H.R.M. MUNENE EFIONG MBUKPA ETA & ORS v. PROF. ITAM HOGAN ITAM & ORS
(2016)LCN/9308(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 31st day of May, 2016
CA/C/323/2013
RATIO
ORDER: NATURE OF CERTIORARI ORDER
A consideration of the entire arguments of counsel for all the sides emphasizes the primacy of a proper understanding of what certiorari is all about.
NGWUTA, JSC defined certiorari thus:
Certiorari is a prerogative order or writ of common law origin available to the High Court in the exercise of its supervisory control over an inferior Court, Tribunal or a body entrusted with the performance of a judicial or quasi-judicial function to ensure that it does not exceed its jurisdiction or commit irregularities thereby making its decision bad on its face. See NWABOSHI v. MILITARY ADMINISTRATOR DELTA STATE (2003) 11 NWLR (Pt. 831) 305 (SC): Arzika v. Governor Northern Nigeria (1961) All NLR 379: Okukpe v. Federal Board of Inland Revenue (1974) 4 SC 93. See STATE v. MONSURAT LAWAL & ORS (2013) 53 NSCQR at 305.
This very apt description implies that a certiorari will only come into play where a judicial or quasi-judicial function is at play.
This was reiterated by the Supreme Court in J.S.C. CROSS RIVER STATE v. YOUNG (supra) also reported in (2013) 56 NSCQR 577 where FABIYI, JSC in his contribution stated thus at 615:
It should be stressed that the power to suspend a person from his employment or to retire a person from service prematurely, as in this matter herein, is a quasi-judicial act as it involves investigation and a determination whether the officer is guilty of an offence or not and as such, amenable to certiorari. See: Odemuyiwa v. Nigeria Railway Corporation (1973) 3 UILR (Pt. 1) 94 at 102; Fatomo v. Lagos State Public Service Commission (1977) 5 SC 51 at 76. PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
TRIBUNALS: DUTY OF BODIES ACTING JUDICIALLY TO EXERCISE THE PRINCIPLE OF FAIR HEARING
It is basic that where a body, whether judicial, quasi-judicial, Administrative or Executive in inception, acts judicially in the sense that it is to determine the civil rights and obligations of a person, or to find him guilty or liable of a fault, he must be given a hearing before the issue can be properly decided. This is as enjoined by the provision of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 – the grundnorm.
Even then, adjudicating bodies like Tribunals, though not expected to act fully like a Court of law, are enjoined in their hearing of matters to act in good faith and fairly listen to both sides before deciding. When an administrative body is acting quasi-judicially, the principles of fair hearing binding on judicial bodies are automatically binding on such bodies. They cannot act arbitrarily or capriciously. PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
EVIDENCE: AFFIDAVIT; EFFECT OF FAILURE OF PARTIES TO REPLY FACTS IN THE AFFIDAVIT
It is trite that in an action contested on affidavit evidence, failure to reply to material facts contained in a counter-affidavit will justify the inference that those averments had been admitted. See DOKUBO-ASARI v. F.R.N. (2009) 37 NSCQR 1146 at 1180, EX PARTE v. ADESINA (1996) 4 NWLR (Pt. 442) 254, ATTORNEY-GENERAL OF ANAMBRA STATE v. OKEKE (2002) 12 NWLR (Pt. 782) 575 and STEPHEN LAWSON-JACK v. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD (2002) 13 NWLR (Pt. 783) 180. PER JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
JUSTICES
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
1. H.R.M. MUNENE EFIONG MBUKPA ETA
(ODIONKA EBUKA VII PARAMOUNT RULER OF EFUTS)
