THE HON. ATTORNEY GENERAL, ENUGU STATE v. CHIEF AGU MARCEL & ORS (2019)

THE HON. ATTORNEY GENERAL, ENUGU STATE v. CHIEF AGU MARCEL & ORS

(2019)LCN/13479(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 11th day of June, 2019

CA/E/99A/2014

JUSTICES:

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria

Between

THE HON. ATTORNEY GENERAL, ENUGU STATE – Appellant(s)

AND

1. CHIEF AGU MARCEL
2. ANIKE JUDE
3. RAYMOND EZE
(For themselves and representing Amadiligwe Village of Amakofia Quarter of Umuna Autonomous Community) – Respondent(s)

RATIO

WHETHER OR NOT AN AFFIDAVIT OF SERVICE SETTING OUT THE PLACE, MODE AND DATE OF SERVICE AND THE PROCESS SERVED IS A PRIMA FACIE EVIDENCE OF SERVICE OF A COURT PROCESS

The law is settled that affidavit of service setting out the place, mode and date of service and the process served is a prima facie evidence of service of a Court process. See OKOYE & ANOR V. CENTRE POINT MERCHANT BANK LTD (2008) 2505 (SC) AT 10-17. The best affidavit evidence of service is affidavit of service sworn to by the process server of the Court. This is in consonance with the provisions of Order 7 Rules (1), 18 and 19 and 22 of the High Court (Civil Procedure) Rules, 2006 of Enugu State which provides that:
(1) Service of originating and other processes shall be made by a Sheriff, Deputy Sheriff, Bailiff, Special Marshal or other officer of the Court. The Chief Judge may also appoint and register any Courier Company or any other person to serve Court processes and such person shall be called process server.
(2) Where a party is represented by a Legal Practitioner, service of Court process of which personal service is not required, may be made on such Legal Practitioner or any legal practitioner in his chambers or on the clerk or secretary of such chambers

18. Where a person to be served, whether alone or in concert with others, resists service or applies or threatens violence to the process server, the process server may leave the process within the reach of the person to be served, and this shall be deemed good and sufficient service, for all purposes.
19. (1) After serving any process, the process server shall promptly depose to and file an affidavit setting out the fact, date, time, place and mode of service, describing the process served and shall exhibit the acknowledgement of service, if any.
(2) After service, the affidavit shall be prima facie proof of service.
22. (1) A register shall be kept at the Registry in such form as the Chief Judge may direct for recording service of processes by any process server. The Registrar shall record therein the names of the plaintiff and defendant, the method of service, whether personal or otherwise, and the manner used to ascertain that the right person was served.
(2) Where any process was not served, the cause of failure shall be recorded in the register. Every entry in such register or certified copy thereof shall be prima facie evidence of the matters stated therein. PER BOLAJI-YUSUFF, J.C.A.

THE PURPOSE OF AFFIDAVIT OF SERVICE SWORN TO BY THE PROCESS SERVER OF THE COURT
The purpose of affidavit of service sworn to by the process server of the Court is to satisfy the Court that the process of which the law requires service on the other party has been duly served. Where the party required to be served disputes service, the affidavit of service must be the first and prima facie evidence to be produced before the Court along with the dispatch book or any other document where the party signed and acknowledged service. See CHEMIRON (INTL) LTD V. STABILINI VISINONI LTD.(2018) LPELR-44353 (SC) AT 20-23 (A). Where the party served refused to accept service or acknowledge same, Order 7 Rule 18 of the High Court (Civil Procedure) Rules, 2006 of Enugu State allows the process server to leave the process within the reach of the person to be served. The process server must then state the details of what transpired in his affidavit. See SOCIETE GEN. BANK (NIG.) LTD. V. ADEWUNMI (2003) LPELR-3081 (SC) AT 14 (E-F). EMEKA V. OKOROAFOR & ORS (2017) LPELR-41738 (SC) AT 127-128 (F-C). IDISI V. ECODRIL (NIG.) LTD & ORS. (2016) LPELR-40438 (SC) AT 29 (D-F). Where the deponent of an affidavit of service states the place, date, time and process served, the affidavit of service is rebuttable only by a counter-affidavit stating and supporting the denial of service by cogent and credible evidence. See AHMED V. AHMED & ORS (2013) LPELR-2143 (SC) AT 89-90 (F-D). PER BOLAJI-YUSUFF, J.C.A.

WHETHER OR NOT ONCE PARTIES HAVE SUBMITTED THEIR DISPUTE TO THE COURT FOR ADJUDICATION, THEY MUST ALLOW THE JUDICIAL PROCESS TO RUN ITS COURSE

The law is sacrosanct that once parties have submitted their dispute to the Court for adjudication, they must allow the law and the judicial process to run its course. None of them is allowed to embark on any action which may affect the subject matter of the dispute or the outcome of the case. See GOV. OF LAGOS STATE V. OJUKWU (1986) 1 NWLR (PT.18) 621. GARBA V. F.S.C.C. & ANOR (1988) LPELR-1304 (SC) 28-29 (C-E). Where a party takes an action during the pendency of a suit which affects adversely the subject matter of the suit or steals a match on his opponent, the Court will invoke its disciplinary power to reverse the action and return the parties to the status quo. PER BOLAJI-YUSUFF, J.C.A.

