The Military Administrator, Akwa Ibom State & Ors V. Chief Godfrey Davies Obong (2000)

LawGlobal-Hub Lead Judgment Report

OPENE, J.C.A. 

In the High Court of Akwa Ibom State holden at Ikot Abasi, The respondent as plaintiff claimed against the defendants/appellants jointly and severally as follows:-

“1. A declaration that the village headship of Ikot Akata village in Mkpat Enin Local Government Area is traditionally rotatory and never hereditory/confined to one Ekpuk.

2. A declaration that the plaintiff was, having regard to the customs, traditions and usages of Ikot Akata village, validly selected, presented and recommended by the Mkpat Enin Traditional Rulers Council to the 3rd and 1st defendants for certification as per their minutes dated 29th April, 1993 and 14th May, 1993 and that the 3rd defendant had no legal basis for suppressing the aforesaid recommendation and putting up a case for the 4th defendant.
3. A declaration that the attempt of the 3rd defendant to reopen a fresh enquiry on the matter by the State Council of Chiefs when there was no further dispute on the matter is in breach of the provisions of the Traditional Rulers Edict, 1990.
4. An order of Injunction restraining the 4th defendant from parading or holding himself out as the village Head of Ikot Akata village in Mkpat Enin Local Government Area and also restraining the 3rd and 1st defendants from according the 4th defendant any Certificate of recognition.”

The plaintiff/respondent filed his statement of claim and the 4th defendant/appellant had also filed his statement of defence while the 1st- 3rd defendants/appellants have not filed their statement of defence when the plaintiff/respondent brought a motion under Order 24 rule 2 of Akwa Ibom State High Court (Civil Procedure) Rules, 1989 praying the court as follows:-

“Motion on notice

Under Order 24 Rule 2 of the High Court

(Civil Procedure) Rules:

TAKE NOTICE that this Honourable court will be moved on Wednesday the 15th day of May, 1996 at the hour of 9 o’clock in the forenoon or so soon thereafter as the plaintiff/applicant or counsel on his behalf can be heard for an order:-

1. Setting down for hearing the following preliminary points of law:

(1) The 4th defendant on record has no locus standi to defend this action; and

(2) The 4th defendant has no defence to this action or reasonable defence to this motion having regard to the provisions of S. 13(1) (a) of Akwa Ibom State Traditional Rulers Edict No. 15 of 1990.

2. Any further or other order(s) as the court may deem fit to make in the circumstances.”

There is a ten paragraph affidavit sworn to by plaintiff/respondent in support of the motion and there are also many documents exhibited in support of the application.

The 4th defendant/appellant filed a counter -affidavit opposing the application…

The plaintiff/respondent thereupon filed a further affidavit and there is also a further counter- affidavit.

After hearing the arguments by the counsel of both parties, in a reserved ruling delivered on 7th of August, 1997, the learned trial Judge Okpo J. gave judgment in favour of the plaintiff/respondent in which he granted all the four reliefs sought by the plaintiff/respondent.

The appellants aggrieved and dissatisfied with that ruling have appealed to this court. The 1st – 3rd defendants/appellants filed their notice of appeal while the 4th defendant/appellant also filed his own notice of appeal. Briefs of argument were filed by the parties through their counsel.

In the 1st- 3rd appellants’ brief, 4 issues were identified for the determination of the court and they are:-

“1. Whether in the circumstances of this case the plaintiff/respondent was entitled to judgment by virtue of Order 24 rule 3 of the Akwa Ibom State (Civil Procedure) Rules, 1989.

2. Whether in a chieftaincy case the plaintiff/respondent was entitled to judgment without leading evidence to prove the custom, tradition and usages of his community upon which his claim was based.
3. Granted, but not conceding that the 4th defendant/appellant has no locus standi to defend the action whether the plaintiff/respondent was there entitled to judgment against the 1st – 3rd defendant/appellant without actually proving his case.
4. Whether failure by the plaintiff/respondent to serve the requisite statutory notice of intention to sue on the 1st – 3rd defendants/appellants before filing suit No.HAB/70/94 does not render the entire proceedings at the lower court a nullity.”

