The State Ex Parte Eze Elect Japhet O. Eke V. The Military Administrator, Imo State & Ors. (2006)

LawGlobal-Hub Lead Judgment Report

SAULAWA, J.C.A.

This is an appeal against the decision of the High Court of [mo State, Owerri Coram Ogwu-Rille, J. dated 8th December 1999 dismissing the appellant’s application for an order of certiorari. It is trite that the appeal has had a chequered historical background. As borne out by the records, the appellant had on 15/10/97 filed an ex parte application dated 02/10/97 in the lower court praying for leave … to apply for an order of certiorari to remove into the High Court for the purpose of being quashed the proceedings, recommendation and the acceptance of same by the Military Administrator of Imo State in the matter of Ezeship stool of Obinze Autonomous Community in page 28 – 29 of exhibit “A ” (the white paper).

The above relief sought by the appellant was predicated on the following grounds –

3. Grounds upon which Relief is sought.

(i) That the applicant was denied fair hearing by the 1st respondent and his appointees contrary to section 33(1), and (2) of the Constitution of the Federal Republic of Nigeria 1979. The relevant portions of exhibit “A” grossly violate the appellant’s right to fair hearing.

(ii) That the 1st respondent and his appointees exhibited gross bias against the applicant to the handling of the competing claims of the applicant and the 3rd respondent to the Obinze Ezeship stool as per exhibit “A”, the white paper.

(iii) That the 1st respondent was not competent to take unilateral actions touching on the subject matter of suit No. HOW/16/96 after pleading had been exchanged in the suit in which the applicant is the plaintiff and the 1st respondent is the defendant. The 3rd respondent herein is the 3rd defendant.

(iv) That at all times material to exhibit “A” herein suit No. HOW/16/96 was pending at the Owerri High Court. The panel and 1st respondent in that circumstance had no jurisdiction or authority to investigate, conclude and pass judgment in form of exhibit “A” when same question or issue is pending before the High Court for determination.

Consequent upon the granting of the leave sought, the appellant filed in the lower court a motion on notice (dated 20/11/97) on 25/11/97. Attached to and in support of the said motion on notice was a verifying affidavit sworn to by one Miss Stella Obiageri a litigation clerk in the chambers of the appellant’s counsel. As it would appear from the records, the appellant’s learned counsel has added at the foot of the prayers contained in the motion on notice thus – And Further Take Notice that at the heading the applicant shall rely on the affidavits and the exhibit thereto. And shall rely on the statement of particulars and grounds with this application. See page 16 of the lower court’s record at paragraphs 4 – 10.

Ironically however, apart from the verifying affidavit alluded to above, neither the said statement of particulars nor the grounds were actually annexed to the motion on notice in question. Consequent upon the conclusion of the hearing of the motion on notice in question on 25/10/99, the learned trial Judge adjourned the matter to 01/12/99 and thereafter to 08/12/99 for ruling. See page 57 – 66 of the lower court’s records. The said ruling is to the conclusive effect that

” … In the circumstances it is my view that the issue of breach of the applicants right of fair hearing and bias and the incompetence of the 1st respondent and the panel complained of by the applicant do not apply nor do they arise. In the light of the above, the application for certiorari is refused and hereby dismissed.”

Not unnaturally, the appellant being dissatisfied with the totality, of the decision of the lower court filed this appeal upon seven grounds. See pages 67 – 73 of the lower court’s records. In this court, the parties filed and exchanged their respective briefs between them. The appellant in particular formulated two issues for determination, to wit –

“1. Whether the learned trial Judge properly considered the case put forward by the appellant in the certiorari proceedings.

2. Whether the learned trial Judge was right in refusing to grant appellants application for an order of certiorari as sought.”

On the other hand, the 1st and 2nd respondents have also formulated two issues for determination which are to the effect that

“1. Whether the learned Judge considered the case as put forward by the appellant and the certiorari proceedings.

2. Whether in the circumstances of this case certiorari could properly be issued in this case.”

The 3rd respondent has on his own paI1 also raised only two issues for determination viz-

“3.1 Whether having regard to the facts and circumstances of this case the appellant made out a case for an order of certiorari to issue.

3.2 Whether the result of the Administrative Panel of Enquiry over-reached the Ezeship case suit No. HOW/16/96 pending at the court at the material time.”

There is no doubt that the two issues formulated by the appellants as well as the three by the respondent’s arc substantially the same. Hence I have deemed it most appropriate to adopt the two issues formulated by the appellant. For ease of reference, I have deemed it expedient to reproduce herein below the seven grounds upon which this appeal has been predicated, to wit –

3. Grounds of Appeal

Ground One: Error in Law

The learned trial Judge erred in law when he held that application for certiorari is refused and dismissed without judicially and judiciously weighing and considering the ease of the applicant as contained in this affidavit together with the submissions of his counsel.

Particulars of Error:

(a) The applicant filed a combined total of about 37 paragraphs of affidavit evidence in support of his application but not even one was referred to in the judgment.

(b) The applicant’s counsel made a copious submission in support of the application citing about fourteen relevant Court of Appeal and Supreme Court decisions binding on the trial court but not even one of these was referred to and either distinguished or applied to the case.

