In the Court of Appeal
In the Port Harcourt Judicial Division
Holden at Port Harcourt
ON Thursday, February 3, 2022

Suit No: CA/PH/302/2015
Before Their Lordships:

Paul Obi Elechi Justice, Court of Appeal
Ridwan Maiwada Abdullahi Justice, court of appeal
Olabode Abimbola Adegbehingbe Justice, Court of Appeal

Between

1. H.R.H. Paul Esikomiteba
2. Chief Michael Bassuo – Appellant(s)
3. Chief Nemara Owudogu

And

1. Chief Innocent I. Afagha
2. Elder Dick Onyida
3. Elder Linus Amos
4. Elder Newyear Ogbara – Respondent(s)
5. Elder Peter David
6. Elder Moses Ubele
7. Elder Geoffre Imo
8. Elder Alexander Amasueba
9. Elder Constable Ikotote
10. Elder Mabinton Okpu
11. Elder Claudius Joel
12. Elder Ogbel Edoghutu
13. Lucky Chukwugwe
14. Mr. Enato Collins I. Owudogu
15. Mr. Frederick Izuain
16. Mr. Linus Waara Atuin
17. Mr. Ekasiba Okwata
18. Government of Bayelsa State
19. Attorney-General of Bayelsa State

LEADING JUDGMENT DELIVERED BY PAUL OBI ELECHI, J.C.A.
FACTS
The appellants commenced an action at the High Court of Bayelsa State questioning the propriety of the alleged dethronement of the appellants as Obenema of Imiringi, Opal-Obenema (Deputy Obenema) and Chairman of the Imiringi Council of Chiefs all being the 1st, 2nd and 3rd appellants, respectively by the 1st to 17th respondents acting jointly and severally. The dethronement was based on the allegation that the referral of a company: Benos Nigeria Enterprises; to Shell Petroleum Development Company of Nigeria Limited by the appellants for minor contracts without the consent of the Imiringi Community was a violation of the customs warranting the deposition of the appellants.

The 1st to 17th respondents filed their statement of defence and equally counter-claimed seeking amongst others the setting aside of the staff of office of the 1st appellant given by the 18th respondent on grounds that the 1st appellant as a civil servant is forbidden by law to hold and occupy the chieftaincy stool. By virtue of the counterclaim of the 1st to 17th respondents, the 18th and 19th respondents were joined at the trial Court as 2nd set of defendants.

At the conclusion of trial, judgment was delivered dismissing the claim of the Appellants while judgment was entered for the Respondents as per their counterclaim.
Dissatisfied with the judgment, the appellants lodged an appeal at the Court of Appeal.

ISSUES FOR DETERMINATION
The appeal was determined on the following issues:
(a) Whether the counter-claim at the lower Court is statute barred?
(b) Whether the counter-claim of the defendants seeking a declaratory relief against the decision of the Governor of Bayelsa State in recognizing the 1st appellant as a Chief is competent?
(c) Whether the recognition of 1st appellant being a civil servant is void or voidable in law in view of Section 4 of the Chieftaincy Law of Bayelsa State?
(d) Whether the lower Court was right in setting aside the enthronement of the 1st appellant?
(e) Whether the lower Court’s judgment is against the weight of evidence?

APPELLANTS’ SUBMISSIONS
The learned counsel for the appellants submitted that a counter-claim being an action on its own must comply with all the necessary legal requirements required of a competent action before same can be said to be properly before a trial Court. See USMAN VS. GARKE (1999) 1 NWLR PT. 587 P. 466.

He argued that the counter-claim was commenced a period over six years which has lapsed outside the right of action period of 5 years as provided in SECTION 16 OF THE LIMITATION LAW CAP L8 LAWS OF BAYELSA STATE. That even though the respondents may have the right of action in their counter-claim, their failure to commence their action as formulated in the counter-claim removes their right of action and leaves the Respondents with bare and empty cause of action which they cannot enforce.
Counsel submitted that by the provisions of SECTIONS 2, 4, 5, 6, 31 AND 34 OF THE CHIEFTAINCY LAW CAP C4 LAWS OF BAYELSA STATE, 2006, the Governor is vested with discretion as to recognition or otherwise of a Chief under the CHIEFTAINCY LAW.

Counsel then pointed that the action of Governor of Bayelsa State in recognizing the 1st appellant as a recognized Chief or as a Chief under the Chieftaincy law, an aggrieved party can challenge his decision either by making representation to the Commissioner in-charge of the Chieftaincy for an enquiry to be held pursuant to Section 5 of the Chieftaincy law OF Bayelsa State or by way of an action commenced for judicial review of the decision taken by the Governor and not by approaching a Court for intervention by way of declaratory relief to set aside the decision taken by the Governor as done by the respondents in their counter-claim.

Counsel relied on EGUAMWENSE VS. AMAGHIZEMWEN (1993) 9 NWLR (PT. 315).
Thus, that the counter-claim of the respondents before the trial Court being one for a declaration in respect of the decision taken by the Governor given recognition to the 1st appellant as a recognized Chief under the law takes the matter outside the jurisdiction of the trial Court.

He contended that the recognition given to the 1st appellant by the Governor of Bayelsa State is only voidable at the instance of the Governor only who exercised the power and it is not void as erroneously argued by the respondents.

Appellants’ counsel submitted that the argument of the 1st-17th Respondents’ counsel that the 1st appellant breached Section 4 of the chieftaincy law, which made his recognition void, is not an error in law as it can be remedied by the Governor pursuant to Section 6 of the chieftaincy law. He submitted that the lower Court should have awaited evidence of withdrawal by the Governor before setting aside the recognition given to the 1st appellant.