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): The respondents in this appeal instituted suit no. N/7/2008 at the High Court of Enugu State, Nsukka Judicial Division against Chief Frank Omeje, Mr. Charles Odo, Mr. Maximus Amoke and the appellant. They sought for the following reliefs:
a. A declaration that Amadiligwe village is the oldest and most senior village in Amakofia quarter of Umuna town and Amokofia is the 3rd in order of seniority of the three quarters in Umuna.
b. A declaration that by the system of rotation it is now the turn of Amadiligwe village, being the most senior of Amakofia quarter to select the Igwe of Umuna town in accordance with the custom and tradition of the town.
c. A declaration that Amadiligwe village and Amakofia quarter have not elected and/or presented the 1st defendant or anybody at all to the chairman of Igbo-Etiti Local Government Council or to the Enugu State Government for recognition as the Traditional Ruler (Igwe) of Umuna Community.
???d. A declaration that the 1st defendant not being from Amadiligwe village, Amakofia quarter cannot be elected/selected,

presented, recognized and coronated as the traditional Ruler (Igwe) of Umuna.
e. An order of Court setting aside the purported election/selection, presentation, recognition and/or coronation of the 1st defendant as the ruler (Igwe) of Umuna.
f. A declaration that the provisions of chapter 7, Section 7.2, subsection iv d, vi, ii, iii, iv, v, vi, vii, viii, x, a, and xi, of the purported constitution of Umuna Town, being contrary to the custom and tradition of Umuna Town, is null and void and of no effect.
g. An order nullifying the said sections.
h. An order of perpetual injunction restraining the 1st defendant from parading himself or holding himself out or being held out as the Traditional Ruler (Igwe) of Umuna.

The 1st, 2nd and 3rd defendants filed a joint statement of defence. The appellant was not a party to the suit initially but was joined as the 4th defendant at the Court below.He filed a spate statement of defence.
By their pleadings, the respondents case is that they and the 1st, 2nd and 3rd defendants are from Umuna in Igbo-Etiti Local Government Area of Enugu State which consists of three quarters namely

Oreti, Ufu and Amakofia in order of seniority. Oreti quarter consists of four Villages namely Amewa, Diodeke, Isemele and Umuohaka in order of seniority. Ufu quarter used to have one village but now has three namely Umueze Umuna Uwelu and Umuezikoro. Amakofia quarters to which the respondents belong consists of Amadiligwe, Ameze Okenyi Ezenushi, Adiko, Ubagu and Dikwu. According to the respondents, every position or shares in Umuna community, including Igweship or Chieftaincy positions are rotated in order of seniority beginning from the most senior village of the most senior quarter to the village level. Chief Ugwuegede who reigned as the Igwe of the community from 1976 to 1992 was elected from Ufu quarter. He was the eldest in the quarter. He was elected/selected by rotation in accordance with the custom and tradition of Umuna. It was the rotational arrangement by the various quarters and villages based on the custom and tradition of Umuna that made the traditional headship of Umuna to move from Oreti quarter after the reign of Chief Ovuaku Nwodo to late Chief Ugwuegede Nwezike of Ufu quarter. Based on the said principle of rotation according to seniority,

it is now the turn of Amadiligwe people, the eldest village in Amakofia quarters to select and present the traditional ruler or Igwe of Umuna town in accordance with the custom and tradition of the town. For the first time, the town decided to have a constitution that will govern the town and the process was commenced. When the respondents discovered that sections of the draft constitution relating to the selection and presentation of traditional ruler of Umuna was contrary to the custom and tradition of the town, they wrote a petition dated 23/7/2005 and protested the introduction of election of the Igwe by an electoral college to the Chairman, Igbo Etiti Local Government and same was removed. Inspite of the protest, the Constitution Draft Committee Surreptitiously introduced Section 7.2 (iv) d, vi, ii, iii, iv, v, vi, vii, vii, x and xi into the purported final copy of constitution which drastically deviated from the long standing custom and tradition relating to selection and presentation of a traditional ruler. When the respondents became aware that Chairman and Secretary of Umuna General Assembly had invited members of Amakofia quarter to purchase forms

for the election by electoral college and that three persons have already purchased the forms, that the defendants intend to hold election for the purpose electing an Igwe inspite of the pendency of suit No. N/38M/2006 and a motion for interlocutory injunction, the respondents applied for and obtained an order of interim injunction on 25/8/2006. Inspite of the service of the enrolled order of interim injunction on the 2nd and 3rd respondents they went ahead with the election, purportedly selected/elected the 1st respondent and presented him to the Chairman of the Local Government on 30/8/2006. The 1st, 2nd and 3rd defendants admitted that positions in the community including Chieftaincy are rotated in order of seniority, but contend that the practice or the custom is restricted to the quarters level only and that the seniority ranking of Amakofia quarters is Ameze, Ezenushi, Ubagu, Amadiligwe, Umueze Amakofia and Dukwu. They confirmed that in furtherance of the will of the people to rotate the position of traditional ruler of the town, Chief Ugwuegede Nwezike was from Ufu quarter was selected as the Igwe in 1976. But he was neither the oldest man nor from the

most senior village in Ufu. They asserted that there was a 1976 constitution before the 2005 Constitution. They also asserted that the 2005 Constitution was signed by the 1st respondent’s wife. They stated that when it became clear that Amakofia could not produce a consensus candidate as demanded of it by the community, the General Assembly decided to apply the provisions of the 2005 Constitution which provided for an election. They denied ever seeing or being served any enrolled order of Court.

