Chief Thomas Ames Nteile & Ors V. Hon. Harry John Etukuro & Ors (2016)
LawGlobal-Hub Lead Judgment Report
PAUL OBI ELECHI, J.C.A.
This is an appeal against the final Judgment of the High Court of Akwa Ibom State holden at Mkpat Enin per Justice Edem Akpan which said Judgment was delivered on the 28/3/2013 dismissing the claims and reliefs sought by the Appellants.
Being dissatisfied, the Appellants have brought this appeal challenging the decision of the Lower Court.
?The Appellants on the 14/9/2011 instituted this suit (AME/16/2011) against the Respondents at the High Court of Akwa Ibom State. Their claims are:
(1) For a declaration that the 1st Appellant is the duly selected village head of Elile village in Eastern Obolo Local Government Area, Akwa Ibom State.
(2) A declaration that the 1st Respondent was never selected and duly presented to the 2nd Respondent as the village head of Elile village.
(3) A declaration that the issuance of certificate of recognition to the 1st Respondent as the village head of Elile village by the 4th Respondent is void and of no effect.
(4) An Order for perpetual injunction restraining the 1st Respondent from holding out or parading himself as
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the village head of Elile village and
(5) An Order compelling the 4th Respondent to issue a certificate of recognition to the 1st Appellant as the duly selected village head of Elile.
At the end of trial, the Learned trial Judge found as a fact and in compliance with the Custom-Tradition and the Law that the 1st Respondent was duly selected as the village head of Elile village, Eastern Obolo Local Government Area in 1995 during the burial ceremony of late Peter Aquan. Consequently, the Appellant’s case was dismissed with N50,000.00 cost in favour of the 1st Respondent.
From the 4 grounds of Appeal, the Appellants distilled two issues for determination viz:
(1) Whether the Learned trial Judge was right in finding and holding that the Appellants Reply to the 1st Respondent’s statement of claim was inchoate and incompetent and proceeded to expunge it for want of written statement on Oath accompanying it.
(2) Whether the Learned trial Judge was right when he held that it appears to him that the 1st Respondent was selected in accordance with the Law and custom as the village head of Elile.
In arguing issue No. 1 above, it is Learned
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Appellants’ submission that the Learned trial Judge gave an erroneous construction and/or interpretation of Order 18 Rule 1 of the Akwa Ibom State High Court (Civil Procedure) Rules 2009 which lured him to refuse to make use of Exhibit 3 in the suit which accompanied the Appellant’s Reply to the 1st Respondent statement of defence, thereby occasioning a miscarriage of justice. The said Exhibit 3 is the funeral programme of one late Nehemiah A. Timothy, a brother to the 1st Respondent where in the 1st Respondent was mistakenly described as a member of Isibok family as against his own claim that he hails from Etetor Royal House. On this ground, he is now laying claim to the village headship of Elile which is said to be the exclusive preserve of the Royal family, Etetor Royal House to which the 1st Respondent is but a grandson. He further submitted that if the Learned trial Judge had considered Exhibit 3, he could have arrived at a different verdict. See FATB LTD. v. PARTNERSHIP COMPANY LTD. (2004) FWLR (Pt. 192) 167. As a result, he urged the Court of Appeal to take up the evaluation of the evidence of the parties and exhibits and accord them their probative
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value which the Lower Court failed to do. See EMENEGOR v. THE STATE (2010) All FWLR (Pt. 511) 884 at 897. He then urged the Court to resolve this issue in their favour and allow the appeal.
On Issue No. 2 which is:
“Whether the Learned trial Judge was right when he held that it appears to him that the 1st Respondent was selected in accordance with the Law and custom as the village head.”
Learned Counsel stated that the bone of contention in this suit is whether the 1st Respondent is from the Royal family of Etetor and if the 1st Respondent purported selection as the village head of Elile is supported by the Royal House of Etetor whose birth right is to select and produce Elile village head meant for the Royal House. The 1st Respondent nonetheless claims that he is a bonafide son of the Royal family and even bears the family name. As a result of this any selection/presentation and/or approval of a candidate without first been presented by the Ruling house is void. Equally any such nomination without the consent and approval of the family head is void ab initio.
See Olajunja v. Adejugbe (2002) FWLR (pt. 98) 910 at 924.
He then submitted
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that since the purported selection/presentation of the 1st Respondent is being challenged by the Royal House as same was not done with their consent this Court should nullify same, allow the appeal and set aside the Judgment of the Lower Court.
On Issue No. 3
“Whether the Learned trial Judge was right in finding that the 1st Respondent’s evidence was more credible, accurate and probable than that of the Appellants.”
