ETUBOM EKPO OKON ABASI OTU & ANOR v. ETUBOM (DR.) ANTHONY ASUQUO ANI & ORS (2013)

ETUBOM EKPO OKON ABASI OTU & ANOR v. ETUBOM (DR.) ANTHONY ASUQUO ANI & ORS

(2013)LCN/6263(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 4th day of June, 2013

CA/C/97A/2012

RATIO

EVIDENCE: WHETHER DOCUMENTARY EVIDENCE NEED BE SPECIFICALLY PLEADED

WHETHER A COURT MAY GRANT A RELIEF NOT CLAIMED BY THE PARTIES

WHETHER A COURT MAY RAISE AN ISSUE FOR DETERMINATION SUO MOTU

Another settled principle of law is that where in the determination of a case based on pleadings, a court finds it necessary to raise an issue outside the case put forward by the parties in their pleadings, the parties should be afforded the opportunity of a hearing on such an issue before the court uses and relies on it to decide the case. This requirement is in line with the principle of fair hearing guaranteed the parties in the determination of their civil rights and obligations by a court of law, under the constitution. See Ishola v. UBN Ltd. (2005) 2 SC (Pt. II) 80; Omokhodion v. FRN (2006) All FWLR (Pt. 292) 1; Habib Nig. Bank v. Nashtex International Nig. Ltd. (2006) All FWLR (Pt. 326) 311. In the recent case of Effiom v. Cross River State Independent Electoral Commission (2010) 14 NWLR (Pt. 1213) 106 at 133, the Supreme Court had put the position thus:
“It is wrongly for a court to raise an issue of fact suo motu and decide upon it without giving the parties an opportunity to be heard on it. This is so because the court is bound by and therefore confined to the issues raised by the parties. Thus, where the court raises an issue suo motu which it considers material for the proper determination of the case, it must give the parties, particularly the party likely to be adversely affected by the issue, and opportunity to be heard.”PER MOHAMMED LAWAL GARBA, J.C.A.

JUSTICES

MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria

UZO I. NDUKWE-ANYANWU Justice of The Court of Appeal of Nigeria

ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria

Between

1. ETUBOM EKPO OKON ABASI OTU
2. ETUBOM OTU EFA OTU
(For themselves and representing the EFIK IBOKU ESIT EDIK TRADITIONAL COUNCIL) Appellant(s)

AND

1. ETUBOM (DR.) ANTHONY ASUQUO ANI
2. ETINYIN OKON EFFIONG OFFIONG ? CHAIRMAN
3. CHIEF OFFIONG EYO OFFIONG
4. CHIEF EMMANUEL ENIANG OFFIONG
5. MR. ANTHONY ENIANG OFFIONG ? SECRETARY
(For themselves and on behalf of UFOK IKOT NKPOR CLAN, MBIABO IKONETO, ODUKPANI LOCAL GOVERNMENT)

AND

6. ETUBOM ESSIEN EKPENYONG EFIOK
7. ETUBOM OKON ASUQUO
8. ETUBOM MICAH ARCHIBONG
(For themselves and representing ETUBOM TRADITIONAL RULERS COUNCIL, OBONG’S PLACE) Respondent(s)

MOHAMMED LAWAL GARBA, J.C.A. (Delivering the leading judgment): This appeal is from decision of the High Court of Cross River State, Calabar in Suit No. HC/102/2008 delivered on the 30th January, 2012 in which the following orders were made:
“1. A declaration that the presentation and/or selection of the 4th defendant, who was Chairman of the Screening Committee for the selection of a candidate for the stool of Obong of Calabar, as a candidate for the Obong of Calabar throne or purported selection of the 4th defendant as the Obong of Calabar elect is contrary to natural justice, equity and good conscience.
2. A declaration that the purported selection of the 4th defendant as the Obong of Calabar-elect, who is from Adiabo is contrary to the decision of the Western Calabar Traditional Rulers Council that Ikoneto has the exclusive right to produce the next Obong of Calabar.
3. A declaration that the 1st – 5th defendants are estopped from reneging from the decision that it is the turn of Western Calabar and Ikoneto in particular to produce the next Obong of Calabar.
4. A declaration that the 4th defendant (Etubom Ekpo Okon Abasi Otu) is not qualified to be selected and/or appointed, the Obong of Calabar and accordingly his purported selection/screening/election and appointment as Obong of Calabar are hereby set aside.
5. An injunction restraining the 1st – 5th defendants from selecting or purporting to select any person as Obong of Calabar, contrary to the agreement that it is the turn of Ikoneto to produce the Obong.
6. An injunction restraining the Etubom Traditional Council either by themselves, their servants, hirelings, agents, privies or however from carrying out any contest for the selection of a new Obong of Calabar without the participation of Ikoneto or it candidate (the 1st Claimant).
7. The 4th defendant is hereby restrained either by himself, his servants, agents or privies from representing or further representing himself to the general public as Obong of Calabar.”
Appellants and the 2nd set of Respondents were sued by the 1st set of Respondents in which they made claims as follows:
“(a) A declaration that the presentation and/or selection of the 4th defendant, who was Chairman of the Screening Committee for the selection of candidate for the stool of Obong of Calabar, as a candidate for the Obong of Calabar throne or purported selection of the 4th defendant as the Obong of Calabar elect is contrary to natural justice, equity and good conscience.
(b) A declaration that the purported selection of the 4th defendant as the Obong of Calabar-elect, who is from Adiabo is contrary to the decision of the Western Calabar Traditional Rulers Council that Ikoneto has the exclusive right to produce the next Obong of Calabar.
(c) A declaration that the 1st – 5th defendants are estopped from reneging from the decision that it is the turn of Western Calabar and Ikoneto in particular to produce the next Obong of Calabar.
(d) A declaration that the 4th defendant is not qualified to be selected and/or appointed the Obong of Calabar,
(e) A declaration that the Etuboms’ Traditional Rulers Council of the Obong’s Palace refusal to entertain the complaint of the Plaintiffs violated their right to fair hearing.
(f) An injunction restraining the Government from according recognition and/or giving staff of office to the 4th defendant.
(g) An injunction restraining the 1st – 5th defendants from selecting or contesting, or purporting to select any person as the Obong of Calabar, contrary to the agreement that it is the turn of Ikoneto.
(h) An order setting aside the purported selection, screening and appointment of the 4th defendant as the Obong of Calabar.”
The facts which led to the suit as given by the 1st set of Respondents are that in the process of the selection and appointment of new Obong of Calabar, the Etuboms’ Council of the Palace of the Obong of Calabar had written to the Western Calabar Traditional Rulers Council, whose turn it was to produce the next Obong, to nominate candidates from Ikoneto to which the right to the Obongship was said to have been ceded, by agreement, for the exercise. That the 1st Respondent was presented from Ikoneto to the Western Calabar Council, chaired by the 1st Appellant with the 2nd Appellant as Vice Chairman which invited him for screening. That the 1st Respondent was screened along with one other candidate on the day he appeared and he was successful and accepted as the candidate for the stool of the Obong from Western Calabar. While waiting to be presented by the Western Calabar Council to the Etuboms’ Council of the Obong’s Palace, it was discovered that the 1st Appellant who presided over the 1st Respondent’s screening had turned, surreptitiously and presented himself as the sole candidate to the Etuboms’ Council for the stool of the Obong contrary to the agreement in Western Calabar Council. The 1st Appellant was eventually selected and proclaimed the new Obong of Calabar by the Etuboms’ Council of the Obong’s Palace.
Being aggrieved by the orders of the High Court, the Appellants caused a Notice of Appeal to be filed against the decision, on the 7th February, 2012. The Notice of Appeal contains seventeen (17) grounds from which eight (8) issues were formulated in the Appellant’s brief filed on the 14th but deemed on the 15th January, 2013 as follows:
“1. Whether, the learned trial Judge was right in holding that, the requirement that for an Etubom of a recognized Efik Ruling House to qualify to contest for the Obongship Stool, he must have been capped and induced by a reigning Obong of Calabar, could be waived, and was indeed waived for the 1st Respondent herein. (Raised from Ground 2 of Notice of Appeal).
2. Whether, there was evidence of an agreement between the Ruling Houses in Western Calabar before the trial Judge which led the trial Judge to arrived at conclusion that “… having agreed to cede the right to produce the Obong of Ikoneto, and having not rejected the candidate duly presented by Ikoneto, the Western Calabar Traditional Rulers Council had no right looking elsewhere for candidate…” and thereafter restrained the Appellants and the 2nd set of Respondents herein from selecting or purporting to select any person as Obong of Calabar contrary to the agreement that it the turn of Ikoneto to produce the Obong of Calabar, when the act restrained had been completed. (Raised from Grounds 3, 4, 7, 10 and 11 of Notice of Appeal).
3. Whether based on the pleadings and evidence before the trial Court, the trial Judge was right in reaching the decisions and/or conclusions that:
(i) There was no evidence that the 1st Respondent was not acceptable and/or rejected for the Obongship Stool.
(ii) There was no evidence that Ikoneto presented any other candidates other than the 1st Respondent for the contest for Obongship Stool, and
(iii) There was no evidence that Western Calabar Traditional Council wrote to the other Ruling Houses (Creek Town were the 6th Respondent comes from and Adiabo where the 1st Appellant comes from) or that their Ruling Houses presented them as candidate for the contest for the Obongship Stool. (Raised from Ground 9 of Notice of Appeal).
4. Whether the trial Judge had jurisdiction to grant injunctive reliefs not sought nor claimed by the 1st set of Respondents, in their Amended Statement of Claim, moreso as the said injunctive reliefs were granted after the acts restrained had been completed. (Raised from Grounds 5 and 6 of the Notice of Appeal).
5. Whether by the traditional requirements to be met by an Etubom before vying for the Obongship Stool as codified in Exhibit “1/20” and recommended in Exhibit “14A”, and the evidence before the trial Court, it was the 1st Respondent herein and not the 1st Appellant who was traditionally qualified under the traditions and customs of the Efiks to be proclaimed and crowned the Obong of Calabar, (Raised from Grounds 8, 12, 16).
6. Whether by the evidence before the trial Court, it was right for the trial Judge to hold that, the 1st Respondent was not given a fair hearing, and concluded that, “bias or real likelihood of bias will always be imputed where as in this case a member of a supervising or nominating body in a selection process turns round to himself be a nominee for the position.” (Raised from Ground 13).
7. Whether the trial Judge was right in refusing to admit in evidence:-
(a) The Attendance Register of the Etuboms’ Council Palace of Obong of Calabar from 2006-2008; and
(b) Certified True Copy of Court process in Suit No.FHC/C/M42/2010 as evidence in support of the Appellant’s case that, the 1st Respondent is not qualified for the Obongship Stool. (Raised from Grounds 14, 15),
7. Whether the whole judgment of the trial Court is not against the weight of evidence. (Raised from Ground 17).”
In the 1st – 5th Respondents’ brief filed on the 11th February, 2013 an objection to the competence of the Appellants’ ground 1 was raised and argued although other grounds of the appeal were mentioned in the objection. The following issues were submitted for determination in the appeal:
“1. Whether from the totality of the pleadings and evidences before the trial Court it was right to hold that the 1st Respondent was qualified to vie for the throne of Obong of Calabar and that the 1st Appellant was not qualified to vie for the Stool of Obong of Calabar (Grounds 2, 3, 4, 6, 7, 8, 9, 10, 11, 12, 16, 17).
2. Whether the trial Judge was right when it held that the 1st Respondent was not given fair hearing (Ground 13).
3. Whether the learned trial Judge granted reliefs not sought by the 1st to 5th Respondents and whether the rejection of inadmissible evidence marked “Rejected was right (Grounds 5, 6, 14 and 15).”
The Appellants had filed a Reply brief on the 9th April, 2013 which was deemed at the oral hearing of the appeal on the 15th April, 2013.
There is no record that the 2nd set of Respondents had filed a brief in the appeal.
Chief Ladi Williams, SAN, leading Rebecca Tanga (Miss) for the Appellants, adopted the Appellant’s brief and Reply settled by him, at the hearing and urged us to allow the appeal, set aside the judgment of the High Court and grant the reliefs sought by the Appellants.
Mr. Joe Agi, SAN, led E. Sani, Esq. and Bassey Offiong, Esq. for the 1st set of Respondents and adopted the brief settled by him urging us to dismiss the appeal. He said the Appellants’ Reply did not answer any new points raised in this brief but only repeated arguments in the Appellants’ brief and urged us to discountenance it. The learned silk cited Section 287(2) of the Constitution and the case of Osuji v. Isinocha (2009) 16 NWLR (Pt.1166) 81 at 100 and 107 and Fayemi v. Oni (2010) 10 NWLR (Pt.1202) 412 at 427 on the submission.
Mrs. Nella Anden Rabana, SAN, leading U. A. Eba, Esq., Asuquo Attih, Esq. and Eno Edet, Esq., appeared for the 2nd set of Respondents and confirmed that they did not file a brief in the appeal but they align themselves with the submissions of the Appellants.
The learned Senior Counsel for the 1st – 5th Respondents had moved the objection raised in his brief and I would as required by practice, deal with it first.
The ground upon the objection was predicated is that:
“1. Ground 1 did not arise from the judgment of the trial Judge.”
It was submitted that the issue of the 1st – 5th Respondents not exhausting the local remedy provided by the Constitution of Etuboms’ Council, 2002, Palace of Obong of Calabar, Exhibit “1/20”, was not canvassed before the High Court and not decided by it. That the court’s jurisdiction is circumscribed to reviewing issues dealt with in the judgment and not outside it. In further submission, the learned silk said if the Appellants’ desired to raise same, they ought to have sought and obtained leave failing which the ground becomes incompetent, relying on Omega Bank Nig. Plc v. O.B.C. Ltd. (2005) 1 NWLR (Pt. 928) 547 at 580. We were urged to strike out the ground.
The learned Senior Counsel for the Appellants had in the Appellants’ Reply pointed out that the Appellants did not formulated any issue from Ground 1 of the Notice of Appeal as can clearly be seen from the issues formulated in the Appellants’ brief. In the circumstance, the said ground is deemed abandoned by the Appellants and should be struck out, citing Ojoh v. Kamalu (2005) 18 NWLR (Pt. 958) 523 at 543 an C.P.C. v. INEC (2011) 181 NWLR (Pt. 1279) 493 at 570. The objection was said to go no issue, as a result.
The learned silk for the Appellants has said all that is necessary in respect of the objection and I agree with him completely. Since the ground to which the objection was taken has in law been abandoned by the Appellants because no issue was distilled from it for determination in the appeal, the wind has been taken out of the sail of the objection. It is no longer of moment and since it has been argued, it is dismissed.
I now go to the issues formulated by the learned Senior Counsel for the parties as set out above. From a calm reading of the issues by both learned silk, it appears that the substance is the same and they only differ in the style of the formulation as all the issue by the learned SAN for the Appellants are subsumed in the ones framed by his brother silk for the 1st – 5th Respondents.
For being specific on the complaints against the judgment appeal against and derivable from the grounds of the appeal, I would use the Appellants’ issues which have been addressed in the 1st – 5th Respondents’ brief, in the determination of the appeal.
ISSUE 1:
The Appellants’ submissions on the issue are that the Constitution of the Etuboms’ Council of the Obong of Calabar, admitted in evidence as Exhibit “1/20” at the trial, governs the nomination, selection and installation of the Obong of Calabar. That Exhibit “1/20” also governs and regulates the Efik customs and traditions in the process of presentation, screening, capping, induction/taking and signing of Oath of an Etubom of a recognized Efik Royal/Ruling houses either from Western or Central Calabar, as an Etubom in the Etuboms’ Council of the Palace of the Obong of Calabar. It was then submitted that the requirement of capping an Etubom by a reigning Obong or induction into the Etuboms’ Council of the Palace of the Obong as a qualifying factor for vying for the Obongship Stool is clearly stated in Articles 5, 30(a) and 33(2) of Exhibit “1/20”. The letter dated 3rd February, 2008, from the 1st – 5th Respondents to the Western Calabar Council to present the 1st Respondent; their Etubom, to the Etuboms’ Council of the Palace of the Obong which was admitted in evidence as Exhibit “22”, was said to be in compliance with Articles 30(a) and 33(3) of Exhibit “1/20”. Further, that Exhibit “4/16”, a letter dated 24th March, 2008 again from the 1st – 5th Respondents, to the Etuboms’ Council of the Obong’s Palace establishes that the 1st – 5th Respondent clearly were requesting for a date from the Etuboms’ Council for the capping/induction into the Council of the 1st Respondent. It was the further submission of the Appellants that the letter dated 28th March, 2008, a protest from the 1st – 5th Respondents to the Chairman of the Etuboms’ Council in which they narrated the request in Exhibit “4/16” along with Exhibit “22” show that the 1st – 5th Respondents were seeking to comply with the requirements which will enable the 1st Respondent to be eligible to vote and be voted for in the selection process of the Obong of Calabar. Exhibit “5/17” was referred to and it was contended that there was no evidence before the High Court that the requirement of capping/induction into the Etuboms’ Council by a reigning Obong as a qualifying factor for vying for the stool of the Obong could be waived and was indeed waived for the 1st Respondent in the selection process of the Obong. The evidence of Cw1, a member of the Etuboms’ Council of the Palace of the Obong, under cross examination at page 391 of the record of appeal and that of 1st Respondent as Cw2 at page 399 was referred to and it was argued that it was a confirmation and admission that the requirement of capping by an Obong is fundamental. It was also the case of the Appellants that the evidence of 1st Respondent that he needed not to be capped because he merely replaced an Etubom capped by the Obong even though he was not inducted into the Etuboms’ Council, was a distortion of the Efik customs and traditions as codified in Exhibit “1/20”. The learned SAN for the Appellants argued further that the evidence of the 1st Respondent is extraneous to Exhibit “1/20” and cannot be used to contradict its content which are more authentic than the ipse dixit of the 1st Respondent, placing reliance on Section 128(1) of the Evidence Act, 2011 and Ogundele v. Agiri (2009) 18 NWLR (Pt. 1173) 219 at 239. In addition, he submitted that from the evidence and pleadings of the parties before the High Court, the issue of the waiver of the requirement of capping and induction was never raised and that it was the High Court that raised the issue suo motu in its judgment and decided it without hearing the parties or their Counsel on the issue. The cases of Olufeagba v. Abdul-Raheem (2009) 18 NWLR (Pt. 1173) 384 at 437; Ogundele v. Agiri (supra) at 245, 248-249 and Oyekanmi v. NEPA (2000) 15 NWLR (Pt. 690) 414 at 439 were cited for the submission and it was pointed out that the law is trite that all parties and the Court are bound by the pleadings and evidence they placed before the court which has no power to make out a case outside thereof. Inter alia, the cases of Skye Bank Plc v. Akinpelu (2000) 9 NWLR (Pt. 1198) 179 at 194 and Ogundare v. Ogunlowo (1997) 6 NWLR (Pt. 509) 360 at 370 were relied on the position.
The learned SAN for the 1st – 5th Respondents in his submissions on the issue had referred to paragraph 17 of their Counter-affidavit at page 353 of the record of appeal, the ruling of the High Court at page 357 in which it was said to have alluded to waiver and his address at pages 522-524 of the record of appeal, where the issue of waiver was said have been adequately canvassed and argued that the High Court could not be accused of raising the issue of waiver suo motu. He cited the case of Enekwe v. I.M.B. Nig. Ltd. (2006) 19 NWLR (Pt. 1013) 146 at 173 and urged us to hold that the High Court did not raise the issue of waiver suo motu. He then contended that the finding by the High Court at page 574 of the record of appeal to the effect that the conduct of the Appellants in inviting and screening the 1st Respondent as a candidate for the Obongship at the Western Calabar Traditional Council, amounted to waiver, cannot be faulted. The case of Orakol Resources Ltd. v. N.C.C. (2007) 16 NWLR (Pt. 1060) 270 at 311 was referred to by the learned Senior Counsel who also said that Exhibit “1/20” is a private document which has no statutory backing and its provisions or application can be waived by the operators. That the Appellants had waived the provisions in words and conduct by inviting, screening and putting up; the 1st Respondent for the stool of the Obong, citing Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt. 105) (No page provided) on the right of a private association to provide a constitution to regulate its affairs.
In the Reply brief of the Appellants it was submitted in respect of the issue that the ruling of the High Court referred to by the learned SAN for the 1st – 5th as alluding to the issue of waiver did not form any of the grounds relied on by that court in the finding that the requirement of capping and induction of an Etubom into the Etuboms’ Council of the palace of the Obong by a reigning Obong as a qualifying factor could be waived and was indeed waived for the 1st Respondent in the judgment appealed against.
In the alternative, it was submitted that if the 1st – 5th Respondents desired that the Ruling of the High Court which is not part of the judgment appealed be used to sustain the judgment, they ought to have filed a Respondents’ notice under Order 1 rule 2 of the Court of Appeal Rules, 2011, relying on Williams v. Daily Times (1990) 1 NWLR (Pt.124) 1; Ozigbo v. PDP (2010) 9 NWLR (Pt.1200) 601 at 631. In addition, it was argued that the 1st – 5th Respondents require leave as an exception under Order 1 rule 3 of the Rules of the Court since they seek to support the decision by the High Court on ground not relied upon by it and C.P.C. v. Lado (2011) 14 NWLR (Pt. 1266) 40 at 81 was cited on the position. In the absence of a Respondents’ notice or leave of Court, we were urged to discountenance the submissions by the 1st – 5th Respondents on the point. The other arguments in the Reply on the point are clearly further submissions made to the ones made in the Appellants’ brief. A Reply brief by an appellant provided for by Order 18 Rule 5 of the Court of Appeal Rules, 2011 is to deal with all new points arising from the Respondent’s brief and is not to proffer further arguments on points already argued in the appellant’s brief. See Akpala v. Ibeme (1989) 2 NWLR (Pt. 102) 208; Umeji v. Attorney-General, Imo State (1995) 4 NWLR (Pt. 391) 552 at 593; Osuji v. Ekeocha (2009) 7 MJSC (Pt. II) 74.
I would decide this issue before proceeding to review the submissions by the learned Senior Counsel for the parties on the other issues.
The point whether the issue of waiver was raised suo motu and decided by the High Court in the judgment appealed against without hearing the parties, is the appropriate starting line. The learned SAN for the Appellants is quite right, for the law is firmly established, that:
“(a) That the parties in a case and the court before which they take the case for determination, are bound by the pleadings and evidence placed by them before the court in the case. See Commissioner for Works, Benue State v. Devcon Development Consultants Ltd. (1988) 7 SCNJ 1; Ekpezu v. Ndem (1991) 6 NWLR (pt.126) 299; Ogundele v. Agiri (supra); Nsirim v. Owema C.C.N. Ltd. (2001) 3 S.C. 108 at 177.
(b) That the court has no power to make out a case outside the pleadings and evidence placed before it by the parties for either of them. Any decision by a court based on issue(s) not raised by the pleadings and evidence of the parties will not be allowed to stand. See Idika v. Irisi (1988) 5 SCNJ 208; Commissioner for works, Benue State v. Devcon Development Consultants Ltd. (supra); Iheanacho v. Chigere (2004) 7 SC (Pt. II) 49; Ekeocha v. Osuji (2002) FWLR (Pt. 105) 774 at 778;

