In The Supreme Court of Nigeria
On Friday, the 9th day of June 2006
S.C. 261/2001
Before Their Lordships
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Salihu Modibbo Alfa Belgore |
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Justice, Supreme Court |
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Umaru Atu Kalgo |
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Justice, Supreme Court |
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George Adesola Oguntade |
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Justice, Supreme Court |
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Mahmud Mohammed |
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Justice, Supreme Court |
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Justice, Supreme Court |
Between
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Moses Bunge |
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Appellants |
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Mr. Thompson Bunge |
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(For themselves and on behalf of Otari Village Community of Abua in the Abua/Odual Local Government Area of Rivers State) |
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And
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The Governor of Rivers State |
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Respondents |
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The Attorney General of Rivers State |
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Chief Major Job Umah |
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Chief Ogu Ukwu |
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Moses Richard Ukwu |
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Aselem Victor Ukwu |
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(For themselves and on behalf of Agana family of Omalem in Abua in the Abua Local Govt. Area of Rivers State) |
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Judgement of the Court
Delivered by
George Adesola Oguntade, J.S.C.
This was a chieftaincy dispute, which would appear to have first reared its head several years ago. It became the subject of litigation on 31-3-80 when the appellants for and on behalf of Otari village community of Abua, Rivers State commenced by writ of summons, a suit against the respondents as the Defendants. The 3rd to 6th Defendants were sued as the representatives of Agana family of Omalem, Abua, Rivers State. The Plaintiffs claimed for the following:
1. A declaration that sections 18 and 19 of Edict No.5 of 1978 are void, ultra vires and contrary to the Constitution of the Federal Republic of Nigeria 1979.
2. A declaration that in Abua Clan, whichwas historically and traditionally a monarchy, the highest chieftaincy title by Abua Customary Law and tradition is the Oda-Abuan.
3. A declaration that the findings of Tamuno Committee is not recognising Oda-Abuan as the highest Chieftaincy title by Abua Customary Law and tradition is null and void.
4. A declaration that the title of the Oda-Abua or the highest Chieftaincy title in Abua Clan is a monarchy and hereditary.
5. A declaration that the only family that can present the Oda-Abua or highest Chieftaincy title in Abua is the Agba family of Otari.
6. A declaration that Otari Village is the Traditional Headquarters of Abua clan.
7. An Injunction restraining the 3rd and 4th Defendants from parading themselves as and performing or containing (sic) to perform any of the functions of the Oda-Abuan and that of his Prime Minister.
The parties filed and exchanged pleadings after which the suit was tried by Okor J. The parties tendered several documents in order to show that the history of the chieftaincy in dispute favoured one and not the other. It is fair to say that the suit was fought largely on documentary evidence. In a judgment spanning 88 foolscap pages, the trial Judge dismissed the Plaintiffs claims in their entirety. The Plaintiffs were dissatisfied and brought an appeal against the judgment of the trial Court before the Court of Appeal, Port-Harcourt Division (i.e. the Court below). The Court below, on 30-4-2001, in a unanimous judgment, dismissed the Plaintiffs appeal. Still aggrieved, the Plaintiffs have come before this Court on a final appeal. In their appellants brief, the Plaintiffs identified the issues for determination in the appeal as these:
1. Having agreed to the crucial issue of fact that Obunge or Obunga of appellant was at a time the king or head Chief of Abua contrary to the finding of the trial Judge, coupled with the admission of the original 3rd respondent that he is a priest together with the content of exhibit E, was the Court of Appeal right to have dismissed appellants appeal?
2. Did the lower Court consider all the issues raised in the appeal to the Court?
3. How relevant were the contradictions of PW1 and PW2 to the central issues for determination having regard to the finding of the lower Court as well as the admissions made by the respondents during the trial?
4. Was there any basis to compare the case put forward by appellants as its like a tale told by an idiot full of sound and fury but signifying nothing when from the finding that Obunge of appellants was at a time king of Abua, appellants made a good case?