2. H.H. NDABU OBO E. E. OBO J.P.
(CHAIRMAN OF THE EFUR ASSEMBLY)
3. H.H. NDABU (DR.) GODWIN BASSEY
(SECRETARY GENERAL EFUT COMBINED ASSEMBLY) Appellant(s)
AND
1. PROF. ITAM HOGAN ITAM
2. GOVERNMENT OF CROSS RIVER STATE
3. ATTORNEY GENERAL AND COMMISSIONER FOR JUSTICE
4. HONOURABLE JOHN A. EYIKWAJE
5. HONOURABLE EKENG HENSHAW
6. CALABAR SOUTH LOCAL GOVERNMENT Respondent(s)
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment): This is in respect of an appeal against the judgment of the High Court of Cross River State, Calabar Judicial Division delivered by ABUA J. on the 25th September, 2013 dismissing an application for certiorari filed by the appellants in respect of the dispute involving the stool of Muri Munene, the paramount ruler of the Efut Kingdom of cross River State.
Following the dismissal of the said application for certiorari, the appellants invoked the appellate jurisdiction of this Court via a Notice of Appeal filed on the 25th September, 2013 containing 10 grounds.
At the hearing of the appeal, Chief Onyebueke, the learned lead counsel for the appellants adopted his appellants’ brief filed on 19th November, 2013 as well as the appellants’ reply brief filed on the 15th May, 2014 as the arguments of the appellants in this appeal.
For the 1st respondent, his learned counsel Mrs. Asuquo adopted her brief filed on the 10th January, 2014 as the arguments of the 1st respondent in this appeal.
The learned counsel for the 2nd-4th respondents, Mr. Asuquo adopted their
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brief filed on 28th January, 2014 but deemed properly filed and served on the 10th February, 2016 as the arguments of the 2nd -4th respondents in this appeal.
At the instance of the appellants, leave was granted for the appeal to be heard without the briefs of the 5th and 6th respondents who had failed to file any brief despite service of all processes on them.
The appellants submitted five issues for determination as follows:
(1) Whether the appellants filed the affidavit of service as required by Order 40 Rule 5 of the High Court of Cross River State (Civil Procedure) Rules, 2008 and whether the respondents were served with the originating process.
(2) Whether the letter of 18th day of September, 2012 that contained the approval of the Governor can be quashed by a certiorari application.
(3) Whether a Judge can sit on appeal against the judgment of coordinate jurisdiction.
(4) Whether a party is bound to react to every affidavit filed in the Court and whether there are cases pending in Court.
(5) Whether S. 20 and S. 22 of the Traditional Rulers Law Cross River State are applicable to Muri Munene Stool.
These
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issues were adopted by the 1st respondent as well as the 2nd-4th respondents and shall be adopted by me as well in this judgment and attended to seriatim beginning with the first issue.
The first issue is whether the appellants filed the affidavit of service as required by Order 40 Rule 5 of the High Court of Cross River State (Civil Procedure) Rules, 2008 and whether the respondents were served with the originating process.
Chief Onyebueke submitted that contrary to the conclusions of the learned trial Judge, the respondents were duly served with the motion on notice and that the affidavits evidencing same were in the Court’s record for the learned trial Judge to take cognizance of.
He further submitted that even if there were discrepancies in the service, such discrepancies had been cured by the presence and full participation of the 1st to 4th respondents before the Court thereby submitting to the jurisdiction of the Court. He referred to NWANOSIKE v. UDOSEN (1993) 4 NWLR (Pt. 290) 684 at 687, OKESUYI v. LAWAL (1999) 1 NWLR (Pt. 170) 661 at 678, PRINCESS ODU v. FAWEHINMI (2006) ALL FWLR (Pt. 301) 1148 at 1164 and STABILINI VISIONI
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LTD v. EJIKE (2002) FWLR (Pt. 84) 44 at 50-51.
On her part for the 1st respondent, Mrs. Asuquo submitted that the requirement for personal service was mandatory pursuant to Order 40 Rule 5(5) of the High Court of Cross River State (Civil Procedure) Rules and was as such non-negotiable.