The apex Court then immediately after the above statement of the law, set out an exception to the principle stated therein when it said:
“However, the principle that the court ought not to raise an issue suo motu without hearing from the parties applies mainly to issues of fact. In some special circumstance, the court can raise an issue of law or jurisdiction suo motu and decide upon it without hearing the parties before it.”
In addition, the apex Court concluded that:
“While the court has a duty to give the parties an opportunity to be heard on any issue it raises suo motu, a failure to do so does not necessary lead to a reversal of its decision. To warrant an appellate Court’s reversal of the decision, the appellant must go further to show that the failure to hear him on the point occasioned some miscarriage of justice, Imah v. Okogbe (1993) 9 NWLR (Pt. 316) 156; Olubode v. Salami (1985) 2 NWLR (Pt. 7) 282.”
The principles enunciated by the apex court in the above case, in brief, are that:
“(i) That it is wrong in law for a court to raise and decide an issue suo motu without affording the parties, particularly the party to be adversely affected by the decision on the issue, a hearing on the issue;
(ii) That the requirement in (i) above applied mainly to issues of fact;
(iii) That issue of law or jurisdiction, in special circumstance, can be raised and decided by the court suo motu without hearing the parties; and
(iv) That failure to hear parties on an issue (whether of fact, law or jurisdiction) raised and decided suo motu by a court, does not necessarily lead to a reversal of its decision unless some miscarriage of justice was occasioned to the appellant. See also Mora v. Nwalusi (1962) All NLR 681; Atoyebi v. Gov., Oyo State (1994) 5 SCNJ 62 at 84; Ibrahim v. JSC Kaduna State (1998) 14 NWLR (Pt.584) 1; Ogembe v. Usman (2011) 17 NWLR (Pt. 1277) 638 at 656.”
I have read the 24 paragraphs contained in the 1st – 5th Respondents’ Amended Statement of Claim which appears at pages 17-22 of the record of appeal and apparently the issue or fact of the waiver of the named requirement was not mentioned or stated therein. There are no pleadings which directly aver that the requirement of capping of an Etubom by the Obong of Calabar and induction into the Etuboms’ Council of the Palace of the Obong, as a qualifying factor for eligibility to vie for the stool of the Obong of Calabar, was waived by and in favour of any party in the processes of selection of candidates for appointment to the stool of the Obong.
The word “waiver” has been judicially defined in many decisions by the apex Court as follows:
“Waiver is the intentional or voluntary relinquishment of a known right or such conducts as warrants an inference of the relinquishment of such right. It is the renunciation, repudiation, abandonment or surrender of some claim, right, privilege or of the opportunity to take advantage of some defect, irregularity or wrong,”
per Fabiyi, JSC in the case of Olufeagba v. Abdul-Raheem (supra) at page 438; paragraphs C-D.
In the earlier case of Ariori v. Elemo (1983) NSCC 1 at 8, the apex Court per Eso, JSC had discussed the nature of waiver thus:
“——page 88-89 of (2005) 12 SC (Pt. II) ——-
Then in the case of Bank of the North Ltd. v. Yau (2001) 5 SC (Pt. 1) 121; (2005) SCNJ 168 at 192; Karibi-Whyte, JSC had stated what constitutes a waiver, thus:
“It is well settled that waiver is an abandonment of a right. Two elements must co-exist to constitute waiver. First the party against who the doctrine is invoked must have knowledge or be aware of the act or omission which constitutes the waiver and secondly, there must be on the part of the person against who the doctrine is invoked, some unequivocal act adopting or relinquishing the act or omission. See Olatunde v. Obafemi Awolowo University (1998) 4 SC 91; (1998) 5 NWLR 178.”
See also Eze v. Okechukwu (2002) 12 SC (Pt. 11) 103; (2002) 12 SCNJ 258 at 271; Caribbean Trad. & Fidelity Corp. v. NNPC (1992) 7 NWLR (Pt. 252) 161 at 185; African Pet. Ltd. v. Owodunni (1991) 8 NWLR (Pt. 210) 391; Auto Import Export v. Adebayo (2005) 12 SC (Pt. II) 74.
In the premises of the above definitions by the apex Court, the principle of waiver is clearly, one which arises and applies in respect of a right that is personal or private to the party against whom it was raised, either vested and acquired by way of a contract or by virtue of statutory provisions. It is a right which accrues in favour of a party either by agreement between him and others or under the provisions of law, statute or other instruments enforceable under the law. It is a private and personal right that is exclusive to the party over which he had the unfettered control and discretion to either claim it as and when one or due or deliberately and freely abandon, relinquish, ignore, dispense with or surrender expressly or by his conduct. Where the right is not exclusive but is shared along with other parties in an agreement or with members of the public under a statute, then a party cannot effectively either expressly or by conduct, surrender or abandon what does not belong to him and what he has no control over. A party cannot waive such a right in law in line with description of the principle in the above cases.
In the case of the 1st – 5th Respondents, what they pleaded in their paragraphs 16, 17 and 18 of the Amended Statement of Claim and paragraphs 7 and 21 of the 1st Respondent’s statement on Oath as well as paragraphs 5, 6, 7, 8, 9 and 10 of statement of on Oath of the Etubom Eniang Essien who testified as Cw1 at the trial, was that the 1st Respondent was invited by the Western Calabar Council after he was presented to it by his family from Ikoneto for screening and was eventually screened as a candidate along with one other person; Etubom Eniang Nsa Ani, for the stool of the Obong of Calabar. That the 1st Respondent was successful and accepted as the candidate for the stool of the Obong by the Western Calabar Council chaired by the 1st Appellant with 2nd Appellant as Vice Chairman and so the Appellants had by their conduct, represented to the 1st Respondent that he was qualified to vie for the Obong stool and are estopped from later insisting that he was not qualified. In its judgment, the High Court particularly at page 573, lines 18-22 of the record of appeal had stated as follows:
“Now back to the question I raised earlier, namely: Can the 1st, 4th and 5th defendants be heard to say that the 1st claimant is not qualified to vie for the Stool of Obong of Calabar, after representing to him that he was qualified? I think not. The concept of waiver which is an aspect of estoppel, or I should say, a forerunner of estoppel will not allow them do that.”
The High Court then concluded at pages 574 – 575 of the record of appeal thus:
“It is my firm view therefore that having represented to the 1st Claimant that he is qualified for the position of Obong of Calabar and having invited and allowed him into the contest, the defendant (sic) had waived their right to complain of his non-qualification, if indeed was not qualified.”
So from their pleadings, and evidence, the 1st – 5th Respondents had pleaded a case for estoppel against the Appellants on the issue of non-qualification of the 1st Respondent to vie for the Stool of the Obong of Calabar. Now the High Court said the concept of waiver is an aspect or a forerunner of estoppel. Is it right?
Before answering the short question, I would ask and answer another short question of “what is estoppel in law?”
As usual, in simple language, estoppel is an admission or something which the law treats as equivalent to an admission of an extremely high and conclusive nature that the party whom it affects, is not permitted to aver against it or offer evidence to controvert it. It is a bar or impediment which precludes the denial of the state of facts which by words or conduct of the party against whom it applies, was admitted existed or did not exist in a given situation. Estoppel is a principle of evidence that provides that a party is barred and stopped from denying or alleging a certain fact or state of facts because of his previous admission or conduct. See Oyoye v. Olubode (1974) All NLR 657; Ukaegbu v. Ugoji (1991) 6 NWLR (Pt.196) 127; Koiki v. Magnusson (2001) FWLR (Pt. 63) 167. This principle of common law and equity has been provided for in our law of evidence in Section 169 of the Evidence Act, 2011which provides as follows:
“169. When one person has either by virtue of an existing court judgment, deed or agreement, or by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representatives in interest shall be allowed in any proceedings between himself and such person or such person’s representatives in interest, to deny the truth of that thing.”