The 1st and 2nd respondents raised one issue for determination, which reads:
Whether the lower Court in affirming the judgment of the trial Court, correctly evaluated the evidence contained in the documentary exhibits received at the trial and whether it arrived at a just decision on the burning issues in contest between the parties.
The 3rd to 6th respondents formulated for determination one issue, which in substance, is similar to the issue raised by 1st and 2nd respondents above.
Before a consideration of the issues, it is helpful to have an understanding of the facts pleaded by the parties in their pleadings. In their further amended statement of claim, the Plaintiffs pleaded that they were from Otari village of the Abua clan, and that the said Abua clan had from time immemorial, been governed by a king or head chief known as and called Oda Abuan who had his seat at Otari village. It was pleaded that succession to the title had always been hereditary and restricted to the Plaintiffs Agba family. Obunge, from Plaintiffs Agba family who, reigned till 18/3/27 had on 2/12/1896, signed a treaty with the British Crown. Each village in the Abua clan is administered by a village head known as Uwema. The Uwema is assisted by a juju priest. TheUwemas and their juju priests carried out the orders of the king or Oda Abuan. The Oda-Abuan had a prime minister who hailed from Otari village. The office of the prime minister is also hereditary. The British crown paid annual subsidy to king Obunge till he died and even after his death, hischildren got such subsidy. By the Abua tradition, the Oda-Abuan had a juju priest who performed all sacrificial rites as directed by the Oda Abuan. Neither the prime minister nor the juju priest to the Oda Abuan could become the Oda Abuan. During the reign of king Obunge, Chief Amiofori was his prime minister while Ogida was his juju priest. Ukwu, 3rd defendants grandfather was the son of Ogida. He became a member of the native Court and like his father before him became a juju priest and married one of the daughters of king Obunge, the Oda Abuan. Under Abua tradition, no juju priest could become Uwerna or village head.
The 3rd defendant was the grandson of Ogida, a juju priest to Oda Abuan. About 1930, the 3rd defendant falsely represented to the then District Officer, Mr. Talbot that he was a priest king. King Obunge died in 1927 and was succeeded by his son King Oyaghiri Obunge who died on 11/5/31 having reigned for 3 years. On 19-3-77, Chief Kale Obunge became the Oda Abuan. The 4th defendant was never a chief in the Abuan clan. It is not in accord with Abua custom and tradition for someone who was not previously, a chief to be appointed the Uwema of Ogbo-Abua. The 3rd and 4th Defendants were the descendants of Ogida who had been a juju priest. The Tamuno committee, which was set up by the 1st defendant to grade chieftaincies erroneously accorded recognition to the title of Uwema Abua. Between 1931 and 1977, the 3rd defendant manipulated the colonial administration into accepting that the 3rd defendants family was the source of the kingship. The Plaintiffs therefore claimed as earlier set out in this judgment.
The facts pleaded by the 1st and 2nd Defendants in their Further Amended Statement of Defence may be paraphrased as stated hereunder:
1. The 3rd defendant is the clan head of theAbua clan recognised by the 1st and 2nd Defendants whilst the 4th defendant is a 3rd class Chief within the Abua clan.
2. The traditional title of the king of Abua clan is and was known as Uwema of Abua and the kingship stool of the clan was hereditary.
3. The 1st and 2nd Defendants recognised the3rd defendant because of his hereditary linage from Ukwu Ogida who ruled from 1880 - 1939 and who was from- Agana Royal Family.
4. The members of the 3rd defendants community in 1977 applied to the 1st defendant to accord official recognition to the 3rd defendant as the Uwema of Abua.
5. Only members of the Agana Royal Family could be the head of the Abua clan.
6. The dispute between the Obunge and Ukwu families as to which of them was entitled to be king is spelt out in a document dated 1/11/32 and numbered 146/26/
7. The British colonial Government in 1921 recognised the claim of the 3rd defendants family.
The 3rd and 4th Defendants in their 3rd Further Amended Statement of Defence pleaded the following facts:
1. The 3rd and 4th Defendants belonged to the royal Agana Family. The name and title of the head chief of Abua clan is Uwema Abua and not Oda Abuan.
