WALRI AIABO VICTOR IBIMINA JUMBO & ORS v. CHIEF H.F. JUMBO & ORS
(2010)LCN/3917(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 30th day of June, 2010
CA/PH/464/2009
RATIO
REPLY BRIEF: PURPOSE OF A REPLY BRIEF
The purpose for which Reply-Briefs are meant is now well known and that is to answer or respond to new or fresh points raised in the Respondents brief. It is not an avenue through which or by which an Appellants should canvass or proffer further or repeat argument in support of an appeal on the pre of replying on points of law. See POPOOLA V. ADEYEMI (1992) B NWLR (PT. 257) P.1; ADEBIYI V. SORINMADE (2004) ALL FWLR (PT. 239) P. 933 and SHUIBU V. MAITHODA (1993) 3 NWLR (Pt. 284) p. 748. See also Order 17 Rules 5 of the Court of Appeal Rules, 2007. PER TIJJANI ABDULLAHI JCA.
CAUSE OF ACTION: WHAT A CAUSE OF ACTION ENTAILS
Now, it is trite law that a cause of action is the entire set of circumstances giving rise to an enforceable claim. It arises from circumstances comprising variety of facts giving rise to a claim enforceable in a court of law. There must be a wrongful act of the Defendant which has injured or given the claimant a reason to file a suit or action in the court claiming damages therefrom. PER TIJJANI ABDULLAHI JCA.
STATEMENT OF CLAIM/ WRIT OF SUMMONS: EFFECT OF WHAT IS CLAIMED IN THE WRIT BUT OMITTED IN THE STATEMENT OF CLAIM AND WHAT IS NOT CLAIMED IN THE WRIT BUT CLAIMED IN THE STATEMENT OF CLAIM
It is instructive to state at this stage that the law is settled beyond dispute that a statement of claim supercedes a writ of summons. In the case of EZENWA V. OKO and OTHERS (2008) VOL .157 LRCN P, 230 at 243 it was held thus: It is settled law that the statement of claim supercedes the writ of summons and that what is claimed in the writ but omitted in the statement of claim is deemed abandoned while what is not claimed in the writ but claimed in the statement of claim becomes the claim before the court though subject to the payment of appropriate filing fees where appropriate.” See OTANIOKU V. ALLI (1977) 11-12 SC P. 9 AND Civil procedure In Nigeria by FILEDIS NWADIALO 2nd Edition, 1999 at p. 360, 2nd paragraph. PER TIJJANI ABDULLAHI JCA.
POSITION OF THE LAW ON THE ATTITUDE OF THE COURT TOWARDS THE TESTIMONY OF A WITNESS WHO HAS GIVEN ON OATH TWO MATERIAL INCONSISTENT EVIDENCE
The position of the law was succinctly put by the apex court in the case of FATUNBI v. OLANLOYE (2004) 6 -7 SC P. 68 at 77 as follows: “…..when such evidence of a witness is so exaggerated and it enters into a realm of flamboyancy or recklessness and petulance or appears as an affront to reason and intelligence, no credibility ought to be accorded to it. (under lining mine for emphasis). Again, in the case of EZEMBA V. IBENEME (2004) 7 SC (PT. 1) page 45 at page 56, paras. 11-14, the Supreme Court has urged us not to treat, a witness such as the 2nd Appellant as a truthful witness. The apex Court held thus: “No witness who has given on oath two material inconsistent evidence is entitled to the honour of credibility. Such a witness does not deserve to be treated as a truthful witness.” PER TIJJANI ABDULLAHI JCA.
JUSTICES
ISTIFANUS THOMAS Justice of The Court of Appeal of Nigeria
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
EJEMBI EKO Justice of The Court of Appeal of Nigeria
Between
1. WALRI AIABO VICTOR IBIMINA JUMBO
7. WARISENIBO HENDERSOM E.S. JUMBO
3. WARIALABO EDMUNID JUMBO
4. WARIALABO SODIENYE JUMBO
5. WARISENIBO PROMISE JUMBO
6. WARISENIBO DAVID F.W. JUMBO
7. WARISENIBO JOHN DAN JUMBO Appellant(s)
AND
1. CHIEF H.F. JUMBO
THE CHIEF/HEAD OF JUMBO MAJOR
HOUSE OF GRAND BONNY KINGDOM
2. WARIALABO KALADA JENE
3. ADOLPHUS WILLIAM JUMBO
4. SINCI.AIR JABEZ JUMBO
5. GODFREY T. JUMBO
6. FIDELIS JUMBO Respondent(s)
TIJJANI ABDULLAHI JCA. (Delivering the Leading Judgment): This appeal emanated from the judgment of the High court sitting in Port Harcourt, presided over by J.N. Akpughunum (J). The said judgment was delivered on 26th of February, 2009.
