Conditions for Candidate’s Eligibility for Throne of Obong of Calabar

In the Supreme Court of Nigeria

Holden at Abuja

On Friday, the 13th day of January, 2023

Before Their Lordships

Musa Datiijo Muhammed

Chima Centus Nweze

Amina Adamu Augie

Uwani Musa Abba Aji

Helen Moronkeji Ogunwumiju

Justices, Supreme Court

SC.634/2013

Between

1.   ETUBOM (DR) ANTHONY ASUQUO ANI

2.  ETINYIN OKON EFFIONG OFFIONG

3.  CHIEF OFFIONG EYO OFFIONG

4   CHIEF EMMANUEL ENIANG OFFIONG APPELLANTS

(For themselves and on behalf of

Ufot lkot Nkpor Clan, Mbiabo lkoneto,

Odukpani Local Government Area)

                    And

1. ETUBOM ESSIEN EKPENYONG EFFIOK         1ST SET OF RESPONDENTS

2. ETUBOM OKON ASUQUO 

3. ETUBOM MICAH ARCHIBONG

 (For themselves and representing Etubom’s

Traditional Rulers Council, Obong’s Palace)

4. ETUBOM EKPO ABASI OTU      2ND SET OF RESPONDENTS

5. ETUBOM OTU EFA OTU

(For themselves and representing

the Esit Edik Traditional Council)

(Lead Judgement delivered by Honourable Amina Adamu Augie, JSC)

Facts

Sometime in 2008, the stool of the Obong of Calabar became vacant owing to the ill-health of the then Obong of Calabar. Further to this, the Etubom’s Traditional Rulers Council of the Obong’s Palace represented by the 1st set of Respondents wrote to the Esik Edik Traditional Council (Western Calabar Traditional Rulers Council/Western Council), requesting that a suitable Etubom be selected among them to be the next Obong of Calabar. The Western Council met, and agreed to cede the nomination to the Ikoneto Ruling House. The 1st Appellant became the Etubom of the Ikoneto Ruling House after the Western Council was asked to select the next Obong among themselves, hence, he had not been capped by a serving Obong or inducted into the Etubom’s Council of the Obong’s Palace.

The 1st Appellant was selected as the candidate of the Ikoneto Ruling House to the Obong’s throne, and the Appellants forwarded his name to the 2nd set of Respondents as their nominee for the stool. He was screened by the Western Council on the same day.  However, while waiting for the 1st Appellant to be presented to the Etubom’s Council, the Appellants heard that the 4th Respondent had been selected as the sole candidate of the Western Council for the stool. When the Appellants protested, the Western Council said that the 1st Appellant was not traditionally qualified to ascend the Obong’s throne, because he was not a capped Etubom. On 31st March, 2008, the 1st – 3rd Respondent Council proclaimed the 4th Respondent as the Obong-elect.

Aggrieved, the Appellants filed a suit at the High Court of Cross River State, wherein they sought several declarative and injunctive orders, essentially to nullify the presentation of the 4th Respondent as a candidate for the throne of Obong and his proclamation as the Obong-elect. In its judgement delivered on 30/1/2012, the trial Court granted all the reliefs sought by the Appellants. The trial court held that the Etubom’s Council had waived the requirement for the 1st Appellant to be capped and inducted into the Etubom’s Council to be qualified to be voted for as the Obong, and as such, they were estopped from disqualifying him. Dissatisfied, the two sets of Respondents filed separate appeals at the Court of Appeal. The Court of Appeal delivered its judgement on 4th July, 2013, allowing the appeal substantially. The Court of Appeal held that, the 1st Appellant was not traditionally eligible to be voted for as Obong of Calabar under the Efik native law and custom. The Appellate Court however set aside the selection and proclamation of the 4th Respondent as Obong of Calabar and ordered that the Etubom’s Council should conduct another process of selecting a new Obong with the participation of all qualified candidates including the 4th Respondent.  Aggrieved, the Appellants filed an appeal at the Supreme Court.

Issues for Determination 

The Supreme Court considered the following issues in its determination of the appeal.

1. Whether the 1st and 3rd Respondent’s Notice of Appeal was properly signed by a cognisable legal practitioner, as prescribed under Section 2(1) of the Legal Practitioners Act as to invoke the jurisdiction of the lower Court. 

2. Whether the Court of Appeal was right to have set aside the trial court’s finding that the Respondents waived the requirement for capping by a reigning Obong and induction into the Etubom’s Council of the Obong’s Palace, as a qualifying factor to be voted for as Obong of Calabar in favour of the 1st Appellant.

3. Whether the finding of the Court of Appeal that the 4th Respondent is qualified to contest for the throne of Obong of Calabar, is not contrary to the evidence evaluated before the trial court.

Arguments

On the 1st issue, counsel for the Appellant questioned the signature on the Amended Notice of Appeal filed by the 1st set of Respondents at the Court of Appeal. Counsel contended that there were eight names starting with “Mrs Nella Andem Rabana SAN” listed in the Notice; however it could not be deciphered who amongst them signed the process. He argued that this rendered the Notice of Appeal incurably defective, and this should have been the end of the Appeal.

