ENEYO & ORS v. NGERE & ORS
(2022)LCN/16343(CA)
In The Supreme Court
On Friday, January 14, 2022
SC.863/2014
Before Our Lordships:
Olukayode Ariwoola Justice of the Supreme Court of Nigeria
John Inyang Okoro Justice of the Supreme Court of Nigeria
Helen Moronkeji Ogunwumiju Justice of the Supreme Court of Nigeria
Abdu Aboki Justice of the Supreme Court of Nigeria
Tijjani Abubakar Justice of the Supreme Court of Nigeria
Between
1. CHIEF (DR) SILAS ENEYO (JP) 2. CHIEF FRIDAY NTEIRIEN 3. CHIEF P.U.I. MBORH 4. CHIEF M.W. OMAYI (For Themselves And As Representing The Andoni Chiefs Council In Andoni LGA, Rivers State) APPELANT(S)
And
1. CHIEF UJILE DOGOOD NGERE 2. CHIEF K.U. ASUK 3. CHIEF (SIR) D.M. EDEH-OGWUILE 4. CHIEF I.U. OTUO (For Themselves And On Behalf Of Andoni Traditional Rulers Council, Andoni LGA, Rivers State) AND 5. RIVERS STATE COUNCIL OF TRADITIONAL RULERS RESPONDENT(S)
RATIO:
PURPOSE OF A PRELIMINARY OBJECTION
“This Court has countlessly stated that a preliminary objection is filed only when the Respondent is satisfied that there is some fundamental defect in the Appellant’s process. The sole purpose being to terminate the appeal in limine usually on grounds of incompetence.” See:
Odunukwe v. Ofomata (2010) LPELR 2250 SC
Ndigwe v. Nwude (1999) 11 NWLR pt.626 p.314,
NEPA v. Ango (2001) 15 NWLR pt.737 p.627. ABDU ABOKI, J.S.C.
POSITION OF LAW ON PRELIMINARY OBJECTION
Nowadays, preliminary objections are filed once a Respondent notices any error in the Appellant’s processes. This is wrong. Where the Respondent complains of the competency of a ground of appeal and the other grounds are in order, and can sustain the appeal, the Respondent ought to file a motion on Notice to strike out the incompetent grounds and not a preliminary objection. See: Muhammed v. Military Administrator Plateau State (2001) 16 NWLR pt.740 p.524;
NDIC v. Oranu (2001) 18 NWLR pt.744 p.183.
Okereke V. James (2012) 16 NWLR (Pt. 1326) 339 at 348- 349. ABDU ABOKI, J.S.C.
POSITION OF LAW ON A PRELIMINARY OBJECTION BROUGHT BY WAS OF A MOTION ON NOTICE.
“Recently, the apex Court re-iterated the above position in the case of N.N.P.C Famfa Oil Ltd (2012) 5-7 SC (Pt. 1) 1 at 29, when Rhodes Vivour, JSC said:
“If I may add to the above, where, as in this appeal the Preliminary objection was filed against some grounds of appeal and there are other grounds of appeal that can sustain the appeal, a preliminary objection was inappropriate. The respondent ought to have filed a Motion of Notice since the Preliminary objection if successful would not have terminated the hearing of the appeal as there were other grounds of appeal to sustain the appeal.” ABDU ABOKI, J.S.C.
WHETHER THE COURT CAN RAISE AN ISSUE SUO MOTU WITHOUT AN ADDRESS FROM COUNSEL
In Angadi & P.D.P. & ORS, (2018) LPELR-44375 (SC) this Court held that:-
“When a Judge raises an issue on his own motion, or raises an issue not in contemplation of the parties; or an issue not before the Court, the Court is said to have raised the issue suo motu. The well laid down position of the law is that when an issue is raised suo motu the parties should be heard before a decision is reached on the issue… but there is an exception to this procedure. There would be no need to call on counsel to address the Court on an issue suo motu by the Judge:- 1. When the issue relates to the Court’s own jurisdiction; 2. where both parties are not aware or quoted a statute which may have bearing on the case; or 3. When on the face of the record serious questions of the fairness of the proceedings is evident.” ABDU ABOKI, J.S.C.
POSITION OF LAW WHERE A PRELIMINARY OBJECTION IS INCOMPETENT
Where a preliminary objection is incompetent, an appellate Court will have no jurisdiction to entertain such incompetent preliminary objection, and there is no need for any address by the parties.
See also: Ominiyi V. Alabi (2015) LPELR 24399 (SC). ABDU ABOKI, J.S.C.
ABDU ABOKI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal sitting in Port Harcourt, delivered on the 17th of November, 2014.
The Appellants, who were the Plaintiffs at the trial High Court of Rivers State, sitting at Port Harcourt, claimed several declaratory and injunctive reliefs, in their Amended Statement of Claim, filed on the 7th of May 2010 against the 1st – 4th Respondents, the 5th Respondent, and Trade Bank PLC (whose name was later struck out of the matter), as follows:
1. A DECLARATION that by the Omagwa Peace Accord, as contained in a document titled COMMUNIQUE RELEASED DURING THE OBOLO NATIONAL RETREAT FOR ANDONI CHIEFS HELD AT THE INTERNATIONAL AIRPORT HOTEL OMAGWA, PORT HARCOURT FROM 10TH – 13TH NOVEMBER, 2004, and the subsequent Agreements reached at the meeting of the Andoni Chiefs’ Council on the 18.11.2004 at the Delta Hotels Port Harcourt and the inaugural genera/ meeting of the Andoni Chiefs’ Council at Ngo Town, Andoni LGA, on 30.12.2004, the apex ruling Chieftaincy body or Council in Andoni Local Government Area of Rivers State is the ANDONI CHIEFS’ COUNCIL.
2. A DECLARATION that the so called Andoni Traditional Rulers Council is not only moribund but also extinct by virtue of the peace accord reached at the Omagwa retreat for Andoni Chiefs, held from the 10th – 13th November, 2004 at the International Airport Hotel, Omagwa, Port Harcourt and the subsequent Agreements reached at the Andoni Chiefs’ Council meeting, held at Delta Hotels, Port Harcourt on 18.12.2004 and at the Ngo Town, Andoni LGA on 30.12.2004.
3. AN ORDER of this Honourable Court directing or compelling the 1st, 2nd, 3rd, and 4th Defendants to comply with the decisions of the Andoni Chiefs’ Council contained in COMMUNIQUE RELEASED DURING THE OBOLO NATIONAL RETREAT FOR ANDONI CHIEFS HELD AT THE INTERNATIONAL AIRPORT HOTEL OMAGWA, PORT HARCOURT FROM 10TH – 13TH NOVEMBER, 2004, and the subsequent Agreements reached at the Andoni Chiefs’ Council meeting, held at Delta Hotels, Port Harcourt on 18.122004 and at the Ngo Town, Andoni LGA on 30.12.2004.
4. AN ORDER directing or compelling the 1st, 2nd, 3rd and 4th Defendants to account for and transfer all monies accruing to the Andoni Chiefs’ Council vide the 5% Local Government Allocation from November 2004, till date which the 1st, 2nd, 3rd, and 4th Defendants have had and received through Account No. 11638000061132 still being kept, maintained and operated by the 1st, 2nd, 3rd and 4th Defendants in Trade Bank PLC situate at No. 14 Azikiwe Road, Port Harcourt in the name of Andoni Traditional Rulers Council, or any other name for management and disbursement to all Andoni Chiefs, in line with the formula agreed upon by consensus in the following manner:
(i) Rivers State Traditional Rulers Council (deducted at source) … 5%
(ii) President of Andoni Chiefs Council i.e. the 1st Defendant … 45%
(iii) Andoni Chiefs Council … 50%
5. AN ORDER of this honourable Court compelling the 1st – 4th Defendants to comply with the decisions reached at the Omagwa Peace Retreat as contained in a COMMUNIQUE RELEASED DURING THE OBOLO NATIONAL RETREAT FOR ANDONI CHIEFS HELD AT THE INTERNATIONAL AIRPORT HOTEL OMAGWA, PORT HARCOURT FROM 10TH – 13TH NOVEMBER, 2004 and the subsequent Agreements reached at the meeting of the Andoni Chiefs’ Council meeting, on the 18.12.2004 at the Delta Hotels, Port Harcourt and the inaugural meeting of Andoni Chiefs Council at Ngo Town, Andoni LGA on 30.12.2004, by dissolving the former factional Council called Andoni Traditional Rulers’ Council.
