SAM & ORS v. AKPAN & ORS (2020)

SAM & ORS v. AKPAN & ORS

(2020)LCN/15321(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, July 08, 2020

CA/C/252/2018

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Philomena Mbua Ekpe Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Between

CHIEF COSMOS EDET SAM 2. CHIEF MAURICE ASUQUO IBANGA 3. CHIEF ETIM OKON AKPAN 4. CHIEF OFFIONG EYO UDO 5. CHIEF EDEM ETIM EFFIONG 6. OKON BEN UDO 7. MR. PIUS ETIM AKPAN APPELANT(S)

And

1. CHIEF BASSEY EDEM AKPAN 2. CHIEF EDET EDEM UDO 3. CHIEF EDEM OKON ETIM 4. MR. EMMANUEL BASSEY UDOEKONG (For Themselves And As Representing “Nung Iyak” Family Of Ifa Ikot Idang Village, Etoi Clan, Uyo Local Government Area Of Akwa Ibom State) RESPONDENT(S)

RATIO

WHETEHR OR NOT THERE ARE STATUTES THAT PROVIDE FOR THE EXHAUSTION OF DOMESTIC OR LOCAL REMEDIES BEFORE AN ACTION CAN BE INSTITUTED IN COURT

There are statutes which generally provide for the exhaustion of domestic or local remedies before an action can be competently instituted in the law courts. The Traditional Rulers Law, is one of such statutes. “Chieftaincy question” is defined as any question relating to the validity or the selection of appointment, approval of appointment, recognition, installation, grading deposition or abdication of a chief. See ARIBISALA v. OGUNYEMI (2005) 6 NWLR (Pt. 921) 212 SC. However, where as in the instant case, there is a chieftaincy dispute; failure to exhaust local remedies will oust the jurisdiction of the court to hear the matter. See OKOMALU v. AKINBODE (2006) 9 NWLR (Pt. 985) 343 SC. PER OWOADE, J.C.A.

COMPETENCE OF THE SUPREME COURT

Furthermore, the law has been well settled by the Supreme Court that a Court is competent if the following conditions are satisfied:
(i) It is properly constituted as regards numbers and qualifications of the members of the bench, and no member is disqualified for one reason or another;
(ii) The subject matter of the case is within jurisdiction, and there is no feature in the case which prevents the Court from exercising its jurisdiction; and
(iii) The case comes before the Court initiated by due process of the law and upon fulfilment of any condition precedent to the exercise of jurisdiction.
See GABRIEL MADUKOLU & ORS v. JOHNSON NKEMDILIM (supra); MARK v. EKE (1997) 11 NWLR (Pt. 529) 501; SLB CONSORTIUM LTD. V. NIGERIAN NATIONAL PETROLEUM CORPORATION (2011) 9 NWLR (Pt. 1252) 317 and OBARO HASSAN (2013) 53 NSCQR 311; (2013) 8 NWLR (Pt. 1357) 425. PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal by the Defendants/counter claimants Appellants against the judgment of Hon. Justice Margaret Mary Udoma sitting at High Court of Akwa Ibom State, Uyo Judicial Division in Suit No. HU/298/2015.