The case went to trial. The respondents as the plaintiffs called six witnesses. The defence also called a total of six witnesses. Final written addresses were filed and exchanged. In its considered judgment delivered on 17/7/2013, the Court below granted all the reliefs sought by the respondents. The appellant is dissatisfied by the judgment and has appealed against the judgment by an amended notice of appeal filed on 2/3/2018 and deemed as properly filed and served on 28/3/2019. The seven grounds of appeal without their particulars are stated below:

GROUND ONE
The judgment is against the weight of evidence.
GROUND TWO
The learned

trial judge erred in law when he held that the appellant (and indeed all the defendants) was in disobedience of an order ex-parte made in suit no. N/38M/2006: Emachi Nwodo & Ors. V. Cletus Ogbaji & Ors by recognizing Chief Frank Omeje as Igwe Elect of Umuna Community on 25/8/2006 when there was no proof of service of the order ex-parte on them.
GROUND THREE
The learned trial judge erred in law when he held that the plaintiffs/respondents??? Amadiligwe village was entitled to the Chieftaincy village, both of Amakofia quarters of Umuna town.
GROUND FOUR
The Court below erred in law when it relied on native law and custom of Umuna/Amadiligwe people instead of the constitution of the community in granting judgment to the plaintiffs/respondents.
GROUND FIVE
The learned trial judge erred in law when after finding that the constitution of Umuna Town, 2005, was forged, went on to base his judgment on the said constitution.
GROUND SIX
The learned trial judge erred in law when he held or found that the signatures and thumb print on the 2005 constitution of Umuna Community was forged.
GROUND SEVEN

The learned trial judge erred in law in law by failing to apply the doctrine of estoppel against the respondent from prevaricating in relation to the constitution of Umuna 2005 in relation which they had accepted and acted upon.

The appellants brief was filed on 2/3/2018 and deemed as properly filed and served on 28/3/2019. The respondents brief was filed on 23/4/18. The reply brief was filed on 8/10/18 and deemed properly filed and served on 28/3/19.
The appellants counsel formulated the following issues for determination:
1. Whether without the respondents proving that the Ex-parte Order in an earlier application No. N/38M/2006: Emachi Nwodo & Ors V. Cletus Ogbaji & Ors. was served on the appellant (or on the other defendants in the suit), the trial Court was right to hold that the appellant (with the other defendants) was in disobedience of that order ex-parte. (Ground 2).
2. Whether or not learned trial judge was right in replying on the native law and custom of Umuna/Amadiligwe people as against the respondents in the suit. (Ground 4).
3. Was the learned trial judge right in basing his

judgment on the constitution of Umuna community, 2005, after making a finding that the said constitution was forged? (Ground 5)
4. Whether or not the learned trial judge was right in holding that the signatures and thumbprint on the 2005 constitution of Umuna Town were forged, without the criminal allegations being proved as required by law. (Ground 6).
5. Whether the respondents (as plaintiffs) proved their entitlement to the reliefs claimed in the suit, to have enabled the learned trial judge to enter judgment in their favour (Ground 1 and 3).
6. Whether the Court below was right in not applying the doctrine of estoppel against the respondents with respect to their challenge to the chieftaincy stool after embracing the constitution of Umuna Town, 2005. (Ground 7).

The respondents counsel formulated the following issues for determination:
1. Whether the learned trial judge was right when he held that the appellant and the 1st to the 3rd defendants were in disobedience of the order of interim injunction and that there was no valid traditional ruler (Igwe) election in Umuna on the 25/8/2006.
2. Whether the

learned trial judge was right when he relied on the native law and custom of Umuna community and the principle of rotation in deciding this case.
3. Whether exhibit B is the valid constitution of Umuna and whether the learned trial judge was right when he held that the constitution of Umuna community/town was forged.
4. Whether the respondents as plaintiffs at the trial Court proved their case/claim as required by the law and whether the appellant and the 1st to the 3rd defendants at the trial Court adduced credible, consistent and reliable evidence in defence of the respondents case/claim.

I have considered the issues formulated by counsel for the determination of this appeal along with the grounds of appeal, I am of the view that the issues thrown up for determination in this appeal are:
(1) Whether the Court below was right when he held that the election of 25/8/2006 was in flagrant disobedience of the order of the High Court.
(2) Whether the judgment of the Court below is against the weight of the evidence adduced.
???
On issue 1, the appellants counsel submitted that there was no proof of service or oral

evidence that the ex-parte order made on 25/8/2006 was ever served on the defendants including the appellant before or at the time of the election of the Igwe on the same day or until his presentation to the government, the Court below erred in law when he held that the defendants/appellant were in flagrant disobedience of the ex-parte order. He referred to NDAYAKO V. JIKANTORO & ORS (2004) ALL FWLR (PT.216) 390 AT 397. NIPSS V. KRAUS THOMPSON ORGANIZATION LTD. (2001) FWLR (PT.45) 702 AT 715.

