Chief Emmanuel Ogbonna V. The Attorney-general Of Imo State & Ors.(1992)

LawGlobal-Hub Lead Judgment Report

NNAEMEKA-AGU, J.S.C. 

This is a further appeal to this Court against the judgment of the Court of Appeal Port Harcourt Division dated the 3rd day of May, 1989. That Court has dismissed the appeal of the plaintiff against the judgment of Nwachukwu, J., sitting at Mbano/Etiti Judicial Division of Imo State High Court.

The plaintiff had instituted an action against the defendants Nos. 1-3 claiming the following reliefs:

“Particulars of Claim

(a) Declaration that by the provisions of the Chieftaincy Constitution of Amainyi Autonomous Community 1978, in the Etiti L.G.A. within the jurisdiction, the selection, appointment and recognition of the Community’s Traditional Ruler should be based on a rotatory system.

(b) Declaration that Chief Emmanuel Ogbonna, the plaintiff on record, having been selected in accordance with the provisions of the said Constitution is entitled to be presented and recognized by the competent authority in accordance with the relevant law.

(c) Declaration that the 3rd defendant not having been selected in accordance with the said Constitution is not entitled to be presented and recognized as the Traditional Ruler of Amainyi Autonomous Community aforesaid by the 1st and 2nd defendants or by any other authority.

(d) Declaration that any selection, presentation and recognition of the 3rd defendant in violation of the provisions of the Chieftaincy Constitution of Amainyi Autonomous Community is ultra vires, illegal and null and void.

(e) Injunction restraining the 1st and 2nd defendants by themselves, their servants and agents from recognizing the 3rd defendant as the Traditional Ruler of Amainyi Autonomous Community pending the determination of the action now in court.

Dated 20th September, 1986.

Signed: P.C. Ikpeama, Barrister

Iketuonye Chambers,

22, Douglas Road,

Owerri.”

Later the members of the council of Ndi Nze (Kingmakers) of Amainyi moved the court and were authorized that their Chairman, Nze Charles C. Onuora, be joined as 4th defendant. He was joined accordingly, Also the 3rd defendant, by leave of court filed a counter-claim for:

“(1) Declaration of this Honourable Court that within the meaning and intendment of the Rules and Regulations governing the selection and appointment of the Chief and Traditional Ruler of Amainyi Autonomous Community, made the 9th day of July, 1978, the Third Defendant has been duly and properly selected and presented for recognition as Inyi II of Amainyi Autonomous Community.

(2) Injunction perpetually restraining the plaintiff from holding himself out as the person selected and presented for recognition as Inyi II of Amainyi Autonomous Community.

The summaries of facts as established by evidence are as follows:

Before 1978 Amainyi-Ukwu and Amainyi-Nta existed in Etiti Division of Imo State as two separate Communities. However, on the establishment of Autonomous Communities in Imo State by law in 1978 the two voluntarily came together as Anwinyi Autonomous Communities. They agreed to have only one Chief at a time in order to reflect their new status and aspirations. They established for themselves a Constitution which was duly signed by their representatives. The part of this Constitution relevant to this appeal runs as follows:

“Amainyi Ukwu/Amainyi Nta autonomous Community in Etiti Local Government Area of Imo State of Nigeria.

Selection and Appointment of Her Chili and Traditional Ruler: Rules and Regulations

WHEREAS the Government of Imo State of Nigeria in its Extraordinary Gazette No. 20 Volume 3 (Imo State Legal Notice No,9) of 14th June, 1978 has recognised Amanyi comprising the following twenty-seven wards namely, Umuarugwu, Amuzu/Eluama, Umuokoroafor Eluama, Umugoji/Umuogide, Okereke-Ha-Ochieze, Umutuada, Umuezigwe, Amaudara. Umuorieukwu, Umuezeajala, Amaogu, Umuokereke, Umuekwerenebi, Umuogele, Agbuola/Eluelu, Umuginikanwa, Umuehetu, Amaegbu/Elugwu, Usuajondu, Umuemeka, Umuezeanyaku, Ofeugwu/Ndunde, Ejaa-na-Ogazikpa, Umunghoghoeke, Umujichi/Umuochemonyere, Umuokemadu and Umuokaji, as a traditional autonomous community in Imo State of Nigeria for the purposes of identifying and selecting traditional rulers and chiefs in Imo State of Nigeria.

WHEREAS it is not necessary here to go into the historical background of chieftaincy institution in this community both before, during and after the British colonial rule in Nigeria.

AND WHEREAS this community has had chiefs of various ranks and titles and at various times and selected by various methods. The selection, appointment and presentation of a traditional ruler/chief, should rotate between Amainyi Ukwu/Amainyi Nta.

AND WHEREAS it has become necessary to have some record for future identification and selection of the traditional ruler and chief of this autonomous community.

We the entire people of Amainyi Autonomous Community assembled this 9th day of July, 1978 at the Community School Hall, Amainyi, hereby adopt and ratify the following rules and regulations to safeguard our traditional and chieftaincy institution in so far as they do not conflict with any Federal, State or Etiti Local Government laws regulating Chieftaincy institution in the country, State or Etiti Local Government Area:

1. The office of the Traditional Ruler and Chief of Amainyi Autonomous Community is not hereditary.
2. Each of the twenty-seven wards that make up the autonomous community is equal in all respects to the others and therefore qualified to nominate a candidate along with the other wards for consideration for appointment as the Traditional Ruler and Chief of the Community if and when a vacancy occurs.”

“5. Method of Selection

(a) The Traditional Ruler and Chief of the Community shall act on the advice and after consultation with his cabinet or “king-makers”.

(b) The cabinet shall comprise twenty-seven members each appointed by each of the twenty-seven wards that make up the Community.

(c) In the event of a vacancy occurring either by death or otherwise, the twenty-seven member cabinet shall officially meet after three months to select a new Traditional Ruler and Chief from among all the candidates nominated by their wards or presenting themselves for selection.

(d) The cabinet shall after wide publicity of the vacancy and receiving applications and or nominations proceed to select and recommend a candidate who is most qualified having regard to qualifications and disqualifications in Article 3 above.

(e) The candidate so selected and recommended as in (d) above shall be presented to the entire assembly of the Community on a date which shall be given wide publicity for ratification or confirmation.

(f) On ratification or confirmation, all the members of the cabinet shall sign a resolution of selection and presentation of the candidate forthwith.

6. In the case of temporary absence or temporarily incapacity of the Traditional Ruler and Chief of the Community, the cabinet will act for him collectively until such absence or incapacity terminates.
7. The Traditional Ruler and Chief of Amainyi Community shall bear the title of “THE INYI 1 (ONE) OF AMAINYI”.
8. The method and date of installation of the Inyi of Amainyi and his regalia shall be decided by the cabinet after consultation with the people. The day of installation of the Traditional Ruler and Chief shall be declared a public holiday throughout the Community.

As it will become obvious in due course, it is the interpretation of this Constitution which was tendered at the trial as Exh. A that is the real issue in this appeal. After trial and listening to the submissions of counsel on both sides, the learned trial Judge held inter-alia as follows:

“I have carefully read through Arts 2 and 5(c) of Exh.A which make provision for the type of people who may vie for the office of Inyi when a vacancy occurs and do not find any ambiguity in the wordings of these two sections. As I have already said Arts. 2 and 5(c) of Exh. A go beyond the indications that may be gathered from the preamble and they do not become void because of that. If anything, the fact that the enacting portions go beyond the preamble prevents my calling into aid the preamble. I find and I also held that the language of the enacting portions of Exh. A to wit: Arts. 1, 2, 3, 4 and 5 are very clear and unambiguous. For instance, Art. 2 means exactly what it says and that is in the matter of action to fill a vacancy when one occurs, each of the twenty-seven wards spread out between Amainyi-Ukwu and Amainyi-Nta can each nominate a candidate. It did not restrict the nomination to the section of Amainyi that did not produce the last Inyi. Again Art 5(c) empowers the cabinet, and that is the council of Ndi Nze to section a candidate from the list submitted by each of the twenty-seven wards and any others not presented by their wards, but who want to run for the office. There is no inhibition whatsoever arising from the enacting portions of Exh. A provided that candidate has satisfied the conditions imposed by Arts 1 and 3.

I do not agree with the plaintiff that he emerged winner from the exercise conducted by the council of Ndi Eze on the 13th of December, 1984. I do not also agree with him that he was presented by the Council of Ndi Eze to the Secretary of Etit; Local Government.”

In the result, he dismissed the plaintiff’s claim and granted the counter-claim.

On appeal to the Court of Appeal, Port Harcourt Division, that court dismissed the appeal. In the lead judgment of Olatawura, JCA (as he then was) with which Onu and Omosun, J.J.C.A. concurred, he agreed that as the enacting part of the Constitution was not ambiguous there was no need or ground to call in aid the preamble for the purpose of interpretation of the document. He, therefore, dismissed the appeal.

The plaintiff has appealed to this Court upon five grounds of appeal. According to the learned Senior Advocate for the appellants Mr. Iketuonye, the issues for determination in the appeal are as follows:

“(i) Was the Court of Appeal right in holding that the provisions of the Chieftaincy Constitution of Amainyi Autonomous Community, were not ambiguous when it did not read the contents of Exh”A” as a whole, but merely read the enacting part of Exh. “A”, that is, Articles 2, 3, 4 and 5

(ii) Whether the Court of Appeal was right in holding that there was no ambiguity in the document Exh. ‘A’ when the trial court found that while the preamble envisaged a rotatory method of selecting a traditional ruler, the enacting part of Exh .A’ threw the contest open to all indigenes from the 27 wards of Amainyi Autonomous Community.

(iii) Whether the Court of Appeal was right in its interpretation of Exh. “A” when it did not read the contents of Exh. “A”as a whole, in order to ascertain the intention of the makers of Exh “A” and when it failed to examine the prevailing social condition under which Exh.”A” was made.

(iv) Was the Court of Appeal right in upholding the selection and presentation of the 3rd respondent, Dennis Ogwuegbu, the son of the late traditional ruler, when it found that what Exh. ‘A’ frowned at was descent from father to son

(v) Was the Court of Appeal right in holding that the appellant was estopped by conduct from instituting action against the respondents by reason of the fact that the appellant took part in the contest for the selection and presentation of the traditional ruler for the Amainyi Autonomous Community

(vi) Was the Court of Appeal right in holding that the Legal Notice No.9 of 1978, dated June, 1978, destroyed for all purposes the existence of two kindreds in Amainyi, namely Amainyi-Ukwu and Amainyi-Nta, so that the system of rotation enshrined in Exh. ‘A’ became inoperative”

Learned Senior Advocate for the 3rd defendant formulated the issues as follows:-

“(i) Whether on a calm and correct interpretation of Exhibit A, the Court of Appeal was right to hold that on reading the operative parts of Exhibit A particularly Articles 2, 3, 4 and 5, the words are clear and unambiguous and a resort to the preamble is unnecessary

(ii) Whether the Court of Appeal was right to hold that Exhibit A frowned on hereditary and not a rotatory succession to the Ezeship of Amainyi Autonomous Community

(iii) Whether the Court of Appeal was right in holding that the 3rd Respondent was on Exhibit A validly nominated, selected and presented as Eze of Amainyi Community

(iv) Whether the Court of Appeal was right to hold that the Appellant by filing his nomination paper, appearance before the Ndi Nze for interview and with other contestants including the 3rd respondent was estopped from contesting Exhibit A, and the role of the 4th respondent of an Eze elect

(v) Whether the Court of Appeal was right to hold that with the promulgation of Legal Notice No. 9/1978 the two entitles: Amainyi Ukwu and Amainyi-Nta no longer exist’”

On the other hand, the learned Senior Advocate for the 4th defendant formulated the issues as follows:-

“(i) Whether the learned Justices of the Court of Appeal actually interpreted the Chieftaincy Constitution of Amainyi Autonomous Community. Exhibit A in such a way as to render inoperative some vital provisions of the said Constitution. (Italics are ours. for emphasis only)

(ii) Whether Exhibit A is at law ambiguous merely because the preamble contains words which are in apparent conflict with the enacting part thereof.

