CHIEF CHJIOKE COLLINS EGWUAGWU v. ENGR. MIKE IGBOMEZIE & ORS
(2018)LCN/12365(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of February, 2018
CA/OW/90/2015
RATIO
APPEAL: INTERLOCUTORY APPEAL
“Thus, where an interlocutory appeal is on issue(s) that can abide the final decision of the trial Court on the substantive Suit, parties are enjoined to exercise patience and pursue the trial of the substantive case to conclusion, and, thereafter, take up the appeal (including the one accrued from the interlocutory decision), if the said appeal still becomes necessary. And that is meant to avoid the usual waste of judicial time in pursuit of frivolous appeals, while staying/stalling or frustrating the substantive case of the parties at the Court below. See the case of Nwana Vs UBN Plc (2013) LPELR – 21828 CA; (2015) 1 NWLR (Pt.1439) 79, held 9: ‘Interlocutory appeals should not be embarked upon when that would amount to frustrating expeditious determination of the substantive matter at the Lower Court, exposing litigants to unnecessary hardship, waste of resources and judicial time, which at the end brings no benefit to any party nor advance the interest of justice.’ PER ITA GEORGE MBABA, J.C.A.
CONSTITUTION: ON THE ISSUE OF CHIEFTAINCY TITLE
“In the above case Kutigi JSC (as he then was) said: ‘In my view Section 22(2) (3) and (6) of the Bendel State Chieftaincy Law, 1979, cannot, in any way, seek to derogate or circumscribe the provisions of Section 236 (1) of the 1979 Constitution. Any attempt to do so would make it inconsistent with that constitutional provision and therefore to that extent, void. A decision that it delay the right of an aggrieved party to come to Court or that it is a condition precedent to the exercise of a right to file an action to be entertained by the High Court, seeks to circumscribe the powers of the High Court under Section 236(1) of the Constitution and to that extent it is void and of no effect.’ See also A.G. Abia State Vs Agharanya (1999) 6 NWLR (Pt.607), wherein the defendant also fought, as in this case, that aggrieved party can only commence proceedings after the Governor had exercised his power of recognition.” PER ITA GEORGE MBABA, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
CHIEF CHJIOKE COLLINS EGWUAGWU Appellant(s)
AND
1. ENGR. MIKE IGBOMEZIE
2. CHIEF ANYAKANSI HERBERT
3. CHIEF OKPE CHARLES
4. HIGH CHIEF M.A. EMEDORONWA
(For themselves and on behalf of the people of Umunwama Autonomous Community, Izombe, Oguta L.G.A. except the 4TH Defendant and his supporters)
5. GOVERNOR OF IMO STATE
6. ATTORNEY-GENERAL IMO STATE
7. GOVERNMENT OF IMO STATE Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment):
This is an interlocutory appeal, challenging the decision of the Imo State High Court in Suit No. HOW/695/2013, delivered on 8/12/2014 by Hon. Justice N.B. Ukoha, whereof the learned trial Court dismissed the challenge to its jurisdiction, for being premature and incompetent.
At the Lower Court, the Claimants (now 1st to 4th Respondents) had sought the following reliefs, against the 2nd set of Respondents (5th to 7th Respondents) and the Appellant, as follows:
(1) A declaration that by the native law and custom of the people of Umunwama Autonomous Community and the constitution guiding Ezeship stool in Umunwama Autonomous Community, Izombe, Oguta L.G.A. of Imo State, succession to the post of Eze/Traditional Ruler of Umunwama Autonomous Community, Izombe is to be non-hereditary rather rotatary among the six (6) chiefdoms that constitute Umunwama Autonomous Community.
(2) A declaration that the 1st Claimant at all material times has been identified, selected and appointed ?Eze? by the Umunwama Autonomous Community, Izombe, having validly passed through the screening, selection and presentation processes, with due process and in accordance with the customs and constitution, namely Umunwama Autonomous Community Chieftaincy guiding Ezeship stool in Umunwama Autonomous Community, Izombe, Oguta L.G.A Imo State, and the Traditional Rulers Autonomous Communities and Allied Matters Law No. 6 of 2006 of Imo State.