Under this issue, Learned Appellants Counsel referred copiously to the facts and submissions under Issue No. 2 and submitted that since the Royal family said that it did not approve of the 1st Respondent purported nomination, the 1st Respondent could not be so validly nominated and as a result, the 1st Respondent evidence could not be said to be more credible and accurate than that of the Appellants and urged the Court to so hold and resolve this issue on their favour. He then urged the Court to allow the appeal.
The 1st Respondent in his Respondent’s brief adopted all the three issues raised by the Appellants as his.
?In arguing issue No. 1 which is whether the learned trial Judge was right in finding and holding that the
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Appellants reply to the 1st Respondents statement of defence was inchoate and incompetent and proceed to expunge it for want of written Statement of oath accompanying it. Learned 1st Respondent Counsel answered the question in the affirmative. He submitted that by Order 18 Rule 1, the Reply of the Appellants was not in compliance with Order 3 Rule 2 (1) (b) (e) & (d) which said Reply to the 1st Respondent’s statement of Defence should have been “on oath” and not just reply to the Statement of Defence. In other words, the said Reply was not on oath as required by Order 2 Rule 1(c) of the High Court (Civil Procedure) Rules 2009 of Akwa Ibom State. What it means according to 1st Respondent Counsel is that the Learned trial Judge gave a proper interpretation/construction of Order 18 Rule 1 of the Akwa Ibom State High Court (Civil Procedure) Rules 2009. Exhibit 3 which accompanied the defective Reply by not being in compliance with the Rules of Court was properly struck out.
Exhibit 3 was erroneously admitted in evidence and was properly struck out in the course of evaluation of the evidence before the Court. See INTERNATIONAL BANK OF WEST AFRICA LTD V.
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IMANO (NIG) LTD (2001) VOL. 85 LRCN 995 at 1000 12 WACA 132 at 133; ESSO WEST AFRICA INCORPORATED v. ALLI (1968) NMLR 414 at 423. Since Exhibit 3 having not been front loaded in the said Reply on Oath, the Appellants have failed to comply with the Rules of Court, the Lower Court was therefore correct when it described it as inchoate and therefore incompetent. See ALADAJOBI v. NBA (2013) Vol. 55 NSCQR 179 at 183, OFORKIRE & ANOR v. MADUIKE & ORS (2003) VOL 106 LRCN 799 at 801.
Rules of Court he submitted must be complied with. See SOLANKE V. SOMEFUN (1974) 1 SC 141. The authority of FATB LTD v. PARTNERSHIP INVESTMENT COY. LTD (supra) cited by the Appellant according to Counsel do not apply in this case as the facts are distinguishable. He then urged the Court to resolve this issue on their behalf and do dismiss the appeal.
?On Issue No. 2 which is whether the Learned trial Judge was right when he held that it appears to him that the 1st Respondent was selected in accordance with the Law and custom as the village head. Learned 1st Respondent Counsel answered the above in the affirmative and that the trial Judge was right in holding that the 1st
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Respondent was properly selected in accordance with Law and custom as the village head as could be seen from overwhelming evidence in Court. The Authority of OLAGUNJA v. ADEJUDGE (supra) are not applicable in this case as the case do not have the same facts. On this issue, he urged the Court to resolve in their favour.
ISSUE 3
“Whether the Learned trial Judge was right in finding that the 1st Respondent evidence was more probable than that of the Appellant.”
Learned 1st Respondent Counsel answered the above in the affirmative because the evidence of the 1st Respondent was more probable than that of the Appellant. The 1st Respondent he stated was able to trace the genealogy of Eletors Royal Family which is a member to the Eneyor Usenegbe, the founder of Elile village. At page 38 of the records, the 1st Respondent was able to establish how his selection to succeed late Peter Aquan who died in 1994 came about and subsequent selection as the village head of Elile Community contrary to the Appellants inability to do same. On the basis of the above, Learned 1st Respondent then urged the Court to hold that the trial Judge was right to hold that the
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evidence of 1st Respondent was more probable than that of the Appellants. He then urged the Court to resolve this issue on their behalf and finally to dismiss the appeal for lacking in merit.
For the 2nd-4th Respondents, all the issues formulated by the Appellants were equally adopted by them for consideration. According to Learned Counsel, he agreed with the Learned trial Judge in finding and holding that the Appellants Reply to the 1st Respondent statement of defence was inchoate and incompetent and proceeded to expunge same for want of written statement of claim on oath accompanying it.