(iii) Granted that the Court of Appeal held that Exhibit A frowned at and prohibited a hereditary system, that is, from father to son, was the 3rd respondent’s selection and presentation as the Traditional Ruler of Amainyi Autonomous Community shown or proved to be based on a hereditary system so as to render the finding of the Court of Appeal perverse or erroneous

(iv) Whether having fully taken part in the selection process under Articles 2 and 5(c) (d) and (e) of Exhibit A the appellant who lost in that exercise can be heard to deny that the exercise was in consonance with the true intendment of Exhibit A and reflective of the real intentions of the people of Amainyi Autonomous Community.

(v) What if any is the relevance of legal Notice No.9 of 1978 to the interpretation of Exhibit A and the application or operation of Exhibit A.

Reduced to their common denominator, the main issue appears to be whether the courts below were right in their interpretation of the Constitution of Amainyi Autonomous Community Exhibit A and its application to the selection of the 3rd defendant as the Chief or Eze of Amainyi. The subsidiary issue is whether the plaintiff, having taking part in the selection of the Chief, could properly turn round to challenge the procedure for the selection.

In his submission, the learned Senior Advocate for the appellant contends that on a proper interpretation of the chieftaincy Constitution, Exh. A., it will be seen that it was intended to be rotatory between Amainyi-Ukwu and Amainyi-Nta. He therefore, submitted that as the last traditional ruler of Amainyi Autonomous Community, His Highness Eze, S. Ogwuebu Ndiegbe was from Amainyi-Ukwu, the next traditional ruler ought to be selected from Amainyi-Nta. The learned trial Judge was therefore in error when he, after finding that Exh. “A” envisaged a rotatory method of selection, held that the enacting sections threw the contest wide open to any indigene of the twenty-seven wards comprising Amainyi Autonomous Community. The basic function of a court in interpretation of a document is to find out the intention of the makers of the document: Osanyande Uhunmuwangho v. F.I. Okojie & Anor. (1989) 5 N.W.L.R. (Pt. 122) 471, p. 490; Ojokolobo & Ors. v. Alamu & Ors. (1987) 5 N.W.L.R. (Pt.61) 377. The learned trial Judge was in error to have failed to hold that the intention of Exh. “A” was that the chieftaincy stool would rotate between the two component parts of Amainyi Autonomous Community. For this exercise, the document ought to have been read and construed as a whole. A proper and purposeful interpretation of Exh. A must bring out the words used in both the preamble and in the enacting portion. If the Court of Appeal approached its construction from this angle, it could not have held that there was no ambiguity in Exh. “A”. Ambiguity means doubtfulness or uncertainty of meaning, he submitted. He then cited: Oluremi Sowande v. Egba Local Government Council (1974) 4 E.C.S.L.R. 592. He submitted that as in this case, where the operative part of a document is capable of more than one meaning, it is liable to be controlled by the recital. In support he referred to Vol.18 Hals, Laws of England (3rd Edn.) p.440, Art. 812: also Aliu Bello & Ors. v. The Attorney General of Oyo State (1986) 5 N.W,L.R. (Pt.45) 828. He submitted that there was a patent ambiguity in Exh. A. In fact section 3(4) of Edict No.22 of 1978 conclusively shows that continuity of the component parts of an autonomous community was intended by the legislator. He submitted that the expression “from among the candidates nominated by their wards” used in Exh, A is not the same thing with “from among the candidates nominated from their wards”.

Furthermore, he contended that as the 3rd defendant is the son of the late traditional ruler of Amainyi Autonomous Community, his selection fell foul of another express intention of the chieftaincy constitution which provides that the succession ought not to be hereditary. He submitted that the Court of Appeal, having found that Exh, A frowns at making the selection hereditary ought to have applied it in such a way as would be in accord with that intention.

Again learned Senior Advocate conceded that the principle is that a person will not be allowed to complain of an irregularity which he has himself accepted and condoned. So, the plaintiff having contested the selection on the basis that the chieftaincy was open to any candidate from the twenty-seven wards, cannot be heard to fall back to insist that it ought rightly to have been on the basis of the two units of Amainyi-Ukwu and Amaniyi-Nta. But, he submitted, the principle is not applicable where the proceeding relates to a fundamental law of the people of Amainyi Autonomous Community any act done in violation of it is null and void and cannot be waived.

Finally he submitted that it was not true that Legal Notice No.9 of 1978 destroyed the separate identities of the two constituent units of Amainyi Autonomous Community, He emphasized that section 2 of the Edict No.22 of 1978 recognizes the fact that an Autonomous Community could be made up of one or more communities.

The defendants filed separate briefs and made their separate submissions. I shall, however, sum up their contentions together, save where any of them differs from the others. On behalf of the 1st, 2nd and 3rd defendants, it was submitted that on the true meaning of to rotate, the constitution, Exh. A, could not provide for rotation between two units; if alternation was contemplated it ought to have said so. All the defendants contended that the enacting part of Exh. “A” was unambiguous. So, there was no need to resort to the preamble as an aid to the interpretation, The clear intention of the operative part of Exh. A is that any qualified candidate from any of the twenty-seven wards of which Amainyi Autonomous Community is made of can be selected when there is a vacancy in the chieftaincy stool. There is no distinction between Amainyi-Ukwu and Amainyi Nta in the enacting part of Exh. “A”, they submitted.

It was pointed out that the plaintiff who was nominated by his own ward and not by Amainyi-Nta as a candidate for the vacant stool which he contested and lost had not only impliedly admitted that nomination by a ward is the true intendment of Exh.”A” but also is estopped from denying it. It was also pointed out that the plaintiff did not file any defence to the counter-claim: so he is deemed to have admitted it.

Furthermore, it was submitted that a party can acquiesce or waive an irregularity. The plaintiff, having acquiesced to the interpretation which he now argues against cannot now go back to argue against it.

Since the publication of Legal Notice No.9 of 1978, there ceased to be a distinction between Amainyi-Ukwu and Amainyi-Nta. it was submitted. They both got merged into Amainyi Autonomous Community. The defendants replied to all the other points raised by the plaintiff in his brief: I shall consider those I regard as substantial in this judgment.

While I commend the learned Senior Advocate for the plaintiff for the great industry he put into his case and the force of argument he summoned, it is my view that, with respect, he is in error – an error which derives from two fundamental misconceptions. First he appears not to have adverted to the true nature of a preamble. Secondly – and this derives from the first he seems to think wrongly in my view, that to read a document as a whole means to give equal weight to all its component parts – recitals, preambles and all.

It is necessary to note that a preamble to an enactment is, as it were, its preface or introduction the purpose of which is to portray the interest of the framers and the-mischief they set out to remedy. It may sometimes serve as a key to open the understanding of the enactment: see The Sussex Peerage Case (1844) 11 CI. & F. 143; Winn v. Mossman (1869) L.R. 4 Ex. 299, See also West Ham v. lies 8 App. Cas. 388. Strictly it is not a part of the enactment: hence most modem statutes do not contain any preamble. So, as a general rule, it may not be resorted to as an aid to interpretation except in circumstances I shall discuss below.

As for the true position of a preamble in an enactment, I would repeat and adopt the view so vividly stated by the House of Lords in Attorney-General v. His Royal Highness Prince Ernest Augustus of Hanover (1937) A.C. 436, per Lord Normand at 467 -468 where he stated:

“When there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the act are described. It is therefore clearly permissible to have recourse to it as an aid to construing the enacting provisions. The preamble is not, however of the same weight as an aid to construction of a section of the Act as are other relevant enacting words to be found elsewhere in the Act of even in related Acts. There may be no exact correspondence between preamble and enactment, and the enactment may go beyond, or it may fall short of the indications that may be gathered from the preamble. Again, the preamble cannot be of much or any assistance in constructing provisions which embody qualifications of exceptions from the operation of the general purpose of the Act.

It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail. The courts are concerned with the practical business of deciding a lis, and when the plaintiff puts forward one construction of an enactment and the defendant another. It is the court’s business in any case of some difficulty, after informing itself of what I have called the legal and factual con including the preamble, to consider in the light of this knowledge whether the enacting words admit of both the rival constructions put forward. If they admit of only one construction, that construction will receive effect even if it is inconsistent with the preamble, but if the acting words are capable of either of the constructions offered by the parties, the construction which fits the preamble may be preferred.”(Italics mine)

This sums up the law. In the con of the true position of a preamble. It is not of the same weight or importance as the enacting or operative parts of the enactment. Indeed it is emphasized that there may be no exact correspondence between the preamble and the enactment and the latter may go beyond or may fall short of the indications in the preamble. As it is so, it is basically wrong to put forward an argument which in effect postulates that to read the enactment as a whole entails raising its preamble to the pedestal of the enacting provisions and regarding any conflicts between them as evidence of ambiguity. To my mind that is not to be so. A preamble needs not to be looked at all if the enacting part is unambiguous. See: Powell v. Kempton Race Course (1899) A.C. 143, p.157. Olowosago v. Adebanjo (1988) 4 N.W.L.R. (Pt. 88) 275, at pp.287-288; Osawe v. Register of Trade Union (1985) 1 N.W.L.R. (Pt.4) 755, p.769, Sowande v. Egba District Council (1974) 4 E.C.S.L.R. 592. It can only be resorted to as an aid to construction when there is an ambiguity or when there are two conflicting views as to the true meaning of the enactment at which case that view which fits with the preamble ought to be preferred. That is not the case here.

The next question to be decided is whether there was any ambiguity in the enacting words in Exh. A. I would like to state right away that it is not correct to say that the learned trial Judge found that there was any. From the portion of his judgment which I have set out above, he appeared to me to have said that part of the preamble envisaged a rotation between Amainyi-Ukwu and Amainyi-Nta but that the enacting portion clearly threw the matter open to the twenty-seven wards in the Autonomous Community. This is not a finding that the enacting words were ambiguous. The other prong of the argument on behalf of the appellant is that reading the document as a whole, that is reading the enacting part together with the preamble, it will be seen that the enacting part is in conflict with the preamble; this, to him, is a form of ambiguity. In my respectful opinion, this is a wrong way to find an ambiguity in an enactment or a document. Although the word ambiguity ordinarily means uncertainty or doubtfulness in meaning, it is wrong, for what I have said about the meaning and significance of a preamble, to find ambiguity in a document or enactment by comparing the preamble with the enacting or operative part thereof. Ambiguity, whether latent or patent, is discernible from the enacting or operative part of the enactment alone without reference to the preamble. In short, if on reading the operative or enacting part of the enactment, as it stands, the meaning is doubtful or uncertain, then there is an ambiguity patent or latent, as the case may be. I may, at the risk of repetition, quote again paragraphs 2 and 5(c) of Exh. “A”. They read as follows:

“2. Each of the twenty-seven wards that made up the autonomous community is equal in all respects to the others and therefore qualified to nominate a candidate along with the other wards for consideration for appointment as the Traditional Ruler and Chief of the Community if and when a vacancy occurs.” X X X X X

“5.(c) In the event of a vacancy occurring either by death or otherwise, the twenty-seven member cabinet shall officially meet after three months to select a new Traditional Ruler and Chief from among all the candidates nominated by their wards or presenting themselves for selection.”

