H. H. Ntoe Akwa Edem Archibong & Ors V. Prince Charles Esin (2009)

LawGlobal-Hub Lead Judgment Report

KUMAI BAYANG AKAAHS, J.C.A.

This appeal is against the judgment of Philomena Ekpe J. of the High Court of Cross River State sitting at Ikot Nakanda Judicial Division which was delivered on the 21st day of December, 2007 in Suit No. HCA/9/2003. The appellants were the plaintiffs while the respondent was the defendant. Sometime in 1998, the Respondent was to be given Certificate of Recognition as the Village Head of Natunda Village. The 1st Appellant wrote a petition to the Chairman of Akpabuyo Local Government Area alleging that the Respondent was not an indigene of Natunda Village and so not qualified to be recognized and issued with the Certificate of Recognistion as the Village Head of Natunda. The Chairman found the Petition to be baseless and directed the Respondent’s Certificate to be given to him. When the Certificate could not be found where it had been kept the respondent petitioned to the Government of Cross River State and a new Certificate was issued to him in 2003. Despite the issuance of the certificate, the 1st Appellant through his counsel wrote a petition to the Traditional Rulers Council who further ruled that the Respondent was an indigene of Natunda Village. Not satisfied, the 1st Appellant together with some Village Heads instituted the action for and on behalf of Ifiang Qua Clan against the Respondent, the Special Adviser Political and Legislative Affairs Department, Office of the Governor, Calabar and the Government of Cross River State as the 1st, 2nd and 3rd Defendants respectively claiming the following reliefs:-

(a) An Order declaring the Certificate of Recognition issued to the 1st Defendant by the 2nd and 3rd Defendants as illegal, unconstitutional and an infringement of the Constitution of the Federal Republic of Nigeria, 1999; the Traditional Rulers Edict No. 14 of 1978 and the Cross River State Edict No. 1 of 1996.

(b) An order of perpetual injunction restraining the 1st defendant, his agents, servants, privies, family advisers, supporters, etc. from parading himself as the Village Head of Natunda Village, Ifiang Qua Clan; acting or receiving any correspondence/s nor performing any function in the like of and or in relation to Natunda Village howsoever.

( c) An order directing the 2nd, and 3rd Defendants to withdraw the Certificate of Recognition issued to the 1st Defendant, and to issue without condition or delay, a Certificate of Recognition as Village Head of Natunda Village to the 4th Plaintiff who is now the duely (sic) screened and nominated village head of Natunda Village by the Ntoe’s Cabinet, Ifiang Qua Clan and the people of Natunda Village, and currently acting as such.

(d) General Damages in the sum of N5m (Five Million Naira) arising from the reproach, shun, shock, confusion, friction, embarrassment and loss suffered by the plaintiffs and the people of Ifiang Qua Clan as ‘a result of the second and third defendants surreptitious manouvres and imposition of the first defendant on the good people of Natunda Village in Ifiang Qua Clan, Akpabuyo Local Government Area.

The 2nd and 3rd defendants filed their Statement of Defence on 22/1/2004 while the 1st defendant’s Statement of Defence was filed on 24/1/2004. After filing his Statement of Defence, the 1st Defendant brought an application dated 20th April, 2004 praying for an order striking out Suit No. HCA/9/203 for lack of jurisdiction.

On 31st January, 2005, the Solicitor-General, Ministry of Justice, Cross River State filed a Notice of Preliminary Objection on behalf of 2nd and 3rd Defendants to the effect that the suit was statute-barred as same was commenced against the 2nd and 3rd Defendants on 9/9/2003 when the act complained of occurred on 20th February, 2003 which is outside the three months allowed for any action against a public officer to be commenced. The evidence of the 1st Plaintiff was part-heard before the learned Solicitor-General argued his Notice of Preliminary Objection. Arguments of learned counsel for the parties were taken before the Ruling on the Preliminary Objection was given on 28th June, 2005. The Court upheld the objection and struck out the names of the 1st and 2nd defendants from the suit. The case continued against the 1st defendant. The 1st Plaintiff continued with his evidence up to 30/5/2006., Thereafter the case suffered four adjournments. 1st Plaintiff was cross-examined on 29/11/06. One Dominic Asuquo testified as PW2 and was cross-examined before the defendant gave evidence as DW 1 and called Eke Edem Ekanem Esin, a retired Civil Servant who testified as DW2. In her judgment dated 21/12/2007, the learned trial Judge found that none of the plaintiffs is claiming the Chieftancy stool of Natunda Village, not even PW2, Dominic Asuquo Batern who stated he is from Natunda Village. She agreed with the view that the headship of any particular village is the exclusive right of that village and not the entire clan. She concluded that since none of the plaintiffs and the witness in court are vying for the chieftaincy of Natunda Village, it follows that they have no locus standi to institute the action. The action was held to be incompetent and she accordingly dismissed it. ”

