The Military Governor, Anambra State & Ors. V. Job Ezemuokwe (1997)

LAWGLOBAL HUB Lead Judgment Report

L. KUTIGI, J.S.C.

The plaintiff’s claims against the defendants in the High Court are as follows: –

“1. A declaration that the plaintiff was properly and validly installed and capped the Obi or Igwe of Achina in 1959 by the people of Achina and has since enjoyed and still enjoys the popular support of the majority of Achina people.

2. A declaration that the recognition of the plaintiff as the traditional ruler of Achina by the Military Governor of Anambra State in 1977 was valid and the certificate of recognition issued to him in November 1977 proper and in accordance with law.
3. A declaration that the withdrawal of the said plaintiff’s recognition by the 1st defendant which was made public by press notice issued by the 2nd defendant on the 26th of July, 1991, without giving the plaintiff a hearing constituted a serious violation of his constitutional rights and the principles of natural justice and is therefore null and void.
4. A declaration that the 1st and/or the 2nd defendant and/or the government of Anambra State are not competent to prescribe for Achina people traditional rulership by rotation among the three

villages of Achina contrary to the traditions and the customary law of Achina and when there was no such provision in the chieftaincy constitution of the Achina community filed with the government of Anambra State and the purported prescription of rotatory rulership constitutes an abuse of power.

5. A declaration that the decision of the 1st and/or the 2nd defendant and/or the government of Anambra State that rotational rulership of Achina should commence with the village of the 4th defendant which is not the traditional “Okpala” village followed by the village of the plaintiff which is the “Okpala” village constitutes a desecration of the customs and usages of the Achina community, is ultra vires, and is not binding on the said community.
6. A declaration that no board of enquiry headed by the 5th defendant gave the members of Achina community an open opportunity of being heard on the matter the board was appointed to investigate before submitting a report to the 2nd defendant on or about 11th June, 1991.
7. A declaration that the findings of the so-called board of enquiry as stated in the press release issued by the 2nd defendant upon which the decision withdrawing recognition from the plaintiff was based amounted to an adjudication on an allegation constituting a criminal offence which infringed the Constitution of Nigeria and both the finding and the decision based thereon are null and void.
8. A declaration that as no specific charges of misconduct were laid against the plaintiff and no process was carried out by the 5th defendant to ascertain the popularity of the plaintiff his demotion from the Obi or Igwe of Achina to that of Obi of Ebele village on ground that he never enjoyed and still did not enjoy the support of Achina community is an arbitrary show of naked power, oppressive and contrary to the provisions of the Traditional Rulers Edict 1981 relating to the withdrawal of recognition of a recognised traditional ruler and therefore invalid, null and void.
9. An injunction restraining the 4th defendant from usurping/and or exercising the customary functions of the Obi of Achina.”

Meanwhile the 1st, 2nd, 3rd & 5th defendants filed a Motion on Notice praying the court:

“for an order striking out or dismissing the suit on the ground that the court has no jurisdiction to entertain the suit on the ground that the notice of intention to sue required to be serve on the 1st

defendant under the Traditional Rulers Law (Amendment) Edict No.2 of 1990 was not served before the commencement of the suit.”

The motion was supported by an Affidavit and a Further Affidavit, all sworn to by one Ernest Okafor, a Senior Litigation Officer in the Ministry of Justice, Enugu. Paras. 2, 3, 4, & 5 read as follows:-

“2. That as the Senior Litigation Officer I am conversant with all facts and matters touching and concerning all suits for and against the Government of Anambra State and in particular the present suit.

3. That I also receive all correspondences addressed to the Attorney-General or the Military Governor in respect of all suits instituted against any or all of them.
4. That I swear to this Affidavit on behalf and authority of the 1st, 2nd and 5th applicants.
5. That no notice of intention to sue the Governor or any of his functionary was served on the Governor or any of the functionary as required by the Traditional Rulers (Amendment) Edict 1990.”

The plaintiff in a reaction personally swore to a Counter-Affidavit and a Further Counter-Affidavit paras. 4 – 7 of the Counter-Affidavit which I consider important read thus –

“4. By letter dated 25th July, 1991, the 1st defendant stated that he had withdrawn my recognition as the traditional ruler of Achina under the Traditional Rulers Law with effect from the same 25th July, 1991. A photocopy of the said letter is attached hereto and marked Exhibit A. I shall produce the original at the hearing.

