H.R.H EZE ALOYSIUS & ANOR v. NZE J.C. OKIKE & ANOR
(2018)LCN/12288(CA)
In The Court of Appeal of Nigeria
On Monday, the 17th day of December, 2018
CA/OW/249/2014
RATIO
COURT AND PROCEDURE: CAUSE OF ACTION
“Of course, where there is no vested right, there is no valid cause of action. See Adesanoye & Ors Vs Adewole & Ors (2006) LPELR 143 SC; NDP Vs INEC (2012) LPELR 19722 (SC). Explaining the meaning of cause of action, Ogundare JSC in the case of A.G. Federation Vs A.G. Abia State & Ors (2001) LPELR 24862 (SC) said: ‘It is trite that what constitutes a cause of action is the entire set of circumstances giving rise to an enforceable claim. See Savage Vs Uwechia (1972) 3 SC 214, 221. Lord Esther in Road Vs Brown (1888) 22 QBD 128 defined cause of action as meaning every fact that it would be necessary for the Plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It also includes all those things necessary to give a right of action. (See Emiator Vs Nigerian Army & Ors (1999) 12 NWLR 362.'” PER PER ITA GEORGE MBABBA, J.C.A.
COURT AND PROCEDURE: REPRESENTATIVE ACTION
“Also a representative action is seen and considered as an action brought by the body of persons represented, rather than the named plaintiff only. See Ojo Vs Akinyemi (2013) LPELR 22139 CA; Ladejobi Vs Oguntayo (2004) 18 NWLR (Pt. 904) 135.” PER ITA GEORGE MBABBA, J.C.A.
JUSTICES
THERESA NGOLIKA ORJI-ABADUA Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria.
Between
1. H.R.H EZE ALOYSIUS
2. SIR. BENSON ALEME Appellant(s)
AND
1. NZE J. C. OKIKE
2. ATTORNEY GENERAL OF IMO STATE Respondent(s)
ITA GEORGE MBABBA, J.C.A.(Delivering the Leading Judgment):
This appeal is against the judgment of Imo State High Court in Suit No. HOU/14/2004, delivered on 18/2/2014 by Hon. Justice K.A. Ojiako, wherein the Learned Trial Judge granted some of the reliefs sought by the Plaintiffs and refused some.
At the trial Court the Plaintiffs had sought the following reliefs, as per their Further Amended Statement of Claim:
(a) A declaration that Imeoha Village, Mgbidi is and has been the Head Village in Mgbidi from time immemorial.
(b) A declaration that the traditional Ruler of Mgbidi has been (sic) always come from Imeoha Village.
(c) A declaration that old Mgbidi Autonomous Community comprises of (sic) 11 Villages in order of seniority, namly: (i) Imeoha, (ii) Ihite (iii) Uzinumu (iv) Umorji (v) Okwudor (vi) Ugbele (vii) Umuabiahu (viii) Umuehi (xi) Eziali (x) Umuokpara (xi) Umuaguma.
(d) A declaration that being the Head Village, Imeoha Mgbidi is entitled to retain the name Mgbidi, upon the creation of autonomous communities of out Mgbidi.
(e) An Order of Court enjoining the Plaintiffs to retain the name Mgbidi for what is now known as Isi Mgbidi Community.
(f) An Order of Court restraining the 2nd and 3rd Defendants from answering Mgbidi Autonomous Community, which they are not entitled to.
(g) An Order of Court enjoining the 2nd and 3rd Defendants to pick any other name other than Mgbidi.
(h) A declaration that Ogbuehi Odu Royal Dynasty is the Paramount Dynasty in Mgbidi with Hereditary Stool and Rights of succession from time immemorial.
(i) A declaration that Dr. Pius A.C. Agwaramgbo, having been duly selected and identified according to the tradition and Custom of Mgbidi and presented for Recognition, is entitled to be so recognized as the Traditional Ruler and Successor to late Eze G.N. Udeozor, Ogbuehi Odu VI of Mgbidi.
(j) An Order of Court restraining the Defendants, their agents, privies, assigns and departments from exercising (sic) any part of Imeoha Village from Mgbidi Autonomous Community in the exercise for creation of New Autonomous Communities.
(k) An Order of Court restraining the Defendants, their agents, privies, assigns and departments from appending the words ‘New Mgbidi’ or ‘Isi Mgbidi’ to any of the newly created autonomous communities.
(l) An Order of Court renaming Isi Mgbidi as Mgbidi simplicitor comprising of (sic) the three Villages of Imeoha, Umorji and Ugbhele.
(m) An Order of Court perpetually restraining the 2nd Defendant from addressing himself or being addressed or parading himself as Eze Udo I of Mgbidi.? (Pages 16 – 17 of the Records of Appeal).
After the hearing and consideration of the evidence and addresses of Counsel, the trial Court held:
“From the admitted facts of this case, Imeoha Villages (sic) is the most senior and head Village of all the Village in the original Mgbidi Autonomous Community. Secondly, the traditional ruler of the original Mgbidi Autonomous Community since its recognition as an autonomous community by government of Imo State is from Imeoha. In the light of all I have said, above, I am of the humble but well considered view that Mgbidi autonomous community, still being extant, if there is any of the new communities that should be ascribed with the name, it is Imeoha Village, the most senior and head Village. It is only logical and equitable. Again by the provision of Section 167 of the Evidence Act 2011, the Courts are permitted to presume the existence of certain facts, which if (sic) thinks likely to happen regard being had to the common cause of natural events and human conduct? I rely on the case of Ogbuanyinya Vs Okudo (2) (1990) 4 NWLR (Pt.146) at 581”
In the absence of any agreement to the contrary, as parties have not proved any such agreement in this case, I find as a fact that Imeoha Village, as the most senior and head Village is entitled to the ascription of Mgbidi Autonomous Community as against the Umuorji and Ugbele Villages of 2nd ? 3rd Defendants, who are the 4th and 6th, respectively, in the agreed seniority list of villages. I shall in the light my finding of facts consider the grantability of the reliefs sought. This is because the manner in which same (sic) of the reliefs are couched or framed create problem for the claimants as some cannot possibly be granted in the form which they are.
