ANTIA & ORS v. ANTIA JP & ORS (2021)

ANTIA & ORS v. ANTIA JP & ORS

(2021)LCN/15045(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, February 24, 2021

CA/C/320/2017

RATIO

POSITION OF THE LAW ON THE DISTINCTION BETWEEN PERSONS WHO ARE PROPER PARTIES, DESIRABLE PARTIES AND NECESSARY PARTIES

The apex Court in GREEN V GREEN (1987) 3 NWLR (prt. 60) 481 drew the distinction between persons who are proper parties, desirable parties and necessary parties. Proper parties are those who though not interested in the plaintiffs claim, are made parties for some reasons e.g. where an action is brought to rescind a contract any person is a party to it who was active or concurring in the matters which gave the plaintiff the right to rescind. Desirable parties are those who have an interest or who may be affected by the result. Necessary parties are those who are not only interested in the subject matter of the proceedings but also who in their absence, the proceedings could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff. See also F.H.A. V OLAYEMI (2017) LPELR – 43376. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

QUESTIONS TO BE CONSIDERED IN DETERMINING THE EFFECT OF NON’JOINDER OR MIS-JOINDER

In GREEN V GREEN (Supra), the Supreme Court per Oputa JSC at page 480 maintained that in order to decide the effect of non-joinder or even mis-joinder of a party, the Court should ask itself the following questions:- (a) Is the cause or matter liable to be defeated by non-joinder? (b) Is it possible to adjudicate on the cause or matter unless the 3rd party is added as a defendant? (c) Is the 3rd party a person whose presence before the Court as a defendant will be necessary in order to enable the Court to effectually and completely adjudicate or settle all the questions involved in the cause or matter. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

MEANING OF A PERVERSE FINDING OF THE COURT

A perverse finding is a finding of facts which is merely speculative and not based on the pleadings and evidence before the Court or where Court has drawn wrong inference from the evidence before it thereby occasioning a miscarriage of justice. See IWUOHA V NIPOST LTD (2003) 1 NWLR (prt.822) 308, and OVERSEAS CONSTRUCTION COMPANY (NIG) LTD V CREEK ENTERPRISES (NIG) LTD (1985) 3 NWLR (prt.13) 407. PER MUHAMMED LAWAL SHUAIBU, J.C.A.

CIRCUMSTANCE WHERE AN APPELLATE COURT WILL INTERFERE WITH THE EVALUATION OF EVIDENCE MADE BY THE TRIAL JUDGE

The law is trite that it is within the purview and competence of the trial judge to first evaluate the evidence of witnesses. He does not share this jurisdiction with the appellate Court. He has the exclusive jurisdiction to first evaluate the evidence of the witnesses. Where the evaluation of the trial judge is borne out from the evidence in Court, an appellate judge cannot interfere. In other words, an appellate judge cannot interfere in such a circumstance, even if he comes to the conclusion that he should have evaluated the evidence of the witness differently, in the absence of a perverse evaluation. However, where the evaluation of the evidence by the trial judge is perverse in the sense that it is not properly borne out from the evidence before him, an appellate judge is competent to re-evaluate the evidence on the records before him and come to a proper decision. See IWUOHA & ANOR V NIPOST LTD & ANOR also reported in (2003) LPELR – 1569 (SC). PER MUHAMMED LAWAL SHUAIBU, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

MR. COLLINS AKPANOBONG ANTIA 2. HRM OKUKU IME UDO USORO INYANG (PARAMOUNT RULER – IBIONO IBOM L.G.A) 3. ETEIDUNG (DR.) O.R.U. ANTIA, (IKOT ABA, IBIONO IBOM L.G.A) 4. ETEIDUNG LOUIS OWEN AKPAN (GROUP HEAD, IBIAKU GROUP OF VILLAGE) 5. ETEIDUNG EDEM UDOFIA AKPAN (VILLAGE HEAD, IBIAKU IKOT USEN) APPELANT(S)

And

CHIEF (DR.) UDOFIA UDO ANTIA JP 2. REVEREND EMEDIONG ETIM ANTIA 3. CHRIST SENIOR SERVANT EYIBIO ETIM ANTIA 4. MR. INI ETIM ANTIA RESPONDENT(S)

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Akwa Ibom State sitting in Itu Judicial Division Coram, Hon. Justice Edem Akpan, delivered on 16th May, 2015 entering judgment in favour of the plaintiffs.

