Eleme Chiefs Dedicate Judgement to Late Monarch, Following Supreme Court Resolution on Oneh-eh Eleme Tussle

 

By Nwafor Oji Awala.

Following a Supreme Court Resolution on Oneh-eh Eleme Tussle, the Eleme Council of Chiefs has dedicated its victory to the memory of the immediate past traditional ruler of Eleme land, HRM Emere Samuel Oluka Ejire. Led by His Royal Majesty, Emere Philip Osaro Obele, Oneh-eh Eleme XI, the Eleme Council of Chiefs visited the home of the former monarch in Agbonchia to dedicate the judgement to the memory of the late king.

Members of the council were received by the eldest son of the late monarch, Prince Awalanta Ejire, who warmly ushered them into what used to serve as Royal Court of late King Ejire, but now his final rest-place.

The council said the name of King Ejire will be written in gold considering the role he devotedly played to ensure that the Eleme chieftaincy institution was not battered and distorted by usurpers, stating that the selection process of Oneh-eh Eleme is no more to be balkanized and ridiculed by throne buccaneers. 

 

The judgement was delivered by the Supreme Court on Friday, the 8th day of March, 2024 as exposed below.

Nwafor Oji Awala

…………………………………………………

THE JUDGEMENT

H.R.H. SAMUEL OLUKA EJIRE (The Regent and Chairman, Eleme Council of Chiefs) vs CHIEF JOHNSON EMERE NKPORNWI (JP)

(2024) 30 E-WRN / 02 (SC)

Supreme Court

Between

H.R.H. SAMUEL OLUKA EJIRE (The Regent and Chairman, Eleme Council of Chiefs) - Appellant(s)

1. H.R.H. SAMUEL OLUKA EJIRE (The Regent and Chairman, Eleme Council of Chiefs)

2. THE ELEME COUNCIL OF CHIEFS (Ogbo Nkporon, Eleme)

And

CHIEF JOHNSON EMERE NKPORNWI (JP) - Respondent(s)

On March, 8th 2024

SC.99/2010

Justices

ADAMU JAURO (Presided and delivered the leading judgment)

HELEN MORONKEJI OGUNWUMIJU

IBRAHIM MOHAMMED MUSA SAULAWA

TIJJANI ABUBAKAR

EMMANUEL AKOMAYE AGIM

Facts & History

The respondent as plaintiff instituted suit No. NHC/26/2003 at the High Court of Rivers State claiming the following reliefs:

“i. A declaration that the plaintiff is a fit, proper and qualified person/candidate to contest for the office of the One-eh-Eleme i.e. The King of Eleme Kingdom, under the Eleme native law and custom.

ii. A declaration that the plaintiff has, as required by the Eleme native law and custom, indicated and demonstrated his willingness and intention to contest as a candidate in the selection, election and installation of a new One-eh-Eleme to the defendant and the entire Eleme Kingdom.

iii. A declaration that the plaintiff has satisfied all the essential traditional pre-requisites as required by the Eleme native law and custom of a candidate selection and election etc. to the throne of the One-eh-Eleme i.e. The King of Eleme Kingdom.

iv. A declaration that the practice and procedure presently adopted by the defendants in the exercise to select, elect and install to the vacant throne of the One-eh-Eleme is highly prejudicial, discriminatory, exclusive and biased of the plaintiff and his teaming supporters.

v. An order of injunction restraining the defendants, servants, agents etc. from scheming the plaintiff out of the race as a candidate in the exercise for the selection, election and installation One-eh-Eleme i.e. The King of Eleme Kingdom.”

Due to the installation of the 1st appellant as the One-eh-Eleme, shortly after instituting the action, the respondent filed an application seeking a mandatory and restorative order to the stool and reversal of the election of the 1st appellant, pending the determination of the substantive suit. The application was heard and dismissed by the trial court in its ruling delivered on 18th February, 2004. In dismissing the said application, the trial court held that the respondent had not fulfilled one of the necessary preconditions to contest for the position of One-eh-Eleme since by his own averments in his statement of claim, (1) one of the preconditions to contest for the stool is that a contestant must be the One Eta or Paramount Ruler of one of the ten clans making up Eleme and (2) the position of the respondent as the One-Eh-Onne (Paramount Ruler of Onne) which would have qualified him to contest for the position of One-eh-Eleme is the subject of litigation in suit no. NHC/12/2003. It was also held that the right of the respondent to assert that he was a fit, proper and qualified person/candidate to contest for the office of the One-eh-Eleme could only arise in the future if suit no. NHC/12/2003 is decided in his favour.

The appellants on their part filed a notice of preliminary objection challenging the justiciability of the suit against the 2nd appellant herein, for not being a juristic person. The preliminary objection was heard and upheld by the trial court.

 

The appellants also filed a motion on notice. In the said motion, the appellants sought for the following:

“1. An order of this honourable court dismissing this suit in its entirety.

2. And for such order or further orders as this honourable court may deem fit to make in the circumstances.”

The grounds upon which the application was brought as set out on the face of the motion are as follows:

“i) The plaintiff lacks locus standi to institute this suit.

ii) The plaintiff's reliefs or claims are not justiciable and therefore not grantable or maintainable.”