The respondents counsel referred to the evidence of PW1 that the enrolled other was served on the defendants between 10am and 12 noon on 25/8/2008. He submitted that the Court below was right when he held that the 1st and 3rd defendants were in disobedience of the order of interim injunction. He referred to the evidence of DW2, DW3 and DW4 on when the election of Igwe started. He submitted that their evidence contradicts each other. On the effect of contradictions in the evidence of witnesses, counsel referred to MALUMFASHI V. KARFI (2010) ALL FWLR (PT.507) 33 AT 58 (B).
The appellants counsel in what he referred to as a reply brief again

formulated the following issues for determination:
1 Whether the respondent have the locus standi to institute this suit at the lower Court.
2 Whether the principle of estoppels should not be imported to stop the respondents from challenging an already concluded election which they participated in.
3 Whether the appellant was in violation of Court order in suit no. E/38M/06 or any order of Court.

The purpose of a reply brief as clearly stated in Order 19 Rule 5 (1) of the Court of Appeal Rules, 2019 is to deal with all new points arising from the respondents brief. The essence of reply brief is not to reopen argument already canvassed in the appellants brief or to raise new issues not related to any submission of the respondent or to formulate new issue (s). See EROMOSELE V. F.R.N (2018) LPELR-4385 (SC) AT 11 (A-B). The appellants reply not only re-argued the appeal but also raised a fresh issue not covered by the grounds of appeal and not raised either in the appellants brief or the respondents brief. The reply is in gross breach of the provisions of Order 19 Rule 5 (1) of the Court of Appeal Rules

it is hereby discountenanced.

RESOLUTION:
The law is settled that affidavit of service setting out the place, mode and date of service and the process served is a prima facie evidence of service of a Court process. See OKOYE & ANOR V. CENTRE POINT MERCHANT BANK LTD (2008) 2505 (SC) AT 10-17. The best affidavit evidence of service is affidavit of service sworn to by the process server of the Court. This is in consonance with the provisions of Order 7 Rules (1), 18 and 19 and 22 of the High Court (Civil Procedure) Rules, 2006 of Enugu State which provides that:
(1) Service of originating and other processes shall be made by a Sheriff, Deputy Sheriff, Bailiff, Special Marshal or other officer of the Court. The Chief Judge may also appoint and register any Courier Company or any other person to serve Court processes and such person shall be called process server.
(2) Where a party is represented by a Legal Practitioner, service of Court process of which personal service is not required, may be made on such Legal Practitioner or any legal practitioner in his chambers or on the clerk or secretary of such chambers

18. Where

a person to be served, whether alone or in concert with others, resists service or applies or threatens violence to the process server, the process server may leave the process within the reach of the person to be served, and this shall be deemed good and sufficient service, for all purposes.
19. (1) After serving any process, the process server shall promptly depose to and file an affidavit setting out the fact, date, time, place and mode of service, describing the process served and shall exhibit the acknowledgement of service, if any.
(2) After service, the affidavit shall be prima facie proof of service.
22. (1) A register shall be kept at the Registry in such form as the Chief Judge may direct for recording service of processes by any process server. The Registrar shall record therein the names of the plaintiff and defendant, the method of service, whether personal or otherwise, and the manner used to ascertain that the right person was served.
(2) Where any process was not served, the cause of failure shall be recorded in the register. Every entry in such register or certified copy thereof shall be prima facie evidence of the

matters stated therein.
The purpose of affidavit of service sworn to by the process server of the Court is to satisfy the Court that the process of which the law requires service on the other party has been duly served. Where the party required to be served disputes service, the affidavit of service must be the first and prima facie evidence to be produced before the Court along with the dispatch book or any other document where the party signed and acknowledged service. See CHEMIRON (INTL) LTD V. STABILINI VISINONI LTD.(2018) LPELR-44353 (SC) AT 20-23 (A). Where the party served refused to accept service or acknowledge same, Order 7 Rule 18 of the High Court (Civil Procedure) Rules, 2006 of Enugu State allows the process server to leave the process within the reach of the person to be served. The process server must then state the details of what transpired in his affidavit. See SOCIETE GEN. BANK (NIG.) LTD. V. ADEWUNMI (2003) LPELR-3081 (SC) AT 14 (E-F). EMEKA V. OKOROAFOR & ORS (2017) LPELR-41738 (SC) AT 127-128 (F-C). IDISI V. ECODRIL (NIG.) LTD & ORS. (2016) LPELR-40438 (SC) AT 29 (D-F). Where the deponent of an affidavit of service

states the place, date, time and process served, the affidavit of service is rebuttable only by a counter-affidavit stating and supporting the denial of service by cogent and credible evidence. See AHMED V. AHMED & ORS (2013) LPELR-2143 (SC) AT 89-90 (F-D).

In the instant case, the respondents averred in paragraph 26 of their statement of claim and 27 of PW1s statement on oath that the enrolled order of interim injunction was served on 2nd and 3rd defendants on 25/6/2008, the same day it was obtained from the Court below. Under cross-examination, he said the order was served on the 1st defendant in his house between 10 and 12 O clock. The process was also served on the 2nd and 3rd defendants between 10 and 12 O Clock the same day. There was no service on the appellant because he was not a party to the suit. In his paragraph 23 of his additional statement, on oath, PW1 stated that:
23. That the 2nd and 3rd defendants were duly served with the enrolled order of this Honourable Court made on the 25/8/2006 which was duly served on them on the said date the order was made restraining them from conducting the said

election/selection. On the said date the baliff of High Court Enugu, Donchester Okeke who served them the said interim order was almost beating up by the 2nd and 3rd defendants and their cohorts but the said baliff was able to throw the said processes on them.