By a Writ of Summons and Statement of claim of 19/10/2015, the Respondents as Plaintiffs brought this action against the Appellants Defendants Counter Claimants claiming jointly and severally as follows:
(1) A declaration that, in consonance with the tradition, customs and usages of “Ifa Ikot Idang” Village of the Etoi Clan in Uyo Local Government Area of Akwa Ibom State, it is the turn of the Plaintiff’s enlarged family – “Nung Iyak Etuk Akpan Ufa Umoren Etuk Idang” – to select a person as the Village Head of “Ifa Ikot Idang” Village in Etoi Clan of Uyo Local Government Area of Akwa Ibom State;
(2) A declaration that the 4th Plaintiff, whom the Plaintiffs’ said family has duly selected to occupy the throne of Village Head of “Ifa Ikot Idang” as aforesaid, is the rightful person to hold the said position or rank under the customs aforesaid;
(3) A declaration that any recognition or intended recognition of the 2nd Defendant as would-be Village Head of “Ifa Ikot Idang” by the 1st, 3rd, 4th, 5th, 6th, and 7th Defendants or any other person or group of persons whosoever, is contrary to the norms, customs and practices of “Ifa Ikot Idang” Village relating to the selection, recognition and ascension of a person to the said village’s throne.
(4) A perpetual injunction restraining the 1st, 3rd, 4th, 5th, 6th, and 7th Defendants, their agent(s) servant(s) and privies or any other person claiming under them, from recognizing or dealing with the 2nd Defendant as though he were the Village Head of “Ifa Ikot Idang” Village as aforesaid; and
(5) A perpetual injunction restraining the 2nd Defendant from parading or representing himself as Village Head of “Ifa Ikot Idang” or from performing any function(s) or, otherwise, from acting as such Village Head.

The Appellants Defendants also counter-claimed in their Statement of Defence thus:
COUNTER CLAIM
1. The Defendants/Counter Claimants, the 1st Defendant is the Chairman Etoi Clan Council of Chiefs, Uyo Local Government Area. The 2nd Defendant is the Village Head of Ifa Ikot Idang Village while the 3rd, 5th, 6th and 7th Defendants are principal members of Ifa Ikot Idang Village. The 4th Defendant is the Village Head, Ifa Ikot Abiamkpo Village.
2. The 1st to 4th Plaintiffs are all from Nung Iyak Family in Ifa Ikot Idang Village in Etoi Clan within the jurisdiction of this court.
3. That in proof of counter-claim, the Defendants shall adopt paragraphs – 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, and 15 of the Statement of Defence to counter claim.
4. Wherefore, the Defendants claim from the Plaintiffs as follows:-
(i) That the 2nd Defendant was duly selected/elected on 24th May, 2014 by the three (3) out of four(4) families heads that makeup Ifa Ikot Idang Village in the village council hall Ifa Ikot Idang according to Law and custom Ifa Ikot Idang Village.
(ii) That the 4th Plaintiff should stop forthwith by parading himself as a village head of Ifa Ikot Idang or performing any work pertaining to that office.
(iii) Payment of Five Hundred Thousand Naira (N500,000.00) jointly or severally as damages for the 4th Plaintiff parading himself as the village head and performing the work due to that office.
(iv) One Hundred Thousand Naira (N100,000.00) cost of this action.

At the end of the trial and after the close of addresses, the learned trial Judge in his judgment on 2/11/2017 granted all the reliefs claimed by the Respondents Plaintiffs but did not pronounce on the Appellants Defendants counter claim.

Dissatisfied with this judgement, the Defendants Appellants filed three(3) grounds of Appeal in this Court on 13/11/2017. The relevant briefs of Argument for the appeal are as follows:
1. Appellants brief of Argument files on 22/6/2018. It is settled by Victor U. Essien, Esq.
2. Respondents brief of Argument was filed on 6/6/2019. It is settled by Emms Ekongson, Esq.
3. Appellants Reply brief of Argument was filed on 19/6/2019. It is settled by Victor U. Essien, Esq.

Learned counsel for the Appellants nominated three(3) issues for the determination of the appeal; they are:
(i) Whether the trial Court had jurisdiction to entertain and grant the reliefs sought by the Plaintiffs/Respondents in this action now on appeal as the condition precedent to the commencement of this action was not fulfilled by the Plaintiff/Respondents before the institution of this action from Ground 1 of the Notice of Appeal.
(ii) Whether the Plaintiffs/Respondents have on the evidence before the trial court prove their case on a balance of probability or on a preponderance of evidence to have warranted the trial Court granting all the reliefs sought in favour of the Plaintiffs/Respondents from Ground 11 of the Notice of Appeal.
(iii) Whether it is not against the principle of fair hearing for the trial Court to refuse to rule on the counter-claim of the Defendants/Appellants in his judgment from Ground 111 of the Notice of Appeal.

