(2017) LPELR-43654(CA)

Transcription

1 ETUK v. UDO & ORS CITATION: In the Court of Appeal In the Calabar Judicial Division Holden at Calabar ON WEDNESDAY, 12TH JULY, 2017 Suit No: CA/C/241/2012 CHIOMA EGONDU NWOSU-IHEME STEPHEN JONAH ADAH Before Their Lordships: JOSEPH OLUBUNMI KAYODE OYEWOLE EZEKIEL EKANEM UDO ETUK Between And Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s) 1. CHIEF MICHAEL DAN UDO 2. ABAK TRADITIONAL RULERS COUNCIL 3. COMMISSIONER FOR LOCAL GOVERNMENT AND CHIEFTAINCY AFFAIRS, AKWA IBOM STATE - Respondent(s) 4. THE EXECUTIVE GOVERNOR OF AKWA IBOM STATE 5. ATTORNEY GENERAL & COMMISSIONER FOR JUSTICE RATIO DECIDENDI

2 1. ACTION - PRE-ACTION NOTICE: Whether the non-service of a pre-action notice is an irregularity that can be waived "The possibility of waiver by a beneficiary of the rights conferred by the provision for pre-action notice has been contested by counsel for the two sides with each side sticking to different positions taken by the Supreme Court in MOBIL PRODUCING NIG. LTD VS LASEPA (supra) and NIGERCARE DEVELOPMENT CO. LTD VS ADAMAWA STATE WATER BOARD & ORS (supra). The position taken by the Supreme Court in the said earlier case of MOBIL PRODUCING NIG, LTD VS LASEPA (supra) was considered and validated in another case which came after the two cases in contention between the two counsel. I am in this wise referring to the case of FEED & FOOD FARMS (NIGERIA) LTD VS NNPC (2009) 38 NSCQR 840 where TOBI, JSC elucidated at as follows: I agree with the decision of this Court in Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency that the right to be served with a pre-action notice does not fall within the category of rights which cannot be waived. I do not think it is correct law to say that a party cannot waive his right in all matters affecting jurisdiction of the Court. I do not want to go that far or to that extreme. On the contrary, it is ideal to consider each case on its own merits and not as a blanket principle of law to be applied across the board to all cases affecting or relating to jurisdiction. Ayoola, JSC, in my humble view, come out brilliantly in Mobil when he made the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on ascertainment of facts, leads to error. In my view, for purposes of waiver, matters affecting the jurisdiction of the Court should be categorized into two areas or comportments. These are jurisdictional matters affecting the public in the litigation process and those affecting the personal, private or domestic rights of the Party. While the former cannot in law be waived, the latter can be waived in law. An example of the former is filing on action in a Court that has no jurisdiction to hear the matter. For example, filing an action in the High Court to determine a dispute between two States in the Federation of Nigeria. Certainly, a State High Court has no jurisdiction and as the issue involves a public right, none of the parties has the competence to waive it. I come to the second one- A good example is pre-action notice. In my view, service of 'pre-action notice is a personal, private or domestic right of the Party to be served. He is the beneficiary of the service and so can waive it at will or on his terms. The right is not shared by members of the public or the public at large but is one specific to the party. If he decides to respond to the writ without service on him, he has the right to do so and the Courts cannot hold that as the issue affects jurisdiction, he cannot waive his right to be served. In my view, where an issue of jurisdiction, like the issuance of pre-action notice is domestic to the parties, it can be waived at the pleasure and choice of the beneficiary. OGUNTADE, JSC in the same case on pages further expounded the legal position thus: In my respectful view, the intendment of the law is that a plaintiff who fails to file a Pre-action notice in accordance with Section 11(2) of the NNPC Act may not have a right of action. In the instant appeal, there is no doubt that the appellant did not serve a pre-action notice as it should. But no objection was raised at the trial Court as to the non-service of a pre-action notice. The necessity of a pre-action notice is to enable the 'statutory corporation' concerned to have "breathing time so as to enable him to determine whether he should make reparation to the Plaintiff." See Ngelagla v. Tribal Authority Nongewa Chiefdom (1953) 14 W. A. C.A. 325 at 327. It is to be expected therefore that a statutory corporation which is aggrieved by such non-service will bring the matter to attention of the trial Court. A civil case at the High Court is fought on the pleadings of parties. If a defendant does