OGWUDU & ORS v. OFFIAUKWU & ORS
(2020)LCN/15384(CA)
In The Court Of Appeal
(ENUGU JUDICIAL DIVISION)
On Friday, September 18, 2020
CA/E/459/2016
RATIO
DUTY OF COURT: EVALUATION OF EVIDENCE
The law is trite that evaluation of evidence and ascription of probative value are the primary duties of the trial Court. The appellate Court has no business in interfering with the evaluation of evidence unless it is shown that the trial Court abdicated its duty or failed to properly evaluate the evidence or that its findings are perverse. See ATOLAGBE V. SHORUN (1985) LPELR-592 (SC) AT 31 (C-D). PER ABUBAKAR SADIQ UMAR, J.C.A.
PLEADINGS: POSITION OF THE LAW ON THE BINDINESS OF PLEADINGS AND THE ISSUES RAISED THEREIN
The law is trite that where a case is brought before a Court by pleadings and issues are joined on the pleadings filed by both parties, issues must be tried and settled on the pleadings. SeeWIRI & ORS. V. WUCHE & ORS (1980) LPELR – 3498 (SC) AT 18 (A). It is also trite that parties and the Court are strictly bound by the pleadings and issues raised by the parties in their pleadings. Their case succeeds or fails on the basis of their pleadings and evidence led. SeeETIM V. CLASEN VENTURES & ORS (2011) LPELR – 3827 (CA) AT 18-19 (G-D). PER ABUBAKAR SADIQ UMAR, J.C.A.
Before Our Lordships:
Ignatius Igwe Agube Justice of the Court of Appeal
Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal
Abubakar Sadiq Umar Justice of the Court of Appeal
Between
- MR. FRANCIS OGWUDU 2. HON. MARIUS UGBO (Sued For Themselves And As Representatives Of Ibite Okpatu Autonomous Community, Minus Plaintiff And 2nd & 3rd Respondents) 3. MR DIDACUS OBUTE 4. MR ROMANUS OGBOZOR APPELANT(S)
And
1. CHIEF HYACINTH OFFIAUKWU 2. JAMES NGWU 3. ADOLPHUS IGWE RESPONDENT(S)
ABUBAKAR SADIQ UMAR, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Enugu State delivered on 14th May, 2014 by Hon. Justice R. N Onuorah wherein the trial Court granted all the reliefs sought by the 1st Respondent as per his Amended Statement of Claim.
BRIEF STATEMENT OF FACTS
By an Amended Statement of Claim dated 11th November, 2013, the 1st Respondent as Plaintiff claimed against the Appellants, 2nd and 3rd Respondent as 1st – 6th Defendants respectively for the following reliefs:
“A. A declaration that having fulfilled all requirements for his formal presentation and installation as the Igwe/traditional ruler of Ibite Okpatu autonomous community, he is entitled against defendant or any of them against anybody else to be presented to be Ibite Okpatu general assembly and formally installed as the Igwe (traditional ruler) of Ibite Okpatu autonomous community in Udi local government area of Enugu State Nigeria.
B. A declaration that anything done or purported to have been done by the defendants either by themselves or as representing Ibite Okpatu town union or Ibite Okpatu community in representing any person to either Udi local government or Enugu State government as Igwe elect of Ibite Okpatu community is a nullity.
C. An order of Court declaring as a nullity any act or thing done by the defendants or either of them towards installation of any other person otherwise than the plaintiff as the Igwe of Ibite Okpatu or as Igwe elect of Ibite Okpatu autonomous community.
D. An order of perpetual injunction restraining the defendants either singly or collectively, their servants, agents and privies from interfering with plaintiffs said election and selection.
E. An order of perpetual injunction restraining the defendants either singly or collectively their servants, agents and privies from presenting themselves, or anybody else to the Ibite Okpatu General assembly to Ibite Okpatu people or Udi local government council or to Enugu State Government as Igwe elect or Igwe of Ibite Okpatu autonomous community.”
See pages 168 to 173 of the record of Appeal.