She further submitted that the affidavits of service furnished by the appellants were for a different suit thereby indicating conclusively that the motion on notice in the suit in issue was not served and that onus of proving service was on the appellants. She referred to ASIKA & ORS v. ATUANYA (2013) 6-7 MJSC (Pt. 1) 178 at 204 and OLORI MOTORS & CO. LTD v. UNION BANK OF NIG. PLC (2006) 6 MJSC 37 at 57-58.
She concluded by pointing out that the judgment of the learned trial Court was based on the two issues for determination which excluded any issue of non-service.
For the 2nd-4th respondents, Mr. Asuquo on his part similarly argued that failure to serve the motion on notice for certiorari before arguing same renders the motion incompetent and deprives the Court of jurisdiction. He urged the Court to discountenance the judicial
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authorities relied on by the appellant. He referred to ONYEMAIZU v. OJIAKO (2010) ALL FWLR (Pt. 523) 1870 at 1883 and AMADI v. ACHO (2006) ALL FWLR (Pt. 334) 1959.
In his reply brief, Chief Onyebueke submitted that the requisite affidavit was filed by the appellants in satisfaction of the provisions of Order 40 of the Cross River State High Court (Civil Procedure) Rules.
The procedure regulating the application for judicial review by way of certiorari, as in the various prerogative writs, is specialized and must be specifically followed.
In issue here is the requirement for an affidavit by the applicant verifying service on the respondent. In the jurisdiction in issue, this is provided for in Order 40, Rules 5(5) of the Cross River State High Court (Civil Procedure) Rules, 2008 which provides thus:
(5) An affidavit giving the names and addresses of the places and dates of service on all persons who have been served with the motion on notice or summons shall be filed before the motion or summons is entered for hearing and if any person who ought to be served under this Rule has not been served, the affidavit shall state that fact
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and the reason for it and the affidavit shall be before the Judge on the hearing of the motion or summons.
The provisions herein are impari materia with the provisions of Order 37, Rule 5(4) of the Anambra State High Court (Civil Procedure) Rules considered by the Supreme Court in ONYEMAIZU v. OJIAKO (supra) also reported in (2010) 41 NSCQR 159. Therein the apex Court took the firm view that the provisions in issue were mandatory and non-compliance was not an issue of mere irregularity but rather an issue of the competence of the motion on notice.
The contention of the appellants that an affidavit as so required by the Rules of Court was deposed to by the appellants seems credible on perusal of the affidavit contained on page 54 of the record of appeal. The said affidavit was deposed to by the 3rd appellant on the 19th October, 2012, 3 days after leave was granted to them ex parte on the 16th October, 2012 and well before the motion on notice came up for hearing before the trial Court.
These features clearly mark a departure from the scenario presented in ONYEMAIZU v. OJIAKO (supra) where the affidavit in issue was filed months after
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the motion on notice was fixed for hearing and after the hearing of the preliminary objection to the competence of the suit.
In the course of the proceedings before the trial Court, objection filed was withdrawn on the 26th March, 2013 as shown on page 303 of the record of appeal after the trial Court had ordered counsel to receive all processes meant for 1st defendant and that was done in open Court on the 5th of March, 2013 as shown on page 302 of the record of appeal.
Although, the application was considered mainly on the basis of the two issues identified in the judgment, the learned trial Judge also included the issue of service and ruled on the basis thereof that the application was incompetent, a clearly erroneous step. The impact of this error shall be adverted to at the end of this judgment.
Suffice it to say at this stage that I accordingly resolve this issue in favour of the appellants and against the respondents.
The remaining issues are interwoven and the arguments in respect thereof interrelated and shall accordingly be taken together. These said issues are;
?Whether the letter of 18th day of September, 2012
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that contained the approval of the Governor can be quashed by a certiorari application;
Whether a Judge can sit on appeal against the judgment of coordinate jurisdiction;
Whether a party is bound to react to every affidavit filed in the Court and whether there are cases pending in Court; and
Whether S. 20 and S. 22 of the Traditional Rulers Law Cross River State are applicable to Muri Munene Stool.
