Obol Dennis Onen David V. Chief Donatus Ibor Ofem & Ors (2016)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment)

The Cross-appellant had commenced an action against the Cross-respondents under the Fundamental Rights (Enforcement Procedure) Rules, 2009 at the High Court of Cross River State, Ugep Judicial Division in respect of the withdrawal of his certificate of recognition by the Governor of Cross River State as the village Head of Okweze and Clan Head of Epenti in the Yakurr Local Government of Cross River State. The reliefs sought by the Cross-appellant before the trial Court can be gleaned from pages 2-4 of the record of appeal as follows:

1. A declaration that the withdrawal of the official recognition of the applicant as the Village Head of Okweze, Clan Head of Epenti/Ekori, Yakurr Local Government Area of Cross River State of Nigeria on the 19th July, 2006 by the then Governor of Cross River State of Nigeria, Mr Donald Duke, purporting to exercise the powers conferred on him by Section 30 (1) of the Traditional Rulers Law, Cap T4, Laws of Cross River State of Nigeria, 2004, for alleged breach by the Applicant of the provisions of the Traditional Rulers

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Law, supra, on grounds or for reasons as enumerated in the Cross River State of Nigeria Gazette dated 14th September, 2006, (Cross River State Notice No. 4), which the Applicant was never afforded the opportunity of being heard before the purported withdrawal of the said official recognition as contemplated by Section 36 (1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999, and Article 7 (1) of the African Charter on Human and Peoples Right (Ratification & Enforcement) Act, Laws of the Federation of Nigeria, 2004 is wrongful, wanton, illegal, unconstitutional, null and void and of no effect.

2. An order setting aside the purported withdrawal of the official recognition of the Applicant as contained in the said Cross River State of Nigeria Gazette Dated 14th September, 2006, (Cross River State Notice No. 42) of the Applicant as the Village Head of Okweze, Clan Head Epenti/Ekori, Yakurr Local Government Area of Cross River State of Nigeria by the then Governor of Cross River State, Mr. Donald Duke, in gross violation of the right to fair hearing of the Applicant as guaranteed by Section 36 of the Constitution of the Federal Republic

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of Nigeria, 1999, and Article 7 (1) of the African Charter on Human and Peoples Right (Ratification & Enforcement) supra.

3. A declaration that the Applicant is still and remains the Village Head of Okweze, Clan Head of Epenti/Ekori, Yakurr Local Government Area of Cross River State from 19th July, 2006, when his official recognition was purportedly withdrawn till date and thereafter.
4. An order of perpetual injunction restraining the Respondents by themselves including their agents, servants, officials, cohorts, underlings or privies from withdrawing the Official Recognition of the Applicant as Village Head of Okweze, Clan Head of Epenti/Ekori, Yakurr Local Government Area of Cross River State of Nigeria without regard to due process as laid down by Section 36 (1) and (2) of the Constitution of the Federal Republic of Nigeria, supra, and Article 7 (1) of the African Charter on Human and Peoples Right (Ratification & Enforcement) Act, supra.
5. An order restraining the 1st Respondent by himself including his agents, servants, privies and or cohorts in whatever guise from parading or masquerading or holding out himself as the Village

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Head of Okweze, Clan Head of Epenti/Ekori, Yakurr Local Government Area of Cross River State of Nigeria on the 19th July, 2006 by the then Governor of Cross River State of Nigeria.

6. General/Exemplary Damages of N50 million for the gross infringement of the fundamental right to fair hearing of the applicant as secured and guaranteed by Section 36 (1) & (2) of the Constitution of the Federal Republic of Nigeria, supra and Article 7 (1) of the African Charter on Human and Peoples Right (Ratification & Enforcement) Act, supra.

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In the course of the said action, the 1st Cross-respondent filed a preliminary objection to the competence of the said suit on grounds that being a chieftaincy dispute it could not be sustained under the Fundamental Rights (Enforcement Procedure) Rules. However the said objection was overruled by the learned trial Judge in a considered ruling delivered on the 20th July, 2010, upon which the 1st Cross-respondent filed a Notice of Appeal on the 22nd July, 2010. In the belief that his said interlocutory appeal was on grounds of mixed law and facts, he sought and was granted leave to file the said interlocutory appeal

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despite the opposition of the Cross-appellant who contended that the said application for leave was superfluous and therefore incompetent. To further accentuate his disagreement with the considered decision of the trial Court granting leave to appeal to the 1st Cross-respondent delivered on the 25th November, 2010, the Cross-appellant subsequently filed this cross-appeal on the 22nd February, 2011 against the said decision of the trial Court.

Although the learned counsel for the cross-appellant was absent at the hearing of the Cross-appeal, his amended brief filed on the 22nd May, 2015 was deemed argued by the Court pursuant to Order 18, Rule 9 (4) of the Court of Appeal Rules, 2011.

Therein, a sole issue for determination was formulated as follows: