Mr. Benson Nze V. Sir Dom Aribe (2016)
LawGlobal-Hub Lead Judgment Report
ITA GEORGEMBABA, J.C.A.
Appellant filed this appeal against the judgment of the Imo State High Court, in Suit HOW/311/2013, delivered on 9/10/2013 by Hon. Justice Duruoha-Igwe, wherein the trial Court granted the reliefs sought by the claimant (now Respondent) in his Originating Summons.
At the Lower Court the claimant had posed the following questions for determination:
1. Whether by the provisions of Okwu Uratta Improvement League (OUIL) Constitution, the tenure of Office of the Defendant and the Executive members elected with him in 2008 has not expired, having served for three years from December 26th 2008 to December 26th 2011.
2. Whether the Defendant and the Executive members elected with him on 26/12/2008 by the convention of the Okwu Uratta Improvement League can validly remain in office after 26/12/2011.
3. Whether the Executives of Okwu Uratta Improvement League led by the Defendant was officially dissolved by the decision of the League on the 8th day of April 2012
4. Whether by the Constitution and decision of Okwu Uratta Improvement League election of 8/4/12 and
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26/12/12 respectively, the Claimant has not been duly elected as the President-General of the League with other Executive members.
Upon the determination of the above questions, the Claimant sought the following reliefs:
(a) A declaration that the tenure of office of the Defendant, a President-General with the Executive members elected with him on 12th December 2008, by virtue of the Constitution of Okwu Uratta Improvement League expired on December 26, 2011.
(b) A declaration of the Court that by the decisions of Okwu Uratta Improvement Leagues elections of 8/4/2012, and ratified in the convention of 26/12/12, the Executives led by the Defendant was properly and duly dissolved.
(c) A declaration of the Court that by the Constitution and decisions of the said League on 8/4/12 and 26/12/2012, the Claimant and members of Executives elected with him on 8/4/12 are the legitimate executive body of the league.
(d) An order of perpetual injunction restraining the Defendant and the other executive members elected with him from further parading themselves as President-General and executive members of Okwu Uratta Improvement League,
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respectively.
(e) An Order of the Court on the Defendant to officially hand over and release all the property of the league in his custody or under his control to the Claimant immediately.?
The trial Court, after taking evidence of the parties (as per their affidavits) and considering the addresses by Counsel had ruled in favour of the Claimant, that:
?By Exhibit ?B? (the Constitution of Okwu Uratta Improvement League) their (Defendant and his executive) tenure was to last for 3 years which tenure expired in December 2011. That upon the expiration of their office, the League in its convention proceedings, held on 8/4/12 formally dissolved the executive led by the Defendant ? Following the disolution, the Okwu Uratta Improvement League, in the same Easter Convention proceedings elected new set of executives, comprising the claimant and others. The Defendant in their counter affidavit did not challenge these averments. He only complained that the dissolution was done during the pendency of the two suits ? Defendant also complained that it was the caretaker committee set up by the Defendants in HOW/35M/12 that
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dissolved his executive, but I also found that it was not so; that a convention of Okwu Uratta Improvement League did so ? I am satisfied that Defendant led executives was officially dissolved by the decision of the League on 8/4/12. Immediately after the dissolution, claimant and members of his executive were elected into office ? see Exhibit ?C? and ?D? ? being minutes of the Convention of Okwu Uratta Improvement League, held on 8/4/12 and 26/12/12 respectively, where Claimant led executives were elected and ratified.?
That is the judgment Appellant appealed against, as per his notice and grounds of appeal, filed on 11/11/2013, on pages 216 to 218 of the Records of Appeal, which disclosed a sole ground of appeal. Appellant however, amended the Notice of Appeal, with the leave of this Court, granted on 15/2/16, which disclosed three grounds of appeal on which this appeal is premised, as per Appellants Brief of arguments. The Issues distilled from the 3 grounds of appeal were as follows:
(1) Whether the establishment of Community Government Councils by the Imo State Law No. 1 of 2012, cited as Imo
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State Autonomous Community Councils Administration Law, gazetted on 21st August 2012, did not proscribe the office the President-General of Town Unions in Imo State? (Ground 1)
(2) Whether Okwu Uratta Improvement League is a juristic person? (Ground 2)
(3) Whether the Lower Court has the jurisdiction to uphold the Respondents election of 8/4/12 as the President-General of Okwu Uratta Improvement League, an unregistered Town Union operating illegally in Imo State, and back same with a Court Order? (Ground 3)
The Respondent filed a preliminary objection to the hearing of the appeal on 24/4/2015, which the Counsel for Respondent argued in his brief, filed on the same 24/4/2015 page 5 to thereof. The Respondent, on the main appeal, raised three issues for the determination of the appeal, namely:
(1) Whether Appellant can in this appeal raise issues not raised and canvassed at the Lower Court.