In response, counsel for the 1st set of Respondents submitted that from the interpretation of Section 2 of the Legal Practitioners Act in OKARIKA v SAMUEL (2013) 7 NWLR (PT. 1352) 19, the process will be valid so long as all the persons listed therein are legal practitioners and it was signed one of them, and in the circumstance, it was clear that Mrs Nella Andem Rabana SAN is a legal practitioner within the context of Section 2 of the Legal Practitioners Act.

On the 2nd issue, counsel for the Appellant argued that the Western Council acted as the agent of the Etubom’s Council therefore whatever action they took or any waiver conceded by them is an act of the Etubom’s Council. He argued having screened the Appellant after which they placed him on a ballot to contest the election to the Obong’s throne, the Etubom’s council is deemed to have waived the requirement for him to be capped and inducted into the Etubom’s Council; and found him eligible for the Obong’s stool. 

On the other hand, respective counsel for the two sets of Respondents argued that the 1st Appellant had been invited for screening by the Western Council and not the Etuboms Council, and the Western Council’s action in screening the 1st Appellant cannot be deemed to be a waiver since the Western Council is not the body empowered to appoint the Obong of Calabar. 

On the 3rd issue, counsel for the Appellant argued that the Court of Appeal was wrong not to have taken into consideration the worthless nature of the unsigned and undated genealogical chart relied on by the 4th Respondent to overturn the Appellants’ unchallenged oral evidence on the declaration they were seeking, to the effect that the 4th Respondent is not qualified to contest for the Obong’s throne.

Court’s Judgement and Rationale

In deciding the 1st issue, the Supreme Court held that where it is clear that the person who signed a Notice of Appeal is a legal practitioner, and it is obvious to the Court that the person did indeed sign the said process, the failure to tick her name as the person who signed the Notice of Appeal will not invalidate the Notice of Appeal. The Court relied on its decision in WILLIAMS v ADOLD/STAMM INT’L (NIG) LTD (2017) 6 NWLR (PT. 1560) 1. The Court held that in this case, whilst there were eight names listed on the Amended Notice of Appeal, it was clear that the signature was that of Mrs Nella Andem Rabana SAN, whose name was directly under the signature. The absence of a tick beside her name could not therefore, invalidate the Amended Notice of Appeal.

On the 2nd issue, the Apex Court referred to Article 34(3) of the Efik Constitution, 2002 which provided that the ultimate decision of who succeeds as Obong of Calabar, is exclusively vested in the Etubom’s Council and no other. The Court held that the only role the Western Council had to play was to present an Etubom to the Etubom’s Council, which would then have the final say as to who to select amongst the candidates presented to the Etubom’s Council as the Obong. The question of waiver would not arise at screening stage which the Western Council had control over, and the acts of the Western Council in this regard cannot be deemed to be the acts of the Etubom’s Council. The Court further held that by Article 24 of the Efik Constitution, any Etubom of a Royal House nominated for succession to the Obong’s throne must be recognised as such by the Obong and the Etubom’s Council, and to be so recognised, the Etubom must have been presented and inducted into his Traditional Council and thereafter, presented and inducted into the Etubom’s Council of the Obong of Calabar and the traditional rites, include capping by a reigning Obong of Calabar. Article 24 did not merely say that a candidate selected for succession must be an “Etubom of a royal house”; it added that the Etubom of a royal house must be recognised as such by the Obong and Council. In the instant case, the 1st Appellant had not been capped and inducted into the Etubom’s Council, hence, he was not qualified to vie for the stool of the Obong of Calabar and the act of Western Council in screening him cannot be said to amount to a waiver of the requirement by the Etubom’s Council.

On the 3rd issue, the Court held that a Plaintiff who seeks a declaratory relief, has the burden to prove to the court that he is entitled to same. He is not allowed to point his fingers at any weakness, omission or default on the part of the Defendant, and must stand or fall on the strength of his own case. The Court referred to EMENIKE v PDP (2012) 12 NWLR (PT. 1315) 556. The Court held that it was obvious that the Appellants, instead of proving their entitlement to the declaration sought that the 4th Respondent is not qualified to be selected as Obong of Calabar by their own evidence, they chose to rely on what they saw as the weaknesses in the Respondents’ case to argue that the Court of Appeal was wrong to have set aside the finding of the court on that issue. It was the Appellants that had the burden to adduce credible evidence in proof of their claim, and the trial court had no business whatsoever foraying into the Respondents’ pleadings or evidence, to decide whether the Appellants were entitled to the declaration sought or not. 

Appeal Dismissed.

Representation

Joe Agi, SAN with O. F. Ekeugba for the Appellants.

Nella-Andem-Ewa Rabana, SAN with Kennedy Akaolisah for the first set of Respondents.

F.R.A.Williams Esq. for the second set of Respondents.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Report (NMLR)(An affiliate of Babalakin & Co.)