(c) The court instead in the judgment weighed only the affidavit of respondents and submissions of 3rd respondent’s counsel only.

(d) The application was not considered upon the preponderance of evidence as required by law in civil cases.

Ground Two: Error in Law

The learned trial Judge erred in law when he did not consider any of the grounds upon which the application was brought upon their merits, but rather glossed over them in passing when each and everyone of them could have availed the applicant/appellant.

Particulars of Error:

(a) The grounds upon which the application was brought include bias, lack of fair hearing, competence, and the issue of same question or similar question pending in HOW/l6/96 at all times material to the matters complained about.

(b) Except one of the grounds listed above that was resolved in favour of the appellant, none of the other grounds were considered on their merits at all.

(c) Upon the authorities and having agreed with ground IV of the application, the trial Judge ought to have granted the application.

(d) The learned trial Judge having held that there was a decision in pages 28-29 of the white paper ought to have granted the application.

(e) Upon the totality of the evidence, the learned trial Judge ought to have granted the application having found as a fact that the applicant was not heard by the panel when page 4 of the white paper clearly showed that oral evidence was indeed taken from some persons.

Ground Three: Error in Law

The learned trial Judge erred in law when he held that the matters complained about in the application does not adversely affect the applicant and that the applicant was not over-reached.

Particulars of Error:

(a) There was overwhelming evidence at the hearing that the appellant was adversely affected and over-reached.

(b) The Panel on the face of the records invited all interviewed persons of its own choice excluding the appellant who ought to have been considered relevant and invited and interviewed alongside others being a presented Eze Elect of Obinze Autonomous Community.

(c) The basis for the dismissal of the appellant’s application is not one of the recognized and valid basis for the dismissal of an application for certiorari such as the instant one.

(d) The court failed and/or refused to apply the relevant law to the facts of this case.

Ground Four: Error in Law

The learned trial Judge erred in law when he held that paragraph 10 of the counter affidavit of the 1st and 2nd respondents was not controverted and is therefore deemed to be the true position.

Particulars of Error:

(a) The said paragraph 10 states in part no oral evidence was called for. There are overwhelming pieces of evidence in the supporting affidavit effectively controverting that deposition.

(b) The applicant in his own supporting affidavit in paragraph 9, 10, 11, 12, 13, and 23 clearly deposed that the panel invited and interviewed persons of its own choice and refused to invite and interview the appellant.

(c) It is clear even on the face of the records particularly page 4 of the white paper exhibit “A” paragraph 2 that indeed the panel invited and interviewed persons of its choice who were considered relevant to the exercise.

(d) In general, what was not controverted by the white paper is the affidavit evidence of the appellant.

Ground Five: Error in Law

The learned trial court erred in law when it dismissed the application when in actuality; the case of the opposition is hollow, watery, weightless and legally worthless.

Particulars of Error:

(a) The applicant was able to show that there was bias against him vis-a-vis the entire white paper.

(b) The applicant was also able to show that there was error on the face of the records and that rules of natural justice were not complied with regards to his case.

(c) There were clear grounds or basis for the grant of the application but the court held otherwise.

(d) The trial court shied away from the issues submitted to it for determination.

(e) The trial coul1 did not properly evaluate the case of the appellant leading to a miscarriage of justice.

Ground Six: Error in Law

The learned trial Judge erred in law when it dismissed the application after finding as a fact that the panel acted in excess of its jurisdiction by taking oral evidence when it was not enjoined so to do in its terms of reference.

Particulars of Error:

(a) If indeed the panel acted in excess of its jurisdiction that would be a basis for refusing it.

(b) Actions in excess of jurisdiction is one of the accepted basis for grant of certiorari applications such as the instant one.

(c) It is clear from page 4 of the white paper and the affidavit of the appellant at the lower court that indeed the panel took oral evidence and excluded the appellant an Eze Elect from the exercise.

Ground Seven: Error in Law

The judgment of the learned trial Judge is altogether unwarranted and cannot be supported having regard to the circumstances and the totality of the evidence before him at the trial.

Particulars of Error:

(a) The judgment of the trial court is against the weight of evidence.

(b) The learned trial court failed to resolve the most salient issues submitted to it for determination.

(c) The learned trial Judge erred in “stating that the panel was not considering any dispute involving the applicant that requires a hearing from him “when infact both the applicant and the 3rd respondent are infact disputing the Ezeship Stool of Obinze Autonomous Community in Owerri West Local Government Area the subject matter of HOW/I6/96 which is conceded even by the 3rd respondent.

(d) The panel indeed found that there was a recommendation and a decision in pages 28 -29 of the white paper: in respect of Obinze Ezeship stool in dispute between the appellant and the 3rd respondent.”

Issue No 1:

It is instructive that the appellant has canvassed issue No.1 under grounds I and 2 of the grounds of appeal. The appellant has inter-alia vehemently contended under this issue that the learned trial Judge’s alleged failure to consider the case put forward by the appellant by thoroughly examining all the issues raised in the affidavit evidence thereof has resulted “in substantial miscarriage of justice to the appellant”. A reference was specifically made in that regard, to page 65 lines 13 – 15 of the lower courts record to the effect that

‘The recommendation and decision at pages 28 – 29 of the white paper exhibit “A” merely restated the situation on the grounds.

