NTEILE & ORS v. ETUKURO & ORS CITATION: (2016) LPELR-41357(CA) In the Court of Appeal In the Calabar Judicial Division Holden at Calabar ON FRIDAY, 8TH JULY, 2016 Suit No: CA/C/221/2013 Before Their Lordships: CHIOMA EGONDU NWOSU-IHEME Justice, Court of Appeal ONYEKACHI AJA OTISI Justice, Court of Appeal PAUL OBI ELECHI Justice, Court of Appeal Between 1. CHIEF THOMAS AMES NTEILE 2. CHIEF ROWLAND UKIE AQUAN 3. PASTOR ROWLAND UKIE GWUNIREAMA 4. MR. PETER NTIELE 5. ELDER ISOTOK R. GWUNIEREAMA (For themselves and on behalf of Etetor Royal Family, Elile Community, Eastern Obolo) - Appellant(s) And 1. HON. HARRY JOHN ETUKURO (Alias HARRY JOHN ETETOR) 2. THE TRADITIONAL RULERS COUNCIL 3. THE COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS (Akwa Ibom State) 4. THE GOVERNOR OF AKWA IBOM STATE - Respondent(s) RATIO DECIDENDI (2016) LPELR-41357(CA)
Transcript
NTEILE & ORS v. ETUKURO & ORS
CITATION: (2016) LPELR-41357(CA)
In the Court of AppealIn the Calabar Judicial Division
Holden at Calabar
ON FRIDAY, 8TH JULY, 2016Suit No: CA/C/221/2013
Before Their Lordships:
CHIOMA EGONDU NWOSU-IHEME Justice, Court of AppealONYEKACHI AJA OTISI Justice, Court of AppealPAUL OBI ELECHI Justice, Court of Appeal
Between1. CHIEF THOMAS AMES NTEILE2. CHIEF ROWLAND UKIE AQUAN3. PASTOR ROWLAND UKIE GWUNIREAMA4. MR. PETER NTIELE5. ELDER ISOTOK R. GWUNIEREAMA(For themselves and on behalf of Etetor RoyalFamily, Elile Community, Eastern Obolo)
- Appellant(s)
And1. HON. HARRY JOHN ETUKURO(Alias HARRY JOHN ETETOR)2. THE TRADITIONAL RULERS COUNCIL3. THE COMMISSIONER FOR LOCAL GOVERNMENTAND CHIEFTAINCY AFFAIRS (Akwa Ibom State)4. THE GOVERNOR OF AKWA IBOM STATE
- Respondent(s)
RATIO DECIDENDI
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1. CHIEFTAINCY MATTERS - CHIEFTAINCYCONTEST: Ways in which a right to sue in achieftaincy contest may arise"...it may be necessary to consider the guidingprinciple on the right of a plaintiff to sue in achieftaincy contest. This was laid down in the locusclassicus of M. A. Eleso v. The Government of OgunState & 4 Ors. (1990) 2 NWLR (Pt. 133) 420 at 441wherein the Supreme Court held:"(a) The right of a Plaintiff to sue in a chieftaincycontest may arise in two different ways, viz:(a) the Plaintiff may by his statement of claim andevidence show that the right that is being asserted isthat of his family by reason of, say, their hereditaryinterest. In this type of case, it is the family, usuallythrough their representative, who can bring theaction on the premise that it is the civil right of thefamily that has been pleaded.(b) The Plaintiff may assert his own right to thechieftaincy stool. What is required in such a case, isthat his statements of claim and evidence - ifevidence has been called - should show the nature ofhis interest and his entitlement of the stool. In such acase, he has locus standi, by virtue of Section 6(6)(b) of the (1999) Constitution. See also Momoh v.Olotu (1970) 1 All NLR 117 at 123, Senator Adesanyav. President of the Federal Republic of Nigeria (1981)2 NCLR 358, (1981) 1 All NLR 1; Thomas v. Olusofoye(1986) 1 NWLR (Pt. 18) 669, Daramola v. A.G, OndoState (2000) 7 NWLR (Pt. 665) 440, Owodunmi v.Reg. Trustees of CCC (2000) 10 NWLR (Pt. 675) 315(SC); Ajagungbade III v. Laniyi (1999) 13 NWLR (Pt.633) 92."Per ELECHI, J.C.A. (Pp. 12-13, Paras. D-E) - read incontext
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2. C H I E F T A I N C Y M A T T E R S -SELECTION/APPOINTMENT OF CHIEFS: Position ofthe law as regards nomination and appointment of achief"The Law on the selection of a village head is veryclear and unambiguous. See Section 13(1) (a) of theTraditional Rulers Law Cap 134, Laws of Akwa IbomState 2000 which states."In the case of a vacancy, the clan or village shall inaccordance with its tradition, customs and usagesand subject to the provisions of Section 13(1) of thisLaw, select a person to fill the vacancy..."Per ELECHI,J.C.A. (P. 19, Paras. C-E) - read in context
