Nze J.u. Nwanara & Ors V. Chief I.u. Okeahialam & Ors (1998)
LawGlobal-Hub Lead Judgment Report
UWAIFO, J.C.A.
The plaintiffs (now appellants) commenced this action at the High Court. Owerri by writ of summons on 4 November, 1993. In it, as also contained in the statement of claim they subsequently filed on 30 November, 1993, they sought four reliefs against the defendants (now respondents). I shall henceforth refer to the parties as appellants and respondents as appropriate.
The first relief seeks a declaration that the recognition given to the 1st respondent (Chief I.U. Okeahialam) as the Traditional Ruler of Onicha Amairi Autonomous Community in Ezinihitte Local Government Area was obtained by fraud and therefore illegal and a nullity being contrary to the relevant provisions of the (Traditional Rulers and Autonomous Communities) Law. The second relief seeks an order of court nullifying that recognition. Third and fourth reliefs ask for injunctive orders restraining the respondents from holding out the 1st respondent as such Traditional Ruler and also restraining him from so parading himself.
The appellants pleaded in their statement of claim, among other facts, that the Traditional Ruler, by the constitution of the community, must be identified, selected. installed and presented by 10 persons from each village of the community and members of the Ndi Nze Council which procedure is to be supervised by any of the existing cultural organisations of the people, such as Onicha Si. But they averred that Onicha Si having been mutually dissolved the Onicha Town Union was formed to take its place.
The 1st and 2nd respondents were sued for themselves and on behalf of the Onicha Town Union the 2nd respondent being the Secretary General of The Union.
It is said that it is the function of the Onicha Town Union to organise the selection of a successor to a late Traditional Ruler (the late one being Eze J.H. Onyenebo).
A further averment is that by section 41 of the constitution of the community, it is the responsibility of the Ndi Eze Onicha (or Council) to organist the installation of a Traditional Ruler.
The appellants’ complaint is that they became aware that the 2nd respondent conspired with others to pervert the constitution, first, by illegally amending it to impose a condition of a non-refundable levy of N20.000.00 on any person wishing to aspire to the traditional rulership, and secondly, by contriving to return unopposed the 1st respondent who paid the N20.000.00 whilst there was still raging a stiff opposition to that levy, and real conflict and confusion. Then they alleged that they were surprised when the 1st respondent began to flaunt a letter signed by the Deputy Governor of Imo State dated 28 September, 1993, informing the 1st respondent that the Governor of the State had accorded him recognition as the Traditional Ruler of Onicha Amairi Autonomous Community. They avert the 1st respondent was never identified, selected, appointed and installed by the community according to the custom of the people and presented for recognition according to the Law.
The respondents in their statement of defence pleaded in a rather prolix form a number of facts and issues, some of which they raised as preliminary points and thereafter argued in a later motion they brought. The appellants filed a reply to the respondents’ said statement of defence. It was after this, if I may keep the record straight, that the respondents brought their said notice or motion on 25 May, 1994.
In the said motion, the respondents prayed that the trial court should dismiss or in the alternative strike out the appellants’ suit on the following grounds which I prefer to reproduce:
“1. The court has no jurisdiction to entertain this suit, the suit having been instituted in gross violation and or contravention of section 25 of the Traditional Rulers and Autonomous Communities Law No. 11 of 1981.
- The plaintiffs have no locus standi to institute this action.
- The suit is tainted with a fundamental vice of improper joinder and misjoinder of parties.
- The 1st and 2nd plaintiffs as expressed on the statement of claim represent the Council of Ndi Eze which is a non-juristic person that cannot sue nor be sued.
- The plaintiffs as expressed on the statement of claim are also defendants in the suit by virtue of the fact that 1st and 2nd defendants are sued in a representative capacity on behalf of members of Onicha Town Union which Union expressly and impliedly include all the plaintiffs and ipso facto make them defendants in this suit.
- Reliefs a and b of the plaintiff’s claim are a duplication and constitute legal misnormer (sic) and ipso facto outs (sic) the jurisdiction of the court to grant the said reliefs.”