By the writ of summons and statement of claim respectively filed on the 24th March, 2016, the plaintiffs claimed against the defendants as follows:-
1. A Declaration that the certificate of recognition as family head of Nung Utigha family issued by the 2nd defendant to the 1st defendant through the recommendation of the 3rd, 4th and 5th defendants are null and void and of no effect.
2. A declaration that the 1st defendant is statutorily not competent to manufacture, produce and issue any certificate to any person as Family head in contravention of the clear provisions of the Traditional Rulers Law.
3. A declaration that all the certificates purportedly manufactured and produced and issued to the 1st defendant or any person(s) in Ibiono Ibom Local Government Area as family head is null and void and of no effect.

4. A declaration that the 2nd, 3rd and 5th defendants have no power or authority to breach and violate the custom and tradition of Nung Utigha family of Ikot Usen Ibiono Local Government Area by over-reaching and selecting the 1st defendant who is third in the hierarchy in the family to the position of family head.
5. A declaration that the 1st defendant having been wrongly selected the 2nd – 5th defendants and imposed on the plaintiffs cannot be the family head of Nung Utigha Ikot Usen and all duties, activities, control of family property during the period was illegal, null and void.
6. An order of Court restraining the 2nd defendant from further manufacturing the illegal certificate of recognition and issuing same to family heads in Ibiono Ibom Local Government Area.
7. N500,000 damages against the defendants.

Upon service of the originating processes on the defendants, they denied plaintiffs’ claim and insisted that the 1st defendant is the only recognized family head of Nung Utigha and is so acting in that office to the satisfaction and approval of Nung Utigha family; Ikot Usen village and Ibiono Ibom clan.

After the exchange of

pleadings, the matter proceeded to trial with both parties calling oral and documentary evidence. At the end of the trial and in a reserved and considered judgment delivered on 16/5/2015, learned trial judge entered judgment in favour of the plaintiffs declaring the certificate of recognition as family head of Nung Utigha family issued by the 2nd defendant to the 1st defendant through the recommendation of the 3rd, 4th and 5th defendants as null and void. The plaintiffs were also granted sundry reliefs.

Dissatisfied, appellants appealed to this Court through a notice of appeal filed on 14/6/2017. Subsequently, the appellants filed another notice of appeal on 10/7/2017. While the appellants’ initial notice of appeal contains an omnibus ground, the latter contains five grounds of appeal at pages 135 – 138 of the record of appeal.

Distilled from the latter grounds of appeal, learned counsel of the appellants’ nominated the following four issues for the determination of this appeal:-
1. Was the learned trial Judge right in holding that the 2nd appellant is statutorily incompetent to issue any certificate to any person as Family

Head in Ibiono Ibom and in declaring all such certificates null and void when there was no evidence before the Court and no findings in the judgment of the learned trial judge to support the decision?
2. Was the learned trial Judge right in holding that age alone is the only criterion for ascension to the position of family head contrary to the evidence of witnesses to the contrary?
3. Was the learned trial Judge right in holding in his judgment that the 1st respondent’s suspension from Nung Utigha family had been lifted?
4. Was the learned trial Judge right in assuming jurisdiction over the 2nd, 3rd, 4th and 5th appellants?