… In my opinion it in no way adversely affects the suit No. HOW/16/86 pending in court nor has it over-reached it in any way.”

It was the vehement contention of the appellant’s learned counsel that had the learned trial Judge correctly adverted his mind to the issues raised by the appellant, she would have come to the conclusion that the Administrative Panel was indeed dealing on what was before the High Court in a manner prejudicial to the appellant.

“See Awoyale v. Ogunbiyi (1986) 2 NWLR (Pt. 24) 626: Enigwe v. Akaigwe (1992) 2 NWLR (Pt. 225) 505 at 535 C – D, Nwadike v. Ibekwe (1987) 12 SC 14 at 36. (1987)4 NWLR (Pt. 67) 718: Asariyu v. Stale (1984) 4 NWLR (Pt. 67) 709.

This court has now been called upon to thus make in-references from the facts in evidence and accordingly correct the alleged wrong approach of the lower court in favour of the appellant. See Akpapuna v. Nzeka (1983) 2 SCNLR 1: Awoyale v. Ogunbiyi (supra); Olajinle v. Adeagbo (1988) 2 1WLR (Pt.75) 238 at 255 respectively. See also Mogo Chinwedu v. Mbamali & Anor. (1980) 3 – 4 SC 31, Onobruchere v. Esegine (1986) 1 NWLR (Pt. 19) 799, Ojomu v. Ajao (1983) 9 SC 22 at 53 respectively. The court is thus urged to resolve issue No. 1 in favour of the appellant.

Contrari-wise, the 1st and 2nd respondents have vehemently debunked the above assertion of the appellant. As it were, the 1st and 2nd respondent’s contention on the 1st issue (argued under grounds 1. 2, 6 and 7) is that “had the learned trial Judge examined all the facts deposed in the affidavit of the appellant, it (sic) would have seen or come to the conclusion that the appellant had no locus standi in the first place to bring the application. This is because the issue of locus standi boarders on jurisdiction”. (brackets added).

See Okafor v. Ezenwa (1992) 4 NWLR (Pt. 237) 611 at Page 618 paragraphs H – A to the effect inter alia that –

“If no objection to jurisdiction is raised, a trial court has the duty Suo motu to deal with his (sic) jurisdiction to try the suit. A motion to that effect is not necessary. ”

See also Adesanya v. President Federal Republic of Nigeria (2001) FWLR (Pt. 46) 859, (1981) 2 NCLR 358: Ogguehi & Ors. v. The Governor of Imo State & Ors. (1995) 9 NWLR (Pt. 417) 53 at 87;Eleso v. Government of Ogun State & Ors. (1990) 2 NWLR (Pt.133) 420, respectively. I think I can not agree more with that submission. This is so because it is trite that where, in any given suit or action: its established that a plaintiff has no locus standi to sue, his claim must be dismissed on the simple ground that it would be unnecessary for the court to adjudicate there upon. See Adesanya v. President of the Federal Republic of Nigeria (supra) at page 895 paragraphs D – E per Bello JSC (as he then was and of blessed memory).

It is trite that the competence of a court depends entirely on whether the subject matter of the case before it is within its jurisdiction and the fact that there is no feature therein which is likely to prevent the court from duly exercising the jurisdiction thereof. See Madukolu v. Nkemdilim (1962) I All NLR 587: Western Steel Worker Ltd. v. Iron Ami Steel Workers Union (1986) 3 NWLR (Pt. 30) 617; Nonye v. Anyichie (1989) 2 NWLR (Pt. 101) 110 paragraphs H – A. respectively.

Most undoubtedly, the issue of locus standi is a condition precedent and thus fundamental to any action before a court. As a threshold, it goes to the root of the entire action. Thus, once raised at any stage of the proceedings, the court, be it the trial or appellate court, has a duty to rule there upon. This is definitely so because –

“Locus standi affect the jurisdiction of the court before which the action is brought, because if there is no locus standi to file the action in the first place, the court cannot properly found jurisdiction to entertain the action.” See CBN v. Kotoye (1994) 3 NWLR (Pt. 330) 66 @ 73 paragraphs C – D per Kalgo JCA (as he then was).In my considered opinion the fact that the issue of locus standi was not raised at the lower court does not preclude the 1st and 2nd respondents from raising it on appeal before this court. As alluded to above, the issue of locus standi being fundamental and intrinsic to that jurisdiction of a court it can be raised at any time and stage of the proceedings at the trial court, Court of Appeal and even the apex court (Supreme Court).

The fact that a court (whether trial or appellate) has a duty to suo motu raise any issue that borders on jurisdiction is no longer in doubt. See Okafor v. Ezenwa (1992) 4 NWLR (Pt. 237) 611 at 618 paragraphs H – A. See also the case of Adesanya v. President Federal Republic of Nigeria (supra) thus-

“The point whether the plaintiff was personally interested in the issue raised by him in his suit never arose at the trial court nor was it canvassed. Consequently, the trial Judge, except for the above observation, did not deal with it in his judgment. The Court of Appeal having raised the point suo motu, however, indicated that it would like to hear both parties on it…..