5. I instituted the above suit on 29th July, 1991, after the said 1st defendant/applicant dismissed me as the traditional ruler of Achina.
6. I am advised by my counsel that it would have amounted to an offence punishable under the said edict for me to represent myself as a traditional ruler on or after the said 25th July, 1991, by giving notice as a traditional ruler of my intention to sue the 1st defendant or the 2nd, 3rd, and 5th defendants.
7. The applicant was served with my Writ of Summons on 29th July, 1991, and he appeared by counsel and took part fully in proceedings relating to interim injunction against the defendants without objection. ”

Exhibit A referred to in para. 4 of the plaintiff’s Counter-Affidavit above is reproduced for ease of reference thus

Chief Job Ezemuokwe,

Achina Town,

Aguata Local Government Area.

WITHDRAWAL OF RECOGNITION

The Military Governor of Anambra State, after due consideration of the report and findings of the Administrative Board of Enquiry into Achina chieftaincy dispute, is satisfied that you were never selected nor presented by the Achina community to the Anambra State Government and also that you never enjoyed and still do not enjoy the popular support of the Achina community.

2. For the foregoing reasons and in the interest of peace, order and good government, the Military Governor has with effect from 25th July 1991, withdrawn yourrecognition as the Igwe of Achina. The Military Governor has further decided to recognis’e Mr. M.Z.C Okpala as the Traditional Ruler/Igwe of Achina with effect from the same 25th July, 1991. You are hereby directed to return the Certificate of Recognition irregularly presented to you and have the Certificate deposited with the Chairman of Aguata Local Government Council within 7 (seven) days of the receipt of this letter.
3. You are advised to comply accordingly.

(Sgd.) S.O. assai,

Director-General

for: Deputy Governor”

Exhibit A was confirmed by the defendants when they also in their Further Affidavit exhibited the Anambra State Government Gazette No. 33 Vol 16 dated 18th August, 1991 particularly A.S.L.N. No. 68 of 1991 and A..S.L.N. 69 of 1991, which respectively withdrew the recognition from the plaintiff as the traditional ruler of Achina Town Community and recognised the 4th defendant (Michael Z.C. Okpala) as the new Igwe in replacement thereof.

The undisputed facts therefore were that the plaintiff was in 1977 accorded recognition as the traditional ruler, Igwe or Obi, of Achina by the then Military Governor of Anambra State pursuant to the Traditional Rulers Law of that State.

On the 25th of July 1991, another Governor of Anambra State, the 1st defendant, by letter (Exhibit A) withdrew the recognition from the plaintiff as the traditional ruler of Achina and ordered him to deposit his Certificate of Recognition with the Chairman, Aguata Local Government Council within 7 days. In the same letter the 1st Defendant informed the plaintiff that he had accorded recognition to the 4th defendant as the Traditional Ruler of Achina town also with effect from 25th July, 1991. Aggrieved by the said letter of withdrawal of recognition, Plaintiff instituted this action.

The motion was argued and counsel on all sides addressed the court. In a reserved ruling, the learned trial Judge identified five issues for determination. Only two of them are relevant for the purposes of this appeal as follows:-

(1) Whether in any town or community there can be two (2) traditional rulers – one recognised and the other not recognised.

(2) Whether the plaintiff belongs to the class of persons envisaged under section 26A of the Traditional Rulers (Amendment) Edict, 1990 to give notice of intention to sue the 1st defendant.

On issue (1) the learned trial Judge held rightly in my view, on page 43 of the record thus –

“The issue is therefore resolved that in any town or community there cannot be more than one traditional ruler – one recognised and the other not recognised.”

On issue (2) above, this is what he said on page 45 of the record –

“It is my view that as long as recognition of a traditional ruler remains withdrawn, he can no longer perform any of the functions of traditional ruler within the con of the Traditional Rulers Law. Therefore the requirement for the giving of notice applies to him not because he is a traditional ruler but solely because he seeks redress within that law and must comply with the provisions of that law.”

Further down on page 46 he opined thus –

“A notice before a claim may enable the Governor to reconsider his reasons for withdrawing the recognition in the first place which may obviate the need for any action by the plaintiff. It is my view that the plaintiff is obliged to serve notice of intention to sue the 1st defendant not because he is a traditional ruler but solely on account of the fact that the nature of his claim and the reliefs he seeks come within the con of the provisions of the Traditional Rulers Law No. 14 of 1981 as amended by Section 26A of the Traditional Rulers Law (Amendment) Edict 1990 and he cannot go outside the law to institute his claim………………..

I am satisfied that failure of the plaintiff to serve Notice of intention to sue the 1st defendant has ousted the jurisdiction of the court. Accordingly the prayer to strike out the suit is granted and the suit is hereby struck out.”

It is abundantly clear therefore from the Ruling of the learned trial Judge above that the following findings of facts were made amongst others –

1. That when the plaintiff instituted this suit, he was no longer a traditional ruler under the Traditional Rulers Law (as amended);
2. That there cannot be two traditional rulers in a town or community at one and the same time.

