CHIEF AKUJOBI DAVID OSUAGWU v. CHIEF CHARLES EMEZI & ORS
(2013)LCN/6229(CA)
In The Court of Appeal of Nigeria
On Friday, the 24th day of May, 2013
CA/PH/320/2007
RATIO
WORDS AND PHRASES: LOCUS STANDI
It is now well settled that locus standi is the legal capacity to institute proceedings in a court of law. Accordingly, locus standi will only be to a plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected. See PRINCE ADEMOLU ODENEYE vs. PRINCE DAVID OLU EFUNUGA (1990) 11-12 SC.122; THOMAS vs. OLUFOSOYE (1986) 1 NWLR (pt.18) 669; A-G, KADUNA STATE vs. HASSAN (195) 2 NWLR (Pt.8) 483; ADESANYA vs. PRESIDENT (1981) 5 SC 112.PER JOHN INYANG OKORO, J.C.A.
BINDINGNESS OF PLEADINGS ON PARTIES BEFORE THE COURT
It is trite that parties are bound by their pleadings and that any evidence which is at variance with the averments in the pleadings go to no issue and should be disregarded by the court. The reason for this rigid rule of pleading and of evidence has been clearly stated by the Supreme Court in GEORGE vs. DOMINION FLOUR MILLS LTD. (1963) 1 ALL NLR 71 at 77 as follows:-
“The fairness of a trial can be tested by the maxim audi alteram partem. Either party must be given an opportunity of being heard, but a party cannot be expected to prepare for the unknown; and the aim of pleadings is to give notice of the case to be met which enables either party to prepare his evidence and arguments upon the issues raised by the pleadings and saves either side from being taken by surprise.”
See ABDUL-KARIM LEMOMU & ORS vs. ALH. NOAH ALLI-BALOGUN (1975) 3 SC.62; NJOKU & ORS vs. EME & 4 ORS. (1973) 5SC (Print) 211; BALIOL NIG. LTD vs. NAVCON NIG. LTD. (2010) 16 NWLR (Pt.1220) 619; KALIO vs. DANIEL KALIO (1975) 2 SC 15 at 21; EMEGOKWE vs. OKADIGBO (1973) ALL NLR 314 at 317; UGOJI vs. ONUKOGU (2005) 16 NWLR (Pt.950) 97. PER JOHN INYANG OKORO, J.C.A.
WORDS AND PHRASES: JURISDICTION
For the avoidance of doubt, it is well settled and our courts are replete with decided cases which have established the principle that the word jurisdiction means the authority which a court has to decide matters before it or take cognizance of matters presented in a formal way for its decision. See ATTORNEY GENERAL OF THE FEDERATION V. GUARDIAN NEWSPAPERS LTD. & ORS. (1999) 9 NWLR (Pt.618) 187; (1999) 5 S.C. (Pt.111) 59; NATIONAL BANK vs. SHOYOYE (1977) S.C. 181; and RAMAGE & ANOR. vs. WOMACH (1900) 1 QB 114. PER JOHN INYANG OKORO, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
Between
CHIEF AKUJOBI DAVID OSUAGWU Appellant(s)
AND
1. CHIEF CHARLES EMEZI
(Substituted by order of court)
2. THE GOVERNOR OF IMO STATE
3. ATTORNEY GENERAL OF IMO STATE
4. THE SECRETARY TO IMO STATE GOVERNMENT Respondent(s)
JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Imo State High Court sitting in Owerri in Suit No. HOW/199/99 delivered on the 29th June, 2007 by Hon. Justice P. C. Onumajuru – Chief Judge wherein his Lordship upheld the claim of the plaintiff (now 1st respondent). A brief facts of this case will suffice.
By an amended statement of claim, the 1st respondent (substituted by order of court) claimed as plaintiff against the appellant, as 4th defendant in the court below as follows:
“(a) A declaration of the Honourable Court that the purported recognition accorded to the 4th defendant by the 1st defendant on the advice of the 3rd defendant is unlawful, and ultra vires the 1st defendant.
(b) A declaration of the Honourable Court that the document titled “Laid – down procedure adopted in selecting the Chief or Traditional Ruler of Awaka and the procedure, the Traditional manner and criteria of which further election will be based” and which was used to identify, select, appoint and install EZE OSIMIRI DAVID OSUAGWU is the Constitution of Awaka Autonomous Community on the subject of Ezeship stool and the same had not been validly amended and cannot be so amended without the consent and approval of Ndegbelu Awaka people who have a vested interest under the document to produce the next Traditional Ruler of Awaka immediately after the demise of EZE OSIMIRI DAVID OSUAGWU.
(c) A declaration of the Honourable Court that the purported recognition accorded to the 4th defendant as the Traditional Ruler of Awaka Autonomous Community was done unlawfully at the instigation of the 3rd defendant and without the necessary legal advise.
(d) A declaration of the Honourable Court that the purported recognition given to the 4th defendant as the Traditional Ruler of Awaka Autonomous when there are pending in the courts, litigations touching on the matter is an abuse of executive power, and amounts to executive contempt of the court and therefore unlawful.
(e) A declaration of the Honourable Court that the plaintiff on record having been identified, selected, appointed and presented in accordance with the relevant provisions of the Traditional Rulers and Autonomous Communities Law No.11 of 1981 as amended is the right person to be accorded recognition as the Traditional Ruler of Awaka Autonomous Community.”
At the hearing, the 1st respondent testified that he brought this suit in a representative capacity for himself and the people of Ndegbelu Village of Awaka. In 1979 Awaka Community was formally recognized as an autonomous community and asked to produce a traditional ruler for recognition by the government of Imo State. Since the community had no traditional ruler before 1979, it held several meetings for the purpose. At one of such meetings it mandated the “Oha Awaka” (i.e., the elders of Awaka) to advice on the matter. It was decided that Umuodu village Awaka be given the first slot in the new dispensation on the basis of a rotatory system. Umuodu was then requested to produce two candidates out of which one was to be selected by the community. At a subsequent meeting two candidates Oshimiri David Osuagwu and Sydney Osuji were produce by Umuodu village.
The community then set up a 15 member chieftaincy screening committee and charged it with the responsibility of screening the two candidates and drawing up a chieftaincy document by which traditional rulers would be identified and selected for the community. The community produced a chieftaincy constitution Exhibit “A” on the basis of rotational system and recommended Oshimiri David Osuagwu who was the appellant’s uncle as the candidate for the stool. He was adopted and presented to government for recognition. The order of rotation was agreed to be Ndegbelu, Amuzi and Umuodu. Eze Oshimiri David Osuagwu was recognized by government.
Upon the death of Eze Oshimiri David Osuagwu and after the second burial, it became the turn of Ndegbelu village to produce a successor. Three candidates namely Ama Njoku, Opara Igbokwe, and the plaintiff were produced by that village and the respondent was chosen.