The application was supported by an affidavit. The respondent did not file a counter-affidavit, but challenged the application on points of law. After taking arguments from the respective counsel for the parties, the learned trial Judge granted the reliefs sought in the application, thereby dismissing the suit. In holding that the respondent lacked locus standi, the court relied largely on its earlier ruling delivered on 18th February, 2004. It was held that the respondent could only be qualified to contest after suit no. NHC/12/2003 is resolved. It was also held that the suit disclosed no reasonable cause of action.

Dissatisfied, the respondent herein filed an appeal to the Court of Appeal where his appeal was allowed.

Dissatisfied, the appellant filed an appeal to the Supreme Court.

 

In the Supreme Court of Nigeria, Holden at Abuja on Friday, the 8th day of March, 2024.

Before Their Lordships: Helen Moronkeji Ogunwumiju; Ibrahim Mohammed Musa Saulawa; Adamu Jauro; Tijjani Abubakar and Emmanuel Akomaye Agim, Justices, Supreme Court.

SC. 99/2010

Between:

1.  H.R.H. SAMUEL OLUKA EJIRE                      APPELLANTS

    (THE REGENT AND CHAIRMAN, ELEME COUNCIL OF CHIEFS)

2. THE ELEME COUNCIL OF CHIEFS (OGBO NKPORON, ELEME)

And

CHIEF JOHNSON EMERE NKPORNWI (JP) RESPONDENT

(Lead Judgement delivered by Honourable Adamu Jauro, JSC)

 

Facts:

The Respondent instituted an action against the Appellants in Suit No. NHC/26/2003 at the High Court of Rivers State, seeking inter alia, a declaration that the Respondent is a fit, proper and qualified person/candidate to contest for the office of the One-eh-Eleme, that is, the King of Eleme Kingdom, under the Eleme native law and custom; a declaration that he has satisfied all the essential traditional prerequisites as required by the Eleme native law and custom, for the selection and election to the throne of the One-eh-Eleme. He also sought a declaration that the procedure being adopted by the Appellants in the selection and installation to the vacant throne of the One-eh-Eleme is highly prejudicial and discriminatory to the Respondent, and an order of injunction restraining the Appellants from scheming the Respondent out of the race as a candidate in selection exercise for the King of Eleme Kingdom.

Due to the installation of the 1st Appellant as the One-eh-Eleme, shortly after the Respondent instituted the suit, the Respondent filed an application seeking a mandatory and restorative order of the court reversing the election of the 1st Appellant pending the determination of the suit. The application was heard and dismissed by the trial court. In its ruling delivered on 18th February, 2004, the trial court held that the Respondent had not fulfilled one of the necessary pre-conditions to contest for the stool of the One-eh-Eleme, since by his own averments in his statement of claim, one of the pre-conditions to contest for the stool is that a contestant must be the Paramount Ruler of one of the ten clans making up the Eleme Kingdom, and the position of the Respondent which would have qualified him for the position of One-eh-Eleme is still under litigation in another suit in suit No. NHC/12/2003 pending before the Nchia Division of the High Court of Rivers State.

 The trial court also held that the right of the Respondent to assert that he was a qualified candidate to contest for the stool could only arise in the future, if Suit NHC/12/2003 is decided in his favour.

Aggrieved, the Respondent appealed to the Court of Appeal in Appeal No. CA/PH/92/2005. The Appellants on their part filed a Notice of Preliminary Objection before the trial court, challenging the justiciability of the claim against the 2nd Appellant, on the ground that it is not a juristic person. The preliminary objection was upheld by the trial court. The Respondent equally filed an appeal in CA/PH/190/2005, against the ruling upholding the preliminary objection. Both appeals were consolidated, heard together and dismissed by the Court of Appeal.

Meanwhile, in the suit before the trial court, the Appellants filed a motion on notice seeking an order dismissing the suit in its entirety. The application was premised on the grounds that the Respondent lacked locus standi to institute the action, and the reliefs sought in the action were not justiciable. In its ruling on the said application, the trial court upheld the preliminary objection and dismissed the suit for lack of locus standi and lack of cause of action. In holding that the Respondent lacked locus standi, the trial court relied largely on its earlier ruling of 18th February, 2004. Dissatisfied, the Respondent appealed to the Court of Appeal. The Court of Appeal allowed the appeal, set aside the ruling of the trial court and restored Suit No: NHC/26/2003 on the cause list of the trial court. Dissatisfied, the Appellants appealed to the Supreme Court.

Issue for Determination

After a review of the issues submitted by the parties, the Apex Court formulated a sole issue for determination as follows:

Whether the lower court was right to set aside the ruling of the trial court, wherein it was held that the Respondent lacked locus standi to institute Suit No. NHC/26/2003.

Arguments

Counsel for the Appellants submitted that the Court of Appeal had in its earlier decision in Appeal No. CA/PH/190/2005 between the same parties, held that the 2nd Appellant is not a juristic personality capable of suing and being sued, and it ought to have taken judicial notice of the said decision and decline jurisdiction, as a court cannot exercise jurisdiction over a non-juristic person. Counsel cited the case of YOUNG v BRISTOL AEROPLANE CO. LTD (1944) 2 ALL ER 293. He argued further that the 1st Appellant having been sued as the Regent and Chairman of the 2nd Defendant was incapable of being sued in that capacity, thus, occasioning a situation where there was no Defendant against whom the Respondent could maintain the action.