not raise a special defence based on facts which are known only to him, it is not the duty of the Court to assume the function of raising such facts for him. A defendant who ordinarily should enjoy the protection afforded under Section 11(2) of the NNPC Act who fails to raise the issue of non-service of pre-action notice has simply waived the defence and there is nothing preventing it from so doing. In Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt. 798) 1 at 36-37, this Court Per Ayoola JSC Put the matter succinctly in these words: "A pre-action notice which is for the benefit of the person or agency on whom or on which it should be served is not to be equated with processes that are on integral part of the proceedings-initiating process. As have been said in a number of authorities its purpose is to enable that person or agency to decide what to do in the matter, to negotiate or reach a compromise or have another hard look at the matter in relation to the issues and decide whether it is more expedient to submit to jurisdiction and have a pronouncement on the point in controversy. The law is clear that conditions imposed for the benefit only of a particular person or class of persons can be dispensed with. In Graham v. Ingeleby (1848)1 Exch.651 Alderson, B., said: It is evident, that a Party who has the benefit given him by statute may waive it if he thinks fit.' The view was expressed in a Passage in Craies on Statute Law, 7th Edition, at page 269 thus: 'If the object of a Statute is not one of general policy, or if the thing which is being done will benefit only a particular Person or class of persons, then the conditions prescribed by the Statute are not considered indispensable. This rule is expressed by the maxim of law, qui libet potestre nuntiare juri pro se introducto. As a general rule, the conditions imposed by Statutes which authorize legal proceedings are treated as being indispensable to giving the Court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered indispensable, and either party may waive them without affecting the jurisdiction of the Court. The words 'Qui libet potestre nunciare juri Pro se intro-ducto' mean that "An individual may renounce a law made for his special benefit." It was added as foot-note to the Passage quoted above that ''the words 'Pro se' were introduced into the maxim to show that no man can renounce a right of which his duty to the public, or the claims of society forbid the renunciation." The right to be served with a pre-action notice does not fall within the category of rights which cannot be waived. I come to the conclusion that FEPA could waive the right to be served with a pre-action notice. I also hold without hesitation that it was FEPA for whose benefit Section 29(2) of the Act is made and which could decide in relation to the Purpose of the Subsection whether it was expedient or not to submit to the jurisdiction of the Court in the particular instance that could have raised the issue of non-compliance with Section 29(2). It will hardly be a satisfactory state of affairs were a Person on whom preaction notice should be served to have waived the protection of the Act and submit to the jurisdiction of the Court, another party on whom service was not required is allowed to raise the issue of non-compliance. I hold that the first issue must be resolved in favour of the appellant." It is in my humble view clear that the respondent, not having complained in his pleadings of non-service of pre-action notice, must be deemed to have waived such service and could not be allowed to complain subsequently of absence of jurisdiction in the trial Court to hear the case arising from such non-service. It is thus settled law that the failure of the 4th Respondent who is the beneficiary of the pre-action notice herein, to join issues on the service of the pre-action notice in this instance has totally put the issue beyond contention."per OYEWOLE, J.C.A. (Pp. 9-16, Paras. D-D) - read in context 2. COURT - JURISDICTION: Conditions that must be satisfied before a Court is competent to exercise its jurisdiction in respect of any matter "The requisites of competence to adjudicate have been long judicially settled by the Apex Court. It has been held that a Court has jurisdiction over a matter when: (a) It is properly constituted with respect to the number and qualification of its members. (b) The subject matter of the action is within its jurisdiction (c) The action is initiated by due process of law and (d) Any condition precedent to the exercise of its jurisdiction has been fulfilled. See MADUKOLU VS NKEMDILIM (1962) 2 SC NLR 341."Per OYEWOLE, J.C.A. (Pp. 7-8, Paras. E-A) - read in context