Learned counsel for the Respondents on the other hand formulated the following two (2) issues for the determination of the appeal. They are:
(a) By Section 9 of the Traditional Rulers Law, Cap. 134 Laws of Akwa Ibom State was the Respondents action premature such that it divested the lower Court of jurisdiction to hear and determine the same? and
(b) Is the lower Court’s judgment perverse or against the weight of the evidence?

On issue No. 1, Learned Counsel for the Appellants submitted that it is the duty of the Plaintiff (herein Respondents) in an action for declaration for the position of the Village Head or Clan Head in Akwa Ibom State to fulfil the pre-condition prescribed by law before access to court for redress.

He referred to the provisions of Section 8(1)(a) (b) (2), Section 10 and reproduced Section 9(1)(2) and (3) of the Traditional Rulers Law of Akwa Ibom State Cap. 134 2000. He submitted that the Respondents Plaintiffs in the instant case refused to exhaust the avenues prescribed by law as pre-condition for access to Court.

He submitted that in the instant case, there was no dispute on the selection of the 2nd Defendant Appellant as the Village Head of Ifa Ikot Idang Village in Etoi Clan, Uyo Local Government Area as the Ifa Ikot Idang Village Council did not write to the Local Government Area Council as required by law concerning any dispute on the selection of the 2nd Defendant Appellant.

That the Uyo Traditional Rulers Council where the Respondents Plaintiffs belong was not a party to the suit and is not aware of any dispute on the selection of the 2nd Defendant Appellant as the Village Head of Ifa Ikot Idang Village.

Also, that neither the Honourable Commissioner for Local Government and Chieftaincy Affairs nor the Governor of Akwa Ibom State was a party to the suit and none of them is aware of any dispute in the selection of the 2nd Defendant Appellant as the Village Head of Ifa Ikot Idang Village, Etoi, Uyo Local Government Area.

He argued that there is need to comply with statutes that create special rights. That the Respondents by approaching the Court without first exhausting the condition precedents went prematurely which makes the action incompetent and deprived the court of the necessary jurisdiction to entertain the action. On this, Appellants Counsel referred to the cases of WILLIAMS v. UDOFIA (2017) 7 NWLR (Pt. 1563) @ 354-355 (sic) 155 @ 168-169; AMAKA v. A.G, ONDO STATE (2012) 12 NWLR (Pt 1313) 67-68; BUKOYE, ESSA OF OFFA v. ADEYEMO (Pt. 1) Vol. 67 NSCQR @ Page 470.

He added that the Courts are creation of statute. They derive their powers and jurisdiction either under the Constitution which is the supreme organic, fundamental law or ground norm or under specific statutes. That in the instant case, the Respondents Plaintiffs having failed to fulfil the condition precedent before approaching the Court, the Court lacks the jurisdiction to hear and determine the matter.

Learned Counsel for the Respondents on the other hand submitted that there is no provision in Section 9 of the Traditional Rulers Law Cap. 134 which provides a bar to access to the Courts pending the fulfilment of a condition precedent. He added that Section 271 of the Constitution of the Federal Republic of Nigeria 1999 (as amended) vested unlimited jurisdiction on the High Court to hear and determine any civil proceedings. This power, he said would prevail if Section 9 of the Traditional Rulers Law is found to be inconsistent with it.
He urged us to resolve the issue against the Appellant.

Learned Counsel for the Respondents in this case could not see any limitation to the jurisdiction of the Court below in terms of a condition precedent under Section 9 of the Traditional Rulers Law of Akwa Ibom State. This requires some explanation.

