Chief Nnamuzie Obi & Ors V. Ben Ilokwu Okeke (2008)
LawGlobal-Hub Lead Judgment Report
STANLEY SHENKO ALAGOA, J.C.A.
At the High Court of Justice, Ihiala in the Ihiala Judicial Division of Anambra State of Nigeria, the Appellants as Plaintiffs claimed against the Respondent as defendant as follows:
(a) A declaration that the defendant is not the rightful person to be installed the Igwe of the Okija Community and his conduct of parading himself as the traditional ruler of Okija is contrary to the Okija Chieftaincy Constitution and code of conduct (Revised and Amended 1994) and contrary to the traditional rulers Law No 14 of 1981.
(b) A declaration that the Okija Chieftaincy Constitution and code of conduct (Revised and Amended 1994) is the operational document which binds the defendant and any other contestant for the traditional rulership of Okija.
(c) A declaration that the condition precedent for the selection of a new traditional ruler of Okija has not been fulfilled to enable the defendant or anyone interested in the traditional Rulership to be installed or parade himself as the traditional ruler of Okija.
(d) An order that the defendant is not the right person to be installed the Igwe of Okija Community and his conduct of parading himself as the traditional ruler of Okija is contrary to Okija Chieftaincy Constitution and code of conduct (Revised and Amended 1994) and contrary to the Traditional Rulers Law No 14 of 1981
(e) An order that the Okija Chieftaincy Constitution and the code of conduct (Revised and Amended 1994) is the operational document which binds the defendant and any other contestant for the traditional rulership of Okija
(f) An order that the condition precedent for the selection of a new traditional ruler of Okija has not been fulfilled to enable the defendant or anyone interested in the traditional rulership to be installed to parade himself as the traditional ruler of Okija.
(g) An order that the Quarter or kindred unit presently in Okija who can present a member or their nominee is the Uhuobo na Uhuowelle Quarter or Kindred unit of the 2nd and 3rd plaintiffs.
(h) An order of injunction restraining the defendant aided by his agents, servants, privies and otherwise from parading himself as the traditional ruler of Okija and from wearing the regalia of such traditional ruler and performing functions of the traditional ruler of Okija.
Pleadings were filed and exchanged between the parties and the matter went on to be heard but not before the former Judge handling the matter Nzegwu J. had made an order for accelerated hearing for the 21st, 28th September and 7th October 2004. The said order was made on the 22nd July 2004. From available records, the new Judge to whom this matter was assigned Nwankwo J, on the 14th November 2005 made a further order for accelerated hearing of this Suit and fixed hearing of the Suit to the 5th and 8th December 2005 as well as the 24th, 26th and 30th January 2006. Hearing however commenced on the 8th December 2005 with the evidence of P.W.1 Chief Nnamuzie Obi being taken. In the course of that evidence Plaintiff/Appellant’s counsel sought to tender a document a piece of an advertisement and the Defendants/Respondent’s counsel objected to its admissibility. Arguments were taken on the objection and the learned trial Judge Nwankwo .J ruled as follows at page 85 of the Record of Appeal, “Ruling on this objection is deferred till Judgment so as to move the case forward. Meanwhile the document is to be marked “DR 1″ in the interest of Justice.” P.W. 1 continued with his evidence in the course of which another document – a copy of the Igwe and Igwe’s Solicitor’s letter to the Anambra State Government was sought to be tendered as an exhibit by the Plaintiff/Appellant’s Solicitor. Objection was taken to the admissibility of this document as an exhibit and arguments on the objection were taken by both counsel and the learned trial Judge ruled on this objection at page 86 of the Record of Appeal as follows, “Ruling on this objection is Reserved or Deferred till Judgment so as to move this case forward. Meanwhile this document is to be marked “RR 2″ in the interest of Justice.” The fact that the Learned trial Judge Nwankwo .J failed to deliver his ruling on these objections has given rise to this appeal. The Appellants Notice of Appeal is dated the 15th December 2005 and filed same day and can be found on pages 88 – 90 of the Record of Appeal. For ease of reference it is reproduced in its entirety below:
NOTICE OF APPEAL
- TAKE NOTICE that the Plaintiffs/Appellants dissatisfied with the decision of the High Court of Ihiala sitting at Ihiala contained in the ruling of Hon. Justice Nwankwo dated 8th day of December, 2005 doth hereby appeal to the Court of Appeal upon the ground set out in paragraph 3 and will at the hearing of the Appeal seek the relief set out in paragraph 4.
- And further state that the names and addresses of persons directly affected by the Appeal are set down in paragraph 5.
