Alhaji Isa Noekoer V. Executive Governor Of Plateau State & Ors (2018)
LAWGLOBAL HUB Lead Judgment Report
AMIRU SANUSI, J.S.C.
The appellant herein, lodged this appeal against the judgment of Jos division of the Court of Appeal [“the Lower Court” or “Court below”] delivered on the 9th day of December, 2014 which had earlier affirmed the judgment of the High Court of justice, Plateau State [the trial Court] delivered on 20th of May, 2013.
The Kwalla District of Qua’an Pan local government of Plateau State, as at the time material to this case, had six villages each having a village head as its traditional head/leader. Each of the six village heads was by law eligible to contest the stool of the district head of Kwalla district in the event of having a vacancy of the stool.
On the 16th of May, 2001, the appellant, who was the village Head of Shangfu, contested for the stool of District Head of Kwalla following a vacancy of that stool along with one Michael Lapang who was the village head of Chun village. The appellant was declared winner having scored 3 votes as against the 2 votes scored by the said Michael Lapang and was accordingly declared winner.
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Dissatisfied with the outcome of the selection/election exercise, Michael Lapang took out a Writ of Summons and filed an amended statement of claim against the defendant, now appellant who was 6th Defendant and the 1st-5th respondents who were the 1st-5th defendants in the said suit before the High Court of Plateau State [the trial Court].
At the end of the trial, the learned trial judge entered judgment in favour of Michael Lapang. Dissatisfied with the judgment, the appellant together with 1st-5th respondents filed an appeal against the said judgment, Mr. Lapang also filed a cross appeal [See pages 61-66) of the record of appeal.
Before the appeal and the cross appeal could be heard, Michael Lapang died and consequently, the appellant’s counsel withdrew the appeal and both the appeal and the cross appeal were subsequently struck out.
After the withdrawal and subsequent striking out of the appeal and cross appeal, the 1st-5th respondents got prepared to take steps to comply with the order of the trial High Court to conduct fresh election to the stool of Kwalla District Head. Thereupon, the 6th respondent petitioned against the continued stay of the appellant
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in office as District Head of Kwalla in spite of the subsisting judgment of the trial High Court which has described the selection of the appellant as contrary to native law and custom and the gazette regularising the selection and appointment of person to fill the vacant stool of Kwalla District head.
Before the 1st-5th respondents could conclude the preparations to conduct fresh election, the appellant took out an Originating Summons against all the present respondents raising four questions for determination as shown on pages 76 to 153 of the record of appeal. At the end of the trial, judgment was entered against the appellant [See pages 341-250 of the record].
Dissatisfied with the judgment of the trial Court, the appellant appealed to the Court below, albeit unsuccessfully, hence a further appeal to the Supreme Court.
Parties filed and exchanged briefs of argument. The learned counsel for the appellant filed brief of argument on behalf of the appellant on 19th October, 2015 dated 28/9/2015. The said brief of argument was settled by one Edwin O. Okoro Esq. In the appellant’s brief, two issues were identified for the determination of this appeal which read as below:-
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Whether the learned justices of the Court of Appeal were right to have found that the judgment of the Plateau State High Court in a Chieftaincy matter in suit No.PLD/S.5/2001 is a judgment in rem which survived the death of Michael Lapang in whose favour judgment was given and who died during the pendency of the appeal against the said judgment of the Court of Appeal in Appeal No.CA/J/192/2006 and that the 1st to 5th Respondents can enforce the said judgment to suspend the Appellant for purposes of conducting fresh selection into the stool of District Head of Kwalla (Ground no.3); and
- Whether going by the three final reliefs granted by the trial judge in his judgment in Suit No.PLD/S.5/2007, the selection of the Appellant as the District Head of Kwalla on the 16th May 2001 was nullified or declared to have been nullified as held by the learned Justices of the Court Appeal (Grounds Nos.1 and 2).Suffice it to say, that the Appellant’s learned counsel also filed Appellant’s Reply Brief on 11th February, 2016 also settled by the same Edwin O. Okoro Esq. These two briefs of argument were adopted by the appellant’s learned counsel
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on 23rd January, 2018 when the appeal was argued before us.
