Chief J. O. Ehikhamwen & Ors. V. Prince Iluobe (the Onojie of Uzea) & Ors. (2001)
LawGlobal-Hub Lead Judgment Report
IBIYEYE, J.C.A.
This is an interlocutory appeal from the ruling of Agun, J. of the Uromi Judicial Division of the Edo State High Court of Justice in suit No. HCU/5/96 delivered on the 30th day of October, 1997.
The appellants, as plaintiffs, filed a writ of summons dated 9th of February, 1996 seeking the following reliefs jointly and severally against the respondents, as defendants:
- A declaration that the revocation of the Bendel State Legal Notice No.55 of 1979 being a customary law regulating succession to the traditional rule title of the clan head of Uzea by Edo State Legal Notice of 1995 without any hearing from the plaintiffs is contrary to the fundamental human rights provisions of the 1979 Constitution and provisions of the Traditional Rulers and Chief Edict of 1979.
- An order setting aside the appointment of Prince Itoya Iluobe as the Onojie of Uzea in the Esan North East Local Government Area with effect from 21st September, 1995 contained in the secretary to the Edo State Government letter dated 23rd October, 1995.
- A declaration that it is the turn of the 1st plaintiff who was installed the village head of Ebhoike in 1982 to be appointed the clan head of Uzea.
- An order directing the 3rd, 4th and 5th defendants to appoint the 1st plaintiff as the clan head of Uzea.
- Perpetual injunction restraining the 1st defendant from parading himself as the Onojie of Uzea or presenting himself for coronation and/or being presented with staff of office by the 3rd, 4th and 5th defendants.
- Perpetual injunction restraining the 3rd, 4th and 5th defendants from coronating or presenting the 1st defendant with staff of office or dealing with the 1st defendant in any manner whatsoever inconsistent with the rights of the plaintiffs.”
Before the appellants could file their statement of claim, the 1st and 2nd respondents filed motion on notice seeking the following reliefs:
(a) An order dismissing the plaintiff’s claim in that this honourable court has no jurisdiction to entertain this suit.
(b) In the alternative
(i) Extension of time to apply for an order to discharge, vacate and/or dissolve the order of interim injunction made in respect of this action dated 27th February, 1996.
(ii) An order to discharge, vacate and/or dissolve the order of interim injunction dated the 27th of February, 1996, on the ground of the plaintiff/respondents’ misstatement of their case, either by representation and/or lack of jurisdiction of this honourable court.” The motion was supported by a thirty paragraph affidavit and nine exhibits.
The appellants jointly filed, in reaction, a twenty paragraph affidavit wrongfully titled “Further Affidavit” dated 17th of May, 1996 and a counter affidavit of twenty two paragraphs dated 22nd day of July, 1996.
In the course of moving the motion on the 27th of February, 1979, the learned counsel for the respondents/applicants abandoned the alternative relief and the trial court struck it out.
Both the learned counsels for the respondents and the appellants argued the surviving relief of the 1st and 2nd respondents. The learned trial Judge in his ruling said, inter alia, at page 89 of the record of appeal as follows:
“I therefore hold that the court has no jurisdiction to entertain the claim. I further hold that in view of my preceding remarks, the claim does not merit any consideration.
Consequently, the application substantially succeeds and the claim is hereby struck out with N3,000 cost (sic) in favour of the 1st and 2nd defendants/applicants.
The appellants were aggrieved by the ruling and filed five grounds of appeal. In strict compliance with the rules of this court, the appellants filed a joint brief of argument. The appellants adumbrated the following five issues from the five grounds of appeal:
“(1) Whether the learned trial Judge was right in his view that the revocation of the legal notice No.55 of 1979 by Legal Notice of 1995 contrary to the provisions of the 1979 Traditional Rulers and Chieftaincy Edict is an act done by the executive and so cannot be inquired into by the High Court based on ground 1?.