THE WHOLE DECISION
- GROUNDS OF APPEAL
- ERROR IN LAW
The Learned Trial Judge erred in law by failing to rule on the admissibility of two documents sought to be tendered as Exhibits by the Plaintiffs/Appellants, rather ordered that the documents be endorsed as RRI and RR2 pending final judgment, which endorsements are not exhibits or for identification, are unknown to any law and the EVIDENCE ACT CAP.112 LAWS OF THE FEDERATION OF NIGERIA, 1990.
Particulars of Error
(a) The lower court failed to carry its duty of ruling on the admissibility of two documents.
(b) Instead of ruling on the applications to tender documents as exhibits, the lower court ordered that the documents be endorsed RR1 and RR2 respectively.
(c) RR which is open to any body’s guess is not known to any known law or the Evidence Act, 1990.
(d)A court ought to rule on every application before proceeding any further with the said matter.
II ERROR IN LAW
The Learned Trial Judge erred in law by not ruling on the admissibility of documents sought to be tendered in Suit No. HIH/32/2004 despite the fact that the court ought to rule on every application before the court before proceeding with the trial indicating that the lower court lost sight of the doctrine that the wheel of justice grinds slowly but surely, but was in a hurry to conclude the matter without due diligence to the interest of Justice.
Particulars of Error
(a) Every application before a court should be ruled upon.
(b) The court ought to decide on the admissibility or inadmissibility of the Documents before proceeding further with the trial. Not having ruled but was interested in proceeding with such ruling on The admissibility of the document, it is clear, with the greatest respect, that the lower court lost sight of the doctrine that the wheel of justice grinds slowly but surely, but was in a hurry to conclude the matter without due diligence to the interest of justice.
FURTHER GROUNDS OF APPEAL WILL BE FILED ON RECEIPT OF THE RECORD OF APPEAL
- RELIEFS SOUGHT FROM THE COURT OF APPEAL.
(1) To order that the court ought to rule on the admissibility or inadmissibility of the documents endorsed as RR1 and RR2 before the lower court proceeds further with the trial of Suit No. HIH/32/2004.
(2) An order that Suits No. HIH/32/2004 be heard and determined by another judge sitting in Anambra State other than the present trial judge.
- PERSON DIRECTLY AFFECTED BY THIS APPEAL APPELLANTS
- CHIEF NNAMUZIE OBI
(The Obi Onowu of Okija)
(For himself and on behalf of Okija Royal Cabinet)
- Chief Sylvanus I. Nweme
- CHIEF FELIX EWUZIE (for themselves and on behalf of the members
of Uhuobo na Uhuowelle village of Okija and
the entire members of Okija Community excluding the Defendant)
ADDRESS
c/o Nnamdi Ibegbu Esq. SAN,
10 Martin Street, Onitsha.
RESPONDENT
BEN ILOKWU OKEKE ADDRESS
c/o His Counsel
c/o A.N. Anyamene, Esq
SAN, 1 Marcus Garrey
Street, New Haven,
Enugu.
DATED THIS 15TH DAY OF DECEMBER, 2005.
NNAMDI IBEGBU, ESQ. S.A.N.
Plaintiffs/Appellants’ Counsel
Whose Address For Service Is:-
Ibegbu & Ibegbu
Legal Practitioners
10 Martin Street
Onitsha.
FOR SERVICE:-
The Defendant/Respondent
C/o His Counsel
A.N. Anyamene, Esq. S.A.N.
New Haven, Enugu.
When this appeal came up for hearing on the 3rd April 2008, Afam Obi, Counsel for the Appellant adopted and relied on the Appellant’s Brief of Argument dated the 17th April, 2007 and filed same day and urged this court to allow the appeal and remit the case for determination by another Judge of the Anambra High Court. Ifeanyi Okumah Counsel for the Respondent also adopted and relied on the Respondent’s Brief of Argument dated the 29th May 2007 and filed on the 4th June 2007 and urged this court to dismiss the appeal. He drew this court’s attention to the Notice of preliminary objection dated the 15th June 2006 and filed on the 19th June 2006 the argument of which is in corporated in the Brief of Argument of the Respondent.
I shall now proceed to deal with the Notice of preliminary objection before delving into the merits of the appeal. Apart from filing a separate Notice of Preliminary objection in compliance with the court of Appeal Rules the Respondent has in corporated arguments in respect thereof at pages 2 and 3 of the Respondents Brief of Argument and has contended as follows:-
(a) That the appeal is incompetent.
PARTICULARS
(i) The appellate jurisdiction of this court is to hear appeal inter alia from decisions of the High Court. The statement of the trial court in the course of hearing that it would give its rulings on the admissibility of the two documents tendered in evidence in its Judgment is not a decision let alone an appealable decision. There is no rule of court which prescribes that a ruling on an interlocutory matter must be given before proceeding further with the hearing of a Suit.
