Chief Court Nabira Awanen V. Belmene Ntaoh (2011)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

EJEMBI EKO, J.C.A. (Delivering the Leading Judgment)

In the judgment delivered on 9th February, 2010 IN THE Suit No. BHC/7/2010 Roland I. Akiakwo, J. of Rivers State High Court dismissed the suit of the Appellant, as the claimant’ in its entirety for lacking in merits. This appeal is against that judgment. The appellant, in this appeal, is praying that the said judgment be set aside and in its place that judgment be entered in his favour by declaring him the paramount ruler of Kpor Community in Gokana Local Government Area of Rivers State.

In the suit at the court below the appellant, as the Claimant, claimed as follows:-

1. A declaration that under Gokana Native Law and Custom as applicable to kpor in Gokana it is the Family of Gbere Kaboo and or Descendants thereof that is entitled to the Chieftaincy stool of Menebon Kpor (paramount Ruler of Kpor) and that any ascension to the stool outside the Gbere Kaboo Family is unlawful, illegal, null and void and of no effect whatsoever.
2. A declaration that the 1st Defendant Belemene Ntaoh is not under Gokana Native Law and Custom as applicable to Kpor Gokana a member and or descendant of Gbere Kaboo and thus not entitled to the Chieftaincy Stool of Menebon Kpor (paramount Ruler of Kpor)
3. A Declaration that the plaintiff being a member of the Gbere Kaboo Family and or descendant thereof is entitled under Gokana Native Law and custom to the chieftaincy Stool of Menebon Kpor (paramount Ruler of Kpor) and that his installation thereof was proper.
4. An order of perpetual injunction restraining the 1st Defendant whether by himself, servants or agents from carrying out parading and or representing and or in any manner whatsoever continuing to parade and or represent himself to anybody whatsoever as the Menebon Kpor (Paramount ruler of Kpor) and or discharging or continuing to discharge the duties of the said office and or enjoy the privileges and or appurtenances of the said stool of Menebon Kpor.
5. An Order of perpetual injunction restraining the 2nd – 4th Defendants whether by themselves, servants and or agents from recognizing and or representing and or continuing to recognze and or represent the 1st Defendant to themselves and or any other persons whatsoever whether in Kpor or otherwise or generally according the 1st Defendant recognition in any manner whatsoever as Menebon Kpor or parading him as such.
6. An Order of this Honourable court directing the 1st Defendant to file into the Registry of this Honourable court for the proper examination of the court a full and comprehensive account of all monies and or funds or property received by the 1st Defendant for and or on behalf of Kpor Community, Gokana and an order of Court directing the 1st Defendant to pay such sum as the Court shall consider necessary to the Kpor community.

The parties exchanged pleadings at the court below. The summary of the Appellant’s case is that his ancestor, Gbere Kaboo, was the founder of Kpor community and the disputed chieftaincy stool, being allegedly the first paramount ruler, the MENEBON Kpor. The appellant in the further amended statement of claim posited that upon the death of Gbere Kaboo his sons or descendants ruled Kpor and that this continued until his own biological father, Gbere Naabiradee Awanen, who died in October 1960. Appellant averred that when his father died in 1960 he had not come of age and one Chief Nkpee Baabel, who was the deputy paramount ruler to his father, started performing the duties of the paramount ruler, and that it was at this time that the father of the Respondent, the defendant, usurped the office of the paramount ruler of Kpor and started parading himself as the paramount ruler of Kpor. He gave the name of 1st Respondent’s father as Chief Mbari Ntaoh whom the Appellant alleged was appointed as a Town-Crier by his father. It appears from the further Amended Statement of Claim that on 16th January, 2000 the appellant was purportedly installed as the Menebon of Kpor. He promptly took out the writ of summons on 20th January, 2000.

From paragraphs 11, 12 and 13 of the further Amended Statement of Claim the 1st Respondent’s father, his uncle and the 1st Respondent himself between 1960 and 2000, when the suit was taken out, had established themselves on the throne of the Menebon Kpor, uninterrupted. The Appellant had averred therein that Chief Mbari Ntaoh usurped the office of Mengbon Nkpor in 1960 after the death of the Appellant’s father and that after the death of Chief Mbari Ntaoh, his own brother, succeeded him. In the amended statement of defence the name of the said brother of the said Chief Mbari Ntaoh who succeeded him was given as Bilalo Ntaoh. Of Bilalo Ntaoh, the Further Amended Statement of claim alleged that he “continued to usurp the paramount Chieftaincy stool” and that after him the 1st Defendant/Respondent subsequently succeeded him “without any mandate – to act as such”.

