EZE (DR.) CLETUS I. ILOMUANYA v. THE GOVERNOR OF IMO STATE & ANOR
(2013)LCN/6384(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of July, 2013
CA/OW/128/2012
JUSTICES
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
Between
EZE (DR.) CLETUS I. ILOMUANYA Appellant(s)
AND
1. THE GOVERNOR OF IMO STATE
2. THE ATTORNEY-GENERAL OF IMO STATE Respondent(s)
RATIO
WHETHER OR NOT IT IS THE AFFIDAVIT EVIDENCE FILED BY PARTIES THAT IS CONSIDERED IN THE DETERMINATION OF ISSUES BEFORE THE COURT, IN ACTIONS COMMENCED BY ORIGINATING SUMMONS
In actions commenced by originating summons, it is the affidavit evidence filed by the respective parties that is considered in the determination of the issues before the court. It is therefore clear that the affidavits filed by the parties in such actions take the place of evidence and all material paragraphs of an affidavit must be specifically denied otherwise that paragraph shall be taken as admitted and will constitute unchallenged evidence upon which the court can act. See INAJOKU V. ADELEKE (2007) ALL FWLR (Pt.353) 3 at 75, ETIM V. OBOT (2010) 12 NWLR (Pt.1207) 108 at 171. PER EKPE, J.C.A.
DEFINITION OF AN ORIGINATING SUMMONS
It is however trite that an originating summons is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to the facts therein. It is not a proper procedure where contentions issues or facts are to be resolved. See:
– FMIA V. SHUGABA (1982) 3 NCLR 915.
– NATIONAL BANK OF NIG. V. ALAKIJA (1978) 9 & 10 SC 59.
– KEYAMO V. LAGOS STATE HOUSE OF ASSEMBLY (2002) 18 NWLR (Pt.799) 605.
– OGUNSOLA V. ANPP (2003) 39 WRN 115. PER EKPE, J.C.A.
WHETHER OR NOT A DENIAL IN PLEADINGS OR AFFIDAVIT MUST BE PRECISE
In the case of BEDDING HOLDINGS LTD. V. INEC (1992) 8 NWLR (Pt. 260) at 428 the court held thus:
“It is good law that a denial whether in pleadings or in affidavit must be precise, concise and exact. A denial must not give room for conjecture or speculation. A denying paragraph in an affidavit should specifically deny the particular paragraph or paragraphs in the affidavit in support.” PER EKPE, J.C.A.
WHETHER OR NOT AN AVERMENT IN AN AFFIDAVIT NOT CONTROVERTED OR CONTESTED IS DEEMED ADMITTED
The Appellant also alleged that there had been no complaint or allegations against him during his brief tenure before dissolution. The Respondents did not in any way react to that paragraph of the affidavit and it thus remain uncontroverted and uncontested and the law is that it will be deemed admitted by the respondents. See OMOREGBE V. LAWANI (1980) 3-4 SC 70, whether a court can act on unchallenged evidence before it:
“Where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the proceedings to act on the unchallenged evidence before it (See ODULAJA V. HADDED (1973) 11 S.C. P.35; NIGERIAN MARITIME SERVICES LTD. V. ALHAJI BELLO AFOLABI (1978) 2 S.C. 79 at 81 – 82; see also the Privy council on the Nigerian case of ADEL BOSHALI V. ALLIED COMMERCIAL EXPORTERS LTD. (1961) ALL NLR 917 per Lord Guest).”PER EKPE, J.C.A.
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Imo State, delivered by Hon. Justice B. A. Njemanze on the 24th day February 2012 whereby he dismissed the action of the Appellant.
The brief facts of the case are that the 1st Respondent in his maiden broadcast on the 6th day of June 2011 allegedly dissolved the council of NDI EZE of which the Appellant is the chairman and thus contravening S.2(1), 2(4) and 17(a) of the Imo State of Nigeria Traditional Rulers and Autonomous Communities Law No. 6 of 2006 (as amended) while the Appellant and members had yet to completed their tenure of office of 5 years beginning from the 28th day of January, 2010.
The Appellant came by way of originating summons supported by an affidavit of 8 paragraphs to which he attached a number of documents marked as Exhibits A, B, B1, B2, C and D.
Exhibit A – Letter appointing the Claimant as the Chairman of the Imo State Council of Traditional Rulers.
Exhibit B – NEWSPOINT Newspaper Vol. 8 No. 74 of 20 -21 June 2011 pages 4 and 9 (Editorial on the subject matter of the claim)….
Exhibit B1- Sunday Sun Newspaper of June 19, 201 Vol.6 No.429 page 66.
