HRH EZE OKOSIS EDWIN EZEANYIKA & ORS V. THE GOVERNMENT IMO STATE
(2006)LCN/2165(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 26th day of July, 2006
CA/PH/59/2003
RATIO
ACTION: WHERE A CASE COMMENCES THROUGH A WRONG PROCEDURE
In the case of TOM EBIRIKA V. ASA COUNTY COUNCIL AND ATTORNEY-GENERAL FOR EASTERN NIGERIA (1962) 2 ALL N.L.R. 212 it was pointed out that an action to declare the validity of a statute or its sections thereof were better raised by a declaratory action rather than by an originating summons. See Suit No. HCR/9/2001 EZE LAMBERT AKUNEZIRI V. SPEAKER IMO STATE HOUSE OF ASSEMBLY AND 19 ORS (unreported) decided by NJEMANZE J. on 5/7/2001. Also in the case of TUKUR V. GOVERNMENT OF TARABA STATE (1997) 6 NWLR (pt 510) 549 a case which is similar to the facts of the instant case, Belgore JSC at page 578 stated as follows: “This matter was taken to the trial court” on a wrong vehicle, instead of a writ of summons designed for initiating an action, it was started with a motion on notice under Fundamental Rights Procedure under the Constitution.” I therefore hold that this case is incompetent in this court as it was commenced through a wrong procedure. PER MUSA DATTIJO MUHAMMED, J.C.A.
Before Their Lordships
MUSA DATTIJO MUHAMMEDJustice of The Court of Appeal of Nigeria
ISTIFANUS THOMASJustice of The Court of Appeal of Nigeria
MONICA BOLNAAN DONGBAN-MENSEMJustice of The Court of Appeal of Nigeria
Between
1. HRH EZE OKOSIS EDWIN EZEANYIKA
2. CHIEF ALLOY IGBOJIONU
3. CHIEF LIVINUS EMEZIRIONYE
4. MR. ETHELBERT IBEBUCHIAppellant(s)
AND
1. THE GOVERNMENT IMO STATE
2. THE ATTORNEY IMO STATE
3. IMO STATE HOUSE OF ASSEMBLY
4 SPEAKER IMO STATE HOUSE OF ASSEMBLY
5. IMO STATE INDEPENDENT ELECTORAL COMMISSIONRespondent(s)
MUSA DATTIJO MUHAMMED, J.C.A. (Delivering the Leading Judgment): The appellants herein as applicants, following the leave granted to them by the lower court, Imo State High Court, applied against the respondents for the enforcement of their right claiming as follows:
“(a) A declaration that S.24 of the Traditional Rulers and Autonomous Communities Law No. 3 of 1999 which Purports to restrict the right to object to and protect against the creation of new autonomous community only to members of the new or proposed autonomous community is unconstitutional, illegal, null and void in so far as it deprives the Applicants as members of an existing autonomous community from where new autonomous communities are sought to be created, the right of fair hearing in a matter that affects their interest contrary to S. 36 of the 1999 Constitution of the Federal Republic of Nigeria.
(b) A Declaration that S. 26 of the said law empowering the Imo State House of Assembly, (3rd Respondent) where there is protest, to conduct an election in the proposed new autonomous community and NOT in the existing Community is unconstitutional, illegal, null and void since it also deprives the Applicants as members of an existing community from where new autonomous communities are sought to be created, the right to be heard in a matter that affects their interests or civil rights and obligations under S. 36 of the Constitution.
(c) A Declaration that it is against S.36 of the 1999 Constitution for the 1st and 2nd Respondents to seek to create Ozuomee and Ozuakoli Autonomous Communities out of Urualla Autonomous Community without giving the Applicants the opportunity to be heard in the matter and which proposed creation affects their interests.
(d) A declaration that the holding of an election for the purpose of seeking to create or the creation of Ozuomee and Ozuakoli autonomous Communities out of Urualla will be violating the provisions of S.36 of the 1999 Constitution of the Federal Republic of Nigeria.
(e) An order of the Honourable Court perpetually restraining the respondents, their servants, agents or privies from seeking to create or from creating any new autonomous Communities out of Urualla or from conducting or causing to be conducted a plebiscite or election AT ALL pursuant to the purported creation of any new autonomous community or communities out of Urualla Town.”