The enacting part of Exh. A is therefore unambiguous as to the equality of each of the twenty-seven wards making up the Autonomous Community for purposes of sponsoring or selection of a candidate for the traditional rulership and chieftaincy. Strikingly, the enacting part makes no mention of the erstwhile constituent units of Amainyi-Ukwu and Amainyi-Nta, less so as a basis for nomination and selection of a Traditional Ruler and Chief. Rather it even recognizes the right of a person who has not been nominated by his ward to present himself for selection. So, it can be said that, as far as the enacting part goes, for all practical purposes at least the old schism between Amainyi-Ukwu and Amainyi-Nta in the matter had been buried for good. There is, therefore, no basis for finding any ambiguity in the enactment. The situation in this case is, therefore, similar to the one that arose in the case of: Eton Colelge v. Minister of Agriculture (1964) Ch. 274 in which it was held that, as the enacting words were unambiguous, they could not be controlled by the preamble. This virtually disposes of this appeal: however I shall give passing consideration to the other points raised in argument.

The review I have taken of the certainty and lack of ambiguity of the enacting words and the consequent irrelevance of the preamble to Exh. “A” for purposes of its construction make it unnecessary for me to go into the meaning of the word “rotate” as used in the preamble, set out above, as between Amainyi Ukwu and Amainyi-Nta. If the need had arisen. I would have agreed with my learned brother Karibi-Whyte, J.S.C., in his view clearly expressed in the case of Augustus Kimdey & Ors. v. Military Governor of Gongola State (1988) 2 N.W.L.R. (Pt.77) 445 at p.459, where he stated that, as between two units a more appropriate word would have been “alternate “, if it were intended to shift from one to the other in turn, as the word “rotate” rather means going round in a circle. However, the need to consider the preamble does not arise at all.

It has been argued on behalf of the plaintiff that the old identities of Amainyi-Ukwu and Amainyi-Nta were preserved by Edict No. 22 of 1978, particularly section 2 in so far as it defines an autonomous community as:

“a ground of people inhabiting an identifiable geographical area or areas. comprising one of more autonomous communities merged together bound by a common tradition and cultural way of life with a common historical heritage, and recognised and approved as an autonomous community by the Government.” (Italics mine)

Furthermore he drew attention to the provision of sub-section (4)of section 3 which provides:

“(4) Where a laid down procedure for the nomination, selection or identifications of a chief does not exist in an autonomous community, the chieftaincy stool among the component units shall rotate, starting from the most senior member – community in traditional ranking:’

He also pointed out that Exh. A was headed:

“Amainyi-Ukwu/Amainyi-Nta Autonomous Community in Etiti Local Government Area of Imo State.”

From these he submitted that the separateness of the two component units of the Autonomous Community has been preserved.

No doubt, the historical setting and antecedent of an enactment may, in case of difficulty, be an aid to its interpretation. Indeed it is part of the so-called mischief rule – the rule in Heydon’s Case (1584) 3 Co. Rep. 7a. The interpreter may call in aid those external historical facts which may be necessary for the comprehension of the of the enactment: Connolly v. McGree (l961) 1 W.L.R. 811. But having said so, I believe the law is settled that, although we can bear in mind such historical antecedents to an enactment and the mischief which it set out to combat. These matters can only be an aid to the construction of the words of the enactment. So, we cannot encroach upon the legislative function by extending the scope or content of the enactment because of its historical antecedent or because we think that a certain meaning was probably intended if the enactment itself is clear and unambiguous and does not bear out such a meaning: for this see Attorney-General for Northern Ireland v. Gallagher (1963) A.C. 349, per Lord Reid at page 366. In the instant case, learned counsel on behalf of the appellant appears to have laid emphasis on the aspect of section 2 of Edict No.22 of 1978 which states that the autonomous community comprised of one or more autonomous community. But he did not go further to read the part of the section which states that both of them have been “merged together”. This, to my mind, appears to have put paid to the erstwhile position of separateness and, on the dear words of exh. A., made such a historical antecedent irrelevant for its interpretation. Similarly section 3(4) of the Edict, which is intended to apply where there is no laid down procedure for the nomination, selection and identification of a traditional ruler and chief of an autonomous community is irrelevant in the instant case in which Exh. A has clearly spelt out the composition of the community for purposes of selection of a candidate, qualifications of candidate, deposition of an incumbent, method of selection and presentation of a candidate as well as the Chief’s functions and role. As for the title, which looks more like a short title of the enactment, it appears to me that its object is for identification and not description (Vasher & Sons, Ltd. v. London Society of Compositors (1913) A.C. 107 at p.128). Such a title does not necessarily control the contents of the enactment: see He Boaler (1915) I K.B. 21. There is therefore nothing in the operative part of Exh. A to preserve the separate identities of Amainyi-Ukwu and Amainyi-Nta. I therefore agree with the Court of Appeal that, for all practical and legal purposes, in relation to the selection, presentation and recognition of the Traditional Ruler and Chief of Amainyi Autonomous Community, since the promulgation of the Legal Notice of Imo State, No.9 of 1978, the old distinction between the two former communities of Amainyi-Ukwu and Amainyi-Nta ceased to exist.

The contention that the 3rd defendant ought not to have been selected and presented because he is the son of the late Eze of the Autonomous Community could be disposed of rather briefly. It is therefore contended that the 3rd defendant could not be validly selected and presented under Exh. “A”, a constitution which, as the Court of Appeal itself found, forbids hereditary succession.

It is necessary to appreciate the true basis of the judgment in favour of the 3rd defendant. As I stated above, he counter-claimed for a declaration that he was duly selected and appointed as Inyi II, the Traditional Ruler and Chief of Amainyi Autonomous Community, and an injunction restraining the plaintiff from holding himself out as such, in his statement of defence and counter-claim, he pleaded facts which go to show that he was qualified for selection, presentation and appointment and was duly sponsored by his ward, took part in the contest along with the plaintiff and others and won. He was subsequently duly presented by the King Makers. The plaintiff did not file any defence to the counter-claim and so did not join issues with the 3rd defendant on all the averments in his pleading. No fact that could have disqualified him were pleaded. The learned trial Judge held that as there was no defence to the counter-claim, it was deemed to have been admitted. So, he entered judgment for the 3rd defendant in terms of his counter-claim. The court of Appeal agreed with the trial court. The 3rd defendant has raised the issue again in this appeal.

I believe it has been settled by several decided cases that a counter-claim is to all intents and purposes a separate action, although the defendant, for convenience and speed, usually joins it with his defence where a court so grants leave. Indeed, not only can a defendant apply for summary judgment on his counter-claim but also a plaintiff may counter-claim on defendant’s counter-claim (see Renton Gibbs & Co. v. Neville (1900) 2 Q.B. 818). So, where a defendant counter-claims against the plaintiff, the latter is duty bound to file a reply in defence to the counter-claim, otherwise the court is entitled, in fact obliged, to assume that the plaintiff has no defence to the counter -claim and may enter judgment for the defendant accordingly. See as an example on this: Nigerian Housing Development Society Ltd. v. Mumuni (1977) 2 S.C. 57. This is because where a defendant pleads certain facts in his pleading in support of his counter-claim, with all the necessary particulars, but the plaintiff fails to reply to them, no issue is raised on such defendant’s pleading. So, the court can proceed to give judgment on it without much ado. The Court of Appeal was therefore right to have so held in this case.

Finally I shall consider whether the plaintiff could now be heard to complain about the interpretation placed on Exh. “A” and its application to the selection of the 3rd defendant after the plaintiff had taken part in the contest in accordance with that interpretation and failed. The facts relating to this aspect of the appeal are straightforward. The plaintiff, apparently in compliance with the provision of Exh. A that each of the twenty-seven wards comprised in the Amainyi Autonomous Community or any private individuals could present a candidate in case of a vacancy occurring in the chieftaincy stool, was sponsored by his Ummuanegwu Ward of the Autonomous Community and not by Amainyi-Nta. He was called for interview and eventually contested for the vacancy with representatives of the other words and other private candidates but failed. The question is whether he could subsequently be heard in this suit to put forward a case to the effect that the system of contest on the basis of wards rather that on that of Amainyi-Ukwu and Amainyi-Nta, the old kindred groupings, is not the intendment of Exh. A.

Dealing with this issue in the Court of Appeal, that Court per Olatawura, J.C.A. (as he then was) in its unanimous judgment held:

“I have no doubt in my mind that the Appellant knew the true position to be that each WARD shall nominate a candidate or that a candidate can be sponsored by somebody else. After he lost the contest the sweet grapes he though he could pluck became sour. His conduct was such that he cannot be allowed to re-open the issue of election wherein he fully participated and lost so as to satisfy his insatiable appetite to rule.”

Learned counsel on behalf of the Plaintiff has attacked this passage in this appeal. While conceding it that a person will not be allowed to complain against an irregularity which he himself has accepted (Noibi v. Fikaloti & Anor. (1987) 3 N.W.L.R. (Pt.52) 619 he submitted that the principle does not apply where there is a fundamental vice: Sonuga & Ors.v. Anadein (1967) N.M.L.R.77 at 79; UB.A. Trustees Ltd. v. Nigergrob Ceramic Ltd. (1987) 3 N.W.L.R. (Pt.62) 600. So the principles does not apply where there has been a fundamental failure to comply with the requirement of a statute, as such is not a mere irregularity. As in this case, Exh. “A” is the fundamental law of the people of Amainyi Autonomous Community, an act done in violation of its provisions cannot be waived. It is null and void, empty and of no effect. Kolawole v Alberto (1989) I N.W.L.R. (Pt.98)382.

It appears to me that there is merit in the submission on behalf of the 1st and 2nd defendants that by the plaintiff’s conduct in signing the sponsorship paper and subsequently contesting for the selection, he showed that there was no ambiguity in the content of Exh. “A” and that the selection was being done in accordance with the provisions of Exh. “A”. In any case, I have already shown that on proper approach any court would have come to the conclusion that the provisions were not ambiguous and that the selection of the 3rd defendant was done in accordance with those provisions. Although there is distinction in principle between a noncompliance with a rule, which can be waived, and non-observance of a statutory provision on a substantive issue which would render the act illegal, null, and void and of no effect, such a distinction cannot avail a party such as the plaintiff in this case where there has been no breach of the provision.

It has been submitted that there having been concurrent findings of fact on the issue by the two lower courts, this Court ought not to interfere on the principle established by many cases, including –

Olujinle v. Adeagbo (1986) 2 N.W.L.R. (Pt.7S) 238, p.255;

Enang v. Adu (1981) 11-12 S.C. 25, p.42;

Akinsanya v. UB.A. Ltd. (1986) 4 N.W.L.R. (Pt.35) 273;

Buraimoh v. Esa & Ors. (1990) 2 N.W.L.R. (Pt.133) 406, pAI9

I must point out that it is common ground that the main issue in this case is one of interpretation of the chieftaincy constitution, Exh. “A”. Interpretation of documents or statutes is a question of law: see -Paul Nwadike & Ors. v. Cletus lhekwe (1987) 4 N.W.L.R. (Pt.67) 7\8,atp.744; Ogbechie & Ors. v.Onochie & Ors. (No.1) (1986) 2 N.W.L.R. (Pt.23) 484, pp. 491-492.

Concurrent conclusions on the interpretation of a document relevant or material to the decision in a case by two lower courts cannot qualify as concurrent findings of fact. Much as this court would like to have the benefit of the opinions of these lower courts in such matters and would agree with them in proper cases, such opinions cannot estop or prevent this court from exercising its own independent Judgment in order to reach a correct decision as to the true meaning of such a document or enactment. It is wrong to describe such conclusions on the import or meaning of such a document or an enactment as concurrent findings of fact. So, the cases cited in argument are not point. Be that as it may, I do not find any substance on this issue.