The Supreme Court in the case of Attorney-General, Rivers State v. Attorney-General, Akwa Ibom State (2011) 3 MJSC 1 at 131 had defined equitable estoppel in the following terms:
“Equitable estoppel is a doctrine preventing one party from taking unfair advantage of another when through false language or conduct, the person to be estopped has induced another person to act in a certain way, with the result that the other person has been injured estoppel by conduct or estoppel in pains. Section 151 of the Evidence Act incorporated the doctrine of equitable estoppel.”
The apex Court did not just defined the principle of estoppels but has also set out when it is applicable by conduct when it said at page 174-175 of the case as follows:
“For a conduct to estop, it must be clear and unequivocal and must have led the other person to suffer loss. Feoguson v. Duncan (1953) 14 WACA 316; Robert Koney v. Union Trading Co. Ltd. (1934) 2 WACA 1888; Fakorede v. Attorney-General (West) (1972) 3 SC 181; Odua Investments Ltd. v. Talabi (1991) 1 NWLR (Pt. 170) page 79; Menakaya v. Menakaya (1996) 9 NWLR (Pt. 172) page 256.”
The underline effect of the principle of estoppel under the common law, equity and the Evidence Act as demonstrated in the above cases is that a person who makes another to believe and act on a particular state of facts represented by him expressly or by conduct to his detriment would not be allowed in law to later deny the state of the facts. It is a bar and an impediment imposed by law against the person to who it applies.
It may be recalled that the concept or principle of waiver on its own, involves the law preventing a party from claiming or insisting on a right, which he previously expressly or by conduct abandoned, surrendered and/ or ignored knowingly, at the later date. In the sense that both principles aim at preventing a party from taking an undue and unfair advantage of another who he makes or induces to believe and act in particular way to his detriment, the High Court is right that waiver is an aspect of equitable estoppel and under the Evidence Act.With the pleadings and evidence by the 1st – 5th Respondents the issue of waiver as an aspect of estoppel, was therefore not a fresh or new issue outside the case presented before the High Court by the parties. The fact that the word “waive” was not used in the pleadings by the 1st – 5th Respondents in the facts on whether the 1st Respondent was qualified to vie for the Obong Stool, did not subtract from the application of the principle. The requirement of capping an Etubom by a reigning Obong is an aspect of the qualification for eligibility to vie for the Obong Stool which the 1st Respondent asserts he possesses “in every material particular, having met all the criteria for such a process” in paragraph 10 of the Amended Statement of Claim. To insist that the word “waiver’ must be used in the pleadings for the principle to apply even when there are sufficient facts therein which raise the issue would in my view, be a very narrow and facile approach to the consideration of the pith of a party’s case. The case presented by a party is to be determined by a wholistic and calm consideration of all the facts set out in the pleadings first and then the evidence adduced by the party in support of the facts so pleaded and not by the phraseology used in setting out the facts. As was pointed out by Tobi, JSC in the case of Enekwe v. I.M.B. Ltd. (2006) 19 NWLR (1013) 146 at 173 cited by the learned SAN for the 1st – 5th Respondent:
“A judge has the right in our adjectival law to use particular words or phrases, which in his opinion, are germane to his evaluation of the facts of the case. In so far as he does that in line with the evidence before him, it will be unfair for Counsel to castigate him or accuse him of raising issue suo motu. A judge can only be accused of raising issue suo motu if the issue was new or raised by any of the parties in litigation. A judge cannot be accused of raising issue suo motu if the issue was raised by both parties or by any of the parties to the proceedings.”
Again, in the case of Auto Import Export v. Adebayo (supra), Ogbuagu, JSC had observed at page 125 that:
“As a matter of fact, it is said that waiver is not all that simple. See Fawehinmin Construction Co. Ltd. v. Obafemi Awolowo University (1998) 5 SC 43; (1998) 5 SCNJ 44 at 54. It is also said to be a curious phenomenon. That it can in certain circumstances, be available to a plaintiff as well as to a defendant. That when available to a plaintiff, it is always that he needs not plead it as such. That he can simply rely on failure of the defendant, to insist on a right to which he is entitled. See Prince Fasade & 5 Ors. v. Prince Babalola & Anor. (2003) 4 SC (Pt. 1) 157; (2003) 4 SCNJ 287 at 302.”
From the above, it is clear that so long as the issue is derivable from the facts and evidence of the parties before the court, the court cannot be said to have raised it suo motu for reason only that it used particular words or phrases not used by the parties, to described the issue.
In the result, my finding is that the issue of waiver dealt with by the High Court in its judgment was not raised and decided suo motu by it since there are sufficient facts in the pleadings and evidence of the parties to found it.
I now go to the issue of whether the issue of capping of an Etubom by a reigning Obong as a qualifying factor to vie for the Obong Stool could be and was indeed waived in favour of the 1st Respondent was proved by the 1st – 5th Respondents at the trial. Let me start by saying that the parties to the appeal do not dispute that the entire process of nomination; selection and eventual appointment/proclamation of the Obong of Calabar are governed by the provisions of Exhibit “1/20” which was put in evidence and relied on by them at the trial. The parties again are one that under Exhibit “1/20”, for a person to be eligible and qualified to vie, vote and be voted for the stool of the Obong, he has to be an Etubom who was inducted into and recognized as a member of the Etuboms’ Council of the palace of the Obong. Articles 5(a)(ii) and 24(b) of Exhibit “1/20” provide that:
“5(a)(ii) FUNCTIONS
(i) The Etuboms Council shall be the Supreme traditional, administrative and socio-political authority in Efik Kingdom.
(ii) The Agnate members of Etuboms Council shall constitute the body of King Makers for the Efik Kingdom.
NOTE: Etuboms conclave shall include all the Agnate Etuboms who are capped by the Obong of Calabar, and who are eligible to vote and be voted.
FOR THE AVOIDANCE OF DOUBT, A CANDIDATE NOMINATED/SELECTED FOR SUCCESSION TO THE THRONE SHALL BE:
(a) Agnate blood descendant of a founding ancestor of the Efik tribe.
(b) An Etubom of a Royal House recognized as such by the Obong and Council.”
Apparently, the community importing of the above provisions is that for a person to be qualified and eligible to vie for the stool of the Obong of Calabar, he has to be an agnate Etubom recognized by the Etuboms’ Council and capped by the Obong of Calabar. None of the parties has disputed or is disputing this position in respect of the qualification required under the customs and traditions of the Efik Kingdom. For, instance, Etubom Eniang Essien, who testified as Cw1 for the 1st – 5th Respondents at the trial had under cross examination by the learned Counsel for the 1st – 3rd Defendants (6th – 8th Respondents) had stated thus:
“It is only an Etubom, whether of Western Calabar or Central Calabar that can contest or challenge the selection of Obong of Calabar. To be an Etubom, you must be recognized in the Palace of the Obong of Calabar.”
See page 387 of the record of appeal.
The witness reaffirmed that position when cross examined by the learned Counsel for the 6th – 7th Respondents (4th and 5th Defendants) by saying:
“A person made an Etubom in his Ruling House is not an automatic Etubom in the Obong’s palace. Once selected in a Ruling House, an Etubom is first presented to his Traditional Council (whether Western or Central Calabar) and inducted. It is after the induction in the relevant Traditional Council that the Etubom is then presented and inducted into the Council of Etuboms in the Obong’s Palace. The traditional rites in the Obong’s Palace include capping and induction by the reigning Obong himself. The induction includes the taking and signing of Oath of office. I did not attend the presentation or induction of the 1st Claimant as Etubom in the Obong’s Palace.”
The point of disagreement between the parties in the appeal is whether the requirement of capping of an Etubom by a reigning Obong or/induction into the Etuboms’ Council of the Obong Palace was a precondition for an Etubom to be a member of the Etuboms’ Council, who are the kingmakers as provided under Exhibit “1/20”, and be eligible to vote and be voted for in the selection for the stool of the Obong of Calabar, can be and was indeed waived for the 1st Respondent.
Because it was the 1st – 5th Respondents who asserted that the 1st Respondent is qualified “in every material particular, having met all the criteria for such process” the legal duty to prove their assertion lies on them because if no evidence at all was adduced on the assertion, it is, they who would fail. See Sections 191 and
132 of the Evidence Act, 2011, Toni v. National Pack Service Nig. (2011) 5-7 MJSC (Pt. 1) 153; Afolabi v. Western Steel Works Ltd. (2012) 6-7 MJSC 118; Adighije v. Nwaogu (2010) 12 NWLR (Pt. 1209) 419; Ojoh v. Kamalu (2005) 12 SC (Pt. II) 132.
Again, since the reliefs claimed by the 1st – 5th Respondents in their pleadings are declaratory, the proof required of or from them is one which entitles them to judgment on the strength of their own evidence and not the weakness of the Appellants’ and 2nd set of Respondents’ case or even absence of a defence to the issue of waiver considered here. So, did the 1st – 5th Respondents adduce sufficient evidence of the waiver of the requirement of capping of an Etubom by the Obong of Calabar as a qualifying factor for vying for the stool of the Obong. It may be recalled that the High Court had relied entirely on the following for its decision or finding on waiver:
“(a) That the 1st Respondent was invited for and screened by the Western Calabar Traditional Council for the stool of the Obong.
(b) That the Appellants had chaired the screening of the 1st Respondent.
(c) That the Appellants in their positions in the Western Calabar Council and Etuboms Council knew and were aware of the requirements for qualification of candidates to vie for the stool of the Obong.
(d) That the Appellants presented to the 1st Respondent by the fact of the invitation and screening, that he was qualified to vie for the stool of the Obong of Calabar.
(e) That the Appellants did not raise the issue of non-qualification of the 1st Respondent and so had waived it.”
Primarily, the High Court had used the letter of invitation from the Western Calabar Council to the 1st Respondent which was admitted in evidence at the trial as Exhibit “10” and the evidence on Oath of the 1st Respondent, particularly paragraphs 21 and 22, from which the above factors were drawn, to be the basis of the application of the principle of waiver against the Appellants. As I have stated before now, and in line with description and definition of waiver by the apex Court, it involves the abandonment of a right by a person to who it is exclusive, who has the private claim over it and about which he has unfettered discretion to claim or surrender at his will. The requirements for qualification and eligibility to vote and be voted for as prescribed in Exhibit “1/20” are not rights vested in persons who are interested in vying for the throne of the Obong of Calabar, rather they are conditions which must be satisfied by such persons as candidates who wish to contest or vie for the throne. Similarly, the requirements are not provided or prescribed as rights of the people who conduct the processes of nomination, selection and appointment/proclamation of an Obong. Rather, all the provisions of Exhibit “1/20” are binding on all the Efiks in the set up, management and administrative control of their traditional institutions. Individuals or groups of persons no matter how constituted, who have not specifically been vested with exclusive rights, privileges or entitlements under and by the provisions of Exhibit “1/20” would have no capacity or competence to waive any of its provisions over which they have no control. In particular, no requirement which was expressly provided for or prescribed by the provisions of Exhibit “1/20”, for qualification and eligibility for candidates not only to vie but to vote and be voted for as the Obong of Calabar, can be waived by any part of Calabar; west or central council or the Etuboms’ Council in the absence of the authority to do so provided in the Exhibit itself. From the extant provisions of Exhibit “1/20”, the only power and authority over the provisions given to the Etuboms’ Council is as provided in Article 17 of Exhibit “1/20” which is as follows:
“17. AMENDMENT OF THE CONSTITUTION:
This constitution may be amended by a majority vote of at least two thirds of the Etuboms present in the Etuboms’ Council. For amendment of the constitution, members must include representatives from 7 different houses as minimum.”
Thus by the above provisions, even the Etuboms’ Council, to vary or otherwise abandon any provision of Exhibit “1/20” has to amend it in the manner clearly and expressly stipulated therein. It is not the case of the 1st – 5th Respondents that the requirement in question, which is part of the provisions of Exhibit “1/20”, was varied or abandoned by the Etuboms’ Council in the manner prescribed in the above provisions. Their case, once again it may be recalled, is that because the Appellants as Chairman and Vice Chairman of the Western Calabar Council had invited and screened the 1st Respondent as a candidate for the stool of the Obong, they represented to him that he was qualified to vie for the throne. However, as an Etubom inducted and recognized by the Western Calabar Council, the 1st Respondent, like the Appellants, was presumed to know what the provisions of Exhibit “1/20” are on the qualification and eligibility of candidates to vote and be voted for as the Obong of Calabar. As evidence of the knowledge of the requirements, the 1st Respondent’s family even after his induction into the Western Calabar Council had written Exhibits “4” and “16′ requesting for his “Induction and Capping into the Etuboms’ Council, to the chairman, Etuboms’ Council, Obong’s Palace. In fact, Exhibit “16” was written on the 24th March, 2008 which was 5-6 days after the 1st Respondent had appeared before and was screened by the Western Calabar Council as a candidate for the throne of the Obong on the 18th/19th of March, 2008. So inspite of and despite the invitation and screening as a candidate to contest or vie for the throne, by the Western Calabar Council, the 1st Respondent fully aware of and in a bid to fulfill the requirement of capping/induction into the Etuboms’ Council of the Obong’s Palace for an Etubom to be qualified and eligible to vote and be voted for as the Obong of Calabar, had written Exhibit “16” to enable him satisfy and comply with the relevant provisions of Exhibit “1/20” in that regard. Can the High Court on the face of that evidence and that of Cw1 set out earlier be right to say that the Appellants had represented to the 1st Respondent that he was qualified to vie for the throne of the Obong and he acted on it by merely inviting him to participate in the process of screening candidates for the post? The 1st Respondent had pleaded and given evidence that on the date he appeared for the screening he was screened along with Etubom Eniang Nsa Ani, also a candidate invited like him, for the exercise. This clearly shows that the 1st Respondent was not the only candidate invited and screened by the Western Calabar Council in the process of selecting a qualified and suitable candidate to vie for the throne of the Obong. Is the Western Calabar Council, which according to the 1st Respondent in paragraph 21 of his statement on oath has eight (8) members, or the Appellants alone are to be taken to have represented to Etubom E. Nsa Ani, that he too was qualified to vie for the throne, simply because he was invited and allowed to participate in the process? As an Etubom, is the 1st Respondent saying that the provisions of Exhibit “1/20” which codified the customs and traditions of the Efik people and by which they are all bound can casually be abandoned, ignored, repudiated or enunciated by a Section of the Efik people, no matter their positions? I am unable to find any evidence howsoever from the 1st – 5th Respondents before the High Court which supports the findings that the requirement of capping/induction into the Etuboms’ Council of the Palace of the Obong of Calabar as a qualifying factor to eligibility to vote and be voted for as the Obong of Calabar could be and was in fact waived in favour of the 1st Respondent by the Appellants and the 2nd set of Respondents in this appeal.
Perhaps, I should point out that qualification to be invited and be screened as a candidate in the nomination process and eventual selection of an Obong of Calabar is distinct and different from the qualification for eligibility to vote and be vote for as the Obong of Calabar.