Learned Counsel for the respondents on his part also nominated four issues for the determination of this appeal thus:-
1. Whether the filing of two different Notices of Appeal on two different dates and withdrawing the leave of the honourable Court is not an act of affront by the appellants and constitute a breach of the Court of Appeal Act 2004 (as amended in 2010) and Court of Appeal Rules 2016?
2. Whether the Hon. Trial Judge did not have the jurisdiction in declaring as prayed by the respondents to

wit: that the act of 2nd appellant by producing and issuing certificate of recognition is unstatutory?
3. Whether the Hon. Trial Court was not right in taking judicial notice of the prevalence of the custom of Ibiono Ibom community in accordance with the law.
4. Whether the mere withdrawal of the certificate of recognition as a Justice of Peace conclusively proves bad character of the 1st respondent as to render him and Nung Utiha family contemptuous in Ikot Usen village community and the public in general.

I have carefully perused the two sets of issues as nominated by the respective Counsel but the four issues nominated by the appellants are preferred by me for being concise and quite apposite for just determination of the appeal. Thus, the appeal will be determined on the bases of the four issues nominated by the appellants.

Proffering argument on his issue No.1, learned Counsel for the appellant referred copiously to the evidence adduced by the plaintiffs in contending that none relates to the issue of certificate of recognition to family head in Ibiono Ibom not to talk of whether same contravene any law or tradition. He submitted that

the learned trial judge has abdicated his duty of giving valid reason(s) in his judgment and thus there was no basis of granting reliefs 2 and 3 of the respondents herein. Counsel cited the cases of CPC V YUGUDA (2013) 7 NWLR (prt.1354) 450 at 456, OGBORU V UDUAGHAN (2012)11 NWLR (prt.1311) 237 at 386 and ABUBAKKAR V- NASAMU (2012) 17 NWLR (prt.1330) 523 at 444.

On issue No.2, learned Counsel argued that apart from old age there are other criteria of choosing family head such as integrity, general acceptability amongst others but the trial Court jettison completely the evidence adduced in that respect and relied solely on the old age to hold that the 1st respondent is qualified to be the head of Nung Utigha family being the oldest man.

As regards the 1st respondent’s suspension from the Nung Utigha family on 14/7/2005, learned Counsel for the appellants submitted that where pleadings are not supported by evidence of witnesses, it amount to nothing and has no effect in the adjudication process. He referred to REGISTERED TRUSTEES OF B.C. & S V EDET (2016) 5 NWLR (prt.1505) 3787 at 403 and ANYAFULU V MEKA

(2014) 7 NWLR (prt.1406) 396 at 427 to contend that apart from the verbal assertion, there was nothing else before the trial Court justifying the conclusion that the 1st respondent’s suspension was lifted. Counsel submitted further that if the suspension was lifted, the respondents would have tendered a letter to that effect from the Nung Utigha family.

Finally, on issue No.4, the appellants’ contention is that having averred that the 2nd – 5th appellants acted as paramount Rulers of Ibiono Ibom Local Government Traditional Rulers Council, it was patently wrong to sue them in their private capacities. And that in spite of the failure of the respondents to show that the 2nd – 5th appellants selected the 1st appellant, the trial Court granted respondents’ reliefs Nos. 4 and 5 in the absence of any shred of evidence justifying same.

Reacting to the above, the respondents submitted that the 2nd appellant was sued as a 2nd defendant and also being described as sued as a paramount ruler – Ibiono Ibom Local Government Area and having not raised any objection as to the status or capacity of which the 2nd appellant was

sued, the 2nd appellant was a proper party in the suit of respondent at the lower Court. Counsel cited and relied on Order 13 Rule 4 of the High Court (Civil Procedure) of Akwa Ibom State and the case of LAGOS STATE BULK PUCHASE CORPORATION V PURIFICATION TECHNIQUES (NIG) LTD (2013) 7 NWLR (prt.1352) 82 at 113 to the effect that a necessary party is someone whose presence is essential for the effectual and complete determination of issue before the Court.