3. PRACTICE AND PROCEDURE - RULES OF COURT:Whether rules of Court must be obeyed"In Solanke v. Somefun (1974) 1 SC 141, Sowemimo(JSC) as he then was opined:"Rules of Court are meant to be complied with...Rules of Court are made to be followed. Theyregulate matters in Court and help parties to presenttheir case for purpose of a fair and quick trial. It isthe strict compliance with these rules of Court thatmake for quicker administration of justice." SeeAladejobi v. NBA (2013) LPELR - 20940 (SC)."Per ELECHI, J.C.A. (Pp. 15-16, Paras. F-B) - read incontext
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PAUL OBI ELECHI, J.C.A. (Delivering the Leading
Judgment): This is an appeal against the final Judgment of
the High Court of Akwa Ibom State holden at Mkpat Enin
per Justice Edem Akpan which said Judgment was delivered
on the 28/3/2013 dismissing the claims and reliefs sought
by the Appellants.
Being dissatisfied, the Appellants have brought this appeal
challenging the decision of the Lower Court.
The Appellants on the 14/9/2011 instituted this suit
(AME/16/2011) against the Respondents at the High Court
of Akwa Ibom State. Their claims are:
(1) For a declaration that the 1st Appellant is the duly
selected village head of Elile village in Eastern Obolo
Local Government Area, Akwa Ibom State.
(2) A declaration that the 1st Respondent was never
selected and duly presented to the 2nd Respondent as
the village head of Elile village.
(3) A declaration that the issuance of certificate of
recognition to the 1st Respondent as the village head
of Elile village by the 4th Respondent is void and of
no effect.
(4) An Order for perpetual injunction restraining the
1st Respondent from holding out or parading himself
as
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the village head of Elile village and
(5) An Order compelling the 4th Respondent to issue
a certificate of recognition to the 1st Appellant as the
duly selected village head of Elile.
At the end of trial, the Learned trial Judge found as a fact
and in compliance with the Custom-Tradition and the Law
that the 1st Respondent was duly selected as the village
head of Elile village, Eastern Obolo Local Government Area
in 1995 during the burial ceremony of late Peter Aquan.
Consequently, the Appellant's case was dismissed with
N50,000.00 cost in favour of the 1st Respondent.
From the 4 grounds of Appeal, the Appellants distilled
two issues for determination viz:
(1) Whether the Learned trial Judge was right in
finding and holding that the Appellants Reply to the
1st Respondent's statement of claim was inchoate and
incompetent and proceeded to expunge it for want of
written statement on Oath accompanying it.
(2) Whether the Learned trial Judge was right when
he held that it appears to him that the 1st
Respondent was selected in accordance with the Law
and custom as the village head of Elile.
In arguing issue No. 1 above, it is Learned
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Appellants' submission that the Learned trial Judge gave an
erroneous construction and/or interpretation of Order 18
Rule 1 of the Akwa Ibom State High Court (Civil Procedure)
Rules 2009 which lured him to refuse to make use of
Exhibit 3 in the suit which accompanied the Appellant's
Reply to the 1st Respondent statement of defence, thereby
occasioning a miscarriage of justice. The said Exhibit 3 is
the funeral programme of one late Nehemiah A. Timothy, a
brother to the 1st Respondent where in the 1st Respondent
was mistakenly described as a member of Isibok family as
against his own claim that he hails from Etetor Royal
House. On this ground, he is now laying claim to the village
headship of Elile which is said to be the exclusive preserve
of the Royal family, Etetor Royal House to which the 1st
Respondent is but a grandson. He further submitted that if
the Learned trial Judge had considered Exhibit 3, he could
have arrived at a different verdict. See FATB LTD. v.