Counsel argued that by the Respondent’s own averments, particularly paragraph 10 of the Statement of Claim, the position of One-eh-Onne which would have entitled him to contest for One-eh-Eleme is subject of litigation in another suit; hence he disclosed no interest in the One-Eh-Eleme title. It was submitted that this amounted to an admission against the interest of the Respondent, and based on the principle of law that courts are bound by the case put forward by parties in their pleadings, the Respondent must be held to the case he put forward in his Writ of Summons and Statement of Claim.

Counsel for the Respondent argued to the contrary, that the Court of Appeal was right in holding that the trial court took extraneous matters into consideration in arriving at the decision that the Respondent lacked locus standi. Counsel submitted that the Court of Appeal rightly held that the trial court ought to have limited itself only to the Statement of Claim, in determining whether the Respondent had the requisite locus standi to institute the action. He submitted that the averment in paragraph 10 of the Statement of Claim, to the effect that there are rival claims to the One-eh-Onne stool, should not be considered in isolation, and a holistic consideration of the averments contained therein would show that the Respondent has locus standi. Counsel finally submitted that the ruling of 18th February, 2004 could not operate as issue estoppel, because the application in respect of which the ruling was delivered was for a mandatory and restorative injunction, not an application in respect of the Respondent’s locus standi.

Court’s Judgement and Rationale

Deciding the sole issue, the Supreme Court held that locus standi is the legal right and capacity of a party to an action to be heard in litigation before a court of law or tribunal, and having the right capacity or locus standi is a condition precedent to the court assuming jurisdiction to determine the case on merit. The Court held that for a Plaintiff to bring an action before a court of law, he must show that he has locus standi by displaying sufficient connection to, and harm, or possibility of harm from the action challenged, and where this is absent, the court would lack jurisdiction for want of locus standi on the part of the Plaintiff, as there would be no dispute for the court to adjudicate over – UWAZURUONYE v GOVERNOR OF IMO STATE & ORS (2012) LPELR — 20604 (SC).

The Apex Court held further that as a general rule, when the issue of locus standi or any other issue bordering on the jurisdiction of court is raised before evidence is led, the only processes to be considered by a court in the determination of whether it has jurisdiction are the originating processes and the reliefs sought therein. Where the action was commenced by a Writ of Summons, the Statement of Claim must determine the locus standi and a cause of action.

Their Lordships noted that the Court of Appeal had held that it was wrong for the learned trial Judge to conclude that the Respondent lacked locus standi to institute the action by referring and relying on its ruling delivered on 18th February, 2004, where the trial court had earlier held that it ought not to grant a restorative injunction in favour of the Respondent, who from his own affidavit evidence, had not fulfilled the necessary pre-qualification requirements of being a  candidate for the stool of the Onne-eh-Onne which was still in dispute before the court.

In examining the correctness or otherwise of the finding of the Court of Appeal, the Apex Court held that before arriving at the conclusion that the Respondent had not fulfilled the conditions to contest for the stool in its ruling of 18th February, 2004, the trial court had combed through the averments in the Statement of Claim and duly considered the relevant paragraphs in the Statement of Claim; it was thus, incorrect for the Court of Appeal to state that the trial court did not consider the averments in the Statement of Claim, or that the court considered extraneous materials before ruling that the Respondent lacked locus standi.

The Apex Court held that the Statement of Claim was considered in the ruling delivered on 18th February, 2004, and the same issue which had been determined in the earlier ruling, in essence arose for determination in the later application.

The Supreme Court, relying on its decision in P.D.P v Lawal (2023) 12 NWLR (PT. 1898) 205 AT 245, PARAS E — G, held that courts of law have a duty to be consistent in their findings and decisions, and having already made a determination that the Respondent, at the time of instituting the suit, did not meet the precondition to be able to contest for the position of One-eh-Eleme, the trial court was duty bound to reach the same decision in respect of the application challenging the issue of locus standi.

The Court held further that the only remedy for the Respondent in respect of the finding that he did not meet the pre-conditions to contest for the stool was for him to appeal, and he did so by filing Appeal No. CA/PH/92/2005, but the appeal was dismissed. The appeal having been dismissed, the finding became conclusive and binding between the parties. The Apex Court held that since the Court of Appeal had dismissed the appeal in respect thereof, the trial court was right to rely on its earlier decision, in which it had considered the relevant processes and determined the issue submitted for its determination.

The Apex Court thus, resolved the sole issue in favour of the Appellants. The Court however, found that since the suit had not been heard on the merits at the trial court and since the trial court rightly held that the right of the Respondent could arise in the future if the suit pending before the Nchia Division of the High Court of Rivers State in Suit NHC/12/200 to determine the qualification of the Respondent, is decided in the Respondent’s favour; the trial court ought to have struck out the suit rather than dismiss the same. The Supreme Court thus, substituted the order of dismissal of the suit with an order striking out same.

Appeal Allowed. Judgement of the Court of Appeal set aside and the ruling of the trial court dismissing the suit restored, however, substituted with an order of striking out.

Representation

Akin Adesomoju for the Appellants.

A. Labi-lawal with B. L. Benson for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR)(An affiliate of Babalakin & Co.)

This appeal is against the decision of the High Court of Rivers State (after now Lower Court) contained in a ruling delivered on the 31/01/05 in suit No. NHC/26/2003. The ruling was in respect of a motion filed by the Respondents herein in which they challenged the locus standi of the Appellant to have instituted the action and that the claims were not justiceable. -The lower Court upheld the challenge and so dismissed the Appellant’s suit in the ruling.