Whereas the basic qualification for invitation and screening of candidates in the process is that a candidate must be an Etubom of a Royal House or from a group of families nominated by them for the exercise and can be either of agnate or cognate descent, the qualification for eligibility to vote and be voted for as the Obong of Calabar, as demonstrated earlier, is that an Etubom must be of agnate descendant and must have been capped/inducted into the Etuboms’ Council of the Obong’s Palace which is the body of kingmakers for the selection and proclamation of an Obong under Article 5(a)(ii)(ii) of Exhibit “1/20”.
Article 5(a)(f) provides that:
“(f) THE NON-AGNATE OR COGNATE ETUBOMS’ CATEGORY “B”: Who are Etuboms from maternal lineage, etc. This category can only stop at the level of Etubom. They cannot aspire to ascend the Efik throne as Obong of Calabar. They cannot vote or be voted for in the selection of an Obong.”
These provisions clearly show that although an Etubom of either agnate or cognate descend from any of the recognized Efik Royal houses under Exhibit “1/20” is qualified to be nominated by the his Royal house and be invited for screening in the process of selecting an Obong, a cognate Etubom so nominated and screened cannot vote and be voted for as the Obong of Calabar. The fact that such an Etubom was invited for screening and a report of the screening exercise was sent to the King makers for consideration in the selection process, would not ipso facto make him qualified to vote and be voted for as the Obong. It is also unreasonable to say that the people whose duty and function it was to conduct or carry out the screening of candidates under Exhibit “1/20” had waived any specific requirement on qualification to vote and be voted for as an Obong by the mere act of the invitation and screening and then making a report thereof to the body to which they are under the duty to report to. Such an argument would turn the provisions of Exhibit “1/20” on their head, defies discernment or perspicacity and so an incomprehensive reasoning. The word “screen” in everyday language, which is plain and ordinary and in which Exhibit “1/20” was drafted, means to examine or test something or someone in order to find out if any defect exists therein or therewith or if it is or he is suitable for a particular purpose. So the essence of a screening exercise in any given situation is “to sift the grain from the chaff”, to bring out the best from the rest in terms of suitability for the purpose for which the exercise was conducted. For this purpose, the screening exercise of candidates for the Obong throne was an avenue and opportunity provided for candidates nominated by the Royal houses to participate in the selection process and test their qualification and suitability to be the Obong of Calabar. It is at the screening exercise that the qualification and suitability of the candidates invited would be scrutinized and examined carefully in line with the requirements of Exhibit “1/20” and a report thereof made accordingly to the Etuboms’ Council of the Obong’s Palace. The fact and act of the invitation to the nominated candidates to attend the screening exercise in the process of the selection and participation in the screening exercise by such invitee candidates can therefore not be or amount to the waiver of the provisions on qualification stipulated in Exhibit “1/20” for eligibility to vote and be voted for as the Obong of Calabar, by the Council or people who had the authority to invite candidates for and conduct the screening exercise. All that the Council or people charged with the screening exercise were to do was to invite and screen the candidates and then submit or forward the report of the screening exercise to the king makers for consideration in the selection process. It is the report of the screening exercise to the king makers that would contain information on the qualification, eligibility and suitability of the each of the candidates screened to vie for the throne of the Obong. The screening exercise is therefore only a step and not the end of the process of the selection of an Obong under the provisions of Exhibit “1/20”. Waiver of the qualification stipulated in Exhibit “1/20” would then not arise at the stage of the screening exercise by any of the two (2) Councils of Western and Central Calabar, in the process of selecting the Obong. For these reasons, my finding is that there was no evidence before the High Court that the requirement of capping/induction into the Etuboms’ Council of the Palace of the Obong of Calabar, as a qualifying factor to vote and bee voted for as the Obong of Calabar under Exhibit “1/20” could be and was indeed waived in respect of 1st Respondent, by the Appellants. The High Court was therefore wrong in the findings that the said requirement was waived in favour of the 1st Respondent by the Appellants and the 1st of the 2nd set of Respondents.
The issue 2 is whether there was an agreement between the Ruling houses in Western Calabar to cede the right to produce the next Obong of Calabar to Ikoneto. The arguments of the learned SAN for the Appellants on the issue are that the 1st – 5th Respondents who assert the existence of the agreement, have a duty to prove it, citing Section 133(1) of the Evidence Act, 2011, since the Appellants have denied it. The pleadings and evidence of the parties were referred to and it was submitted that the 1st – 5th Respondent did not prove that the Western Calabar Council had agreed to cede the right to produce the Obong to Ikoneto as no such agreement was shown to exist by their evidence. He said for failing to prove the agreement the claim by the 1st – 5th Respondents of such an agreement should be dismissed, relying on Uohendu v. Ogboni (1999) 5 NWLR (Pt. 603) among other cases. In the alternative, the learned Senior Counsel said even if Exhibit “2B” was such an agreement, then it is not binding on the Etuboms’ Council of the Palace of the Obong who are not parties to it. The case of Adekeye v. Akin-Olugbade (1987) 3 NWLR (Pt. 60) 214 at 315 was cited on the law that parties are bound by their pleadings and we were urged to hold that the High Court was wrong in holding that there was evidence of an agreement by the Western Calabar Council ceding the right to produce the Obong of Calabar to Ikoneto.
The learned SAN for the 1st – 5th Respondents had submitted on the issue that by Exhibit “2B” and the evidence of 6th Respondent under cross examination that he was aware that the Western Calabar Traditional Rulers Council gave Ikoneto the right to produce the Obong by virtue of his position as a member of the Council, the agreement to cede the right to Ikoneto which by Exhibit “12”, presented only the 1st claimant to the Council and so the High Court was right in its finding. In the alternative, the learned silk said that assuming the 1st – 5th Respondents did not meet the conditions given to them, was it not appropriate that they (I suppose the council) write and throw the contest open? He cited the evidence of Dw2 under cross examination that apart from Exhibit “2A” and “2B”, the Council did not write any other letter to Ikoneto that the contest was thrown open since they could not present a suitable candidate. According to him, the evidence confirms that the Appellants had agreed to cede the right to produce the Obong to Ikoneto which was at no time taken from it and thrown open. We were urged not to disturb the finding by the High Court.
The case of the 1st – 5th Respondents in paragraphs 11-14 of the Amended Statement of Claim and the statement of oath of 1st Respondent in paragraphs 15-18 and of the Cw1; Etubom Eniang Essien at paragraphs 3 and 4 is that the Western Calabar Council had mandated Ikoneto to produce a candidate for the stool of the Obong.
On their part, the Appellants in paragraphs 12 and 13 of their Amended Statement of Defence, paragraph 11 of the Further witness statement of on oath of the 2nd Appellant; say that the right to produce candidates for the Obong stool was not ceded to Ikoneto by the Western Calabar Council. The 2nd set of Respondent also deny that the right to produce candidates for the Obong stool was restricted to Ikoneto but was open to all Royal houses in Western Calabar, citing Exhibit “3B”. The 1st – 5th Respondents had relied on the Exhibits “2A” and “2B” as well as the evidence of Dw1 under cross examination in support of the agreement to cede the right to Ikoneto. Exhibit “2B” which in the English translation of Exhibit “2A” in Efik, is a letter dated the 13th of March, 2008 from the Western Calabar, c/o Adiabo Ikot Mbo Otu, Odukpani Local Government Area to the Etuboms of Obomitiat/Mbiabo Ikoneto, c/o The Etuboms of Esen Ikoneto the Okpokoro Mbomo; The Etuboms of Efik Iboku Esiet Edik, Odukpani Local Government Area. The contents are thus: Exh. “2B”-
“Our dear Etuboms,
THE SELECTION OF NEW OBONG
As you already know that in the past three weeks, the council of Etubom in Efik Iboku Esit Edik, while you are all one had met several times, and deliberated on the procedures of selecting a new Obong of Calabar. It was decided that since Esen Ikoneto could not resolve to present a candidate from its many contestants to the meeting, let Obio Oko (Creek Town) be given the chance to produce the next Obong. Because of this development. Obio Oko met and submitted the name of the person among their Etuboms it has chosen, who is worthy to be the next Obong to the meeting.
But in the last meeting held on Wednesday, the council received a letter from Esen Ikoneto, where they expressed their disapproval of the earlier agreement and contested the decision taken. Sequel to this development, the council reversed its earlier decision and gave Esen Ikoneto another opportunity to present to the council.
In consonance with the resolve of the council, the council gave Esen Ikoneto the last chance to meet internally and present a candidate from within them to the council on Monday 17th March, 2008 at 4.00p.m. in the meeting hall at Adiabo.
If they fail to comply as directed, the opportunity will be given to other houses in Efik Iboku Esit Edik.
Accept my warm regards. Let the peace of God remain with you.
SGD:
Ghief Essien E. Ekpenyong
Secretary
Cc:
i) Chairman Etubom Conclave, Efik Iboku Esit Edik.
ii) All the Etuboms, Etubom Conclave Efik Iboku Esit Edik”.
Worthy of particular vote in the above letter are the statements in paragraphs 3 and 4 thereof that:
“In consonance with the resolve of the Council, the Council gave Esen Ikoneto the last chance to meet internally and present a candidate from within them to the Council on Monday 17th, March, 2008 at 4:00pm in the meeting hall at Adiabo.”
And;
“If they fail to comply as directed, the opportunity will be given to other houses in Efik Iboku Esit Edik.”
Undoubtedly, from the above statements, the Council had resolved to and gave Esen Ikoneto the last chance to present a candidate to it by the 17th March, 2008 at 4pm with the condition that if Esen Ikoneto did not do so, the right to present candidates was to be given to other houses. It is beyond argument that the resolution to and concession of the right and the last chance for Ikoneto to present a candidate to contest for the Obong stool, to the Western Calabar Council was made very clearly dependent on their meeting the conditions stipulated in the letter. The conditions are:
“(a) That Esen Ikoneto present a candidate, a alone candidate and not more; and
(b) That the single candidate be presented to the Council not later than Monday the 17th March, 2008 at 4pm.
As a result, from the tenor of the letter, if Ikoneto failed to meet, comply or satisfy the above conditions together, the right and last chance to them by the resolution of the Council to produce a candidate for the contest, was to be lost by that failure and automatically, “the opportunity will be given to other houses in Efik Iboku Esit Edik”. Was there evidence that Esen Ikoneto met, complied or satisfied the above conditions?”
The learned Senior Council for the 1st – 5th Respondents had argued that Ikoneto had responded to the Exhibit “2B” by nominating the 1st Respondent vide Exhibit “12”. Exhibit “12”, would speak for itself and here it is:
“March 19, 2008.
The Chairman,
Efik Iboku Esit Edik Traditional Council,
Adiabo Ikot Mbo Otu,
Odukpani Local Government Area.
Respected Chairman,
NOMINATION OF ETUBOM (DR.) ANTHONY ASUQUO ANI (MON) AS CANDIDATE FOR THE STOOL OF OBONG OF CALABAR
We the people of Ufok Ikot Nkpor had in our letter dated March, 10, 2008 intimated your council of our decision to present our Etubom (Dr.) Anthony A. Ani (MON) to contest for the stool of the Obong of Calabar.
This letter therefore serves to re-affirm that Etubom (Dr.) Anthony A. Ani (MON) is our candidate for the stool of the Obong of Calabar.
Yours faithfully,
UFOK IKOT NKPOR TRADITIONAL COUNCIL
SGD:                                                                SGD:
Etinyin Okon E, Offiong                               Anthony A. Offiong
CHAIRMAN                                                 SECRETARY
The first item to be noted on the Exhibit “12” is that it was dated the “March 19, 2008” which was a date outside and after the 17th of March, 2008 stipulated in Exhibit “2B”, the last day by which the right conceded to Ikoneto to present a candidate to the Council, expired or ended and from which it reverted back to the Council to give the opportunity to other houses in Efik Iboku Esit Edik. Although in paragraph 1 it was stated that the Council had been intimated of the decision to present the 1st Respondent to contest for the stool of the Obong in a letter dated the March, 10, 2008, it can easily be observed that the said letter was before
Exhibit “2B” was written by the Council. So Exhibit “2B” was later in time and was to be complied with inspite of the letter dated March 10th, 2008. Patently, the first condition for the exercise of the right ceded by the Council to Ikoneto in Exhibit “2B” was not met or satisfied by it since the presentation of 1st Respondent vide Exhibit “12” to the Council was made after the effluxion of the dateline of Monday, the 17th March, 2008 contained in Exhibit “2B”.
Then the 1st – 5th Respondents had pleaded in paragraph 18 of the Amended Statement of Claim and gave evidence in paragraphs 11 and 22 of the 1st Respondent’s statement on oath filed on 3rd July, 2009 and paragraph 8 of the statement on oath of Cw1 filed on the same date, that the 1st Respondent was screened on the same date by the Council, with Etubom (Commander) Eniang Nsa Ani, also from Ikoneto, of Ufok Ikot Ani family, as candidate for the stool of the Obong. This very clearly shows that Ikoneto to whom the right was ceded by the Council to present “a candidate from within them” in Exhibit “28”, presented the 1st Respondent and Etubom (Commander) Nsa Ani as candidates for the screening by the Council. Once more, the second condition for the exercise of the ceded right in Exhibit “2B” i.e. to present a candidate, a single or sole candidate, was not complied with by Ikoneto. Again, that failure by Ikoneto to abide by, comply with or satisfy the second condition for its exercise of the right ceded to it by the Council, automatically by the express terms of Exhibit “2B”, ended the agreement or resolution by the Council to cede the right or last chance to Ikoneto to present a candidate. The failure also activated the resolution of the Council to give the right or opportunity to other houses in Efik Iboku Esit Edik in Western Calabar as stated in Exhibit “2B”. The unequivocal evidence before the High Court was therefore that though there was a resolution by the Western Calabar Council to cede the right to Ikoneto to produce a single or one candidate by the 17th day of March, 2008 as shown in Exhibit “2B”, Ikoneto presented two (2) candidates and after the dateline of Monday the 17th day of March, 2008 to the Council. Faced by the above state of the evidence, can the High Court be right to have found that “there is no evidence that Ikoneto presented any other candidate” and that “it stands to reason that having agreed to cede the right to produce the Obong of Calabar to lkoneto, and having not rejected the candidate duly presented by Ikoneto the Western Calabar Traditional Rulers Council had no right looking elsewhere for a candidate”?
These findings are not supported by the above uncontroverted and admitted case presented by the 1st – 5th Respondents in both pleadings and evidence, to the High Court. In addition, in the latter finding, the High Court would appear to have made out a case not presented by the parties before it in the sense that the basis of the finding was Exhibit “2B”. Speaking for itself, as seen earlier, Exhibit “2B” did not “cede the right to produce the Obong of Calabar to Ikoneto” but rather, “to present a candidate from within them” to the Council for the selection process in the contest for the stool of the Obong of Calabar. The Western Calabar Council had no mandate under Exhibit “1/20” to select, appoint and proclaim an Obong and so could not have ceded the right to produce the Obong of Calabar to any family or group of families in the selection process of the Obong. A court has a duty to confine itself to the case presented before it by the parties and is not permitted in law to make a case different from the one the parties themselves presented for decision by the Court. Bank of the North v. Gana (2007) All FWLR (Pt. 296); Ojoh v. Kamalu (2005) 12 SC (Pt. 11) 132; (2006) All FWLR (Pt. 297) 978; Uchonma v. Unosi (1977) 2 SC 57; Adebajo v. Brown (1990) 3 NWLR (Pt. 141) 661; Nbei v. Integrated Gas (2005) All FWLR (Pt.250).