The Court of Appeal in the course of the ruling in which it referred the above questions for a decision of this court found as follows:

F We think that it is pertinent here to point out that the plaintiff is a member of the senate. and the subject matter is one in respect of which he has been defeated in the senate, and in our view, sections 48 and 141 of the Constitution do not confer on him any light to prosecute outside the senate a matter in respect of which he had been defeated within.” Per Williams C.J.N at pages 878 (paragraph C) and 879 paragraphs C – D respectively.It is instructive that the 1st and 2nd respondents have at page 4 of the brief of argument thereof asserted inter – alia, that –

It’s important to note that the appellant brought this action in his personal capacity. He cannot therefore assert the right to bring the action by reason of hereditary or other interest pertaining to his family who did not sue through their representatives and whose right the appellant did not claim to produce the traditional ruler of Obinze Autonomous Community. And through out his affidavit he did not mention his family.

Paragraph 5 of the affidavit in support of his application (see pages 5 and 6 of the record) the appellant stated in passing among other reliefs he was claiming at the lower court that –

” … I am the duly selected and presented Eze elect of Obinze Community.”

At paragraph 24 of the same affidavit (page 8 of the bundle of the records) he stated thus “that I was presented some three months before the 3rd respondent.

As alluded to above, the argument of the 3rd respondent on issue No I could be found at pages 5 – 10 of the brief of argument thereof. Ironically however, through out the pages in question, there is no where an allusion or reference was made to any of the appellant’s seven grounds. The purported argument is most undoubtedly speculative and superfluous, and ought to thus be and is accordingly hereby discountenanced, without much ado. It is trite law that issues formulated for determination ought to ordinarily be distilled from appellant’s grounds of appeal. In the same vein, where an argument canvassed in an issue does not specifically relate to any ground of appeal, such an argument goes to no issue and ought to thus be discountenanced. See Dibiamaka v. Osakwe (1989) 3 NWLR (Pt.

107) 10I at pages 110 paragraphs G -H and 111 paragraphs A – B thus –

‘The Supreme Court Rules 1985 – order 6, deals with filing of briefs.” Times without number this court has emphasized the necessity of filing good briefs. No counsel can file a good brief who does not ever understand his case or who can not properly appreciate the reasons for the decision. A good brief is thus a reflection of counsel’s acquaintance and appreciation of the case for or against his side. In Engineering Enterprise of Niger Contractor Co. of Nigeria v. The A.-G., of Kaduna State (1987) 2 NWLR (Pt .57) 381, this court went out of its way to instruct counsel on the format and substance of a good brief and my noble learned brother Eso. JSC: pointed out at page 396 –

‘The Rules require that the brief so filed by a party –

(a) Shall be a succinct statement of his argument in the appeal;

(b) Shall contain issues arising in the appeal.”

we have also decided that those issues will not be allowed to stray outside the ambit of the grounds filed but will reflect and substantiate those grounds per Oputa JSC.

In the same vein, its instructive to allude to the fact that this C court has consistently and in a plethora of cases made it abundantly and unequivocally clear that issues formulated (in brief of argument) which do not relate to grounds of appeal go to no issue, thus ought to be discountenanced. See Anaedobe v. Ofodile (:200 I) FWLR (Pt. 45) page 718 at 72; (200 I) 5 NWLR (Pt. 706) 385 paragraphs E – G D per Mohammed, J.C.A. thus:

All issues for determination must be from the grounds of appeal and where such issues were not drawn from grounds of appeal, such issues must be ignored. In the instant case, issue formulated with same not being related to any of the grounds of appeal should be struck out. See also C.M.T Trading Services Ltd. v. Yuriy (1998) II NWLR (Pt. 573) 284 at 381: Godwin v. CAC (1998) 14 NWLR (Pt. 584) 162 respectively.

Now, what then is the appellant’s response if any, to the issue of locus standi raised by the 1st and 2nd respondents in the brief of argument thereof alluded to above” The answer. as it were, is most undoubtedly nil; It is evident as confirmed by the records of this appeal that the appellant has not deemed it fit or expedient to counter the issue of locus standi in question. By the rules of this court, the appellant has a duty to file his reply brief before he could be heard on issues raised by the respondent’s briefs of argument thereof. See Order 6 rule 5 of the Court of Appeal Rules (supra).

“Order 6 –

5. The appellant may also. if necessary within fourteen days of the service on him of the respondent’s brief but not later than three clear days before the date set down for the hearing of the appeal file and serve or cause to be served on the respondent a reply brief which shall deal with all new points arising from the respondent’s brief.

Most undoubtedly, the essence of filing and exchanging briefs of argument is predicated on the principle that parties are bound by their pleadings. This is so because; whatever is not pleaded is not an issue and thus ought to be discountenanced.

It is trite that where a new point happens to be raised by a respondent in the brief of argument thereof, the appellant ought to file a reply brief thereto. Thus, where the appellant fails to file a reply brief, he is deemed to have conceded the new point raised in the respondent’s brief of argument. See Order 6 rule 10 of the Court of Appeal Rules (supra) thus:

“Order 6 –

10. where an appellant fails to file a reply brief within the time specified in rule 5, he shall be deemed to have conceded all the new points or issues arising from the respondent’s brief.”

