Chief Etim Ofongekpe V. The Governor of Akwa Ibom State & Ors (2016)
LawGlobal-Hub Lead Judgment Report
The present appeal is against the ruling of the High Court of Akwa Ibom State, delivered on October 22, 2013 in Suit No. HU/S/34/2012. By ruling in question, the Court below, Coram Ekaele Obot J. refused the appellant’s application, seeking a prerogative order of certiorari, for want of sufficient particulars.
BACKGROUNG FACTS
In the Year 2006, the Appellant was selected by the Kingmakers of Utu Nsehe Village, in Etim EKPO LGA of Akwa Ibom State, to be the head of the said Village. On May 11, 2007, consequent upon his selection by the Kingmakers, the Appellant was conferred by the 1st Respondent with a certificate of recognition, as the Village Head of Utu Nsehe Village
?Whereupon, the Appellant proceeded to perform his assignment as the Village Head of the said Utu Nsehe village for five years. However, on September 7, 2012, the Appellant received a letter from the 1st Respondent purportedly withdrawing the earlier cognition accorded thereto as the Village Head. Thus, having been dissatisfied with the withdrawal of Certificate of
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recognition thereof, the Appellant filed an application in the Court below, seeking the following reliefs:
1. AN ORDER GRANTING LEAVE to the applicant to apply for order of judicial review of certiorari bringing the decision and order of the Government of Akwa Ibom State contained in the order dated 12th day of August, 2012 withdrawing appellant recognition as village Head of Utu Nhese Etim EKPO Local Government of Akwa Ibom State hereto attached in to this Court for the purpose of being quashed.
2. AND ANY OTHER ORDER (S) as this Honourable Court may deem fit to make in, the circumstance.
The application is predicated upon six grounds and 11 paragraphs affidavit, personally deposed to by the Appellant himself. Attached to the affidavit, are various Exhibits – A – G2, respectively.
On May 22, 2013, when the said application came up for hearing, the learned counsel adopted the submissions contained in the respective written addresses thereof, thus resulting in adjourning the application to July 10, 2013 for ruling. Eventually, the vexed ruling was delivered by the Court below on October 22, 2013, to the following conclusive effect:
“In
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conclusion, I agree forth the learned counsel for the 1st, 3rd Respondent that the prerogative order of the writ of certiorari does not avail the applicant in the instant application.
In this light I do not have any difficulty in requesting this application – This application is therefore refused for want of sufficient particulars.?
See pages 95 – 101, of the record.
The notice of appeal, filed on November 20, 2013, is contained at pages 102 – 105 of the record, duly transmitted on February 17, 2014. The Appellant’s brief of Argument was filed on February 26, 2014. That of the Respondent was filed on February 8, 2015, but deemed properly filed and served on January 15, 2016, respectively.
The Appellant’s brief spans a total of 9 pages. At page 2 thereof, four issues have been formulated for determination, viz:
“Issue one:
Whether the decision contained in the Ruling of Honourable Justice Ekaette Obot in suit No. HU/MISC/342/2012 was erroneous or contrary to law.
Issue Two:
Whether the Ruling was a miscarriage of justice.
Issue Three:
Whether the Ruling was against the weight of evidence.
Issue
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Four:
Whether the learned trial Judge erred in law when he failed to acknowledge the denial of fair hearing to the appellant who was not heard before the withdrawal of the certificate of recognition.”
