MBOSOH v. ONNA TRADITIONAL RULERS’ COUNCIL & ORS (2021)

MBOSOH v. ONNA TRADITIONAL RULERS’ COUNCIL & ORS

(2021)LCN/15122(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Thursday, May 06, 2021

CA/C/191/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

OBONG (BARR.) NTIENSE MBOSOH APPELANT(S)

And

ONNA TRADITIONAL RULERS’ COUNCIL 2. COMMISSIONER FOR LOCAL GOVERNMENT & CHIEFTAINCY AFFAIRS 3. GOVERNMENT OF AKWA IBOM STATE 4. ATTORNEY GENERAL, AKWA IBOM STATE RESPONDENT(S)

RATIO

WHEN IS A SUIT ACADEMIC

It is true that the Courts have defined a suit as academic, where it is merely theoretical, makes empty sound, and has no practical utilitarian value to the plaintiff even if judgment is given in his favour. See ODEDO v. OGUEBEGO (2015) 13 NWLR (Pt. 1476) 229 @ 251; PLATEAU STATE v. ATTORNEY-GENERAL (2006) 3 NWLR (Pt. 967) 346. PER MOJEED ADEKUNLE OWOADE, J.C.A.

WHETHER ISSUES FOR DETERMINATION FORMULATED IN A BRIEF MUST BE RELATED TO ANY GROUND OF APPEAL FILED BY THE PARTIES

It is trite that issues for determination formulated in a brief must be based on the grounds of appeal filed by the parties. If the issues are not related to any ground of appeal, then they become irrelevant and go to no issue. Consequently, any argument in the brief in support of such issues will be discountenanced by the Court. See IBATOR v. BARAKURO (2007) 9 NWLR (Pt. 1040) 475 SC; SHITTA-BEY v. A-G, FEDERATION (1998) 10 NWLR (Pt. 570) 392 SC; JC. LTD. v. EZENWA (1996) 4 NWLR (Pt. 443) 391 @ 399 SC; MOMODU v. MOMOH (1991) 1 NWLR (Pt. 169) 608 SC. PER MOJEED ADEKUNLE OWOADE, J.C.A.

CORRECT PROCEDURE TO BE ADOPTED IN HEARING ORIGINATING SUMMONS WHERE THERE IS AN OBJECTION TO JURISDICTION OF THE COURT

Indeed, by the Appellant’s counsel showing what the Supreme Court said in the case ofADELEKE v. OYO STATE HOUSE OF ASSEMBLY (2006) 16 NWLR (Pt. 1006) 608 @ 771 is that where proceedings are commenced by originating summons, and an objection is taken to the jurisdiction of the Court, it is always neater, tidier, better and advisable that arguments be taken together with the substantive matter. See also, Uwais CJN inAMADI v. NNPC (2000) 10 NWLR (Pt. 674) 76 @ 100; SENATE PRESIDENT v. NZERIBE (2004) 9 NWLR (Pt. 878) 251 @ 272. In other words, the Supreme Court in the above cases including the ones cited by the Appellant, laid down a rule of practice as to the idea of taking preliminary objections along with the substantive matter in matters filed under the originating summons procedure. This is understandable as the originating summons procedure deals with affidavit evidence which are usually non-contentious and such practice would definitely save precious judicial time. PER MOJEED ADEKUNLE OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): By originating summons accompanied by supporting Affidavit and Written Address on 27/10/2017, the Appellant as Plaintiff asked the Court to determine the question:
Whether the Plaintiff can be excluded from being selected to occupy the office of the clan head of Oniong clan in Onna Local Government Area in view of Section 8 of the Traditional Rulers Law Cap. 134, Laws of Akwa Ibom State, 2000, having been duly selected by his village, verification of the selection concluded by the 2nd Defendant but his certificate delayed by the 3rd Defendant.

He sought a sole relief thus:
A Declaration that the Plaintiff is entitled in law, having been duly selected by his people as their village head elect, and same verified by the 2nd Defendant as correct and proper even when the delay in the issuance of his certificate is caused by the 3rd Defendant, to be selected as the clan head of Oniong, Onna by virtue of Section 8 of the Traditional Rulers Law (supra)?

The first Defendant filed a memorandum of conditional appearance of 8/12/2017 and proceeded to

exchange affidavit evidence by way of counter Affidavit to the originating summons of the Appellant.