See also Bendex Engineering Corp. & Anor: v. Efficient Petroleum Nig. Ltd. (2001) FWLR (Pt. 47) page 1188 at 1207 paragraphs C-D; (2001) 8 NWLR (Pt. 715) 333 per Olagunju JCA thus:

In the instant case, because of the importance of the new point in the respondents’ brief of argument on the competence of the ground of appeal and the issue formulated, therefore, there ought to be a reply filed by the appellants. Their failure to file is deemed as concession to the new point raised. See also Okoye ” Nigerian Construction And Furniture Co. Ltd. (1991) 6 NWLR (Pt. 199) 50 I, 533 – 534.

Popoola v. Adeyemo (1992) 8 NWLR (Pt. 257) 1 at 32; Orah v. Nyam (1992) 1NWLR (Pt. 217) 279 at 286: Nyambi v. Osadim (1997) 2 NWLR (Pt. 485) I at 8 respectively.

However, I have deemed it most appropriate to at this stage to allude to the fact that it is evident that none of the three respondents had sought and obtained the necessary leave of this court prior to raising the issue of locus standi in question. It is also evident that no cross appeal has so far been filed by them to that effect. That being the case therefore, the issue of locus standi raised by the respondents most undoubtedly goes to no issue and ought to thus be discountenanced. See Order 3 rule 15(1) of the Court of Appeal Rules (supra) which is to the effect that:

“Order 3 15(1) A respondent intending to rely upon a preliminary objection to the hearing of the appeal shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with twenty copies thereof with the Registrar within the same time.

See also Order 6 rule 7 C.A Rules. See also Uzoewulu v. Ezeaka (2000) 14 NWLR (Pt. 688) 629 at 641-642; (2001) FWLR (Pt. 46) page 932 at 946 and 947 paragraph A – B respectively. Per Muhammad, JCA thus:

Issues for determination in an appeal must always be relevant to the grounds of appeal. Any supposed issue or question for determination which has no reference to any ground of appeal would not be considered by the appellate court. Such an issue would be adjudged incompetent and discountenanced (sic). In the instant appeal, the respondents issue No 6not being, positively alluded to the ground of appeal filed by the appellants, and the respondents themselves having failed to file any cross-appeal or a respondent’s notice, the said issue No 6 becomes incompetent and must be struck out…..objection being raised to an appeal must comply with the provision of Order 3 rule 15(1) of the Court of Appeal Rules in that the appellant, who is responsible to the objection must be given the notice which the rules of the court require of him. Raising an objection by formulating same in to an issue for determination of an appeal offends the enabling rules of court.

As it would appear, the 1st and 2nd respondents’ motion on notice, dated 13/01/03 and filed on 30/01/03 which was deemed granted on 27/4/06 has prayed for only two orders, to wit:

(a) An order exceeding the time within which the 1st and 2nd respondents/applicants may file and serve their brief of argument in this appeal.

(b) An order of court deeming as duly filed and served the brier of argument exhibited in the affidavit in support of this application marked as exhibit “A”.

Thus as is alluded to above, there was never a time the leave of this court was sought to raise the objection upon locus standi in question, talk less of same being granted. Consequently, the 1st and 2nd respondent’s issue No I in question is rendered incompetent, null and void and accordingly struck out. See Uzoewulu v. Ezeaka (supra) at 947 paragraphs A-B.

As referred to above, the appellant’s issue No I is predicated upon grounds I and 2 of the appeal thereof. First, it was the allegation of the appellant that the trial Judge had wrongly failed “to recognize

that there was already in existence a pending suit challenging the recognition of the 3rd respondent before the Administrative Panel was set up; that the alleged failure by the Trial Judge to dispassionately consider the appellant’s case has resulted” in substantial miscarriage of justice to the appellant. See pages 4 and 5 of the appellants brief. I have painstakingly gone through the entire record of proceedings of the trial court. The learned trial Judge has had cause to observe at page 65 especially lines 5 – 27 of the record thus:

From the affidavit and counter affidavit of the parties herein, it is clear that the 3rd respondent was recognized on 4/1/96 before the suit No, HOW/16/96 was filed and that the suit was primarily to challenge the recognition. The recommendation and decision at pages 28 – 29 of the white paper exhibit “A” merely restated that situation on the ground. In my opinion it is no way adversely affects the suit No HOW/16/96 pending in court nor has it over-reached it in any way.

In the terms of reference (shown in exhibit “A’) of the Administrative Panel whose findings and recommendation was subject of exhibit “A” the Panel was not enjoined to take oral evidence.

In the case of Obinze it is clear that neither the appellant nor the 3rd respondent was called to give evidence before the Panel. This fact is contained in paragraph 10 of the counter affidavit of the 1st and 2nd respondents and this was not controverted by the applicant in a further affidavit and is therefore deemed to be the true position. See Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) at 688.

