MAZI KENNETH EJIOGU & ORS v. H.R.H EZE BENJAMIN ONWUSURUAKA & ORS
(2019)LCN/13882(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of April, 2019
CA/OW/118/2016
RATIO
PRACTICE AND PROCEDURE: AFFIDAVIT: DEFINITION AND IMPORTANCE OF COUNTER AND FURTHER AFFIDAVIT
At this juncture, it is pertinent to look at what a counter and further affidavit connote and the role they play in litigations.
In the case of OGEDENGBE SURAJUDEEN OLA VS. UNIVERSITY OF ILORIN & 2 ORS. (2014) LPELR?22781 (CA) at pages 18?19 paras F?B this Court, Ilorin Division defines Counter affidavit as follows:-
“A counter-affidavit is an affidavit made to contradict and oppose facts in another affidavit. A valid counter-affidavit must contain a valid denial of each fact sought to be denied and the Respondent’s version of what happened. A valid denial is a denial pointedly directed to the facts intended to be denied. A simple narration of a Respondents’ different and distinct sets of facts deposed to in an affidavit does not qualify as a counter affidavit which has denied the facts deposed to in an affidavit. See: Citizens International Bank Ltd. V. SCOA Nigeria Ltd. &Anor. (2006) LPELR-5509 (CA).” PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
INTERPRETATION OF STATUTES: DUTY OF COURTS IN INTERPRETING STATUTES
The first and constant duty of the Court in interpreting a statute is to have regard to the words of the statute, but when the statute contains expressions, which has already received judicial interpretation or been used in an authoritative statement of the rules of common law, the Court may legitimately take into consideration the interpretation they have received or the sense in which they have been used. See OJI V. QUEEN (1961) LPELR ? 25123 (SC)at page 6 paras B?D.
It is trite that the duty of the Court is to interpret the statute in accordance with the intention of the law makers. See ISAH VS. STATE (2017) LPELR?43472 (SC). The Apex Court in UGWU VS. ARARUME (2007) 12 NWLR (Pt. 1048) 367 @ 498, put it thus:-
A statute, it is always said, is ?the will of the legislature? and any document which is presented to it as a statute is an authentic expression of the legislative will. The function of the Court is to interpret that document according to the intent of those who made it, thus, the Court declares the intention of the legislature.? PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
AFFIDAVIT: IMPORTANCE OF AN AFFIDAVIT
This is so because the facts averred in an affidavit are facts averred under oath and cannot be treated as mere assertion for if not contradicted the Court can act on them unless they are within the special knowledge of the Court not to be true. Affidavit evidence is for the Court to act upon once not contradicted as in this case.? See JIMOH VS. C.O.P. (2006) 22 WRN 77 at 118 lines 25?35.
PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
CONSTITUTIONAL LAW: THE RIGHT AND FREEDOM OF FREE ASSOCIATION
This is because the right and freedom of free association provided under Section 40 of the 1999 Constitution of the Federal Republic of Nigeria (as amended) is sacrosanct and cannot be taken away under any guise, as decided in ERONINI VS. ERONINI (2013) 14 NWLR (Pt. 1373) 32 at 56. PER IBRAHIM ALI ANDENYANGTSO, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
IBRAHIM ALI ANDENYANGTSO Justice of The Court of Appeal of Nigeria
Between
1. MAZI KENNETH EJIOGU
2. MR. FRANCIS OSUJI
3. MR. VITUS EMENALO
4. MR. SUNNY ODUNZE
5. CHIEF PAUL DIKE
6. INNOCENT ANYAKA
7. ENG. CLETUS IGBOJIOWU
8. H.R.H. EZE C. O. OFOEGBU
(For themselves and as representing Duruewuru Village, Amucha Autonomous Community Njaba L.G.A of Imo State) Appellant(s)
AND
1. H.R.H. EZE BENJAMIN ONWUSURUAKA
2. ICHIE EMMA EZEALA
3. CHIEF CALUSTUS OFOMA
(For themselves and as representing Umuamusa Autonomous Community of Imo State) Respondent(s)
IBRAHIM ALI ANDENYANGTSO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Imo State, delivered by the Hon. Justice T. E. Chukwuemeka-Chikeka, J. sitting at the Nkwere Judicial Division, on the 15th day of June, 2015 against the Claimants. The Claimants at the trial Court had, by Originating Summons, asked the trial Court to interpret the provisions of the Imo State of Nigeria Traditional Rulers and Autonomous Communities Law No. 6 of 2006 as follows:-
?1. Having regards to the Traditional Rulers And Autonomous Communities Law No. 6, 2006 of Imo State, in compliance of which Umuamusa Autonomous Community, Njaba Local Government Area of Imo State was created and gazetted in the Imo State of Nigeria Official Gazette No. 2, Volume 35, ISLN NO. 3 of 2011, whether Duruewuru Village of the Claimants constitutes one of the component villages of Umuamusa Autonomous Community.
?2. If the answer to question (1) above is in the negative, then whether Duruewuru Village of the Claimants is not entitled to remain in Amucha autonomous community and conduct its affairs without interference from the Defendants.”
The Claimants then sought four reliefs as follows:-
1. A declaration that Duruewuru village of the Claimants is not among the 16 villages shown at the 4th column of the Imo State of Nigeria Official Gazette No 2 Volume 35, ISLN No. 3 of 2011 as components of Umuamusa Autonomous Community, Njaba Local Government Area, Imo State.
2. A declaration that the Claimants? Village, Duruewuru, is still a component of Amucha Autonomous Community, Njaba Local Government Area, Imo State.
3. A declaration that the Claimants are entitled to their right of freedom of association, including freedom from being forced to belong to the Defendants? own autonomous community.
4. An order of perpetual injunction restraining the Defendants by themselves, their servants, agents, privies, assigns from interfering with the Claimants? quiet enjoyment and running of their affairs as a component of Amucha Autonomous Community, Njaba Local Government Area,Imo State.?
The grounds of the reliefs are as follows:-
(1) Umuamusa Autonomous Community of the Defendants was created by Imo State Government in 2011 from Amucha Autonomous Community of the Claimants. The Claimants did not support the agitation for the creation of the new autonomous community out from Amucha, and have never wanted to belong to the new autonomous Community. The claimants? village according to the instrument creating the Defendants, is not among the villages that make up the said Umuamusa Autonomous Community.
(2) The Defendants have continued to harass, intimidate and attempt to force the Claimants to be a part of the Defendants through forced levies, communal labour, denying Claimants of use of the Claimants? village properties, forming parallel village Unions with those of the Claimants, unlawful arrests of the Claimants, banning or putting conditions on the Claimants holding their legitimate village meetings.
(3) Recriminations against the Claimants by the Defendants for the Claimants? continued allegiance to the traditional stool and institutions of Amucha Autonomous Communities rather than to those of Umuamusa Autonomous Community.
(4) Likelihood of a breakdown of law and Order in the communities of the parties. Only a pronouncement of a Court of competent jurisdiction can stem the tide.”
The Originating Summons and the supporting affidavit are contained on pages 1?57 of the Record of Appeal, (henceforth referred to simply as ?the Record?). The Defendants filed a counter affidavit in opposition to the Originating Summons (pages 160?217 of the Record). The Claimants filed a further affidavit contained on pages 224 ? 234 of the Record. Counsel on both sides filed and adopted their respective written addresses on 24th April, 2015 and on 15th June, 2015 judgment was delivered, refusing the reliefs sought by the claimants.
Peeved by that judgment, the Claimants filed an eight ground Notice of Appeal on 20th August, 2015, (pages 251?257 of the Record). The Record was, with the leave of Court granted in a Motion filed on 6/1/2017, deemed properly compiled and transmitted to this Court on 15/1/18.
Henceforth in this judgment the Claimants and Defendants shall be referred to as the ?Appellants? and ?Respondents? respectively.
The 8 grounds of Appeal, shorn of their particulars are as follows:-
GROUND 1
ERROR IN LAW
The Learned trial Judge erred in law when he said that the Court cannot speculate whether Duruewuru is included as a component Village of Amucha Autonomous Community because the Claimants did not include the law creating Amucha Autonomous Community.
GROUND 2
ERROR IN LAW
The Learned trial Judge erred in law when he struck out and discountenanced paragraphs 5 and 6 of the further affidavit of the Claimants on the ground that it (sic) raises (sic) new issues.
GROUND 3
ERROR IN LAW
The Learned trial Judge erred in law when he held that Duruewuru metamorphosed into 14 villages based on the decision or agreement of the people.
GROUND 4
ERROR IN LAW
The Learned trial Judge erred in law when after making a finding that Duruewuru was not included in the villages that make up Umuamusa Autonomous Community as shown in Imo State Official Gazette on Creation of Autonomous Community 2011, he turned around to dismiss the Claimants? claim.
GROUND 5
ERROR IN LAW
The Learned trial Judge erred in law when he relied on extraneous matters, documents not before the Court and contradictory evidence in coming to the conclusion that Duruewuru metamorphosed into 14 villages.
GROUND 6
ERROR IN LAW
The Learned trial Judge erred in law when he held that the claimant (sic) did not show that any of their fundamental rights as enshrined under Chapter IV of the 1999 (sic) Constitution (as amended) was infringed upon.
GROUND 7
ERROR IN LAW
The Learned trial Judge erred in law when he held that the claimants did not show that they were forced to belong to the Umuamusa Autonomous Community.
GROUND 8
The judgment is against the weight of evidence.?
Reliefs sought in this appeal are as follows:-
?1. That the judgment of the trial Court be set aside.?
?2. An order granting all the relief?s (sic) sought by the claimants in their originating summons.?
Out of the 8 grounds, the Appellants in their Brief of Argument, settled by C. N. Nwokorie Esq., of Dr. I. N. Ijiomah (SAN), Appellants? Counsel, and filed on 28th February, 2018, distilled four issues for determination of the appeal which are:-
?1. Whether the trial Court was right when he struck out and discountenanced paragraphs 5 and 6 of the Appellants? further affidavit in response to the Respondents? counter affidavit on the ground that they raised new issues. (Distilled from Ground 2 of the notice of appeal).
2. Whether the trial Court was right when he (sic) held that Duruewuru village was dissolved into 14 villages by the consent of the people and that there is nothing to show that Duruewuru was originally included as component village of Amucha Autonomous Community. (Distilled from Grounds 1, 3, and 5 of the notice of appeal).
3. Whether the trial Court was right in holding that Duruewuru is part of the Respondents? Umuamusa Autonomous Community after making a finding that it was not listed in the gazette as one of the villages that make up Umuamusa Autonomous Community. (Distilled from Grounds 4 and 7 of the notice of appeal).
4. Whether the trial Court was right when he (sic) held that the Appellants did not show that any of their fundamental rights as enshrined under Chapter IV of the 1999 Constitution (as amended) was infringed upon by the Respondents. (Distilled from Ground 6 of the notice of appeal).”
The