On being Served with the motion on notice, the 1st, 2nd and 5th respondents filed a notice of preliminary objection on the following grounds: –
“(i) The issues raised in the application not issue’s or questions relating to the enforcement of Fundamental Rights.
(ii) The applicants have not disclosed any Locus standi to raise the questions comprised in this application
(iii) The entire application or a substantial part of it is statute barred.
(iv) The principal Reliefs in this application are either hypothecial or academic or are not covered by the particular sections of the constitution to which they refer.”
(Underlining supplied for emphasis)
Arguments were taken on the preliminary objection. In a reserved and considered ruling, the lower court upheld the objection and struck out appellants’ application. The court held that the object of appellants’ application was to challenge the validity of Sections 24 and 26 of Imo State Law No.3 of 1999 and that appellant had invoked a wrong procedure.
Being dissatisfied, the appellants have appealed against the trial court’s ruling on four grounds. It will facilitate a better appreciation of the issues the instant appeal raises if were count at once the facts on which the appeal hinges.
Pursuant to the provisions of its Law No.3 of 1999, the Imo State government sought to create new autonomous Communities in the state. The Ozuomee and Ozuakoli along with Umuago and Ezemeazu constituted Urualla autonomous community. Uzuomee and Ozuakoli were among the applicants for new autonomous communities. The appellants herein protested against the application by the Uzuomee and Ozuakoli communities to be constituted into a separate autonomous community from the Urualla community they hitherto formed part of. Appellants were not from Uzuomee and Ozuakoli communities. They claimed to be representing the Umuagu and Ezemeazu communities. Appellants’ grievance was that the creation of a separate autonomous community for Uzuomee and Ozuakoli communities would jeopardize the interest of the two communities they were representing; that as the representatives of the two communities their constitutional right to be consulted before the creation of the new autonomous communities out of Urualla had been violated.
The trial court found that appellants’ action for the enforcement of their fundamental rights being primarily a challenge against the validity of a statute was inappropriate and incompetent. The appeal is accordingly against this ruling of the lower court.
Parties have filed and exchanged briefs of argument. In the appellant’s brief the following questions have been formulated for the resolution of the appeal. They read:
“(1) Whether the Learned Trial Judge was right when he suo motu raised an issue never canvassed by any of the parties before him and gave his ruling striking out the action based on that sole issue
(Ground 3 of Appeal).
(2) Whether the Learned Trial Judge was right when he held that in so far as the validity of sections 24 and 26 of the Traditional Rulers and Autonomous Community Law No. 3 of 1999 of Imo State was being challenged, that the Appellants used a wrong Procedure (Grounds 1, 2 and 4 of Appeal).”
The respondents at page 5 of their brief formulated three issues for the determination of the appeal. The issues read:
“3.01: Did the Trial court suo motu raise any issue in this matter? If the answer to the foregoing is in the affirmative did the same occasion a miscarriage of Justice?
3.02: Is it appropriate to commence a proceeding whose main purpose is to challenge the validity of a provision or provisions of a statute by the mode of Fundamental Rights Enforcement Procedure Rules?
3.03: Was it necessary for the Trial court to make pronouncements on Reliefs (c) and (d) in view of the relationship between those reliefs and reliefs (a) and (b)? If the answer to the above is in the affirmative, did the failure of the Trial court to make the pronouncements lead to a miscarriage of Justice?”
