Chief Dennis E.a. Etaluku V. Attorney-general, Delta State & Ors. (1997)

LawGlobal-Hub Lead Judgment Report

AKINTAN, J.C.A.

This is an appeal from two rulings delivered by Ogbodu J., sitting at Oleh High Court in Delta State on 22/5/95. The claim before the court was in respect of chieftaincy tussle between the appellant who was the plaintiff in the lower court and the 4th respondent.

Pleadings had been completed at the lower court. According to paragraph 32 of the Amended Statement of Claim, the claim is as follows:-

“1. A DECLARATION that in accordance with the age long tradition, native law, custom and usages of Unuame Community of Igbide the selection and appointment of Otota of Igbide (Otota Ologbo) is done by Unuame community of Igbide Clan.

2. A DECLARATION that the purported withdrawal and/or confirmation of such withdrawal of Otota of Igbide (Otota Ologbo) from the plaintiff by the Directorate of Local Government and Chieftaincy Affairs, Delta State and the purported cancellation of Certificate of Registration No. TC/LS/89/42 issued to the plaintiff by the Government contained in a letter No. CHC.27/Vol.11/482 dated 30th July, 1993 from Directorate of Local Government and Chieftaincy Affairs as irregular, illegal, unconstitutional, incompetent, null and void and of no effect whatsoever.
3. A DECLARATION that the plaintiff is the incumbent Otota of Igbide (Otota Ologbo) in the Isoko South Local Government Area of Delta State of Nigeria.
4. A DECLARATION that the 4th defendant (Chief William Odie) has not been duly appointed as the Otota of Igbide (Otota Ologbo) as required by law and that the purported issuance of Certificate of Registration to the 4th defendant as Otota of Igbide (Otota Ologbo) on 30th July, 1993 is irregular, illegal, wrongful contrary to the Unuame Customary law, unconstitutional, null and void and of no effect and should be set aside.
5. A DECLARATION that there is no existing circumstance to warrant the withdrawal of plaintiff’s chieftaincy title of Otota of Igbide by the 3rd defendant.
6. An order of injunction restraining the 4th defendant whether by himself, his servants, agents or privies or whosoever, from holding himself as the Otota of Igbide (Otota-Ologbo) or wearing any regalia of the Otota of Igbide or permitting himself or taking any steps to be installed or recognised as Otota of Igbide (Otota Ologbo) or performing or causing to be performed any act or function or ceremony connected with the office of Otota of Igbide (Otota Ologbo).
7. The sum of N25,000,000.00 (Twenty Five Million Naira) as damages suffered by the plaintiff as a result of the wrongful acts of the 3rd and 4th defendants complained of.
8. A DECLARATION that the 3rd defendant’s authority has lapsed in accordance with the Igbide Native Laws and Custom.
9. Perpetual injunction restraining the 3rd defendant from further exercising the powers of the Ovie of Igbide Clan.
10. An injunctive order restraining the 1st, 2nd and 3rd defendants and/or any persons acting through and under them from further dealing, recognising and according to the 4th defendant of the privileges, rights, dignity and respect of the Otota of Igbide.
11. An order restraining 1st and 2nd defendants from dealing with and according to the 3rd defendant all the rights and privileges of the Ovie of Igbide.
12. A further injunctive order restraining the 3rd defendant from stripping the plaintiff of the chieftaincy title of Otota of Igbide Clan.
13. An order setting aside Certificate of Registration issued to the 4th defendant as Otota of Igbide.”

As already stated above, pleadings have been completed. The plaintiff filed his Amended Statement of Claim while the 3rd and 4th defendants filed their statement of defence. A joint statement of defence was also filed by the 1st and 2nd defendants. The plaintiff filed a reply to the statement of defence. Thereafter the defendants filed a motion in which they prayed the court for the following relief:”

Dismissing this suit in that-

(a) pursuant to the Traditional Rulers and Chiefs Edict (No.16) 1979 of the Bendel State and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No.12 1994 this Honourable Court lacks jurisdiction to entertain the plaintiff’s claim as set out in the Amended Statement of Claim and Reply to the 3rd and 4th defendants’ Statement of Defence;

