MMADUAWUCHUKWU v. UNAKA & ANOR
(2022)LCN/17126(CA)
In The Court Of Appeal
(OWERRI JUDICIAL DIVISION)
On Friday, May 27, 2022
CA/OW/18/2014
Before Our Lordships:
Rita Nosakhare Pemu Justice of the Court of Appeal
Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal
Ibrahim Wakili Jauro Justice of the Court of Appeal
Between
CHIEF NDUWUEZE MMADUAWUCHUKWU APPELANT(S)
And
1. HRH EZE MMADUKWEM UNAKA (The Uburu 1 Of Abba Autonomous Community) 2. CHIEF SABASTINE AZONOBI RESPONDENT(S)
RATIO
WHETHER OR NOT A PARTY WHO CONDONED AN IRREGULARITY AT THE TRIAL CAN PROTEST AGAISNT THE IRREGULARITY ON APPEAL
It is pertinent to state, on the contention of the Appellant that this suit was commenced using a wrong procedure, that is, by Originating Summons rather than via a Writ of Summons, that a party who condoned an irregularity at the trial, waives his right to object or protest against the irregularity or process and cannot be heard to do so on appeal. See – Bureau of Public Enterprises v Dangote Cement Plc (2020) 5 NWLR Part 1717 Page 322 at 347-348 Para G-A per Eko JSC.
Furthermore, an issue, as in the instant case, which was not raised, argued and pronounced upon by a trial Court cannot be validly raised as a ground of appeal or as an issue for determination before the appellate Court. A fresh issue cannot be taken up on appeal without the leave of the Court. See Idufueko v. Pfizer Products Ltd (2014) 12 NWLR part 1420 Page 96 at 122 Para A per Galadima JSC; Oforishe v Nigerian Gas Company Ltd (2018) 2 NWLR Part 1602 Page 35 at 57 Para F-G per Rhodes-Vivour JSC.
WHETHER OR NOT THE APPEAL COURT CAN INTERFERE WITH THE FINDINGS OF FACT BY THE TRIAL COURT
Suffice it to say that where evidence is properly evaluated i.e. to say when all the principles of law relevant are properly considered, an Appeal Court will not disturb the findings arrived at by the trial judge – Guardian Newspapers Ltd v. Ajeh (2011) 10 NWLR Part 1256 Page 574 at 592 Para F-H per Rhodes Vivour JSC.
As held by my learned brother and which I agree with, the lower Court rightly evaluated the evidence before it. There is thus no reason to interfere with the decision of the lower Court. PER ADEFOPE-OKOJIE, J.C.A.
IBRAHIM WAKILI JAURO, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the High Court of Imo State in Suit No. HON/36/2012 delivered by Hon. Justice T. E. Chukwuemeka Chikeka on the 18th March, 2013.
BRIEF FACTS OF THE CASE
The Claimants commenced this action through originating summons against the Defendant on 8/10/2012 seeking the following reliefs-
1. A DECLARATION that in view of the non-compliance with the mandatory provisions of CHAPTER 28 OF THE CONSTITUTION OF ABBA DEVELOPMENT UNION, 1999 it is unconstitutional, unlawful, unauthorized, null and void for the 1st defendant to purportedly amend the said Constitution to enact the Constitution of Abba Development Union, 2007.
2. A DECLARATION that the enactment of laws governing the traditional ruler of Abba autonomous community, in deference to the laid down provision of the law, separating Town Union Constitution from that of the autonomous community, and furthermore, without the input of the traditional ruler, is unconstitutional, unauthorized, null and void.
3. An Order of Court setting aside anything done under the said constitution of Abba autonomous community, 2004, including the purported general election of the Union conducted on the 31st of December, 2009.
At the end of the hearing, the Judge granted reliefs 2 and 3 of the claimants and refused to grant relief 1. Dissatisfied with the judgment the Defendant (Appellant) filed a Notice of Appeal on 6/5/2013. The Record of Appeal was transmitted on 17/01/14 and deemed on 3/3/14.