On the part of the respondents, a joint brief of argument was also filed on their behalf on 2nd December 2015 and the said brief of argument was settled by N.D. Shaseet Deputy Director of Public Prosecution, Plateau State Ministry of Justice. At the hearing of the appeal on 23rd January, 2018, the said respondents’ brief was also adopted on their behalf. The learned respondents’ counsel as well adopted the dual issues for determination raised by the appellant as reproduced above.
SUBMISSIONS BY LEARNED COUNSEL ON THE ISSUES FOR DETERMINATION.
The first issue queries whether the Court below was right to have found that the judgment of the Plateau State High Court in suit No.PLD/S.5/2001 is a Judgment in rem which survived the death of Michael Lapang in whose favour the judgment was given and who died during the pendency of the appeal against the said judgment and whether the 1st to 5th respondents can enforce the said judgment to suspend the appellant for the purpose of conducting fresh selection.
Learned counsel referred to the case of AROWOLO V AKAPO [2003] 8 NWLR [Pt. 823] 451 at 503;
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He also submitted that the legal consequence where the deceased did not prosecute the action in representative capacity is that the action even where the judgment is obtained, dies with him. He argued that in the instant case, late Michael Lapang State had prosecuted Suit No. PLD/S.5/2001 in his personal capacity as one of the contestants to the stool of District head of Kwalla. He contended that the Court below after examining the reliefs, was wrong to have held that the judgment in Suit No.PLD/S.5/2001 was in rem and not in personam. He contended that the order or orders made by the trial Court in the said suit are meant to compel the appellant as 6th defendant from parading himself as the District Head and restraining the 1st-5th respondents from recognising or dealing with appellant [6th defendant] as District Head. He therefore submitted that these orders qualify as judgment in personam as they are against the appellant as 6th defendant and 1st-5th defendants in the suit. He argued that the Court below considered relief six[6] claimed by Michael Lampang instead of the three orders made by the Court in the said suit.
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He argued that the order of the trial Court in the said suit, merely declared that the selection is contrary to Native law and custom which does not affect the appellant because his selection was not nullified for there to be a fresh one. Learned counsel also submitted that the 1st-5th respondents cannot enforce the judgment in suit No.PLD/S.5/2001 without initiating a fresh proceeding for the enforcement of the order. He referred to the case of IRAGBIJI V. OYEWINLE [2013] 13 NWLR (Pt.1372) 566 at 580. He further argued that the 1st-5th respondents cannot turn round to blow hot and cold at the same time after having the appeal being withdrawn on the ground that the cause of action does not survive the respondent, late Michael Lapang and therefore cannot again enforce the judgment against the appellant who was the 6th defendant, He urged this Court to resolve this issue in favour of the appellant.
With regard to Issue No.2 which deals with whether the selection of the appellant was nullified, the learned counsel argued that none of the three reliefs granted by the High Court nullified the selection of the appellant as the District Head of Kwalla.
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He contended that mere declaration that the selection or election of the District head of Kwalla is contrary to native law and custom does not qualify as nullifying the selection and therefore enforceable. He contended that there must be specific order prayed for and made to nullify or set aside the selection adjudged to be contrary to the law. He urged the Court to also resolve this issue in favour of the appellant and to finally allow this appeal.
In his response, the learned counsel for the respondents stated that the action in Suit No.PLD/S.5/2001 was brought for the purpose of declaring or challenging a status as the action challenged the selection of the 6th defendant/appellant as the district head and for an injunction restraining the 1st-5th defendants, their servants and agents from recognising or dealing with him as the District Head of Kwalla. Having regard to the above, he then urged the Court to hold that the Court below was right in arriving at the conclusion that the case was an action in rem. He referred to the judgment of the trial Court or the Court below at pages 137 -138 of the Record.