Suffice it at this stage to state timeously and categorically too, that the defendants/applicants did not find it necessary to appeal against any of the above findings of the learned trial Judge which were later confirmed by the Court of Appeal. Of course, they got what they wanted. The case was struck out by the High Court.

Dissatisfied with the Ruling of the High Court, the plaintiff appealed to the Court of Appeal, Enugu Judicial Division. The thrust of the attack was that the learned trial Judge having made the vital finding that the plaintiff was not a traditional ruler, it was contrary to that finding for the same Judge to hold that the plaintiff was obliged to give notice of intention to sue, moreso, when the Governor and or other defendants did not appeal against the finding of the trial Judge that the plaintiff is not a traditional ruler. It was also contended that no provision of Traditional Rulers Law enjoins a person not a traditional ruler, to give any notice of intention to sue the 1st defendant.

In a well considered judgment the Court of Appeal unanimously agreed with the finding of the learned trial Judge that there cannot be more than one traditional ruler at any given time in any given community or town. It also agreed with him that the plaintiff is not a traditional ruler and consequently he was not obliged to comply with the provisions of section 26A of the Traditional Rulers Law (as amended). It however, disagreed with the learned trial Judge that merely because of the nature ofthe claims herein the plaintiff was still bound to comply with section 26A of the law.

The Court of Appeal therefore allowed the appeal and restored the case to the General Cause List to be’ heard by another Judge of the High Court.

Aggrieved by the decision of the Court of Appeal, the 1st, 2nd, 3rd & 5th defendants, hereinafter called the appellants, have appealed to this Court. The plaintiff will also from henceforth be referred to as the respondent. At the hearing of the appeal on 16/12/96 learned counsel for the 4th defendant Mr. G.C. Ezeuko SAN, informed the court of the death of his client, the 4th defendant. He therefore asked that the name of the 4th defendant be struck out. Counsel on the other sides not opposing, his request was granted and the name of the 4th defendant was struck out accordingly.

In compliance with the Rules of Court the parties filed and exchanged briefs of argument which were adopted and relied upon at the hearing.

The appellants in their brief identified three issues for determination as follows:-

1. Whether having regard to Section 2 and other sections of the Traditional Rulers Law, 1981, which sections must in any event be read together, there can be two or more or only one traditional ruler in a town or community.
2. Whether on withdrawal of the recognition of a recognised traditional ruler, the affected person remains a traditional ruler or becomes an ordinary villager within the meaning of section 2 of the Traditional Rulers Law 1981. Put the other way – What is the status of a recognised traditional ruler whose recognition was withdrawn by the Government. Does he continue to retain the status of a traditional ruler which he was or held before his recognition Or does he translate to ordinary villager devoid of all vestiges of a traditional ruler merely because his Government recognition was withdrawn
3. Whether the plaintiff is a traditional ruler within the meaning of section 2 and other sections of the Traditional Rulers Law 1981 and thus required to give pre-action notice pursuant to section 26A of the Traditional Rulers Law 1981 and if so whether his failure to do so was not fatal to the suit instituted by him without such pre-action notice.

Mr. Anyamene, SAN Learned Counsel for the respondent has quite rightly in my view, submitted only one question as arising for determination from all the five grounds of appeal filed by the appellants thus –

“Whether the Court of Appeal was correct in holding that the plaintiff was not a person bound to give notice to the Governor/Public Officers under section 26A of the Traditional Rulers Law before instituting this suit.”

I have carefully read the briefs filed by the parties in this appeal and it is clear to me that the appellants, save for a repetition of the arguments they made as applicants in the High Court, and as the respondents in the Court of Appeal, have nothing new to advance in this Court. The appellants had argued all the way that the respondent was still a traditional ruler under the Traditional Rulers Law bound to give pre-action notice under section 26A of the Traditional Rulers Law 1981 as amended. They have equally argued that a community or town may select and appoint more than one Igwe or Obi at a time. I must stress that this being an interlocutory appeal, there was not iota of evidence supporting the claim of the existence of the custom on which this assertion was based.

Now, section 26A of the Traditional Rulers Law (Amendment) Edict No.2 of 1987 reads –

“26A. A traditional ruler shall not commence a suit against the Governor or a Government functionary, whether or not the cause of action arose from any act of commission or omission in the execution by the Governor or such Government functionary of any provision of this law, until one month at least after a written notice of intention to commence the suit shall have been served upon the Governor or the Government functionary by the traditional ruler or his agent; and such notice shall clearly and explicitly state –

(i) The cause of action;

(ii) the particulars of the claim;

(iii) the name and place of abode of the traditional ruler; and

(iv) the relief sought by the traditional ruler.”

