3PLR – ATTORNEY-GENERAL OF ANAMBRA STATE V. NWOSU EBOH
POLICY, PRACTICE AND PUBLISHING, 3PLR, LAW REPORTS
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ATTORNEY-GENERAL OF ANAMBRA STATE
V.
NWOSU EBOH
COURT OF APPEAL, ENUGU DIVISION
CA/E/135/89
TUESDAY 12TH NOVEMBER, 1991
3PLR/1991/53 (CA)
OTHER CITATIONS
BEFORE THEIR LORDSHIPS
FRANCIS OLISA AWOGU, J.C.A.
GEORGE ADESOLA OGUNTADE, J.C.A.
SAMSON ODEMWINGTE UWAIFO. J.C.A.
BETWEEN
- ATTORNEY‑GENERAL OF ANAMBRA STATE
- COMMISSIONER FOR LOCAL GOVERNMENT, RURAL DEVELOPMENT AND CHIEFTAINCY MATTERS
- IGWE 1.0. OFOBIKE (EZEORA 1 OF UMUCHU)
- CHIEF J.N. OKAFOR
- A.N. OKOYE
- CHIEF AUGUSTINE
- AUGUSTINE AKABUDE
- RICHARD UGOKWE
- 0. NZEUKWU
- VINCENT A. ORAZULIKE (For themselves and as Representatives of members of The two villages of Ezinifite)
AND
CHIEF MICHAEL NWOSU EBOH (Igwe Ozuome Obi of Enzinifite)
REPRESENTATION
M.T.N. Onwugbufor Esq, Director Civil Litigation, Enugu, (with him, A.C. Achebe ESQ, Legal Officer,) Ministry of Justice, Anambra State ‑ for the 1st Set of Defendants/appellants
C.A. Anozie ESQ. ‑ for the 2nd set of Defendants/Appellants
D.N Oguadi ESQ, ‑ for the Plaintiffs/Respondents
MAIN ISSUES
CUSTOMARY LAW – CHIEFTAINCY MATTERS AND LOCUS STANDI:- Processes which could lead to removal of a person from a community stool – Whether affords standing/ground or sufficiency of interest to sue in order to preemptively prevent the event – Relevant considerations
CONSTITUTIONAL LAW:‑ Justiciability and locus standi – Proper conceptions of ‑ Relationship between.
PRACTICE AND PROCEDURE – ACTION ‑ Cause of action ‑ Meaning of
PRACTICE AND PROCEDURE – ACTION ‑ Institution of action ‑ Existence o/ Locus Standi ‑ How determined – Whether evidence necessary.
PRACTICE AND PROCEDURE – ACTION ‑ Institution thereof‑ Whether can be aimed at forestalling apprehended breach of right.
PRACTICE AND PROCEDURE – ACTION ‑ Justiciahility and Locus standi ‑ Concepts of ‑ Relationship between.
PRACTICE AND PROCEDURE – APPEAL ‑ Issue for determination ‑ Need to re/ate to ground of appeal – Effect where it does not.
PRACTICE AND PROCEDURE – ESTOPPEL:‑ Plea of estoppel ‑ Whether can be challenged by way of preliminary objection.
PRACTICE AND PROCEDURE – LOCUS STANDI:‑ ‘ Locus standi’ and ‘reasonable cause of action’ ‑ Distinction between.
PRACTICE AND PROCEDURE – LOCUS STANDI:‑ Absence of locus standi ‑ Effect.
PRACTICE AND PROCEDURE – LOCUS STANDI:‑ Determination of locus standi ‑ Nature of interest sufficient to support its existence – Determination of locus standi ‑ What must be considered ‑ Whether evidence is necessary.‑ What plaintiff must show.
PRACTICE AND PROCEDURE – LOCUS STANDI:‑ Justiciability and locus standi ‑ Relationship between.
WORDS AND PHRASES ‑ Cause of action ‑ Meaning of.
WORDS AND PHRASES:‑ Justiciability and locus standi ‑ Conceptions of‑ Relationship between.