(3) A declaration that the 1st Claimant having been identified, selected and appointed Eze by the Umunwama Autonomous Community, according to custom and the said constitutions? and presented to the Oguta Local Government is the person entitled to be recognized by the 1st, 2nd and 4th Defendants.
(4) A declaration that the purported selection of the 3rd Defendant by the 1st, 2nd and 4th Defendants as the Eze-Elect of Umunwama Autonomous Community was wrong, illegal, therefore null and void and of no effect whatsoever in so far as the selection was contrary to customs (sic) law, laws and constitution and the relevant laws of Imo State.
(5) A declaration that the 3rd Defendant, not having been identified, selected and appointed Eze by the Umunwama Autonomous Community in accordance with the Custom, usages, traditional (sic) and the said constitutions of the said Community, cannot be made Eze of Umunwama Autonomous Community by the 1st, 2nd and 4th Defendants.
(6) An Order of Perpetual injunction restraining the 1st, 2nd and 4th Defendants, either by themselves or through their agents, servants, privies, members of staff, from recognizing the 3rd Defendant as Eze of Umunwama Autonomous Community and giving Certificate of Recognition and Staff of Office to the 3rd Defendant as the Eze of Umunwama Autonomous Community.
(7) An Order setting aside the purported selection of the 3rd Defendant as Eze-Elect of Umunwama Autonomous Community, made on the 13th day of September, 2013 or at any other date by the 1st, 2nd and 4th Defendants as it is contrary to the native law and custom, and constitutions of Umunwama Autonomous Community and the said relevant laws of Imo State.
(8) An Order of perpetual injunction restraining the 3rd Defendant from parading himself or causing anybody to regard or accord any regard to him as Eze-Elect of Umunwama Autonomous Community Izombe, Oguta L.G.A. Imo State and performing the duties of Eze of Umunwama Autonomous Community, Izombe.
Appellant, who was the 3rd Defendant, had entered a conditional appearance in the Suit and filed statement of defence. He also filed the application, seeking to strike out the Suit on the ground that ‘the Suit is pre-mature as no cause of action has yet arisen, in that the Governor has not yet exercised his statutory power of recognition before the Suit was filed.’
The Claimants had filed a Counter affidavit to oppose the motion. The trial Court, after taking arguments for and against the application, struck it out for being misconceived. (Page 541 of the Records of Appeal).
Appellant being dissatisfied, filed this appeal on 17/7/14, as per Notice of Appeal (containing 2 grounds of appeal, on pages 542 to 545 of the Records of Appeal). The Records of Appeal was regularized by the order of this Court on 20/3/17.
Appellant filed his brief of arguments on 4/5/2017 and distilled a lone Issue for the determination of the appeal, namely;
Whether, having regards to the reliefs Claimed by the 1st to 4th Respondents, the Lower Court was right, in holding that the 1st to 4th Respondents’ Suit is not pre-mature and that it has jurisdiction to entertain same. (Grounds 1 and 2)
The 1st set of Respondents (1st to 4th) filed their Brief on 22/5/2017 and also donated a lone Issue for the determination of the appeal:
“Whether the purported pre-maturity of the Suit is tenable such as to rob the Lower Court of its jurisdiction having regards to all the eight (8) distinct reliefs claimed by the 1st – 4th Respondents.”
I think the respective Issues for determination of the appeal by the two sides are the same, each side saying the same thing in its own way. I shall adopt the Appellant?s version to consider the appeal.
The 5th to 7th Respondents did not file any brief, and showed no interest in the appeal.
Appellant’s Counsel, Chief Okey Ehieze, who settled the brief, argued that under the Imo State Traditional Rulers and Autonomous Community Law No.6 of 2006, the recognition of a person as Eze of Autonomous Community is the Statutory function of the Governor (5th Respondent herein). He placed reliance on Sections 7(1), 8 and 9 of the said law, and said that a community reading of the said sections of the law – No.6 of 2006 would show that:
(1) There must be an instrument by which the 5th Respondent shall recognize a person as the Eze of an Autonomous Community
(2) Such recognition must be published in the Imo State Government Official Gazette, and;
(3) The Governor is required to issue a certificate of recognition to the person recognized as Eze.