The Plaintiffs (hereinafter referred to as the Respondents) on the 31st of May, 2001, filed a writ of summons where they sought for the following reliefs:
“(i) A declaration that the plaintiff is still the Chief/Head of Jumbo Major House of Grand Bonny Kingdom in the Bonny Local Government Area of Rivers State.
(ii) A declaration that the Defendants either by themselves, servants, agents or privies have no right and power under Bonny native Law and Customs as applicable to Jumbo Major house to remove the 1st plaintiff or to replace him as Head of Jumbo Major House of Grand Bonny kingdom in the Bonny Local Government Area Rivers State; and
(iii) A declaration that under Bonny native Law and Custom as applicable to Jumbo Major House, the 2nd Defendant and indeed the Defendants have no right or power to hinder or stop the plaintiffs in their functions and activities on behalf of Jumbo Major House of Grand Bonny Kingdom.”
On the 2nd of July, 2002, the Respondents filed their statement of claim wherein they amended the original Reliefs claimed in their writ of summons thus:
“WHEREOF the Plaintiffs’ claim jointly and severally against the Defendants as follows:
(1) A declaration that the 1st Plaintiff is still the Chief/Head of Jumbo Major House of Grand Bonny Kingdom in the Bonny Local Government Area of Rivers State and the purported resolution of 9th day of June, 2001 or any on thereto with regards to the said removal is null and void.
(2) A declaration that the Defendants either by themselves, servants, agents or privies have no right and power under Bonny native Law and Customs as applicable to Jumbo Major house to remove the 1st Plaintiff or to replace him as CHIEF and Head of Jumbo Major House of Grand Bonny Kingdom in the Bonny Local Government Area Rivers State.
(3) A declaration that under the Bonny Native Law and Custom as applicable to Jumbo Major House, the 2nd Defendant and indeed all the other Defendants, their servants, Agents or privies have no right or power to hinder or stop the Plaintiffs especially the 1st Plaintiff in his or their functions and activities on behalf of House including withdrawal of Money from all the Accounts of Jumbo Major House in different Banks especially DIAMOND BANK IKWERRE ROAD or collecting monies, cash or materials form Companies or (sic) behalf of the said House.”
The case proceeded to trial. Each party called their witnesses and tendered some documents as Exhibits. The Appellants called one witness whilst the Respondent called two witnesses. The learned trial judge after evaluating the evidence adduced before him both oral and documentary found for the Plaintiffs/Respondents and held thus:
“I have in the course of this judgment reviewed the facts of this case as presented by the witnesses, and findings of facts have been made thereon.
It is therefore my considered view that the claimants have proved their case as required by law.
Accordingly, judgment is entered in favour of the claimants and I order as follows…….”
All the reliefs claimed by the Plaintiffs/Respondents were granted by the learned trial judge.
Dissatisfied with the decision of the lower court, the Appellants approached this court and expressed their dissatisfaction by filing a notice of appeal which carries seven grounds of appeal and sought for the following “That the entire proceedings in the court below and the judgment thereof should be set aside, while the claimants, , Action should be dismissed for being incompetent.”
In accordance with the rules of this court, parties duly filed and exchanged briefs of argument. The Appellants, brief dated 27th November, 2009 was filed on the 30th November 2009. The Respondents’ brief dated 21st December, 2009 was filed the same date.
The Appellants filed a Reply Brief on 31st December, 2009.
From the seven grounds of appear, in a brief settled by D.A. Toby, two issues in the alternative were distilled for determination to wit:
“A) Taking into consideration summons/the pleadings of evidence adduced by the entire circumstance of the Respondents, Action not (Grounds A, B, C &D).
