Otuu Ogologo V. Ekuma Uche (2005)

LAWGLOBAL HUB Lead Judgment Report

BELGORE, J.S.C.

The appellants were plaintiffs at High Court of former Imo State holden at Afikpo Judicial Division. Their statement of claim concluded as follows:

“(a) A declaration that the 1st plaintiff is entitled to be presented to and recognized by the 9th defendant as the traditional ruler or Eze of Afikpo having been selected by the Traditional Council Afikpo autonomous community.

(b) A declaration that the plaintiffs are the persons entitled in accordance with the customary law of Afikpo to select a traditional ruler/Eze of Afikpo and present same for recognition to the 9th defendant as required by law.

(c) Perpetual injunction restraining the 1st, 2nd, 3rd, 4th and 5th defendants from presenting anyone for recognition as Eze or as Traditional Ruler of Afikpo and the 6th, 7th, 8th and 9th defendants or their agents and privies from ever accepting the presentation of or recognizing any of the defendants or anybody else not selected and presented by the plaintiffs as Eze or Traditional Ruler of Afikpo.

(d) An order setting aside the purported Ehugbo (Afikpo) Eze/Chieftaincy Constitution dated 28th day of October 1979 as not made in accordance with the custom of Afikpo Autonomous Community and Imo State of Nigeria Laws on Chieftaincy.”

The statement of claim was amended several times and this greatly protracted the trial of the case. Similarly the defendants had to amend their respective statements of defence. Thus, the suit filed in 1987 was delayed by motions, counter-motions and objections with several rulings before the first witness for plaintiffs started giving evidence on 8th January, 1990. Even during the taking of evidence, there were still motions and objections to file amended pleadings. However, as the plaintiffs called only two witnesses the hearing was expeditious despite the preliminary skirmishes on procedure. After the evidence of DW5, Secretary of Afikpo Local Government on 14th June, 1990 the case closed for addresses by counsel, but not without another motion to amend statement of claim which was not opposed and was granted, and of course the 8th and 9th defendants also filing amended statements of defence, judgment was delivered by Anyanwu J, on 4th day of September, 1990.

The claim of the plaintiffs in a representative capacity is anchored on their paragraphs 4, 5, 6, 7, 13, 15, 17 and 18 of their statement of claim and of course on paragraph 32 above quoted. For convenience of apprehending the claim, I quote hereunder the said paragraphs 4, 5, 6, 7, 13, 15, 17 and 18:

“4. By the existing custom and tradition, the Traditional Ruler of Afikpo Community is selected from the descendants of the founding fathers of Afikpo. The said founding fathers were Igbo Ukwu, Ataja, Urobo Chiali and Ukwu Anyi Njaka. All the plaintiffs on record are descendants of these founding fathers.

5. The said four founding fathers came from Aro and founded many settlements/villages which today are collectively called Afikpo. Igbo Ukwu founded Ndibe settlement. Urobo Chiali founded and settled in a place called Ngodo. Ataja founded and settled in Amaizu while Ukwu Anyi Njaka founded and settled in a place called Ezi Agbo Mgbom.
6. Ndibe, Ngodo, Amaizu and Ezi Agbo Mgbom settlements because of their cultural and religious affinity as migrants from Aro decided to unite as one political entity. Consequently they came together under the leadership of Igbo Ukwu and thenceforth called themselves Eho-Igbo (Ehugbo or Afikpo).
7. Apart from the above four villages originally’ founded by the aforesaid four founding fathers each one of them expanded and founded more settlements/villages which remained under his domain and which he ruled from his original settlement.
8. The plaintiffs are called Umu Otosi in Afikpo. Otosi is a juju reputed for its magical powers. At the time the plaintiffs’ ancestors migrated from Aro some of them took along with them, the Otosi juju and settling on their respective villages, established and installed the juju for their direct descendants who in turn established and installed for their own direct descendants till now the same is in the possession of the plaintiffs. The Obu houses of the four founding fathers have Otosi which is a symbol of power and authority. The possessors and non possessors of Otosi are called “Amadis” and Umumgbeyi” or strangers elements respectively in Afikpo. By custom, the judicial and executive powers rest on those who possess the Otosi. The plaintiffs will found in the 1931 Intelligence Report of Afikpo group by R. Waddignton B. The plaintiffs will also found on a letter reference No. OG.317 /A/81 of 14th October, 1935 on Afikpo Clan Intelligence Report from the Resident Ogoja Province to the Hon. Secretary Southern Provinces to show that the plaintiffs are and have always been the governing class in Afikpo.
9. Igbo Ukwu ruled the entire Ehugbo or Afikpo assisted by the other three founding fathers…”
10. The appointment and selection of the above named traditional rulers were made after the elders who were above the ages of 65 years and who were direct descendants of the said four founding fathers had had due consultations, with Otosi…”
11. The Otosi is usually consulted at the shrine in Ndibe section – the elder section, by the Chief priest of the Obu Ezenwachi called “Ome Erusi.” The Ome Erusi communicates the decision of the Otosi to the elders who go to the shrine with him. The elders then announce the persons selected to all the sections and villages and coronation is then fixed.”

