ANAMBRA STATE GOVERNMENT & ANOR v. ANAMBRA STATE HOUSE OF ASSEMBLY & ORS. (2012)

ANAMBRA STATE GOVERNMENT & ANOR v. ANAMBRA STATE HOUSE OF ASSEMBLY & ORS.

(2012)LCN/5583(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 18th day of July, 2012

CA/E/305/2007

RATIO

APPEAL: TRADITIONAL ROLE OF A RESPONDENT

The traditional role of a Respondent in an appeal is to defend the decision appealed against. PER ADAMU JAURO, J.C.A.

APPEAL: REQUIREMENT OF A RESPONDENT CHALLENGING THE JUDGMENT OF THE LOWER COURT

If however he wishes to depart from that role by attacking or challenging the judgment or ruling in any way, he is enjoined to file a cross appeal, since the main purpose of a cross appeal is to correct an error which is standing in the way of a respondent in the main appeal.

APPEAL: ESSENCE OF A GROUND OF APPEAL

The essence of a ground of appeal is to give notice of the appellant’s complaint against the decision on appeal to the court as well as the respondent. A ground of appeal must not therefore be vague or general and must constitute a challenge to the decision on appeal. PER ADAMU JAURO, J.C.A.

APPEAL: WHAT IS AN ISSUE FOR DETERMINATION

An issue for determination is the question in dispute between the parties, necessary for the determination of the suit.

See Akintola v. Solano (1986) 2 NWLR 598, Adejumo v. Avantegbe (1989) 3 NWLR (Pt.110) 417, Ejowhomu v. Edok-Eter Mandilas Limited (supra). PER ADAMU JAURO, J.C.A.

FAIR HEARING: CIRCUMSTANCES THAT CAN CONSTITUTE BREACH OF FAIR HEARING

Ordinarily where an issue has been raised by a party and the said issue distilled from the issues joined from the pleadings, the failure of the court to consider such an issue amounts to a breach of fair hearing hence occasioning a miscarriage of justice. See Brawal Shipping (Nigeria) Limited v. F. I. Onwadike Company Limited (2000) 11 NWLR (Pt.678) 387, Brayol v. Ahemba (1999) 10 NWLR (Pt.623) 381 at 392 – 393, Mogaji Atanda v. Salami Ajani (1989) 3 NWLR (Pt.111) 511 at 539, Katto v. C.B.N. (1991) 9 NWLR (Pt.214) 126 at 149. PER ADAMU JAURO, J.C.A.

JUSTICES

ABUBAKAR JEGA ABDULKADIR Justice of The Court of Appeal of Nigeria

ADAMU JAURO Justice of The Court of Appeal of Nigeria

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria

Between

1. ANAMBRA STATE GOVERNMENT
2. ATTORNEY-GENERAL, ANAMBRA STATE Appellant(s)

AND

1. ANAMBRA STATE HOUSE OF ASSEMBLY
2. HON. MIKE BALONWU, SPEAKER, ANAMBRA STATE HOUSE OF ASSEMBLY
3. THE CLERK, ANAMBRA STATE HOUSE OF ASSEMBLY
4. NZE EDWARD MADUKWE
5. CHARLES IKE
6. PAULINUS OKAFOR
7. CHIEF MARCEL ANOSIKE
8. ABUCHI OKOLI
9. MIKE OKAFOR
10. CHIEF J. C. EZEOKONKWO
11. EUGENE UGHANWA
12. PETER AGHADIUNA
13. CHIEF NWAKPADOLU
14. JOHN EKWELE
15. LIVINUS EZECHUKWU
16. PIUS ANENOBI
17. MIKE ORAMULU
18. ANSELEM UZOEZIE
19. C. OBI
For themselves and as representing Isioba, Uruagu Isuanaoma, Ifite-Aguleri, Umuchiana, Ugwu-Awgbu, Enugwu-Adazi, Ifite-Amanuke, Igboezunu Aguleri, Isiachina, Ikenga Nri, Osete, Ibughubu, Awuda Nnobi Achalaukwu and Akwaezekenyi respectively all being Autonomous Communities created by Autonomous Communities (Recognition) Law, 2002. Respondent(s)