B) Taking into consideration summons the pleadings of the writ of the parties, the parties and the entire circumstance of the case, did the Honourable Court not lack the requisite jurisdiction to take cognizance of i.e. to embark on, hear and determine the Respondents’ Action? (Grounds A, B, C, D, G & H).
Alternatively,
C) Taking into consideration the writ of summons, the pleadings of the parties, the evidence adduced by the parties and the entire circumstance of the case, was the 1st Respondent not a chief-elect and if so, was he validly removed by the Jumbo Major House of Grand Bonny Kingdom? (Grounds G & H)
D) Taking into consideration the writ of summons, the pleadings of the parties, the evidence adduced by the parties and the entire circumstance of the case, should the Respondents’ Action not have been dismissed (Ground J).
For their part, in it brief settled by Dr. A Amuda -Kannike the ‘: Respondents distilled three issues for determination as follows:
(1) Whether the leaned Trial Judge have (sic) the jurisdiction to try the case at all at the lower court?
(2) Whether the 1st Respondent was validly removed as the chief/head of Jumbo Major House of Grand Bonny Kingdoms?
(3) Whether the case of the Respondents ought to have been dismissed by the learned Trial Judge?”
On the 19th of May, 2010 when the appeal came before us for hearing, learned counsel for the Applicants, Mr. D.A. Toby adopted his two briefs, the main brief and the reply-brief as his arguments in this appeal and urged us to allow same and set aside the judgment of the lower court.
Dr. A. Amuda- Kannike equally adopted his brief of argument for the Respondents and urged us to uphold the judgment of the lower court and dismiss the appeal with substantial costs.
Let me briefly comment on the Reply-Brief filed by the Appellants before I delve into the issues he formulated for determination. The purpose for which Reply-Briefs are meant is now well known and that is to answer or respond to new or fresh points raised in the Respondents brief. It is not an avenue through which or by which an Appellants should canvass or proffer further or repeat argument in support of an appeal on the pre of replying on points of law. See POPOOLA V. ADEYEMI (1992) B NWLR (PT. 257) P.1; ADEBIYI V. SORINMADE (2004) ALL FWLR (PT. 239) P. 933 and SHUIBU V. MAITHODA (1993) 3 NWLR (Pt. 284) p. 748. See also Order 17 Rules 5 of the Court of Appeal Rules, 2007.
Mere look at the Reply-Brief filed by the Appellants will certainly reveal the fact that it is not meant to answer or respond to new or fresh points raised in the Respondents’ brief. Far from it. The Appellants’ counsel used the Reply-Brief as an avenue through which he canvassed new points and in some instances repeated the arguments he had proffered in his main brief. It is apparent that the brief he filed cannot by any stretch of imagination be called a Reply-Brief. This being the case, consideration will not be given to the so called Reply-Brief in this appeal.
A hard look at the issues formulated for determination by both counsel, it is very clear that issue B formulated by the Appellants is almost identical with issue No.1 as formulated by the Respondents. Both issues are on whether or not the trial court had jurisdiction to hear and determine the suit filed by the Respondents. The alternative issue D is identical with issue No. 3 as formulated by the learned counsel for the Respondents.
In view of the above analysis, I am of the view that the controversies in this appeal can be effectively resolved by giving consideration to the issues formulated by either side. However, the issues as formulated by the Respondents are more apt and succinct; I shall therefore adopt them as issues calling for determination in this appeal
The first issue that calls for determination is whether the learned trial judge has the jurisdiction to try the case at all. On this issue, learned counsel for Appellants, submitted that from the totality of the averments in their statement of claim, it is clear that their cause of action accrued on the 9th of June, 2001 or alternatively on 13th December, 2001. He is of the view that it is the averments in their statement of claim and the reliefs claimed in the writs of summons that determine when the cause of action accrued to the Respondents.
He relied on the cases of FRED EGBE v. AEDEFARASIN (1987) ANLR l at 20; AYANBOYE v. BALOGUN (1990) 9 -10 SC 1 and THE MILITARY GOVERNOR of ONDO STATE AND ORS v. JAMES OLAGUNJI KOLAWOLE AND ORS (2008) 4 -5 SC 158 at 185.
It is his further submission that the Respondents’ cause of action did not mature or arise on either 31-05-2001, 09-06-2001 or 13-12-:2001 as no breach of any duty or act had occurred which would have warranted them (not being injured or adversely affected by any breach whatsoever) to take a court action in assertion or protection of their legal right that has not been breached.