The case of the 1st Respondent as Plaintiff in the lower Court was that after being duly elected in accordance with the draft and approved Constitution of the Ibite Okpatu autonomous community in the year 2002, he was not presented to the Enugu State Government to be recognized and installed as the Igwe/traditional ruler of Ibite Okpatu autonomous community. He stated further that the Appellants as 1st to 4th Defendants respectively in the Lower Court played various roles in frustrating his presentation and installation as Igwe of the Community in 2002. That in the year 2007, the Appellants organized and participated in another election in which they elected another person, presented him to the Enugu State Government and whom the State government installed and gave a certificate of recognition as the traditional ruler of the Ibite Okpatu autonomous community. It was the case of the 1st Respondent that as provided in the Constitution approved by the Ibite Okpatu Autonomous Community in Udi Local Government Area of Enugu State in 2002, Ibite Okpatu autonomous community was divided into two zones which are Zone A and Zone B for administrative convenience. That after a General assembly meeting, the Community mandated Zone A comprising of Amani, Amaoka and Amaonugbu communities to produce the first Igwe/traditional ruler within one month. The 1st Respondent stated that it was pursuant to this mandate that Zone A conducted an election which he won being the candidate of Amani. He stated further that when it was time for his presentation to the Ibite Okpatu autonomous community General Assembly as the winner of the election, the 3rd Respondent who was then Chairman of the Ibite Okpatu General Assembly and whose duty it was to announce the result refused to announce him as the winner of the election. According to the account of the 1st Respondent, the 3rd Respondent refused to recognize him as the winner of the election but instead proposed a fresh election. The 1st Respondent stated that being aggrieved with the turn of events; he instituted an action at the lower Court to restrain the 3rd Respondent and anyone else from conducting any other election. That while the suit was pending in Court, the Appellants and the 3rd Respondent conducted another election in the year 2007 consequent upon which one Captain Anthony Ahanonu was elected as the Igwe of Ibite Okpatu autonomous community.
The case of the Appellants who at the trial Court were the 1st to 4th Defendants respectively was that the Ibite Okpatu autonomous community did not have an approved Constitution in the year 2002 that guided the election of the 1st Respondent and that if there was any such election as claimed by the 1st Respondent, same was unauthorized. The Appellants claimed that the Constitution of Ibite Okpatu autonomous community which contains the guides to select or elect the Igwe came into force in 2004 and therefore regulated the election of 2007 in which Captain Anthony Ahanonu was elected as Igwe of Ibite Okpatu autonomous community. According to the Appellants, the 1st Respondent did not participate in the election that was held in the year 2007. The Appellants stated that the general arrangement to conduct an election in 2002 spoken about by the 1st Respondent was not to the knowledge of Ibite Okpatu autonomous community and same was carried out without lawful authority. The Appellants stated further that Captain Ahanonu who was in 2007 the Igwe elect of Ibite Okpatu autonomous community was presented to the Government of Enugu State for recognition and was so recognized and has remained the Igwe of Ibite Okpatu autonomous community.
At the close of trial, the trial Court in a considered judgment delivered on 14th May, 2014 granted the reliefs sought by the 1st Respondent as per his Amended Statement of Claim. Aggrieved by the decision of the trial Court, the Appellants invoked the appellate jurisdiction of this Court vide a Notice of Appeal dated and filed on the 10th day of June, 2014. (See pages 230 – 233 of the record of Appeal).
In line with the Rules of this Court, the Appellants filed their Brief of Argument dated and filed 22nd November, 2018. The Appellants also filed a Reply Brief dated and filed 15th November, 2019. Both Briefs were deemed properly filed and served by an Order of this Court made on 2nd July, 2020. The said Briefs were settled by IKE MAXIMUS UGWUOKE ESQ. who at paragraph 3.00 of the Appellants’ Brief of argument formulated the following issues for the determination of the appeal to wit:
“Issue No 1:
Distilled from grounds 1 and 2.
Whether the purported zonal election which was inchoate and ended in fiasco in 2002 should be a measure to enthrone the plaintiff as the Igwe elect of Ibite Okpatu community considering the fact that the said election was dependent on an unexecuted constitution.
or
In the light of the facts of Exhibit A, whether the plaintiff had a case against the 1st – 4th defendants with regard to the purported and inchoate zonal election the plaintiff alleged he won.
Issue No 2
Distilled from ground 3
Whether failure of the lower Court to join suo motu captain Anthony Ahanonu in the suit did occasion serious miscarriage of justice as the trial Court nullified his election and enthronement as the Igwe of the community by the Enugu State government.
Issue number 3
Distilled from ground 4
Whether the election of 2007 was proper and valid in law.
Issue number 4
Distilled from ground 5
In the light of our legal jurisprudence, whether minutes makes a constitution valid and complete.
or
Whether a draft constitution can be ratified by minutes of meeting or another document.
Issue number 5
Distilled from grounds 6 and 7
Whether the evidence of parties and their witnesses were properly evaluated by the lower Court.
or
Whether the judgment of the lower Court did occasion a serious miscarriage of justice.”
The Respondents’ Brief of Argument on the other hand is dated and filed on 28th August, 2017. The said Brief was settled by C. M. O. NWEZE Esq. who at paragraphs 3.01 to 3.06 of the Respondents’ Brief distilled six issues for the determination of this appeal to wit:
“1. Whether there was indeed an election in 2002.