The Plaintiffs felt aggrieved and appealed against the decision in their Notice of Appeal filed on 20/3/2008 containing four grounds of appeal. The issues were not set out before they were argued but the following four issues are discernable from the brief filed namely:

1. Whether in fact and in law none of the Plaintiffs vied for the headship of Natunda Village or whether the facts available In evidence and on records sufficiently negatived the trial court’s conclusion and verdict.
2. Whether the learned trial Judge erred in law when he held that the suit is incompetent for lack of joinder of the Cross River State Government who Issued the Chieftaincy Certificate to the Defendant.
3. Whether the trial Judge misdirected himself when he held that the plaintiffs have nothing concrete to prove that the defendant is not an indigene “but that” the Defendant is armed with a Certificate of Recognition from Government”. Exhibit 9.
4. Whether the Trial Judge did not misdirect himself when he refused and, or failed to hold nor indict Defendant’s breach of traditional protocol and for cunningly shunning/by-passing the customary procedures for ascending the Chieftaincy throne of Natunda nay Ifiang Qua Clan.

On issue 1, learned counsel for the appellants argued that the statement of claim which was neither contested nor controverted contained facts that the 4th plaintiff is the Acting Village Head of Natunda; consequently he is from that village but inspite of this the learned trial Judge held that none of the plaintiffs had locus standi to institute the action. He said Section 15(1) (a) & (b) and (3) of the Traditional Rulers Law Cap T4 Vol.6 of 2004 vests the 1st plaintiff with the requisite locus standi to institute the suit. As a Clan Head of all the communities under Ifiang Qua Clan including Natunda, the 1st Plaintiff/Appellant has sufficient interest and locus over the stools in communities/villages under his control. He contended that interest is not restricted to the person vying for the stool alone, but all kingmakers, principal stakeholders of the stool. He submitted that the Plaintiff have sufficient legal right and interest to protect, and as such have the locus standi to maintain the action. He placed reliance on the following cases: EMEZI v. OSUAGWE (2005) ALL FWLR (pt. 259) 1801; BAMISILE v. OSASUYI (2007) 2 FWLR (pt.368) 2866.

In response, learned counsel for the Respondent argued that the action borders on the selection, installation, recognition and withdrawal of certificate of recognition issued to the Respondent by the Government of Cross River State as the Village Head of Natunda and falls under Chieftaincy matters and submitted that the right of a plaintiff to sue may arise in two ways, namely, either by hereditary or the Plaintiff must assert his own right to the chieftaincy stool as decided in ELESO v GOVERNMENT OF OGUN STATE (1990) 2 NWLR (Pt. 133) 420; EREJUWA II, OLU OF WARRI v KPEREBGEYI (1994) 4 NWLR (Pt.339) 416 arid EMEZI v OSUAGWU (2005) 3 FWLR(Pt. 269) 97.

It is important to ascertain the claim and hence determine if the appellants had the locus standi to institute the action. In paragraphs 1, 4, 6, 7, 10, 12, 13, 14, 15, 16, 17, 18, 19, 21 and 22(a) & (c) of the Statement of Claim, the Plaintiffs averred as follows: –

