S.W. Iyabi-ayah & Ors. V. Chief (Lt. Col.) Ayah & Ors. (1997)

LawGlobal-Hub Lead Judgment Report

ROWLAND, J.C.A. 

In the High Court of Rivers State of Nigeria, holden at Degema and in Suit No. DHC/25/88, the plaintiffs took out a writ in the following terms:-

“(1) A declaration that the 1st defendant ceased to be the Chief and Head of Ayah House of Ewoama and Okpoma since he was dethroned by the members of the Ayah House in 1974 and therefore his parading and holding himself out as the Chief and Head of Ayah House of Ewoama and Okpoma is unconstitutional and contrary to the custom and native law of Nembe.

(2) N50,000.00 damages from the 2nd – 16th defendants for recognizing and encouraging the 1st defendant as the Chief and Head of Ayah House and from the 1st defendant in parading himself as Chief Ayah, and embarrassing and humiliating the 1st plaintiff and the Ayah House of Ewoama and Okpoma.

(3) Perpetual Injunction restraining the 1st defendant from parading, arrogating and holding himself out or performing the functions of the Chief and Head of the Ayah House and also restraining the 2nd to 16th defendants, their agents, servants and any person whomsoever in recognizing, encouraging, supporting or dealing with the 1st defendant as the Chief and Head of the Ayah House of Ewoama and Okpoma in the Brass Local Government Area.”

Pleadings were ordered filed and exchanged. Before the case proceeded to trial the defendants brought a Motion to dismiss the suit under order 24 of the High Court Rules of Rivers State (Procedure in lieu of Demurrer). The contention in the preliminary issue of law was that the facts deemed to be admitted coupled with the prayers contained in the statement of claim show that the plaintiffs’ case was a chieftaincy question which cause of action arose in 1974 and the High Court consequently lacks jurisdiction to hear and determine the suit. The learned trial Judge in his ruling held the view that it was a chieftaincy matter but construed the averments in the statement of claim as showing a cause of action that arose after 1/10/79 and held that the High Court has jurisdiction to hear and determine the suit. The defendants dissatisfied with the ruling of the High Court dated 5/6/89 appealed to this court. The defendants shall hereinafter be referred to as the appellants and the plaintiffs shall hereinafter be referred to as the respondents. The Notice of Appeal contains four grounds of appeal. The appellants sought leave to amend the grounds of appeal. The application to amend was granted by this court on 7th July, 1992. The appellants raised two issues for determination. They read as follows:-

“1. Whether the cause of action indeed arose before 1/10/79 when the 1979 Constitution of the Federal Republic of Nigeria came into force.

2. If so, whether the High Court had jurisdiction to entertain the suit.”

The respondents formulated four issues for determination. They are:

“1. Whether the plaintiffs’ cause of action was found on the deposition of the 1st appellant which occurred in 1974 or the wrongful exercise of the functions of the chief and head of Ayah house in 1980, 1986 and 1988.

2. Whether the cause of action in this suit arose before 1st October 1979.
3. Whether where the acts of the defendants involves series of repeated but separate wrongful acts the plaintiffs cannot found a cause of action on any of them.
4. Whether the High Court rightly held that it had jurisdiction over the post 1979 wrongful acts of the defendants.”

I find the two issues formulated by the appellants to be succinct and more related to the grounds of appeal than those of the respondents. Infact issue No.3 in the respondents’ Brief is meaningless. But be that as it may, I find it more convenient to treat this appeal in accordance with the two issues formulated by the appellants as they have encompassed the four grounds of appeal contained in the Notice of Appeal.

But before I do that, it should be pointed out that the appellants in their brief after formulating the issues for determination based their argument on the grounds of appeal. The rule is that once issues arising from the grounds of appeal are formulated, the grounds of appeal are subsumed by the issues so formulated. In other words after issues have been formulated the grounds of appeal give way to the issues formulated. The appeal should then be argued on the basis of the issues formulated.

The facts of the case are not in the main in dispute and they run thus: In 1974 the 1st appellant was dethroned as the Chief and Head of Ayah House of Ewoama and Okpoma. The 1st respondent was later installed as the Chief of Ayah and Head of Ewoama and Okpoma. The 1st and 2nd appellants with the support of the rest of the appellants were said to embark on continuous but distinctively separate acts which tend to subject the 1st respondent to ridicule, embarrassment, contempt or hatred. It was said that the 1st appellant at different occasions and periods, paraded himself as the Chief Ayah up to and including the date the writ of summons was taken out. The appellants brought a motion pursuant to order 24 rules 2 and 4 of the rules of the High Court of Rivers State 1987 on 3rd April, 1989. See pages 19 and 20 of the records – contending that the cause of action arose in 1974 and so the trial court lacked jurisdiction to hear the matter. The respondents at pages 21 to 22 of the records joined issues with the appellants contending on the contrary that the cause of action arose when the 1st appellant who had been dethroned in 1974 performed the functions of the Chief and Head of Ayah in 1980, 1986 and 1988.

As I have said above the learned trial Judge found as a fact that the cause of action giving rise to the present dispute arose after 1979 and the High Court therefore had jurisdiction. The lower court then dismissed the appellants’ Motion on 5th June 1989. As I have stated above this appeal is against the said ruling.

The second issue in the appellants’ brief is an offshoot of the 1st issue. I shall therefore take them together. It was submitted that the moment the averments in paragraph 20 (VI) and (VII) were caught by the objection the learned trial judge was duly bound to hold that the cause of action arose in 1974. Reference was made to pages 13 lines 18-35 of the record of proceedings. It was submitted for the appellants that the learned trial Judge instead of holding that the cause of action arose in 1974 tried to distinguish the case of Adeyeye v. Ajiboye (1987) 3 NWLR (Pt.61) 432. It must be mentioned that the case is Adeyeye v. Ajiboye and not Adeyeye v. Ajibola as contained in the appellants’ brief. It is the contention of the appellants that in the case in hand, the cause of action arose in 1974 when the 1st appellant was purportedly dethroned as Chief Ayah and the appellants refused to accept 1st respondent as the new Chief Ayah. It was submitted that in both cases, the cause of action arose before the 1979 Constitution. It was further submitted that the learned trial Judge without reason whatsoever, held that what sparked up the proceedings in the instant case were the cummulated events of 1980, 1986 and 1988. It was contended that this view of the learned trial Judge was wrong. It was submitted that the learned trial Judge had no reason to isolate the 1974 events since the averments in the statement of claim include paragraphs 20, 20(VI) and (VII). It was argued that the learned trial Judge had no duty to pick the incidence of post 1979 as the cause of action.