BENJAMIN K. EDEH & ORS v. H. R. H. (IGWE) ANTHONY OGBODO OKORIE
(2018)LCN/12363(CA)
In The Court of Appeal of Nigeria
On Friday, the 16th day of February, 2018
CA/E/262/2014
RATIO
ACTION: ESSENCE OF ORIGINATING SUMMONS
“I had the opportunity before now, to have restated the law with respect to the quitessence of actions being commenced vide the mode of originating summons, in Senator Dahiru B. Gassol v. Alhaji Abubakar U. Tutare & 2 Ors (2013) 14 NWLR (pt. 1374) 221; (2012) 7 W. R. N. 118 at 168, thus: ‘Now, the essence of an originating summons being used in commencing an action in Court is that where the controversy between the parties involves a simple construction of statutes or documents, it is expedient to begin or initiate such an action by way of originating summons. That is why it is said that where the controversy between the parties is contentious and hostile, it would be inappropriate to commence such an action by the mode of originating summons. See Roseline Okpanachi Ejura v. Ibrahim Idris & 2 Ors. (2006) All FWLR (pt. 318) 646 at page 663, Agbakoba v. Independent National Electoral Commission (2009) 24 WRN 1; (2008) 12 S. C. (pt. 111) 171; (2008) 12 SCNJ 619; (2008) 18 NWLR (pt. 119) 480 at page 536, Oba Adegboyega Ogunbade & Ors. v. Oba Jimoh Oyewunmi & Ors. (2007) 5 SCNJ 116.'” TOM SHAIBU YAKUBU, J.C.A.
ACTION: WHERE A DEFENDANT FILE A COUNTER AFFIDAVIT TO AN ORIGINATING SUMMONS
“Of course, it is not the law that in an action commenced by originating summons, the fact that a defendant filed a counter-affidavit to it, is tantamount to saying that the matter is contentious and hostile. The decision of the Supreme Court in Barrister Amanda Peter Pam v. Nasiru Mohammed (2008) 16 NWLR (pt. 1112) 1; (2008) 40 WRN 67 (2008) 16 NWLR (pt. 1112) 1 at 88 is apt and instructive, to the effect that: ‘It is not the law that, once there is dispute on facts, the matter should be commenced by writ of summons. No. This is not the law. The law is that the dispute on facts must be substantial and material affecting live issues in the matter. Where disputes are peripheral, not material to the live issues an action can be sustained by originating summons. After all, there can hardly be a case without facts, facts make a case and it is the dispute in fact that gives rise to litigation.'” TOM SHAIBU YAKUBU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria
MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria
Between
1. BENJAMIN K. EDEH
2. JOHN NWIGWE-ANI
3. HARRY CHUKS EGBO-NNAJI
(For themselves and on behalf of members of Amechi Development Union EXCEPTING the Defendant)
4. IKECHUKWU PHILIP ONUCHUKWU
(For himself and on behalf of members of Youth Wing of Amechi-Awkunanaw, Enugu South Local Government Area of Enugu State) Appellant(s)
AND
H. R. H. (IGWE) ANTHONY OGBODO OKORIE
(For himself and on behalf of members of Igwe-in-Council, Amechi Awkunanaw, Enugu South Local Government Area of Enugu State) Respondent(s)
TOM SHAIBU YAKUBU, J.C.A.(Delivering the Leading Judgment):
This appeal is sequel to the decision of the Enugu State High Court of Justice, holden at Enugu, rendered on 6th November, 2013.
By an originating summons dated 24th February, 2013 but filed on 8th April, 2013, the appellants who were the plaintiffs at the Court below, had submitted the following questions to the learned trial judge, for his determination, to wit:
1. Whether by the provisions of Articles 1, 2, 8, 9, 12, 13 and 15 of the Constitution of Amechi Development Union, Amechi Awkunanaw, 2008 (as Amended), and Article 5 of the Amechi Awkunanaw Chieftaincy Constitution of 1977 the members of the Executive Committee of Amechi Development Union, Amechi Awkunanaw are not the persons empowered to the exclusion of other persons, including the Defendant, to manage and/or superintend the affairs of the Amechi Development Union, including, but not limited to, matters of revenue, finance, land administration, security and other matters incidental thereto?
2. Whether having regard to the provisions of Articles of Article 33 (2)(d) of the Constitution of Amechi Development Union, Amechi Awkunanaw 2008 (as Amended), the Defendant has the right or power to interfere with the activities and affairs of Amechi Development Union or any of its branches or wings, including the Youth Wing or with the sources of revenue of Amechi Development Union or any of its branches or wings, including the Youth Wing?
The reliefs prayed for by the appellants, upon the determination of the two questions posed above, are namely,
A. A declaration that by the provisions of Article 5 of the Amechi Awkunanaw Chieftaincy Constitution of 1977 and Articles 8, 9, 13 and 15 of the Constitution of Amechi Development Union, Amechi Awkunanaw, 2008 (as Amended), it is the 1st ? 3rd Plaintiffs and the other members of the Executive Committee of Amechi Development Union, Amechi Awkunanaw, are the persons empowered, to the exclusion of other persons, including the Defendant, to manage and/or superintend the affairs of the Amechi Development Union, including, but not limited to, matters of revenue, finance, land administration, security and other matters incidental thereto.