(b) the plaintiff’s claim as presently constituted and as set out in the Amended Statement of Claim and Reply to the 3rd and 4th Defendants’ Statement of Defence, discloses no cause of action and/or reasonable cause of action;”

The motion was supported by a 14-paragraph affidavit sworn to by the 3rd defendant. A number of Exhibits were attached to the affidavit. Among the Exhibits attached are a letter dated 30th July, 1993 titled “Revocation of traditional chieftaincy title of Otota of Igbide clan conferred on D.E.A. Etaluku”, and a certificate of registration of a traditional chief under part 3 of the Traditional Rulers and Chiefs Edict 1979 by which William Odie was registered as the Otota of Igbide. The certificate was issued by the Director General for Chieftaincy Affairs. Also attached is another certificate issued by the same Director General and dated 15th May, 1989. Chief D.E.A. Etaluku was by this said certificate registered as the holder of the Traditional Chieftaincy Title of Otota of Igbide.

The letter dated 30th July, 1993 and exhibited along with the affidavit in support of the motion was addressed to Chief D.E.A. Etaluku and signed by C.C. Enwemnwa for Director General, Directorate for Local Government and Chieftaincy Affairs. In the said letter, the writer informed the plaintiff, inter alia, that the registration of his chieftaincy title of Otota of Igbide had been revoked.

The plaintiffs swore to and filed a 13-paragraph counter-affidavit in opposition of the motion. When the motion came up for hearing before the lower court, learned counsel for the parties addressed the court on the matter. Thereafter, the matter was, on 4th April, 1995, adjourned to 17th May, 1995 for the ruling. When the matter came up on the date fixed for ruling, the attention of the learned trial Judge was drawn by Mr. Okpoko S.A.N., learned Senior counsel for the plaintiff, to a motion filed by him in which the plaintiff sought, inter alia, for a transfer of the case to another court for hearing. The motion was supported by two affidavits. The 1st of the two affidavits was a 9-paragraph affidavit sworn to by the plaintiff himself. In it, he alleged, inter alia,  that one Rutherford Agege had informed him that he learnt that the Chief Judge of the State had instructed the learned trial Judge to strike out the claim and that when he narrated the information to Mr. Okpoko S.A.N., his counsel, he was advised by the said Mr. Okpoko to depose to an affidavit as to what he told him if he was sure of the truth of his facts, hence he deposed to the affidavit.

The 2nd affidavit was a 12-paragraph affidavit sworn to by Rutherford Agege. In it, the deponent narrated his story as to how he met the 4th defendant who told him efforts he was making to end the litigation between himself and the plaintiff and how the Chief Judge of the State was assisting in that respect. He further deposed, inter alia, that the Chief Judge had promised to instruct the learned trial Judge to strike out the claim and that he should come back at a later date to hear the result of his instruction to the learned trial Judge. That when he went back, he was told by the learned Chief Judge that he had given specific instruction to the trial Judge to strike out the case and that that would be the end of the matter.

The court did not deliver the ruling fixed for that day in view of the development brought to the notice of the court by Mr. Okpoko, S.A.N. The court’s entry for that day reads, inter alia, as follows:-

“It is necessary to consider the application that has been made by the learned Senior Advocate. The case is therefore adjourned to 22nd May, 1995 for ruling.”

Before the new date fixed for the ruling, a number of counter affidavits were sworn to and filed in respect of the matter. One of such counter affidavits was a 14 paragraph counter affidavit sworn to by the 4th defendant. In it, he denied ever having any discussion with Rutherford Agege as claimed in his affidavit in question. He also alleged that he was at no time on friendly terms with Rutherford Agege and that if in fact he had access to the learned Chief Judge, he would not under any condition reveal such to Rutherford Agege because he knew him as part of those opposing his claim before the court. Also sworn to and filed by the 3rd defendant is a 9-paragraph affidavit. The deponent also denied that he had anything to do with Rutherford Agege in respect of the matter and that the contents of the affidavit sworn to by Rutherford Agege were lies and that the man was not neutral in the matter.