Arguing these issues, Chief Onyebueke submitted that the letter of 18th September, 2012 was a decision of the 2nd respondent liable to be quashed by order of certiorari which even if an administrative decision was made while various litigations on the subject-matter thereof were pending. He referred to J.S.C. CROSS RIVER STATE v. YOUNG (2013) 11 NWLR (Pt. 1364) 1 at 38.
He further submitted that the learned trial Judge erroneously reviewed the judgment of a Court of coordinate jurisdiction in suit HC/124/2011 which had already made findings on the Muri Munene stool and referred to NPASF AND ANOR v. FASEL SERVICES LTD & ORS (2002) FWLR (Pt. 97) 719 at 742 and HON. ILOBI v. HON. UZOEGWU & ORS (2005) ALL FWLR (Pt. 285) 595 at
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609-616.
Chief Onyebueke further submitted that the need to react to a counter-affidavit would arise where such counter-affidavit relates to the material issues before the Court and pointed out that the pendency of several suits on the subject-matter of the letter of the 2nd respondent sought to be quashed were admitted by the 1st respondent while one of the said suits was pending before the trial Court.
Finally, he submitted that pursuant to Sections 18(1) and 20(1) of the Traditional Rulers Law of Cross River State, 2004, Section 22 of the said law did not apply to the stool of Munene of Efut being a paramount rulership within Calabar municipality.
At the hearing of the appeal he urged the Court to allow the appeal and relied on ONWUZULIKE v. COMM. OF ENVIRONMENT ANAMBRA STATE (1992) 3 NWLR (Pt. 232) 796 at 815-816 and HAJAIG v. HAJAIG (2013) ALL FWLR (Pt. 629) 1049 at 1072.
Mrs. Asuquo for the 1st respondent submitted that the 2nd respondent’s letter in issue was not a decision subject to quashing and that in view of the failure of the 1st appellant to deny attending various meetings summoned to resolve the Muneneship issue
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amicably, leading to the said letter, supports the position of the respondents.
She further submitted that attempts to amicable resolve the subject-matter of a pending suit cannot amount to contempt.
She argued that the learned trial Judge did not review the judgment in issue but appropriately examined it in the con of the position of the appellants that he was confirmed therein as the Muri Munene which claim was found to be false. She referred to OKONJO v. NJOKANMA (1991) 7 NWLR (Pt. 202) 131 at 146, AFRO CONTINENTAL NIG. LTD v. CO-OPERATIVE ASSOC. OF PROFS INC. (2003) 5 NWLR (Pt. 813) 303 and OVUNWO & ANOR v. WOKO & ORS (2011) 7 SCM 209 at 214.
On the failure of the appellants to controvert the counter-affidavit of the 1st-4th respondents she submitted that the issues therein were germane to the point raised by the appellants and related events which led to the letter sought to be quashed and submitted that failure to controvert them rendered the facts raised admitted. He referred to AJOMALE v. YARDUAT (1991) 5 SCNJ 172.
Finally, Mrs. Asuquo submitted that the Kingdom of Muri Munene of Efuts extends beyond Calabar
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Municipality and was subject to the operations of the Traditional Rulers Law of Cross River State as argued by the appellants at the trial and they could not be allowed to make a different case on appeal. She referred to A.G. RIVERS STATE v. A.G. AKWA IBOM STATE & ANOR (2011) 8 NWLR (Pt. 1248) 31 at 54.
For the 2nd-4th respondents Mr. Asuquo submitted that by law a writ of certiorari will only be to quash the decision of an inferior body acting in a judicial or quasi-judicial capacity and not against a mere administrative or ministerial action and that as such Exhibit ‘A’ being merely administrative cannot be quashed by certiorari. He referred to R v. ELECTRICITY COMMISIONERS (1924) 1 K.B. 171 at 204-205, NWAOBOSHI v. MILAD, DELTA STATE (2003) 11 NWLR (Pt. 831) 305 at 318-321 and OBIYAN v. THE MILITARY GOVERNOR OF MIDWESTERN STATE (1972) NSCC 290; (1972) 4 SC 248; (1972) 1 ALL NLR (Pt. 1) 422.
