Chief L.U. Okeahialam V Nze J. U. Nwamara (Isinze Onicha) (2003)

LAWGLOBAL HUB Lead Judgment Report

O. AYOOLA, J.S.C. 

The 1st and 2nd plaintiffs/respondents suing for themselves and members of the Onicha Amairi Autonomous Community Council of Ndi Eze, together with the 3rd and 4th plaintiffs/respondents, claimed in an action instituted in the High Court of Imo State, sometime in November, 1993, against the appellants and the defendants/respondents, a declaration that the purported recognition of Chief I.U. Okeahialam, the 1st appellant, as the Traditional Ruler of Onicha Amairi Autonomous Community “is illegal, and a nullity having been obtained fraudulently and contrary to the provisions of the relevant law,” and, consequential reliefs.

The plaintiffs/respondents’ case in the High Court was that the 1st appellant was neither selected, presented nor installed as traditional ruler pursuant to what they described as a ‘chieftaincy constitution’ which they alleged came into force on 12th May, 1979, and that the 4th defendant was deceived into recognising him. The gist of their case was thus the alleged ‘unconstitutionality’ in terms of the chieftaincy constitution, of the steps taken leading to the recognition by the 4th defendant of the 1st appellant as traditional ruler of the respondents’ community by the letter of recognition dated 28th September, 1993 written by the Deputy Governor.

The appellants raised objection to the suit on several grounds, two only of which are material to this appeal. They are that:

(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”, and

(2) “The suit is tainted with a fundamental vice of improper joinder and mis-joinder of parties.”

The trial Judge struck out this suit on the grounds first, that it was filed fourteen days after the mandatory period of 21 days from the date of recognition, that is, outside the time permitted for bringing such suit by section 25 of Law No. 11 of 1981 and, secondly, that the procedure stipulated for challenging such recognition by the provisions of that section was by means of an appeal. He held that the suit was defective for improper joinder of parties as the plaintiffs were also the defendants in the same suit.

The plaintiffs/respondents appealed to the Court of Appeal which took the view that the appeal raised three issues, namely: (i) whether the suit was statute-barred by reasons of the provisions of section 25 of the Law No. 11of 1981; (ii) whether section 25 of the Law was inconsistent with the relevant provisions of the 1979 Constitution; and, (iii) whether there was a mis-joinder of parties. The Court of Appeal held that section 25 was in conflict with sections 6 and 236 of the 1979 Constitution, in that it denied an aggrieved person his right of access to the court and, therefore, without effect. Consequently, it held that the action of the appellants was not statute-barred. It went on to hold, among other things, that a proper complaint against such recognition is not by way of appeal but by action begun by writ of summons or by certiorari proceedings; that section 25 was in conflict with section 7 of the same law which makes recognition given the Governor to a person as an Eze subject to confirmation of the Imo State House of Assembly and finally, that the action was properly constituted in that the respondents must be deemed to have been excluded from the parties sued. The Court of Appeal allowed the appeal of the plaintiffs/respondents and set aside the order of the High Court striking out the suit. It ordered that the suit be re-listed for hearing before another Judge of the High Court. The appellants herein appealed.

The appellants on their appeal raised six issues for determination, one of which was abandoned. Of the five issues remaining for determination, the question whether the court below was right in holding that section 25 of Law No. 11 of 1981 was in conflict with section 7 of the same Law need not delay me as the plaintiffs/respondents readily conceded that the court below was in error. Section 7 as it originally stood provided that recognition of a person as an Eze by the Governor was subject to the confirmation of the State House of Assembly. There is no doubt that that was inconsistent with the finality accorded the recognition by the Governor. However, section 7 was amended by the Traditional Rulers and Autonomous Communities (Amendment) Law, 1982 which, among other things, removed the provision making the recognition of a person as an Eze to be subject to the confirmation of the State House of Assembly. The amendment was not brought to the notice of the court below, probably because the matter was raised merely by way of a comment by Uwaifo, JCA, (as he then was) on his own motion in the course of his judgment. It was not a comment necessary for the determination of the appeal either in the court below or in this court. An erroneous comment that is not material to the issues in an appeal cannot affect the conclusion in the appeal.

The two main issues decisive of this appeal are whether the proviso to section 25 of Law No. 11 of 1981 applied to the suit and, whether the suit was properly constituted. Section 25 of the Imo State Traditional Rulers and Autonomous Communities Law No. 11 of 1981 (“Law No. 11 of 1981”) which is central to this appeal provides as follows:

“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.”

The appellants’ counsel on this appeal argued’ that the section did not oust the jurisdiction of the court so as to bring it in conflict with the provisions of section 6(6)(b) and section 272 of the 1999 Constitution. I find no difficulty in agreeing with him and in holding that the court below was in error in holding that that section conflicted with section 6(6)(b) or section 272 of the Constitution or both. Section 6(6)(b) defines the scope of the judicial powers vested in the courts enumerated in section 6, while section 272(1) declares the plenary jurisdiction of the High Court of a State “to hear and determine any civil proceedings in which the existence or extent of a legal right (etc) is in issue or to hear and determine any criminal proceedings ….. “There is nothing inconsistent with the Constitution in the main provision of section 25 which made the recognition by the Government of a person as an Eze final. The recognition was final in the sense that it could not be reviewed on the merit either by the Governor or by a court. However, it was not “final” in the sense that it could not be reviewed on the usual grounds of illegality, procedural impropriety, or irrationality. In R. v. Northumberland Compensation Appeal Tribunal, Ex parte Shaw (1952) 1 All ER 122, Denning, L. J. (as he then was) said (at p. 127):

” … the Court of King’s Bench has an inherent jurisdiction to control all inferior tribunals, not in an appellate capacity, but in a supervisory capacity. This control extends not only to seeing that the inferior tribunals keep within their jurisdiction, but also to seeing that they observe the law. The control is exercised by means of a power to quash any determination by the tribunal which, on the face of it, offends against the law. The King’s Bench does not substitute its own views for those of the tribunal, as a Court of Appeal would do. It leaves it to the tribunal to hear the case again, and in a proper case may command it to do so.”