He submitted that it is only when the above 3 conditions have been fulfilled, that the Governor could be said to have exercised his statutory function of recognition, under the law – No.6 of 2006 of Imo State; that in this case the two sides are at idem, that the Governor (5th Respondent) has not accorded recognition to any person as Eze of Umunwama Autonomous Community; that a look at the records of appeal, shows that Claimants did not plead or front load any of the conditions laid down in Sections 7, 8 and 9 of the Law No.6 of 2006. He argued that since the Governor had not exercised his statutory duty in favour of any person in respect of the Ezeship title, no party should be allowed to bring a Suit to stop the Governor from exercising his powers; that the Court can only exercise its powers, after the Governor had exercised his statutory function/powers; that a party should thereafter approach the Court, where he feels that the exercise of the power of the Governor has affected his rights, or was not done properly; he said that that principle is meant to avoid ambushing public officers by taking out actions to prevent them from carrying out their statutory functions, as that would ground the business of government. He relied on the case of A.G. Anambra State Vs Okafor (1992) NWLR (Pt.224) 396 at 419; Ajakaiye Vs Idehai (1994) NWLR (Pt.364) 504.
Counsel had faulted the trial Court’s perception, as to what was the main issue to be tried in the case before it, as pleaded by the Claimants (1st to 4th Respondents), as shown on page 541 of the Records. He argued that it is the entirety of the Plaintiff’s Claim (reliefs) that determines the jurisdiction of the Court. M.G.S. & L Ltd Vs W.B.S. LTD (2013) ALL FWLR (Pt.663) 1889 at 1909; that a cursory look at the totality of the facts averred in the Statement of Claim, will show that the whole Suit, aimed at stopping the Governor from exercising his statutory function by according recognition to the Appellant, whom Claimants (1st to 4th Respondents) alleged was not properly selected as Eze.
He urged us to resolve the Issue for Appellant.
Responding, Ama Akalonu Esq, who settled the brief for the 1st to 4th Respondents, called our attention to the reliefs sought by the 1st to 4th Respondents at the Lower Court; that it is from the Plaintiffs case (reliefs sought) that the jurisdiction of the Court can be determined. He said that out of the 8 reliefs, 5 are declaratory reliefs (namely reliefs 1 to 5) which carry the main thrust or gravemen of the Suit. He argued that Appellant?s objection only derived from the 6th Relief by the Claimants, which was only a consequential prayer. He relied on A.G. Kaduna State Vs Hassan (1985) 2 NWLR (Pt.8) 483, to say that a Court can make declarations of right, whether or not any consequential relief is or could be claimed; that no objection can be entertained to fetter the hand of the Court in making mere declarations of right. He also relied on Ikine Vs Edjerode (2002) FWLR (Pt.92) 1775; Beredugo Vs College of Science and Technology Port-Harcourt (1991) 4 NWLR (Pt.187) 65.
Counsel said that the case of A.G. Anambra State Vs Okafor (1992) NWLR (Pt.224) 396, which Appellant relied on was otiose, obsolete and overruled, and inapplicable in the circumstance of this case; he said that the said Traditional Rulers and Autonomous Communities Law of Imo State (No.6) 2006, which Appellant relied upon has provided stages/steps to be followed, preceding the recognition referred in Sections 7, 8 and 9 stated by Appellant. He relied on Section 5 of the said law, which he said must be complied with, and that the reliefs 1 to 5 of the Suit are founded on the said Section 5 of the Law No.6 of 2006. He relied on the case of Stowe Vs Stowe (2001) 5 NWLR (Pt.706) 394, to say that a Chieftaincy issue arises, once there is a question as to the validity of the selection, appointment, approval of appointment, recognition, grading, deposition or abdication of a chief; that each of the above circumstances would give rise to a cause of action. He also relied on Aroyewun Vs Adediran (2004) ALL FWLR (Pt.225) 1.
Counsel said that the case of A.G. Anambra State Vs Okafor (supra) was obsolete law, as it was jettisoned and/or overruled by the same Supreme Court, in the case of Osagie II Vs Offor (1998) 3 NWLR (Pt.541) 205, where it was held:
“An aggrieved party may at any stage in the selection process of a candidate in a chieftaincy matter, properly challenge the same in a Court of law.”
