AMADI v. ONU & ORS(2017)

In The Court of Appeal of Nigeria

On Tuesday, the 23rd day of May, 2017

CA/OW/119/2015

Before Their Lordships

MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria


Between

EZE-ELECT. MAGNUS AMADI
(For himself & Repr. Emeke Agbala Village of Agbala in Owerri North L.G.A Excluding the 1st Defendant & his few supporters)  –Appellant

AND

1. CHIEF MALACHY ONU
2. OWERRI NORTH LOCAL GOVT. COUNCIL
3. MINISTRY OF COMMUNITY GOVT. COUNCIL & CHIEFTAINCY AFFAIRS
4. THE ATTORNEY GENERAL OF IMO STATE
5. THE GOVERNOR OF IMO STATE  –Respondents

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TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed on 7/5/2015 against the decision of Imo State High Court delivered on 27/4/2015.The Claimants claim at the lower Court was as per paragraph 38 of his statement of claim which stated thus:
a. A declaration that the claimant on record was lawfully identified, selected and appointed/installed as Eze-elect of Agbala Autonomous Community.
b. A declaration that under the Constitution of Agbala Community, Okenze C.A. Anyadike, Celestine Kamalu as members of Late Eze Onyenekes cabinet have no role, duty or function to perform in the identification, selection, election and installation of the Eze of Agbala Autonomous Community.
c. A declaration that under the Constitution of Agbala Autonomous Community, the tenure of the Ezes cabinet ends at the expiration of the one year mourning period of the late Eze.
d. A declaration that by the Community Council Administration Law No 1 of 2012, the defunct Ezes Palace not being officers of Agbala Autonomous Community Government Council cannot lawfully and validly 
conduct any election or selection of the Eze of Agbala Autonomous Community.
e. An order of Court rendering null and void any purported identification selection or election of the 1st defendant or any other person as Eze Elect of Agbala Autonomous Community organized by Okenze Anyadike and Celestine Kamalu and members of the defunct Eze Palace on the 18th of May 2013 or on any other date.
f. A declaration that in view of charge No OW/27C/91, wherein the 1st defendant is the 2nd accused person, the 1st defendant is a fugitive running away from justice and therefore by the Constitution, custom and tradition of Agbala people, he ought not be identified, selected and appoint as Eze-Elect of Agbala Autonomous Community.
g. Injunction restraining the 1st defendant from acting or parading himself as Eze or Eze-elect of Agbala Autonomous Community based on the purported election/selection organized by Okenze Anyadike and Celestine Kamalu of the defunct Ezes cabinet who lacked the capacity to do so.
h. Mandatory injunction directing the 5th defendant without hesitation and delay to recognize the claimant and issue him with certificate of 
recognition and staff of office as Eze and Traditional Ruler of Agbala Autonomous Community in the Owerri North LGA of Imo State.
The claim of the claimant was challenged vide a motion on notice filed on 8-2-14 urging the Court to strike out the suit for lack of jurisdiction.
The ground of the application was that:
a) The suit as presently constituted disclosed no reasonably cause of action in that the Governor of Imo State (5th Defendant) has not exercised the powers conferred on him under Section 7(1) of the Traditional Rulers Autonomous Communities and Allied Matters Law No.6 of 2006.
b) The Court has no jurisdiction to entertain the suit.

After hearing the parties on the said application, his Lordship gave a ruling as follows:
COURT: I have gone through the Notice of Preliminary Objection and the affidavit evidence of both parties. It is settled law that in an application of this nature, the claimants writ of summons and statement of claim should be looked at. I have perused the statement of claim of the claimant and the reliefs being claimed therein. I am also aware that the 1st

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defendant in this suit had a sister case Suit No. HOW/516/2013 wherein he as the claimant in that case brought an action against the claimant in this case and others. However, on 10/6/2014 the said suit No. HOW/5/16/2013 was discontinued by the 1st defendant/claimant. In the suit now before me, the said 1st defendant was one of the claimants in Suit No. HOW/516/2013. It is on record that the said suit No. HOW/516/2013 was discounted because the 5th defendant in this suit in the exercise of his statutory powers recognized the 1st defendant in this suit as the Eze or Traditional Ruler of Agbala Autonomous Community. In effect whether rightly or wrongly done by the 5th defendant, there is a recognized Eze or Traditional Ruler of Agbala Autonomous Community which is the 1st defendant in the present suit. Since there is a recognized Eze of Agbala Autonomous Community, can the reliefs of the claimant in the present suit be sustained in view of the fact that the 1st defendant has already been recognized by the competent body empowered by law to do so. See Section 7(1) of Law No. 6 of 2006. The answer is no.
I am therefore of the view that reliefs of the 
claimant in this suit have been overtaken by events. It therefore follows that the suit of the claimant has not disclosed any reasonable cause of action to warrant the Court to exercise jurisdiction to entertain same.
I therefore hold that the preliminary objection of the applicant is hereby upheld and accordingly this suit is struck out.