It is a cardinal principle of law that the duty of a court in the interpretation of documents whether as evidence before it or as laws or statutes applicable in a case before it, is to give the words employed or used in drafting the documents their ordinary and plain meaning, particularly when they are unambiguous. It is not part of the function of a Court and it has no right to import into or export out, read in or read out of a document what is not contained therein in the guise of interpretation. The known rule of interpretation of statutes or documents is to exclude what is not stated in the statute or document.

It is expressed in Latin as “expressio unirom exclusio alterius” meaning what is not stated is deemed excluded. See Ayowe v. Obasanjo (2006) All FWLR (Pt. 334) 1967 at 1979; Ashibuogwu v. Attorney-General of Bendel State (1988) 1 SCNJ 130; Ishola-Williams v. T. A. Hamuwud Projects Ltd. (1988) 2 SCNJ 318; Swanta v. Aya (1991) 3 NWLR (1977) 15; Nnonje v. Anyichie (2005) 1 SC (Pt. 11) 96.I am in agreement with the learned Senior Counsel for the Appellants that there was no evidence before the High Court that the Western Calabar Council ceded the right to produce the Obong of Calabar vide Exhibit “2B”. The right expressly, plainly and unequivocally ceded to Ikoneto by the resolution of the Council in Exhibit “2B”, was to present a candidate to the Council for its consideration in the process of selecting a new Obong of Calabar. The ipse dexit of any of the Dws under cross examination cannot in law change or contradict the contents of Exhibit “2B” on the nature of the right conceded therein to Ikoneto. See Fagbenro v. Arobadi (2006) All FWLR (Pt. 310) 1575; Nnubia v. Attorney-General, Rivers State (1999) 3 NWLR (Pt. 593) 82; UBN v. Ozigi (1994) 3 NWLR (Pt. 333) 385; Koiki v. Magnusson (1999) 8 NWLR (Pt. 615) 492.
The learned SAN for the 1st – 5th Respondents had asked whether if they did not meet the conditions given to them in Exhibit “2B” it was not appropriate for the Appellants to have written to Ikoneto to tell them that the contest was being thrown open to other houses in Western Calabar. The answer to that question is contained in Exhibit “2B” itself which had given Ikoneto prior notice that if it did not meet or satisfy the conditions set out therein, the opportunity or right to present candidates was to be given to other houses in Efik Iboku Esit Edik. The notice was already contained in Exhibit “2B” and Ikoneto had received it and knew that the contest was to be thrown open if they failed to comply and satisfy or meet the conditions given to it therein. The issue of writing another notice or letter by the Council to Ikoneto when it failed to meet the conditions given to it did not arise, let alone the propriety of doing so.
In the result, I find that Exhibit “2B” was an agreement by the Western Calabar Council to cede the right to Ikoneto to produce a candidate for consideration in the selection process of the Obong of Calabar upon the fulfillment of the conditions set out therein. I also find that Ikoneto failed to meet or comply with the conditions set out in Exhibit “2B” and thereby lost the claim to the exclusive right to present a candidate as indicated in the Exhibit.
The learned Senior Counsel for the Appellants had submitted on issue 3 that the institution of the action by the 1st Respondent and Exhibits “7B/13B” show that the 1st Respondent was not acceptable and/or was rejected for the Obong Stool. He also referred to the evidence of the witnesses as well as Exhibits “8/19” and argued further that there was evidence that Ikoneto presented two candidates; the 1st Respondent and Etubom (Commander) Eniang Nsa Ani Ita, for the screening by the Western Calabar Council. It was his further submission that Exhibits “14B”, “3B/158”, “78/138” show that Creek Town and Adiabo had each nominated a candidate to Western Calabar Council for screening for the contest for the Obong Stool.
The learned SAN for the 1st – 5th Respondents did not directly address the Appellants’ issue 3 but under his issue 2 said the selection process was faulty.
I have under issue 2 above found that since Ikoneto had failed to comply with or meet the conditions stipulated in Exhibit “2B”, they had lost the exclusive right to present a candidate conceded to them and that the Western Calabar Council had the right to give the opportunity to other houses in Western Calabar. The right of the Council to give such opportunity to other houses reverted to it from Exhibit “2B”, at the expiration of the dateline of 17th March, 2008 and the failure of Ikoneto present a candidate by that date. The right of the Council became exercisable from any time after 4pm of the 17th March, 2008. Now the crucial question that arises at this stage is whether there was evidence that the Council had exercised that right and given the opportunity to the other houses in Western Calabar to present candidates for the contest. Giving the opportunity to the other houses would involve the same process or way that the Council gave Ikoneto the last chance by its resolution to present a candidate as in Exhibit “2B”, so was there any evidence of such a process before the High Court. The learned SAN for the Appellants had only referred to Exhibits which show that the Obongship is rotational and that Creek Town and Adiabo each nominated a candidate to Western Calabar for screening. He also referred to a letter dated the 4th of March, 2008 from Adiabo where the 1st Appellant comes from, to the 1st Appellant (as Chairman of the Western Calabar Council) that if the then Obong was unable to survive, they had selected the 1st Appellant as their candidate for the contest. The letter is said to be listed as No.12 at page 148 of the record of appeal, as one to be relied on by the Appellants in proof of their case against the 1st Respondent. The first thing to be said about the said letter is that it was not put and admitted in evidence at the trial and so was not part of the evidence adduced by the Appellants in support of or proof of their case against the 1st Respondent as stated by the learned SAN. The mere fact that the letter was named or mentioned in the notice of the list of documents the Appellants intended to rely on at the trial did not automatically make it part of the evidence at the trial.
In any event, even if the said letter was part of the Appellants’ evidence at the trial, it would be of no value in the determination of the question posed above because it was dated 4th of March, 2008 long before the Council ceded the right to present a candidate to Ikoneto and before the right to give the opportunity to the other houses by the Council, arose or reverted to it.
Perhaps I should also point out that the other houses in Western Calabar can only properly know that Ikoneto to who the right was ceded to present a candidate by the Council had failed to fulfill conditions stipulated for them, was through the communication by the Council to them of such fact. They can also only know about the opportunity given to them to present their own candidates as a result of the failure by Ikoneto, to contest for the Obongship Stool. I can find no evidence howsoever, because there was none, before the High Court that the Western Calabar Council had officially, as in Exhibit “2B”, notified or informed the other houses in Western Calabar of the failure by Ikoneto to present a candidate and thereby calling or inviting such houses to present their own candidates to the Council for consideration in the selection process. There was also no evidence whatsoever that any of the other houses had thereafter notified the Council of the nomination of any persons as candidates in process. In particular, there was no evidence that the 1st Appellant and Etubom Essien Ekpenyong Efiok, the other candidates said to have also been screened by the Western Calabar Council in the selection process, were duly nominated by their respective families or royal houses after they were notified and invited to do so by the Council. From the case available to the High Court, the 1st Appellant simply used his position as the Chairman of the Council to make himself a candidate and so as not to be seen glaringly to be the sole candidate in the screening exercise, he and 2nd Appellant used the name of Etubom E. E. Efiok as a candidate even though he was not nominated by his family or royal house.
The High Court was therefore right in finding to that effect in its judgment. I resolve the point 1 against the Appellants.
I have under Issue 1 found that Ikoneto presented two (2) candidates and that 1st Respondent not being an Etubom capped/inducted into the Etuboms’ Council of the Palace of the Obong of Calabar did not meet the qualification set out in Exhibit “1/20”. These points have been subsumed in the issue.
Issue 4 is whether the High Court was right to grant injunctive reliefs not sought for and after the acts complained of had been completed. It was submitted by the learned silk for the Appellants that the injunctive reliefs granted by the High Court were not sought for in the reliefs set out in the 1st – 5th Respondents, Amended pleadings by which they are bound. He said the High Court was confined to the reliefs claimed in the pleadings and cannot grant any relief outside of the pleadings of the parties. Cases of Osuji v. Ekeocha (2009) 16 NWLR (Pt. 1166) 81 at 125; Amadi v. Chinda (2009) 10 NWLR (Pt. 1148) 107 at 124 and Eagle Super Pack Nig. Ltd. v. A.C.B. Plc (2006) 19 NWLR (Pt. 1013) 20 at 56 inter alia were relied on and it was further argued that the High Court granted the reliefs set out in the 1st Respondent’s statement on oath and not those claimed in the pleadings which are said to be materially different. In further argument, the learned SAN said the injunctive orders were made after the new Obong was selected, proclaimed and traditionally crowned with a certificate issued to him and recognized by the Government. He contended that in the circumstances an injunction could not issue in law since there was no live issue, relying on Attorney-General, Abia State v. Attorney-General of the Federation (2006) 16 NWLR (pt.1005) 265 at 387. We were urged to uphold the submission and find in favour of the Appellants.
On his part, the learned SAN for the 1st – 5th Respondents had submitted on the issue that the injunctive orders granted by the High Court flowed from the main reliefs particularly (h) claimed in the pleadings and it was empowered to make consequential orders to give effect to its judgment. He cited Amaechi v. INEC (2008) 5 NWLR (Pt. 1080) 227 at 315 and Awoniyi v. Registered Trustees of Amore (2000) 10 NWLR (Pt. 676) 522 at 544 and argued that since the High Court had set aside the selection of the 1st Appellant as the Obong of Calabar, the injunctive order that he be restrained from parading himself as the Obong was consequential. We are urged to affirm the orders by the High Court.
The submissions on the issue contained in the Appellants’ Reply are not answers to any new point raised in the 1st – 5th Respondents’ brief but are further arguments of it. The injunctive orders are said not to be consequential.
I would start by saying that the general position of the law is that a court does not ordinary grant a party to a case a relief which he did not ask for in the case. See Ekpenyong v. Nyong (1975) 2 SC 71; Union Bev. Ltd. v. Owolabi (19S8) 1 NWLR (Pt. 68) 128; Odofin v. Agu (1992) 3 NWLR (Pt.229) 350; Egonu v. (1978) 11-12 SC 111; Edebiri v. Edebiri (1997) 4 NWLR (Pt. 498) 105.

The law is also settled that a court has the power and is entitled to grant a relief though not claimed or asked for by a party in a case if it flows from and is incidental to the reliefs claimed by the party. A relief which is an offshoot of and which draws it existence from the main claims of a party can be granted by a court to such a party as a consequential relief that is traceable and derivable from the reliefs claimed by the party in order to give effect to the judgment of the court. It must thus, not be a new, independent or fresh relief completely outside and not related directly to the claims made by a party in a case. See Obayagbona v. Obazee (1972) 5 SC 247; Ezeonwu v. Onyechi (1996) 3 NWLR (Pt. 438) 499; Liman v. Mohammed (1999) 9 NWLR (Pt. 617) 116; Ishola v. Folorunso (2010) 13 NWLR (Pt. 1210) 169 at 192.I have set out the reliefs claimed by the 1st – 5th Respondents as well as the reliefs granted by the High Court in its judgment at the beginning of this judgment. The injunctive orders specifically complained of by the Appellants are numbers 6 and 7 at pages 588-589 of the record of appeal. For ease of reference, they are:
“6. An injunction restraining the Etubom Traditional Council either by themselves, their servants, hirelings, agents, privies or however from carrying out any contest for the selection of a new Obong of Calabar without the participation of Ikoneto or it candidate (the 1st Claimant).
7. The 4th defendant is hereby restrained either by himself, his servants, agents or privies from representing or further representing himself to the general public as Obong of Calabar.”
The 1st – 5th Respondents had in their pleadings; the Amended Statement of Claim, claimed relief (h) in the following terms:-
“(h) An order setting aside the purported selection, screening and appointment of the 4th defendant as the Obong of Calabar.”
The High Court had granted the relief in its judgment and set aside the purported selection/selection/election and appointment of the 4th defendant as the Obong of Calabar in its order No.4 at page 588 of the record of appeal. Clearly, the restraining order No.7 above is one which flows naturally and directly from the relief (h) claimed by the 1st – 5th Respondents which was granted, by the High Court and it is one which gives effect to the relief claimed and granted in the case. The relief is incidental and derivable directly from the relief claimed by the 1st – 5th Respondents and so it was consequential, meant to enforce the relief granted by the High Court. The High Court had the power and was entitled to make the restraining order which is to put into effect the relief granted by it and the order did have to be claimed or asked for by the 1st – 5th Respondents before it could be validly made, it being consequential. It is not an independent or fresh relief that was outside the ones claimed by the 1st – 5th Respondents in their pleadings.
The 1st – 5th Respondents had claimed in relief (g) of their pleadings as follows:
“(g) An injunction restraining the 1st – 5th Defendants from selecting or contesting or purporting to select and any person as the Obong of Calabar, contrary to the agreement that it is the turn of Ikoneto.”
Here again, the injunctive order 6 above made by the High Court restraining the Etuboms’ Council from carrying out any contest for the selection of a new Obong without the participation of Ikoneto, is directly incidental and flows from the relief claimed by the 1st – 5th Respondents in the above relief (g). The order was made to give effect to the preceding orders made by the High Court, numbered 2, 3 an 5 which were reliefs claimed by the 1st – 5th Respondents in their pleadings. The restraining order 6 is related to and is consequential to the reliefs claimed by the 1st – 5th Respondents which the High Court had the power and right to make in the circumstances.
The learned SAN for the Appellants had also argued that the orders complained of were made on completed acts of selection and proclamation of a new Obong. The law is now firmly established that the courts do not make or grant injunctive or restraining orders in respect of acts or event which have already been done, completed or have happened or taken place before the court was approached for such reliefs. An order of injunction is usually and properly made or issued to prevent or stop an act or event from either being started, done or continued and to restrain it from happening at all. It is directed at future events or acts. Where such an event or act had already happened, been done or completed, an order of injunction or restraint to prevent it from happening would be belated and in vain. The courts are known not to make a practice of making orders in vain, which injunction in respect of completed acts or event is. See Ikechukwu v. Iwugo (1989) 2 NWLR (101) 99; Governor of Imo State v. Anosike (1987) 4 NWLR (66) 663; Alon v. Dandrill Nig. Ltd. (1997) 8 NWLR (577) 495; Attorney-General, Abia State v. Attorney-General. Federation (2006) 16 NWLR (1005) 265 at 387, which was cited by the learned silk in his brief.However, I should remind him that the High Court had before making the order, found and held that the entire selection process leading to the completion of the acts of selecting and appointing a new Obong were null and void and had set them aside. If the whole process was set aside by the High Court, what was left of the completed acts that were only a product of the nullified process? The known legal effect of the nullification or setting aside of a process leading to an act is such that it renders the completed act as if it never happened or come into being at all. There can be no valid product from an invalid process it is garbage in, garbage out, as the popular saying goes. The order setting aside the process leading to the selection of a new Obong had the effect of nullifying the process from the beginning or ab initio.

To set aside means to discard, to reject, to repudiate, to dismiss or to abandon something or to annul by a court of law. See Black’s Law Dictionary, 8th Edition edited by Brian A. Garner.

