Edumund Onyeama & Ors V. Engr. Dominic Obodoh (President-general, Eke Town Union) & Ors (2008)

LawGlobal-Hub Lead Judgment Report

VICTOR AIMEPOMO O. OMAGE, J.C.A.

In this appeal the appellants seek the following (a) an order that “the learned trial judge failed to arrive at the proper conclusion after having found the constitution to be “spurious” and clearly went outside the realms of the contest before the court” consequently the appellants seek a reversal of the order of the court below which dismissed the plaintiff’s claim.

In the court below the plaintiffs had sued for themselves and on behalf of the people of Amankwo in Eke Community. The plaintiffs have sued the defendants for themselves and on behalf of the community excluding Amankwo Eke in Udi Local Government Area and claim as follows:-

“(1) A declaration that the document titled “The Constitution for the office of the traditional head as Chief of Eke Community is not the Eke Community Constitution regulating the selection, appointment and installation of a traditional ruler for Eke Community.

(2) A declaration that the defendants have no Constitutional or Statutory Authority to nominate, select, install or present a traditional ruler for Eke Community.

(3) An injunction restraining the defendants, their agents, servants, privies from selecting, nominating or installing a traditional ruler for Eke Community.”

In the exchange of pleadings in the court below, the appellant filed process and testified through two witnesses, while in their statement of defence, the defendants denied the depositions of the plaintiff and testified through three witnesses. Written addresses were submitted to the trial court. Below is the summary of the testimonies of both parties. The plaintiff averred that from the existence of Eke as a community its traditional rulership has resided in Amankwo Community as the most senior village and remained in the family of the 1st and 2nd Plaintiff. The 1st plaintiffs witness then gave the oral history of the emergence of Amankwo from Enugwu to Eke, whose eldest child – son is Amankwo, followed by Oma, Ogwui Enugu and Amaofia. Amankwo, the eldest inherited their father’s rulership and Chief spokesmanship, Amankwo had the responsibility of fixing dates for the celebration of two important cultural festivals in Eke namely Akwali and Nshi, while Oma fixed dates for other celebration, and was the factotum, Ogwui fixed and announced dates for other festival like Akani. All villages he said took their names from the sons of Eke.

Plaintiffs first witness and Onyeama Onwushi of the plaintiffs’ family was of Amankwo stock and belonged to the Denaeghom dynasty which emerged from the hereditary leadership of Amankwo village in the scheme of governance of Eke town. The Plaintiffs witnesses gave evidence of the lineage of Onyeama from 1850 as follows:-

(i) Achala Ishi-Ani; (ii) Amuba; (iii) Danaegon (iv) Eze Anomuhu 1850-1860 (v) Ozo Oji 1872-1895 (vi) Onwushi Nkata 1872-1895 (vii) Onyeama Onwushi 1895-1933 (viii) Henry Onyeama 1933-39 (ix) Michael Onyeama 1937-1998. He said the rulership of Eke is not rotational among the village groups. The 2nd PW echoing the testimony of the PW1 said the colonial masters who came in the 20th century utilized the orderly line of succession to set up their administration, and issued chieftancy warrant to Onyeama Onwushi in respect of Eke town. He said Oshie was the progenitor of the whole of Agbaja clan. Onyeama Onwushi as the direct descendant of Oshie wielded tremendous power and influence over the entire Agbaja clan. In 1917 Onyeama Onwushi was conferred with the title of paramount Chief of Agbaja clan. This is published in the Nigerian Gazette of 13th September, 1917.

Prior to 1850, up to 1998, No one challenged the right of the plaintiff in Eke, to nominate, select, install a traditional ruler in Eke community. In 1976, when the purported chieftancy constitution was made, Igwe Michael Onyeama of the family of the plaintiffs had been on the throne for 39 years. He never heard about the existence of the chieftancy constitution until he died in 1998. The plaintiffs’ deposed that there was never a time when a general meeting was called in Eke community for a committee to draw up a chieftancy constitution for Eke. The so called draft constitution was never sent to 19wes cabinet when Igwe Michael Onyeama was alive and the said draft constitution which purports to arrange for rotation of Igwe to the town of Eke banished aside the custom for the nomination and installation of the traditional ruler.