When the matter came up on 22nd May, 1995, the learned trial Judge delivered the two rulings which now formed the subject matter of this appeal. The 1st of the 2 rulings relates to the application for a transfer of the case to another court; while the 2nd ruling is in respect of the motion by which the court was prayed, inter alia, to strike out the case for want of jurisdiction.

In the first ruling, which was in respect of the application for transfer of the case to another Judge, the learned trial Judge held, inter alia, that no sufficient case was made out to warrant the grant of the prayer. The learned trial Judge held that it had not been shown that the instruction which was to be given to him would be to strike out the case at all cost regardless of the merit of the application and that even if that had been the instruction it was not his practice to take such instruction from anybody. The learned trial Judge held that the whole affair wore the look of a blackmail designed to hold back the hand of the court, perhaps on an instinctive intuition of the suspected outcome of the ruling on the objection. The learned Judge said further that it was necessary to point out from the affidavit evidence filed in support of the application, that no allegation of wrong doing was made against him except the fear that he might have received instruction from the Chief Judge. He emphasized the point that his court was independent of any influence as expected of it from anybody and that any attempt to sidetrack his court by employing vicious tactics such as blackmail, as in the instant case before him, would be resisted. He accordingly refused the application and thereafter proceeded to deliver the ruling on the motion before him.

In the ruling in respect of the motion to strike out the case for want of jurisdiction, the learned trial Judge, after referring to the provisions of Section 1(2)(b)(i) of the Federal Military Government (Supremacy and Enforcement of Powers) Decree No. 12 of 1994, held that, from the affidavit evidence placed before him, the claim before him and the exhibits attached to the affidavit in support of the motion, the sum total of the plaintiff’s relief was that a declaration that the revocation of his certificate of registration (Exhibit A) as a traditional chief conveyed to him in the letter (Exhibit B) be declared null and void. Also he found as a fact that the plaintiff was claiming that the appointment of the 4th defendant as the Otota of Igbide be declared null and void and should be set aside along with the certificate of registration given to him (Exhibit C).

The learned trial Judge went further to say that the issue before him therefore was whether the plaintiff or the court could validly question the Government’s action in respect of (Exhibit C). His answer to that question was that having regard to the aforementioned Section 1(2)(b)(i) of the Decree 12, his court lacked jurisdiction in respect of the matter having regard to the document (Exhibit C) which showed that the registration of the 4th defendant as the Otota of Igbide was done pursuant to part III of the Traditional Rulers and Chiefs Edict, No.16 of 1979 of Bendel State. He accordingly held that the plaintiff’s action was a challenge to the act of the Government in registering the 4th defendant as the Otota of Igbide and as such his action was not maintainable as it was contrary to the provisions of the said Decree 12 of 1994. He accordingly granted the prayers in the motion and dismissed the plaintiff’s case with N1,000.00 costs in favour of the 3rd and 4th defendants.

The plaintiff was dissatisfied with the two rulings and has appealed against them to this court. He accordingly filed, in all, 10 grounds of appeal against the two rulings. Briefs were filed in this court. The appellant filed an appellant’s brief. The 3rd and 4th respondents filed a brief. But the 1st and 2nd defendants/respondents filed no brief in this court. The appellant thereafter moved this court to hear the appeal on the briefs before it since the 1st and 2nd respondents failed to file their respective briefs of argument in the case. The prayer was granted by this court on 18th June, 1996.

The appellant formulated one issue for determination in the appeal as relates to the 1st ruling of the court. The one issue so formulated is:-

“Was the learned trial Judge right in refusing to transfer the case from his court when:-

– (a) the unchallenged affidavit evidence is that 3rd and 4th defendants have through the State Chief Judge contacted the trial Judge and discussed with him the pending ruling in the case?

(b) there was no counter affidavit and the erring defendant did not oppose the application?”

As regards the 2nd ruling, two issues were formulated in respect of the appeal as relates to that ruling. They are:-

“1. Was the jurisdiction of the High Court of Delta State ousted by Decree No.12 of 1994 in respect of:-

(i) acts and or matters done under the Traditional Rulers & Chiefs Edict No.16 of 1979?