B. A declaration that having regard to the provisions of Article 33 (2)(d) of the Amechi Development Union, Amechi Awkunanaw Constitution 2008 (as Amended), the Defendant has no right or power to interfere with the activities and affairs of Amechi Development Union or any of its branches or wings, including the Youth Wing.
C. A declaration that having regard to the provisions of Article 33 (2)(e) of the Amechi Development Union, Amechi Awkunanaw Constitution 2008 (as Amended), the Defendant has no right or power to interfere with the sources of revenue of Amechi Development Union or any of its branches or wings, including the Youth Wing.
D. A declaration that all acts of interference, in any manner whatsoever, by Defendant with the duties, functions, powers and responsibilities of the 1st – 3rd Plaintiffs and the other members of the Executive Committee of Amechi Development Union, Amechi Awkunanaw (jointly and severally), as members of the Executive Committee of Amechi Development Union, Amechi Awkunanaw, are ultra vires the Defendant and therefore null, void and of no effect whatsoever.
E. An order setting aside as null and void all act by the Defendant in usurpation of, and/or interference with, in any manner whatsoever, the duties, functions, powers and responsibilities of the 1st – 3rd Plaintiffs and the other members of the Executive Committee of Amechi Development Union, Amechi Awkunanaw (jointly and severally), as members of the Executive Committee of Amechi Development Union, Amechi Awkunanw.
F. An order of injunction restraining the Defendant either by himself, or through his agents, servants or privies howsoever constituted from further interfering in the administration, management of the affairs or activities of Amechi Development Union.
The appellants, filed an affidavit of 34 paragraphs in support of the originating summons. There were several documentary exhibits attached to the said affidavit. Furthermore, the appellants, filed a Further-Affidavit of 13 paragraphs in support of the originating summons. One documentary evidence was attached to the appellants’ Further Affidavit aforesaid. The appellants also filed contemporaneously, a written address in support of the originating summons.
The respondent on his part, filed a 32 paragraphed counter-affidavit, with one documentary exhibit attached thereto, in opposition to the originating summons. Furthermore, the respondent along with the counter-affidavit, filed a written address in opposition to the originating summons. In their response to the respondent?s written address, the appellants filed a reply on points of law.
The learned trial judge, in his consideration of the appellants? originating summons, held that the issues raised in the affidavit, further affidavit and counter-affidavit, at the instances of the appellants and the respondent respectively, ‘are not issues that can be determined on originating summons as they are highly contentious issues.’ And on the basis of that finding, the learned trial judge, dismissed the appellant’s originating summons and ordered them ‘to file their action via Writ of Summons.’
The appellants being piqued by the dismissal of their originating summons, filed a notice and three grounds of appeal, against the decision of the Court below, made on 6th November, 2013.
The appellants, in order to activate the prosecution of the appeal, filed the appellants’ brief of argument, dated 21st April, 2017 on 24th April, 2017. The respondent’s brief of argument was dated and filed on 28th July, 2017. Thereafter, the appellants’ reply brief was filed on 9th January, 2018.
In the appellants’ brief of argument, settled by J. N. Egbo, Esq., three issues were identified for the determination of the appeal, to wit:
a. Whether in view of the questions formulated and submitted by the Appellants to the learned Judge of the Court below, the reliefs sought by the said Appellants, the documents sought to be interpreted and the facts in the accompanying Affidavit and Further-Affidavit, the Appellants’ Suit was properly commenced by Originating Summons?
b. Whether the learned Judge of the Court below was right when she dismissed the case of the Appellants merely on the ground that facts contained in the accompanying Affidavit in support of originating summons are contentious, hostile and cannot be resolved by Affidavit evidence?
c. Whether the learned Judge of the Court below was right when after raising suo motu, the issue of whether or not the Appellants’ suit was properly commenced by way of Originating Summons procedure instead of Writ of Summons, she proceeded to determine the said issue without affording parties the opportunity of addressing her on the said issue?
Chief P. M. B. Onyia, who prepared the respondent’s brief of argument nominated two issues therein, for the determination of the appeal, thus:
a) Whether the learned trial judge was not right when she held that the suit should not have been commenced by originating summons.
b) Whether the trial Court’s use of the word ‘dismiss’ instead of ‘strike out’ in her refusal to entertain the suit has resulted in a miscarriage of justice to the appellants and is enough to vitiate the decision.
Having perused and considered the facts and circumstances of this case, the judgment of the trial judge and the issues identified for the determination of the appeal, I adopt the first issue nominated by the respondent for the determination of the appeal. The second issue for the resolution of the appeal, is whether the learned trial judge ought to have dismissed the appellants’ action with the order that the appellants should file their action via a Writ of Summons. These two issues shall be examined and treated together.
