Eteidung Ukpong Williams & Anor V. Chief Akpan Amos Udofia & Ors (2016)
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JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
This is in respect of an appeal against the judgment of the High Court of Akwa Ibom State sitting at Eket Judicial Division delivered by OBOT J. on the 24th February, 2014.
The appellants were defendants in a suit initiated by the respondents which then included two other deceased family heads of Nung Oku Ekanem Village in Onna Local Government Area of Akwa Ibom State in respect of a dispute over the selection of a new Eteidung or Village Head for the said Nung Oku Ekanem Village. In the said action, the respondents/plaintiffs sought the following reliefs:
1. A declaration that the first defendant, not being a member of the ruling families of Nung Okpubak/Nung Ekpo Ituen in Nung Oku Ekanem Village is not qualified to be the Village Head (Eteidung) of Nung Oku Ekanem village and moreover as the first defendant has never been selected as the village Head (Eteidung) by the plaintiffs who are the King makers of Nung Oku Ekanem Village.
2. An order of injunction restraining the first defendant from parading himself and or acting in any manner whatsoever as the Village Head
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elect and or substantive Village- Head (Eteidung) of Nung Oku Ekanem Village in Onna Local Government Area.
3. A declaration that 8 plaintiff is the village Head (Eteidury) elect of Nung Oku Ekanem Village, having been duly selected and/or elected by 7 out of 9 members of the Nung Oku Ekanem village King Makers Council on 30th June, 2007 at the said village council hall and had duly performed the required chieftaincy rites in accordance with the custom and tradition of the said village.
4. An order of injunction restraining the 2nd defendant from interfering in any manner whatsoever in the presentation of the 8th plaintiff to the Awa Clan Council and ultimately the Onna Local Government Traditional Rulers council as the village Head Elect of Nung Oku Ekanem Village in Onna Local Government Area.
On being served with the originating processes, the two appellants/defendants had legal representation but only the 1st appellant/1st defendant joined issues with the respondents/plaintiffs via pleadings and took active steps to contest the action.
?Before the commencement of trial the appellants/defendants objected to the competence of suit but were
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overruled in a considered ruling. At trial, the respondents/plaintiffs led evidence to show that the 8th plaintiff, now 6th respondent/plaintiff, due to the demise of two of the plaintiffs in the course of the action, was from a ruling family in Nung Oku Ekanem Village and was validly selected by a majority of the King makers as the Eteidung or village Head Elect of Nung oku Ekanem Village. The case of the appellants/defendants on the other hand was that the said 8th later 6th respondent/plaintiff was not eligible to be selected as he was not from one of the ruling families in Nung Oku Ekanem Village and that the kingmakers in the said Nung Oku Ekanem were restricted to the two heads of the ruling families who had picked the 1st appellant/defendant as the Eteidung or Village Head and had presented him successfully to the Awa Clan Council as well as the Onna Local Government Traditional Rulers Council.
At the end of the trial and final addresses of counsel, the learned trial Judge in a reserved judgment delivered as aforesaid on the 24th February, 2014 found for the respondents/plaintiffs and granted their reliefs.
?Obviously peeved at this
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development, the appellants invoked the appellate jurisdiction of this Court via a notice of appeal filed on the 22nd May, 2014 containing 5 grounds.
?At the hearing of the appeal, Mr. Akpan the learned counsel for the appellant adopted his appellants’ brief filed on the 10th April, 2015 but deemed properly filed and served on the 29th September, 2015 as the arguments of the appellants in this appeal.
The learned counsel for the respondents was absent in Court but the respondents’ brief settled by Mr. Etuk filed on the 20th January, 2016 but deemed properly filed and served on the 27th April, 2016 was in accordance with Order 18 Rule 9 (4) of the Rules of this Court, deemed adopted as the arguments of the respondents in this appeal.
The appellants distilled three issues for determination from their five grounds of appeal, which issues were adopted by the respondents. The said issues are:
1. Whether the trial Court had jurisdiction to entertain and grant the reliefs sought by the plaintiffs/respondents in this action now on appeal as the condition precedent to the commencement of this action was not fulfilled by the plaintiffs/respondents
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before the institution of this action.
2. Whether the trial Court was right when it entered judgment for the plaintiffs/respondents when the plaintiffs/respondents did not prove their case as required by law.
3. Whether the trial Court was right when it made an order declaring the ruling families in Nung Oku Ekanem to be four when the issue of the number of ruling families in Nung Oku Ekanem village was not before it.