He pointed out that the 1st appellant did not deny being part of a meeting where the decision to select a new Muri Munene was recommended to the Governor for approval and the selection process did not involve the government thereby precluding the
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appellants from complaining.
He further argued that by participating in the meeting where it was agreed that a recommendation be made to the Governor for the selection of a new Muri Munene while his said several suits pended, the 1st appellant had thereby waived or compromised his rights under the said suits and cannot be heard to complain or allege contempt. He referred to ARIORI v. ELEMO (1983) 1 SCNLR 1 at 13 and ABBEY v. ALEX (1999) 14 NWLR (Pt. 637) 148.
He distinguished the facts of the case of J.S.C. CROSS RIVER STATE v. ASARI YOUNG (supra) and submitted that judgments only constituted precedents on the issues decided by them and not mere obiter pronouncements. He referred to ADEGOKE MOTORS LTD. v. ADESANYA (1989) 3 NWLR (Pt. 109) 250 at 26-266.
He submitted that the learned trial Judge did not sit in judgment over a decision of a coordinate Court but merely examined the judgment in issue in view of the contending positions of the parties on whether that judgment did recognize the 1st appellant as the Muri Munene.
He submitted that in a case contested on affidavit evidence, a counter-affidavit raising fresh issues ought
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to be responded to via a further affidavit, failing which the new issues raised would be deemed admitted. He referred to MOKWE v. EZEUKO (2001) FWLR (Pt. 38) 1275 at 1288-1289.
Mr. Asuquo further submitted that the main issue before the Court was whether exhibit A could be subject of quashing via certiorari and that the learned trial Judge only made reference to the Traditional Rulers Law along the way which however did not detract from the correct conclusion even if the reference was erroneous. He referred to MASTERS HOLDINGS (NIG.) LTD v. OKEFIENA (2012) ALL FWLR (Pt. 648) 921 at 940.
He equally submitted that the appellants’ arguments on the applicability of the said law contradicted their position before the trial Court which is unacceptable. He referred to PACERS MULTI-DYNAMICS LTD. v. THE MV DANCING SISTER (2012) LPELR-SC 238/2001 or ALL FWLR (Pt. 618) 803 and SUBERU v. STATE (2010) 8 NWLR (Pt. 1197) 586.
In his reply brief, Chief Onyebueke reiterated his earlier submissions.
A consideration of the entire arguments of counsel for all the sides emphasizes the primacy of a proper understanding of what certiorari is all
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about.
NGWUTA, JSC defined certiorari thus:
Certiorari is a prerogative order or writ of common law origin available to the High Court in the exercise of its supervisory control over an inferior Court, Tribunal or a body entrusted with the performance of a judicial or quasi-judicial function to ensure that it does not exceed its jurisdiction or commit irregularities thereby making its decision bad on its face. See NWABOSHI v. MILITARY ADMINISTRATOR DELTA STATE (2003) 11 NWLR (Pt. 831) 305 (SC): Arzika v. Governor Northern Nigeria (1961) All NLR 379: Okukpe v. Federal Board of Inland Revenue (1974) 4 SC 93. See STATE v. MONSURAT LAWAL & ORS (2013) 53 NSCQR at 305.
This very apt description implies that a certiorari will only come into play where a judicial or quasi-judicial function is at play.
This was reiterated by the Supreme Court in J.S.C. CROSS RIVER STATE v. YOUNG (supra) also reported in (2013) 56 NSCQR 577 where FABIYI, JSC in his contribution stated thus at 615:
It should be stressed that the power to suspend a person from his employment or to retire a person from service prematurely, as in this matter herein, is
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a quasi-judicial act as it involves investigation and a determination whether the officer is guilty of an offence or not and as such, amenable to certiorari. See: Odemuyiwa v. Nigeria Railway Corporation (1973) 3 UILR (Pt. 1) 94 at 102; Fatomo v. Lagos State Public Service Commission (1977) 5 SC 51 at 76.