The 4th appellant in his brief of argument formulated five issues for determination by the court and they read as follows:-

“1. Whether the High Court was right in relying on Order 24 rule 3 of the Akwa Ibom State High Court (Civil Procedure) Rules, 1989 to give judgment in favour of the plaintiff/respondent upon a motion under Order 24 rule 2 of the said Rules, especially when the plaintiff did not include a prayer for judgment in his motion.

2. Whether the 4th defendant/appellant who was sued in this chieftaincy case (instituted) by the plaintiff/respondent and against whom the plaintiffs claims/reliefs directly affect, had no locus standi to defend the action.
3. Whether the plaintiff/respondent who claimed the right to a Ccand usages of Ikot Akata people, was entitled to judgment (on a motion under Order 24 rule 2) without strict proof of the alleged tradition, custom and usages.
4. Whether the High Court was right in invoking the provisions of S.13 (1) of the Akwa Ibom State Traditional Rulers Edict. 1990 against the 4th defendant/appellant without proper proof by credible and admissible evidence that he comes within the restrictions thereby provided; and
5. Whether upon the facts and circumstances of this case, the plaintiff/respondent was entitled to judgment.”

In the respondent’s brief of argument five issues were adumbrated for determination by the court and they are:-

“1. Whether in the circumstances of this case the learned trial Judge was not right to have given judgment in favour of the plaintiff/respondent by virtue of the provisions of Order 24 rules 2 and 3 of Akwa lbom State (Civil Procedure) Rules, 1989.

2. Whether the learned trial Judge was not right in invoking the provisions of S.13 (1) (a) and (c) of the Akwa Iborn State Traditional Rulers Edict, 1990 against the 4th defendant/appellant who stood disqualified by the said provision.
3. Whether in the circumstances of this case where the principal party stood disqualified and there was adequate evidence from three traditional bodies before it, the learned trial Judge was not therefore right in entering judgment in favour of the plaintiff/respondent.
4. Whether in the circumstances of this case the learned trial Judge was not entitled to enter judgment against the 1st to 3rd defendants/appellants without leading oral evidence.
5. Whether the entire proceedings in this case is a nullity on the ground that no statutory notice of intention to sue was served on the 1st to 3rd defendants/appellants before filing this suit.”

After a careful perusal at the issues formulated in the three briefs of argument, I am of the view that the issues formulated in the 1st – 3rd appellants’ brief of argument are more germane for the determination of this appeal and I will accordingly adopt them in the determination of this appeal.

The respondent and the 4th appellant are indigenes of Ikot Akata para Village in Mkpat Enin Local Government Area of Akwa Ibom State but they are from different families. They are both contesting for the vacant stool of the village headship of Ikot Akata and each of them was nominated and presented to the Village as the Village Head elect by a faction of the Kingmakers of the community.

As a result of this, the matter was referred to the Mkpat Enin Traditional Rulers Council for settlement. The council resolved the matter in the respondent’s favour but the 4th appellant was not satisfied with that decision, so he petitioned the Akwa Ibom State Council of Chiefs, the 2nd appellant who then arranged a meeting and invited the parties for a review of the dispute. The respondent refused to attend the meeting and thereupon filed this action.

In the 1st – 3rd appellants’ brief, Mr. Ekong, the learned Senior State counsel has argued that the point of law raised by the respondent was on the issue of the locus standi of the 4th appellant only and that it does not therefore concern or touch or affect the position of the 1st- 3rd appellants and that the learned trial Judge ought not have entered judgment in favour of the respondent at this stage especially against the 1st – 3rd appellants and that Order 24 rule 2 of the said rules does not empower a court to give judgment in a suit without hearing evidence of the parties, that the rule merely empowers the court after hearing arguments on the point of law raised and that if such points of law “substantially disposes of the whole action” to dismiss the case or make other orders as may be just.