There are statutes which generally provide for the exhaustion of domestic or local remedies before an action can be competently instituted in the law courts. The Traditional Rulers Law, is one of such statutes. “Chieftaincy question” is defined as any question relating to the validity or the selection of appointment, approval of appointment, recognition, installation, grading deposition or abdication of a chief. See ARIBISALA v. OGUNYEMI (2005) 6 NWLR (Pt. 921) 212 SC. However, where as in the instant case, there is a chieftaincy dispute; failure to exhaust local remedies will oust the jurisdiction of the court to hear the matter. See OKOMALU v. AKINBODE (2006) 9 NWLR (Pt. 985) 343 SC.
In the instant case, the dispute, between the Respondents Plaintiffs and the Appellants Defendants is governed by the provisions of Sections 8, 9 and 10 of the Traditional Rulers Laws Cap. 134 of Akwa Ibom State.
Section 9 (1) of the said Traditional Rulers Law provides thus:
(i) “Where there is a dispute in the selection of the Traditional Ruler and the dispute is such that the Clan or Village fails to select a person as the Clan Head or Village Head or where there is a dispute as to the right of a person to remain a Clan Head or Village Head under Section 13(1) of this Law, the Clan or Village as the case may be shall inform the Council of the area in writing of the existence of the dispute.
(ii) Where a council having considered the report of the selection made to it in accordance with Section 8(1) of this Law is not satisfied that, the person selected is the rightful person to be Clan Head or Village Head of the area concerned or where the council is not satisfied that the person selected is qualified in accordance with Section 13(1) of the Law to be accorded recognition as Traditional Ruler; the council shall declare that selection to be a disputed selection.
(iii) Within one month after receiving a report of a dispute under Sub-section (1) of this Section, or after declaring a selection to be disputed under Sub-section (2) of this Section the council shall proceed to inquire into the dispute with a view to ascertaining the person qualified by tradition, custom and usages and in accordance with the provision of this law to be Clan or as the case may be a Village Head.”
The implication of the above law is that a Plaintiff or a Clan or Village Head as in this case ought to inform the council of the area in writing of the existence of a dispute.
It is the consideration of the report by the Clan Head to the Council, in this case the Uyo Traditional Rulers Council that will lead the Council to inquire into such a dispute and it is only after the exhaustion of such local remedies that a Plaintiff has a right of access to the Courts.
A consideration of paragraphs 9, 10 and 11 of the Respondents Plaintiffs Statement of Claim will reveal that no such procedures were followed before the Respondent took the matter to Court;
9. Eteidung Ekpenyong died in December, 2013 thus rendering vacant the position of Village Head of “Ifa Ikot Idang”. In accordance with the custom aforesaid, it is the turn of the Plaintiffs’ “Nung Iyak” Family to select the deceased monarch’s successor from their number under the circumstances. In this way, the Plaintiffs’ “Nung Iyak” Family unanimously selected the 4th Plaintiff and presented him to the Etoi Clan Council as their nominee for the vacant stool. Without objection, the Etoi Clan Council – of which the 1st Defendant is the Chairman welcomed and acknowledged the 4th Plaintiff’s nomination. On that occasion, members of the Etoi Clan Council and the people of “Ifa Ikot Idang”, including the 1st, 2nd, 3rd, 4th, 5th, and 7th Defendants, made merry and reveled in the pomp and pageantry of that ceremony.
10. After the presentation aforesaid, the 1st Defendant and his Etoi Clan Council instructed the Plaintiffs to prepare themselves for the next stage – i.e. the presentation of the 4th Plaintiff to the Uyo Traditional Council for its recommendation of the former to the Governor of Akwa Ibom State for official recognition as Village Head of “Ifa Ikot Idang”. This instruction, the Plaintiffs took home and immediately applied themselves towards the realization thereof. The Plaintiffs’ arrangement and preparations for the purpose of fulfilling the requirements for the recommendation of the 4th Plaintiff to the Governor as aforesaid, were three-quarters completed when it became evident that, since May, 2014, the Defendants have hatched and are executing a macabre plot to present the 2nd Defendant – instead of the 4th Plaintiff – to the Uyo Traditional Council for the recommendation as Village Head of Ifa Ikot Idang.
11. Thus, on May 24, 2014 the 1st, 3rd, 4th, 5th, 6th and 7th Defendants unilaterally selected and presented the 2nd Defendant to the Etoi Clan Council, as their nominee to fill the empty stool aforesaid. In truth, on that same day, the said council – led by the 1st Defendant – sought to unveil the 2nd Defendant, as such a nominee, to the Uyo Traditional Council. They failed on account of the Plaintiffs’ opposition. On May 30, 2014 they attempted but failed again to achieve the said end.
The Respondents Plaintiffs failed to avail themselves of this step but chose to approach the Court directly by filing their Writ initiating the action at the trial Court. The Traditional Rulers Law of Akwa Ibom State was designed to ensure that the primary intervention in chieftaincy disputes in the state is conducted by the custodians of the tradition and culture of the people. Their successful intervention would ordinarily assist in decongesting the regular Courts of needless litigations and where they are unable to successfully resolve a dispute, subsequent layers of adjudication would benefit from their input made at the primary stage. EGUAMWENSE v. AMAGHIZEMWEN (1993) 9 NWLR (Pt. 315) 1 @ 25; WILLIAMS v. UDOFIA (2017) 7 NWLR (Pt. 1563) 155 @ 168-169.
A similar situation was considered by the Supreme Court in EGUAMWENSE v. AMAGHIZEMWEN (supra). In that case, Karibi – Whyte, J.S.C delivering the lead judgment lucidly enunciated the position of the law as follows:
It seems to me clear, that the intention of the legislature is to vest the jurisdiction for determining such disputes in the prescribed authority. In this case, both the right and the remedy have been provided for under the statute. This does not affect the general supervisory jurisdiction of the prescribed authority as an inferior Tribunal, which the High Court can exercise over inferior Tribunals. It is accepted as correct principle of law that where a statute creates a special right to which a special remedy is attached, resort cannot be had to any remedy other than provided for in the statute creating the right. See EGUAMWENSE v. AMAGHIZEMWEN (supra) at 22-23 paras. H-B.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In the circumstances therefore, I resolve this issue in favour of the Appellants/Defendants.

