Chief J.l.e. Duke Vs Governor Of Cross River State & Ors (2013)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, JSC

The appeal is against the Judgment of the Court of Appeal, Calabar Division in appeal No.CAC/142/07 delivered on 3rd July, 2008 in which it dismissed the appeal of the Appellant against the judgment of the High Court of Cross river State at Calabar given in suit No. HC/2/2006 on 7th May, 2007. The facts are that on 6th January 2006, the Appellant as plaintiff instituted an action in the Cross River State High Court at Calabar against the Respondents as Defendants, claiming the following reliefs: ‘(i). A DECLARATION that the letter reference number DDCA/CRS/TC/10/S. 11/438 dated 11th October, 2005 by which the Plaintiff’s recognition as both village Head of Ikot Edem Odo village and clan Head of Ikot Ede Odo village and Clan Head of Edem Odo Clan was purportedly withdrawn is invalid and unlawful. (ii). A DECLARATION that the purported de-recognition of the plaintiff as the village Head of Ikot Edem Odo village and Clan Head of Edem Odo Clan is a violation of the plaintiff’s fundamental right to fair hearing. (iii). N1 (one million naira) as general damages to the plaintiff for the psychological trauma, mental anguish and loss of reputation by him as a result of the letter of 11.10.2005 and the consequent adverse press report on him that followed.’ The Defendants in response to the plaintiff’s claims filed their joint statement of Defence and in turn, the plaintiff filed his Reply. Pleadings were exchanged between the parties in the suit. After overruling on the Defendants preliminary objection, the High Court proceeded with the trial. At the conclusion PAGE| 3 of the hearing and address of the Counsel, the learned trial Judge dismissed the claims of the plaintiff. The plaintiff being dissatisfied with the decision of the High Court appealed to the Court of Appeal Calabar which also dismissed the Appeal. The Appellant, herein being further aggrieved by the decision of the Court below has now appealed to this court. On 30/9/2010 this court having granted the extension of time to seek leave to appeal and appeal against the decision of the court below, the Appellant filed six Grounds of Notice of Appeal. The Grounds shun of their particulars read as follows; GROUND 1 The learned Justices of the Court of Appeal erred in law when they held as follows: “It is sufficient to note that section 30 of the Traditional Rulers law and indeed the whole of provisions of the law did not require the Governor to give reasons before exercising his discretion under section 30 (1) (a) – (d).” GROUND 2 The learned Justices of the Court of Appeal erred in law when they held that: ‘At this juncture I must say that Appellants attitude amounted to sheer arrogance and pride. To say that a meeting conveyed by the 3rd Respondent for mediation between the Appellant and his subjects, which included his chiefs and elders on the office of the 3rd Respondent rowdy and as such he skipped attending, this is to say the least disappointing and unfortunate pride, they say, PAGE| 4 goes before a fall.’ GROUND 3 The learned Justices of the Court of Appeal erred in law when they held that: ‘From the facts, evidence and exhibits carefully chronicled above, the conclusion is inescapable that the Appellant was given a very fair hearing before he was de-recognised vide Exhibit 3’. GROUND 4 The learned Justices of the Court of Appeal erred in law when they held that: ‘It is important to state here that it is the people in the village and clan v\/ho can remove their Heads pursuant to the Traditional Rulers Law and not the Government………’ The learned Justices of the Court of Appeal erred in law when they held that: ‘It is clear that the implication of the said section 15 is that it is necessary for a Clan or Village Head to set up organs in order to effectively pilot the affairs of his domain’. GROUND 6 The learned Justices of the Court of Appeal erred in law when they held that: ‘It is significant that up till the 11/10/05 when the Appellant was de-recognised, the 2nd Respondent did not accord any recognition to the new Village Head of Ikot Edem Odo or the new Clan Head of Edem Odo Clan under section 13 of the traditional Rulers Law CAP. T4, Law of Cross River State, 2004. The situation PAGE| 5 would have been radically different if the 2nd Respondent had accorded recognition to the acting Village Head and acting Clan Head under section 13 of the Law’ In accordance with Order 6 Rules 1 and 2 of the Supreme Court Rules, briefs were filed and exchanged by the parties. The Appellants brief of argument was filed on 16th of October, 2009. The Respondents joint brief was deemed filed on 17th March, 2010. The Appellant formulated the following 3 issues for determination: ‘1. Whether the Appellants de-recognition was in accordance with section 30 (1) of Cross River State Traditional Law Cap T.4, 2004 (Grounds 1, 2, 3, and 5). 2. Whether Cross River State Traditional Rulers Law Cap T4 2004 provides for the removal of the Appellant by the villagers (Ground 4) 3. Whether it was proper for the learned Justices of the Court of Appeal to hold that the election of a new Clan Head for Edem Odo Clan and a new village Head for Ikot Edem Odo was lawful even after the official recognition of the Appellant in these positions was still subsisting (Gound 6).’ The Respondents formulated two issues for determination as follows: ‘(1) whether the de-recognition of the Appellant by the 2nd Respondent was not in accordance with section 30(1) (d) of the Traditional Rulers Law Cap T4 Laws of Cross River State, 2004. (2) whether the Learned Justices of the Court of Appeal were right in holding that the withdrawal of the Certificate of recognition of the PAGE| 6 Appellant was proper notwithstanding that the withdrawal was made after the selection of acting village Head and acting Clan Head respectively by chiefs and people of Ikot Edem Odo village and Edem Odo Clan.’ I have carefully examined the issues formulated by the parties in this appeal. I am of the firm view that the two issues identified by the Respondents shall adequately resolve the appeal. Issue 1 of the Appellant is Respondents issue 1 as well. Respondents issue 2 hereof is all-embracing. It covers Appellants issues 2 and 3. On the 5 November, 2012 when this appeal was heard, learned counsel for the Appellant, Charles .E. Duke, Esq. adopted the Appellants brief and without further amplification, urged this court to allow the appeal and set aside the decision of the court below. Learned Counsel for the Respondents C.I. Okem Esq., on the other hand having adopted the Respondents brief, without further amplification urged this court to dismiss the appeal and to affirm the judgment of the court below. ISSUE NO.l On this issue the Appellants learned Counsel has submitted that the de-recognition of the Appellant as the village Head of Ikot Edem and Clan Head of Edem Odo, Akpabuyo Local Government of Cross River State, was not in accordance with section 30 (1) of the Cross River State Traditional Rulers Law Cap T4 2004. He cited in reliance the case of the QUEEN: Ex parte Adebo v. The Governor -in -Council (1962) 2 All N.L.R. 917. It is contended that section 22 (1) of the Western Nigeria Chief Law Cap 19 of 1959 was in pari materia with section 30 (1) of the said Cross River State Traditional Rulers Law Cap T4 2004. That the Governor-in -Council in the Ex Parte Adebos case, has the power and:- ‘May Suspend or depose any chief, whether appointed before or after commencement of this Law, if he is satisfied that such suspension or deposition PAGE| 7 is required according to customary law or is necessary in the interest of peace or Order or good Government’. It is submitted that the court below failed to observe the principles enunciated in that case by Charles J. which was, particularly that when the Chief is to be removed or deposed he should be informed of the conduct which is alleged against him. The same is required if a deposition is alleged as being necessary for peace, order and good government, the way or ways in which the chief has offended against the interest of peace order and good government should be specified. It was further contended by the learned counsel for the Appellant that the reliance on the case of AKUNEZIRI v. OKENWA (2001) PWLR (pt.35) 604 in determining the appeal by the lower court was wrong and in appropriate. Referring to sections 9 and 14 of the Chieftaincy law of Imo State No.22 of 1978 cited in that case, learned counsel submitted that the sections are not in pari materia with the law being considered in the case at hand for the obvious reason that the intention of the framers in the former law was to give the Military Administrator unfettered discretion in Section 9 (b) and where appropriate not to do so in section 14 of the said law. In the light of the above learned counsel for the Appellant submitted that the assertion of the learned justices of the court below that the state Governor, did not require him to give reasons before exercising his discretion under section 30(1) (a)-(d) of the Traditional Rulers Law was at variance with the provision of section 30(1) of that Law. Appellant has therefore contended that if fair hearing means formally notifying the person involved of the allegation against him, he was not accorded any fair hearing as he was not given the opportunity to confront witnesses who testified against him and also given him ample opportunity to defend himself and to call witnesses to testify for him. That the Governor was hasty to act when it was not done to forestall any probable break down of law and order. It is in the light of this circumstance, the Appellant, relying on the cases of LORD SELBORNE SPACKMAN v. PLUMSTED DISTRICT BOARD OF WORKS (1885) 10 AC at 240 FIRST BANK OF PAGE| 8 NIGERIA PLC v. SONGO NUGA (2007) 3 NWLR (pt.1021) 230 – 248, and ADIGUN v. ATTORNEY – GENERAL OYO STATE(1987) 1NS.C.C. 346 at 380 stressed further that he was not accorded full opportunity to be heard before he was removed by the 2nd Respondents using the 3rd and 5th Respondents as his hatchet men. On this issue the Respondents learned counsel, relying on the provisions of section 30(l)(a) and (d) of the Traditional Law of Cross River, submitted that the subsection has spelt out in clear terms the circumstances in which the state Governor could exercise the power of withdrawal of official recognition accorded a village or Clan Head. That the use of the ‘OR’ in subsection (1) paragraphs (a) – (d) is indicative of the fact that the conditions stipulated