SIR CHARLES O. NWAIWU & ORS v. GOVERNOR OF IMO STATE & ORS (2013)

SIR CHARLES O. NWAIWU & ORS v. GOVERNOR OF IMO STATE & ORS

(2013)LCN/5997(CA)

In The Court of Appeal of Nigeria

On Friday, the 1st day of March, 2013

CA/PH/64/2005

RATIO

LOCUS STANDI: DEFINTION

Now, the concept of the locus standi simply means a place of standing; that is the legal capacity to institute an action in a court of law. The locus standi of a person to sue is therefore a condition precedent to the determination of a suit on its merits. In its legal application, it connotes the legal right which a person has to file or bring an action or be heard in a court of law.PER HARUNA SIMON TSAMMANI, J.C.A

LOCUS STANDI: WHEN A PARTY CAN BE SAID TO HAVE LOCUS STANDI

It is therefore the law that, a party will have the locus standi in a matter, only when he has special legal right or sufficient interest in the performance of a duty sought to be enforced or where his interest has been or will adversely be affected by the act or omission of another. In that respect, the Plaintiffs claim (s) must disclose:
(a) a legal or justiciable right;
(b) sufficient or special interest which has been or will be affected;
(c) a justiciable cause of action;
between him and another person. See AROWOLO v. OLOWOOKERE (2011) 18 NWLR (Pt 1278) p.280; BEWAJI v. OBASANJO (2008) 9 NWLR (Pt 1093) p.540 TABIOWO v. DISU (2008) 7 NWLR (Pt. 1087) p.533 and ADETONA v. ZENITH INT’L BANK PLC (2011) 18 NWLR (Pt 1279) p.627. What constitutes a legal right, sufficient or special interest, or interest adversely affected always depends on the facts of each case. See SEHINDEMI v. GOV; LAGOS STATE (2006) 10 NWLR (Pt 987) p.1.PER HARUNA SIMON TSAMMANI, J.C.A

LOCUS STANDI: BURDEN OF PROOF WHERE THE LOCUS STANDI OF A PLAINTIFF HAS BEEN CHALLENGED

It is therefore the law that, where the locus of a Plaintiff to institute an action has been challenged, a burden or duty will be cast on the Plaintiff to show that he has the locus standi. He satisfies that burden by showing that his civil rights and obligations have been or are in danger of being infringed upon. In other words, the Plaintiff must establish a nexus between him and the cause of action, which has adversely affected his civil rights and or obligations.PER HARUNA SIMON TSAMMANI, J.C.A

LOCUS STANDI: IS JURISDICTIONAL IN NATURE

The issue of locus standi is one of jurisdiction and therefore a point of law. It cannot therefore be raised in limine.PER HARUNA SIMON TSAMMANI, J.C.A

LOCUS STANDI: DOCUMENTS THAT MUST BE LOOKED INTO IN ORDER TO DETERMINE WHETHER OR NOT A PARTY HAS LOCUS STANDI

Generally, in law, the issue whether or not a Plaintiff has locus standi is determined by examining only the statement of claim. In other words, it is the averments in the statement of claim and writ of summons (where no statement of claim has been filed), that are the material mainly required by the court to ascertain the locus standi of a Plaintiff. It means that, it is the statement of claim or the writ of summons that are the materials relevant in the consideration of the issue of locus standi of a Plaintiff. That position is however not an inflexible principle of law, as there may be circumstances wherein the question of locus standi cannot be resolved on the Plaintiffs claim alone. Such circumstance is permitted by order 24 Rules 2 and 3 of the Imo state High court (Civil Procedure) Rules, 1988.It stipulates that:
“Order 24………
2. Any party shall be entitled to raise by his pleading any point of law, and any points so raised shall be disposed of by the Judge who tries the case at or after the trial: provided that by consent of the parties; or by order of the Court or a Judge on the application of either part, the same may be set down for hearing and disposed of at any time before trial.
3. If, in the opinion of the Court or a Judge the decision of such point of law substantially disposes of the whole action or of any distinct cause of action, ground of defence, set – off, counter claim, or reply therein, the Court or Judge may thereupon dismiss the action or make such other order therein as may be just.”
It would be seen that the powers granted a trial court under the above stated Rules of Court are wide indeed.
By the said order 24 Rules 1 and 2 of the Imo State High Court (Civil Procedure) Rules (supra), any of the parties is at liberty to raise a point of law in his pleading, and thereafter apply to the court to have that point of law so raised, to be set down and be heard either before or during the trial. In other words, a point of law being one of jurisdiction cannot be raised and determined in limine. A party who wishes to raise the point of law must have pleaded the point in his pleading, before seeking the indulgence of the Court in accordance with order 24 rules 2 and 3 of the Imo state High Court Rules (supra). If it is the Defendant who wishes to raise the point, it would be obligatory for him to file a statement of defence in which he will raise the objection, because demurrer has been abolished by Rule 1 of Order 24 of the Imo State High Court (Civil Procedure) Rules, 1988.PER HARUNA SIMON TSAMMANI, J.C.A

LOCUS STANDI: IN CHALLENGING LOCUS STANDI, THE DEFENDANT MUST STATE IT IN HIS PLEADINGS

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

TIJJANI ABUBAKAR Justice of The Court of Appeal of Nigeria

Between

1. SIR CHARLES O. NWAIWU (KSC)
2. ORJI UGWUEGBULEM
(For themselves and as representing members of Umuihi Town Union).
3. NZE SAMPSON OGOKE
4. NZE EPHRAIM AZUBUIKE
(For themselves and as representing Members of Umuihi king Makers/Cabinet)
5. CHIEF EMMANUEL U. OKORIE
(Eze Elect of Umuihi Autonomous Community). Appellant(s)

AND

1. GOVERNOR OF IMO STATE
2. ATTORNEY- GENERAL OF IMO STATE
3. CHAIRMAN, IHITTE/UBOMA LOCAL GOVERNMENT AREA.
4. CHIEF ROBERT NDUKWE Respondent(s)