Learned counsel contended that Respondents did not prove when their right or cause of action arose but the Appellant showed that the 1st Respondent was removed from the said office on either the 09-06-2001 and or 13-12-2001. It is his further contention that the Respondents’ cause of action is hinged and anchored on Exhibits A and K which removed the 1st Respondent from the said office and which had no nexus with the Appellants and neither made by them, and which the law will not recognize as giving the Respondents a substantive right to make claim for the relief or remedy they seek against the Appellants.
Learned counsel therefore submitted that taking into consideration the writ of summons, the pleadings of the parties the evidence adduced by the parties and the entire circumstance of that action, the trial court lacked the jurisdiction to take cognizance of, i.e. to, hear and determine the Respondents’ action for where proper parties are not before the court, the court is without jurisdiction to adjudicate. He relied on the case of OLORIODE v. OYEBI (1984) 1 SCNLR 390.
Learned counsel for the Appellants further submitted that parties cannot by conduct or action confer jurisdiction on the trial court which, in the circumstances of this case, was without it. Learned counsel held the view that the issue of jurisdiction can be raised at any stage of the proceedings and for the first time even on appeal. Learned counsel further held that before it can be raised the material giving rise to the complaint of absence of jurisdiction must be apparent on the face of the statement of claim. He referred us; to the case of T.O. OWOSENI v. JOSHUA FALOYE & ANOR (2005) 7 SC [pt.11] 79 at 105 – 106. We were urged to hold that the trial court has no jurisdiction to hear and determine the Plaintiffs/Respondents claim.
Learned counsel for the Appellants submitted that despite the provisions of Order 11 Rules 1 and 8 of the Old Rules, the Respondents neither sought the leave of the court below nor were they granted leave suo motu to bring the action in a representative capacity. All through the Record of proceedings, there has not been exhibited the authorization by the other persons, the principal members, elders and other members of the said House (the Jumbo Major House) to bring the Action in a representative capacity.
It is his further submission that the legal effect is that the Respondents on record sued for and on behalf of themselves. When an action is authorized at the time it was filed, a subsequent approval is like putting something on nothing and expecting it to stand. It can not be rectified, learned counsel opined. He relied on PLATEAU STATE OF NIGERIA & ANOR v. A.G. FEDERATION AND ANOR (2006) 1 SC [pt.1] 1 at 26 – 28. We were urged to resolve this issue in their favour.
On the other hand, learned counsel for the Respondents submitted that, the learned trial Judge has the jurisdiction to try the case at the lower court and that there exists no law or fact which inhibits the jurisdiction of the learned trial Judge. Learned counsel further submitted that, though it is true that when Exhibits A and L2 were made, the Respondents have already filed the writ of summons, Motion Exparte and the motion for interlocutory injunction but the statement op claim was not filed as at their. This according to the learned counsel, was because at that stage, the cause of action existing was the threat to depose the 1st Respondent as the Chief/Head of the Jumbo Major House of Grand Bonny Kingdom. It can also be seen on relief one of the writ of summon that the first Respondent was asking the lower court to declare that he is still the Chief/Head of Jumbo Major House.
Learned counsel referred to page 40 lines 16 – 21 of the records and submitted that the addition “(and the purported resolution of 9th day of June 2001 or any other one thereto with regards to the said removal, is null and void)”, which the Respondents have added in the statement of claim which supersedes the writ of summon does not change the cause of action nor produced a new cause of action.
It is the submission of the learned counsel that both the writ of summons and the statement of claim later filed by the Respondents are competent and the lower court was right to try the case on this basis.
Now, it is trite law that a cause of action is the entire set of circumstances giving rise to an enforceable claim. It arises from circumstances comprising variety of facts giving rise to a claim enforceable in a court of law. There must be a wrongful act of the Defendant which has injured or given the claimant a reason to file a suit or action in the court claiming damages therefrom. Having stated the law and all that as to what constitutes a cause of action, I shall now closely look at the circumstances of the matter in hand with a view to finding out whether or not at the time of filing the writ of summons processes a cause of action had arisen which necessitate the Respondents to seek redress in a law court.
