Eze Lambert Okoye Akuneziri V. Chief P.d.c. Okenwa & Ors (2000)
LAWGLOBAL HUB Lead Judgment Report
MOHAMMED, J.S.C.
Chief P.D.C. Okenwa, hereinafter referred to in this judgment as the 1st respondent, was the plaintiff in Suit No. HOW/200/84 at the High Court of Imo State, holden at Owerri. In the Suit, the 1st respondent claimed against Eze Lambert Okoye Akuneziri (the appellant, in this appeal) and 1st, 2nd and 3rd respondents (defendants at the High Court) for the following reliefs:-
“(a) A declaration that the removal of the plaintiff as the traditional ruler of Ihitenensa Autonomous Community and the withdrawal of his recognition as such by Imo State Government is contrary to the Imo State Chieftaincy Law No. 22 of 1978 and the said withdrawal is therefore null and void and of no effect whatsoever.
(b) A declaration that the plaintiff is still the recognised Traditional ruler (Eze) of Ihitenensa Autonomous Community.
(c) A declaration that the subsequent recognition of Chief Lambert Okoye Akuneziri as the traditional ruler of Ihitenensa by the former Government of Imo State is contrary to Imo State Chieftaincy Edict (Law) of 1978 and Ihitenensa Chieftaincy Constitution and is therefore null and void and of no effect whatsoever.
(d) A declaration that the withdrawal of recognition of the plaintiff based on Justice Ojiako Panel’s recommendation was misconceived, irregular, unjust and unwarranted.
(e) A perpetual injunction restraining the fourth defendant from continuing to hold himself out or from acting or parading himself as the recognised Eze or Traditional Ruler of Ihitenensa Autonomous Community or from performing the function of a recognised Eze or traditional ruler set out in the traditional Rulers and Autonomous Communities Law of 1981.”
Pleadings were ordered and exchanged and issues joined went to trial before E.I.N. Nwogu, J. At the conclusion of the trial in which all the parties adduced evidence, the learned trial Judge, in a considered judgment, held as follows:
“I have carefully read the cases referred to by Counsel in their respective addresses and with respect, say that they are of no much assistance to me in deciding the issues before me. In the final analysis, I hold that the de-stooling and the withdrawal of the recognition of the plaintiff as in Exhibit’S’ is constitutional and in accordance with the Chieftaincy Law No. 22 of 1979 of Imo State.
The presentation and recognition of the 4th defendant is constitutional and proper.
The reliefs claimed by the plaintiff in paragraph 30(a),(b),(c),(d) and (e) of the further amended statement of claim must fail and are hereby refused and each of them is accordingly dismissed. Dissatisfied with the decision of the High Court, Chief P.D.C. Okenwa filed an appeal before the Court of Appeal, Port-Harcourt Division. The Court of Appeal, after re-evaluating the evidence adduced before the learned trial Judge, allowed the appeal, set aside the judgment of Nwogu J. and made the following declarations in favour of Chief P.D.C. Okenwa:
“(a) A declaration that the removal of the appellant as the Traditional Ruler of Ihitenansa Autonomous Community and the withdrawal of his recognition as such by Imo State Government is contrary to the Imo State Chieftaincy Law No. 22 of 1978 and the said withdrawal is therefore null and void and of no effect whatsoever.
(b) A declaration that the subsequent recognition of Chief Lambert Okoye Akuneziri as the traditional ruler of Ihitenensa by the former Government of Imo State is contrary to Imo State Chieftaincy Edict (Law) of 1978 and Ihitenensa Chieftaincy Constitution and is therefore null and void and of no effect.
(c) A declaration that the withdrawal of recognition of the appellant based on Justice Ojiako Panel’s recommendation was misconceived, irregular, unjust and unwarranted.
(d) A perpetual injunction restraining the fourth respondent from continuing to hold himself out or from acting or parading himself as the recognised Eze or Traditional ruler of Ihitenensa Autonomous Community or from performing the function of a recognized Eze or traditional ruler of Ihitenensa Autonomous Community or from performing the function of a recognised Eze or Traditional Ruler set out in the Traditional Rulers and Autonomous Community Law of 1981.”
Two separate appeals were filed against the decision of the Court of Appeal. On 29th July, 1997, Eze Lambert Okoye Akuneziri filed his Notice and Grounds of Appeal and on 21st August, 1997, the 2nd, 3rd and 4th respondents filed their Notice of Appeal. On 22nd October, 1998, the 2nd, 3rd and 4th respondents filed a Notice of Withdrawal of their appeal in this court. Following the said Notice of Withdrawal of the appeal, this court dismissed the appeal on 9th November, 1998.