Exhibit B2 – The Nigerian Horn Newspaper Vol. 3 No. 22 of August 12 – 14 2011 page 1.
Exhibit C – Letter written by the Claimant to the 1st Defendant dated July 22, 2011.
Exhibit D – A letter under the hand of the ETSU NUPE, HRH ALHAJI (DR.) YAHAYA ABUBAKAR CRF on the subject matter of the suit asking the 1st Defendant to have a rethink to no avail.
The Appellant as claimant in the lower court prayed the court to determine the following questions:
(A) Whether having regard to the provisions of Section 2(1), 2(4) and 17(a) of the Imo State of Nigeria Traditional Rules and Autonomous Communities Law No. 6, 2006 (as amended) the tenure of office of a member of the State Council of Ndi Eze can be determined otherwise than in the manner provided by the applicable law.
(b) Whether the 1st Defendant can unilaterally dissolve the Imo State Council of Ndi-Eze and, remove from office its members whose tenure is still subsisting having regard to the provisions of Section 17(a) of the Imo State of Nigeria Traditional Rulers and Autonomous communities Law No. 6, 2006 (as amended).
(C) Whether the 1st Defendant’s dissolution of the Imo State Council of Ndi-Eze in his maiden broadcast to the people of Imo State on 6th June, 2011 is not illegal having regard to the aforesaid provisions of the Imo State of Nigeria Traditional Rules and Autonomous Communities Law Nos. 6, 2006 (as amended) and Section 36 of the 1999 Constitution of Nigeria.
The claimant/Appellant then sought the following reliefs:
(a) An order setting aside the dissolution of the Imo State Council of Ndi-Eze and removal from office of the Claimant by the 1st Defendant on 6th June, 2011.
(b) An Order of Injunction restraining the Defendants by themselves, their servants, agents or however as a member of and Chairman of the Imo State Council of Ndi-Eze until the lawful expiration of the said tenure in 1015.
The Respondents however challenged the Appellants claim by way of a counter affidavit of 8 paragraphs. They also filed a preliminary objection which was promptly dismissed by the trial court which held thus
(a) That the claim disclosed a cause of action
(b) The claimant had the requisite Locus Standi.
(c) The action was not speculative.
The Respondents in their counter affidavit denied paragraphs 2 to paragraph 7 of the Appellant’s affidavit and went further to state that the Appellant was not appointed chairman by the Governor of Imo State and that the 1st Defendant/Respondent did not dissolve the State Council of Traditional Rulers. It was then concluded that originating summons was not the proper procedure to adopt in commencing the action. He further concluded that the paragraphs in the Respondents’ counter affidavit are not general and sweeping denials of the material facts in dispute in this appeal as alleged by the Appellant. That those paragraphs specifically and pungently attacked the issues in the Appellant’s affidavit giving the learned trial Judge enough material to enable him rule in their favour
In respect of the main case, the learned trial Judge thus held:
“I have considered the case in its entirety and I am of the opinion that the evidence produced by the Claimant in support of this case are essentially evidence of Newspaper advertorials, comments, secondary evidence and hearsay evidence.”
And
“The Claimant has not produced the best evidence to enable the court embark on the inquiry which he desires by the institution of this case.”
In line with the Rules of this Court, the Appellant fired a notice of appeal dated the 15th day of March 2012 containing 4 Grounds of Appeal. The said Grounds of Appear shorn of their particulars are set out as follows:
GROUND ONE:
The learned chief Judge erred in raw when he concluded that:
“I hold that the claimant has not produced the best evidence to enable the court embark on the inquiry which he desires by the institution of this case”
GROUND TWO:
The learned chief Judge erred in law when he dismissed the appellant’s claims as lacking in merit.
GROUND THREE:
The learned Chief Judge misdirected himself and consequently arrived at a wrong decision. When he placed reliance on and applied the provisions of the interpretation Act 2004 to the case before him which revolved round the construction to be placed on provisions of the Imo State of Nigeria Traditional Rulers and Autonomous Communities Law No. 6 of 2006.
GROUND FOUR:
The learned trial Judge erred in law in placing no value on EXHIBITS B, B1 and B2.
The Appellant has raised a sole issue for determination to wit:
“Whether the decision appealed against is justified having regard to the evidence before the learned trial Chief Judge.”
The Respondents on the other hand have raised two issues for determination as follows:
ISSUE 1:
“Whether the holding of the learned justice of the trial court that “I have considered the case in its entirety and I am of the opinion that the evidence produced by the Claimant in support of this case are essentially evidence of Newspaper advertorials, comments, secondary evidence and hearsay evidence”. And, “That claimant has not produced the best evidence to enable the court embark on the inquiry which he desires by the institution of this case” is perverse and not borne out from evidence on record – Grounds 1, 2, and
4.