(2) Assuming, this appeal is competent, whether the parties in this suit are juristic persons.
(3) Whether the office of the Respondent as President of the Improvement League was proscribed by the Imo State Law No. 1 of 2012.
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Appellant filed two Reply briefs, on 4/6/15 to contest the preliminary objection and to reply to the Respondents Brief on the main appeal on points of the Law. The latter was deemed duly filed on 15/2/16.
Arguing the Preliminary Objection, Chief C. C. Onyeagbako, learned Counsel for the Respondent, submitted that the appeal was incompetent, because, the grounds of appeal complained of matters/issues not contained in the judgment appealed against; he said that for appeal to be competent, the grounds must primarily complain about the decision of the Court against whose judgment the appeal lies. He relied on the Supreme Court decision in OSIEC vs. Action Congress & Ors (2012) 8 NSCR 36 at 80; Nnakwe vs. State (2014) ALL FWLR (pt. 716) 414 at 456; Efet vs. INEC (2011) ALL FWLR (pt. 565) 203 at 222; First Bank of Nigeria Plc vs. TSA INDUSTRIES LTD (2010) 11 NSCR 1 at 40.
Counsel submitted that the grounds of appeal in this case have no nexus with the judgment appealed against; that the appeal does not challenge any findings of the trial Court. He urged us to take a close look at the grounds of appeal that they all point at the
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same thing that the judgment ran counter to the Imo State Law No. 1 of 2012 and that the trial Court did not take judicial notice of same before arriving at its decision. Counsel said that the facts and issues raised and argued at the trial Court had nothing to do with the said Law, and that it was not raised at the trial. He added that the said Imo State Law No. 1 of 2012 does not even apply to village unions but to Autonomous Communities.
On the effect of failure of an Appellant to complain or appeal against the decision of the Court, Counsel relied on the case of Tomtee Nig. Ltd vs. Fed. Housing Authority (2010) 3 NSCR 146 at 162, where the Supreme Court said:
It is settled law that where a party fails or decides not to appeal against any decision of a Court of Law, he is deemed to have accepted that decision and is consequently bound by it!
Counsel also relied on Odunze & Ors vs. Nwosu & Ors (2011) 10 NSCR 110 at 130; First Bank of Nigeria Plc vs. TSA Industries Ltd (supra) and Kolawole vs. Alberto (1989) 2 SCL pt. 11 187 and asked us to strike out the appeal; that the notice is vitiated for the above reasons.
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He also relied on Adekeye & Ors vs. Adesina & Ors (2011) NSCR 63 at 78; Olufeagba & Ors vs. Abdul-Raheem (2010) 4 NSCR 1 at 36.
Replying, Appellant?s Counsel, C. O. Odorogbuo Esq said that the Respondent?s claim that the appeal borders on an entirely new action is baseless; he said that perhaps Appellant and his Counsel had lost sight of the fact that the non-fulfilment of a condition precedent prescribed by law, and the Respondent?s lack of locus standi are issues of jurisdiction, which can be raised by the Appellant at any time, in a trial, and even for the first time at the Supreme Court. He argued that the appeal was competent as ground 2 raised issue of non-fulfilment of the condition precedent, that is of not registering the Okwu Uratta Improvement League (a town union) in accordance with Imo State Law No. 6 of 2006 (Imo State Traditional Rulers and Autonomous Community Law 2006); he said that Appellant was talking of the above law, not Imo State Law No. 1 of 2012, erroneously cited by the Respondent.