The only appeal pending is the one filed by Eze Lambert Okoye Akuneziri, hereinafter called the appellant.
On 16th of June, 1998, Chief F.R.A Williams, SAN., learned counsel for the appellant, filed a motion on notice seeking for an order for leave to amend the Notice of Appeal originally filed by the appellant by substituting it with an Amended Notice of Appeal. The application was granted. Before the hearing of this appeal, learned counsel for the 1st respondent, raised a Preliminary Objection on the competence of the appellant’s appeal based on the following grounds:
“(i) From the reliefs sought in the 1st respondent’s Further Amended Statement of Claim (see pages 190 – 191 of the record) the 1st respondent’s action complained against the wrongs of the Imo State Government (2nd – 4th respondents).
(ii) The 2nd, 3rd and 4th respondents have on 9th November, 1998 withdrawn their appeal against the decision of the Court of Appeal which appeal was dismissed on the 9th November, 1998 by the Supreme Court without any objection from the parties herein.
(iii) The Supreme Court, by dismissing the said appeal has affirmed the aforesaid decision of the Court of Appeal being challenged.
(iv) The appellant cannot now pursue or prosecute this appeal in that doing so will amount to seeking a review of the decision of the Supreme Court given on merits on 9th November, 1998 in this case, that is, the decision dismissing the 2nd to 4th respondent’s appeal which constitutes an affirmation of the Court of Appeal’s decision now being challenged.
The argument of learned counsel for the 1st respondent in support of the Preliminary Objection is that since the appeal of Imo State Government, that is, the 2nd, 3rd and 4th respondents, was withdrawn and this court had dismissed it, the dispute between the parties had been finally terminated. He referred to Order 8 Rule 6 of Supreme Court Rules 1985, as amended and the cases of Ezomo v. A. G. Bendel State (1986) 4 NWLR (pt.36) 448 at462; Edozien v.Edozien (1993) 1NWLR (Pt.272) 676 at 700; Majekodunmi v. Wapco Ltd. (1992) (Pt.219) 564 at 577 and Orunlola v. Adeoye (1995) 6 NWLR (Pt.401) 338 at 349.
With respect to the submission of learned counsel for the 1st respondent on this issue, it must be observed that there were two separate appeals filed against the decision of the Court of Appeal. If one appellant withdraws his appeal and it is dismissed, the second appellant has the constitutional right to prosecute his appeal. It is axiomatic that the appellant would be affected by the decision of the Court of Appeal. A party to an appeal must be a person exercising the right of appeal to the Court of Appeal who is named in the record or a person having “an interest” in the proceedings which term would include a person affected or likely to be affected, or aggrieved or likely to be aggrieved by the proceedings. See Akande v. General Electric Ltd. (1979) 3- 4 SC. 115 and Maja and Ors v. Johnson (1951) 13 WACA 194. The appellant is indeed aggrieved by the decision of the Court of Appeal. He has exercised his right in filing this appeal because he is the central figure in the dispute leading to this appeal.
Where there is a withdrawal of the appeal, as the 2nd, 3rd and 4th appellants had done, it can safely be said that the resultant position is as if there was never an appeal filed by the appellant.Under Order 8 Rule 5 of the Supreme Court Rules 1985, as amended, an appeal which has been withdrawn shall be deemed to have been dismissed. The judgment dismissing the appeal withdrawn is not a judgment on the merits. A judgment on the merits is a decision that was rendered on the basis of the evidence and facts introduced. It must be a decision made after hearing argument and investigation and where it is determined which party is the right, as distinguished from a judgment rendered upon some preliminary or formal or merely technical or procedural point, or by default and without trial. Thus, the withdrawal of the appeal filed by the 2nd, 3rd and 4th respondents, in this case and the consequential dismissal of the appeal by this court has no bearing whatsoever on the appellant’s appeal. The withdrawal of the appeal can only be regarded as if the 2nd, 3rd and 4th respondents had never filed an appeal against the decision of the Court of Appeal, in this case. See Nkanu v. The State (1980) 3 – 4 S.C. 1. I have looked into grounds (ii), (iii), and (iv) of the appellant’s Amended Notice of Appeal which learned counsel for the 1st respondent argued that they were grounds of facts and mixed law and facts. However, learned counsel for the 1st respondent, Mr. Amaechina, has not advanced any reason to show which of the three grounds is a ground of facts and which is of mixed law and facts. I am not to pick and choose for the learned counsel. He must be specific and point to the ground of appeal which he wants to impeach. It is not for the court to do the exercise for him. However, having read through all the grounds I am quite satisfied that they are all grounds of law. The Preliminary Objection has therefore failed and it is dismissed.