Having carefully perused the entire records of proceedings of the trial court and vis-a-vis affidavits and counter affidavits of the parties, as well as exhibit A i.e. the certified true copy of the Government white paper on the report of the Administrative Panel on the creation of the new Autonomous Community and recognition of Traditional Rulers between January 1996 to 5th November 1996, I am unable to agree with the appellant’s contention that the trial court has failed to “properly and dispassionately consider the case thereof for obvious reasons:

B i) There is no doubt that the observation of the learned trial Judge, on the issue of the appellant’s failure to file a further affidavit to controvert the 1st and 2nd respondents’ averments in paragraphs (4) and (5) of the counter affidavit thereof is the correct position of the law. See Nwosu v. Imo State Environmental Sanitation Authority (supra) at 735 paragraph B to the effect inter alia that paragraphs deposed to in an affidavit (including a counter affidavit) not specifically denied are deemed to be admitted. See also by virtue of paragraphs (4) and D (5) of the 1st and 2nd respondents’ counter affidavit and paragraph 3 of the 3rd respondents counter affidavit the 3rd respondent was since 04/0 1/96 presented with a letter of recognition as the Nze Ukwu 1 of Obinze Autonomous Community in the Owerri West Local Government Area of [mo State by the 1st respondent.

ii) In the same vein, paragraph 2 of the appellant’s affidavit in support of the ex parte motion thereof dated 15/10/97 clearly confirms that it was only on 11/01/96 i.e. seven days after the 3rd respondent was issued with a letter of recognition that he filed the purported suit (HOW/l6/96) in the High Coul1. Thus, the trial court was right, in my view in coming to the conclusion as it did that-

From the affidavit and counter affidavit of the parties herein it is clear that the 3rd respondent was recognized on 4/1/96 before the suit No. HOW/l6/96 was filed and that the suit was primarily to challenge the recognition.

[n the same vein, the contention of the learned trial Judge at page 65 paragraphs 10 – 15 of the record of the lower court to the effect that –

The recommendation at pages 28 – 29 of the white paper exhibit “A”, merely restated the situation on the ground.

In my opinion, it in no way adversely affects the suit No. HOW/l6/96 pending in court nor it over-reached it in any way.

can not in my view, in any way be said to be erroneous or perverse.

It is instructive to note that the record of proceedings of the Administrative Panel of enquiry was never exhibited before the trial court. The appellant most unfortunately deemed it fit to only exhibit at page 11 of the record a part of the Governments white paper thereon. Thus, the manner in which the said Administrative Panel of Enquiry arrived at the findings and recommendations thereof are liable to conjectural hypothesis. For instance, its only the record of proceedings of the said Panel (which the appellant, for reasons best known thereto failed to produce) which could have availed the trial court the opportunity to know whether or not took evidence from the 3rd respondent or any other witness to the exclusion of the appellant. Hence, having failed to exhibit the copy of the proceedings of the Panel, the appellant is estopped from complaining against the ruling of the learned trial Judge referred to above.

iii) As it would appear, the failure to join the Administrative Panel of Enquiry in question is no doubt fatal to the appellants case. This is, so because its trite that the Tribunal that concluded the proceedings and arrived at the decision complained of in the application for a prerogative writ (in this case certiorari) ought to have been made a respondent thereto and not the person or authority claimed to have set it up or power to review its decision. See Igong v. Board of Customs and Excise and Anor. (1968) NMLR, Odita v. Okwudinma (1969) 1 All NLR 228 (at 220 of the reprint edition (1990) in which the Supreme Court held inter alia that: –

It is clear from Layanju v. Amoye 4 FSC 154 that an interested party in respect of an application for a writ of mandamus must be given the opportunity of being heard before a rule nisi is made absolute.

In our view the failure to serve notice on the appellant or alternatively to obtain an order dispensing with such service renders the proceedings a nullity, and not a mere irregularity as Mr. Ohen submitted, as the appellant was entitled as a person directly affected to notice of the purposed application. Per Lewis JSC.

Hence, in the light of the above postulations my answer to issue No I above is most inevitably in the affirmative.

Issue No 2

As alluded to above, issue No 2 of the appellant as adopted, is predicated on grounds 3, 4, 5, 6, 7 and 8 (?) of the appellants grounds of appeal. However, I have deemed it expedient to at this point in time to allude to the fact that the appellant’s reference to grounds “8” of the grounds of appeal is a misnomer and ought to thus be discountenanced. It should be recalled that the appellant has at page 74 of the record of the trial court stated thus:

“Ground Eight:

That more ground of appeal will be filed upon the receipt of the entire record of proceedings of the High Court”‘.

It’s on record that the appellant has never made any application to file additional grounds of appeal up to 20/9/2006 when this appeal was heard and adjourned to today for judgment.

Consequently, the purported reference to the alleged ground 8 of the grounds of appeal is hereby discountenanced. See Order 3 rule 2(5) and (7) of the Court of Appeal Rules (supra) to the effect inter alia that:

2. ………….

(5) The appellant shall not without the leave of the court urge or be heard in support of any ground of appeal not mentioned in the notice of appeal…

(7) The court shall have the power to strike out a notice of appeal when an appeal is not competent or for any other reason.

