OGBONNA V. A.- G., IMO STATE.

• Pages: 103-138

OGBONNA V. A.- G., IMO STATE.

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103

OGBONNA V. A.- G., IMO STATE.

CHIEF EMMANUEL OGBONNA

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APPELLANT

V.

1.

THE ATTORNEY-GENERAL,

of IMO STATE.

2.

THE COMMISSIONER FOR

LOCAL GOVERNMENT

3.

DENNIS OGWUEGBU

4.

NZE CHARLES C. ONUOHA

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DEFENDANTS

APPEAL No. SC. 22/1990.

SUPREME COURT OF NIGERIA

UWAIS,

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J.S.C.

KARI B I-WHYTE ,

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J.S.C.

BELGORE,

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J.S.C.

NNAEMEKA-AGU, J.S.C.

AKPATA,

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J.S.C.

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7th February, 1992.

chieftaincy - Chieftaincy constitution - Interpretation of - Where enacting part not

ambiguous - Irrelevant to resort to preamble in aid of interpretation - Petition - Right

of unsuccessful candidate of chieftaincy selection to petition.

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Estoppel - Party who has accepted an irregularity - Estopped from complaining against

such irregularity - Concurrent conclusions on interpretation of document - Not to

qualify as concurrent finding - Appellate court not estopped from giving independent

judgment.

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Interpretation and Construction - Ambiguity in on enactment - How may it he discerned -

Preamble - Nature of - When it may aid interpretation - Whether conflict between

preamble and enabling provision is an ambiguity - Interpretation of sta tales - Relevance

of historical setting in aid of - Title - Object of - Interpretation of documents - Question

of law not facts - Principles of interpretation of documents - Same as interpretation of

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statutes.

Practice and Procedure - Counter claim - Whether amounts to an admission.

Words and Phrases - Ambiguity - Meaning of

ISSUES:

45 1. What is the nature of a preamble to an enactment?

2.

Whether to read a document as a whole means to give equal weight to all its

component parts-recitals, preambles and all?

3.

When may a preamble be resorted to as an aid to interpretation?

50 4. How may ambiguity in an enactment be discerned?

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NIGERIAN SUPREME COURT CASES

[1992] 1 N.S.C.C.

5.

What is the relevance of historical setting and antecedent of an enactment in

its interpretation?

6.

What is the object of a title in an enactment?

7.

What is the nature of a counter-claim and the effect of lack of defence to it?

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FACTS:

Before 1978 Amainyi-Ukwu and Amainyi-Nta existed in Etiti Division of Imo State

as two separate communities. However on the establishment of Autonomous

Communities in Imo State by law in 1978 the two voluntarily came together as

Amainyi Autonomous Communities. They agreed to have only one chief at a time 10

in order to reflect their new status and aspirations. They established for themselves

a constitution which was duly signed by their representatives. The constitution in

the document tendered and admitted in evidence in the trial court as exhibit A.

Eze S. Ogwuegbu the first traditional head of Amainyi Autonomous Community,

passed on in 1982. It was the contention of the plaintiff/appellant that going by

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exhibit A, the next traditional ruler should come from Amainyi Nta as exhibit A

provides for rotatory selection from the two component parts of Amainyi Autono-

mous Community and that the office of the traditional ruler was not hereditary.

I n the light of the plaintiff/appellant's claim in the trial court, the main issue before

that court was the proper interpretation to be given to the provision of exhibit A.

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In its judgment, the High Court held that the rotatory method of selection was

envisaged by the preamble of the Chieftaincy Constitution Exhibit A, but that its

enacting sections threw the contest wide open to any indigen of Amainyi nomi-

nated by any of the 27 wards and others who may wish to nominate themselves.

It was also held by the learned trial judge that the third defendant, the son of the

late traditional ruler was selected in accordance with the unambiguous provisions 25

of Articles 1, 2, 3, 4 and 5 of Exhibit A.

The plaintiff was dissatisfied with the judgment and appealed to the Court of

Appeal. The Court of Appeal agreed with the trial judge and was of the view that

there was no ambiguity in the enacting section of Exhibit A that would warrant

seeking the aid of the preamble to clarify. It also held that the plaintiff/ appellant

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having taken part in the contest for the selection and presentation of the traditional

ruler was estopped by conduct from submitting Exhibit A to the High Court for

interpretation.

