Chief Johnson Emere Nkpornwi V. Hrh Samuel Oluka Ejire & Anor (2009)

LawGlobal-Hub Lead Judgment Report

MOHAMMED LAWAL GARBA, J.C.A.

This appeal is against the decision of the High Court of Rivers State (after now Lower Court) contained in a ruling delivered on the 31/01/05 in suit No. NHC/26/2003. The ruling was in respect of a motion filed by the Respondents herein in which they challenged the locus standi of the Appellant to have instituted the action and that the claims were not justiceable. -The lower Court upheld the challenge and so dismissed the Appellant’s suit in the ruling.

A Notice of Appeal was filed for the Appellant on the 3/2/05 against the ruling containing three (3) grounds of appeal. With the leave of the court, three (3) additional grounds of appeal were filed and as required by the practice in the court, briefs of argument were filed for the parties to the appeal. Once more with the leave of the court, the Appellants brief of argument filed on the 18/3/08 was deemed properly filed on 22/9/08 while the Respondents’ brief filed on 27/2/09 was deemed filed on 15/6/09, the date the appeal was heard. The Appellant’s reply filed on 6/4/09 was also deemed properly filed on the 15/6/09. At the hearing of the appeal, the briefs of argument were adopted as submissions in support of the respective positions of the parties and we were urged to allow or dismiss the appeal as the case may be, by learned counsel. The learned senior counsel for the Respondents, Mr. Wifa SAN made oral amplification of some of the points in the Respondents’ brief.

From the six (6) grounds of appeal, three (3) issues were distilled and submitted for determination in the appeal by Mr. FA Oso, SAN at page 2 of the Appellant’s brief of argument as follows:-

“(i) Whether the Appellant had the standing to have instituted this suit against the Respondents.

(ii) Whether the Appellant’s suit is actionable or disclosed a cause of action.

(iii) Whether or not the court below can depart from his interlocutory ruling.”

On his part, Mr. B.M. Wifa, OFR, SAN submitted that the following two (2) issues arise for determination in the appeal, at page 3 of the Respondents brief of argument:-

“1. Whether the court below was right in relying on its interlocutory decision in dismissing Suit NHC/26/2003.

2. Whether from the facts averred in the Statement of Claim of the Appellant, the Court below was right in holding that the Appellant lacked the requisite standing to institute suit NO. NHC/26/2003 and also that the Appellant disclosed no reasonable cause of action.”

It may be noticed that the only difference between the two set of issues raised by the learned senior counsel for the parties is the style or manner of the formulation. The real substance in the issues is the same such that an answer to one set will completely and fully dispose of the other set.

However the crucial and germane issue that calls for determination in the appeal is in my view, the Appellants’ issue (i) and the Respondents’ issue 2 which is a combination of the Appellants’ issue (i) and (ii). The out come of the determination of the mentioned issues would, which ever way it goes, render the Appellants’ issue (iii) and Respondents’ issue 1 merely academic for the purposes of the appeal. I therefore intend to consider first, the submissions on the earlier mentioned issues in the determination of the appeal. Before a review of the submissions by learned counsel a brief statement of the facts leading to the decision appealed against would provide a good foundation for the appreciation of the issues arising in the appeal.

As Plaintiff in suit NO. NHC/26/2003, the Appellant had vide a motion on notice dated and filed on 26/3/2003, sought the following reliefs from the Lower Court. (as set out on page 1 of record of appeal):-

“1. A declaration that the Plaintiff is fit, proper and qualified person to contest for the office of One-eh-Eleme.

2. A declaration that the Plaintiff has demonstrated his willingness to contest for the office of One-eh-Eleme.
3. A declaration that the Plaintiff has satisfied the essential traditional rites as required by Eleme Native Law and custom of a candidate seeking election to the throne of One-eh-Eleme.
4. Restoratory, Mandatory and Injunction Order of this Honourable Court from scheming the Plaintiff out of the race as a candidate in the exercise for the selection of a new One-eh-Eleme i.e. The King of Eleme Kingdom.”

The Respondents opposed the said motion on two (2) grounds as follows:-