1ST-17TH RESPONDENTS’ COUNSEL SUBMISSIONS
Learned counsel contended that due to the concealment of the 1st appellant’s resignation, time did not start to run until when they found out that the 1st appellant did not resign.
He argued that the chieftaincy law of Bayelsa State did not clearly question the power of the lower Court to entertain the matter. That the provision of Section 272(1) OF THE 1999 Constitution conferred on the High Court of a State unlimited jurisdiction to hear and determine any civil proceedings in which the existence or extent of a legal right, power, duty, liability, interest, obligation or claim was in issue.

Counsel submitted that all public officers are barred from accepting Chieftaincy/Traditional titles in any form while in office. He further submitted that Section 4 (F) of the chieftaincy law OF Bayelsa State which came to effect on May 6, 1978 forbids a civil servant from being recognized. That the operative word in Section 4(F) of the said chieftaincy law is “SHALL” which is mandatory makes the 1st appellant not eligible to be recognized.

The 1st-17th respondents’ counsel submitted that the lower Court was right in setting aside the enthronement of the 1st appellant who has been a full-time civil servant, which is forbidden by law. He emphasized that the High Court derives its power so to do under Section 6(6)(A) (B) of the 1999 constitution (as amended).

That there is no provision of the chieftaincy law of Bayelsa State that restricts any person access to the Court as Section 6(6) (A) (B) of the 1999 Constitution (as amended) gives an unhindered access to Court and Section 31 of the chieftaincy law of Bayelsa State being inconsistent with Section 6(6) (A) (B) of the 1999 Constitution (as amended) and by Section 1(3) of the same Constitution is void.

RESOLUTION OF ISSUES
The Court stated that though the 1st – 17th respondents may have a right of action in their counter-claim but their failure to commence their action within time by virtue of the provisions of Section 16 OF THE LIMITATION LAW CAP L8 LAWS OF Bayelsa State which states thus: “No action founded on contract, tort or any other action not specifically provided for in Parts I and II of this law shall be brought after the expiration of five years from the date on which the cause of action accrued.”

Removes their right of action and leaves the Respondents with bare hand empty cause of action which they cannot enforce any more. See AYENI VS. A.G. EKITI STATE (2002) FWLR (PT. 110) 1781 @ 1787.

In response to the arguments of the 1st-17th respondents that the power of the Governor in respect of recognition of a Chief under Section 31 of chieftaincy law CAP C4 laws of Bayelsa State is inconsistent with Section 6(6)(b) of the Constitution as it ousts the jurisdiction of Court, the Court stated that it is a thorough misconception of law. The Court then went ahead to explain that what Section 31 provides is the power of the Governor of Bayelsa State in relation to recognition of a person as a Chief and that the decision of the Governor is final in this regard.

The Court further explained that any party(ies) who is dissatisfied with the Governor’s recognition, has the options of challenging the decision of the Governor either by making a representation to the commission in charge of the Chieftaincy for inquiry to be held pursuant to Section 5 OF the chieftaincy law of Bayelsa State or judicial review. That a declaratory action as done in the instant case cannot be commenced to challenge the decision of the Governor. See OLUWADARE ADEPOJU ADESINA (OSUPA III) DEJI OF AKURE & ANOR VS. JOSEPH OLU OJO & ORS (2012) 10 NWLR (PT. 1309) 552 AT 586-587.

The Court stated that though the trial Court has the jurisdiction to entertain actions relating to Chieftaincy matters, the relief(s) being sought must be one that the Court can grant considering the provisions of the extant Chieftaincy Law of the State and not one that can be seen as taking away the statutory duty of the Governor of the State. See SUNDAY EGUAMWENSE VS. JAMES AMAGHIZEMWEN (1993) 9 NWLR (PT. 315) 1 AT 23.

That such actions must be one in respect of a decision of the commission of inquiry that might have been set up by the Commissioner under Section 5(1) & (2) of the chieftaincy law of Bayelsa State or for an action by certiorari removing to the High Court in order for it to be quashed.

Therefore, the Court held the counter-claim of the respondents seeking a declaratory relief against the decision of the Governor of Bayelsa State in recognizing the 1st appellant as a Chief incompetent and further set aside the declaratory reliefs and orders granted by the trial Court in favour of the respondents.

The Court stated that the recognition given to the 1st appellant by the Governor of Bayelsa State is only voidable at the instance of only the Governor who exercises that power and not a void act as erroneously argued by the respondents and accepted by the trial Court.

The Court in response to the issue that the 1st appellant’s breach of Section 4 SUPRA makes his recognition void, the Court stated that the act of the Governor’s recognizing the 1st appellant is not voided by the law. That it can only be remedied by the Governor pursuant to Section 6 of the chieftaincy law.

The Court then held that it was an error in law for the lower Court to have held that the recognition of the 1st appellant by the Governor of Bayelsa State without the evidence of withdrawal by the same Governor is void. The Court stated that the lower Court should have waited for evidence of withdrawal by the Governor as a Court cannot void the recognition of a Chief under the chieftaincy law of Bayelsa state where same has not being withdrawn by the Governor.
HELD
The appeal was allowed and the judgment of the trial High Court was set aside.

APPEARANCES:
ROTIMI AREMU, ESQ. – For Appellant(s)

1st to 17th respondents and 18th & 19th respondents’
counsel served hearing notice but not present in court
– For Respondent(s)
Compiled by LawPavilion