AFUWAH v. NWAUKONI & ORS (2018)

In The Court of Appeal of Nigeria

On Tuesday, the 26th day of June, 2018

CA/B/203A/2016

Before Their Lordships

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria


Between

COLLINS UCHE AFUWAH Appellant(s)

AND

1. CHIEF MIKE CHUKWUKA NWAUKONI
2. HRM OBI (PROF) CHUKWUKA OKONJO
(Obi of Ogwashi-Uku)
3. THE HON. COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS
4. THE ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE, DELTA STATE. Respondent(s)

…………………….A…………………….

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant was the 1st defendant in an action instituted by the 1st respondent in the High Court of Delta State sitting at Ogwashi-Uku. In the said suit, the 1st respondent claimed in paragraph 29 of the statement of claim as follows:a. A declaration that any registration/purported listing of the 1st defendants name in the register of Recognised Chiefs of Delta State Government and/or Official Gazette of Delta Government is null, void and of no effect, there being a pending appeal at the Supreme Court on who is the legally installed Iyase of Ogwashi-Uku Kingdom which has not been determined in favour of any party.
b. A declaration that the entering of the 1st defendant name as the Iyase of Ogwashi-Uku Kingdom in the register of Recognised Chiefs in Delta State and/or Official Gazette of Delta State by the 3rd Defendant is preemptive, null, void and of no effect the appeal filed by the 1st defendant challenging the validation of the installation of the claimant as the substantive Iyase of Ogwashi-Uku Kingdom not having been determined.
c. An Order of this Honourble Court restraining the 1st and 2nd defendants whether by themselves, their agents, privies and servants from holding out or parading the 1st defendant as the Iyase of Ogwashi-Uku Kingdom until determination of the appeal pending before the Supreme Court of the Federal Republic of Nigeria on who is validly installed Iyase of Ogwashi-Uku.
d. An Order of the Honourable Court restraining the 3rd defendant, his privies or servants from recognising and/or registering or listing the name of the 1st defendant or anyone else in the Register of Recognised Chiefs in Delta State and/or Official Gazette of the Delta State Government as the Iyase of Ogwashi-Uku until determination of the appeal filed by the 1st defendant at the Supreme Court challenging the validity of the claimant as the substantive Iyase of Ogwashi-Uku Kingdom.
e. An Order of this Honourable Court directing the 3rd defendant, his privies, agents or servants to immediately delist/expunge the 1st defendants name from the register of Recognised Chiefs in Delta State/Official Gazette of Delta State Government where such registration exists, there being a pending 
appeal before the Supreme Court on who is validly installed Iyase of Ogwashi-Uku between the claimant and the 1st defendant.
f. An Order of mandatory injunction directing the 3rd defendant, his cronies, subordinates, and/or anyone else having authority to register Chieftaincy in Delta State to forthwith deregister and/or expunge the 1st defendants name from the register of Recognised Chiefs in Delta State and/or Official Gazette of Delta State Government as any registration in disregard of the pending appeal before the Supreme Court will be null, void and of no effect.

The appellant entered appearance and filed his statement of defence spanning pages 181 to 185 of the record of appeal. The 2nd respondent, who was the 2nd defendant in the said suit HRM Obi (Prof.) Chukwuka Aninshi Okonjo (Obi of Ogwashi-Uku) also filed a statement of defence in which he included a counterclaim.
The 1st respondent filed a motion on notice on 12/08/2015 in which he prayed the trial Court for an order setting down for argument points of law raised in paragraphs 19, 20, 21, 25, 26 and 27 of his statement of claim. That application was granted by the Court below on 21/01/2016.
On the 12th day of August, 2015, the 1st respondent also filed a notice of preliminary objection wherein he sought an order striking out and/or dismissing the 2nd defendant/respondents counter claim dated 15th day of June, 2015 as constituted in that this Honourable Court lacks jurisdiction to

…………………….B…………………….