On the appellants’ contention that no issue of certificate was canvassed, learned counsel for the respondents submitted that issues already pleaded and admitted by implication need no further proof relying on Section 123 of the Evidence Act.

It was submitted that in their joint statement of defence, the appellants have not denied that they neither recognize the 1st appellant as family head of Nung Utigha nor awarded him a certificate Exhibit 6 and thus the trial Court has inherent jurisdiction to declare the act of the 2nd appellant ultra vires. He referred to Sections 19 and 28 of the Akwa Ibom State, Traditional Ruler’s Law.

Counsel further submitted that family headship in

Ibiono Ibom situates in the province of family members and is regulated by the custom and tradition of the particular family. And having led evidence of the said custom, the trial Court was entitled to take judicial notice of its existence pursuant to Section 16 (1) and 17 of the Evidence Act.

I have stated that this appeal will be determined on the bases of the four issues nominated by the appellants but considering the oneness of the first three issues, same will be condensed into a single issue as paraphrase by me. That being the case, the issues for determination are now reduced to two that is –
1. Whether the findings of the trial judge was reverse?
2. Was the learned trial judge right in assuming jurisdiction over the 2nd, 3rd, 4th and 5th appellants?

The starting point is the jurisdiction of the Court over the 2nd, 3rd, 4th and 5th appellants for the obvious reason that the issue on capacity to sue or been sued is also a threshold issue which must be taken and determined at the earliest opportunity. The appellants’ main contention here is that there was no evidence before the trial Court showing that the 2nd – 5th

appellants are members of Nung Utigha family except the evidence of pw1 who merely stated that the 2nd appellant issued the 2nd appellant a certificate of recognition upon the prompting of the 3rd – 5th appellants. It was also the appellants’ contention that by the respondents’ pleadings, the 2nd – 5th appellants were said to have acted as paramount Rulers of Ibiono Ibom Local Government Area but sued in their private capacities for something allegedly done in their official capacities. The pertinent question here – are the 2nd – 5th appellants necessary parties to the suit before the trial Court whose presence is essential for the effectual and complete determination of the issues before the Court? A necessary party is someone whose presence is essential for the effectual and complete determination of the issues before the Court. He is a party, in the absence of whom the whole claim cannot be effectually and completely determined.

The substratum of the claim against the 2nd – 5th appellants at the trial Court was that they have no power to breach and violate the customs and tradition of Nung Utigha family of Ikot Usen

Ibiono Ibom Local Government Area of Akwa Ibom State in the selection of 1st appellant being the third in the hierarchy of the family as such the respondents prayed that same be declared null and void. In paragraphs 6 – 14 of the statement of claim at pages 6 – 74 of the record of appeal, the respondents as plaintiffs averred as follows:-
6. The custom and tradition of Nung Utigha family is that upon the demise of the family head, the most senior member of the family ascends the throne.
7. The 1st plaintiff is the most senior person in Nung Utigha family and eminently qualified to be the family head.
8. The first defendant is the third person in the line of seniority in Nung Utigha and therefore not qualified to be elected or appointed family head, Nung Utigha.
9. The 1st defendant is not only qualified by reason of seniority but lacks the requisite character to lead as family head. The 1st defendant was suspended from the activities of the family on the 8th December, 2012 copy of the letter of suspension of the 1st defendant is hereby pleaded.
10. The 2nd defendant without recourse to the family and in letter neglected and

