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In The Supreme Court of
On Friday, the 6th day of May
2005
Before Their Lordships
S.C. 64/2000
Between
And
Judgement of the Court
Delivered by
Akintola
Olufemi
Ejiwunmi
J.S.C
The main question that calls
for determination in this appeal is, whether the appellant as opposed to the
1st respondent was properly appointed by the 2nd
respondent, the Military Administrator of Imo State as the Traditional Ruler
of Avu Autonomous Community in
The said documents, which are on pages 58, 59 and 60 of the printed record,
are copied as follows: -
"Affidavit in support of the motion
I, Eze Benneth
Nwagbarakwe Okeke,
traditional ruler, residing at Avu in the Owerri
Local Government Area of Imo State, Nigerian citizen, do make oath and state
as follows: -
1.
That I am the 3rd respondent/applicant.
2.
That I am the Eze and traditional ruler
of Avu Autonomous Community in Owerri Local
Government Area of Imo State duly recognized by the Military Administrator
of Imo State.
3.
That I was duly recognised as the
Eze and traditional ruler of the said Avu
Autonomous Community by me said Military Administrator on 9/4/96. Copy of
certificate of recognition as Eze of Avu
Autonomous Community issued to me by the said Military Administrator is
annexed herewith and marked exhibit 'A'
4.
That the applicant commenced this proceeding more than twenty one
(21) days after my recognition as Eze and
traditional ruler of Avu Autonomous Community.
5.
That I swear to this affidavit truly and in accordance with the Oaths
Act 1990."
"Imo State government of Imo State of Nigeria (Section
3(1) and (2) of the Traditional Rulers and
Autonomous Communities Law, 1981)
certificate of recognition as
Eze of Autonomous
Community.
I, Navy Capt., James
N.J, Aneke
Fss,
Psc, Military
Administrator of Imo Slate of Nigeria, by virtue of the
powers conferred on me by
Section 9(1) and (2) of the
Traditional Rulers and Autonomous Communities Law
No. 11 of 1981
do hereby certify that you:
Eze Kenneth
N.
Okere, the
Duru Ihekaibeya vii
of Avu Autonomous
Community in the Owerri
Local Government Area of
Imo State, having been duly selected and
presented by
the people of the said Autonomous Community in
accordance with the tradition and usage of
that
Autonomous community and the provisions of
Section
5, 6, 7, 8, 9 and 10 of the Traditional Rulers
and Autonomous Communities Law, 1981
have accordingly
been recognized by me on behalf of the Government
of
Imo State as the Eze
and Traditional Ruler of the said
Avu
Autonomous Community.
Given under my hand
at
Owerri
this 9th day of April, 1996."
The 3rd respondent upon being served with the motion and the
supporting affidavit of the appellant also filed
a counter-affidavit. This ten paragraphed
counter-affidavit was sworn to by a Chief
Sydney Uju Amadi who
described himself as a Company Director,
on behalf of the 3rd respondent.
The relevant paragraphs of this counter-affidavit are as follows: -
"4.
That it is not true that the respondent/applicant was
recognized on 9th April 1996.
5.
That rather the respondent/applicant was recognized by a letter
SGI/CH/S20/S.4/1/163 dated 17th
April, 1996. That a certified true copy of the said letter is herein
exhibited and marked exhibit 'A'
6.
That a certificate of recognition does not
precede recognition.
7.
That the said letter was to the best of my knowledge delivered to the
respondent/applicant on 26/4/94 (sic) and he made it known publicly
in
8.
That it was after the Autonomous Community got to know that a person
had been recognized that the applicant/respondent commenced his application
for judicial review on 2/5/96 which was within 21 days.
9.
That the application for dismissal was filed to divert attention from
the live issues and delay the proceedings."
The letter referred to in paragraph 5 of me counter-affidavit of the 1st
respondent reads thus: -
"Government of
Office of the Secretary to the State Government
Political Affairs Bureau, Owerri.
17th April, 1996.
SG1/CH/S.20/S.4/1/163
His Highness Eze Benneth
N. Okere
Duru-Ihekaibeya
VII
Avu Autonomous Community
Owerri
Ufs:
Chairman Owerri Local Government
Owerri.
