SIR TOBIAS UKAEGBU & ORS v. NZE OLIVER NWANUFORO & ORS (2015)

SIR TOBIAS UKAEGBU & ORS v. NZE OLIVER NWANUFORO & ORS

(2015)LCN/7804(CA)

In The Court of Appeal of Nigeria

On Friday, the 6th day of March, 2015

CA/OW/233/2011

RATIO

PRACTICE AND PROCEDURE: THE TERM LOCUS STANDI; WHAT DOES THE TERM LOCUS STANDI DENOTES, THE EFFECT OF THE LACK OF THE SAME AND WHAT THE CLAIM OF THE PLAINTIFF MUST REVEAL IN ORDER TO ACHIEVE THE STATUS OF LOCUS STANDI

The term locus standi and its denotation have been explained in numerous cases:

In the cases of CHIEF GAFARU AROWOLO V. CHIEF SUNDAY E. OLOWOOKERE & ANOR. (2011) 18 NWLR (Pt. 1278) 280 at 300 G – H 301 A – B where ADEKEYE, JSC said:

“Speaking, the term “locus standi” denotes the legal capacity to institute an action in a court of law. It is a status which a plaintiff must have before being heard in court. It is a condition precedent to the determination of a suit on its merit. The question whether a plaintiff has the locus standi to sue is determinable from the totality of the averments in the Statement of Claim.

Thomas v. Olufosoye (1986) 1 NWLR (Pt. 18) pg. 669, Adefulu v. Oyesile (1989) 5 NWLR (Pt. 122) pg. 377, Momoh v. Olotu (1970) 1 All NLR Pg. 117, Owodunni v. Registered Trustees C.C.C. (2000) 10 NWLR (Pt. 675) Pg. 315.

The right to sue can only be conferred by status or by Constitution or by some customary law- particularly the Chiefs Law.”

MR. SUNDAY ADEGBITE TAIWO v. SERAH ADEGBORO & ANOR. (2011) 11 NWLR (Pt. 1259) 562 at 579 F – H where RHODES-VIVOUR, JSC said:

“Locus Standi means standing to sue or competence of a party to sue. An objection to a plaintiff’s locus standi attacks his competence to sue as to whether he has any legal or equitable interest to protect. The rule about locus standi developed primarily to protect the courts from being used as playground by professional litigants, or and meddlesome interlopers, busy bodies who really have no real stake or interest in the subject matter of the litigation.”

Thus in accordance with Section 6(6)(b) of the Constitution of the Federal Republic of Nigeria 1999 as amended, a person will only be accorded standing to sue if and only if he can show that his civil rights and obligations have been or are in danger of being violated or affected by the unlawful acts of his adversary or another person. Issue of Locus Standi is therefore intertwined with jurisdiction.

Where a Plaintiff lacks Locus Standi, it will rob the Court of jurisdiction.

BASINCO MOTORS LTD. VS. WOERMANN-LINE & ANOR (2009) 13 NWLR (PART 1157) 149 H to 980 A – C where Adekeye, JSC said:

“LOCUS Standi in my view is a fore runner or precursor to jurisdiction. Accordingly, where it is proved that a Plaintiff lacks locus standi to bring an action, the Court will decline jurisdiction as it has none. A Court of law has no jurisdiction to manufacture locus standi on a party and arrogate to itself jurisdiction. That is never done.”

The terms locus standi denotes the legal capacity to institute an action in a court of law. It is a status which the plaintiff must have before being heard in court. It is a condition precedent to determination on the merits. In order to achieve the status of locus standi, the claim of the plaintiff must reveal:

(a) A legal or justiciable right;

(b) Show sufficient or special interest adversely affected;

Momoh vs. Olotu (1970) 1 All NLR Pg. 117, Bolaji vs. Bamgbose (1986) 4 NWLR (Pt. 73) Pg. 632; Adesanya Vs. President FRN (1981) 5 SC 112; Adefulu Vs. Oyesile (1989) 5 NWLR (Pt. 122) Pg. 377; Thomas Vs. Olufosoye (1986) 1 NWLR (Pt. 18) Pg. 669; Odeneye Vs. Efunuga (1990) 7 NWLR (Pt. 164) Pg. 618; Owodunni Vs. Registered Trustees of C.C.C. (2000) 10 NWLR (Pt. 675) Pg. 315.”

And on page 199 C – E Fabiyi JSC said:

“In Josiah Kayode Owodunni Vs. Registered Trustees of C.C.C. & Ors. (2000) 10 NWLR (Pt. 675) 315 at page 357, this court pronounced that locus standi is unequivocally a threshold issue. It is not dependent on the merits of a case but on showing of the Plaintiff’s case in his Statement of Claim. The question whether a Plaintiff has locus standi to sue is determinable from the totality of averments in his Statement of Claim. If there is no requisite locus standi to sue by a Plaintiff it is not necessary to consider whether there is a genuine case on the merit.”

ALHAJI SAKA OPABIYI & ANOR. VS. LAYIWOLA MUNIRU (2011) 18 NWLR (Pt. 1278) 387 at 403 D – F per Adekeye, JSC who said: “Locus Standi is the legal capacity to institute an action in a court of law. Where a plaintiff is held to lack the locus standi to maintain an action, the finding goes to the issue of jurisdiction as it denies the court jurisdiction to determine the action. Jurisdiction is in other words, a radical question of competence – a court can only be competent when the case comes by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction. Madukolu v. Nkemdilim (1962) 2 SCNLR Pg. 341, Oloriode v. Oyebi (1984) 1 SCNLR Pg. 390, A.G. Anambra State v. A.G. Federation (1993) 6 NWLR (Pt. 302) Pg. 692, Thomas v. Olusoye (1986) 1 NWLR (Pt. 18) 669, A.G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) PG. 552.” The same position was espoused recently in the case of KAYODE BAKARE & ORS. V. CHIEF EZEKIEL AJOSE-ADEOGUN & ORS. (2014) 2 SCM 62 at 83 E – G where ARIWOOLA, JSC said: “What then is “locus standi?” This is a latin phrase meaning “place of standing”. The right to bring an action or to be heard in a given forum. See: Black’s Law Dictionary. Ninth Edition page 1026. In other words, locus standi is the legal capacity of plaintiff/claimant to institute an action in a court of law in exercise of the claimant’s constitutional right. That is the reason the issue can be raised in limine after the Statement of Claim has been filed and served. Therefore, ordinarily, if the Statement of Claim discloses no personal sufficient interest in the subject matter of the case, the plaintiff will have no locus standi to institute the action and the court will have no jurisdiction to entertain same. See: Professor T. M. Yesufu V. Governor of Edo State & Ors. (2001) LPELR 3526; (2001) 8 SCM 189.” per. PETER OLABISI IGE, J.C.A.

PRACTICE AND PROCEDURE: LOCUS STANDI; WHAT THE COURT MUST HAVE RECOURSE TO, TO DISCOVER WHETHER A PARTY HAS NECESSARY LOCUS STANDI TO INITIATE THE PROCEEDING

The Statement of Defence is not relevant for consideration as one does not find a cause of action or the reasons for it in a Statement of Defence. See: ALHAJI AMINU IBRAHIM VS. MR. FELIX OSIM (1988) 3 NWLR (PART 82) 257 at 271 where Obaseki, JSC had this to say: “The Court does not embark on inquisitorial investigation where nothing illegal is apparent on the pleadings. The law is settled that when an objection is raised that the Statement of Claim does not disclose a reasonable cause of action, it is the Statement of Claim that has to be examined and not the Statement of Defence to ascertain whether there is a reasonable cause of action before the Court. Unless there is a counter-claim, one does not expect to find a cause of action in a Statement of Defence. It is therefore premature to advert to the defences contained in the Statement of Defence as the appellant would want us to do.”