ADAMU JAURO, J.C.A. (Delivering the leading judgment): The appeal herein is against the judgment of the High Court of Justice, Anambra State, Awka Judicial Division, holden at Awka, delivered on 11th December, 2006 by Hon. Justice Umegbolu Nri-Ezedi in suit No.A/98/2004.
CA/E/305/2007
The facts culminating in this appeal can be compressed as follows: On the 1st day of February, 2003, the Anambra State Government through the 1st Respondent enacted the Anambra State Autonomous Community (Recognition) Law 2002. As a consequence of the aforesaid Law, the communities of the 4th to 19th Respondents were recognized as autonomous communities and were listed in the schedule to the said law. On the 23rd day of March, 2004 the 1st Respondent enacted another law namely, Autonomous Communities (Recognition) Repeal Law 2004, which repealed the Autonomous Communities (Recognition) Law 2002, and thus abolished/withdrew the autonomous status accorded to communities of 4th to 19th Respondents by the Autonomous Communities (Recognition) Law 2002.
The 4th to 19th Respondents were aggrieved by the Autonomous Communities (Recognition) Repeal Law 2004, which abolished the autonomous status accorded to their respective autonomous communities. The 4th to 19th Respondents as representatives of the various communities recognized as autonomous communities by the Anambra State Autonomous Communities (Recognition) Law 2002, instituted an action in the court below, as plaintiffs against the 1st Respondent.
Subsequently, on 11th April, 2005 to be precise, the plaintiffs sought for and were granted leave to join four additional defendants. The parties joined by leave of court were, Anambra State Government, Attorney General Anambra State, Hon. Mike Balonwu, Speaker Anambra State House of Assembly and the Clerk Anambra State House of Assembly, as 2nd, 3rd, 4th and 5th defendants. See page 160 of the record.
In the action instituted in the lower court, the plaintiffs claimed for the following reliefs in paragraph 7 of their statement of claim, namely:
(i) “A Declaration that the Autonomous Communities (Recognition) Repeal Law 2004 is not a law of the Anambra State House of Assembly and is consequently unconstitutional, null and void.
(ii) A Declaration that the provision of Section 2(2) of the Autonomous Communities (Recognition) Repeal Law 2004 purporting to abolish the plaintiffs’ Autonomous Communities is unconstitutional, null and void.
(iii) A Declaration that the provisions of the Autonomous Communities (Recognition) Repeal Law 2004 abolishing/proscribing plaintiffs’ Autonomous Communities is ultra vires the provisions of the 1999 Constitution of the Federal Republic of Nigeria guaranteeing to the citizens, Freedom of Association.
(iv) A Declaration that any repeal of the provisions of the Autonomous Communities (Recognition) Law 2002 cannot affect actions, act, duties and obligations done or created under or by virtue of that law before its repeal, as they affect the plaintiffs.
(v) An Order setting aside the Autonomous Communities (Recognition) Repeal Law 2004.
(vi) An Order of perpetual injunction restraining the defendants by themselves, their agents, servants and privies or howsoever from carrying out or putting into effect any or all the provisions of the said Autonomous Communities (Recognition) Repeal Law 2004, as they affect the plaintiffs.”
At the close of pleadings, the case proceeded to hearing. The plaintiffs called a single witness, who testified as PW1 and through whom a host of numerous documentary exhibits were tendered. PW1 was cross examined by the two set of defendants. Upon the close of the plaintiff’s case, the two set of defendants intimated the court that they were not calling witnesses as they have nothing to urge on facts. Hence, learned senior counsel representing the plaintiffs and the learned counsel representing each set of defendants agreed to settle issues of law and address the court on the said issues. Consequently, written addresses were filed, exchanged and adopted.
In a reserved judgment, delivered on the 11th December, 2006 the learned trial judge, gave judgment in favour of the plaintiffs, part of which reads thus:
“From all I have said above I enter judgment for the plaintiffs. Accordingly I make the following
orders.
Autonomous Communities (Recognition) Law 2002.
1. A Declaration that the Autonomous Communities (Recognition) Repeal Law 2004 is ultra vires section 40 of the 1999 Constitution of the Federal Republic of Nigeria and is therefore null and void and no effect whatsoever.
2. A Declaration that the provisions of Autonomous Communities (Recognition) Repeal Law 2004 do not affect actions, act, duties and obligations done or created under or by virtue of Autonomous Communities (recognition) Law 2002 before its repeal, as they affect the plaintiffs.