1. The First Plaintiff is the Clan Head of Ifiang Qua Clan In Akpabuyo Local Government Area of Cross River State and the custodian of the Culture and Tradition of the Ifiang Qua people.
2. The Fourth Plaintiff Is the Acting Village Head of Natunda Village in Iflang Qua Clan, Akpabuyo Local Government Area and member In Ntoe’s cabinet.
3. The Natunda village is one of the Fifteen Villages that constitute Ifiang Qua Clan in Akpabuyo. Local Government Area, established In 1990 and gazetted in 1996. Plaintiffs’ Natunda Community the Ntoe’s Cabinet and Akpabuyo Traditional Rulers Committee had toiled and laboured to the realization of the creation and gazating of the Natunda Village and without the knowledge, presence, contribution or privy of the Defendant whatsoever and howsoever. 10. The Plaintiffs aver that the Defendant’s manouvres knew no bounds when on September 3, 1976 he caused one Chief Edem Efana Henshaw and Hon.Charles E. Esin (Jnr) to write to the Chairman Akpabuyo local Government Area claiming to notify the Authority of the local Government Council that a purported “Ekanem Esi Family “In which they are Chairman, Village/Family Advisory” Committee and Secretary respectively have recommended the Defendant for authentication/confirmation as the Village Head of Natunda, Ekanem Esin of Akpabuyo local Government Area. Plaintiffs plead and shall rely on the said, letter at the course of trial of this case. Defendant is put on Notice to produce the originals of the said letter.
4. Plaintiffs aver that in the year 1999, when they discovered crafty moves by the defendant to seek recognition as Village Head of Natunda Village, the plaintiffs’ Ntoe Cabinet protested to the Special Adviser stating categorically that there is no family known as Ekanem Esin in Natunda Community; and that the claimants are fake and have no linkage with Ifiang Qua Clan nay, blood descendants with Natunda people of Ifiang Qua Clan. Plaintiffs plead and shall rely on her letter to the Special Adviser, Political and legislative Affairs Department, Office of the Governor, Calabar, dated 25th August, 1999 at the course of trial.
5. The Plaintiffs’ reaction and protest was equally prompted by the Special Adviser’s unexplained motives in her Inclusion of the names of the Defendant In the list for “Authentication of Village/Clans and Issuance of Certificates” sent to the Secretary, Akpabuyo Local Government Transitional Committee. Plaintiffs plead and shall rely on memo (list) to the Akpabuyo local Government Council, dated 19th August, 1999 at the court of trial.
6. The Plaintiffs’ Ntoe’s Cabinet wrote to the Executive Chairman of Akpabuyo Local Government Area on 17th February, 2000 reminding him of the Headship of Natunda Village dispute which was yet to be resolve (sic) as promised by them, and the sensitivity of the subject matter which ought not to be unduly delayed. Plaintiffs plead and shall rely on the said letter, and their correspondences(sic) in this regard dated 30/8/99 at the trial.
7. The Plaintiffs further aver that the Akpabuyo Local Government Council submitted her list of recommended village/clan head of Akpabuyo dated 14th May, 2002 to the Government of Cross River State for certlficatl6n and the name of the Defendant nor his claimed village was not listed. Plaintiffs shall plead and shall rely on the said list at the course of trial.
8. On the 14th day of May, 2002, the Akpabuyo Traditional Rulers Committee submitted names of uncertificated Chiefs to the Government for Issuance of certificate of recognition and the names of the Defendant was not among the names screened and listed (nor In the earlier Government list of 7/5/2002) since he never applied to the committee nor selected or nominated, neither is he an Indigence (sic) of Natunda Village to have qualified him, so to do Plaintiffs plead and shall rely on the said letter of Akpabuyo Traditional Rulers Committee to the then Permanent Secretary, Political and Legislative Affairs Department, Governor’s Office, Calabar, and that of 7th May, 2002 at the trial.
9. The Plaintiffs aver that despite repeated warning and caution against issuance of Certificate of Recognition to the Defendant as Village Head of Natunda Village, the Government bluntly ignored the Plaintiffs and went ahead on 20th February,2003 to Issue Certificate of Village Headship to a stranger of Natunda Village In the person of the disputed defendant, thereby Imposing him on the Ntoe’s cabinet, the Ifiang Qua Clan, the Akpabuyo Local Government Council and indeed the peace loving people of Natunda village whereupon the plaintiffs protested in their letter to the Special Adviser and through their counsel.Plaintiffs plead and shall rely on the said letter dated 10th March, 2003 and 21st March, 2003 respectively at the trial.
10. The 1st Plaintiff as Village Head of Ifiang Qua Clan where the subject matter (Natunda Village) belongs was born about 76 years ago in Ifiang Ayong Village and has never heard of nor known of,any village within his domain by name ‘Natunda Ekanem Esin, nor a native affiliation by name “Ekanem Esin Family”.