A Notice of Appeal was filed for the Appellant on the 3/2/05 against the ruling containing three (3) grounds of appeal. With the leave of the court, three (3) additional grounds of appeal were filed and as required by the practice in the court, briefs of argument were filed for the parties to the appeal. Once more with the leave of the court, the Appellants brief of argument filed on the 18/3/08 was deemed properly filed on 22/9/08 while the Respondents’ brief filed on 27/2/09 was deemed filed on 15/6/09, the date the appeal was heard. The Appellant’s reply filed on 6/4/09 was also deemed properly filed on the 15/6/09. At the hearing of the appeal, the briefs of argument were adopted as submissions in support of the respective positions of the parties and we were urged to allow or dismiss the appeal as the case may be, by learned counsel. The learned senior counsel for the Respondents, Mr. Wifa SAN made oral amplification of some of the points in the Respondents’ brief.

From the six (6) grounds of appeal, three (3) issues were distilled and submitted for determination in the appeal by Mr. FA Oso, SAN at page 2 of the Appellant’s brief of argument as follows:-

“(i) Whether the Appellant had the standing to have instituted this suit against the Respondents.

(ii) Whether the Appellant’s suit is actionable or disclosed a cause of action.

(iii) Whether or not the court below can depart from his interlocutory ruling.”

On his part, Mr. B.M. Wifa, OFR, SAN submitted that the following two (2) issues arise for determination in the appeal, at page 3 of the Respondents brief of argument:-

“1. Whether the court below was right in relying on its interlocutory decision in dismissing Suit NHC/26/2003.

Whether from the facts averred in the Statement of Claim of the Appellant, the Court below was right in holding that the Appellant lacked the requisite standing to institute suit NO. NHC/26/2003 and also that the Appellant disclosed no reasonable cause of action.”

It may be noticed that the only difference between the two set of issues raised by the learned senior counsel for the parties is the style or manner of the formulation. The real substance in the issues is the same such that an answer to one set will completely and fully dispose of the other set.

However the crucial and germane issue that calls for determination in the appeal is in my view, the Appellants’ issue (i) and the Respondents’ issue 2 which is a combination of the Appellants’ issue (i) and (ii). The out come of the determination of the mentioned issues would, which ever way it goes, render the Appellants’ issue (iii) and Respondents’ issue 1 merely academic for the purposes of the appeal. I therefore intend to consider first, the submissions on the earlier mentioned issues in the determination of the appeal. Before a review of the submissions by learned counsel a brief statement of the facts leading to the decision appealed against would provide a good foundation for the appreciation of the issues arising in the appeal.

As Plaintiff in suit NO. NHC/26/2003, the Appellant had vide a motion on notice dated and filed on 26/3/2003, sought the following reliefs from the Lower Court. (as set out on page 1 of record of appeal):-

“1. A declaration that the Plaintiff is fit, proper and qualified person to contest for the office of One-eh-Eleme.

A declaration that the Plaintiff has demonstrated his willingness to contest for the office of One-eh-Eleme.

A declaration that the Plaintiff has satisfied the essential traditional rites as required by Eleme Native Law and custom of a candidate seeking election to the throne of One-eh-Eleme.

Restoratory, Mandatory and Injunction Order of this Honourable Court from scheming the Plaintiff out of the race as a candidate in the exercise for the selection of a new One-eh-Eleme i.e. The King of Eleme Kingdom.”

The Respondents opposed the said motion on two (2) grounds as follows:-

“a Disputing the issue of service of the processes in the suit on the Respondent; and

b. Disputing the qualification of the Appellant as a candidate for the said selection and election of the One-eh-Eleme, therefore questioned the locus standi of the Appellant.

After taking arguments in respect of the motion, the Lower Court in a ruling delivered on 18/2/04, dismissed the motion holding that the Appellant was not entitled to the reliefs sought in the said motion. After an appeal against that decision by the lower court filed by the Appellant was dismissed by this court in appeal NO. CA/PH/92/2005 on 18/11/2008, the Respondents filed the motion leading to this appeal.

I now return to the arguments of the learned counsel on the issues identified earlier.

As a reminder, the 1st issue is whether the Appellant had the locus standi to have instituted the suit against the Respondents.

For the Appellant after a definition of the term “locus standi” it was submitted that whether or not a plaintiff has locus standi in a suit is determinable from a totality of all the elements in the statement of claim. The case of OWODUNNI V. REG. TRUSTEES OF C.C.C. (2000) 10 NWLR (part 675) 315 at 354 – 5 was cited in support of the position that it is the statement of claim that would disclosed the interest and how it arises from the subject matter of the action.

The learned senior counsel for the Appellant then set out paragraph 1 – 8 and 13 of the Appellants statement of claim and said that the averments are to the effect that the Appellant is a fit, proper and qualified person by the measure and prescriptions of the Eleme native law and custom relating to the election, selection and installation of Onne-eh-Eleme. That the Appellant had pleaded how in 1989 he was made a chief of Alejor and became the Onne-eh by the unanimous decision of the people of Onne. According to him, though the lower court rightly examined the Appellants’ locus standi from the statement of claim, it was wrong to have in its ruling referred to the affidavit and the ruling delivered earlier on the question of the Appellants’ standing to sue since the issue was to be determined on the statement claim alone. He relied on BOLAJI V. BAMGBOSE(1986) 4 NWLR (part 37) 632 and MOMOH V. OLUTU (70) 1 ALL NLR 117 and argued that the reference by the lower court to the affidavit and ruling on the previous application for mandatory/restoratory injunction was improper in law. Learned senior counsel emphasized that the Appellant had pleaded in paragraph 5 of the statement of claim that he was a chief of Alejor which qualifies him to contest for the Onne-eh-Eleme stool.