disregard to the native law and custom of Nung Utigha, Ikot Usen and Ibiono Ibom, relying on the advice and recommendation of the 3rd, 4th and 5th defendant’s purportedly recognized the 1st defendant issued him with a certificate of recognition in the manner exhibited to this suit.
11. The 2nd defendant in the bid to impose the 1st respondent on the plaintiffs refused, neglected and failed to adhere to the yawning of the plaintiffs despite repeated petition to enlighten the 2nd defendant. The plaintiffs hereby pleads the letters dated 30/6/2012, 10/11/2012, 27/6/2012, variously addressed to the 2nd defendant on the above subject matter.
12. The plaintiffs aver that in Nung Utigha family, the under-listed persons were family heads in their seniority:
1. Chief Udofia Udo Antia
2. Chief Akpan Udofia Udo Antia
3. Chief Edet Udofia Udo Ntia
4. Chief Etim Udofia Udo Antia
5. Chief Udofia Udo Antia.
13. The plaintiffs aver that the 1st defendant is the third in the line of seniority, 1st plaintiff being the 1st, seconded by Rev. Emediong Etim Antia before the 1st defendant; the 1st defendant is aged about 50 years while

1st plaintiff is 68 years old. No person was ever elected by any incumbent in office to take over family headship.
14. Despite the apparent deficiencies of the 1st defendant, the 2nd defendant without any 10 percent of authority and statutory backing illegally manufactured a certificate of recognition, issued same to the 1st defendant who parades and by force of curse enter family property and exercise control and management without the consent of the plaintiffs relying on the illegal certificate of recognition issued by the 2nd defendant.

proceedings but also who in their absence, the proceedings could not be fairly dealt with. In other words, the question to be settled in the action between the existing parties must be a question which cannot be properly settled unless they are parties to the action instituted by the plaintiff. See also F.H.A. V OLAYEMI (2017) LPELR – 43376.

The main purpose of the respondents’ suit at the trial Court was to invalidate the recognition of the 1st appellant done by the 2nd appellant through the collaboration of the 3rd – 5th appellants. In GREEN V GREEN (Supra), the Supreme Court per Oputa JSC at page 480 maintained that in order to decide the effect of non-joinder or even mis-joinder of a party, the Court should ask itself the following questions:-
(a) Is the cause or matter liable to be defeated by non-joinder?
(b) Is it possible to adjudicate on the cause or matter unless the 3rd party is added as a defendant?
(c) Is the 3rd party a person whose presence before the Court as a defendant will be necessary in order to enable the Court to effectually and completely adjudicate or settle all the questions involved in the cause or matter.

To determine the propriety or otherwise of the certificate of recognition given to the 1st appellant by the 2nd – 5th respondents completely it thus, entails joining the 2nd – 5th respondents as parties to this suit. In other words, they are necessary parties whose absence, the proceedings could not be fairly dealt with. I resolved this issue in favour of the respondent.

The appellants’ complaint on the first issue as challenged is that there is no evidence to support the decision of the trial judge and no reason was given to support the reliefs granted to the respondents and that the decision of the trial Court is a perverse decision.

What is then a perverse finding of the Court? A perverse finding is a finding of facts which is merely speculative and not based on the pleadings and evidence before the Court or where Court has drawn wrong inference from the evidence before it thereby occasioning a miscarriage of justice. See IWUOHA V NIPOST LTD (2003) 1 NWLR (prt.822) 308, and OVERSEAS CONSTRUCTION COMPANY (NIG) LTD V CREEK ENTERPRISES (NIG) LTD (1985) 3 NWLR (prt.13) 407.

In his brief of argument, learned Counsel for the appellants at page 5 thereof states as follows:-
“The respondents did not tender the certificate allegedly issued to the 1st appellant by the 2nd appellant. The learned trial judge did not see that certificate or any other certificates issued by the 1st or 2nd appellant.”
He continued:
“Counsel for the respondents did not mention any word in his final address concerning the certificates issued by the 2nd claimant and their validity … Counsel for the appellants did not do so either. Inspite of the foregoing, the learned trial judge in his judgment granted claims Nos. 2 and 3 in the respondents’ writ of summons and statement of claim. Throughout the judgment, learned trial judge did not state the reason and basis for granting claim 2 and 3 of the respondents.”

judge is borne out from the evidence in Court, an appellate judge cannot interfere. In other words, an appellate judge cannot interfere in such a circumstance, even if he comes to the conclusion that he should have evaluated the evidence of the witness differently, in the absence of a perverse evaluation.
However, where the evaluation of the evidence by the trial judge is perverse in the sense that it is not properly borne out from the evidence before him, an appellate judge is competent to re-evaluate the evidence on the records before him and come to a proper decision. See IWUOHA & ANOR V NIPOST LTD & ANOR also reported in (2003) LPELR – 1569 (SC).

