Sir Charles O. Nwaiwu & Ors V. Governor Of Imo State & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA SIMON TSAMMANI, J.C.A (Delivering the Leading Judgment)

This is an appeal against the decision of I.O. Agugua; J of the Imo State High Court sitting at Etiti delivered on the 22nd day of March, 2004 wherein the Learned trial Judge struck out the Plaintiff/Appellants’ statement of claim and consequently, dismissed the Suit in HME/17/2002 as being incompetent.

The Appellants’ claim as Plaintiffs before the lower court as stated in paragraph 35 of the statement of claim (pages 122-123 of the records) are as follows:

“35. Whereof the Plaintiffs claim against the Defendants jointly and severally as follows:

1. A declaration that the members of Umuihi King makers/ Cabinet are entitled to Identify, elect, select, appoint, install, and present the Eze of Umuihi Autonomous Community and/or to put in motion machinery for identification, election, selection, installation and presentation of the Eze of Umuihi Autonomous Community to the third Defendant.

(b) A declaration that the 1st to 4th Plaintiffs are entitled to present the Eze Elect of Umuihi Autonomous Community to the Chairman Ihitte/Uboma Local Government (3rd Defendant) and/or to put in motion the machinery for the presentation of the Eze Elect of the Umuihi Autonomous Community to the Chairman Ihitte/Uboma Local Government.

(c) A declaration that the 5th Plaintiff has been duely (sic) identified, elected, selected, appointed, installed in accordance with the custom and tradition of the people of Umuihi and presented to the Chairman Ihitte/Uboma Local Government (3rd Defendant) as the Eze of Umuihi Autonmous Community.

(d) A declaration that the 5th Plaintiff having been duely (sic) presented by the people of Umuihi Autonomous Community to the 3rd Defendant but is entitled to be recognized by the 1st Defendant as the Eze of Umuihi Autonomous Community.

(e) A declaration that the 4th Defendant is not entitled, under custom and tradition of the people of Umuihi Autonomous Community, to apply and/or to be elected as the Eze of Umuihi Autonomous Community.

(g) Injunction restraining the 1st Defendant, his servants, agents or workers from recognizing the 4th Defendant as the Eze of Umuihi Autonomous Community.

(h) Injunction restraining the 4th Defendant from parading and/or allowing himself to be paraded as the Eze of Umuihi Autonomous Community.

Based upon the above stated claims of the Plaintiffs/Appellants, the Defendants/Respondents proceeded to file statements of defence. The 1st and 2nd Respondents filed a joint statement of defence which is contained at pages 183 – 186 of the record of appeal. They however filed an Amended Statement of defence as contained at pages 250-256 of the records. The 4th Respondent also filed a statement of defence which is contained at pages 237 – 239 of the record of appeal. The 3rd Respondent had not filed any statement of defence. Before hearing in the case could commence, the 1st and 2nd Respondents filed a motion on Notice pursuant to Order 8 Rules 1, 2 and; Order 11 Rule 1, and Order 47 Rule 1 of the Imo State High Court (Civil Procedure) Rules, 1988, And Section 15 of the Imo State Traditional Rulers and Autonomous Communities Law, No. 3 of 1999. The said Motion which was by way of a Preliminary Objection prayed as follows:

“This Suit should be struck out as being statute barred, premature and no cause of action is disclosed in the action:

GROUNDS UPON WHICH OBJECTIONS ARE BROUGHT

1. The only contestant for the Traditional Ruler ship of the Community with the 4th Defendant, the 5th plaintiff has no locus standi to contest.
2. The action is premature as the action involves the exercise of statutory function which has not been exercised.
3. No cause of action has been disclosed in this action.
4. The action is statute barred in that it was not commenced within 21 days of the recognition of the 4th Defendant by the 1st Defendant.
5. The action was wrongly brought by way of writ of summons.

The Motion was supported by an affidavit of 19 paragraphs to which were annexed 12 exhibits marked “A”-“L”. The Applicants also filed a further Affidavit of 12 paragraphs to which they annexed 3 exhibits, marked as “M”, “N” and “O” respectively. See pages, 197 – 219 of the record. The 5th Defendant/Appellant filed a counter affidavit of 20 paragraphs in opposition to the preliminary objection to which he attached three (3) exhibits marked “A”, “B” and “C” respectively.