3. An Order setting aside the Autonomous Communities (Recognition) Repeal Law 2004.
4. An Order of perpetual Injunction restraining the defendants by themselves, their agents, servants, and privies or howsoever from carrying out or putting into effect any or all the provisions of the Autonomous communities (Recognition) Repeal Law 2004 as they affect the plaintiffs.
I reject the first relief namely a declaration that the Autonomous Communities (Recognition) Repeal Law 2004 is not a law of Anambra State House of Assembly.
I make no order for costs.”
Apparently, dissatisfied and peeved by the aforementioned decision, the 2nd and 3rd defendants challenged same vide a notice of appeal dated 28th December, 2006 and filed the same date. The notice of appeal is anchored upon two grounds of appeal. The 2nd and 3rd defendants will hereinafter in this judgment be referred to as the Appellants, while the 1st, 4th and 5th defendants as the 1st to 3rd Respondents or 1st set of Respondents and the Plaintiffs as the 4th to 19th Respondents or the 2nd set of Respondents. In strict adherence to the Rules of Court, briefs of argument were filed and exchanged. The Appellant’s brief of argument is dated 22nd November, 2007 and filed the same date. The Appellant’s reply brief is dated 20th August, 2008 and filed on 21st August, 2008.
The 1st to 3rd Respondent’s briefs is dated 9th January, 2008 and filed on 14th February, 2008 but deemed properly filed on 6th May, 2008 by order of court. The 4th to 19th Respondent’s brief of argument is dated 4th February, 2008 and filed on 13th February, 2008.
Mr. Ben Osaka leading Mr. E. A. Nzegwu for the 4th to 19th Respondents, stated that they have raised and argued a preliminary objection on pages 21 to 24 of the 4th to 19th Respondent’s brief.
Learned counsel adopted the argument in respect of the preliminary objection and urged the court to strike out ground 2 of the grounds of appeal for being incompetent. Miss B. A. Obiora for the Appellants stated that a reply to the preliminary objection was argued on pages 5 and 6 of the Appellant’s reply brief. Learned counsel adopted the argument in response to the preliminary objection and urged the court to dismiss the preliminary objection.
As for the appeal, Miss B. A. Obiora for the Appellants adopted the appellant’s brief and the reply brief in urging the court to allow the appeal and set aside the judgment of the lower court.
Miss Juliet Amasiatu for the 1st to 3rd Respondents, adopted the 1st to 3rd Respondent’s brief and stated that there is merit in the appeal, hence it should be allowed. Mr. Ben Osaka adopted the 4th to 19th Respondent’s brief in urging the court to dismiss the appeal.
Learned counsel submitted that in view of Order 18 Rule 4(2) of the Court of Appeal Rules 2011, the 1st to 3rd Respondent’s brief is incompetent, hence they cannot maintain it and therefore urged that the said brief be struck out.
I wish to start by considering the submission of learned counsel for the 4th to 19th Respondents in respect of the brief of argument filed by the 1st to 3rd Respondents. Learned counsel for the 4th to 19th Respondents submitted that the brief of argument filed by the 1st to 3rd Respondents is incompetent, in view of the provisions of Order 18 Rule 4(2) of the Court of Appeal Rules 2011. Learned counsel therefore urged the court to strike out the brief. Learned counsel for the 1st to 3rd Respondents has not made any response to the attack launched on their brief of argument.
Order 18 Rule 4(2) of the aforementioned Rules of court cited, is essentially to the effect that a Respondent’s brief should answer material points of substance in the Appellants brief and contain points which the Respondent wishes to concede, as well as reasons why the appeal ought to be dismissed.
I have meticulously studied the brief of argument filed by the 1st to 3rd Respondents. The said brief of argument is virtually a rehash of the Appellant’s brief and it concluded by contending that the appeal is meritorious and urging the court to allow same.
There is no doubt whatsoever that the said brief is positively in support of the appeal. This is in clear breach of the traditional role of a Respondent to an appeal as well as the earlier cited Order 18 Rule 4(2) of the Rules of Court.
The traditional role of a Respondent in an appeal is to defend the decision appealed against.
If however he wishes to depart from that role by attacking or challenging the judgment or ruling in any way, he is enjoined to file a cross appeal, since the main purpose of a cross appeal is to correct an error which is standing in the way of a respondent in the main appeal.