6. AN ORDER OF PERPETUAL INJUNCTION restraining the Rivers State Council of Traditional Rulers from transferring or remitting any money or cheque in respect of the 5% Local Government Allocation accruing to Andoni Chiefs to the 1st Defendant or any other Chiefs in Andoni LGA or the Andoni Traditional Rulers or any other Chieftaincy Council established by the 1st to 4th Defendants in Andoni Local Government Area.
7. AN ORDER directing or compelling the 5th Defendant to pay all monies accruing to Andoni Chiefs’ Council from the 5% Local Government allocation to Andoni Council of Traditional Rulers or the 1st – 4th Defendants on record personally from the 5% Local Government allocation fund to Andoni Chiefs Council management and disbursement to all traditionally recognized Chiefs in Andoni LGA as contained in the Communique released at the Omagwa Peace Retreat held between 10th – 13th November, 2004 and the subsequent Agreements reached at the meeting of the Andoni Chiefs Council on the 18.11.2004 at Delta Hotels, Port Harcourt and the inaugural meeting of Andoni Chiefs Council at Ngo Town, Andoni LGA on 30.12.2004.
8. AN ORDER OF PERPETUAL INJUNCTION restraining the 6th Defendant, or its agents, privies or servants from paying any money arising from the 4% allocation from the Rivers State Government of the 5th Defendant to the 1st – 4th Defendant or any of their agents, privies or servants or proxies vide Account No. 1163800061132 or any other account opened by the 1st, 2nd, 3rd, and 4th Defendants in the 6th Defendant or any other Bank in Rivers State.
9. AN ORDER OF PERPETUAL INJUNCTION restraining the 1st – 4th Defendants from circulating any information intended to call for any meeting of the so-called Andoni Traditional Rulers’ Council or in the name of any other Chieftaincy Institution Ngo Town under the aegis of the Andoni Traditional Rulers’ Council or any other Chieftaincy name.
(See Pages 1115 – 1117 of Volume 2 of the Record of Appeal).
On their part, the 1st – 4th Respondents, who were the 1st – 4th Defendants at the trial Court, denied liability to the Appellants’ claims, and in their Amended Statement of Defence, counter claimed against them in the following terms:
1. A DECLARATION that the persistent manipulative interference by the Claimants under the umbrella of association called Andoni Council of Chiefs or Andoni Chiefs’ Council in the management and all matters relating to the statutory allocation to the Defendants of the 5% of all revenues accruable to the Andoni Local Government Council is a violation of the fundamental rights of the Defendants’ freedom of access to the fund.
2 AN ORDER of perpetual injunction restraining the Claimants whether by themselves, agents or privies and collaborators howsoever from further interfering in all matters relating to or affecting the management, sharing or application of the Defendants’ statutory allocation of 5% of all revenues accruing to the Andoni Local Government Council.
3. AN ORDER directing the Plaintiffs jointly and severally to pay to the Defendants the sum of N200,000,000.00 (Two Hundred Million Naira) only as specific performance.
(See pages 1171 – 1190 of Vol.2 of the Record of Appeal)
In response to the amended statement of defence and counter claim, the Appellants filed a Reply to the 1st – 4th Respondents’ Statement of Defence and Amended Defence to Counter Claim.
(See pages 1119 – 1134 of Vol. 2 of the Record of Appeal.)
The 5th Respondent, who was the 5th Defendant at the trial Court did not file any pleadings in the matter.
At the end of trial, the trial Court on the 20th of June, 2011 granted all the Reliefs sought by the Appellants, and dismissed the Counter Claim of the 1st – 4th Respondents.
Dissatisfied with the judgment of the trial Court, the 1st – 4th Respondents lodged an appeal at the Court below vide a Notice of Appeal dated 20.6.2011 and filed on the 21.6.2011, by one F.U. Okoro Esq., of Counsel for the 1st – 4th Respondents. However, on the 15/07/2011, the said Notice of Appeal was withdrawn by the Counsel.
(See Pages 1710 – 1711 of Vol. 3 of the Record of Appeal).
On the same date of the withdrawal of the Notice of Appeal filed i.e. 15th July 2011, the 1st – 4th Respondents filed another Notice of Appeal, this time by the Law Firm of Okocha & Okocha & Co., signed by O.C.J. Okocha, SAN. The Notice of Appeal (found at pages 1699 – 1704 of Vol. 3 of the Record of Appeal), was the basis upon which the appeal was heard at the Court below.
After the hearing of the appeal and the Preliminary Objection raised by the Appellants herein against the competence of Ground 1 of the 1st – 4th Respondents’ Notice of Appeal, the Court below, in its judgment unanimously allowed the appeal of the 1st-4th Respondents, and held that the Appellants’ suit before the trial Court was not properly constituted as to parties, and accordingly struck out the suit as incompetent.
(See pages 1910 – 1956 of Vol. 3 of the Record of Appeal).
It is against this decision of the Court below that the Appellants appealed to this Court via an Amended Notice of Appeal, filed on the 25th of February, 2015 upon seven grounds.
In line with the Rules of this Court, briefs of argument were filed and exchanged, by Counsel on both sides.
In the Appellants’ brief of Argument settled by Sebastian T. Hon, SAN, FCIArb, five issues were formulated on behalf of the Appellants. They are:
1. Whether the Court of Appeal had jurisdiction to entertain the 1st – 4th Respondents’ appeal when same had been withdrawn and deemed by operation of law, to have been dismissed.
2. Whether the Appellants’ Notice of Preliminary Objection at the Court of Appeal against Ground 1 of the 1st – 4th Respondents’ Grounds of Appeal was competent in law, and if so, whether the Court of Appeal was right in law to have suo motu struck it out, without asking the parties to address it on the competence thereof.
3. Whether Ground 1 of the Grounds of Appeal filed at the Court below by the 1st – 4th Respondents herein was competent in law.
4. Whether the Appellants’ Suit as constituted at the trial Court was competent, and if so, whether the lower Court was right in law to have held that it was incompetent and consequently proceeded to strike it out?
5. Whether the Court of Appeal was right in refusing to grant the Appellants’ Reliefs as claimed in the trial Court?
For the 1st – 4th Respondents, the following three issues were donated to this Court for determination, in their brief of argument settled by O.C.J. Okocha, SAN, namely:
1. Whether the Court of Appeal had jurisdiction to entertain the 1st – 4th Respondents’ appeal brought by Notice of Appeal dated and filed on 15th July, 2011?
2. Whether the Court of Appeal committed any error in law when it struck out the Preliminary Objection filed by the Appellants against Ground 1 of the 1st – 4th Respondents’ Notice of Appeal dated and filed on 15th July, 2011?
3. Whether the Court of Appeal committed any error in law when it held that the Appellants’ suit before the High Court was incompetent, and thereupon proceeded to strike out the suit?
The 5th Respondent’s brief of argument, settled by Lawrence S. Oko-Jaja, Esq., contains a sole issue for determination, to wit.
“Whether the Court of Appeal was right when it held that the Appellants’ Suit No: PHC/2060/2005 at the High Court was incompetent and consequently struck out the said suit, for the Appellants’ lack of juristic personality?”
My Lords, the substance of the issues formulated by Counsel on both sides is the same. I therefore adopt the issues distilled by the 1st – 4th Respondents in the determination of this appeal.
ISSUE ONE
Whether the Court of Appeal had jurisdiction to entertain the 1st – 4th Respondents’ appeal brought by Notice of Appeal dated and filed on 15th July, 2011?
It is submitted for the Appellants that by virtue of the Notice of Withdrawal of Appeal, filed by F.U. Okoro Esq., the erstwhile Counsel for the 1st – 4th Respondents, on the 15th of July 2011, the withdrawn appeal stood dismissed by virtue of Order 11 Rule 5 of the Rules of the Court below, 2011, and the Notice of Appeal, subsequently filed by the Law Firm of O.C.J Okocha SAN, on the same date, was a nullity and incapable of invoking the jurisdiction of the Court below, as that Court had become functus officio.
The argument of learned senior counsel for the Appellants is that having withdrawn the initial Notice of Appeal filed on the 21.6.2011, the appeal was by law dismissed and the Court of Appeal lacked the jurisdiction to hear and determine the appeal. Reliance was placed on the case of Savannah Bank Ltd v. Ajilo (1989) 1 NWLR (Pt. 97) 305 325.
Learned senior Counsel for the Appellants posited that once a Court becomes functus officio, it lacks the power to further adjudicate on the matter, vide:
Nigerian Army v. Iyela (2009) FWLR (Pts 452) 1012 at 1030 SC;
Amah v. Nwankwo (2008) FWLR (pt. 411) 879 at 895.
He urged this Court to resolve this issue in the Appellants’ favour and hold that the Court below lacked the requisite jurisdiction to entertain the appeal of the 1st – 4th Respondents.