(ii) all or any of the substantive claims in this action?

2. What is the appropriate order when a court has no jurisdiction to entertain an action?”

The 3rd and 4th respondents seem to have adopted the above issues formulated in the appellant’s brief in their own brief. I therefore need not reproduce the issues as couched in the 3rd and 4th respondents’ brief.

On the issue formulated by the appellant in respect of the 1st motion, which was for the case to be transferred to another court, it was submitted that the court ought to have granted the prayer in view of the fact that the averments in the affidavits in support of the motion were uncontroverted. A refusal to make the order for transfer was erroneous in that it was not made judiciously or judicially. It was further argued that although the learned trial Judge had a discretion in the matter he ought to have exercised it in favour of the applicant before him.

In reply, it was submitted that the stand taken by the learned trial Judge was right in that the accuser had no case against him (the learned trial Judge) and that the allegations made were in fact directed against the learned Chief Judge of the State in respect of which no prima facie case was made out against the said learned Chief Judge. The court’s stand in refusing the application was therefore said to be in accordance with the requirements of the law.

The position of the law is that no party before the court should do anything to undermine the authority of the court. When that is done, it is a challenge to the administration of justice and in appropriate cases, such should be visited with the proper and appropriate sanctions. In other words, the court should not allow itself to be placed in ridiculous situations whereby a litigant could dictate to it, the particular Judge or court where he wants his case to be tried. See the obiter of Uwaifo, J.CA., in Hallmark Bank Limited v. Akalusa Suit No. CA/L/196M/93 delivered on 20/6/94 (unreported) now reported in (1995) 5 NWLR (Pt.395) at page 306. The facts in the instant case show that when this case first came up, it was to be heard by Obi J. of the State High Court. But Obi J., had to transfer it on the request made before him to that effect. It was then alleged that some of the parties were said to be rejoicing on hearing the news that the case was to be heard by Obi J., whom they claimed to be familiar with. The present application was therefore the 2nd of its type, and as learned trial Judge had rightly found, no allegation was made against him personally except that they merely suspected that the ruling about to be delivered might not be in favour of the applicants in the motion. Furthermore, it is not correct, as canvassed in the appellant’s brief, that the facts deposed to were uncontroverted. The affidavit sworn to by the 3rd and 4th appellants after they became aware of the contents of the affidavits in support of the application for a transfer, were sufficient evidence by which the contents of the affidavit in support of the motion were controverted. It is true that the learned Chief Judge of the State did not swear to and file a counter-affidavit to deny the averments, such is excusable as there was no evidence on the record to show that the matter was ever brought to his notice. The learned trial Judge was therefore right and acted within the law when he refused the prayer and dismissed the application. I therefore hold that the appeal as relates to that ruling lacks merit and I accordingly dismiss it.

As regards the 1st issue relating to the 2nd ruling, it was submitted in the appellant’s brief, inter alia, that the learned trial Judge was in error by holding that he lacked jurisdiction in the matter. This was said to be because the 1979 Edict under which the act that constituted the subject matter of the claim before the court was done, was in force before the 1979 Constitution came into force and as such that Edict stood modified under Section 274(4) (c) of the 1979 Constitution to read the “Traditional Rulers and Chiefs Law 1979”. That Law was therefore not affected by the subsequent provisions of the Constitution (Suspension and Modification) Decree No.1 1984. The latter Decree of 1994, now in question, also had no effect on it.

The lower court was therefore said to be in error when it held that the said 1979 Law was still an Edict and that the act done under it could not be queried by any court. It was further submitted that ouster clauses in statutes must be construed strictly and that such ouster clauses should not enjoy any retrospective effect. It was also submitted that it was not the intention of the law makers to make the provisions of Decree No. 12 of 1994 to protect the acts or things done under the Traditional Rulers and Chief Law by a Civilian Governor and completed long before the present Military Government assumed the reign of power in the State. A dictum of Oguntade, J.C.A. in Commissioner for Local Government v. Ezemuokwe (1991) 3 NWLR (Pt.181) 615 at 628 was cited in support. Also cited in support is Garbo v. Federal Civil Service Commission (1988) 1 NWLR (Pt. 71) 449. It was submitted in conclusion that only acts or matters or things done by the present Military Administration under an Edict or a Decree with the aim of achieving the set objectives that are precluded from adjudication and determination. The selection or appointment or removal of Otota of Igbide is said not to be one of the objectives set out to be achieved by Decree 12 of 1994. Such act would not enjoy the protection of Decree No.12 of 1994 because the issues raised in the objection were done before the present regime came into power. The decisions in Osuagwu v. Attorney-General of Anambra State (1993) 4 NWLR (Pt.285) 13 at 47; and Commissioner for Local Government v. Ezemuokwe, supra, were cited in support of the submissions.

