EKE v. IHUNWO (2022)

EKE v. IHUNWO

(2022)LCN/16457(CA)

In The Court Of Appeal

(PORT HARCOURT JUDICIAL DIVISION)

On Wednesday, March 30, 2022

CA/PH/413/2020

Before Our Lordships:

Joseph Shagbaor Ikyegh Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Gabriel Omoniyi Kolawole Justice of the Court of Appeal

Between

HRM EZE LESLIE NYEBUCHI EKE, JP APPELANT(S)

And

HRH EZE SIR (DR.) EMEKA GEORGE IHUNWO RESPONDENT(S)

RATIO:

MEANING OF ANCILLARY CLAIMS

This Court held most recently in the case of ZAFI v. MANZO (2021) LPELR-55148(CA) where this question was put before it: “Black’s Law Dictionary defines “Ancillary claim” thus: “The Term “ancillary” denotes any claim that reasonably may be said to be collateral to, dependent upon, or otherwise auxiliary to a claim asserted within federal jurisdiction in action. See Hartley Pen Co v. Lindy Pen Co., D.C. Cal., 16 F.R.D. 141, 154…I concede that when there is a main relief and an ancillary relief, the ancillary relief should not deprive the Court of jurisdiction if it has jurisdiction on the main relief. The Court can strike out the ancillary relief…”
See also EGBUE v. ARAKA (supra). GABRIEL OMONIYI KOLAWOLE, J.C.A.

POSITION OF LAW ON INTERPRETATION OF STATUTE

Where there is no ambiguity or complexity, words of legislative drafts in statutes should be given their literal and ordinary interpretation.
See the cases of NAAC v. ECONET WIRELESS LTD (2006) 37 WRN 120 AT 156 LINES 30-35; and BASINCO MOTORS LTD v. WOERMANN LINE (2010) 10 W.R.N 1, 9 r. 4 or at pages 29-30 lines 20-25. GABRIEL OMONIYI KOLAWOLE, J.C.A.

POSITION OF LAW ON INTERPRETATION OF STATUTE

For it was held by the Supreme Court in the case of Nigerian Navy V Labinjo (2012) 17 NWLR (Pt.1328) 56 at 77 that it is a general principle of interpretation of statutes that the use of the word “may” generally connotes permissive action, though, in exceptional circumstances, it may mean mandatory or compulsory action and that in the context the word “may” was used in Order 8 Rule 18 of the Court of Appeal Rules, 2007, it can only mean permissive action. GABRIEL OMONIYI KOLAWOLE, J.C.A.

POSITION OF LAW ON LEGAL CAPACITY TO INSTITUTE PROCEEDINGS IN A COURT

Locus standi denotes the legal capacity to institute proceedings in a Court of law and is a condition precedent to the determination of the case on the merits vide Owodunni V Regt. Trustees, Celestial Church of Christ and Ors (2000) FWLR (Pt.9) 1455. And like any condition precedent, it is an issue of jurisdiction and being interwoven with reasonable cause of action, the latter is equally an issue of jurisdiction vide Madukolu V Nkemdilim (1962) 1 ALL NLR (Pt.4) 587. Since ‘reasonable cause of action’ is an issue of jurisdiction, it can be raised at any stage of the litigation by any of the parties without the leave of the Court or by the Court itself. GABRIEL OMONIYI KOLAWOLE, J.C.A.

GABRIEL OMONIYI KOLAWOLE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Interlocutory decision of his Lordship, Honourable Justice J. H. Aprioku of the High Court of Rivers State, delivered on 29th July, 2020.