Learned trial Judge held that the above paragraphs of the statement of claim substantially represented what the plaintiffs claim to be “custom and practice” of the people of Afikpo which had been governing identifications, selection and coronation of the traditional rulers of Afikpo. “This finding as to what the plaintiffs now appellants (as they were in Court of Appeal) claim is correct. The other parts of statement of claim averred to the application of the custom and tradition of Afikpo people until 1978 when according to them the first to fifth defendants took advantage of “Chieftaincy Edict of 1978” and selected one Otuu Oyim as a traditional ruler. It was further contended by the plaintiffs that when the said Otuu Oyim died in 1985 the sole Administrator of Afikpo Local Government, the Imo State Commissioner for Local Government and Chieftaincy Affairs, the Attorney-General of Imo State and Military Governor of Imo State (i.e. 6th – 9th defendants/respondents respectively) accorded recognition to one Igarinwe Nnachi Enwo who was selected by 1st to 5th defendants as the traditional ruler of Afikpo. The said Igarinwe Nnachi Enwo died in 1987 and first to fifth defendants again selected one Michael Akpuchukwu as successor for 6th to 9th defendants to accord recognition contrary to custom and tradition.

In their statement of defence the 1st to 5th defendants jointly traversed the most pertinent paragraph of statement of claim. It is highly important to set out their paragraphs 2, 4, 5, 9, 10, 33 reading as follows:-

“2. With regard to paragraph 1 of the amended statement of claim the defendants deny the representative capacity in which the plaintiffs are suing and the existence of the Traditional Council Afikpo they purport to represent; the defendants further aver the existence of the well known Traditional Council of Elders Afikpo whose members have not authorized the plaintiffs to bring this action.

4. The defendants deny paragraph 4 of the amended statement of claim and put the plaintiffs to the strict proof of the allegations of fact therein; in further answer the defendants aver that there had never been a sole traditional ruler for the entire Afikpo community either by custom or otherwise until 1976 when chief Otuu Oyim 1 was identified and selected as the 1st traditional ruler of Afikpo (or Ehugbo) with the title Omaka Ejali Ehugbo; Chief Otuu Oyim 1 was later presented to and eventually recognized by the Government of Imo State and was issued with a Certificate of Recognition dated 18th July, 1979 which is hereby pleaded.
5. The defendants deny paragraphs 6, 7, 8, 9, 10, 11 and 12 of the amended statement of claim and put the plaintiffs to strict proof. Generally, the defendants aver that Afikpo is an aggregate of 25 villages most of which claim to be separately founded and these founders could not be limited to only four as claimed by the plaintiffs; the said villages are grouped into 5 groups of villages…”
6. With regard to paragraph 13 of the amended statement of claim the defendants admit that those villages that purchased the Otosi juju had their members called “Amadi” while the rest whose villages did not purchase the juju were called “Umumgbeyi” or non-Amadi were strangers or regarded as such or that the Amadis wielded judicial and/or executive powers at all by virtue of possessing the Otosi; it is averred that the Intelligence Report pleaded by the plaintiffs show that certain devilish or satanic privileges claimed by the Amadis were resisted or denied by the Umumgbeyi, and that, in any event, those privileges claimed never included any right of an Amadi to head Afikpo as a whole or the right to select such a head or leader.
7. The defendants plead the following facts which are recorded in the 1931 Intelligence Report on Afikpo village group by H. Waddington (D.O.) being statements in the course of duty with personal knowledge of the facts by the maker now dead or beyond the seas and not reasonably practicable to secure attendance:-

“(i) The distinction between Amadi and Umumgbeyi created problem.

(ii) A meeting was called at which the Amadi villages were well represented and it was agreed without opposition that administrative authority should be exercised by Amadi and Umumgbeyi working together on equal terms.