HARUNA SIMON TSAMMANI, J.C.A (Delivering the Leading Judgment): This is an appeal against the decision of I.O. Agugua; J of the Imo State High Court sitting at Etiti delivered on the 22nd day of March, 2004 wherein the Learned trial Judge struck out the Plaintiff/Appellants’ statement of claim and consequently, dismissed the Suit in HME/17/2002 as being incompetent.
The Appellants’ claim as Plaintiffs before the lower court as stated in paragraph 35 of the statement of claim (pages 122-123 of the records) are as follows:
“35. Whereof the Plaintiffs claim against the Defendants jointly and severally as follows:
1. A declaration that the members of Umuihi King makers/ Cabinet are entitled to Identify, elect, select, appoint, install, and present the Eze of Umuihi Autonomous Community and/or to put in motion machinery for identification, election, selection, installation and presentation of the Eze of Umuihi Autonomous Community to the third Defendant.
(b) A declaration that the 1st to 4th Plaintiffs are entitled to present the Eze Elect of Umuihi Autonomous Community to the Chairman Ihitte/Uboma Local Government (3rd Defendant) and/or to put in motion the machinery for the presentation of the Eze Elect of the Umuihi Autonomous Community to the Chairman Ihitte/Uboma Local Government.
(c) A declaration that the 5th Plaintiff has been duely (sic) identified, elected, selected, appointed, installed in accordance with the custom and tradition of the people of Umuihi and presented to the Chairman Ihitte/Uboma Local Government (3rd Defendant) as the Eze of Umuihi Autonmous Community.
(d) A declaration that the 5th Plaintiff having been duely (sic) presented by the people of Umuihi Autonomous Community to the 3rd Defendant but is entitled to be recognized by the 1st Defendant as the Eze of Umuihi Autonomous Community.
(e) A declaration that the 4th Defendant is not entitled, under custom and tradition of the people of Umuihi Autonomous Community, to apply and/or to be elected as the Eze of Umuihi Autonomous Community.
(g) Injunction restraining the 1st Defendant, his servants, agents or workers from recognizing the 4th Defendant as the Eze of Umuihi Autonomous Community.
(h) Injunction restraining the 4th Defendant from parading and/or allowing himself to be paraded as the Eze of Umuihi Autonomous Community.
Based upon the above stated claims of the Plaintiffs/Appellants, the Defendants/Respondents proceeded to file statements of defence. The 1st and 2nd Respondents filed a joint statement of defence which is contained at pages 183 – 186 of the record of appeal. They however filed an Amended Statement of defence as contained at pages 250-256 of the records. The 4th Respondent also filed a statement of defence which is contained at pages 237 – 239 of the record of appeal. The 3rd Respondent had not filed any statement of defence. Before hearing in the case could commence, the 1st and 2nd Respondents filed a motion on Notice pursuant to Order 8 Rules 1, 2 and; Order 11 Rule 1, and Order 47 Rule 1 of the Imo State High Court (Civil Procedure) Rules, 1988, And Section 15 of the Imo State Traditional Rulers and Autonomous Communities Law, No. 3 of 1999. The said Motion which was by way of a Preliminary Objection prayed as follows:
“This Suit should be struck out as being statute barred, premature and no cause of action is disclosed in the action:
GROUNDS UPON WHICH OBJECTIONS ARE BROUGHT
1. The only contestant for the Traditional Ruler ship of the Community with the 4th Defendant, the 5th plaintiff has no locus standi to contest.
2. The action is premature as the action involves the exercise of statutory function which has not been exercised.
3. No cause of action has been disclosed in this action.
4. The action is statute barred in that it was not commenced within 21 days of the recognition of the 4th Defendant by the 1st Defendant.
5. The action was wrongly brought by way of writ of summons.
The Motion was supported by an affidavit of 19 paragraphs to which were annexed 12 exhibits marked “A”-“L”. The Applicants also filed a further Affidavit of 12 paragraphs to which they annexed 3 exhibits, marked as “M”, “N” and “O” respectively. See pages, 197 – 219 of the record. The 5th Defendant/Appellant filed a counter affidavit of 20 paragraphs in opposition to the preliminary objection to which he attached three (3) exhibits marked “A”, “B” and “C” respectively.
The Motion was duly argued, and in a considered Ruling delivered on the 22nd day of March, 2004, the Learned trial Judge allowed the Preliminary Objection, mainly on the ground that the 5b Defendant/Appellant lacked the necessary locus standi to sustain the suit, and consequently dismissed same. The Appellants being dissatisfied with that ruling of the Court below have now filed this appeal.
The Notice of Appeal which is dated the 20/4/2004 and filed the 21/4/2004, consisted of six (6) Grounds of Appeal. However, by leave of this Court granted the 19/4/2007 vide Motion on Notice dated 23/5/05 and filed the same day, the Appellants filed Additional Grounds of Appeal. In all therefore, the Appellants filed ten (10) Grounds of Appeal. To properly situate the Grounds of appeal filed in this appeal, I hereunder reproduce those Grounds but without their particulars. They are:
“1. The Learned trial Judge erred in law by holding that exhibit “Q” of the supporting affidavit attached to the motion of the Defendant is a conclusive proof of the creation of Ihinna Autonomous Community when in the face of it, exhibit Q is complete violation of Sections 14 & 23 (1) & (2) of Imo State of Nigeria Traditional Rulers and Autonomous Communities Law No. 3 of 1999.
2. The Learned trial Judge erred in law by dismissing the Plaintiffs’ claims on the grounds that same has been defeated by the creation of Ihinna Autonomous Community when the Plaintiffs’ claim or substantial part of it has nothing to do with the creation of Ihinna Autonomous Community.
2. The Learned trial Judge erred in law by holding that Ihinna
3. Autonomous Community has been created when there was no such creation in Law.
4. The Learned trial Judge erred in law by holding that the Plaintiffs’ claim is predicated on who between the 4th Defendant and 5th Plaintiff is entitled to be the Eze of Umuihi Autonomous Community.
5. The Learned trial judge erred in law by holding that Exhibit “L” is a prima facie evidence of the fact that the 4 Defendant has been recognized as the Eze of Umuihi Autonomous Community when on the face of it exhibit “L” provided no such evidence.
6. The Learned trial Judge erred in law by holding that the 4th Defendant has been recognized as the Eze of Umuihi Autonomous Community without making a specific finding as to whether the 4th Defendant was duly elected, selected and presented by the people of Umuihi.
7. The Learned trial Judge erred in law when he held that the 5th Plaintiff has no locus standi to sustain the suit.
8. The Learned trial Judge erred in Law when he held as follows:
“Even if they have the locus standi (sic), since the whole Suit is predicated on who between 4th Defendant and 5th Plaintiff who is entitled to be the Eze of Umuihi, it is my view and I so hold that the creation of Ihinna pulled rug from under their feet….. In the final analysis, I hold that the 5th Plaintiff has no locus standi to sustain this Suit. The creation of Ihinna Autonomous Community totally destroyed the Plaintiffs cause of action on this Suit.”
9. The Leaned trial judge erred in law when he held thus:
“4 Defendant having been recognized by the 1st Defendant as the traditional Ruler of Umuihi Autonomous Community, this suit as constituted and as per claim is not the rightful challenge to this executive act. The Plaintiffs can if the (sic) wish to challenge that act but in a way prescribed by Law.”
10. The Learned trial Judge erred in law in dismissing the case when the Suit did not proceed to hearing and was not heard or determined on the merits.”
As prescribed by the Rules of this Court, the parties filed and exchanged Briefs of Arguments. The Appellants’ Brief of Argument is dated the 23/5/2005 and filed the 23/11/2005. It was deemed filed the 19/4/2007. Therein the Appellants nominated three (3) issues for determination as follows:
1. Was the Learned trial Judge right in dismissing this action on 1st and 2nd Defendants’ Preliminary Objection that the claim is statute bared, premature and no cause of action is disclosed in the action?.
2. Was the Learned trial Judge right to raise the issue of the creation of Ihinna Autonomous Community and to use the existence or creation of Ihinna Community as a basis for upholding the objection that Plaintiff lacked locus?
3. Was the Learned trial Judge right when he dismissed Plaintiffs’ Suit in limine?.
The 1st and 2nd Respondents filed a joint Brief of Argument. It is dated the 21/4/2008 and filed the, 22/4/2008. Four issues were distilled by the 1st and 2nd Respondents from the ten (10) Grounds of Appeal for determination as follows:
1. Whether the trial Court was right in holding that there exists in Imo state in Ihitte/Uboma LGA an Autonomous Community known to Law as Ihinna Autonomous Community.’
2. Whether the trial Court was right in holding that the 5th Plaintiff who is an indigene of Ihinna autonomous community no longer had the locus standi to sustain the cause of action in this Suit.
3. Whether the Honourable court had jurisdiction to entertain the suit, same being statute barred and for non issue of pre-action notice.
The 3rd and 4th Respondents Brief of Argument filed on the 11/04/08 was dated the same day. It was deemed filed the 16/4/08. However, the said 3rd and 4th Respondents’ Brief of Arguments was refilled on the 13/9/2012. It was dated the 12/9/2012. Therein, three issues were formulated by the 3rd and 4th Respondents for determination as follows:
1. Whether this action is statute barred, premature and disclose no cause of action?
2. Whether the Learned trial Judge cannot take judicial notice of the creation of Ihinna Autonomous Community out of Umuihi Autonomous Community; in determining the cause of action and the Plaintiffs’ locus standi in this action?.
3. Whether Learned trial Judge was not right in law to dismiss the action on the basis of a successful Preliminary objection to the cause of action and the Plaintiffs’ locus standi.
It would be seen that save for the issues three (3) in each of the 1st and 2nd and 3r & 4th Respondents’ Briefs of Arguments, which are similar in con, the 1st and 2nd issues nominated by each of the groups of Respondents correspond with the 1st and 2nd issues formulated by the Appellants, though couched in different words. In that respect, I shall determine this appeal on the two issues formulated by the Appellants. I shall then consider the 3rd issue raised by each of the group of Respondents’.
Before I proceed, I wish to point out that the Appellants filed Reply Briefs of Arguments in response to the Briefs of Arguments filed by the Respondents. The Appellants’ Reply Brief in response to the 1st and 2nd Respondents’ Brief of Argument is dated the 19/5/08 and filed the same day. The Appellants’ Reply to the 3rd and 4th Respondents’ Brief was dated and filed the 30/04/08. It was amended vide the amended Appellants’ Reply Brief to 3rd and 4th Respondents’ Brief dated the 20/11/08 and filed the same day, by leave of this Court granted the 12/05/2010. It was further amended by leave of this Court granted the 9/5/12. The further Amended Appellants’ Reply Brief in response to the 3rd and 4th Respondents’ Brief of Arguments is dated the 16/05/2012 and filed the same day by leave of Court as stated above.
I also find it pertinent to point out at this juncture that, the 3rd and 4th Respondents filed a notice of Preliminary Objection, which they argued at pages 5-16 of the 3rd and 4th Respondents’ Brief of Argument. The said Notice of Preliminary Objection was dated the 11/04/08 and filed the same day. The Grounds upon which the objection is based are:
“1. This Honourable Court has no jurisdiction to countenance or take cognizance of the Notice of this Appeal filed in contravention of the provisions of Section 25 (2) (a) of the Court of Appeal Act (As Amended) and Section 242 (1) of the 1999 Constitution.
2. All the grounds of appeal were filed in contravention of the provision of Section 14(1) of part two of the Court of Appeal Act, 2004 (As Amended) and order 7 Rule 2 of the Court of Appeal Rule, 2007 (As Amended).
3. The Suit which gave rise to this appeal was not initiated by due process of law and upon fulfillment of the condition precedent of pre-action Notice to the 3rd Defendant/Respondent as mandatorily required by Section 164 (1) & (2) of Imo State Local Government Administration Law No. 15 of 2000 (As Amended).
4. The filing and arguing of the additional grounds of Appeal together with the Original grounds of Appeal by the Appellants without service of Notice of Motion of the Additional grounds of Appeal on the 36 and 4th Respondents has breached the 3rd and 4s Respondents’ right of fair hearing and therefore a nullity in law.”
Considering that the Notice of Preliminary Objection contests or challenges the competence of the appeal itself I shall proceed to determine same first. It would be seen therefore that the 3rd and 4th Respondents’ objection is premised on four (4) Grounds.
On the first ground for the objection, Learned Counsel for the 3rd and 4th Respondents contended that, the present appeal arising from the exercise of the trial Court’s discretion, is an interlocutory decision, in which the claims and rights of the parties to the Suit have not been completely and conclusively decided upon or determined with finality. Relying on the cases of FALOLA v. U.B.N PLC (2005) 7 N.W.L.R (Pt. 924) P. 405, IWUEKE v IMO BROADCASTING CORP. (2005) 17 NWLR (Pt. 955) p.447 and KHALIL v. YAR’ADUA (2003) 49 WRN p.50, Learned Counsel submitted that, by the provision of Section 242 (1) of the 1999 Constitution of Nigeria, it is mandatory for an Appellant in an interlocutory appeal, or where the grounds of appeal as in the instant case, are of mixed law and facts, to seek and obtain leave of the trial or Appellate Court before filing the Notice and Grounds of Appeal.
Learned Counsel went on to submit that, in determining whether a ground of appeal involves questions of law alone, the epithet, name or description given to the ground is not relevant, but the content of the ground and the particulars would be a decisive factor. He relied on the cases of ABBEY v. ALEX (1999) 3 NWLR (Pt 198) p.459 at 461; OJOMEN v. MOMODU (19S3) SCNLR p. 188 and UNILAG v. OLANIYAN (1985) 1 NWLR (Pt.1) p.156, to further submit that, the grounds of appeal and their particulars in this appeal, are not grounds of law alone, but are at best grounds of mixed law and facts, and therefore require the leave of either the trial Court or the Court of Appeal. That the Appellants did not seek or obtain leave of either the trial Court or the Court of Appeal before filing the Notice and Grounds of Appeal. The case of ALIYU v. IBRAHIM (1997) 2 NWLR (pt. 489) p.471 AT 582 was cited in support.
The second leg of this ground of objection is that, by Section 25 (2) (a) of the Court of Appeal Act, 2004, for the Appellants to effectively and properly exercise their right of appeal without seeking the leave of Court, the Notice and Grounds of Appeal must be filed within 14 days from the date of the decision, where the appeal involves questions of law alone. That the decision of the trial Court was on the 22/3/04, while the Notice of Appeal was filed on the 21/4/2004, which is far beyond the 14 days permitted by Section 25 (1) (a) of the Court of Appeal Act (supra). It was then contended that, Notice of Appeal filed is therefore in competent and liable to be struck out. The cases of E. D.C (NIG) v I.C. (NIG) LTD (1996) 14 NWLR (Pt 424) p. 316, AUTO IMPORT v. ADEBAYO (2003) FWLR (Pt. 140) p. 1686 at 1690 (ratio 1). UNICAL & ANOR v DR. UKOHA OBASI OJI (2011) ALL FWLR (Pt.595) p.388 at 390-391 were cited in support. That the ruling of the trial Court on the 22/3/2004, which is the decision the Appellants appeal against, determined to finality the rights of the parties on the question of whether or not Suit No. HME/17/2003 is tenable in law, but was not meant to and did not determine the rights of the parties to the Suit, and therefore the order granted therein is interlocutory. The case of TUNJI GOMEZ & ANOR V. CHERUBIM & SERAPHIM SOCIETY & 4 ORS (2009) ALL FWLR (Pt.477) p.1 was also cited to further submit that, where the nature of the application does not aim at finally determining the claim or claims in dispute between the parties but only deals with an issue, both the application and the order or judgment must be interlocutory, and therefore require leave of court to appeal against it.
It is also submitted by Learned Counsel for the 3rd – 4th Respondents that, the general principle as established in all the cases decided by the Supreme Court is that, where the decision does not finally determine the issue or issues between the parties or does not at once affect the status of the parties for whichever side the decision is given, it is interlocutory. That, in other words, a decision between the parties can only be regarded as final decision when the determination of the Court disposes of the rights of the parties in the case. It was therefore submitted that, the ruling of the Court below appealed against is interlocutory, for which no leave of court was sought and obtained before filing same. We were then urged to strike out this appeal which was not treated as an interlocutory appeal and therefore no leave of Court was sought and obtained, the grounds not being grounds of law alone. Related to ground one of the objection above, the 3rd and 4th respondents also contended in the Ground Two of the objection that, the decision of the trial Court which is the subject matter of this appeal, was purely an exercise of discretion, which leave is a sine qua non. That Section 14 (1) of the Court of Appeal Act, 2004, and Order 7 Rule 2 of the Court of Appeal Rules, 2007, envisage the seeking and granting of leave to any prospective Appellant, before any valid appeal can be filed. That since the present appeal was filed without the required leave, all the grounds of appeal are invalid, null and void. It was therefore submitted that, there is consequently no valid appeal before this Court for which the Court can exercise its jurisdiction. We were accordingly urged to dismiss the appeal for being an abuse of Court process.
Learned Counsel for the Appellants contended that the fundamental and primary question to be determined here, is whether the decision of the court below giving rise to this appeal is an interlocutory or a final decision. To answer that question, Learned Counsel posited that, there are two tests for determining whether a decision is final or interlocutory. That they are; the nature of the application test and the nature of the order made test. The case of AKINSANYA v. U.B.A. PLC (1986) 17 N.S.C.C. (pt. 11) p. 968 at 978 lines 22-32 Per ESO, JSC was referred to. Based on the legal position as propounded by ESO, JSC (of blessed memory) in the case cited above, Learned Counsel submitted that, the Appellants’ action was dismissed by the Court below and therefore the issues before it were brought to an end, and that the Court below having not made any further reference of any issue in the case to itself after dismissing the Suit, its decision is final, and not an interlocutory decision. That this appeal is therefore an appeal against the final decision of the Court below sitting as a Court of first instance within the ambit of Section 241 (1) (a) of the Constitution of the Federal Republic of Nigeria 1999, and therefore, the Appellants’ appeal against it, is as of right. The case of TECHNO MECH (NIG.) LTD v. OGUNBAYO (2000) 14 NWLR (Pt. 639 p. 150 at 165 para. E was cited to submit that the leave of either the Court below or of this Court is not required before the Appellants can file the Notice of Appeal, whether or not the appeal involves questions of law alone, or of mixed law and facts, or purely of facts.
It was further contended for the Appellants that, being a final decision the time allowed the Appellants to appeal against the decision is by Section 24 (2) of the court of Appeal Act, 2004 which is three (3) months, and not fourteen (14) days. That the Notice of Appeal which was filed on the 21/4/2004 against the decision of 22/3/2004, was filed well within time. That, the 3rd and 4th Respondents’ Learned Counsel missed the point when he contended that being an exercise of discretion by the lower Court in coming to the decision appealed against, leave was a sine qua non. Learned counsel then submitted that once the decision appealed against is a final decision of a High Court sitting as a court of first instance, as in the instant case, the appeal against it is as of right, irrespective of whether or not the grounds of appeal are all of facts or of mixed law and facts, or that the appeal arose from exercise of discretion of the trial High Court.
In the determination of this issue or objection on this ground, I find it necessary to reiterate the fact that, it is the Constitutional right of every party to a proceeding, whether criminal or civil, to appeal any decision of the trial court, or the appellate Court (as in the case of the Court of appeal) against which he is dissatisfied. That right is donated by the Constitution. The right of appeal is however governed by the provisions of Sections 241, 242 and 243 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), in the case of an appeal to the court of Appeal from the final or interlocutory decision of the Federal and state High courts. The relevant Rules of court are equally germane to a determination of the competence of an appeal. For the purposes of this appeal, I will restrict myself to the provisions of sections 241 (1) (a) and (b) and 242 of the 1999 constitution (supra). To enable me follow the issue better, I find it pertinent to reproduce those provisions a non. By those provisions, it is provided that:
“241 (1) – An appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right in the following instances:-
(a) Final decisions in any civil or criminal proceedings before the Federal High Court or a High Court sitting at first inst
(b) Where the ground of appeal involves questions of law alone, decisions in any civil or criminal proceedings;
242 (1) – subject to the provisions of section 241 of this constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with leave of the Federal High Court or a High Court to the Court of Appeal with leave of the Federal High Court or that High Court or the Court of Appeal.”
From the above stated provisions of the constitution, the first issue to be considered is whether the decision giving rise to this appeal is final or interlocutory. The question whether an order or judgment is final or interlocutory is one which has agitated the minds of the judges in the country over the years. What emerges from the decided cases would appear to be that, a final decision is one that brings the action at an end, in contradistinction to an interlocutory decision which does not completely dispose of the matter. In other words, the general principle of law as established by the decided cases is that, where the decision does not finally determine the issue or issues between the contending parties or does not at once affect the status of the parties, it is interlocutory. Thus, a decision between parties to a Suit, can only be regarded as a final decision when the determination of the Court disposes of the rights of the parties in the case.