The processes to be looked at are the Writ and Statement of Claim, where the action is commenced by a Writ of Summons or the endorsement on the Originating Summons and the Affidavit in Support where it is an action begun by Originating Summons, in order to decipher the standing of the Plaintiff as well as the examination of the Court’s jurisdiction.

See: (1) MR. SUNDAY ADEGBITE TAIWO V. SERAH ADEGBORO & ANOR. 11 NWLR (Pt. 1259) 562 at 579 H to 580 A – B per RHODES-VIVOUR, JSC who held:

“A Plaintiff satisfies the Court that he has locus standi if he is able to show that his civil right and obligations have been or are in danger of being infringed. There must be a nexus between the claimant and the disclosed cause of action concerning his rights or obligations and locus standi is determined by examining only the Statement of Claim. Furthermore, in determining whether a party has locus standi the chances that the action may not succeed is an irrelevant consideration. See EJIWUNMI vs. COSTAIN (WA) PLC (1998) 12 NWLR (Pt. 576) Pg. 149; WILLIAMS v. DAWODU (1988) 4 NWLR (Pt. 87) Pg. 189; in A. G. KADUNA STATE vs. HASSAN (1985) 2 NWLR (Pt. 8) 483.”

KAYODE BAKARE & ORS. V. CHIEF EZEKIEL AJOSE-ADEOGUN & ORS. (2014) 2 SCM 62 at 83 H – I to 84 A – D where ARIWOOLA, JSC said as follows:-

“The question of what gives a plaintiff the standing to sue for locus standi has been the subject of a number of judicial decisions: See: Momoh Vs. Olotu (1970) 1 All NLR 1171; Senator Adesanya Vs. The President (1981) 2 NCLR 3581, (1981) 5 SC 112; Adefulu Vs. Oyesile (1989) 5 NWLR (Pt. 122) 377; Owodunni Vs. Registered Trustees of C.C.C. (2000) 10 NWLR (Pt. 675) 315. This court has maintained on locus standi that a plaintiff, to enable him invoke the judicial power of the Court must show sufficient interest or threat of injury he would suffer which is being sought to be protected.

How then does the plaintiff show that it has the necessary or required standing to institute an action? It is now trite that in the determination of locus standi, the Plaintiff’s Statement of Claim should be the only process that should be considered or should receive the attention of the Court. The Court has maintained this stand. In Adesokun vs. Prince Adegorolu (1991) 3 NWLR (Pt. 179) 261, this Court held that in order to determine whether or not a plaintiff has locus standi, it is the Statement of Claim that must be considered. Hence, the well established principle of law that a defendant who challenges the locus standi of the plaintiff in limine is deemed to accept as correct all the averments contained in the Statement of Claim.

In Owodunni Vs. Registered Trustees of Celestial Church of Christ (2000) 10 NWLR (Pt. 675) 315, this Court held that the question whether or not a plaintiff has locus standi in a suit is determinable in the consideration of the totality of all the averments in the Statement of Claim. In other words, to ascertain the locus standi of a plaintiff in a suit, it is the statement of Claim alone that has to be carefully scrutinized. This is to see whether or not it has disclosed his interest and how he acquired such interest or how such interest has arisen in the subject matter of the action. See: Taofik Disu & 13 Ors. Vs. Alhaja Silifat Ajilowura (2006) 12 (Pt. 2) SCM 1.”

The Learned trial Judge was therefore wrong in holding that:

“Before a complaint of lack of Locus Standi can be made against a person, the facts of the case must be before the Court. The facts of a case are before the Court when pleadings are settled. It is after the pleadings have been filed that it can be said with a measure of certainty that the person against whom the complaint is made has or has not a place to stand in the case. See LAURITA OKAFOR ANOR. VS. ELIZABETH ONEDIBE & 3 ORS. (2003) 9 NWLR PART 825 page 399 at 403.

The Law is now settled that in an application of this nature, which alleges lack of standing to sue, the Court will at the case before it to ascertain whether the plaintiffs have any standing to sue or lack of it. I therefore hold that the defendants not having reacted to the averments in the Statement of Claim of the Plaintiffs, the Court cannot at this stage state with a measure of certainty say whether the Plaintiffs have the Locus Standi to bring the issue of abuse of court process …” per. PETER OLABISI IGE, J.C.A.

PRACTICE AND PROCEDURE: DEMURER; THE DEFINITION OF A DEMURER

Now what is “Demurrer”? Demurrer has been defined in numerous cases. In the case of TIJANI BAMBE & ORS VS ALHAJI A. ADERINOLA & ORS (1977) 1 SC 5 – 6, the Supreme Court per MADARIKAN, J.S.C. said: “The word “demurrer” came from the Latin word “dimorari” meaning to “wait” or “stay”. Before demurrer was abolished, one of the methods of fighting opponent’s pleading was by demurrer. The party who demurred would not proceed with his pleading but having raised point of law as to whether any case had been made out in his opponent’s pleading for him to answer, awaited the decision on that point”. In the case of MOBIL OIL NIG. PLC VS IAL 36 INC. (2000) 6 NWLR (Part 659) 146 at 167 G – H, KARIBI-WHYTE J.S.C. (as he then was) said of demurrer as follows:- “A demurrer is a known and well accepted common law procedure which enables a Defendant who contends that even if the allegations of facts as stated in the pleading to which objection is taken are true, yet their legal consequences are not such as to put the Defendant (the demurring party) to the necessity of answering them or proceeding further with the cause. This, concisely stated, is the concept of the rules as formulated. As has often been pointed out in several decided cases including those decided by this Court, the whole basis of a demurrer is in effect to short circuit the action and by a preliminary point of law to show that the action founded on the writ and statement of claim cannot be maintained. See LEWIS, J.S.C. in AINA V TRUSTEES OF RAILWAY CORPORATION PENSIONS FUND (1970) 1 ALL NLR 281 at p. 283, Mayor of Manchester V Williams (891) 1 QB. 94” per. PETER OLABISI IGE, J.C.A.

COURT: JURISDICTION; SITUATIONS WHERE THE JURISDICTION OF COURT CAN BE RAISED

It is settled that objection to the jurisdiction of Court can be taken at any time. The position of the law is that it would be raised in any of the following situations.

(a) on the basis of the statement of claim; or

(b) on the basis of evidence received; or

(d) on the face of the Writ of Summons where appropriate, as to capacity in which the action was brought, or against who the action was brought.” per. PETER OLABISI IGE, J.C.A.

JUSTICES

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

PETER OLABISI IGE Justice of The Court of Appeal of Nigeria

FREDRICK O. OHO Justice of The Court of Appeal of Nigeria

Between

1. SIR TOBIAS UKAEGBU

2. EZE BONIFACE ONUOHA

3. SIR FESTUS NWOHA

4. CHIEF CORNELIUS EBEM NJOKU

5. BERNARD AGU

6. LOUIS NWAIWU

7. GERALD IGWE

8. JAMES IYIAKA

(For themselves and as representing members of purported Umunakanu Owerre Town Union/Community)

9. THE EXECUTIVE GOVERNOR OF IMO STATE

10. ATTORNEY GENERAL OF IMO STATE

11. RT HON. GODFREY DIKEOCHA

(Special Adviser to the Governor on Local Government & Chieftaincy Affairs)

12. HON. STANFORD ONYIRIMBA – Appellant(s)

AND

1. NZE OLIVER NWANUFORO

2. NZE RAPHAEL IWUCHUKWU

3. CHIEF F.I. NWACHUKWU

4. CYRIACUS OTUONYE

5. CHIEF ANTHONY AGU

6. NZE CYRIACUS ONUOHA

7. CHIEF ONUOHA E. ONUOHA

8. DR. EMMANUEL C. AMAECHI

9. NZE EUGENE OLEKA

(For themselves and as representing the Ezeadike Umunakanu Town Union/Community except the 1st – 8th Defendants) – Respondent(s)

PETER OLABISI IGE, J.C.A. (Delivering the Leading Judgment): This Interlocutory appeal emanated from the Ruling of the High Court of Imo State delivered on the 19th day of October, 2006 by Honourable Justice N.B. UKOHA.

The facts culminating into this appeal stem out of the Respondents’ action in Suit HOW/325/2004 wherein by their Writ of Summons issued out of the aforesaid Court on 23rd day of September, 2004, they are claiming against Appellants as follows:

“PARTICULARS OF CLAIM

The plaintiffs claim against the defendants jointly and severally is as follows:-

1. Declaration that the recognition of one Boniface Onuoha as a traditional ruler of a nonexistent Umuakanu Owerre Autonomous Community in Ehime Mbano Local Government Area is unconstitutional, illegal, null and void and of no effect whatsoever.

2. Declaration that Ezeadike Umunakanu Community is the proper name of the Unit to be granted Autonomous status in Ehime Mbano Local Government area with Chief Onuoha Ephraim Onucha as the Traditional ruler.

3. An order of court directing the 9th, 10th and 11th defendants to take urgent steps to create the plaintiff’s Community as Ezeadike Umunakanu Autonomous Community with Chief Onuoha Ephraim Onucha as the traditional ruler in accordance with the custom and tradition of the people of the area.

4. An injunction restraining the 3rd defendant Boniface Onuoha from holding himself out or continuing to hold himself out and from parading himself as a Traditional ruler in a purported Umunakanu Owerre which is actually Ezeadike Umunakanu Community.

5. An injunction restraining the 9th – 10th and 11th defendants by themselves their servants and persons representing them from creating Umunakanu “Owerre Autonomous Community” in the place of Ezeadike Umunakanu Owerre Autonomous Community in the Ehime Mbano Local Government Area and from recognizing and giving any certificate of recognition to the 3rd defendant as a traditional ruler and from giving the 3rd defendant any staff of office as such traditional ruler.

6. An injunction restraining the defendants and each of them by themselves, their servants, agents and privies from coronating the 3rd defendant as an Eze of purported Umunakanu Owerre Autonomous Community within the area known as Ezeadike Umunakanu Community.

The Plaintiff’s and the 1st-8th defendants reside at Ezeadike Umunakunu Owerre in the Ehime Mbano Local Government Area of Imo State. The 9th, 10th, 11th, and 12th defendants are Imo State Government functionaries in Owerri.”

The Respondents as Plaintiffs filed their statement of Claim in the matter on 24th day of October, 2005.

The Appellants, without filing a Statement of Defence in the action, proceeded to file a Motion On Notice wherein they sought for the striking out of the Respondents’ action on the ground that they lacked the Locus Standi to initiate the action. The said motion reads as follows:-

MOTION ON NOTICE

“PURSUANT TO SECTION 6(6)(B) OF THE 1999 CONSTITUTION

OF THE FEDERAL REPUBLIC OF NIGERIA

ORDER & RULES 2(1)

IMO STATE HIGH COURT (CIVIL PROCEDURE) RULES, 1988

TAKE NOTICE that the Honourable Court shall be moved on the 21st day of December, 2005 at the hour of 9 O’clock in the fore-noon or so soon thereafter as the Plaintiff/Applicant or counsel on its behalf can be heard praying the HONOURABLE Court for an Order.

a. Striking out this Suit on ground that from the Plaintiffs/Respondents’ Statement of Claim in this Suit they lack the locus standi to institute it against the Defendants/Applicants and especially against the 1st to 8th Defendants/Applicants.

b. And for such order or further orders as this Honourable Court may deem fit to make in the circumstance of this suit.

AND FURTHER TAKE NOTICE that the grounds for this application are as deposed to in the Affidavit in support of the Motion Paper.

DATED AT OWERRI THIS 15TH DAY OF DECEMBER, 2005.

The said motion to strike out the Respondents suit was duly heard by the Learned trial Judge who in his considered Ruling delivered on 19/10/2006 held among others as follows:

The statement of claim was filed on 24/10/2005. The defendants/applicants are yet to file their statement of Defence. The Plaintiffs/Respondents by their statement of claim and also the submissions of their counsel, raised several issues that tend to show that the defendants/applicants ought to give reply to from the various paragraphs of the plaintiffs statement of claim, it does appear that they have pleaded enough facts that gave them rights, interests and obligations beyond reasonable doubt to put them in the standing to bring this action. See ELENDU VS EKWOABA (1995) 3 NWLR part 386 page 704 at 751. Furthermore, the plaintiffs by paragraph 2 of their statement of claim, say they are bringing this action in a representative capacity for themselves and on behalf of their community. The Ezeadike community thereby claiming that they have the locus standi to prosecute this action see VICTOR ADEGOKE ADEWUMI & ORS VS A.G. EKITI STATE & 6 ORS (2002) 2 NWLR part 751 page 474 at 480 Ratio 5.

I had earlier in this ruling stated what a locus standi means. Usually, it is a complaint made against the plaintiff. The complaint means that the plaintiff or person against whom it is made has no place to stand in the suit, that he cannot in law prosecute the suit, and that he is not competent to bring the action. Before a complaint of lack of locus standi can be made against a person, the facts of the case must be before the Court. The facts of a case are before the Court when pleadings are settled. It is after the pleadings have been filed that it can be said with a measure of certainty that the person against whom the complaint is made has or has not a place to stand in the case. See LAURITA OKAFOR NOR VS ELIZABETH ONEDIBE & 3 ORS (2003) 9 NWLR PART 825 PAGE 399 AT 402-403.

The law is now settled that in an application of this nature, which alleges lack of standing to sue, the Court will look at the case before it to ascertain whether the plaintiffs have any standing to sue or lack of it. I therefore hold that the defendants not having reacted to the averments in the statement of claim of the plaintiffs, the Court cannot at this stage state with a measure of certainty say whether the plaintiffs have the locus standi to bring the issue of abuse of Court process raised by the plaintiffs in their submission to the effect that the defendants/applicants who had earlier made a similar application to this Court, withdraw same and that by so doing has abused the process of this Court. An abuse of Court process means that the process of the Court has not been used bonafide and properly. It also connotes the employment or judicial process by a party in improper use to the irritation and annoyance of his opponent. See ARUBA VS AIYELERI (1993) NWLR PART 280 142 AT 249 Paragraph D-E. In the plaintiff’s counsel submission to show an abuse of Court’s process, counsel did not show how the withdrawal of the earlier Motion caused irritation and annoyance on the plaintiffs/respondents. In other words, mere voluntary withdrawal of an earlier motion by the defendants/applicants cannot amount to an abuse of Court’s process.

In the light of the foregoing, I therefore hold that the defendants/applicants have not clearly shown to the Court that the plaintiffs have no locus standi to initiate this action. The application is premature, lacks merit and therefore should be dismissed. It is accordingly dismissed. To ensure speedy trial of this case, the defendants are hereby granted the leave within 30 days file their statement of Defence and serve same on the plaintiffs who upon receipt of same are given 14 days to reply to the statement of defence if they so desire.

Counsel to the Respondents apply for a cost of N2,000.00

Counsel to the Applicant offers N500.00

Court – I make an order of a cost of N500.00 against the applicant.

(Sgd.) (Hon. Justice N.B. UKOHA)

Judge

19/10/06”

Dissatisfied with the above decision of the Learned trial Judge, the Appellants, Defendants at the Court below appealed to this Court vide Notice of Appeal dated 24th day of October, 2006 filed on 25th day of October, 2006. It contains three grounds of appeal which, with their particulars, are as follows:

GROUNDS OF APPEAL

GROUND ONE

The learned trial judge erred in law in holding that the Plaintiffs/Respondents have the Locus Standi to institute this Suit against the 1st to the 8th Defendants/Appellants.