ISSUE 2:
“Whether the learned trial chief fudge based his judgment on the interpretation act or merely made reference to it- Ground 3.
I have however considered all the issues raised by parties in this appeal and my view is that there is only one issue that calls for determination here and that issue is as elegantly couched by learned counsel for the appellant which I shall adopt as mine in the determination of the matter before this court.
Learned counsel for the Appellant. O.A. OBIANWU, SAN, commenced his argument by setting out the law on the evidential nature of an affidavit in support of originating summons. He relied heavily on the views expressed by the Presiding Justice, UWANI MUSA ABBA AJI, JCA in the unreported case of BARR. EYINNA ONUEGBU & 26 ORS. V. ATTORNEY GENERAL OF IMO STATE delivered on the 5th day of July 2012 where he copiously thus stated in his lead judgment:
“I need to restate here that this suit is being contested under originating Summons. In actions commenced by way of Originating Summons, facts do not have pride of place in the proceedings. It is the affidavit evidence filed by the respective parties that is considered in the determination of the issues for determination. It is unlike a situation where trial is commenced by writ of summons where the facts are regarded as holding pride of place and the fountain head of the law, in the sense that the facts lead to a legal decision on the matter. That is not the position where facts do not play a central role but on infinitesimal role. An affidavit duly sworn or deposed to before a court of law is the only documentary evidence available before the court in determination of the issues raised for determination of the issues raised for determination in the Originating Summons See ETIM V. OBOT (2010) 12 NWLR (PT. 1207) 108 AT 171; INAKOJU v. ADELEKE (2007) ALL FWLR (PT.353) 3 AT 75. It is therefore clear that the affidavits filed by parties in actions commenced by Originating Summons take the place of evidence and any material paragraph of an affidavit not specifically denied is taken as admitted and constitutes unchallenged evidence upon which the court can act.”
Learned senior counsel stated that the learned friar Judge did not consider the averments in the affidavit of the court of Appeal in support of the originating summons and consequently failed to appraise same. He further argued that it is incorrect for the trial court to have merely based his decision on Exhibit B, B1, B2, C and D which he discredited. That the lower court did not appreciate the fact that the Appellant put forward these Exhibits not as proof of the dissolution of the Council of NDI EZE, but as proof of the fact that the dissolution was subsequently the subject of Newspaper publications. Counsel further argued that the Respondent did not deny the dissolution of the council by the 1st Respondent in his maiden broadcast of 6th June 2011 by alluding to the fact or principle that affidavits filed by parties in actions commenced by originating summons take the place of evidence and any material paragraph not specifically controverted is taken as admitted and constitutes unchallenged evidence upon which the court can act.
He cited the cases of OKEREKE v. EJIOFOR (1996) 3 NWLR (Pt.434) Pg.90, UGWUANYI v. NICON INSURANCE PLC. (2004) 15 NWLR Pt. 897 Pg.617, BEDDING HOLDINGS LTD. v. INEC (1992) 8 NWLR Pt 260 Pg. 428, AGBAKOBA v. INEC (200s) Pt. 1119 Pg.489.
Learned counsel further submitted that the counter affidavit by the Respondent at pp. 118 – 119 of the record has no value as it is merely evasive and the sweeping denials therein failed to meet the point of substance raised in the affidavit of the Appellant, particularly paragraphs 3, 4 and 5. Again counsel submitted that the learned trial Judge raised the issue of exhibit B, B1, and B2, as hearsay and Exhibits C and D having not been received by the 1st Respondent. That both issues had been raise suo motu by the lower court and resolved against the Appellant without any impute from the parties. That these issues were never raised either in the preliminary objection, counter affidavits or written addresses, and that this action smacks of prejudice and lack of jurisdiction in that the learned Chief Judge descended into the arena to make a case for which the Respondent did not put forward, thereby trampling on the Appellant’s constitutional right to a fair hearing.
He then cited the case of REGISTERED TRUSTEES OF AMORC V. AWONIYI (1994) 7 NWLR Pt. 355 Pg.154, where the court thus stated:
“It is trite law that a court should not base its decision solely on issues raised by it suo motu without hearing the parties. Similarly, a court should not comment on issues not raised and canvassed before it. Thus, where an appellate court is disposed to raising an issue suo-motu, it is imperative of being heard before a final decision is taken, otherwise it will amount to an infraction of the principle of fair hearing as guaranteed in our Constitution.”