He referred to:- Aina v. The Trustees of the Nigerian Railway Corporation Pension Fund (1970) 1 All NLR 281 at 282; Obiora v. Osele (1989) 1 NWLR (Pt. 97) 279; UTC (Nig.) Ltd v. Pamotei (1989) 2 NWLR (pt. 103) 244.

The learned counsel for the 4th appellant, Mr. Ekanen in the 4th appellant’s brief has argued that by the provisions of the said rules that before a court can dismiss the action or make an order as may be just, that certain conditions must be available and complied with; that the point of law set down for hearing or determination must first be expressly raised by the party’s pleadings, that it cannot be inferred from the facts stated in the pleading and that it is not required to be raised for the first time by way of motion as was done by the respondent. He submitted that the learned trial Judge came to an erroneous findings that the respondent had complied with the rule by Paragraph 2 of the statement of claim and that the respondent’s failure to raise the issue of locus standi first in his statement of claim is a fatal non-compliance with the rules which ought to have attracted dismissal of the respondent’s motion.

He also argued that the rule envisages a disposal of the point of law by the Judge who tries the cause at or after the trial or same set down for hearing and disposed of at any time before trial, that is, upon the application of either party, that the respondent’s counsel applied to lead evidence but that was not done.

It was submitted that the decision of such point of law should be such that could substantially dispose of the whole action or any distinct cause of action and that even if the point of law was properly raised in the statement of claim that it was not such as could have substantially disposed of the whole action as envisaged by Order 24 Rule 2, that the point of law merely alleged the lack of locus standi by the 4th appellant and that the respondent was still legally bound to prove his case against the 1st – 3rd appellants as he was bound to prove the custom upon which his alleged right to the chieftaincy stool was premised.

In the respondent’s brief, Dr. Essien, the learned counsel for the respondent has contended that it was the considered opinion of the learned trial Judge that a decision on the issue of locus standi of the 4th appellant substantially disposed of the whole action and of divesting the court of jurisdiction in relation to him, that the pleadings in paragraph 2 of the statement of claim raised the issue of the 4th appellant being a serving official in Mobil Oil Producing Nigeria unlimited which the 4th appellant denied in paragraph 2 of his statement of defence. It was submitted that the above pleadings had the potential of an early determination of the fortune of the case having regard to the prevailing law that application was brought to set down for hearing that preliminary point of law, that the learned trial Judge acceded to it, heard protracted argument and held that even if the 4th appellant were to be allowed to go to witness box to tell his story that he would have no defence to the action having regard to the provisions of section 13(1) (a) of Akwa Ibom State Traditional Rulers Edict, 1990 and therefore entered judgment for the respondent.

It was also submitted that Order 24 rule 2 requires a party to raise “by” his pleadings not “in” his pleadings the point of law and that the essence of the provision is that the point of law should emanate from the pleadings in order to place the other party on notice and that the point in issue emanated from the material facts in paragraph 2 of both statement of claim and statement of defence as well as the motion to set same down for hearing, that even if the said phrase is required to be expressly stated in the body at the pleadings that no failure or miscarriage of justice is occasioned on the part of the 4th appellant and also that the pith and substance of the objection appears to be deeply rooted in technicality to the detriment of substantial justice.

It was further submitted that the learned trial Judge saw no wisdom in the parties leading oral evidence because the 4th appellant was clearly disqualified from contesting as he was a serving official of Mobil and that no other oral evidence however weighty can remedy the situation, that as in this case competence or jurisdiction was raised and that since it was capable of disposing of the whole case that it was proper to have it tried first and equally convenient that evidence be by affidavit and exhibits.

He referred to:- Nwosu v. Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt. 135) 688; Nishizawa Ltd v. Jethwani (1984) 12 S.C. 234; Afolabi v. Adekunle (1983) 2 SCNLR 141, (1983) 8 S.C. 98.

