OFODILE & ANOR v. ALIOZO & ORS (2021)

OFODILE & ANOR v. ALIOZO & ORS

(2021)LCN/15522(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Monday, May 10, 2021

CA/E/142/2015

Before Our Lordships:

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

James Shehu Abiriyi Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

1. CHIEF G.A.N. OFODILE 2. CHRISTIAN UMEH President General, Aguobu Iwollo,Town Union, Enugu L.G.A.) APPELANT(S)

And

  1. C. A. ALIOZO ESQ. 2. R. N. OKPOKO (For Himself And As Representing Ndigunagu Village, Aguobu Iwollo) 3. OZO-EZEAKOR ANIAKOR … (For Himself And As Representing Amagu Village, Aguobu Iwollo, Ezeagu L.G.A.) 4. ROBERT OKONKWO (For Himself And As Representing Obinagu Village, Aguobu Iwollo, Ezeagu L.G.A.) 5. PAUL OKAFOR (For Himself And As Representing Owoloti Village, Aguobu Iwollo, Ezeagu L.G.A.) 6. SOLOMON OGUEJIOFOR (President-General) RESPONDENT(S)

 

JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling delivered on 11th December, 2014 in High Court of Enugu State sitting at Aguobu-Owa.

In the High Court (the Court below), the Respondents were the plaintiffs. The Appellants were the defendants.

The claim of the Respondents against the Appellants as contained in their amended statement of claim was for the following:
(a) A declaration that Warrant Chief Udebunu Uzoefune and H.R.H. Igwe C. E. Achu, all of Ezeonyia Village, Aguobu Iwollo having occupied the Stool of the Community in the past, it is now not the turn of Ezeonyia Village aforesaid to present or produce a traditional ruler for Aguobu Iwollo Autonomous Community of Ezeagu Local Government Area.
(b) A declaration that by virtue of the combined effect of Sections 37 and 38 of the Constitution of Aguobu Iwollo Autonomous Community, 2005, Ezeonyia Village is not qualified to present or produce a candidate for the Stool of the Community.
(c) A declaration that the 1st defendant is not, by virtue of Section (sic) 37 and 38 of the Constitution of Aguobu Iwollo Autonomous Community, qualified to contest for the Stool of Aguobu Iwollo Community.
(d) A declaration that by virtue of the provisions of Section (sic) 37 and 38 of the Constitution of the Community aforesaid, it is the turn of the 1st and 2nd plaintiffs’ Ndibunagu Village to present and or produce a candidate for the Stool of the Community.
(e) A declaration that the 1st plaintiff as against the 1st defendant, is entitled to and qualified, to be presented for the Stool of the Aguobu Iwollo Autonomous Community by virtue of his village of origin in the Aguobu Iwollo Community being next after Ezeonyia village in order of seniority.
(f) An injunction restraining the 1st defendant from presenting himself either to the Aguobu Iwollo Autonomous Community or to the Enugu State Government or its agency or functionary/ies, howsoever described and or constituted, whether for election or selection as the Igwe or Igwe-Elect of the Aguobu Iwollo Autonomous community or for installation as such by the Community or for recognition by the Enugu State Government or any organ thereof, for the purpose of his ascending onto the Stool of the Aguobu Iwollo Autonomous Community.
(g) An injunction restraining the 2nd defendant, whether by himself or through agents, servants or privies, howsoever, from in any manner whatsoever presenting the 1st defendant to the Enugu State Government or any organ or functionary thereof to be accorded recognition in whatever manner as the traditional ruler of Aguobu Iwollo Autonomous Community, or in any manner howsoever assisting him in that behalf.
(h) An injunction restraining the 1st defendant whether in person or through agents, servants or privies from in any manner whatsoever holding out or parading himself or allowing himself to be held out or paraded as the Igwe or Igwe-Elect of the Aguobu Iwollo Autonomous Community in the Ezeagu Local Government Area of Enugu State.

Against the 3rd and 4th defendants as follows:
(i) An order directing the 3rd and 4th defendants to cancel/withdraw the said letter of recognition issued to the 1st defendant as the Igwe-Elect of the Aguobu Iwollo Autonomous Community.

The Appellants counterclaimed for the following:
a) A declaration that it is the exclusive right of the Ezeonyia village of Aguobu Iwollo autonomous community to produce the 1st Igwe and traditional ruler of Aguobu Iwollo Autonomous community in accordance with the custom, tradition and Constitution of Aguobu Iwollo people.
b) A declaration that it is not the turn of the Ndibunagu village of Aguobu Iwollo autonomous community to produce the 1st Igwe and traditional ruler of Aguobu Iwollo autonomous community, in accordance with the custom, tradition and Constitution of Aguobu Iwollo autonomous community.
c) A declaration that the 1st plaintiff, being a civil servant, at the time of verification/selection exercise was not qualified to aspire and is thus disqualified from being nominated, elected, selected, enthroned and recognized as a traditional ruler, and remains disqualified until he had retired from the public service.