There was a tussle and disaffection in Awaka Community following which government set up a panel of inquiry into the Ezeship tussle. The panel submitted its report and a white paper, Exhibit “K” was issued stating that traditional rulership in Awaka was rotatory. After the white paper, there was still disaffection and unrest in the Awaka Community. Consequently, after the white paper, government set up a committee to conduct a plebiscite to determine the wishes of the people on the mode of selection of a traditional ruler. Not being satisfied with the decision of government to set-up the committee on plebiscite, the 1st respondent took out an action in court in HOW/13M/96 – Exhibit “B” and obtained an interim order in Exhibit “C” which order was said to have been served on the parties in that action as shown in “Exhibits D, D1”. The 1st respondent stated that the uproar and confusion created during the proceedings of the plebiscite committee led to the abandonment of the exercise. The 1st respondent also stated he took out a personal action in suit No. HOW/53/96 and obtained judgment in Exhibit “E” which judgment was set-aside by the Court of Appeal as a result of which he appealed to the Supreme Court as shown in Exhibits “F” and “G”. The 1st respondent stated himself and Ama Njoku appeared before the screening committee and that he was selected and presented to government for recognition.
On the other hand, the appellant who was the 4th defendant in the court below stated that the first traditional ruler that was selected for the Awaka Community was late Eze Oshimiri Christopher Osuagwu and that at the time of his identification and selection, the community had no chieftaincy constitution.
There was a 15 man caretaker committee. The 15 man committee was charged with the responsibility of seeing to the progress of the community and fashioning out the method to be adopted in the selection of a new traditional ruler for the community. The committee performed these duties. After considering the difficulties attendant to a rotatory system of succession, the committee decided to make succession to the traditional stool hereditary. The decision for hereditary system was recommended to the entire Awaka community which approved of it. Pursuant to this recommendation the community proceeded to identify, select and present a candidate for succession to the stool.
The appellant was recommended by the committee as a candidate following which he was identified, selected and presented as traditional ruler. The appellant was presented to the local government and subsequently recognized by the government of Imo State under the hereditary system pursuant to Exhibit “M”.
The appellant was crowned as traditional ruler of Awaka after he was called “Onyeisi Oha”. The head of the elders (“Ndioha) was from Ndegbelu, the village of the 1st respondent.
The Awaka people did not need to obtain the consent of the Ndegbelu people of the 1st respondent before changing to hereditary system.
According to the appellant the meeting of Awaka people on 12/4/93 was to discard the existing rotatory system in favour of hereditary system of traditional rulership. By Exhibit M the people of Awaka resolved and adopted the hereditary system as the method of succession to the Ezeship stool in Awaka as in the case with the neighbouring communities of Owerri, Egbu and Ihitte whose Ezeship system is hereditary.
After the oral evidence of the parties and the closure of their cases, the learned counsel for the parties, except the 2nd to 4th respondents herein, addressed the court which delivered a reserved judgment granting most of the reliefs sought by the 1st respondent (as plaintiff) as follows:
“1. The purported recognition accorded the 4th defendant by 1st defendant is null and avoid.
2. The document titled “Laid-down procedure adopted in selecting the Chief or Traditional Rulers of Awaka and the procedure, the Traditional manner and criteria of which future election will be based, Exht. A, and which was used to identify, select, appoint and install Eze Oshimiri David Osuagwu is the Constitution of Awaka Autonomous Community on the subject of Ezeship stool having not been amended has vested the right to produce the next traditional ruler of Awaka upon the demise of Eze Oshimiri David Osuagwu on Ndegbelu village.
The 3rd relief claimed in this suit is rendered unnecessary in the light of the first declaration made herein.
3. The recognition given the 4th defendant as the traditional ruler of Awaka Autonomous Community when litigations touching on the matter were pending was unlawful.
4. The plaintiff on record having been identified, selected appointed and presented in accordance with the provisions of Law No. 11 of 1981 as amended is entitled to be accorded recognition as the traditional ruler of Awaka Autonomous Community.
5. Following from the foregoing declaration the 4th defendant is hereby restrained from acting or otherwise parading himself as the traditional ruler of Awaka Autonomous community, 4th defendant will pay plaintiffs costs of N3,000.00.
Dissatisfied with the judgment of the learned trial judge, the appellant lodged an appeal by an original notice and grounds of appeal dated 2nd July, 2007 and filed on 3rd July, 2007.The said notice of appeal contains two grounds of appeal. By a Motion on Notice dated 10th February, 2007 and filed in this court on 11th February, 2009, the appellant sought and obtained leave to file and argue additional grounds of appeal. Leave was granted on 2nd March, 2012 and the appellant filed additional grounds 3, 4, 5 and 6. The said additional grounds of appeal was filed on 7th March, 2012. Out of the six grounds of appeal, the appellant has distilled five (5) issues for the determination of this appeal.
In the brief settled by Dr. Amaechi Nwaiwu, SAN, which was adopted at the hearing of this appeal on 18th March, 2013, on pages 12 to 13 thereof, the five issues are as follows:
“1. Was there a change from the rotatory system to the hereditary system in filling the Ezeship stool in Awaka Autonomous Community if the answer as in the affirmative, did the change comply with Section 15 (1) of the Traditional Rulers and Autonomous Communities Law No. 11 of 1981?
2. Whether the learned trial judge was right in holding that Ezeship stool in Awaka Autonomous Community is still rotatory as embodied in Exhibit A and that it is the turn of Ndegbelu village to produce a successor. (Ground 3 of the Additional Grounds of Appeal).
3. Was the learned trial judge right in holding that the recognition given the appellant as the traditional ruler of Awaka Autonomous Community was unlawful as a result of pending litigations touching on the matter? (Ground 2 of the original Grounds of Appeal and Ground 5 of the Additional Grounds of Appeal).
4. Was the 1st Respondent identified, selected, appointed, installed and presented as traditional ruler by the entire people of Awaka Autonomous Community and if the answer is in the negative, did the 1st respondent have the locus standi to institute this action, thereby affecting the competence of the action and the jurisdiction of the court to adjudicate upon this suit? Ground 6 of the Additional Ground of Appeal).
5. Did the 1st respondent prove his case in the court below on the preponderance of evidence and balance of probabilities as required by law? Ground 1 of the Grounds of Appeal).”
The learned Senior Counsel for the 1st respondent, Chief Eze Duruiheoma, SAN has also distilled 5 issues for determination as contained in the 1st respondent’s brief filed on 10th October, 2012 which was also adopted and relied upon by him on 18th March, 2013 at the hearing of this appeal. The following are the five issues:
“1. Was the learned trial judge correct when he held to the effect that the 2nd respondent did not comply with Exhibit A when he accorded recognition to the appellant? (Ground 4).