3 JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.(Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Akwa Ibom State sitting in Abak Judicial Division delivered on the 15th May, 2012 by EKANEM J. (as he then was). Following the demise of the father of the Appellant as village head, Abak Ikot Village, Abak local Government of Akwa Ibom State, the 1st Respondent claimed he had been selected as the new village head by the 3 family heads in the village but was not recommended by the 2nd Respondent to the 3rd and 4th Respondent for approval and therefore took out a writ of summons at the trial Court for the following reliefs in paragraph 25 of the amended statement of claim filed on 5th May, 2008 and contained on pages of the record of appeal as follows: By reason of the facts stated above, the plaintiff hereby claims the following against the defendants jointly and severally: (a) A declaration that it is the plaintiff who is legitimately entitled to be accorded recognition as village head of Abak Ikot Village having been selected by the family heads (King makers) in accordance with the customs and usages prevalent in Abak Ikot Village. 1

4 (b)a declaration that the 1st defendant not having been selected by the family heads (King Makers) of Abak Ikot Village in accordance with age-long customs, traditions and usages cannot be recognized as the village head of Abak Ikot. (c) An order directing the 2nd defendant to forthwith recommend the plaintiff to the 3rd defendant for recognition by the 4th defendant. (d) An order for the 4th defendant to recognize the plaintiff as the village head of Abak Ikot by issuing Certificate of Recognition to him. (e) A declaration that the purported certificate of recognition issued by the 4th defendant and all his agents to the 1st defendant during the pendency of this suit is an abuse of the Court's process and against the doctrine of lis pendens and therefore null and void. (f) An order of this Honourable Court setting aside the said Certificate of Recognition issued to the 1st defendant by the 4th defendant and his agents during the pendency of this suit. (g) A declaration that its not the turn of Ekpene Ekpe family where the 1st defendant comes from that is entitled to produce the Village head of Abak Ikot 2

5 after the death of Chief Ekonem UdoEtuk (1st defendant's father). On being served, the defendants joined issues via pleadings and called oral and documentary evidence at trial. In the course of the trial, the defendants unsuccessfully challenged the jurisdiction of the Court and in its judgment the trial Court found for the plaintiff now the 1st respondent and granted his reliefs. Obviously dissatisfied, the Appellant invoked the appellate jurisdiction of this Court via a notice of appeal filed the same 15th May, 2012 which was later abandoned in favour of another notice of appeal filed on the 12th June, 2012 containing 3 grounds. At the hearing of the appeal, Mr. Udim the learned lead counsel for the Appellant adopted his brief filed on the 4th September, 2014 but deemed properly filed and served on the 13th June, 2017 and the Reply brief filed on the 1st June, 2015 but deemed properly filed and served on the same 13th June, 2017 as the arguments of the Appellants in this appeal. For the 1st Respondent, his counsel Obong Udoh adopted his amended brief filed on the 13th May, 2016 but deemed properly filed and served on the 3

6 13th June, 2017 as the arguments of the 1st Respondent in contesting this appeal. Mrs. Mike-Akpabio the learned counsel for the 2nd-5th Respondents withdrew the brief erroneously filed for the 2nd-5th Respondents supporting the appeal and it was accordingly struck out. The Appellant formulated 2 issues for determination from grounds 2 and 3 of the notice of appeal thereby abandoning his ground 1. The said issues are as follows: 1. Whether the lower Court had the jurisdiction to hear the suit. 2. Was the lower Court right in pronouncing against exhibit 2 and discountenancing same. The 1st Respondent on his part formulated 3 issues for determination as follows: 1. Whether it lies in the mouth of the Appellant who is not the Governor or any Government functionary to raise or Properly raise the issue of failure to serve the pre-action notice on the 4th Respondent (the Executive Governor of Akwa Ibom State). 2. Whether or not the lower Court was confined to only the authorities cited by counsel to the parties in the determination of this case. 3. Whether the 1st Respondent was duty bound to apply to set aside exhibit 2, which was already a nullity. 4