Arguing contrariwise, it is submitted for the 1st – 4th Respondents that a party who is dissatisfied with any decision, ruling, judgment or order of any Court, is entitled to file as many Notices of Appeal or as many Grounds of Appeal as he deems right. The following authorities were relied on:
Section 24(2) (a) Court of Appeal Act, LFN 2004;
Tukur v. Government of Gongola State (1988) 1 NWLR (Pt. 68) 39 at 48.
Learned Senior Counsel for the 1st – 4th Respondents maintained that the two Notices of Appeal, having been filed within the time stipulated by the Court of Appeal Act, was properly and validly filed and this Court is urged to so hold.
In reply, it is submitted for the Appellants that having conceded in Paragraph 4.6 of their Brief of Argument that the first notice of appeal filed on the 21st of June 2011 was withdrawn, their appeal was deemed withdrawn as provided for in Order 11 of the Court of Appeal Rules, 2011.
Learned Silk distinguished the cases of Tukur v. Government of Gongola State, supra, and Registered Trustees of the Rosicrucian Order (AMORC) v. Awoniyi, supra, from the instant appeal. According to him, in the two cases mentioned above, the notices of appeal were withdrawn at the hearing of the appeal and were subsequently struck out. However, where as in the instant appeal, the Appellant follows the procedure stipulated in Order 11 of the Court of Appeal Rules, 2011, the appeal is deemed dismissed. He placed reliance on the case of Setraco (Nig) Ltd v. Kpaji (2017) 5 NWLR (Pt. 1558) 280, and urged this Court to resolve this issue in the Appellant’s favour.
Now it is not in dispute that at page 1710 of Vol. 3 of the Record of Appeal, a Notice of Withdrawal of Appeal was filed by F.U. Okoro, Esq., on the 15th of July 2011, to wit:
“TAKE NOTICE that the 1st to 4th Defendants/Appellants do hereby withdraw the appeal which they filed vide the Notice of Appeal dated 20th June 2011 and filed on 21st June 2011.”
The rigorous contention of learned senior counsel for the Appellants is that once an Appellant decides not to prosecute the appeal any further and pursuant thereto files a Notice of Intention to withdraw, the Court is bound to terminate the appeal either by striking it out or dismissing it. In other words, the Notice of Withdrawal of Appeal filed by the 1st – 4th Respondents operates as a dismissal of the appeal under ORDER 11 of the Court of Appeal Rules, 2011 and the Court below lacked the requisite jurisdiction to hear and entertain the appeal.
I do not think that this submission is supported by the provisions of ORDER 11 of the Court of Appeal Rules, 2011 on which the Appellants relied. It is pertinent to examine the said provision which says:-
1. An appellant may at any time before the appeal is called on for hearing, serve on the parties to the appeal and file with the Registrar, a notice to the effect that he does not intend to prosecute the appeal any further.
2. If all parties to the appeal consent to the withdrawal of the appeal without an order of the Court, the Appellant may file in the Registry the document or documents signifying such consent and signed by the parties or by their Legal Representatives and the appeal shall thereupon be deemed to have been withdrawn and shall be struck out of the list of appeals by the Registrar and in such event any sum deposited against costs shall be paid out to the Appellant.
3. The withdrawal of an appeal with the consent of the parties under Rule 2 of this Order shall be a bar to further proceedings on application made by the respondent under Order 9.
4. If all the parties do not consent to the withdrawal of an appeal as aforesaid, the appeal shall remain on the list, and shall come on for the hearing of any issue as to costs or otherwise remaining outstanding between the parties, including any application made by the Respondent under Order 9, and for the making of an order as to the disposal of any sum deposited against cost.
5. An appeal which has been withdrawn under this Order, whether with or without an order of the Court, shall be deemed to have been dismissed.
6. Where an appeal is withdrawn under this Order, any Respondent who has not given a notice under Order 9, may give Notice of Appeal and proceed therewith in the manner prescribed by the foregoing Rules, and in such case the time limited for giving notice of appeal, for depositing the sum estimated to cover the cost of the record and for making deposit against costs may, on application to the Court, be extended so far as is reasonably necessary in all the circumstances of the case.
Firstly there was nothing on record to show that all the parties to the appeal consented to its withdrawal as stipulated in Order 11 Rule 2. No document or documents signifying such consent and signed by the parties or their legal representatives was filed in the Registry of Court below. Secondly, by virtue of the provisions of Order 11 Rule 4 where all the parties do not consent to the withdrawal of the appeal, then the appeal ought to and should remain on the list for the hearing and determination of any issue as to costs or otherwise remaining outstanding between the parties.
Thus under the provisions of Order 11 of the Court of Appeal Rules 2011, the mere filing of a Notice of Withdrawal of an appeal without more, does not ipso facto automatically entitle the Court to terminate the appeal. See: Dingyadi v. INEC & Ors (2011) LPELR 950 SC.
It follows therefore that the said notice of withdrawal of the appeal filed by 1st – 4th Respondents, cannot be said to have met the requirements of Order 11 of the Court of Appeal Rues 2011 to warrant the termination of the appeal.
What is more, the 1st – 4th Respondents’ counsel on the same date of the filing of the Notice of Withdrawal of Appeal, filed another Notice of Appeal, still within the stipulated time for appealing.
In Socio-Political Research Development v. Ministry of FCT & 2 Ors (2018) LPELR 45708 SC, this Court held that filing of more than one notice of appeal does not affect the validity of an appeal if all the notices are filed within the statutory period for appealing.
In the instant case the two notices of appeal were filed within the statutory time of appealing. They are both valid, and the withdrawal of one of the Notices of Appeal, does not affect the competence of this appeal/ provided there is a valid Notice of Appeal. The Court below therefore had the jurisdiction to entertain the appeal.
In consequence therefore, I resolve this issue against the Appellants.
ISSUE TWO
Whether the Court of Appeal committed any error in law when it struck out the Preliminary Objection filed by the Appellants against Ground 1 of the 1st – 4th Respondents’ Notice of Appeal dated and filed on 15th July, 2011?
The pith of the arguments of learned senior counsel for the Appellants on this issue was that the Notice of Preliminary Objection filed against Ground 1 of the Notice of Appeal filed at the Court below by the 1st – 4th Respondents herein, was competent and the Court below was unduly technical in discountenancing it.
Learned senior counsel for the Appellants drew the attention of this to the said Notice of Preliminary Objection, at pages 1870 – 1871 of Vol. 3 of the Record of Appeal, and argued that even though the Appellants headed their application “Notice of Preliminary Objection to the hearing of this appeal”, the entire body of the application shows that it was directed against only Ground 1 of the Grounds of Appeal, and the content, rather than the heading ought to have influenced the mind of the Court below.
He posited that strict adherence to forms rather than insistence on substantial compliance with stipulated forms, results in miscarriage of justice, citing in support, these cases:
Okpetu v. COP, Delta State (2001) FWLR (Pt. 69) 1317 at 1333;
Ikechukwu v. Nwoye (2014) FWLR (Pt. 724) 101 at 110.
He urged this Court to hold that the Appellants’ Objection against Ground 1 of the 1st – 4th Respondents’ Grounds of Appeal, was competent in law.
It is the further contention of learned SAN that the Court below was in grave error, leading to a breach of the Appellants’ right to fair hearing and grave miscarriage of justice, when without giving the Appellants any opportunity to make submissions on the competence, if any, on their application, it proceeded to strike out same. He argued that the settled position of law is that any point raised and resolved suo motu by a Court of law without affording the parties the opportunity of being heard on the said point, amounts to a miscarriage of justices He called in aid these cases:
Jev v. Iyortyom (2014) All FWLR (Pt. 747) 749;
Unity Bank Plc v. Denclag Ltd (2013) All FWLR (pt. 675) 206;
Ukong v. Commissioner of Finance & Dev., Akwa Ibom State (2007) All FWLR (Pt. 350) 1246.
On the competence of Ground 1 of the Grounds of Appeal filed at the Court below, by the 1st – 4th Respondents, it is the view of learned senior counsel for the Appellants that the said Ground 1 raised the issue of the procedural jurisdiction of the trial Court, namely, the capacity of the “Andoni Chiefs Council in Andoni LGA, Rivers State”, to sue.