The learned trial Judge (Maranzu, J.) on 28 July, 1994, on the strength of the said notice of motion argued before him, struck out the appellants’ suit on the basis that the High Court lacked jurisdiction to entertain it. I shall refer in more detail later in this judgment to the reasons and circumstances he relied on for so holding. The appellants have complained against that decision and have requested this court to determine the appeal arising therefrom by resolving two issues. namely:”( I) Whether the provisions of section 25 of Law No. 11 of 1981 apply to the present suit since none of the reliefs is predicated on any claim of an infringement of the rules of natural justice. (2) Whether the alleged defect in the Statement of the panics in the suit, if it existed, was not amendable.”
I have looked at the first of the two grounds of appeal filed by the appellants along with the three issues framed therefrom by the 1st and 2nd respondents and the four issues by the 3rd and 4th respondents. I am of the view that issue I framed respectively (to the same effect) by the 1st and 2nd respondents and the 3rd and 4th respondents. issue 2 also framed respectively (to the same effect) by the 1st and 2nd respondents and the 3rd and 4th respondents, and issue 2 framed by the appellants (as may be slightly reframed) are appropriate for the purpose of this appeal. I shall now set the issues for determination out as just indicated above:
(a) Whether the appellants’ suit was statute-barred having been instituted outside the statutory period allowed by the provisions of section 25 of the Traditional Rulers and Autonomous Communities Law No. 11 of 1981.
(b) Whether section 25 of the said Law No. 11 of 1981 is inconsistent with the relevant provisions of the 1979 Constitution regarding the jurisdiction of the High Court.
(c) Whether there is an implied misjoinder of the plaintiffs (now appellants) as forming part of the representation by 1st and 2nd defendants in the way the representative capacity of the said 1st and
2nd defendants (now 1st and 2nd respondents) was stated on the suit, and if so whether it is a mere technicality or irregularity which can be amended.
The 1st and 2nd respondents argued before the learned trial Judge that by virtue of section 25 of the Law No. 11 of 1981, the action should have been brought within 21 days from the date the Governor gave recognition to the 1st respondent as Traditional Ruler. The appellants contended that in as much as that section tended to oust the jurisdiction of the court, it was not binding on the appellants and was a nullity. The learned trial Judge upheld the respondents’ argument. He said:
“Since it is not disputed that this suit was filed fourteen days after the mandatory period of 21 days from the date of recognition as per Exhibit ‘A’ within which one is allowed to protest or challenge the recognition as per section 25 of Law No. 11of 1981 it is my view and I so hold that the suit is incompetent and on this ground alone, this court would decline jurisdiction and strike out the suit.”
The appellants have repeated the same argument before this court, citing decided cases they cited to the lower court, particularly Mustapha v. Governor of Lagos State (1987) 2 NWLR (Pt. 58) 539, by the Supreme Court. Both sets of respondents, relying on the principle that action must be brought within a statutory period allowed by law and citing cases thereon, e.g. Fred Egbe v. Adefarasin (1987) 1 NWLR (Pt. 47) 1, submitted that the appellants’ suit could not be saved even if it had merit.
Section 25 of Law No. 11 of 1981 which the respondents relied on, and the lower court held as constituting a time bar to the appellants’ suit, reads:
“25. Where the Governor has accorded recognition to any person as an Eze, such recognition shall be final:
Provided that where any interested party from within the autonomous community feels that in the exercise of such recognition of an Eze, the rules of natural justice have been contravened, then that party may have within 21 days of the recognition, the right of appeal to the High Court for review of the recognition, and the court may make such order as it finds fit for peace, order and good government.”
There is, in my view, a real problem with the effect of the above-quoted provision of the Law No. 11 of 1981. There is, of course, no dispute that the said Law makes the Governor the authority to give recognition to a person as the Eze (or Traditional Ruler) of an autonomous community. But the same Law also says that this is subject to the confirmation of the Imo State House of Assembly. This can be found in section 7 which provides:
“7 Where the Eze of an autonomous community is presented to the Governor as provided under sections 4 and 5 (this should really read sections 5 and 61 of this Law, the Governor may, by an instrument (in accordance with the provisions of this Law) recognise such a person as the Eze of the autonomous community, subject to the confirmation of Imo State House of Assembly.”
Section 5 in particular contains very copious conditions, a few of which may be mentioned. An autonomous community shall (successfully) identify, select, appoint and install its Eze before presenting him to the Government. The Governor shall not recognise any person as the Eze of an autonomous community unless he is satisfied that such a person was identified, selected, appointed and installed in accordance with the customary law of the autonomous community concerned and the person has the broad or popular support of the autonomous community. In the case of a rotatory system, the order of rotation among the component sections must be maintained according to their constitution; and in the case of hereditary system the choice is from the ruling house. Furthermore, such a person to be recognised as the Eze must not be under eighteen years of age; is not a full-time public servant; is ordinarily resident within the area of the autonomous community; has not been convicted of a capital offence or any offence involving fraud or if so convicted has not received a free pardon; has not been lawfully declared a lunatic; is not a frontline politician or party man or a religious fanatic.
It seems obvious from section 7 that the recognition of an Eze by the Governor cannot stand if it fails to receive the confirmation of the Imo State House of Assembly.
Secondly, the Governor cannot recognise a person as an Eze in flagrant contravention of section 5 of the Law. It therefore follows that section 25 tends to confer on the Governor the authority to transgress the Law under which he is to operate if he were to decide to use his high office in a lawless and pernicious manner. The proviso to section 25 seems to create a sinister exception that such recognition could only be challenged if the exercise of it contravened the rules of natural justice.
The rules of natural justice simply provide that a person who has a duty (legal or administrative) to take a decision which affects others (1) must hear all the parties concerned before taking the decision and (ii) must not have an interest in the subject-matter one way or another as to make him a judge in his own cause.
These rules of natural justice are, in my view, quite feeble and too restrictive in nature to be capable or getting a Governor to act within the Law No. 11 of 1981 as provided in sections 5, 6 and 7 if section 25 were to be given its illogical meaning that the recognition accorded by him to any person as an Eze was final.
I think the only limited meaning that may be (generously) given to the idea of finality in the present case is in regard to a situation where a functionary is conferred with the duty or authority to make an order or a declaration or to give recognition to a person in a chieftaincy title. The duty cannot be performed or the authority exercised by the court by way of a declaration or otherwise where that person failed to do so properly. What he did can only be set aside by the court in an appropriate case in its supervisory jurisdiction. The decision to be made under that duty or authority must finally be his; the court cannot take it over.
In this regard I shall refer to Eguamwense v. Amaghizemwen (1993) 9 NWLR (Pt. 315) I at 36 where Uthman Mohammed JSC observed inter alia:
“… it is crystal clear that the decision which the High Court cannot make, taking into consideration the provisions of s. 22 of Traditional Rulers and Chiefs Edict No. 16 of 1979. is a declaration that the respondent is entitled to be conferred with the chieftaincy title of Amaghizemwen of Benin. If the High Court makes such a decision it would amount to having two parallel and inconsistent findings, one by the prescribed authority (The Oba of Benin) and the other by the High Court.
However … the High Court was asked to declare that the prescribed authority (Oba of Benin) acted contrary to Benin native law and custom when the title of Amaghizemwen was conferred on the appellant. The respondent, in claim (c) of the suit, prayed for an order of perpetual injunction. These two claims fail within the supervisory jurisdiction of the High Court over decisions of the prescribed authority. It is my respectful view that the High Court has jurisdiction to determine them. All the decided authorities referred to, in this appeal disclose a settled law that unless the jurisdiction is clearly excluded the High Court has power to interfere with the decisions of [the] statutory tribunals. It is also settled law that an aggrieved party can invoke the supervisory jurisdiction of the High Court by way of declaration to apply for such decisions to be set aside.”
The jurisdiction of the High Court to so intervene under its supervisory authority is conferred by sections 6 and 236 of the 1979 Constitution. The provisions of section 25 of the Law No. 11 of 1981 in question are in conflict with those sections of the Constitution and therefore are unconstitutional and without effect. In the circumstances, the action of the appellants was not statute-barred.
In my view, section 25 is a statutory anathema in every sense. It even talks of “the right of appeal to the High Court for review of the recognition, and the court may make such order as it finds fit for peace, order and good government.” In the first place, a proper complaint against such recognition is not by way of appeal but by action begun by writ of summons or sometimes by certiorari proceedings. Secondly, there is no order the High Court can make in that situation which it “finds fit for peace, order and good government” but simply an order setting aside, in effect, the improper recognition. Thirdly, Apart from being unconstitutional, section 25, as already earlier indicated, is in conflict with section 7 or the same Law which makes the recognition given by the Governor to a person as an Eze subject to confirmation of the Imo State House of Assembly. It would therefore have been presumptuous to have regarded his decision conferring the said recognition as final.
