OKONJO v. NWAUKONI (2018)

In The Court of Appeal of Nigeria

On Tuesday, the 26th day of June, 2018

CA/B/203/2016

Before Their Lordships

SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria


Between

H.R.M. OBI (PROF) CHUKWUKA ANINSHI OKONJO Appellant(s)

AND

CHIEF MIKE NWAUKONI Respondent(s)

…………………….A…………………….MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant was the 2nd defendant in Suit No. O/11/2015 instituted by the respondent in the High Court of Delta State, Ogwashi-Uku Judicial Division, holden at Ogwashi-Uku. In the said suit, the respondent claimed in paragraph 29 of his statement of claim the following relief:
a. A declaration that any registration/purported listing of the 1st defendants name in the register of Recognised Chiefs of Delta State Government and/or Official Gazette of Delta Government is null, void and of no effect, there being a pending appeal at the Supreme Court on who is the legally installed Iyase of Ogwashi-Uku Kingdom which has not been determined in favour of any party.
b. A declaration that the entering of the 1st defendant name as the Iyase of Ogwashi-Uku Kingdom in the register of Recognised Chiefs in Delta State and/or Official Gazette of Delta State by the 3rd Defendant is preemptive, null, void and of no effect the appeal filed by the 1st defendant challenging the validation of the installation of the claimant as the substantive Iyase of Ogwashi-Uku 
Kingdom not having been determined.
c. An Order of this Honourble Court restraining the 1st and 2nd defendants whether by themselves, their agents, privies and servants from holding out or parading the 1st defendant as the Iyase of Ogwashi-Uku Kingdom until determination of the appeal pending before the Supreme Court of the Federal Republic of Nigeria on who is validly installed Iyase of Ogwashi-Uku.
d. An Order of the Honourable Court restraining the 3rd defendant, his privies or servants from recognising and/or registering or listing the name of the 1st defendant or anyone else in the Register of Recognised Chiefs in Delta State and/or Official Gazette of the Delta State Government as the Iyase of Ogwashi-Uku until determination of the appeal filed by the 1st defendant at the Supreme Court challenging the validity of the claimant as the substantive Iyase of Ogwashi-Uku Kingdom.
e. An Order of this Honourable court directing the 3rd defendant, his privies, agents or servants to immediately delist/expunge the 1st defendants name from the register of Recognised Chiefs in Delta State/Official Gazette of Delta State Government 
where such registration exists, there being a pending appeal before the Supreme Court on who is validly installed Iyase of Ogwashi-Uku between the claimant and the 1st defendant.
f. An Order of mandatory injunction directing the 3rd defendant, his cronies, subordinates, and/or anyone else having authority to register Chieftaincy in Delta State to forthwith deregister and/or expunge the 1st defendants name from the register of Recognised Chiefs in Delta State and/or Official Gazette of Delta State Government as any registration in disregard of the pending appeal before the Supreme Court will be null, void and of no effect.

In paragraphs 19, 20, 21, 25, 26 and 27 of his statement of claim, as claimant in the trial court, the respondent pleaded as follows:
19. The claimant avers that being dissatisfied with the judgment of the lower Court, the claimant as appellant in that suit appealed the said judgment of Hon. A.O. Akpovi in Appeal No. B/CA/94/2009 sitting at Benin City, Edo State.
20. The claimant avers that upon hearing of the Appeal, the judgment of the lower Court was upturned and judgment was entered in favour of the 
claimant, validating his installation as the substantive Iyase of Ogwashi-Uku Kingdom on the 12th of July, 2010. The claimant will found and rely at the trial of this suit on the said judgment of the Court of Appeal.
21. The claimant avers that the 1st defendant herein has since appealed the judgment of the Court of Appeal to the Supreme Court, in Appeal No. SC/55/211, (sic) which Appeal is still pending. The claimant