On Reliefs A and C the facts constituting the reliefs were admitted. They ought to be granted.
With respect to relief B, in the light of the creation of new autonomous communities, this relief becomes inappropriate and again non-sequtor.
Relief D, in the light of my findings, ought to be granted. Relief E seeks an Order enjoining the claimants to retain the name Mgbidi for what is now known as Isi Mgbidi autonomous community. Much as I have found as a fact that the Imeoha Village constituting Isi-Mgbidi autonomous community is entitled to retain the name Mgbidi, I cannot make any Order enjoining them to retain the name. It is a function of the executive arm of government, to change names of autonomous communities and not of the Courts. The Claimants may make necessary applications to the appropriate authority in this regard and in line with the findings of fact made.
On Relief F, based on my findings of facts, succeed and ought to be granted.
On Relief G, in view of my findings of facts that the ascription of the name Mgbidi autonomous community by 2nd and 3rd Defendants respective village is illegal, I cannot enjoin them to pick any other name other than Mgbidi. Again, it is not a judicial function to so enjoin them.
Reliefs H and I cannot be granted as it is so inappropriate to declare, in view of the creation of new autonomous communities out of original Mgbidi autonomous community. Again, in my view, these reliefs are premature and can only be considered when claimants Isi-Mgbidi autonomous community is renamed Mgbidi autonomous community.
Reliefs J, K and P are vague and not grantable.
Relief M, in the light of my findings of facts, succeeds. It seems more compelling to grant same, in view of the fact that he was not even presented as the traditional (sic) of Mgbidi autonomous community, by my findings.
Finally, this action succeeds in part and I hereby make the following declarations and orders:
(1) It is hereby declared that Imeoha Village Mgbidi is and has been the head village in Mgbidi from time immemorial.
(2) It is hereby declared that the old Mgbidi Autonomous Community comprises 11 Villages in order of seniority as follows: (1) Imeoha, (2) Ihite (3) Uzinumu (4) Umorji (5) Okwudor (6) Ugbele (7) Umuabiahu (8) Umuehi (9) Eziali (10) Umuokpara (11) Umuaguma.
(3) It is declared that being the head village Imeoha Mgbidi is entitled to the retention ascription of the name Mgbidi upon the creation of autonomous communities out of Mgbidi.
(4) The 2nd and 3rd Defendants are hereby restrained from answering Mgbidi autonomous community which they are not entitled to.
(5) The 2nd defendant is hereby restrained from addressing himself or being addressed or parading himself as the Eze Udo I of Mgbidi.
(6) Reliefs B, E, G, H, I, J, K and L are hereby refused.
I make no order as to cost. (See pages 344 – 347 of the Records)
That is the decision Appellants (who were 2nd and 3rd Defendants) appealed against, as per their amended Notice of Appeal, filed on 27/10/2017, which disclosed 11 grounds of appeal. Appellants filed their Brief of argument on 27/10/17, with the leave of this Court, granted on 23/10/17. They also filed a Reply Brief on 5/6/18, which was deemed duly filed on 13/6/18. Appellants donated four Issues for the determination of the appeal, as follows:
(1) Whether in the light of the provisions of Section 294(1) and (3) of the Constitution of the Federal Republic of Nigeria (as amended), the decision of the trial Court, delivered more than 90 days after conclusion of evidence and final addresses, without any reason whatsoever, was not unconstitutional and a nullity as same has occasioned a miscarriage of justice. (Ground 2).
(2) Whether the Suit was properly constituted to confer jurisdiction on the trial Court at the time it embarked on the hearing in the case. (Ground 11)
(3) Whether considering the evidence led by the 1st – 4th Respondents, the decision of the trial Court “if there is any of the new autonomous communities that should be ascribed with the name (i.e. Mgbidi Autonomous Community it is Imeoha Village, the most senior and head village” is not wrong and perverse. (Grounds 1, 3, 4, 6, 7 and 10)
(4) Whether the trial Court was not wrong in its decision on the application made for Obi Mgbidi Autonomous Community (Grounds 8 and 9).
Appellants did not raise any issue on the ground 5 of the Appeal (which, shorn the particulars, stated that the learned trial Judge erred in law in departing from the case of the Claimants and delved into the application of the 2nd and 3rd Defendants for creation of Autonomous Community.’) The said ground five of the appeal is hereby struck out for being abandoned.
The 1st Respondent (survivor of the Plaintiffs) filed brief on 26/2/18. He donated two Issues for the determination of the appeal, as follows:
(1) Whether, having regards to the two main issues formulated by the trial Judge, the evidence before him and the law applicable, the reasoning, evaluation of evidence and findings of fact based thereon, the judgment of the Court was right and ought not to be disturbed/upturned by the Court of Appeal (Amended grounds 1, 3, 4, 5, 6, 7, 8, 9, 10 and 11).
(2) Whether the Appellants can/have established that the judgment on appeal amounts to a miscarriage of justice or that they suffered any injury or damage as a result. See Federal Capital Dev. Authority Vs Nwanna (1998) NWLR (Pt. 544) at 78 (Amended Ground 2).