WORDS AND PHRASES:‑ ‘ Locus standi’ and ‘reasonable cause of action’ ‑ Distinction between
MAIN JUDGEMENT
UWAIFO, J.C.A. (Delivering the Leading Judgment):
These two interlocutory appeals raise the fundamental but sometimes troubling issue of locus standi. It is what has been described to be “among the most amorphous in the entire domain of public law”, see Constitutional Law (Handbook Series) by Nowak, Rotunda and Young, 1980 edition, page 68. Each appeal is brought by each of two sets of defendants in an action pending at the Nnewi High Court. The said appeals are from a ruling of Olike, J., given on 23 September, 1987. The learned judge therein declined to strike out the plaintiff’s claim upon an application by the 1st set of defendants (supported by the 2nd set of defendants) urging him to do so on the grounds that the plaintiff lacked locus standi. I shall hereafter refer to the 1st set of defendants, which embraces 1st to 6th defendants, as the 1st appellants, the 2nd set of defendants, which embraces 7th to 10th defendants, as the 2nd appellants, and the plaintiff as the respondent.
Eziriifite is the composite name of a group of three villages, namely: Ifite, Awo (pronounced Awor) and Umudiana. There had been an issue as to the order of seniority between Ifite and Awo. Ifite claims to be the most senior of the three villages while Awo similarly makes that claim. Umudiana appears to accept the third position in any event. The seniority issue between Ifite and Awo does seem to the respondent to be important, as I shall show later, in the circumstances as alleged by him of his ascension to the position of “Igwe Ozuome, Obi of Ezinifite” which is the title stated in the claim he filed on 22 September, 1986.
The claim was originally against the 1st appellants. But on the application of the 2nd appellants they were joined by court order made on 27 January, 1987 as co‑defendants. The respondent filed his statement of claim on 24 February, 1987. The 2nd appellants filed their statement of defence on 12 March, 1987 while the 1st appellants filed theirs on 9 April, 1987. On 12 May, 1987, the 1st appellants filed a motion seeking an order striking out or dismissing the suit for reason that the respondent lacked the locus standi to institute the same. However, in his ruling the learned judge held he did not. He said that the respondent had pleaded enough facts to show his interest, observing that “I am satisfied on the aggregate of facts pleaded that he sufficiently establish (sic) a justiciable interest worthy of protection. He has locus standi to sue, entitled to be heard and not shut out. The court should proceed to determine the cause of action on the merit.” In other words, he found that the respondent has the necessary standing to sue and ought to be allowed to prosecute the action.
In the five issues for determination raised by the 1st appellants the substance is whether (1) the respondent lacks locus standi and (2) the statement of claim discloses any reasonable cause of action. The 2nd appellants put it simply and concisely this way:
“(a) Was the learned trial Judge right in law, considering the statement of claim, to decide that the plaintiff had locus standi to institute the action?
(b) Did the plaintiff’s statement of claim disclose any civil right or obligation of his which would be, or was likely to be, affected by any order made in the suit?”
The respondent was equally precise, although, in my view, his second issue as framed by him seems to be wider than each of the second issues stated above. He asks:
“(i) Whether the learned trial Judge was right in holding that the Respondent on the averments in the statement of claim, has locus standi to institute the suit?
(ii) Is it the private right of the Respondent or Ifite village that will be affected by the setting up of the Peace Committee? In effect who is the proper party to sue?”
The respondent seeks six reliefs. I do not intend to reproduce them because, first, I shall refer to some relevant aspects of the statement of claim later which I consider will throw light on the foundation of the claim and secondly, it seems to me for the purposes of the present judgment it is unnecessary to do so. I shall therefore paraphrase the reliefs. They are:
(1) A declaration that the respondent is the recognised ruler of Ezinifite.
(2) A declaration that the issue of seniority among the three villages in Ezinifite has long been settled in favour of Ifite in accordance with traditional rites and custom and a Peace Committee on the same issue is unnecessary.