Dissatisfied with the above decision the appellant filed Notice of Appeal containing 5 grounds of appeal. The grounds of appeal are reproduced hereunder.
GROUNDS OF APPEAL
GROUND ONE MISDIRECTION

The learned trial judge misdirected himself in law when he abandoned the grounds upon which the preliminary objection was hinged and raised other grounds outside the submissions of the parties which grounds be used to decline jurisdiction and hold that there is no reasonable cause of action and thereby reached a wrong decision.
GROUND TWO ERROR IN LAW
The learned trial judge erred in law when he granted the 1st defendant/respondents preliminary objection striking out the suit which ruling infracted on the appellants right to fair hearing and thereby reached a wrong decision.
GROUND THREE ERROR IN LAW
The learned trial judge erred in law when he held that since there is a recognized Eze of Agbala Autonomous Community, the suit cannot be sustained as the 1st defendants/respondent has already been recognized by the competent body empowered by law to do so and thereby reached a wrong decision.
GROUND FOUR ERROR IN LAW
The learned trial judge erred in law when he held that the reliefs of the claimant in this suit have been over taken by event, and thereby reached a wrong decision.
GROUND FIVE ERROR IN LAW
The learned trial judge erred in law when it held that it had no jurisdiction to entertain the suit, contrary to the law, and thereby reached a wrong decision.
The record of appeal was transmitted to this Court on 8/7/15 after which parties filed and exchanged briefs of argument.
The appellants brief of argument was settled by V.C. Osuji, his counsel and filed on 10/9/15. Learned counsel nominated two issues for determination to wit.

…………………….C…………………….

1) Whether the Court below was wrong to have relied on the fact that the 1st defendant/respondent having been recognized by the 5th defendant/respondent there is no cause of action to warrant the Court to exercise its jurisdiction to entertain the suit.
2) Whether the Court below was wrong when it declined jurisdiction to entertain the suit on the ground that the 1st defendant/respondent had been recognized which ground was not canvasssed by the parties during hearing.
The 1st Respondents filed Respondents Notice on 3/6/15. The grounds relied upon in the Notice are-
1. It is settled law that in determining the issue of the competence of a suit or the jurisdiction of a Court to entertain a suit, the Court considers closely the averments in the statement of claim and the reliefs claimed therein and not any other extraneous material.
2. The trial Judge therefore erred in law when he went outside the facts contained in the claimants statement of claim to hold as part of his ratio decidendi that since the 1st defendant had been recognized, the 5th defendant had exercised his powers under Section 7(1) of Law No. 6 of 2006 when in fact there is no such averment that the 1st defendant has been recognized in the statement of claim.
3. The learned trial judge erred in law when he held as; part to his ratio decidendi that since there is a recognized Eze of Agbala Autonomous Community, the suit cannot be sustained as the 1st Defendant/Respondent has already been recognized by the competent body empowered by law to do so is not correct and not borne out by the statement of claim.
4. The Court cannot rely on facts not contained in the statement of claim nor can the Court rely on facts within his personal knowledge but outside the pleading of the claimant in reaching a decision on the issue of jurisdiction or any other decision.
5. The Respondent contends that the ratio decidendi should be that at the time the substantive suit was filed up till the time the preliminary objection was taken, the statement of claim disclosed no reasonable cause of action against the 5th Defendant because there is no allegation in the statement of claim indicating that the 4th Defendant had exercised the powers conferred on him by Section 7(1) of Law No. 6 OF 2006 in line with the decision in WABARA v. NNADEDE & 3 ORS (2010) ALL FWLR (Pt) 1171; MECHANT BANK LTD v. FEDERAL MINISTER OF FINANCE 1951 1 ALL NLR 598 @ 603.
6. The Respondent shall contend that the applicable principle of law to the facts contained in the statement of claim is that the claimants cause of action against the Governor arises only after the Governor has exercised his powers of recognition under Section 7 (1) of Law No.6 of 2006 in line with the decision in WABARA v. NNADEDE & 3 ORS (2010) ALL FWLR (PT)1171; ATTORNEY GENERAL OF ANAMBRA STATE v. OKAFOR (1992) 2 NWLR (PT.) 396 @ 419.
The 1st Respondent filed 1st Respondents brief of argument on 23/12/15. The said brief was settled by J. E. Okodogbe.
Learned counsel for the 1st Respondent also formulated two issues for determination to wit:
(1) Whether the learned trial Judge was right in upholding the objection of the 1st defendant striking out the suit for want of jurisdiction.
(2) Whether the learned trial Judge was right in relying on facts not contained in the statement of claim as reasons for his decision to strike out the suit for want of jurisdiction.

