Hon. Chief Adolphus Ndunewe Wabara & Ors V. Chief Obioma Nnadede & Ors. (2009)
LawGlobal-Hub Lead Judgment Report
TIJJANI ABDULLAHI, J.C.A.
This is an appeal against the judgment of the High Court of Justice, Abia State, Qoram S. N. Imo (J) sitting at the Ukwa Judicial Division delivered on the 26th day of June, 1996 in Suit No. HUK/109/96.
The Appellants as Plaintiffs in the lower Court instituted the said suit against the Respondents as Defendants claiming the following reliefs:
“(a) A declaration that the first Defendant is not entitled to occupy and/or sit on the traditional stool or throne of the Ezeship of the Ikwueke Autonomous community under the Native Law and Customs/Traditions of the Ikwueke Autonomous Community.
(b) A declaration that the presentation of the first Defendant as the Eze-elect of Ikwueke Autonomous Community to the second Defendant by the Ikwueke Council of Chiefs is NULL, VOID and INOPERATIIVE in law.
(c) An injunction restraining the second Defendant from presenting the first Defendant as the Eze-elect of Ikwueke Autonomous Community to the third Defendant for recognition.
(d) An injunction restraining the third and fourth Defendants, their servants, agents and privies or otherwise whosoever from accepting or recognising the first Defendant as the Eze-elect or Eze of the Ikwueke Autonomous Community.
(e) An injunction restraining the first Defendant from parading or presenting or representing or conducting himself in any manner whatsoever as the Eze-elect or Eze of the Ikwueke Autonomous Community.
(f) An injunction restraining the first, second, third and fourth Defendants, their servants, agents and/or privies or otherwise whosoever, jointly and severally, from parading, presenting, representing or conducting the first Defendant as the Eze-elect or Eze of the Ikwueke Autonomous Community.”
On the 3rd day of May, 1996 the 3rd and 4th Defendants/Respondents filed an application dated the 10th day of April, 1996 praying the Court to set aside the writ of summons in the suit aforesaid on the ground that the Court lacked jurisdiction to entertain the same as the 3rd Defendant/Respondent had not exercised the statutory duty or power conferred on him pursuant to the provisions of the Traditional Rulers and Autonomous Communities Edict No. 8 of 1991. In other words that the suit was premature. (See page 56 of the Record of Appeal).
The Plaintiffs/Appellants on the 15th day of May, 1996 filed a thirty-one paragraph counter affidavit in opposition to the said application (See pages 59 – 63 of the record of appeal). 3rd and 4th Defendants/Respondents entered an unconditional appearance to the said suit and arguments for and against the preliminary objection were taken by the learned trial Judge.
In a reserved ruling, delivered on the 26/06/96 the leaned trial Judge held thus:
“I therefore hold that the action of the Plaintiffs/Respondents in instituting the action is incompetent. I hold that this suit is incompetent and premature. It is hereby ordered that the entire action be and is hereby struck out …”
Aggrieved by the said ruling, the Appellants approached this Court and filed a notice of appeal containing two grounds. The grounds shorn of their particulars are.
“GROUND ONE
The learned trial Judge erred in law when he held that the Appellants ought to have waited for the 3rd Defendant to exercise his statutory duty before instituting the said suit.
GROUND TWO
The learned trial Judge erred in law in failing to consider the decision in Obidiegwu Onyesoh v. Christopher Nnebedum & 3 Ors (1992) 3 SCNJ p.129 at 148 where the supreme court confirmed that a – suit or order can be brought or made before the recognition or installation of an Eze in order to preserve the Res. (i.e. the vacant chieftaincy stool).
From the above two grounds of appeal, learned Counsel distilled two issues for determination as follows:
“(a) was it proper or correct for the court below to hold that the Plaintiffs should have waited for the 3rd Defendant to exercise his power as conferred on him by the Traditional Rulers and Autonomous Communities Edict No. 8 of 1991 before instituting the said suit? In other words does the Traditional Rulers and Autonomous Communities Edict No. 8 of 1991, Imo State applicable in Abia State provide any condition precedent to the assumption of jurisdiction by the court over suits relating to Traditional Rulers and Chieftaincy Title disputes?
