.
3) The suit is tainted with a fundamental vice of improper joinder and misjoinder of parties.
In his ruling at pages 133 to 140 of the records of proceedings learned trial Judge struck out the Plaintiffs’ Suit on the ground that Plaintiffs’ Statement of Claim did not disclose any cause of claim and Court has no Jurisdiction to entertain the Suit.
Dissatisfied with the decision of the trial court the Appellants appealed to this Court vide their Notice of Appeal dated 10th May 2000 containing four Grounds of Appeal.
The Appeal was heard on the 10th of March 2010 and in line with the Rules and practice of this court; the parties were obliged to file their briefs of Argument. The Appellant brief of Argument is dated 7/11/01 and deemed filed on 23/4/02. Learned counsel for the Appellant adopted the brief of argument and urged the court to allow the Appeal and remit the case to the lower court for hearing on the merit. This Appeal is being determined on the Appellant brief alone by the order of this court made on the 30th October 2008.
Learned Counsel the Appellant formulated two issues for determination which are stated as follows:-
1. Whether the learned trial judge was right in holding that the plaintiff claim did not disclosed any cause of action.
2. Whether the learned trial judge was right in holding that the Honourable court has no Jurisdiction to entertain the plaintiffs claim.
On issue No. 1. – Learned Counsel for the Appellant referred to Plaintiffs’ Statement of claim at pages 107 to 110 of the record of proceedings. That by paragraph 20(a) of the statement of claim. The plaintiffs claim against the defendant is a declaration that the 5th plaintiff is the Eze Elect of Amuzi Autonomous Community, Ahiazu Mbaise local Government Area.
That in paragraphs 8, 9, 10, 11, 12, 13 and 14 of the Statement of Claim the Plaintiffs averred that the 5th Plaintiff was duly identified, selected, appointed and installed in accordance with the tradition and custom of the people of Amuzi Autonomous Community and was duly presented to Chief Executive of the Ahiazu Mbaise Local Government Area for recognition by the second defendant as Eze of Amuzi Autonomous Community.
That by the provision of Order 24 Rues 1, 2 and 3 of the Imo State High Court Civil produdure Rules, the Defendants admitted the aforemention averment of the plaintiffs. That by paragraphs 8, 9, 10, 11, 12, 13, 14 and 18 of the statement of claim which were admitted by the defendant for the purposes of Order 24 Rules 1, 2 and 3 of the Imo state High Court procedure Rules, the plaintiffs established the 5th Plaintiff title/right to the Ezeship stool of Amuzi Autonomous Community as well as the right of 1st to 4th plaintiffs to put in motion the machinery for the identification, selection, appointment and installation of the Eze of Amuzi Autonomous community in accordance with tradition and custom of the people of Amuzi.
That by paragraph 15, 16, 17 and 19 of the Statement of Claim which were admitted by the Defendants for the purposes of Order 24 Rules 1, 2 and 3 of the Imo State High Court Civil Procedure Rules. The plaintiffs established the invasion of and/or challenge to the 5th plaintiff title/right to the Ezeship Stool of Amuzi Autonomous Community by the 4th Defendant as well as the invasion and/or challenge to the rights of the 1st to 4th plaintiffs to put in motion machinery for the identification, Selection etc. of the Eze of Amuzi Autonomous community in accordance with the custom and tradition of the people of Amuzi.
That Section 6(6)(b) of the 1999 Constitution confers the plaintiffs particularly the 5th Plaintiff the right to seek from court the protection of his right as Eze elect from challenge or invasion by the Defendants particularly the 1st Defendant.
Counsel to the Appellants submits that cause of action has been defined in various Judicial authorities to mean a factual situation, the existence of which entitled one person to obtain a remedy against another person while reasonable cause of action is defined as a cause of action, which when only the allegations in a statement of claim are considered has some chance of success reference made to DANTATA v. MOHAMMED (2000) 7 NWLR (PT. 664) 176; ODUNTAN V. AKIBU (2000) 80 LRCN 2595; JULIUS BERGER NIG. PLC V. OMOGUI (2001) 15 NWLR (PT. 736) 401.