The first issue was canvassed at pages 2 – 6 of the brief, to the effect that the decision contained in the vexed ruling was erroneous or contrary to the law. The reasons being that (i) paragraph 4 (ix) of the facts relied upon (page 24 of the Record), and paragraph 9 of the verifying affidavit (page 29 of the record) are to the effect that the Appellant was not invited by any of the Respondents to answer questions concerning any case instituted against him in respect of the office as village Head; (ii) he was not also invited to appear before the chieftaincy inspite community to answer any charge against him. See paragraphs 5, 6, and 7 of the Respondent 1st ? 3rd Respondents collected affidavit. That it is the duty of the Respondents to produce the proceedings of the committee before the Court. See Section 115 (3) of the Evidence Act, 2011; (iii) That the 4th Respondent did not file any collected affidavit to the appellant’s application. Thus,
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knowing that no committee was set up by the 4th Respondent; (iv) That by virtue of the provisions of Order 31 of the Traditional Rules Law Akwa Ibom State, the 1st Respondent is the only person that is vested with power to withdraw recognition’s that went accorded Traditional Rules in Akwa Ibom State; (v) That the order the 1st Respondent made was not administrative but quasi – Judicial See JUDICIAL COMMISSION AT C R C V. DR – (nors) ASARI YOUNGS (2003) 220 LRCN per Odili JSC (a) 17 paragraphs P – Z; (vi) That the order of certiorari could still issue against the letter of the 1st Respondent. See JSC CRS VS. YOUNG (supra) per Rhodes Vivour, JSC (a) 36 UEE STATE v. I LAWAL v. SENIOR MAGISTRATE II (2013) LRCN 1 page 280 at 233 Ojjo; (vii) That is not all cases that an affidavit for a can order of certiorari is expected to attach proceedings of the body that acted against his interest or right. See JSC CRS VS. YOUNG (supra).
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The issue No. 2 is argued at pages 6 of the said brief to the conclusive effect that the ruling was a miscarriage of justice for having approved the illegality contained in the order made by the 1st Respondent revoking the recognition
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accorded the Appellant. The Court is urged to resolve the issue 2 in favour of the appellant.
The issue No 3 is canvassed at pages 6 – 7 of the brief, to the effect that if the weight of the evidence, had been considered, the ruling would have been delivered in favour of the Appellant. The Court is urged to resolve the said issue in favor of the Appellant.
The issue four is argued at pages 7 of the brief, to the effect that it was quite obvious that the Appellant was not heard before his right was affected by the 1st Respondents order of revocation of recognition in question. See JSC CRS vs. YOUNG (supra) per Fabiyi, JSC at 34 FZ.
The Court is urged to resolve the issue No 4 in favour of the Appellant.
Conclusively, the Court is urged upon to hold that the vexed ruling of the Court below was wholly wrong and against the weight of evidence. The Court is equally urged to rely on Section 15 of the Court of Appeal Act and step into the shoes of the Court below and determine the unresolved issues based solely on the evidence, and grant the reliefs sought by the 1st Appellant.
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On the other hand, the 1st – 3rd Respondents’ brief spans
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on a total of 17 pages. Pages 4 – 5 of the brief, four issues have been formulated, viz.
1. Whether the decision contained in the ruling of the lower Court was erroneous and contrary to the law,
2. Whether the ruling was a miscarriage of justice,
3. Whether the ruling was against the weight of evidence.
At pages 5 to 10 of the said brief thereof, the Respondents have raised a preliminary objection urging on the Court to dismiss the appeal. The gist of the objection is that the Appellant failed to file an affidavit of service at the Court below, as required by Order 40 Rule 5 (5) of the Akwa Ibom State High Court (Civil Procedure) Rules, 2009.
It was submitted, that after obtaining the leave of Court to file this suit at the trial Court, the Appellant failed to file an affidavit of service before the application was entered for hearing, in compliance with Order 40 Rule 5 (5) of the Rules (supra). Further submitted, that the provisions of the said Order 40 Rule 5 (5) are sacrosanct, and must be obeyed. See ONYE MAIZE V. OJIAKO (2010) 4 NWLR (PT. 1185) 504 at 507; NWAOGWUGWU vs. PRESIDENT FRN (2007) 6 NWLR (pt. 1030) 237 at 244, et
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al.
It was contended, that the Appellant’s failure to fulfill the conditions to the exercise of the Court’s jurisdiction ab initio, robs this Court of the vires to adjudicate. See NGERE v. OKURUKET XIV (2014) 58 (pt. 1) NSC QR 113. AG LAGOS STATE VS. AG FEDERATION (2014) 58 (NO. 2) SCQR 270.
The Court is urged to consider the merit of this application.
The issue No 1 is canvassed at pages 10 – 12 of the brief, to the effect that the decision (ruling) of the Court below was not erroneous, or contrary to law. It was submitted, that throughout the entire records of the appeal, the Appellant had not exhibited the proceedings he wanted the Court to quash or nullify thus, the Appellant’s failure to exhibit the proceedings sought to be quashed, renders the suit incompetent. See MANUWA vs. NYC (2013) 2 NWLR (pt. 1337) 1 at 12 – JSC CRS vs. YOUNG (2013) NWLR (pt. 1364) 1 at 25 paragraphs F – G per Odili, JSC.