(b) Whether the Traditional Rulers and Autonomous Communities Edict No. 8 of 1991 Imo State applicable in Abia State derogate from the power of the High Court (ousting the jurisdiction of the High Court) to entertain suits in view of Section 6 (6) (b) and Section 236 (1) of the Constitution of the Federal Republic of Nigeria 1979?”
Learned Counsel for the 1st Respondent formulated a lone issue for determination which reads thus:
“Whether the trial Court was wrong to have struck out the case at the stage it did since there was a challenge to the jurisdiction of the Court to try same.”
For their part, learned Counsel for 3rd and 4th Respondents formulated one issue for determination as follows:
“Whether the suit, at least in relation to the 3rd and 4th Respondents, was premature.”‘
The brief itself was deemed to have been properly filed and served via a motion for extension of time which was granted on 1st February, 2001.
It is instructive to note that the 2nd Respondent on record Ukwa East Local Government did not file any brief in this appeal.
In accordance with rules of this Court, briefs were filed and exchanged. On the 21st day of January, 2009 when the appeal came before us for hearing, learned Counsel adopted their briefs of argument. K. C. Nwufo who appeared for the Appellants adopted his brief dated 3rd of July, 1998 but filed on 13th of August, 1998. He urged us to allow the appeal. Mr. Okoroafor who held the brief of Mr. Aguma for the 1st Respondent adopted the brief of the said Respondent dated 20th January, 2001 and filed on 21st February, 2001 as their argument in this appeal and urged us to dismiss the application. Similarly, Mr. Amaechi adopted his brief filed on 25th January, 2001 which was deemed filed on 1st February,2001 and he too urged us to dismiss the appeal as lacking in merit.
Now, before I delve into considering the issues for determination, let me say that I have care-fully examined them (issues) and I agree that they aptly cover the two grounds upon which the Appellants are appealing the judgment of the trial Court but I am of the view that the lone issue formulated by the learned Counsel for the 3rd and 4th Respondents is more apt, precise and succinct and I adopt same as the issue calling for determination in this appeal.
Learned Counsel for the Appellant in a brief settled by K.C. Nwufo, Esq urged us to hold that Edict No. 8 of 1991, Imo State applicable to Abia State did not either expressly or impliedly oust the jurisdiction of the High Court to entertain the suit in contention nor did it provide any condition precedent to the assumption of jurisdiction by the High Court over suits relating to Traditional Rulers and Chieftaincy Titles.
It is the submission of the learned Counsel that by virtue of Section 6 (6) and 236(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, the High Court has jurisdiction to entertain the suit in contention without any precondition. The learned trial Judge, he went on was not right to have relied on Section 8, 9 and 28 of Edict No. 8 of 1991 to hold that the Plaintiffs/Appellants ought to have waited for the 3rd Defendant to exercise his statutory duties before instituting the suit in question. It is his further submission that the trial Judge was in error to have held that the action was incompetent and premature. The failure to await the exercise of the 3rd Defendant’s said statutory powers prior to instituting the action cannot render same to be premature and incompetent learned counsel opined.
Learned Counsel contended that the Defendants’ contention and the decision of the learned trial Judge that the exercise of the statutory duties by the 3rd Defendant/Respondent is a condition precedent to the exercise of a right to file the action by the Plaintiffs/Appellants is wrong and unconstitutional as it seeks to circumscribe the powers of the High court under Section 236(1) of the constitution of the Federal Republic of Nigeria.
It is the contention of the learned Counsel that the Edict No. 8 of 1991 aforesaid is an inferior law to the 1979 Constitution of the Federal republic of Nigeria and any of its provisions that is inconsistent with the provision of the 1979 Constitution is null and void to the extent of that inconsistency.