Learned Counsel for the Appellants argues that by the custom and tradition of the people of Amuzi Autonomous Community which custom is documented in the constitution of Amuzi Autonomous Community the 1st to 4th Plaintiff are conferred with the powers to put in motion machinery for Identification. Selection, Election, Presentation and Installation of the Eze of Amuzi Autonomous Community. That in the exercise of this right, the 5th Plaintiff was duly identified, elected, selected, installed and presented to the chief Executive, Ahiazu Mbaise Local Government Area as Eze Elect of the Amuzi Autonomous Community
Further Counsel to the Appellants contends that the 1st Defendant did not participate in the election and/or selection processes put in place by the 1st to 4th Plaintiffs for the purposes of selection and presentation of Eze of Amuzi Autonomous Community. That in defiance of the power and/or right of the 1st to 4th Plaintiffs as conferred on them by the Constitution of Amuzi Autonomous Community the 1st Defendant presented himself to the Chief Executive of Ahiazu Local Movement Area as Eze Elect of Amuzi Autonomous Community and thereafter continued to parade himself as such.
Learned counsel to the Appellants submits that when there is breach of the chieftaincy constitution of an entire community, any aggrieved member or selection of the community can sue in the interest of the Community reference made to A.G. OF ENUGU STATE V. OMABA (1998) 1 NWLR (PT. 532) 83.
Further, Counsel to the Appellants contends that the conduct of the 1st Defendant amounted not only to a breach of the Constitution of the people of amuzi autonomous Community but also invasion of the rights and interests of the 5th Plaintiff as the Eze Elect of Amuzi Autonomous Community as well as challenge to rights, powers, obligations, interests etc. of the 1st to 4th Plaintiffs to carry out the functions, duties conferred on them by the Constitution of the people of Amuzi Autonomous Community. That the Plaintiffs are entitled to protection of the aforementioned rights, interests from invasion challenge by the Court. That the Plaintiffs need not fold their hands and wait until the 1st Defendant is recosnized as the Eze of Amuzi Autonomous Community before they seek the protection of their rights, interests, obligations which have already being invaded by the 1st Defendant reference made to A.G. OF ENUGU STATE V. OMABA (supra) at P.101.
Learned Counsel to the Appellants therefore contends that it was wrong for the trial Judge to hold that the Plaintiffs’ claim did not disclose any cause of action.
Issue No. 1 is essentially whether the claim of the Appellants before the trial court discloses a cause of action to be litigated upon. A Plaintiff before a trial Court must present facts which prima facie will sustain the action. Therefore in deciding whether or not to strike out a statement of claim or suit for non-disclosure of cause of action, the Court must restrict itself to the fact in the statement of Claim without recourse to the other facts in the Defendant’s Pleading. In determining whether the case of the Appellants discloses a cause of action or not, the Court will restrict itself to the Writ of Summons and the Statement of Claim filed by the Plaintiffs.
Further in deciding whether or not a cause of action exists or a reasonable cause of action exists, the Court must examine the totality of the writ of summons and also the statement of claim. See FUMUDOH V. ABORO (1991) 9 NWLR (PT 214) 210.
In the instant appeal, the Appellant’s Statement of Claim is at pages 108 to 111 of the record of proceedings.
At page 111 of the record of proceedings the Appellants as Plaintiffs claim thus:
20 – Wherefore, the Plaintiffs claim against the Defendants as follows:
a) A declaration that the 5th Plaintiff is the Eze elect of the Amuzi Autonomous Community, Ahiazu Mbaise Local Government.
b) A declaration that the 5th Plaintiff is entitled to be recognized as the Eze-elect of Amuzi Autonomous Community, Ahiazu Mbaise by the 2nd Defendant.
c) A declaration that the 1st, 2nd 3rd and 4th Plaintiffs are entitled to seek recognition of the 5th Plaintiff by the 2nd Defendant as the Eze of Amuzi Autonomous Community, Ahiazu Mbaise.
d) Injunction restraining the 1st Defendant from parading himself or allowing himself to be paraded as the Eze or Eze elect of Amuzi Autonomous Community, Ahiazu Mbaise.
e) Injunction restraining the 1st Defendant his servants, agents or workers from taking any further steps however to secure recognition from the Government of Imo State as the Eze of Amuzi Autonomous Community, Ahiazu Mbaise.
f) Injunction restraining the 2nd Defendant, his servants against or workers from recognizing in any form of manner the 1st Defendant as the Eze of Amuzi Autonomous Community. Ahiazu Mbaise.