Learned counsel again submitted that Exhibit B, B1 and B2 are all statements of fact and that the trial court failed to give reasons why he branded them as hearsay evidence, particularly Exhibit B1 which is a statement of facts available to the writer. That Exhibit B2 also contained factual information about the true position of things.
Learned counsel reiterated the fact that the Judgment appealed against is replete with errors of law and non appreciation of the evidence which was unchallenged.
That the lower court had a duty to fairly consider the evidence against the background of the applicable law but failed to do so. He again stated that there was no evidence that the Respondents refuted the contents of Exhibits B, B1 and B2 and never even referred to the said exhibits in their affidavit. Also that the learned trial Judge did not discredit EXHIBIT A which revealed that the appellant was appointed on the 8th day of April 2010 with effect from January 28th, 2010. That there was also overwhelming evidence of the 1st Respondent’s dissolution of the council during the maiden speech of June 6th 2011.
Learned counsel for the Appellant in a further submission stated that Exhibits B, B1, and B2 were certified true copies which the learned trial Judge discredited, suo motu and which by S.105 of the Evidence Act, 2011 constituted evidence which the court ought to have acted upon. That having discredited the Appellants case, the lower court sought to justifying the illegal action of the 1st Respondent by relying on Section 11 of the Interpretation Act 2004 and further stated that where a statute confers a power to appoint a person, it also includes a power to remove such a person. Counsel further posited that the Interpretation Act did not apply to the Applicable Law No. 6 of 2006 which is not an act of the National Assembly, enactment or subsidiary, instrument, and placed reliance in the CASE Of ALLIANCE FOR DEMOCRACY V. FAYOSE (2004) ALL FWLR Pg.25 at 35.
Counsel again submitted that the Imo State of Nigeria, Traditional Rulers and Autonomous Communities Law No. 6 of 2006 (as amended) is neither an act of the National Assembly, an enactment or a subsidiary legislation made pursuant to an act within the contemplation of the Interpretation Act. See INAJOKU v. ADELEKE (2007) 4 NWLR Pt.1025 Pg.423 at 598, OKOYA v. SANTILLI (1990) 2 NWLR Pt. 131 Pg.172 at 207.
Learned counsel for the Respondents led by the Attorney General, S.A. Njoku on their part and in reply to the submissions of counsel for the Appellant has adopted the principles of law which the Appellant cited in their brief of argument on the evidential nature of an affidavit in support of originating summons. That the material issues for determination of the controversy are in paragraph2, to paragraph g of the appellant’s affidavit in support of the originating summons. It is counsel’s further submission that the Respondents filed a counter affidavit of 8 paragraphs. And at paragraphs 5, 6 and 7 vehemently and unequivocally denied paragraph 2 to paragraph 8 of the appellants averments therein by giving material details of their rebuttal at paragraphs 6(a), (b)(c), 7(1)(b) and (c) of the Respondent’s counter affidavit, which the learned Chief Judge considered and appraised in his judgment.
Learned counsel further submitted that the Respondents joined issues on the facts in the Appellant’s supporting affidavit and replied to those averments in their counter affidavit. That from these conflicts in their averments the learned trial Judge was right to hold that the conflict of facts were substantial enough to call for pleadings and that oral evidence was required to resolve those contentions issues raised by the parties. Counsel again submitted that the Exhibit A, B, B1, B2, C and D which the Appellants heavily relied on failed to meet the standard of proof required by law to accord them the best evidence and urged the court to uphold the position of the trial court in this appeal.
On the issue of the trial courts resort to the Interpretation Act, learned Respondent’s counsel submitted that there is nothing in both the Interpretation Act and the Imo State of Nigeria Traditional Rulers and Autonomous communities Law No. 6 of 2006 (as amended) to show that the provisions of the Interpretation Act is expressly made inapplicable to the said aforementioned law. Counsel made particular reference to S.11 of the Interpretation Act to state that a person who has the power to appoint anyone into a particular office or to perform a certain function also reserves the power to remove or suspend such a person. He then urged the court to dismiss the appeal.
In actions commenced by originating summons, it is the affidavit evidence filed by the respective parties that is considered in the determination of the issues before the court. It is therefore clear that the affidavits filed by the parties in such actions take the place of evidence and all material paragraphs of an affidavit must be specifically denied otherwise that paragraph shall be taken as admitted and will constitute unchallenged evidence upon which the court can act. See INAJOKU V. ADELEKE (2007) ALL FWLR (Pt.353) 3 at 75, ETIM V. OBOT (2010) 12 NWLR (Pt.1207) 108 at 171.