Let me begin with the writ of summons dated and filed on the 31st day of May, 2001. The Respondents in the first paragraph of the endorsement claimed as follows:
“A declaration that the 1st plaintiff/Respondent is still the Chief/Head, of Jumbo Major House of Grand Bonny Kingdom in the Bonny Area of Rivers State.”
In yet another process a motion Exparte filed the same date, the Respondents, especially the 1st Respondent sought for an interim injunction restraining the Defendants/Respondents either by themselves, agents or privies from removing, suspending or destooling or interfering with his position and son on, pending the determination of the motion on Notice:.
The question that must be asked and answered at this stage is, whether in the light of the foregoing, a cause of action had not arisen which warranted the filing of the action in the court below as at 31st Day of May 2001 when the writ of summon was fired. In view of the circumstances comprising of variety of facts as adumbrated above I find no difficulty in answering the question posed in the affirmative.
That aside and more importantly the Respondents in their statement of claim dated and filed on the 2nd July, 2002 inter alia prayed thus:
(1) “A declaration that the 1st plaintiff is still the Chief and Head of Jumbo Major House of Grand Bonny Kingdom in the Bonny Local Government Area of Rivers State and purported resolution of 9th day of June 2001 or any one there to with regards to the said removal is null and void.”
It is instructive to state at this stage that the law is settled beyond dispute that a statement of claim supercedes a writ of summons. In the case of EZENWA V. OKO and OTHERS (2008) VOL .157 LRCN P, 230 at 243 it was held thus:
It is settled law that the statement of claim supercedes the writ of summons and that what is claimed in the writ but omitted in the statement of claim is deemed abandoned while what is not claimed in the writ but claimed in the statement of claim becomes the claim before the court though subject to the payment of appropriate filing fees where appropriate.”
See OTANIOKU V. ALLI (1977) 11-12 SC P. 9 AND Civil procedure In Nigeria by FILEDIS NWADIALO 2nd Edition, 1999 at p. 360, 2nd paragraph.
The point I have been struggling to make is that taking the entire circumstances of this case under consideration as highlighted above, it cannot be correct to say that the suit filed by the Respondents is incompetent and that the trial court has no jurisdiction to hear and determine the suit under consideration. This issue is resolved in favour of the Respondents and against the Appellants.
The 2nd issue for determination is whether the 1st Respondent was validly removed as the Chief/Head of Jumbo Major House of Grand Bonny. Learned counsel for the Appellants contended that when a chief has not been presented to Bonny Chiefs’ council, he still remains a Chief of the House, the person he further contended is only a Chief Elect within his own family caucus. Learned counsel submitted that all that he has stated is in accordance with the Bonny Native Law and Custom which he is used to.
It is also the contention of the learned counsel that the 1st Respondent did not have any resolution of the said House his alleged installation, unlike his predecessor in the said Dogogo William Jumbo.
Learned counsel therefore submitted that, taking into consideration the writ of summons, the pleadings of the parties, the evidence adduced a by the parties and the entire circumstance of the case the1st Respondent was a Chief-elect, at all times material to the Respondents, Action, until his removal from the said office on the 13th December, 2001 by the said House.
Learned counsel contended that the constitution of the said House does not make provisions for the appointment of a Chief – Elect but for Chief/Head of the said House. He referred us to Exhibit A, lines 14 -16 at P. 236 of the records and the evidence of DW1 under cross examination to buttress his submission on this point.
It is the submission of the learned counsel that the 1st Respondent was a Chief by Exhibit B, page 3, a Chief can be removed from the said office by 2/3 majority vote of the house members in the said Houses meeting. But since he was only a Chief-Elect, the said house can remove him, even through the council of Elders for misbehaviour. Learned counsel further submitted that the 1st Respondent was validly removed from the said office on 13-12-2001 by the said House through Exhibit L2.
Learned counsel cited the case of FRANCIS OBOBARANIMIBOFORI JUMBO Chief/Elect was removed form office through the council of Elders to support his submission on this point.
Learned counsel urged us to resolve this issue in their favour.
Learned counsel for the Respondents, for his part, submitted that the 1st Respondent was; not validly removed as the Chief/Head of Jumbo Major House of Grand Bonny Kingdom and that all act of the Appellants with respect to the said removal were unconstitutional, null and void being acts which were incomplete contravention of the constitution of the Jumbo Major House: of Grand Bonny Kingdom.