PARTICULARS OF ERROR

i. In its Ruling dated the 19th of October, 2006 the Lower Court concluded that the court cannot at this stage with a measure of certainty say whether the Plaintiffs have no locus standi to bring this action or not

ii. Having reached the above conclusion it was clear that the lower Court was wrong to hold that the application to strike out Suit for lack of locus standi was premature and lacks merit.

GROUND TWO

The learned trial Judge erred in law when she held “that the statement of claim was filed on 24/10/2005. The Defendants/Applicants are yet to file their statement of defence. The Plaintiffs/respondents by their statement of claim and also the submissions of their Counsel raised several issues that tend to show that the Defendants/Applicants ought to give reply to ….. before a complaint of lack of locus standi can be made against a person the facts of the case must be before the Court. The facts of a case are before the Court when pleadings are settled. It is after the pleadings have been filed that it can be said with a measure of certainty that the person against whom the complaint is made has or has not a place to stand in the case.”

PARTICULARS OF ERROR

i. It is not the law that pleadings, namely the statement of claim and statement of Defence must be filed before the issue of lack of locus standi or otherwise can be raised and decided.

ii. The failure of Defendant to file a Statement of Defence has no bearing whatsoever in consideration of the locus standi of the Plaintiff in a case.

iii. In deciding whether the Plaintiff has or lacks locus Standi, the Court is confined to the statement of claim alone or in some cases along with the writ of summons.

GROUND THREE

The learned trial judge erred in law when she held that “the law is now settled that in an application of this nature, which alleged lack of standing to sue, the Court will look at the case before it to ascertain whether the Plaintiffs have any standing to sue or lack of it. I therefore hold that the Defendants not having reacted to the averments in the Statement of claim of the plaintiffs the Court cannot at this stage state with a measure of certainty whether the plaintiffs have no locus standi to bring this action or not.”

PARTICULARS OF ERROR:-

i. The learned trial judge did not correctly state the position of the law in the portion quoted above.

ii. It is obvious that it was this erroneous belief of the trial Judge that both the Statement of claim and the statement of defence must be filed that influenced her decision.

iii. There are ample averments in the statement of claim to assist the Lower Court in deciding that the subject matter of the suit hinges on the creation of Umunakanu Owerri Autonomous Community and Ezeship or traditional ruler-ship of Umunakanu Owerri Autonomous Community which the Plaintiffs made clear in their statement of claim that they are not interested in.

iv. That it is obvious from the statement of claim, namely the fact that from the Plaintiffs’ claim they said they are representing Ezeadike Umunakanu Town Union/Community and the 1 to 8 defendants as representing members of purported Umunakanu Owerri Town Union/Community and some paragraphs of the statement of claim and the reliefs sought that the plaintiffs are not interested in Umunakanu Owerri Autonomous Community and Eze-ship or Traditional rulership of Umunakanu Owerri Autonomous Community.

v. There was no consideration of the effect of Sections 24 and 28 of Imo STATE OF Nigeria Traditional Rulers and Autonomous Communities Law, 1999 on the locus standi of the Plaintiffs.

The Appellants filed their Brief of argument on 7th day of September, 2011. It is dated same date. The Respondents filed their Brief of Argument dated the 15th day of December, 2011.

The said Respondent’s Brief was deemed duly filed on 8th day of May, 2012.

Appellants reply Brief of Argument dated 8th day of May, 2012 was filed same date. The appeal was argued on 10th day of February, 2015 when the Learned Counsel for the parties adopted their Briefs of Argument.

The learned counsel to the Appellants B.N. ONUOHA Esq distilled two issues for determination namely:

i. Whether the Court below was right in holden (sic) that except a statement of Defence is filed in this suit the Honourable Court would not be in a position to determine whether the Respondents as Plaintiffs in the Court below have Locus Standi to prosecute this suit?

ii. Whether Respondents as plaintiffs in the Court below have locus standi to institute this suit against the 1st – 8th Appellants?

On his part High Chief Professor J.I.J. Otuka for the Respondents generated three issues for determination of this appeal viz:

(i) Whether the learned Judge erred in law when he held that before a complaint of lack of locus standi can be made against a person the court must be seized (sic) of the facts of the case which is by way of pleadings being settled.

(ii) Whether the learned Judge erred in law when he held that the plaintiffs/Respondents had locus standi in bringing the suit against the 1st – 8th Defendants/Appellants.

(iii) Whether the Plaintiffs/Respondents do not have locus standi to institute this Suit against the 1st-8th Defendants.

I believe that having regard to the grounds of appeal filed by the Appellants, it will be apposite to consider this appeal on the basis of the two issues formulated by the Appellants as they encompassed the three issues nominated by the Respondents.

ISSUE 1

WHETHER THE COURT BELOW WAS RIGHT IN HOLDEN (SIC) THAT EXCEPT A STATEMENT OF DEFENCE IS FILED IN THIS SUIT THE HONOURABLE COURT WOULD NOT BE IN A POSITION TO DETERMINE WHETHER THE RESPONDENTS AS PLAINTIFFS IN THE COURT BELOW HAVE LOCUS STANDI TO PROSECUTE THIS SUIT?

The Learned Counsel to the appellants B.N. ONUOHA Esq immediately answered the question raised under issue one that based on the decided authorities the Lower Court was wrong in holding that except the appellants as Defendants filed their statement of Defence, the Court would not be in a position to determine whether the Respondents as Plaintiffs have locus standi to institute this suit. The Learned counsel made reference to the portion of the Ruling of the Lower Court where it was so held that is, page 270 of the record. That the position of the law is certainly not as stated by the trial Court relying on the case of ADESANOYE VS ADEWOLE (2006) 14 NWLR (Pt 1000) 242 at 274 DLF 278 and 285-286 thereof per NIKI TOBI JSC.

(2) A.G. ANAMBRA STATE VS A.G. FEDERATION (2007) 12 NWLR (PART 93) G-H

(3) OLANIYAN VS ADENIYI (2007) 3 NWLR (PART 1020) 1 at 26 E-G.

(4) TAIWO VS ADEGBORO (2011) 11 NWLR (PART 1259) 562 at 580 b-d.

He submitted that the 2nd Appellant did not make himself a traditional ruler and that Appellants did not create UMUNAKANU OWERRI AUTONOMOUS COMMUNITY. That if there is a dispute in this matter, it is between the Respondents and the 9th – 11th Defendants. That Section 7 of the Imo State of Nigeria Law No.3 OF 1999 has given the 9th Defendant unfettered discretion to appoint any person as the Traditional Ruler of an autonomous Community B.N. Onuoha Esq for the Appellants prays the Court to hold that the Court below was wrong in dismissing the application of the Appellants challenging the locus standi of the Plaintiffs now Respondents on the ground that there was no statement of Defence.

In response to the above submission under issue 1, Prof J.I.J. Otuka submitted that the Learned trial Judge was right in holding that there must be a defence filed before the appellants could challenge the locus standi of the Plaintiffs/Respondents. That pleadings must be settled. The Learned Professor is of the view that the decision of the trial Court was supported by the case of LAURITA OKAFOR & ANOR VS ELIZABETH ONEDIBE & ORS (2003) 9 NWLR PT 825 Page 399 AT 402-403 AND 414 C-E. That the argument of Appellants is baseless. That the decision of Lower Court is supported by Order 24 Rules 1 & 2 of Imo State High Court (Civil Procedure) Rules 1988 that provided that no demurrer shall be allowed and that parties are entitled to raise points of law in their pleadings to be disposed of by the Judge who tries the cause at or after the trial. That the Appellants ought to have raised the point of law challenging the locus standi of the Appellants in their statement of Defence. That that would have afforded the Court a measure of certainty to determine it without falling into the trap of conjecture. That by their failure to file Statement of Defence; the Appellants have simply demurred in breach of provisions of Order 24 Rule 1 supra. He enlisted Black’s Law Dictionary 9th Edition in the determination of the true meaning of Demurrer.

