Ikerumba Madumere V. Emmanuel Onuoha & Ors (1999)

LawGlobal-Hub Lead Judgment Report

IKONGBEH, J.C.A.

This is an appeal by the plaintiff before the Imo State High Court (I.C.K. Pats-Acholonu, J., as he then was), sitting at Etiti. What gave rise to this suit before that Court was the demolition by the 1st and 2nd respondents herein of a structure the appellant had erected on a piece of land. The respondents had done the act complained of in their capacity as chairman and secretary respectively of the Obowo Local Government, created out of Etiti Local Government in 1981 by the Imo State Government.

Pleadings were ordered, filed, exchanged, and amended. Evidence was however, not taken, the plaintiff having decided to submit some issues for the Court’s consideration and decision based on the facts in the pleadings on which there was no dispute. These facts were as follows: In 1981 the Imo State Government established the Obowo Local Government by carving same out of the existing Etiti Local Government. The 1st respondent was appointed the chairman of the newly created Local Government and the 2nd respondent as the secretary.

The appellant put up a structure on a piece of land that the 1st and 2nd respondents felt belonged to the Local Government. They, acting as chairman and secretary of the Local Government, took action, which they felt their duty as chairman and secretary called for in order to protect property of the Local Government. What they did was to demolish the structure put up by the appellant.

The issues submitted to the Court below by the appellant were as follows:

“1. Whether Obowo Local Government Council was a legal entity known to the law of this country; vide the constitution.

7. Whether a State can pass a law which is inconsistent with the unsuspended parts of the constitution of the Federation (1979) or covered by a Decree.
8. Whether Obowo Local Government Area was non-existent, the act of 1st and 2nd defendants in destroying the property in question is defensible or justified in law.
9. Whether Etiti Local Government Council can ratify the act of alleged Obowo Local Government Council under the constitution or any existing Decree.
10. Whether the Act of the alleged Obowo Local Government Council which was done when in law Obowo Local Government Council did not exist can be ratified by a subsequently legally created Obowo Local Government.
11. Whether a state counsel can defend the 1st and 2nd defendants where they are sued in their personal capacity for an act they (1st and 2nd defendants) were incompetent to perform under the law.
12. Can the High Court of this State adjudicate on the creation of new Local Government Area by the Governor of the State Government.”

The learned Judge heard arguments from counsel on the issues and delivered his decision thereon. He agreed with the appellant that the Imo State Government lacked the constitutional competence to create the Obowo Local Government. He agreed also that the creation exercise was, therefore, a nullity. He however rejected the contention of the appellant that because of that fact the Obowo Local Government could not be regarded as having existed in fact and that, therefore, the 1st and 2nd respondents could not rely on their being in the service of such nonexistent Local Government to claim to be public officers and to claim protection as such officers for their act complained of.

Aggrieved by this second part of the learned Judge’s decision the appellant appealed to this Court on one ground. With leave of this court he filed 3 additional grounds.

Parties filed briefs of argument in compliance with the Rules of this Court. In the amended appellant’s brief learned counsel identified the following 3 issues for determination.

“3.1 Whether the trial judge was right in holding that the first and second Respondents were public servants of the Obowo Local Government, if not whether their demolition of the appellant’s house was justifiable in law.

3.2 Whether the act of pulling down the house of the appellant by the 1st and 2nd defendants who were not lawful officers could be justified in law in the circumstances.

3.3. Whether the respondents acted in good faith for public purpose.

On behalf of the 1st and 2nd respondents the following 2 issues were formulated:

“Whether the trial Judge was right in-law in holding that 1st and 2nd Respondents were public servants.