Learned Counsel submitted that tire condition precedent to the exercise of a right to file an action as contained in Edict No. 8 of 1991 aforesaid is inconsistent to Section 6(6), 42 and 236 of the 1979 Constitution of the Federal Republic of Nigeria and to that extent, it is therefore void and of no effect. For this submission, learned Counsel relied on the cases of Chief Mark Olugbemi Obada & 2 Ors v Military Governor of Kwara Sate & 2 Ors (1990) 6 NWLR (Pt. 157) p. 482 at 496 paragraphs G – H and Chief Eugene Offor v Chief S.C. Osagie II & 2 Ors (1998) 1 SCNJ p. 122 at 128 – 129.
In the light of the foregoing submissions, we were urged to hold that the learned trial Judge was wrong to strike out the suit on the misconceived ground that not having awaited the exercise of the 3rd Defendant’s statutory power under the Edict has rendered same incompetent and premature. There was no valid condition precedent to be fulfilled before instituting the said suit. We were also urged to allow the appeal, set aside the decision of the Court below and remit the case for trial on its merit before another Judge.
On the other hand, learned Counsel for the 1st Respondent submitted that the issue of jurisdiction being of paramount importance, can be raised at any stage of the proceeding and whenever it is raised, the Court before which it is raised is duty bound to ascertain whether or not it has jurisdiction to try the suit.
It is the contention of the learned Counsel that the ground on which the lower Court rested its reasoning for striking out the suit is very narrow, i.e. that the action of the Plaintiffs in instituting the action is incompetent and premature in that the 3rd Respondent had not exercised his statutory powers of Recognition (of the 1st Respondent as an Eze or Traditional Ruler) as envisaged under Section 9 of Edict No. 8 of 1991 (of Abia State i.e. Traditional Rulers and Autonomous Communities Edict).
The Appellants in their writ of summons, prayed inter alia for:
“… an injunction restraining the 3rd and 4th Defendants, their servants, agents and privies or otherwise whosoever from accepting or recognizing the 1st Defendant as the Eze elect or Eze of the Ikwueke Autonomous Community.”
It is the contention of the learned counsel that the above claim is the pivot of this appeal. The 3rd and 4th Respondents, filed the application challenging the court’s power to try the case as the prayer, challenges the exercise of statutory power of the 3rd Respondent which had not yet been exercised. Learned Counsel then posed this question that when does the exercise of the statutory power of Recognition of a Traditional Ruler by the Military Administrator of Abia State begin under the Abia State Edict No. 8 of 1991?
To answer this question, learned Counsel further contended that recourse had to be made to the provisions of the Edict Abia State Edict No. 8 of 1991. According to ths Edict, learned Counsel went on, it is the function of the concerned community (in this case, Ikwueke Autonomous Community) to select their Eze-elect and then, present him to the Chief Executive of the Local Government (in this case, Ukwa East Local Government Area) or any other person appointed by the Governor/Military Administrator (in this case, 3rd Respondent) in that behalf.
Section 9 of the Edict stipulates that after due compliance, the Military Administrator may by instrument (in accordance with the provisions of this Edict) RECOGNIZE SUCH A PERSON AS THE EZE OF THE AUTONOMOUS COMMUNITY (Underlining supplied for emphasis).
Learned Counsel posits that the exercise of the statutory powers of recognition vested in the Military Administrator begins when and only when the Traditional Ruler/Eze of an Autonomous Community is presented to the Military Administrator. He posits further that until this is done, there can be no challenge to this exercise which is also, discretionary at least by the use of the word MAY in Section 9 of the Edict. He referred us to the cases of Merchant Bank Limited v The Federal Minister of Finance (1961) All NLR 598, Attorney-General of Anambra State v Okafor (1992) 2 NWLR (Pt. 224) 396 at 401 to buttress his submission on this Point.
It is the contention of the learned Counsel that from the affidavit evidence adduced by both sides, it is obvious that there had been no presentation of the 1st Respondent to the 3rd Respondent for purposes of recognition as the Eze of Ikwueze Autonomous community nor can it be said that the 3rd Respondent had exercised his statutory powers of recognition and this being the case, learned Counsel went on, can it be said that it will be right for the courts to pry into the exercise of such discretionary statutory powers?