All the issue raised in favour of plaintiff have failed I should dismiss the appeal. It is hereby dismissed with N1,000.00 (One thousand Naira) costs against the plaintiff/appellant in favour of each set of defendants as represented by counsel.M. L. UWAIS, J.S.C.: I have had the opportunity of reading in draft the judgment read by my learned brother Nnaemeka-Agu, J.S.C. I entirely agree with the reasonings and conclusions therein.

It is settled rule of interpretation of both statutes and deeds that unless there is ambiguity in the operative part of either, recourse cannot be made to their preamble in aid of the interpretation of the operative parts thereof – see Maxwell on Interpretation of Statutes, 12th Edition pp. 6-9; Craies on Statute Law, 17th Edition, pp. 199 – 207 and Olowosago v. Adebanjo, (1988) 4 N.W.L.R. (Part 88) 275 at p.287 H. In the present case the preamble to the Constitution – exhibit A-cannot be relied upon to interpret the operative sections of the constitution, namely Articles 2 and 5(c) thereof, because there is no ambiguity between the provisions of the Articles. Both the High Court and the Court Appeal had rightly so found.

For these and the fuller reasons contained in the judgment of my learned brother Nnaemeka-Agu, J .S.C. I too will dismiss the appeal and affirm the decision of the Court of Appeal. N1,000.00 costs in favour of each set of respondents are hereby awarded against the appellant.A. G. KARIBI-WHYTE, J.S.C.: This appeal is against the judgment of the Court of Appeal, Port Harcourt Division (Olatawura, J.C.A. (as he then was) dismissing an appeal against the judgment of Nwachukwu J of the Mbano/Etiti Judicial Division of the High Court of Imo State. The appeal is challenging the construction by the Court of Appeal, of the provisions of the Constitution of Amainyi Autonomous Community 1978 Exh. A in these proceedings. The appeal concerns the nomination, selection and appointment of the Eze of that Autonomous Community.

My learned brother Nnaemeka-Agu, J.S.C. with whose reasoning and conclusions in this appeal, I entirely agree, has given a summary of the facts of this case. I do not wish to repeat the same story. I will therefore confine this judgment to the factual background which will assist me in my interpretation of the relevant provisions of the Rules and Regulations for the selection, etc. of the Traditional Ruler of Amainyi Autonomous Community. I shall hereafter refer to this document as the Amainyi Chieftaincy Constitution. Autonomous Communities were in 1978 for the purposes of Local Government Administration created in Imo State. – See Legal Notice No.9 of 1978. Before this innovation, the two separate, distinct political entities, but culturally and socially related communities of Amainyi-Ukwu and Amainyi Nta, lived independently. They were composed of two kindreds. Each had its own kindred head.

In 1978, by Legal Notice No.9 of 1978 these two Communities were merged into one. The two kindreds now became one community with 27 wards. The community now become known and was called Amainyi Autonomous Community.

By the provisions of section 3 of the Chieftaincy Edict No.22 of 1978, each Autonomous Community was required to select and present a traditional ruler in accordance with the provisions of a Constitution drawn up and accepted by the Community. The Constitution should provide for the manner of nomination, selection, appointment and presentation of its traditional ruler. The people of Amainyi Autonomous Community accordingly and in compliance gave to themselves on the 9th July, 1978 a Chieftaincy Constitution. This document was tendered and admitted in these proceedings as Exhibit A. Exhibit A was as required by S.12(a) of the Chieftaincy Edict No.22 of 1978, signed by the traditional ruler of Amainyi Autonomous Community of the time – Eze Ogwuegbu Ndiegbe. He was also the first traditional ruler of the merged Autonomous Community. Eze Ogwuegbu Ndiegbe died in 1982. His death necessitated the filling of the position from among the two communities which now constitute the young Amainyi Autonomous Community. It is pertinent to observe that this was the first test for the application of the provisions of Amainyi Chieftaincy Constitution, Exhibit A.

Towards the filling of the vacant position of the traditional ruler of the Amainyi Autonomous Community, the cabinet pursuant to Article 5(d) of the Constitution, in 1984 published a Notice, which was subsequently amended, inviting interested candidates to apply. Four candidates applied. The plaintiff/appellant was nominated by the Umuarugwu Ward in compliance with Articles 2 and 5(c) of the Constitution. Mr. Abraham Ebere was nominated by Umuezeajala Ward. Nze Jerome I. Keke was nominated by Amaogu Ward. Chief Dennis Ogwuegbu, the 3rd Defendant was nominated by Umuginikanwa Ward. Chief Jeremiah Ibeodo nominated himself.

The cabinet in compliance with Article 5(d) of the Constitution conducted the selection proceedings. Chief Dennis Ogwuegbu, the 3rd Defendant/Respondent emerged as the successful candidate and was selected to fill the position. Plaintiff/Appellant rejected the exercise. Following his protest some persons who are not members of the cabinet published a document declaring the Appellant selected. There was confusion, then an impasse. On the 22nd September, 1986, Plaintiff/Appellant issued a writ of summons, challenging the selection of the 3rd Defendant/Respondent as the Inyi II of the Amainyi Autonomous Community claiming the following declarations and injunction.

“(a) Declaration that by the provisions of the Chieftaincy Constitution of Amainyi Autonomous Community 1978, in the Etiti L.G.A. within the jurisdiction the selection, appointment and recognition of the Community’s Traditional Ruler should be based on rotatory system.

(b) Declaration that Chief Emmanuel Ogbonna, the plaintiff on record, having been duly selected in accordance with the provisions of the said Constitution is entitled to be presented and recognised by the competent authority in accordance with the relevant law.

(c) Declaration that the 3rd defendant not having been selected in accordance with the said Constitution is not entitled to be presented and recognised as the Traditional Ruler of Amainyi Autonomous Community aforesaid by the 1st and 2nd defendants or by any other authority.

(d) Declaration that any selection, presentation and recognition of the 3rd defendant in violation of the provisions of the Chieftaincy Constitution of Amainyi Autonomous Community is ultra vires, illegal and null and void.

(e) Injunction restraining the 1st and 2nd defendants by themselves, their servants and agents from recognising the 3rd defendant as the Traditional Ruler of Amainyi Autonomous Community pending the determination of the action now in Court.”

Thc 3rd Defendant/Respondent counterclaimed, claiming as follows –

“(1) Declaration of this Honourable Court that within the meaning and intendment of the Rules and Regulations governing the selection and appointment of the Chief and Traditional Ruler of Amaioyi Autonomous Community, made the 9th of July, 1978, the Third Defendant has been duly and properly selected and presented for recognition as Inyi II of Amainyi Autonomous Community.

(2) Injunction perpetually restraining the Plaintiff from holding himself out as the person selected and presented for recognition as Inyi II of Amainyi Autonomous Community’”

The action was tried on pleadings of the parties, which were filed, served and exchanged. The crux of the contention between the parties rested on the true and proper construction of the provisions of the Constitution enabling the selection of the traditional ruler of the Amainyi Autonomous Community. Plaintiff/Appellant’s contention was that the true intention of the provisions of the Amainyi Chieftaincy Constitution is as expressed in its preamble. It was argued that the selection and appointment was intended to be rotatory and clearly not hereditary. Whilst the Respondents agreed that the intention was for the selection, etc, and that it shall not be hereditary, there was a clear intention against rotation.

The learned trial Judge, Nwachukwu, J agreed with the submission of the Plaintiff that a rotatory method of selection was envisaged in the Chieftaincy Constitution – Exh. A. but held that the operative part of the Constitution threw the contest wide open to an indigene of Amainyi Community, either nominated by any of the 27 Wards, or who offers himself for selection.

Plaintiff was dissatisfied with the judgment. He appealed to the Court of Appeal. The argument at the Court of Appeal was still the same. His contention in the Court below was that the ascertainment of the intention of the Amainyi Community should form the dominant consideration in construing provisions of the Chieftaincy Constitution. It was submitted that the intention of the people as could be gathered from the prevailing social conditions at that time should be the guiding consideration. The maxim ut res magis valeat quam pereat should be invoked in construing the provisions. The Court of Appeal dismissed the appeal on the 3rd May, 1989.

The Court of Appeal, unanimously dismissing the appeal held there was no ambiguity in Exhibit “A,”. It was also held that the appellant having participated in the contest for the selection and presentation of the traditional ruler of the Amainyi Autonomous Community, was estopped from challenging the validity of the exercise. Appellant, again dissatisfied, has now appealed to this Court. Five grounds of appeal were filed.

I shall reproduce the grounds without their particulars-

“1. The learned Justices of the Court of Appeal erred in law by interpreting the Chieftaincy Constitution of Amainyi Autonomous Community, Exhibit’ A’ in such a way as to render inoperative some vital provisions of the said constitution.

2. The Court of Appeal erred in law when it held that there was no ambiguity in the provisions of Exh. ‘A’ where the preamble envisaged a situation where the Amainyi stool would alternate between Amainyi Ukwu and Amainyi Nta while the enacting pan of Exhibit’ A’ threw the contest open to all and sundry.
3. The Court of Appeal erred in law by upholding the purported selection and presentation of the 3rd respondent as the Traditional Ruler of Amainyi Autonomous Community after its finding that Exhibit’ A’ frowned at and prohibited a hereditary system that is from father to son.
4. The Court of Appeal erred in law in holding that the appellant is estopped from contending that the 3rd respondent was not selected and presented as the traditional ruler of Amainyi after he the appellant had participated in the contest and lost.
5. The Court of Appeal erred in law in holding that the Legal Notice No.9 of 1978 which listed the autonomous communities approved by the government of Imo State put an end to the distinction between Amainyi Ukwu and Amainyi Nta as the component units of Amainyi Autonomous Community.”

Learned Counsel to all the parties filed briefs of argument. In this Court all counsel appearing adopted and relied on their briefs of argument.

Counsel formulated the issues for determination variously. The six issues formulated by learned counsel to the Plaintiff and the five by the 3rd Defendant and 4th Defendant respectively, are identical. All contain the issue of the effect of the Legal Notice No.9/1978 on the merger of the Amainyi-Ukwu and Amainyi-Nta. It seems to me however that the two issues formulated by learned Counsel to the 1st and 2nd Defendants are sufficiently terse and comprehensive to cover the six and five issues formulated by learned counsel to the plaintiff, and the 3rd and 4th Defendants respectively. I will therefore adopt them for the purposes of this judgment. They are as follows –

“(1) Whether on a careful and correct interpretation of the Chieftaincy Constitution Exhibit A, the learned Justices of the Court of Appeal and the High Court were right when they held that the appointment of a traditional ruler of Amainyi Autonomous Community is open to any indigene of Amainyi nominated by any of the 27 Wards and others who may wish to nominate themselves

(2) Whether having fully taken part in the selection process under Articles 2 and 5(c)(d) and (e) of the Chieftaincy Constitution Exhibit’ A’ the Appellant who lost in the exercise can now be heard to deny that the exercise was in consonance with the true intendment of the Chieftaincy Constitution and reflective of the real intentions of the people of Amainyi Autonomous Community”

In the interest of completeness, even if unnecessary, it may well be useful to add as the third issue,

“(3) Whether the Court of Appeal was right to hold that with the promulgation of Legal Notice No.9/1978, the two entities; Amainyi-Ukwu and Amainyi-Nta no longer exist”

I consider it appropriate to refer to the 3rd of the Appellants’ issues for determination which reads thus-

“4. Was the Court of Appeal right in upholding the selection and presentation of the 3rd Respondent, Dennis Ogwuegbu, the son of the late traditional ruler, when it found that what Exh.”A” frowned at was descent from father to son.”