2. Was the learned trial judge correct when he held that the document titled “laid-down procedure adopted in selecting the Chief or Traditional Ruler of Awaka and the procedure, the traditional manner and criteria on which future selection will be based (Exhibit A) and which was used to identify, select, appoint and install Eze Oshimiri David Osuagwu is the constitution of Awaka Autonomous Community on the subject of Ezeship having not been amended, has vested the right to produce the next traditional ruler of Awaka upon demise of Eze Oshimiri David Osuagwu on Nedgbelu village? (Ground 3).
3. Were there pending litigations at the time the 2nd respondent purported to accord recognition to the appellant? (Grounds 2 and 5).
4. Is there any feature of this suit that robbed the trial court of its jurisdiction to hear the same? (Ground 6).
5. Is the 1st respondent entitled to the reliefs granted to him by the lower court? (Ground 1).”
Upon receipt of the 1st respondent’s brief, the learned Silk for the appellant filed a reply brief on 23/11/12 but deemed filed on 15th January, 2012. The said reply brief which has 23 pages is to say the least short of what a reply brief ought to be. I shall return to this anon.
Before I take any further step in this appeal, I observe, and curiously, too, on page 9 of the appellant’s brief at paragraph 6 thereof what the appellant captions “NOTICE OF PRELIMINARY OBJECTION ON LACK OF LOCUS STANDI AND REQUISITE JURISDICTION AND INCOMPETENCE OF THE SUIT.” I am aware that by Order 10 Rule I of the Court of Appeal Rules 2011, a respondent intending to rely upon a preliminary objection to the hearing of the appeal, shall give the appellant three clear days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with twenty copies thereof with the registry within the same time. By Rule 3 thereof, if, the respondent fails to comply with this rule, the court may refuse to entertain the objection or may adjourn the hearing thereof at the costs of the respondent or may make such other order as it thinks fit. There is no provision in the Rules of this court for an appellant to raise a preliminary objection to the hearing of his own appeal.
As was rightly pointed out by the learned Senior Counsel for the 1st respondent, it is an unusual practice and indeed unheard of, for an appellant to raised a preliminary objection in his own appeal, moreso, when the said preliminary objection is directed at the same suit which he is appealing against and which judgment had been delivered at the court below.
For the avoidance of doubt, it is well settled and our courts are replete with decided cases which have established the principle that the word jurisdiction means the authority which a court has to decide matters before it or take cognizance of matters presented in a formal way for its decision. See ATTORNEY GENERAL OF THE FEDERATION V. GUARDIAN NEWSPAPERS LTD. & ORS. (1999) 9 NWLR (Pt.618) 187; (1999) 5 S.C. (Pt.111) 59; NATIONAL BANK vs. SHOYOYE (1977) S.C. 181; and RAMAGE & ANOR. vs. WOMACH (1900) 1 QB 114.
Also, as a matter of practice, a preliminary objection as to the jurisdiction of the court with respect to a particular matter can be raised and taken at any time, and even before pleadings have been ordered in the case or even for the first time on appeal. However, the procedure adopted by the appellant herein is strange. The preliminary objection is not directed to this court but to the lower court which had since concluded its job. The proper procedure is for the appellant to have raised a ground of appeal on jurisdiction and an issue formulated therefrom. If the appellant had followed this time honoured practice, this court would have given him a hearing on the matter.
I agree that it is therefore contradictory and strange for an appellant to raise a preliminary objection in an appeal filed by him.
Such a procedure or practice, I must say, is unknown to the Rules of this court or any substantive law. Accordingly, the said notice of preliminary objection contained on page 9 of the appellant’s brief together with the arguments in support thereof spanning pages 9 to 12 of their brief are hereby struck out being incompetent. I shall now determine this appeal based on the issues as formulated by the appellant which are also in tandem with that of the 1st respondent. I must point out here that the 2nd to 4th respondents did not give evidence at the court below and also did not file any brief in this court and as it is, they have nothing to urge on in this court.
Issue No. I states that whether there was a change from the rotatory system to the hereditary system in filling the Ezeship stool in Awaka Autonomous Community and if so, whether the said change complied with the law. Learned Senior Counsel for the appellant submitted, in the main that there was a change from the rotatory system to the hereditary system in filling the Ezeship stool in Awaka Autonomous Community. Referring to paragraph 22 of the statement of defence and the evidence of DW1, John Njoku, DW2 and DW3, he submitted that from the pleadings and evidence led by the appellant at the court below, it is clear that there was a change from the rotatory system to hereditary system.
Learned Senior Counsel argued that the said change in the method of succession to the Ezeship of Awaka was in compliance with the provisions of Section 15 (1) of the Traditional Rulers and Autonomous Communities Law No. 11 of 1981. According to Learned Senior Counsel for the appellant, the 2nd respondent, Governor of Imo State approved the change based on Exhibit “M”. Furthermore, the learned Silk referred to the Awaka Autonomous Community (Ezeship Stool Plebiscite) interim Council Edict 1995 which ordered another plebiscite for the entire Awaka Community to determine the mode of succession they desired. That the plebiscite was conducted and it favoured hereditary system of succession which produced the appellant as the Eze of Awaka Autonomous Community. Learned counsel refers to Appeal No. CA/PH/68/97 between Akujobi David Osuagwu vs. Herbert Ohuabunwa Emezi & 3 Ors. which judgment was delivered on 23/7/97 which went to the Supreme Court as appeal No. SC/251/2000. According to him, the two judgments upheld the plebiscite. Learned Senior Counsel then wondered why the learned trial Chief Judge refused to follow the judgment of a higher court. He then urged this court to resolve this issue in favour of the appellant.
In response, the learned Senior Counsel for the 1st respondent, first and foremost attacked the 1st issue of the appellant, alleging that it was not an issue at the trial, the learned trial judge having rejected an attempt to smuggle it into the trial as an issue. Secondly, that the appellant has not appealed against the express finding by the trial court that “the change from one system to the other was not part of the 4th defendant’s case on the pleadings.” That this finding forecloses issue I which the appellant seeks to smuggle into this appeal. It is his further argument that having not appealed against the above specific findings of fact made by the trial court, those findings remain forever unassailable by the parties, referring to the following cases: SCC NIG. LTD. vs. ANYA (2012) 9 NWLR (Pt.1305) 213 at 222 paras G-H; JIMOH vs. AKANDE (2009) 5 NWLR (Pt.1135) 549 at 585 paras G-H and CYCLOPS vs. IBARAONYAYE (2012) 9 NWLR (Pt.1305) 233. He urged the court to strike out appellant’s issue one. He then went ahead to argue his issue I which he says is preferable.
Referring to the decision of the learned trial judge that the stool of Awaka is still rotatory, he submitted that the court below was right in holding that there was no compliance with Exhibit ‘A’ in the recognition purportedly accorded to the appellant. That exhibit A is the Ezeship Constitution of Awaka people as supported by abundant evidence and that the appellant did not claim to have obtained his recognition sequel to Exhibit A. He submits further that having claimed that his recognition derives from Exhibit ‘M’, it can only stand if it is shown that Exhibit M effectively amended Exhibit A.