On the sub issue of the statement of claim disclosing a jusitceable and grantable cause of action, it was submitted that the Appellants’ statement of claim disclosed his rights or interest which have been or are in the charge of being violated, invaded or adversely affected by the acts of the Respondents. That such complaint would be deemed to be sufficient interest to give him the locus standi to sue. Paragraphs 5,6,7,8,9,10,11 and 12 of the statement of claim are said to have shown sufficient interest and good cause of action. ADESANYA V. PRESIDENT OF F.R.N (1981) 5 SC 112, ELESO V. GOVT. OF OGUN STATE (1990) 2 LNWLR. (part 133) 420 and OWODUNNI’S case (supra) were cited for the submission.

Furthermore, it was contended that the Appellant had by his statement of claim pleaded that the method adopted by the 2nd Respondent in the selection and election for the stool of Onne-eh-Eleme was immical and injurious to his candidature and so has shown that he had civil right that was threatered. In addition, it was submitted that a cause of action simply means a factual situation the existence of which entitles one person to obtain from the court a remedy against another person; on the authority of the OWODUNNI case (supra). It comprises every fact though not every piece of evidence which it would be necessary for the Plaintiff to prove, if traversed, to support his right to judgment. Learned senior counsel then maintained that the -Appellants’ pleadings had- disclosed his personal interest and how it would be affected or injured by the acts of the Respondents thereby showing – locus standi and justiceable/good cause of action. Finally, we were urged by him to resolve his issues I and 2 in favour of the Appellant. From the pattern of the above submissions, it would be clear that the learned senior counsel for the Appellant had argued his issues (i) and (ii) which he called 1 and 2, together in the brief of argument without any indication.

The Respondents submissions on their issue 2 is to the effect that the Appellant failed to state in his’ statement of claim, how his interest in the chieftaincy title arose. It was the case of the learned senior counsel for the Respondents that the Appellant had stated in paragraph 10 of his statement of claim that there are rival claims to the Onne-eh-Onne Stool of his village which resulted in the pending suit NO. NHC/12/2003 in the lower court. He said the Appellant not being a substantive Onne-eh-Onne by his own pleadings, was not qualified to contest for the stool of the Onne-eh-Eleme and was in fact not a candidate for the selection to fill the Stool. According to him, the Appellant cannot be said to have any interest which he could protect by an order of the lower court as the only interest he might have dependent on the decision in suit NO. NHC/12/2003.

That the future interest in the said suit could not have given and cannot give the Appellant the right to institute the action against the Respondents. It was his further argument that the interest asserted by the Appellant was not real but superficial and so he had no locus standi and also failed to disclose a cause of action. He also submitted that the lower court was right in its ruling because the question of locus standi is merged in the issue of cause of action and we were urged by him to so hold. The cases of THOMAS’ V. OLUFOSOYE (1986) 1 NWLR (part 18) 669 at 685, EBBA V. OBODO (2000) 10 NWLR (part 675) 387 at 406 and OWODUNNI (supra) were cited in support of the submissions and it was finally submitted that the lower court had properly examined the Appellant’s statement of claim before coming to its conclusion. In summary we were urged to dismiss the appeal and affirm the decision of the lower court. In his reaction to the arguments for the Respondent on their issue 2, the learned senior counsel for the Appellant had pointed out in the Reply brief that no wherein in the Appellants’ statement of claim was his selection for the stool of the Onne-eh-Eleme made contingent to the success of the case NO. NHC/12/2003 pending before the lower court. The other part of the Appellants’ Reply brief on the issue was a further argument of the Appeal by the learned senior counsel and not a response or answer to any fresh or new points raised in the Respondents’ brief of argument. It is for that reason well out side the purview, limits and required purposes of a Reply brief under order 17, Rule 5 of the Court of Appeal Rules, 2007. For emphasis, a Reply brief is not an avenue to argue or canvass further arguments in respect of the appeal by an Appellant. Its -limited requirement and purpose is to answer or deal with all new points arising from the Respondents’ brief and no more.

I would start the determination of this issue by saying that I entirely agree with the learned senior counsel for the parties that the law is beyond argument on the definition and requirements of the interest to be shown for the purposes of locus standi in any given case. As established in the cases cited by the learned senior counsel in their respective briefs of argument, in simple language, locus standi means the legal capacity to initiate and properly invoke the judicial power and authority of a court of law in a case or over a dispute. It has also been defined as the right of a party to appear and be heard on the question before any court or tribunal. See ADESANYA V. PRESIDENT F.R.N. (supra) at page 148. In addition, the Irikefe, JSC(as he then was) in the case of An. GEN. KADUNA STATE V. HASSAN (1985) 2 NWLR (part 453) at r496 defined the term “locus standi” as the right or competence to institute proceedings in a court of law for redress or assertion of a right enforceable at law.

In legal parlance, the term locus standi is often used interchangeably with terms such as “standing” or “title to sue” which connote the entitlement, capacity or competence to initiate proceeding in a court of law for assertion of right and redress.