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will at the trial of the suit, rely on the notice of appeal and motion for stay of execution filed by the 1st defendants and other respondents at the Court of Appeal and same are hereby pleaded.
22. …….
23. ….
24. …..
25. The 3rd defendant cannot register, enter and/or list the 1st defendants name in the register of Chieftaincy titles in Delta State as Iyase of Ogwashi-Uku until the Supreme Court have made pronouncement on the appeal before it.
26. The claimant avers that the 3rd defendant cannot register, enter and/or list the 1st defendants name in the register of Chieftaincy titles in Delta State as Iyase of Ogwashi-Uku until the Supreme Court have made pronouncement on the appeal before it.
27. Any registration or enlistment of the 1st defendant in the Official Gazette of the Delta State Government purporting to recognise the 1st defendant as the Iyase of Ogwashi-Uku before the determination of the appeal pending before the Supreme Court of Nigeria will gravely undermine the decision of the apex Court.

The appellant, as the 2nd defendant in the trial Court, filed a statement of defence and a counterclaim on 30/06/2015 in which he counterclaimed for:
(a) a declaration that the claimants claim to be the Iyase of Ogwashi-Uku is illegal, null and void as the title was conferred on him by a person who was not an Obi/Traditional Ruler of Ogwashi-Uku under Ogwashi-Uku native law and custom and/or in flagrant breach of the Rule of Law.
(b) an order of perpetual injunction restraining the claimant from parading or continuing to parade himself as the Iyase of Ogwashi-Uku community, addressing himself as such, 
allowing or permitting himself to be addressed as such or taking any action whatsoever which only the Iyase of Ogwashi-Uku or chiefs of Ogwashi-Uku community are entitled to take including dressing as a chief of Ogwashi-Uku or using an umbrella to cover himself during the annual Inne festival of Ogwashi-Uku and the associated procession to and from the palace of the traditional ruler of Ogwashi-Uku and/or other parts of Ogwashi-Uku during the festival or other traditional festivals in Ogwashi-Uku.
(c) any other order or such further orders as the honourable Court may deem fit to make in the interest of justice.

The respondent filed a notice of preliminary objection on 12/08/2015 whereby he sought:
An Order striking out and/or dismissing the 2nd defendant/respondents counter claim dated 15th day of June, 2015 as constituted in that this Honourable Court lacks jurisdiction to entertain same.
By a motion on notice filed on 12/08/2015, the respondent prayed for an order of the lower Court setting down for argument the points of law raised in paragraphs 19, 20, 21, 25, 26 and 27 of his statement of claim and the application was granted vide a ruling delivered on 21/01/2016. The respondents points of law and his preliminary objection to the appellants counterclaim were set down and argued together. After hearing the respondents and the appellants arguments on the respondents said points of law and preliminary objection, the trial Court delivered its ruling on 02/02/2016.
In its ruling, the trial Court stated on pages 365  366 of the record of appeal that:
This Court will adopt the following issues in resolving the two applications:
1. Whether the claimant/applicant has made out a case based on the points of law raised in paragraphs

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19, 20, 21, 25, 26 and 27 of the statement of claim to entitle it(sic) to the reliefs sought in his statement of claim.
2. Whether this Honourable Court lacks jurisdiction to enter and determine the reliefs sought by the 2nd defendant in his counter claim.
The trial Court resolved the above two issues in favour of the respondent and concluded as follows:
This action succeeds. It is the order of this Court as follows:
1. Any 
registration/purported listing of the 1st Defendants name in the Register of Recognized Chiefs of Delta State Government and/or Official Gazette of Delta Government is null, void and of no effect, there being a pending appeal at the Supreme Court on who is the legally installed Iyase of Ogwashi-Uku Kingdom which has not been determined in favour of any party.
2. The entering of the 1st Defendants name as the Iyase of Ogwashi-Uku Kingdom in the Register of Recognized Chiefs in Delta State and/or Official Gazette of Delta State by the 3rd Defendant is preemptive, null, void and of no effect the appeal filed by the 1st Defendant challenging the validation of the installation of the Claimant as the substantive Iyase of Ogwashi-Uku Kingdom not having been determined.
3. The 1st and 2nd Defendants, whether by themselves, their agents, privies and servants are restrained from holding out or parading the 1st Defendant as the Iyase of Ogwashi-Uku Kingdom until determination of the appeal pending before the Supreme Court of the Federal Republic of Nigeria on who is validly installed Iyase of Ogwashi-Uku.