(3) A declaration that No. 2 among the 1st appellants lacks power under section 16 of the Traditional Rulers Law No.14 of 1981 to institute the inquiry in the prevailing circumstances.
(4) Perpetual injunction.
(5) A declaration that Nos. 3,4,5 and 6 among the 1st appellants are disqualified from sitting on the Peace Committee.
(6) A declaration that the terms of reference of the Peace Committee are unconstitutional and without legal basis.
In the statement of claim, the following averments which I consider germane to the issue of the locus standi of the respondent were made in the paragraphs indicated:
“5. Ifite as the most senior of Ezinifite villages, has all through generation produced and in succession warrant chiefs for Ezinifite, starting from Dararu, Onyebe, Daraahu, Dara Okworogu, Dara Anyika, Osuokoro, Daranenyereugo and the plaintiff, all these without any opposition until lately from any of the villages of Ezinifite.
- The plaintiff became the Chief of Ezinifite in 1947, and also the district council representative for Ezinifite till 1965, no one questioned the authority of Ifite in Ezinifite.
- Following the State Government’s Chieftaincy directive on its White Paper on chieftaincy Matters, regarding the selection, representation and recognition of Chief in autonomous community and pursuant to paragraph 10(b) of the said White Paper, it fell to the turn of plaintiff’s Ifite village to present to the Ezinifite Community and the Secretary Nnewi Local Government its chief and traditional ruler. Further and before the said presentation a Constitution Drafting Committee with O.O. Ifeclinairu as (sic) recommended a rotatory system of rulership, a document which was to be signed by two representatives of each ward, and till date was never seen. The 2nd (of) the 1St set of defendants is given notice to produce the said document.
- For the 1st time in the history of Ezinifite, and to the surprise of the plaintiff, Awo village of the 2nd set of defendants through its spokesman, Ezeefunamba, and the 4th defendant carried the tale that the seniority of Awo was snatched off it by the plaintiff…
- The interviews with the 2nd defendant under the guise of settling the seniority list in Ezinifite, but with an undertone of distooling the plaintiff culminated in the setting up of the 3rd defendant Peace Committee. The plaintiff will rely on the 2nd defendant’s speech and terms of reference of the said Committee, to which the 3rd defendant is given notice to produce the original.
- The plaintiff will at the trial lead evidence and contend that the question of seniority is inextricably tied (to) and inseparable from the Chieftaincy/Rulership in Ezinifite, and that this has been the case for generation up till the present
- The 2nd defendant will stop at nothing to destool the plaintiff under the veneer of settling the seniority dispute at Ezinifite unless restrained by this Court. Further that the said Committee’s prejudged deliberation will upset the long established seniority list with it the choice of a Chief in Ezinifite and will produce in its trail unrest and disturbance of the public peace which the 2nd defendant nor his successor in office.” (sic)
In an address delivered by the Commissioner for Local Government, Rural Development and Chieftaincy Matters (which bears no date but probably was in July, 1986 having regard to paragraph I 9(iv) of the statement of claim), he set up a Peace Committee to “examine all the causes remote and immediate, of the impasse in Ezinifite including the issue of seniority among the villages and recommend solutions to them with a view to restoring peace.” It is significant however that in that address the Commissioner identified the root cause as the chieftainship of Ezinifite.
He said:
“For ten whole years, Ezinifite Community in Nnewi Local Govemment Area, has been under intra community strife which arose out of the 1976 Chieftaincy Institution. Unlike many other communities in Anambra State, Ezinifite has unwittingly allowed the Chieftaincy issue to disorganise its people.”
It must be conceded that the statement of claim contains various averments some of which may be considered irrelevant. That is a different matter. But from the averments contained in paragraphs 5, 7, 8, 9, 18, 20 and 21 set out above, the following facts have been alleged:
(1) The respondent is the present Chief of Ezinifite.
(2) He hails from Ifite village which had always produced warrant chiefs for Ezinifite.