2. Whether the election of 6th October 2002 was inchoate.
3. Whether there was an election in the year 2007 and if so, whether it was proper.
4. Whether the Hon. Court ought to have suo motu joined Anthony Ahamnonu.
5. Whether the constitution was used when it ought not to have been used.
6. Whether the plaintiff has proved his case on balance of probabilities and entitled to the relief sought.”
The appeal was heard on 2nd July, 2020 wherein Counsel to the parties adopted their respective Briefs and made oral adumbration in respect of their postures in the appeal.
APPELLANT’S ARGUMENTS
On issue No.1 distilled by the Appellants, counsel submitted that from the totality of evidence adduced at trial, there was no legal issue arising from the outcome of the alleged election in Zone A between the 1st Respondent and the Appellants to sustain the judgment of the trial Court. He submitted further that since the 1st Respondent at trial admitted that the Constitution of 2002 which was used for the election of the 1st Respondent was not signed and could not have been in operation at that time, the said election was a nullity ab initio. He contended that evidence before the trial Court show that the said election was unsuccessful and ended in fiasco. He argued that the law is settled that one cannot place something on nothing and expect it to stand. He referred the Court to the case of J.C LIMITED V. EZENWA (1996) 4 NWLR PT 433 page 398 and submitted that contrary to the decision of the trial Court, the zonal election which was inchoate and ended in a fiasco in 2002 should not be a measure to enthrone the 1st Respondent as the Igwe elect of Ibite Okpatu Community.
On issue No. 2, counsel to the Appellants submitted that the trial Court ought to have joined the said Captain Anthony Ahanonu as a necessary party because the outcome of the suit will affect his rights as the Igwe elect. He submitted further that the failure of the trial Court in this regard occasioned a miscarriage of justice. He contended that the trial Court erred to have invoked the doctrine of lis pendis to nullify the election of 2007 and that the trial Court ought to have sustained the said election on the doctrine of necessity, the failure of which according to counsel made its decision perverse. He relied on the provisions of Section 17 of the Traditional Rulers law (Edict No. 14, 1981) of Enugu State and argued that 1st Respondent failed to exhaust all the internal mechanism open to him before instituting the action which is the subject of the instant appeal in the trial Court.
On issue No. 3, he submitted that the doctrine of necessity allows the Appellants to conduct an election to fill the position of Igwe of Ibite Okpatu autonomous community. He submitted further that evidence reveal that the general assembly of Ibite Okpatu community agreed that a fresh election should be conducted since the election of 2002 was unsuccessful. He submitted that the Enugu State government had to intervene to put an end to the dispute by supervising the election of 2007 wherein the said Captain Anthony Ahanonu emerged the winner and was issued a certificate of recognition by the Government. He argued that by virtue of the provisions of Section 4 of the Traditional Ruler Law of Enugu State, before the Governor recognizes any person as a traditional ruler of any town, the selection of the person must be in compliance with the Law. He therefore submitted that the Enugu State Government rightly recognized Captain Anthony Ahanonu as the traditional ruler of the community.
On issue No. 4, he submitted that a law only comes into effect upon execution. He submitted further that a subsequent document like a minute of a meeting cannot translate into signing of a constitution. That Exhibit A is incomplete and unsigned hence could not have qualified as a Constitution which an election can be based on.
On issue No. 5 distilled by the Appellants, counsel argued that the law is trite that the findings of facts by a Court must flow from the issues raised and the evidence adduced by the parties before it. He referred this Court to ABDULLAHI V KATSINA STATE HOUSING AUTHORITY (2002) FWLR PT. 15. He submitted that the decision of the trial Court in granting all the reliefs of the 1st Respondent and nullifying the election of 2007 did not reflect a proper consideration of the facts and evidence placed before it. He submitted further that the evidence on record show that there are material contradictions in the testimonies of the 1st Respondent’s witnesses at trial yet the trial Court accepted and relied on the said evidence when it ought to have discountenanced same.
Counsel contended that the trial Court referred to a non-existing evidence of DW1 and wrongly relied on same to disbelieve the evidence of PW3. He submitted that the failure of the trial Court to properly evaluate the evidence before it led to a perverse decision which occasioned a miscarriage of justice to the Appellants. Counsel referred this Court to LADUNNI V WEMA BANK LTD. (2011) 4 NWLR (PT. 1236). On the whole, he urged this Court to allow this appeal and set aside the judgment of the trial Court.
RESPONDENTS’ ARGUMENTS
On issue No. 1 distilled by the Respondents, counsel submitted that there was an election in 2002 which the 1st Respondent won convincingly and that the evidence before the trial Court show how the election was conducted and how the result was announced. He submitted further that the evidence before the trial Court reveal that the Ibite Okpatu Community in a general meeting held that Zone A should elect and produce the first Igwe within one month, and that it was in furtherance of this mandate that the Constitution of 2002 was drafted and approved for the Community with which the election of 6/10/2002 was conducted and won by the 1st Respondent.