The 2nd, 3rd and 4th Defendants Respondents only filed memorandum of conditional appearance but did not further join issues with the Appellant. Still on 8/12/2017, the 1st Defendant Respondent filed a Notice of preliminary objection which prayed the Court to strike out the Appellant’s suit for want of jurisdiction. The grounds for the application are:
a. The suit does not disclose a reasonable cause of action.
b. The Plaintiff does not have the requisite locus standi to institute the suit.
c. The action is incompetent, the Plaintiff having failed to take the statutory administrative steps as stipulated in the Traditional Rulers Law of Akwa Ibom State, 2000.

The Appellant and the 1st Respondent further exchanged processes including Written Addresses on the 1st Defendant’s Respondent’s preliminary objection. On page 62 of the Record of Appeal, the parties adopted their written addresses on the preliminary objection by the 1st Defendant/Respondent. Learned trial Judge thereafter adjourned for ruling which was delivered

on 15/2/2018. The ruling is the subject matter of this appeal.

Dissatisfied with the decision/ruling, the Appellant filed a Notice of appeal containing two (2) grounds of appeal in this Court on 16/2/2018. The relevant briefs of Argument are as follows:
1. Appellant’s brief of Argument filed on 28/6/2018 but deemed filed on 19/1/2021. It is settled by N. A. Williams, Esq.
2. 1st Respondent’s brief of Argument incorporating Preliminary Objection and Notice of Intention to confirm decision otherwise. It was filed on 17/10/2019 but deemed filed on 19/1/2021. It is settled by S. C. Amaefule, Esq.
3. Appellant’s Reply brief which was filed on 3/2/2021 but was deemed filed on 10/3/2021. It is settled by N. A. Williams, Esq.

THE PRELIMINARY OBJECTION
Learned counsel for the 1st Respondent raised three (3) grounds by way of preliminary objection. They are:
1. That the appeal has become an academic exercise.
2. No valid Appellant’s brief of Argument.
3. Appellant failed to obtain leave to raise fresh ground and issue on appeal.

On the first ground, 1st Respondent’s counsel submitted that by

the outcome of a fresh suit, that is Suit No. HEK/55/2018 which is different from Suit No. HEK/69/2017 now on appeal, the Appellant had subsequently participated in the selection process which was the subject matter of Suit No. HEK/69/2017.

He submitted that this leaves us with a purely academic exercise in this appeal. He referred to the cases of FRN. V. BORISHADE (2015) ALL FWLR (Pt. 785) 227 SC; OLANIYI v. AROYEHUN (1991) 5 NWLR (Pt. 194) 652; PLATEAU STATE v. A-G, FEDERATION (2006) 3 NWLR (Pt. 967) 346 @ 419 to say that this appeal has become academic and that the Courts have admonished that precious judicial time ought not to be extended in dealing with issues that have become hypothetical.

On the second ground, 1st Respondent’s counsel submitted that the Appellant’s brief was filed ever before the appeal was entered and that there was no pending appeal when the Appellant’s brief was filed.

On the 3rd ground of preliminary objection, learned counsel for the 1st Respondent claimed that Appellant did not obtain leave to raise fresh issue as in ground 1 of the Notice of Appeal as the said ground on which issue 1 was based was

not an issue decided by the trial Court. On this, 1st Respondent’s counsel referred to the cases of KIBIYA & ORS. v. ALHAJI RABIU (2005) ALL FWLR (Pt. 287) 998 @ 1015-1023; MBAKWE v. RMS AFRICA & ANOR. (2001) FWLR (Pt. 59) 1343 @ 1352; LAWSON v. AFANI CONTINENTAL CO. NIG. LTD. & ANOR. (2002) FWLR (Pt. 109) 1736 @ 1768.

He submitted that even if the second ground of appeal is competent, that alone cannot salvage this appeal. This, he said is because, the Appellant argued the appeal based on two issues derived from the two grounds. That the incompetent ground contaminates the other by reason of non-obtainment of leave. He referred to the cases ofFYNEY v. SULE (2002) FWLR (Pt. 94) 115 @ 133; BELLO v. UDOYE & ANOR. (2004) ALL FWLR (Pt. 225) 63 @ 82; ALHAJI JIKAMSHI & ANOR. v. DR. MATAZU & ORS. (2004) ALL FWLR (Pt. 230) 1077 @ 1093; GWANDU v. GWANDU & ORS. (2004) ALL FWLR (Pt. 229) 841.

