CHIEF JOHNSON EMERE NKPORNWI V. HRH SAMUEL OLUKA EJIRE & ANOR. (2009)

Background

This consolidated decision arose from two appeals against interlocutory rulings of the High Court of Justice, Rivers State, sitting at Nchia. Chief Johnson Emere Nkpornwi commenced proceedings concerning the vacant stool of One-eh-Eleme, the traditional ruler of Eleme Kingdom. He sought declarations that he was a fit, proper and qualified candidate, that he had complied with the relevant Eleme customary requirements, and that the process being used to select and install a new king was discriminatory and prejudicial to him.

During the proceedings, the appellant applied for a mandatory restorative injunction. He asked the High Court to restore the parties to their position before the purported election of the first respondent on 21 March 2003 and to reverse that election pending determination of the substantive action. The High Court dismissed the application. This ruling generated Appeal No. CA/PH/92/2005.

In the second proceeding, the respondents challenged the competence of the action against the Eleme Council of Chiefs. They argued that the council was not a juristic person capable of suing or being sued in its own name. The High Court upheld the preliminary objection and struck the council’s name from the suit. The appellant brought Appeal No. CA/PH/190/2005. The Court of Appeal consolidated both appeals for hearing but emphasized that each retained its separate identity and required a distinct determination.

Issues

1. Whether the appellant had established a sufficient basis for the High Court to exercise its discretion in granting a mandatory restorative injunction.
2. Whether the Eleme Council of Chiefs was a juristic person capable of suing or being sued in its own name.
3. Whether the alleged service of court processes on the first respondent constituted valid service on the Eleme Council of Chiefs.

Ratio Decidendi

The Court of Appeal held that a mandatory injunction, also called an affirmative injunction, commands a party to perform a positive act, unlike a prohibitory injunction, which restrains conduct. A mandatory restorative injunction is an exceptional discretionary remedy. The court must examine the circumstances existing after the alleged breach, determine whether restoration is necessary, and select an order that produces a fair result. It must balance the benefit to the applicant against the detriment to the respondent. Relief should not be denied merely because it inconveniences the defendant, but an applicant should not insist upon an order that offers little practical benefit while causing disproportionate harm.

The court further held that an interlocutory mandatory restorative order is generally inappropriate where the act complained of has already been completed, particularly where the order would effectively determine a substantial aspect of the substantive dispute. Although courts possess inherent powers to protect their authority and prevent parties from rendering proceedings nugatory, those powers must be exercised judicially and on a proper evidential foundation.

On service, the court applied Order 12, rules 28 and 31 of the High Court (Civil Procedure) Rules of Rivers State, 1987. An affidavit of service by a bailiff or process server is ordinarily prima facie evidence only where it sets out the fact, place, mode and date of service and identifies the document served. Once the Eleme Council denied service in its counter-affidavit, the appellant was required to answer that denial with evidence. Counsel’s submissions, however persuasive, could not replace evidence. The unexplained conflict between the affidavit of service and the respondents’ depositions meant that service on the second respondent had not been proved.

Failure to establish service deprived the High Court of jurisdiction over the affected party. The resulting proceedings were fundamentally defective and void ab initio, in accordance with the principles in Madukolu v. Nkemdilim and Skenconsult (Nig.) Ltd v. Ukey. A successful objection based on absence of service, being closely connected with fair hearing, prevents the court from proceeding to determine the merits.

Regarding legal personality, the court defined a juristic person as an artificial or legal person created or recognized by law and vested with rights and duties capable of being enforced in court. The ordinary categories include natural persons, incorporated companies, corporations sole, trade unions, partnerships and friendly societies, although the list is not exhaustive. Nevertheless, the capacity of an artificial body to sue or be sued is not automatic. It must be conferred expressly by statute, implied with sufficient clarity from the enabling legislation, or recognized by common law.

Section 12(1) of the Rivers State Chieftaincy Edict No. 5 of 1978 established a council of chiefs for each local government area. Section 13 assigned advisory functions relating to customs, traditions and matters referred by government. The Court held that these provisions merely recognized councils of chiefs and described their advisory functions. They did not state that the Eleme Council of Chiefs was a body corporate with perpetual succession, nor did they confer an express or sufficiently obvious implied power to sue or be sued. The council was therefore not a juristic person in its own name. The court distinguished The Provost, Alvan Ikoku College of Education v. Amuneke, where the enabling legislation contained clearer corporate features and statutory offices whose functions justified an inference of legal personality.

Court Findings

The Court of Appeal accepted that, under sections 73 and 74(1) of the Evidence Act, 1990, courts must take judicial notice of laws and enactments having force in Nigeria. It was therefore entitled to consider the Chieftaincy Edict even though the appellant had not fully canvassed it before the trial court. Judicial notice of the Edict, however, did not assist the appellant: the Edict’s recognition of the council and assignment of advisory functions did not create an independent legal personality.

The court also observed that the council could participate in litigation through a properly constituted representative action. The absence of capacity to sue or be sued in its corporate name did not mean that all claims connected with its activities were without remedy; it meant that the correct representative procedure had to be used.

Conclusion

Both appeals were dismissed. In Appeal No. CA/PH/92/2005, the refusal to grant the mandatory restorative injunction was upheld, principally because service on the second respondent had not been proved and the requested order concerned an act already carried out. In Appeal No. CA/PH/190/2005, the order striking out the Eleme Council of Chiefs as a non-juristic person was affirmed. The court made no order as to costs.

Significance

The decision is important for Nigerian civil procedure and public or customary institutions. It confirms that mandatory interlocutory relief requires careful consideration of fairness, practical benefit and potential prejudice. It also reinforces that service of process is jurisdictional, not a mere technicality, and that legal argument cannot cure a failure of proof. Most significantly, the case demonstrates that statutory recognition of a traditional council does not, without clear legislative language, confer corporate status or the capacity to sue and be sued. Parties dealing with such bodies must identify the legally proper representative capacity before commencing proceedings.