2. Otari village has never been the seat of the king but the 3rd defendants Omalem village.
3. The king or paramount ruler of Abua clan has always been from the 3rd defendants Agana Royal Family and members of the said family had been Uwema Abua in succession.
4. Succession to the kingship or Uwema Abua by tradition is hereditary.
5. The Plaintiffs Obunge family was a part of the Agba family, which hailed from Agba Idole in Ikwerre District and being later settlers could not qualify to be Uwema Abuan.
6. As regards the 1896 treaty pleaded by the Plaintiffs, Obunge was not the rightful king of Abua.
7. King Obunge was paid £40 annually by British colonial administration but on 14/5/24, the same administration wrote to say that the 3rd defendants family member Ukwu was the king and that Obunge had been erroneously recognised.
8. Obunge was a juju priest under Chief Ukwu.
9. The said Chief Ukwu I succeeded his father Ogida and Obunge occupied a subordinate position.
10. Chief Ukwu took a wife from Chief Obunges family and this influenced Chief Ukwu in appointing Obunge as his juju priest.
11. The 3rd defendant Chief Richard Ukwu II became the king by inheritance.
12. The Defendants denied the Plaintiffs assertion that a juju priest could not become an Uwema of a village or town.
It was on this state of pleadings that the suit was heard. When the pleadings of the parties are compared and contrasted, it would appear that all the parties were agreed as to the following fact:
1. That succession to the chieftaincy in dispute was hereditary.
They however disagreed on the following:
(a) Whereas it was Plaintiffs contention that their family, the Agba Family of Otari was entitled to produce the chief perpetually, the Defendants contended that it was their Agana Royal Family that was entitled to produce perpetually the head chief.
(b) Whereas it was Plaintiffs case that the head Chief for Abua clan was called Oda Abuan the Defendants contended that the head chief was called Uwema Abuan.
(c) Whereas it was Plaintiffs case that the seat of the head chief of Abua clan was Otari village, the Defendants contended that the seat was Omalem village.
(d) Whereas the Plaintiffs contended that the Agana family of the Defendants only produced the juju priest, the Defendants asserted the opposite that it was Plaintiffs family that produced the juju priest.
It is to be said that the 3rd and 4th Defendants however agreed that a member of the Plaintiffs family king Obunge was king in 1896 when a treaty was signed with the British colonial administration, but contended that he was not the rightful king. They also agreed that King Obunge was paid £40 annually but that on 14/5/24, the British colonial administration wrote to say that King Obunge was erroneously recognised.
The four issues for determination formulated by the Plaintiffs could be conveniently taken together. It is important to say here that the pleadings of parties had clearly defined the issues in dispute between them. The main complaint of the Plaintiffs in the appeal before us is that the Court below having found that the Plaintiffs Obunge was once the king or head chief of Abua, and the 3rd defendant having admitted that he was a juju priest, the Court below could not have been right in dismissing the Plaintiffs appeal.
At pages 618-619 of the record of proceedings, the Court below said:
The Appellants father who testified in the lower Court had stated how sometime in the past King Obunge who was of Appellants family reported the then juju priest the ancestor of the 3rd 6th Respondents to the colonial Administrator for attempting to usurp his powers as the King. His complaint was that Ukwu presented his juju drum to the colonial Resident who not knowing or not versed in the custom of the people accepted the drum believing it to be the symbol of Kingship and wrongfully and erroneously accorded him Kingship title. Unfortunately, according to him, Exh. A, a document by which the Royal Niger Company recognised the Bunge man as King and Exh. B, which represented a settlement in respect of the land dispute between Abua people and the Kalabari were not made available to the Resident at that time to enable him understand and figure out who really was the king, when in actual fact Chief Ukwu was no more than a mere juju priest who by tradition was under a King. These 2 documents were tendered in the Court below to show that in either case the King who took part or was signatory to the documents was from Otari family bearing the Otari name of Bunge. One of the ways to get to the root of the problem is to ascertain which of the principal parties in this case produces the King and which one produces the juju priest. The Appellants insist that the 3rd Respondent Victor Ukwu or Uku by describing himself as Uwema-Abua, a non-existent title in Abua used this false title to apply for recognition as a first class Chief. To this the 3rd and 4th Respondents said that the Appellants are twisting history because it was Chief Obunge who was acclaimed a priest under the Kingship of Chief Ukwu. I believe that once it is resolved which family produces the King or has been producing the King, then, it may be easy to determine which family produces the juju priest.