(2) Whether the procedure adopted by Mr. Imobhio and his co-officials in holding meetings with five different component villages behind the back of the appellants and basing their recommendation on the minutes of same did not fall short of the requirement of fair hearing?
Based on ground 1
(3) Whether the learned trial Judge was right in his view that the provisions of an Edict is superior to the provisions of the 1979 Constitution. Based on ground 2?.
(4) Whether the learned trial Judge was right in not considering the appellants’ statement of claim which had been filed since 1996 and was a part of the records before him in his determination of the issue of whether or not the High Court has jurisdiction to entertain the plaintiffs’ claim as constituted?.
Based on ground 3.
(5) Whether the learned trial Judge was right in his view that “once a declared customary law regulating succession to traditional rulership title is registered it is deemed to be correct customary law and can therefore not be questioned by a court of law” when issues were not joined by the parties as to whether or not the new declaration was registered. Based on ground 4″. (Italics for emphasis)
The 1st and 2nd respondents, on their part, formulated the following two issues:
“(1) Whether the learned trial Judge was right in holding that he lacked jurisdiction to hear the suit?.
(2) Whether the learned trial Judge was right in dismissing the suit when the defendants/respondents did not file their statement of defence before bringing the motion to dismiss the suit?.”
The 3rd, 4th and 5th respondents jointly identified one issue thus:
“Whether the trial court has jurisdiction to entertain the case in view of Decree 13 of 1984, other allied Decrees and provisions of the Chieftaincy Edict of 1979?.”
In view of the s and possible purport of the issues raised by the parties for the determination of this appeal, I shall critically consider particularly those formulated by the appellants and 1st and 2nd respondents. Thus, the appellants’ issues 1 and 2 are apparently formulated from one ground of appeal, that is to say ground 1 of the grounds of appeal. Learned Counsel who appear in the Supreme Court and this court should by now be quite conversant with formulation of issues for consideration by these two superior courts of record. There is a plethora of decided cases both in the Supreme Court and this court dealing with the various aspects of brief writing.
These decisions have been complemented by works of learned authors. I shall, however, confine myself to noticeable proliferation in the instant appeal.
The principle governing the formulation of issues for determination is that a number of grounds of appeal could where appropriate, be covered by a single congruous issue for determination and it is penalty undesirable to split a ground of appeal into several issues as the appellate courts take a non favourable view to proliferation of issues for determination. It is not only undesirable but also confusing to split a ground of appeal into more than one issue. The practice of splitting issues is likely to confuse consideration of principal issues with subsidiary issues. See Labiyi v. Anretiola (1992) 8 NWLR (Pt.258) 139; Agbetoba v. Lagos State Executive Council (1991) 4 NWLR (Pt 188) 664, (1991) 6 SCNJ 1 and Osasuwa v. Edo State Civil Service Commission & Anor. (1999) 4 NWLR (Pt.597) 155 at 161. It is also settled that most appeals are won on a few cogent and substantial issues, well framed researched and presented rather than on numerous trifling slips. See Ugo v. Obiekwe & anor (1989) 1 NWLR (Pt. 99) 566; A.G. Bendel State v. Aideyan (1989) 4 NWLR (Pt.118) 646; Adelaja v. Fanoiki (1990) 2 NWLR (Pt. 131) 137 and Folorunsho v. Folorunsho (1996) 5 NWLR (Pt. 450) 612.
In the instant case, the appellants in their issues 1 and 2 appear to have thrown the several deprecated observations of the courts to the winds in their apparent proliferation of issues on just the ground of appeal. By the character of these two issues, the appellants have made out options for the court. It is not within the province of any court to read the minds of litigants from the briefs filed in order to determine issues they consider appropriate for the due determination of the appeal before it. I am not unmindful of the settled principle of law that a defective or inelegantly written brief may attract adverse comment of the appellate court but it can hardly lead to dismissal of an appeal. See Obiora v. Osele (1989) 1 NWLR (Pt.97) 279. Where, however, the party or parties in their briefs have made the functions of the court rather complex in the choice of issues as in this case, it is only reasonable that such issues be discountenanced for their duplicitous nature. Issue 1 and 2 are accordingly discountenanced.