PARTNERSHIP COMPANY LTD. (2004) FWLR (Pt.
192) 167. As a result, he urged the Court of Appeal to take
up the evaluation of the evidence of the parties and exhibits
and accord them their probative
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value which the Lower Court failed to do. See EMENEGOR
v. THE STATE (2010) All FWLR (Pt. 511) 884 at 897.
He then urged the Court to resolve this issue in their favour
and allow the appeal.
On Issue No. 2 which is:
"Whether the Learned trial Judge was right when he
held that it appears to him that the 1st Respondent
was selected in accordance with the Law and custom
as the village head."
Learned Counsel stated that the bone of contention in this
suit is whether the 1st Respondent is from the Royal family
of Etetor and if the 1st Respondent purported selection as
the village head of Elile is supported by the Royal House of
Etetor whose birth right is to select and produce Elile
village head meant for the Royal House. The 1st
Respondent nonetheless claims that he is a bonafide son of
the Royal family and even bears the family name. As a
result of this any selection/presentation and/or approval of
a candidate without first been presented by the Ruling
house is void. Equally any such nomination without the
consent and approval of the family head is void ab initio.
See Olajunja v. Adejugbe (2002) FWLR (pt. 98) 910 at
924.
He then submitted
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that since the purported selection/presentation of the 1st
Respondent is being challenged by the Royal House as
same was not done with their consent this Court should
nullify same, allow the appeal and set aside the Judgment
of the Lower Court.
On Issue No. 3
"Whether the Learned trial Judge was right in finding
that the 1st Respondent's evidence was more credible,
accurate and probable than that of the Appellants."
Under this issue, Learned Appellants Counsel referred
copiously to the facts and submissions under Issue No. 2
and submitted that since the Royal family said that it did
not approve of the 1st Respondent purported nomination,
the 1st Respondent could not be so validly nominated and
as a result, the 1st Respondent evidence could not be said
to be more credible and accurate than that of the
Appellants and urged the Court to so hold and resolve this
issue on their favour. He then urged the Court to allow the
appeal.
The 1st Respondent in his Respondent's brief adopted all
the three issues raised by the Appellants as his.
In arguing issue No. 1 which is whether the learned trial
Judge was right in finding and holding that the
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Appellants reply to the 1st Respondents statement of
defence was inchoate and incompetent and proceed to
expunge it for want of written Statement of oath
accompanying it. Learned 1st Respondent Counsel
answered the question in the affirmative. He submitted that
by Order 18 Rule 1, the Reply of the Appellants was not in
compliance with Order 3 Rule 2 (1) (b) (e) & (d) which said
Reply to the 1st Respondent's statement of Defence should
have been "on oath" and not just reply to the Statement of
Defence. In other words, the said Reply was not on oath as
required by Order 2 Rule 1(c) of the High Court (Civil
Procedure) Rules 2009 of Akwa Ibom State. What it means
according to 1st Respondent Counsel is that the Learned
trial Judge gave a proper interpretation/construction of
Order 18 Rule 1 of the Akwa Ibom State High Court (Civil
Procedure) Rules 2009. Exhibit 3 which accompanied the
defective Reply by not being in compliance with the Rules
of Court was properly struck out.
Exhibit 3 was erroneously admitted in evidence and was
properly struck out in the course of evaluation of the
evidence before the Court. See INTERNATIONAL BANK
OF WEST AFRICA LTD V.
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IMANO (NIG) LTD (2001) VOL. 85 LRCN 995 at 1000
12 WACA 132 at 133; ESSO WEST AFRICA
INCORPORATED v. ALLI (1968) NMLR 414 at 423.
Since Exhibit 3 having not been front loaded in the said
Reply on Oath, the Appellants have failed to comply with
the Rules of Court, the Lower Court was therefore correct
when it described it as inchoate and therefore incompetent.