Having said the above, the Court below at page 627 of the record of proceedings proceeded to acknowledge that Obunge from Plaintiffs family was at one time King of Otari and Head Chief of Abua. The Court below said:
There is no doubt that following from the plethora of documents tendered by the parties that Obunge or Obuge or Obuga was at one time a King of Otari and Head Chief of Abua but it cannot be doubted that the Uku family Agana had produced Head Chiefs who the Government in power had recognised not as a priest but as a Head Chief of Abua. The inference on the surface at least is that the Agba family does, not have monopoly of producing Kings or Head Chiefs and that the family of Agana can equally and infact did and have consistently for more than 80 years been producing Head Chiefs in Abua going by the documents laid before this Court.
In his evidence, the 3rd Respondent recited the names of his ancestors who had been Kings of Abua. It is worthy of note he did not mention for once Obuga. In one of the documents, Exh. K or T, Aniofori was said not to be the son of Obunge. It was also the same in Exh. U. Infact it was found out that Aniofori was not King at all. I will come to this later. Although Obunge was paid a stipend, I believe it was based on the fact that he was once regarded as a King.
The Court below finally said at pages 630 - 631:
I have carefully waded through and read most of the important Exhibits and I am at a loss as to the complaint of the Appellants that the Court below did not put the case on an imaginary scale. An imaginary scale as the Court normally states, in appraising the evidence led in a case is not just an abstract concept, but based on empirical facts and principles, which must have its foundation on the reality of a case, in consideration. The Appellants cited prolifically 7UP Bottling Co. Ltd. v. Abiola (1995) 4 NWLR (Pt. 389) 287; Kwaghshir v. The State (1995) 3 NWLR (Pt. 386) 651; Awaogbo v. Etim (1995) 1 NWLR (Pt. 372) 393; Asuguo v. Etim (1995) 7 NWLR (Pt. 405) p. 104 and Umesie v. Onuaguluchi (1995) 9 NWLR (Pt. 421) p. 551, to show lack of balance. The case of the parties is built largely on documentary evidence. The Court below meticulously examined the issues canvassed. The findings made accord in my view, to a proper consideration of the case.
Was the Court below right in its views reproduced above? I think not. I think the Court below fell into error by proceeding to accept the earlier findings of fact made by the trial Court, which said findings had been made without reference to the case made by the parties on their pleadings. In paragraphs 9, 10, 11, 12, 13 of their Further Amended Statement of Claim, the Plaintiffs pleaded:
9. With the advent of the British Government in 1890 King Obuge was on the throne at Otari village.
10. The late king Obuge who reigned and died up to the 18th of March 1927 signed a peace treaty with the Royal Niger Company, the representatives of Queen Victoria on the 2nd of December 1896 thereby allowing his Kingdom to come under the British Government protection over the length and breath of Abua also known as Abua-Kingdom. A copy of that treaty will be founded upon at the trial.
11. From time immemorial, the Government of the people of Abua Clan or Kingdom has been as follows: -
(a) Each village in Abua Clan or Kingdom was administered and is still administered by a village head or Chief known as the Uwema of that village and he had under him a Village juju priest whom he ordered to perform all sacrificial rites relating to the juju worshipped by the Abua people.
(b) Every village head or Chief otherwise called Uwema and his juju priest are both responsible to carry out the orders of the King of the Kingdom otherwise known as the Oda-Abuan and he the Oda-Abuan had unlimited powers over the life and the death of defaulting citizens in Abua Clan or Kingdom.
(c) Elders of families in every village assemble in the house of the village head or Chief otherwise known as the Uwema to adjudicate over matters arising from that village and in case of inter-village disputes, several neighbouring villages assemble in the house of one of the village heads or Chief to settle such matters.