The Court is urged to so hold.
The issues Nos. 2 & 3 have been canvassed together at pages 12 – 15 of the brief, to the effect that the ruling of the Court below was neither a miscarriage of justice nor against the weight of evidence.
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The Court is urged to hold, that the Appellant?s failure to attach the proceedings is fundamental and very risky to his case.
The issue No 4 is canvassed at pages 15 – 16 of the brief, to the effect that there was no denial of fair hearing upon which the Court below failed to acknowledge that the Appellant’s failure to furnish the Court with the basic requirements for the application to succeed has amounted to an incurable defect.
On the whole, the Court is urged to dismiss the appeal.
DETERMINATION OF THE 1ST – 3RD RESPONDENTS’
PRELIMINARY OBJECTION
On March 31, 2014, the 1st – 3rd Respondents filed a notice of preliminary objection’ pursuant to Order 10 Rule 1 of the Court of Appeal Rules 2011. The said objection is predicated upon three grounds, viz:
1. The Appellant/Respondent failed to file an Affidavit of service at the trial Court as is required of him by Order 40 Rule 5 (5) of the Akwa Ibom State High Court (Civil procedure) Rules, 2009.
2. The substantive motion on notice for an order of certiorari to quash the order of the 1st Respondent given on 12th August, 2012 not having been initiated by due process of
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law that is, not fulfilling all the conditions precedent was incompetent ab initio.
3. The failure by the Appellant/Respondent to comply with the said order goes to the competency of this appeal and so deprives this Court of the necessary vines to entertain the matter.?
The argument regarding the objection is incorporated at pages 5 ? 10 of the 1st – 3rd Respondents’ brief. In the main it was submitted, that [although] the issue of non service of the affidavit of service has been raised for the first time, it touches on the jurisdiction of the Court. Thus, jurisdiction is a question of law and a necessary ingredient in all proceedings. See NGERE V. OKURUKET XIV (2014) 58 (pt. 1) NSCQR 113; AG LAGOS STATE VS. AG FEDERATION (2014) 58 NO. 2 NSCQR 270; OSIGBEMEH vs. EGBAGBE (2014) ALL FWLR (pt.744) 58 @ 62.
The Court is urged to consider the merits of the objection, as it?s apparent that it’s predicated on reason of law of jurisdiction.
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In response to the 1st – 3rd Respondents’ preliminary objection in question, the Appellants filed a reply brief on 21/10/15, pages 1 – 5 of the reply brief, specifically relate to the
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Respondents, objection.
In a nutshell, the Appellants submit that the decision in ONYMAIZU vs. OJIAKO (2010) 4 NWLR (pt. 1185) 504 @ 507, cannot bind this Court. The reason being that Order 37 Rule 5 (4) interpreted in ONYEMAIZU vs. OJIAKO (supra) is different from the provision in Order 40 Rule 5 (5) of the High Court (Civil Procedure) Rules, 2009.
Further submitted, that the appearance of the Respondents in Court was a sufficient proof of service of the processes thereon. See MADAHUNSI VS. KWARA INVESTMENT AND PROPERTY DEVELOPMENT COY LTD (2013) ALL FWLR (Pt. 659) 1198; CARNAUD METAL BOX (NIG) PLC VS. AGWELE (2011) AFWLR (pt. 557) 750.
It was contended, that the objection borders on procedural law is an irregularity. Thus, failure to comply with Order 5 (supra) cannot vitiate the proceedings. See ANSA vs. NTUK (2009) 9 NWLR (pt. 1147) 557.
It is trite, that the judicial review is a special procedure, whereby Court exercises supervisory jurisdiction over acts or omissions of Tribunals and public bodies in public law. See Order 40 Rule 5 (5) of the Akwa Ibom State High Court (Civil Procedure) Rules, 2009; NWAOGWUGWU v. PRESIDENT FRN
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(2007) 6 NWLR (pt 1030) 237 @ 244.
By virtue of Order 4 Rule 3 of the Akwa Ibom State High Court (Civil Procedure) Rules, 2009, no application for judicial review shall be filed unless the leave of the Court is sought and duly obtained in accordance with the Rules of Court. It is equally the law, that where leave is duly granted by the Court, the application for judicial review shall be made by motion (on notice) or by originating summons, which shall be served upon all persons directly affected before the hearing date. See Order 4 Rules 1, 3 & 5 (5) (supra).