It is basic that where a body, whether judicial, quasi-judicial, Administrative or Executive in inception, acts judicially in the sense that it is to determine the civil rights and obligations of a person, or to find him guilty or liable of a fault, he must be given a hearing before the issue can be properly decided. This is as enjoined by the provision of Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999 ? the grundnorm.
Even then, adjudicating bodies like Tribunals, though not expected to act fully like a Court of law, are enjoined in their hearing of matters to act in good faith and fairly listen to both sides before deciding. When an administrative body is acting quasi-judicially, the principles of fair hearing binding on judicial bodies are automatically binding on such bodies. They cannot act arbitrarily
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or capriciously.
It is therefore non-negotiable that for a decision of an administrative body to be subject to judicial review by way of certiorari, the administrative body must have acted judicially or quasi-judicially.
The appellants by its application herein sought that the decision of the 2nd respondent before the trial Court as exhibit ‘A’ be quashed. Exhibit ‘A’ is on page 4 of the record of appeal as follows:
18th September, 2012
Our Ref: DCA/CRS/5/10/CS/V./72
H.R.H. Muri Joseph B. Anating Edem (Clan Head, Ekondo)
H.R.H. Muri Prof. Itam H. Itam (Clan Head, Ukem)
H.R.H. Ita Okokon (Clan Head, Ibonda)
H.R.H. Muri Effiong O. Mbukpa (Clan Head, Abua Isu Ekom)
H.R.H. Muri S. B. Edem Eyamba (Clan Head, Mkpara)
H.R.H. Muri Okokon E. Ambo (Clan Head, Abua Calabar)
H.R.H. Muri Ekpenyong Nsa Amambo (Clan Head, Abua Odukpani)
Muri C. A. Edet (Clan Head, Ifako)
FILLING OF THE VACANT STOOL OF MURI MUNENE OF THE EFUTS
Please be informed that His Excellency, the Governor of Cross River State, Senator Liyel Imoke has given approval for the filling of the vacant Stool of Muri Munene of the
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Efuts in Calabar South Local Government Area.
Date: September, 21, 2012
Venue: Palace of the Muri Munene,
Anantigha,
Calabar South Local Government Area
Time: 8.00 A.M.
You are accordingly directed to make yourself available for the important exercise.
Thank you.
SGD
HON. JOHN A. EYIKWAJE
SPECIAL ADVISER
On this letter, the learned trial Judge held on lines 3-5 of page 323 of the record of appeal as follows:
The act complained here was purely administrative duty performed in that sense by way of sending out an informative correspondence only. That does not make the correspondence a decision and I so hold.
I have painstakingly considered the above quoted letter and I cannot by any stretch see how it comes within the purview of a judicial or quasi-judicial decision. It is purely administrative within the competence of the executive arm of government and the instrumentality of a judicial review by way of certiorari sought by the appellants is totally inappropriate in the circumstances.
I must therefore resolve the second issue against the appellants.
It was canvassed for
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the appellants that the learned trial Judge conducted a review of the judgment of coordinate jurisdiction in respect of the judgment in Suit HC/124/2011.
A perusal of the judgment of the trial Court does not support this contention.
The appellants had stated in paragraph 5 of the affidavit in support of the motion on notice on pages 26-45 of the record of appeal specifically on page 26 as follows:
5. That there is also a subsisting judgment of the High Court delivered by His Lordship recognizing the 1st Claimant as the Muri Munene of the Efut Kingdom and also recognizing his right to perform his functions as same, the said judgment of the High Court is hereby attached and marked as Exhibit B.