Learned senior counsel pointed out that the issues raised in that ground (Ground 1) were neither raised in the 1st – 4th Respondents’ pleadings nor any of the other parties’ pleadings at the trial Court, and none of the raised them by way of evidence or counsel’s address at the trial Court. He posited that in the absence of any leave granted by the Court below to raise the ground of appeal, that ground of appeal is incompetent. The following cases were relied upon:
Akeredolu v. Mimiko (2014) All FWLR (Pt. 728) 829;
Garuba v. Omokhodion (2011) FWLR (Pt. 596) 404;
C.I.I. Ltd v. Ajaokuta Steel Co. Ltd (2014) All FWLR (Pt. 731) 1441;
Nidocco Ltd v. Gbajabiamala (2014) All FWLR (Pt. 724) 1.
He concluded by submitting that Ground 1 of the 1st – 4th Respondents’ Grounds of Appeal at the Court below, having not arisen from the judgment of the trial Court, was incompetent and ought to be struck out.
He urged this Court to resolve this issue in favour of the Appellants.
For the 1st – 4th Respondents, it is submitted that the Court below did not commit any error when it struck out the Preliminary Objection filed by the Appellants.
According to the learned SAN, the Court below duly considered the issue that arose in that regard in the light of Order 10, Rule 1 of the Court of Appeal Rules, 2011 and found that the Preliminary Objection was incompetent and not worthy of consideration, and same was accordingly struck out. He placed reliance on the following cases:
Dada V. Dosunmu (2006) 18 NWLR (Pt. 1010) 134 at 154;
NNPC V. Famfa Oil Ltd (2012) 17 NWLR (Pt. 1328) 148;
Okereke v. James (2012) 16 NWLR (Pt. 1326) 339.
On the issue of fair hearing, it is the argument of learned senior counsel that the Appellants were not denied their right to fair hearing, as the Court below duly considered the Appellants’ Preliminary Objection, before coming to the conclusion that same was incompetent He drew the attention of this Court to Pages 1870 – 1871 of Vol. 3 of the Record.
This Court is urged to resolve this issue against the Appellants.
The Appellants in reply, submitted that having not responded to the weighty arguments canvassed by the Appellants under this issue, the 1st – 4th Respondents are deemed to have conceded to them. The case of Sakati v. Bako (2015) ALL FWLR (Pt. 800) 1182, was relied on.
The Appellants herein (as Respondents) had, at the Court below, filed a Notice of Preliminary Objection to wit:
NOTICE OF PRELIMINARY OBJECTION TO THE HEARING OF THIS APPEAL
ORDER 10, RULE 1, RULES OF THE COURT OF APPEAL 2011 AND SECTION 241(1)(A) OF THE 1999 CONSTITUTION OF THE FEDEARL REPUBLIC OF NGERIA, AS AMENDED
TAKE NOTICE that at the hearing of this Appeal, the Respondents shall rely on a Preliminary Objection to the hearing of the Appeal, particularly in so far as Ground 1 and the Particulars contained in the Notice of Appeal filed on the 15th day of July, 2011 are concerned, and same be struck out for incompetence…”
The grounds of the objection were also set out at pages 1870 – 1871 of Vol. 3 of the Record of Appeal.
As rightly submitted by learned senior counsel on behalf of the Appellants, at page 7 of the Appellants’ brief of argument, a critical examination of the said Notice of Preliminary Objection shows that it was strictly directed at Ground 1 of the Grounds of Appeal filed by the 1st – 4th Respondents herein and not the entire appeal before the Court below.
This Court has countlessly stated that a preliminary objection is filed only when the Respondent is satisfied that there is some fundamental defect in the Appellant’s process. The sole purpose being to terminate the appeal in limine usually on grounds of incompetence. See:
Odunukwe v. Ofomata(2010) LPELR 2250 SC
Ndigwe v. Nwude (1999) 11 NWLR pt.626 p.314,
NEPA v. Ango (2001) 15 NWLR pt.737 p.627.
Nowadays, preliminary objections are filed once a Respondent notices any error in the Appellant’s processes. This is wrong. Where the Respondent complains of the competency of a ground of appeal and the other grounds are in order, and can sustain the appeal, the Respondent ought to file a motion on Notice to strike out the incompetent grounds and not a preliminary objection. See:
Muhammed v. Military Administrator Plateau State (2001) 16 NWLR pt.740 p.524;
NDIC v. Oranu (2001) 18 NWLR pt.744 p.183.
Okereke V. James (2012) 16 NWLR (Pt. 1326) 339 at 348- 349.
In the appeal under consideration, the Court below had held thus, at pages 1919 – 1921 of Vol. 3 of the Record of Appeal:
“Recently, the apex Court re-iterated the above position in the case of N.N.P.C Famfa Oil Ltd (2012) 5-7 SC (Pt. 1) 1 at 29, when Rhodes Vivour, JSC said:
“If I may add to the above, where, as in this appeal the Preliminary objection was filed against some grounds of appeal and there are other grounds of appeal that can sustain the appeal, a preliminary objection was inappropriate. The respondent ought to have filed a Motion of Notice since the Preliminary objection if successful would not have terminated the hearing of the appeal as there were other grounds of appeal to sustain the appeal.”
Put simply, the principle enunciated by the apex Court in the above authorities is that a preliminary objection challenging the competence of only one or some grounds of an appeal is incompetent if not brought by was of a motion on notice. This position of the Supreme Court reflects the purport of the provisions of Order 10, Rule 1 of the Court of Appeal Rules, 2011 under which the Respondents’ preliminary objection was brought. The provisions are:
1. Respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the Appellant three clear days’ notice thereof before the hearing, setting out the grounds of objection, and shall file such notice together with twenty copies thereof with the registry within the same time.
These provisions, which are in plain and unambiguous language, talk of and provide for a preliminary objection to the hearing of the appeal, that is, an objection which challenges the competence of an appeal. They do not envisage an objection which does not challenge the competence and therefore hearing of the appeal by the Court, but only one or more grounds of the appeal and leaving other grounds which hearing of the can be sustained on or proceeded with, by the Court. By the position of the apex Court and the provisions of Order 10, Rule 1 of the Court of Appeal Rules, 2011 pursuant to which it was brought, the Respondents preliminary objection which challenges the competence of only one (1) out of five (5) grounds of the appeal, is not one which questions the hearing of the appeal, and so incompetent on the grounds that it was not brought by way of a motion on notice.”
The above stance of the Court below, indeed represents the position of this Court and is therefore unassailable, the effect of which is that the Court below was right to hold that the Appellants’ preliminary objection against ground 1 of the 1st – 4th Respondents’ Notice of Appeal, was incompetent, and same was rightly struck out.
The second limb of this issue is: “whether the Court of Appeal was right in law to have suo motu struck it out, without asking the parties to address it on the competence thereof.”
I must straightway state that there is nothing irregular in the procedure adopted by the Court below, I say so because a Court is entitled to raise an issue suo motu and take a decision on it, without asking parties to address it, where they fail to take into consideration, a statute or when it relates to the Court’s own jurisdiction.
In Angadi & P.D.P. & ORS, (2018) LPELR-44375 (SC) this Court held that:-
“When a Judge raises an issue on his own motion, or raises an issue not in contemplation of the parties; or an issue not before the Court, the Court is said to have raised the issue suo motu. The well laid down position of the law is that when an issue is raised suo motu the parties should be heard before a decision is reached on the issue… but there is an exception to this procedure. There would be no need to call on counsel to address the Court on an issue suo motu by the Judge:- 1. When the issue relates to the Court’s own jurisdiction; 2. where both parties are not aware or quoted a statute which may have bearing on the case; or 3. When on the face of the record serious questions of the fairness of the proceedings is evident.”
It follows therefore that the Court below in deciding whether the Preliminary Objection of the Appellants was competent, being an issue of the Court’s jurisdiction, needed not call any of the parties for further address in arriving at a decision. Where a preliminary objection is incompetent, an appellate Court will have no jurisdiction to entertain such incompetent preliminary objection, and there is no need for any address by the parties.
See also: Ominiyi V. Alabi (2015) LPELR 24399 (SC)
The consequence of the foregoing is that the Court below was on terra firma, when it suo motu struck out the preliminary objection, without asking the parties to address it on the competence thereof. There was therefore no breach of the Appellants’ right to fair hearing.
This issue is resolved against the Appellants.
ISSUE THREE
Whether the Court of Appeal committed any error in law when it held that the Appellants’ suit before the High Court was incompetent, and thereupon proceeded to strike out the suit?
It is submitted for the Appellants that the Appellants’ suit as constituted at the trial Court was competent in law, and the Court below was wrong to have struck it out for want of competence.