In the instant case, it’s obvious from the Record, especially at pages 45, 46, 47 and 48, that the Appellant had filed the Affidavit of service regarding the motion on notice. Thus, ground 1 of the objection is lacking in merits, and it’s hereby overruled.
Thus, having overruled the 1st – 3rd Respondents preliminary objection proceeds to determine the appeal on the merits anon.
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Having amply considered the nature and circumstances surrounding the appeal vis-a-vis the records of appeal, I am inclined to adopt the four issues raised and canvassed by the Appellant in the brief
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thereof for the determination of the appeal, anon.
ISSUE NO. 1:
The first issue raises the question of whether or not the decision of the Court below was erroneous or contrary to law. The issue is distilled from ground 1 of the notice of appeal, which is predicated upon two particulars, viz:
PARTICULARS OF ERROR
a) The learned trial Judges misconception of the applicable law on point and failure to align her ruling with the decision in Adesina V. Ojo (supra) to the effect that the wrongful order of the Governor (the 1st Respondent) acting on the purported recommendation of the Chieftaincy Disputes committee would appropriately be brought by CERTORARI (sic) removing it to the High Court to be quashed resulted in amounted to a miscarriage of Justice against the Applicant/Appellant.
b) The learned trial Judge misconstrued the appropriate law when she opined that a declaratory relief commenced by writ was the Applicable law where as a removal of the order/decision to the High Court to be quashed by certiorari is the current locus classicus on the issue as reflected in Adesina V. Ojo (supra).”
In the instant case, it is obvious that the
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Appellant, by Exhibit E, was duly recognised as the village Head of Utu Nsekhe, Utu Clan, Etim Ekpo, on 11/05/07. The said Exhibit E is to the following effect:
?AKWA IBOM STATE OF NIGERIA TRADITIONAL RULERS EDICT 1990 (SECTION 176)
Certificate of recognition
THIS IS TO CERTIFY that pursuant to the provision of the Traditional Rulers Edit 1990, the Governor of Akwa Ibom State of Nigeria hereby accords official recognition to
Chief Etim Ofingekpe Udo
Village Head
Utu Nsekhe, Utu clan, Etim Ekpo
Local Government GIVEN at Uyo under my hand the 1th Day of May 2007.”
See page 19 of the Record.
However, by virtue of Exhibit F, the said recognition accorded the Appellant was withdrawn on 12/08/12 by the Governor of Akwa Ibom State.
The said Exhibit F is copiously reproduced to the following effect:
“TRADITIONAL RULES LAW CAP. 134
LAWS OF AKWA IBOM STATE TRADITIONAL RULER (WITHDRAWAL OF RECOGNITION FROM CHIEF ETIM OFFONG EKPE)
In exercise of the powers conferred on me by Section 31 of the Traditional Rulers Law Cap, 134 Laws of the Akwa Ibom State and the Recommendation of the Chieftaincy Disputes Committee of the
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State Council of Chiefs declaring in the main that Chief Etim Offong Ekpe was not validly selected as the Village Head of Uti Nsekhe and of all other powers enabling me in that behalf, I, CHIEF (DR.) GODSWILL OBOT AKPABIO (CON), the Governor of Akwa Ibom State, hereby make the following:
ORDER:
1. The recognition granted to Chief Etim Offong Ekpe as the Village Head of Utu Nsekhe, Utu Clan, Etim Ekpo Local Government Area is hereby withdrawn.
2. This ORDER may be cited as the Traditional Rulers (withdrawal of Recognition from Chief Etim Offong Ekpe) order and shall come into force on this… Day… 2012, MADE under my hand at Uyo, this…. Day of… 2012 CHIEF (DR.) GODSWILL OBOT AKPABIO THE GOVERNOR OF AKWA IBOM STATE?
See page 20 of the Record.
It is equally obvious from Exhibit F, that the exercising of the 1st Respondent’s power to withdraw the recognition given to the Appellant as the village Head of Utu Nsekhe was pursuant to:
“Section 31 of the Traditional Rulers Law Cap, 134 Laws of Akwa Ibom State and the Recommendation of the Chieftaincy Disputes Committee of the state council of chiefs declaring the main that
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chief Etim Offiong Ekpe was not validly selected as the village Head of Utu Nsekhe?”