(d) More serious matters and particularly matters that would require a death penalty are referred to the King or Oda-Abuan for final disposition.
(e) Every head of a village collects 49 Manilas now equivalent to 60k from the bride price of every married woman in every village in Abua Clan or Kingdom and such village head has a bounding duty to pay all such moneys to the King or Oda-Abuan.
(f) The Prime Minister of the King or Oda-Abuan hails from Otari village and the title of Prime Minister to the Oda-Abuan is a hereditary one arising from members of a particular family of Otari village.
12. The title of village head or Chief of every village in Abua Clan is also hereditary one arising from the children of a previous village head.
13. From the time the British Government entered into the treaty mentioned in paragraph 8 above, the British Government continued to pay annual subsidy to King Obuge of Abua up till the time of his death and even after his death, his sons applied for and were paid the annual subsidy payable to King Obuge.
The 1st and 2nd Defendants in paragraph 6 of their Further Amended Statement of Defence, in their reaction to the averments reproduced above from Plaintiffs Statement of claim pleaded thus:
The Defendants deny the averments as contained in paragraphs 11, 12, 13, 14, 15,16,17 and 18 of the Statement of Claim but will contend at the trial that:
(a) The 3rd Defendant was recognised as the traditional ruler of the Abua Clan as a result of his hereditary lineage from the line of Ukwu Ogida who ruled from 1880 - 1939 who himself was from the A.gana Royal family.
(i) The 3rd Defendant wasgiven a Certificate of Recognition by the 1st Defendant. The said Certificate of Recognition is hereby pleaded.
(ii) That before the said recognition, members of the 3rd Defendants community in 1977 applied to the 1st Defendant to accord official recognition to the 3rd Defendant as Uwema of Abua.
(iii) That thereafter, the 3rd Defendant has remained the Uwema of Abua undisturbed.
(b) The hereditary right to the traditional Clan Head of Abua circulates within the Agana Royal family. It does not extend to other family in the Abua Clan.
The 3rd and 4th Defendants in paragraphs 5, 6, 7, 10, 12, 13, 15 and 22 of their 3rd Further Amended Statement of Defence pleaded thus
5. Paragraph 6 of the Amended Statement of Claim is admitted only to the extent that the Traditional Kingship of Abua Clan is hereditary. The rest is denied. In further answer thereto, the 3rd and 4th Defendants state that the King or paramount Ruler -Uwema Abuan has always been produced by the Agana Royal Family.
6. Paragraphs 7, 8, 9 and 10 of the Amended Statement of Claim are denied. In answer thereto, the 3rd and 4th Defendants state as follows: -
i. Members of the 3rd Defendants Agana Royal Family have also reigned and been recognised as the Uwema Abua from time beyond human memory. People who have been crowned as Uwema Abua from the Agana Royal Family in their order-of succession are as follows: -
Abua, Agana, Obegh, Ilka, Akari, Afilotu, Ebe, Ajuaye, Ohia, Egigoro, Oghu, Ibagidi, Ogida, Ukwu Ogida I, Richard A. Ukwu II and Victor O. Ukwu III the present incumbent. Relevant record to the effect will be relied on at the hearing.
ii. The original ancestor of the Agba Family of Otari (which family includes the Plaintiffs Obuge) came from Agba Idole in Ikwerre District and settled with Igima family Otari. Being later settlers, the Obuge group cannot qualify to Uwema Abuan as opposed to the original settlers - Igima family.
iii. The 3rd and 4th Defendants strongly deny the purport of the alleged 1896 treaty. Obuge was not the rightful King of Abua, Amifiori therein mentioned was not the son of Obuge. The 3rd and 4th Defendants will rely on a memorandum dated 3/9/23 written by District Officer Ahoada to Resident Owerri province, Owerri, explaining the treaty as also page 2 of another memorandum dated 8/9/23 sent by Resident Owerri Province to the Secretary Southern Provinces Lagos to prove that fact.
7. Paragraph 11(a) of the Amended Statement of Claim is admitted to the effect that each village is headed by an Uwema who is assisted by priest in the worship of jujus.