In this case, the Claimant/Appellant had come by originating summons with an affidavit of 8 paragraphs which for the purpose of clarify, I shall reproduce as follows:
“(1) I am the Plaintiff in the above suit and depose to this affidavit from facts within my personal knowledge.
(2) I was appointed as the Chairman of the 7th Imo State Council of Traditional Rulers (Ndi-Eze) with effect from January, 28th 2012 vide letter now shown to me and marked EXHIBIT A.
(3) I functioned in the said capacity until June 6th, 2011 when the 1st Defendant in his maiden broadcast to the State announced the dissolution of the Council.
(4) I functioned in the said capacity until June 6th 2011 when the 1st Defendant in his maiden broadcast to the State announced the dissolution of the Council.
(4) Prior to the dissolution, my attention was not drawn to any complaint or allegation against me.
(5) The dissolution has attracted wide-spread comments in the print and electronic media as exemplified by certified true copies of:
(i) Newspoint Newspaper Vol. 8 No. 74 of 20 – 21 June, 2011 pages 4 and 9.
(ii) Sunday Sun Newspaper of June 19, 201 Vol. 6 No. 429 page 66.
(iii) Nigerian Horn Newspaper Vol. 3 No. 32 of August 12 – 14 2011 page 1.
Which are marked EXHIBITS B, B1 and B2 respectively.
(6) I had cause to write the letter dated July 22, 2011 now shown to me and marked EXHIBIT C. to the 1st Defendant regarding the dissolution.
(7) I am also aware that the National Council of Traditional Rulers of Nigeria had cause to write the letter now shown to me and marked EXHIBIT D to the 1st Defendant on the dissolution.
(8) Following the rejection of all appeals to the 1st Defendant to reverse his decision, I have no option but to have recourse to the judiciary.
The Defendants/Respondents also filed a counter affidavit of 8 paragraphs which I shall also reproduce hereunder:
“(1) That I am a Litigation Officer in the Ministry of Justice, Owerri Imo State.
(2) That by virtue of my position I am conversant with the facts of this case.
(3) That I have the consent and mandate of the 1st and 2nd defendants and my employer to swear to this affidavit for and on their behalf.
(4) That I have seen und read the originating summons and the affidavit in support by the plaintiff filed on the 29th of August 2011.
(5) That paragraphs 2, 3, 4, 5, 6, 7 and 8 of the affidavit are hereby denied as they are not true.
(6) That in further answer to the said paragraphs 2, 3, 4, 5, 6, 7 and 8 of the affidavit it is hereby stated as follows:-
(a) That the claimant in his exhibit A was not appointed Chairman by the Governor of Imo State
(b) The 1st Defendant did not dissolve the State Council of Traditional Rulers.
(c) That plaintiff was also not appointed to any position by the 1st Defendant as averred in paragraphs 2 and 3 of the affidavit.
(7) That I have been informed by the State Counsel handling the case, M.C. Uwasomba Esq. and I verily believed same that:-
(a) That there is no Council established by law in Imo State known as Imo State Council of Traditional Rulers.
(b) That the Chairman has no cause of action against the defendants.
(c) That originating summons is not the proper procedure to commence this action
(8) That I swear to this affidavit believing the contents to be true und correct to the best of my knowledge and in accordance with the Oaths Act.
The learned Chief Judge, after dismissing the Respondent’s preliminary objection decided thus in the main case:
“I have considered the case in its entirety and I am of the opinion that the evidence produced by the Claimant in support of this case are essentially evidence of Newspaper advertorials, comments, secondary evidence and hearsay evidence”
And
“The Claimant has not produced the best evidence to enable the court embark on the inquiry which he desires by the institution of this case.”
Obviously, these conclusions of the trial court were predicated on these findings:
“(i) The contents of EXHIBIT B was opinion evidence or at best hearsay evidence.
(ii) The contents of EXHIBIT B1 was hearsay evidence.
(iii) The contents of EXHIBIT B2 was hearsay evidence e
(iv) EXHIBIT C and D were delivered to the 1st Defendant.”
No doubt these point have been raised suo-motu by the lower court and the decision reached therein was not out of any arguments canvassed by the parties.
The learned chief Judge mostly referred to Exhibits B, B1, B2, C and D and discredited them accordingly. Taking a cursory look at the affidavit of the Appellant, it is clear that those Exhibits were put forward mainly as proof the fact that the dissolution of the council of Ndi Eze was subsequently the subject of Newspaper publications and not as proof of the dissolution per se.
Again since an originating summons procedure does not brook contentions issues, the question here is whether there were contentions issues in the affidavit of the parties to warrant an alternative proceeding. It is however trite that an originating summons is a procedure where the evidence in the main is by way of documents and there is no serious dispute as to the facts therein. It is not a proper procedure where contentions issues or facts are to be resolved. See:
– FMIA V. SHUGABA (1982) 3 NCLR 915.