?He argued that ground 3 raised Issue of locus standi to sue in the capacity Respondent did ? as
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President-General of the League ? a town union, which has no existence in the eye of the law. He relied on Ogbuehi vs. Governor of Imo State (1995) 9 NWLR (pt. 47?) 53; Adesola vs. Abidoye (1999) 14 NWLR (pt. 637) 28; Lawal vs. Oke (2001) 7 NWLR (pt. 711) 88. Counsel further argued that no past or present leaders of Okwu Uratta Improvement League fulfilled the condition president, of registering the town union in accordance with the law, thereby robbing the Court of jurisdiction to hear and determine the Respondent?s suit. He relied on Madukolu vs. Nkemdilim (1962) 2 SCNLR 341. He added that no Chairman or President of Okwu Uratta Improvement League, since 1939 when the League came into existence, till date, took steps to register the town union in accordance with Sections 31, 32(1), 33(1),(2),(3) and 34(1) of the Imo State Law No. 6 of 2006, cited as Imo State of Nigeria Traditional Rulers and Autonomous Communities Law 2006, or under any other law.
?Counsel queried: What will the Court do when it is discovered that the parties and their executives ignorantly have been running the Okwu Uratta Improvement League in breach of the Law, by not
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registering it? Of course, he failed to answer the question, but submitted that Respondent lacked locus standi to sue the Appellant in the circumstances, as his capacity of President ? General of the league, was founded on nothing! He said that the Respondent had no place to stand when he sued the Appellant, seeking the powers/rights he allocated to himself as President-General of the Improvement league; that the platform on which he stood to sue did not exist and is not recognized by law. He urged us to dismiss the Preliminary objection.
RESOLUTION OF THE PRELIMINARY OBJECTION
The Respondent?s main objection to the appeal is founded on the legal point that none of the grounds of appeal/issue derived from or related to the judgment appealed against; that the grounds/issues were not raised or canvassed at the trial at the Lower Court, but are fresh issues in this appeal. Appellant?s answer to that appeared to be a concession, but he argued that the grounds/issues touch on jurisdictional matters, which can be raised at any time, even on appeal, for the first time.
?The grounds of Appeal formulated by the Appellant in the Amended
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Notice of Appeal, were as follows (without their particulars):
1. The Lower Court erred in law, when it failed to appreciate and apply Imo State Law No. 1, 2012, which proscribed the offices of President-General, Secretary, Treasurer, Provost, etc. of Town Unions in Imo State, and the subsequent Imo State Government establishment of Community Government Council (C.G.C.) to run the affairs of same, when it gave a perverse and unenforceable judgment in favour of the Respondent on 9/11/2013.
2. The trial Court erred in law, when it assumed jurisdiction over the Suit and gave judgment on 9/11/2013, upholding the Respondent election on 8/4/2012 as the President-General of the Okwu Uratta Improvement League, an unregistered Town Union in Imo State.
3. The Honourable Lower Court erred in law when it adjudicated upon and gave judgment on 9/11/2013 in an incompetent Suit brought by the Respondent, who lacked the locus standi to institute same.
None of the above grounds/issues was raised and/or considered by the Lower Court in the judgment appealed against, and so the issue of Imo State law No. 1 of 2012 (said to be Imo State Autonomous
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Community Councils Administration Law, gazetted on 21st August 2012), which allegedly established Community Government Councils to run the affairs of Town Unions in Imo State, and/or the Imo State Law No. 6 of 2006 (Imo State of Nigeria Traditional Rulers and Autonomous Communities Law) thrown up in this appeal, were raised for the first time in this appeal, they cannot therefore be said to be valid grounds of appeal against the judgement appealed against, since the Learned Trial Court had no opportunity of considering any issue related to the said law(s) as the said grounds of appeal were never contemplated in the judgement appealed against.
This point seems to have enjoyed some notoriety in the law governing appellate proceedings, that the grounds of appeal and/or issues for determination of appeal, must relate to and flow or derive from the judgement appealed against, touching on the ratio decidendi. See Anozia vs Nnani & Anor (2015) LPELR -24277 (CA); (2015) 8 NWLR (pt. 1461) 241, were it was held:
The law is trite, that an appeal (the grounds and issues therefrom) must be founded on and derived from a valid complaint touching on the
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ratio decidendi (life issue) of the decision appealed against. See the case of Obosi vs. NIPOST (2013) 21397 CA; UNILORIN vs. Olawepo (2012) 52 WRN 42; Alataha vs. Asin (1999) 5 NWLR (pt. 601) 32; Punch Nig. Ltd vs. Jumsun Nig. Ltd (2011) 12 NWLR (Pt. 1260) 162.