On the order for dismissal of the action made by the learned trial Judge, it was submitted that the learned Judge was wrong in making that order since the case was not heard on its merit. The decisions in Okoye v. Nigerian Construction and Furniture Co. Limited (1991) 6 S.C.N.J. 154; (1991) 6 NWLR (Pt.199) 501 and Amaye v. Associated Registered Engineering Contractors Limited (1990) 4 NWLR (Pt. 145) 422 at 440 were cited in support.

In reply it was submitted in the 3rd and 4th respondents’ brief that the central issue to be decided by the learned trial Judge was whether Exhibit C, the certificate issued to the 4th respondent was done under an Edict or Law. It was submitted that on the face of the document itself, it was clearly stated that the certificate was issued under an Edict and not Law and as such it was clear from the contents of the Decree No.12 of 1994 that all existing legal orders in Nigeria except those or what it expressly preserved were cleared away. Since the provisions of Section 1(2)(b) (i) of the Decree No. 12 1994 were clear, only literary interpretation of them need be applied. It was finally submitted that any act or thing done for which proceedings were instituted before 18th November, 1993 would only have been done before such proceedings were instituted. All the claims of the appellant are said to have come to one thing, namely: nullification of the appointment of the appellant and registration of the 4th respondent as Otota of Igbide. The acts being queried in the claim are therefore said to be acts in respect of which no action could be instituted in accordance with the provisions of the aforementioned Decree No.12 of 1994.

It was also submitted on the issue of the order made by the lower court by which the plaintiff’s claim was dismissed, that the order made by the court was quite appropriate because evidence had been led in the case in support of the plaintiff’s claim.

The fact in the instant case seem not to be in dispute. They are, according to the pleadings before the court, the appellant who was originally selected and installed as the Otota of Igbide was said to have been removed as per the letter exhibited along with the motion paper. In his place, the 4th respondent was installed and also issued a certificate of recognition also exhibited along with the motion paper. The acts were done during the period when a Civilian Government was in power in Delta State. The question therefore is whether or not those acts are covered by the provisions of Section 1(2)(b)(i) of the aforementioned Decree 12 of 1994. The relevant provision of the said Decree reads as follows:-

Section 1(2)(b)(i) of Decree 12 states that:-.

“(b) with a view to assuring the effective maintenance of the territorial integrity of Nigeria and the peace, order and good government of the Federal Republic of Nigeria:-

(i) no civil proceedings shall lie or be instituted in any court for or on account of or in respect of any act, matter or thing done or purported to be done under or pursuant to any Decree or Edict and if such proceedings are instituted before, on or after the commencement of this Decree the proceedings shall abate, then discharged and made void.”

It is not in doubt that the above provisions of that Decree are aimed at restricting or ousting the jurisdiction of the ordinary courts in respect of any act, matter or thing done or purported to be done under or pursuant to any Decree or Edict. The position of the law is that the courts jealously guard their jurisdiction and as such, any provision in any statute aimed at restricting or curtailing the powers of the courts is usually interpreted in such a way that such provision would be strictly construed and would not be extended beyond its least onerous meaning unless clear words are used to justify such extent. See the cases of Barclays Bank of Nigeria Limited v. Central Bank of Nigeria (1976) 1 All NLR 409; Agwuna v. Attorney-General of the Federation (1995) 5 NWLR (Pt.396) 418 at 433 and 438; Attorney-General of Lagos State v. Dosunmu (1989) 3 NWLR (Pt.111) 552; Anya v. Iyayi (1993) 7 NWLR (Pt.305) 290; F.C.D.A. v. Sule (1994) 3 NWLR (Pt.332) 257; Imasuen v. Hon. Justice Amissah and Others (1996) 8 NWLR (Pt.467) 452; and Sanni v. Post Primary School Board, Benin City, (Suit No. CA/B/97/93 decided by this court on 12th December, 1996, unreported).