Where a respondent has not cross appealed, he cannot attack or challenge the decision appealed against. In the circumstance, the brief of argument of 1st to 3rd Respondents is hereby discountenanced and struck out. See Obasanjo v. Buhari (2003) 17 NWLR (Pt.850) 510 at 554, Adefulu v. Oyesile (1989) 5 NWLR (Pt.122) 377, Eliochin (Nigeria) Limited. v. Mbadiwe (1986) 1 NWLR (Pt.14) 47, Lagos City Council v. Ajayi (1970) 1 All NLR 291, African Continental Seaways Ltd. v. Nigerian Dredging Roads and General works Limited (1977) SC 235, Imoniyame Holdings Limited v. Sonneb Enterprises Limited (2010) All FWLR (Pt.517) 627. The appeal will therefore be determined based on the briefs of argument filed by the Appellants and 4th to 19th Respondents.
The Appellants distilled two issues for determination on page 2 of the Appellant’s brief of argument. The said issues are hereby reproduced thus:
“(1) Whether the trial court was right in refusing to consider the fundamental issue and substantial defence raised by the Appellants in this matter?
(2) Whether the trial court was right in holding that the Autonomous Communities (Recognition) Repeal Law, 2004 is unconstitutional, null and void.”
The 4th to 19th Respondents also identified two issues for determination on page 4 of their brief of argument, namely:
“(1) Whether having regard to the issues for determination as expressly settled and filed by the parties before the High Court, the Constitutionality of the Autonomous Community (Recognition) Law 2002 was a matter duly presented for the determination of the High Court.
(2) Whether the learned trial judge was right when he held that Autonomous Communities (Recognition) Repeal Law 2004 is unconstitutional.”
The 4th to 19th Respondents also raised a preliminary objection against ground two of the Appellant’s grounds of appeal.
The preliminary objection raised by the 4th to 19th Respondents will be considered and resolved, before reverting back to the issues for determination in the appeal. See Jaiyeola v. Abioye (2003) 4 NWLR (Pt. 810) 397 at 414, Osun State Government v. Dalami (Nigeria) Limited (2003) 7 NWLR (Pt. 818) 72. The preliminary objection challenged the competence of ground two, of the grounds of appeal for being vague and general in terms without embodying sufficient particulars of how the findings of the lower court that the Autonomous Communities (Recognition) Repeal Law 2004 was unconstitutional, amounted to an error. Learned counsel conceded that a ground of appeal which discloses sufficient particulars of error is competent and need not to be accompanied by separate particulars. Learned counsel however argued, that in the instant case, it is impossible to identify how the declaration of unconstitutionality of the said law amounted to an error.
Learned counsel contended that a ground of appeal and the particulars which are defective in the manner outlined in his submission, ought to be struck out. Learned counsel submitted that an issue arising from an incompetent ground of appeal, is itself incompetent, hence urged the court to strike out issue 2 distilled from ground 2 of the grounds of appeal. In support, reference was made to the following cases: Adesina v. Adeniran (2006) 18 NWLR (Pt.1011) 359 at 369, A. W. (Nigeria) Limited v. Super Martine (Nigeria) Limited (2005) 6 NWLR (Pt.922) 563, Oyede v. Olusesi (2005) 16 NWLR (Pt.951) 341, Nwabueze v. Nwora (2005) 8 NWLR (Pt.926) 1, Governor Ekiti State v. Osayomi (2005) 2 NWLR (Pt. 909) 67, Amadi v. Orisakwe (1997) 7 NWLR (Pt.511) 161, Chuke v. F.H.A. (1999) 10 NWLR (Pt. 624) 574, C.B.N. v. Okojie (2002) 8 NWLR (Pt.768) 48, Atuyeye v. Ashamu (1987) 1 NWLR (Pt.49) 267.
In a short response, the appellants contended that a ground of appeal must be based on an issue in controversy and must arise from the decision on appeal. Learned counsel stated that it must be a challenge to the ratio in the judgment on appeal. Learned counsel submitted that ground 2 of the notice of appeal and its particulars are a challenge to the ratio decindi of the judgment of the trial court and the 4th to 19th Respondents are not at a loss as to the decision being challenged by the appellants. Learned counsel argued that ground 2 and its particulars are a vehement challenge to the decision of the lower court to the effect that Autonomous Communities (Recognition) Repeal Law 2004 is unconstitutional.
Learned counsel contended that ground two of the notice of the appeal and the issue for determination distilled therefrom are both competent. Learned counsel urged the court to dismiss the preliminary objection. In support, reference was made to; Sanni v. Ademiluyi (2003) NWLR (Pt.807) 381 at 402, Oni v. Fayemi (2008) 8 NWLR (Pt.1089) 400 at 427.