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The appellant filed a Reply Brief of argument on 4/2/2016. Learned appellants counsel challenged the issues formulated by the 1st Respondent in his brief because they were formulated outside the grounds of appeal in the Notice of Appeal. EZE v. FRN (1987) 1 NWLR (PT. 51) 506; EHIKHAMWEN v. IHUOBE (2002) FWLR (PT. 117) 1087 as 1096; ADIGUN v. AYINDE (1993) 8 NWLR (PT. 313) 516.
He submitted that the respondent ought to have cross-appealed instead of filing Respondents Notice. He cited EJURA v IDRIS (2006) ALL FWLR (PT. 318) 640, 667, OGUNBADEJO v OWOYEMI (1993) 1 NWLR (PT. 271) 51; ELIOCHIN NIG. LTD v MBADIWE (1986) 1 NWLR (PT 14) 47.
He argued that there was no Respondents Notice known to law before the Court and urged the Court to set the Respondents Notice aside.
I intend to first address the submission of learned counsel for the appellant in respect of the competence of the Respondents Notice filed by the 1st Respondent.
I have closely perused the Respondents Notice and the submissions of counsel. A Respondents Notice is filed in an appeal in this Court pursuant to Order 9 of the Court of Appeal Rules 2016.
Order 9 Rules 1 and 2 of the Rules state thus:
1. A Respondent who not having appealed from the decision of the Court below, desires to contend on the appeal that the decision of that Court should be varied, either in any event or in the event of the appeal being allowed in whole or in part, must give notice to that effect, specifying the grounds of that contention and the precise form of the order which he proposes to ask the Court to make, or to make in that event, as the case may be.
2. A Respondent who desires to contend on the appeal that the decision of the Court below should be affirmed on grounds, other than those relied upon by that Court, must give notice to that effect specifying the grounds of that contention.

I have viewed the Respondents notice filed in the light of the above Rules. It does not contest the final decision of the Court but the ratio decidendi. It has stated the grounds for urging this Court to affirm the decision on grounds other than those relied upon by the lower Court. The grounds do not throw up fresh issues that require leave of Court before an appeal can be filed on it. The Respondents issues formulated in his brief are based on the said grounds.
In EZE & ORS v OBIEFUNA & ORS (1995) 56 NWLR (PT. 404) 639. Mohammed J.S.C. explained the difference between variation of a judgment (which a Respondents Notice seeks) and cross appeal in this way:
There is difference between variation of a judgment and a cross appeal. In a Respondents Notice a party seeks to retain the judgment appealed from but at the same time wants it varied. It cannot be issued where a party wants a reversal of the judgment of the lower Court, as this can only be done by an appeal or cross appeal.
Also, in EMEKA v OKADIGBO & ORS (2012) LPELR-SC 69/2012 Rhodes Vivour J.S.C had this to say,