Arguing the Appeal on 21/11/2018, Appellants’ Counsel, Chukwuemeka Okoro Esq., on Issues one and three (which he argued, together) said because the judgment was delivered after 90 days of the final address of Counsel, the same had occasioned miscarriage of justice and flouted the Constitution of Nigeria. He relied Section 294(1) and (3) of the 1999 Constitution, and on the case of CPC Vs Yuguda (2012) ALL FWLR (Pt.651) 1466 at 1470 – 71.
Counsel said that the kernel of the issue in the Suit was the name ‘Mgbidi Autonomous Community’; that 1st to 4th Respondents (as Plaintiffs) had claimed that their Imeoha Village was entitled to be ascribed and to retain the name ‘Mgbidi Autonomous Community’, based on the assertions of the Mgbidi Steering Committee, which midwifed the splitting of Mgbidi into six autonomous communities; they said that the Steering Committee had agreed that each new autonomous community should have ‘Mgbidi’ as a suffix in its name, where upon Imeoha Village was to be constituted into ‘ISI-MGBIDI’ Autonomous Community; but that in the event of the State Authorities disagreeing with the arrangement, and insisting that a community must maintain Mgbidi identity, the Imeoha Village, as a number one village in Mgbidi will automatically drop Isi-Mgbidi to answer Mgbidi.
Counsel said that the above claim, and position of the 1st to 4th Respondents, were challenged and denied by Appellants, who insisted that 1st to 4th Respondents were not members of the Mgbidi Steering Committee.
He added that the Mgbidi Steering Committee had recommended that the autonomous community to which Umuorji Village belonged, which harboured the secretariat and other institutions of Government of Mgbidi, should retain the name Mgbidi, simpliciter, as an autonomous community, because of the already existing records.
Counsel observed that, because Appellants filed no counter claim in the case, the burden of proof lied squarely on the 1st to 4th Respondents to establish their claims and assertions namely:
(1) That their Imeoha village was entitled to be ascribed the name ?Mgbidi? as the most senior or number one village in Mgbidi.
(2) That Ogbuehi Odu had produced traditional rulers of Mgbidi, uninterrupted and
(3) That Mgbidi Steering Committee agreed and resolved that in the event of the State authorities insisting that a community must maintain Mgbidi identity and name, Imeoha Village will automatically drop Isi Mgbidi and answer Mgbidi!
He added that to discharge the above burden, 1st to 4th Respondents needed to rely on the strength of their own case, not on the weakness of the defence. Counsel called our attention to the evidence of PW2, who, under cross examination, as to the village entitled to be ascribed the name Isi Mgbidi said ‘It is Imeoha Village’; and with respect to Ogbuehi Odu producing traditional rulers of Mgbidi, uninterruptedly, the same PW2 said (under cross examination) that one Dike Adi of Abiahu stock in Mgbidi and not from Imeoha Village, had ruled Mgbidi and died in 1936, before Ozuroke Odujieze, alleged by 1st to 4th Respondents. See pages 110 to 111 of the Records of Appeal. Counsel said those pieces of evidence by PW2 were at variance with the claims and assertions of the claimants/Respondents, and rather supported the position of the Appellants. He relied on the case of National Invest. & Properties Co. Vs Thompson Organisation (1960) NMLR 99 at 104 and on Section 23 of the Evidence Act, 2011.
Counsel said the Plaintiffs failed to prove that they were members of the Steering Committee, in the light of the contradiction in the evidence of PW1 and PW2, on membership of the Committee; that they also failed to produce evidence of the proceedings, agreement and resolutions of the said committee, which they said was documented, to support their claim. Counsel urged us to invoke Section 167(d) of the Evidence Act, 2011, to presume that the withheld evidence would have been against the Plaintiffs (1st Respondents). He also relied on Nig. Advert. Surv. Ltd Vs UBA Plc (2005) ALL FWLR (Pt. 254) 275.
Counsel said the trial Court was therefore wrong to hold for Plaintiffs, in the circumstances; that instead of saying that the Plaintiffs had not proved their claims, the trial Court said:parties have not proved any such agreement as if both parties had joint burden to prove the assertions of the Plaintiffs, who filed the Suit! The law, he said, remains that he who alleges must prove. Archibong Vs Ita (2004) ALL FWLR (Pt.197) 930.
Counsel urged us to rely on the evidence of DW2, who was a member of the Mgbidi Steering Committee, as to the decision that the autonomous community which Umuorji Village would constitute should retain the name ‘Mgbidi’ being the village that harboured the Secretariat of the Oru West Local Government, to avoid any possible adverse legal or political implication of altering or obliterating the name ‘Mgbidi’, as a town or community on existing record. Counsel also relied on Exhibits K, L, and O to support the fact that the headquarters or secretariat of Oru West Local Government, situates in the land of Umuorji Village of Mgbidi. He said that the Respondents had prevaricated on the issue of where the secretariat situates; that, under cross examination, PW1 said:
“Mgbidi comprises 11 Villages. Any place that falls out of the said 11 Villages cannot be Mgbidi.”
But that, ironically, the same PW1 said again:
“The secretariat of Oru West Local Government is not situated in any particular village.”
Counsel said that the adverse effect of the above evidence on the case of 1st to 4th Respondents could have been fully appreciated by the Lower Court, had the facts and evidence been very fresh in the mind of the trial Judge, at the time of the delivery of the judgment; that the late delivery of the judgment on 18/2/2014, after final addresses on 7/10/2013, had resulted in the trial Court’s loss of perception, appreciation and proper evaluation of the evidence before it, occasioning serious miscarriage of justice.
Counsel urged us to resolve the Issues 1 and 3 for Appellants.