Also in Key Stone Bank Ltd vs Oyewale (2014) LPELR -23612 (CA), this Court held:
The law is well settled that a ground of Appeal or issue distilled therefrom must derive and flow from the judgment appealed against, to be valid. The cases on this are all over the place . . . and the reason for this position is not farfetched, the issue being that, it will be unfair or unjust to accuse the trial Court, that it erred (as is the usual language of Appellant in faulting the judgment of the trial judge) when the issue the judge is accused of was not even raised or canvased by the parties for the Lower Court to consider in its judgment. Every appeal is a fault-finding with the judgment appealed against, and so where a matter was not raised and considered by the Court, it cannot form part of the judgment on appeal. See also Ossai vs. FRN (2013) WRN 87; Shettima vs. Goni (2012) 18 NWLR
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(pt. 1297) 413.
Appellant had argued that the point raised touched on the jurisdiction of the Court, which can be raised at any time, even on appeal. Even then, I think, in a situation like this, wherein the grounds and issues raised on appeal, touched on applicability of some law, which appellant never cited in the case and same was not related to the case, nor contemplated in the judgment of the trial Court, Appellant cannot just raise it, on appeal, as a matter of course, without seeking and obtaining the leave of Appellate Court to raise the same, as a fresh issue. It is true and trite law as is stated Key Stone Bank Ltd vs. Oyewale (Supra) that:
?There is, however, an exception to this strict principle, where the point of law in issue touches on the jurisdiction of the trial Court to entertain the suit in the first place, and this is so, because issue of jurisdiction can be raised at any time even at the Supreme Court without need to obtain leave of the Appellate Court to do so. See the case of AGBITI vs. NIGERIAN NAVY (2011) 4 NWLR (pt.1236) 175 at 207 and NNPC vs. Orhiowasele (2013) 13 NWLR (pt. 1371) 211.
There are circumstances
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when the above principles of law cannot apply especially where the alleged issue of jurisdiction is meant to present a different case on appeal, from what was tried at the Lower Court for which the judgment was made.
Thus, where an issue on appeal touches on a question not raised/or not considered by the trial Court in the judgment but is material for consideration and determination of the appeal, the Appellant has a duty to seek and obtain the leave of the Appellate Court to raise the issue, as fresh issue for consideration by the Appellate Court. Keystone Bank Ltd VS Oyewale (Supra); Attorney Gen. Oyo State vs. Fair Lake Hotel Ltd (1988) 5 NWLR (pt.92) 1; Ukpong vs. Com. of Finance and Economics Dev. Aks (2007) ALL FWLR (pt.350) 1246; CPC vs. INEC (2012) 29 WRN 1 at 4; Olagunju vs. PHCN Plc (2011) ALL FWLR (pt. 583) 1635; Garba vs. Omokhodiom (2011) ALL FWLR (pt. 596) 404.
In the case of Olawiye vs. Ogunsanya (2013)5 NWLR (pt.1348) 570, the Supreme Court held that it is not acceptable to raise an issue of jurisdiction, the first time, in an appellate Court, unless and until leave has been sort and obtained by an applicant. See Federal Polytechnic
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Bauchi & Anor vs. Aboaba & Anor (2013) LPELR.
Appellant, in his argument against the preliminary objection, had said:
?My Lord, the Respondent?s claim that the appeal borders on an entirely new action is baseless. Perhaps, he or his Counsel lost sight of the fact the non-fulfilment of a condition precedent, prescribed by law, and the Respondent?s lack of locus standi are issues of jurisdiction, which can be raised by the Appellant at any time in a trial, even for the first time, at the Supreme Court.? (Paragraph 2.01 of the Reply, filed on 4/6/15).
Counsel also said;
?Appellant, in Ground 2 of the amended notice of appeal, raised the issue of jurisdiction, anchored on the non-fulfilment of the condition precedent of registering the Okwu Uratta Improvement League, (a Town Union) in accordance with the Imo State Law No. 6 of 2006, cited as Imo State Traditional Rulers and Autonomous Community Law, 2006. The Appellant is talking of the above law and not Imo State Law No. 1 of 2012 erroneously cited by the Respondent?s Counsel.?