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He contended that the consequential order is of necessity and it flows from the decision of the Court which is not at cross purpose or contrary to its decision. He argued that the judgment in the said suit is not declaratory but executory i.e the judgment is declaratory as per relief [a] and executory as per reliefs (e) and (f). He cited the cases of OBA RASHEED AYOTUNDE OLABUNMI and Anor VS OLABODE OYEWINLE & 2 ORS [2013) 7 SCNI 919 at 929. He urged the Court to resolve this issue in favour of the respondents.
Also the learned respondents’ counsel on issue no.2, submitted that by granting reliefs (a), (b) and (f), the entire selection exercise and all other incidental steps taken in respect of selection exercise became a nullity as held by the trial Court and confirmed by the Court below. He urged the Court to also resolve this issue in favour of the respondents and to finally dismiss the appeal.
REPLY OF THE APPELLANT
The Reply brief filed by Appellant contains nothing new or it can at best be described as a reargument of what had already been argued in the appellant’s main brief.
RESULUTION OF ISSUE FOR DETERMINATION
In treating this appeal, I intend to consider the two
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issues set out above and agreed by the parties to this appeal, together.
The first issue principally poses the question whether the judgment of the trial Court delivered on 20th May, 2013 in suit No.PLD/S.5/2001 is a judgment in rem which survived the death of Michael Lapang as held or found by the Lower Courts judgment in appeal No. CA/J/192/2006 delivered on the 9th December 2014, which is now being appealed against. In approaching the question posed supra, I think it will be pertinent to state that the appellant herein, holds the stance that the judgment of the trial Court is judgment in personam, contrary to the findings of the two Lower Courts.
Before determining such question, I think it will not be out of place to reproduce hereunder, the findings and orders made by the trial Court which were upheld by the Court below. At the end of the proceeding, the trial Court made far reaching orders as reproduced here-under even at the risk of being repetitive, when it ordered thus:-
“(1) I declare that the election or selection conducted on 16th May 2001 by the agents of the defendants is contrary to Native Law and Custom regulating the stool of the District Head of Kwalla.<br< p=””
</br<
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(2) I make an order of perpetual injunction restraining the 6th defendant (plaintiff herein) from parading or representing himself as the District Head of Kwalla.
(3) The 1st to 5th defendants, their agents, servants and Privies are hereby restrained from recognizing or dealing with the 6th defendant as District Head of Kwalla.”
As shown in the printed record, the above orders were made by the trial Court on 17th July, 2005 and same were also made four years before Michael Lapang died and by extension therefore, the said orders were made four years before the withdrawal and subsequent striking out of the appeal and the cross appeal by the Court below. Therefore, with the striking out of the appeal, the judgment of the trial Court in Suit No.PLD/S.5/2001 remains valid and subsisting unless upturned by an appellate Court having competent jurisdiction. It is well settled law, that the judgment of a competent Court subsists and remains binding until it is set aside on appeal. That is not the position in this instant case since the judgment of the trial Court was never set aside. See OJO AJAO & Ors Vs OPOOLA ALAO & Ors [1986] NWLR (pt.45) 802;
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AMIDA & Ors Vs TAIYE OSHOBOJA (1984)768 at 76/77; ROSSEK v. ACB Ltd (1993)10 SCNJ 20 or [1993] NWLR (Pt. 312) 382; EZEOKAFOR vs EZEILO (1999) 9 NWLR (619) 513; GOMWALK Vs MILAD PLATEAU STATE (1998) 7 NWLR (Pt.558) 413. It would appear to me that with the withdrawal of and the striking out of the appeal at the Court of Appeal i.e the Court below, there is no pending appeal against the judgment of the trial Court.
