Chief Dennis E.a. Etaluku V. Attorney-general, Delta State & Ors. (1997)

LawGlobal-Hub Lead Judgment Report

AKINTAN, J.C.A.

This is an appeal from two rulings delivered by Ogbodu J., sitting at Oleh High Court in Delta State on 22/5/95. The claim before the court was in respect of chieftaincy tussle between the appellant who was the plaintiff in the lower court and the 4th respondent.

Pleadings had been completed at the lower court. According to paragraph 32 of the Amended Statement of Claim, the claim is as follows:-

“1. A DECLARATION that in accordance with the age long tradition, native law, custom and usages of Unuame Community of Igbide the selection and appointment of Otota of Igbide (Otota Ologbo) is done by Unuame community of Igbide Clan.

2. A DECLARATION that the purported withdrawal and/or confirmation of such withdrawal of Otota of Igbide (Otota Ologbo) from the plaintiff by the Directorate of Local Government and Chieftaincy Affairs, Delta State and the purported cancellation of Certificate of Registration No. TC/LS/89/42 issued to the plaintiff by the Government contained in a letter No. CHC.27/Vol.11/482 dated 30th July, 1993 from Directorate of Local Government and Chieftaincy Affairs as irregular, illegal, unconstitutional, incompetent, null and void and of no effect whatsoever.
3. A DECLARATION that the plaintiff is the incumbent Otota of Igbide (Otota Ologbo) in the Isoko South Local Government Area of Delta State of Nigeria.
4. A DECLARATION that the 4th defendant (Chief William Odie) has not been duly appointed as the Otota of Igbide (Otota Ologbo) as required by law and that the purported issuance of Certificate of Registration to the 4th defendant as Otota of Igbide (Otota Ologbo) on 30th July, 1993 is irregular, illegal, wrongful contrary to the Unuame Customary law, unconstitutional, null and void and of no effect and should be set aside.
5. A DECLARATION that there is no existing circumstance to warrant the withdrawal of plaintiff’s chieftaincy title of Otota of Igbide by the 3rd defendant.
6. An order of injunction restraining the 4th defendant whether by himself, his servants, agents or privies or whosoever, from holding himself as the Otota of Igbide (Otota-Ologbo) or wearing any regalia of the Otota of Igbide or permitting himself or taking any steps to be installed or recognised as Otota of Igbide (Otota Ologbo) or performing or causing to be performed any act or function or ceremony connected with the office of Otota of Igbide (Otota Ologbo).
7. The sum of N25,000,000.00 (Twenty Five Million Naira) as damages suffered by the plaintiff as a result of the wrongful acts of the 3rd and 4th defendants complained of.
8. A DECLARATION that the 3rd defendant’s authority has lapsed in accordance with the Igbide Native Laws and Custom.
9. Perpetual injunction restraining the 3rd defendant from further exercising the powers of the Ovie of Igbide Clan.
10. An injunctive order restraining the 1st, 2nd and 3rd defendants and/or any persons acting through and under them from further dealing, recognising and according to the 4th defendant of the privileges, rights, dignity and respect of the Otota of Igbide.
11. An order restraining 1st and 2nd defendants from dealing with and according to the 3rd defendant all the rights and privileges of the Ovie of Igbide.
12. A further injunctive order restraining the 3rd defendant from stripping the plaintiff of the chieftaincy title of Otota of Igbide Clan.
13. An order setting aside Certificate of Registration issued to the 4th defendant as Otota of Igbide.”

As already stated above, pleadings have been completed. The plaintiff filed his Amended Statement of Claim while the 3rd and 4th defendants filed their statement of defence. A joint statement of defence was also filed by the 1st and 2nd defendants. The plaintiff filed a reply to the statement of defence. Thereafter the defendants filed a motion in which they prayed the court for the following relief:”

Dismissing this suit in that-

(a) pursuant to the Traditional Rulers and Chiefs Edict (No.16) 1979 of the Bendel State and the Federal Military Government (Supremacy and Enforcement of Powers) Decree No.12 1994 this Honourable Court lacks jurisdiction to entertain the plaintiff’s claim as set out in the Amended Statement of Claim and Reply to the 3rd and 4th defendants’ Statement of Defence;

(b) the plaintiff’s claim as presently constituted and as set out in the Amended Statement of Claim and Reply to the 3rd and 4th Defendants’ Statement of Defence, discloses no cause of action and/or reasonable cause of action;”

The motion was supported by a 14-paragraph affidavit sworn to by the 3rd defendant. A number of Exhibits were attached to the affidavit. Among the Exhibits attached are a letter dated 30th July, 1993 titled “Revocation of traditional chieftaincy title of Otota of Igbide clan conferred on D.E.A. Etaluku”, and a certificate of registration of a traditional chief under part 3 of the Traditional Rulers and Chiefs Edict 1979 by which William Odie was registered as the Otota of Igbide. The certificate was issued by the Director General for Chieftaincy Affairs. Also attached is another certificate issued by the same Director General and dated 15th May, 1989. Chief D.E.A. Etaluku was by this said certificate registered as the holder of the Traditional Chieftaincy Title of Otota of Igbide.

The letter dated 30th July, 1993 and exhibited along with the affidavit in support of the motion was addressed to Chief D.E.A. Etaluku and signed by C.C. Enwemnwa for Director General, Directorate for Local Government and Chieftaincy Affairs. In the said letter, the writer informed the plaintiff, inter alia, that the registration of his chieftaincy title of Otota of Igbide had been revoked.

The plaintiffs swore to and filed a 13-paragraph counter-affidavit in opposition of the motion. When the motion came up for hearing before the lower court, learned counsel for the parties addressed the court on the matter. Thereafter, the matter was, on 4th April, 1995, adjourned to 17th May, 1995 for the ruling. When the matter came up on the date fixed for ruling, the attention of the learned trial Judge was drawn by Mr. Okpoko S.A.N., learned Senior counsel for the plaintiff, to a motion filed by him in which the plaintiff sought, inter alia, for a transfer of the case to another court for hearing. The motion was supported by two affidavits. The 1st of the two affidavits was a 9-paragraph affidavit sworn to by the plaintiff himself. In it, he alleged, inter alia,  that one Rutherford Agege had informed him that he learnt that the Chief Judge of the State had instructed the learned trial Judge to strike out the claim and that when he narrated the information to Mr. Okpoko S.A.N., his counsel, he was advised by the said Mr. Okpoko to depose to an affidavit as to what he told him if he was sure of the truth of his facts, hence he deposed to the affidavit.

The 2nd affidavit was a 12-paragraph affidavit sworn to by Rutherford Agege. In it, the deponent narrated his story as to how he met the 4th defendant who told him efforts he was making to end the litigation between himself and the plaintiff and how the Chief Judge of the State was assisting in that respect. He further deposed, inter alia, that the Chief Judge had promised to instruct the learned trial Judge to strike out the claim and that he should come back at a later date to hear the result of his instruction to the learned trial Judge. That when he went back, he was told by the learned Chief Judge that he had given specific instruction to the trial Judge to strike out the case and that that would be the end of the matter.

The court did not deliver the ruling fixed for that day in view of the development brought to the notice of the court by Mr. Okpoko, S.A.N. The court’s entry for that day reads, inter alia, as follows:-

“It is necessary to consider the application that has been made by the learned Senior Advocate. The case is therefore adjourned to 22nd May, 1995 for ruling.”