19.The Plaintiffs aver the Defendant is not an Indigene of Natunda Village/Ifiang Qua Clan and does not know the area nor live there at all. Neither was he nominated nor screened for any position, as is the manner of the Akpabuyo Traditional Rulers Committee in such appointments or selections. Plaintiffs plead and shall rely on letters inviting nominees for screening as Clan/Village Head for issuance of certificate of, recognition, particularly of one Chief Umo Bassey dated 26th April, 2002 and other correspondences(sic) related thereto dated 28th June, 1996 and 7th July, 1996.

21. The plaintiffs did not deserve the unclad shunning, disregards, neglect and huge embarrassment meted to them by the defendant, who, despite plaintiffs’ cautions, warning over the years, defied same and proceeded to craftily collect the certificate of recognition to govern a community he, knew nothing of and without recourse whatsoever, for ulterior motives which are adverse to the interest of the Plaintiffs, Natunda Village and the Ifiang Qua Clan.
22. WHEREOF, the plaintiff claims against the Defendant for:

(a) An Order declaring the Certificate of Recognition to the Defendant as Illegal, unconstitutional and an infringement of the Constitution of Federal Republic of Nigeria, 1999, the Traditional Rulers Edict No. 14 of 1978 and the Cross River State No. 1 of 1996

(b)………………………

(c) An order declaring null and void the certificate of recognition Issued to the defendant and directing the government to Issue the certificate of recognition as Village Head of Natunda Village to the proper chief in the person of Fourth Plaintiff who is the duly screened and nominated village head of Natunda Village by the Ntoe’s Cabinet, Ifiang Qua Clan and the people of Natunda Village, In Akpabuyo Local Government Area, within the jurisdiction of this Honorable Court.

(d) …………………………………………

The averments in the Statement of Claim and the reliefs sought reproduced above reveal that the dispute between the parties relates’ to chieftaincy namely the person who should be recognized as the Village Head of Natunda Village in Akpabuyo Local Government Area of Cross River State. In determining the standing of the appellants as plaintiffs to institute the action, the position of the law on the subject is that the right of a plaintiff to sue in a chieftaincy matter may arise in two ways:

i) he may establish in his statement of claim and lead evidence to show that the right that Is being asserted is that of his family by reason of any hereditary interest. In such a situation, the action should be by the family through their representatives and It must be clearly pleaded that it is the civil right of the family that is being claimed or pursued; and

ii) the plaintiff may assert his own right to the chieftaincy stool if he can show from his pleadings and evidence, if evidence has been led, the nature of his interest and his entitlement to the stool. It is not enough for him to merely say that he is a member of the family. He has to say further that he had an Interest In the chieftaincy title and plead further in his statement of claim how his interest arose. See: MOMOH & ANOR v OLOTU (1970) NSCC 99 at 104 per Ademola CJN; ELESO v GOVERNMENT OF OGUN STATE (1990) 2 NWLR (Pt. 133) 420; EREJUWA II, OLU OF WARRI v KPEREGBEYI (1994) 4 NWLR (Pt. 339) 416; EMEZI v OSUAGWU (2005) 2 FWLR (Pt. 269) 97.

Ideally, it is the 4th Plaintiff who should have instituted the action in his personal capacity to assert his right to the chieftaincy stool. The Plaintiffs did not set out to sue as representatives of the family to protect the family hereditary interest, it was rather the defendant now respondent who claimed in paragraph 12 of the Amended Statement of Defence that Natunda Village was founded by his great grand father- Ekanem Esin in 1892 and after his death he was succeeded by Archibong Ekanem Esin as Village Head. His (defendant’s) father, Edem Ekanem Esin succeeded Archibong Ekanem Esin. Those who came after his father were Mma Nkese, Archibong Archibong, Erita Archibong, Mrs. Rose Offiong (nee Ekanem Esin). The defendant then succeeded Mrs. Rose Offiong as the Village Head. The learned trial judge in reviewing the case put forward by the plaintiffs observed at page 214 of the records:

“None of the plaintiffs is claiming the chieftaincy stool of Natunda Village. I also agree with the view that Village Headship of a particular village is the exclusive right of that village and not the entire clan. From the evidence so far adduced only PW 2 DOMINIC ASUQUO BATEM stated that he is from Natunda Village. From all the evidence adduced, the said BATEM is not contesting for the Village Headship of Natunda.