In arguing appellant first issue, it is contended that respondent objection to the lower court’s exercise of jurisdiction over appellant’s action was anchored on four grounds. 1st, 2nd and 5th respondents had objected on the ground that appellant’s action had not raised questions relating to the enforcement of fundamental rights; that appellants lacked the locus to sue; that the action was entirely or substantially statute barred; and finally that the principal reliefs sought by the action had raised academic or hypothetical questions. 3rd and 4th respondents associated themselves with the submissions made by other respondents along the four lines already outlined. Appellants joined issues with the respondents on the four grounds upon which the latter’s objection was raised. Yet, learned senior appellant’s counsel contends, the court at page 70 of the record held that appellant’s action was seeking a pronouncement on the validity of sections 24 and 26 of the traditional rulers and autonomous communities laws No. 3 of 1999. The court held appellants’ action incompetent having been commenced through the wrong procedure. This conclusion of the court, learned senior counsel argues, must be tampered with on appeal as same had not evolved from any of the four grounds raised by the parties for the court’s determination. The court cannot on its own raise a matter and decide same without hearing the partiers before it Relying inter alia on: Udogu v. Egwuatu (1994) 3 NWLR (Pt 330) 120 at 127 -128; Carribean Trading and Fidelity Corporation v. U. UNPC (1992) 7 NWLR (Pt 252) 161 and Orugbo v. Una (2000) 16 NWLR (Pt 992) 175 at 206-207, learned senior advocate urges that appellant’s first issue be resolved in their favour and the appeal be allowed.
As to their 2nd issue, learned senior counsel argues that the lower court’s finding that appellant’s action not being a bid to enforce their fundamental right was incompetent having been commenced by wrong procedure. Chapter IV of the 1999 Constitution does outline the rights it guarantees and for the enforcement of which the fundamental rights (enforcement procedure) rules have been specially put in place. These rules have left open the categories of rights enforceable by virtue of them. The list there under is not exhaustive while learned senior counsel concedes that two out of the five reliefs appellants canvassed, reliefs 3(a) and (b), challenged the validity of S. 24 and S. 26 of the Imo State Law No. 3 of 1999, reliefs 3 (c)-(d) thereof did not. The latter category of reliefs could not have been rightly adjudged incompetent for the same reasons reliefs 3(a) and (b) were adjudged Appellants’ action, it is submitted, should have survived on the basis of reliefs 3(c) and 3(d), which did not seek pronouncement on the validity of S. 24 and S. 26 of Law No. 3 of 1999 of Imo State. By these reliefs that had survived, appellant’s case was that their right to fair hearing had been breached and the object of the action was the enforcement of this right to fair hearing. Learned counsel insists that their 2nd issue be resolved also in their favour and the appeal allowed too.
On behalf of the respondents counsel has argued that the objection to appellants’ action is that the entire reliefs being sought are not such that can rightly be agitated through a proceeding under the fundamental rights enforcement procedure rules. The portion of the lower court’s ruling at page 70 lines 8-12 of the record complained of by the appellants being not outside the objection raised by the respondents, had not been raised suo motu by the court. The import of the court’s decision is that the appellant’s action challenging the validity of legislation, S.24 and S 26 of the Imo State Traditional Rulers and Autonomous Communities Law No. 3 of 1999, had not been commenced through the right procedure. Appellant’s further grouse that the trial court had incorrectly applied the Supreme Court’s decision in Tukur v. Government of Taraba State (1997) 6 NWLR (pt 510) 541 remains unavailing. The decision in Tukur’s case being on facts similar to the facts relied upon by the appellants in the instant case, counsel submits, is binding.
Learned respondents’ counsel submits that the 2nd issue formulated by the appellants is misleading. Once appellants have conceded that their action is set to challenge the validity of some sections of the Imo State Laws No.3 of 1999, the real question to be determined is whether the procedure for the enforcement of their fundamental adopted for that purpose is appropriate. Appellant’s application was struck out because the procedure employed is inappropriate. This stance of the lower court, counsel argues, is supported by a chain of authorities which inter alia, includes Tukur v. Government of Gongola State supra; Bornu State Television Corporation v. Egbuonu (1991) 2 NWLR (Pt 171) 81 and Jack v. Unam (2004) 5 NWLR (pt 865) 208. Learned counsel re-emphasizes that the lower court is right to have relied on the Supreme Court’s decision in Ebirika v. Asa County Council & Anor (1962) 2 ALL NLR 212. The latter decision, he submits, only states the correct procedure a plaintiff adopts in challenging the validity of provisions of a given statue. Counsel urges that the circumstances of the instant case and Ebirika’s case are the same and indistinguishable.
Respondents’ brief contains, and unnecessarily too, a 3rd issue for the determination of this appeal.
