CHIEF OKON AKPAN EKWEBE & ORS v. CHIEF EFFIONG OTU BASSEY & ORS
(2019)LCN/13859(CA)
In The Court of Appeal of Nigeria
On Friday, the 8th day of March, 2019
CA/C/282/2013
RATIO
WHEN A STATUTE PROVIDES FOR RESORT TO ADMINISTRATIVE REMEDY, THE COURT CANNOT ADJUDICATE EXCEPT THE ADMINISTRATIVE REMEDY HAS BEEN FIRST DEALT WITH
Where as in this case, a statute provides for resort to an administrative remedy, the Court cannot competently adjudicate on any suit arising therefrom unless the administrative remedy has been exhausted. And once the defendant raises an objection as to the non-compliance with a condition precedent to the exercise of the Court?s jurisdiction; it is for the Court seised of the proceedings to examine the objection to ascertain whether it can adjudicate as it cannot sidetrack such an objection. See ADIGUN V OSAKA (2003) 5 NWLR (pt 812)95 at 132 ? 133 and LAWAL V OKE (Supra). PER MUHAMMED LAWAL SHUAIBU, J.C.A.
PRE-ACTION NOTICE: ITS IMPORTANCE AND EFFECT OF NON COMPLIANCE
There are also numerous decided cases on statutory provisions for pre-action action notice such as Section 32 (1) and (2) of the Traditional Rulers Laws, of Akwa Ibom State 2000. This provision is mandatory and the plaintiff/claimant has no choice but to comply with it. It is by no means a condition precedent to the commencement of an action and non-compliance with it renders the action incompetent and also rob the trial court of any jurisdiction to entertain such action. See NNONYE V ANYICHIE (2005) 103 and 104 EZE V OKECHUKWU (2002)1 8 NWLR (pt 799) 348 and ONDO STATE DEV. & PROPERTY CORPORATION V JIMZEST HOTEL DEV. CO. LTD (2011) LPELR ? 4782. PER MUHAMMED LAWAL SHUAIBU, J.C.A.
WHETHER THE COURT CAN RAISE SUO MOTU ISSUES NOT CANVASSED BY PARTIES
It is not the function of any Court to raise suo motu issues not canvassed by the parties to which counsel were not asked to address it on. Also Courts must not delve into a substantive matter while considering an interlocutory application. In the instant case, the argument of counsel to the appellants that the learned trial judge had delved into the merit of the case and or raising the issue of pre-action notice suo ? motu is to say the least, moot points of an academic nature. The issue that gave rise to this appeal was a preliminary objection challenging the competence of the suit and the jurisdiction of the trial Court. PER MUHAMMED LAWAL SHUAIBU, J.C.A.
PRELIMINARY OBJECTION RAISED IN RELATION TO JURISDICTION AND WHEN JURISDICTION CAN BE RAISED
Once preliminary objection raised is on lack of jurisdiction of the trial Court, it must first be determined before hearing the suit. Similarly issue of jurisdiction is not an irregularity and can be raised at any time even for the first time in the Supreme Court. See EGE SHIPPING & TRADING INDUSTRY V TIGRIS INTERNATIONAL CORPORATION (1999)14 NWLR (pt 637) 70 and R.A. OLIYIDE & SONS LTD V O.A.U. ILE-IFE (2018) 8 NWLR (pt 1622) 564 at 576. PER MUHAMMED LAWAL SHUAIBU, J.C.A.