Order 24 rules 2 and 3 of Akwa Ibom High Court (Civil Procedure) Rules, 1989, provide as follows:-

Rule 2:- “Any party shall be entitled to raise by his pleadings any point of law, and any point so raised shall be disposed of by the Judge who tries the cause at or after the trial.”

Rule 3:- “If in the opinion of the court or a Judge the decision of such point of law substantially disposes of the whole action or of any distinct cause of action, ground of defence, set off, counter-claim or reply therein, the court or Judge may there upon dismiss the action or make such other order therein as may be just.”

It can be seen from the provisions of Order 24 r. 2 that, the point of law shall be raised in the pleadings which in this case are the statement of claim or the statement of defence as the case may be. In the instant case, the statement of claim is at pages 34 – 42 of the records and the relevant section is at paragraph 2 and it reads:-

“Paragraph 2:- The 1st defendant is the Chief Executive of Akwa Ibom State Government and according official recognition to traditional Rules is part of his executive functions; the 2nd defendant is a body set up by statute to deal with traditional matters and is presided over by one of the paramount Rulers of Akwa Ibom State; the 3rd defendant is an officer in the 1st defendant’s office and is in charge of chieftaincy matters in the State while the 4th defendant ordinarily resides at Ikot Akata Village in Ikpa Ibom clan in Mkpat Enin Local Government Area and at all material time to this action, is a serving officer in the Mechanical Department of Mobil Producing Nigeria Unlimited.”

In reply to this the 4th defendant in paragraphs 1, 2 and 3 of this statement of defence stated as follows:-

“Paragraph 1:- The 4th defendant denies the averments in paragraph 1 of the statement of claim and shall at the trial put the plaintiff to strict proof thereof. The plaintiff is a serving staff of Shell Petroleum Development who resides in Port Harcourt in the River State. He is not the village head elect of Ikot Akata.

Paragraph 2:- The 4th defendant denies the averment (in paragraph 2 of the statement of claim) that he ordinarily resides in Ikot Akata Village and is a serving officer in the Mechanical Department of Mobil Producing Nigerian Unlimited, and the plaintiff is hereby put to the strict proof thereof.

Paragraph 3:- The 4th defendant states further that he is from the Royal family of Ekpuk Otung Akpan Aswana in Ikot Akata where he resides as an indigene. He is the village head elect of Ikot Akata who administers “Iso Abasi Ubong” and “Iso Nkuku”.”

From the averments in paragraph 2 of the statement of claim, it can be seen that the only portion that relates to the 4th appellant is the last portion of it, where it is stated as follows:-

“While the 4th defendant ordinarily resides at Ikot Akata Village in Ikpa Ibom clan in Mkpat Enin Local Government Area and at all material time to this action, is a serving officer in the Mechanical Department of Mobil Producing Nigeria Unlimited”

Dr. Essien, the learned counsel for the respondent had contended that Order 24 rule 2 requires a party to raise “by” his pleadings not “in” his pleadings that point of law and that the essence of the provisions is that the point of law should emanate from pleadings in order to place the other party on notice and that the point in issue emanated from the material facts in paragraph 2 of the statement of claim and statement of defence as well as the motion. The point of law in the instant case is that the 4th appellant has no locus standi to defend the action. Locus standi means the legal right of a party to an action to be heard in litigation before a court of law or tribunal. The term entails the legal capacity of instituting, initiating or commencement of an action in a competent court of law or tribunal without any inhibition, obstruction or hindrance from any person or body whatsoever including the provision of any existing law. See: “K” line Inc. v. KR Int. Nig. Ltd. (1993) 5 NWLR (PT. 292) 159; Nnadi v. Okoro (1998) 1 NWLR (PT. 535) 573; Chief Gani Fawehinmi v. Akilu & Anor. (1987) 4 NWLR (PT. 67) 797; Bank of Baroda v. Iyalabani Ltd. (1998) 2 NWLR (Pt.539) 600.