As unwieldy as the claim and counterclaim looks, the facts of the case are simple and short. They simply are, as to which of two villages was entitled to produce the Igwe after the demise of the previous Igwe.

According to the Respondents, the Constitution which all five villages drafted before the death of the last Igwe provided that Igweship would rotate among the five villages according to the seniority of the villages. Any village that had produced an Igwe before would have to give way to others. The village from which the 1st Appellant comes being most senior village had produced the last Igwe and a warrant chief equivalent to an Igwe in a previous era. That means the most senior village from which the 1st Appellant comes had produced two Igwes. Therefore, it was the turn of the next most senior village that is the village of the 1st Respondent to produce the Igwe. But the 1st Appellant usurped the Igweship to which he was not entitled.

The defence of the Appellants was that since this was the first time the stool became vacant after the coming into effect of the Constitution and since the community became autonomous, the rotation ought to start under the Constitution with the most senior village to continue from there down the line. Therefore, the 1st Appellant was qualified to contest for the Igweship.

​After considering the evidence led by both parties and addresses of their learned counsel, the Court below dismissed the counterclaim of the Appellants in part. It granted the prayer of the Appellants that the 1st Respondent being a civil servant at the time of the selection exercise was not qualified to contest for the Igweship.

It entered judgment in favour of the Respondents in respect of four reliefs:
It declared that it was not now the turn of the 1st Appellant’s village Ezeonyia village to produce the Igwe and it was not qualified to produce a candidate for the stool. That the 1st Appellant was not qualified to contest for the stool and that it was the turn of 1st and 2nd Respondents’ village to present a candidate for the stool of the community.

Dissatisfied with the judgment of the Court below the Appellants proceeded to this Court on appeal. They filed a notice of appeal on 3rd March, 2015. The notice of appeal was on four grounds of appeal. From the four grounds of appeal the Appellants in their brief of argument filed on 5th June, 2015 presented the following three issues for determination:
1. Whether the learned trial Judge was right in holding that Section 38 of the Aguobu Iwollo Autonomous Community Constitution, 2005, was meant to serve as a mandatory exception to Section 37(b) of the same Constitution, notwithstanding that the latter is mandatory and imposes an obligatory duty while the former is merely permissive and optional?
2. Whether upon a proper construction of the provisions of Section 37(b) and Section 38 of the Aguobu Iwollo Autonomous Community Constitution 2005 it was right, fair and proper for the learned trial Judge to conclude and hold that it was the automatic right of the Ndibunagu village to produce and present the 1st Igwe and Traditional Ruler of Aguobu Iwollo Autonomous Community and that the 1st Appellant is not qualified to contest for the stool of the said Autonomous Community.
3. Whether upon a proper construction of Section 38 of the Aguobu Iwollo Autonomous Community Constitution, 2005, it was right, just and fair for the learned trial Judge to conclude and hold that it was the automatic right of the Ndibunagu village of Aguobu Iwollo Autonomous Community to produce and present the first Igwe and Traditional Ruler of Aguobu Iwollo Autonomous Community in Ezeagu Local Government Area?”

​The Respondents in a Respondents’ brief filed on 28th May, 2016 but deemed duly filed and served on 24th January, 2018 submitted a single issue for determination. It is reproduced immediately hereunder:
“Whether by a combined reading or construction of Sections 37(2)(b) 1(i) and 38 of the Aguobu Iwollo Autonomous Community Constitution, 2005; it was still rightful for the Ezeonyia Village of the 1st Appellant to produce the next traditional ruler of the Aguobu Iwollo Autonomous Community, as against the next village, the Ndibunagu village of the 1st Respondent after the reign of H.R.H. Igwe C. E. Achu.”

None of the parties tied the issues presented for determination to any grounds of appeal.

Appellants counsel however argued all three issues formulated by the Appellants together.

​Arguing the appeal, learned counsel for the Appellants contended that it was wrong for the Court below to hold that upon a proper construction of Sections 37(b) and 38 of the Aguobu Iwollo Autonomous Community Constitution 2005 that Section 38 of the said Constitution was designed to be mandatory exception to Section 37 of the same Constitution and that it was an automatic right of the Ndibunagu village and not the Ezeonyia village to produce and present the 1st Igwe and Traditional Ruler of the Aguobu Iwollo Autonomous Community and owing to those provisions, the 1st Appellant was not qualified to contest for the stool of the aforesaid Autonomous Community. It was submitted that it was on the strength of the newly established Aguobu Autonomous Community that the Aguobu Iwollo Autonomous Community Constitution 2005 was made. The Court was referred to Section 37(b) of the Constitution of the Community.