See Order 18 Rule 1 of the High Court of Akwa Ibom State (Civil Procedure Rules) especially Order 3 Rule 2(1) a-d. The operative word “SHALL” makes it mandatory that the provision must be obeyed. See NWANKWO v. YAR-ADUA (2011) 13 NWLR (Pt. 1263) 81 at 125; ONOCHIE v. ODEGWU (2006) 6 NWLR (Pt. 975) 65 at 90. The provisions of Order 2(1) (b-d) are very clear and the mandatory effect palpable. The use of the word ‘shall’ makes it mandatory for a claimant to file his witness Statement on Oath along with his Reply. See BUHARI v. INEC 36 2 NSCQR 475 at 778.
?He argued
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that though the Appellants complied with the provisions of Order 3 Rule 2(1) (d) but ignored the Provisions of the Rule 2 (1) (b) & (c). That if the Rule of Court intended to exclude the list of witnesses and Statement of witnesses on oath when filing a Reply it would not have included them. The Court has no power to re-write the Law. See BUHARI v. INEC 36 NSCQR 475. Therefore the Lower Court was right to have refused to make use of Exhibit 3 in the proceedings. He then urged the Court to resolve this issue on behalf of the 2nd – 4th Respondents.
On Issue No. 2
“Whether the Learned trial Judge was right when he held that it appears to him that the 1st Respondent was selected in accordance with the Law and custom as the village head.”
He submitted right away that the answer to the above is in the affirmative. The crux of the Appellants case is that the 1st Respondent is not a member of Eletor Royal Family and therefore not qualified to be selected as the village head of Elile and yet evidence abound from a witness that 1st Respondent is a member of the said family and even served as the secretary of Etetors Royal family for about five years,
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without being challenged even as the family head of Etetor Royal family.
With the above, Learned Respondent’s Counsel then submitted that the 1st Respondent was properly selected in accordance with the Law and custom of Elile village.
The Law on selection of a village head is as provided in Section 8(1) (a) of the Traditional Rulers Law Cap 134, Laws of Akwa Ibom State 2000 which states that it shall be in accordance with its tradition, custom and usages and subject to the provisions of Section 13(1) of this Law which deals on the qualification for the position of a village head. Learned 2nd – 4th Respondent’s Counsel submitted that there was no dispute in the selection of the 1st Respondent as the village head of Elile. He then urged the Court to resolve this issue in their favour.
Issue No. 3
“Whether the Learned trial Judge was right that the 1st Respondent evidence was more credible, accurate and probable than that of the Plaintiffs.”
Learned Counsel submitted that when the evidence of both the Appellants and that of the 1st Respondent are placed side by side, the evidence of the 1st Respondent is more credible, accurate and
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probable to sustain the Judgment of the trial Court. Also in Order to determine the proper person to occupy a chieftaincy stool, the history of the town as well as the history of the chieftaincy stool are relevant. See Arowolo v. Akapo (2007) All FWLR (Pt. 345) 200 at 208-209. In this case, he contended that the 1st Respondent gave a better history of the chieftaincy stool of Elile.
Finally, he urged the Court to dismiss the appeal and affirm the Judgment of the trial Court.
Before going into resolving the issues formulated for consideration it may be necessary to consider the guiding principle on the right of a plaintiff to sue in a chieftaincy contest. This was laid down in the locus classicus of M. A. Eleso v. The Government of Ogun State & 4 Ors. (1990) 2 NWLR (Pt. 133) 420 at 441 wherein the Supreme Court held:
“(a) The right of a Plaintiff to sue in a chieftaincy contest may arise in two different ways, viz:
(a) the Plaintiff may by his statement of claim and evidence show that the right that is being asserted is that of his family by reason of, say, their hereditary interest. In this type of case, it is the family, usually
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through their representative, who can bring the action on the premise that it is the civil right of the family that has been pleaded.
(b) The Plaintiff may assert his own right to the chieftaincy stool. What is required in such a case, is that his statements of claim and evidence – if evidence has been called – should show the nature of his interest and his entitlement of the stool. In such a case, he has locus standi, by virtue of Section 6(6) (b) of the (1999) Constitution. See also Momoh v. Olotu (1970) 1 All NLR 117 at 123, Senator Adesanya v. President of the Federal Republic of Nigeria (1981) 2 NCLR 358, (1981) 1 All NLR 1; Thomas v. Olusofoye (1986) 1 NWLR (Pt. 18) 669, Daramola v. A.G, Ondo State (2000) 7 NWLR (Pt. 665) 440, Owodunmi v. Reg. Trustees of CCC (2000) 10 NWLR (Pt. 675) 315 (SC); Ajagungbade III v. Laniyi (1999) 13 NWLR (Pt. 633) 92.