The essence of a ground of appeal is to give notice of the appellant’s complaint against the decision on appeal to the court as well as the respondent. A ground of appeal must not therefore be vague or general and must constitute a challenge to the decision on appeal. I have meticulously examined ground 2 of the notice of appeal with magnifying lenses. Simply put, the complaint in the said ground is that the learned trial judge erred in law when he held that the Autonomous Communities (Recognition) Repeal Law 2004 is unconstitutional, null and void. The said ground of appeal to my mind might have been inelegantly drafted, but it is clear enough to put the 4th to 19th Respondents on notice as to the complaint raised therein. The ground also emanated from the decision of the lower court. The ground of appeal in contention has fully projected the complaint of the appellants, hence achieving the purpose of a ground of appeal. The preliminary objection therefore fails and is hereby dismissed. See B. Stephens Industry Limited v. B.C.C.I. (Nigeria) Limited (1999) 11 NWLR (Pt.625) 29, N.N.B. Plc. v. Imonikhe (2002) 5 NWLR (Pt.760) 294 at 310, Hambe v. Hueze (2001) NSCQR 342, Apapa v. INEC (2012) 8 NWLR (Pt.1303) 409.
The two issues for determination as identified by the Appellants and the two issues distilled by the 4th to 19th Respondents are basically the same. Hence the appeal will be resolved on the issues for determination as submitted by the appellants.
Issue One
The complaint of the appellants under this issue is that they had formulated an issue of law in their written address before the lower court, which was not considered at all, by the court. The said issue in contention is contained in “2nd and 3rd Defendants Address” on page 135 of the record as follows:
“Whether the Autonomous Communities (Recognition) Law, 2002 is ultra vires the provisions of the Constitution of the Federal Republic of Nigeria 1999 and the Local Government Law of Anambra State, 2000.”
Learned counsel stated that the above issue was distilled, pursuant to paragraph 14 of their amended statement of defence, hence none of the parties was taken by surprise.
Learned counsel submitted that it is trite law that a court must give a full and dispassionate consideration to all issues raised by parties and failure to do so amounts to failure to perform its statutory functions. In support, reference was made to the following cases. Brawal Shipping (Nig) Ltd. v. F. I. Onwadike Co. Ltd. (2000) 11 NWLR (Pt.678) 387 at 403, Mogaji Atanda v. Salami Ajani (1989) 3 NWLR (Pt.111) 511 at 539, Polycarp Ojogbue v. Nnubia (1972) All NLR (2nd Edition) 664 at 669, Katto v. CBN (1991) 9 NWLR (Pt.214) 126 at 149, Dada v. Dosunmu (2006) 9 SC 1 at 39. Learned counsel argued that if the court had considered the said issue raised, it would have found that the Autonomous Communities (Recognition) Law 2002 was passed in violation of the 1999 Constitution and the Local Government Law of Anambra State 2000.
Learned counsel in reproducing arguments proffered in the lower court on the said issue submitted that by virtue of the schedule referred to in Section 3(2) of the 1999 Constitution, Anambra State has 21 Local Government Areas. Learned counsel stated that by virtue of Section 4(5) of the Local Government Law of Anambra State 2000, each Local Government shall consist of towns shown in the second column of the 1st schedule to the Law.
Learned counsel argued that the legal consequence of the creation of the autonomous communities is a gross multiplication of the number of towns that make up each Local Government. Learned counsel contended that the creation of Autonomous Communities is in breach of section 3 of the 1999 Constitution and Section 4 of the Local Government Law of Anambra State. Learned counsel posited that based on the foregoing, the Autonomous communities (Recognition) Law, 2002 is therefore unconstitutional. Learned counsel observed that the respondents raised the issue of section 40 of the Constitution in their address, yet the court considered same but refused to consider the appellant’s additional issue.
Learned counsel argued that the failure of the trial court to consider the fundamental issue of law raised by the appellants occasioned a miscarriage of justice and urged that issue one be resolved in their favour.
Learned counsel for the 4th to 19th respondents stated that the issue in contention which was not considered by the lower court, related to the constitutionality or otherwise of Autonomous Communities (Recognition) Law 2002. Learned counsel submitted that the trial court could not have made any determination as to the constitutionality of the said law, when it did not form part of the relief sought by any of the parties. Learned counsel stated that the reliefs claimed by the 4th to 19th respondents have nothing to do with the constitutionality of the Autonomous Communities (Recognition) Law 2002, and the appellants have not set up a counterclaim urging the lower court to set aside the said law on the basis that it violated the constitution. Learned counsel argued that though a court has the power to grant less than what is claimed, it cannot award more than what is claimed or what was not claimed. In support, reference was made to: Ngige v. Obi (2006) 14 NWLR (Pt.999) 1 at 227 – 228, Orie v. Uba (1976) 9-10 SC 123, Ekpeyong v. Nyong (1975) 2 SC 71, Fabunmi v. Agbe (1992) 3 NWLR (Pt.231) 658, Ejowhomu v. Edok-Eter Mandilas Limited. (1986) 9 SC 41 at 102 – 103.
