Eze Anayochukwu Ernest Anyanele Duerueburuo V. Innocent Ikwuneme Nwanedo & Ors (2000)

LawGlobal-Hub Lead Judgment Report

AKPIROROH, J.C.A. 

This is an interlocutory appeal against the ruling of the High Court of Imo State holden at Orlu delivered by Nwachukwu J. on 2nd July, 1996 in suit No. HOR/117/85 whereby the preliminary objection challenging the competence of the trial court to entertain the suit for want of jurisdiction was overruled.

Dissatisfied with the ruling, the 1st defendant/appellant has appealed to this court.

In accordance with the Rules of this court, the appellant filed his brief of argument and identified two issues for determination as follows:-

“ISSUES FOR DETERMINATION

1. Whether the action is competent and the court can exercise jurisdiction when the plaintiff respondent failed to give written notice of intention to sue as required?.
2. Whether in view of section 25 of the Traditional Rulers Law No. 11 of 1981 of Imo State the High Court is only empowered to determine such matters by way of review not by writ of summons?.”

The respondent filed a brief of argument and also identified two issues for determination as follows:-

“ISSUES FOR DETERMINATION

Whether the action is competent and the High Court can exercise jurisdiction when the 3rd defendant, Mr. Victor Onyebukwa (Secretary, Nkwerre/Isu Local Government Area) was not given a written notice of intention to sue him?.

Whether in view of provisions of section 25 of the Traditional Rulers and Autonomous Communities Law No. 11 of 1981, as aggrieved party in the service of recognition of an Eze by the Governor can challenge the exercise and seek redress from the court by writ of summons.”

On the first issue, learned counsel for the appellant submitted that the third defendant/respondent could not have been sued in his personal capacity because he accepted the presentation of the appellant as the Eze of Okwudor. He argued that the Local Government Secretary is a Public Officer by virtue of Item 3, Part II Schedule 5 to the 1979 Constitution of the Federal Republic of Nigeria and by accepting the presentation of the respondent, it is an official act performed by him as a public officer in the execution of his official function as provided by section 5 of the Imo State Law No. 11 of 1981, and as such the act of the 3rd respondent was not private and same was not ultra vires since he was acting within the provisions of the law.

He therefore contended forcefully that the action of the 3rd respondent was an act of the Nkwerre/Isu Local Government itself and relied on Attorney-General of Ogun & Ors. v Attorney-General of the Federation (1982) 1-2 SC 13 at 86. He referred to page 30 lines 1-3 of the record where the learned trial Judge held that the 3rd defendant/respondent was performing a function for the Government of Imo State under sections 5-6 of Law No. 11 of 1981, and contended that he ought to have held further that by virtue of the provisions of the said section 5-6 Law No. 11 1981, that the Government of Imo State had delegated its function to the Nkwerre/Isu Local Government; and as the Local Government usually acts through its functionaries, the 3rd respondent by acting for the said Nkwerre/Isu Local Government Council is entitled to be given a pre-action notice as required by section 163(1) of the Imo State Government Edict No. 20 of 1976. It was also his submission that since the 3rd respondent who was acting for the Nkwerre/Isu Local Government Council was not served with a pre-action notice, the court lacked the jurisdiction to entertain the action. It is of no consequence that the party entitled to the statutory notice before the institution of the action or subsequently before joining him in the court, he submitted and cited in support a litany of cases including Anambra State Government v. Nwankwo & 5 Ors. (1995) 9 NWLR (pt.418) 245.

He further argued that the issue of jurisdiction, must where it arises, be addressed at the earliest opportunity, for any hearing proceeded upon without jurisdiction is a wasteful exercise and cited in support the cases of Madukolu v. Nkemdilim (1962) 2 SCNLR 341 and Skenconsult v. Ukey (1981) 1 SC 6.

He finally urged the court to hold that as the jurisdiction of the court was not activated by serving the statutory notice on the 3rd respondent, the court lacked the jurisdiction to entertain the action.

On the second issue, he submitted that in the instant case, since section 25 of Law No. 11 of 1981 as amended makes provision for the procedure to be adopted by the respondent, failure to follow the provision for initiating an action renders the action incompetent and relied on the cases of Adediran v. Interland Transport Ltd. (1991) 9 NWLR (Pt.214) 155; Ajewole v. Adetimo (1994) 3 NWLR (Pt.335) 739 and Brown v. Brown (1879) AC 615.