The learned senior counsel are also right and I once more agree with them, that the law is settled that in the determination of the question or issue of locus standi raised in a given case it is the statement of claim filed by the Plaintiffs that is the sole determinant.

In other words, it is the statement of claim filed that would solely determine whether or not the ‘plaintiff/s has/have legal capacity or competence to institute the action. In addition to the cases cited by the learned counsel for the Appellant on the point, see also ADEFULU V. OYESILE (1989) 5 NWLR (part 122) 377, NWOSU V. OFFOR (1991) 3 NWLR (part 173) 275, ADESOKAN V. ADEGOROLU (1991) 3 NWLR (part 179) 293, ADESANOYE V. ADEWOLE (2006) ALL FWLR (part 340) had at 1025. The  Supreme Court in the case of AJILOWURA V. DISU (2006) ALL FWLR (333) 1613 at 1638 restated the position of the law bluntly as follows:-

“in the determination of locus standi, the plaintiff’s statement of claim should be the only process that should receive the attention of the court. It is the cynosure of the exercise. A defendant who challenges in limine the locus standi of the plaintiff is deemed to accept as correct all the averments in the plaintiff’s statement of claim.”

Furthermore because the issue of locus standi relates to the capacity or standing to sue or initiate proceedings, it is intricately interwoven with and involves the competence of the court to formally take cognisance of and adjudicate over such proceedings. Its absence, would result in robing the court of the authority and powers to adjudicate over the matter. Put another way, the lack of locus standi on the part of a plaintiff/s would automatically take away from or deny the court the jurisdiction to entertain a matter. OWNERS M. V. BACOLINER V. ADENIYI (1993) 2 NWLR (part 274) 195, EMEZI V. OSUAGWU(2005) 2 SC (part 11) 128; NIGERIA PORTSPLCV. OKOH (2006) ALL FWLR (part 307) 1145 at 1162.]

Another known principle of law in respect of the issue of locus standi is that its determination would necessarily involve a consideration of whether or not a reasonable cause of action was disclosed by the aggregate of the facts pleaded in the statement of claim. The authorities cited by the learned senior counsel on the definition of the term “cause of action” clearly demonstrate this position. The judicial definition of a cause of action is that it is a fact or combination facts which when proved would entitle a Plaintiff to a remedy against a defendant in a court of law. BELLO V. ATT. GEN. FAWEHINMI V. AKILU (1987) 11 – 12 SCNJ 151.

I have observed that from the judgment appealed against the lower court had relied primarily on its decision in the ruling delivered on the 18/2/2004″as its reason for dismissing the Appellants’ suit. In the said ruling, the lower court had held that the Appellant did not fulfill the precondition for qualification to contest for selection to fill the vacant stool of Onne-eh-Eleme, i.e. being an Onne-eh-Onne because of the pendency of suit NO. NHC/12/2003. That court had in the said ruling held thus:

OYO STATE (1986) 5 NWLR (part 45) 828, EGBE V. ADEFARASIN (1987) 1 NWLR (part 47) 20, EGBUE V. ARAKA (1988) 3 NWLR (part 84) 598. Then a reasonable cause of action has been defined as a cause of action which (when the assertions in the statement of claim are considered) has some chance of success.

In determining whether a statement of claim discloses a reasonable cause of action, the court ought to examine the statement of claim, and see whether on the face of it, it discloses facts which if proved, would entitle the plaintiff to a remedy and not whether it discloses any ground of law to support the claim. OSHOBOJA V. AMUDA (1992) 1 NWLR (part 250) 690; OGBIMI V. OLOLO (1993) 7 SCNJ 447. In line with the above principle of law, and nature of the issues of locus standi and reasonable causes of action, it is unavoidable and therefore necessary for the court to consider the cause of action in the determination the issue of locus standi.

“………..The Plaintiff/Applicant court has to show he was a contestant or qualified to be a contestant before he can be granted the relief in prayer 1 of the motion paper. This relief is what the court has to determine in the substantive suit. Such a relief cannot be granted at this interlocutory stage. I will therefore refuse to grant the relief in the prayer.”

The prayer” the lower court was referring to in the ruling was the prayer contained in the Appellants’ motion, the subject of the ruling which was as follows:-

“1. An order of this Honourable Court restoring the parties in this matter to their pre 21/3/2003 position as contestants for the vacant throne of the Onne-eh-Eleme (King of Eleme) pending the determination of substantive suit.”

The import of the above finding by the lower court was that the issue of the position of the parties as contestants to the vacant Onne-eh-Eleme Stool before 21/3/2003 was to be decided at the trial of the substantive suit. It would then be strange and even curious for that court to at that interlocutory stage turn round in the same ruling to hold that the Appellant was not qualified as a candidate to contest for the selection to fill the said Onne-eh-Eleme. It would even appear more curious to me for the sane court to rely solely on that decision contained in a ruling at the interlocutory stage as reason for the dismissal of the Appellants suit on the ground of lack of locus standi.

Perhaps I should point out here that though the ruling delivered 18/2/04 is not on appeal here, because that court had made it the ratio decidendi of the ruling appealed against in this appeal, it has become inevitable that the same be referred to in the course of determining the appeal. There was no part of that ruling at which the court made a finding that the Appellant lacked the locus standi to have instituted the suit against the Respondents which was an issue to be determined at the trial of the substantive suit as acknowledged by that court in the portion of the ruling set out above. I should also mention that the appeal NO.CA/PH/92/2005 filed by the Appellant against the ruling delivered on 18/2/04 was dismissed solely on the ground that there was no proof of proper service of the processes in the lower court on, the 2nd Respondent in the appeal (also 2nd Respondent here). The records of the court in respect of the appeal show that the lead judgment of the court was delivered by SAULAWA, JCA on the 18/11/08.