The contention in the instant case is that the acts done in the instant case by a Civilian Government before the promulgation of the afore-mentioned Decree No. 12 1994 were covered by the provisions of that Decree. Such interpretation, in my view, if applied, would amount to not construing the provisions of that Decree in such a way that would not extend them beyond its least onerous meaning when there was no specific provision to the effect that the acts done by Civilian Government before the take over by the Military Government were covered by the provision. I therefore hold that it was wrong to hold the view that the provisions of the said Decree No.12 of 1994 were applicable to the case before the learned trial Judge.

Even if the provisions of the said Decree were in fact applicable to the case before the lower court, the interpretation to be given to them would still be the same as given to other similar provisions ousting or curtailing the jurisdiction of the courts. The position would then be that the court would examine the facts of the case before it to see whether the acts done by the authority come within the provisions of the law. In other words, the court would still have to hear the case on its merit and see whether the act, matter or thing done or purported to be done in pursuant of or under the Decree or Edict, was done in accordance with the provisions of the relevant Decree or Edict. The Decree No. 12 of 1994, in my view does not give a blank cheque or authority protecting any illegal act or any act not done in accordance with the provisions of any Decree or Edict to any authority or government. In other words any act done not in strict compliance with the provisions of any Decree or Edict will not be protected by the said provisions of the Decree No. 12 of 1994. Such acts would therefore be illegal acts which would be declared null and void by the courts. See Parlman v. Government Harrow School (1978) 3 WLR 736 per Denning, M.R.; Denning, Discipline of the Law, 1979 page 74; Okeke v. Attorney-General of Anambra State (1992) 1 NWLR (Pt.215) 60; Attorney-General of the Federation v. Sode (1990) 1 NWLR (Pt.128) 500 at 537; Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688 and Imasuen v. Hon. Justice Amissah, supra.

In conclusion therefore and for the reasons set out above, I hold that the learned trial Judge was in error to have held that he lacked jurisdiction in respect of the matter before him. The appeal in respect of that leg therefore succeeds. Similarly, the order of the lower court dismissing the appeal was also in error even assuming that he had no jurisdiction in the case. This is because an order dismissing a case is only entered when a case is heard on its merit when all the necessary parties before the court and the plaintiff failed to prove his case. See Olayioye v. Oso (1969) 1 All NLR 281; Green v. Green (1987) 3 NWLR (Pt.61) 480; Ogbechie v. Onochie (1988) 1 NWLR (Pt.70) 370 and Egwu v. Modunkwu (decided recently by this court, unreported, Suit No. CA/B/54/92, delivered on 13/3/97) now reported in (1997) 5 NWLR (Pt.501) at page 574. On the other hand, an order striking out a claim is made in cases in which the action has not been properly constituted or the court is not competent to hear the case or that the action has not been heard on the merit or has not been heard at all. See Okafor v. Nnaife (1973) 1 All NLR 238; Ogbechie v. Onochie, supra, and Egwu v. Modunkwu, supra. The order made by the learned trial Judge in the instant case dismissing the claim before him when he had not heard the case on its merit, was not proper.

In conclusion therefore and for the reasons given above, the appeal in respect of the 2nd ruling by which the learned trial Judge dismissed the claim before him with N1,000.00 costs is allowed. I accordingly set aside the orders of dismissal of the case and the costs awarded by the court. In their place, I hereby order that the lower court had jurisdiction in the matter. The order on costs awarded by the lower court is accordingly set aside. So also is the order dismissing the claim. I accordingly order that the case should be restored on to the cause list and be heard on its merit by another Judge in the same jurisdiction. No order on costs is made in this court.

---

Other Citations: (1997)LCN/0342(CA)