entertain same.
The points of law raised by the 1st respondent in his statement of claim and his preliminary objection to the counterclaim of the 2nd respondent were taken and heard together. In a ruling delivered on 02/02/2016, the trial Court stated as follows:
This Court will adopt the following issues in resolving the two applications:
1. Whether the claimant/applicant has made out a case based on the points of law raised in paragraphs 19, 20, 21, 25, 26 and 27 of the statement of claim to entitle it to the reliefs sought in his statement of claim.
2. Whether this Honourable Court lacks jurisdiction to enter and determine the reliefs sought by the 2nd defendant in his counter claim.

After resolving the two issues in favour of the 1st respondent, the Court held and concluded as follows:
This action succeeds. It is the order of this Court as follows:
1. Any registration/purported listing of the 1st Defendants name in the Register of Recognized Chiefs of Delta State Government and/or Official Gazette of Delta Government is null, void and of no effect, there being a pending appeal at the Supreme Court on who is the legally installed Iyase of Ogwashi-Uku Kingdom which has not been determined in favour of any party.
2. The entering of the 1st Defendants name as the Iyase of Ogwashi-Uku Kingdom in the Register of Recognized Chiefs in Delta State and/or Official Gazette of Delta State by the 3rd Defendant is preemptive, null, void and of no effect the appeal filed by the 1st Defendant challenging the validation of the installation of the Claimant as the substantive Iyase of Ogwashi-Uku Kingdom not having been determined.
3. The 1st and 2nd Defendants, whether by themselves, their agents, privies and servants are restrained from holding out or parading the 1st Defendant as the Iyase of Ogwashi-Uku Kingdom until determination of the appeal pending before the Supreme Court of the Federal Republic of 
Nigeria on who is validly installed Iyase of Ogwashi-Uku.
4. The 3rd Defendant, his privies or servant are restrained from recognizing and/or registering or listing the name of the 1st Defendant or anyone else in the Register of Recognized Chiefs of Delta State Government and/or Official Gazette of Delta Government as the Iyase of Ogwashi-Uku until determination of the appeal filed by 1st Defendant at the Supreme Court challenging the validity of the claimant as the substantive Iyase of Ogwashi-Uku Kingdom.
5. The 3rd Defendant, his privies, agents or servants are directed by this Court to immediately delist/expunge the 1st Defendants name from the Register of Recognized Chiefs of Delta State Government and/or Official Gazette of Delta Government where such registration exists, there being a pending appeal before the Supreme Court on who is validly installed Iyase of Ogwashi-Uku between the Claimant ad the 1st Defendant.
6. The 3rd Defendant, his cronies, subordinates, and/or anyone else having authority to register Chieftaincy in Delta State are to forthwith deregister and/or expunge the 1st Defendants name from the 
register of Recognized Chiefs of Delta State Government and/or Official Gazette of Delta Government as any registration in disregard of the pending appeal before the Supreme Court will be null, void and of no effect.
7. The Counter-claim fails because this Court lacks jurisdiction to determine the reliefs sought by the 2nd Defendant in his counter-claim.

The 2nd respondent in this appeal was not satisfied with the decision of the lower Court and he

…………………….C…………………….