I will now consider the issues identified by Chief Williams for the determination of this appeal. Learned counsel for the respondent adopted the same issues.
The issues are as follows:
“1. Whether the Governor had power under the Imo State Chieftaincy Law to withdrawal recognition from the plaintiff as traditional ruler of Ihitenansa.
- If the answer to question 1 is in the affirmative, under which particular provisions of the Imo State Chieftaincy Law No. 22 of 1978 can the decision of the Governor to withdraw or to grant recognition be supported.
- Was the court below correct in making the declaration that “the removal of the plaintiff/respondent as the traditional ruler of Ihitenensa Autonomous Community and the withdrawal of his recognition as such by the Imo State Government is contrary to the Imo State Chieftaincy Law No. 22 of 1978 and the said withdrawal is therefore null and void and of no effect whatsoever.
- Whether the court below was correct in making order for injunction against the 4th respondent.
- Whether the court below was correct in law in its criticism of the constitution or contents of the Ojiako Panel”
The facts briefly show that the 1st respondent, Chief P.D.C. Okenwa, was in appreciation of his contribution to the welfare of the people of Ihitenensa, unanimously selected in 1978 by Ihitenensa Autonomous Community as their Traditional Ruler. At the time of the 1st respondent’s selection, Ihitenensa had 18 Ichies. These are the Traditional Rulers, Advisers and sometimes referred to as Kingmakers. The appellant was one of the Ichies who selected the 1st respondent and presented him to the Government of Imo State for recognition as the Traditional Ruler for Ihitenensa Autonomous Community. The 1st respondent was subsequently issued with a certificate of recognition by the Imo State Government as required by Chieftaincy Edict No. 22 of 1978.
Following various acts of breach of the Chieftaincy Constitution of Ihitenensa Autonomous Community, which included the refusal of the 1st respondent to sign and signify his acceptance of the Community’s Constitution, the people passed a vote of no confidence in him. The 1st respondent was thereafter removed by the Autonomous Community as their Traditional Ruler. After the removal of the 1st respondent, the Community selected the appellant as their new Eze/Traditional Ruler and presented him to the Government for recognition. The Imo State Government recognised the new Eze on 31st December,1980.
It is pertinent at this juncture to mention Justice Ojiako Chieftaincy/Autonomous Community Panel of Inquiry which was set up by Imo State Government to look into disputes relating to Chieftaincy/Autonomous Communities in various parts of the state. The Commission investigated the allegations of Ihitenensa Autonomous Community against Eze P.D.C. Okenwa,the 1st respondent and submitted its report to the government. The report formed the basis of withdrawal of recognition of the 1st respondent by the Government which was sent to the 1st respondent through a letter dated 15th January, 1981.
Considering the synopsis of the facts given above, this appeal hinges on the law governing appointment and deposition of the Traditional Chief of Ihitenensa Autonomous Community. There is no dispute over the fact that Ihitenensa Autonomous Community has been recognised by Imo State Government. See Section 26(1) of Imo State Chieftaincy Law No. 22 of 1978. Under Section 3 of the Chieftaincy Law, it has been provided that each autonomous community shall select its Chief and present him to the Chief Executive of the Local Government which has power over the autonomous community. The selected Chief will be forwarded to the Governor through the Commissioner in charge of Chieftaincy matters.
The main question for determination in this appeal is whether the Imo State Government’s withdrawal of recognition of the 1st respondent as the traditional ruler of Ihitenensa Autonomous community is contrary to Imo State Chieftaincy Law No. 22 of 1978. The Constitution of an Autonomous Community is a factor to be considered in determining the details about the custom of the Community with respect to the appointment and deposition of their chief. Under section 10 of Imo State Chieftaincy Law, 1978, it has been provided as follows:
” …every autonomous community whose Chief has been recognized by the Military Administrator shall, where available, forward to the Chief Executive of the Local Government of the area concerned, a copy of the constitution of that community which shall contain –
(a) the customary code of conduct to which the recognized Chief must subscribe;
(b) a detailed statement of the customary law of the community regulating the selection, appointment or identification, suspension, deposition, rights and privileges of the Chief of the community.”