In the instant case which is a Chieftaincy matter, it is the standing right or interest that the person has to prosecute the action. See also Erejuwa II & ors. v. Kperegbeyi & ors.(1994) 4 NWLR (pt.339) 46, (1994) 4 S.C.N.J. 241.

The learned trial Judge in his judgment at page 131 of the record, the learned trial Judge ordered as follows:-

“1. That the 4th defendant being a serving official of Mobil Producing Nigeria Unlimited at all material times to this action he has no place to stand and no leg to stand upon to defend this action in respect of the village headship Ikot Akata.

2. Also by virtue of section 13(1) (a) of the Traditional Rulers Edict 1990 of Akwa Ibom State the 4th defendant/respondent has no cause of action to defend in this suit.”

In arriving at his decision, the learned trial Judge had invoked the provisions of section 13 (1) (a) and (b) of Akwa Ibom State Traditional Rulers Edict No. 15 of 1990 which provides as follows:-

“No person shall remain or be selected a traditional ruler unless:

a) He is an indigene of the village or clan in respect of which he remains or is selected a traditional ruler and is not a serving official of the Public Service or any other service.

(b) He is living within the geographical area in respect of which he remains or is selected a traditional ruler.”

The averment in paragraph 2 of the statement of claim that the 4th appellant is a serving official of Mobil Producing Nigeria Unlimited has nothing to do with the issue of locus standi which is the right or competence of the 4th appellant to defend the action that is filed against him by the respondent. If the respondent’s case is that the 4th appellant is a serving official of Mobil Producing Nigeria Unlimited and that he is caught by the provisions of section 13(1) (a) of the said Traditional Rules Edict, that is that he is a serving official of the Public Service or any other service, the burden is cast upon the respondent to lead evidence at the trial to show that he is a staff of Mobil Producing Nigeria Unlimited and that he is disqualified under this section of the law. It is most surprising that instead of leading evidence to establish this at the trial after the parties had filed their pleadings that the respondent chose to bring a motion under Order 24 r. 3 of the High Court (Civil Procedure) Rules and the learned trial Judge not only granted his application but also gave judgment in his favour.

Under Order 24 rule 3, the point of law must be raised in the pleadings and it must be such that will substantially dispose of the whole action or any distinct cause of action.

In the instant case, no point of law which is locus standi was raised in the statement of claim and this can also not be said to emanate from the statement of claim.

It is relevant to observe that the respondent in his attempt to show that the 4th appellant is a staff of Mobil Producing Nigeria Unlimited tendered Exhibits A – F and the almanac which the learned trial Judge found that they are all referable to the 4th appellant; Exhibit A is a reply to the respondent’s counsel’s letter by the Personnel Manager of Mobil Producing Nigeria Unlimited that Mr. Okon Jackson Ufot is in the employment of their company. Exhibit A2 is the telephone Directory of Mobil Eket showing the telephone number of Elder O. J. Ufot. Exhibit C is a special invitation to Mr. O. J. Ufot of Mobil Producing Nigeria Unlimited. Exhibit D is the programme for induction of Elder O. J. Ufot in Qua Iboe Church and other similar documents and an almanac were exhibited. As I have earlier observed these are the documents that will be tendered all the trial where the witnesses will also face the fire of cross-examination.

The 4th appellant has in paragraph 2 of his statement of defence denied the averment in paragraph 2 of the respondent’s statement of claim and there is therefore conflict in the affidavit evidence before the court and the only course open to the learned trial Judge is to call for oral evidence to resolve it. See: Lagos State Dev. and Property Corp. v Adold/Stamm International (Nigeria) Ltd. (1994) 7-8 S.C.N.J 625 (1994) 7 NWLR (Pt.358) 545

In respect of paragraphs 2 and 3 of the statement of defence which are the reply to paragraph 2 of the statement of claim which I had earlier set out in this judgment, the learned trial Judge at page 128 of the records observed:-

“In paragraph 2 he denies being resident at Ikot Akata and also that he is a staff of Mobil. In paragraph 3, the 4th defendant states that he is from the Royal family of Ekpuk Otung Akpan Awana and further he states that he is resident at Ikot Akata. Clearly paragraph 2 is inconsistent with paragraph 3. The question then is which of the conflicting versions of an essential fact will the court believe to hold that the 4th defendant is ordinarily resident in Ikot Akata as an indigene in compliance with section 13(1) of the Tradition Rulers Edict No. IS of 1990, where the 4th defendant denies that he is not ordinarily resident at Ikot Akata it follows logically that he is not an indigene of Ikot Akata.”