7 While the issues formulated by the Appellant is succinct and in line with the grounds of appeal the issues formulated by the 1st Respondent are most inelegant and unrelated to the extant grounds of appeal. I shall accordingly adopt the issues formulated by the Appellant and juxtapose them with the arguments of the 1st Respondent in relation thereto. The first issue is whether the lower Court had the jurisdiction to hear the suit, On this issue, Mr. Udim for the Appellant argued that the requisite pre action notice pursuant to Section 32 (1) of the Traditional Rulers Law, Cap 134, Vol. 6, Laws of Akwa Ibom State was not proved to have been served on the 4th Respondent thereby depriving the trial Court of jurisdiction to hear the suit. He referred to MARK & ANOR VS EKE (2004) ALL FWLR (PT 200) 1455 at 1483 and NIGERCARE DEVELOPMENT CO. LTD vs ADAMAWA STATE WATER BOARD & ORS (2008) 5 MJSC at 147. Obong Udoh responded that the pre-action notice in question was meant for the 4th Respondent who was the only competent party to complain of non-service but who filed pleadings without denying service of the 5

8 said pre-action notice as pleaded by the 1st Respondent. He referred to NNONYE VS ANYICHIE (2005) Vol. 124 LRCN 357, MOBIL PRODUCING NIG. LTD VS LASEPA (2003) FWLR (PT 137) The learned counsel referred to the finding of the trial Court on the issue and the rulings on the objection which were not appealed against and urged the Court to hold that pre-action notice was duly served on the 4th Respondent. In his reply brief, Mr. Udim argued that non service of preaction notice as a jurisdictional issue could be raised at any stage of the proceedings by any party, and that being an issue of law cannot be waived and need not have been pleaded. He referred to NIGERCARE DEVELOPMENT CO. LTD VS ADAMAWA STATE WATER BOARD & ORS (supra) at 221, 237 and 246, NWANKWO vs. YAR'ADUA (2010) 12 NWLR (PT 1209) 518 and ODOFIN vs CHIEF AGU (1992) 2 NWLR (PT 229) 350 at 375. Mr. Udim pointed out that the positions of the Supreme Court in NIGERCARE DEVELOPMENT CO. LTD VS ADAMAWA STATE WATER BOARD & ORS (supra) and MOBIL PRODUCING NIG. LTD VS LASEPA (supra) were in conflict and in that situation the later position in NIGERCARE DEVELOPMENT CO. LTD VS ADAMAWA 6

9 STATE WATER BOARD & ORS (supra) would be followed. He referred to ANSA VS R.T.P.C.N (2008) ALL FWLR (PT 405) 1681 at 1686, MKPEDEM VS UDO (2009) 9 NWLR (PT 673) 63 and NWANGWU VS UKACHUKWU (2000) 6 NWLR (PT 662) 674. Finally, he argued that a party dissatisfied with an interlocutory decision of a Court was at liberty to raise the issue alongside his substantive appeal. He referred to UMEANADU VS ATTORNEY GENERAL OF ANAMBRA STATE(2008) 9 NWLR (PT 1091) 175 and IWEKA VS SCOA NIG. LTD(2000) 1-3 SCNJ 71. Learned counsel filed a list of additional authorities wherein he referred to IBRAHIM VS LAWAL (2015) 17 NWLR (PT 1489) 449 at and ELUGBE VS OMOKHAFE (2004) 18 NWLR (PT 905) 319 at 332. The issue here is fundamental as it goes to the very root of the exercise of judicial powers in the circumstances of this case. The requisites of competence to adjudicate have been long judicially settled by the Apex Court. It has been held that a Court has jurisdiction over a matter when: (a) It is properly constituted with respect to the number and qualification of its members. (b) The subject matter of the action is within its jurisdiction 7