Going by the findings of the trial Court and also the far reaching orders it made against the 1st-5th defendants [now respondents) herein, I must make bold to say, that the said defendants (now respondents) merely took right steps to comply with the orders made against them by the trial Court. By the orders of the trial Court, the stool of the District Head of Kwalla thereupon became vacant and therefore efforts must be put in gear to fill in that vacant stool which exists right from the date of the judgment of the trial Court, For the said respondents to refuse to take steps in compliance with the Court order, it will, to my mind, amount to disobedience of that Court’s order or would even be contemptious of the Court.
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See Lagos State Vs Ojukwu (1986) 1 NWLR (Pt.18) 621; Babatunde Vs Olatunji (2000) 2 SC 9.
It seems to me, that when the 6th defendant/now respondent wrote a petition, he was just trying to ginger up the defendants to do the correct thing or to comply with the orders of the trial Court. And even without the petition by the 6th defendant/respondent, the 1st to 5th Respondents were expected to and indeed were duty bound to execute the orders made by the trial Court which were made against them or directed at them, since that judgment remained valid and subsisting in as long as it was never set aside on appeal.
This brings me to the difference between and judgment in rem and a judgment in personam. In the case of Ikenyi Dike 7 Ors v. Obi Nzeka II and Ors. (1986) LPELR 945 SC or (1986) NWLR (Pt.34)144 this Court had this to say on judgment in personam;-
“Etymologically an action in personam is an action brought against a personam, an action to compel to do or not to do a particular course of action. Actions for damages in tort or for breaches of contract are clearly directed against the person as oppose to actions which are brought for the purpose of declaring or challenging
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status, like proceedings under the matrimonial laws of the country or of legitimacy or an action directed against a ship or the res (and so known as an action in rem) or the like. Generally, therefore, all actions requiring him to do or not to do or take or not to take an action or course of conduct must be and are action in personam.”
My understanding of what judgment in rem means is that it is simply a judgment of Court of competent jurisdiction which determines the status of a person or a thing as distinct from the particular interest of a party to the litigation. By using the phrase i.e the application of the term “to persons,” it presupposes that it must affect the res in whichever way, such as by condemnation, forfeiture, per se, stops persons from averring the status of persons, other than what the Court declares or made it to be. It is a rem is a judgment contra-mundum binding on both parties and their agents or privies and even on non-parties. It also means an adjudication pronounced upon the status of a particular subject-matter by a Court or a Tribunal having the competence or authority to adjudicate on such matter.
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Again, in the case of Ikenye Dike & Ors Vs Obi Nzeka and Ors LPELR 94 this Court went further to also State as follows:-
“It is therefore necessary to have a clear idea of the distinction between a judgment in rem and a judgment in personam. A judgment is said to be in rem when it is an adjudication pronounced upon the status of some particular thing or subject matter by a Tribunal having the jurisdiction and competence to pronounce on that status. Such a judgment is usually and invariably founded on proceedings instituted against or on something or subject matter whose status or condition is to be determined. It is therefore binding on all persons in so far as their interest in the status of the property or person is concerned. That is why a judgment in rem in a judgment contramundum-binding on the whole world parties and non parties. A judgment in personam on the other hand is on an entirely different footing. It is a judgment against a particular person as distinguished from a judgment declaring the status of a person or thing. A judgment in personam will be more accurately called a judgment inter parties.
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A judgment in personam usually creates a personal obligation as it determines the rights of parties interse to, or in the subject matter in dispute whether, it be land or other corporeal property or a liquidated or unliquidated demand but does not affect status of either of the persons to tie thing in dispute.” (emphasis mine)
Perhaps it will be pertinent at this stage, to reflect on the orders made by the trial Court as highlighted earlier in this judgment in order to determine whether the said judgment was judgment in rem or judgment in personam. The trial Court at the end of the trial delivered its judgment and gave its order on 17/7/2005.
The falcrum of the trial Court’s findings and the subsequent orders made by it as reproduced supra, is to the effect that the selection of the appellant as the district head of Kwalla on 15/5/2001 was nullified because of non-compliance with the provisions of Legal Notice No.34 of 1982.