Learned Senior Counsel opined that this is not the case, that apart from the fact that it was not the case of the appellant at the trial that Exhibit A was amended, the trial court, out of abundance of caution also held that Section 15 (1) of the Law No. 11 of 1981 was not complied with. That finding of the court below, he submits is unassailable, citing and relying on the case of AMIRA NIG. LTD. vs. MAL NIG. LTD. (2001) 17 NWLR (Pt.742) 469 at 503 – 504 paras H-C.
On the allegation by the appellant in their brief that the learned trial judge held that there was a change from rotatory system of succession to hereditary system, he submitted that the claim is false as the court below never made such finding or decision. Also that para 22 of the statement of claim does not support the claim of the appellant that there was a change. Therefore, according to him, the evidence of DW1, DW2 & DW3 on the issue go to no issue. He relies on the case of DARE vs. DAGACI OF EBWA (2006) 7 NWLR (Pt.979) 382 and NITEL PLC vs. AKWA (2006) 2 NWLR (Pt.964) 341.
As regards Appeal No. CA/PH/68/97 cited by the appellant, learned Senior Counsel submitted that being a material fact it must be pleaded before the appellant can take benefit of or make use of it. That it must have been part of the case fought at the court below. He cites the cases of AKANMU vs. CO-OPERATIVE BANK PLC (2006) 2 NWLR (Pt.963) 82 in support. According to him, the learned trial judge could not have applied a case not brought to his knowledge as this case was never cited in the pleadings or in the address of counsel. The court below, according to him was not expected to comb all decisions of the Court of Appeal or the Supreme Court to look for findings of fact that will assist him. He then urged this court to resolve this issue in favour of the 1st respondent.
The learned Senior Counsel for the respondent has made an observation regarding issue I as couched by the appellant. I want to believe that the learned Silk knows what to do if he wishes to raise any objection to the hearing of an appeal or any issue therein. He ought to have filed a notice of preliminary objection to the hearing of that issue. Having not done so, his observation shall remain an observation. However, in the course of this judgment, if there is any virus which afflicts this issue, it would be clearly seen. I need not say more on this.
Two questions must be asked and answered here and now in order to be able to determine this issue. The first question is whether Exhibit A was actually in existence for the purpose of determining the method of selecting a new Eze for the people of Awaka Autonomous Community whenever the stool becomes vacant. In other words, was there a Constitution of Awaka people in terms of Exhibit A which made succession to the Ezeship of Awaka rotatory? The second question will flow from the first. If Exhibit A was in existence, was it ever amended according to law?
To the first question stated above, the learned trial judge answered it in the affirmative. In this case, the appellant herein in his pleadings clearly denied the existence of Exhibit A or that it was ever used or intended to be used as a guiding document for the selection of an Eze. Paragraph 7 of the appellant’s amended statement of defence is germane here and I shall reproduce it in this judgment. It states:
“7. In further answer to paragraphs 8, 9, 10, 11, 12, 13, 14 and 14 (a) of the Amended statement of claim the 4th defendant avers as follows:
(a) That the purported Ezeship Constitution at the time the late Eze Oshimiri David Osuagwa was selected, installed and presented to the State Government for recognition was not considered nor approved by the people of Awoka and is void ab initio as it was violation of the custom of the people of Awaka on Ezeship. The 15 man Committee was set up to produce guidelines wish (sic) would serve as the Autonomous Community’s Constitution for the selection of future Ezes. This committee failed to produce any Constitution or guideline. In 1987 when the plaintiff was made the Chairman of the 15 man committee, the story was not different from what happened before and the Autonomous Community was still left without any valid Constitution…
(b) There was no time the people of Awaka agreed that the Ezeship of the Autonomous Community would rotate among the three villages of Awka as this is contrary to the custom of the people which makes the Ezeship hereditary in the 4th defendant’s Royal Family.”
From the above pleading of the appellant in his amended statement of defence, he denied the existence of Exhibit A as the document approved by his community for the selection of an Eze. To the above pleading, the learned trial judge held on page 40 of Vol. I of the Record as follows:-
“Contrary to the claims of the 4th defendant on Exhibit A, DW1 stated that he saw Exhibit A in the course of his duty as Chairman of the 15 man committee and admitted that Exhibit A formed the basis for the selection of our late ruler, Eze Christoper David Osuagwu…”
DW1 was not the only witness of the appellant who rubbished the pleading of the appellant. DW2 clearly stated that Exhibit A was the Constitution of the community contrary to the pleadings of the appellant. On pages 40-41 of the record (Vol. I) the learned trial judge went on to say as follows:-
“Also under cross examination DW2 from Ndegbelu admitted this fact of rotatory system when he stated thus:
“6. It is correct that when Eze David Osuagwu died I contested the vacant Exeship stool with plaintiff and late Professor Nwachukwu
7. At the time I took part in the contest for the vacant stool, the contest was not in furtherance of the hereditary system of rulership.
8. At the time of that contest it was the right of Ndegbela village to produce the traditional ruler in succession to late Eze David Osuagwu.
9. It is correct that I protested against the result of the contest between me, plaintiff and late Professor Nwachukwu.
17. It is correct that it was on the basis of the rotatory system of Ezeship stool that late Eze David Osuagwu was selected and enthroned. The community by its history discovered that during the warrant chief system of chieftaincy, Ndegbela which is the head village and Amuzi village had Warrant Chiefs in the past. Umuodu did not produce any Warrant Chief. So when in the new system, it become necessary for Awaka to produce a traditional ruler, it was decided to compensate Umuodu with the first shot. It was then also decided that whenever a vacancy occurred the rotatory system would be adopted starting with Ndegbelu.”
Again, the above evidence was from a witness of the appellant who had pleaded that rotatory system was alien to their custom and tradition. The appellant had pleaded in the afore-quoted paragraph 7 of his amended statement of defence that his family was a royal family and as such only they could produce the Eze. But DW3 stated emphatically that the appellant’s family did not produce any Warrant Chief prior to their new status as an autonomous community. That by Exhibit A, the appellant’s family was “compensated” to produce the Eze first and thereafter the people of Ndegbelu whom he described as the “head village of Awaka”.
Also, DW3 admitted the existence of Exhibit A and the fact of the rotatory system of selection of an Eze. He said during cross examination as contained on page 41 as quoted in the judgment of the learned trial judge as follows:
“1. The meeting of Awaka people on 12/4/93 was to discard the existing rotatory system in favour of hereditary system of traditional rulership.
2. I know of the document of Awaka people titled Laid-down Procedure Adopted in selecting the Chief or Traditional (sic) of Awaka Exhibit A.