appealed against it in Appeal No. CA/B/203/2016. In the said appeal, the 2nd respondent formulated the following issues for determination:
1. Whether the lower Court was right to have declined jurisdiction to entertain and determine the appellants counter-claim on the ground that the reliefs sought therein are on all fours with the reliefs sought and obtained in Suit No. O/9/2005.
2. Whether the lower Court was right to have granted the reliefs sought by the respondent without taking or hearing evidence from the parties.
3. Whether the trial Courts grant of the reliefs sought by the respondent in the statement of claim without considering the averments in the 
appellants statement of defence sufficiently or at all or giving the appellant the opportunity to presenting his defence is not a breach of the appellants right to fair hearing.
4. Whether the lower Court was right to grant the reliefs sought by the respondent in his statement of claim without a prayer to that effect and without first giving the appellant the opportunity to address it on the propriety or otherwise of granting same.
5. Whether the lower Court was right to have raised, suo motu, the issue of whether the respondent made out a case based on the points of law raised in paragraphs 19  21 and 25 27 of the statement of claim to entitle him to the reliefs sought in the statement of claim and resolved same in favour of the respondent without first calling on the parties to address it on the issue.
6. Whether it is the Supreme Court where Appeal NO. SC/55/2011 is pending that has jurisdiction to entertain the complaint made by the respondent in this suit and make any order/s it deems necessary to maintain the integrity of the appeal before it and ensure that the parties thereto do not take any action that 
would render whatever decision it would arrive at nugatory.
The 1st respondent in this appeal was the sole respondent in Appeal No. CA/B/203/2016 and he identified the following issues for determination in the said appeal:
i. Whether having regard to the peculiar circumstances of this case, the learned trial judge was right in setting down the issues of law raised in paragraphs 19, 20, 21, 25, 26 and 27 of the respondents statement of claim for hearing and finally determining the suit by granting the reliefs sought by the respondent in his statement of claim without calling for oral evidence?
ii. Whether the learned trial judge was wrong to have declined jurisdiction to entertain the counter-claim of the appellant as presently constituted and conceived and by so doing denied the appellant the right to fair hearing

In this appeal, learned counsel for the appellant identified three issues for determination as follows:
1. Whether the lower Court was right when it granted the 1st respondents (claimant in the lower Court) principal reliefs without evidence led, having regard to the fact that the principal reliefs are all declaration of rights. (Ground 1).
2. Whether the appellants constitutional right of fair hearing was not breached as the proceedings in the lower Court did not allow the appellant to present his case, nor given the opportunity to cross examine the 1st respondent (Ground 3).
3. Whether the parties in this case are the same with the parties in Appeal No. SC/55/2011, if no, whether the decision in B/CA/94/2009 is binding on the 2nd respondent. (Ground 2).

On behalf of the 1st respondent, two issues were distilled by learned counsel as follows:
I. Whether having regard to the peculiar circumstances of this case, the learned trial judge was right in setting down the issues of law raised in the respondents statement of claim for hearing and finally determining the suit by granting the reliefs sought by the respondent therein without calling for oral evidence and by doing denied the appellant the right to fair hearing? (Distilled from grounds

…………………….D…………………….

1 & 3).
II. Whether the learned trial judge was right relying on the Court of Appeal judgment in Appeal No. B/CA/94/2009 in upholding the preliminary objection of the respondent? (Distilled from ground 2).