?As earlier stated, Appellant never raised or cited these laws
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at the trial. He only resorted to them after the judgment, when he took out a motion for interlocutory injunction to frustrate the judgment given to the Respondent. He sought to rely on that law to stop the Respondent. It is obvious, from the above, that Appellant?s jurisdictional issue, raised for the first time in this Court, had to do with alleged non-fulfilment of the condition precedent, that is, non-registration of the Association (the league), (which he once served as President ? General and was still struggling to serve) with the Imo State Law, made in 2012, and yet he claimed the Association (Okwu Uratta Improvement League) has been in existence, since 1939. He also alleged lack of locus standi by Respondent to maintain the action.
Certainly, such issues cannot be raised on appeal, for the first time, without the seeking and obtaining the leave of the Appellate Court, especially as Appellant was not even certain as to the actual law he was going to rely on! In ground 1 of the appeal, Appellant placed reliance on ?Imo State Law No.1 of 2012 ? which proscribed the offices of President-General, Secretary, Treasurer, Provost
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etc. of Town Unions in Imo State and the subsequent Imo State Government establishment of Community Government Council (C.G.C.) to run the affairs of same?; he said that the trial Court failed to appreciate and apply it (in the judgment, even when same was not cited!). But in his argument, he said he meant Imo State Law, No.6 ? Traditional Rulers and Autonomous Communities Law, 2006, as the law Respondent failed to comply with ? to register the League, which had been operational, since 1939!
I have not seen anywhere in the records of appeal, where Appellant made reference to the said laws or any of them at the trial, to draw the attention of the trial Court to them or indicate the relevance of the said Law(s) to the case of the Respondent at the Lower Court. It is even preposterous and mischievous, in my view, for Appellant to seek to invoke the said law(s) as condition precedent, to be complied with, i.e. the registration of the League, as a condition to seeking redress by the Respondent! Registration of the League was not an issue and is still never an issue in this appeal. Rather, what was in issue was the tenure of office of the
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Appellant, whether the same had ended before the election of the Respondent.
I therefore uphold the preliminary objection that this appeal is incompetent, as the grounds of appeal and their strange issues, do not derive from or relate to the judgment appealed against. The appeal is hereby struck out for incompetence.
That should mark the end of this appeal, but because ours in a penultimate Court, it is necessary for me to also consider the appeal on its merit, in case this appeal goes further to the Apex Court and they would have wanted our opinion on the substantive appeal.
?Appellant?s argument, in the appeal, centred on the alleged establishment of Community Government Councils by Imo State Law No. 1 of 2012, cited as Imo State Autonomous Community Councils Administration Law, gazetted on 21/8/12, whether the same did not proscribe the office of President-General of Town Unions. He argued that that law had proscribed the office of President-General of Town Unions in Imo State and appointed Traditional Rulers of the Communities, where such Unions operated, to take over the functions and duties of the affected President-Generals; he
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said that that was a judicially noticed fact, from the Imo State Government. He said that the election of the Respondent took place on 8/4/12, while that law took effect on 21/8/12, thus, the trial Court was handicapped, as it lacked jurisdiction to hear and determine the case.
Appellant, also argued that the Okwu Uratta Improvement League was not a juristic person, capable of suing or being sued. He relied on Imo State Law No.6 (Imo State Autonomous Communities Law 2006, which he said the leaders and operators of Town Unions must comply with before they are said to have been registered, to operate in Imo State). He argued that Okwu Uratta Improvement League had not complied with that law, having not been registered, in accordance with Section 31, 32 (1), 33 (1) (2) (3) and 34 (1) of the Imo State Law No.6 of 2006. Thus, he argued that the Respondent had no locus standi to bring the action, since the Association he (Appellant) once served Okwu Uratta Improvement League was not registered.
Of course, the Respondent had argued that the Appellant’s grouse had no basis in the judgment appealed against; that the Courts have
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persistently, frowned at attitude of litigants/Counsel who raise issues on appeal, contrary to issues determined by the trial Court. He relied on Mbanefo vs. Agbu (2014) 6 NWLR (pt. 1403) 238, where the Supreme Court said:
The law is trite, that a party will not be allowed to introduce an issue in this Court, which was not raised and pursued in the Courts below thereby setting up an entirely new case in his appeal before this Court.