ISSUES FOR DETERMINATION
The Appellant’s brief of argument settled by John I. Nwoka Esq. was filed on 3/3/14 wherein the Appellant distilled five issues for determination as follows:
a. WHETHER OR NOT ABBA DEVELOPMENT UNION WAS A NECESSARY PARTY IN THIS SUIT.
b. WHETHER OR NOT IN VIEW OF THE JUDGMENT OF 18TH MARCH 2013, WHETHER AN ORIGINATING SUMMONS WAS AN APPROPRIATE PROCEDURE FOR THE COMMENCEMENT OF THIS SUIT.
c. WHETHER OR NOT THE LEARNED TRIAL JUDGE BREACHED THE APPELLANT’S RIGHT TO FAIR HEARING WHEN HE SUO MOTU RAISED THE ISSUE OF APPELLANT’S CONSTITUTION NOT HAVING CREDIBILITY AND BASED HIS DECISION TO GRANT RESPONDENTS’ CLAIM ON THAT POINT WITHOUT CALLING ON THE PARTIES AND OR APPELLANT’S COUNSEL TO ADDRESS HIM ON THE POINT.
d. WHETHER HAVING REGARD TO THE CONTENTS OF AFFIDAVIT OF THE PARTIES AND THE DISCOUNTENANCE OF EXHIBIT ‘F’, WAS THE TRIAL JUDGE RIGHT IN BASING HIS JUDGMENT ON FAILURE OF APPELLANT TO COMPLY WITH THE CONTENTS OF SAID EXHIBIT ‘F’ AND WAS THE LEARNED TRIAL JUDGE RIGHT IN REACHING THE CONCLUSION THAT APPELLANT’S CONSTITUTION LACK CREDIBILITY.
e. WHETHER OR NOT THE SUIT WAS COMPETENT HAVING BEEN COMMENCED ON A NON-EXISTING LAW.
The Respondents brief of argument settled by L. C. Alinor (Jnr) Esq. was filed on 25/4/14 wherein a lone issue for determination of this Court was distilled and that is-
“Whether the Respondents proved their case at the lower Court, and thus entitled to judgment against the Appellant”.
I shall consider the submissions of both Counsel on all the issues as distilled by them and hereafter make by findings thereon.
SUBMISSION OF THE APPELLANT
ISSUE ONE-
WHETHER OR NOT ABBA DEVELOPMENT UNION WAS A NECESSARY PARTY IN THIS SUIT.
Learned Counsel submitted here that failure to sue Abba Development Union (ADU) and its representatives rendered the action incompetent as there was no juristic person sued before the Court in the circumstances. He relied on the Supreme Court case of Onuekwusi v. R.T.C.M.Z.C. (2011) 6 NWLR pt. 1243, pg. 341 at 359-360 paragraphs C – F. Counsel also cited Ezionwu v. Egbo (2006) 5 NWLR, part 973, pg. 316 at 327 paragraphs C – E. Thus, Counsel was of the view that not suing the Union renders the suit incompetent.
ISSUE TWO-
WHETHER OR NOT IN VIEW OF THE JUDGMENT OF 18TH MARCH 2013, AN ORIGINATING SUMMONS WAS AN APPROPRIATE PROCEDURE FOR THE COMMENCEMENT OF THIS SUIT.
Here Counsel contends that originating summons ought not be used to commence the action, particularly in the circumstances where facts are in dispute. Counsel described such proceedings as hostile proceedings and that originating summon is not suitable for commencement of action thereon. He cited Owuama v. Obasi (2011) 1 NWLR pt. 1228 pg. 431 at 444 para C. He added that the trial judge having found the suit to have been wrongly commenced by originating summons was to order pleadings so that the case can be heard on its merit. He cited Adeyelu II v. Ajangugbade (2007) 14 NWLR part 1053, pg. 1 at 8 para. D and Osunbade v. Oyewunmi (2007) ALL FWLR pt. 368, pg. 1004.
ISSUE THREE-
WHETHER OR NOT THE LEARNED TRIAL JUDGE BREACHED THE APPELLANTS RIGHT TO FAIR HEARING WHEN HE SUO MOTU RAISED THE ISSUE OF THE APPELLANT’S CONSTITUTION NOT HAVING CREDIBILITY AND BASED HIS DECISION TO GRANT RESPONDENTS CLAIM ON THAT POINT WITHOUT CALLING ON THE PARTIES AND OR APPELLANT’S COUNSEL TO ADDRESS HIM ON THE POINT.
On the issue of credibility of the Constitution, it was neither raised by the Appellant nor the Respondent and that the trial judge raised the issue suo motu and did not afford the parties opportunity to say anything on it and he concluded that the Constitution made by the Appellant lacked credibility. This breached the Appellant’s right to fair hearing. He relied on Uzoho & Ors. V. National Council on Privatization (2007) ALL FWLR part 394 pg. 370 at 387 paragraphs F.
ISSUE FIVE
WHETHER OR NOT THE SUIT WAS COMPETENT, HAVING BEEN COMMENCED ON A NON-EXISTING LAW.
Counsel on this submitted that the finding of the trial judge at pages 223-226 of the Record of Appeal held thus – “The implication of the above is that what exists now as the present day Abba is existing without a Constitution and I so hold”.