Recognition of the Eze of Avu
I am directed to inform you that the Military Administrator, Navy Capt. JNJ
Aneke fss,
psc+, fnse has
approved your recognition as the Traditional Ruler of Avu Autonomous
Community with the title: Duru-Ihekaibeya VII of
Avu Autonomous Community with effect from 9th April, 1996.
2.
Please accept the congratulations of the Secretary to the State
Government.
Sgd:
P.O.C. Okwara
For: Secretary to the State Government."
The application was then considered by the learned trial judge on the basis
of the facts disclosed by the affidavit and counter-affidavit including the
documentary exhibits quoted above.
Following addresses by learned counsel for the parties, the learned trial
judge delivered a well considered judgment. In the course of that judgment,
the learned trial judge made the following findings and I quote,
"(1)
That the 3rd respondent/applicant was
recognized on 9th April, 1996 as contained in the two exhibits
referred to supra.
(2)
That the application for judicial review having been initiated on
2/5/96 or 13/5/96 exceeded the 21 days provided for by Law No. 11 of
198 1.
(3)
The action is therefore time-barred in the sense set out in
Savannah Bank v. Pan Atlantic
(1987) 1 NWLR (Pt.49) 212 at 259 E-H where Oputa
J.S.C said inter alia if
a statute allows a certain
period of time to bringing litigation or for commencing proceedings, it is
known as statute of limitation ... a plaintiff may have a cause of action
but he loses the right to enforce that cause of action by judicial process
because the period of time laid down by the limitation law for bringing such
actions had elapsed."
The learned trial judge having regard to the principles of law involved in
the resolution of this dispute then came to the conclusion "that the cause
of action cannot be enforced by judicial review under
Section 25 (2) of the Traditional
Rulers and Autonomous Communities Law 1981 (Law No. 11 of 1981)."
The learned trial judge accordingly dismissed the application for judicial
review sought for by the 3rd respondent. As the 3rd
respondent was dissatisfied with that ruling of the learned trial judge, he
appealed to the court below. His appeal to that court was successful. In the
course of its judgment upholding the appeal, the court below formed the
following view of the provisions of
Section 25 of the Traditional Rulers and Autonomous Community Law No. 11 of
1981, when it said inter alia, thus: -
"That Section 25 sets out to give
a citizen the time limit within which to appeal. A Nigerian citizen has
unlimited right to apply for review of any of the executive acts
which adversely affect him and the state cannot
seek to abridge these fundamental right without running foul of the law by
trying to restrict him as to when he could have the initial access to the
court without running foul of the combined provisions of
Sections 6 (1) and (2) and (4), and
Section 236 of the 1979 Constitution of the Federal Republic of
Nigeria."
The court below then went on to opine thus: -
"When
a statute makes a provision which on the face of it is incomprehensible
because of its vagueness or acquivocative (sic) equivocate language, the
court will interpret it in a beneficial way. Difficulties are sometimes
encountered in trying to construe certain provisions particularly where
there appear to be some inconsistencies. In that case, the court should
avail itself of its liberal attitude to give interpretations that would give
life and meaning to the provision. In this case before us the only possible
meaning that will be in accord with rationality, commonsense and decency is
to say that the provision is anarchical and in its attempt to indulge in
double tongue and subtleties, it has said nothing, and the right of
undeniable access to the court without any limitation is still secured,"
The
appeal of the 1st respondent was therefore for the reasons given,
adjudged as meritorious by the court below.
The appellant, aggrieved by the judgment of court below, then appealed to
this court. Pursuant thereto, the appellant filed a notice of appeal
consisting of two grounds and which will not be set out in this judgment.
This is because the learned counsel for the appellant clearly reflected them
in the issues identified for the determination of the appeal in the
appellant's brief. Before the hearing, the 2nd,
3rd and 4th respondents also filed respondents" brief
upon being served with the appellant's brief. The 1st
respondent who also filed a cross-appeal has not filed a cross appellant's
brief, pursuant to his cross-appeal. That cross-appeal is therefore struck
out for want of prosecution. Also, it is apparent that learned counsel for
the 1st respondent was duly served with the appellant's brief but
he failed to file any brief for the respondent and also in support of the
cross-appeal. The cross-appeal has already been struck out and this appeal
will be heard without the brief of the 1st respondent.
