Chief Lawrence O. Ngbongha & Ors V. Chief Gabriel A. Ebak & Ors (2016)

LawGlobal-Hub Lead Judgment Report

PAUL OBI ELECHI, J.C.A. 

The 1st to 3rd Appellants filed an action in the High Court of Cross River State, Obubra together with Chief Obaji O. Erim, Michael A. Ejim, Francis O. Ebingha and Orim Ogobi. The 4th to 7th to original Appellants filed an Affidavit dissociating themselves from the suit.

On the 6th July 2009, the Respondents filed their defence together with a Counter-Claim. The Counter-Claim then joined the 4th-6th Appellants as Defendants to the Counter-Claim on the 22nd October, 2010. Also the 1st-5th original Defendants brought an application to join the 7th to 19th Respondents and same was granted by the lower Court.

Thereupon, hearing on the matter commenced. However, while the hearing of the matter was going on, the 4th Respondent as the OHORODO of Okum started parading and functioning as such. As a result of this, the Appellants filed a Motion on Notice on 10th August 2010 seeking orders to restrain the 4th Respondents from so parading himself or functioning as the Ohorodo of Okum.

After hearing the Motion on Notice, the Learned trial Judge delivered its ruling

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on the 15th November 2010 and ordered for the accelerated hearing of the case rather than restraining the 4th Respondent. Thereafter, the hearing of the matter continued until Judgment was delivered on the 21st March 2012 dismissing the reliefs of the Appellants and granting the Counter-Claim of the Respondents except for damages which the Court did not award.

Against the said Judgment, the Appellants have filed this Appeal on the 20th April 2012 with four grounds of appeal. Four issues were distilled:
Issues for determination:
(1) “Whether the Learned trial Judge was right in upholding the selection and crowning of the 4th Respondent as the Ohorodo of Okum when the said selection and crowning took place during the pendency of the suit (Ground 2 of the grounds of appeal);
(2) Whether the trial Judge was not in grave error to have validated the appointment/selection and crowning of the 4th Respondent as the Ohorodo of Okum when none of the parties sought for such a relief (ground 4 of the grounds of appeal);
?(3) Whether the non-appearance of the 1st Claimant (Appellant) in Court to adopt his written statement an oath affected his

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claim to the right of the 4th Appellant being properly crowned as the regent (Ground 3 of the grounds of appeal);
(4) Whether Exh. H relied on by the lower Court in recognizing the 4th Respondent as the regent actually recommended the 4th Respondent to be crowned as the regent (Ground 1 of the grounds of appeal).”

In arguing issue No. 1 above Mr. Agbor for the Appellants stated that the relief of the Appellants amongst other is:
An order restraining the Defendants (Respondents) their agents or assigns from interfering with the chieftaincy stool of Ohorodo of Okum”. The Appellants he stated led evidence in Court as per their pleadings in the statement of claim on the procedure of choosing a regent after which the chieftaincy stool of Ohorodo can be filled. Of greater importance is that it must be after the burial ceremonies of the deceased Ohorodo that the election and selection of now Ohorodo can be contemplated.

The Respondent made the same condition precedent in their Statement of Defence filed on the 6th July 2009 on the selection process of a new Ohorodo of Okum.

From the pleadings filed by both parties, the Learned trial

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Judge was aware that the selection into the stool of Ohorodo was in issue and that necessitated the Appellants to file a Motion on Notice to restrain the 4th Respondent from parading himself as the Ohorodo of Okum even though the Motion was refused and an accelerated hearing of the case was ordered in its place by the lower Court.

In spite of the above, the Learned trial Judge in its Judgment dismissed the Appellants case and granted the Counter-Claim of the Respondents.

According to Mr. Agbor, the proper procedure was not followed before the purported installation of a new stool of Ohorodo on the 4th Respondent. Worse still, he contended is that it was done during the pendency of Suit No. HB/18/2009 with the sole purpose to overreach the Appellants. On that basis, he urged the Court to set it aside and consequently resolve this issue one in their favour.