At page 129, he observed:-

“From this premise even if I should allow the 4th defendant/respondent to go into the witnesses box to tell this court his story, the 4th defendant/respondent has no defence or reasonable defence to this action having regard to the provisions of section 13(1) (a) of Akwa Ibom State Traditional Rulers Council Edict No. 15 of 1990.”

No doubt, this finding of the learned trial Judge can very easily be faulted. In paragraph 2 of the statement of defence, the 4th appellant denies that he ordinarily resides at Ikot Akata and in paragraph 3, he further stated that he is from the Royal family of Ekpuk Otung Akpa Anwara in Ikot Akata where he resides as an indigene and that he is the village head elect of Ikot Akata who administers “Iso Abasi Dban” and “Iso Nkuku”.

If paragraphs 2 and 3 of the statement of defence are well considered, it shows that the 4th appellant is just trying to avoid the word “ordinarily” because “that he ordinarily resides in Ikot Akata village” and “that he is from the Royal family of Ekpuk Otung Akpa Awala where he resides as an indigene” are one and the same thing. In considering the defence put up by a defendant in a statement of defence, the whole statement of defence has to be considered to know the nature of the defence being put up by the defendant.

In the instant case, if the learned trial Judge was disposed to consider the defence being put up by the 4th appellant he would have seen that the 4th appellant’s contention is that he is not ordinarily resident and that he is from the Royal family of Ekpuk Otung Akpa Anwara in Ikot Akata where he resides as an indigene, that he is the village head elect of Ikot Akata who administers “Iso Abasi Ubong” and “Iso Nkuku”.

It is the man that said that he is the village head elect of Ikot Akata where he resides as an indigene that the learned trial Judge held that he is not an indigene of Ikot Akata because paragraphs 2 and 3 of the statement of defence are inconsistent and that if he should be allowed to go into the witness box to tell the court his story that he has no defence or reasonable defence to the action. It will be very interesting to observe that the learned trial Judge had earlier in his judgment at page 125 of records stated:-

“It is the view of this court that plaintiff/applicant comes from the same village, Ikot Akata with the 4th defendant/respondent. That prior to the dispute over the village headship of that village that the plaintiff and the 4th defendant definitely know themselves and where each is working and vice versa.”

It is after this finding that the respondent and the 4th appellant come from the same village, Ikot Akata that he made a sudden somersault and found that the 4th appellant is not an indigene of Ikot Akata and that by virtue of section 13(1) (a) of the Traditional Rulers Edict, 1990, that the 4th appellant has no cause of action or reasonable cause of action to defend in this suit.

I do not see any conflict in the 4th appellant’s statement of defence or his counter-affidavit but rather in the judgment of the trial Judge who after making a finding that the 4th appellant is an indigene of Ikot Akata later turned round to make a different finding that the 4th appellant is not an indigene of Ikot Akata and that because of this that he has no cause of action or reasonable cause of action to defend in the suit. No doubt this finding is perverse and cannot of course be allowed to stand:- See Chief Johnson Imah and Anor. v. Chief Okogbe (1993) 9 NWLR (Pt.316) 159, (1993) 12 SCNJ 57, Dr. Kwazeme Ofondu v. Nweigha (1993) 2 NWLR (Pt.275) 253, (1993) 2 SCNJ 73.