On issue No. 2, counsel submitted that evidence abound to show that the election of 6/10/2002 which was conducted pursuant to a mandate issued to Zone A of Ibite Okpatu Community to produce the 1st Igwe of the Community in one month was successfully completed and the result was handed over to the Chairman of the Ibite Okpatu General Assembly for announcement to the general assembly. He submitted further there is no doubt as to the conduct or success of the election of 2002 and that the only grouse of the 1st Respondent was the refusal of the Chairman of the general assembly (6th defendant at the trial Court) to announce the result of the election. He submitted that the Ibite Okpatu Community had a draft Constitution which clearly provided for the mode and manner of conducting the 2002 election. Counsel submitted further that the result of the election was declared after the election and all the Secretary did was to send the already declared result to the general assembly meeting for announcement by the Chairman.
He contended that evidence before the trial Court especially that of PW1, PW3 and DW1 showed that the election of 2002 was conducted successfully and was won by the 1st Respondent. Relying on the case of ASAFA FOODS LTD V ALRAINE NIG. LTD. (citation not supplied), he argued that the evidence as to the successful and complete conduct of the 2002 election not being contradicted under cross examination or rebutted by the defence stands unchallenged and was rightly accepted by the trial Court as the truth of the matter. He submitted that the non-announcement of the result of Zone A election at Ibite Okpatu by the Chairman of the general assembly did not nullify the result of the election. He referred this Court to HON. MOHAMMED SALEH & ORS V. GARBA DATTI MUHAMMAD & ORS. (2011) ALL FWLR (PT. 581) PG. 1553 AT 1594-1595.
On issue No. 3, he submitted that the 1st Respondent went to Court because of the refusal of the then Chairman of the Ibite Okpatu General Assembly to present him to the General Assembly as the winner of the 2002 election. Counsel submitted further that the 1st Respondent filed a suit at the trial Court in 2002 immediately after his cause of action arose against the Appellants and that when the suit was struck out on technical grounds in 2004, the 1st Respondent immediately filed another suit in 2004 and promptly served all parties involved. He contended that after the 1st Respondent filed a suit challenging the acts of the Appellants for refusing to announce him as the Igwe elect of Ibite Okpatu Community having won the election of 2002, it was not competent for any person or group of persons to conduct another election to fill the position of the Igwe of Ibite Opkatu community while the suit was pending in the trial Court. He referred the Court to UBALE V DADIYA (2008) 15 NWLR (Pt.1111) 459.
He argued that the law is trite that once a party is aware of a pending suit particularly when he is served with the originating processes, he is bound to stay all actions respecting the subject matter of the suit until judgment is delivered and that in the event that a party adversely deals with the res of a pending litigation, such a party cannot be entitled to the equity of the Court. He relied on SHUGABA V. UBN PLC. (1999) 71 LRCN 2720 @ 2737. Flowing from the hills of the above, he submitted that the election of 2007 conducted by the Appellants during the pendency of the suit at the trial Court was done in contempt and total disregard to the trial Court and that the trial Court rightly declared the said election null and void.
On the consequences of the failure of the trial Court to suo motu join Captain Anthony Ahanonu as a necessary party to the suit, counsel to the Respondents submitted that the trial Court was right not to have made an order directing the said Captain Ahanonu to be joined as necessary party to the suit at trial because being a member of the Ibite Okpatu Community, he was already represented in the suit instituted against and defended by the 1st and 2nd Appellants in their representative capacity.
On issue No. 5, Counsel submitted that Exhibit B and C are crucial to the proof or otherwise of the Constitution used in 2002. Exhibit B and C are minutes of meetings held by the Ibite Okpatu community union on 28th July 2002 and 8th September, 2002 respectively. Both Exhibits as submitted by Counsel showed that the sections of the Constitution that provided for the election of Igwe within a month by Zone A was approved. He referred the Court to page 28 of the record of appeal. He submitted further that the evidence of DW3 who at the material time was Chairman of the Constitution drafting committee also corroborated Exhibits B and C. He submitted that the evidence of DW3 showed that the sections of the Constitution in respect of electing an Igwe were signed upfront because of the urgency of the matter and that when the entire Constitution was completed the whole document was signed. It was the submission of Counsel that the approved Constitution mandated Zone A to elect an Igwe within one month, and it was pursuant to this mandate that the election of 2002 was conducted and won by the 1st Respondent. In his final analysis on this issue, he submitted that the Exhibit A was valid and properly used in conducting the election of 2002, having been approved by the Ibite Okpatu community general assembly as shown by the evidence on record.