The Learned Professor submitted that where the rules of Court or statute provide a procedure by which a party can approach the Court such procedure must be tenaciously adhered to. That a party is not permitted to vary the procedure of his own accord. Professor Otuka for the Respondents made alternative submission that even if the trial Court was wrong in her approach (a fact not conceded by him) that the question is whether the decision occasion a miscarriage of justice. He answered the question in the negative. That it is not enough for the Appellants to show there was error committed by Lower Court the Appellants according to Prof. Otuka must show that the error is substantial or material and further show it was affected the merit of the case one way or the other, otherwise the appeal will be dismissed. He relied on the cases of (1) ADEYEMI VS A.G. OYO STATE (1984) 1 SCNLR 525 (2) ONOJOBI VS OLANIPEKUN (1985) 4 SC (Pt.2) 156. (3) ONIFADE VS OLAYIWOLA (1990) NWLR (Pt.161) 130.

That the Appellants have not shown any miscarriage of justice. That by the submissions and authorities cited by the Appellants, they have depicted the ruling of the Lower Court as per incuriam.

That arriving at a decision per incuriam would not be a ground to set it aside. That the decision of the Lower Court was not per incuriam because it was based on LAURITA VS ONIDIBE supra.

That if as contended by the Appellants only statement of claim should be looked at, Prof OTUKA stated there are avalanche of facts in paragraphs 1, 2, 3, 9 and 10 of the statement of claim conferring Locus Standi on the Respondents. He also relied on page 181 of the records and page 269 of the records referring to the pleadings of Respondents and finding of the trial Judge on them. This Court is urged to resolve issue one in favour of Respondents.

The Appellant in their reply Brief submitted that it was wrong for the Respondents who did not file Cross Appeal nor a Respondent’s Notice to now introduce the issue of demurrer. Appellants relied on the cases of:

1. EGBE VS. AWUMI (2011) 4 NWLR (PART 1238) 467 at 488 A – B.

2. CHAMI VS. UBA PLC. (2010) 18 WRN 1 at 19.

That in any case, a challenge to Locus Standi of a Plaintiff is not a demurrer action but issue concerning the right of party to bring an action pursuant to Section 6(6) of 1999 Constitution as amended and it is an issue which according to the Appellants borders on jurisdiction of the Court to entertain the suit. Reference was made to the cases of:

1. AROWOLO VS. AKAIYEJO (2012) 4 NWLR (PART 1290) 286.

2. BEWAJI VS. OBASANJO (2008) 9 NWLR (PART 1093) 546.

3. BOLAJI VS. BAMGBOSE (1986) 4 NWLR 633.

4. BASINCO MOTORS LTD. V. WOERMANN LINE (2010) 10 WRN 1 at 32.

5. FAWEHINMI VS. PRESIDENT FRN (2008) 23 WRN 65 at 109.

6. EBONGO VS. UWEMEDIMO (1995) 8 NWLR 411 P22 at 51 per NIKI TOBI JCA (as he then was).

Appellants urged the Court to strike out the first issue formulated by the Respondents.

Now the hallmark of the Appellants’ submission under issue one is that the Learned trial Judge erred in Law in holding that the Appellants who are the Defendants at the Lower Court must first file the Statement of Defence joining issues with the Respondents (Plaintiffs) on their Statement of Claim and formally raise issue of Locus Standi of the Respondents in their Statement of Defence before they can move the Court to strike out the Plaintiffs suit on account of lack of standing to sue or initiate the suit against the Appellants.

The term locus standi and its denotation have been explained in numerous cases:

1. In the cases of CHIEF GAFARU AROWOLO V. CHIEF SUNDAY E. OLOWOOKERE & ANOR. (2011) 18 NWLR (Pt. 1278) 280 at 300 G – H 301 A – B where ADEKEYE, JSC said:

The right to sue can only be conferred by status or by Constitution or by some customary law- particularly the Chiefs Law.”

2. MR. SUNDAY ADEGBITE TAIWO v. SERAH ADEGBORO & ANOR. (2011) 11 NWLR (Pt. 1259) 562 at 579 F – H where RHODES-VIVOUR, JSC said:

Where a Plaintiff lacks Locus Standi, it will rob the Court of jurisdiction.

1. BASINCO MOTORS LTD. VS. WOERMANN-LINE & ANOR (2009) 13 NWLR (PART 1157) 149 H to 980 A – C where Adekeye, JSC said:

(a) A legal or justiciable right;

(b) Show sufficient or special interest adversely affected;

And on page 199 C – E Fabiyi JSC said:

2. ALHAJI SAKA OPABIYI & ANOR. VS. LAYIWOLA MUNIRU (2011) 18 NWLR (Pt. 1278) 387 at 403 D – F per Adekeye, JSC who said:

“Locus Standi is the legal capacity to institute an action in a court of law. Where a plaintiff is held to lack the locus standi to maintain an action, the finding goes to the issue of jurisdiction as it denies the court jurisdiction to determine the action. Jurisdiction is in other words, a radical question of competence – a court can only be competent when the case comes by due process of law and upon fulfillment of any condition precedent to the exercise of jurisdiction.

Madukolu v. Nkemdilim (1962) 2 SCNLR Pg. 341, Oloriode v. Oyebi (1984) 1 SCNLR Pg. 390, A.G. Anambra State v. A.G. Federation (1993) 6 NWLR (Pt. 302) Pg. 692, Thomas v. Olusoye (1986) 1 NWLR (Pt. 18) 669,

A.G. Lagos State v. Dosunmu (1989) 3 NWLR (Pt. 111) PG. 552.”

The same position was espoused recently in the case of KAYODE BAKARE & ORS. V. CHIEF EZEKIEL AJOSE-ADEOGUN & ORS. (2014) 2 SCM 62 at 83 E – G where ARIWOOLA, JSC said:

“What then is “locus standi?” This is a latin phrase meaning “place of standing”. The right to bring an action or to be heard in a given forum. See: Black’s Law Dictionary. Ninth Edition page 1026.

In other words, locus standi is the legal capacity of plaintiff/claimant to institute an action in a court of law in exercise of the claimant’s constitutional right. That is the reason the issue can be raised in limine after the Statement of Claim has been filed and served. Therefore, ordinarily, if the Statement of Claim discloses no personal sufficient interest in the subject matter of the case, the plaintiff will have no locus standi to institute the action and the court will have no jurisdiction to entertain same. See: Professor T. M. Yesufu V. Governor of Edo State & Ors. (2001) LPELR 3526; (2001) 8 SCM 189.”

As can be seen above, the importance of Locus Standi to sue by a Litigant cannot be over-emphasized. By the myriad or plethora of authorities on the issue and connotation of Locus Standi or standing to sue, I am in complete agreement with the submission of the Learned Counsel to the Appellants that the only way to find out or discover whether Respondents have necessary Locus Standi to initiate the proceeding herein will be a necessity to have a recourse to scrupulous examination of the Writ of Summons and the Statement of Claim of the Respondents only.

“The Court does not embark on inquisitorial investigation where nothing illegal is apparent on the pleadings. The law is settled that when an objection is raised that the Statement of Claim does not disclose a reasonable cause of action, it is the Statement of Claim that has to be examined and not the Statement of Defence to ascertain whether there is a reasonable cause of action before the Court. Unless there is a counter-claim, one does not expect to find a cause of action in a Statement of Defence. It is therefore premature to advert to the defences contained in the Statement of Defence as the appellant would want us to do.”

