Barrister J. C. Uwazuruonye V. The Governor of Imo State & Ors (2004)
LawGlobal-Hub Lead Judgment Report
DAVID ADEDOYIN ADENIJI, J.C.A.
This is an appeal against the decision of the High Court of Imo State, sitting at Owerri and delivered on 11th March, 1996, by L.C. Allinor J. The appellant being dissatisfied appealed to this court.
The plaintiff/appellant had filed an originating summons in the court below, seeking answers to the following:
“(1) Whether the criminal jurisdiction conferred on the Customary Courts in Imo state by virtue of section 14 of Edict No.7 of 1984 and shown in Column 1 of the Third Schedule to the Edict is not void in view of section 247 of the 1979 Constitution?
(2) Is prerogative writ an originating process or procedure?
(3) If the answer in issue 2 above is in the affirmative, is it proper and lawful to initiate same in the Customary Court of Appeal – Imo State which is conferred with only appellate jurisdiction by the 1979 Constitution?
(4) Can the 1st defendant by way of an Edict confer an additional original jurisdiction on the 3rd defendant, when section 247 of the Constitution has provided for only appellate and supervisory jurisdiction in matters relating to customary law?
(5) If the answer in 4 above is in the negative, is the purported amendment conferring original jurisdiction on the 3rd defendant by virtue of section 3(d) of Edict No.6 of 1989, which amends the principal edict by adding a new section 79 not void and unconstitutional by virtue of section 247 of the 1979 constitution?
(6) Is section 17(2) of the Magistrate Court Law (Amendment) Edict 1990 (Edict No.3 of 1991) conferring unlimited jurisdiction to the Chief Magistrate Courts or Senior Magistrate Courts in suits or matters relating to title or interest in any land not void by virtue of sections 39 and 41 of the Land Use Act, 1978. (See pages 5-6 of the records of appeal)?”
The lower court in a considered judgment declared some of the provisions of the law complained of null and void, but did not go on to nullify section 3(d) of Edict no. 6 of 1989, in accordance with the prayer of the appellant. Against that refusal to so annul that section, the appellant has appealed.
In that single regard only, the appellant distilled two issues for determination to wit:
(1) Whether the 1st defendant/respondent was right in amending Section 247 of the 1979 Constitution by an Edict conferring original jurisdiction on the 3rd defendant/respondent (Customary Court of Appeal Imo State) to hear applications on prerogative writs.
(2) Whether the Customary Court of Appeal, Imo State (3rd defendant/respondent) being an appellate court can hear any application on prerogative writs.
On his part the counsel for the respondents formulated 3 issues for determination to wit:
Did the learned trial Judge err in law, when he held that the purported amendment of Edict No.7 of 1984 (Imo State) by section 3(d) of Edict No.6 of 1989, which amends the Principal Edict by adding a new Section 79 which confers original jurisdiction of Customary Court of Appeal, Imo State to hear prerogative writs is not void and unconstitutional by virtue of section 247 of the 1979 constitution?
Did the learned trial Judge err in law, in holding that original jurisdiction as used in Edict No.6 of 1989 (Imo State) means supervisory jurisdiction.
Did the learned trial Judge err in law, by holding that the Customary Court of Appeal, Imo State is competent to hear actions on prerogative writs?
At the hearing, counsel for the appellant adopted his brief filed and maintained that it was wrong for the court to suggest amendment of the law.
On issue No.1 above counsel reproduced section 9 of Edict No 6 of 1989 and went to submit that an Edict is by the hierarchy of legislations inferior to the unsuspended part of the 1979 Constitution. He cited Lekwot v. Judicial Tribunal (1993) 2 NWLR (Pt 276) 410, where the hierarchy of legislations was stated: Counsel added that where ever an edict is in conflict with the constitution, the Edict would to the extent of that inconsistency be void.