ISSUE 2
“Whether the trial Judge was not in grave error to have validated the appointment/selection and crowing of the 4th Respondent as the Ohorodo of Okum when none of the parties sought for such a relief (Ground 4 of the grounds of appeal).”
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According to Mr. Agbor, Learned

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Appellant Counsel, none of the parties as per their pleadings and even evidence in Court sought a relief from the Lower Court to recognise or validate the election/selection of the 4th Respondent as the Ohorodo of Okum kingdom. Also there is no pleading that a new Ohorodo in the person of the 4th Appellant had been elected/crowned on the 21st March 2010. Therefore, it was wrong for the trial Court to grant a relief to the Respondent which said relief of the crowning of the 4th Respondent was never sought for. He then urged the Court to resolve this issue in their favour.

ISSUE No. 3
“Whether the non-appearance of the 1st Claimant (Appellant) in Court to adopt his written statement on Oath affected his claim to the right of the 3rd Appellant being properly crowned as the regent (Ground 3 of the grounds of appeal).”

In arguing this issue, Mr. Agbor for the Respondent stated that the 1st Appellant initiated this action along with six others. Along the line, the 4th to 7th Appellants filed an affidavit dissociating themselves from the suit. One CW2 Ojukwa Okey Ebey gave evidence and adopted two statements made on Oath. The first statement on

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Oath was in response to the claim as filed by the Appellant while the second was in proof of the defence to the Counter-Claim filed by the Respondents. The evidence of CW2 is clearly in alignment with the sworn statement of the 1st Appellant. The Appellants according to Mr. Agbor filed a joint statement of claim and all issues affecting their case were all pleaded jointly. And so, the sworn statement of CW2 is exactly the same with that of the 1st Appellant. Therefore, it would have served no other purpose even if the 1st Appellant had given evidence other than to chorus what the CW2 gave in evidence. See MADUABUM v. NWOSU (2009) 40 WRN 76.

Learned Counsel then contended that the striking out of the sworn Statement of 1st Appellant by the trial Court did not and cannot be interpreted to mean that his evidence is also discontinued.
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The 3rd Respondent did not himself give evidence during trial and so the trial Judge could not have come to the conclusion that the 3rd Respondent showed more interest than the 3rd Appellant. Based on this wrong assumption by the trial, Learned Counsel urged the Court to resolve this issue in their

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favour.

ISSUE No.4
“Whether Exhibit H relied on by the lower Court in recognizing the 4th Respondent as the regent actually recommended him to be crowned as the regent (ground one of the grounds of appeal).”

To argue this issue, Mr. Agbor for the Respondents stated that the king makers 1st Appellant and 8th Respondent accepted and implemented the contents of Exhibit D. The contents of Exhibit D amongst other facts are that late Mgbak Isua signed and collected the items of the chieftaincy stool for custody pending the appointment of a regent at the crowning ceremony. After the crowning of the 4th Appellant by the 8th Respondent and 1st Appellant by kingmakers as a Regent, the items of the Ohorodo chieftaincy were removed and handed over from Mgbak Isua to 3rd Appellant in line with the contents of Exhibit D.

It goes without saying that Late Mgbak Isua was never the first to be appointed Regent in the strict meaning. Also even if the argument is to be stretched further that Mgbak Isua was subsequently crowned as the Regent in line with Exhibit H, the same argument cannot be advanced for the crowning of 3rd Respondent as the name of

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the 3rd Respondent was never mentioned in Exhibit H. Mr. Agbor further stated in his argument that Exhibit H clearly recognizes that Mgbak Isua is to be crowned a Regent and the kingmakers who crowned 3rd Appellant rather than Mgbak Isua were even penalized. He pointed out that Exhibit H was executed on the 29th September, 2008 and the Respondents did not give the date when the 3rd Respondent was crowned and even the 8th Respondent who did the coronation denied the existence of Exhibit H as could be seen from the record of appeal page 250.

On the basis of the above, he submitted that since the principal witnesses who did the crowning of the Regent have denied deriving authority from Exhibit H, then the conclusion of the trial Court that Exhibit H binds both parties is therefore a misnomer and should be set aside by this Court. As well the conclusion of the trial Judge that the contents of Exhibit H does not support the findings that 3rd Respondent was crowned the Regent in accordance with the recommendations of the arbitrators as contained in Exhibit H.
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He then urged the Court to resolve this issue in their favour and to uphold the appeal and

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set aside the Judgment of the Lower Court.