It is therefore abundantly clear that it is the Constitution of the Autonomous Community which regulates the selection, appointment or identification, suspension, deposition, rights and privileges of the Chief of the Community. Chief Williams submitted, quite rightly, that under the Chieftaincy Law, the appointment or selection of the chief is a matter for the Community whilst recognition is a matter for the State Governor. I also agree with learned counsel for the 1st respondent that under Imo State Chieftaincy Law No. 22 of 1978, the authority to remove a traditional ruler is the Governor. He does so by withdrawal of the certificate of recognition issued to the traditional ruler which signified his appointment. See Ude v. Nwara (1993) 2 NWLR (Pt.278) 638 and 644 and University of Nigeria Teaching Hospital Management Board v. Nnoli (1994) 8 NWLR (pt.363) 376 at 401 where Onu JSC held:
“When a statute directs that certain procedure be followed before a person can be deprived of his right, whether in respect of his person, property or office, such procedure must be strictly followed.”
Now, which section of the Chieftaincy Law provides for the deposition or removal of a traditional ruler in Imo State The Court of Appeal referred to Sections 9 and 14 of the Chiefs Law in its judgment when it considered the law applicable for the withdrawal of recognition of a recognised chief in Imo State.
Sections 9 and 14 provide:
“9. Notwithstanding the provisions of section 8 of this Edict, the Military Administrator may suspend, or withdraw the recognition of a recognised chief if the Military Administrator is satisfied that such suspension or withdrawal is –
(a) necessary having regard to persistent acts of violation of the code of conduct by the Chief as required by the customary law of the community he represents;
(b) necessary in the interest of peace, order and good government;
14.(1) Whenever there are allegations of grave misconduct against a recognised chief, the Commissioner may cause an administrative enquiry to be held in respect of such allegations.
(2) Where the Commissioner, after such enquiry, is satisfied that such allegations are proved against the Chief, or that the Chief has ceased to enjoy the popular support of his community, the Commissioner may advise the Military Administrator to withdraw the recognition of such a Chief. I do not see any difficulty or ambiguity in construing the meaning of Sections 9 and 14 of the Chief’s Law. I have not seen from the wordings of the statute where the court below could support the following finding which it made in its judgment:
“It must be stated again, that by the clear provision of Section 14 of the Chieftaincy Law 1978, it is mandatory that the Governor of Imo State (sic) seek the advice of the Commissioner for Chieftaincy Matters before deciding to withdraw the recognition of a recognized chief.”
The court below wants to say that the Governor cannot exercise the power given to him by the statute to withdraw recognition of a traditional ruler until he receives an advice from the Commissioner to do so. It is plain that Section 9 did not provide for seeking such advice. It should be borne in mind that a Commission of Inquiry, to wit, Justice Ojiako Panel, had been set up by the Imo State Government to investigate the disputes relating to Chieftaincy and or autonomous communities in various parts of Imo State. It was after the Commission had submitted its report on the dispute between the 1st respondent and Ihitenensa Community that the Governor withdrew recognition from him. Chief Williams submitted that it was within the Governor’s powers to withdraw recognition from any traditional ruler once he is satisfied that there are allegations of grave misconduct against a recognised chief. The appellant appeared before Justice Ojiako Panel and defended the allegations made against him and when the Panel’s report was considered, the government withdrew its recognition from him. This court once decided a similar case which involved withdrawal of recognition from a traditional ruler in Imo State. In The Military Governor of Imo State v. Chief Boniface Nwauwa (1997) 2 NWLR (Pt.490) 675 at 710, this court held as follows:
“In the present case, the Imo State Government, following allegations of grave misconduct against the respondent, set up an Administrative Board of Inquiry which duly sat, investigated and submitted its recommendations to the government, fully put his case across to the panel, at the conclusion of which exercise the panel submitted its report to Government. It cannot be disputed, on the law, that the Military Governor under section 18(4) of the said law No. 11 of 1981 is fully entitled to withdraw the recognition of the respondent, with or without White Paper, if, after an inquiry set up by him, he is satisfied that the traditional ruler concerned has ceased to enjoy the popular support of his community. This is what happened in the present case and I am unable to fault this exercise of discretion by the Imo State Military Governor in the instant case.”
I am therefore satisfied that the High Court is right that the Military Administrator acted within his powers as provided for under Section 9 of the Chief’s Law of Imo State to withdraw the recognition from the 1st respondent as the Traditional Ruler of Ihitenensa Autonomous Community. For the reasons I have given above the court below is wrong to make the following declaration.
