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Dagogo v. Attorney-General, Rivers State

CHIEF CHARLES DAGOGO

CHIEF THOMPSON IBULUBO

( For themselves and as representatives of the Ibulubo

House of Okrika)

V

THE ATTORNEY-GENERAL OF RIVERS STATE

SIR CHIEF DR. ANTHONY SAMUEL FIBIKA

OPU ADO

MR. EVANS ABRAHAM M. FUKU

MR. SUNDAY J. BAMSON

MR. J. KIO BAMSON

MR. CLEMENT ABEL IBANICHUKA

MACULEY ABEL

(For themselves and as representatives of the Fibiba,  

Abam and Ibanichuka Families of Okrika)

COURT OF APPEAL

( PORT HARCOURT DIVISION )

JAMES OGENYI OGEBE, JCA ( Presided )

SYLVANUS ADIEWERE NSOFOR, JCA

ABOYI JOHN IKONGBEH, JCA (Read the Lead Judgment)

CA/PH/267/2000

THURSDAY, 29TH NOVEMBER, 2001

ACTION - Commencement of action - Modes of - Discretionary right of plaintiff to adopt any of the four modes under Order 1 rule 1 of Rivers State High Court Rules - Whether absolute

ACTION - Commencement of action - Modes of - Where wrong mode is adopted - Effect thereof - Order 2 rule 1(1) Rivers State High Court Rules

ACTION - Originating summons - Commencement of action thereby Conditions precedent thereto

ACTION - Whether a matter is contentious or non-contentious - Who determines - Guiding rules

COURT - Judges - Materials placed before the court - Duty thereon to look at them

COURT - Need for to be discreet in termination of cases on technical grounds

COURT - Rules of court - ‘Shall’ as used in Order 1 rule 2(1) of Rivers

State High Court Rules - Mandatory effect of

DOCUMENT - Disputed document - How to consider what it means

PRACTICE AND PROCEDURE - Modes of commencement of action -

Discretionary right of plaintiff to adopt any of the four modes under

Order 1 rule 1 of Rivers State High Court Rules - Whether absolute

PRACTICE AND PROCEDURE - Originating summons - Commencement of action thereby - Conditions precedent thereto

PRACTICE AND PROCEDURE - Termination of action on technical grounds - Consequences of - Need for court to be discreet in so doing

PRACTICE AND PROCEDURE - Commencement of action - Modes of -

Where wrong mode is adopted - Effect thereof under Order 2 rule

1(1) , Rivers State High Court Rules

WORDS AND PHRASES - ‘Principal question’ - Meaning of

Issues:

1.            Whether the learned trial Judge was right in holding that originating summons was, in the circumstances of the case, an appropriate mode of commencing the action before him.

2.            Whether the learned trial Judge was right in refusing to set aside the originating summons as prayed by the objectors.

Facts:

This appeal emanated from the ruling of the Rivers State High Court, sitting at Port Harcourt (Coram A. A. Ogbonna, J.) refusing to set aside the originating summons by which the plaintiffs/respondents herein had commenced their action in a representative capacity. The appellants were the 2nd and 3rd defendants before the trial court representing the Ibulubo House of Okrika while 1st respondent was the 1st defendant and the 2nd 7 th respondents herein were the plaintiffs. In the originating summons, the plaintiffs/respondents claimed declaratory reliefs inter alia:  a declaration that the acceptance by the then government of Eastern Nigeria of the recommendations of the Commission of Enquiry into Outbreaks of Violence at Okrika (otherwise known as the Graham Commission) published in Official Document No. 23 of 1963 to the effect that the Ado House composed of Abam, Dokube, Fibika, Ibanichuka and Ogan families is the recognised royal house families of Okrika (exhibit SF1) is still subsisting and binding, a declaration that no other family than the above five families is entitled to produce any candidate for the stool of the Amanyanabo of Okrika.

The plaintiffs/respondents also raised for determination in the said summons the following question whether upon a true and proper construction of exhibit SF1, the Ibulubo House or family of Okrika is entitled to produce any candidate to occupy the stool of the Amanyanabo of Okrika or any other family, or families is entitled to produce any candidate for the stool of Amanyanabo of Okrika or seek to fill any vacancy on the stool or occupy the stool other than the five families named in exhibit SF1.

The defendants upon receiving service of the summons, promptly caused appearance to be entered for them. Shortly after, the 2nd respondent filed a counter-affidavit opposing the summons. It was their case that in 1971  Ibulubo house was excised from Dokube house with the general consensus of the Ado Royal Family and the Okrika Division Council of Chiefs according to Okrika native law and custom and that since 1971 the Ibulubo family has been referred to and treated as a separate unit of Ado Royal Family and consequently is entitled to the stool of Amanyanabo of Okrika.

Sometime after filing the counter-affidavit, counsel on behalf of 1st and 2nd appellants raised preliminary objection praying for an order setting aside wholly or in part the originating summons in the above suit on the ground amongst others that the real issue in controversy raised substantial dispute of facts. After the addresses of counsel for the parties on the preliminary objection, the learned trial Judge struck out the preliminary objection. The appellants were aggrieved by the ruling, so appealed to the Court of Appeal.

The appeal court considered Order 1 rules 1 and 2 and Order 38 rules 1 , 5 & 6 of the Rivers State High Court (Civil Procedure) Rules 1987 which provides as follows:

Order 1 rule 1 & 2:

“1.       Subject to the provisions of any enactment, civil proceedings

may be begun by writ, originating summons, originating motion or petition, as hereafter provided.

2 (1) Subject to any provisions of an enactment or of these rules by virtue of which any proceedings are expressly required to begin otherwise than by writ, the following proceedings shall be begun by writ, that is to say, proceedings -

(a)                in which a claim is made by a plaintiff for any relief or remedy for any tort or civil wrong,

(b)               in which a claim made by the plaintiff is based on allegation of fraud;

(c)                in which a claim is made by the plaintiff for breach of duty (whether the duty exists by virtue of a contract or of a provision made by or under a law or independently of any contract or any such provision) or where the damages claimed consist of or include damages in respect of death of any person or in respect of personal injuries to any person or in respect of damage to any property;

(d)               in which a claim is made by the plaintiff in respect of the infringement of a patent, trade mark, copyright, intellectual or other proprietary interest of whatever kind;

(e)                in which a claim for a declaration is made by an interested person.

(2)               Proceedings may be begun by originating summons where:

(a)                   the sole or principal question at issue is, or is likely to be, one of the construction of a written law or of any instrument made under any written law, or of any deed, will, contract or other document or some other question of law; or

(b)                   there is unlikely to be any substantial dispute of fact.”

Order 38 Rules 1, 5 and 6:

“1. Any person claiming to be interested under a ... written instrument may apply by originating summons for the determination of any question of construction arising under the instrument and for a declaration of the rights of the persons interested.

5.            The court or Judge in chambers shall not be bound to determine any such question of construction if in its opinion it ought to be determined on originating summons.

6.            The court by whom an originating summons is heard may, if the liability of the defendant to the plaintiff in respect of any claim made by the plaintiff is established, make such order in favour of the plaintiff as the nature of the case may  require

...”