It is also pertinent to state at this juncture that in their statement of defence particularly in paragraph 29 thereof, the respondents averred that the 1st defendant now respondent is the duly recognized family head of Nung Utigha with the approval of Nung Utigha Family, Ikot Usen village and Ibiono Ibom Clan. Thus, the issue of who amongst the 1st appellant and 1st respondent was duly recognized family head of Nung Utigha was properly joined by the parties at the trial Court.

By virtue of the provisions of Section 136 of the Evidence Act, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence unless it is provided by any law that the proof of that fact shall lies on any particular person, but the burden may in the course of a case be shifted from one side to the other.

The evidence of the respondents before the trial Court is that the family head must be the oldest male member of the family while the appellants evidence on the other hand is that though senior members of the family is given priority in the selection of family head but such senior member must be a person of good repute, character and integrity.

After reviewing the evidence adduced by both parties, learned trial judge found at page 183 of the record of appeal as follows:-
“I had earlier stated in the judgment that the claim of the plaintiff is founded on customary law. Moreover, the subject matter in dispute in the instant action is governed and regulated by the native law and custom of the people. Evidence of witnesses referred to what is obtainable in their customary practice. Therefore,

the law is very settled that documents are alien to transactions under Native Law and Custom or Customary Law.”
At page 185 of the record of appeal, learned trial judge also found that:-
“The 1st defendant, who had not counter-claimed against the plaintiffs, has not stated the circumstances of his selection as the family head of Nung Utigha family as he is alleging. I do not see any shred of evidence from another member of Nung Utigha family confirming that the 1st defendant had ever been selected the Head of the Family. Witnesses to both parties have confirmed that selection of family head is an exclusive affair of the affected family. Dw1 in cross examination also confirmed that the family concerned in accordance with the custom of the family usually does the selection of family head.
He concluded thus:-
“Therefore, the intrusion of 2nd, 3rd, 4th and 5th defendants in the exclusive family affairs of Nung Utigha family by lending their support to the excessive ambition of the 1st defendant is ultra vires their statutory function and I condemn it in a very strong terms. The decision of Ibiono Ibom Clan Council in Exhibit

“10” to say the least, amount to an infringement of the Fundamental right of the 1st plaintiff.”

Did appellants in the present case show that the above decision is not supported by evidence or that there is apparent or substantial error capable of occasioning a miscarriage of justice? I do not think so, as it is not every error committed by the trial Court that would result in the appellate Court allowing the appeal. Suffice it to say that the learned trial judge has demonstrated in full a dispassionate consideration of all the issues properly raised and heard. There is a clear resolution of all issues that arose and thus the verdict flows logically from the facts and law. In other words, the judgment of the trial Court is not perverse. This issue is also resolved in favour of the respondents.

In conclusion and from the foregoing, this appeal lacks merit and it is accordingly dismissed. I hereby affirmed the judgment of the lower Court.
Appeal dismissed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by brother MUHAMMED L. SHUAIBU, JCA.

I agree with the reasoning and conclusion reached in the judgment.
I also say that the appeal lacks merit and accordingly dismissed by me.

JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother, Muhammed L. Shuaibu, JCA and I agree that this appeal is unmeritorious and should be dismissed.

I dismiss the appeal and affirm the judgment of the Court below.

Appearances:

Francis Ekanem, Esq. For Appellant(s)

Grace Nwagu, Esq. For Respondent(s)