10 (c) The action is initiated by due process of law and (d) Any condition precedent to the exercise of its jurisdiction has been fulfilled. See MADUKOLU VS NKEMDILIM (1962) 2 SC NLR 341. Section 32 (1) (b) of the Traditional Rulers Law, Cap 134 Vol.6, Laws of Akwa Ibom State, 2000 Provides thus: No person may bring any action against the Governor or a Government functionary or any person or body charged with any function in connection with the selection, installation, recognition or withdrawal of recognition of a person as Paramount Ruler, Clan Head or Village head whether or not the cause of action arose from any act or commission or omission in the execution of the provisions of this law by the Governor or such other person unless- (b) One month at least has expired after written notice of intention to sue has been served upon the Governor. The main point to be resolved is whether in actual fact the 1st Respondent did serve a pre-action notice on the 4th Respondent as required by law. The starting point is the state of pleadings on the issue. In paragraph 23 of the Amended Statement of Claim, the 1st Respondent pleaded as follows: 8

11 The plaintiff therefore through his Counsel Udo afiaren & Associates wrote a letter of 17/11/2004 to the 2nd, 3rd, 4th and 5th defendants giving Notice of Intention to sue. The notice and petition Ref. No. UA/LP/ADM/Vol.6/667 of 17/11/2004 is hereby pleaded. The Appellant made no specific reference to this averment and did not contest it at all outside the general traverse. The same posture was adopted by the 4th Respondent specifically affected by the averment. In other words, the Appellant and his co-defendants at trial, 2nd to 5th Respondents failed to join issues with the 1st Respondent on the service of pre-action notice thereby conceding the issue. The possibility of waiver by a beneficiary of the rights conferred by the provision for pre-action notice has been contested by counsel for the two sides with each side sticking to different positions taken by the Supreme Court in MOBIL PRODUCING NIG. LTD VS LASEPA (supra) and NIGERCARE DEVELOPMENT CO. LTD VS ADAMAWA STATE WATER BOARD & ORS (supra). The position taken by the Supreme Court in the said earlier case of MOBIL PRODUCING NIG, LTD VS LASEPA (supra) was considered and validated in another case 9

12 which came after the two cases in contention between the two counsel. I am in this wise referring to the case of FEED & FOOD FARMS (NIGERIA) LTD VS NNPC (2009) 38 NSCQR 840 where TOBI, JSC elucidated at as follows: I agree with the decision of this Court in Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency that the right to be served with a pre-action notice does not fall within the category of rights which cannot be waived. I do not think it is correct law to say that a party cannot waive his right in all matters affecting jurisdiction of the Court. I do not want to go that far or to that extreme. On the contrary, it is ideal to consider each case on its own merits and not as a blanket principle of law to be applied across the board to all cases affecting or relating to jurisdiction. Ayoola, JSC, in my humble view, come out brilliantly in Mobil when he made the distinction between jurisdictional incompetence which is evident on the face of the proceedings and one which is dependent on ascertainment of facts, leads to error. In my view, for purposes of waiver, matters affecting the jurisdiction of the Court should be 10

13 categorized into two areas or comportments. These are jurisdictional matters affecting the public in the litigation process and those affecting the personal, private or domestic rights of the Party. While the former cannot in law be waived, the latter can be waived in law. An example of the former is filing on action in a Court that has no jurisdiction to hear the matter. For example, filing an action in the High Court to determine a dispute between two States in the Federation of Nigeria. Certainly, a State High Court has no jurisdiction and as the issue involves a public right, none of the parties has the competence to waive it. I come to the second one- A good example is pre-action notice. In my view, service of 'pre-action notice is a personal, private or domestic right of the Party to be served. He is the beneficiary of the service and so can waive it at will or on his terms. The right is not shared by members of the public or the public at large but is one specific to the party. If he decides to respond to the writ without service on him, he has the right to do so and the Courts cannot hold that as the issue affects 11