He also relied on Adegoke Motors Ltd vs. Adesanya (1989) 3 NWLR (pt. 1091) 250 at 266 and the case of S & D Construction Company Ltd vs. Ayoku & Anor (2011) 10 NSCR 1 at 14, where it was held:
“A party should be consistent in stating his case and also consistent in proving it. He will not be allowed to take one stance in the trial Court and another stance on appeal, such a shift in attitude must be condemned in strong terms. For the streams of justice to remain pure, Counsel must at all times be consistent in the presentation of his case.”
Counsel added that the Appellants appeal was a total somersault from the issues he presented at the Lower Court.
On the issue of
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the parties not being juristic persons and not having locus standi to sue or be sued, Counsel said that the two parties to the case are natural persons who have capacity to sue. He relied on Geneva vs. Afribank Nig. Ltd. (2013) ALL FWLR (pt.702) 1652 at 1678, on the two categories of persons who can maintain an action in Court, that is, natural and artificial persons. He said that the Okwu Uratta Improvement League, which Appellant complained about as not being registered, was not a party to the case. Counsel added that the League was not even required to be registered as organisation, to operate; that the law relied upon by Appellant (Imo State Law No. 6 of 2006) did not apply to the Respondents organisation, as the law relates to Autonomous Communities of which Okwu Uratta Improvement League is not one.
Counsel also pointed at the bad faith of the Appellant, in turning against his organization and branding it illegal, simply because he lost out in the suit. Counsel saideven if the organization required registration, Appellant cannot profit from his argument, having served as President-General of the organization, and so should also be held
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accountable for the non-registration of the body. He relied on the case of Buko vs. Nigerian Pools Co. (1965) NWR 196 and Okafor vs. Igwoto & 2 Ors (1997) 1 NWLR (pt. 527) 36, to the effect that a party who executes agreement with another and takes advantage of the benefit of the agreement, with full knowledge of its content cannot, belatedly go to Court to castigate its genuineness; that even a Court of equity cannot come to the aid of such a party. He also relied on Arjay Ltd vs. Airline Management Support Ltd (2003) FWLR (pt. 156) 943 at 990.
Counsel, again argued that the Imo State Autonomous Community Councils Administration Law, No.1 of 2012 is applicable only to Autonomous Communities; that it was not made to regulate Town Unions. He referred us to the preamble of the said Law, which states:
?A Law to provide the establishment, structure, composition, finance, functions and administration of the Autonomous Communities in the local government areas of Imo State.?
?He argued that since the law did not relate to town unions and kindred societies, there was no way it provided for the proscription of the offices of President,
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Secretary, etc. of such unions like Okwu Uratta Improvement League. He further argued that, under Section 40 of the Constitution of the Federal Republic of Nigeria, As Amended, the Respondent and his members of Okwu Uratta Improvement League are protected to form association and operate the same, as their fundamental rights allow and so State law cannot over ride that constitutional provision, and if it attempts, is null and void, to the extent of its inconsistency with the constitutional provisions.
RESOLUTION OF THE ISSUES
I have already stated that Appellant’s complaint in this appeal is a stranger to the judgment of the trial Court appealed against, the purported law(s), thrown up in this appeal, was not part of laws in consideration or reference at the trial of the case, or relevant to the case of the Respondent. The main issue for determination at the Court below, which all the parties accepted, and set out to prove or disprove, were:
1) Whether the defendant and the executive members elected with him on 26/12/08 by the convention of Okwu Uratta Improvement League can validly remain in office after 26/12/2011, and whether
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the said executive led by defendant was not dissolved by the resolution of the League on 8/4/12.
2) Whether, by the Constitution and decision of the Okwu Uratta Improvement League of 8/4/12 and 26/12/12 respectively, the claimant has not been duly elected as the President-General of the League with other executive members.
The above constituted the case which the parties channelled all their energies and resources to prove at the trial Court, and which the judgment of the Court addressed in full. Any appeal against the judgment of the trial Court must therefore be founded on the live issues/complaints arising from or relating to the said issues in the judgment of the Lower Court, to be valid. See the case of Tomtee Nig. Ltd. vs. F.H.A. (2010) 3 NSCR 146 at 162, and Adekeye & Ors vs. Adesina & Ors (2011) NSCR 63 at 78 (all cited by Respondent’s Counsel).