3. It is correct that the rotatory system owes its existence to Exhibit A.
6. The Awaka people did not need to obtain the consent of Ndegbelu people before changing the rotatory system to hereditary system.”
It is trite that parties are bound by their pleadings and that any evidence which is at variance with the averments in the pleadings go to no issue and should be disregarded by the court. The reason for this rigid rule of pleading and of evidence has been clearly stated by the Supreme Court in GEORGE vs. DOMINION FLOUR MILLS LTD. (1963) 1 ALL NLR 71 at 77 as follows:-
“The fairness of a trial can be tested by the maxim audi alteram partem. Either party must be given an opportunity of being heard, but a party cannot be expected to prepare for the unknown; and the aim of pleadings is to give notice of the case to be met which enables either party to prepare his evidence and arguments upon the issues raised by the pleadings and saves either side from being taken by surprise.”
See ABDUL-KARIM LEMOMU & ORS vs. ALH. NOAH ALLI-BALOGUN (1975) 3 SC.62; NJOKU & ORS vs. EME & 4 ORS. (1973) 5SC (Print) 211; BALIOL NIG. LTD vs. NAVCON NIG. LTD. (2010) 16 NWLR (Pt.1220) 619; KALIO vs. DANIEL KALIO (1975) 2 SC 15 at 21; EMEGOKWE vs. OKADIGBO (1973) ALL NLR 314 at 317; UGOJI vs. ONUKOGU (2005) 16 NWLR (Pt.950) 97.For me, the learned trial judge was perfectly right when he held that it was not the case of the appellant that there was a change from the system of rotation to that of hereditary. The learned trial judge also held, and I agree with him that the evidence of the defence lend support to the case of the 4th respondent on the fact of rotatory system and destroys the pleading of the appellant on the fact that according to custom it was the right of his village to produce traditional rulers and that Exhibit A was never considered nor approved by the community and was therefore “void ab initio”.
Again, the decision of the learned trial judge in respect of Exhibit K has not been appealed against. On page 41 of the Record of Appeal (Vol. I) the lower court states:-
“Besides, I must also add that Exhibit K, the government white paper on the tussle at pages 11-12 thereof recognized, adopted, and accepted the fact that the process of succession to throne of Awaka Chieftaincy “is still rotatory”.”
The above decision by the court below, and indeed Exhibit K has clearly taken care of all the arguments and submissions in respect of issue of the plebiscite which was the subject of the white paper (Exht. K). This shows that government rejected the result of the plebiscite and confirmed the rotatory system of succession as entrenched in Exhibit A. No wonder the 1st – 3rd respondents pleaded in their joint statement of defence in paragraph 4 (d) that –
“No application was ever made to the Chief Executive of Imo State to amend the Ezeship Constitution of the Aw aka Autonomous Community.”
For me, in spite of the denial by the appellant in his pleading (though evidence led by him proved otherwise) that Exhibit A was not the basis for the selection of an Eze in Awaka Autonomous Community, I agree with the learned trial judge that Exhibit A, the Constitution of Awaka people was the basis which the 1st Eze was selected and remains the Constitution of Awaka people till date.
Now having held that Exhibit A is the Constitution of Awaka people and governs the selection of an Eze, the next question is, has it ever been legally amended? On this, the court below held as follows on page 42 of the record (Vol. I):-
“Be that as it may even if the pleading in paragraph 22 can be regarded, albeit remotely as importing a pleading of change from rotatory to hereditary system (which for reasons I have given it is not) the provisions of the law on the subject must be followed to effectuate such a change. That law is S.15 (1) of Traditional Rulers and Autonomous Communities Law No. 11 of 1981.”
I agree intoto with the above decision of the learned trial Chief Judge. Now Section 15 (1) of the law alluded to above states:-
“15(1). After a copy of the Constitution of on Autonomous Community has been forwarded to the Chief Executive of the Local Government in accordance with the provisions of Section 4 of this law, it shall not be amended unless the Governor is satisfied that there is good reason or cause for the amendment.”
I have perused the entire record of appeal and I have not found any evidence to show that Section 15 (1) of the Traditional Rulers and Autonomous Communities Law 1981 was complied with. Evidence shows that there was an attempt to amend the Constitution but that it was not successful. As I understand Section 15 (1) of the Law on the subject, an amendment of the Constitution cannot be effected without the approval (for good reasons or cause) of the Governor first hand and received. I agree that to purport to present a candidate for recognition with a new guideline or Constitution which contradicts an existing Constitution already forwarded to the Chief Executive of a Local Government without a prior amendment of the existing Constitution runs counter to the spirit and intendment of the subsection.
On the whole, I agree with the court below that there was no change from rotatory system to hereditary system in the selection of the Eze of Awaka people. I also agree that the 2nd respondent did not comply with Exhibit A in according recognition to the appellant as the Eze of Awaka. Issue one, as it turns out is thus resolved against the appellant but in favour of the 1st respondent.
I will now consider the second issue as distilled by the appellant. It is whether the learned trial judge was right in holding that Ezeship stool in Awaka Autonomous Community is still rotatory as embodied in Exhibit A and that it is the turn of Ndegbelu village to produce a successor. This question had been adequately answered in the affirmative while resolving issue No. I. I do not see the need to go over the exercise again except to comment on the submission of the learned counsel for the appellant that the learned trial judge was guilty of judicial impertinence for failing to apply the judgment of the Court of Appeal in Appeal No. CA/PH/68/87 and that of the Supreme Court in Appeal No. SC/251/2000.
The genesis of the two appellate court judgments alluded to above was Suit No. HOW/53/96 instituted by the present 1st respondent against the appellant herein and the 2nd-4th respondents to this appeal. The action was commenced by originating summons in which a number of declarations were sought from the court in respect of the Ezeship Constitution of Awaka Autonomous Community in Imo State. The case was tried by Alinnor, J who granted all the reliefs of the 1st respondent herein. Dissatisfied, the appellant herein appealed to the Court of Appeal in Appeal No. CA/PH/68/97. Judgment in that appeal was delivered on 23/7/97 (coram Katsina-Alu, JCA (as he then was) Rowland and Onalaja, JJCA). The Court of Appeal allowed the appeal setting aside the decision of Alinnor, J. Three issues were formulated for the Court of Appeal, Port Harcourt Division as contained in a certified copy of the said judgment submitted to this court by the appellant herein. On page three of the said judgment, the three issues for determination are as follows:-
“1. Whether the plaintiff had the locus standi to maintain this action.
2. Whether the trial court had the competence jurisdiction) to inquire into the validity of the “Awaka Autonomous Community (Ezeship Stool Plebiscite) (sic) Interim Council Edict 1995 of Imo State in view of the provisions of Sections 2 (b) and 5 of the Constitution (Suspension and Modification Decree No. 107 of 1993.