10. Paragraphs 13 and 14 of the Amended Statement of Claim is denied. In answer to paragraph 13 thereof, the 3rd and 4th Defendants admit that Obuge was sometime before his death paid an annual allowance of forty pounds (£40) (now N80.00) by the British Colonial Administration. The 3rd and 4th Defendants however state further that the letter of the Acting Chief Secretary to the Government Mr. S. M. Gaier, dated 14/5/24 which he addressed to Secretary Southern Provinces, Lagos which letter introduced the payment of the annual allowances made it clear: -
(i) That after careful enquiry, the Governor satisfied himself that Uku is the proper Head Chief of the Abuas and ordered Okus recognition.
(ii) That the payment to Obuge was an act of grace and personal to him because the Government had at times made the mistake of recognising Obuge erroneously and incorrectly as the Head Chief of Abua.
(iii) That the allowance being an act of grace and personal to Obuge would cease, and infact did cease, at Obuges death. The 3rd and 4th Defendants will rely on the said letter dated 14/5/24 during the trial.
12. In further answer to paragraph 15 of the Amended Statement of Claim, which had already been denied, the 3rd and 4th Defendants state that no chieftaincy title in Abua is known by the name Oda-Abuan.
13. The 3rd and 4th Defendants deny paragraphs 16, 17 and 18 of the amended statement of claim. In further answer to paragraph 16, the 3rd and 4th Defendants state that Chief Qbuge was a juju priest under Chief Uku and was particularly assigned to conduct sacrifices to abate the floods. The Abua Clan report on the Abua Clan about Chief Obuges religious assignments under Chief Uku dated 1/11/32 will be relied upon (particularly at page 12 during the hearing of this suit. The 3rd and 4th Defendants shall also rely on a letter dated 11th October 1920 signed H. Webber, Ag. District Officer and addressed to the Resident Owerri Province in proof of the fact that Obuge was a juju priest under Uku.
15. The 3rd and 4th Defendants further aver that Chief Ukwu I, the previous Uwema of Abua, whose original ancestor was Abua who was the first man to settle at Abua and after whose name the entire Abua Clan is named, married from Chief Obuges family and that influenced the conferment by Chief Ukwu on Obuge the right of offering sacrifices to appease the god of floods.
22. The 3rd and 4th Defendants deny that juju priest cannot be an Uwema either of a village or of the whole town.
(Underlining mine)
It is seen in the paragraphs reproduced above from the parties pleading that whilst the Plaintiffs pleaded that King Obuge from Otari village of the Plaintiffs was King of Abua in 1896 when the British crown signed a treaty with the Abuas, the 1st and 2nd Defendants remained silent and did not specifically join issue with Plaintiffs on the point. The 3rd and 4th Defendants for their part, started by demonstrating a measure of ambivalence. In paragraph 6(i) reproduced above, they pleaded that members of their Agana Royal Family had also reigned and been recognised as Uwema Abua from time beyond human memory. The implication of this averment is that whilst the 3rd and 4th Defendants wereconceding that the Plaintiffs family had been the head chief of Abua that honour had sometimes also belonged to the Agana Royal family of the 3rd and 4th Defendants. In clearer terms however, the 3rd and 4th Defendants in paragraph 6(iv) of the pleading conceded that Obuge was King but not the rightful one. In paragraph 10, they made it clear that Obuge was king but that he was so recognised by the colonial government under a mistake. They also agreed that Obuge was paid annual allowance.
Let me say straightaway here that it was not the case of the Defendants that it was the colonial government that had the power and authority to recognise local chiefs and that any chiefs not recognised would cease to be a chief by such non-recognition. The implication of the admission of the 3rd and 4th Defendants that Obuge had been king of the Abua clan was to remove the burden or onus of proof of the fact that Obuge was king of the Abua clan from the Plaintiffs. The onus then shifted to the Defendants to show that Obuge who had been king of Abua clan was not the rightful king or that he was a (an) usurper. The Defendants needed to prove by evidence the assertion in paragraph 10(i) and 10(ii) of their pleadings that:<