I shall consider this last issue first. The issue as formulated is founded on the assumption that the judgment of the Court below was based on the fact that 3rd Respondent was selected merely on the ground that he is the son of the late traditional ruler. I agree entirely with the submission of learned counsel to the 4th Respondent in his brief of argument that learned Counsel to the Appellant had by this issue introduced an issue not raised and pursued in the Courts below. Appellant is by this setting up an entirely new case. This he cannot do – See Adegoke Motors Ltd. v. Adesanya (1989) 3 NWLR (Pt.I09) 250 at p.266.

I would have ignored further consideration of the issue which was introduced without leave of this Court. But it is necessary in the interest of justice to point out also that the claim of the 3rd Respondent to the position left vacant by the death of his father, and the considerations of the Cabinet in selecting and appointing him in succession had nothing to do with the hereditary considerations unequivocally declared by the Constitution as irrelevant.

The uncontradicted evidence before the learned trial Judge and accepted by him was to the effect that the 3rd Respondent was nominated by his Ward, the Umuginikanwa Ward. His candidature was considered along with others in accordance with the procedure laid down under the Constitution. He was selected by the Cabinet empowered by the Constitution to chose the successor after satisfying the preconditions and successfully undergoing an interview conducted by the cabinet.

It is important to point out that hereditary is neither a qualification, nor a disqualifying condition. The 3rd Respondent should therefore not be under any disadvantage merely because his father was once the traditional ruler. Learned Counsel to the Appellant did not, as he obviously could not, refer to any provision of the applicable Constitution in support of such a disability. The conditions prescribed are based on the personal merits of candidates. Since the cabinet who are by the Constitution, the kingmakers,are satisfied that 3rd Respondent was qualified under Article 3(a) to (k), his selection in accordance with Article 5(c) remains impeachable aliunde.

I now turn to the first issue which is the gravamen of this appeal. It covers issues (i)(ii)(iii) as formulated by learned Counsel to the Appellant, 3rd Respondent and the 4th Respondent. Learned Counsel to the Appellant has criticized the construction by the Court below of the provisions of the Chieftaincy Constitution – Exh. A. He has referred us to the basic function of the Court in interpreting a document which is find out the intention of its makers as can be gathered from the document read as a whole, Learned Counsel referred to Uhunnwangbo v. Okojie & anor. (1989) 5 NWLR (Pt.122) 470 at p. 490; Ojokolobo & Or. v. Alamu v. Ors. (1987) 3 NWLR (Pt.61) 377 and several cases on the principle.

It was submitted that the Court below did not read and consider the document Exh.: A, as a whole, but construed the provisions of the enacting part in isolation from the preamble. Learned Counsel referred to the preamble, and to the enacting part, and said that there was an ambiguity. He argued that where there is ambiguity, where the operative part is capable of bearing more than one meaning it is liable to be controlled by the recital. Learned Counsel cited and relied on Sowande v. Egba Local Government Council (1974) 4 ECSLR 592 and Halsbury’s Laws of England. 3rd Ed., Vo1.l8. -,p.440, Article 812.

Learned Counsel agreed that the long title of an enactment is to be resorted to only in cases of ambiguity. It was submitted that the learned trial judge found as a fact that there was a patent ambiguity in the construction of Amainyi Autonomous Community Exh. A.

Continuing his contention, learned Counsel submitted that “Exh.A, did not merely envisage a situation in which the selection and presentation of a traditional Ruler of Amainyi Autonomous Community should be based on rotation, between Amainyi-Ukwu and Amainyi-Nta, it concretised it.” Learned Counsel then referred to Exh. A, and to the Heading. He referred to the definition of Autonomous Community in Section 2 pf Edict No.22 of 1978.

Learned Counsel referred to the merger of Amainyi-Ukwu and Amainyi Nta, as an Autonomous Community as one of union, not unity. The holding by the Court below that Legal Notice No.9 destroyed the two kindred making up the Amainyi Autonomous Community was erroneous and untenable. It was argued that the continuing of the component units was foreshadowed by section 3(4) of Edict No.22 of 1978. Learned Counsel submitted that it was not necessary to provide for the rotatory system in Exh. A since this was clearly understood by the composition of the Autonomous Community.

The principle of rotation was clearly expressed in paragraph 3 of Exh. A. It was submitted that the Court below was wrong to have relied on Article 5(c) of Exh. A in rejecting the clear words in paragraph 3 of the same Exh, A. Learned Counsel referred to the construction of the expression in Article 5(c), ”from among all the candidates nominated by their Wards or presenting themselves for election”, which the Court below construed as throwing the election open to all the 27 Wards and submitted that they could not have such meaning. He argued that it could not have the same meaning as the expression “from among the candidates nominated from their Wards.” It was argued that the nomination is “by their Wards” and not ”from their Wards.”

It was argued that having ignored the principle of rotation expressed in the preamble, it also ignored that part of the Community the 27 Wards will go to carry out all those things they are enjoined to do in the enacting part of Exh. A.

Finally, learned counsel urged the application of the maxim “ur res magis valear quam perear”. Rotation is the only fair and just policy to adopt. Such a policy will bring peace, stability and progress.

I shall now consider submission of learned counsel to the Appellant. In so doing I shall rely on the answers to the submissions in the briefs of arguments of learned counsel to the Respondents.

It is important in my consideration of these submissions to refer to and rely on the relevant provisions of Exhibit A, and of Edict No.22 of 1978. These are paragraphs 3. 5. Articles 1.2.3. 5(b) (c) (d) (e) (f) of Exh. A. section 3(4) Law No.22 of 1978

“AND WHEREAS this Community has had chiefs of various ranks and titles and at various times and selected by various methods. The selection, appointment and presentation of a traditional ruler/Chief; should rotate between Amainyi Ukwu/Amainyi Nta. AND WHEREAS it has become necessary to have some record for future identification and selection of the traditional ruler and chief of this autonomous community.

We the entire people of Amainyi Autonomous Community assembled this 9th day of July, 1978 at the Community School Hall, Amainyi, hereby adopt and ratify the following rules and regulations to safeguard our traditional chieftaincy institution in so far as they do not conflict with any Federal State or Etiti Local Government laws regulating Chieftaincy Institution in the country, State or Etiti Local Government Area:-

1. The office of the Traditional Ruler and Chief of Amainyi Autonomous Community is not hereditary.
2. Each of the twenty-seven wards that make up the autonomous community is equal in all respects to the others and therefore qualified to nominate a candidate along with the other wards for consideration for appointment as the Traditional Ruler and Chief of the Community if and when a vacancy occurs.
3. In the event of a vacancy, any candidate nominated by his ward or presenting himself for selection

(a) must be a citizen of Amainyi of not less than forty years of age at the time of his nomination

or presentation for selection as the Traditional Ruler and Chief of the Community.

(b) He must be resident within the geographical area of the autonomous Community from the time of his selection or appointment.

(c) He must not be a Public Servant of any description or an employee of any Statutory or Public Corporation or agency. If he is one, he must resign from such appointment before seeking selection for appointment as the Traditional Ruler and Chief of the Community.

(d) He must be a man of high repute and proven integrity.

(e) He must be a philanthropist and one who is acknowledged to have the love and interest of the community at heart and must have made his contributions towards the development and upliftment of the Community.

(f) He must be a person who has independent means of livelihood and should not be a bankrupt whether discharged or undercharged.

5. Method of Selection:

(b) The cabinet shall comprise twenty-seven members each appointed by each of the twenty-seven wards that make up the Community.

(c) In the event of a vacancy occurring either by death or otherwise, the twenty-seven member cabinet shall officially meet after three months to select anew Traditional Ruler and Chief from among all the candidates nominated by their wards or presenting themselves for selection.

(d) The cabinet shall after wide publicity of the vacancy and receiving applications and or nominations proceed to select and recommend a candidate who is most qualified having regard to the qualifications and disqualifications in Article 3 above.

(e) The candidate so selected and recommended as in (d) above shall be presented to the entire assembly of the community on a date which shall be given wide publicity for ratification or confirmation.

(f) On ratification or confirmation, all the members of the cabinet shall sign a resolution of selection and presentation of the candidate forthwith.”

“Section 3(4) where a laid down procedure for the nomination, selection or identification of a Chief does not exist in an autonomous Community, the Chieftaincy stool among the component units shall rotate, starting from the most senior member-community in traditional ranking.”

The opening sentences of section 3(4) of Law No.22 of 1978 are of critical importance in considering the effect of Exhibit A. The words are unambiguous that section 3(4) applies to Autonomous Community which has not provided for itself a procedure for the nomination, selection or identification of a Chief. Hence where a provision exists such provision and not section 3(4) will govern. I have referred to this section because section 3(4) has provided that “the chieftaincy stools among the component units shall rotate, starting from the most senior member-community in traditional ranking.”

It therefore follows that those communities which have not made provision for the nomination, selection, etc of a traditional ruler, will be governed by the provisions of section 3(4), and consequently the chieftaincy stool will rotate, “starting from the most senior member-community in traditional ranking,” This brings us to the situation of the Amainyi Autonomous Community. Amainyi Autonomous Community has in “Exhibit, A” made provision for nomination, selection, etc, of the Traditional Ruler of the Community. It is free in making the provision to adopt the principle of rotation as stated in section 3(4), or in a modified form. It can completely reject the principle and introduce any system peculiar. The Law allows it to be the Master of its own House, and to determine the fate of the aspirants to the position of Traditional Ruler of its Community. It made its option.

It seems to me that was what Amainyi-Ukwu and Amainyi-Nta were doing when on July 9, 1978 pursuant to the provisions of section 3(4) of Law No.22 of 1978, they drew up and gave to themselves – Exh. A, the Rules and Regulations for Selection and Appointment of her Chief and Traqitional Ruler. The bone of contention here is the correct and proper interpretation of this document.

I have already referred to this contention and the construction given to the document by learned Counsel to the Appellant and the Court below. I shall now attempt an examination of these contentions in my attempt to construe the relevant provisions. I will not regard Exh. A as a subsidiary legislation. It was not made under an enabling law. But it is a document the content of which is approved by a law. Whichever way one looks at the document, it contains rights and duties recognised and enforceable at law. The first question is to determine the issue of the interpretation of Exhibit A.

It has long been established, and all courts, at least the common law Courts, have always observed the practice that the principles of interpretation of statutes are the same as in the interpretation of documents. – See Curtis v. Stovin (1889) 22 QBD 513. I think this has to be so since in either case the construction is with respect to the recognition of legal rights and the enforcement of legal duties. True, like statutes which are interpreted in the circumstances in which they were enacted, documents are to be construed in the light of the circumstances in which they are drawn up. -Ashibuogwu v. Bendel A.-G., (1988) 1 SCNJ at p. 133; (1988) 1 NWLR (Pt.69) 138. The proposition that the court draws no distinction between statutes and other written documents has not been fully accepted. At least in Camden Marquis v. I.R.C. (1914) 1 K.B. 641 at p.648 Cozens-Hardy, doubted whether this was true to the full extent. I think there were exceptions.

Learned Counsel to the Appellant contended that the document, Exh. A should be read as a whole, and that if so read it would be seen that there was an ambiguity in the provisions. The contention was that paragraph 3 of the preamble having envisaged the application of the rotatory principle, the provisions of the Articles of the enacting part which were silent should be so construed as to incorporate the principle.

All learned counsel to the Respondents submitted that there was no ambiguity in the provisions relied upon. The preamble did not provide for rotatory system of chieftaincy in Amainyi Autonomous Community. It was submitted that the enacting articles 1,2,3,4 & 5, which used plain and unambiguous words did not provide for rotation. If Exhibit A had rotation in mind it would have easily said so. Counsel referred to the procedure far nomination and selection of the traditional ruler and submitted it could not have had rotation in mind. Learned counsel cited several decided cases in support of their contention.