In the case of Christopher Duru vs. Nnamdi Duru CA/OW/306/2013 delivered on 10/5/2016, this Court held:
“the claimant and even the Court, cannot be allowed to change the settled issue(s) at the point of final address of Counsel or at the judgment by the
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Court (or on appeal) It is not the place of the Court to nominate and try a case different from or outside the case on which the parties had joined issues. Okere vs Amadi (2005) 14 NWLR (pt. 945) 545.
Appellant appears to be a bad loser, who would want to pull down the house, if he could not have it.He had served as President-General of their Association, Okwu Uratta Improvement League, which he said was established since 1939, but on failing to get back the office (which he fought strenuously to retain), he, suddenlycame up with the allegation that the Association or Organisation is illegal, having not been registered, pursuant to Imo State Law, No.1 of 2012, (or Imo State Law No.6 of 2006) (whichever he intended to rely on).He alleged that the offices of the President General, Secretary, etc. of the Town Union have been proscribed by the Imo State Law No.6 of 2006 (Traditional Rulers and Autonomous Communities law) which Appellant said proscribed the offices of President-General, Secretary, Treasurer etc. of Town Unions.
Why would Appellant raise this issueon appeal and not at the Lower Courtif the said law existed since
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2006, before he assumed the office of President-General in 2008? And, if the reason Appellant claimed the Association was illegal (because it was not registered with Imo State Law No.1 of 2012 or No.6 of 2006), why did the Appellant not cause the Organization/Association to be registered during his tenure? And why was he contesting to get back into office?
I think Appellant was simply being mischievous, trying to destroy what he could not have.
While at the Lower Court Appellants case, as per the findings of the Lower Court, was:
That the defendant and other members of his executives are the duly elected executives of the Okwu Uratta Improvement League (OUIL) and while the tenure was still running, the claimant, in connivance with Hon Onyeukwu, an SA to the Governor, dissolved the executive led by the defendant: As a result of that illegal dissolution of the executive of the defendant, an action was filed to quash the purported dissolution. While the said action was pending in suit No.1 HOW/35M/12, the purported caretaker committee members, set up by Hon. Onyeukwu, went ahead and conducted the elections, which brought on the
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claimant. That action challenging the dissolution of the defendant’s executive and election of the claimant is still pending. See page 127 of the Records of Appeal.
Appellant therefore, formulated the issues at the Lower Court for the determination of the suit, namely:
1) Whether the claimant has the requisite capacity to maintain the action and
2) Whether the Court has jurisdiction to hear the action. Page 127 of the Records.
All of that was resolved for the Respondent, as the trial Court found out, that the tenure of the defendant and his executive expired in December 2011, and upon the expiration, the Association elected the Respondent and his executive on 26/12/12, after the dissolution of the old executive on 8/4/12, and these decisions were taken by the Okwu Uratta Improvement League at its conventions, held on the said dates and the Court made necessary orders (Pages 135 136 of the Records).
Surprisingly, Appellant never appealed against those findings of the trial Court, but rather tried to come to appeal on what appears to be a completely different case from the one on which the judgement was based. That
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cannot be allowed. The law is that Appellant remains bound by the decision and findings of the Court on which he raised no grounds of Appeal, as such findings remain conclusive and binding. Alaribe vs. Okwuonu (2016) 1 NWLR (pt. 1492) 41 at 66; Gwantu vs. Yaki (2013) LPELR 21416; Shukka vs. Abubakar (2012) 4 NWLR (pt. 1291) 497; Nwadi vs. NECC (2014) LPELR 22910.
It is instructive that Appellant did not appeal against the substance of the judgment, which is/was that the office of president-General of the League, which he acquired on 26/12/2008, expired on 26/12/2008, as per the constitution of the Okwu Urattat Improvement League, and that the members of the body rightly exercised their powers to dissolve that executive on 8/4/2012, and to elect another Executive Committee, headed by the Respondent as the new President General on the 8/4/12 which was ratified on 26/12/12. Of course, the trial Court was right in that decision. In the case of Akanoh Vs Nwabuisi & Ors (2015)6 CAR 22 at 44 45 where Appellant tried to force his regime on the members of his club after the expiration of his tenure, trying to seek time to stay in office to
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compensatefor the period he was wrongly removed from office, this Court held:
I do not see how Appellant, whose tenure had lapsed since November 2009, can hold the Ridge Club to ransomed and frustrate the decision reached at the Extra-Ordinary General Meeting of the Club on 12/9/11, electing the Respondents to move the Club on, and pronounce on the dissolution of Appellants Executive Committee. Appellant cannot force the majority members of the Club to wait for him or for his dissolved executive committee to organize another election to elect a new set of leadership to replace him/them, before the Club can function. He cannot also seek extension of time, indirectly, to complete his tenure, to compensate for the period he lost, when was out of office, due to the wrongful suspension of his membership of the Club.