He then referred to the Council of the University of Ibadan v. Adamolekun (1967) 1 All NLR 213. Counsel also referred to the provisions of Section 47(1) of the 1979 Constitution (2) of the Constitution, counsel held the view that the jurisdiction to be conferred by the Governor of Imo State or the House of Assembly of a state must conform with section 247(1) of the 1979 constitution and such jurisdiction could never be original, but appellate and supervisory in relation to civil matters relating to customary law.
According to counsel, the 1st respondent however purported to amend section 247(1) of the 1979 Constitution by conferring original jurisdiction on the 3rd respondent to hear prerogative writs which he said is essentially an originating process. He then wondered if the 1st respondent had the competence to amend the constitution by the way of an Edict. Counsel referred to the case of Iyamu v. Aigbiremwen (1992) 2 NWLR (Pt.222) 233 at 242 per Ogundare, JCA, Counsel also referred to the observation made by the trial Judge on page 27 of the record to the effect that section 79 of Edict No.6 of 1989, had not affected the jurisdiction of the High Courts in respect of the prerogative writs.
This the learned Counsel for the appellant believed was a misconception which led the court to say that the Customary Court of Appeal in Imo State could hear matters on the prerogative writs, thus, failing to examine the constitutionality of same. Counsel went on to attack the view of the trial Judge who said that section 247(1) of the 1979 constitution did not set out the procedure to be adopted by the Customary Court of Appeal in the exercise of its supervisory jurisdiction conferred on it. That portion counsel termed as speculative finding since the 1st defendant was not supposed to provide a procedure for putting into effect, the provision of the Edict.
Only the President of the Customary Court of Appeal he said could perform such function going by section 73 of Edict No. 14 of 1984. Counsel submitted further that it was wrong for the lower court to say that Edict No.6 of 1989, was made to provide the necessary procedure as that could do havoc to section 247 of the 1979 constitution. The finding he said was perverse.
Counsel referred to Subor v. Asemakeme (1997) 4 NWLR (pt.502) 671 at 683 per Akpabi, JCA on section 224 and 247 of the 1979 Constitution and concluded that Edict No. 6 was not capable of amending section 247 (1) of the 1979 Constitution. He also referred to Jallo v. Military Governor of Kano State & Anor (1991) 5 NWLR (Pt. 194) 754 at 763. He ended by submitting that the trial Judge was in error by refusing to declare Edict No.6 of 1989, which purported to amend Section 247(1) of the 1979 Constitution void.
The counsel for the respondents on his part at the hearing urged the court to discountenance the submissions of counsel as regards the courts suggestion that the law be amended because it never formed part of the appellant’s brief.
On his issue No.1, he submitted that Edict No.6 of 1989 did not amend section 247 of the 1979 constitution, but rather complemented it. Counsel reproduced section 247(1) & (2) of the 1979 Constitution which he said is in pari materia with section 282 (1) & (2) of the 1989 Constitution. Counsel emphasized the supervisory jurisdiction conferred on the Customary Court of Appeal under section 279 (2) of the Constitution, which he said, is the same as supervisory jurisdiction over the prerogative writs. Counsel referred in that connection to Black’s Law Dictionary, 6th Edition page 1438, where the word supervise was defined and added that from that definition, the power to supervise prerogative writs was obvious. That definition counsel said was in consonance with the court’s reasoning on the subject. Counsel relied on R. v. Nats Bell Liquors Ltd. (1922) 2 A.C. 128 at 158 and urged this court to hold that the courts finding in paragraph 3 of page 29 was correct.
He also held that the view that the courts pronouncement that section 79 of the Edict No.6 of 1989, provided a procedure for the exercise of such supervisory jurisdiction was not wrong. Counsel went on to say that the decided cases cited by the appellant, that is, the case of Lekwot and that of Adaemolekun were distinguishable from this case. In any case counsel added, the then Military Governor had the power to enact section 79 by way of amendment to Edict No.6 of 1989 and the Governor has a duty to make laws for the peace, order and good governance in a state going by section 2 subsection 3 of Decree (Now Act) No.1 of 1984 and that did not conflict with section 247 of the 1979 Constitution.