Consequent upon the receipt of Exhibit F, the Appellant?s counsel Barrister/Dr. E, J. Uko wrote a letter dated 17/09/12, to the Chieftaincy Disputes Committee, vide the 3rd and 4th Respondents, to the following effect:
“REQUEST FOR THE PROCEEDINGS THAT GAVE RISE TO THE WITHDRAWAL OF THE CERTIFICATE OF RECOGNITION OF CHIEF ETIM OFONGEKPE UDO AND CHIEF JAMES AKPAN UDOFIA
We fervently believe that no proceedings took place, else our clients would have been given due notice and properly invited. If you however operated a kangaroo/undemocratic hearing process where the rule of law matters not kindly send to me by mail such proceedings.?
It is evident from the records, that the Appellant’s counsel wrote another letter to the Respondents, dated 07/10/12, to the following effect:
“BARR./DR EMMANUEL J. UKO
(B.sc. 78; MPH-Yale’ 80; LB -’90; BL. ’91; LLM ’96/LLD-?06 South Africa) ?
The Secretary – Chieftaincy Dispute committee C/o State Council of Chiefs I
C/o Ministry of Local Governments and Chieftaincy Affairs
Uyo –
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Akwa Ibom State.
Sir,
REMINDER
On 17? September I mailed you on a letter requesting for proceedings as indicated in the attached copy of the letter mailed to you.
This reminder serves as an information that we are desirous to be served with a copy of any such purported proceedings
See page 82 of the Record.
In the course of the determination of the substantive application, the Court below identified the main issue for determination, thus:
“Whether a writ of certiorari can be issued to quash the order of the 1st Respondent withdrawing the certificate of recognition of the applicant as village Head of Utu Nsekhe village, in Etim Ekpo Local Government area.?
See page 99 of the Record.
The decision of the Court below is to the conclusive effect, thus:
“To grant the orders sought by the applicant would amount to chasing shadows and leaving the substance. The foundation of the order of the Governor must necessarily be dealt with before I can be armed sufficiently to deal with the order of the 1st Respondent because the said order as earlier stated is predicated on the decision of
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the aforementioned committee.
Looking through the processes filed by the applicant, he has neither asked for the decision of the committee to be brought in to the Court for the purpose of reviewing its legality nor-exhibited the Certified True copy of the said decision to enable the Court review the said decision in conjunction with the order of the 1st Respondent.?
In my considered view, the conclusive finding by the Court below is cogent, and duly supported by the evidence on record and the trite fundamental principles of law.
It is, evident, that throughout the records of appeal and by the Appellants own admission, the Appellant had not exhibited the proceedings of the Chieftaincy Disputes Committee of the state council of Chiefs.
Undoubtedly, the 1st Respondent’s order in question is predicated upon the proceedings vis-a-vis the recommendations of the Chieftaincy Disputes Committee which had not been made available to the Court below.
Yet, the rule is well settled, that failure to attach a proceeding sought to be quashed, vide certiorari procedure, renders the application incompetent, and liable to be struck out. See
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MANUWA vs. NYC (2013) 2 NWLR (pt. 1331) 1 @ 12.
The Appellant’s submission denying’ the existence of the Chieftaincy Disputes Committee, or ever appearing before same, does not in any way enure or exonerate him. He ought to have applied for a certified true copy of the said proceedings, in accordance with the provisions of Section 104 of the Evidence Act, 2011.
Faced with a similar scenario, this Court once held in MANUWA v. NJC (2013) 2 NWLR (pt. 1337) 1 @ 39 line D thus:
“Finally, it is my view that the Appellant was not sure about the existence of any proceedings to be quashed by means of certiorari, it was not appropriate to have approached the Court for judicial review. The failure to attach any such proceedings complicated the matter. (This) was a serious feature in the suit which robbed the lower Court of its jurisdiction.”
Not surprisingly, the Court below made an aptly similar observation to the effect, that the Appellant has options provided under the Rules of Court thereof, which he could have employed to challenge the order of the 1st Respondent directly:
?In view of his averment in his affidavit (that) he had no
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access to the said decision of the committee of the 4th Respondent.?
See page 101 of the Records of appeal.