It would be seen therefore that, a final order or judgment in law, is that which brings an end the rights or issues between the parties in the action. It disposes the Subject matter of the controversy between the parties on the merits. An interlocutory order or judgment on the other hand, is one given in the course of the action, which is only intermediate and does not finally determine the rights of the parties in the action. It is an order that determines some preliminary or subordinate issue or settles some step or question, but does not determine the ultimate rights of the parties in the action, but where the order made or judgment given finally determines the rights of the parties as to the particular issues disputed, it is a final decision, even if it arose from an interlocutory application or process. See TUNJI GOMEZ & ANOR v. CHERUPHIM & S.C. & ORS (2009) 1 NWLR (Pt. 1149) p.223 and 7 UP BOTTLING CO. PLC v. ABIOLA & SONS BOTTLING LTD (2002) 2 NWLR (Pt. 750) p. 40. Thus ACHOLONU; JSC (of blessed memory) stated in the case of NUHU V OGELE (2003) 12 S.C. p. 32 as follows
“What then is the test for a final judgment? I believe that when a matter comes for adjudication before a tribunal of justice for the determination of an issue in controversy in order to enable parties know for certainty the state of affairs in respect of the matter, a finding that would finally settle that issue the subject matter of the appeal at that material time in the sense that there should be no more reference to it in that matter, is a decision that can be said to be final for that purpose. In the course of the history of a civil matter or any controversy, such a matter or cause may make a second journey, and there may be various legal off-shoots of the case which call for a thorough examination, synthesisation and analysis with a view to finding an answer. The determination of that answer by the Court called upon to pronounce on that singular subject matter arising from the main action is to all purposes a final judgment. Thus in Ex parte Moore, In Re Faithful (1885) 14 QBD 627, 54 LJ QB 190, Bret, M.R said “If the court orders something to be done, according to the answer to the enquiries, without further reference to itself the judgment is final.”
It seems to me from the dicta of Acholonu; JSC stated above, that a final decision is one which conclusively decides the rights of the parties in a litigation and which leaves nothing open to further enquiry, as it completely sets at rest the cause of action between the parties. It is a final disposition of the cause of action at the trial court until it is reversed or set aside on appeal.