See ALADAJOBI v. NBA (2013) Vol. 55 NSCQR 179 at
183, OFORKIRE & ANOR v. MADUIKE & ORS (2003)
VOL 106 LRCN 799 at 801.
Rules of Court he submitted must be complied with. See
SOLANKE V. SOMEFUN (1974) 1 SC 141. The authority
of FATB LTD v. PARTNERSHIP INVESTMENT COY.
LTD (supra) cited by the Appellant according to Counsel
do not apply in this case as the facts are distinguishable.
He then urged the Court to resolve this issue on their
behalf and do dismiss the appeal.
On Issue No. 2 which is whether the Learned trial Judge
was right when he held that it appears to him that the 1st
Respondent was selected in accordance with the Law and
custom as the village head. Learned 1st Respondent
Counsel answered the above in the affirmative and that the
trial Judge was right in holding that the 1st
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Respondent was properly selected in accordance with Law
and custom as the village head as could be seen from
overwhelming evidence in Court. The Authority of
OLAGUNJA v. ADEJUDGE (supra) are not applicable in
this case as the case do not have the same facts. On this
issue, he urged the Court to resolve in their favour.
ISSUE 3
"Whether the Learned trial Judge was right in finding
that the 1st Respondent evidence was more probable
than that of the Appellant."
Learned 1st Respondent Counsel answered the above in the
affirmative because the evidence of the 1st Respondent was
more probable than that of the Appellant. The 1st
Respondent he stated was able to trace the genealogy of
Eletors Royal Family which is a member to the Eneyor
Usenegbe, the founder of Elile village. At page 38 of the
records, the 1st Respondent was able to establish how his
selection to succeed late Peter Aquan who died in 1994
came about and subsequent selection as the village head of
Elile Community contrary to the Appellants inability to do
same. On the basis of the above, Learned 1st Respondent
then urged the Court to hold that the trial Judge was right
to hold that the
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evidence of 1st Respondent was more probable than that of
the Appellants. He then urged the Court to resolve this
issue on their behalf and finally to dismiss the appeal for
lacking in merit.
For the 2nd-4th Respondents, all the issues formulated by
the Appellants were equally adopted by them for
consideration. According to Learned Counsel, he agreed
with the Learned trial Judge in finding and holding that the
Appellants Reply to the 1st Respondent statement of
defence was inchoate and incompetent and proceeded to
expunge same for want of written statement of claim on
oath accompanying it.
See Order 18 Rule 1 of the High Court of Akwa Ibom State
(Civil Procedure Rules) especially Order 3 Rule 2(1) a-d.
The operative word "SHALL" makes it mandatory that the
provision must be obeyed. See NWANKWO v. YAR-ADUA
(2011) 13 NWLR (Pt. 1263) 81 at 125; ONOCHIE v.
ODEGWU (2006) 6 NWLR (Pt. 975) 65 at 90. The
provisions of Order 2(1) (b-d) are very clear and the
mandatory effect palpable. The use of the word 'shall'
makes it mandatory for a claimant to file his witness
Statement on Oath along with his Reply. See BUHARI v.
INEC 36 2 NSCQR 475 at 778.
He argued
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that though the Appellants complied with the provisions of
Order 3 Rule 2(1) (d) but ignored the Provisions of the Rule
2 (1) (b) & (c). That if the Rule of Court intended to exclude
the list of witnesses and Statement of witnesses on oath
when filing a Reply it would not have included them. The
Court has no power to re-write the Law. See BUHARI v.
INEC 36 NSCQR 475. Therefore the Lower Court was
right to have refused to make use of Exhibit 3 in the
proceedings. He then urged the Court to resolve this issue
on behalf of the 2nd - 4th Respondents.
On Issue No. 2
"Whether the Learned trial Judge was right when he
held that it appears to him that the 1st Respondent
was selected in accordance with the Law and custom
as the village head."
He submitted right away that the answer to the above is in
the affirmative. The crux of the Appellants case is that the
1st Respondent is not a member of Eletor Royal Family and
therefore not qualified to be selected as the village head of
Elile and yet evidence abound from a witness that 1st
Respondent is a member of the said family and even served
as the secretary of Etetors Royal family for about five
years,
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without being challenged even as the family head of Etetor
Royal family.