JUSTICES
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria
MUHAMMED LAWAL SHUAIBU Justice of The Court of Appeal of Nigeria
Between
1. CHIEF OKON AKPAN EKWEBE
2. CHIEF TOM AKPAN NTEM
3. CHIEF AKPAN ESENEYEN Appellant(s)
AND
1. CHIEF EFFIONG OTU BASSEY
2. HIS ROYAL MAJESTY NTUENG UDO
EFFIONG AKPAN
(The paramount Ruler of Ini Local Government Area) Clan Head of Itumbonuso clan)
3. INI LOCAL GOVERNMENT TRADITIONAL RULERS COUNCIL
4. HON. COMMISSIONER FOR LOCAL
GOVERNMENT & CHIEFTAINCY AFFAIRS AKWA IBOM STATE
5. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE, AKWA IBOM STATE
6. THE EXECUTIVE GOVERNOR, AKWA IBOM STATE Respondent(s)
MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the Ruling of the Hon. Justice Illa Umoh of the High Court of Akwa Ibom State, delivered on 24th June, 2013. The appellants as plaintiffs in the lower Court claimed against the respondents herein jointly and severally as follows: –
1. A declaration that the 1st Plaintiff is the village Head elect of Ebo Itumbonuso village (but not the 1st Defendant) having been duly selected by the known and true family (Ekpuk) Heads in Ebo Itumbonuso.
2. A declaration that the use of the purported newly created hamlets and unit heads by the 2nd and 3rd Defendants to select the 1st Defendant as the village head of Ebo Itumbonuso is unknown and repugnant to the customs and traditions of Ebo Itumbonuso and Traditional Rulers law in relation to the selection and presentation of a village head and therefore null and void and of no effect whatsoever.
3. A declaration that the purported newly created sixteen (16) Family Head and the recognition that accorded them the status of Ekpuk Heads for the purpose of participation in the selection of the village head of Ebo is ultra vires the power of the 2nd Defendant and therefore null and void and of no effect whatsoever.
4. An Order of Court directing the 2nd and 3rd Defendants to accept the selection of the 1st plaintiff and endorse and recommend him to the 4th and 6th Defendants for recognition and certification as the Village Head of Ebo Itumbonuso village.
5. An Order of perpetual injunction restraining the 2nd ? 6th Defendants from recommending, recognizing or issuing any certificate or installing the 1st Defendant as the Village Head of Ebo Itumbonuso village in Ini Local Government Area.
6. An Order awarding the sum of N20,000,000 (Twenty Million Naira) as general damages against the Defendants jointly and severally.
7. And for such further or other order(s) as this Honourable Court may deem fit to make in the interest of the justice of this case.
On being served with the Writ of Summons and statement of claim, the 4th ? 6th Defendants (now Respondents) filed an application challenging the jurisdiction of the Court to hear the suit on the grounds that the Appellants did not exhaust all the administrative remedies provided for by the Traditional Rulers law.
In a considered ruling delivered on 24/6/2013, Illa Umoh J. upheld the objection and subsequently struck out the suit for being incompetent.
On 24/6/2013 the plaintiffs filed a notice of appeal containing an omnibus ground. On 4/7/2013 they filed five additional grounds of appeal. Briefs were filed and exchanged. The appellants formulated six issues for determination. They are as follows: –
1. Whether (having regard to the statement of claim) the trial judge was right to rely on S.32 (1) and (2) of the Traditional Rulers Law Cap. 134 Laws of Akwa Ibom State 2000 to strike out the suit on the ground that it was filed prematurely and that it lacked jurisdiction (Distilled from additional ground 1.)
2. Whether the Trial Judge was right in law to delve into the substantive matter at the interlocutory stage and thereby struck out the suit without taking evidence to determine the matter on the merit (Distilled from additional ground 2).
3. Whether the Trial Court failed in its primary duties to pronounce upon defective, incompetent and offensive paragraphs of the 4th ? 6th Respondents? Affidavit to the motion on Notice of 25/1/2013 and also without ascribing any probation value to paragraphs 1 ? 3, 6 and 8 of the admitted and unchallenged counter-affidavit of the Appellants (Distilled from additional grounds 4 and 5).
4. Whether the Trial Judge wrongly placed undue reliance on technicalities to the detriment of substantial justice at interlocutory stage when he held that the pre-action notice given by the appellants in their petition dated 29/9/2013 to the 6th Respondent was defective in form and format (Distilled from additional grounds 5).
5. Whether the Trial judge was right when he failed to consider and rule on the pending motion on Notice dated 20/6/2013 for order of committal against the 1st respondent before giving final ruling in this matter. (Distilled from additional ground 6.)
6. Whether the whole decision is against the weight of evidence (Distilled from original ground 1).
The respondents adopted the six issues formulated by the appellants.