3. Whether the facts before the trial court are such that could be resolved by way of originating summons.”
Clearly, the issues at the court of Appeal listed above relate to locus standi and jurisdiction. There was no issue on the substantive matter in the case. At the end, the Court of Appeal held as follows on page 13 of the said judgment:-
“Thus from the state of the averments in the respective affidavits of the parties, it is clear that there are very contentious issues and questions of fact that can only be resolved by oral evidence. These issues to my mind arise from the question, as to the mode of succession to the Ezeship Stool in Awaka, and Exhibit A was validly made or has been amended by Exhibit “I”.
It seems to me that a dispute such as the one we have in the case at hand, will qualify as hostile proceedings, which can only be resolved by oral evidence from the parties and/or their witnesses. To proceed merely by originating summons, as the trial court did in this case, would not meet the justice of the case.”
With the above concluding words, the judgment of Alinnor, J was set aside. From there, the present 1st respondent appealed to the Supreme Court in Appeal No. SC.251/2000. In a Certified True Copy of the said judgment, also made available to this court by the learned counsel for the appellant, it is clear that the Apex court did not decide on any of the substantive matters raised before that court. The Supreme Court decided only on the issue of locu standi and the concluding part of the judgment contained on pages 20-21 of the said judgment are as follows:-
“The correct position of the law therefore is that where a plaintiff is held to lack the locus standi to maintain his action, as I have found in this case, the finding goes to the jurisdiction of the court and denies it jurisdiction to determine the action. The proper order to be made in such a situation therefore, is to strike out the claim. See Oloriode vs. Oyebi (1954) 1 SCNLR 390; Thomas vs. Olufosoye (1986) 1 NWLR (Pt.18) 669; Momoh & anor. v. Olotu (supra) and Madakolu vs. Nkemdilim, (supra).
In conclusion, therefore, and for the reason I have given above, there is no merit in the entire appeal. I therefore dismiss it and make on order striking out the plaintiff s claim.”
It can be seem from the judgments of the two appellate courts, the kernel of their decision is that the method of commencing the action at the High Court in Suit No. HOW/53/96 was improper. It was the view of the Supreme Court that in the circumstance, the High Court lacked jurisdiction to try the matter and that the appellant therein (now 1st respondent in this case) lacked the locus standi to institute the action. The court then struck out the claim of the appellant in that appeal. Nothing was said about the substantive issues placed before it.
Also, the decision of the Court of Appeal, Port Harcourt Division alluded to above was that the case at hand qualified as hostile proceedings and needed oral evidence to resolve them. It then held that the court below had no jurisdiction to try the case. The issues before it were issues of jurisdiction and locus standi. None of the issues touched on the substantive matter. For me, any pronouncement by the Court of Appeal on the substantive issues not properly placed before it would be an obiter dictum which is not binding on the court. See AFRO-CONTINENTAL NIG. LTD. vs. JOSEPH AYANTUNJI & ORS. (1995) 9 NWLR (pt.420) 411; AMERICAN INTERNATIONAL INSURANCE CO. V. CEEKAY TRADERS LTD. (1981) 5 SC. 81 at 110. I must however point out that although as a general rule, an obiter dictum is not binding, there are occasions when an obiter dictum may have a binding effect. An obiter dictum which is what the court says by the way has persuasive effect. A court of law can allow itself to be persuaded by an obiter dictum especially where it does not occasion a miscarriage of justice. See FERODO LTD vs. IBETO IND. LTD. (2004) 5 NWLR (Pt.866) 317; ALH. YUSUF vs. EGBE (1987) 2 NWLR (Pt.56) 341; MACLEANS vs. INLAKS LTD. (1980) 8-11 SC. I; IFEDIORA vs. UME (1988) 2 NWLR (Pt.74) 5.It is my view that since the Court of Appeal held that the facts of the case are hostile and needed the trial court to take evidence before the method of selection of the Eze of Awaka could be determined, and the Supreme Court upheld that decision and struck out the claim of the 1st respondent herein, there was nothing in the two judgments which learned trial Chief Judge refused to be bound. It is even because the Supreme Court merely struck out the claim that made the 1st respondent herein to re-file the suit, this time around, in a representative capacity which was not the case in the former suit struck out by the Supreme Court. Having said that, it is still my view that the learned trial judge was right in holding that Ezeship in Awaka Community is still rotatory as embodied in Exhibit A and that it is the turn of Ndegbelu village to produce a successor. Issue 2 is therefore, also resolved in favour of the 1st respondent.
The next issue is whether the learned trial judge was right in holding that the recognition given the appellant as traditional ruler of Awaka Autonomous Community was unlawful as a result of pending litigation touching on the matter. The submission of the learned Senior Counsel for the appellant on the matter is that the learned trial judge failed to give particulars of the cases pending at the time the appellant was recognized. He argued that in volume 2 of the record of appeal, page 92 the 1st respondent stated that in Suit No. HOW/13M/96 the High Court made an interim order i.e. Exhibit C served on the parties affected thereby. That he tendered the affidavit of service and was admitted as Exhibits ‘D’ & ‘D1’. It was his contention that Exhibit D shows an affidavit meant for service on the Attorney General was purportedly served on the Secretary to the Attorney General. According to him, that was no service at all. Also that in Exht ‘D1’, affidavit of service meant for Hon. Justice J. O. Iwuagwu was purportedly served on “correspondence Clerk of Ministry of Justice Owerri”. That there was no evidence of service of any court process of any pending litigation on the Awaka Community Ezeship Stool Plebiscite Interim Council. Failure to serve a party a process in proceedings is a fundamental omission which render proceedings, order and judgment a nullity, relying on the cases listed below: OLORUNYOLEMI vs. AHKAGBE (2010) 8 NWLR (Pt.1195) 48 at 60; SKEN CONSULT NIG. LTD & ANOR vs. UKEY (1981) 1 SC.6; MARK vs. EKE (1997) NWLR (Pt.529) 501; UBA PLC vs. AJILEYE (1999) 13 NWLR (Pt.633) 116 among others.
Learned Senior Counsel further submits that in respect of Suit No. HOW/53/96 the 1st respondent testified that the judgment entered for him was set aside both by the Court of Appeal and the Supreme Court. He contended that the 1st respondent utterly and completely failed to show or demonstrate that the appellant was recognized at a time when proceedings on the subject matter were still pending in court. He urged this court to resolve this matter in favour of the appellant.
Responding to the above argument, the learned Senior Counsel for the 1st respondent submitted that in respect of Suit No. HOW/13M/96 alluded to by the appellant and the submission that the parties were not properly served, this issue ought to have been taken up at the trial. That being a new issue in this court, the appellant ought to have obtained leave of this court and having not done so, it should be discountenanced. He relies on the case of CORNET S.A. NY LTD. vs. BABBIT NIG. LTD. (2001) 7 NWLR (Pt.712) 442. So also the issue of service on Justice Iwuagwo who was served as Chairman of the Plebiscite Interim Council and not the service on a Secretary or Clerk in the Ministry of Justice was therefore proper. That the proceedings in Suit No. HOW/13M/96, particularly the order contained in Exhibit C affect the recognition accorded the appellant, in that it restrained same. Also that with respect to Suit No. SC/251/2000, there is evidence that the Notice of Appeal which initiated the appeal had been filed before the so-called recognition. He urged this court to resolve this issue in favour of the 1st respondent.