In these circumstances, the lower court did not properly examine fully, the facts pleaded in the Appellants’ claim, as it was required to do by the authorities set out above, in the determination of the motion before it but merely made passing references to them in the course reviewing counsel’s submission son the application. The Lower Court made reference to the paragraphs of the affidavit in support the Appellants’ motion for the restorative/mandatory injunction which it dismissed in the ruling or 18/2/2004 and entirely relied on them to dismiss the Appellant’s case in the decision appealed against. In the ruling of 18/2/04 the lower court did not however strike out the case of the Appellant pending before it on the ground that his application for restotatory/mandatory injunction was dismissed for lack of locus standi on his part to institute the action.

Its decision in the said ruling was to the effect that Appellant was not entitled to the relief sought in the application and so it was dismissed. The Appellant’s suit remained pending before the lower court and that was why the Respondent had to file the motion praying the court to dismiss it on the two (2) grounds of lack of locus standi and that the claims or reliefs were not justiceable. In the determination of the respondents’ motion, the lower court had the duty to fully examine and scrutinize all the facts pleaded by the Appellant in the statement of claim, on the record before arriving at a decision thereon. That duty is not in my view, properly discharged by mere reference and reliance on the previous decision of that court delivered in a motion for injunction which did not determine the issues raised in the later motion filed by the Respondents. The Lower court clearly abdicated its primary function and duty to properly or at all, appraise and consider the merit of the application before it as required by law and chose the simplistic but wrong approach of being bound by its previous interlocutory decision for reason which is unconvincing and untenable in the circumstances of the application before it. For the failure by the lower court to discharge its primary duty of carefully examining the Appellants’ statement of claim in order to determine the issue raised in the Respondents’, motion i.e. locus standi and justiceable cause of action, this court has the power and is entitled under section 15 of the Court of Appeal Act, 2004 to assume the full jurisdiction of that court for the purpose of discharging that duty, since the statement of claim is before us.

In the premises of the above settled principles and position of the law, I would now proceed to examine the statement of claim filed by the Appellant in order to find out if the fads pleaded have disclosed such interest that is sufficient in law to vest him the requisite capacity or competence to institute the action against the respondents in the lower court the relevant portions of the Appellants’ statement of claim are paragraphs 1, 2, 4, 5, 6, 8, 9, 10 11 and 12 of the statement of claim dated the 4/3/03. It is expedient to set them out fully and are as follows:-

 

“1. The Plaintiff is a Chief and indigenous to ALEJOR village in ONNE in the Eleme Local Government Area of Rivers State, within the jurisdiction of this Honourable Court.

He became the chief ALEJOR in the year 1989 and by the unanimous resolution of the entire members of the Onne Community, he was elected, selected and installed as the Paramount Chief of Onne, ie. Onne-eh-Onne on 14/10/89, after the general and unanimous removal and deposition of the then incumbent Onne-eh-Onne, the late Hon. Justice S. A. WAI-OGOSU.

That suit was pending as part heard before the Hon. Justice E.K. Membere, before the plaintiff died and it was struck out.

Since the death of the late Hon. Justice SA Wai-Ogosu (rtd), no one has ever till date challenged the claim of the plaintiff to the stool of Onne-Eh-Onnein any court law.

It is a fundamental requirement of the Eleme native law and custom that, any aspirant or candidate to the throne of the Onne-eh-Eleme ie. the KING OF ELEME KINGDOM, must have been the chief or Onne-Eta of a village before he can aspire to the office of the King of Eleme Kingdom.

Evidence shall be led to show that the Plaintiff had fulfilled this essential native law and custom.

In addition to the foregoing, the plaintiff has also demonstrated his intension as a candidate in the contest for the election and selection of a new candidate to occupy the vacant stool of the Onne-eh-Eleme.

See also  Boniface B. Gwar V. S. O. Adole (2002) LLJR-CA

According to the dictates of custom and tradition of Eleme people, the plaintiff had gone round the ten villages that make up Eleme Kingdom to meet their paramount Chiefs i.e. Onne-Ehtas, giving them the traditional drinks, gifts, goats etc to signify his intension for the contest.

However, in the selection of a candidate for the stool of the Onne-Eh-Eleme, the defendants adopted a method of “SELECTION BY DELEGATES”. By that method, each of the ten village in Eleme is to be represented by five delegates, handpicked by the defendant at the selection exercise.

In those villages in Eleme, like the Akpajo where there are rival claims to the anne-Eta or paramount stool of the village, the delegates was shared between the two rival claimants. Evidence will be led at the trial to substantiate this fact.

In the case of Onne, where the Plaintiff comes from, there is rival claims to the Onne-eh-Onne stool, between the plaintiff and chief Hon. J.D. Osaronu. This development has ripened into suit NO NHC/12/2003, between the plaintiff and Chief Hon. J.D. Osaronu, now pending in the court at Nchia. The Defendants instead of adopting their Akpajo method in Onne, took all the five delegates to represent Onne from Chief J.D. Osaronu’s faction, exclusive of the plaintiff. The essence of this scheme by the defendants and the Eleme Council of Chiefs, is to scheme the plaintiff out of the race for the con to select and elect a new candidate to occupy the vacant stool of the Onne-eh-Eleme.