The use of the word original jurisdiction was not fatal since there was nothing like original prerogative writ anyway and if the word original was struck out, it would not alter the con of the section. Counsel rounded up by urging this court to affirm the judgment of the lower court in that regard by holding that section 79 of Edict No.6 of 1989 is not unconstitutional and also not inconsistent with section 247(1) of the 1979 Constitution.
It is obvious that issues have generally been narrowed down in this appeal and the statutes together with their wordings calling for examination and interpretation are:
Section 247 (1) & (2) of the Constitution of the Federal Republic of Nigeria, 1979, which is the same as section 282(1) & (2) of the 1999 Constitution.
Section 79 of the Edict No.6 of 1989.
The import of the words supervisory used in section 247(2) of the 1979 Constitution.
Section 247 (1) & (2) of the 1979 Constitution provides:
(1) “A Customary Court of Appeal of a State shall exercise appellate and supervisory jurisdiction in civil proceedings involving questions of customary law.
(2) For the purposes of this section, a Customary Court of Appeal of a State shall exercise such jurisdiction and decide such questions as may be prescribed by the House of Assembly of the State for which it is established.”
On a close examination of the above provision, it can be seen that the Customary Court of Appeal is vested with both appellate and supervisory jurisdiction in civil matters involving questions of customary law. In other words, it can hear the regular appeals and also handle supervisory matters that are matters which do not necessarily come to it by way of normal appeals. Such matters subject to higher courts supervision normally include application for the writ of certiorari. Prohibition, mandamus and habeas corpus etc, which are classified as prerogative writs.
Blacks Law dictionary, 6th Edition cited by respondents’ counsel puts it succinctly to mean;
“Control exercised by courts to compel inferior tribunals to act within their jurisdiction to prohibit them from acting outside their jurisdiction and to reverse extra jurisdictional acts.”
The above properly construed touches on all the forms of prerogative writs already listed supra.
Subsection (2) of section 247 of the 1979 Constitution however went on to specify the mode of acquisition of such powers via legislation by the House of Assembly of a State. That exactly is how and where section 79 of the Edict No.6 of 1989 comes into play. It provides –
“The Customary Court of Appeal shall have and exercise original jurisdiction in any matter in which a prerogative writ is sought against a Customary Court.”
The words due for consideration in this connection are the words “original jurisdiction” and the word “prerogative writ’ for they do not occur in the principal law to wit section 247 (1) & (2) of the 1979 constitution and that appears to be the main bone of contention. The appellant is of the view that the new section 79 provided by the Customary Court (Amendment) Edict, 1989, which amended the existing Customary Court Edict is unconstitutional because it ran counter to the provisions of section 247 (1) & (2) of the 1979 Constitution.
The respondents’ counsel however holds a different view saying that section 79 merely complements section 247 (1) & (2) of the 1979 Constitution. It is true that section 247 (1) did not contain the words “original jurisdiction” as now incorporated in the Edict as amended. Neither did the said section 247 make mention of the word “prerogative writ”. To my mind, this purport and intent of the lawmakers are clearly discernible in sub-section (2) of section 247 of the 1979 Constitution. The words used in sub-section 1 include the word “supervisory” which Black’s Law Dictionary has defined as quoted supra. Subsection 2 of section 247 of 1979 Constitution also prescribed how the Customary Court could validly acquire the powers to exercise such function through legislation by the State House of Assembly.
I however feel that having gone this far; it is necessary to see if in fact the appellant in this case has indeed, a reasonable cause of action to institute this suit. That leads to a close look at the relevant paragraphs of the affidavit filed in support of the originating summons:
(1) That I am the plaintiff in this suit
(2) That I sued the defendants as per my Originating Summons which raised certain fundamental legal issues touching on the practice and procedure of law in Imo state and Nigeria.
(3) That I am a private legal practitioner and was called to the Nigerian Bar in 1984 and have been in practice in Owerri since after my call.
(4) That as a legal practitioner I have paid my 1995 annual practising fee for which the photocopy of the receipt is attached as exhibit ‘A’.