I must state here that both the judgment of the learned trial Chief Judge and the brief of the 1st respondent have failed to show that the appellant was recognized at the time proceedings were pending. A party who wishes the court to hold that an event took place at the time litigation was pending must show the following:-
1. The suit number and the parties therein.
2. The date the case was filed.
3. The date the case concluded.
4. The date which the event took place and finally,
5. The subject matter of the litigation.
On this issue, the judgment of court below states:-
“There was also evidence, which I accept, that the recognition of 4th defendant was also at a time when proceedings on the subject of the chieftaincy stool were still pending in court. In the premises of the foregoing I answer the 2nd issue in the negative.”Clearly, the above pronouncement did not state which proceedings were pending and the date which the appellant was recognized. The learned counsel for the 1st respondent did not also refer to any date in his brief. It is therefore my view that there is no material before this court to decide whether proceedings were pending at the time the appellant was recognized or not. This issue, for me is resolved in favour of the appellant. The issue as to none service of process or improper service is not part of the case before this court. Accordingly the argument on it is discountenanced.
The contention of the appellant under Issue No. 4 is that the 1st respondent not having been identified selected, appointed, installed and presented as traditional ruler by the entire Awaka people, did not have the locus to institute this action. Learned Senior Counsel for the appellant submits that from the pleadings before the court below and the evidence led, there is no shred of evidence that the 1st respondent was identified, selected appointed, installed and presented as traditional ruler by the people of Awaka as required by Section 5 (1) of the Traditional Rulers and Autonomous Communities Law No. 11 of 1981 of Imo State. Rather that it was shown by Exhibit M that the appellant herein was so appointed through hereditary mode of selection. Referring again to the Court of Appeal decision in Appeal No. CA/PH/168/97, he argued that the 1st respondent lacked the locus to institute this action. Also relying on his previous argument in paragraphs 6.2.1 to 6.3.1 of his brief, he urged this court to resolve this issue in favour of the appellant.
In his own argument, the learned Senior Counsel for the 1st respondent submitted that the appellant, having not appealed against the finding of fact by the learned trial judge that this case was brought in a representative capacity on behalf of the people of Ndegbelu who had acquired a vested right to the throne, he cannot thereafter challenge the locus standi of the 1st respondent. It is his contention that a representative in a representative action is not only pursuing a personal interest but also that of the group he represents. According to him, the interest of the representative is fused with that of the group. He submitted therefore, that the representative need not show that he was identified, selected, appointed, installed and presented. He urged to court to hold that the 1st respondent had the locus standi to sue in a representative capacity.
It is now well settled that locus standi is the legal capacity to institute proceedings in a court of law. Accordingly, locus standi will only be to a plaintiff who shows that his civil rights and obligations have been or are in danger of being violated or adversely affected. See PRINCE ADEMOLU ODENEYE vs. PRINCE DAVID OLU EFUNUGA (1990) 11-12 SC.122; THOMAS vs. OLUFOSOYE (1986) 1 NWLR (pt.18) 669; A-G, KADUNA STATE vs. HASSAN (195) 2 NWLR (Pt.8) 483; ADESANYA vs. PRESIDENT (1981) 5 SC 112.
In the instant case, the learned trial judge held on page 43 of the record (Vol. I) as follows:-
“I find that with the demise of the said traditional ruler, Ndegbelu had acquired a vested right to produce the next Traditional Ruler of the Community. Having acquired this right, they as a group have a right of action and can bring their action in a representative capacity as has been done here.”
The above finding and decision of the learned trial Chief Judge has not been appealed against. It is deemed to have been accepted by the appellant. See SCC NIG. LTD. vs. ANYA (2012) 9 NWLR (Pt.1305) 213. The argument of the appellant herein appears to be questioning the locus standi of the representative of Ndegbelu village who are the real plaintiff (now 1st respondent). I agree with the submission of learned Senior Counsel for the 1st respondent that a representative in a representative action is not only pursuing a personal interest but also that of the group he represents. In that case therefore, his interest is fused with that of the group. Having agreed with the lower court that after the demise of Eze Oshimiri David Osuagwu from the appellant’s village, it was the turn of the people of Ndegbelu village to produce the next Eze by virtue of Exhibit A – the Constitution of Awaka people, I hold the view which agrees with that of the court below that Ndegbelu village, represented herein by the 1st respondent acquired a vested right to produce the next Eze. That being the case, the said community, as a group has the right to bring this action in a representative capacity as they have done in this case. All the arguments of the appellant which tended to show as if the 1st respondent brought this action in his person al capacity go to no issue. Accordingly, I resolve issue No. 4 in favour of the 1st respondent.
The 5th and last issue is whether the 1st respondent proved his case in the court below on the preponderance of evidence and balance of probabilities as required by law. Learned Senior Counsel for the appellant argued that from the legal arguments canvassed in the appellant’s brief on issues 1-4, it is not in dispute and cannot be doubted that the 1st respondent woefully failed to prove his claim. He submitted that the 1st respondent failed to prove that he was appointed and installed as Eze and that he could not disprove that there was a change from the rotatory system to hereditary system. That he could not show there was non-compliance with Section 15 (1) of the Traditional Rulers and Autonomous Communities Law No. 11 of 1981. It was his contention also that the 1st respondent could not prove that it is the turn of Ndegbelu village to produce the next Eze. Learned Silk contended that when the case of the 1st respondent and that of the appellant are placed on that imaginary scale of justice, the scale would tilt in favour of the appellant, citing the case of MOGAJI vs. ODOFIN (1973) 4 SC. 91.
The learned Senior Counsel submitted also that the judgment of the trial judge was completely against the weight of evidence led in this case. He urged this court to set aside the said judgment. The learned Silk then accused the learned trial judge of descending into the arena and became both advocate and judge for the 1st respondent. However, the learned Silk failed to give particulars of the above accusation. I shall return to this.
In response, the learned Senior Counsel for the 1st respondent submitted that contrary to the stand of the appellant in this court, the case of the parties fought at the court below centred on the following:-
(a) What is the method of filling the Ezeship Stool in Awaka?
(b) Was that method followed in according recognition to the appellant?
It is his submission that the learned trial judge meticulously examined the above issues in the light of the pleadings and the evidence before him. He then urged this court to hold that the 1st respondent led credible evidence to prove his claim to the satisfaction of the learned trial Chief Judge. He then urged this court to resolve this issue in favour of the 1st respondent.