14 jurisdiction, he cannot waive his right to be served. In my view, where an issue of jurisdiction, like the issuance of pre-action notice is domestic to the parties, it can be waived at the pleasure and choice of the beneficiary. OGUNTADE, JSC in the same case on pages further expounded the legal position thus: In my respectful view, the intendment of the law is that a plaintiff who fails to file a Pre-action notice in accordance with Section 11(2) of the NNPC Act may not have a right of action. In the instant appeal, there is no doubt that the appellant did not serve a pre-action notice as it should. But no objection was raised at the trial Court as to the non-service of a pre-action notice. The necessity of a pre-action notice is to enable the 'statutory corporation' concerned to have "breathing time so as to enable him to determine whether he should make reparation to the Plaintiff." See Ngelagla v. Tribal Authority Nongewa Chiefdom (1953) 14 W. A. C.A. 325 at 327. It is to be expected therefore that a statutory corporation which is aggrieved by such non-service will bring the matter to attention of the trial Court. A civil 12

15 case at the High Court is fought on the pleadings of parties. If a defendant does not raise a special defence based on facts which are known only to him, it is not the duty of the Court to assume the function of raising such facts for him. A defendant who ordinarily should enjoy the protection afforded under Section 11(2) of the NNPC Act who fails to raise the issue of non-service of pre-action notice has simply waived the defence and there is nothing preventing it from so doing. In Mobil Producing Nigeria Unlimited v. Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt. 798) 1 at 36-37, this Court Per Ayoola JSC Put the matter succinctly in these words: "A pre-action notice which is for the benefit of the person or agency on whom or on which it should be served is not to be equated with processes that are on integral part of the proceedings-initiating process. As have been said in a number of authorities its purpose is to enable that person or agency to decide what to do in the matter, to negotiate or reach a compromise or have another hard look at the matter in relation to the issues and decide whether it is more expedient to submit to jurisdiction and have a pronouncement 13

16 on the point in controversy. The law is clear that conditions imposed for the benefit only of a particular person or class of persons can be dispensed with. In Graham v. Ingeleby (1848)1 Exch.651 Alderson, B., said: It is evident, that a Party who has the benefit given him by statute may waive it if he thinks fit.' The view was expressed in a Passage in Craies on Statute Law, 7th Edition, at page 269 thus: 'If the object of a Statute is not one of general policy, or if the thing which is being done will benefit only a particular Person or class of persons, then the conditions prescribed by the Statute are not considered indispensable. This rule is expressed by the maxim of law, qui libet potestre nuntiare juri pro se introducto. As a general rule, the conditions imposed by Statutes which authorize legal proceedings are treated as being indispensable to giving the Court jurisdiction. But if it appears that the statutory conditions were inserted by the legislature simply for the security or benefit of the parties to the action themselves, and that no public interests are involved, such conditions will not be considered indispensable, 14

17 and either party may waive them without affecting the jurisdiction of the Court. The words 'Qui libet potestre nunciare juri Pro se intro-ducto' mean that "An individual may renounce a law made for his special benefit." It was added as foot-note to the Passage quoted above that ''the words 'Pro se' were introduced into the maxim to show that no man can renounce a right of which his duty to the public, or the claims of society forbid the renunciation." The right to be served with a preaction notice does not fall within the category of rights which cannot be waived. I come to the conclusion that FEPA could waive the right to be served with a pre-action notice. I also hold without hesitation that it was FEPA for whose benefit Section 29(2) of the Act is made and which could decide in relation to the Purpose of the Subsection whether it was expedient or not to submit to the jurisdiction of the Court in the particular instance that could have raised the issue of non-compliance with Section 29(2). It will hardly be a satisfactory state of affairs were a Person on whom pre-action notice should be served to have waived the protection of the Act and submit to 15