Appellants’ Arguments:
The gravamen of the appellants’ contentions, is that since the questions submitted to the Court below for its resolution and the reliefs prayed for by the appellants, bordered on the interpretation of the extent and the exercise of powers of the appellants vis-a-vis that of the respondent, pursuant to the Amechi Awkunanaw Chieftaincy Constitution of 1977 and the Constitution of Amechi Development Union, the institution of the appellants? action by the mode of originating summons, was proper. Reliance was placed on the authorities of Dapianlong v. Dariye (2007) 8 MJSC 14; W. A. C. Ltd v. Yankara (2008) NWLR (pt. 1077) 323 at 340 – 341; Famfa Oil Ltd v. Attor. Gen. Federation (2003) 18 NWLR (pt. 852); Doherty v. Doherty (1968) NMLR 241; Senator Dahiru B. Gassol v. Alhaji Tutare & 2 Ors (2012) 7 WRN 118 at 168.
Furthermore it is the appellants’ contention that even if their action was wrongly commenced by the mode of originating summons, the said action, ought not to have been dismissed by the learned trial judge. They insisted that the dismissal of their action which was not heard on its merits had serious consequences and had foreclosed their right to relitigate on it, thereby depriving the appellants of the opportunity of obtaining justice or remedy for any breach or harm they have suffered. Reliance was placed on Ajagungbade III v. Adeyelu II (2001) 16 NWLR (pt. 738) 198; John A. S. C. Ltd v. Mfon (2007) 4 WRN 173 at 193; Odeleye v. Adegbanke (2008) 4 WRN 44 at 47 – 49.
Respondent’s Arguments:
In his responses to the appellants’ contentions, the respondent’s counsel submitted to the effect that since the learned trial judge found that the facts deposed to in the affidavit of the parties were contentious, the institution of the appellants’ action vide the mode of originating summons was inappropriate. He referred to Wakwah v. Ossai (2002) 2 NWLR (pt. 752) 548; Keyamo v. House of Assembly, Lagos State (2002) 18 NWLR (pt. 799) 605 at 613. He insisted that with the reliance of the appellants on the 2008 Constitution of Amechi Development Union which the respondent denies of its existence, but relies on the Amagungwu Development Union Constitution and which the appellants deny of its existence, there is a major controversy between the parties, which could have been resolved by affidavit evidence.
He therefore posited that the appellants’ action ought to have been commenced by a Writ of Summons. He insisted that since the dispute/controversy between the parties is serious and hostile, the commencement of the appellants’ action vide the mode of originating summons, was inappropriate. He placed reliance on Inakoju v. Adeleke (2007) 4 NWLR (pt. 1025) 423 (SC); Ogunsola v. A.P.P(2004) All FWLR (pt. 207) 727 at 746 (CA); Famfa Oil Ltd v. Attor. Gen. Federation (2003) 12 SCM 85.
With respect to the appellants’ contention to the effect that the learned trial judge was in error when he dismissed the appellants’ action, the respondent’s learned counsel submitted that the ‘use of the word ‘dismiss’ instead of ‘strike out’ even though an error, is not one of substance. And ‘that the inadvertent use of ‘dismiss’ instead of ‘strike out’ has not worked any injustice on the appellants. It is crystal clear, ‘from reading the decision, that the order was one of striking out not dismissal.’
Resolution of Issues:
I had the opportunity before now, to have restated the law with respect to the quitessence of actions being commenced vide the mode of originating summons, in Senator Dahiru B. Gassol v. Alhaji Abubakar U. Tutare & 2 Ors (2013) 14 NWLR (pt. 1374) 221; (2012) 7 W. R. N. 118 at 168, thus:
“Now, the essence of an originating summons being used in commencing an action in Court is that where the controversy between the parties involves a simple construction of statutes or documents, it is expedient to begin or initiate such an action by way of originating summons. That is why it is said that where the controversy between the parties is contentious and hostile, it would be inappropriate to commence such an action by the mode of originating summons. See Roseline Okpanachi Ejura v. Ibrahim Idris & 2 Ors. (2006) All FWLR (pt. 318) 646 at page 663, Agbakoba v. Independent National Electoral Commission (2009) 24 WRN 1; (2008) 12 S. C. (pt. 111) 171; (2008) 12 SCNJ 619; (2008) 18 NWLR (pt. 119) 480 at page 536, Oba Adegboyega Ogunbade & Ors. v. Oba Jimoh Oyewunmi & Ors. (2007) 5 SCNJ 116.”
Further see: Njiolek Ezeigwe v. Chief Sir Benson Chuks Nwawulu & 2 Ors (2010) 2 SCNJ 112 at 133; Inakoju v. Adeleke (2007) 1 SCNJ 1; Umeanadu v. Attor. Gen Anambra State & Anor (2008) 3 SCNJ 59; Miss Oluchi Anyanwoko v. Chief (Mrs) Christy Okoye & Ors (2010) 1 SCNJ 48.