The Respondent, who was the Claimant before the lower Court brought this suit against the Appellant as Defendant and claimed the following reliefs:
1. A Declaration that the Defendant being a Rivers State Government recognized traditional ruler can only bear the title of “Eze Oha Evo iii” by which his stool is recognized and not any other title.
2. An Order that the Claimant having been duly selected, coronated and/or installed as the “Eze Woji” or “Nyeweli Woji” (Paramount Ruler of Woji) by the Council of Chiefs, Elders and Owhor holders of Woji Community in accordance with Ikwerre Native laws and customs as applicable to Woji Community is the proper person to bear the title of “Eze Woji” or “Nyeweli Woji” and not the Defendant.
3. An order that the Defendant should pay to the Rivers State Government the sum of One Hundred Thousand Naira Only (N100,000.00) or be sent to prison for a term of one year as required by the Chieftaincy laws of Rivers State, the Defendant having violated same.
4. An order of perpetual Injunction restraining the Defendant either by himself, his agents, servants, privies or any other person acting on his behalf from interfering with Claimant’s position or title as Nyeweli Woji or any howsoever appear pirating to himself or assuming the title of Nyeweli Woji, Eze Woji or Nyerisi Oha Woji.

The Appellant/Defendant on the 8th May, 2019, filed a Notice of Preliminary objection, praying the Court to dismiss the suit, as the condition precedent to the exercise of the Court’s jurisdiction has not been fulfilled or complied with.

The Court below refused the preliminary objection filed by the Defendant/Appellant seeking an order of the Court dismissing the Respondent/Claimant’s case on grounds that the condition precedent to the exercise of the Court’s jurisdiction has not been fulfilled.

The Ruling of the lower Court can be found at pages 129 to 132 of the record of appeal.

Dissatisfied with the decision of the lower Court, the Appellant has appealed to this Court to express his grievances. The jurisdiction of this Court was activated by the Amended Notice of Appeal dated and filed on 2nd November, 2020, raising four (4) grounds of appeal.

In adherence with the Rules of this Court, parties filed and exchanged their respective briefs of argument. Appellant’s brief of argument filed on 2nd November, 2020 was deemed properly filed on 4th December, 2020 and was settled by Isah Seidu Esq., whereas the Respondent’s brief of argument filed on 7th February, 2022, was settled by G. O. Agbaraosimini, Esq.

In the Appellant’s brief of argument, two issues were formulated for the determination of this appeal thus:
1. Whether the Respondent’s cause of action premised on violation of Section 14 of the Rivers State Traditional Rulers Law No. 4, 2015 is reasonable? (Ground 4 of the Amended Notice of Appeal).
2. Whether the suit of the Respondent before the Court below is not premature and non-justiciable not having exhausted local and/or domestic remedies prescribed by Section 16 of the Rivers State Traditional Rulers Law No.4, 2015 (Grounds 1, 2 and 3 of the Amended Notice of Appeal).

The Respondent’s Counsel formulated two issues for the determination of this appeal, to wit;
1. Whether Ground 4 of the Amended Notice of Appeal upon which Issue No. 1 of the Appellant is predicated is competent same having not arisen from the decision or ruling of the lower Court appealed against.
2. Whether having regard to the provisions of Section 16 of the Rivers State Traditional Rulers Law No.4, 2015 the Respondent’s suit at the Court below, subject matter of this appeal, can be said to be premature and non-justiciable.

SUBMISSIONS OF COUNSEL
On the first issue, it was the contention of the learned Appellant’s Counsel that the civil law lacks legal capacity or competence to enforce the alleged breach of Section 14 of the Rivers State Traditional Rulers Law No.4, 2015, hence no cause of action and/or reasonable cause of action vest in the Respondent.

The Appellant’s counsel while citing the case of OGAR V. IGBE (2019) 9 NWLR (Pt. 1678) pg. 534 AT 553, paras. F-G, submitted that statute does not recognize such cause of action and forbids any such cause of action as in the instant appeal.

It was contended that the Court below sitting as a civil Court lacks the jurisdiction to impose fine and/or convict the Appellant for any breach of Section 14 of the Rivers State Traditional Rulers Law No.4, 2015, assuming without conceding if any.