I have observed that the appellants’ issue 4 which is based on ground 3 of the grounds of appeal does not arise from the record of appeal.
It is settled that grounds of appeal shall be culled from the findings in the record of proceedings in the court below. Where a ground of appeal is formulated from non-existing facts in the court below, it is baseless and incompetent. Any issue raised therefrom is liable to be struck out.
In the instant appeal, I found that no statement of claim was filed nor was it recorded in the record of proceedings. The matter have not even reached the stage of filing the statement of claim when the respondents objected to the lower court assuming jurisdiction. All that was available before the lower court before the objection was taken was the writ of summons as set out earlier. It appears that issue 4 based on ground 3 of the grounds of appeal arose in nubibus from the sky. Since issue 4, an extrinsic issue raised without the leave of court, was separately argued in the appellant’s brief, its incompetence will not affect the entire appeal.
It will instead be limited to issue 4. It is accordingly struck out.
In effect, the appellants’ brief has only two surviving issues, that is to say issues 3 and 5.
As regards the joint brief filed by the 1st and 2nd respondents, it appears their issue 2 is visited by baselesness as it was not culled from any of the five grounds of appeal. It is settled that issues framed for determination in an appeal must be related to or predicated upon a ground of appeal in the matter. Both the appellant and the respondent are entitled to formulate their respective issues for determination and such issues must flow from the ground or grounds of appeal in the matter. If an issue has no bearing with the ground of appeal, it becomes irrelevant and it (the issue) and argument canvassed in support will be struck out for want of competence.
See Tukur v. Government of Taraba State (1997) 6 NWLR (Pt.510) 549 at 570; African Petroleum Ltd. v. Owodunni (1991) 8 NWLR (Pt.210) 391 at 423 and Okoye v. Nigeria Construction and Furniture Co. Ltd. (1991) 6 NWLR (Pt.199) 501 at 533.
It is further trite that if the respondent does not cross appeal, he or it must formulate issues for determination in the appeal with reference to the grounds filed by the appellant. See Eze v. Federal Republic of Nigeria (1987) 1 NWLR (Pt.51) 506 at 521 and 522; Adigun v. Ayinde (1993) 8 NWLR (Pt.313) 516 and Baridam v. The State (1994) 1 NWLR (Pt.320) 250.
In the instant appeal, issue 2 in the respondents’ brief of argument does not flow from any of the grounds of appeal. It is therefore liable to be struck out. It is accordingly struck out.
In view of the foregoing exercise (supra) the surviving issues in the three briefs of argument are issues 3 and 5 of the appellant’s brief and one identical issue each in the two sets of respondent’s
briefs. In effect, there are three issues for the determination of this appeal. I am of firm opinion that it will make for clarity to reproduce those issues. The eventual rearranged three issues are as follows:
“1. Whether the learned trial Judge was right in holding that he lacked jurisdiction to hear the suit?.
- Whether the learned trial Judge was right in his view that the provisions of an Edict is superior to the provisions of the 1979 Constitution…?
- Whether the learned trial Judge was right in his view that “once a declared customary law regulating succession to traditional rulership title is registered, it is deemed to be the correct customary law and can therefore not be questioned by a court of law” when issues were not joined by the parties as to whether or not the new declaration was registered … ?”
It is appropriate at this stage to observe that the appellants filed five grounds of appeal and it is apparent from their joint brief of argument that no issue was raised from ground 5. The ground of appeal in point reads:
“5. The decision is against the weight of evidence.’
It is settled that where no issue is raised in respect of a ground of appeal and the appellant fails to pursue or canvass argument in his brief on the ground of appeal, such ground of appeal will be deemed to have been abandoned and will therefore be struck out by the appellate court. See Ndiwe v. Okocha (1992) 7 NWLR (Pt.252) 129 at 138; Incar Nigeria Plc & anor v. Bolex Enterprises Nig. Ltd. (1996) 6 NWLR (Pt.454) 318 and Agbaisi v. Ebikorefe (1997) 4 NWLR (Pt. 502) 630.