The plaintiff was not happy with this development. Consequently, he caused his solicitors Messrs Fatai Aremu Oso & Co solicitors ‘& Advocates, to write the 1st defendant protesting against the one sided selection of delegates from Onne exclusive of the plaintiff. That letter, written on 22/2/2003, was delivered to the 1st defendant. The defendants is hereby put on notice to produce that letter at the hearing of this suit.

It would be contacted at the hearing of this suit that the partial selection of delegates from Onne by the defendants is not only prejudicial, biased but deliberately designed by the defendants to scheme the plaintiff out of the race for the selection of a candidate in the con for picking a candidate for the vacant stool of the Onne-eh-Eleme. Evidence would be led to substantiate this contention at the hearing of this suit.”

The pleading of facts in these paragraphs are quite clear and admit of no ambiguity. On their face communally, they show that the Appellant is a person entitled to aspire to and present himself for selection to fill a vacant stool or office of the Onne-eh-Eleme of the Eleme Kingdom. That the Respondents had adopted a method of selection to fill the vacant stool of Onne-eh-Eleme that is not only biased but prejudicial to him as an aspirant and candidate because it was designed to scheme him out of the contest or race in the selection process. Prima facie these facts show that-”

(a) Appellant is an indigene of Eleme Kingdom – paragraph 1

(b) Appellant was selected, elected and installed as the paramount chief of Onne ie. Onne-eh-Onne on 14/10/89 – paragraph 2.

(c) Nobody had challenged his claim to the stool of Onne-eh-Onne in any court of law since the death of the last occupant paragraph 4.

(d) The Appellant had fulfilled the condition of being a chief or Onne-Eta of a village to qualify for selection to fill the stool of Onne-eh-Eleme – paragraph 5.

(e) The Appellant had indicated and demonstrated his interest to contest for the selection of candidates to fill the stool of Onne-eh-Eleme – paragraph 6.

(f) The Respondents had designed and adopted a selection process to fill the vacant stool of Onne-eh-Eleme meant to exclude or scheme the Appellant out of the contest – paragraphs 8, 9 and 10.

It would be recalled that by raising the issue of the Appellants locus standi in limine in the suit, the Respondents are deemed in law to have admitted that all the facts pleaded in the Appellant’s statement of claim are true or correct. ADESAOYE V. ADEWOLE (supra), AKINLAMI V. AKINOLA (1994) 3 NWLR (part 335) 659. In the case of SEHINDEMI V. GOV. OF LAGOS STATE (2006) ALL FWLR (part 311) 1858 at 1877 Salami, JCA had restated the position as follows:-

“thus, by challenging the locus standi of the Appellant to maintain the action, the respondent had accepted the facts in the amended statement of claim in relation to the appellant’s standing to bring the action.”

In the present appeal, the Respondents are consequently deemed to have accepted as correct all the facts listed above which were pleaded by the Appellant in the statement of claim. It cannot be disputed that the facts have disclosed the interest of the Appellant, the nature of the interest, the source or origin of the interest, the threat to that interest by the acts of the Respondents and the violation, injury or damage to that interest. The aggregate of these facts are such that if proved, would entitled the Appellant to a remedy because the interest of the Appellant shown therein is sufficient to vest him with a legally enforceable right and capacity or competence to institute proceedings in a court of law for protection of the interest. The right of the Appellant as an indigene and a person who prima facie meets the requirement for selection or election to fill the vacant traditional stool of his Kingdom, is fundamental, cogent and weighty and sufficient interest in the circumstances of this appeal to confer the Appellant the requisite standing, capacity and competence to initiate proceedings in a court of law against any party who threaten or is actually in the process of violating such a right. It should be remembered that at this stage, the court is not called upon to determine the merits of the Appellants’ case. No that would be for another stage of the matter in the lower court.

From the unchallenged facts laid out in the paragraphs of the Appellant’s statement of claim set out earlier, I have no difficulty in finding that they disclosed sufficient interest of the Appellant in the suit to vest him with the capacity, standing and’ competence to institute the action against the Respondents in the lower court. The facts also show a reasonable cause of action which if proved at the trial, would succeed and thereby entitle the Appellant to an enforceable remedy against the Respondents.

In the result, I resolve the Appellants’ issues (i) and (ii) which are contained in the Respondents issue 2, in favour of the Appellant.

I had before now stated that the resolution of the above issues would adequately take care of the Appellant’s issue (iii) and Respondents issue 1. It is evident that the issue has been covered and resolved in the determination of the issues of locus standi and good or reasonable cause of action that were raised before the lower court in the application by the Respondents. Consequently, the issue is spent and nothing of it remains for resolution in the appeal.

In the final result, for the reasons afore stated, I find merit in the appeal and allow it. The decision of the lower court contained in the ruling delivered on the 31/1/05 dismissing the Appellants’ suit on ground of lack of locus standi, is hereby set aside. Accordingly, the Appellants’ suit NO. NHC/26/2003 is restored on the cause list of the lower court and is to be sent to the Chief Judge of Rivers State for assignment to another judge for trial.

Costs assessed at N50, 000.00 are awarded in favour of the Appellant.

Judgement was culled from Weekly Reports of Nigeria