The plaintiff still dissatisfied with the Court of Appeal judgment has appealed

to the Supreme Court upon five grounds of appeal.

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HELD:

1.

A preamble to an enactment is, as it were, its preface or introduction, the

purpose of which is to portray the interest of the framers and the mischief they

set out to remedy. It may sometimes serve as a key to open the understanding

of the enactment. Strictly, it is not a part of the enactment; hence most modern

statutes do not contain any preamble. So, as a general rule, it may not be

resorted to as an aid to interpretation except in some circumstances. (See

p.114, lines 20 - 23, & 25 - 28).

2.

A preamble is not of the same weight or importance as the enacting or

operative parts of the enactment. Indeed, it is emphasised that there may be

no exact correspondence between and the enactment and the latter may go

beyond or may fall short of the indications in the preamble. As it is so, it is

basically wrong to put forward an argument which in effect postulates that to

read the enactment as a whole entails raising its preamble to the pedestal of

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OGBONNA V. A.- G., IMO STATE.

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the enacting provisions and regarding any conflicts between them as evidence

of ambiguity. (See p.115, lines 3 - 10).

3.

A preamble needs not be looked at all if the enacting part is unambiguous. It

can only be resorted to as an aid to construction when there is an ambiguity

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or when there are two conflicting views as to the true meaning of the enactment

in which case that view which fits with the preamble ought to be preferred. That

is not the case here. (See p.115, lines 11 - 12, & 15 - 18).

4.

It is wrong to find ambiguity in a document or an enactment by comparing the

preamble with the enacting or operative part thereof. Ambiguity whether latent

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or patent, is discernible from the enacting or operative part of the enactment

alone without reference to the preamble. In the instant case, the enacting part

of exhibit A is therefore unambiguous as to the equality of each of the

twenty-seven wards making up the Autonomous Community for purposes of

sponsoring or selection of a candidate for the traditional rulership and

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chieftaincy. Strikingly, the enactment part makes no mention of the erstwhile

constituents units of Amainyi-Ukwu and Amainyi-Nta, less so as a basis for

nomination and selection of a traditional Ruler and Chief. Rather, it even

recognises the right of a person who has not been nominated by his ward to

present himself for selection. So it can be said that, as far as the enacting part

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goes, for all practical purposes at least the old schism between Amainyi-Ukwu

and Amainyi-Nta in the matter had been buried for good. There is, therefore,

no basis for finding any ambiguity in the enactment. (See p.115, lines 30 - 35).

5.

The historical setting and antecedent of an enactment may, in case of difficulty,

be aid to its interpretation. Indeed it is part of the so-called mischief rule - the

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rule in

Heydon's case.

The interpreter may call in aid those external historical

fact which may be necessary for the comprehension of the text of the

enactment. Although one can bear in mind such historical antecedents to an

enactment and the mischief which it set out to combat, these matters can only

be an aid to the construction of the words of the enactment. So, one cannot

encroach upon the legislative function by extending the scope or content of

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the enactment because of its historical antecedent or because one thinks that

a certain meaning was probably intended if the enactment itself is clear and

unambiguous and does not bear out such a meaning.

(See p.116, lines 41 -

51, & p.117, lines 1 - 2).

6.

The object of a title is for identification and not description. A title does not

necessarily control the content of the enactment. In the instant case, the title

of exhibit A looks more like a short title of the enactment. There is, therefore,

nothing in its operative part to preserve the separate identities of Amainyi-

Ukwu and Amainyi-Nta.

(See p.1 17, lines 15 - 19).

7.

A counter-claim is to all intends and purposes a separate action, although the

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defendant, for convenience and speed, usually joins it with his defence where

a court so grants leave. Indeed, riot only can a defendant apply for summary

judgment on his counter-claim but also a plaintiff may counter-claim on

defendant's counter-claim. Where a defendant counter-claims against the

plaintiff, the latter is duty bound to file a reply in defence to the counter-claim,

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otherwise the court is entitled, in fact obliged, to assume that the plaintiff has

no defence to the counter-claim and may enter judgment for the defendant

accordingly. This is because where a defendant pleads certain facts in his

pleading in support of his counter-claim with all the necessary particulars, but

the plaintiffs fails to reply to them, no issue is raised on such defendant's

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