– NATIONAL BANK OF NIG. V. ALAKIJA (1978) 9 & 10 SC 59.
– KEYAMO V. LAGOS STATE HOUSE OF ASSEMBLY (2002) 18 NWLR (Pt.799) 605.
– OGUNSOLA V. ANPP (2003) 39 WRN 115.
Judging from the affidavits of both parties, the question here is whether there are any contentions issues in Appellants affidavit to warrant the decision reached by the learned trial Chief Judge. Paragraph 2 of the appellant’s affidavit clearly states as follows:
“I was appointed as the chairman of the 7th Imo State Council of Traditional Rulers (Ndi-Eze) with effect from January 28th, 2010 vide letter now shown to me and marked EXHIBIT A.
I functioned in the said capacity until June 6th, 2011 when the 1st Defendant in his maiden broadcast to the State announced the dissolution of the Council.
Prior to the dissolution; my attention was not drawn to any complain or allegation against me………..”
I shall go a step further to reproduce EXHIBIT A in the said affidavit which to my mind is the kernel of the Appellant’s claim:
APPOINTMENT AS CHAIRMAN 7TH IMO STATE COUNCIL OF TRADITIONAL RULERS
His Excellency, the Governor of Imo state chief (Dr.) Ikedi Ohakim (KSC) has approved your appointment as chairman of the 7th Council of Traditional Rulers of Imo State with effect from 28th January, 2010.
2. For this appointment, the following conditions would apply in accordance with the New Financial Instruction for the management of the Council of Traditional Rulers Accounts:
(i) Traveling Allowance for the chairman of Imo Council Traditional Rulers;
(a) Where the travel/journey is within the South Eastern States, a maximum of N500,000.00 (Five Hundred Thousand Naira) only is approved. This amount would also cover the members of his team and it is not retirable.
(b) When the travel/journey is being made outside the South Eastern States i.e. to any other Geo-political Zone; a maximum of Nine Hundred Thousand Naira (900,000.00) only is approved and would also cover members of his team.
(ii) (a) on medical check-ups Abroad, the sum of $30,000 (Thirty Thousand Dollars) only is approved.
(c). Allowance on Gift Items: The sum of N8,000,000.00 (Eight Million Naira) only annually is approved. This amount would be released in two installments.
3. All requests for release of funds or approvals of official trips are to be made through the Hon. Commissioner, Ministry of Local Government and Chieftaincy Affairs to His Excellency except requests that fall within the statutory approval limits of the Hon. Commissioner.
4. Please accept, His Excellency the Governor’s Congratulations.
Sgd:
CHIEF COSMAS IWU
SECRETARY TO THE GOVERNMENT OF IMO STATE
The Respondents in their counter affidavit paragraphs 6(a)(b) and (c) have categorically stated that the claimant in his Exhibit A was not appointed chairman by the Governor of Imo state; that the 1st Defendant did not dissolve the state council of Traditional Rulers and also that the plaintiff/Appellant was not appointed to any position by the 1st Defendant as averred in paragraphs 2 and 3 of Appellant’s affidavit.
The Appellant submitted that these statements proffered by the Respondents were merely sweeping denials and that the Respondents have failed to react specifically to the allegations.
In the case of BEDDING HOLDINGS LTD. V. INEC (1992) 8 NWLR (Pt. 260) at 428 the court held thus:
“It is good law that a denial whether in pleadings or in affidavit must be precise, concise and exact. A denial must not give room for conjecture or speculation. A denying paragraph in an affidavit should specifically deny the particular paragraph or paragraphs in the affidavit in support.”
Although the Respondents in their counter affidavit have denied the allegations contained in the appellant’s affidavit they have not given any further details of their denials. Mere stating that the appellant was not appointed Chairman as in paragraph 2 of Appellant’s affidavit without more does not in my view constitute a specific denial of such a grave statement. Exhibit A is the appellant’s trump card, and the onus is therefore on the Respondents to furnish the court with enough detailed facts in their counter affidavit to debunk the said claim by the Appellant. Again the Respondents did not deny the Appellant’s claim in paragraph 3 of his affidavit that the council of chiefs was dissolved in the 1st Respondent’s maiden broadcast of the 6th day of June 2011. That fact remains unchallenged.