He concluded by saying the draft constitution is an adroit attempt to wrestle from the 1st – 2nd plaintiffs family their exclusive right to traditional stool of Eke. It was in recognition of this fact that the plaintiffs ignored the 1st defendants’ letter of 26th April in which the defendant reminded the plaintiff that the latter did not submit names of their representatives for selection of members of committee for selection of traditional ruler for Eke.

The two witnesses for the plaintiff deposed in line that each will rely on the said constitution and the letter inviting the plaintiff to send names of the committee. The plaintiff also offered to tender and found on the constitution of Eke town Union 1986, to show the constitution of the right of the defendants as affirmed of Eke town Union.

The defendants opened their defence by informing the court that the 2nd plaintiff is dead, and Chief Anochili the 1st plaintiff is from Amankwo, the person now nominated is from Oma village in Eke town, Amankwo being the first village has served its turn as the traditional ruler in Mr. Michael Onyeama. The joined 14th defendant who hails from Oma village is the person next entitled under the constitution to be the traditional ruler of Eke. The defendants deposed that they will rely and found on the Constitution for the office of the traditional head or Chief of Eke community dated 8/8/76.

The first defendant witness claims that the said document is genuine and authentic. The constitution the witness deposed was made up of representatives of the five villages who appointed an ad hoc committee in a meeting of the representatives which held a meeting in Eke market square on 13th July, 1976. Witness pleads the minutes of the committee which with the said constitution was admitted in evidence as exhibit and the constitution exhibit J.

The approved constitution exhibit J was sent to and accepted by the other four villages of Eke at a meeting of Eke Community held on 21st July, 1976, he said infact when the need to select a new traditional ruler on the death of Igwe M. Onyeama, in 1998, the entire Eke community considered the constitution again on 19th March, 2000 at Eke Market Square. Four of the five villages of Eke accepted the document except Amankwo which dissented. A committee set up in April 2000 by the Town Union, had one of its terms of reference to investigate the allegations of Amankwo village, as to its authenticity of its claim. Some enquires were made in the ministry of Rural Development and Chieftancy Affairs. In the course of this he said they met one Mrs. Onwude who was the Permanent Secretary. He said the said Mrs. Onwude confirmed to then that the document including the constitution of 1976 was intact. He said upon the ascertainment, the committee invited memoranda from and consulted widely, unfortunately four wards only, Enugu Ofiogu, Obanagu Mshi/Ozoewo, and Akama Obunagu all from Amankwo village refused to honour the invitation. Eventually the 14th defendant was duly selected, and elected as the traditional ruler of Eke Community. The installation was made in accordance with the provisions of the constitution. He is from Oma the next village after Amankwo. The defendants deny all the averments and claims made by the plaintiff witness of the historical rulership dating to 1850, they said even Igwe Michael Onyeama was selected ruler of Eke by the provision of the constitution in 1937 when the last Igwe was appointed.

After the hearing, the trial judge received the written addresses of counsel and the judge Ahanonu J. adjourned the judgment which he delivered on 22nd March, 2005. In his judgment the trial court received the testimonies of the witnesses and concluded that the singular issue arising for determination is “Whether the plaintiffs have disclosed any right of their infracted by the defendants which entitles the plaintiff to any of the declaratory relief or injunctive reliefs the plaintiff seeks. He said the plaintiff did not plead the cancellation or wrong pagination of document extracted from the file which the defendants pleaded. He said a party is not required to plead evidence, however the court held that cross examination of the defendants witnesses by the plaintiff was most successful, having said that, the court wrote and asked how has the interest of the plaintiff been infracted. The trial judge said, while it is line that the defendants could not show how the disputed constitution got into the file of the Ministry of Chieftancy Affairs in the absence of a covering letter addressed to anybody in the ministry and despite the fact that only G. C Iloha could claim to have produced the document. The same document which Iloha alone went to bring allegedly from the Ministry, he alone without any previous directive from anyone despite the wish of other official staff of the ministry and the defendants. The same ministry official told the defendants that no such documents particularly the constitution of 1976 existed in the ministry of Rural Development and Chieftancy Affairs, Mr. Iloha alone produced it allegedly from the ministry. However the court held that the emergence of the document is cloudy. How Mr. Iloha alone could produce it. The court ruled further, that the kernel of the plaintiffs’ case as understood by this court is that the 1st plaintiff (now dead) aspired to the traditional rulership of Eke community. There is an age long custom of Eke custom of Eke community which permits hereditary traditional Igweship from Onyeama family. The traditional rulership of Eke has resided in Onyeama family in Amankwo Community the most senior village. Amankwo did not accept the constitution put forward by the defendants as guiding the selection of Igwe of Eke and have rejected same despite this; the defendants produced and circulated a spurious constitution at a meeting of Eke people on 19/3/2000. The Court ruled that “It is to be noted that the plaintiffs have not asked that the selection and installation of the 14th defendants on 19/3/2000 be nullified by this court. It is also clear that the plaintiff do not claim that the constitution other than the one produced by the defendants exists. The plaintiffs only say that based on custom of Eke people production of traditional ruler of Eke remains an eternal right of Onyeama family. Besides this nothing is said by the plaintiff etc.”