The counter-affidavit of the 1st respondent together with the attachments thereof can be found on pages 171-204 of the record of appeal and in paragraph 21 thereof on page 175, the 1st respondent deposed as follows:
21. That it is not true that any High Court of Justice recognized the 1st Applicant as the Muri Munene of Efut as averred to by the Applicants in paragraph 5 of the Affidavit in that there was no dispute of any kind in Court
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touching on the issue of Muri Munene between the 1st Applicant and the 1st Respondent. That the 1st Respondent is the only person who is contesting the stool of Muri Munene with the 1st Applicant and there is no judgment of any kind delivered against the 1st Respondent wherein the 1st Applicant was recognized as the Muri Munene of Efut.
The counter-affidavit of the 2nd-4th respondents is on pages 211-221 of the record of appeal and on page 212, they deposed in paragraph 7 thereof as follows:
7. Paragraph 5 of the affidavit is false. It is a fact that the judgment exhibited in paragraph 5 of the affidavit does not concern the 1st respondent who is contesting against the 1st applicant for the office of Muri Munene of the Efuts.
The parties having joined issues on the contents and implications of the judgment in issue, it became incumbent on the learned trial Judge to examine the said judgment and come to a conclusion on the implications for the matter before him. In doing so the learned trial Judge perused the said judgment and stated as follows on pages 327-328 of the record of appeal:
What can be gleaned from the above excerpt is
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that;
I. The Court accepted the fact that the Muri Munene who is the Grand Patriarch of the Efut Nation, is the one that endorses all documents relating to land transfers in Efut Kingdom.
II. That if the 1st defendant therein (1st applicant presently) is said to be the Muri Munene, then ipso facto, he would be the one entitled to execute all land transfers in the Efut Nation and to do so in Efut Abua and Efut Ekondo.
III. That if he is the said grand patriarch and so executes documents of transfer of land, then, he would be in order doing so as was pronounced upon by the Court in Suit No. C/58/53.
The Court never ruled that the 1st defendant therein had indeed been proved evidentially to be the one so empowered.
The above findings did not amount to an exercise in review of the judgment involved and I cannot understand the contrived grouse of the appellants. Contrived in twisting the due exercise of evaluation, the prerogative of a trial Court, into an appellate review for the purposes of making out an argument. This style of advocacy is deplorable.
I find no merit in the arguments of the appellants and I resolve this issue
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against the appellants and in favour of the 1st-4th respondents.
The next issue argued is whether a party is bound to react to every affidavit filed in the Court and whether there are cases pending in Court.
It is trite that in an action contested on affidavit evidence, failure to reply to material facts contained in a counter-affidavit will justify the inference that those averments had been admitted. See DOKUBO-ASARI v. F.R.N. (2009) 37 NSCQR 1146 at 1180, EX PARTE v. ADESINA (1996) 4 NWLR (Pt. 442) 254, ATTORNEY-GENERAL OF ANAMBRA STATE v. OKEKE (2002) 12 NWLR (Pt. 782) 575 and STEPHEN LAWSON-JACK v. THE SHELL PETROLEUM DEVELOPMENT COMPANY OF NIGERIA LTD (2002) 13 NWLR (Pt. 783) 180.
The averments of the appellants that the 1st appellant was duly selected as the Muri Munene of the Efuts was countered by the 1st-4th respondents who then adduced new facts including documents indicating the various disputes attending the filling of the said stool and showing efforts made to resolve the dispute among the various contenders among whom was the 1st appellant. The said averments included a crucial meeting held on 22nd May, 2012, minutes of
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which is on pages 217-221 of the record of appeal, at which the 1st defendant supposedly participated as a contestant to the said stool and which meeting ended with a recommendation asking the then Governor of the State to approve the commencement of a selection process.
The crucial averments here were never controverted by the appellants and the learned trial Judge was on good grounds to accept them as true and accord them necessary evidential value.
In the circumstances I resolve this issue as well against the appellants.
The remaining issue is whether S. 20 and S. 22 of the Traditional Rulers Law Cross River State are applicable to Muri Munene Stool.