He further submitted that where an action discloses no reasonable cause of action, it robs the Court of the necessary vires to adjudicate over such claim.

Given the circumstance of this case, he argued that the Court will ordinarily strike out the claim as well as dismiss the action of the Respondent in limine. He put forward in aid of this proposition, decisions in NIGERIAN BOTTLING COMPANY LTD v. EDWIN EZEIFO (2001) 12 NWLR PT. 728 AT PAGES 28-29, PARAS. G-A; JULIUS BERGER NIG. PLC v. T.R.C BANK LTD (2010) 9 NWLR PT 1198 PG 80.

On issue 2, Counsel to the Appellant, urged upon this Court to confine itself to the Respondent’s Statement of Claim and/or the Originating process. He reasoned that the law is already settled on the point that it is always the claim of the Plaintiff that determines a Court’s jurisdiction and cited the case of AKINFOLARIN v. AKINNOLA (1994) 3 NWLR (PT.335) 659 AT 674 in furtherance of his submission.

The Appellant’s counsel also relied on the age long supreme Court’s often cited decision in MADUKOLU v. NKEMDILIM (1962) ANLR 581, in support of his vehement contention that the mandatory condition precedent stipulated in Section 3 and 16 of the Rivers State Traditional Rulers Law No. 4, of 2015 have not been complied with by the Respondent before resorting to Court, hence, the lower Court lacked the jurisdiction to exercise Original Jurisdiction in this Chieftaincy Dispute, same having been kept in abeyance by Statute.

It was contended that the Court below refused to adhere to the principles of stare decisis when it refused to follow the decision of the Supreme Court in the case of AYIDA & ORS v. TOWN PLANNING AUTHORITY & ANOR (2013) 5 SCM PG. 46 AT 79, PARAS. F-H.

He again submitted that the lower Court made a perverse finding when it stated that: “On the claim, the cause of action is the Eze Woji Stool, which stool is not in the Gazette or has not been recognized. Therefore, the administrative remedy in the Traditional Rulers Law, is not within the contemplation, of one of those cases that can be referred to Arbitration, at the office of the Chieftaincy Affairs.”

He argued that the reliefs sought by the Respondents are anchored on the extant provision of Section 14 of the same Rivers State Traditional Rulers Law No. 4, of 2015, stating that if the above finding of the lower Court is correct, then the Respondent’s cause of action is anchored on the provisions of the same law held by the Court below not applicable to his cause, hence the Court below would have dismissed and/or strike out in limine the Respondent’s case at the lower Court on the ground of non-disclosure of reasonable cause of action against the Appellant since the said cause is not recognized by the law upon which the Respondent’s cause was premised. On this point, the Appellant’s Counsel commended this Court to the case of OGAR v. IGBE (2019) 9 NWLR (PT. 1678) PG. 534 AT 553, PARAS. F-G.

In sum, he urged this Honourable Court to set aside the decision of the Court below delivered in fragrant disobedience to the doctrine of judicial precedent and consequently allow this appeal in its entirety.

Whilst arguing in response, the learned counsel for the Respondent submitted that Ground 4 of the Amended Notice of Appeal, upon which the Appellant’s Issue No. 1 is predicated is incompetent, thus rendering the said Issue No. 1 and all the arguments canvassed therein also incompetent in law and should therefore be completely discountenanced and disregarded by this Honourable Court.

The learned Counsel for the Respondent submitted that the ground of appeal which is based on the provisions of Section 14 (1) and (2) of the Rivers State Traditional Rulers’ Law No. 4 of 2015 part of which deals with the imposition of fine or imprisonment which the Appellant contends vide the said ground that the Court below cannot determine, whilst sitting as a civil Court neither arises from the Preliminary Objection filed by the Appellant at the Court below, nor his arguments in support of the said preliminary objection, nor from the ruling of the trial Court being appealed against.