See: (1) MR. SUNDAY ADEGBITE TAIWO V. SERAH ADEGBORO & ANOR. 11 NWLR (Pt. 1259) 562 at 579 H to 580 A – B per RHODES-VIVOUR, JSC who held:

2. KAYODE BAKARE & ORS. V. CHIEF EZEKIEL AJOSE-ADEOGUN & ORS. (2014) 2 SCM 62 at 83 H – I to 84 A – D where ARIWOOLA, JSC said as follows:-

The Learned trial Judge was therefore wrong in holding that:

I am not unmindful of the argument of Prof. Otuka for Respondents that the motion challenging the locus standi of Respondents without the filing of a Statement of Defence is a demurrer under Order 24 Rules 1 and 2 of the Imo State High Court (Civil Procedure) Rules 2008 and the counter argument of Onuoha Esq for Appellants.

“The word “demurrer” came from the Latin word “dimorari” meaning to “wait” or “stay”.

Before demurrer was abolished, one of the methods of fighting opponent’s pleading was by demurrer. The party who demurred would not proceed with his pleading but having raised point of law as to whether any case had been made out in his opponent’s pleading for him to answer, awaited the decision on that point”.

In the case of MOBIL OIL NIG. PLC VS IAL 36 INC. (2000) 6 NWLR (Part 659) 146 at 167 G – H, KARIBI-WHYTE J.S.C. (as he then was) said of demurrer as follows:-

“A demurrer is a known and well accepted common law procedure which enables a Defendant who contends that even if the allegations of facts as stated in the pleading to which objection is taken are true, yet their legal consequences are not such as to put the Defendant (the demurring party) to the necessity of answering them or proceeding further with the cause. This, concisely stated, is the concept of the rules as formulated. As has often been pointed out in several decided cases including those decided by this Court, the whole basis of a demurrer is in effect to short circuit the action and by a preliminary point of law to show that the action founded on the writ and statement of claim cannot be maintained.

See LEWIS, J.S.C. in AINA V TRUSTEES OF RAILWAY CORPORATION PENSIONS FUND (1970) 1 ALL NLR 281 at p. 283, Mayor of Manchester V Williams (891) 1 QB. 94”

With due deference to PROF OTUKA, his position and that of the Learned trial Judge have no support in law. The fact that demurrer has been abolished does not mean there are no methods in the rules of Imo State High Court 1988 or the Constitution and settled position of the law by which a defendant can in limine challenge the Plaintiffs’ case if he conceives there is a point of law in his favour especially where it relates to jurisdiction. I call in aid the Supreme Court decision in the case of ALHAJI D.A. ONIBUDO & ORS V ALHAJI A.W. AKIBU (1982) 7 SC 60 at 75 where ANIAGOLU, J.S.C. said:

“What the Defendants should have done at the close of the plaintiffs’ pleadings was to move the Court as they were entitled to do under the Rules, to strike out the claim, and the Statement of Claim, as disclosing no cause of action, against the Defendants.

This they did not do instead they proceeded to file their statement of Defence and answer the Plaintiffs’ pleadings.

Provisions have been made, in lieu of the old procedure of Demurrer which in most cases have been abolished, in the High Court Rules of the various States in the Country, for peremptorily disposing of cases at the close of Plaintiff’s Statement of claim or at the close of both the Plaintiff’s and Defendant’s pleadings”.

On page 77, ANIAGOLU J.S.C who delivered the judgment continued and said:

“In Lagos State, from where this case originated, similar provision has been made which would have enabled the Defendants to peremptorily have the case struck out or dismissed without filing their Statement of defence, or going into any form of trial.”

See also EGBUZIEM VS EGBUZIEM (2005) 4 NWLR (PART 916) 488 at 499 D-G & 500 A-E.

It is thus crystal clear, as the day follows the night, that the Defendants need not file a Statement of Defence to challenge any procedural defect or irregularity of any suit particularly where it touches or concerns the jurisdiction of the Court and incompetence of the action itself.

The decision of the Supreme Court in the case of CHIEF BERTHRAND E. NNONYE VS D.N. ANYICHIE & ORS (2005) 2 NWLR (PART 910) 623 at 647 D-H to 648 A is instructive. AKINTAN J.S.C. has this to say:

“it may be mentioned that the effect of non-service of a pre-action notice, where it is statutory required, as in this case is only an irregularity which, however, renders an action incompetent. It follows therefore that the irregularity can be waived by a defendant who fails to raise it either by motion or plead it in the statement of defence. See Kastina Local Authority V Makudawa (1971) 1 NMLR 100. If, therefore, a Defendant refuses to waive it and he raises it then the issue becomes a condition precedent which must be met before Court could exercise its jurisdiction. See Madukolu v Nkemdilim Supra. The defence, like any similar defence touching on jurisdiction, should be raised preferably soon after the Defendant is served with the Writ of Summons. It could so be pleaded in the Statement of Defence.

…………………..

It is settled that objection to the jurisdiction of Court can be taken at any time. The position of the law is that it would be raised in any of the following situations.

(a) on the basis of the statement of claim; or

(b) on the basis of evidence received; or

(d) on the face of the Writ of Summons where appropriate, as to capacity in which the action was brought, or against who the action was brought.”

Where, as in this case, the Defendants/Appellants brought their application without filing a Defence, the law only deemed the appellants to have admitted the facts contained in the Statement of Claim as not justifiable, and such admission is only for the purpose of their application or motion challenging the locus standi of the respondents.

See KAYODE BAKARE & ORS V CHIEF EZEKIEL AJOSE-ADEOGUN & ORS (2014) 2 SCM 62 AT 861-874 where Ariwoola, JSC said:

“As earlier stated the position has long been made clear and established, that in determining the locus standi of a plaintiff, it is the Statement of Claim that should be scrutinized by the Court. But in demurrer proceedings where pleadings have not been completed but the point of law is being taken, the defendant is deemed to have admitted the averments in the statement of claim. In other words, in the challenge to locus standi of a plaintiff without having filed defence the defendant relies on the statement of claim and urges the Court to strike out the matter on the ground that the statement of claim does not show locus standi of the plaintiff. See DISU & ORS V AJILOWURA (supra).”

Consequently issue 1 is resolved in favour of the Appellants.

ISSUE 2

WHETHER THE RESPONDENTS AS PLAINTIFFS IN THE COURT BELOW HAVE LOCUS STANDI TO INSTITUTE THIS SUIT AGAINST THE 1ST TO THE 8TH APPELLANTS.

The Learned Counsel to the Appellant B.N ONUOHA Esq argued that the Respondents as Plaintiffs do not have the locus standi to institute the present suit against the Appellants as 1st-8th Defendants in the action. He relied on the exact quotation from the findings of the learned trial Judge on page 270 of the record as he did under issue one to submit that the simple meaning to be read into the findings of the Lower Court on page 270 of the record is that looking at the Plaintiffs now Respondents, statement of claim which is on pages 180-185 of the record, it is not clear that the Respondents as Plaintiffs have locus standi to institute this suit. That the main reliefs claimed in the suit are declaratory in nature. He relied on paragraph 3(a) and (b) of the said statement of claim and contended that paragraph 3(e) – (f) are simply ancillary reliefs hanging on reliefs contained in paragraph 31(a) and (b). He reproduced the said paragraph 31(a) and (b) to submit and draw attention of this Court to the facts that the Respondents instituted the Suit for themselves and as representing Ezeadike Umunakanu Town Union/Community except the 1st-8th defendants and that 1st-8th defendants now Appellants were sued “for themselves and as representing members of purported Umunakanu Owerre Town Union/Community.”