A resolution of this issue places a burden of repeating the 1st to 4th issues already discussed in this judgment. This I will refrain from doing. All I need to say here is that both in the pleading of the 1st respondent and the evidence led at the trial, the Ezeship Constitution of Awaka people was pleaded and tendered in court as Exhibit A. The learned trial judge upheld the contention of the 1st respondent that it was Exhibit A which was used to select the 1st Eze who was the uncle of the appellant. This was contrary to the pleading of the appellant which denied the existence of Exhibit A. He specifically denied that Exhibit A played any role in the emergence of his late uncle as the Eze. To make matters worse for the appellant, his witnesses DW1, DW2 and DW3 contradicted his pleadings on the point. I have already decided earlier in this judgment that the evidence led by the appellant at the court below was at variance with his pleadings. His case had collapsed like a pack of cards, whereas the case of the 1st respondent was consistent with his pleadings. For me, on the state of the pleadings and evidence led at the trial, when placed on that imaginary scale, the learned trial Chief Judge was justified to find as he did that Exhibit A was the basis for the installation of Eze David Osuagwu as Eze of Awaka. See MOGAJI vs. ODOFIN (1978) 4 SC.91.
I accept the argument of the learned counsel for the 1st respondent that since Awaka Community has an Ezeship Constitution, it must follow that the appellant who claims to have been recognized pursuant to Exhibit ‘M’ has the onus to prove that Exhibit ‘M’ amended Exhibit A. Quite unfortunately, the appellant could not prove this because his case was that there was no Exhibit A at all whereas his witnesses sang another tune. In fact the appellant pleaded that rotartory Ezeship was alien to their custom. But evidence led by both the witnesses of the appellant and that of the 1st respondent show clearly that the village of the appellant never produced a Warrant Chief until the three villages were merged to form an Autonomous Community. After the Constitution (Exhibit A) was made, the appellant’s village was given the opportunity to produce the first Eze to “compensate” them for the many years they never produced Warrant Chiefs. This is contrary to appellant’s contention that their family was a royal family and used to produce chiefs.
Let me take the matter even further. On page 40 of the record (Vol. I), the learned trial judge in his judgment referred to the evidence of DW2 (a witness called by the appellant) who told the court that the 1st respondent’s village Ndegbelu is “the head village of Awaka”. Nobody has challenged this evidence. And yet DW3 (as found in the judgment of the lower court on page 41 of the record Vol. I) told the lower court that “the Awaka people did not need to obtain the consent of Ndegbelu people before changing the rotatory system to hereditary system. What this clearly means is that even if the case of the appellant was that there was a change from rotatory to hereditary (which is not), then such a change would be faulty because the people of Ndegbelu (the head village) were not consulted as clearly stated by DW3.
I have already agreed with learned trial judge that Exhibit A was never amended and that it is still the document regulating the selection of Ezeship in Awaka Autonomous Community. I do not wish to repeat the exercise. There was therefore abundant evidence in favour of the 1st respondent in this case and I strongly hold that the learned trial Chief Judge was right in entering judgment for the 1st respondent. This issue is accordingly resolved in favour of the 1st respondent.
After urging this court to resolve issue 5 in favour of the appellant, the learned counsel for the appellant, on page 29 of his brief paragraph 8 tried to argue on what he terms “wrongful appraisal of Evidence and invitation of the Court of Appeal to intervene with the findings of the learned trial Chief Judge.” The opening sentence in the argument under it states:-
“From the above treatment of all the issues for determination… ”
With due respect to the learned Senior Counsel for the appellant, this court can only determine matters raised within the five issues submitted for the determination of this appeal. Any other matter not brought within any of the five issues cannot be dabbled into by this court. Parties are bound by the issues submitted for the determination of the appeal. Therefore, the arguments on pages 29-30, particularly paragraphs 8, 8.1 and 8.2 are discountenanced and struck out.
The learned Senior Counsel for the appellant had in his brief accused the learned trial Chief Judge of descending into the arena and “became an advocate for the 1st respondent and the judge at the same time’. This is contained in para. 7.7.5 of their brief. To say the least, this is very uncharitable as the learned Silk never gave details or particulars of the learned Chief Judge being an advocate for the 1st respondent and descending into the arena. The fact that the trial Chief Judge preferred the evidence of the 1st respondent to that of the appellant does not make him an advocate for the 1st respondent. I think counsel should be a bit more careful in the choice of words even when they are disparaging Judges since that appears to be the trend now. I need not say more on this.
In conclusion, let me state clearly that chieftaincy matters are very volatile in our various communities and must be handled with care for the cohesiveness and stability of the polity. Where a community has, sequel to an enabling law set out the method of selection and succession of Eze’s Stool, nobody, no matter how highly placed or powerful should tamper with that method. It is for the peace of that community. Should there be a need to amend the said Constitution, it should be done in a transparent manner and in accordance with the enabling law. That was not the case in the instant case. To avoid anarchy, let us follow the law.
On the whole, having resolved all the issues against the appellant, save issue No. 3, I hold that this appeal lacks merit and is hereby dismissed by me. I affirm the judgment of the learned trial Chief Judge in Suit No. HOW/199/99 delivered on 29th June, 2007. I award costs of N50,000.00 to the 1st respondent only, against the appellant.
UWANI MUSA ABBA AJI, J.C.A. (PRESIDING): I have had the advantage of reading in draft the lead judgment of my learned brother, John I. Okoro, JCA justice delivered.
My learned brother fully dealt with all the issues raised for determination which I would myself have wished to cover. I entirely agree with the reasoning and conclusions therein reached that the appeal is devoid of any merit. I therefore have nothing more to add but to adopt same as mine.
I also dismiss the appeal. The judgment of the lower court delivered on the 29th day of June, 2007 is hereby affirmed. I endorsed the consequential order as to costs.
HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading before now, the judgment delivered by my learned brother, JOHN INYANG OKORO; JCA.
My learned brother admirably considered and resolved all the pertinent issues that arose for determination in this appeal. I have no hesitation in agreeing with him that the appeal lacks merit and should be dismissed. Consequently, I hereby dismiss the appeal and affirm the judgment of the learned trial Chief Judge of the Court below in Suit No. HOW/199/99 delivered on the 29th day of June, 2007.
I abide by the order on costs.
Appearances
Dr. Amaechi Nwaiwu (SAN) with him L. O. Unanwa (Miss) & N. D. Iwu (Mrs.)For Appellant
AND
Chief Eze Duruiheoma (SAN) with him, Jane Akano (Miss); H. C. Nwachukwu (Mrs.); J. C. Arisukwu Esq. and Chidinma Duru (Mrs.)
S. A. Njoku Esq. Hon. A-G. Imo State, with him E. C. Aguta (Mrs.) Direct or, C/L; I. I. Amadi Esq. (Chief State Counsel)For Respondent