In proffering a solution as can be discerned from the decided cases, two clear methods of approach have been adopted, on the test to be applied in order to determine whether an order or judgment is final or interlocutory. These are:
(a) The nature of the motion or application to the Court.
(b) The nature of the order made.
In applying the nature of the application test, the principle is that, where the nature of the application does not act at finally determining the claim or claims in dispute between the parties, but only deals with an issue, both the application and the order or judgment must be interlocutory. However, where the application has the effect by the order to be made, of finally determining the claim before the Court, the order or judgment will be regarded as final. The nature of the order test looks at the nature of the order to be made by the Court of first instance, and not the nature of the proceedings. This test operates irrespective of whether a Court of Appeal may order the matter to be sent back for hearing or retrial. What is to be considered is the time or when the order or judgment was made or given. See NASCO MGT. SERV. LTD v. A.N. AMAKU TRANS LTD (2003) 2 NWLR (pt. 804) p. 290, EBOKAM v. EKWEWIBE & SONS (1999) 7 S.C.N.J. p.77 at 86-87.
What emerges from the decided cases is that the two tests are equally applied generally though the nature of the order test appears to have been preferred. The general rule that emerges from the two tests for determining whether an order or judgment is final or interlocutory, is to consider whether the Court of trial made the order or gave the judgment in answer to enquiries before it, without further reference to itself, in that case, the order or judgment would be final. That is so because, at that stage, the Court has completely determined the matter between the parties as far as the proceedings is concerned, and is therefore functus officio at that stage. There would be nothing left for the court to determine at that stage. Such an order would be final, and subsist whether or not it is wrong. It would remain final until it is set aside on appeal. See U.B.N PLC v. BONEY MARCUS IND. LTD (2005) 13 NWLR (Pt. 943) p. 654; OMONUWA v. OSHODIN & ANOR (1985) 2 NWLR (Pt.10) p.2 and IWUEKE v I.B.C. (2005) 17 NWLR (pt. 950) p.441.
In the instant case, the 1st and 2nd Appellants had filed an application before the court below, sitting as the court of first instance, praying the court to strike out the Appellants’ claims before it on grounds of lack of locus standi of the 5th Appellant, that the action was statute bared, premature and for nondisclosure of cause of action. The Learned trial Judge after listening to the arguments of counsel, allowed the preliminary objection. He therein proceeded to dismiss the Appellants’ claims in toto. The record of appeal does not disclose that any other thing or action was left in the matter to be done or considered by the learned trial Judge with respect to the claims or rights of the parties to the dispute. To clarify any doubt let me reproduce the order made by the learned trial Judge. The Learned trial Judge said:
“The statement of claim in this Suit is struck out. Suit No. HME/17/2002 is hereby dismissed.”
It is elementary law that a suit dismissed ends the controversy between the parties as far as the court making the order is concerned. That court has by that order become functus officio. It would have no jurisdiction to entertain anything in that matter in respect of the claim or rights of the parties in the suit. I therefore hold that the decision of the trial court made in suit No. HME/17/2002 on the 22/3/2004 is a final decision.
The 3rd and 4th Respondents have also argued that, the grounds of appeal in the case and their particulars, are not grounds of law alone, but are at best grounds of mixed law and facts, which then requires the leave of either the court below or of this court. The Appellants contended that, once the decision appealed against is a final decision of the High Court, sitting as a Court of first instance, an appeal against it is as of right, and that it would not matter, whether or not the grounds of appeal are all of facts, mixed law and facts or arising from the exercise of the Court’s discretion.
In the instant case, I have found that the order or judgment of the lower Court is a final decision of that Court sitting at first instance. The attitudes of the Courts in the country has always been that a liberal interpretation should be given to the provisions of the Constitution. In that respect, where the provisions are clear and unambiguous, a literal approach must be applied in the construction of that provision. See NAFIU RABIU v. THE STATE (1980) 8/11/ S.C, p.130 at 146 – 148 and N.N.P.C v FAWEHINMI (1998) 7 NWLR (Pt.554) p.598. If this approach is applied in the instant case, it would mean that, once it is clear on the face of the decision of the High Court sitting at first instance, that it is final in nature, an appeal against it would be final. In other words, where an appeal is from the final decision of a High Court sitting at first instance, no leave of this Court or of that High Court is required, whether the grounds of appeal are of mixed law and facts or facts alone. That is so because, once there is a right of appeal, no leave of Court is needed or required for an Appellant to initiate an appeal. See ALIYU v. IBRAHIM (1997) 2 NWLR (Pt.489) p.571 at 583; INYANG v. EBONG (2002) 2 NWLR (Pt.751) p.284 at 321; EZEOBI v. ABANG (2000) 9 NWLR (Pt. 672) p.230 at 240 and U.B.N PLC v. NWADIKE (2009) 4 NWLR (Pt 1131) p.352.

It is therefore the law that, when an appeal is from a final decision in a case or from a decision which has finally decided the rights of the parties in the proceedings in issue, the appeal brought is as of right. In the instant case, as the appeal is against the final decision of the High Court given at first instance, and not in its appellate jurisdiction, no leave of that Court or of this Court is required. As stated earlier, where there is a right of appeal, no leave of Court is needed or required. See BRONIK MOTORS LTD v. WEMA BANK (NIG) LTD (1933) 6 S. C. p.158, LAWRENCE ELENDU v FELIX EKWOABA & 4 ORS (1995) 3 NWLR (Pt. 386) p.704 at 732; MADUABUCHUKWU v. MADUABUCHUKWU (2006) 10 NWLR (Pt. 989) p.475, AULT & WILBORG (NIG) LTD v. NIBEL IND. LTD (2010) 11 NWLR (Pt 1220) p. 486; EKWEROM v. EGBOCHE (2010) 14 NWLR (Pt. 1213) p. 194 and BIDA v. ABUBAKAR (2011) 5 NWLR (Pt.1239) p.130. In the instant case, it has been determined that the appeal is against the final decision of the Imo State High Court sitting at first instance; not on appeal. In that respect, the appeal filed by the Appellants was of right and therefore no leave of the Court below or of this Court was required for the Appellants to file the Notice of Appeal. It is of no consequence that the grounds of appeal, as contended by the 3rd and 4th Respondents are based on mixed law and facts or on facts alone or that it was based on the exercise of the Court’s discretion. Thus, grounds 1 and 2 of the Notice of Preliminary Objection are hereby resolved against the Respondents.
The third (3rd) Ground of the objection by the 3rd and 4th Respondents is that, the Suit which gave rise to this appeal was not initiated by due process of law and upon fulfillment of the condition precedent of pre-action notice to the 3rd Respondents as mandatorily require by Section 164 (1) & (2) of Imo State Local Government Administration Law No.15 of 2000 (As Amended). Incidentally, this issue of issuance of pre-action notice was also canvassed by the 1st and 2nd Respondents in their issue No.3. That issue was therefore canvassed by the 1st and 2nd Respondents as a substantive issue in their Brief of Argument. That being so, I will restrict myself to the arguments of the 3rd and 4th Respondents as canvassed in the Notice of Preliminary Objection. The issue as argued by the 1st and 2nd Respondents shall be considered later, if need be.
Now, Learned counsel for the 3rd and 4th Respondents submitted that, where a law or rule of court provided a procedure for the commencement of a particular action, a party is bound to commence his action in the way and manner prescribed by that law or rule of court. That non-compliance will not be treated as an irregularity, but will vitiate the action and thereby making it incompetent and null. He then relied on the cases of AMADI v N.N.P.C. (2000) 10 NWLR (Pt. 624) p.76; NGELEGLA v. TRIBAL AUTHORITY NONGOMA CHIEFDOM (1953) 14 WACA p. 325 at 327, BRIGHT v E.D LINES LTD. (1952) 20 NLR p.79 and UDENE v. UGWU (1992) 3 NWLR (pt. 491) p.57 were referred to.
Learned counsel went on to submit that, in commencing this action against the 3rd Respondent, the Appellants did not fulfill a mandatory condition precedent to the initiation of the action against it as required by section 164 (1) & (2) of the Imo State Local Government Administration Law No. 15 of 2000 (As Amended). That non compliance with section 164 (1) & (2) of the Imo State Local Government Administration Law (supra) vitiates the suit and therefore fatal. It was therefore submitted that, the Suit instituted at the trial court which gave rise to this appeal is incompetent and therefore a nullity, and thus, the instant appeal predicated thereon should be dismissed as being an abuse of process of Court.
Learned counsel for the Appellants contended that the objection raising the issue of pre-action notice to the 3rd Respondent is grossly misconceived. He contended first of all that, section 164 (1) & (2) of the Imo state Local Government Administration Law (supra), does not require notice to be given to the chairman of a Local Government council before action can be taken against him. That the Law only requires pre-action notice if and when an action is to be taken against a Local Government, and not against the Chairman of the Local Government. That the 3rd Respondent in the suit is the Chairman, Ihitte Uboma Local Government and not the Local Government Area itself. The case of OWEMA BANK (NIG) PLC v. N.S.E. LTD (1992) 8 NWLR (Pt. 515) p. 1 at 12. para. H. was cited in support. We here then urged not to extend the requirement of pre-action notice before suing a Local Government to include the Chairman of the Local Government.
In the alternative, Learned Appellants’ counsel submitted that, the Respondents having not raised the objection on the ground of non-issuance of pre-action notice at the court below, have waived the right to do so now. That, if the objection had been raised at the court below, the lower court would have had the opportunity to determine the evidence and make a pronouncement on it, and thereby giving this court the benefit of the views of the court below. He then cited the case of ADEGOKE MOTORS v. ADESANYA (1989) 20 N.S.C.C (pt. 2) p. 327 at 334 lines 38-41 per OPUTA; JSC, to contend that, whether or not the Appellants gave pre-action notice before commencing the suit, and whether or not the notice was given, are questions of fact to be decided based on the available evidence before the court. That the issue was also not raised by the 1st and 2nd Respondents in their address in support of their motion resulting in the decision appealed against, and therefore, the 3rd and 4th Respondent cannot raise the point at this appeal lever. That even if they can do so, it can only be done by way of Respondents’ notice of intention that the decision of the court below be affirmed on grounds other than those relied upon by the court as enjoined by Order 9 Rule 2 of the Court of Appeal Rules, 2007. That the attitude of the 3rd and 4th Respondents in similar situation was highly deprecated in the case of AJUWON v ADEOTI (1990) 2 NWLR (Pt. 132) p.271 at 296 paras. G-E.
Learned Counsel for the Appellants further contended that, noncompliance with Section 164 (1) & (2) of Imo State Local Government Administration Law (supra) requiring pre-action notice to be given before commencement of an action does not lead to a question of jurisdiction which can be raised at any time. That, it is for the party who alleges the Court’s incompetence to raise the issue in his statement of defence, where proceedings are commenced by writ of summons. That failure to raise non-service of pre-action notice at the trial Court is deemed a waiver of the right to be served with the pre-action notice, and therefore cannot be raised in the Appeal Court. The case of MOBIL PRODUCING (NIG) LTD v. LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY (2003) FWLR (Pt. 137) p.1029 at 1051 para. A-G, was cited in support. That the protection afforded by Section 164 of the Imo State Local Government Administration Law (supra) is only for the 3rd Respondent, and therefore not available to the other Respondents. That the 3rd Respondent not having raised the issue in the Court below, is deemed to have waived it. That not having raised it, has waived his right to do so, and that none of the other Respondents can validly raise it. Learned Counsel then submitted that, failure of the 3rd and 4th Respondents to raise the point and to seek the pronouncement of the lower Court thereon, is fatal to the objection at this stage.
It would be seen that, the Appellants began by drawing a distinction on action instituted against the Chairman of a Local Government, and that against the Local Government Council. I do not see any real distinction between an action against the Chairman of a Local Government Area or Council, and that on the Local Government Council. It would be clear to any discerning mind that, the Chairman is the administrative head of the Local Government Council. It is through the Chairman that most actions of the Council are taken. The Chairman and other members of the Council (if any) take decisions for the Local Government. The Chairman is the head and therefore the source of authority of the Local Government Council. Thus, if the Chairman is sued or sues, the action would be deemed to be that of the Local Government, provided he has acted within the ambit of his authority, either apparent or ostensible. That being so, where the Law requires pre-action notice to be issued on the Local Government Council, means that that requirement extends to the Chairman of the Council before the action can be instituted against him. I therefore hold that the issuance of pre-action notice as required by Section 164 (1) & (2) of the Imo State Local Government Administration Law (supra) equally extends to the Chairman of the Local Government Council or Area.