The learned Counsel for the Respondent submitted that “a ground of appeal that is at large, having not arisen from the judgment appealed against is incompetent as it was held in the case of FOLAMI V. OKEGE (2008) 21 W.R.N 172 at 174 r.1 or at 186 lines 3-40; and LAMBERT V. NIGERIAN NAVY (2007) 14 W.R.N 156 at 161 r.1 & 2 or at 176 lines 5-10.

The learned Counsel for the Respondent submitted that the said Ground 4 of the Amended Notice of Appeal having not arisen from the said decision or ruling of the Court below, is incompetent and ought to be struck out.

The learned Counsel for the Respondent further submitted that the Appellant’s Issue No. 1 is clearly a fresh issue that is being raised by the Appellant on appeal before this Court for the first time.

The learned counsel for the Respondent submitted that the Appellant ought to have sought and obtained the leave of this Court to raise for the first time on appeal the aforesaid issue as this is a condition precedent to be fulfilled by the Appellant before he can be allowed to raise and argue before this Court the said issue which borders on the provisions of Section 14 of the Traditional Rulers’ Law No. 4 of Rivers State, 2015 which was never raised at the Court below.

The learned Counsel for the Respondent submitted that the judgment of a Court must confine its inquiry entirely to the determination of issues properly raised and canvassed by the parties before it. In reliance on this proposition, he cited OYINLOLA v. JELABI (2010) 32 W.R.N 172 at 180 lines 5-10; and IWUOHA v. NIPOST LTD (2003) 8 NWLR (PT 822) 308 at R. 7 OR AT 342 PARAS G-H.

He further submitted that the learned trial Judge confined his decision or ruling and rightly so, to only those issues raised and canvassed before him.

Consequently, he submitted that an appeal being a re-hearing, as it were, if the case which was before the trial Court, the Appellate Court cannot in law allow an issue which was never raised at the trial Court to be raised and canvassed on appeal without the leave of Court having first been sought and obtained, to do otherwise would be most unfair and would constitute an injustice not only to the trial Court, but also to the Respondent. He cited the decision in AGBI v. OGBEH (2004) 18 W.R.N 36 AT 76 LINE 10 OR AT 44 R. 8.

He further urged upon this Court that since the Appellant has raised and canvassed the said new issue before this Court for this first time without first seeking and obtaining leave of Court the said issue is incompetent and should be disregarded and/or discountenanced by this Court.

Alternatively, the Respondent’s counsel submitted, that the arguments of learned Appellant’s Counsel in paragraphs 3.1–3.4 are misconceived, as the Appellant’s Counsel failed to focus on the totality of the claims of the Claimant as contained in his writ of summons and statement of claim.

He argued, that it is reliefs 1 and 2 that are the main reliefs in this suit, while relief no. 3, which is what the Appellant’s Counsel has decided to focus on, is a mere ancillary relief, alongside relief 4.

He submitted that the Court below can assume in law jurisdiction over the main reliefs before it which borders on the issue of chieftaincy dispute between the parties as per reliefs one and two which the Court below clearly has jurisdiction to determine while, either on application of Counsel or suo motu strike out relief 3 which is merely an ancillary relief or claim having a criminal element, as to hold otherwise would amount to throwing away the baby with bath water. In support he cited EGBUE v. ARAKA (1988) 3 NWLR (PT.84) 598 SC.

He urged that this Court, discountenance Appellant’s Counsel’s submissions in paragraphs 3.1 to 3.7 of the Appellant’s Brief of argument and the cases cited therein as the said cases are clearly inapplicable in the circumstances of this case.

He further submitted, that contrary to the Appellant Counsel’s submissions, the Respondent’s statement of claim at the Court below clearly discloses a cause of action, which is based on whether the Appellant can as a Traditional Ruler under the law assume or bear a traditional title or stool other than the one by which he is recognized by the Governor.

Given the circumstance and judging from the foregoing, he urged upon this Court, to resolve issue 1 in this appeal against the Appellant and in favour of the Respondent.