It is therefore clear that the enrolled order was allegedly served by a process server of the High Court. No affidavit of service sworn to by the process server was tendered before the Court. The result is that the prima facie evidence of service as required by law was not before the Court. Evidence of service by a party seeking to prove service of Court process effected by the Court process server without an affidavit sworn to by the Court process server stating the time, the place, date and the mode of service is not sufficient and cannot be relied upon as prove of service by the Court. The defendants denied service or knowledge of the interim order of injunction, it was therefore incumbent on the respondents to produce the affidavit of service sworn to by the Court process server who allegedly served the process on the respondents. It is a vital evidence which the respondents failed to

place before the Court. Before a party can be said to be in disobedience of an order ex-parte, it must be proved by cogent and credible evidence that the order was served or brought to his attention. A party that is unaware of the existence of an order of Court made in his absence, particularly an ex-parte order cannot be said to be in disobedience of the order. There is no credible evidence to show that the defendants were aware of the existence of the interim order of injunction. The finding of the Court below that the defendant conducted the election on 25/8/2006 in flagrant disobedience of the Court made on the same day cannot be allowed to stand as it is not supported by credible evidence as required by law. Issue 1 is resolved in favour of the appellant. However, exhibits E and E1 clearly established the fact that suit no. N/38M/2006 was pending at the time they conducted the election. The conduct of the election while suit no N/38M/2006 was pending is contemptuous and a gross disrespect for the Court and rule of law. The defendants filed a counter affidavit in that suit on 13/7/2006 and 6/12/2006. They were fully aware of the pendency of the suit and

the motion for interlocutory injunction seeking to restrain them from conducting the election. Yet, they proceeded to conduct the election. The law is sacrosanct that once parties have submitted their dispute to the Court for adjudication, they must allow the law and the judicial process to run its course. None of them is allowed to embark on any action which may affect the subject matter of the dispute or the outcome of the case. See GOV. OF LAGOS STATE V. OJUKWU (1986) 1 NWLR (PT.18) 621. GARBA V. F.S.C.C. & ANOR (1988) LPELR-1304 (SC) 28-29 (C-E). Where a party takes an action during the pendency of a suit which affects adversely the subject matter of the suit or steals a match on his opponent, the Court will invoke its disciplinary power to reverse the action and return the parties to the status quo.
On issue 2, the appellants counsel submitted that the Court below inspite of recognizing the Constitution of Umuna Town proceeded to rely on the native law and custom of the people even though the respondents did not challenge chapter 13 of the Constitution relating to Chieftaincy nor did they ask the Court to declare the customary law of their

Umuna Community as the applicable law and the Constitution did not provide for village seniority or application of native law and custom in the selection of a Traditional Ruler of the Community. He contended that the people of Umuna Town had agreed to contract out of their native law and custom by drawing up the constitution. He argued that the allegation that the constitution of which only Chapter 7 Section 7.2 was challenged was forged is a criminal allegation which was not proved beyond reasonable doubt as required by law. He referred to OKAFOR V. OKAFOR & ORS (2014) LPELR-23561. Counsel submitted that the Court below wrongly held that the respondents have the locus standi to institute the suit when they were not parties or candidates for the position of Igwe of Umuna Town and did not show that their Amadiligwe Village as the most senior of the Villages in Amakofia quarter was either by the Constitution or by any other authority entitled to produce the Igwe. He referred to AROWOLO V. OLOWOOKERE (2012) ALL FWLR (PT.606) 398 AT 421 EMEZI V. OSUAGU (2005) 12 NWLR (PT.939) 340.
On the doctrine of estoppel, the appellants counsel submitted that

the respondents are estopped from challenging the 2005 Constitution because the draft was never challenged by anybody including the respondents before it was signed by the representatives of the community and announced during the deliberations of the community that the provisions of the constitution would be resorted to. He further submitted that equity aids the vigilant not the indolent. He referred to OBANDE OBEYA V. F.B.N. PLC (2010) LPELR-4666 (CA).

In his response, the respondents counsel submitted that the combined effect of paragraphs 5, 6 and 10 of DW1s statement on oath and the evidence of DW5 and DW6 under cross-examination is that positions in Umuna Town are shared on the basis of seniority and what is admitted needs no further proof. He referred to the entire evidence on record in respect of the signatures on the Constitution. He submitted that the Court below was right when it held that the constitution was forged. He argued that apart from the 1st defendant not having been validly elected or selected by the Umuna people, he was not validly presented in accordance with the provisions of their purported constitution, Exhibit B as

there is no evidence on record that he ever purchased the Igwe election form or that he filled and submitted it. He urged the Court to invoke the provisions of Section 167(d) of the Evidence Act against the 1st defendant for failure to produce the form. Counsel also submitted that it is the duty of the community to select/elect/nominate a candidate to fill a vacant stool from members of the ruling house for the Igweship/Chieftaincy stool, while the role of the executive council is to approve or set aside the selection of a traditional ruler who was not validly elected/selected as in this case and when the executive fail to set aside the selection/election of the traditional ruler that was not validly elected/selected, then the Court has the jurisdiction to set same aside. The Court below was therefore right when he set aside the purported election/selection and presentation of the 1st defendant at the trial Court as the traditional ruler of Umuna community because it was not validly done. OGAGA V. UMUKORO (2012) ALL FWLR (PT.614) 41 AT 61. In EZE V. OKECHUKWU (2002) 18 NWLR (PT.799) 384 AT 370 (F).