Arguing the first issue, the learned counsel for the appellants Mr. Akpan submitted that the respondents failed to exhaust the pre-action protocol stipulated by the Traditional Rulers Law of Akwa Ibom State before embarking on this litigation exercise as the mandatory notice stipulated under Section 9 (1) thereof was not complied with thereby rendering the action incompetent. He referred to EGUAMWENSE v. AMAGHIZEMWEN (1993) 9 NWLR (pt. 315) 1 at 25 and 30, ADESOLA v. ABIDOYE (1999) 14 NWLR (pt. 637) 28 at 59, BAMISILE v. OSASUYI (2007) 9 NWLR (pt. 1042) 225 at 272 and FALOYE v. OMOSENI (2001) 9 NWLR (PT. 717) 190.
For the respondents, their learned counsel Mr. Etuk analyzed the provisions of Section 9(1) of the Traditional
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Rulers Law of Akwa Ibom State and submitted that steps taken by the respondents were in substantial compliance therewith as the situation here was outside the contemplation of the said Law as there was no failure by the family heads to select a village head.
The issue raised and argued here goes to jurisdiction and challenges the very foundation of the entire adjudicatory process. Where a regulating statute prescribes a mode of redress, it is unacceptable for parties to approach the Court without exhausting the avenues prescribed under the said law. As any such premature approach will render such an action incompetent and deprive the Court of the necessary jurisdiction. See ADESOLA v. ABIDOYE NSCQR (1999) NSCQR 416; (1999) 14 NWLR (PT. 637) 28 and UMARU v. ABDUL-MUTALLABI (1998) 11 NWLR (PT 573) 247.
It is trite that no matter how well a case was adjudicated or the extent of industry applied in the course thereof, once it is found that the Court acted without jurisdiction, then the entire exercise amounts to a nullity. See ADESOLA V. ABIDOYE (SUPRA), TIMITIMI V. AMABEBE & ORS 14 WACA 374 and MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587.
?It is
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also the law that where a Court is devoid of jurisdiction, the parties cannot by consent confer jurisdiction. See OKOTIE EBOH VS OKOTIE-EBOH (1986) NWLR (PT 16) 264.
For a proper appreciation of the contention here, it is apposite to set out the provisions of Section 9 of the Traditional Rulers Law of Akwa Ibom State as follows:
Section 9 (1) Where there is a dispute in the selection of the traditional ruler and the dispute is such that the clan or village fails to select a person as the Clan Head or where there is a dispute as to the right of a person to remain a Clan Head or a Village Head under Section 13(1) of this Law the Clan or Village, as the case may be shall inform the council of the area in writing of the existence of the dispute.
(2) Where a council having considered the report of a selection made to it in accordance with Section 8(1) of this Law is not satisfied that the person selected is the rightful person to Clan Head or Village Head of the area concerned or where the council is not satisfied that the person selected is qualified in accordance with Section 13 (1) of this Law to be accorded recognition as traditional, the
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council shall declare that selection to be a disputed selection.
(3) Within one month after receiving a report of a dispute under Sub-section (1) of this Section, or after declaring a selection to be disputed under Sub-section (2) of this Section, the council shall proceed to inquire into the dispute with a view to ascertaining the person qualified by tradition, custom and usages and in accordance with the provisions of this Law to be the Clan or, as the case may be, the Village Head.
?It is vital that the words of a statute be interpreted by the Courts as would manifest the intention of the legislature. See TAIWO v. ADEGBORO (2011) 46 NSCQR 82 at 102 and OLOFU & ORS VS ITODO & ORS (2010) 44 NSCQR 598-599.
The provisions of Section 9(1) stated above ordinarily expect that a report of any dispute in the selection of a Village Head be made to the Local Government Traditional Rulers Council, which Council would conduct a hearing provided for under Section 10 and forward its report to the Commissioner. The said Section 10 provides as follows:
10. (1) For the purpose of conducting inquiries in accordance with Section 9 of this Law, the
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Council may take evidence and examine witnesses upon oath or affirmation (which oath or affirmation the Secretary is hereby empowered to administer) and may by summons as in Schedule 2 to this Law under the hand of the Secretary and on the direction of the Council, require off such persons as the Council may think fit, to appear in person before the Council of a time and place to be stated in such summons and to give evidence or produce any document or other things in the possession of such person that is relevant to the subject matter of the inquiry.
(2) The proceedings of the Council during an inquiry held under this Law shall be recorded and shall form part of the minutes of the meeting of such council.
(3) The Council shall, within two calendar months after the commencement of the inquiry, advise the Commissioner of the result and the name of the person found to be best qualified for official recognition as Clan Head or as the case may be, Village Head.