I shall begin by referring to the contention that there was ambiguity in Exh. A because the rotatory principle referred to in the preamble, was not repeated in any of the Articles of the enacting part. I think learned Counsel has misunderstood the meaning of ambiguity which he kindly pointed out in his brief of argument. Accepting his definition of ambiguity as meaning doubtfulness or uncertainty of meaning, it seems to me difficult to agree with his construction of the document.

It is well settled that the preamble to a statute or written document is merely an introductory part of it. It is therefore not a part of the statute or the written document. The purpose of the preamble in a statute or written document is to clarify any ambiguity in the wards used in the enacting part. It does not control the plain wards of the statute or document. As was stated by the Federal Supreme Court in Habib v. LEBD (1958) 3 FSC 109; (1958) SCNLR 434

“It is a cardinal rule of interpretation of statutes that the heading cannot control the plain wards of the statutes; headings are only to be regarded where there is an ambiguity in the wards of the Ordinance.”

Indeed, preambles and headings can only be relied upon to clarify ambiguity. They cannot be used so as to give a different meaning to the clear warding of a provision – See Olu of Warri v. Esi (1958) 3 FSC 94; (1958) SCNLR 384. Headings and preambles, which were originally disallowed, in interpreting statutes determination of the scope and intendment of the provisions of statutes, -See Haines v. Herbert (1963) 1 WLR. 1401 at p.1404. This however, can only be done when the enacting or operative part of the statute is ambiguous. – See Osawaru v. Ezeiruka SC 362/76 (unreported); (1978) 6-7 S.C. 135; (1978) 1 L.R.N. 307. The heading cannot be used to modify the meaning of words which are plain, clear and unambiguous. – See U.T.C. Ltd. v. Pamotei & Ors. (1989) 3 SCNJ, 79 (1989) 2 NWLR (Pt 103) 244; Adebanjo & ors. v. Olowosago & Ors. (1988) 4 NWLR (Pt.88) 275; (1989) 9 SCNJ.78

The question now to be answered is whether there was an ambiguity, and where were the ambiguous wards used Learned Counsel had not contended that the provision of paragraph 3 of the preamble is ambiguous. Are the wards of Articles 1,2,3,4 and 5 which merely because they do not provide expressly or by implication for the principle of rotation ambiguous Learned Counsel does not contend that they are. His contention is that because they do not provide far rotation, hence when read together with paragraph 3 of the preamble, the two must of necessity be ambiguities. This is because the Articles do not contain what the preamble foreshadowed.

The law is well settled that where the wording of a statute is found on examination to be clear and unambiguous. it is neither necessary nor permissible to look further. – See Nabham v. Nabham (1967) 1 All NLR 47; Toriola v. Williams (1982) 7 S.C. 27; Ifezue v. Mbadugha (1984) 1 SCNLR 427; Queen v. Onuegbe (1957) 2 FSC 10; (1957) SCNLR 130; Lawal v. G.B. Ollivant (1972) 3 S.C. 124. I think it is ordinary common sense that when the language used is not only plain but also admits of only one meaning, the task of interpretation can hardly be said to arise. It is difficult to disagree with Vattel (Law of Nations, Bk 2, s.263) that it is not allowable to interpret what has no need of interpretation. Rules of interpretation are mere presumptions in case of ambiguity. They are therefore not relevant in the absence of any ambiguity.

When learned Counsel to the Appellant contended that the Court below did not read the document as a whole, he seems to me to be saying that the suggestion of rotation in the preamble should be read into the operative part of the document. This will mean reading into the operative part what we consider the maker would have done had he thought about it. I do not think this Court can do that. We ought not insert what the maker had failed to provide. I do not think that has ever been the law. The preamble is not a part of the statute or document. The rule requiring statute or document to be read as a whole concerns the, operative part only.The ambiguity referred to can only be with respect to the operative part which contains enforceable rights and duties. Learned Counsel has referred to the historical background to Exh. A. namely communities of Amainyi-Ukwu and Amainyi-Nta into one homogeneous autonomous Community with 27 Wards. He submitted that there was no intention for each of the merging groups to lose its pristine identity. He contended that the arrangement was one of a union without unity that may well be the intention of the parties. But in construing the provisions of a document, the meanings of the words used remain paramount. The object of interpretation is to discover the intention of the maker. This is deducible from the words used. -See Ifezue v. Mbadugha (1984) 1 SCNLR 427. The words used are the keys to unlock the intentions of the maker. It is not what the interpreter may guess to be the intention of the parties. The document should be construed in accordance with the words used without the addition of words not used by the parties – See Solicitor-General v. Adebanjo (1971) 1 All NLR 178. This will undoubtedly express the intention.

The words used in Articles 1, 2, 3, 4 and 5 of Exhibit A are clear and unambiguous. It seems to me obvious that learned Counsel to the Appellant could not resist the temptation of reading into them what he expected the provisions of paragraph 3 of the preamble would have had included -See Ogunmade v. Fadayiro (1972) 8 S.C 1. These are matters extraneous to these provisions. The construction given to the provisions by the Courts below appear to me inescapable. It is quite possible that the merger communities would wish to rotate the position of the Traditional Ruler between them. It is also possible that they have agreed on the issue. But to achieve this, they must use the words appropriate to bring the agreement into effect. The Court cannot infer an intention which does not appear in the words of the enactment -See Udoye v. State (1967) NMLR 197. The drafting of documents to bring intentions of parties into full and proper effect has never been an easy task. It requires considerable skill in the precision and choice of the words to be used and their arrangement. The difficulty has been aptly expressed by one of the greatest of English Common Law Judges when he said;

“It is not enough to attain to a degree of precision which a person reading in good faith can understand; it is necessary to obtain a degree of precision which a person reading in bad faith cannot misunderstand, “per Stephens J, in Re Castioni (1891) 1 QB. 149.”

I do not think any person reading the provisions of Articles 1, 2, 3. 4 and 5 of Exh. A even in bad faith will misunderstand the procedure and prerequisites spelt out therein. Not being ambiguous, resort to the preamble for assistance did not arise. The document, Exh. A, is the best evidence of the intention of its makers. The clarity of the words used clearly demonstrates that one cannot go elsewhere to discover the intention. The maxim ut res magis valeat quam pereat suggested has no place where the words construed do not lead to any absurdity as in the instant case.

Having held that there was no ambiguity in Exh. A, the next question is whether the courts below correctly held that the appointment of the Traditional Ruler of Amainyi Autonomous Community was open to any indigene of Amainyi nominated by any of the 27 Wards and others who may wish to nominate themselves. In other words, Exh. A did not provided for the application of the principle of rotation in the appointment of the Traditional Ruler of Amainyi Autonomous Community.

I have already referred to section 3(4) of Law No.22 of 1978 which made provision for rotation in the appointment of their Traditional Ruler in those Autonomous Communities that have adopted a procedure for nominating selecting and appointing their Traditional Ruler.

There is no doubt that if paragraph 3 of the preamble of Exh. A, appeared in any of the Articles in the operative part, it would have been construed as providing for rotation. Again if the words of Articles 2, 3, 4 and 5 were ambiguous as to the nomination, selection of the Traditional Ruler among the 27 Wards, the preamble would have been called in aid.

It seems to me every step in the relevant operative part of Exh. A, was designed to negate the principle of rotation.

For instance the peculiar position of the heterogeneous composition of Amainyi Autonomous Community, consisting of Amainyi-Ukwu and Amainyi-Nta was not recognized. Instead, when a Vacancy occurs in the position of Traditional Ruler Article 2 made each of the 27 Wards making up the Autonomous Community, equal and therefore qualified to nominate a candidate along with the other Wards for consideration for appointment as the Traditional Ruler and Chief of the Community. Thus the agreement made between the merging communities, or merely implicit from the fact of the merger, was not expressed. The unit is the Ward.

The opening sentence of Article 3 of Exh. A, went further in the prescription of conditions the candidates will satisfy to provide as follows –

“In the event of a vacancy, any candidate nominated by his Ward or presenting himself for selection must fulfill, the following ….

Thus apart from the equality of each of the 27 Wards in the nomination ofcandidates for the position, Article 3(a) provides that a citizen of Amainyi ofnotless than forty years, and satisfying the other conditions is entitled to present himself for election and appointment. Hence the Ward may nominate a candidate. A citizen may also present himself for selection. As I have already pointed out the interest of the merging Communities of Amainyi-Ukwu and Amainyi-Nta was not taken into account, not recognised and was not provided for. The same policy was adopted as can be seen from the words of Article 5 which deals with the method of selection.

Article 5(b) provides for a cabinet of 27 persons corresponding with each nominee of the 27 Wards. The cabinet is required by Article 5(c) to meet after three months to select a new Traditional Ruler from “among all the candidates nominated by their Wards or presenting themselves for election.” This provision clearly shows that the selection of the successful Traditional Ruler is not intended to be restricted to the part of the merging community which has not provided one, to the exclusion of the community which provided the outgoing Traditional Ruler. It was intended, as the Courts below have expressed it, to throw the gates wide open. The contention of learned counsel to the Appellant that the principle of rotation is expressed in the preamble could in the light of these clear, unequivocal and unambiguous words surpass one’s imagination.

The rules of construction require giving words their ordinary natural grammatical meaning and to adhere to same where such meaning is sensible – See Adejumo v. Governor of Lagos State (1972) 3 S.C. 45; Aya v. Henshaw (1972) 5 S.C. 87; Ogbunyiya v. Okuda (1979) 6-9 S.C. 32.

It has never been the rule to so construe the provisions of a statute or document to result in absurdity or to make nonsense of clear, plain unambiguous expressions – See Minister of Local Government (EIN) v. Akpagu (1964) 1 All NLR 208.

The draftsman of the document, Exh. A, appears to have had clearly in his mind the fact that the document was intended for the Amainyi Autonomous Community. He also would seem to have assumed that by the merger of Amainyi – Ukwu and Amainyi-Nta into one Amainyi Autonomous Community, the separate existence hitherto recognised in all political institutions no longer existed. The unit for administrative purposes is now the individual and the Ward. All posts shall now be competed for by nomination from the Ward.

Learned Counsel to the Appellant has criticized the Court for holding that the selection of the Traditional Ruler from among all the candidates nominated by their Wards or presenting themselves for election meant that the Chieftaincy stool of Amainyi is intended to be a free for all fight whenever a vacancy occurs. Learned Counsel said that there was a distinction between the expression “from among the candidates nominated by their Wards” and the expression “from among the candidates nominated from their Wards.”

I concede the difference. In the first expression the Ward is the nominating body. In the second expression, the candidate need only be a member of the Ward. Since Article 3 enables individuals who would naturally be members of the 27 Wards, constituting the Community, to present themselves for selection, the distinction in this situation appears to me one without any difference.

The Courts below have not fallen into any error in the view that the race for the Traditional Ruler of the Amainyi Community, declared not to be hereditary is a free for all fight among all the citizens of the community in the event of a vacancy. The enabling articles have not made any provision for the filling of the vacancy in rotation between the two merging groups or the 27 Wards of the Community. The qualification required in article 3 seeks the best accomplished, respected candidate with unsullied reputation and integrity whose contribution to the development of the Community merits the recognition. This cannot be based on the principle of rotation, or as has been accepted alternation between the two merging groups making up the community.

I am in complete agreement with the court below that the effect of the merger of the two communities was the abolition of the erstwhile political division. It achieved both union and unity. The question of considering rotation or alternation in the circumstance does not arise.

It was argued that the identity of the merging groups of Amainyi-Ukwu and Amainyi-Nta was preserved by Law No. 22 of 1978. Sections 2, and 3 of that Law were relied upon in support of the submission. I do not share this view. I have carefully read the sections relied upon. I have also considered the interpretation of these provisions in the light of Exh. A.