In the instant appeal, since no issue was formulated by the appellants on ground 5 of the grounds of appeal, that ground of appeal is deemed abandoned. It is accordingly struck out.
At the hearing of this appeal, the learned counsel for the appellants and the 1st and 2nd respondents were present, while the 3rd to the 5th respondents and their learned counsel were absent. A joint brief of argument was, however, filed by the 3rd to 5th respondents. I am satisfied that the 3rd to the 5th respondents were duly served process to appear in court on the 23rd of March, 2001, being the date set down for hearing. I shall in the circumstance invoke Order 6 rule 9(5) of the Court of Appeal Rules 1981 as amended, and deem that their brief has been orally presented.
At the hearing, both learned counsels for the appellants and the 1st and 2nd respondents adopted and relied on their briefs of argument and urged the court to allow and dismiss the appeal respectively.
The 3rd, 4th and 5th respondents and their learned counsel were absent.
The said respondents had, however, filed a joint brief. In view of the fact that those respondents were aware of the date of hearing this appeal, I shall therefore invoke 0.6 r.9(e) of the Court of Appeal
Rules 1981 as amended and deem the appeal as having been duly argued.
On issue 1, in view of the fact that the appellants’ formulation of two condemnable issues from one ground of appeal, their submissions on it can hardly be considered. I shall instead consider arguments canvassed on this issue by the learned counsel for the respondents.
O. R. Edioweme Esq., the learned counsel for the 1st and 2nd respondents referred to Exhibits 2 and 3 on the approval of the customary law regulating succession to the title of clan head of Uzea by the Bendel State Executive Council and the minutes and recommendations of the committee set up by the same executive council by virtue of sections 7 and 8 of the Traditional Rulers and Chiefs Edict 1979 (hereinafter referred to as Chiefs Edict of 1979) respectively. He expatiated that that committee recommended to the state executive council a new customary law regulating the succession to the title to Onojie of Uzea. The executive council of Edo State in accepting that recommendation issued Edo State Legal Notice No.7 of 1996 which revoked the defunct Bendel State Legal Notice No. 55 of 1979. He further pointed out that one of the consequences of the revocation was to effect a change in the nomenclature of the traditional ruler of Uzea from clan head to Onojie and it was statutorily backed by Edo State Legal Notice No.10 of 1996. By the Edo State Legal Notice No. 11 of 1996, the executive council acting under the powers conferred on it by section 19(1) of the Chiefs Edict of 1979 appointed the 1st defendant as the Onojie of Uzea. He submitted that all the legal notices Nos. 7, 8, 10 and 11 (supra) as exhibited by the respondents in their motion argued in the court below were made as subsidiary legislation pursuant to the Chiefs Edict 1979 which is the principal law and he relied on the case of Ogunlowo v. Ogundare (1993) NWLR (Pt.307) 610.
Learned Counsel argued that those legal notices cannot be challenged in a court of law by virtue of section 5 of Decree No.1 of the Constitution (Suspension and Modication) Decree 1984 and section 7(2) of the Constitution (Suspension and Amendment) Decree No.17. He cited in support the cases of Obaba v. Military Governor of Kwara State (1994) 4 NWLR (Pt.336) 26,(1994) 6 KLR 115 and Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt.315) 1, (1994) 1 KLR. 1.
The learned Counsel critically viewed the appellants’ writ of summons and contended that what the appellants sought to do was to challenge the decision of the Edo State Executive Council in the exercise of the power conferred on it by the Chiefs Edict 1979 by their reliefs 1 and 2(supra). He submitted that recourse to the court was not immediately open to the appellants in order to vent their grievance against the appointment of the 1st respondent. The proper course should have been an appeal to the Executive Council for redress. He further submitted that since the appointment of the 1st respondent was made by the Edo State Executive Council pursuant
to the Chiefs Edict 1979 as applicable to Edo State, the appellants cannot challenge the law as its decision is final by virtue of section 19(6) of Chiefs Edict 1979.