There is the issue whether because the 1st and 2nd appellants are considered to be members of Onicha Town Union by virtue of their being taxable male adults in Onicha Amairi, they could not competently sue the Union without excepting themselves therefrom on the writ of summons and statement of claim. This was a point canvassed by the 1st and 2nd respondents before the lower court and also in this court.
On the other hand, the 1st and 2nd appellants commended that there was no evidence that the 1st and 2nd appellants were members of the said Onicha Town Union so that the question that they ought specifically to have excluded themselves from the representative capacity in which the Union was sued would not arise. Alternatively, they submitted that even if they were to be regarded as members of that Union, the court processes could be appropriately amended to show they were excluding themselves from being among the defendants in the suit while at the same time being among the plaintiffs.
The learned trial Judge in his resolution of that issue, said inter alia:
“The averment in paragraph I of the statement of claim that plaintiffs and 1st and 2nd defendants are indigenes clearly shows expressly or by reasonable implication that they are all members of Onicha Town Union which has also a chieftaincy constitution. It follows therefore that this suit is defective for improper joinder of parties as the plaintiffs are also defendants in the same suit. Learned counsel for the plaintiffs/respondents realised this when he averred in paragraph 8 of his counter-affidavit filed in court on 27/5/94 in opposition to this motion thus:
‘8. That the defect alleged in paragraph 12 is amendable.’
But inspite (sic) of that averment no attempt was made by plaintiffs’ counsel to amend the capacity of the parties until during his reply to the submissions of applicants’ counsel. It was too late in the day to make the application which was apparently intended to prejudice the applicants.”
He then said that the misjoinder was improper and went further to add that the suit was “incompetent for misjoinder of parties”.
I cannot help saying, with due respect, that the learned trial Judge was in error.
It is plain from the facts of this case that the 1st and 2nd appellants representing themselves and the Onicha Amairi Autonomous Community Council of Ndi Nze are challenging the Onicha Town Union in the manner they allegedly altered the constitution of the community and made it possible fur the 1st respondent to be given recognition as the Traditional Ruler of the community. Indeed, it is averred that the 1st and 2nd respondents manipulated the situation under the aegis of the Onicha Town Union against the wishes and interests of the Community Council of Ndi Nze which the 1st and 2nd appellants represent in this suit.
I think it is common sense that the 1st and 2nd appellants thereby excepted themselves from the interest being defended by the said Onicha Town Union. Parties can only sue or defend in a representative capacity in a suit in which they have the same or common interest respectively. The omission by the 1st and 2nd appellants to expressly except themselves in this suit from the Union by indicating this on the writ of summons and the statement of claim (if that was necessary) is a mere technicality which cannot be permitted to stand in the way of doing substantial justice: see Amadike v. Govermor State (1993) 2 NWLR (Pt. 275) 302 at 316. In my view, it is like pressing that if a member of a community or unregistered association in his personal capacity sues that community or association in its representative capacity, unless he specifically inserts on the writ of summons something to the effect that the defendant community or association excludes himself, his action is incompetent.
That will no doubt be tantamount to pressing a ridiculous point.
I think it must be taken that when the real representative capacity in which an action brought in a personal capacity by a member or members of a community or association against that community or association is expected to be defended is reasonably clear or inferable in the absence of that member or members so expressly excepting themselves from the defendant community or association on the writ of summons, that omission (if it may be so described),can either be ignored by the court, or permitted to be amended at any stage should that be considered necessary. Hence, it is aptly said that the rule regarding representative proceedings is a rule or convenience which requires a flexible and broad approach and not treated as being a rigid matter of principle: see Anatogu v. Attorney-General of East Central State of Nigeria (1976) 10 N.S.C.C. 679 at 685-686; Obiode v. Orewere (1982) 12 N.S.C.C. 44 at 47.I am satisfied that the learned trial Judge did not justifiably strike out the appellants’ suit. I hold that this appeal has merit. It is accordingly allowed and the striking out order of 28 July, 1994 is set aside. It is ordered that the suit be relisted for hearing before another Judge and that the parties be at liberty to amend their processes as maybe considered necessary and proper. I award costs of N2,000.00 against each set of respondents in favour of the 1st and 2nd appellants.
Other Citations: (1998)LCN/0469(CA)