Further, it is because the learned trial Judge found that the 4th appellant had no locus standi to defend the action and that he also has no cause of action or reasonable cause of action to defend that he entered judgment against the 4th appellant and also the 1st – 3rd appellants.

Where it is found that a plaintiff lacks a locus standi to prosecute an action, it is the duty of the court to strike out the matter and not to dismiss it as the lack of locus standi results in lack of jurisdiction: – See Lawani Adesokon and ors. v. Sunday Adetunji & ors (1994) 5 NWLR (Pt.346) 540, (1994) 6 SCNJ 123, The Road Transport Employers Association of Nigeria v. The National Union of Road Transport Workers (1992) 2 NWLR (Pt.224) 381, (1992) 2 S.C.N.J. 251.

It follows that if the learned trial Judge had found that the 4th appellant, has no locus standi to defend the action that the only consequential order that he could make is to strike out the matter and not enter judgment for the respondents in chieftaincy matter in which the respondent has a duty to prove his claim which is based on tradition, custom and usages of Ikot Akata people. The matter did not stop there because the learned trial Judge also entered judgment against the 1st – 3rd appellants who have nothing to do with the issue of the 4th appellant’s locus standi or the motion before the lower court. Dr. Essien, the learned counsel for the respondent had defended the action of the learned trial Judge in his contention that the 1st-3rd appellants are just nominal parties and in the same respondent’s brief at page 7, he argued that the 1st – 3rd appellants took no part in the arguments for interlocutory injunction in which serious allegations of wrong doing and bias were alleged against the 2nd appellant. It is the same person that was accused of serious wrong doing and bias that he calls a nominal party and that judgment should be entered against him in a motion in which he and other two appellants were not party to.

Further, the learned trial Judge set out the motion and other reliefs sought by the respondent in pages 111 and 112 of the records, the respondent did not ask that judgment be entered in his favour against all the appellants.

The learned trial Judge, no doubt, had granted the respondent the reliefs which he did not ask for and this he is not empowered to do. See Ezeakabekwe v. Emenike (1998) 11 NWLR (Pt. 575) 529. Bank of the North v. Muri (1998) 2 NWLR (Pt. 536) 153. It must be observed that the learned trial Judge had confused the issue of the 4th appellant’s qualification to hold the office of the village head which is the very corner stone of his claim which is subject of strict proof with the 4th appellant’s locus standi to defend the action and it is also very interesting to observe that it is plaintiff/respondent who brought an action against the 4th appellant who is very fiercely engaged with him in the chieftaincy struggle that is saying that his opponent lacks the locus standi to defend the action, why did he sue the 4th appellant at all? If he had wrongly sued a person who has no locus standi to defend the action, the only honourable thing for him to do is to withdraw the action against him. Further, if the respondent had sued a person who lacks the locus standi to defend the action or the person who has no cause of action or reasonable cause of action to defend, it all means that the respondent has no cause of, action against that person which in this case is the 4th appellant. As the matter stands now, it all looks funny and a joke for the respondent to file an action against the 4th appellant and others and also file a motion alleging that the 4th appellant lacks locus standi to defend the action and also that he has no cause of action or reasonable cause of to defend and at the same time asking that judgment be entered against the same person and funny enough, the learned trial Judge acceded to this application and thereupon entered judgment in his favour. Dr. Essien had very strenuously adduced argument in support of the decision of the learned trial Judge and I must say that he was just trying to defend the indefensible.

The 4th appellant in paragraph 1 of his statement of defence stated that the respondent “is a serving staff of Shell Petroleum Development (sic) who resides in Port Harcourt in the River State”. This has not been denied by the respondent. The learned trial Judge did not at all address his mind to this and if he had done so, he would have seen the frivolity of the application because there is nothing to show that the respondent is in a better position to prosecute the action than the 4th appellant to defend it.