Learned counsel for the Appellant submitted in respect of the 1st Respondent’s grounds of objection that interpretation of the provisions of the law by Courts can never be an academic exercise. He added that, even if the Appellant took

part in the selection process, it was not based on interpretation of law by the Court below.

On the second ground of objection, learned counsel for the Appellant merely reminded the 1st Respondent’s counsel that this Honourable Court had since regularized his Appellant’s brief of Argument.

On the third ground, learned counsel for the Appellant submitted that the issue of procedure to be adopted in hearing originating summons is a question of law and concluded that no fresh issue was in fact raised.

I have carefully examined the 1st Respondent’s grounds of objection. It is true that the Courts have defined a suit as academic, where it is merely theoretical, makes empty sound, and has no practical utilitarian value to the plaintiff even if judgment is given in his favour. See ODEDO v. OGUEBEGO (2015) 13 NWLR (Pt. 1476) 229 @ 251; PLATEAU STATE v. ATTORNEY-GENERAL (2006) 3 NWLR (Pt. 967) 346.

However, in the instant case, this Court cannot rely on facts outside of the suit appealed against and the record of appeal adduced by the 1st Respondent relating to Appellant’s possible lack of benefit for the outcome of the appeal

to declare the appeal as incompetent.

As for the ground on Appellant’s brief of Argument, the Appellant’s brief was regularized by this Honourable Court on 19/1/2021 and so deemed properly filed. Appellant’s Ground 1 of the Notice of Appeal and issue 1 formulated on the said ground is an issue bordering on fair hearing and or jurisdiction and does not require leave of Court.

The 1st Respondent’s preliminary objection cannot be sustained and it is accordingly overruled.

THE MAIN APPEAL
Learned counsel for the Appellant nominated two (2) issues for the determination of the appeal. They are:
i. Whether the lower Court adopted the correct procedure in hearing originating summons before striking out the suit of the Appellant.
ii. Whether or not the lower Court was right in holding that the Appellant had no locus standi to institute the action.

Learned counsel for the 1st Respondent also formulated two issues for the determination of the appeal as follows:
a. Whether the Appellant suffered any miscarriage of justice as a result of the procedure adopted by the lower Court in determining the preliminary

objection.
b. Whether the lower Court was right to have held that the Appellant lacked the requisite locus standi to institute this suit.

He also formulated two other issues for the determination of the 1st Respondent’s notice.
c. Whether this suit disclosed a reasonable cause of action.
d. Whether this suit was competent the Appellant having failed to fulfill the condition precedent to the institution of a chieftaincy suit as stipulated in the Traditional Rulers Law of Akwa Ibom State.

As a preliminary matter, I noticed that Appellant’s issue 2 was not derived from Ground 2 of the grounds of Appeal on which it is purportedly based. Indeed, Appellant’s Ground 2 on fair hearing merely supports Appellant’s Ground 1 and does not create or offer any specific ground of locus standi for an issue of locus standi to validly derive from it.

For ease of reference, Appellant’s grounds of Appeal together with their particulars as contained on pages 81-82 of records are reproduced below:
GROUND 1.
The lower Court lacks the jurisdiction to hear and dismiss the originating summons of the Plaintiff on the

preliminary objection of the 1st Defendant alone when the other defendants did not yet file their processes.
PARTICULARS OF ERROR
1. The procedure in hearing originating summons as adopted in ADELEKE v. OYO STATE HOUSEOF ASSEMBLY (2006) 16 NWLR (Pt. 1006) 608 was not followed.
2. The 2nd to 4th Defendants in this matter did not file any process yet apart from memorandum of conditional appearance as at the time the matter was decided by the lower Court.
GROUND 2.
The lower Court erred in law when it dismissed the Plaintiff’s originating summons in limine thereby breaching the Plaintiff’s right to fair hearing.
PARTICULARS OF ERROR
1. The matter was not commenced with a writ of summons.
2. The matter bothers (sic) boarders on interpretation of statute which is the preserve of Court.
3. The Plaintiff was not given fair hearing.

It will be clearly seen that Appellant’s Ground 2 of the grounds of appeal deal with fair hearing and in a way, seems to be an extension of Appellant’s Ground 1 of the grounds of appeal. There is nothing either in Appellant’s Ground 2 or its accompanying

particulars to suggest any issue of locus standi as contained in Appellant’s issue 2.