(3) Ifite village enjoyed this pride of place because of its seniority in Ezinifite.
(4) The seniority of Ifite in Ezinifite had not been in dispute till recently.
(5) The White Paper on Chieftaincy matter as to the selection and recognition of a Chief placed Ifite village in the forefront to present the Chief for Ezinifite.
(6) There is now the talk by Awo village people that Ifite village has deprived Awo village of its seniority.
(7) The Peace Committee is intended to reorder the seniority position in Ezinifite, and with it the basis for choosing the Chief.
(8) On this happening, it would affect the present chieftainship of Ezinifite occupied by the respondent.
The first question is whether the respondent can be heard to make these averments. The second is whether they provide him with reasonable cause to object to the Peace Committee being given its stated terms of reference. It must be recalled that the cause of the disagreement between Ifite and Awo is acknowledged as the Chieftaincy matter. That seems to have started since the Chieftaincy Institution was installed and given Government backing in Anambra State in 1976. in the case of Ezinifite the respondent says that his selection and recognition as the Chief of Ezinifite were based on the seniority position of Ifite village. He says further that once that seniority is changed, he would lose his chieftainship.
The law is well settled that for a plaintiff to have a sufficient interest to give him locus standi in a suit, his statement of claim should show the nature of the interest. It is plain therefore that before the case goes to trial, it is the statement of claim to which the court should direct its consideration when the issue of locus standi is raised: see Momoh v. Olotu (1970) 1 All NLR 117; Oloriode v. Oyebi (1984) 1 SCNLR 390; Thomas v. Olufosoye (1986) 1 NWLR (Pt.18) 669; Eleso v. Government of Ogun State (1990) 2 NWLR (Pt. 133) 420. In Nigeria Airways Ltd. v. Lapite (1990) 7 NWLR (Pt. 163) 392 at 409‑410, NNAEMEKA‑AGU, JSC said:
“When a plaintiff, by his pleading, fails to show that he has a locus standi to institute an action no issue in the case can be gone into, not even the question whether or not the Statement of Claim discloses a cause of action.”
The 1st and 2nd appellants argue that the respondent has not disclosed sufficient interest in his statement of claim. The 1St appellants have made reference to the averments in paragraphs 20 and 21 and contend that what is in issue there is in respect of the seniority of Ifite village in Ezinifite. They therefore maintain that it is only Ifite village as an entity which can sue and not the respondent who is one out of numerous persons in that village. This argument has not, in my view, taken account of the other relevant averments which I earlier set out and the logic of their relationship with the respondent’s personal interest he seeks to protect.
The 2nd appellants submit also on this point that it is Ifile village which can sue, if at all, but that in any event whatever is arrived at by the Peace Committee on the question of seniority cannot affect the chieftainship of the respondent. This is because he can only be distooled by the Governor, on grounds of grave misconduct after due administrative inquiry, in accordance with the Traditional Rulers Law No.14 of 1981. 1 think, first, that these are arguments to be canvassed at the trial. Second, the Traditional Rulers Law may be quite appropriate when the basis for the selection, appointment and recognition of a Chief cannot be faulted but he has committed grave misconduct. If the basis as to the seniority of the villages is called into question directly or indirectly and there is imminent danger that an unfavourable finding on seniority of the said villages will knock out the bottom of his stool, as the respondent fears, I think he is entitled to be heard on the propriety of re‑opening the seniority issue. Even if the appellants are willing to concede, as they indeed made part of their argument, that the respondent’s chieftainship is secure, I think he is entitled still to a declaration to that effect.
The jurisdiction being urged by the appellants to be invoked by the Court to determine the locus standi of the respondent is the interpretation of judicial powers exercisable under section 6(6)(b) of the 1979 Constitution. Those powers are specifically stated to “extend to all matters between persons or between government or authority and any person in Nigeria and to all actions and proceedings relating thereto, for the determination of any question as to the civil rights and obligations of that person.” See Thomas v. Olufosoye (1986) 2 SC 325 at 348; (1986) 1 NWLR (Pt. 18) 669 at 684.