In order to put the controversy between the parties in proper perspective, it is pertinent and desirable to cull out some depositions in the affidavit evidence place before the learned trial judge. Paragraphs 5 – 31 of the appellants’ affidavit in support of the originating summons are germane. The said paragraphs aver, that:
5. The Defendant is the Traditional Ruler of Amechi Awkunanaw Community. The Defendant was selected in accordance with the clear provisions of the Amechi Awkunanaw Chieftaincy Constitution of 1977 and the Constitution of Amechi Development Union, Amechi Awkunanaw, 2008 (as Amended).
6. Both the Amechi Awkunanaw Chieftaincy Constitution of 1977 and the Constitution of Amechi Development Union, Amechi Awkunanaw, 2008 (as Amended), made copious provisions for the selection and/or election into the office and/or position of the Traditional Ruler of Amechi Awkunanaw and contains elaborate provisions which defined with precision the powers and functions of the Tradition Ruler of the Community. The Amechi Awkunanaw Chieftaincy Constitution of 1977 and the Constitution of Amechi Development Union, Amechi Awkunanaw, 2008 (as Amended) also provided for customary code of conduct for any person selected or elected into the office of Traditional Ruler of the Community. Amechi Awkunanaw Chieftaincy Constitution of 1977 and the Constitution of Amechi Development Union, Amechi Awkunanaw, 2008 (as Amended) are attached and marked Exhibits ‘A’ and ‘B’, respectively.
7. In accordance with the provision of the Constitution of Amechi Development Union, Amechi Awkunanaw, 2008 (as Amended), the highest decision making body in Amechi Awkunanaw Community and also the proper forum for discussing and/or deliberating on the general affairs and welfare of members of the said Community is Amechi Development Union.
8. That in order to guard against a state of anarchy and also to ensure a harmonious and smooth administration and management of the affairs of Amechi Development Union and the Community, the Constitution of Amechi Development Union, Amechi Awkunanaw, 2008 (as Amended) created various organs and offices and delimited the scope and extent of powers exercisable by the officers and organs.
9. The Constitution of Amechi Development Union, Amechi Awkunanaw, 2008 (as Amended) in Articles 12, 13 and 15 made provisions for an Executive Committee and its official, charged among other functions, with the mandate and responsibility to oversee and superintending the general management and administration of the affairs of Amechi Development Union.
10. In line with the clear provisions of the Constitution of the Amechi Development Union, the 1st ? 3rd Plaintiff, and other the members of the Executive Committee of Amechi Development Union in an election that was conducted on 10/5/2010. The Executive Committee was inaugurated on same date for a 4 year term in accordance with Article 23 of the Constitution.
11. Upon his assumption of office as the Traditional Ruler of Amechi Awkunanaw Community, the Defendant subscribed and executed the expressed terms of the Customary Code of Conduct expected of him as the Traditional Ruler of the said Community. Photocopy of the endorsed and executed Customary Code of Conduct is hereunto annexed and marked as Exhibit ‘C’.
12. The Defendant in total violation and disregard of the provision of the Amechi Awkunanaw Chieftaincy Constitution of 1977 and the Constitution of Amechi Development Union, Amechi Awkunanaw, 2008 (as Amended) has been incessantly and without any justification, interfering in the administration, management of the affairs or activities of Amechi Development Union.
13. By a letter dated 26/3/2012, the Defendant without any authority or justification purported to have dissolved the Land Development Levy Committee of Amechi Awkunanaw, a Committee constitutionally appointed by the Executive of Amechi Development Union with the mandate and responsibility to, among other functions, oversee the general management of the communal land of the Community lying and situate variously at Amechi Awkunanaw and Ikirike, Awkunanaw, Enugu. A copy of letter dated 26/3/2012 is hereunto annexed and marked Exhibit ‘D’.
14. In challenge of the excessive and unconstitutional actions of the Defendant, the 1st – 3rd Plaintiffs by a letter dated 6/4/2012 challenged the Defendant’s actions. A copy of the letter dated 6/4/2012 is hereunto annexed and marked Exhibit ‘E’.
15. Notwithstanding the 1st – 3rd Plaintiffs’ letter afore-stated, the Defendant with intention of causing disharmony in the Community has continued with his unlawful activities and has continued to threaten that the entire Amechi Awkunanaw Community will not be at peaceful unless he be allowed to dissolve and appoint another Land Development Levy Committee.
16. The Defendant subsequently purported to reconstitute and/or appoint a new Land Development Levy Committee in total disregard to the clear and unambiguous provisions of both the Amechi Awkunanaw Chieftaincy Constitution of 1977 and the 2008 Amended Constitution of Amechi Development Union.
17. That presently, there are ‘two’ Land Development Levy Committees (the first appointed by the plaintiff and the other purportedly appointed by the defendant) in Amechi Awkunanaw working at cross purposes each claiming to have the mandate to oversee the general management and administration of the communal lands of the Amechi Awkunanaw lying and situate at Ikirike, Awkunanaw, Enugu.