I am of the firm view, that the judgment obtained by Mr. Lapang in Suit NO.PLD/S.5/2001 had determined the status of the district headship of Kwalla as at that material time. The said judgment made pronouncement on the position of the appellant herein, when it declared that
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his election was against or contrary to the native law and custom regulating the stool in question. The trial Court then went further to make injunctive orders restraining the 6th defendant now appellant, from parading himself as district head of Kwalla. It similarly made an injunctive order restraining 1st to 6th defendants and the appellant as district head of kwalla. To my mind, the judgment of the trial Court has in all respect satisfied the description of judgment in rem and NOT judgment in personam as the appellant portrayed it to be. The Lower Court has in my humble view, rightly held that same is a judgment in rem and it cannot be faulted on that finding and it is therefore correct in upholding the findings of the trial Court in that regard. Also the orders handed down by the trial Court as highlighted above were correctly made in view of the surrounding circumstance of the suit hence the Lower Court was also flawless in affirming or endorsing such orders of the trial Court.
I am not unmindful of the fact that in Suit No.PLD/S.5/2001 the plaintiff did not make any specific claim for an order to nullify the selection of the appellant as district head of Kwalla.
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However, in the judgment, now appealed against, the learned trial judge nullified the selection of the appellant [6th defendant) as district head of Kwalla. It is also the grouse of the present appellant that the trial Court was in error to have nullified the selection of the 6th defendant/appellant as district head of walla since there was no such relief sought by the 6th defendant for the nullification of the selection. To the appellant herein, the mere declaration that the selection or election of the district head is said to have been made contrary to native law and custom, did not in itself amount to nullification of the selection, hence the trial Court’s order in that regard, is of no moment and is unenforceable as suggested by the appellant’s learned counsel. I do not think so.
Now as I posited above and as rightly held by the Lower Court, the judgment obtained by late Michael Lapang was judgment in rem which therefore must be obeyed or complied with by the 1st to 5th respondents herein, who also are duty bound to enforce it even with the passing on of Michael Lapang.
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Sequel to the Court’s declaration that the selection made was not in obedience with the native law and custom, the trial Court granted injunctive orders against the 1st to 5th respondents [then defendants] restraining them from recognizing or dealing with the appellant as district head of Kwalla. Similarly, the 6th respondent [defendant] was also ordered to stop parading himself as district head of Kwalla. It is my view therefore, that the orders of the trial Court are both declaratory and executory. For instance, Relief [a] reads- a declaration that the election on the 16/5/2001 by the agents of the defendants is contrary to native law and custom regulating the stool of the district head of Kwalla i.e Legal Notice No.34 of 1982.
The trial Court granted that main prayer. The consequence of the grant of that main relief in my considered view, has far reaching effect, as it there and then drastically affected the status of his selection and the stool as well. Looked at from the another angle, the stool remains vacant until and unless that order is upturned by an appellate Court which was never so upturned. It therefore remains a subsisting order which also must remain so until and unless set aside on appeal.
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Flowing from it, the Court granted the subsequent injunctive reliefs against both the 1st to 5th respondents on one hand and also against the 6th defendant on the other hand. In the prevailing circumstance therefore, even though the plaintiff in Suit No. PLD/S.5/2001 failed to make any specific claim to the trial Court for an order nullifying the selection of the appellant as district head of Kwalla, the trial Court having declared that the selection to the stool runs riot and violent to the native law and custom, then the most appropriate thing for it to do was to consequentially nullify the selection notwithstanding that it was not specifically prayed for. To my mind, the order for nullification made by the Court amounts to a consequential order which obviously flows from the main or substantive order of the Court granting the first declaratory relief asked by plaintiff which was graciously granted by the trial Court. It is trite law, that a Court has inherent power to make consequential order. A consequential order is simply one which flows directly and naturally from the decision or order made on issues litigated upon and inevitably consequent upon it.