(5) That as a legal practitioner in Nigeria I know as a fact that there is in existence the 1979 Constitution upon which the acts of the Executive and even judiciary are measured and scrutinized.
(6) That as a lawyer, I owe it as a duty to see that the provisions of the 1979 Constitution and other laws of Imo State and the Federal Republic of Nigeria are obeyed.
(7) That as a legal practitioner and in the course of my professional duties I have come across the various Edicts and the amendments mentioned in my Originating Summons.
(8) That in the course of my duties also I have read in extenso the provisions of the 1979 Constitution and the Land Use Decree.
(9) That having read the various enactments mentioned above, I advised myself and also most verily believe that the various Edicts mentioned are contrary to the 1979 constitution and the Land Use Decree.
(10) That the courts have been dealing, acting and in most cases executing unconstitutional acts occasioned by the various Edicts mentioned.
(11) That as a legal practitioner, I know that the 1st defendant is not competent to purport to amend any section of the constitution by way of an Edict.
(12) That as a legal practitioner, I know as a fact, that prerogative writ is an originating process which cannot be initiated at the Customary Court of Appeal except the High Court.
(13) That by the Customary Courts assuming jurisdiction in some criminal matters as Edict No.7 of 1984 provides, it is doing great havoc to the Constitution and also impeding the rights of appeal of many citizens of Nigeria.
(14) That I know as a fact that appeal lies from Customary Court to Customary court of appeal.
(15) That I know that the Customary Court of Appeal has no criminal jurisdiction.
(16) That it is a fact that any person convicted by the Customary Court in respect of any criminal offence cannot have a right of appeal.
(17) That it is also a fact that it is only the High Court and Customary Courts that are given jurisdictions to hear matters relating to title to land and not the Magistrate Courts.
(18) That the various amendments contained in the Edicts are in conflict with the constitution and their existence in our laws constitute constitutional illegalities.
(19) That it will be in the interest of justice to erase these amendments from our law books through the order of the court.”
At a glance one would see that the plaintiff/appellant is clearly doing a yeoman’s job. He however, deposed in the affidavit as borne out by paragraph 6 of the affidavit that he owes it as a duty to see that the provisions of the 1979 Constitution, other laws in Imo State and the country as a whole are obeyed. He went on to aver in paragraph 10 that the courts have been dealing and in most cases executing unconstitutional acts occasioned by the various Edicts mentioned. There lies the crux of the matter.
One would want to know at what stage a lawyer could act in such circumstances. I believe that the appellant has by himself supplied the answer that is at the very time a court embarks on an unconstitutional act. In other words, there must be an event in the handling of which the points now raised in vacuum can be canvassed in court with the appropriate relief sought and secured. In this particular instance, the whole thing has assumed the colour and character of an academic exercise. There is no event or exact legal controversy, on which the submissions are based.
In such a case, the suit can be said to lack reasonable cause of action. This is more so when it is not based on any particular actionable tort. The action taken by the appellant is at best premature and the court is not duty bound to entertain hypothetical suits. It is true that apparent anomalies must be corrected but there are ways of doing so.” See the case of O. A. Alalade v. O. Morohundiya (2002) 16 NWLR (Pt.792) 81 at 102 per Chukwuma-Eneh, J.C.A. who had this to say on the issue of cause and how to determine if there is one. He said thus on page 102 paragraphs E-F inter alia-
“Regarding relief three, the appellants did not set out their legal basis for as it were championing unsolicited the cause of Abutu-Daniel i.e. assuming there were anything constituting champerty and maintenance as between Mr. Abutu-Daniel and the respondent. The appellant did not advert to the legal basis for intervening in the client/solicitor relationship reached, that is, by contract between Abutu-Daniel and the respondent. See Rondel v. Worsely (1969) 1 AC 191.” (Italics for emphasis).