18 the jurisdiction of the Court, another party on whom service was not required is allowed to raise the issue of non-compliance. I hold that the first issue must be resolved in favour of the appellant." It is in my humble view clear that the respondent, not having complained in his pleadings of non-service of pre-action notice, must be deemed to have waived such service and could not be allowed to complain subsequently of absence of jurisdiction in the trial Court to hear the case arising from such non-service. It is thus settled law that the failure of the 4th Respondent who is the beneficiary of the pre-action notice herein, to join issues on the service of the pre-action notice in this instance has totally put the issue beyond contention. In addition to all this however is the undisputed fact that in the course of the trial, the 1st Respondent as PW3 tendered the pre-action notice served on the 4th Respondent and it was admitted as exhibit 12 without objection from either the learned counsel for the Appellant or that of the 4th Respondent who were both in attendance. This is evident from page 282 of the record of appeal. 16

19 I therefore resolve this issue in favour of the 1st Respondent and against the Appellant. The remaining issue is was the lower Court right in pronouncing against exhibit 2 and discountenancing same? The terse argument of Mr. Udim on this issue was that it was erroneous of the learned trial Judge to have pronounced on the validity or otherwise of exhibit 2 when it was not raised as a relief or issue by the 1st Respondent. The response of Obong Udoh was that the provision of Section 10 (1) (3) of the Traditional Rulers Law (supra) was mandatory and that exhibit 2 having become a nullity did not require any specific prayer for it to be set aside. He referred to ORUGBO VS UNA (2002) 103 LRCN 2354, ONOCHIE VS ODOGWU (2006) 6 NWLR (PT 975) 66 at 89 and SALEH VS MONGUNO (2003) 1 NWLR (PT 801) 221. Exhibit 2 at trial was the Report of Inquiry by the Chieftaincy Disputes Committee, Akwa Ibom state Council of Chiefs, Ministry of Local Government and Chieftaincy Affairs, Wellington Bassey Way End, Uyo pleaded by all the parties and tendered through PW2, a functionary of the 3rd Respondent subpoenaed by the 1st Respondent and later called as DW3, Exhibit 2 17

20 was therefore central to the legal dispute and the learned trial Judge was duty bound to evaluate and appraise it in the exercise of a proper adjudicatory activity. In respect of the case before him. In the circumstances I therefore resolve this issue as well in favour of the 1st Respondent and against the Appellant. In conclusion, I find no merit in this appeal and I accordingly dismiss it. The judgment of the trial Court is hereby affirmed. Cost of N50, is awarded against the Appellant and in favour of the 1st Respondent. CHIOMA NWOSU-IHEME, J.C.A.: I read before now the judgment just delivered by my learned brother, J. O. K. OYEWOLE, JCA and I agree with the reasoning and conclusion therein. The appearl is bereft of merit and is accordingly dismissed. The judgment of the trial Court is hereby affirmed. I adopt the consequential orders as to costs in the lead judgment. STEPHEN JONAH ADAH, J.C.A.: I was availed a draft copy of the judgment just delivered by my learned brother J.O.K. Oyewole, JCA. I agree with his reasoning and conclusion that there is 18

21 no merit in this appeal. Consequent upon this l also find no merit in the appeal. I accordingly dismiss the appeal and I abide by all the consequential orders made in the lead judgment of my learned Brother. 19

22 Appearances: MR. E. UDIM Esq, with him, MR. T. JIMMY Esq For Appellant(s) OBONG C. UDOH Esq. - 1st Respondent, MRS. A. MIKE AKPABIO ESQ. (SSC, MOJ, AKWA IBOM STATE) 2ND-5TH Respondents. For Respondent(s)