CORAM

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M.L. UWAIS, CHIEF JUSTICE NIGERIA

I.L. KUTIGI, JUSTICE, SUPREME COURT

U.A. KALGO, JUSTICE, SUPREME COURT

P. NNAMEKA-AGU – JUSTICE, SUPREME COURT

ESO, JUSTICE SUPREME COURT

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PARTIES

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CHIEF JOHN EZE APPELLANTS

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RESPONDENTS

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AREA(S) OF LAW

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SUMMARY OF FACTS

The appellant appealed against the decision of the trial court to the effect that his appointment to the traditional stool in dispute on the basis of the constitution of the community amended by the Governor was void on the grounds that he was not given pre- action notice and that the jurisdiction of the court was ousted

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HELD

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The court held that the requirement of pre action notice was waived because it was not raised during trial and that the appellant is not a public officer.

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ISSUES

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(1) Were the majority of the Justices of the Court of Appeal right when they held that section 11 (2) of the State Proceedings Law Cap. 131 Laws of Anambra State, 1986, was a special defence and that failing to raise it in the statement of defence was fatal to the case of the appellant?(2) Were the majority of the Justices of the Court of Appeal right when they held that the appellant as a recognized Traditional Ruler was not a public officer within the meaning of the provisions of Cap, 131 Laws of Anambra State 1986?(3) Does Decree No.13 of 1984 apply only to Decrees and Edicts and does not extend to other existing laws applied by the Military Governor?

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RATIONES DECIDENDI

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WHEN AN OUSTER CLAUSE CAN BE INVOKED

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Decree No. 13 of 1984 had its own scheme. The Military Government had to protect that scheme by which it would be enabled to act in abuse of the rule of law through Decrees and Edicts. To do so, it included the ouster clause so that no court would have the jurisdiction to entertain any action challenging its action or seeking redress therefrom. But the protection was limited to whatever was done under or pursuant to any Decree or Edict. Unless a court was confronted with any Decree or Edict, there could be no resort to the ouster clause- Uwaifo J.S.C.

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PRE ACTION NOTICE – WHETHER CAN BE WAIVED

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The incompetence of the action as a result of non-service of a pre-action notice resulting in the court being unable to exercise its jurisdiction to proceed with the hearing is an irregularity which is not such that cannot be waived by the defendant who has failed to raise it by motion or plead it in the statement of defence – Uwaifo J.S.C.

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CASES CITED

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Ademola II v. Thomas (1946) 2 WACA 81 at 89;Katsina Local Authority v. Makudawa (1971) 7 NSCC 119 at 124Okomu Oil Palm Co. Ltd v. Iserhienrhien (2001) F.W.L.R. (pt. 45) 670 at 689

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STATUTES REFERRED TO

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The 1979 ConstitutionThe Anambra State Proceedings Law, 1986Decree No. 13 of 1984

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