On issue No. 6, counsel argued that the law is trite to the effect that in an action predicated on declaratory reliefs, a plaintiff has to succeed on the strength of his case and not on the weakness of that of the defendant. He submitted that from the totality of the evidence adduced by the 1st Respondent at trial, he was entitled to all the reliefs sought and granted as per his Amended Statement of Claim. He therefore urged the Court to uphold the decision of the trial Court and to dismiss the appeal for lacking in merit.
REPLY BRIEF
The Appellants’ counsel committed pages 2 – 8 of the Reply Brief to respond to the submissions and arguments of counsel to the Respondents. I have considered all the submissions and arguments of the Appellants’ counsel in the reply brief and I am of the firm view that majority of the issues apt for the determination of the controversies between the parties have been covered in the Briefs of the parties elaborately summarized in the preceding part of this judgment.
RESOLUTION
After an examination of the issues raised by counsel before me, I am of the view that the issues stated below are apt and germane for the resolution of the instant appeal:
1. Whether from the circumstances of this case, the trial Court ought to have made an order directing the said Captain Anthony Ahanonu to be joined as a party to the suit?
2. Whether the trial Court properly evaluated the evidence led by the parties in granting the reliefs sought by the 1st Respondent as per his Amended statement of Claim?
Before I commence the resolution of the appeal, I must deprecate the act of Appellants’ counsel in bringing issues for determination in the alternative. I find this procedure alien to appellate practice and brief writing. Counsel although presented his issues 1, 4 and 5 in the alternative has through the backdoor distilled more than one issue from a ground of appeal, irrespective of how similar the issues distilled in the alternative are. It is the duty of counsel to carefully examine the issues distilled from his grounds of appeal and present for determination the issues that best convey the grievance(s) of his clients. This Court sitting in its appellate jurisdiction will not go into the voyage of choosing the issues most suited to the Appellants’ case. Having established the above, I shall proceed to the resolution of the appeal.
RESOLUTION OF ISSUE NO.1
The law is trite that where a case is brought before a Court by pleadings and issues are joined on the pleadings filed by both parties, issues must be tried and settled on the pleadings. SeeWIRI & ORS. V. WUCHE & ORS (1980) LPELR – 3498 (SC) AT 18 (A). It is also trite that parties and the Court are strictly bound by the pleadings and issues raised by the parties in their pleadings. Their case succeeds or fails on the basis of their pleadings and evidence led. SeeETIM V. CLASEN VENTURES & ORS (2011) LPELR – 3827 (CA) AT 18-19 (G-D).
The kernel of 1st Respondent’s grouse in the trial Court was that having fulfilled all the requirements for his formal presentation and installation as the Igwe (Traditional Ruler) of Ibite Okpatu autonomous Community, he is entitled against the Appellants, 2nd and 3rd Respondents and against any person to be presented to the Ibite Okpatu General Assembly and formally installed as Igwe (Traditional Ruler) of Ibite Okpatu Autonomous Community in Udi Local Government Area of Enugu state of Nigeria. According to the 1st Respondent’s account, it was illegal for the Appellants to have conducted another election in the year 2007 and to have installed one Captain Anthony Ahanonu (also a member of the community) and presented him for recognition to the Enugu State Government as the Igwe elect of Ibete Okpatu Autonomous Community.
The Appellants have contended that the trial Court erred not to have suo motu joined the said Captain Anthony Ahanonu who was installed and presented for recognition to the Enugu State Government as the Igwe elect of Ibite Okpatu Autonomous Community as a party to the suit. The law on joinder of parties has been settled in a plethora of judicial decisions. In the case of LSBPC V. PURIFICATION TECH. (NIG) LTD (2013) 7 NWLR (PT. 1352) P. 82 @ 113, the Supreme Court per Mohammad, J.S.C espoused the general principles of law which guides a Court of law in determining whether to join a party to an existing suit or not, the Court at pages 107 – 108 held thus:
“But who in law is a party whose joinder in the suit is necessary? This Court has in a number of decided cases laid down the test as to whether a person is a necessary party to be joined in a suit. For instance it has been held in the case of Peenok Investments Limited v. Hotel Presidential Limited (1982) NSCC 477, (1983) 4 NCLR 122. “The test as to whether there should be joinder of a party in a suit is based on the need to have before the Court such parties as would enable it to effectually and completely adjudicate upon and settle all the questions in the suit.”
Again, in an imprimatur of judicial authorities of this Court and that of the Supreme Court, it has been held that the main purpose for joinder of a party/parties in a suit is to make that person(s) bound by the result of the suit and the question to be settled therefore must be a question in the action which cannot be effectually and completely settled unless he/they be made a party or parties.
Flowing from the above, the questions I ask myself are whether Captain Anthony Ahanonu’s presence as a party to the suit at the trial Court was necessary enough for the trial Court to join him as a party or was the trial Court unable to effectually and completely adjudicate and settle all the issues before it without him being joined as a party to the suit?