RESOLUTION:
The dispute between the parties

is solely about the native law and custom governing the election or selection of Igwe of Umuna Town. By their pleadings and evidence, both parties agreed that positions in Umuna Town including Igwe are shared according to seniority. Their point of dispute is that the defendants at the Court below contended that seniority terminate at quarter level while the respondents insisted that seniority extends to the village level. In support of their contention, the respondents tendered Exhibit D. The defendants tendered a document which they referred to as the 2005 constitution. They insisted that the respondents quarter could not present a consensus candidate, hence the application of the constitution. The Court below carried out a detailed analysis of the entire evidence led, evaluated same and ascribed probative value thereto. The Court made the following salient findings: (1) That the respondents established their locus standi to institute the suit. (2) That right from the time immemorial, the people of Umuna attached some measure of importance to seniority both at quarters and villages levels. (3) That the 2005 constitution was made purposely to oust

Amadiligwe village from their position as the first village by seniority in Amakofia and disentitle them from producing the Igwe of the community. (4) That the purported election of the 1st defendant did not comply with the provisions of the constitution under which he purports to have been elected.

The law is settled that evaluation of evidence and ascription of probative value thereto is the primary duty of the trial Court. Where the trial Court has properly evaluated the evidence, ascribed probative value thereto and made correct findings, the appellate Court has no power to embark on its own evaluation and to interfere with the finding of the trial Court. I have perused the entire evidence led and judgment of the Court below. The analysis, evaluation and ascription of probative value to the evidence led by the Court below are flawless. I will show this by taking the findings of the Court stated above serially.

On the locus standi of the respondents, the Court at page 675 of the record held that:
The pleadings and the evidence are that four persons including the 1st plaintiff had indicated interest in vying for the vacant stool that

was zoned to Amakofia quarter of the community to fill. Of the four, three eventually went for the election since 1st plaintiff and his village who had some issues with some sections of the newly introduced constitution of the town which was meant for the contest had to go to Court to challenge it. The process however moved on despite the protest by the plaintiffs village of Amadiligwe. The plaintiffs surely have established their right to institute the present action. The first issue is resolved in favour of the plantiff.
The Court referred to EMEZI V. OSUAGWU (2005)LPELR-1130 (SC)AT 17-18 (B-A) where the Supreme Court per Akintan JSC held that:
“The position of the law on the subject is that the right of a plaintiff to sue in a chieftaincy matter may arise in two ways: (i) he may establish in his statement of claim and lead evidence to show that the right that is being asserted is that of his family by reason of any hereditary interest. In such situation, the action should be by the family through their representatives and it must be clearly pleaded that it is the civil right of the family that is being claimed or pursued; and (ii)

the plaintiff may assert his own right to the chieftaincy stool if he could show from his pleadings and evidence, if evidence as been led, the nature of his interest and his entitlement to the stool. It is not enough for him to merely say that he is a member of the family. He has to say further that he had an interest in the chieftaincy title and plead further in his statement of claim how his interest arose.
In paragraphs 1, 3, 5, 6, 7, 11, 12 and 36 of the statement of claim,the respondents averred that:
1. The plaintiffs are members of Amadiligwe Village in Amokofia quarter of Umuna in Igbo-Etiti Local Government Area of Enugu State and bring this action for themselves and on behalf of the members of the said Amadiligwe Village of Amokofia and with their consent and authority.
3. Umuna town is made up of three quarters namely:- Oreti, Ufu and Amokofia in order of seniority.
5. That Amokofia quarters is made up of six villages in order of seniority namely:- Ameze, Okenyi Ezenushi, Ediko Ubagu and Dikwu.
6. The plaintiffs avers that from time immemorial position or shares including chieftaincy positions in Umuna

town are taken in order of seniority both at town quarters or village levels as in the custom and tradition of Umuna town.
7. Before the advent of the colonial masters leadership and government of Umuna town was conducted by the Traditional Council of elders known as OHA made up of the ONYISHI eldest man of each village.
11. The plaintiff avers that since after the first warrant Chief, traditional rulership of Umuna was based on rotational basis between the said three quarters of Umuna, beginning with the most senior village of the most senior quarter i.e Amewa village in Oreti quarter.
12. Based on the said principle of rotation in accordance with seniority above, it is now the turn of the Amadiligwe people, the eldest village in Amakofia quarter, to select and present the traditional ruler or Igwe of Umuna town, in accordance with the customs and traditional of Umuna town.
36. The plaintiffs aver that in line with the customs and tradition of Umuna and the principle of seniority which has been the practice in Umuna from time immemorial, the Amadiligwe village is the village to select or elect and present the

traditional ruler (Igwe) of Umuna.
PW1 and PW2 in paragraphs 1, 2, 4, 5, 6, 7, 8, 11, 12, 13 and 37 of their statement on oath deposed to the above facts and adopted same before the Court as their evidence. Their evidence that they brought this suit for themselves and on behalf of their village was not discredited under cross-examination. PW1 under cross examination also made it clear that he was also interested in the position of Igwe. Thus, the respondents did what is required of them by law by pleading and leading evidence to show that the right they are asserting is that of their village by reason of the native law and custom of their town and that they are members of Amadiligwe village of Amakorfa quarter whose turn it is to produce Igwe of the town. The Court below was very correct when it held that the respondents established their right to institute the suit.
On the finding that the people of Umuna Town from time immemorial attached some importance to seniority both at the level of quarters and the villages. The respondents gave evidence of the custom of Umuna Town in sharing positions according to seniority. They tendered exhibit D to