It was submitted that the Ezeonyia village by the above constitutional provision was entitled to the right of selecting, producing and presenting the 1st Igwe and Traditional Ruler of the new Aguobu Iwollo Autonomous Community. It was submitted that the operative words in Section 37(b) of the Constitution are “… Igweship shall be rotated among the five villages.” This made it mandatory and did not create room for the exercise of discretion to the contrary. It was submitted that the binding effect of Section 37 would not be fettered by the permissive or discretionary provisions of Section 38 of the Constitution.

​Section 38 of the Constitution, it was argued, was neither mandatory nor automatic. The Court was referred to the phrase “allow others take their turn” in Section 38 of the said Constitution.

It is not disputed, learned counsel for the Appellant pointed out, that Ezeonyia village is the eldest family/village in the community.

Ezeonyia village, it was contended, did not violate the provisions of Section 38 of the Constitution of the Community because it was not mandatory on her to concede her constitutional and customary right duly recognized and preserved by the mandatory provisions of Section 37(2) (b) of the Constitution of the Community.

Learned counsel for the Respondents also referred the Court to Sections 37(2) (b), (1)(i) and 38 of the Aguobu Iwollo Autonomous Community Constitution, 2005 and submitted that the members of the community having subscribed to the Constitution, it was wrong to call in aid their native law and custom as the Appellants argue. The Court was referred to Edewor v. Uwegba (1987) NWLR (pt.50) 313.

It was submitted that the Constitution is binding on the entire community.

​The Court below, it was submitted, rightly decided the suit before it in accordance with Sections 37(2) and 38 of the Constitution of the Aguobu Iwollo Autonomous Community, 2005. That the Court below held that the 2nd village, Ndibunagu village was entitled on the basis of rotation (Ezeonyia village having acted in that capacity in the past) to allow the Ndibunagu village to take their turn in the interest of peace, justice and fair play.

In drawing the Constitution to govern their affairs the community, it was contended, did not exclude the period of the reign of H.R.H. Igwe C. E. Achu in the computation of when the Chieftaincy stool of the Aguobu Iwollo Autonomous Community would begin to operate, it was contended. Rather, the people in their wisdom, in the said Constitution made it abundantly clear that though the stool shall rotate amongst the villages, those villages which had held such positions in the past by whatever name called should allow other villages to take their turn in the interest of justice and fair play.

It was submitted that whereas, Section 37(2) (b) (1)(i) of the Constitution of the community is a general provision (stating that the stool shall rotate amongst the five villages of Aguobu Iwollo Autonomous Community, Section 38 is a special provision specifying the manner the rotation should be done. It was submitted that Section 38 is an exception to Section 37 (2)(b) (1)(i). The Court was referred to Aqua Limited v. Ondo State Sports Council (1988) 10-11 SC 31.

The Court was urged to hold that Section 37 is compatible with Section 38 of the Constitution of the community.

The issue for determination in this appeal is; whether from the combined reading of Sections 37 2(b) 1(i) and 38 the Aguobu Iwollo Autonomous Community Constitution 2005, it was the turn of the Ndibunagu village to produce the next traditional ruler of Aguobu Iwollo Autonomous Community after the reign of H.R.H. Igwe C. E. Achu.

Sections 37 2(b) 1(i) and 38 of the Aguobu Iwollo Autonomous Community Constitution 2005 provide as follows:
“S.37(2)(b)(1)(i)
(b) Method of Nomination: For Igweship position or other appointments-
​(1) In Aguobu Iwollo Town Community, Igweship shall be rotated among the five villages.
(a) Ezeonyia
(b) Ndibunagu
(c) Amagu
(d) Obunagu, and
(e) Owolloti”.

“S.38. In the past, different regimes in Nigeria had given different names to some of the posts mentioned in this Constitution e.g. councilor, Igwe, etc. Since new regimes will continue to come and go, this Constitution recognizes it as a mark of honesty and integrity for villages which had acted in these positions in the past to allow others to take their turn as and when due in the interest of peace, justice and fair play. Posts like the ones mentioned in Section 8 and 15(3b) which are to be filled in by election from every village are not included”.

It is trite law that the Courts over the years have evolved various canons of interpretation of statutes, one of them is the literal interpretation. The plain and literal interpretation of a statute will apply where the words of a statute are plain, clear and unambiguous. See Abegunde v. Ondo State House of Assembly & Ors (2015) LPELR – 24588 SC.