4. The 3rd Defendant, his privies or servant are restrained from recognizing and/or registering or listing the name of the 1st Defendant or anyone else in the Register of Recognized Chiefs of Delta State Government and/or Official Gazette of Delta Government as the Iyase of Ogwashi-Uku until determination of the appeal filed by 1st Defendant at the Supreme Court challenging the validity of the claimant as the substantive Iyase of Ogwashi-Uku Kingdom.
5. The 3rd Defendant, his privies, agents or servants are directed by this Court to immediately delist/expunge the 1st Defendants name from the Register of Recognized Chiefs of Delta State Government and/or Official Gazette of Delta Government where such registration exists, there being a pending appeal before the Supreme Court on who is validly installed Iyase of Ogwashi-Uku between the Claimant ad the 1st Defendant.
6. The 3rd Defendant, his cronies, subordinates, and/or anyone else having authority to register Chieftaincy in Delta State are to forthwith deregister and/or expunge the 1st Defendants name from the register of Recognized Chiefs of Delta State Government and/or Official Gazette of Delta 
Government as any registration in disregard of the pending appeal before the Supreme Court will be null, void and of no effect.
7. The Counter-claim fails because this Court lacks jurisdiction to determine the reliefs sought by the 2nd Defendant in his counter-claim. 

The appeal is against the said ruling.
The appellants brief was filed on 10/02/2017 and in it learned counsel formulated the following six issues for determination:
1. Whether the lower Court was right to have declined jurisdiction to entertain and determine the appellants counter-claim on the ground that the reliefs sought therein are on all fours with the reliefs sought and obtained in Suit No. O/9/2005. (Ground 1).

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2. Whether the lower Court was right to have granted the reliefs sought by the respondent without taking or hearing evidence from the parties. (Ground 2).
3. Whether the trial Courts grant of the reliefs sought by the respondent in the statement of claim without considering the averments in the appellants statement of defence sufficiently or at all or giving the appellant the opportunity to presenting his  defence is not a breach of the appellants right to fair hearing. (Ground 3).
4. Whether the lower Court was right to grant the reliefs sought by the respondent in his statement of claim without a prayer to that effect and without first giving the appellant the opportunity to address it on the propriety or otherwise of granting same. (Ground 4).
5. Whether the lower Court was right to have raised, suo motu, the issue of whether the respondent made out a case based on the points of law raised in paragraphs 19  21 and 25  27 of the statement of claim to entitle him to the reliefs sought in the statement of claim and resolved same in favour of the respondent without first calling on the parties to address it on the issue. (Ground 5).
6. Whether it is the Supreme Court where Appeal NO. SC/55/2011 is pending that has jurisdiction to entertain the complaint made by the respondent in this suit and make any order/s it deems necessary to maintain the integrity of the appeal before it and ensure that the parties thereto do not take any action that would render whatever decision it would arrive at nugatory. (Ground 6).

The respondents brief was filed on 10/04/2017 but it was deemed as properly filed on 07/06/2017. Learned counsel distilled only two issues for determination:
i. Whether having regard to the peculiar circumstances of this case, the learned trial judge was right in setting down the issues of law raised in paragraphs 19, 20, 21, 25, 26 and 27 of the respondents statement of claim for hearing and finally determining the suit by granting the reliefs sought by the respondent in his statement of claim without calling for oral evidence? (Distilled from grounds 2, 3, 5, & 6).
ii. Whether the learned trial judge was wrong to have declined jurisdiction to entertain the counter-claim of the appellant as presently constituted and conceived and by so doing denied the appellant the right to fair hearing? (Distilled from grounds 1 & 4).