Learned counsel submitted that the contention of the Appellants that because the 1st Respondent is a “Chief-Elect that means the Jumbo Major House constitution does not save him from being removed is untainable. This is the learned counsel went on, because there exist ample evidence that the 1st Respondent is a properly installed chief of the Jumbo major House notwithstanding the fact that the word “Chief” and chief -Elect are inter-changeably used to describe him.
It is pertinent at this stage to pause and ask this question, can it be said from the evidence adduced by the Appellants that the 1st Respondent has been validly removed from office. Lest, I forget, the burden of proof is on them (Appellants) who are asserting that he (1st Respondent) was validly removed to prove so albeit on preponderance of evidence by dint of section 135 of the Evidence Act.
The only witness called by the Appellants, 2nd Appellant under cross-examination testified inter alia thus:
“The word chief/Head of Jumbo Major House and the word chief Elect as referred to the 1st claimant are interchangeably used even by me.”
The issue of whether the 1st Respondent is a “Chief/Head” of Jumbo Major House of Grand Bonny Kingdom or not was laid to rest by the Appellants themselves through the evidence of the same 2nd Appellant when he lied on oath by stating on one hand that the 1st Respondent was duly nominated and installed as the chief/Head of Jumbo Major House in accordance with the constitution but under fierce cross-examination, he agreed that he had previously in another suit deposed to an affidavit to the effect that the appointment and installation of the 1st Respondent was correct but that he lied. Hear him!!
“To the best of my knowledge the 1st claimant was not duly nominated and, installed as the Chief/Head of Jumbo Major House with our constitution and the Igbani Custom. I have deposed to an affidavit in the court before that the appointment and installation of the 1st claimant was in accordance with Bonny custom but it was wrongly deposed to by me. It was in suit NO PHC/1BB/2000. I had also stated in the said affidavit that what was remaining in respect of the 1st claimant installation was his presentation to the Amanyanabo but it was also wrongly done.”
The 2nd Appellant who is seen as testifying falsely on oath as adumbrated above ought to be sanctioned but since the law refrains from doing that in a civil case of this nature, what then happens to such evidence? The position of the law was succinctly put by the apex court in the case of FATUNBI v. OLANLOYE (2004) 6 -7 SC P. 68 at 77 as follows:
“…..when such evidence of a witness is so exaggerated and it enters into a realm of flamboyancy or recklessness and petulance or appears as an affront to reason and intelligence, no credibility ought to be accorded to it. (under lining mine for emphasis).
Again, in the case of EZEMBA V. IBENEME (2004) 7 SC (PT. 1) page 45 at page 56, paras. 11-14, the Supreme Court has urged us not to treat, a witness such as the 2nd Appellant as a truthful witness. The apex Court held thus:
“No witness who has given on oath two material inconsistent evidence is entitled to the honour of credibility. Such a witness does not deserve to be treated as a truthful witness.”
In the light of the foregoing, the learned trial judge was right to have referred the 1st Respondent as the Chief/Head of Jumbo Major House of Grand Bonny Kingdom and not as “Chief-Elect”.
On whether there was compliance with Jumbo Major House constitution with respect to the removal of the 1st Respondent as the Chief/Head of Jumbo Major House, the Appellants completely and blatantly failed to comply with the provisions of the said constitution in the purported removal or deposition of the 1st Respondent. This is so because under the constitution of the said House before a chief can be removed, there has to be a mass-meeting made by up of 2/3 of the House and not by representative as was done in the case in hand.
Learned counsel for the Appellants has made heavy weather of the removal of chief-Elect FRANCIS OBOBARARI-IBOFORI JUMBO by the council of Elders for misbehaviour. With respect due to the learned counsel, the same mode: of removal cannot be applicable to the 1st Respondent because;
i) Chief Elect Francis OBOBORORI-IBOFORI did not contest his removal in a court of law.
ii) He was said to be a Chief-Elect and not a substantive chief as it is the case of 1st Respondent.
iii) The constitution of Jumbo Major House was not and has never been tested to judicial interpretation before even in the case of Late Chief Sir. A. D. Willam Jumbo until now which makes the understanding of the said constitution clearer and understood.
iv) The fact that an illegal act was done and not challenged in law does not make the illegal act to become legal.
