Ozo (Prof) Chiweyite Ejike (Oguowulu) & Anor V. Chref Anako Onuzulike (Ezedioranma) & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

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

This appeal is against the judgment delivered on 24/4/2007 by Hon. Justice A.A. Nwobodo sitting at Enugu Division of the High Court of Enugu State in respect of Suit No. E/2/2004 which the appellants as plaintiffs instituted through the Writ of Summons dated 2/1/04 and filed on same date and the Statement of Claim that was subsequently filed. The plaintiffs had claimed the following reliefs:-

1. A declaration that the Ozom Aguobu Owa Autonomous Community of Ezeagu Central Local Government Area is bound by the age long convention, custom, usage and tradition which held out, recognized and accepted Ozo Ejike family as a well known dynasty from which a chief or traditional ruler must be selected.
2. A declaration that the Code of Conduct/Constitution dated 1st August 1976 governing relationship between the traditional head of Aguobu-Owa and the people of Aguobu Owa is binding on the Ozom Aguobu-Owa Autonomous Community in Ezeagu Central Local Government Area of Enugu State.
3. A declaration that the Ozom Aguobu Owa/Town Union Constitution/Review/Debate Committee cannot amend or tamper with the age long convention, custom, usage, and tradition which held out, recognized and accepted Ozo Ejike family as a well known dynasty from which a chief or traditional ruler must be selected.

AND/OR

4. A declaration that any amendment of the age – long convention, custom, usage and tradition which held out, recognized and accepted Ozo Ejike family as a well known dynasty from which a chief or traditional ruler must be selected by the Ozom Aguobu-Owa Community/Town Union Constitution Review/Debate Committee without hearing from the plaintiffs runs contrary to the fair hearing provision of the Constitution of Nigeria and is thus null and void and of no effect.
5. A declaration that the Ozom Aguobu Owa Community/Town Union Constitution Review/Debate Committee as set up is ultra vires and illegal.
6. An order of Court directing the Igweship Committee of Ezeagu Central Local Government Area of Enugu State not to be guided or influenced by any thing recommended to it by either the 1st set of defendants or the 3rd set of defendants except as accepted and concurred to by the plaintiffs on the issue of selection of traditional ruler of Ozom Aguobu Owa in Enugu State.
7. An order of injunction restraining all of the defendants either by themselves or their servants, agents or privies from accepting and/or relating with any position or situation or doing anything whatsoever which contradicts the age-long convention, custom, usage and tradition to the effect that Ozo Ejike family is the well known dynasty from which a chief or traditional ruler must be selected.
8. An order of Injunction restraining the Ozom Aguobu Owa Community/Town Union Constitution/Review/Debate Committee from further sitting and deliberation forthwith.

The respondents as defendants filed a Statement of Defence and denied the plaintiffs’ claim while the plaintiffs filed a Reply to Statement of Defence. At the trial, evidence was adduced by the parties, the plaintiffs called four witnesses as PW1 – PW4 while two witnesses DW1 and DW2 testified on the side of the defence. After the learned Counsel for the parties had filed and adopted their respective written addresses the learned trial judge in the judgment on pages 257 -272 of the record of appeal dismissed the plaintiffs’ claim.

Aggrieved by the decision of the learned trial judge, the plaintiffs (now called the appellants) filed their Notice of Appeal on 18/6/2007 in commencement of this appeal with eight grounds of appeal (a-h) as amended with the leave of this court granted on 28/9/10 in respect of ground (d) thereof.

In the Appellants’ Brief of Argument prepared by Osmond Afam Aputa of Counsel, dated 11/10/10 and filed on 12/10/10 the following issues were formulated for determination: –

1. Was Ozo Nze Wa Ozo Nevo a Traditional head of Ozom Aguobu Owa?
2. Was Ozo Ejike a traditional ruler of Aguobu Owa and Is the traditional Stool reserved for Ozo Ejike family?
3. Did the appellants fail to prove that Chief I.N. Ejike was selected and presented in accordance with law?
4. Does exhibit D or the age old custom to the effect that Ozo Ejike family is the functional dynasty from which traditional rulers is selected apply in present day Ozom Aguobu Owa.