Learned Counsel submitted that under Sections 4, 5 and 6 of the 1979 Constitution, the Legislature, the Judiciary and the Executive have been vested with separate and distinct powers which they exercise as equal partners without any infringement on the power of the other. It will be erroneous as Appellants’ Counsel tried to argue in his brief that the learned trial Judge erred by relying on Sections 8 and 9 of the aforesaid Edict to strike out the suit as there had been no recognition. Equally spurious, learned counsel further submitted is the contention by the Appellants that the learned trial Judge erred by holding that there ought to be a satisfaction of a’ condition precedent (Recognition) before institution of a suit against the Military Administrator of Abia State. Learned Counsel referred us to the case of Governor of Lagos State v Chief Ojukwu (1986) All NLR 233 at 234, wherein the Supreme Court held that the Executive, Legislature and Judiciary are equal partners in progress in the running of a successful government and should not exist in sabotage of the powers of the other or else there is chaos.
Learned Counsel urged us to answer the issue canvassed in the negative. That is to say the trial Court was right when it held that ‘the action of Plaintiffs in instituting the action is incompetent and premature’. We were also urged to dismiss it (appeal) as lacking in merit.
For his part, learned Counsel for the 3rd and 4th Respondent contended that the basis upon which the learned trial Judge struck out the suit is narrow. It is that having not yet exercised his undoubted power to recognize any person as a Traditional Ruler, under the Traditional Rulers and Autonomous communities Edict, 1991 (the Military Administrator cannot be sued. In other words, learned Counsel further contended that the suit of the Plaintiffs/Appellants which tried to stop the Military Administrator from exercising his statutory functions was premature and precipitate.
It is the contention of the learned Counsel that the question whether a donee of a statutory power can be prevented by the Court from exercising the statutory functions raises a fundamental question of division of governmental powers. It strikes at the root of the doctrine of separation of powers. Learned Counsel further contended that it is no longer arguable that the doctrine of separation of powers is the pivot upon which our democratic and indeed militocratic governance is hoisted.
Learned Counsel posed these question that (1) was the dispute ripe for adjudication? (2) was it not premature at the stage where the Military Governor had not recognized any body as “EZE” of the area in dispute?
Learned Counsel argued that the writ of summons at pages 4 – 5 of the record clearly shows that the Plaintiffs sought the Court to grant a perpetual injunction against the Plaintiffs sought the Court from granting recognition to the 1st Defendant. In other words’ it was filled to prevent the Military Governor from exercising his statutory Power under the Edict to recognise or de-recognise. We were urged to dismiss the application as lacking in merit.
A good starting point in this appeal is the case of Lakami v. A.G. (Western Nigeria) 1971) 1 WLR 201 at 218 where the doctrine of separation of power was extensively discussed and some profound pronouncements were made on the said subject matter. The apex court said that even in the Military Governments the doctrine of separation of powers remains inviolate. The Court held that:
“We must here revert again to the doctrine of separation of powers’ which the- learned Attorney-General himself did not dispute is still the structure of our system of government. In the absence of anything to the contrary it has-to be admitted that the structure of our Constitution is based on the separation of powers – the Legislature, the Executive and Judiciary….”
It is instructive to state that our Courts have undoubted judicial tradition of exercising considerable self-restraint in usurping plainly executive functions or else preventing the executive arm from exercising its functions. It however, has preferred to exercise a corrective or review role in relation to executive acts. In the case of Merchant Bank Ltd. v. Federal Minister of Finance (1961) All NCR 598 at 603, the apex court held thus:
“The powers under section 14 of the ordinance are administrative powers which are properly vested in the Minister, and not the courts to exercise those powers. In those circumstances, the functions of the Courts begin if and when it is alleged (which is not the case here) that the administrative powers have not been exercised in accordance with the ordinance. It is these functions of the Courts which are protected by Constitution.” (underlining supplied for emphasis).