Section 2 of the law No.22 of 1978 defines an “autonomous community” as “a group of people inhabiting an identifiable geographical area or areas, comprising one or more autonomous communities merged together bound by a common tradition and cultural way of life with a common historical heritage, and recognized and approved as an autonomous community by the Government.”

Section 3(4) of the same law is as follows-

“(4) Where a laid down procedure for the nomination, selection or identification of a chief does not exist in an autonomous community, the chieftaincy stool among the component units shall rotate, starting from the most senior member-community in traditional ranking”

I do not think the definition in section 2 can be interpreted to suggest that members of an autonomous community after merger retain their erstwhile separate identity. The merger was necessitated “by a common tradition and cultural way of life with a common historical heritage hence the separate communities together are recognized and approved after merger as one autonomous community by the Government. The effect of the words underlined in section 2, which are the operative words, is that the Government only recogniscs the resulting merged communities as the new Autonomous Community. Their antecedents now becomes irrelevant in construing the provisions relating to the new autonomous community except preserved by the law. Where it was intended to recognise and preserve their separateness, the law has so provided in section 3 (4) of the same law. But even in this case, the law has limited its application to the Autonomous Communities where a laid down procedure for the nomination, selection or identification does not exist. Since Exh. A is a document containing the Rules and Regulations for the selection and appointment of the Chief or Traditional Ruler of Amainyi Autonomous Community that Community is outside the purview of section 3 (4). Amainyi Autonomous Community is now subject to its own rules and regulations made by and given to its own Community by the Community.

I now turn to the second issue for determination that is whether Appellant could now be heard to impugn the interpretation of Exh. A having relied on it himself.

Learned Counsel to the Appellant concedes the general principle that a person will generally not be allowed to complain of an irregularity he has himself accepted and condoned. The decisions of this court in Noibi v. Fikolati & Anor. (1987) 1 NWLR (Pt.52) 619 and Obodo v. Olomu & Anor. (1987) 3 NWLR (Pt. 59) 111 were cited and relied upon. Relying on U.B.A. Trustees Ltd. & anor. v. Nigergrob Ceramic Ltd. (1987) 3 NWLR (Pt.62) 600, it was submitted that the cases where the proceeding was tainted with a fundamental vice and therefore a nullity are exceptions to the general rule. In the instant case it was contended that there has been a fundamental failure in the observance of and violation of the provisions of Exhibit A. The resulting exercise was therefore null and void Kolawole v. Alberto (1989) 1 NWLR (Pt.98) 382. It was submitted that any application of the provisions of Exh.A which does not observe the rotatory system is an exercise in futility. Participation in the exercise cannot found the plea of estoppel.

The facts of this case are not in dispute. Appellant is not disputing the fact that he participated in the exercise for the nomination, selection and appointment of the traditional Ruler of Amainyi Autonomous Community. He was nominated by his Ward, the Umuanegwu which was from the former Amainyi-Nta. He attended the interview organized by the cabinet. Appellant was according to Exh. A qualified to be considered for appointment to the vacant position. He applied and was duly considered along with the other candidates. He was however one of the unsuccessful candidates. His complaint which seems to be an after thought is that the nomination for the vacant position of chief and Traditional Ruler of the Autonomous Community was thrown open to all members of the entire community. This included the Amainyi-Ukwu people who provided the outgoing Traditional Ruler.

In the Court below, his contention was rejected. In the leading judgment of that court. Olatawura. J.C.A. (as he then was)said:

“I have no doubt in my mind that the Appellant knew the true position to be that each WARD shall nominate a candidate or that a candidate can be sponsored by someone else. After he lost the contest the sweet grapes he thought he could pluck became sour. His conduct is such that he cannot be allowed to reopen the issue of election wherein he fully participated and lost so as to satisfy his insatiable appetite to rule:

This is the passage attacked by learned Counsel to the appellant in the argument I have set out above.

I think learned counsel to the 1st and 2nd Defendants was right in his submission that Appellant having been nominated and contested selection for the vacant position in accordance with the terms of Exh. A. has accepted the validity of Exh. A. I agree that there is a distinction in principle between a non-compliance with a rule which can be waived, and non-observance of a statutory provision on a substantive issue rendering the act illegal null and void. I think the principle is that a person cannot subsequently impugn the validity of an act he has contributed to create where the resulting act is valid. He surely cannot found a grievance on his own constitutive act. – See Saude v. Abdullahi (1989) 4 NWLR (Pt. 116) 387 Adegoke Motor. Ltd. v. Adesonya & Anor. (1989) 3 NWLR (Pt. 109) 250 at p. 266.

In the instant case there has been no breach of the enabling provision. Appellant can therefore not impugn the act which remains valid. The cases Appellant relied upon are therefore not applicable. I wish to refer to the submission of learned Counsel that there having been concurrent findings of the two lower Courts, this Court ought not to interfere with the decision. I do not think the submission is right. The main issue on which Appellant’s contentions are based is a question of the construction of Exh. A. This being the interpretation of a document is undoubtedly a question of law. – See Paul Nwodike & ors. v. Ibekwe (1987) 4 NWLR (Pt.67) 718 at p. 744: Ogbechie & ors. v. Onochie & ors.(No.1) (1986) 2 NWLR (Pt.23) 484, 491 -492.

It is surely not a question of fact. It is wrong therefore to describe the decisions which are on the construction of documents as those of fact. The cases cited and relied upon in support are therefore inappropriate.

Finally, I shall deal with the counter claim of the 3rd Respondent which was decided in his favour on the ground that Plaintiff did not defend the claim. A counterclaim is to all intents and purposes a separate and independent action in its own right. It has also been so regarded in several decided cases. See Oyegbola v. Esso W.A. (1966) 1 All NLR 170. A defendant may apply for summary judgment based on a counter-claim. A plaintiff is equally entitled to counter-claim on a defendant’s counter-claim. All the rules of pleadings apply to counter-claim. Thus, where a defendant files a counter-claim, Plaintiff is bound to file his defence to such claim. In the absence of a defence, no issue has been raised and the Court is obliged and bound to enter judgment for the claim in the counter-claim on the grounds that plaintiff has no defence to the counter-claim. – See Nigerian Housing Development Society Ltd. v. Mumuni (1977) 2 S.C. 57.

The Court of Appeal was therefore right to have so held in the instant case.

Having come to the above conclusion, I hereby dismiss the appeal. Appellant shall pay N1,000 (one thousand naira) as costs in favour of each set of Respondents represented by Counsel.S. M. A. BELGORE, J.S.C.: I have had a preview of the judgment of Nnaemeka-Agu, J.S.C with which I am in full agreement. I adopt his reasoning and conclusions as mine in dismissing this appeal with N1,000.00 as costs to each respondent.

E. O. I. AKPATA, J.S.C.: I have had a preview of the judgment of my learned brother; Nnaemeka-Agu, J.S.C., and I agree with him that the appeal be dismissed. His main reason for dismissing the appeal coincides with mine.

This facts relating to this appeal have been clearly stated by my learned brother. It is however necessary for purposes of my judgment to state them briefly in outline. Before 1978 Amaiyi area in Etiti Local Government Area of Imo State was made up of two communities, namely: (a) Amaiyi-Ukwu and (b) Amaiyi-Nta, each with its own traditional head or ruler. In 1978 by operation of law both communities became one autonomous community known as Amaiyi Autonomous Community, and it comprised 27 wards. By the provision of section 3 of the Law, that is, the Chieftaincy Law (Edict) of 1978 each autonomous community was required to select and present a traditional ruler. The selection and presentation of the traditional ruler was to be in accordance with the procedure and manner stated in a written document, otherwise known as “Constitution” or Rules and Regulations agreed upon by the community. The “Constitution” that emerged is the document tendered and admitted in evidence in the trial court as Exhibit A.

Eze S. Ogwuegbu Ndieghe of Amaiyi Ukwu became the first traditional head of Amaiyi Autonomous Community. He passed on in 1982. It was the contention of the plaintiff/appellant that, going by Exhibit A, the next traditional ruler should come from Amaiyi-Nta as Exhibit A provides for rotatory selection from the two component parts of Amaiyi Autonomous Community, and that the office of the traditional ruler was not hereditary.

In the light of the plaintiff/appellant’s claim in the trial court, the main issue before that court was the proper interpretation to be given to the provisions of Exhibit A. The first arm of the plaintiff’s claim on which hinged the other three arms, which I do not consider necessary to reproduce now reads:-

“Declaration that by the provisions of the Chieftaincy Constitution of Amaiyi Autonomous Community 1978 in the Etiti L.G.A, within the jurisdiction the selection. appointment and recognition of the community’s traditional ruler should be based on rotatory system.” In his judgment dated 13th July 1987, the High Court held that rotatory method of selection was envisaged by the preamble of the Chieftaincy Constitution Exhibit A, but that “the enacting sections of Exhibit A, to wit. Art 1, 2 and 5 (c) threw the contest wide open to any indegene of Amaiyi nominated by any of the 27 wards and others who may which to nominate themselves.” Relying on the dicta of Lord Halsbury in Powel v. Kempton Park Rececourse Co. (1899) A.C. 143 at page 157 that “two prepositions are quite clear, one that a preamble may afford useful light as to what a statute intends to reach, and the other, that if an enactment is itself clear and unambiguous no preamble can qualify or cut down the enactment” It was also held by the learned trial judge that the third defendant the son of the late traditional ruler was selected in accordance with the unambiguous provisions of Arts 1, 2, 3, 4. and 5 of Exhibit A.

The Court of Appeal agreed with the trial judge and was of the view that there was no ambiguity In the enacting section of Exhibit A that would warrant seeking the aid of the preamble to clarify. It also held that the plaintiff/appellant, having taken part in the contest for the selection and presentation of the traditional ruler, was estopped by conduct from submitting Exhibit A to the High Court for interpretation.

The main issue before this Court is the same as in the trial court and the Court of Appeal. It is whether Exhibit A was ambiguous in the light of the conflict between the preamble and the enacting part contained therein. It is now necessary to set out the relevant preambles of Exhibit A. They read:

“WHEREAS the Government of Imo State of Nigeria in its Extraordinary Gazette No. 20 Volume 3 (Imo State Legal Notice. No. 9) of 14th June. 1978 has recognised AMAINYI comprising the following twenty-sevenwards namely

as a traditional autonomous community in Imo State of Nigeria for the purposes of identifying and selecting traditional rulers and chiefs in Imo State of Nigeria.

WHEREAS it is not necessary here to go into the historical background of chieftaincy institution in this community both before, during and after the British colonial rule in Nigeria,

AND WHEREAS this community has had chiefs of various ranks and titles and at various times and selected by various methods. The selection, appointment and presentation of a traditional ruler/chief, should rotate between Amainyi Ukwu/Amainyi Nla.

AND WHEREAS it has become necessary to have some record for future identification and selection of the traditional ruler and chief of this autonomous.”

It is not in dispute that the preamble in Exhibit A makes it plain that “the selection, appointment and presentation of a traditional ruler/chief should rotate between Amaiyi-Ukwu/Amaiyi-Nta”. It also appears to me that the idea of a rotatory system stems from the provision of section 3 (4) of Law (Edict) No. 22 of 1978 which provides that:

“Where a laid down procedure for the nomination selection or identification of a chief does not exist in an autonomous community, the chieftaincy stool among the component units shall rotate, starting from the most senior member community in traditional ranking.”

With the intention that the selection of a traditional ruler should rotate so clearly expressed in the preamble, one would expect the intention to be made manifest in the enacting pans of Exhibit A.