Learned Counsel for the 1st and 2nd respondents submitted that, as at the time the appellants filed their writ of summons seeking that the 1st appellant – the village head of Uzea – be declared the clan head of Uzea, there was already a new registered declaration of customary law regulating the succession of the traditional ruler’s title of Uzea.
The learned Chief Legal Officer in the Edo State Ministry of Justice, Mrs. C.I. Avielele, urged, on behalf of the 3rd, 4th and 5th respondents, the court to hold that the trial court was right when it held that it had no jurisdiction to entertain the appellants’ case. The learned counsel equally relied on the Chief Edict 1979 and legal notices numbers 7, 8,9,10 and 11 of 1996 (supra). She submitted that these legal notices being subsidiary legislation have the same force of law as the principal law and she relied on The Ogunlowo v. Ogundare case (supra). Learned Counsel argued that since the said legal notices were made under the Chiefs Edict 1979, they cannot, by virtue of section 5 of Decree No.1 of 1984 be challenged in any court of law. She also referred to section 1(2)(b)(1) of the Federal Military Government (Supremacy and Enforcement of Power)Decree 1984 and the cases of Obaba v. Military Governor of Kwara State (supra) and Eguamwense v. Amaghizemwen (supra). She submitted that the Edo State Executive Council acted within prescribed authority as enshrined in sections 15, 18 and 19 of the Chiefs’ Edict 1979 by appointing the 1st respondent as the Onojie Uzea.
It is patently clear from the writ of summon that the bone of contention is the appointment of the 1st respondent and not the 1st appellant as the traditional ruler of Uzea. It will be recounted that I have earlier on held that the proliferation of issues on ground I of the grounds of appeal has adversely affected any consideration of submissions on behalf of the appellants, notwithstanding, I shall critically appraise the submissions on behalf of the respondents.
The principal issue in this appeal is the succession to the stool of Uzea. It is apparent that the Chiefs Edict of 1979 has comprehensively made provisions on all questions that may arise on the traditional rulership in the defunct Bendel State from which Edo State was creacted. Since this Edict was promulgated specifically for the appointment and resolution of conflicts in appointments, among others, of chiefs and traditional rulers, it is settled that the court shall confine itself within the ambit recourse to extrinsic law which may be of general application. The question is:
“How valid is the Chiefs Edict of 1979 as at the time the cause of action arose in 1996? Before answering this question, it is pertinent to note that the instant action was instituted on 15/2/96, that is to say several years after 1979. Another relevant question is: Was the Chief Edict of 1979 in any way affected by the coming into force of the Constitution of the Federal Republic of Nigeria in October 1979 (hereafter referred to as 1979 Constitution) in the applicability of its provisions? Section 274(4) reads, in pertinent part, “274(4).In this section, the following expressions have the meanings assigned to them respectively: –
(a) “appropriate authority” means-
(ii) the Governor of a state in relation to the provisions of any existing law deemed to be a law made by the House of Assembly of that State ;or
(b) “existing law” means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force or which having being passed or made before that date comes into force after that date …. ”
From the foregoing, there is no doubt that the Chiefs Edict of 1979 is an existing law irrespective of its nomenclature.
Section 6(6)(d) of the 1979 Constitution is germane to the second question and it reads:
“(6) The judicial powers vested in accordance with the foregoing provisions of this section (d) shall not, as from the date when this section comes into force, extend to any action or proceedings relating to any existing law made on or after 15th January, 1966 for determining any issue or question as to the competence of any authority or person to make such law.”
(Italics for emphasis).
Section 5 of Decree No.1 of 1984 (supra) has similar purport as section 6 (6)(d) of the 1979 Constitution (supra). It reads:
“5. No question as to the validity of this Decree or any Edict shall be entertained by any court of law in Nigeria.”