Another canon of interpretation is the liberal or purposeful interpretation. It is basic that one of the vital canons of interpretation of statutes is that a Court of record should be minded to make a broad interpretation or what is sometimes referred to as giving same a liberal approach. A Court should give a holistic interpretation to a statute. A Court should aim at giving a statute a purposeful interpretation. See National Union of Road Transport Workers & Anor. v. Road Transport Employers Association of Nigeria & Ors. (2012) LPELR – 7840 SC. It is clear from the provisions of the Abuogu Iwollo Autonomous Community Constitution 2005 especially the provisions reproduced above that the makers intended that the Traditional Rulership of the community should rotate among the five villages. Section 38 of the Constitution is intended to further effectuate that purpose. One of the definitions of “allow” according to Black’s Law Dictionary is: “4 To recognize as a right or privilege; to accord as a legal entitlement… the law allows it.” The law does not act in vain. Section 38 of the Constitution of the community was not intended by the makers of the Community Constitution to be toothless. It was intended to prevent previous villages that had produced an Igwe or his equivalent even when warrant officers were appointed from producing an Igwe until those villages which had never produced one have their turn. This can be seen even in the language of the provision which contains some emotionally coloured phrases like “honesty and justice … interest of peace, justice and fair play.” Ezeonyia, the village from which the 1st Appellant comes had produced at least one Igwe before. The 1st Appellant inspite of stiff opposition from other villages, presented himself for selection as Igwe and was eventually made Igwe and recognized by government.
The Court below in its judgment at page 432 found as follows:
“I find as a fact that persons from Ezeonyia village had been in positions of authority from the time Iwollo was under Ogbe and after it became an autonomous community. It seems to me that this is the reason Section 38 of the Constitution of Agbuobu Iwollo Autonomous Community tendered as Exhibit A in these proceedings talked of different regimes giving different names to posts mentioned in the Constitution such as Igwe. Even if one were to go along with the argument of the defendants that a warrant chief was merely a chief in the Igwe’s cabinet, Igwe C. E. Achu was a full-fledged Traditional Ruler and he remained in power even after the creation of Aguobu Iwollo till his death in 2005.
It seems to me that this was a proper case for Ezeonyia to concede the position of Traditional Ruler to the next in seniority, that is to say, Ndibunagu, in the interest of peace, justice and fair play. The insistence of the defendants that they should have the first shot in spite of the protests of the other villages in Aguobu Iwollo portrays some insensitivity to the interest of others.”

The Court below then held:
“From all the forgoing I find as a fact and hold that Ndibunagu village is entitled to produce the Traditional Ruler of Aguobu Iwollo Autonomous Community.“ See page 434 of the record.

I agree with the above findings and holding of the Court below.

​In drafting the Constitution to govern their affairs the community as rightly pointed out by learned counsel for the Respondents did not exclude the period of the reign of H.R.H. Igwe C. E. Achu. Rather the makers of that Constitution in their wisdom provided that even though the stool shall rotate amongst the five villages, those villages which had held such positions before by whatever name called should allow other villages to take their turn.

In the circumstances, the only issue for determination is resolved against the Appellants and in favour of the Respondents.

The appeal is dismissed and the judgment of the Court below affirmed by me.
Parties shall bear their costs of the appeal.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I endorse and concur that the appeal herein be dismissed. Both the literal canon of interpretation and the constructive canon, shows the clear intention of the drafters of the Aguobu Iwollo Autonomous Community compel obedience to the rotational basis of the throne on the principle of fair play, justice and honesty by specifically providing for the rotation of Igweship or Leadership and defining that the office included its variants of leadership by whatever nomenclature or designations it may have been called.
The invocation of the principles of statutory interpretation and the Black’s Law Dictionary of the meaning of “Allow” which was sought to be made a permissive phrase by the Appellants is apt and meets the justice of the case, as provided in the Section 37 and 38 of the community law in question.

I adopt and abide by the apt and succinctly just judgment in the lead as articulated by my brother JAMES SHEHU ABIRIYI, J.C.A. in dismissing the appeal.

MUHAMMED LAWAL SHUAIBU, J.C.A.: My learned brother JAMES SHEHU ABIRIYI, J.C.A., has afforded me an opportunity of previewing the judgment just delivered by him. I agree entirely with the reasoning and conclusion that the appeal is unmeritorious and should be dismissed. I too dismiss the appeal.

Appearances:

Chief Okenna Agubuzu For Appellant(s)

Chief M. O. Uzor For Respondent(s)