?The position of the appellants on this issue is interesting to put it mildly. Before this Court in this appeal, they have argued that the Stool of Muri Munene is within Calabar Municipality and falls outside the scope of Sections 20 and 22 of the Traditional Rulers Law of Cross-River State. The written address of appellants’ counsel in support of the motion on notice, canvassed before the trial Court is on pages 48-49 of the record of appeal. On page 49, appellants’ counsel
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argued thus before the trial Court;
My Lord, we submit that your Lordship has the discretion and the power to quash the decision/directive of the 2nd Respondent to conduct selection into the office of the Muri Munene which is contained in the letter of 18th September, 2012. The said decision is a clear violation of Section 20 of the Traditional Rulers Act. Section 20(1) of the said Act is reproduced hereunder as follows:
“Whenever there is a vacancy in the office of the Paramount Ruler, other than that of the Calabar Municipality, The Commissioner shall invite, in writing, all the Clan Heads of the area of authority of the Local Government concerned to consult together and within one month from the date of the invitation, to select one of their own member for presentation as their nominee for official recognition as Paramount Ruler of such Local Government Area.”
My Lord, a careful reading of the above provisions imports that the selection of the Muri Munene is a duty reserved by law for the people of Efut Kingdom through their Clan leaders which in this case is the Efut Combined Assembly. The 2nd Respondent lacks the jurisdiction to make such
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an order and cannot by administrative act confer upon itself a right that it does not possess.
The law clearly creates a distinction in the selection of Paramount Rulers from Areas within Calabar Municipality and areas outside Calabar Municipality. The Applicants kingdom falls within areas outside Calabar Municipality (Calabar South Local Government) and so therefore is covered by this provision.
I have quoted extensively from this written address to show abundantly that the appellant did a total volte-face before this Court. This is totally unacceptable. The case of parties must be consistent from trial to the last stage of appeal, flip flops are not allowed. This practice had been deprecated in several cases including OLUFEAGBA v. ABDULRAHEEM (2009) 40 NSCQR 684, OSUJI v. EKEOCHA 39 NSCQR 523 at 555, AGBASO v. OHAKIM 7 EPR 420 and AWUSE v. ODILI (2003) 16 NSCQR 218.
This issue as well is resolved against the appellants.
In totality therefore, although issue 1 was resolved in favour of the appellants, it is not every error that will lead to the reversal of the judgment of a trial Court once it is not substantial as to result in
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a miscarriage of justice. See OHAKIM v. AGBASO (2011) 47 NSCQR 324 ADEOGUN v. FASOGBON (2011) 45 NSCQR 594 and INEC v. BELLO (2013) 10 EPR 544.
I therefore hold that this appeal lacks merit and I accordingly dismiss it.
Parties shall bear their respective costs.
ONYEKACHI AJA OTISI, J.C.A.: I was privileged to read in advance, a draft copy of the lead Judgment in this appeal just delivered by my learned brother, J. O. K. Oyewole, JCA. I am in complete agreement with his reasoning and conclusion in dismissing this appeal as unmeritorious. I adopt his reasoning as mine and abide by the orders in the lead Judgment.
PAUL OBI ELECHI, J.C.A.: I have read in draft the Judgment just delivered by my learned brother Joseph Olubunni Kayode Oyewole, JCA.
My learned brother has considered all the issues very exhaustively before arriving at the conclusion dismissing the appeal. I adopt same and hold that there is no merit in the appeal and is hereby dismissed. I also abide by the consequential Order as to no cost to the parties.
25
Appearances
Chief Onyebueke, Esq. with him, Mr. C. E. Nwaeche, Esq. and Mrs. E. K. Ntui,, Esq.For Appellant
AND
Mrs. L. O. Asuquo, Esq. for 1st Respondent
Mr. O. E. Asuquo, Esq. for 2nd-4th RespondentsFor Respondent