This issue, like the previous issue in the light of all that has been said supra is resolved in favour of the Respondents and against the Appellants.
Last but not the least issue for determination is issue No. 3 which is whether the case of the Respondents ought to have been dismissed by the learned trial judge. Learned counsel for the Appellants after adopting his arguments on issues A, B and C urged us to dismiss the Respondents’ Action. Learned counsel is of the view that where full hearing of a case is taken to its logical conclusion, and the claim or relief is found to be lacking in merit the consequential order that follows is that of dismissal of the claim or relief. He relied on the case of OKPALA V. IBEME (19180) 3 SC (PT.1) P. 61.
Learned counsel for the Respondents submitted that the Respondents’ case ought not to have been dismissed by learned trial judge because the evidence adduced by them was uncontradicted and unchallenged in contradistinction to the evidence of the Appellants led by the 2nd Appellant which showed not only that his evidence is contradictory, challenged, unmeritorious but also shows that the 2nd Appellant is a liar and his evidence can not be relied upon.
A hard look at the judgment of the lower court will reveal the fact that the learned trial judge meticulously and correctly evaluated the evidence before him and found the case of the Appellants unreliable and thereafter concluded thus:
“Issue No. 4 is whether the claimants have proved their case to entitle them to the judgment of the Court. In civil cases, the burden of proof lies on the person who asserts the existence of a fact for he who asserts must prove. The standard of proof is on the preponderance of evidence and balance of probability. I have in the course of this judgment reviewed the facts of this case as presented by the witnesses and findings of fact have been made thereon.
It is therefore my considered view that the claimants have proved their case as required by law.
Accordingly, judgment is entered in favour of the claimant….”
It can also be said from the totality of the evidence adduced by both parties; the following findings can be made;
i) The Jumbo Major House constitution required 2/3rd members of the house in a mass meeting before the 1st Respondent can be perfectly removed but this was not complied with.
ii) The only witness of the Appellants incidentally the 2nd Appellant is a pathological liar and his contradictory evidence are unreliable as he even admitted being a liar under oath when he admitted swearing to an oath falsely.
iii) The 1st Respondent is a chief and not Chief – Appellant while testifying agreed that the word “Chief/Head of jumbo Major house and chief-Erect are interchangeably used to describe the 1st Respondent.”
In the light of the above, this issue is also resolved in favour of the Respondents and against the Appellants.
In sum, with all the three issues resolved in favour of the Respondents, this appeal must be and it is hereby dismissed as lacking in merit with N50,000.00 (fifty Thousand Naira ) costs in favour of the Respondents.
ISTIFANUS THOMAS. JCA: I read in advance the draft of the judgment of my learned brother, TIJJANI ABDULLAHI, JCA just delivered. I entirely agree on the issues determined by his Lordship and the appeal is dismissed by me for lacking in merit. His Lordship covered the findings of the trial judge in respect of the purported removal or dethronement of the 1st plaintiff now respondent. I can not add more on the lead judgment, and I adopt it as mine.
I abide with consequential orders including costs.
EJEMBI EKO. JCA: I read in draft the judgment just delivered by my learned brother, TIJJANI ABDULLAHI, JCA. I agree with this analysis and conclusions on the issue in the appeal.
The appellants argued erroneously that at the time the writ of summons was taken out on 31st May, 2001 no cause of action vested in the plaintiffs, now the respondents; and that the totality of the averments in the statement of claim shows that the cause of action accrued only on 9th and 13th days of June, 2001. The arrow heard of this argument is that the plaintiffs’ suit was pre-mature, the cause of action having not ripened before the suit was filed, and therefore the suit was not competently before the trial court.
As at 31st May 2001 the threat of the imminent deposition of the 1st plaintiff as the incumbent chief was real and sufficient to sustain the filing and maintenance of the suit to arrest the imminent deposition. A good cause of action is determined when the writ and the pleadings had been filed: KUSADA v. SOKOTO N.A. (1968) 1 ALL NLR 377. The apex court held in SAVAGE v. UWAECHIA (1972) 3 SC 314 that the cause of action is the entire set of facts or circumstances which gives rise to an enforceable claim. A factual and real threat to depose an incumbent chief or clan head unlawfully try a clique, as alleged by the plaintiffs, is one of such sets of facts or circumstances which will give rise to an enforceable claim as the claim of the plaintiffs in this appeal.