The issues framed by the learned counsel for the respondent have properly encapsulated all the six issues identified by the appellant and rightly condensed them into two. I adopt the issues as formulated by the learned counsel for the respondent to determine this appeal.
ISSUE NO. 1
Whether having regard to the peculiar circumstances of this case, the learned trial judge was right in setting down the issues of law raised in paragraphs 19, 20, 21, 25, 26 and 27 of the respondents statement of claim for hearing and finally determining the suit by granting the reliefs sought by the respondent in his statement of claim without calling for oral evidence?

Learned counsel for the appellant stated that the first two reliefs sought by the respondent in his suit are declaratory reliefs which can only be granted after a Court has satisfied itself from the evidence led and not on the basis of admissions or default of defence or pleadings. In support of this submission, learned counsel referred to the cases of Jikantoro v. Dantoro (2004) All FWLR (Pt. 216) 390 at 409  410 and Nwokediaso v. Onuoha (2001) FWLR (Pt. 59) 1326.

O.W. Chibuogwu, Esq., learned counsel for the appellant relied on Sections 16 and 18(1) of the Evidence

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Act, 2011 and the case of Oyediran v. Alebiosu (1992) 7 SCNJ (Pt. 1) 187 at 194 and submitted that:
The decision is also wrong because the claimant did not lead any evidence to prove that he was conferred with the Iyase title according to Ogwashi-Uku native law and custom as he claimed, the appellant having denied same. It is trite law that every alleged custom, except where judicially noticeable, has to be proved by evidence.
In his response, Prof. Oludayo G. Amokaye, learned counsel for the respondent contended that Order 22 Rule 2 of the Delta State High Court (Civil Procedure) Rules, 2014 gives the Court the power, upon an application of a party, to set down for hearing and to determine at anytime a question of law raised in his pleadings. He argued that the lower Court was right to have decided the action in limine there being no need to call any evidence and since to do otherwise will amount to wasting the precious time of the Court. To back up this argument, learned counsel for the respondent referred the Court to the cases of Mills v. Renner (1990) 6 WACA 144 at 145 and Elabanjo v. Dawodu (2006) 15 NWLR (Pt. 1001) 76 at 138  139.

Without wasting time, the cases relied on by the learned counsel for the respondent in submitting that the trial Court was right to have decided the respondents action or claim in limine without calling any evidence are grossly inapplicable to this case. For example, in the case ofMr. Popoola Elabanjo & Anor. v. Chief (Mrs.) Ganiat Dawodu (2006) 15 NWLR (Pt. 1001) 76 the application was by the defendant asking the trial Court to dismiss the suit on the ground that it lacked jurisdiction to entertain the action which was statute barred.
In this case, the purported points of law were raised by the respondent and the application was also made by the respondent, who was in fact the plaintiff or claimant in the case.
The law is well settled, by a litany of decisions of this Court and the Supreme Court, that the Court cannot grant a declaratory relief on the admission of a defendant. See G.E. Intl Operations (Nig.) Ltd. v. Q-Oil & Gas Services Ltd. (2016) 10 NWLR (Pt. 1520) 304. Bluntly put, a party seeking a declaratory relief has a burden to establish his case both by his pleadings and by evidence. See Hon. James Abiodun Faleke v. Independent National Electoral Commission & Anor. (2016) 18 NWLR (Pt. 1543) 61 at 149 per Kekere-Ekun, JSC where the Supreme Court stated that:
The onus was on the appellant seeking declaratory reliefs to establish his case by his pleadings and by evidence led in support thereof on the preponderance of evidence.
In other words, a plaintiff or claimant who seeks a declaratory relief has a duty to establish his claim by evidence. See Okereke v. Umahi (2016) 11 NWLR (Pt. 1524) 438.