Appellants Issue No. 1 is not only a jurisdictional Issue but also a determinant issue. Having resolved the said issue in favour of the Appellants, I do not consider it necessary to consider any other issue(s) in this appeal. The appeal is meritorious and it is allowed.

The judgment and orders of Hon. Justice Margaret-Mary E. Udoma in Suit No. HU/298/2015 are accordingly set aside.
The said Suit No. HU/298/2015 is struck out for incompetence. Parties are to bear their respective costs.

PHILOMENA MBA EKPE, J.C.A.: I had the opportunity of reading in draft the judgment just delivered by my learned brother M. A OWOADE, JCA/PJ.

I agree entirely with the reasoning therein and conclusion arrived thereat. I also wish to emphasize the fact that the Traditional Rulers Law of Akwa Ibom State was designed to ensure that the primary intervention in Chieftaincy matters/dispute in the State is conducted by the custodians of the tradition and culture of the people. The Respondents/plaintiffs had indeed failed to exhaust the avenues prescribed by law as a pre-condition for access to Court. In this way, the procedure helps to decongest the Courts and leave room for speedy dispensation of other matters.
I am in total agreement with my learned brother in the lead judgment that the appeal is indeed meritorious primarily on this issue and it is no longer necessary to consider any other issue in the determination of this appeal.
This appeal is therefore allowed and the judgment and orders of the lower Court in Suit No. HU/298/2015 are accordingly set aside.
Appeal allowed.

HAMMA AKAWU BARKA, J.C.A.: My Lord Mojeed Adekunle Owoade, JCA has graciously obliged me with a copy of the judgment just delivered. I agree with the resolutions of the issue determining the appeal, and thereby allow the appeal and strike out the suit founding this appeal for being incompetent.

Appearances:

VICTOR U. ESSIEN, ESQ. For Appellant(s)

EMMS EKONGSON, ESQ. For Respondent(s)