In respect of the question whether failure by the plaintiff/respondent to serve the required statutory notice of intention to sue on the 1st – 3rd defendants/appellants before filing suit No HAB/70/94 does not render the entire proceedings at the lower court a nullity. Section 32(1) and (2) of the Traditional Rulers Edict No. 15 1990 states:-

“32(1) No person may bring any action against the Military Governor or a Government functionary or any person or body charged with any function in connection with the selection, installation, recognition or withdrawal of recognition of a person as paramount ruler, clan head or village head whether or not the cause of action arose from any act of commission or omission in execution of the provisions of this Edict by the Military Governor or such other person unless:

(a) ……..

(b) one month at least has expired after written notice of intention to sue has been served upon the Military Governor.

32(2) A notice of intention to sue as in subsection (1) shall clearly state:-

(a) The cause of action;

(b) The particulars of claim;

(c) The name and place of abode of the person suing; and

(d) The relief sought by the person suing.”

This issue was raised from ground 3 in the 1st – 3rd appellant’s notice of appeal and it reads:-

“The entire proceedings of the lower court are null and void and the plaintiff/respondent failed to satisfy the statutory requirement of giving notice to the 1st, 2nd and 3rd defendants/appellants before commencing suit No.HAB/70/94 at the High Court of Ikot Abasi.”

I have well and carefully gone through the whole length and breath of the record of proceeding and I do not see anywhere that the question of the respondent’s failure to satisfy the statutory requirement of giving notice to the 1st, 2nd and 3rd appellants before commencing the suit was raised and in the learned trial Judge’s judgment, there was nothing that was said about it and no finding was as well made in this regard. An appeal must challenge or attack the judgment of the lower court which must be made a complaint in a ground of appeal. The complaint must be that the decision of the lower court is erroneous.

It is pertinent to observe that an appeal presupposes the existence of some decision appealed against. In the absence of such a decision on a point, there cannot possibly be an appeal against what had not been decided against a party. See Chief Daniel Ogbonnaya & ors v. Adapalm Nigerian Ltd. (1993) 5 NWLR (pt.292) 147, (1993) 6 SCNJ 23; Union Bank of Nigeria Ltd. v. Prof Albert Ojo Ozigi (1994) 3 NWLR (Pt.333) 385, (1994) 3SCNJ 42; Hyacenth Anyanwu v. Mbara & Anor. (1992) 5 NWLR (pt.242) 386 (1992) 6 SCNJ 22; Babalola v. The State (1989) 4 NWLR (Pt. 115) 264; Oredoyin & Ors. v. Arowolo & Ors (1989) 4 NWLR (Pt. 114) 172. It is settled that a specific leave to raise a fresh point is required and that mere leave to file an additional ground is not enough. See Agwam Obioha & Ors. v. Duru & Ors. (1994) 8 NWLR (Pt.365) 631, (1994) 10 SCNJ 48; Grace Abraham Akpabio & Ors. v. The State (1994) 7 NWLR (Pt.359) 635, (1994) 7-8 SCNJ.

The 1st – 3rd appellants did not seek and obtain the leave of this court to raise this matter for the first time in this court.

It therefore follows that issue No.4 which is covered by ground 3 in the 1st – 3rd appellants’ notice of appeal which is not a valid ground of appeal is therefore incompetent and must be discountenanced.

On the whole, I am of the view that the learned trial Judge misconceived and misapplied the law on locus standi and the provisions of Order 24 rules 2 and 3 of Akwa Ibom State High Court (Civil Procedure) Rules whereby he entered judgment in favour of the respondent against the appellants and that this has occasioned a miscarriage of justice and that the decision cannot therefore be allowed to stand. I am also of the view that there is merit in the appeal and that it ought to be allowed. In the final result, I hereby allow the appeal. I set aside the ruling of Okpo J. delivered on 7th August, 1997 and in its place, I dismiss the respondent’s motion.

I hereby order that this case be remitted to the High Court of Akwa Ibom State where it will be assigned to another Judge for trial on the pleadings filed by all the parties. There will be N5,000.00 costs in the 4th appellants favour.

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Other Citations: (2000)LCN/0804(CA)