Learned senior counsel for the Appellants invited this Court’s attention to an excerpt of the judgment of the Court below, at pages 1930 and 1993 of Vol. 3 of the Record of Appeal, and argued that the decision of the Court below that the Suit was incompetent, clearly and directly stands in the way of the decision of this Court in Fawehinmi v. N.B.A. (No.2) (1989) All NLR 274. He added that had the Court below read the decision in Fawehinmi’s case supra, dispassionately, it would have inevitably found for the Appellants herein. He maintained that in the present case, the “Andoni Chiefs’ Council, Andoni LGA, Rivers State”, though admittedly unincorporated, it can sue or be sued in a representative action. He relied on these cases:
U.B.N. Plc v. Ntuk (2004) FWLR (Pt. 234) 1985 at 1999;
Nkpornwi v. Ejire (2009) 9 NWLR (Pt. 1145) 131;
Jinadu v. Esurombi -Aro (2005) All FWLR (Pt 251) 349 at 392.
Relying on a plethora of authorities, including Okonji v. Njokanma (1989) 4 NWLR (Pt. 114) 161 at 169, and Mbanefo v. Molokwu (2014) All FWLR (Pt. 742) 1665 at 1698; learned Silk posited that it is settled law that in a representative suit like this one, both the named and the unnamed parties, are parties to the suits, even though the named parties are the dominis litis in the said suit.
He postulated that the Court below committed a grave error to have struck out the Appellants’ suit, when the suit was instituted in their names, and on behalf of the group they were/are representing.
This Court is urged to hold that the Court below was wrong in law, to have struck out the Appellants’ Suit at the trial Court.
In response to the above, it is submitted for the 1st – 4th Respondents that the Court below did not commit any error in law when it found that the Appellants’ suit was improperly constituted, because the Appellants purported to sue in a representative capacity for themselves and on behalf on “Andoni Chiefs’ Council” which was not and is not a legal entity, registered or unregistered, and was not a legal, juristic or judicial person, and could not appoint any other person to sue on its behalf.
Learned senior counsel for the 1st – 4th Respondents, while relying on the case of Iyke Medical Merchandise v. Pfizer Inc. (2001) 10 NWLR (Pt. 722) 540, 555, listed the juristic persons which may sue or be sued in law, and contended that the “Andoni Chiefs’ Council” does not fall into any of the categories.
He argued that having sued as they did, for themselves, and as representing the Andoni Chiefs’ Council, their suit was incompetent, as the very foundation upon which the suit was instituted, was defective, and the Court below was right to have struck it out. He cited and relied on these cases:
Ayorinde v. Oni (2000) 3 NWLR (Pt. 649) 348;
Madukolu v. Nkemdilim (1962) All NLR REPRINT (PT 2) 581; The Administrators/ Executors of the Estate of Sani Abacha v. Eke-Spiff (2009) NWLR (Pt. 1139) 97.
This Court is urged to so hold and resolve this issue against the Appellant.
In reply, it is submitted for the Appellants that the 1st – 4th Respondents, have not sufficiently countered the weighty submissions of the Appellants and they therefore deemed conceded. This Court is urged to so hold.
For the 5th Respondent, it is submitted that the Court below was right when it held that the Appellants’ suit at the trial Court was incompetent, as the Appellants were not vested with juristic personality to bring the said action.
Learned Counsel for the 5th Respondent, adopted the arguments postulated on behalf of the 1st – 4th Respondents and argued that “Andoni Chiefs’ Council in Andoni L.G.A., Rivers State” not having been established in accordance with the provisions of Section 11(1) of Cap 25, Laws of Rivers State, is bereft of legal personality. He placed reliance on the case of Tijjani Bambe & Ors v. Alhaji Yusuf Adetunji Aderinole & Ors (1977) All NLR (Reprint) 5 and urged this Court to resolve this issue against the Appellants, and dismiss the appeal.
In reply, it is the submission of learned senior Counsel for the Appellants that the case of Tijjani Bambe & Ors v. Alhaji Yusuf Adetunji Aderinole & Ors (1977) All NLR (Reprint) 5 is not on all fours with the instant and cannot be good authority for the issue in contention.
In conclusion, this Court is urged to allow the appeal, and set aside the judgment of the Court below, and affirm the decision of the trial Court.
There is no doubt that as a general rule, for an action to be properly constituted so as to vest jurisdiction in the Court to adjudicate on it, there must be a competent plaintiff and a competent defendant. This presupposes that only natural persons, that is, human beings and juristic or artificial persons such as body corporate are competent to sue or be sued. Consequently, where either of the parties is not a legal person, the action is liable to be struck out as being incompetent. The law, however, recognizes that apart from natural and juristic persons, some non-legal entities can sue and be sued eo nomine. Thus, it has been held that no action can be brought by or against any party other than a natural person or persons unless such a party has been given by statute, expressly or impliedly or by the common law, either: (a) A legal persona under the name by which it sues or is sued, e.g. corporation sole and aggregate, bodies incorporated by foreign law and “quasi-corporations” constituted by Act of Parliament; or (b) A right to sue or be sued by that name e.g. partnerships, trade unions, friendly societies and foreign institutions authorized by their own law to sue and be sued but not incorporated. See:
Fawehinmi v. N.B.A. (No.2) (1989) 2 NWLR (Pt. 105) 558;
Carlen (Nig.) Ltd. v. Unijos (1994) 1 NWLR (Pt.323) 631;
Iyke Medical Merchandise v. Pfizer Inc. & Anor (2001) LPELR 1579 SC
The rationale behind this is that law suits are in essence the determination of legal rights and obligations in any given situation. Therefore only such natural and juristic persons in whom the rights and obligations can be vested are capable of being proper parties to law suits before Courts of law.
The consequence of the above is that in the instant appeal, for the Appellants’ suit to be properly constituted, so as to vest jurisdiction on the trial Court, the Appellants, as Plaintiffs, must have the capacity and legal competence to initiate it.
There is no modicum of doubt that the contention of the Appellants herein, is that its action at the trial Court is competent in law, as Andoni Chiefs’ Council is a juristic person, which can sue or be sued eo nomine. To determine this issue, let me start by looking at the provisions of Cap 25, Laws of Rivers State 1978, which I will hereafter refer to as “Cap 25”.
Section 11 of Cap 25 provides as follows:
1. There shall be established for each local Government Area of the State, a Council of Chiefs whose membership shall consist of all recognized Chiefs of the area.
2. Where the number of recognized Chiefs in the Local Government Area is less than nine, the Council of Chiefs shall by resolution, co-opt such other indigenous Chiefs as are representative of the entire area to the said Council of Chiefs, bringing the total membership of such Council to nine.
Provided that the co-opted members are approved by the Commissioner.
3. Nothing in Subsection (2) of this Section shall be construed to confer on any co-opted member of such council, the status of official recognition by the Governor, pursuant to the provisions of Section 2 of this Law.
Under Section 2 Cap 25, a Chief is recognized by the Governor, by instrument under his hand, recognizing the Chief as occupying the Chieftaincy stool of the town or community concerned. Section 12 of Cap 25 sets out the functions of the Council of Chiefs established by Section 11(1). It follows therefore that the Council of Chiefs established by Section 11(1) and whose functions were set out in Section 12, is the Council of Chiefs in a Local Government Area, which is composed of Chiefs who the Governor of the State, by instrument or certificate under his hand, recognized as occupying the Chieftaincy stool of the community or town concerned. Thus, a legally cognizable Council of Chiefs, for a Local Government Area in Rivers State, is the Council of Chiefs whose composition complies with, or is in accordance with the clear provisions of Section 11(1) and (2) of Cap 25. That is the Council of Chiefs statutorily established, created and provided for, in the Law.
In the appeal under consideration, the Appellants had initiated the suit before the trial Court in their names, for themselves and as representing the Andoni Chiefs’ Council in Andoni Local Government Area of Rivers State. There is no dispute as to the juristic personality of the Appellants to sue or be sued in their individual names. The point of disagreement is whether the Andoni Chiefs’ Council in Andoni Local Government Area, on whose behalf the suit was initiated, had the juristic capacity to sue or be sued under the provisions of CAP 25 of the Laws of Rivers State.