18. The Plaintiffs and the entire members of Amechi Awkunanaw Community are losing huge and considerably amount of the revenues which ought to have been generated for the benefit of the entire Community as against the sole benefit of the Defendant.
19. In utter disregard and/or violation of the Amechi Awkunanaw Chieftaincy Constitution of 1977 and the Constitution of Amechi Development Union, Amechi Awkunanaw, 2008 (as amended) and the Customary Code of Conduct which he subscribed and swore to uphold, the defendant in active conspiracy with certain persons with questionable characters, had been fraudulently selling the communal land people of Amechi Awkunanaw without the consent and authority of the elders and the Amechi Development Union. Copy of the document dated 25/9/1990 and entitled, ‘TO WHOM IT MAY CONCERN’ with which the heads of the 16 constituent kindred of Amechi Awkunanaw appointed members of the Executive Committee Amechi Development Union as their Lawful Attorneys with mandate to oversee the general management of their communal lands is hereunto annexed and marked Exhibit ‘F’.
20. The Defendant has without the consent and authority of the elders of Amechi Awkunanaw and the Planitiffs sold several plots of the Community’s lands Ikirike, Awkunanaw, Enugu. Copies of the documents dated 18/4/2011 and entitled ‘EXTORTION FROM DEVELOPERS’ is hereunto annexed and marked as Exhibit ‘G’.
21. Also copies of Land Receipt Nos. 00107, 00102, 00165 showing the alienation of the Community’s land by the defendant and his agents are hereunto annexed and marked Exhibits ‘G1’, ‘G2’ and ‘G3’, respectively.
22. Copies of letters dated 11/2/2013 and 19/2/2013 and all entitled ‘QUERY ON USE OF FUNDS BELONGING TO AMECHI COMMUNITY’ are hereunto annexed and marked Exhibit ‘G4’ and Exhibit ‘G5’, respectively.
23. The Defendant and his agents in furtherance of their fraudulent actions in respect of the entire Amechi Awkunanaw communal lands printed receipts with which they use to unlawful sell off the land of the Community to unsuspecting and innocent members of the public. Copies of such receipts are attached hereto as a bundle and collectively marked Exhibit ‘H’.
24. The Defendant has been appropriating to himself 20% of any revenue accruing and/or being generated from the management of the entire communal lands in certain designated areas of Amechi Awkunanaw. This particular action of the Defendant was highly criticized and condemned by all and sundry to the extent that in a joint meeting held on 4/6/2011 prominent sons of the community described the Defendant’s actions as ‘Engine of Fraud’. Copy of document entitled ‘RECOMMENDATIONS OF THE COMMITTEE SET UP BY THE IGWE-IN-COUNCIL AND AMECHI COMMUNITY ON 5TH SEPTEMBER, 2009 TO REVIEW THE EXISTING RULES/REGULATIONS GUIDING THE GENERATION/OPERATION/APPLICATION OF DEVELOPMENT LEVY FROM LEASED PLOTS OF LAND IN AMECHI DESIGNATED AREAS’ is hereunto annexed and marked as Exhibit ‘J’.
25. The Defendant without any justification wrote to the United Bank for Africa Plc, Agbani Branch, directing the freezing and placing of embargo on withdrawal from the bank account (i.e Account No. 046403100000862 of the Land Development Levy Committee domiciled at the branch. Copy of letter dated 20/11/2012 RD/AM/47 is hereunto annexed and marked Exhibit ‘K’.
26. The Defendant perennially interfered with the working of the Revenue Management Committee that was mandated by the Executive Committee to handle the affairs of the Youth Wing of the Amechi Development Union. The Defendant on two occasions made attempts to dissolve the Amechi Youth Wing and when this did not work, he purported to set up a group which he called ‘Igwe Youth’, which group he has been using to extort and collect illegal revenue from members of the community and other members of the public.
27. The Defendant also made attempts to dissolve the Revenue Management Committee with the aim to take over total control of the community’s fund and sources of revenue.
28. The Defendant caused an account in the name of a non-existing organisation ‘Ikirike Development Union’ to be opened without the consent, knowledge and approval of the community or the Amechi Development Union. The account was opened at ECO Bank Plc with Account No.0062803819.
29. The Defendant has employed all manner of threats, intimidation and subterfuge to stop and frustrate the Executive Committee of Amechi Development Union from piloting the affairs of Amechi Development Union.
30. The Defendant by his actions considers Amechi Development Union as an appendage of his Cabinet.
31. The 1st – 3rd Plaintiffs’ Executive Committee, several months after their inauguration has not been able to embark on any meaningful community development project as a result of Defendant’s meddlesomeness and unwarranted interference with the function, duties, powers and responsibilities of the 1st – 3rd Plaintiffs’ Executive Committee.