“A declaration that the removal of the plaintiff as the traditional ruler of Ihitenensa Autonomous Community and the withdrawal of his recognition as such by the Imo State Government is contrary to the Imo State Chieftaincy Law No. 22 of 1978 and the said withdrawal is therefore null and void and of no effect whatsoever.”
This decision takes care of issues (i), (ii) and (iii). The order for injunction which has been raised in issue (iv) was made sequel to the declaration that the procedure followed by the Governor in withdrawing recognition from the 1st respondent as the Eze of lhitenensa was contrary to Chieftaincy Law No. 22 of 1978 of Imo State. The order of injunction, being ancillary to the declaration made by the court below, must fail since the declaration made in favour of the 1st respondent has now been set aside by this judgment.
The court below cannot be right to hold that it was improper to appoint Ojiako Panel under Section 15 of the Chieftaincy Law 1978.Section 15 of the Chieftaincy Law provides as follows:
“15(1) A panel shall be set up at the State level by the Administrator to look into disputes or protests relating to –
(a) Chieftaincy and/or
(b) Autonomous Communities
(2) The Panel shall comprise of –
(a) Judge of the High Court or a legal practitioner not less than 15 years post-call experience, who shall be Chairman of the Panel.
(b) a Senior official of the Cabinet office who shall be Secretary to the Panel.
(c) Two other members appointed by the Military Administrator.
- The members of the Panel set out in paragraphs (a) and (b) of subsection (2) shall be appointed by the Military Administrator on such terms and conditions as shall be stipulated in the instrument of appointment.
The argument of learned Justice Rowland, JCA, that section 15, reproduced above, is a general provision is flawed because the power given to the Military Administrator (Governor) to set up a panel to look into disputes relating to Chieftaincy and Autonomous Communities can be exercised under the provisions of Section 15 of the Chieftaincy Law. It is clear from the instrument published as I.S.L.N. No. 33 of 1980 that the Commission’s appointment conformed with the provisions of that Section.
The Attorney-General of Imo State, D.C. Denwigwe, who appeared for the 2nd, 3rd and 4th respondents filed a brief and applied to address the court. We refused to grant him permission to do so because the 2nd, 3rd and 4th respondents defended the decision of the trial court at the Court of Appeal as respondents.
Wherein they urged that court inter alia to hold:
“(iii) That the withdrawal of recognition of the appellant was proper and the Governor was validly and constitutionally entitled to set up Ojiako Panel of Inquiry as he did. Any decision or action based on the report of Ojiako Panel is valid.
(iv) That the Ojiako Panel was set up according to law and its proceedings were validly conducted and in accordance with law.
(v) That the learned trial Judge properly evaluated the evidence of the appellant and rejected his story.
(vi) The Court of Appeal should therefore dismiss this appeal.”
When the court below allowed the appeal and set aside judgment of the trial court, the 2nd, 3rd and 4th respondents filed an appeal against the decision of the Court of Appeal. As I mentioned earlier in this judgment, they later withdrew the appeal and this court dismissed it. After their appeal was dismissed, they somersaulted and joined Chief P.D.C. Okenwa to hold (a) that the withdrawal of the recognition of the 1st respondent was founded upon void grounds and as such void; (b) that the recognition of the appellant was founded upon fundamental breach of the applicable statute to the extent that he was put on the same throne while the 1st respondent was still on that throne, and (c) that the appeal be dismissed. This is contrary to what they argued at the court below. This is wrong. Amazingly, it was the Attorney-General of Imo State who prepared the brief for the 2nd, 3rd and 4th respondents and who came before this court urging us to permit him to defend this deliberate twist in the stand of the government of Imo State with respect to the appointment of the appellant as the Traditional Ruler of the Ihitenensa Autonomous Community.
In conclusion, I hold that the Military Administrator (Governor) of Imo State has power under the Chieftaincy Law No. 22 of 1978 of Imo State to withdraw recognition from Chief P.D.C. Okenwa as the Eze of Ihitenensa. The Governor relied on the complaints made by the communities of Ihitenensa and the report of Ojiako Panel before he withdrew the said recognition. This appeal has therefore succeeded and it is allowed. The judgment of the Court of Appeal is hereby set aside. I restore the judgment of the High Court which dismissed the claim of Chief P.D.C. Okenwa.
The appellant is entitled to costs of this appeal which I assess at N 10,000.00 and N3,000.00 at the court below.
SC.126/97