Locus standi means a place to stand on, and, as it applies to legal proceedings, to decide that a person has no locus standi is to send him out of court on the ground that he has no right to appear or be heard in a particular proceeding. His action could be struck out at a preliminary stage: See Otapo v. Sunmonu (1987) 2 NWLR (Pt.58) 587 at 615; Nigerian Airways Ltd. v. Lapite (1990) 7 NWLR (Pt. 163) 392 at 403.
A person must have a sufficient interest in a subject matter of litigation to enable him to sue. He must show that either his personal interest will immediately be or has been adversely affected by the action or that he has sustained or is in immediate danger of sustaining an injury to himself: See Adesanya v. President of the Federal Republic of Nigeria (1981)5 SC. 112 at 152; (1981)2 NCCR 358. The sufficiency of the interest will necessarily vary from case to case. But as stated in Jowitt’s Dictionary of English Law, 2nd ed. vol.1 page 995: “A person is said to have an interest in a thing when he has rights, advantages, duties, liabilities, losses or the like, connected with it, whether present or future, ascertained or potential: provided that the connection, and in the case of potential rights and duties, the possibility, is not too remote. The question of remoteness depends upon the purpose which the interest is to serve.”
I think the above is particularly appropriate to the present case as it relates to the locus standi of the respondent. Where the interest of a plaintiff is insufficient or too remote in a particular situation, it will not support his assertion of locus standi to sue as in Olawoyin v. Attorney‑General Northern Nigeria (1961)1 All NLR 269; (1961) 2 SCNLR 5; Attorney‑General Eastern Nigeria v. Attorney‑General of the Federation (1964) 1 All NLR 220; Adesanya v. President of Nigeria (supra); Thomas v. Olufisoye(1986) 2 S.C. 325; (1986) 1 NWLR (Pt.l8) 669. Whether it is in the form of rights or advantages to be affected or in the form of injury likely to be sustained by the action of the Peace Committee, it is necessary to take into account how close to any of those consequences the respondent is, having regard to the issue of his chieftainship which is at the root of the alleged lack of peace in Ezinifite. In Flast v. Cohen (1942) 392 US 83, the United States Supreme Court held that in ruling on a party’s standing to sue, it is both appropriate and necessary to look to the substantive issues for the purposes of determining whether there is a logical nexus between the status asserted by the plaintiff and the claim sought to be adjudicated as such inquiry is essential to assure that the plaintiff is the proper party to invoke the judicial powers conferred by a particular statute or the constitution.
The respondent seeks under section 6(6)(b) of the 1979 Constitution a determination of the question as to his civil right to have his chieftainship undisturbed by the likely danger of altering the seniority order of the villages in Ezinifite which existing seniority order, he alleges, formed the basis of his ascension to that position. I think he has shown by his pleading that there is a logical nexus between his chieftainship and the terms of reference of the Peace Committee. That, in my view, gives him the locus standi to be heard in the suit he has brought.
Issue has been raised by the 1st appellants as to whether there is a reasonable cause of action disclosed by the respondent in his statement of claim. I shall merely at this stage define what amounts to a cause of action before I examine the merit of raising that issue in the present appeal. In Ayanboye v. Balogun (1990)5 NWLR (Pt. 151) 392 at 407, Akpata, J.S.C. said that it is the entire set of circumstances as disclosed in a statement. of claim which gives rise to a right in a plaintiff to sue for a particular relief or reliefs. Various definitions of what amounts to a cause of action have been given, two of which were stated by Agbaje, J.S.C. in Amodu v. Amode (1990)5 NWLR (Pt. 150) 356 at 367. In effect a ‘cause of action’ is said in that case to mean all those things necessary to give a right of action whether done by the plaintiff or a third person and this implies every fact which is material to be proved to entitle the plaintiff to succeed and which the defendant would have a right to traverse.