In the instant case, the Appellants appear to adopt the first option above since they are suing for themselves and on behalf of Etetor Royal Family Elile Community, Eastern Obolo. The Appellants as Plaintiffs at the Lower Court have a duty to show through their statement of claim that the right being
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asserted is that of their Etetor Royal Family, Elile Community, Eastern Obolo.
The Law in the selection of a village head is as provided in Section 8(1)(a) of the Traditional Rulers Law Cap 134, Laws of Akwa Ibom State 2000 which states that it shall be in accordance with the custom, tradition and usages and subject to Section 13(1) of this qualification for the position of the village head.
With the interest the Appellants showed in the Chieftaincy stool, the Appellants commenced their action by a writ of summons dated and filed on the 14th September, 2011 together with their statement of Claim, witness Statement on oath of their witnesses and other accompanying processes in compliance with Order 3 Rules 2(a) – (d) of the Akwa Ibom State High Court (Civil Procedure) Rules 2009.
The Appellants filed a Plaintiff’s Reply to the 1st Respondents statement of defence admitted and marked Exhibit 3. This said Exhibit 3 is what the Lower Court described as inchoate and incompetent for want of witness on oath accompanying it. This is the crux of the issue No. 1 as formulated by the Appellant viz:
“Whether the Learned trial Judge was right in
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holding and finding that the Appellants? Reply to the 1st Defendants/Respondents’ Statement of claim was inchoate and incompetent and proceeded to expunge it for want of a written statement on Oath accompanying it.”
Section 18 Rule 1 of the High Court (Civil Procedure) Rules 2009 of Akwa Ibom State provides thus:
“Where the claimant desires to make a reply, he shall file it within 14 days from the service of the defence with accompanied documents if any in line with the provisions of Order 3 Rule 2(1) (b) (c) & (d).”
Order 3 Rule 2(1) (b) (c) & (d) provides thus:
?All civil proceedings commenced by a writ of summons shall be accompanied by:
(b) List of witnesses to be called at the trial
(c) Written statement on Oath of the witnesses
(d) Copies of every document to be filed on at the trial.
The above is the statutory requirement in Law which has prescribed a legal line of action for instituting or initiating Court processes. All the above should be followed to the letter as a rule of Court.
In Solanke v. Somefun (1974) 1 SC 141, Sowemimo (JSC) as he then was opined:
“Rules of Court
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are meant to be complied with… Rules of Court are made to be followed. They regulate matters in Court and help parties to present their case for purpose of a fair and quick trial. It is the strict compliance with these rules of Court that make for quicker administration of justice.”
See Aladejobi v. NBA (2013) LPELR – 20940 (SC).
Having not filed the Appellants reply to the 1st Respondent’s statement of defence in compliance with the rules of Court, the Lower Court was therefore on the right path to discountenance Exhibit 3 in the evaluation of evidence at the Lower Court since the said document is “inchoate and incomplete.”
This is not a question of the Lower Court misinterpreting or giving erroneous construction/interpretation of Order 18 Rule 1 of the Akwa Ibom State High Court (Civil Procedure) Rules 2009 as submitted by the Appellant’s counsel. The said provision of the rule does not give any discretion to a party as Appellant’s Counsel wants to submit as regards the word “if any” used in the rules. The word ‘SHALL’ as used in Order 18 Rule 1 of the High Court of Akwa Ibom State (Civil Procedure) Rules 2009 denotes an obligation
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or a command and gives no room for discretion. It imposes a duty. A peremptory mandate is enjoined. See Bamaiyi v. Attorney-General, Federation and Anor (2001) 12 NWLR (Pt. 277) 466 at 497; Nwankwo v. Yar’Adua (2011) 13 NWLR (Pt. 1263) 81 at 125; Onochie v. Odegun (2006) 6 NWLR (Pt.975) 66 at 90; Buhari v. INEC 36 2 NSCQR 472 at 778.
In view of the above, I hereby resolve this issue in favour of the Respondent and hereby hold that the trial Judge was right in finding and holding that the Appellants reply to the 1st defendant (Respondent) statement of defence was inchoate and incompetent and proceeded to expunge it for want of witness statement on oath accompanying it.
On Issue No. 2 which is whether the learned trial Judge was right when he held that it appears to him that the 1st defendant (Respondent) was selected in accordance with the Law and custom as the village head of Elile.