In apparent resolve to carry out their intention “the entire people of Amainyi Autonomous Community assembled” ruler and chief of Amainyi Autonomous Community is not heriditary”. The people so assembled then proceeded to proclaim thus by Articles 2 and 5 (c):

“2. Each of the twenty-seven wards that make up the autonomous community is equal in all respects to the others and therefore qualified to nominate a candidate along with the other wards for consideration for appointment as the Traditional Ruler and Chief of the Community if and when a vacancy occurs.

5(c) In the events of a vacancy occurring either by death or otherwise, the twenty-seven member cabinet shall officially meet after three months to select a new Traditional Ruler and Chief from among all the candidates nominated by their wards or presenting themselves for selection.”

The effect of Articles 2 and 5(c) amounts to a clear departure from the rotatory system clearly expressed and apparently intended in the preamble, and demanded by the provision of section 3 (4) of Law No. 22 of 1978.

It is against this background one has to consider the effect of the complete change of front by those who assembled on 9th day of July 1978 to “adopt and ratify the following rules and regulations to safeguard our traditional and chieftaincy institutions.” The intention expressed in the preamble of Exhibit A is completely at variance with the relevant provisions of the Articles therein.

There is no doubt that the preamble of a Constitution or Statute has its usefulness, It is usually the key to the understanding of the Constitution or Statute where there is ambiguity. It usually states or professes to state the general object and intention of the law makers, and the purpose of the enactment are envinced therein. As stated by the authors of Black’s Law Dictionary, 6th Edition at page 1175, a preamble is “a clause at the beginning of a Constitution or Statute explanatory of the reasons for its enactment and the objects sought to be accomplished. Generally, a preamble is a declaration by the legislature of the reasons for the passage of the Statute and is helpful in the interpretation of any ambiguities within the Statute to which it is prefixed It has been held however to not be an essential part of an Act, and neither enlarges nor confers powers

The above definition makes it obvious that it is when there are ambiguities within the Statute to which the preamble is an introduction, not ambiguities in the Statute vis-a-vis the preamble that the preamble may be turned to for resolution of the ambiguities. In effect in the preamble the law makers chart for themselves a path to a preconceived destination. If however they decide, even for no reason at all. to change their route in the course of the legislative journey and make for a different destination, the preamble will not override the change in direction. There being a change in direction does not by itself raise an ambiguity. The function of the preamble is to explain what is really ambiguous, not an imagined ambiguity, in the enactment, and it may either restrain or extend it as best suit the intention.

As made plain in Max well on the Interpretation of Statute 11th Edition page 45, “the preamble cannot either restrict or extend the enacting part, when the language and the object and scope of the Act are not open to doubt. It is not unusual to find that the enacting part is not exactly co-extensive with the preamble. In many Acts of Parliament although particular mischief is recited, the legislative provisions extend beyond it. The preamble is often no more than a recital of some of the inconveniences, and does not exclude any others for which a remedy is given by the Statute. The evil recited is but the motive for legislation: the remedy may both consistently and wisely be extended beyond the cure of that evil, and if on a review of the whole Act a wider intention than that expressed in the preamble appears to be the real one, effect is to be given to it not withstanding the less extensive import of the preamble”. This reasoning is in line with the observation of Viscount Simonds in Attorney-General v. Prince Ernest Auguestus of Hanover 1957) A.C. 436 at page 463 that “the contest of a preamble is not to influence the meaning otherwise ascribable to the enacting parts unless there is a compelling reasons for it”.

I have found nothing in the enacting parts of Exhibit A suggestive of even a shade of ambiguity. That an enacting part of a Statute is at variance with the intention expressed in the preamble is not sufficient reason to call in aid the preamble to determine the true meaning of the Statute. Such variance only amounts to abandonment of the intention expressed in the preamble it is in conflict or at variance with. The determination of this issue resolves the appeal in favour of the respondents.

I however wish to express my view briefly on two more issues. The first is issue No. (v) in the appellant’s brief. It reads:

“Was the Court of Appeal right in holding that the appellant was estopped by conduct from instituting action against the respondents by reason of the fact that the appellant took part in the contest for the selection and presentation of the traditional ruler for the Amainyi Autonomous community”

In the leading judgment of the Court of Appeal, Olatuwura.J.C.A (as he then was) remarked that “his (appellant conduct was such that he cannot be allowed to re-open the issue of election wherein he fully participated and lost so as to satisfy his insatiable appetite to rule. He is not a sportsman.” It seems to me that the eminent Justice in making his pronouncement did not take into consideration the fact that it was the contention of the appellant, rightly or wrongly, that it was the turn of Amainyi-Nta to present a candidate to be the traditional ruler, and that the appellant could not waive the right of the Nta community. No individual can waive the right bestowed on a people by their Constitution or rules and regulations proclaimed by them as a matter of public policy for peace, order and harmony in the community, even though such policy may at a point in time be seemingly beneficial to only an individual.

I think the observation of Mahahan O. (India) in Behram Khurshid v. Bombay State (1955) AIR 123 quoted in Ariori Ors. v. Elemo & Ors. (1983) 1 S.C. 13 at 67 although not with approval, is apt in the circumstances of this case. It reads:

“These fundamental rights have no been put in the Constitution merely for individual benefit, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of constitutional policy.”

There is a distinction in respect of rights in which the State or Community itself and the litigants are both interested and the rights in the nature of purely personal rights. It is in respect of the latter that an individual can be estopped by his conduct from subsequently asserting his right. In the case of A-G of Bendel State v. A-G of the Federation & Ors. (1982) 3 N.C.L.R. 1 (1981) 10 S.C. 1 at page 54 Bello, J.S.C. (as he then was) put it succinctly thus:

“Firstly, with regard to private citizens, estoppel may operate against a person who avails himself of the benefit of a statute enacted for the accommodation of purely private rights and subsequently attempts to question its validity. Secondly, the law does not permit a person to contract himself out of or waive the effect of a rule of public policy laid down by a statute and consequently the courts may not invoke estoppel against a person who purported to have contracted himself out or waive such rule.”

Also in a way, as contended by Mr. Iketuonye SAN:, for the appellant, “Exhibit A is the fundamental law of the people of Amaiyi Autonomous Community designed to guide them and those who will live after them in the selection and presentation of a traditional ruler for the Autonomous Community. Exhibit A. was made to serve the interest of the entire people of Amaiyi”.

Although the second arm of the appellant’s claim may appear to be for his own benefit, the four other arms, that is, (a) (c) (d) and (e) sought to proclaim the supremacy of Exhibit A, the Constitution of the Autonomous Community. It is necessary al this stage to reproduce the four arms. They read.

“The plaintiff claims from the defendants jointly and severally as follows:-

(a) Declaration that by the provisions of the Chieftaincy Constitution of Amainyi autonomous Community 1978, in the Etiti L.G.A. within the jurisdiction the selection; appointment and recognition of the Community’s Traditional Ruler should be based on a rotatory system.

(c) Declaration that the 3rd defendant not having been selected in accordance with the said Constitution is not entitled to be presented and recognised as the Traditional Ruler of Amaiyi Autonomous Community aforesaid by the 1st and 2nd defendants or by other authority.

(d) Declaration that any selection, presentation and recognition of the 3rd defendant in violation of the provisions of the Chieftaincy Constitution of Amaiyi Autonomous Community is ultra vires, illegal and null and void.

(e) Injunction restraining the 1st and 2nd defendants by themselves, their servants and agents from recognising the 3rd defendant as the Traditional Ruler of Amaiyi Autonomous Community pending the determination of the action in Court.”

In my view the Court of Appeal was palpably wrong to have invoked estoppel against the appellant on an issue of public interest grounded on the supremacy of the Constitution of the Community.

The last issue I wish to comment on is issue No. Vi. It reads:

“vi. Was the Court of Appeal right in holding that the Legal Notice No.9 of 1978, dated June 1978, destroyed for all purposes the existence of two kindreds in Amaiyi, namely, Amaiyi Ukwu and Amaiyi Nta, so that the system of rotation enshrined in Exh. ‘A’ became inoperative”

The Court of Appeal held that “these two communities as at July, 1978 are mere geographical expression which does not resuscitate the old method of selecting the head chief or traditional ruler in both communities” and that “after the promulgation of the Legal Notice No.9 of 14/6/78 there can be no more distinction between the two former communities Amainyi-Ukwu and Amainyi-Nta.

In my view the Court of Appeal, can be said to be right in its observation that as at July,I978 when Exhibit A was enacted that the old method of selecting the head chief or traditional ruler in both communities cannot be resuscitated. The court however definitely fell into serious error when it held that “after the promulgation of the Legal Notice No.9 of 14/6/78 there can be no more distinction between the two former communities Amainyi-Ukwu and and Amaiyi-Nta. I am of the view that Legal Notice No.9 should be taken together with Edict No. 22 of 1978. It is essential to bear in mind that all that the Legal Notice No.9 did was mainly to list the Autonomous community approved by the Government of Imo State. Law No.22 of 1978 recognised the fact that an Autonomous community may be made up of one or more communities from which wards are created. Section 3(4) of the Law (Edict) which I have earlier set out and which I again reproduce for ease of reference reads:

“Where a laid down procedure for the nomination, selection or identification of a chief does not exist in an autonomous community, the chieftaincy stool amongst the component units shall rotate, starting from the most senior member community in tradition ranking,”

It speaks of member community” not “member ward”. The component units in Amainyi Autonomous community were Amaiyi-Ukwu and Amainyi-Nta. It is obvious that the Government of Imo State was desirous of maintaining the existing units within the community. This is so regardless of the provision. of section 2 which defines Autonomous community as:

“A group of people inhabiting an identifiable geographical area or areas, comprising one or more Autonomous Communities merged together, bound by a common tradition and cultural way of life with a common historical heritage and approved as Autonomous community by the Government.”

There is no doubt that Ukwu community and Nta community were merged together to form one autonomous community known as Amaiyi Autonomous community. The fact however remains that in terms of “member community” the component parts of the new Autonomous Community are Ukwu and Nta. In the instance case in order that the fanner autonomous communities merged together may not lose their identities, section 3 (4) of the Law (Edict) proceeded to provide, in respect of autonomous community with no laid down procedure at the time, for rotation of the starting from the most senior member community in traditional ranking.” This provision which is mandatory highlights the fact that there are communities within an Autonomous community. To say that there can be no more distinction between the two former autonomous communities, Ukwu and Nta, in the light of Law No. 22 of 1978 cannot be correct. It is Exhibit A to my mind, which was made subsequent to law No. 22 of 1978 that has apparently run foul of Law No. 22 of 1978 by failing to take cognizance of the existence of the two member communities constituting the Amaiyi Autonomous community as contemplated by section 3(4) of the Law. The Court of Appeal rightly recognised the fact that as from July, 1978, going by Exhibit A, which runs contrary to the intendment of Law No. 22 of 1978, the two communities became mere geographical expression. The appellant has however not called to question in his claim the validity of Exhibit A. Indeed he has based his claim on its validity.

Failure of a plaintiff to file a defence to a counter-claim may not be disastrous if he succeeds in his claim. His success may render useless the counter-claim depending on the nature of the counter-claim. However where he fails in his claim, as in this case, and had filed no defence to the counter-claim, the defendant’s claim in his counter-claim remains uncontroverted. If however the claim in the counterclaim is for a declaratory right the defendant will still have to satisfy the court that he is entitled to the declaration sought regardless of the failure of the plaintiff to file a defence. The 3rd defendant succeeded in so doing in this case.

Since the appeal fails on the first issue it is bound to be dismissed. I accordingly dismiss it with costs as assessed by my learned brother Nnaemeka-Agu, J.S.C.

Appeal dismissed.

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SC.22/1990