By operation of the law, the recognition of a person as the Eze of an Autonomous Community is an executive act. In accordance with the law, it is the responsibility of the Governor to accord recognition to a person as the Eze of an Autonomous Community; this is provided for by section 7 of the Traditional Rulers and Autonomous Communities Law No. 11 of 1981 as amended. Also the law provides that certain processes must be complied with before he exercises his power under the law to accord a person recognition as an Eze of an Autonomous Community. For example, under Section 5(1) and (2) of the said law No. 11 of 1982, there must have been the identification, Selection, Appointment, Installation and presentation of the person to the Chief Executive of the Local Government which has power or Jurisdiction over the said Autonomous Community. By the same law the presentation of a person as the Eze of an Autonomous Community to the Chief Executive of the Local Government amounts to a presentation of that person to the Governor for the purpose of his recognition under the law.
Section 6(2) of the Traditional Rulers and Autonomous communities law No. 11 of 1981 states:-
“The Eze of an Autonomous Community shall be deemed to have been presented to the Governor for the purpose of his recognition under this law, if on the date and at the place and time publicized in the manner specified in subsection (1) of this Section and in the presence of members of the Autonomous Community such Eze is presented to the Chief Executive of the Local Government or any other person appointed by the Governor in that behalf”.
Also Section 7 of the same law provides:
“Where the Eze of an Autonomous Community is presented to the Governor as provided under section 4 and 5 of this law, the Governor may by an instrument (in accordance with the provisions of this law) recognize such a person as the Eze of the Autonomous Community, subject to the confirmation of the Imo State House of Assembly”.
Now by paragraph 14 of the statement of claim the plaintiffs pleaded thus:
14 – Following the request of the Amuzi progressive Union o the Chairman caretaker Committee, Ahiazu Mbaise Local Government, a date was given to them to present their Eze elect. The plaintiffs shall at the trial found and rely upon the letter informing the Amuzi Progressive Union of the date to present Eze elect.
A – The 5th Plaintiff was with great celebrations pomp and pageantry by the people of Amuzi formally and duly presented to the Chairman Caretaker Committee Ahiazu Mbaise Local Government by the people of Amuzi Autonomous Community as their Eze-elect. The plaintiffs shall at the trial found and rely upon the letter of presentation as well as other relevant documents namely:
I. Letter titled “Presentation of the Eze elect by Amuzi Autonomous Community.
II. Re-presentation of Eze elect by Amuzi Autonomous Community which were handed over to the Chairman Caretaker Committee Ahiazu Mbaise Local Government.
B – The 5th Plaintiff’s presentation was announced over the radio and television by the Amuzi Progressive Union. The Plaintiffs shall at the trial found and rely upon the said announcement.
Going by the Appellants’ case the Governor has not acted in accordance with Section 7 of law No. 11 of 1981 when they instituted this action. It is beyond dispute that going by the pleadings by the Appellants/Plaintiffs and the reliefs sought are based on an event which is yet to attain its conclusive stage as contemplated by the law guiding this type of suit. Section 25 of law No. 11 of 1981 states:
“Where the Governor has accorded recognition to any person as an Eze, such recognition shall be final, provided that where any interested party from within the Autonomous Community feels that in the exercise of such recognition of an Eze, the Rules of natural justice have been contravened then that party may have, within 21 days of the recognition, the right to appeal to the High Court for review of the recognition, and the Court may make such order as it finds fit for peace, order and good government.”