At the hearing of this appeal, learned counsel who appeared for the parties
adopted and placed reliance on their respective briefs of argument.
For the appellant, the two issues identified for the determination of the
appeal are: -
"1.
Whether the Court of Appeal's decision which was based on issues not
pronounced upon, decided or canvassed at the High Court, and which were not
raised by any of the parties before and on which the parties were not heard
is cored and can stand.
2.
Whether Section 25 of the
Traditional Rulers and Autonomous Communities Law of
The 2nd, 3rd and 4th respondents in the
brief filed for them by their learned counsel, C.B.
Mbawuike, Senior State Counsel, Imo State Ministry of Justice,
adopted quite correctly the 1st issue identified as the first
issue in the appellant's brief.
Now, the thrust of the argument of learned counsel for the appellant in
respect of the first issue is that the judgment of the Court of Appeal
departed from the central issue raised before that court. The simple issue
before the court was, whether the trial court was right when it held that
time began to run from 09/4/96 when the appellant was recognized and
consequently the application for judicial review having not been filed
within the 21 days allowed by Section
25 of Law No. 11 of 1981 was statute barred. But, it is the
contention of learned counsel for the appellant that the court below failed
to consider the issue raised before it. Rather than considering the question
raised before it, the court below proceeded to
consider the constitutionality of
Section 25 of Law No. 11 of 1981. And learned counsel further argued
that as the court decided the appeal on the basis of this point, and as was
taken suo motu, the court should have invited submissions from
counsel. The failure to do so is a denial for fair hearing for the
appellant. In support of that contention, reference was made to the
following cases: Irom v.
Okimba
(1998) 3 NWLR (Pt.540) 19;
Badmus
v. Abegunde (1999) 11 NWLR (Pt.627) 493.
The other angle to the argument of learned counsel for the appellant to aid
his contention that the court below erred in upholding the appeal of the 1st
respondent is that the court below treated the appeal before it as if the
appeal was a fresh case before it. It is his
submission that an appellate court is not in
itself an inception of a new case. An appeal, it is submitted is generally
confined to the consideration of the record which comes from the lower
court. Learned counsel for the appellant therefore submits that an appeal is
an invitation to a higher court to review the decision of the lower court so
as to determine whether the lower court arrived at the right decision having
regard to the applicable law and the facts placed before it. See:
Oredoyin v.
Arowolo (1989) 4 NWLR
(Pt.114) 172 and C.C.B. Ltd. v. Nwokocha
(1998) 9 NWLR (Pt.564) 98.
The further point made by learned counsel is that an appellate court is only
obliged to consider the grounds of appeal filed against the decision of a
lower court. Where an appellate court went out of its way to determine an
appeal upon grounds other than the grounds of appeal filed against the
decision of a lower court, and then it had acted without jurisdiction. In
such a case, the decision of the appellate court would be set aside by a
superior court to that court. See: Abiola
v. Abacha (l991) 6
NWLR (Pt.509) 413;
Obaro
v. Dantata & Sawoe
Construction (1997) 10 NWLR (Pt.526) 676;
Ojimba
v. Ojimha (1996) 4 NWLR (Pt.440) 32 at 39
and
Okhideme
v. Toto (1962) 1 All NLR 309.
I have read the brief of the 2nd, 3rd and 4th
respondents in respect of issue 1, which they adopted from the appellant's
brief. I do not deem it necessary to review their arguments in support of
this issue. This is because the points canvassed therein are similar to
those canvassed in the appellant's brief.
I have earlier in this judgment set down the reasoning of the court below
that led to its decision and I am in no doubt that the submission made on
behalf of the appellant and the respondents are wholly right. It is indeed
not proper for the court below to have embarked on the consideration of
issues not raised before it and which were not raised by the parties. What
had happened in the court below, and with due respect to the learned
justices of the court, is a travesty of justice. To raise issues suo
motu, and without inviting the attention of counsel to address it on the
points so raised and then proceed to decide the appeal on such issues raised
suo motu by the court cannot therefore be right in the circumstances.