Oguntade, J.C.A (as he then was) in his contribution added this bit inter alia on page 105 B-C:
“However, when the allegation made against the respondent are scrutinized and evaluated, they would amount at the highest to no more than professional misconduct. This is if the allegation could be sustained. The respondent never had any contract with the appellant which it could be said he had breached. The particulars of allegations of fraud made against the respondent were not pleaded. Clearly, there was no reasonable cause of action disclosed on the appellants statement of claim”. (Italics for emphasis)
The key words in Chukwuma-Eneh’s decision vis-a-vis this particular case are as underlined supra, that is, the absence of legal basis for championing unsolicited cause of another, hence, the appellant in that case was said to have no legal basis for intervening in the matter. Oguntade, JCA, chipped in that bit among others that the respondent never had any contract with the appellant, which it could be said he had breached. In other words, he simply had no business intervening or interfering in the matter. See also, Mobil Producing Nig. (Unltd.) v. LASEPA (2002) 18 NWLR (Pt 798) page 1 at page 38 paragraphs C-H where Ayoola, J.S.C had this to say inter alia:
“If any thing, there does not seem to be any controversy disclosed in the affidavit in support of the originating summons between the 2nd respondent (FEPA) and the appellant as to FEPA’S powers and the status claimed by the appellant for its report.”
In this suit too as it were, there has been no controversy as such between the appellant and the respondents. There is no particular suit to which the law complained of was applied and which can give rise to a controversy and the interpretation of the laws applied. That, of course is why I put it mildly by saying the action is misconceived and premature, see Ecobank (Nig) PLC v. Gateway Hotels Ltd & Anor (1999) 11 NWLR (Pt 627) 397 at 418 that is, contribution by Olagunju, JCA on page 418 when he said inter alia:
“That brings me to the core of the matter what is the appellant’s cause of action, if there is, on the facts pleaded in her statement of claim, the only reference source allowed on the applicable principle? ‘Cause of action’ was defined by the supreme court in Egbue v. Araka (1988) 3 NWLR (pt84) 598, 613, as-
‘The fact or combination of facts which give rise to a right to sue. This right to sue consists of the wrongful act of the defendant, which gives the plaintiff the right to complain and the damage consequent to the wrongful act’.”See also Hanseatic International Ltd. v. Martin Usang (2000) 13 NWLR (Pt 784) 376 at 408 paragraphs A-B where Edozie, J.S.C. held inter alia -“The respondent’s cause of action is on negligence.
It is trite law that cause of action is the entire set of circumstances giving rise to an enforceable claim. Savage v. Brown Uwaechi (1972) 3 Sc 214 at 221. It is every act that it would be necessary for the plaintiff to prove if traversed in order to support his right to the judgment of the court. Read v. Brown (1988) 22 B 128.It also includes things necessary to give a right of action – Emiator v. Nigerian Army & Ors (1999) 12 NWLR (Pt 631) 362. Where the statement of claim discloses no cause of action it will be struck out and the action dismissed. In the instant case, the respondent having established all the elements of the tort of negligence his failure to establish the exact date the accident in question occurred is irrelevant since that date is not an ingredient of the tort of negligence;” (Italics for emphasis)
See also Ambrose Anigbogu v. Silas Uchejigbo (2002) 10 NWLR (Pt.776) 472 at page 488 paragraphs G-H.
I have gone this length to show how my mind is working. I hold the strong belief that though as a citizen and as a lawyer the appellant has a right to take interest in whatever laws are enacted for the running of government machinery, but when the occasion has not arisen it may amount to mere academic exercise to champion such cause.
I need say at this juncture that the present exercise is as to section 3(d) of Edict No.6 1989, which was said to have amended, the principal Edict by adding a new section 79 said to have conferred original jurisdiction on Imo State Customary Court of Appeal. This is so because there is no cross appeal hence, this judgment deals mainly with the subject matter of the appeal.
In the result, the appeal is misconceived and lacks merit. The originating summons discloses no cause of action and the appeal is accordingly dismissed. No order as to costs.
Other Citations: (2004)LCN/1555(CA)