(ii) “Decision” in relation to a court is defined in section 318 of the Constitution as any determination of that court and includes judgment, decree, order, conviction, sentence or recommendation. The remark by the court that it would give its decision on the admissibility of the two documents while delivering its Judgment in the Suit decided nothing, determined nothing let alone the admissibility of the two documents. As stated by the Court of Appeal in NDIKA V. CHIEJINA (2002) FWLR (PART 117)1178 only a ruling which resolves an interlocutory dispute between the parties is appealable.
(b) Even if it was an appealable decision (which is not conceded) the complaint is against the exercise of discretion by the trial court and an appeal against the exercise of discretion can only lie with leave of the High Court or of this Court: See section 242(1) of the Constitution and IFEDIORAH Vs. UME & ORS (1988) 2 NWLR (PART 74) 5 at 16. No leave was sought let alone obtained before filing the Notice of appeal which rendered this appeal invalid. That is the submission of learned counsel for the Respondent on the Notice of preliminary objection. The Appellant has not filed any Reply Brief of Argument to counter this submission. I shall deal with the second arm of the submission on the preliminary objection first. The Respondent has submitted that leave either of the High court or the Court of Appeal ought to have been sought and obtained before filing the Notice of Appeal and this was not done.
Reference has been made to section 242(1) of the Constitution of the Federal Republic of Nigeria 1999. That section provides as follows:
“Subject to the provision of section 241 of this Constitution, an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal with the leave of the Federal High Court or that High Court or the Court of Appeal.” Section 241 to which section 242 is subject makes reference to several situations in which an appeal shall lie from decisions of the Federal High Court or a High Court to the Court of Appeal as of right. The purport is invariably that where an appeal does not lie as of right to the Court of Appeal, leave of the Federal High Court or the High Court or the Court of Appeal must be sought for and obtained before an appeal from the decision of the Federal High Court or the High Court can be filed. But does the pronouncement of Nwankwo J that “Ruling on this objection is deferred till judgment so as to move the case forward. Meanwhile the document is marked “DR 1″ in the interest of justice” as contained at page 85 of the Record of Appeal or “Ruling on this objection is Reserved or Deferred till Judgment so as to move this case forward. Meanwhile this document is to be marked “RR 2″ in the interest of Justice” amount to a decision? Part IV of the Constitution of the Federal Republic of Nigeria 1999 which deals with the Interpretation, citation and Commencement of the Constitution provides in its section 318(1) as follows, “In this constitution unless it is otherwise expressly provided or the con otherwise requires “decision” means in relation to a court, any determination of that Court and includes Judgment, decree, order conviction sentence or recommendation.” The pronouncement of Nwankwo J is undoubtedly a determination of that Court. It is also an order of that Court and accordingly meets the requirement of a “decision” under sections 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999 and it is therefore appealable.The contention of learned counsel for the Respondent that the statement of the trial Judge in the course of hearing that it would give its rulings on the admissibility of the two documents tendered in evidence in its judgment is not a decision let alone an appealable decision as canvassed in his preliminary objection cannot therefore be correct. Whether such an appeal is as of right or with leave is an entirely different matter. The decision of Nwankwo .J is an exercise of discretion and the complaint of the Appellant is against the exercise of that discretion as can be seen from the grounds of appeal. Is the exercise of discretion by a trial Court a matter of law or fact? The notion that the exercise of a Court’s discretion is a matter of law was rejected by the Supreme Court in BENNET IFEDIORA & ORS V. BEN UME & ORS (1988) 2 NWLR PART 74 page 5 at page 16. Nnaemeka Agu JSC had this to say at page 16 paragraphs B-D, “I do not agree with the learned counsel for the Respondent that exercise of a Court’s discretion is a matter of law. I rather agree with the learned counsel for the Appellants that as the principles and manner in which a Judge ought to exercise his discretion in a particular case is a question of fact depending on the facts and circumstances of each case whether he exercised it rightly in any particular case is at least a question of mixed law and fact.” I have dwelt at length on this in view of section 241(1)(b) of the Constitution which provides that an appeal shall lie as of right where the ground of appeal involves questions of law alone. It is clear that appeal here does not lie as of right under any of the provisions of section 241 of the Constitution and the Appellant ought to have first sought for and obtained leave before filing this appeal. The preliminary objection therefore succeeds and the appeal is accordingly dismissed.
There shall be N30,000.00 (thirty thousand naira) costs in favour of the Respondent against the Appellant.
Other Citations: (2008)LCN/2805(CA)