The Court below, had at pages 1931 -1933 of Vol. 3 of the Record, observed as follows:
“Though the learned counsel for the 1st – 4th Respondents (now Appellants) has argued, strenuously that the Andoni Chiefs’ Council in Andoni Local Government Area is a creation of CAP 25, he did not state categorically that it was established in compliance or accordance with the specific provisions of Section 11(1) and (2)which deal with the establishment or creation of a Council of Chiefs for a Local Government Area. He did not even argue that the said Chiefs’ Council is the Council of Chiefs for the Andoni Local Government Area as provided for in CAP 25, but merely relied on the Omagwa Retreat and Communique to say that it was agreed by all Andoni Chiefs… CAP 25 did not leave or provide that a Council of Chiefs for a Local Government Area is to be established and/or constituted by agreement or communique of all the Chiefs in a Local Government Area. It is not for all the chiefs in a Local Government to sit down, meet or hold a retreat and then agree to establish and constitute a Council of Chiefs for the Local Government Area under CAP 25. The Chiefs and indeed all the people of a Local Government Area do not have the power and authority under CAP 25 to purport to do so by whatever means, howsoever. By their own case, in both pleadings and evidence, the 1st – 4th Respondents have demonstrated that the Andoni Chiefs’ Council who they claimed to have represented in the suit, is/was not established and constituted pursuant to, and in accordance with the provisions of Section 11 (1) and (2) of CAP 25. The Andoni Chiefs Council is not envisaged or within the purview of CAP 25 for it to be a statutory creation under that Law. It is not even the 1st – 4th Respondents’ case that the 1st Appellant, as the only recognised Chief in Andoni Local Government Area, had in compliance/accordance with Subsection (2) of Section 11, agreed by a resolution, to co-opt other indigenous Chiefs as representatives of the entire area and that such indigenous Chiefs were approved by the Commissioner for Chieftaincy Affairs, for them to become members of the Andoni Local Government Area Council of Chiefs. I should point that the composition of a Council of Chiefs for a Local Government Area, under Subsection (2) of Section 11, is limited in its minimum and maximum number to nine (9) members. Such a Council is to compose of, or be constituted by a minimum and maximum number of nine members comprising of the recognized Chief(s) and the co-opted indigenous Chiefs approved by the Commissioner for Chieftaincy Affairs as expressly provided in that subsection. Under the provisions of the subsection, the number of members of the Council of Chiefs cannot be more than nine (9). This is unlike the provisions of Subsection (1) under which the number of the recognized chiefs in the Local Government Area, which may be more than nine (9), determines the maximum number of its membership at any particular time. The Andoni Chiefs Council, which admittedly is made up of all the Chiefs in Andoni (One Hundred and Twenty (120) of them, cannot seriously be said to be a creation or creature of, or established by or in compliance or accordance with the provisions of CAP 25. Since it is a contraption not within the purview of that Law, the Andoni Chiefs’ Council cannot claim to perform the functions of a Council of Chiefs established for a Local Government Area in order to acquire the right to sue eo nomine and thereby lacks the juristic capacity to sue or be sued in a Court of law on the grounds of performance of the functions. Because it is strange to the Law, the Andoni Chiefs Council cannot claim to have been vested with juristic personae, either as a quasi or near corporation, expressly or impliedly for the principle of law in the cases of Ataguba & Co. v. Gura Nig. Ltd; Thomas v. L.B.Bd; and Carlen v. Univ. of Jos(al supra) to apply to it. In this regard, I am in agreement with the learned Silk for the Appellants, when he said that the Andoni Chiefs’ Council is not a legal entity, registered or unregistered, and neither is it a legal juristic or judicial person to be clothed with the right to sue or be sued in a Court of law. In the circumstance, it cannot appoint any other person to sue on its behalf.”
I am in total agreement with the above quoted decision of the Court below. I only add to support that Cap 25 made no provisions whatsoever as to the name by which each Local Government Area Council of Chiefs is to be called, provided that such a Council of Chiefs by whatsoever name so called, must conform in its composition and membership, within the succinct and clear provisions of Section 11 of Cap 25 of the Laws of Rivers State 1978.
It is manifest from the contents of Exhibits A and B, that the only Government recognized Chief in Andoni Local Government Area is the 1st Respondent. What this implies is that the 1st Respondent, vide Section 11(2) of Cap 25, is statutorily empowered to co-opt such other indigenous Chiefs as are representative of entire area to the said Council of Chiefs, bringing the total membership of such Council to nine (9). As rightly held by the Court below, this appeal falls within Subsection 2 of Section 11 of Cap 25, the import of which is that the membership of the Council must have a maximum number of nine (9).
It has not been shown in this appeal that the 1st Respondent co-opted other indigenous chiefs, neither was it borne out of the Records before this Court that the co-opted chiefs were approved by the Commissioner. What is more, the Andoni Chiefs’ Council, which is made up of all the Chiefs in Andoni (One Hundred and Twenty (120) of them, is in contravention of Section 11(2) of the Law and is therefore not a legal juristic or judicial person to be clothed with the right to sue or be sued in a Court of law. In the circumstance, it cannot appoint any other person to sue on its behalf.
Consequently, I answer the question “whether the Court of Appeal committed any error in law when it held that the Appellants’ suit before the High Court was incompetent”, in the negative and resolve this issue against the Appellants.
The Appellants have contended in their reply brief of argument that Ground one of the 1st – 4th Respondents notice and grounds of appeal at the Court below, having not arisen from the pleadings and having not been raised either in evidence or at the addresses of the parties, was a fresh issue for which the leave of the Court below ought to have been sought for and obtained and in the absence of such leave, is incompetent. The said ground one attacked the legal or juristic capacity of the Appellants to maintain and sustain an action or appeal.
In Socio-Political Research Development v. Ministry of FCT & Ors (2018) LPELR 45708 (SC), this Court, per Aka’ahs JSC, opined thus:
“The juristic personality of a plaintiff is sine qua non to the plaintiffs capacity to institute and maintain a legal action in Court. Where the legal capacity of the plaintiff is being questioned, it goes to the jurisdiction of the Court and the Court must ascertain that the plaintiff has the capacity to sue before it can proceed to hear the matter. The issue can be raised for the first time in the appellate Court”
See also: Abubakar & Ors v. Yar’Adua & Ors (2008) LPELR 51 (SC)
There is no doubt that this issue of juristic personality of the Appellants touches and affects the jurisdiction and competence of the Court to entertain the matter, hence it can be raised at any time and level of the Courts, with or without leave.
In the final analysis, and for the reasons set out above, I adjudge this appeal to be devoid of merit and it is accordingly dismissed by me. The judgment of the Court below, delivered on the 17th of November, 2014 is hereby affirmed.
I make no order as to costs.
Appeal Dismissed.
OLUKAYODE ARIWOOLA, J.S.C.: I had the opportunity of reading in draft the lead JUDGMENT of my learned brother, Abdu Aboki, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead judgment that the appeal lacks merit and deserves to be dismissed. Accordingly, it is dismissed by me.
Appeal dismissed.
JOHN INYANG OKORO, J.S.C.: I had the privilege of reading before now a draft copy of the judgment just delivered by my learned brother, Abdu Aboki, JSC and I am in full agreement with the reasons and conclusion adumbrated therein.
The position of the law is trite that it is only a legal person that can sue and be sued. Where a suit is commenced be a person whose legal personality has not been established, the effect is that there is no plaintiff and the action is not instituted by a person known to law. Indeed in the case of Ataguba & Co. v. Gura (Nig) Ltd (2005) 8 NWLR (pt. 927) 429 page 445, this Court per Edozie, JSC succinctly stated the position of the law as follows:-
“As a general principle, only persons, that is human beings and juristic or artificial persons such as body corporate are competent to sue or be sued. Consequently, where either of the parties is not a legal person the action is liable to be struck out as being incompetent…
The law, however recognizes that apart from natural and juristic persons, some non-legal entities can sue and be sued eo nomine. Thus, it has been held that no action can be brought by or against any party other than a natural person or persons unless such a party has been given by statute, expressly or impliedly or by the common law, either … (a) A legal persona under the name by which it sues or is sued e.g. corporate sole and aggregate, bodies incorporated by foreign law and “quasi-corporation” constituted by Act of Parliament; or (b) A right to sue or be sued by that name e.g. partnership, trade unions, friendly societies and foreign institutions authorized by their own law to sue and be sued but not incorporated. See Fawehinmi v N.B.A. (No2) (1989) 2 NWLR (pt.105) 558.”
It follows therefore that a plaintiff whose legal personality is challenged has the onus to establish the status of the name by which it sues.
In the instant case, there is no doubt that the Appellants are natural persons and as such have the capacity to sue and be sued. However, the name “Andoni Chiefs’ council” is not a juristic person. It has no legal capacity to sue and by virtue of Section 11 Cap 25, Laws of Rivers State 1978, extensively reproduced in the leading judgment, Andoni Chiefs’ Council cannot co-opt or appoint other persons to sue on its behalf, itself not being recognized by the law.
The Court below was therefore right to have struck out the case commenced in the first place without jurisdiction.
For the above and fuller reasons contained in the leading judgment, I also find no merit in this appeal. It is hereby dismissed by me. I affirm the judgment of the Court below delivered on 17th November, 2014.
Appeal Dismissed.
HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read the copious and erudite reasons given by my learned brother ABDU ABOKI, JSC in the lead judgment just delivered. I agree with the reasoning and conclusion that this appeal is devoid of merit.
This is an appeal against the judgment of the Court of Appeal Port Harcourt Division delivered on 17th November, 2014 Coram: Mohammed Lawal Garba, Modupe Fasanmi, Stephen Jonah Adah (JJCA) which affirmed the decision of the High Court of Rivers State, delivered on 20th June, 2011 by Hon. Justice B. A. Georgewill, The Appellants were Plaintiffs at the trial Court in Suit No. PHC/2060/2005. In 1996 Andoni Local Government was created by the Federal Government, after which two Councils of Chiefs emerged and operated separately within the same Local Government Area causing confusion and crisis within the rank of Chiefs in Andoni.
For better understanding of this appeal there is need recapture herein the essence of the case made by both parties at the two Courts below; The Appellants herein were the Plaintiffs at the trial Court who sought the following reliefs:-
1. A declaration that by the Omagwa Peace Accord as contained in a document titled Communique released during the Obolo National Retreat for Andoni Chiefs held at the International Airport Hotel Omagwa, Port Harcourt from 10th -13th November 2004 and subsequent agreements reached at the meeting of the Andoni Chiefs Council on the 18th November, 2004, the apex ruling Chieftaincy Body or Council in Andoni Local Government Area of Rivers State in the Andoni Chiefs Council.
2. A declaration that the so called Andoni Traditional Rulers Council is not only but also extinct by virtue of peace accord reached at the Omagwa retreat held for the Andoni Chiefs from the 10th -13th November 2004 at the International Airport Hotel Omagwa, Port Harcourt and the subsequent agreements reached at the meeting of the Andoni Chiefs Council held at Delta Hotels, Port Harcourt on the 18/11/2004 and Ngo Town, Andoni Local Government Area on 30/12/2004.
3. An Order of this Court directing or compelling the 1st, 2nd, 3rd, 4th Defendants to comply with the decisions of the Andoni Chiefs Council contained in communiqué released during the Obolo National Retreat for Andoni Chiefs held at the International Airport Hotel Omagwa, Port Harcourt from 10th – 13th November 2004 and subsequent agreements reached at the meeting of the Andoni Chiefs Council on the 18/11/2004 at the Delta Hotels, Port Harcourt and the inaugural genera/ meeting of Andoni Chiefs Council at Ngo Town, Andoni LGA on 30/12/2004.
4. An Order directing or compelling 1st, 2nd, 3rd, 4th Defendants to account for and transfer all monies accruing to the Andoni Chiefs Council vide 5% Local Government Allocation from November 2004 till date. Which the 1st, 2nd, 3rd and 4th Defendants have had and received through Account. No. 1163800001132 still being kept, maintained, and operated by the 1st, 2nd, 3rd and 4th Defendants in Trade Bank Plc situate at No. 14 Azikiwe Road, Port Harcourt in the names of Andoni Traditional Rulers Council or any other name for management and disbursement to all Andoni Chiefs in line with the formula agreed upon by consensus in the following manner:
i) Rivers State Traditional Ruler Council (deducted at service) – 5%
ii) President of Andoni Chiefs Council i.e. the 1st Defendant – 45%.
iii) Andoni Chiefs Council – 50%.
5. An Order of this Court compelling the 1st – 4th Defendants to comply with the decisions reached at Omagwa Peace Retreat as contained in a communique released during the Obolo National Retreat for Andoni Chiefs held at the International Airport Hotel, Omagwa Port Harcourt from 10th – 13th November, 2004 and the subsequent agreements reached at the meeting of the Andoni Chiefs Council on the 30/12/2004 by dissolving the former factional Council called Andoni Traditional Rulers Council.
6. An Order of perpetual injunction restraining the Rivers State Council of Traditional Rulers from transferring or remitting any money or cheque in respect of the 5% Local Government allocation accruing to Andoni Chiefs to the 1st Defendant or any other Chief in Andoni LGA or the Andoni Traditional Rulers Council or any other Chieftaincy Council established by the 1st to 4th Defendants in Andoni Local Government Area.
7. An order directing or compelling the 5th Defendant to pay all monies accruing to Andoni Chiefs Council from the 5% Local Government Allocation to Andoni Council of Traditional Rulers or the 1st to 4th Defendants on record personally from the 5% Local Government Allocation fund to Andoni Chiefs Council for management and disbursement to all Traditionally recognized Chiefs in Andoni LGA as contained in the communique released at the Omagwa Peace Retreat held between 10th – 13th of November, 2004 and the subsequent agreements reached at the meeting of the Andoni Chiefs Council on the 18/11/2004 at the Delta Hotels, Port Harcourt and the inaugural meeting of Andoni Chiefs Council at Ngo Town, Andoni LGA on the 30/12/2004.
8. An order of perpetual injunction restraining the 6th Defendant or its agents, privies or servants from paying any money arising from the 5% allocation from the Rivers State Government or the 5th Defendant to the 1st – 4th Defendants of any of their agents, privies or servants or proxies vide Account No. 1163800061132 or any other account opened by the 1st, 2nd, 3rd and 4th Defendants in the 6th Defendant or any other Bank in Rivers State.
9. An order of perpetual injunction restraining the 1st – 4th Defendants from circulating any information intended to call for any meeting of the so called Andoni Traditional Rulers Council or in the name of any other Chieftaincy Institution in Ngo Town or any other Town or Community in Andoni LGA of Rivers of Rivers State or installing and or coronating any Chief in Andoni LGA under the aegis of the Andoni Traditional Rulers Council or any other Chieftaincy name.
In response, the 1st – 4th Defendants in their Joint Consequential Amended Statement of Defence and Counter Claim filed on 11/5/2010 counter claimed against the Claimants as follows:-
1. A declaration that the persistent manipulative interference by the Claimants under the umbrella of an association called Andoni Council of Chiefs or Andoni Chiefs Council in the management and all matters relating to the statutory allocation to the Defendants of the 5% of all revenues accruable to the Andoni Local Government Council is a violation of the fundamental rights of the Defendants’ freedom of access to the fund.
2. An order of perpetual injunction restraining The Claimants whether by themselves, agents or privies and collaborators howsoever from further interfering in all matters relating to or affecting the management, sharing or application of the Defendants’ statutory allocation of 5% of all revenues accruing to the Andoni Local Government Council.
3. An order directing the Claimants jointly and severally to pay to the Defendants the sum of N200,000,000.00 only as specific and general damages.
The 5th Defendant also filed its Statement of Defence.
The trial Court held that the act of the 1st Defendant of not protesting the Omagwa agreement and the subsequent sharing formula agreed upon and even forwarding a photocopy of the 5% cheque to the 1st Claimant and endorsing Exhibit M and T etc shows the 1st Defendant, President of the Andoni Chief Council as one who consciously and voluntarily subscribed to and accepted the agreements and decisions of the Omagwa Retreat. Therefore the argument that the Defendants were deceived into signing the documents has no basis. Exhibit “L” showing the disbursement formula agreed by the President and Executive of the Council which is a very crucial document in the resolution having been signed by the Chairman and the Secretary of the Council is valid and can be relied on by the Court since there is no requirement for signing in the Constitution or Rules of the Andoni Chiefs Council. The trial Court held that subsequent meetings and actions thereafter were taken by the Claimants and the 1st – 4th Defendants to implement the decision and agreements reached at the Omagwa meeting.
On the provision of the Rivers State Chieftaincy Edict 1978, which provides for a minimum of nine recognized Chiefs in each Local Government or the option of co- opting other indigenous Chiefs that are representing the Area into the Council of Chiefs where the recognized Chiefs are not up to nine in order to make up for nine Chiefs, the Court held that from Exhibit “A” and “B”, the 1st Defendant is the only Chief recognised by the Local Government in Andoni and by agreeing to the formation of the Andoni Chiefs Council of which he was appointed the President he had exercised his right of co- option.
The Court further held that it was the agreement to the formation of the Andoni Chiefs Council that led to the Claimant’s withdrawal of their appeal against the judgment in Exhibit “C”. The trial Court also held that the judgment in FHC/1783/2003 is on completely different set of facts and circumstances from those in the instant suit and is therefore distinguishable from those in the instant case based on the pleadings, facts and evidence in the instant suit. The trial Court upheld Appellants’ claims and dismissed the 1st – 4th Respondents’ counter claim. The Court upheld that the claims of the claimant succeeds and dismissed the 1st to the 4th Defendant’s counter claim. The present 1st – 4th Respondents appealed to the Court of Appeal vide notice filed on 15th July, 2011.