In the instant case, Appellant’s Issue No. 2 is not based on Ground 2 nor indeed on any ground of the Notice of Appeal, the submissions on Appellant’s Issue No. 2 are irrelevant and accordingly discountenanced.

In consequence of the above, this appeal shall be based on Appellant’s issue No. 1 as the sole issue in the appeal.

On the said issue No. 1, learned counsel for the Appellant submitted that the ruling of the Court below was based on the preliminary objection of the 1st Defendant/

Respondent alone. He referred to the provision of Order 17 Rule 16 of Akwa Ibom State High Court (Civil Procedure) Rules, 2009 which says “a respondent to an originating summons shall file a counter affidavit together with all the exhibits he intends to rely upon and a written address within 21 days of the service of originating summons.” He submitted that only the 1st Respondent alone filed her processes. That the 2nd-4th Respondents did not file any processes and that the trial Court went on to decide the matter on the preliminary objection of the 1st Respondent alone.

Secondly, learned counsel for the Appellant submitted that the correct procedure to adopt where an objection is raised to the jurisdiction of a Court in a matter commenced by originating summons, is to consider the objection together with the substantive matter. That invariably, this would involve the consideration of not only reliefs being claimed against the background of facts deposed to in the affidavit in support of the originating summons, but the totality of available evidence, including the facts contained in the counter affidavit in opposition to the originating summons. He

referred on this to the cases of ADELEKE v. OYO STATE HOUSE OF ASSEMBLY (2006) 16 NWLR (Pt. 1006) 608; DAPIANLONG & ORS. v. DARIYE (2007) 152 LRCN 155 @ 217; YAR’ADUA v. YANDOMA (2015) ALL FWLR (Pt. 770) 1215 @ 1247.

In response, learned counsel for the 1st Respondent made the point that a perusal of the Court’s ruling at pages 63-80 of the record will show that the trial Court actually combined and considered both the originating summons and the preliminary objection together. He submitted that the practice of hearing the preliminary objection together with the substantive matter is advisedly for practice convenience where time is of the essence, such as in election matters or impeachment processes. It is merely a matter of practice. That in ENUKEME v. MAZI (2015) 17 NWLR (Pt. 1488) 411, it was held that “it is now common practice for a Court to hear motions or objections raised against a hearing of a suit together with the substantive matter where time is of the essence for the determination of the substantive matter”.

He reasoned that the Appellant has failed to realize that where the Court decides to take the objection

together with the substantive suit and the objection succeeds, the case or action will terminate in limine. That it is only where the objection fails that the Court will proceed to determine the substantive suit on its merit. He referred to the case of A.G LAGOS STATE v. A.G FEDERATION (2015) 62 (Pt. 2) NSCQR 1155 @ 1222.

1st Respondent’s counsel further submitted that where as in the instant case, a party has adopted a procedure by consent, he will not be heard on appeal that the procedure he adopted is prejudicial to him or had occasioned a miscarriage of justice. The law, he says is that where a party has willingly participated in the proceedings without any form of objection, he would not be heard to raise any complain about the procedure on appeal. He referred to the cases of AGBAKOBA v. I.N.E.C. (2009) ALL FWLR (Pt. 462) 1037 @ 1072; IBATOR v. BARAKURO (2007) ALL FWLR (Pt. 371) 1669 @ 1688.

On the contention of the Appellant that the 2nd-4th Defendants/Respondents did not file any process in the case, 1st Respondent’s counsel submitted that the Defendants were given 21 days to file their counter affidavit, if any, and by the time the

Court heard the matter, the said 21 days had long elapsed. He submitted that, where a party who has or had every opportunity to present his case before the Court fails to do so, he cannot be heard to complain of breach of fair hearing. He referred to the cases of EKIYOR & ANOR. v. CHIEF BOMOR & ANOR. (1997) 9 NWLR (Pt. 519) 1 @ 12; INAKOJU & ORS. v. ADELEKE & ORS. (2007) Vol. 143 LRCN 1 @ 180.

I have no doubt in my mind that the learned counsel to the 1st Respondent has given a complete answer to the sole issue to be decided in the Appellant’s brief of Argument.