This attitude of judicial self restraint was restated by the Supreme Court in the case of Attorney-General Anambra State v Okafor (1992) 2 NWLR (Pt.224) 396 when the Court per Omo, JSC said:
“The courts in conclusion can therefore in proper circumstances declare a recognition illegal after the Governor has exercised his primary powers of recognition. Where it is exercised arbitrarily and without recourse to procedure provided by enabling statute, his exercised power can be challenged.” (Underlining supplied by me).
Let me pause a little and say that to prevent the executive from exercising his statutory functions will strike a dangerous blow on the doctrine of separation of powers. It will in’ my view amount to judicial usurpation of executive functions. I am also of the view that at the stage when the Military Administrator has neither recognized nor derecognized anybody there can be no justiciable dispute between the Plaintiffs/Appellants and the Government of Abia State under section 6(6) of the 1979 Constitution.
It is pertinent at this juncture to state that the learned Counsel for the Appellants has made heavy weather of the supremacy of the Constitution over the Edict No. 8 of 1991 and further submitted that the aforesaid Edict is inconsistent with Section 6(6), 42 and 236 of the 1999 Constitution citing the cases of Bada & Ors. v. Military Governor of Kwara State and Offor v. Osagie (supra) to buttress his submission. With all respect due to the learned Counsel the issue at stake in this appeal is not whether or not the provisions of the Constitution override that of a Edict. Far from it. The issue at stake as can be gleaned from the affidavit evidence and the submissions of the learned Counsel is whether at the time the action of the Plaintiffs/Appellants was instituted there was any coursed of actino.
The question that must be asked and answered at this stage is whether it would be proper for the Court to restrain the Military Government from exercising his executive functions in the absence of an allegation that he has acted or attempted to act contrary to the Edict or has offended or threatened to offend the Edict or has acted or threatened to act contrary to the principle of the general law. I am of the considered view that any other claim which purports to prevent the Administrator from exercising his power must be condemned as premature and a fetter on the doctrine of separation of powers. This being the case, the question posed a short while ago must be answered in the negative’ Needless to say all the cases referred to by the learned counsel for the Appellants, i.e. Offor v. Osagie, Bada & 2 Ors v Military Governor of Kwara State (supra) and Kanada v Governor of Kaduna State (1986) 4 NWLR (Pt.35) p.36 are not apposite to the facts of the case in hand and as such cannot be called in aid of the Appellants’ case.
The law is now trite that the competence of a Court to adjudicate over a matter depends on the followings:
“(i) It is properly constituted as regards members and qualification of the members of the bench and no member is disqualified for one reason or another; and
(2) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(3) The case comes before the Court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction. See the cases of Shell Pet. Dev. Co. Ltd. v. Isah (1997) 6 NWLR (Pt.508) 236 at p. 246 per Katsina-Alu, JCA (as he then was), PDP v. INEC (1999) 11 NWLR (Pt. 626) 2000 at p. 241 and Madukolu & Ors. v. Nkemdilim (1962) All NLR (Reprint) 581 at pp. 589 – 590.
From the avalanche of decided cases on this issue of jurisdiction some of which have been set out above. I am minded to say at the risk of being repetitive that the learned trial judge has even no jurisdiction to hear the case in hand because there is a condition precedent to the exercise of jurisdiction which had not been fulfilled, i.e. the recognition or otherwise of an EZE elect by the 3rd Respondent.
In the light of the foregoing and the fact that Section 6(6) of the Constitution of Nigeria, 1979 does not permit a suit where there is no justiceable dispute between the parties, the suit was not ripe for institution and the sole issue for determination is resolved in favour of the Respondents and against the Appellants.
In conclusion, and in the light of that all that has been said this appeal is completely devoid of any merit and must be and is accordingly dismissed with N30,000.00 costs to the 1st Respondent.
Other Citations: (2009)LCN/3180(CA)