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Furthermore, a respondents Notice is filed where a respondent agrees with the judgment appealed against but wants it varied or affirmed on other grounds. A cross appeal and a respondents notice cannot co-exist. See ANYADUBA v NRT LTD (1990) 1 NWLR PT 127 P. 397.
I am of the view that the Respondents notice filed by the Respondent in this appeal is competent. The objection to the notice therefore fails.
I shall now consider the issues nominated by the Appellant and then the issues raised in the Respondents brief.
ARGUMENTS AND RESOLUTION OF ISSUES.
I have deeply considered the two issues nominated by learned counsel. I am of the respectful view that they can be condensed into one to wit:
Whether the learned trial Judge was right in upholding the objection of the 1st defendant by striking out the suit for want of jurisdiction.
This sole issue will also, to my mind, take care of the issue raised in the Respondents notice.
The root cause of this appeal is the Ruling made on the motion on notice filed by the Respondent at the lower Court challenging the competence of the claim of the claimant on ground of lack of jurisdiction.
The grounds at the risk of being repetitive are-
(i) The suit as presently constituted disclosed no reasonable cause of action in that the Governor of Imo State (5th Defendant) has not exercised the powers conferred on him under Section 7(1) of the Traditional Rulers Autonomous Communities and Allied Matters law No. 6 of 2006.
(ii) The Court has no jurisdiction to entertain the suit.
The claimant on the other hand in his claim contended in paragraph 34 and 35 of his statement of claim thus:
It shall be contended at the hearing that the 1st defendant who is said to emerge from the purported exercise of 18th May 2013, is not qualified to be a Traditional Ruler in Imo State under the relevant laws as he has a felonious charge hanging over his head and he has been running away from justice since 1991. Certified copy of the proceedings wherein the 1st defendant is the 2nd accused and the prisons report are hereby pleaded.
Apart from being identified, selected, appointed by his Agbala people and his presentation to the 2nd defendant, the claimant has been cleared by the Commissioner in charge of the 3rd defendant through a letter and in the said letter the claimant was directed to pay a total of N510,000 to the Imo State Government Remittance Account. The said letter is hereby pleaded. Also pleaded are the bank teller and the receipt for the said N510,000 issued by the officers of the 3rd defendant where the claimant was addressed as HRH.
The 1st defendant has not been presented to the 2nd defendant and 
has not been cleared by the 3rd defendant and yet he is mounting pressures on the 5th defendant through some powerful politicians to recognize him contrary to the law.
The 5th defendant following the herein stated pressure on him to recognize the 1st defendant, has

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become hesitant to proceed and give the claimant his deserved certificate of recognition and staff of office, hence this suit.
However in his Ruling, the learned trial Judge contrary to the positions of the parties and their respective addresses ruled as follows:
On 10/6/2014 the said suit No. HOW/516/2013 was discontinued by the 1st defendant/claimant. In the suit now before the said 1st defendant was one of the claimants in suit No How/516/2013. It is on record that the said suit No. HOW/516 was discounted because the 5th defendant in this suit in the exercise of his statutory powers recognized the 1st defendant in this suit as the Eze or Traditional Ruler of Agbala Autonomous Community.
The ruling of the learned trial judge violently conflicted with the claim of the claimant and respective submissions of counsel for the parties. The point clearly was taken up suo motu but without the parties being allowed to address the Court on it. What should the Court do in raising up issue suo motu? In OKOCHI & ORS v CHIEF ANIMKWOI & ORS (2003) 13 NSQR 517 at 540. Ogundare J.S.C. explained the position of law on this thus:
This Court has frowned in a number of cases on Courts taking up matters suo motu and resolving the disputes before them on such matters without calling on the parties to address on these matters.
In IRIRI & ORS v ERHURHOBARA & ANOR (1991) 2 NWLR (PT. 173) 252, Olatawura J.S.C explained it in another way thus:
If however a Court decided to raise an issue arising from the case but not raised by the parties, the Court must call on the parties to address the Court.
See also OJE v BABALOLA (1991) 4 NWLR (PT. 185) 267. Both counsel in their respective briefs argued that the issue was taken up suo motu by the lower Court without parties being allowed to address on it. The Appellants counsel, V.C. Osuji submitted in his brief that the decision of the lower Court to strike out the suit was perverse in that it was speculative, not based on evidence before it. He relied on FALODUN v OGUNSE (2010) ALL FWLR (PT 504) 1404, 1420 to urge the Court reverse the said decision. He also urged the Court to set aside the recognition of the 1st defendant/respondent to ensure compliance with the law and rules.
I need to state however that it is not in respect of every issue taken up suo motu that a Court must hear the parties before taking a decision. According to Tobi J.S.C. in EFFIOM & ORS v C.R.S.I.E.C. (2010) 14 NWLR (Pt 1213) 106.
The Court ought not to raise issue suo motu and decide upon it without hearing from the parties applies mainly to issues of fact. In some special circumstances the Court call raise (sic) in issue of law or jurisdiction sic suo motu and without hearing the parties decide upon it TUKUR v GOVERNMENT OF GONGOLA STATE (1989) 4 NWLR )PT. 117) 517 is instructive on this point . See also OMOKUAJO v F.G.N (2013) 3 S.C.N.J 384.
Rhodes Vivour J.S.C. in OMOKUAJO v F.G.N (supra) had this to say-
It is long settled that a judge would be wrong to decide on issues not raised by the parties without giving the parties a hearing. See EZEANYA v OKEKE (1995) 4 NWLR PT 388, 142, A.C.B PLC v LOSADA (NIG) LTD (1995) 7 NWLR PT. 405