An appeal, it must be stressed, is the very complaint on the basis of which the complainant, that is the appellant, seeks the appeal to be allowed. And the appellant here has two such complains. Accordingly, the consideration of the appeal must revolve around these two issues on the basis of which the appellants seek the resolution of their appeal. Respondents had neither appealed against the lower court’s decision nor filed a respondent’s notice. After all, respondents’ grief must not surpass that of the appellant who in our circumstance is the bereaved. See KLM Airlines V. Kumizhi (2004) 8 NWLR (Pt 875) 231 CA.
Again, it must be observed that appellants’ two issues are intrinsically the same. The two have the same import and impact. In essence, appellants’ two issues are a single complaint put differently. Proliferation of issues is the phrase! This, appellants must not be allowed to do. See U.B.N. PLC v. Olori Motors co. Ltd (1998) 5 NWLR (Pt 551) 657.
And in any event, the appellate court is not bound to consider all the issues formulated by the appellant or indeed all the parties to the appeal. Where the consideration of the fundamental issue the appeal raises would adequately determine the appeal, so be it. See Ewo v. Ani (2004) 3 NWLR (Pt 861) 610 SC.
In the instant case appellant had gone to court with a complaint against their exclusion from the process of the creation of autonomous communities as provided for by the Imo State Law No. 3 of 1999. The lower court following the objection raised by the respondents found that the object of appellants’ case is for that court to pronounce on the validity of sections 24 and 26 of the Traditional Rulers and Autonomous Communities Law No. 3 of 1999. This finding drew from reliefs 3(a) and (b) in appellants’ application earlier reproduced in this judgment. In sustaining the objection raised by the respondents, the lower court concluded as follows:
“If this be so, then this case was commenced through a wrong procedure, In the case of TOM EBIRIKA V. ASA COUNTY COUNCIL AND ATTORNEY-GENERAL FOR EASTERN NIGERIA (1962) 2 ALL N.L.R. 212 it was pointed out that an action to declare the validity of a statute or its sections thereof were better raised by a declaratory action rather than by an originating summons. See Suit No. HCR/9/2001 EZE LAMBERT AKUNEZIRI V. SPEAKER IMO STATE HOUSE OF ASSEMBLY AND 19 ORS (unreported) decided by NJEMANZE J. on 5/7/2001.
Also in the case of TUKUR V. GOVERNMENT OF TARABA STATE (1997) 6 NWLR (pt 510) 549 a case which is similar to the facts of the instant case, Belgore JSC at page 578 stated as follows:
“This matter was taken to the trial court” on a wrong vehicle, instead of a writ of summons designed for initiating an action, it was started with a motion on notice under Fundamental Rights Procedure under the Constitution.”
I therefore hold that this case is incompetent in this court as it was commenced through a wrong procedure.
In consequence of this decision, I do not consider it necessary to pronounce on other issues raised in the preliminary objection. Consequently I hereby strike out this case for being incompetent before the court. I make no order as to cost.”
From the foregoing it must be conceded to the respondents to this appeal that the lower courts decision rests squarely on the fact that reliefs 3(a) and 3(b). The true import of the decision is that reliefs 3(a) and (b) particularly avails the appellant only after S.24 and S.26 of the Imo State Law No 3 of 1999 had been invalidated on the ground that same had excluded appellants from protesting against or participating in the process of the creation of a new autonomous community in place of the existing one. Reliefs 3 (a) and 3 (b) constitute the major reliefs appellants sought from the lower court. The other reliefs could only be granted after reliefs 3(a) and 3(b) had been obtained. All other reliefs are consequential and ancillary as they hinge on those others which are major and fundamental. Respondents’ objection to appellants’ action given their 1st and 4th grounds thereof is to the effect that the entire action, the totality of the reliefs, cannot be accessed by the appellants through the procedure employed. Most devastating is respondent’s 4th ground which is to the effect that the right which appellants set out to enforce were not such that came under S.36 of the 1999 Constitution for their enforcement. It is the nail which sealed appellant’s hope to the subsidiary reliefs. The lower court upheld this objection and one cannot agree more.
Indeed, unless a proceeding had been commenced by the correct procedure, the court cannot assume lawful jurisdiction and being bereft of the necessary competence it can neither enquire into nor determine the issue placed for its consideration.