Under issue 2, the appellant alleges inter alia that the learned trial Judge was wrong in not granting the application for an order of certiorari quashing the proceedings and recommendation by the 1st respondent in the matter of Obinze Ezeship stool that the learned trial Judge failed to appreciate the forceful point made on the issue of denial of fair hearing to the appellant. Reference was made to pages 5 – 8 of the trial courts record as well as the appellant’s grounds 1 – 7 of the appeal thereof to the effect that the appellant had been denied fair hearing by the said Panel. See pages 6 – 10 of the appellant’s brief. Various references were made by the appellant, as alluded to above, to authorities – statutory and case law, as well as the Constitution of the Federal Republic of Nigeria. 1999 and thereby urging upon this court to allow the appeal and set a side the decision of the lower court.

On the other hand, the 1st and 2nd respondents issue No.2 is predicated on grounds 2, 4, 5 and 6 of the grounds of appeal. See pages 6 – 8 of the 1st and 2nd respondents brief to the effect that “certiorari cannot issue in this matter as there was no denial of fair hearing”.

The 3rd respondent’s argument on issue 2, as alluded above could be found at pages 10- 15 of the brief thereof to the effect inter alia that the appellant’s right to fair hearing was not breached. Thus, urged the court to resolve this issue in favour of the respondents and accordingly dismiss the appeal.

It was the complaint of the appellant that the Administrative Panel in question invited and interviewed persons of their choice and that it refused to invite and interview the appellant; that the appellant was not given opportunity to state his case before the Panel.

The appellant relies on Mohammed v. Kano NA (supra) Adigun v. AG., Oyo State (supra) Balm v. NCAT C (supra) and Bal/are v. Lagos State Civil Service Commission (supra) and section 334, of the defunct 1979 Constitution to the effect that certiorari will issue to quash the decision of an inferior court or tribunal where there is a breach of the principles of natural justice. In Mohammed v. Kano NA (supra) it was held inter alia by the Supreme Court per Ademola CJN that –

we are of the opinion in the present case that the conduct of inspector Markita to which he have referred in this Judgment must leave an observer with the impression that the appellant has been denied a fair trial.

However, the learned CJN has unexpectedly cautioned that:

“The burden is on the appellant to show that irregularity and the conduct of the trial complained of led to a failure of justice.”

In the instant case the appellant shoulders the burden of proving that the procedure adopted by the said Administrative Panel was irregular, especially regarding the alleged breach of his right to fair hearing.

Most unfortunately for the appellant however there is no reasonable ground to show that his right to fair hearing has actually been breached by the Administrative Panel in question. As rightly pointed out by the 1st and 2nd respondents at page 6 of the brief thereof, paragraphs 7, 8 and 9 of the 3rd respondent’s counter affidavit are to the effect that he was never invited to appear before the said Administrative Panel of enquiry; that paragraphs 9 and 10 of the 1st and 2nd respondents counter affidavit are also to the effect that apart from documents regarding the presentations of the 3rd respondent forwarded to the Administrative Panel of Enquiry, no oral evidence was called for by the said Panel. It is instructive as alluded to above, that the above averments contained in the 1st and 2nd respondents two counter affidavits in question were never at any time challenged as controverted by the appellant in further affidavit See the learned trial Judge’s ruling at page 65 paragraphs 20 – 26 of that record alluded to above, See also Nwosu v, Imo State Environmental Sanitation Authority (supra), By failing to controvert the averments of the respondents counter affidavit in question the appellant has no doubt become the architect of his own misfortune.

It is also trite that the appellant was in fact denied a hearing by the said Administrative Panel of Enquiry has not necessarily amounted to a breach or denial of fair hearing; the provisions of section 31 (1) of the 1979 notwithstanding. See The Queen Ex parte Oputa & Ors. v. Director of Audit (WR) and On. (1961) All NLR page 659 to the effect inter alia that the absence of an oral hearing or of an opportunity to be heard orally before an Administrative tribunal does not necessarily amount to a denial of the principles of natural justice; a decision reached after a full enquiry without an oral hearing docs not violate such principles.I think the dictum of the supreme court in the Queen Exparte Oputa’s case above is very much relevant to the instant case, especially having due regard to the fact that prior to the setting up of the Administrative Panel in question, there was in subsistence the High court case NO. HOW/16/96 filed by the appellant himself.

In the course of this judgment, I have carefully adverted my mind to page 4 of exhibit “A” i.e. the Imo State Governments white paper on the Administrative Panel’s Report in question paragraph which is inter alia to the effect that –

The Panel invited and interviewed community leaders who were considered relevant to the exercise.

Traditional Rulers from, whose communities new ones were created were similarly interviewed. The Panel reviewed the cases of 49 new autonomous communities which were approved and gazetted in 1996 and 14 Traditional Rulers recognised within the same year. The Panel submitted its report in two volumes as follows:

(i) Volume I: The main report, and

(ii) Volume II: Proceeding.

The report has been carefully considered by the Imo state Government. The summary of the Panel’s findings and recommendation as well as, Governments decisions on them are as indicated in this white paper.

There is no doubt that exhibit’ A’ is the summary of the Panel’s findings and recommendations as well as Government’s decisions thereupon referred to above. The two volumes consisting of the main report and proceedings of the Administrative Panel have not been exhibited with other documents in the court below. As alluded to above, failure by the appellant to produce and exhibit the said two volumes had no doubt deprived the lower court the opportunity to ascertain with clarity the veracity of the allegation of the appellant regarding the issue of whether or not witnesses including the 3rd respondent were infact invited and did testify before the Panel. The trial court as it were was in fact handicapped. That being the case therefore it would be most uncharitable to say the least, for the appellant to now allege that the learned trial Judge was wrong in refusing to grant the application for an order of certiorari quashing the proceedings/recommendations by the 1st respondent in the matter of Obinze Ezeship stool in question.

