Umoru & Anor. V. Zibiri & Ors (2003)

LAWGLOBAL HUB Lead Judgment Report

A. KALGO, J.S.C.

This action was filed on the 3rd of December 1986, by the plaintiffs/applicants against the defendants/respondents in the High Court of Bendel State in the Owan Judicial Division holden at Afuze. In the amended statement of claim, the appellants claimed against the respondents the following relief:

“1. A declaration that the purported appointment of the 1st defendant as the Village Head of Ivbiaro in Ivbi-Ada-Obi Clan in the Owan Local Government Area is null and void in that the said appointment was contrary to Ivbiaro custom.

2. A declaration that the purported appointment of the 1st defendant as the Village Head of Ivbiaro and Clan Head of Ivbi-Ada-Obi and the approval thereto by the 2nd, 3rd and 4th defendants on the purported recommendations of the 5th defendant is null and void in that the purported appointment is contrary to Ivbiaro custom.
3. A declaration that the purported investigation by the 5th defendant of the disputed claim to the village headship of Ivbiaro/clan headship of Ivbi-Ada-Ohi and the recommendations of the 5th defendant which resulted in the approval of the 1st defendant’s appointment as the Village Head of Ivbiaro and Clan Head of lvbi-Ada-Ohi is illegal, null and void that the 5th defendant has no power in law to carry out such investigations.
4. A declaration that the 1st plaintiff, Chief Audu Momodu of Ivbiokhulor Ruling House, Ibiaro is the person entitled by custom to be the village head of Ivbiaro having been so appointed by Ivbiokhulor Ruling House entitled to do so by custom; and therefore entitled to be Clan Head of Ivbi-Ada-Obi.
5. Perpetual injunction restraining the 1st defendant from parading himself as the Village Head of Ivbiaro and Clan Head of Ivbi-Ada-Obi and the 2nd, 3rd, 4th and 5th defendants by themselves, their servants and agents from installing/coronating or dealing with the 1st defendant in any manner whatsoever as the Village Head of Ivbiaro and the Clan Head of Ivbi-Ada-Obi.”

At the trial pleadings were filed and exchanged and both parties called witnesses who testified and tendered documents in support of their respective pleadings. At the end of the case learned counsel for the parties addressed the court and in a reserved judgment Dugbo, J. dismissed the appellants’ claim in its entirety after he said:

“Having held that the 1st defendant is the head of the appropriate Ruling House, he automatically succeeds as the clan head of IVBI-ADA-OBI. Thus the validity of his appointment as contained in BSLN 77 of 1986 cannot be questioned”.

The appellants were dissatisfied with this and appealed to the Court of Appeal. The Court of Appeal dismissed the appeal and affirmed the decision of the trial court. The appellants appealed to this court.

In the brief of argument filed on behalf of the appellants in this court, they raised 4 issues to be determined by the court in this appeal. They read:

“1. Whether the Court of Appeal was right in holding that, the learned trial Judge was right in rejecting the evidence led by the appellants that Okhulotor was the eldest son of Aro… That there was an agreement among the quarters that the village head of Ivbiaro should always be selected from the descendants of Okhulotor.

2. Whether the Court of Appeal was right when it affirmed the judgment of the trial Judge that the traditional evidence led by the 1st respondent was preferable to that of the appellants.
3. Whether the Court of Appeal was right to have held the appointment of the 1st respondent as the village head of Ivbiaro and Clan Head of Ivbi-Ada-Obi Clan was based on the recommendation of the appropriate authority.
4. Whether the Court of Appeal was right to have held that it was not necessary to institute a public inquiry into the headship of Ivbiaro headship before 1st respondents was appointed.”

For the respondents only the 1st respondent filed his brief on his own behalf and in it he identified the following issues:

“1. Whether the Court of Appeal was right in affirming the trial court’s evaluation of evidence of traditional history as it relates to the selection, appointment and recognition of the village head of Ivbiaro and clan head of IvbiAda- Obi Clan.

2. Whether the selection and appointment of the Village Head of Ivbiaro and Clan Head of Ivbi-Ada-Obi Clan is based on the recommendation of the appropriate authority.
3. Whether the Court of Appeal was right in affirming the decision of the trial court that it is not necessary to institute a public commission of inquiry into the headship of Ivbiaro, before the 1st respondent was appointed.”

The learned counsel for the 1st respondent also raised in his brief a preliminary objection to grounds of appeal 1, 2 and 3 in the appellants’ notice of appeal. His ground of objection is that these grounds complained of misdirection in law and on facts at the same time. To that extent, he submitted, the grounds are incompetent and should be struck out together with arguments on issues 1, 2 and 3 in the brief of the appellants. He cited in support the cases of Nwadike & Ors. v. Ibekwe & Ors. (1987) 4 NWLR (Pt.67) 718, (1987) 11-12 SCNJ 72 at 99-100; Ogbechie v. Onochie (1986) 2 NWLR (Pt. 23) 484; Aghaka v. Amadi (1998) 11 NWLR (Pt. 572) 16 at 24.

The appellants’ counsel did not file a reply brief in which he could answer the objection and he was absent when the appeal was heard on 30th March 2003. This court still has the power to consider the objection on merit in the interest of justice before arriving at any decision on it. Grounds of appeal 1, 2 and 3 in the appellants’ notice of appeal complained of “misdirection in law and on facts”, and in each ground particulars were given of the alleged misdirection in both issues of law and fact. Order 8 r. 2(2) of the rules of this court provides:

“If the grounds of appeal allege misdirection or error in law the particulars and nature of the misdirection or error shall be clearly stated”.

A misdirection is itself an error as it entails following a “wrong direction”. It can also be of law or fact. It is also common ground that you almost always apply the law to a certain sets of facts. In this case, the appellants have given particulars; some containing issues of facts and some containing issues of law each in an attempt to satisfy the requirements of Order 8 r. 2(2) (ibid). I have carefully examined the 3 grounds of appeal and find that grounds 1 and 2 are in compliance with O.8 r. 2 but ground 3 did not because it merely alleged error of facts based on evidence contained in exhibits “F”, “G” and “J”. There was no question of law raised therein at all and the fact of calling it an error of law does not ipso facto make it so. See Metal Construction (W.A.) Ltd. v. Migliore & Ors. (1990) 1 NWLR (Pt. 126) 299. No leave was shown to have been obtained from the court below or this court before filing the ground. See Nwadike v. lbekwe (1987) 4 NWLR (Pt. 67) 718; Oghechie v. Onochie (1986) 2 NWLR (Pt. 23) 484; Ifediorah v. Ume (1988) 2 NWLR (Pt. 74) 5.