And that the Respondents’ relief 1 in the Originating Summon states;
“1. A DECLARATION that in view of the non-compliance with the mandatory provisions of CHAPTER 28 OF THE CONSTITUTION OF ABBA DEVELOPMENT UNION, 1999 it is unconstitutional, unlawful, unauthorized, null and void for the 1st defendant to purportedly amend the said Constitution to enact the Constitution of Abba Development Union, 2007.”
Counsel therefore submitted that the Constitution of Abba Development Union having been rendered ineffective cannot form the basis of any judicial consideration by the lower Court. He relied on Adesanoye vs. Adewole (2006) 14 NWLR Pt. 100 pg. 242 at 271 paragraphs E – F. Counsel went further to submit that where a plaintiff brought an action under a non-existing law, the action should be declared incompetent. See Mudashiru v. Persons Unknown, (2006) 8 NWLR pt. 298 pg. 267 at 279 para A – B.
SUBMISSION BY THE RESPONDENTS
Learned Counsel for the Respondents distilled a single issue for determination viz:-
“Whether the Respondents proved their case at the lower Court, and thus entitled to judgment against the Appellant.”
I find it expedient to consider the response of the Respondents on the issues raised by the Appellant’s Counsel which according to the Respondents have not in anyway countered their proof of the case before the Court.
On the first issue, Counsel submitted in response to the Appellant’s submission that the Abba Development Union is not a necessary party to the case as failure to join a necessary party is an irregularity which does not affect the competency or jurisdiction of the Court to determine the matter before it. See Okoye v. Nig. Cons. & Furniture (1991) 6 NWLR pt. 199 pg. 501 at 532. Counsel also cited other cases on joinder or non-joinder of parties in a suit for instance – Uku vs. Okumagba (1974) 1 ALL NLR 475 at 495. More so the Respondents were not contesting that the Union committed any act against the Respondents, but that the Appellant using his position as the President General of ADU was on a frolic of his own in enacting a constitution for the community when he had no authority to do so.
On issue two as to the proceedings being ‘hostile proceedings’, counsel submitted that he who asserts has the burden of proving same and must fail if he does not succeed. He referred to Cardoso V. Daniel (1986) 2 NWLR Pt. 200 pg. 1 at 36. He submitted that from the affidavit of the parties it is not disputed that the Appellant enacted a Constitution for the ADU and the Abba Autonomous Community. And that all the issues raised are issues of law which could be taken by way of originating summons, which as was held by the Supreme Court is indeed for construction and interpretation of Statutes. See NBN V. Alakija (1978) 9-10 SC, 59 at 71; Unilag vs. Aigoro (1991) 3 NWLR, pt. 179, 376 at 383. Counsel submitted that originating summons was the proper procedure in the circumstances.
As to issue three on fair hearing, counsel submitted that the trial judge did not breach the Appellant’s right to fair hearing as he never suo motu raised the issue of credibility of the Appellant’s Constitution. He submitted that it was indeed the Respondents that raised the issue of credibility of the Appellant’s Constitution in the 2nd relief of their originating summons. See page 5 (Para. F – P) of the Originating Summons and para. 3 d and g of the better and further affidavit in response to the defendants’ (appellants’) counter. He added that the Appellant ought to have adduced credible evidence to show that he had the mandate of the ADU and or the Abba Autonomous Community which the 1st Respondent is the traditional ruler of to enact a constitution governing the ADU and the autonomous community. The Appellant failed to do this and cannot therefore accuse the trial judge of not giving him fair hearing.
And finally, on issue five which takes care of issue four, counsel submitted that the suit was competent going by the claim before the lower Court. He submitted that success under one head of claim is not affected by failure under another head of claim. And that the 2nd relief having been upheld by the lower Court, the issues between the parties had been determined. And that on the authority of Adesanoye v. Adewole (Supra) at pg. 271, since the Government white paper Exhibit ‘F’ had not been revoked by the Government or any Court of competent jurisdiction, the lower Court was right to have set aside the 2007 Constitution enacted by the Appellant as offending this law. Counsel finally submitted that the Appellant having contravened the Government white paper Exhibit ‘F’, which is an extant law of Imo State, clothed his actions with illegality as such his actions should be set aside for being a nullity. Counsel urged the Court to dismiss the appeal.
Resolution
Issue One
On the issue of a necessary party, I am fortified by the holding of the judge at page 224 of the Record of Appeal where he held thus-
“The defendant raised the issue of the necessary parties not before the Court. There is evidence before me that the defendant is the President General of Abba, though he was sued in his personal capacity due to the fact that the claimants perceived that the Constitution of Abba Development Union is well aware of this suit. It has been severally held that a party who knows that he will be or is likely to be affected by the decision of a Court and watches while the matter goes on without applying to be joined will be bound by the decision of that Court.”