In law, a nullity is a void act with no legal consequence and any proceedings leading to the void act are deemed never to have taken place or happened. Recently, the Supreme Court in the case of Abubakar v. Nasamu (2012) LPER, 7826, (12) had defined “nullity in law” as follows:-
“A nullity in law is a void act, an act which has no legal consequence. A proceeding of which has been declared a nullity is void and without legal effect or consequence whatsoever. It does not confer any legal right whatsoever, or it does not impose any obligation or liability on any one.
Again, the apex court had defined the word “nullity” in the earlier case of Okoye N.C.E & Co. Ltd. (1991) 6 NWLR (199) 501 at 538 in the following terms:-
“when a thing is a nullity, it is as if the thing never existed.”
See also Ogbu v. Orum (1981) 4 SC, 1; Kajubo v. State (1988) 1; Okafor v. Attorney-General, Anambra State (1991) 6 NWLR (200) 659; Nwosu v. Udeaza (1990) 1 NWLR (125) 180; Salah v. Monguno (2006) 15 NWLR (100) 26 at 74; Amaechi v. INEC (2007) LPELR, 8253. Because the whole process was set aside by the court, in order to enforce the order, the restraining Order 6 was made by the High Court as a consequence or result of that order. Taken along with the other orders made by the High Court in the judgment, orders 6 and 7 flow as incidents of the main reliefs claimed by the 1st – 5th Respondents in their pleadings and are consequential reliefs granted by the High Court to give effect to its judgment. They did not in the circumstance have or even need to have been claimed specifically by the 1st – 5th for the High Court to grant or make them. The issue is resolve against the Appellants, in the result.
The Appellants’ issue 5 is whether from the evidence of the parties it was the 1st Respondent and not the 1st Appellant that was traditionally qualified to be proclaimed and crowned the Obong of Calabar. According to the learned SAN for the Appellants under Exhibit “1/20”, the traditional requirement for an Etubom to meet in order to be proclaimed the Obong if found suitable, is that the Etubom must be a member of the Etuboms’ Council of the Palace of the Obong and of agnate descent – Articles 1 and 5 of Exhibit “1/20”. He said the 1st Respondent was at the material time and up to the time of the action, not a capped Etubom by the Obong of Calabar to be eligible to vote and be voted for as the Obong. Exhibits “4/16” and “12” were cited as support for the submission, along with Exhibits “6/18” and “5/17”. In addition, the evidence of the 1st Respondent under cross examination that the late Obong did not cap him because at the time he took over the Etubomship from Etubom Okon Effiong, he had fallen traditionally ill was referred to and said to be an admission that the 1st Respondent was not capped and so required no further proof. The cases of Ekemupolo v. Edremoda (2009) 8 NWLR (Pt. 1142) 166 at 196 and Achu v. Civil Service Commission, Cross River State (2009) 3 NWLR (Pt. 1129) 475 at 497 were relied on for the argument and other submissions similar to the ones made under issue 1 on the qualification of the 1st Respondent were made by the learned SAN who urged us to hold that the 1st Respondent was not qualified traditionally, to be proclaimed and crowned as the Obong of Calabar. Furthermore, he referred and relied on Exhibit “144”, the Section 10(v) of which recommended that an Etubom of a royal house must be an Etubom serving in the Etuboms’ Council and be in regular attendance and take active part in all matters of the Council to qualify for the Obongship. The learned silk submitted that 1st Respondent not being a member of the Etuboms’ Council at the Palace of the Obong, did not attend the meetings of the Council regularly to be qualified to be the Obong.
For the 1st Appellant, Chief Williams, SAN contended that under Exhibit “1/20” and Exhibit “14A” he was qualified to vie for the Obong Stool and be proclaimed and crowned as the Obong of Calabar because he is an Etubom of agnate descent and capped/inducted into the Etuboms’ Council by a reigning Obong. Exhibit “21” and Articles 1 and 5 of Exhibit “1/20” were referred to and it was argued that the 1st – 5th Respondents averments in paragraphs 19, 20 and 21 of the Amended Statement of Claim were not supported by evidence and so deemed abandoned. That the averments of the 1st Appellant in paragraph 20(iii), (iv), (v) and (vii) of the Amended statement of defence were not denied by the 1st – 5th Respondents. We were urged to hold that from the evidence at the trial, it was the 1st Appellant and not the 1st Respondent that is qualified traditionally to be proclaimed and crowned as the Obong of Calabar.
Mr. Agi, SAN for the 1st – 5th Respondents said on the issue that the 1st Respondent was qualified as argued under issue 1. On the non-qualification of the 1st Appellant he said the averments in paragraphs 12, 14, 7 and 23 of the Amended Statement of Claim were supported by the evidence of 1st Respondent who was not asked a question under cross examination to challenge the veracity of his evidence that 1st Appellant was not qualified to contest for the Obongship. The learned silk contended that the pleadings of the 1st Appellant that he is an agnate Etubom were not supported by evidence and that the evidence of the Appellants at page 309-314 of the record of appeal did not dispute the evidence of the 1st – 5th Respondents, that the 1st Appellant was not qualified. In the alternative, it was argued that even if the evidence of the 1st – 5th Respondents was disputed, the evidence of the Appellants was completely destroyed under cross examination and the 2nd Appellant’s evidence on the genealogy of the 1st Appellant was hearsay, inadmissible under Section 138 of the Evidence Act, 2011. Authorities on the principles of law that (a) failure by a party to cross examine on evidence is deemed to be admission of the evidence, (b) that pleadings do not talk and if not supported by relevant evidence are deemed abandoned and (c) the attitude of the appellate Courts on the evaluation of evidence by lower Courts, were cited by the learned SAN who finally urged us not to disturb the findings by the High Court.
The learned SAN for the Appellants simply emphasized the submissions earlier made on the issue, in the Appellants’ Reply brief.
I have dealt with the issue of the 1st Respondent’s qualification under Exhibit “1/20” to vote and be voted for as the Obong of Calabar in my consideration of the Appellants’ issue 1.
On the qualification of the 1st Appellant to vote and be voted for as the Obong, the only point of dispute between the parties is whether there was evidence that he is of cognate and not of agnate descent. Admittedly, the 1st Appellant is an Etubom of a royal house who holds the recognized Ekpe title of Iyamba Efe Ekpe Otu Mesembe in Adiabo and capped by an Obong and inducted into the Etuboms’ Council of the Palace of the Obong of Calabar, by which he became a member of the king makers of the Efik Kingdom under Exhibit “1/20”
In its judgment, the High Court had found that the evidence of 1st Respondent statement on oath, that the 1st Appellant was of cognate descent, was not challenged under cross examination by the Appellants and so they were deemed to have admitted it. As seen above, the learned Senior Counsel for the 1st – 5th Respondents had said that the non-qualification of the 1st Appellant was averred in paragraphs 12, 14, 7 and 23 of the their Amended Statement of Claim at pages 19 an d 21 of the record of the appeal. Here are the paragraphs:
“7. The 7th Defendant is the Chief Law Officer of the 6th Defendant. He advises the 6th Defendant on judicial matters and defends all its actions.
12. The Plaintiffs aver that the Western Calabar Traditional Rulers Council met and mandated Ikoneto to produce a suitable candidate for the stool. When it appeared to Western Calabar Traditional Rulers Council that Ikoneto was not ready, they asked Creek Town to produce a candidate. However, upon Ikoneto’s protest, the Council reverted to its earlier agreement and gave Ikoneto a deadline to produce a candidate or forfeit their turn. The Council’s letter of 13th March, 2008, and the interpretation of same are hereby pleaded.
14. The Plaintiffs aver that having agreed between the families in Western Calabar to cede the right to produce the Obong of Calabar to Ikoneto and having acted on same, all the other clans and families are estopped from purporting in contest, be selected or screened for the stool of the Obong of Calabar.
23. The Plaintiffs aver that the 4th Defendant is not qualified to be selected and to contest for the stool of the Obong of Calabar.”
As can be seen, the non-qualification of the 1st Appellant averred in these paragraphs did not specifically assert that the 1st Appellant is of cognate and not agnate descent. However, as stated under Issue 1, being an Etubom of agnate descent is one of the essential element or requirement for qualification to vote and be voted for as the Obong of Calabar under Exhibit “1/20”. But when the above paragraphs are considered along with all the other averments in the Amended Statement of Claim, that is taking or looking at the case presented therein by the 1st – 5th Respondents as a whole, it would be clear that the non-qualification asserted therein of the 1st Appellant was based not on the fact that he is of cognate and not agnate descent, but on the facts that the right to produce the Obong was ceded to Ikoneto by the Western Calabar Council of which 1st Appellant was Chairman, along with 2nd Appellant. That he invited the 1st Respondent for and presided over the screening of the 1st Respondent as a candidate in the selection process and that he turned himself into a candidate later for the selection to be Obong. So the above averments do not assert that the 1st Appellant is not of agnate descent.
The averments of the 1st – 5th Respondents which asserted that the 1st Appellant is of cognate and not agnate descent are contained in their Reply to the Appellants’ Amended Statement of defence filed on the 3rd July, 2009 which is at pages 274-279 of the record of appeal. The relevant paragraphs are 4, 5, 6 and 19 which are as follows:
“4. In response to paragraph 4 of the Amended statement of defence of the 4th and 5th Defendants, the Claimants state that the 4th defendant is not in any way howsoever qualified to contest, vote and or be voted for as a candidate for the stool of the Obong of Calabar. He is cognate origin and not of any agnate descendant.
5. In further response to paragraph 4 of the 4th and 5th Defendants’ statement of defence, the claimants assert that, Ukpong Atai had four children namely: Eton Ani (M), Enian Nkor (M), Ani Nkot (M), Nkwa Ukpong Atai (F) and Asa, who was childless. Eton Ani founded Ikot Offiong, Enian Nkot and Ani Nkot settled in Ikoneto. Nkwa Ukpong Atai moved to Ibonda, where she married Mesembe and begot Otu Mesembe. Nkwa Ukpong Atai, being a princess and a strong willed woman, named her son Otu Mesembe Ukpong Atai.
6. Otu Mesembe begot five children namely: Iyo Otu (M), Efa Otu (M), Inameti Otu (M), Ukpa Otu (F) and Mbo Otu (F). Mbo Otu married Ntoe Inok Agbor Eta Iso of Ikot Ansa and the union was blessed with two issues: Inokawan Inok (F) and Otu Inok (M).
19. The Claimants, in response to paragraph 20 of the amended statement of defence of the 4th and 5th defendants, reaffirm that the 4th defendant is not in any way howsoever qualified to be nominated, to contest, vote and or be voted for as a candidate for the stool of the Obong of Calabar, as he is of cognate and not of agnate descendant.”
The Appellants denied the above pavements in the 4th and 5th Defendants Further Defence to the Claimants’ Reply which was filed on the 29th July, 2009 and deposed in paragraphs 1, 2, 3 and 4 thus:
“1. The 4th and 5th Defendants deny paragraph 4 of the Claimants’ Reply and state that the 4th defendant is full of an agnate descent in Adiabo Ikot Mbo Otu and he was inducted into the Etuboms Traditional Council as an Etubom Obio by a reigning Obong of Calabar.
2. In response to paragraph 5 of the Claimants’ Reply, the 4th and 5th Defendants state as follows:
(a) It is not true that Ukpong Atai had 4 children as averred by the Claimants and the names as stated by the Claimants are false and an attempt to mislead this Honourable Court.
(b) The 4th and 5th defendants further state that Ukpong Atai Ema Atai Iboku had five (5) children, namely, Eton (M); Edem (M); Ukpong (M); Effiom (M) and Oso (M);
(c) Furthermore, the 4th and 5th defendants states that Asa and Nkwa were grand children of Otu Mesembe and not direct children of Ukpong Atai. The 4th and 5th Defendants further aver that Asa and Nkwa were not childless or barren as stated by the Claimants;
(d) Asa Otu Mesembe married Nwanda of Ibonda and gave birth to Ito Nwanda, while Nkwa got married to Muri Mutari Anaantem of Efut. She gave birth to two (2) children namely, Nyong and Ena. Nkwa was at no time married to any Mesembe and she never named any of her children Out Mesembe Ukpong Atai. The 4th and 5th defendants maintain that in Efik tradition, children are not named by their mothers;
(e) The 4th and 5th Defendants also state that the name Mesembe was a circumstantial cover-up name which was given to a great warrior whose real name was Otu Efa Otu Ukpong Ema Atai Iboku. The warrior violated some ritualistic rites of war during the Ashanti and Fanti War in Ghana. He was sort after; he disguised and changed his name to Out Mesembe.
(3) In response to paragraph 6 of the claimants’ Reply, the 4th and 5th defendants deny that Otu Efa Otu Ukpong Ema Atai Iboku, a.k.a. Otu Mesembe had five (5) children and state that Otu Efa Otu Ukpong Ema Atai lboku, a.k.a. Out Mesembe had seven (7) children namely, Iyo Otu (M); Efa Otu (M); Esu Otu (M); Ewa Otu (M); Nnameti Otu (M); Ukpa Otu (F) and Mbo Otu (M). Mbo Otu did not marry another man named Ntoe Inok as that would have amounted to gay marriage which is a serious taboo in Efik land.
4. In response to paragraph 7 of the Claimants’ Reply, the 4th and 5th Defendants aver that the 4th defendant is the great grandson of Etubom Edet Ukpong Mbo Otu of Adiabo Ikot Mbo Otu. The 4th and 5th defendants further state that the genealogy chart of Otu Mesembe as produced by the Late Obong of Calabar, Edidem Otu Ekpenyong Efa IX in a memo dated 30th October, 1980, only show and relates to Adiabo Akanni Obio.”
The 1st Respondent’s statement on oath was in line with the 1st – 5th Respondents pleadings above and Exhibit “11”, the curriculum vitae of the 1st Appellant was put in evidence by them in support of their case.
The evidence of the 2nd Appellant in the further witness statement on oath was also in line with the Appellants pleadings and Exhibit “21”, which is a genealogical chart of the 1st Appellant, was put in evidence. Exhibit “21” is the same as the genealogical chart attached to the Exhibit “11” tendered by the 1st – 5th Respondents. The parties have therefore both relied on the 1st Appellant’s genealogical chart put in evidence by them in proof of their respective cases on the descent of the 1st Appellant. Being documentary, the chart remained permanent, authentic and so more reliable since it is neither transient nor subject to distortion. It speaks for itself and so more superior than oral testimony of witnesses as to what its contents are. In law, it is said to be the hanger on which the oral evidence would be hung for assessment or evaluation and cannot be contradicted by such oral evidence. See Guoara Sec. & Finance Ltd. v. T.I.C. Ltd. (1999) 2 NWLR (Pt. 589) 29; UBN v. Ozigi (1994) 3 NWLR (Pt.333) 385; Opigo v. Yukwe (1997) 6 NWLR (Pt. 509) 428 Umaru v. Ochiogbo (1993) 6 NWLR (Pt. 298) 217. In these premises, the oral evidence of any of the parties whether challenged or not under cross examination would be incapable of contradicting the contents of Exhibits “11/21” on the genealogical chart of the 1st Appellant.Very clearly, a careful and dispassionate look at the genealogical chart of the 1st Appellant shows that from Ukpong Atai at the top of the chart through Mbo Otu (M) Adiabo Ikot Mbo Etubom Ukpong Mbo Otu (M), Etubom Otu Ukpong Mbo Otu (M), Abasi Otu Ukpong Mbo Otu (M); Etubom Okon Abasi Otu Ukpong Mbo Otu (M) to Edidem Ekpo Okon Abasi Otu Ukpon Mbo Out (M); the 1st Appellant, are all male and so of agnate descent. This is “clear as crystal” from the chart on which both parties relied at the trial before the High Court in support of the respective cases they presented on the genealogy of the 1st Appellant. That is the legal and more cogent and reliable piece of evidence than the ipse dixit of the witnesses who testified at the trial on the issue. With this piece of evidence before the High Court, it was wrong in law for that Court to rely on the oral evidence of 1st Respondent that the 1st Appellant was of cognate and not agnate descent merely on the ground that the evidence was not challenged by the Appellants under cross examination and so deemed admitted. If there was no documentary evidence on the issue relied on by the 1st – 5th Respondents themselves, and the Appellants did not challenge and controvert the evidence of the 1st – 5th Respondents that the 1st Appellant was of cognate and not of agnate descent, the application of the principle of law on the evidence would have been correct and proper. With the chart in Exhibits “11/21”, the application of the principle to the 1st Respondent’s evidence on the genealogy of the 1st Appellant was an error in law by the High Court. This is my finding.
In the result, my resolution of issue 5 is that it was the 1st Appellant who by evidence is of agnate descent and not the 1st Respondent that was traditionally qualified to be proclaimed and crowned the Obong of Calabar.
Issue 6 was whether the 1st Respondent was not given a fair hearing in the process of the selection of the Obong. The submissions by the learned SAN for the Appellants is that the 1st Respondent was afforded a fair hearing in the selection since despite his non-qualification, he was allowed to participate in the entire process up to the final stage at the palace of the Obong. He said the Etuboms’ Council of the Obong’s Palace had in response to the protest of the 1st – 5th Respondents in Exhibit “6/18”, written Exhibit “5/17” to show fair play and so it was not true that the Council refused to entertain the complaint. In the alternative, he argued that the Etuboms’ Council being administrative, only needed to observe and comply with the principles of natural justice in the selection process, relying on Baba v. N.C.A.T.C. (1991) 5 NWLR (Pt. 192) 388 at 415-6. It was submitted that the Council had done so since the 1st Respondent was given the opportunity to participate in the process of the selection. Submission on whether the 1st Appellant chaired the screening of the 1st Respondent by the Western Calabar Council were made and it was argued that the issue of bias or real likelihood of bias was raised suo motu by the High Court. Furthermore, it was the contention of the learned silk that since the contest was open to all Etuboms in Western Calabar, the 1st Appellant was entitled to vie for the Obongship stool and was not precluded from the contest because he was Chairman of the Screening Committee of Etuboms.
The learned Senior Council for the 1st – 5th Respondents had submitted on the issue which was his issue 2, that their grouse in the case centres around fair hearing though they used the term, “I repugnant to natural justice, equity and good conscience” in their pleadings. He said that it was the Western Calabar Council chaired by the 1st Appellant that agreed and ceded the right to contest for the Obong to Ikoneto and that it was after the screening of 1st Respondent that he turned himself into a candidate and was purportedly screened by the 2nd Appellant who declared him most eligible and disqualified the 1st Respondent. It was his submission that the process was faulty and repugnant to good conscience and that the High Court was right to say that it constituted bias or real likelihood of bias. The learned SAN said the Appellants who claimed that the 1st screening was cancelled did not invite the 1st Respondent for the second screening but wrote a report including his candidacy cannot be said to have been fair to the 1st – 5th Respondents, relying on the Secretary, Iwo Central Local Government v. Adio (2000) 8 NWLR (Pt. 667) (no page provided). It was argued that the ordinary man will leave the impression that the process was not fair and we were urged to affirm the decision of the High Court that the 1st Respondent did not receive a fair hearing.
The concept of the principle of fair hearing as guaranteed by our constitution has its origin in the twin pillars of natural justice of hear the other side and one should not be a judge in his own cause, coined in Latin as “au di alterem partem and nemo judex in causa sua”. The right to a fair hearing as guaranteed by the provisions of Section 36(1) of the Constitution is in respect of the determination of the civil rights and obligations of a person by a court of law. Generally, a body exercising powers which are of merely advisory, deliberative, investigative or conciliatory nature or character or which do not have legal effect until confirmed by another body or which is involved only in making a preliminary decision or recommendation is not acting in a judicial capacity and so is not strictly bound by the provisions in its proceedings. See Military Governor of Oyo State v. Adekunle (2005) 3 NWLR (Pt. 912) 294. However, the judicial attitude has always been that if the rights and obligations of a person are to be determined by other bodies or institutions which are not courts of law, then such bodies or institutions of whatever nature, description or designation should be guided by the principle of fair hearing and must adhere to the principles of natural justice. See D. O. v. Queen (1961) SCNLR 83; Adedeji v. Police Service Commission (1968) NMLR 102; Hart v. Military Governor of Rivers State (1976) 11 SC 210; Tionsha v. JSC Benue State (1997) 6 NWLR (Pt. 508) 307 at 322; Baba v. N.C.A.T.C. (supra). One of the twin pillars of natural justice, i.e., one should not be a judge in his own cause, is the source of the rule of bias or real likelihood of bias in the determination of a person’s civil rights and/or obligations even by bodies or institutions other than the courts of law.
Fairness requires that a person, who is tainted by the likelihood or actual bias on grounds that are factual, should not take part in the decision making process in matters over which he had interest to serve and protect. The test of real likelihood of or bias is that there must be circumstances from which a reasonable person would think it likely or probable that the adjudicator or decision maker would or did in fact, favour one side unfairly. Factors which would show real likelihood of or bias include:
“(a) Hostility or strong personal animosity towards a party or land.
(b) Personal friendship, strong and close family or professional relationship. See Olue v. Enenwali (1976) 2 SC 23; LPDC v. Fawehinmi (1985) 2 NWLR (Pt. 7) 300; Akoh v. Abuh (1988) 3 NWLR (Pt. 85) 696; Yabugbe v. C.O.P. (1992) 4 NWLR (Pt. 234) 152; Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt. 622) 290 at 355; Kenon v. Tekam (2001) 14 NWLR (Pt. 732) 12.”Now the process for the selection of a new Obong was “kick started” by the undated letter from the Palace of the Obong of Calabar, Etuboms’ Council, addressed to the Western Calabar Traditional Rulers Council, c/o The 1st Appellant which was admitted in evidence as Exhibit “3A” and “3B”. The Western Calabar Council with the 1st and 2nd Appellants as Chairman and Vice Chairman respectively, resolved to cede the right to present a candidate for its consideration in the selection process of the new Obong, to Ikoneto. Ikoneto presented the 1st Respondent and one other person, Etubom (Commander) Nsa Ani Ita as candidates and they were screened by the Western Calabar Council; Screening Committee chaired by the 2nd Appellant. The 1st Respondent was presented by his royal family in Esen Ikoneto to Western Calabar to contest for the Obongship as required by the provisions of Exhibit “1/20”. Under Issue 3, I have found that after Ikoneto failed to comply or meet the conditions stipulated by the Western Calabar Council in Exhibit “2B” to present a candidate for the selection process, the Council’s right to give the opportunity to the other houses in Western Calabar was exercisable by it. I also found that there was no evidence whatsoever that any of the other houses were notified and invited like Ikoneto to present candidates for the selection process after Ikoneto lost the exclusive right ceded to it. However, even though Ikoneto did not meet the dateline for it to submit a candidate to Western Calabar Council, the case of the Appellants is that the two (2) candidates from Ikoneto were screened all the same. The 2nd Appellant who was the Chairman of the screening had said in evidence, under cross-examination, that the 1st screening of the 1st Respondent was cancelled and yet there was no evidence that the 1st Respondent was notified of the cancellation of his screening and invited and given the opportunity for a second screening by the 2nd Appellant. How the 1st Appellant became a candidate and how he was screened as such a candidate by his vice; the 2nd Appellant as reflected in the report to the Etuboms/Palace, Exhibit “13B”, was not put in evidence at the trial and so remained unknown. Whether or not and when, if the report of the screening exercise conducted by the 2nd Appellant for the 1st Appellant was presented to and was considered by the
Western Calabar Council which comprised of eight members at the material time from the evidence before the High Court, for approval and submission to the Etuboms’ Counsel of the Palace of the Obong, was not placed before the High Court by the Appellants. From the only evidence available to the High Court, the only impression a reasonable man would have of the process by which the 1st Appellant became a candidate not nominated by his ruling house, who was screened by his vice Chairman and was furtively recommended as the most suitable candidate for selection as the Obong of Calabar, is that the Appellants used their positions in Western Calabar Council unfair to the disadvantage of the 1st Respondent in breach of the pillar of natural justice that a person should not be a judge in his own cause. Since the evidence of the 2nd Appellant was that the 1st screening of the 1st Respondent was cancelled and he was not notified of the cancellation and afforded the opportunity to be screened again when another screening exercise was conducted by the 2nd Appellant on another date for other candidates, the 1st was undoubtedly denied the right to be heard in the selection process that led to the proclamation of the 1st Appellant as the Obong of Calabar. Even the protest by the 1st – 5th Respondent on the irregularities in the process, as per Exhibit “6” was without any concern to fairness, disregarded by the Etuboms’ Council of the Palace of the Obong, who are the king makers by Exhibit “5” which did not answer or respond to the complaint in respect of the screening but simply replied the request for the presentation of 1st Respondent for capping to the Etuboms, Council. In these circumstances, how can the Appellants in good conscience, claim and maintain that the 1st Respondent was afforded a fair hearing or that the selection process which ended in the proclamation of the 1st Appellant did not breach the essential requirements of natural justice merely on the ground that the name of the 1st Respondent was used by them in the process as having participated therein. No, natural justice for a reasonable man, requires that the Appellants provides factual basis and the evidence that indeed the 1st Respondent was afforded the opportunity to be heard and that to controvert the facts and evidence of the 1st – 5th Respondents and even by the Appellants, show that the Appellants were not judges or adjudicators in their own cause. Let me point out that the positions occupied by the Appellants in Western Calabar would not ipso facto disqualify any of them from being properly nominated by their respective families and participation in the selection process of an Obong of Calabar. But the way and manner they used their positions in the process under consideration as demonstrated earlier, was contrary to the dictates and fundamentals of natural justice. For that reason, I find myself in agreement with the High Court and learned Senior Counsel for the 1st – 5th Respondents that for breaching the 1st – 5th Respondents’ right to fair hearing and essential elements of natural justice, the selection was not only defective but vitiated by the breach. I accordingly resolve the issue in favour of the 1st – 5th Respondents.
The next of the Appellants’ issues is whether the High Court was right to have rejected the documents tendered by them thereby occasioning a miscarriage of justice. The submissions of the learned SAN for the Appellants are that the documents; Attendance Register of the Etuboms’ Council of the palace of the Obong from 2006-2008 and a photography of a certified copy of a court process in suit No.FHC/C/M42/2010, were tendered in support of the Appellants’ and 2nd set of Respondent’s case that the 1st Respondent was not qualified to vie for the Obong’s stool for he never attended the meetings of the Etuboms’ Council and that he is not a blood descendant of the founding fathers of the Efik people. He said the documents would have strengthened the Appellants’ case on the non-qualification of the 1st Respondent and so the rejection had occasioned them miscarriage of justice since the High Court’s decision on the qualification of the 1st Respondent would have been different. The case of Ogualaji v. Attorney-General, Rivers State (1997) 6 NWLR (508) 209 at 222; inter alia, was cited on the submission and Buhari v. Obasanjo (2005) 13 NWLR (Pt. 941) 1 at 203 on the law that evidence elicited under cross examination on issues joined is not inadmissible merely because it is not supported by the party’s pleadings. The High Court was said to have erred in rejecting the Attendance Register because it was supported by the pleadings of the 2nd set of Respondents and we were urged to uphold the Appellants, submissions.
Mr. Agi, SAN for the 1st – 5th Respondents had submitted that the High Court was right in rejecting the Attendance Register because it was not a public document and not signed and that it was tendered after the 1st – 5th Respondents had finished their cross examination of the witness through whom it was tendered, so had no opportunity to test the veracity of his evidence. In addition, he said the court process sought to be tendered was not pleaded by any of the parties and not front loaded.
Finally, it was submitted that the law is trite that only documents pleaded and relied on by the parties can be used by a court in giving judgment and we were urged to affirm the decision of the High Court rejecting the documents.
This issue appears to have been effectively subsumed by my finding on the 1st Respondent’s qualification to vote and be voted for as the Obong of Calabar. All the same, let me say that the general position of evidence law is that the admissibility of any piece of evidence in judicial proceedings, is govern by its relevance to the issues to be decided in the proceedings. In the case of Fawehinmi v. NBA (No.2) (1992) 2 NWLR (Pt. 105) 558 at 583, the Supreme Court had put the position of the law thus:
“Ordinarily, admissibility of evidence is governed by Section 6 of the Evidence Act. Once a piece of evidence is relevant, it is admissible in evidence irrespective of how it was obtained.”
See also Oyediran v. Alebiosu II (1992) 6 NWLR (249) 550 at 559; Torti v. Ukpabi (1984) 1 SCNLR 214; N.A.B. v. Shuaibu (1991) 4 NWLR (Pt. 186) 450 at 465; Agbahomovo v. Edinyegbe (1999) 3 NWLR (Pt. 594) 170 at 183. However the apex Court had also recognized that relevancy is not the only test or factor that regulates or governs the admissibility of a piece of evidence, particularly documentary evidence in cases such as Oyediran v. Afebiosu II (supra) where it held at page 559 that in civil proceedings, for a document to be admissible in evidence, it must not only be pleaded, it must also be relevant. See also Suberu v. State (2010) 8 NWLR (Pt. 1187) 586 at 640 where the apex Court stated that:
“Relevancy is not the only yardstick or test for admissibility of evidence. A document may be relevant and still be excluded if there is in existence a law, like the provision of Section 27(2) of the Evidence Act, which renders it inadmissible.”