The Appellant also alleged that there had been no complaint or allegations against him during his brief tenure before dissolution. The Respondents did not in any way react to that paragraph of the affidavit and it thus remain uncontroverted and uncontested and the law is that it will be deemed admitted by the respondents. See OMOREGBE V. LAWANI (1980) 3-4 SC 70, whether a court can act on unchallenged evidence before it:
“Where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the proceedings to act on the unchallenged evidence before it (See ODULAJA V. HADDED (1973) 11 S.C. P.35; NIGERIAN MARITIME SERVICES LTD. V. ALHAJI BELLO AFOLABI (1978) 2 S.C. 79 at 81 – 82; see also the Privy council on the Nigerian case of ADEL BOSHALI V. ALLIED COMMERCIAL EXPORTERS LTD. (1961) ALL NLR 917 per Lord Guest).”
There is need to emphasize the fact that the respondents, in answer to paragraphs 2, 3, 4, 5, 6, 7 and 8 of the Appellant’s affidavit, merely summarized their denials in three sweeping statements as follows:
(a) That the claimant in his Exhibit A was not appointed Chairman by the Governor of Imo State.
(b) That 1st Defendant did not dissolve the State Council of Traditional Rulers.
(c) That plaintiff was also not appointed to any position by the 1st Defendant as averred in paragraphs 2 and 3 of the affidavit.
I do not consider these denials pungent enough to counter the relevant facts specifically adumbrated in all the paragraphs of the appellant’s affidavit. If this matter was fought on affidavit evidence alone as was the case in the court below, then any material paragraph of an affidavit not specifically denied is taken as admitted and will thus constitute unchallenged evidence for the court to act on. See, OGUNYADE V. OSHUNKEYE & ANOR. (2007) 15 NWLR (Pt. 105) 218 where the Supreme Court thus held:
“The law in my view settled that where evidence given by a party to any proceedings was not challenged by the opposite party who had the opportunity to do so, it is always open to the court seised of the proceedings to act on the unchallenged evidence before it.
ODULAJA V. HADDED (1973) 11 SC 357; NIGERIAN MARITIME SERVICES LTD. V. ALHAJI BELLO AFOLABI (1978) S2 SC 79. Unchallenged and uncontradicted evidence ought to be accepted by the court as establishing the fact therein contained.”
On the issue of the learned Chief Judge discrediting Exhibits B, B1, B2, C and D, I am of the firm view that those Exhibits were put forward as proof of the fact that the dissolution of the Council of Traditional Rulers (Ndi-Eze) was subsequently the subject of Newspaper publications. The said Exhibits were not meant to prove the dissolution of the council but to buttress the fact that there were simply nationwide media comments on the said issue.
Finally the learned trial Chief Judge went off tangent when he delved into the realm of the Interpretation Act S.11 to state that he who has the power to appoint also reserves the power to remove or suspend. He had lost track of the fact that the respondent had earlier denied that the appellant was either hired or fired by the 1st Respondent and thus had no case, S.2(1), 2(4) and 17(a) of the Imo State of Nigeria Traditional Rulers and Autonomous Communities Law No. 6 2006 (as amended) is quite clear. The Appellant was appointed by the Governor of Imo State for a fixed tenure of 5 years from January 28th, 2010. Again the said law clearly states that the Appellant in that capacity as Chairman cannot be removed unless by death or resignation, neither of which occurred before the 1st Respondent’s maiden broadcast of the 6th June 2011.
From the totality of all of the above, it is my considered view that the learned chief Judge raised issues suo motu and determined them to the detriment of the Appellant without evidence thus descending into the arena to make a case not made by the respondents.
Consequently, this appeal is meritorious and it is hereby allowed. The Appellant is therefore entitled to all the reliefs sought in his originating summons. The judgment of the learned Chief Judge delivered on the 24th day of February 2012 is set aside. I make no order as to costs.
JOHN INYANG OKORO, J.C.A.: I read in draft the judgment of my learned brother, PHILOMENA MBUA EKPE, JCA, just delivered. I agree with her that this appeal is meritorious and ought to be allowed.
The appellant herein was appointed as Chairman of the 7th Imo State Council of Traditional Rulers with effect from 28th January, 2010. This is clearly stated in exhibit A, the letter of appointment signed by Chief Cosmas Iwu, the then Secretary to the Government of Imo State and the said letter is dated 8th April, 2010. By Section 17(a) of the Traditional Rulers & Autonomous Communities Law, No. 6 of 2006, the tenure of office of every member of the said council shall be 5 years unless predetermined by resignation or death. However, on 6th June, 2011, the 1st respondent as Governor of Imo State in his maiden broadcast, dissolved the said council of NDI EZE (Traditional Rulers) of which the appellant was the Chairman, thus contravening Sections 2(1), 2(4) and 17(a) of the Imo State Traditional Rulers & Autonomous Communities Law No. 6 of 2006 (as amended). As a result of the action of the 1st respondent, the appellant filed this matter at the court below praying it to determine, amongst others, whether having regard to the provisions of Sections 2(1), 2(4) and 17(a) of the Imo State Traditional Rulers & Autonomous Communities Law No.6 of 2006 (as amended), the tenure of office of a member of the State Council of Ndi Eze can be determined otherwise than in the manner provided by the applicable laws.