The appellants, the defendants at the court below, also argue that it was wrong for the plaintiffs to have, in the statement of claim, elongated the cause of action to the events that happened after the writ was taken out and before the statement of claim was eventually filed. The event that happened after the writ was taken out was the purported removal of the 1st plaintiff/respondent as the chief or clan head of Jumbo Major House of Bonny evidenced by Exhibit A of 9th June 2001 and Exhibit L2 of 13th June 2001. These events confirm the threat and circumstances that informed the plaintiffs to take out the writ. It is trite that the statement of claim supercedes the writ of summons. The law also frowns at multiplicity of actions between the same parties over the same issue. I do not think the plaintiffs acted in foul of the rules of practice or procedure to have elongated the claim from mere threat to depose the 1st plaintiff to the eventual purported deposition of the 1st plaintiff as the chief or clan heal of Jumbo Major House. ‘The practice saves trial by installments and it is good for economy of time of the adjudicating body.
The appellants did also argue in this matter suggesting that failure to seek and obtain leave of the trial court before the suit was either commenced or defended in a representative capacity renders the suit incompetent; over the years judicial authorities regard the issue as a matter of mere convenience and have relaxed the rule:
ANATOGU v. AG, ECS (1976) 11 SC 109, and BODE v. OREWERE (1982) 1 – 2 SC 170, had held that it is not a matter of strict law requiring strict compliance but one to be treated with flexibility: BUSARI v. OSENI (1992) 4 NWLR (Pt.237) 557. Failure to seek and obtain leave before the suit is commenced or defended in a representative capacity does not vitiate the proceeding. Even at the appeal court, once the pleading and evidence show that the parties fought their case in a representative capacity, judgment can be entered in that capacity. AFOLABI v. ADEKUNLE (1983) 2 SC 98.
I notice that challenge to the capacity the defendants/appellants were defending the suit was not raised as a preliminary objection. The challenge to the capacity the suit was brought or defended is; usually by way of preliminary objection and not by way of defence, or belatedly on appeal: BUSARI v. OSEINI (supra); IFONWU v. EGBUJI (1982) 9 SC 145.The appellant’s are not on firm grounds on this issue of representative capacity’. Even if the suit does not lie against the defendants in representative capacity; it lies against them, particularly the 2nd Defendant who is the secretary of the ruling house and who adopted Exhibits A and L2, individually.
On the merits of the case: the appellants, as defendants, admitted in their statement of defence that they were served the writ of summons and that out of annoyance for the plaintiffs’ audacity to have sued them, they resolved to depose the 1st plaintiff on 9th and 13th June, 2001 respectively vide Exhibits A and L2. The 2nd Defendant, as DW.1, confirmed this fact that the defendants wore aware of the pendency of this suit before the 1st plaintiff was purportedly removed on deposed as the Chief of Jumbo Major House of Bonny.
The learned trial Judge found, correctly, that the purported removal or deposition of 1st plaintiff was not in compliance with the constitution of the ruling house. With or without the said Constitution, the defendants could not foist a situation of complete helplessness on the trial court by effecting the deposition, as was done in Exhibits A and L2, pendete lite and upon becoming aware of the suit. By the doctrine of lis pendens actions or steps take by a party, during the pendency of a suit, which are calculated to prejudice or overreach the adversary in the suit are void: see AIUWON v. AKANNI (1993) 9 NWLR (Pt.316) 82 at 197 – 198; OSHINOWO v. NATIONAL BANK OF NIGERIA LTD (1998) 11 NWLR [Pt.574], All actions or resolutions taken in Exhibits A and L.2, respectively on 9th and 13th June,2001, not only during the pendency, but also upon the defendants becoming aware, of the suit, the subject of this appeal, were therefore void.
Still on the merits of the appeal – there is no doubt that the DW.1, the 2nd Defendant in the suit, was a self-confessed incorrigible liar. The learned trial Judge rightly did not give his evidence the honour of any credibility.
The appeal lacks; substance. I hereby adopt the lead judgment, including all the consequential orders and costs.
The appeal is hereby dismissed.
Appearances
D. A. Toby with D.E. Onyilibe Esq.For Appellant
AND
Dr. A. Amuda-KannikeFor Respondent