I shall quote Obaseki JSC in Afolayan v. Ogunrinde (1990)1 NWLR (Pt. 127) 369 at 382‑383 as follows:
“In its simplest terms, I would say that a cause of action means
(1) a cause of complaint;
(2) a civil right or obligation fit for determination by a court of law;
(3) a dispute in respect of which a court of law is entitled to invoke its judicial powers to determine.
It consists of every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment ‑ Cook v. Gill (1873) L.R.8 C.P.107; Read v. Brown (1889) 22 Q.B.D. 128. When facts establishing a civil right or obligation and facts establishing infraction of or trespass on those rights and obligations exist side by side, a cause of action is said to have accrued.”
I now come to the second issue I earlier identified among the five issues for determination set out by the 1st appellants. This second issue which is whether the statement of claim discloses any reasonable cause of action was in fact issue No.5. But I shall not proceed to answer that issue having regard to what I consider to be a valid objection raised thereto by the respondent in his brief. The objection is simply that a question for determination must be related to the grounds of appeal filed. There are numerous authorities to support this among which respondent’s counsel cited Ugo v. Obiekwe (1989)1 NWLR (Pt.99) 566 at 580; Okpala v. Ibeme (1989) 1 NWLR (Pt. 102)208 at 220; Adelaja v. Fanoiki (1990) 2 NWLR (Pt. 131) 137 at 148; Globe Fishing industries Ltd. v. Coker (1990) 7 NWLR (Pt. 162) 265 at 282. I shall add Akilu v. Fawehinmi (No. 2) (1989) 2 NWLR (Pt. 102) 122 at 161 where Karibi‑Whyte JSC said:
“The Respondent, Chief Fawehinmi has observed in his brief and I agree with him that the questions for determination formulated by Counsel to the Appellant were neither based strictly on the grounds of appeal filed and without reference to the conclusions reached by the Court of Appeal for granting the stay of proceeding pending the determination of the appeal in the Court of Appeal. This Court has stated in many of its decisions that the questions for determination must relate to the grounds of appeal filed and the judgment challenged …”
The objection as to locus standi was not canvassed on the question whether there was a reasonable cause of action. In the circumstances, argument in respect of that issue must be ignored. The issue of standing to sue must with due care be separated from whether a plaintiff has a reasonable cause of action. They are not coextensive, nor does a finding in favour of the former depend on the examination of the latter. All that is required is to ascertain whether the person whose standing to sue is in issue is a proper party to request an adjudication of a particular issue: See Olowosago v. Adebanjo (1988) 4 NWLR (Pt,88) 275. In doing this the statement of claim is examined to ensure that there is a cause of action namely, the rights and obligations or interests of the plaintiff which have been violated: See Adefulu v. Oyesile (1989)5 NWLR (Pt.122) 377 at 410 per Uwais, J.S.C. If the contention is raised that there is no reasonable cause of action where a proper party is suing in court, the right procedure is to ask that the action be struck out on the grounds that it is frivolous, vexatious and an abuse of the process of the court under the relevant rules of the court: See Ibrahim v. Osim (1988) 3 NWLR (Pt.82) 257 at 267, 269.
The learned judge reached a conclusion that on the facts pleaded the respondent sufficiently established a justiciable interest upon which he could be heard. I think he was quite right to limit himself to that. To that extent one may look at it from the point of equating a justiciable interest simply with (1) a cause of complaint; (2) a civil right or obligation fit for determination by a court of law; (3) a dispute in respect of which a court of law is entitled to invoke its judicial powers to determine, as per Obaseki JSC in Afolayan’s case. That to me falls within a justiciable cause or interest. As said by Bello, J.S.C. (now C.J.N.) in Adesanya v. President of the Federal Republic of Nigeria (supra) at page 155:
“It is common ground in all the jurisdictions of the common law countries that the claimant must have some justiciable interest which may be affected by the action or that he will suffer injury or damage as a result of the action. In most cases the area of dispute, and sometimes, of conflicting decisions has been whether or not on particular facts and situation the claimant has sufficient justiciable interest or injury to accord him a hearing. In the final analysis, whether a claimant has sufficient justiciable interest or sufferance of injury or damage depends on the facts and circumstances of each case”
With due respect, I think the above observations, which represent the true concept and position in relation to locus standi aptly bear on the facts and circumstances of the present case.