In reply, the Respondents formulated four issues for determination.
(1) Granted that the Appellants could seek an ancillary relief per se in their relief No. 3, and lis pendens doctrine can be applied not only to real property but to status; whither the Appellants claim pleaded and in any way led evidence of entitlement to the Ohorodo of Okum stool for which the doctrine of lis pendens could be invoked? (Formulated from ground 2).
(2) Whether the Learned trial Judge by his Judgment and orders upheld any coronation of the 4th Respondent as the Ohorodo of Okum? (Formulated from ground 4).
(3) Whether the Learned trial Judge by any stretch of imagination reached the conclusion that the absence or non-appearance of the 1st Appellant in Court to conduct their case affected the merits of their case?
(4) Whether, upon the totality of the evidence before the trial Court (rather than just Exhibit H alone) the Learned trial Judge’s finding and conclusion that the 3rd Respondent was the proper regent of the Ohorodo of Okum stool was apt?

?To argue Issue No. 1 above, Respondent’s Counsel Mr.

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Ejukwa stated that from the reliefs sought by the Appellants, there is no where they sought that they are or any of them was entitled to the Ohorodo Chieftaincy stool either of Appiapum (if any) or of the Okum kingdom. Rather in their 3rd relief they sought on injunction order.
“Restraining the Defendants their agents or assigns from interfering with the chieftaincy stool of Ohorodo of Okum”.

Such injunctive relief is in apt for the stool of Ohorodo of Okum; as none of the Appellants claimed entitlement to the stool. Equally, Mr. Ejukwa contended that no evidence was led by the Appellants to entitle them to neither stool nor pleadings either in support and the condition for the application of lis pendens. See CLAY INDUSTRIES (NIG.) LTD. v. AINA (1997) 7 SCNJ 491. See ODUKWE v. OGUNBUJI (1998) 5 SCNJ 102 at 121. Mr. Ejukwa then submitted that the doctrine of lis pendens does not apply to this case. See AJANON vs AKANNI (1993) 12 SCNJ 32 at 43, NETWORK SECURITY LTD. v. DAHIRU (2008) ALL FWLR (Pt. 419) 475 UMOH v. TITA (1999) 12 NWLR (Pt. 631) 427 at 436.

Since the doctrine does not apply in this case, Mr. Ejukwa then urged the Court to

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resolve this issue in their favour.

Under Issue No. 2
“Whether the Learned trial Judge by his Judgment and orders upheld any coronation of the 4th Respondent as the Ohorodo of Okuma”

Under this issue, Mr. Ejukwa submitted that the Learned trial Judges’ remark – “that there was Ohorodo in place and the Appellants have refused to challenge the right of the holder” does not constitute an award of a relief never sought and argued by the Appellants.

As a result, the authorities cited in support by the Appellants do not apply. He then urged the Court to resolve this issue in their favour.

ISSUE 3
“Whether the Learned trial Judge by any stretch of imagination reached the conclusion that the absence or non-appearance in Court to conduct their case affected the merits of their case?

It is Learned Counsel’s submission under this issue that the Appellants have not shown or established that they belonged to one of the disputed families but must go further to state in their Statement of Claim how their interest in the chieftaincy stool arose.
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It is on that note that Learned Respondent Counsel submitted and urged the

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Court to hold that, whereas the trial Court never reached the conclusion that the absence or non-appearance of the 1st Appellant in Court to multiply the Appellants witnesses affected the merit of their case; the Court rightly held the view that the Appellant’s failure to call the evidence of the 1st Appellant to make for quality or credible evidence they required, was a disservice to their case. He then urged the Court to resolve this issue in their favour.

ISSUE No. 4
“Whether, upon the totality of the evidence before the trial Court (rather than just Exhibit H alone) the Learned trial Judge’s finding and conclusion that the 3rd Respondent was the proper regent of the Ohorodo of Okum stool, was apt?