With the above, Learned Respondent's Counsel then
submitted that the 1st Respondent was properly selected in
accordance with the Law and custom of Elile village.
The Law on selection of a village head is as provided in
Section 8(1) (a) of the Traditional Rulers Law Cap 134,
Laws of Akwa Ibom State 2000 which states that it shall be
in accordance with its tradition, custom and usages and
subject to the provisions of Section 13(1) of this Law which
deals on the qualification for the position of a village head.
Learned 2nd - 4th Respondent's Counsel submitted that
there was no dispute in the selection of the 1st Respondent
as the village head of Elile. He then urged the Court to
resolve this issue in their favour.
Issue No. 3
"Whether the Learned trial Judge was right that the
1st Respondent evidence was more credible, accurate
and probable than that of the Plaintiffs."
Learned Counsel submitted that when the evidence of both
the Appellants and that of the 1st Respondent are placed
side by side, the evidence of the 1st Respondent is more
credible, accurate and
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probable to sustain the Judgment of the trial Court. Also in
Order to determine the proper person to occupy a
chieftaincy stool, the history of the town as well as the
history of the chieftaincy stool are relevant. See Arowolo v.
Akapo (2007) All FWLR (Pt. 345) 200 at 208-209. In
this case, he contended that the 1st Respondent gave a
better history of the chieftaincy stool of Elile.
Finally, he urged the Court to dismiss the appeal and affirm
the Judgment of the trial Court.
Before going into resolving the issues formulated for
consideration it may be necessary to consider the guiding
principle on the right of a plaintiff to sue in a chieftaincy
contest. This was laid down in the locus classicus of M. A.
Eleso v. The Government of Ogun State & 4 Ors.
(1990) 2 NWLR (Pt. 133) 420 at 441 wherein the
Supreme Court held:
"(a) The right of a Plaintiff to sue in a chieftaincy
contest may arise in two different ways, viz:
(a) the Plaintiff may by his statement of claim and
evidence show that the right that is being asserted is
that of his family by reason of, say, their hereditary
interest. In this type of case, it is the family, usually
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through their representative, who can bring the
action on the premise that it is the civil right of the
family that has been pleaded.
(b) The Plaintiff may assert his own right to the
chieftaincy stool. What is required in such a case, is
that his statements of claim and evidence - if
evidence has been called - should show the nature of
his interest and his entitlement of the stool. In such a
case, he has locus standi, by virtue of Section 6(6) (b)
of the (1999) Constitution. See also Momoh v. Olotu
(1970) 1 All NLR 117 at 123, Senator Adesanya v.
President of the Federal Republic of Nigeria (1981) 2
NCLR 358, (1981) 1 All NLR 1; Thomas v. Olusofoye
(1986) 1 NWLR (Pt. 18) 669, Daramola v. A.G, Ondo
State (2000) 7 NWLR (Pt. 665) 440, Owodunmi v. Reg.
Trustees of CCC (2000) 10 NWLR (Pt. 675) 315 (SC);
Ajagungbade III v. Laniyi (1999) 13 NWLR (Pt. 633)
92.
In the instant case, the Appellants appear to adopt the first
option above since they are suing for themselves and on
behalf of Etetor Royal Family Elile Community, Eastern
Obolo. The Appellants as Plaintiffs at the Lower Court have
a duty to show through their statement of claim that the
right being
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asserted is that of their Etetor Royal Family, Elile
Community, Eastern Obolo.
The Law in the selection of a village head is as provided in
Section 8(1)(a) of the Traditional Rulers Law Cap 134, Laws
of Akwa Ibom State 2000 which states that it shall be in
accordance with the custom, tradition and usages and
subject to Section 13(1) of this qualification for the position
of the village head.
With the interest the Appellants showed in the Chieftaincy
stool, the Appellants commenced their action by a writ of
summons dated and filed on the 14th September, 2011
together with their statement of Claim, witness Statement
on oath of their witnesses and other accompanying
processes in compliance with Order 3 Rules 2(a) - (d) of the
Akwa Ibom State High Court (Civil Procedure) Rules 2009.