Paragraphs 8 ? 28 of the respondent?s counter affidavit, contains his responses to the deposition in the appellants? affidavit reproduced above. The respondent in his counter-affidavit averred, to wit:
?8. That paragraph 5 of the affidavit is a mixture of half truth and total falsehood in that I am the Traditional Ruler of Amechi Awkunanaw Community and I was duly elected in 1991 in accordance with
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the clear provisions of the Awkunanaw Chieftaincy Constitution, 1977 but not in accordance with the Constitution of ADU, 2008 (as amended). ADU has not amended its constitution, though my Certificate of Recognition came much earlier in 2008.
9. That paragraph 6 of the affidavit is false. I reiterate my deposition in paragraph 8 of this counter affidavit.
10. That paragraph 7 of the affidavit is false in so far it purports that there is a 2008 ADU amended constitution. What the applicants claim to be the constitution of Amechi Development Union (2008 as amended) is fake and spurious. The purported ADU Constitution (2008) as amended is unsigned and worthless; the ADU constitution has not been amended; the authentic Constitution which provides for 2 years tenure of office for its executives is annexed and marked Exhibit ‘AA’.
11. That it is not the ADU is the highest decision making body in the community. Rather it is the General Assembly presided over by the Igwe that is the highest decision making body in the community. That the General Assembly comprises Igwe-in-Council, Council of Elders, ADU, Nze na Ozor title holders, Amechi Cultural Union, the Youth Association, the Chairman and Secretaries of the families, Amechi Progressive and others. That ADU is an integral part of the General Assembly.
12. That paragraphs 8 and 9 of the affidavit are false in so far as it purports that ADU has amended its constitution and such all the provisions stated therein i.e the purported provisions are fallacies.
13. That save for the fact that an election that produced the 1st – 3rd applicants as the members of the executive committee of ADU was conducted on 9/5/2010 paragraph 10 of the affidavit is false. The only authentic constitution regulating the operations activities of ADU and its executive committee is Exhibit ‘AA’ and it provides for 2 years tenure for its executive members.
14. That paragraph 11 of the affidavit is true and I add that I have been keeping to the Customary Code of Conduct as the Igwe of the community.
15. That paragraph 12 of the affidavit is absolutely false in that I have not violated and or disregarded any provisions of existing constitution regulating the activities in our community.
I have not interfered with the activities or affairs of ADU, but I only lay a royal voice to curtail some of the excesses of the 1st applicant who is using his dual capacity as the President General of ADU and chairman of Land Development Levy Committee to cause confusion in the community. The 1st applicant and his cohorts have been feeding fat from the community common wealth and they are trying to be in office in perpetuity/eternity.
16. That paragraph 13 of the affidavit is true. The ex-executive committee members of ADU was dissolved by the resolution of the General Assembly on 26/3/2012 for over staying in office. It was the same problem of overstaying that made the General Assembly to dissolve their predecessors.
17. That paragraphs 14 and 15 of the affidavit are false. In further reaction to paragraph 15 of the affidavit I do not cause any disharmony in the community rather it is the 1st applicant and his supporters who want to fraudulently be using the community fund as if personally owned. Their tenure has since May 2012 expired and the committee has been dissolved. The document showing the resolution by which they were appointed provided for two years in office and same is annexed and marked by the applicants as Exhibit ‘J’.
18. That paragraphs 16 – 18 of the affidavit are false.
19. That paragraph 19 of the affidavit is absolutely false in that I have not in any manner disregarded and or violated of the Amechi Awkunanaw Chieftaincy Constitution of 1997 and I have been keeping the Customary Code of Conduct and Oath of office since I became Igwe of the community.
20. It is the 1st applicant who was before the dissolution of Amechi Land Development Levy Committee acting as both the President General of ADU and Chairman of the above committee fraudulently selling the communal lands of people of Amechi Awkunanaw without the consent of myself as the Chief Security Officer of the community.
21. That paragraph 20 of the affidavit is false. I re-iterate my depositions in paragraph 20 of this counter affidavit.
22. That paragraph 21, 22 and 23 of the affidavit are false. It is rather the 1st applicant and his cohorts who were using their positions in the community and forging receipts with which they unlawfully used in collecting from the community land developers.
23. That paragraph 24 of the affidavit is false.
24. That paragraph 25 of the affidavit is false, in that I only wrote to the Manager UBA and asked for stoppage of withdrawal when we noticed some fraudulent activities in the operation of Account No. Referred therein.
25. That paragraph 26 of the affidavit is absolutely false.
26. That paragraph 26 of the affidavit is true only to the extent that the Revenue Management Committee was dissolved for over staying in office and some other fraudulent activities of the committee.
27. Paragraphs 28 and 29 of the affidavit are false.
28. That paragraphs 30 ? 34 of the affidavit are false.
Thereafter, the appellants filed a Further-Affidavit of 13 paragraphs and at paragraphs 3 – 11 thereof, it was deposed that:
3. In addition to reliance already placed on EXHIBIT ‘B’ as annexed and referred to in paragraph 6 of my earlier Affidavit, I and other Plaintiffs will equally place heavy reliance on the Certified True Copy of Constitution of Amechi Development Union, Amechi Awkunanaw, 2008 (as amended). A copy of the Certified True Copy of Constitution of Amechi Development Union, Amechi Awkunanaw, 2008 (as amended) is hereunto annexed and marked EXHIBIT ‘B1’.