support their contention that the custom extends to village level. On exhibit D, the Court below at pages 677-678 of the record made the following observations:
There are three observations worth nothing in the above document. First, Exhibit D properly enumerated the three constituent clans in Umuna though taking into account that there may have been some changes in the pronunciation of those names as well as the fact that Exhibit D was written by foreigners. Up till date, the quarters of Oreti and Amokofia are still made up of the villages attributed to them in that report (Exhibit D). Second is the fact that Ufu was said to be one kindred or village as presently called. The defendants have argued that Ufu has three villages while the plaintiffs said that the three village structure of Ufu is of recent making. From the evidence given by the parties during cross-examination, this issue would easily be resolved. While the other villages within the other quarters have clear cut order of seniority, there is none for Ufu as the senior village is determined by the seniority of the eldest person from its villages.
This

goes to confirm the findings made by the colonial administrators that as at 1934 when the intelligence report was published, Ufu quarters had only one village. The third observation is that while the parties are agreed that the quarters in Umuna appearing in Exhibit D were listed in order of seniority and that the villages in Oreti were also listed in the order of seniority; the defendants contend that the listing in Exhibit D of the constituent village in Amokofia was not in order of seniority.
I wish to put it on record that from time immemorial, the people of Umuna attached some measure of importance to the issues of seniority both in quarters and villages. Exhibit D was made at a time none of the parties as presently constituted has any interest to serve. It was not made for purposes of traditional rulership but for the purposes of documenting the history of the people to guide the colonial masters in their local admistration.

The law is settled that where there are documentary as well as oral evidence before the Court, the document (s) should be used as the hanger to access the oral evidence. Exhibit D

made in 1934 clearly listed the quarters and the village as they were as at date. The defendants through DW1 confirmed the fact that quarters in Umuna are listed according to seniority in exhibit D. DW1 also confirmed that the four villages in Oreti which is listed according to seniority. He confirmed that as listed in Exhibit D, Amadiligwe is number 1 according to seniority and his own village Ezenuchi is listed as number 3. The Court below then evaluated the evidence as follows at pages 678 of the record:
It is in evidence that the custom of Umuna as it pertains to taking of benefits which includes positions of authority of which the traditional ruler is one is usually by rotation among the quarters of Oreti, Ufu and Amokofia. That is the custom of the people which has been observed over time. It was based on this principle of rotation and seniority of the quarters that Chief Ovuaku Nwodo from Amewa in Oreti quarters was selected as the traditional head of the town and was in office from 1970-1975. At the introduction of traditional rulership in 1976, Chief Ugwuegede Nwezike from Ufu was selected. Chief Ugwuegede was said to be the most senior in

Ufu at the time. He was in office till 1992. The above informed the decision of the caretaker committee for Umuna town to zone the position of the traditional ruler to Amokofia in 2005. The 1976 memorandum popularly called the 1976 constitution made provision for rotation of the traditional head of the community. That rotation was to be in this order: Ufu, Amokofia and Oreti: starting with Ufu followed by Amokofia and then Oleti. The question one would naturally ask is: does this accord with the seniority principle as agreed to by the parties. One has to bear in mind that Umuna in 1970 had a traditional head Chief Ovuaku Nwodo from Amewa, the most senior village in the most senior quarters of Oreti. Since Oreti had taken their turn in the rotation, they would be the last from then.

I cannot find any reason to interfere with the lucid evaluation of the evidence led by the Court below. If the first traditional ruler or head of the town was selected based on seniority from the most senior quarter and most senior village and the second ruler was also selected from the second quarter according to seniority and the parties agreed that it

is now the turn of Amakofia quarter to produce an Igwe based on the custom of rotation according to seniority of the quarters, it is difficult to believe that any village other than Amadiligwe listed as No. 1 in Exhibit D would produce the Igwe. The contention of the defendants and the appellant that seniority is the restricted to the level of quarters is not borne out by the evidence, facts and circumstances disclosed on record.

The Court below was on a very firm ground when it held that from time immemorial, the people of Umuna attached some measure of importance to the issue of seniority both in quarters and village. I see no reason to disturb the finding.

On the finding that the constitution was made purposely to deny the respondents their right and the issue of forgery, the Court considered the evidence as follow:
PW4 is the wife of the 1st plaintiff. She swore to a written deposition which she adopted and was cross-examined on the same. She denied signing the 2005 constitution of Umuna community. She was alleged to have been one of the ten women who drafted and signed the constitution. The plaintiffs alleged that there was no

constitution of 2005 but that there was a draft constitution of that year which a section of the community raised an objection to because some articles were inserted in it that violated the age long custom and tradition of the community.
At the time the constitution was signed PW4 was sick having broken her leg in an accident and a bone setter was attending to her in the comfort of her home. The question would be, is it possible that PW4 could have participated in the drafting and signing of the constitution under that circumstance? I do not think so. That may explain why the plaintiffs alleged that her signature on Exhibit B was a forgery.
Emachi Nwodo did not sign the constitution. He refused to do so. The constitution has to be taken to his house accompanied by policemen to get him to thumb print same. He was forced to sign it. Emachi Nwodo was until his death, one of the prominent members of the plaintiffs village of Amadiligwe. He was the 1st plaintiff when the village purportedly took out an action in suit no. N/38M/2005 to challenge some sections of the constitution of the town. The defendants alleged that he was not

interested in that suit and with the 2nd applicant therein never appeared in Court. That suit has been withdrawn. However. Emachi Nwodo was supposed to be part of the making (sic)and sign the 2005 constitution but was sick. The constitution had to be taken to him to sign. He in fact became the only person who signed the constitution since other signatures were according to evidence merely scanned and put in the constitution.