On Issue 2, Counsel said the Suit was not properly constituted at the time the trial Court embarked on the hearing and determination of the Suit; Counsel said that the Plaintiffs had sued on behalf of Mgbidi Autonomous community; that Appellants applied to join the Suit, as co-defendants (along with the Attorney General of Imo State). Thus, Counsel said, at the time of hearing the Suit both the Claimants(1st to 4th Respondents) and the Appellants, were representing the same Mgbidi Autonomous Community in the Suit. That means, the same Mgbidi Autonomous Community constituted both the Plaintiffs and Defendants in the Suit; that that was not proper, and so the case was improperly constituted. He relied on the case of Okeahialam Vs Nwamara (2003) FWLR (Pt.176) 633; Madukolu Vs Nkemdilim (1962) ALL NLR 581.
On Issue 4, Counsel said the holding of the trial Court that ‘the Governor of Imo State has no competence to suo motu alter the application for autonomy for a specified community in the absence of any amendment to that application’ was not based on any pleading or evidence of any of the parties, and was neither raised nor canvassed before the trial Court. Counsel said there was no evidence that the Governor of Imo State altered the application for autonomous community. He said such the holding was sequel to the speculation, as there was no evidence from any person from any of the villages, that made the application allegedly threatened to be altered by the Governor.
Counsel added that, even if there was such evidence of alteration (which he did not concede), that the trial Court had deviated from the question set for determination, and consequently misdirected itself from considering the issue ‘the Government of Imo State’ to ‘the Governor of Imo State.’
He said that a Court is bound by the pleadings and issues, joined therein, and cannot speculate or deviate from the case made by the parties, to make a case for a party. He relied on Kyari Vs Alkali (2001) 11 NWLR (Pt. 724) 412 at 433 – 434, among other cases.
He urged us to resolve the Issues for Appellant and allow the appeal.
Responding, Counsel for 1st Respondent Chukwuemeka Ofodile SAN (who settled the brief), on Issue one, formulated by him, said the trial Court was right when it compressed the issues in the case into 2 Issues: namely whether the reliefs A, B, C, H, I, J, K, L, and M were properly constituted and competent and whether the ascription of the name ‘Mgbidi autonomous community’ to the Villages of Umuorji and Ugbele was appropriate and or lawful.
Counsel said the Appellants did not appeal against that decision nor resiled from it; that all complaints i.e. grounds of appeal and issues must be tied to the primary findings and penultimate findings arising from these two issues and nothing more. Counsel objected to Appellants’ arguing of issues 1 and 3, together.
Counsel said the trial Judge was right in his decision, having regards to the pleadings, evidence and evaluation of same by him. He emphasized that Appellant cannot be allowed to deviate from the issues formulated by the trial Court, which it also considered in its judgment. He also referred us extensively to the findings and holding of the trial Court, and submitted that that showed a detailed and proper evaluation of evidence, legal submission etc, and making of necessary findings, leading up to a seasoned final judgment.
Counsel further submitted that Appellants had not made out a case for non-evaluation or improper evaluation of available evidence. He relied on Abisi Vs Ekwealor (1993) (Pt. 302) 643; Obodo Vs Ogba (1987) 2 NWLR (Pt. 54) 1; Woluchem Vs Gudi (1981) 5 SC 291.
Counsel added that Appellants failed to show that the decision of the trial Court was unreasonable, perverse, not supported by evidence, or resulted in a miscarriage of justice; he added that Appeal Court ought not, in the circumstances to interfere with the decision. He relied on Kodilonye Vs Odu (1935) 2 WACA 336; Yesufu Vs Adama (2010) 5 NWLR (Pt. 1188) 528.
On their Issue 2, Counsel adopted the submission earlier made under issue 1. He added that Appellants have not established that the judgment on appeal amounts to a miscarriage of justice, or that they (Appellants) suffered any injury or damage as a result. He relied on Federal Capital Dev. Authority Vs Nwanna (1998) NWLR (Pt.544) 78.
Counsel urged us to dismiss the appeal.
In his Reply brief, Appellants argued that they were right to argue issues 1 and 3 together; that the law is that where issues are similar, overlap or a necessary following-up to another formulated issues for determination, depending on the circumstances of each appeal, such issues can be merged or argued together, for the purpose of convenience, and to save time and energy. He relied on Akpan Vs Bob & Ors (2010) LPELR ? 376; (2010) 17 NWLR (Pt. 1223) 421; Waziri & Anor. Vs Geidam & Ors (2015); Anie Vs Uzorka (1993) 8 NWLR (Pt. 309) 1.
The Counsel for A.G. Imo State (2nd Respondent), B.U. Obieze Esq (CSC Imo) pitched camp with the Appellants and urged us to allow the appeal. Counsel earlier applied to withdraw the brief they filed, and the same was struck out, as Respondents was not supposed to file a brief in support of Appellants’ case. See Denca Services Ltd Vs Leo Oleka & Sons Ltd (2015) LPELR 24444 CA.
RESOLUTION OF THE ISSUES
I think the four Issues distilled by the Appellants for the determination of the Appeal can be reduced to three, as issues 3 and 4 appear to be talking about the same thing – whether the trial Court properly evaluated the evidence adduced to arrive at its decision. I shall therefore consider the Appeal on the following Issues:
(1) Whether the Suit was properly constituted and/or disclosed valid cause of action.
(2) Whether the trial Court properly evaluated the evidence adduced by the parties to reach its decision, granting reliefs, A, C, D, F, M to the Plaintiffs (1st Respondent)?
(3) Whether the judgment was a nullity because it was delivered outside the 90 days, stipulated by the 1999 Constitution and occasioned miscarriage of justice.