“This court tends to agree with the live of argument of learned counsel for the defendants that the actual plaintiff in this matter the Amankwo community failed to show their communal interest in the subject matter of their case” “The plaintiffs in the case have not disclosed how’ the use of exhibit J etc, to select and install a new Igwe of Eke affected their exclusive civil right especially when there is evidence that they were invited to join in the deliberation leading to the selection and installation in the year 2000, but they declined participation, Eventually the court ruled and held thus “All the attributes of a letter received in a government office in the cause of official transaction are lacking with respect to exhibit J and it appendices thereby giving credence to the plaintiffs’ allegation of spuriousness”, but in the end ruled thus “The court is not satisfied that the plaintiff made out a case entitling them to the declaratory reliefs they have sought in this suit. The failure of the two declaratory relief lead to the failure of the ancillary relief of injunction. In the result the plaintiffs’ action fails and it is dismissed.” The above judgment quoted was not consecutive as recorded by the trial judge only relevant portion thereof are quoted herein.

The plaintiffs were dissatisfied with the decision of the court they have filed this appeal.

The first ground of appeal filed by the appellant became ground 3, when by the leave of court the appellant sought two more grounds of appeal which now precede it Thus (1) “Had the plaintiffs not proved their case, when the trial judge found that the constitution was spurious, (2) Is the learned trial judge entitled to hold that the plaintiffs had no locus standi in this case, (3) Is the learned trial judge entitled to raise issues not contested by the parties and proceed to determine them without affording the parties or their counsel the opportunity of reacting to the new issues”

The respondents, who were defendants in the court below, adopted the same issues, and responded severally in different submissions from the appellants.

I commence this judgment with the appraisal of the evidence and submission of the appellants and it will be considered together with those of the respondents on the same issue raise. Both issues are the same. The first issue of both parties formulated by the appellant is “Had the plaintiff not proved their case? The issue has two arms, the second arm of the same issue when the judge asked and found “that the constitution was spurious”

My Lords, it is desirable in answering the first arm of this issue to look at the appellants claim in the court below. The claim in this’ case is the relief sought by the appellant. The relief sought is “a declaration that the document is spurious titled “the Constitution for the office of the Traditional head or Chief of Eke Community is not the Eke Community constitution regulating the s election, appointment and installation of a traditional ruler for Eke Community”. It is a relief for a declaratory order of the court.

My Lord the nature of a declaratory judgment is defined by the Supreme Court in the Government of Gongola State v. Tukur (1989) 4 NWLR (Pt.117) 592 where it rules as follows:- “A declaratory judgment of the court is an affirmation of a state or a status by a court. That in itself is a complete relief, see also In Okoya v. Santili (1990) 2 NWLR (Pt.131) 172, Karibi Whyte then of the Supreme Court said, “it is a matter of general consensus among academic writers and judicial decisions that a declaratory judgment which is an embodiment of the recognition of a particular right maybe the basis for subsequent proceedings to enforce such right where such right is threatened or is being violated. It seems to me correct to postulate that a declaratory judgment or order is recognition of a dormant right, until subsequent proceedings have been taken to protect the threat to a violation of the right so declared in the judgment or order”.