DW1 confirmed under cross-examination that all the signatures and thumb prints in the constitution, exhibit B except that of Chief Emachi Nwodo are photocopies and not original. He said Chief Emachi Nwodo was bed ridden for more than five years before his death. He confirmed that the Town Union people accompanied by the police took the constitution to Chief Nwodo’s house where he signed it. DW3 at pages 558-559 of the record said the constitution was made when there was no Town Union. He did not know whether the procedure laid down in the 1976 constitution for amendment of the constitution was followed. Most importantly, he confirmed that the constitution was made when he was the chairman of the Transition Committee and

that apart from Chief Nwodo’s thumbprint, all other signatures on exhibit B are scanned copies. From their own showing, the constitution exhibit B was not signed by any of the persons whose signature appeared therein. Their signatures were simply scanned on the document while Chief Nwodo signed under duress. There cannot be a more cogent and credible evidence of forgery.

The submission of the appellants counsel that the allegation of forgery was not proved beyond reasonable doubt is laughable. The defendants themselves provided the evidence of the forgery of the constitution. The law is settled that prove beyond reasonable doubt is not prove beyond all shadow of doubt. In the instant case, I dare say that there was prove beyond all shadow of doubts. The finding of the Court below that the constitution was made purposely to oust Amadiligwe village from their position as the most senior in Amakofia quarters by seniority and to disentitle them from producing the Igwe of the community is amply supported by the evidence on record.

The last finding is that the purported election did not comply with the purported constitution under which it was

conducted. The Court at pages 682-683 of the record of appeal evaluated the evidence of DW1, DW2 and DW3 on the conduct of the election, the venue, the time, the number of delegates and the participation of the 1st defendant in the purported election. The Court found that the witnesses could not agree on the time the election took place on that day. While DW2 said accreditation for the election started by 12 noon and the election was concluded around 4 or 5pm. DW1 and DW3 said the election started around 10 am and ended around 12 noon. There was also a disagreement on the number of delegates that constituted the Electoral College. The Court held that:
The purported election of the 1st defendant did not comply with the provisions of the constitution under which he purports to have been elected. He never procured nomination form for the election and did not pay the mandatory fee of twenty thousand naira to qualify him for that election. At least, there was no iota of evidence that he did so. That is why also the defendants front loaded those documents relating to Odo Philip and Odo Fidelis who were fronted as participants in the election to give it

some semblance of a competition when in fact it was a ruse and smoke screen. The documents of the 1st defendant were not front-loaded. They were not pleaded.
His presentation to Igbo-Etiti Local Government and subsequently to the Governor for recognition and the subsequent recognition, issuance of certificate of recognition and presentation of staff of office cannot cure that defect. Nothing can be established on falsehood and a house built without foundation is bound to crumble.

Since the defendants could not agree on the time the election took place, how many delegates were accredited, how many delegates voted, who signed the result sheet and even the venue of the election, the inevitable conclusion is that no election took place on 25/8/2006. If the witnesses could not agree on the time, the number of delegates and who signed the result sheet due to efluxion of time, at least they could have agreed on the venue at which such an important event took place if truly it happened but they could not. The conclusion of the Court below that the purported election of 1st defendant did not comply with the purported constitution and that nothing can

be established on falsehood is unassailable. The position of the Court as can be deciphered from a holistic reading of the judgment is that even if the election was conducted based on the purported 2005 constitution, the provisions of that constitution was not complied with and in any case, the defendants failed to show that any election took place. The Court below was right in granting the reliefs sought by the respondents.

This appeal totally lacks merit. It is hereby dismissed. The judgment of the High Court of Enugu State, Nsuka Judicial Division delivered in suit no. N/7/2009 by Honourable Justice A.O. Onovo on 17/7/2013 is hereby affirmed. Parties shall bear their own costs.

IGNATIUS IGWE AGUBE, J.C.A.: I had the opportunity Of reading the draft Judgment just delivered by my Learned Brother, MISITURA OMODERE BOLAJI-YUSUFF, JCA, and am in total agreement with the reasoning and conclusion that this appeal is unmeritorious and is hereby dismissed. I abide by the order as to costs.

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.: I have had the privilege of reading the draft of the lead judgment just delivered

herein by my learned brother MISITURA OMODERE BOLAJI- YUSUFF, JCA and I totally endorse the reasoning and conclusion therein.
For the more detailed reasoning in the lead judgment, I equally find no merit in this appeal and I dismiss it accordingly.

Appearances:

Uzoamaka Okeji (Chief Legal Officer, Ministry Of Justice, Enugu State) For Appellant(s)

I.C. Uhagha with him, Walter Aneke For Respondent(s)

Appearances

Uzoamaka Okeji (Chief Legal Officer, Ministry Of Justice, Enugu State)For Appellant

AND

I.C. Uhagha with him, Walter Aneke For Respondent