The Appellants filed a Plaintiff's Reply to the 1st
Respondents statement of defence admitted and marked
Exhibit 3. This said Exhibit 3 is what the Lower Court
described as inchoate and incompetent for want of witness
on oath accompanying it. This is the crux of the issue No. 1
as formulated by the Appellant viz:
"Whether the Learned trial Judge was right in
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holding and finding that the Appellants” Reply to the
1st Defendants/Respondents' Statement of claim was
inchoate and incompetent and proceeded to expunge
it for want of a written statement on Oath
accompanying it."
Section 18 Rule 1 of the High Court (Civil Procedure) Rules
2009 of Akwa Ibom State provides thus:
"Where the claimant desires to make a reply, he shall
file it within 14 days from the service of the defence
with accompanied documents if any in line with the
provisions of Order 3 Rule 2(1) (b) (c) & (d)."
Order 3 Rule 2(1) (b) (c) & (d) provides thus:
“All civil proceedings commenced by a writ of
summons shall be accompanied by:
(b) List of witnesses to be called at the trial
(c) Written statement on Oath of the witnesses
(d) Copies of every document to be filed on at the
trial.
The above is the statutory requirement in Law which has
prescribed a legal line of action for instituting or initiating
Court processes. All the above should be followed to the
letter as a rule of Court.
In Solanke v. Somefun (1974) 1 SC 141, Sowemimo
(JSC) as he then was opined:
"Rules of Court
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are meant to be complied with... Rules of Court are
made to be followed. They regulate matters in Court
and help parties to present their case for purpose of a
fair and quick trial. It is the strict compliance with
these rules of Court that make for quicker
administration of justice."
See Aladejobi v. NBA (2013) LPELR - 20940 (SC).
Having not fi led the Appellants reply to the 1st
Respondent's statement of defence in compliance with the
rules of Court, the Lower Court was therefore on the right
path to discountenance Exhibit 3 in the evaluation of
evidence at the Lower Court since the said document is
"inchoate and incomplete."
This is not a question of the Lower Court misinterpreting or
giving erroneous construction/interpretation of Order 18
Rule 1 of the Akwa Ibom State High Court (Civil Procedure)
Rules 2009 as submitted by the Appellant's counsel. The
said provision of the rule does not give any discretion to a
party as Appellant's Counsel wants to submit as regards the
word "if any" used in the rules. The word 'SHALL' as used
in Order 18 Rule 1 of the High Court of Akwa Ibom State
(Civil Procedure) Rules 2009 denotes an obligation
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or a command and gives no room for discretion. It imposes
a duty. A peremptory mandate is enjoined. See Bamaiyi v.
Attorney-General, Federation and Anor (2001) 12
NWLR (Pt. 277) 466 at 497; Nwankwo v. Yar'Adua
(2011) 13 NWLR (Pt. 1263) 81 at 125; Onochie v.
Odegun (2006) 6 NWLR (Pt.975) 66 at 90; Buhari v.
INEC 36 2 NSCQR 472 at 778.
In view of the above, I hereby resolve this issue in favour of
the Respondent and hereby hold that the trial Judge was
right in finding and holding that the Appellants reply to the
1st defendant (Respondent) statement of defence was
inchoate and incompetent and proceeded to expunge it for
want of witness statement on oath accompanying it.
On Issue No. 2 which is whether the learned trial Judge
was right when he held that it appears to him that the 1st
defendant (Respondent) was selected in accordance with
the Law and custom as the village head of Elile.
The crux of the Appellant's case is that the 1st Respondent
is not a member of Etetor Royal Family and is therefore not
qualified to be selected as the village head of Elile. This
assertion by the Appellants is not supported by his witness
who under cross-examination
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(PW1) stated at page 271 that "the 1st Respondent
actually served as the secretary, Etetor's Royal Family
for about five years" without any challenge from the
Royal family as to his non-membership of Etetor Royal
Family.
In his statement of defence, the 1st Respondent stated on
page 36 of the records that he is the family head of Etetor
Royal Family. This fact was not specifically denied and by
the rules of pleadings, it is deemed admitted. See Alhaji