It is crystal clear that going by the provisions of Section 25 of law of No. 11 of 1981, the law contemplates that the act of recognition of an Eze of an autonomous Community must have been concluded by the Governor of the State before any action in the High Court can be brought and in this regard the trial Judge is perfectly right when he observed in his ruling at page 140 of the record of proceedings thus:-
“I am of the opinion that this case was instituted prematurely, from the way in which the case is constituted in the writ of summons and statement of claim. it is obvious that the cause of action had not accrued or arisen when the case was instituted. This is because from the statement of claim, it is manifestly clear that the person who has the statutory function to accord recognition to a person as an Eze had not exercised this statutory function when the suit was instituted. I am therefore of the opinion that as presently constituted, there is no cause of action in the case.”
In matter involving the exercise of statutory power, it is settled law that, the function of the Court begins when it is alleged that the power has not been exercised in accordance with the law.
In A.G. ANAMBRA STATE V. OKAFOR (1992) 2 NWLR (PT. 224) 396 AT 419, the Supreme Court states thus:-
“In matters involving the exercise of statutory power, the function of Courts begins only when it is alleged that the power has not been exercised in accordance with the law, once the person or authority or body on whom the statutory power is conferred has exercised, its powers under the statute, any citizen of Nigeria who feels his rights are infringed thereby can by virtue of Section 6 (6) (b) of the Constitution of the Federal Republic of Nigeria 1979, challenge the exercise of the power. (Merchant Bank v. Federal Minister of Finance (1961) All N.L.R. 598; Egbuson v. Ikechukwu (1977) 6 S.C. 7 referred to and followed)”
Again in AJAKAIYE V. IDEHAI (1994) 13 NWLR (PT. 364) 8 NWLR 504 AT 525 to 526 the Supreme Court held thus:-
“Where there is a statutory provision for making an order or declaration and the making of same is reposed in a named office, whether Minister or Commissioner or indeed the President of the republic or the Governor of a State, such function cannot be usurped by the Court. The furtherest, a Court can so is to declare as to validity or otherwise of that order or declaration of a public officer, but the Court has not got the Jurisdiction to take over the functions of such public officer by making its own order or declaration as against the statutory provisions.”
In the appeal at hand, it is manifest from the pleadings and the relief sought that the provisions of sections 6(2), 7 and 25 of the Traditional Rulers and Autonomous Communities law No. 11 of 1981 has not come into play when the Plaintiffs approached the court to seek for the reliefs endorsed in their writ of Summons when the cause of action has not arisen, accordingly the learned trial Judge was right in holding that the Plaintiffs’ Claim did not disclose any cause of action, therefore Issue No. 1 is resolved against the Appellants in favour of the Respondents.
Issue No. 2. – Whether the learned trial Judge was right in holding that the Honourable court has no Jurisdiction to entertain the Plaintiffs’ Claim.
The success of this issue is solely depended on the success of Issue No. 1 once it is discovered that the claim of the Plaintiffs did not disclose any cause of action then the court lacks the necessary vire to entertain the Appellants’ Claim. In the instant appeal it is manifest that the provisions of Sections 6(2), 7, and 25 of the Traditional Rulers and Autonomous communities law No. 11 of 1981 has not come into play when the Plaintiffs now Appellants approached the Court hence their claim by the operation of the provisions of the said sections of law No. 11 of 1981 did not disclose any cause of action thereby depriving the Court the vire to entertain Jurisdiction in respect of the said Claim; See AJAKAIYE V. IDEHAI (supra) accordingly the learned trial Judge is therefore right in holding that the Honorable Court has no Jurisdiction to entertain the Plaintiffs’ Claim. Issue No. 2 is therefore resolved in favour of Respondents against the Appellants.
Having resolved all the Issues against the Appellants, this appeal therefore lacks merit and it is in its entirety dismissed. I affirm the decision of Lower Court delivered on 12th April 2000. I award N30,000.00 costs against the Appellants in favour of the Respondents’
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the draft of the lead judgment just delivered by my learned brother ABUBAKAR JEGA ABDUL-KADIR, JCA. I agree with the reasoning and conclusions therein.
I also dismiss the appeal and abide by the order as to costs.
MOJEED A. OWOADE, J.C.A.: I agree.
Appearances
For Appellant
AND
Mr. L.C. Ugorji with Mr. C.C UzomaFor Respondent