Counsel also relied on A.G. Abia State Vs Agharanya (1999) 6 NWLR (Pt.607) 362; Abu Vs Odugbo (2001) FWLR (Pt.69) 1260. He added that chieftaincy or Ezeship matters are governed by Customary Law, which must be proved by evidence. Olagbemiro Vs Ajagungbade III (1996) 6 NWLR (Pt.453) 180 Daramola Vs Govt. of Osun State (2004) ALL FWLR (Pt.192) 112. Thus, he said evidence has to be taken before the Suit can be determined; that it is only a valid selection and appointment of a candidate that can culminate in recognition of the candidate as Eze. Therefore, the appointment process can be challenged. Eze Vs Okechukwu (1998) 5 NWLR (Pt.548) 43.
Counsel urged us to resolve the Issue against the Appellant and dismiss the appeal.
RESOLUTION OF THE ISSUE.
I must state, straight away, that, in my opinion, this appeal was absolutely unnecessary, just as the application that led to it was uncalled for and ill-advised. And I think this is the type of appeal process that highlights the vice which the Hon. President of this Court sought to fight in the Practice Direction of this Court made in 2013 and 2014, which enjoins:
“Active Case Management discouraging interlocutory appeals and requiring parties, except in the most deserving cases, to subsume their interlocutory matters under a final appeal, or under the substantive suit at the Court.” See Paragraph 4(e) of the Practice Directions, 2014.
Paragraph 10(b) of the Practice Direction, 2013, says:
“Without prejudice to the foregoing, the Court shall refuse to hear appeals arising from interlocutory decisions of the Court below, where the matter deals with any of the issues listed in 3 above and the Court is of the opinion that the grounds raised in the appeal are such that can conveniently be determined by way of an appeal arising from the final judgment of the Court below
Paragraph 3(a) (ii) thereof, refers to ‘Interlocutory appeals, challenging the ruling of the Court below on interlocutory application heard in the Court.’
Thus, where an interlocutory appeal is on issue(s) that can abide the final decision of the trial Court on the substantive Suit, parties are enjoined to exercise patience and pursue the trial of the substantive case to conclusion, and, thereafter, take up the appeal (including the one accrued from the interlocutory decision), if the said appeal still becomes necessary. And that is meant to avoid the usual waste of judicial time in pursuit of frivolous appeals, while staying/stalling or frustrating the substantive case of the parties at the Court below. See the case of Nwana Vs UBN Plc (2013) LPELR – 21828 CA; (2015) 1 NWLR (Pt.1439) 79, held 9:
“Interlocutory appeals should not be embarked upon when that would amount to frustrating expeditious determination of the substantive matter at the Lower Court, exposing litigants to unnecessary hardship, waste of resources and judicial time, which at the end brings no benefit to any party nor advance the interest of justice.”
In the case of NJC Vs Agumagu (2014) LPELR – 24049 CA, this Court screamed:
“This Court always deprecated the act of using interlocutory appeals to frustrate the hearing and determination of substantive matters and I think this is one of the reasons the Practice Direction, 2013 came to being.”
I think Appellant had greatly misconstrued the case at the Court below, which challenged the process of his Selection by the 1st, 2nd and 4th Defendants (5th to 7th Respondents herein) and sought the intervention of the Court, claiming that 1st Respondent was rather the rightful person identified, screened, selected and appointed by the Umunwama Autonomous Community, Izombe, to occupy the office of Eze of that Community.
The Claimants (1st to 4th Respondents) had sought declarations to that effect and prayed for orders, accordingly. That was a credible complaint/dispute, which the Court was called upon to determine, and I think the trial Court rightly summed it, when it said on page 541 of the Records:
“In effect, by the Claimants’ Statement of Claim, part of the issues in controversy is the way and manner the 3rd Defendant was identified/and selected contrary to Section 5(1) of Law No.6 of 2006. In effect the issue of recognition is really not what is in issue but whether the identification and selection of 3rd Defendant by the 1st, 2nd and 4th Defendants, as against the 1st Claimant who was identified and selected by a constituted authority is right and proper. The said above issues in my considered view are disputed facts which can only be determined, not by affidavit evidence as in the present application, but by pleadings and calling of evidence.”