Section 1(2)(b)(1) of Decree No. 13 of 1984 (supra) also states:
“1(b)(1).No civil proceedings shall lie or be instituted in any court or on account of or in respect of any act, matter or thing done under or pursuant to any Decree or Edict and if any such proceedings are instituted before, on or after the commencement of this decree the proceedings shall abate, be discharged and made void.” (Italics for emphasis)
These are very powerful provisions on outster of court’s jurisdiction in relation to the appellants’ action. There is no doubt that the cause of instant action arose during the effective operation of those three different legislation. It is trite that the relevant law applicable in respect of a cause or matter is the law in force at the time the cause of action arose and in the case of the law relating to jurisdiction when the cause of action was instituted. See Utih & ors v. Onoyivwe & ors (1991) 1 NWLR (Pt.166) 166 at 201, 207, 220 and 225.
In the instant case, the cause of action arose in 1996 and was instituted on 15/2/96, when the 1979 Constitution, Decrees 1 and 13 of 1984 and the Chiefs’ Edict of 1979 were in force. It therefore follows that the applicable law with regard to jurisdiction vis-a-vis appointment of traditional rulers in Edo State in general and Uzea in particular is the Chiefs Edict of 1979. The Chiefs Edict 1979 in its sections 19(6) and section 22(4) (a) provide for ouster of jurisdiction and they read:
“(6) The decision of the executive council under this section shall be final and shall not be questioned in any court.”
(4) The decision of the prescribed authority or the executive council as the case may be (a) to approve or not to approve the conferment of a traditional chieftaincy title on a person or determining a dispute in accordance with subsection (3) of this section shall not be questioned in any court. ”
Sub-Section 3 of section 22 reads:
“(3) Where there is a dispute as to whether a traditional chieftaincy title has been conferred on a person in accordance with customary law or as to whether a traditional chieftaincy title has been conferred on the right person, the prescribed authority or the executive council as the case may be, may determine the dispute.” (Italics for emphasis)
In the instant case, the 1st respondent was appointed as the Onojie of Uzea by the executive council which is the prescribed authority by virtue of section 19 of the Chiefs Edict of 1979. The appellant action therefore appears to be caught by the ouster clause.
What then is the attitude of the court to statutes or subsidiary legislation ousting the jurisdiction of the court? It is a trite rule of interpretation that where a statute seeks to oust the jurisdiction of the court, the statute must be strictly construed and any ambiguity will be resolved in favour of vesting jurisdiction in the court. The jurisdiction of the court can only be excluded by clear provisions of the Constitution and the provisions of the relevant law.
In the instant case, I have taken a hard look at the 1979 Constitution, the decrees referred to above and in particulars section 19(6) of the Chiefs Edict 1979 and I failed to see any ambiguity which could have vested jurisdiction in the trial court. The relevant provisions are clear enough as they oust the jurisdiction of any court and in this case, the court below. It is equally perforce that, since sections 19 and 22 of the Chiefs Edict 1979 as applicable to Edo State have expressly and unambiguously made provisions excluding the jurisdiction of the court in the selection of Chiefs according to customary law, conferred its exercise on a prescribed authority or the executive council, it is no longer a function exercisable by the court. See Eguamwense v. Amaghizemwem (1993) 9 NWLR (Pt. 315) 1, (1994) 14 LRCN 181 at 183.
The learned trial Judge in the court below was therefore right to hold that it lacked jurisdiction to entertain the appellant’s case.
Since the question of jurisdiction is the principal issue in this appeal, I am of the strong opinion that it will be purely academic exercise to consider issues 2 and 3 which are subsidiary questions which will not disturb my view on main issue.
In the final analysis, the appeal lacks merit. I affirm the ruling of the court below striking out the appellant’s case for want of jurisdiction. I assess costs at N4,000.00 in favour of the two sets of respondents.
Other Citations: (2001)LCN/0990(CA)