4. EXHIBIT ‘AA’ as annexed and referred to in paragraph 10 of the Defendant’s Counter -Affidavit had long been repealed and abrogated by EXHIBIT ‘B’ AND ‘B1’, and as such no longer in use, operative or in force.
5. EXHIBIT ‘AA’ as its name implies was the previous constitution that governed only Amagugwu part of the old and Greater Amechi Awkunanaw.
6. Greater Amechi Awkunanaw before now use to comprise both Amagugwu Amechi-uno and Amechi-uwani part and for purposes and sake of ease of administration, the three component parts had different town unions, hence the name ‘Amagugwu Development Union’.
7. Upon the creation and/or carving out of Amechi-Uno and Amechi-Uwani Communities from the old and Greater Amechi Awkunanaw and also the attendant grant of autonomous to the said communities in or about the year, 2003, Amagugwu became a separate and independent community of its own and had since then been known and called, ‘Amechi Awkunanaw’, hence the christening of their town Union, ‘Amechi Development Union’.
8. It was the creation of Amechi-Uno and Amechi-Uwani autonomous communities out of the old Amechi Awkunanaw that engendered the amendment of the Plaintiffs’ constitution in order to adapt and also correspond to their present status.
9. Consequent upon the present status of the Plaintiffs’ and Defendant’s community, EXHIBIT ‘AA’ was accordingly amended in order to reflect and incorporate the present status of the said community.
10. Thus, EXHIBIT ‘B’ and ‘B1’ was the product of the amendment effected on EXHIBIT ‘AA’. A copy of the EXHIBITS ‘B’ and ‘B1′ had long and accordingly and/or in line with the relevant laws been deposited with the Ministry of Chieftaincy, Enugu State.
11. It was on the basis of the present status of both the Plaintiffs’ and Defendant’s community that made the Defendant upon being selected as Traditional Ruler to become the Traditional Ruler of Amechi Awkunanaw and not that of ‘Amagugwu.’
Undoubtedly, the areas of dispute between the parties, discernible from the affidavit evidence placed before the learned trial judge are clearly, with respect to which of the documents relied upon by the parties, that he was to interpret and determine the questions submitted by the appellants for determination and the reliefs which they prayed for. The appellants relied on the Amechi Awkunanaw Chieftaincy Constitution of 1977 (Exhibit ‘A’), and the Constitution of Amechi Development Union, Amechi Awkunanaw, 2008 (as amended) – Exhibit ‘B’. Furthermore, the appellants relied heavily on the Certified True Copy of the Constitution of Amechi Development Union, Amechi Awkunanaw, 2008 (as amended) – Exhibit ‘B1’.
On the other hand, the respondent says his appointment was predicated on the Amechi Awkunanaw Chieftaincy Constitution of 1977 – that is, Exhibit ‘A’ and not on the Constitution of Amechi Development Union, Amechi Awkunanaw, 2008 as amended, that is Exhibit – ‘B’. The respondent insisted that there was no amendment of the Constitution of Amechi Development Union, Amechi Awkunanaw, 2008 as represented by Exhibit B. Instead, he relied on the Amagugwu Development Union, Amechi Awkunanaw Constitution – Exhibit ‘AA’. However, by the further affidavit evidence of the appellants, Exhibit ‘AA’ was repealed by Exhibit ‘B1′.
Apart from the contentions of the parties with respect to the valid and authentic Constitution of their community, there are sundry allegations levelled against the respondent as represented by Exhibits C, D, E, F, G, G1, G2, G3, G4, G5, H, J and K, all attached to the appellants’ affidavit in support of the originating summons which were denied by the respondent in his counter-affidavit. In the circumstances of this matter, can it be said that there are no serious disputes between the parties. I am of the considered and firm opinion that the facts deposed to by the parties in their respective affidavit evidence placed before the learned trial judge, evince serious disputes which would translate to a hostile proceedings at the trial. The disputes are certainly not only material but are substantial to the consideration and determination of the questions submitted by the appellants and the reliefs sought by them, for the decision of the Court below. Therefore, the mode of originating summons is not appropriate where there would be serious air of friction and abrasiveness between the parties. Doherty v. Doherty (1967) All NLR 245.
Of course, it is not the law that in an action commenced by originating summons, the fact that a defendant filed a counter-affidavit to it, is tantamount to saying that the matter is contentious and hostile. The decision of the Supreme Court in Barrister Amanda Peter Pam v. Nasiru Mohammed (2008) 16 NWLR (pt. 1112) 1; (2008) 40 WRN 67 (2008) 16 NWLR (pt. 1112) 1 at 88 is apt and instructive, to the effect that:
“It is not the law that, once there is dispute on facts, the matter should be commenced by writ of summons. No. This is not the law. The law is that the dispute on facts must be substantial and material affecting live issues in the matter. Where disputes are peripheral, not material to the live issues an action can be sustained by originating summons. After all, there can hardly be a case without facts, facts make a case and it is the dispute in fact that gives rise to litigation.”