It is trite Law that, where a statute requires that there should be a pre-action notice before an action can be commenced in Court against a certain defendant, there must be compliance with that statutory provision for the Court to assume jurisdiction over the matter. The issuance of a pre-action notice were required, is therefore fundamental as it has the effect of touching on the competence of the Suit, and thus the jurisdiction of the Court.

It should however be noted that, non-compliance with the requirement of a pre-action notice does not abrogate the right of a Plaintiff to approach the Court or defeat the action. That is so because, where the subject matter of the suit is within jurisdiction of the Court, the failure to serve a pre-action notice on the defendant, only gives such a defendant a private right to insist on such notice before the Plaintiff can activate his own right to sue the defendant on the issue. Accordingly, non-service of pre-action notice merely puts the jurisdiction of the Court at abeyance or on hold, pending compliance with the requirement of a pre-action notice. See UGUANYI v N.I.C.O.N PLC (2004) 15 NWLR (Pt.897) p.612; BARCLAYS BANK LTD v. C.B.N. (1976) 6 S.C. p. 176; EZE v. IKECHUKWU (2002) 18 NWLR (Pt. 799) p.348; NONYE v. ANYIGHIE (2005) 2 NWLR (Pt.910) p.623 and ETI-OSA LOCAL GOVT v. JEGEDE (2007) 10 NWLR (Pt. 1043) p. 537.

It would appear therefore, that the issuance of a pre-action notice has the effect of affecting the jurisdiction of the Court, where there is failure to comply when required. However, a distinction must be drawn between jurisdiction as a matter of procedural law and jurisdiction as a matter of substantive law. That is because, while a litigant can waive the matter of procedural law, no litigant can waive or confer substantive jurisdiction in a Court where the Constitution or statute or any other provision of the common law says that the Court shall have no jurisdiction or that it has jurisdiction as the case may be. Thus, where by the provisions of a statute, an action shall be commenced in a particular way or manner against a party, such prescription is procedural. In that respect, where an action is commenced against such a party in breach of that procedural requirement, and such a defendant did not complain but took active part in the proceeding, he cannot later be heard an appeal to complain, so as to take advantage of the irregularity. See cases of NDAYAKO v. DANTORO (2004) 12 NWLR (Pt. 889) p. 189 at 219; BBN LTD. v. OLAYIWOLA & SONS LTD (2005) 3 NWLR (Pt. 912) p.434; F and F. FARMS (NIG) LTD v. N.N.P.C (2009) 2 NWLR (pt.1155) p. 389 at 401-401-402; ETIM v. OBOT (2010) 12 NWLR (Pt. 1207) p. 108 at 150 and UMARU v. ALIYU (No.1) (2010) 3 NWLR (Pt. 1180) p. 135 at 174.

It would therefore mean that, a party who wishes to raise an issue of lack of service of pre-action notice on him, must do so timeously. In that respect, where a party wishes to dispute the issue of non-compliance with a precaution notice, same must be raised either in the statement of defence or in an affidavit accompanying his preliminary objection, since those are the only instances wherein the Plaintiff will have the opportunity of joining issues thereon by filing a Reply to the statement of defence or a counter-affidavit which will exhibit any proof that he may have of such service of the pre-action notice. See ODU’A INVEST. CO. LTD. v. TALABI (1997) 10 NWLR (Pt. 523) p.1 at 53 and AMES ELECT CO. LTD. v F.A.A.N (2002) 1 NWLR (PT. 748) p. 354. This is so because, when deciding on the issue of jurisdiction to entertain a matter in circumstances such as this, the relevant processes to be considered are, the writ of summon, the statement of claim and the affidavit evidence in support of the application by way of Preliminary Objection.

Where a defendant fails to plead the issue of pre-action notice and also did not raise same timeously, the presumption will be that he has waived his right. This is so because the issue of issuance of pre-action notice is not a right available to the public in general, but is one which enures to the person or body which it refers, as a private right; which he as a defendant can insist on or waive. See MOBIL OIL PROD. CO. (NIG.) LTD v. LAGOS STATE ENVIRONMENTAL PROTECTION AGENCY (2002) 18 NWLR (Pt.798) p.1 and NTIERO v. N.P.A (2008) ALL FWLR (Pt.430) p.689.
In the instant case, the Law referred to is the Imo State Local Government Administration Law No. 15 of 2000 (as amended). By Section 164 (1) & (2) of that Law, no Suit shall commence against a Local Government Council until one month at least written notice of intention to commence the same has been served upon the Local Government by the intending Plaintiff or his agent. A cursory look at the processes in this case reveals clearly that, apart from the 3rd Defendant/Respondent, none of the other defendants/Respondents is recognized by the Imo State Local Government Administration Law (Supra). In that respect, I totally agree with Learned Appellants’ Counsel that, the protection afforded by the Law (supra) is only available to the 3rd Respondents. However, I have had the opportunity to leaf through the record of appeal, and having done that, I am unable to see where the 3rd Respondent raised the issue of non-compliance with Section 164 of the Imo State Local Government Administration Law (supra). Indeed, the 3rd Respondent did not file any statement of defence at all at the trial Court. He did not also raise any Preliminary Objection to the competence of the action at the Court below. The preliminary objection leading to this appeal was filed by the 1st and 2nd Respondents and non of the grounds for the objection was on the failure of the Appellants to serve the 3rd Respondent a pre-action notice. The issue of pre-action not having been raised timeously at the Court below is therefore not available to the 3rd Respondent or any of the Respondents at this stage. The issue is deemed to have been waived. Accordingly, the 3rd and 4th Respondents’ objection to the competence of this appeal on that ground is hereby discountenanced.
The 4th ground raised for the Preliminary Objection is that, the Motion on Notice for additional grounds of appeal, dated 23rd May, 2005 was not served on the 3rd and 4th Respondents. That when a party to a Suit or appeal is not served with any Court process which he is entitled to, it denies him his right to non-service of the motion to file additional grounds of appeal and that submissions of counsel cannot take the place of evidence. This court was then urged to take judicial notice of the records in this case, particularly the proceedings of 19/4/2007, which is the date the Appellants’ Motion to file additional grounds of appeal was granted. That this court having granted the Appellants’ Motion to file additional grounds of appeal, the law presumes that all the conditions precedent to its grant have been satisfied, as there is a presumption of regularity of the order of this court dated 19/4/2001, which granted the Appellants’ motion for leave to file additional grounds, of appeal. Sections 150(1) and 149 (c) of the Evidence Act were referred to. That in the light of the legal presumption of regularity, that is, that notice were given to 3rd and 4th Respondents before the motion to file additional grounds of appeal was granted, the onus is on the 3rd and 4th Respondents to rebut that presumption, but no such evidence has been given to displace the presumption.
It is also the submission of the Appellants that, failure to serve notice of motion to file additional grounds of appeal on the 3rd and 4th Respondents before it was granted, is not an issue to be raised against the additional grounds of appeal filed in this appeal. That the order granting leave to file addition grounds of appeal is the decision of this Court and not an issue arising from the decision appealed against. It was therefore submitted that, the only remedy available to the 3rd and 4th Respondents would be to set in motion the necessary process to have it set aside or appeal against it; if indeed the motion was not served on them as contended by their learned counsel. We were then urge to discountenance this ground of objection.
Now, an appeal is an invitation to a Higher Court to review the decision of a lower court with a view to finding out whether on a proper appraisal of the fair hearing and renders the proceedings thereon a nullity. It was then submitted that, since the additional grounds of appeal, of which the 3rd and 4th Respondents were not given notice of were merged and argued together with the original grounds of appeal, the entire appeal has been polluted and therefore a nullity. The case of AUTO IMPORT, EXPORT v. ADEBAYO (2003) FWLR (pt. 110) p.1689 at 1695 was cited in support.
It is also the contention of the 3rd and 4th Respondents that Ihitte/Uboma Local Government Council was not joined as a necessary party in the suit and therefore the court below was deprived of jurisdiction to entertain the suit. That this issue is one of jurisdiction which can be raised at any time, even on appeal for the first time. That by Section 5(i) & (3) and Section 6(i) (a) of the Imo State Traditional Rulers and Autonomous Communities Law, 1999, the Local Government Council has a pivotal role to play in the documentation of documents to be submitted for the purpose of recognition of an Eze by the Governor. That the place of the Local Government Council in the process of Identification, Selection, appointment, installation and presentation of an Eze is indispensable in the process of recognition of an Eze, and therefore, ought to be joined in the suit. It was also contended that Chairman of Ihitte/Uboma Local Government Area who was joined is not the same person as Ihitte/Uboma Local Government Council. Learned Counsel then submitted that, the non-joinder of Ihitte/Uboma Local Government Council to the suit, defeated the suit and thus made it incompetent. We were then urge to dismiss this appeal on those grounds.
Learned Counsel for the Appellants contended that, no factual or evidential back ground was given for the submissions and conclusions reached at by the objectors. That evidence is required to be led to prove the alleged facts before the lower court, and the applicable law thereon, the lower court had arrived at the correct decision. Appeal is therefore a complaint against the acts or omissions of the trial Court in the process of adjudication in the Suit in dispute. In that respect, an appeal must be against the decision of the lower Court. See SHETTIMA v. GONI (2011) 18 NWLR (pt. 1279) p.413 and U.B.A PLC v BTL. IND. LTD. (2006) 19 NWLR (pt 1013) p.61. See also order 6 Rule 2 (1) of the court of Appeal Rules, 2007. (now 2011). Grounds of appeal must be restricted to the issues canvassed and determined by the lower court. Afortiori, a preliminary objection is an opposition to the hearing of the appeal by the Respondent, the purpose of which is to terminate the hearing of the appeal in limine either totally or in part. In that respect, the preliminary objection should be confined to the appeal or issues in the appeal without any recourse to extraneous factors. See AMGBARE v. SYLVA (2008) ALL FWLR (Pt. 419) p.576 at 579. That being so, a preliminary objection to the hearing of an appeal should be restricted to the proceeding in the Court of Appeal. Where the issue complained of and which has given vent to the objection does not touch on the competence of the appeal, but goes to issues which occurred before the lower court it cannot form a ground for a preliminary objection. If it is a Respondent who wishes to raise the issue, on appeal, he can only do so either by a cross-appeal or a Respondent’s notice.
In the instant case, the issue of joinder, or rather non-joinder of the Ihitte/Uboma Local Government was never raised before the court below. The court therefore had no opportunity to pronounce on the issue. This issue cannot be raised before us by way of a preliminary objection to the competence of the appeal even where it is an issue of jurisdiction. It could only be raised by the Respondent even if it had not been pronounced upon by the court below, if it touches on the issue of jurisdiction.