ISSUE ONE
Appellants’ Counsel had argued that the Appellants and the 1st Respondent at the trial Court had claimed to represent the same Mgbidi Autonomous Community in the Suit; that it is improper for a party to be both Plaintiff and Defendant in the same Suit. He relied on the case of Okeahialam & Anor. Vs Nwamara & Ors (2003) FWLR (Pt. 176) 633; (2003) LPELR 2429 SC. In that case, the Supreme Court said:
“The general rule is that the same person cannot be both a Plaintiff and a defendant in the same action. However, in my opinion, that general rule, strictly understood, is only applicable to parties actually before the Court. The distinction between the parties named in the proceedings and the persons represented in the proceedings is always present. In representative proceedings for instance, a person represented in but not a party to the proceedings cannot have the judgment in the representative proceedings enforced against him, without leave, whereas it would have been so enforceable against the defendant or defendants, actually before the Courrt. I am of the same view as the Court below that in a representative action the person who named himself as a Plaintiff suing the defendant in a representative capacity must be deemed to have excluded himself from the class represented by the representative Defendant. It defies reason to argue that a person who has sued a defendant as representing an association to which he belongs for wrongfully acting against his interest must be deemed to be represented as a defendant by the named defendant merely because he did not expressly state that he had exempted himself, just as it would have defied reason to presume that he had alleged a wrong committed by himself against himself. Be that as it may, notwithstanding the copious submissions made by Counsel for the Appellant on this issue, he did not actually address the reasons given by the Court below for coming to the conclusion that the Suit was properly constituted.” (Per Ayoola JSC)
Of course, the above case, wherein the contending parties appeared to have advanced personal or primordial interests, must be distinguished from one, where the contending parties claim to represent and advance the same corporate interest of the community they all belong and claim to represent. And what qualifies a party to take out representative action is joint and common interest. See Apeh & Ors Vs PDP & Ors (2016) LPELR 40726 SC; Durba Hotel Plc Vs Ityough (2016) LPELR 42560 SC.
Also a representative action is seen and considered as an action brought by the body of persons represented, rather than the named plaintiff only. See Ojo Vs Akinyemi (2013) LPELR 22139 CA; Ladejobi Vs Oguntayo (2004) 18 NWLR (Pt. 904) 135.
In this case at hand, the 1st to 4th Plaintiffs (now 1st Respondent) on record were suing the Attorney General of Imo State, claiming to do so (For themselves and on behalf of the Council of Chiefs, Elders and People of Mgbidi Autonomous Community).
The Appellants (as co-Defendants) had applied to be joined in the Suit as co-defendants, also (For themselves and on behalf of the Council of Chiefs, Elders and People of Mgbidi Autonomous Community) (See pages 3 – 4 of the Records of Appeal).
The Application for joinder of the Appellants was not opposed by the Plaintiffs (1st Respondents), implying the affidavit in support thereof, and the exhibits attached, were not controverted. The affidavit in support of the motion for joinder was deposed to by the 1st Appellant, herein, the Paramount Ruler of Mgbidi Autonomous Community and he had stated therein, that the Plaintiffs (1st Respondent herein) did not belong to Mgbidi Autonomous Community; that they were from Imeoha in Isi-Mgbidi Autonomous Community; that they (Appellants) were not in support of the claims of the Plaintiffs in the Suit. (See pages 5 and 6 of the Records, paragraphs 4 and 6 of the supporting affidavit. Appellants also produced a resolution in support of their said motion to join, as Exhibit B and part of the recital therein, stated:
“Whereas at the general meeting of the Council of Chiefs, Elders and People of Mgbidi Autonomous Community in Oru West LGA held on 31st day of December, 2004 information was received that there is a Suit No. HOU/14/2004 instituted by some people affecting the Mgbidi Autonomous Community. Whereas the named Plaintiffs in the said Suit are not from Mgbidi Autonomous Community and do not have prior consent of the people of Mgbidi Autonomous Community to institute the Suit.
Whereas the people of Mgbidi Autonomous Community have a common object, common interest and common grievance in the subject matter of the said Suit and are opposed to the reliefs sought in the said Suit by the Plaintiffs therein.
IT IS HEREBY unanimously resolved, this 31st day of December, 2004 as follows:
(1) That necessary steps be taken either to institute an action against the Plaintiffs in the Suit No. HOU/14/2004 or apply for joinder on the pending Suit to defend and protect the rights and interest of the people of Mgbidi Autonomous Community.
(2) That the Traditional Ruler (Eze) and the President – General (PG) are mandated to represent the people of Mgbidi Autonomous Community in this matter. (See page 8 of the Records of Appeal)
I have already said that the Appellants were joined, unopposed, to defend the Suit with the A.G. of Imo State, and so the above fundamental facts, deposed to by Appellants, which greatly challenged the capacity of the Plaintiffs (1st Respondents herein) to bring the Suit, remained unrebutted, Respondent the having impliedly admitted those averments. Of course, the law is that, any averment in an affidavit, which is not denied by the opponent is deemed admitted and should be acted upon by the Court, if it is plausible. See Oredola Okeya Trading Co. & Anor Vs Bank of Credit & Commercial International & Anor. (2014) LPELR 22011; A.G. Ondo State Vs A.G. Ekiti State (2001) 17 NWLR (Pt. 743) 706; Ugwuanyi Vs NICON Insurance Plc (2013) LPELR 20092 (SC); Yardua & Ors Vs Yandoma & Ors (2014) LPELR 24217 (SC).
Unfortunately, the trial Court appeared not to have adverted its mind to the challenge of the Plaintiffs’ capacity (locus standi) to take out the action, claiming to represent the same Mgbidi Autonomous Community, which Appellants appeared to be a more credible representatives.
Having earlier claimed to have initiated the Suit for themselves and on behalf of the Council of Chiefs, Elders and People of Mgbidi Autonomous Community, the Plaintiffs needed to have refuted and to call off the challenge by the Appellants, and produce a more credible or superior evidence or authority of their claims to represent the Council of Chiefs, Elders and people of Mgbidi Autonomous Community, instead of playing the ominous card of silence to the challenge by the Appellants.