It is on record that the 1st Respondent instituted the action which is the subject of the instant appeal against the 1st and 2nd Appellants in the capacity as the “Representatives of Ibete Okpatu Autonomous Community”. (See page 2 of the record of appeal). As at the time the suit was filed by the 1st Respondent in 2004, the said Captain Anthony Ahanonu was a member of the Ibite Okpatu community like every other member already represented by the 1st and 2nd Appellants since they were sued as representing the entire members of the Ibite Okpatu autonomous community. It was during the pendency of the suit at the trial Court that an election was conducted in 2007 and he emerged the “Igwe” of the Ibite Okpatu community. The argument of the Appellant that Captain Anthony Ahanonu ought to have been joined suo motu by the trial Court because he was the “Igwe” at that time is baseless and cannot be supported by reason. As a matter of the facts contained on record, the capacity in which the 1st and 2nd Appellants were sued was not challenged and was not an issue raised by parties in the trial Court. I therefore agree with the learned Counsel to the Respondents that the trial Court was right not to have joined Captain Anthony Ahanonu suo motu since he was already represented by the Appellants in their representative capacity and therefore was not a necessary party whose absence will prevent the trial Court from effectively adjudicating and settling all the issues in dispute between the parties in the suit.
RESOLUTION OF ISSUE NO.2
Next is to determine whether the trial Court properly evaluated the evidence led by the parties in granting the reliefs sought by the 1st Respondent as per his Amended statement of Claim.
As earlier noted the kernel of the 1st Respondent’s claim at the trial Court was that the Appellants and the 3rd Respondent (6th defendant at the trial Court) whose duty it was to announce his name and present him to the general assembly of the Ibite Okpatu community as the Igwe elect, refused to carry out that obligation despite his winning the election for the position in 2002. It was this refusal and denial of mandate that he challenged in the suit instituted at the trial Court. See page 168 to 173 of the record of appeal. After the close of trial, the learned trial judge in his considered judgment granted the reliefs of the 1st Respondent as per his Amended Statement of Claim.
The first limb of the Appellants’ grouse against the decision of the trial Court is whether the Zonal election of 2002 can be used to declare the 1st Respondent as the Igwe elect of Ibite Okpatu Community in the light of Exhibit A. The 1st Respondent who testified as PW1 said in his evidence-in-chief at pages 25 to 32 of the record that there was a valid election conducted by Zone A on 6th October 2002 and that the said election was conducted pursuant to a mandate given to Zone A to elect the first Igwe of the Ibite Okpatu Autonomous community by the general assembly of Ibite Okpatu Autonomous community.
This evidence although denied by the Appellants was elaborately corroborated by the evidence of the 2nd Respondent (5th Defendant at trial) who was referred to as DW1 at trial. (See page 60 of the record of appeal). The 3rd Respondent, one Mr. James Ngwu filed a separate Statement of Defence which can be gleaned at pages 36 – 37 of the record of appeal. He was the Secretary General of Ibite Okpatu Autonomous community Zone A as at the time of the election said to have been conducted in the year 2002. It is worthy of note that when DW1 testified at the trial Court on the 12th day of June 2010. On that day, the Appellants were absent including their counsel; hence DW1 was not cross examined by them. (See pages 59 and 60 of the record of appeal). Before then trial had begun with PW1 and PW2 (the 1st Respondent’s witnesses) testifying on behalf of the 1st Respondent. (See pages 25 – 34 of the record of appeal). This was also done in the absence of the Appellants or their counsel. It should be pointed out that trial only begun when the trial Judge was satisfied that all parties had been duly served with the several hearing notices but were absent and not represented on the dates scheduled for trial. (See pages 24, 25, 27, 31 and 33 of the record of appeal).
However, on the 20th day of July, 2006 when the matter came up for hearing, counsel to the Appellants applied for an adjournment to get the records of proceedings for the purpose of familiarizing himself with what had transpired in the absence of his clients. In activating their inalienable rights to cross-examine the witnesses whom had already testified, counsel to the Appellants filed an application dated 28th day of January 2011 seeking leave of the trial Court to recall and cross-examine PW1 and PW2 without mentioning DW1 (the 3rd Respondent who was 5th Defendant at trial)(see pages 63 – 68 of the records of appeal), hence leaving the evidence of DW1 was unchallenged. (See pages 59 to 60 of the record of appeal).