The issues formulated at the Court of appeal are as follows:-
1. Whether the Andoni Chief’s Council is a legal person with capacity to sue or be sued.
2. Whether the Court was right that there was a binding agreement reached at the Omagwa Retreat.
3. Whether the High Court was right that subsequent steps were taken by the Appellants and the 1st-4th Respondent to implement the contents of Exhibit “P”.
4. Whether the Andoni People can reach agreement and reach decisions contrary to law.
5. Whether the 1st – 4th Respondents were entitled to judgment.
The Court below held that although, the Appellants herein argued that the Andoni Chiefs Council in the Andoni Local Government Area is a creation of Cap 25 and insisted that the Omagwa Retreat and Communique did not specify the name in which the Council of Chiefs was to be called, the Appellants herein is not a juristic person. The Council of Chiefs for a Local Government Area in its minimum and maximum number should be nine as provided in Section 11(2) and it is different from Section 11(1) which provides that the recognized Chiefs in the Local Government may be more than nine. The Andoni Chiefs Council which is made up of all the Chiefs about 120 of them cannot be said to be a creation or creature established in compliance with provisions of Cap 25. The procedure for co-option in Section 25 was not duly followed. The Appellants’ herein claims and actions were purely and solely a representative one which an individual could sustain in a representative capacity. The Court below held that the claim were made on behalf of the Andoni Chiefs Council.
The Court below also held that the suit or action cannot be saved by the mere presence of the individual names of the 1st – 4th Respondent on the writ or the pleadings. The part of the council they purported to represent, for the purpose of Cap 25, the Andoni Chiefs Council is not in existence and cannot appoint any other person, natural or artificial to sue on its behalf.
On Issue 2, the Court agreed that although there was a binding agreement between the Andoni Chiefs’ Council, the agreement cannot be enforceable by the 1st- 4th Appellants as a body of Andoni Chiefs’ Council, a body that lacks the juristic persona to sue or be sued. Also, the Court held that it will not interfere with the decision of the trial Court as to the findings of fact on the steps taken by the 1st – 4th Respondents or the 1st- 4th Appellants to implement the contents of Exhibit “P”. The Court went further to hold that Andoni People cannot reach an agreement or decisions contrary to any extant laws of Rivers State. However, Exhibit “P” relates to the decision taken by the 1st Respondent herein in this case and not by the Andoni people as regards the 5% Local Government Allocation fund to Andoni Chiefs Council for management and maintenance of the traditional institutions in the Local Government. The Appeal was dismissed although other issues were resolved in favour of the Appellants herein. The Court held that the judgment of the High Court be set aside on the resolution of issue 1 to the effect that the High Court lacked requisite jurisdiction since the Appellants herein are not corporately is not a juristic personality.
At the Supreme Court an amended Notice of Appeal was filed by the 1st-4th Appellant on 25th February, 2015 with seven grounds of appeal.
In the lead judgment by my learned brother, the issues identified by the 1st – 4th Respondents were adopted for the determination of the appeal. I will also adopt the same issues:
1. Whether the Court of Appeal had jurisdiction to entertain the 1st – 4th Respondents’ appeal brought by Notice of Appeal dated and filed on 15th July, 2011?
2. Whether the Court of Appeal committed any error in law when it struck out the Preliminary Objection filed by the Appellants against Ground 1 of the 1st – 4th Respondents’ Notice of Appeal dated and filed on 15th July, 2011?
3. Whether the Court of Appeal committed any error in law when it held that the Appellants’ suit before the High Court was incompetent, and thereupon proceeded to strike out the suit?
On the question of the Notices of Appeal and whether there is a valid Notice of Appeal from the 1st – 4th Respondents before the Court of Appeal, we must look at the facts. The judgment of the High Court was delivered on the 20th day of June, 2011. The 1st – 4th Respondents filed their first Notice of Appeal at the Court of Appeal on the 21st day of June, 2011, within the ninety days stipulated in Section 24 of the Court of Appeal Act. The said appeal was withdrawn by the Notice of Withdrawal of Appeal filed by the 1st – 4th Respondents on the 15th day of July, 2011. The 1st – 4th Appellant filed their second Notice of Appeal on 15th July, 2011, also within the time stipulated by the Court of Appeal Act for appealing against the judgment of the High Court. Since the two Notices of Appeal were filed within the time provided by the rules, they are valid notwithstanding the withdrawal of one of them which does not affect the validity of the 2nd notice. See ALH. UMARU ABBA TUKUR v. GOVERNOR OF GONGOLA STATE (1988) 1 SCNJ 54, (1988) 1 NWLR Pt. 68 Pg. 39; YAKI v. BAGUDU (2015) 18 NWLR Pg.1491 Pg.288. In essence, it is not improper to file more than one Notice of Appeal so long as issues are distilled frame only one notice of appeal.
The other issue raised is the significance of the preliminary objection raised by the Appellant at the Court below where the Appellant had objected only to ground 1 of the 1st – 4th Respondents’ ground of appeal. I agree that where the notice of preliminary objection is not targeted against a fundamental defect in an appeal which renders the appeal wholly incompetent and liable to be terminated in limine, then such a preliminary objection is incompetent and liable to be struck out. The proper procedure to effect a Respondents complaint about the incompetence of a ground of appeal or a process is to file a motion on notice to have it struck out. See:ODUNUKUWE v OFOMATA (2010) LPELR 2250 SC, NNPC v FAMFA OIL LTD (2012) 5-7 SC (Pt.1) Pg.1 at Pg.29.
The complaint by the Appellant regarding the failure of the Court below to call for their opinion before taking a decision on an issue raised suo motu is in my view not valid. The preliminary objection raised by the respondents was found incompetent and struck out. No doubt, where a preliminary objection already argued is found incompetent, there is no need for an extra address of Counsel before the Court can decide that it has no jurisdiction to determine it and to strike it out.
On the issue of whether the Appellants’ (Original Plaintiffs) suit was properly constituted, the Court of Appeal decided in favour of the present Respondents because the 1st – 4th Appellants’ suit was not properly constituted as to parties and was found incompetent. Even though the lead judgment at the Court of Appeal saw merit in the Appellants’ claims, the claim was struck out for being improperly constituted. The quarrel between the parties is whether or not the Apex ruling chieftaincy body or Council in Andoni Local Government is Andoni Chiefs Council or the Andoni Traditional Rulers Council, Andoni LGA.
Thus the real controversy is whether Andoni Chiefs Council in Andoni Local Government who instituted the suit have a corporate juristic capacity to sue or be sued even though each of the members had individual capacity so to do.
The answer to this dilemma rests on the interpretation of Section 11 of the Chiefs Law of Rivers State Caps 25. By the Law, the Governor is entitled by instrument to recognize a Chief occupying the Chieftaincy stool of a town or community. There is a Council of Chiefs in each Local Government Area which must be recognized by the Governor in compliance with Section 11 (1) & (2) of Chiefs Law. It is only the 1st Appellant in this case that is a recognized Chief pursuant to Section 11 of the Chiefs Law. The Andoni Chiefs Council in the circumstances of this case is not composed pursuant to Section 11 of the Chief Law and cannot be vested with juristic personality expressly or impliedly and more importantly, the valid Andoni Chiefs Council cannot appoint any other persons to sue on its behalf.
The consequence of the above is that in the instant appeal, the general statement of the law holds good in that for a Plaintiff’s suit to be properly constituted, so as to vest jurisdiction on the trial Court, the Plaintiffs must have the capacity and legal competence to initiate it. The lack of juristic personality of the Appellants (as Plaintiffs) as an entity to file this action ab initio affected adversely the jurisdiction of the trial Court to entertain their claim. I agree that the appeal be dismissed. I abide by the order as to costs.
Appeal Dismissed.
TIJJANI ABUBAKAR, J.S.C.: My lord and learned brother, ABOKI, JSC granted me a preview of the leading Judgment prepared and rendered in this appeal, I am in full agreement with the reasoning and conclusion and therefore adopt the Judgment as mine I have nothing extra to add. I abide by all consequential orders including the order on costs.
Appearances:
Chief Sebastian T. Hon, SAN, FCIArb, with him, Chief Friday Eneawaji, Esq., Evelyn N. Agoh, Esq., Daniel A. Ane, Esq., Aisha Zira Bello, Esq. and David T. Agashua, Esq. For Appellant(s)
O.C.J Okocha, SAN, with him, His Highness, E.E. Ada-Okworoso, Esq. – fore 1st – 4th Respondents
Lawrence S. Oko-Jaja, Esq., with him, Lois Oko-Jaja, Esq. – for 5th Respondent For Respondent(s)