In the instant appeal, the apparent substance of the plaintiffs claim in the court below on the relief sought is a declaration that the Constitution offered by defendants for the traditional head or chief of the Eke Community is not the Eke Community Constitution regulating the selection appointment and installation of a traditional ruler of Eke Community. The imputation, being there exist another system as presented by the appellant. After hearing the evidence of other parties the duty of the trial court is to consider whether or not the plaintiff has established and proved the claim, that is to say whether the document presented by the defendant/respondents before the court to be constitution is indeed the Constitution of Eke Community to install the ruler of Eke. To determine this, the trial court function is to weigh the testimonies tendered in court by the plaintiff, which gave an account of traditional and hereditary succession to the rulership of Eke Community, which the defendant denies, and the introduction by the defendant of a constitution which the defendant submitted is for determination of the office of the traditional head or chief of Eke community, particularly as the presented constitution purport to regulate the selection, appointment and installation of a traditional ruler of Eke community. The trial court failed to do, this instead the court asked severally in the judgment delivered, on what way the right of the plaintiff now appellant is infracted. In my view the trial court is either in misconception of the issue or the said court allowed mischief to rule his judgment in the matter.

My Lords, in my understanding of the plaintiff’s claim ‘before the court, the plaintiff did not ask that a declaration be made in its favour or against it. It simply asked the court to declare whether the constitution presented by the defendant is a constitution of Eke community which brushed aside the traditional system of rulership in Eke, which by evidence the plaintiff aver resides in the family of the plaintiff of Amankwo village being the first village in the community. The second arm of prayer one is “Had the plaintiff not proved their case, when the trial judge found in his judgment that the 1976 constitution was spurious” The learned trial judge in the said judgment wrote concerning the said constitution’ exhibit J, tendered in the proceeding thus, “All these activities of a letter received in a government office in course of official transaction are lacking with respect to exhibit J. and its appendices thereby giving credence to the plaintiffs allegation of spuriousness.” As the court ruled that the plaintiffs’ allegation is credible is there a need to go further on that issue? The relief sought seeks to protect a dormant right. The answer therefore to the question whether the plaintiff/appellant has proved its claim to the relief for declaration is contained in the finding of fact of the court below, when the trial court found that the evidence sought by the defendant to support the genuineness of the said constitution cannot be relied upon. The issue had been that the defendant who claimed that the said document had been prepared and approved by the Ministry of Rural Development and Chieftancy Affairs and that the defendants through one Mr. Oloha had obtained a planton copy of the said constitution where others had failed and were told in the ministry of Chieftaincy Affairs that such a constitution does not exist in the Ministry. Indeed so certain were the trial court on this issue, when he wrote in his judgment. “It may well be that Igwe Michael Onyeama was not selected in 1976 under any such constitution as claimed by the defendants. It may also be true that the constitution exhibit J and the appendices were never filed officially with Udi Divisional Court as the Ministry of Chieftaincy in 1976 as claimed by the defendant” With such findings made by the high court in its judgment delivered on 22nd March, 2005, it seems to me that no doubt exist as to whether or not the plaintiffs now appellants have proved in the court below their claim for relief for declaration that the said constitution is spurious and not genuine and the plaintiffs now appellants are entitled to an affirmation order of the court below. The issue contested by the defendant/respondent is the same as claimed by the appellant in the first issue, I find the untrue the submission of the respondent that the onus of proof on the plaintiff was shifted on the defendant at the trial court, it simply is that the evidence tendered by the defendant to justify the genuineness of the constitution contradicts itself. In the event I find in favour of the appellant on this issue against the respondent.