If I may venture to say so, even at that, the issue of non-joinder is an issue of procedural jurisdiction and not substantive jurisdiction. When the issue is not one of substantive jurisdiction it can be waived by the party or parties. In other words, a distinction should be made between procedural and substantive jurisdiction of a court. While an issue of substantive jurisdiction may be raised at any time, even on appeal, it is not so where the issue is that of procedural jurisdiction. Even where a Respondent desires to raise the issue of substantive jurisdiction, he can only do so by filing a Respondent’s notice, and not by way of a preliminary objection to the competence of the appeal, because it is the jurisdiction of the lower court and not that of the court of Appeal that is being challenged. See ALUKO v. D.P.P. (1903) 3 N.S.C.C. p.311, H.N.B. v. OGHETE (2000) 19 W.R.N.P. 20 at 41 and KOSSEN (NIG.) LTD v. SAVANNAH BANK (NIG.) LTD (1995) 9 N.W.L.R (pt. 420) p. 439 at 451.
What follows therefore is that the issue of non-joinder of Ihitte/Uboma Local Government is a procedural issue and having not been raised in the court below, the Respondents are deemed to have waived same having acquiesced to the proceedings at the court below. I accordingly discountenance the objection on that ground. In that respect, the issue of fair hearing does not arise at all.
On the issue of the additional grounds of appeal filed by the Appellants, I am of the view that the complaint of the 3rd and 4th Respondents is completely misconceived. The additional grounds of appeal were filed by leave of this court on the 19/04/2007. The act or omission complained of is that of this court and not that of the court below. If indeed, as contended by the Respondent, they had not been served the motion to file additional grounds of appeal before it was so granted, they have the option of either appealing the order granted to file the additional notice of appeal, or file a Motion on Notice to have same set aside. They cannot therefore confuse issues by bringing the issue as an objection to the hearing of the substantive appeal filed before us. I am of the view that the objection has been brought on this ground merely to confuse issues. Indeed Counsel as parties in the efforts by the Court to attain justices, should always assist in that effort by minimizing preliminary objection to the hearing of appeals properly filed before the Court. This will reduce the regour of work judges are subjected to. Perhaps the wise Counsel of OGEBE, JCA (as he then was) in the case of ONUOHA v. NDUBUEZE (2002) 2 NWLR (Pt.750) p. 172 at 183 will be helpful in that respect. Therein the Learned jurist said:
“It is more helpful to the Court if Counsel on either side avoid bugging down the Court with unnecessary preliminary objections, which can waste a lot of time of the Court which could otherwise be gainfully employed to resolve issues raised in appeal for determination. Such valuable time is used to resolve preliminary objections which in most cases are unnecessary.”
I think the wise Counsel of OGEBE; JCA (as he then was) is instructive enough, as it is in tandem with the modern trend in judicial circles where technicalities in the administration of justice are generally shunned or avoided. On the whole therefore, I conclude that the preliminary objection has failed on all grounds. It is hereby dismissed. I now proceed to the main appeal.
In arguing the appeal, Learned Counsel for the Appellants argued issues 1 and 2 together. He then contended that, it is clear from the motion filed at the trial Court, that the ground for asking that the Suit be struck out as being in competent are that the suit is statute bared, pre-mature and for lack of a cause of caution in the Plaintiffs’ claims. That the trial Court could therefore, only consider the motion on the basis of the grounds set out on the motion paper. The cases of COMMISSIONER FOR WORKS; BENUE STATE v. DEVCOM LTD. (1988) NWLR (pt. 83) p.407 at 420 and OKOYA v. SANTILI (1990) 2 NWLR (pt. 131) p.172 were cited to further submit that, the court must limit itself to the case presented by the applicant and cannot ignore the case presented by the applicant and go on a voyage of discovery so as to come to a decision.
Learned Appellants’ counsel therefore submitted that the 1st and 3rd grounds of the application before the trial court were that, the 5th plaintiff/Appellant has no locus standi to contest and that no cause of action was disclosed in the Plaintiffs’ action. That in determining the question of locus standi and the presences or absence of a cause of action, the Learned trial judge could only resort to the plaintiffs’ writ of summons and statement of claim and nothing else. That locus standi and issue of cause of action are matters of law to be determined by the totality of the averments in the statement of claim. A legion of cases such as; ADESOKAN v. ADEGOROLU (1997) 3 NWLR (pt. 493) p 261 at 278-279; GLOBAL TRANSPORT OCEANICO S.A. & ANOR v. FREE ENTERPRISES (NIG.) LT 5 NSCQR p.487; DANWIYAN v. IYAGIN (2002) FWLR (pt 120) p.1895 at 1826; OWODUNI v. REG. TRUSTEES OF C.C.C. & 3 ORS (2001) 10 NWLR (pt. 675) p 315 AND RAJI v. BAMGBOSE (1985) 14 NWLR (pt.37) p.632 ETC were cited in support. He further cited the cases of SENATOR ADESANYA v. PRESIDENT OF THE FEDERAL REPUBLIC OF NIGERIA (1981) 2 NCLR p.358; MOMOH v. OLOTU (1970) ALL NLR p.117; MARADESA v. MILITARY GOVERNMENT OF OYO STATE & ANOR (1986) 3 NWLR (Pt.27) p. 125 and ODENEYE v. EFFUNGA (1997) NWLR (pt. 164) p.618, to submit that, locus standi is determined by the cause of action and its determination by the Court is confined to the statement of claim.
Based on the above stated principles, it was contended by learned counsel for the Appellants that, in addressing the question as to whether Plaintiffs had locus standi in the case in issue, the learned trial Judge appear to have misapprehended the objection and therefore went off tangent for two reasons. The first reason as contended by Learned Appellants, counsel is that, on careful perusal of the first ground for the preliminary objection, is that the 5th plaintiff (now 5th Appellant) lacks locus to contest and not locus to institute the action. That there is a fundamental difference between “locus to contest” the traditional Rulership title” and “locus to institute the action.” That locus to contest has nothing to do with the issue of competence of the action or the jurisdiction of the court to entertain same; because locus to contest raises the issue of qualification of the 5th Appellant to contest the Chieftaincy title of Umuihi, which can only be determined at the conclusion of the trial. It was therefore submitted that locus to contest has nothing to do with locus to institute the action, which raise the issue of competence of the action and jurisdiction of the court. Paragraph 18(a) of the affidavit in support of the motion on notice and the submission Learned counsel for the 1st and 2nd Respondents at pages 259-260 of the records were referred to, to contend that the Respondents were not in doubt as to what they meant by locus to contest. He also referred to pages 307 and 308 of the record to contend that the learned trial judge who had the duty to appreciate the law did not do so and thereby gravely equated “locus to contest the chieftaincy title, in Umuihi Community “with locus to sue” and thereby held that the 5th Appellant is not an indigene of Umuihi Autonomous Community and therefore was not qualified to contest the Chieftaincy title in that Community.
It is also the submission of Learned Counsel for the Appellants that, by equating “locus to contest” with “locus standi” to institute the action, the Learned trial judge in fact and in law, decided the substantive question as to whether the 5th Appellant is qualified to hold the Chieftaincy title in Umuihi Autonomous Community, without hearing the case on the case on the merit. That the Learned trial Judge was wrong to strike out or dismiss the Plaintiffs’ Suit on a Preliminary objection that the Plaintiff, lack the locus to contest the Chieftaincy title in Umuihi Autonomous Community, which in effect means that the 5th Appellant is not qualified to contest the Chieftaincy stool in Umuihi.
Learned Appellants’ Counsel went on to submit that even if the preliminary objection had been taken and determined on the basis of “locus standi” properly called, the Learned trial Judge was on the authorities cited above, bound to limit himself to the Plaintiff”‘ Statement of Claim and writ of summons in the resolution of the issue.
On the issue of the Plaintiffs’ case not disclosing a cause of action, Learned Counsel submitted that, the Learned trial Judge ought to have applied the well established principle that, only the statement of claim is to be looked at, and not the totally unnecessary prolific affidavit evidence produced by the parties and considered by the Learned trial Judge. That, had the Learned trial Judge properly directed himself on the point, it would have been clear to him that the Appellants not only have locus standi but also a valid cause of action. That the Appellant pleaded fully the circumstances and manner in which the 5th Appellant was elected as the Eze of Umuihi Autonomous community, but instead of limiting, himself to the pleadings in the statement of claim, the Learned trial Judge erroneously embarked on resolving the issue of locus standi on the averment in the statement of defence and affidavit in support of the motion.
On the issue of lack of a cause of action, Learned Counsel for the Appellants contended that, in a case which did not proceed to trial and the Judge did not take evidence, it was strange that the Learned trial Judge made the findings as he did at pages 308-309 of the records, on the issue of cause of action. That by the averments in the Appellants’ Statement of Claim, the central issue in dispute in the Suit is the right of the Appellants to identify, select and appoint the Eze of Umuihi Autonomous Community, and present him for recognition, as can be clearly seen at paragraph 35 of the Statement of Claim. Paragraphs 1-24, 29 and 30 of the Statement of Claim were reproduced to buttress the point, and to further submit that, it is clear that the Appellants have shown that they have sufficient interest in the reliefs sought in the case, which is to protect and or enforce the rights vested on the Umuihi Autonomous Community by the Imo State Traditional Rulers and Autonomous Communities Law, 1999.
It was further contended by Learned Counsel for the Appellants that, the 1st – 4th Appellants are the representatives of the Umuihi Town Union, and the Kingmakers and Cabinet of Umuihi Autonomous Community. That by the statement of claim, they are the persons authorized to identify, select and appoint the Eze of Umuihi Autonomous Community, while the 5th Appellant is the Eze-Elect, identified, selected and appointed by them. That by those averments therefore, the Appellants had disclosed sufficient locus standi in the matter in dispute and also had a good cause of action. The cases of AMUSA MOMOH v. JIMOH OLOTU (supra); MARADESA v. EFFUNGA (supra); DANIYAN v IYAGIN (supra) and OWODUNI v CELESTIAL C. OF C (supra) were then cited to submit that, in Chieftaincy matters, once a Plaintiff has shown in his pleading that he has sufficient interest in the reliefs claimed and also how his interest in the Suit arose, the Court is bound to hold that he has a cause of action and thus the locus standi to sue. Learned Counsel thus submitted that it was wrong for the Learned trial Judge to have gone into the question of the existence and or creation of Ihinna Autonomous Community or to hold at that Preliminary stage, that the creation of Ihinna Autonomous Community destroyed the Appellants’ Cause of action and their locus standi in the Suit.
Learned Counsel for the 1st and 2nd Respondent contended the basis upon which the Appellants brought the action in the Court below is that they are indigenes of Umuihi Autonomous Community. That Ihinna Autonomous Community was however curved out of Umuihi Autonomous Community by the Imo State Government and duly published in Imo State Government of Nigeria Gazette in 2002. That with the creation of the new Autonomous Community out of Umuihi, some members of Umuihi, which include some of the Appellants fell under the new Autonomous Community. That the Gazette publishing the creation of Ihinna Autonomous Community amongst others was annexed to the Affidavit in support of the motion as exhibit Q. That by Sections 113 and 116 of the Evidence Act, the Learned trial Judge was right when he held that Exh. “Q” is an official document of Imo State of Nigeria which gave notice to the public of the contents therein. That the Learned trial Judge was also right in holding that from the totality of the evidence before him, there exists in Imo State in Ihitte/Uboma L.G.A an Autonomous Community known to Law as Ihinna Autonomous Community. He then submitted that where the Appellants challenge the creation of Ihinna Autonomous Community, they have to come by some originating process.
Learned Counsel for the 1st and 2nd Respondents therefore contended that the creation of Ihinna Autonomous Community from Umuihi Autonomous Community, is an intervening act which placed some of the Appellants who were initially from the same community in a different Autonomous Community. That due to the creation of the new Autonomous Community, there has been a change of status which affected the Appellants, because under the Constitution of Umuihi Autonomous Community, you must be an indigene of Umuihi before you can contest the Ezeship position. It was therefore submitted that the Appellant who admitted are now in the new Autonomous Community, no longer have the locus standi to sustain the action contended as indigenes of Umuihi. The case of EMEZI v. OSUAGWU (2005) 126 LRCN p.884 was cited in support.
It was further contended by the 1st and 2nd Respondents that in compliance with the Rules and Regulations regarding the identification, selection, election and appointment of an Eze for Umuihi Autonomous Community, the 5th Appellant applied for the position, when he stated that he is from Umuezeokwa. That the 5th Appellant also signed several documents as shown in pages 194,197 and 201 of the records and which documents were in respect of Ihinna Autonomous Community. That those facts show that the 5th Appellant is from the new Ihinna Autonomous Community and no more Umuihi Autonomous Community, and that being a Chieftaincy disputes, since the 5th appellant who disputes the stool with the 4th Respondent who was recognized as the Eze, no longer has locus standi due to the fact that he is now from another Autonomous Community, the action filed cannot be sustained without him. It was therefore submitted that to assert a right to a Chieftaincy stool the claimant has to be an indigene of that autonomous Community. The cases of EMEZI V. OSUAGWU (supra) at p.900 paras EE and p.901 paras. AF, and MOMOH & ANOR VOLOTU (supra) at p.104 were cited in support. That in any case, some of the Appellants filed Notices of withdrawal from the Suit by reason that they are no longer indigenes of Umuihi Autonomous Community as seen at pages 230, 231, 228 and 155 of the Records, and page 39 of the supplementary record of appeal.
Learned Counsel for the 1st and 2nd Respondent went on to submit that, the main crux of the suit is the Chieftaincy dispute between the 5th Appellant and the 4th Respondent. That the 5th Appellant and his Counsel have admitted that he is from Ihinna, and the 2nd, 3rd and 4th Appellants have also filed documents to the effect that they are from Ihinna, and therefore, the cause of action cannot be sustained. It was also submitted that in law, if at any stage of the proceedings, the Court discovers that it has no jurisdiction to entertain a matter, it should discontinue, because any further adjudication no matter how well conducted will be a nullity. He relied on the cases of KATTO v. CBN (1991) 9 NWLR Pt. 214) p. 126 at 148 and MADUKOLU v. NKEMDILIM (1962) 2 ALL NLR p.581. Learned Counsel then submitted that, the Appellants now want the Court to act in vain as the person who was purportedly presented by the Appellants as the Eze-Elect of Umuihi Autonomous Community, now comes from a different Community. That since he no longer has the locus to maintain the action as well as the other Appellants, the cause of action in the Suit cannot be sustained, as to hold otherwise will amount to asking the Court to act in vain, and that Courts do not act in vain. He then relied on the case of IWEKA v. S.C.O.A NIG LTD (2000) 76 L.R.C.N p. 572 at 590 to urge us to hold that in the circumstances, the Appellants do not have the locus to institute or maintain the action already filed.
Learned counsel for the 3rd and 4th Respondents submitted in a similar vein. He also submitted that even without the preliminary objection filed by the 1st and 2nd Defendants/Respondents, by which they exhibited exhibit Q, the Learned trial Judge was entitled by sections 73 and 74 of the evidence Act, to take judicial notice of the said exhibit “Q”, in determining whether the cause of action was still subsisting. He then contended that the 5th Appellant cannot have the locus standi to contest the chieftaincy of Umuihi Autonomous community when he is an indigene of Ihinna autonomous community, and therefore without sufficient interest to seek redress in court. That if the 5th Appellant does not have the locus standi to contest the chieftaincy of Umuihi Autonomous community, he will also not have the locus standi to challenge the outcome of same. It was therefore submitted that, the effect of Exhibit “Q” is that, there has been by operation of law, a change or transmission of interest, which deprived the Appellant, particularly the 5th Appellant the locus standi to sustain or continue with the action after the creation of Ihinna Autonomous Community out of Umuihi Autonomous Community.
Learned counsel for the 3rd and 4th Respondents further contended that, the 5th Appellant no more has real interest to challenge on the Ezeship of Umuihi autonomous community after the creation of Ihinna Autonomous community, which was the gravamen of suit No HME/33/2003, between the 5th Appellant and one Lawrence Ihekwem, who is now the Eze of Ihinna Autonomous Community. It was further contended that the 5th Appellant filed suit No.HME/33/2003, when he realized that his interest in the chieftaincy of Umuihi Autonomous community had been ended with the creation of Ihinna Autonomous Community.
On the declaratory reliefs sought by the Appellants, Learned counsel for the 3rd and 4th Respondents contended that, a declaration can only be made in respect of an existing right or right which is dependent upon a future event, and not in respect of a right which existed in the past. He therefore submitted that, courts of law do not grant declarations, if at the time of trial, an issue has been overtaken by events, as in the instant case. That, not withstanding that the Appellant started their quest for the Umuihi Chieftaincy stool when they were indigenes, but at the point Ihinna Autonomous Community which they belong was created out of Umuihi their interest in the chieftaincy of Umuihi Autonomous community became extinguished. Learned counsel therefore submitted that, the Appellants failed to show that the trial court exercised its discretion wrongly or improperly, in striking out their statement of claim and dismissing the action for lack of cause of action and locus standi. We were then urged to answer this issue in four of the Respondents and to dismiss the appeal.
Now, the concept of the locus standi simply means a place of standing; that is the legal capacity to institute an action in a court of law. The locus standi of a person to sue is therefore a condition precedent to the determination of a suit on its merits. In its legal application, it connotes the legal right which a person has to file or bring an action or be heard in a court of law.