A traditional ruler is defined under section 2 of the Traditional Rulers Law 1981 to mean-

“a person selected and appointed as “Igwe” or “Obi” of a town or community in accordance with this law, who, on his recognition by the Governor, shall be styled or known as a recognised chief.”

On the effect of the withdrawal of respondent’s recognition as a traditional ruler, the Court of Appeal (per Achike, JC..A.) on page 70 of the record said –

“The kernel of the controversy between the parties is, what is the effect of the withdrawal of appellant’s recognition as a traditional ruler by the Governor In law, the appellant, from the moment he was so communicated of the withdrawal of recognition as a traditional ruler, ceased to be a traditional ruler. All incidents appurtenant to the traditional ownership automatically terminated henceforth as they relate to the appellant. It is perhaps pertinent to put it lucidly and bluntly (without any attempt to be disrespectful) that the appellant thereafter became an ordinary villager of Achina having been stripped of all vestiges of a traditional ruler ……………..

Being de-stooled or derobed of the vestiges of a traditional ruler, and therefore abruptly and traumatically translated into an ordinary villager, the appellant could only institute an action as he did, as an ordinary citizen or person ………………………

In my view, any person who is not a traditional ruler within the meaning of section 2 of the Law cannot be expected to institute an action in compliance with the provisions of section 26A.”

On the plurality theory the Court of Appeal (also per Achike, J.C.A.) said on page 66 of the record –

“Concluding, Counsel submits that the law admits of possibility of more than one traditional ruler but only one being a recognised traditional ruler. With respect that argument is untenable. It completely undermines the definition of a traditional ruler under section 2 of the Law. The words of section 2 are manifestly clear and the basic canons of interpretation do not permit that one should read or introduce extraneous words to the provisions of the law where the provisions of that law are not ambiguous. The provisions of the law must be given their ordinary or natural or literal meaning.

Having misconceived the clear words of section 2, the learned Director of Civil Litigation wrongly imagined or theorised on the possibility of two traditional rulers within a community……

I am firmly of the view that it will not be in consonance with the provision of section 2 for two persons within a community to hold themselves out as traditional rulers at one and the same time ……………………..I therefore agree with the learned trial Judge that there cannot be more than one traditional ruler at any given time in any given community or town within the meaning ofthe term traditional ruler under section 2 of the Law.”

I endorse the views, expressed by Achike, J.C.A. in the two extracts above. In the letter from the Ministry of Justice of counsel to the Appellants, the Solicitor-General warned the respondent that the withdrawal of the recognition accorded to him precluded the respondent from holding himself out as the traditional ruler of Achina. The letter reads –

“Chief Ezemuokwe,

c/o His Solicitor,

A.N. Anyamene Esq., SAN,

113 Chime Avenue,

New Haven – Enugu,

Enugu State.

FLAGRANT BREACH OF TRADITIONAL RULER’S LAW

The attention of this Ministry has been drawn to a publication in Satellite Newspaper of October 16th, 1991, captioned “Igwe urges subject to join hands with government” wherein you still hold yourself out as the Traditional Ruler of Achina. This is notwithstanding the withdrawal of your recognition by the Anambra State Government. The order of injunction issued on 5th August, 1991 and confirmed on 5th September, 1991 by the Enugu High Court does not in any way affect the Government withdrawal of your recognition which still stands. Consequently you are precluded from holding yourself out as the Traditional Ruler of Achina and it is a criminal offence to do so.

(Sgd.) J.C.S. Njelita

Solicitor -General/Director-General.”

I believe it is common sense which accords with the law that a dethroned or de-stooled ruler cannot continue to answer as ruler after such dethronment. Further, the Governor himself in his letter of Withdrawal of Recognition (Exhibit A) above, expressly stated therein that he was satisfied that the respondent was “never selected nor presented by the Achina community to the Anambra State Government” for recognition. Appellant’s counsel would therefore clearly have appeared to be contradicting their clients’ case.

In summary, I answer the three questions posed by the appellants thus

Issue1:

There cannot be two or more traditional rulers in a community at one and the same time.

Issue 2: On withdrawal of recognition, a dethroned or de-stooled traditional ruler translates to an ordinary citizen devoid of all vestiges of a traditional ruler.

Issue 3: The plaintiff/respondent having been dethroned or de-stooled, ceased to be a traditional ruler and therefore not required to give pre-action notice pursuant to section 26A of the Traditional Rulers Law (as amended).

All the issues having been decided against the appellant, the appeal must be dismissed. It is accordingly dismissed with one thousand naira (N1,000.00) costs in favour of the plaintiff/ respondent.

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SC.152/1994