In response to the Appellant Counsel’s submission on issue 2, the learned Respondent’s Counsel submitted that while acknowledging and affirming the legal principle as enunciated in the case of AKINFOLARIN v. AKINNOLA (1994) 3 NWLR (PT.335) 659 at 674 cited by the Appellant’s Counsel in paragraph 4.1 of his brief as the correct statement and position of the law, Appellant’s Counsel has however failed to show the relevance and applicability of the said principle of law and judicial authority in the instant case.

It is also submitted that by the Respondent’s Counsel, that in his ruling, subject matter of the present appeal, the Court below in determining the application filed by the Appellant gave proper consideration and relied on relevant materials in arriving at its decision.

He contended, that the Appellant’s submission that the Respondent’s suit at the Court below is premature and hasty based on the provisions of Section 16 of the Rivers State Traditional Rulers Law No. 4 2015, is grossly misconceived, which misconception arose from Appellant Counsel’s failure and/or neglect to properly construe the provisions of Section 16 of the Rivers State Traditional Rulers Law.

Section 16 of the Rivers State Traditional Rulers Law provides that: “Where there is a dispute over the selection of a person as a Traditional Ruler, the commissioner may reconcile the parties or direct an administrative enquiry to be held in respect of the dispute.”

He submitted further, that the critical phrase in interpreting the above section of the law is the phrase “the commissioner may…”

Relying heavily on the principles enunciated by the Supreme Court in NAAC v. ECONET WIRELESS LTD (2006) 37 WRN 120 AT 156 LINES 30-35; and BASINCO MOTORS LTD v. WOERMANN LINE (2010) 10 W.R.N 1, 9 r. 4 or at pages 29-30 lines 20-25, the Respondent’s counsel urged us to hold that the words used in the provisions of Section 16 of the Rivers State Traditional Rulers Law No. 4 2015 are clear, simple and unambiguous and ought therefore to be given their simple, natural and ordinary meaning, which is to the effect that it is not mandatory that recourse must first be had to the provisions of the said section and exhausted before a prospective party could be allowed to proceed to the Court.

He further urged upon this Court to hold that recourse to the provisions of the said section is not mandatory but optional as to hold otherwise would amount to importing into the statute or legislation words that were not used by the legislature which would give a different meaning to the text and intendments of the statute as enacted by the legislature.

He further pointed out that in this case, there is no dispute over the selection of a person as a Traditional Ruler as provided for in Section 16 of the Rivers State Traditional Rulers Law No. 4 2015, but rather that the situation here is that the Appellant is bearing a chieftaincy title different from the one Rivers State Government recognized him which is contrary to Section 14 of the said law, and this is distinguishable from the provision in Section 16 of the same law.

He further submitted that the Appellant’s Counsel, has failed to show that the provisions of the statutes which the Courts determined in the cases of UNIVERSITY OF LAGOS & ORS v. OLANIYAN (supra) and INTEGRATED REALITY LTD v. ODOFIN (supra) cited by the Appellant’s Counsel, are in pari materia with the provisions of Section 16 of the Rivers State Traditional Rulers Law No. 4 2015, which is in issue in this case.

Accordingly, he urged upon this Court to resolve issue number 2 in this appeal in the negative, and in favour of the Respondent and against the Appellant, and hold that the Court below was right in refusing Appellant’s preliminary objection.

He concluded by submitting that this appeal lacks merit and ought to be dismissed by this Court.