Learned counsel made reference to paragraph 13 and 14 of the amended statement of defence and contended that the appellants did not set up the defence that they repealed the Autonomous Communities (Recognition) Law 2002, on the premise that it violated the constitution and other enactments. Learned counsel argued that the law did not create towns but only recognized the autonomous status of communities existing in the towns, hence it has not breached any law or the constitution. Learned counsel further argued that the constitutionality of the Autonomous Communities (Recognition) Law 2002, was not among the issues which the parties agreed in their settlement of issues. Learned counsel made references to the proceedings of 10th February, 2006 and 24th February, 2006 on settlement of issues and contended that the appellants did not seek leave to argue on issues outside what the parties settled. Learned counsel argued that the appellants were estopped from proceeding outside the ambit of the settled issues. In support, reference was made to: Yoye v. Olubode (1974) 1 All NLR (Pt.2) 118, Ikpuku v. Ikpuku (1991) 5 NWLR (Pt.193) 571.
Learned counsel made reference to the pleadings of 4th to 19th respondents and contended that it is not correct to say that section 40 of the constitution was only raised at the address stage.
Learned counsel submitted that what the trial judge held was that section 40 which dealt with right to peaceful assembly was only specifically mentioned in the address. Learned counsel urged that the issue be resolved against the appellants.
From the proceedings of 10th February, 2006 and 24th February, 2006, all the parties before the lower court agreed to settle issues of law and address the court on same. Mrs. N. J. Obika, Solicitor General leading C. C. Agali and L. E. Nwangwu, represented the appellants in the proceedings of 10th February 2006 and consented to the settlement of issues. See page 172 of the record. L. E. Nwangwu, State Counsel leading C. C. Agali also State counsel represented the appellants in the proceedings of 24th February, 2006. The issue now in contention, relating to the constitutionality or otherwise of the Autonomous Communities (Recognition) Law, 2002 was never part of the issues agreed by parties, but raised for the first time as an additional issue by the appellants in their address.
At this juncture, I deem it necessary for the purposes of clarity to digress a bit and explain what an issue for determination stands for. An issue for determination is the question in dispute between the parties, necessary for the determination of the suit.
See Akintola v. Solano (1986) 2 NWLR 598, Adejumo v. Avantegbe (1989) 3 NWLR (Pt.110) 417, Ejowhomu v. Edok-Eter Mandilas Limited (supra). I have meticulously studied the pleadings of the parties as contained in the record of appeal. The constitutionality or otherwise of the Autonomous Communities (Recognition) Law 2002, was not part of the reliefs sought by any of the parties.
I deem it necessary to reproduce paragraph 14 of the amended statement of defence, which the appellants contended raised the constitutionality of the Autonomous Communities (Recognition) Law, 2002. The said paragraph reads thus:
“14: The Defendants further aver that before the enactment of the Autonomous Communities (Recognition) Law, 2002 that certain conditions statutory and constitutional provisions were not observed.”
See page 33 of the record of appeal. The above paragraph is as clear as crystal and to my mind, it does not in any way challenge the constitutionality of the said law. Rather, my simple understanding of the said paragraph is that certain conditions, were not observed before promulgating the said law. Indeed, issues were not joined by the parties on the Constitutionality of the Autonomous Communities (Recognition) Law 2002. The appellants also did not raise the constitutionality of the said law as a defence. The issue relating to the Autonomous Communities
(Recognition) Law 2002 was also not part of the issues agreed upon and settled by the parties as issues of law to address the court on.