I do not also think both Appellants (as Defendants) and the 1st Respondent (as Plaintiffs) can all validly claim to represent ‘the Council of Chiefs, Elders and People of Mgbidi Autonomous Community’, at the same time and correctly, laying claims to the issues canvassed, in opposition, as that would amount to the same person(s) being the Plaintiff(s), and defendant(s) at the same time, with opposing claims and yet deposing to pursue the same interest! That would be a case of a house divided against itself (which cannot stand – Mark 3:25). See again, the case of Okeahialam & Anor. Vs Nwamara & Ors (2003) LPELR 2429 SC and Ikonne & Ors Vs Nwachukwu & Ors (2017) LPELR 42449 (CA):
“As a general rule, it is trite that a party cannot be a Plaintiff and defendant in a Suit, simultaneously. This is because it defies reason for a party to enforce a judgment against himself. Conversely, it will be logically and legally absurd to allow a party to institute a suit against himself. Allowing the occurrence of such a scenario, would not only result in abuse of Court process but ridicule the Court process itself in the eye of ordinary men.” Per Oredola JCA.
See alsoLadoja Vs Ajimobi & Ors (2016) LPELR 40658 (SC).
It should also be seen that the reliefs sought by the Plaintiffs at the Lower Court (earlier reproduced) appear to relate to intangible issues, touching on alleged right of Imeoha Village, Mgbidi, being the most senior village or head village in Mgbidi, to be ascribed with or retain the name ?Mgbidi Autonomous Community”, in the event of the government of Imo State, creating more Autonomous Communities from the Mgbidi Autonomous Community. See reliefs (d) and (e) (f) (g) (i) (page 17 of the Records). Apart from the leaving the entire reliefs sought in the realm of speculation and abstract rights, it also suggests that what Plaintiffs (Respondents) wanted, actually touched on political decision(s), which the government had free hand and right to make, as I think, it lies completely with the Government of Imo State (Legislature and Executive) to create autonomous communities and give names to them, as required by law and socio-political exigencies. The Appellants in their arguments, gave vent to the above view, when they said:
“The Issue that arose with respect to the application for autonomous community and the approval, rejection or alteration threat, relate to Government of Imo State which includes the legislative arm (not merely the Governor). See paragraph 4.03 (1) of the Appellants? brief.”
The trial Court, had, in my view, also appreciated that it was within the powers of the government of Imo State to create Autonomous Community, when it said:
“Much as I have found as a fact that the Imeoha Village constituting Isi’Mgbidi autonomous community is entitled to retain the name Mgbidi, I cannot make any Order enjoining them to retain the name.
It is a function of the executive arm of government, to change names of autonomous communities and not of the Courts. The Claimants may make necessary applications to the appropriate authority in this regard and in line with the findings of fact made.” (See page 5 of this Judgment)
The trial Judge further held:
“By my finding above, it becomes manifest that the ascription of the Mgbidi autonomous community to Ugbele and Umuorji Villages was not in accordance with the application made by them for autonomous status. If I may say, it was unsolicited and a gratuitous act by the government. Again the evidence of the DW3 at paragraph 15 of his deposition supports this fact. I shall for clarity reproduce same:
“That I am also aware that the people of Okwudor, Umuroji and Ugbele villages, applied for Obi-Mgbidi autonomous community, but after due consideration of their application the Government of Imo State which has the prerogative to create autonomous communities in the state approved creation of Obi-Mgbidi autonomous community for Okwudor Village, while retaining Umuorji and Ugbelle Villages as Mgbidi autonomous community, as the seat of Oru West Local Government headquarters is located there.”
In view of my finding above, a pertinent question that arises is whether the government of Imo State has the competence to alter, suo motu, an application for a specified autonomous community in the absence of any amendment to such application. Both Counsel to 1st and 2nd, 3rd defendants, respectively, have stated that the government is not bound by any application for autonomous status, rather government sets the criteria. The answer to this question is not farfetched. Recourse must be had to the provisions of the law which empowers the governor to create autonomous communities at the material time. The said law has been tendered in this proceedings as Exhibit E? It is the traditional rulers and autonomous communities law of Imo State, 1999. See pages 342 to 343 of the Records of Appeal.
Though the learned trial Court later held that the Governor of Imo State had no competence to alter the application for creation of Obi-Mgbidi Autonomous Community, suo motu, without amendment for that purpose by the Applicants (a holding which conflicts with other decision of the trial Court on the matter, and I do not agree with it), it actually acknowledged that, by the Traditional Rulers and Autonomous Communities Law of 1999, the Government of Imo State reserves the power to create Autonomous Communities. Of course, it follows that, if the power resides in the government to create autonomous communities, it would not lie with the applicants for such Autonomous/new Communities to dictate to the Governor or Government as to names, composition etc of the new creations, Autonomous Communities!
I do not therefore, think the 1st Respondent (as Plaintiffs) had any vested right to claim, that Imeoha Village be named or ascribed ‘Mgbidi Autonomous Community’, in the event of the government of Imo State creating new autonomous communities out of the old Mgbidi Autonomous Community, or in the event that the government accepted that the application that new Autonomous Communities end with the surffix – Mgbidi like ‘Isi-Mgbidi’ (which Imeoha belonged), insisted that one of the new Autonomous Communities retain the name ‘Mgbidi Autonomous Community.’
Of course, where there is no vested right, there is no valid cause of action. See Adesanoye & Ors Vs Adewole & Ors (2006) LPELR 143 SC; NDP Vs INEC (2012) LPELR 19722 (SC).