It is an established rule of pleadings that for a document to be admissible in evidence in a case, it or at least relevant facts in respect of which it is evidence must be pleaded by the parties to the case. Documentary evidence needs not be specifically pleaded to be admissible in evidence so long as the facts by which the documents are covered or related are pleaded expressly since pleadings contain only facts and not the evidence by which they are to be proved. See Ipinraiye v. Orukotun (1996) 6 NWLR (Pt. 453) 148; Bamgboye v. University of Ilorin (1991) 8 NWLR (Pt. 207) 1; Ezemba v. Ebeneme (2004) 7 SC (Pt. 1) 45; Arabambi v. Advance Bev. Ind. Ltd. (2005) 12 SC (Pt. 1) 60; (2005) 19 NWLR (Pt. 959) 1; Brawal Shipping Nig. Ltd. v. EL Onwadike Co. Ltd. (2000) 6 SC (Pt. II) 133.Now, on what grounds were the two (2) documents tendered by the Appellants rejected by the High court. I would start with the Attendance Register. In its ruling on the admissibility of the Register, which is at pages 413-415 of the record of appeal, the High court held that it was inadmissible on the grounds, namely:
“(a) That is was not a public document within the provisions of Section 109 of the Evidence Act as interpreted in judicial authorities.
(b) That it was a photocopy of a certified copy; and
(c) That it was tendered after the 1st – 5th Respondents had finished the cross examination of the witness through whom it was tendered and would have no opportunity to cross examine the witness on it.”
I have observed that the learned SAN for the Appellants did not in his submission on the Register challenge any of the above grounds which are the reasons or ratio decidendi for the rejection of the Register in evidence by the High Court. The High Court did not in the ruling say that the Register was inadmissible in evidence because it was not pleaded but for the above reasons. Arguments against the rejection of the Register should address the ratio decidendi of the decision to reject it and not on reason not used for the decision. As stated by the apex Court in the case of Suberu v. State (supra) a document may be relevant (in the case of the Register by being pleaded) but still be excluded from being admitted in evidence if there exists a provision in the Evidence Act which renders it inadmissible. The High Court decided that the Register was inadmissible for inter alia, not being a public document under Section 109 of the Evidence Act and the learned Counsel has not challenged that position, reason or ground. Since the reasons for the rejection of the Register in evidence by the High Court have not been challenged by the Appellants, I find no reason to warrant my interfering with that decision.
Furthermore, since the learned Counsel had said that the Register was only meant to strengthen the Appellants’ case on the non-qualification of the 1st Respondent to vote and be voted for as the Obong, because of the finding by the High Court that the Appellants had waived the non-qualification, the admission of the Register would not have changed its decision on it. For that reason, no miscarriage of justice was occasioned to them by the rejection of the Register.
The next document; a copy of court process in a suit filed before the Federal High Court, was like the Attendance Register, said to be for strengthening the Appellants’ case on non qualification of the 1st Respondent, this time on the ground that he was not a blood descendant of the founding fathers of the Efik people.
The High Court had in its ruling rejecting the process stated thus:-
“Even though there is no objection to the admissibility of the document sought to be tendered, I am not convinced that the document is admissible in law. Reason being that we now operate a system of front-loading by which all processes intended to be used in all civil proceedings are filed before commencement of trial. See Or. 7 R. 2(1) and Or. 17 R. 21(1) of our High Court (Civil Procedure) Rules, 2008. I had asked learned counsel for the 1st, 3rd defendants whether the document sought to be tendered is referred to anywhere in the pleadings of any of the parties or whether a copy of same was listed or attached to any processes in these proceedings as a document to be relied on at the trial, and he would not give me a clear cut answer.
I am satisfied that no reference was made to the document in any of the pleadings and it is not listed in nor a copy attached to any of the process in this matter.
I do not think that it is a document that can be admitted in the circumstance for whatever it is worth. A document not admissible in law cannot be admissible even by consent of all counsel. I will and hereby reject same. It shall be marked, “Tendered but Rejected No.2.”
Briefly, the process was rejected because it was not frontloaded nor pleaded in the pleadings of the parties. The learned SAN for the Appellants did not in his submissions on the issue, challenge or even dispute the reasons given by the High Court for rejecting the process except to highlight that there was no objection from other counsel to the admission of the process. The High Court had stated in the above ruling that the process is not admissible in law and cannot be admitted even by consent of all counsel. That is a correct restatement of the law, which is now firmly established and so very well known to be beyond argument. Any piece of evidence, documentary or otherwise rendered inadmissible by the provisions of a law or established principles of law, cannot be made admissible, either by consent or non-objection of the parties. See Okonji v Njokanma (1991) 7 NWLR (202) 131; Hassan v. Maiduguri Mgt. Committee (1991) 8 NWLR (212) 738; Omega Bank Nig. Plc. v. O.B.C. Ltd. (2005) 1 SC (Pt. 1) 49; Oladipo v. M.L.G.A. (2010) 5 NWLR (1180) 117; Goodwill & Trust Investment Ltd. v. Will & Bush Ltd. (2011) 34 MJSC, 1. As stated earlier, it is a rule of pleadings that for a document to be admissible in evidence it must either be pleaded or facts to which it is be evidence be specifically set out in the pleading so as to give adequate and reasonable notice of the case being presented, to the other party. After all, one of the main objects of pleadings is to give such notice so as to enable a party know what case he is expected to meet at the trial of a case. This is more in the front loading procedure provided for by the Rules of the High Court which requires that all documents intended to be used and relied on by the parties in a case be filed and served before the oral trial of the case. The process of the Federal High Court tendered was not pleaded and not frontloaded as required by the Rules of the High Court and so its decision to reject it cannot easily be faulted.
That apart, the Appellants did not deny the averment of the 1st – 5th Respondents in paragraph 1of their Amended Statement of claim which was in the following terms:-
“1. The 1st Plaintiff, a Chartered Accountant, Industrialist and the Etubom of Ufok Ikot Nkpor, Mbiabo lkoneto, one of the Efik Royal Families, is entitled to contest for and be selected for the Royal stool of the Obong of Calabar.”
It was due to the admission by the Appellants of the above averment that they sent an invitation to the 1st Respondent (who was the 1st claimant) in the High Court to come for screening as a candidate in the selection process of the Obong vide Exhibit ’10’.
In exhibit ’10’, the Western Calabar Council which the Appellants chaired, addressed the 1st respondent as an Etubom. The exhibit is instructive and better speak for itself, it says:-
“EFIK IBOKU ESIT EDIK TRADITIONAL COUNCIL
(Western Calabar)
c/o Adiabo Ikot Mbo Otu, Odukpani Local Government Area
March 18, 2008.
Etubom (Dr.) Anthony Ani Eniang Offiong (MON)
Ufok Ikot Nkpor, Mbiabo Ikoneto,
Odukpani Local Government Area.
Respected Etubom,
INVITATION FOR SCREENING AS A CANDIDATE FOR THE OBONGSHIP STOOL
The Etuboms Conclave of the Efik Iboku Esit Edik Council had at its meeting of 17th March, 2008 held at Adiabo Ikot Mbo Otu, considered your nomination as a candidate from Ikoneto for the Stool of the Obong of Calabar and has approved that you be invited for screening as follows:
Date: Wednesday, March 19, 2008.
Venue: Clan Head Conference Hall, Adiabo Ikot Mbo Otu, Odukpani Local Government Area.
Time: 10.00 a.m. prompt.
Please bring along several copies of your genealogy and other relevant documents. You will be expected to present nkpo ntot to the Council before the commencement of your screening.
Thank you.
Yours faithfully,
FOR: EFIK IBOKU ESIT EDIK COUNCIL
SGD:
Chief Esien E. Ekpenyong
Secretary.
The above express admission by the Appellants that the 1st Respondent is an Etubom of an Efik Royal house entitled to contest for and participate in the process of the selection of an Obong is very clearly a sharp contradiction of the position they sought to tender the court process as evidence of, which is that the 1st Respondent was not a blood descendant of any of the founding fathers of the Efik people. A party is supposed to be consistent in the case he presents before a court for determination and should not be seen to either probate and reprobate or to speak from both sides of his mouth at the same time on an issue in the case. The Appellants are bound by the pleadings which they admitted expressly, by inference or presumption of the law or rules of practice and so cannot be permitted to attempt to adduce evidence which tends to contradict such an admission. See generally, Dabo v. Abdullahi (2005) 2 SC (Pt. 1) 75; Buhari v. Obasanjo (2005) 7 SC (Pt. 1) 1 on the effect of leading evidence contrary to the pleadings and Oradoyin v. Arowolo (1989) 4 NWLR (114) 172; Orizi v. Anyegbunam (1978) 5 SC, 21; Edsebiri v. Edebiri (1997) 4 NWLR (498) 168, on the law that a party should be consistent in the presentation of his case.In the above premises, even if the said court process was admitted in evidence, it would not have changed the decision of the High Court on the qualification of the 1st Respondent.
Once again, no miscarriage of justice was occasioned by the rejection of the court process. In the result, I find no merit in the submissions of the Appellants on the issue and resolved it against them.
Lastly, the learned SAN for the Appellant had adopted all the submissions made in respect of the above issues, in respect of his last issue and urged us to exercise the power of the court to review the evidence before the High Court. He referred to and relied on Osunjemila v. Ajibade (2010) 11 NWLR (1206) 559 at 579 and Oyewole v. Akande (2009) 15 NWLR (1163) 1 19 at 140. The learned SAN for the 1st – 5th respondents had urged us to affirm the findings of the High Court.
As can be noticed, I have dealt with the issue of the evaluation of the evidence of the parties before the High Court in the course of my consideration of the issues 1 – 7 above. I have made findings on when the evidence was properly evaluated by the High Court on the issues and when it was not so evaluated in respect of each of the issues before I resolved them the way I did. That has fully, completely and effective resolved the substance of this issue No. 8 and I abide by the review and findings made on the evidence placed before the High Court in those issues, in resolution the issue 8.
In the final result, since issues 1, 2 and 5, were resolved in favour of the Appellants, I allow their appeal in part. Consequently, I make orders as follows:-
1) That the finding by the High Court that the Appellants had waived the requirement of capping and induction of an Etubom by the Obong of Calabar into the Etuboms’ Council of the Obong’s Palace, as a qualifying factor to vote and be voted for as the Obong, in favour of the 1st Respondent and that the Appellants were stopped from raising the issue of the qualification of the 1st Respondent in the process of the selection of Obong of Calabar, is hereby set aside.
2) That the 1st Respondent who admittedly was not capped/inducted into the Etuboms’ Council of the Palace of the Obong by the Obong at the time of the selection process of the Obong of Calabar, was not traditionally qualified and eligible to vote and be voted for as the Obong of Calabar under Exhibit 1/20.
3) That the 1st Appellant was traditionally qualified and eligible to vote and be voted for as the Obong of Calabar under Exhibit 1/20 at the time of the selection process.
4) That for the breach of principles of natural justice and the 1st Respondent’s right to fair hearing, the selection process conducted by the Appellants which culminated in the selection and proclamation of the 1st Appellant by the Etuboms Council represented by the 2nd set of Respondents, is hereby set aside.
5) The selection and proclamation of the 1st Appellant as the Obong-elect of Calabar by the Etuboms Conclave of the Palace of the Obong of Calabar on the 31st March, 2008, is hereby set aside.
6) That as a further necessary consequence of my orders (4) and (5), the Etuboms’ Conclave of the Palace of the Obong of Calabar, whose mandate it is under Article 5(a) (ii) (iv) of Exhibit 1/20, to do so, is hereby ordered to conduct another process of selecting a new Obong of Calabar, in accordance with the provisions of Exhibit 1/20 and in strict compliance with the rules of natural justice.
Parties shall bear their respective costs of prosecuting the appeal.