It is pertinent to state that the 1st – 2nd and 3rd respondents did not file any brief of argument and therefore were not heard in this appeal.
4
Proffering argument on issue No.1, Learned Counsel for the appellants, Sylvanus Obot Esq. submitted that the question of the validity or otherwise of the 1st respondent was of essence in view of the statutes of limitation in the sense that the appellants would be barred if they had to wait for the whole procedure of selection, recognition and installation of the 1st respondent to be completed before filing an action in Court to challenge such unlawful selection. He referred to JOHN V IGBO ETITI L.G.A. (2013) 7 NWLR (pt 1352), 1 at 13.
Continuing his submission, learned counsel relied on the provisions of Section 32 (1) and (2) of the Traditional Rulers Law Cap. 134 Laws of Akwa Ibom State in urging this Court to consider the legal implication of ?coma? and ?Or? which separate the words selection, installation, recognition or withdrawal of recognition used therein to contend that they are used to separate and make them independent of each other. He referred to NDOMA-EGBA V CHUKWUOGOR (2004) 6 NWLR (pt 869) 382. It was further submitted that, one can bring an action against the Governor or any Government functionary or any person irrespective of whether the grievance relates to the selection, installation, recognition or withdrawal of recognition of paramount Ruler, Clan Head or Village head.
On issue No.2, learned counsel contended that the issue of whether the pre-action notice was frontloaded or not is a substantive issue that ought to be determined during the hearing of the substantive case. He thus submitted that the lower Court was wrong in delving on substantive matter at the preliminary stage. He referred to AGIP (NIG) LTD V AGIP PETROLIUM INTERNATIONAL (2010) ALL FWLR (pt 520) 1198, ADETONO V ZENITH INTERNATIONAL BANK PLC,(2012) ALL FWLR (pt 611) 1443 and ANIBABA V BADEJO (2013 5 NWLR (pt 1346) 42.
On issue No.3, it was the contention of the appellants that where a statute prescribes a particular mode for the performance of a duty, no other method must be adopted. And where as in this case the lower Court failed or neglected to pronounce on the competency of paragraphs 8 and 10 of the affidavit in support of the 4th ? 6th respondents? motion on notice, it has therefore failed in its primary duty.
Still in argument, the appellants submitted that paragraphs 8, 9 and 10 of the said supporting affidavit offends Section 115 (2) and (4) of the Evidence Act for failure to give reasonable particulars as to time and place where the deponent derived the said information and also for being argument and or conclusion. He referred to MOHAMMED V ABDULAZIZ (2009) ALL FWLR (pt 465) 1684 at 1706, KWARRA V INNOCENT (2009) ALL FWLR (pt 460) 716 at 765 and JOSIEN HOLDINGS LTD V LORNAMEAD LTD (1995) 26 LRCN.
In further argument, the appellants submitted that paragraphs 1 ? 3, 6, and 8 of the appellants counter affidavit were neither controverted nor challenged by the 4th ? 6th respondents and where a specific deposition against an opponent is not denied expressly or by necessary implication, same should be deemed admitted by the opponent. He referred to EYIBOH V ABIA (2012)16 NWLR (pt 1325) 51 at 27.
On issue No.4 the appellants argued that it was erroneous for the lower Court not have considered the entire pre-action notice frontloaded by them and singled out paragraph 5 therein. Learned appellants? counsel referred to KABIR V ACTION CONGRESS (2012) ALL FWLR (pt 647) 638 at 674 and FAMFA OIL LTD V AG, FEDERATION (2003) FWLR (pt 184) 195 to the effect that a Court must not slaughter substantial justice on shrine of technicality.
On issue No.5, the appellants have argued that the failure on the part of the trial Court to hear their motion on notice directing the arrest of 1st respondent and proceeding to delivered its final judgment amounted to breach of fair hearing relying on ILOBI V UZOEGWU (2005) ALL FWLR (pt 285) 617 and NDABA (NIG) LTD V ORABKWE (2003) FWLR (pt 171) 1693.
Finally on issue No 6, appellants submitted that the ruling of the low