Ordinarily where an issue has been raised by a party and the said issue distilled from the issues joined from the pleadings, the failure of the court to consider such an issue amounts to a breach of fair hearing hence occasioning a miscarriage of justice. See Brawal Shipping (Nigeria) Limited v. F. I. Onwadike Company Limited (2000) 11 NWLR (Pt.678) 387, Brayol v. Ahemba (1999) 10 NWLR (Pt.623) 381 at 392 – 393, Mogaji Atanda v. Salami Ajani (1989) 3 NWLR (Pt.111) 511 at 539, Katto v. C.B.N. (1991) 9 NWLR (Pt.214) 126 at 149. In the instant case, the said additional issue of the appellants which is now in contention does not arise or flow from the pleadings of the parties and it was not part of the issues of law agreed upon by the parties. The failure of the trial court to give any consideration to the said issue therefore has not occasioned any miscarriage of justice. On the observation by the appellants that the lower court allowed the respondents to raise Section 40 of the Constitution for the first time in their address, hence resulting in double standard. The aforementioned contention is with respect not correct as all the learned trial judge held that section 40 dealing with right to peaceful assembly was only specifically mentioned in the address. In the circumstance, I do not see any double standard. Consequent upon the foregoing, issue one fails and is resolved against the appellants.
Issue Two:
On this issue, the appellants advanced a two dimensional argument in support. The first dimension is a rehash of the argument under issue one to the effect that the Autonomous Communities (Recognition) Law 2002 is unconstitutional. Having resolved issue one against the appellants, I do not consider it necessary to consider the first limb of the argument advanced. The second dimension of the argument is on section 40 of the constitution, dealing with the right to peaceful assembly and association. Learned counsel for the appellants stated that it is trite law that the ejusdem generis rule of interpretation confines the scope of general words which follow special words as used in statutory provision or document within the genus of the special words. Learned counsel argued that the general words or terms are to be read as comprehending only things of the same kind as that designated by the preceding particular expression, unless there is something to show that a wider sense was intended. In support, reference was made to Ojukwu v. Obasanjo (2004) 12 NWLR (Pt.886) 169 at 226-227, H-C.
Learned counsel submitted that this rule of interpretation when applied to section 40 of the 1999 Constitution, shows that individuals may form or belong to any political party trade union or any other association for the protection of their interest.
Learned counsel however argued that an autonomous community should not be likened to a political party, trade union or social club as that is not the intendment of section 40 of the 1999 Constitution. Learned counsel submitted that the Autonomous Communities (Recognition) Repeal Law, 2004 of Anambra State is not ultra vires the provisions of the 1999 Constitution and urged the court to so hold and resolve the issue in favour of the appellants.
As was done to the appellants, the 4th to 19th respondent’s response to the first dimension of the appellant’s argument will also not be considered. I will proceed to consider the other argument in response to what has been considered under this issue.
Learned counsel for the 4th to 19th respondents, stated that the question to be asked is whether the State Government can legally abolish a community under the exercise of any legislative function be it remedial or otherwise. Learned counsel urged the court to answer the question in the negative, for the fact that Section 40 of the 1999 Constitution, assured every person the right to assemble freely and associate with other persons for the protection of his interest. Learned counsel submitted that the Autonomous communities (Recognition) Repeal Law 2004 did not just withdraw the recognition accorded these communities, but proceeded beyond the realm of reason to abolish the Communities by virtue of Section 2(2) of the law. Learned counsel therefore urged the court to affirm the decision of the trial court to the effect that, the Autonomous Communities (Recognition) Repeal Law 2004 is ultra vires section 40 of the 1999 Constitution.
The communities of the 4th to 19th respondents were recognised and made autonomous communities by the Autonomous Communities (Recognition) Law, 2002. The Autonomous Communities (Recognition) Repeal Law 2004, repealed the Autonomous Communities (Recognition) Law 2002. The action culminating in this appeal was challenge to the Autonomous Communities (Recognition) Repeal Law 2004, by the 4th to 19th respondents. The lower court held that the Autonomous Communities (Recognition) Repeal Law 2004 abolished the communities of the 4th to 19th Respondent, hence breached their right to freedom of association and therefore ultra vires section 40 of the 1999 Constitution. The lower court declared the said law unconstitutional.
The relevant provisions of the said law in contention, namely the Autonomous Communities (Recognition) Repeal Law 2004 is hereby reproduced as follows:
“Section 2(1): The Autonomous Communities (Recognition) Law 2002 is hereby repealed.
“Section 2(2): As from the commencement date of this law, the Communities created under and by virtue of the law hereby repealed are abolished and shall cease to exist.”