RESOLUTION OF THE ISSUES
I have carefully considered the four grounds of appeal contained in the amended notice of appeal filed by the Appellants, the two issues formulated for determination of the present appeal by counsel to both parties respectively, the arguments canvassed thereon by the respective parties and the decision contained in the judgment of the lower Court, and I am of the opinion that there are three questions that this Court needs to answer in the determination of this appeal.
These issues are:
1. Whether Ground 4 of the Amended Notice of Appeal upon which Issue No. 1 of the Appellant is predicated is competent same having not arisen from the decision or ruling of the lower Court appealed against.
2. Whether the Respondent’s cause of action premised on violation of Section 14 of the Rivers State Traditional Rulers Law No. 4, 2015 is reasonable? (Ground 4 of the Amended Notice of Appeal).
3. Whether the suit of the Respondent before the Court below is not premature and non-justiciable not having exhausted local and/or domestic remedies prescribed by Section 16 of the Rivers State Traditional Rulers Law No.4, 2015 (Ground 1, 2 and 3 of the Amended Notice of Appeal).

In resolving the very first issue, of whether Ground 4 of the Amended Notice of Appeal is competent same having not arisen from the decision or ruling of the lower Court appealed against, it is important to understand the nature of Ground 4 of the Appellant’s Notice of Appeal.

It is indeed true, that ground 4 of the notice was never a ground of the notice of preliminary objection, neither was it ever an issue raised and canvassed in the written address in support, and it was also never an issue considered by the Court below in its ruling on the said preliminary objection, and this would ordinarily have made ground 4 incompetent and liable to be struck out as it is being raised for the first time on appeal, and also as it does not flow from any part of the ruling.
See the case of FOLAMI v OKEGE (supra).
This case however, is slightly different because ground 4 borders on a jurisdictional issue, and hence can be raised at any time and even for the first time at the Supreme Court. See the cases of UYO LOCAL GOVT. v. AKWA IBOM STATE GOVT. (2021) 11 NWLR (PT. 1786) (CA) AT 41, PARA. F.
The arguments of Respondent’s Counsel on the incompetence of ground 4 of the Appellant’s Notice of Appeal, cannot now hold water.
Ground 4 of the Notice of Appeal is therefore competent, as issues bordering on jurisdiction can be validly raised at any time, and I so hold.

This issue is hereby resolved against the Respondent and in favour of the Appellant.

Issue 2 borders on the issue of whether the Respondent’s cause of action at the trial Court is reasonable, it is important to examine the entire originating summons and statement of claim of the Respondent.

The claims of the Respondent, are herein reproduced:
1. A Declaration that the Defendant being a Rivers State Government recognized traditional ruler can only bear the title of “Eze Oha Evo iii” by which his stool is recognized and not any other title.
2. An Order that the Claimant having been duly selected, coronated and/or installed as the “Eze Woji” or “Nyeweli Woji” (Paramount ruler of Woji) by the Council of Chiefs, Elders and Owhor holders of Woji Community in accordance with Ikwerre Native laws and customs as applicable to Woji Community is the proper person to bear the title of “Eze Woji” or “Nyeweli Woji” and not the Defendant.
3. An order that the Defendant should pay to the Rivers State Government the sum of One Hundred Thousand Naira Only (N100,000.00) or be sent to prison for a term of one year as required by the Chieftaincy laws of Rivers State, the Defendant having violated same.
4. An order of perpetual Injunction restraining the Defendant either by himself, his agents, servants, privies or any other person acting on his behalf from interfering with Claimant’s position or title as Nyeweli Woji or any howsoever appear pirating to himself or assuming the title of Nyeweli Woji, Eze Woji or Nyerisi Oha Woji.

From a proper examination of the four reliefs sought by the Respondent at the lower Court, we can see that reliefs 1 and 2 are indeed the major reliefs and/or claims that this suit is hinged upon.

Reliefs 3 and 4 are incidental and minor reliefs.

The contention of the Appellant in issue, that the lower Court lacked jurisdiction to entertain is indeed based on relief 3.