The second issue formulated by the appellant for consideration is whether the trial court was entitled to hold that the plaintiff had no locus standi. The respondent in this appeal also adopted the above issue. As before I will treat the issue of both parties together. It is indisputable by both the appellant and respondent the legal interpretation of locus standi. It is the legal capacity to institute proceedings in a court of law. It is a standing which when the plaintiff proclaims his right in court and the court so find because of the interest sought to be protected in the plaintiffs’ claim, the court is seissed of jurisdiction to hear the suit. The legal term locus standi states at the same time, the right of the plaintiffs to be in court and the jurisdiction of the trial court to hear the case before the court. See Adesanya v. President of the Federal Republic of Nigeria (1981) 2 NCLR. 358. It is easy to simply answer the question contained in the plaintiffs/appellants issue for determination in the affirmative. The plaintiff in the court below represents that the interest of Onyeama family in Amankwo who are eligible to claim the rulership of Eke Community is sufficiently complete and that they are interested in the preservation of their right to go to court to prevent the named defendant/appellants from “adroitly wrestling from them the hereditary right to the rulership of Eke community. The plaintiffs in the court below have chosen to ask the court to preserve the right by the relief they seek from the court of declaration. The trial court became seissed of the jurisdiction to hear the matter because of its jurisdiction to make a declaratory order founded on the plaintiffs’ proved claim to the right to install a ruler in Amankwo. Here is an excerpt from the judgment of the court below which says, “in this case the plaintiffs have not disclosed how the use of exhibit J, and the appendices affected their exclusive civil right to install a new Igwe of Eke rights” This portion of the judgment in itself is indicative that the learned trial judge has a misconception of the facts or issue in the case. If in the perception of the judge, a party has an exclusive right, civil or otherwise to select and install an Igwe, especially as averred by the appellant, and that right is being threatened would there be any further need to say that the right is being infracted when the defendants advanced an alleged constitution which removes from the plaintiffs a claimed hereditary right. Surely there is no further need to prove the same. In fact the imputation of the quotation from the judgment is not that the plaintiff right does not exist, it is how is it contravened or infracted. There is therefore in the judgment a misconception of the facts in the claim before the court. From the facts in the judgment the learned trial judge did not in the judgment say that the plaintiff/appellant did not have a locus standi. If the court did so the court itself would have had no jurisdiction to hear the case and its consequential order would not have been a dismissal of the case because if a court has no jurisdiction in a matter it cannot enforce a coercive power on the case – see Akinbolade v. Fisko (1991) 1 NWLR 273. What the trial court asked is how the right of the plaintiff is affected. In this the court sought the basis of the plaintiff to seek the relief before the court. The Court of Appeal does not question the locus standi of the plaintiff and I so hold.

I resolve the issue in favour of the appellant against the respondent who had averred that the appellant did not have a right to institute the action.

In issue 3, the appellant asked if the learned trial judge was entitled to raise issues not contested by the parties, and proceed to determine them without affording the parties or their counsel the opportunity of reacting to the new issues raised by the judge” The respondent adopted the same issue and gave a different submission.

In our judicial system, the judge presiding over a suit before him adjudicates only on a matter in contest between the parties. The judge does not on his own formulate issues on which he adjudicates. It is in our jurisprudence that where a judge has cause in a case before him to formulate and direct attention of counsel to a point of law, he must necessarily ask the two counsel before him to address the court on such issue that he has raised – see Craig v. Craig (1966) 2 All NLR; Anyaduba v. NRTC (1992) 5 NWLR. Except on the issue of jurisdiction even then when it is raised suo motu by a judge he must ask for address from the counsel before him. Where the interest of justice permits, a judge may suo motu raise an issue and call for further address from counsel see Emmanuel Chukwuogor v. Richard Olugugbo Obram (1987) 3 NWLR.

The court is to decide only issues on which the parties have joined issues and a court should not formulate issues for the parties. Our judicial system does not allow a judge to formulate and rule on an issue, not contested by the parties before him. In the instant case in the court below, the learned trial judge proceeded on a frolic of his own to supply the information on republican nature of the Igbo nation when no one asked him and supplied various legislation which tends to discredit the claim of the plaintiff in favour of the defendant before him. In doing so the trial judge descended into the arena of conflict. It is not surprising therefore that the dust arising from the conflict at the Bar blinded the judge from dispensing justice. Such a procedure is not allowed in the judicial system of this country, see Ojo Osagie v. Adonri (1994) 6 NWLR (Pt.349) at 54, and it could result as it did in this case in a denial of fair hearing, see. Tokwa & Sons Ltd v. CFAO (1993) 4 NWLR (Pt.291) at 128; Olumisan v. Ogundapo (1996) 28 SCNJ 173 at 184 SC. It is indeed to avoid the occurrence of this that the rule exists that no court has power to grant relief or remedies not claimed – see Bola Ige v. Olumlavo (1984) 1 SC 258 at 276; see also Ojo Osagie v. Adonri (supra).

The appeal is allowed. I make no order for costs.

Other Citations: (2008)LCN/2781(CA)