Explaining the meaning of cause of action, Ogundare JSC in the case of A.G. Federation Vs A.G. Abia State & Ors (2001) LPELR 24862 (SC) said:
“It is trite that what constitutes a cause of action is the entire set of circumstances giving rise to an enforceable claim. See Savage Vs Uwechia (1972) 3 SC 214, 221. Lord Esther in Road Vs Brown (1888) 22 QBD 128 defined cause of action as meaning every fact that it would be necessary for the Plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It also includes all those things necessary to give a right of action. (See Emiator Vs Nigerian Army & Ors (1999) 12 NWLR 362.”
I think the 1st Respondent (as Plaintiffs) lacked the capacity to institute the action, and also had no vested right(s) or cause of action in the claims. Thus, the Suit was not properly constituted. I resolve the issue one for the Appellants.
On Issue 2, whether the trial Court properly evaluated the evidence adduced by the parties to reach its decision, granting reliefs A, C, D, F and M to 1st Respondent (Plaintiffs), I am quick to answer in the negative, especially considering the way I resolved the issue one above.
Even if the Suit were properly originated (which I have held in the negative), it was the duty of the Plaintiffs (1st Respondent herein) to establish the claims they made by credible evidence, and to succeed on the strength of their case. The 1st Respondent had relied heavily on the report or application of the ‘Mgbidi Steering Committee, which they said midwifed the splitting of Mgbidi into six new autonomous Communities and each having Mgbidi as a suffix in its name, whereupon Imeoha Village was to be named and constituted into Isi-Mgbidi autonomous community, but in the event of the State authorities disagreeing with the argument and insisting that a community must maintain ‘Mgbidi’ identity, that the Imeoha Village, as number one Village in Mgbidi, will automatically drop ‘Isi-Mgbidi’ to answer ‘Mgbidi.’
See paragraphs 12 to 15 of the Further Amended Statement of Claim: pages 14 – 15 of the Records of Appeal and the evidence of the Plaintiffs. But they were not forthcoming with credible evidence to support their said claim, which also appeared conflicting, having admitted that Imeoha was grouped under Isi-Mgbidi Autonomous Community.
And even if the said report of the Special Committee (Steering Committee on Mgbidi Autonomous Communities) had been produced (as stated under issue one), by 1st Respondent’s admission, the same was meant to be an appeal to the government for concession in their (Steering Committees) favour. The application of the Committee for creation of six autonomous communities was not meant to serve as an order on the government, for implementation, and so the 1st Respondent (as Plaintiffs) did not, in my view prove they had a right to those requests from government!
There was evidence, even from the Plaintiffs, that Imeoha Village was grouped under Isi-Mgbidi Autonomous Community. There was also evidence to the effect, that Ogbuehi Odu did not produce traditional rulers of Mgbidi, uninterruptedly, as one Dike Adi of Abiahu stock, in Mgbidi (not from Imeoha) had served as traditional ruler of the community and died in 1936, before Oduroke Odujieze, alleged by the Plaintiffs (1st Respondent herein).
On page 345 of the Records of Appeal, the Learned trial Court said:
“In the light of all I have said above, I am of the humble but well considered viewed (sic) that Mgbidi autonomous community still being extant, if there is any of the new communities that should be ascribed with the name, it is Imeoha Village the most senior and head village. It is only logical and equitable. Again, by the provision of Section 167 of the Evidence Act, 2011, the Courts are permitted to presume the existence of certain facts which if (sic) thinks likely to happen, regard being had to the common cause of natural events and human conducts? In the absence of any agreement to the contrary, as parties have not proved any such agreement in this case. I find as a fact that Imeoha Village as the most senior and head village is entitled to the ascription of Mgbidi Autonomous Community, as against the Umuorji and Ugbelle Villages of 2nd and 3rd Defendants.” (Underlining mind).
With utmost respect to the Learned trial Court, that was speculatory and absurd, especially, as the trial Court appeared to have acknowledged that the Plaintiffs did not proved their claims. But instead of holding the Plaintiffs to that failure, the trial Court generalized to say that the ‘parties have not proved any such agreement.’
If the parties did not prove any such agreement, what then provided the basis for the decision of the trial Court? There was nothing to base that decision other than sentiment, and speculation, which cannot found a Court decision. See Kalu Vs FRN (2012) LPELR ? 9287 CA; Ezeugo Vs Ohanyere (1978) 6 SC 171; Idirisu Vs Obafemi (2004) 11 NWLR (Pt. 884) 396. I resolve this Issue for the Appellants too.
On Issue 3, whether the judgment was a nullity for having been delivered outside the 90 days allowed by the Constitution, I do not think it is necessary to discuss this Issue again having resolved the Issue one and two for Appellants, which means that the judgment of the Lower Court cannot stand in the circumstances.
It should however be added that a judgment is not necessarily a nullity simply because it was delivered by the Court after 90 days, from the date of the final address by Counsel.
By the requirement of Section 294(1) (5) of the 1999 Constitution (as amended), the Appellant has to go further, to proved and satisfy the Appellate Court, that the failure, to deliver the judgment within the time stipulated, occasioned a miscarriage of justice to the Appellant. See the case of Akoma & Anor Vs Osenwokwu & Ors (2014) LPELR 22885 SC:
However, by Section 294(5) of the said Constitution, delay alone will not lead to setting aside the judgment, unless there is evidence of miscarriage of justice. Per Okoro JSC.
See also Akpan Vs Umoh (1999) 7 SC (Pt. 11) 13; Owoyemi Vs Adekoya (2003) 12 SC (Pt.1) 1.
On the whole, I hold that this Appeal is meritorious, having resolved the Issues 1 and 2 in favour of the Appellants. The Appeal is accordingly allowed and I set aside the decision of the Lower Court in the Suit, No. HOU/14/2004 and order dismissal of the said Suit, for being incompetent and unproved.