Even though it is agreed that the lower Court was sitting in exercise of its civil jurisdiction, and hence could not be heard to entertain criminal issues at the same time, it is still too extreme, unfair and unjust for the lower Court to divest itself of jurisdiction, simply as a result of one relief that is defective.
The proper thing for a Court to do given the circumstance, will be to strike out or expunge the defective relief, in this case being relief 3, and go on to entertain the other proper reliefs and claims before it on which it has jurisdiction. This, the Court can do either by the application of Counsel or suo motu in the exercise of its inherent jurisdiction as the master of the proceedings before it. See the Court of Appeal’s decision in UNITED AGRO VENTURES LTD. V. F.C.M.B. LTD. (1998) 4 NWLR (Pt.547) 546 AT 565.

From the foregoing, it will be inappropriate for this Court to strike out an entire suit when indeed the trial Court had the jurisdiction to hear the claims/reliefs in the suit.

I therefore reject the argument of learned Appellant’s Counsel in this wise and I find that the Respondent indeed had a reasonable cause of action in the suit before the lower Court.
Issue 2 is hereby resolved against the Appellant but in favour of the Respondent.

Issue 3 seems to be the crux of the notice of the preliminary objection filed by the Appellant at the lower Court.

Section 16 of the Rivers State Traditional Rulers Law provides that “Where there is a dispute over the selection of a person as a Traditional Ruler, the commissioner may reconcile the parties or direct an administrative enquiry to be held in respect of the dispute.”
The above section of the law holds no ambiguity or complexity and it is to be given its literal interpretation.
The lower Court rightly held, that:
“the Courts have held that the word “May”, is a persuasive or enabling expression. See MOKELU v. FED. COM. FOR WORKS AND HOUSING (1976) 3 SC P. 60, EDEMOR v. UWEGBA (1987) LPELR-1009. I have scrutinized and examined the provisions of the Traditional Rulers Law, No. 4 and I do not think that the provision is mandatory, for the Claimant in this case to first exhaust all the administrative remedies before instituting the suit.”
I find this reasoning sound because of the operative word “may…”. There is nothing confusing or ambiguous about the word “may”. The word “May” can and should not be mistaken for the word “Shall”, as they are not the same thing. Where there is no ambiguity or complexity, words of legislative drafts in statutes should be given their literal and ordinary interpretation.
See the cases of NAAC v. ECONET WIRELESS LTD (2006) 37 WRN 120 AT 156 LINES 30-35; and BASINCO MOTORS LTD v. WOERMANN LINE (2010) 10 W.R.N 1, 9 r. 4 or at pages 29-30 lines 20-25.
I find that the extant provision of Section 16 of the Rivers State Traditional Rulers Law No. 4 2015 are clear, simple and unambiguous and ought therefore to be given their simple, natural and ordinary meaning, which is to the effect that it is not mandatory that a recourse must first be had to the provisions of the said section and exhausted before a prospective party would be allowed to proceed to the Court in the exercise of his right of action as guaranteed by the Constitution, 1999 as amended.
I hereby hold that recourse to the provisions of the said section is not mandatory but it’s rather optional because, to hold otherwise would amount to importing into the statute or legislation words that were not used by the legislature which would give a different meaning to the text and intendments of the statute as enacted by the legislature. Law making is not the function of the Courts, but to interpret same and apply it to extant disputes.

Consequently, I find that issue 3 can only be resolved against the Appellant, and in favour of the Respondent.

Based on the foregoing, this Court is obliged by law to uphold the ruling of the lower Court and to dismiss this appeal, and I so hold.

This appeal is hereby dismissed as it lacks merit, and the ruling of Honourable Justice J. H. Aprioku of the River State High Court, in Suit No. PHC/732/2015, delivered on the 29th of July, 2020 is hereby upheld and sustained.