DW1 tendered Exhibit D without an objection (See page 60 of the record of appeal). Exhibit D contains an elaborate account of how the election of 6th October 2002 was conducted and how the 1st Respondent won his adversary by 78 to 6 votes. In evaluating the evidence of the DW1, James Ngwu, the trial Court held at page 220 – 221 of the record of appeal as follows:
“The 1st – 4th Defendants both in their pleadings and evidence denied that there were elections in 2002. Their reason for saying so was that as at 2002 the Constitution of Ibite Okpatu had not come into force but was still in draft. They also denied that the Plaintiff contested the elections and that he won them. However, the 5th Defendant who as (sic) already stated, admitted almost in its entirety the pleadings of the plaintiff, said otherwise. The 5th defendant is from zone A and recorded the proceedings of zone A zonal election. His report was admitted as Exhibit on 12th of September 2010. Apart from the evidence of the witnesses for the Plaintiff that there were primary elections in the villages that made up zone A, Exhibit D eloquently showed that such primary elections as referred to by the Plaintiff both in his pleadings and evidence took place. Exhibit D shows that there was primary elections in Amani the Plaintiff’s village and that the Plaintiff won. Exhibit D contains a detailed account of all that transpired both at the village and zonal levels of the elections in which the Plaintiff contested the elections as a candidate and won. Exhibit D also clearly shows that the 2002 primary and zonal elections were conducted pursuant to Section 5(2) of the Draft but approved Constitution of Ibite Okpatu.” (Underlining mine for emphasis).
The trial Court held further at pages 221 of the record of appeal that:
“Apart of the evidence of the 5th Defendant which evidence was not impeached at all to the effect that there were such elections which were in accordance with the draft but approved constitution of Ibite Okpatu, the D.W.3 under cross-examination said the aspects of the draft constitution touching on the Igweship of Ibite Okpatu were approved for the purposes of the election of the Igwe of Ibite Okpatu. In addition to Exhibit D and the evidence of D.W.3 Exhibit B bears eloquent testimony that the Constitution of Ibite Okpatu though unsigned as at 2002 was approved by the Ibite Okpatu General Assembly for the conduct of the elections into the Igweship of Ibite Okpatu. Exhibit B contains the minutes of the meetings of the Ibite Okpatu General Assembly in which the draft constitution was discussed and approved as a working instrument for the Igewship election in Ibite Okpatu.”
From the unchallenged testimony of the 3rd Respondent who was the 5th Defendant at trial and also in the light of Exhibit D tendered by him, I am of the firm view that the trial Court was right when he held at page 222 of the record of appeal that there were elections in 2002 into the Igweship of Ibite Okapu in which elections the 1st Respondent participated as a candidate and won the election. From the above, I do not agree with the submission of counsel to the Appellants at paragraphs 4.31 to 4.32 of the Appellants’ brief of argument that the trial Court misdirected itself as there is nowhere on record showing the evidence of the 3rd Respondent or that the said witness tendered a document marked Exhibit D.
The Appellants also contended that the Constitution which was tendered as Exhibit A is inchoate and was not in operation at the time of the said election. It is not in contention that the Constitution of the Ibite Okpatu community was in draft as at 2002 when the election was conducted. From the evidence on record, the 1st Respondent who testified as PW1 at trial stated in his evidence-in-chief at pages 27 to 32 of the record that the Ibite Okpatu Autonomous community general assembly on 27th August 2002 set up a constitutional drafting committee saddled with the responsibility of drafting a constitution for the election of the Igwe. The said document titled “The chieftaincy Constitution of Ibite Okpatu autonomous community” was tendered and admitted as Exhibit A. PW1 testified further that upon the preparation of Exhibit A by the committee in charge, same was read and explained to the general assembly in Igbo language which they understood, approved and accepted that it be used for the conduct of the election of 6/10/2002. PW1 tendered the minutes of the meetings where the above decisions and consensus was arrived at. The minutes of meeting dated 8th September 2002 and 28th July 2002 respectively were admitted and marked Exhibit B and C without objections. This evidence was neither challenged by the Appellant under cross-examination nor was any contrary evidence adduced by them. In addition to the evidence of PW1, DW3 under cross-examination at page 183 of the record of Appeal testified that:
“…The constitution was drafted prior to 2004… After Mike Eze declared his interest in Igweship of Ibite Okpatu, I became the chairman. Because of the urgency of Igwe, the sections of the constitution in respect of Igweship were made ready by signing the sections….”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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It is crystal clear that the evidence of DW3, the excerpts of which was reproduced above corroborated the evidence of PW1 and that of DW1 at pages 60 to 63 of the record of appeal to establish the fact that the relevant sections of the Constitution for the election of 2002 were signed and approved by the general assembly. The fact that the entire document was not signed at the time of the election does not erode the established fact on record that there was a general consensus of the people of Ibite Okpatu Autonomous community, granting approval to the use of the relevant sections of the document to conduct the election of 6/10/2002, that consensus and subsequent signing of the relevant sections for the election as shown above in my view qualify as an endorsement and execution of the approved relevant sections for the conduct of the election.