The issue of locus standi is one of jurisdiction and therefore a point of law. It cannot therefore be raised in limine.

Thus, where a defendant is challenging the capacity or locus standi of the Plaintiff to sue, as in the instant case, it is necessary that he has filed a statement of defence in which he has raised the issue or objection. See TAIWO v. ADEDGBORO (2011) 11 NWLR (Pt 1259) p.562; WILSON v. OKEKE (2011) 3 NWLR (Pt.1235) p.456; ADETONA v. ZENITH INT’L BANK PLC (supra) and DISU v AJILOWURA (2006) 14 NWLR (Pt.1000) p.783. Thus, since demurrer has been abolished under the Imo State High Court rules (supra), a Preliminary point of law can be raised where the parties have filed their pleadings. I am of the view that where a Defendant has raised the point of law in his pleading, he may come by way of Preliminary Objection or Motion on Notice to have the point raised determined.
In the instant case, the 1st and 2nd Respondents filed an Amended Statement of defence consisting of 25 paragraphs. At paragraph 25 of the Amended Statement of defence, the 1st and 2nd Respondents pleaded as follows:
“25.The Defendants will raise objection to this suit and urge the Honourable Court to strike out the action on the following grounds:
(a) The Plaintiffs have no locus standi to institute this action.
(b) The action is premature as the action involves the exercise of statutory functions which has not been exercise.
(c) The action is statute barred in that it was not commenced within 3 months of the recognition of the 4th Defendant by the 1st Defendant.’
The said 1s and 2nd Respondents filed a Motion on Notice dated the 12/06/03 supported by an affidavit of 19 paragraphs to which were annexed some exhibit marked as exhibits A, B, C, D, E, F, G, H, I, J, K, L, O, P and Q respectively. The Appellants as Respondents to the said Motion filed a Counter Affidavit of 20 paragraphs to which they annexed Exhibit A, B and C respectively. For the purpose of this issue, the prayer of the 1st and 2nd Respondents on the said Motion was that:
“This Suit should be struck out as being statute barred, pre-mature and no cause of action is disclosed in the action.”
One of the Grounds upon which the objection was predicated is that:
“The only contestant for the Traditional Ruler ship of the community with the 4th Defendant, the 5th Plaintiff, has no locus standi to contest.”
After taking arguments of counsel, the learned trial Judge held at Page 307 line 13-308 line 2 as follows:
“For me, Exhibit Q is settled on the instrument to be cited as the creation of Autonomous communities, 2002 until it is successfully challenged in a court of competent jurisdiction by the appropriate parties, it is my considered view and I so hold that there exist in Imo State in Ihitte/Uboma Local Government Area on Autonomous Community known to Law as Ihinna Autonomous Community.
Now since I have come to the conclusion that legally Ihinna Autonomous Community exists, it goes without saying that the Plaintiffs, especially 5th Plaintiff recognized this existence and have acted on that premises and acknowledged that he is a native of the said Ihinna Autonomous Community. This is not in dispute between the parties as even Ugorji Esq by implication admitted in his submission on issue No. 2 raised by him. Having so admitted (see Section 19 and 20 of the Evidence Act) 5th Plaintiff has no locus standi to ask Court to make the declaratory or injunctive orders he seeks in this Suit. He is not from Umuihi. Umuihi is separate and distinct traditional Rulers.”
The Learned trial Judge proceeded to hold at page 308 lines 3-9 of the record as follows:
“Now since the cause of action in the Plaintiffs’ claim is based on the claim that it is the 5th Plaintiff rather than the 4th Defendant who is entitled and should be recognized as Eze of Umuihi Autonomous Community, by the creation of Ihinna Autonomous Community and since the 5th Plaintiff is no longer from Umuihi Autonomous Community he no longer had the locus standi to sustain the cause of action in this Suit.”
It is not in doubt that the cause of action in this Suit arose from a Chieftaincy dispute. In a Chieftaincy dispute, person who contests or challenges the appointment of another to a Chieftaincy office or stool, must show his interest in the particular Chieftaincy. In other words he must show that he has the right to contest the Chieftaincy. Such issue will invariably touch on his qualification to contest. In Imo State, the right to succession to the Ezeship stool in Autonomous Communities, is created by the Traditional Rulers and Autonomous Communities Law No.3 of 1999. By Section 5 of that Law, each Autonomous Community is granted the power to make Rules and Regulations regarding the custom governing the identification, selection, election of its Eze- Umuihi Autonomous community had made its own Rules and Regulations in that regard. It is annexed to the affidavit of the Appellants, motion for interlocutory injunction as exhibit “A” and also annexed to the 1st and 2nd Respondents’ affidavit to the motion subject of this appeal. By paragraph 3(a) of that document titled “THE RULES AND REGULATIONS GOVERNING THE ELECTION AND APPOINTMENT OF THE CHIEF AND TRADITIONAL HEAD OF UMUIHI AUTONOMOUS COMMUNITY IN ETITI LOCAL GOVERNMENT AREA OF IMO STATE, FEDERAL REPUBLIC OF NIGERIA,” for a person to qualify to contest to chieftaincy or Ezeship office in Umuihi Autonomous Community, he must be a citizen of Umuihi.
The crux of the issue in this suit, and as found by the Learned trial Judge is that, Ihinna Autonomous community was curved out of Umuihi Autonomous Community, and that from the evidence before him, the 5th Appellant being from Umu-ezeokwa in Ihinna Autonomous community ceased to be an indigene of Umuihi and thus lost his right to contest the Ezeship seat of Umuihi Autonomous Community.
Now, the Respondent had deposed at paragraph 5, 6, 7, 8, 9, 9(a), 10, 11 and 12 of the affidavit in support of their motion, of facts which show that the 5th Appellant is an indigene of Ihinna Autonomous Community, Exhibit “Q” annexed to the affidavit also shows that requests were made for the creation of Ihinna Autonomous Community, and which was granted and the Ihinna Autonomous community duty created by the Imo State Government. Those facts were not disputed. That being so, I am of the view that, the Learned trial Judge in the court below was right when he held that with the subsequent creation of Ihinna Autonomous Community, out of Umuihi Autonomous Community, the 5th Appellant was no longer qualified to contest for the Ezeship of Umuihi Autonomous community. It is not disputed that he had the right to contest for the office at the time the action was filed, but subsequent developments obliterated or extinguished that right. In other words being from Ihinna Autonomous Community and an Autonomous community having been created for Ihinna, his right in Umuihi community no longer existed. His right to contest and occupy the Ezeship stool in Umuihi having ceased, it invariably means that the action he had filed claiming to have been elected as the Eze of Umuihi Autonomous community can no longer be sustained. It has abated with the creation of Ihinna Autonomous community of which he belongs. See SAIDU GARBA v. F.C.S.C. (1988) NWLR (pt.71) p.449.

Having found that with the creation of Ihinna Autonomous community from Umuihi Autonomous community by exhibit Q, the 5th Appellants locus standi which existed before the creation of the Ihinna Autonomous community has equally abated or has been extinguished. I belief that the Learned trial Judge was right to have terminated the proceedings at that stage and on that ground, since the 5th Appellant could no longer ascend the Ezeship throne of Umuihi Autonomous community with the creation of Ihinna Autonomous community. I agree with learned counsel for the Respondents that the 5th Appellant saw the reality on ground, when he instituted suit No. HME/33/2003 claiming to have been elected the Eze of Ihinna Autonomous community against one Lawrence Ihekweme, who is now the Eze of Ihinna Autonomous Community. He filed that suit when he realized that his claim or interest on the Ezeship stool of Umuihi had been eroded.
The Learned trial Judge also found that the main claim in the suit is the dispute between the 5th Appellant and the 4th Responded as to who between a them is entitled to be recognized as the Eze of Umuihi Autonomous Community. Those claims are predicated on paragraphs 34(c), (d), (g) and (h) of the statement of claim. The Learned trial Judge then held at page 308 lines 10 – 17 as follows:
“As a result of the creation or existence of Ihinnna Autonomous community it will be necessary for this Gourt to critically examine who are the reminder of the Plaintiffs in the Suit. Does 1st to 4th Plaintiffs (sic) have the locus to continue with this suit so as to give this court the jurisdiction to make the declaration in (a), (b), (c) and (h). As it were claims (c), (d) and (g) cannot be sustained any longer in view of all I have earlier said.”
The Learned trial Judge then concluded that even if the 1st – 4th Appellants have locus standi, since the whole suit is predicated on who between 4th Defendant/Respondent and 5th Plaintiff/Appellant is entitled to be Eze of Umuihi, the creation of Ihinna Autonomous Community has pulled the rug under the feet of the 1st – 4th plaintiff/Appellants. Looking at the claims as pleaded at paragraphs 35 of the statement of claim, only reliefs (a) and (b) can be said to be of direct interest to the 1st – 4th Appellants’ Even at that, the record shows that the 2nd and 4th Plaintiffs/Appellants are also from the Ihinna Autonomous Community, which puts them under the same footing as the 5th Appellant. The Learned trial Judge therefore held, and rightly in my view that when the 2nd and 4th Appellants are also ruled out, the 1st and 3rd Appellants will also loose the locus standi to sustain the action, as they would loose the representative capacity on which they stand. Furthermore, as the substratum of the case is the Ezeship tussle between the 5th Appellant and the 4th Respondent, a resolution of the other prayers as affects the other Respondents would only be academic. It would have no utilitarian value to the substance of the case. Having thus found, I hereby resolve this issue in favour of the Respondents
Issue No. 3 as formulated by the Appellants is whether the learned trial Judge was right in dismissing the Appellants Suit in limine. It is the view of Learned Appellants’ Counsel that there were no legal basis for the decision of the Court below to dismiss the Suit in limine.
The complaint of the Appellants here is in respect of the statement of the Learned trial Judge at page 309 lines 10-14 of the record, wherein he stated that:
“The recognition of 4th Defendant by the Governor of Imo State is an executive act. Any; challenge to the action has to be properly done in the manner prescribed. In view of that, this Court embarking on deciding issues raised in claims (a), (b), (e) and (h) becomes mere academic exercise.”
It should be realized that this observation of the Court below came after it had ruled that the Appellants had no locus standi to sustain the claim which had abated. I am of the view that the statement of the learned trial Judge after deciding on the issue of locus standi was mere obiter dictum. The Learned trial Judge merely stated that, the recognition of the 4th Respondent being an executive act, the proper procedure or manner of challenging same ought to be followed. That is a bare statement of the law. Having held that it was a statement made obiter, it cannot therefore be a ground for appeal, because appeals are grounded on the ratio decidendi of the case. It would be seen that the matter in the Court below was determined on the basis of lack of locus standi alone. Indeed that could not have been otherwise because, it is the law that where the issue of locus standi is resolved against a Plaintiff as in the instant case, there will be no need to proceed further with other issues raised in the matter. That is so because at that stage, the jurisdiction of the trial Court would have been ousted. See EMEAZI v. OSUAGWU (2005) 12 NWLR (Pt.939) p. 340. That is what the learned trial Judge did in this case, and I am of the view that he was right.
I have observed that the quotation made by the Appellants’ Counsel which he ascribes to the learned trial Judge is totally misleading. See page 16 under issue 3 in the Appellants’ Brief of Argument. That quotation is totally misleading. It is obvious that Learned Counsel deliberately avoided some sentences in the passage so as to suit his case. Counsel should therefore avoid deliberate misrepresentation of passages quoted from judgments of Court, which has the tendency of mislead.
On the whole therefore, I am of the view that this appeal has no merit. It fails and is accordingly dismissed. Consequently, the judgment of the Court below in Suit No. HME/17/2002 is hereby affirmed.
I make an order of fifty thousand Naira (N50,000.00) as cost against the Appellants in favour of the Respondents.

MOJEED A. OWOADE, J.C.A: I have had the privilege of reading in draft the Judgment of my learned brother HARUNA S. TSAMMANI, JCA. I agree with the reasoning and conclusion and I abide with the consequential orders.

TIJJANI ABUBAKAR, J.C.A: I had the advantage of reading before now, the judgment just delivered by my learned brother, H. S. Tsammani, JCA.
I agree with the reasoning and conclusion arrived at by my learned brother. I also abide by the consequential orders made therein.

Appearances

O.J Irerhime, Esq.For Appellant

AND

S. A Njoku, Esq. (H.A.G; Imo State) with E.C. Aguta (Mrs); C.A. Sunday Iheme (Miss) and O. A. Ikonne; Esq. for the 1st & 2nd Respondents
E.C. Onumajuru; Esq. (J.R.O Egole; Esq. with him) for the 3rd & 4th RespondentsFor Respondent

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