Proceedings commenced through the wrong procedure, is a nullity. See Madukolu & Ors v. Nkemdilim (1962) 2 SCNLR 431.
In the instant case, the appellants resort to the fundamental Rights (Enforcement Procedure) rules for the enforcement of a right that is not covered by chapter iv of the 1999 Constitution is wrong. The rules do not avail them for the enforcement of rights which are not fundamental. For the purpose of these special rules, it is a condition precedent to the exercise of the court’s jurisdiction that the right sought secured or enforced is not only fundamental but constitutes the main rather than an accessory claim. See B.R.T.C. v. Egbuonu (1991) 2 NWLR (Pt 171) 81 and Tukur v. Govt of Taraba State supra.
Learned appellants’ senior counsel’s submission that the lower court had on its own introduced the question of the validity of S.24 and S.26 of the Imo State Law No. 3 of 1999 is glaringly incorrect. Reliefs 3(a) (b) are all about the validity of the particular sections of that legislation. Respondent’s objection to appellants’ action related to all the reliefs as canvassed. Respondents counsel’s argument is that such reliefs being in respect of rights that are not fundamental cannot be enforced through the rules specifically put in place only for the protection of rights which are covered by chapter iv of the 1999 constitution. Appellants’ right to be part of a given autonomous community is not a right guaranteed by chapter IV of the constitution. Appellants’ primary grouse and the entire reliefs they asked the lower court to grant them related to the creation of autonomous community as it affected them. This cannot be said to be a right that could be so enforced. I so hold.
Finally, learned respondents’ counsel is right in his submission that the lower court could have sustained their objection merely by stating that appellants’ action being not for the enforcement of their fundamental right is incompetent. The fact that the court had gone further to state the procedure which appellants should have adopted in challenging the validity of S.24 and S.26 of the Imo State Law No. 3 of 1999 does not detract from the impeachability of the court’s decision. The decision remains unassailable in spite of the further pronouncement. Even if the added pronouncement is an error, and it has not been said to be one, as the error had not caused any miscarriage of justice, same would not change appellants fortune in this appeal. See Owhonda v. Ekpechi (2003) 17 NWLR (pt 849) 326 SC and Udegbunam v. F.C.D.A. (2003) 10 NWLR (Pt 829) 487 SC.
In sum, the appeal is completely without merit. It is accordingly dismissed with cost of N10, 000.00 against the appellants.
ISTIFANUS THOMAS, J.C.A.: I read before now, the lead judgment just delivered by my learned brother, Muhammad, JCA. His Lordship has illuminated the issues argued by both parties before he dismissed the appeal. I have no more to add, and I adopt the judgment as my own. I also dismiss the appeal.
I abide with consequential orders made in the lead judgment.
MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A.: It was the learned Justice Okay Achike JSC (of blessed memory) who described as “deliberate and disingenuous”, the “act of over sighting the restricted frontiers of chapter four…” of the Nigerian Constitution and the specified fundamental rights enforcement rules in claims totally of ordinary civil nature.
The Apex Court and this court have been consistent in holding that a party who seeks redress under the fundamental rights special provisions must have his claim, fall squarely within the four walls of the fundamental rights provisions. (Refer Peterside v. International Merchant Bank (Nigeria) Ltd. (1993) 2 NWLR (Pt. 278) 712, Son Trucks Nigeria Ltd. V. Panya Anigboro (2001) 2 NWLR (Pt. 696) 159) Where the claim is merely tangential to the main complain, this Court will not devalue the provisions of the Fundamental Rights Enforcement Rules by extending its restricted boundaries to such matters which can adequately be addressed under the fair hearing principles. Not all fair-hearing matters necessarily fall under the Fundamental Rights Enforcement Rules.
The Fundamental Rights Enforcement Rules constitute the Intensive Care Unit (ICU) of Judicial Proceedings. Only urgent matters affecting the life or liberty of citizens should be addressed there under.
I entirely agree with the lead judgment of my learned brother
Muhammad JCA. The appeal is dismissed with a cost of N 10, 000.00 against the appellant.
Appearances
C. K UBA ESQ,For Appellant
AND
1. CHIEF EZE DURU IHEOMA
2. CHIEF BON NWAKANMA (SAN)For Respondent