JOSEPH SHAGBAOR IKYEGH, J.C.A.: The entire pleadings contained in pages 5-8 (statement of claim) and 53-60 (statement of defence) of the record of appeal (the record) as well as the list of documents filed by the Respondent contained in page 25 of the record and those filed by the Appellant contained in page 71 thereof made no mention of a dispute over the selection of a person as a Traditional Ruler that was referred by any of the parties to the Commissioner responsible for Chieftaincy Affairs to activate Section 16 of the Rivers State Traditional Rulers Law, No. 4 of 2015. (Law No. 4 of 2015). Without therefore any complaint on the disputed chieftaincy office being referred to the Commissioner for Chieftaincy Affairs who by the interpretation Section 35 of Law No. 4 of 2015 is the arbiter and/or convener of the resolution of such disputes, nothing could have been placed before the Commissioner to exercise his administrative powers under Section 16 of Law No. 4 of 2015 which cannot operate in a vacuum. Clearly, one cannot place something on nothing and expect it to stand. It will certainly collapse.

On that note, may I most respectfully paraphrase with gratitude the words of His lordship, M.D. Muhammad, J.S.C., in the case of Uwazuruonye V Governor of Imo State (2013) 8 NWLR (Pt.1355) 28 at 58 to the effect that a party must be reminded that a Court of law is not a laboratory for the conduct of experiments regarding grief or rights that are yet to inure (or consummate in the activation of a statutory provision such as Section 16 of Law No. 4 of 2015, if I may most humbly add).

Be that as it a may, considering the context in which the phrase “May” is used in Section 16 (1) and (3) of Law No. 4 of 2015 and the conscious use of the phrase “shall” in subsection (2) thereof, the draftsperson would be taken to have deliberately used the phrase “May” in permissive, optional, discretionary or directory manner to distance it from or in contradistinction to the compulsory, mandatory or commanding manner the phrase “shall” is used in the middle Subsection (2) of Section 16 of Law NO. 4 of 2015.
While acknowledging that the word “may” when used in a statute, is not always interpreted literally as “may” and that sometimes, it may be equivalent to “shall” where the context admits, it is, however, the context in which the word “may” is used that would determine its true meaning vide Ugwanyi V F.R.N. (2012) 8 NWLR (Pt.1302) 384 at 401-402.
For it was held by the Supreme Court in the case of Nigerian Navy V Labinjo (2012) 17 NWLR (Pt.1328) 56 at 77 that it is a general principle of interpretation of statutes that the use of the word “may” generally connotes permissive action, though, in exceptional circumstances, it may mean mandatory or compulsory action and that in the context the word “may” was used in Order 8 Rule 18 of the Court of Appeal Rules, 2007, it can only mean permissive action.

Reasonable cause of action is interwoven with locus standi vide Uwazuruonye V Governor of Imo State (supra) at 57. Locus standi denotes the legal capacity to institute proceedings in a Court of law and is a condition precedent to the determination of the case on the merits vide Owodunni V Regt. Trustees, Celestial Church of Christ and Ors (2000) FWLR (Pt.9) 1455. And like any condition precedent, it is an issue of jurisdiction and being interwoven with reasonable cause of action, the latter is equally an issue of jurisdiction vide Madukolu V Nkemdilim (1962) 1 ALL NLR (Pt.4) 587. Since ‘reasonable cause of action’ is an issue of jurisdiction, it can be raised at any stage of the litigation by any of the parties without the leave of the Court or by the Court itself; therefore ground 4 of the notice of appeal was properly laid, in my view.

For the above reasons and on account of the more elaborate reasons contained in the lead judgment prepared by my learned brother, Kolawole, J.C.A., with which I agree, I too find the appeal unmeritorious and hereby dismiss It and abide by the consequential order(s) contained in the lead judgment.

RIDWAN MAIWADA ABDULLAHI. J.C.A.: I read in advance, the lead judgment just delivered by my learned brother, GABRIEL OMONIYI KOLAWOLE, JCA in this appeal.

I agree with the reasoning, and conclusion for dismissing the appeal. I abide by the consequential order contained therein.

Appearances:

ISAH SEIDU, ESQ, WITH HIM, IS I. D. NWANEKWU. For Appellant(s)

MS B. L. OKPO, ESQ. For Respondent(s)