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See Akapo v. Hakeem-Habeeb [1992] 2 NWLR (Pt. 247) 266 or (1992) 7 SCNJ 119 or (1992) LPELR 325 (SC).
A consequential order is one which gives effect to a judgment or order to which it is consequential. See Funduk Engineering Ltd Vs Mcarthur & Ors (1996) 7 NWLR (Pt. 459) 153; Obayagbona Vs Obazee (1972) SC 247; Odofin & Anor Vs Agu & Anor (1992) NWLR (Pt.229) 350. Every Court, be it of first instant or appellate has the power and in fact has the duty and obligation to make any consequential order in the interest of justice and it is irrelevant and of no moment that the particular order was not specifically asked for by either party to the proceedings or appeal. See Prince Yahaya Adigun & Ors Vs Attorney General of Oyo State & Ors (1987) 1 NWLR (Pt.53) 678 at 710; Chief Ebenezer & Ors Vs S.K. Owodunni & Anor (1987) 2 NWLR (Pt. 57) 367. In the instant case, the consequential order on nullification of the selection was given for the sole aim of giving effect to the first or main relief which was prayed for and was granted by the trial Court. It also naturally flows from that first order or relief sought as granted by the trial
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Court. It is therefore my judgment that the trial Court was right in granting it and the Lower Court had also rightly affirmed the findings and the grant of that consequential order made by the trial Court. In the light of these few remarks, I answer the first issue raised by the appellant in the affirmative and consequently resolve it against the appellant.
On the second issue for determination, I must state here that I have partially considered some of the points argued on this second issue while considering or treating the first issue supra. Therefore the points pronounced on relating to this issue should therefore apply as answer to the points raised on this issue. It needs to be emphasized however, that the trial Court had declared that the selection into the stool of district head of Kwalla was made not in compliance with the native law and custom i.e Legal Notice No.34 of 1982. It is because of such non-compliance that the Court granted the first prayed sought by the plaintiff who had earlier failed to seek for an order of nullification of selection.
The trial Court thereupon, granted reliefs (a) (e) and (f).
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As a corollary and it goes without saying, that the selection became a nullity even without saying the selection became illegal, null and void. By way of consequential order, the trial Court granted the order of nullification which also flows from and is as such consequential to the order it had granted on Relief [a] as earlier prayed by the plaintiff. The said consequential order, as I emphatically stated supra, was meant to give effect to its judgment or specifically to its order on Relief (a). In the light of what I posited above, I also have to resolve the second issue for determination against the appellant herein. I accordingly do same.
Finally, it is noted by me, that there are concurrent findings of two Lower Courts in this instant appeal. As is the usual practice in this Court, this Court is always hesitant in interfering with or disturbing the concurrent findings of two Lower Courts, except of course, where there is manifest error which leads to some miscarriage of justice, or a violation of some principle of substantive or procedural law, or that the findings have been shown to be perverse or there is miscarriage of justice.
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I am unable to say that any of these vices are shown or manifested in this instant case, hence I will refuse to interfere with or disturb the findings. See Amadi v Nwosu [1992] NWLR (Pt. 241) 273; Eholor v Osayande (1992)7 SCNJ 217; Ogoala v The State [1991) 3 SCNJ 81 or [1981) 3 SC 80 or (1991) 2 NWLR [Pt.175] 509; Dr. Tunde Bamgboye v. University of Ilorin [1999] 10 NWLR (Pt.622) 290 or [1999] 6 SC (Pt.II) 72; Ezeudu v Obiagwu (1986) 2 NWLR (Pt.21) 218.
In the result, both issues having been resolved against the appellant, this appeal is adjudged by me to be lacking in substance. It therefore fails and is accordingly dismissed. The appellant shall pay the respondents jointly and severally costs assessed at N500,000,00 [Five Hundred Thousand Naira] only.
Appeal dismissed.
SC.562/2015