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p.26, OJUKWU v YARADUA (2009) 12 NWLR (PT. 116) p.119. The need to give the parties a hearing when a judge raises an issue on his own motion or suo motu would not be necessary if –
(a) the issue relates to the Courts own jurisdiction
(b) both parties are/were not aware or ignored a statute which may have bearing on the case. That is to say where by virtue of statutory provision the judge is expected to take judicial notice. See Section 33 of the Evidence Act.
(c) when on the face of the record serious question of the fairness of the proceedings is evident.

The issue taken up by the learned judge suo motu in the instant case was what transpired in a case suit No. HOW/516/2013. According to the learned trial Judge.
It is on record that the said suit No HOW/516/2013 was discounted (sic) because the 5th defendant in this suit in the exercise of his statutory powers recognized the 1st defendant in this suit as the Eze of or Traditional Ruler of Agbala Autonomous Community.
Now a Court can take judicial notice of its record. See OSAFILE & ANOR v PAUL ODI & ANOR (1990) 2 NWLR (PT.137) 130. The learned trial judge took judicial notice of his record to decline jurisdiction. He therefore held as follows:
Since there is a recognized Eze of Agbala Autonomous Community, can the reliefs of the claimant in the present suit be sustained in view of the fact that the 1st defendant has already been recognized by the competent body empowered by law to do so. See Section 7(1) of Law No.6 of 2006. The answer is no.
I am therefore of the view that reliefs of the claimant in this suit have been overtaken by events. It therefore follows that the suit of the claimant has not disclosed any reasonable cause of action to warrant the Court to exercise jurisdiction to entertain same.

This decision in my respectful view cannot be faulted. I therefore resolve this issue in favour of the Respondents.
The appellant has urged the Court to set aside the recognition of the 1st defendant as it was done while an action was pending. I have gone through the record of proceedings the appellant did not so apply at the lower Court. He did not even urge it on the learned trial Judge. He has now raised it for the first time in this appeal without leave of Court. This cannot be allowed See OSUN STATE GOVERNMENT v DALAMI NIGERIA LTD (2007) ALL FWLR (PT. 365) 439 at 458; ODOM & ORS v PDP & ORS (2015) LPELR S.C 395/2013.
According to Oguntade JSC in DALAMIS case (supra)
An appellant wishing to raise a new or fresh matter on appeal must first seek and obtain the leave of the appellate Court concerned.
Having resolved the sole issue in the affirmative. I see no merit in the Respondents Notice. The pedestal on which it stood was the failure of the lower Court to hear the parties on a matter taken suo motu. This pedestal has collapsed with the resolution of the sole issue. The Respondents Notice is hereby dismissed for want of merit.
This appeal also lack merit, it is accordingly dismissed. Parties are to bear their respective costs.

…………………….H…………………….

MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I had the privilege of reading the draft of the lead judgment just delivered by my learned brother, Hon. Justice Tunde Oyebamiji Awotoye, JCA. I agree entirely with the views which he expressed therein and his conclusion that the instant appeal matter lacks merit. In this vein, I will also dismiss the appeal for the various reasons given in the said lead judgment.
Accordingly, the appeal is dismissed by me too. I also endorse the order made therein with regard to costs.
ITA GEORGE MBABA, J.C.A.: I agree.

Appearances

V. C. Osuji. For Appellant

AND

J.E. Okodogbe with him, Anyanwu (Miss) and S. A. Akpanke for 1st Respondent.

2nd – 5th Respondents served Hearing Notice. For Respondent.

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