The Respondents’ Brief of Argument was settled by their learned Counsel, G.E. Ezeuko Jnr and filed on 16/3/11 but deemed properly filed on 25/4/12. The learned Counsel raised two issues for determination as follows:

1. Whether Ozo Nze Wa Ozo Nevo was the traditional ruler of Ozom Aguobu-Owa and head of the dynasty.
2. Whether exhibit D has any evidential value in establishing the appellants’ dynasty in Ozom Aguobu-Owa.

A Reply Brief was filed by the appellants on 8/5/12.

At the hearing of the appeal the learned Counsel for the parties adopted their respective briefs and relied thereon to urge this court to grant the prayers sought therein.

In arguing the issues in the appellants brief, the learned Counsel submitted on issue 1 that paragraphs 5-7 of the Statement of Claim show the pleadings of the appellant that Ozo Nze Wa Ozo Nevo the appellants’ forebear was a traditional head of Ozom Aguobu Owa, and a mere denial by the defendants without answering the material points raised therein is not a proper traverse or answer to averments in the Statement of Claim; citing ADELEKE V. ASERIFA (1990) 3NWLR (PT. 136) 113. It was submitted that an evasive traverse in pleading amounts to an admission.

It was contended that paragraph 5 of the Statement of Claim that ancient Owa was a republic without kings is a statement of historical development of rulership in the original clan and ancient Owa does not refer only to Aguobu Owa or Ozom Aguobu Owa. It was argued that the evidence of the PW1 shows that the appellants’ forebear Ozo Nze Wa Ozo Nevo emerged as the natural leader or head of the people of Aguobu Owa in the 19th Century and that was the origin of the dynasty while the procedure of succession was documented subsequently.

It was contended that the respondents admitted on the strength of the pleadings that Ozo Nze Wa Ozo Nevo was the traditional head of Ozom Aguobu Owa and the learned Counsel submitted with reliance on ONWUANUMKPE V. OWOUANUMKPE (1993) 8 NWLR (PT. 310) 186 and O.A.U. COOPERATIVE SOCIETY V. NACB (1999) 2 NWLR (PT. 590) 234 that facts that have been admitted do not require to be proved further. The learned Counsel submitted also that the respondents in this case had an opportunity to challenge the testimony of the PW1 that Ozo Nze Wa Ozo Nevo was a traditional head of Ozom Aguobu Owa but they failed to do so through their witnesses and a court faced with such a situation of unchallenged evidence can validly hold such evidence as establishing the issue, citing MAINNAGE V. GWAMMA (1997) 11 NWLR (PT. 528) 191; OBI V. UZOR (1991) 9 NWLR (P. 213) 94; NGENE V. EGBO (1991) 7 NWLR (PT. 203. Counsel submitted also that courts are entitled to make inferences, citing LION OF AFRICA V. FISAYO (1986) 4 NWLR (PT. 37) 674.

It was contended that the inference to be drawn from the evidence of the PW1 and the DW1 is that Chief Ozo Nze Wa Ozo Nevo is the father of Chief Ozo Ejike and that the same Chief Ozo Nze Wa Ozo Nevo was the Warrant Chief mentioned by the DW1 and therefore a traditional head. It was submitted that appellants can rely on the portion of respondent’s case that is supportive of their claim on the matter in issue and project their contention that Ozo Nze Wa Ozo Nevo was a traditional head of Ozom Aguobu Owa, citing IPINLAIYE V. OLUKOFUN (1996) 6 NWLR (PT.453) 148.

It was the contention of appellants’ Counsel that the finding of the learned trial judge that the appellants did not prove that Ozo Nze Wa Ozo Nevo was a traditional head of Ozom Aguobu Owa did not agree with the pieces of evidence available in this case and is not the result of the proper consideration and avaluation of the evidence adduced by both sides.