According to him a certain UMO BASSEY OKON who was just selected declined and went into politics.”

Based on the evidence adduced the learned trial judge formed the opinion that none of the plaintiffs and witness in court is vying for the chieftaincy of Natunda and proceeded to hold that the plaintiffs had no locus standi to institute the action.

I am in total agreement with the finding which the learned trial judge reached that none of the plaintiffs is claiming the chieftaincy stool of Natunda Village. Paragraph 4 of the Statement of Claim which learned counsel alluded to as giving the 4th plaintiff a standing merely stated that 4. The 4th plaintiff is the Acting Village Head of Natunda Village..”

There is no averment that he was the person to whom the certificate of recognition as the Village Head of Natunda should have been presented instead of the defendant. In MOMOH & OLOTU. supra, Ademola CJN analyzing paragraph 1 of the Statement of Claim stated at page 104 as follows:

“The plaintiff says that he is a member of the Olukare Family. The question may be asked, is it enough for the plaintiff to state that he is a member of the family? Has he not got to state that he has Interest in the chieftaincy title? Surely not every member of a chieftaincy family as such has interest in the chieftaincy title. We are of the view that it is not enough for the plaintiff to state that he is a member of the family; he has to state further that he has an Interest in the chieftaincy title, and furthermore state in his statement of claim how his Interest in the chieftaincy title arose. It is difficult to say on the pleadings filed that the plaintiff has any locus in the matter.”There is no averment that 4th plaintiff was nominated and screened for the position of village head of Natunda Village to warrant the relief being sought in paragraph 22(c) of the said Statement of Claim that the Certificate of Recognition as Village Head of Natunda be issued to the 4th plaintiff who is the duly screened and nominated Village Head of Natunda Village. All along the person whose name was forwarded to be made substantive village head of Natunda Village was Chief Umo Bassey Okon (see the two letters ref. Nos ICC/NT/VOL.1/034 and ICC/NT/VOL. 1/036 dated 25th August, 1999 at pages 115 – 117 of Records). The learned trial judge was firmly rooted when she held that none of the plaintiffs had any locus standi to institute the action. She was therefore right to have dismissed the plaintiffs’ claims.

Issue No. 2 deals with the non joinder of the Cross River State Government. It is true that at the institution of the case, the Government of Cross River State was listed as the 3rd Defendant. The 2nd and 3rd Defendants successfully raised the preliminary objection of time bar and so their names were struck out from the suit.

The claims against the Defendants were made jointly, and severally. Looking at the reliefs contained in paragraph 25 of the Statement of Claim, relief (d) is joint while reliefs (a), (b) and (c) are several. When the preliminary Objection was sustained in favour of the 2nd and 3rd defendants, it affected the reliefs in paragraph 25(a), (c) and (d) but since the defendants were jointly sued, action could still be maintained against the remaining defendant in respect of paragraph 25(b) & (d) of the Statement of Claim if the Plaintiffs proved their case against him. But the obstacle of their locus standi had to be overcome which could be decided only after evidence has been taken. It was therefore a slip by the learned trial Judge to state that the plaintiffs failed to bring the proper parties to court, but this has not occasioned any miscarriage of justice. The time bar which the 2nd and 3rd defendants successfully raised made the action not to be maintainable. The submission by learned counsel for the appellants’ that the trial Judge believed, when he struck out the names of the 2nd and 3rd defendants, the suit was competent against the remaining defendant is correct but there is no legal basis that it still had credit or had merit since it depended on other issues to be resolved and the evidence available.Once the plaintiffs had no locus standi to institute the action, the merit of the evidence adduced cannot even be considered. It affects the competency of the suit. See: MADUKOLU v NKEMDILIM (1962) 1 NLR (Pt. 4) 587.Having resolved issues 1 and 2 in favour of the respondent and especially issue 2, consideration of issues 3 and 4 will amount to a mere academic exercise.

I find that the appeal has no merit and it is, accordingly dismissed with N20,000.00 costs in favour of the respondent against the appellants.

The appeal was deemed argued on the briefs filed. Though served with hearing notices, only the respondent was represented by counsel.

Other Citations: (2009)LCN/3218(CA)