As held in Flast v. Cohen (supra) locus standi is an aspect of justiciability and as such, the problem of standing to sue is surrounded by the same complexities and vagaries that inhere in justiciability. Justiciability has been said not to be a legal concept with a fixed content or susceptible of scientific verification: See Poe v. UlIman 367 US 497 at 508 (1961). But, while Chief Justice Warren acknowledged this feature of justiciability, he attempted instances of questions not justiciable under the American situation in the case of Flast v. Cohen (supra) at page 95 where he said:
“Justiciability is itself a concept of uncertain meaning and scope. Its reach is illustrated by the various grounds upon which questions sought to be adjudicated in federal courts have been held not to be justiciable. Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question, when the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action.”
It seems to me that the above accords with our situation in this country except that it is not limited to the so‑called ‘federal courts’ but it applies to all courts, whether Federal or States. The inclusion of the last aspect, namely, ‘when there is no standing to maintain the action’ is in support of the view that standing to sue is an aspect of justiciability. I earlier showed how the respondent in his statement of claim has asserted how his own personal interest will be affected by the Peace Committee’s terms of reference. It does not matter that right derives from a chieftaincy associated with his own lfite village. He is already the incumbent of the stool. He has the locus standi to sue in order that that incumbency is not disturbed if he alleges facts that he considers likely to affect it. In Eleso v. Government of Ogun State (1990) 2 NWLR (Pt. 133)420 at 444 Nnaemeka‑Agu, J.S.C. said inter alia:
“… a man may be asserting his own right to the chieftaincy stool. What is required in that case is that his statement of claim ‑ and evidence if evidence has been called ‑ should show the nature of his interest and his entitlement to the stool In that case, what he is asserting is his own civil right to the stool and not that of his family Section 6(6)(b) of the 1979 Constitution has expressly given him a locus standi in such a case It does not matter that it was not his hereditary entitlement. His case is that the stool has been allocated to his own section of the town which section selected him as a candidate. He clearly had the locus standi to bring an action in order to assert his civil right.”
I am satisfied that the respondent has a sufficient justiciable interest as held case. by the learned judge, even though that was not even canvassed at the lower court and on the authorities it became irrelevant at that stage when only the issue whether the respondent was a proper party was raised: See Oloriode v. Oyebi (1984)1 SCNLR 390; Odeneye v. Efunuga (1990)7 NWLR (Pt.164) 618 at 638. He certainly has the necessary locus standi to bring this action and I think he ought to be heard. I accordingly come to the conclusion that the appeals of the 1st and 2nd sets of appellants fail. They are each dismissed. I award costs of N250.00 against each set of appellants in favour of the respondent.
AWOGU, J.C.A.:
I read in advance the judgment just delivered by my brother, Uwaifo, J.C.A., and I agree with it. The appeal lacks merit.
The appellants concede that the stool of the Respondent as lgwe Ozuome, Obi of Ezinifite, is safe and that he cannot be destooled by a Peace Committee charged with the responsibility of finding peace at Ezinifite. It is argued that this being so, he cannot use his stool as a ploy for locus standi in objection to the innocuous peace initiative of the 1st and 2nd Defendants/Appellants, and that only his Ifite Village of Ezinifite Community can properly complain, assuming that the peace initiative may affect their seniority in Ezinifite. There is a fallacy in this line of argument.