I am surprised Appellant and his Counsel appeared not to have understood that, but rather rushed to issue of need for recognition of a party by the Governor before the case can lie, by which time more damage would have been done before seeking redress, or the complaint would have become belated or stale, by reason of laches or acquiescence.
The case of A.G. Anambra State Vs Okafor, (supra) which Appellant placed much reliance on, is no longer a good law for the purpose sought by Appellant, having been jettisoned by subsequent cases, which recognize the rights of parties in chieftaincy matters to have their grievances determined by Court at any stage in the selection process. See the case of Osagie II Vs Offor (1998) 3 NWLR (Pt.541) 205; (1998) LPELR – 2785 (SC), where the Supreme Court said:
“An aggrieved party may at any stage in the selection process of a candidate in a Chieftaincy matter properly challenge the same in a Court of law.”
In the above case Kutigi JSC (as he then was) said:
“In my view Section 22(2) (3) and (6) of the Bendel State Chieftaincy Law, 1979, cannot, in any way, seek to derogate or circumscribe the provisions of Section 236 (1) of the 1979 Constitution. Any attempt to do so would make it inconsistent with that constitutional provision and therefore to that extent, void. A decision that it delay the right of an aggrieved party to come to Court or that it is a condition precedent to the exercise of a right to file an action to be entertained by the High Court, seeks to circumscribe the powers of the High Court under Section 236(1) of the Constitution and to that extent it is void and of no effect.”
See also A.G. Abia State Vs Agharanya (1999) 6 NWLR (Pt.607), wherein the defendant also fought, as in this case, that aggrieved party can only commence proceedings after the Governor had exercised his power of recognition. This Court, while interpreting Section 7 of the Traditional Rulers and Autonomous Communities Law of Abia State, 1981 (which is the same as Section 7 of the Imo State (Law No.6 of 2006), said, on page 370 of the law report:
“There is nothing in the Section which prevents an aggrieved person like the Respondent from bringing an action in the High Court to declare the nomination and the selection of the 6th Defendant/Appellant to be irregular, null and void, and restrain the Governor from giving recognition to him.”
As stated earlier in this judgment, I think Appellant jumped the gun when he called up Sections 7, 8 and 9 of the Imo State Traditional Rulers and Autonomous Communities Law No.6 of 2006 for the trial Court to determine, when the hearing of the case was yet to commence and evidence called in respect of the reliefs (1) to (5), which, actually, sought the Court to determine Section 5(1) of the said Law No.6 of 2006, vis-a-vis, the identification, screening and selection of the either 1st Claimant or 3rd Defendant (Appellant) as the Eze of Umunwama Autonomous Community. The said Section 5(1) of the Law (No.6) 2006, says: “Each Autonomous Community shall identify, select and appoint its ‘Eze’ and present him to the Local Government Council which has power or jurisdiction over the said Community.”
That, in the main, was what the case of the 1st to 4th Respondents sought the trial Court to determine as between 1st Respondent and the Appellant, before the issue of who should be recognized by the Governor (5th Respondent) as the Eze of the Community. The trial Court was right to refuse the application and should have dismissed it, instead of striking it out. The application stands dismissed.
The appeal is dismissed for lacking in merit, and Appellant shall pay the cost of the appeal, assessed at N100,000.00 (One Hundred Thousand Naira) only to the 1st to 4th Respondents.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have read before now and while in draft, a copy of the lead judgment of my learned brother, Hon. Justice Ita George Mbaba, JCA, which has just been delivered. The single issue raised in the appeal has been comprehensively and admirably dealt with by my noble Lord, Mbaba, JCA. I am thus, in complete agreement with the reasoning and also with the conclusion that the instant appeal matter lacks merit and should be dismissed. For the same reasons, I too find no iota of merit in the appeal and it is accordingly dismissed.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I agree.
Appearances:
CHIEF OKEY IHIEZEFor Appellant(s)
AMA AKALONU ESQFor Respondent(s)