Parties to bear their respective costs.
THERESA NGOLIKA ORJI-ABADUA J.C.A.: I had read before now the leading judgment of this Court now delivered by my learned brother, Mbaba, J.C.A., and I strongly concur with his reasoning and conclusion that this appeal be allowed. It is evident in the pleadings of the parties that the people of the old Mgbidi Autonomous Community applied for creation of six new autonomous communities out of the old Mgbidi Town with each autonomous community having Mgbidi as a suffix or prefix. The desire was presented to the Imo State Government which, after consideration and in line with the provisions of the Traditional Rulers, Autonomous Communities and Allied Matters Law No. 3 of 1999 of Imo State, yielded to their request by creating some autonomous communities therefrom. The Plaintiffs reservations over the newly created autonomous communities were articulated in paragraphs 19, 20, 22, 23 and 24 of their Further Amended Statement of Claim. During the exercise, two communities were left out entirely and they retained the nomenclature ‘Mgbidi’.
They were to answer Mgbidi. Then detesting and being deeply distressed by the names ascribed to the new communities and merger of some therein by the Imo State Government contrary to the names submitted and their propositions, the 1st Respondent and some others subsequently commenced the action leading to this appeal before the lower Court (for themselves and on behalf of the Council of Chiefs, Elders and people of Mgbidi Autonomous Community), and, in respect of which judgment was entered in their favour by the lower Court. They sought for thirteen different reliefs which include:
(4) A declaration that being the head village, Imeoha Mgbidi is entitled to retain the name Mgbidi upon the creation of the autonomous communities out of Mgbidi;
(5) An order of Court enjoining the Plaintiffs to retain the name Mgbidi for what is now known as Isi Mgbidi community;
(6) An order of Court restraining the 2nd and 3rd Defendants from answering Mgbidi autonomous community which they are not entitled to;
(7) An order of Court enjoining the 2nd and 3rd defendants to pick any other name than Mgbidi; and
(12) An order of Court renaming Isi Mgbidi as simpliciter comprising the of three vlllage(sic) of Imeoha, Umuorji and Ugbele.
It ought to be emphasised that the act of creation of those communities out of the old Mgbidi town was executed pursuant to the provisions of the Traditional Rulers, Autonomous Communities and Allied Matters Law No. 3 of 1999, and not as a result of any judicial pronouncement or case law. It is my considered view that since the act of such creation is regulated by the said Law, the names given to each of such autonomous communities cannot by any interpretation of the law be amended by substitution or upturned by any Court of law except the Traditional Rulers, Autonomous Communities and Allied Matters Law No. 3 of 1999 of Imo State establishing or excising those new autonomous communities from the old Mgbidi Town, and, listing or ascribing those names to those various communities established thereunder, is amended by the Legislature then bestowing such powers on the Courts.
I therefore, find plausible the submissions of learned Counsel for the 2nd Respondent In this appeal. The said judgment of the lower Court, was obviously anchored on an erroneous conception of the law on creation of autonomous communities in Imo State, it is a total subversion and emasculation of the Imo State Law. The action is spurious and unsubstantiated and the pronouncement is a monumental gaffe and ought not to be allowed to stand.
Be that as it may, and, regarding whether the same person cannot be both a plaintiff and a defendant in the same action given the representative capacity on which the initial plaintiffs sued, it was held by the Supreme Court, per Ayoola, J.S.C., in Okeahialam vs. Nwamara (2003) 12 NWLR Part 835 page 597 that:
“The general rule is that the same person cannot be both a plaintiff and a defendant in the same action. However, in my opinion, that general rule, strictly understood, is only applicable to parties actually before the Court. The distinction between the parties named in the proceedings and the persons represented in the proceedings is always present. In representative proceedings, for instance, a person represented in but not a party to the proceedings cannot have the judgment in the representative proceedings enforced against him without leave, whereas it would have been so enforceable against the defendant or defendants actually before the Court. The commonsense approach adopted in the judgment of the Court below quoted above is to be preferred to a rigid adherence to a rule which is more applicable to cases in which the same person is named as a party, even if in different capacities, as both the plaintiff and the defendant. I am of the same view as the Court below that in a representative action the person who named himself as a plaintiff suing the defendant in a representative capacity must be deemed to have excluded himself from the class represented by the representative defendant. It defies reason to argue that a person who has sued a defendant as representing an association to which he belongs for wrongfully acting against his interest must be deemed to be represented as a defendant by the named defendant merely because he did not expressly state that he had exempted himself, just as it should have defied reason to presume that he had alleged a wrong committed by himself against himself. Be that as it may, notwithstanding the copious submissions made by Counsel for the appellants on this Issue, he did not actually address the reasons given by the Court below for coming to the conclusion that the suit was properly constitute I am of the view that the Court below came to a right decision.”
My Lord had pronounced earlier that as a result of the manner and capacity in which the suit was commenced, it was not properly constituted which I am inclined to agree with, given the decision in Okeahialam (supra). I too find merit in this appeal and hereby allow the same and abide by the orders made in the leading judgment of this Court.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the lead judgment just delivered by my Brother ITA G. MBABA JCA.
I agree with his reasoning and conclusion.
I also allow the appeal.
I abide by the consequential order made as to costs, that parties are to bear their respective costs.
Appearances:
Chukwuemeka Okoro, Esq. For Appellant(s)
F. Chukwuemeka Ofodile, SAN, with him, N.C. Nwuno, Esq. for 1st Respondent
B.U. Obieze, Esq (CSC- Imo State) for 2nd Respondent
B.U. Obieze, Esq (CSC- Imo State) for 2nd RespondentFor Respondent