I deem it necessary at this juncture to reproduce hereunder Section 40 of the Constitution of the Federal Republic of Nigeria 1999, as follows:
“Every person shall be entitled to assemble freely and associate with other persons, and in particular he may form or belong to any political party, trade union or any other association for the protection of his interests:
Provided that the provisions of this section shall not derogate from the powers conferred by this
Constitution on the Independent National Electoral Commission with respect to political parties to which that Commission does not accord recognition.”
Hitherto the promulgation of the Autonomous Communities (Recognition) Law 2002, the Communities of the 4th to 19th respondents were in existence as communities simpliciter. With the promulgation and coming into effect of the Autonomous Communities (Recognition) Law 2002, the various communities of the 4th to 19th Respondents, were accorded recognition as autonomous communities. The Autonomous Communities (Recognition) Repeal Law 2004 was subsequently promulgated and by its section 2(1), the earlier law namely the Autonomous Communities (Recognition) Law 2002 was repealed. My simple understanding, is that with the repeal of the Autonomous Communities (Recognition) Law 2002, a status quo ante has been restored to the communities of the 4th to 19th Respondents. In a way, the law that gave their respective communities recognition as autonomous communities is no longer there having been repealed, hence there will be reversion to former status as communities simpliciter.
Section 2(2) of the Autonomous Communities (Recognition) Repeal Law 2004, though might appear inelegantly drafted, but is an adumbration of the reversion in the status of the Communities of the 4th to 19th Respondents to what they were before the promulgation of the Autonomous Communities (Recognition) Law 2002. The Autonomous Communities (Recognition) Repeal Law, 2004, particularly Section 2(2) thereof did not abolish the Communities of the 4th to 19th Respondents. From what I have said so far and the interpretation of the law, what the Autonomous Communities (Recognition) Repeal law 2004 abolished in section 2(2) was the recognition bestowed on the communities of 4th to 19th Respondents as autonomous communities by virtue of the Autonomous Communities (Recognition) Law 2002. The respective communities will continue to exist as communities with the right to assemble and associate freely, save that the autonomous status has been removed. I therefore do not see how the Autonomous Communities (Recognition) Repeal Law 2004, infringes or is ultra vires the provisions of Section 40 of the 1999 Constitution. The Autonomous Communities (Recognition) Repeal Law 2004, does not in any way infringe or run ultra vires section 40 of the 1999 Constitution.
Consequent upon the foregoing, this issue is resolved in favour of the appellants against the respondents. The decision of the lower court that the Autonomous Communities (Recognition) Repeal Law 2004 is ultra vires Section 40 of the 1999 Constitution and the setting aside of the said law are hereby set aside. Having pronounced that the Autonomous Communities (Recognition) Repeal Law 2004 is not ultra vires section 40 of the 1999 Constitution, all other pronouncements and declarations made by the lower court have no legs to stand on and are consequentially hereby set aside.
The appeal is meritorious, it succeeds and is hereby allowed.
The judgment of the lower court delivered on 11th December, 2006 by Hon. Justice Umegbolu Nri-Ezedi in Suit No.A/98/2004 is hereby set aside. An order is hereby made dismissing the suit of 4th to 19th Respondents as plaintiffs in the lower court. There will be no order as to costs.

ABUBAKAR JEGA ABDUL-KADIR, J.C.A.: I read before now the judgment of my learned brother Jauro, JCA. I am in entire agreement with his reasoning and conclusion reached therein. The appeal is meritorious and ought to be allowed and it is hereby allowed. The judgment of the lower court delivered on 11th December, 2006 by Hon. Justice Umegbolu Nri-Ezedi in suit No.A/98/2004 is hereby set-aside. An order is hereby made dismissing the suit of the 4th to 19th Respondents as plaintiffs in the lower court.
I abide by the order as to costs.

SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have the privilege of reading in draft, the lead judgment just delivered by my learned brother, ADAMU JAURO JCA, and I am in total agreement with his reasoning and conclusion therein. Accordingly, I also allow this Appeal NO.CA/E/305/2007 for being meritorious and I abide by the consequential orders including that of costs.

Appearances

B. A. Obiora MissFor Appellant

AND

Juliet Amasiatu Miss for the 1st to 3rd Respondents.
Ben Osaka Esq. with E. A. Nzegwu Esq. for the 4th to 19th Respondents.For Respondent