Appellants submitted that from the averments in the statement of Claim that the Respondents have no interest whatsoever in Umunakanu Owerre Autonomous Community and in 2nd Appellant as the traditional ruler of Umunakanu Owerre Autonomous Community which the Respondents described as non-existing according to Appellants. That the onus is on the Respondents to show sufficient interest in the subject matter since the Appellants had challenged their standing. That the Court has to confine itself to the examination of the statement of claim. He relied on the cases of:

1. ADEANOYE VS ADOWOLE (2006) 14 NWLR (Pt 1100) 242 at 274 D-G, 278 B and 285-286 H-B

2. BOLAJI VS BAMGBOSE (1986) 4 NWLR (PART 37) 632

3. OWODUNNI VS REGISTERED TRUSTEES OF CELESTIAL CHURCH OF CHRIST (2000) 10 NWLR (PART 675) 315.

4. TAIWO VS ADEGBORO (2011) 11 NWLR (PART 1259) 562 AT 586 B-D.

That creation of Autonomous Community status in Imo State and particularly the appointment of a person as an Eze of an Autonomous Community is regulated by Section 7(1) of Imo State Traditional Rulers and Autonomous Community Law No.3 of 1999. That it has been judicially recognized that the Governor of the State has been vested with unfettered power of recognizing and appointing an Eze (Traditional Ruler). He relied on the case of GOVERNOR, IMO STATE VS AMUZIE (2009) 13 NWLR (PART 1157) 34 at 69-70 E-C.

That the case of Respondents is not that the 9th Defendant in the Suit appointed the 2nd Appellant the Eze of EZEADIKE UMUNAKANU COMMUNITY which they represent but that 2nd Defendant was recognized as Eze of UMUNAKANU OWERRI AUTONOMOUS COMMUNITY and that there is nothing to show they represent Appellants Community. Their Counsel also relied on Section 24 of Imo State of Nigeria Law No.3 of 1999 to submit that a person who objects the creation of new autonomous community must be members and come within the said Autonomous Community. The Learned Counsel to the Appellants also relied on paragraph 30 of the Statement of Claim to contend that it is an admission by the Respondents that they are not from Umunakanu Owerre Autonomous Community. That in effect all the Respondents want from Court is to create “EZEADIKE UMUNAKANU AUTONOMOUS COMMUNITY” for them.

That the Lower Court has no powers under any statute to create such Ezeadike Umunakanu Autonomous Community for them. The Appellants urged the Court to hold that Respondents have no locus standi to institute the present suit.

In his own submission, the Learned Counsel to the Respondent, Professor Otuka relied on paragraphs 1, 2, 3, 4, 9-10, 17 of the statement of claim to submit that purported Umunakanu Owerre Autonomous Community was part and parcel of Ezeadike Umunakanu. That the Respondents are querying the legality of the creation of an Autonomous Community in their homeland with the name “Umunakanu Owerre” which according to Respondents is not their name and that the purported recognition of a candidate other than the candidate of their choice by the Governor was wrong.

On the submissions made on Section 24 of Imo State of Nigeria Law No.3 of 1999, Professor Otuka referred to paragraphs 1, 2, 3 and 4 of the Statement of Claim as clearly showing that both the Respondents and the 1st – 8th Appellants came from the same Community. He also relied on the finding of the learned trial Judge in page 259 of the record. Prof Otuka urged the Court to resolve the issue in favour of the Respondent and to dismiss the appeal.

As stated under issue one, the law remains inviolate that it is the claim(s) of the Plaintiffs that determine whether the Respondents have locus standi and whether the Court has jurisdiction to entertain the Respondents suit. It is therefore necessary to examine the Statement of Claim of the Respondents. The entirety of the paragraphs of the said statement of claim are as follows:-

“STATEMENT OF CLAIM

1. The Plaintiffs and the Defendants have from time immemorial been members of Ezeadike Umunakanu Community and/or Town Union

2. The Plaintiffs brought this action for themselves and as representing Ezeadike Umunakanu town Union/Community except 1st-8th defendants.

3. The 1st – 8th Defendants are renegade members of Ezeadike Town Union/Community, who opted out of the Ezeadike Town Union and purport to form a rival Union called Umunakanu Owerre Town. They are also the people who purport to form a rival Community within Ezeadike Community called Umunakanu Owerre Autonomous Community.

4. The 1st Defendant along with eighteen others were appointed into the Ezeadike Umunakanu Electricity Works Committee and as the Chairman of the said Ezeadike Electricity Project, 1st defendant refused to render the account of his Stewardship and in the alternative declared himself the Chairman of a non-existent Umunakanu Owerre Town Union/Community.

5. The 9th Defendant is the Executive Governor of Imo State whose function includes creation of Autonomous Communities and the recognition of qualified persons as Eze and the granting of Staff of Office, where he deems it fit and proper to do so.

6. The 10th Defendant is the statutory representative of the Imo State Government in all Suits by and against the said Government.

7. The 11th Defendant is the Special Adviser to the Governor of Imo State, who advises the said Governor in matters related or connected with Chieftaincy and Autonomous Community matters.

8. The 12th Defendant is the Honourable Member representing Ehime Mbano L.G.A. in Imo House of Assembly, he is also a person whose opinion is always sought in matters concerning or affecting the welfare of the people of Ehime-Mbano L.G.A.

9. The 1st Defendant along with one Dr. Vitalis Elemwune conspired among themselves and in readiness to set confusion in the Ezeadike Town Union went and set up and inaugurated a parallel Umunakanu Owerre Town Union alongside Ezeadike Umunakanu Town Union, an event which made the Plaintiffs to petition to the Police of the Zone 6 Calabar, complaining of the said conduct likely to cause breach of the peace.

10. Both Plaintiffs and Defendants went to Court over the crises, seeking for pronouncement of the Court on which of the parallel Town Unions is legitimate and has the force of law. The 1st defendant and three others filed Suit No. HME/6/98 while the 1st Plaintiff and seven others filed Suit No. HME/9/98 all challenging the existence of non existence of Ezeadike Umunakanu Town Union vis a vis Umunakanu Owerre Town Union.

11. The judgment of the High Court sitting at Umuelemai in Suit No. HME/6/98, and HME/9/98 upheld the existence of Ezeadike Umunakanu Town Union and or Community, dismissed and faulted the existence of Umunakanu Owerre Town Union and or Community. The said judgment is pleaded and will be relied upon during trial, particularly pages 8 – 11 of the said judgment.

12. Both parties applied for Autonomous status and each party presented their case before Hon. Justice Paul Onumajulu’s Commission, on the creation of Autonomous Communities in Imo State.

13. The Report of the Commission did not recommend Autonomy to either of the parties. The recommendation of the Commission is hereby pleaded and will be relied upon during trial.

14. That though the Paul Onumajulu Commission did not recommend the Ezeadike Umunakanu as an Autonomous Community, but the judgment of the High Court at Umuelemai did pronounce Ezeadike Umunakanu Community as a Community known to law and as such is entitled to be granted Autonomous Status by the 9th to 12th Defendants.

15. That by virtue of the said Judgment in Suit No. HME/6/98, and HME/9/98 the purported Umunakanu Owerre Town Union or Community is not recognized in law and as such not entitled to be granted an Autonomous Status.

16. The recognition of one Boniface Onuoha 2nd Defendant as a traditional ruler of nonexistent Umunakanu Owerre Autonomous Community by the 9th to 12th Defendants is illegal, null and void and of no effect.

17. Ezeadike Umunakanu Community is the proper name of the Community to be granted Autonomous Status by the 9th to 12th Defendants with Chief Onuoha Ephraim Onuoha as the Traditional Ruler with the title as the “Dike Ji Ofo 1” of Ezeadike Umunakanu Autonomous Community.

18. Umunakanu Owerre Autonomous Community was first pronounced as an Autonomous Community by the News point Newspaper of 2 – 12th September 2004, the said Newspaper Publication is hereby pleaded and will be relied upon during trial and subsequently followed by an Announcement at the Imo Broadcasting Corporation (I.B.C) which said Publication and Announcement Plaintiffs protested against and will rely on the receipt registering their protest on trial.