In this case, no report was made to the Traditional Rulers’ Council and afortiori no hearing was conducted. Instead the respondents wrote a petition dated 26th July, 2007 through their
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solicitors to the commissioner and followed it up with this action.
A point articulated by the respondents here was that the situation here was not within the contemplation of the law, i.e. Section 9 (1) above, as there was no dispute involving the selection of their Eteidung or Village Head and it was reasoned by the learned trial Judge that they were not expected to report to the Local Government Traditional Council headed by the 2nd appellant/defendant considering the role he was alleged to have played in muddling up the selection exercise.
The word ‘dispute’ envisages contention, discord, conflict, friction and antagonism. According to Black’s Law Dictionary, ‘dispute’ is a conflict or controversy’ especially one that has given rise to a particular law suit.
It is therefore a contradiction in terms for the respondents who filed the suit leading to this appeal to argue the non-existence of a dispute. If there was concord and harmony, no lawsuit would be filed.
?That two candidates emerged laying claims to valid selection as the Eteidung or Village Head of Nung Oku Ekanem village is prima facie evidence of the existence of a dispute.
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The Law envisages a report of such a dispute to a body and not an individual. That body is the Traditional Rulers Council of Onna Local Government Area. The Law goes further to stipulate the exact role to be played by this body and how the proceedings shall be conducted.
The respondents/plaintiffs failed to avail themselves of this step but chose to approach the Court directly by filing their writ initiating the action at the trial Court. I do not agree with the learned trial Judge that writing a petition to the commissioner amounts to substantial compliance with the provisions of Section 9 of the Traditional Rulers Law of Akwa Ibom State, 2000.
The Traditional Rulers Law of Akwa Ibom State was designed to ensure that the primary intervention in chieftaincy disputes in the State is conducted by the custodians of the tradition and culture of the people.
Their successful intervention would ordinarily assist in decongesting the regular Courts of needless litigations and where they are unable to successfully resolve a dispute, subsequent layers of adjudication would benefit from their input made at the primary stage.
?A similar situation was
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considered by the Supreme Court in EGUAMWENSE v. AMAGHIZEMWEN (supra) a judicial authority retied upon by the learned counsel for the appellants. In that case, KARIBI-WHYTE, JSC delivering the lead judgment lucidly enunciated the position of the law as follows:
It seems to me clear, that the intention of the legislature is to vest the jurisdiction for determining such disputes in the prescribed authority. In this case both the right and the remedy have been provided for under the statute. This does not affect the general supervisory jurisdiction of the prescribed authority as an inferior Tribunal, which the High Court can exercise over inferior Tribunals.
It is accepted as correct principle of law that where a statute creates a special right to which a special remedy is attached, resort cannot be had to any remedy other than that provided for in the statute creating the right. See EGUAMWENSE V. AMAGHIZEMWEN (supra) at 22-23.
Furthermore, the law has been well settled by the Supreme Court that a Court is competent if the following conditions are satisfied:
(i) It is properly constituted as regards numbers and qualifications of the members of
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the bench, and no member is disqualified for one reason or another;
(ii) The subject matter of the case is within its jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(iii) The case comes before the Court initiated by due process of the law and upon fulfillment of any condition precedent to the exercise of jurisdiction.
See GABRIEL MADUKOLU & ORS. VS. JOHNSON NKEMDILIM (supra); MARK vs. EKE (1997) 11 NWLR (pt. 527) 501, SLB CONSORTIUM LTD. VS. NIGERIAN NATIONAL PETROLEUM CORPORATION (2011) 9 NWLR (PT 317) and OBARO VS HASSAN (2013) 53 NSCQR 311.
The respondents/plaintiffs here failed to exhaust the procedure stipulated for chieftaincy disputes pursuant to the Traditional Rulers Law of Akwa Ibom State thereby rendering their action incompetent and depriving the Court of the requisite jurisdiction. See BAMISILE v. OSASUYI (2007) 10 NWLR (pt. 1042) 225 at 272 and MISCELLANEOUS OFFENCES TRIBUNAL V. OKOROAFOR (2001) 18 NWLR (PT 745) 295.
In the circumstances therefore, I resolve this issue in favour of the appellants/defendants.
?Having come to this conclusion, the
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remaining issues have become academic and could generate prejudicial comments if explored. They shall be jettisoned accordingly.
I therefore hold that this appeal succeeds and it is accordingly allowed.
The judgment of the learned trial Judge in Suit No HEK/22/2008 delivered on the 24th February 2014 is hereby set aside.
The said suit No HEK/22/2008 is hereby struck out for being incompetent.
Parties shall bear their respective costs.
Other Citations: (2016)LCN/8860(CA)