In the instant matter, having found that there are serious, material and substantial disputes disclosed in the parties’ affidavit evidence, I am satisfied with the finding of the learned trial judge to the effect that the commencement of the appellants’ action vide the mode of originating summons was not appropriate. Issue 1 is resolved against the appellants.
With respect to issue 2, it is very clear to me that the respondent’s counsel, could not effectively respond to and demolish the trenchant submission of appellants’ counsel, to the effect that the learned trial judge was in error when he, having found that the action begun by the mode of originating summons was inappropriate, went ahead to dismiss the appellants’ action. From the tenor of the respondent’s submission, it is indisputable that he conceded to the fact that the learned trial judge ought not to have dismissed the appellants’ action.
I do not agree with respondent’s counsel when he submitted to the effect that the learned trial judge inadvertently used the word ‘dismiss’ instead of ‘strike out’. Be that as it may, the law is well settled to the effect that when an action was commenced by an originating summons as in the instant case, instead of writ of summons, the appropriate order to be made by the Court is not even to strike out the action, but the Court is to direct the parties to proceed with the filing of pleadings in order to fully ventilate their respective positions and lead parole evidence thereon at a full trial of the action. In National Bank of Nigeria Ltd & Anor v. Alakija & Anor (1978) 9 & 10 S. C. 59; (1978) LPELR 1949 (SC) at pages 16 – 28, the Supreme Court was emphatic in her decision to the effect that in a situation where an action was commenced by originating summons in a hostile and contentious proceedings as gleaned from the affidavit evidence placed before the trial Court, the proper order to make is to order for pleadings to be filed and exchanged by the parties for the action to be tried on pleadings, in order to ensure that justice is done in the matter. Further see Doherty v. Doherty (1968) NMLR 241; Emezi v. Osuagwu & Ors (2005) All FWLR (pt. 259) 1891 at 1906.
In sum, I am satisfied that the learned trial judge was clearly in error when he dismissed the appellants’ action, instead of ordering the parties to file and exchange pleadings, as if the originating summons was converted to writ of summons, in order to determine the action in a full trial on its merits. Therefore, issue 2 is resolved in favour of the appellants.
In effect, the appeal succeeds in part only. It is accordingly allowed. Hence the decision of E. N. Oluedo, J., dismissing the appellants’ action, in re- suit No. E/149/2013 rendered at the Enugu State High Court of Justice, holden at Enugu on 6th November, 2013, is hereby set aside.
It is ordered that the suit be remitted to the Enugu State Chief Judge for it to be reassigned to another judge of the Enugu State High Court of Justice for a re-trial. The trial judge, at the re-trial, shall proceed with treating the action as if it had been commenced by writ of summons, order parties to file and exchange pleadings and thereafter determine the action on the pleadings and parole evidence as may be proffered by the parties.
Each side shall bear own costs.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the erudite judgment just delivered by my learned brother TOM SHAIBU YAKUBU JCA. I agree that the appeal has merit and should be allowed. I will add a few words.
The originating summons was issued by the Appellant on 8/4/13. Parties filed copious contradictory affidavits at the trial Court and the said Court rightly decided that the suit would have been better initiated by writ of summons. The proper order to make when there appears to be hostilities between the parties about the facts to be decided by the judex is that pleadings would be ordered to enable to Court make findings on the facts and to determine the competing rights of the parties under the law. See National Bank v. Alakija (1978) 9 – 10 SC 59 and decisions of similar ilk. That has been the settled position of the law for decades. See also Doherty v. Doherty (1968) NMLR 241.
There is no doubt that in this case, the dispute on facts was material and substantial enough to affect one way or the other the live issues in the case before the Court. The learned trial judge was quite right on that head. What dismays me is the order dismissing the suit for that reason. Surely the orders to be made by a judex in the circumstances the trial Court found itself is quite trite and elementary. This is one of the instances when the latin maxim “ignorantia judicis est calamitas innocentis” an ignorant judge is a calamity for the innocent is quite apt.
I sincerely believe that it could only have been a mistake of the head and not of the heart.
As I said earlier, the summons was issued on 8/4/13, this appeal is being determined nearly five years later. A problematic, expensive and I dare say calamitous circumstances for the Appellants. Enough said. The order of Oluedo J. dismissing Suit No.E/149/2013 is hereby set aside. I abide by the consequential orders in the lead judgment including the order as to costs.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I agree.
Appearances:
J. N. Egbo, Esq.For Appellant(s)
Chief P. M. B. Onyia, with him, Obiora Eneh, Esq. and Chidike Nwizu, Esq.
For Respondent(s)