As alluded to above, the fact that it has been indicated in exhibit ‘A’ at page 4 that the Panel invited and interviewed community leaders and Town Union leaders who were considered relevant to the exercise does not ipso facto mean that witnesses were heard in respect of the matter concerning the Obinze chieftaincy dispute. It is an issue of fact which the appellant had the burden of proving before the trial court. Unfortunately for the appellant, he failed to discharge that burden.

What more, considering the circumstances surrounding the application for an order of certiorari as a whole, the learned trial Judge was right in holding that the recommendation and decision at pages 28 – 29 of the white paper exhibit “A ” merely restated the situation on ground. In my opinion, it in no way adversely affects the suit No HOW/16/96 pending in court nor has it over-reached it in any way. See page 65 paragraphs 11 – 15 of the records. It is evident that exhibit ‘A’ has not in any way tampered with the res in the appellant’s suit No.HOW/16/96. There was also no cogent evidence alluded by the appellant to prove that the said exhibit’ A’ had changed the status quo of the appellant or that of the 3rd respondent. See A -G., Anambra State v. Okafor (1992) 2 NWLR (Pt. 224) at page 396 at 419 paragraphs G – H per Omo. JSC to thus

“An interlocutory order by way of injunction is made to maintain the status quo pending the determination of the substantive action or appeal.”

In my opinion, the effect of exhibit ‘A’ has the semblance of maintaining the status quo of both the appellant and the 3rd respondent prior to the filing of the suit (HOW/16/96) in the High Court, Owerri. Thus, the said exhibit “A”, as rightly observed by the learned trial Judge has neither adversely affected nor over-reached the High Court case No. HOW/16/96 in question. To hold otherwise, would in my view amount to injudiciousness, and a sheer absurdity.

Incidentally, in the case of A-G, Anambra State v. Okafor (supra), the Supreme Court’s decision resulted in the setting aside of the earlier judgment of this court in the very well known case of Okafor v. A-G, of Anambra Stale (1988) 2 NWLR (Pt. 79) page 736for having as it were, erroneously quashed the recognition of the 5th appellant by the 1st and 3rd appellants as the Traditional Ruler of Awka. One of the salient and far reaching decisions of the Supreme Court in A-G. Anambra State v. Okafor (supra), which I believe is very much relevant to the instant case, is to the effect that “An aggrieved person who is desirous to challenge the recognition of a traditional ruler in court should seek declaratory order to the effect that the recognition is null and void, and not just seek an order setting aside of the recognition simpliciter (as was done in the instant case). Thereafter the Governor will be obliged in obedience to the court order to de-recognize the traditional ruler where the challenge is successful.”

Pages 401-402 ratio 3. Thus, the filing of the application for an order of certiorari at the lower court by the appellant during the pendency of the High Court case No HOW/16/96 regarding the same subject matter has no doubt amounted to an abuse of judicial process.

The appellant has failed to establish that his right to fair hearing as guaranteed under section 33(1) of the Constitution of the Federal Republic of Nigeria 1979 has been breached. The provisions of section 33(1) of the defunct 1979 Constitution (which are replicated in section 36 (1) of the current constitution of the Federal Republic of Nigeria 1999) are cherishingly to the effect that – 33(1) In the determination of his civil rights and obligation, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.

As alluded to above, the doctrine affair hearing is not a technical principle. It is rather one of substance. It is not even the question of whether a party is entitled to be heard before a decision is reached; but whether he had in fact been accorded an opportunity to be heard. See Bamaiyi v. The State (2001) 8 NWLR (Pt. 715) 270 @ 284; (2001) FWLR Part (Pt.46) page 956 at 974 paragraphs D – E per Uwaifo JSC thus –

Once an appellate court comes to the conclusion that the party was entitled to be heard before a decision was reached but was not given the opp0l1unity of a hearing, the order or judgment thus entered is bound to be set aside. See also Kotoye v. CBN (1989) NWLR (Pt. 98) 419; Ntukidem v. Oko (1986) 5 NWLR (Pt. 45) 909 to the effect that the term –

“Fair hearing within the meaning of section 33(1) of the 1979 Constitution means a trial conducted according to all legal rules formulated to ensure that justice is done to the parties “.Considering the circumstances surrounding the case as a whole, there is no reasonable ground for this court to believe that the appellants’ cherishable rights of fair hearing have been breached in any way by the lower court. Thus, in the light of the above postulations, my answer to issue No.2 is no doubt also in the affirmative.

Hence, the appellant having failed on both issues formulated and determined there above, this appeal also fails and it is accordingly hereby dismissed.

Consequently, the ruling of the lower court dated 08/12/99 refusing the applicant’s application for an order of certiorari in question is hereby affirmed.

The 3 respondents are entitled to the costs of this appeal which I assessed at N7, 500.00.

---

Other Citations: (2006)LCN/2107(CA)