Firstly, it is but right to protest if one smells danger, and not to wait until the rope is tight around the heck for his execution. The trial court must, however, he sure that a genuine fear exists and hence the dictum of Nnaemeka‑’Agu, J.S.C., in Eleso v. Government of Ogun State (1990) 2 NWLR (Pt. 133) 420 at 444. Whether or not the fear is sufficiently genuine to warrant protection is a matter for trial, not for an objection to jurisdiction which seeks to drive the party away from the seat of judgment. As I see it in the instant appeal, what the Respondent is saying is that he was smelling a rat as the issue of seniority had long been settled, yet the 2nd Defendant/Appellant said that part of the mission of the peace committee was that for 10 years Ezinifite has been under “intracommunity strife which arose out of the 1976 Chieftaincy Institution”. The Respondent gave details of the previous settlement. In effect, he was raising an estoppel which, as a rule of evidence, should be gone into at the trial. A plea of estoppel cannot be defeated by a preliminary objection, and without trial. I too dismiss the appeal and award N250.00 costs against each set of appellants in favour of the respondent.
OGUNTADE, JC.A.:
The core issue in this case is whether or not the plaintiff/ respondent had locus standi to bring the suit. The appellants had contended before the lower court that the plaintiff/respondent had no locus standi to bring the suit.
The dispute that led to the initiation of the suit by the plaintiff/respondent centres around the question ‑ which was the most senior of the three villages that made up of Ezinifite. Ifite and Awo contend for the honour. The plaintiff/respondent is the present Igwe of Ezinifite which comprised the three villages. The 3rd village Umudiana accepts the third position behind either Ifite or Awo.
In paragraphs 18 ‑ 21 of his statement of claim, the plaintiff/respondent pleaded that a peace committee set up by the 2nd defendant was in fact a guise for removing him from the Igweship. When the issue of locus standi is raised in a proceeding, the question whether or not the plaintiff possesses it must be determined with reference to the averments in the statement of claim. See Ayanboye v. Balogun (1990) 5 NWLR (Pt. 151) 392 at 407.
The plaintiff/respondent may or may not be able to prove at the trial that the purpose of the peace committee was to remove him as the Igwe. But, he has at least offered that as a reason for his action. It is clear that if the purpose of the peace committee was indeed to remove the plaintiff/respondent from the throne, he would have a right to sue. This is because he has a right to protect his continued stay in office as the Igwe. Sufficiency of interest is always the troubling issue when the question of locus standi is being considered. See Thomas v. Olufosoye (1986) 2 S.c. 325; (1986) 1 NWLR (Pt.18) 669 In Momoh v. Olutu (1970) 1 All N.L.R. 117 the Supreme court discussing sufficiency of interest to bring a suit in a chieftaincy dispute said:
“The plaintiff says that he is a member of the Olukare family. The question may be asked, is it enough for the plaintiff to state that he is a member of the Olukare family? Has he not got to state that he has an interest in the chieftaincy family. Surely not every member of a chieftaincy family has an interest in the chieftaincy title. We are of the view that it is not enough for the plaintiff to state that he is a member of the family; he has to state further that he has an interest in the chieftaincy title and furthermore state in his statement of claim how his interest in the chieftaincy arose. It is difficult to say on the pleadings filed that the plaintiff has any locus in the matter.”
In the instant case, it is common ground that the plaintiff/respondent is the Igwe of Ezinifite. What the lower court had to determine was whether or not the peace committee set up was as the plaintiff/respondent alleged a subterfuge to remove him from the throne. That is a matter of fact to be determined when evidence has been led. Not at all a question of law. Mr. M.T.N. Onwugbufor for the 1st set of appellants has argued before us that there is a procedure under the Traditional Rulers Law 1981 for removing an Igwe from the throne and that since the Peace committee set up by the 2nd defendant was not a step towards the process of removal under that law, the fears of the plaintiff/respondent are unjustified.
I think that that argument is porous and an attempt to escape from the true issue. Laws do get broken. A vigilant person does not wait for irreversible steps to be taken against him before he takes pre‑emptive actions.
Everything considered, I think the plaintiff/respondent has shown that he has standing in bringing his suit. I therefore agree with the lead judgment of my learned brother Uwaifo, J.C.A. and accordingly dismiss the appeal with costs as ordered in the lead judgment.
Appeal dismissed.