What more, the Appellant was the President of the Union and stood idle by without taking any necessary step to join the union as a party in the action cannot now turn round to make a case for the Union as a necessary party. Issue one is resolved against the Appellant.
Issue Two
I find here that in view of the disputes between the parties regarding the Constitution of the ADU and Abba Autonomous Community, originating summons is the best form of procedure to be adopted. And as rightly submitted by Counsel for the Respondents that the Appellant did not raise the issue of impropriety of commencing this action by originating summons at the lower Court but is raising it for the first time at the Appellate Court. This is not allowed save on exceptional grounds. See Sken Consult vs. Ukey (1981) 1 SC 4 at 10.
Above all, it was held by the apex Court that where a wrong procedure has been used in commencing an action, and was not objected to by the opposite party as in this case, the proceedings based on it is valid. See Adebayo v. Johnson (1969) 1 ALL NLR, 176 at 190 – 191.
Issue two is resolved against the Appellant.
Issue Three
As to the credibility of the Appellant’s Constitution this is one of the reliefs sought by the Respondents and throughout the length and breadth of the judgment of the trial Court, I have not seen where the judge raised the issue suo motu without affording the parties an opportunity to state their position. The Appellant indeed failed to show the mandate given to him to enact a new constitution for ADU and that being the case, his argument cannot stand in the circumstances that he was denied fair hearing. Issue three is equally resolved against the Appellant.
Issue Five
Issue four is subsumed in issue five for purpose of resolving the impasse and this relates to the action of the Appellant of enacting a Constitution for ADU and Abba Autonomous Community in clear violation of Exhibit ‘F’ an extant law of Imo State which still has the force of law having not been revoked or declared null and void by any competent law, it only goes to show that the Appellant acted illegally and therefore the so called Constitution is a nullity and must be set aside as rightly done by the trial judge. The holding of the trial judge in the circumstances is apt and I see no reason to depart therefrom. Accordingly, I find and hold that the suit is competent having been commenced by originating summons and the action of the Appellant of enacting a Constitution is null and void. Issue five and also issue four are resolved against the Appellant as well.
In the result, the issues raised by the Appellant in this appeal having been resolved against him, the appeal is baseless and must fail. I accordingly hereby dismiss same. The judgment of the lower Court in Suit No. HOW/36/2012 is affirmed. Costs of N100,000.00 (One Hundred Thousand Naira only) are awarded against the Appellant.
RITA NOSAKHARE PEMU, J.C.A.: I had read before now, the leading judgment just delivered by my brother, IBRAHIM W. JAURO, JCA.
I agree with his reasoning and conclusions. I dismiss the Appeal.
I abide by the consequential order made as to costs.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, IBRAHIM W. JAURO, JCA, where the facts and contentions of Counsel to the parties have been set out and determined.
It is pertinent to state, on the contention of the Appellant that this suit was commenced using a wrong procedure, that is, by Originating Summons rather than via a Writ of Summons, that a party who condoned an irregularity at the trial, waives his right to object or protest against the irregularity or process and cannot be heard to do so on appeal. See – Bureau of Public Enterprises v Dangote Cement Plc (2020) 5 NWLR Part 1717 Page 322 at 347-348 Para G-A per Eko JSC.
Furthermore, an issue, as in the instant case, which was not raised, argued and pronounced upon by a trial Court cannot be validly raised as a ground of appeal or as an issue for determination before the appellate Court. A fresh issue cannot be taken up on appeal without the leave of the Court. See Idufueko v. Pfizer Products Ltd (2014) 12 NWLR part 1420 Page 96 at 122 Para A per Galadima JSC; Oforishe v Nigerian Gas Company Ltd (2018) 2 NWLR Part 1602 Page 35 at 57 Para F-G per Rhodes-Vivour JSC.
Suffice it to say that where evidence is properly evaluated i.e. to say when all the principles of law relevant are properly considered, an Appeal Court will not disturb the findings arrived at by the trial judge – Guardian Newspapers Ltd v. Ajeh (2011) 10 NWLR Part 1256 Page 574 at 592 Para F-H per Rhodes Vivour JSC.
As held by my learned brother and which I agree with, the lower Court rightly evaluated the evidence before it. There is thus no reason to interfere with the decision of the lower Court.
For these and the fuller reasons given by my learned brother, I also find this appeal without merit and dismiss it. The judgment of the lower Court delivered by T. E Chukwuemeka Chikeka in HON/36/2012 is accordingly affirmed. I subscribe to the orders for costs made by my learned brother.
Appearances:
John I. Nnwoka, Esq, For Appellant(s)
L. C. Alinor (Jnr.) Esq, For Respondent(s)