therein need not be present at the same time before the Governor can exercise the power vested in him; that occurrence of one or more of the grounds is sufficient for a valid exercise of the discretion. Reliance was placed on the Supreme Courts interpretation of sections 9 and14 of the Imo State Chieftaincy Law No. 22 of 1978 in AKUNEZIRI v. OKENWA FWLR (pt. 35) 604 at 634. The section is said to be in pari materia with section 30 (1) of the Traditional Rulers Law Cap T.4 (supra). Learned Counsel for the Respondent submitted that the learned trial Judge and the Justices of the Court below found as a fact that the Appellant was de – recognized and his certificate withdrawn to forestall a breakdown of law and order in Ikot Edem Odo which was imminent. That this concurrent finding of the two courts cannot be interfered with unless they are shown to be perverse. He relied on the case of OGUNTAYO v. ADELAJA (2609) 39 NSC of 639 at 665. Justifying the Appellants withdrawal of recognition, learned counsel for the Respondents submitted that the prevailing events revealed in Exhibits “7”,“8” and “15” were ominous and frightening and in the circumstance in the interest of peace and good government the Appellants de-recognition became necessary. That the exercise of discretion vested in the Governor by section 30(1) of the Law is not dependent on the advice, judgment or opinion of any person but that of the Governor and he only. PAGE| 9 On the issue whether the Appellant was given fair hearing, the Respondents submitted that the 2nd Respondent before exercning his discretion to de-recognise the Appellant, he was afforded ample opportunity to address severl complaint made against him by the village heads and people of Ikot Edem Odo village and the clan. The Respondents issue No. 1 is: ‘Whether the de-recognition of the Appellant by the 2nd Respondent was not in accordance with section 30(1) (d) of the Traditional Rulers Low Cap T.4 Laws of Cross River State 2004′. I shall start with the examination and due consideration of the provisions of the said Traditional Rulers LEW Cap T.4 Law f Cross river State, 2004 Section 30(1) of this Law provides that: “The Governor may withdraw effectual recognition from a Clan Head or a village Head accorded official recognition under this Law or any other written Law, if the Governor is of the opinion that: (a) The Clan Head or village Head has not adequately performed the functions conferred upon him by subsection(1) and (2) of section 15 of this Law and or by or under any other written law in force in the state or by reason of infirmity of body or mind the Clan Head or Village Head is incapable of adequately performing those functions; or (b) the withdrawal of official recognition is required by Local Customary Law; or (c) the Clan Head or the Village Head has been guilty of abuse of office; or PAGE| 10 (d) the withdrawal of recognition is necessary In Interest of peace order and good government.’ The wordings of the provisions of section 30(1) of the Traditional Rulers Law Cap 14 Laws of Cross River State 2004, are very clear and do not admit of any ambiguity and therefore should be accorded their ordinary or literal meaning. In the case at hand, the 2nd Respondent, that is the State Governor acted pursuant to section 30(1) (d) of the law in withdrawing the Appellant’s certificate 0f recognition. Recourse to paragraph 6(a)-(e) of the Respondents statement of Defence (at page 36 of record) and Exhibits ‘7”,’8′,’10’,’13’ and “15” at pages 294, 295 and 301) of the records may help elucidate on the matter. The Respondents strongly asserted as follows; ‘(a) The recognition of a traditional ruler by the Governor of Cross River State is a privilege and not a right; (b) For various reasons, the Plaintiff had come to have a very bad relationship with his Paramount Ruler and with individuals in his clan, who had all lost respect and regard for him, resulting in his complete inability to administer his clan; (C). This sad situation had defied the mediatory efforts of both the Ministry of Justice and the Department of Chieftaincy Affairs due primarily to the Plaintiffs rigidity, distance and aloofness from his people arising from his refusal to live amongst them; (d) The Governor of Cross River State by reason of sub-paragraphs (b) and (c) above, had come to realise that the Plaintiff had lost the confidence of his people of Ikot Edem Odo and his grip on its affairs, which state of affairs had by October 2005 reached a point where a breakdown of law and order was, as for as the Governor was concerned, imminent in Ikot Edem Odo; (e) (f) PAGE| 11 (g) (h) Consequently, it was necessary for the Governor to take decisive action to forestall the probable breakdown of law and order, and he did take this action by withdrawing his recognition of the Plaintiff as a village head and clan head, in the exercise of his executive authority conferred by the Traditional Rulers Law, Cap. T4, 2004. Hence the events revealed in the said Exhibits ‘7’ ‘8’ ’10’ and ’15’ were so ominous and frightening and these necessitated the withdrawal of recognition accorded to the Appellant by the 2nd Respondent in the interest of peace, order and good government. The power of the Governor under section 30(1) (d) aforesaid is quite absolute and his executive