?The crux of the Appellant’s case is that the 1st Respondent is not a member of Etetor Royal Family and is therefore not qualified to be selected as the village head of Elile. This assertion by the Appellants is not supported by his witness who under cross-examination
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(PW1) stated at page 271 that “the 1st Respondent actually served as the secretary, Etetor’s Royal Family for about five years” without any challenge from the Royal family as to his non-membership of Etetor Royal Family.
In his statement of defence, the 1st Respondent stated on page 36 of the records that he is the family head of Etetor Royal Family. This fact was not specifically denied and by the rules of pleadings, it is deemed admitted. See Alhaji Goni Kyari v. Alhaji Gronia Alkali & Ors (2001) 5 SC (Pt. 11) 192 at 205. It goes without saying therefore that the Appellant have admitted that the 1st Respondent is the family head of Etetor Royal Family. According to records, the 1st Respondent stated in his statement of defence that there exist until 2010 three families in Elile village namely:
(a) Etetors Royal Family
(b) Okorosiki Family and
(c) Isibok Family
Later five additional sub-families were carved out bringing the total to 8.
?When the last village head, late Chief Peter Aquan died, the selection of a successor was done by the three main families herein before mentioned. In 1995 during the burial ceremony of the late
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village head according to custom and tradition of Elile community, a successor was selected to fill the vacancy in Etetors Royal Family and the 1st Respondent was selected. Thereafter the three family heads namely Chief Apolos Ishmael Ikwutenen, Chief Aja Frank Ikenetip and the 1st Respondent unanimously selected the 1st Respondent to be the village head of Elile community and then presented same to the clan council of Chiefs to dine and wine with them in accordance with the custom and tradition of Eastern Obolo Local Government Area in March, 2011.
The Law on the selection of a village head is very clear and unambiguous. See Section 13(1) (a) of the Traditional Rulers Law Cap 134, Laws of Akwa Ibom State 2000 which states.
“In the case of a vacancy, the clan or village shall in accordance with its tradition, customs and usages and subject to the provisions of Section 13(1) of this Law, select a person to fill the vacancy…”
The Appellant on the other hand stated that after the death and subsequent burial of the immediate past village head, he was selected on the 23/4/2011. From the evidence on record, the 1st Appellant was selected on the 23rd
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of April, 2011, a month after the 1st Respondent was presented to the Traditional Rulers Council. In other words, the 1st Respondent was first in time.
From the above, it was therefore correct to say that the Learned trial Judge was right when he held that it appears to him that the 1st Respondent was selected in accordance with the Law and custom as the village head of Elile and the Law in respect of chieftaincy matters especially as stated under Section 13(1) (b) (c) & (d) of the Traditional Rulers Law, Cap 134 Laws of Akwa Ibom State 2000 on the eligibility for selection as a village head or clan. I therefore resolve this issue in favour of the Respondents and against the 1st Appellants.
On Issue No. 3 which is whether the learned trial Judge was right in finding that the 1st Respondent evidence was more probable than that of the plaintiff.
?The Plaintiff only contention here is that he is a member of a royal family of Etetor in Elile, village, a body responsible for nomination and selection of a prospective village head of Elile. That the said Royal Family did not nominate, select or approve the 1st Respondent purported nomination as the
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village head but himself.
The 1st Respondent on his part was able to trace the genealogy of Etetors Royal Family which he is a member to the Eneyork Usenegbe, the founder of Elile village. At page 37-38 of the Records of Appeal, the 1st Respondent was able to establish how his selection to succeed late Peter Aquan who died in 1994 came about and subsequent selection as the village Head of Elile community. In addition, the 1st Respondent had served as the secretary of Etetor Royal Family for about five years without challenge. By so acting as the secretary of the royal family, he gave a good account of the traditional history of both the town and the stool in contention. See Arowolo v. Akapo (supra). From the evidence of the 1st Respondent both in his pleadings and testimony in Court, there is no doubt whatsoever that he gave a more convincing history of the traditional stool than that given by the 1st Appellant whether or not is placed on the imaginary scale of justice. On the basis of that, I shall and hereby agree with the Respondent’s counsel in their submission that the 1st Respondent evidence was more probable than that of the plaintiff. As a result, I
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hereby resolve this issue No. 3 in favour of the Respondents.
Having resolved all the three issues in favour of the Respondent, I hereby hold that the appeal is not meritorious and it hereby fails and accordingly dismissed. The Judgment of the Lower Court is hereby affirmed.
I assess and fix cost in this appeal in favour of the Respondents at N50,000.00 and payable by the Appellants. Appeal dismissed.
Other Citations: (2016)LCN/8894(CA)