It is the case of the Appellant, as the claimant, that it is the native law and custom of Gokana that nobody can be crowned or installed as the Menebon kpor unless he is from the royal family.

The totality of the Further Amended Statement of claim is that since 1960, and by virtue of their usurpation of the office of Menebon Kpor the family of the 1st Defendant/Respondent, contrary to the customary law of Gokana, had persistently been occupying the stool of Menebon kpor. One Chief Nkpor Baabel who, allegedly, was the deputy paramount Ruler to the appellants’ father and who acted as paramount Ruler upon the death of Appellant’s father in 1960, and whose office the 1st Respondent’s father allegedly usurped in 1960 did not complain. No other person complained or challenged the usurpation of the office by 1st Respondent’s family from 1960 until 2000 when the 1st Respondent was in that office. The reason advanced by the Appellant for this is that he “had not come of age.” The immediate cause of action seems to be the matters averred in paragraphs 20, 21, and 22 of the Further Amended Statement of claim. That is there were complaints by the Youths that several sums of money were allegedly paid to the Respondent for the community which the Respondent is alleged to have refused to render account of on demand by the Youths led by the Appellant.

The learned trial Judge after the evidence of the parties and consideration of the final submission of counsel dismissed the appellant’s suit in its entirety. Hence this appeal. At pages 228 – 229 of the Record the learned trial Judge, after summarizing arguments of counsel, had re-stated the principles of burden of proof on the Appellant, as the plaintiff thus:-

Now, I must say without equivocation that a claimant in actions for declaration of right to occupy a Chieftaincy Stool under native law and custom, like in the present case, bears a heavy evidential burden. The claimant must establish the origin of the Chieftaincy Stool the Claimant’s interest in the Chieftaincy Stool, and how it devolved on the Claimant. The Court of Appeal has held in BAMISILE v. OSASUJI & ORS that the first two items establish the standing in the matter. The purpose of the third is to establish the substantive Claim. This burden must be discharged on the strength of the claimant’s based on credible evidence, and not on the weakness of the defendant’s case. That was the decision of the Supreme Court in ALAO v. AKANO & ORS. The Claimant claimed at the trial court that he was entitled to occupy the position of Baale or village head of Oke-Oyi in Kwara State. At the Supreme Court the issue was whether the appellant established his claim.

This statement did not go down well with the appellant. He made a serious issue of it in the appeal. On the whole the Appellant filed 7 grounds of Appeal, out of which he formulated 3 issues for determination in the Appellant’s Brief of Argument settled by Chief A.N. Nafo of counsel

The Respondent’s Brief filed on 6th July, 2010 was settled by J.T. Kpakol, Esq of counsel. Like the Appellant the Respondent also formulated 3 issues from the 7 grounds of appeal. The issues are not all that dissimilar. The appellant’s 3 issues are as follows:-

1. whether the failure of the learned trial Judge to put the totality of the evidence adduced by the appellant and his witnesses as well as evidence elicited in his favour under cross-examination on the imaginary scale of justice for purposes of evaluation and weight does not amount to a breach of Appellant’s right to fair hearing, perverse finding and miscarriage of Justice.
2. whether the burden of proof in a chieftaincy matter is different from that required in other civil suit and whether the holding of the learned trial Judge that a claimant in actions for declaration of right to occupy a Chieftaincy Stool under native law and custom bears a heavy evidential burden does not occasion a miscarriage of justice.
3. whether the learned trial Judge was right when he suo motu raised the issues of laches and a acquiescence and apply the same to a chieftaincy dispute anchored on native law and custom and in circumstances which resulted in deprivation of fair hearing.

The more succinct issues formulated by the Respondent are more apt and direct to the points. They are:-

a. Whether the learned trial Judge properly evaluated the evidence of the Appellant and his witnesses.

b. Whether the holding of the learned trial Judge that a claimant in actions for declaration of right to occupy a chieftaincy Stool under native law and Custom bears a heavy evidential burden occasioned a miscarriage of justice.