It is clear that the appeal before the court below had to do with whether
the application for the order of certiorari was sustainable having regard to
the provisions of Section 25 of the
Traditional Rulers and Autonomous Law of Imo State Law, No. 11 of
1981 which states: -
"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."
In my humble view, the above provisions do not need any esoteric
interpretation to understand its provisions. The learned trial judge upon
the facts before it, and which have not been faulted, came to the proper
conclusion with regard to the provisions of the law. I therefore must with
due respect, allow this appeal and set aside the judgment and orders of the
court below. What I have said above is enough to uphold this appeal. Suffice
it to say that Section 25 of the
Traditional Rulers and Autonomous Law of
Judgment delivered by
Idris
Legbo Kutigi J.S.C.
I have had the privilege of reading
in advance the judgment just delivered by my learned brother,
Ejiwunmi, J.S.C. I agree with his reasoning and
conclusions. I accordingly allow the appeal, set aside the judgment of the
Court of Appeal and restore that of the trial High Court. I endorse the
order for costs.
Judgment delivered by
Aloysius Iyorgyer
Katsina-Alu J.S.C.
I have read before now in draft the judgment pf my learned brother
Ejiwunmi, J.S.C, just delivered. I entirely
agree with it and, I have nothing to add.
Judgment delivered by
Dahiru
Musdapher J.S.C.
I
have had the honor to read before now the judgment of my Lord
Ejiwumni, J.S.C just delivered with which I
entirely agree. It is elementary law that needs no citation of any authority
that a court is not a Father Christmas. Its jurisdiction is
d generally limited to the
issues presented to it. The court cannot generally make pronouncements that
affect the parties before it without affording the parties the opportunity
to address them on it. See for example Oyekanmi
v. NEPA (2000) 15 NWLR (Pt.690)
414 S.C. My Lord in the aforesaid judgment has dealt comprehensively
and completely all the issues submitted to this court for the
determination of the appeal. I respectfully adopt them as mine and I
accordingly, allow the appeal, set aside the decision of the Court of Appeal
and restore the decision of the trial court. I abide by the order for costs
contained in the lead judgment.
Judgment delivered by
Sunday Akinola Akintan
J.S.C.
The main question raised in this appeal is whether a law fixing a time limit
within which any person aggrieved by the recognition given to a newly
appointed Traditional Ruler in Imo State could commence an action
challenging the appointment is proper and not in conflict with any of the
provisions of the constitution. The appellant was appointed as the
traditional ruler of Avu Autonomous Community in
Section 25 of the
Traditional Rulers and Autonomous Law of
"where
the Governor of the state 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...."
The 1st respondent, as an aggrieved party, filed an application
at the State High Court for an order of certiorari to quash the recognition
accorded the appellant by the State Governor. His application was however
not filed within the 21 days prescribed in the afore-mentioned Law. The
appellant moved the High Court for an order quashing the application on the
ground that it was incompetent since it was not filed within the time
prescribed by the said law. The High Court upheld the application and the
matter was struck out.
The 1st respondent appealed to the court below against the order
striking out the action. The court below allowed the appeal on the ground
that Section 25 of the said
Traditional Rulers Autonomous Community Law restricted the people's
access to court and as such it was in conflict with the provisions of
Section 6(1) & (2) & (4) and 236 of
the 1979 Constitution.
I have no doubt in holding that the sections of the 1979 Constitution
referred to do not proscribe any legislation prescribing the time within
which an action could be commenced. It is a notorious fact that chieftaincy
tussles in many parts of this country constitute a major cause of
unnecessary tensions within the communities, it is
therefore
quite appropriate for a State Government to enact laws prescribing time
limit within which disputes relating to appointment of chiefs within the
state could be challenged, as in the instant case. The court below was
therefore totally wrong in its decision that the Imo State Law in question
in this case was in conflict with any of the provisions of the 1979
Constitution.
In the result and for the reasons I have given above and the fuller reasons
given in the leading judgment prepared by my learned brother,
Ejiwunmi, J.S.C, the draft of which I have read,
I allow the appeal, set aside the judgment of the Court of Appeal and affirm
the judgment of the trial High Court delivered in the case. I also abide by
the order on costs made in the leading judgment.
Counsel
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