Next is to decide whether there was a valid election for the position of Igwe in Ibite Okpatu Community in the year 2007 as contended by the Appellants. It is on record that the 1st Respondent filed the suit at the trial Court in 2004 after the earlier one filed in 2002 was struck. It was also not in dispute that the Appellants were all served with copies of the suit and they participated in the trial. There is also no contention that there was an election in 2007 to elect the Igwe of Ibite Okpatu Community autonomous community. The only fact in dispute is whether the said election is valid in law in the light of the pending suit challenging the Appellants for their refusal to present and inaugurate the 1st Respondent after he won the election of 2002. The evidence on record reveals that the some of the Appellants were active participants in the organization and conduct of the election of 2007. DW2 in his evidence-in-chief at pages 107 to 108 of the record of appeal testified that:
“I served as the general secretary of Ibite Town Union at the time of the election to the Igweship stool… the election was held on the 22nd December 2007….”
The evidence of DW3 also shows that he actively participated in the election of 2007. DW3 testified at page 183 of the record that he participated in the election of 2007. Flowing from the above, it is evident that the Appellants as at the time the 2007 election was conducted were well aware of the pendency of this suit at the trial Court. The law is well established that once a party is aware of a pending suit, he is bound to stay all actions that will adversely affect the res or subject matter of the suit until the Court delivers its judgment. In the case of OBI V. INEC & ORS (2007) LPELR – 2166 (SC), the Supreme Court per, Oguntade, J.S.C. held as follows:
“Under the doctrine of lis pendens, parties to proceedings pending in Court ought not to do anything which may have the effect of rendering nugatory the judgment of the Court.”
The Appellants knowing fully that there was a pending suit in Court ought to have refrained from any act that will adversely affect the subject matter of the suit. Their decision to conduct the subsequent election despite the pendency of the suit at the lower Court was a total and unpardonable disregard for the institution of the Court and the election of 2007 cannot be said to be valid in law. A party who is in contempt of Court cannot seek shelter under the shed of equity. Consequently, I am of the firm view that the contention of the Appellants’ counsel at paragraphs 4.17 to 4.20 of the Appellants’ brief that the said election of 2007 was valid in law by virtue of the doctrine of necessity is untenable. The said doctrine does not apply to the facts and circumstances of the extant case and thus cannot by any stretch of imagination avail the Appellants.
Flowing from the hills of the above, I am of the unflinching view that the trial Court properly evaluated the evidence placed before it and I see no reason why I should disturb the findings contained in its judgment. The law is trite that evaluation of evidence and ascription of probative value are the primary duties of the trial Court. The appellate Court has no business in interfering with the evaluation of evidence unless it is shown that the trial Court abdicated its duty or failed to properly evaluate the evidence or that its findings are perverse. See ATOLAGBE V. SHORUN (1985) LPELR-592 (SC) AT 31 (C-D).
On the whole, I hereby resolve the two issues distilled by the Court against the Appellants and in favour of the Respondents. I find no merit in this appeal and same is hereby dismissed. The decision of the Enugu State High Court delivered on 14th May, 2014 by Hon. Justice R. N. Onuorah is hereby affirmed.
I award the sum of ₦100,000.00 as cost in favour of the Respondent and against the Appellant.
IGNATIUS IGWE AGUBE, J.C.A.: I have been opportuned to read in advance the lead Judgment of my Learned brother A. S. Umar, JCA; and I agree completely with his reasoning and conclusions on the two issues distilled for determination that the Learned Trial Judge carefully and dispassionately evaluated the totality of the evidence and came to the irresistible conclusion that the 1st Respondent was duly elected the Igwe of Ibite Okpatu Autonomous Community by virtue of the Constitution of 2002. He therefore ought to have been presented to the Enugu State Government to be recognized and installed as the Igwe/Traditional Ruler of his community.
Accordingly, the Election of another Igwe purportedly conducted by virtue of the 2007 Constitution was null and void.
I too shall adopt all that my Learned brother has said in this Appeal as mine and accordingly, I also hold that this Appeal is unmeritorious and same is hereby dismissed. I further affirm the Judgment of the Honourable Justice R.N. Onuorah of the Enugu State High Court delivered on the 11th day of May, 2014 and abide the consequential Order as to costs as made by my Learned Brother in the lead Judgment.
MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.: I have read the draft of the judgment delivered by my learned brother, ABUBAKAR SADIQ UMAR, JCA. I agree with his reasoning and conclusion that the appeal has no merit and is hereby dismissed.
Appearances:
IKE MAXIMUS UGWUOKE, ESQ. For Appellant(s)
M. O. NWEZE, ESQ. For Respondent(s)