?Learned Respondent Counsel urged the Court to discountenance the Appellant’s evasive Issue No. 4 and the arguments thereof. This is so because the issue as formulated and argued failed to appropriate the omnibus ground of appeal and or to attack the findings and holding of the Court below. See ALABI v. KWARA STATE POLYTECHNIC (2013) ALL FWLR (Pt. 683) 1926 at 1950: ABDUL-RAHEEM v. OLORUNTOBA-OJU (2007) ALL FWLR (Pt. 354) 267 at 282. He then

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urged the Court to resolve this issue in their favour and to dismiss the appeal based on the arguments and submissions professed above.

In a reply brief filed on the 1/4/2014, the Learned Appellant Counsel stated that the crowning over-reached the Appellants as the crowning of the Regent was a condition precedent to the crowning of the Ohorodo. See AMAECHI v. INEC (2009) 4 EPR 90.

He submitted that in spite of the two conflicting Judgments of the Supreme Court on chieftaincy issue, the Court is allowed to follow the latest decision on the issue. See OSIKWE v. F.C.E, ASABA (2010) 10 NWLR (Pt. 1201); MKPEDEM v. UDO (2000) 9 NWLR (Pt. 673) 631.

On whether the trial Judge was not in grave error to have validated the appointment/selection and crowning of the 4th Respondent as the Ohorodo of Okum when none of the parties sought for same, he submitted that the trial Judge upheld the election of the 4th Respondent as a ratio in the matter. This is so because the decision affected the 3rd relief of the Appellants as the Ohorodo stool was in dispute. Also that the trial Court had by earlier pronouncements in the body of the Judgment taken a

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decision concerning and touching on the Ohorodo stool that affects the rights of the Appellants as they have always shown through the pleadings and evidence that they are entitled to the Ohorodo chieftaincy title. He then urged the Court to allow the appeal.

In resolving all the issues raised in this appeal, I shall and hereby take them as stated by parties. The Respondents’ Counsel appears to have adopted the issues raised by the Appellant as could be seen in their own. As a result, therefore, the issues as stated by the Appellant will be taken as the issues in contest in this appeal and will be considered and resolved accordingly.

Issue No. 1 of the Appellants’ brief of argument is to the effect of whether the Learned trial Judge was right in upholding the selection and crowning of the 3rd Respondent as the Ohorodo of Okum when some took place during the pendency of suit No. HB/18/2009 (ground 2 of the grounds of appeal). The above named suit which provoked the filing of this appeal was filed on the 24th June, 2009, while the 3rd Respondent was crowned into the stool of Ohorodo of Okum on the 21st March 2010 while Suit No. HB/18/2009 was

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still pending in Court. The common question that is being raised by both parties to this appeal is:
“Whether the doctrine of lis pendens applies to this case or not”.

Learned Respondent Counsel had submitted that the doctrine of lis pendens does not apply in this case. That it only applies to a suit in which the object is to recover or assert title to a specific property. See AJAWON v. AKANNI (1993) 12 SCNJ 32 at 43 BARCLAYS BANK OF NIGERIA LTD. v. ASHIRU (1978) 6-7 S.C. 99, NETWORK SECURITY LTD. v. DAHIRU (2008) ALL FWLR (Pt. 419) 475 at 493, UMOH v. TITA (1999) 12 NWLR (Pt. 63) 427 at 436.

The above authorities though germane as they appear to look. However, the Supreme Court of Nigeria as the Apex Court has taken the doctrine from the realm of property and invoked same in ordinary cases where parties have a duty to preserve the subject matter in dispute and not foist a fait accompli on the Court and the power of the Court to reverse action taken pendente. Therefore, parties to a proceeding pending in Court ought not to do anything which may have the effect of rendering nugatory the Judgment of the Court. A party may not alter to his