UZO NDUKWE-ANYANWU, J.C.A.: I have had the privilege of reading in draft form, the judgment just delivered by my learned brother Mohammed Lawal Garba, JCA. I am in total agreement with his detailed reasoning and the final conclusions reached therein. I have nothing more to add. I also abide by all the orders contained in the lead judgment and adopt them as mine.

ONYEKACHI A. OTISI, J.C.A.: I read the draft copy of the Judgment just delivered by my learned Brother, Mohammed Lawal Garba J.CA. I am in complete agreement with his consideration of the issues formulated for determination; and, with the conclusions. I will only make few comments for emphasis.
In Pam v. Mohammed (2008) 5-6 SC. (Pt. 1) 83, the Supreme Court, per Oguntade, JSC said:
“The question of fair hearing is not just an issue of dogma. Whether or not a party has been denied of his right to fair hearing is to be judged by the nature and circumstances surrounding a particular case. The crucial determinant is the necessity to afford the parties equal opportunity to put their case to the court before the court gives its judgment… A complaint founded on a denial of fair hearing is an invitation to the court hearing the appeal to consider whether or not the court against which a complaint is made has been generally fair on the basis of equality to all the parties before it.”
In Attorney-General, Rivers State v. Ude (2006) 6-7 SC. 54, Dahiru Musdapher, JSC (as he then was) succinctly said:
“Now fairness is the determining factor for the application of principles of natural justice. In other words, natural justice is fair play in an action.”

The law attaches great importance to the rule of fair hearing even in instances when the rights and obligations of a person are to be determined by bodies or institutions which are not courts of law. Decisions reached by such bodies should be guided by the principles of natural justice. On the universality of the application of the principles of natural justice, Kelly, L.C.B., in 1874 in Wood v. Wood (1879) L.R. 9 Ex. 190 at 196 stated that the rule of audi alteram partem:
“is not confined to the conduct of strictly legal tribunals but is applicable to every tribunal or body of persons invested with authority to adjudicate upon matters involving civil consequences to individuals.”
See also: Adedeji v. Police service commission (1967) ANLR 72: State Civil Service Commission v. A. I. Buzugbe (1984) 7 S.C. 19 at 42, 43; Obadara v. Commissioner of Police (1965) N.M.L.R. 39 of 44.
It follows therefore that a hearing which is in breach of the twin pillars of fair hearing: audi alteram partem or nemo judex in causa sua, renders the hearing liable to be set aside or declared invalid by the court. The court will treat the situation as if such a hearing never in fact took place: See: Opeyemi v. Commissioner for Local Government; Kwara State (1992) 2 NWLR (Pt. 226) 661 or 685.

Fair hearing lies in the procedure followed in the determination of the case, not in the correctness of the decision. Accordingly, even where out of proceedings conducted in breach of fair hearing, a correct decision is reached, that correct decision will be thrown out; or, declared a nullity in favour of the breach of fair hearing. See: Ceekay Traders Ltd. v. General Motors Co. Ltd. (1992) 2 NWLR (Pt. 222) 132; University of Nigeria Teaching Hospital Management Board v. Nnoli (1994) 8 NWLR (Pt. 363) 376. And, no rights under law can flow from an act or decision which is pronounced or declared a nullity. Rights under the law cannot stand on nothing.The evidence before the trial court was that after the Obong of Calabar become traditionally indisposed, the process of selection of a new Obong commenced. The Etuboms’ Council by virtue of Article 5(a) (iv) of Exhibit 1/20, the Constitution, was the body charged with the responsibility:
iv) To conduct the selection, proclamation, traditional installation and coronation of a suitable and rightful successor to the Efik throne after the demise of an Obong or whensoever the throne otherwise becomes vacant, in accordance with traditional practice and the guiding principles and rules for the selection of Obong in line with the existing accord of 1970 or any such as nay be agreed thereafter.”
The Etuboms’ Council wrote Western Calabar Traditional Rulers’ Council, asking it to present a candidate. The 1st Appellant was Chairman of Western Calabar Traditional Rulers’ Council, while the 2nd Appellant was its vice-chairman. The Western Calabar Traditional Rulers’ Council had decided to give Ikoneto the opportunity of presenting a candidate for consideration in the selection exercise for the new Obong.
Ikoneto was tardy in its selection exercise. They were written a letter, Exhibit 2B, directing them to present one candidate for the exercise; and informing them that if no candidate was presented by them at 4.00pm on March 17, 2008 in the meeting hall at Adiabo, other houses in Western Calabar would be given opportunity to so present. Ikoneto responded in writing, by letter was dated March 19, 2008, re-affirming that the 1st Respondent was their candidate. This said letter however came two days later than the time limit given to Ikoneto; and, they had presented two candidates, the 1st Respondent and one Etubom (Commander) Nsa Ani Ita, rather than one candidate, as directed.
Notwithstanding these lapses, their candidates were screened by the Western Calabar Council Screening Committee, headed by the 2nd Appellant. It is the position of the Appellants that this screening exercise was cancelled. But, the 1st Respondent was not informed, and, was not invited to any further screening.
However, after the initial screening exercise, the 1st Appellant, who was the Chairman of the Western Calabar Traditional Rulers’ Council, became a candidate. The reason given was that Ikoneto was out of time. The Appellant was purported to have been screened by the 2nd Appellant, the Vice Chairman, and thereafter declared the most eligible; the 1st Respondent being disqualified. The 1st Appellant became the candidate selected from Western Calabar and presented to the Etuboms’ Council for consideration for the Royal Stool.
The 1st Respondent was not informed of any other screening exercise. And, if the Western Calabar council had acted having regard to the non-compliance with the conditions given in their letter to Ikoneto, there is no evidence that other houses were duly informed and given opportunity to similarly present candidates.
Nnaemeka Agu, JSC (of blessed memory) said in Kotoye v. CBN (1989) 1 NSCC 238:
“Fair hearing has been interpreted by the courts to be synonymous with fair trial and as implying that every reasonable and fair-minded observer who watched the proceedings should be able to come to the conclusion that the court or other tribunal has been fair to all the parties concerned see on this Mohammed v. Kano N A (1968) 1 All NLR 424 at p 426. There are certain basic criteria and attributes of fair hearing, some of which are relevant in this case.
These include:
(i) that the court shall hear both sides not only in the case but also in all material issues in the case before reaching a decision, which may be prejudicial to any party in the case. See Sheldon v. Bromfield Justices (1964) 2 Q B 575, at p 578;
(ii) that the court or tribunal shall give equal treatment, opportunity, and consideration to all concerned. See on this Adigun v. Attorney-General, Oyo State & Ors. (1987) 1 NWLR 678
(iii) that the proceedings shall be held in public and all concerned shall have access to and be informed of such a place of public hearing; and
(iv) that having regard to all the circumstances, in every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done: R v. Sussex, Justices, Ex-parte McCarthy (1924) 1 KB 256 at p 259; Deduwa & Ors. v. Okorodudu (1976) 10 S.C. 329.
In my considered view, a reasonable and fair-minded observer who observed and followed the activities of the Western Calabar Screening committee, headed by the 2nd Appellant; which result threw up the 1st Appellant, the Chairman of the Western Calabar Traditional Rulers, Council as the candidate selected from Western Calaber, would come to the conclusion that the 1st and 2nd Appellants simply used their positions unfairly, to the disadvantage of the 1st Respondent, and any other interested qualified persons.
If the screening exercise to which the 1st Respondent was invited and participated in was cancelled, he ought to have been notified and given opportunity to participate in another exercise.
The selection of the 1st Appellant from the purported second screening exercise for the Royal Stool may in fact have been the most suitable choice. But, fairness or natural justice is more concerned with the procedure followed and not with the correctness or appropriateness of the decision reached.
Where proceedings of a body or tribunal are vitiated by unfairness, the first duty of a court reviewing the decision of such body or tribunal is to set aside the decision, which is a nullity. I believe that this is the fitting order to make in this circumstance. See also: Idakwo v. Ejiga (2002) 12 MJSC 81. Nothing meaningful can be born out of a nullity.
The 1st Appellant, who has been found to be qualified for consideration for selection and installation as Obong, should present himself, with other eligible candidates, for screening as may be appropriate.
For these reasons and for the more comprehensive reasons set out in the Judgment of my learned brother, M. L. Garba, JCA, I also allow this appeal in part.
I abide by all the Orders made in the lead Judgment.

Appearances

Chief Ladi Rotimi Williams, SAN, with Rebecca Tanga (Miss), Esq.,For Appellant

AND

Joe Agi, (SAN), with Emmanuel Sani, Esq., for the 1st set of Respondents (1st – 5th Respondents)

Nella Andem Rabana (Mrs.), SAN, with Ukpong Eba, Esq., Bassey Offiong, Esq., and Eno Edet, Esq., – 2nd set of Respondents (6th – 8th) Respondents.For Respondent

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