19. The Imo State Official Gazette No. 4 Volume 28 of 29th October 2003, did not show Umunakanu Owerre as among the Autonomous Communities newly created. Plaintiffs will rely on the said gazette during trial.

20. The 2nd Defendant Boniface Onuoha was recognized as a traditional ruler of Umunakanu Owerre and issued with certificate of recognition by the 9th Defendant on 14/10/2004. When Umunakanu Owerre had not been conferred with an Autonomous Status in any Government Official Gazette.

21. This action by the 9th – 11th Defendants is most irregular and illegal.

22. Plaintiffs challenged this illegal action in Suit No. HOW/325/2004 and while this Suit is pending before His Lordship, the 9th – 11th Defendants purport to have created and gazetted Umunakanu Owerre Autonomous Community in a gazette No. 3 Volume 30 of 21st April 2005. Captioned “ISLN NO. 7 of 2005 referred to as an Amendment or Corrigendum to supplement the Imo State of Nigeria Extra-ordinary gazette No. 4 Volume 28 of 29th October 2003. Seven Months after the pendency of this Suit before the Honourable Court.

23. That the referred Corrigendum or Amendment Gazette will be relied upon during trial.

24. The Creation of Umunakanu Owerre new Autonomous Community in the said gazette came up while this Suit is pending before this Court and as such subjudice and contemptuous of this Honourable Court.

25. The name of the components or villages listed in the fourth column of the said gazette are different from the names of villages listed in the Memorandum presented to Hon. Justice Paul Onumajulu Commission by the 1st – 8th Defendants in September 2001. Plaintiffs hereby give them notice to produce the Memorandum presented to Hon. Paul Onumajulu Commission.

26. Two Villages of Ofeokwe and Okpaziza listed in the said Amendment gazette were not in the said Memorandum presented to the Paul Onumajulu Commission in 2001.

27. The 2nd Defendant Boniface Onuoha had been recognized and issued with Certificate of recognition and staff of Office before the Creation of the purported Umunakanu Owerre new Autonomous Community. Plaintiffs hereby give notice to the said Boniface Onuoha to produce the said Certificate during trial.

28. The gazette No. 3 Volume 30 of 21st April 2005, titled, “An Amendment or Corrigendum to Supplement Gazette No. 4 Volume 28 of 29th October 2003″ which was not signed by the 9th Defendant (Imo State Governor), Can not purport to Amend anything. For Umunakanu Owerre Autonomous Community was not listed in the previous Gazette No. 4 Volume 28 of 29th October 2003 which the purported Amendment Gazette No. 3 Volume 30 of 21st April 2005 purports to Amend. It is what that is in existence that can be corrected, amended or added something to Umunakanu Owerre was not gazette in gazette No. 4 Volume 28 of 29th October 2003 and as such cannot be corrected or amended. Plaintiffs shall rely on the said gazettes during trial.

29. The Umuelemai High Court Judgment in Suit Nos. HME/6/98, HME/9/98 and the pending Suit HOW/325/2004 were presented to and known to the 9th – 11th defendants before they purport to recognize the said Boniface Onuoha as an Eze and the subsequent gazetting of Umunakanu Owerre as an Autonomous Community.

30. The High Court Judgment in Suits Nos. HME/6/98 and HME/9/98 was known to the 9th – 11th Defendants before the exercise of Recognition of the said Boniface Onuoha and the purported creation of Umunakanu Owerre Autonomous Community. It ought to have been the Plaintiffs Community Ezeadike Umunakanu that should have been granted an Autonomous status in the interest of justice and Equity.

31. Wherefore the Plaintiffs Claim against the Defendants jointly and severally as follows-

a. Declaration that the recognition of one Boniface Onuoha as a traditional ruler of non-exissting Umunakanu Owerre Autonomous Community in Ehime Mbano Local Government area is unconstitutional, illegal, null and void and of no effect whatsoever.

b. Declaration that Ezeadike Umunakanu Community is the proper name of the unit to be granted autonomous status in Ehime-Mbano Local Government Area with Chief Onuoha Ephraim Onuoha as the traditional ruler with title as the Dike 1 of Ezeadike.

c. An Order of Court directing the 9th, 10th and 11th Defendants to take urgent steps to create the Plaintiffs community as Ezeadike Umunakanu Autonomous Community with Chief Onuoha Ephraim Onuoha as the traditional ruler in accordance with the custom and tradition of the people of the Area.

d. An injunction restraining the 2nd Defendant Boniface Onuoha from holding himself out or continuing to hold himself out and from parading himself as a traditional ruler in a purported Umunakanu Owerre Autonomous Community which is in reality Ezeadike Umunakanu Community.

e. An injunction restraining the 9th, 10th and 11th Defendants by themselves, their servants and persons representing them from creating Umunakanu Owerre Autonomous Community in place of Ezeadike Umunakanu Autonomous Community in the Ehime-Mbano Local Government Area and from recognizing and giving any Certificate of recognition and staff of office to the 2nd Defendant as a traditional ruler of the purported Umunakanu Owerre Autonomous Community.

f. An injunction retraining the Defendants, by themselves, their servants, Agents and privies from coronating the 2nd Defendant as an Eze of the purported Umunakanu Owerre Autonomous Community within the Area known as Ezeadike Umunakanu Community.”

I am of the firm view that a community reading of the entire paragraphs contained in the Statement of Claim of the Respondents (Plaintiffs) shows glaringly that the Respondents have locus standi to institute the suit herein against the Appellants.

The learned trial Judge was right when she held that:

“The Plaintiffs/Respondents by their statement of claim and also the submissions of their Counsel, raised several issues that tend to show that the defendants/applicants ought to give reply to from the various paragraphs of the Plaintiffs statement of claim, it does appear that they have pleaded enough facts that gave them rights, interests and obligations beyond reasonable doubt to put them in standing to bring this action.”

The learned trial Judge is also justified in holding that the Defendants now Appellants have not clearly shown the Court below that the Plaintiffs/Respondents have no locus standi to initiate the action.

It is my firm view also that the Respondents (Plaintiffs) have pleaded sufficient facts to entitle them to locus standi to sue the Appellants. The Respondents have locus standi in instituting this Suit against the Appellants (1st-8th Defendants).

Issue 2 is therefore resolved against the Appellants. The appeal is partially allowed in respect of Issue One only.

Notwithstanding that Issue One was resolved in favour of the Appellants, the appeal of the Appellants cannot be sustained, this Court having upheld the conclusion of the Lower Court that the Respondents have locus standi to sue the Appellants. The Appellants’ appeal is hereby dismissed. The Ruling of the Imo State High Court delivered by Honourable Justice N.B. UKOHA on 19/10/2006 is hereby affirmed.

Parties are to bear their respective costs.

IGNATIUS IGWE AGUBE, J.C.A.: I had read in advance the erudite judgment of my learned brother Ige, JCA, and I agree completely with his stance that notwithstanding the fact that Issue One was resolved in favour of the Appellants, the Appellants’ Appeal cannot be sustained as this Court has upheld the reasoning and conclusion of the Lower Court that the Respondents have locus stand, to sue the Appellants. This Appeal is accordingly dismissed without costs to the Respondents and the Ruling of the Honourable Justice N.B. Ukoha, affirmed.

FREDERICK O. OHO, J.C.A.: I have had the privilege of reading in draft the judgment of my learned Brother, P.O. Ige, JCA, just delivered. I agree with his reasoning and conclusion. The Appeal is devoid of merit despite the fact that the issue one was resolved in favour of the Appellants. The Ruling of the Imo State High Court, delivered by N.B. Ukoha, J. on the 19-10-2006 is hereby affirmed. There shall be no orders as to cost.

Appearances

B. N. Onuoha, Esq.For Appellant

AND

Prof. J. I. Otuka with him Vitalis Nwonu, Esq.For Respondent