In the first place, the provision of Order 17 Rule 16 of the Akwa Ibom State High Court (Civil Procedure) Rules, 2009, referred to by the learned counsel for the Appellant sets a timeline of 21 days for a Defendant in an originating summons procedure to file counter affidavit if he so desires. The provision is definitely not intended to wait indefinitely for such a defendant before going on with the action. Indeed, a defendant who fails to file counter affidavit within the stipulated time as the 2nd – 4th Defendants/Respondents in this case is deemed to have

abandoned his defence to the action and that would not stop the Court from considering the defence or any case including objections put forward by a defendant who has indicated his readiness for the action.
The Appellant definitely has no business on appeal to turn the failure of the 2nd –4th Defendants/Respondents to have abandoned their right to file counter – affidavits within the stipulated time to procedural advantage. A similar issue as the above arose in the case of INAKOJU v. ADELEKE (supra) where the Supreme Court held thus:
“On the subsidiary issue of fair hearing raised by the Defendants, to the effect that the trial was yet to be concluded in the trial Court, because they had not filed a counter – affidavit or a defence to the Plaintiff’s claims in the High Court, my simple answer is that, this was an after-thought on the part of the Defendants as the records clearly showed that they abandoned their right to file any defence or counter affidavit, when they proceeded to do other irrelevant things.”

Indeed, the law is that, a party who has or had every opportunity to present his case before the Court and who fails to

do so cannot be heard to complain of breach of his right to fair hearing. It is perhaps ridiculous as in this case where the complaint of the abandonment of pleadings by the 2nd – 4th Respondents is being raised on appeal by the Appellant, the supposed beneficiary of the abandonment of pleadings by 2nd – 4th Respondents.

Second, the learned counsel for the Appellant was not right to have posited that the correct procedure to be adopted in hearing originating summons where there is an objection to jurisdiction is that all parties must file their processes and the objection and the merit of the case taken together. Indeed, by the Appellant’s counsel showing what the Supreme Court said in the case ofADELEKE v. OYO STATE HOUSE OF ASSEMBLY (2006) 16 NWLR (Pt. 1006) 608 @ 771 is that where proceedings are commenced by originating summons, and an objection is taken to the jurisdiction of the Court, it is always neater, tidier, better and advisable that arguments be taken together with the substantive matter. See also, Uwais CJN inAMADI v. NNPC (2000) 10 NWLR (Pt. 674) 76 @ 100; SENATE PRESIDENT v. NZERIBE (2004) 9 NWLR (Pt. 878) 251 @ 272.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In other words, the Supreme Court in the above cases including the ones cited by the Appellant, laid down a rule of practice as to the idea of taking preliminary objections along with the substantive matter in matters filed under the originating summons procedure. This is understandable as the originating summons procedure deals with affidavit evidence which are usually non-contentious and such practice would definitely save precious judicial time.
In this appeal, it would seem that the Appellant has found it convenient to elevate that rule of practice to a rule of law even when it is apparent from the records that he consented and participated in the hearing of the preliminary objection which disposed of his suit on hearing of the objection.

Here again, the learned counsel for the 1st Respondent was right when he relied on the cases of AGBAKOBA v. I.N.E.C. (supra) and IBATOR v. BARAKURO (supra) to say that, where a party has adopted a procedure by consent, he will not be heard on appeal that the procedure he adopted is prejudicial to him or had occasioned a miscarriage of justice.

In the instant case the trial Judge was not in error to have

entertained the 1st Respondent’s preliminary objection by consent of the parties in coming to a decision on the Appellant’s case.

The sole issue in this appeal is resolved against the Appellant.

Having resolved the sole issue in this appeal against the Appellant, it is no longer necessary for me to deal with the 1st Respondent’s notice of intention.
This appeal lacks merit and it is accordingly dismissed.
Parties to the appeal are to bear their respective costs.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance, the draft of the judgment just delivered by my learned brother, Mojeed Adekunle Owoade, JCA and I agree that this appeal lacks merit ant should be dismissed. For the detailed reasons in the judgment, I too dismiss the appeal.

I abide by all other orders in the judgment including the order as to costs.

MUHAMMED LAWAL SHUAIBU, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, Mojeed A. Owoade, JCA. I agree that the appeal is bereft of any merit and ought to be dismissed.
I too dismiss the unmeritorious appeal.

Appearances:

A. WILLIAMS, ESQ. For Appellant(s)

C. AMAEFULE, ESQ. – For 1st Respondent For Respondent(s)