The trial Court, without more, was wrong to have granted the respondents claims, which were declaratory and injunctive reliefs, without hearing evidence from the claimant/respondent.
I resolve this issue in favour of the appellant and against the respondent.
ISSUE NO. 2
Whether the learned trial judge was wrong to have declined jurisdiction to entertain the counter-claim of the appellant as presently constituted and conceived and by so doing denied the appellant the right to fair hearing? 

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I do not wish to dissipate much judicial energy and time on this issue, because the respondents preliminary objection to the appellants counterclaim was anchored on the following two grounds:
1. The relief sought by the 2nd defendant/respondent in his counter claim as presently constituted (i.e. who is the rightful person as between the claimant and the 1st defendant to take over the traditional title of Iyase of Ogwashi-Uku after the demise of the previous Iyase sometime in May, 2004) had already been resolved in favour of the claimant by the Court of Appeal in Appeal No. CA/B/94/2009 and unless upturned by the Apex Court, it remains the law and cannot be re-litigated.
2. The 2nd defendants counter claim as presently constituted amounts to a gross abuse of the process of this Honourable Court.

In its ruling, the trial Court reproduced the reliefs in Suit No. O/9/2005, the decision of the trial Court and decision of the Court of Appeal in respect of Appeal No. CA/B/94/2009 which emanated from the judgement of the trial Court. All the parties agree that an appeal in respect of whether or not the respondent is the Iyase of Ogwashi-Uku is now pending before the Supreme Court.
The trial Court, in its ruling of 02/02/2016, stated inter alia, that:
…..careful perusal of the reliefs sought and obtained in this Court which has been set aside by the Court of Appeal is on all fours with the counter claim, no matter the beauty of the construction.
Since the issue of whether the claimant/respondent is the Iyase of Ogwashi-Uku is still pending before the Supreme Court, it is better for the parties to tarry and await the decision of the Supreme Court. If the appellant here was interested in Suit No. O/9/2005 and Appeal No. CA/B/94/2009 and was not made a party to those cases, there is a remedy open to him. That remedy is to apply to seek leave to appeal or join the existing appeal in the Supreme Court as an interested party, since he is now aware of the pendency of the case on the issue of whether the claimant/respondent is the Iyase of Ogwashi-Uku.
For the foregoing reasons, I agree that the appellants counterclaim was rightly struck out by the trial Court.
I resolve Issue 2 in favour of the respondent and against the appellant.
CONCLUSION
Having resolved Issue 1 in favour of the appellant and Issue 2 against him, the appeal succeeds only in part and it is allowed in part.
The decision of the trial Court upholding the claimants/respondents points of law and granting the reliefs sought by him in Suit No. O/11/2015 is hereby set aside.
The decision of the trial Court striking out the appellants/2nd defendants counterclaim in Suit No. O/11/2015 is hereby upheld.
Suit No. O/11/2015 between CHIEF MIKE CHUKWUKA NWAUKONI v. COLLINS UCHE AFUWAH & 3 ORS is hereby remitted to the High Court of Delta State, which upon a directive of the Honourable Chief Judge of Delta State shall be heard and determined on its merits, without the 2nd defendant s/appellants counterclaim, by any Judge other than Okpu, J.
There is no order for costs.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I have had the opportunity of reading before now the lead judgment just delivered by my learned brother M.A.A. ADUMEIN, JCA.
The reasoning and conclusion contained therein are quite apt, succinct and in tandem with the relevant

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laws and authorities on the issue in contention. I have nothing extra to add and I agree that the Appeal succeeds in part. I also allow same in part.
I abide by the consequential orders made in the lead judgment inclusive of that of costs.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA. The facts are well set out and the issues canvassed in the appeal ably considered. I therefore agree with the reasoning and conclusion that the appeal succeeds only in part and it is allowed in part.
I abide by the consequential orders made therein, including that for cost.

Appearances

G.I. Ugbechie, Esq. For Appellant

AND

Prof. O.G. Amokaye with him, C.A. Uzomah, Esq. and V.O. Nobei, Esq. For Respondent

 

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