For the determination of this appeal, I adopt the two issues formulated by Prof. Oludayo G. Amokaye, learned counsel for the 1st respondent, because they are concise and precise and they adequately cover the appellants grounds of appeal.
I wish to state that the issues framed by the 1st respondent in this appeal are basically the same in context and content as those he distilled in Appeal No. CA/B/203/2016. In Appeal No. CA/B/203/2016 I also adopted the issues as identified by learned counsel for the 1st respondent to determine it.
I have just delivered judgment in Appeal No. CA/B/203/2016 between: H.R.M. OBI (PROF.) CHUKWUKA ANINSHI OKONJO v. CHIEF MIKE NWAUKONI an appeal against the same judgment of the trial Court appealed against in this matter. As a fact, the appellant here and the appellant in Appeal No. CA/B/203/2016 were defendants to the 1st respondents suit in the trial Court.
All the issues identified by the appellant in the instant appeal have been duly considered and determined in Appeal No. CA/B/203/2016, which was the first appeal to be filed against the decision of the trial Court. Since all the issues and questions have been dealt with in the earlier judgment of this Court, this appeal has become academic, as the issues in the appeal are already spent. In a situation similar to this appeal, this Court, in the case of The National Boundary Commission v. Attorney-General of Ondo State & 15 Ors. (2015) LPELR  CA/B/135A/2008 (CA) at 4, per Saulawa, JCA stated thus:
In view of the fact that the substantive appeal has been conclusively determined and dismissed by this Court just a moment ago, the instant cross-appeal has become nugatory and rather a sheer wasteful exercise. In substance, the same issues or points of law raised in the present cross-appeal have been extensively dealt with and determined in the main appeal (CA/B/135/2008). The parties were equally the same parties in both the main appeal and the cross-appeal. Thus, the decision in the main appeal in question (CA/B/135/2008) binds the cross-appeal (Cross-Appellants). See OKOROCHA VS. OHAKIM (2014) LPELR  22057 (SC); OKOROCHA VS. PDP; (2014); LPELR  22058 (SC).
The foregoing position of the law remains the same where sister appeals are filed against one and the same judgment, as in this case. See Standard Chartered Bank Nigeria Limited v. Kasmal International Services Limited & 23 Ors. (Appeal No. CA/L/437A/2014), Unreported delivered on the 21st day of April, 2016.
The law is settled that a Court of law does not expend its precious judicial time entertaining and determining academic issues or questions. See Overseas Construction Co. Nig. Ltd v. Creek Enterprises Nig. Ltd (1985) 3 NWLR (Pt. 13) 407; Dalek Nigeria Limited v. Oil Mineral Producing Areas Development Commission (2007) 7 NWLR (Pt. 1033) 402; Amalgamated Trustees Limited v. Associated Discount House Limited (2007) 15 NWLR (Pt. 1056) 118 and Federal Republic of Nigeria v. Senator Adolphus N. Wabara & 2 Ors. (2013) 5 NWLR (Pt. 1347) 331.
This appeal, in view of what I have stated, has become academic, and it is hereby struck out.
However, in case I am wrong in holding that the appeal has become academic, I adopt the reasoning and conclusions in Appeal No. CA/B/203/2016 and hold that this appeal shall abide the decision in Appeal No. CA/B/203/2016.

…………………….E…………………….

The decision of the trial Court upholding the claimants/1st respondents points of law and granting the reliefs sought by him in Suit No. O/11/2015 is hereby set aside.
The decision striking out the 2nd defendants/2nd respondents counterclaim in Suit No. O/11/2015 is hereby upheld.
Suit No. O/11/2015 between CHIEF MIKE CHUKWUKA NWAUKONI v. COLLINS UCHE AFUWAH & 3 ORS is hereby remitted to the High Court of Delta State, which upon a directive of the Honourable Chief Judge of Delta State shall be heard and determined on its merits, without the 2nd defendants/2nd respondents counterclaim, by any Judge other than Okpu, J.
There is no order for costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the opportunity of reading before now the lead judgment just delivered by my learned brother M.A.A. ADUMEIN, JCA.
The reasoning and conclusion contained therein are quite apt, succinct and in tandem with the relevant laws and authorities on the issue in contention. I have nothing extra to add and I agree that the Appeal succeeds in part. I also allow same in part.
I abide by the consequential orders made in the lead judgment inclusive of that of costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother,. MOORE ASEIMO ABRAHAM ADUMEIN, JCA, adopting the reasoning and conclusion in appeal No. CA/B/203/2016 and that the appeal shall abide by the decision in appeal No. CA/B/203/2016.
Therefore, I allow the appeal in part and abide by the consequential orders including that for cost.

Appearances

A. Irogbo, Esq. For Appellant

AND

Prof. O. G. Amokaye with him, C. A. Uzomah (Miss) and V. O. Nobei, Esq. for the 1st respondent.
G.I. Ugbechie, Esq. for the 2nd respondent.
C. O. Agbagwu, Esq. (Assistant Director of Appeals, Delta State Ministry of Justice) for the 3rd and 4th respondents. For Respondent.

Leave a Reply

Your email address will not be published. Required fields are marked *