I think the case of Ladoja vs INEC (2007) 12 NWLR (pt.1047) 115, applies here. Ladoja waswrongfully, removed from office as Governor of Oyo State by impeachment. When the impeachment was reversed by the Court and he was restored to office, he had already lost about 11 months of his 4 year term as Governor. He went
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back to Court for an order to be allowed to finish his 4 year term. The Supreme Court, in a full panel of 7 Justices, refused, as that would have amounted to elongation of his 4 year term, which was static and fixed. The Court said:
Much as one may be in sympathy with the Plaintiff/Appellant?s cause, it seems to me that to accede to his request will occasion much violence to the Constitution. This Court can interpret the Constitution, but it cannot re-write it. In awareness of the possibility that an occurrence may prevent a Governor from being sworn in on the same date as his counter parts in the country, Section 180(2) states that tenure be computed from the date the oath of allegiance and oath of office is taken. There is no similar provision to protect a Governor, improperly impeached.?
In this case too, there is no provision in the Constitution and Bye-Laws of the Ridge Club to help the Appellant?s cause, to hold on to power, until he can organize elections to replace his executive committee?.
It is also strange, that the Appellant raised the issue of capacity of the Respondent to bring the action,
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alleging that the Association (which he (Appellant) served as President-General and which the Respondent currently served, having taken over from the Appellant) is an illegal body, because the same was not registered with an alleged 2012 Law of Imo State. Appellant should know, being represented by Counsel, that the parties to this case are natural persons, who by law, automatically, have legal capacity to bring and maintain action in Court, and the Claimant (Respondent herein) sued the Appellant, for himself and on behalf of his members of Okwu Uratta Improvement League, a body which Appellant admits, has been in existence since 1939.
By Section 40 the 1999 Constitution of the Federal Republic of Nigeria, as amended, the Respondent and his group are constitutionally entitled to form themselves as an association and to meet and operate as such, registration or no registration of any sort. And the Respondent or any member of that Association (League) can take out and maintain any legal action in Court for himself and on behalf of the Organization. See the case of Onowu vs. Ogboko & Ors (2016) 1 CAR 167 at 185, where it was held:
By law
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any member of organization (whether Principal officer or not) can maintain an action in the name of the amorphous body, just as any member of a family can take action or defend action to protect a family property. See Nwachukwu vs. Okaelu (2015) LPELR 24276 (CA) where it was held:
The Respondent Counsel had submitted that, given the fact that the Penticostal Promise Mission was not registered under Part C of the Companies and Allied Matters Act (CAMA), with the Corporate Affairs Commission, to be able to sue by its registered trusties, the only lawful means for the body to bring an action was by its representative, the Respondent. He relied on the Supreme Court case of NBA vs. Fawehinmi (1986) 2 NWLR (pt.21) 224. I agree completely with the Respondent. In representative action, what is important is to show common interest or common grievance and that the relief sought by the claim is beneficial to all. See Nwanguma & Ors vs. Ikpande & Ors (1992) 8 NWLR (pt. 11) 124; Oragbaide vs. Onitiju (1962) ALL NLR 32; Nobody can deny that the common interest of all the members of the unregistered body is also tied to the relieve sought in this
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case by the Respondent.
The Respondent in this caseat hand, therefore had both the legal capacity and locus standi to sue the Appellant and maintain the action for himself and on behalf of his League Okwu Uratta Improvement League.
The issues are therefore resolved against the Appellant and the Appeal stands dismissed as I see no merit in it.
I had earlier struck out the appeal for being incompetent, pursuant to the preliminary objection raised by the Respondent.
Appellant shall pay cost of Fifty Thousand Naira Only (50,000.00) only to the Respondent as cost of this Appeal.
Other Citations: (2016)LCN/8731(CA)