Looking at Section 17(a) of the law alluded to above; its provision is very clear and unambiguous. It is a cardinal principle of interpretation of statute that if the language of a statute is clear and unambiguous, the court must give the words their ordinary meanings. This has always been the stand of the courts and has been followed except where such interpretation will lead to absurdity or inconsistent with the provisions of the statute as a whole. See ARAKA vs. EGBUE (2003) 17 NWLR (Pt.848) 1 at 25; KALU vs. ODILI (1992) 6 SCNJ 76; ANSALDO NIG. LTD vs. N.P.F.M.B. (1991) 2 NWLR (Pt.174) 392; PEENOK INVESTMENT LTD vs. HOTEL PRESIDENTIAL (1932) NSCC 477; ABIOYE vs. YAKUBU (1991) 5 NWLR (Pt.190) 130. Under the said law, the only circumstances under which the tenure of a member of the Council of Traditional Rulers can be truncated are the death or resignation of the member. There is nothing in the Traditional Rulers & Autonomous Communities Law No. 6 of 2006 empowering the 1st respondent to dissolve the council and thereby truncate the fixed tenure of five (5) years created by Section 17(a) of the said Law. Had the law-makers intended that the tenure of members of the council could be abrogated or cut short by the 1st respondent, such power could have been specifically vested on him by the Law. It is my view that the express mention of death or resignation amounts to the exclusion of any other means of bringing the fixed tenure of 5 years to an abrupt end.
The learned trial Chief Judge in his judgment failed to consider Exhibit A, the appointment letter of the appellant which was neither challenged nor discredited. For me, Exhibit A was the fulcrum of the appellant’s case when placed side by side with Section 17(a) of the Imo State Traditional Rulers & Autonomous Communities Law No. 6 2006. The emphasis laid by the learned Chief Judge on Exhibits B, B1 and B2 with due respect was misplaced.
I hold a very strong view that the act of the 1st respondent in dismissing the 7th Imo State Council of Traditional Rulers and the consequent removal of the appellant from office on 6th June, 2011 was patently unlawful and contrary to the provision of Section 17(a) of the Traditional Rulers & Autonomous Communities Law No. 6 of 2006.
Based on the above and the fuller reasons given in the lead judgment of my learned brother, EKPE, JCA, I agree that this appeal is meritorious and is hereby allowed. The judgment of the High Court of Imo State presided over by B. A. Njemanze, CJ and delivered on 24th February, 2012, dismissing the appellant’s claim is hereby set aside. I make order granting all the reliefs which the appellant sought in his originating summons. I also make no order as to costs.
HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading in advance, the judgment just delivered by my learned brother, PHILOMENA MBUA EKPE; JCA.
My learned brother has exhaustively and admirably resolved the pertinent issues that came up for determination in the appeal. I have no hesitation in concurring with the reasoning and conclusions thereon, and accordingly adopt them as mine. No doubt the learned trial Chief Judge was off-tangent in the resolution of the germane issues in the claims of the Appellant on the originating Summons, and which the Respondents merely glossed-over in their Counter-Affidavit. The Appellant’s Claims and the pungent facts depicted in the Affidavit in support together with the documents annexed thereto were in no way controverted. Instead of directing his mind on those issues, the learned trial Chief Judge occupied himself with irrelevances which have no bearing with the claim of the Appellant before him. By so doing, the learned trial Chief Judge denied justice to the Appellant which he is entitled to. That being so, I allow this appeal and set aside the judgment of the trial Court delivered on the 24th day of February, 2012. Having set aside the judgment of the Court below, I am also in agreement that the Appellant is entitled to his claims as per paragraph 3(A) and B of the Originating Summons. Those are the claims I declare or decree for the Appellant.
I abide by the order on costs.
Appearances
O. A. Obianwu (SAN) with U. K. Anyanwu, Esq.For Appellant
AND
S. A. Njoku, Attorney General of Imo State with S.E. Ibechem Assisted and M.C. Uwasomba, Esq.,
J. C. Ibe, Esq. Mrs., K C. Nwokorie, Esq., and B. I. Faloye, Esq.,For Respondent
