Mr. Melford Agala & 9 Ors V Chief Benjamin Okusin & 3ors (2010)

LAWGLOBAL HUB Lead Judgment Report

A.M. MUKHTAR, JSC 

The plaintiffs (who are now the respondents in this appeal) in the High Court of Rivers State Holden at Degema claimed the following reliefs as per their amended Statement of Claim against the defendants who are now the appellants in this appeal:-

“(3) A declaration that the 1st Defendant Chief Olunta Alibo who’s Chieftaincy emanates from Okoro compound is not a Chief of Okusin compound and therefore cannot be paramount Head of the said Okusin compound under Kalabari Native law and custom neither can the Plaintiffs come under the jurisdiction of his Chiefdom. An injunction restraining the1st Defendants from parading himself, as” Head of the said okusin Compound to which the plaintiffs and1st set of Defendants belong.

An Injunction restraining all the Defendants from accepting, recognizing or dealing with the said 1st Defendant as Head of Okusin polo to which the plaintiffs and 1st set of Defendants belong. An Injunction restraining all the Defendants their servants and or agents or any person or persons acting in trust for or under them from identifying or doing or refrain from doing anything that may be tantamount to identify the said okusin polo as Alibo polo of Ido in Degema Local Government Area of the Rivers State.”

The plaintiffs instituted the action for themselves and in a representative capacity for the Oko family of which they are members. I ‘will summarise the plaintiffs case as contained in their amended statement of claim. In 1884 when Ido town was founded there were eight major compounds including Okusin and Okoro. The first daughter of Okusin Oko together with her household came to the present town of Ido to re-establish the compound. Later her sister Ikpaiko and her son Awo joined her in Ido in the compound named Oko Polo and later changed to Okusin Polo by all descendants of okusin. After the death of Oko her first son Iganikon became the head of the Okusin family and was succeeded by Chief Nelson Okusin family, and was succeeded by chief Nelson Okusin. The plaintiffs traced the history of the defendants’ family and their relationship with the plaintiffs which came about through marriage with Alibo of Okoro compound and so Okusin Polo can never be named after AIibo, which the defendants Want to effect vide a letter.The.defendants wrote another letter to the plaintiffs Head of Okusin family denouncing. His headship of Okusin compound.

Consequently the plaintiff took the 1st _4th Defendants before the Ido Council. Of Chiefs, who asserted that the land upon which the compound was situated was cleared initially by Awo Alibo and his descendant Dewari. The plaintiffs were not satisfied and they initiated a further process to Abbey House of Buguma, the arbitration of which the 1st-4th defendants declined. The actions of the defendants led to the institution of this action in their high court.

The defendants in their amended statement of defence denied most. Of the plaintiffs allegations, adding that at the arbitration, both parties paid the arbitration fees and were sworn with their witnesses on oath under pain of death to speak the truth before the decision was given for that they relied on waiver, estoppel per rem judicatam, and estoppel by conduct. The defendants denied that Okusin and Okoro Were any of the eight major, compounds/house at the time of the settlement at New Ido in1884, but that, their chieftaincy stools were created by members of their families. They denied that Oko established or headed the Okusin family as it was even contrary to Kalabari Custom. They traced their rights and roots to Alibo, their own ancestor.

After the completion of pleadings both parties adduced evidence, which were evaluated by the learned trial judge who at the end of the day entered judgment in favour of the plaintiffs. Dissatisfied with the decision,the defendants appealed to the Court of Appeal, which affirmed the decision of the trial court, and dismissed the appeal. The defendants have again, Defendants (lst set) in answer to paragraph 19 and 20 (sic) of the Statement of Claim admit writing the two letters. The first was written on 9th July, 1985 to 5th Defendant as Amadabo of Ida with a copy endorsed to 1st Plaintiff of the resolution of the Alibo House of attempts being made by Oko’s descendants to change the name of Defendants (1st set) compound from Alibo Polo (compound) to Oko Polo by frequent reference to Alibo Polo as Oko Polo or Okusin Polo. The second letter also dated 9/7/85 was written to 1st Plaintiff notifying him of the vote of no confidence in him by Ikpaiko’s children and not to recognize him (Ist Plaintiff) as Chief Benjamin Okusin. Both letters were signed by Defendants in various capacities the earlier by 3rd and. 4th Defendants on behalf of the Alibo House and the later by 2nd, 3rd and 4th Defendants for Ikpaikos children who claim equal right to the Okusin stool with 1st Plaintiff. The authors of both letters in their capacities do not require the knowledge or consent of the 1st plaintiff before doing so.’

I will now reproduce the evidence of the plaintiffs in proof of the above material pleadings. The 4th plaintiff who testified as PWI gave the following material evidence:- ‘Sometime in July 1985, the 2nd and 4th Defendants wrote a letter to the 5th Defendant (the Amadabo of Ido) notifying him of a purported change of our compound from Okusins compound to Alibo’s compound. The letter was copied to our head chief – 1st plaintiff – and he gave it to me to read it for him since he cannot read and write. On 9/7/85my head chief also gave me another letter to read for him which I did. It.waswritten by2nd, 3rd and 4th-Defendants”

The letters mentioned in the evidence. Were admitted in evidence as ExhibitsP.l and P.2 In the course of cross examination the witness said inter alia thus “The issue in this case is that we call it Okusins compound while the lst set of Defendants ca11 it Alibo compound. I deny your suggestion that there is nothing .like Okusin’s compound in New Ida. Rather there is no Alibo compound.”

At this juncture 1 will reproduce the content of Exhibits: P .1 and P.2 For a proper understanding of the complaint and grave man of the issue in controversy. Exhibit P.lreads:-

‘Your Royal Highness, . AI. IBOPOLO (COMPOUND). We had (sic) been directed to inform you and the Ido Council of Chiefs that the following decisions were taken at a full meeting of the Alibo House on the 29th June, 1985.

1.That when the town moved from Elem Ido to the new settlement, all families first settled at Opuje Poku while bushes were being cleared.

2. The bush clearing in our compound was done by our fathers in the persons of late Dawa II Alibo and Awo Alibo
3. After the bush clearing; families moved from. Opuje-poku. to their .respective compound and these compounds were named after their FATHERS e.g. Eguere,Esuku,Alibo just to mention a few.
4. In the case of our compound the public had been misled over the years by calling it names like Oko Polo, Alibo Polo and recently Okusin Polo.
5. The Chiefs and the entire people of Alibo compound have now resolved that as from now the compound should be called ALIBO POLO AND CHIEF OLUNTA AWO ALIBO is the Head of the compound….”

The pertinent question to ask here is if the compound in controversy was originally called Alibo as per the content of paragraph (3) supra, then how did it get to be called Oko Polo and Okusin Polo later, as per the content of paragraph (4) supra?