Chief (Hon) Obong Smith Udoeka & Ors V. Isikobo John Isikoboo & Ors (2012)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment)

The appellants as plaintiffs commenced suit No. HEK/51/2008 at the High Court of Akwa Ibom State by filing their writ of summons at the Eket Division on 12th May, 2008 with a statement of claim of 28 paragraphs. As endorsed on the writ and averred in paragraph 28 of the statement of Claim, the plaintiffs claim against the defendants as follows:

(a) A declaration that the 1st plaintiff being a descendant of the ruling family in Okoroutip village is entitled to ascend the royal stool of the village headship of Okoroutip, Ibeno Local Government Area, having been duly selected and presented by the royal kingmakers of Okoroutip village, Ibeno Local Government Area.

(b) A declaration that by the selection and presentation of the 1st plaintiff by the royal and ruling family in Okoroutip village to the entire Okoroutip village and the subsequent presentation of him to the 2nd Defendant as the village head elect, no vacancy existed for the declaration of dispute by the 2nd Defendant.

(c) An order that since there was no dispute in the selection and presentation of the 1st plaintiff and since no person from the royal and ruling family in Okoroutip village had challenged the selection of the 1st plaintiff as the village head, the 2nd Defendant had no powers to have declared a dispute as she did and so the proceedings of the 2nd Defendant’s council was a nullity and void.

(d) An order that only a member of Essien Owong Afaha, Okoroutip village has the right to ascend the headship of Okoroutip village in Ibene LGA and so official recognition be given to the 1st plaintiff, a duly selected and presented village head elect of Okoroutip village.

(e) An order that the 2nd Defendant has no iota of right to have declared the selection of the 1st Plaintiff as the village head elect disputed but to have forwarded the name of the 1st plaintiff to the 3rd Defendant for accordance of official recognition as the village head by the Executive Governor of Akwa Ibom State.

(f) An order of injunction restraining the 3rd defendant from according official recognition to the 1st Defendant as the village head of Okoroutip village, he not being a member of the royal and ruling family of Okoroutip village and being a serving civil servant when the 2nd Defendant purportedly declared the selection of the 1st plaintiff disputed the dispute said to be between the 1st plaintiff and 1st Defendant.

On 30th June, 2009, a Notice of Preliminary Objection was filed by the 3rd and 4th respondents challenging the jurisdiction of the trial court on the ground that:

“This case is not brought in compliance with the mandatory condition precedent as contained in Section 32 (1) & (2) of the Traditional Rulers Low Cap 134 vol. 6 Laws of Akwa Ibom State 2000.”

After taking arguments on the preliminary objection, the learned trial judge in a considered ruling delivered on 22nd July 2010 upheld the objection and consequently struck out the suit. Aggrieved by the ruling, the plaintiffs (now appellants) filed Notice and Grounds of Appeal on 10th August, 2010 with 3 grounds of appeal. The Appellants’ Brief of Argument prepared by A. A. Asuquo Esq. was filed on 21/10/2010 while 3rd – 4th defendants (now called the respondents) filed the 3rd and 4th Respondents Brief of Argument on 27th January, 2011. The appellants’ Reply Brief was filed on 7th February, 2011.

The appellants formulated the following issues for determination:

1. Whether having pleaded pre-action notice in their statement of claim, the Plaintiffs/Appellants were bound to proof the issuance and service of the said Notice at a preliminary stage as reasoned by the learned trial judge in his ruling.

2. Whether the striking out of the suit by the trial judge when the Plaintiffs/Appellants actually pleaded pre-hearing notice in paragraph 24 of their statement of claim without affording them opportunity to lead evidence in proof of service of the said pre-hearing notice does not amount to denial of fair hearing to them (Plaintiffs/Appellants).