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advantage or disadvantage of his opponent issues in contest in a pending suit. By the principle of stare decisis, the decision of the Apex Court is binding on all other lower Courts. See OBI v. INEC (2007) 11 NWLR (Pt. 1046) page 565. DR. EMMANEUL ANDI UBA v. DAME VIRGY ETIABA & ORS. (2008) 6 NWLR (Pt. 1067) Also in AMAECHI v. INEC (2009) LPER 90, the Supreme Court held thus:
“The doctrine of LIS PENDENS finds expression in the assertion that it prevents any transfer of any right or the taking of any steps capable of foisting a state of helplessness and/or hopelessness on the parties or the Court. By that doctrine, the law does not allow to litigant parties or to give them during the currency of the litigation involving the rights in it so as to prejudice any of the litigating parties. The doctrine negates and disallows any transfer of rights or interest in any subject matter that is being litigated upon during the pendency of litigation in respect of the said subject matter, The well known maxim is “Pendette like NIHIL innoveture” meaning: During a litigation. Nothing new should be introduced”.
?

From the facts established in this matter, it is

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common ground that the 4th Respondent was crowned as the Ohorodo of Okum on the 1st of March 2010 after the burial of the late Ohorodo notwithstanding the pendency of Suit No. HB/18/2009 relative to who should lawfully occupy that stool and also when the stool of the Ohorodo of Okum is still in dispute. The Ohorodo of Okum or the person who should occupy some is the subject matter of this appeal. The light to the subject matter was already in Court for adjudication before the 4th Respondent cohorts went and got him crowned as the Ohorodo of Okum.

From the facts of this case, as set out above, it is my humble view that the doctrine of lis pendens applies to this case. This is because, the selection/recognition and crowning of the 4th Respondent as the Ohorodo of Okum was founded upon an illegal and/or unlawful selection and crowning which is null and void. On the basis of that, I hereby resolve this issue in favour of the Appellant.
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Issue No. 2 – this is to the effect that whether the Learned trial Judge was not in error to have validated the appointment/selection and crowning for the 4th Respondent as the Ohorodo of Okum when none of the

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parties sought for such a relief. This issue is distilled from ground four of the grounds of appeal. The Appellant’s Counsel had an axe to grind with the Learned trial Judge’s remark in the Judgment when he stated thus:
“There is already a new Ohorodo in the stool, then there is no question as to restraining the Defendants from interfering with the chieftaincy stool of the Ohorodo”.

In addressing this issue, the Learned Respondents’ Counsel contended that even though trial Court in considering a case before it can pass comments on the matters of the case, such comments as in this case do not form the Judgment or constitute an award by the Court or a decision to ground an appeal. According to the Appellants, none of the parties sought for the relief to recognize and/or validate the election/selection of the 4th Respondent as the Ohorodo of Okum kingdom. The above observation by the trial Judge whether made as an award or Judgment or not is highly pre-judicial to the Appellants’ case as it weighed down in the mind of the Court in arriving of its conclusion on the subject matter of this appeal. In addition, the Respondents in their Counter-Claim

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never sought a relief of that nature nor did they plead any fact in their pleadings to the effect that a new Ohorodo of Okum in the person of the 4th Respondent had been elected/crowned on the 21st March 2010. This remark by the Judge if so called is directly upon a question before him and upon a point necessarily involved in the determination of the cause of action before it.
Issues it must be emphasized are joined in the pleadings. See ADEOSUN v. ADISA (1986) 5 NWLR (Pt. 40) 225 at 235, AKINTOLA v. SOLANO (1986) 2 NWLR (Pt. 24) 598 at 623.

And so, the aforementioned remark of the trial Court which does not arise from the pleadings has occasioned a miscarriage of justice. Therefore, the Judgment arrived at against the background of the obiter dictum cannot stand as it is part of the ratio decidendi. Based on that, I hereby resolve this issue in favour of the Appellant.

On issue 3 whether the non-appearance of the 1st Claimant (Appellant) in Court to adopt his written statement on Oath affected his claim to the right of the 3rd Appellant being properly crowned as the regent (ground 3 of the grounds of appeal). One issue clear here is

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that the Appellants filed a joint statement of claim and all of them are pursuing one cause and one line of prosecuting their case from the facts pleaded jointly.
Even though the 1st Appellant never gave evidence nor adopt his written statement on Oath that ought not to affect the merit of his case. After all, a party is not bound to testify in person, provided that he has other witnesses to prove his case and demolish his opponents’ case. If the evidence led by other witnesses met the requirements just highlighted, then it was totally immaterial that the 1st Appellant did not testify in Person. Therefore, the question as to who has the burden of calling him or explaining his failure to be in Court was totally irrelevant. Therefore, the Court’s view that the Appellant’s failure to call the 1st Appellant to make for the quality or credible evidence they required was a disservice to their case was not apt in the circumstance. After all, it is not the quantity of evidence that matters in an action but the quality; therefore, it is not necessary for a plaintiff or an Appellant to call every witness he contemplates. See OYEGOKE v. IRIGUNA (2001) FWLR (Pt. 75)

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448. In SAMUEL ONNUJUBA & ORS. v. NATHANIEL OBIENU & ORS (1991) 4 NWLR (Pt. 183) 16, S. KAWU, JSC held that:
“In a civil action, a party is not obliged to call a particular witness if he can establish his action otherwise”.

In the instant case, it cannot be said that without the evidence of the 1st Appellant, the other witnesses in the joint cause of action, the Appellant’s could not have proved their claim. The Respondent argument on this Issue No. 3 went beyond the issue at stake and into the credibility of the witness evidence in Court. I agree with the submission of the Learned Appellants’ Counsel that whether or not, the Appellant was in Court or not ought not to have affected the merit of his case: as it is not only the 1st Appellant that was not in Court but also the 3rd Respondent was not in Court to give evidence as well. In view of the above, I hereby resolve issue No. 3 in favour of the Appellant and against the Respondents.

Under Issue No. 4 which is whether Exhibit H relied on by the lower Court in recognizing the 3rd Respondent actually recommended the 3rd Respondent to be crowned as the Regent – ground one of the

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grounds of appeal.

The said Exhibit D is a temporary receipt by late Mgbak Isua and witnessed by Denis Obaji Erim and Francis O. Ebingha to the effect that late Mgbak Isua signed and collected the items of the chieftaincy stool for custody purpose pending when a regent shall be appointed Exhibit H is a Resolution/Recommendations of a committee of Appiapum community in general. The said arbitration according to custom is binding on all the parties connected thereto. Paragraph 10 of the said recommendation as shown on page 327 of the records show clearly that Mgbak Isua is recommended to be sworn in as the regent. For breaching the contents of Exhibit H, the king makers who purportedly crowned the 3rd Respondent rather than crowning Mgbak Isua were penalized as could be seen in paragraph 13(a) reads thus:
“… sequel to the above, this committee is compelled to place on Hon. Eroma and his group, a traditional fine of a life cow, in addition to all the traditionally associated items that usually follow. In the alternative, they can pay a monetary substituted fee of N35,000.00…”. The name of the 3rd Respondent was not shown to be in Exhibit H nor

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did he contest the regency with the 3rd Appellant as the date of such coronation is yet unknown even though Exhibit H was executed on 29th September, 2008″.

Therefore, I do not understand how the Learned trial Judge found that from the totality of the evidence (not on Exhibit H alone) that as between the 3rd Appellant and 3rd Respondent, the 3rd Respondent was the rightful regent of Ohorodo of Okum stool. Therefore, the contents of Exhibit H does not support the finds and conclusion of the Learned trial Judge that the 3rd Respondent was crowned regent in accordance with the recommendations of the arbitration in Exhibit H. The 3rd Respondent was therefore not the proper regent of Ohorodo of Okum. His coronation was not apt and on the basis of that amongst others, I do hereby resolve issue No. 4 in favour of the Appellants and against the Respondents.

Having resolved all the four issues in this appeal against the Respondents, I do hereby hold that the appeal has merit and it is hereby sustained. Accordingly, I hereby allow the appeal and consequently set aside the Judgment of Hon. Justice Adie Attoe-Onyebueke on the 21st March 2012 in Suit No.

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HB/18/2009.

I assess and fix cost of this action at N50,000.00 in favour of the Appellant.

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Other Citations: (2016)LCN/8701(CA)