authority, not being reckless or unreasonable cannot be questioned. The Law requires that the Governor should only consider the need for the maintenance of peace order and good governance. The word ‘opinion’ used in the provisions is the appraisal of the situation formed in the mind of the Governor. His strong and positive impression of what is good and necessary to maintain law and order in the governance of the state. The exercise of the discretion vested in the Governor by that section of the law is not dependent on the advice, judgment or opinion of the Appellant or any person for that matter but that of the Governor himself. It is sufficient if the Governor is satisfied that it is necessary to withdraw the recognition of a village or Clan Head in the interest of peace order and good governance of the community or indeed the state in general. The Appellants contention that the case of AKUNEZIRI v. OKENWA (supra) is inapplicable to the instant case is misconceived. Reproduced section 30 (1) (a) – (d) of the Traditional Rulers Law (supra) above provides for four distinct and separate circumstances under which the Governor can exercise his discretion to withdraw official recognition and the process of ‘de-recognition’ is not predicted, necessarily, on the misconduct of the village Head or Clan Head, as the Appellant in this case. In AKUNEZIRIs case (supra) this court interpreted sections 9 and 14 of Imo State Chieftaincy Law No.22 of 1978 which are in pari materia with PAGE| 12 section 30(1) (d) of the Traditional Rulers Law (supra) thus: ‘The resume of these two provisions is first that the Edict by the provisions of section 9 vest on the Military Administrator the power to suspend or withdraw recognition of a recognized chief once he is satisfied that is necessary so to do……….. in the interest of peace, order and good government……….. It is manifest that section 9, as submitted by chief Williams confers on the Governor to suspend or withdraw recognition of a chief having regard to being satisfied of the conditions either under 9 (a) or 9 (b) while section 14 confers similar power on the Governor operating through his commissioner after fulfilling the conditions in sections 14(1) and 14(2)’ Contributing further in that case (supra) at page 641 AYOLA JSC, posited thus: “It may well be noted that the power of withdrawing recognition from a chief contained in section 9 is wider that contained in section 14(1). A Chief does not have to misconduct himself for the Governor to satisfy that withdrawal of his recognition as a chief is necessary in the interest of peace, order and good government pursuant to section 9(b).’ As I have said, from the above passages, the basis of the discretion to de-recognise the Appellant in Exhibit 3 is clearly stated in paragraph 6(a) – (d) of the statement of Defence reproduced above. It is sufficient if the Governor is satisfied that it is necessary to withdraw the recognition of the Village or Clan Head in the interest of peace order and good government. It now remains for me to consider whether the Appellant was given a fair hearing before issuance of Exhibit 3 by the 2nd Respondent By the term ‘fair hearing” within the context of section 36(1) of the 1999 Constitution, is that a trial ought to be conducted in accordance with all the legal norms designed to ensure that justice is done at all cost to all parties. The principle of fair hearing is that both sides must be given an opportunity to present their respective cases. It implies that each side has the right to know what case is being made against it and be given ample opportunity to react or respond thereto. PAGE| 13 Fair hearing does not necessarily mean a hearing that involves oral representation. However, a hearing is fair if the parties are given opportunity to state their case even in writing. In the instant case, the Appellant was served with the numerous petitions written against him, particularly in Exhibits 7, 8, and 19 and he in turn responded in writing to the petitions in Exhibits 7A, 8A, and 10A. Appellant was heard before a decision was taken against him. He was given opportunity to state his case in writing. Further, before the 2nd Respondent exercised his discretion, apart from affording the Appellant ample opportunity to address the several complaints made against him by the village heads and people of Ikot Edem Odo village, he attended several mediation meetings in the office of the 3rd Respondent. In his testimony at the trial court, he stated at page 294 lines 6-8 of the record thus: ‘I attended mediation meetings at the 3rd Defendants office. The meetings were rowdy because the kind of persons in attendance so informed 3rd Defendant, I will no longer attend” The Appellant also admitted attending another meeting in the office of the 5th Respondent. Yet another meeting was held in the office of the 4th Respondent with all the Village Heads in attendance (See page 294 and 295 of the Records. It is quite evident that the Respondents took several steps to settle the crises that rocked the village headship of Ikot Edem Odo community. PW 2 under cross-examination at page 298 lines 8-12 of the records stated as follows: ‘There were problems between plaintiff and members of our village/community. Defendants took steps to settle the crises. We went to Citizens Right Department in the Ministry of Justice. I accompanied plaintiff there. The Ministry of Justice PAGE| 14 did not settle the matter. We were there about 5 to 6 times.’ From the foregoing it is very clear that several meetings were convened at the instance of the Respondents to bring about peace with sole objective of preventing imminent breakdown of order, peace and good government and mutual relationship hither to enjoyed by the Appellant and his subjects. Therefore the claim of the Appellant that he was not given fair hearing before issuance of Exhibit 3 by the 2nd Respondent cannot hold water. Both the trial Court and the Court of Appeal made specific findings to the effect that the Appellant was given a fair hearing. At page 355-356 of the record, the learned trial judge held inter alia, thus: ‘I need to remind us that what I am doing at this stage is to determine whether or not the plaintiff was given a fair hearing by the defendants before being derecognized and issued with Exhibit 3 and not whether the decision reached after the hearing was correct or not. There is no doubt and there can be doubt from the chronicle above that the plaintiff was given more than his fair share of fair hearing before he was derecognized as Village of Ikot Edem Odo Village and Clan Head of Edem Odo Clan and I so find and hold.’ The Court of Appeal in similar vein at page 433 of the record also stated thus: ‘From the facts, evidence and exhibits carefully chronicled above the conclusion is inescapable that the Appellant was given a very fair hearing before he was de-recongnised vide Exhibits 3.” It is evident that the foregoing were the concurrent findings of the two lower courts. These are borne out of facts and are not erroneous or perverse and therefore cannot be faulted. See ONWUDIWE v. FRN (2006) 26 NSCQR 257 at 286 -287. The contention of the Appellant at pages 20-21 of his brief that section 15 of the PAGE| 15 Traditional Rulers Law (supra) did not make provision for a Clan Council ‘that will effectively help to manage the affairs of his domain is not correct. I agree with the learned counsel for the Respondent that section 15 of the law lay down copiously the functions and duties of the Clan Heads in the state including the Appellant. The section provides for the effective management of the affairs of the village headed by a particular village Head. This affords him the opportunity to effectively interact with his subjects. It is in view of the foregoing that I resolve this issue in favour of the Respondent. ISSUE NO.2 This is the Appellants issue No.3 distilled from Ground 6 of the Appellants Notice and Grounds of Appeal. The Appellant has argued that the selection of an Acting Head and Clan Head of Ikot Edem Odo Village and Edem Odo Clan before issuance of Exhibit 3 to the appellant was exercise in violation of the Traditional Rulers Law Cap. T4 laws of Cross River State 2004. The Respondents learned counsel argument is to the contrary position held by the Appellant herein. By section 6 of the said Law the appointment or selection of a village or Clan Head is a matter which is entirely within the competence of the Village Community or Clan concerned. The procedure is that after the appointment or selection and ratification by the Traditional Rulers Council of the affected Local Government Area, the village Head or Clan Head is formally introduced and presented to the Governor who in turn accords him official recognition. The Respondents explanation on this procedure is to my mind, more reasonable; in the circumstance of this case. The recognition so accorded a village or clan head is not in perpetuity. It is explained that the life span or time frame or period of the recognition so accorded, is dependent on the conduct, good will mutual respect and the kind of relationship which the holder of the office in the village or clan head enjoys with his subjects, who are not prohibited by law to lodge complaint(s) against him as in the case at hand. If that is the practice I do not see anything wrong in what the chiefs and their subjects did in selecting an Acting Village and Clan Head when they had lost confidence in the Village Head in the person of the Appellant. In the Appellants community there had been wild demonstration of disenchantment, mutual mistrust and widening gap in the relationship of the Appellant and his PAGE| 16 people. Hence his people showed their distrust and followed their several petitions by carrying placards on the state Television etc. Hence, they breathed a sigh of relief when an Acting Village and Clan Head was appointed for them. This at least gave them a long awaited selhoutte to douse the ominous situation in the community. This resulted in the tension of Exhibit ‘3’, de-recognizing the Appellant and appointing an Aching Village Head and Clan Head. The selection of an Acting village Head of Ikot Edem Odo and Clan Head by Edem Odo before the issuance of Exhibit ‘3’ to the Appellant was not exercise in violation of the Traditional Rulers Law and capable of nullifying the withdrawal of the Appellants certificate of Recognition of the Head of his community. In the light of the foregoing, on the whole, the appeal is unmeritorious and is accordingly dismissed in its entirety. I make no order as to costs.

SC. 292/2008