In the circumstance, the issue No. 1 ought to be, and it’s hereby resolved against the Appellant.
ISSUE NO. 2
The second issue raises the question of whether or not the vexed ruling was a miscarriage of justice. It is distilled from ground 4 of the Notice of appeal.
Invariably, the term miscarriage denotes a failure of justice. Miscarriage of justice occurs when the Court fails, neglects or refuses to follow due process of the rules thereof, and thereby arrives at a decision which is prejucial to the right of the party. See OGUNTAYO vs. ADELAJA (2009) 39 NSCQR 640 @ 644 – 645; ONAGORUWA vs. THE STATE (1993) 7 NWLR (PT. 303) 49.
In the instant case, the requirement of the law under Order 4 Rule 9 (2) of the High Court (Civil Procedure) Rules, 2009, is that:
“(2) Where the reliefs sought is (sic) or includes an order of certiorari to remove any proceedings for the purpose of quashing them, the Applicant may not question the validity of any order, warrant, commitment, conviction, inquisition or records unless before
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the hearing of the motion or summons he has filed a copy thereof verified by affidavit or accounts for his failure to do so to the satisfaction of the judge hearing the motion or summons.?
The Appellant has woefully failed to comply with the mandatory provisions of the above Order 40 Rule 9 (2) of the High Court Rules (supra). I am, therefore, of the far-reachingly considered view, that the Court below was absolutely right, when it came to the most inevitable conclusion in the vexed ruling that:
Looking through the processes filed by the Applicant, he has neither asked for the decision of the said committee to be brought in to the Court for the purpose of reviewing its legality nor exhibited the certified true copy of the said decision to enable the Court review the said decision in conjunction with the order of the 1st Respondent.
In the circumstances, the second issue is equally hereby resolved against the Appellant.
ISSUE No. 3
The third issue raises the very vexed question of whether or not the Ruling of the Court below was against the weight of evidence. It is distilled from ground 5 of the notice of appeal.
?There
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is no gainsaying the fact, that having resolved the issue No. 2 against the Appellant, the issue No. 3 must equally be resolved against him.
It is obvious from the record, that having failed to attach the proceedings of the Chieftaincy Disputes Committee, the Appellant’s application is inevitably rendered grossly incompetent. What’s more, the Appellant was not even so sure about the existence of the committee’s proceedings, upon which the vexed order of the 1st Respondent was predicated. Thus, the certiorari procedure he has unwittingly embarked upon was most inappropriate. As aptly held by the Court below:
The Applicant has other options provided under the Rules of this Court which he can employ to challenge the order of the 1st Respondent directly in view of his averment in his Affidavit (that) he had no access to the said decision of the committee of the 4th Respondent.
In the circumstances, the third issue is equally hereby resolved against the Appellant.
ISSUE NO. 4
The fourth issue raises the question of whether or not the Court below erred in law, when it failed to acknowledge the denial of fair hearing to the Appellant who
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was not heard before the withdrawal of the certificate of recognition thereof. The issue is distilled from ground 7 of the notice of appeal. In paragraph ix of the statement thereof, contained at pages 25 ? 27 of the Record, the Appellant averred that –
ix. The Applicant has never been invited by the Chieftaincy Disputes Committee of the state council of chiefs or any similar body on the validity of his selection as the village head of Utu Nsekhe and is not aware of any dispute or offence having served for five years as village head.
See page 27 of the record.
Contrariwise, the 3rd Respondent averred in paragraphs 7 and 9 of the counter affidavit thereof, that the Applicant’s averment to the effect that he had never been invited to appear before the said chieftaincy Disputes Committee, was false.
Thus, the Court below was absolutely right in its finding, to the effect that the Appellant wrongly approached it for the order of certiorari, and accordingly struck out the action for want of sufficient particulars.
In the circumstance, the fourth issue is equally hereby resolved against the Appellant.
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Hence, having effectively
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resolved all the four issues against the Appellant, the appeal is in every respect deemed lacking in merits. Consequently, the appeal is hereby dismissed by me, for lacking in merits. The ruling of the Akwa Ibom State High Court, delivered by the Hon. Justice Ekaette Obot on October 22, 2013, is hereby affirmed.
Parties shall bear their respective costs of litigation.
Other Citations: (2016)LCN/8772(CA)
